November 18, 2011 COA Minutes — Nos. 1061-1084 (24 decisions; 5 published)

November 18  , 2011 COA Minutes —  Nos. 1061-1084 (24 decisions; 5 published)

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PUBLISHED DECISIONS OF COA:

1061. CRIMINAL LAW.
ROWE (KEVIN)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
KELLER (CONCURS) AND MOORE (CONCURS)
2008-CA-000916-MR
2008-CA-001824-MR
TO BE PUBLISHED
PIKE

CLAYTON, JUDGE: These consolidated appeals stem from the Pike Circuit Court’s denial of Kevin Rowe’s two separate Kentucky Rules of Criminal Procedure (RCr) 10.02 motions for a new trial following a judgment convicting him of murder and attempted murder. For the following reasons, we affirm.

1064.  EMPLOYMENT LAW
PEARCE (JEFFERY TODD)
VS.
UNIVERSITY OF LOUISVILLE, ET AL.
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
WINE (CONCURS) AND CAPERTON (DISSENTS AND FILES SEPARATE OPINION)
2009-CA-001813-MR
TO BE PUBLISHED
JEFFERSON

LAMBERT, SENIOR JUDGE: Jeffery Todd Pierce (Appellant) appeals from an Opinion and Order of the Jefferson Circuit Court affirming an administrative decision allowing the University of Louisville (the University) to terminate his employment as a university police officer. Appellant raises various issues, including a primary contention that KRS 15.520 is applicable to his case, and an assertion that the administrative decision upholding his termination was arbitrary. After extensive review of the record on appeal and consideration of the parties’ arguments, both written and oral, we affirm.

1079. JUVENILES
G. (D.)
VS.
COMMONWEALTH OF KENTUCKY
OPINION VACATING AND REMANDING
COMBS (PRESIDING JUDGE)
MOORE (CONCURS) AND NICKELL (CONCURS)
2011-CA-000298-ME
TO BE PUBLISHED
FAYETTE

D.G., a juvenile, appeals the dispositional order of the Fayette Family Court that found him in contempt as well as adjudicating the underlying juvenile status offender order. After our review, we vacate both orders.

1082.  REAL PROPERTY.  Lien priorities.
U.S. BANK NATIONAL ASSOCIATION, AS SUCCESSOR IN INTEREST TO WACHOVIA CUSTODIAN FOR SASS MUNI V DTR
VS.
TAX EASE LIEN INVESTMENTS 1, LLC, ET AL.
OPINION REVERSING AND REMANDING
STUMBO (PRESIDING JUDGE)
MOORE (CONCURS) AND WINE (CONCURS)
2011-CA-000472-MR
TO BE PUBLISHED
CALDWELL

STUMBO, JUDGE: U.S. Bank National Association appeals from an Order of the Caldwell Circuit Court approving a Master Commissioner’s recommended dispersal of funds from the sale of a parcel of real property. U.S. Bank argues that the trial court improperly gave priority to the City of Princeton and Caldwell County rather than ordering a pro rata dispersal to all lien holders. Having concluded that Kentucky Revised Statutes (KRS) Chapter 134 gives equal priority to liens held by municipalities and third-party purchasers of those liens, we must reverse and remand the Order on appeal.

1084. WORKERS COMPENSATION
HAMPTON (GEOFFREY)
VS.
INTECH CONTRACTING, LLC, ET AL.
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
TAYLOR (CONCURS) AND LAMBERT (CONCURS)
2011-CA-001195-WC
TO BE PUBLISHED
WORKERS' COMP

THOMPSON, JUDGE: Geoffrey Hampton filed a workers’ compensation claim against his employer, Intech Contracting, LLC, alleging that on September 9, 2009, he fell from a bridge and was severely and permanently injured within the scope and course of his employment. The ALJ dismissed the claim finding that although the injury occurred in the course of his employment, the injury did not arise from his employment. After his petition for reconsideration was denied, Hampton appealed to the Workers’ Compensation Board, which affirmed. Hampton appealed to this Court. Because the issue presented is limited to whether Hampton’s injuries arose from his employment, we recite only the testimony helpful to its resolution.

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TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

IF YOU WANT

  • WORKERS COMPENSATION LAW UPDATES, I RECOMMEND YOU GO TO THE COMP ED WEB SITE AT http://www.comped.net/.
  • FAMILY LAW UPDATES, I RECOMMEND YOU GO TO Diana Skaggs' Divorce Law Journal at http://www.divorcelawjournal.com

 

None published.

Nonpublished:

1062. STATUTE OF LIMITATIONS.
WOMBLES (BRENTON)
VS.
JACKSON (T.J.), ET AL.
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
DIXON (CONCURS) AND VANMETER (CONCURS)
2009-CA-000972-MR
NOT TO BE PUBLISHED
CLAY

STUMBO, JUDGE: Brenton Wombles appeals, pro se, from a Clay Circuit Court order dismissing his complaint against his grandfather, T.J. Jackson, his grand- mother, Ruth Jackson, and his mother, Norma Jean Wombles, based upon Brenton’s failure to file his complaint within the statutorily prescribed time. Following a careful review of Brenton’s brief and the record, we affirm.

1066. APPEALS
LANE (JOYCE)
VS.
GRADY (THOMAS J.), ET AL.
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
ACREE (CONCURS) AND LAMBERT (CONCURS)
2010-CA-000648-MR
NOT TO BE PUBLISHED
JEFFERSON

STUMBO, JUDGE: Joyce Lane, pro se, is appealing numerous orders of the circuit court regarding a legal malpractice case. Lane states in her notice of appeal that she is appealing an order entered March 3, 2010, and “any and all prior decisions made by the court during the pendency of the litigation. . . .” However, only the March 3, 2010 order is properly before us. Any other orders or rulings made by the trial court are time barred. We find there are no appealable issues in the March 3, 2010 order and affirm.

1069.  INSURANCE.  UIM.  MUTUAL MISTAKE.
CIVIL PROCEDURE.  AMENDING COMPLAINT. TIMELY.
NICHOLS (JAMES D.)
VS.
ZURICH AMERICAN INSURANCE COMPANY
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
CAPERTON (CONCURS) AND COMBS (CONCURS)
2010-CA-001393-MR
NOT TO BE PUBLISHED
JEFFERSON

THOMPSON, JUDGE: James D. Nichols appeals from the June 28, 2010, order of the Jefferson Circuit Court denying his motion to alter, amend, or vacate the trial court’s March 11, 2010, order granting summary judgment in favor of Zurich American Insurance Company (“Zurich”). We find no error with the trial court’s orders and thereby affirm.

Nichols was involved in an automobile accident on June 4, 2002. At the time of the accident, Nichols was employed by Miller Pipeline (“Miller”) and was operating a truck owned by Miller. The company truck was covered by a commercial fleet auto policy (“policy”) provided by Zurich, effective April 1, 2002, through April 1, 2003. There is no dispute that Nichols was operating the vehicle while in the course and scope of his employment with Miller.
As a result of the accident, Nichols suffered severe physical injuries. The other driver involved, who was determined to be at fault, carried $25,000 in liability coverage. On September 17, 2003, Nichols settled with the at-fault driver for the $25,000 limit offered by his insurance company. Shortly thereafter, Nichols sought to collect benefits through the underinsured motorist (“UIM”) provision of Miller’s Zurich policy. Zurich initially requested documentation of Nichols’s injuries and damages. However, Nichols’s claim was eventually rejected by Zurich with an explanation that UIM coverage had been rejected by Miller and, therefore, never provided.

In its order granting summary judgment to Zurich, the trial court concluded that Zurich had shown, by uncontroverted clear and convincing evidence, that a mutual mistake existed between the parties and therefore UIM coverage was never included in Miller’s 2002 – 2003 policy. The evidence relied upon by the trial court included the deposition testimony of Miller’s Director of Risk Management from 1999 until 2004, Jeanne Fuqua, and Kathy Kebo, an employee of M.J. Insurance (“M.J.”) and the broker that assisted Miller with obtaining the 2002 – 2003 policy from Zurich.

In order to show the existence of mutual mistake, the party arguing the defense must prove by clear and convincing evidence that the parties mutually erred and “had actually agreed upon terms different from those expressed in the written instrument.” Campbellsville Lumber Co. v. Winfrey, 303 S.W.2d 284, 286 (Ky. 1957). The written instrument to which Nichols cites as indicating that UIM coverage existed is actually the proposed policy that was presented to Miller by M.J. in March of 2002.

The trial court found that the testimony offered by Ms. Kebo and Ms. Fuqua was uncontroverted and sufficiently clear and convincing to prove the existence of a mutual mistake between the contracting parties. We conclude there was no error. Nichols offered no written documentation or testimony regarding the negotiations leading to the formation of the 2002 – 2003 policy. He also failed to provide any documentation or testimony regarding the business practices of Miller prior to the 2002 – 2003 policy. In fact, after ample time to conduct discovery, Nichols failed to offer any evidence that would dispute the defense of mutual mistake. We therefore find no error with the trial court’s grant of summary judgment to Miller.

The trial court found that the testimony offered by Ms. Kebo and Ms. Fuqua was uncontroverted and sufficiently clear and convincing to prove the existence of a mutual mistake between the contracting parties. We conclude there was no error. Nichols offered no written documentation or testimony regarding the negotiations leading to the formation of the 2002 – 2003 policy. He also failed to provide any documentation or testimony regarding the business practices of Miller prior to the 2002 – 2003 policy. In fact, after ample time to conduct discovery, Nichols failed to offer any evidence that would dispute the defense of mutual mistake. We therefore find no error with the trial court’s grant of summary judgment to Miller.

Nichols’s final argument on appeal is that the trial court erred by denying his motion to amend his complaint. The Kentucky Rules of Civil Procedure provide that leave to amend a complaint “shall be freely given when justice so requires.” CR 15.01. Kentucky case law further holds that the option of granting a motion to amend lies solely within the discretion of the trial court, “whose ruling will not be disturbed unless it is clearly an abuse.” Laneve v. Standard Oil Co., 479 S.W.2d 6, 8 (Ky. 1972) (quoting Graves v. Winer, 351 S.W.2d 193 (Ky. 1961)).

It has previously been held that a trial court’s denial of leave to amend a complaint is not an abuse of discretion when the action had been pending for several years and a motion for summary judgment has been made. See Laneve v. Standard Oil Co., 479 S.W.2d 6 (Ky. 1972). In this case, Nichols’s motion came after both parties moved for summary judgment; after discovery, based upon the initial claim of liability, had been performed and submitted to the trial court; and after summary judgment had been granted. Almost five years had lapsed between the filing of the initial complaint and Nichols’s motion to amend. Given the length of time Nichols waited to amend his complaint and the circumstances of the case, we hold that the trial court did not abuse its discretion in denying Nichols leave to amend his complaint.

 

 

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