RENDERED: MARCH 1, 2024; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2023-CA-0211-MR

OWEN NATION AND CAROL 

NATION APPELLANTS 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE ANNIE O’CONNELL, JUDGE

ACTION NO. 18-CI-006007

JOHN A.G. PADDOCK APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: THOMPSON, CHIEF JUDGE; EASTON AND GOODWINE, 

JUDGES.

EASTON, JUDGE: The Appellants (the “Nations”) ask us to reverse the summary 

judgment granted to their former attorney, the Appellee (“Paddock”). Because the 

circuit court correctly concluded that the applicable one-year statute of limitations 

barred the Nations’ claims, we affirm.
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FACTUAL AND PROCEDURAL BACKGROUND 

Paddock was an attorney for the Nations for over thirty years. Issues 

arose about his services between 2010 and 2015. The Nations believed Paddock 

had not handled various matters properly. There was a claim about insurance 

proceeds paid with respect to a property the Nations were buying. When another 

property was sold, Paddock retained a large sum, supposedly without explanation. 

There was another case involving title to a property, which Paddock had settled, 

supposedly without approval by the Nations. The Nations had also paid a fee of 

$5,000 to Paddock for filing a patent on a gaming invention, but the Nations never 

saw Paddock do anything on this, and they hired another attorney to complete the 

work. 

On July 31, 2015, new counsel (who still represents the Nations in this 

matter) sent a letter to Paddock terminating his services and requesting return of 

client files. The Nations filed a bar compliant on November 13, 2015. Part of the

purpose of the bar complaint was to obtain the Nations’ files. The bar complaint 

would eventually be summarily dismissed without any findings on January 8, 

2018.

As the bar complaint proceeded, the Nations filed a circuit court case1

for replevin. Replevin is an ancient common law action to obtain an order from a 

1

Jefferson Circuit Court Civil Action No. 16-CI-005528. 
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court for the return of personal property. Replevin included the ability to seek 

damages for any wrongful detention of the property. See Halcomb v. Phipps, 240 

S.W. 363 (Ky. 1922). This common law action has been largely displaced by 

codification of the right to obtain possession. See, e.g., KRS2 425.011 et seq.

(statutes governing writs of possession).

The replevin case was filed on November 7, 2016. While these 

overlapping matters proceeded, documents were provided by Paddock. A hearing 

on a motion to dismiss the replevin action took place on June 8, 2017. Before that 

hearing, on May 22, 2017, the Nations’ counsel received the documents sought, 

and he acknowledged reviewing them on June 7, 2017, the day before the hearing.

The circuit court dismissed the replevin action by Order3entered on June 20, 2017. 

The Nations did not appeal that dismissal. 

This present case was not filed until October 15, 2018, more than one 

year and almost four months later. The Complaint mirrors the allegations of 

2 Kentucky Revised Statutes.

3 The circuit court concluded that it did not have subject matter jurisdiction of the replevin claim 

because the simultaneous bar complaint proceeding addressed Paddock’s retention of the same 

documents. The circuit court had subject matter jurisdiction over the replevin claim. A cited 

case does not suggest otherwise. In Rose v. Winters, Yonkers & Rousselle, P.S.C., 391 S.W.3d 

871 (Ky. 2012), the Kentucky Supreme Court simply held that a violation of an ethical rule by 

itself cannot be the basis for a civil suit against an attorney, although such a violation may serve 

as evidence in such a civil suit. This does not mean the circuit court could not order an attorney 

to return property of a client, which does not require a proven violation of an ethical rule. Of 

course, the circuit court certainly could have chosen to defer to the bar proceedings as a matter of 

comity or for judicial economy before acting simultaneously. The reason for the dismissal of the 

replevin action is not germane to this case, although the timing of the dismissal may be relevant. 
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wrongdoing in the 2015 bar complaint as can be seen from comparison of the prior 

bar complaint and Paragraphs 13-25 of the Complaint. This includes explanation 

of the damages sustained (with amounts) because of Paddock’s alleged actions. 

The circuit court entered summary judgment because the one-year statute of 

limitations barred the Compliant. This appeal follows.

 STANDARD OF REVIEW

“The standard of review on appeal of a summary judgment is whether 

the circuit judge correctly found that there were no issues as to any material fact 

and that the moving party was entitled to a judgment as a matter of law.” Pearson 

ex rel. Trent v. Nat’l Feeding Systems, Inc., 90 S.W.3d 46, 49 (Ky. 2002). 

Summary judgment is only proper when “it would be impossible for the 

respondent to produce evidence at the trial warranting a judgment in his favor.” 

Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). 

In ruling on a motion for summary judgment, the court is required to construe the 

record “in a light most favorable to the party opposing the motion . . . and all 

doubts are to be resolved in his favor.” Id.

As summary judgment involves only legal questions if there are no 

genuine issues of material fact, an appellate court does not defer to the trial court’s 

decision and will review the legal issue de novo. Lewis v. B & R Corp., 56 S.W.3d 

432, 436 (Ky. App. 2001). In this case, there were no disputed questions of fact as 
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to when certain events occurred, and these undisputed facts must be applied to the 

legal question of the application of a statute of limitations.

ANALYSIS

The sole issue for this appeal is the application of the statute of 

limitations.4 KRS 413.245 states in relevant part:

Notwithstanding any other prescribed limitation of 

actions which might otherwise appear applicable, . . . 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.

We first see that, regardless of what the action against the attorney is called, this 

one-year limitation period applies. For example, a claim that the attorney acted 

fraudulently is within the one-year limitation period, not the five-year period for 

4 We decline to address at length the alternate argument advanced by Paddock of res judicata as 

it is not necessary to affirm the circuit court. The bar complaint proceedings addressed violation 

of ethical rules. The bar association could not adjudicate damages to be recovered by clients for 

malpractice, which does not require violation of a specific ethical rule. In this case, the bar 

association summarily dismissed the bar complaint without substantial explanation and made no 

findings.

Res judicata is not as broad as Paddock suggests. See Kentucky Bar Association v. Greene, 386 

S.W.3d 717 (Ky. 2012) (prior court judgment awarding attorney’s fee did not prevent 

consideration of ethical violation for the fee charged). The more potentially meritorious 

argument for res judicata was the failure to assert the malpractice claims in the replevin action, 

although the replevin action could be considered a limited and specific action not intended to 

address malpractice claims. See Yeoman v. Commonwealth, Health Policy Bd., 983 S.W.2d 459, 

465 (Ky. 1998) (a previous suit may be deemed to have adjudicated every matter which could 

have been brought in support of the cause of action). 
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fraud. Abel v. Austin, 411 S.W.3d 728, 737-39 (Ky. 2013). See also Seiller 

Waterman, LLC v. RLB Properties, Ltd., 610 S.W.3d 188, 202-05 (Ky. 2020). 

To ameliorate any harshness of the one-year limitation, the statute 

provides two measurements for this period. It may be measured one year from the 

occurrence or one year from the reasonable discovery of a cause of action against 

the attorney. Occurrence and cause of action are synonymous. Under either 

measurement, there is no question that the complained of acts by Paddock and the 

Nations’ knowledge of damages flowing from those acts occurred well before a 

year prior to the commencement of this suit.

To reach this conclusion, we must determine when the Nations had a 

cause of action to assert. The Nations argue they could not have earlier asserted 

their claims because the amounts of their damages were not certain. Part of their 

argument relies on Michels v. Sklavos, 869 S.W.2d 728 (Ky. 1994).

The holding in Michels does not apply in this case. The court in 

Michels recognized the rule for claims of malpractice by an attorney involving 

litigation not yet completed – a claim which requires proving “a case within [a]

case.” Id. at 729. If the case is ongoing and thus the client may yet win, then any 

claim of damages because of the malpractice of that case by the attorney is 

speculative. No cause of action exists until the case is final. Id. at 731. This 

specific rule was reaffirmed in a much more procedurally convoluted case also 
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cited by the Nations: Doe v. Golden and Walters, PLLC, 173 S.W.3d 260 (Ky. 

2005).

The transactions the Nations complain about here had been 

completed by the time they filed the bar complaint in 2015. There was no 

completion of a court case to await. Because Michels does not apply, the fact that 

the bar complaint was not dismissed until January of 2018 is immaterial. As we 

have previously explained, a bar complaint is to determine ethical violations. It is

not a civil action. The bar complaint could not have resolved any civil claims the 

Nations had against Paddock. 

To have a cause of action requires only injuries resulting from a 

wrongful act. Michels, supra, at 732. A cause of action accrues when the claimant 

has an “irrevocable [and] non-speculative injury.” Id. at 730 (citation omitted). As 

we will see, this does not mean the Nations had to know the precise amounts of 

damages they could prove before their cause of action existed and the statute of 

limitations period began to run.

In lawsuits, injuries are measured in damages which may be awarded. 

But damages are often unliquidated and must be proven as to amount. CR5 8.01(2) 

prohibits the listing of specific amounts for unliquidated damages in a complaint. 

The Nations complied with this rule in Paragraph 27 of their Complaint.

5 Kentucky Rules of Civil Procedure.
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Paddock relies upon Saalwaechter v. Carroll, 525 S.W.3d 100 (Ky. 

App. 2017). Recognizing the rule in Michels about “irrevocable [and] nonspeculative injury[,]” this Court in Saalwaechter explained that such an injury has 

occurred when a claimant can be certain that damages will flow from the attorney’s 

acts. This is not a quantitative requirement. For a cause of action to ripen, the 

damages do not have to translate into a specific dollar amount. Id. at 106. The 

Kentucky Supreme Court has recently clarified and upheld the law on this subject 

consistent with Saalwaechter. Wolfe v. Kimmel, 681 S.W.3d 7, 26 (Ky. 2023).

The Nations insist that the circuit court should have applied equitable 

principles to toll the statute of limitations. Paddock contends that this argument 

was not preserved as it was not specifically presented to the circuit court. We have 

repeatedly cautioned that litigants are not permitted to make arguments for the first 

time to an appellate court. We do not allow appellants “to feed one can of worms 

to the trial judge and another to the appellate court.” Kasey v. Beshear, 626 

S.W.3d 204, 210 (Ky. App. 2021) (citations omitted).

Considering the general equitable argument advanced, we note the 

Nations reliance on Adams v. Ison, 249 S.W.2d 791 (Ky. 1952), and its progeny. 

Indeed, a wrongdoer may take actions and make statements which may compel 

consideration of equity in the tolling of a statute of limitations. But this is not such 

a case.
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“Equity follows the law.” Adamson v. Adamson, 635 S.W.3d 72, 81

n.8 (Ky. 2021). When a legal rule clearly governs the rights of the parties, equity 

will not alter the application of that rule. The discovery option under KRS 413.245 

allows for those situations where an attorney has prevented the client from 

discovering the harm done.

The Nations knew of Paddock’s actions and the damages flowing 

from it by the time they filed the bar complaint in 2015. At the latest, the Nations 

knew of the wrongful acts by Paddock and that damages were certain to flow from 

those acts when the replevin case was dismissed after the production of the 

requested documents. That occurred in June 2017. The filing of the second circuit 

court suit happened well over a year later.

CONCLUSION 

The applicable statute of limitations barred the claims which are the 

subject of the Complaint in this case. The Jefferson Circuit Court properly granted 

summary judgment and is AFFIRMED. 

ALL CONCUR.
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BRIEF FOR APPELLANTS:

C. Gilmore Dutton, III

Shelbyville, Kentucky

BRIEF FOR APPELLEE:

Donald L. Cox 

William H. Mooney

Louisville, Kentucky