Decisions for the Week of May 9, 2014
This week’s Court of Appeals decisions numbered 390-414 with 25 decisions; 5 published.
The published decisions can be directly accessed as follows: Acuff vs. Wells Fargo Bank (foreclosure, standing, real party in interest); American Founders Bank vs. Modern Investments (conversion loss); Epperson v. Commonwealth of Kentucky (denial of continuance, suppression of toxicology report, and DUI statute and equal protection); L.(B.) vs. S.(J.) ( termination of parental rights and adoption following dependency proceedings); Diversicare Healthcare Services vs. Estate of Anna Marie Hopkins (denial of motion to compel, appeal dismissed as untimely filed).
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PUBLISHED DECISIONS FROM THE COURT OF APPEALS FOR 5/9/2014
390. Mortgage foreclosure, standing, real party in interests, and premature summary judgment Acuff vs. Wells Fargo Bank , NA
COA Published 5/9/2014 Reversing and Remanding – Kenton County
DIXON, JUDGE: Appellants, Tracy and Tammy Acuff, appeal
pro se from an order of the Kenton Circuit Court granting summary judgment in favor of Appellee, Wells Fargo Bank, N.A., in this mortgage foreclosure action. For the reasons set forth herein, we conclude that summary judgment was premature and thus remand the matter to the trial court for further proceedings.
As the party moving for summary judgment, it was incumbent upon Wells Fargo to demonstrate that there existed no genuine issues of material fact. Steelevest, 807 S.W.2d at 480. We must conclude that the evidence in the record, as it currently stands and viewed in the light most favorable to the Acuffs, is insufficient to establish whether Wells Fargo was the holder of the Acuffs’ original note and thus, the real party in interest at the time the foreclosure action was filed. Because genuine issues of material fact existed, the trial court erred in granting summary judgment.
396. Who bore loss for conversion?
American Founders Bank vs. Modern Investments
COA Published 5/9/2014
Affirming – Franklin County
ACREE, CHIEF JUDGE: American Founders Bank (AFB) appeals from a judgment of the Franklin Circuit Court, entered after a bench trial, in favor of Moden Investments, LLC. The judgment holds AFB liable for conversion losses under Kentucky Revised Statutes (KRS) 355.3-420 for having deposited into a third-party’s account a cashier’s check made payable to Moden bearing a forged endorsement. AFB seeks reversal of the judgment and, contending that Moden’s own negligence substantially contributed to the forgery, also demands that we remand the case with instructions to dismiss Moden’s complaint in accordance with KRS 355.3-406(1). Having carefully examined the record and considered the arguments and cited authority, we affirm.
406. Denial of continuance, suppression of toxicology report, and DUI statute and equal protection
COA Published 5/9/2014
Powell County
MAZE, JUDGE: Appellant, Brian Epperson, appeals from his conviction and sentence following his trial in Powell Circuit Court. Specifically, he alleges that the trial court abused its discretion by denying his motion for a continuance following the Commonwealth’s amendment of the indictment against him on the first day of trial. Epperson also argues that the trial court abused its discretion in failing to suppress toxicology test results, that a portion of Kentucky’s DUI statute violates equal protection, and, in the alternative, that the cumulative effect of these defects in his trial resulted in prejudice against him. As we conclude that justice required the trial court to grant Epperson’s Motion to Continue, we reverse and remand this case for a new trial. Additionally, we affirm the trial court’s determinations concerning the admissibility of expert testimony and Epperson’s equal protection concerns surrounding KRS 189A.010.
412. Denial of motion to compel, appeal dismissed as untimely filed
COA Published 5/9/2014 – Dismissing Appeal – Boyd County
CAPERTON, JUDGE: The Appellants appeal the Boyd Circuit Court’s order denying their motion to compel arbitration between the parties. The Appellee argues that this appeal should be dismissed as having been untimely filed, with which Appellants disagree. Having now considered the parties’ arguments, and being otherwise sufficiently advised, the Court agrees that this appeal was untimely filed and, accordingly, this appeal is hereby dismissed. On appeal, Appellants argue: (1) there is a strong presumption in favor of arbitration under both Kentucky’s Uniform Arbitration Act and the Federal Arbitration Act; and (2) unlike the limited power of attorney in Ping, the express provisions of the Prince power of attorney authorized Prince to bind Hopkins to arbitration.1
Tort Report from this Weeks Decisions – Civil, Torts, Appeals
391. Post judgment attorney fees
Hunt vs. North American Stainless
COA, Not published 5/9/2014Carroll County Reversing and remanding
