Vol. 2006:20 - COURT OF APPEALS DECISIONS FOR April 21, 2006

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PUBLISHED (COA) 

None.

NOT PUBLISHED (COA) .

RICHARDSON V. NICHOLS
APPEALS - Reconsideration  Dismissed
2004-CA-002071
NOT PUBLISHED 
DISMISSING; TAYLOR, J. (BARBER CONCURRING IN PART, DISSENTING IN PART AND FILING SEP. OP.)
DATE:  4/21/2006

This appeal bounced from an original dismissal, to a grant for reconsideration, and now to the opinion that the COA 'erred by reconsidering our earlier opinion and thus now dismiss this appeal again . . . ."

WOLFORD V. LOUISVILLE AND JEFFERSON CO. METROPLITAN SEWER DISTRICT
CONDEMNATION  
2005-CA-000508
NOT PUBLISHED 
AFFIRMING; TAYLOR, J.
DATE:  4/21/2006

The Louisville and Jefferson County Metropolitan Sewer District (“MSD”) initiated an eminent domain action against Richard and Jackie Wolford (the “Wolfords”) to obtain an easement along the Wolfords’ twenty-five acre tract of property and Interstate 64. The Woldfords utilized the property as a nursery and during the Sewer District’s installation of a forced main sewer bamboo was destroyed. The Wolfords sought to introduce an expert opinion as to the property’s fair market value. The Jefferson Circuit Court excluded the proffered testimony because it constituted “price tagging.” As a result, the only evidence upon the fair market value of the property taken was that offered by MSD. The court entered an order concluding that the fair market value of the land taken was $15,936.00. The Wolfords appealed.


The court of appeals affirmed, finding that the expert impermissibly engaged in “price tagging” by separately valuing the nursery and land to arrive at a fair market value. Citing to its opinion in Big Rivers Electric Corporation v. Barnes, 147 S.W.3d 753 (Ky. App. 2004), the court disavowed price tagging, stating that “the testimony of the difference in market value should be stricken where a witness arrives at an ‘after’ value by itemizing various damage factors and subtracting the total from the ‘before’ figure.” Rather, fair market value should be determined by using the highest and best use concept which provides that minerals and other items may be considered but may not be “items of damage to be priced and totaled.” Instead of considering the nursery stock as a separate element of damage to be added to the fair market value of the land, the expert should have simply rendered an opinion as to the fair market value of the land as a nursery. 

CRABTREE V. COM.
CRIMINAL 
2003-CA-000797
NOT PUBLISHED 
AFFIRMING; COMBS, J.
DATE:  4/21/2006

HAZELWOOD V. COM.
CRIMINAL 
2004-CA-002232
NOT PUBLISHED 
AFFIRMING; MCANULTY, J.
DATE:  4/21/2006

HUGHES V. COM.
CRIMINAL  - RCr 11.42 denial
2005-CA-000385
NOT PUBLISHED 
AFFIRMING; HUDDLESTON, J.
DATE:  4/21/2006

PAGE V. LARGE
FAMILY LAW - Child support 
2005-CA-000675
NOT PUBLISHED 
AFFIRMING, REVERSING AND REMANDING; DYCHE, J.
DATE:  4/21/2006

BENNETT V. BENNETT
FAMILY LAW - Child support (disability benefits paid directly to disabled child)
2005-CA-000115
NOT PUBLISHED 
AFFIRMING; DYCHE, J.
DATE:  4/21/2006

As the monthly benefit received because of custodial parent’s disability and paid directly to the parties’ child was considered that child’s independent source of income, and “not to be counted as income to either parent when calculating a child support obligation,” as required by KRS 403.211(14) TC did not incorrectly allow a credit against non-custodial/non-disabled parent’s monthly obligation.

JOHNSON V. JOHNSON
FAMILY LAW  - Maintenance (award was abuse of discretion)
2005-CA-000315
NOT PUBLISHED 
AFFIRMING; KNOPF, J.
DATE:  4/21/2006

TC did not abuse its discretion in awarding lifetime maintenance to Wife despite the facts that Wife had some income-producing nonmarital property and marriage lasted only eight years.  Wife was unable to work due to disability and her receipt of disability income and income from property were clearly insufficient to meet the reasonable needs as measured by the lifestyle developed during the marriage.  Due to her disability, there was no evidence that Wife would or could be employable.  Thus, TC’s award of lifetime maintenance was not abuse of discretion, though evidence may have supported award of shorter duration.

Although Commonwealth imperfectly complied with requirements of KRS 61.880(1), Open Records Statute, there was no substantive error in denial of request because grand jury records are specifically exempted from the statute.

COA held circuit court was correct that the roadway was not abandoned under common law principles.

TC properly granted summary judgment in Wal-Mart’s favor on Boggs' claim of false imprisonment.  In order to recover under a theory of false imprisonment, a plaintiff "must establish that he was detained and that the detention was unlawful."  Wal-Mart Stores v. Mitchell, 877 S.W.2d 616, 617 (Ky.App. 1994).  Further, "it is essential that there be some direct restraint present.  Restraint constituting a false imprisonment may arise out of words, acts, gestures, or the like, which induce a reasonable apprehension that force will be used if the plaintiff does not submit." Ford Motor Credit Co. v. Gibson, 566 S.W.2d 154, 155 (Ky.App. 1977).  Boggs has offered no evidence that Brown intended to confine him.  Further, Boggs was not deprived of freedom of action.  Viewed in the light most favorable to Boggs, this scenario simply does not support a false imprisonment claim.

TC erred by granting summary judgment in Wal-Mart’s favor on his claim of defamation.  CA set forth the elements of a defamation action in Columbia Sussex Corp. v. Hay, 627 S.W.2d 270, 273 (Ky.App. 1981), as follows: (1) defamatory language; (2) about the plaintiff; (3) which is published; and (4) which causes injury to reputation. Here, Wal-Mart argues that there was no defamatory language used, since Brown merely stated that the manager thought he had seen tags hanging from Boggs’s jacket. However, when viewed in the light most favorable to Boggs, these words clearly could be construed as constituting defamatory language about him in that they accuse him of stealing the jacket.  Further, there is no dispute that Brown’s words were about the plaintiff; moreover, the language was published when it was uttered in front of Long. Finally, because Brown’s words imputed the criminal act of shoplifting, Boggs has made out a case of slander per se, which carries with it a presumption of malice and damage and does not require Boggs to prove injury to his reputation.

As this matter is being remanded on Boggs’s claim of defamation, the circuit court’s summary judgment in Wal-Mart’s favor as to Boggs’s claim for punitive damages must be set aside.

CA affirms TC dismissal of employee's claims of bad faith against employer and insurer in defending a tort action arising from employee's negligent driving.

In 1998, appellant fell asleep at the wheel while driving his personal car after hours (but returning some work keys) and struck an oncoming car. Cincy Insurance (CIC) defended appellant's employer, but not appellant; appellant was represented by an attorney hired by appellant's liability carrier. Employer filed a cross-claim denying that appellant was operating within the scope of his employment. After a ruling that appellant was acting within the scope of employment, employer voluntarily dismissed this cross-claim and assumed appellant's defense. The underlying tort action was then settled. Subsequently, the plaintiffs filed a bad faith suit against CIC; they were ultimately awarded $28 million, which is currently on appeal. Appellant then sued his employer and CIC for bad faith, fraud, wrongful use of civil proceedings and outrage. The TC ultimately dismissed this action.

On appeal, appellant argues that the TC erred in denying him the opportunity to take discovery and then dismissing for insufficient evidence. CA holds no error as no amount of evidence would aid in resolution of the matter in appellant's favor.  Further, CIC did eventually provide appellant with a defense and settled the claims against him.

TRAUTMAN V. DEBANDI
TORTS - Medical negligence 
2004-CA-001972
NOT PUBLISHED 
AFFIRMING; DYCHE, J.
DATE:  4/21/2006

COA affirms TC's grant of Summary Judgment to the Defendants on Trautman's medical malpractice claim that she and her husband filed pro se for their alleged negligence in leaving a stent in her bladder for too long. Defendants responded that the stent had, in fact, been removed 9 years before the lawsuit was filed, not merely 1 year as the Trautman's claimed. COA ultimately upheld the TC since the Trautman's failed to provide any proof that the Defendants violated the applicable standard of care.

WALDEN V. COM.
WORKERS COMPENSATION 
2005-CA-002390
NOT PUBLISHED 
AFFIRMING; MINTON, J.
DATE:  4/21/2006

NORWOOD V. NORTH STAR STEEL OF KENTUCKY
WORKERS COMPENSATION 
2005-CA-002392
NOT PUBLISHED 
AFFIRMING; MINTON, J. 
DATE:  4/21/2006

WCB had not committed an error of claimant suffer an injustice.  Affirmed

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,  Paul Schurman, Michael Stevens and James Worthington for their efforts in digesting Kentucky's appellate decisions.