JULY 6, 2007 KENTUCKY COURT OF APPEALS DECISIONS (2006:33)
MINUTES from AOC for this week saved at our site and click here for the AOC's Official Minutes [which is provided for backup purposes].
Nos. 705-724; 20 rendered decisions with 5 published and 3 reversed, remanded and/or vacated
PUBLISHED (COA).
CUMMINGS V. COVEYThis appeal had it's genesis in a dispute over an estate administration. Cummings (children of Covey) obtained the removal of their mother Covey as executrix of their grandmother Shirley Cummings' estate. A jury returned a verdict finding that Covey had indeed breached her duties as executrix, but ordered her to repay the estate only $3,826.00, far less than the amount sought. Don Cummings et. al. brought a motion pursuant to KRS 412.070 seeking $10,000 in attorney fees, over and above the judgment. The
Although the trial court granted appellant's motion by awarding attorney fees of $8,000.00, the trial court effectively limited that award by allowing recovery of the fee only from the funds recovered from the Appellee, Peggy Ann Covey pursuant to a judgment already awarded against her in the sum of $3826.00.
Appellant appealed, and COA AFFIRMED the trial court's award.
Kentucky has long followed the “American Rule,” that in the absence of a statute or contract, attorney fees are not allowable as costs, nor recoverable as an item of damages.
(see, eg., Dulworth & Burress Tobacco Warehouse Co. v. Burress, 369 S.W.2d 129 (Ky. 1963); Holsclaw v. Stephens, 507 S.W.2d 462 (Ky. 1973), disapproved on other grounds by Jacobs v. Lexington-Fayette Urban County Government, 560 S.W.2d 10 (Ky.
1977)).
KRS 412.070(1) is clear on its face. By using the mandatory term “shall,” the statute unequivocally requires that attorney fees awarded under this statute must be
paid from the funds recovered. “Shall means shall.” Vandertoll v. Commonwealth, 110 S.W.3d 789, 796 (Ky. 2003).
Though there are a few cases indicating that a trial court may have the discretion to award attorney fees in certain situations beyond the general rule, acting in equity. Kentucky State Bank v. AG Services, Inc., 663 S.W.2d 754 (Ky. App. 1984) and Flag Drilling Co., Inc. v.
Erco, Inc., 156 S.W.3d 762 (Ky. App. 2005), the COA noted that exactly what circumstances would justify this exception to the general rule have never been spelled out.
In short, KRS 412.070(1) sets forth specific situations in which attorney fees may be awarded in suits “for the settlement of estates,” and only “out of the funds
recovered.” It does not in any way authorize the award of a separate fee against a wrongdoer, beyond the amount of the recovery.
COA concluded it had no latitude to decide, even if it might seem equitable, to do what the statute does not permit.
The judgment of the Clinton Circuit Court is affirmed
By Michael Stevens
The Court upheld the lower Court’s decision to not compel arbitration as the contract required the use of Tennessee law. Tennessee law dictates that a claim of fraud in the inducement of the contract as a whole may be litigated in state court and should not have the arbitration clause compelled.
Digested by Paul Schurman
WILSON V. COM.In 2-1 decision, CA reversed TC's denial of Defendant's motion to suppress evidence seized following his alleged consent to search.
The circuit court relied solely upon the testimony of Det. Conley in reaching the conclusion that Wilson consented to a search of the entire building. However, the evidence does not support this conclusion. First, although Wilson gave at least a limited consent to search the building, there were no exigent circumstances (such as an odor emanating from a possible meth lab) necessitating an immediate search while he was on his way back from his business trip. Certainly there were no circumstances that would justify scaling a wall to obtain access to Wilson's personal space upstairs. Second, there was no other proof or confirmation regarding the scope of Wilson's consent, either from another police officer or from a signed consent form. Third, if Wilson had consented to a search of the entire building over the telephone, there would have been no need for Det. Conley to obtain a search warrant once they found the suspected drugs and paraphernalia in the cigar box in Wilson's living area. While Det. Conley testified that consent is sometimes withdrawn, necessitating a search warrant, it is undisputed that Wilson was not there to withdraw his consent. Therefore, there was no need to seek a warrant at that particular time. The Commonwealth's argument that Wilson was cooperative upon his return has no bearing on the extent of his initial consent, as the police had obtained a warrant by that time and Wilson was complying with the terms of the warrant.
Based upon the totality of the circumstances, it is clear that the Commonwealth did not prove by a preponderance of the evidence that Det. Conley obtained a valid consent to search the entire building. It is this Court's belief that the warrantless search of Wilson's living area was conducted without his consent and therefore the evidence obtained during that search must be excluded as fruit of the poisonous tree.
Note: This is a surprising decision in that a majority of the CA appears to have decided that the testifying officer lied about receiving consent to search the entire building. Normally, a police officer wins any "he said she said" battle with a defendant.
By Scott Byrd @ www.OlginandByrd.com
RHODES V. PEDERSONWife’s daughter, also the personal representative of Wife’s estate, appealed TC’s order dismissing Wife and Husband’s dissolution action and denying her motion to be substituted as a party and to revive the dissolution action. The primary issue was whether TC could and should have entered a nunc pro tunc decree dissolving the marriage after Wife’s death and allowing her portion of the marital property and past due temporary maintenance payments to go to her estate. CA affirmed.
In April 2004, TC awarded Wife $6000 per month in temporary maintenance and ordered the sale of Husband’s business and the parties’ vacation home, noting that both constituted marital property. About one month later, Wife died. A few days after her death, TC entered an order noting Wife’s reported death the previous day and abating all orders requiring future action, including the sale of the marital assets. Subsequently, TC found that the real party in interest was Wife’s estate and provided the estate thirty days to enter an appearance for any matters pertaining to the claims of or against the estate. In August, Daughter notified TC that she was the personal representative of Wife’s estate and that she intended to revive the action.
Daughter argued that TC had already decided to dissolve the parties’ marriage and divide the property, and therefore, it erred when it failed to revive the action, to enter a decree of dissolution, or to equally distribute the marital property. She urged the application of principles of equity to prevent an injustice from occurring. She also contended that Wife’s right to maintenance had vested at the time of her death, despite Husband’s attempt to terminate this obligation. However, she backed her contentions with only one 1897 case involving a bigamous marriage.
CA noted that all of the remaining case Kentucky law clearly stands for the proposition that a divorce case is strictly personal, and that all other issues attending thereto are terminated upon the death of either party. The law is clear that only after a decree in divorce is granted, or perhaps a written separation agreement has been entered into by the parties, can the court continue to litigate the attending issues, including the equitable distribution of property. Only after a decree in divorce is granted, and thereafter one of the parties dies, can the court continue with the equitable distribution of marital property. If, on the other hand, TC had entered a decree, or if the judicial function had terminated without the formal entry of a decree, the death of a spouse would not affect the matter. CA noted one unpublished case in which CA approved entry of a nunc pro tunc order, but in that case, TC had orally granted a decree but the death occurred before the written decree could be prepared and signed. In that case, CA noted that the entry of the nunc pro tunc decree was proper to give the court's judicial act its proper meaning and effective date.
CA noted that there may remain other avenues of relief for Daughter, as existing orders for maintenance and property distribution may be pursued in a different forum. In essence, TC lost jurisdiction of the subject matter upon Wife’s death. CA provided that the nunc pro tunc rule may be used to make the record speak the truth, but not to make it speak what it did not speak but ought to have spoken.
By Michelle
Eisenmenger Mapes with www.Louisvilledivorce.com
The retiree/appellant
appealed a circuit court order denying him declaratory relief and affirming the decision of the Board of Trustees of the Kentucky
Retirement Systems. Affirmed.
During counseling, Lawson executed Form 6010, and selected “life with 15 years certain” as the benefit payment option
for his retirement benefits. Although he realized his error shortly after the
August 2, 2004 meeting where he had made the election, Lawson did not contact Retirement Systems to
change the payment option until September 16, 2004. At that time, a Retirement Systems employee explained that the payment option could not be changed because Lawson's first retirement check had been issued by the state treasurer. Lawson opined he had not yet
received his first retirement check and sought a hearing to appeal Retirement Systems' decision.
COA rejected Lawson's assertion that he was misled to believe he had until September 27, 2004, to change his payment option.
Despite Lawson's protestations, KRS 61.590(3)
is not vague or ambiguous, and provides (emphasis added):
The member or beneficiary shall file at the retirement office the form entitled "Estimated Retirement Allowance" after he has checked the plan of his choice, signed the document and had his signature witnessed. A member or beneficiary may not select a different plan after the first retirement allowance payment has been issued by the State Treasurer.
“As long as an ordinance or statute can be reasonably understood by those affected by the ordinance and they can reasonably understand what the statute requires of them, it is not unconstitutionally vague.” Lexington Fayette County Food and Beverage Ass'n v. Lexington-Fayette Urban County Govt., 131 S.W.3d 745, 753 (Ky. 2004). KRS 61.590(3) is plainly written, an explanatory administrative regulation would be unnecessary.
By Michael Stevens
NOT PUBLISHED (COA)
NUNN V. COM.WORKS V. COM.
CRIMINAL: RCR 10.26 NOT SUBSTITUTE FOR NEW TRIAL MOTION
2006-CA-001916
NOT PUBLISHED: 76
DATE RENDERED: 7/6/2007
PAGE V. COM.
CRIMINAL: APPOINTED COUNSEL AND NOT COUNSEL OF ONE'S CHOICE
2005-CA-002475
NOT PUBLISHED: 112
DATE RENDERED: 7/6/2007
WOODARD V. CALLAHAN
CRIMINAL: PRISON DISCIPLINARY PROCEEDING, DUE PROCESS, AND GOOD TIME
CREDIT AT RISK
2006-CA-000617
NOT PUBLISHED: 85
DATE RENDERED: 7/6/2007
BARKER V. BARKER
FAMILY LAW: MAINTENANCE WITH JUDICIAL DISCRETION IF BASED ON SUBSTANTIAL
EVIDENCE
2006-CA-001397
NOT PUBLISHED: 98
DATE RENDERED: 7/6/2007
EPLING V. LIBERTY MUTUAL INS. CO.
MEDIATION & ARBITRATION: ENFORCED MEDIATION AGREEMENT OVER LIBERTY
MUTUAL'S UNILATERAL MISTAKE RE SETTLING ALL CLAIMS INCLUDING PIP (EVEN THOUGH
FORGOTTEN ABOUT PIP AT MEDIATION AND DENIED SUBROGATION)
2005-CA-001695
NOT PUBLISHED: 113
DATE RENDERED: 7/6/2007
LEWIS V. COUNTY OF HARLAN
SOVEREIGN IMMUNITY: COUNTY, FISCAL COURT AND STATE AGENCY IMMUNE; sovereign immunity shields “all 'departments, boards or agencies that are such integral parts of state government as to come within regular patterns of administrative organization and structure
2006-CA-002115
NOT PUBLISHED: 85
DATE RENDERED: 7/6/2007
MEADORS V. PENNINGTON BLOCK CO., INC.
WORKERS COMP: 2X MULTIPLIED AND RETURN TO WORK AND CESSATION OF EMPLOYMENT
2006-CA-002064
NOT PUBLISHED: 92
DATE RENDERED: 7/6/2007
LONG V. AHLSTROM USA
WORKERS COMP: NO SUBSTANTIAL EVIDENCE WHEN IRREFUTABLE THAT PHYSICIAN'S HISTORY
OF WORK-RELATED CAUSATION IS CORRUPT
2006-CA-002555
NOT PUBLISHED: 136
DATE RENDERED: 7/6/2007
Thanks to Scott Byrd, John E. Hamlet, Cherry Henault, Sam Hinkle, Chad Kessinger, Hays Lawson, J. Russell Lloyd, Michelle Eisenmenger Mapes, Peter Naake, Paul O'Bryan, Bryan Pierce, Paul Schurman, Michael Stevens and James Worthington for their efforts in digesting Kentucky's appellate decisions.