November 4, 2011 COA Minutes — Nos. 1015-1043 (29 decisions; 9 published)

November 4, 2011 COA Minutes —           Nos. 1015-1043 (29  decisions; 9 published)

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PUBLISHED DECISIONS OF COA:

 

1016.  OPEN RECORDS STATUTE.
EPLION (WAYNE ALLEN)
VS.
BURCHETT (JOE)
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
ACREE (PRESIDING JUDGE)
STUMBO (CONCURS) AND LAMBERT (CONCURS)
2009-CA-001741-MR
TO BE PUBLISHED
BOYD

ACREE, JUDGE: The issues on appeal in this open records dispute are twofold. First, we must ascertain whether the circuit court properly denied Wayne Allen Eplion’s petition for a declaration that he is entitled to production of records regarding his stay in the Boyd County Detention Center. Second, we must determine whether the circuit court’s denial of Eplion’s demand for assessment of a monetary penalty against various detention center officials (hereinafter collectively referred to as “the officials”) is supported by the law. Finding merit in Eplion’s claim against the Boyd County Detention Center under Kentucky’s Open Records Act, but also finding that he waived the only ground for reversing the penalty ruling, we affirm in part, reverse in part, and remand for entry of an order consistent with this opinion.

1018.  CRIMINAL.  REQUEST FOR NEW TRIAL FOR FAILURE OF GOV'T TO PRODUCE RECORD OF TRIAL.
HARPER (GREGORY L.)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
CAPERTON (PRESIDING JUDGE)
NICKELL (CONCURS) AND WINE (CONCURS)
2009-CA-002390-MR
2010-CA-001802-MR
TO BE PUBLISHED
JEFFERSON

CAPERTON, JUDGE: Following a jury conviction for second-degree assault and first-degree unlawful imprisonment, the Appellant Gregory Harper was sentenced to eight years of imprisonment.1    He now appeals the August 10, 2010, order of the  Jefferson Circuit Court denying his motion for a new trial based upon the failure of the courtroom recording equipment to produce a record of his jury trial. Following a review of the record, the arguments of the parties, and the applicable law, we affirm.

1019.  UNEMPLOYMENT BENEFITS.
KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION
VS.
BOONE COUNTY BOARD OF EDUCATION , ET AL.
OPINION REVERSING IN PART, VACATING IN PART AND REMANDING
ACREE (PRESIDING JUDGE)
DIXON (CONCURS) AND KELLER (CONCURS)
2010-CA-000083-MR
TO BE PUBLISHED
BOONE

ACREE, JUDGE: The Kentucky Unemployment Insurance Commission (the Commission) has appealed an order of the Boone Circuit Court which held that substitute teaching does not qualify as covered employment pursuant to Kentucky Revised Statute (KRS) 341.055(4)(e) and KRS 341.050(1)(a), rendering substitute
teachers categorically ineligible for unemployment benefits. Following careful review, we reverse in part, vacate in part, and remand to the Commission for an evidentiary hearing.

1020. NEGLIGENT MISREPRESENTATION.
PCR CONTRACTORS, INC.
VS.
DANIAL (JACOB)
OPINION AFFIRMING IN PART, REVERSING IN PART AND REMANDING
MOORE (PRESIDING JUDGE)
NICKELL (CONCURS) AND COMBS (CONCURS IN RESULT ONLY)
2010-CA-000247-MR
TO BE PUBLISHED
FAYETTE

MOORE, JUDGE: PCR Contractors, Inc., appeals from summary judgment entered by the Fayette Circuit Court in favor of Appellee, Jacob Danial, on PCR’s claims against Danial for fraudulent and negligent misrepresentation. Both claims were based upon an alleged promise by Danial to personally guarantee payment to PCR relating to a contract PCR entered into with a company that Danial partly owned and comanaged, Lexington Holdings One, LLC. After careful review, we affirm the circuit court’s decision to dismiss PCR’s claim of negligent misrepresentation, but reverse that part of the circuit court’s decision dismissing PCR’s claim of fraudulent misrepresentation and remand this matter for further proceedings.

1022.  REVENUE AND TAXATION.  UNEMPLOYMENT BENEFITS ASSESSMENT BY STATE.
TRADING POST MANAGEMENT COMPANY, LLC, ET AL.
VS.
KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION, ET AL.
OPINION REVERSING IN PART, VACATING IN PART, AND REMANDING
ACREE (PRESIDING JUDGE)
TAYLOR (CONCURS) AND COMBS (CONCURS)
2010-CA-000453-MR
TO BE PUBLISHED
FRANKLIN

ACREE, JUDGE: The questions presented by the appellants include whether the Kentucky Unemployment Insurance Commission erroneously determined that eight employing bodies are successors-in-interest to the tax account and tax rate of Trading Post Mobile Homes, Inc., and whether the apportionment of liability among the eight successors was proper pursuant to Kentucky Revised Statute (KRS) 341.540(5)(a). We conclude the Commission’s findings of fact were inadequate and reverse the Franklin Circuit Court’s opinion affirming, vacate the Commission’s order, and remand the matter for entry of findings consistent with the requirements of 787 Kentucky Administrative Regulation (KAR) 1:300.

1024.  ENFORCE ARBITRATION.  JURISDICTION.
PADGETT (DAVID W.)
VS.
STEINBRECHER (DAVID), ET AL.
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
STUMBO (CONCURS) AND LAMBERT (CONCURS)
2010-CA-000647-MR
TO BE PUBLISHED
JEFFERSON

ACREE, JUDGE: The issue before us is whether the Jefferson Circuit Court properly denied Appellant David W. Padgett’s motion to dismiss in favor of arbitration on the grounds the court lacked jurisdiction under KRS 417.200 to enforce the parties’ arbitration agreement because the agreement did not explicitly require that arbitration occur in Kentucky. For the following reasons, we affirm.

1026  EASEMENTS BY NECESSITY; GROSS VS. APPURTENANT EASEMENT;
CARROLL (JAMES L.), ET AL.
VS.
CARROLL (JOHN S.), ET AL.
OPINION AFFIRMING
MOORE (PRESIDING JUDGE)
DIXON (CONCURS) AND THOMPSON (CONCURS)
2010-CA-000824-MR
TO BE PUBLISHED
WARREN

MOORE, JUDGE:    James and Deborah Carroll (James) appeal the order of the Warren Circuit Court denying their motion for summary judgment and granting John and Lois Carroll’s (John) motion for partial summary judgment. After a careful review of the record, we affirm.

1031.  PROPERTY.  OWNERSHIP OF BURIAL SITES.
POE (BETTY GATES), ET AL.
VS.
GAUNCE (BRENT E.), ET AL.
OPINION AFFIRMING
MOORE (PRESIDING JUDGE)
COMBS (CONCURS) AND NICKELL (CONCURS)
2010-CA-001774-MR
TO BE PUBLISHED
NICHOLAS

MOORE, JUDGE: The heirs of Roy Eugene Gaunce (the above-captioned appellees) and the heirs of Charles Gates (the above-captioned appellants) each sought declarations of their rights from the Nicholas Circuit Court regarding ownership of two burial sites and a monument located on a family cemetery plot in Nicholas County, Kentucky. The circuit court found in favor of the Gaunce heirs, and the Gates heirs now appeal. Finding no error, we affirm.

TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

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1015.  CIVIL PROCEDURE. DISMISSAL FOR LACK OF PROSECUTION.
HELTON (CECIL), ET AL.
VS.
TUCKER (BARBARA), ET AL.
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
ACREE (CONCURS) AND LAMBERT (CONCURS)
2008-CA-002350-MR
NOT TO BE PUBLISHED

STUMBO, JUDGE: Cecil Helton, Individually, as a Beneficiary and Heir, and as Co-Executor of the Estate of Dewey Willis Helton, Sr., Deceased, appeals from an Order dismissing and subsequent Order Amending Dismissal of the Pulaski Circuit Court in his action seeking an accounting of estate assets. The action was dismissed pursuant to CR 77.02 based on Helton’s failure to prosecute the action, and he now contends that the dismissal was in error. As Cecil Helton failed to comply with the circuit court’s repeated directives to show good cause why the action should not be dismissed for lack of prosecution, we cannot conclude that the circuit court abused its discretion in dismissing the action. Accordingly, we affirm the orders on appeal.

1017. STATUTE OF LIMITATIONS
L.C. CHARTERS, INC.
VS.
MEL'S MULTI-SERVICE
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
ACREE (CONCURS) AND LAMBERT (CONCURS)
2009-CA-002114-MR
NOT TO BE PUBLISHED
HARLAN

STUMBO, JUDGE: L.C. Charters is appealing from an order of the Harlan Circuit Court dismissing a cross-claim against Mel’s Multi-Service because it was not pled within the statute of limitations. L.C. Charters argues that the original complaint, filed by Erie Insurance Company, tolled the running of the statute of limitations. We find no error and affirm.

1032.  PERSONAL GUARANTEE.  COMPLIANCE WITH STATUTE.
BRUNSWICK BOWLING & BILLIARDS
VS.
NG-CADLAON (MARGARET L.)
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
KELLER (CONCURS) AND MOORE (CONCURS)
2010-CA-001844-MR
NOT TO BE PUBLISHED
BOYD

CLAYTON, JUDGE: Brunswick Bowling & Billiards appeals from a summary judgment granted by the Boyd Circuit Court to Margaret L. Ng-Cadlaon. At issue is whether the circuit court correctly determined as a matter of law that Ng- Cadlaon was not liable to Brunswick under a personal guaranty because it did not conform to the requirements of Kentucky Revised Statutes (KRS) 371.065. We affirm.

371.065 Requirements for valid, enforceable guaranty.
(1) No guaranty of an indebtedness which either is not written on, or does not expressly refer to, the instrument or instruments being guaranteed shall be valid or enforceable unless it is in writing signed by the guarantor and contains provisions specifying the amount of the maximum aggregate liability of the guarantor thereunder, and the date on which the guaranty terminates. Termination of the guaranty on that date shall not affect the liability of the guarantor with respect to:
(a) Obligations created or incurred prior to the date; or
(b) Extensions or renewals of, interest accruing on, or fees, costs or expenses incurred with respect to, the obligations on or after the date.
(2) Notwithstanding any other provision of this section, a guaranty may, in addition to the maximum aggregate liability of the guarantor specified therein, guarantee payment of interest accruing on the guaranteed indebtedness, and fees, charges and costs of collecting the guaranteed indebtedness, including reasonable attorneys' fees, without specifying the amount of the interest, fees, charges and costs.
Effective: July 13, 1990
History: Amended 1990 Ky. Acts ch. 38, sec. 1, effective July 13, 1990. — Created 1986 Ky. Acts ch. 485, sec. 1, effective July 15, 1986.

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