Jan. 27, 2012 COA Minutes — Nos. 84-115 (32 decisions; 5 published)

Jan. 27, 2012 COA Minutes —  Nos. 84-115 (32 decisions; 5 published)

  • Click on the above link for the full text of minutes with link to full text of each decision.
  • Cick here for AOC page with current minutes and archived minutes links

PUBLISHED DECISIONS OF COA:

91. BUSINESS LAW. LETTERS OF CREDIT. ATTORNEY FEES.
LOUISVILLE MALL ASSOCIATES, LP, ET AL.
VS.
WOOD CENTER PROPERTIES, LLC
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
ACREE (PRESIDING JUDGE)
STUMBO (CONCURS) AND LAMBERT (CONCURS)
2010-CA-000933-MR
2010-CA-001255-MR
TO BE PUBLISHED
OLDHAM

ACREE, JUDGE: Appellants, Robert B. Greene (Greene) and Louisville Mall Associates, LP, Manchester Mall Associates, LP, Corbin Mall Associates, LP, Sheperdsville Mall Associates, LP, and Fairlea Mall Associates, LP (collectively, the “Mall Appellants”)2 bring these consolidated appeals from a judgment and two post-judgment orders of the Oldham Circuit Court. Greene first appeals from the circuit court’s order granting appellee, Wood Center Properties (WCP), summary declaratory judgment claiming the circuit court erroneously interpreted the Letter of Credit at issue. We find no reversible error in the circuit court’s rulings respecting this issue. In the second appeal, Greene first contends the circuit court improperly denied his motion pursuant to Kentucky Rules of Civil Procedure (CR) 60.02. We find Greene’s CR 60.02 motion procedurally deficient and affirm the circuit court’s first post-judgment order. Greene next asserts the circuit court improperly granted WCP’s motion for attorney’s fees. We agree and reverse the circuit court’s second post-judgment order. Accordingly, we affirm in part and reverse in part, and remand for the entry of an order consistent with this opinion.

93. CRIMINAL LAW
RAINES (LARRY)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
DIXON (CONCURS) AND LAMBERT (CONCURS)
2010-CA-001059-MR
TO BE PUBLISHED
JESSAMINE

CLAYTON, JUDGE: Larry Raines appeals from a judgment of the Jessamine Circuit Court on his conditional guilty plea to seven counts of incest. For the following reasons, we affirm.

103.  MEDICAL MALPRACTICE.  CIVIL PROCEDURE (SUMMARY JUDGMENT, AFFIDAVITS)
ROGERS (JIMMY)
VS.
INTEGRITY HEALTHCARE SERVICES, INC.
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
CAPERTON (CONCURS) AND KELLER (CONCURS)
2010-CA-001876-MR
TO BE PUBLISHED
LINCOLN

LAMBERT, JUDGE: Jimmy Rogers appeals from the Lincoln Circuit Court’s grant of summary judgment in favor of Integrity Healthcare Services, Inc. (“Integrity”)1 as to Rogers’s medical malpractice claims against Integrity. After our review, we affirm.

Rogers first challenges the circuit court’s reliance upon Lipsteuer, supra, and Gilliam, supra, which held that an affidavit cannot be used to defeat a motion for summary judgment if it contradicts previous testimony provided by the non-moving party. Rogers admitted in his motion to set aside the summary judgment that his affidavit contradicted his previous interrogatory answers. However, he contends that the subject decisions are inapposite in this case and that summary judgment was, therefore, entered erroneously because they dealt with affidavits that contradicted deposition testimony – not interrogatory answers.

As correctly noted by Integrity, though, Rogers failed to raise this particular argument before the circuit court. Therefore, we consider it waived since “‘[a] new theory of error cannot be raised for the first time on appeal.’” Fischer v. Fischer, 348 S.W.3d 582, 588 (Ky. 2011), quoting Springer v. Commonwealth, 998 S.W.2d 439, 446 (Ky. 1999); see also Hutchings v. Louisville Trust Co., 276 S.W.2d 461, 466 (Ky. 1954) (“[I]t is the accepted rule that a question of law which is not presented to or passed upon by the trial court cannot be raised here for the first time.”). Moreover, this Court has explicitly recognized that a party “cannot submit a later affidavit contradicting his earlier sworn answers to interrogatories to defeat summary judgment.” Best v. West American Ins. Co., 270 S.W.3d 398, 403 n.6 (Ky. App. 2008) (Emphasis added). Thus, no “extraordinary error” occurred here that would merit relief in the absence of preservation. See Fischer, 348 S.W.3d at 589; CR 61.02. Accordingly, Rogers’s argument must be rejected.

“It is beyond dispute that causation is a necessary element of proof in any negligence case.” Baylis v. Lourdes Hosp., Inc., 805 S.W.2d 122, 124 (Ky. 1991). “[I]n most medical negligence cases, proof of causation requires the testimony of an expert witness because the nature of the inquiry is such that jurors are not competent to draw their own conclusions from the evidence without the aid of such expert testimony.” Id. (Footnote omitted); see also Andrew v. Begley, 203 S.W.3d 165, 170 (Ky. App. 2006).3 Thus, in order “[t]o survive a motion for summary judgment in a medical malpractice case in which a medical expert is required, the plaintiff must produce expert evidence or summary judgment is proper.” Andrew, 203 S.W.3d at 170.

Integrity asserts – correctly – that the subject affidavit fails to establish that either of the nurses was qualified as an expert to opine on medical causation and provides no evidence of their respective backgrounds, qualifications, or their knowledge of the subject medical history. Moreover, Rogers did not produce any reports or statements from the nurses summarizing or explaining their opinions and the bases for them. In light of these threshold failures, we cannot say that the circuit court erred in refusing to consider the affidavit and the opinions offered by the nurses therein as evidence of medical causation or in consequently entering summary judgment.4 Rogers had ample time to produce expert witnesses to support his cause of action and to sustain his burden of proof, but he failed to do so. Therefore, Integrity was entitled to summary judgment as a matter of law. See Blankenship, 302 S.W.3d at 673.

104.  CRIMINAL LAW
SCHWEIKERT (TROY)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
TAYLOR (CONCURS) AND DIXON (CONCURS)
2010-CA-001936-MR
TO BE PUBLISHED
KENTON

LAMBERT, JUDGE: In this post-conviction action, Troy Schweikert, proceeding pro se, has appealed from the Kenton Circuit Court’s order denying his motion for Kentucky Rules of Criminal Procedure (RCr) 11.42 relief on grounds of ineffective assistance of trial counsel. Because we agree with the trial court that Schweikert’s claims were refuted by the record, we affirm.

113.  CRIMINAL LAW.
KERR (DANIEL)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
CLAYTON (CONCURS) AND DIXON (CONCURS)
2011-CA-000351-MR
TO BE PUBLISHED
JEFFERSON

LAMBERT, JUDGE: Daniel A. Kerr has directly appealed from the judgment of the Jefferson Circuit Court convicting him of second-degree robbery and sentencing him to six-and-one-half years’ imprisonment pursuant to the jury’s verdict. Having carefully considered the record and the parties’ arguments in their briefs, we affirm.

On appeal, Kerr presents three arguments: 1) that the trial court made improper comments to the jury at the beginning of the trial; 2) that the robbery instruction denied him a unanimous verdict by including a theory of guilt not supported by the evidence; and 3) that the trial court improperly struck a potential juror for cause. We note that the first and second arguments are not preserved for appellate review.

Kerr’s first argument addresses explanatory comments the trial court made to the jury prior to the start of the trial. These comments came directly after the court swore in the jury and were meant to orient the jury about how the trial would proceed; in other words, a “roadmap” of the proceedings. Kerr contends that these comments invaded the jury’s exclusive right to judge the facts. Both Kerr and the Commonwealth in their respective briefs provided the historical background addressing this issue of law. In his reply brief, Kerr requested that this matter be decided as either a matter of constitution law under § 7 of the Kentucky Constitution or under common law.

After Kerr filed his reply brief, the Supreme Court of Kentucky issued the opinion of Walker v. Commonwealth, 349 S.W.3d 307 (Ky. 2011), which became final on October 13, 2011. This case is the subject of Kerr’s motion for leave to file and notice of binding authority, which this Court has granted. We have reviewed this recent opinion and note that the trial judge in Walker is the same trial judge in the present case and that virtually identical comments were made in each case. Furthermore, the issue was not preserved in either case. Accordingly, we hold that the Supreme Court’s holding in Walker is determinative as to this issue, and we shall set forth the applicable portion of the opinion below:

Walker also contends that his trial was rendered unfair by comments the trial court made to the jury immediately prior to the attorneys’ opening statements. Having sworn in the jury, the trial court sought to orient it by providing what the court styled a “roadmap” of the proceedings. The court briefly described the phases of the trial and the roles of the participants. In explaining the jury’s role as the finder of fact, the court noted that the jury was the sole arbiter of the weight to be given the various pieces of evidence and the sole judge of the various witnesses’ credibility. The court then advised the jury that a witness’s credibility might be assessed by considering such factors as the witness’s interest or lack of interest in the outcome of the proceeding, the clarity of the witness’s recollection, the witness’s demeanor, his or her opportunity for observation, and the overall reasonableness of the witness’s testimony. Walker maintains that this latter advice purporting to tell the jury how to carry out its role amounted to a judicial invasion of the jury’s province and thus undermined the integrity of his trial. Again, Walker did not preserve this issue by means of a timely objection, and so our review is limited under RCr 10.26 to asking whether the “how to” portion of the trial court’s preamble was clearly improper, prejudiced Walker, and was so contrary to our ideal of fair and impartial proceedings as to be manifestly unjust. Brown v. Commonwealth, 313 S.W.3d 577, 595 (Ky. 2010). Walker attempts to evade this strict standard by asserting that the trial court’s error was of constitutional magnitude—a violation of sections 7 and 11 of the Kentucky Constitution—but even alleged constitutional errors, if unpreserved, are subject to palpable error review. Jones v. Commonwealth, 319 S.W.3d 295, 297 (Ky. 2010). Since the alleged error here does not meet the palpable error standard, it does not entitle Walker to relief.

As Walker correctly notes, in jury trials the practice in Kentucky, since statehood it appears, has been to disapprove judicial comment on the evidence and to leave exclusively to the jury the finding of facts. Allen v. Kopman, 32 Ky. 221, 2 Dana 221 (1834); Howard v. Coke, 46 Ky. 655, 7 B.Mon. 655 (1847); Cross v. Clark, 308 Ky. 18, 213 S.W.2d 443 (1948); Allen v. Commonwealth, 286 S.W.3d 221 (Ky. 2009). Although we reject Walker’s suggestion that this practice of eschewing judicial comment is a constitutional requirement,2 it is nevertheless firmly rooted in ouR common law, as noted, and in our rules. RCr 9.54 and 9.58, for example, provide that the court shall decide and instruct on questions of law. Implicit in those provisions is the understanding that questions of fact are for the jury.

Notwithstanding, then, the broad discretion accorded trial courts to control the proceedings before them, Transit Authority of River City (TARC) v. Montgomery, 836 S.W.2d 413 (Ky. 1992), and the obvious desirability of giving jurors at the outset of trial some idea of what to expect and what will be expected of them, we agree with Walker that the trial court’s instructions regarding how credibility is to be assessed strained, at least, the line judicial comment is not to breach. In Stewart v. Commonwealth, 9 Ky.Op. 793, 794 (1877), our predecessor Court considered an instruction the trial court had given at the close of proof, in which the jury were told that they were the judges of the credibility of the witnesses and the weight of the evidence, and in determining these questions they should take into consideration the demeanor of the witnesses on the witness stand, their intelligence or

2 Section 11 of our Constitution guarantees criminal defendants prosecuted by indictment or information “a speedy public trial by an impartial jury of the vicinage.” Judicial commentthreatens not the impartiality of the jury, however, which is sought to be assured by voir dire, but possibly the jury’s independence. Section 7 of our Constitution provides that “[t]he ancient mode of trial by jury shall be held sacred, and the right thereof remain inviolate, subject to such modifications as may be authorized by this Constitution.” The “ancient mode” of trial by jury is generally regarded as the common law practice in England, and particularly that practice immediately prior to the adoption of the federal constitution. Wendling v. Commonwealth, 143 Ky. 587, 137 S.W. 205 (1911). It so happens that the English common law judges regularly commented on the evidence, even to the extent of offering their opinions to the jury as to weight and credibility. Renee Lettow Lerner, The Transformation of the American Civil Trial: The Silent Judge, 42 Wm. & Mary L.Rev. 195 (Oct. 2000). A plausible argument can be made, therefore, that far from prohibiting judicial comment, Section 7 guarantees it. Robert O. Lukowsky, The Constitutional Right of Litigants to Have the State Trial Judge Comment Upon the Evidence, 55 Ky. L.J. 121 (1966–67). Neither our predecessor Court nor this one, however, has ever read the constitutional provisions as dictating the details of jury practice beyond the requirements, in felony cases, that the jury consist of twelve persons and that its verdict be unanimous. Short v. Commonwealth, 519 S.W.2d 828 (Ky. 1975) (quoting from Wendling, supra). But see Lucas v. Commonwealth, 118 Ky. 818, 82 S.W. 440 (1904) (holding that the court may not direct a verdict of guilty in a criminal case and opining that rules under the old Criminal Code assigning matters of law to the court and matters of fact to the jury were in furtherance of Section 7). We decline to depart from that reading here. [Footnote 1 in original.]

want of intelligence, the relation to or interest in the prosecution or defense, the opportunities or want of opportunities of knowing the facts about which they testified, and that by these tests, and from all the facts and circumstances allowed to go into evidence, they should give to the evidence such weight as they might believe it entitled to.

Although not faulting this instruction as an incorrect statement of the law, the Court nevertheless reversed the appellant’s murder conviction because by specifying factors the jury was to consider the instruction risked emphasizing certain items of evidence and suggesting to the jury the court’s attitude toward certain witnesses. The “safer and a better practice,” the Court concluded, was “to withhold instructions upon matters relating to the credibility of witnesses and the weight of evidence, or the rules by which the jury should be governed in passing upon either.” Stewart, 9 Ky.Op. at 795.

Similarly, in Barnett v. Commonwealth, 84 Ky. 449, 1 S.W. 722 (1886), the Court addressed an instruction providing that [t]he jury are the sole judges for themselves of the weight of the testimony and credibility of the witnesses, and may attach such weight to any and all parts thereof as they may think proper, and if they believe that any witness or witnesses have willfully sworn falsely as to any material fact, they may, if they deem proper, disregard the entire testimony of such witness or witnesses.

Barnett, 1 S.W. at 723. “Theoretically, this is all true,” the Court allowed, “and yet this Court has repeatedly condemned such an instruction, because it in effect invades the province of the jury.” Id.

Here, of course, the trial court’s advice about assessing credibility came before rather than after the witnesses had testified, and no doubt that lessened the risk that the instruction might be perceived as inviting scrutiny of any witness’s testimony in particular. Here, too, the trial court took scrupulous care to impress upon the jury that it intended no comment on the evidence and that the jury was to disregard anything that might seem like such a comment. Walker has suggested no way in which the court’s pre-opening statement witness credibility remarks might have distorted the jury’s findings. We cannot say, then, notwithstanding the tension we have noted between the trial court’s practice here and the practice Kentucky courts have long observed, that the court’s advice about assessing credibility amounted to a palpable error. Our case law does not appear to have addressed this sort of pre- opening instruction, so we cannot say that the trial court clearly or palpably abused its discretion. Moreover, Walker does not appear to have been prejudiced by the court’s comments, much less substantially so; indeed, it cannot reasonably be maintained that the court’s facially neutral and carefully chosen comments rendered Walker’s trial manifestly unjust. Therefore, Walker is not entitled to relief on this ground.

Walker, 349 S.W.3d at 313-15.

TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

IF YOU WANT

  • WORKERS COMPENSATION LAW UPDATES, I RECOMMEND YOU GO TO THE COMP ED WEB SITE AT http://www.comped.net/.
  • FAMILY LAW UPDATES, I RECOMMEND YOU GO TO Diana Skaggs’ Divorce Law Journal at http://www.divorcelawjournal.com

99.  JURISDICTION.  APPEALS (FINALITY)
MCGLADDERY (JOHN), ET AL.
VS.
HANSEN (BRANDON), ET AL.
OPINION AND ORDER DISMISSING
ACREE (PRESIDING JUDGE)
WINE (CONCURS) AND LAMBERT (CONCURS)
2010-CA-001525-MR
NOT TO BE PUBLISHED
BOONE

ACREE, JUDGE: The issue presented to this Court is whether the Boone Circuit Court erred when it dismissed, with prejudice, the appellants’ claims against the appellees on the ground that appellees were not subject to personal jurisdiction before that court. However, the order from which the appeal is taken is interlocutory and did not include both determinations required by Kentucky Rules of Civil Procedure (CR) 54.02 necessary to convert the interlocutory order into a final and appealable order. Therefore, we dismiss the appeal.

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). Unfortunately, we recognize a jurisdictional issue in this case and must dismiss the appeal because the circuit court did not make the necessary determination that “there is no just reason for delay.” CR 54.02.

The Kentucky Supreme Court has explained how CR 54.02 operates:

In any case presenting multiple claims or multiple parties, CR 54.02 . . . , vests the trial court – as the tribunal most familiar with the case – with discretion to release for appeal final decisions upon one or more, but less than all, claims in multiple claims actions. In such a case, the trial court functions as a dispatcher. If the trial court grants a final judgment upon one or more but less than all of the claims or parties, that decision remains interlocutory unless the trial court makes a separate determination that there is no just reason for delay. And the trial court’s judgment shall recite such determination and shall recite that the judgment is final.

Watson v. Best Financial Services, Inc., 245 S.W.3d 722, 726 (Ky. 2008) (internal citations and quotation marks omitted).

These recitations on the part of the trial court are mandatory:

For the purpose of making an otherwise interlocutory order final and appealable, the trial court is required to determine “that there is no just reason for delay,” and the judgment must recite this determination and also recite that the judgment is final. CR 54.02(1). The omission of one of these requirements is fatal.

Hale v. Deaton, 528 S.W.2d 719, 722 (Ky. 1975).

CAG cannot appeal the dismissal of Fountain Head until the order doing so becomes final. As for now, the order “is interlocutory and subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.” CR 54.02(1).

105.  MEDICAL MALPRACTICE CLAIM (SUMMARY JUDGMENT AND GENUINE ISSUES)
HAYES (MARK)
VS.
ASHLAND HOSPITAL CORPORATION
OPINION AFFIRMING
TAYLOR (PRESIDING JUDGE)
DIXON (CONCURS) AND LAMBERT (CONCURS)
2010-CA-002113-MR
NOT TO BE PUBLISHED
BOYD

TAYLOR, CHIEF JUDGE: Mark Lynn Hayes, II, individually and as administrator of the Estate of Kimberly Carter Hayes, (collectively referred to as appellants) bring this appeal from an October 22, 2010, summary judgment of the Boyd Circuit Court dismissing their medical malpractice action. We affirm.

To prove medical negligence, a plaintiff must demonstrate the standard of care (duty), breach of the standard of care, and that such breach caused injury. See Andrew v. Begley, 203 S.W.3d 165 (Ky. App. 2006). Generally, an expert opinion is required in a medical negligence action to establish the standard of care, breach of such standard, and causation. Jarboe v. Harting, 397 S.W.2d 775 (Ky. 1965); Morris v. Hoffman, 551 S.W.2d 8 (Ky. App. 1977). Our case law has carved out one exception to this rule in medical and professional malpractice actions where the negligence is so apparent that a layperson with general knowledge would have no difficulty in recognizing the malpractice. Stephens v. Denison, 150 S.W.3d 80 (Ky. App. 2004).

Accordingly, there being no genuine issue of material fact as to causation of death, the circuit court properly rendered summary judgment dismissing appellants’ medical malpractice claim.

107.  TORTS. FARM ANIMAL ACTIVITIES ACT.
BIESTY (THOMAS)
VS.
FLYNN (WILTON), ET AL.
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
TAYLOR (CONCURS) AND COMBS (CONCURS)
2011-CA-000084-MR
NOT TO BE PUBLISHED
ESTILL

NICKELL, JUDGE: Thomas Biesty has appealed from the Estill Circuit Court’s entry of summary judgment in favor of Wilton Flynn and his brother, Lamon Flynn. He contends the trial court erroneously found the Farm Animal Activities Act1 (“the Act”) insulated the Flynns from liability for Biesty’s injuries sustained while training Lamon’s horse on Wilton’s farm. We affirm.

Please note: I reserve the right to delete comments that are inappropriate, offensive or off-topic.

Leave a Reply

Your email address will not be published.