With all of this rain, I thought a picture of one of my day lilies might brighten the day.
The Kentucky Court of Appeals announced 25 decisions on July 10, 2015, with 8 of their opinions designated to be published.
Click here for links to all the archived AOC Court of Appeals minutes at the web site for the Administrative Office of the Courts.
Click here for all of a listing of the Kentucky Court Report’s posts of the weekly COA minutes(or you can always access these within the KCR web site at the uppermost dropdown menu option for the Court of Appeals). AOC version of this week’s decisions can be accessed by clicking here.
Published appellate cases for this week – July 10, 2015:
577. Criminal Law. Hybrid representation.
Lester Wagner vs. Commonwealth of Kentucky
587. Subrogation. Workers Compensation. Contract interpretation.
Liberty Mutual Fire Ins. Co. vs. Walter Cato, Jr.
COA, Published. Jefferson County. Affirming.
On appeal, Liberty Mutual contends that the judgment should be reversed and the matter remanded. It contends that the trial court erred by concluding that it had waived its right to subrogation with respect to the utility companies and that the value of its subrogation claim should be decided in accordance with Texas law.
593. Criminal Law. Affirmed revocation of diversion.
Kevin McVey vs. Commonwealth of Kentucky
594. Lease. Uniform Residential Landlord Tenant Act.
Wildcat Property Management LLC vs. Lindsay Franzen
596. Workers Compensation. Statutory multiplier
Jacqueline Noelle Lunte vs. Two Chicks LLC
Opinion reversing and remanding
597. Affirmed stepchild adoption over biological father’s objection.
P.(R.), Jr. vs. C.(T.A.)
598. Workers Compensation. Affirmed denial of permanent injury and total disability.
Fannie Cruse vs. Henderson County Board of Education
599. Workers Compensation. Affirmed ALJ’s decision not to apply “direct and natural consesquences”
REM Company, Inc. d/b/a Articlean vs. Robert Cummins
Selected not to be published decisions on tort, insurance and civil–
578. Qualified Official Immunity and Individual Capacity.
Dan Logan and David L. Raleigh vs. Sarah Milliner and Kentucky Association of PEP Sponsors, Inc.
Affirming in part, Reversing in part, and remanding; Owen County.
MAZE, JUDGE: David L. Raleigh and Dan Logan bring this interlocutory appeal from an order of the Owen Circuit Court denying their motion to dismiss negligence claims brought against them in their official and individual capacities. We agree with the trial court that there are factual issues regarding whether Logan is entitled to qualified official immunity in his individual capacity. However, we conclude that Logan and Raleigh are clearly entitled to immunity from suit in their official capacities, and that Raleigh is entitled to qualified official immunity in his individual capacity. Hence, we affirm in part, reverse in part, and remand for further proceedings.
583. Arbitration. Nursing Home.
Kindred Healthcare, Inc. vs. Cliff Fields Adm’or of Estate of Jimmie Fields
Affirming; Warren County.
DIXON, JUDGE: Kindred Healthcare, Inc. and associated entities (collectively “Kindred”) appeals from an order of the Warren Circuit Court denying its motion to compel arbitration of claims brought by Appellee, Jimmy Fields. After careful review of the record, we affirm.
Kindred now appeals from the trial court’s order denying its motion to compel arbitration. Ordinarily, such orders are interlocutory and are not immediately appealable. However, an order denying a motion to compel arbitration is an exception and immediately appealable. KRS 417.220(1); See also Conseco Finance Servicing Corp. v. Wilder, 47 S.W.3d 335, 340 (Ky. App. 2001). The enforcement and effect of an arbitration agreement is governed by Kentucky Uniform Arbitration Act (KUAA), KRS 417.045 et seq., and the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 et seq.
We agree with the trial court that the facts cited by Kindred do not suggest that the ‘X’ was a manifestation of Fields’ present intention to consent to the agreement.
595. Appeal. Issues not raised before the trial court.
Randy Allen vs. Mann Auto Sales of Prestonburg, Kentucky
On appeal, Allen presents an argument of res ipsa loquitur – a presumption of negligence based on Mann’s possession of the vehicle. However, we are unable to address the merits of this argument.
An appellate court may not rule on issues which were not raised before the trial court. Fischer v. Fischer, 348 S.W.3d 582, 588 (Ky. 2011). Parties may not submit new theories of error for the first time on appeal. Springer v. Commonwealth, 998 S.W.2d 439, 446 (Ky. 1999). The reasoning behind the rule is that an appeal might be avoided if opposing counsel has the opportunity to respond and the trial court has the opportunity to consider an issue; i.e., the rule promotes judicial economy. Fischer, supra. While there might be merit to an appellant’s argument, a reviewing court may reverse a finding only when it “knows and considers . . . the law and facts upon which the court actually relied. . . . [A] reversal must be based on the trial court’s failure to properly apply the law that was argued to it, not that which might or should have been.” Id. at 590. (Emphasis added).
In this case, we thoroughly searched the record,1 and it did not reveal any mention of the doctrine of res ipsa loquitur before the trial court.
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