COA 2010 Minutes: April 23, 2010 (Nos.399-414)

COA 2010 Minutes: April 23, 2010 (Nos.399-414)

  • Above link to minutes is full text of minutes with link to full text
    of each decision.
  • 22 decisions
  • Published Decisions:  4

PUBLISHED DECISIONS WITH SHORT SYNOPSIS AND LINK TO FULL TEXT OF
EACH:

399 – BUSINESS LAW, SHAREHOLDER SUITS
SAHNI (DAVINDER) VS. HOCK (JANETT), ET AL.
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
NICKELL (PRESIDING JUDGE)
COMBS (CONCURS) AND TAYLOR (CONCURS IN PART, DISSENTS IN PART, AND FILES SEPARATE OPINION)
2007-CA-001785-MR
2007-CA-002421-MR
TO BE PUBLISHED
JEFFERSON

Davinder Sahni, appeals from a jury verdict in favor of Janett Hock, individually and on behalf of Emergency Medical Systems, Inc. (EMS), on her direct and shareholder’s derivative claims for breach of fiduciary duty. Sahni argues: (1) Hock failed to satisfy the demand requirement of KRS1 271B.7-400(2); (2) Hock does not fairly and adequately represent the interests of EMS shareholders; (3) Hock lacks standing to pursue her direct claims for breach of fiduciary duty; and (4) Hock presented no evidence supporting pre-judgment interest. We affirm in part, reverse in part, and remand.

On cross-appeal, Hock appeals from an order granting attorney fees to Sahni, O’Leary, EMS and TSH pursuant to KRS 271B.7-400(4). Hock argues: (1) attorney fees were only available on the derivative claims and not on the direct claims; (2) her prevailing derivative claim is a complete bar to the recovery of attorney fees; (3) attorney fees were not available because her suit would survive CR2 11 scrutiny; and (4) KRS 271B.7-400(4) is unconstitutional. We reverse and remand the award of attorney fees.

401
JENT (JAMES L.) VS. KENTUCKY UTILITIES COMPANY, ET AL
OPINION AFFIRMING
BUCKINGHAM (PRESIDING JUDGE)(SENIOR STATUS JUDGE)
ACREE (CONCURS) AND MOORE (CONCURS)
2008-CA-001565-MR
2008-CA-001566-MR 2008-CA-001567-MR
TO BE PUBLISHED
HARDIN

Appellants, James L. Jent and Mary K. Jent, CDH Preserve, LLC, and Violet Monroe, appeal from an interlocutory judgment of the Hardin Circuit Court in favor of Kentucky Utilities Company on its petition to condemn the Appellants’ properties. Appellants argue that: (1) Kentucky Utilities was required to obtain a final non-appealable certificate of public convenience and necessity before initiating condemnation proceedings, but it failed to do so; (2) the facts of this case do not support a public need for the construction of transmission
lines; (3) the circuit court incorrectly applied the “reasonable assurance” test; and (4) the circuit court erred by failing to find that Kentucky Utilities acted arbitrarily or in bad faith in the condemnation of Appellants’ properties. We affirm.

402 – LIENS/MORTGAGES/PRIORITY
WELLS FARGO FINANCIAL KENTUCKY, INC. VS. THOMER (JOHN ROBERT), ET AL.
OPINION REVERSING AND REMANDING
LAMBERT (PRESIDING JUDGE)(SENIOR STATUS JUDGE)
NICKELL (CONCURS) AND KELLER (CONCURS IN RESULT ONLY)
2008-CA-001837-MR
TO BE PUBLISHED
CAMPBELL

This appeal pits competing lien priority claimants against one another. Appellant, Wells Fargo Financial Kentucky, Inc. (Wells Fargo), claims that its mortgage is superior by virtue of the future advance clause of the mortgage, while Appellees, John Robert Thomer and Dawn Alexis Thomer (Thomers), claim that their judgment lien achieved superior status when a new promissory note and mortgage were executed in favor of Wells Fargo. Our resolution of this case will depend upon the language of the relevant instruments, statutory and decisional law, and the Restatement (Third) of Property. * * *

We acknowledge discomfort in allowing Wells Fargo to recover sums
in excess of the balance of its loan after the date the Thomers’ judgment lien was filed. The record reveals that upon the 2002 consolidation of the loans, there was a balance of $141,000 and presumably the balance was somewhat greater when the judgment lien was recorded. A proper examination of the real estate records by Wells Fargo would have revealed that the judgment lien was filed some ten months prior to the 2002 transaction. The Restatement (Third) of Property view discussed hereinabove recognizes that in certain circumstances a junior lienor may be prejudiced by the holder of the senior mortgage, and the Thomers appear to have been prejudiced by the increase of the indebtedness from $141,000 to $158,000. However, the Thomers cannot satisfy the second prong of the Restatement view. They cannot show that the extension of additional credit was not within the scope of the future advance clause of the original mortgage. See KRS 382.520. In fact, the original mortgage provides that the maximum indebtedness secured by the mortgage could increase to the sum of $200,000.

The trial court decided this case by summary judgment. It determined that the requirements of Kentucky Rules of Civil Procedure (CR) 56.03 were met and applied Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky. 1991). It properly recognized that issues of fact should not be decided and that the evidence of record should be examined to discover whether there were genuine issues of fact. We agree with the trial court that this was a summary judgment case. As shown hereinabove, however, we disagree as to which party should have prevailed.

For the foregoing reasons, the judgment of the Campbell Circuit Court is reversed and this cause remanded for further consistent proceedings.

413 – FAMILY LAW, DVO
WOOLDRIDGE (JOHN MATTHEW) VS. ZIMMERER (KATHRYN L.)
OPINION VACATING AND REMANDING
CLAYTON (PRESIDING JUDGE)
TAYLOR (CONCURS) AND THOMPSON (CONCURS)
2009-CA-001786-ME
TO BE PUBLISHED
JEFFERSON

John Matthew Wooldridge appeals from the September 8, 2009 order of the Jefferson Family Court extending a domestic violence order (DVO) for an additional three years. We vacate and remand for additional proceedings consistent with this opinion.

TORT REPORT OF CIVIL AND INSURANCE DECISIONS:

403
NAPIER (ALMARIA) VS. ESTATE OF KENNETH MIRACLE
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
WINE (CONCURS) AND HARRIS (CONCURS)(SENIOR STATUS JUDGE)
2008-CA-002221-MR
NOT TO BE PUBLISHEDLAUREL

Almaria Napier appeals from a jury verdict entered by the Laurel Circuit Court in an automobile negligence case and an order denying her motion for a new trial. Napier argues she was entitled to a new trial because the jury awarded her zero dollars for pain and suffering despite awarding her damages for past medical expenses. After reviewing the record and briefs, we affirm.

Please note: I reserve the right to delete comments that are inappropriate, offensive or off-topic.

Leave a Reply

Your email address will not be published.