Aug. 3, 2012 COA Minutes — Nos. 655-691 (37 decisions; 4 Published)

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PUBLISHED DECISIONS OF COA:

656. REVENUE AND TAXATION.  CAPITAL GAINS AND OCCUPATIONAL LICENSE FEE.
MEADOW HEALTH SYSTEM SOUTH, INC., ET AL.
VS.
THE LOUISVILLE/JEFFERSON COUNTY METRO REVENUE COMMISSION
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
ACREE (CONCURS) AND STUMBO (CONCURS)
2009-CA-001839-MR
TO BE PUBLISHED
JEFFERSON

LAMBERT, SENIOR JUDGE: Appellants, Meadows Health Systems East, Inc. (“Meadows East”) and Meadows Health Systems South, Inc. (“Meadows South”) (sometimes collectively referred to as “Appellants”), appeal from an order of the Jefferson Circuit Court denying their motion for summary judgment and rejecting their claims against the Louisville/Jefferson County Metro Revenue Commission. Appellants contend that Appellee violated Kentucky constitutional and statutory law by imposing an occupational license fee on capital gains from the sale of Appellants’ business assets. After careful consideration, we conclude that the circuit court correctly denied Appellants’ motion. Therefore, we affirm.

657.  ZONING. VARIANCE.
BALL (COURTNEY)
VS.
OLDHAM COUNTY PLANNING AND ZONING COMMISSION, ET AL.
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
ACREE (CONCURS) AND STUMBO (CONCURS)
2010-CA-000284-MR
TO BE PUBLISHED
OLDHAM

LAMBERT, SENIOR JUDGE: This is an appeal from an order of the Oldham Circuit Court affirming the decision of the Oldham County Board of Adjustments and Appeals (“the Board”) to grant a road frontage variance with respect to certain property owned by the Sharon D. Larimore Trust (“the Trust”), the predecessor-in- interest to Appellee Vicki B. Watts. Appellant Courtney Ball – a neighboring property owner who objected to the variance application – argues that the Board’s decision was arbitrary and capricious and that the Board failed to make adequate findings in support of that decision. After our review, we affirm.

662.  CIVIL PROCEDURE.  VACATING ORDER (SJ) PER CR 60.02(f) and CR 60.03
YOUNG (JULIANNE MAY)
VS.
RICHARDSON (LOU MAY), ET AL.
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
ACREE (CONCURS) AND MOORE (CONCURS)
2010-CA-002209-MR
TO BE PUBLISHED
MARION

VANMETER, JUDGE: Appellant1 appeals pro se from the Marion Circuit Court order entered on February 23, 2010, which vacated a partial summary judgment order entered on April 11, 2003. For the following reasons, we affirm.

The trial court found it probable that when the parties filed competing motions for summary judgment in 2002, they had possession of the documents which purportedly established Sam May’s legal authority to transfer the trust assets at issue. The court further found it extraordinarily unusual that none of the parties or their attorneys produced these documents for the court’s consideration at that time. The court noted its jurisdiction and duty to enforce trusts and its authority to review the intent of the settlor by his official acts as such, and that this duty is thwarted if evidence of the settlor’s acts is withheld by inexcusable neglect, misrepresentation to the court, deception, obstruction or intentional failure to disclose a material fact. The court held that the partial summary judgment entered April 11, 2003, did not result in a just outcome and that the court’s decision to vacate that judgment did not prejudice either party. Based on our extensive review of the record, we conclude that the trial court did not abuse its discretion by vacating its April 11, 2003, judgment pursuant to CR 60.02(f) and CR 60.03.

677.  CRIMINAL PROCEDURE.
COMMONWEALTH OF KENTUCKY
VS.
TERRELL (SAMUEL)
OPINION AFFIRMING
COMBS (PRESIDING JUDGE)
THOMPSON (CONCURS) AND LAMBERT(CONCURS)
2011-CA-000890-MR
TO BE PUBLISHED
NICHOLAS

COMBS, JUDGE: The Nicholas Circuit Court entered an order halting police questioning of the appellee, Samuel Terrell, until he could consult with counsel. The Commonwealth has appealed the order. After our review, we affirm.

We cannot agree that this distinction is relevant. In its opinion, the Supreme Court pointed out that RCr 2.14 pertains to any lawyer. West v. Commonwealth, 887 S.W.2d at 341. It further elaborated that if a public defender were erroneously provided for a defendant who was not indigent, there is a statutory mechanism for the state agency to recoup funds that were spent. Id. (citing Kentucky Revised Statute[s] (KRS) 31.150). We also note that while Terrell was represented by private counsel at his arraignment, he is currently being represented by the Department of Public Advocacy. The record does not reflect whether his private representation continued at the trial level. However, we believe that it is immaterial whether private counsel or a public defender is involved.

Therefore, in light of precedent set by our Supreme Court, we affirm the order of the Nicholas Circuit Court.

TORT REPORT  FOR PUBLISHED/NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

IF YOU WANT

PUBLISHED: 

See, Young v. Richardson, COA, Pub., 8/3/2012  (the trial court did not abuse its discretion by vacating its April 11, 2003, judgment pursuant to CR 60.02(f) and CR 60.03).

NOT PUBLISHED:

670.  LEGAL MALPRACTICE.
BRIDGES (BOBBIE J.), ET AL.
VS.
EARHART (JAMES A.)
OPINION AFFIRMING
CAPERTON (PRESIDING JUDGE)
LAMBERT (CONCURS) AND MOORE (CONCURS)
2011-CA-000438-MR
NOT TO BE PUBLISHED
JEFFERSON

CAPERTON, JUDGE: Appellants, Bobbie J. Bridges and Donald M. Heavrin, appeal from the Jefferson Circuit Court’s grant of summary judgment to James A. Earhart in two legal malpractice cases. After a thorough review of the parties’ arguments, the record, and the applicable law, we find no error, and accordingly, affirm.

The underlying facts of this appeal involve the complex federal bankruptcy litigation as set forth In re Triple S Restaurants, Inc., 422 F.3d 405, 407 (6th Cir. 2005), and In re Triple S Restaurants, Inc., 130 F. App’x 766, 768 (6th Cir. 2005). 1 Earhart represented Bridges and Heavrin in this litigation in two cases, known as the “trust case” and the “fee case.” In the trust case, Bridges and Heavrin alleged that Earhart failed to call two witnesses to testify before the United States Bankruptcy Court and that Earhart committed appellate malpractice.
Earhart moved for summary judgment on the basis of causation, specifically, that Bridges and Heavrin could not establish sufficient causation to prove that, but for Earhart’s alleged failure to call two witnesses, they would have prevailed before the bankruptcy court.

After reviewing the record, including the affidavits of retired Judge Thomas D. Lambros, attorneys Edward H. Stopher and Heavrin, the trial court determined that Earhart was not counsel of record at the time the court imposed deadlines for the naming of witnesses and taking of depositions;2 that Heavrin was at all times a co-counsel of record; and that Heavrin offered no evidence beyond his opinion that the testimony of the two witnesses would have altered the outcome of the bankruptcy. Thus, the court concluded that Bridges and Heavrin were unable to establish by a reasonable degree of probability that the bankruptcy proceedings would have reached a different outcome or that the outcome of the case would have been more favorable to them but for the negligence of Earhart. Accordingly, the trial court granted summary judgment in favor of Earhart in the trust case. We now consider the fee case.

While the trial court was faced with multiple arguments concerning the witnesses, Bridges and Heavrin were unable to establish by a reasonable degree of probability that the bankruptcy proceedings would have reached a different outcome or that the outcome of the case would have been more favorable to them but for the negligence of Earhart. Additionally, Bridges and Heavrin did not offer the trial court any evidence regarding the alleged appellate malpractice and how, but for the negligence of Earhart, Bridges and Heavrin would have fared better on appeal, that is, but for the attorney’s negligence, they would have been more likely successful. See Marrs at 860. Thus, the trial court did not commit error in granting summary judgment.

684.  SETTLEMENT AND RELEASE.
CSX TRANSPORTATION, INC.
VS.
HAMILTON (JAMES S.)
OPINION AFFIRMING
MAZE (PRESIDING JUDGE)
CLAYTON (CONCURS) AND TAYLOR (CONCURS)
2011-CA-001401-MR
2011-CA-001422-MR
NOT TO BE PUBLISHED
PIKE

MAZE, JUDGE: CSX Transportation, Inc. (CSX) appeals from a postjudgment order of the Pike Circuit Court ordering distribution of settlement proceeds to James Hamilton. Hamilton separately appeals from that order. CSX argues that Hamilton was not entitled to the proceeds until he executed a release of all claims arising out of this litigation. Although we agree with CSX that it was entitled to an executed release from Hamilton, we conclude that the prior appeals of this action preclude a release of claims for potential future injuries arising out of the injuries asserted by Hamilton in this litigation. Since Hamilton has already executed a release of those claims, we affirm the trial court on the direct appeal. In his associated appeal, Hamilton argues that he was entitled to an award of pre- judgment interest and attorney fees due to CSX’s delay in allowing release of the settlement proceeds. Finding no abuse of discretion in the trial court’s denial of interest or attorney fees, we also affirm on Hamilton’s appeal.

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