Highlights from this week’s decisions include authority of court-appointed guardian to enter into arbitration agreement on behalf of its ward; foreclosing on property subject to current lease; conditional discharge following criminal incarceration; and moving to disqualify counsel in divorce proceeding.
Tort and insurance cases include Reynolds v. Childers Oil Company, Letcher Cir. Ct. NonPub 4/4/2014 (arising from the sludge dumped into the Kentucky River near Whitesburg, Ky in 2008).
Apr 4, 2014 Minutes (311-320) with for published decisions.
Click here for links to all the archived Court of Appeals minutes.
PUBLISHED DECISIONS:
312. Criminal Law, Restitution
Winkle v. Commonwealth of Kentucky
Hardin County, Affirming, Published 4/4/2014
The Commonwealth maintains that by accepting its offer on a guilty plea, Winkle agreed her probation would be governed by KRS 533.030(3)—with which the trial court’s restitution order fully complied. Having fully reviewed the briefs, the record and the law, we affirm.
313. Mortgage Foreclosure. Property subject to lease.
McEwan vs. EIA Properties
Fayette County, Affirming, Published 4/4/2014
Additionally, we note that the assignment of a mortgage generally does not affect its priority or inferiority as the mortgage’s status is determined or fixed upon its initial recording. Upon this issue, we view the Supreme Court of Kansas’ opinion in Bank Western v. Henderson, 255 Kan. 343, 874 P.2d 632 (1994), as accurately setting forth the law and believe its legal reasoning to be equally applicable in this Commonwealth:
The general rule is that the first to record a mortgage has priority. The priority continues as long as the mortgage is not released. There is nothing in the statutes or case law which indicates that an assignment of a mortgage or the failure to record that assignment somehow affects the priority of the mortgage. An assignment of a mortgage is merely a formal transfer of title to the instrument.
Bank Western, 255 Kan. at 348, 874 P.2d at 636 (citation omitted). Therefore, absent contractual language to the contrary, an assignee of a mortgage merely steps into the shoes of the assignor and succeeds to the assignor’s rights. It is axiomatic that an assignee of a mortgage generally succeeds to the priority or inferiority of the originally filed mortgage. Any contention by appellants to the contrary is flawed and without merit.
314. Criminal Law. Guilty plea and conditional discharge in sentence.
Martin v. Commonwealth of Kentucky
Anderson County, Affirming, Published 4/4/2014
Three appeals were consolidated for judicial economy. Each defendant entered guilty pleas with sentence of incarceration followed by a term of conditional discharge. All three filed motions to remove the conditional discharge. Trial court affirmed.
315. Divorce. Property distribution, maintenance, attorneys fees, and motion to disqualify opposing counsel for conflict of interest.
Hammond v. Hammond
Pike County, Affirming in Part, Reversing in Part and Remanding
Published 4/4/2014
After a thorough review of the record, the parties’ arguments, and the applicable law, we must conclude that the court erred in its mathematical valuation of the parties’ marital estate; we reverse and remand this matter for the court to reassess the calculation thereof. However, we affirm the trial court’s findings related to marital property, its award of attorney’s fees, and its determination as to temporary maintenance. Accordingly, we affirm in part, reverse in part, and remand this matter for further proceedings. The trial court also did not err in disqualifying husband’s counsel.
320. Arbitration Agreement. Authority of Court Appointed Guardian to Enter into Arbitration Agreement on behalf of ward going into nursing home
LP Pikeville LLC d/b/a Signature Healthcare of Pikeville vs. Wright, Guardian for Mable Damron
Pike County, Reversing and Remanding, Published 4/4/2014
MAZE, JUDGE: LP Pikeville, LLC d/b/a Signature HealthCare of Pikeville, and associated entities and persons (collectively “Signature”) appeal from an order of the Pike Circuit Court which denied its motion to compel arbitration of negligence and personal injury claims brought by Ginger Wright, as Guardian for Mable Damron. Signature argues that Wright, as court-appointed guardian for Damron, had the authority to enter into an arbitration agreement on Damron’s behalf, and that the court erred in finding otherwise. We agree, concluding that a guardian has the authority to execute an arbitration agreement on behalf of her ward. Hence, we reverse and remand for additional proceedings.
Continue below for copy of minutes with links!
[gview file=”http://apps.courts.ky.gov/Appeals/Minutes/MNT04042014.pdf”]
