July 27, 2012 COA Minutes — Nos. 624-654 (31 decisions; 6 Published)

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PUBLISHED DECISIONS OF COA:

629.  CONSTRUCTIVE TRUST.  PAROLE EVIDENCE.  FAILURE TO STATE A CLAIM.  UNCLEAN HANDS.
ROSE (LINDA)
VS.
ACKERSON (JON), ET AL.
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
ACREE (CONCURS) AND STUMBO (CONCURS)
2010-CA-001094-MR
TO BE PUBLISHED
JEFFERSON^

LAMBERT, SENIOR JUDGE: Linda Webb, appeals from the May 17, 2010, Jefferson Circuit Court findings of fact, conclusions of law, and order of final judgment. That judgment awarded the proceeds of an annuity, valued at $30,734.89, to Sherry Graff and Jon Ackerson on behalf of the estate of William Bale. We affirm.

632.  JURISDICTION. CHURCH MATTERS.
KIRBY (JIMMY)
VS.
LEXINGTON THEOLOGICAL SEMINARY
OPINION AFFIRMING
CAPERTON (PRESIDING JUDGE)
ACREE (CONCURS WITH RESULT AND FILES SEPARATE OPINION) AND LAMBERT (CONCURS)
2010-CA-001798-MR
TO BE PUBLISHED
FAYETTE

CAPERTON, JUDGE: Jimmy Kirby appeals from the Fayette Circuit Court’s summary judgment order dismissing all claims asserted by Kirby against his former employer Lexington Theological Seminary (hereinafter “Seminary”), including breach of contract and request for declaratory judgment that his separation of employment resulted in a breach of contract, breach of implied duty of good faith and fair dealing, and race discrimination. After thoroughly considering the parties’ arguments, the record, and the applicable law, we find no error in the Fayette Circuit Court’s grant of summary judgment. Accordingly, we affirm.

636.  JURISDICTION.  CHURCH MATTERS.
KANT (LAURENCE H.)
VS.
LEXINGTON THEOLOGICAL SEMINARY
OPINION AFFIRMING
MOORE (PRESIDING JUDGE)
ACREE (CONCURS AND FILES
SEPARATE OPINION) AND KELLER
(DISSENTS AND FILES SEPARATE
OPINION)
2011-CA-000004-MR
TO BE PUBLISHED
FAYETTE

MOORE, JUDGE: Laurence H. Kant appeals the Fayette Circuit Court’s order dismissing his complaint against Lexington Theological Seminary. After a careful review of the record, we affirm because the “ecclesiastical matters rule” and the “ministerial exception” are applicable to this case.

This case was brought by Laurence H. Kant against Lexington Theological Seminary (LTS) alleging breach of contract and breach of the implied duty of good faith and fair dealing after LTS terminated Kant’s employment. Kant was a tenured faculty member at LTS. LTS maintains Kant’s employment was terminated after it restructured its curriculum and that as a religious institution, its action was protected by the First Amendment of the United States Constitution.

639. EVIDENCE.  KASPER DATA.
DOUGLAS (VERONICA)
VS.
COMMONWEALTH OF KENTUCKY
OPINION REVERSING AND
REMANDING
MOORE (PRESIDING JUDGE)
STUMBO (CONCURS) AND VANMETER
(DISSENTS AND FILES SEPARATE
OPINION)
2011-CA-000066-MR
TO BE PUBLISHED
LAWRENCE

MOORE, JUDGE: Veronica Douglas appeals the Lawrence Circuit Court’s judgment convicting her of second-degree manslaughter and sentencing her to serve seven years of imprisonment. After a careful review of the record, we reverse because evidence concerning Douglas’s hydrocodone prescriptions should not have been admitted. We remand for a new trial.

STD OF REVIEW:

“We review the admission of evidence for an abuse of discretion.” Wiley v. Commonwealth, 348 S.W.3d 570, 580 (Ky. 2010). “An abuse of discretion arises when the court’s decision is arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Id.

 

640.  STATUTE OF LIMITATIONS.  NO FAULT ACT.  LAST PIP PAYMENT.  MEDPAY VS. PIP AND REPARATIONS OBLIGOR’S DESIGNATION.
STULL (MELISSA)
VS.
STEFFEN (RONALD), ET AL.
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
TAYLOR (CONCURS) AND THOMPSON
(CONCURS)
2011-CA-000229-MR
TO BE PUBLISHED
BRACKEN^

KELLER, JUDGE: Melissa Stull (Stull) appeals from the trial court’s summary judgment in favor of Ronald Steffen (Steffen), Harper Cline (Cline), Steve McClanahan (McClanahan), and Ronnie Winkle (Winkle) (collectively referred to herein as the Appellees). On appeal, Stull argues that Steffen’s insurer, Kentucky Farm Bureau (Farm Bureau), made a disbursement under the medical payment (MedPay) provision of the policy prior to exhausting Stull’s entitlement to personal injury protection (PIP) benefits, thereby extending the statute of limitations. The Appellees argue that PIP benefits were exhausted prior to any disbursement of MedPay benefits and, even if that is not the case, payment of MedPay benefits cannot extend the statute of limitations. Having reviewed the record, we affirm.

The trial court granted summary judgment finding that, while payment of PIP benefits extends the statute of limitations, disbursement of MedPay benefits does not. Furthermore, the court found that, even if Farm Bureau’s disbursement of MedPay benefits amounted to payment of PIP benefits, the January 24, 2006, MedPay disbursement brought the total amount paid to more than $10,000. Thus, Stull’s statute of limitations began to run, at the latest, on January 24, 2006, which still made her complaint untimely. Stull appealed from this judgment.

In this case, Farm Bureau’s internal designation of benefit category is essentially irrelevant. Based on the policy language, the first $10,000 paid as medical expenses and wages amounted to PIP benefits. Any payments made thereafter amounted to MedPay. This holding is not only consistent with Lawson, but it also should allay any fears that insurers will be able to “game the system” by arbitrarily designating payments as PIP or MedPay. Every dollar that could be designated as either PIP or MedPay will be deemed to be PIP until such time as PIP is exhausted. Every dollar thereafter will be deemed to be MedPay. Therefore, Farm Bureau exhausted PIP when it made the $223.00 payment on January 24, 2006, and Stull’s statute of limitations began to run on that date.

647. SUMMARY JUDGMENT REVERSED. QUALIFIED OFFICIAL IMMUNITY. CLAIMS PRECLUSION.
GIBSON (CARLA)
VS.
HICKS (DONNA K.)
OPINION REVERSING AND
REMANDING
THOMPSON (PRESIDING JUDGE)
LAMBERT (CONCURS) AND VANMETER
(CONCURS)
2011-CA-001090-MR
TO BE PUBLISHED
PERRY^

THOMPSON, JUDGE: Carla Gibson appeals from an order of the Perry Circuit Court denying her motion for summary judgment in an action filed against her by Donna K. Hicks alleging negligence for Gibson’s failure to initiate an investigation under the Kentucky Adult Protection Act, Kentucky Revised Statutes (KRS) Chapter 209. The issues are: (1) whether the action is precluded by the doctrine of res judicata; (2) whether Gibson owed a common law duty to Hicks; (3) whether Gibson is entitled to qualified official immunity; and (4) whether Gibson is entitled to statutory immunity. We conclude that Gibson was erroneously denied summary judgment.

 

652.  MOTION TO INTERVENE.  MATTER OF RIGHT DISCUSSED.
HAZEL ENTERPRISES, LLC
VS.
COMMUNITY FINANCIAL SERVICES
BANK, ET AL.
OPINION AFFIRMING
MOORE (PRESIDING JUDGE)
DIXON (CONCURS) AND THOMPSON
(CONCURS)
2011-CA-002060-MR
TO BE PUBLISHED
CALLOWAY^

BEFORE: DIXON, MOORE, AND THOMPSON, JUDGES.MOORE, JUDGE: Hazel Enterprises, LLC appeals the order of the Calloway Circuit Court denying its motion to intervene. After a careful review of the record, we affirm.

The sole issue on appeal is whether the circuit court erred when it denied Hazel’s motion to intervene as a matter of right. Intervention as a matter of right is permitted:
Upon timely application . . . when the applicant claims an interest relating to the property or transaction which is the subject of the action and is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest . . . .
CR 24.01(1)(b) (emphasis added). Thus, intervention is only permitted upon a timely motion. Id; see Carter, 170 S.W.3d at 407-09.
A court may consider the following factors to determine whether a motion to intervene was timely: “‘(1) [T]he point to which the suit has progressed; (2) the purpose for which intervention is sought; (3) the length of time preceding the application during which the proposed intervenor knew or reasonably should have known of his interest in the case; (4) the prejudice to the original parties due to the proposed intervenor’s failure, after he or she knew or reasonably should have known of his or her interest in the case, to apply promptly for intervention; and (5) the existence of unusual circumstances militating against or in favor of intervention.’” Carter, 170 S.W.3d at 408 (quoting Grubbs v. Norris, 870 F.2d 343, 345 (6th Cir. 1989)).
Although post-judgment intervention is not strictly forbidden, it is widely within the discretion of the circuit judge. Arnold v. Commonwealth, 62 S.W.3d 366, 369 (Ky. 2001). Timeliness is a question of fact, which generally should be left to the circuit court. Ambassador College v. Combs, 636 S.W.2d 305, 307 (Ky. 1982) (citing Dairyland Ins. Co. v. Clark, 476 S.W.2d 202, 203 (Ky. 1972)). A “party wishing to intervene after final judgment has a ‘special burden’ to justify the untimeliness.” Arnold, 62 S.W.3d at 369 (quoting Monticello Electric Plant Bd. v. Board of Educ. of Wayne County, 310 S.W.2d 272, 274 (Ky. 1958)).

In the case sub judice, Hazel did not acquire any rights with respect to the certificate of delinquency until the final confirmation of sale and order of distribution had been entered. Although it is not a part of the record on appeal, the Calloway Master Commissioner and Community Bank assert that a lis pendens was filed with the Calloway County Clerk apprising all parties of a pending foreclosure action, which suggests that Hazel should have been aware that the action was pending. The circuit court also observed that a simple inspection of the county records would have revealed the pendency of this action.

TORT REPORT  FOR PUBLISHED/NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

IF YOU WANT

PUBLISHED: 

  • Douglas v. Commonwealth, COA, Pub., 7/27/2012
    Evidence. Kaspar.
    Evidence of hydrocodone prescriptions should not have been admitted resulting in reversal of conviction.
  • Stull v. Steffen, COA, Pub., 7/27/2012
    Statute of Limitations.
    Date of last pip payment is date upon which statute of limitations is calculated.  Not med-pay, and not even if reparations obligor mistaken calls the med-pay a pip payment contrary to the policy language.
  • Gibson v. Hicks, COA, Pub., 7/27/2012
    Defendant was erroneously denied summary judgment on claims against her for failure to initiate investigation under Ky Adult Protection Act.
  • Hazel Enterprises v. Community Financial Services, COA, Pub. 7/27/2012
    Civil Procedure, Motion to Intervene as matter of right.

NOT PUBLISHED:

625.  SECTION 1983 SUIT.  EXCESSIVE FORCE CLAIM AGAINST SHERIFF.
PRIVETTE (BOBBY)
VS.
KENTON COUNTY, KENTUCKY, ET AL.
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
COMBS (DISSENTS AND FILES SEPARATE OPINION) AND VANMETER (CONCURS)
2010-CA-000446-MR
NOT TO BE PUBLISHED
KENTON

LAMBERT, SENIOR JUDGE: Bobby Privette appeals from a summary judgment by the Kenton Circuit Court dismissing his federal and state-law claims against Kenton County, Kentucky, Kenton County Jailer Terry Carl, and Deputy Jailers Scott Colvin and Wernher2 Stilt. He argues that the trial court erred by dismissing his claims arising out of a use of excessive force by former Deputy Jailer Michael Stokes. We agree with the trial court that Privette failed to establish a cause of action for violation of his rights under 42 U.S.C. § 1983, and that the individual defendants were entitled to qualified official immunity from Privette’s state-law claims. Hence, we affirm.

635.  TORTS.  THIRD PARTY INDEMNITY.
GREENWELL (JOSEPH D.)
VS.
LOWE’S HOME CENTERS, INC., ET AL.
OPINION AFFIRMING
TAYLOR (PRESIDING JUDGE)
LAMBERT (CONCURS) AND NICKELL (CONCURS)
2010-CA-002074-MR
NOT TO BE PUBLISHED
BOYLE

TAYLOR, JUDGE: Joseph D. Greenwell brings this appeal from an October 26, 2010, Order of the Boyle Circuit Court dismissing his third-party indemnity claim against Lowe’s Home Centers, Inc. (Lowe’s). We affirm.

The facts that led to Greenwell filing a third-party complaint against Lowe’s are as follows. On October, 28, 2006, Greenwell’s vehicle struck a vehicle driven by Amy Barlow in Danville, Kentucky. Barlow suffered serious injuries as a result of the collision. Barlow subsequently filed a complaint in the Boyle Circuit Court against Greenwell. Therein, Barlow alleged that Greenwell ran a red light causing the collision between their vehicles. The collision occurred at an intersection that provided access to Lowe’s parking lot. [Greenwell then filed third-party complaint against Lowes contending]that Lowe’s negligently installed the traffic light by failing to install a tether thereupon and that the wind caused the signal heads on the traffic device to swing, resulting in the obstruction of the traffic light from his view at the time of the accident. Under these facts, Greenwell maintains that Lowe’s was the active tortfeasor, and he was the passive tortfeasor. Thus, Greenwell claims entitlement to indemnity from Lowe’s.

Viewing the facts most favorable to Greenwell, the absence of a tether on the traffic light may have been a contributing cause of the accident, and Lowe’s may have been negligent in so constructing the traffic light. If so, both Lowe’s and Greenwell could be considered tortfeasors in pari delicto or active tortfeasors. See City of Louisville v. Louisville Ry. Co., 156 Ky. 141, 160 S.W. 771 (1913). However, under no scenario of provable facts would Greenwell’s purported negligence be degraded to passive thus entitling him to indemnity. See id.

Accordingly, we are of the opinion that the circuit court properly rendered summary judgment dismissing Greenwell’s indemnity claim against Lowe’s.

641. APPEAL UNTIMELY.  AMENDED JUDGEMENT.  CLERICAL ERRORS.
BENEDICT (JASON R.)
VS.
HYDEN (LORA JANE)
OPINION AND ORDER DISMISSING
VANMETER (PRESIDING JUDGE)
MOORE (CONCURS) AND STUMBO (CONCURS)
2011-CA-000370-MR
NOT TO BE PUBLISHED
JOHNSON

VANMETER, JUDGE: Jason Benedict appeals from the findings of fact, conclusions of law, and judgment of the Johnson Circuit Court, Family Division. Because Jason failed to file a timely notice of appeal, this appeal is dismissed.

In this case, the trial court sua sponte ordered in its amended judgment that the marriage of the parties was “hereby dissolved and each party is restored to the status of an unmarried person.” The amended judgment did not alter the substance of the original judgment; the court simply clarified its original judgment. This clarification is analogous to correction of a clerical error. Indeed, the original judgment spoke to the dissolution of the marriage and restored Lora to her maiden name. As a result, the time for perfecting the appeal dates from entry of the original judgment on January 18, 2011. Jason’s notice of appeal, while filed within thirty days from entry of the amended judgment, was not filed within thirty days from entry of the original, final judgment. Since the filing of the notice of appeal was outside the thirty-day time limit set forth in CR 73.02, we lack jurisdiction to consider the appeal and it must be dismissed.

Appeal No. 2011-CA-000370 is hereby dismissed.

643.  ATTORNEY CLIENT.  FORFEITURE OF ATTORNEY FEES FOR VIOLATIONS OF RULES OF PROFESSIONAL RESPONSIBLITY ADDRESSED.
ROSE (JAMES), ET AL.
VS.
WINTER, YONKER & ROUSSELLE, P.S.C., ET AL.
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
ACREE (CONCURS) AND CLAYTON (CONCURS)
2011-CA-000613-MR
NOT TO BE PUBLISHED
JEFFERSON

KELLER, JUDGE: The Appellants, James Rose (James) and Christopher Rose (Christopher), appeal from an order of the Jefferson Circuit Court dismissing their complaint against the Appellees, Winters, Yonker & Rousselle, P.S.C.; Bill Winters; Marc Yonker; and Donald Kannady. For the following reasons, we affirm.

FACTS
The Appellants filed a complaint against their former attorneys, the Appellees, seeking forfeiture of all attorney fees paid by them to the Appellees for alleged violations of the Kentucky Supreme Court Rules of Professional Conduct. They also sought class certification for similarly situated former clients of the Appellees.

On appeal, the Appellants argue that the trial court erred when it concluded that it lacked jurisdiction to determine whether the Appellees illegally or unethically solicited clients. Specifically, they argue that SCR 3.130(7.10) authorizes a client to file a civil suit against their attorney for recovery of all fees when the attorney illegally or unethically solicits them as a client. We disagree.

In this case, there were no allegations made in the complaint that the Appellees were negligent in handling the Appellants’ personal injury claims or in negotiating the settlements. Instead, the Appellants’ claims are based on violations of the Kentucky Supreme Court Rules of Professional Conduct. We are unaware of any authority supporting this type of cause of action. In fact, in Hill v. Willmott, 561 S.W.2d 331, 333-34 (Ky. App. 1978), this Court addressed a similar issue and concluded that the Rules of Professional Conduct do not create a private cause of action.

The sole remedial method for a violation of the Code is the imposition of disciplinary measures after a hearing by the Board of Governors of the State Bar Association for any “ . . . charges brought under this code as well as charges for other unprofessional or unethical conduct calculated to bring the bench and bar into disrepute.”
See R.A.P. 3.130. Nowhere does the Code of Professional Responsibility or the Rules attempt to establish standards for civil liability of attorneys for their professional negligence. This is not to say that a cause of action cannot be asserted for negligence on the part of an attorney. All we are holding is that the duty set forth in the Code and the Rules establishes the minimum level of competence for the protection of the public and a violation thereof does not necessarily give rise to a cause of action.

Id.

We note that the Preamble to SCR 3.130 also indicates that the Kentucky

Supreme Court Rules of Professional Conduct do not create a private right of action. The Preamble states the following:

XXI.

Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. In addition, violation of a Rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. Nevertheless, since the Rules do establish standards of conduct by lawyers, a lawyer’s violation of a Rule may be evidence of breach of the applicable standard of conduct.

(Emphasis added). Furthermore, as stated in Grigsby v. Kentucky Bar Ass’n, 181 S.W.3d 40, 42 (Ky. 2005), the Supreme Court of Kentucky “has the sole authority to admit and discipline attorneys.”

The Appellants argue that, despite the holding in Hill and the language in the Preamble, SCR 3.130(7.10) specifically provides for a civil action for recovery in this case. SCR 3.130(7.10) provides:

If a lawyer illegally or unethically solicited a client for which compensation is paid or payable, all fees arising from such transaction shall be deemed waived and forfeited and shall be returned to the client. A civil action for recovery of such fees may be brought in a court of competent jurisdiction.

(Emphasis added).

As correctly noted by the trial court, the language of SCR 3.130(7.10)appears to presuppose that the appropriate disciplinary agency must first determine whether the lawyer illegally or unethically solicited a potential client in violation of SCR 3.130(7.09). Only after making the determination of unethical or illegal solicitation by the appropriate disciplinary agency does the rule make provision for forfeiture of fees under SCR 3.130(7.10). Therefore, we conclude that, while the rule provides for a cause of action to recover fees, it does not provide a cause of action to determine whether a solicitation in this case was illegal or unethical.

Finally, we note that the cases cited by the Appellants in support of their argument that Kentucky courts routinely decide whether ethical violations have occurred are distinguishable from this case. In Shoney’s, Inc. v. Lewis, 875 S.W.2d 514 (Ky. 1994), the issue was whether communications of plaintiff’s counsel with Shoney’s employees with knowledge that Shoney’s was represented by counsel was grounds for disqualification. The Shoney’s employees did not assert a private right of action for the alleged ethical breach by plaintiff’s counsel. Thus, Lewis is inapplicable to the instant case.

In Baker v. Shapero, 203 S.W.3d 697 (Ky. 2006), plaintiff’s counsel brought an action against his former client to enforce an attorney’s lien arising out of counsel’s representation of plaintiff under a contract that had been terminated by plaintiff prior to a settlement. The action was for enforcement of contractual rights and did not involve the Kentucky Supreme Court Rules of Professional Conduct. Therefore, Baker is also inapplicable to the instant case.

Appellants also cite to Bonar v. Waite, Schneider, Bayless & Chesley, No. 2007-CA-001374-MR, 2009 WL 3336065 (Ky. App. Oct. 16, 2009). Because the Supreme Court of Kentucky granted discretionary review in that case, it is not final. CR 76.28(4). Thus, the Appellants improperly cite to it, and we need not address it. However, we do note that the Bonar case involved a dispute between attorneys as to whether they were entitled to attorney fees. It was not a private action to enforce provisions of the Kentucky Supreme Court Rules. Therefore, it is inapplicable to the instant case.

CONCLUSION
For the foregoing reasons, we affirm the order of the Jefferson Circuit Court.

ALL CONCUR.

644.  INSURANCE.  DUTY TO DEFEND. “OCCURRENCE”.
RYAN (JAMES MATT)
VS.
ACUITY, A MUTUAL INSURANCE COMPANY
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
KELLER (CONCURS) AND TAYLOR (CONCURS)
2011-CA-000653-MR
NOT TO BE PUBLISHED
GRANT

THOMPSON, JUDGE: James Matt Ryan appeals from a summary judgment of the Grant Circuit Court finding that Acuity, a Mutual Insurance Company, did not have a duty to defend or indemnify for property damage caused by its insureds, Dan Martin, Dan Martin Construction, and Romart Development, LLC (collectively Martin) and dismissing Ryan’s third-party complaint against Acuity.

We agree that, under Kentucky law, Ryan’s claims against Martin are not “occurrences” under the Acuity commercial general liability (CGL) policy terms and, therefore, Acuity has no duty to defend or indemnify. Consequently, as a matter of law, Ryan’s claims against Acuity were properly dismissed.1

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