Picture of second Breckinridge County Courthouse located in Hardinsburg, Ky. First courthouse was a log cabin (could not find any photo). Construction began after the Civil War (1865) and finished in four years. Interesting local construction information is that the clay for the bricks was dug from the area where the county high school is located (this may have been the high school back in 1972 as I am not familiar with the schools but thought a newer one had been built) with the stone obtained from Bennett’s Quarry near Irvington. An Italianate style building cost $37,000 was destroyed in 1958. Building contractors were E. Bennett and W.H. Dix.
Legend has it that the courthouse records from the log cabin courthouse were removed by women and children and stored in a cave under Hardinsburg until this structure was completed. The stone chiseled from the quarry cost ten cents each.
Image courtesy of Courthousehistory.com. See Elisabeth Headley Garr’s “History of Kentucky Courthouses (1972).
Click here for links to all the archived AOC Court of Appeals minutes at the web site for the Administrative Office of the Courts.
Click here for a listing of the Kentucky Court Report’s posts of the weekly COA minutes (or you can always access these within the KCR web site at the uppermost dropdown menu option for the Court of Appeals).
AOC version of this week’s decisions can be accessed by clicking here.
Published Court of Appeals Decisions
Links are to full text of PDF published cases for this week.
476. Business Law Case. Fiduciary duties. Punitive Damages. Motion to Amend. Trade secrets. Deference to trial judge not automatic. Directed verdict and JNOV.
Insight Kentucky Partners II, LP vs. Preferred Automotive Services, Inc.
Court of Appeals Published Opinion REVERSING & REMANDING Judgment following 9-day jury trial in Jefferson Cir Ct.
Insight Kentucky Partners appeals judgment following a jury trial finding it liable to Preferred Automotive Services for aiding and abetting a breach of fiduciary duty by Jerry Key, Preferred’s former General Manager. Preferred has filed a cross-appeal challenging the trial court’s reduction of the jury’s award of punitive damages, as well as the denial of Preferred’s motion to amend its complaint to add a trade secrets claim. For the reasons set forth herein, we reverse and remand the matter for a new trial.
Trial judge was criticized at onset of opinion for not providing rationales for rulings during nine-day trial which would have facilitated review greatly.
the trial court made no rulings from the bench, nor did it include any findings or rationale in its orders denying the motions for JNOV and new trial. In CertainTeed Corporation v. Dexter, 330 S.W.3d 64, 74-75 (Ky. 2010), our Supreme Court in reviewing an appeal from a trial court order granting a new trial, commented,
The reason appellate courts defer to the trial court’s decision to grant a new trial is because the decision may depend on factors that do not readily appear in the appellate record, such as witness demeanor and observations of the jury. . . . But that deference does not make such decisions beyond review. Thus, it is crucial that the factors going into the decision appear somewhere in the trial record, or else there may be no record of them at all. Even if the record is complete, the trial judge’s evaluation of this evidence, recorded as findings of fact in support of the decision, are just as important, at least from the appellate perspective. Otherwise, an appellate court has to sift through a voluminous record to see what possibly could have been the basis for the ruling, which wastes judicial resources and begs for erroneous reversals.
In this case, for example, the trial court simply found that the jury’s verdict in the first trial was “manifestly unsupported by the evidence and manifestly a product of jury passion and prejudice.” While these are findings of fact, of a sort, they lack of any discussion of the evidence supporting them, which makes their review difficult. Though CR [Kentucky Rules if Civil Procedure] 59.01 does not currently require them, the better practice is for a trial court to include in its order at least some specific findings regarding the evidence (or lack of evidence) that supports the ultimate decision to grant or deny the motion for a new trial.
Admittedly, our review of this matter has been made more difficult because of the absence of any findings or reasoning supporting the trial court’s rulings on the post-trial motions. Given the complexity of this case, the trial court’s evaluation of evidence and factors not readily apparent from the record would have greatly benefitted this Court in our review. With that, we now turn to the issues presented.
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The trial court, in ruling on Insight’s motions for a directed verdict and JNOV was required to give Preferred the advantage of every fair and reasonable inference which could be drawn from the evidence. Furthermore, it is not this Court’s function to determine the credibility or the weight afforded to the evidence. Although we do not know the basis for the trial court denying the motions, we are compelled to find that there did exist sufficient disputed issues of fact upon which a reasonable jury could have differed so as to preclude a directed verdict or JNOV. Therefore, the trial court did not err in denying Insight’s motions.
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The trial court has the authority to deny requested instructions, and if there is doubt that the evidence supports the giving of an instruction, their decision to do so will only be reversed for an abuse of discretion. See Olfice Inc., 173 S.W.3d at 229; Nazar v. Branham, 291 S.W.3d 599 (Ky. 2009). Based on the record before us, we cannot conclude that the trial court abused its discretion by excluding Southside and Johnson from the apportionment instruction.
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However, we are more troubled by the fact that Insight was prohibited from calling an L&N representative or introducing a certified business record to establish that the bank had a maximum limit on gift cards of $1,000. Hargrove’s testimony was demonstrably false and the trial court’s prohibition of any rebuttal evidence proving such was clearly erroneous.
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Preferred next argues that the trial court erred by including itself and Key in the apportionment instruction. Specifically, Preferred contends that apportionment of fault is only permitted among parties in pari delicto, and that it cannot share fault in the breach of fiduciary duty since the beneficiary of a fiduciary duty cannot be in pari delicto with the fiduciary who breaches the duty. Further, Preferred argues that apportionment to Key was improper because Insight and Key were joint and severally liable pursuant to Steelvest, Inc. v. Scansteel Service Center, 807 S.W.2d 476, 485 (Ky. 1991). We find both of Preferred’s arguments to be without merit.
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Based upon the language of KRS 411.182 and the cases interpreting comparative negligence, we conclude that the trial court did not err by instructing the jury to apportion fault to Preferred and Key.
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Because we are remanding this matter for a new trial, however, any issues regarding the punitive damages award are necessarily rendered moot. For the same reason, we decline to address Insight’s arguments pertaining to the closing arguments.
482. Termination of Parental Rights. Need for requisite findings of fact and conclusions of law.
W.(M.L.) v. Heart to Home Adoption Agency
Court of Appeals Published Opinion VACATING & REMANDING Fayette Cir Ct. Order terminating father’s rights to his three minor children.
it is imperative that the trial courts make the requisite findings of fact and conclusions of law to support their orders.” Keifer v. Keifer, 354 S.W.3d 123, 125-26 (Ky. 2011). Upon review, we are compelled to conclude that the trial court did not make adequate findings regarding the best interest of the children. The trial court’s order simply states in wholly-conclusory terms that termination of Father’s parental rights is in the children’s best interests. The trial court did not include any specific written facts to support its conclusion. Additionally, the oral findings related almost entirely to Father’s failure to support children in the past. There was no consideration of whether Father could improve if provided with some level of support or offered the opportunity to complete a parenting plan.
KRS 625.090 is clear that a trial court must make individualized findings of fact when termination is sought. Subsection (6) states: “[u]pon the conclusion of proof and argument of counsel, the Trial Court shall enter findings of fact, conclusions of law, and a decision as to each parent-respondent . . .” KRS 625.090(6). Our Supreme Court has been clear that written, particularized findings are essential in cases involving the welfare and future of children. Keifer, 354 S.W.3d at 125–26. Remand is required if the trial court fails to support its conclusions with appropriate written findings of fact. Anderson v. Johnson, 350 S.W.3d 453 (Ky. 2011). Therefore, we must vacate the termination orders and remand these actions for further action by the trial court.
485. Domestic Violence Order. Incomplete record. Appeal.
Denver Gambrel v. Crystal Gambrel
Court of Appeals Published Opinion AFFIRMING Warren Cir Ct’s entry of a domestic violence order.
The DVO prohibits Denver from coming within 300 feet of S.W., the eleven-year-old stepdaughter he struck with a belt, and B.G., his five-year-old daughter who was in the home when the incident occurred. Additionally, Denver is allowed only supervised visitation with B.G. Having reviewed the briefs, the law and the record provided to us, we affirm. A complete record was not provided to us and without the hearing culminating in entry of the DVO, we cannot review the factual findings the court made on the record but did not incorporate into the written order, nor can we determine whether there was sufficient evidence to justify entry of a DVO.
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The appellant—in this case Denver—bore responsibility for ensuring the appellate court received a complete record. Steel Techs., Inc. v. Congleton, 234 S.W.3d 920, 926 (Ky. 2007), abrogated by Osborne v. Keeney, 399 S.W.3d 1 (Ky. 2012). He failed to carry his burden by not designating the November 9 hearing to be certified as part of the appellate record.
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We are constrained to reach this harsh result because each time we do not strictly apply the rules we erode them. We certainly hope this case serves as a warning to practitioners to carefully read and follow CR 98 to avoid missteps on behalf of their clients and to ensure a complete record—containing all relevant videos, CDs and DVDs—is certified to the appellate court. Additionally, we strongly encourage the Supreme Court of Kentucky to clarify this apparently grey area which predominantly occurs in family court practice to revise CR 98 to specify hearings resulting in a final determination (DVO, Dependency, Neglect and Abuse—DNA, Termination of Parental Rights—TPR, etc.) must be designated by the appellant to be included in the record on appeal, or circuit clerks must certify such hearings as part of the record automatically.
COA then affirmed the DVO.
Selected Non-Published Decisions Dealing with tort, insurance and civil procedure:
473. Unfair Claims Settlement Practices Act
Selena Caudill vs. New Hampshire Insurance Company
COA Not to Be Published Opinion AFFIRMING Perry Cir. Ct summary judgment in favor of insurance company dismissing claims under Kentucky Unfair Claims Settlement Practices Act
No liability insurance coverage available for mine worker’s death by electrocution provided coverage for bodily injury or death only where such was covered by underlying primary insurance. Caudill conceded that the New Hampshire policy would have only provided excess coverage for her claims.
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