COA 2011 Minutes for April 22, 2011 — Nos. 408 425

COA 2011 Minutes for April  22, 2011 –    Nos. 408  425

408.  Criminal Procedure.  Search and seizure.
FRAZIER (THOMAS) VS. COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING IN PART, REVERSING IN PART AND REMANDING
VANMETER (PRESIDING JUDGE)
DIXON (CONCURS) AND LAMBERT (DISSENTS AND FILES SEPARATE OPINION)
2009-CA-000561-MR
TO BE PUBLISHED
BOONE

VANMETER, JUDGE: Thomas C. Frazier appeals from the February 25, 2009, final judgment and sentence of imprisonment of the Boone Circuit Court whereby he was adjudged guilty of various offenses.

409. Business Law.  Contracts.  Guarantee.
SMITH (HOLLIS) VS. BETHLEHEM SAND & GRAVEL CO., LLC.
OPINION AFFIRMING
MOORE (PRESIDING JUDGE)
TAYLOR (CONCURS) AND WINE (CONCURS)
2009-CA-000913-MR
TO BE PUBLISHED
JEFFERSON

MOORE, JUDGE: This matter focuses upon the validity and enforceability of a guaranty agreement between Bethlehem Sand & Gravel Co., LLC, and Hollis Smith, which purports to hold Hollis absolutely and unconditionally liable for the balance of a $500,000 promissory note executed on September 15, 2005, between Bethlehem, and Hollis‟s company, Brooks Sand & Gravel, LLC. By way of
background, Hollis signed the promissory note in question on behalf of Brooks as its president and chief executive officer; the promissory note contained a default provision which accelerated all amounts owed upon any event of default, including the filing of a bankruptcy petition; and Brooks defaulted on that note by declaring bankruptcy on February 9, 2006. Bethlehem chose not to participate in Brooks‟ bankruptcy, and instead filed suit against Hollis in Jefferson Circuit Court to collect the balance of the note under the terms of the guaranty agreement. The parties filed cross-motions for summary judgment. And, in a February 26, 2009 order, the circuit court upheld the guaranty agreement and granted summary judgment in favor of Bethlehem.
Hollis now appeals, contending, as he did before the circuit court, that the guaranty agreement is invalid and unenforceable. However, after careful review of the record, we find no merit to Hollis‟s arguments. Therefore, we affirm the circuit court‟s decision. Additional facts of this case will be discussed as they become relevant to our analysis.

420. Divorce. QDRO.  Pension division.
MCMULLIN (LEWIS G.) SR. VS. MCMULLIN (PHYLLIS H.)
OPINION AFFIRMING
WINE (PRESIDING JUDGE)
CLAYTON (CONCURS) AND COMBS (CONCURS)
2010-CA-000843-MR
TO BE PUBLISHED
MERCER

WINE, JUDGE: Lewis G. McMullin, Sr., appeals from a post-dissolution qualified domestic relations order (―QDRO‖) dividing his pension benefits with his ex-wife, Phyllis H. McMullin. On appeal, Lewis argues that the trial court erred in its interpretation of the settlement agreement between the parties concerning the division of a pension fund and that the legal doctrines relied upon by the trial court were inapplicable. Upon review of the record, we affirm the trial court, albeit not on all of the stated grounds.

425.  Workers Compsensation and "loss of license" provision in UPS Collective Bargaining agreement and subject to dollar for dollar credit
UPS AIRLINES VS. WEST (EDWIN COREY), ET AL.
OPINION AFFIRMING
WINE (PRESIDING JUDGE)
VANMETER (CONCURS) AND SHAKE (CONCURS)
2010-CA-001433-WC
TO BE PUBLISHED
WORKERS' COMP

WINE, JUDGE: UPS Airlines (“UPS”) petitions this Court for review of a decision of the Workers‟ Compensation Board (“the Board”) reversing and remanding the opinion and award of the Administrative Law Judge (“ALJ”). The question presented for our review is whether the “Loss of License” benefit plan, as negotiated under a collective bargaining agreement between UPS and the
1    Senior Judge Ann O‟Malley Shake sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

Independent Pilots Association (“IPA”), is exclusively funded and thus, subject to the dollar for dollar credit under Kentucky Revised Statute (“KRS”) 342.730(6). UPS contends that the Board misconstrued controlling law by finding that UPS was not entitled to a credit for the Loss of License benefits it paid to the appellee, Edwin Corey West, an IPA pilot, against the workers‟ compensation benefits West was awarded. After a careful review of the record, we affirm the Board, finding that UPS is not entitled to a credit against the workers‟ compensation benefits that were paid to West.

Nonpublished Tort, Procedure, etc – AKA TORT REPORT

410.  Summary Judgement.  Too many issues of genuine fact in tort case.
Stephens v. McCullough, NPO, Fayette County
2009-CA-000933-MR
NOT TO BE PUBLISHED

STUMBO, JUDGE: Erin Stephens appeals from a Fayette Circuit Court summary judgment in favor of Dewayne “Dank” Caudill and Bonnie Jean McCullouch.1 Erin contends that Dewayne and Bonnie are liable for the injuries she sustained when Richard McCullouch2 shot her. Following a careful review of the record, we find summary judgment was inappropriate and reverse and remand this case to the trial court.

We find that summary judgment was improperly granted. Erin
brought suit alleging negligence, negligent supervision, and negligent failure to secure a handgun. There are too many genuine issues of material fact in this case to grant summary judgment.

416.  Attorney Lien.  Family law case.
Meehan v. Ruby
2009-CA-002402-MR
NOT TO BE PUBLISHED
JEFFERSON

Gwen Meehan appeals the opinion and order of the Jefferson Circuit Court finding that her attorney‟s lien was invalid. We affirm.

Meehan contends that she was authorized to attach a lien to the Rubys‟ property to secure the payment of her legal fees pursuant to KRS 376.460. She argues that the statute expressly permits an attorney to have a lien “upon all claims” in which she institutes suit on behalf of a client. She further argues that there is no question that she instituted suit in this case on Josefina‟s behalf. Thus, she contends that she had a right to the attorney‟s lien pursuant to KRS 376.460.

While the attorney‟s lien statute does not require that money has to be paid on a judgment before an attorney can file a lien as stated in Arny v. Johnson, 443 S.W.2d 543, 545 (Ky. 1969), the right to file a lien can only arise when the suit handled by the attorney results in the creation or obtaining of attachable assets. Rice v. Kelly, 226 Ky. 347, 10 S.W.2d 1112, 1115 (1928).
After reviewing the record, we conclude that Meehan was not entitled to file an attorney‟s lien against the Rubys‟ real estate pursuant to KRS 376.460. While we acknowledge Meehan‟s argument that Rice involved an interpretation of an earlier version of our attorney‟s lien statute, the language of the prior statute and of the present statute are very similar. Additionally, the current statute expressly provides the manner in which a lien may be filed and, while the statute provides a right to a lien in a suit involving the recovery of money or property, it does not authorize a lien in cases without the recovery of attachable assets.

Furthermore, the right to file an attorney‟s lien is founded upon the theory that the attorney‟s services and skills produced the property that the client now possesses. Exchange Bank of Kentucky v. Wells, 860 S.W.2d 785, 787 (Ky.App. 1993). Therefore, consistent with our courts‟ interpretation of the attorney‟s lien statute for over a century, we conclude that KRS 376.460 does not permit a lien against property or assets that did not arise directly as a result of the underlying suit. Wilson v. House, 10 Bush 406, 73 Ky. 406 (1874). Therefore, because Meehan‟s legal services did not result in the recovery of any property or money on Josefina‟s behalf, she was not entitled to file an attorney‟s lien.

418.  Dog Bite Statute.  Owner.
Bell v. Kruse
2010-CA-000323-MR
NOT TO BE PUBLISHED
KENTON

STUMBO, JUDGE: Ashley Bell appeals from a partial summary judgment which determined Joseph Kruse was not liable for an injury resulting from a dog bite. Bell argues that summary judgment was improper as Kruse was an “owner” of the dog as it is defined by statute. We agree and reverse the summary judgment.

We find that granting summary judgment in favor of Kruse was in error. Kruse allowed Herindon and Robinson to keep dogs on the premises owned by him. He could have not allowed dogs on his rental property. By allowing the dogs to stay on the property, he became an “owner” pursuant to KRS 258.095(5). When the dog injured Bell, Kruse, along with Herindon and Robinson, became potentially liable for her injuries pursuant to KRS 258.235(4). These two statutes are clear and unambiguous. A plain reading shows that Kruse is an “owner” in this situation and may be to some degree liable for Bell’s injuries.

KRS 258.235(4) states that “[a]ny owner whose dog is found to have caused damage to a person, livestock, or other property shall be responsible for that damage.” KRS 258.095(5) defines an owner, “when applied to the proprietorship of a dog, includes every person having a right of property in the dog and every person who keeps or harbors the dog, or has it in his care, or permits it to remain on or about premises owned or occupied by him.”

This is not to say Kruse is one hundred percent liable for the injuries; he has defenses.
Even if [KRS 258.235(4)] created a strict liability action, negligence principles are still applicable, as the dog owner’s liability should be subject to the doctrine of comparative negligence. Under a strict liability theory, the owners of an animal may exculpate themselves from liability by showing that the harm was caused by the victim’s fault, or by the fault of a third person for whom the owner was not responsible, or by a fortuitous circumstance. Carmical v. Bullock, 251 S.W.3d 324, 327 (Ky. App. 2007). See also Dykes v. Alexander, 411 S.W.2d 47 (Ky. 1967) (no liability to trespassers); Jordan v. Lusby, 81 S.W.3d 523 (Ky. App. 2002) (no liability when the injured party assumed the risk).

We find that Kruse fits the definition of owner as set forth by the statutes above. It will, therefore, be up to the finder of fact to determine and, if appropriate, apportion the liability of the parties in this action. We reverse the summary judgment and remand this case to the circuit court.

422.  Workers Comp.
Whites Lodging v. Shields
2010-CA-001135-WC
NOT TO BE PUBLISHED
WORKERS' COMP

424.  No Fault Insurance.  PIP.  Lost wages.  Self-employed.
GANT (DONNA), ET AL.
VS.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
OPINION AFFIRMING
MOORE (PRESIDING JUDGE)
COMBS (CONCURS) AND ISAAC (CONCURS)
2010-CA-001377-MR
NOT TO BE PUBLISHED
SCOTT

MOORE, JUDGE: Robert and Donna Gant appeal the Scott Circuit Court’s entry of summary judgment in favor of State Farm Mutual Automobile Insurance Company. After a careful review of the record, we affirm.
1 Senior Judge Sheila R. Isaac sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute (KRS) 21.580.

On November 12, 2005, Donna Gant and her minor son were involved in a motor vehicle accident in which her minor son sustained injuries that required Donna to temporarily forego operating her daycare business to care for him. On June 5, 2007, Donna submitted a Kentucky No-Fault Application for Benefits- Personal Injury Protection (PIP) to State Farm claiming lost wages. She prepared and attached a spreadsheet to her application entitled “Donna Gant Lost Income.” Because Donna was self-employed, State Farm responded on August 27, 2005, with a request for her to provide her tax return so that her lost wages could be calculated. On that same day, State Farm sent a letter to Donna’s counsel requesting verification of her lost wages. Donna failed to provide any additional information to substantiate the amount of her lost wages.

The circuit court ruled in favor of State Farm, finding that Donna had failed to provide reasonable proof of her wage loss, pursuant to KRS 3042.39- 210(1). In doing so, the court relied upon Kentucky Farm Bureau v. Troxell, 959 S.W.2d 82, 84 (Ky. 1997) for the proposition that a claimant’s statement of lost wages, without additional proof, is “wholly insufficient” to reasonably prove lost wages. The court therefore found that Donna had not produced reasonable evidence.

Donna now appeals. Although Donna presents several points, they fall within two distinct arguments supporting why the court erred: 1) the circuit court improperly weighed evidence at the summary judgment stage, and 2) the trial court improperly overlooked evidence produced by Donna, which in her opinion, sufficed to meet her burden on summary judgment.

Thus, under the summary judgment standard and the guidance of Troxell, Donna’s testimony and unsubstantiated itemization of her lost wages were insufficient to defeat summary judgment. The court also properly disregarded Donna’s assurances that she would endeavor to produce additional evidence in the future, as such hope that a party will obtain evidence in the future will not suffice to survive summary judgment. Neal, 426 S.W.2d at 479-80. Donna had ample opportunity to conduct discovery. She had approximately two years prior to the motion for summary judgment in which to conduct discovery, yet she failed to produce any evidence to meet her burden when confronted with a summary judgment motion. See Hartford, 579 S.W.2d at 630. Finding no error, we affirm.