Kentucky Court Report - SCOKY & COAKY

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: Dismissal for lack of prosecution; long arm statute: Beach v. Caesars Riverboad Casino, LLC (COA 9/4/2009)

Beach v. Caesars Riverboad Casino, LLC

2008-CA-000402    9/4/09    2009 WL 2834842    DR pending Opinion by Judge Taylor; Judge Moore concurred; Judge VanMeter dissented.

The Court reversed and remanded an order of the circuit court dismissing an action for lack of jurisdiction over appellees on appellant’s complaint for personal injuries she received on appellees’ riverboat casino located just across the Kentucky state line in Indiana. The Court held that the trial court erred by dismissing the complaint and concluding that the cause of action did not arise out appellees’ contacts in Kentucky. The Court took judicial notice, pursuant to KRE 201, of the adjudicated facts set out in Ford v. RDI/Caesars Riverboat Casino, LLC, 503 F.Supp. 2d 839 (W.D. Ky. 2007), and held that these facts, coupled with the unrefuted allegations in the complaint, provided the Court with a sufficient factual background to analyze appellees’ contacts with Kentucky under the long- arm statute, KRS 454.210. While appellees’ contacts with Kentucky did not “cause” the accident, the systematic and continuous nature of the contacts most clearly contributed to appellant’s presence on the premises when she suffered her injuries.

WRITS - Lack of subject matter jurisdiction in writ filed over property distribution and estate matter: William Goldstein, Executor v. Judge Timothy J. Feeley & Ruby Joann Young-Layer (Real Party in Interest) (SC 8/27/2009)

William Goldstein, Executor v. Judge Timothy J. Feeley & Ruby Joann Young-Layer (Real Party in Interest)
2008-SC-000597-MR August 27, 2009
Opinion by Justice Venters. All sitting; all concur.

Before the circuit court could rule on the property division in dissolution action, the exhusband passed away. The circuit court substituted the estate as party to the dissolution and entered a restraining order prohibiting transfer of marital assets. The executor filed for a writ of prohibition and mandamus, arguing the trial court lacked personal jurisdiction. The Court of Appeals denied the writ. On appeal, the executor argued that a writ was proper since the trial court was proceeding outside its jurisdiction, which he contended was a proper basis for the issuance of a writ. The executor asserted he had not been properly served with process, therefore the circuit court lacked personal jurisdiction over him.

The Court affirmed the Court of Appeal’s denial of the writ, holding the “lack of jurisdiction” in writ cases as referred to in Hoskins means a lack of subject matter jurisdiction —not personal jurisdiction. Furthermore, the Court held that the exhusband’s death “did not divest the circuit court of jurisdiction over the marital property, nor did it eliminate the necessity of equitably dividing the marital property.”

FAMILY LAW - Grandparents, custody, jurisdiction between states: George Mauldin; and Joyce Mauldin v. Rebecca Bearden (SC 8/27/2009)

George Mauldin; and Joyce Mauldin v. Rebecca Bearden
2008-SC-000557-DGE August 27, 2009
Opinion by Justice Noble; all sitting.

In 2005, the Jefferson Family Court awarded paternal grandparents temporary, and later permanent, custody of an infant whose parents were deemed to be abusive and alcoholic. The grandparents took the child to Alabama where they resided. In 2006, the grandparents filed a petition in Alabama to adopt the child. The child’s mother filed a CR 60.02 motion in Jefferson Family Court to set aside the permanent custody award, alleging the grandparents and the child’s father 7 conspired to fraudulently keep her away from the custody proceedings. The family court denied the CR 60.02 motion and declined to exercise jurisdiction over the mother’s subsequent motion for visitation—deferring to the Alabama courts. The Court of Appeals reversed and remanded back to the family court for a full evidentiary hearing on the CR 60.02 motion.

The Supreme Court reversed and reinstated the family court’s decision, holding it was not an abuse of discretion for the family court to take the allegations in the affidavit on their face and not hold a hearing. The Court noted that testimony on the issues would not have fundamentally changed the allegations. Further, the Court noted that the family court had dealt with the parties extensively and was in a position to judge the parties’ credibility without holding a hearing. Furthermore, the Court ruled that the mother had not identified a meritorious defense--a prerequisite for vacating a judgment under CR 60.02. The Court noted that the mother never appealed the family court’s custody ruling and could not now substitute a CR 60.02 motion for an appeal. Finally, the Court held that even though the family court mistakenly allowed the grandparents to pursue custody under KRS Chapter 403 rather than Chapter 620, it had correctly deferred jurisdiction on the visitation issue to the Alabama courts. Chief Justice Minton concurred in result only.

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.

Civil Procedure - local order prescribing objections during preliminary hearings, jurisdiction over judge's local rule: Delahanty v. Commonwealth (COA 7/31/2009)

Delahanty v. Commonwealth
2008-CA-000580 07/31/2009 2009 WL 2341518

Opinion by Judge Thompson; Judges Acree and Taylor concurred.
The Court affirmed an order of the circuit court granting a writ prohibiting a district court judge from enforcing a verbal and written directive prohibiting the county attorney and his assistants from making objections to defense counsel’s questions during preliminary hearings to establish probable cause to detain a defendant pending indictment. The Court first held that the circuit court had jurisdiction to consider the writ pursuant to controlling precedent, CR 81, SCR 1.040(6) and KRS 23A.080(2). The Court next held that KRS 23A.080(2) was constitutional and did not impermissibly amend Section 112 of the Kentucky Constitution. The Court then held that summons was not required to be issued to commence the original action and to confer personal jurisdiction over the judge. The Court then held that the threat of contempt was a sufficient legal interest to confer standing on the county attorney. The Court ultimately held that the writ was properly issued as the directive preventing county attorneys from advocating on behalf of the Commonwealth without being subject to the penalty of contempt resulted in an irreparable injury without an adequate remedy by appeal. The Court rejected the argument that objections were not sustainable during a preliminary hearing as objections on the basis of relevancy and competency were viable and sustainable. The blanket “standing” objection did not serve the purpose of preserving for appellate review the factual and legal foundations for objections. The Court finally rejected the argument that the directive was a “general policy” as opposed to a “rule” and that on that basis alone it was invalid because the district court lacked authority to promulgate it.

Jurisdiction - Personal jurisdiction, long arm statute, and eBay contacts: Robey v. Hinners (COA 5/29/2009)

Robey v. Hinners
2008-CA-000989
05/29/2009
2009 WL 1491387

Opinion by Senior Judge Buckingham; Judge Acree concurred; Chief Judge Combs dissented by separate opinion.

The Court reversed and remanded an default judgment of the circuit court in favor of a non-resident seller of a vehicle on eBay to a Kentucky resident.

The Court first held that the issue of personal jurisdiction could be raised by appellant even though a default judgment was entered. Although the case involved a default judgment, appellant contested the issue of personal jurisdiction by moving the court to dismiss the complaint on that ground. In a case of first impression, the Court then held that the transaction was a random, fortuitous and attenuated contact with Kentucky and therefore appellant did not have sufficient minimum contacts with Kentucky to allow a Kentucky court to assert personal jurisdiction over him. Merely placing the vehicle for auction on eBay did not alone create personal jurisdiction, the seller accepting the Application for Kentucky Certificate of Title/Registration did not create personal jurisdiction, the buyer taking the vehicle to Kentucky and discovering the defect did not create personal jurisdiction, the language in the eBay listing referring to a 1 month/1,000 mile Service Agreement did not create jurisdiction, and there was no evidence that the seller used eBay on any occasion other than this particular sale.

CIVIL PROCEDURE: Failure to join indispensable party: Watkins v. Fannin (COA 2/27/2009)

Watkins v. Fannin
2008-CA-000170
02/27/2009
2009 WL 485030
Opinion by Judge Acree; Judge VanMeter and Senior Judge Henry concurred.

The Court dismissed an appeal from an order of the circuit court dismissing appellant’s petition for declaration of rights.

The Court held that because appellant failed to name an indispensable party, the Court was without jurisdiction to grant relief. Because appellant’s petition sought an order to restore good time and expunge his prison record and only the Department of Corrections and the warden had the authority to do so, failure to name them in the Notice of Appeal was fatal.

CIVIL PROCEDURE - Transfer to district court reversed based upon jurisdictional amount: Jackson v. Beattyville Water Department (COA 2/20/2009)

Jackson v. Beattyville Water Department
2008-CA-000421
02/20/2009
2009 WL 414302
Opinion by Judge Stumbo; Judges Clayton and Moore concurred.

The Court reversed and remanded an order of the circuit court that remanded appellant’s claim to district court.

The Court held the trial court erred in transferring the action after finding that appellant failed to establish a prima facie case that her damages exceeded the jurisdictional amount set out in KRS Chapter 23A and 24A, based on defense counsel’s erroneous statement that appellant had not filed a supplemental answer demonstrating the amount in controversy. The record established that the answer was timely filed and the complaint, coupled with appellant’s answers to interrogatories, was sufficient to establish jurisdiction in the circuit court.

FAMILY LAW: Uniform Child Custody Jurisdiction Act (UCCJA) jurisdiction, home state: Hearld v. Hearld (COA 2/13/2009)

Hearld v. Hearld
2008-CA-000601
02/13/2009
2009 WL 350713
Opinion by Judge Thompson; Judge Stumbo and Senior Judge Guidugli concurred.

The Court vacated and remanded an order awarding custody of three minor children to the mother.

The Court held that the family court lacked jurisdiction under the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA). The prerequisite for the court to invoke jurisdiction under KRS 403.822 was not met, as Kentucky was not the home state of the children for six months prior to the commencement of the custody proceedings and moreover, there was no evidence to suggest that the children’s home state of North Carolina had declined to exercise jurisdiction. Further, the court did not have emergency jurisdiction under KRS 403.828(1), as the custodial parent’s pending deployment to Iraq and refusal to disclose the location of the children did not constitute mistreatment or abuse so as to invoke the court’s subject matter jurisdiction.