The Court of Appeals posted 23 decisions this week, numbered 1 through 2 with 5 decisions designated for publication.
Published Court of Appeals Decisions
Here are the links to the full text of each published case for this week with a short synopsis or topic listed for each.
3. Lien Priority on Property
Hays v. Nationstar Mortgage LLC
Court of Appeals Published Opinion REVERSING AND REMANDING Jefferson Cir. Ct.
STUMBO, JUDGE: Carroll L. Hays appeals from an In Rem Judgment and Order of Sale rendered by the Jefferson Circuit Court. Hays argues that the Court improperly applied Kentucky Legal Sys. Corp. v. Dunn, 205 S.W.3d 235 (Ky. App. 2006), to determine that the lien of Plaintiff/Appellee Nationstar Mortgage LLC is superior to a prior Judgment Lien filed by Hays. Finding error, we REVERSE AND REMAND the Order on appeal.
11. Qualified Official Immunity for School Official’s Discretionary Acts
Turner v. Ritchie (this link has been corrected. link in minutes is broken)
Court of Appeals Published Opinion REVERSING AND REMANDING Breathitt Cir. Ct.
J. LAMBERT, JUDGE: Interlocutory appeal taken by officials in the Breathitt County school system from trial court order denying their request for qualified official immunity in their individual capacities. Having carefully considered the record and the applicable case law, COA held their actions were discretionary and that they were entitled to qualified official immunity. School officials failed to report to law enforcement sexting and inappropriate text message between male school teacher and several of his students. The teacher later pled guilty to rape, sodomy, sexual abuse, and distribution of pornographic images to minors, and he assumed that this was all related to only one of students. A civil suit was filed on behalf of the female student against the school officials for negligence; negligent hiring, training, supervision, and retention; violation of a special relationship; violation of the Restatement (Second) of Torts § 314A; negligent and intentional infliction of emotional distress; violation of §§ 1-3 of the Kentucky Constitution; and breach of contract. At the relevant times in the matter before this Court, Breathitt County Schools had in place policies addressing the supervision of students.
12. Premises Liability.
McCoy v. Family Dollar Store of Kentucky
Court of Appeals Published Opinion AFFIRMING Martin Cir Ct
McCoy filed a complaint on May 13, 2014, seeking $1,312,327.46 damages from Family Dollar and R&J for injuries she sustained when she tripped on a wheel stop and fell in the parking lot of the Family Dollar store in Inez, Kentucky. Family Dollar was a tenant with another Defendant the landlord who constructed the parking lot. There was testimony that the wheel stops were marked yellow when built and unchanged until the fall.
First, the plaintiff’s expert’s report was never properly before the trial court. Second,
“We agree with Family Dollar and R&J that the circuit court properly held that their duty of care was not breached by the presence of the wheel stop in the parking lot. The wheel stop was not defective or damaged, and it did not create an unreasonably dangerous condition necessitating the need to warn any invitees about, or correct, the condition. There was no evidence in the record that wheel stops were unreasonably dangerous, and McCoy failed to place into evidence any testimony, an affidavit, or even a report establishing this assertion. Accordingly, no duty arose on the part of either Family Dollar4 or R&J to warn McCoy or to correct the condition, and there is no evidence that the injury McCoy sustained was foreseeable. Additionally, McCoy testified that she was not distracted and that there was nothing slick or any debris in the parking lot. Therefore, the circuit court did not commit any error as a matter of law in granting summary judgment and dismissing McCoy’s complaint.”
16. Nursing Home Admission and Mandatory Arbitration Agreement
Diversicare LeasingCorp. v. Adams, Executor of Est. of Pearl Adams
Court of Appeals Published Opinion AFFIRMING Elliott Cir Ct.
COA held the circuit court properly declined Diversicare’s request to reform Readmission Agreement 2 to incorporate an earlier admission agreement that contained an arbitration clause. It is purely speculative as to which document was meant to be incorporated into Readmission Agreement 2, be it one of the earlier admission agreements or an admission agreement dated November 29, 2006, which was never produced. Because Diversicare was unable to establish with any certainty which document was intended to be incorporated by reference in Readmission Agreement 2 and because the admission agreement did not otherwise contain an arbitration clause, we must hold that the circuit court did not err as a matter of law in declining to enforce an arbitration agreement purportedly referenced in an unspecified document.
17. Wrongful death. 911 Dispatcher. Duty of public official and relationship test.
McCuiston, Adm’or of Est. of Joyce McCuiston v. Butler
Court of Appeals Published Opinion AFFIRMING Henderson Cir Ct
Ms. McCuiston can appropriately be classified as a member of the general public with whom Butler interacted as a 911 dispatcher. Without a special relationship, Butler’s action fell under the “public duty” doctrine, which does not make public officials guarantors of public safety with a universal duty of care to protect the general public from harm or accident. Butler did not establish a “special relationship” with Ms. McCuiston, and therefore, he did not have a duty of care to her and was protected from liability by the public duty doctrine. Without any legal duty, there can be no wrongful death action. Although Ms. McCuiston’s death is a tragedy, it is not one for which Butler or the City of Henderson can be held liable.
Having determined that Butler had no special relationship with Ms. McCuiston, and thus, cannot be liable in a wrongful death action, the remaining issues are rendered moot.
Selected Not To Be Published Decisions Dealing with tort, insurance and civil procedure
2. Peremptory challenges and involuntary plaintiff.
Cayce v. Sumner
COA Not to Be Published Opinion AFFIRMING Christian Cir. Ct.
“The Court of Appeals should not substitute its judgment for that of the trial judge in determining whether antagonistic interests exist for the purpose of awarding peremptory challenges in the absence of an abuse of discretion.” Sommerkamp v. Linton, 114 S.W.3d 811, 814-15 (Ky. 2003). “On appeal, the question is not whether the reviewing court would have decided the issue differently, but whether the findings of fact are clearly erroneous, the opposite result is compelled or the trial judge abused his discretion.” Id. at 815 (citations omitted). “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
Although Sommerkamp concerned medical negligence and co-defendants, the factors are illustrative for our purposes.
Generally, there are three elements to be considered in determining if coparties have antagonistic interests.
They are 1) whether the coparties are charged with separate acts of negligence; 2) whether they share a common theory of the case; and 3) whether they have filed cross-claims. Additional important factors are whether the defendants are represented by separate counsel; whether the alleged acts of negligence occurred at different times; whether the defendants have individual theories of defense; and whether fault will be subject to apportionment. All of these factors are to be weighed by the trial court in determining if the defendants have antagonistic interests and thus are entitled to separate peremptory challenges.
In the case at hand, Ms. Gonzales and Ms. Sumner pled different tort claims than Ms. Wasson and these parties were represented by separate legal counsel. Also, the court found as relevant that the Cayces would only have a finite amount of personal resources to use to satisfy any judgment entered against them individually; therefore, some parties might not be able to recover any damages. We agree with the trial court that these factors indicate that Ms. Gonzalez and Ms. Sumner had antagonistic interests against Ms. Wasson at the time of jury selection, thereby justifying the allocation of separate peremptory challenges.
13. Heirs bound by estates property settlement.
Sullivan v. McCown
COA Not to Be Published Opinion AFFIRMING Pike Cir Ct.
20. Failure to have experts in med mal case result in dismissal by court and affirmed on appeal.
Hall v. Harreld
COA Not to Be Published Opinion AFFIRMING Jefferson Cir Ct
22. Statute of limitations expired in claim again home inspector
Rabe v Frohn
COA Not to Be Published Opinion AFFIRMING Boone Cir Ct.
All decisions regardless of publication are posted and can be read, but those decisions designated not for publication cannot be cited as legal authority. See, KRCP 76.28(4)(c)(“Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.”)
You will find the complete list of this week’s decisions below with number, names of parties, case number, lower court (eg., county), etc. with a hot link to the full text of the decision. Please note that you will have to check Case Information for each decision for finality, amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.
For links to all our posts on the minutes of the Court of Appeals, then click here. Click here for AOC minutes for this week.
For the index to archived minutes at the official AOC page, then click here.
