COA 2010 Minutes for December 3 , 2010 (Nos. 1126-1249)

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  • Total number of decisions:  24
  • Published Decisions:  4 (1126; 1132,1134; 1140)

PUBLISHED DECISIONS (with link to full text at AOC):

1126. CIVIL PROCEDURE; JNOV
CARTER (KATHY), ET AL.
VS.
COALFIELD LUMBER COMPANY, INC.
OPINION AFFIRMING IN PART, REVERSING IN PART AND REMANDING
CAPERTON (PRESIDING JUDGE)
THOMPSON (CONCURS) AND VANMETER (CONCURS)
2009-CA-000519-MR
TO BE PUBLISHED
MARTIN

BEFORE: CAPERTON, THOMPSON, AND VANMETER, JUDGES.
CAPERTON, JUDGE: Kathy and Ray Carter and Randal and Carolyn Sweeney appeal from the Martin Circuit Court’s grant of Coalfield Lumber Company, Inc.’s motion for judgment notwithstanding the verdict (“JNOV”) for failure to properly prove damages to their real estate. In granting the motion, the trial court determined that the Appellants should have offered evidence of the repair costs in addition to the proffered diminution in fair market value evidence. Carter and Sweeney contend that they sustained their burden of proof and that the trial court erred in granting Coalfield’s JNOV motion.

After a review of the parties’ arguments, the record, and the applicable law, we find no error in the trial court’s grant of Coalfield’s motion for JNOV on the Sweeneys’ claims. However, we agree with the Carters that the court erred in granting Coalfield’s motion for JNOV on their claims, and accordingly reverse and remand this matter to the trial court for further proceedings not inconsistent with this opinion.

NOTE:  Standard on review of Judgment NOV noted:

At the outset, we note that a motion for JNOV shall not be granted unless “there is a complete absence of proof on a material issue or if no disputed issues of fact exist upon which reasonable minds could differ.” Bierman v. Klapheke, 967 S.W.2d 16, 18-19 (Ky.1998). We review a decision granting JNOV for clear error. Moore v. Environmental Const. Corp., 147 S.W.3d 13, 16 (Ky. 2004). We must review the evidence presented to the jury, drawing all reasonable inferences most favorable to the verdict returned by the jury and that we must uphold the trial court's decision if a reasonable person could not have found as the jury did. Id. Moreover, in our determination we must bear in mind that,

In ruling on either a motion for a directed verdict or a motion for judgment notwithstanding the verdict, a trial court is under a duty to consider the evidence in the strongest possible light in favor of the party opposing the motion. Furthermore, it is required to give the opposing party the advantage of every fair and reasonable inference which can be drawn from the evidence. And, it is precluded from entering either a directed verdict or judgment n.o.v. unless there is a complete absence of proof on a material issue in the action, or if no disputed issue of fact exists upon which reasonable men could differ.
Taylor v. Kennedy, 700 S.W.2d 415, 416 (Ky.App. 1985).

1132. ARBITRATION AGREEMENTS; NURSING HOME ADMISSION.
KINDRED NURSING CENTERS LIMITED PARTNERSHIP, ET AL.
VS.
SLOAN (LYNNE)
OPINION VACATING AND REMANDING
MOORE (PRESIDING JUDGE)
THOMPSON (CONCURS) AND LAMBERT (CONCURS)(SENIOR STATUS JUDGE)
2009-CA-001629-MR
TO BE PUBLISHED
MERCER

MOORE, JUDGE: Kindred Nursing Centers Limited Partnership d/b/a Harrodsburg Health Care Center, Kindred Healthcare Operating, Inc., Kindred Healthcare, Inc., and Kindred Hospitals Limited Partnership (Kindred) appeal from an August 13, 2009 order of the Mercer Circuit Court which denied Kindred’s motion to compel arbitration. We vacate and remand.

NOTE:  Standard of review re unappelable interlocutory order.

Under KRS 417.060, a person may seek a judicial order to compel arbitration upon a showing that a valid arbitration agreement exists and that the opposing party refuses to arbitrate. If the opposing party challenges the existence of a valid arbitration agreement, the circuit court “shall proceed summarily to the determination of the issue so raised.” KRS 417.060(1).
Appellate review of an otherwise unappealable interlocutory order arises under KRS 417.220(1)(a). The standard of review by our Court from appeals arising under this statute was discussed in Conseco Finance Servicing Corp. v. Wilder, 47 S.W.3d 335, 340 (Ky. App. 2001) as follows:

It may also be well to note that our review of a trial court’s ruling in a KRS 417.060 proceeding is according to usual appellate standards. That is, we defer to the trial court’s factual findings, upsetting them only if clearly erroneous or if unsupported by substantial evidence, but we review without deference the trial court’s identification and application of legal principles. . . .

Here, the circuit court made no factual findings nor can we determine whether the circuit court’s ruling was based upon the application of legal principles justifying a de novo review by this Court. The circuit court’s order does indicate that the court “considered the record” and “heard arguments of counsel.” Under the circumstances presented in this case, in reliance upon Conseco, we believe the circuit court is bound by Kentucky Rules of Civil Procedure (CR) 52.01, which mandates that a court set forth specific findings of fact and separate conclusions of law in its order or judgment.

1134. VENUE; WAIVER; DEFAULT JUDGMENT.
WINKLER (DWIGHT)
VS.
GERMANN (JEANETTE)
OPINION REVERSING AND REMANDING
ACREE (PRESIDING JUDGE)
VANMETER (CONCURS) AND WINE (CONCURS)
2009-CA-001684-MR
TO BE PUBLISHED
BOYLE

ACREE, JUDGE: Dwight Winkler appeals the August 18, 2009 order of the Boyle Circuit Court finding Winkler waived venue of the action brought by appellee Jeanette Germann, based in part on the conclusion that the action was governed by the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692a – 1692o, and ordering Winkler to respond to Germann’s post-judgment interrogatories following a default judgment. Because Boyle Circuit Court was an improper venue, and because venue was never waived, the default judgment is void. Therefore we must reverse and remand the case for entry of an order dismissing the complaint.

NOTE:  Legal standard addressed re waiver of venue:

Relying on Cash v. E'Town Furniture Co., 363 S.W.2d 102 (Ky. 1962), Winkler argues that he never waived his right to object to venue. In Cash,
The issue of law presented is whether a judgment by default may be rendered against a defendant in a transitory action where the defendant is not a resident of the county in which the action was brought, nor was he served with summons in that county, nor did he make defense to the action before judgment was entered.
Cash, 363 S.W.2d at 102. Our highest court concluded that such a judgment is void, based on the following reasoning, which we excerpt and adopt here.
[P]rior to the adoption of the Civil Rules of Procedure, a default judgment entered under circumstances recited above would be void. See Caywood v. Williams, 218 Ky. 282, 291 S.W. 377, and Gover v. Wheeler, 296 Ky. 734, 718 S.W.2d 404. But CR 12.08 provides that a party waives all defenses and objections, with certain exceptions, which he does not present either by motion or by answer. That Rule is identical to the Federal Rule
-3-
12(h) which was construed in Zwerling v. New York & Cuba Mail S. S. Co., D.C. 33 F.Supp. 721, and Clover Leaf Freight Lines v. Pacific Coast Wholesalers Association, 7 Cir., 166 F.2d 626, in which there was a quotation from the opinion in Commercial Casualty Ins. Co. v. Consolidated Stone Co., 278 U.S. 177, 49 S.Ct. 98, 73 L.Ed 252. The substance of those Federal Court decisions is that the defense is waived by failure to make timely objection. Because the question had not been considered by this Court since adoption of the Civil Rules, the [circuit court] followed the reasoning of the Federal cases.

However, the sections of the Civil Code upon which the earlier [Kentucky] decisions were founded were transferred to the Statutes at the time the Civil Rules were adopted. What were Sections 78 and 79 of the Civil Code are now KRS 452.480 and 452.485, which provide:

“KRS 452.480[C.C. 78]. An action which is not required by the foregoing provisions of KRS 452.400 to 452.475 be brought in some other county may be brought in any county in which the defendant, or in which one of several defendants, who may be properly joined as such in the action, resides or is summoned.”

“KRS 452.485[C.C. 79]. In action brought pursuant to KRS 452.480, against a single defendant, there shall be no judgment against him, unless he be summoned in the county wherein the action is brought; or, unless he reside in such county when the action is brought and be summoned elsewhere in this state; or, unless he make defense to the action before objecting to the jurisdiction of the court.”

Unless CR 12 overrides those sections of the Statutes there is no question but that the judgment taken herein is void. See Gover v. Wheeler, supra. Had it been intended that the Civil Code Sections have no effect, they would not have been transferred to the Statutes. The Civil Rules were not intended to fix or affect jurisdiction or venue. CR 82 provides that: “These rules shall not be construed to extend or limit the jurisdiction of any court of this Commonwealth or the venue of actions therein.” Consequently, we are of the opinion that a judgment which is taken in violation of the provisions of KRS 452.485 is void.
Cash, 363 S.W.2d at 102-03.

The statutes and rules cited in Cash have not changed since that case was
rendered. Unless we can find a distinction between Cash and the case before this Court now, we can reach only one conclusion – that the default judgment is void.

1140. DENIAL OF UNEMPLOYMENT BENEFITS.
HUTCHISON (CAROLYN J.)
VS.
KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION, ET AL.
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
HENRY (CONCURS)(SENIOR STATUS JUDGE) AND ISAAC (CONCURS)
2010-CA-000032-MR
TO BE PUBLISHED
JEFFERSON

ACREE, JUDGE: Carolyn Hutchison appeals the December 3, 2009 opinion of the Jefferson Circuit Court affirming the administrative denial of unemployment benefits. Finding the circuit court properly applied the law, we affirm.

NOTE:  STANDARD OF REVIEW of ADMINISTRATIVE AGENCY'S FINDINGS OF FACT AND CONCLUSIONS OF LAW:

As the circuit court correctly noted, an administrative agency’s findings of fact are reviewed for clear error, and its conclusions of law are reviewed de novo. “The judicial standard of review of an unemployment benefit decision is whether the [Commission’s] findings of fact were supported by substantial evidence and whether the agency correctly applied the law to the facts.” Thompson v. Kentucky Unemployment Insurance Commission, 85 S.W.3d 621, 624 (Ky. App. 2002) (citations omitted).

OTHER ACTIONS TAKEN:

  • Ritchie v. Comm. opinion corrected.
  • Gibson v. KFBM.  Denied petition for rehearing and modifing opinion.
  • Countryman Ins. Co. v. Oakes.  Denied pet for rehearing.
  • AIG Domestic Claims, Inc. v. Tussey.  Denied pet for rehearing.

CIIVL, TORTS, INSURANCE, WC:


1145
BORDERS (BARRY)
VS.
BUSH AND BURCHETT, ET AL.
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
ACREE (CONCURS) AND STUMBO (CONCURS)
2010-CA-000486-WC
NOT TO BE PUBLISHED
WORKERS' COMP

1148
SELECT SPECIALTY HOSPITAL
VS.
TURNER (DONNA), ET AL.
OPINION AFFIRMING
WINE (PRESIDING JUDGE)
THOMPSON (CONCURS) AND VANMETER (CONCURS)
2010-CA-000852-WC
NOT TO BE PUBLISHED
WORKERS' COMP

1149
YOUNG (LARRY V.)
VS.
HOME DEPOT, ET AL.
OPINION AFFIRMING
TAYLOR (PRESIDING JUDGE)
SHAKE (CONCURS) AND STUMBO (CONCURS)
2010-CA-001131-WC
NOT TO BE PUBLISHED
WORKERS' COMP