SEPTEMBER 28, 2007 KENTUCKY COURT OF APPEALS DECISIONS (2006:47)
PUBLISHED (COA).
MCKINNEY V. CITY OF NEWPORT, KYThe appellant, Mary Sue McKinney, d/b/a
Performance Realty, appeals from a jury verdict in favor of the appellee, City
of Newport (Newport), finding that one of McKinney's agents, Jim McCord, was not
the procuring cause of the sales of properties to Newport by property owners
living in an area referred to as the Cote Brilliante neighborhood.
A detailed stipulation of facts was entered and this decision is rather
fact-specific as to the conduct and actions of the party with this appeal
addressing the question of the jury's verdict finding no procuring cause
by McKinney's agent McCord in the real estate sale.
During his contacts with the property owners in the area, McCord did not represent that he was acting as Newport's agent and did not negotiate with the property
owners on Newport's behalf. There was no separate agreement with Newport for the payment of commissions to him.
A real estate broker faces the risk that as a result of his efforts, buyer and seller will be brought together and negotiate yet, either because of the expiration of time or a variety of reasons, the broker will not finalize the sale.
In such situations, the party responsible for payment of the broker's commission may refuse payment based on the failure to complete the transaction. In response to the inequities of such a result, the courts have adopted the procuring cause rule. In
Mattingly-Lusky Realty Co. v. Camper, 228 Ky. 407, 15 S.W.2d 240, 241 (1929).
The doctrine of procuring cause has its basis in the theory that when the owner of property engages the services of a broker to sell his property, and the broker secures a prospective purchaser, and such purchaser and the seller agree upon a price and terms without the further service of the broker, then the latter cannot be deprived of his commission by the act of the owner in concluding the negotiations without the assistance of the broker.
The expression 'procuring cause' . . . refers to the cause originating a series of events which without break in their continuity result in the accomplishment of the prime object of the employment of the agent, which, as stated, is the procurement of a purchaser ready, willing, and able to buy the land on the principal's terms.
The rule will not permit recovery of a commission where there has been a break in the continuity of events leading to sale and purchase of the property. Thus, a broker who abandons his agency will not be permitted to recover
under the procuring cause rule
The COA was cognizant that in the typical brokerage contract, the seller employs
and pays the commission to the broker; in this case, however, the nature of the proposed
development required that the buyer, Neyer, employ McCord. This distinction alone
does not defeat the application of the procuring cause rule. Whether the broker works on
behalf of the seller or the buyer, the reasoning for its application is the same.
However because there is evidence in the record sufficient to support the jury's finding that
McCord was not the procuring cause, COA affirms.
Digested by Michael Stevens
CRAWFORD V. PITTMANPlaintiff filed suit for various causes of action, and Defendant's attorney filed an answer. Trial court (TC) entered an order setting a trial date for 11/15/05. On 06/17/05, defense counsel moved to reassign the trial date. On 06/28/05, two new attorneys filed a motion to enter appearance as counsel in substitution of previous defense counsel. None of the three defense attorneys appeared at motion hour on this motion, and the TC remanded it due to counsels' non-appearance. On 11/2/05 and 11/8/05, Plaintiff filed his witness list and proposed jury instructions, but he did not effectuate service on any of the three attorneys or on the Defendant. On 11/15/05 the case was called for trial, and the TC noted that neither the Defendant nor any of his counsel appeared. Upon Plaintiff's motion, the TC struck the Defendant's answer, granted a default issue on liability and allowed Plaintiff to present evidence as to damages. Three months later, the TC entered a written judgment in favor of the Plaintiff for some $62K. The second defense counsel moved to set aside the default judgment under CR 55.01, and the TC denied it on the basis of CR 37.02(2)(c). Defense counsel moved to alter, amend or vacate the denial, which was again denied, and this appeal followed.
Three errors alleged:
1. TC erred in awarding default judgment in contravention of CR 55.01, making judgment void ab
initio. CA noted the standard of review on default judgments is abuse of discretion, but that where sanctions are imposed, as here, the discretion of TC is not unlimited. It must be supported by a finding of bad faith or willfulness on the part of the party being sanctioned. In the CAs review of a TC's imposition of sanctions, it must consider (a) whether the opponent was prejudiced by dismissed party's actions; (b) whether dismissed party was given a warning that dismissal could result from failure to cooperate
and (c) whether other, less drastic sanctions had previously been imposed or considered prior to dismissal. Greathouse v. American Nat'l Bank & Trust Co., 796 S.W.2d 868 (Ky. App., 1990). The CAs found that the record had no evidence of any such findings; CA finds the TC abused its discretion in granting the default. CAs also noted that the TC's reliance on CR 37.02(2)(c) as grounds for granting default, was misplaced, as that rule relates to sanctions available only when a party fails to obey an order tor provide or permit discovery. The rule does not indicate sanctions are available to a party who otherwise violates orders of the Court. CAs agreed with defense counsel that CR 55.01 applies to this situation.
CR 55.01 mandates tat notice of application for a default judgment must be given to alleged defaulting party at least 3 days prior to the heraing on the applciation if the alleged defaulting party has appeared in the action. There was no doubt that the Defendant did appear on this action earlier in its history, and CA held Defendant was therefore entitled to notice of application for default judgment. There being no such notice, the CA vacated it.
Though this holding was sufficient to vacate the default, the CAs discussed the remaining arguments.
2. CA noted that in TC's denial of post-judgment motions for relief, it indicated Defendant had failed to show presence of meritorious defense or good casue sufficient to satisfy the requirements set forth in CR 55.02 to set aside default judgment. However, CA held that as mandatory requirements of CR 55.01 were not present, the presence or absence of a meritorious defense is immaterial. Also, as default judgment was void as a matter of law, the TC had not discretion to exercise when ruling on motion to set aside judgment.
3. CA agreed with defense counsel that TC erred in holding damages hearing without first giving notice of same. In cases involving unliquidated damages where a party has made an appearance, the defaulting party admits liability but not amount of damages. As such, a separate hearing is required, and fundamental fairness requires the defaulting party be given notice of a damage assessment hearing before such is held. Because the Defendant had made an appearance, she was entitled to notice of the damages hearing, and the CAs held that even if it were not vacating the underlying default judgment, it woudl have been required to reverse the damages award for want of notice.
Digested by Cherry Guanieri
The Louisville Department of Corrections (the Department) appeals from an order of the Jefferson Circuit Court in which the Department was held in contempt of court and fined $160 after it refused an inmate, Kathryn Maria King, work release as required by the court's order. The Department alleges that it was within its supervisory function to deny King work release and that the contempt fine was not supported by the evidence. COA disagreed with both contentions and affirmed the contempt order.
Although pursuant to KRS 532.210 incarcerees are subject to the decisions of the Department during the period of supervision, the terms of home incarceration, including work release, are within the sole discretion of the sentencing court. KRS 533.010 states that the court may order probation with the defendant to serve an alternative sentence which includes “home incarceration with or without work release for no more than twelve months.” KRS 533.010(6)(b). The statute specifically states that the the jailer may deny work release privileges only for “violating standards of discipline or other jail regulations” and further provides that the Department of Corrections develop written criteria for work release privileges. KRS 533.010. The COA did recognize a prior order by a former Chief Judge of the District Court not permitted home incarceration for probated inmated on work release to a temporary agency, but this order was no longer valid.
Digested by Michael Stevens
HAMILTON V.
COM.
CRIMINAL: SEARCH AND SEIZURE, PROTECTIVE SWEEP
2006-CA-001135
PUBLISHED: AFFIRMING
PANEL: LAMBERT PRESIDING; KELLER AND STUMBO CONCUR
COUNTY: PIKE
DATE RENDERED: 09/28/2007
TC properly denied Hamilton's motion to suppress evidence seized during warrantless search of his home under the protective sweep exception. The totality of the circumstances reveal that Officer Justice had some information that Hamilton may have been involved in drug trafficking. On this particular occasion, with the questionable information given by witness concerning a “car deal,” the officers would have reason to believe that a drug transaction had recently taken place. Moreover, when the officers arrived at Hamilton's residence, Beverly's erratic behavior in conjunction with the voluntary statements made by Hamilton regarding a potential outstanding warrant gave reason to the police to suspect she could be concealing or destroying evidence or worse taking actions that could bring the officers' safety into question.
The protective sweep concept has been acknowledged in several Kentucky and Sixth Circuit cases. See, e.g., U.S. v. Colbert, 76 F.3d 773 (6th Cir. 1996); U.S. v. Johnson, 9 F.3d 506, 510 (6th Cir. 1993); U.S. v.
Rigsby, 943 F.2d 631 (6th Cir. 1991); Davis v. Commonwealth, 120 S.W.3d 185 (Ky.App. 2003). Furthermore, it was reasonable for Justice to believe that Beverly had common authority over the residence and therefore had the capacity to consent to search given that she was present at the time of police contact, was familiar enough with the interior to find a closet in which to hide, volunteered to show where the drugs and money would be located, and was Hamilton's live-in girlfriend. See, e.g., Commonwealth v.
Nourse, 177 S.W.3d 691 (Ky. 2005), citing U.S. v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974).
Digested by Scott C. Byrd
Olgin and Byrd
This medical negligence claim arose from alleged negligent post-surgery care by the hospital's nursing staff. A jury returned a verdict in favor of Jewish Hospital and this appeal
followed in which the appellant alleges the trial court: (1) erroneously excluded relevant and competent evidence concerning Mr. Dawson's
bedsores; (2) denied the Dawsons' counsel an adequate opportunity to voir dire the jury; and (3) failed to tender a loss-of-chance instruction to the jury. The Dawsons also appeal from a post-verdict order requiring them to pay Jewish Hospital's
expert witness fees. The appeals were consolidated. Finding no reversible error,
affirmed'
Dawsons contend that Mr. Dawson experienced pain in his side. He went to Tri-County Baptist Hospital where a CT scan was performed which revealed a 6cm aortic
aneurysm in his chest. Mr. Dawson was referred to Dr. Matthew Jung who reviewed the CT films and recommended surgery. He discussed with Mr. Dawson the potential complications from the surgery including paraplegia (paralysis) and death.
Twenty-one months after his initial diagnosis, Mr. Dawson again saw Dr. Lawson but refused a CT scan. Two days after seeing Dr. Lawson, Mr. Dawson's pain
became so severe that he returned to Tri-County Hospital. While on the gurney, the aneurysm, which was by then 7.5cm, ruptured. He survived the rupture but was still in
need of surgery. After he again refused, he was admitted to the hospital as a terminal patient.
Aware of the risk, Mr. Dawson elected to have the surgery.
Although vital signs were to be recorded every two hours, at 6:00 p.m., the flow sheet does not indicate any recorded vital signs for Mr. Dawson.
However, shortly after 6:00 p.m., a nursing assistant drew blood for a glucose test and Mr. Dawson did not indicate that he had any problems. His blood pressure was
continuously monitored at the nursing station.
Dr. Ganzel testified that even if the paralysis had been treated earlier, there was no chance of a reversal and success would be “highly unusual.” Dr. Bouvette also
testified that the “late onset of paralysis has been known and accepted as a complication well into the second week following surgery.”
Dr. Luis Mispereta testified that although there have been a “few anecdotal reports” of reversal of paralysis caused by “compartment syndrome,” there has not been one instance when paralysis caused by a blood clot such as in Mr. Dawson's case has been reversed. Jewish Hospital also produced the testimony of Dr. Henry
Garreston, a neurosurgeon, who testified that once Mr. Dawson was paralyzed, it was irreversible.
With regard to pretrial discovery and expert witnesses, the pretrial order clearly
stated - "There must be a literal compliance with the requirements of CR
26.02(4)(a)(i). A party must identify each person whom the party expects to call as an expert witness at trial, and state the substance of the fact and opinions to which the expert is expected to testify and a summary of the grounds of each opinion.
. . . Failure to comply with the letter and spirit of the aforesaid civil rule may result in the suppression of the expert's testimony."
Despite the direct order of the court, outside the disclosure deadline, on December 5, 2005, the Dawsons attempted to supplement their expert disclosures to include expert
opinions from Dr. Cowles and Nurse Batezel concerning bedsores and itemized medical expenses which included 53 providers different from those previously disclosed.
On December 20, 2005, the trial court sustained Jewish Hospital's motion to exclude any reference during the trial to bedsores.
Thus, if the bedsores were a natural consequence of the paralysis, Jewish Hospital cannot be liable for any damages incurred as a result of the bedsores; any error, therefore, was not prejudicial.
With regard to voir dire, the court permitted each party's counsel to question the jury and, at the close of Jewish Hospital's voir dire, counsel asked, without objection, two questions:
Defense Counsel: Does anybody here think lawsuits are driving up the costs of health care?
Defense Counsel: Does anyone here think that Kentucky is losing doctors as result of lawsuits?
The Dawsons contend that “approximately 50% of the jury panel raised their
hands" in response to these questions; and Dawson'sr counsel's request to re-voir dire the jury panel was denied. Thus, they surmise, they “were left with a panel, 50% of which clearly indicated that they personally felt that the
Dawsons' lawsuit would drive-up their health care costs and result in physicians leaving the state.”
The Dawsons did not object to a single voir dire question; did not challenge a juror for cause on the basis of bias, and, when asked if they accepted the jury, their
counsel responded affirmatively. Any contention that the trial court abused its discretion when it denied the Dawsons the opportunity to have the last word in the jury selection process was waived.
The evidence in this case did not warrant (a loss of chance)...instruction ...under the loss-of-chance doctrine, the plaintiff must still prove that the defendant breached the applicable standard of care and the breach was a substantial factor in causing a diminished chance of recovery or survival from the underlying disease or
injury.
Digested by Michael Stevens
COA held that Pucke's common law claims of wrongful discharge and intentional infliction of emotional distress were not subsumed by KRS Chapter 344 with the COA noting its earlier decision in Wilson v. Lowe's Home Center, 75 S.W.3d 229, 239 (Ky.App. 2001), wherein it was previously held that in the absence of the availability of a remedy under KRS Chapter 344 for a claim of IIED, a claim of outrageous conduct is not precluded. Thus, the trial court's dismissal was improper.
Under the facts of this case and the plain language of Kentucky law, foreclosure of Pucke's statutory civil rights claims does not in any way foreclose the availability of remedies arising under her remaining common law claims. To hold otherwise would lead to the absurd result that an employer could completely escape liability for discriminatory work-related conduct by simply maintaining a work force of less than eight employees, thereby falling outside the statutory definition of an “employer” under KRS 344.030(2). This result would deny all similarly aggrieved parties any legal recourse.
Digested by Michael Stevens
Board of Trustees appeals the TC's finding that no substantial evidence existed to support the Board's determination at its administrative hearing that Dossett's four-month employment period as a police recruit in 1976-77 constituted
nonhazardous-duty service. Dossett was seeking to purchase service credit toward his pension and the Board said he could only do so at the substantially more expensive hazardous-duty service rate.
The COA began by noting that it will not overturn a state agency's administrative decision unless the agency has acted arbitrarily, acted outside the scope of its authority, applied an incorrect legal standard, or if the decision is not supported by substantial evidence. The COA highlighted the uncontroverted testimonial evidence of the Board's own employees at the administrative hearing that revealed the hazardous-duty service classification was simply a clerical error made in Dossett's file and that none of the other hundreds of officers had their recruitment period classified as such for purposes of purchasing pension credit. The COA concluded that Dossett was the victim of a simple clerical error and could not reasonably have been expected to discover this on his own prior to the proceedings. The COA therefore affirmed the TC's decision in this matter.
Digested by James R.
Chadword Kessinger
Schiller, Osbourn, Barnes &
Maloney
CA affirms in part and reverses and remands in part these related appeals from the TC summary judgments for Best and University Obstetrical and Gynecological Associates ("University Associates") in this medical malpractice case. (Jefferson Cir. Ct., Hon. Judith E.
McDonald-Burkman, judge, presiding).
CA holds that Dr. Farmer and Baptist Hospital have no standing to challenge the summary judgments in favor of their former co-defendants. Also, as to Jenkins' appeal, CA affirms summary judgment for Dr. Best and reverses and remands summary judgment for University Associates.
Baptist Hospital contracted with University Associates to provide a wide range of parinatology specialist services. University Associates engaged Dr. Best to provide those services to both University of Louisville Hospital and Baptist Hospital. On March 28, 2003, University Associates scheduled Dr. Best to be on call to deliver babies at UofL Hospital overnight; the contract required her to remain in-house at UofL overnight. University Associates also scheduled Dr. Best to be on call at Baptist without making any contingency plan in the event both contracts required simultaneous performance.
Jenkins came to Baptist twice on that date, 30 weeks pregnant and complaining of abdominal pain and vaginal bleeding. Dr. Farmer covered for her regular obstetrician and was informed by nurses by phone that her condition did not indicate fetal distress. He ordered an ultrasound to be performed by a perinatologist to reassure the patient and her family. The duty nurse called Dr. Best to perform the ultrasound and was told Dr. Best could not come tonight, but could come in the morning. The nurse told Dr. Farmer and he came to the hospital to examine Jenkins himself. He found her stable and ordered the ultrasound for the morning. At shift change that night (approximately one hour later) a new nurse became concerned about Jenkins' condition and called Dr. Farmer who had her transferred to a third hospital for a complete immediate obstetrical ultrasound. The child was delivered by C-section shortly thereafter; he was permanently and totally disabled and has since died. During his deposition, Dr. Farmer stated that he was unaware that University Associates had no contingency plan and that he had assumed that upon first consultation for the ultrasound as ordered, Dr. Best had determined that it was advisable to wait until morning. He thought that if Dr. Best thought an ultrasound was required immediately and she was unavailable, she would arrange for another specialist to conduct the ultrasound.
Best and University Associates were granted summary judgment on the basis that Dr. Best never had a physician-patient relationship with Jenkins. Farmer and Baptist appealed; COA holds that they have no standing to appeal the grant of SJ to their former co-defendants. On Jenkins' appeal, however, SJ for University Associates is reversed to determine whether its negligence, if any, was as substantial factor in causing the injuries complained of.
Digested by John
Hamlet
Sitlinger, McGlincy,
Theiler & Karem
Medical benefits and University Evaluators - The Court of Appels held that an ALJ may refuse to grant future medical treatment in a case where he finds that no medical treatment is needed in the future. The COA distinguished recent Supreme court case law in FEI Installation v. Williams which held that an ALJ may not refuse to grant future medical benefits even if there is no permanent impairment, where a work related injury has been proven. The COA also held that the claimant failed to object to the appointment of Dr. Goldman as a University Evaluator under KRS 342.315. The Supreme Court in Morrison v. Home Depot had held that Dr. Goldman was not qualified as a university evaluator because he was merely a contracted evaluator and not an actual employee of a University.
Digested by Peter Naake
Priddy, Cutler,
Miller & Meade
The claimant, a life long coal miner, challenged the clear and convincing burden of proof to overcome the consensus of a panel of experts, who found that he did not suffer from pneumoconiosis. The Court of Appeals rejected the argument, holding taht the statute reasonably classifies pneumoconiosis claims differently from traditional injury claims. Stumbo dissents, as she would hold that the statute denies equal protection to miners with this type of disease.
Digested by Peter Naake
Priddy, Cutler,
Miller & Meade
Baesler applied to amend the Fayette County comprehensive plan to change to light industrial use the portion of his property that bordered the Blue Sky Rural Activity Center (“Blue Sky”), which is an industrial area containing manufacturing and other industrial facilities. Baesler’s property was considered a buffer under the comprehensive plan, separating Blue Sky from agricultural land.
After a public hearing, the Lexington-Fayette Urban County Planning Commission (“Commission”) denied the application. On remand by a circuit court reversal because of due process violations, the Commission again denied the application. Baesler appealed to the circuit court, which affirmed.
On appeal, Baesler argued that the Commission’s finding of fact that the Blue Sky Wastewater Treatment Facility was inadequate was not supported by substantial evidence. The court disagreed, holding that although there was conflicting evidence, there was substantial evidence to support the Commission’s decision.
Baesler also claimed that the Commission’s finding that expanding Blue Sky to include Baesler’s property would negatively impact agricultural property lacked substantial evidence, a claim rejected by the court because substantial testimony and evidence supported the finding.
Finally, Baesler argued that his procedural due process rights were violated because a Councilwoman from Lexington testified at the hearing stating that her district opposed expanding Blue Sky. Baesler claimed that the testimony was improper and unduly influenced the Commission’s decision. The court disagreed, stating that there was no evidence of impropriety, and therefore Baesler’s due process rights were not infringed.
Digested by Sam Hinkle
NOT PUBLISHED (COA)
WHITTLE V. COM.SAVAGE V. COM.
CRIMINAL: COMMENTS ON FAILURE TO TESTIFY
2006-CA-000033
NOT PUBLISHED: 97
DATE RENDERED: 09/28/2007
SMITH V. COM.
CRIMINAL: 11.42
2006-CA-000569
NOT PUBLISHED: 73
DATE RENDERED: 09/28/2007
HEIFNER V. HEIFNER
FAMILY LAW: SEPARATION AGREEMENT, UNCONSCIONABILITY
2006-CA-000702
NOT PUBLISHED: 71
DATE RENDERED: 09/28/2007
LINDEMAN V. COM.
CRIMINAL: WITHDRAWING GUILTY PLEA
2006-CA-000904
NOT PUBLISHED: 111
DATE RENDERED: 09/28/2007
QUILLEN V. QUILLEN
FAMILY LAW: CUSTODY AND DAD'S NEW WIFE
2006-CA-001216
NOT PUBLISHED: 106
DATE RENDERED: 09/28/2007
MCCRAVY V. COM.
CRIMINAL: 11.42
2006-CA-001385
NOT PUBLISHED: 74
DATE RENDERED: 09/28/2007
HUNTINGTON NAT'L BANK V. BURKES WRECKER SERVICE
PROPERTY: STORAGE AND TOWING LIENS PER KRS 376.275
2006-CA-001472
NOT PUBLISHED: 61
DATE RENDERED: 09/28/2007
HOLLAND V. COM.
CRIMINAL: DVO AND 85% RULE
2006-CA-001650
NOT PUBLISHED: 76
DATE RENDERED: 09/28/2007
CAB. FOR HEALTH AND FAMILY SERVICES V. E.(J.)
FAMILY LAW: ORDERED SERVICES FROM CABINET AND DEFECTIVE APPEAL
2006-CA-001857
NOT PUBLISHED: 81
DATE RENDERED: 09/28/2007
ELY V. COM.
CRIMINAL: SEX OFFENDER STATUTE AND OUT-OF-STATE CONVICTION
2006-CA-001968
NOT PUBLISHED: 101
DATE RENDERED: 09/28/2007
MCDANIEL V. COM.
CRIMINAL: SEARCH AND SEIZURE, TIME LAPSE, AND EXIGENT CIRCUMSTANCES
2006-CA-002087
NOT PUBLISHED: 101
DATE RENDERED: 09/28/2007
MCDANIEL V.L MAUPIN
FAMILY LAW: JURISDICTION AND COMITY AND VENUE ISSUES
2006-CA-002458
NOT PUBLISHED: 82
DATE RENDERED: 09/28/2007
DURHAM V. PEABODY COAL CO.
WORKERS COMP: CONSTITUTIONALITY OF pneumoconiosis
STATUTE
2007-CA-000032
NOT PUBLISHED: 98
DATE RENDERED: 09/28/2007
UPS V. BLANKENBAKER
WORKERS COMP: DORMANT CONDITIONS
2007-CA-000069
NOT PUBLISHED: 132
DATE RENDERED: 09/28/2007
RYDER INTEGRATED LOGISTICS V. GARGALA
WORKERS COMP: HEART ATTACK
2007-CA-001298
NOT PUBLISHED: 105
DATE RENDERED: 09/28/2007
Thanks to Scott Byrd, John E. Hamlet, Cherry Guarnieri, 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.