Sept. 21, 2012 Court of Appeals Minutes — Nos. 813-842 (30 decisions; 13 To Be Published)

The Court of Appeals issued 30 decisions on Sept. 21, 2012;   13 decisions were “Published”.

LINKS:

  • Click on this link for the full text of these minutes with link to full text of each decision.
  • Click here for AOC page with current minutes and archived minutes links

PUBLISHED DECISIONS OF COA:

815.  CRIMINAL LAW
MASSIE (CHARLES W.)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING IN PART, REVERSING IN PART AND REMANDING
THOMPSON (PRESIDING JUDGE)
LAMBERT (CONCURS) AND VANMETER (CONCURS)
2010-CA-001861-MR
TO BE PUBLISHED
CUMBERLAND

THOMPSON, JUDGE: Charles W. Massie appeals from the Cumberland Circuit Court’s judgment of conviction after a jury trial for trafficking in marijuana in an amount greater than eight ounces, possession of marijuana, and possession of drug paraphernalia. For the reasons stated, we affirm in part, reverse in part, and remand.

817.  APPEALS.  JURISDICTION of trial court not necessarily lost on appeal.
MOCTAR (SIDI)
VS.
YELLOW CAB OF LOUSIVILLE, LLC, ET AL.
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
COMBS (CONCURS) AND LAMBERT (CONCURS)
2010-CA-002155-MR
TO BE PUBLISHED
JEFFERSON

STUMBO, JUDGE: Sidi Moctar appeals from the October 29, 2010 order of the Jefferson Circuit Court. That order granted default judgment against Unknown Defendant and further ordered that a prior order of dismissal, in favor of Yellow Cab of Louisville, LLC; Louisville Transportation Company; and Pro Carent, Inc. (collectively “Appellees”), was a final and appealable order. Appellant argues that the trial court lacked jurisdiction at the time the judgment was entered and it is therefore null. We affirm.

Appellant’s only argument on appeal is that the filing of Appeal No. 2010- CA-000478-MR divested the trial court of jurisdiction, thereby making the October 29, 2010 order a nullity. We do not agree. Traditionally, a timely filed notice of appeal divests jurisdiction from the trial court and vests it in the appellate court. See, e.g., Young v. Richardson, 267 S.W.3d 690 (Ky. App. 2008). However, the question presently before us is: do all appeals, regardless if they are appropriately brought, divest the trial court of its jurisdiction? As an issue of first impression, we hold that they do not.

819. CRIMINAL LAW
CASEY (JOSEPH L.)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
MOORE (CONCURS) AND STUMBO (CONCURS)
2010-CA-002310-MR
TO BE PUBLISHED
KENTON

VANMETER, JUDGE: Joseph Casey appeals from the Kenton Circuit Court judgment convicting him of theft of motor vehicle registration plate (renewal decal), a class D felony; theft of motor vehicle registration plate, a class D felony; theft by unlawful taking under $500, a class A misdemeanor; and persistent felony offender (“PFO”) in the first degree. The court sentenced Casey to fifteen years’ imprisonment, in accordance with the jury’s recommendation. For the following reasons, we affirm.

820.  AUTHORITY TO BIND PRINCIPAL FOR ARBITRATION.
GGNSC STANFORD, LLC , ET AL.
VS.
ROWE (ROBERT), ET AL.
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
CAPERTON (CONCURS) AND VANMETER (CONCURS)
2010-CA-002330-MR
TO BE PUBLISHED
LINCOLN

The primary question on appeal is whether the purported attorney-in-fact of an incompetent adult, ostensibly appointed by the incompetent person’s parents, had actual or apparent authority to enter into an arbitration agreement on her behalf. If not, the question becomes whether the incompetent adult’s estate can be estopped from arguing the arbitration agreement was invalid. Because we conclude that no person possessed actual or apparent authority to contractually bind the incompetent adult and that her estate cannot be estopped from arguing the actions of the purported attorney-in-fact were ineffectual, we affirm the order of the circuit court denying the appellants’ motion to dismiss.1

821.  APPEALS  FAILURE TO COMPLY WITH CR 76.12(4)(C)(iii)
CRAIG (R. JULIUS)
VS.
KULKA (NENA)
OPINION AND ORDER DISMISSING
DIXON (PRESIDING JUDGE)
MOORE (CONCURS) AND THOMPSON (DISSENTS)
2011-CA-000036-MR
TO BE PUBLISHED
HARDIN

DIXON, JUDGE: R. Julius Craig appeals from a final judgment of the Hardin Circuit Court, which resolved a dispute over an attorney fee contract in favor of Nena Kulka, Craig’s former client. Because we conclude Craig failed to comply with the minimum standards of CR 76.12, we grant Kulka’s pending motion to dismiss this appeal.

In this case, we have a clearly deficient appellate brief tendered by an attorney, on behalf of an appellant who is also an attorney. Kulka moved to dismiss the appeal due to Craig’s inability to comply with the civil rules; likewise, we are mindful that a panel of this Court previously ordered Craig to file a brief that substantially complied with CR 76.12 or risk dismissal of the appeal. After careful consideration, we are satisfied that Craig’s brief cannot reasonably be viewed as substantially compliant with CR 76.12; consequently, we believe it is appropriate to grant Kulka’s motion to dismiss the appeal.

For the reasons stated herein, we hereby ORDER that Kulka’s motion to dismiss the appeal is GRANTED.

824.  CRIMINAL LAW
BUCHANAN (MARC)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
TAYLOR (CONCURS) AND VANMETER (CONCURS)
2011-CA-000639-MR
TO BE PUBLISHED
FAYETTE

KELLER, JUDGE: Marc Buchanan (Buchanan) appeals from a judgment of the Fayette Circuit Court convicting him of first-degree assault, first-degree fleeing or evading police, and tampering with physical evidence and sentencing him to a total of fifteen years’ imprisonment. For the following reasons, we affirm.

825. The opinion in 2011-CA-000684 was withdrawn by Court Order on September 21, 2012. A new opinion will be rendered in the near future.
BRIDGEFIELD CASUALTY INSURANCE COMPANY, INC.
VS.
YAMAHA MOTOR MANUFACTURING CORPORATION OF AMERICA
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
LAMBERT (CONCURS) AND THOMPSON (CONCURS)
2011-CA-000684-MR
TO BE PUBLISHED
KNOX

The opinion in 2011-CA-000684 was withdrawn by Court Order on September 21, 2012. A new opinion will be rendered in the near future.

829
HEMPEL (DANIEL S.)
VS.
HEMPEL (KAREN S.)
OPINION AFFIRMING IN PART, VACATING IN PART AND REMANDING
COMBS (PRESIDING JUDGE)
STUMBO (CONCURS) AND LAMBERT (CONCURS)
2011-CA-000763-MR
TO BE PUBLISHED
OLDHAM

831.  FAMILY LAW
LUCAS (TIMOTHY DEWAYNE)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
TAYLOR (CONCURS) AND KELLER (CONCURS)
2011-CA-001020-MR
TO BE PUBLISHED
FAYETTE

COMBS, JUDGE: Daniel Hempel appeals from the judgment of the Oldham Family Court entered in his case for dissolution of marriage. The judgment awarded Daniel and Karen joint custody of their minor children; set monthly child support; and divided the marital property and debts. After our review of the record, we affirm in part, vacate in part, and remand.

834.  DEFENSES. IMMUNITY.
COLEMAN (DEXTER), ET AL.
VS.
SMITH (WENDELL), GRANDPARENT AND GUARDIAN
OPINION REVERSING AND REMANDING
ACREE (PRESIDING JUDGE)
CLAYTON (CONCURS) AND LAMBERT (CONCURS)
2011-CA-001276-MR
TO BE PUBLISHED
PIKE

ACREE, CHIEF JUDGE: The narrow issue presented is whether either, or both, of the appellants, Dexter Coleman and Mark Cantrell, is entitled to qualified official immunity. We find Cantrell engaged in a discretionary act and, as a result, may qualify for official immunity. With respect to Coleman, we find he failed to comply with a ministerial directive but, because a genuine issue of material fact exists, summary judgment was premature. Accordingly, for the following reasons, we reverse the circuit court’s June 28, 2011 order denying appellants’ motion for summary judgment on immunity grounds and remand for additional proceedings.

835
REICHWEIN (DEENA), ET AL.
VS.
JACKSON PURCHASE ENERGY CORPORATION
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
DIXON (CONCURS) AND MOORE (CONCURS)
2011-CA-001339-MR
TO BE PUBLISHED
MCCRACKEN

THOMPSON, JUDGE: Deena Reichwein, individually, as Administratrix of the Estate of Andrew Reichwein, and next friend and guardian, of Alexis Reichwein, (collectively referred to as the Estate) filed this tort action against Jackson Purchase Energy Corporation (JPEC). The McCracken Circuit Court granted two summary judgments in JPEC’s favor and the estate appealed. The dispositive issue is whether JPEC is entitled to “up-the-ladder” immunity provided for in Kentucky Revised Statutes (KRS) 342.690(1) and KRS 342.610(2).

 

838
COMMONWEALTH OF KENTUCKY
VS.
FOWLER (HENRY LEE), JR.
OPINION REVERSING AND REMANDING
MOORE (PRESIDING JUDGE)
CAPERTON (CONCURS) AND LAMBERT (CONCURS)
2011-CA-001581-MR
TO BE PUBLISHED
JEFFERSON

 

842. FAMILY LAW
M. (J.)
VS.
D. (A.)
OPINION VACATING AND REMANDING
COMBS (PRESIDING JUDGE)
CLAYTON (CONCURS) AND THOMPSON (CONCURS)
2012-CA-000358-ME
TO BE PUBLISHED
JEFFERSON

COMBS, JUDGE: J.M. (Father) appeals from the order of the Jefferson Family Court that granted A.D.’s (Mother) petition to alter or amend a previous order. After our review, we vacate and remand.

TORT REPORT  FOR PUBLISHED/NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

IF YOU WANT

PUBLISHED:

SEE ABOVE.

NONPUBLISHED:

813.  MEDICAL NEGLIGENCE.  OSTENSIBLE AGENCY.
RAINS (LISA), ET AL.
VS.
ST. JOSEPH HEALTHCARE, INC., ET AL.
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
ACREE (CONCURS) AND CAPERTON (DISSENTS AND FILES SEPARATE OPINION)
2010-CA-001624-MR
NOT TO BE PUBLISHED
FAYETTE

Lisa filed suit against SJH, among others, asserting that SJH was vicariously liable for the aforementioned doctors’ alleged negligence under a theory of ostensible agency. SJH filed a motion for summary judgment on the basis that the “Authorizations and Consents” form signed by Bobby notified him that the doctors were not employees or agents of SJH and thus precluded its liability as a matter of law. The consent form contained the following provision:

8. I understand that physicians, surgeons, radiologists, pathologists, anesthesiologists, other doctors, and physicians assistants who may render care or services in my case are not employees or agents of Saint Joseph HealthCare, Inc. I acknowledge[,] authorize, and consent to each of the matters discussed above. I agree to abide by the rules of Saint Joseph HealthCare, Inc., cooperate with physicians and hospital personnel in my care and treatment, and observe the rights of other patients.

After reviewing the parties’ arguments and the record, the trial court granted summary judgment in favor of SJH, finding that Bobby’s signature on the consent form acknowledged that the physicians were not agents or employees of SJH so as to bar SJH’s liability as a matter of law under an ostensible agency theory.2 The court further found that the substance of Dr. Brian Heller’s3 affidavit, submitted by Lisa, concerned SJH’s standard of care involving its employees or agents, rather than the issue of its liability, and was irrelevant to Lisa’s claim

2 The court noted that the defendant physicians were employed or affiliated with Lexington Clinic, an independent group of multi-specialty providers with privileges to treat patients at SJH. The record shows that Lexington Clinic is a defendant in the underlying action.

3 The court’s order refers to an expert, but does not identify the expert by name. Our review of the record reveals Dr. Heller to be the named expert.

against SJH.4 The court granted summary judgment in favor of SJH. Lisa now appeals.

On appeal, Lisa asserts that the trial court erred by granting summary judgment in favor of SJH because a genuine issue of fact exists as to SJH’s liability under an ostensible agency theory, based upon the inadequate and improper consent form presented for Bobby’s signature. We disagree.

An apparent or ostensible agent is not an actual agent, but is “‘one whom the principal, either intentionally or by want of ordinary care, induces third persons to believe to be his agent, although he has not, either expressly or by implication, conferred authority upon him.’” Middleton v. Frances, 257 Ky. 42, 44, 77 S.W.2d 425, 426 (1934) (citation omitted). The general premise in Kentucky is that hospitals are not vicariously liable for doctors who are not its employees under an ostensible agency theory so long as the hospital makes the patient aware that the treating physician is not a hospital employee when the treatment was performed. See Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255, 256 (Ky. 1985). See also Floyd v. Humana of Virginia, Inc., 787 S.W.2d 267, 270 (Ky.App. 1989) (medical malpractice plaintiff could not hold hospital liable for alleged negligence of physician on ostensible agency theory where admission forms read and signed by plaintiff indicated her knowledge that doctors were independent contractors and not agents of hospital, and no representation or action was made so as to induce plaintiff to believe that doctors were employees or agents of hospital); Roberts v. Galen of Virginia, Inc., 111 F.3d 405, 412-13 (6th Cir. 1997) (under Kentucky law, hospital is not liable under ostensible agency doctrine for alleged negligence of independent contractor physicians where hospital’s patient registration and authorization form alerted the public that its physicians are not its employees or agents), rev’d on other grounds, 525 U.S. 249, 119 S.Ct. 685, 142 L.Ed.2d 648 (1999); Vandevelde v. Poppens, 552 F.Supp.2d 662, 667 (W.D.Ky. 2008) (hospital not vicariously liable under Kentucky law for alleged negligence of physicians based on an ostensible agency theory where hospital’s consent upon admission forms alerted the public that its physicians were not its employees or agents); Johnston v. Sisters of Charity of Nazareth Health Sys., Inc., 2003 WL 22681562 at *3 (Ky.App. Nov. 14, 2003) (hospital not liable under ostensible agency theory where patient signed admission forms on six different occasions which explicitly stated that pathologists and physicians at hospital were independent contractors and not employees or agents of hospital).

In this case, the record reflects that on seven separate occasions, beginning in March 2005 and ending with a final admission in January 2007, Bobby signed an SJH form entitled “Authorizations and Consents.” This one-page form, which was identical in all material respects at each admission, is not complex and is not drafted in legalistic language. Paragraph eight of the form, immediately preceding his signature, informed him that “physicians, surgeons, radiologists, pathologists, anesthesiologists, other doctors, and physicians assistants who may render care or services in [his] case are not employees or agents of Saint Joseph HealthCare, Inc.” No evidence was presented to show that SJH represented to the public that the doctors working within the confines of the hospital were its employees or agents. Thus, as a matter of law, SJH cannot be held vicariously liable for the alleged negligence of the doctors under an ostensible agency theory.

The order of The Fayette Circuit Court is affirmed.

833.TORTS
SELF (BRIDGETT), ET AL.
VS.
MANTOOTH (BARRY), ET AL.
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
ACREE (CONCURS) AND CLAYTON (CONCURS)
2011-CA-001161-MR
NOT TO BE PUBLISHED
JEFFERSON

The Appellants raise three issues: (1) because Mary’s injury and death were foreseeable, Barry had a duty to keep Geno’s loaded gun, to unload the gun, or to ask Geno to put the gun away; (2) the Mantooths had a special duty of care to protect Mary from Geno; and (3) the Mantooths are liable for aiding and promoting Mary’s death under KRS 411.150. Because there is some overlap in the analysis of these issues, we first generally address the law of negligence, then we separately address each specific issue.

Please note: I reserve the right to delete comments that are inappropriate, offensive or off-topic.

Leave a Reply

Your email address will not be published.

One thought on “Sept. 21, 2012 Court of Appeals Minutes — Nos. 813-842 (30 decisions; 13 To Be Published)

  1. Pingback: Isaacs and Isaacs