Campbell County Courthouse, Alexandria, Kentucky. Built in 1840. This was the 4th Courthouse for the County. Design was by William Riley and built by Rev. James M. Jolley, local Baptist Minister. Started in 1840, finished in 1842 at a cost of $5,885. Remodeled in 1928 with addition of a new clock tower and front entrance portico. Image courtesy of Keith Vincent @ CourtHouseHistory.com. Historical info from Carpenter’s “Kentucky Courthouses”.
Published Court of Appeals appellate cases for this week –
October 9, 2015: Links are to full text of PDF decision with AOC.
832. Kentucky Employment Retirement and post-retirement limitations; collateral estoppel applied to the state
Kentucky Retirement Systems vs. Debra Stephens
COA Published Opinion Affirming; Scott County
COA applied collateral estoppel to KERS regarding post-retirement limitation on re-employment with a participating agency. Retirement and benefits received not voided.
In determining whether a party is entitled to equitable estoppel, the following elements must be examined:
1. Conduct, including acts, language and silence, amounting to a representation or concealment of material facts;
2. The estopped party is aware of these facts;
3. These facts are unknown to the other party;
4. The estopped party must act with the intention or expectation his conduct will be acted upon; and
5. The other party in fact relied on this conduct to his detriment.
Board of Trustees, Kentucky Retirement Systems v. Grant, 257 S.W.3d 591, 594 (Ky. App. 2008); citing Gray v. Jackson Purchase Production Credit Ass’n, 691 S.W.2d 904, 906 (Ky. App. 1985).
The KERS, if anyone is, should be aware of the statutes regarding retirement and reemployment by a participating agency. The hearing officer never found that Stephens was aware of the issue her part-time employment caused. Smith and the KERS provided counseling to the retiree, Stephens, thus, it expected its advice to be relied upon. Stephens relied on the information she received from KERS via Smith, her benefits counselor, to her detriment when she retired believing her work with Communicare was not an issue. Thus, the hearing officer’s determination that equitable estoppel was not a valid defense was in error as it was not supported by substantial evidence. The Board erred in issuing an Order to that effect and the Franklin Circuit Court correctly found that equitable estoppel applies in this case.
833. Workers Compensation. Carpal turnnel and causation.
Shirley Miller vs. Go Hire Employment Development
COA Published Opinion Affirming in Part, Reversing in Part and Remanding; Workers Compensation Board
849. Workers Compensation.
Uninsured Employers Fund vs. Poplar Brook Development LLC
COA Published Opinion Affirming in Part, Vacating in Part and Remanding
Selected Court of Appeal’s “not to be published” decisions on Trials, torts, insurance and civil procedure from Oct. 9, 2015. Links are to full text of decision in PDF at AOC.
831. Insurance. Claim of Negligence against agent for full coverage which omitted UIM.
George Stephen Watson vs. Kenneth Elswick
COA NON Published dedision Affirming; Scott County
KRAMER, JUDGE: George Stephen Watson and Charmin Watson’s adult son, Dustin, was injured in an automobile accident. After discovering that their insurance policies did not include underinsured motorist (UIM) coverage, the parents filed a complaint alleging negligence against their insurance agent, Kenneth Elswick. The Scott Circuit Court granted summary judgment to Elswick. It is from this opinion and order that the Watsons appeal.
In Flowers v. Wells, 602 S.W.2d 179 (Ky. App. 1980), a panel of this Court held that, based on the clear language of the statute, UIM coverage is optional and not mandatory. “The legislature obviously could have made underinsured coverage mandatory but elected to require it to be furnished only ‘upon request.’” Flowers further concluded that “‘full coverage,’ as used in relation to automobile or motor vehicle insurance, means insurance in such amount and for such coverage as is made mandatory by statute.” Id.
836. Tort Claim used defendant’s guilty plea as judicial admission in civil claim. Judicial admission, res judicata, collateral estoppel.
Melva Moffett vs. Manning Shaw
COA NON Published Opinion Affirirming. McCracken County.
CLAYTON, JUDGE: Melva Moffett, administratrix of Moffett’s estate, and Monica Jones, mother and next friend of Moffett’s minor children, on behalf of the estate and minor children of Ezra Moffett, Jr., who are plaintiffs in the underlying civil action, appeal the May 1, 2014 summary judgment entered by the McCracken Circuit Court. Further, Edgar Yanez and his mother, Virginia Yanez, defendants in the underlying civil action, cross-appeal the summary judgment. The Court of Appeals granted the Yanezes’ motion to consolidate the appeals.
A judicial admission…is a formal act of a party (committed during the course of a judicial proceeding) that has the effect of removing a fact or issue from the field of dispute; it is conclusive against the party and may be the underlying basis for a summary judgment, directed verdict, or judgment notwithstanding the verdict. Robert G. Lawson, The Kentucky Evidence Law Handbook § 8.15[4], at 590 (4th ed. LexisNexis 2003) (emphasis omitted). Testimony of a party may constitute a judicial admission if deliberate and unequivocal and unexplained or uncontradicted. Bell v. Harmon, 284 S.W.2d 812, 815 (Ky.1955).
Witten v. Pack, 237 S.W.3d 133, 136 (Ky. 2007). Here, Yanez’s guilty plea occurred during a judicial proceeding, was conclusive against him, and was both unequivocal and uncontradicted. Hence, we conclude that it was a judicial admission.
As stated, “a criminal conviction may be used for purposes of collateral estoppel in later civil proceedings… but it is also clear that to be so utilized the criminal judgment must of necessity finally dispose of the matters in controversy. Gossage v. Roberts, 904 S.W.2d 246, 248 (Ky. App. 1995)(citing Roberts v. Wilcox, 805 S.W.2d 152 (Ky. App. 1991). Here, Yanez was criminally convicted, and hence, the issue of the driver’s identity was answered.
A review of the concepts of collateral estoppel provides that the essential elements are (1) identity of issues; (2) a final decision or judgment on the merits; (3) a necessary issue with the estopped party given a full and fair opportunity to litigate; and, (4) a prior losing litigant. Moore, 954 S.W.2d at 319. In the case at bar, Yanez’s guilty plea met these elements.
839. Negligence Claim For injuries from raised dance floor at The Connection. Argument.
Gels Co. Inc. vs. Katherine Hesselgrave
COA NON Published Opinion Affirming. Jefferson County
Appellant’s final argument on appeal is that the trial court should have granted its motion for a mistrial due to improper remarks made by Appellee’s trial counsel during closing arguments. Appellant brings to our attention two instances of alleged improper closing remarks.
The first occurred when Appellee’s counsel repeatedly referred to Appellant as a “successful” and “profitable” business. Counsel for Appellant objected and argued that Appellee’s counsel was trying to paint Appellant as being wealthy and having deep pockets. The trial court overruled the objection but advised Appellee’s counsel to reign in his comments. Appellant claims that the trial court should have granted a mistrial because of these comments. This issue is not preserved for our review because Appellant’s counsel did not request a mistrial or admonition in this instance. Lewis v. Charolais Corp., 19 S.W.3d 671, 676-77 (Ky. App. 1999).
The second instance of improper remarks occurred when Appellee’s counsel stated:
This is our community and our community will decide, that’s what juries do, they represent the community our community. They will decide what they will tolerate and what they will not. That’s what happens in criminal cases, that’s what happens in civil cases. The community will decide what you will tolerate.
Appellant’s counsel objected to these remarks as improper “send a message” remarks and requested a mistrial. The trial court sustained the objection, but denied the motion for a mistrial.
“A trial court has discretion in deciding whether to declare a mistrial, and its decision should not be disturbed absent an abuse of discretion.” Clay v. Commonwealth, 867 S.W.2d 200, 204 (Ky. App. 1993) (citing Jones v. Commonwealth, 662 S.W.2d 483 (Ky. App. 1983)).
It is universally agreed that a mistrial is an extreme remedy and should be resorted to only when there is a fundamental defect in the proceedings which will result in a manifest injustice. The occurrence complained of must be of such character and magnitude that a litigant will be denied a fair and impartial trial and the prejudicial effect can be removed in no other way.
Gould v. Charlton Co., Inc., 929 S.W.2d 734, 738 (Ky. 1996) (citations omitted).
Even if an argument is improper, however, the question remains whether the probability of real prejudice is sufficient to warrant a reversal. In making this determination, each case must be judged on its unique facts. An isolated instance of improper argument, for example, is seldom deemed prejudicial. But, “when it is repeated in colorful variety by an accomplished orator its deadly effect cannot be ignored.” Rockwell Int’l Corp. v. Wilhite, 143 S.W.3d 604, 631 (Ky. App. 2003) (citations and footnotes omitted).
“Send a message” remarks are used to fuel the passion of jurors in hopes of rendering a positive verdict and are improper. See generally Wilhite, supra. This was, however, an isolated incident and Appellee’s counsel made no further remarks. The closing argument of Appellee’s counsel lasted approximately 36 minutes. This “send a message” statement lasted only around 30 seconds. This did not reach the level of manifest injustice that would require a mistrial. The trial court did not abuse its discretion in overruling the motion.
[gview file=”https://kycourtreport.com/wp-content/uploads/2015/10/MNT10092015.pdf”]
