Seiller Waterman, LLC v. Rlb Properties, Ltd.

2018-SC-000538-DG
AND
2018-SC-000558-DG

SEILLER WATERMAN, LLC; PAMELA M. APPELLANTS/CROSS-APPELLEES
GREENWELL; GORDON C. ROSE; AND
PAUL J. HERSHBERG

ON REVIEW FROM COURT OF APPEALS
V. CASENO. 2017-CA-000024-MR
JEFFERSON CIRCUIT COURT NO. 16-CI-002522

RLB PROPERTIES, LTD. APPELLEE/CROSS-APPELLANT

OPINION OF THE COURT BY JUSTICE HUGHES

AFFIRMING IN PART, REVERSING IN PART, AND REINSTATING

RLB Properties, Ltd. filed a complaint against the law firm of Seiller

Waterman, LLC and three of its attorneys based upon their allegedly wrongful

acts undertaken on behalf of the firm’s clients, Skyshield Roof and Restoration,

LLC and Jacob Blanton. The challenged actions included the filing of an

invalid materialman’s and mechanic’s lien against commercial property owned

by RLB Properties and the subsequent filing of a third-party complaint against

RLB Properties. RLB Properties’ complaint against Seiller Waterman alleged

wrongful use of civil proceedings and abuse of civil process; civil conspiracy;
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slander of title; violation of KRS1 434.155 by filing an illegal lien; negligence;

and negligent supervision. The Jefferson Circuit Court dismissed all of these

claims either for failure to state a claim upon which relief can be granted or for

failure to file timely under the applicable statute of limitations. The Court of

Appeals affirmed the dismissals, except for the slander of title, civil conspiracy,

and KRS 434.155 violation claims, finding that KRS 413.245 would not time

bar the claims if malice were proven.

On discretionary review, we affirm in part and reverse in part. We affirm

the Court of Appeals’ decision that a professional negligence action may not be

brought against an attorney by a party who is neither the client nor an

intended third-party beneficiary of the attorney’s work. We further affirm that

when pleading wrongful use of civil proceedings against an attorney or law

firm, neither earning attorney fees nor filing a claim seeking damages on behalf

of a client is an improper purpose allegation sufficient to survive a motion to

dismiss. Finally, we reverse the Court of Appeals’ decision that KRS 413.245,

the one-year statute of limitations applicable to the rendering of professional

services, does not apply to claims against attorneys when malice is alleged.

FACTUAL AND PROCEDURAL BACKGROUND

The underlying contract dispute regarding building repairs

Skyshield Roof and Restoration, LLC (Skyshield), an Indiana limited

liability company, engaged Seiller Waterman to represent it in various matters

1 Kentucky Revised Statute.

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on or about March 10, 2014. Around that same date, Pamela M. Greenwell, a

member of the law firm, prepared and eventually executed and filed with the

Kentucky Secretary of State, a Certificate of Authority, authorizing Skyshield to

lawfully transact business in Kentucky.2 The genesis of the present action was

a contract dispute between Skyshield and RLB Properties (RLB) regarding

repairs to a commercial property.

The Marmaduke Building, a property owned by RLB in downtown

Louisville, suffered wind damage in 2012 and water damage in 2014. RLB

entered into a contract with Skyshield to repair the building. Sol Azteca’s

Louisville, Inc. (Sol Azteca), a tenant in the building, also contracted with

Skyshield and Jacob Blanton, Skyshield’s sole member, to repair damage to the

Sol Azteca restaurant caused by frozen water pipes. In June 2014, Sol Azteca

filed suit against Skyshield and Blanton alleging, among other things, that

Skyshield and Blanton breached the contract by failing to perform repairs in a

good and workmanlike manner and by failing to cdmplete repairs. Sol Azteca’s

complaint further alleged that RLB had already paid Skyshield hundreds of

thousands of dollars to repair the building.

On August 5, 2014, Skyshield filed a $1,500,000 materialman’s and

mechanic’s lien against the Marmaduke Building in the Jefferson County

Clerk’s Office for labor rendered and materials actually furnished after

2 In the Certificate, Greenwell agreed that S W Agent, LLC would serve as the
service of process agent for Skyshield. S W Agent, LLC is a Kentucky limited liability
company whose members and managers are also members of or attorneys associated
with Seiller Waterman, including Greenwell.

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provision for all just credits and set-offs. The lien, attested to by Blanton, was

prepared by Gordon C. Rose, an attorney associated with Seiller Waterman,

and was lodged for record by the law firm. On August 12, 2014, Greenwell and

Paul J. Hershberg, another attorney with Seiller Waterman, filed a verified

third-party complaint against RLB on behalf of Skyshield in the suit initiated

by Sol Azteca. The complaint alleged RLB owed Skyshield a substantial

amount for services performed under the parties’ contract.

RLB retained counsel and filed a response to the third-party complaint,

denying that RLB owed Skyshield any money. RLB also filed a counterclaim

against Skyshield and Blanton, alleging 1) breach of contract, 2) defective

workmanship, 3) strict liability, 4) fraud, 5) fraud in the inducement, 6)

conversion of entrusted money, 7) conversion of property, 8) unjust

enrichment, and 9) slander of title.

On January 29, 2015, RLB’s counsel wrote a letter to Seiller Waterman

advising that the lien was satisfied at the time it was filed, stating that it was

invalid on its face, and demanding that it be immediately released. Seiller

Waterman did not respond to the letter on Skyshield/Blanton’s behalf. On

March 6, 2015, RLB’s counsel filed a motion in the lawsuit to dissolve the

materialman’s and mechanic’s lien.

Less than a week later, on March 12, 2015, Seiller Waterman filed a

motion to withdraw as counsel for Skyshield and Blanton, citing irreconcilable

differences with its clients. The trial court orally granted Seiller Waterman’s

motion on March 16, 2015, and further granted Skyshield and Blanton thirty

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days in which to obtain new counsel. For reasons that are not apparent in the

record, the trial court’s written order was not entered by the clerk until May 29,

2015. Neither Seiller Waterman nor anyone else acting on behalf of Skyshield

and Blanton ever responded to RLB’s motion to dissolve the materialman’s and

mechanic’s lien.

On May 29, 2015, the trial court entered its order granting the motion to

dissolve the lien, stating:

The Materialman’s and Mechanic’s Lien Statement (“Lien
Statement”) recorded against the Marmaduke Building by
SkyShield Roof and Restoration, LLC (“SkyShield”) on August 5,
2014 is invalid on its face because SkyShield cannot substantiate
that the balance remaining due for labor rendered, and materials
actually furnished, after provisions for all just credits and set-offs,
is $1.5 million, or any amount. Therefore, the Court orders that
the lien is dissolved.

At the time the Lien Statement was filed on August 5, 2014,
the underlying lien had been satisfied because RLB paid money to
SkyShield in excess of the amount of labor performed and
materials provided, plus expenses. SkyShield was given proper
notice that the lien was satisfied and should be released no later
than January 29, 2015 when counsel for RLB sent a letter to that
effect to counsel for SkyShield. Accordingly, the Court hereby
directs and authorizes the Jefferson County Master Commissioner
to execute and file with the Jefferson County Clerk a release of the
lien.

Several weeks later, the trial court ordered Skyshield and Blanton to pay RLB

the attorney fees it incurred as a result of the filing of the motion to dissolve

the lien.

After a hearing and finding Skyshield and Blanton in default, the trial

court entered a July 31, 2015 judgment against them and in favor of RLB on

RLB’s counterclaim and dismissed Skyshield’s third-party complaint with

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prejudice. The trial court awarded RLB $924,767.39 in compensatory

damages, $2,000,000 in punitive damages, $68,257.29 for attorney fees, and

$63,400 in statutory fees under KRS 382.365 for Skyshield’s and Blanton’s

failure to timely release the materialman’s and mechanic’s lien.3

Compensatory damages consisted of $556,583.84 for monies paid to Skyshield

and Blanton for which no labor was rendered or materials furnished;4

$267,779.62 for amounts expended by RLB to complete the repairs;

$60,403.93 to remedy defective workmanship by Skyshield and Blanton; and

$40,000 for the value of personalty converted by Skyshield and Blanton.

The current action against Seiller Waterman

On May 31, 2016, RLB filed a verified complaint against Seiller

Waterman, LLC; Pamela M. Greenwell; Gordon C. Rose; and Paul J. Hershberg

(collectively “Seiller Waterman*) based upon their legal representation of

Skyshield and Blanton in the underlying building repair dispute and the

preparation of the materialman’s and mechanic’s lien. The complaint alleged

the statements contained in the lien to the effect RLB owed Skyshield

$1,500,000 for labor rendered and materials actually furnished were

groundless, were material misstatements of fact and were false, with all of this

being information which Seiller Waterman either knew or should have known.

RLB claimed wrongful use of civil proceedings (WUCP) and abuse of civil

3 All awards were to bear interest at the rate of 12% compounded annually until
paid.
4 This included $47,809.65 prejudgment interest.

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process; civil conspiracy in filing the mechanic’s lien and the verified third-

party complaint;5 slander of title; filing of an illegal lien in violation of KRS

434.155(1) (supporting a statutory action pursuant to KRS 446.070);

negligence; and negligent supervision. Seiller Waterman moved the trial court

to dismiss all of RLB’s claims pursuant to CR6 12.02 and CR 12.03. The trial

court granted Seiller Waterman’s motion in a detailed Opinion and Order

entered on November 30, 2016. The trial court dismissed RLB’s claims for

negligence and negligent supervision because a client’s adversary in litigation is

not in the class of nonclient intended beneficiaries who may bring a negligence

claim against an attorney; RLB’s claim for WUCP because RLB failed to allege

the required improper purpose; and RLB’s other claims as being time barred by

KRS 413.245.7 8

As noted, the Court of Appeals affirmed the trial court in part and

reversed and remanded in part. The Court of Appeals found the trial court

erred by dismissing the claims revolving around the filing of the mechanic’s

lien, i.e., the slander of title, the filing of an illegal lien, and the civil conspiracy

claims, but affirmed the trial court’s dismissal of the other claims,»

5 RLB alleges that the conspiracy between Seiller Waterman and Skyshield and
Blanton was designed to extort money from RLB.
6 Kentucky Rule of Civil Procedure.
7 Having concluded that the slander of title claim was barred due to the one-
year statute of limitations, the trial court concluded that the civil conspiracy claim,
which was premised on a valid slander of title claim, could not survive.
8 The trial court’s dismissal of RLB’s abuse of process and negligent supervision
claims, affirmed by the Court of Appeals, is not before this Court.

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 Both Seiller Waterman and RLB petitioned this Court for discretionary

review. We granted Seiller Waterman’s motion to consider whether the Court of

Appeals erred by concluding an allegation of malice removes a claim involving

the rendering of legal services from the one-year limitation period set forth in

KRS 413.245. We granted RLB’s motion to address whether the trial court and

the Court of Appeals erred by concluding a) that a litigant may not assert a

negligence claim against the attorney who represented that litigant’s former

adversary and b) that as to the wrongful use of civil proceedings claim, RLB did

not plead facts regarding the improper purpose element sufficient to survive a

motion to dismiss. We begin with the issues raised by RLB.

ANALYSIS

CR 8.01 requires a complaint to have a short and plain statement of the

claim showing that the pleader is entitled to relief. The purpose of the

complaint is to give the defendant adequate notice of the claims and the factual

grounds upon which they rest. Cincinnati, Newport & Covington Transp. Co. v.

Fischer, 357 S.W.2d 870, 872 (Ky. 1962); Nat. Res. & EnvtL Prot Cabinet v.

Williams, 768 S.W.2d 47, 51 (Ky. 1989). “[T]he general rule of pleading [is] that

facts and not conclusions should be pleaded, and that, if only the latter is

contained in the pleading, it will not authorize the granting of relief, unless

waived or cured ... by some recognized method . . . .” Begley v. Jones, 37

S.W.2d 44, 45 (Ky. 1931); see Rose v. Davis, 157 S.W.2d 284, 284 (Ky. 1941).

In lieu of filing an answer, CR 12.02 allows a defendant to file a motion

to dismiss the complaint for failure to state a claim upon which relief can be

8
granted. That motion admits as true the material facts of the complaint.

Upchurch v. Clinton Cnty., 330 S.W.2d 428, 429-30, 432 (Ky. 1959). If granted,

the motion serves to expediently terminate litigation, however, when ruling on a

motion to dismiss, the court’s “attention . . . should be directed only to the

sufficiency of the allegations in the complaint.” Ewell v. Central City, 340

S.W.2d 479, 480 (Ky. 1960). A “complaint should not be dismissed unless it

appears to a certainty that [the] plaintiff would not be entitled to relief under

any statement of facts which could be proved in support of the claim.”

Burkhart v. Community Med. Ctr., 432 S.W.2d 433, 434 (Ky. 1968). We review

the trial court’s dismissal, as a matter of law, de novo. Fox v. Grayson, 317

S.W.3d 1, 7 (Ky. 2010).

I. The trial court properly dismissed RLB’s wrongful use of civil
proceedings claim because it failed to allege an improper
purpose.

The trial court dismissed RLB’s wrongful use of civil proceedings claim

for failure to plead allegations sufficient to maintain a WUCP cause of action,

specifically failure to plead an improper purpose. In its complaint, RLB alleged

that Seiller Waterman acted with an improper purpose when it filed the third -

party complaint in the underlying building repair dispute because the law firm

intended to extort money from RLB by enriching itself through attorney fees

and by enriching its clients, presumably through an improper damage

recovery. We agree with the trial court and Court of Appeals that these

particular improper purpose allegations were not sufficient to survive the

motion to dismiss.

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 RLB’s wrongful use of civil proceedings claim alleged:

SW, Greenwell, and Hershberg knew or should have known
the Claims set forth in the Verified Third-Party Complaint in the
Lawsuit by Skyshield and/or Blanton were completely void of any
factual basis and/or support and were not supported by law or any
good faith argument for the extension of existing law. Indeed, said
Defendants knew or should have known at the time they filed the
Verified Third Party Complaint against RLB in the Lawsuit that not
only did RLB not owe Skyshield and Blanton any monies, but that
Skyshield and Blanton had received hundreds of thousands of
dollars from RLB for labor and materials never rendered or
furnished. In addition, during the litigation in the Lawsuit prior to
the withdrawal as counsel by Defendants, Skyshield and Blanton
admitted and acknowledged they did not render labor or perform
services to the Marmaduke Building for RLB in excess of the
amount of the money Skyshield had previously been paid by RLB.

The filing of the Third Party Complaint against RLB was
undertaken by SW, Greenwell and Hershberg for the improper and
unlawful purpose of extorting money from RLB such that said
Defendants could enrich themselves in the form of attorney fees,
and enrich their clients, Blanton and Skyshield as well. ... In
addition, the conduct of said Defendants was malicious, oppressive
and wanton and was designed to damage RLB ....

The purpose of a WUCP claim - or as it is sometimes referred to a

malicious prosecution claim9 - is to provide relief in cases in which a plaintiff

brings a groundless suit and has an improper motive for bringing it. Simply

put, a malicious prosecution or WUCP action protects “the interest in freedom

from unjustifiable litigation.” William L. Prosser, The Law of Torts, § 119, at

834 (4th ed. West 1971). However, to ensure that litigants with valid claims

will not be deterred from bringing their claims to court for fear of a subsequent

9 As explained more fully below, malicious prosecution has been used to
describe claims subsequent to wrongful criminal and civil proceedings but the more
precise terminology for cases such as this involving prior proceedings that are solely
civil is that used by RLB, wrongful use of civil proceedings.

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lawsuit, the remedy is not favored, and its requirements are strictly construed

against the malicious prosecution or WUCP plaintiff. See Martin v. O’Daniel,

507 S.W.3d 1, 7 (Ky. 2016).

As this Court recently stated with regard to a claim brought subsequent

to a dismissed criminal action:

A malicious prosecution action may be established by showing
that:

1) the defendant initiated, continued, or procured a criminal or
civil judicial proceeding, or an administrative disciplinary
proceeding against the plaintiff;

2) the defendant acted without probable cause;

3) the defendant acted with malice, which, in the criminal context,
means seeking to achieve a purpose other than bringing an
offender to justice; and in the civil context, means seeking to
achieve a purpose other than the proper adjudication of the claim
upon which the underlying proceeding was based;

4) the proceeding, except in ex parte civil actions, terminated in
favor of the person against whom it was brought; and

5) the plaintiff suffered damages as a result of the proceeding.

Id. at 11-12 (emphasis added) (clarifying the elements of the cause of action as

discussed in Raine v. Drasin, 621 S.W.2d 895, 899 (Ky. 1981)).

Raine was a malicious prosecution case brought by two physicians

against two attorneys who had filed a baseless malpractice suit against them.

Addressing jury instructions that produced a verdict in favor of the plaintiff

physicians, this Court pronounced the elements of malicious prosecution for

use in both criminal and civil contexts. Id. A few years later the Court viewed

Raine as part of the developmental path of the tort flowing from wrongful use of

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civil proceedings. Prewitt v. Sexton, 777 S.W.2d 891, 894-95 (Ky. 1989) (stating

“[i]n Raine . . ., our Court referred to the Restatement (Second) of Torts as

authority; in Mapother & Mapother, P.S.C. v. Douglas, [750 S.W.2d 430, 431

(Ky. 1988)], we adopted it as law on this subject[]”).10

Mapother distinguished malicious prosecution claims based on prior

criminal proceedings from the more appropriately named tort of “wrongful use

of civil proceedings” invoked where the prior proceedings were solely civil.

More importantly, the Mapother Court relied on the Restatement (Second) of

Torts, Wrongful Use of Civil Proceedings, § 674 General Principle, § 675

Existence of Probable Cause, and § 676 Propriety of Purpose (1977) in outlining

the WUCP tort. The “probable cause” and “improper purpose” principles set

out in Mapother and subsequently expounded on in Prewitt are central to

resolution of this case.

The Restatement sections relied upon by the Mapother Court remain

unchanged. Pertinently, § 674 states that one is subject to liability to another

for wrongful civil proceedings if “he acts without probable cause, and primarily

for a purpose other than that of securing the proper adjudication of the claim

in which the proceedings are based.” Section 675 states that one has probable

cause for initiating a civil proceeding “if he reasonably believes in the existence

10 Although our expression of the elements makes no distinction, see Raine, 621
S.W.2d at 899, and Martin, 507 S.W.3d at 11-12, in both Mapother, 750 S.W.2d at
431, and Prewitt, 777 S.W.2d at 983-94, we noted a preference for “wrongful use of
civil proceedings” as more accurate terminology to be used in cases such as this which
do not involve prior criminal proceedings.

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of the facts upon which the claim is based, and . . . correctly or reasonably

believes that under these facts the claim may be valid under the applicable

law.” The “Propriety of Purpose” provision, § 676 reiterates: “To subject a

person to liability for wrongful civil proceedings, the proceedings must have

been initiated or continued primarily for a purpose other than that of securing

the proper adjudication of the claim on which they are based.” 750 S.W.2d at

431.

With those general principles identified, we turn to the Restatement

(Third) of the Law Governing Lawyers § 57 Nonclient Claims—Certain Defenses

and Exceptions to Liability (2000), which states the rule regarding malicious

prosecution or wrongful use of civil proceedings as applied to lawyers:

A lawyer representing a client in a civil proceeding or procuring the
institution of criminal proceedings by a client is not liable to a
nonclient for wrongful use of civil proceedings or for malicious
prosecution if the lawyer has probable cause for acting, or if the
lawyer acts primarily to help the client obtain a proper
adjudication of the client’s claim in that proceeding.

Both the Restatement (Second) of Torts and the Restatement (Third) of the

Law Governing Lawyers contain like commentary explaining the probable

cause and improper purpose elements as applied to attorneys, with both also

providing commentary stating that the collection of attorney fees is not an

improper purpose. The Restatement (Second) of Torts § 674 cmt. d (1977)

states:

An attorney who initiates a civil proceeding on behalf of his client
or one who takes any steps in the proceeding is not liable if he has
probable cause for his action (see § 675); and even if he has no
probable cause and is convinced that his client’s claim is

13
 unfounded, he is still not liable if he acts primarily for the purpose
of aiding his client in obtaining a proper adjudication of his claim.
(See § 676). An attorney is not required or expected to prejudge his
client’s claim, and although he is fully aware that its chances of
success are comparatively slight, it is his responsibility to present
it to the court for adjudication if his client so insists after he has
explained to the client the nature of the chances.

If, however, the attorney acts without probable cause for belief in the
possibility that the claim will succeed, and for an improper purpose,
as, for example, to put pressure upon the person proceeded against
in order to compel payment of another claim of his own or solely to
harass the person proceeded against by bringing a claim known to
be invalid, he is subject to the same liability as any other person.
There is one situation that sometimes arises in civil proceedings
but does not occur in criminal proceedings. An attorney who
initiates civil proceedings on a contingent-fee basis with his client
is not for that reason to be charged with an improper motive or
purpose, since the contingent fee is a legitimate arrangement and
the interest of the attorney in receiving it is merely the ordinary
interest of a professional man in being paid for his services. But
by obtaining the authority of the client to bring the action he
procures its initiation; and if he does so without probable cause
and for an improper purpose other than the fee, he is subject to
liability under the rule stated in this Section. . . .

(Emphasis added.) Accord Restatement (Third) of the Law Governing Lawyers §

57 cmt. d (2000) (citing Restatement (Second) of Torts §§ 674, 675) (also stating,

“A desire to earn a contingent or other fee does not constitute an improper

motive.”); see also cmt. g discussing attorney fees in the context of a lawyer

advising or assisting a client to break a contract (“So long as the lawyer acts or

advises with the purpose of promoting the client’s welfare, it is immaterial that

the lawyer hopes that the action will increase the lawyer’s fees or reputation as

a lawyer or takes satisfaction in the consequences to a nonclient.”).

When addressing wrongful use of civil proceedings actions against

attorneys, we are mindful of an attorney’s many responsibilities, including

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promoting access to the legal system and administration of justice. See Ky.

Supreme Court Rule (SCR) 3.130, Rules of Professional Conduct; Hill v.

Wfllmott, 561 S.W.2d 331, 334 (Ky. App. 1978) (quoting Norton v. Hines, 123

Cal. Rptr. 237 (Cal. App. 1975)). Moreover, an attorney is required under our

ethical and civil rules to avoid filing a suit for any improper purpose, such as to

harass or to cause needless increase in the cost of litigation, and if the attorney

does so in violation of the rules then sanctions may be imposed. SCR 3.130,

CR 11. When balancing the attorney’s role to assist with a client’s access to

courts and the impact of meritless lawsuits, the attorney’s duty to loyally and

zealously represent his client must outweigh an adversary’s desire to avoid

legal action. In short, we find no reason to disfavor an attorney incidentally

earning fees while representing a client even if the client’s cause cannot and

ultimately does not prevail.

Thus, we agree with the philosophy represented in the Restatement

(Second) of Torts and the Restatement (Third) of the Law Governing Lawyers that

an attorney seeking to collect an attorney fee in the usual course of

representing a client is not acting for an improper purpose, a necessary

element of the wrongful use of civil proceedings claim. Even if the attorney

acts without probable cause to believe the client’s claim will succeed, the

improper purpose which may subject an attorney to liability to a nonclient

must be something other than simply earning a fee.11 Here, then, RLB’s

11 Courts in other jurisdictions faced with similar WUCP claims against
attorneys have adhered to this rule. See, e.g., LoBiondo v. Schwartz, 970 A. 2d 1007,
1033-37 (N.J. 2009) (outlining the circumstances in which an attorney may be liable

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allegation that Seiller Waterman initiated the underlying lawsuit for Skyshield

against RLB to earn fees may not be viewed as the statement of an improper

purpose which satisfies the WUCP element. Furthermore, merely describing

the law firm’s earning of fees as “extorting” money - a verb freighted with

criminal connotations - adds nothing because the allegation is still factually

insufficient. Other factual allegations beyond the customary aspects of client

representation, ie., performing legal services for a fee, are necessary to support

the improper purpose element; without those additional facts the claim stated

is an inappropriate pleading of a legal conclusion upon which relief may not be

granted. Begley, 37 S.W.2d at 45.

In response to these clear legal principles regarding improper purpose in

the context of a WUCP claim against a former adversary’s attorney, RLB argues

that its improper purpose pleading also includes allegations that Seiller

Waterman filed the lien without performing any background research and

similarly filed a baseless, frivolous lawsuit. RLB’s argument is apparently

based on the premise that the same evidence which establishes lack of

probable cause may support a reasonable inference that a party or his attorney

acted for a primary purpose other than securing an adjudication of the party’s

for malicious use of process and explaining that an attorney’s improper purpose must
be something other than the motivation to earn a fee); Nave v. Newman, 140 A. 3d
450, 456 (D.C. 2016) (explaining that only in rare circumstances will a party be
justified in suing his opponent’s lawyer and providing that as long as the lawyer acts
with the purpose of promoting the client’s welfare, it is immaterial that the lawyer
hopes the action will increase the lawyer’s fees).

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claims when filing and pursuing the underlying action. This confluence of two

separate elements of a WUCP claim is legally incorrect.

RLB essentially posits that the inference of an improper purpose based on

its lack of probable cause allegation and the direct improper purpose allegation

as to Seiller Waterman’s earning legal fees combine to provide adequate

support for the improper purpose element of its WUCP claim. Having already

decided that RLB’s allegation that Seiller Waterman initiated the underlying

action to earn legal fees is insufficient to support the improper purpose

element, we consider whether an inference of an improper purpose arising from

a lack of probable cause allegation is sufficient for the WUCP claim to survive

the motion to dismiss.

In a traditional malicious prosecution action, the premise that malice

may be inferred from lack of probable cause has been part of our jurisprudence

for over a century. For example, Wood v. Weir, 44 Ky. 544, 546 (1845), a civil

malicious prosecution case against an attorney, states that “(m)alice may be

implied from the want of probable cause, but this implication may be explained

and repelled by facts and circumstances indicating a fair and legitimate

purpose, and honest pursuit of a claim believed to be just.” Mosier v.

McFarland provides a more complete expression of the rule:

In an action for malicious prosecution, both malice on the
part of the defendant and want of probable cause for his
prosecution of the plaintiff must be alleged and proved, although
malice may be inferred from proof of the absence of probable
cause. The jury, however, may not invariably imply malice from
the mere want of probable cause if all the facts disclosed lead to a
different conclusion. If malice was to be inferred from want of

17
 probable cause alone, then there would be no necessity for having
a distinct requirement that malice be proven, for want of probable
cause would then be the only element necessary to be established.

106 S.W.2d 641, 642 (Ky. 1937) (internal citations omitted).

Thus, in a malicious prosecution or WUCP action, lack of probable cause

alone cannot support a legally sufficient inference that the attorney acted with

an improper purpose. Independent evidence of malice is required. In this

instance, because the earning of attorney fees may not be considered

independent evidence of an improper purpose, any inference of malice from

RLB’s lack of probable cause allegations is not sufficient to support the WUCP

improper purpose element.12

RLB also argues before this Court that the source of payment from which

Seiller Waterman sought attorney fees is a distinguishing factor in the WUCP

analysis. Specifically, RLB emphasizes that the law firm demanded in the

third-party complaint filed on behalf of Skyshield/Blanton that its attorney fees

be paid by RLB. We find the argument unpersuasive. First, RLB did not make

that “source of payment” allegation within the statement of the WUCP claim in

its complaint. Second, even if Seiller Waterman’s demand for attorney fees

from RLB were part of the factual allegations within RLB’s complaint, a source

of payment other than the law firm’s client does not change the underlying

premise that an attorney seeking payment for professional services rendered is

12 Indeed, after reviewing the allegations in this case the trial court, citing
Prewitt, 777 S.W.2d at 894, expressly noted that “improper purpose will not be
inferred from lack of probable cause.”

18
not acting with an improper purpose. Indeed, RLB itself references its

judgment for recovery of attorney fees from Skyshield and Blanton in the

underlying action, noting that “Quite often, opposing attorneys recover and are

the beneficiary of attorney fees from the opposing party.”

Finally, the preceding analysis also disposes of RLB’s allegation that

Seiller Waterman improperly sought to extort money to enrich its clients.

Without any factual allegations showing how Seiller Waterman sought to

“extort” money beyond the filing of the claim seeking damages (an ordinary part

of securing a proper adjudication of a claim), RLB’s allegation is not sufficient.

Begley, 37 S.W.2d at 45. Again, although RLB seeks to use the allegation that

Seiller Waterman filed a fraudulent lien to support its extortion claim, this

allegation, assuming it may support the inference of lack of probable cause in

filing the third-party complaint, cannot support the improper purpose element.

As explained supra, without a proper independent allegation of an improper

purpose, any improper purpose which may be inferred from a lack of probable

cause is not sufficient to maintain the malicious prosecution claim.

In summary, neither the desire to earn attorney fees nor the filing of a

claim seeking damages on behalf of a client constitutes an improper purpose

sufficient to sustain a WUCP action against an attorney who represented a

former adversary. Additionally, the record in this case contains no factual

allegations to support the claim that Seiller Waterman was “extorting money”

in some fashion beyond filing what was eventually established as a meritless

claim against RLB. Under these circumstances, the trial court properly

19
concluded that RLB’s complaint did not allege any facts, which when taken as

true under our CR 12.02 standard, would be sufficient to establish the

improper purpose element of a wrongful use of civil proceedings claim

Consequently, the trial court did not err when it dismissed RLB’s WUCP claim

for failure to state a claim upon which relief can be granted, and the Court of

Appeals properly affirmed on that issue.

II. The trial court properly dismissed the negligence claim
because Seiller Waterman did not owe RLB a duty.

The trial court dismissed RLB’s negligence claim against Seiller

Waterman because RLB was not a client of the firm and was not an intended

third-party beneficiary of its legal work. As a matter of law, a party such as

RLB is not entitled to assert a negligence claim against the legal counsel who

represented an opposing party in prior litigation, because no duty flows from

that counsel to their client’s adversary. Thus, RLB’s negligence claim against

Seiller Waterman, former counsel for Skyshield and Blanton, clearly failed to

state a claim upon which relief could be granted.

In the negligence count of its complaint, RLB alleged that Seiller

Waterman “owed certain duties to Skyshield and Blanton which by operation of

law, extend to RLB, to act in a reasonably prudent manner with regard to then-

conduct and actions.” Before the trial court, Seiller Waterman cited Hill v.

WUlmott, 561 S.W.2d 331, in support of its argument that RLB’s negligence

20
claim must be dismissed because any duty owed to Seiller Waterman’s clients

did not extend to others and certainly not to their clients’ adversary. We agree.

In Hill, a medical doctor brought suit alleging that Willmott, opposing

counsel in an underlying malpractice action, failed to investigate the facts and

law prior to filing suit, id. at 335, and thereby violated his duty under the then-

Rules of Appellate Procedure to avoid the appearance of professional

impropriety, id. at 333. The Hill Court explained that the violation of the duty

set forth in the Rules - which embodied the principles enunciated in the

American Bar Association’s Code of Professional Responsibilities and

established the minimum level of competence for the protection of the public -

does not necessarily give rise to a cause of action. Id. at 333-34. Assuming an

attorney owes a duty independent of that set forth in the Rules and Code, the

Hdl Court considered to whom that duty is owed and concluded: “An attorney

may be liable for damage caused by his negligence to a person intended to be

benefited by his performance irrespective of any lack of privity . . . ” Id. at 334

(quoting Donald v. Garry, 97 Cal. Rptr. 191, 192 (Cal. App. 1971); emphasis

added). Needless to say, an adverse party in a lawsuit is not the intended

beneficiary of the work an attorney performs on behalf of his or her own client.

As the Hill Court properly concluded, an adverse party’s action against an

attorney for negligence (or malpractice) in improperly initiating suit is limited to

one for malicious prosecution or wrongful use of civil proceedings. Id. at 334-

35 (citing Norton, 123 Cal. Rptr. 237; Rose v. Davis, 157 S.W.2d 284 (Ky.

1941)). Otherwise, “allowfing] a party to bring a negligence action against the

21
adverse attorney would have a chilling effect on the number of meritorious

claims filed and this cannot be tolerated under our system.” Id. at 335.

RLB argues that whether a nonclient may sue prior opposing counsel is

unclear in our caselaw and cites Hill as standing for the proposition that under

the facts of this case Seiller Waterman could be held liable to RLB for

negligence. RLB emphasizes the portion of Hill quoting Rose, 157 S.W.2d 284:

An attorney is not ordinarily liable to third persons for his acts
committed in representing a client. It is only where his acts are
fraudulent or tortious and result in injury to third persons that he is
liable. To hold an attorney responsible for damages occasioned by
an erroneous judicial order, even though the error be induced by
him, would make the practice of law one of such financial hazard
that few men would care to incur the risk of its practice.

Hill, 561 S.W.2d at 334-35.

We must disagree with RLB. While the quoted language viewed in

isolation suggests that our predecessor Court did not limit nonclient suits

against attorneys to malicious prosecution or WUCP actions, a full reading of

the case dispels that notion. Furthermore, this Court noted in Mapother that

Rose and Hill (and Raine for that matter) are cases in which this Court and the

Court of Appeals have held that “ordinary elements of negligence do not apply

in cases involving suits by opposing litigants or non-parties against the

attorney in that suit.” 750 S.W.2d at 431. Upon review, we reiterate this time-

honored rule.

Although urged by RLB to adopt a rule allowing nonclient negligence

actions, we remain convinced that the existing approach is necessary to

maintain free access to our courts. See Hill, 561 S.W.2d at 334-35 (explaining

22
the public policy reasons for disallowing negligence actions against attorneys

by a prior adversary). Because Kentucky law does not recognize a negligence

action against the attorney for a prior adversary in litigation, the trial court

properly dismissed RLB’s negligence claim against Seiller Waterman.

Accordingly, we affirm the Court of Appeals on this issue as well.

III. The trial court properly dismissed RLB’s slander of title, civil
conspiracy, and filing an illegal lien claims as time barred.

The trial court dismissed three of RLB’s claims - the KRS 434.155 illegal

lien claim, the slander of title claim, and the dependent civil conspiracy claim13

- as being time barred by KRS 413.245, the statute of limitations applicable to

actions arising from the rendering of professional services. The Court of

Appeals reversed, holding that it would be unconscionable for an attorney to

escape slander of title liability under the one-year limitation in KRS 413.245

through the pretense of providing professional services if indeed a

materialman’s and mechanic’s lien were filed for some malicious purpose. In

that court’s view, a slander of title claim is then outside the scope of negligent

performance of professional services, rendering KRS 413.245 inapplicable.

Because RLB’s slander of title claim against Gordon Rose and Seiller Waterman

alleged that the lien was filed without a factual basis and done maliciously to

damage RLB, and the claim was dismissed through a motion for judgment on

the pleadings, the Court of Appeals reversed the trial court and remanded for

discovery on the claim. Employing the same reasoning, the Court of Appeals

13 RLB does not argue that the civil conspiracy is an independent claim.

23
concluded RLB’s KRS 434.155(1) wrongful lien and civil conspiracy claims,

which also contained allegations that Seiller Waterman and its attorneys acted

maliciously, were not time barred.

On discretionary review to this Court, Seiller Waterman argues that

allegations of malice do not remove a claim from the reach of KRS 413.245.

RLB continues to insist that the one-year statute of limitations in KRS 413.245

cannot bar its slander of title claim because Seiller Waterman did not render

professional services either directly to or for the intended benefit of RLB.

Agreeing with the trial court’s analysis regarding the applicable statute of

limitations, we reverse the Court of Appeals on this point.

KRS 413.245 states in full:

Notwithstanding any other prescribed limitation of actions which
might otherwise appear applicable, except those provided in KRS
413.140, 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. Time shall not commence against a party under
legal disability until removal of the disability.

“Professional services” are defined as “any service rendered in a profession

required to be licensed, administered and regulated as professions in the

Commonwealth of Kentucky, except those professions governed by KRS

413.140.” KRS 413.243. Indisputably, the practice of law is such a profession

whose members’ services are covered by KRS 413.245. Abel v. Austin, 411

S.W.3d 728, 737 (Ky. 2013).

24
 To address whether allegations that professional services were rendered

with malice would remove a claim against an attorney from the scope of KRS

413.245, we turn to principles of statutory construction.

In construing statutes, our goal, of course, is to give effect to
the intent of the General Assembly. We derive that intent, if at all
possible, from the language the General Assembly chose, either as
defined by the General Assembly or as generally understood in the
context of the matter under consideration. We presume that the
General Assembly intended for the statute to be construed as a
whole, for all of its parts to have meaning, and for it to harmonize
with related statutes. We also presume that the General Assembly
did not intend an absurd statute or an unconstitutional one. Only
if the statute is ambiguous or otherwise frustrates a plain reading,
do we resort to extrinsic aids such as the statute’s legislative
history; the canons of construction; or, especially in the case of
model or uniform statutes, interpretations by other courts.

Shawnee Telecom Res., Inc. v. Brown, 354 S.W.3d 542, 551 (Ky. 2011) (internal

citations omitted).

KRS 413.245, when read in conjunction with KRS 413.243 which makes

clear the referenced professional services include the practice of law, is

unambiguous. Pertinently, whether brought in tort or contract, a civil action

commenced against an attorney arising out of any act or omission in rendering,

or failing to render, professional services for others must be brought within one

year. The parties in this case do not dispute that Seiller Waterman was

practicing law when the attorneys at that law firm prepared and filed the

mechanic’s lien, the action on which RLB premises its claims that Seiller

Waterman slandered its title, engaged in a conspiracy with Skyshield, and

violated the illegal lien provisions of KRS 434.155. The Court of Appeals

nevertheless determined that RLB’s claims did not actually arise out of

25
professional services performed by Seiller Waterman if those otherwise

professional services were performed with malice.14

The Court of Appeals’ conclusion that KRS 413.245 is limited to claims

free from malice cannot be discerned from the plain language expressed in the
X
statute. The statute does not refer to malice or contain any language from

which the presence or absence of malice might be inferred as relevant to the

statute’s applicability. Without language restricting the application of KRS

413.245 to claims not involving malice, the plain language of the statute

directs that the one-year limitation applies to any claim against an attorney

arising out of any act or omission in rendering or failing to render professional

services. Obviously, the legislature was free to include a malice exception or

other limiting language, but it did not do so. A court may not “add or subtract

from the legislative enactment nor discover meaning not reasonably

ascertainable from the language used.” Beckham v. Board ofEduc., 873

S.W.2d 575, 577 (Ky. 1994). Under these time-honored statutory construction

principles, we must reject the interpretation of KRS 413.245 adopted by the

Court of Appeals. Regardless of whether malice is alleged, claims arising from

14 Like the Court of Appeals, RLB does not cite authority, within Kentucky or
from other jurisdictions, for the proposition that alleging an attorney, or any other
professional, acted with malice removes a claim from the ambit of the statute of
limitations applicable to all claims arising from professional services. If the mere
addition of “with malice” or “maliciously” could avoid the one-year statutory
limitations period adopted by our General Assembly, use of that language would likely
become a routine end-run around the statute at least at the pleadings stage in all
actions against professionals whose services are encompassed by KRS 413.245.

26
an act or omission in the rendering of, or failing to render, professional services

are governed by KRS 413.245 and must be brought within one year.

Alternatively, RLB contends that its slander of title claim is governed by

the five-year statute of limitations in KRS 413.120, citing Ballard v. 1400

Willow Counsel of Co-Owners, Inc., 430 S.W.3d 229, 236 (Ky. 2013). Ballard

states, “Although not specifically mentioned, slander of title claims are

governed by KRS 413.120(7), which applies to ‘]a]n action for an injury to the

rights of the plaintiff, not arising on contract and not otherwise enumerated.”

Id. Seiller Waterman counters that when a slander of title claim is asserted

against attorneys and their law firm the controlling precedent is actually Abel

v. Austin.

In Abel, numerous clients brought an action against their former

attorneys alleging fraud, misrepresentation, and breach of fiduciary duty when

the clients did not receive funds from a settlement. 411 S.W.3d at 730. The

attorneys argued that the one-year limitation in KRS 413.245 applied to the

claims, rather than the general five-year limitation in KRS 413.120. Id. at 737.

Along with the statutory principles outlined above, the Abel Court was guided

by two other principles:

“The applicable rule of statutory construction where there is both a
specific statute and a general statute seemingly applicable to the
same subject is that the specific statute controls.” Parts Depot, Inc.
v. Beiswenger, 170 S.W.3d 354, 361 (Ky. 2005) (quoting Meyers v.
Chapman Printing Co., Inc., 840 S.W.2d 814, 819 (Ky. 1992)).
Additionally, where an apparent conflict in statutes exists, the
“later statute is given effect over an earlier statute.” Bowling v.
Kentucky Dep’tof Corr., 301 S.W.3d 478, 491 (Ky. 2009) (quoting
[Troxell v. Trammell, 730 S.W.2d 525, 528 (Ky. 1987)]).

27
Id. at 738 (footnote omitted).

The Abel Court concluded that KRS 413.245 applied to the clients’

claims because it “relates exclusively to civil actions brought against providers

of professional services, such as attorneys, for injury arising out of that

service,” and is thus more specific (and more recently enacted) than KRS

413.120(7) or (L2). Id. The Court ended the analysis with its contextual

conclusion: “We are compelled by our analysis to conclude that claims brought

by clients or former clients against attorneys for acts or omissions arising out

of the rendition of professional services are governed exclusively by the one-

year limitation periods established by KRS 413.245. The provisions of KRS

413.120 are not applicable.” Id. at 739. Citing this statement’s reference to

“claims brought by clients and former clients,” RLB contends that KRS 413.245

does not extend to claims brought against attorneys by nonclients. We must

disagree.

By its plain, unambiguous language, KRS 413.245 applies to civil actions

arising out of any act or omission in rendering or failing to render professional

services. Nothing in the statute limits its application to only those claims

brought by individuals or entities who engaged the professional to provide such

services. KRS 413.245 thus applies to any civil action against an attorney

arising out of any act or omission in rendering or failing to render professional

services without regard to the identity of the claimant. The trial court properly

concluded that a slander of title claim brought against Seiller Waterman by

28
nonclient RLB was time barred by KRS 413.245 after one year, and thus relief

could not be granted.

CONCLUSION

For the foregoing reasons, we affirm in part and reverse in part the Court

of Appeals’ Opinion rendered in this case and thereby reinstate the Opinion

and Order of the Jefferson Circuit Court.

All sitting. All concur.

COUNSEL FOR APPELLANTS/CROSS-APPELLEES:

James Patrick Grohmann
O’BRYAN, BROWN & TONER, PLLC

COUNSEL FOR APPELLEE/CROSS-APPELLANT:

David Bradley Mour
LAW OFFICE OF DAVID B. MOUR

COUNSEL FOR AMICUS CURIAE,
KENTUCKY DEFENSE COUNSEL, INC.:

David W. Kramer
DRESSMAN, BENZINGER & LAVELLE PSC

Darrin W. Banks
PORTER, BANKS, BALDWIN 8b SHAW, PLLC

29
 2018-SC-0538-DG
2018-SC-0558-DG

SEILLER WATERMAN, LLC; PAMELA M. APPELLANTS\CROSS-APPELLEES
GREENWELL; GORDON C. ROSE; AND,
ALSO PAUL J. HERSHBERG

ON REVIEW FROM COURT OF APPEALS
CASE NO-2017-CA-0024-MR
V. JEFFERSON CIRCUIT COURT NO. 16-CI-002522

RLB PROPERTIES, LTD. APPELLEE/CROSS-APPELLANTS

ORDER DENYING PETITION FOR REHEARING

The Petition for Rehearing, filed by Appellant, RLB Properties, LTD of the

Opinion of the Court, rendered July 9th, 2020 is DENIED.

All sitting. All concur.

ENTERED: September 24, 2020.