Feb. 15, 2013 Court of Appeals Minutes (Links to Appellate Decisions)

Court of Appeals Minutes Text OnlyPublished and Unpublished Decisions from the Kentucky Court of Appeals

February 15, 2013 Court of Appeals Minutes
Nos. 169-187
18 decisions;  4 Cases To Be Published
Click here for AOC page with current minutes and archived minutes links

PUBLISHED DECISIONS WITH LINKS TO FULL TEXT:

169.  CIVIL PROCEDURE.  FAXED ORDER FROM JUDGE TO CLERK IS DATE OF FAX AND NOT DATE WHEN ORDER RECEIVED AND FILED BY CLERK.  TIME FOR FILING MOTION TO SET ASIDE AND APPEAL UNTIMELY.
MCPHERSON (PATRICIA)
VS.
FELKER (JOHN G.)
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
ACREE (CONCURS) AND NICKELL (CONCURS)
2009-CA-000901-MR
TO BE PUBLISHED
MONTGOMERY

STUMBO, JUDGE: This appeal addresses the following procedural question: Is a signed order granting summary judgment, which was faxed to the clerk and entered in the docket, a final judgment for purposes of calculating the timeliness of a subsequent motion to alter, amend or vacate? The Montgomery Circuit Court held that the faxed order was the final judgment, and on that basis ruled that Patricia McPherson’s motion to vacate was untimely filed. We agree and affirm.

In Kentucky, the stamping of a judge’s signature is also common practice in certain circuit courts. This practice is only one step removed from receiving a signed order by fax. As long as the order is regular on its face and has not been challenged as not intended to be entered or not the signature of the judge, the order should be presumed valid. We see no reason to find that a faxed order which is signed by the judge should not be considered a “signed” order under CR 58(1).

Also, as a practical matter, there is a common sense reason for permitting faxed signatures. In Kentucky, many judges sit in more than one county and routinely hold hearings in a county other than the county in which the order is to be entered. The ability of the judge to fax an order for the clerk to enter facilitates entry of orders in a timely fashion, particularly when there is need for swift action such as in child custody or visitation situations. The Court of Appeals regularly enters facsimile copies of an order on the docket, which is then replaced with the original order when it is received by our clerk by mail from the judge’s chambers. To ensure a smooth flow of court business, signed faxed orders are “signed” for the purposes of CR 58.

178.  TORTS. DEFENSES.  RECREATION USE STATUTE RENDERED DEFENDANTS IMMUNE FROM SUIT.
ROACH (DAVID)
VS.
HEDGES (RHONDA), ET AL.
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
COMBS (CONCURS) AND THOMPSON (CONCURS)
2011-CA-001856-MR
TO BE PUBLISHED
JEFFERSON

CLAYTON, JUDGE: The appellant, David Roach, appeals the Jefferson Circuit Court’s entry of summary judgment in favor of the appellees, Rhonda Hedges, Dr. Mary L. Greenlee, Don Zettwoch, and Kevin Knott. The circuit court determined that Kentucky’s Recreational Use Statute, Kentucky Revised Statutes (“KRS”) 411.190(3)-(4), is applicable, rendering the appellees immune from suit. We agree and the decision of the circuit court is affirmed.

Roach does not challenge the recreational nature or public use of the property. Instead he challenges the applicability of KRS 411.190 by asserting that the appellees are not “owners” as defined by KRS 411.190(1)(b).

KRS 411.190(1)(b) defines an “owner” as “the possessor of a fee, reversionary, or easement interest, a tenant, lessee, occupant, or person in control of the premises[.]” By adopting a broad definition of “owner” and including the provision “in control of the premises,” we believe the legislature intended to eliminate negligence liability, under the circumstances set forth in the statute, by removing the duty of care from individuals who have sufficient control to render them liable absent the statute’s application.

This interpretation is consistent with this Court’s holding in Midwestern, Inc. v. Northern Kentucky Community Center, where we determined that, while the community center did not own title to the land, it was considered an “owner” under KRS 411.190. 736 S.W.2d 348, 349 (Ky. App. 1987).

Despite the fact that the contract purport[ed] to be a lease, it [was] clear from the language of the contract itself and the monetary arrangement between the City and the center that the document [was] essentially an employment contract pursuant to which the center was paid to manage and oversee the day-to-day operation of the facility.

Id. at 350. As a result, the center was “in control of the premises” as set forth in KRS 411.190(1)(b) and was an owner. Id. In other words, the center was an owner, not because of the lease, but because of the authority conveyed by the contract.

184.  FAMILY LAW.  DVO AND CIVIL PROCEDURE RULES
WOLFE (TRACY)
VS.
WOLFE (WILLIAM)
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
ACREE (CONCURS) AND COMBS (CONCURS)
2012-CA-000578-ME
TO BE PUBLISHED
LAUREL

STUMBO, JUDGE: Tracy Wolfe appeals from the denial of a domestic violence order which she sought on behalf of her child. Her claims on appeal are that the Kentucky Rules of Civil Procedure do not apply in domestic violence proceedings and that she was denied the opportunity to offer certain proof during the domestic violence hearing. We find no error and affirm.

187. APPEALS.  DENIAL OF IMMUNITY FROM PROSECUTION IS IMMEDIATELY APPEALABLE
FARMER (CHARLES P.)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AND ORDER
THOMPSON (PRESIDING JUDGE)
CAPERTON (CONCURS) AND ACREE (DISSENTS AND FILES SEPARATE OPINION)
2012-CA-001659-MR
TO BE PUBLISHED
RUSSELL

THOMPSON, JUDGE: This case presents an issue of first impression in this Commonwealth, specifically, whether an order denying immunity from prosecution pursuant to Kentucky Revised Statute (KRS) 503.085 is immediately appealable. The Court entered an order directing appellant to show cause why this appeal should not be dismissed as having been improperly appealed from an interlocutory order. Based on the Supreme Court’s recognition that immunity affords protection from litigation in civil cases and an order denying immunity is immediately appealable, we hold that appellant has demonstrated sufficient cause to prevent the dismissal of this appeal.

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