• The Kentucky Decisions
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• Remember it's hard to soar with the eagles when you are surrounded by turkeys.  Happy Thanksgiving to all of you from all of us.

Legal Shorts

• No medical negligence claim against Humana and treating doctor over liver transplant 
• Unfair Claims Settlement Practices Act hems insurer in on life insurance proceeds
• Sovereign immunity still up and running for school but not teacher  on claim of negligent supervision for minor slipping and falling on wet school floor. . . no mention made of the janitor, however.
• Restitution of $140,000 shot down on appeal.  Restitution and institution not destitution.  Notice to defendant is nice too. 
• Dueling surveyors do not hog tie judge's ruling in favor of one over the other in boundary dispute.
• Misread slide by hospital pathologist discovered too late for medical negligence claim as discovery rule runs from death.  And hospital slides by on pathologist's negligent reading of the slide since he's an independent contract.
• Pretrial diversion buys his peace with peace officer (actually park ranger) in malicious prosecution dismissal
• "Going, going, not gone" as bank wins summary judgment when auctioned property not on the property - bank prevails since not a party to auction.  Happy bankers don't go bonkers.
• Store milking sales of WIC milk
• Inmate fools no-one with his dental scraper - razor blade on a toothbrush
• Comp cumulative trauma claim accrues on cessation of exposure
• Legal nonconforming use liberally construed in zoning - or signs, signs, everywhere signs.

• Crime definitely does not pay as thief gets 3 years for $300 unlawful taking. . . oh yeah, his priors came in during sentencing.

• These tongue in cheek and not so nearly accurate snippets shall not be cited in any court, publication, or brief anywhere, anyhow, or anytime.

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KENTUCKY APPELLATE DECISIONS 
November 3-7, 2003

The links from this page are to the Kentucky Administrative Office of the Court's (AOC) web site at www.KyCourts.net which contains both published and unpublished opinions of the Kentucky Supreme Court and Kentucky Court of Appeals. First, opinions that are labeled "NOT TO BE PUBLISHED" shall never be cited or used as authority in any other case in any court of this state. CR 76.28(4)(c). This is true even after the unpublished opinions become final. Secondly, although opinions labeled "TO BE PUBLISHED" may be cited as authority in any court of the Commonwealth of Kentucky, the opinions shall not be cited until all steps in the appellate process have been exhausted and they become final. As of the date Court of Appeals opinions were placed on the web site, none were final.

• Kentucky COURT OF APPEALS Decisions - Published and Unpublished
  November 14,  2003
    

  AOC LINKS SUMMARIES OF DECISIONS

  2001-CA-002165.pdf Size: 28 kb Date: 11/12/2003 NONPUBLISHED MILLER V. COM. CRIMINAL  CA affirmed Defendant's convictions and 15 year sentence for Burglary 3rd and PFO 1.  Defendant not entitled to directed verdict.  Evidence was properly admitted as nonhearsay. 2001-CA-002572.pdf Size: 29 kb Date: 11/12/2003 NONPUBLISHED COWAN V. ONTRACT, INC. D/B/A BLITZ BUILDERS, INC. SUMMARY JUDGMENT, LOCAL RULES Although this case is a warranty action for a defective metal building, the legal issues involve a summary judgment dismissing the claims which was affirmed by the Court of Appeals for failure to move the case along and respond to summary judgment in accordance with the local rules.  After losing summary judgment, the plaintiff also lost motion to set aside.  Then lost on appeal.  Strike 1, Strike 2, and Strike 3. PAUL 2002-CA-000146.pdf Size: 61 kb Date: 11/12/2003 NONPUBLISHED ESTATE OF GARY SMITH V. MILLER, M.D. MEDICAL NEGLIGENCE This is the long and drawn out case lasting more than a decade and going up through the appellate channels more than once with a Rule 11 off-shoot (scroll on down this page) arising from a police officer with hepatitis who needed a liver transplant.  Even though Humana did not cover liver transplants, it approved the transplant but the decedent tragically died before the procedure could be performed.  The named defendants included the decedent's internist, Suburban Hosp., Humana, Inc. and Humana Health Plans.   The decedent, Gary Smith, was a Jefferson County employee who was insured by Humana Insurance Plans and contracted hepatitis. As a result, Mr. Smith had chronic liver problems resulting in his death in August of 1989. Mr. Smith's surviving spouse, the plaintiff herein, brought this action to recover damages for his death. Ms. Smith contends that the actions of the defendants, either in whole or separately, caused her husband's death as he did not receive a liver transplant, the only effective cure for his condition.  The Court of Appeals affirmed summary judgment dismissing the claims against the hospital, affirmed the directed verdict dismissing the claims against Humana, and denied any allegations that the plaintiff was denied discovery.  There were sufficient continuances over years, and the plaintiff was given a continuance and more than two years had elapsed at one point in time to complete discovery and depose experts. Summary judgment dismissing claims against Suburban was affirmed and was not premature as plaintiff had time to complete discovery. At trial the directed verdict in Humana's favor was also affirmed as there was insufficient evidence to show a breach of any duty. The jury found for the internist, and this was not the subject of any appeal. Notes.  This was a long and lengthy decision with little law and analysis to commend it being read for anything other than the short summaries of legal standards to apply for summary judgment and directed verdicts, and these topics have been the subject of appellate discourse in other opinions.  What is interesting is the path cases take when there is a horrendous result but no one to blame.  The internist did nothing wrong per the jury.  The hospital did nothing wrong.  The insurance company did nothing wrong. And when the insurer finally acquiesced and allowed the liver transplant, it was too late.   We often hear that "Bad Facts Make Bad Law."  Sometimes "Bad Facts Make No Law."  A Jefferson County case, with local lawyers and local judges - the personalities and names may be of sufficient curiosity for the avid reader. The point of interest in this case may be the concomitant action involving Rule 11 sanctions against the plaintiff's attorney Joe Marshall who had health problems throughout this case and which were sometimes questioned by the appellate judges. 2002-CA-000922.pdf Size: 43 kb Date: 11/12/2003 NONPUBLISHED NEUKAM V. COM. CRIMINAL  CA affirmed Defendant's conviction and 3 year sentence for Theft By Unlawful Taking over $300.  Defendant was not entitled to a mistrial.  Further, the use of Neukam’s prior convictions for impeachment purposes during the guilt phase of his trial did not result in a manifest injustice warranting reversal under RCr 10.26. 2002-CA-001080.pdf Size: 30 kb Date: 11/12/2003 NONPUBLISHED WESTERN-SOUTHERN LIFE ASSURANCE CO. V.  MADDOX INSURANCE, DIRECTED VERDICT, LIFE INS. EXCLUSIONS Young boy tragically died in a motorcycle accident as he was evading police who attempted to pull him over after seeing him driving erratically.  Western-Southern's attempt to deny life insurance coverage based upon an exclusion in the policy which stated that no benefits would be paid if, inter alia, the death resulted from the commission of a felony.  Western-Southern's letter to the decedent's mother, Alfreda,  stated that "according to the police[,] the insured was resisting the order to stop his motor vehicle, while driving under the influence of alcohol. This is a felony."  It was also learned that the decedent's blood level was above the statutory presumption for being intoxicated. At trial, the judge denied directed verdicts, and the jury ruled in favor of the plaintiff awarding her policy limits of $25,000 plus pre-judgment interest.  Court of Appeals affirmed. The first argument of being intoxicated did not cut it.  The statutory presumption is rebuttable, and evidence to the contrary was offered in the form, inter alia, of the decedent's companion saying they only had two beers. The second argument denying the appeal took a little more finesse by the appellate court regarding the decedent's actions causing a substantial risk of serious physical injury or death.  The unfair claims settlement practices act was resurrected as shield to this defense by the insurer insofar as the insurer is required by law to give reasons for denying a claim, and the sole reason for denying this claim was the intoxication.  Nothing else was said.  Failure to timely raise this defense cost them the defense and no entitlement to a directed verdict or jury instructions. Notes.  Again, not much law and lots of facts highlighting a situation in which the defenses and exclusions were strictly construed.  The Unfair Claims Settlement Practices Act defense to a denial of coverage was an odd twist in which the insurer was stuck with the reasons given for its denial of the claim.  Additionally, no mention of the substantial risk/felony was raised in the answer to the complaint.  Although we do not have access to the Answer to the Complaint, it does raise some interesting analysis to the typical defenses to insurance coverage (eg., plaintiff's claim is subject to the statutory, policy, and regulatory defenses, exclusions, and coverages) which are generic and not fact-specific.  When an exclusionary defense is raised, then it behooves defense counsel to amend the answer and not rely on instructions and the generic defense. 2002-CA-001146.pdf Size: 47 kb Date: 11/12/2003 NONPUBLISHED ESTATE OF GARY SMITH V. MILLER, M.D. RULE 11 SANCTIONS CA affirmed Rule 11 sanctions against plaintiff's attorney in medical negligence case based on unfounded assertions alleging fraud on the court by opposing counsel.  This arose from the medical negligence case from the liver transplant that was approved too late (above). 2002-CA-001227.pdf Size: 32 kb Date: 11/12/2003 NONPUBLISHED HOWARD V. COM. CRIMINAL  CA affirmed TC's order denying without a hearing pro se Defendant's RCr 11.42 motion to vacate alleging ineffective assistance of counsel. 2002-CA-001393.pdf Size: 19 kb Date: 11/12/2003 NONPUBLISHED BARRETT V. CARTER COUNTY BOARD OF ED. SOVEREIGN IMMUNITY, INDIVIDUAL CAPACITY, MOTION TO DISMISS Student sued school board and school teacher because he fell on wet floor claiming negligent supervision by teacher and failure to get him proper and necessary medical attention.  Trial court dismissed under CR 12.  CA affirmed in part and reversed in part. The trial court erred in dismissing the complaint against the teacher, in his individual capacity, because there are facts which appellant may prove which would support a claim. Public employees enjoy only qualified official immunity. Yanero v. Davis, Ky., 65 S.W.3d 510, 522 (2001). Qualified official immunity applies to the negligent performance by a public employee of discretionary acts or functions, in good faith and within the scope of the employee's authority. Id. For the negligent performance of a ministerial act, however, a public employee is afforded no immunity from tort liability. Id.  In Williams v. Kentucky Dept. of Educ., Ky., 113 S.W.3d 145, 150 (2003), the Supreme Court stated that the teacher's duty to supervise students is a ministerial act rather than discretionary, because it involves the enforcement of rules and regulations.  Note:  No mention was made about the student's age which has nothing to do with the motion to dismiss but will/may factor in comparative negligence if under 7, 7 to 14, etc.  Shelanie v. National Fireworks Ass'n , 487 S.W.2d 921 (Ky.,1972). However, the fireworks could get curiouser and curiouser when it comes to apportionment of fault against a School Board LandLord.  Of course, we only have de minimis facts in this decision, but what about our immune landlord with the wet floors who had the not-so-immune employee possibly leaving the floor wet but without warning signs.  Two cases come to mind to stir up this mix.  The first is Ryan v. Kentucky Farm Bureau Mut. Ins. Co. 2002-CA-000637.pdf  where the Court of Appeals, in an unpublished opinion, held that trial court improperly allowed jury to apportion fault to unknown defendant who was merely a nominal party. How does this affect the unflappable and unsuable School Board (who can be sued in the Board of Claims) and the unknown (or known) janitor or other person who left the floor wet but without hazardous signs.   The second is Lanier v. Wal-Mart 2000-SC-001089-DG.pdf which held in the context of business invitees that the plaintiff/customer must prove:  1.) he/she had an encounter with a foreign substance or other dangerous condition on the business premises; 2.) the encounter was a substantial factor in causing the accident and the customer's injuries; and  3.) by reason of the presence of the substance or condition, the business premises was not in a reasonably safe condition for the use of business invitees.  Then, let's talk about apportion Black-Letter Law - Standard for CR 12 Dismissal Compliments of Judge McAnulty "Under CR 12, a court should not grant the motion to dismiss unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved in support of the claim. Pari-Mutuel Clerks' Union v. Kentucky Jockey Club, Ky., 551 S.W.2d 801, 803 (1977). When considering a motion to dismiss under CR 12, the pleadings should be liberally construed in a light most favorable to the plaintiff, and all allegations in the complaint should be taken to be true. Gall v. Scroggy, Ky.App., 725 S.W.2d 867, 869 (1987)." 2002-CA-001469.pdf Size: 25 kb Date: 11/12/2003 NONPUBLISHED WILLIAMS V. VOLVO-WHITE SUMMARY JUDGMENT, WARRANTIES Court of Appeals found no genuine issues of material fact in warranty claims against Volvo for coal trucks.  Volvo did not act unconscionably by selling trucks which did not meet the needs of the vehicles' subsequent purchasers.  It was not unconscionable for Volvo "to sell coal trucks in a market in which they're always overloaded according to the Appellee's claimed standards."  2002-CA-001524.pdf Size: 48 kb Date: 11/12/2003 NONPUBLISHED REVENUE CABINET V. COMCAST CABLEVISION OF THE SOUTH TAXATION The Kentucky Revenue Cabinet (Revenue Cabinet) appealed from the Franklin Circuit Court's opinion and order affirming the decision of the Kentucky Board of Tax Appeals (KBTA) in favor of Comcast Cablevision of the South (Comcast) on the issue of its public service corporation property tax assessment for the years 1996 and 1997. Comcast cross-appeals as to the Franklin Circuit Court's determination that the issues presented are purely questions of law. The CA affirmed as to the proper standard of review and vacated and remanded on Comcast's property assessment which involved apportioning taxes on property within and without Kentucky. 2002-CA-001565.pdf Size: 30 kb Date: 11/12/2003 PUBLISHED FIELDS V. COM. CRIMINAL - Restitution CA vacated TC's order of restitution following Defendant's guilty pleas to Burglary 3rd and Receiving Stolen Property Over $300.  TC failed to justify the restitution order of $140,000.   Here, the Defendant argued KRS 431.200 applied, which provides for a jury to determine the amount of restitution if disputed.  The Commonwealth argued that KRS 532.032 applied, which states "[r]estitution to a named victim, if there is a named victim, shall be ordered in a manner consistent, insofar as possible, with the provisions of this section and KRS 439.563, 532.033, 533.020, and 533.030 in addition to any other part of the penalty for any offense under this chapter. The provisions of this section shall not be subject to suspension or nonimposition."  CA agreed with the Commonwealth, stating that the General Assembly contemplated ordinary sentencing procedures as the foundation for restitutionary sentences, not the jury procedure referred to in KRS 431.200.  However, the TC's failure to give Fields adequate notice of the claims against him and any opportunity to controvert them plainly was an abuse of discretion.  The restitution order failed to satisfy even the Constitution’s minimal reliability standard.  Further, Fields was not accorded his statutory right to a meaningful sentencing hearing. He was not notified of any factual allegations underlying the claim for restitution and thus could not possibly have prepared to controvert those allegations   2002-CA-001777.pdf Size: 38 kb Date: 11/12/2003 NONPUBLISHED CARNES V. CARNES REAL PROPERTY, BOUNDARY DISPUTE This appeal arises out of a boundary dispute between brothers Chester and Herald Carnes of Knox County.  Neither brother’s deed delineated the wooded common boundary in terms of metes and bounds.  Rather, they merely utilized references to either long-gone natural landmarks or other surrounding properties.   Expert opinion by dueling surveyors at trial was in conflict as to the true location of the boundary.  Under these circumstances, the Court of Appeals followed the precedent of Webb v. Compton, Ky. App., 98 S.W.3d 513 (2002), stating that the trial court could choose either opinion, so long as the opinion relied upon is “not based upon erroneous assumptions or fails to take into account established factors.” Since the appellant, in his brief, did not cite any particular portion of the TC’s conclusions or assumptions as clearly erroneous, the CA declined to set aside the finding of fact regarding the location of the boundary line.  TC affirmed. 2002-CA-001812.pdf Size: 39 kb Date: 11/12/2003 NONPUBLISHED ESTATE OF MARSHALL CARMINE V. SISTERS OF CHARITY OF NAZARETH HEALTH SYSTEM MEDICAL NEGLIGENCE, INDEPENDENT CONTRACTORS This is case which shows you why discovery is called discovery.  A wrongful death action for medical negligence was filed against two treating doctors and the hospital.  Sometime later it was learned that the pathologist misread the specimens and the treating doctors would have treated their patient differently.  The complaint is amended to add the pathologist who defends on the one-year statute of limitations.  The hospital defends claiming the pathologist is an independent contractor. The Court of Appeals affirmed the dismissal of the pathologist under the statute of limitations and the dismissal of the hospital since the pathologist was an independent contractor.  Furthermore, the relation back of amendments did not save the action from the statute of limitations. "[A]though appellants claim that they could not have known that Dr. Buchino [the pathologist] caused Carmine's death until the relevant slides were brought to their attention, [t]he discovery rule does not operate to toll the statute of limitations in a wrongful death case filed in a circuit court, absent a defendant's fraudulently concealing or misrepresenting the circumstances of the death, because the cause of action accrues when the fact of injury is known; the decedent's death provides the notice to investigate." Black-Letter Law:  Read this one for a good discussion of medicine and independent contractors and the discovery rule for accrual of statutes of limitations.   Note:  This is a harsh result but is what the statute of limitations is all about in preventing stale claims.  The discovery rule does not allow you to sleep on your cause of action since the misread slides were not discovered by plaintiff's expert until nearly 5 years after the death.   2002-CA-001835.pdf Size: 24 kb Date: 11/12/2003 PUBLISHED BREWICK V. BREWICK DIVORCE, PROPERTY DISTRIBUTION Husband's half interest in real property he held jointly with his sister prior to marriage remained his nonmarital property.  2002-CA-001850.pdf Size: 20 kb Date: 11/12/2003 NONPUBLISHED BOND V. CARROLL MALICIOUS PROSECUTION  CA affirmed TC dismissal of plaintiff's malicious prosecution suit. In the underlying criminal prosecution, plaintiff had allegedly made threatening phone calls to defendant state park ranger, who had arrested plaintiff's son.  The criminal complaints were dismissed, however, under pretrial diversion.  CA held claim for malicious prosecution required termination of criminal action "in defendant's favor." By agreeing to pretrial diversion, plaintiff had compromised and "bought his peace" and, therefore, underlying action did NOT  "terminate in plaintiff's favor." (Other collateral challenges denied as improperly raised). 2002-CA-001907.pdf Size: 22 kb Date: 11/12/2003 NONPUBLISHED RUFFIN V. COM. CRIMINAL  CA affirmed Circuit Court's denial of pro se Defendant's motion to vacate pursuant to RCr 11.42 alleging ineffective assistance of counsel. 2002-CA-001909.pdf Size: 19 kb Date: 11/12/2003 NONPUBLISHED MCDADE V. ALEXANDER REAL ESTATE, CONTRACTS, RESCISSION Plaintiff sued auctioneer and bank to rescind contract for sale of real estate purchased at absolute auction.  Plaintiff argued that the contracted should be rescinded on the theory of mistake.  Apparently, all parties to the sale erroneously believed that the 14-acre lot sold included the Our Place Restaurant.  A survey by the plaintiff after the sale revealed that the restaurant was, in fact, not located upon the property subject to the sale.  The Court of Appeals upheld summary judgment in favor of the defendants.  Union Planters Bank prevailed because they were deemed to not have been a party to the sale. Likewise, the CA upheld summary judgment in favor of the auctioneer on the grounds that, per the terms of the contract, the Plaintiff buyer had A) released the auctioneer from any liability stemming in mistakes in description of the property; and b) assumed responsibility for verifying boundaries prior to closing.  Stated succinctly by Judge Tackett:  “Having thus failed to act to protect his own interest, he [the buyer] may not now seek to avoid the provisions of the contract.”  TC affirmed. 2002-CA-002288.pdf Size: 27 kb Date: 11/12/2003 NONPUBLISHED MARTIN V. COM. CRIMINAL - Bond Forfeiture In 2-1 decision, CA affirmed in part and reversed in part TC's order forfeiting to the Commonwealth half of the Defendant's $20,000.00 bail bond.  TC's order forfeiting a portion of the bond was affirmed; however, the amount of forfeiture was reversed as an abuse of discretion.   2002-CA-002318.pdf Size: 48 kb Date: 11/12/2003 NONPUBLISHED SUGGS V. COM. CRIMINAL - Search & Seizure CA affirmed Defendant's convictions and 7 year sentence for trafficking in a controlled substance (marijuana) within 1,000 yards of a school building and being a persistent felony offender in the second degree (PFO II).  TC properly held that the police did not use excessive force and acted reasonably in executing the search warrant.  Defendant failed to demonstrate the requirements necessary to establish a due process violation by the Commonwealth’s failure to affirmatively identify an eyewitness in discovery.  The mere speculation that a witness may have some evidence helpful to the defendant’s case is not sufficient to show the need for disclosure. 2002-CA-002320.pdf Size: 27 kb Date: 11/12/2003 NONPUBLISHED VICK V. COM. CRIMINAL  In 2-1 decision, CA affirmed TC's denial of pro se Defendant's motion to vacate pursuant to RCr 11.42. 2002-CA-002505.pdf Size: 21 kb Date: 11/12/2003 NONPUBLISHED WILCOX V. TAYLOR PRISON DISCIPLINE  CA affirmed Circuit Court's dismissal of inmate's petition for a declaration of right.  Wilson received all of the due process to which he was entitled in his two prison disciplinary actions. 2002-CA-002603.pdf Size: 23 kb Date: 11/12/2003 NONPUBLISHED CAB. FOR HEALTH SERVICES V. CARNES D/B/A MEV'S GROCERY ADMINISTRATIVE LAW Store lost status to participate in WIC program when random inspection discovered milk-pricing irregularities.  Attempt to assert state regulations preempted by federal law did not work. 2002-CA-002637.pdf Size: 21 kb Date: 11/12/2003 NONPUBLISHED PERRY V. DOUG FLETCHER/COM. OF KY. PRISON DISCIPLINE  Eddie Perry, inmate serving 15 year sentence for manslaughter, was disciplined when found to have a toothbrush with a razor blade attached.  His complaint that he did not receive sufficient due process in the handling of his prison disciplinary action was rejected.   The United States Supreme Court has determined that an inmate in a prison disciplinary action is entitled to receive written notice of the charges against him, to present evidence in his defense and to have the fact finder issue a written statement of the evidence relied upon and the reason for any disciplinary action taken. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 49 L.Ed.2d 935 (1994).  Note:  Of course, Eddie had an explanation.  He was not well-liked by his contemporaries and was unjustly labeled a rat and refused to accede to their demands he steal items from the administration building.  The knife was found during a search and was allegedly placed their by another inmate.  2003-CA-000761.pdf Size: 51 kb Date: 11/12/2003 NONPUBLISHED WHITE V. EXCEL MINING WORKERS COMP CA affirmed the ALJ's dismissal or worker's disability claim arising from psychological trauma and injuries to his head, neck, shoulders, arms, back, and legs alleged to be the result of a work-related accident. Worker had argued the ALJ's decision was clearly erroneous because the medical evidence upon which the ALJ relied was incomplete or inaccurate, the ALJ failed to appropriately discuss her findings, and the ALJ failed to find a safety violation. Worker loses. In discussing the appropriate standard, the CA noted the claimant referenced the wrong standard of review. "White [claimant] argues that the evidence from Dr. Primm cannot constitute "substantial evidence" supporting the ALJ's finding. A "substantial evidence" inquiry is only applied in review of workers' compensation cases where the claimant was successful below. See e.g. Addington Res., Inc. v. Perkins, Ky.App., 947 S.W.2d 421, 423 (1997). White was not successful before the ALJ, and he must instead show the existence of evidence so overwhelming as to compel a finding in his favor. Neace v. Adena Processing, Ky.App., 7 S.W.3d 382, 384-385 (1999).  When reviewing decisions of the Board, it is important to note that "the ALJ's decision is 'conclusive and binding as to all questions of fact' " and neither the Board nor this court shall "substitute its judgment for that of the [ALJ] as to the weight of evidence on questions of fact." Burton v. Foster Wheeler Corp., Ky., 72 S.W.3d 925, 929 (2002), citing KRS [FN1] 342.285. See also KRS 342.290. Further, the ALJ, "as fact-finder, may reject any testimony and believe or disbelieve various parts of the evidence." Id." 2003-CA-001020.pdf Size: 19 kb Date: 11/12/2003 NONPUBLISHED JENKINS V. A.K. STEEL CORP. WORKERS COMP  CA affirmed Boards reversal of ALJ decision awarding benefits for cumulative trauma injury agreeing with the Board that the claim was time barred - "the cessation of exposure to the trauma establishes the latest date for the clocking of the two year statute of limitations period." 2002-CA-002163.pdf Size: 25 kb Date: 11/5/2003 NONPUBLISHED JEFFERSON COUNTY BOARD OF ZONING ADJ. V. THORNTON OIL  ZONING  Thornton's sought a permit to alter a nonconforming freestanding business sign.  The changes proposed were to reduce and modernize the portions of the sign structure used for displaying messages.  The sign's supporting framework was to remain unchanged. Jefferson County Planning and Development Services concluded that the sign was a legal nonconforming use (in other words the sign was legal when erected), but was "taller and greater in area than the regulations currently allow."  Planning concluded that the proposed changes constituted a replacement of a structural element which required the sign to be brought into compliance with current regulations. Thornton's appealed to the Board of Zoning Adjustment, which denied the appeal.  Thornton's then appealed to the circuit court.  The circuit court reversed, concluding that the proposed changes did not constitute a "substantial alteration."  (emphasis in original)   The Board of Zoning Adjustment appealed to the Court of Appeals. The Court of Appeals first distinguished legal from illegal nonconforming uses.  Legal nonconforming uses are pre-existing structural uses which are legally entitled to continue.  Illegal nonconforming uses are nonconforming structures built after adoption of the zoning ordinance with which they do not comply.  They are not entitled to continue because they were illegally constructed.  The Court concluded that the Board of Zoning Adjustment had no power to hold that the sign was an illegal non-conforming structure because Planning had treated the sign as legally nonconforming.  The issue of legal versus illegal nonconforming structure had not been raised before the Board, which the Court of Appeals described as a quasi-judicial body with the power to hear appeals but without the power to "usurp the powers of the zoning enforcement officer." The Court then addressed the proposed changes to the sign.  It noted that a legal nonconforming use has a constitutionally protected property right and that ordinances that permit alterations in such uses should be liberally construed.  The Court noted that Thornton's proposed to decrease the total height of the sign and the total square footage of signage area.  It concluded that the changes were permitted by local and state law and affirmed the decision of the circuit court.  COMMENT:  The opinion is a clear statement of the rule of construction that statutes and ordinances permitting modifications to "legal nonconforming uses" should be liberally construed.  The Court's limitation on the Board of Zoning Adjustment's ability to raise issues not brought to it by the parties is also noteworthy.

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The Staff at the Jefferson County Public Law Library would like to invite you to join them for

 The Great Escape

Luncheon and Silent Auction

On Friday, December 5^th JCPLL will be providing lunch for its patrons who R.S.V.P. by Dec. 1^st.  A special drawing will also take place on the day of the luncheon.  Luncheon 11:30 -2:00.

Silent Auction items will be on display in the library beginning

Nov. 21^st.  The auction winners will be notified by the end of the business day on Dec. 5^th. 

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KENTUCKY FEDERAL DECISIONS 
Nov. 17-21, 2003

• Western District Court - Kentucky
  

  Darlene B. Collins v. Ansell Inc., et al.   Defendant, Ansell Healthcare Products, Inc., (“Ansell”) moved for summary judgment on all Plaintiff’s causes of action in a products liability case. This case was on conditional remand from the Judicial Panel on Multi-District Litigation. Ansell argued the Plaintiff could not specifically identify Ansell’s gloves as the proximate cause of her injury, a latex allergy, Type I, with respiratory involvement. Plaintiff alleged that she contracted the allergy from both physical contact with Ansell’s gloves and/or by breathing airborne latex contaminants derived from the gloves. However, in Plaintiff’s deposition, she testified that she only knowingly ever wore or was exposed to gloves manufactured by Baxter Healthcare, Inc., another defendant in the case. Plaintiff’s only other argument was that because Ansell gloves were used in part of the hospital, they could have possibly caused her allergy. The Court held that as of date, the circumstantial evidence did not rise to the quantum from which a reasonable juror could conclude it probable, or more likely than not, that Ansell’s gloves caused Plaintiff’s injuries. However, the Court allowed Plaintiff additional time to gather the discovery evidence from her Multi-District counsel to support her claim against Ansell. If the Court is not convinced the additional evidence proves causation, for purposes of summary judgment, Ansell’s motion will be sustained at that time.

• Sixth Circuit Court of Appeals 
  
  

  Opinion DocketSheet Pub Date Short Title/District 03a0407p.06 01-6116 2003/11/17  Newton v. Million     Eastern District of Kentucky at Frankfort 03a0408p.06 02-3678 2003/11/18  USA v. Blaszak     Northern District of Ohio at Cleveland 03a0409p.06 01-6118 2003/11/19  Leary v. Daeschner     Western District of Kentucky at Louisville 03a0410p.06 01-2649 2003/11/19  Caver v. Straub     Eastern District of Michigan at Detroit 03a0411p.06 02-5382 2003/11/21  USA v. Malveaux     Eastern District of Tennessee at Chattanooga 03a0412p.06 01-5309 2003/11/21  USA v. Olan-Navarro     Western District of Tennessee at Memphis 03a0413p.06 00-6719 2003/11/21  Bowman v. Corr Corp of Amer     Middle District of Tennessee at Nashville 03a0413p.06 00-6720 2003/11/21  Bowman v. Corr Corp of Amer     Middle District of Tennessee at Nashville 03a0414p.06 02-1329 2003/11/21  USA v. Bell     Eastern District of Michigan at Detroit 03a0415p.06 02-3558 2003/11/21  Sswajje v. Ashcroft     State of Ohio Agency 03a0415p.06 03-3023 2003/11/21  Sswajje v. Ashcroft     State of Ohio Agency

Cases In Context - a/k/a "The One-Minute CLE"

Directed Verdicts - Standard 

•  Lovins v. Napier, Ky., 814 S.W.2d 921, 922 (1991)
  When a motion for directed verdict is made, the trial court must consider the evidence in its strongest light in favor of the party against whom the motion was made and must give him the advantage of every fair and reasonable intendment that the evidence can justify.

• Buchholtz v. Dugan, Ky. App., 977 S.W.2d 24, 26 (1998)
  A directed verdict is appropriate only when, drawing all inferences in favor of the nonmoving party, a reasonable jury could only conclude that the moving party was entitled to a verdict.

• Taylor v. Kennedy, Ky. App., 700 S.W.2d 415, 416 (1985)
  The trial court cannot grant a motion for directed verdict "unless there is a complete absence of proof on a material issue in the action, or if no disputed issue of fact exists upon which reasonable men could differ."  On appeal, the appellate court considers the evidence in the same light. Lovins, 814 S.W.2d at 922.

Abuse of Process

• Bonnie Braes Farms, Inc. v. Robinson, Ky. App., 598 S.W.2d 765, 766 (1980)
  The tort of abuse of process involves "the irregular or wrongful employment of a judicial proceeding."

• Simpson v. Laytart, Ky., 962 S.W.2d 392, 394 (1998)
  The essential elements of an action for abuse of process include an ulterior purpose and a willful act in the use of the process not proper in the regular conduct of a proceeding. Accordingly, in order for an abuse of process claim to be viable, some definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process is required. There exists no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions. (citing W. Prosser, Handbook of the Law of Torts, Section 121 (4th ed. 1971)).

• Raine v. Drasin, Ky., 621 S.W.2d 895, 902 (1981)
  Abuse of process consists simply of "the employment oflegal process for some other purpose other than that which it was intended by the law to effect."  See also, Flynn v. Songer, Ky., 399 S.W.2d 491(1966)
  

   

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