Kentucky Court Report - SCOKY & COAKY

STDS of REVIEW: Appellate review of jury instructions in civil case

1165.  CIVIL PROCEDURE (DIRECTED VERDICT). INSTRUCTIONS. PAIN, SUFFERING, INCONVENIENCE.
FERGUSON (BARBARA)
VS.
UNDERTOW TRUCKING, INC
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
ACREE (CONCURS) AND WINE (CONCURS)
2011-CA-000064-MR
NOT TO BE PUBLISHED
JOHNSON
12/22/2011 COA

With regard to the review of jury instructions, any errors in jury instructions are considered as questions of law and are reviewed by this Court de novo. Hamilton v. CSX Transportation, Inc., 208 S.W.3d 272, 275 (Ky. App. 2006).

CIVIL (INJUNCTION): The Courier-Journal, Inc.; Lexington Herald-Leader Co.; & Associated Press v. Leonard Lawson; Commonwealth of Kentucky (SC 3/18/2010)

The Courier-Journal, Inc.; Lexington Herald-Leader Co.; & Associated Press v. Leonard Lawson; Commonwealth of Kentucky
2009-SC-000756-I March 18, 2010 Opinion by Chief Justice Minton. All sitting; all concur.

Movants filed for CR 65.07 relief in the Court of Appeals from a temporary injunction issued by the circuit court which forbade the release of a proffer of evidence made by Respondent Lawson in 1983. The Supreme Court held that the Office of the Attorney General—as custodian of the record sought—was an indispensable party to the action, and must be named as a party by the Movants. The Court declined to reach the merits of the dispute and affirmed the dismissal of the petition by the Court of Appeals.

CIVIL (INTERNET DOMAINS): Commonwealth of Kentucky, ex rel. J. Michael Brown, Secretary, Justice & Public Safety Cabinet v. Interactive Media Entertainment & Gaming Assn., Inc., et al. (SC 3/18/2010)

Commonwealth of Kentucky, ex rel. J. Michael Brown, Secretary, Justice & Public Safety Cabinet v. Interactive Media Entertainment & Gaming Assn., Inc., et al.
2009-SC-000043-MR March 18, 2010 Opinion by Justice Noble. All sitting; all concur.

Petitioners filed for a writ from the Court of Appeals to stop Commonwealth from seizing the Internet domain names of gambling websites. The Court of Appeals granted the writ after concluding that the circuit court was acting outside its jurisdiction. The Supreme Court reversed the Court of Appeals, holding petitioners lacked standing to challenge the forfeiture. Some of the counsel for petitioners claimed to represent the domain names themselves. The Court held that in in rem litigation such as this, only those with an interest in the property have an interest in the litigation. Since the property can have no interest in itself, it had no interest in contesting the forfeiture.

Furthermore, the Court held that two gaming trade associations who purported to represent the remaining petitioners also lacked standing. The Court noted that these trade associations have standing only if its members could have sued in their own right. Since neither trade association would identify which domain name registrants it claimed to represent, the Court held the associations could not meet their burden of showing they had standing. The Court declined to reach the merits of the case and remanded to the Court of Appeals with instructions to dismiss the petition for a writ.

GARNISHMENT: Brooks v. Lexington-Fayette Urban County Housing Authority (COA 11/13/2009)

Brooks v. Lexington-Fayette Urban County Housing Authority
2008-CA-001677 11/13/09 2009 WL 3786367

Opinion by Judge Nickell; Judges Keller and Moore concurred.

The Court affirmed orders of the circuit court granting appellee’s costs and expenses incurred in the successful bid to quash enforcement of a non-wage garnishment and denying appellant’s request for attorney fees.

The Court first held that the trial court did not err in granting legal fees to appellee for amounts incurred in challenging the enforcement of the non-wage garnishment. Appellant’s reliance on the law of the case doctrine was misplaced. The record and the earlier published opinions rendered in the matter did not hold that the Housing Authority was not a state agency and in light of precedent, the Housing Authority, created under KRS Chapter 80, enjoyed the status of a state agency. Therefore, the trial court correctly found that it was not subject to levy or execution by garnishment.

The Court then held that the trial court did not abuse its discretion in awarding the Housing Authority its reasonable attorney fees pursuant to CR 54.04 and KRS 411.080.
The Court finally held that the trial court did not err in denying appellant’s request for additional attorney fees for her attempt to enforce the judgment through non-wage garnishment as CR 54.04 and KRS 344.450 only allowed for awarding attorney fees to the prevailing party.

Attorneys Fees, Class Action: Bonar v. Waite, Schneider, Bayless & Chesley Co., L.P.A. (COA 10/16/2009)

Bonar v. Waite, Schneider, Bayless & Chesley Co., L.P.A.
2007-CA-001374 10/16/09 2009 WL 3336065 Rehearing Pending
Opinion by Judge Dixon; Judge Nickell and Senior Judge Knopf concurred.

The Court affirmed a judgment of the circuit court ruling that the appellant attorney was not entitled to any attorney’s fees from a class action lawsuit involving child sexual abuse against the Roman Catholic Diocese of Covington. The Court ultimately held that the trial court properly denied the request for attorney’s fees. In reaching that conclusion the Court first held that the trial court did not err in denying appellant’s motion for partial summary judgment. The denial was not interlocutory and not reviewable on appeal. Further, appellant could not have been prejudiced because she was provided the right to establish the merits of her position during trial. The Court next held that the trial court did not err in dismissing appellant’s individual claims against two class attorneys. Appellant entered into an agreed order specifying that the firm was the proper defendant, there was no merit to appellant’s claim that she was forced to enter the agreed order, and she waived the issue upon the signing of the agreed order and the filing of an amended complaint. The Court next held that the trial court properly limited appellant’s access to discovery as to other class actions and practices regarding fee splitting and opting out class members as the information did not have any correlation to whether appellant was entitled to a fee. The Court next held that the trial court did not abuse its discretion in prohibiting testimony regarding other counsels’ fee arrangements that had no relevance to whether appellant was entitled to a fee or if so, how much. The Court next held that the trial court properly excluded appellant’s expert evidence when appellant failed to show that the retired former judge possessed any specialized knowledge that would assist the trial court, since the trial court did not need guidance on the ultimate issues to be decided. The Court next held that appellant was not denied a fair trial as the trial court’s comments regarding her ethical violations could not improperly influence the same court during the bench trial. The Court next held that there was no merit to the claim that the trial court erred by entering orders that were inconsistent with prior court rulings. First, the issue was unpreserved as appellant failed to raise it in her prehearing statement as required by CR 76.03(8). Further, the prior judge in the case did not enter an order on the record that could be construed the law of the case. The Court next held that the trial court did not err in relying on Baker v. Shapero, 203 S.W.3d 697 (Ky. 2006), in addressing the proper measure for the allowance of a fee. Because the trial court concluded that appellant voluntarily withdrew from the case due to a conflict of interest, the appropriate method of determining what compensation she was owed was based on quantum meruit. Even if appellant could prove that she had a binding fee agreement, it could not be enforced when she voluntarily withdrew in the initial stages of the case. The Court next held that the trial court’s findings with respect to appellant’s ethical violations were based upon substantial evidence in the record that she violated SCR 3.130(1.3), (1.7), (1.9), and (1.16).

TORTS - FELA, SOL, judicial admissions: Zapp v. CSX Transportation, Inc. (COA 9/25/2009)

Zapp v. CSX Transportation, Inc.
2008-CA-001362 9/25/09 2009 WL 3047630 Rehearing pending

Opinion by Judge Taylor; Chief Judge Combs and Judge Nickell concurred. The Court reversed and remanded an order of the circuit court granting a motion for directed verdict for an employer on an employee’s claim under the Federal Employers’ Liability Act (FELA).

The circuit court found that the claim was barred by the statute of limitations. The Court held that the circuit court erred by deeming the employee’s testimony a judicial admission and by usurping the prerogative of the jury to decide a disputed issue of fact - when the statue of limitations was triggered. While the employee testified that his hand symptoms worsened while working in 1999, the circuit court erroneously inferred that the employee knew or should have known that the injury was caused by work duties in 1999.

CIVIL - SOL for claims against gov't employees is one year even if mva: Wagoner v. Bradley (CPA 9/4/2009)

Wagoner v. Bradley
2008-CA-001179 9/4/09 2009 WL 2835122 Released for pub.

Opinion by Judge Lambert; Judge Stumbo and Senior Judge Henry concurred. The Court affirmed an order of the circuit court dismissing appellant’s complaint related to a single-car accident in which she claimed that the appellees negligently erected a stop sign.

The Court held that the trial court did not incorrectly apply the one-year statue of limitations in KRS 44.110(1) and that the Motor Vehicle Reparations Act (MVRA) did not extend the one-year statute of limitations. The Court further held that the same statute of limitations applied to the Commonwealth and its employees, regardless of whether the alleged negligence involved discretionary or ministerial acts.

GOVERNMENT IMMUNITY - Gov't vs. proprietar function re housing provided to mainentance person working for school board: Breathitt County Board of Education v. Dot Prater (SC 8/27/2009)

Breathitt County Board of Education v. Dot Prater
2008-SC-000041-DG August 27, 2009
Opinion by Justice Abramson; all sitting.

As part of her compensation for providing security and maintenance services at an elementary school, the school board allowed an employee to live in a house located on school grounds. Prater was visiting the employee at the house when she suffered a permanent injury. Prater sued the school board, alleging negligence in the maintenance of the house. The board moved for dismissal, claiming it was absolutely immune from damage claims brought in court. The trial court denied the motion on the grounds that the board’s maintenance of the house served a proprietary function rather than a governmental function.

The Supreme Court noted that denials of motions to dismiss are typically not final and thus not subject to appellate review. However, since immunity is meant to shield its possessor not just from liability, but from the costs and burdens of litigation as well, a denial of immunity is subject to interlocutory appeal. The Court also concluded that the board’s furnishing of a residence was a governmental function because it furthered the board’s educational mission and was thus within the scope of governmental immunity.

Justice Venters dissented, taking the position that “maintaining the personal, private house for the use of a school maintenance worker and her social guests has nothing to do with the school district’s educational mission.”

TAXATION - Federal Telecommunications Act preempting local tax: Directv, Inc. and Echostar Satellite, LLC v. Commissioner, Dept. of Revenue (SC 6.25.2009)

Directv, Inc. and Echostar Satellite, LLC v. Commissioner, Dept. of Revenue and Frankfort Independent School District
2007-SC-000714-DG June 25, 2009
Opinion by Justice Abramson. All sitting; all concur.

Direct broadcast satellite (DBS) television providers brought an action seeking to have KRS 160.140, which imposes a gross receipts tax declared preempted under the federal Telecommunications Act of 1996. The circuit court awarded summary judgment to the DBS providers. The Court of Appeals reversed, holding that because the tax was levied to fund schools, it was, in effect, a state tax, not local, and thus was not preempted by the Act. The Supreme Court reversed the Court of Appeals and reinstated the circuit court’s summary judgment in favor of the DBS providers. The Court held that the tax was of the type expressly prohibited by the Act because the taxes were imposed on a district-by-district basis. The Court noted that the Act’s legislative history buttressed this conclusion.

BUSINESS LAW / SOL - Adverse domination and tolling of shareholder suits against directors; equitable tolling: John R. Wilson, Trustee for Franklin Career Services, LLC v. David B. Paine & John Newton (SC 6/25/2009)

John R. Wilson, Trustee for Franklin Career Services, LLC v. David B. Paine & John Newton
2008-SC-000905-CL June 25, 2009
Opinion by Justice Cunningham. All sitting; all concur.

The U.S. Bankruptcy Court for the Western District of Ky. certified the following question to the Kentucky Supreme Court: Does the equitable doctrine of adverse domination apply to toll the statute of limitation on lawsuits against corporate directors for unlawful distributions (KRS 271B.8-330)? The Court answered this question in the affirmative. The doctrine of adverse domination provides that a cause of action by a corporate plaintiff against the board of directors will be tolled during the period that the corporation is under the control of wrongdoers.

Equitable tolling is based upon a lack of knowledge of an injury. Accordingly, a corporate plaintiff cannot be deemed to have knowledge until such time that the individuals who control the corporation are aware of the injury and are willing to act upon the knowledge. The Court adopted the “disinterested majority” test for adverse domination, wherein the plaintiff is required to show that a majority (not all) of the board members engaged in intentional wrongdoing (not mere negligence) in order to toll the statute of limitation.