June 1, 2012 COA Minutes — Nos. 481-498 (18 decisions; 3 To Be Published)

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PUBLISHED DECISIONS OF COA:

483.  REAL PROPERTY. CHAMPERTY AND ADVERSE POSSESSION EXAMINED.
MCALPIN (PATRICIA TATUM), ET AL.
VS.
BAILEY (ELIZABETH C.), ET AL.
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
LAMBERT (PRESIDING JUDGE)
TAYLOR (CONCURS) AND DIXON (CONCURS)
2010-CA-001123-MR
2010-CA-001206-MR
TO BE PUBLISHED
FAYETTE

LAMBERT, JUDGE: This is an appeal and cross-appeal from a judgment holding that the appellees acquired title to a disputed strip of property under the doctrine of champerty and awarding compensatory damages to the trespassing parties for the value of the encroaching fence. After careful review, we affirm in part, reverse in part, and remand.

CHAMPERTY

BLACK’S LAW DICTIONARY defines champerty as “A bargain between a stranger and a party to a lawsuit by which the stranger pursues the party’s claim in consideration of receiving part of any judgment proceeds[.]” Black’s Law Dictionary 231 (6th Ed. 1990). Kentucky has codified the doctrine of champerty in Kentucky Revised Statutes (KRS) 372.070(1), which states, “Any sale or conveyance, including those made under execution, of any land, or the pretended right or title thereto, of which any other person has adverse possession at the time of the sale or conveyance, is void; but this section does not render void any devise of land in adverse possession.” The purpose of champerty is to “discourage litigation, by prohibiting one who has a doubtful title, and who is not willing to sue upon his title, from selling it to another, and thus encourage strife.” Perry v. Wilson, 183 Ky. 155, 208 S.W. 776, 779 (1919).

“A plea of champerty is available to a party only in defense of a claim and may never be invoked affirmatively to establish title to land. It is a defense within the class often described as a shield rather than a sword ….” Ballard v. Moss, 268 S.W.2d 35, 38 (Ky. 1954) (internal citation omitted). See also Royse v. Kentucky Female Orphan School, 313 Ky. 428, 231 S.W.2d 704, 705 (1950).

The Kentucky Supreme Court explained the doctrine of champerty as follows:

[A] conveyance of lands held adversely by a third person is champertous, it is void as to the person in possession and his privies, even though the conveyance is made in good faith and for a valuable consideration. As against the person in adverse possession, no right or title is passed or transmitted from the grantor to the grantee by the deed; title remains in the grantor, and may be subsequently purchased from him by the adverse possessor during the pendency of a suit against such possessor by the grantor for the benefit of the champertous grantee.  Id. at 830-31. Because the Little Church of Jesus Christ adversely possessed the property at the time of the transfer, the Court voided the sale of the property to Zion Tabernacle with the finding that the attempted conveyance was champertous. But, the Court explicitly stated, “However, it has not been shown that the adverse possession by appellees has run for the statutory period and thus the title does not vest in the adverse possessors.” Id. (Emphasis added).

ADVERSE POSSESSION:

“In order to establish title through adverse possession, a claimant must show possession of disputed property under a claim of right that is hostile to the title owners interest. Further, the possession must be shown to be actual, open and notorious, exclusive, and continuous for a period of fifteen years.” Phillips v. Akers, 103 S.W.3d 705, 708 (Ky. App. 2002) (citing Tartar v. Tucker, 280 S.W.2d 150, 152 (Ky. 1955)).

The Baileys argue that their possession of the six-foot strip of land was hostile, actual, and under a claim of right because they believed the property belonged to them and put a fence up enclosing the property. Further, they landscaped the property and installed an arbor and deck for a hot tub on the disputed property. The Baileys argue that “hostility” does not mean the McAlpins had to have known they were taking the property and that hostility can instead happen by mistake. See Tarter, supra. The Baileys argue that the fence and improvements rendered their possession open and notorious, and exclusive because the McAlplins and the Tatums had notice of their possession and could not get to the property without removing the fence, etc.

The permissible ways to stop the accrual of a claim to ownership by adverse possession are to retake possession of the property or file suit before the statute of limitations runs. Petty v. Petty, 265 Ky. 15, 95 S.W.2d 1122, 1124 (1936). The McAlpins and the Tatums argue that the only way for them to retake possession was to tear down the Baileys’ fence, which they argue was an “encroachment” on their property.

In Reed v. Mercer County Fiscal Court, 220 Ky. 646, 295 S.W. 995 (1927), the Court was asked to review an award of damages for the destruction of a fence that was not an encroachment. The Court held that the property owner was entitled to the value of his fence at the time of the injury, citing the principle that one who has negligently destroyed the property of another is required to compensate the injured person for the fair value of the property.

485. STATUTES OF LIMITATION.  MEDICAL NEGLIGENCE (CONTINUOUS TREATMENT AND TOLLING ADDRESSED)
LITSEY (DEVON)
VS.
ALLEN (JACK), ET AL.
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
DIXON (CONCURS) AND VANMETER (CONCURS)
2010-CA-001777-MR
TO BE PUBLISHED
JEFFERSON

LAMBERT, SENIOR JUDGE: Devon Litsey appeals from a summary judgment of the Jefferson Circuit Court dismissing her claims against Jack Allen, M.D., his medical practice Gray & Allen, P.S.C. (collectively, “Dr. Allen”) and his insurance carrier, State Farm Fire and Casualty Company (State Farm). Litsey argues that the trial court erred by holding that her claims for malpractice and intentional infliction of emotional distress were barred by the one-year statute of limitations in KRS 413.140(1)(e). We agree with the trial court’s conclusion that Litsey’s claim for malpractice was not tolled following her last visit with Dr. Allen, and that her claim for intentional infliction of emotional distress was subject to the one-year limitation period.

With respect to the medical malpractice claim, KRS 413.140(1)(e) provides that “[a]n action against a physician, surgeon, dentist, or hospital licensed pursuant to KRS Chapter 216, for negligence or malpractice[]” “. . . shall be [brought] within one (1) year after the cause of action accrued[.]” Litsey admitted that her last visit with Dr. Allen occurred on August 27, 2007, more than one year prior to the filing of her claim. However, after her last visit, Litsey continued to have her prescriptions filled through Dr. Allen’s office until January of 2008. In addition, Litsey scheduled an appointment with Dr. Allen for January 17, 2008, but she did not keep the appointment. Litsey contends that the one-year limitation period was tolled by the “continuous course of treatment” doctrine and that the action filed in December of 2008 was timely.

In Harrison v. Valentini, 184 S.W.3d 521 (Ky. 2005), the Kentucky Supreme Court applied continuous treatment rule to medical malpractice cases. As applied, the “continuous course of treatment doctrine” provides that “the statute of limitations is tolled as long as the patient is under the continuing care of the physician for the injury caused by the negligent act or omission.” Id. at 524. (Footnote omitted). Since Litsey remained a patient of Dr. Allen’s until at least January of 2008, she maintains that her action filed in December of 2008 was timely.

In this case, Litsey alleges that Dr. Allen made inappropriate sexual advances to her on her last two office visits, March 29, 2007 and August 27, 2007. Litsey contends that her reliance on Dr. Allen for Xanax prescriptions impaired her ability to exercise proper judgment about her course of treatment and his misconduct. However, in her deposition, Litsey testified that she had “no doubt” that Dr. Allen’s conduct was inappropriate at the time she left his office on August 27, 2007. Although Litsey continued to have her prescriptions renewed by Dr. Allen after that date, she does not allege that she was relying on him to correct the consequences of poor treatment. This is not a case for the continuous course of treatment doctrine, and there was no tolling of the statute of limitations.

493.  ELECTIONS. VOTER REFERENDUM REQUIREMENTS.
CITY OF TAYLORSVILLE
VS.
SPENCER COUNTY FISCAL COURT, ET AL.
OPINION REVERSING
LAMBERT (PRESIDING JUDGE)
COMBS (CONCURS) AND STUMBO (CONCURS)
2011-CA-001096-MR
TO BE PUBLISHED
SPENCER

LAMBERT, SENIOR JUDGE: The City of Taylorsville, Kentucky, appeals from two orders of the Spencer Circuit Court which address the validity of a petition for a voter referendum on a Charter County Government pursuant to KRS 67.830. The trial court found that the Petition met the requirements of the statute and that the signatures supporting it were properly verified. The trial court also rejected the City’s challenges to the constitutionality of KRS 67.830. We conclude that the wording of the Petition did not precisely conform to the language of the statute and thus improperly limited the authority of the commission to be created pursuant to the statute. Since the Petition did not strictly comply with the requirements of KRS 67.830, we conclude that it must be rejected without reaching the constitutional issues raised by the City.

IF YOU WANT

PUBLISHED TORT DECISION:

SEE. Litsey v. Allen, above, Published Decisions, re application of one year SOL in medical negligence and when continuous treatment exception was not tolled.

NOT PUBLISHED TORT DECISIONS: None this week.

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