Kentucky Court Report - SCOKY & COAKY

CIVIL PROCEDURE - Mootness: Lexington-Fayette Urban County Government v. LEXHL, LP (COA 11/13/2009)

Lexington-Fayette Urban County Government v. LEXHL, LP
2008-CA-002145 11/13/09 2009 WL 3786630

Opinion by Judge Wine; Judges Stumbo and Thompson concurred.
The Court affirmed a summary judgment entered in favor of the appellee newspaper on the appellant county government’s declaratory judgment action seeking a declaration that the litigation exception to the Open Meetings Act allowed it to close council meetings in order to answer requests for information propounded by administrative agencies. The Court held that the trial court correctly concluded that the matter was moot because the underlying action was no longer pending before the agency. Given the unique and specific nature of the controversy, the county government did not show that a similarly-situated party would be subject to the same action again or even that the precise factual scenario could be duplicated so as to show the issue was capable of repetition, yet evading review, in order to meet the exception to the mootness doctrine.

CIVIL PROCEDURE, Board of Claims SOL: Nelson County Board of Education v. Forte (COA 10/9/2009)

Nelson County Board of Education v. Forte

2008-CA-001958 10/09/09 2009 WL 3231646 DR Pending

Opinion by Judge Taylor; Chief Judge Combs and Judge Nickell concurred. The Court affirmed an order of the circuit court which vacated and remanded an order of the Board of Claims dismissing an action as time barred under KRS 44.110(1). The Court held that the circuit court properly vacated and remanded. The term “court” as used in KRS 413.270(1) included the Board of Claims and therefore, the tolling provision of KRS 413.270(1) was applicable to an action filed in the Board of Claims.

CIVIL PROCEDURE, CR 60.20 Motion: Goldsmith v. Fifth Third Bank (COA 10/30/2009)

Goldsmith v. Fifth Third Bank
2008-CA-001414 10/30/09 2009 WL 3486696

Opinion by Judge Wine; Judges Acree and Stumbo concurred.

The Court vacated and remanded an order of the circuit court granting appellant CR 60.02 relief and all orders of the court entered thereafter and remanded with instruction to the trial court to reinstate an in rem summary judgment and order of sale. The Court held that CR 60.02 relief should not have been granted as a matter of law in the case because appellant expressly waived his right to a guardian ad litem under CR 17.04. Further, CR 60.02 relief was inappropriate because the alleged errors could have been raised in a direct appeal. The Court finally held that the CR 60.20 motion was untimely and therefore, the trial court was without jurisdiction to grant it. The claim was one of “excusable neglect” rather than an extraordinary circumstance and therefore, the one-year time limitation found in CR 60.02(a), (b), and (c) was applicable. Although appellant also claimed to be proceeding under CR 60.02(d) and (e), he was unable to prove fraud on the part of appellee. Because the trial court erroneously invoked the post-judgment relief of CR 60.02, it had no jurisdiction to proceed and therefore, all order of the court following the order setting aside the original judgment and order of sale were void.

Civil Procedure - Statute of limitiations (SOL), tolling, deception: Tim Emberton v. GMRI Inc. (d/b/a Red Lobster Restaurant #349) (SC 10/29/2009)

Tim Emberton v. GMRI Inc. (d/b/a Red Lobster Restaurant #349)
2007-SC-000443-DG October 29, 2009
2008-SC-000109-DG October 29, 2009
Opinion by Justice Scott; all sitting.

Emberton sued GMRI after he contracted the hepatitis A virus at one of its Red Lobster restaurants. Following trial, the jury awarded Emberton $8666 in medical expenses, plus $225,000 for pain and suffering. The Court of Appeals reversed on the grounds that Emberton’s suit was barred by the one-year statute of limitations. The Court of Appeals ruled Emberton “failed to investigate the source of his illness when reasonable diligence could have revealed the likely tortfeasor within the statutory period.”

The Supreme Court reversed and reinstated the jury’s award, holding that the statute of limitations on Emberton’s claim was tolled under KRS 413.190(2) since GMRI, through its district manager, engaged in conduct that was “intentionally deceptive and designed to prevent public disclosure of [the GMRI employee’s] infection though the health department, the restaurant’s employees and its patrons.” The Court rejected GMRI’s challenge to the constitutionality of KRS 360.040—which establishes Kentucky’s post-judgment interest rate. The Court also ruled against GMRI’s appeals of evidentiary issues, the pain and suffering award and its claim of an inconsistent verdict at trial.

Chief Justice Minton and Justice Abramson concurred in result only.

Civil Procedure - Lack of prosecution, dismissal, discovery: Brian Jaroszewski & Amy Page-Jaroszewski v. Charles F. Flege & Karen Jaroszewski (SC 10/29/2009)

Brian Jaroszewski & Amy Page-Jaroszewski v. Charles F. Flege & Karen Jaroszewski
2008-SC-000112-DG October 29, 2009
Opinion by Chief Justice Minton; all sitting.

Plaintiffs in a tort action appealed the trial court’s grant of defendant’s motion to dismiss for lack of prosecution (CR 41.02). The Court of Appeals remanded the case back to the trial court to reconsider the motion in light of the factors set forth in Ward (1: extent of party’s personal responsibility for the delay; 2: history of dilatoriness; 3: whether attorney’s conduct is willful or in bad faith; 4: merits of plaintiff’s claim; 5: lack of availability of alternative sanctions). On remand, the trial court again granted dismissal; the Court of Appeals affirmed.

The Supreme Court affirmed, holding that when considering motions to dismiss for lack of prosecution, trial courts must consider the totality of the circumstances, not just the factors listed in Ward, and must make an explicit finding of fact.

The Court declined to create a formula to be applied mechanically in all cases. Rather, the Court opted to fashion guidelines for trial courts based on Ward and others circumstances surrounding the case. The Court reviewed the Ward factors as they applied to this dispute, and considered the other relevant factors before affirming. Justice Venters concurred by separate opinion, contending that trial courts should also consider whether the party moving for dismissal has taken steps towards resolving the case prior to moving to dismiss— likening the situation to where criminal defendants must assert their right to a speedy trial before claiming it has been violated.

CIVIL PROCEDURE - Statute of Limitations (SOL) tolled by conduct of defendant: Tim Emberton v. GMRI Inc. (d/b/a Red Lobster Restaurant #349), et al. (SC 10/29/2009)

Tim Emberton v. GMRI Inc. (d/b/a Red Lobster Restaurant #349), et al.
2007-SC-000443-DG October 29, 2009
2008-SC-000109-DG October 29, 2009
Opinion by Justice Scott; all sitting.

Emberton sued GMRI after he contracted the hepatitis A virus at one of its Red Lobster restaurants. Following trial, the jury awarded Emberton $8666 in medical expenses, plus $225,000 for pain and suffering. The Court of Appeals reversed on the grounds that Emberton’s suit was barred by the one-year statute of limitations. The Court of Appeals ruled Emberton “failed to investigate the source of his illness when reasonable diligence could have revealed the likely tortfeasor within the statutory period.” The Supreme Court reversed and reinstated the jury’s award, holding that the statute of limitations on Emberton’s claim was tolled under KRS 413.190(2) since GMRI, through its district manager, engaged in conduct that was “intentionally deceptive and designed to prevent public disclosure of [the GMRI employee’s] infection though the health department, the restaurant’s employees and its patrons.” The Court rejected GMRI’s challenge to the constitutionality of KRS 360.040—which establishes Kentucky’s post-judgment interest rate. The Court also ruled against GMRI’s appeals of evidentiary issues, the pain and suffering award and its claim of an inconsistent verdict at trial.

Chief Justice Minton and Justice Abramson concurred in result only.

CIVIL PROCEDURE - Dismiss for lack of prosecution: Brian Jaroszewski & Amy Page-Jaroszewski v. Charles F. Flege & Karen Jaroszewski (SC 10/29/2009)

Brian Jaroszewski & Amy Page-Jaroszewski v. Charles F. Flege & Karen Jaroszewski
2008-SC-000112-DG October 29, 2009
Opinion by Chief Justice Minton; all sitting.

Plaintiffs in a tort action appealed the trial court’s grant of defendant’s motion to dismiss for lack of prosecution (CR 41.02). The Court of Appeals remanded the case back to the trial court to reconsider the motion in light of the factors set forth in Ward (1: extent of party’s personal responsibility for the delay; 2: history of dilatoriness; 3: whether attorney’s conduct is willful or in bad faith; 4: merits of plaintiff’s claim; 5: lack of availability of alternative sanctions). On remand, the trial court again granted dismissal; the Court of Appeals affirmed. The Supreme Court affirmed, holding that when considering motions to dismiss for lack of prosecution, trial courts must consider the totality of the circumstances, not just the factors listed in Ward, and must make an explicit finding of fact. The Court declined to create a formula to be applied mechanically in all cases. Rather, the Court opted to fashion guidelines for trial courts based on Ward and others circumstances surrounding the case. The Court reviewed the Ward factors as they applied to this dispute, and considered the other relevant factors before affirming. Justice Venters concurred by separate opinion, contending that trial courts should also consider whether the party moving for dismissal has taken steps towards resolving the case prior to moving to dismiss— likening the situation to where criminal defendants must assert their right to a speedy trial before claiming it has been violated.

WILLS & ESTATES - Failure to join indispensable party, claim for funeral expenses: Rice v. Steele (C OA 9/18/2009)

Rice v. Steele
2008-CA-000308 9/18/09 2009 WL 2971596

Opinion by Judge Lambert; Judge Acree and Senior Judge Harris concurred. The Court dismissed appellant’s appeal from an order dismissing her claims against her mother’s estate and vacated in part and remanded a partial summary judgment in favor of appellant on her claim for restitution for her mother’s funeral expenses.

The Court granted appellee’s motion to dismiss the appeal for appellant’s failure to join her siblings. The siblings were named defendants in the court below. Therefore, in their individual capacities, they were indispensable and naming the estate alone was fatal. The Court then held that the trial court erred in granting partial summary judgment to appellant on the claim of restitution for funeral expenses when the motion for summary judgment failed to name and serve the siblings.

TORTS - Punitive damages, impeachment by employment of witness, pain and sufferering prior to death, voir dire, juror signing verdict: Fuel Transport, Inc. v. Gibson (COA 9/25/2009)

Fuel Transport, Inc. v. Gibson
2008-CA-000969 9/25/09 2009 WL 3047578 Rehearing pending

Opinion by Judge Clayton; Judge Thompson and Senior Judge Lambert concurred. The Court affirmed in part and reversed in part a judgment of the circuit court entered subsequent to a jury verdict in favor of an estate in a wrongful death case awarding compensatory and punitive damages.

The Court first held that the trial court did not abuse its discretion in denying a motion for a new trial based on a claim of juror misconduct. During voir dire, appellants failed to ask a proper question to elicit a response they complained was prejudicially omitted by the juror. Further, the juror did not sign the verdict form awarding compensatory damages. The Court next held that, although appellant failed to exercise reasonable care in failing to fix the coal truck that caused the accident, the failure did not rise to the level of wanton or reckless disregard for others so as to prove the gross negligence necessary for an award of punitive damages. Therefore, the trial court erred in overruling appellant’s motion for a directed verdict on the issues of punitive damages. The Court next held that the trial court properly admitted an affidavit regarding the ownership of the coal truck and the employment of the driver, as it affected the credibility of a key witness. The Court next held that appellants waived the right to challenge the award for pain and suffering when they failed to object to the $2 million limit on possible recovery. Even so, the award was supported by evidence that the deceased had intervals of consciousness until her death. The court then held that appellants’ failure to object to jury instruction until immediately prior to the reading of the instructions to the jury, and failure to request an instruction limitation for “conscious” pain and suffering, waived the issue. The Court finally held that the trial court properly denied appellants’ requests for change of venue.

TORTS - TP Negligence claim and workers comp injury, experts, impaired earning capacity, discovery sanctions: Boland-Maloney Lumber Company, Inc. v. Burnett (COA 9/11/2009)

Boland-Maloney Lumber Company, Inc. v. Burnett
2008-CA-000059 9/11/09 2009 WL 2901206 DR pending

Opinion by Judge Wine; Judges Acree and Stumbo concurred. The Court affirmed on direct appeal and reversed on cross-appeal a judgment of the circuit court entered subsequent to a jury verdict in favor of the injured person in a negligence action involving an injury occurring on a staircase.

The Court first held that the trial court did not abuse its discretion in allowing the matter to proceed to the jury absent expert testimony on the defendant’s duty. The uniformity of stair risers on a stairway is an abundantly apparent standard, even among laypersons, so that anyone could interpret the exceptional foreseeability of risk. The Court then held that the trial court did not err in refusing to allow any apportionment of fault to a subcontractor. The right to apportionment did not extend to the subcontractor that had been determined not to be liable as a matter of law. The Court then held that the trial court had the inherent authority to enforce its orders and therefore, did not err in refusing to grant a motion to allow expert testimony when the defendant failed to disclose the experts after an order was entered that no additional discovery would be allowed. The Court then held that the trial court did not abuse its discretion in allowing testimony from an economic expert concerning the injured person’s earning capacity. Although the testimony was not based on actual earnings at the time of injury, nothing precluded testimony on the impairment to earn money or the use of a “proxy” to do so, where current earnings were not indicative of earning power. The Court then held that the trial court did not err in allowing testimony in violation of an order that the plaintiff’s witnesses could not testify that the stairs violated the Kentucky Building Code. The defendant waived the issue when it failed to object to the testimony at trial, defendant’s counsel brought up the reference to the Kentucky Building Code, and the testimony was not in violation of the order. The Court then held that the defendant’s failure to specifically object to the final written instructions precluded review but even so, although the present case was not a premises liability case, the use of the term “unreasonably dangerous” was often found instructed in cases other than products liability when dealing with an ordinary care standard so that the trial court did not abuse its discretion in including the instruction. The Court finally held that the trial court erred in excluding evidence related to plaintiff’s claim for future prescription medication expenses. Although there was no expert testimony as to the amount of medication required or the likely cost of the medication over the remainder of the plaintiff’s lifetime, the plaintiff entered the yearly cost of the prescription drugs by avowal and the doctors testified that the plaintiff suffered from a seizure disorder which would likely require him to take medication for the remainder of his life. The Court reversed and remanded for a determination on the sole issue of future prescription medication expenses.