COA 2010 Minutes July 2, 2010 (Nos. 635 – 636) (plus the “Tort Report” of decisions)

COA 2010 Minutes July 2,
2010 (Nos. 635 – 636)

  • Above link to minutes is full text of minutes with link to full
    text
    of each decision.
  • Total number of decisions:  22
  • Published Decisions: 4 (636; 638; 650; 653)

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

636. EMPLOYMENT LAW; NONCOMPETE; GOODWILL DAMAGES
CLINE (BRENDA), ET AL. VS. SPECTRUM CARE ACADEMY, INC.
OPINION REVERSING AND REMANDING
NICKELL (PRESIDING JUDGE)
STUMBO (CONCURS) AND WHITE (CONCURS)
2008-CA-002329-MR
2008-CA-002330-MR
TO BE PUBLISHED
ADAIR

THOMPSON, JUDGE: KopyKat, Inc. and Daniel Burton appeal the judgment of the Boyle Circuit Court following a jury verdict awarding $55,203 in damages to Boyle Office Supply, Inc. For the reasons stated herein, we affirm. * * *

The goodwill of a business is simply the expectation that customers will return because of the reputation of the business and has a specific pecuniary value. Clark v. Clark, 782 S.W.2d 56, 59 (Ky.App. 1990). The “logical measure” of damages for injury to the reputation and good will of a corporate going business is the diminution in its value. Duo-Therm Division, Motor Wheel Corp. v. Sheergrain, Inc., 504 S.W.2d 689, 693 (Ky. 1973). There are many factors involved with valuing goodwill, including the location of a business, its name recognition, its business reputation, and many other business-related factors. Gaskill v. Robbins, 282 S.W.3d 306, 314 (Ky. 2009). These factors, ultimately, contribute to the anticipated future profits of the business. Id. Finally, a trial court can permit an award for goodwill and reputation damages only when there is reasonable evidence to support a monetary value. Id. at 315.

While KopyKat contends that Boyle’s future damages award was not supported by the evidence, Boyle presented testimonial and documentary evidence, which KopyKat did not object to or refute. Although KopyKat disagrees with Boyle’s $50,000 future damages award, the jury heard evidence regarding the amount of future damages and believed Boyle’s evidence. Therefore, we cannot reverse the jury’s finding because the jury, not an appellate court, is in the best position to weigh the evidence and determine the credibility of the witnesses. Investors Heritage Life Ins. Co. v. Colson, 717 S.W.2d 840, 842 (Ky.App. 1986)

638. EASEMENTS.
DUKES (JIMMY DALE), ET AL. VS. LINK (WILLIAM COREY)
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
NICKELL (CONCURS) AND BUCKINGHAM (SENIOR STATUS JUDGE)(CONCURS)
2009-CA-000183-MR
TO BE PUBLISHED
LOGAN

THOMPSON, JUDGE: This is an appeal from the Logan Circuit Court which found that an express easement existed over the property owned by Jimmy Dale and Delores Dukes in favor of the adjoining property owned by William Corey Link. The Dukes contend that because the easement was not contained in their chain of title, the easement was extinguished or, alternatively, that it had been abandoned by Link and they claim ownership to the property by adverse possession.

We agree with the trial court that an easement created by a recorded deed of the dominant tenement is not extinguished by its failure to be mentioned in the deed to a subsequent purchaser of the real property under the easement. We further conclude that the trial court did not abuse its discretion when it found that the easement had not been abandoned and denied the Dukes’ claim of adverse possession. Therefore, we affirm.

650. EMPLOYMENT.  GENDER AND RACIAL DISCRIMINATION. RETALIATION.
FLOCK (JOSEPH E.) VS. BROWN-FORMAN CORPORATION
OPINION AFFIRMING
WINE (PRESIDING JUDGE)
ACREE (CONCURS) AND COMBS (DISSENTS IN PART BY SEPARATE OPINION)
2009-CA-001184-MR
TO BE PUBLISHED
JEFFERSON

WINE, JUDGE: Joseph E. Flock appeals from a summary judgment by the Jefferson Circuit Court which dismissed his employment discrimination and retaliation claims against Brown-Forman Corporation (“Brown-Forman”). He argues that he presented sufficient evidence to raise genuine issues of material fact that Brown-Forman discriminated against him based on his age and gender, and that it retaliated against him after he filed these claims. We disagree with the trial court that Flock failed to establish a prima facie case on his age discrimination claim. However, we agree with the trial court that Flock failed to present sufficient evidence to rebut Brown-Forman’s stated reasons for demoting him. We further agree with the trial court that Flock failed to establish prima facie cases for his gender discrimination and retaliation claims. Hence, we affirm the trial court’s summary judgment dismissing Flock’s claims.
653
RUNNER (BETTY G.) VS. COM. OF KENTUCKY AND KY UNEMPLOYMENT COMM. ET AL
OPINION AFFIRMING
DIXON (PRESIDING JUDGE)
NICKELL (CONCURS) AND LAMBERT (CONCURS)
2009-CA-001245-MR
TO BE PUBLISHED
JEFFERSON

DIXON, JUDGE: Appellant, Betty Runner, appeals pro se from a judgment of the Jefferson Circuit Court upholding the Kentucky Unemployment Insurance Commission’s decision to deny her claim for unemployment insurance benefits. Finding no error, we affirm. * * *

Substantial evidence in the record supports the finding that Runner’s termination was for misconduct in connection with her work. She was aware of her responsibilities, was capable of performing her duties, and had been warned of the consequences of her actions. Contrary to Runner’s assertions, we are of the opinion that her actions and behavior did not represent mere inefficiency or unsatisfactory conduct, but rather a refusal to perform her work as ordered over a lengthy period of time. Such clearly satisfies the common-law test for misconduct. Douthitt, 676 S.W.2d at 474.

As the Commission’s decision was based upon substantial evidence, we are not free to substitute our judgment for that of the administrative agency. McManus v. Kentucky Retirement Systems, 124 S.W.3d 454, 458 (Ky. App. 2003) (citing Johnson v. Galen Health Care, Inc., 39 S.W.3d 828, 832 (Ky. App. 2001). Accordingly, we hold that the Commission did not misapply the law when it found that Runner had been discharged for misconduct and, as such, the trial court properly affirmed the Commission’s decision.

The decision of the Jefferson Circuit Court is affirmed.

TORT REPORT – CIVIL, TORTS, INSURANCE CASES. 
IN ADDITION TO
ANY TORT DECISIONS ABOVE THAT ARE PUBLISHED, THE FOLLOWING NPO
DECISIONS ARE ADDED:

645. INSURANCE.  UNINSURED MOTORIST BENEFITS. POLICY DEFINITION OF UNINSURED AUTOMOBILE EXCLUDED ATV
PUCKETT (KYLE) VS. GEICO INDEMNITY COMPANY
OPINION AFFIRMING
WINE (PRESIDING JUDGE)
MOORE (CONCURS) AND NICKELL (CONCURS)
2009-CA-000594-MR
NOT TO BE PUBLISHED
JEFFERSON

WINE, JUDGE: Kyle Puckett appeals from a summary judgment entered by the Jefferson Circuit Court finding that an all-terrain vehicle (“ATV”) was not an “uninsured auto” within the meaning of GEICO’s uninsured motorist (“UM”) policy. Finding that the trial court properly interpreted the policy language at issue, we affirm.

654.  EVIDENCE, AUTHENTICATION OF DOCUMENTS.
JONES (WANDA)  VS. BABBAGE (ROBERT)
OPINION AFFIRMING
CAPERTON (PRESIDING JUDGE)
LAMBERT (CONCURS) AND NICKELL (CONCURS)
2009-CA-001277-MR
NOT TO BE PUBLISHED
CHRISTIAN

CAPERTON, JUDGE: The Appellant, Wanda Jones, appeals the June 8, 2009, trial order and judgment of the Christian Circuit Court, dismissing with prejudice her action to recover real estate from the Appellee, Robert Babbage, following a jury trial. On appeal, Jones asserts that the trial court improperly admitted into evidence documentation which was not properly authenticated and was hearsay, and further, that the court failed to properly instruct the jury on the law of the case. Following a review of the record, the arguments of the parties, and the applicable law, we affirm. * * *

Jones raises two arguments on appeal. First, Jones asserts that the trial court erred in allowing the document described as a “memo” to be admitted into evidence, arguing that it was not properly authenticated, and was hearsay. Jones asserts that pursuant to KRE 901, the memo at issue was not properly authenticated, as the only testimony concerning the memo came from Lynch, who admitted that the document was not in his handwriting, that he did not know whose handwriting it was, and that he did not know how the document came to be in his file. Further, Lynch stated that the document itself did not even explain the transaction as he understood it to have occurred. Accordingly, Jones argues that Babbage failed to present evidence supporting a finding that the memo was a memorialization of the agreement between Jones and Babbage.

In response, Babbage argues that the memo was properly authenticated, and was properly introduced as a relevant business record from Lynch’s file. Alternatively, Babbage asserts that even if the court’s admission of the memo was in error, that error is harmless and insufficient grounds for reversal. We cannot agree.

In reviewing this issue, we note that a trial court’s finding of authentication is reviewed for abuse of discretion. See Johnson v. Commonwealth, 134 S.W.3d 563 (Ky. 2004). The test for abuse of discretion is whether the trial court’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575 (Ky. 2000). Our law is clear that one who produces evidence has the burden to make a prima facie showing of authentication to the trial court. S.D.O. v. Commonwealth, 255 S.W.3d 517 (Ky.App. 2008). This identification process requires a demonstration of the integrity of the evidence, a showing that the item at issue is what its proponent claims it to be. See KRE 901 and Rogers v. Commonwealth, 992 S.W.2d 183 (Ky. 1993).

Simply put, we cannot find that Babbage met that burden in this instance. The only evidence at all about the memo came from Lynch, who was unaware as to the author of the document, the time it was written, or how it came to be in his file. Further, Lynch himself stated that the document did not accurately describe his understanding of the transaction at issue. These facts, when considered cumulatively, are insufficient to establish a prima facie showing of authentication pursuant to KRE 901.

Jones also asserts that the memo should have been excluded by the court on hearsay grounds. Jones argues that the document was an out of court writing submitted by Babbage to prove the terms of the transaction between Edward Babbage and the Jones. Jones further argues that the document meets none of the exceptions to the hearsay rule, and that accordingly, it should not have been admitted into evidence.

In response, Babbage argues that the memo was not hearsay, as it was not introduced to prove the truth of its terms, but rather to disclose a relevant business record from Lynch’s file. We disagree. Clearly, the purpose of introducing the record was to support Babbage’s version of what occurred between the parties. Accordingly, it was hearsay pursuant to KRE 801(c), and as it did not meet any applicable exceptions, and should have been excluded.
As noted, Babbage argues that the admission of the evidence, even if in error, was harmless. We note that in Matthews v. Commonwealth, 163 S.W.3d 11, 20 (Ky. 2005), our Kentucky Supreme Court defined the standard for determination of harmless error by stating, “If upon consideration of the whole case this court does not believe there is a substantial possibility that the result would have been any different, the irregularity will be held non-prejudicial.” In the matter sub judice, the memo was the only documentary evidence which directly contradicted their version of the negotiations and agreement between themselves and Edward Babbage.

Babbage argues that the alleged error in admission was harmless, as the central issue in the case was whether or not the deed was delivered to Jones, and that the admission of the memorandum did not serve to prove or disprove this issue. We agree. Our review of the memo indicates that it specifically states, “E.W. Babbage is to hold mortgage on propertys (sic) located on corner of 2nd and Lewis only until all money or (sic) paid.” It is true that Jones herself never received the deed and the intent of Babbage, in allowing Lynch to retain the deed, is certainly of importance. Nevertheless, holding a mortgage is not retaining a deed. The memo speaks to Babbage’s purported intent concerning holding of a mortgage, and as such, is of little importance to the issue of dispute in the matter sub judice, i.e. delivery of a deed. We believe that the memo was of little or no influence on the jury’s ultimate decision. Accordingly, we find that admission of the memo was harmless error for the aforementioned reasons. Therefore, we affirm.

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