COAM 2014:05 – Court of Appeals Minutes of Decisions Posted for January 31, 2014 – 15 decisions

Breckenride County CH New

Breckinridge County Justice Center – Hardinsburg, Kentucky
Photo by Michael Stevens

The Court of Appeals of Kentucky (COAKY) announced 39 decisions this week of January 31, 2014.  7  were designated “to be published”.    Click here for complete list of all archived Court of Appeals’ Minutes that you can download from the Administrative Office of the Courts’ web site.

The Court of Appeals addressed several CR 60.02 issues on appeal, such as:  Edwards v. Headcount Management (COA found no abuse in trial court’s denial of motion to set aside a summary judgment that had not been appealed);  Bowland v. Gardner (COA affirmed trial court’s granting of summary judgment by treating the appeal as a CR 60.02 motion to set aside); Charlambakis v. Asbury College (COA affirmed summary judgment dismissing discrimination in employment claim);  Sizemore Mining Corp. v. Anderson (COA found plaintiff had no standing on claim in real estate dispute).  In Lane v. Richards, the COA affirmed a dismissal for lack of prosecution which was up on appeal for the second time, but this time the trial judge laid out the Ward v. Hausman factors and was affirmed.  Yes, trial judges can get it right the second time around once they are shown the way.

It looks as if the clerk typists at the Court of Appeals enjoy toying with me with another sequential renumbering of the appellate decisions.  Now the decisions are numbered (at least in this week’s minutes) sequentially from the beginning.  Why do you toy and tease me so? Probably because you can.  Oh well.  Let the games continue.

This week’s photo highlights Breckinridge County.  I took the photo on  trip through the countryside with Diane to hit a few places I had not seen for a while.  The county was in need of a new judicial center, and I look forward to see how the “innards” look.  For more information on Breckinridge County Courts, click here for the AOC web site page for circuit court clerks and other information.  I will now be posting a few pictures from Hardinsburg – old Courthouse, historical markers, Main Street, and a little black and white to give a vintage timeless quality.

TORT, INSURANCE AND PROCEDURE HIGHLIGHTS:

69.  CR 60.02.  Non-attorney not happy with losing a finder’s fee for connecting clients with lawyer to pursue a legal malpractice claim
Bowland v. Gardner
McCracken County – Judge Jeffrey Hines
COA NPO 1/31/2014

CLAYTON, JUDGE: This is an appeal from the granting of a summary judgment motion which the McCracken Circuit Court treated as a Kentucky Rules of Civil Procedure (CR) 60.02 motion. Based upon the following, we affirm the decision of the trial court.

Odd case in which a non-attorney sued to recover a finder’s fee for connecting the defendant with their attorney to pursue a legal malpractice claim against an attorney who missed the statute of limitations.

74.  Employment Discrimination Claim.
Charlambakis v. Asbury College
Jessamine County – Judge
COA PUB 1/31/2014

THOMPSON, JUDGE: John Charalambakis, a former professor at Asbury College, sued for employment discrimination, breach of contract and defamation. Charalambakis appeals from summary judgment on his discrimination and retaliation claims, dismissal of his defamation claim, the jury verdict on breach of contract claim and the final judgment awarding costs. 

[C]lose temporal proximity between filing a discrimination claim and an adverse employment action is immaterial if the employer was contemplating the adverse action before it learned of the protected activity. Breeden, 532 U.S. at 272, 121 S. Ct. at 1510-1511; Reynolds v. Extendicare Health Servs., Inc., 257 F. App’x 914, 920 (6th Cir. 2007). “[A]n adverse employment decision that predates a protected activity cannot be caused by that activity.” Muñoz v. Sociedad Española De Auxilio Mutuo y Beneficiencia De Puerto Rico, 671 F.3d 49, 56 (1st Cir. 2012). “Employers need not suspend previously planned [actions] upon discovering that a [discrimination] suit has been filed, and their proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality.” Breeden, 532 U.S. at 272, 121 S. Ct. at 1511. Employees whose previous actions provide a valid basis for termination cannot insulate themselves from termination by subsequently engaging in protected opposition or participation activities. Curay-Cramer v. Ursuline Acad. of Wilmington, Delaware, Inc., 450 F.3d 130, 137 (3d Cir. 2006); Wharton v. Gorman-Rupp Co., 309 F. App’x 990, 998 (6th Cir. 2009).

77.  CR 60.02 Motion to Set Aside Summary Judgment
Capacity to Sue as DBA
Edwards v. Headcount Management
Marion County – Judge Allan  Ray Bertram
COA PUB 1/31/2014

ACREE, CHIEF JUDGE: At issue is whether the Marion Circuit Court abused its discretion when it denied Appellant Debbie Edwards’s motion to set aside summary judgment under Kentucky Rule of Civil Procedure (CR) 60.02. Finding no abuse, we affirm.

Standard of Review  for CR 60.02:

CR 60.02 is an exceptional remedy necessitating cautious application. Louisville Mall Associates, LP v. Wood Center Properties, LLC, 361 S.W.3d 323, 335 (Ky. App. 2012). Relief under CR 60.02 is appropriate “only under the most unusual and compelling circumstances.” Age v. Age, 340 S.W.3d 88, 94 (Ky. App. 2011). For that reason, the decision “to grant or to deny a motion filed pursuant to the provisions of CR 60.02 lies within the sound discretion of the trial court.” Id. We will not disturb the circuit court’s decision absent an abuse of that discretion. Kurtsinger v. Bd. of Trustees of Ky. Ret. Sys., 90 S.W.3d 454, 456 (Ky. 2002). Only a decision that is “arbitrary, unreasonable, unfair, or unsupported by sound legal principles[]” manifests an abuse of discretion. Artrip v. Noe, 311 S.W.3d 229, 232 (Ky. 2010).

Here Edwards failed to raise capacity as an affirmative defense by motion or responsive pleading in a timely manner.  Waived.

91.  Lack of Prosecution Dismissal.
Lane v. Richards,
Laurel County – Judge Roderick Messer
COA NPO 1/31/2014

THOMPSON, JUDGE: Joyce Lane, pro se, appeals from an order granting Hugh Montgomery Richards’s motion to dismiss for failure to prosecute. Lane alleges the trial court abused its discretion when it granted the motion to dismiss because it did not consider the totality of the circumstances. We affirm.

In this case, the circuit court considered the Ward factors and made specific findings regarding each. Additionally, it considered the totality of the circumstances. Although Lane participated in the appeals, a review of the record reveals that during the time the case was not on appeal, Lane took no affirmative steps to pursue her case. Each time her case was remanded, Lane did not conduct discovery or schedule the deposition of any witness, including Richards. The first action, taken after remand in 2008, was by Richards when he filed his motion to dismiss eight months later. In total, except for Richards’s motion, this case sat idle in the trial court for the entire twenty-one month period the case was not on appeal. As noted by the trial court, the case’s dilatory history must fall on Lane who “may not employ an attorney and then wash [her] hands of all responsibility.” Gorin v. Gorin, 292 Ky. 562, 167 S.W.2d 52, 55 (1942). The law demands the exercise of due diligence by the client as well as her attorney.

PUBLISHED DECISIONS:

72.  Criminal Law.  Sentencing.
Knuckles v.  Commonwealth of Kentucky
Rockcastle, Judge David Tapp
COA, PUB 1/31/2014

ACREE, CHIEF JUDGE: Alvin Knuckles appeals from the Rockcastle Circuit Court’s denial of his Kentucky Rule of Criminal Procedure (RCr) 11.42 motion to vacate his criminal convictions and the accompanying motions for an evidentiary hearing and appointment of counsel. We conclude an evidentiary hearing was necessary; we vacate the order in part and remand the matter for further proceedings. Because Knuckles’ collateral attack cannot succeed on the basis of a trial error, we affirm a portion of the order. 

73. Regulatory Law.  Marketing an unauthorized insurance product.
Deans & Homer, Inc. v . Commonwealth of Kentucky, Public Protection Cabinet
Franklin Cir Ct
COA PUB 1/31/2014

ACREE, CHIEF JUDGE: The appellant, Deans & Homer, Inc., appeals the Franklin Circuit Court’s opinion and order affirming an administrative determination of the Kentucky Department of Insurance that the appellant had engaged in the promotion of an unauthorized insurance policy. The circuit court also rejected appellant’s argument that the Department had violated Kentucky Revised Statutes (KRS) 304.14-130 by failing to follow the procedure for withdrawing approval of a previously approved form of insurance. Because we find the appellant did not promote an unauthorized insurance product, we reverse. 

74.  Discrimination in termination from tenured faculty position.
Charalambakis v. Asbury College
Jessamine Cir Ct.
COA PUB 1/31/2014

THOMPSON, JUDGE: John Charalambakis, a former professor at Asbury College, sued for employment discrimination, breach of contract and defamation. Charalambakis appeals from summary judgment on his discrimination and retaliation claims, dismissal of his defamation claim, the jury verdict on breach of contract claim and the final judgment awarding costs.   Affirmed.

77. Standard of review for denial of motion to set aside summary judgment (no appeal taken).
Edwards v. Headcount Management
Marion Cir Ct.
COA, PUB 1/31/2014

ACREE, CHIEF JUDGE: At issue is whether the Marion Circuit Court abused its discretion when it denied Appellant Debbie Edwards’s motion to set aside summary judgment under Kentucky Rule of Civil Procedure (CR) 60.02. Finding no abuse, we affirm.

89.  Standing.
Branham v. Estate of James Owen Elkins
Pike Cir Ct
COA PUB 1/31/2014

MOORE, JUDGE: The above-captioned appellants petitioned the Pike Circuit Court to order the sale of a tract of land located in Pike County, Kentucky. The circuit court dismissed their petition on the ground that they failed to demonstrate title to the tract in question and therefore lacked standing to file their petition. They now appeal. Upon review, we affirm.

100.  Family Law.  Grandparent visitation.
Doane v. Gordon
Spencer Fam Ct.
COA PUB 1/31/2014

COMBS, JUDGE: Matthew Lee Doane was granted custody of M.D.D., a minor child, following a proceeding for dependency, neglect, and abuse. Doane and M.D.D. appeal an order of the Spencer Family Court holding that the natural mother of M.D.D. remained entitled to decide whether the child’s natural grandmother could exercise visitation with him. After our review, we reverse and remand.

105.  Family Law. DVO.  Appeal Untimely Filed.
Erwin v. Cruz
Allen County
COA PUB 1/31/2014

VANMETER, JUDGE: Kenneth R. Erwin, Jr. appeals from the Allen Circuit Court order denying his motion to vacate the Domestic Violence Order (“DVO”) entered against him. For the following reasons, we dismiss this appeal as untimely filed.

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