SC: December 2016 Monthly Summaries of Published Opinions from Supreme Court of Ky

No decisions for month of November 2016.

Here are the December 2016 summaries of published decisions and attorney disciplinary orders from the Supreme Court of Kentucky which have been prepared by the Administrative Office of the Courts.

  • Click here for the AOC Indexed Summaries by year and month.
  • Click here for the Kentucky Court Report’s index of each month’s summary by year and month.
  • Click here for the Kentucky Court Report’s index of each month’s minutes of all decisions by year and month.

Selected civil, torts, and insurance decisions that were published.

ATTORNEY FEES
Thomas K. Stone v. Pennie Dubarry (now Detorres), et al.
2015-SC-000040-DG December 15, 2016

Opinion of the Court by Justice Noble. All sitting. Minton, C.J.; Hughes and Cunningham, JJ., concur. Venters, J., concurs by separate opinion in which Wright, J., joins. Keller, J., concurs in result only by separate opinion. The Appellant, an attorney, represented the wife in a divorce dissolution proceeding. Unbeknownst to the husband, the Appellant’s employment contract with the wife granted the Appellant a lien “on all Client’s assets, now owned and hereafter acquired to secure payment” of attorney fees and costs. With the Appellant’s assistance in negotiations, the parties eventually entered into a property-settlement agreement. It provided that the husband would retain ownership of the marital residence and pay the wife $20,000 for her interest in the home. The agreement stipulated that those funds would come from refinancing the property. The Appellant never advised the husband during negotiations that he had a contractual lien against his client’s property as security for payment of his fee. The trial court entered a decree of dissolution incorporating the property-settlement agreement. Thereafter, the wife failed to pay the Appellant his fee, and he filed a notice of a lien in the amount of $7,142.82 against the marital residence. The trial court granted the husband’s motion to release the lien, and the Court of Appeals affirmed.

Having granted discretionary review, the Supreme Court affirmed. It held that the statute governing attorney-fee liens, KRS 376.460, does not apply to property assigned or divided in divorce proceedings. The Court further held that although an attorney may, in the alternative, obtain a contractual lien on marital property though a contract of employment, such liens will not be effective against property belonging to third parties unless they have timely notice of the lien. Because the Appellant gave the husband no notice of his contractual lien on the wife’s interest in the marital residence, the trial court was correct to release it once the husband became the property’s sole owner.

TRIAL  EVIDENCE.  SEPARATION OF WITNESSES RULE.

Kathy McAbee v. Darren C. Chapman, M.D.
2014-SC-000555-DG December 15, 2016

Opinion of the Court by Justice Hughes. All sitting; all concur. This medical malpractice action against a surgeon resulted in a jury verdict for the defendant. Upholding that result in an unanimous opinion, the Supreme Court agreed with the plaintiff/appellant that the trial court had misapplied the separation of witnesses rule (Kentucky Rule of Evidence 615) when it excepted from the rule two of the defendant’s expert witnesses without requiring an adequate showing of necessity for the expert witnesses’ presence in the courtroom during the testimony of other witnesses. The Supreme Court held, however, that having reviewed the trial testimony in its entirety the error was harmless.

GOVERNMENTAL IMMUNITY
Kentucky River Foothills Development Council, Inc. v. Cathy Phirman, Etc.., et al.
2015-SC-000244-DG December 15, 2016

Opinion of the Court by Justice Keller. All sitting. Minton, C.J.; Cunningham, Noble and Wright, JJ., concur. Venters, J., concurs in result only by separate opinion in which Hughes, J., joins. Kentucky River is a community action agency which receives and distributes federal block grants in order to alleviate poverty by providing employment opportunities and improving living conditions of the poor. One of the entities Kentucky River administers is Liberty Place Recovery Center for Women, an in-house peer-based substance abuse treatment facility. Melissa Steffen, who suffered from bipolar disorder, had been approved for parole but could not be released from prison until she found a suitable residence. In order to facilitate Melissa’s release from prison, her mother arranged for Melissa to be placed at Liberty Place. While Melissa was at Liberty Place, she ran out of her medication and her mental state began to deteriorate to the point that she left the facility. Following a number of alleged mis-steps by Liberty Place staff, Melissa committed suicide. Her estate filed suit against Liberty Place and Kentucky River. Kentucky River filed a motion for summary judgment arguing that it was entitled to governmental immunity. Relying on Comair, Inc. v. Lexington-Fayette County Airport Corp., 295 S.W.3d 91 (Ky. 2009), the circuit court denied Kentucky River’s motion. The Court of Appeals affirmed, finding that Kentucky River could not pass Comair’s “parent test” because it had not been created by an immune parent.

The Supreme Court affirmed. The majority noted that the Comair test contains two parts: whether the agency is the “child” of an immune “parent;” and whether the agency performs an integral state function. The majority noted that the circuit court and the Court of Appeals focused on Kentucky River’s parentage when the primary problem is Liberty Place’s function. The majority noted that Kentucky River argued it was performing a governmental function – alleviating poverty. However, the majority held that, if the alleviation of poverty is a governmental function, providing drug rehabilitation is not because providing drug rehabilitation alleviates substance abuse, not poverty. Therefore, Kentucky River did not meet the second prong of the Comair test. In his separate concurring opinion, Justice Venters stated that none of Kentucky River’s operations would be entitled to immunity because Kentucky River was performing a federal function not a state function.

December2016