CIVIL DECISIONS AND TIPS (Torts, Insurance Procedural Stuff)
COURT OF APPEALS - Feb. 10, 2006
PUBLISHED:
UNITED STRUCTURAL SYSTEMS, LTC V. ERI FALLS, INC.
CIVIL - Indemnity
2004-CA-002103
PUBLISHED
VACATING AND REMANDING (COMBS)
Date: 2/10/2006 MODIFIED BUT ORIGINALLY RENDERED ON 11/23/2005
This decision was originally rendered on 11/9/2006. A finding of liability to the injured party is required before indemnity can arise at common law.
TOLER V. RAPID AMERICAN
CIVIL PROCEDURE - Dismissal for lack of prosecution
2004-CA-002281
VACATING AND REMANDING [HENRY, J.]
Published
Date: 2/10/2006
COA vacated and remanded dismissal for lack of prosecution. The two year delay was based on the Jefferson County Asbestos Master Order, and the record was unclear whether the Ward v. Housman, 809 S.W. 2d 717 (Ky. App., 1991) factors were properly considered. See also, Scarborough v. Eubanks, 747 F.2d 871 (3d. Cir, 1984).
The following factors should be considered: (1) the extent of the party’s personal responsibility; (2) the history of dilatoriness; (3) whether the attorney’s conduct was willful and in bad faith; (4) the meritoriousness of the claim; (5) prejudice to the other party; and (6) the availability of alternative sanctions.
'The responsibility to make such findings as are set forth in Ward before dismissing a case with prejudice falls solely upon the trial court. Accordingly, even though we understand and sympathize with the court’s desire to move the cases on its docket along in a timely and expeditious manner, we find ourselves compelled to vacate its orders as to dismissal here and to remand this action for further consideration in light of Ward. In doing so, we express no view as to whether dismissal with prejudice will ultimately be merited.'
BROCKMAN (LAVIT) V. COM. OF KY (JUDGE GEORGE)
CIVIL PROCEDURE - Contempt
2004-CA-000982
Rendered 12/9/2006;
PUBLISHED 2/10/2006
VACATING AND REMANDING (JOHNSON, J.)
Theodore H. Lavit, Real Party In Interest, appealed order entered by Judge Doughlas M. George of the Taylor Circuit Court which held Lavit in contempt of court and fined him $825.001 for his failure to appear in court on November 10, 2003, for the trial of Commonwealth of Kentucky v. Catina Brockman. Held the trial court erred by finding Lavit in indirect criminal contempt of court without allowing him to have a jury trial.
STEWART V. COM.
EVIDENCE - Opinion Evidence (reputation, bad acts, change of KRE 608)
2004-CA-002573
Published
REVERSING AND REMANDING (POTTER, J.)
Date: 2/10/2006
Criminal conviction was reversed when trial judge sustained Commonwealth's objection striking opinion evidence as KRE 608 had been changed in 2003 to mirror the Federal Rules of Evidence and the evidence was admissible. "Because Beve’s (Stewart) trial occurred in 2004, after the effective date of the amendment to KRE 608(a), the issue of the admissibility of the testimony regarding Brenda’s truthfulness must be determined under the new rule that a witness, if qualified, can express an opinion as to another witness’s character for telling the truth. Although Kentucky has yet to address the scope of KRE 608(a), the advisory notes to the federal rule and cases applying that rule make clear that opinion testimony such as that offered in this case is admissible."
In addition to presenting two alibi witnesses, Beve called Brenda’s mother as a witness to give evidence concerning Brenda’s character for truthfulness. When asked, she responded, “I don’t know if she’ll tell you the truth or not. She might and she might not.” The trial court sustained the Commonwealth’s objection to the response and admonished the jury to disregard the question and the answer. We agree with Beve that the trial court erred when it sustained the Commonwealth’s objection. (emphasis added).
EMBRY V. TURNER
PROPERTY - Real Property (boundary line dispute, nov, new trial)
2004-CA-002040
Published
AFFIRMING (HENRY, J.)
Date: 2/10/2006
This appeal arose from a boundary line dispute (aka the 'fence') in which the Turners prevailed with the Embrys filing a motion for new trial and judgment NOV. The judge granted the new trial motion (one year later!), and then set aside the new trial order after the Turners so filed their own motion. (Confuses yet?) In setting aside the order for a new trial and reinstating the trial verdict, the judge admitted in his order that he was only trying to get the litigants to settle the matter. COA took the trial judge (Ronnie C. Dortch) to task for this misapplication of the rules.
Here is the trial judge's acknowledgement of same in his order setting aside the new trial order. Emphasis is from the opinion of the COA.
This matter was tried before a Jury in Butler Circuit Court and the Jury returned a verdict in favor of Defendant on January 28, 2002. Prior to this matter being tried, this Court had required the Plaintiff and Defendant to attempt to settle this matter on more than one occasion. This Court had always felt that, for various reasons, this is a matter that should have been settled without the necessity of trial; however, the parties were unable settle [sic] the matter with the resultant jury trial. Thereafter, on February 11, 2003, this Court entered its Order sustaining the Plaintiff’s motion for a new trial but overruling the Plaintiff’s motion for a judgment notwithstanding the verdict. Candidly, this Court issued its Order for a new trial simply to allow the parties an additional chance to settle the case without the necessity of an appeal, with the parties incurring additional attorneys’ fees, etc. even at that point in the litigation. This Court felt that the parties could and should be able to settle this matter but this Court was wrong. Therefore, this Court finds that it was in error when it sustained the Plaintiff’s motion for a new trial and it is therefore this Court’s prerogative to correct its earlier error. (Emphasis added by COA in their opinion).
The first issue addressed was 'minor' in that "the grant of a new trial under CR1 59.01 terminates the running of time for appeal. CR 73.02(1)(e). In this case there was no new trial and therefore no new final judgment from which to appeal. Nevertheless, the COA was satisfied that the court continued to have jurisdiction to enter an order setting aside its prior order granting a new trial, as was done here. Thus, the appeal in this case was timely filed.
The next issue was 'major' after addressing the 'procedural anomalies' was the denial of the new trial motion. In undertaking the analysis of the trial judge’s eventual decision not to allow a new trial here, the COA "must be mindful that the decision is presumptively correct, and that we cannot reverse unless it was clearly erroneous. McVey v. Berman, 836 S.W.2d 445, 448 (Ky.App. 1992) . . .; see also Prater v. Arnett, 648 S.W.2d 82, 86 (Ky.App. 1983). . . ."
In affirming the the denial of the new trial motion, the COA rejected these issues raised by the losing party - evidence not substantial and the credibility of an expert was question (rejected since function of jury is to determine questions of credibility and issues of fact where the evidence is conflicting, Woods v. Asher, 324 S.W.2d 809 (Ky., 1959)); verdict was contrary to the law (reject the loser's arguments on 'agreed boundary line' which would have allowed for parol agreements to establish the property line and which was premised on estoppel).
The three cases addressed on the agreed boundary line issue are: Faulkner v. Lloyd, 253 S.W.2d 972 (Ky. 1952); Redman v. Redman, 240 S.W.2d 553 (Ky. 1951); and Wolf v. Harper, 313 Ky. 688, 233 S.W.2d 409 (1950).
In addressing the impropriety of the trial judges actions, the COA stated the trial judges "interference was inappropriate at best and injudicious at worst."
Finally, we must address the major peculiarity present in this case – the trial judge’s grant of a new trial upon grounds that he ultimately admitted that he fabricated in an effort to coerce a settlement. It is one thing for a judge to mediate settlement of a case prior to trial, which may be done if ethical requirements are scrupulously observed. See SCR3 4.300 Canon 3 B(7)(d); Home Depot U.S.A., Inc. v. Saul Subsidiary I Ltd. Partnership, 159 S.W.3d 339, 341 (Ky.App. 2004). It is quite another to set aside an otherwise valid jury verdict for reasons of personal belief or bias. The overturning of a jury verdict in favor of a new trial is a matter of the utmost seriousness, and should only occur when the specific criteria set forth in CR 59.01 are carefully considered and met. To flout those criteria due to one’s personal belief about a case is incompatible with our system of justice. Such conduct tends to erode public confidence in the fairness and impartiality of our court system. Nearly four years have passed since a Butler County jury unanimously decided this case in favor of the appellees. At least two years of delay in bringing this case to its ultimate conclusion was caused by the trial judge’s improper – even if well-intentioned - intervention. His interference was inappropriate at best and injudicious at worst.
NOT PUBLISHED:
ANGEL V. COM.
CRIMINAL - RCr 11.42 Denied
2005-CA-000819
NOT PUBLISHED
AFFIRMING (JOHNSON)
Date: 2/10/2006
SHIFERAW V. MILLS
APPEALS - Error not timely raised or addressed in lower court re proper service of motion
2004-CA-002171
NOT PUBLISHED
Date: 2/10/2006
HARLAN COUNTY BOARD OF ED. V. INTERNATIONAL UNION
CIVIL - ADR; Enforcement of arbitor's decision
2004-CA-002175
NOT PUBLISHED
AFFIRMING (JOHNSON)
Date: 2/10/2006
Affirmed lower court and arbitor's award as UMWA was entitled to judgment as a matter of law. Courts in general “have no business weighing the merits of the grievance, considering whether there is equity in a particular claim.”
WELCH V. EDDS, M.D.
CIVIL - STATUTE OF LIMITATIONS - Discovery Rule in Medical Negligence
2004-CA-002255
NOT PUBLISHED
VACATING AND REMANDING (KNOPF)
Date: 2/10/2006
Plaintiff/patient was entitled to rely on what her physicians told her, and CJOA did not believe she should have discovered the false statements any sooner. Her claim based on the lack of informed consent is thus not barred by the statute of limitations.
However, the COA was not willing to go beyond that issue. The parties did not treat this as an informed-consent case, and did not present the trial court with the appropriate sources for determining whether the plaintiff/patient had raised material issues of fact on all the elements of her cause of action. They have raised the informed-consent issue on appeal, but as a Court of review it is generally unwilling to address matters the trial court has not had an opportunity to rule upon. These are important and complex issues deserving of a fully developed record and the summary judgment is thus vacated and the matter remanded in light of the law of informed consent.
STEELE VL. MCDONALD
CIVIL PROCEDURE - Writ of Prohibition (denied)
2005-CA-002038
NOT PUBLISHED
OPINION AND ORDER DENYING PETITION FOR WRIT OF PROHIBITION (KNOPF)
Date: 2/10/2006
CA denies petition for writ of prohibition preventing DNA testing of petitioner's children, finding that TC was justified in ordering this type of physical examination. [John Hamlet]
FERRELL V. RUDD
CIVIL PROCEDURE - Costs to Prevailing Party
2005-CA-000530
NOT PUBLISHED
AFFIRMING IN PART, VACATING IN PART, AND REMANDING (DYCHE)
Date: 2/10/2006
LOVELACE V. HOLIDAY INN HURSTBOURNE
CIVIL PROCEDURE - Judgment NOV
2004-CA-001412
NOT PUBLISHED
REVERSING AND REMANDING; MINTON
Date: 2/10/2006
The trial court granted j.n.o.v. to Holiday Inn Hurstbourne, setting aside a substantial jury verdict awarded to Richard Lovelace on his personal injury claim against the hotel for a slip and fall jury verdict awarding plaintiff $887,379.86 (subject to 15 per cent comparative). Jefferson Circuit Court trial judge Thomas Wine was reversed after he granted judgment NOV (notwithstanding the verdict).
COA reversed the j.n.o.v. and remanded the case back to the circuit court with direction to reinstate the original judgment because the COA held that Lovelace presented proof at trial sufficient to create a rebuttable presumption of Holiday Inn’s liability, which precluded entry of the j.n.o.v.
A trial court may not enter judgment notwithstanding the verdict (j.n.o.v.) unless there is a complete absence of proof on a material issue or there is no dispute on issues of fact upon which reasonable jurors could differ. I
NOTE: Judge Thomas Wine who was reversed in this decision is a candidate for Court of Appeals.
BARRISTER FARM LLC V. UPSON DOWN FARMS, INC.
CIVIL PROCEDURE - Summary Judgment (No genuine issue of material fact in hay storage case)
2004-CA-002651
NOT PUBLISHED
AFFIRMING (SCHRODER)
Date: 2/10/2006
MERRICK V. COM.
EVIDENCE - Opinions ('collective facts rule' and lay testimony)
2002-CA-002034
NOT PUBLISHED AFFIRMING (GUIDUGLI)
Date: 2/10/2006
This was a criminal case involving testimony by avowable that the victim was 'out of control'. COA did not buy it, and affirmed conviction and exclusion of the opinion. A nonexpert witness may express an opinion which is rationally based on the perception of the witness and helpful to a determination of a fact in issue. KRE 701. A corollary to this rule is the concept known as the “collective facts rule,” which permits a lay witness to resort to a conclusion or an opinion to describe an observed phenomenon where there exists no other feasible alternative by which to communicate that observation to the trier of fact. See R. Lawson, The Kentucky Evidence Law Handbook § 6.05, at 275-76 (3d ed. Michie 1993).
CRAWFORD V. MARTIN
PROPERTY - Leases
2003-CA-002494
NOT PUBLISHED
AFFIRMING IN PART, REVERSING AND REMANDING IN PART [TAYLOR]
Date: 2/10/2006
Complicated case involving default of payment on sublease. Appeal on issue of whether a lease was mutually terminated or not. Remanded on that issue alone.
BRINKLEY V. WILSON
PROPERTY - Real Property (quasi-easement)
2005-CA-000892
NOT PUBLISHED
AFFIRMING (GUIDUGLI)
Date: 2/10/2006
CA denies appeal denying Brinkley either a prescriptive or quasi easement over parcel.
MIFFLIN V. MIFFLIN
WILLS, ESTATES, PROBATE -
2002-CA-000225
NOT PUBLISHED (GUIDUGLI)
REVERSING AND REMANDING
Date: 2/10/2006
This case was before the Court of Appeals following a remand by the Kentucky Supreme Court. The Supreme Court addressed a procedural issue and instructed the Court of Appeals to consider the appeal despite the records’ inclusion of only 28 seconds of the videotaped trial and 3 pages of testimony. It was up to the appellee to designate additional portions of the record. After summarizing the resolution of that procedural issue, the Court held that the Circuit Court had erred in calculating the damages. While sympathizing with the Circuit Court’s difficulty, the Court of Appeals remanded with a suggested strategy for the calculation. The Court of Appeals noted that the difficulty rose in part from incomplete record-keeping during the time that the family agreed on matters. The case thus serves as a reminder of the important role of a skilled, competent fiduciary even when it appears that the estate will be a harmonious one.
Thanks to John Hamlet, Cherry Henault, Sam Hinkle, Chad Kessinger, Stephen Keller, Paul C. O'Bryan, Bryan Pierce, Paul Schurman, Michael Stevens and James Worthington for their efforts in digesting Kentucky's CIVIL appellate decisions.
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