COA 2011 Minutes for April 29, 2011 — Nos. 426-442

COA 2011 Minutes for April 29, 2011 –      Nos. 426-442

428.  CRIMINAL LAW
JACKSON (CARROL PAUL)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
CAPERTON (CONCURS) AND COMBS (CONCURS)
2009-CA-001611-MR
2009-CA-001612-MR
TO BE PUBLISHED
LETCHER

KELLER, JUDGE: Carroll Paul Jackson (Paul) appeals from the Letcher Circuit Court’s judgment convicting him of first-degree sexual abuse. Consolidated with that appeal is Susan Jackson’s (Susan) appeal from the Letcher Circuit Court’s judgment convicting her of tampering with a witness. For the reasons set forth below, we affirm.

431.  REAL PROPERTY
WALDRIDGE (BRYAN), ET AL.
VS.
HOMESERVICES OF KENTUCKY, INC., ET AL.
OPINION REVERSING AND REMANDING
THOMPSON (PRESIDING JUDGE)
LAMBERT (CONCURS) AND MOORE (DISSENTS AND FILES A SEPARATE OPINION)
2010-CA-000264-MR
TO BE PUBLISHED
SCOTT

THOMPSON, JUDGE: This is an action against Homeservices of Kentucky, Inc. d/b/a Rector-Hayden Realtors, a real estate brokerage firm and its agent, Alma L. Hopkins, for failure to disclose material conditions relating to the sale of residential property and breach of fiduciary duties allegedly owed to Bryan and Sonja Waldridge. The circuit court granted summary judgment upon its review of the evidence of record and upon the doctrine of res judicata arising from a prior administrative proceeding before the Kentucky Real Estate Commission.

The facts present a unique situation where Rector-Hayden Realtors’ agents had been involved in the sale of the property and may have had actual knowledge of the flooding which caused damage to the home. Moreover, there is more than substantial evidence that the Golubics knew that the house had flooded yet in the disclosure statement failed to disclose the extent of the flooding and damage. Thus, there is a question of fact as to whether Rector-Hayden Realtors or Hopkins knew the disclosure was false. Although there is conflicting evidence, under the circumstances, we cannot say that there is no material issue of fact warranting a summary judgment and precluding trial.

We neither reach the merits of the Waldridges causes of action nor debate the factual issues. At the summary judgment stage, such an inquiry is beyond the scope of our review. We hold that a seller’s real estate agent owes a duty to a buyer to not commit fraud by either misrepresenting a material fact or failing to disclose a material fact of which they have actual knowledge and of which the buyer is unaware. The potential liability imposed is no greater than that imposed by the principles of common law fraud.

Finally, the issue of whether Rector-Hayden Realtors and Hopkins owed a fiduciary duty to the Waldridges as dual agents for the Waldridges and the Golubics was not addressed by the circuit court in the summary judgment. Although the circuit court originally found that a fiduciary duty existed, it made no finding regarding the issue in its final judgment. Therefore, we leave the issue to be addressed by the circuit court on remand.
Based on the foregoing, the summary judgment is reversed and the case remanded for further proceedings.

434.  WORKERS COMPENSATION
GAINES GENTRY THOROUGHBREDS / FAYETTE FARMS
VS.
MANDUJANO (ADAN), ET AL.
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
CLAYTON (CONCURS) AND COMBS (CONCURS)
2010-CA-000663-WC
TO BE PUBLISHED
WORKERS' COMP

LAMBERT, SENIOR JUDGE: Gaines Gentry Thoroughbreds/Fayette Farms (Gaines Gentry) petitions for review of a decision of the Workers’ Compensation Board. The Board affirmed an Administrative Law Judge’s determination that Adan Mandujano sustained compensable work-related injuries in an automobile accident during the course of his employment with Gaines Gentry. Gaines Gentry challenges the conclusion of the ALJ and the Board that Mandujano’s injuries occurred during the course and scope of his employment. For reasons that follow, we affirm.

436.  REVENUE AND TAXATION.
CITY OF BOWLING GREEN, KENTUCKY
VS.
HOTELS.COM, L.P. , ET AL.
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
COMBS (CONCURS) AND KELLER (CONCURS)
2010-CA-000825-MR
TO BE PUBLISHED
WARREN

LAYTON, JUDGE: This is an appeal of the dismissal of the Appellant’s case by the Warren Circuit Court. After considering the briefs of the parties, the supplemental cases filed by the parties, and oral arguments, we hold as follows:

BACKGROUND INFORMATION The Appellant, City of Bowling Green (“Bowling Green”), brought an action against several online travel companies (“OTCs”) asserting that Kentucky Revised Statutes (KRS) 91A.390(1) required them to pay a tax on accommodations for hotels rooms located in Bowling Green. OTCs sell vacant hotel rooms on the internet to consumers. They contract with the hotels for a certain price per room and gain income through selling the rooms to consumers at a higher rate. The OTCs collect transient room taxes from the consumer based on the retail amount of the room. The hotels, however, only pay taxes on the discounted amount of the room.

Finally, the City argues that the trial court erred in dismissing its complaint in its entirety, including claims for conversion, unjust enrichment and constructive trust arising from the OTCs’ collection of the full transient room tax collected on behalf of the hotels. We find, however, that it would be the consumer who would have standing to challenge the OTCs in such a manner, rather than the City. Thus, we affirm the decision of the trial court dismissing the action in its entirety.

438. FAMILY LAW
ABDUR-RAHMAN (YUSUF)
VS.
PETERSON (NICOLE R.)
OPINION REVERSING AND REMANDING
CAPERTON (PRESIDING JUDGE)
COMBS (CONCURS) AND KELLER (CONCURS IN PART, DISSENTS IN PART, AND FILES SEPARATE OPINION)
2010-CA-001366-ME
TO BE PUBLISHED
JEFFERSON

CAPERTON, JUDGE: Yusuf Abdur-Rahman appeals from the trial court’s order amending a domestic violence order to include Yusuf and Nicole Peterson’s minor child. After a thorough review of the parties’ arguments, the record, and the applicable law, we find reversible error and, accordingly, reverse and remand this matter to the trial court for further proceedings.

Nonpublished Tort, Procedure, etc – AKA TORT REPORT

429.  CIVIL PROCEDURE
BRANTLEY (JAMIE R.), ET AL.
VS.
BELL (LONNIE), ET AL.
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
COMBS (CONCURS) AND THOMPSON (CONCURS)
2009-CA-001646-MR
2009-CA-001659-MR
NOT TO BE PUBLISHED
DAVIESS

NICKELL, JUDGE: Jamie R. Brantley (formerly Buschkoetter), as administratrix of the estate of Gerald R. Buschkoetter, deceased, and as guardian and next friend of Britt Renae’ Brantley (“Appellant”), appeals from a summary judgment in favor of two Kentucky State Police (KSP) officers, Lonnie Bell and Brett Coomes, on appellant’s claims for wrongful death and loss of parental consortium. Appellant argues that summary judgment was erroneously granted as there are disputed issues of material fact and the trial court erred in denying her motion for relief pursuant to CR1 60.02. We affirm.

432.  INSURANCE
BALDWIN (ADA)
VS.
LAWYERS MUTUAL INSURANCE COMPANY OF KENTUCKY
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
TAYLOR (CONCURS) AND LAMBERT (DISSENTS BY SEPARATE OPINION)
2010-CA-000592-MR
NOT TO BE PUBLISHED
JEFFERSON

STUMBO, JUDGE: Ada Baldwin, Administratrix of the Estate of Hattie Mae Rose, appeals from a Summary Judgment of the Jefferson Circuit Court in favor of Lawyers Mutual Insurance Company of Kentucky (“LMICK”). LMICK filed an action in Jefferson Circuit Court seeking a declaration of its limit of liability arising under a professional liability insurance policy it issued to Martha M. Eastman and Eastman Law Offices (collectively referred to as “Eastman”). Baldwin, who filed a legal malpractice action against Eastman in a separate proceeding, intervened in LMICK’s action. Baldwin contends that the trial court erred in determining that there was no ambiguity in the insurance contract between LMICK and Eastman, that the court must look to when the claim first began to determine which policy provisions are to be given effect, and that LMICK’s potential liability under the policy is $250,000 rather than $1,000,000. We find no error, and accordingly affirm the order on appeal.

433.  INSURANCE
GORMAN (CHRIS)
VS.
STITES & HARBISON, PLLC
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
LAMBERT (CONCURS) AND MOORE (CONCURS IN PART AND DISSENTS IN PART BY SEPARATE OPINION)
2010-CA-000620-MR
NOT TO BE PUBLISHED
JEFFERSON

STUMBO, JUDGE: Chris Gorman appeals from a summary judgment entered in favor of Stites & Harbison. The underlying case is an action for malicious prosecution, defamation, and abuse of process. Gorman argues that the trial court erred when it granted summary judgment. We find that there was no error and affirm.

As the trial court correctly discussed, there are six elements of the tort
of malicious prosecution or wrongful use of civil proceedings:
(1) the institution or continuation of original judicial proceedings, either civil or criminal, or of administrative or disciplinary proceedings, (2) by, or at the instance, of the plaintiff, (3) the termination of such proceedings in defendant’s favor, (4) malice in the institution of such proceeding, (5) want or lack of probable cause for the proceeding, and (6) the suffering of damage as a result of the proceeding.
Raine v. Drasin, 621 S.W.2d 895, 899 (Ky. 1981). We find that the issue of probable cause is dispositive. Stites &
Harbison had probable cause to bring the suit. -5-
The question of probable cause is related not to whether the facts exist to prove a lawsuit, but whether it was reasonable to believe that the client’s claim is tenable. In the context of probable cause, tenable “depends not on the actual state of the case in point of fact, but upon the honest belief of the person instituting it. It may flow from a belief that turns out to be unfounded as long as it is not unreasonable.” Ammerman v. Newman, 384 A.2d 637, 640 (D.C. 1978).
Prewitt v. Sexton, 777 S.W.2d 891, 896 (Ky. 1989).
Id. at 897.
The question of probable cause underlying the tort of wrongful use of civil proceedings does not turn on whether a court subsequently decides the attorney erred in his view of the law, any more than it turns on whether he was subsequently unable to prove his client’s claims regarding the facts, so long as his views were tenable at the outset.
What facts and circumstances amount to probable cause is a question of law. Whether they exist or not, in any particular case where the evidence is conflicting, is a question of fact, to be determined by the jury. But where there is no conflict in the evidence, whether the facts shown amount to probable cause, is ordinarily a question of law for the court.
Craycroft v. Pippin, 245 S.W.3d 804, 806 (Ky. App. 2008) (citing F.S. Marshall Co. v. Brashear, 238 Ky. 157, 37 S.W.2d 15, 17 (Ky. 1931)).

Gorman also sued Stites & Harbison for defamation. Defamation has four elements: defamatory language, about the plaintiff, which is published, and which causes injury to reputation. Columbia Sussex Corp., Inc. v. Hay, 627 S.W.2d 270, 273 (Ky. App. 1981). However, because the alleged defamatory statements in this case were published in judicial pleadings in good faith, they are privileged. Schmitt v. Mann, 291 Ky. 80, 163 S.W.2d 281 (Ky. 1942).

Finally, Gorman’s claim of abuse of process was also properly dismissed.
Generally stated, one who uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which that process is not designed, is subject to liability to the other for harm caused by the abuse of process. There is no liability where the defendant (usually a plaintiff in the underlying action) has done nothing more than carry out the process to its authorized conclusion. (Citations omitted). Sprint Communications Co., L.P. v. Leggett, 307 S.W.3d 109, 113 (Ky. 2010). Here, Stites & Harbison had probable cause to bring suit against Gorman. It cannot therefore be said that the judicial process was wrongfully used.

441.  WORKERS COMPENSATION
SWARTZ MOWING
VS.
SMITH (ANTHONY), ET AL.
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
CLAYTON (CONCURS) AND ISAAC (CONCURS)
2010-CA-001646-WC
NOT TO BE PUBLISHED
WORKERS' COMP

442. WORKERS COMPENSATION
WHEELER (ALLEN)
VS.
FUGATE TRUCKING, INC., ET AL.
OPINION AFFIRMING
MOORE (PRESIDING JUDGE)
CAPERTON (CONCURS) AND STUMBO (CONCURS IN RESULT)
2011-CA-000053-WC
NOT TO BE PUBLISHED
WORKERS' COMP