A group of appointed Justices of the Peace held the first court in the home of Benjamin Summer, later in the home of John Speed who was paid by the court 45 1/2 pounds sterling. Discussions were held that a permanent building was needed with the first Bullitt County Courthouse, Shepherdsville being completed in 1804 at a cost of $3150 by Henry Crist as a two-story 28 x 26 foot and 32 feet high brick structure. It was topped by a cupola and belfry containing a bell cast in Philadelphia. It was replaced in 1901 by the current courthouse at a cost of $11,500. Cannot tell you where I found this image, but the history was taken from “History of Kentucky Courthouses” by Elizabeth Headley Garr.
Published Court of Appeals Decisions
Links are to full text of PDF published cases for this week.
487. Torts. Conversion.
Jasper d/b/a Creative Touch Jewelry v. Blair
Court of Appeals Published Opinion AFFIRMING Whitley Cir Ct trial order and judgment in favor of Blair for $15,000 in compensatory damages for conversion of diamond ring that Jasper received which had been burgled from Blair
Conversion is an intentional tort and is generally defined as “the wrongful exercise of dominion and control over the property of another.” Jones v. Marquis Terminal, Inc., 454 S.W.3d 849, 853 (Ky. App. 2014) (citations omitted). In this Commonwealth, the elements of the tort of conversion are set forth in Jones as follows:
(1) the plaintiff had legal title to the converted property;
(2) the plaintiff had possession of the property or the right to possess it at the time of the conversion;
(3) the defendant exercised dominion over the property in a manner which denied the plaintiff’s rights to use and enjoy the property and which was to the defendant’s own use and beneficial enjoyment;
(4) the defendant intended to interfere with the plaintiff’s possession;
(5) the plaintiff made some demand for the property’s return which the defendant refused;
(6) the defendant’s act was the legal cause of the plaintiff’s loss of the property; and
(7) the plaintiff suffered damage by the loss of the property.
Jones, 454 S.W.3d at 853 (quoting Ky. Ass’n of Counties All Lines Fund Trust v. McClendon, 157 S.W.3d 626, 632 n.12 (Ky. 2005)).
494. Child custody. Quasi-judicial immunity for court-appointed expert’s opinion testimony in subsequent malpractice claim
Dr. David Feinberg v. Robin Keeton
Court of Appeals Published Opinion REVERSING Carter Cir Ct Order denying quasi-judicial immunity of court-appointed psychologist opinion testimony in child custody determination.
Here, the circuit court appointed Dr. Feinberg to give his recommendation as to the parental fitness of Keeton and Yates based on his interviews and psychological tests. Dr. Feinberg served in this capacity and offered his opinion, subject to cross-examination, for the circuit court to consider before making a final custody determination. Therefore, Dr. Feinberg was entitled to quasi-judicial immunity for his services, and the complaint must be dismissed. The decision of the Carter Circuit Court is reversed.
495. IRA. Beneficiary designations.
Haste, Exector of Estate of David Peck v. The Vanguard Group, Inc.
Court of Appeals Published Opinion AFFIRMING Fayette Cir Ct summary judgment awarding IRA to beneficiaries designated on account following changes after spouse died.
500. Quiet title. Failure to include record owners in action.
Gilland v. Dougherty
Court of Appeals Published Opinion REVERSING and REMANDING Nelson Cir Ct order and judgment in quiet title action for failure to include record owners of property in action.
505. Criminal Law.
Buckler v. Commonwealth of Kentucky
Court of Appeals Published Opinion AFFIRMING Carter Cir Ct
Sodomy in the third degree prohibits, among other things, subjecting incarcerated individuals to deviate sexual intercourse. KRS1 510.090(1)(e). The issue we must decide in this case is whether the Carter Circuit Court erred in overruling Earl Buckler’s pretrial motion to dismiss indictment on the grounds that as a deputy sheriff with the Carter County Sheriff’s Department transporting prisoners to and from a detention facility to the justice center, the terms of the statute did not apply to him. We hold that the trial court did not err, and therefore affirm the trial court’s judgment.
508. Schools. Tuition.
Beechwood Board of Education v. Wintersheimer
Court of Appeals Published Opinion AFFIRMING Kenton Cir Ct order that family did not owe school board for two years tuition for children who did not reside in the Beechwood school district.
510. Workers Compensation. Attorney fees.
Mullins v. Leggett & Platt
Court of Appeals Published Opinion AFFIRMING Workers Comp Board affirming order of ALJ who concluded employer’s workers compensation carrier could reduce Mullins’ permanent partial disability benefit to recoup the present day value of the lump sum payment of attorney fees.
Selected Non-Published Decisions Dealing with tort, insurance and civil procedure:
486. Arbitration.
Kindred Nursing Centers Limited Partnership v. Kleckner
COA Not to Be Published Opinion AFFIRMING Boyle Cir Ct order denying Kindred’s motion to compel arbitration of claims related to the decedent’s stay at Kindred nursing facility in Danville. Kindred argued that Ping was not dispositive regarding power of attorney language (“full power . . . to draw, make and sign any and all checks, contracts or agreements; . . . to institute or defend suits concerning my property or rights[.]”
496. Civil Procedure. CR 54.02 vs. CR 60.02.
Barrister Construction v. Rouck Plumbing Co.
COA Not to Be Published Opinion VACATING and REMANDING Jefferson Cir Ct.
In Watson v. Best Financial Services, Inc., 245 S.W.3d 722, 726 (Ky. 2008), the Kentucky Supreme Court stated, “In any case presenting multiple claims or multiple parties, CR 54.02, like FRCP 54(b), vests the trial court —as the tribunal most familiar with the case—with discretion to ‘release for appeal final decisions upon one or more, but less than all, claims in multiple claims actions.’” Id., citing Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437, 76 S.Ct. 895, 100 L.Ed. 1297 (1956).
In the instant case, the trial court’s July 2, 2012, and October 23, 2013, orders were not designated as final and appealable, and the underlying contract and damages claims were still pending before the court. Those orders, unlike the default judgment in Asset Acceptance, were interlocutory in nature and subject to revision or vacation by the trial court pursuant to CR 54.02(1) at any time prior to final judgment of all the claims. Because CR 60.02 applies to final judgments, and the orders the trial court set aside were not final and appealable, the trial court improperly evaluated Rouck’s claims for relief under that rule. We again emphasize that during oral arguments, Rouck’s counsel conceded he filed for relief under the wrong rule, and Barrister argued that it had not had an opportunity to present its arguments to the trial court under CR 54.02. Thus, we remand for a determination under CR 54.02 as to whether Rouck is entitled to the relief it requests.
Based on the foregoing, we vacate the Jefferson Circuit Court’s January 5, 2015, order and remand for consideration 54.02.
497. Qualified immunity
Kelso v. Allen
COA Not to Be Published Opinion AFFIRMING Lee Cir Ct order denying motion to dismiss complaint on qualified immunity to individual defendants and other grounds regarding medical treatment provided. Government agencies were dismissed.
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 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.
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