CAUSES of ACTION: Legal Negligence and “Suit within a suit” resolution of underlying premises liability claim moots legal negligence suit (Freeman vs. Becker Law Office)

Legal Malpractice, Premises Liability and “Suit Within a Suit”

Tonia Freeman vs. Becker Law Office, Kevin Renfro, Bubalo Heistand & Rotman, and Dianne E. Sonne
COA, Not Published 1/10/20014

This is a legal malpractice claim against a private organization operating from a government building at Fort Knox which was treated as a “suit within a suit”. After a jury rendered a verdict that the private organization (Toys for Tots) was not in possession of the premises where Tonia Freeman was an employee and received her injuries on a slip and fall, the legal negligence claim premised upon the premises liability basically went away.

NICKELL, JUDGE: This is a legal malpractice case in which Tonia Freeman alleges the Becker Law Office, PLC (BLO); Kevin Renfro, BLO’s managing 1 When the legal services contract at the heart of this appeal was executed in December 2004, the firm’s name was Bubalo & Heistand, PLC. The firm’s current name is Renfro, Bubalo, Heistand & Rotman, PLC. partner; the law firm of Bubalo, Heistand & Rotman, PLC (BHR);2 and Dianne E. Sonne, an attorney employed by BHR (collectively Defendants), failed to file a premises liability claim against the Marine Toys for Tots Foundation, Inc.3 (Foundation) before the one-year statute of limitations4 expired. Having carefully reviewed the jury’s verdict in favor of Defendants, we affirm the verdict and the trial court’s judgment for the simple reason that Freeman did not prove the Foundation was responsible for the building at which Freeman sustained a foot injury that progressed to above-the-knee amputation.

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On remand,15 the trial court applied the “suit within a suit” procedure discussed in Marrs v. Kelly, 95 S.W.3d 856 (Ky. 2003). At Defendants’ request, trial was bifurcated into two phases—phase 1 was to focus solely on the underlying premises liability claim and proof was to be restricted to whether Freeman would likely have succeeded on a claim against the Foundation if suit had been timely filed. If jurors found in favor of Freeman in phase 1, phase 2 would focus on the legal malpractice claim.

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Freeman’s underlying claim was one of premises liability. “Actionable negligence consists of a duty, a violation thereof, and consequent injury. The absence of any one of the three elements is fatal to the claim.” Illinois Cent. R. R. v. Vincent, 412 S.W.2d 874, 876 (Ky. 1967) (internal citations omitted). To succeed on the premises liability claim against the Foundation, Freeman had to establish the Foundation was responsible for Building 48. She failed to carry her burden. The warehouse was located on federal property controlled by the Army. Via Form 185, the Army had temporarily assigned use of the warehouse to 16 First name unknown.  “USMC” for storage. While Freeman argued the Foundation was in possession of Building 48, there was strong proof the Marines, not the Foundation, possessed the warehouse.

The jury heard the evidence and, as trier of fact, found the testimony offered by the defense to be more persuasive than that offered by Freeman, as was its prerogative. C ommonwealth v. Anderson, 9 34 S.W.2d 276, 278 (Ky. 1996). A question of fact was presented to the jury and there is no debate that the instruction about whether the Foundation possessed Building 48 was anything but proper. Following a review of the record, we cannot say the jury’s verdict was unsupported by the proof or contrary to law. See McCoy v. Kilgore’s Adm’r, 306 Ky. 678, 683, 209 S.W.2d 66, 69 (1948). We are confident that in light of the total lack of credible proof that the Foundation possessed Building 48, there was no means by which Freeman could have prevailed on the underlying premises liability claim.

Because Freeman failed to clear the critical first hurdle, proving likely success on the underlying claim against the Foundation, we have no reason to address the myriad of issues17 raised on this appeal, fascinating though they may be. For the foregoing reasons, the judgment of the Jefferson Circuit Court is AFFIRMED. 17

FN 17. The issues raised are whether: the trial court properly applied the “suit within a suit” procedure discussed in Marrs; party admissions were wrongly excluded; the trial court improperly restricted Freeman’s closing argument; the trial court erroneously allowed attorneys to give opinions on ultimate legal and factual issues; the trial court erroneously admitted evidence of Freeman’s alleged noncompliance with medical advice; and, a jury instruction on the “open and obvious doctrine” was incorrectly worded and could have been modified after jury deliberations were underway. Due to our resolution of this appeal, we leave these issues for another day and another case.

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