October 14, 2011 COA Minutes — Nos. 947-965 (19 decisions; 5 published)

October 14, 2011 COA Minutes — Nos. 947-965 (19  decisions; 5 published)

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PUBLISHED DECISIONS OF COA:

947.  KLAN CASE FROM MEADE COUNTY ARISING FROM ASSAULT.
EDWARDS (RONALD)
VS.
GRUVER (JORDAN) AND JARRED HENSLEY
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
CAPERTON (CONCURS) AND CLAYTON (CONCURS)
2008-CA-002348-MR
TO BE PUBLISHED
MEADE

ORDER GRANTING PETITION FOR REHEARING, WITHDRAWING OPINION RENDERED JANUARY 14, 2011, ISSUING NEW OPINION AND DENYING MOTION FOR ORAL ARGUMENT ON REHEARING: RONALD EDWARDS 2008-CA-002348-MR
VS. JORDAN GRUVER, ET AL ENTERED: 10/14/2011

ACREE, JUDGE: Ronald Edwards appeals a Meade Circuit Court jury verdict and judgment finding him liable for the injuries sustained by Jordan Gruver at the hands of recruiters for Edwards’ wholly owned unincorporated association, the Imperial Klans of America (IKA). Gruver’s injuries were sustained when four of Edwards’ recruiters accosted Gruver and two physically assaulted him; Gruver’s assailants were Jarred Hensley, Andrew Watkins, Joshua Cowles, and Matthew Roberts. In this same case, Hensley was found liable on the claim of assault, and Edwards was found liable on alternate claims of his negligent selection and retention of unfit individuals to serve as recruiters, and his negligent supervision of his recruiters.1    Only Edwards pursued an appeal of the judgment.2    We affirm.

955.  APPEAL DISMISSED AS FRIVILOUS.
CARDWELL (CLAIR JOE)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AND ORDER DISMISSING
NICKELL (PRESIDING JUDGE)
ACREE (CONCURS) AND MOORE (CONCURS)
2009-CA-002401-MR
TO BE PUBLISHED
JEFFERSON

NICKELL, JUDGE: Clair Joe Cardwell, pro se, appeals from the Jefferson Circuit Court’s denial of his successive motion for relief pursuant to CR1 60.02(b) and CR 61.02. Having reviewed the record, the briefs and the law, we dismiss this appeal as frivolous under CR 73.02(4) and direct the circuit court to deny all future requests for in forma pauperis status for subsequent collateral attacks on this conviction.

957.  APPEALS.  PARTIAL SUMMARY JUDGMENT (INTERLOCUTORY?), FINALITY.
MORGAN (JOHN R.)  M.D.
VS.
APPALACHIAN REGIONAL HEALTHCARE, INC.
OPINION AFFIRMING
WINE (PRESIDING JUDGE)
ACREE (CONCURS) AND LAMBERT (CONCURS)
2010-CA-000197-MR
TO BE PUBLISHED
FAYETTE

WINE, JUDGE: John R. Morgan appeals from a judgment and order of the Fayette Circuit Court finding that he had breached a contract with Appalachian Regional Healthcare, Inc. (“ARH”) and awarding ARH damages in the amount of $163,511.06 plus interest, attorneys’ fees in the amount of $24,183.50, and costs. This action originated when ARH filed a complaint for contract damages arising out of Morgan’s failure to pay ARH amounts due and owing under two separate loan agreements entered into while Morgan was in medical school. After our review, we affirm.

Morgan’s argument ultimately fails, but for reasons not addressed by the parties.
It is true that a judgment generally becomes final ten days after its entry by the trial court. See Kentucky Rules of Civil Procedure (“CR”) 52.02, 59.04, 59.05. Once a judgment is final, a trial court loses jurisdiction over the matter in question. Mullins v. Hess, 131 S.W.3d 769, 774 (Ky. App. 2004). CR 54.01 defines a final judgment as follows:

A judgment is a written order of a court adjudicating a claim or claims in an action or proceeding. A final or appealable judgment is a final order adjudicating all the rights of all the parties in an action or proceeding, or a judgment made final under Rule 54.02. Where the context requires, the term “judgment” as used in these rules shall be construed “final judgment” or “final order.”

(Emphasis added). However, “if an order entered in a cause does not put an end to the action, but leaves something further to be done before the rights of the parties are determined, it is interlocutory and not final.” Hubbard v. Hubbard, 303 Ky. 411, 412, 197 S.W.2d 923, 924 (1946); see also Hill v. Kentucky Lottery Corp., 327 S.W.3d 412, 418 (Ky. 2010); Harris v. Camp Taylor Fire Prot. Dist., 303 S.W.3d 479, 482 (Ky. App. 2009). This point is important since it is dispositive of the issue before us.

In making their arguments, neither party speaks to the fact that the summary judgment order of December 16, 2009, was never a “final” order because it failed to resolve the question of damages. In Chittum v. Abell, 485 S.W.2d 231 (Ky. 1972), the then-Court of Appeals explicitly held that when a judgment addressed liability – but not damages – it was not a “final” judgment because it did not fully adjudge the damage claim. Id. at 237; see also Tax Ease Lein Investments 1, LLC v. Brown, 340 S.W.3d 99, 102 (Ky. App. 2011). As the Court said in Chittum, “a determination that adjudicates only part of a claim cannot be made final.” Chittum, 485 S.W.2d at 237. Consequently, the order of December 16, 2009, was nonfinal and interlocutory and, therefore, subject to amendment at any time prior to “final” adjudication. See Tax Ease, 340 S.W.3d at 103; Bank of Danville v. Farmers Nat. Bank of Danville, 602 S.W.2d 160, 164 (Ky. 1980); CR 54.02(1).

Federal courts share this same view. “[P]artial summary judgment[s] limited to the issue of petitioner’s liability . . . are by their terms interlocutory, see Fed. Rule Civ. Proc. [Federal Rules of Civil Procedure] 56(c), and where assessment of damages or awarding of other relief remains to be resolved have never been considered to be ‘final[.]’ ” Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 744, 96 S. Ct. 1202, 1206, 47 L. Ed. 2d 435 (1976).
We further note that the finality language included in the order of December 16, 2009, failed to transform it into a final judgment. “[M]erely adding finality recitations from CR 54.02 will have no effect on an order that ‘did not finally fix the rights of any of the parties’ as to even one claim.” Tax Ease, 340 S.W.3d at 101, quoting Hale v. Deaton, 528 S.W.2d 719, 722 (Ky. 1975); see also Liberty Mut., 424 U.S. at 742, 96 S. Ct. at 1206 (rejecting the view that the district court’s use of the finality recital set forth in Fed. Rule Civ. Proc. 54(b) in entering judgment on the issue of liability made the judgment final and appealable); Chittum, 485 S.W.2d at 237.

960.  CRIMINAL SENTENCING.
MATTHEWS (BOYD DANIEL)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
DIXON (CONCURS) AND VANMETER (CONCURS)
2010-CA-001157-MR
TO BE PUBLISHED
MCCRACKEN

LAMBERT, JUDGE: Boyd Daniel Matthews appeals from the final judgment of the McCracken Circuit Court convicting him of first-degree trafficking in a controlled substance (cocaine) and for being a first-degree persistent felony offender. As a result of these convictions, Matthews received an enhanced sentence of seventeen years’ imprisonment. After careful review, we affirm the conviction.

961. CRIMINAL PROCEDURE.  VEHICLE SEARCH.
STEVENS (ARCHIE LEE)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
TAYLOR (CONCURS) AND DIXON (CONCURS)
2010-CA-001913-MR
TO BE PUBLISHED
MCCREARY

LAMBERT, JUDGE: Archie Stevens entered a conditional plea of guilty to two counts of receiving stolen property of a value of $300.00 or more. The McCreary Circuit Court entered judgment sentencing him to imprisonment of one year in the penitentiary on each count, to run consecutively for a total of two years, with the sentence probated for three years. Stevens appeals, contending the trial court erred in failing to sustain his supplemental motion to suppress a search of his property. After careful review, we affirm.

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953.  TORTS.  PREMISES LIABILITY.  COA AFFIRMING MSJ DISMISSAL OF PLAINTIFF'S CLAIMS.
BENTLEY (MELISSA)
VS.
HALL (DENZIL)
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
TAYLOR (CONCURS) AND KELLER (CONCURS)
2009-CA-001920-MR
NOT TO BE PUBLISHED
FLOYD

LAMBERT, SENIOR JUDGE: Melissa Bentley appeals from the Floyd Circuit Court’s entry of summary judgment as to her personal-injury negligence claim against Denzil Hall. For reasons that follow, we affirm.

Appellant was injured in a fall at the Dwale Mobile Home Park in Floyd County, Kentucky, on October 4, 2007. She fell backwards while attempting to ascend the first of three steps attached to a trailer porch after returning from a social event with her boyfriend, Steve Montgomery.2    Appellee owns the mobile home park, as well as the trailer at which the fall occurred. As a result of the fall, Appellant suffered injuries to her left elbow that have required multiple surgeries and that caused her to miss approximately four months of work.
Appellant subsequently filed a personal-injury negligence action against Appellee in which she alleged that the subject premises were “in an unreasonably defective condition” and that Appellee had failed to provide adequate warning of their state or to take sufficient precautions to address the risk that someone might fall. The parties undertook discovery, and both Appellant and Appellee were deposed.

“To recover under a claim of negligence in Kentucky, a plaintiff must establish that (1) the defendant owed a duty of care to the plaintiff, (2) the defendant breached its duty, and (3) the breach proximately caused the plaintiff’s damages.” Lee v. Farmer’s Rural Elec. Co-op. Corp., 245 S.W.3d 209, 211-12 (Ky. App. 2007). For purposes of establishing duty, visitors upon property have traditionally been placed in one of three categories: trespassers, licensees, or invitees. Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). The parties agree that Appellant was a social guest at the time of the subject incident; therefore, she is considered a licensee for purposes of determining the duty of care she was owed. See Shipp v. Johnson, 452 S.W.2d 828, 829 (Ky. 1969).

A “licensee” enters upon the premises owned by another “by express invitation or implied acquiescence of the owner or occupant solely on the licensee’s own business, pleasure or convenience.” Scuddy Coal Co. v. Couch, 274 S.W.2d 388, 390 (Ky. 1954). “A possessor of land owes a licensee the duty of reasonable care either to make the land as safe as it appears, or to disclose the fact that it is as dangerous as he knows it to be.” Scifres, 916 S.W.2d at 781. “There is no duty to warn a licensee of any danger or condition which is open and obvious or which should or could be observed by the licensee in the exercise of ordinary care.” Id. Ultimately, “the basic distinction between the duties of the possessor is that he owes an invitee the duty of discovering a dangerous condition, whereas he owes a licensee only the duty to warn him of a dangerous condition already known to the possessor.” Mackey v. Allen, 396 S.W.2d 55, 58 (Ky. 1965) (emphasis in original); see also Terry v. Timberlake, 348 S.W.2d 919, 920 (Ky. 1961) (“No duty was owed to the appellee by appellants other than that of not knowingly letting her come upon a hidden peril or willfully or wantonly causing her harm.”).

The question then becomes whether Appellant produced sufficient evidence of a breach of this duty to avoid summary judgment. We do not believe that she did. Appellant states in her brief that “[a]s the constructor of the steps in question,” Appellee “knew or should have known of their dangerous and slippery nature.” She provides little clarity on the question of how the steps were “dangerous and slippery,” but when asked in her deposition what was wrong with the steps, she replied, “It’s just slick wood.” However, Appellant acknowledged in her deposition that she had used those same steps on a number of previous occasions and that she had never had any problems with them or made any complaints about them. Therefore, Appellant had ample opportunity to observe and discover the manner in which the steps were built and the state of the wood with which they were built. Moreover, Appellant has cited to nothing in the record that would suggest that the steps were constructed in a faulty manner by Appellee, that Appellee had done anything to the steps prior to Appellant’s fall that would have made the steps unreasonably dangerous, or that he otherwise knew of any hidden defect that would have rendered them unreasonably dangerous.

Ultimately, then, the record is devoid of any evidence supporting Appellant’s claim that the steps were in a “dangerous condition” or explaining how Appellee breached a duty owed to her. Appellant essentially assumes that a “dangerous condition” existed, ipso facto, because of the fact that she fell, but she supports no evidence to support her assumption. Thus, this claim provides no basis to reverse the trial court’s entry of summary judgment. “The party opposing summary judgment cannot rely on their own claims or arguments without significant evidence in order to prevent a summary judgment.” Wymer v. JH Properties, Inc., 50 S.W.3d 195, 199 (Ky. 2001). “[S]peculation and supposition” are not enough to survive a motion for summary judgment. O’Bryan v. Cave, 202 S.W.3d 585, 588 (Ky. 2006), quoting Chesapeake & Ohio Ry. Co. v. Yates, 239 S.W.2d 953, 955 (Ky. 1951).

Summary judgment was also appropriate on the basis that Appellant failed to produce any evidence of causation. Although Appellant has made vague claims that the steps were “slippery,” when she was asked in her deposition what had caused her fall, Appellant responded, “I don’t know.”3    In a similar instance in
3 Appellant characterizes the steps as “wet” in her brief. However, when asked in her deposition if the steps were wet, Appellant indicated that she did not know. Thus, the record does not support this characterization.
-9-
which a party had fallen down steps but could not specify what had caused his fall, the former Court of Appeals held that summary judgment was appropriately entered against that party:
Appellant was the sole witness concerning the circumstances of his fall. Manifestly, all of his evidence on this phase of the case was before the court on the motion for a summary judgment, and there appeared to be no reasonable possibility of producing more or better evidence on this point…. Considering the undisputed facts and the statements of appellant that he saw nothing and did not know what caused him to fall, the motion for a summary judgment was properly sustained….
Tharp v. Tharp, 346 S.W.2d 44, 46 (Ky. 1961) (internal citations omitted). Because of a similar lack of any evidence regarding the cause of Appellant’s fall, we are compelled to reach the same conclusion here.

956. TORTS, NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS.
AKEMON (VALERIE)
VS.
C & S OIL PIPELINE CONSTRUCTION, LLC, ET AL.
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
CAPERTON (CONCURS) AND THOMPSON (CONCURS IN RESULT ONLY)
2010-CA-000104-MR
NOT TO BE PUBLISHED
LETCHER

LAMBERT, SENIOR JUDGE: Valerie Akemon seeks our review claiming that an erroneous jury instruction was prejudicial in a trial where she sought recovery for negligent infliction of emotional distress. The jury returned a verdict against Akemon and upon review, we affirm.

958.  CIVIL PROCEDURE.  NOTICE PLEADING AND ADEQUACY OF COMPLAINT AFFIRMED.  DEFAULT JUDGMENT.
BUCKMINSTER (ALISA)
VS.
BOLAND (LEIGH ANNE)
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
ACREE (CONCURS) AND STUMBO (CONCURS)
2010-CA-000689-MR
NOT TO BE PUBLISHED
JEFFERSON

LAMBERT, SENIOR JUDGE: Appellant Alisa Buckminster appeals from a judgment of the Jefferson Circuit Court entered in a tort action filed by Appellee Leigh Anne Boland against Appellant. Appellant specifically challenges the circuit court’s earlier entry of a default judgment as to liability in favor of Appellee. Appellant contends that the default judgment should have been set aside because Appellee’s complaint failed to state a claim upon which relief could be granted. After our review, we conclude that the complaint satisfied the lenient standards for notice pleading. Thus, we affirm.

She instead argues that a default judgment never should have been entered because “[a] default judgment may not be based upon a complaint which fails to state a cause of action.” Dalton v. First Nat. Bank of Grayson, 712 S.W.2d 954, 956 (Ky. App. 1986). Appellant contends that since Appellee’s complaint failed to state a cognizable claim for “abuse of process” or “malicious prosecution,” default judgment was erroneously entered.
We consider Appellant’s claim with the understanding that “the modern rule is to require only the most general and conclusory pleadings in order to sustain a cause of action[.]” Id. The Rules of Civil Procedure must be “liberally construed” with respect to whether a party has stated a cause of action and “much leniency should be shown in construing whether a complaint on which a default judgment is based states a cause of action[.]” Morgan v. O’Neil, 652 S.W.2d 83, 85 (Ky. 1983).

By its own terms, CR 8.01 requires only that a complaint provide “a short and plain statement of the claim showing that the pleader is entitled to relief[.]” CR 8.01(1). This entails simply setting out facts or conclusions sufficiently to identify the basis of the claim. Grand Aerie Fraternal Order of Eagles v. Carneyhan, 169 S.W.3d 840, 845 (Ky. 2005). Ultimately, “[t]he test is whether the pleading sets forth any set of facts which—if proven—would entitle the party to relief. If so, the pleading is sufficient to state a claim.” Mitchell v. Coldstream Laboratories, Inc., 337 S.W.3d 642, 645 (Ky. App. 2010). This determination is a question of law that we consider de novo. Id. For purposes of testing the sufficiency of the complaint, we assume that the allegations contained therein are true. First Nat. Bank of Mayfield v. Gardner, 376 S.W.2d 311, 315 (Ky. 1964).

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