AUGUST 31, 2007 KENTUCKY COURT OF APPEALS DECISIONS (2006:42)
PUBLISHED (COA).
MEYERS V. PETRIEThe family court held Meyers in contempt for violating a
provision of a Domestic Violence Order (DVO) that required Meyers to attend domestic violence counseling.
As punishment for his contemptuous behavior, the family court ordered Meyers to complete domestic violence counseling. On appeal, Meyers argues that he only had a duty to comply with the DVO as long as it remained in effect, and, once the DVO had expired, the family court lacked the authority to extend the DVO's provisions past its expiration date to require Meyers to complete the previously-ordered counseling. Finding that the family court properly exercised its contempt power,
the COA affirmed.
The family court acknowledged that the DVO had previously expired but noted that it had issued the show cause order prior to the DVO's expiration date. Consequently, the family court determined that it continued to have jurisdiction over Meyers' contemptuous behavior.
When a court exercises its contempt powers, it has nearly unlimited discretion. Smith v. City of
Loyall, 702 S.W.2d 838, 839 (Ky.App. 1986). Consequently, the COA will not disturb a court's decision regarding contempt absent an abuse of its discretion.
When Meyers refused to attend counseling, he refused to obey one of the family court's orders, thus, committing civil contempt. However, Meyers' conduct not only constituted civil contempt, but it also constituted criminal contempt. By willfully defying the DVO, Meyers demonstrated great disrespect for the family court, bringing the
family court into disrepute and degrading its authority a court not only has the right but also the duty to protect its authority and dignity against contemptuous
conduct. Marcum v. Commonwealth, 272 Ky. 1, 113 S.W.2d 462, 466 (1938).
COA concluded when the family court sentenced Meyers to complete domestic violence counseling, it was not attempting to enforce the defunct DVO but was properly exercising its contempt powers.
This was was not an abuse of discretion.
By Michael Stevens
Based upon the totality of the circumstances, TC did not commit clear error in finding Williams’ guilty plea to have been validly entered, and the TC did not abuse its discretion in overruling the motion to withdraw the guilty plea. Because the theory of error being advanced on appeal was never argued to the trial court, it is not preserved for appellate review and CA declined to address it now. While it is true that Williams sent a letter to the court, the reasons given in that letter for wanting to withdraw the plea had nothing to do with confusion over the crime to which he had pled guilty or whether the trial court had established a factual basis for the plea. Williams wrote that he felt he had no choice but to plead guilty because his attorney had told him he would lose if he went to trial. Similarly, at sentencing, when the trial court asked Williams to explain why he wanted to withdraw his guilty plea he voiced two reasons, but neither was related to his current allegation. The first was that he felt he had no choice but to plead guilty and the second was that he felt it was unfair for him to be charged with this particular crime when others who commit far worse behavior are charged with the same crime. Neither Williams’ letter nor his verbal request suggested to the trial court that his guilty plea was involuntary because he was confused about the crime to which he was admitting guilt or that the trial court had failed to establish a factual basis for the plea.
Digested by Scott C. Byrd - Olgin and Byrd
www.olginandbyrd.com
CA reluctantly reversed Robinson's convictions and sentence for three counts of complicity to commit third-degree rape and remanded for further proceedings consistent with the Supreme Court's opinion in Robinson v. Commonwealth, 212 S.W.3d 100 (Ky. 2006). CA affirmed her convictions and sentence for complicity to commit second-degree rape.
CA held it was bound by SC decision in co-defendant's case and must recognize the marriage between Robinson and S.H. as valid. SC reversed the principal's convictions on the basis that no offense was committed after the marriage, finding that the TC erred when it denied the request for an instruction under KRS 510.035. That statute provides:
A person who engages in sexual intercourse or deviate sexual intercourse with another person to whom the person is married, or subjects another person to whom the person is married to sexual contact, does not commit an offense under this chapter regardless of the person's age solely because the other person is less than sixteen (16) years old or mentally retarded.
The commission of an underlying offense by another person is clearly an element of complicity. KRS 502.020. Because the Supreme Court has reversed Robinson's conviction for any sexual offenses based on S.H.'s age that occurred after the marriage, appellant's convictions must likewise be reversed. Therefore, CA reversed appellant's convictions for three counts of complicity to commit third-degree rape which occurred after the marriage.
Note: rule of thumb - If you plan on pimping your underage daughter to your boyfriend, make sure they are married first before having sexual relations.
Digested by Scott C. Byrd - Olgin and Byrd
www.olginandbyrd.com
Ex-husband appealed order of TC requiring him, pursuant to KRS 403.220 and CR 37, to pay $8,500 of attorney fees to Ex-wife, claiming that TC failed to consider the financial resources of both parties as required by KRS 403.320 and that CR 37 and the holding of Lampton v. Lampton, 721 S.W.2d 736, 739 (Ky. App. 1986) were inapplicable to the facts of his case.
When Ex-Wife initially filed her Petition for Dissolution, she was unaware of Ex-Husband’s address. She therefore attempted service through a Warning Order attorney. Darren resided in Utah, was a member of the Air National Guard, and unknown to Ex-Wife, was stationed in Iraq at the time she filed for divorce. The Warning Order Attorney filed his report and, subsequently, a default hearing was held, resulting in TC’s issuance of findings of fact, conclusions of law, and decree of divorce. Ex-Husband then filed a Motion to Alter, Amend or Vacate this Order on the basis that Ex-Husband had not been properly served. TC granted the motion, Ex-Wife served Ex-Husband through Secretary of State, and new trial was held. TC divided property and debts and ordered Husband to pay $8,500 of Ex-Wife’s attorney fees.
Ex-Husband first contended that TC failed to consider the financial resources of the parties before awarding attorney's fees to Ex-Wife. CA noted that although a trial court is not required to make specific findings on the parties' financial resources, TC must consider the financial resources of the parties before ordering an award of attorney’s fees. Further, KRS 403.220 requires a showing of an imbalance in the financial resources of the respective parties. In this case, TC expressly stated that no evidence was submitted concerning the parties' financial resources, requiring the court to make assumptions from evidence submitted regarding the financial circumstances at the time of the marriage as to the status of their financial resources at the time of trial, though the parties had been separated for over 3 years and divorced for 2 years. CA held that the financial situations of the parties during their marriage were too remote in time for the court to make such a finding based on this evidence, and TC abused its discretion in making award of attorney fees without first considering the parties' financial resources at the time that the court entered its order. CA vacated attorney fee award under KRS 403.220 and remanded issue to TC.
Ex-Husband next asserted that TC erred by basing the attorney fee award on the case law of Lampton and CR 37, as they are inapplicable to a party's failure to voluntarily submit to personal jurisdiction. CR 37, which is titled "Failure to Make Discovery; Sanctions," permits a court to award attorney's fees as a sanction against a party who fails to conduct discovery or abide by discovery rules. In Lampton, CA implied that an award of attorney's fees under CR 37 is appropriate if the award is motivated by the party's obstruction of and refusal to cooperate with discovery. In this case, TC provided that an award of attorney's fees under CR 37 was appropriate due to Ex-Husband’s irresponsibility with regard to the parties' financial matters. CA held that this reasoning had no connection to discovery proceedings in the case. Furthermore, Ex-Husband’s failure to submit to TC’s jurisdiction despite his knowledge of the case also held no connection to CR 37 nor merited an award of attorney fees under any rule or statute, as there is no requirement in Kentucky that a defendant submit to the court’s jurisdiction once he gains knowledge of the action. CA reversed any portion of the attorney fee award based on CR 37.
Ex-Husband also alleged that if TC had the authority to award attorney's fees in this case, the reasonableness of the fees awarded was improperly analyzed by TC. CA held this claim to be moot as it had vacated the award.
Digested by Michelle
Eisenmenger Mapes
Diana
L. Skaggs + Associates
Digested by Michelle
Eisenmenger Mapes
Diana
L. Skaggs + Associates
By Paul O'Bryan
O'Bryan & Denbow
This was the case involving the govenor's appointment of Murray State University regents from the second list of names. In a case of statutory interpretation, the COA concluded the Governor is authorized by law to act as he did.
By Michael Stevens
The Standard Fire Insurance Company appealed from a summary judgment in which Standard was ordered to indemnify Empire Fire and Marine Insurance Company in the amount of $19,870.44, plus attorney fees and costs incurred in the settlement of third-party personal injury claims arising from an automobile accident.
COA affirmed.
Standard had issued an insurance policy to the Kaelins on a 1999 Honda Accord,
which the Kaelins had leased from Wells Fargo. When the Kaelins defaulted
on the lease, Imperial Recovery went out to repossess it. However,
the Kaelins gave Imperial the keys to Richardson, the Imperial's driver,
who had an accident on the way back to the storage facility. Empire issued a garage policy to Imperial
R which provided coverage for any “non-owned autos used in your garage business,” which business included the repossession of automobiles.
Richardson was at fault in causing the two-vehicle collision, and both insurance policies, that issued by Standard to the Kaelins and that issued by Empire to Imperial, remained infull force and effect on the date of the accident.
Empire settled with the injured driver and sought indemnity from Standard.
COA addressed three separate issues. First, did Standard’s policy provide coverage to Richardson for this accident? Second, did
Empire’s policy provide such coverage? Third, if both policies apply, which policy is primary?
First, Richardson clearly had “a reasonable belief” that he was entitled to drive the
Honda, and, in fact, he had implied permission from both Imperial and the Kaelins
to drive the car. Imperial had given him clear instructions to repossess the automobile, and there is no evidence that he varied from his instructions by driving the vehicle instead of transporting it on the truck. Once
he arrived at the Kaelin residence, they gave him the keys. Therefore,
Richardson had a “reasonable belief” that he was entitled to drive the 1999 Honda and that Standard's insurance policy did apply and
provided liability coverage to Richardson at the time of this accident.
Empire admits that its policy provided coverage for this accident. Such coverage is the reason Empire paid the settlement claims in the first place. Therefore,
both the Standard and the Empire policies apply in this case.
Kentucky law is well established that, “[w]hen the contest is between two insurers, the liability for a loss should be determined by the terms and provisions of the respective policies. . .” Chicago Ins. Co. v. Travelers Ins. Co., 967 S.W.2d 35, 37 (Ky.App. 1997) (quoting State
Farm Mutual Automobile Ins. Co. v. Register, supra., at 706-707.) “Furthermore, where the terms of an insurance policy are clear and unambiguous, the policy should be
enforced as written.” Chicago Ins. Co., supra, at 37. Thus, this Court will look to the strict language of the insurance policies in determining which coverage is primary, rather
than to public policy.
Although the Kaelins could have cancelled the policy at time
of repossession, they had not. Thus the vehicle was an "owned"
rather than a "non-owned" vehicle with coverage provided by Standard.
Kentucky law is well settled that when a policy containing a pro rata “other insurance” clause conflicts with a policy having an excess “other insurance” clause, the policy with the pro rata provision should be applied first and the policy with the excess clause would become effective only when the first policy is exhausted. Hartford Ins. Co. v. Kentucky Farm Bureau Ins. Co., 766 S.W. 2d 75 (Ky. App. 1989).
Pursuant to the terms of the two insurance policies, Standard's policy provides the primary liability insurance for this accident and Empire’s policy provides only excess coverage. Therefore, Empire is entitled to reimbursement from Standard for the sums it paid on behalf of its insured to the injured parties.
Therefore, Empire is entitled to reimbursement from Standard for the amount of its settlement of those claims, as well as its costs and fees incurred.
As an FYI, Judge Tom Wine was the trial judge who granted summary judgment in this matter.
By Michael Stevens
In this lawsuit, the decedent was suspected of lymphoma and underwent surgery to remove it. Complications developed and the decedent died later. It was claimed by the decedent's estate that the surgeon was intoxicated during surgery. However, no evidence was offered at trial on damages which resulted in a dismissal of those claims for tort. With regard to a claim that the hospital and surgeon violated the Consumer Practices Act, the COA concluded that there must be some nexus between the contract act and the business or entrepreneurial activity, and since there was none, the CPA violation must be dismissed.
This lawsuit was brought by the personal representative (Barnett) following the decedents (Evert) death after surgery at Lourdes Hospital. While evaluating Evert for his complaints of chest pains, a physician discovered a lump under Evert's arm. The physician believed the lump could be a lymphoma and so Evert underwent surgery to remove the lump. Barnett alleges that the surgeon who performed the biopsy, Dr. Brunson, was intoxicated at the time of the surgery, that other personnel at Lourdes and in the operating room knew of Dr. Brunson's condition, and that they unsuccessfully tried to stop him from performing the surgery. Following surgery, Evert developed some complications and ultimately suffered a stroke. Evert managed to live at home for a short period of time following his release from Lourdes, but he eventually was placed in a nursing home, where he died several months later.
Summary judgment was granted dismissing the personal
injury claim for no damages shown. Furthermore, Barnett argues that the Kentucky Consumer Protection Act (the Act) applies to Lourdes and that he suffered damages as a result of Lourdes's violation of provisions of the Act. Lourdes argues that Barnett failed to prove any damages based on the breach of contract claim and that, even if the Act applies to Lourdes, it did not violate any provisions of the Act and Barnett has failed to prove any damages under the Act.
Barnett argues that when he signed a document agreeing to be responsible for payment for Evert's treatment, he created a contract with Lourdes Barnett is arguing that, in consideration for his agreement to pay for Evert's treatment if insurance would not cover the expenses, Lourdes agreed to treat
Evert, exercising appropriate care. Barnett argues that Lourdes breached the contract when it permitted an intoxicated surgeon to perform surgery on
Evert. Finally, Barnett argues that he performed all of his obligations under the contract as Lourdes has been paid for its services.
To be enforceable, a "contract must contain definite and certain terms setting forth promises of performance to be rendered by each party."
Although the documents do not contain any specific promise by Lourdes to provide care or as to the quality of care, the fact that Lourdes rendered care implies such
a promise. Therefore, we hold that an express contract existed between Barnett and Lourdes.
However, establishing the existence of a contract is not sufficient to sustain a cause of action for breach of contract. Barnett must also prove that Lourdes breached the contract and that he suffered damages as a result of that breach. In an action for breach of contract, the measure of damages "is that sum which will put the injured party into the same position he would have been in had the contract been performed." Perkins Motors, Inc. v. Autotruck Federal Credit Union, 607 S.W.2d 429, 430 (Ky.App. 1980).
Assuming for the sake of argument that Lourdes did breach the contract, Barnett has not put forth any
evidence that he suffered any damages. Because Barnett has failed to prove that any amount was paid by the estate to Lourdes on behalf of
Evert, he has failed to prove that the estate suffered any damages. Therefore, whether a contract existed between Evert and Lourdes and whether any such contract was breached is of no consequence.
In order for the Act to apply, there must be some allegations that the actions complained of were part of the business aspect of the practice of medicine. Such actions would include advertising for a particular procedure or surgery then failing to advise the patient of the risks involved or of alternative treatment; entering into a financial agreement that would increase profits to
the possible detriment of patients; or advertising services at a particular cost then charging at a different rate. Negligently performing surgery or providing treatment that is below the standard of care and failing to inform a patient of such actions are not included in the business aspect of the practice of medicine. Therefore, they are not covered under the
Consumer Protection Act.
COA held that Barnett failed to provide any evidence of damages; therefore, the circuit court appropriately granted Lourdes' motion for summary judgment. Furthermore, because the actions of Lourdes did not involve the entrepreneurial, commercial, or business aspects of Lourdes' practice of medicine, the Consumer Protection Act does not apply to this set of facts.
By Michael Stevens
CA reverses and remands grant of SJ to CSX on statute of limitations grounds in this toxic exposure case.
Plaintiff-appellant worked for CSX from 1974-1980 and was exposed daily to chemicals and solvents. Beginning in 1994 he consulted doctors for headaches, GI problems, depression, anxiety, mood swings, and problems with memory and attention. At that time he expressed concern about his toxic exposure at CSX. In 1995, he requested his internist's assistance in getting a referral to an occupational health specialist in Michigan; his insurance denied coverage for the referral and, instead, he went to a neurologist. The neurologist diagnosed only migraines and missed toxic encephalopathy. Finally, in June 2001, he was diagnosed with toxic encephalopathy attributed to the chemical exposure at CSX. He filed suit within the 3-year FELA SOL.
CSX argues that the record shows he knew or should have known that his complaints were attributable to the exposure as early as 1996, but that he delayed filing suit until 7 years later. CA holds that, because toxic encephalopathy is a progressive disease whose symptoms mimic other conditions, and because 5 highly qualified physicians missed its source, the claimant cannot be charged with notice of his condition, and its cause, under Lipsteuer. A spirited dissent follows.
By John
Hamlet
In 1984, the owner of a half-acre tract in Fort Wright, Kentucky (“City”) asked to rezone the property to commercial and permit a temporary access. The request was approved, subject to future revocation based upon certain criteria. Thereafter, the property was transferred to an entity that constructed and operated a car wash, using the temporary access. The Godmans acquired title to the property in 1999. Shortly thereafter, the City notified the Godmans that it intended to revoke the temporary access. In 2002, the Zoning Administrator for the City sent a letter by certified mail to the Godmans informing them that he was revoking the temporary access. The letter was returned unclaimed. One month later, the Zoning Administrator sent an identical letter by regular mail. Counsel for the Godmans acknowledged receipt of the second letter and asked, in writing, for clarification. The City did not respond.
One year and six days later, the City brought a civil action against the Godmans seeking to close the access. The Circuit Court granted summary judgment to the City, finding that the Godmans did not file a timely appeal from the City’s final decision revoking the access point. Both a local ordinance and KRS 100.261 require a party to appeal to the Board of Adjustment within thirty days after receiving notice of a final decision of the Zoning Administrator.
On appeal, the court held that the letter sent to the Godmans failed to comply with minimum requirements of due process, because: (1) the letter did not provide any reasoning for the decision, thereby preventing any meaningful review and (2) the letter failed to inform the Godmans of their obligation to file a timely appeal. The court also noted that the City failed to respond to the Godmans’ written request for clarification. The court concluded that the City had failed to show a final and appealable decision by the Zoning Administrator and reversed and remanded the matter to the circuit court with instructions to dismiss the City’s action.
By Samuel Hinkle
NOT PUBLISHED (COA)
JACKSON V. COM.STEWART V. COM.
CRIMINAL: VEHICLE SEARCH
2006-CA-002506
PUBLISHED: 81
DATE RENDERED: 8/31/2007
HARLEY V. COM.
CRIMINAL:
JURORS: DISQUALIFICATION
EVIDENCE: CURATIVE ADMISSIBILITY
2005-CA-002188
PUBLISHED: 102
DATE RENDERED: 8/31/2007
PIPPIN V. PIPPIN
FAMILY LAW: MAINTENANCE (REHABILITATIVE; MODIFICATION; COHABITATION);
CHILD SUPPORT REOPENING; AND OTHER FINANCIAL ISSUES
2005-CA-002087
PUBLISHED: 137
DATE RENDERED: 8/31/2007
MOSS V. MOSS
FAMILY LAW: MARITAL DEBTS; UNSWORN TESTIMONY;
2005-CA-002156
PUBLISHED: 79
DATE RENDERED: 8/31/2007
JARRETT V. JARRETT
FAMILY LAW: ATTORNEYS FEES; TRACING ASSETS; JUDICIAL IMPARTIALITY
2006-CA-001557
PUBLISHED: 173
DATE RENDERED: 8/31/2007
ANDERSON V. ANDERSON
FAMILY LAW: CHILD SUPPORT FOR ILLEGITIMATE CHILD NOT DISSIPATION OF
ASSETS; MARITAL PROPERTY - BUSINESS GOOD WILL
2006-CA-002129
PUBLISHED: 90
DATE RENDERED: 8/31/2007
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.