COA 2011 Minutes for July 1, 2011 — Nos. 628-645 (19 decisions; 5 published)

COA 2011 Minutes for July 1, 2011 — Nos. 628-645 (19 decisions; 5 published)

628. TORTS. SLIP AND FALL. MCINTOSH APPLIED.
FALLER (RHODA)
VS.
ENDICOTT-MAYFLOWER, LLC;
PROFESSIONAL PROPERTY MANAGERS, LLC; AND RADER
ENTERPRISES, INC., D/B/A BUCK’S RESTAURANT
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
TAYLOR (CONCURS) AND COMBS (CONCURS)
2008-CA-001506-MR
TO BE PUBLISHED
JEFFERSON

NICKELL, JUDGE: This Court previously rendered an Opinion affirming this case. See Faller v. Endicott-Mayflower, LLC, — S.W.3d —-, 2009 WL 3878062, rendered November 20, 2009 (NO. 2008-CA-001506-MR). The case is before us again after the Kentucky Supreme Court granted discretionary review and remanded it to us for reconsideration in light of Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010). Having reconsidered our original opinion, we again affirm.

At the heart of this appeal is Rhoda Faller’s fall while leaving a Louisville restaurant. She claims she fell because the historic eatery’s threshold was too narrow and the trial court erred in granting summary judgment to the restaurant.

Unlike McIntosh, who tripped over an unmarked curb while rushing a critically ill patient into an emergency room, Rhoda tripped over a threshold marked with yellow- and black-striped caution tape while leaving a restaurant following a leisurely holiday meal. Rhoda admitted being familiar with the threshold, having traversed it on prior occasions, and admitted she would not have fallen had she been looking in the direction she was walking. The factual distinctions between McIntosh and Rhoda are too great for us to consider Rhoda’s fall foreseeable. Therefore, we agree with the trial court’s award of summary judgment to all three appellees and hold that McIntosh does not require a change in our original opinion.
For the foregoing reasons, we again affirm the decision of the Jefferson Circuit Court and our original opinion.

630. FORECLOSURE. SETTLEMENT AGREEMENT. MEETING OF THE MINDS.
GILL (SUTEJ), ET AL.
VS.
WASHINGTON MUTUAL BANK, ET AL.
OPINION REVERSING AND REMANDING
THOMPSON (PRESIDING JUDGE)
STUMBO (CONCURS) AND LAMBERT (CONCURS)
2009-CA-001126-MR
TO BE PUBLISHED
JEFFERSON

THOMPSON, JUDGE: Sutej and Deborah Gill, husband and wife, appeal from a corrected supplemental judgment entered by the Jefferson Circuit Court overruling their objections and exceptions to a master commissioner’s report. The issue presented is whether the circuit court properly concluded that the Gills and Central Bank of Jefferson County (Central Bank) did not reach an enforceable settlement of their controversy because no evidence existed as to a “meeting of the minds.” Contrary to the circuit court, we conclude that the undisputed evidence is conclusive that there was a meeting of the minds and, therefore, reverse.

635. WILLS AND ESTATES.
HOSKINS (LORENE)
VS.
BEATTY (ANTHONY), ET AL.
OPINION AFFIRMING IN PART, REVERSING IN PART AND REMANDING
VANMETER (PRESIDING JUDGE)
DIXON (CONCURS) AND STUMBO (CONCURS)
2010-CA-000677-MR
TO BE PUBLISHED
CLAY

VANMETER, JUDGE: Lorene Hoskins appeals from the judgment of the Clay Circuit Court which held that Anthony Beatty, executor of the estate of Verner Reid, and the heirs of Verner Reid1 (hereinafter collectively referred to as “the heirs”) could recover certain property, as well as accrued interest and earnings from the property that was bequeathed to them by Verner in his last will and testament. For the following reasons, we affirm in part, reverse in part and remand.

636.  FAMILY LAW.  CUSTODY.
D. (L.)
VS.
H. (O.), ET AL.
OPINION AFFIRMING
DIXON (PRESIDING JUDGE)
NICKELL (CONCURS) AND SHAKE (CONCURS)
2010-CA-000792-ME
TO BE PUBLISHED
WARREN

DIXON, JUDGE: Appellant, L.D., appeals from an order of the Warren Family Court awarding permanent custody of her minor son, O.H., to Appellees, J.H. and M.H., who are O.H.’s paternal grandparents. Finding no error, we affirm.

637.  WILLS. WITNESSED BUT NOT SIGNED.
SMITH (AMY), ET AL.
VS.
SMITH ( CONNIE V.)
OPINION REVERSING
VANMETER (PRESIDING JUDGE)
DIXON (CONCURS) AND STUMBO (CONCURS)
2010-CA-000823-MR
TO BE PUBLISHED
HARLAN

VANMETER, JUDGE: To be admitted to probate as a will, a document which is not wholly in the handwriting of a testator must be subscribed by two witnesses. The issue presented in this case is whether a document may be admitted to probate when two persons actually observed the testator subscribing the document, but only one subscribed her name to the document as a witness. We hold that it may not, and we reverse the Harlan Circuit Court’s order admitting the document to probate.

TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

IF YOU WANT

• WORKERS COMPENSATION LAW UPDATES, I RECOMMEND YOU GO TO THE COMP ED WEB SITE AT http://www.comped.net/.
• FAMILY LAW UPDATES, I RECOMMEND YOU GO TO Diana Skaggs' Divorce Law Journal at http://www.divorcelawjournal.com

632. ARBITRATION. COMPELLING.
MHC KENWORTH, KNOXVILLE/NASHVILLE
VS.
HALL (MIKE), ET AL.
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
CLAYTON (CONCURS) AND TAYLOR (DISSENTS AND FILES SEPARATE OPINION)
2009-CA-002045-MR
NOT TO BE PUBLISHED
KNOTT

LAMBERT, SENIOR JUDGE: MHC Kenworth appeals from the October 16, 2009, order of Knott Circuit Court denying its motion to stay litigation and compel arbitration. Because we discern no error with the trial court’s order, we affirm.