Kentucky Court Report - SCOKY & COAKY

October 14, 2011 COA Minutes -- Nos. 947-965 (19 decisions; 5 published)

October 14, 2011 COA Minutes -- Nos. 947-965 (19  decisions; 5 published)

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PUBLISHED DECISIONS OF COA:

947.  KLAN CASE FROM MEADE COUNTY ARISING FROM ASSAULT.
EDWARDS (RONALD)
VS.
GRUVER (JORDAN) AND JARRED HENSLEY
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
CAPERTON (CONCURS) AND CLAYTON (CONCURS)
2008-CA-002348-MR
TO BE PUBLISHED
MEADE

ORDER GRANTING PETITION FOR REHEARING, WITHDRAWING OPINION RENDERED JANUARY 14, 2011, ISSUING NEW OPINION AND DENYING MOTION FOR ORAL ARGUMENT ON REHEARING: RONALD EDWARDS 2008-CA-002348-MR
VS. JORDAN GRUVER, ET AL ENTERED: 10/14/2011

ACREE, JUDGE: Ronald Edwards appeals a Meade Circuit Court jury verdict and judgment finding him liable for the injuries sustained by Jordan Gruver at the hands of recruiters for Edwards’ wholly owned unincorporated association, the Imperial Klans of America (IKA). Gruver’s injuries were sustained when four of Edwards’ recruiters accosted Gruver and two physically assaulted him; Gruver’s assailants were Jarred Hensley, Andrew Watkins, Joshua Cowles, and Matthew Roberts. In this same case, Hensley was found liable on the claim of assault, and Edwards was found liable on alternate claims of his negligent selection and retention of unfit individuals to serve as recruiters, and his negligent supervision of his recruiters.1    Only Edwards pursued an appeal of the judgment.2    We affirm.

955.  APPEAL DISMISSED AS FRIVILOUS.
CARDWELL (CLAIR JOE)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AND ORDER DISMISSING
NICKELL (PRESIDING JUDGE)
ACREE (CONCURS) AND MOORE (CONCURS)
2009-CA-002401-MR
TO BE PUBLISHED
JEFFERSON

NICKELL, JUDGE: Clair Joe Cardwell, pro se, appeals from the Jefferson Circuit Court’s denial of his successive motion for relief pursuant to CR1 60.02(b) and CR 61.02. Having reviewed the record, the briefs and the law, we dismiss this appeal as frivolous under CR 73.02(4) and direct the circuit court to deny all future requests for in forma pauperis status for subsequent collateral attacks on this conviction.

957.  APPEALS.  PARTIAL SUMMARY JUDGMENT (INTERLOCUTORY?), FINALITY.
MORGAN (JOHN R.)  M.D.
VS.
APPALACHIAN REGIONAL HEALTHCARE, INC.
OPINION AFFIRMING
WINE (PRESIDING JUDGE)
ACREE (CONCURS) AND LAMBERT (CONCURS)
2010-CA-000197-MR
TO BE PUBLISHED
FAYETTE

WINE, JUDGE: John R. Morgan appeals from a judgment and order of the Fayette Circuit Court finding that he had breached a contract with Appalachian Regional Healthcare, Inc. (“ARH”) and awarding ARH damages in the amount of $163,511.06 plus interest, attorneys’ fees in the amount of $24,183.50, and costs. This action originated when ARH filed a complaint for contract damages arising out of Morgan’s failure to pay ARH amounts due and owing under two separate loan agreements entered into while Morgan was in medical school. After our review, we affirm.

Morgan’s argument ultimately fails, but for reasons not addressed by the parties.
It is true that a judgment generally becomes final ten days after its entry by the trial court. See Kentucky Rules of Civil Procedure (“CR”) 52.02, 59.04, 59.05. Once a judgment is final, a trial court loses jurisdiction over the matter in question. Mullins v. Hess, 131 S.W.3d 769, 774 (Ky. App. 2004). CR 54.01 defines a final judgment as follows:

A judgment is a written order of a court adjudicating a claim or claims in an action or proceeding. A final or appealable judgment is a final order adjudicating all the rights of all the parties in an action or proceeding, or a judgment made final under Rule 54.02. Where the context requires, the term “judgment” as used in these rules shall be construed “final judgment” or “final order.”

(Emphasis added). However, “if an order entered in a cause does not put an end to the action, but leaves something further to be done before the rights of the parties are determined, it is interlocutory and not final.” Hubbard v. Hubbard, 303 Ky. 411, 412, 197 S.W.2d 923, 924 (1946); see also Hill v. Kentucky Lottery Corp., 327 S.W.3d 412, 418 (Ky. 2010); Harris v. Camp Taylor Fire Prot. Dist., 303 S.W.3d 479, 482 (Ky. App. 2009). This point is important since it is dispositive of the issue before us.

In making their arguments, neither party speaks to the fact that the summary judgment order of December 16, 2009, was never a “final” order because it failed to resolve the question of damages. In Chittum v. Abell, 485 S.W.2d 231 (Ky. 1972), the then-Court of Appeals explicitly held that when a judgment addressed liability – but not damages – it was not a “final” judgment because it did not fully adjudge the damage claim. Id. at 237; see also Tax Ease Lein Investments 1, LLC v. Brown, 340 S.W.3d 99, 102 (Ky. App. 2011). As the Court said in Chittum, “a determination that adjudicates only part of a claim cannot be made final.” Chittum, 485 S.W.2d at 237. Consequently, the order of December 16, 2009, was nonfinal and interlocutory and, therefore, subject to amendment at any time prior to “final” adjudication. See Tax Ease, 340 S.W.3d at 103; Bank of Danville v. Farmers Nat. Bank of Danville, 602 S.W.2d 160, 164 (Ky. 1980); CR 54.02(1).

Federal courts share this same view. “[P]artial summary judgment[s] limited to the issue of petitioner’s liability . . . are by their terms interlocutory, see Fed. Rule Civ. Proc. [Federal Rules of Civil Procedure] 56(c), and where assessment of damages or awarding of other relief remains to be resolved have never been considered to be ‘final[.]’ ” Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 744, 96 S. Ct. 1202, 1206, 47 L. Ed. 2d 435 (1976).
We further note that the finality language included in the order of December 16, 2009, failed to transform it into a final judgment. “[M]erely adding finality recitations from CR 54.02 will have no effect on an order that ‘did not finally fix the rights of any of the parties’ as to even one claim.” Tax Ease, 340 S.W.3d at 101, quoting Hale v. Deaton, 528 S.W.2d 719, 722 (Ky. 1975); see also Liberty Mut., 424 U.S. at 742, 96 S. Ct. at 1206 (rejecting the view that the district court’s use of the finality recital set forth in Fed. Rule Civ. Proc. 54(b) in entering judgment on the issue of liability made the judgment final and appealable); Chittum, 485 S.W.2d at 237.

960.  CRIMINAL SENTENCING.
MATTHEWS (BOYD DANIEL)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
DIXON (CONCURS) AND VANMETER (CONCURS)
2010-CA-001157-MR
TO BE PUBLISHED
MCCRACKEN

LAMBERT, JUDGE: Boyd Daniel Matthews appeals from the final judgment of the McCracken Circuit Court convicting him of first-degree trafficking in a controlled substance (cocaine) and for being a first-degree persistent felony offender. As a result of these convictions, Matthews received an enhanced sentence of seventeen years’ imprisonment. After careful review, we affirm the conviction.

961. CRIMINAL PROCEDURE.  VEHICLE SEARCH.
STEVENS (ARCHIE LEE)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
TAYLOR (CONCURS) AND DIXON (CONCURS)
2010-CA-001913-MR
TO BE PUBLISHED
MCCREARY

LAMBERT, JUDGE: Archie Stevens entered a conditional plea of guilty to two counts of receiving stolen property of a value of $300.00 or more. The McCreary Circuit Court entered judgment sentencing him to imprisonment of one year in the penitentiary on each count, to run consecutively for a total of two years, with the sentence probated for three years. Stevens appeals, contending the trial court erred in failing to sustain his supplemental motion to suppress a search of his property. After careful review, we affirm.

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953.  TORTS.  PREMISES LIABILITY.  COA AFFIRMING MSJ DISMISSAL OF PLAINTIFF'S CLAIMS.
BENTLEY (MELISSA)
VS.
HALL (DENZIL)
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
TAYLOR (CONCURS) AND KELLER (CONCURS)
2009-CA-001920-MR
NOT TO BE PUBLISHED
FLOYD

LAMBERT, SENIOR JUDGE: Melissa Bentley appeals from the Floyd Circuit Court’s entry of summary judgment as to her personal-injury negligence claim against Denzil Hall. For reasons that follow, we affirm.

Appellant was injured in a fall at the Dwale Mobile Home Park in Floyd County, Kentucky, on October 4, 2007. She fell backwards while attempting to ascend the first of three steps attached to a trailer porch after returning from a social event with her boyfriend, Steve Montgomery.2    Appellee owns the mobile home park, as well as the trailer at which the fall occurred. As a result of the fall, Appellant suffered injuries to her left elbow that have required multiple surgeries and that caused her to miss approximately four months of work.
Appellant subsequently filed a personal-injury negligence action against Appellee in which she alleged that the subject premises were “in an unreasonably defective condition” and that Appellee had failed to provide adequate warning of their state or to take sufficient precautions to address the risk that someone might fall. The parties undertook discovery, and both Appellant and Appellee were deposed.

“To recover under a claim of negligence in Kentucky, a plaintiff must establish that (1) the defendant owed a duty of care to the plaintiff, (2) the defendant breached its duty, and (3) the breach proximately caused the plaintiff’s damages.” Lee v. Farmer’s Rural Elec. Co-op. Corp., 245 S.W.3d 209, 211-12 (Ky. App. 2007). For purposes of establishing duty, visitors upon property have traditionally been placed in one of three categories: trespassers, licensees, or invitees. Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). The parties agree that Appellant was a social guest at the time of the subject incident; therefore, she is considered a licensee for purposes of determining the duty of care she was owed. See Shipp v. Johnson, 452 S.W.2d 828, 829 (Ky. 1969).

A “licensee” enters upon the premises owned by another “by express invitation or implied acquiescence of the owner or occupant solely on the licensee’s own business, pleasure or convenience.” Scuddy Coal Co. v. Couch, 274 S.W.2d 388, 390 (Ky. 1954). “A possessor of land owes a licensee the duty of reasonable care either to make the land as safe as it appears, or to disclose the fact that it is as dangerous as he knows it to be.” Scifres, 916 S.W.2d at 781. “There is no duty to warn a licensee of any danger or condition which is open and obvious or which should or could be observed by the licensee in the exercise of ordinary care.” Id. Ultimately, “the basic distinction between the duties of the possessor is that he owes an invitee the duty of discovering a dangerous condition, whereas he owes a licensee only the duty to warn him of a dangerous condition already known to the possessor.” Mackey v. Allen, 396 S.W.2d 55, 58 (Ky. 1965) (emphasis in original); see also Terry v. Timberlake, 348 S.W.2d 919, 920 (Ky. 1961) (“No duty was owed to the appellee by appellants other than that of not knowingly letting her come upon a hidden peril or willfully or wantonly causing her harm.”).

The question then becomes whether Appellant produced sufficient evidence of a breach of this duty to avoid summary judgment. We do not believe that she did. Appellant states in her brief that “[a]s the constructor of the steps in question,” Appellee “knew or should have known of their dangerous and slippery nature.” She provides little clarity on the question of how the steps were “dangerous and slippery,” but when asked in her deposition what was wrong with the steps, she replied, “It’s just slick wood.” However, Appellant acknowledged in her deposition that she had used those same steps on a number of previous occasions and that she had never had any problems with them or made any complaints about them. Therefore, Appellant had ample opportunity to observe and discover the manner in which the steps were built and the state of the wood with which they were built. Moreover, Appellant has cited to nothing in the record that would suggest that the steps were constructed in a faulty manner by Appellee, that Appellee had done anything to the steps prior to Appellant’s fall that would have made the steps unreasonably dangerous, or that he otherwise knew of any hidden defect that would have rendered them unreasonably dangerous.

Ultimately, then, the record is devoid of any evidence supporting Appellant’s claim that the steps were in a “dangerous condition” or explaining how Appellee breached a duty owed to her. Appellant essentially assumes that a “dangerous condition” existed, ipso facto, because of the fact that she fell, but she supports no evidence to support her assumption. Thus, this claim provides no basis to reverse the trial court’s entry of summary judgment. “The party opposing summary judgment cannot rely on their own claims or arguments without significant evidence in order to prevent a summary judgment.” Wymer v. JH Properties, Inc., 50 S.W.3d 195, 199 (Ky. 2001). “[S]peculation and supposition” are not enough to survive a motion for summary judgment. O’Bryan v. Cave, 202 S.W.3d 585, 588 (Ky. 2006), quoting Chesapeake & Ohio Ry. Co. v. Yates, 239 S.W.2d 953, 955 (Ky. 1951).

Summary judgment was also appropriate on the basis that Appellant failed to produce any evidence of causation. Although Appellant has made vague claims that the steps were “slippery,” when she was asked in her deposition what had caused her fall, Appellant responded, “I don’t know.”3    In a similar instance in
3 Appellant characterizes the steps as “wet” in her brief. However, when asked in her deposition if the steps were wet, Appellant indicated that she did not know. Thus, the record does not support this characterization.
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which a party had fallen down steps but could not specify what had caused his fall, the former Court of Appeals held that summary judgment was appropriately entered against that party:
Appellant was the sole witness concerning the circumstances of his fall. Manifestly, all of his evidence on this phase of the case was before the court on the motion for a summary judgment, and there appeared to be no reasonable possibility of producing more or better evidence on this point.... Considering the undisputed facts and the statements of appellant that he saw nothing and did not know what caused him to fall, the motion for a summary judgment was properly sustained....
Tharp v. Tharp, 346 S.W.2d 44, 46 (Ky. 1961) (internal citations omitted). Because of a similar lack of any evidence regarding the cause of Appellant’s fall, we are compelled to reach the same conclusion here.

956. TORTS, NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS.
AKEMON (VALERIE)
VS.
C & S OIL PIPELINE CONSTRUCTION, LLC, ET AL.
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
CAPERTON (CONCURS) AND THOMPSON (CONCURS IN RESULT ONLY)
2010-CA-000104-MR
NOT TO BE PUBLISHED
LETCHER

LAMBERT, SENIOR JUDGE: Valerie Akemon seeks our review claiming that an erroneous jury instruction was prejudicial in a trial where she sought recovery for negligent infliction of emotional distress. The jury returned a verdict against Akemon and upon review, we affirm.

958.  CIVIL PROCEDURE.  NOTICE PLEADING AND ADEQUACY OF COMPLAINT AFFIRMED.  DEFAULT JUDGMENT.
BUCKMINSTER (ALISA)
VS.
BOLAND (LEIGH ANNE)
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
ACREE (CONCURS) AND STUMBO (CONCURS)
2010-CA-000689-MR
NOT TO BE PUBLISHED
JEFFERSON

LAMBERT, SENIOR JUDGE: Appellant Alisa Buckminster appeals from a judgment of the Jefferson Circuit Court entered in a tort action filed by Appellee Leigh Anne Boland against Appellant. Appellant specifically challenges the circuit court’s earlier entry of a default judgment as to liability in favor of Appellee. Appellant contends that the default judgment should have been set aside because Appellee’s complaint failed to state a claim upon which relief could be granted. After our review, we conclude that the complaint satisfied the lenient standards for notice pleading. Thus, we affirm.

She instead argues that a default judgment never should have been entered because “[a] default judgment may not be based upon a complaint which fails to state a cause of action.” Dalton v. First Nat. Bank of Grayson, 712 S.W.2d 954, 956 (Ky. App. 1986). Appellant contends that since Appellee’s complaint failed to state a cognizable claim for “abuse of process” or “malicious prosecution,” default judgment was erroneously entered.
We consider Appellant’s claim with the understanding that “the modern rule is to require only the most general and conclusory pleadings in order to sustain a cause of action[.]” Id. The Rules of Civil Procedure must be “liberally construed” with respect to whether a party has stated a cause of action and “much leniency should be shown in construing whether a complaint on which a default judgment is based states a cause of action[.]” Morgan v. O’Neil, 652 S.W.2d 83, 85 (Ky. 1983).

By its own terms, CR 8.01 requires only that a complaint provide “a short and plain statement of the claim showing that the pleader is entitled to relief[.]” CR 8.01(1). This entails simply setting out facts or conclusions sufficiently to identify the basis of the claim. Grand Aerie Fraternal Order of Eagles v. Carneyhan, 169 S.W.3d 840, 845 (Ky. 2005). Ultimately, “[t]he test is whether the pleading sets forth any set of facts which—if proven—would entitle the party to relief. If so, the pleading is sufficient to state a claim.” Mitchell v. Coldstream Laboratories, Inc., 337 S.W.3d 642, 645 (Ky. App. 2010). This determination is a question of law that we consider de novo. Id. For purposes of testing the sufficiency of the complaint, we assume that the allegations contained therein are true. First Nat. Bank of Mayfield v. Gardner, 376 S.W.2d 311, 315 (Ky. 1964).

October 7, 2011 COA Minutes -- Nos. 910-938 (29 decisions; 6 published)

October 7, 2011 COA Minutes --         Nos. 910-938 (29  decisions; 6 published)

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PUBLISHED DECISIONS OF COA:

910.  SUBJECT MATTER JURISDICTION.
BIRCHWOOD CONSERVANCY, A CALIFORNIA CORPORATION, ET AL.
VS.
UNITED BROTHERHOOD OF CARPENTERS
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
ACREE (PRESIDING JUDGE)
DIXON (CONCURS) AND NICKELL (CONCURS)
2009-CA-001413-MR
TO BE PUBLISHED
SCOTT

 ACREE JUDGE: Birchwood Conservancy, Lucinda Christian, Evan Blakeny, and Robert Christian appeal the Scott Circuit Court’s July 2, 2009 Opinion and Order Dismissing their complaint against the United Brotherhood of Carpenters (the Union). For the following reasons, we affirm in part, reverse in part, and remand.

STDS OF REVIEW:  APPELLATE REVIEW OF TRIAL COURT SUBJECT-MATTER JURISDICTION. 

Whether a court had subject-matter jurisdiction over the case is a question of law; therefore our review is de novo. Floyd County Bd. of Educ. v. Ratliff, 955 S.W.2d 921 (Ky. 1997). Likewise, whether a court may exercise personal jurisdiction presents a question of law subject to de novo review. Hinners v. Robey, 336 S.W.3d 891, 895 (Ky. 2011) (citing Appalachian Regional Healthcare, Inc. v. Coleman, 239 S.W.3d 49, 53-54 (Ky. 2007)). Similarly, when a defendant moves to dismiss a complaint for failure to state a claim, “the circuit court is not required to make any factual determination; rather, the question is purely a matter of law.” James v. Wilson, 95 S.W.3d 875, 884 (Ky. App. 2002). A court is not required to make any findings of fact for any of these rulings. Because the case sub judice presents all three of these issues, our review is entirely de novo.

To some degree, we can attribute the confusion of subject-matter- jurisdiction concepts and capacity concepts to jurisprudence that evolved prior to the rules of modern pleading; however, such jurisprudence is no longer followed.
Some early decisions suggested that a defect in capacity deprives the court of subject-matter jurisdiction, since a real case or controversy does not exist when one of the parties is incapable of suing or being sued, [footnote omitted] although more recent authority has rejected that characterization. [Brown v. Keller, 274 F.2d 779 (6th Cir. 1960), cert. denied, 363 U.S. 828, 80 S. Ct. 1599, 4 L. Ed. 2d 1523 (1960).] To treat capacity problems as subject-matter jurisdiction defects seems to exaggerate their significance . . . . In Van Dusen v. Barrack,[376 U.S. 612, 84 S. Ct. 805, 11 L. Ed. 2d 945 (1964),] the Court . . . indicates that capacity is not a jurisdictional issue . . . .
6A Wright, Miller, Kane, and Marcus, Fed. Prac. & Proc. Civ. § 1559 (3d ed. & 2011 Supp.).7    Our own Supreme Court agreed with this analysis in Baker v. Fletcher, where that Court said, “Failure to join a proper party is not jurisdictional, thus does not warrant a sua sponte dismissal. The same holds true for allegedly suing an improper party. CR 9.01[.]” 204 S.W.3d 589, 600 (Ky. 2006) (emphasis added).
In this case, subject matter jurisdiction was never a real issue. “[S]ubject matter does not mean ‘this case’ but ‘this kind of case.’ ” Harrison v. Leach, 323 S.W.3d 702, 705 (Ky. 2010) (citation omitted). The Scott Circuit Court, as a court of general jurisdiction, has been vested with subject-matter jurisdiction over just such cases as Birchwood brought – contract disputes and suits in equity. Ky. Const. §§ 109 & 112(5); Kentucky Revised Statutes (KRS) 23A.010; Peter v. Gibson, 336 S.W.3d 2, 5 (Ky. 2010).
The Scott Circuit Court “acquired jurisdiction of the subject-matter [of Birchwood’s claims] when the petition [or, as in this case, the complaint] was filed and summons issued[.]” Hudson v. Manning, 250 Ky. 760, 63 S.W.2d 943, 945 (1933). There is no merit in the argument that the circuit court was not vested with subject matter jurisdiction. We move on to the issue of the lack of personal jurisdiction of the Union.

911.  TORTS.  PREMISES LIABILITY ( NOT "SLIP AND FALL"). EXPOSURE TO ABSESTOS BY FORD TO CONTRACTORS ON PREMISES. ADMISSIBILITY OF OLD NEWSPAPER STORIES; EXPERT  TESTIMONY. DAUBERT.

REHM (DEBBIE ELLEN), ET AL.
VS.
FORD MOTOR COMPANY, ET AL.
OPINION AFFIRMING THE APPEAL AND CROSS-APPEAL
COMBS (PRESIDING JUDGE)
CAPERTON (CONCURS IN PART, DISSENTS IN PART AND FILES SEPARATE OPINION ) AND THOMPSON (CONCURS IN RESULT AND FILES SEPARATE OPINION)
2009-CA-001868-MR
2009-CA-001974-MR
TO BE PUBLISHED
JEFFERSON

 COMBS, JUDGE:    Debbie Ellen Rehm, individually and as Executrix of the Estate of James David Rehm; Nicholas James Rehm; and Christina Marie Rehm (the Rehms) appeal from the judgment of the Jefferson Circuit Court following a jury verdict in favor of Ford Motor Company in a premises liability lawsuit. Ford Motor Company cross-appeals. Following our review of the extensive record, the facts, and the law, we affirm both as to the appeal and as to the cross-appeal.

DAUBERT AND EXPERTS.

The Rehms’ next arguments are related to the trial court’s allowing testimony from Ford’s expert witness, Dr. Robert Morgan, an occupational epidemiologist. Dr. Morgan offered his theory that James had developed mesothelioma as a result of household exposure to his own father’s work clothes. The elder Mr. Rehm had worked as an elevator mechanic, and Dr. Morgan speculated that he could have carried home asbestos in his hair and on his clothing. Dr. Morgan also mentioned that James had been exposed to asbestos in plants other than Ford as possible alternate sources of contamination.
The Rehms argue that Dr. Morgan’s household exposure theory is speculative and without foundation because James’s father testified that he had never been exposed to asbestos during his work as an elevator mechanic. They also contend that the testimony was prejudicial in giving the jury the suggestion that James’s own work as an elevator mechanic could have been the source of his exposure to asbestos.
Rehm also contends that Dr. Morgan’s testimony about the household exposure was unreliable. KRE 702 sets forth the standards for expert testimony as follows:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or
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education, may testify thereto in the form of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the facts of the case.
Additionally, the Supreme Court of the United States has provided a list of factors to assist the trial court in its determination: 1) whether the expert’s theory can be or has been tested; 2) whether the expert’s theory has been published or subject to peer review; 3) a scientific technique’s potential rate of error and standards for its operation; and 4) the general acceptance of the theory in the scientific community. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94, 113 S. Ct. 2786, 2796-97, 125 L. Ed. 2d 469 (1993).
In its restatement of Daubert, the Supreme Court of Kentucky has admonished that the standard is flexible – “a court may consider one or more or all of the factors mentioned in Daubert, or even other relevant factors, in determining the admissibility of expert testimony.” Toyota Motor Corp. v. Gregory, 136 S.W.3d 35, 40 (Ky. 2004) (quoting Johnson v. Commonwealth, 12 S.W.3d 258, 264 (Ky. 2000)).

Our Supreme Court has recently evaluated a case very much like the one before us, Burton v. CSX Transp., Inc., 269 S.W.3d 1 (Ky. 2008). In Burton, as in this case, the trial court was not assessing the reliability of a “particular theory or technique” as indicated by Daubert. Instead, Ford presented general theories of a causal link between domestic exposure and mesothelioma and of higher risk in elevator mechanics. In Burton, the court held that when expert testimony was based on literature, the expert must be “sufficiently qualified in the proper field of study to offer an opinion that is helpful to decide the specific questions presented.” Id. at 7. If the expert is qualified, then the testimony will “pass muster under the Daubert rubric.” Id.

914.  ATTORNEYS FEES.  RENTAL AGREEMENTS.
O'ROURKE (RICHARD)
VS.
LEXINGTON REAL ESTATE COMPANY, LLC.
OPINION AND ORDER REVERSING AND REMANDING
LAMBERT (PRESIDING JUDGE)
CAPERTON (CONCURS) AND COMBS (CONCURS)
2010-CA-000108-MR
TO BE PUBLISHED
FAYETTE

 LAMBERT, SENIOR JUDGE: Richard O’Rourke appeals from the trial court’s denial of his motion to reconsider the award of attorney’s fees in favor of Lexington Real Estate Co., LLC. Upon review, we reverse and remand to the trial court for further consistent proceedings.

ATTORNEYS FEES.

Generally, with respect to attorney’s fees, Kentucky follows the American Rule of individual party responsibility rather than the fee shifting practice of some states and some other nations. Louisville Label, Inc. v.Hildesheim, 843 S.W.2d 321, 326 (Ky. 1992). See Knott v. Crown Colony Farm, Inc., 865 S.W.2d 326, 331 (Ky. 1993), holding that without an attorney’s fees statute, any such recovery must derive from the underlying contract. However, the Kentucky General Assembly has created a limited statutory exception to the general rule. That exception provides that if “noncompliance is willful the landlord may recover actual damages and reasonable attorney’s fees.” KRS 383.660(3).    “’Willful’ means with deliberate intention, not accidentally or inadvertently, and done according to a purpose.” KRS 383.545(17).
From the record, we are unconvinced that any act or failure to act by O’Rourke meets the required statutory standard. Although O’Rourke appears to have made unkept promises of future rental payment and appears to have left the vacated property in less than perfect condition, his noncompliance with the terms of the rental agreement was not “willful” as that term is defined in KRS 383.545(17).

Ordinarily, the failure to pay rent when due, accompanied by requests for extensions of time and promises of future payment, falls short of the statutory standard. Likewise, tasteless apartment decoration is hardly the type of willful conduct the statute envisions. To compensate the landlord for such matters as these, the lease agreement must be the basis for recovery, and a substantial recovery for past due rent and property damage was allowed here. O’Rourke’s tenancy prevailed for five years and substantial sums were awarded in damages under the contract. From the evidence we conclude that the additional award of attorney’s fees was erroneous.

We have not overlooked Batson v. Clark, 980 S.W.2d 566 (Ky.App. 1998), in which this Court correctly noted that attorney’s fees are not ordinarily allowable as costs in the absence of a statute or an express contract provision. However, the Batson Court went on to recognize an indistinct trial court discretion based on equity and particular circumstance. In this case, however, we need not explore the contours of whatever discretion there may be, for the General Assembly has spoken clearly to the issue in KRS 383.570 and KRS 383.660(3). With respect to rental agreements, there can be no attorney’s fees contract provision, for it is forbidden in KRS 383.570. In view of the statutory enactments cited and quoted herein, we see no room for trial court discretion in this arena except as provided in KRS 383.660(3). The limited exception found in KRS 383.660(3) reflects the will of the General Assembly, and we discern no discretionary authority vested in the Court of Justice to go beyond what the Legislature plainly said.

Moreover, for another sound reason the attorney fees claim against O’Rourke must fail. In the complaint, a party must state in plain and adequate terms the basis for any claim. Caldwell v. Frazier, 304 S.W.2d 922 (Ky. 1957). CR 8.01 provides that a claim “shall contain (a) a short and plain statement of the claim showing that the pleader is entitled to relief, and (b) a demand for judgment for the relief to which he deems himself entitled.” Our review of the complaint filed herein reveals that Lexington Real Estate failed to properly plead any claim for attorney’s fees, and certainly no claim under KRS 383.660(3). Although the complaint requested an award of attorney’s fees in the ad damnum clause, it failed to state any claim for attorney’s fees in the body of the complaint. CR 8.01 requires notice of the claim, and O’Rourke was not given notice of any acts or omissions alleged against him that would authorize application of KRS 383.660(3). Although KRS 383.660(3) creates a limited exception to the general rule that each party shall pay its own attorney’s fees, to invoke that exception notice of the claim must be pled to join the issue.    See Pike v. George, 434 S.W.2d 626 (Ky.App. 1968).

916.  LIS PENDENS.  UNJUST ENRICHMENT.
GUERIN (GERALDINE M.)
VS.
FULKERSON (CHARLES)
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
TAYLOR (CONCURS) AND STUMBO (CONCURS)
2010-CA-000330-MR
TO BE PUBLISHED
HART

LAMBERT, SENIOR JUDGE: Geraldine M. Guerin appeals from the Hart Circuit Court’s entry of summary judgment as to her claim of unjust enrichment brought against Appellee Charles Fulkerson. Because Appellant failed to produce evidence that genuine issues of material fact existed as to the merits of this claim, summary judgment was appropriate. Thus, we affirm.

CAUSE OF ACTION.  LIS PENDENS.

Lis pendens is defined as “[a] notice, recorded in the chain of title to real property, ... to warn all persons that certain property is the subject matter of litigation, and that any interests acquired during the pendency of the suit are subject to its outcome.” Greene v. McFarland, 43 S.W.3d 258, 260 (Ky. 2001), quoting BLACK’S LAW DICTIONARY 943 (7th ed. 1999); see also KRS 382.440. “A lis pendens notice is appropriate in situations where the title to property is at stake (actions for partition, quiet title, and will contests, for example), and it serves as notice that the purchaser takes the title subject to the same restrictions as would apply to the seller.” Greene, 43 S.W.3d at 260. Consequently, “in order to invoke the doctrine of lis pendens, it is not sufficient that a property be the source out of which the plaintiff will be compensated. Rather, the property that is described for the purpose of invoking the doctrine must be at the very essence of the controversy between the litigants.” 51 Am.Jur.2d Lis Pendens § 19 (2000) (footnote omitted).

Because of this, “[a]ctions for general debt do not give rise to valid lis pendens actions because there is no actual lien or interest in the real property.”
Greene, 43 S.W.3d at 260.3    This fact is fatal to Appellant’s lis pendens claim since the pending litigation had no direct nexus at all to the real property at issue. Instead, it is obvious that Appellant had nothing more than a general creditor’s claim against Commodore Masterson’s estate. Indeed, she acknowledged in her deposition that the lis pendens notice was based upon her belief that “the property was part of the estate ... and I had a claim against the estate. That’s where that comes from.” Thus, Appellant’s claim against Appellee did not have a direct attachment to the real property itself, and the recording of a lis pendens was inappropriate and ineffective in terms of encumbering a sale of the property to Appellee.4    Id. at 261. Therefore, to the extent that Appellant believes her filed lis pendens notice somehow precluded the entry of summary judgment herein, she is mistaken.

A lis pendens notice also does not independently create a lien against property. Strong v. First Nationwide Mortg. Corp., 959 S.W.2d 785, 787-88 (Ky. App. 1998); Leonard v. Farmers & Traders Bank, Shelbyville, 605 S.W.2d 770, 772 (Ky. App. 1980).

CAUSE OF ACTION.  UNJUST ENRICHMENT.

Appellee was erroneously dismissed via summary judgment. For a party to prevail under the theory of unjust enrichment, she must prove three elements: “(1) benefit conferred upon defendant at plaintiff’s expense; (2) a resulting appreciation of benefit by defendant; and (3) inequitable retention of benefit without payment for its value.” Jones v. Sparks, 297 S.W.3d 73, 78 (Ky. App. 2009); see also Guarantee Electric Co. v. Big Rivers Electric Corp., 669 F.Supp. 1371, 1380–81 (W.D. Ky. 1987).

918.  PROFESSIONAL LEGAL NEGLIGENCE.  WHO IS THE CLIENT?  MINOR, YES.  ESTATE BENEFICIARIES? YES.
ANDERSON (MALIK), ET AL.
VS.
PETE (MICKIEL), ET AL.
OPINION REVERSING AND REMANDING
WINE (PRESIDING JUDGE)
TAYLOR (CONCURS) AND MOORE (CONCURS)
2010-CA-000472-MR
TO BE PUBLISHED
JEFFERSON

WINE, JUDGE: Michael Anderson, Jr. and Malik Anderson, a minor, by and through his guardian and mother, Elizabeth Anderson, appeal from a summary judgment of the Jefferson Circuit Court dismissing their professional negligence claims against the Honorable Mickiel Pete and the law firm of Cochran, Cherry, Givens, Smith, Sistrunk & Sams, P.C. (hereinafter, “Pete”) with prejudice. Upon a review of the record, we reverse the summary judgment.

Our Supreme Court has recently laid to rest any dispute over whether an attorney may have an attorney-client relationship with a minor in the case of Branham v. Stewart, 307 S.W.3d 94, 95 (Ky. 2010). In Branham, the high Court held that an attorney representing a minor’s next friend on behalf of a minor is in an attorney-client relationship with the minor as a real party in interest and owes professional duties to the minor. Id. at 95. The minor is also said to be in privity with the attorney, despite their minority. Id. at 99.
Thus, the question in this case is whether Pete was representing the Estate and Elizabeth personally, as well as next friend of Michael and Malik. Since Pete sought and was granted a protective order from discovery, it is unclear whether there was a written contract in the original client file, and, if so, whether the terms of the contract would have established if Pete was representing the Estate and Elizabeth solely or also as next friend to the children.2    The only facts available at present are Elizabeth’s statements in her affidavit. Elizabeth set out facts in her affidavit establishing that she believed Pete to be representing the children as well. Thus, the only remaining question is whether such a belief was reasonable. In the present circumstances, since Michael and Malik stood to be awarded one-half of any damages recovered in the wrongful death action, it seems quite reasonable that Elizabeth would have believed that Pete was representing the children and raising any and all available claims on their behalf.

As such, we are compelled to reverse the trial court’s summary judgment. It is of little concern for our purposes today that after discovery is allowed to proceed on remand, it may actually appear from documents in the original client file that the Estate and Elizabeth were being represented solely and not as next friend to the children. Summary judgment is not appropriate where a genuine question of material fact exists.

When an attorney is retained to file a wrongful death action by the administrator of an estate, the attorney clearly intends to benefit both the client estate and the individuals in the estate who will receive a share of the damages under KRS 411.130 should he successfully defend the suit. They are two sides of one coin that cannot be logically divided from one another. Indeed, the individuals named in KRS 411.130(2) are the real parties in interest in such a suit. Vaughn’s Adm’r, 179 S.W.2d at 445.

Thus, on remand, even if Pete is found not to be in privity with Michael and Malik because discovery reveals that the parties contracted for him to represent Elizabeth solely and not the children, he will still have owed duties to Michael and Malik as intended beneficiaries of the wrongful death action. Thus, the result is inescapable that Pete owed a duty to Michael and Malik – whether as attorney to client or as attorney to intended beneficiary.

922. REVENUE AND TAXATION.
COMMONWEALTH OF KENTUCKY, FINANCE AND ADMIN. CABINET
VS.
SAINT JOSEPH HEALTH SYSTEM, INC., ET AL.
OPINION REVERSING
LAMBERT (PRESIDING JUDGE)
ACREE (CONCURS) AND WINE (CONCURS)
2010-CA-001086-MR
2010-CA-001159-MR
2010-CA-001181-MR
TO BE PUBLISHED
FAYETTE

LAMBERT, SENIOR JUDGE: In this appeal and two cross-appeals, we are asked to interpret and apply Kentucky’s utility gross receipts license tax (“utility tax”), a mechanism for funding schools authorized by KRS 160.593 and KRS 160.613 et seq., and the exemption for institutions of purely public charity found in Section 1702 of the Kentucky Constitution. Specifically, we are asked to determine whether: (1) the legal incidence of the utility tax levied by the Board of Education of Fayette County (“Board”) falls upon Saint Joseph Health System, Inc. (“Saint Joseph”), a nonprofit hospital corporation, on natural gas it buys from Constellation New Energy – Gas Division, LLC (“Constellation”)3 for two hospitals it operates in Lexington, Kentucky, or upon Constellation, a broker that furnishes natural gas to Saint Joseph; and, (2) if the legal incidence of the utility tax falls upon Saint Joseph, whether it is exempt from paying the levy as an institution of purely public charity.

The genesis of this appeal is an opinion and order entered by the Fayette Circuit Court on May 13, 2010, following argument on Saint Joseph’s motion for summary judgment. The circuit court found: (1) Constellation is not liable for the utility tax because it is not a utility and, (2) natural gas purchased by Saint Joseph from Constellation is subject to imposition of the utility tax because Section 170 exempts public charities only from real property taxes and the utility tax is an excise tax.4    As a result of these findings, the circuit court ordered Saint
Joseph to reimburse5 Constellation for any utility tax it had paid on natural gas it had furnished to Saint Joseph.

On appeal, the Commonwealth of Kentucky Finance and Administration Cabinet, Department of Revenue (“Department”) argues Constellation, as a utility services provider furnishing natural gas to Saint Joseph, is liable for payment of the utility tax authorized by KRS 160.593 and 160.613. The Board filed a cross-appeal echoing the Department’s argument that the circuit court erred in finding Constellation is not a utility and therefore is not exempt from paying the utility tax. Saint Joseph also filed a cross-appeal, but in contrast to the Department and the Board, it challenges the circuit court’s finding that based on Children’s Psychiatric Hospital of Northern Kentucky, Inc. v. Commonwealth of Kentucky Revenue Cabinet, 989 S.W.2d 583, 585 (Ky. 1999), the Section 170 exemption for institutions of purely public charity applies only to the taxation of property. Saint Joseph claims that had the circuit court relied instead upon Marcum v. City of Louisville Municipal Housing Commission, 374 S.W.2d 865, 866 (Ky. 1963) (institution of purely public charity exempt from paying Kentucky use tax on utilities but not sales tax), it would have correctly concluded that an institution of purely public charity, such as Saint Joseph, is exempt from more than
just property taxes. Having considered the briefs, the record and the law, we reverse.

934.  CRIMINAL SENTENCING.
ARNETT (MELISSA)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
CAPERTON (CONCURS) AND KELLER (CONCURS)
2010-CA-001903-MR
TO BE PUBLISHED
BOURBON

LAMBERT, JUDGE: Melissa Arnett entered a conditional guilty plea to one count of first-degree sexual abuse for criminal acts committed against one of her students, receiving an agreed sentence of imprisonment for forty months. She now appeals whether the trial court may probate her sentence.

TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

IF YOU WANT

• WORKERS COMPENSATION LAW UPDATES, I RECOMMEND YOU GO TO THE COMP ED WEB SITE AT http://www.comped.net/.
• FAMILY LAW UPDATES, I RECOMMEND YOU GO TO Diana Skaggs' Divorce Law Journal at http://www.divorcelawjournal.com

920. TORTS.  OUTRAGE.  INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS. RETALIATORY DISCHARGE FOR MAKING WORKERS COMPENSATION CLAIM.
COLLINS (TIMOTHY)
VS.
SAPPHIRE COAL COMPANY, ET AL.
OPINION AFFIRMING
WINE (PRESIDING JUDGE)
LAMBERT (CONCURS) AND NICKELL (CONCURS)
2010-CA-000690-MR
NOT TO BE PUBLISHED
LETCHER

WINE, JUDGE: Timothy Collins appeals from a summary judgment by the Letcher Circuit Court which dismissed his wrongful discharge and intentional infliction of emotional distress claims against Sapphire Coal Company and United Coal Company (“Sapphire”). Collins argues that Sapphire wrongfully fired him because he pursued a civil claim and a workers’ compensation claim against it.

AT WILL EMPLOYEES AND TERMINATION.

However, Sapphire was entitled to discharge Collins for filing the civil claim and he presented no evidence that his discharge was substantially motivated by the filing of his workers’ compensation claim. Collins also argues that his supervisor at Sapphire engaged in a pattern of harassment and intimidation which amounted to intentional infliction of emotional distress. We agree with the trial court that Collins failed to establish that the conduct was outrageous in character or that he suffered severe emotional distress as a result. Hence, we affirm the trial court’s dismissal of both claims.

RETALIATORY DISCHARGE FOR WORKERS COMPENSATION CLAIM.

Collins argues that Sapphire wrongfully discharged him in retaliation for filing civil litigation and the workers’ compensation claim against it. Ordinarily, an employer may discharge an at-will employee for good cause, for no cause, or for a cause that some might view as morally indefensible. Firestone Textile Co. Div., Firestone Tire and Rubber Co. v. Meadows, 666 S.W.2d 730, 731 (Ky. 1983). However, a discharge of an at-will employee may be unlawful if it violates a constitutionally protected right implicit in a statute. Id. at 731.
Sapphire admits that it fired Collins for filing a civil action against it for the damage caused when it undermined his property. As the trial court recognized, an employer has the right to discharge an employee who brings private litigation against the employer seeking damages for an incident not related to his employment unless the discharge is related to a statutory or constitutional provision which explicitly or implicitly creates a public policy exception. Boykins v. Housing Authority of Louisville, 842 S.W.2d 527, 530 (Ky. 1992). Collins maintains that the civil action was related to his employment, but he provides no citations to the record showing how it was related to his employment. Thus, we agree with the trial court that Collins may not maintain a claim for wrongful discharge on this basis.

Collins also contends that Sapphire wrongfully discharged him because he filed several workers’ compensation claims. Kentucky Revised Statute(s) (“KRS”) 342.197(1) prohibits an employer from retaliating against an employee for filing a lawful workers’ compensation claim. See also Firestone, supra, at 731. To establish a cause of action for retaliatory discharge, “it is incumbent on the employee to show at a minimum that he was engaged in a statutorily protected activity, that he was discharged, and that there was a connection between the ‘protected activity’ and the discharge.” Bishop v. Manpower, Inc. of Cent. Kentucky, 211 S.W.3d 71, 76 (Ky. App. 2006), quoting Willoughby v. GenCorp, Inc., 809 S.W.2d 858, 861 (Ky. App. 1990). The employee need not show that retaliation was the sole or even the primary motivating factor for the discharge, but only that retaliation for filing or pursuing a workers' compensation claim was a substantial motivating factor in causing his discharge. Bishop, supra, citing First Property Management Corp. v. Zarebidaki, 867 S.W.2d 185, 188 (Ky. 1993).
As noted above, Collins filed five workers’ compensation claims against Sapphire in 2006 for workplace injuries allegedly occurring on May 9, 2006, June 28, 2006, August 9, 2006, September 12, 2006, and October 21, 2006, respectively. Although the last claim was denied, Collins argues that a fact-finder could reasonably infer that Sapphire fired him in retaliation for filing these claims. Collins further argues that the denial of the October 21, 2006, claim does not preclude a finding that Sapphire retaliated against him for exercising his right to file lawful claims.

Enacting KRS 342.197(1) was to protect persons who are entitled to benefits under the workers' compensation laws and to prevent them from being discharged for taking steps to collect such benefits. Overnite Transp. Co. v. Gaddis, 793 S.W.2d 129, 130 (Ky. App. 1990). Since the statute protects the employee’s right to pursue such benefits, it is not necessary that an employee actually have filed a claim at the time the discharge occurred. Id. at 130-31. See also Bishop, supra, at 77. (Employer began closely scrutinizing employee’s absentee record after employee inquired about workers’ compensation benefits). Likewise, we conclude that the public policy expressed in KRS 342.197(1) protects an employee who has filed a claim for benefits in good faith even if that claim is ultimately denied.

Nevertheless, we agree with the trial court that Collins presented no evidence of a causal relationship between his discharge and his filing of his most recent workers’ compensation claim.

928
BIGGS (DOUGLAS RANDALL) SR.
VS.
BEARD (JAMES), ET AL.
OPINION REVERSING AND REMANDING
DIXON (PRESIDING JUDGE)
MOORE ( CONCURS) AND THOMPSON (DISSENTS BY SEPARATE OPINION)
2010-CA-001529-MR
NOT TO BE PUBLISHED
TAYLOR

DIXON, JUDGE: Appellant Randall Biggs appeals from a judgment of the Taylor Circuit Court, pursuant to a jury verdict, awarding Appellees, James and Marvelle Beard, $82,000. For the reasons set forth herein, we reverse the judgment and remand this matter to the trial court for further proceedings.

ATTORNEY CLIENT AND CONFLICT OF INTEREST. PERCEPTION OF DISLOYALTY.

Randall argues that the trial court erred in refusing to disqualify Spalding based upon the conflict of interest created by his representation of the Beards and Mary Ellen. Randall contends that because the instant action was clearly adverse
to Mary Ellen, his representation of the Beards violated Kentucky Supreme Court Rules (SCR) 3.130(1.7) and 3.130(1.9). Further, Randall claims that the trial court’s and Spalding’s assistance to Mary Ellen during the trial was erroneous. After reviewing the record and video of the trial, we must agree.
SCR 3.130(1.7) states:
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing. The consultation shall include an explanation of the implications of the common representation and the advantages and risks involved.
With respect to former clients, SCR 3.130(1.9) states, in pertinent part:

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
... .
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

There is no dispute that at the time the Beard’s complaint was filed in 2005, Spalding was representing Mary Ellen in her divorce proceedings. Although the divorce was finalized in 2006, various motions were subsequently filed regarding Randall’s failure to pay maintenance. However, it is unclear from the record if any motions or proceedings were pending at the time the instant trial commenced in 2010. Nevertheless, the Beards contend that whether Mary Ellen was a current or former client was irrelevant since Spalding’s conduct did not violate either rule.

In Lovell v. Winchester, 941 S.W.2d 466, 468 (Ky. 1997), our Supreme Court observed that “[t]he lawyer/client relationship can arise not only by contract but also from the conduct of the parties. Courts have found that the relationship is created as a result of the client's reasonable belief or expectation that the lawyer is undertaking the representation. Such a belief is based on the conduct of the parties.” It is abundantly clear from our review of the trial video that Mary Ellen believed Spalding was still her attorney. And, despite the fact that when Spalding was questioned about the apparent conflict at the beginning of trial he was quick to point out that he was not representing her in the instant matter, we are not convinced that she truly understood that fact. Mary Ellen’s conduct during her own testimony was that of a client answering her own attorney’s questions. The Beards even acknowledge that Mary Ellen was their key witness. Ironically, opposing counsel’s objection to Spalding’s leading questions was overruled on the grounds that Mary Ellen was an “adverse” witness.
In their brief to this Court, the Beards contend that even if Mary Ellen was considered Spalding’s client at the time of trial, the matters in which he represented her were wholly unrelated to the case at hand. However, the Commentary to SCR 3.130(1.7) provides, in pertinent part:

(6) Loyalty to a current client prohibits undertaking representation directly adverse to that client without that client's informed consent. Thus, absent consent, a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even when the matters are wholly unrelated.
We find no persuasive evidence that Mary Ellen consented, or even understood, that Spalding was undertaking representation directly adverse to her interests.

We are of the opinion that the situation herein creates a perception of betrayal and disloyalty which cannot be condoned. In so doing, we are not expressing an opinion as to whether Spalding engaged in intentionally egregious conduct. However, regardless of whether this matter fits within the guise of SCR 3.130 (1.7) or (1.9), the goal of maintaining public confidence in our system of justice demands that courts prevent even the appearance of impropriety. In doing so, the client's perception of events is of paramount importance and overshadows the details of his attorney's conduct.

932.  ENFORCING SETTLEMENT.  CLARK V. BURDEN ISSUE AND ATTORNEY AUTHORITY.
PRESCOTT (KEVIN)
VS.
CANNON (ALTON)
OPINION VACATING AND REMANDING
COMBS (PRESIDING JUDGE)
CAPERTON (CONCURS) AND THOMPSON (DISSENTS AND FILES SEPARATE OPINION)
2010-CA-001794-MR
NOT TO BE PUBLISHED
BULLITT

COMBS, JUDGE:    Kevin Prescott appeals an order of the Bullitt Circuit Court granting the motion of Alton Cannon, Administrator De Bonis Non, of the Estate of Robert V. Denk, to enforce a settlement of the parties’ claims. After our review, we vacate and remand for further proceedings.

By its order entered on August 24, 2010, the trial court granted the administrator’s motion to enforce the settlement. The court found that Prescott had given Esmailzadeh express authority to settle the parties’ claims and that the failure to enforce the agreement would have a substantial and adverse effect on the beneficiaries of the Denk estate since the estate would incur the expense of trial preparation for a second time and suffer further delay. This appeal followed.
In his brief to this court, Esmailzadeh continues to represent his client’s interests vigorously. Citing Clark v. Burden, 917 S.W.2d 574 (Ky.1996), Esmailzadeh challenges the trial court’s order to enforce the settlement by contending that he (Esmailzadeh) lacked the authority necessary to settle any claims on his client’s behalf. He contends that the trial court erred by finding authorization where none existed. Esmailzadeh also contends that the trial court erred by finding that the decedent’s estate would be substantially and adversely affected if the settlement were not enforced. The administrator of the decedent’s estate contends that the record supports its position that the settlement is indeed enforceable against Prescott. However, the attorney for the estate candidly acknowledges that Esmailzadeh has been put in an untenable position -- both as advocate for and as witness against his client.
When determining whether to settle a claim, our courts recognize that final decision-making authority rests with a client -- not with his attorney. Clark, 917 S.W.2d at 575. Without his client’s express authority, an attorney generally has no authority to bind his client to a settlement or compromise. Id. at 576. Kentucky’s Rules of Professional Conduct mandatorily direct that an attorney “shall abide by a client’s decision whether to accept an offer of settlement . . . .” Rule[s] of the Supreme Court (SCR) 3.130-1.2(a). (Emphasis added.)
In Clark v. Burden, 917 S.W. at 577, the Supreme Court of Kentucky directed that where a dispute erupts as to whether a client has given settlement authority to his attorney, “the trial court shall summarily decide the facts.” In such a proceeding, the attorney-client privilege will not prevent the attorney from testifying as to the client’s instructions regarding settlement. Id. Whether Prescott gave Esmailzadeh express authority to settle the matter was the critical issue at the court’s hearing. Esmailzadeh’s testimony was material to the interests of both parties and was critical to a resolution of this central issue of authorization. However, SCR 3.130-3.7(a) specifically provides that a “lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness. . . .”1 Comment 5 to SCR 3.130-3.7 indicates that where there is likely to be substantial conflict between the testimony of the client and that of the lawyer, the representation is improper. The comment also provides that the problem can arise whether the lawyer is called as a witness on behalf of the client or is called by the opposing party.

Although our Rules of Professional Conduct indicate that determining whether such a conflict exists is primarily the responsibility of the lawyer involved, courts have an abiding and independent interest in assuring that representation of litigants is not compromised by an improper conflict of interest. Under the circumstances presented here -- where an attorney was required to continue in the representation despite a patent conflict of interest, the integrity of both the court and the attorney was undermined. While neither of the parties on appeal was in a position to have raised the issue of the unadjudicated conflict of interest before this court, the error has grave implications beyond the Bullitt Circuit Court, these attorneys, and these parties. Therefore, we hold that the court erred in failing to enter an order permitting Esmailzadeh to withdraw from the representation.2    We remand for a re-trial on the merits of the case.

The order of the Bullitt Circuit Court enforcing the alleged settlement is vacated. This matter is remanded for further proceedings consistent with our opinion.

935.  TORTS.  INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS VS. FUNERAL DIRECTOR FOR IMPROPER CREMATION.
CHILDERS (BRENDA)
VS.
CANIFF FUNERAL HOME, INC.
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
CLAYTON (CONCURS) AND MOORE (CONCURS)
2010-CA-001944-MR
NOT TO BE PUBLISHED
BOYD

KELLER, JUDGE: Brenda Childers (Childers) appeals from the circuit court's summary judgment in favor of Caniff Funeral Home, Inc. (the Funeral Home). On appeal, Childers argues that genuine issues of material fact exist regarding her claims that the Funeral Home improperly arranged for the cremation of the remains of her mother, Pauline Moore Lemaster (Pauline). The Funeral Home argues that it does not fall within the statute regulating cremation; that it has immunity; and that its actions or inactions did not rise to the level sufficient to support Childers's claim of intentional infliction of emotional distress. Having reviewed the record, we affirm.

Sept. 30, 2011 COA Minutes -- Nos. 874-909 (6 decisions; 10 published)

Sept. 30, 2011 COA Minutes --        Nos. 874-909 (6  decisions; 10 published)

• Click on the above link for the full text of minutes with link to full text of each decision.
• Cick here for AOC page with current minutes and archived minutes links

PUBLISHED DECISIONS OF COA:

875.  GOVERNMENT.  ADMINISTRATIVE LAW.  CERTIFICATE OF NEED.
FLEMING COUNTY HOSPITAL DISTRICT, ET AL.
VS.
FLEMING REGIONAL MEDICAL IMAGING, PLLC, ET AL.
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
CAPERTON (CONCURS) AND LAMBERT (CONCURS)
2009-CA-001275-MR
TO BE PUBLISHED
FRANKLIN

KELLER, JUDGE: Fleming County Hospital District, D/B/A Fleming County Hospital (the Hospital) and the Kentucky Hospital Association (the Association) appeal from the Franklin Circuit Court's finding that Fleming Regional Medical Imaging (Medical Imaging) is exempt from the certificate of need requirements in Kentucky Revised Statutes (KRS) Chapter 216B. For the following reasons, we affirm.

884.  REAL PROPERTY.
BUTLER (DAVID S.)
VS.
JORDAN (NAOMI BUTLER), ET AL.
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
TAYLOR (CONCURS) AND KELLER (CONCURS)
2010-CA-000035-MR
TO BE PUBLISHED
MONROE

LAMBERT, SENIOR JUDGE: David S. Butler appeals from a judgment of the Monroe Circuit Court dismissing his action to set aside a deed on grounds of forgery. The circuit court concluded that his claim was precluded by prior litigation between the parties and was thus barred by res judicata. For reasons that follow, we affirm.

886.  TRIAL.  DIRECTED VERDICT. ERROR ON SUBMITTING DISMISSED PARTY FAULT TO JURY AFTER FAVORABLE DIRECTED VERDICT.
SMITH (SHAWN N.)
VS.
BARGO (CRYSTAL N.)
OPINION REVERSING AND REMANDING
LAMBERT (PRESIDING JUDGE)
CAPERTON (CONCURS) AND THOMPSON (CONCURS)
2010-CA-000241-MR
TO BE PUBLISHED
KNOX

LAMBERT, SENIOR JUDGE: Shawn Smith appeals from a final judgment entered upon a jury verdict assigning him a portion of the liability arising from a motor vehicle accident. Prior to submission of the case to the jury, Smith sought and was granted a directed verdict. On submission, however, the jury found Smith partially at fault for the accident and attributed to him a portion of the liability. The trial court then entered judgment assigning Smith that portion of the liability for those damages. Upon review, we reverse and remand to the Knox Circuit Court for further proceedings consistent with this opinion.

In the instant case as in Investors Heritage, it was error to present the question of Smith’s liability to Bargo to the jury. The trial court had granted Smith’s unopposed motion for a directed verdict as it pertained to Bargo’s claims against him. Although she suggested she intended to later amend her pleading to conform to the facts as presented pursuant to Kentucky Rules of Civil Procedure (CR) 15.02, she presented no new evidence that would require such amendments. Bargo repeatedly offered statements that Smith was not at fault. It was her testimony that caused the trial court to grant Smith’s motion for a directed verdict as it related to her claims against him.

Later in the trial however, Morgan and Caldwell Freight Lines presented evidence that Smith was at fault. That evidence was sufficient to persuade the jury to find that Smith was 75% at fault when he tried to pass the semi-tractor-trailer driven by Morgan. But, the question of Smith’s liability to Bargo had already been decided by the trial court for her failure to present any evidence supporting her claim against Smith. The order of the court granting a motion for a directed verdict is effective without any assent of the jury. CR 50.01.

It was appropriate for the jury to determine Smith’s portion of fault incident to its determination of Morgan and Caldwell Freight’s fault. The error was made when the trial court then adjudged liability for that fault to Smith after he had already been dismissed from the case. The question of Smith’s comparative fault as a defense to the claim against Morgan and Caldwell Freight Lines was properly before the jury. Bargo’s claim against Smith, however, was not in light of the trial court’s directed verdict. That claim had already been resolved.

The judgment of the Knox Circuit Court is reversed and this cause remanded for further consistent proceedings.

888.  TRIAL.  ACCORD AND SATISFACTION.  REQUESTS FOR ADMISSION.
ESTES (JAMES R.), ET AL.
VS.
MCKINNEY (DONALD E.), ET AL.
OPINION AFFIRMING
SHAKE (PRESIDING JUDGE)
MOORE (CONCURS) AND VANMETER (CONCURS)
2010-CA-000576-MR
TO BE PUBLISHED
MCCRACKEN

SHAKE, SENIOR JUDGE: James Estes, Randall Hayden, and Success Management Team, Inc. (collectively referred to as “Success”) appeal from a McCracken Circuit Court summary judgment granted in favor of Donald McKinney and Town & Country Real Estate, Inc. (collectively referred to as “Town & Country”). Success bases its appeal on the following grounds: (1) the trial court inappropriately applied the doctrine of accord of satisfaction; and (2) the trial court failed to make findings of fact regarding Success’s unanswered requests for admissions. After careful reviews of the record and applicable case law, we affirm the McCracken Circuit Court order of summary judgment.

893. CRIMINAL PROCEDURE.
COMMONWEALTH OF KENTUCKY
VS.
PARKER (ROBERT MASON)
OPINION REVERSING
SHAKE (PRESIDING JUDGE)
COMBS (CONCURS AND FILES SEPARATE OPINION) LAMBERT (CONCURS AND JOINS IN JUDGE COMBS'S OPINION)
2010-CA-001215-MR
TO BE PUBLISHED
JEFFERSON

SHAKE, SENIOR JUDGE: The Commonwealth of Kentucky appeals from the March 19, 2010, and May 27, 2010, orders of the Jefferson Circuit Court. Those orders granted defendant Appellee Robert Mason Parker’s motion to suppress certain evidence and denied the Commonwealth’s motion to reconsider, respectively. For the following reasons, we reverse.

899.  CRIMINAL SENTENCING
WILLIAMS (W. C.)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
WINE (PRESIDING JUDGE)
TAYLOR (CONCURS) AND CAPERTON (CONCURS)
2010-CA-001603-MR
TO BE PUBLISHED
MUHLENBERG

WINE, JUDGE: W.C. Williams, pro se, appeals from an order of the Muhlenberg Circuit Court denying his Kentucky Rules of Civil Procedure (CR) 60.02, “Motion to Correct Sentence.” Williams alleges on appeal that the trial court erred in ordering his sentences to run consecutively in Case Nos. 04-CR-00164 and 07-CR- 00059. The question presented to this Court on appeal is whether a subsequent offense that is committed during a period of pre-trial diversion may be considered committed while “awaiting trial” for the purposes of consecutive sentencing under Kentucky Revised Statutes (KRS) 532.060(3).

For the forgoing reasons, the mandates of KRS 533.250(3) apply and Williams’ sentences must run consecutively. Accordingly, we affirm the judgment of the Muhlenberg Circuit Court.

900.  CONSTITUTIONAL LAW.  SCHOOLS. BUSSING AND DESEGREGATION.
FELL (CHRIS), ET AL.
VS.
JEFFERSON COUNTY BOARD OF EDUCATION, ET AL.
OPINION REVERSING AND REMANDING
THOMPSON (PRESIDING JUDGE)
CAPERTON (CONCURS AND FILES SEPARATE OPINION) AND COMBS (DISSENTS AND FILES SEPARATE OPINION)
2010-CA-001830-MR
TO BE PUBLISHED
JEFFERSON

THOMPSON, JUDGE: This is a challenge to the Jefferson County Public School’s (JCPS) student assignment plan filed by thirteen parents after their children received 2010-2011 school year assignments to schools other than schools nearest their homes.1    The issue is narrowly framed: Does the involuntary assignment of a student to a school other than that nearest the student’s home violate Kentucky Revised Statutes (KRS) 159.070? Thus, the resolution of this appeal requires that we construe the language used in that statute which provides:
Each school district shall constitute a separate attendance district unless two (2) or more contiguous school districts, with the approval of the Kentucky Board of Education, unite to form one (1) attendance district. Controversies arising in attendance districts relating to attendance matters shall be submitted to the Kentucky Board of Education for settlement. In case an agreement suitable to all parties cannot be reached, the Kentucky Board of Education may dissolve a united district. In case of dissolution, each school district involved may unite with other contiguous school districts in forming a united attendance district or may act as a separate attendance district. Within the appropriate school district attendance area, parents or legal guardians shall be permitted to enroll their children in the public school nearest their home.
(Emphasis added). We emphasize the final sentence because it is crucial to our decision.
1 After their children were assigned to the school of their choice, four of the parents withdrew from the litigation, leaving nine appellants.

It is beyond the scope of this opinion to write a complete history of school desegregation. However, the parties have cited the history, and a brief synopsis relative to JCPS is helpful to place our discussion in context.

We reiterate that the statute does not require that every child enroll in the school nearest his or her home but only that the parent or legal guardian has a right to enroll the child in a school near his or her home. All children have the freedom, with JCPS’s permission, to enroll in magnet schools and schools other than those located nearest their homes. Our decision does not mandate the abolition of specialized schools including, but not limited to, magnet schools, schools for the gifted, special language programs, and special education programs. That issue is not before this Court and is a matter appropriately addressed when the new plan is developed. On remand, and when submitting its student assignment plan for the 2012-2013 school year, JCPS will have the opportunity to request that specific schools not be included in the statutory mandate because the school serves specialized needs throughout the county. Moreover, JCPS and all school districts retain the discretion to establish attendance areas and implement transportation plans limited only by reasonable compliance with constitutional and statutory law. However, until the legislature declares otherwise, JCPS and all school districts in this Commonwealth must comply with KRS 159.070.
Based on the foregoing, the order of the Jefferson Circuit Court is reversed and the case remanded for proceedings consistent with this opinion.

902.  CRIMINAL PROCEDURE.
VEGA (ERIKA)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
CAPERTON (CONCURS) AND KELLER (CONCURS
2010-CA-001909-DG
TO BE PUBLISHED
FAYETTE

LAMBERT, JUDGE: Erick Vega appeals from the Fayette Circuit Court’s order upholding the Fayette District Court’s denial of his motion to suppress evidence obtained as a result of his arrest for carrying a concealed deadly weapon. Vega argues on appeal that the weapon was not concealed. After careful review of the record, we affirm.

905.  FAMILY LAW - GRANDPARENT VISITATION.
WALKER (MICHELLE)
VS.
BLAIR (DONNA)
OPINION AFFIRMING
CAPERTON (PRESIDING JUDGE)
COMBS (CONCURS) AND THOMPSON (CONCURS)
2010-CA-002228-ME
TO BE PUBLISHED
JEFFERSON

CAPERTON, JUDGE: Michelle Walker (“Michelle”) appeals from the September 10, 2010, order of the Jefferson Family Court which granted grandparent visitation to Donna Blair (“Donna”). Michelle also appeals from the August 16, 2010, order denying her motion to dismiss and the November 8, 2010, order denying her motion to alter, amend, or vacate. Having concluded that the trial court did not err in its grant of visitation, we affirm.

906.  WORKERS' COMP
UNINSURED EMPLOYERS' FUND
VS.
STANFORD (MATTHEW), ET AL.
OPINION AND ORDER AFFIRMING AND DENYING
SHAKE (PRESIDING JUDGE)
DIXON (CONCURS) AND NICKELL (CONCURS)
2010-CA-002288-WC
2011-CA-000075-WC
TO BE PUBLISHED
SHAKE, SENIOR JUDGE: The Uninsured Employers’ Fund (“UEF”) appeals from, and the U.S. Army Cadet Corps., Inc. (“USACC”) cross-appeals from the December 1, 2010, opinion of the Workers’ Compensation Board (“Board”) which affirmed in part, reversed in part, and remanded the Administrative Law Judge’s (ALJ’s) July 12, 2010, opinion, award, and order adjudicating the benefits claim of Matthew Stanford. Because we find no error with the Board’s order, we affirm.

TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

IF YOU WANT

• WORKERS COMPENSATION LAW UPDATES, I RECOMMEND YOU GO TO THE COMP ED WEB SITE AT http://www.comped.net/.
• FAMILY LAW UPDATES, I RECOMMEND YOU GO TO Diana Skaggs' Divorce Law Journal at http://www.divorcelawjournal.com

898. NEGLIGENCE. PROXIMATE CAUSE.  AUTOMOBILE ACCIDENT.
HALL (JAMES)
VS.
MOORE (PHILLIP), ET AL.
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
KELLER (CONCURS) AND MOORE (CONCURS)
2010-CA-001561-MR
NOT TO BE PUBLISHED
FLOYD

CLAYTON, JUDGE: This is an appeal from the Floyd Circuit Court. The Appellant James T. Hall, asserts that the trial court erred in granting summary judgment to the Appellees. For the reasons that follow, we affirm the trial court’s judgment.

The trial court found that Little’s accident was not the proximate cause of Hall’s subsequent accident. Hall argues that Moore’s emergency vehicle would not have been on the mine road but for Little’s accident. In dealing with causation, the Kentucky Supreme Court in Pathways, Inc. v. Hammons, 113 S.W.3d 85, 92 (Ky. 2003), opined,
The court has the duty to determine “whether the evidence as to the facts makes an issue upon which the jury may reasonably differ as to whether the conduct of the defendant has been a substantial factor in causing the harm to the plaintiff.”
-5-
(Citations omitted). In this case, the facts do not create an issue upon which a jury might reasonably differ as to whether Little’s conduct was a substantial factor in causing any harm to Hall.
In order to bring a successful negligence action against Little, Hall would have to establish that Little: (1) owed him a duty of care; (2) breached that duty; and (3) thereby proximately caused Hall’s damages. Illinois Cent. R.R. v. Vincent, 412 S.W.2d 874, 876 (Ky. 1967). In Dixon v. Kentucky Utilities Co., 295 Ky. 32, 174 S.W.2d 19, 21–2 (Ky. App. 1943) (quoting Seith v. Com. Electric Co., 241 Ill. 252, 89 N.E. 425, 427, 24 L.R.A., N.S., 978, 132 Am.St. Rep. 204 (Ill. 1909)), the court explained proximate cause as:
[t]o constitute proximate cause the injury must be the natural and probable consequence of the negligence, and be of such a character as an ordinarily prudent person ought to have foreseen might probably occur as a result of the negligence. It is not necessary that the person guilty of a negligent act or omission might have foreseen the precise form of the injury; but, when it occurs it must appear that it was a natural and probable consequence of his negligence. If the negligence does nothing more than furnish a condition by which the injury is made possible, and that condition causes an injury by the subsequent independent act of a third person, the two are not concurrent, and the existence of the condition is not the proximate cause of the injury. Where the intervening cause is set in operation by the original negligence, such negligence is still the proximate cause, and where the circumstances are such that the injurious consequences might have been foreseen as likely to result from the first negligent act or omission, the act of the third person will not excuse the first wrongdoer. When the act of a third person intervenes, which is not a consequence of the first wrongful act or omission, and which could not have been foreseen by the exercise of reasonable diligence, and without which the injurious consequence could not have happened, the first act or omission is not the proximate cause of the injury. The test is whether the party guilty of the first act or omission might reasonably have anticipated the intervening cause as a natural and probable consequence of his own negligence, and, if so, the connection is not broken; but if the act of a third person, which is the immediate cause of the injury, is such as in the exercise of reasonable diligence would not be anticipated, and the third person is not under the control of the one guilty of the first act or omission, the connection is broken, and the first act or omission is not the proximate cause of the injury.

The trial court was correct in its assessment that Little’s accident was not the proximate cause of Hall’s accident. While the trial court improperly implied that contributory negligence was a part of the basis for its judgment, we find that the trial court was correct in finding Little’s accident was not the proximate cause of Hall’s subsequent accident. Hall’s accident was not the natural and probable results of Little’s accident. Thus, we will affirm the summary judgment entered in favor of Little and Wanda Slone Trucking.

 

Sept. 23, 2011 COA Minutes -- Nos. 843-873 (31 decisions; 6 published)

Sept. 23, 2011 COA Minutes --      Nos. 843-873 (31 decisions; 6 published)

• Click on the above link for the full text of minutes with link to full text of each decision.
• Cick here for AOC page with current minutes and archived minutes links

PUBLISHED DECISIONS OF COA:

843.  CRIMINAL LAW.  PFO
BOYD (DONNA)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
NICKELL (CONCURS) AND LAMBERT (CONCURS IN RESULT ONLY)
2008-CA-001714-MR
TO BE PUBLISHED
FAYETTE

BEFORE: NICKELL AND VANMETER, JUDGES; LAMBERT,1 SENIOR JUDGE.
VANMETER, JUDGE:    Donna Boyd appeals from the Fayette Circuit Court judgment convicting her of criminal possession of a forged instrument in the first degree (two counts), possession of drug paraphernalia, and of being a persistent felony offender (“PFO”) in the second degree. For the following reasons, we affirm.

845.  APPEALS OVER GOVERNMENT IMMUNITY AND INTERLOCUTORY.  MOTION TO DISMISS.
SOUTH WOODFORD WATER DISTRICT
VS.
JOHN C. BYRD
OPINION REVERSING
ACREE (PRESIDING JUDGE)
TAYLOR (CONCURS) AND COMBS (DISSENTS BY SEPARATE OPINION)
2009-CA-000854-MR
TO BE PUBLISHED
WOODFORD

BEFORE: TAYLOR, CHIEF JUDGE; ACREE AND COMBS, JUDGES.
ACREE, JUDGE: South Woodford Water District appeals the Woodford Circuit Court’s order denying its motion to dismiss John C. Byrd’s negligence claim. The water district asserts that the circuit court erred when it rejected its claim of governmental immunity. We find that we have jurisdiction to review this interlocutory order and we further find that the water district is entitled to the protection of governmental immunity. Therefore, and for the following reasons, we reverse the circuit court’s order with instructions to dismiss the case.

In sum, governmental immunity frees government entities named as defendants “from the burdens of defending the action, not merely . . . from liability” – an entitlement that “cannot be vindicated following a final judgment for by then the party claiming immunity has already borne the costs and burdens of defending the action.” Prater, 292 S.W.3d at 886 (internal quotation marks and citation omitted). For that reason, the collateral order doctrine, as articulated in Cohen, as applied in Nixon and Mitchell, and as adapted in Prater, justifies appellate review of interlocutory orders denying motions to dismiss and for summary judgment motions by which common law immunity is claimed.

STANDARD OF REVIEW - CIVIL MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM.

The standards which govern denial of a motion to dismiss, and those governing our review, have been repeated often. They are as follows:
A motion to dismiss for failure to state a claim upon which relief may be granted admits as true the material facts of the complaint. So a court should not grant such a motion unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved. . . . Accordingly, the pleadings should be liberally construed in the light most favorable to the plaintiff, all allegations being taken as true. This exacting standard of review eliminates any need by the trial court to make findings of fact; rather, the question is purely a matter of law. Stated another way, the court must ask if the facts alleged in the complaint can be proved, would the plaintiff be entitled to relief? Since a motion to dismiss for failure to state a claim upon which relief may be granted is a pure question of law, a reviewing court owes no deference to a trial court's determination; instead, an appellate court reviews the issue de novo.
Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010), reh’g denied (Aug. 26, 2010) (citations and quotations omitted).

BEFORE: TAYLOR, CHIEF JUDGE; ACREE AND COMBS, JUDGES.
ACREE, JUDGE: South Woodford Water District appeals the Woodford Circuit Court’s order denying its motion to dismiss John C. Byrd’s negligence claim. The water district asserts that the circuit court erred when it rejected its claim of governmental immunity. We find that we have jurisdiction to review this interlocutory order and we further find that the water district is entitled to the protection of governmental immunity. Therefore, and for the following reasons, we reverse the circuit court’s order with instructions to dismiss the case.

846.  FAMILY LAW. PATERNITY ACTION.  JURISDICTION.
B. (S.)
VS.
C. (M.)
OPINION REVERSING AND REMANDING
LAMBERT (PRESIDING JUDGE)
CLAYTON (CONCURS) AND COMBS (CONCURS)
2009-CA-000966-ME
TO BE PUBLISHED
SCOTT

BEFORE: CLAYTON, COMBS, AND LAMBERT, JUDGES.
LAMBERT, JUDGE: This matter originated in the Scott Family Court when S.B. filed a suit seeking to establish paternity of L.R.C., a minor child born to M.C. This suit was subsequently dismissed by the Scott Family Court for lack of subject matter jurisdiction. Because we believe the Scott Family Court had jurisdiction to determine paternity and custody, we reverse and remand for proceedings consistent with this opinion.

859.  BUSINESS LAW. INJUNTIONS.
BRADLEY (MARILYN KLEE)
VS.
SAMMET (BETH)
OPINION REVERSING
SHAKE (PRESIDING JUDGE)
STUMBO (CONCURS) AND THOMPSON (CONCURS)
2010-CA-000770-MR
TO BE PUBLISHED
OLDHAM

BEFORE: STUMBO AND THOMPSON, JUDGES; SHAKE,1 SENIOR JUDGE.
SHAKE, SENIOR JUDGE: Marilyn Klee Bradley appeals from the February 8, 2010, March 1, 2010, and March 26, 2010, orders of the Oldham Circuit Court. Those orders denied Bradley’s motion for a temporary injunction against Beth Sammet, denied Bradley’s motion for reconsideration, and granted Sammet’s motion for summary judgment, respectively, in Bradley’s action against Sammet for the alleged violation of a noncompetition agreement. Because we hold that the trial court improperly granted summary judgment in favor of Sammet, we reverse.

 

864.  DAMAGES.  Lost corporate compensation.
BUDA (ZACHARY S.)
VS.
SCHULER (MARK J.)
OPINION AFFIRMING
SHAKE (PRESIDING JUDGE)
KELLER (CONCURS) AND LAMBERT (CONCURS)
2010-CA-001087-MR
TO BE PUBLISHED
CAMPBELL

BEFORE: KELLER AND LAMBERT, JUDGES; SHAKE,1 SENIOR JUDGE.
SHAKE, SENIOR JUDGE: Zachary Buda (Buda) appeals from a Campbell Circuit Court summary judgment in favor of Mark Schuler (Schuler). In its judgment, the trial court found that Buda was liable for injuries sustained by Schuler and awarded Schuler damages in the amount of $468,281.14. Buda bases his appeal on two grounds: (1) that there was a material issue of genuine fact concerning his liability; and (2) that the trial court erred by awarding Schuler damages for lost profits to his corporation and punitive damages. Following a careful review of the record and applicable case law, we affirm the circuit court summary judgment.

A. Lost Corporate Compensation
Buda claims that the trial court erred by awarding $50,000 to compensate Schuler for his inability to earn income for Family Chiropractic Center, Inc., a for-profit corporation, solely owned by Schuler. While Schuler received his base salary of $5,000 per month during the time he was unable to work as a result of the injuries inflicted upon him by Buda, he claimed that he was additionally entitled to sums which would have been earned had he been able to work during the time he was recuperating.

Under Kentucky law, corporations are viewed as separate and distinct legal entities. Daniels v. CDB Bell, LLC, 300 S.W.3d 204, 211 (Ky. App. 2009).

That said, whether an injured person may recover damages for the loss of time devoted to their own business depends upon the nature of the business loss. As stated in the Restatement (Second) of Torts, § 924, cmt. c:

When the injured person was not receiving a salary, but owned and was operating a business that was deprived of his services by the injury, his damages are the value of his services in the business during the period. If his services, rather than the capital invested or the services of others, were the predominant factor in producing the profits, evidence of the diminution of profits from the business will be received as bearing on his loss of earning capacity. . . . If, however, the income of the business is chiefly the result of capital invested or the services of others, the damages are determined by the market value of the services that the plaintiff was prevented from giving, that is, the amount commonly paid for the services in businesses of like nature. In this case evidence as to the extent of the business and the nature of his services is admissible, but not evidence as to the amount of profits before and after the loss.
Although Schuler continued to receive some salary, the salary received was a fraction of what the income would have been to the corporation and concomitantly to him. His labor was the sole source of income for his business. Therefore, the trial court correctly concluded that Schuler was entitled to such damages.

Buda argues that Schuler failed to prove the amount of his lost profits with reasonable certainty and failed to plead “special damages” in his complaint. Schuler testified that his corporation has net revenues of $15,000 per month. As the finder of fact, the trial court is vested with the responsibility of weighing and evaluating the credibility of witnesses and the reliability of evidence. Kentucky Rules of Civil Procedure (CR) 52.01. An appellate court will not disturb the trial court’s findings unless those findings are clearly erroneous and unsupported by substantial evidence. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). Substantial evidence is evidence that contains “sufficient probative value to induce conviction in the minds of reasonable men.” Id. (citations omitted). Although Schuler could have presented documentation to support his calculations, the trial court found his testimony to be reliable and sufficient. The court’s findings were based upon sufficient evidence.

Buda also claims that Schuler failed to specifically plead lost profits. However, Schuler’s amended complaint stated, “As a result of the assault and battery, the Plaintiff lost income and lost business from his practice.” The complaint also advised that Schuler intended to seek damages in the amount of $95,000 in lost profits to his business. Buda had ample notice of Schuler’s claims. The trial court did not err in its conclusion.

Punitives.  The record contains significant evidence indicating that Buda viciously attacked Schuler, severely beating him with an object. This conduct constitutes an egregious display of total disregard for the safety of others. Therefore, the trial court’s decision to award punitive damages is supported by the record.

 

865.  JURISDICTION.  AOC TERMINATION OF EMPLOYMENT.
TRAVIS (SHARON)
VS.
ADMINISTRATIVE OFFICE OF THE COURTS
OPINION AFFIRMING
SHAKE (PRESIDING JUDGE)
KELLER (CONCURS) AND LAMBERT (CONCURS)
2010-CA-001165-MR
TO BE PUBLISHED
FRANKLIN

BEFORE: KELLER AND LAMBERT, JUDGES; SHAKE,1 SENIOR JUDGE.
SHAKE, SENIOR JUDGE: Sharon Travis appeals from the May 20, 2010, order of the Franklin Circuit Court dismissing Travis’s wrongful termination action against the Administrative Office of the Courts (“AOC”) for lack of subject matter jurisdiction. We affirm.

TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

IF YOU WANT

• WORKERS COMPENSATION LAW UPDATES, I RECOMMEND YOU GO TO THE COMP ED WEB SITE AT http://www.comped.net/.
• FAMILY LAW UPDATES, I RECOMMEND YOU GO TO Diana Skaggs' Divorce Law Journal at http://www.divorcelawjournal.com

847
CARROLL (ROBERT)
VS.
UNIVERSITY MEDICAL CENTER, INC. , ET AL.
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
MOORE (CONCURS) AND STUMBO (DISSENTS AND FILES SEPARATE OPINION)
2009-CA-001116-MR
2009-CA-001211-MR
NOT TO BE PUBLISHED
JEFFERSON

KELLER, JUDGE: Robert Carroll (Carroll) appeals from a jury verdict and judgment in favor of University Medical Center (UMC) and Emily Chan, M.D. (Dr. Chan). UMC cross-appeals from the trial court's denial of its pre-trial motion for partial summary judgment.
On appeal, Carroll argues that the trial court erred when it would not permit him to introduce certain medical literature or evidence that UMC violated accreditation standards. He also argues that the court improperly permitted UMC to use exhibits and to call a witness when neither had been identified or disclosed prior to trial. Finally, Carroll argues that the trial court prevented him from playing portions of testimony during his closing argument, which fatally hindered his ability to argue his theory of the case.

On cross-appeal, UMC contends that it could not be held liable for the actions of a physician who had been dismissed by summary judgment. Therefore, according to UMC, the trial court erred when it failed to grant summary judgment to it on that issue.

Having reviewed the record, the briefs, and the arguments of the parties, we affirm the jury verdict and the trial court's judgment. Because we affirm, we do not address UMC's cross-appeal.

1. Exclusion of Medical Literature
This avowal testimony by Dr. Camazine goes primarily to the issue of standard of care, not to the issue of causation. Furthermore, Dr. Camazine admitted that the first article did nothing to add to his opinion. Dr. Camazine stated that the second article would "be of benefit" in establishing and formulating his opinion as to causation; however, he did not state that the article was key to his opinion or how it would have been useful. Nor did he state how the information in that article differed from any other articles he had reviewed. These articles appear to be duplicative and, because they primarily appear to address the standard of care, the appellees' argument that they would confuse the jury is well taken. Therefore, we discern no abuse of discretion by the trial court in excluding testimony regarding these two articles.

2. Exclusion of JCAHO Guidelines
Carroll argues that the trial court erred by excluding evidence about the JCAHO standards. JCAHO is a national organization that surveys and accredits hospitals and health care organizations on a voluntary basis, and provides national standards for patient care. According to Carroll, under JCAHO standards, UMC was required to: (1) ensure that his surgeon, a resident, was supervised by an attending surgeon; (2) inform him of the identity of his surgeon(s); (3) ensure that the attending physician was "immediately available" during surgery; and (4) adequately plan for the surgery.  Carroll's experts did not identify the JCAHO standards as a basis for their opinions in their discovery responses or in their discovery depositions. In the absence of any evidence that Carroll's experts relied on, or even reviewed, the JCAHO standards, the court properly granted the Appellees' motion to exclude them. Finally, we note that Carroll's argument as to causation was that he was kept in the lithotomy position for too long. There is no evidence that, had UMC complied with the JCAHO standards, the surgery would have taken less time. Therefore, UMC's non-compliance with the standards was of little relevance and would only have served to confuse the jury.

4. Introduction of Undisclosed Exhibits

Carroll argues that the trial court erred by permitting Dr. Chan and UMC to introduce photographs of the operating room and surgical equipment that had not been identified in mandatory pre-trial disclosures. According to Carroll, he was unduly prejudiced by the surprise introduction of these photographs. The Appellees note that Carroll did not object to their use of the photographs during their opening statements and did not object to their use of the photographs during trial. In fact, as noted by the Appellees, Carroll used some of the photographs during trial. Furthermore, Carroll asked the Appellees if the parties should move to introduce the photographs as a group exhibit. The Appellees did not agree; however, Dr. Chan subsequently moved for admission of the photographs, and Carroll did not object.
The Court of Appeals is without authority to review issues not objected to and not ruled on by the trial court. Fischer v. Fischer, 197 S.W.3d 98, 102 (Ky. 2006). Because Carroll did not object, we cannot address the issue he raises on appeal regarding the introduction of the photographs. Furthermore, based on Carroll's use of the photographs and his suggestion that they be introduced as a group exhibit, his argument that the photographs unduly prejudiced him is disingenuous at best.

5. Testimony from Undisclosed Witness
On November 25, 2008, after the close of evidence for the day, counsel for UMC advised the parties that she would be calling Dr. McMasters the next day. Counsel for Carroll indicated that he had not previously heard of Dr. McMasters and counsel for UMC stated that she had listed “a representative from the University of Louisville School of Medicine residency program” in UMC’s witness list. No further discussion of substance took place that day. After hearing arguments of counsel and after admittedly struggling with the issue, the court ruled that UMC could call Dr. McMasters as a witness. Dr. McMasters, the head of the residency program and a physician at University Surgical Associates, testified regarding the relationship between UMC and the School of Medicine. According to Dr. McMasters, UMC and the School of Medicine are separate entities. Dr. McMasters testified that resident surgeons, who are in post-medical school training, are employed by the School of Medicine and receive their training at UMC. Residents are supervised by attending surgeons, who are employed by the School of Medicine and/or University Surgical Associates. The residency program is operated through the School of Medicine and policies related to the residency program are developed and implemented by the School of Medicine, not UMC.
Dr. McMasters testified that, prior to undertaking surgery; a resident should consult with an attending surgeon. The attending surgeon may, depending on the type of surgery, simply consult, either in person or over the telephone, or may assist the resident with the surgery.
Carroll argues that, because he had not had the opportunity to depose Dr. McMasters, he was significantly prejudiced by Dr. McMasters’s testimony. Having reviewed Dr. McMasters's testimony, we discern no significant prejudice. In fact, Dr. McMasters’s testimony did not differ significantly from Dr. Cheadle’s testimony, which Carroll presented. At its worst, Dr. McMasters’s testimony was cumulative of Dr. Cheadle’s and its admission by the trial court was not an abuse of discretion.

6. Restrictions on Closing Argument
Finally, Carroll argues that the trial court improperly restricted his ability to argue his theory of the case during his closing. The trial court is vested with wide discretion in controlling the scope and nature of closing argument. Hawkins, 17 S.W.3d at 120. Carroll maintains that he should have been permitted to argue to the jury that: an attending physician was unavailable to perform Carroll's surgery; he should have been permitted to play portions of the testimony for the jury; and the jury should have heard that important information was lost when UMC was unable to produce medical records regarding Carroll's care in the post-anesthesia care unit. We address each issue in turn below.

STUMBO, JUDGE, DISSENTING: I respectfully dissent from the majority on two issues. First, I would hold that the circuit court improperly excluded Carroll’s usage of post-2003 literature. While the circuit court correctly determined that post-2003 literature could not be introduced for the purpose of demonstrating the standard of care as it existed in 2003, UMC and Dr. Chan opened the door to the introduction of post-2003 literature for other purposes by arguing that the extended use of the lithotomy position could not have caused Carroll’s hypotension and resultant loss of his lower left leg. The defense argued both in opening argument and by way of its inquiry of expert witness Dr. Camazine that Dr. Chan’s extended usage of the lithotomy position could not have proximately resulted in the loss of Carroll’s leg, and they sought to attribute Carroll’s post-operative hypotension to his then undiagnosed peripheral vascular disease. By barring Carroll from introducing post-2003 literature on the issue of causation, Carroll was prevented from effectively rebutting the defense assertion that the lithotomy position was not the cause of Carroll’s post-operative hypotension and resultant amputation. Additionally, I am also persuaded that the jury could be admonished on remand to consider the standard of care as it existed in 2003, and that any literature published after 2003 could be considered only as it related to the issue of whether the extended use of the lithotomy position causes hypotension in the legs. I would reverse on this issue.
I would also hold that the circuit court erred in allowing Dr. McMasters to testify at trial. Dr. McMasters was not identified in UMC’s pre-trial compliance nor identified as a witness in discovery. Carroll contends that he had never heard of Dr. McMasters until the evening before McMasters took the stand, when UMC stated that it would be calling him the next day.

863. FELA.
NEISZ (WAYNE)
VS.
CSX TRANSPORTATION, INC.
OPINION AFFIRMING
COMBS (PRESIDING JUDGE)
LAMBERT (CONCURS) AND SHAKE (CONCURS)
2010-CA-000935-MR
NOT TO BE PUBLISHED
JEFFERSON

October 2011 SCOKY Oral Arguments

October 2011 SCOKY Oral Arguments

Click on above link for this month's argument calendar.

Click here for table of all monthly calendars at AOC from 2005 to date.

Appellate briefs are posted at the Northern Kentucky University, Salmon P. Chase College of Law ( Click here). 

If the briefs have been filed at NKU at the time of this post, then they are linked here.  If the briefs were not available on line, THEN  Click here and enter the Supreme Court, Month, and year to pull of the results for the briefs filed in the month you need to search (or the link for those "accepted for oral argument.")

For Kentucky Supreme Court LIVE arguments, click here on date and time of argument.

The issues, dates, times, lower court/judge, counsel, AND links to full text of briefs and  COA decision are below!  The actual calendars are on line at AOC - Click here.

WEDNESDAY, OCTOBER 19, 2011
9:00 a.m. HASHMI, M.D. V. KELLY, ETC. (2009-SC-843-DG)
"Medical Malpractice. Expert Witnesses. Witness Disclosure. Issues include the admissibility of expert witness testimony by the defendant where the plaintiff  took expert’s deposition but defendant failed to disclose his intent to utilize deposition as expert testimony."

Discretionary Review granted 12/08/2010
Madison Circuit Court, Judge William T. Jennings
For Movant: Steven Glenn Kinkel and John Christian Lewis
For Respondent: Kenneth L. Sales, Paul Jason Kelley, and David G. Bryant

Appellant's Brief

Appellee's Brief

Appellant's Reply Brief

10:00 a.m. MAYNES V. COMMONWEALTH OF KENTUCKY (2010-SC-681-DG)
"Criminal Law. Indigent or Needy Person. Court Costs. The issue is whether the trial court can order a defendant, previously found to be indigent, to pay court costs as part of defendant's final sentencing."

Discretionary Review granted 3/16/2011
Jefferson Circuit Court, Judge Audra Jean Eckerle
For Movant: Bruce P. Hackett
For Respondent: James Hays Lawson

Appellant's Brief

Appellee's Brief

Appellant's Reply Brief

11:00 a.m. SCHNUERLE, ET AL. V. INSIGHT COMMUNICATIONS COMPANY, L.P., ET AL. (2008-SC-789-DG) AND (CROSS-MOTION) INSIGHT COMMUNICATIONS COMPANY, L.P., ET AL. V. SCHNUERLE, ET AL. (2009-SC-390-DG)
"Contracts. Arbitration. Issues include the validity of mandatory dispute resolution contract clauses barring consumer class actions."

Discretionary Review granted 6/17/2009 and 8/19/2009
Jefferson Circuit Court, Judge A. C. McKay Chauvin
For Movants: H. Philip Grossman, Jennifer Ann Moore, Leslie A. Bailey, Frank Paul Bland, Jr., and Melanie Hirsch
For Respondents: Laurence John Zielke, Nancy Jane Schook, Janice M. Theriot and David N. Hise

Appellant's Brief

Appellee's Brief

Appellant's Reply Brief

Appellant's Reply Brief

Appellee's Reply Brief

Appellee's Supplemental Brief

Amicus Curiae Brief

Amicus Curiae Brief

Amicus Curiae Brief

Amicus Curiae Brief

THURSDAY, OCTOBER 20, 2011
9:00 a.m. DAUGHERTY (NOW BUCHER) V. TELEK (2011-SC-43-DGE)
"Emergency Protective Orders. Domestic Violence Orders. Time for Hearing. The issue is whether statutory time frames involve general subject matter jurisdiction, which cannot be waived, or are jurisdictional aspects of the particular case, which can be waived by a party."

Discretionary Review granted 3/16/2011
Kenton Circuit Court, Judge Christopher J. Mehling
For Movant: Dina Abby Bartlett and Michael Joseph Jurek
For Respondent: Carl Edwin Knochelmann, Jr.

Appellant's Brief

Appellee's Brief

Appellant's Reply Brief

Amicus Curiae Brief

10:00 a.m. DOTSON V. COMMONWEALTH OF KENTUCKY (2010-SC-222-DG)
"Criminal Law. Post-Conviction. RCr 11.42. The issue is whether a defendant who has served out his sentence prior to the lower courts’ adjudication of his post-conviction claim can proceed with his case or are the issues moot thus meriting a dismissal of the claims. The Court has been invited to re-examine its ruling in Parrish v. Commonwealth, 283 S.W.3d 675 (Ky. 2009)"

Discretionary Review granted 1/14/2011
Pike Circuit Court, Judge Steven D. Combs
For Movant: Meggan Elizabeth Smith
For Respondent: Perry Thomas Ryan

Appellant's Brief

Appellee's Brief

Appellant's Reply Brief

11:00 a.m. CONNIE HANCOCK, FLOYD COUNTY PROPERTY VALUATION ADMINISTRATOR, ET AL. V. PRESTONSBURG INDUSTRIAL CORPORATION, ET AL. (2010-SC-376-DG)
"Charitable Organizations. Tax Exemptions. The issue is whether Prestonsburg Industrial Corporation (“PIC”) is a charitable organization under Kentucky Constitution § 170 and thus exempt from ad valorem taxes."

Discretionary Review granted 3/16/2011
Floyd Circuit Court, Judge Danny P. Caudill
For Movants: Douglas M. Dowell and Dwight Stacy Marshall
For Respondents: Richard E. Fitzpatrick, Thomas M. Smith and
Martin L. Osborne

Appellant's Brief

Appellee's Brief

Appellant's Reply Brief

FRIDAY, OCTOBER 21, 2011
NO ORAL ARGUMENTS

June 2011 SCOKY MONTHLY CASE SUMMARY REPORT

Published Opinions Kentucky Supreme Court June 2011

The case summary report is created by the staff of the Supreme Court of Kentucky for the convenience of the bench and bar.  Every effort is made to present accurate information, including status of the case, as of the date of posting.  The most recent status for cases can be found on the Supreme Court, Court of Appeals, or other legal research websites.  Before citing any case, the user should always read the entire opinion and ensure that the case is final.  CR 76.28.

• January 2011
• Febrary 2011 - none
• March 2011
• April 2011
• May 2011
• June 2011

I. Criminal Law

A. William Harry Meece V. Commonwealth of Kentucky

2006-SC-000881-MR June 16, 2011

Death Penalty. Three counts of murder, two counts first degree robbery, and two counts of first degree burglary. Forty-five issues, with sub-issues. Defendant’s post-guilty plea statements were admissible, as they were voluntarily made and not made in the course of plea negotiations.

B. Brian Keith Moore v. Commonwealth of Kentucky

2008-SC-000925-MR June 16, 2011

2008-SC-000957-MR June 16, 2011

2008-SC-000860-MR June 16, 2011

Opinion of the Court by Justice Noble Affirming in Part, Reversing in Part and Remanding. Minton, C.J., and Abramson and Venters, JJ., concur. Cunningham, Scott, and Schroder, JJ., concur in part and dissent in party by separate opinion. Moore was convicted of a 1979 murder and robbery, and sentenced to death. Almost 30 years later, he moved the trial court for post-conviction DNA testing under KRS 422.285. The trial court allowed some testing at the state police lab, but declined a request for further testing at an outside, private lab, claiming it was barred by the statute. Moore also collaterally attacked his conviction on the grounds that the state had lost evidence which might have held exculpatory DNA evidence, and that another person’s DNA had been found on some of the remaining evidence. He also asked for a hearing to decide whether the state had acted in bad faith in losing the evidence. The Commonwealth cross-appealed, claiming that the trial court erred in ordering testing in light of the evidence and that Moore’s claim should be barred by laches.

The Supreme Court affirmed the trial court except as to its holding that outside testing was not allowed. The Court held instead that KRS 422.285 gives trial courts broad discretion to enter orders they deem “appropriate,” which includes ordering testing by an outside lab. The Court did not require the trial court to order the outside testing on remand, however, leaving that decision in the hands of the lower court if supported by the evidence that Moore might offer. The Court also held that the loss of evidence and the presence of another person’s DNA were insufficient to require reversal, and that no hearing on the state’s alleged

bad faith was required. The Court also held that the trial court did not err in ordering DNA testing under the statute, and that laches could not bar Moore’s claim because the statute allows motion “at any time.” The dissenters would have affirmed the trial court’s denial of outside testing, albeit on different grounds, namely, that any outside DNA testing, while allowed by the statute, would ultimately prove fruitless, making any error harmless.

C. Jason Lee Mullikan v. Commonwealth of Kentucky

2009-SC-000519-MR June 16, 2011

Opinion of the Court by Justice Cunningham. All sitting. The court held: (1) that convictions for first-degree wanton endangerment and third-degree terroristic threatening does not constitute a double jeopardy violation because each conviction requires proof of a fact the other conviction does not; (2) that the trial court did not abuse its discretion in denying Appellant’s request for DNA testing and fingerprinting of a water bottle because such testing was not reasonably necessary for Appellant’s defense and was unlikely to result in relevant evidence that outweighed prejudicial effect; (3) that the trial court did not abuse its discretion in requiring both the defense and prosecution to remain seated while questioning witnesses because it has the inherent authority to control trial proceedings and specific authority under KRE 611(a) to control the mode of interrogation of witnesses; (4) that no palpable error arose from witnesses’ brief references to Appellant’s prior incarceration and trial because the references were directly elicited by Appellant himself and they were likely of little effect in the trial; (5) that Appellant was not entitled to a directed verdict on third-degree assault charge because the jury could have reasonably concluded Appellant attempted to cause physical injury by spitting on the officer; (6) that omission from jury instruction on third-degree assault of element of knowledge that officer was acting within official capacity was harmless because Appellant testified he knew who the officer was; (7) that the trial court properly denied Appellant’s request for a jury instruction on choice of evils defense because there was insufficient evidence of threat of imminent injury; (8) that the trial court properly refused to give Appellant’s tendered instruction on mistake of fact because the elements of the charged offense could have been satisfied even with the alleged mistake of fact; and (9) that testimony in the penalty phase describing facts and circumstances underlying Appellant’s prior convictions was unduly prejudicial and merits new penalty phase because the testimony went beyond the scope of “nature of prior offenses,” under KRS 532.055(2)(a). Chief Justice Minton concurred by separate opinion. Justice Scott concurred in part and dissented in part by separate opinion.

D. Adam Anthony Barker v. Commonwealth of Kentucky

2009-SC-000794-MR June 16, 2011

Opinion of the Court by Justice Cunningham. All sitting; all concur. Appellant appealed from trial court judgment convicting him of second-degree manslaughter and two counts of tampering with physical evidence, sentencing him to an aggregate term of twenty years’ imprisonment. Supreme Court reversed the manslaughter conviction but affirmed the other convictions and remanded for further proceedings. Supreme Court held that the jury instruction on the provocation qualification to self-protection misplaced the intent requirement onto the victims, constituting palpable error where Appellant’s intent was a contested issue at trial.

E. Nathan McDaniel Jr. v. Commonwealth of Kentucky

2009-SC-000443-MR June 16, 2011

Opinion of the Court by Justice Scott. All sitting. Minton, C.J.; Abramson, Noble, Schroder, and Venters, JJ., concur. Cunningham, J., dissents by separate opinion. During jury selection, two jurors provided equivocal responses when asked whether they could be fair and impartial in their deliberations. Appellant’s challenge for cause as to each juror was denied. The Supreme Court reversed, holding that the trial court abused its discretion when it denied Appellant’s motion to strike the jurors for cause. The Supreme Court addressed the remaining issues only to the extent that they were likely to recur remand.

II. Negligent Supervision

A. Dianne Turner v. Brooke Nelson, et al.

2010-SC-000356-DG June 16, 2011

Opinion of the Court by Justice Scott. All sitting; all concur. This case arose from alleged incidents of inappropriate touching between two five-year old children. Rather than report these incidents to authorities, the kindergarten teacher here separated the children and explained why such touching was inappropriate. The Supreme Court reinstated the summary judgment originally granted by the trial court in favor of the teacher because the teacher’s duties (and decision making) were discretionary in nature, thereby entitling her to the defense of qualified official immunity. Importantly, the Supreme Court considered her duties to be discretionary primarily because the mandatory reporting obligation of KRS 620.030(1) did not apply in this case.

III. Product’s Liability

A. Giddings & Lewis, Inc. et al. v. Industrial Risk Insurers et al.

2009-SC-000485-DG June 16, 2011

2009-SC-000825-DG June 16, 2011

Opinion by Justice Abramson, affirming in part, reversing in part. All sitting; all concur.

The Court affirms in part and reverses in part the opinion of the Court of Appeals, rendering final the trial court's grant of summary judgment to Giddings & Lewis, the manufacturer.

Appellee Ingersoll Rand purchased from Appellant Giddings & Lewis, Inc. a Diffuser Cell System (System), which consisted of several components designed to perform separate functions. After seven years of operation, the System malfunctioned, damaging the entire System. Giddings & Lewis rebuilt the System and Ingersoll Rand's insurer, Industrial Risk Insurers, paid $2,798,742.00 for repairs, overtime pay and related expenses.

Industrial Risk Insurers sued Giddings & Lewis to recover the amount paid, claiming breach of implied warranty, breach of contract, negligence, strict liability, negligent misrepresentation and fraud by omission. The trial court granted summary judgment to Giddings & Lewis, holding the insurers’ implied warranty claim was barred by the statute of limitations and, further, the economic loss rule barred the tort claims, including those for fraud and negligent misrepresentation. The trial court also declined to adopt the “calamitous event” exception to the economic loss rule and held the components of the System constituted one product. The Court of Appeals affirmed the adoption of the economic loss rule and agreed the calamitous event exception should be rejected, but held the economic loss rule did not bar the negligent misrepresentation and fraud claims. The Court of Appeals also found the question of whether the components of the System constituted one product was a question of fact for the jury.

The "economic loss rule" prevents the commercial purchaser of a product from suing in tort to recover for economic losses arising from the malfunction of the product itself, recognizing that such damages must be recovered, if at all, pursuant to contract law. Faced squarely with a classic case for application of the economic loss rule, the Court held for the first time that, in Kentucky, the economic loss rule applies to negligence, strict liability and negligent misrepresentation claims arising from a defective product sold in a commercial transaction, and that the relevant product is the entire item bargained for by the parties and placed in the stream of commerce by the manufacturer. Further, the economic loss rule applies regardless of whether the product fails over a period of time or destroys itself in a calamitous event, and the rule's application is not limited to negligence and strict liability claims but also encompasses negligent misrepresentation claims. The Court did not decide the impact of the economic loss rule on

fraud claims because the plaintiffs’ fraud by omission claim was unsustainable on the record, irrespective of the economic loss rule.

IV. WORKERS’ COMPENSATION

A. Anthony Traugott v. Virginia Transportation

2010-SC-000696-WC June 16, 2011

Opinion of the Court. All sitting; all concur. Traugott was a Kentucky resident whose work required him to travel throughout the lower 48 states, spending a majority of his time in no one state. His employer was headquartered in Rhode Island and had no Kentucky office. He sought workers’ compensation benefits in Kentucky for an injury that occurred while he was working in Missouri. The ALJ dismissed the claim, having found that Kentucky lacked extraterritorial jurisdiction under KRS 342.670(1) and (5) because Traugott’s employment was not principally localized in Kentucky and his contract for hire was not made in Kentucky. The ALJ reasoned with respect to the latter finding that Traugott offered his services to the defendant by telephone from his home in Kentucky; received and returned an employment application by fax; and was advised by telephone from Rhode Island that he was accepted if he completed certain requirements. Final acceptance occurred in Rhode Island where he did so. The Workers’ Compensation Board and Court of Appeals affirmed, with the court noting that no evidence showed the defendant’s acceptance to be contingent upon Traugott’s completing certain tasks in Rhode Island. Also affirming, the Supreme Court determined that substantial evidence supported the legal conclusion that the contract for hire was made in Rhode Island. The contract was formed when the defendant accepted Traugott’s offer of his services for hire by telephone in Rhode Island. No evidence compelled the parties’ roles to be viewed differently.

V. ATTORNEY DISCIPLINE

A. Roger P. Elliott v. Kentucky Bar Association

2011-SC-000205-KB June 16, 2011

Roger P. Elliott moved the Court to impose a two-year suspension with one year probated and one year to serve, subject to conditions, for his violation of then SCR 3.130-8.3(b)(now SCR 3.130-8.4(b)). The Court opined that the sanction was appropriate and imposed it.

October 2011 COA Argument Calendar

Click here for entire calendar for this month at AOC.

Click here for entire INDEX to COA calendars organized by month and year.

LOCATION: WHITLEY COUNTY COURTHOUSE, 200 MAIN STREET,
WILLIAMSBURG, KENTUCKY
DATE: Wednesday, October 12, 2011

9:30 am
THOMAS D. RIFFE v MELISSA L. RIFFE
Whether circuit court erred by ordering maintenance; whether child custody determination was proper.

10:15 am
CHRIS ROSS v BRANDY ROSS
Whether circuit court properly modified child custody.

LOCATION: WHITLEY COUNTY COURTHOUSE, 200 MAIN STREET,
WILLIAMSBURG, KENTUCKY
DATE: Wednesday, October 12, 2011

11:00 am
DAVID DUNAWAY v COMMONWEALTH OF KENTUCKY
Whether circuit court properly denied appellant’s RCr 11.42 motion.

LOCATION: COURT OF APPEALS COURTROOM, 360 DEMOCRAT DRIVE,
FRANKFORT, KENTUCKY
DATE: Wednesday, October 19, 2011

2:15 am
FREDRICK CLARKE v RIVERSIDE PAVING AND CONTRACTING, INC.
Whether circuit court erred by finding that appellee did not suffer discrimination or retaliatory discharge in the work place.

3:00 pm
ASIA BUCALO v COMMONWEALTH OF KENTUCKY
Appeal from an order denying Appellant’s motion to suppress evidence taken following a traffic stop. Appellant alleges that her detention was illegally extended so that a K-9 unit could sniff her car and that police lacked probable cause for the search. Appellant entered a conditional guilty plea to a variety of drug-related offenses.

LOCATION: JEFFERSON COUNTY JUDICIAL CENTER, 10TH FLOOR APPELLATE
COURTROOM, 700 WEST JEFFERSON STREET, LOUISVILLE,
DATE: Tuesday, October 25, 2011

11:00 am
THE NEW LEXINGTON CLINIC v GREGORY COOPER
MOR appeal from a grant of summary judgment by circuit court in action to recover damages for violation of fiduciary duties by director and other employees of medical clinic committed when director set up competing medical clinic staffed with employees of appellant. Issues are whether trial court erred in holding that Provisions of KRS 281B .8-300 have supplanted the common law actions for breach of fiduciary duty and whether appellant has a cause of action for tortious interference of contract.

11:45 am
BRANDON TRUE v FATH BLUEGRASS MANOR APARTMENT
Appeal from summary judgment in landlord-tenant dispute wherein injuries were sustained due to a fall through a defective balcony railing. Appellant urges review in light of the recent Supreme Court decision in Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010). Appellant argues that the landlord had a duty to repair the balcony carefully and prudently and, therefore, rendering a jury question.

LOCATION: JEFFERSON COUNTY JUDICIAL CENTER, 10TH FLOOR APPELLATE
COURTROOM, 700 WEST JEFFERSON STREET, LOUISVILLE,
DATE: Wednesday, October 26, 2011

10:00 am
CHRISTINE GOSS v COMMONWEALTH OF KENTUCKY
Appellant was convicted of identity theft and argues that the trial court erred by not directing a verdict for insufficient evidence.

LOCATION: JEFFERSON COUNTY JUDICIAL CENTER, 10TH FLOOR APPELLATE
COURTROOM, 700 WEST JEFFERSON STREET, LOUISVILLE,
DATE: Thursday, October 27, 2011

10:45 am
VIRGIN MOBILE USA, L.P. v COMMONWEALTH OF KENTUCKY ON BEHALF OF
KRS 65.7621-exemption and remitting on universal service charge on cell phone connections.

11:30 am
CARL LANORE v DEBORAH LANORE
Carl appeals from an order striking the entry of appearance by his counsel and issuing against him in dissolution proceedings.

1:30 pm
SHEILA ALTENSTADTER v FIBREWORKS CORPORATION
Altenstadter appeals from a summary judgment dismissing her hostile work environment claims against Fireworks Corp. Sufficiency of prima facie case.