Civil Procedure (SJ): O’BRYAN V. CAVE (SC 9/21/2006)

CIVIL PROCEDURE:  Summary Judgment
DATE RENDERED: 9/21/2006

O’Bryan, an attorney, met with Claude in relation to a will and a deed, during which Claude requested O’Bryan prepare a will and a deed which would give his wife, Doris, a joint interest with the right of survivorship in Claude’s home. O’Bryan contends he advised Claude that executing the deed with a right of survivorship would cause the property to pass directly to Doris without having to go through the will, and, thus, Doris could renounce her interest in the will and take other interests pursuant to her dower rights. O’Bryan testified that Claude acknowledged the advice but insisted that he go ahead and draft both the will and deed to insure Doris’ ownership of the home when he died. Claude later returned to the office and executed both the deed and the will, which left Doris all of his real estate with the residuary to go to his sisters and nephews in equal shares.

Claude died in 1999, and in 2000 Doris executed a release under KRE 392.080, renouncing her interest in the will. Though O’Bryan claimed he never represented Doris or told her of her rights to renunciate, he did prepare the renunciation document. Cave, a nephew, then filed a legal malpractice claim against O’Bryan asserting that he did not advise Claude of Doris’ right to renounce the will, and that the renunciation cost Cave some $14,000.

O’Bryan filed for summary judgment, and the trial court granted such. The CAs reversed, and the Supremes granted discretionary review. The Supremes held that the trial court’s granting of summary judgment was proper in this case, noting that Cave had presented no evidence to show that O’Bryan had not advised Claude of Doris’ renunciation rights. Cave testified that he was not at O’Bryan and Claude’s meeting and that he did not know the substance of their conversation. All Cave had to argue, they noted, was the speculative notion that the will spoke for itself as the only evidence that was needed to overcome the MSJ. The Supremes dismantled the CAs reversal, dismissing its holding that a material issue of fact was created by the notion that no attorney would have drafted such an inconsistent deed. Nor was it impressed by the CAs holding that Cave was never given an opportunity to depose Doris, since O’Bryan offered her address to Cave, and he failed to subpoena her for testimony. The Supremes concluded that O’Bryan met his burden of showing there was no material issue of fact.

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