COA 2011 Minutes for Feb. 4 , 2011 (Nos. 97 – 118)

http://opinions.kycourts.net/coa/2009-CA-002239.pdfCOA 2011 Minutes for Feb. 4 , 2011       (Nos. 97 – 118) 

  • Click on the above link for the full text of minutes with link to full text of each decision.
  • Link to AOC Page with current minutes and archived minutes links
  • Total number of decisions:  22
  • Published Decisions: 6 (97; 107; 111; 113; 115; 117)
PUBLISHED DECISIONS (with link to full text at AOC):
97.  SUMMARY JUDGMENT.  FEN PHEN CASES.
CUNNINGHAM (SHIRLEY A), ET AL.
VS.
ABBOTT (MILDRED), ET AL.
OPINION AFFIRMING IN PART, VACATING IN PART, REVERSING IN PART AND REMANDING
NICKELL (PRESIDING JUDGE)
STUMBO (CONCURS) AND WINE (CONCURS)
2007-CA-001971-MR
2007-CA-001981-MR
2007-CA-002173-MR
2007-CA-002174-MR
TO BE PUBLISHED
BOONE
This appeal flows from the mediated settlement of 431 claims against American Home Products (AHP), the manufacturer of fenfluramine and phentermine, commonly referred to as “Fen-Phen,” a drug combination used for weight loss that was ultimately removed from the market in the 1990’s after numerous users suffered heart damage. As a result, class action lawsuits were filed across the nation. At least one such action was filed in Kentucky, Darla S. Guard, et al. (or Jonetta Moore, et al.) vs. American Home Products Company, Inc. et al., Boone Circuit Court Case No. 98-CI-795.
The 431 plaintiffs in the Guard action were represented by one of three attorneys, Shirley A. Cunningham, Jr., William J. Gallion, or Melbourne Mills, Jr. (collectively referred to as GMC).2    Their representation was based upon contingency fee agreements allowing reasonable attorney fees not to exceed between thirty and thirty-three and one-third percent of the recovery. A fourth attorney, Stanley M. Chesley, negotiated a $200,000,000.00 settlement on behalf of the class in May of 2001. Chesley did not have a contingency fee agreement with any of the 431 plaintiffs, but he did have a fee-splitting agreement with GMC whereby he was to receive twenty-one percent of the gross fees and GMC was to  receive seventy-four percent of the gross fees. A fifth attorney, Richard D. Lawrence, received the remaining five percent under the fee-splitting agreement.

The arguments presented on appeal by GMC are as follows: (1) Was
the independent action filed by Abbott an impermissible collateral attack on orders entered by Bamberger in the Guard action? 2) Did the trial court err in denying GMC’s motion for summary judgment? 3) Did the trial court err in granting partial summary judgment to Abbott in light of disputed material facts?

The arguments presented by Abbott on cross-appeal are as follows: (1) Did the trial court err in denying Abbott’s motion to transfer venue from Boone County back to Fayette County for purposes of trial? (2) Did the trial court err in denying Abbott a partial summary judgment regarding Chesley? (3) Should the trial court have found Mills lacked standing to appeal dismissal of KFHL’s counterclaim and imposition of a constructive trust on its funds? (4) Whether the trial court erred in awarding Mills unsubstantiated expenses?

107
PARKER (LEROY)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
THOMPSON (CONCURS IN RESULT ONLY) AND NICKELL (CONCURS AND FILES SEPARATE OPINION)
2009-CA-001701-MR
TO BE PUBLISHED
MCCRACKEN

CLAYTON, JUDGE: This is an appeal from a decision of the McCracken Circuit Court finding that the appellant, Leroy Parker, was not entitled to a reimbursement of restitution he paid in response to a restitution order which our Court directed the trial court to void.

111.  FAMILY LAW. MAINTENANCE.
AGE (STEVEN MICHAEL)
VS.
AGE (JANET LOUISE)
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
NICKELL (CONCURS) AND THOMPSON (CONCURS AND FILES SEPARATE OPINION)
2009-CA-001982-MR
2009-CA-002173-MR
TO BE PUBLISHED
OLDHAM

CLAYTON, JUDGE: This is an appeal and cross-appeal from orders of the Oldham Circuit Court. The Oldham Circuit Court denied the Kentucky Rules of Civil Procedure (CR) 60.02 motion of Steven Michael Age, the appellant and cross-appellee, to set aside the judgment of divorce. Moreover, Janet Louise Age (now Reid), appellee/cross-appellant, contends the court committed reversible error and abused its discretion because its award of maintenance is inadequate. Furthermore, Reid maintains that the court did not make findings and abused its discretion when it ordered her to pay additional attorney fees to her original attorney, Michael T. Pate, also a cross-appellee, and later when it denied reimbursement of these attorney fees by Age to her. After careful review, we affirm.

113.  TORTS. CAUSE OF ACTION – DEFAMATION.
SMITH (JOANNE)
VS.
MARTIN (ODELL)
AFFIRMING IN PART, VACATING IN PART, AND REMANDING
TAYLOR (PRESIDING JUDGE)
STUMBO (CONCURS) AND SHAKE (CONCURS)
2009-CA-002226-MR
TO BE PUBLISHED
HART

TAYLOR, CHIEF JUDGE: Joanne Smith brings this appeal from a November 17, 2009, summary judgment dismissing Smith’s defamation claims against Odell Martin. We affirm in part, vacate in part, and remand.

To establish a claim for defamation, the following elements must exist: “[1.] defamatory language, [2.] about the plaintiff, [3.] which is published, and [4.] which causes injury to reputation.” Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781,793 (Ky. 2004)(footnote omitted). A claim of defamation may be defeated by establishing the truth of the matter asserted which is an absolute defense. Additionally, a defamation claim may be defeated by assertion of a “privilege.” A privilege is recognized as a defense to a defamation claim; the defense may be either absolute or qualified. An absolute privilege affords a defendant a complete defense to a claim of defamation; whereas, a qualified privilege only affords a defendant a conditional defense to a claim of defamation. Both privileges are pivotal to the resolution of this appeal.

n sum, we hold that members of secondary legislative bodies are entitled to an absolute privilege for statements made during official meetings of those bodies under KRS 83A.060(15). At the Horse Cave city council meeting, Martin was performing legislative duties; thus, Martin’s statements directed to Smith at the meeting are absolutely privileged. As such, the circuit court properly rendered summary judgment dismissing Smith’s defamation claim based upon these statements. We also conclude that KRS 411.060 provides a qualified privilege for the publication of a report recounting events at a city council meeting. Martin’s publication of the Horse Cave Newsletter recounting statements made by Martin to Smith comes within the ambit of KRS 411.060. We are, nevertheless, unable to determine whether the qualified privilege operates as a defense to Smith’s defamation claim in this case. Under KRS 411.060, the determination of whether the Horse Cave Newsletter’s report was fair and accurate or was maliciously made presents a factual issue, which was not addressed by the circuit court. Thus, we remand Smith’s defamation claim as to the publication of the Horse Cave Newsletter and affirm the dismissal of her defamation claim as to Martin’s statements at the city council meeting.
We view Smith’s remaining contentions of error to be without merit or moot.
For the foregoing reasons, the summary judgment of the Hart Circuit Court is affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.

115.  TRUSTEES,  COMPENSATION OF TESTAMENTARY
JARVIS (KATHERINE COMBS), ET AL.
VS.
NATIONAL CITY, ET AL.
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
CLAYTON (CONCURS) AND THOMPSON (DISSENTS AND FILES SEPARATE OPINION)
2009-CA-002258-MR
TO BE PUBLISHED
JEFFERSON

NICKELL, JUDGE: Katherine Combs Jarvis and Hugh J. Caperton appeal the award of summary judgment to National City and PNC Bank National Association. The narrow question before the Court is whether the repeal of KRS1 386.180 in 2008, eliminating limits on the compensation charged by testamentary trustees, is effective with respect to trusts which predate the repealed statute. The banks argue the repeal of the statute means they are now free to charge reasonable commissions on all testamentary trusts, just as they do on inter vivos trusts. Jarvis and Caperton, beneficiaries of trusts2 established years ago, argue the commission ceilings expressed in KRS 386.180 at the time the trusts were created remain in effect.
In a well-reasoned and thorough opinion and order, which we adopt as our own and set forth in full, the trial court granted summary judgment to the banks. We affirm.

117.  PROBATE; WILL CONSTRUCTION.
MCGOWAN (SHARON), ET AL.
VS.
BOGLE (EARL), ET AL.
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
CAPERTON (CONCURS) AND ISAAC (CONCURS)
2010-CA-000118-MR
TO BE PUBLISHED
PULASKI

THOMPSON, JUDGE: This is a will construction dispute in which the sole question is whether the anti-lapse statutes require that the children of the predeceased beneficiaries inherit under the will. The Pulaski Circuit Court found that that the anti-lapse statutes were not applicable because the will unambiguously expressed the intention that the beneficiaries survive the testator in order to inherit under the will. We agree and affirm.

Nonpublished tort and civil decisions of note:

99
GRIGSBY (ELIZA)
VS.
HAZARD NURSING HOME, INC.
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
CAPERTON(CONCURS) AND VANMETER (CONCURS)
2008-CA-002373-MR
NOT TO BE PUBLISHED
PERRY

THOMPSON, JUDGE: Eliza Grigsby, administratrix of the estate of Ibbie Combs, filed this action against Hazard Nursing Home (HNH), alleging that HNH’s negligence caused Ibbie Combs’s death. A jury found that HNH did not breach any duties owed to Combs and a judgment was entered dismissing the estate’s claims.
On appeal, the following issues are presented: (1) whether the trial court erred when it denied the estate’s challenges for cause as to four jurors, which caused the estate to use all its preemptory challenges; (2) whether the trial court erred when it did not allow the estate to introduce the testimony of a social worker and to impeach a defense witness with the social worker’s report; and (3) whether the trial court erred when it refused the estate’s request to present evidence regarding prior falls sustained by Ibbie Combs.

109.  EXPERT DISCLOSURES.
SOWDERS (PAMELA), ET AL.
VS.
CATRON (CHARLES P.), ET AL.
OPINION AFFIRMING
CAPERTON (PRESIDING JUDGE)
THOMPSON (CONCURS) AND LAMBERT (CONCURS)
2009-CA-001861-MR
NOT TO BE PUBLISHED
WHITLEY

CAPERTON, JUDGE: The Appellants, Pamela Sowders, Michael Bradley Sowders, and Michael Glen Sowders, appeal the April 24, 2009, judgment of the Whitley Circuit Court in favor of the Appellees, Charles P. Catron, M.D. and Charles P. Catron, P.S.C., in accordance with a jury verdict. On appeal, Appellants assert that the court should have granted a mistrial on the basis of undisclosed expert testimony provided at trial. Having reviewed the record, the arguments of the parties, and the applicable law, we affirm.

114.  ARBITRATION WAIVED
GREEN TREE SERVICING, LLC.F/K/A CONSECO FINANCE
VS.
PHELPS (PAM), ET AL.
OPINION AFFIRMING
SHAKE (PRESIDING JUDGE)
VANMETER (CONCURS) AND WINE (CONCURS)
2009-CA-002239-MR
NOT TO BE PUBLISHED
PULASKI

116.  PREMISES LIABILITY.  EXPERTS.  BUILDING CODES.
HOUSE OF IMPORTS
VS.
WRIGHT (BENJAMIN)
OPINION REVERSING AND REMANDING
TAYLOR (PRESIDING JUDGE)
DIXON (CONCURS) AND ISAAC (CONCURS)
2009-CA-002359-MR
NOT TO BE PUBLISHED
JEFFERSON

To establish an actionable negligence claim, a plaintiff must establish the existence of a duty, breach of that duty, causation, and damages. Helton v. Montgomery, 595 S.W.2d 257 (Ky. 1980).2    A legal duty may be found in the common law, in a statute, or in an ordinance. Lewis v. B & R Corp., 56 S.W.3d 432 (Ky. App. 2001). A negligence claim premised upon a statute or ordinance is referred to as a “negligence per se claim.” Id. In a negligence per se claim, a “statutory standard of care [or duty] is substituted for the common law standard.” Lewis v. B & R Corp., 56 S.W.3d 432, 438 (Ky. App. 2001). And, the applicability of a statutory standard of care or duty squarely presents a question of law for the court. If the trial court determines a duty contained in a statute, regulation, or ordinance is pertinent, the court must then instruct the jury upon such statutory duty. However, a statutory duty is not evidence, and facts revolving around violations of a statutory duty may not be introduced into evidence absent a
2 There is no dispute in this case that Wright was a business invitee on the business premises of House of Imports, Inc., d/b/a In Style, for which a duty of care was owed to Wright. Lanier v. Wal-Mart Stores, Inc., 99 S.W.3d 431 (Ky. 2003).
-3-
concomitant jury instruction setting forth such statutory duty. The case of O’Connor & Raque Co. v. Bill, 474 S.W.2d 344 (Ky. 1971), aptly sets forth the law on this issue.
In O’Connor, appellee sustained a fall while shopping at appellant’s business establishment. Id. During trial, an expert witness testified that the entrance to appellant’s business was unsafe and violated the building code. Id. A disagreement between the parties ensued as to which version (1950 or 1959) of the building code was applicable. Id. The Supreme Court noted that “the trial court did not resolve the question [of which code was applicable], nor were any of the code requirements recited in the [jury] instructions included within the . . . company’s duties.” Id. at 346. The Court held that the trial court erred by allowing introduction of evidence concerning violations of the building code without a concomitant jury instruction informing the jury of appellant’s duty under the applicable code provisions. The Court explained its holding:
[T]hat after the authenticity and applicability of an ordinance have been established it is within the discretion of the trial court to determine whether it shall be read to the jury. Generally speaking, however, it seems to us that an ordinance or regulation creating rights and duties is no different from a statute and should be treated in the same way. For example, statutes regulating traffic on the highways are not read to the jury in accident cases. To the extent that they are applicable their substance is incorporated in the instructions covering the law of the case. So it should have been here. The building code or codes from which portions were read to the jury either did or did not place certain duties on the defendant company which were applicable at the time of the accident. If they did impose such duties, they either
called for a directed verdict against the company on the issue of its negligence (as requested by Bill) or they should have been submitted to the jury under an appropriate instruction on proximate cause. If they did not impose such duties, or if as a matter of law the company's failure to comply was not a proximate causal factor in the accident, then they were not relevant to the case and should not have been brought to the jury's attention at all. As it is, the jury received the information and was left to decide for itself what, if any, was its relevance and legal effect.
O’Connor, 474 S.W.2d at 346. In this case, Wright’s negligence claim against the House of Imports was submitted to the jury based upon violation of the common-law duty of care. The jury was not instructed upon any statutory or regulatory duty of care owed by House of Imports to Wright despite substantial evidence being introduced regarding the violation of building codes. As in O’Connor, the trial court herein failed to determine the legal question of the applicability of the Building Code and then compounded this error by admitting Schroering’s testimony detailing sundry violations of the building code by House of Imports. See id. These errors resulted in the jury being “left to decide for itself what, if any, was its relevance and legal effect.” See id. at 346.

 

 

 

 

 

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