Oct. 2013 Summary of Published Decisions from Court of Appeals

Oct. 2013 Summary of Published Decisions

Since it appears the “monthly” summaries from the Court of Appeals are a victim of budgetary constraints with the last summary from COAKY in September 2013, I decided to give a shot at a rudimentary posting of the published decisions based upon my short notes for each set of minutes. This will not be as good as what the staff attorneys did at the AOC, but it’s better than “nuttin”.


975. Power of attorney included authority to sign nursing home agreement to arbitrate disputes.
Kindred Healthcare, Inc. vs. Cherolis
COA, PUB 10/11/2013
Daviess County

MAZE, JUDGE: Kindred Healthcare, Inc. and associated entities (collectively “Kindred”) appeal from an order of the Daviess Circuit Court denying its motion to compel arbitration of claims brought by Artie Cherolis, as Executrix of the Estate of Thelma Fuqua, Deceased. Kindred argues that the trial court erred in finding that Cherolis lacked authority under a power of attorney to execute an arbitration agreement on her mother’s behalf. Kindred also contends that the restrictive interpretation of an agent’s authority to enter into arbitration contracts violates the Kentucky Uniform Arbitration Act, the Federal Arbitration Act, and Section 250 of the Kentucky Constitution. We conclude that the facts of this case are distinguishable from those of the recent decision by the Kentucky Supreme Court in Ping v. Beverly Enterprises, 376 S.W.3d 581 (Ky. 2012), because the power of attorney in this case permitted Cherolis to execute the arbitration agreement. Consequently, the trial court erred by denying Kindred’s motion to compel arbitration. Hence, we reverse and remand for additional proceedings.


970. Commercial Law. Perfecting Security Interest & Collateral applying “inquiry test”.
Bishop vs. Alliance Banking Co.
COA, Pub. 10/11/2013
Estil County

TAYLOR, JUDGE: Richard Bishop brings this appeal from a September 7, 2012, summary judgment of the Estill Circuit Court in favor of Alliance Banking Company (Alliance Bank). We affirm.

Bishop contends that the circuit court erred by determining that the financing statement sufficiently described the Case backhoe and that Alliance Bank held a perfected security interest in the Case backhoe. For the following reasons, we disagree.

Under the Kentucky Uniform Commercial Code (U.C.C.), a description of collateral is sufficient “if it reasonably identifies what is described” in the financing statement or security agreement filed with the Secretary of State. KRS 355.9-108(1); KRS 355.9-504. To determine whether collateral is so reasonably identified, the Court utilizes an “inquiry test:”

[A] description of collateral is sufficient for either a security agreement or a financing statement if it puts subsequent creditors on notice so that, aided by inquiry, they may reasonably identify the collateral involved.

Nolin Prod. Credit Ass’n v. Canmer Deposit Bank, 726 S.W.2d 693, 697 (Ky. App. 1986).

In utilizing the inquiry test herein, the record reveals that Alliance Bank filed a financing statement with the Secretary of State on February 5, 2010.

994.  Burial contract, breach of contract claim.
Keaton v. G.C. Williams Funeral Home, Inc.
COA PUB 10/25/2013

NICKELL, JUDGE: Eula Keaton, Eric Hines, Thaddeus Hines, Rodney Hines, and Martin Hines (collectively “Family”) have appealed from the Jefferson Circuit Court’s grant of partial summary judgment in favor of G.C. Williams Funeral Home, Inc., and Green Meadows Cemetery, LLC, on the Family’s claims related to the burial of their mother, Gwendolyn Gamble. G.C. Williams has cross-appealedfrom the trial court’s denial of their motion for summary judgment on the Family’s breach of contract claim.

The Family filed suit against G.C. Williams and Green Meadows on December 10, 2010, setting forth claims for negligence, intentional infliction of emotional distress (IIED), fraud, negligent misrepresentation, breach of contract, and Kentucky Consumer Protection Act (KCPA)2 violations.3 Following a period of discovery, G.C. Williams and Green Meadows moved for summary judgment. The Family also moved for partial summary judgment. On January 24, 2012, the trial court granted summary judgment in favor of G.C. Williams and Green Meadows on all counts except the breach of contract claim against G.C. Williams. This appeal and cross-appeal followed.

On appeal, the Family contends the trial court erred in granting summary judgment on their negligence, IIED, and KCPA claims.4 The Family argues sufficient proof was presented to withstand summary judgment on each of these claims and the trial court improvidently granted judgment to G.C.  Williams and Green Meadows. On cross-appeal, G.C. Williams contends the trial courterred in failing to grant summary judgment on the Family’s breach of contract claim. Following a careful review, we affirm.



979.  Criminal Law.
Boone vs. Commonwealth of Kentucky
COA PUB 10/18/2013

ACREE, CHIEF JUDGE: Appellant Phillip Boone appeals the Mason Circuit Court’s July 11, 2011 Judgment and Sentence by which he was convicted of first- degree sexual abuse and sentenced to two years’ imprisonment. On appeal, Boone raises numerous trial issues which he claims resulted in error and mandate a new trial. Following a careful review, we affirm in part, reverse in part, and remand for additional proceedings consistent with this opinion.

Before this Court, Boone raises these four claims of error: (1) the circuit court erred in denying his motion for a directed verdict because there was insufficient evidence that Boone was a person in a position of authority or position of special trust over the victim; (2) his right to an unanimous verdict was violated when the circuit court issued jury instructions on theories unsupported by the evidence; (3) the circuit court failed to instruct the jury on two lesser-included   offenses; and (4) the circuit court erroneously ordered Boone, an indigent person, to pay court costs.



938. Family Law.  Judges award of attorney fees was abuse of discretion and did not have jurisdiction.
Kevin Nesselhauf vs. Christopher Haden
Jefferson Circuit Court
COA Published 10/4/2013

MAZE, JUDGE: Appellants, Kevin and Kelli Nesselhauf (hereinafter “the Nesselhaufs”), appeal from the order of the Fayette Circuit Court awarding attorney’s fees to Appellees, Gregory Baltimore and Ryan Haden, stemming from a custody matter to which they were parties. The Nesselhaufs contend that the trialcourt erred in awarding said fees. We find that the trial court’s order constituted an abuse of discretion, as the court did not have jurisdiction over the issue of attorney’s fees. Therefore, we reverse.



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