Old and the New. Side by Side. Older Bracken County Courthouse on the left, and the New Bracken County Judicial Center on the Right.
In New Meadowview Health and Rehabilitation Center LLC v. Estate of Mona Hardin, the power of attorney was not good enough to hold the attorney in fact to a compulsory arbitration agreement and signed as family member.
We do not see too many cases on appeal addressing jury selection, strikes for cause, using peremptory when challenge for cause denied, requesting “proponderance” in the instructions, standard of proof raised in void dire and summation, and lawyer advertising all wrapped up in a new trial motion. Well, we got all this and more in Estate of Michael Neal v. Dr. Richard Floyd. which should be a good read since noted attorney Keith Mitnick tried this medical negligence case in Lexington and who has written several books for trial lawyers.
The third published decision in Lamb v. Light Heart, Inc. is a trip down memory lane on contract law minus any reference to Hamer v. Sidway and a Carbolic Smokeball. Here two folks were remodeling a house and had a dispute on the money which got a little intense the past years between the parties which resulted in the court adding this little bit of dicta in its decision — “This lawsuit, which began more than eight years ago has generated a great deal of anger and animosity among the parties. While we recognize the heightened emotions due to underlying relationships of the parties, we suggest that everyone adhere to the wisdom of ‘Blessed is he that blesseth thee, and cursed is he that curseth thee.’ Numbers 24:9.
COA DECISIONS DESIGNATED FOR PUBLICATION:
328. Arbitration. Power of Attorney.
New Meadowview Health and Rehabilitation Center LLC v. Estate of Mona Hardin
AFFIRMING AND REMANDING Jefferson Circuit Court order that Meadowview did not meet its burden to compel arbitration for claims for negligence, medical negligence, corporate negligence, violations of the Long Term Resident’s Rights Act,1 and wrongful death. See. Ping v. Beverly Enterprises, Inc., 376 S.W.3d 581, 588 (Ky. 2012).
Given the express language providing that the POA would become effective upon Mona’s incapacity or disability, it was incumbent upon Meadowview to establish that it reasonably believed the POA was in effect. Here, William signed the purported Arbitration Agreement only as a “Family Member” of Mona, with no indication that he was acting as her attorney- in-fact. And finally, William’s apparent authority to execute Mona’s admission documents does not extend to collateral agreements, such as the Arbitration Agreement at issue in this case. Ping, 376 S.W.3d at 594.
In conclusion, Meadowview failed to meet its burden of establishing the existence of a valid and enforceable arbitration agreement. The partial agreement and extrinsic evidence presented by Meadowview was insufficient to establish a complete contract. Furthermore, Meadowview failed to establish that William Hardin was authorized to execute the Arbitration Agreement on Mona’s behalf. Therefore, the trial court properly denied Meadowview’s motion to compel arbitration.
329. Medical negligence. Trial Procedure. Instructions. Voir dire (standard of proof discussion), summation (std of proof again), preponderance of evidence in civil case, striking juror for cause raised within the context or motion for new trial. Note Keith R. Mitnik represented the plaintiff estate.
Estate of Michael Neal v. Dr. Richard Floyd
AFFIRMING IN PART, REVERSING IN PART AND REMANDING Fayette Cir. Ct. jury verdict in favor of doctor on medical negligence claims arising in heart surgery that he did not breach standard of care.
The Neal Estate raised four issues on appeal: The Neals’ counsel was improperly prevented from discussing the standard of proof in a civil case during voir dire; the Neals’ counsel was improperly prevented from explaining the standard of proof during closing argument; the trial court erred by not answering the jury’s question with respect to the preponderance of evidence standard of proof in a civil case; and Juror 4243 should have been stricken for cause.
This is a definite read for trial lawyers since specific issues were discussed such as discussing the preponderance standard and instructions, non-economic damages, lawyer advertising, and using a preempt when court denies strike.
333. Business Transations. Cost Plus Remodeling Contract between two folks (not the homeowner).
Lamb v. Light Heart, Inc.
AFFIRMING Franklin Cir Ct. bench trial ruling that no contract existed.
For a contract to exist the following elements must be present: there must be an offer and acceptance, full and complete terms outlining the basis of the contract, and consideration. Cantrell at 384 (Ky. App 2002). The document which both Lamb and London signed on January 20, 2006, constitutes an offer for work and states the amount of consideration to be paid on a per hour basis.
However, the one element missing from that document is the actual terms of the contract. The document contains no beginning date, ending date, definition of what work is to be done, amount of the contract, or when the terms of the contract are complete. For a contract to be valid, it must set forth the promises of performance to be rendered by each party, and the terms of the contract must be sufficiently complete and definite to enable a court to determine the measure of damages in the event of breach. Kovacs v. Freeman, 957 S.W.2d 251, 254 (Ky. 1997).
Selected cases that were not designated for publication in tort, insurance and civil law.
322. Family Court. Attorneys Fees and Contract.
Ruby v. Scherzer
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING Jefferson Circuit Court.
340. Practice of Law by non-lawyer administrator of estate prosecuting med neg claim.
Estate of Edna Louise Brown v. Jewish Hospital & St. Mary’s Healthcare
AFFIRMING Jefferson Circuit Court dismissal of claim by administrator of estate handling claim pro se (and who was not an attorney).
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 (published and not to be published). See explanatory note following PDF of the decisions below.
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NOTE: 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.”)
