Nov. 21, 2007 KENTUCKY COURT OF APPEALS DECISIONS (2006:56)
PUBLISHED (COA).
ISSUE: Award of Attorney Fees in Condemnation Action
Golden Foods, Inc. (GFI) appeals TC's Order denying its motion for attorney fees in condemnation action instituted by MSD to acquire GFI's property in order to implement a sewer improvement project in an unincorporated part of Jefferson County. MSD had previously filed a condemnation action that was dismissed by the TC due to MSD's conduct not meeting the good faith standard required of
condemnors. MSD appealed that dismissal, and began a second round of negotiations with GFI for purchase of the property, which was unsuccessful. MSD then filed a second condemnation action. After conducting a right-to-take hearing, the TC this time granted MSD's petition after finding that MSD had acted in good faith in attempting to acquire the property. GFI appealed, but the COA affirmed the TC's grant of the petition (2004-CA-000688-MR unpublished). Back at the TC for further proceedings, GFI filed a motion for attorney fees relating to its successful defense of MSD's first condemnation petition. The TC denied the motion and ruled that while MSD's initial negotiations efforts were not sufficient to meet good faith standards to permit the taking, they were not so egregious as to justify the extraordinary award of attorney fees. GFI appealed.
Upon review, the COA began by noting that attorney fees are not recoverable without a specific contractual provision or fee-shifting statute supporting same. However, attorney fees can be awarded in condemnation proceedings under certain circumstances if the TC determines that the condemnor acted in bad faith or caused unreasonable delay. The COA notes that a finding of bad faith does not automatically require a TC to award attorney fees as a matter of law. The decision is within the sound discretion of the TC, and will not be disturbed absent a finding of abuse of discretion. The TC felt that MSD's improper conduct of suddenly reducing its offer from $60,000 to $4,000 without explanation before the first condemnation action did not rise to the level of the extremely deliberate bad faith acts at issue in two comparison cases (Northern Ky. Port Authority v. Cornett and Bernard v. Russell County Air Board) in which attorney fees were awarded. Because the TC's ruling was based on proper application of the law and within its broad discretion, the COA affirmed the TC's decision.
By Chad Kessinger
Schiller, Osbourn, Barnes & Maloney
This is an appeal from a summary judgment in favor of Leitchfield Deposit Bank
( the bank) enforcing personal guaranty agreements executed by the Appellants, Arie de
Jong, Jr. and Charles Marty Higdon securing a loan made by the bank to the Appellee, Lakeview Golf Club, Inc. The appellants contend that the circuit court erred in granting summary judgment because genuine issues of material fact exist and because the bank breached a fiduciary duty of disclosure; was guilty of misrepresentation in inducing them to enter into the transaction; breached an implied covenant of good faith and fair dealing; breached other duties owed
to them; and that the circuit court erred in determining the amount of damages. Finding no error,
COA affirmed summary judgment.
Lakeview was incorporated for the purpose of purchasing and operating a golf
course and borrowed $1.1 million from the bank posting as security for the loan a promissory note, a mortgage on its real property, and a security interest in its personal property
The appellants allegedly were told by other shareholders that the golf course was worth $2 million, despite an existing appraisal of approximately $1.5
million and that golf course has $944,832 in previously existing indebtedness, when the true amount of debt exceeded $1.5 million.
COA rejected De Jong and Higdon's first contention that the trial court erred in failing to separate their
claims as they failed to demonstrate how they were prejudiced by such procedure.
COA also disagreed with De Jong and did not find that he had more than the typical debtor-creditor relationship with the bank and that the bank owed him a fiduciary duty of disclosure,
since there were no such facts or evidence to support a finding that the bank owed de Jong a fiduciary duty.
Banks do not generally have fiduciary relationships with their debtors. This flows from the nature of the
c reditor debtor relationship. De Jong did not allege that the bank profited from any confidence gained from him. He failed to produce any evidence that his relationship with the bank was
other than a typical debtor-creditor relationship, or that the bank owed him a fiduciary duty of disclosure.
At almost every point of contention on this appeal, the appellants have stated potentially valid causes of action, but at each point they have failed to produce any
evidence, in the record, to support such legal theories. The bank met its prima facie burden of demonstrating the absence of any genuine issue of material fact.
By Michael Stevens
Dad appealed Family Court’s order modifying joint custody of Daughter to sole custody with Mom, and restricting Dad’s visitation to weekly supervised visitation. Dad alleged that Circuit Court erred by treating the Exceptions he filed as a Motion to Alter, Amend or Vacate and by transferring the case to Family Court.
When Daughter was ten, Mom and Dad divorced and agreed upon joint custody with equal time sharing of Daughter. Two years later, Mom alleged that Dad had engage in inappropriate sexual relations with Daughter and moved for sole custody. The matter was heard by a Domestic Relations Commissioner
(“DRC”), who recommended sole custody to Mom with weekly supervised visitation by Dad. Dad timely filed Exceptions to the DRC’s recommendations. Circuit Court entered an Order that it would treat the Exceptions as a Motion to Alter, Amend or Vacate pursuant to CR 59.05 DRC’s recommendation and transfer the case to Family Court. DRC had been elected as Family Court Judge, and in that capacity, he subsequently denied the Motion to Alter, Amend or Vacate. Dad appealed.
CA agreed with Dad. Regarding the Motion to Alter, Amend or Vacate, CA noted that a CR 59.05 motion may only be utilized to seek reconsideration of a “final judgment.” The recommended order of a DRC is not a final judgment, but, rather, a recommendation utilized by the circuit court in reaching a final decision, thus the Motion to Alter, Amend or Vacate was not available at that stage of the proceedings. Considering the procedural posture of this case, CA believed the circuit court should have simply reviewed the exceptions, conducted a hearing, and entered a final judgment adjudicating the child custody issue.
As to Dad’s contention that the case should not have been transferred to Family Court, CA noted that while the family court was vested with jurisdiction over domestic issues by Ky. Const., § 112(6) and KRS 23A.100, such jurisdiction was not intended to be exclusive. Rather, the circuit court may, in some circumstances, retain jurisdiction to rule on domestic issues already before it, such as child custody. CA found that this case presented a unique circumstance where the circuit court should have retained jurisdiction and not referred it to Family Court since DRC conducted the proceedings, including an evidentiary hearing pursuant to CR 53.
Mom argued that Dad did not preserve issues for appeal, but CA stated that the gravity of errors claimed was one of substantial proportions, and pursuant to CR 61.02 this error may be considered by CA and the appropriate relief may be granted upon a determination that manifest injustice resulted from the error. CA noted that such an injustice had occurred, because “in a child custody proceeding, there can be no greater injustice to a party than a court failing to comply with applicable statutes and civil rules.
By Michelle
Eisenmenger Mapes
Diana L. Skaggs +
Associates
CA affirms TC decision to affirm the Kentucky Dept. of Insurance's (now Kentucky Office of Insurance) denial of an agent's license to appellant.
Appellant, a well-known political figure, was formerly licensed as an "insurance solicitor" from approximately 1976 through 1987. In 1987 he was convicted of federal firearms charges relating to the allegations that he provided a handgun which he knew would be used to kill a Florida prosecutor, and after the killing he helped the killers establish an alibi. In 1987 he sought renewal of his solicitor's license which, at that time would only be refused for felonies involving "moral turpitude." With full knowledge of his convictions, the Department of Insurance renewed his license. Appellant applied for and received renewals every two years from 1987 through 1999.
In 1999, the Department filed a complaint to revoke appellant's solicitor's license based upon the 1987 convictions; appellant challenged the revocation. State law then abolished the solicitor's license effective July 15, 2000. The law provided for solicitor's license-holders to apply for an agent's license through a grandfather clause with a deadline of July 14, 2000. Appellant failed to apply under this clause, applying on August 1, 2000. In 2001, a hearing officer upheld the denial; in 2006, appellant appealed to Franklin Circuit Court, which affirmed. This appeal followed, with appellant arguing that the statute of limitations and estoppel bar the denial.
CA holds that the SOL does not apply because 1) the solicitor's licenses issues are moot; the real issue is with the denial of the August 1, 2000, agent's license application; 2) since murder is the most serious of crimes, the Department did not act arbtitrarily in denying the agent's license; and 3) since the SOL is not a bar to inititation of disciplinary proceedings against an attorney, the same rule holds for insurance agents. Also, equitable estoppel does not apply to the Commonwealth here.
Digested by John
Hamlet
Sitlinger, McGlincy, Theiler
& Karem
NOT PUBLISHED (COA)
MURPHY V. LIBERTY MUTUAL INS. CO.KEITH V. DEPOSIT BANK AND TRUST CO.
CIVIL PROCEDURE: Demand for jury trial must be at commencement of
action or 10 days after service of last pleading directed to such issue under CR
38.02; COA affirmed denial of jury trial; Change of venue
- KRS 452.030 requires any application for change of venue to be made by verified motion.
2006-CA-000908
NOT PUBLISHED: 77
DATE RENDERED: 11/21/2007
CHARLES V. COM.
CRIMINAL: Anders brief and frivolous appeal
2006-CA-001092
NOT PUBLISHED: 70
DATE RENDERED: 11/21/2007
OWENS V. MAYLEBEN
DAMAGES: Puntive damages awarded in auto case by bench
TRIAL: Argument is discretionary to judge in bench trial
2006-CA-001291
NOT PUBLISHED: 95
DATE RENDERED: 11/21/2007
INGRAM V. COM.
CRIMINAL: ADMISSIBILITY UNDER KRE 404(b) FOR PRIOR BAD ACTS; PROSECUTOR GOT AWAY
WITH A "SEND A MESSAGE" ARGUMENT HERE.
2006-CA-001764
NOT PUBLISHED: 85
DATE RENDERED: 11/21/2007
FRALEY V. FRALEY
FAMILY LAW: Maintenance
2006-CA-002153
NOT PUBLISHED: 103
DATE RENDERED: 11/21/2007
MERIDETH V. CITY OF VERSAILLES
EMPLOYMENT: Disability discrimination
2006-CA-002468
NOT PUBLISHED: 85
DATE RENDERED: 11/21/2007
S.C. V. COM.
FAMILY LAW: Committing child to cabinet
2007-CA-000201
NOT PUBLISHED: 78
DATE RENDERED: 11/21/2007
RITCH V. COM.
CRIMINAL: Sentences, concurrent or consecutive
2007-CA-000493
NOT PUBLISHED: 56
DATE RENDERED: 11/21/2007
NORTH V. COM.
CRIMINAL: CR 59.05 untimely
2007-CA-000629
NOT PUBLISHED: 78
DATE RENDERED: 11/21/2007
CAREY V. OSRAM SYLVANIA
WORKERS COMP:
2007-CA-000988
NOT PUBLISHED: 84
DATE RENDERED: 11/21/2007
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