2004-CA-001102.pdf
Judge: TAYLOR
REVERSING AND REMANDING
Date: 7/1/2005
PUBLISHED
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BARREN
RIVER STATE BOAT DOCK, INC. V. K & R
MANUFACTURING CO.
REAL PROPERTY - Mechanics Liens (boat
dock)
STATUTORY INTERPRETATION - Ejusdem
Generis
The COA applied the doctrine of 'ejusdem
generis' to interpret the mechanics lien
statute such that a 'boat dock' was not an
'other structure' under KRS 367.010(1) as
the term 'other structure' was preceded by
the designation of a particular structure
- 'a house'.
The rule of ejusdem generis (of the same kind) is that where, in a statute, general words follow or precede a designation of particular subjects or classes of persons, the meaning of the general words ordinarily will be presumed to be restricted by the particular designation, and to include only things or persons of the same kind, class, or nature as those specifically enumerated, unless there is a clear manifestation of a contrary purpose.
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2004-CA-001325.pdf
Judge: MILLER
REVERSING AND REMANDING
Date: 7/1/2005
PUBLISHED
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CITY
OF GREENUP V. PUBLIC SERVICE COMMISSION.
REGULATORY LAW - PSC Jurisdiction
Although COA agreed the PSC may determine its own
jurisdiction, the PSC erred in its determination that a valid contract had been formed between Greenup and South
Shore and the COA reversed and remanded the matter to the circuit court for entry of an order reversing the decision of the
PSC.
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2004-CA-000101.pdf
Judge: JOHNSON
AFFIRMING
Date: 7/1/2005
PUBLISHED
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LIGHT
V. CITY OF LOUISVILLE, KY
REVENUE AND TAXATION - Ad Valorem Property
Taxes
In this case the City did not charge excessive ad valorem property taxes in 1998 and 1999 to its citizens, and did not owe the Lights a refund.
The term “taxing district” as found in KRS 132.0225 includes cities.
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2004-CA-002434.pdf
Judge: MILLER
AFFIRMING
Date: 7/1/2005
NOT PUBLISHED
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COVINGTON
V. PIPE FITTERS LOCAL 502
ARBITRATION - Valid Provision in
Employment Contract
Appeals from order dismissing claims for breach of contract and wrongful termination without prejudice and referring the case to arbitration pursuant to the appellant’s employment contract with Pipe Fitters’ Local 522 Joint Educational and Training Fund (522 Fund).
Affirmed because the arbitration clause contained in the contract is a valid and enforceable contract
term.
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2004-CA-000935.pdf
Judge: EMBERTON
AFFIRMING
Date: 7/1/2005
NOT PUBLISHED |
FENTRESS
V. HENDERSON
ATTORNEYS FEES - Void Real Estate
Contract Separable Provisions
This appeal involved the Hendersons
entering into a sales and purchasing contract for the purchase of real property owned by
the Fentress's for a purchase price of $126,500.
The contract further stated that its enforceability was conditioned on the property appraising at that amount.
After the property failed to appraise for the purchase price and several offers and counter-offers were made and rejected, the Hendersons filed the present action seeking a return of their $2,000 deposit, costs, and reasonable attorney’s fees.
The sole issue raised concerns the court’s award of attorney’s fees in the amount of $2,500.
In this case, the contract specifically provides for
such fees and leaves no room for interpretation. The provision unambiguously states that the fees can be recovered by the party prevailing in any litigation to enforce the contract.
The contract is a standard real estate contract
containing no provision that offends public policy or any
statute. The Fentresses concede this point. The argument is made, however, that the circuit court declared that the contract was “null and void” because the property did not appraise for the amount of the purchase price and, therefore, the entire contract, including the attorney’s fees provision, is not enforceable.
A contract is void ab inititio when it seriously
offends law or public policy as opposed to one that is merely voidable at the election of one party to the contract.
There is no factual or legal basis on which the court
could find the entire contract void; it does, however, contain a condition precedent that, when unsatisfied, rendered the agreement to purchase the property unenforceable. When a condition precedent to the performance of a real estate contract fails, the contract to sell and purchase will not be enforced and the deposit refunded. There is no dispute that the property appraised for less than the sale price.
The attorney’s fees provision in the contract is
obviously separable from that binding the parties to the sale of the property. When the litigation ensued over the return of the deposit money and the Hendersons were successful, both contingencies were met as agreed upon by the parties.
Although the provision binding the parties to the sale and purchase of the property is not enforceable because a condition precedent has not been satisfied, all conditions precedent to the enforcement of the attorney’s fees provision have been met and the circuit court properly enforced that provision.
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2004-CA-001184.pdf
Judge: TAYLOR
AFFIRMING
Date: 7/1/2005
NOT PUBLISHED |
RAYMOND
V. RAYMOND
CIVIL PROCEDURE - Setting Aside Order
(Attorneys Acts; Family Law)
Wife sought per CR 60.02 to set
aside sole custody claiming she was not
aware of the agreed order entered by her
attorney on custody and that her attorney
was not authorized to agree to such order.
It is well-established that the “[n]egligence of an
attorney is imputable to the client and is not a ground for
relief under . . . CR 60.02(a) or (f).” Vanhook v. Stanford-Lincoln Co. Rescue Squad, Inc., 678 S.W.2d 797, 799 (Ky.App. 1984). In
Vanhook, we emphasized that a litigant who voluntarily chooses an attorney to represent him cannot later avoid the consequences of the attorney’s
acts.
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2004-CA-001005.pdf
Judge: HENRY
AFFIRMING
Date: 7/1/2005
NOT PUBLISHED
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WATTS
V. APPALACHIAN REGIONAL HEALTHCARE, INC.
CIVIL PROCEDURE - Revival of Cause of
Action Upon Plaintiff's Death
Failure of estate to revive decedent's cause of action following his death and failure to name in the Notice of Appeal the estate as one of the party appellants leaves no representative named on behalf of his estate who could be bound by any decision this court might make.
Upon a decedent's death, the cause of action did not cease, but
rather it was necessary for his representative to
file a motion to substitute within a year following his death in
order to "revive" it. CR 25.01; Kentucky Revised Statutes (KRS)
411.140; 395.278.
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2003-CA-002522.pdf
Judge: EMBERTON
AFFIRMING; AND GRANTING MOTION TO STRIKE
REPLY BRIEF - NOT PUBLISHED
Date: 7/1/2005
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TURNER
V. EMC MORTGAGE CORP.
CONTRACTS - Mortgages (Foreclosure
Action)
This is a mortgage foreclosure action filed by EMC Mortgage Corporation against
the Turners. EMC filed a motion for summary judgment supported by an affidavit of its vice president, stating that the account was in default and itemized the amount due.
The mortgage contains an acceleration clause providing
that EMC could declare the entire amount due and payable if the Turners defaulted in making payments. The Turners have presented no evidence to contradict EMC’s affidavit that the Turners defaulted.
The failure of the mortgage to qualify for insurance does not, either under the law or the terms of the mortgage, alleviate their obligation to pay the amount owed and does not raise a material issue of fact so as to preclude summary judgment.
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2004-CA-000564.pdf
Judge: TACKETT
AFFIRMING -
NOT PUBLISHED
Date: 7/1/2005
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BLACK
V. COM
CRIMINAL - Indictment
COA rejected Defendant's
claim that the grand jury’s failure to indict him on tampering constituted a “no true bill” on that charge, requiring the prosecutor to present the
evidence to another grand jury in order to obtain an indictment on that charge.
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2003-CA-002035.pdf
Judge: COMBS
AFFIRMING
NOT PUBLISHED
Date: 7/1/2005
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GRAY
V. COM
CRIMINAL - RCr 11.42
In light of the interpretation of the law prevailing at the time of the representation,
Defendant’s counsel acted wholly reasonably by advising him to accept the favorable plea offer made by the Commonwealth. The trial court correctly determined that the record refutes
Defendant's claim of defective performance of counsel; thus, he was not entitled to an evidentiary hearing or the appointment of counsel on this claim.
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2004-CA-001560.pdf
Judge: BARBER
AFFIRMING
Date: 7/1/2005
NOT PUBLISHED
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HENSLEY
V. COM
CRIMINAL - RCR 11.42 Denial
Affirmed denial of defendant's RCR
11.42 motion. The record shows that defense counsel was unsuccessful in attempts to question that witness because of the witness’s perpetual intoxication. Hensley contends that defense counsel should have sought an order incarcerating the witness until he was sober enough to testify.
No provision in law is cited in support of this contention.
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2004-CA-000952.pdf
Judge: TAYLOR
AFFIRMING
Date: 7/1/2005
NOT PUBLISHED
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JONES
V. COM.
CRIMINAL - Convicted Felon in
Possession of Firearm
Convicted felon convicted of
possessing firearm argues on appeal that since he had relinquished control of the rifle, he had no intent to possess the rifle and thus was not in possession at the time of his arrest.
CPA found find this argument to be disingenuous at best. Since appellant did admit to pawning the rifle, the jury could reasonably conclude that he had possessed it. The statute
does not require that a felon be arrested with a firearm in his possession. Any evidence establishing that a convicted felon possessed a firearm is sufficient to convict for violation of the statute.
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2003-CA-000397.pdf
Judge: DYCHE
AFFIRMING
NOT PUBLISHED
Date: 7/1/2005
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MADDEN
V. COM.
CRIMINAL LAW - RCr 11.42 Denial
Contrary to criminal defendant’s assertions, “[a]n evidentiary hearing is not necessary to consider issues already refuted by the record in the trial court. Conclusionary allegations which are not supported with specific facts do not justify an evidentiary hearing because RCr 11.42[(5)] does not require a hearing to serve the function of discovery.
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2004-CA-000524.pdf
Judge: TAYLOR
AFFIRMING AND DISMISSING CROSS-APPEAL AS
MOOT
NOT PUBLISHED
Date: 7/1/2005
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CLAYTER
V. HUTCHASON
DAMAGES - Pain and Suffering (Zero
Verdict; Palpable Error)
APPEALS - Prehearing Statement
In a case where the jury
awarded the plaintiff her medicals but
nothing for pain and suffering. On
appeal, the COA noted that the appellant
failed to alleged in her prehearing
statement that the verdict was clearly
erroneous but then argued that the error
was palpable. The COA was unable to conclude there exists such an insufficiency of evidence that the jury’s verdict constituted palpable error.
At trial, a disputed factual issue surrounded whether Clater suffered an aggravation
of her spondylolisthesis as a result of the accident.
COA initially pointed out that Clater seems to raise
various allegations of error in the statement of the case
portion of her brief. These various allegations of error were
not identified in her prehearing statement
and were summarily rejected by the
Court. See Pierson v. Coffey, 706 S.W.2d 409 (Ky.App. 1985)(holding that
failure of appellant’s brief to comply with CR 76.12 precluded
considering issues on appeal); Sallee v.
Sallee, 142 S.W.3d 697 (Ky.App. 2004)(holding that issue not raised in prehearing
statement or by timely motion is not properly before the Court).
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2004-CA-001260.pdf
Judge: TAYLOR
AFFIRMING
Date: 7/1/2005
NOT PUBLISHED
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KENTUCKY
RETIREMENT SYSTEMS V. TROXTLE
EMPLOYMENT LAW - Government Disability
Retirement
Affirmed circuit court's reversal as
hearing officer's finding there was no
work-related injury to claimant's neck was
plainly contrary to evidence.
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2004-CA-001326.pdf
Judge: TAYLOR
AFFIRMING
Date: 7/1/2005
NOT PUBLISHED |
BURKE
V. BUCKLER
TORTS - CIVIL RIGHTS - Denial of medical
care per 42 USC 1983
Affirmed summary judgment dismissing
appellant's claim that the detention
center was deliberately indifferent to his
medical needs. Appellant failed to put on any evidence establishing that he suffered a serious medical condition that required immediate attention.
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2003-CA-002153.pdf
Judge: EMBERTON
REVERSING AND REMANDING
NOT PUBLISHED
Date: 7/1/2005
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BRATCHER
V. CONOPCO, INC, A NEW YORK CORPORATION
WORKERS COMP - Regular or Recurrent
Part of Business and Exclusive Remedy
Provisions
The sole issue presented is whether the work performed by Bratcher for his employer was a regular or recurrent part of the trade or business of
Conopco.
COA found it was not and reversed the circuit court
such that Bratcher’s sole remedy was not
under the exclusive remedy provisions of the workers’ compensation statute.
When considering the issue of immunity from tort liability, the courts have liberally construed provisions providing workers’ compensation coverage
while narrowly construing those providing immunity from tort.
Conopco is in the business of manufacturing tomato
sauce and related products. Although maintenance of the
facility and its equipment is necessary to its business, it is not in the business of maintaining, producing, or selling the equipment Bratcher was repairing at the time of his accident.
The work performed by Bratcher was not work of a kind that is a regular or recurrent part of Conopco’s business.
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2005-CA-000017.pdf
Judge: TAYLOR
AFFIRMING
Date: 7/1/2005
NOT PUBLISHED
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TRI
COUNTY OPERATIONS V. SURGENGER
WORKERS COMP - 3X Multiplier
Affirmed 3x multiplier to workers
injuries. Based upon the recent amendment of KRS 342.730(1)(c)1 and 2 and upon its plain language, the Supreme Court
held that an ALJ is authorized to determine which provision is more appropriate on the facts. If the evidence indicates that a worker is unlikely
to be able to continue earning a wage that equals or exceeds the wage at the time of injury for the indefinite future, the
application of paragraph (c)1 is appropriate.
Thus, in a case where both subsections may apply, the ALJ must determine whether the employee is likely to
continue to make the same or greater wages into the indefinite future.
If the employee is unable to make the same or greater wages in the indefinite future, subsection 2 is applicable; if the employee is able to make the same or greater wage into the indefinite future, subsection 1 is applicable.
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2004-CA-002537.pdf
Judge: HENRY
AFFIRMING
Date: 7/1/2005
NOT PUBLISHED |
TURNER
V. APOLLO FUELS, INC.
WORKERS COMP - Sufficiency of Evidence
(Black Lung)
Although the medical evidence was conflicting,
the evidence presented by the employer was more persuasive and sufficient to establish that Turner did not suffer from
coal workers' pneumnconiosis.
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2005-CA-000460.pdf
Judge: 18 kb
Date: 7/1/2005
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EASON
V. HORNBACK CABINET CO.
WORKERS COMP - AMA Impairment Ratings
Affirmed finding no error in ALJ award
and WCB's affirmance.
It is unquestioned that Eason received work-related
injuries and repairs to his back at multiple levels. In
assessing his disability, Dr. Auerbach used the “Diagnosis-Related Estimate” method,1 which resulted in a 23% disability rating. Dr. Loeb used the “Range of Motion” method, which produced a 13% disability rating. The ALJ used Dr. Loeb’s method and results in making his award, and Eason petitions for review.
Both doctors referred to the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fifth Edition, 2001. That tract, at § 15.2, gives specific instructions on how to determine the “Appropriate Method for
Assessment” (of) Spinal impairment rating
Spinal impairment rating is performed using one of two methods:
the diagnosis-related estimate (DRE)
or range-of-motion (ROM) method.
It is unquestioned that Eason has had fusion at multiple levels in the same spinal region. The range-of-motion method, as used by Dr. Loeb, was therefore the proper method for assessment, and the ALJ was correct in using the impairment rating that method produced.
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