COA 2011 Minutes for May 20, 2011 — Nos. 491-511

COA 2011 Minutes for May 20, 2011 –      Nos. 491-511

493. Property law; mineral interests. Breach of special warranty deed, damages;  Merger. 
STEWART (DAN D.), ET AL.
VS.
SLUSHER (JOHN C.), ET AL.
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
DIXON (CONCURS) AND STUMBO (CONCURS)
2009-CA-001297-MR
TO BE PUBLISHED
KNOX

ACREE, JUDGE: Appellants, Dan D. Stewart, Jr. and Betsy Stewart, seek reversal of the Knox Circuit Court’s order granting summary judgment in favor of the Appellees, John C. Slusher and James R. Golden, for damages and interest resulting from the Stewarts’ lease to a third party of mineral interests in land they previously agreed to convey to Slusher and Golden. The Stewarts also seek reversal of the circuit court’s denial of their motion for summary judgment to collect $50,000 from Slusher and Golden allegedly owed as consideration for the option to purchase the land. We affirm the judgment.

505.  Civil procedure, amendments to complaint and relation back doctrine, and real parties in interest.
DONI BIGGS D/B/A BIGGS
FARM, INC.; STEPHEN PALMER,
TRUSTEE IN BANKRUPTCY FOR BIGGS FARM, INC.; AND BIGGS FARM, INC.
VS.
EATON SALES, INC.; EATON
FARMS MANAGEMENT, LLC
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
COMBS (CONCURS) AND WINE (CONCURS)
2010-CA-000639-MR
TO BE PUBLISHED
FAYETTE

CLAYTON, JUDGE: Appellants Doni Biggs and Stephen Palmer, trustee in bankruptcy for Biggs Farm, Inc., appeal from three orders of the Fayette Circuit Court. First, they appeal the July 21, 2005 order that denied Palmer’s motion to be substituted as a party for Biggs Farm, Inc. and to amend the complaint. Next, Biggs and Palmer appeal the trial court’s April 6, 2009 order denying their motions to file an amended complaint to add Biggs Farm, Inc. as a plaintiff party, substitute Palmer for Biggs Farm, Inc., and allow Palmer’s intervening complaint. They also appeal the February 17, 2010 order granting Appellees’ motion for summary judgment against both Doni Biggs d/b/a as Biggs Farm, Inc. and Stephen Palmer, as trustee in bankruptcy for Biggs Farm, Inc. Lastly, Biggs and Palmer appeal the March 17, 2010 order denying their motion to reconsider the February 17, 2010 order. After careful review, we affirm.

Biggs and Palmer maintain that Doni Biggs and Biggs Farm, Inc. are separate plaintiffs and real parties in interest. Additionally, they2 contend that the amended complaint of Biggs Farm, Inc.; the proposed complaint of Palmer, trustee in bankruptcy for Biggs Farm, Inc.; and the complaint of the intervening plaintiff, Palmer, as trustee, related back to Biggs’s filing of the complaint on November 25, 2002. Finally, they maintain that Eaton does owe a duty to exercise ordinary care to Biggs. In contrast to the Appellants’ arguments, Eaton counters that Biggs Farm, Inc. was never a party to the original suit, that the claims do not relate back to the original filing, and that Eaton does not owe a duty to Biggs.

Essentially, in this case we are addressing the trial court’s efficacy
with regard to two separate types of motions, that is, motions to amend and motions for summary judgment. Given that each motion has a separate standard of review, we will review them independently of each other.

Notwithstanding the expiration of the statute of limitations, Biggs and Palmer rely on the only possible procedural mechanism available to permit the filing of an amended complaint to relate back to the filing of the original complaint. They moved to file an amended complaint pursuant to CR 15.03 and its relation back provision. In essence, though, the statute of limitations argument proffered by Biggs and Palmer is a red herring. Since Biggs Farm, Inc. was never a party to the original complaint, Palmer’s motion to file a complaint as an intervening plaintiff was not timely.  Interestingly, by its own literal terms, CR 15.03 does not apply to amendments that change a party plaintiff, but only those that change the party defendant. CR 15.03(2). Indeed, it is a rare case in which a plaintiff can claim a “mistake of identity” for the named plaintiffs. Generally, plaintiffs know who they are. Yet, CR 15.03 has been extended by analogy to changes in party plaintiffs but only in limited circumstances.

in order for relation back to occur when adding a party plaintiff, the defendant must have adequate notice of the newly proposed plaintiff, must not have been unduly prejudiced, and the newly proposed plaintiff must have an identity of interests with the original party plaintiff. In other words, Biggs and Biggs Farm, Inc. must have an identity of interests.

To summarize, there is no identity of interest between an individual and a corporation. The original complaint referred only to Biggs and not to Biggs Farm, Inc. Biggs’s and Palmer’s contention that the motion to amend must be granted because of the differences between Biggs’s and Biggs Farm, Inc.’s interests, in itself, defeats the motions to amend the complaint. Moreover, a pleading cannot be amended that never existed. Here, Biggs Farm, Inc. never filed a complaint and, thus, it has no complaint or pleading to amend. The trial court did not abuse its discretion in denying the motions to amend the complaint.

Since no evidence has been provided that Biggs and Eaton had any type of relationship, neither party has a duty of care toward the other. Biggs did not own the horses, and hence, there are no genuine issues of material fact. We agree with the trial court’s summary judgment as related to Biggs. In turn, the trial court’s grant of summary judgment to Eaton against Palmer, as trustee in bankruptcy for Biggs Farm, Inc., was not erroneous not only because Biggs Farm, Inc. was never a party to the action, but also because Palmer filed the intervening complaint after the statute of limitations had run.

TORT REPORT OF NONPUBLISHED DECISIONS:

494. Qualified immunity.
MARTIN (GARY), ET AL
VS.
O'DANIEL (STEPHEN)
OPINION AND ORDER AFFIRMING
KELLER (PRESIDING JUDGE)
LAMBERT (CONCURS) AND SHAKE (CONCURS)
2009-CA-001738-MR
2009-CA-001739-MR
2009-CA-001795-MR
NOT TO BE PUBLISHED
FRANKLIN

KELLER, JUDGE: Three Kentucky State Police Officers, Det. Gary Martin (Det. Martin), Lt. Colonel Mike Sapp (Lt. Col. Sapp), and Sgt. Bobby Motley (Sgt. Motley) appeal from the circuit court's denial of their motion for summary judgment on the issue of qualified immunity. Having reviewed the record and the arguments of counsel, we affirm.

At the outset, we note O'Daniel's argument that the trial court's denial
of the appellants' motions for summary judgment is not appealable. The appellants made motions for summary judgment based on two arguments: that they are entitled to qualified immunity; and that O'Daniel had not presented sufficient evidence to meet his burden of proving malicious prosecution. Following the hearing on the appellants' motions, the trial court summarily denied them. The court did not specifically address whether that denial was based on a finding that the appellants are not entitled to qualified immunity or on a finding that O'Daniel had raised sufficient issues of material fact regarding malicious prosecution. Because granting either motion would have put an end to this matter, we presume the court denied the appellants' motions on both grounds.

"The general rule under CR 56.03 is that a denial of a motion for summary judgment is . . . not appealable because of its interlocutory nature . . . ." Transportation Cabinet, Bureau of Highways, Com. of Ky. v. Leneave, 751 S.W.2d 36, 37 (Ky. App. 1988). However, the denial of a motion for summary judgment based on a claim of qualified immunity is properly appealable. See Haney v. Monsky, 311 S.W.3d 235 (Ky. 2010). Therefore, the court's denial of the appellants' motions for summary judgment on the issue of malicious prosecution is not properly before us. However, the court's denial of the appellants' motions for summary judgment on the issue of qualified immunity is.

ualified immunity is available in claims sounding in negligence;
however, O'Daniel's claim of malicious prosecution does not sound in negligence. To the contrary, it is an intentional tort, requiring proof of malice; and the trial court believed there were genuine issues of material fact regarding malice on the part of the appellants. To reiterate what we said earlier, we might have found differently regarding the aforementioned; however, that issue is unfortunately not before us.    Therefore, although we would like to see this matter come to an end, we hold that the appellants are not entitled to qualified immunity and we affirm.
Finally, for the reasons set forth above, we deny O'Daniel's motion to dismiss this appeal.

497.  Medical negligence.  Plaintiff's need for expert re standard of care.
ROSS (SHAWNA)
VS.
HARPRING (JOHN E.), ET AL.
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
CLAYTON (CONCURS) AND NICKELL (CONCURS)
2010-CA-000013-MR
NOT TO BE PUBLISHED
JEFFERSON

THOMPSON, JUDGE: This is a medical malpractice action in which Shawna Ross appeals from a summary judgment granted by the Jefferson Circuit Court in favor of Dr. John E. Harpring and Neurosurgical Institute of Kentucky (NIK). The circuit court found that Ross’s failure to present medical expert testimony that Dr. Harpring’s conduct when treating Ross fell below the standard of care and caused her injury, warranted summary judgment. We affirm.

Dr. Harpring, a member of NIK, performed surgery on Ross for the purposes of removing her disk at C5-6; removing osteophytes; and fusing at the vertebrae at C5-6. She alleges that because Dr. Harpring negligently failed to remove the osteophyte at C6 she underwent two additional surgeries on her cervical spine.

Dr. Villanueva performed the two subsequent surgeries. He allegedly informed Ross and her legal counsel that it would have been preferable for Dr. Harpring to remove the osteophyte through the back and that Dr. Harpring negligently performed Ross’s first surgery. On October 2, 2007, Ross filed this malpractice action against Dr. Harpring based in part on Dr. Villanueva’s statements.

Subsequent to the filing of the complaint, Dr. Villanueva became a member of NIK. At the time summary judgment was granted, no formal statement or affidavit was obtained from Dr. Villanueva and he had not been deposed.

Ross did not secure an expert witness and failed to make any expert disclosures in accordance with the court’s order. When confronted with a motion for summary judgment, Ross did not respond. Moreover, in her CR 59.05 motion and even in her argument to this Court, there is a complete failure to explain why Dr. Villanueva or any expert had not been deposed in the two years since the complaint was filed. Under the circumstances, there is a complete failure of proof and summary judgment was appropriate.

502. Workers compensation.
BILL CHURCH PAINTING CO., INC.
VS.
BLANKENSHIP (CLAUDE W.), ET AL.
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
DIXON (CONCURS) AND STUMBO (CONCURS)
2010-CA-000552-WC
NOT TO BE PUBLISHED
WORKERS' COMP

511. WORKERS' COMP
LOVE (LONZIE)
VS.
AIK , ET AL.
OPINION AFFIRMING
MOORE (PRESIDING JUDGE)
CAPERTON (CONCURS) AND STUMBO (CONCURS)
2011-CA-000113-WC
NOT TO BE PUBLISHED

OPINIONS ORDERED PUBLISHED BY SUPREME COURT ON MAY 11, 2011:

DELMAR PARTIN 2008-CA-002360-MR KNOX
VS.
COMMONWEALTH OF KENTUCKY

COMMONWEALTH OF KENTUCKY, 2008-CA-001455-MR PIKE
TRANSPORTATION CABINET,
DEPARTMENT OF HIGHWAYS
VS.
THOMAS BLACKBURN; PATRICIA
BLACKBURN; AND LUCILLE BLACKBURN
ENTERED: 05/11/2011