COA 2011 Minutes for March 18, 2011 — Nos. 224 – 262

COA 2011 Minutes for March 18, 2011 –  Nos. 224 – 262

  • 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:  27 decisions this week
  • Published Decisions:2 published (266; 267)
PUBLISHED DECISIONS (with link to full text at AOC):

266. Criminal Law; search and seizure, evidence denied
EASLEY (WILLIAM) VS. COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
ACREE (CONCURS) AND THOMPSON (CONCURS)
2009-CA-000716-MR
TO BE PUBLISHED
GRAVES

LAMBERT, JUDGE: William Easley appeals from the judgment of the Graves Circuit Court convicting him of eighteen counts of knowingly exploiting an adult (over $300.00) and two counts of knowingly exploiting an adult (under $300.00) and sentencing him to a total of ten years’ imprisonment. After careful review, we affirm the judgment.

267. CIVIL PROCEDURE; DISMISSAL FOR LACK OF PROSECUTION AND MOTION TO SET IT ASIDE.
HONEYCUTT (LARRY) VS. NORFOLK SOUTHERN RAILWAY COMPANY
OPINION AFFIRMING
MOORE (PRESIDING JUDGE)
TAYLOR (CONCURS) AND THOMPSON (DISSENTS AND FILES SEPARATE OPINION)
2009-CA-000895-MR
TO BE PUBLISHED
PULASKI

MOORE, JUDGE: Larry Honeycutt appeals an order of the Pulaski Circuit Court dismissing his complaint pursuant to Kentucky Civil Rule (CR) 77.02(2) for claims arising under the Federal Liabilities Act, 45 U.S.C. §51, et seq.; the Locomotive Inspection Act, 49 U.S.C. §20707, et seq.; and the Federal Rail Safety Act of 1970, 49 U.S.C. §20101, et seq. The complaint alleged that while in Norfolk Southern Railway Company’s employ, Honeycutt sustained injuries to his neck, shoulder,
and back.    The issue presented is whether counsel’s failure to notify the circuit court that he had changed his mailing address and, as a result, his failure to receive the court’s sua sponte notice to show cause why the action should not be dismissed for lack of prosecution pursuant to CR 77.02(2), warranted that the order dismissing be set aside pursuant to CR 60.02. Concluding that the trial court did not abuse its discretion in dismissing Honeycutt’s complaint, we affirm.

The "Tort Report" – Tort, Insurance, Procedure Cases – Nonpublished


269. Civil Procedure, Directed Verdict
MORGAN (MICHELE), ET AL. VS. LANHAM (J. DANIEL), ET AL.

OPINION AFFIRMING IN PART, REVERSING IN PART, DISMISSING IN PART, AND REMANDING
MOORE (PRESIDING JUDGE)
STUMBO (CONCURS) AND KELLER (CONCURS IN PART AND DISSENTS IN PART BY SEPARATE OPINION)
2009-CA-001412-MR
2009-CA-001588-MR
NOT TO BE PUBLISHED
JEFFERSON

MOORE, JUDGE: This is an appeal and cross-appeal from an April 6, 2009 order and judgment and a subsequent July 14, 2009 order denying a motion to alter, amend, or vacate that judgment. This matter, which involves a series of directed verdicts, contractual and statutory interpretations, and evidentiary rulings relating to three limited liability companies, is the sibling lawsuit of Morgan v. Lanham, 2009 WL 2971628 (Ky. App. 2009) (2008-CA-000499-R) (unpublished),1 a marital dissolution action in Jefferson County Family Court between Michele R. Morgan and James Daniel Lanham.

270. Civil Procedure, Setting aside default on an agreed judgment
WINDHAM INVESTMENTS, INC. VS. ESDJ PROPERTIES, LLC.
OPINION AFFIRMING
ISAAC (PRESIDING JUDGE)
LAMBERT (CONCURS) AND MOORE (CONCURS)
2009-CA-001440-MR
NOT TO BE PUBLISHED
JEFFERSON

278.  Torts, Premises Liability, Open and Obvious and Mcintosh Decision; Civil Procedure – Setting aside default judgment.
EMBRY (DANNY L.) VS. MAC'S CONVENIENCE STORES, LLC, ET AL.
OPINION AFFIRMING IN PART, REVERSING IN PART AND REMANDING
ISAAC (PRESIDING JUDGE)
LAMBERT (CONCURS) AND MOORE (CONCURS)
2009-CA-002324-MR
NOT TO BE PUBLISHED
JEFFERSON

Also after briefing was completed in this appeal, the Kentucky
Supreme Court rendered its opinion in Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010), which modified the “open and obvious” doctrine of premises liability.    In Kentucky River, the Kentucky Supreme Court adopted the position of the Restatement (Second) of Torts with respect to “open and obvious conditions,” which states:

A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.

Kentucky River, 319 S.W.3d at 389 quoting Restatement (Second) of Torts § 343A(1) (1965)(emphasis added).
The Supreme Court provided the following directions to the trial courts to assist them in implementing the modified standard:
The lower courts should not merely label a danger as “obvious” and then deny recovery. Rather, they must ask whether the land possessor could reasonably foresee that an invitee would be injured by the danger. If the land possessor can foresee the injury, but nevertheless fails to take reasonable precautions to prevent the injury, he can be held liable.
Id. at 392.
Recognizing the pertinence of Kentucky River to his case, Embry filed a notice of supplemental authority with this Court which we treated as a motion to supplement authority and subsequently granted. The circuit court, however, never had the opportunity to consider the facts of this case in light of the modified standard. Nor did counsel for the parties have the opportunity to present evidence and arguments in light of the modified standard. “Since this is an appellate court, our function is to review possible errors made by the trial court. If such court has had no opportunity to rule on a question, there is no alleged error before us to review.” Commonwealth, Department of Highways v. Williams, 317 S.W.2d 482, 484 (Ky. 1958). “[T]he trial court . . . is in the best position to consider any
additional arguments presented to it on remand. . . . .” Brown v. Louisville Jefferson County Redevelopment Authority, Inc., 310 S.W.3d 221, 225 -226 (Ky.App. 2010). Therefore, we remand this case to the trial court to consider what effect, if any, the holding in Kentucky River and the presentation of evidence and arguments by counsel may have on its grant of summary judgment to the appellees.
Conclusion The order setting aside the default judgment is therefore affirmed.
The orders granting summary judgment to the appellees are hereby reversed and the matter is remanded for further consideration in accordance with this opinion.

282. Civil Procedure – Leave to amend complaint
PERRY (DONALD) VS. NATIONAL CITY BANK , ET AL.
OPINION AFFIRMING
MOORE (PRESIDING JUDGE)
WINE (CONCURS) AND TAYLOR (CONCURS)
2010-CA-000480-MR
NOT TO BE PUBLISHED
JEFFERSON

284. Civil Procedure – Dismissed appeal by defendant who lost motion for summary judgement hoping for an exception to the rule since claim not dismissed
HYDEN-LESLIE WATER DISTRICT VS. HOSKINS (JESSE), ET AL.
OPINION AND ORDER DISMISSING
ISAAC (PRESIDING JUDGE)
DIXON (CONCURS) AND MOORE (CONCURS)
2010-CA-000599-MR
NOT TO BE PUBLISHED
LESLIE

285.  Appeal permitted on qualified immunity cases at summary judgment
CARL (TERRY) VS. DIXSON (JERRY)
OPINION REVERSING AND REMANDING
VANMETER (PRESIDING JUDGE)
WINE (CONCURS) AND SHAKE (CONCURS)
2010-CA-000676-MR
NOT TO BE PUBLISHED
KENTON

Carl argues that the trial court erred by denying him qualified official immunity from Dixon’s claim that Carl failed to enforce a prisoner classification system. We agree.

Generally, an order denying a motion for summary judgment is not a final order, and therefore is not appealable. See Battoe v. Beyer, 285 S.W.2d 172 (Ky. 1955) (citations omitted). For an interlocutory order to be appealable, it “must ‘conclusively determine the disputed question,’ and that question must involve a ‘claim of right separable from, and collateral to, rights asserted in the action.’” Mitchell v. Forsyth, 472 U.S. 511, 527, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985) (internal citations omitted). A trial court’s “denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable ‘final decision’ . . . notwithstanding the absence of a final judgment.” Id. at 530, 105 S.Ct. at 2817 (adopted by Breathitt County Bd. of Educ. v. Prater, 292 S.W.3d 883, 886-87 (Ky. 2009)). Thus, in this instance, if Carl’s argument that the trial court erred by denying him qualified official immunity turns on a question of law, rather than fact, this court has jurisdiction to review his appeal.

289.  Workers Comp.
LOUISVILLE METRO GOVERNMENT VS. COLLINS (LARRY D.), ET AL.
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
COMBS (CONCURS) AND THOMPSON (CONCURS)
2010-CA-002041-WC
NOT TO BE PUBLISHED
WORKERS' COMP

 

 

 

 

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