COA Decisions - Apr. 7, 2006 (Vol. 2006:17)

Parties appealed the fact that trial court did not award pre-judgment interest in final and appealable order, but the movant did not plead via CR 59 to alter, amend or vacate such order. Instead, the movant argued that the trial judge "reserved" the issue of pre-judgment interest in earlier proceedings. The CA noted the holding in KFB v Gearhart, 853 S.W.2d 907 (Ky. App., 1993), wherein it stated that even if a trial judge "reserves" an issue to be heard after a final and appealable order is filed, the moving party is still responsible to make a CR 59 motion, and if he does not do so, his appeal will be considered untimely. Thus, the CA held the instant appeal was untimely filed and dismissed the case.

Tri-County appeals grant of Summary Judgment by TC on Greenpoint's claim for conversion. Greenpoint held a security interest in a mobile home that was destroyed by fire for which the homeowner and Greenpoint were jointly issued a check by the home's insurer, Kentucky Farm Bureau, in late 2002. The homeowner then presented the check to Tri-County for cashing, which Tri-County did even though Greenpoint had not also endorsed the check. Greenpoint sued Tri-County for conversion in June 2004 for the bank's violation of KRS 355.3-420. The TC entered Summary Judgment for Greenpoint, noting that the bank admitted to negotiating the check without Greenpoint's endorsement. On appeal, Tri-County cites several errors in TC's ruling: Greenpoint's failure to name an indispensible party, and the expiration of the applicable statute of limitations.

Held: COA affirms the TC's grant of Greenpoint's MSJ, noting that Tri-County had not preserved its argument that Greenpoint should have named KFB and Republic Bank (as drawer and payor of the check, respectively) as defendants as well since the burden is on the party who believes an indispensible party should be joined to file the appropriate motion in an effort to join such a party. Tri-County never filed any such motion or otherwise brought the issue to the attention of the TC, so the COA ruled that the issue was not subject to appellate review.

COA also rejects the statute of limitations argument, noting that Greenpoint's action did not allege any breach of warranties as contained in KRS 355.4-207 as Tri-County contends, but rather asserted a conversion claim. Per KRS 355.3-118(7), an action for conversion of a negotiable instrument must be commenced within 3 years after the claim accrues. COA concludes that Greenpoint's suit came 18 months after the conversion, which was clearly within the allotted timeframe.

DUNLAP V. COM.
CRIMINAL - DUI Seatbelt Roadblocks
2004-CA-002058
PUBLISHED (COA)
AFFIRMING (JOHNSON)
DATE: 4/7/2006

This opinion deals with 5 unconsolidated appeals dealing with the same MVA. SJ in three of the appeals is affirmed; it is reversed and remanded in the remaining two.

A teenager ("Mikael") obtains beer through his sister's boyfriend, takes boyfriend's car, drinks the beer with several friends at a local cemetery, and gets into a MVA, causing brain damaged to a friend. Friend's parents sue everyone. On appeal, the issues are: 1) Mikael's parents' negligent supervision; 2) Mikael's parents' homeowners policy coverage; 3) Mikael's parents' auto policy coverage; and 4) boyfriend's auto policy coverage.

The CA holds that the negligent supervision claim was properly dismissed on SJ because the parent's owed no duty to the appellants as his actions were not foreseeable and the child was not under the parents' immediate control. As to the parents' homeowners coverage, the CA holds that a clear and unambiguous motor vehicle exclusion properly prevents homeowners coverage. As to the parents' auto coverage, The CA holds that SJ was properly granted as coverage was excluded under a non-permissive user exclusion or "entitlement exclusion," which requires coverage only for a vehicle that the insured is using with a reasonable belief that he is entitled to do so. Mikael's testimony showed that he did not believe he had permission to use the car. Finally, as to the boyfriend's auto coverage, CA holds that a material question of fact exists as to whether Mikael was a permissive user precluding summary judgment.

The Court of Appeals affirmed the decision of the ALJ that the claimant’s fall at work was covered by workers compensation. The claimant fell while she was walking down the hall, and there was no explanation for it. The COA cited law that creates a rebuttable presumption that a fall that occurs on the employer’s premises and during the employee’s work hours arose out of the employment. The employer argued that the fall was “idiopathic” or caused by a medical condition of the employee because there was no other explanation for it, but this argument was rejected due to substantial evidence that it was simply an unexplained fall.

BIZZACK V. HUME
ZONING - Res Judicata
2004-CA-002592
PUBLISHED (COA)
REVERSING AND REMANDING WITH DIRECTIONS (MILLER)
DATE: 4/7/2006

In 1997 the Bizzacks proposed to change the zoning on their property from professional office to highway commercial, and the Frankfort-Franklin County Planning Commission (“Commission”) approved the change. The Franklin County Fiscal Court (“Fiscal Court”) adopted the Commission’s findings and approved the amendment. On appeal by the surrounding landowners (“Hume”), the Franklin Circuit Court found that the Commission and the Fiscal Court failed to analyze changes in the area in light of the standards in KRS 100.213, and remanded the case to the Fiscal Court.

The Fiscal Court did not appropriately reconsider the zone change. Instead, it conducted an ex parte meeting with the Bizzacks’ attorney to prepare findings that would satisfy the court. The Fiscal Court held two meetings in 1998 to give first and second readings to the proposed zone map amendment without allowing debate or considering other findings. This second adoption of the amendment was appealed to Franklin Circuit Court, which vacated the decision based on the unfairness of the Fiscal Court procedures. It held that the result of the ex parte contact was a denial of due process to the affected landowners and refused to remand the case back to the Fiscal Court. The Bizzacks appealed to the court of appeals, which dismissed the appeal for failure to name the Fiscal Court as a party.

In 2001, the Bizzacks again applied to the Commission for the same zoning change. The Commission voted 5-4 to approve the request. The Fiscal Court voted not to hold a new hearing, but to place an ordinance on its agenda. It added a finding that the proposed map amendment was in agreement with the comprehensive plan, and adopted the zone change. The circuit court upheld the Fiscal Court on multiple grounds. Hume appealed to the court of appeals, which reversed the zone change because the Fiscal Court did not conduct its own evidentiary hearing or review the transcript of the Commission’s hearing, and the facts in evidence were insufficient to support the decision. The Bizzacks moved the Supreme Court for discretionary review, which was denied June 9, 2004.

On June 24, 2003, the Bizzacks filed the same zone change request with the Commission. The Commission held a hearing on the application, and voted to a 5-5 deadlock. The Commission forwarded the application to the Fiscal Court without a recommendation, and the Fiscal Court granted the rezoning. Hume again appealed to the circuit court, which reversed the rezoning, holding that it was improper to apply for rezoning while the prior rezoning decision was on appeal. The Bizzacks appealed to the court of appeals.

The Bizzacks claimed that the circuit court’s opinion that res judicata barred the filing of the newest rezoning application was error. The court noted that the general law is that res judicata applies in administrative zoning decisions unless it is shown that there has been a substantial change of circumstances since the earlier denial. Because the Fiscal Court did not make any findings regarding the change in circumstances, the court reversed the circuit court and remanded the case to the Fiscal Court to determine whether there were any changes since its previous denial of the Bizzacks’ prior application to overcome res judicata.

Per the record, the CR 59 motion was not ruled upon by the trial court before the filing of the notice of appeal (as well as no order in the record disposing of the CR 59 motion). Thus, notice of appeal was premature and dismissed by COA.

COA held that trial judge did not abuse discretion in denying plaintiff's motion for new trial following jury verdict of zero pain and suffering and award of medical expenses for tibial plateau fracture from car accident. There was no defense exam, no prior injury, and no other causes blamed for the fracture. Surgery was performed with screws inserted in the fracture. COA also rejected plaintiff's appeal that defense counsel's statements during opening and closing on how to calculate pain and suffering award using per diem argument was not an admission; and the opinion did not address the issue that the No Fault Act provides for damages for pain, suffering, inconvenience and anguish upon meeting threshhold (and not just pain and suffering).

Defendant not entitled to reversal of drug conviction due to TC's denial of continuance following Commonwealth's disclosure of lab report 18 hours before trial. Failure to exhaust all peremptory strikes precluded Defendant from arguing that lead detective's wife should have been struck for cause following voir dire. The fact that the trial judge was sleeping and snoring during cross-examination of Commonwealth's witness was nonprejudicial.

Note: You have to wonder about the trial judge in this case. To deny a continuance following last minute disclosure is one thing, but to sleep during the trial is another. Further, this editor cannot think of a single jurist who would fail to strike for cause a potential juror who was married to the lead investigator in the case and admitted to discussing crucial evidence (audiotapes) with the investigator prior to trial.

KRS § 421.500 pertaining to victim impact statement does not preclude consideration by the trial court of statements from friends or family members of the victim.

The ruling in Crawford v. Washington, 541 U.S. 36, 124 S.Ct.1354, 158 L.Ed.2d 177 (2004) concerning hearsay admissions is not available for retroactive application in collateral, post-conviction proceedings.

CA affirmed the circuit court's decision to deny Thomas's RCr 11.42 motion as untimely.

SLONE V. JOHNSON
EVIDENCE - Parol evidence rule and deeds
2004-CA-002139
NOT PUBLISHED (COA)
REVERSING AND REMANDING (COMBS)
DATE: 4/7/2006

FRALEY V. FRALEY
FAMILY LAW - Trial Court Failed to Follow Appellate Court's instructions on remand
2005-CA-001137
NOT PUBLISHED (COA)
REVERSING AND REMANDING (DYCHE)
DATE: 4/7/2006

Reversed and remanded order regarding father's visitation (who had complained trial judge did not grant him sufficient visitation with his daughter after previous remand) for entry of order consistent with COA's previous opinion.

Husband who earns the following incomes over the following years is properly imputed an income of $63,783, and not the $13,055 he reported earning in the year of the divorce; Husband testified he should be able to earn $50,000 to $60,000 per year. Wife was imputed minimum wage since she had not been working outside the home for several years; it was irrelevant that Husband’s parents, and not husband, had largely financed the family’s rather luxurious life.

1999 $ 27,191.00
2000 $ 70,913.00
2001 $212,871.00
2002 $ 48,791.00
2003 $ 13,055.00

Further; Husband required to file income taxes for past five years individually, married, filing separately. He was the only person earning income for the past five years; Wife did not know that he had not filed; even though the tax burden would be as much as 30% higher than married, filing jointly, Wife should not share legal responsibility and obligation to IRS for payment of taxes. Vigorous dissent on this issue. Wife entitled to five years maintenance; one year to complete her degree and the remainder to establish herself in her field; Husband had many years of establishing himself in his own chosen profession. Wife over 40 years of age and out of job market for more than ten years; her budget was inflated; the children were in school with no finding of special needs. Husband’s budget showed minimal expenses; and imputed income showed he could pay Wife $1500 per month for five years; if Wife remarried, maintenance ceased.

Holding that substantial evidence supported TC's findings that foster parents had provided primary care for and financial support of child and that biological parents had voluntarily consented to child's permanent placement with them, and that foster parents were not unfit nor had they relinquished superior rights to custody of child, CA held that another
couple petitioning for custody of child had no standing to do so and custody with foster parents was proper.

The Cabinet for Health and Family Services appeals the dismissal of its Involuntary Petition to Terminate Parental Rights by the trial court. The Cabinet sought to terminate Appellee’s parental rights on allegations that the child was left unattended in dirty and unsafe conditions, that Appellee’s were using illegal drugs, and that their minor child was not receiving necessary medical services and therapy even though they were provided free of charge. At trial the Cabinet called a social worker who testified as to her experience with the family for a period of three and one half years. No other witnesses were called by either party, including the Appellees. The trial court declined to grant the Cabinet’s Petition.

The Court criticizes the trial court for summarily concluding that the Cabinet failed to prove by clear and convincing evidence that the minor child was abused or neglected as defined by KRS 600.020 (1); termination would be in the child’s best interest; and grounds for termination exist as defined by KRS 625.090. The Court states that a trial court must make its findings of fact with specificity and not summarily. The Court notes that, under the clear and convincing evidence standard, unrefuted evidence alone is not sufficient to meet the burden of proof. The Court states that clear and convincing evidence must be “clear and convincing both in quantity and quality to the satisfaction of the trial court”. The case was remanded to the trial court for more specific findings pursuant to the statutory scheme and the Rules of Civil Procedure.

On appeal, the Cabinet raised only one issue and that was the trial court erred in finding that the Cabinet was required to amend its permanency goal in the district court from reasonable efforts/reunification to termination/adoption prior to the filing of a petition to terminate the parents’ rights. “We agree with the Cabinet that there is no such requirement in the termination of parental rights statute. Under KRS625.090(3)(c), the court can make its own concurrent finding as to reasonable efforts, so while it would be better for the Cabinet to be consistent in its planning and proceedings, such a finding by the district court is not a necessary precedent to a termination petition. More important, however, is the fact that nowhere did the circuit court make any finding or conclusion that would support termination of parental rights. The court’s conclusions of law were couched in conditional language” which means that the parents have another chance to cooperate with the Cabinet and have their children restored to them.

Judge Guidugli’s opinion concurs in results and point out that the entire appeal should have been dismissed since KRS 625.110 “ clearly states that the denial of an involuntary termination of parental rights cannot be appealed.”

ELLISON V. THE ENSIGN-BICKFORD CO.
WORKERS COMPENSATION - Products Liability and Exclusive Remedy
2004-CA-001626
NOT PUBLISHED (COA)
AFFIRMING (SCHRODER)
DATE: 4/7/2006

The Court of Appeals affirmed the summary judgment of the Circuit Court dismissing Ensign-Bickford Company in this products liability action. The Court upheld the finding that there was no issue of material fact that the undetonated charge which Larry Ellison hit with his shovel while working was the responsibility of the manufacturer. Instead, the mine where the plaintiff worked employed certified blasting specialists, who were at fault for negligently installing the explosives. Where an employer is negligent, a worker’s sole remedy is worker’s compensation.