Kentucky Court Report - SCOKY & COAKY

COA 2010 Minutes: January 15, 2010 (Nos. 19-48)

COA 2010 Minutes: January 15, 2010 (Nos. 19-48)

• 30 decisions
• 4 published

Published Decisions with digest and link to full text decision at AOC:

21
MEDICAL NEGLIGENCE - SPONGE, NEG PER SE VS RES IPSA LOQUITOR
BAXTER VS. FINE
OPINION AFFIRMING
** ** ** ** ** BEFORE: ACREE, CAPERTON, AND KELLER, JUDGES.

KELLER, JUDGE: Secily Baxter (Baxter) appeals the judgment of the Fayette Circuit Court which dismissed her medical malpractice action against Joseph G. Fine, M.D. (Dr. Fine), after the jury found that Dr. Fine was not negligent in failing to remove a surgical sponge from Baxter’s abdomen following her appendectomy. Specifically, Baxter contends that the trial court erred: (1) when it denied her motions for summary judgment and directed verdict under the doctrine of negligence per se or the doctrine of res ipsa loquitur; (2) when it failed to instruct the jury on the doctrine of res ipsa loquitur; and (3) when it granted partial summary judgment precluding the estate of Joshua Baxter (Joshua) from bringing a cause of action for wrongful death pursuant to Kentucky Revised Statute (KRS) 411.130. For the reasons set forth below, we affirm.


22
CRIMINAL - SENTENCING - DUI
COMMONWEALTH VS. LAMBERSON
OPINION REVERSING AND REMANDING

** ** ** ** ** BEFORE: ACREE AND NICKELL, JUDGES; KNOPF,1 SENIOR JUDGE.
NICKELL, JUDGE:    The Commonwealth brings this interlocutory appeal to determine whether Bryan Lamberson’s 2000 conviction for operating a motor vehicle under the influence of intoxicants (DUI), first offense, may be used to enhance a 2004 charge of DUI, fourth offense.2    The question arises because Lamberson was in a Missouri residential treatment facility when his attorney entered a guilty plea for him in the Bullitt District Court on the 2000 charge. Both parties agree Lamberson was not present when the guilty plea was accepted and entered by the Bullitt District Court and he never executed the written waiver of appearance required by RCr3 8.28(4) when a plea is taken in absentia for an offense subject to enhancement, such as DUI. While conceding noncompliance with RCr 8.28(4), the Commonwealth argues the 2000 conviction for DUI, first offense, remains viable for enhancement purposes because Lamberson twice, without objection, allowed the Commonwealth to use that same conviction to enhance his 2001 conviction for DUI, second offense, and his 2002 conviction for DUI, third offense. Thus, the Commonwealth contends Lamberson’s current challenge is too late and the trial court erred in suppressing the 2000 conviction for DUI, first offense, for enhancement purposes. Having reviewed the evidence, the trial court’s rulings, and the law, we reverse the Jefferson Circuit Court’s pretrial order suppressing use of Lamberson’s 2000 conviction for enhancement purposes and remand the matter to the trial court for further proceedings.


24
WHISTLEBLOWER
NORTHERN KENTUCKY AREA PLANNING COMMISSION VS. CLOYD
OPINION AFFIRMING IN PART AND REVERSING IN PART
** ** ** ** **
BEFORE: ACREE AND LAMBERT, JUDGES; HARRIS,1 SENIOR JUDGE. ACREE, JUDGE: Appellants, Northern Kentucky Area Planning Commission
(Commission) and Dennis Gordon appeal from two orders of the Kenton Circuit Court which combine to deny their motion for summary judgment in its entirety. We affirm in part and reverse in part.

27
FAMILY LAW
GERTLER VS. GERTLER
OPINION AFFIRMING
** ** ** ** ** BEFORE: ACREE AND LAMBERT, JUDGES; HARRIS,1 SENIOR JUDGE.
ACREE, JUDGE: Chad Gertler appeals from a dissolution decree entered by the Casey Circuit Court. He challenges two of the circuit court’s rulings: (1) the classification of certain gifts to the parties as marital, and (2) the award of sole custody of the parties’ children to their mother, Joann Gertler. We affirm.

COA 2010 Minutes: January 8, 2010 (Nos. 1-18)

COA 2010 Minutes: January 8, 2010 (Nos. 1-18)

• 18 decisions
• 4 published

Published Decisions with digest and link to full text decision at AOC:

1
TORTS - BANKING - FIDUCIARY DUTIES
CAUDILL VS. SALYERSVILLE NATIONAL BANK
OPINION AFFIRMING
** ** ** ** ** BEFORE: CAPERTON, THOMPSON AND WINE, JUDGES.
THOMPSON, JUDGE: Bobbie Caudill, Administratrix of Arnett Gertrude’s estate, filed this action against Salyersville National Bank, alleging that the Bank aided and assisted Jack Scriber, acting under the authority of a power of attorney and as an authorized signatory on Gertrude’s personal checking account, to convert $414,000 in funds held by the Bank. The Bank defended on the basis that Scriber was an authorized signatory on Gertrude’s account and that Scriber presented a valid and enforceable power of attorney which authorized him to cash the certificates of deposit. A jury trial was commenced and, after hearing the evidence presented on behalf of the estate, the trial court granted the Bank’s motion for a directed verdict holding that the signature card and the power of attorney precluded any action against the Bank. ***

The definition of bad faith as used in the context of banking transactions was articulated in Taylor v. Citizens Bank of Albany, 290 Ky. 149, 160 S.W.2d 639 (1942). Bad faith “does not necessarily involve furtive or evil motives, but has a commercial sense of disregard of and refusal to learn the facts when available; and that the circumstances and conditions may be so cogent and obvious that to remain passive amounts to bad faith.” Id. at 641. * * *

In summary, there was no evidence that the Bank acted in bad faith or with knowledge that Scriber breached his fiduciary duty when it conducted the financial transactions concerning Gertrude’s account. It acted pursuant to a valid power of attorney and Consumer Account Agreement. Although the estate is critical of Gertrude’s decision to authorize Scriber’s general authority to access her financial affairs, the Bank was not obligated to look beyond the language of the power of attorney to determine the extent of the power. Parton v. Robinson, 574 S.W.2d 679 (Ky.App. 1978). We reiterate the view expressed in Pulliam v. Pulliam, 738 S.W.2d 846, 848 (Ky.App. 1987), that a bank has no duty to meddle into the affairs of its account holders and echo the federal court’s observation in Long v. Watkins, 271 F.Supp. 630, 634-635 (D.C. Ky. 1967), as to the responsibility of a bank regarding the financial decision of its depositors, including the appointment of a fiduciary:
A depositor has a right to rely upon the bank for the security of deposits entrusted to it. * * *

The liability for the conversion of the funds, if any, rests with Scriber and Cisco, not the Bank.
affirmed.

2
CRIMINAL
STONE VS. COMMONWEALTH
APPEAL FROM CAMPBELL CIRCUIT COURT   HONORABLE FRED A. STINE, V, JUDGE
OPINION AFFIRMING
** ** ** ** ** BEFORE: STUMBO, THOMPSON, AND WINE, JUDGES.
WINE, JUDGE: Randy Stone (“Stone”) appeals his conviction and sentence in the Campbell Circuit Court for attempted unlawful transaction with a minor. On appeal, he raises several allegations of error: (1) that he was entitled to a directed verdict because the Commonwealth failed to prove an essential element of the charged offense; (2) that the trial court erred by failing to grant his motion for a mistrial after a sexually explicit photograph was shown to the jury during opening statements; (3) that the trial court erred by granting the Commonwealth’s motion in limine to preclude him from raising “impossibility” as a defense; (4) that the trial court erred by failing to instruct the jury on lesser-included offenses; (5) that the trial court erred by refusing to instruct the jury on entrapment as a defense; (6) that the trial court erred by failing to grant his motion for a mistrial based on allegedly improper comments about Jury Instruction Number Four; and (7) that the trial court erred by sustaining the Commonwealth’s objection during his closing argument to his characterization of Kentucky Revised Statute (“KRS”) 503.064. Upon review of the record and following oral arguments, we affirm.

4
CRIMINAL
PETERS VS. COMMONWEALTH
OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE:    COMBS, CHIEF JUDGE; TAYLOR, JUDGE; HENRY,1 SENIOR JUDGE.
COMBS, CHIEF JUDGE: This appeal concerns the propriety of a writ of prohibition issued by the Shelby Circuit Court against the Shelby District Court. After careful review and consideration, we reverse and remand for entry of an order setting aside the writ.


13
FAMILY LAW - DOMESTIC VIOLENCE
HUNTER VS. MENA
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
** ** ** ** ** BEFORE: ACREE, KELLER AND LAMBERT, JUDGES.
ACREE, JUDGE: Samuel Scott Hunter appeals a Domestic Violence Order (DVO) originally entered January 22, 2009,1 and amended February 19, by the Jefferson Family Court. The final version of the order prohibits Samuel from having any contact with his former girlfriend, Candice L. Mena, or his nephew, Christopher Hunter, a minor. It also restrains Samuel from committing further acts or threats of abuse, damaging or disposing of Candice’s property, possessing a firearm, or coming within 1000 feet of her. We affirm except to the extent the order prohibits Samuel from contact with Christopher.

COA 2009 Minutes: December 30, 2009 (Nos. 1290-1306)

COA 2009 Minutes: December 30, 2009 (Nos. 1290-1306)

• 17 decisions
• 1 published

Published Decisions with digest and link to full text decision at AOC:

1301
FAMILY LAW - MODIFICATION OF CHILD CUSTODY, CR 60.02
WALSH-STENDER VS. WALSH

OPINION VACATING
** ** ** ** **
BEFORE: LAMBERT AND VANMETER, JUDGES; HARRIS,1 SENIOR JUDGE.
HARRIS, SENIOR JUDGE: Kimberly Walsh-Stender appeals from a Fayette Family Court order, entered on December 16, 2008, denying her motion to alter, amend, or vacate its prior decision to modify the custodial arrangements of her minor son pursuant to Kentucky Rules of Civil Procedure (CR) 60.02. Kimberly2 claims that the trial court erred in the following ways: (1) the evidence failed to show that a change of circumstance existed which required modification in order to comply with the best interests of the child; and (2) the factual findings of the trial court were not supported by substantial evidence. Although Kimberly’s claims appear to be supported by the record, CR 60.02 relief is not the proper remedy for either claim. Nonetheless, we vacate the trial court’s orders based upon the court’s lack of jurisdiction.

COA 2009 Minutes: December 23, 2009 - None rendered

COA 2009 Minutes: December 23, 2009

Pursuant to Order of the Chief Judge:
No Opinions are Being Rendered the Week of 12/23/2009.

COA 2009 Minutes: December 18, 2009 (Nos. 1271-1289)

COA 2009 Minutes: December 18, 2009 (Nos. 1271-1289)

• 19 decisions
• 1 published

Published Decisions with digest and link to full text decision at AOC:

1286 - COMMERCIAL LAW, BANK ACCOUNTS, SUMMARY JUDGMENT

BARNETT VS. COMMUNITY TRUST BANK, INC.
APPEAL FROM FAYETTE CIRCUIT COURT  HONORABLE PAMELA R. GOODWINE, JUDGE
ACTION NO. 08-CI-00504
OPINION VACATING AND REMANDING
** ** ** ** **
BEFORE:    LAMBERT AND VANMETER, JUDGES; HARRIS, SENIOR JUDGE.
LAMBERT, JUDGE: Phillip W. Barnett (hereinafter “Phillip”) appeals from a December 29, 2008, summary judgment order entered by the Fayette Circuit Court. This order dismissed Phillip’s claims of negligence, breach of contract, and unjust enrichment against Community Trust Bank, Inc., and Kathy Lovely. Finding genuine issues of material fact precluding judgment as a matter of law in favor of Community Trust Bank and Lovely, we hereby vacate the Fayette Circuit Court’s order and remand this matter for further proceedings.

COA 2009 Minutes: December 11, 2009 (Nos. 1246-1270)

COA 2009 Minutes: December 11, 2009 (Nos. 1246-1270)

• 25 decisions
• 4 published

Published Decisions with digest and link to full text decision at AOC:

1246 - FAMILY LAW, WORKERS COMP AS MARITAL PROPERTY
Day v. Day

APPEAL FROM KENTON FAMILY COURT HONORABLE CHRISTOPHER J. MEHLING, JUDGE ACTION NO. 07-CI-00731
OPINION AFFIRMING
** ** ** ** **
BEFORE: LAMBERT AND VANMETER, JUDGES; HARRIS,1 SENIOR JUDGE.
HARRIS, SENIOR JUDGE: Tim Day appeals from a decree of dissolution of marriage. He argues that the trial court erred by determining that his entire workers’ compensation settlement was marital property and that his child support obligation was improperly calculated. We affirm.

1248 - GENDER AND DISABILITY DISCRIMINATION
Murray vs. Eastern Kentucky University

APPEAL FROM MADISON CIRCUIT COURT
HONORABLE WILLIAM T. JENNINGS, JUDGE
ACTION NO. 00-CI-00911
OPINION AFFIRMING
** ** ** ** ** BEFORE: ACREE AND LAMBERT, JUDGES; HARRIS,1 SENIOR JUDGE.
ACREE, JUDGE: Phyllis Murray appeals from a summary judgment of the Madison Circuit Court dismissing her claims of gender and disability discrimination against Eastern Kentucky University (EKU). We affirm.

1263 - CIVIL PROCEDURE, LACK OF PROSECUTION, DISMISSAL
Wildcat Property Management vs. Reuss

APPEAL FROM FAYETTE CIRCUIT COURT v
HONORABLE KIMBERLY N. BUNNELL, JUDGE
OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; MOORE, JUDGE; LAMBERT,1 SENIOR JUDGE.
LAMBERT, SENIOR JUDGE: Wildcat Property Management, LLC appeals from the November 13, 2008, order of the Fayette Circuit Court dismissing its action against Stephanie Reuss, Carl Thomas Franzen, Lindsay Franzen, Doug Graff, Mary Martha McGeehan, Tom Reuss, and Jenna Stevens for lack of prosecution. For failure of the trial court to support its dismissal with appropriate findings, we reverse and remand.


1269 - FAMILY LAW, GRANDPARENT CUSTODY
Leach vs. Harrison

APPEAL FROM ESTILL CIRCUIT COURT    
HONORABLE THOMAS P. JONES, JUDGE
ACTION NO. 06-CI-00215
OPINION VACATING AND REMANDING
** ** ** ** ** BEFORE: NICKELL AND WINE, JUDGES; HARRIS, SENIOR JUDGE.
WINE, JUDGE: Christopher Leach (“Christopher”), a father, appeals an order of the Estill Circuit Court granting permanent sole custody of his minor children to L.D. and Debra Harrison, their maternal grandparents (the “Harrisons”). On appeal, he argues that the trial court erred in finding him to be an unfit parent andfinding that it was in the best interests of the children to be placed with the Harrisons.

COA 2009 Minutes: December 4, 2009 (Nos. 1225-1245)

COA 2009 Minutes: December 4, 2009 (Nos. 1225-1245)

• 21 decisions
• 4 published

Published Decisions with digest and link to full text decision at AOC:

1236
Family Law - Child Custody Modification
Biggs vs. Biggs
OPINION VACATING AND REMANDING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; WINE, JUDGE; GRAVES,1 SENIOR JUDGE.
COMBS, CHIEF JUDGE: Mark Biggs appeals the dismissal of his motion to modify custody by the Henderson Circuit Court. After our review, we vacate and remand.

Mark Biggs (Mark) and Amy Nichols (Amy) divorced in 1999. At that time, their son, Jesse, was three years of age. The Henderson Circuit Court ordered joint custody with Amy designated as the primary care provider. In 2007, Amy, her new husband, and Jesse moved to Colorado. Mark was deployed to Afghanistan. Mark filed a motion in Henderson Circuit Court to prevent Amy from taking Jesse to Colorado. The court denied the motion because of Mark’s deployment but advised him to file another motion once he was “available” – presumably meaning upon his return to Kentucky.

In 2008, Mark filed a motion to modify custody. Citing lack of jurisdiction, the trial court dismissed the motion in April 2008, finding that Kentucky was no longer Jesse’s home state. Mark now appeals the trial court’s denial of his motion to reconsider. After examining the record and the applicable law, we are persuaded that the trial court erred in its order declining to exercise jurisdiction in this matter.

1240
Business Law - Contracts, Parol Evidence Rule
Barber Cabinet Co., LLC  vs. Sparks
OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; MOORE, JUDGE; LAMBERT,1 SENIOR JUDGE.
LAMBERT, SENIOR JUDGE: This residential construction contract case originated in 2005, when Appellees, Lundy L. Sparks and Pamela M. Sparks, contracted with B.A. Parker Homes, LLC (Parker) to construct a residence for them in Nicholasville, Kentucky, at a cost of about $700,000.00. Parker was the general contractor. As is customary, an allowance was provided in the home- building contract for various items, including cabinetry. When time came to select cabinets, Parker, the contractor, directed Sparks to Barber Cabinet Company, a well-known Kentucky cabinetry company, with which Parker regularly did business. Sparks selected cabinetry more or less within the confines of the $46,500.00 allowance. At the conference between Sparks and Barber Cabinet, detailed specifications were reduced to writing in a sales contract that was signed by Sparks. At the end of the document the following language appears:

The undersigned has ordered and approved all specifications, materials and finishes on this job. The undersigned will be responsible personally for payment in full of the total job cost listed above. This is the entire agreement and no other. Terms: 50% deposit due with contract and order, balance due upon delivery unless prior arrangements have been made. Authorizing signature: /s/Lundy L. Sparks, date 9-6-06.

The first issue presented is whether, upon Parker’s failure to pay Barber, Sparks is liable to Barber under the written instrument of September 6, 2006, quoted hereinabove. In the event we determine that Sparks is liable pursuant to the writing, we must also consider whether and to what extent Barber is entitled to a lien to secure payment.

As this case was decided in the trial court on the basis of failure of contract formation, that court failed to reach some of the accounting issues. Though perhaps not exhaustive of such issues, on remand the court should determine the amount due on the cabinetry contract, the amount Sparks paid Parker for the cabinetry, and the availability of escrow funds to satisfy all or part of the debt to Barber. As such, the trial court should make a proper determination of the foregoing matters and of such other matters as may be properly before the court. On remand, Sparks shall have the burden of proving the fact, the amount, and the purpose of payment to Parker. As to such sums that remain unpaid for the cabinetry, Barber’s lien may be enforced to such extent and its lien priority determined as required by law.

For the foregoing reasons, the judgment of the trial court is reversed. This cause is remanded for further consistent proceedings.

1242
Wills, Estates, Probate: Residuary clause distribution
Mackey vs. Hinson
OPINION AFFIRMING
** ** ** ** ** BEFORE: LAMBERT AND TAYLOR, JUDGES; HENRY,1 SENIOR JUDGE.
LAMBERT, JUDGE:    This is a will contest over a portion of the residuary estate of Dianne Hill. For the reasons stated herein, we affirm the judgment of the Campbell Circuit Court.

We therefore hold that a miscalculation or omission, if any, which resulted in a portion of Hill’s estate, including a portion of Hill’s residuary estate, going undesignated in her will did not result in intestacy as to this undesignated portion. Rather, this contingency was expressly and manifestly provided for by the general and manifest language of total distribution set forth in the will’s residuary clause. Accordingly, the heirs’ argument that Hill died partially intestate is
without merit and must be rejected. As established by over a century of precedent, the very purpose and function of the residuary clause is to account for miscalculations or omissions such as the one that was made in this case.

For these reasons, we affirm the Campbell Circuit Court’s order, as amended, holding that Hill was not partially intestate at the time of her death.

1243
Family Law - contempt for failing to pay child care assistance costs
Cabinet for Health and Family Services vs. G.(J.T.) et al
OPINION VACATING AND REMANDING
BEFORE:    FORMTEXT LAMBERT AND VANMETER, JUDGES; HARRIS, SENIOR JUDGE.

LAMBERT, JUDGE: The Cabinet for Health and Family Services appeals from the Scott Circuit Court, Family Division’s order finding it in contempt for failing to pay child care assistance costs. After careful review, we vacate and remand.

COA 2009 Minutes: November 25, 2009 (Nos. 1205-1224)

COA 2009 Minutes: November 25, 2009 (Nos. 1205-1224) - updated link!

• 20 decisions
• 3 published

Published Decisions with digest and link to full text decision at AOC

1206 - FAMILY LAW (OUT OF STATE ADOPTION VS. IN-STATE CUSTODY, DE FACTO CUSTODIAN, CASE OF FIRST IMPRESSION)
WILLIAMS VS. BITTEL
OPINION AFFIRMING
** ** ** ** ** BEFORE: ACREE AND CLAYTON, JUDGES; HARRIS,1 SENIOR JUDGE.

HARRIS, SENIOR JUDGE: Aimee and Matt Williams appeal from a Daviess Family Court order entered on December 6, 2007, denying their petition to modify custody and cross-appeal from an order entered May 5, 2008, denying their motion to reconsider the petition. Timothy Bittel appeals from an order entered on May 5, 2008, denying his petition to modify custody and to stay a foreign judgment. These appeals present our Court with three issues of first impression:2 (1) Whether an out-of-state adoption preempts Kentucky custody orders; (2) Whether a de facto custodian who is granted joint custody rights must continuously meet the de facto custodial requirements in order to maintain standing in custody proceedings; and (3) Whether the Daviess Circuit Court could properly condition its deference to the Georgia courts on M.K.’s custody and visitation by providing that its prior orders regarding Mr. Bittel’s joint custodianship and visitation with M.K. are not affected. After considering the record, the briefs, and counsels’ oral arguments, we conclude that the answer to the first two questions is “No” and the answer to the third question is “Yes.” Hence, we affirm the Daviess Circuit Court.

1211 - CRIMINAL - DUI, PBT
HOPPENJANS V. COMMONWEALTH OF KY
OPINION AFFIRMING
** ** ** ** ** BEFORE: STUMBO, THOMPSON, AND WINE, JUDGES.

WINE, JUDGE: Following a jury trial in the Carroll District Court, Thomas R. Hoppenjans (“Hoppenjans”) was convicted of one count of operating a motor vehicle under the influence of alcohol, first offense (“DUI”). He appealed to the circuit court, arguing that he was entitled to a mistrial after the arresting officer testified that Hoppenjans had refused to take a preliminary breath test (“PBT”). The circuit court affirmed, finding that the trial court’s admonishment to the jury was sufficient to cure the error. This Court granted discretionary review of the circuit court’s order. Finding no abuse of discretion, we affirm.


1222 - GOVERNMENT DISABILITY RETIREMENT BENEFITS
KENTUCKY RETIREMENT SYSTEMS VS. ROBB
OPINION AFFIRMING
** ** ** ** ** BEFORE: CLAYTON, DIXON, AND THOMPSON, JUDGES.

DIXON, JUDGE: Kentucky Retirement Systems (“KERS”) appeals a decision of the Franklin Circuit Court reversing KERS’s Board of Trustees’ (“the Board”) final order denying Linda Robb’s application for disability retirement benefits. We affirm.

COA 2009 Minutes: November 20, 2009 (Nos. 1179-1204

COA 2009 Minutes: November 20, 2009 (Nos. 1179-1204)

• 26 decisions
• 10 published

Published Decisions with digest and link to full text decision at AOC

1180 - REVENUE AND TAXATION, TAX NEXUS W/KENTUCKY
THE REVENUE CABINET OF KY. V. ASWORTH CORP
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING ** ** ** ** **
BEFORE: CLAYTON, NICKELL, AND VANMETER, JUDGES.

VANMETER, JUDGE: The Revenue Cabinet, Commonwealth of Kentucky (n/k/a Finance and Administration Cabinet, Department of Revenue) (the Cabinet) appeals from the Franklin Circuit Court’s order reversing the order of the Kentucky Board of Tax Appeals (Board). Asworth Corporation (n/k/a Asworth, LLC), D Aviation Services, Inc. (n/k/a D Aviation Services, LLC), and HT-Forum, Inc. (n/k/a HTF, LLC), (collectively the Corporations) cross-appeal from the same order. For the following reasons, we affirm the circuit court’s order to the extent that it held that the Corporations have a tax nexus with Kentucky. We reverse insofar as it applied the three-factor apportionment method and ordered an immediate refund.

1181 - TORTS (Multiple issues arising from McDonald's Strip Search case)
MCDONALD'S CORP. V. OGBURN
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
** ** ** ** ** BEFORE: ACREE, TAYLOR AND THOMPSON, JUDGES

ACREE, JUDGE: The defendant below, McDonald’s Corporation, appeals the November 15, 2007, judgment of the Bullitt Circuit Court awarding both compensatory and punitive damages to Louise Ogborn, the plaintiff below, and Donna J. Summers, a defendant and cross-claimant below. We affirm the judgment of the Bullitt Circuit Court except as to the punitive damages awarded to Summers, which we reduce to comport with constitutional due process.

1182 - REVENUE AND TAXATION, PREVAILING WAGE RATES TO WORKERS
TECO MECHANICAL CONTRACTOR, INC. V. ENVIRONMENTAL AND PUBLIC PROTECTION CABINET

OPINION AFFIRMING IN PART, VACATING IN PART, AND REMANDING
** ** ** ** ** BEFORE: KELLER AND NICKELL, JUDGES; LAMBERT,1 SENIOR JUDGE.

KELLER, JUDGE: TECO Mechanical Contractor, Inc. (TECO), appeals from the Franklin Circuit Court’s summary judgment upholding the constitutionality of portions of Kentucky Revised Statutes (KRS) Chapter 337 (the Act) and assessing back wages and civil penalties against TECO. On appeal, TECO argues that portions of the Act are unconstitutional because there is no provision for a due process hearing regarding the classification of workers by the Environmental and Public Protection Cabinet (the Cabinet). Additionally, TECO argues the Act does not provide adequate guidance regarding the classification of workers. Furthermore, TECO argues that, if the Act is constitutional, the circuit court, in finding for the Cabinet, used the incorrect standard of proof; adopted the Cabinet’s classification method, which is contrary to law; and based its judgment on inadmissible evidence. For the following reasons, we affirm in part, vacate in part, and remand. * * * The facts are not in dispute. TECO provided mechanical contractor services to various general contractors on a number of public works projects. TECO bid and contracts were awarded based on payment of the prevailing wage as set forth in the applicable Notification of Public Works Projects documents (the Notifications). Following receipt of a complaint, the Cabinet audited TECO’s wage records from those projects and, on November 21, 2002, notified TECO that it had underpaid several of its employees by a total of $150,781.82. TECO protested, and the Cabinet conducted additional investigations, which lead to a reduction in the back wages owed to $63,494.21.
Following failed attempts to negotiate a resolution, the Cabinet notified TECO that it had until March 4, 2005, to pay a compromised amount of $51,620.65 in back wages and a civil penalty of $4,000.00. Furthermore, the Cabinet advised TECO that, if it did not pay by that date, the Cabinet would seek payment of the back wages from the appropriate general contractors.


1183 - EMPLOYMENT LAW
WATERS  V. CITY OF PIONEER VILLAGE
OPINION AFFIRMING
** ** ** ** ** BEFORE: CLAYTON, MOORE, AND VANMETER, JUDGES.

CLAYTON, JUDGE: David Waters (“Waters”) has appealed from the Bullitt Circuit Court’s order granting a judgment against him for the breach of an employment contract. Because the trial court correctly interpreted the applicable statute, we affirm.


1186 - GOVERNMENT ETHICS, VIOLATIONS AND EFFECTS OF GOVERNOR'S PARDON
TURBYFILL V. EXECUTIVE BRANCH ETHICS COMMISSION
OPINION AFFIRMING
** ** ** ** ** BEFORE: NICKELL, THOMPSON AND WINE, JUDGES.

THOMPSON, JUDGE: The issue in this appeal is whether the Kentucky Executive Branch Ethics Commission (EBEC) has authority to pursue an administrative proceeding for the purpose of sanctioning Basil Turbyfill, who was previously pardoned by Governor Ernie Fletcher. Turbyfill moved to dismiss the proceeding on the basis that Governor Fletcher’s pardon was a full pardon precluding any criminal or civil action against him arising from any alleged violations of the Kentucky merit system laws prohibiting employment decisions based on political activities. The circuit court denied Turbyfill’s petition for judicial review and declined to order dismissal of the administrative proceeding, ruling that the pardon did not apply to the EBEC proceeding. We agree with the circuit court and affirm.


1188 - TORTS, SLIP AND FALL, SUMMARY JUDGMENT
FALLER V. ENDICOTT-MAYFLOWER, LLC
OPINION AFFIRMING
** ** ** ** ** BEFORE: COMBS, CHIEF JUDGE; NICKELL AND TAYLOR, JUDGES.

NICKELL, JUDGE: Rhoda Faller (Rhoda) fell and sustained injuries while exiting Buck’s Restaurant in Louisville, Kentucky. She appeals from the Jefferson Circuit Court’s award of summary judgment to Rader Enterprises, Inc., d/b/a Buck’s Restaurant (Rader); Endicott-Mayflower, LLC (Mayflower); and Professional Property Managers, LLC (PPM) (collectively referred to as appellees). Because there are no genuine issues of material fact, and Rhoda cannot prove any act or omission by an appellee substantially caused her to fall, we affirm the circuit court judgment.


1193 - CRIMINAL LAW
MUNCY V. COMMONWEALTH OF KY
OPINION AFFIRMING
** ** ** ** **

BEFORE: NICKELL AND VANMETER, JUDGES; LAMBERT,1 SENIOR JUDGE.
VANMETER, JUDGE: Eddie Dwayne Muncy (Muncy) appeals from the final judgment of the Bell Circuit Court sentencing him to ten years’ imprisonment for two counts of first-degree trafficking in a controlled substance. For the following reasons, we affirm.


1195 - FAMILY LAW, CHILD SUPPORT
ARTERBURN V. FIRST COMMUNITY BANK
OPINION AFFIRMING
** ** ** ** ** BEFORE: CLAYTON, MOORE, AND VANMETER, JUDGES.

VANMETER, JUDGE: Michael S. Finck appeals from an order entered by the Jefferson Circuit Court, Family Division, regarding his child support obligation. We affirm.


1198 - CORPORATIONS, PIERCING CORPORATE VEIL
INTER-TEL, INC. VS. LINN STATION PROPERTIES, LLC
OPINION AFFIRMING
** ** ** ** ** BEFORE: CAPERTON AND DIXON, JUDGES; HENRY,1 SENIOR JUDGE.

HENRY, SENIOR JUDGE: Inter-Tel, Inc. (“Inter-Tel”) and Inter-Tel Technologies, Inc. (“Technologies”) appeal from an opinion and order of the Jefferson Circuit Court granting a motion for summary judgment brought by Linn Station Properties, LLC. Inter-Tel is the parent corporation of Technologies, which was in turn the parent corporation of Integrated Telecom Services Corporation (“ITS”). ITS is now defunct. The sole issue on appeal is whether the circuit court correctly determined that the corporate veil of ITS may be pierced and that Inter-Tel and Technologies are consequently liable for a default judgment that Linn Station obtained against ITS. Having reviewed the circuit court’s decision, we affirm.



1201 - REAL ESTATE MORTGAGE, SURETY, SUPERSEDEAS BOND
LAWYERS MUTUAL INS. CO. OF KY. VS. STEWART
OPINION AFFIRMING
** ** ** ** ** BEFORE: NICKELL AND WINE, JUDGES; HARRIS, SENIOR JUDGE.

WINE, JUDGE: Lawyers Mutual Insurance Company of Kentucky (“Lawyers Mutual”) appeals a final order of the Knox Circuit Court denying its motion for enforcement of a supersedeas bond against the surety thereon. The issue presented is whether a surety upon a supersedeas bond can escape liability thereon without further order of the court when its principal purpose has been extinguished. For the reasons set forth herein, we find that a surety cannot be bound when a supersedeas bond fails to stay execution of a judgment.

COA 2009 Minutes: November 13, 2009 (Nos. 1154-1179)

COA 2009 Minutes: November 13, 2009 (Nos. 1154-1179)[link corrected 11/17/2009)

• 26 decisions
• 6 published

PUBLISHED DECISIONS WITH LINKS TO FULL TEXT

1157
FAMILY LAW
Marital property, garnishment and responsibility  for early-withdrawal penalties & tax consequences

James Atkisson  v. Kathleen Atkisson
JEFFERSON COUNTY
OPINION AFFIRMING APPEAL NO. 2008-CA-000376-MR; AND REVERSING IN PART AND REMANDING APPEAL NO. 2008-CA-001774-MR
** ** ** ** ** BEFORE: ACREE, STUMBO, AND WINE, JUDGES.
WINE, JUDGE: James Atkisson (“James”) brings these consolidated appeals from a judgment and post-judgment orders of the Jefferson Family Court involving the dissolution of his marriage to Kathleen Atkisson (“Kathleen”). First, James appeals from the court’s judgment restoring Kathleen’s non-marital interest in the residence, dividing the parties’ interest in a timeshare property, and awarding temporary maintenance and attorney fees to Kathleen. We find no reversible error in the trial court’s rulings on these issues. In the second appeal, James contends that Kathleen filed premature garnishment writs against certain tax-deferred accounts, causing him to incur substantial penalties and taxes. We agree with the trial court that Kathleen was within her rights to file the garnishment writs when she did. However, we also find that the trial court abused its discretion by requiring James to be solely responsible for the early-withdrawal penalties and tax consequences caused by the garnishment. Hence, we affirm in part, reverse in part and remand with directions for the trial court to make appropriate adjustments in its allocation of the marital estate.


1159
ARBITRATION
Affirmed enforcement of award

FIA Card Services N.A. v. Michael P. Callahan
JEFFERSON COUNTY
OPINION REVERSING AND REMANDING
** ** ** ** ** BEFORE: ACREE, TAYLOR AND THOMPSON, JUDGES.
ACREE, JUDGE: FIA Card Services, N.A., formerly known as MBNA America Bank N.A. (FIA), appeals from the denial by the Jefferson Circuit Court of FIA’s Petition and Application to Confirm and Enforce Arbitration Award against Michael Callahan. No brief was filed on behalf of Callahan. After considering the record in this case and the law applicable thereto, we find that the trial court should have confirmed and enforced the arbitration award. Accordingly, we reverse.


1164
BUSINESS LAW
Garnishment, attorneys fees, etc.

Sandra C. Brooks v. Lexington- Fayette Urban County Government
OPINION AFFIRMING
** ** ** ** ** BEFORE: KELLER, MOORE AND NICKELL, JUDGES.
NICKELL, JUDGE: This case reaches our Court for the third time following seventeen years of contentious litigation. It has been the subject of published opinions from this Court and the Supreme Court of Kentucky.1    The issues raised in this appeal are whether the trial court erred in granting the Lexington-Fayette Urban County Housing Authority its costs and expenses incurred in its successful bid to quash enforcement of a non-wage garnishment, and in denying Sandra C. Brooks’ (“Brooks”) request for attorney’s fees. These issues arise from orders of the Fayette Circuit Court entered on August 7, 2008, and October 10, 2008. Although separately appealed, the matters have been consolidated for purposes of our review.

As correctly stated by the trial court, it is well settled in Kentucky that attorney’s fees are awarded only to the prevailing party. CR 54.04, KRS 344.450. Brooks did not prevail on any portion of the litigation for which she now seeks reimbursement for her attorney’s fees. She cites no authority supportive of her proposition that she is somehow still entitled to receive the requested fees and we are convinced none exists. The trial court correctly found the fee application was unreasonable and the amounts sought were non-compensable under the law. Again, there was no abuse of discretion.



1170
GOVERNMENT, OPEN MEETINGS STATUTE

Lexington-Fayette Urban County Government v. LEXHL, LP
OPINION AFFIRMING
** ** ** ** ** BEFORE: STUMBO, THOMPSON, AND WINE, JUDGES.
WINE, JUDGE: The Lexington-Fayette Urban County Government (“LFUCG”) appeals from a summary judgment entered by the Fayette Circuit Court which dismissed its declaratory judgment against Lexington H-L Services, Inc., d/b/a Lexington Herald Leader (“Herald-Leader”). The LFUCG sought a declaration that the litigation exception to the Open Meetings Act allows it to close council meetings in order to answer requests for information propounded by administrative agencies. The trial court concluded that the matter was moot because the underlying action was no longer pending before the agency. We agree. Furthermore, the LFUCG has not shown that this issue is capable of repetition which would allow review. Hence, we affirm the trial court’s dismissal of the action as moot.


1171
TORTS, EMPLOYMENT
Intentional infliction of emotional distress, disability discrimination
William Bohl v. City of Cold Spring
OPINION AFFIRMING
** ** ** ** **
BEFORE: NICKELL AND VANMETER, JUDGES; LAMBERT,1 SENIOR JUDGE.
LAMBERT, SENIOR JUDGE: This appeal is from the trial court’s summary judgment in favor of Appellee on Appellant’s claims for disability discrimination, retaliation, constructive discharge, intentional infliction of emotional distress (“IIED”), and disability harassment. For the reasons stated herein, we affirm.

In this case, Appellant made a prima facie showing of the “essential functions” element, because he produced evidence that he continued to perform his job to the satisfaction of his employer after he was diagnosed with multiple sclerosis, to and including the day he ceased working as a detective. Chief Burk stated in his deposition that there were no job performance issues with Appellant at any point during his time with the Department or after he was diagnosed with multiple sclerosis and that he was performing his job duties to the Department’s satisfaction. Therefore, from this evidence and in view of the low threshold showing required of a plaintiff, we conclude that Appellant provided sufficient proof to meet his prima facie case as to this element.




1175
FAMILY LAW
Custody
Karen Temple v. Philip Temple
OPINION AFFIRMING
APPELLEES
** ** ** ** ** BEFORE: NICKELL AND WINE, JUDGES; HARRIS,2 SENIOR JUDGE.
NICKELL, JUDGE: This appeal flows from the filing of a custody petition by N.T.’s maternal grandmother, Cheryl McCauley. Karen Temple, the natural mother of N.T., appeals from an order entered by the Owsley Circuit Court on November 18, 2008, adopting the findings of fact, conclusions of law and decree proposed by a special domestic relations commissioner (DRC) who found Karen had waived her superior right to her son’s custody by not seeking custody for herself; awarded custody of N.T. to Cheryl; allowed Karen and her father, Phillip Temple, to share visitation with N.T. at least one weekend of each month; and directed Karen to pay $60.00 to Cheryl each month in child support. After reviewing the record and the law, we affirm.