COA: September 11, 2015 Court of Appeals Decisions (Minutes) (763-778) 16 decisions; 4 published)

Appeal of order denying motion to set aside did not meet exception for interlocutory orders; child custody termination hearing requires evidence, parties in attendance, and finding complying with KTS 403.270(2); plaintiff offered evidence of probable asbestos exposure was sufficient showing of causation to reverse summary judgement dismissing claim; Medical malpractice claim addressing informed consent, MRSA infection, and continuing treatment and discovery for statute of limitations addressed within context of harm vs. injury - summary judgment in favor of doctor reversed in part.

Published Court of Appeals appellate cases for  this week –
September11, 2015:  
 Links are to full text of PDF decision with AOC.

769.  Revenue and taxation.  Ad valorem taxation applies with planning commission not yet dissolved by statute.
Garth Kuhnhein vs. Northern Kentucky Area Planning Commission
COA Published (PUB) Opinion.  Affirming.  Kenton County.

THOMPSON, JUDGE: Garth Kuhnhein, a resident of Kenton County, filed a class action complaint for a declaratory judgment declaring the assessment and collection of ad valorem taxes by the Northern Kentucky Area Planning Commission and the Northern Kentucky Area Planning Council (collectively NKAPC) is invalid because it no longer meets the requirements of an area planning commission as defined in Kentucky Revised Statutes (KRS) 147.610 and alleging the conversion of funds collected by the NKAPC. The Kenton Circuit Court granted summary judgment to the NKAPC ruling that the NKAPC is a viable legal political subdivision. After considering the parties’ arguments and the applicable law, we affirm because the NKAPC has not been dissolved pursuant to statute.

771.  Appeal.  COA dismissed appeal as motion denying order to set aside judgment was not final and appealable (interlocutory).  Exception not apply.
Black Forest Coal, LLC vs. GRC Development LLC
COA PUB Opinion. Affirming. Pike County.

TAYLOR, JUDGE: Black Forest Coal, LLC (Black Forest) brings this appeal from a March 13, 2014, judgment of the Pike Circuit Court granting Mountain Processing, Inc. (Mountain Processing) and GRC Development, LLC’s (GRC) Kentucky Rules of Civil Procedure (CR) 60.02 motion to vacate an order dismissing the action. We dismiss as this appeal is taken from an interlocutory order.

Black Forest acknowledges the general rule that an order granting a CR 60.02 motion to set aside a judgment is nonappealable but argues that an exception announced in Asset Acceptance, LLC v. Moberly, 241 S.W.3d 329 (Ky. 2007) is applicable herein. We disagree.

In this Commonwealth, the general rule is “that an order setting aside a judgment and reopening the case for trial is not final or appealable.” Asset Acceptance, 241 S.W.3d at 332. The only exception to this general rule was set forth in Asset Acceptance and is applicable where: (1) the “disrupted” judgment is more than one year old, and (2) the reason offered by the circuit court is an “extraordinary circumstance” under CR 60.02(f). Asset Acceptance, 241 S.W.3d at 334.

773.  Family Law.  Affirmed termination of parental rights.
Commonwealth of Kentucky vs. Mark A. Alberhasky
COA PUB Opinion.  Reversing and remanding.  Jefferson County.

TAYLOR, JUDGE: E.C. brings this appeal from an August 1, 2014, order and judgment of the Anderson Circuit Court, Family Court Division, (family court) terminating his parental rights as to C.E.-L.N. (hereinafter referred to as “C.N.”) We affirm.

We have thoroughly reviewed the record and conclude that sufficient evidence supports the family court’s decision to involuntarily terminate E.C.’s parental rights. The family court rendered detailed findings of fact which we incorporate herein by reference and the court otherwise complied with the relevant statutory mandates for involuntarily terminating E.C.’s parental rights. From the record before this Court, we can find no legal ground or reason to set aside the family court’s judgment. In short, we agree with counsel that no valid basis exists to warrant relief from this Court. See A.C., 362 S.W.3d 361. Accordingly, we conclude that the family court did not commit reversible error in the involuntary termination of E.C.’s parental rights.

775.  Child Custody Hearing.  Full evidentiary hearing with both sides in attendance, and findings entered per KRS 403.270(2) required.
A.(S.E.)  vs. G.(R.J.)
COA PUB Opinion.  Vacating and Remanding.  Fayette County.

JONES, JUDGE: This is a child custody action arising out Fayette Family Court. The family court awarded permanent sole custody to the Appellee, R.J.G. (“Father”). The Appellant, S.E.A. (“Mother”), argues that the trial court erred because it did not conduct an evidentiary hearing and based its factual findings almost exclusively on a written report filed by the guardian ad litem (“GAL”) whom Mother was never allowed to question.

Upon review, we conclude that the trial court should have conducted an evidentiary hearing at which both parties were provided an opportunity to present testimony. Moreover, the trial court’s reliance on the GAL’s report was improper as explained by our Supreme Court in Morgan v. Getter, 441 S.W.3d 94 (Ky. 2014). Accordingly, we VACATE the trial court’s orders and REMAND with instructions to conduct a full evidentiary hearing and make findings pursuant to KRS1 403.270(2) based on the evidence presented.

Selected Court of Appeal’s “not to be published” decisions on Trials, torts, insurance and civil procedure from September 11, 2015.  Links are to full text of decision in PDF at AOC.

765.  Summary Judgment.  Dispute existed of genuine issues of material fact on causation of injuries.  Plaintiff presented lay and expert evidence of probable and not just possible asbestos exposure.
Thelma Anderson (Adm’x of Est. of Kenneth Anderson) vs. Motorola Solutions, Inc.
COA NonPublished Opinion (NPO).  Reversing and remanding.  Campbell County

JONES, JUDGE: This appeal arises out of the Campbell Circuit Court’s orders granting summary judgment in favor of Motorola Solutions, Inc. (“Motorola”) and Zenith Electronics, LLC (“Zenith”). Appellant, Thelma B. Anderson, as administratrix of the estate of Kenneth Anderson, asserts that neither Motorola nor Zenith was entitled to judgment as a matter of law. Zenith and Motorola argue otherwise. Specifically, the Appellees maintain that summary judgment was proper because Appellant failed to prove that Kenneth was exposed to asbestos from any of their products during his career as a radio repairman, or, that if such exposure occurred, it was a substantial factor in his death from mesothelioma.

COA concluded that the circuit court erred in granting summary judgment to Zenith and Motorola. We believe that Appellant produced enough evidence in the form of lay and expert testimony to make it probable, as opposed to merely possible, that Kenneth was exposed to asbestos from radios manufactured by Zenith and Motorola and that such exposure was a substantial factor in his death. Therefore, we believe that in this case, the issue of causation is one that should be made by a jury instead of a judge on summary judgment. Accordingly, we REVERSE and REMAND.

766.  Statute of limitations.  Medical negligence and informed consent.  Continuing treatment and tolling and discovery plus “harm” vs. “injury” addressed.
Dennis Stallins vs Carl Hinton
COA NPO.  Affirming in part, reversing in part, and remanding.  Caldwell County

JONES, JUDGE: This appeal requires us to consider whether the Caldwell Circuit Court properly dismissed Dennis Stallins’s medical malpractice claims against Dr. Carl Hinton as time-barred. Having reviewed the record, we conclude that the circuit court erred when it determined that Stallins’s entire complaint was time- barred. While we agree with the circuit court that the portion of Stallins’s complaint alleging that Dr. Hinton breached the standard of care by exceeding the scope of Stallins’s consent was time-barred, we do not agree that the remainder of Stallins’s complaint was also time-barred. Accordingly, for the reasons more fully explained below, we affirm in part, reverse in part, and remand.

An action for medical malpractice must be commenced within one year after the cause of action accrued. KRS3 413.140(1)(e). The same statute further provides a negligence or malpractice action against a physician “shall be deemed to accrue at the time the injury is first discovered or in the exercise of reasonable care should have been discovered; provided that such action shall be commenced within five (5) years from the date on which the alleged negligent act or omission is said to have occurred.” KRS 413.140(2).

KRS 413.140(2) is clear that it is the plaintiff’s actual or constructive discovery of his injury that starts the running of the one-year limitations period for medical malpractice and negligence actions. Our Supreme Court has explained  that under the discovery rule, the statute of limitations will not commence to run until the plaintiff knows there is a “basis for a claim.” Wiseman v. Alliant Hospitals, Inc., 37 S.W.3d 709, 712 (Ky. 2000). The “knowledge necessary to trigger the statute is two-pronged; one must know: (1) he has been wronged; and, (2) by whom the wrong has been committed.” Id. When both knowledge requirements are satisfied, the plaintiff has been injured and the statute begins to run.

The Wiseman Court emphasized that the distinction between “harm” and “injury” is crucial to this analysis.   While an unskilled layperson may be able to appreciate harm, recognizing a legally cognizable injury is a far more complicated matter. “A mere suspicion of injury due to medically unexplainable pain following an invasive surgery does not equate to discovery of medical negligence.” Id. at 713. The statute of limitations begins to run only when the plaintiff possesses knowledge of both the “resulting harm and the cause of that harm.” Vannoy v. Milum, 171 S.W.3d 745, 750 (Ky. App. 2005).

Additionally, our Supreme Court has created an exception under which the statute remains tolled, so long as the patient is under the continuing care of the physician for the injury caused by the negligent act or omission and continues to treat with the physician in good faith for the purpose of improving the initial results or mitigating the damages caused by the poor treatment. Harrison v. Valentini, 184 S.W.3d 521, 524 (Ky. 2005). It is critically important to realize, however, that Harrison did not abrogate the discovery requirements previously set forth by the Wiseman court. Harrison does not stand for the proposition that the last date of treatment triggers the statute. Knowledge of both the harm and the injury is still required before the statute begins running. Harrison merely tolls a statute that already accrued until such time as the patient stops treating with the doctor at issue. Harrison is inapposite if the patient does not have the requisite knowledge on the last day of treatment. If the patient lacks the requisite knowledge on the last day of treatment with the physician, the clock remains at zero.

With these standards in mind, we turn to Stallins’s complaint. The circuit court appears to have considered Stallins’s complaint as alleging a single injury of which Stallins should have been aware “when he awoke from surgery.” While Stallins did allege that Dr. Hinton exceeded the scope of Stallins’s consent, a fact that would have been known to Stallins when he awoke from surgery or shortly thereafter, he also alleged that Dr. Hinton failed to appropriately dress his wounds and provide him with reasonable aftercare, causing him to develop a MRSA infection. It is this second alleged injury that we do not believe the trial court should have dismissed on summary judgment, at least without providing Stallins additional time to conduct discovery.

We believe it is unclear from the record when Stallins was made aware of his MRSA diagnosis and whether he was informed at some point that better management of the infection could have prevented him from losing his leg.

While Stallins may have been fully aware in December 2011 of the open wounds on his body, we cannot hold him to have known that the open wounds and pain were indicative of negligence on Dr. Hinton’s part, especially when the treatment notes indicate that Dr. Hinton told Stallins on this last visit that his wounds were “granulating nicely.”

“[T]he patient cannot know whether the undesirable outcome is simply an unfortunate result of proficient medical care or whether it is the consequence of substandard treatment.” Harrison, 184 S.W.3d at 524. A mere suspicion of injury due to medically unexplainable pain following an invasive surgery does not equate to discovery of medical negligence. Wiseman, 37 S.W.3d at 713. While Stallins may have suspected that something was wrong after surgery, that in and of itself was insufficient to accrue a cause of action. One who possesses no medical knowledge should not be held responsible for discovering an injury based on the wrongful act of a physician, especially where the physician tells the patient on the last day of treatment that he appears to be healing nicely. Thus, while Stallins no doubt knew he was in pain as of this last visit, there is nothing in the record to suggest that Stallins had reason to suspect that this pain was out of the ordinary or the result of a deviation in the standard of care by Dr. Hinton.

The trial court erroneously equated “harm” with “injury.”

Click here for links to all the archived AOC Court of Appeals minutes at the web site for the Administrative Office of the Courts.

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AOC version of this week’s decisions can be accessed by clicking here.

The complete set of this week’s minutes listing all decisions (published and not to be published) with links to the full text of each at the AOC,  are below following short summaries of this week’s published cases and extracts of tort, insurance and procedure cases.

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Std. of Review: Administrative Decisions, Statutory Interpretation

Ford Contracting, Inc. v. Kentucky Transportation Cabinet
COA PUB 2/7/2014

ACREE, CHIEF JUDGE: Ford Contracting, Inc. appeals the February 21, 2012 order of the Franklin Circuit Court reversing in part and affirming in part the 2010 Final Order of the Kentucky Transportation Cabinet. Having carefully reviewed the record and the arguments of the parties, we affirm in part, reverse in part, and remand for additional proceedings.

* * *

Ford is correct that judicial review of an administrative decision focuses on arbitrariness. Kaelin v. City of Louisville, 643 S.W.2d 590, 591 (Ky. 1982). One component of arbitrariness review is “whether determinations are supported by substantial evidentiary support.”10 Hilltop Basic Resources, Inc. v. County of Boone, 180 S.W.3d 464, 467 (Ky. 2005). Thus, this Court generally confines its review to: (1) whether the findings of fact are supported by substantial evidence of probative value; and (2) whether the administrative agency applied the correct rule of law to the facts. Board of Com’rs of City of Danville v. Davis, 238 S.W.3d 132, 135 (Ky. App. 2007). While we are bound by the subordinate facts found by the hearing officer, we are not bound by the hearing officer’s legal conclusions. See id.

The other two considerations are: “(1) whether an action was taken in excess of granted powers[; and] (2) whether affected parties were afforded procedural due process[.]” Hilltop, 180 S.W.3d at 467. Neither of these is at issue in this case.

Our review, however, is altered when the agency denies relief to the party saddled with the burden of proof. Bourbon County Bd. of Adjustment v. Currans, 873 S.W.2d 836, 838 (Ky. App. 1994). In such a case, “the failure to grant administrative relief to one carrying the burden is arbitrary [only] if the record compels a contrary decision in light of substantial evidence therein.” Id.

Not infrequently, contestants appear at the judicial level arguing that the administrative decision is not supported by substantial evidence when the board has offered no relief in the first instance. In other words, the board has ruled that the one having the burden of proof— usually the applicant—has failed. In such cases, attention should be directed to the administrative record in search of compelling evidence demonstrating that the denial of the relief sought was arbitrary. The argument should be that the record compels relief. The argument that there is no substantial evidence to support nonrelief is an anomaly.

Id. Evidence is compelling if it is so overwhelming that no reasonable person could fail to reach the same conclusion. Greene v. Paschall Truck Lines, 239 S.W.3d 94, 108 (Ky. App. 2007) (citation omitted).

Furthermore, it is basic hornbook law that the “trier of facts is afforded great latitude in its evaluation of the evidence heard and the credibility of witnesses appearing before it.” Bowling v. Natural Resources and Environmental Protection Cabinet, 891 S.W.2d 406, 409-10 (Ky. App. 1994). “To put it simply, ‘the trier of facts in an administrative agency may consider all of the evidence and choose the evidence that he believes.’” Id. (citation omitted). This Court may not reconsider or “pass upon the credibility of witnesses, and the weight of the evidence” for these functions rest within the “exclusive province of the administrative trier of fact.” Id.

Finally, statutory interpretation is an issue of law and, accordingly, we review the circuit court’s statutory construction de novo. See Cumberland Valley Contractors, Inc. v. Bell County Coal Corp., 238 S.W.3d 644, 647 (Ky. 2007).

Appeals: Failure to include language in order for appeal re finality results in dismissal. Ohio Cas. Ins. Co. v. City of Providence, COA, NPO 11/16/2012

Ohio Cas. Ins. Co. v. City of Providence, COA, NPO 11/16/2012

As a general matter, “this court is required to raise a jurisdictional issue on its own motion if the underlying order lacks finality.” Tax Ease Lien Investments 1, LLC v. Brown, 340 S.W.3d 99, 101 (Ky. App. 2011) (citing Huff v. Wood–Mosaic Corp., 454 S.W.2d 705, 706 (Ky.1970)). With that said, the circuit court had the authority to bifurcate Providence’s action against OCC into two separate claims (i.e., one claim for the interpretation of the contract and its
coverage provisions, another for an assessment of damages pursuant to the contract). The circuit court also had the authority to render its decision regarding coverage immediately appealable while reserving the separate issue of damages for a later date—provided that it did so by following the requirements of Kentucky Civil Rule (CR) 54.02. See Preferred Risk Mut. Ins. Co. v. Kentucky Farm Bureau Mut. Ins. Co., 872 S.W.2d 469, 470 (Ky. 1994).

However, CR 54.02 required the circuit court’s order to recite not only that it was final, but that there was “no just reason for delay.” Watson v. Best Financial Services, Inc., 245 S.W.3d 722 (Ky. 2008). “Absent those certifications,
the rule is not invoked.” Spencer v. Estate of Spencer, 313 S.W.3d 534, 540 (Ky. 2010). Here, the circuit court’s order simply recites that it is “a final and appealable order,” but omits that there was “no just reason for delay”; its
subsequent order overruling OCC’s CR 52.02 motion for additional findings did not cure this omission; and, as a consequence, the circuit court’s order, which is the
subject of this appeal, is merely interlocutory and unripe for review. Watson, 245  S.W.3d 722.

The hard fact is that it was appellant Ohio Casualty’s responsibility to ensure that the circuit court’s judgment was in the proper form to invoke CR 54.02.  Spencer, 313 S.W.3d at 540. Having failed to do so, Ohio Casualty has left this Court with no option other than to DISMISS its appeal.

Stds of Review – Appeals: Raising issues first time on appeal (Grant v. Warren County, COA, NPO, 8/10/2012)

This nonpublished decisions addresses failure to preserve error and raise it on appeal for the first time:

Grant v. Warren County, COA, NPO, 8/10/2012

As a general rule, a party is not permitted to raise an issue for the first time on appeal. “The Court of Appeals is one of review and is not to be approached as a second opportunity to be heard as a trial court. An issue not timely raised before the circuit court cannot be considered as a new argument before this Court.” Lawrence v. Risen, 598 S.W.2d 474, 476 (Ky. App. 1980). However, there are circumstances where unpreserved issues may be raised, such as in situations addressing subject-matter jurisdiction. See Hisle v. Lexington– Fayette Urban County Gov’t, 258 S.W.3d 422, 430–31 (Ky. App. 2008) (because subject-matter jurisdiction concerns the nature and origin of a court’s power to act, it may not be waived and may be raised at any time in the proceeding). While Kentucky has not directly addressed this point, it has been stated in the federal context that sovereign immunity is a type of subject-matter jurisdiction. F.D.I.C. v. Meyer, 510 U.S. 471, 476, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). Nevertheless, because of the circumstances by which Appellant’s claim against the County was dismissed, we decline to review the matter herein and believe it is best remanded to the lower court for proper consideration of the merits of the County’s motion to dismiss.

Standards of Review: Of trial court’s denial of summary judgment re appealability of denial vs. granting vs. governmental immunity

The following decision summarizes the law regarding appeal of summary judgment ruling.

Although not an issue presented, we clarify a procedural point. A denial of summary judgment is generally interlocutory and not appealable. However, a denial of summary judgment that constitutes adjudication on the merits or based purely on a matter of law is reviewable on appeal. Ford Motor Credit Co. v. Hall, 879 S.W.2d 487, 489 (Ky.App. 1994). The questions presented in this case are purely questions of law and, therefore, the denial of summary judgment is properly before this Court.2

See Breathitt County Bd. of Educ. v. Prater, 292 S.W.3d 883 (Ky. 2009), holding that a denial of summary judgment on the basis of governmental immunity is immediately appealable. Although that case involved governmental immunity, its reasoning is equally applicable to this case involving qualified official immunity.


Feb. 24, 2012 COA Minutes — Nos. 195-225 (31 decisions; 6 published)

Feb. 24, 2012 COA Minutes —                Nos. 195-225 (31 decisions; 6 published)

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NICKELL, JUDGE: Nancy A. Frost and Glen F. Frost appeal from a Boone Circuit Court order dismissing Nancy’s action for damages and Glen’s action for loss of consortium in this personal injury case stemming from an automobile accident. At issue is whether the “discovery rule” tolls the limitations period for bringing a tort action under Kentucky’s Motor Vehicle Reparations Act (“MVRA”), KRS 304.39-230. We hold that it does not, and, therefore, we affirm.

In this case, the trial court ruled as a matter of law that under KRS 304.39-230(1), a party suffering a loss has two years from the date thereof or two years from the last BRB payment to bring suit. It concluded this action was barred because the Frosts were aware of Dickerson’s identity, and received the last BRB payment on November 13, 2007, yet failed to file suit until December 30, 2009. The court further held that the discovery rule had “not been applied to motor vehicle accident cases to extend the statute of limitations on the allegation that the extent of the injury and the causal connection of some of the injury were unknown.” Finally, the court held that Glen’s action for loss of consortium was barred because it was not covered by the MVRA, and was not brought within the one-year limitations period of KRS 413.140(a), which governs personal injuries.

The Frosts argue that the discovery rule should be applied to toll the

running of the limitations period since Nancy did not know until she received the letter from Dr. Pagani on September 16, 2009, that her severe symptoms were attributable to the accident. “Under the ‘discovery rule,’ a cause of action will not accrue until the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, not only that he has been injured but also that his injury may have been caused by the defendant’s conduct.” Wilson v. Paine, 288 S.W.3d 284, 286-87 (Ky. 2009) (citing Hazel v. General Motors Corp., 863 F.Supp. 435, 438 (W.D.Ky. 1994). The Frosts urge the Court to apply the distinction made in Wiseman v. Alliant Hosps., Inc., 37 S.W.3d 709 (Ky. 2000), a medical negligence case, between harm, defined as “the existence of loss or detriment in fact of any kind to a person resulting from any cause[,]” and injury, defined as “the invasion of any legally protected interest of another.” Wiseman at 712. The Frosts contend that although Nancy was aware that she had been harmed, she was not aware that she had been injured in the legal sense until she received medical confirmation of the causal link between the accident and her medical condition via the September 16, 2009, letter from Dr. Pagani.

The Frosts concede that the discovery rule has never been applied to a personal injury action under the MVRA, but argue that such an extension would be in keeping with the trend of opinions from the Supreme Court of Kentucky, which have extended the rule to medical malpractice cases, Tomlinson v. Siehl, 459 S.W.2d 166 (Ky. 1970); injury from latent disease caused by exposure to asbestos, Louisville Trust Co. v. Johns-Manville Products Corp., 580 S.W.2d 497 (Ky. 1979); and legal malpractice cases, Conway v. Huff, 644 S.W.2d 333 (Ky. 1982). They further argue that extending the rule in this case would be equitable and would serve the MVRA’s purpose of reducing litigation by rewarding those claimants with latent injuries who wait to file suit until they have established a causal connection between an accident and their injuries.

Although the Frosts’ arguments are compelling, we decline to extend the discovery rule to tort actions under the MVRA because we have no statutory authority to do so. The statute of limitations set forth in KRS 304.39-230(6) makes no provision for the application of the discovery rule, unlike section (1), which expressly states that an action for reparation benefits “may be commenced not later than two (2) years after the injured person suffers the loss and either knows, or in the exercise of reasonable diligence should know, that the loss was caused by the accident[.]” Had the legislature intended the discovery rule to apply in the tort context, it could have included similar language in section (6).

Moreover, we are bound to follow the precedent established by our Supreme Court. As this Court noted in refusing to extend the discovery rule in the case of a student sexually assaulted by a church employee, “[t]he courts in this Commonwealth have been reluctant to extend the discovery rule and have applied it narrowly . . . . To extend that rule to cover the facts of this case would be beyond that allowed by Kentucky courts to this date.” Roman Catholic Diocese of Covington v. Secter, 966 S.W.2d 286, 289 (Ky. App. 1998). As this Court further observed in the same opinion, “we will follow established precedent and not make new policy.” Id. at 289 (citing Louisville Trust Co., at 499 (“The Court of Appeals had no alternative but to decide the case as it did.”)).

As to Glen’s loss of consortium claim, it is also time-barred under the one-year limitations period of KRS 413.140(a) because it would have accrued simultaneously with Nancy’s claim. See Tomlinson, 459 S.W.2d at 168.

For the foregoing reasons, we affirm the trial court’s order dismissing the Frosts’ complaint and granting summary judgment to Dickerson.



THOMPSON, JUDGE: Commonwealth Bank & Trust Company, Administrator With The Will Annexed of the Estate of William F. Steineker and the Steineker estate beneficiaries, C. Authur Steineker, Helen Jean Steineker, Alfred William Steineker, III, and Catherine Anita Wimbish (collectively referred to as Commonwealth), appeal a Jefferson Circuit Court order declaring that Margaret W. Young, William Welch, and Candace Welch (the children), did not violate a no-contest clause of a trust document executed by their mother, Virginia C. Steineker. The issues are: (1) whether the order is final and appealable; (2) whether Commonwealth has standing; and (3) whether the children violated the trust document’s no-contest clause and, therefore, forfeited their beneficial interest in the trusts. Because multiple parties are involved, it is helpful to establish their respective positions.


LAMBERT, JUDGE: After entering a conditional guilty plea, George Phillips appeals from the Barren Circuit Court’s denial of his motion to dismiss the charges pending against him for failure to comply with sex offender registration and persistent felony offender in the first degree. After careful review, we affirm the trial court’s order denying Phillips’ motion to dismiss the charges and vacate the trial court’s imposition of court costs and a fine.

C. (A.)

ACREE, JUDGE: This is an appeal from the Kenton Family Court’s January 11, 2011 order terminating the parental rights of appellant, A.C., with regard to her minor son, M.W.C. In the course of our review, we are called upon to determine whether it is proper to extend the briefing procedures of Anders v. State of California, 386 U.S. 738, 87 S.Ct.1396, 18 L.Ed.2d 493 (1967), to appeals from orders terminating parental rights and, if so, whether the appeal before us is, in fact, wholly frivolous. We answer both questions affirmatively and affirm the family court’s judgment.

P. (J.)
B. (S. B.), ET AL.

COMBS, JUDGE: J.P. appeals an order of the Pulaski Circuit Court denying his petition to establish paternity, custody, visitation, and child support. After our review, we vacate and remand.

First, J.P. has demonstrated a real and substantial interest in the subject matter. Although S.B.B. characterized their relationship as “casual,” she testified at the hearing that they engaged in sexual intercourse one or two times per week for a number of years, including more than the one year preceding the birth of her child. Furthermore, she admitted that she did not use birth control during her encounters with J.P. Since she was also sexually active with her husband, either man could have fathered her child. J.P. presented other evidence as well, but S.B.B.’s admissions are sufficient to provide a reasonable basis of J.P.’s potential paternity.

S.B.B. seeks to distinguish this case from Bushelman because J.P. has not undergone DNA testing in order to determine paternity. (In Bushelman, the mother had consented to the DNA test.) J.P. has not had the opportunity but did ask the court to grant him that opportunity. In Bushelman, the Supreme Court encouraged the use of DNA testing to establish paternity:

We see no justification for keeping the traditional presumption of paternity locked in the science of centuries past. . . . DNA testing now serves as an appropriate form of evidence, not to avoid the traditional presumption of paternity, but to rebut it.

Id. at 861. DNA testing is clearly appropriate in this case.
Pursuant to the more recent authority set forth in Bushelman, we vacate the

order of the Pulaski Circuit Court and remand for additional proceedings. ALL CONCUR.


THOMPSON, JUDGE: Hardin Memorial Hospital appeals from an opinion and order of the Workers’ Compensation Board affirming the ALJ’s award of permanent total disability benefits to Patricia Hornback and an enhanced benefit.

Pursuant to KRS 342.165(1). Hardin does not contest the award of permanent total disability but argues that the ALJ’s finding that Hornback’s injuries were caused by Hardin’s intentional failure to comply with safety laws was not supported by substantial evidence. After a review of the record, we are compelled to agree and reverse.


CAPERTON, JUDGE: Pamela and Thomas Adams appeal from the denial of their motion for a new trial following a jury verdict which found Randall Miller liable for the motor vehicle accident at issue on November 12, 2007. Said verdict did not award the full amount of damages sought and did not award any damages for pain and suffering. The Adamses argue that the jury verdict is not supported by the evidence, that the jury was erroneously instructed on the doctrine of sudden emergency, and that a juror should have been excused for cause. After a thorough review of the record, the parties’ arguments, and the applicable law, we do not find reversible error and, accordingly, affirm the jury verdict in question.

After hearing the evidence, the jury found Miller at fault and awarded Adams $200.00 (of $220.50) in lost wages; $9,800.00 (of $16,305.60) for past medical expenses; and $0 for pain and suffering. Adams moved the trial court for a new trial under Kentucky Rules of Civil Procedure (CR) 59.01(d). The trial court denied the motion. In so doing, the trial court noted that the jury verdict was supported by the evidence since Adams told the officer at the scene of the accident that she was fine and declined ambulance service. The court noted that at the emergency room, Adams complained of pain in her neck and back and received medication. However, when she visited a family physician after the chiropractor visits, the record does not reflect neck pain but instead numbness and tingling in her arms. The evidence also showed that Adams had been treated for a sciatic nerve issue prior to the accident but had not received treatment for it since 2004.

On appeal, the parties present three arguments which, for the sake of clarity,3 we have concisely recharacterized as three issues, namely: (1) whether the jury’s award of zero dollars for pain and suffering and less than the amount sought at trial for lost wages and past medical expenses requires a new trial; (2) whether the court erred in giving the jury an instruction on the sudden emergency doctrine;

and (3) whether the court erred in not excusing for cause Juror #172. With this in mind we now turn to our applicable jurisprudence.

At the outset we note that our review of a trial court’s ruling on a motion for a new trial under CR 59.01 is limited to whether the denial of the motion was clearly erroneous. Miller v. Swift, 42 S.W.3d 599, 601 (Ky. 2001).

In Miller the Kentucky Supreme Court reiterated that “if the jury's verdict of zero damages for pain and suffering is supported by evidence, the trial court was not clearly erroneous in denying Miller's motion for a new trial.” Id. Moreover, “a CR 59.01 ruling [is described] as ‘a discretionary function assigned to the trial judge who has heard the witnesses firsthand and observed and viewed their demeanor and who has observed the jury throughout the trial.’” Id. quoting Davis v. Graviss, Ky., 672 S.W.2d 928 (1984)(Davis was overruled on other grounds by Sand Hill Energy, Inc. v. Ford Motor Co., Ky., 83 S.W.3d 483, 493–95 (2002). Sand Hill was later vacated by Ford Motor Co. v. Estate of Smith, 538 U.S. 1028, 123 S. Ct. 2072, 155 L. Ed. 2d 1056 (2003)). Accordingly, we now review the issues presented by the parties in light of this standard.

First, we must address whether the jury’s award of zero dollars for pain and suffering and less than the amount sought at trial for lost wages and past medical expenses requires a new trial. As noted in Miller, supra, “Whether the award represents ‘excessive or inadequate damages appearing to have been given under the influence of passion or prejudice or in disregard of the evidence or the instructions of the court,’ CR 59.01(d), is a question dependent on the nature of the underlying evidence.” Id. at 602 (internal citation omitted). Moreover, the fixing and assessment of damages is exclusively a matter for the jury. DeBuyser v. Walden, 255 S.W.2d 616 (Ky. 1953). Determining whether a jury's award of damages meets this standard is a discretionary function assigned to the trial judge, who heard the witnesses firsthand, viewed their demeanor, and observed the jury throughout the trial. Miller at 601.

An award of zero dollars for pain and suffering is not automatically inadequate as a matter of law merely because it was accompanied by awards for medical expenses and lost wages. Miller at 602. Instead, the trial court must assess whether the award was inadequate, which requires evaluation of the evidence submitted at trial. Id. We must also bear in mind that a jury is not required to believe a plaintiff or her doctors. Bledsaw v. Dennis, 197 S.W.3d 115, 118 (Ky. App. 2006).

In the case sub judice, the trial court undertook an assessment of the evidence presented by both parties and concluded that there was countervailing evidence concerning Adams’s pain and whether it was attributable to the car accident given the chiropractic treatments, the timing of her physician visits, her past medical history, and the length of time between physician visits. Thus, the trial court determined that the jury’s verdict of zero dollars for pain and suffering was supported by the evidence. We agree with the trial court that in light of Miller, supra, the jury verdict was supported by the evidence and does not appear to have been rendered under the influence of passion or prejudice or in disregard of the evidence or the instructions of the court. Accordingly, the award of zero dollars was not inadequate and the denial of the motion for a new trial was not clearly erroneous.

Similarly, we agree with the trial court that the jury was not required to award the full amount of damages sought for past medical expenses or lost wages. The jury instructions stated:

If you find for the Plaintiff, what sums of money do you find from the evidence will fairly and reasonably compensate the Plaintiff, Pamela Adams, for such of the following items of damage as she may have sustained as a direct result of the accident?

(c) Necessary and reasonable expenses for hospital and medical services she incurred in the past, not to exceed $16,305.60?
(d) Necessary and reasonable expenses for hospital and medical services she is reasonably certain to incur in the future, not to exceed $50,000?

(e) Loss of wages and income, not to exceed $220.20?
By the terms of the instructions, the jury was to assess the evidence presented and compensate Adams fairly and reasonably, not to exceed the stated full amount of damages sought. As the trial court noted, the jury could have considered the fact that Adams did not see another physician after the week of her accident until seven months later. Thus, the jury could have determined that some of the medical treatment expenses were not related to the accident and correspondingly awarded less than the full amount sought for past medical expenses and zero for future medical expenses. Likewise, the jury could have considered testimony concerning the number of hours worked by Adams and her scheduled time off in awarding her less than the full amount sought for lost wages. Thus, we agree with the trial court that the jury verdict was supported by the evidence and does not appear to have been rendered under the influence of passion or prejudice or in disregard of the evidence or the instructions of the court. Accordingly, the award for less than the full amount of the damages sought was not inadequate and the denial of the motion for a new trial was not clearly erroneous.

We now turn to the second issue presented, namely: whether or not the court erred in giving the jury an instruction on the sudden emergency doctrine.

The sudden emergency doctrine relates only to the question of whether a duty was breached and has no effect on the means by which damages are allocated. Thus, we believe any error to be harmless because the jury found Miller to be liable and it is only the amount of damages with which Adams takes issue. See Henson v. Klein, 319 S.W.3d 413, 422 (Ky. 2010), and City of Louisville v. Maresz, 835 S.W.2d 889, 894 (Ky.App. 1992). Accordingly, the trial court did not err in denying Adams’s motion for a new trial based on this alleged error.

We now address the third and last issue of whether the court erred in not excusing for cause Juror #172. Adams argues that Juror #172 should have been excused for cause since she clearly expressed her opinion and bias about awarding monetary damages for pain and suffering. At the bench conference, Juror #172 indicated that she thought she could be fair and, thus, Adams argues, was unsuccessfully rehabilitated. Adams had to use a peremptory challenge to excuse Juror #172 after the trial court overruled her challenge for cause. Adams argues that there were not enough peremptory challenges to strike all the jurors who had expressed opinions indicating inability to award damages for persons injured, like Adams, in an auto accident; however, Adams does not specify which additional jurors would have been challenged. Adams also argues that Miller used all of his peremptory challenges to remove all prospective jurors who had personal injury claims or upon prospective jurors who had a good result with a chiropractor, leaving Adams with a jury that felt there were too many lawsuits and that pain and suffering cannot be equated with an award of monetary damages. Thus, Adams argues that she was prejudiced by having to use a peremptory challenge on Juror #172.

We first note that the excusal of jurors for cause is a matter within the sound discretion of the trial court. Thompson v. Commonwealth, 147 S.W.3d 22, 51 (Ky. 2004). “The test for determining whether a juror should be stricken for cause is ‘whether, after having heard all of the evidence, the prospective juror can conform his views to the requirements of the law and render a fair and impartial verdict.’” Id. quoting Mabe v. Commonwealth, Ky., 884 S.W.2d 668, 671 (1994). The decision to exclude a juror for cause is based on the totality of the circumstances, not on a response to any one question. Fugett v. Commonwealth, 250 S.W.3d 604, 613 (Ky. 2008). After a review of voir dire concerning Juror #172, we believe that the trial court did not abuse its discretion in not excusing Juror #172. In light of the totality of the circumstances, Juror #172 indicated that she could, after hearing all the evidence, conform her views to the requirements of the law and render a fair and impartial verdict.4 Accordingly, the trial court did not abuse its discretion in failing to excuse Juror #172 for cause.

In light of the aforementioned, we affirm the trial court’s denial of Adams’s motion for a new trial and the corresponding jury verdict.

Appeals: Preserving error on appeal (instructions, manifest injustice, as applied to judge issues re unjust enrichment and piercing the corporate veil

The following published decision addresses the failure to preserve error on appeal relative to instructions.  The issues surrounded preserving the error, manifest injustice; within the context of unjust enrichment and piercing the corporate veil. 

JAN. 20, 2012

Killian also argues that the trial court erred in allowing a jury instruction on unjust enrichment. Although it is unclear, it appears that Killian is arguing that, by allowing the jury instruction on unjust enrichment, the trial court implicitly pierced the corporate veil, allowing Killian to be held personally liable.

The unjust enrichment jury instruction read as follows: INSTRUCTION NO. 6
Are you satisfied from the evidence that:

a) That SJK, SK Development, LLC and Steven Killian have each benefitted, and have continued to benefit economically by the acquisition of Settlers Trace and that such acquisition would not have been possible unless Tunacakes had agreed to enter into the Consulting Agreement with SJK;
b) That SJK, SK Development, LLC and Steven Killian have each benefitted, and continued to benefit economically by the [sic] purchasing Settlers Trace and that said acquisition would not have been possible unless Tunacakes accepted the Promissory Note from SJK;
c) SJK, SK Development, LLC and Steven Killian, continue to use, possess and/or otherwise enjoy the benefits of an income producing business and property, which would not have been available, but for Tunacakes’ acceptance of the payment terms of the Consulting Agreement and Promissory Note; and
d) To prevent unjust enrichment, SJK, SK Development, LLC and Steven Killian, are jointly and severally liable for full restitution to Tunacakes in amounts now due and owing under the payment terms of the Consulting Agreement and Promissory Note.

Initially, we note that Killian’s brief fails to include a statement on how he preserved this issue for appeal as required by Kentucky Rule of Civil Procedure (CR) 76.12(4)(c)(v). It is not the burden of the Court to search the record to find proof of the Appellants’ claims. See Phelps v. Louisville Water Co., 103 S.W.3d 46, 53 (Ky. 2003). Having carefully reviewed the record, we note that this issue was not preserved for review because Killian did not timely object to the unjust enrichment instruction. Pursuant to CR 51(3), the time to object to jury instructions is prior to the court instructing the jury. As stated in Harris v. Thompson, 497 S.W.2d 422, 431 (Ky. 1973), “if the appellants were not satisfied with any phase or portion of the instructions the time to speak was before they were given to the jury.” Further, “a general objection without specification is insufficient to preserve the [alleged] error.” Burgess v. Taylor, 44 S.W.3d 806, 814 (Ky. App. 2001).

A review of the record reflects that Killian made an objection to the jury instruction on unjust enrichment, but only argued that Tunacakes had not presented sufficient evidence to support a finding of unjust enrichment. Killian did not argue that, by allowing an unjust enrichment instruction, the trial court would be implicitly finding that the corporate veil should be pierced. Although it does appear that Killian raised this issue in his motion to alter, amend or vacate the judgment, an objection to a jury instruction raised for the first time in a post-trial
motion is not timely. Burgess, 44 S.W.3d at 814. Therefore, this issue is not properly preserved for our review.

Because this issue was not properly preserved, our review is confined to manifest injustice. As set forth in Carrs Fork Corp. v. Kodak Min. Co., 809 S.W.2d 699, 701 (Ky. 1991):
Civil Rule 61.02 provides that palpable error which affects the substantial rights of a party may be considered by the reviewing court even though insufficiently raised or preserved for review and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error. In applying this rule, the palpable error must result from action taken by the court rather than an act or omission by the attorneys or litigants.
Further, manifest injustice exists only if the error “so seriously affected the fairness, integrity, or public reputation of the proceeding as to be ‘shocking or jurisprudentially intolerable.’” Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky. 2009) (quoting Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006)). We believe that the jury instruction on unjust enrichment resulted in a manifest injustice.

First, we note that any jury instruction on unjust enrichment is improper because unjust enrichment is an equitable doctrine, Dodson v. Key, 508 S.W.2d 586 (Ky. 1974), and the application of an equitable doctrine to the facts of a case is a question of law. Daniels v. CDB Bell, LLC, 300 S.W.3d 204, 210 (Ky. App. 2009). Accordingly, the question of whether Killian, SK Development, and SJK Properties were unjustly enriched, if it were an appropriate inquiry, should not have been decided by the jury but by the trial court.

Next, we note that unjust enrichment is not an available remedy to Tunacakes with regard to SK Development and SJK Properties. The doctrine of unjust enrichment “is applicable as a basis of restitution to prevent one person from keeping money or benefits belonging to another.” Haeberle v. St. Paul Fire & Marine Ins., 769 S.W.2d 64, 67 (Ky. App. 1989) (citations omitted). However, when “an express contract is made defining the circumstances under which an obligation may arise with reference to a certain subject matter such contract excludes the possibility of an implied contract concerning the same matter.” Sparks Milling Co. v. Powell, 283 Ky. 669, 672, 143 S.W.2d 75, 76 (1940). Therefore, any recovery must be under the terms of the express contract. Id. In this case, there was a written contract that set forth the obligations of SK Development and SJK Properties to Tunacakes. Thus, unjust enrichment was not an available remedy for Tunacakes as to SK Development and SJK Properties.

Finally, we conclude that unjust enrichment, as used in this case, imposed personal liability on Killian thereby piercing the corporate veil. As noted by this Court in Daniels, 300 S.W.3d at 211, “piercing the corporate veil” is “the judicial act of imposing personal liability on otherwise immune corporate officers, directors, and shareholders for the corporation’s wrongful acts, . . .” (Quoting 18 C.J.S. Corporations § 14 (2008)). “[T]he decision as to whether to pierce the corporate veil is an equitable one to be decided by the trial court and not the jury.” Id. at 213.

Based on the preceding, Killian could not be held personally liable until the trial court determined that the corporate veil could be pierced. Having carefully reviewed the record, we note that the trial court did not make such a finding. Absent such a finding, the unjust enrichment instruction, which allowed the jury to hold Killian personally liable for the liabilities of SK Development and SJK Properties, resulted in a manifest injustice. Accordingly, we remand this case for the trial court to determine whether the corporate veil can be pierced. If the corporate veil cannot be pierced, then a finding that Killian was unjustly enriched would be inappropriate because Killian cannot be held personally liable. If the trial court determines that the corporate veil can be pierced, then there need not be a determination as to whether Killian was unjustly enriched. Killian would be personally and contractually liable for the wrongful acts of SK Development and SJK Properties. As previously noted, because Tunacakes would have contractual remedies, the equitable remedy of unjust enrichment would not apply.

Appeals of Administrative Rulings: Timely filing required (limitation of actions)


From Gallien v. Kentucky Board of Medical Licensure, COA, Published, 3/25/2011

In this case, the Order of Suspension was mailed to Appellant on April 25, 2007. However, she did not file her petition for judicial review until August 18, 2008 – nearly 18 months later. This delay is fatal to Appellant’s appeal. Our precedent holds that “[w]here an appeal is filed in the circuit court by grant of a statute, as in this case, the parties must strictly comply with the dictates of that statute.” Spencer County Preservation, Inc. v. Beacon Hill, LLC, 214 S.W.3d 327, 329 (Ky. App. 2007). This is because “[a]n appeal from an administrative decision is a matter of legislative grace and not a right, and thus the failure to strictly follow statutory guidelines for the appeal is fatal.” Id.; see also Bd. of Adjustments of City of Richmond v. Flood, 581 S.W.2d 1, 2 (Ky. 1978); Ky. Unemployment Ins. Comm’n v. Providian Agency Group, Inc., 981 S.W.2d 138, 139-40 (Ky. App. 1998); Taylor v. Duke, 896 S.W.2d 618, 621 (Ky. App. 1995). The circuit court concluded that it lacked jurisdiction to consider Appellant’s petition for judicial review because the petition had not been timely filed within the statutory 30-day period; thus, dismissal was merited. This conclusion was the correct one.



Std. of Review: By appellate court of arbitration award

An appeal of an order confirming or denying confirmation of an
arbitration award is specifically provided for in KRS 417.220. The circuit court’s judgment confirming the respective arbitration awards made in favor of both Dr. Jacob and Bluegrass in this case did not include any fact finding by the circuit court. The judgment states the following:
1.    That both parties[’] motion to confirm the Arbitrator’s Award is granted;
2.    That this Court further reaffirms its previous finding that the dispute between the parties arose from a contractual agreement which the parties had agreed to arbitrate;
3.    That all other issues involving the scope of arbitration, the issues to be arbitrated and the parties bound by the arbitration were properly addressed by the Arbitrator;
4.    That the Arbitrator’s opinion was supported by substantial evidence;
5.    That this Court hereby confirms the Arbitrator’s Clarified Award and pursuant to KRS 417.170 issues a Judgment in accordance with the Arbitrator’s Award and Clarified Award;
6.    That this Judgment is final and appealable and there is no just cause for delay;
7.    That this Judgment shall bear interest at the rate of 12% per annum until paid;
8.    That [Dr.] Jacob’s objection to confirmation is overruled; and
9.    That [Dr.] Jacob’s counterclaim is dismissed.
Thus, our review on appeal for errors below is limited to questions of law which are reviewed de novo. Fischer v. MBNA America Bank, N.A., 248 S.W.3d 567 (Ky.App. 2007). Accordingly, we are not bound to defer to the circuit court’s application of legal principles or law, including applicable contract law, in determining whether an arbitration agreement existed in this case. Conseco Fin. Serv. Corp. v. Wilder, 47 S.W.3d 335 (Ky.App. 2001).

COA 1/21/2011

CIVIL: Thomas Weird v. Eric Emberton (SC 3/18/2010)

Thomas Weird v. Eric Emberton
2008-SC-000372-DG March 18, 2010 Opinion of the Court; all concur. Justice Abramson not sitting.

On May 3, 2007, Weird tried to file his notice of appeal of judgment at the Jefferson Circuit Court’s office. However, the office closed early that day in observance of the annual Kentucky Derby Festival Parade. The Court of Appeals dismissed the appeal as untimely. The Supreme Court reversed, holding KRS 446.330 allows for an extra day when “the public office in which a document is to be filed is actually and legally closed.” The Court further held that advance notice of the early closure and the fact that Weird could have filed the notice of appeal at the district criminal traffic desk across the street did not deprive him of the additional day granted by the statute.