Kentucky Law Review

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From wwntradio

Judge Moore Applauds Kentucky Court for Defending the Acknowledgment of God

Judge Roy Moore (R) from Gallant applauded the Kentucky Supreme Court for their recent decision upholding a Kentucky homeland security law which acknowledged Kentucky's "reliance upon Almighty God" for the "safety and security of the Commonwealth.

COA Args: Court of Appeals to hear challenge to Lexington noise ordinance Sept. 22 in Elizabethtown

Court of Appeals to hear challenge to Lexington noise ordinance Sept. 22 in Elizabethtown

FRANKFORT, Ky. -- The Kentucky Court of Appeals will hear a citizen’s challenge to the Lexington noise ordinance when the court convenes Thursday, Sept. 22, in Elizabethtown. Proceedings are open to the public and will take place at 1 p.m. EDT at the Hardin County Justice Center at 120 E. Dixie Ave.

Will McGinnis is appealing Fayette Circuit Court’s decision to let stand a citation he received for violating Lexington’s noise ordinance. McGinnis is representing himself in the appeal. He argues that the noise ordinance is vague, has no relationship to a nuisance to any residences and that it does not define the times and noise levels that constitute a violation.
 
A three-judge panel comprised of Court of Appeals Judges Donna L. Dixon, Joy A. Moore and Kelly Thompson will hear arguments in the case. Judge Thompson will preside.

 

THURSDAY, SEPT. 22, 2011

1 PM     2010-CA-000893    
              WILL MCGINNIS v COMMONWEALTH OF KENTUCKY

Summary: Pro se appellant appeals a violation of the Lexington Fayette County Urban Government noise ordinance, arguing that it is vague and has no relationship to a nuisance to any residences or definitions as to time or the level of noise that cause a nuisance. Kentucky Attorney General Jack Conway and John Hayne II will represent the Commonwealth of Kentucky. Fayette County Circuit Court Judge Ernesto Scorsone presided in the original case.

COURTS: Sealing of court records addressed by COA in Kincaid v. Kincaid - inherent authority of court vs. public's right of access

Open courts are not the same as transparent courts.  Government records and access to those records are not the same either.  I remember when I left active duty as an Army Judge Advocate and began practicing civil law in Kentucky and was surprised at the "inherent" authority exercised by some courts (aka judges) in sealing records from public scrutiny.  I understood when the access to those records was strictly regulated by statute, but it was surprising when I discovered the lack  of uniformity (or so it seemed to me) of sealing other records.

I had dealt with this interplay in the federal governement relative to the disclosure of records with the Privacy Act protections against disclosure versus the Freedom of Information Act's entitlement to the public to access records.

Well, the following decision by the Court of Appeals attempts to flesh that standard out some.

Here is the decision, link and short extract.  The link is to the full text of the decision, which is published  and dated Sept. 2, 2011.

KINCAID (JOAN), ET AL
VS.
KINCAID (BRETT), ET AL
OPINION AND ORDER UNSEALING RECORDS AND OPINION AFFIRMING IN PART, REVERSING AND REMANDING IN PART
THOMPSON (PRESIDING JUDGE)
ACREE (CONCURS) AND LAMBERT (CONCURS)
2009-CA-002202-MR
2009-CA-002203-MR
2009-CA-002263-MR
TO BE PUBLISHED
FAYETTE

THOMPSON, JUDGE: The controversy between the parties is whether Joan Kincaid and Jane Kincaid (the Kincaid daughters) and Michael D. Foley, an unrelated accountant, collectively referred to as (the advisory committee members), are entitled to compensation for their service as advisors to the estate  and trust of Garvice D. Kincaid.1    However, before addressing the issues presented by the parties, this Court is compelled to discuss the sealing of the record. Although the parties sought and achieved the sealing of the entire record, we believe that the matter is one that is of significant public interest that has infrequently been the subject of judicial opinion. Therefore, we take this opportunity to provide guidance to the trial courts.

DISCUSSION ON SEALING RECORDS IN INSTANCES  WHERE LEGISLATURE HAS NOT DESIGNATED AS CONFIDENTIAL.

The sealing of court records offends the public’s right to access court documents or material that derives from the common law and the First Amendment. Roman Catholic Diocese of Lexington v. Noble, 92 S.W.3d 724 (Ky. 2002).4    It is a right so entrenched in our judicial system that there is a presumption that judicial records are available to the public. Courier-Journal v. McDonald- Burkman, 298 S.W.3d 846 (Ky. 2009). Yet, it is becoming an increasing practice for trial courts to seal records without a hearing or findings and only because the parties do not want their case open to the public. While it is understandable that parties seek to avoid public embarrassment, scrutiny, or financial exposure, the courts must use caution when denying public access to court records.
Although a trial court retains the inherent supervisory power over its own records and files and has the discretionary authority to deny access to its records and files, it should be done only for compelling reasons. Roman Catholic Diocese of Lexington, 92 S.W.3d at 730. When exercising that discretion, the trial court is required to balance its inherent right to control and the public’s presumptive right of access. Cline v. Spectrum Care Academy, Inc., 316 S.W.3d 320, 325 (Ky.App. 2010). Our concern in this case is the procedure followed by the trial court when determining whether to seal court records. Unfortunately, there is no applicable Kentucky Rule of Civil Procedure. However, we believe that the case law does provide guidance to the trial court in deciding whether to seal a record and the procedure that must be followed.
In Lexington Herald-Leader Co., Inc. v. Meigs, 660 S.W.2d 658 (Ky. 1983), the Court addressed the issue in the context of an order closing a criminal proceeding to the public and the press. We summarize the procedure set forth:
(1) There must be a hearing; (2) The trial court must consider less restrictive means;
(3) The burden of proof is upon the party seeking closure and it must be established that:

(a) the right or interest sought to be protected is sufficiently important to warrant the extraordinary protection of the closed court;
(b) the asserted right or interest probably cannot be adequately protected by less restrictive alternatives to closure; and
(c) the right or interest he seeks to protect will be protected by a closed proceeding.
Id. at 664. The Kentucky Supreme Court has held that the principles enunciated in Meigs are applicable to court records and civil proceedings. Courier-Journal and Louisville Times Co. v. Peers, 747 S.W.2d 125 (Ky. 1988). Thus, although guidance is absent from our civil rules, the procedure in Meigs must be followed.
We add an additional principle that emerges from the facts in the present case. There was no hearing conducted and no findings by the trial court and, as a result, there was no compelling reason to seal the court record. It was sealed solely because the parties requested confidentiality. We conclude that the parties’ agreement to seal a court record without a hearing and appropriate findings cannot be the basis for denying public access. Otherwise, the fundamental premise of an open and transparent judicial system is undermined.
In conclusion, we note that the rule adopted in Meigs is similar to the comprehensive rule adopted in California. California Rules of Court, Rule 2.550 and 2.551. To provide clarity to our trial courts and to preserve the integrity of an open and transparent judiciary, we encourage the Kentucky Supreme Court to follow those states that have promulgated civil rules providing procedural guidance for sealing records.
NOW, THEREFORE, this Court hereby ORDERS that all records in these appeals are hereby unsealed.

TRUSTEE FEES

n summary, we hold that Central Bank is entitled to supplement its executor fee to which it is entitled pursuant to KRS 395.150 and KRS 395.195(18) for the purpose of compensating the advisory committee members for their sixteen years of service as advisors to the Bank, as executor and trustee. During their service, the advisors were entangled in complex litigation and burdened with increasing estate assets on the verge of financial collapse to a value of $240 million. Because the circuit court found that the compensation requested is reasonable, it is required to permit Central Bank to supplement its fee in the amount of $1.65 million.
Based on the foregoing, to the extent that the October 28, 2009, order permits Central Bank to compensate the advisory committee members for future services, it is affirmed. However, to the extent that it denied past compensation to the advisory committee members, it is reversed and the case remanded for entry of an order approving the requested supplemental fee to allow Central Bank, as executor and trustee, to compensate the advisory committee members for their service. The advisory committee members’ appeal from the summary judgment denying their request for compensation is moot.

Chief Court of Appeals judge orders probe of leaked abortion ruling

Chief Court of Appeals judge orders probe of leaked abortion ruling

The chief judge of the Kentucky Court of Appeals has asked state police to investigate who leaked a confidential abortion rights ruling to The Courier-Journal and whether criminal laws were broken in the process.

The newspaper published a story last January about the secret decision in which the court ruled 2-1 that minor girls from other states may ask Kentucky judges for permission to have abortions without their parents’ consent.

The court’s ruling, which reversed Jefferson District Judge David Bowles, was issued confidentially under a state law and court rules that allow girls to appeal such decisions anonymously. The newspaper obtained a copy of the decision, which identified the girl only by her initials.

No Fault, PIP Benefits, Wage Loss and Self Employed Income - Proof needed and more addressed in NPO COA decision of Gant v. State Farm

In Gant v. State Farm, NPO, COA 4/22/2011, Judge Moore in a nonpublished COA decision dealt within the PIP context the proof needed to obtain lost wages by a self-employed claimant.  In this case, the claimaint presented a spreadsheet on lost income, but the PIP carrier requested tax returns.  The returns were never provided presuit or during suit.  State Farm obtained summary judgment, and the issues were the burden and the opportunity to present evidence. 

The reason I am noting this decision is the fact that obtaining wage loss for self-employed persons is difficult. Although the tax returns were requested, they were not provided.   However,  if the tax returns had been provided, what would they have calculated the wage loss on gross sales/earnings or net earnings (after expenses etc)? 

All too often, I encounter adjusters who want the net as the basis for calculating wage loss.  This is not correct (IMHO).  Why?  The expenses continue, and it is the wages/earnings that stop.  If the person was employed, then looking at net business income would be the same as looking at the claimant's individual tax returns after deductions, exclusions, standard deductions, etc.  I just wanted to make that point since I am sometimes concerned that appellate decisions ignore the realities of the world.

The other issue which I thought was of interest is that summary judgment motions sometimes are fast and furioius and forego the opportunity to flesh out the facts.  This case has some good law regarding the standard of review on this point.  Please note that the COA held that the opportunity to engage in discovery and prove her point was amply given to the claimant/plaintiff.

The standard for summary judgment is as follows: “if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  CR3 56.03.

Summary judgment is appropriate when it “appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor.” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991). Also, summary judgment cannot be avoided solely on the basis that a party hopes to obtain evidence in the future that will create a genuine issue of material fact. Neal v. Welker, 426 S.W.2d 476, 479-80 (Ky. 1968). However, “summary judgment is only proper after a party has been given ample opportunity to complete discovery[.]” Pendleton Brothers Vending, Inc. v. Commonwealth Finance and Administration Cabinet, 758 S.W.2d 24, 29 (Ky. 1998). It is not necessary that a party actually complete discovery, only that they had an opportunity to do so. Hartford Insurance Group v. Citizens Fidelity Bank & Trust Co., 579 S.W.2d 628, 630 (Ky. App. 1979). We review a grant of summary judgment de novo. Burton v. Kentucky Farm Bureau Mut. Ins. Co., 326 S.W.3d 474, 475 (Ky. App. 2010).

Court of Appeals to hear arguments in Cowan Coalition trust dispute April 12 in Frankfort

Court of Appeals to hear arguments in Cowan Coalition trust dispute April 12 in Frankfort Monday, April 11, 2011

The public is invited to observe as the Court of Appeals hears oral arguments in civil case appeals.

 

 

Appeals: Kentucky Court of Appeals to hear oral arguments Dec. 8 in Lexington

Kentucky Court of Appeals to hear oral arguments Dec. 8 in Lexington

from Kentucky.gov News Center Headlines

The public is invited to observe as the Court of Appeals hears oral arguments in civil cases on appeal from Perry and Pike counties.

From the Kentucky Administrative Office of the Courts: Kentucky Court of Appeals to hear oral arguments Sept. 20-21 in Shelbyville

From the Kentucky Administrative Office of the Courts:

Kentucky Court of Appeals to hear oral arguments Sept. 20-21 in Shelbyville

FRANKFORT, Ky. -- The Kentucky Court of Appeals will hear oral arguments in six civil cases and one criminal case when it convenes Monday and Tuesday, Sept. 20 and 21, at the Shelby County Courthouse in Shelbyville. The civil cases are on appeal from Jefferson County and the criminal case is on appeal from Daviess County. Proceedings will begin at 1:15 p.m. EDT Sept. 20 and 10 a.m. EDT Sept. 21 on the second floor of the courthouse at 501 Main St. Proceedings will be open to the public.
 
A three-judge panel comprised of Court of Appeals Judges Michelle M. Keller, Joy A. Moore and Janet L. Stumbo will hear oral arguments in six of the cases. Court of Appeals Judges Denise G. Clayton, Keller and Moore will hear oral arguments in one case.
 
A docket containing summaries of the cases is below. 
 
SHELBYVILLE DOCKET 
 
Monday, Sept. 20, 2010 
  
1:15 PM     2009CA001412 and 2009CA001588       
                   MICHELE MORGAN v. J. DANIEL LANHAM      
 
Summary: Civil. The appeal is from directed verdicts involving issues of multiple limited liability corporations regarding claims for recovery of unpaid loans and rent. Other issues are fraud/misrepresentation and various evidentiary rulings made by the trial court. The cross-appeal focuses on a directed verdict regarding breach of fiduciary duty.  
 
Jefferson County judge who ruled in the case – Judge Martin F. McDonald      
 
Appellant’s attorneys: Simon Berry and Scott Zoppoth   
 
Appellee’s attorney: Michael O’Connell    
 
2:15 PM     2009CA001427 and 2009CA001436     
                    BRANCH BANKING & TRUST COMPANY v. LARRY E. THOMPSON ET AL.
 
Summary: Civil. The appeal and cross-appeal originate from a foreclosure case. The appellant argues that it was entitled to judgment based on the statute of frauds. The appellant also argues that punitive damages were inappropriate and that the trial court erred in failing to grant a new trial. The cross-appeal focuses on whether the appellant should have been awarded attorney fees.
 
Jefferson County judge who ruled in the case – Judge James M. Shake     
 
Appellant’s attorneys: Daniel Albers Jr., Jean Bird, Mark Robinson and Virginia Snell
 
Appellees’ attorneys: David Hise et al.
 
3 PM     2007CA002426    
              TORI LYNN VAN BERG v. COMMONWEALTH OF KENTUCKY 
 
Summary: Criminal. The appellant claims a double jeopardy error due to a discovery violation by the prosecution. The appellant also claims there was a failure to instruct the jury on entrapment and that there was prosecutorial misconduct.    
 
Daviess County judge who ruled in the case – Judge Henry M. Griffin
 
Appellant’s attorney: Joseph Aprile II
 
Appellee’s attorney: Jeffrey Cross
 
Tuesday, Sept. 21, 2010
 
10 AM     2009CA001352 and 2009CA001389    
                 SUSIE PERRY v. DR. GERALD M. LARSON
 
Summary: Civil. In this medical negligence and wrongful death case, appellant Susie Perry appeals a jury verdict for the defense. Appellee Dr. Gerald M. Larson cross-appeals. Perry argues that the trial court erred by admitting into evidence expert opinion testimony that had not previously been disclosed. She also argues that the trial court erred by excluding testimony related to the decedent’s post-operative physical condition and by dismissing Perry’s loss-of-consortium claim. Larson argues on cross-appeal that the court erred by denying his motions for a directed verdict.    
 
Jefferson County judge who ruled in the case – Judge James M. Shake    
 
Appellant’s attorneys: William Garmer and Jerome Prather 
 
Appellee’s attorney: Donald Brown Jr.
 
10:45 AM     2009CA001442    
                      CARDIOVASCULAR SPECIALISTS, P.S.C. v. NICHOLAOS XENOPOULOS, M.D.
 
Summary: Civil. Cardiovascular Specialists appeals an order entered by the Circuit Court under KRS 271B.16-020, ordering it to provide documents and information sought by one of its shareholders, appellee Dr. Nicholaos Xenopoulos.    
 
Jefferson County judge who ruled in the case – Judge Geoffrey P. Morris
 
Appellant’s attorneys: Robert Craig and Ryan Edwards
 
Appellee’s attorneys: Trevor Earl and Ivan Schell
 
11:30 AM     2009CA001533    
                      EARLENE F. GREENE v. KENTUCKY BOARD OF DENTISTRY
 
Summary: Civil. Appellant Earlene F. Greene appeals the Kentucky Board of Dentistry’s order placing her on probation for a period of five years. She argues that the board’s action was not supported by sufficient evidence and amounted to an abuse of discretion. She also challenges the constitutionality of KRS 13B.150(2)(c), arguing that it does not permit adequate review by a court of the board’s decision.
 
Jefferson County judge who ruled in the case – Judge Geoffrey P. Morris
 
Appellant’s attorney: J. Demoisey 
 
Appellee’s attorneys: William Bausch and Mark Brengelman
 
1:30 PM     2009CA001178     
                   SHAWN M. SMITH v. LOUISVILLE AND JEFFERSON COUNTY METROPOLITAN SEWER DISTRICT
 
Summary: Civil. This is a matter-of-right appeal from a grant of summary judgment. At issue is whether there is a genuine issue of material fact regarding whether the appellant’s deceased was a trespasser and was therefore owed no legal duty by the appellee.    
 
Jefferson County judge who ruled in the case – Judge Irv Maze    
 
Appellant’s attorney: Mat Slechter 
 
Appellee’s attorneys: Gregory Gowen, David Hise, Nancy Schook and Laurence Zielke

Of premises liability, Sorites paradox, law of leverage, and tipping points as they relate to the open and obvious defense and rights to a jury trial

Here is a post I had in draft back on Aug. 18, 2010 with a philosophical critique of the "open and obvious" defense to slip and fall cases (a/k/a premises liability).  To put it succinctly, I never knew why judges were able to deprive a litigant of their right to a jury trial by their own individual perception of what was open and obvious.  Well, in light of a recent decision by the SCOKY, I decided to post this review for the benefit of the readers as an aside that the law's intricacies and balances should give way to some good old common sense.

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A recent decision by the Court of Appeals seems to lose sight (play on words intended) of what really is an "open and obvious" danger in the law of premises liability and how the real world operates.  I suggest a little trip down philosophy lane looking at "Sorites Paradox", with a short side trip into the science of mathematics and leverage, ending up with a read of Malcom Gladwell's "Tipping Point" might be in order.

In the decision of Lewis v. Faulkner Real Estate, Aug. 13, 2010, Judge Denise Clayton rendered a decision that left me rubbing my eyes when the three-member panel unanimously affirmed a summary judgment dismissal of a "slip and fall" case by an invitee on the grounds that the lap-top size hole just off the sidewalk was "open and obvious".  I have seen the pictures, and it was not open and obvious when the claimant was walking and stepped off the side walk.

Briefly, here is the decision with its opening paragraph:

LEWIS (PHILLIP) VS.FAULKNER REAL ESTATE CORPORATION , ET AL.
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
TAYLOR (CONCURS) AND THOMPSON (CONCURS)
2009-CA-001224-MR
NOT TO BE PUBLISHED
JEFFERSON

CLAYTON, JUDGE: While walking his dog, Phillip Lewis was injured when he stepped into a hole on the retail property of Faulkner Real Estate Corporation, Central Retail, LLC, and Central Retail Outlot, LLC (hereinafter “Faulkner”). Lewis appeals from the grant of Faulkner’s summary judgment motion wherein the trial court determined, as a matter of law that he would be unable to prove that Faulkner breached a duty of care owed to him. After careful consideration, we affirm the decision of the trial court.

Jefferson Circuit Judge Judith McDonald-Burkman missed the point (but not the hole apparently), as well as former Jefferson Circuit Court Judge and now Judge of the Court of Appeals Denise Clayton.

The issue as presented was "On appeal, Lewis argues that the condition of the hole, from his perspective, was not open and obvious, and therefore, Faulkner owed him a duty. Faulkner counters that the condition of the hole was noticeable, and thus, under the “open and obvious” doctrine, it did not owe a duty to warn an invitee."

Let's look at this analysis from an open and obvious standpoint.

To counter Faulkner’s argument that the condition of the hole was “open and obvious,” Lewis contends that it is necessary to address the issue of his vantage point as he approached the hole to ascertain whether the hole was “open and obvious”

Basically, the claimant is saying one looks at the danger's openess and obviousness from his vantage point, eg., from the height of his eyes and the angle to the hole as opposed to poised directly overhead and looking down into it.

Lewis proffered photographs that he says show that, given his vantage point, he could not have seen the hole. But Faulkner also provided a photograph, which it maintains shows that, if Lewis had been looking, the condition of the hole would have been within his sight, and also, “open and obvious.” We, however, we do not read Layman as rendering the “open and obvious” condition” of the hole as dependent on Lewis’s vantage point in approaching the hold. Although Layman does say that the vantage point of a party may be a factor to consider, ultimately it reinforces that persons are required to watch where they go. 

Then in one of the most bizarre of pieces of retro-analysis, the COA concludes that a well-manicured hole the size of a laptop computer that a person is specifically looking for after falling in it the day before was open and obvious.  See, as follows:

During his deposition, Lewis said several times that the hole was large and not obstructed. On page 42 of his deposition the following exchange is found:
Q. How big was the hole? A. A little bigger than a laptop. Q. When you went back to look for it, did you have any
problems finding it? A. No.
Q. Was it a big enough hole that if you’d been looking for it you could have seen it?
A. Oh yeah, if you were looking. Q. Had the grass grown up around it in a way that – A. It was well-manicured.
So that, Lewis admits that, if he had been watching where he was going, he would have seen the hole. Furthermore, he noted that the area was well manicured and the hole was larger than the size of the laptop. Bolstering these statements is Lewis’s statement that no reason (another person or obstruction) existed for him to veer off the sidewalk.

Now, class let's get back to basics.

First, what is open and what is obvious?  Open is defined in the Merriam Webster on-line dictionary as "completely free from concealment"  and obvious is " easily discovered, seen, or understood".   Thus, the vantage point or the angle of the view is critical to how completely free a hole is from concealment and how easily it is discovered.  Thus, the height of the person, the angle of the view, the nearness to the sidewalk, the depth of the hole and the height of the grass relative to the size and depth of the hole are all factors, and relying on a picture looking directly into the putative abyss is misleading, inaccurate, and tells the wrong story.

Second, what about Archimedes and his statement on leverage (or in this case vantage point)?  This Greek philosopher said once "Give me the place to stand, and I shall move the earth."  Or another way, stick it in front of my face and I will see it when I open my eyes. But if the place it too far away or on the floor, then I might easily miss that which you might think is in plain sight!

Third, what about "Sorites paradox" a/k/a the paradox of the heap?  If  you have a heap of sand and remove a single grain, is it still a heap?  If you remove another, then so on and so on, when does it no longer constitute a heap?  Or the way I like it said once, is if pull a single hair from your head and continue to do so, at what point are you considered bald?  So, goes the hole in the ground.  A hole the size of a quarry in the middle of your path is probably open and obvious, but if you fill it up there comes a point when it is not.  Which leads us to the next question.

Fourth, what is a tipping point? Gladwell in his book posits "that tipping points are "the levels at which the momentum for change becomes unstoppable."[1] Gladwell defines a tipping point as a sociological term: "the moment of critical mass, the threshold, the boiling point.""  S ee, Wikipedia.  I submit that within the context of Sorites paradox there is a point in which the heap is no longer a heap and a head full of hair becomes bald.  But, is that point a decision for the judge or a jury to make.  Is one person's concept of the law of the few enough to deprive a one of their constitutional right to a jury trial and a decision by their peers?  I submit no way, especially when by the very essence of the paradox there is no genuine issue of material fact at points on both sides of that tipping point from a hidden hole to one that is open and obvious.

Now, I hope you enjoyed this little trip down the road of philosophy, science, and contemporary literature which supports my view that a hole is open and obvious only in the eyes of the beholder (or should I say "behole"der?).

Hopefully, this case will go up on discretionary review and our Supreme Court will attempt to fill this hole in the law once and for all as it relates to summary judgment, comparative negligence, material issues of genuine fact, and the right to a jury trial.

Have a great day.

Kentucky Court Report of Published Decisions Posted from COA 2010 Minutes for August 13, 2010 (Nos. 765-785)

COA 2010 Minutes for August 13, 2010 (Nos. 765-785)