TIPS Decisions: Court of Appeals for Nov. 18, 2005

Published decisions.

BROZOWSKI V. JOHNSON, M.D.
APPEALS - Not timely filed (substantial compliance with SCR 3.030(2) does not compel different result)
2004-CA-000256
PUBLISHED AFFIRMING
JUDGE: VANMETER
Date: 11/18/2005

Denial of Rule 60.02 relief is appealable.

UNIVERSITY OF LOUISVILLE V. RAM ENGINEERING & CONSTRUCTION
DAMAGES - Prejudgment Interest
2004-CA-001752
PUBLISHED
AFFIRMING
JUDGE:SCHRODER
Date: 11/18/2005

CA affirms award of prejudgment interest against UofL on the grounds that statute waives sovereign immunity in contract actions against the state, with the only limitation being a cap on total damages of twice the original contract price.

NOT to be Published.

RICHARDSON V. NICHOLS
APPEALS - Untimely Notice and Appeal dismissed for filing notice after 30 days
2004-CA-002071
Not Published
Date: 11/18/2005

PALMER V. CSX TRANSPORTATION, INC.
CIVIL PROCEDURE - Dismissal for failure to disclose experts timely
2004-CA-002185
Not Published
Date: 11/18/2005

In this FELA action, the COA held the trial court did not abuse its discretion in dismissing plaintiff's claims for repeated failures to comply with court ordered pretrial order and disclose expert witnesses.  Ward distinguished.

COOK V. CHRISTOPHER FAMILY, LLC
CIVIL PROCEDURE - Trial Continuance (no abuse of discretion)
2003-CA-001116
Not Published
Date: 11/18/2005

Not abuse of discretion to deny continuance under the fact of this case, noting that counsel was given a 90-minute opportunity to prepare for cross examination of witness.

STEWART V. FAST FORWARD VIDEO, INC.
TORTS -
2003-CA-002451
Not Published
Date: 11/18/2005

This case has an odd set of facts as Stewart a 50+ year Ph.D. liked to visit the video star and with the young females working there when one night some young men showed up also liking to socialize with the young girls.  At this time, one of these young men exhibited behavior Stewart believed was inappropriate (snapping one of the girl's bra strap).  Stewart was offended and intervened. The exchanged between Stewart and the young black man escalated with allegations that Stewart made racial epithets.  The young black man challenged Stewart to a fight outside, and Stewart responded "that he would not fight Hocker unless a lawyer drafted a contract stating that Hocker would not sue him."  Well, things went from bad to worse, and a fight ensued with Stewart getting the orbit of his eye broken. Stewart left and later sued the store claiming they knew that a dangerous and hazard condition had been created.  Jury deliberated for 13 minutes, returning a verdict in favor of the store.

COA found Stewart the aggressor and affirmed the verdict as bit being flagrantly against the evidence.

Note.  Not much law, but a story on interest nonetheless.

CHILDERS V. CHILDERS
TORTS - Undue influence (real estate transaction)
2004-CA-001333
Not Published
Date: 11/18/2005

Other heirs not to happy with son's development of close relationship with  Ruth, his mother,  when she got ill and claimed undue influence when mom gave him power of attorney.  Ruth’s condition continued to deteriorate, and she soon became entirely dependent upon Danny and his wife for her personal care. Danny became intimately involved in Ruth’s finances.  Danny undertook so close a fiduciary and confidential relationship with Ruth as to suffice to create a climate of undue influence. See Hall v. Orme, 146 Ky. 467, 142 S.W. 1077 (Ky. 1912); Sword v. Fields, 192 Ky. 629, 234 S.W. 202 (Ky. 1921).

CAHILL V. CITY OF ELIZABETHTOWN
TORTS - Defenses (Qualified immunity of police officers)
2005-CA-000023
Not Published
Date: 11/18/2005

CA affirms SJ dismissing false imprisonment claims.

Appellant deposited a $15,000 check in his account at First Federal within the WalMart in Elizabethtown. (The money was proceeds of a casualty insurance policy). He withdrew the money a few days later. About a week later, a bank clerk informed him the account was overdrawn b/c First Federal believed the check was forged and dishonored it. The bank filed a civil suit shortly thereafter.

About a month later, a bank employee saw the appellants shopping in the WalMart and called the police claiming the bank had had a warrant issued for Cahill's arrest out of another county. A bank security officer later called the police and erroneously confirmed the warrant's existence. A dispatcher in the allegedly-issuing county also erroneously confirmed the warrant's existence, saying it would be faxed to the local police shortly. A police officer caught up with Cahill at a gas station down the street and held him, handcuffed, in his cruiser for about 10 minutes while local dispatch confirmed that no such warrant ever existed.

CA disagreed with TC, holding that this was an arrest, not just an investigatory stop, but affirmed, holding that the officers were entitled to qualified immunity.

Thanks to Chad Kessinger, Cherry Hennault, Mike Stevens, and John Hamlett for assisting in digesting our torts, insurance and procedure summaries.