Vol. 2006:12

COURT OF APPEALS DECISIONS FOR March 10, 2006

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PUBLISHED .

A jury found against appellant in a 1998 case, but that judgment was subsequently reversed and remanded by the CAs.  Appellant brought current action that appellees argued was precluded by res judicata, in that it concerned same facts/parties, etc.  CAs noted that res judicata applies when there has been a final judgment of a matter on the merits.  However, should that final judgment be reversed on direct appeal, it is treated as though it never existed, and res judicata will not have a preclusive effect.  The appellees also argued the appellant could not bring the second action because he impermissibly split his cause of action; however, this tenet is a subsidiary of the res judicata doctrine, and for it to apply, all of the elements of res judicata, including that pesky final judgment, must be present.  Again, the CAs held that since the "final judgment" at issue here had been reversed, it could not be used as a basis to assert the appellant had improperly split his cause of action.  It noted that the rule against splitting causes of action is not so broad as to foreclose all possible or potential claims against any known potential defendant not brought within the first litigation.  The CAs refused to consider the appellees' final argument that appellee's action is barred because he cannot amend his complaint in the prior litigation or from consolidating the action with the prior litigation, finding the appellant had attempted to do neither of those things, thus rendering the arguments unripe for adjudication.

CA reverses jury verdict for doctor and clinic in medmal case citing Earle v. Cobb because judge ordered clinic, a party defendant, not to be identified at trial.   

WHITE V. PAYNE
GOVERNMENT - License from ABC
2004-CA-002515
PUBLISHED  
AFFIRMING (MINTON)
DATE:  3/10/2006

Found no error in decision by circuit court ordering the ABC to grant a farm winery license.  Scope of review is limited to determining whether the circuit court clearly erred.

Home health care provider brought debt collection action against a patient to recover the cost of home health medical services provided to patient.  The circuit court entered an agreed judgment based on a settlement between the parties and signed by the attorneys. Patient claimed attorney did not have the authority and appealed from the denial of his motion for relief from the agreed judgment.   COA held due process required that client/patient be given a CR 60.02 hearing on issue of whether patient's attorney exceeded his authority when he entered into binding settlement agreement. 

The leading cases on settlement authority, Clark v. Burden, 917 S.W.2d 574 (Ky.1996), and recently Ford v. Beasley, 148 S.W.3d 808 (Ky.App.2004), both involved a decision made after an evidentiary hearing was conducted by the circuit court. The law is clear that express client authority must be had to enter into a settlement agreement, and apparent authority is insufficient. Where no express authority to settle exists, a settlement cannot bind the client.

This case involved a slip and fall at Dixie Warehouse by Reece who was not an employee of Dixie.  Reece received workers compensation benefits and sued Dixie Warehouse for her injuries.  The jury returned a favorable verdict.  On the workers compensation subrogation claim for benefits paid to Reece, the Trial court credited claimant’s workers’ compensation benefits award only to her lost wages, rather than the entire judgment obtained against the third party tortfeasor (Dixie).  COA affirmed.  

The Board reversed the ALJ in an unusual instance of finding that a doctor's opinion did not constitute substantial evidence on which to base the ALJ decision. In this case the doctor stated that he did not follow the AMA Guide precisely and instead placed the claimant in a higher category of impairment. The Board held that this could not constitute substantial evidence and reversed the ALJ's opinion. Ordinarily, a doctor's testimony about his opinion of the AMA Guide category would prevent the appellate courts from questioning the ALJ's decision. 

The claimant suffered an injury to his elbow which caused numbness in his fingers. The ALJ found that there was no permanent impairment under the AMA Guides, and refused to award expenses for medical treatment of the injury in the future. The Board affirmed, but the Court of Appeals reversed on that issue, finding that medical treatment must be awarded if the ALJ finds that there was a work related injury. This is a hot issue right now, as insurance companies are pushing to close out future liability for work related injuries. A bill was introduced in the current legislative session to limit payment of medical expenses to the 425 week period for payment of medicals, which appears to be lost in committee.

NOT PUBLISHED .

You want your summary judgment to be considered on appeal?  Make sure the Judgment states BOTH that it's final and that there's no cause for delay. 

JORDAN V. ADKINS
CIVIL PROCEDURE - Cross-claims
2004-CA-002225
NOT PUBLISHED  
AFFIRMING (DYCHE)
DATE:  3/10/2006

This was a fact-specific, no legal authority, and no pro-se response appeal to summary judgment.  The COA found that the failure to file the cross-claim was fatal to the appeal and affirmed the summary judgment.

This case arises from the alleged breach of an express warranty contained in a real estate contract. The trial court directed a verdict on the grounds that both parties entered into the contract under a mutual mistake as to the meaning of the warranty; ordered the contract voided; and ordered that the seller, Donnie Hatfield, reimburse the purchase price to Blair and that the buyer, Christina Blair, transfer the property back to Hatfield.

COA reversed and remanded since the trial court erred when it found the contract void.

Although the courts have found implied warranties applicable to the purchase of a new home, in the absence of fraud, the buyer of an older home takes it without any implied warranty. Craig v. Keene, 32 S.W.3d 90 (Ky.App. 2000). However, Blair’s claim is based on an express warranty found in the purchase contract. Therefore she is not relying on an implied warranty and the rule of caveat emptor has no effect. 

To successfully prove that the contract was entered into under mutual mistake a party must prove by clear and convincing evidence that when executing the contract, both parties labored under the same misconception concerning a material issue of fact. 

Those elements are not present here. Hatfield and Blair may have both been mistaken, but their mistake, if any, was neither mutual nor factual. Therefore the court erred when it found that the parties entered into the contract by mutual mistake.

The sole issue on appeal is whether the lower court abused its discretion in imposing the sentence for contempt without first holding a hearing. Jackson insists that the contempt is criminal (indirect) in nature and that she was entitled to full due process. See Commonwealth v. Burge , 947 S.W.2d 805, 808 (Ky. 1997).

What Jackson failed to concede is that she was given numerous opportunities to purge herself of this contempt and that it was her continual disregard for the visitation schedule and the court’s subsequent show cause orders and failure to appear at hearings that landed Jackson in jail. 

Even if the contempt were characterized as criminal in nature, Jackson was afforded due process. She received notice of the hearings, was represented by counsel, and had the opportunity to be heard.  That she failed to avail herself of those opportunities does not give rise to a denial of due process.

Ex-wife appealed TC’s Findings of Fact and Conclusions of Law, claiming that TC failed to properly designate and award the marital property and erred in denying her maintenance claims and in failing to award the full amount of her attorney’s fees and costs. 

CA found that TC did not abuse its discretion in setting aside nonmarital property to Husband and making equal division of marital estate, despite the fact that this provided Husband with property valued at $291,000 and Wife with property valued at $16,000.  CA noted that Wife had withdrawn, without TC authorization, substantial sums of money from marital accounts during the pendency of the action and also received $18,000 in temporary maintenance awards during that period.

CA also did not find abuse of discretion in TC’s failure to award permanent maintenance to Ex-Wife.  TC’s award was based on Ex-Husband’s future income resulting from a planned and imminent retirement, the short duration of the marriage, as well as, once again, Ex-Wife’s substantial withdrawals from marital accounts. 

TC’s order for Ex-Husband to reimburse Ex-Wife for only a portion of attorney fees and costs was also not an abuse of discretion, as Ex-Husband had previously been ordered to pay some of her attorney fees and Ex-Wife paid for some of the fees using marital funds.   

MURERELL-BEY V. COMMONWEALTH
CRIMINAL - RCr 11.42 denial
2004-CA-001891
NOT PUBLISHED  
AFFIRMING (TACKETT)
DATE:  3/10/2006

It does not matter whether defense counsel’s failure to insure that the federal and state sentences would run concurrently was an error. Murrell-Bey is unable to prove that he would not have pled guilty knowing the sentences might run consecutively.

The application of the serve-out provision of the parole law, 501 KAR 1:030, did not violate the prohibition against ex post facto laws.

CA affirmed Defendant's convictions and 10 year sentence for receiving stolen property worth more than $300.00, second-degree fleeing or evading police, giving a police officer a false name, third-degree escape from custody, and being a first-degree persistent felony offender.  CA rejected claims of insufficiency of evidence and prosecutorial misconduct.

MEADOWS V. COM.
CRIMINAL - RCr 11.42 denial
2004-CA-002571
NOT PUBLISHED  
AFFIRMING (MCANULTY)
DATE:  3/10/2006

Trial counsel did not give ineffective assistance in failing to call a medical expert to counter the evidence of "shaken baby syndrome" from the Commonwealth’s expert witness.  The fact that considerable evidence adduced at trial pointed to Meadows as the perpetrator of the injury precludes a reasonable probability that the result would have been different.

CA affirmed Defendant's convictions and 15 year sentence for intimidating a witness and first-degree wanton endangerment, both enhanced for first degree persistent felony offender (PFO I)  Defendant was not entitled to a mistrial based upon the introduction into evidence of two references to Jennings’ prior criminal history.  He was not entitled to a directed verdict of acquittal.  There was no abuse of discretion by the court in finding Jennings competent to stand trial.

The trial judge did not abuse his discretion by refusing to allow McCombs to withdraw his Alford-type guilty plea. 

The trial judge properly denied the pretrial motion to suppress because the anonymous tip and the officer's independent investigation yielded reasonable suspicion that criminal activity was afoot. 

The evidence was sufficient to support Washabaugh's conviction for CPFI in the Second Degree.

Defendant was not eligible for relief from his conviction and sentence under CR 60.02.

Defendant was not entitled to a directed verdict on the Cocaine Possession count because his dominion and control over the cocaine in the car and the evidence of his flight from police were sufficient to induce a reasonable jury to convict. 

KEISKER V. KENTCUKY RETIREMENT SYSTEMS
EMPLOYMENT - Deducting premiums paid by third party employment
2005-CA-000995
NOT PUBLISHED  
AFFIRMING (MILLER)
DATE:  3/10/2006

DEPT OF REVENUE V. BEYER
REVENUE AND TAXATIONS - New car vs. used car dealer 
2004-CA-002598
NOT PUBLISHED  
REVERSING (TAYLOR)
DATE:  3/10/2006

GRIFFIN INDUSTRIES, INC. V. KY. REVENUE CABINET
REVENUE AND TAXATION - Equipment used for recycling purposes
2004-CA-001812
NOT PUBLISHED  
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING (HUDDLESTON)
PRIOR OPINION ENTERED 10/28/2005 WITHDRAWN AND REISSUED
DATE:  3/10/2006

ACTON V. GEARY
TORTS - Fraud
2005-CA-000402
NOT PUBLISHED
AFFIRMING IN PART, REVERSING IN PART AND REMANDING IN PART (TAYLOR) 
DATE:  3/10/2006

CA affirms in part, reverses in part, and remands in part claims of breach of contract and warranty on roofing jobs.

TC not clearly erroneous in holding that settlement check was for all claims as to one property. Contractor clearly did not "add two roof vents" as called for in contract, so TC is reversed on this issue. CA agrees with TC that appellant failed to satisfy her burden of proof on her fraud claim.

Substantial evidence supported the denial of medical bills for chiropractic treatment and travel incident on a finding that the chiropractic treatment was not reasonable and necessary.

Thanks to Scott Byrd, Patrick Bouldin,  John Hamlet, Cherry Henault, Sam Hinkle,  Chad Kessinger,  Stephen Keller,  J. Russell Lloyd, Michelle Eisenmenger Mapes , Peter Naake,   Bryan Pierce, Alma Puissegur, Paul Schurman, Michael Stevens and James Worthington for their efforts in digesting Kentucky's PUBLISHED  appellate decisions.