CourtListener opinion 10180256

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UNITED STATES DISTRICT COURT 
 EASTERN DISTRICT OF KENTUCKY 
 SOUTHERN DIVISION 
 LONDON 

Crescent Mortgage Company, Civil No. 6:20-159-KKC-HAI 
 Plaintiff, 
v. OPINION AND ORDER 
Brien Freeman and Freeman 
& Childers, LLP, 
 Defendants. 
 ** ** ** ** ** 
 This matter is before the Court on motions for summary judgment filed 
by Plaintiff Crescent Mortgage Company [DE 41] and Defendants Brien 
Freeman and Freeman & Childers, LLP [DE 40]. The parties have responded 
and replied to each motion, and the matter is ripe for the Court's review. For 
the reasons set forth below, Plaintiff Crescent Mortgage Company's motion 
will be granted in part and denied in part, and Defendants' motion will be 
denied. 
 BACKGROUND 
 In April 2013, on behalf of its investor Crescent Mortgage Company, 
Whitaker Bank agreed to loan $114,000 to Mac and Cindy Whitaker to 
refinance their residential loan for property located at 126 Casey Road, 
Corbin, Kentucky. 
 Whitaker Bank retained the law firm of Freeman & Childers to 
conduct a title examination and prepare a title report for the Whitakers' 
property at 126 Casey Road. Although Whitaker Bank's Title Order form did 
not specify the deed book or page at which the deed for the property was 
recorded, the address was clearly included on the form. 
 The Defendants did not run a title search for the property in response 
to Whitaker Bank's April 2013 Title Order. Instead, they "updated" a title 
opinion that had been prepared in response to a title request that Whitaker 
Bank had sent with respect to a different loan on a different property five 
months earlier. In November 2012, Whitaker Bank had processed another 
loan for the Whitakers with respect to a different property, an 8.15-acre 
unimproved parcel. In connection with that November 2012 loan, the bank 
had submitted a Title Request to Freeman & Childers on November 11, 2012. 
The November 2012 Title Request requested a "Title Opinion on property in 
Whitley County per attached deed." The deed attached to the Title Request 
included the legal description of the 8.15-acre property and a reference to the 
deed book page and number. 
 When Freeman & Childers received the April 5, 2013 Title Order, it 
assumed it was for the same property as the November 2012 Title Request. 
The firm therefore simply "updated" its November 2012 title opinion and 
incorrectly incorporated the legal property description of the 8.15-acre parcel 
into the April 2013 Title Report. 
 Based on the Freeman & Childers title report prepared in April 2013, 
the bank and the Whitakers entered into a mortgage agreement, which 
contained the erroneous property description from the title report. Then, 
Crescent sold the loan to MMS Mortgage Services, who in turn sold it to 
Freddie Mac. 
 Later, the Whitakers defaulted on the loan regarding the 126 Casey 
Road property and MMS tried to initiate foreclosure on the property, only to 
learn that the mortgage did not encumber the 126 Casey Road property, but 
the 8.15-acre unimproved property, which was of substantially lesser value. 
Upon discovering the error, MMS sought relief from the title insurance 
company, which denied the claim because the 126 Casey Road property was 
not described in the title insurance policy. After that discovery, Freddie Mac 
demanded that MMS repurchase the mortgage because Freddie Mac does not 
purchase mortgages on unimproved property. Accordingly Crescent, through 
MMS, repurchased the loan for $99,380.97. 
 Defendants do not deny that they included the incorrect property 
description on their April 2013 title report. Instead, Defendants asserts that 
this action by Crescent is barred by the statute of limitations, that this Court 
does not have jurisdiction, and that any damages are speculative. Moreover, 
the law firm asserts that summary judgment is appropriate because Crescent 
has failed to prove legal malpractice through expert testimony. Crescent 
asserts that summary judgment is appropriate because it has proven its claim 
for legal malpractice and the material facts are not in dispute. 
 ANALYSIS 
I. Standard of Review 
 Although a federal court sitting in diversity applies state substantive 
law, it "uses the federal standard for summary judgment." Tompkins v. 
Crown Corr, Inc., 726 F.3d 830, 837 n.4 (6th Cir. 2013). Summary judgment 
is proper where the pleadings, depositions, answers to interrogatories, and 
admissions on file, together with the affidavits, if any, show that there is no 
genuine issue as to any material fact and the movant is entitled to judgment 
as a matter of law. FED. R. CIV. P. 56(c). A party seeking summary judgment 
bears the initial burden of informing the Court of the basis for its motion with 
particularity. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The party 
opposing the motion must then make an affirmative showing of a genuine 
dispute in order to defeat the motion. Alexander v. CareSource, 576 F.3d 551, 
558 (6th Cir. 2009). To do so, the non-moving party must direct the Court's 
attention "to those specific portions of the record upon which it seeks to rely 
to create a genuine issue of material fact." In re Morris, 260 F.3d 654, 655 
(6th Cir. 2001). 
 "At the summary-judgment stage, we view the facts in the light most 
favorable to the nonmoving party (usually by adopting the plaintiff's version 
of the facts) only if there is a genuine dispute as to those facts." EEOC v. Ford 
Motor Co., 782 F.3d 753, 760 (6th Cir. 2015) (quoting Scott v. Harris, 550 U.S. 
372, 380 (2007)) (cleaned up). "[N]ot every issue of fact or conflicting inference 
presents a genuine issue of material fact." Street v. J.C. Bradford & Co., 886 
F.2d 1472, 1477 (6th Cir. 1989). "Mere speculation will not suffice to defeat a 
motion for summary judgment: ‘[T]he mere existence of a colorable factual 
dispute will not defeat a properly supported motion for summary judgment. 
A genuine dispute between the parties on an issue of material fact must exist 
to render summary judgment inappropriate.'" Powell v. Cherokee Ins. Co., 919 
F. Supp. 2d 873, 877 (W.D. Ky. 2013) (quoting Monette v. Elec. Data Sys. 
Corp., 90 F.3d 1173, 1177 (6th Cir. 1996), abrogated on other grounds by 
Lewis v. Humboldt Acquisition Corp., Inc., 681 F.3d 312 (6th Cir. 2012)). "A 
‘genuine' dispute exists when the plaintiff presents ‘significant probative 
evidence' ‘on which a reasonable jury could return a verdict for her.'" Ford 
Motor Co., 782 F.3d at 760 (quoting Chappell v. City of Cleveland, 585 F.3d 
901, 913 (6th Cir. 2009)). 
II. Defendants' Motion for Summary Judgment 
 A. Statute of Limitations 
 Kentucky law has established a one-year statute of limitations for 
professional negligence claims, including legal malpractice: 
 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. 
Ky. Rev. Stat. Ann. § 413.245. 
 Here, the parties agree that a one year statute of limitations applies, 
but they disagree on when Crescent's claim accrued—that is, the date on 
which the statute began to run. Defendants argue that the claim accrued, and 
therefore the statute began to run, "when [mortgage] documents were signed, 
recorded and received by" Crescent in 2013. [DE 40-1 at 15.] Crescent argues 
that its claim did not accrue until January 2020, when its injuries became 
non-speculative by virtue of Freddie Mac demanding MMS repurchase the 
mortgage, which triggered Crescent's contractual obligations to repurchase 
the loan. 
 The Kentucky Supreme Court has held that that the statute of 
limitations in Ky. Rev. Stat. § 413.245 establishes "two separate statutes of 
limitations": (1) the "occurrence" limitation and (2) the "discovery" limitation. 
Michels v. Sklavos, 869 S.W.2d 728, 730 (Ky. 1994). "The ‘occurrence' 
limitation period begins to run upon the accrual of the cause of action." 
Queensway Fin. Holdings Ltd v. Cotton & Allen, P.S.C., 237 S.W.3d 141, 147 
(Ky. 2007). The "accrual rule is relatively simple: A cause of action is deemed 
to accrue in Kentucky where negligence and damages have both occurred." 
Id. (quoting Sklavos, 869 S.W.2d at 730) (cleaned up). "The use of the word 
‘occurrence'" in § 413.245 "indicates a legislative policy that there should be 
some definable, readily ascertainable event which triggers the statute." Id. 
(citing Sklavos, 869 S.W.2d at 730). And the "so-called ‘triggering event' is 
‘the date of irrevocable non-speculative injury.'" Saalwaechter v. Carroll, 525 
S.W.3d 100, 105 (Ky. Ct. App. 2017) (quoting Doe v. Golden & Walters, PLLC, 
173 S.W.3d 260, 271 (Ky. Ct. App. 2005)). Put simply, the "statute of 
limitations for legal malpractice does not begin to run until the legal harm 
becomes fixed and non-speculative." Doe, 173 S.W.3d at 271 (cleaned up). 
 The "discovery" limitation period, on the other hand, "begins to run 
when the cause of action was discovered or, in the exercise of reasonable 
diligence, should have been discovered." Queensway, 237 S.W.3d at 147 
(citing Sklavos, 869 S.W.2d at 730). The discovery provision is only applicable 
if the complaint was filed more than one year after the date of the 
"occurrence." Id. at 148. In that regard, the discovery provision "often 
functions as a ‘savings' clause or ‘second bite at the apple' for tolling 
purposes." Saalwaechter, 525 S.W.3d at 105 (quoting Queensway, 237 S.W.3d 
at 148). 
 "Where a plaintiff claims that its suit was filed within the limitations 
period under both the accrual and discovery rules, as Crescent does here, the 
Court must evaluate the timeliness of the claim "separately under both the 
accrual and discovery rules." Queensway, 237 S.W.3d at 148. Accordingly, the 
Court's analysis will begin with the occurrence rule, and then, if necessary, 
turn toward the discovery rule. 
 1. Occurrence 
 Legal malpractice has not occurred—and such a claim does not 
accrue—"until there has been a negligent act and reasonably ascertainable 
damages are incurred." Pedigo v. Breen, 169 S.W.3d 831, 833 (Ky. 2004). The 
Defendants' allegedly negligent acts occurred in 2013, when they prepared 
the title opinion, mortgage, and other documents related to Whitaker Bank's 
loan to the Whitakers. "But under the [legal] malpractice statute of 
limitations, 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." Queensway, 237 S.W.3d 
at 148 (citing Sklavos, 569 S.W.2d at 731–32). "The question becomes, then, 
when did [Crescent's] damages become fixed and non-speculative?" EQT 
Prod. Co. v. Vorys, Sater, Seymour & Pease, LLP, No. 15-146-DLB-EBA, 2018 
WL 1996797, 2018 U.S. Dist. LEXIS 72687, at *23 (E.D. Ky. Apr. 27, 2018). 
 Crescent's legal malpractice claim is not based on "litigation 
negligence," but rather based on "legal work that was not part of formal 
litigation"—in other words, transactional or drafting negligence. Faris v. 
Stone, 103 S.W.3d 1, 5 (Ky. 2003). In a transactional negligence case, "the 
critical factor that delays accrual [is] the existence of ongoing negotiation or 
litigation, the outcome of which determines whether the plaintiff was injured 
by the alleged malpractice." EQT Prod. Co., 2018 U.S. Dist. LEXIS 72687, at 
*30. A plaintiff's injury can be irrevocable and non-speculative "even if [the 
plaintiff] may not have known the full extent of his damages in terms of the 
precise dollar amount." Saalwaechter, 525 S.W.3d at 107. What matters is 
that the "plaintiff is certain that damages will indeed flow from defendant's 
negligent act," not that the exact amount of damages is certain. Id. at 106 
(quoting Bd. of Educ. of Estill Cnty. v. Zurich Ins. Co., 180 F. Supp. 2d 890 
(E.D. Ky. 2002)). 
 Meade County Bank v. Wheatley is instructive on this point. 910 S.W.2d 
233 (Ky. 1995). In Meade County Bank, the Kentucky Supreme Court 
determined that the attorney's allegedly negligent title opinion, which failed 
to disclose a prior recorded mortgage, did not give rise to a fixed and non-
speculative injury until the foreclosure sale because "[p]rior to that date, [the 
Bank] had only a fear that they would suffer a loss on the property" and 
"[t]hat fear was not realized as damages until the sale of the property." Id. at 
235. 
 In this case, Crescent's injury did not become fixed and non-speculative 
until January 2020, when Freddie Mac demanded MMS repurchase the 
mortgage and Crescent's contractual obligation to MMS was triggered. Prior 
to that point, Crescent at best "had only a fear" it would suffer a loss, and 
"[t]hat fear was not realized as damages" until it became contractually 
obligated to repurchase the mortgage from Freddie Mac. Crescent could not 
be "certain that damages would indeed flow from defendant's negligent act" 
until Freddie Mac made that demand. Saalwaechter, 525 S.W.3d at 106. 
 Defendants' argument that Crescent's injury became fixed and non- 
speculative in April 2013 is unconvincing. Even if the Court were to accept 
Defendants' contention that Crescent knew or should have known the 
property description was incorrect at that time, damages were still not certain 
to flow from the error. For example, the Whitakers could have paid the 
mortgage or made improvements on the accidentally encumbered 8.15-acre 
parcel and substantially increased its value, or they could have simply 
performed on the mortgage. After the Whitakers defaulted and MMS 
discovered the erroneous property description in the mortgage, damages were 
still not certain to flow to Crescent because title insurance could have covered 
MMS's claim. Until these other potential avenues of recourse failed, 
Crescent's damages were speculative. The "occurrence" that fixed those 
damages and point at which they became non-speculative was when 
Crescent's contractual obligation to repurchase the mortgage was triggered. 
At that point, it was reasonably clear that Crescent would suffer some loss 
because of the Defendant's alleged negligence. 
 Kentucky's one-year statute of limitations did not begin to run until its 
damages became fixed and non-speculative on January 16, 2020, when 
Freddie Mac demanded the mortgage be repurchased, and Crescent's 
contractual obligations to repurchase the mortgage were triggered. Crescent 
filed this lawsuit on July 28, 2020, just over six months after the statute 
began to run. Thus, the lawsuit is timely as it was filed well within the one-
year limit set by Kentucky law. The Court will therefore deny Defendants' 
request for summary judgment as to the statute of limitations. 
 B. Amount in Controversy/Mitigation of Damages 
 Defendants argue that Court does not have subject matter jurisdiction 
over the action because Crescent had a duty to mitigate its damages, and had 
it done so, the amount in controversy would not exceed $75,000 as required 
by 28 U.S.C. § 1332(a). Crescent argues that the affirmative defense of failure 
to mitigate does not relate to the amount in controversy requirement, and 
that the amount in controversy is the $91,931.30 in damages that Crescent 
seeks to recover from Defendants.1 
 Diversity jurisdiction requires two elements: complete diversity of the 
parties and an amount in controversy exceeding $75,000. 28 U.S.C. § 1332. 
As the party invoking federal diversity jurisdiction, Crescent has to the 
burden of demonstrating by competent proof that both the complete diversity 
and amount in controversy requirements are met. Cleveland Hous. Renewal 
Project v. Deutsche Bank Tr. Co., 621 F.3d 554, 559 (6th Cir. 2010). Since the 
parties do not contest whether the complete diversity requirement is 
satisfied, the Court will only address the amount in controversy. 
 Crescent claims the amount in controversy is $91,931.30—the amount 
of money it paid to repurchase the mortgage. Unless the plaintiff seeks 
unspecified damages, "the sum claimed by the plaintiff controls" the amount 
in controversy. Everett v. Verizon Wireless, Inc., 460 F.3d 818, 822 (6th Cir. 
2006). Because a "fair reading" of the damages specified in the complaint and 
other evidence in the record shows that the amount in controversy exceeds 
$75,000, Crescent has met its burden to prove the amount in controversy by 
a preponderance of the evidence. Shaffer v. Brink's U.S., No. 2:10-cv-331, 

1 In its complaint, Crescent claims damages of $99,380.97 [DE 1 at 5.] However, in its 
response to Defendants' motion for summary judgment, Crescent claims the amount in 
controversy is a different amount—$91,931.30. [DE 42 at 8.] This appears to be based on an 
"affidavit of indebtedness" cited in the Defendants' motion, which they claim shows the 
remaining debt on the loan at the time Crescent repurchased it was $91,931.30. [DE 40-1 at 
16.] However, whether the amount in controversy is $99,380.97 as claimed in the complaint 
or $91,931.30 is immaterial to this analysis, as the jurisdictional requirement is satisfied 
regardless. 
2010 U.S. Dist. LEXIS 55849, at *4 (S.D. Ohio June 8, 2010) (citing Hayes v. 
Equitable Energy Resources Co., 266 F.3d 560, 573 (6th Cir. 2001)). 
 If a plaintiff demands more than the jurisdictional amount, the 
complaint should not be dismissed for lack of jurisdiction "unless it appears 
to a legal certainty that plaintiff cannot recover the jurisdictional amount." 
Pro-Onsite Techs., LLC v. Jefferson Cnty., No. 3:04CV-452-R, 2005 U.S. Dist. 
LEXIS 17920, at *4 (W.D. Ky. Aug. 19, 2005) (quoting Tullos v. Corley, 337 
F.2d 884, 887-88 (6th Cir. 1964)). Crescent has met its burden to show the 
amount in controversy here exceed $75,000, and the burden therefore shifts 
to Defendants to show to a legal certainty that it cannot recover that amount. 
 Defendants have failed to meet that burden. They argue that because 
Crescent is able to mitigate its damages by selling the 8.15-acre parcel for 
around $40,000, Crescent would only be able to recover between $51,000 and 
$59,000 in this action. [DE 40-1 at 16.] 
 In Kentucky, failure to mitigate is an affirmative defense. See Carney 
v. Scott, 325 S.W.2d 343, 345 (Ky. 1959); see also December Farm Int'l v. 
December Estate, Nos. 2019-CA-0983-MR, 2019-CA-1057-MR, 2021 Ky. App. 
Unpub. LEXIS 294, at *20 (Ct. App. May 7, 2021). "Because potential 
affirmative defenses are not considered in determining the amount in 
controversy," Crescent's mitigation of damages, or failure to mitigate, does 
not alter the amount in controversy. Anderson v. Mid-Continent Aircraft 
Corp., No. 14-2888, 2015 U.S. Dist. LEXIS 188844, at *6–7 (W.D. Tenn. Apr. 
6, 2015) (citing Compass Grp. USA, Inc. v. Eaton Rapids Pub. Sch., 349 F. 
App'x 33, 35 (6th Cir. 2009)). 
 Accordingly, the Court will deny Defendants' summary judgment as to 
the amount in controversy. 
IV. Crescent's Motion for Summary Judgment 
 A. Legal Malpractice 
 In its motion, Crescent claims it is entitled to summary judgment on 
its claim against Defendants for legal malpractice. Under Kentucky law, a 
claim of legal malpractice requires a plaintiff to prove (1) that there was an 
employment relationship with the defendant; (2) the attorney failed to 
exercise the care of a reasonably competent attorney acting in the same or 
similar circumstances; and (3) the defendant's negligence was the proximate 
cause of damage to the plaintiff. Gleason v. Nicholas Nighswander, PLLC, 
480 S.W.3d 926, 929 (Ky. Ct. App. 2016). 
 The Defendants do not dispute that they had an attorney-client 
relationship with Crescent, nor that they owed Crescent a duty. Therefore, to 
be entitled to summary judgment, Crescent must first show that there is no 
genuine issue of material fact as to breach and causation. "[B]reach and 
injury" present "questions of fact." Id. (citing Lewis v. B & R Corp., 56 S.W.3d 
432, 438 (Ky. Ct. App. 2001). And legal causation "presents a mixed question 
of law and fact." Id. (citing Deutsch v. Shein, 597 S.W.2d 141, 145 (Ky. 1980). 
 Defendants challenge the sufficiency of Crescent's evidence as to the 
applicable standard of care and argue that Crescent has offered no evidence 
as to the breach, causation, and damages elements.2 The Court will therefore 

2 Though they assert that Crescent has "offered no competent proof of . . . breach, causation 
and damages," [DE 43 at 10–11], the arguments in Defendants' response only address the 
standard of care and breach, and do not explain how those arguments relate to causation or 
damages. 
examine Crescent's evidence for each element, addressing the parties' 
arguments in turn. 
 1. Breach 
 When an attorney-client relationship exists, Kentucky law imposes a 
high standard of care: 
 The relationship is generally that of principal and agent; however, the 
 attorney is vested with powers superior to those of any ordinary agent 
 because of the attorney's quasi-judicial status as an officer of the court; 
 thus the attorney is responsible for the administration of justice in the 
 public interest, a higher duty than any ordinary agent owes his principal. 
 Since the relationship of attorney-client is one fiduciary in nature, the 
 attorney has the duty to exercise in all his relationships with this client-
 principal the most scrupulous honor, good faith and fidelity to his client's 
 interest. 
Abbott v. Chesley, 413 S.W.3d 589, 600 (Ky. 2013) (quoting Daugherty v. 
Runner, 581 S.W.2d 12, 16 (Ky. Ct. App. 1978)). Thus, "the standard of care 
is generally composed of two elements": care and skill. Daugherty, 581 S.W.2d 
at 16. "The first has to do with [the] care and diligence which the attorney 
must exercise." Id. "The second is concerned with the minimum degree of skill 
and knowledge which the attorney must display." Id. 
 "In determining whether that degree of care and skill exercised by the 
attorney in a given case meets the requirements of the standard of care 
aforementioned, the attorney's act, or failure to act, is judged by the degree 
of its departure from the quality of professional conduct customarily provided 
by members of the legal profession." Id. (cleaned up). Accordingly, an 
attorney's duty to his client is breached when "the attorney's act, or failure to 
act . . . depart[s] from the quality of professional conduct customarily 
provided by members of the legal profession" acting in the same or similar 
circumstances. Id. 
 Crescent alleges that Defendants were negligent in conducting the title 
examination and in preparing the mortgage and title report by including an 
erroneous property description in them. Defendants argue that Crescent has 
failed to create a genuine issue of material fact as to whether Defendants 
breached their duty because Crescent has not provided sufficient expert 
testimony. 
 The standard of care for an attorney in a legal malpractice claim is 
measured by the conduct customary in the profession under the 
circumstances, and expert testimony is typically, but not always, required to 
establish it. Boland-Maloney Lumber Co. v. Burnett, 302 S.W.3d 680, 686 (Ky. 
Ct. App. 2009). Expert testimony is not required in cases where the attorney's 
negligence "is so apparent that a layperson with general knowledge would 
have no difficulty recognizing it." Stephens v. Denison, 150 S.W.3d 80, 82 (Ky. 
Ct. App. 2004). Whether an expert witness is required to prove a legal 
malpractice claim is within the discretion of the trial court. Gleason, 480 
S.W.3d at 929 (citing Blankenship v. Collier, 302 S.W.3d 665, 673 (Ky. 2010)). 
 In a recent legal malpractice case in this district, Judge David L. 
Bunning aptly explained how Kentucky courts have determined whether 
expert testimony might be required: 
 Kentucky courts have held that expert testimony is not necessary in cases 
 where a statute of limitations was missed, a plea offer was not conveyed, 
 or where an attorney had a conflict of interest. By contrast, Kentucky 
 courts have required expert testimony in cases concerning trial 
 preparation, trial strategy, qualified domestic relations orders, and an 
 attorney's professional assessment of the law. Thus, the necessity of expert 
 testimony is dictated by the nature of the alleged malpractice. If the alleged 
 negligence involves the exercise of legal judgment or the application of 
 complex legal principles, expert testimony is required. 
EQT Prod. Co. v. Vorys, Sater, Seymour & Pease, LLP, No. 15-146-DLB-EBA, 
2018 WL 1996797, 2018 U.S. Dist. LEXIS 72687, at *46 (E.D. Ky. Apr. 27, 
2018) (cleaned up). 
 Here, the alleged negligence involves the accuracy of information that 
Defendants provided to their client. The material facts are not in dispute: 
Defendants were retained to conduct a title examination, and to prepare the 
mortgage, note, and a title report. Defendant Freeman prepared a title report 
that contained the wrong property description. [DE 1 at ¶ 12–13; DE 8 at 1.] 
Whitaker Bank asked for a report on property located at "126 Casey Road[,] 
Corbin, KY 40701." [DE 1-4 at 2.] Defendants provided a title report that 
included the legal description of another piece of unimproved property. That 
incorrect description was then used in the mortgage,3 and when the 
Whitakers defaulted on that mortgage, Crescent was forced to repurchase the 
loan. 
 Expert testimony is not required to understand the negligence alleged 
here. "A layperson with general knowledge would have no difficulty 
recognizing" that "a reasonably prudent lawyer and law firm" would not 
provide the description of the wrong property in a title opinion. Greene v. 
Frost Brown Todd, LLC, No. 3:14-CV-00619-TBR, 2016 U.S. Dist. LEXIS 
160898, at *17 (W.D. Ky. Nov. 21, 2016). 

3 In their briefs, Defendants argue that they did not prepare the mortgage, and that it was 
either Whitaker Bank or Crescent that inserted the incorrect property description into the 
mortgage. However, whether it was Defendants or some other party that inserted the 
erroneous property description is immaterial because it was the description from Defendants' 
title report. The property description in the mortgage is, indisputably, erroneous. Regardless 
of who copied the description from Defendants' title report and put it in the mortgage, the 
description was only erroneous because the Defendants provided a description of the wrong 
property in the title report. 
 Aside from stating that expert testimony is generally required to prove 
legal malpractice, Defendants do not address the issue of whether this case 
falls under the exception to that general rule. They merely cite EQT Prod. Co. 
in support of the proposition that "federal courts sitting in Kentucky, and the 
Sixth Circuit, have recently, and clearly, recognized the general rule 
requiring expert testimony to prove legal malpractice ‘except where the 
negligence is so apparent that a lay person with general knowledge would 
have no difficulty recognizing it.'" [DE 43 at 11–12 (citing EQT Prod. Co., 2018 
U.S. Dist. LEXIS 72687.] Though EQT Prod. Co. has some similarity to the 
instant case, in that it also involved a legal malpractice claim based on 
allegedly negligent title examinations, it is materially distinguishable. 
 In EQT Prod. Co., the alleged negligence involved "the extent and 
completeness of a title examination." 2018 U.S. Dist. LEXIS 72687, at *48. 
However, the title examination at issue in that case was much more complex 
than the residential title search requested by Crescent. The attorneys in EQT 
were asked to render title opinions of the "oil and gas estate" on multiple 
tracts of land, and the plaintiff alleged they were negligent in failing to 
examine a separate "working interest estate" as part of the title 
examinations. Id. at *47–50. The plaintiff argued that expert testimony was 
not required to support its legal malpractice claim because an ordinary 
layperson could recognize whether a title examination was negligently 
conducted, but Judge Bunning held otherwise: 
 The question, therefore, is: Would a reasonably competent attorney, who is 
 asked to provide an oil and gas title opinion, breach the standard of care by 
 failing to examine the lessee title for the working interest estate? Were the 
 Court to ask any layperson walking down the street this question, it would 
 expect to receive puzzled looks in response. In fact, asking that question to 
 an attorney—not well-versed in mineral rights and title examinations—
 would probably elicit an equally confused reaction. Put simply, such 
 negligence is not "so apparent that a layperson with general knowledge 
 would have no difficulty recognizing it." Stephens, 150 S.W.3d at 82. Given 
 the various terms of art, the intricacies of mineral interests and estates, 
 and the complexity of title examinations, expert testimony is required to 
 prove the negligence [the plaintiff alleges]. 
Id. at *50–51. 
 Here, the operative question is much simpler: Would a reasonably 
competent attorney, who is asked to provide a title opinion for property at a 
specific address, breach the standard of care by providing the legal 
description of a different property in their title opinion? In contrast to EQT 
Prod. Co., answering that question does not require exercise of legal judgment 
or application of complex legal principles. If the alleged negligence were more 
complicated, or if it involved the "extent and the completeness of a title 
examination," the issue may be "beyond the ordinary comprehension of a lay 
juror." Id. at *47. Or, if the alleged negligence were layered with terms of art 
and legal concepts unfamiliar to someone with no legal training, as was the 
case in EQT Prod. Co., expert testimony might be necessary. But it is not. 
 Here, it is not necessary to understand extent or completeness of the 
title examination performed by Defendants—it is sufficient to understand 
that Defendants were retained to perform legal services that included 
obtaining and relaying to the client information that is available in a public 
record, and that Defendants gave their client the incorrect information. 
Recognizing the negligence in this case does not require an understanding of 
anything more than what happened, which a qualified fact witness could 
readily explain. Therefore, because the alleged negligence in this case is "so 
apparent that a layperson with general knowledge would have no difficulty 
recognizing it," Stephens, 150 S.W.3d at 82, expert testimony is not required 
to prove it. 
 Although expert testimony is not necessary to support Crescent's legal 
malpractice claim, as the moving party, it still has "burden of showing an 
absence of evidence to support [Defendants'] case." Garnet v. GMC, 19 F. 
App'x 363, 365 (6th Cir. 2001) (citing Covington v. Knox County School Sys., 
205 F.3d 912, 914 (6th Cir. 2000)). Crescent argues that regardless of who put 
the erroneous property description in the mortgage instrument, Defendants 
bear ultimate responsibility for the accuracy of the mortgage document, and 
because the property description in the mortgage document was erroneous, 
Defendants breached their duty by failing to ascertain and provide an 
accurate description of the subject property. [DE 41 at 6–7.] 
 Here, Crescent has met its burden to show there is no genuine dispute 
of material fact as to whether Defendants breached their duty. There is no 
genuine dispute as to whether Defendants did, in fact, provide a description 
of the wrong property in their title report. Defendants' attempt to create a 
genuine dispute of that fact is unavailing. They point to the opinion of their 
expert, Darrell Saunders, who opined that Defendants "met or exceeded the 
standard of care of an ordinary and prudent lawyer" under the circumstances. 
[DE 43 at 14–15.] But even given a generous reading, Saunders's opinion fails 
to establish a standard of care for these particular circumstances. In support 
of his conclusion, Saunders states that "[i]t is not a part of the standard of 
care of an attorney to decide what property the lender chooses to accept as 
collateral." [DE 43 at 16.] He further opines that "[i]t is standard practice" 
that once the lender has decided the property to serve as collateral to support 
the loan, the lender "orders a title search done on property with a specific 
deed book and page number to search." [DE 43 at 15.] Then, "once the bank 
provides the description to be searched, the attorney searches the title and 
provides a title opinion confirming the source of title (deed book, page 
number) that was searched." [DE 43-9 at 3.] 
 Saunders's description of standard practice might be sufficient 
evidence to establish the standard of care under the circumstances he 
describes, but the circumstances of this case are materially different. He 
states that it is "customary and standard that the lender provide a property 
description and deed book and page number to counsel" when asking for a 
title opinion, [DE 43-9 at 3], but the parties agree that Whitaker Bank did 
not include that information in its title order and only identified the property 
by its address at 126 Casey Road, Corbin, Kentucky. Saunders's opinion only 
states what is standard practice when the lender provides a deed book and 
page number. So, even if it is "customary and standard" for a lender to do so, 
the parties agree the lender here did something different. Which begs the 
question: what should the Defendants have done when they did not receive a 
deed book and page number? Saunders's opinion does not answer that 
question or provide a basis for a jury to do so—it offers no evidence as to what 
the standard of care was in this case or whether Defendants breached that 
standard of care. 
 Even going a step further and assuming Saunders's opinion somehow 
could be evidence of the applicable standard of care in this case, the 
Defendants have still failed to articulate how they did not breach that 
standard. It is undisputed that on April 5, 2013, Whitaker Bank requested a 
title search on property owned by Mac and Cindy Whitaker located at 126 
Casey Road, Corbin, Kentucky. According to the standard practice described 
by Saunders, "once the bank provides the description to be searched the 
attorney searches the title, and provides a title opinion confirming the source 
of title (deed book, page number) that was searched." [DE 43-9 at 3 (cleaned 
up) (emphasis added).] The title order received by Defendants unambiguously 
provides the description to be searched as 126 Casey Road, Corbin, 
Kentucky—no other property is referenced. There is no evidence that 
Defendants searched or confirmed the source of the title for 126 Casey Road, 
which is the only property described in the title order. To the contrary, the 
undisputed evidence in the record shows that Defendants never performed a 
title search for property at 126 Casey Road, and that they confirmed the deed 
book and page number for another property—the unimproved 8.15-acre 
parcel. Thus, even given the most generous reading in the light most 
favorable to Defendants, not only is Saunders's opinion not evidence that 
Defendants met the applicable standard of care, but it is also actually 
evidence that they breached it. 
 The gravamen of Defendants' argument seems to be that because the 
lender did not spoon feed the standard information in their title order, it was 
reasonable for Defendants to assume the property to be searched was the 
same property that had been searched five months earlier, because the 
Whitakers' name and address appeared somewhere on both documents. 
Again, even accepting Defendants' evidence as true and granting them every 
favorable inference, their argument fails. Saunders's opinion does not provide 
a basis to conclude Defendant's assumption was reasonable, because again, it 
only discusses what should be done when the lender provides a deed book 
reference in the title order. It does not state what an attorney should do or 
typically does if no deed book reference is provided. If anything, Saunders's 
deposition testimony suggests that Defendants should not have made any 
assumption and should have asked for clarification as to what property was 
to be searched. Saunders "testified expressly that when a lender asks him to 
do a title search that ‘[he] wants a copy of the deed.'" [DE 40-1 at 14.] From 
that it is reasonable to infer that an attorney should obtain a copy of the deed 
from the lender before running the title search. But it is not reasonable to 
infer that in the absence of a deed book reference, an ordinary and prudent 
lawyer would assume the title to be searched is the same as a previously 
searched title simply because the same address appeared somewhere in both 
title orders. 
 In sum, Crescent has met its burden and identified evidence that 
"demonstrate[s] the absence of a genuine issue of material fact." Celotex Corp. 
v. Catrett, 477 U.S. 317, 323 (1986). The evidence in the record shows that 
Whitaker Bank requested a title opinion from Defendants for property at 126 
Casey Road, Corbin, Kentucky. The Defendants did not run a title search for 
126 Casey Road and provided the bank with a title opinion that included the 
legal description of a different property. That erroneous property description 
was then incorporated into the mortgage instrument and title insurance 
policy. Defendants have failed to identify any evidence that would create a 
genuine dispute of those material facts. The only evidence Defendants' set 
forth is the expert opinion of Darrell Saunders, but that opinion offers no 
basis for the conclusion that Defendants did not breach their duty by failing 
to run a title search and providing an erroneous property description in a 
title. Defendants have therefore failed to put forth evidence to create a 
genuine issue of material fact as to whether they breached their duty to 
Crescent. Accordingly, the Court will grant partial summary judgment in 
favor of Crescent as to the issue of breach on their claim for legal malpractice. 
 2. Causation 
 To be granted summary judgment on its legal malpractice claim, 
Crescent must demonstrate that there is no genuine issue of material fact 
regarding causation. Crescent must show that Defendants' alleged negligence 
was the proximate cause of its damages. Marrs v. Kelly, 95 S.W.3d 856, 860 
(Ky. 2003). To prove proximate cause, Crescent must show that "but for the 
attorney's negligence," Crescent would have "fared better" and "would have 
been more likely successful." Id. "[W]hat would have happened without 
[Defendants'] alleged negligence" is "the very nature of ‘but for' causation," 
and in cases involving drafting negligence, proximate cause can be proved 
with evidence that "absent the drafting error, the plaintiff would not have 
been damaged." EQT Prod. Co., 2018 U.S. Dist. LEXIS 72687, at *59–60. 
Thus, to prove proximate cause, Crescent must show that if Defendants had 
not included an erroneous property description in their title report, Crescent 
would not have been required to repurchase the defaulted loan. 
 Crescent's argument is straightforward and based on facts stated in 
the declaration of its Vice President/Credit Risk Manager Rusty Creel [DE 
41-3]. After the Whitakers defaulted on the loan, MMS began the foreclosure 
process, but discovered that the mortgage encumbered the 8.15-acre 
unimproved and substantially less valuable parcel, rather than the 126 Casey 
Road property. MMS then filed a title insurance claim that was denied on the 
basis that the insurance only covered the property described in the property 
description of the title insurance policy, which included the erroneous 
property description from Defendants' title report. After the title insurance 
claim was denied, Crescent was required to repurchase the mortgage due to 
its contractual obligations with MMS. Thus, Crescent argues that but for 
Defendants providing the erroneous property description in their title 
opinion: (1) MMS would have been able to foreclose on the loan and extinguish 
the mortgage, and Crescent would never have had to repurchase the loan, or 
that (2) even if foreclosure was unavailable or untenable, MMS's title 
insurance claim would not have been denied and Crescent's contractual 
obligations requiring it to repurchase the mortgage would not have been 
triggered. 
 Defendants, on the other hand, have not set forth any argument 
regarding proximate cause. In their response to Crescent's motion for 
summary judgment, Defendants assert that Crescent has "offered no 
competent proof of . . . breach, causation, and damages" and that Crescent's 
alleged "deficiencies are discussed below." [DE 43 at 10–11.] However, an 
examination of Defendants' brief reveals no such discussion of proximate 
cause. 
 To the extent that Defendants intend their argument regarding expert 
testimony and breach to also apply to causation, that argument fails for the 
same reasons as discussed above. Here, understanding the causal connection 
between the alleged malpractice and the alleged injury does not require 
"exercise of legal judgment" or "application of complex legal principles." EQT 
Prod. Co., 2018 U.S. Dist. LEXIS 72687, at *46. A layperson with general 
knowledge would have no difficulty recognizing that but for Defendants 
including an erroneous property description in the title opinion, it is more 
likely than not that Crescent would not have had to repurchase the loan. 
 Defendants' failure to set forth an argument regarding causation does 
not lessen Crescent's burden to show an absence of genuine dispute of 
material fact as to the element. Bryant v. Bigelow, 311 F. Supp. 2d 666, 670 
(S.D. Ohio 2004). Here, Crescent has met its burden. Defendants have not set 
forth any facts to dispute the chain of events relating to the Whitakers's 
default on the loan, MMS's subsequent actions, MMS's title insurance claim, 
or Crescent's contractual obligations to MMS. The uncontroverted evidence 
in the record is more than sufficient to show that but for Defendants alleged 
negligence in providing an erroneous property description, Crescent would 
have fared better. Accordingly, the Court will grant Crescent partial 
summary judgment as to the causation element of its legal malpractice claim. 
 4. Damages 
 Though Crescent has shown that Defendants proximately caused its 
damages, a genuine dispute exists as to the amount of damages that Crescent 
incurred. Crescent claims its damages amount to $91,931.30, which is the 
amount it paid to repurchase the loan. However, Defendants argue that 
Crescent's actual damages are some lesser amount, because Crescent failed 
to mitigate its damages by foreclosing and selling the encumbered 8.15-acre 
parcel. Crescent does not dispute the fact that the loan is secured by the 8.15-
acre parcel, and it does not claim to have made any attempt to sell it. 
 Crescent has failed to meet its burden to show there is no genuine 
dispute regarding the amount of damages it sustained as a result of 
Defendants' negligence. Numerous questions of fact regarding damages 
remain unanswered: does the repurchased mortgage encumber the 8.15-acre 
parcel? Does Crescent have the ability to foreclose and sell the property? 
What is the reasonable value of the property? Accordingly, the Court will 
deny Crescent partial summary judgment as to the issue of damages. 
 CONCLUSION 
 For the reasons stated in this opinion, and otherwise being sufficiently 
advised, the Court hereby ORDERS as follows: 
 (1) Plaintiff Crescent Mortgage Company's motion for summary 
 judgment [DE 41] is GRANTED IN PART and DENIED 
 IN PART. The Court GRANTS the motion as to the duty, 
 breach, and causation elements of its claim for professional 
 negligence against Defendants. However, the Court 
 DENIES the motion as to the amount of damages Plaintiff 
 has sustained as a result of Defendants' negligence; 
 (2) Defendants Brien Freeman and Freeman & Childers LLP's 
 motion for summary judgment [DE 40] is DENIED. 
 This 31s* day of March, 2022. 

 AS. denen fi, (fabetiuel □ 
 es] i. KAREN K. CALDWELL 
 □□□ «(UNITED STATES DISTRICT JUDGE 
 ns EASTERN DISTRICT OF KENTUCKY 

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