Full Opinion

RENDERED: OCTOBER 9, 2026; 10:00 A.M. TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2024-CA-1471-MR LOUIS BRIGGS APPELLANT APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE ANN BAILEY SMITH, JUDGE ACTION NO. 21-CI-004900 SHAUN WIMBERLY; SOMERSET SERVICES, INC.; 1 AND WIMBERLY & ASSOCIATES, PLLC APPELLEES AND NO. 2025-CA-1366-MR LOUIS BRIGGS APPELLANT 1 Briggs sued Appellee, Somerset Services, Inc., a/k/a AttPro, in part to establish insurance coverage for Wimberly. Briggs has abandoned his appeal to the extent it seeks to reverse the judgment against him on this aspect of these cases. Not being a party to any insurance contract involving Wimberly, Briggs had no standing to sue to establish coverage until and unless he had obtained a judgment against Wimberly. See Willis v. Hamilton Mut. Ins. Co., 614 S.W.2d 251 (Ky. App. 1981). And AttPro was not the actual insurance company which had issued a policy for Wimberly. APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE MELISSA L. BELLOWS, JUDGE ACTION NO. 25-CI-000918 SHAUN WIMBERLY AND WIMBERLY & ASSOCIATES, PLLC APPELLEES OPINION AFFIRMING ** ** ** ** ** BEFORE: ACREE, CALDWELL, AND EASTON, JUDGES. EASTON, JUDGE: Appellant (Briggs) asks us to reverse the dismissal with prejudice of his malpractice claims of litigation negligence against his attorney, Appellee Shaun Wimberly (Wimberly), in these consolidated cases. We affirm. FACTUAL AND PROCEDURAL BACKGROUND Briggs was arrested in 2014 after an incident with the police. He was charged with multiple offenses, including third-degree assault, for which probable cause was found and an indictment returned. But eventually, the charges were dismissed. -2- Wimberly then filed a suit2 for Briggs in a United States district court. Briggs asserted federal civil rights claims as well as claims based on state law. The federal district court dismissed most of the claims and said it would decline to exercise jurisdiction over the remaining state law claims. Briggs blames Wimberly for this decision because of things Wimberly supposedly failed to do and fired Wimberly. Briggs then filed an appeal of the district court’s decision to the United States Sixth Circuit Court of Appeals. While the federal appeal was pending, Briggs filed Civil Action No. 21-CI-04900 in the Jefferson Circuit Court. The Sixth Circuit affirmed the federal district court by an Opinion3 entered on April 1, 2022. As we will explain briefly in the following analysis, that decision became final on April 25, 2022. Nothing much had happened in the state court case in the meantime, and the finality of the federal court’s decision did not seem to spur any activity.4 The circuit court issued a notice to dismiss this case for lack of prosecution in 2023. Eventually, some discovery ensued. In February 2024, Briggs filed an 2 Case No. 3:17-CV-00537-DJH-CHL, United States District Court for the Western District of Kentucky. 3 Briggs v. Hogan, Appeal No. 21-5581, 2022 WL 985825 (6th Cir. Apr. 1, 2022) (this Opinion provides a summary of the case and the claims asserted which need not be repeated here). 4 We find no attempt to voluntarily dismiss the premature case after the federal appeal was filed which would have allowed for a second suit to be filed within one year of when the appeal became final. -3- amended complaint, which restated his claims against Wimberly and added the insurance claims we have mentioned. Wimberly moved to dismiss the case against him. The circuit court granted the motion. The basis for dismissal was that the suit when filed presented a claim that was not ripe. Wimberly further argued that any amendment would not relate back to the time of filing the original complaint (a point that Briggs does not contest) because the circuit court had no jurisdiction when the case was filed. Regardless of the lack of jurisdiction for the case when filed, the circuit court could not escape the fact that the applicable one-year limitations period had expired as measured from April 2022, so the circuit court dismissed the case with prejudice. That dismissal occurred in November 2024. Appeal No. 2024-CA-1431-MR is of that decision. To further complicate matters, Briggs filed a repeat civil action in February 2025 assigned as Case No. 2025-CI-000918 in the Jefferson Circuit Court. The second case was assigned to a different division. On Wimberly’s motion again, the repeat case was also dismissed with prejudice. Appeal No. 2025-CA-1366-MR is of that decision. -4- STANDARD OF REVIEW Ultimately, this case turns on the application of a statute of limitations. It has been complicated by questions of jurisdiction5 based on the ripeness of Briggs’ claims when made. In any event, the question of how the statute of limitations applies is a matter of law which we review de novo. See Emberton v. GMRI, Inc., 299 S.W.3d 565, 573 (Ky. 2009). Ripeness is also a legal question reviewed de novo. See Bingham, Greenebaum, Doll, LLP v. Lawrence, 567 S.W.3d 127, 129 (Ky. 2018). ANALYSIS APPEAL NO. 2024-CA-1431-MR A claim for negligence by an attorney, often referred to as a malpractice claim, must be brought within one year. KRS6 413.245. Where, as in the present case, the cause of action is for “litigation” negligence, meaning the attorney’s negligence in the preparation and presentation of a litigated claim resulting in the failure of an otherwise valid claim, whether the attorney’s negligence has caused injury necessarily must await the final outcome of the underlying case. 5 Wimberly has argued that Briggs did not preserve his argument about any error in a dismissal with prejudice. Briggs did make a claim about jurisdiction which, in these peculiar circumstances, impacts the ultimate question we must resolve as to whether the circuit court could dismiss with prejudice. 6 Kentucky Revised Statutes. -5- Michels v. Sklavos, 869 S.W.2d 728, 730 (Ky. 1994). If the litigation in question has been appealed, then the claim does not ripen until the appeal is final. Hibbard v. Taylor, 837 S.W.2d 500 (Ky. 1992). The Kentucky Constitution, Section 112(5), requires a “justiciable” claim before the circuit court may act. “Our courts do not function to give advisory opinions, even on important public issues, unless there is an actual case in controversy.” Philpot v. Patton, 837 S.W.2d 491, 493 (Ky. 1992). Because of this constitutional requirement, the circuit court has no jurisdiction of a claim that does not yet exist, or in other words is not ripe. In this case, Briggs’ claim against Wimberly did not exist until April 25, 2022, when the federal appeal became final. The mandate process in federal court made the Opinion entered on April 1, 2022, final no later than April 25, 2022. See Doe v. Golden & Walters, PLLC, 173 S.W.3d 260, 272 (Ky. App. 2005). We note here the line between subject-matter jurisdiction and particular-case jurisdiction. The circuit court had jurisdiction of this type of case and thus had subject-matter jurisdiction. The problem was one of ripeness. The circuit court did not yet have jurisdiction over Briggs’ particular case because his claim did not yet exist. See Commonwealth v. B.H., 548 S.W.3d 238, 243-44 (Ky. 2018) (clarifying the line between these two types of jurisdiction, which are sometimes conflated as in Doe). We further note that the distinction between -6- subject-matter jurisdiction and particular-case jurisdiction does not alter the result in this case. In either case, the circuit court generally cannot resolve the merits of the case and dismisses without prejudice. The circuit court relied upon Cherry v. Augustus, 245 S.W.3d 766 (Ky. App. 2006). Cherry is distinguishable because it involved the intricacies of review of administrative decisions, but it does stand for the general proposition that a pendency of a case over which the court does not have jurisdiction does not toll a limitations period. Cherry, 245 S.W.3d at 771-74. We return to Doe because it squarely addresses how to deal with an unripe case. Quoting from Lilly v. O’Brien, 6 S.W.2d 715 (Ky. 1928), the Court in Doe recognized that the fact the claim did not yet exist when the suit was filed was a “fatal defect,” which “cannot be aided by amendment, or waived by delay in calling attention to it.” Doe, 173 S.W.3d at 275. Because the circuit court had no jurisdiction over the case from the outset, the case should be dismissed without prejudice. Id. at 276. In other words, if the claim is not ripe, the court generally should not address the merits of the claim by a dismissal with prejudice. In this first appeal, the circuit court dismissed the case with prejudice because in the meantime the claim clearly became time barred while the case was pending. We will return to the correctness of this decision at the end of our analysis of both appeals. If we assume for the sake of further analysis that the first -7- dismissal should have been without prejudice, this provides us with a segue to the second appeal. APPEAL NO. 2025-CA-1366-MR Briggs insists that the first case should have been dismissed without prejudice. Then his second case should be saved from the expiration of the limitations period by operation of KRS 413.270(1). This statute provides a period of ninety days to refile a case in limited circumstances. As applied to the second suit Briggs filed, the previously dismissed case must have been “commenced in due time,” and the dismissal must be based on a lack of “jurisdiction.”7 Id. “[T]he General Assembly used the term ‘jurisdiction’ broadly to include the concept of place as well as the concept of power.” Dollar General Stores, Ltd. v. Smith, 237 S.W.3d 162, 165 (Ky. 2007). For example, a malpractice case filed in the wrong venue could be dismissed without prejudice and then refiled in the proper county. Fields v. Womack, 294 S.W.3d 470, 473 (Ky. App. 2009) (case involving medical as opposed to legal negligence or malpractice). The problem for Briggs’ second case is that the first case was not filed “in due time.” It was filed before the claim existed. According to Briggs’ own 7 Wimberly also insists that the prior suit must have been filed in the wrong court as is evidenced by language in the statute about refiling in the “proper court.” We can foresee that, in a case of ripeness, the “proper court” could be the same court where the matter was initially filed. But we need not address this issue in any detail because of our conclusions about the other aspects of the statute. -8- argument, the first suit was not supported by jurisdiction because of the lack of ripeness and so should have been dismissed without prejudice. But even if that had been done, KRS 413.270(1) does not excuse the untimeliness of the second suit. It was properly dismissed with prejudice on statute of limitations grounds. And so, these two appeals present a question of proper procedure in these circumstances. Was the circuit court without authority to dismiss the first case with prejudice? Our courts have not foreclosed the dismissal of such a case with prejudice: “a dismissal for lack of subject-matter jurisdiction should ordinarily be without prejudice because such a dismissal does not operate as an adjudication on the merits of the dispute.” City of Pikeville v. Kentucky Concealed Carry Coalition, Inc., 671 S.W.3d 258, 264 (Ky. 2023) (emphasis added) (a case involving standing of a party to bring the claim and arguably again conflating true subject-matter jurisdiction with particular case jurisdiction). The Court in City of Pikeville cited Thompson v. Love’s Travel Stops & Country Stores, Inc., 748 F. App’x 6 (6th Cir. 2018). In Thompson, the Court noted that “extraordinary circumstances” may allow a dismissal with prejudice discussing cases where the dismissal was based on failure to state a claim. Id. at 11. Kentucky courts have held that a case may be dismissed with prejudice for failure to state a claim when the time bar is apparent on the face of the record. See Carr v. Texas Eastern Transmission Corp., 344 S.W.2d 619, 621 (Ky. 1961). -9- In support of its position, Wimberly cites Vandor v. Militello, 301 F.3d 37, 39 (2d Cir. 2002). In that case, as with the present situation, the case was not ripe when filed. By the time a dismissal order was entered, it was clear that the ripeness period had expired in the meantime. The Court upheld a dismissal with prejudice. We are not required to accept a federal court’s interpretation of Kentucky law much less the law of another state explained by a federal circuit of which Kentucky is not a member, but we confess the reasoning of the Second Circuit is sound. The reality is that a Kentucky circuit court must have jurisdiction of any case at least to the extent required to determine if the court has subject-matter and particular-case jurisdiction of the case. See Childers v. Albright, 636 S.W.3d 523, 525 (Ky. 2021). In the context of ripeness, if by the time dismissal is ordered the intervening time makes the claim time barred, it makes common sense to dismiss it with prejudice. “When all else is said and done, common sense must not be a stranger in the house of the law.” Cantrell v. Kentucky Unemployment Ins. Commission, 450 S.W.2d 235, 237 (Ky. 1970). If we hold to the general proposition that the first case should have been dismissed without prejudice, the ultimate result is the same – the second case was correctly dismissed with prejudice due to the bar of the statute of limitations because the savings statute did not apply. We will not insist upon a useless display -10- of procedure in these cases by reversing the first case to dismiss it without prejudice just so the eventual dismissal with prejudice by virtue of the second case will stand on its own.8 If this case teaches anything, it is the danger of relying on so-called “protective” lawsuits which are filed too early. It is incumbent on attorneys to know when cases become ripe and file suits accordingly. When we consider the public policy which favors judicial economy, it is not consistent with that policy to encourage filing of suits for our clerks and courts to maintain before the proper time for such suits to be adjudicated. Likewise, it would not be good use of judicial economy to alter the ultimate result of these cases other than by affirming the result. CONCLUSION The Jefferson Circuit Court properly dismissed these cases with prejudice. They were both time barred when the dismissal orders were entered. The Jefferson Circuit Court is AFFIRMED. ALL CONCUR. 8 We also are reminded that it is our obligation to affirm for any reason apparent from the record. Emberton, 299 S.W.3d at 576. When the records of these cases, including the federal case, is considered, Briggs would not have survived judgment on the pleadings or summary judgment due to the lack of the merit of his claims as pled. -11- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES SHAWN WIMBERLY AND WIMBERLY Zachary L. Taylor AND ASSOCIATES, PLLC: Louisville, Kentucky James P. Grohmann Louisville, Kentucky BRIEF FOR APPELLEE SOMERSET SERVICES, INC.: Mindy G. Barfield Kyle R. Bunnell Lexington, Kentucky -12-