Tort Report for COA Decisions of May 10, 2013

The Tort Report from May 10, 2013 addressing decisions from the Court of Appeals:


A family law decision addressed a civil procedure matter under CR 59.05 and motion to set aside, alter, or vacate.

Bailey vs. Bailey
COA, 5/10/2013

LAMBERT, JUDGE: Buddy Lee Bailey appeals from the Spencer Family Court’s January 5, 2012, order setting aside its previous order denying Linda Beth Bailey’s motion to alter, amend, or vacate. Buddy also appeals the trial court’s February 20, 2012, order denying his motion to alter, amend, or vacate the January 5, 2012, order. After careful review, we affirm the orders of the trial court.

On appeal, Buddy argues that the trial court’s June 13, 2011, order should not have been set aside and that the trial court failed to rule on his motion for attorney’s fees.

In his brief to this Court, Buddy fails to cite to any legal authority in support of his argument that the trial court should not have set aside its June 13, 2011, order. Kentucky law has long held that an alleged error may be waived when an appellant fails to present any authority in support of his argument advanced on appeal. Hadley v. Citizen Deposit Bank, 186 S.W.3d 754, 759 (Ky. App. 2005). Specifically, the court in Hadley opined:

Our courts have established that an alleged error may be deemed waived where an appellant fails to cite any authority in support of the issues and arguments advanced on appeal. See Pierson v. Coffey, 706 S.W.2d 409, 413 (Ky. App. 1986). “[W]ithout any argument or citation of authorities, [an appellate] [c]ourt has little or no indication of why the assignment represents an error.” State v. Bay, 529 So.2d 845, 851 (La. 1988). It is not our function as an appellate court to research and construct a party’s legal arguments, and we decline to do so here.

Thus, arguably under Hadley, Buddy’s failure to cite any legal authority in support of his argument that the trial court erred in setting aside the June 2011 order waives his arguments on appeal. However, we will nonetheless briefly address the merits of Buddy’s argument.

A trial court’s ruling on a motion made pursuant to CR 59.05 is reviewed under an abuse of discretion standard. Bowling v. Kentucky Dept. of Corrections, 301 S.W.3d 478, 483 (Ky. 2009). CR 59.05 provides that “[a] motion to alter or amend a judgment, or to vacate a judgment and enter a new one, shall be served not later than 10 days after entry of the final judgment.” Generally, a trial court has unlimited power to amend and alter its own judgments. Gullion v. Gullion, 163 S.W.3d 888, 891-892 (Ky. 2005).

Although CR 59.05 does not specifically set forth the grounds for relief under the rule, the Supreme Court of Kentucky has cited to its federal counterpart, Federal Rules of Civil Procedure 59(e), in limiting the grounds to the following:

There are four basic grounds upon which a Rule 59(e) motion may be granted. First, the movant may demonstrate that the motion is necessary to correct manifest errors of law or fact upon which the judgment is based. Second, the motion may be granted so that the moving party may present newly discovered or previously unavailable evidence. Third, the motion will be granted if necessary to prevent manifest injustice. Serious misconduct of counsel may justify relief under this theory. Fourth, a Rule 59(e) motion may be justified by an intervening change in controlling law.

Gullion, 163 S.W.3d at 893, quoting 11 Wright & Miller, Federal Practice and Procedure: Civil (2d Ed.) § 2810.1. A CR 59.05 motion may be granted on the basis of newly discovered evidence or evidence that was not available at the time of trial. Id. at 894. Unavailable evidence must be evidence that existed at the time of the trial. Id.

Not Published:

461. Employment Law Decision.  Motion for summary judgement and judgement on pleadings standard of review.
Dietz v. Bolton
COA, 5/10/2013, Not Published
Jefferson County, Affirming

LAMBERT, JUDGE: Robert Dietz and Laura McKune have appealed from several orders of the Jefferson Circuit Court granting summary judgment in favor of and dismissing their claims for wrongful discharge, retaliation, defamation, and false light, among others, against the defendants, Mark Bolton and Chad Carlton,

in both their individual and official capacities, and the Louisville/Jefferson County Metro Government (“Louisville Metro Government”). Having carefully considered the record and the parties’ respective arguments, we affirm the circuit court’s rulings.

467. Sovereign Immunity.
Metcalfe County Nursing Home Corp. vs. Estate of Mary Stone
COA, 5/10/2013 Not Published

MAZE, JUDGE: Appellants, Metcalfe County Nursing Home Corporation and Metcalfe Health Services Inc., appeal the order of the Metcalfe Circuit Court denying its motion for summary judgment which asserted the affirmative defense of sovereign immunity in response to Appellee’s, the Estate of Mary Stone(“Estate”), tort action. Upon reviewing the record, we affirm in part and reverse in part the trial court’s order denying summary judgment.

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