Third Boone County Courthouse, Burlington, Kentucky. Built in 1889 at cost of $20,000. A modern wing was added in later years. Listed in the National Register of Historic Places in 1979 as a contributing property of a historic district. Replaced by Boone County Judicial Center.
PUBLISHED DECISIONS:
202. Workers Compensation.
Napier v. Enterprise Mining Co.
These three consolidated appeals arise from similar facts and procedural histories. They present a common equal protection constitutional challenge to KRS1 342.7305(2). The statute authorizes compensation for occupational hearing loss as provided in KRS 342.730, “except income benefits shall not be payable where the binaural hearing impairment converted to impairment of the whole person results in impairment of less than eight percent (8%)” pursuant to the AMA Guides. COA held the impairment rating threshold in KRS 342.7305(2) unconstitutional. VACATE and REMAND.
206. Real property.
Abbott, Inc. vs. Guirguis
Abbott, Inc., and the Estate of Johnny Brown Russell appeal the entry of a summary judgment by the Hopkins Circuit Court. The Appellants ask this Court to determine whether the trial court properly awarded fee simple ownership of real estate formerly used as a railroad bed to the Appellee, Samuel Guirguis. Having thoroughly reviewed the record, we find the trial court committed no reversible error, and affirm.
207. Lease Agreement. Ambiguous terms.
Foursome Properties, LLC vs. Rite Aid of Kentucky, LLC
This is an appeal from a declaratory judgment action concerning the exclusivity of a provision in a lease agreement. Because the terms of Article 9 are ambiguous, issues of fact regarding the parties’ intent must be resolved by the fact-finder,Cantrell Supply, Inc., 94 S.W.3d at 385; consequently, summary judgment was improper. The Rowan Circuit Court granted judgment in favor of Rite Aid. We affirm.
214. Divorce. Property.
Cobane vs. Cobane
Issues involved classification of non-marital interests in certain property, its valuation of his interest in a family business, and in its division of marital property.
Selected cases that were not designated for publication in tort, insurance and civil law.
203. Execution on Judgment. Law Firm. Corporate Veil, jurisdiction, due process.
Chesley v. Abbott
Stanley Chesley appeals from an order of the Boone Circuit Court which ordered him to turn over his ownership interest in his law firm Waite,Schneider, Bayless & Chesley, Co. L.P.A. (hereinafter “WSBC”) to Appellees. The order also directed him to turn over any money he receives from WSBC to Appellees’ counsel and ordered Chesley to direct certain clients to turn over money owed to him or WSBC to Appellees’ counsel. Chesley argues on appeal that the court did not have jurisdiction over WSBC and could not pierce the corporate veil without WSBC being a party to the underlying action. Chesley claims the court’s order would deprive WSBC of its property without the company being given a chance to defend itself. Appellees argue that the trial court’s order did not directWSBC to act nor was it an order against WSBC, rather, that the order only concerned the actions of Chesley. We agree with Appellees and affirm.
208. Insurance. Exclusion for sexual misconduct.
Ritchie v. Turner
Affirmed. Two exclusions are relevant to this case. The endorsement indicates coverage does not apply to “[a] ‘wrongful act’ arising out of a criminal act, including, but not limited to any ‘sexual offense’ committed or participated in by a ‘Member’1 or any person for whom the member is legally responsible.” Coverage is also excluded if there is a “[w]illful violation of a penal statute or ordinance committed by or with the consent of the Member.” KSBIT denied coverage to Mitchell based on the two exclusions.
218. Civil Procedure. Amended Complaint. Relation Back and applying notice rule.
Eichler v. Shirden’s Cleaning Service
Under limited circumstances, the provisions of CR 15.03 permit an untimely amended complaint to relate back to the original complaint and to avoid a statute-of-limitations defense. See Phelps v. Wehr Constructors, Inc., 168 S.W.3d 395 (Ky. App. 2004). The requirements of CR 15.03 are strictly construed against the plaintiff. Id. at 397 (citing Reese v. General American Door Company, 6 S.W.3d 380, 383 (Ky. App. 1998)).
The notice requirement of CR 15.03(2) can be satisfied by notice imputed to a defendant within the imitations period. Halderman, supra. Notice will be imputed from the original party to a new party where there exists a“sufficient identity of interest.” Id. at 273. A sufficient identity of interest ariseswhere the “legally binding relationships between the original and added partiesimposed on the first-named party a duty promptly to apprise the other laternamed [sic] entity of the lawsuit.” Reese v. General American Door Co., 6 S.W.3d 380, 382 (Ky.App. 1998).
Our review of the record reveals that there was no legally binding relationship between the parties in this case. There is no evidence whatsoever to connect Zalla Enterprises and Shirden’s to any legally binding relationship — muchless one that would impose upon Zalla Enterprises a duty to apprise Shirden’s ofthe legal action that had been erroneously filed against it as the owner or manager of the premises.
Moreover, the “should have known” notice referred to in CR 15.03(2)(b), which gave rise to the “identity of interest” exception, applies onlywhere the plaintiff has mistakenly sued the wrong party and the correct party“knew or should have known” of that fact.
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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 (if not already marked on first page of decision after publication), amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky. Click Court of Appeals Minutes for entire listing of weekly minutes.
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.”)
