SC: February 2017 Decisions of the Supreme Court of Kentucky (Minutes)

Complete minutes with links to full text of all decisions posted by the Supreme Court this month.

Here are some of Feb. 2017 published cases:

  • Prejudgment interest. Rights of third party assignee of a debt. Violation of Fair Debt Collection Practices Act. Is a claim for recovery of prejudgment interest at the statutory rate by a third party assignee a violation of the Fair Debt Collection Practices Act?  Click here for full text of decision.
  • Compensatory and punitive damages for alleged trespass upon land. Trial court erred by directing a verdict in appellants’ favor on the issue of liability for the trespass and submitting only the issue of damages for the jury’s determination. Adjoining landowners were not indispensable parties to the trespass action.  Click here for full text of decision.

Here is a link to the indexed minutes for the Supreme Court of Kentucky at their official web site.

Here is link to the Kentucky Court Report’s archived minutes for the Supreme Court.

This month’s minutes of the published and not to be published decisions, disciplinary matters, discretionary reviews granted and denied, petitions for hearing requested and denied, and more are as follows.  Use the scroll arrows at the bottom left of the PDF document to scroll through the pages.

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SC: October 2016 Attorney Discipline Cases

Fred G. Greene, John Elias Dutra, Jeffrey Owens Moore, Maureen Ann Sullivan, Justin Neal O’Malley

ATTORNEY DISCIPLINE: 

A. Fred G. Greene v. Kentucky Bar Association 

2015-SC-000363-KB October 202, 2016 

Opinion and Order of the Court. All sitting; all concur. Greene admitted to violating SCR 3.130(1.15)(a) and SCR 3.130(1.8)(a). He moved the Court under the negotiated sanction rule, SCR 3.480(2), to impose a 181-day suspension with 61 days of the suspension to be probated for one year, conditioned upon Greene incurring no further disciplinary charges within one year from the date of the Court’s order, maintaining his continuing legal education requirements, and paying his membership dues. The KBA did not object to Greene’s motion.

The Court noted that it had rejected a prior negotiated sanction proposed by Greene and agreed to by the KBA in this same disciplinary action and had remanded the case for further consideration. The Court reviewed the underlying facts leading to the disciplinary charges, which involved Greene’s failure to properly maintain his escrow account and borrowing $50,000 from a client, ostensibly to cover the deficiency in his escrow account. Greene admitted to violating both SCR 3.130(1.15)(a) and SCR 3.130(1.8)(a).

The Court also reviewed Greene’s multiple prior disciplinary sanctions for unprofessional conduct, including six separate private admonitions, a public reprimand and a thirty-day suspension. The Court ultimately concluded that the sanction proposed by Greene and agreed to by the KBA was adequate, noting that 7

the sanction period will amount to an actual suspension of 120 days or 4 months. Accordingly, the Court granted Greene’s motion to impose a 180-day suspension with 61 days probated, conditioned upon Greene incurring no further disciplinary charges, maintaining his continuing legal education requirements and paying his membership dues.

B. Kentucky Bar Association v. John Elias Dutra 

2016-SC-000386-KB October 20, 2016 

Opinion and Order of the Court. All sitting; all concur. Dutra was charged with two disciplinary violations for failing to deposit an advance fee payment into an escrow account and abandoning his client, failing to return the client’s paperwork, and failing to properly withdraw from a case upon termination of representation. The Inquiry Commission’s charge was sent to Dutra by certified mail but acknowledgement of receipt was never returned. The following month, Dutra moved for a 21-day extension of time to respond to the Commission’s inquiry. His request was granted but no responsive pleading was ever filed.

The Commission ultimately submitted the matter to the Board of Governors as a default case. The Board unanimously found Dutra guilty of each charge and, after considering his prior disciplinary history, recommended that Dutra be suspended from the practice of law for thirty days and that he be required to repay his former client the sum of $1,550. The Board further recommended that Dutra’s suspension be probated for one year if he reimbursed the client within sixty days. The Supreme Court agreed with the Board’s recommendation and sanctioned Dutra accordingly.

C. Kentucky Bar Association v. Jeffrey Owens Moore 

2016-SC-000387-KB October 20, 2016 

Opinion and Order of the Court. All sitting; all concur. The Board of Governors considered two separate files against Moore, one containing a two-count charge and the other a three-count charge. The cases came before the Board as default cases under SCR 3.210 after Moore failed to respond to the charges. The Board unanimously found Moore guilty of all five counts and recommended that he be suspended from the practice of law for one year, to be served consecutively to his suspensions; that he be ordered to repay a loan to a client; that he be ordered to participate and comply with the Kentucky Lawyers Assistance Program; and that he be ordered to pay the costs of this action.

Neither the Office of Bar Counsel or Moore filed a notice of review so the Supreme Court exercised its authority under SCR 3.370(9) and adopted the recommendation of the Board. 8

D. Maureen Ann Sullivan v. Kentucky Bar Association 

2016-SC-000467-KB October 20, 2016 

Opinion and Order of the Court. All sitting; all concur. Sullivan moved the Court to impose a thirty day suspension from the practice of law, to be probated for two years on the condition that she not receive any new charges from the Inquiry Commission during the probationary period. She admitted violating the Rules of Professional Conduct, including SCR 3.130(1.4)(a)(5); SCR 3.130(1.15)(a); SCR 3.130(1.16)(d); SCR 3.130(5.5); and SCR 3.130(8.1)(b).

The KBA did not object to the proposed sanction, which was negotiated under SCR 3.480(2). Upon review of the facts and the relevant case law, the Supreme Court found the proposed discipline appropriate and sanctioned Sullivan accordingly.

E. Justin Neal O’Malley v. Kentucky Bar Association 

2016-SC-000483-KB October 20, 2016 

Opinion and Order of the Court. All sitting; all concur. The charges against O’Malley arose from his failure to repay fees to two clients after he failed to appear for their hearings in U.S. Bankruptcy Court. He later admitted that he lacked sufficient funds to repay his clients. He further admitted that he lacked sufficient knowledge in the practice of bankruptcy law and agreed not to file any bankruptcy cases for five years. As a result, he was charged with violating SCR 3.130(1.1) (competency); SCR 3.130(1.16)(d) (duties upon termination of representation); SCR 3.130(3.4)(c) (disobeying an obligation to a tribunal); and SCR 3.130(8.4)(c) (dishonesty).

O’Malley was suspended from the practice of law in Marcy 2015 for thirty days and has not been reinstated. He moved the Supreme Court to impose a 181-day suspension from the practice of law for his admitted violations of the Rules of Professional Conduct. The KBA did not object to the proposed discipline, which was negotiated under SCR 3.480(2). In agreeing to the sanction, the KBA cited O’Malley’s extensive mitigating evidence, including physical and mental impairments and his cooperation with the Kentucky Lawyers Assistance Program.

Upon review of the facts and the relevant case law, the Court found the proposed discipline to be appropriate and suspended O’Malley from the practice of law for 181 days.

 

SC: October 2016 Monthly Summaries of Published Opinions from Supreme Court of Ky

Here are the October 2016 summaries of published decisions and attorney disciplinary orders from the Supreme Court of Kentucky which have been prepared by the Administrative Office of the Courts.  Click here for the AOC Indexed Summaries by year and month.  Click here for the Kentucky Court Reports index of each month’s summary by year and month.

PREMISES LIABILITY, SLIP AND FALL (MCINTOSH REVISITED)

Ralph M. Goodwin v. Al J. Schneider Company D/B/A Galt House & Galt House East 

2015-SC-000380-DG October 20, 2016 

Opinion of the Court by Justice Keller. All sitting. Minton, C.J.; Hughes, Noble, and Wright, JJ., concur. Venters, J., concurs in result only. Cunningham, J., dissents without opinion. Mr. Goodwin, who was staying with his wife at the Galt House, slipped and fell while getting into the shower. Goodwin filed suit alleging that the Galt House failed to warn of the dangerously slippery condition and/or to take reasonable care to eliminate the condition by, in pertinent part, providing a bathmat. The Galt House moved for summary judgment arguing that it was not an insurer of Goodwin’s safety and that he had failed to exercise ordinary care to prevent his injury from an open and obvious condition. The circuit court granted the Galt House’s motion and Goodwin appealed to the Court of Appeals, which affirmed.

The Supreme Court reversed the Court of Appeals. In doing so, the Court noted the evolution of the law regarding the “open and obvious” affirmative defense that began with Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010) and continued through Shelton v. Kentucky Easter Seals Society, Inc., 43 S.W.3d 901 (Ky. 2013) and Carter v. Bullitt Host, LLC, 471 S.W.3d 288 (Ky. 2015). After summarizing the preceding cases, the Court held that “a landowner has a duty to take reasonable steps to eliminate unreasonably dangerous conditions on its land. The question for the court on summary judgment is whether the landowner breached that duty, a duty that exists whether the conditions are open and obvious or hidden. Thus, in determining whether the landowner has breached that duty, the court does not look to whether the conditions were open and obvious but to whether the landowner took reasonable steps to eliminate the risks created by the conditions.” Applying the preceding to the Galt House, the Court noted that the circuit court, in granting summary judgment, and Court of Appeals, in affirming, focused on a lack of industry standards setting forth a duty to provide bathmats. The Court held that the issue was not whether the Galt House had a duty to provide bathmats but whether the failure to provide bathmats breached the Galt House’s duty of care.

October2016

SC: September 2016 Attorney Discipline Cases

A. Cabell D. Francis, II v. Kentucky Bar Association 

2016-SC-000331-KB September 22, 2016 

Opinion and Order of the Court. All sitting; all concur. Francis was indicted for theft by unlawful taking and knowing exploitation of an adult. He negotiated a plea agreement with the Commonwealth that required him to plead guilty to amended charges, pay restitution and resign his license to practice law. In accordance with that agreement, Francis moved to resign under terms of permanent disbarment pursuant to SCR 3.480(3). The KBA had no objection. The Court granted the motion and permanently disbarred Francis from the practice of law in the Commonwealth.

B. Kentucky Bar Association v. Jeffrey Owens Moore 

2016-SC-000335-KB September 22, 2016 

Opinion and Order of the Court. All sitting; all concur. The Inquiry Commission issued a four-count charge against Moore. He failed to respond and the matter proceeded to the Board of Governors as a default case. The Board found Moore guilty of all four counts and recommended that he be suspended from the practice of law for one year, with sixty-one days to serve and the remainder probated for one year with conditions. Neither Moore nor Bar Counsel filed a notice of review. So the Court exercised its authority under SCR 3.370(9) and adopted the recommendation of the Board.

The Court further noted that it had recently indefinitely suspended Moore for his failure to respond to the charges in this case. However, the indefinite suspension had not been issued before the KBA submitted the current matter to the Court. Therefore, the Board did not take the indefinite suspension into account in its recommendation. For that reason, the Court adopted the Board’s recommended sanction and imposed it concurrently with his current indefinite suspension. 7

C. Kentucky Bar Association v. Douglas C. Brandon 

2016-SC-000336-KB September 22, 2016 

Opinion and Order of the Court. All sitting; all concur. In 2002, Brandon was indicted in federal court for his participation in an international Ponzi scheme. He was later convicted of securities fraud, wire fraud, and conspiracy to commit securities fraud and wire fraud.

Following his sentencing in 2005, the Supreme Court suspended Brandon from the practice of law. Brandon’s counsel then asked the Inquiry Commission to place the matter in abeyance under SCR 3.180(2). The matter remained in abeyance awaiting Brandon’s appeal of his judgment and sentence in the United States District Court, with counsel providing regular status updates. In May 2015, Bar Counsel moved the Commission to remove the matter from abeyance due to a lack of updates from Brandon’s counsel and information that Brandon had been released from incarceration. Subsequently, Bar Counsel served Brandon’s attorneys of record and sent a courtesy copy to Brandon’s bar roster address. The attempts were unsuccessful and the matter was removed from abeyance and a charge was filed against him. Brandon never answered the charge and the matter was submitted to the Board of Governors as a default case under SCR 3.210(1).

The Board ultimately found Brandon guilty of the charges and recommended that he be permanently disbarred. Upon review of the record, the Supreme Court agreed with the Board’s decision and adopted its recommendation to permanently disbar Brandon from the practice of law in the Commonwealth.

D. Kentucky Bar Association v. David Thomas Sparks 

2016-SC-000338-KB September 22, 2016 

Opinion and Order of the Court. All sitting; all concur. The Inquiry Commission issued a three-count charge against Sparks for failing to respond to his clients’ request for information; failing to return the clients’ paperwork, abandoning the clients, and failing to properly withdraw from a case upon termination of the representation; and failing to respond to a lawful demand for information from an admissions or disciplinary authority. Sparks acknowledged receipt of the charge via certified mail but declined to respond. So the Commission submitted the matter to the Board of Governors as a default case under SCR 3.210. The Board found Sparks guilty of each charge and recommended that he be suspended for 181 days and be referred to KYLAP. The Board also noted that in February 2016, Sparks had been suspended from the practice of law for 181 days, with 61 days to serve and the balance probated for two years with conditions, and recommended that his new suspension run consecutive to his current suspension. The Supreme Court reviewed the record and agreed that the Board reached the appropriation conclusions as to Sparks’s guilt and adopted the recommendation that he be suspended from the practice of law for 181 days, to run consecutive with the 181-day suspension ordered by the Court in February 2016. 8

E. Michael Stephen Wade v. Kentucky Bar Association 

2016-SC-000373-KB September 22, 2016 

Opinion and Order of the Court. All sitting; all concur. Wade moved the Supreme Court to accept his motion for consensual discipline for his admitted violations of the Kentucky Rules of Professional Conduct. Wade, who has been under temporary suspension from the practice of law since October 2012, received two charges from the Inquiry Commission relating to two separate criminal proceedings against him in Jefferson and Bullitt counties. The Court acknowledged that since his convictions, Wade had taken a number of steps to treat his drug and alcohol addiction, including extensive inpatient treatment, entering a supervision agreement with KYLAP, and regularly attending twelve-step support meetings. Wade urged the Court to enter an Order suspending his license to practice law for a period of four years and six months, retroactive from October 26, 2012, or until such time as he has satisfied the full terms and conditions of pretrial diversion in the Jefferson and Bullitt Circuit Court proceedings, whichever event last occurs. The KBA, after a thorough review of his motion and analogous case law, did not object to Wade’s proposed discipline. The Court agreed it was similarly satisfied with the negotiated sanction and agreed to grant the motion, suspending Wade from the practice of law until April 26, 2017, or until he satisfies the full terms and conditions of his two criminal proceedings and conditions upon his continued participation in KYLAP.

F. Kentucky Bar Association v. George Keith Wells
September 22, 2016 

Opinion and Order ofthe Court. All sitting; all concur. Wells was charged with violating several provisions of the Kentucky Rules of Professional Conduct relating to his failure to provide competent representation in a case involving mineral title examination and oil leases. In addition to these grievances, Wells was suspended from practicing law in Kentucky in January 2016 for his failure to comply with continuing legal education requirements and failure to pay bar dues. Following the filing of the complaint and charges, Wells failed to respond in any manner.

After considering the charges alleged in the present case, the Board recommended that Wells be suspended from the practice of law for 61 days and repay the unearned fee he received from his client. The Court agreed with the Board’s recommendation and suspended Wells for 61 days, ordering him to repay his client $10,000 within twenty days of the date of its order.

SC: September 2016 Monthly Summaries of Published Opinions from Supreme Court of Ky

Here are the September 2016 summary of published decisions and attorney disciplinary orders from the Supreme Court of Kentucky which have been prepared by the Administrative Office of the Courts.  Click here for the AOC Indexed Summaries by year and month.  Click here for the Kentucky Court Reports index of each month’s summary by year and month.

Insurance Law:

Samantha G. Hollway v. Direct General Insurance Company of Mississippi, Inc. 
2014-SC-000758-DG September 22, 2016

Opinion of the Court by Chief Justice Minton. All sitting; all concur. Hollaway was involved in a low speed collision in a parking lot with Direct General’s insured. Direct General arguably assumed liability for causing the accident, but later recanted and disputed liability. Hollaway filed a multitude of claims, including a bad faith claim against Direct General for failing to fairly negotiate her claim. The trial court awarded Direct General summary judgment and the Court of Appeals affirmed.

A unanimous court affirmed the Court of Appeals. Though it is debatable whether the insurance company admitted causing the accident, it never conceded liability for the injuries she claims she sustained from the accident—Hollaway’s profession rendered itself to injuries of this type. But even if Direct General conceded liability, Hollaway failed to establish that the insurer acted with the level of intent necessary to prove a bad-faith claim. Notably, the Court removed the word “evil” from consideration in this aspect of the analysis.

Malicious Prosecution:

Gary Martin v. Stephen O’Daniel 
2014-SC-000373-DG 
Mike Sapp v. Stephen O’Daniel 
2014-SC-000389-DG
Bobby Motley v. Stephen O’Daniel 
2014-SC-000394-DG
September 22, 2016

Opinion of the Court by Justice Venters. All sitting. Minton, C.J.; Hughes, Noble, and Wright, JJ., concur. Cunningham, J., dissents by separate opinion in which Keller, J., joins. Police officers sued for malicious prosecution arising from their investigatory activities which led to the indictment and trial of the plaintiff for forgery, arising from his effort to obtain legal title to a stolen vehicle. Issues presented: 1) Whether police officers have governmental immunity from suit for malicious prosecution; 2) whether officers who turned over evidence to the prosecutor, who in turn made the prosecutorial decision to seek indictment, could be liable for malicious prosecution upon plaintiff’s acquittal. Held: 1) the doctrine of governmental immunity does not protect government employees for malicious conduct. Plaintiff asserting claim of malicious prosecution must prove malice, which if proven, negates the defense of governmental immunity; 2) “procuring” a criminal or civil judicial proceeding is synonymous with being the proximate and efficient cause of putting the law in motion against another person; 3) abrogating 4

Raine v. Drasin, 621 S.W.2d 895, 899 (Ky.1981), the Supreme Court restated the elements of malicious prosecution action as follows: 1) the defendant initiated, continued, or procured a criminal or civil judicial proceeding, or an administrative disciplinary proceeding against the plaintiff; 2) the defendant acted without probable cause; 3) the defendant acted with malice, which, in the criminal context, means seeking to achieve a purpose other than bringing an offender to justice; and in the civil context, means seeking to achieve a purpose other than the proper adjudication of the claim upon which the underlying proceeding was based; 4) the proceeding, except in ex parte civil actions, terminated in favor of the person against whom it was brought; and 5) the plaintiff suffered damages as a result of the proceeding.

Medical Malpractice Discovery.  Writ of Prohibition.

Baptist Health Richmond, Inc. v. Hon. William G. Clouse, Jr., Judge, Madison Circuit Court, Division 1, et al.
2015-SC-000657-MR September 22, 2016 

Opinion of the Court by Justice Keller. All sitting. Keller, Cunningham, Noble and Venters, JJ., concur. Hughes, J., concurs by separate opinion in which Minton, C.J., and Wright, J., join. The issue before the court involved the interaction of Kentucky’s discovery rules in medical malpractice cases and the federal Patient Safety and Quality Improvement Act (the Act). Note that the Court had previously addressed this interaction in Tibbs v. Bunnell, 448 S.W. 3d 796 (Ky. 2014), a plurality opinion.

Congress enacted the Act to encourage hospitals to engage in self-analysis. It therefore provides that certain information obtained during that self-analysis and contained in the hospital’s safety evaluation system is protected from discovery. However, the Act also states that its intent was not to interfere with existing state reporting requirements and discovery rules. Thus, information mandated by state requirements and otherwise discoverable would not be protected by the Act. The plaintiff in this case requested a number of documents which Baptist Health refused to produce claiming protection under the Act.

The Court, based on recently generated guidance from the Department of Health and Human Services, noted that the Commonwealth requires hospitals to collect certain information which has traditionally been discoverable. A hospital cannot, 6

based on the Act, claim that such otherwise discoverable information is protected by the Act. Furthermore, a hospital cannot take otherwise discoverable information, place it in a protected safety evaluation system, and claim that the information is not discoverable. As long as a hospital is complying with its state mandated reporting requirements, the trial court has no reason to examine the information in the protected safety evaluation system. However, if a hospital is not complying with state mandates, the court can conduct an in camera review of the information in the protected safety evaluation system to determine if any state mandated information is contained therein.

In her concurring opinion, Justice Hughes further delineates the procedure a court should undertake in determining whether and to what extent contested information is discoverable.

 

September2016

SC: March 2017 Oral Arguments before Ky Supreme Court

Click here for link to table of all monthly oral argument calendars at Kentucky’s Administrative Office of the Courts (AOC) from 2005 to date.

Click here for a link to all of the Kentucky Court Report’s postings on Supreme Court argument calendars.

Click here to catch live web streaming oral arguments on the date and time of the argument.  They are not saved for later viewing.

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SC: February 2017 – Oral Arguments before Ky Supreme Court Calendar

Click here for link to table of all monthly oral argument calendars at Kentucky’s Administrative Office of the Courts (AOC) from 2005 to date.

Click here for a link to all of the Kentucky Court Report’s postings on Supreme Court argument calendars.

Click here to catch live web streaming oral arguments on the date and time of the argument.  They are not saved for later viewing.

SCOFEB17

SC: August 2016 Monthly Summaries of Published Opinions and Attorney Disciplinary Actions from Supreme Court of Ky

Here are the August 2016 summary of published decisions and attorney disciplinary orders from the Supreme Court of Kentucky which have been prepared by the Administrative Office of the Courts.  Click here for the AOC Indexed Summaries by year and month.  Click here for the Kentucky Court Reports index of each month’s summary by year and month.

Only one insurance decision – underinsured motorist benefits.

Countryway Insurance Company v. United Financial Casualty Insurance Company, et al.

2014-SC-000265-DG August 25, 2016

Opinion of the Court by Justice Hughes. All sitting; all concur. Auto insurers both providing uninsured motorist coverage to a person injured while a passenger in vehicle owned by another raised a priority issue in the trial court. That court resolved the issue by ruling that the companies’ competing “other insurance” clauses cancelled each other out and left the companies jointly liable on a pro-rata basis. Reversing, the Court of Appeals ruled that primary liability rested with the passenger’s personal carrier. Reversing the Court of Appeals, the Supreme Court held, in accord with Kentucky Farm Bureau Mut. Ins. Co. v. Shelter Mut. Ins. Co., 326 S.W.3d 803 (Ky. 2010), that the Motor Vehicle Reparations Act implicitly fixes primary uninsured motorist coverage on the vehicle owner’s insurer.

Here are all the summaries with link to full text of the published cases for this month:

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