July 13, 2012 COA Minutes — Nos. 582-594 (13 decisions; 3 Published)

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PUBLISHED DECISIONS OF COA:

583. STATUTE OF LIMITATIONS.  SUIT AGAINST ESTATE.
BLACKWELL (CONNIE)
VS.
BLACKWELL (KENNETH)
OPINION AFFIRMING IN PART, REVERSING IN PART AND REMANDING
ACREE (PRESIDING JUDGE)
CAPERTON (CONCURS) AND VANMETER (CONCURS)
2010-CA-001691-DG
TO BE PUBLISHED
FRANKLIN

ACREE, CHIEF JUDGE: The issue before us is whether the Franklin District Court erred in dismissing appellant, Connie Blackwell’s, claim against the Estate of Kenneth Blackwell, Sr. (the Estate) on the ground that Connie failed to file suit against the Estate’s Executor, appellee Kenneth Blackwell, Jr. (Blackwell), within the sixty-day statute of limitations set forth in Kentucky Revised Statute(s) (KRS) 396.055(1). On appeal, the Franklin Circuit Court affirmed the district court’s order. We affirm in part, reverse in part, and remand for additional proceedings consistent with this opinion.

Before the circuit court, Connie argued: (1) the district court’s findings of fact contradicted the evidence with respect to whether the June 11, 2008 letter was a proper notice of disallowance; (2) the district court’s order was not in accordance with KRS 396.045(2); (3) the district court erred in applying the sixty-day limitations period to this action; (4) the district court erred in not extending the sixty-day limitations period (if applicable) to avoid injustice; and (5) the district court’s findings were inconsistent. Following a hearing, on August 12, 2010, the circuit court affirmed the district court’s September 16, 2008 order and, concomitantly, dismissed Connie’s original action. Connie then petitioned this Court for discretionary review, which we granted.

For the foregoing reasons, we reverse the August 12, 2010 order of the Franklin Circuit Court which affirmed the September 16, 2008 judgment and order of the Franklin District Court with respect to the district court’s finding that Connie’s failure to initiate an enforcement action against Blackwell within the requisite sixty-day limitations period barred her claim, and remand for further proceedings consistent with this opinion. However, we affirm both orders to the extent they found the June 11, 2008 letter to be a valid and proper notice of disallowance.

584.  BUSINESS LAW.
PEOPLES BANK OF NORTHERN KENTUCKY, INC., ET AL.
VS.
CROWE HORWATH
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
CLAYTON (CONCURS) AND STUMBO (CONCURS)
2010-CA-001709-MR
2010-CA-001788
TO BE PUBLISHED
BOONE

THOMPSON, JUDGE: In this bank auditor malpractice case, Peoples Bank of Northern Kentucky, Inc. and PBNK, Inc., f/k/a PBNK Bancorporation of Northern Kentucky, Inc. and members of its board of directors (collectively referred to as PBNK) appeal from a judgment of the Boone Circuit Court entered following a jury verdict in favor of Crowe Horwath, LLP, and William B. Brizendine. PBNK’s arguments are summarized as follows: (1) it was reversible error to include criminal third-party defendants in an instruction to the jury that criminal wrongdoers caused PBNK’s losses and include them in an apportionment instruction; (2) PBNK’s check conversion loss should have been determined by the trial court and excluded from its damage claim; (3) it was error to permit expert testimony regarding the duties of PBNK’s board of directors; and (4) a directed verdict entered in Brizendine’s favor was based on an improper legal theory and, if remand is ordered, the directed verdict should be set aside. Although Crowe and Brizendine filed cross-appeals, our resolution of PBNK’s appeal renders the cross- appeals moot.

588. CRIMINAL LAW
BOARDS-BEY (CLIFTON)
VS.
WHITE (RANDY), ET AL.
OPINION VACATING AND REMANDING
COMBS (PRESIDING JUDGE)
ACREE (DISSENTS AND FILES SEPARATE OPINION) AND LAMBERT (CONCURS)
2011-CA-000818-MR
TO BE PUBLISHED

COMBS, JUDGE: Clifton Boards-Bey, acting pro se, appeals the order of the Muhlenberg Circuit Court of April 1, 2011, which dismissed his petition for a declaration of rights. Boards-Bey contends that he did not receive the due process to which he was entitled in a prison disciplinary hearing. After our review, we agree with him and vacate the order of the circuit court and remand.

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590.  STATUTE OF LIMITATIONS. DISCOVERY.
BLAND (MARY)
VS.
CITY OF MT. WASHINGTON , ET AL.
OPINION AFFIRMING
CAPERTON (PRESIDING JUDGE)
LAMBERT (DISSENTS AND FILES SEPARATE OPINION) AND MOORE (CONCURS)
2011-CA-001239-MR
NOT TO BE PUBLISHED
BULLITT

CAPERTON, JUDGE: The Appellant, Mary Bland, appeals from a personal injury action in which the trial court entered a directed verdict on the issue of notice at the close of her case against the Appellee, City of Mount Washington. The final order entered by the court added additional grounds for dismissal that had previously been rejected via motions for summary judgment. This appeal followed. Upon review of the record, the arguments of the parties, and applicable law, we affirm.

To that end, we are in agreement with the court‘s conclusion, based upon the evidence of record, that Bland made no effort to remove the debris from the bottom of the hole or to conduct any additional research as to the owner of the hole or its purpose. We disagree with Bland’s argument that because the hole had grass and debris around it, the identity of the owner was “obstructed” as that term has been defined by our courts. Further, we are in agreement with the court below that a simple and routine title examination would have identified the owner of the hole. Indeed, prior to the expiration of the statute of limitations, Bland could have hired individuals to more thoroughly examine the hole with permission from the court and property owner, conducted title examinations, taken depositions or otherwise make efforts to ascertain the party responsible for the hole. While the pictures submitted by Bland showed the condition of the hole at ground level, we are not persuaded by her argument that these pictures amount to evidence of due diligence in this matter. Accordingly, we find no factual issue on the matter relating to the statute of limitations and affirm the granting of a directed verdict on this issue.

Upon finding that the statute of limitations is applicable to this matter, we turn now to Bland’s argument that Mount Washington should be estopped from asserting the statute of limitations. Bland argues that Kentucky law favors tolling a limitations period when the defendant cannot be identified by virtue of the defendant’s conduct. She asserts that in this case, Mount Washington concealed its identity, albeit perhaps unintentionally, by virtue of its neglect of the hole such that its ownership could not be identified upon inspection.

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