MARRS ELECTRIC CO. V. BASHFORD
APPEALS - Not timely; jurisdiction
2004-CA-002429
PUBLISHED (COA)
DISMISSING (HENRY)
DATE: 4/7/2006
Parties appealed the fact that trial court did not award pre-judgment interest in final and appealable order, but the movant did not plead via CR 59 to alter, amend or vacate such order. Instead, the movant argued that the trial judge "reserved" the issue of pre-judgment interest in earlier proceedings. The CA noted the holding in KFB v Gearhart, 853 S.W.2d 907 (Ky. App., 1993), wherein it stated that even if a trial judge "reserves" an issue to be heard after a final and appealable order is filed, the moving party is still responsible to make a CR 59 motion, and if he does not do so, his appeal will be considered untimely. Thus, the CA held the instant appeal was untimely filed and dismissed the case.
TRI-COUNTY NATIONAL BANK V. GREENPOINT CREDIT, LLC
CIVIL PROCEDURE - Indispensable parties; Statute of Limitations (Conversion)
2005-CA-000013
PUBLISHED (COA)
AFFIRMING (VANMETER)
DATE: 4/7/2006
Tri-County appeals grant of Summary Judgment by TC on Greenpoint's claim for conversion. Greenpoint held a security interest in a mobile home that was destroyed by fire for which the homeowner and Greenpoint were jointly issued a check by the home's insurer, Kentucky Farm Bureau, in late 2002. The homeowner then presented the check to Tri-County for cashing, which Tri-County did even though Greenpoint had not also endorsed the check. Greenpoint sued Tri-County for conversion in June 2004 for the bank's violation of KRS 355.3-420. The TC entered Summary Judgment for Greenpoint, noting that the bank admitted to negotiating the check without Greenpoint's endorsement. On appeal, Tri-County cites several errors in TC's ruling: Greenpoint's failure to name an indispensible party, and the expiration of the applicable statute of limitations.
Held: COA affirms the TC's grant of Greenpoint's MSJ, noting that Tri-County had not preserved its argument that Greenpoint should have named KFB and Republic Bank (as drawer and payor of the check, respectively) as defendants as well since the burden is on the party who believes an indispensible party should be joined to file the appropriate motion in an effort to join such a party. Tri-County never filed any such motion or otherwise brought the issue to the attention of the TC, so the COA ruled that the issue was not subject to appellate review.
COA also rejects the statute of limitations argument, noting that Greenpoint's action did not allege any breach of warranties as contained in KRS 355.4-207 as Tri-County contends, but rather asserted a conversion claim. Per KRS 355.3-118(7), an action for conversion of a negotiable instrument must be commenced within 3 years after the claim accrues. COA concludes that Greenpoint's suit came 18 months after the conversion, which was clearly within the allotted timeframe.
DUNLAP V. COM.
CRIMINAL - DUI Seatbelt Roadblocks
2004-CA-002058
PUBLISHED (COA)
AFFIRMING (JOHNSON)
DATE: 4/7/2006
Dunlap was stopped at a roadblock in Carroll County as part of the "Buckle Up Kentucky" highway safety campaign. Upon approaching his vehicle, an officer smelled alcohol. Dunlap then failed a series of field sobriety tests. The district court denied his motions to suppress, and Dunlap entered a conditional guilty plea to DUI. The circuit court affirmed his conviction. The SC granted discretionary review and held that the seatbelt roadblock was minimally intrusive and did not involve the exercise of unfettered discretion by law enforcement officers. Consequently, the roadblock did not offend the federal or state constitutions.
HUGENBERG V. WEST AMERIDAN INS. CO.
INSURANCE - Exclusions (Permissive Use)
2004-CA-001472PUBLISHED (COA) MINTON
OPINION AFFIRMING CASE NOS. 2004-CA- 2004-CA-2172-MR
1472-MR, 2004-CA-1490-MR, AND 2004-CA-1491-MR
OPINION REVERSING AND REMANDING CASE NOS. 2004-CA-2127-MR AND 2004-CA-2172-MR
DATE: 4/7/2006
This opinion deals with 5 unconsolidated appeals dealing with the same MVA. SJ in three of the appeals is affirmed; it is reversed and remanded in the remaining two.
A teenager ("Mikael") obtains beer through his sister's boyfriend, takes boyfriend's car, drinks the beer with several friends at a local cemetery, and gets into a MVA, causing brain damaged to a friend. Friend's parents sue everyone. On appeal, the issues are: 1) Mikael's parents' negligent supervision; 2) Mikael's parents' homeowners policy coverage; 3) Mikael's parents' auto policy coverage; and 4) boyfriend's auto policy coverage.
The CA holds that the negligent supervision claim was properly dismissed on SJ because the parent's owed no duty to the appellants as his actions were not foreseeable and the child was not under the parents' immediate control. As to the parents' homeowners coverage, the CA holds that a clear and unambiguous motor vehicle exclusion properly prevents homeowners coverage. As to the parents' auto coverage, The CA holds that SJ was properly granted as coverage was excluded under a non-permissive user exclusion or "entitlement exclusion," which requires coverage only for a vehicle that the insured is using with a reasonable belief that he is entitled to do so. Mikael's testimony showed that he did not believe he had permission to use the car. Finally, as to the boyfriend's auto coverage, CA holds that a material question of fact exists as to whether Mikael was a permissive user precluding summary judgment.
JEFFERSON COUNTY PUBLIC SCHOOLS V. STEPHENS
WORKERS COMPENSATION - Unexplained Fall
2005-CA-001677
PUBLISHED (COA)
AFFIRMING (MCANULTY)
DATE: 4/7/2006
The Court of Appeals affirmed the decision of the ALJ that the claimant’s fall at work was covered by workers compensation. The claimant fell while she was walking down the hall, and there was no explanation for it. The COA cited law that creates a rebuttable presumption that a fall that occurs on the employer’s premises and during the employee’s work hours arose out of the employment. The employer argued that the fall was “idiopathic” or caused by a medical condition of the employee because there was no other explanation for it, but this argument was rejected due to substantial evidence that it was simply an unexplained fall.
BIZZACK V. HUME
ZONING - Res Judicata
2004-CA-002592
PUBLISHED (COA)
REVERSING AND REMANDING WITH DIRECTIONS (MILLER)
DATE: 4/7/2006
In 1997 the Bizzacks proposed to change the zoning on their property from professional office to highway commercial, and the Frankfort-Franklin County Planning Commission (“Commission”) approved the change. The Franklin County Fiscal Court (“Fiscal Court”) adopted the Commission’s findings and approved the amendment. On appeal by the surrounding landowners (“Hume”), the Franklin Circuit Court found that the Commission and the Fiscal Court failed to analyze changes in the area in light of the standards in KRS 100.213, and remanded the case to the Fiscal Court.
The Fiscal Court did not appropriately reconsider the zone change. Instead, it conducted an ex parte meeting with the Bizzacks’ attorney to prepare findings that would satisfy the court. The Fiscal Court held two meetings in 1998 to give first and second readings to the proposed zone map amendment without allowing debate or considering other findings. This second adoption of the amendment was appealed to Franklin Circuit Court, which vacated the decision based on the unfairness of the Fiscal Court procedures. It held that the result of the ex parte contact was a denial of due process to the affected landowners and refused to remand the case back to the Fiscal Court. The Bizzacks appealed to the court of appeals, which dismissed the appeal for failure to name the Fiscal Court as a party.
In 2001, the Bizzacks again applied to the Commission for the same zoning change. The Commission voted 5-4 to approve the request. The Fiscal Court voted not to hold a new hearing, but to place an ordinance on its agenda. It added a finding that the proposed map amendment was in agreement with the comprehensive plan, and adopted the zone change. The circuit court upheld the Fiscal Court on multiple grounds. Hume appealed to the court of appeals, which reversed the zone change because the Fiscal Court did not conduct its own evidentiary hearing or review the transcript of the Commission’s hearing, and the facts in evidence were insufficient to support the decision. The Bizzacks moved the Supreme Court for discretionary review, which was denied June 9, 2004.
On June 24, 2003, the Bizzacks filed the same zone change request with the Commission. The Commission held a hearing on the application, and voted to a 5-5 deadlock. The Commission forwarded the application to the Fiscal Court without a recommendation, and the Fiscal Court granted the rezoning. Hume again appealed to the circuit court, which reversed the rezoning, holding that it was improper to apply for rezoning while the prior rezoning decision was on appeal. The Bizzacks appealed to the court of appeals.
The Bizzacks claimed that the circuit court’s opinion that res judicata barred the filing of the newest rezoning application was error. The court noted that the general law is that res judicata applies in administrative zoning decisions unless it is shown that there has been a substantial change of circumstances since the earlier denial. Because the Fiscal Court did not make any findings regarding the change in circumstances, the court reversed the circuit court and remanded the case to the Fiscal Court to determine whether there were any changes since its previous denial of the Bizzacks’ prior application to overcome res judicata.
Thanks to Scott Byrd, Patrick Bouldin, John Hamlet, Cherry Henault, Sam Hinkle, Chad Kessinger, Stephen Keller, J. Russell Lloyd, Michelle Eisenmenger Mapes , Peter Naake, Bryan Pierce, Alma Puissegur, Paul Schurman, Michael Stevens and James Worthington for their efforts in digesting Kentucky's appellate decisions.
