COAKY Minutes: April 26, 2013 — Two Tort Cases: Open Records Act and attorney fees; long-arm statute and contract with Indiana governement agency

Published and Unpublished Decisions for COAKY for April 26, 2013

Click herefor this week’s COA minutes and decisions
No. 416-436;  21 decisions; 1 decision “To Be Published”
Click here for complete list of all COA minutes that you can download.

This week the following issues were addressed by COAKY:

PUBLISHED DECISIONS –

417.  CRIMINAL LAW
Michael Moran vs. Commonwealth of Kentucky
Opinion Affirming; Lewis County

COMBS, JUDGE: Michael Moran appealed his conviction of fourth-degree assault in the Lewis Circuit Court. The Commonwealth petitioned for and was granted discretionary review by the Supreme Court of Kentucky. On the original appeal, this Court vacated Moran’s conviction. This case now comes to us on remand from the Supreme Court of Kentucky, which has directed us to examine the case anew in the light of its ruling in Graves v. Commonwealth, 384 S.W.3d 144 (Ky. 2012), which was rendered six months after our decision. After our re- examination, we agree that our original disposition vacating and remanding now must be one affirming the Lewis Circuit Court.

TORT REPORT

416.  OPEN RECORDS ACT and ATTORNEY FEES
Knockout Sports Saloon, Inc. vs. Louisville Metro Government
COA, NPO, 4/26/2013

CAPERTON, JUDGE: The appellant, Knockout Sports Saloon, Inc. (“Knockout”), appeals a declaration of rights issued by the Jefferson Circuit Court that declined to award attorney’s fees for violations of the Open Records Act (“the Act”). Knockout asserts that violations of the Act by the Louisville Metro Police Department (“LMPD”) were willful and entitled them to costs pursuant toKentucky Revised Statues (KRS) 61.882(5). After conducting a hearing on the issue, the circuit court found that LMPD violated the act. However, it determined that Knockout failed to establish willfulness and declined to award costs. We affirm.

420. UNEMPLOYMENT BENEFITS
L. Forgy & Associates PLLC vs. Gillock
COA, NPO 4/26/2013

KELLER, JUDGE: L. Forgy & Associates, PLLC, (L. Forgy), appeals from the Franklin Circuit Court’s opinion and order reversing the Kentucky Unemployment Insurance Commission’s (the Commission) order denying Zanda Gillock’s (Gillock) application for benefits. On appeal, L. Forgy argues that the Commission correctly applied the law to the facts, and the circuit court’s reversal was erroneous. For the following reasons, we disagree and affirm.

432.  JURISDICTION.  LONG-ARM STATUTE.
Hughes vs. Haas
COA, NPO 4/26/2013

COMBS, JUDGE: Adrian Hughes (Hughes) appeals from the order of the Jefferson Circuit Court dismissing his action against the Clark County (Indiana) Sheriff’s Department and granting Kenneth Haas’s (Haas) motion for summary judgment. After our review, we affirm.

Hughes first argues that the trial court erred in dismissing the claims against the Sheriff’s Department due to a lack of personal jurisdiction. Kentucky state courts have jurisdiction over out-of-state residents pursuant to our long-arm statute. Kentucky Revised Statute[s] (KRS) 454.210. Pertinent to this appeal, it directs that:

A court may exercise personal jurisdiction over a person[1] who acts directly or by an agent, as to a claim arising from the person’s: . . . 2. Contracting to supply services or goods in this Commonwealth[.]

KRS 454.210(2)(a). If the long-arm statute applies, in order to comport with constitutional due process, we must then consider three questions to determine if an out-of-state defendant is properly before a Kentucky court:

(1) Did Appellant have minimum contacts with this Commonwealth so that maintenance of a lawsuit would not offend traditional notions of fair play and substantial justice? International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154 (1945).

(2) Did Appellant purposefully avail itself of the  convenience of our forum by conducting activities within this Commonwealth, thus invoking the benefits and protections of our laws? Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228 (1958).

(3) Did Appellant have such a connection with this Commonwealth that it should reasonably anticipate being “hauled into court” here? World-Wide Volkswagen Corp. v. 1 The Sheriff’s Department is a statutory person pursuant to KRS 454.210(1). Woodson, 444 U.S. 286, 100 S.Ct. 559 (1980). National Grange Mut. Ins. Co. v. White, 83 S.W.3d 530, 534 (Ky. 2002).

Hughes argues that the long-arm statute applies to the Sheriff’s Department because their agreement with Metro was a contract that provided new skills for Metro employees to bring back to Kentucky. We disagree. It is clear that the skills learned by Metro employees at the training benefited the Commonwealth of Kentucky rather than the state of Indiana. Additionally, the training was not provided by the Sheriff’s Department in Indiana.

The “contract” consisted of a letter from Captain Terry Hubler of the Sheriff’s Department to Louisville Metro’s Director of Training. Its entire contents were: “This letter is to confirm that Louisville Metro Department of Corrections as [sic] an agreement to use the Clark County Law Enforcement Center, range, and classroom facilities as scheduled through 2009.” The contract directed that the Sheriff’s Department would only provide the facilities for Metro’s training. Captain Hubler and Haas both testified that Metro provided all equipment and instructors. No members of the Sheriff’s Department participated in the training.

The Sixth Circuit has addressed a similar situation in Brunner v. Hampson, 441 F.3d 457 (6th Cir. 2006). In Brunner, the victims of a fire in a hunting cabin in Canada sued the booking agent and outfitter of the cabin. The Court “easily dismissed” the primary argument: that facilitating the arrangements for the stay in the lodge was a provision of goods or services in Ohio that would allow exercise of its long-arm statute. Id. at 464. It did not matter that the contractual arrangements were made while the plaintiffs were still in Ohio. Id. The services – use of facilities and guided hunting – were provided in Canada. And that locale was the governing issue.

According to the express terms of our statute, personal jurisdiction invoked by the long-arm statute is valid only if the contract is to supply goods and services within this Commonwealth. KRS 454.210(2)(a). In the case before us, the services provided by the Sheriff’s Department – the use of its facilities – were provided in Indiana. Therefore, as in Brunner, the long-arm statute does not apply. Accordingly, it is unnecessary for us to determine whether the contacts of the Sheriff’s Department with the Commonwealth were sufficient to provide jurisdiction. The trial court properly dismissed the claims against the Sheriff’s Department.

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