Breckenridge Judicial Center. Hardinsburg, Kentucky.
Photo by Michael Stevens 2014.
The Kentucky Court of Appeals announced 28 decisions on December 19, 2014, with three opinions designated to be published.
The three published cases are:
1103. Business Torts.
Halle vs. Banner Industries of N.E. Inc.
COA Published 12/19/2014
Opinion Affirming, Pike County
THOMPSON, JUDGE: This action was filed by the appellees, Banner Industries of N.E., Inc., Gary J. Richard, and Pikeville Energy Group, LLC (PEG) against the appellants, Warren E. Halle, THC Kentucky Coal Venture I, LLC (THC), and West Virginia Coal Venture I, LLC, (WVCI).1 The initial complaint alleged: (1) fraud in the inducement and breach of contract; (2) tortious interference with business relations; (3) civil conspiracy; (4) breach of contract-third party beneficiaries; and (5) trade disparagement. The appellees filed an amended complaint in which they withdrew the breach of contract-third party beneficiaries and trade disparagement claims but added a count of abuse of process solely against THC. The appellants maintain the Pike Circuit Court erred when it denied their motion to dismiss all tort claims asserted against them based on absolute immunity under the judicial statements privilege. Alternatively, they argue no statements made in prior collateral bankruptcy proceedings and lawsuits may be used in support of the asserted tort claims. Affirmed.
1113. Dram Shop.
Butt vs. Independence Club Venture, LTC
COA Published 12/19/2014
Opinion AFFIRMING; Jefferson County
DIXON, JUDGE: Appellants, Walter M. Butt and Karen Petigo, APPELLEE co-administrators of the estates of Brian C. Butt and Michael A. Butt; Stephanie A. McCauley, as mother next friend and conservator for Maggie Elizabeth Ann McCauley; Ashley N. Hazelwood as mother, next friend and conservator for Kile A. Green; and Bruce E. Butt, appeal from an order of the Jefferson Circuit Court granting summary judgment in favor of Appellee, Independence Club Venture, Ltd. d/b/a The Electric Cowboy, and dismissing their cause of action for violation of Kentucky’s Dram Shop Act. Appellants also appeal the trial court’s denial of their motion to set aside an interlocutory agreed order dismissing Appellants’ claim for punitive damages following an intervening change in Kentucky law.
1118. Criminal Law. Motion to suppress in-car video tape.
Bessinger vs. Commonwealth of Kentucky
COA Published 12/19/2014
Opinion AFFIRMING; Oldham County
CAPERTON, JUDGE: Appellants Delbert Bessinger and Paul Carter appeal from the Warren Circuit Court’s reversal of the Warren District Court’s grant of Appellants’ motion to suppress the evidence due to the unavailability of the arresting officer’s in-car video tape. After a thorough review of the parties’ arguments, the record, and the applicable law, we affirm the circuit court.
1123. Dismissal of complaint for failure to state a claim.
Flint vs. Jackson (and Courier Journal)
COA NPO 12/19/2014
Opinion Affirming Dismissal; Jefferson County
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“Continue reading” for the Tort Report and a complete copy of this week’s minutes of ALL decisions with links to their full text.
The Tort Report – Selected decisions this week on tort, insurance and civil law (none other than the published whistleblower decision):
1102. Torts. Jones Act.
Mercado vs. Paducah River Painting, Inc.
COA Not Published Opinion (NPO) 12/19/2014
Opinion Affirming; McCracken County
ACREE, CHIEF JUDGE: At issue is whether Appellant Pastor Mercado qualifies as a “seaman” under 46 U.S.C. § 30104, et seq. (the “Jones Act”). The McCracken Circuit Court found Mercado did not so qualify. We agree and affirm.
1108. Civil Procedure. Wrong Plaintiff Denominted and dismissal per Statute of Limitations
Harmon vs. Higdon’s Appliance Center
COA NPO 12/19/2014
Opinion Affirming Dismissal; Nelson County
There is no question that Paula should have been named as the plaintiff in the complaint; however, Amy was listed as the plaintiff. Accordingly, Amy is the plaintiff below and the appellant in this appeal. Both HAC and GE mention in their respective briefs that Paula has filed a separate non- personal injury lawsuit in Nelson Circuit Court seeking damages for the injuries she sustained in the August 1, 2011, incident. She alleged claims for violation of the Consumer Protection Act, breach of contract, intentional infliction of emotional distress, breach of fiduciary duty, and fraud. GE stated that in arguing that the doctrines of res judicata, estoppel, and law of the case do not apply to defeat her new case because the parties were not the same, Amy’s counsel takes a contradictory position from the position in the present case. In her reply brief in the present appeal, Amy makes a similar argument that both GE and HAC were arguing contradictory positions in the new suit regarding the true plaintiff in the personal injury action. We note that a three-judge motion panel of this Court denied HAC’s petition for writ of prohibition (No. 2014- CA-001066-OA) on October 16, 2014, in which HAC sought a ruling that the circuit court in the subsequent action lacked jurisdiction to proceed. We decline to hold that the arguments made in relation to the later-filed case have any bearing on the present matter.
Because Amy could never produce any evidence that she fell or sustained an injury, the circuit court properly granted summary judgment and dismissed her complaint as a matter of law. Amy’s tangential argument that she did not have the opportunity to complete discovery is similarly without merit.
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