Kentucky Court Report - SCOKY & COAKY

Argument Calendar for Aug. 2008 for Kentucky Court of Appeals

August  2008 Court of Appeals Argument Calendar posted. [Go to calendar for more info on counsel, etc.]

LOCATION: COURT OF APPEALS COURTROOM, 360 DEMOCRAT DRIVE,
FRANKFORT, KENTUCKY

DATE: Tuesday, August 05, 2008

9:00 AM NICKELL THOMPSON ROSENBLUM
C. K. VS CABINET FOR HEALTH AND FAMILY SERVICES ET AL. 2007CA001601
Whether trial ct erred in: 1) assuming jurisdiction of a dependency action; 2) assuming jurisdiction of termination of parental rights action; 3) finding child was neglected in dependency action and using such finding in termination action against mother; 4) finding child was neglected in termination action and using such finding against appellant father; 5) finding appellant met the grounds set forth in KRS 625.090(2); and 6) finding Cabinet introduced clear and convincing evidence in support of
findings.

1:15 PM NICKELL LAMBERT, (JAMES) KNOPF
EDWARD MIALBACK VS UNIVERSITY MEDICAL CENTER INC. 2007CA001096
Show cause hearing.

2:00 PM CAPERTON ACREE ROSENBLUM
ROBERT BURNSIDE VS AMERICAN TAX FUNDING, LLC 2007CA001687
Writ of mandamus to compel Secretary of finance and Administration cabinet to assign delinquent tax claims to 3rd party purchasers.

2:45 PM CAPERTON ACREE ROSENBLUM
THE ST. LUKE HOSPITALS, INC. VS SAINT ELIZABETH MEDICAL CENTER,
INC. ET AL.
2007CA001663
ALJ entered an order on a certificate of need to establish an open heart surgery program and the circuit court reversed.

3:30 PM KELLER THOMPSON WINE
KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY VS JASON
BLEVINS ET AL.
2008CA000525
Insurance coverage question. Homeowner insurance policy carrier appeals from a judgment requiring it to provide coverage for and defend its insureds. Appeal and cross-appeal. Underlying issues between parties are unresolved pending this appeal.

LOCATION: COURT OF APPEALS COURTROOM, 360 DEMOCRAT DRIVE,
FRANKFORT, KENTUCKY

DATE: Wednesday, August 13, 2008

9:30 AM THOMPSON VANMETER HENRY
JOHN ADAMS ET AL. VS LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT ET AL.
2007CA000066
Appellants appeal unanimous verdict in favor of appellee in racial discrimination action. Appellants argue key witnesses were not allowed to testify, and extensive evidence was excluded, including report by aide to the mayor which admitted discrimination, and city’s admissions in another litigation that manager was engaged in racism. Appellants complain defense argued plaintiffs should not be severed and trial ct agreed. Appellees argued for severance of plaintiffs.Trl Ct. reversed ruling.

10:45 AM THOMPSON VANMETER HENRY
WILLIAM LEGRAND ET AL. VS ROBERT EWBANK ET AL. 2007CA001770 Appellants complain of a ruling by the Board of Adjustments that a sand company had non-conforming use rights to conduct sand and gravel mining operations on all land it owned that was under permit at the time of the comprehensive plan. The sand company argues its right to continue existing mining activities under KRS 100.253(2) and the "diminishing asset" doctrine.

1:15 PM HENRY MOORE THOMPSON
MARY LASSITER VS AMERICAN EXPRESS TRAVEL RELATED SERVICES
COMPANY, INC. ET AL.
2007CA000908
Constitutional Law and Escheats; State Budget Director appeals decision of Franklin Circuit Court declaring unconstitutional Section 39 of HB 380, which temporarily reduced from 15 to 7 years the time outstanding traveler's checks are presumed abandoned.

LOCATION: FLEMING COUNTY COURTHOUSE, 100 COURT SQUARE,
FLEMINGSBURG, KENTUCKY

DATE: Friday, August 15, 2008

10:00 AM KELLER TAYLOR GUIDUGLI
MYERS ARNETT VS CITY OF STANTON ET AL. 2007CA000266
This is an appeal from the trial court's decision which affirmed the removal of the Appellant, Mayor of the City of Stanton, from his position.

10:45 AM KELLER TAYLOR GUIDUGLI
FALLS CREEK, INCORPORATED VS LOUISA BOARD OF WATER AND SEWER COMMISSION ET AL. 2007CA001674
This is an appeal of a decision by the trial court which granted summary judgment to the Appellees. The Appellants maintain that the Appellees unjustly and arbitrarily failed to comply with contractual obligations which were part of an agreement it made with the Appellants. The underlying agreement involves the development and operation of a sewer pumping station.

11:30 AM GUIDUGLI KELLER TAYLOR
JULIE LOWERY VS CRYSTAL WHEELER ET AL. 2007CA001287
Grandmother had been declared defacto custodian had child removed. Issue standard used by court.

2:00 PM TAYLOR KELLER GUIDUGLI
RILEY PARTIN VS BYRD PARTIN ET AL. 2007CA000595
Whether circ2:00 PM TAYLOR KELLER GUIDUGLI
RILEY PARTIN VS BYRD PARTIN ET AL. 2007CA000595
Whether circuit court complied with Court of Appeals opinion reversing and remanding previous order.

LOCATION: CHRISTIAN COUNTY JUSTICE CENTER, 100 JUSTICE WAY, DISTRICT
COURTROOM 3, HOPKINSVILLE, KENTUCKY

DATE: Monday, August 18, 2008

10:00 AM MOORE NICKELL STUMBO
JEFFREY SCHERRETZ VS COMMONWEALTH OF KENTUCKY 2007CA001605
Criminal - issues: (1)whether evidence supported jury instructions and conviction of manslaughter and burglary;(2)whether Commonwealth was required to identify unknown accomplice or conspirator by name;(3)whether appellant's right to confront witness was comprised;(4)whether comments made to jury by Commonwealth during closing regarding experimenting during deliberations prejudiced Appellant;(5)whether Commonwealth in closing arguments shifted burden of proof.et al.

10:45 AM MOORE NICKELL STUMBO
DAVID BEST VS WEST AMERICAN INSURANCE COMPANY 2007CA002289
Appeal from entry of summary judgment to defendant involving insurance claim on a car insurance policy regarding whether a repossession of a vehicle for an alleged breach of a sales contract is covered as a theft.

11:30 AM MOORE NICKELL STUMBO
R. O. GILES ENTERPRISES, INC. VS ROGER L. MILLS (DECEASED)/LINDA S.
MILLS (WIDOW) ET AL.
2008CA000709
Workers compensation case regarding whether a landowner can be subjected to workers compensation liability under KRS 342.610(2)(a)wherein the landowner enters into an agreement with a second party for the removal and purchase of timber from its property when an employee of the second party is killed while removing timber.

2:00 PM NICKELL MOORE STUMBO
J. W. VS E. C. 2007CA002447
Whether statutory requirements for involuntary TPR were satisfied and whether Cabinet should have been made an indispensable party.

LOCATION: JEFFERSON COUNTY JUDICIAL CENTER, 10TH FLOOR APPELLATE
COURTROOM, 700 WEST JEFFERSON STREET, LOUISVILLE,

DATE: Monday, August 18, 2008

2:00 PM WINE CLAYTON DIXON
E. MEENA VS LOUISVILLE METRO COUNCIL ET AL. 2007CA001831
Meena appeals from an order affirming a re-zoning ordinance. He argues that the council’s action was arbitrary, was not supported by adequate findings or substantial evidence, and failed to properly address the traffic impact caused by the development.

2:45 PM WINE CLAYTON DIXON
CLAIRE LONG ET AL. VS ROBERT LOEFFLER ET AL. 2006CA001411
Long and Mosley appeal from summary judgment orders dismissing their action against a trustee. Whether original trustee was required to exercise her powers of appointment in writing; summary judgment on claim for breach of fiduciary duty; denial of motions to compel discovery, to amend complaint, and compel accounting; attorney fees and costs treated as distributions from trust.

LOCATION: CHRISTIAN COUNTY JUSTICE CENTER, 100 JUSTICE WAY, DISTRICT
COURTROOM 1, HOPKINSVILLE, KENTUCKY

DATE: Tuesday, August 19, 2008

10:00 AM STUMBO MOORE NICKELL
CHRISTOPHER HUFF VS RALPH KEPLEY ET AL. 2006CA002042
Appeal from dismissal per CR 41.02; whether trial court abused discretion in dismissing personal injury case for lack of prosecution.

10:45 AM STUMBO MOORE NICKELL
LESLIE PRIDE VS COMMONWEALTH OF KENTUCKY 2007CA002033
MOR direct appeal from conditional guilty plea; failure to suppress evidence obtained pursuant to search warrant; Did affidavit contain false or misleading information?

LOCATION: JEFFERSON COUNTY JUDICIAL CENTER, 10TH FLOOR APPELLATE
COURTROOM, 700 WEST JEFFERSON STREET, LOUISVILLE,

DATE: Tuesday, August 19, 2008

9:30 AM WINE CLAYTON DIXON
CHARLES LYNCH VS CLAIMS MANAGEMENT CORPORATION 2007CA001840
Lynch appeals from a summary judgment awarding CMC funds from his UM proceeds. Whether UM proceeds duplicate benefits received under private disability policy; enforceability and scope of reimbursement agreement; "made-whole" & "common fund" doctrines; real party in interest.

10:15 AM CLAYTON DIXON WINE
THE FLOORING GALLERY, LLC VS MOREL CONSTRUCTION COMPANY, INC.
2007CA001934
Appeal from an award of attorney’s fees absent a statute or contract.

2007CA000133
11:00 AM VANMETER WINE GUIDUGLI
UNIVERSITY MEDICAL CENTER, INC. VS MICHAEL BEGLIN ET AL. 2007CA000018
Did trial court improperly instruct jury on spoilation of evidence and punitive damages in this medical malpractice case?

Burdens required for terminating parental rights include child's injury with parent: C.(M.E.) v. CABINET FOR HEALTH AND FAMILY SERVICES (COA 5/16/2008)

C.(M.E.)  v. CABINET FOR HEALTH AND FAMILY SERVICES
FAMILY LAW:  Termination of parental rights and proving injury with the parent
2007-CA-001904
PUBLISHED: VACATING AND REMANDING
PANEL: CLAYTON PRESIDING; NICKELL, TAYLOR CONCUR
WARREN COUNTY
DATE RENDERED: 5/16/2008

Mother appealed judgment terminating her parental rights to two children. KRS 625.090 provides that parental rights may be involuntarily terminated if the court finds from the pleadings and clear and convincing evidence that the child has been adjudged to be an abused and neglected child, as defined under KRS 600.020(1), and that the termination would be in the best interests of the child. The court must also find by clear and convincing evidence one of the grounds under KRS 625.090(2). COA found that the Cabinet did not meet its burden. First, the Cabinet did not present substantial evidence under KRS 625.090(1). There was no evidence that the children suffered any direct, emotional or physical injury with the mother. Second, the Cabinet failed to provide reasonable services to reunite the family. Third, there was no substantial evidence to support a finding of no reasonable expectation of improvement in the mother's condition. Finally, the Cabinet failed to prove that the mother is incapable of rendering care in the future. Due to the lack of substantial evidence to support the trial court's termination judgment, the COA REVERSED AND REMANDED.

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Disparagement of property claim properly dismissed: KEITH V. LAUREL COUNTY FISCAL COURT (COA 5/16/2008)

KEITH V. LAUREL COUNTY FISCAL COURT
REAL ESTATE:  Disparagement of property claim
2007-CA-000446
PUBLISHED: AFFIRMING
PANEL:  GRAVES PRESIDING; COMBS, NICKELL CONCUR
LAUREL COUNTY
DATE RENDERED: 5/16/2008

In this appeal a landowner brought an action against the county fiscal court, county's development authority, and county officials, alleging that he incurred injury when the development authority's director made false statements about property adjacent to his which discouraged a hospital from locating on the adjacent property. The circuit court dismissed his action, and this appeal ensued.

The Court of Appeals held false statements regarding adjacent property did not provide a basis for disparagement of property claim, and the landowner's claim was barred by statute of limitations for slander and libel actions.

Digested by Michael Stevens

Inferred intent and effect on insurance coverage: KFBM V. COYLE (COA 5/16/2008)

KENTUCKY FARM BUREAU MUT. INS. CO. V. COYLE
INSURANCE:  INFERRED INTENT DOCTRINE AND ITS EFFECT ON COVERAGE
      2006-CA-001335
     PUBLISHED:  AFFIRMING
      PANEL: HENRY PRESIDING; ACRE AND LAMBERT CONCUR
      HARDIN COUNTY
      DATE RENDERED: 5/16/2008

      KFB appeals TC judgment upon jury verdict that a homeowner's policy issued to its insured Tweed provided coverage for the shooting of Elliott by Tweed's husband, Coyle. The shooting occurred when Elliott (who worked with Tweed and had apparently developed a strong attraction for her) was caught driving by Tweed's home in Nelson County and was pursued by Coyle. Coyle caught up with Elliott and forced him to stop, but Elliott again sped away which led Coyle to fire two shots at the vehicle with a pistol he had brought with him from the home. Coyle continued his pursuit and again caught up with Elliott in a parking lot in Hardin County. The same scenario again unfolded only this time Coyle struck Elliott with one of the shots fired into the vehicle window on this second occasion. Elliott thereafter filed a personal injury suit against Coyle alleging assault and battery. KFB eventually intervened seeking a determination that the policy issued to Tweed did not cover the intentional acts of Coyle, who admittedly was an insured under the policy as a household resident. KFB argued there was no "occurrence" under this factual scenario and that alternatively, the policy exclusion applied since the injury was expected or intended by Coyle. The TC denied both of KFB's MSJ's and submitted the question of intent to the jury by tendering the following instruction: Do you believe from the evidence that Coyle intentionally fired a pistol at or in the general direction of Elliott with the expected result of wounding/harming Elliott and was not an "accident" in the sense of being merely negligent and unintended? The second instruction read as follows: Do you believe from the evidence that Coyle understood the physical nature of the consequences of his actions and intended to shoot or expect to injure Elliott upon discharge of the firearm ..., and was not an "accident" in the sense of being merely negligent and unintended? The jury answered "No" to both thereby concluding Coyle's shooting was a negligent and unintended accident.
      
      On appeal, KFB argues that summary judgment should have been entered on the basis of the inferred intent doctrine. The COA acknowledged this exception to the general rule that if the injury was not actually and subjectively intended or expected by the insured, coverage is provided even though the action giving rise to the injury itself was intentional and the injury foreseeable. Under the inferred intent rule, however, the actor's intent to cause harm can be reasonably inferred from the facts and the nature of the action without having to resort to proof of that intent. The COA noted that Kentucky courts have applied this doctrine in the specific context of child molestation and even where the insured established a mental incapacity that precluded him from forming an intent to cause harm. The COA then highlights the reasoning from a number of decisions in which the doctrine was applied to deny coverage, particularly the recent COA decision in Nationwide Ins. Co. v. Pelgen (2007) where the insured who shot his wife had a mental incapacity. The COA reiterated the general view that the inferred intent rule is supported by sound public policy principles. As applied to the subject case, the COA held that Coyle's admission that he intentionally pointed a firearm at Elliott with the intent of discharge a bullet at him was not an "occurrence" as contemplated by even a liberal reading and broad application of the terms of the policy. As such, the COA reversed the TC judgment and remanded for entry of judgment in favor of KFB.


      Digested By Chad Kessinger
      Schiller Osbourn Barnes & Maloney                     

      

Owners of record are indispensable parties to quiet title action: BAKER V. WEINBERG (COA 5/16/2008)

BAKER V.  WEINBERG
REAL PROPERTY: Quiet title action re: gas leases and requirement that       titled owners be party to the action
2005-CA-001326
PUBLISHED: VACATING AND REMANDING
PANEL: HENRY PRESIDING; LAMBERT, WINE CONCUR
KNOTT COUNTY
DATE RENDERED: 5/16/2008

This appeal has at its genesis the entitlement to gas leases of property       in Eastern Kentucky going back to the late 1800's and a dispute over the       existence and/or ownership of the mineral rights between certain heirs and       purchases of the gas lease.  The matter involved the heirs of the       surface owner who had conveyed the gas lease (aka the Cooley Lease) versus       the heirs of those who had obtained the gas lease.  The leaseholders       relied upon an earlier judgment for purposes of res judicata to perfect       their title, but not all of the titled owners were parties to that action       and thus the earlier decision had no res judicata effect.       Furthermore, there were genuine issues of material fact on the       leaseholder's claim that they were entitled to the property via adverse       possession.  Both issues were remanded.       

Clean Gas is a family gas business owned by Bill Weinberg, his wife Lois Combs Weinberg, their son Jed Weinberg and, it appears, by other members of the Weinberg family. Clean Gas seeks out gas leases in Eastern Kentucky and sells the removed gas to wholesale gas distributors.
      
Clean Gas became interested in working the 1945 well and gas lease herein,       and the record reflects that members of the Weinbergs' extended family were successors to interests in the T.A. Martin Partnership which, again, had been assigned the W.W. Cooley lease in the 1940s.
      
      Believing that the lease was still valid, Clean Gas set about locating other successors to interests in the T.A. Martin       Partnership. In due course Clean Gas assembled what it alleged to be a majority of the T.A. Martin Partnership interests and, in effect, obtained a vote from the partners to remove gas from the Tandy Martin mineral estate, beginning with reworking the 1945 well. As part of its preparations Clean Gas executed a Department of Mines and Minerals Well Transfer form dated August 21, 1997, purporting to transfer from Lawrence Hall (who was then deceased) to Clean Gas the operating rights to the 1945 well.      

The COA followed other jurisdictions in holding that the owner of record must be named as a party to a quiet title action, and thus amply demonstrate that it is the rule that the record owners in a quiet title action (such as the Tandy Martin heirs in the present case) are required to be named as parties to the action.  The failure to include the Tandy Martin heirs as parties to the lawsuit is fatal to the appellants' counterclaim of adverse possession of the Tandy Martin mineral tract. The Tandy Martin heirs are record holders of title to the property pursuant to the 1912 deed. Their status as the lawful owners of the mineral estate was reaffirmed in the 1982 judgment in the coal lease case. The appellants, in effect, seek to defeat the ownership interest of the Tandy Martin heirs in the T.A. Martin mineral estate in a lawsuit in which the heirs are not present to defend their title.
      
As the appellants' adverse possession claim is not properly before this COA, it did not address the issue upon the merits, nor any of the other issues listed above which are ancillary to the claim.
      
Accordingly, the matter was remanded upon this issue for dismissal of the appellants' counterclaim of adverse possession, without prejudice.
      
The appellants contend, for various reasons, that the appellees do not possess a valid leasehold interest in the Tandy Martin mineral estate and, therefore, are not entitled to enter onto their property to work the lease. The COA agreed with the appellants that there are genuine issues of material fact relating to all of the foregoing issues and remanded on this issue, as well.

      

Digested by Michael Stevens
      
      

   

LAWWIRE: May 9, 2008 - KENTUCKY COURT OF APPEALS DECISIONS (2008:23)

May 9, 2008 -  KENTUCKY COURT OF APPEALS DECISIONS (2008:23)

• HTML Version of the LawWire - Published and Nonpublished decisions
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• COA Argument Calendars
• SCOKY Argument Calendars
• Published decisions are digested below with links to full text, but the "not to be published" can be found in the minutes (by name, court, judges, decision, number, county, and LINK to full text)
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• 33 rendered decisions
  • Nos. 539-571
  • 4 published decisions

District court and family court jurisdictional interplay addressed with no exclusivity: GOMEZ V. GOMEZ (COA 5/9/2008)

GOMEZ V. GOMEZ
FAMILY LAW:  District court and family court jurisdiction not mutually exclusive regarding domestic violence orders
2007-CA-001919
PUBLISHED: AFFIRMING
PANEL: DIXON PRESIDING; NICKELL, KNOPF CONCUR
BULLITT COUNTY
DATE RENDERED: 5/9/2008

Appellee filed a domestic violence petition in district court requesting an emergency protective order against the Appellant. The district court did not issue an emergency protective order, but did issue a summons and set the matter for a hearing. After the family court held a full evidentiary hearing, it issued a domestic violence order. Appellant appealed the order alleging that 1) since the district court failed to issue an emergency protective order, the family court lacked jurisdiction to either hold a hearing or enter a domestic violence order and 2) insufficiency of the evidence. COA found that the family court did have proper jurisdiction. Family courts are the primary forum for matters concerning domestic violence and abuse, although the district courts have concurrent jurisdiction to enter emergency protective orders under KRS 403.725. The Court found no statutory language to support Appellant's position that district courts retain exclusive jurisdiction unless an emergency protective order is issued. Of special significance in the instant case was the fact that the parties also had a pending divorce action, which gave the family court jurisdiction under KRS 403.725(4) as well. COA also found that the family court's issuance of the domestic violence order was supported by the evidence and was not clearly erroneous.
AFFIRMED.

Digest by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Angioplasty project withstands constitutional scrutiny: THE ST. LUKE HOSPITALS, INC. V. COM. (COA 5/9/2008)

THE ST. LUKE HOSPITALS, INC. V. COM.
ADMINISTRATIVE LAW:  Angioplasty pilot project withstands constitutional scrutiny
2007-CA-001092
PUBLISHED: AFFIRMING
PANEL: DIXON PRESIDING; COMBS, KNOPF CONCUR
KNOX COUNTY
DATE RENDERED: 5/9/2008

CA affirms dismissal of declaratory judgment action challenging the constitutionality of KRS establishing an angioplasty pilot project.

Pursuant to state law, the Cabinet for Health and Family Services issued the State Health Plan establishing a pilot project to study the risks and benefits of allowing angioplasty at hospitals without immediate access to an open-heart surgery facility. The scope was limited to one eastern Kentucky hospital and one western one located thirty minutes from an on-site open-heart surgery center. St. Luke, a northern Kentucky facility, (joined by other facilities) filed this action challenging the constitutionality of the project.

CA holds that both the two-hospital limitation and the thirty-minute requirement are reasonable in light of the inherent risks of the project, including increased patient mortality. The Cabinet held a lengthy review process and the regulation survives rational basis scrutiny.

Digested by John E. Hamlet

Business failed to timely file for refund of overpayment of occupation tax in Louisville: PARADISE TOMATO KITCHENS, INC. V. LOUISVILLE-JEFFERSON COUNTY METRO REVENUE COMMISSION (COA 5/9/2008)

PARADISE TOMATO KITCHENS, INC. V. LOUISVILLE-JEFFERSON COUNTY METRO REVENUE COMMISSION
REVENUE AND TAXATION:  Overpayment of occupational tax and time for filing for refund
2007-CA-000965
PUBLISHED: AFFIRMING
PANEL: KELLER PRESIDING; TAYLOR CONCURS; GRAVES CONCURS W/SEP. OP.
JEFFERSON COUNTY
DATE RENDERED: 5/22/2008

Paradise Tomato Kitchens, Inc. sought a refund of the occupational tax assessed by the Louisville/Metro Government (the Metro Government) that it had overpaid.  However, the Commission refunded only a portion of the overpayment. Therefore, Paradise filed suit seeking a refund of the remainder of the overpayment. The Jefferson Circuit Court entered an opinion and order granting the Appellees’ motion for summary judgment and it is from this order and opinion that Paradise appeals.

In its appeal, Paradise raises several constitutional, statutory, and common law issues which were rejected by the COA and the lower court decision affirmed.

From 1993 through 2001, Paradise’s accounting firm calculated the amount owed for the occupational tax based on 100% of Paradise’s net profits, not on
the portion of those profits attributable to activities within the City. Paradise filed tax returns based on these incorrect calculations.

In early 2003, the accounting firm discovered its mistake and Paradise filed an amended return for the 2001 calendar year, seeking a refund. The Commission
approved Paradise’s claim and issued a refund in the amount of $76,113. Paradise also filed amended returns for 1993 through 2000, seeking an additional refund of
$202,434. The Commission did not approve those claims by Paradise

Ordinance § 112.10 was amended during the time period in question; however, the versions state that the Commission cannot authorize any refund unless
application is made within either one year of the date payment was due or the date the return was filed. KRS 160.487 is part of a statutory plan to provide funding for school systems in counties with populations of 300,000 or more

Paradise argued that the taxes collected here violate the mandate of fair apportionment.  However, Paradise mischaracterizes what occurred since the revenue commission did not “collect” and did not fail to apportion what was appropriately due.

Paradise failed to apportion and “paid” more than was due. While this may appear to be a pedantic distinction, it is, nonetheless, significant.

In Gossum, the Supreme Court of Kentucky cited to the United States Supreme Court’s holding in McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, 496 U.S. 18, 110 S.Ct. 2238, 110 L.Ed.2d 17 (1990), that “the due process clause of the Fourteenth Amendment obligates the state to provide meaningful backward-looking relief to rectify any unconstitutional deprivation" and thus the Court held that a “two-year statute of limitations . . . is not violative of constitutional standards.”

COA then held that nothing in the application of Ordinance § 112.10 and KRS 160.487 is violative of the Commerce Clause.

The general rule is that a common law right to a tax refund exists: “(1) when the taxing statute or regulation is invalid and the tax payments were submitted involuntarily, [or] (2) when the taxing authority has engaged in misrepresentation.” Inland Container v. Mason County, 6 S.W.3d 374, 377 (Ky. 1999).  Since Paradise cannot establish that the Ordinance and Statute are wholly unauthorized or that it involuntarily paid the excess tax, it can have no common law right of action to recover that excess amount.

The general rule is that the knowledge of an agent is imputed to the principal. Paradise’s CPA’s were acting as Paradise’s agent so that knowledge of an agent is imputed to the principal.  There is no evidence that the CPA’s could not have known or should not have known how to correctly prepare Paradise’s tax returns.

Therefore, there is no reason why Paradise could not have known or should not have known how to correctly prepare the tax returns.

TAYLOR, JUDGE, CONCURS. GRAVES, SENIOR JUDGE, CONCURS AND FILES SEPARATE OPINION.
GRAVES, SENIOR JUDGE, CONCURRING: I concur, but I write separately to address the disparity in the respective positions of the parties. This case presents a basic inequity in the manner in which the government deals with its tax paying citizens. Were the roles of the parties herein reversed, that is, had the government mistakenly issued an excessive tax refund, the taxpayer would be prosecuted for failure to make required disposition of property if he refused to return the overpayment. The government should behave in the same manner it mandates its citizens behave. The government should not be rewarded for expropriating monies to which it is not entitled.

Digested by Michael Stevens

Notice of appeal SHALL be filed within 30 days. DIAZ V. BARKER AND ALLSTATE INS. CO. (COA 5/9/2008)

DIAZ V. BARKER AND ALLSTATE INS. CO.
APPEALS:  Notice SHALL be filed within 30 days
2006-CA-001198
PUBLISHED: AFFIRMING
PANEL: VANMETER PRESIDING; TAYLOR, KELLER CONCUR
JEFFERSON COUNTY
DATE RENDERED: 5/9/2008

Basic civil procedure here: CR 73.02(1)(a) mandates that a notice of appeal SHALL be filed within 30 days after the date of notation of service of the judgment. COA disagreed with Plaintiff's argument that she had the option to wait to appeal until the resolution of claims against all parties, citing CR 54.02, which states that in actions involving more than one claim or multiple parties, a court may grant a final judgment upon one or more but less than all of the claims or parties only upon a determination that there is no just reason for delay. The CAs held that the trial court's orders of summary judgment conclusively determined the rights of the parties as to each other, making the orders appealable at their time of entry.

The Plaintiff had moved to recuse the trial court and argued he lacked jurisdiction over the case once she made these motions pursuant to KRS 26A.015(2). The CAs noted that there are two alternative remedies to seek removal of a judge: a motion can be filed with the judge under KRS 26A.015(2), or an affidavit can be filed via KRS 26A.020(1) seeking relief from the Chief Justice. Here, the Plaintiff sought relief under .015(2) and is limited to the procedure set out therein. CAs held that on the face of the record the trial court was under no obligation to step aside, and as for any allegations that trial court made improper comments, the record was silent. And a silent record, friends, is presumed to support the decision of the trial court.

Cherry Henault Guarnieri