COA 2011 Minutes for March 4, 2011 — Nos. 202 – 223

COA 2011 Minutes for March 4, 2011 –  Nos. 202 – 223 

  • 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:  21
  • Published Decisions: 5 (202; 203; 204; 205; 216)
PUBLISHED DECISIONS (with link to full text at AOC):

202. TORTS: Summary Judgement dismissing employment claims involving tortious interference and defamation affirmed; Qualified privilege re employment;

HARSTAD (MICHAEL J.) VS. WHITEMAN (RAY), ET AL.
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
VANMETER (CONCURS) AND WINE (CONCURS)
2009-CA-000190-MR
2009-CA-000194-MR
2009-CA-001045-MR
TO BE PUBLISHED
JESSAMINE

ACREE, JUDGE: Appellant, Michael Harstad, brings three appeals from separate Jessamine Circuit Court judgments relating to termination of his employment with appellee Asbury College. The first and second appeals challenge summary judgments for appellees Ray Whiteman, Shelby Thacker, and Verna Lowe on Harstad’s claims of defamation and tortious interference with contractual relations. In the third appeal, Harstad claims reversible trial errors resulted in the jury verdict for Asbury on his breach of contract claim. We have consolidated these cases for the convenience of the Court and, after careful review, we affirm in all cases.

While the procedural history of this case before the circuit court is somewhat complex, only a brief summary is necessary for purposes of this appeal. Harstad’s claims of defamation and intentional interference with his employment contract against Whiteman, Thacker, and Lowe were dismissed by summary judgment. The breach of contract claim against Asbury was the only issue to proceed to trial. Asbury prevailed on this claim, the jury having found that the college did not terminate Harstad without cause under the terms of the faculty handbook. Harstad did not move for a new trial postverdict.

On appeal, Harstad argues that the circuit court improperly granted summary judgment as to his defamation and intentional interference claims. With regard to the trial, Harstad argues that the circuit court improperly excluded evidence that other faculty members were treated differently under similar circumstances, and that additional jury instructions should have been provided.

203. CRIMINAL:  DOUBLE JEOPARDY
BEELER (TIMOTHY QUINN)
VS.
COMMONWEALTH OF KENTUCKY
OPINION VACATING
COMBS (PRESIDING JUDGE)
CLAYTON (CONCURS AND FILES SEPARATE OPINION) AND WINE (CONCURS IN RESULT ONLY AND JOINS IN JUDGE CLAYTONS CONCURRING OPINION)
2009-CA-001133-MR
TO BE PUBLISHED
HARDIN

COMBS, JUDGE:    Timothy Beeler appeals from his conviction in the Hardin Circuit Court of conspiracy to manufacture methamphetamine. After carefully examining the record and the pertinent law, we vacate the conviction.

204.  REAL PROPERTY; ADVERSE POSSESSION
MCCOY (GARY), ET AL.
VS.
THOMPSON (MARQUIETTE), ET AL.
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
DIXON (CONCURS) AND STUMBO (CONCURS)
2009-CA-001585-MR
TO BE PUBLISHED
LAWRENCE

ACREE, JUDGE: The appellants, Gary and Susie McCoy, seek reversal of the Lawrence Circuit Court’s order finding that appellee, Willie Thompson, acquired a twenty-five-acre parcel of land via adverse possession. We affirm.

The existence of the fence and Thompson’s efforts to keep it in good repair coupled with the other uses found by the circuit court support the circuit court’s conclusion. Therefore, its finding of adverse possession was not clearly erroneous and we affirm.

205.  APPEAL OF INTERLOCUTORY ORDERS; NO JURISDICTION
TAX EASE LEIN INVESTMENTS 1, LLC
VS.
BROWN (MARKITA), ET AL.
OPINION AND ORDER DISMISSING
ACREE (PRESIDING JUDGE)
DIXON (CONCURS) AND STUMBO (CONCURS)
2009-CA-001662-MR
TO BE PUBLISHED
LAUREL

ACREE, JUDGE: Tax Ease Lien Investments, LLC (Tax Ease) appeals two Laurel Circuit Court orders; the first order, denominated a “partial summary judgment,” invalidated Tax Ease’s lien as to Markita Brown’s real property, and the second order denied Tax Ease’s “Motion to Alter, Vacate, or Amend” the first. Both orders are interlocutory and this Court lacks jurisdiction to consider them. Therefore, we dismiss the appeal.

First, we note that this court is required to raise a jurisdictional issue on its own motion if the underlying order lacks finality. Huff v. Wood-Mosaic Corp., 454 S.W.2d 705, 706 (Ky. 1970). The orders from which this appeal is taken lack finality. However, the ins and outs of this case create a kind of procedural Gordian knot that we cannot simply hack through, but must unravel. A closer look at the case’s procedure is therefore helpful. We start at the beginning.

216.  BILLBOARD ADVERTISING ACT
HARSTON (JIMMY), ET AL.
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING IN PART AND REVERSING IN PART
NICKELL (PRESIDING JUDGE)
VANMETER (CONCURS) AND SHAKE (CONCURS)
2010-CA-000615-MR
2010-CA-001124-MR
TO BE PUBLISHED
HART

NICKELL, JUDGE: Jimmy Harston and Norman Cottrell appeal an opinion and order granting summary judgment to the Kentucky Transportation Cabinet, Department of Highways (Cabinet) entered on February 16, 2010, by the Hart Circuit Court. The court found Harston and Cottrell in violation of Kentucky’s Billboard Advertising Act2 by maintaining a “billboard, sign, [or] advertising device” in a protected area. The same opinion and order was entered in LaRue Circuit Court Civil Action No. 08-CI-00026 against Harston and Bill Sullivan. Both cases present identical issues and were consolidated by the trial court on motion of the parties. This Court has become aware of a third case, Jimmy Harston; Donnie Kimbro and Brenda Kimbro v. Commonwealth of Kentucky Transportation Cabinet, Department of Highways, No. 2010-CA-001124-MR, with similar issues and on its own motion has consolidated it with the Hart and LaRue actions. Having considered the briefs, the record and the law, the opinion and orders entered by the Hart and LaRue Circuit Courts are affirmed. The final order and judgment entered by the Warren Circuit Court is affirmed in part, and the language requiring appellants to apply for a permit is reversed.

Nonpublished Tort, Procedure, etc – AKA TORT REPORT


206.  Torts. Defamation.
TOLER (JOSEPH E.)
VS.
SUD-CHEMIE,INC., ET AL.
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
CAPERTON (PRESIDING JUDGE)
WINE (CONCURS) AND LAMBERT (CONCURS)
2009-CA-001686-MR
NOT TO BE PUBLISHED
JEFFERSON

CAPERTON, JUDGE: The Appellant, Joseph Toler, appeals the September 1, 2009, order of the Jefferson Circuit Court granting a directed verdict to Appellees Sud-Chemie, Inc. and Glen Shull, and from a jury verdict in favor of Appellees Jude Ware, Mike Watson, and Don Votow, on the defamation claim filed by Toler against the Appellees below. On appeal, Toler argues that the trial court erroneously applied the constitutional “actual malice” standard for overcoming the qualified privilege in this case, instead of the more plaintiff-friendly common-law standard set forth in Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 782 (Ky. 2004). Toler also argues that the court gave prejudicially erroneous liability instructions to the jury as to the individual defendants against whom claims remained. Having reviewed the record, the arguments of the parties, and the applicable law, we affirm in part, reverse in part, and remand.

208.  Premises Liability.  Movie theater steps and lighting.
RUCINSKI (ELIZABETH)
VS.
CINEMARK U.S.A, INC.
OPINION AFFIRMING
COMBS (PRESIDING JUDGE)
CAPERTON (CONCURS) AND KELLER (CONCURS)
2009-CA-002067-MR
NOT TO BE PUBLISHED
JEFFERSON

214. Workers Compensation. Reopening and medical fee dispute.
MCDONALD'S
VS.
PETTY (DEBRA), ET AL.
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
TAYLOR (CONCURS) AND CAPERTON (CONCURS)
2010-CA-000465-WC
NOT TO BE PUBLISHED
WORKERS' COMP

 

 

 

 

 

 

 

 

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