RENDERED: SEPTEMBER 11, 2026; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2025-CA-0995-MR
ELIZABETH DAY APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE MELISSA L. BELLOWS, JUDGE ACTION NO. 18-CI-006440
MICHAEL F. LAWRENCE AND APPELLEES LAWRENCE & LAWRENCE, PLLC
OPINION
REVERSING AND REMANDING
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BEFORE: COMBS, KAREM, AND MCNEILL, JUDGES. KAREM, JUDGE: Appellant Elizabeth Day (“Day”) appeals from the Jefferson Circuit Court’s order granting summary judgment in favor of Appellees Michael F. Lawrence (“Lawrence”) and Lawrence & Lawrence, PLLC (“PLLC”). Based on our review of the record and applicable law, we reverse the circuit court’s order granting summary judgment and remand for further proceedings consistent with this Opinion.
FACTUAL AND PROCEDURAL BACKGROUND Day purchased property located at 1128 Samuel Street in Louisville, Kentucky on June 10, 2016. Day began renovations and repairs on June 18, 2016, which she claims revealed mold and serious structural issues. Day alleged that such issues had not been disclosed to her by the individual who sold her the property (“Seller”), and about which Day believed Seller knew or should have known.
The purchase between Day and Seller was undertaken pursuant to a written purchase agreement, specifically a Greater Louisville Association of Realtors Residential Real Estate Contract (the “Contract”). The Contract provided that any disputes were required to first be submitted to mediation and then binding arbitration if mediation was not successful. The Contract required that any demand for mediation be made within 365 days of when the party demanding mediation knew or should have known of the existence of their claim. If mediation was unsuccessful, binding arbitration was required to take place not more than 365 days after the date of the initial demand for mediation.
On July 19, 2016, Day retained the services of an attorney, Appellee Lawrence, for the purpose of pursuing her claims against the Seller. Subsequently, Lawrence sent a formal demand for mediation and arbitration to the Seller on June 21, 2017. Day contends that the letter was returned to Lawrence marked as
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“unclaimed, unable to forward.” Day further claims that Lawrence failed to take any further steps in connection with her claims against Seller. Specifically, she alleges Lawrence never followed through with the other steps required under the Contract, such as selecting a mediator or participating in mediation or arbitration. Under the terms of the Contract, any arbitration was required to have taken place on or before June 2017.
On July 10, 2018, Day learned that Lawrence had failed to timely demand mediation take place, and that neither mediation nor arbitration had even occurred. Thus, any claims that Day may have had against the Seller under the Contract were lost. On November 7, 2018, Day filed a legal malpractice lawsuit against Lawrence and the LLP in Jefferson Circuit Court, seeking damages for their alleged negligence in failing to pursue the contractual mediation and arbitration requirements.
Unfortunately, Day had difficulties with the repair of the home. Prior to the filing of her lawsuit against Lawrence, Day had filed a suit in December 2017 against Measured to Perfection, LLC (“MTP”) for failure to adequately perform the repairs on the home. It was assigned to a different division of Jefferson Circuit Court than her suit against Lawrence. In this lawsuit, she sought compensatory damages from MTP of over $100,000.00. Pursuant to a motion filed by Lawrence in the legal malpractice case, the circuit court held Day’s lawsuit
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against Lawrence and the LLP in abeyance on August 2, 2019, pending final judgment in the contractor suit against MTP.
However, while the legal malpractice case was still in abeyance, on February 8, 2021, the circuit court entered an order pursuant to Kentucky Rule of Civil Procedure (“CR”) 77.02,1 asking for the parties to show cause why no pleadings or other steps had been taken for over a year. Day responded that the case was still being held in abeyance.2 The circuit court entered an order on March 10, 2021, stating that good cause had been shown and remanding the CR 77.02 sua sponte order.
Then on August 21, 2023, Day settled the contractor suit against MTP for $11,500.00 and the circuit court entered an order dismissing the suit with prejudice based on the parties’ settlement. Approximately a year and a half later on May 5, 2025, in the legal malpractice case, Lawrence filed a motion for summary judgment. The circuit court ultimately determined that Day’s legal
1 CR 77.02(2) states, “[a]t least once each year trial courts shall review all pending actions on their dockets. Notice shall be given to each attorney of record of every case in which no pretrial step has been taken within the last year, that the case will be dismissed in thirty days for want of prosecution except for good cause shown. The court shall enter an order dismissing without prejudice each case in which no answer or an insufficient answer to the notice is made.” 2 Even though the circuit court entered an order holding the case in abeyance until Day’s suit against MTP was resolved, the court issued numerous CR 77.02 “housekeeping” motions requesting the parties to show cause as to why no steps were being taken in the case. Each time, Day provided such good cause by explaining that the circuit court had determined that the suit should continue to be held in abeyance. Moreover, the circuit court vacated an October 24, 2024, order dismissing for lack of prosecution. In that December 3, 2024, order, the court stated that the case was being restored to the active docket.
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malpractice claim was unripe when filed in 2018 because “[t]here was simply no alleged harm at the time of the filing, as it depended on the MTP case outcome, per Defendants.” Therefore, the circuit court granted Appellees’ motion for summary judgment. This appeal followed.
We will discuss further facts as they become applicable.
ANALYSIS
1. Standard of Review
The standard of review on appeal of summary judgment is whether the circuit court correctly found that there “is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” CR 56.03. “The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991) (citation omitted). Summary “judgment is only proper where the movant shows that the adverse party could not prevail under any circumstances.” Id. Review is de novo. Coomer v. CSX Transp., Inc., 319 S.W.3d 366, 370–71 (Ky. 2010) (footnote citation omitted).
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2. Discussion
Kentucky Revised Statute (“KRS”) 413.245 is the applicable statute of limitations for Day’s legal malpractice claims against Lawrence. KRS 413.245 provides in relevant part:
[A] civil action, whether brought in tort or contract, arising out of any act or omission in rendering, or failing to render, professional services for others shall be brought within one (1) year from the date of the occurrence or from the date when the cause of action was, or reasonably should have been, discovered by the party injured.
In Wolfe v. Kimmel, the Kentucky Supreme Court analyzed the foregoing statutory language as follows:
As this Court has previously explained, KRS 413.245 actually contains two separate statutes of limitations. The first is a statute limiting to “one year from the date of the occurrence,” and the second statute provides a limit from one year “from the date when the cause of action was, or reasonably should have been, discovered by the party injured,” if that date is later in time than the occurrence date. Because “occurrence” and “cause of action” are used synonymously within the statute, the occurrence date is the date that a cause of action has accrued.
A cause of action is deemed to accrue in Kentucky where negligence and damages have both occurred, subject in certain kinds of actions to the additional requirement of discovery of the claim by the plaintiff . . . .
[T]he use of the word “occurrence” in KRS 413.245 indicates a legislative policy that there should be some definable, readily
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ascertainable event which triggers the statute. . . . [T]his is the date of “irrevocable non-speculative injury.”
In other words, “a ‘wrong’ requires both a negligent act and resulting injury. Damnum absque injuria, harm without injury, does not give rise to an action for damages against the person causing it,” and “mere knowledge of some elements of a tort claim, such as negligence without harm, is insufficient to begin running the limitations period where the cause of action does not yet exist.”
The second statute of limitations within KRS 413.245, the discovery date, is the codification of a common law principle recognized in cases such as Tomlinson v. Siehl, [459 S.W.2d 166 (Ky. 1920),] and Louisville Trust Co. v. Johns–Manville Products[, 580 S.W.2d 497 (Ky. 1979)]. The discovery rule “presumes that a cause of action has accrued, i.e., both negligence and damages has occurred, but that it has accrued in circumstances where the cause of action is not reasonably discoverable[.]” The discovery rule acts to toll the statute of limitations “until the claimant knows, or reasonably should know, that injury has occurred.”
Accordingly, the discovery date is only implicated if a complaint for professional malpractice was not filed within one year of the occurrence date, and it “often functions as a ‘savings’ clause or ‘second bite at the apple’ for tolling purposes.”
681 S.W.3d 7, 12–13 (Ky. 2023) (footnotes and citations omitted).
In this case, the “discovery” provision of KRS 413.245 is not implicated, as Day’s suit for legal malpractice was filed within one (1) year from the date of its alleged occurrence. Specifically, Day alleged in her complaint that, on or about July 10, 2018, she learned that Lawrence had failed to timely demand
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mediation take place, and that neither mediation nor arbitration had occurred. Thus, any claims that Day may have had against the Seller under the Contract were forever barred. She filed suit in November 2018; thus, the “discovery language” in KRS 413.245 is inapplicable.
Therefore, because “occurrence” has been construed as synonymous with “cause of action” in KRS 413.245, “the legal harm” must be “fixed and non- speculative.” Wolfe, 681 S.W.3d at 12–13. As described by a panel of this Court, “[o]ne type of negligent conduct on which a legal malpractice claim might be based is litigation negligence, which has been described as ‘the attorney’s negligence in the preparation and presentation of a litigated claim resulting in the failure of an otherwise valid claim[.]” Doe v. Golden & Walters, PLLC, 173 S.W.3d 260, 271 (Ky. App. 2005) (footnote citations omitted). Moreover, “[w]hen a claim for legal malpractice is based on litigation negligence, whether the attorney’s negligence has caused any injury or damages necessarily is contingent on the final outcome of the underlying case.” Id. As discussed in Wolfe:
[t]his is sound reasoning: because “occurrence date”
means “cause of action” under KRS 413.245, if a claimant cannot allege that they have suffered a legal harm, that their attorney’s malpractice was the proximate cause of that harm, and that they have incurred damages, they have no cause of action, and the occurrence date statute of limitations has not yet been triggered.
Wolfe, 681 S.W.3d at 17.
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However, “how does one determine when irrevocable and non-
speculative damages have occurred when a legal malpractice claim is not for litigation negligence?” Id. Our Supreme Court acknowledged that previous Kentucky cases involving the subject had:
shoehorned the reasoning of [cases involving claims for litigation negligence], into . . . case[s] that did not involve litigation negligence. The consequence of this, whether intended or not, was that it created a rule that a cause of action cannot accrue, and therefore the occurrence limitation does not begin to run, in a non-
litigation negligence claim until the claimant can state with certainty the exact dollar amount of damages they incurred.
Id. at 19.
Moreover, the Wolfe Court highlighted the predicament as follows:
The issue, then, is whether the damage . . . may be said to be “fixed and non-speculative.” Though the meaning of this language is anything but clear, this much is certain: the court of appeals could not have intended these words to be interpreted as plaintiff has suggested.
This is so because, if plaintiff’s interpretation is accepted, the limitations period for professional negligence actions would be effectively tolled until damages could be specified as an ascertainable sum certain. This, of course, is not the law.
With respect, plaintiff overstates the degree to which—under Kentucky law—damages must be defined in professional negligence claims. Whatever it means, “fixed and non-speculative” does not mean that damages, to trigger the initiation of the limitations period, must be translatable into a specified dollar amount. Kentucky law has never required as much[.]
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...
Judging from its brief, plaintiff has interpreted “fixed and non-speculative” to be a quantitative requirement—in other words, plaintiff cites this language in support of the proposition that a professional negligence cause of action does not accrue until a would-be plaintiff understands or should reasonably understand the full extent of his damages. Read in context, however, the phrase is more properly interpreted as tolling the limitations period for professional negligence claims until plaintiff is certain that damages will indeed flow from defendant’s negligent act.
The court held that “the Board did know of damage on April 5, 1999. It was not a ‘mere probability’ that the Board would suffer damage; rather, the damage had already been done.
Wolfe, 681 S.W.3d at 21 (emphasis in original) (footnote citations omitted).
Based on the foregoing, the Wolfe Court definitively stated, “for a non-litigation legal malpractice claim, a claimant’s damages are considered irrevocable and non-speculative when the claimant is reasonably certain that damages will indeed flow from the defendant’s negligent act.” Id. at 10 (emphasis added).
In this case, it is undisputed that Day and Lawrence had an attorney-
client relationship. Moreover, Day’s damages were irrevocable and non- speculative in July 2018: according to her complaint against Lawrence, because Lawrence had failed to timely and correctly demand and complete mediation
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and/or arbitration, Day lost any claims that she may have against the Seller under the Contract. Day was therefore reasonably certain at that time that damages would indeed flow from Lawrence’s negligence.
While Day may not have known the exact dollar amount of her damages, that is not required under Kentucky law. Indeed, the Kentucky Supreme Court has explicitly stated:
As previously mentioned, Kentucky law has never required that damages be ascertainable in a specific dollar amount to state a cause of action for professional negligence. Accordingly, to require that a claimant know an exact dollar amount of damages before a cause of action for non-litigation legal malpractice can accrue—
i.e., for the occurrence date to be triggered under KRS 413.245—is plainly wrong.
Id. at 25.
While the professional negligence case was held in abeyance because Day was under an obligation to mitigate her damages, that goes to the amount of her damages and not the existence of damages. Lawrence conflates both injury and damages mitigation with claim accrual. However, under Wolfe, damages are “irrevocable and non-speculative” once the harm is reasonably certain, even if exact dollar amounts are later adjusted. The subsequent settlement with the contractor only mitigated damages; it did not negate the fact that the malpractice had already caused actionable harm to Day. The resolution of the claim against the contractor by Day did not erase the claim that existed when Day filed this lawsuit;
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it simply created a factual question about partial recovery and/or mitigation, which was an issue for the jury to address.
In this case, the harm was reasonably certain once Day became aware that the timeframes for mediation and arbitration under the Contract came and went with no action on Lawrence’s part. At that point, while Day might not have known the full extent of her damages in terms of the precise dollar amount or the extent to which she might have to mitigate her damages based on the results of her suit against MTP, the fact of her injury was certainly “irrevocable” and “non- speculative.”
CONCLUSION
For the foregoing reasons, we reverse the circuit court’s order granting summary judgment and remand for further proceedings consistent with this Opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
David B. Mour J. Allan Cobb Louisville, Kentucky Andrea R. Hunt Louisville, Kentucky