JULY 27, 2007 KENTUCKY COURT OF APPEALS DECISIONS (2006:36)
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. 775-797; 24 rendered decisions with 6 published and 7 reversed, remanded and/or vacated decisions.
PUBLISHED (COA).
KINDRED HOSPITALS LIMITED PARTNERSHIP V. LUTTRELLKindred appealed from the circuit court's order denying their motion to dismiss or in the alternative to stay the circuit court proceedings pending completion of alternative dispute resolution (ADR)
proceeding arguing that Susan Luttrell, Administratrix of the Estate of Altha Duncan, (the "estate") signed an ADR agreement binding her mother, Altha Duncan (Duncan) to pursue any disputes with Kindred through ADR proceedings.
The estate argues that Susan Luttrell (Luttrell) did not have the authority to enter into that agreement on behalf of Duncan; therefore, the estate is not bound by the agreement.
The COA affirmed the agreement and enforced the mandatory arbitration provision,
holding that Luttrell did not have the authority, either actual, apparent, implied, or by statute, to bind
her mother Duncan or her estate to the ADR agreement.
Luttrell signed on behalf of her mother Duncan various admissions documents upon
entering the nursing home; however, beyond believing that the documents were necessary to admit Duncan to Liberty, Luttrell testified that she did
not understand the documents she was signing. Luttrell acknowledged that she should have read the documents but did not do so. Furthermore, Luttrell testified that, even
though she did not believe she would have been able to read the documents, she did not ask anyone to read them to her.
Furthermore, the ADR agreement was not a condition to the admission, Luttrell
did not have a POA from her mother, and Luttrell had 30 days thereafter to
revoke the mandatory ADR. Luttrell testified that she did not remember if
the admission person (Debra) at the nursing home discussed the nature of the ADR
agreement with her, but it was noted that Luttrell's testimony is directly contradicted by Debra, who testified that she read the entire ADR agreement to Luttrell at the time of Duncan's admission to Liberty.
The ADR agreement states that determining the extent of permissible discovery is left solely to the discretion of the
neutral mediator and/or arbitrator. The ADR agreement does not indicate that discovery is subject to the Civil Rules, which are available to litigants in circuit court and which provide certain ground rules regarding discovery.
The Supreme Court noted that a party aggrieved by a circuit court's ruling on the applicability of an ADR
agreement could pursue relief under CR 65.07 or through the regular appeal process under CR 73. The Supreme Court noted that a party seeking relief pursuant to CR 65.07 has a high burden to meet, i.e. immediate and irreparable injury, loss, or damage pending a final judgment, and that this Court had appropriately denied Kindred's CR 65.07 motion.
The Supreme Court also held that, although a party could choose which avenue of appeal to follow, it could not pursue one path and, if unsuccessful, pursue the other. Id. at 921. However, since this was a new rule, the Supreme Court held that it would not apply to Kindred and Kindred's CR 73 appeal could move forward.
Before addressing the issues in this case, the COA reviewed the law in Kentucky
on arbitration and authority:
Kentucky law generally favors the enforcement of arbitration agreements, and “any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration . . . .” However, "the existence of a valid arbitration agreement as a threshold matter must first be resolved by the court." ADR agreements are "valid, enforceable, and irrevocable, save upon such grounds as exist at law for the revocation of any contract." KRS 417.050. With these legal principles in mind, we will address the primary issue of whether there was a valid and enforceable ADR agreement. “[O]rdinary principles of contract and agency determine which parties are bound by an agreement to arbitrate.” It is well-established in Kentucky that “[a]gency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.”
A person can grant actual authority to an agent by way of a written document such as a power of attorney, and Kindred next argues that Luttrell, when she advised Debra that she was authorized to sign the admissions for Duncan, cloaked herself with the implied or apparent authority to do so. Implied authority is actual authority circumstantially proven which the principal actually intended the agent to possess and includes such powers as are practically necessary to carry out the duties actually delegated. Apparent authority on the other hand is not actual authority but is the authority the agent is held out by the principal as possessing. It is a matter of appearances on which third parties come to rely.
The COA concluded there can be no serious argument that signing an ADR
agreement is necessary to carrying out the actual limited duties Luttrell
had, holding that Luttrell did not have implied authority to sign the ADR agreement
Kindred argues that the assertion by Luttrell that she had the authority to sign documents on her mother's behalf
have Luttrell the apparent authority to do so. However, it is the authority the agent is held out by the principal as having
that constitutes apparent authority and the agent cannot create apparent authority, absent some affirmation by the principle, simply by holding herself out as
having it. Therefore, Luttrell did not have apparent authority to sign the ADR agreement on behalf of Duncan.
The ADR agreement does not involve "health care decisions" as defined by KRS 311.621(8). It involves what method parties to the agreement can use to resolve disputes. It does not involve medical procedures, judgments, or interventions. Therefore, KRS 311.631, in and of itself, does not provide any authority for Luttrell to bind Duncan to the ADR agreement.
The COA held that Luttrell did not have the authority, either actual, apparent, implied, or by statute, to bind Duncan or her estate to the ADR
agreement.
By Michael Stevens
The defendant Alleman had accepted the Commonwealth’s offer on a plea of guilty to the charges in exchange for the Commonwealth’s recommendation of a sentence of twelve years, with the sentence probated for five
years following his indictment in Hardin County. The Commonwealth further recommended that this sentence would run consecutively with a prior sentence imposed by the Montgomery Circuit Court. The trial court sentenced Alleman in accord with the Commonwealth’s recommendation, and Alleman was released on probation on November 18, 2004.
On July 29, 2005, the trial court issued an arrest warrant for Alleman, charging him with absconding from supervision. He was arrested on that warrant on November 7,
2005. Thereafter, Alleman requested a formal probation revocation hearing, which the trial court conducted on June 20, 2006. At the conclusion of the hearing, the
trial court revoked Alleman’s probation, finding that Alleman had violated the conditions of his release. Alleman now appeals to this Court. Finding that the trial court failed to make necessary written findings of fact supporting the
revocation. REVERSED and REMANDED.
Alleman argues that the judgment did not specifically set out that he was required to report to the probation and parole offices in both Menifee and Hardin Counties. Therefore, Alleman contends that he was not given adequate notice that his failure to report in Hardin County would violate the terms of his probation.
The Hardin Circuit Court did not enter written findings of the specific conditions which Alleman violated, nor did it detail the evidence in support of this conclusion. This does not meet the Gagnon
standard. The failure of the trial court to make written findings of the grounds for revocation is an error which may be corrected by remand.
Accordingly, the order of the Hardin Circuit Court revoking Alleman’s probation is reversed and this matter is remanded to the trial court for written findings of fact.
By Michael Stevens
MCSTOOTS V. COMMONWEALTHMcStoots was 16 years old when he entered a plea agreement in 1995 where in exchange for his guilty plea to the charges, the Commonwealth recommended sentences of life imprisonment without parole for twenty-five years on each count of murder and ten years on the robbery charge.
He now contends that his plea agreement and sentence should be re-evaluated in light of the recent decision by the United States Supreme Court in Roper v. Simmons, 543 U.S.
551 (2005)(unconstitutional under the Eighth Amendment for a state to execute any individual who was under the age of eighteen at the time of the offense.).
In justifying the prohibition of the death penalty on those less than eighteen years of age, the Court pointed to juveniles’ lack of maturity, underdeveloped senses of responsibility and judgment, and susceptibility to peer pressure
and negative influences. Id. at 569-72. Based on these considerations, the
SCOTUS concluded that juveniles lack the culpability necessary to be subject to the death penalty.
Although, COA agreed with McStoots that the Roper
decision represents a substantive change in the law which must be applied retroactively to all cases in which the death
penalty was imposed on an individual who was under the age of eighteen at the time he committed the offense. Bowling v. Commonwealth, 163 S.W.3d 361, 370 (Ky.
2005), it did not agree that the new rule applies retroactively to all cases in which a juvenile was charged with a capital offense, or where the death penalty was sought but not imposed. To the contrary, the holding in Roper was specifically limited to death sentences, not to all sentencings of juveniles in capital cases.
Generally, a plea cannot be automatically rendered involuntary by a subsequent change in the relevant law.”
Consequently, McStoots has failed to provide any factual or legal basis for relief from his sentence under CR 60.02 or RCr 11.42.
Affirmed.
By Michael Stevens
The hearing officer is not permitted to "cherry pick" the medical evidence. Although the Social Security Disability determination can be considered it is not determinative of the state disability retirement determination since the state agency is not bound by that determination.
On appeal, Ledford contended the evidence “overwhelmingly demonstrates that [she] met the requirements of the statute to be granted disability retirement benefits . . . .” The objective medical evidence in the record supports this conclusion. The hearing officer clearly erred by rejecting the objective medical evidence submitted by Ledford’s treating physicians in favor of the subjective and unsupported opinions of the medical review physicians.
COA further found that the hearing officer failed to consider the environmental factors in Ledford’s workplace in determining her residualfunctional capacity. Since the evidence which Ledford presented was so overwhelming that no reasonable person could have failed to be persuaded by it, the Board clearly erred by denying Ledford’s application.
The COA reversed and remanded for entry of an award of disability retirement benefits.
By Michael Stevens
This appeal arose from a paramedic's suspension by physician director who would not allow the paramedic to "perform work in any capacity that requires use of my medical license.” Trial court granted summary judgment dismissing the wrongful discharged for wrongful termination claim and this appeal followed.
COA held that Brumbach, as a paramedic, is not entitled to
relief for his claim of wrongful discharge; KRS 311A.170(4) specifically provides that “[a] paramedic shall be permitted to render services only under the supervision of an emergency medical services medical director.”
KRS 311A.010(12) defines an emergency medical services medical director as “a physician licensed in Kentucky who is employed by, under contract to, or has
volunteered to provide supervision for a paramedic or an ambulance service, or
both.”
In the absence of a specific contractual provision to the contrary, employment in Kentucky is terminable at-will, meaning that an employer may ordinarily discharge an employee “for good cause, for no cause, or for a cause that some might view as morally indefensible.”
The mere termination of employment and the resulting embarrassment do not rise to the level of outrageous conduct and resulting severe emotional distress
necessary to support a claim for intentional infliction of emotional
distress.
By Michael Stevens
Rolan G. Taylor Funeral Home, Inc., appeals from an order of distribution of the Clark Circuit Court.
The COA determined that the circuit court erroneously based its decision on an invalid Judgment Lien in awarding assets to non-parties. Therefore,
COA vacates and remands.
Ms. Rose was convicted and the state obtained a judgment lien on her real property owned by Ms. rose at French St. for $19,500 to secure the restitution owed (1999). She died and the funeral home sued her son on the funeral bill and obtained a judgment lien on all real estate that the son had an interest (2002). In a third action, the Cabinet for Health and Family Services as guardians was awarded punitive damages against the estate for $38,000 in punitive damages (even though Kentucky does not permit punitive damages against a deceased defendant) and filed the second lien against the property on French Street (2004).
The Commonwealth declined to present a claim on
its lien so that lien became wholly unenforceable per KRS 532.164(4). “The attorney for the Commonwealth, and not the crime victim [the Guardian here] shall prepare and file lien documents for moneys to be restored to the crime victim.” (Emphasis added.) In this case, the Cabinet stood in the shoes of the crime victim. As such, the Cabinet’s counsel was not an attorney for the Commonwealth for purposes of the statute. Thus, the Cabinet did not have standing to file the lien initially or to enforce it after it had been abandoned by the Commonwealth.
In this case, the Clark County Commonwealth's attorney was the real party at interest in the criminal proceeding, the party who bore the burden of preparing the judgment lien on behalf of the crime victims [i.e., the daughters of Houston Osborne through their Guardian the Cabinet].
The Cabinet as Guardian had filed its own judgment lien in 2004. As aptly noted by the appellant, there was no need for the Guardian to file the 2004 lien if it believed that it was entitled to rely on the
Commonwealth's 1999 lien to satisfy its claim. In the meantime, Taylor had filed its 2002 judgment lien – arguably temporally inferior to the 1999 lien but superior to the 2004 lien of the Guardian.
When the Commonwealth of Kentucky released its 1999 judgment, the next valid lien of record assumed priority. That superior lien was the 2002 judgment lien filed
by Taylor to recover funeral expenses and thus had priority as to the distribution of the proceeds of the sale to satisfy its claim.
By Michael Stevens
NOT PUBLISHED (COA)
SHECKLES V. KENTUCKY DEPT. OF CORRECTIONSPARRISH V. ROBERT POPPY CONSTRUCTION AND
EXCAVATING LLC
BUSINESS LAW: CONTRACT DIVISIBILITY; SUBSTANTIAL PERFORMANCE
2006-CA-000688
NOT PUBLISHED: 119
DATE RENDERED: 7/27/2007
LOVELESS
V. RINGSTAFF
CIVIL PROCEDURE: SUMMARY JUDGMENT STANDARD AND "IMPOSSIBLE"
TORTS: NEGLIGENCE ELEMENTS; PREMISES LIABILITY; DOMESTIC ANIMALS
2005-CA-000860
NOT PUBLISHED: 95
DATE RENDERED: 7/27/2007
LEWIS V. COM.
CRIMINAL: CR 60.02 MOTION; AFFIDAVIT
2006-CA-001304
NOT PUBLISHED: 111
DATE RENDERED: 7/27/2007
FLEET V. WEBB
CRIMINAL: PRISON DISCPLINE (SOME EVIDENCE)
2006-CA-000625
NOT PUBLISHED: 75
DATE RENDERED: 7/27/2007
VANHOOK V. BRITTHAVEN OF SOMERSET, INC.
EMPLOYMENT LAW: HEALTH CARE PROVIDERS DUTY TO REPORT PATIENT SAFETY IN
JEOPARDY; RETALIATION
2006-CA-001163
NOT PUBLISHED: 90
DATE RENDERED: 7/27/2007
WATSON V. SMITH
REMEDIES: INJUNCTIVE RELIEF AND TRESPASSING STRUCTURES
2006-CA-001046
NOT PUBLISHED: 82
DATE RENDERED: 7/27/2007
LOONEY
V. BERK & JONES, PLLC
TORTS: LEGAL NEGLIGENCE AND SOL; REPLEVIN ACCRUAL FOR SOL; CONTINUOUS
REPRESENTATION RULE
2005-CA-002618
NOT PUBLISHED: 86
DATE RENDERED: 7/27/2007
KY CONTAINER SERVICES, INC. V. ASHBROOK
WORKERS COMP: EMPLOYER'S CONDUCT, STATUTE OF LIMITATIONS, AND TOLLING
2006-CA-002299
NOT PUBLISHED: 126
DATE RENDERED: 7/27/2007
DANA CORP. V. ADAMS
WORKERS COMP: STATUTE OF LIMITATIONS AND FILING
2007-CA-000579
NOT PUBLISHED: 103
DATE RENDERED: 7/27/2007
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.