Stds of Review: of Denial of Motion to Intervene as Matter of Right – substance and timeliness of motion (Hazel Enterprises v. Community Financials, COA, Pub. 7/27/12)

We review the denial of a motion to intervene as a matter of right for clear error. Carter v. Smith, 170 S.W.3d 402, 409 (Ky. App. 2004). However, a court’s evaluation of the timeliness of a motion to intervene is reviewed under an abuse of discretion standard. Id. at 408.

* * *

The sole issue on appeal is whether the circuit court erred when it denied Hazel’s motion to intervene as a matter of right. Intervention as a matter of right is permitted:

Upon timely application . . . when the applicant claims an interest relating to the property or transaction which is the subject of the action and is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest . . . .

CR 24.01(1)(b) (emphasis added). Thus, intervention is only permitted upon a timely motion. Id; see Carter, 170 S.W.3d at 407-09.

A court may consider the following factors to determine whether a motion to intervene was timely: “‘(1) [T]he point to which the suit has progressed; (2) the purpose for which intervention is sought; (3) the length of time preceding the application during which the proposed intervenor knew or reasonably should have known of his interest in the case; (4) the prejudice to the original parties due to the proposed intervenor’s failure, after he or she knew or reasonably should have known of his or her interest in the case, to apply promptly for intervention; and (5) the existence of unusual circumstances militating against or in favor of intervention.’” Carter, 170 S.W.3d at 408 (quoting Grubbs v. Norris, 870 F.2d 343, 345 (6th Cir. 1989)).

Although post-judgment intervention is not strictly forbidden, it is widely within the discretion of the circuit judge. Arnold v. Commonwealth, 62 S.W.3d 366, 369 (Ky. 2001). Timeliness is a question of fact, which generally should be left to the circuit court. Ambassador College v. Combs, 636 S.W.2d 305, 307 (Ky. 1982) (citing Dairyland Ins. Co. v. Clark, 476 S.W.2d 202, 203 (Ky. 1972)). A “party wishing to intervene after final judgment has a ‘special burden’ to justify the untimeliness.” Arnold, 62 S.W.3d at 369 (quoting Monticello Electric Plant Bd. v. Board of Educ. of Wayne County, 310 S.W.2d 272, 274 (Ky. 1958)).

Taken from Hazel Enerprises, LLC v. Community Financial Services Bank, COA, Pub., 7/27/2012

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.


Standard of Review: For appellate court in reviewing trial courts application of statute of limitations

Statute of Limitations Ruling by trial court.  A question of law, and when within the context of applying the SOL in a UIM context a question of contract interpretation, too. Review on appeal:

From Hill v. State Farm, COA, Pub., 7/6/2012


“‘Whether an action is barred by the statute of limitations is a question of law[,]’” which an appellate court reviews de novo. Ragland v. DiGiuro, 352 S.W.3d 908, 912 (Ky.App. 2010) (quoting Cuppy v. Gen. Acc. Fire & Life Assur. Corp., 378 S.W.2d 629, 631 (Ky. 1964)). We review a trial court’s grant of summary judgment to “determine whether the trial court correctly found that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law.” Combs v. Albert Kahn Assoc., Inc., 183 S.W.3d 190, 193-94 (Ky.App. 2006) (citation omitted).


“Interpretation and construction of an insurance contract is a matter of law for the court.” Kemper Nat’l Ins. Cos. v. Heaven Hill Distilleries, Inc., 82 S.W.3d 869, 871 (Ky. 2002) (citations omitted).

A policy of insurance is to be construed liberally in favor of the insured, and if, from the language, there is doubt or uncertainty as to its meaning, and it is susceptible to two interpretations, one favorable to the insured and the other favorable to the insurer, the former will be adopted.Id. at 874 (quoting St. Paul Fire & Marine Ins. Co. v. Powell-Walton-Milward, Inc., 870 S.W.2d 223, 227 (Ky. 1994)).

Section 5, Item 2.d in the State Farm contract precludes a right of action against State Farm for “underinsured motor vehicle coverage unless such action is commenced not later than two (2) years after . . . the last . . . reparation payment made by any reparation obligator[.]” Here, the accident occurred in 2006 but the last personal-injury protection (PIP) payment was received September 25, 2007. Therefore, Hill had until September 25, 2009, to commence an action against State Farm in order to comply with the contractual limitations period.

While State Farm did not define “commence” in its contract, the commonly accepted definition of “commence” in Kentucky jurisprudence is found in CR1 3.01, which provides that “[a] civil action is commenced by the filing of a complaint with the court and the issuance of a summons[.]” KRS2 413.250 further states that an action is commenced “on the date of the first summons or process issued in good faith from the court[.]”


That being said, these definitions of “commence,” as well as use of the word in State Farm’s contract, apply to original complaints, which are distinguishable from amended complaints. For original complaints, CR 4.01 explains that “[u]pon the filing of the complaint . . . the clerk shall forthwith issue the required

summons[.]” Yet, no comparable rule exists for amended complaints. Bradford v.

Bracken County, 767 F.Supp.2d 740, 751 (E.D.Ky. 2011) (citations omitted). In the present case, Hill was required to file a motion for leave to amend her complaint because she was seeking to add a new defendant. Amended complaints are governed by CR 15.01, which provides, in part:

A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 20 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.

Although no responsive pleading had yet been filed by State Farm, it would be illogical to allow a party to amend a complaint to add a new party without leave of the court. See Becherer v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 43 F.3d 1054, 1069 (6th Cir. 1995) (“If we accept this interpretation of [Federal] Rule 15(a), a plaintiff could always add a new party, at any point in the litigation, without court permission.”).

State Farm argues that for purposes of the contract, Hill’s complaint was not commenced until the trial court granted her motion and issued the summons. However, Hill’s motion for leave to amend was filed four days before the limitations period expired, even though the motion was not heard or granted until after the period had run. Hill had no control over when the trial court’s schedule would permit her motion to be heard. Since amended complaints that add new parties are procedurally different from original complaints in requiring leave of the court, a strict application of the definition of “commence” would be prejudicial to Hill. Thus, we hold that filing the motion for leave to amend and attaching the amended complaint adding State Farm as a party, given that the trial court subsequently granted the motion, was sufficient to commence the action for purposes of the limitations period in State Farm’s contract.

Moreover, the linchpin in determining when a party would be prejudiced if required to defend a case on its merits is notice, which State Farm received before the period expired. Nolph v. Scott, 725 S.W.2d 860, 862 (Ky. 1987) (citing Schiavone v. Fortune, 477 U.S. 21, 31, 106 S.Ct. 2379, 2385, 91 L.Ed.2d 18 (1986)). The record indicates that counsel for State Farm was served by mail with Hill’s motion for leave to amend her complaint and an attached copy of the amended complaint on September 18, 2009, three days before the motion was filed with the clerk and a week before the contractual limitations period expired. As a result, we find that State Farm was put on notice of the pending action and would not be prejudiced in having to defend the case on its merits.

We further note that while limitations periods and promptness in filing are critical aspects of the judicial system, to bar Hill’s claims for reasons beyond her control after she exercised due diligence would be unfair. See Nanny v. Smith, 260 S.W.3d 815, 818 (Ky. 2008) (“under the unique facts presented here, we are simply deeming done what should have been done per CR 4.01 by recognizing an equitable tolling of the statute of limitations.”); Robertson v. Commonwealth, 177 S.W.3d 789 (Ky. 2005) (holding that equitable tolling is appropriate in

circumstances that are beyond the party’s control when the party has exercised due diligence and is clearly prejudiced). But see Steadman v. Gentry, 314 S.W.3d 760 (Ky.App. 2010) (holding that the statute of limitations period should not be tolled when defendant’s motion to amend was granted four months before limitations period expired but defendant waited seven months after period expired to ensure summons was issued).

Here, Hill exercised due diligence and cannot be expected to foresee exactly when her motion for leave to amend would be heard. Thus, we hold that filing a timely motion for leave to amend and attaching an amended complaint while also providing notice to the defending party is sufficient to timely commence the action against State Farm. For the foregoing reasons, the Boone Circuit Court’s grant of summary judgment to State Farm is reversed and the case is remanded to the trial court for further proceedings consistent with this opinion.

STANDARDS OF REVIEW: Of a Decision to deny writ of prohibition

Arnett v. Hutchens,  COA, NPO, 6/29/2012

The proper standard of review of a decision to deny a writ of prohibition“depends on the class, or category, of writ case.” Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 810 (Ky. 2004). De novo review is generally the proper standard where the lower court is alleged to be acting outside its jurisdiction, because jurisdiction is generally only a question of law. Id. Thus, we review the denial of the writ de novo, giving no deference to the judgment below. Id.

“The writ of prohibition is extraordinary in nature, and the courts of this Commonwealth have always been cautious and conservative both in entertaining petitions for and in granting such relief.” Appalachian Reg’l Healthcare, Inc. v. Coleman, 239 S.W.3d 49, 52 (Ky. 2007) (internal quotation omitted). As set forth in Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004):

A writ of prohibition may be granted upon a showing that (1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted. (Emphasis in original). Richard is challenging the jurisdiction of the district court and argues that it did not have subject matter jurisdiction to enter the October 2009 orders.

We note that the purpose of a writ of prohibition is to prevent an action in the lower court from taking place. In this case, there are no allegations that the district court “is proceeding or is about to proceed outside of its jurisdiction . . . .” Hoskins, 150 S.W.3d at 10 (emphasis added). The actions Richard complains of have already taken place. Specifically, the district court entered two orders that required Richard to repay the loan and removed him as guardian. There appears to be no dispute that Richard complied and repaid the loan. Therefore, there is nothing to prohibit in this case. Accordingly, a writ of prohibition was not the appropriate remedy in this case.

STDS of REVIEW: Punitive Damages Constitutionality

O.(R.)  VS. C.(A.)
COA, Published, 3/26/2012

We review the constitutionality of punitive damages de novo. Steel Technologies, Inc. v. Congleton, 234 S.W.3d 920, 931 (Ky. 2007); McDonald’s Corporation v. Ogborn, 309 S.W.3d 274, 297 (Ky. App. 2009).

For an in-depth explanation as to the policy furthering a de novo standard of review, see Ragland v. Digiuro, 352 S.W.3d 908, 916-917 (Ky. App. 210)

STDS of REVIEW: Appellate review of jury instructions in civil case

12/22/2011 COA

With regard to the review of jury instructions, any errors in jury instructions are considered as questions of law and are reviewed by this Court de novo. Hamilton v. CSX Transportation, Inc., 208 S.W.3d 272, 275 (Ky. App. 2006).

STDS OF REVIEW: Appellate review of directed verdict denial



The standard of review for reviewing a motion for a directed verdict is
set forth in Lewis v. Bledsoe Surface Mining Company, 798 S.W.2d 459, 461–62 (Ky. 1990), as follows:

Upon review of the evidence supporting a judgment entered upon a jury verdict, the role of an appellate court is limited to determining whether the trial court erred in failing to grant the motion for directed verdict. All evidence which favors the prevailing party must be taken as true and the reviewing court is not at liberty to determine credibility or the weight which should be given to the evidence, these being functions reserved to the trier of fact. Kentucky & Indiana Terminal R. Co. v. Cantrell, 298 Ky., 743, 184 S.W.2d 111 (1944), and Cochran v. Downing, Ky., 247 S.W.2d 228 (1952). The prevailing party is entitled to all reasonable inferences which may be drawn from the evidence. Upon completion of such an evidentiary review, the appellate court must determine whether the verdict rendered is “‘palpably or flagrantly’ against the evidence so as ‘to indicate that it was reached as a result of passion or prejudice.’” NCAA v. Hornung, Ky., 754 S.W.2d 855, 860 (1988). If the reviewing court concludes that such is the case, it is at liberty to reverse the judgment on the grounds that the trial court erred in failing to sustain the motion for directed verdict. Otherwise, the judgment must be affirmed.

Thus, as the reviewing court, we do not address issues of credibility or the weight of the evidence. Our responsibility is to treat all evidence in favor of the prevailing party as true and make all reasonable inferences that may be drawn from the evidence in favor of the prevailing party. Under such circumstances the judgment of the trial court will only be reversed when a verdict is so palpably or flagrantly against the evidence as to indicate that it was reached as a result of passion or prejudice. In the instant case, the prevailing party is Undertow Trucking. Similarly, the same standard that is used for a directed verdict is also used for a judgment notwithstanding the verdict. Lovins v. Napier, 814 S.W.2d 921, 922 (Ky. 1991).

Stds of Review: Appellate review of dismissal for lack of prosecution


ACREE, JUDGE: Appellants appeal the Floyd Circuit Court’s order awarding attorney fees to the Appellee, the Estate of Herman Lester. Specifically, the question presented is whether an attorney who withdraws from representation is entitled to recover his fee pursuant to the original contingency fee agreement, or limited to recovery on a quantum meruit basis. Upon the facts before us, we find quantum meruit is the proper calculation of fees. Therefore, we vacate the order of the Floyd Circuit Court and remand for additional proceedings.

Stds of Review: Disability Retirement Benefits

From, West v. Kentucky Retirement System, COA, NPO, 7/15/2011

Upon review of the denial of disability retirement benefits, we accept the agency’s findings of fact as true as long as they are supported by substantial evidence. Bowling v. Natural Resources and Environmental Protection Cabinet, 891 S.W.2d 406 (Ky. App. 1995). Substantial evidence is such evidence as would “induce conviction in the minds of reasonable [persons].” Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998). Where it is determined that the agency’s findings are supported by substantial evidence, the court must then ask whether the agency has correctly applied the law. Kentucky
Unemployment Insurance Commission v. Landmark Community Newspapers of Kentucky, Inc., 91 S.W.3d 575, 578 (Ky. 2002). A reviewing court may also reverse a final order of an administrative agency, in whole or in part, where it is found that the agency’s order violates statutory or constitutional provisions, is in excess of the agency’s authority as granted by statute, or is deficient as otherwise provided by law. KRS 13B.150(2).

STDS OF REVIEW: Family Court’s determination of best interests of child

From DJD v. Cabinet of Health and Family Services,  COA, Published 7/8/2011

When reviewing a family court’s determination of the best interests of a child, we must apply the abuse of discretion standard. Young v. Holmes, 295 S.W.3d 144, 146 (Ky.App. 2009). Absent a showing that a decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles, a family court’s determination on the issue will not be an abuse of discretion and will be sustained. Miller v. Harris, 320 S.W.3d 138, 141 (Ky.App. 2010).