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PUBLISHED DECISIONS OF COA:
546. REVENUE AND TAXATION.
VIRGIN MOBILE USA, L.P.
COMMONWEALTH OF KENTUCKY ON BEHALF OF, ET AL.
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
CAPERTON (PRESIDING JUDGE)
NICKELL (CONCURS) AND LAMBERT (CONCURS)
TO BE PUBLISHED
CAPERTON, JUDGE: The Appellant and Cross-Appellee, Virgin Mobile U.S.A., L.P., appeals from a judgment of the Jefferson Circuit Court that applied a tax to its prepaid wireless business. On appeal, Virgin Mobile argues that the lower court wrongly applied the KRS1 65.7629 Commercial Mobile Radio Service service charge to Virgin Mobile for periods prior to the July 2006 statutory amendments which extended the tax to the prepaid wireless service. Appellee and Cross- Appellant, the Commonwealth of Kentucky on behalf of the Kentucky Commercial Mobile Radio Service Emergency Telecommunications Board (hereinafter “CMRS”) appeals from the court’s denial of prejudgment interest to the Board. Having reviewed the record, the arguments of the parties, and the applicable law, we affirm in part, reverse in part, and remand this matter for additional proceedings not inconsistent with this opinion.
550. BUSINESS LAW. DERIVATIVE CLAIMS.
WATKINS (LOWRY R.), JR. ET AL.
STOCK YARDS BANK & TRUST CO., ET AL.
KELLER (PRESIDING JUDGE)
ACREE (CONCURS) AND CLAYTON (CONCURS)
TO BE PUBLISHED
KELLER, JUDGE: Lowry R. Watkins (Watkins) appeals from an order of the Jefferson Circuit Court dismissing his individual claims against Stock Yards Bank & Trust Company (Stock Yards Bank). Watkins also appeals from an order of the Jefferson Circuit Court granting the Appellees’ motions for summary judgment and dismissing his derivative claims against the Appellees. The Cross-Appellants, Stock Yards Bank, John S. Osborn, Jr. (Osborn), E. Gordon Maynard (Maynard), and Beargrass Corporation (Beargrass), cross-appeal from an order of the Jefferson Circuit Court denying their motions for attorneys’ fees. For the following reasons, we affirm.
This action revolves around the sale of the Oxmoor Center (Oxmoor), a shopping mall located in Louisville, Kentucky. Oxmoor was owned by Beargrass, a Kentucky corporation. From 1999 until 2003, the Hocker Appellees managed Oxmoor. In 2003, Beargrass sold Oxmoor to the Hocker Appellees for $72.4 million (the Sale) after the directors and shareholders of Beargrass unanimously approved the Sale. Seventeen months after the Sale, and without making any significant improvements, the Hocker Appellees resold Oxmoor for $123 million.
The Beargrass shareholders consist of three family trusts: (1) the Thomas W. Bullitt Trust (the TWB Trust), holder of 54% of the shares; (2) the Nora Iasigi Bullitt Trust (the NIB Trust), holder of 40% of the shares; and (3) the Katherine E. Bullitt Revocable Trust (the KEB Trust). Stock Yards Bank acted as trustee of the TWB Trust. Watkins is one of the four living beneficiaries of the NIB Trust. At the time of the Sale, the Trustee of the NIB Trust was National City Bank of Kentucky (National City). In late 2004, National City was replaced as trustee of the NIB Trust by Larkin Fore (Fore).
According to an affidavit submitted by Fore, after he became trustee of the NIB Trust, Watkins asked him to investigate the price differential between the two sales of Oxmoor and demanded that Fore commence a shareholder derivative action. Fore conducted an investigation and consulted with the other beneficiaries of the NIB Trust. The other beneficiaries did not want to pursue any action. Based upon his investigation and the wishes of the other beneficiaries, Fore decided not to bring the shareholder derivative action sought by Watkins.
551. TORTS. DEFENSES (qualified official immunity).
SARAH LAWRENCE, AS ADMINISTRATOR, ET AL.
GEORGE (ALLEN), ET AL.
VANMETER (PRESIDING JUDGE)
DIXON (CONCURS) AND LAMBERT (CONCURS)
TO BE PUBLISHED
VANMETER, JUDGE: Sarah Lawrence, as administrator of the estate of Riley Lawrence, and Angela Wadlington, as administrator of the estate of Claudia Wadlington (hereinafter collectively referred to as “the estates”) appeal from the Jefferson Circuit Court’s order granting summary judgment in favor of Officer Allen George. For the following reasons, we affirm.
Finch remained an absconder with no contact with the Division of Probation and Parole until July 25, 2008, when he struck two minor children, Claudia Wadlington and Riley Lawrence, with a car while fleeing from the police. Angela Wadlington, Claudia’s parent, was also struck but she survived. Finch was Convicted of murder (two counts) and assault. The estates filed the underlying wrongful death action against Finch and Officers George, Jennifer King and Evan Roach (hereinafter collectively referred to as “the officers”) who were employed by the Department of Corrections, Division of Probation and Parole, at the time of the incident. The estates alleged that but for the officers’ failure to fulfill their statutory duties in supervising and arresting Finch during the fifteen months prior to the incident, Finch would not have killed Claudia and Riley. The officers moved for summary judgment, which the trial court granted on the basis that they owed no duty to the victims, the harm was not foreseeable, Finch’s actions were a superceding cause of the incident, and the officers were not negligent. The estates now appeal the court’s granting of summary judgment in favor of Officer George.
The estates argue that the trial court erred by granting Officer George summary judgment on the claim that he negligently carried out his duties. Officer George asserts that he is entitled to qualified official immunity for any actions or omissions occurring while serving in his capacity as a parole officer and therefore he is entitled to judgment as a matter of law on the issue of his individual liability. While the trial court did not rule on the issue of qualified official immunity, though Officer George raised it, we agree with Officer George and hold that he is entitled to qualified official immunity under the circumstances of this case.
Public officers and employees are entitled to qualified official immunity for negligent acts or omissions when the act or omission was (1) a discretionary act or function, (2) made in good faith, and (3) within the scope of the employee’s authority. Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001). Discretionary acts are described as “those involving the exercise of discretion and judgment, or personal deliberation, decision, and judgment[.]” Id. (citation omitted). Conversely, ministerial acts or functions, for which qualified official immunity is not afforded, require “only obedience to the orders of others, or when the officer’s duty is absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts.” Id. (citation omitted). The determination of whether a particular act or function is discretionary or ministerial focuses on the dominant nature of the act or function and is inherently fact-sensitive. Haney v. Monsky, 311 S.W.3d 235, 240 (Ky. 2010). In the context of qualified official immunity, “‘[s]ummary judgments play an especially important role’, as the defense renders one immune not just from liability, but also from suit itself.” Id. (citations omitted).
In this case, the estates’ primary argument is that Officer George negligently performed his duties as they related to his supervision of Finch. Specifically, they claim that Officer George should have arrested Finch in 2007, upon discovering that he had violated the terms and conditions of parole, and that Officer George failed to investigate Finch’s parole violation in August 2006, when Finch was arrested for trafficking in a controlled substance and tampering with physical evidence. The estates also assert that Officer George failed to ensure that Finch was complying with the terms of his parole in other respects, such as refraining from visiting establishments that serve alcohol, notifying Officer George of address changes, paying child support, and working to obtain a GED. The estates charge Officer George with actual and constructive knowledge of Finch’s criminal history of drug trafficking, fleeing and evading the police, and various traffic- related offenses and claim that he should have supervised Finch accordingly.
TORT REPORT FOR PUBLISHED/NONPUBLISHED DECISIONS (MINUS WORKERS COMP):
IF YOU WANT
SEE, Lawrence v. George, PUB, COA, above re: qualified official immunity of probation officer against claim he negligently performed his duties allowing person back on the street who later killed appellant’s decedent in car collision.
549. TORTS. PREMISES LIABILITY “SLIP AND FALL”.
WHEELER (MATILDA), ET AL.
VANMETER (PRESIDING JUDGE)
ACREE (CONCURS) AND CAPERTON (CONCURS)
NOT TO BE PUBLISHED
VANMETER, JUDGE: This appeal and cross-appeal are taken from a summary judgment granted by the Marion Circuit Court to Brenda Fields in a slip-and-fall case. Because there was no genuine issue of material fact raised regarding the cause of the accident, we affirm.
Even if these statements constituted sufficient evidence to create a genuine issue of material fact regarding a breach of the duty to warn, there was absolutely no evidence of causation. Wheeler testified that she did not slip on the steps, but on the pavement at the bottom of the steps. There was no evidence that there was actually any ice or water on that area. In her deposition testimony, Wheeler stated that she did not know what caused her to fall, merely that her foot slipped. In Tharp v. Tharp, 346 S.W.2d 44 (Ky.1961), a summary judgment was affirmed under similar factual circumstances:
Appellant was the sole witness concerning the circumstances of his fall. Manifestly, all of his evidence on this phase of the case was before the court on the motion for a summary judgment, and there appeared to be no reasonable possibility of producing more or better evidence on this point . . . . Considering the undisputed facts and the statements of appellant that he saw nothing and did not know what caused him to fall, the motion for a summary judgment was properly sustained . . . .
Tharp, 346 S.W.2d at 46 (internal citations omitted).
In Wheeler’s case, neither she nor any witnesses could testify as to what caused her to slip, or to testify that there was ice in the area or that the area was slippery at the time the fall occurred.
Because there was no genuine issue of material fact concerning the causation of the accident, we affirm the summary judgment of the Marion Circuit Court. This determination renders moot the issues raised in the cross-appeal.