Civil TIPs: Court of Appeals - Dec. 29, 2005

CIVIL DECISIONS
TORTS, INSURANCE, PROCEDURE (TIPs)
COA FOR Dec. 29, 2005

PUBLISHED.   None.

NOT PUBLISHED

SMITH V. HOUSING AUTHORITY OF MIDDLESBOROUGH
CIVIL PROCEDURE - Claims Preclusion
2004-CA-002190
Not Published 
Date: 12/29/2005

The CA reverses and remands this retaliatory discharge case containing a direct and a cross-appeal.

This case, and those preceeding it, have lengthy and complex factual histories briefly described as follows. Appellant Smith sued HAM for failure to pay him as an "on-call" employee. Bell Cir. Ct. granted him SJ and awarded $28K+. The CA reversed, holding that there was a factual question as to whether Smith was an "on-call" employee or "subject to call" employee.  On remand, Bell Cir. Ct. granted HAM's motion to dismiss for lack of subject matter jurisdiction. The CA reversed, directing that Smith and co-plaintiff be allowed to proceed. The SC affirmed.

Smith was terminated for allegedly using racial slurs at work. Smith filed a dec action to review the termination; he later amended to include a claim under the Whistleblower act. Both complaints were dismissed. He later filed this action for retaliatory discharge. HAM moved to dismiss, arguing res judicata.  The TC denied this motion. A jury awarded Smith $164K on the discharge claim and $200K on an IIED. HAM filed a motion to vacate, JNOV, new trial, arguing, among other things, claim preclusion. The TC granted JNOV on the IIED claim only. Amended Judgment was entered awarding Smith $164K. Both sides appeal.

CA only addresses the issue of claim preclusion, as it is determinative of the whole case. CA agrees with HAM argument that Smith impermissibly split his common law retaliatory discharge claim after the whistleblower claim was dismissed. The parties and issues were identical and the claim was dismissed on its merits.

KALLOP V. BLOOMFIELD
PROPERTY - Realty (adverse possession)
2004-CA-001539
Not Published
Date: 12/29/2005

Appeal of TC Summary Judgment regarding small parking lot in Winchester, Kentucky,  Confusing the issue was that parcel had been included in both parties chain of title, however, the Kallop’s inclusion was erroneous.  Kallops then argued that they had title by adverse possession because they had exclusively kept and maintained it for the statutory period of time.  CA upheld SJ based on finding that Kallops deed which included parcel also simultaneously provided assignment of lease which made ownership permissive and not hostile.

Thanks to Chad Kessinger, Cherry Hennault, Mike Stevens, Bryan Pierce, and John Hamlet for assisting in digesting our Civil Decisions, to include the TIPS -  torts, insurance and procedure summaries.