March 9, 2012 COA Minutes — Nos. 240-264 (25 decisions; 3 published)

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PUBLISHED DECISIONS OF COA:

240. CRIMINAL LAW
CORNELIUS (ESLEY DEE), JR.
VS.
COMMONWEALTH OF KENTUCKY
OPINION REVERSING
THOMPSON (PRESIDING JUDGE)
TAYLOR (CONCURS) AND LAMBERT (CONCURS)
2009-CA-001624 -MR
TO BE PUBLISHED
MCCRACKEN

THOMPSON, JUDGE: This case is on remand from the Kentucky Supreme Court, which vacated our prior opinion for reconsideration in light of Mullins v. Commonwealth, 350 S.W.3d 434 (Ky. 2011). Upon reconsideration, we reverse Esley Dee Cornelius, Jr.’s convictions for tampering with physical evidence and first-degree persistent felony offender. The facts leading to Cornelius’s convictions began with his involvement in a drug buy arranged by the McCracken County Sheriff’s Department.

254.  FAMILY LAW.  Modifying QDRO
WILLIS (LARRY)
VS.
WILLIS (RUBY)
OPINION REVERSING
LAMBERT (PRESIDING JUDGE)
TAYLOR (CONCURS) AND DIXON (CONCURS)
2010-CA-002328-MR
TO BE PUBLISHED
BOYLE

LAMBERT, JUDGE: Larry Willis has appealed from the November 30, 2010, order of the Boyle Family Court modifying a Qualified Domestic Relations Order (“QDRO”) entered on July 16, 2009. Because we hold that the family court abused its discretion in modifying the QDRO under the circumstances of this case, we must reluctantly reverse the family court’s order.

264. FAMILY LAW.  CUSTODY. JURISDICTION.
GOSSETT (JESSICA)
VS.
KELLEY (BRIAN SCOTT), ET AL.
OPINION VACATING
ACREE (PRESIDING JUDGE)
COMBS (CONCURS) AND LAMBERT (CONCURS)
2011-CA-001536-ME
TO BE PUBLISHED
HOPKINS

ACREE, JUDGE: On August 8, 2011, the Hopkins Family Court entered an order naming Shannon and Brian Kelley de facto custodians of the minor child of Jessica Gossett and Kenneth “Chip” Gossett and awarding the Kelleys custody. Although Jessica bases her appeal on matters of venue and adequacy of evidence, we are required to vacate the order because the Hopkins Family Court lacked subject matter jurisdiction in this case.

TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

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252.  CIVIL PROCEDURE
PILLAR DEVELOPMENTS, LLC, ET AL.
VS.
MAINSOURCE BANK, INC.
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
MOORE (CONCURS) AND NICKELL (CONCURS)
2010-CA-002318-MR
NOT TO BE PUBLISHED
JEFFERSON

THOMPSON, JUDGE: Pillar Developments, LLC (Pillar), Sutej S. Gill, and Deborah J. Gill (the Gills) appeal from a summary judgment of the Jefferson Circuit Court in favor of MainSource Bank, Inc. The issue presented by Pillar and the Gills is whether MainSource’s failure to respond to discovery requests in a separate action pending before the same circuit court precluded summary judgment. We hold that summary judgment was proper, but deny MainSource’s request that damages and costs be awarded pursuant to CR 73.02(4).

256.  TORT.  DOG ATTACKS/BITES.  LANDLORD AN OWNER?
FULLER (BRYAN), FATHER AND FRIEND OF ANDREW FULLER
VS.
BLAIR (JOANN), ET AL.
OPINION AFFIRMING
TAYLOR (PRESIDING JUDGE)
DIXON (CONCURS) AND LAMBERT (CONCURS)
2011-CA-000133-MR
NOT TO BE PUBLISHED
CAMPBELL

TAYLOR, CHIEF JUDGE: Bryan Fuller, father and friend of Andrew Fuller, (collectively referred to as Fuller) bring this appeal from a final order entered by the Campbell Circuit Court on December 15, 2010, which made final a summary judgment entered in favor of JoAnn Blair on September 10, 2010, dismissing all claims against her. For the reasons stated, we affirm.

Fuller contends that the circuit court erred by rendering summary judgment dismissing his claims for strict liability and negligence against Blair. Fuller argues that Blair qualifies as an “owner” of the dog under KRS 258.235(4) because Blair knowingly permitted the dog to remain on the rented premises and thus, is strictly liable for Fuller’s injuries. Fuller also argues that Blair was negligent in her role as landlord of the leased premises.

Resolution of the strict liability claim centers upon the legal interpretation of two statutes – KRS 258.235(4) and KRS 258.095(5).
KRS 258.235(4) reads:

Any owner whose dog is found to have caused damage to a person, livestock, or other property shall be responsible for that damage.

KRS 258.095(5) reads:

“Owner,” when applied to the proprietorship of a dog, includes every person having a right of property in the dog and every person who keeps or harbors the dog, or has it in his care, or permits it to remain on or about premises owned or occupied by him[.]

It is well-established that any ambiguous language in a statute must be interpreted to effectuate the underlying intent of the General Assembly. Hearn v. Com., 80 S.W.3d 432 (Ky. 2002); City of Covington v. Kenton Co., 149 S.W.3d 358 (Ky. 2004). In so doing, a statute may not be interpreted or construed to produce an unjust, unreasonable, or absurd result. Wesley v. Board of Educ. of Nicholas Co., 403 S.W.2d 28 (Ky. 1966); Ky. Indus. Utility Customers, Inc. v. Ky. Utilities Co., 983 S.W.2d 493 (Ky. 1998); Executive Branch Ethics Com’n v. Stephens, 92 S.W.3d 69 (Ky. 2002); City of Covington, 149 S.W.3d 358; Revenue Cabinet v. O’Daniel, 153 S.W.3d 815 (Ky. 2005).

Under KRS 258.235(4), an “owner” whose dog “caused damage” is strictly liable for such damage. The term “owner” is generally defined by KRS 258.095(5) and relevant herein is defined as one who “permits it [dog] to remain on . . . premises owned or occupied by him.” We cannot interpret the definition of “owner” in KRS 258.095(5) so broadly to include a landlord of leased premises under the circumstances of this case. Such an interpretation of KRS 258.235(4) and KRS 258.095(5) would result in an injudicious and unwarranted expansion of strict liability in Kentucky. Neither case law nor statutory law supports such an expansion. As previously noted by our Court, KRS 258.095(5) was:

[D]esigned to expand liability to those parties who keep dogs, such as kennel owners, veterinarians, and other persons who keep dogs owned by others in their care, as well as any person who keeps a dog owned by another on their property.

Jordan v. Lusby, 81 S.W.3d 523, 524 (Ky. App. 2002). Simply put, the General Assembly never intended to expand strict liability to a landlord who neither actually “kept” the dog nor was aware of any previous violent tendencies of the dog. See Ireland v. Raymond, 796 S.W.2d 870 (Ky. App. 1990); Jordan, 81 S.W.3d 523. Accordingly, we conclude that Blair was not an “owner” of the dog within the meaning of KRS 258.235(4) and KRS 258.095(5).2 Therefore, Blaircannot be held strictly liable for injuries sustained by Andrew under applicable Kentucky law.3

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