Kentucky Court of Appeals Decisions (Minutes) for December 20, 2013 (Nos. 1118-1134)

Jefferson

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The Court of Appeals had a light week with 17 cases posted with one of those decisions designated for publication.  BTW, I consider any week with less than 20 cases a  “light” week.

For a copy of this week’s minutes posted at the AOC with a listing of each decision (published and not to be published) with links to the full text of each decision, then click here.

Click here for complete list of all archived Court of Appeals Minutes that you can download from the Administrative Office of the Courts’ web site.

Short summary of the published decisions for this week are (click on the link for the full text of the decision from AOC):

1129.  Civil Procedure (misjoinder, leave to amend)
Hughes v. Lawrence-Hightchew
COA Published 12/20/2013
Vacating and Remanding
COMBS, JUDGE: Teresa Hughes appeals from an order of the Campbell Circuit Court dismissing her personal injury action. The court granted the defendants’ motion to dismiss for misjoinder without leave to amend her complaint. After our review, we vacate and remand for further proceedings. 

Here are selected “not to be published” tort, insurance, and civil procedure decisions, in addition to any of the published cases:

1123.  Summary Judgment.  Guardian Ad Litem for Prisoner Requirements.
Jarboe vs. Morris, Garlove, Waterman and Johnson PLLC
COA, NPO,  12/20/2013
Affirming
TAYLOR, JUDGE: Ron Jarboe brings this appeal from a June 15, 2012, order of the Jefferson Circuit Court, denying his motion to set aside the December 27, 2011, summary judgment in favor of Morris, Garlove, Waterman & Johnson, PLLC. We affirm.

Appellant specifically asserts that a judgment could not be entered in this action until the appointed guardian ad litem (GAL) made a defense or filed a report pursuant to CR 17.04. Appellant emphasizes in his argument that the GAL did not file a report or make a defense; thus, appellant contends the circuit court committed reversible error by rendering summary judgment.

In the case sub judice, appellant was represented by counsel during the entire proceeding below. Shortly after the November 13, 2007, default judgment was entered, appellee agreed with appellant’s request to set aside the judgment. Thereafter, appellee waited until 2009 to file a motion for summary judgment upon the basis that appellant had not responded to discovery requests propounded years earlier in the litigation. Appellant then made his first request for appointment of a GAL on December 24, 2009, in response to the initial motion for summary judgment. When retained counsel informed the court that appellant was incarcerated in federal prison, the court honored counsel’s request for appointment of a GAL. Even though a GAL was appointed, the GAL failed to defend the action or file a report. Under the rule, the GAL was not required to take any action, given that appellant at all times was represented by counsel in the litigation. Appellee did not renew its motion for summary judgment until appellant was reportedly released from prison in August of 2011. Considering that appellant was represented by retained counsel throughout this entire proceeding and given the otherwise unique circumstances surrounding the appointment of the GAL, we do not believe appellant was entitled to the protections afforded under CR 17.04.

Simply stated, CR 17.04 is not applicable to the facts of this case. Appellant has not submitted any legal authority in support of his position nor can this Court find any case authority applicable to the circumstances of this case. Accordingly, we are of the opinion that the circuit court properly granted summary judgment.

1130.  Premises liability.  Jury question.
Searcy v. Double D Entertainm;ent Group, LLC
COA NPO 12/20/2013
Vacating and RemandingDIXON, JUDGE: In this premises liability action, Andrea Searcy appeals an order of the Daviess Circuit Court granting summary judgment in favor of Double D Entertainment Group, LLC and its associated business entities, Blind Parrot Catering, LLC, and Blind Parrot Pub & Grub, LLC (collectively “Appellees”).  

Viewing the evidence in a light most favorable to Searcy, there is a factual dispute regarding whether the sidewalk incline was an unreasonably dangerous condition because it was essentially “hidden” in the darkness and caused Searcy to fall. See id. Because disputed issues of fact exist, summary judgment was improper.

Because summary judgment was improper, we vacate the court’s order and remand for further proceedings. 

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