COA Minutes for Aug. 24, 2012 — Nos. 751-772 (22 decisions; 8 Published)

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PUBLISHED DECISIONS OF COA:

752.  FAMILY LAW.  DVO.
TELEK (JOHN STEPHEN)
VS.
DAUGHERTY (NOW BUCHER) (SAMANTHA)
OPINION REVERSING AND REMANDING
LAMBERT (PRESIDING JUDGE)
COMBS (CONCURS) AND STUMBO (CONCURS)
2009-CA-001993-ME
TO BE PUBLISHED
KENTON

LAMBERT, JUDGE: John Stephen Telek has appealed from the Kenton Family Court’s October 21, 2009, domestic violence order (DVO) granted to Samantha Bucher. John challenges the family court’s jurisdiction to enter the DVO, the family court’s impartiality, as well as the sufficiency of the evidence supporting the entry of the DVO. In the original opinion rendered December 17, 2009, this Court agreed with John that the family court lacked jurisdiction and reversed the DVO. On discretionary review, the Supreme Court reversed this holding and remanded the appeal to this Court to consider John’s challenge to the sufficiency of the evidence. Daugherty v. Telek, __ S.W.3d __, 2012 WL 1889771 (Ky. 2012). Having now considered this argument, we conclude that the family court did not have a sufficient factual basis upon which to enter a DVO. Hence, we reverse.

759.  CRIMINAL LAW. Restitution.
DONOVAN (JOHN PATRICK)
VS.
COMMONWEALTH OF KENTUCKY
OPINION REVERSING AND REMANDING
CAPERTON (PRESIDING JUDGE)
COMBS (CONCURS) AND NICKELL (CONCURS)
2011-CA-000538-MR
TO BE PUBLISHED
ADAIR

CAPERTON, JUDGE: John Patrick Donovan appeals as a matter of right the trial court’s order of restitution in the amount of $2088.15. On appeal, Donovan argues that his due process rights were violated by the trial court’s order. After a thorough review of the parties’ arguments, the record, and the applicable law, we agree with Donovan and, accordingly, reverse and remand this matter for further proceedings.

760.  CONSUMER PROTECTION.  CIVIL INVESTIGATIVE DEMAND.
ABC, INC.
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
LAMBERT (PRESIDING JUDGE)
NICKELL (CONCURS) AND TAYLOR (CONCURS)
2011-CA-000631-MR
TO BE PUBLISHED
FRANKLIN

LAMBERT, JUDGE: ABC, Inc., has appealed from two orders of the Franklin Circuit Court upholding the issuance of a subpoena and civil investigative demand (CID) by the Attorney General of Kentucky pursuant to Kentucky’s Consumer Protection Act (KCPA), Kentucky Revised Statutes (KRS) 367.110 to KRS 367.300. Having considered the record and the parties’ arguments in their briefs, we affirm the summary judgment related to the Attorney General’s authority to issue the CID and the documentation used to support it, but we reverse and remand this matter for consideration of the scope of the CID.

762.  CIVIL PROCEDURE. SUMMARY JUDGEMENT.
THE SULLIVAN UNIVERSITY SYSTEM, INC.
VS.
KENTUCKY BOARD OF NURSING, ET AL.
OPINION REVERSING AND REMANDING
STUMBO (PRESIDING JUDGE)
COMBS (CONCURS) AND LAMBERT (CONCURS)
2011-CA-000853-MR
TO BE PUBLISHED
JEFFERSON

STUMBO, JUDGE: The Sullivan University System, Inc. d/b/a Spencerian College (hereinafter Spencerian) appeals from an order of the Jefferson Circuit Court granting summary judgment in favor of the Kentucky Board of Nursing (hereinafter the Board). Spencerian argues the trial court erred by granting summary judgment in favor of the Board. We find summary judgment was improperly granted in favor of the Board because it retroactively applied new regulations; therefore, we reverse and remand with directions for the trial court to enter judgment in favor of Spencerian.

766. CRIMINAL LAW.
LAWSON (LESLIE L.)
VS.
COMMONWEALTH OF KENTUCKY
OPINION VACATING AND REMANDING
COMBS (PRESIDING JUDGE)
CAPERTON (CONCURS) AND NICKELL (CONCURS)
2011-CA-001297-MR
TO BE PUBLISHED
LAUREL

At issue in the case before us is the sacrosanct nature of the peremptory challenge. Although a challenge was not “used up” to correct a judicial error as in Shane, nonetheless the under-allocation of peremptory challenges (by two) equally impaired Lawson’s right to select his jury. The reasoning of Shane is compellingly analogous and pertinent.

Counsel clearly erred in failing to object to the improper allotment of challenges and did so to the substantial detriment of Lawson. Thus, both of the Strickland prongs of deficient performance of counsel and consequent prejudice to the appellant have been established.

Therefore, having found that Lawson was entitled to relief pursuant to RCr 11.42, we vacate the order of the Laurel Circuit Court and remand this matter for additional proceedings consistent with this opinion.

770.  REAL PROPERTY.  JOINT TENANCY REQUISITES.
LITTLETON (JASON), ET AL.
VS.
PLYBON (EDGAR), ET AL.
OPINION AFFIRMING
MOORE (PRESIDING JUDGE)
ACREE (CONCURS) AND THOMPSON (CONCURS)
2011-CA-002114-MR
TO BE PUBLISHED
CARTER

MOORE, JUDGE: Jason Littleton and Elizabeth Floyd (collectively Littleton) appeal the order of the Carter Circuit Court dismissing their complaint for failure to state a claim upon which relief could be granted. After a review of the record, we affirm.

On appeal, Littleton’s sole argument is that the direct conveyance was insufficient to create a joint tenancy because the requisite unities of time, title, and interest were lacking. However, Littleton does not contest that these unities could have been achieved with the use of a straw man, which is merely a circuitous route for avoiding objections as to unity of time, title, interest, and possession and serves to give effect to the “parties’ intent that the grantor also be one of the grantees.” Smith v. Vest, 265 S.W.3d 246, 251 (Ky. App. 2007) (citing Haynes v. Barker, 239 S.W.2d 996, 997 (Ky. 1951)). The straw man simply acts as an intermediary title holder, and it is never intended that he obtain any lasting rights to the property.

Thus, Littleton’s argument proposes only that what could have been achieved by this indirect method was not achieved by direct conveyance.

However, our state’s highest Court has endorsed a departure from “strict adherence to [such] common law technicalities” and “permit[s] to be done directly, that which could be done indirectly,” thereby giving effect to the interest the parties intended to create by conveyance. Haynes, 239 S.W.2d at 997. Littleton simply seeks to enforce these technicalities and presents no other compelling argument as to why we should not give effect to the Boggs deed. Thus, we find no reason not to enforce the intention in the Boggs deed to create a joint tenancy where it was achieved directly rather than indirectly.

771.  FAMILY LAW. CHILD SUPPORT.
MCINTOCH (WILLARD)
VS.
LANDRUM (BEVERLY)
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
CLAYTON (CONCURS) AND LAMBERT (DISSENTS AND FILES SEPARATE OPINION)
2012-CA-000161-ME
TO BE PUBLISHED
KENTON

STUMBO, JUDGE: In this appeal, Willard McIntosh appeals from two orders of the Kenton Circuit Court requiring him to pay, as part of his child support, amounts for respite care and work-related childcare to Beverly Landrum. He was also ordered to pay a part of Ms. Landrum’s attorney fees and court costs. We find that the trial court did not err in awarding Ms. Landrum payments for respite care, work-related childcare, and attorney fees. We therefore affirm.

772. WORKERS COMPENSATION
ROCK DRILLING, INC.
VS.
HOWELL (CHRISTOPHER R.), ET AL.
OPINION AFFIRMING
CAPERTON (PRESIDING JUDGE)
COMBS (CONCURS) AND NICKELL (CONCURS)
2012-CA-000490-WC
TO BE PUBLISHED
WORKERS’ COMP

CAPERTON, JUDGE: The Appellant, Rock Drilling, Inc., appeals the February 13, 2012, opinion of the Workers’ Compensation Board, affirming the October 3, 2011, opinion of the Administrative Law Judge (ALJ). On appeal, Rock Drilling raises two issues, namely: (1) whether the Administrative Law Judge and Workers’ Compensation Board erred in holding that the statutory 3.0 multiplier under Kentucky Revised Statutes (KRS) 342.730(1)(c)1 could be awarded on reopening; and (2) whether the ALJ and the Board erred in determining that they could not consider the impairment agreed upon at the time of the original settlement as the impairment to use on reopening. Following a thorough review of the record, the arguments of the parties, and the applicable law, we affirm.

TORT REPORT  FOR PUBLISHED/NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

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PUBLISHED:

762.  CIVIL PROCEDURE. SUMMARY JUDGEMENT.
THE SULLIVAN UNIVERSITY SYSTEM, INC.
VS.
KENTUCKY BOARD OF NURSING, ET AL.
OPINION REVERSING AND REMANDING
STUMBO (PRESIDING JUDGE)
COMBS (CONCURS) AND LAMBERT (CONCURS)
2011-CA-000853-MR
TO BE PUBLISHED
JEFFERSON\

NONPUBLISHED:

753.  CIVIL PROCEDURE. DISMISSAL FOR FAILURE TO PROSECUTE.  REMANDED FOR WARD FACTORS.
LANE (JOYCE)
VS.
RICHARDS (HUGH MONTGOMERY)
OPINION REVERSING AND REMANDING
CLAYTON (PRESIDING JUDGE)
MOORE (CONCURS) AND NICKELL (CONCURS)
2010-CA-000414-MR
NOT TO BE PUBLISHED
LAUREL

CLAYTON, JUDGE: This is an appeal from the Laurel Circuit Court. The Appellant, Joyce Lane, brought a legal malpractice action against Appellee, Hugh Montgomery Richards. The trial court dismissed it for failure to prosecute and we reverse that decision and remand this action to the trial court for further findings consistent with this opinion.

Lane first asserts that the trial court erred in dismissing her case for failure to prosecute because she was not notified either by her attorney or the court clerk’s office of pending motions in the case. In Jaroszweski, supra, the Kentucky Supreme Court held that in reviewing a dismissal under CR 41.02, “the trial court must base its decision to dismiss under CR 41.02 upon the totality of the circumstances; and it should take into account all relevant factors, whether or not those factors are listed in Ward.” Id. at 36. The Ward factors are those set forth in Ward v. Housman, 809 S.W.2d 717, 719 (Ky. App. 1991):

1) the extent of the party’s personal responsibility;

2) the history of dilatoriness;

3) whether the attorney’s conduct was willful and in bad faith;

4) meritoriousness of the claim;

5) prejudice to the other party, and

6) alternative sanctions.

Jaroszewski also set forth that: “Trial courts must make explicit findings on the record so that the parties and appellate courts will be properly apprised of the basis for the trial court’s rulings[.]” Jaroszewski, 297 S.W.3d at 36. In the trial court’s ruling, the following is set forth:

. . . Plaintiff has completely failed to move this matter towards resolution. This Court has specifically considered the factors enumerated in Ward v. Housman, Ky. 809 S.W.2d 717 (1991), namely: 1) the extent of the party’s personal responsibility; 2) the history of dilatoriness; 3) whether the attorney’s conduct was willful and in bad faith; 4) meritoriousness of the claim, 5) prejudice to the other party, and; [sic] 6) alternative sanctions. The Court has considered each of these factors and finds that the balance of the test weighs in favor of the Defendant, thus Dismissal is appropriate.

Order entered February 2, 2010 at 1.

FN.  While the trial court sets forth the Ward factors, it did not explain with the explicitness required by Jaroszewski why it dismissed the case pursuant to those factors. Thus, we reverse this action and remand it to the trial court for further findings consistent with this order.

ALL CONCUR.

765.  TORTS. FELA.
ISON (ROBERT PAIGE)
VS.
CSX TRANSPORTATION, INC.
OPINION AFFIRMING
COMBS (PRESIDING JUDGE)
CAPERTON (CONCURS) AND NICKELL (CONCURS)
2011-CA-000989-MR
NOT TO BE PUBLISHED
GREENUP

COMBS, JUDGE: Robert Ison appeals the summary judgment dismissing his injury claim in Greenup Circuit Court. Following our review, we affirm.

Ison began working for CSX Transportation, Inc., (CSX) in 1981. He worked as a brakeman for several years and then as a conductor until he left CSX in December 2006. On November 3, 2009, Ison filed a lawsuit alleging that CSXhad negligently failed to provide a safe workplace – resulting in career-ending injuries to Ison. The injury at issue is cumulative trauma to his knee and to his hips. The lawsuit was filed pursuant to the Federal Employers Liability Act (FELA). 45 U.S.C. §51, et seq.

Ison’s testimony demonstrated that there was no question of fact remaining as to whether his injury accrued within three years of the date he filed his lawsuit. It is clear that at least by June 2006, he was aware that he had been injured and that his injury was caused by the work that he had been performing for CSX. Although he had not received a diagnosis which identified working as the source of his pain, he admitted that it abated when he was at home and that he believed that walking on ballasts was the source of leg and knee pain. Pain that occurs only at work and not at home conclusively puts “a plaintiff on notice that he has suffered an injury.” Crisman v. Odeco, Inc., 932 F.2d 413, 416 (5th Cir. 1991). Therefore, Ison had a legal duty to investigate the known problem and its cause. Campbell, supra. Because he did not meet the pertinent legal criteria, we cannot conclude that the trial court erred in granting summary judgment to CSX.

 

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