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PUBLISHED DECISIONS OF COA:

568. LEGAL NEGLIGENCE.
BENTON (NARDOS A.)
VS.
BOYD & BOYD, PLLC, ET AL.
OPINION AFFIRMING
COMBS (PRESIDING JUDGE)
MOORE (CONCURS) AND LAMBERT (CONCURS)
2010-CA-002058-MR
TO BE PUBLISHED
FAYETTE

COMBS, JUDGE: This is a case involving a lawsuit for legal malpractice filed by Dr. Nardos Benton against the attorney and the law firm representing her in her divorce action. The Fayette Circuit Court granted summary judgment to attorney Traci Boyd and to the law firm of Boyd & Boyd, PLLC, and dismissed the legal malpractice action. Dr. Benton has appealed that dismissal.

The Supreme Court has provided guidance as to the requisite elements of a legal malpractice claim:

A plaintiff in a legal malpractice case has the burden of proving “1) that there was an employment relationship with the defendant/attorney; 2) that the attorney neglected his duty to exercise the ordinary care of a reasonably competent attorney acting in the same or similar circumstances; and 3) that the attorney’s negligence was the proximate cause of damage to the client.” Based on these factors, a legal malpractice case is the “suit within a suit.” To prove that the negligence of the attorney caused the plaintiff harm, the plaintiff must show that he/she would have fared better in the underlying claim; that is, but for the attorney’s negligence, the plaintiff would have been more likely successful.

Marrs v. Kelly, 95 S.W.3d 856, 860 (Ky. 2003). (Footnotes and internal citations to footnotes omitted.)

The trial court found that Dr. Benton was equitably estopped from asserting her negligence claims; i.e., 1) that Boyd had advised her not to transfer the 401(k) funds; 2) that Boyd advised her to file false affidavits; and 3) that Boyd advised her to hide the existence of the 401(k) funds from the court.

The elements of equitable estoppel include:

(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.

Gray v. Jackson Purchase Prod. Credit Ass’n, 691 S.W.2d 904, 906 (Ky. App. 1985). The facts of this case fall squarely within this definition of equitable estoppel.

Additionally, Dr. Benton has not proven that she suffered damages attributable to Boyd’s alleged negligence. The damages that Dr. Benton claims that she incurred are all related to her incarceration. It is clear from the record that Dr. Benton was solely responsible for receiving the 30-day sentence. The court gave her many opportunities to pay her obligations but she continually refused to comply. Boyd testified that she repeatedly advised Dr. Benton to pay some amount – even if she could not afford the entire obligation.2 The court also encouraged Dr. Benton to pay some amount. It even stated that her lack of attempting to cooperate was one reason that it found Dr. Benton to be in contempt of court. Once jailed, she soon managed to secure enough money to pay Scott a significant portion of her obligation in order to secure her release.

Dr. Benton has not established the elements of legal malpractice. Therefore, we affirm the summary judgment and order of dismissal entered by the Fayette Circuit Court.

570.  TRIAL.  QUESTIONS FROM JUROR DURING DELIBERATIONS.
SHELTON (DARREL WAYNE)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
DIXON (CONCURS) AND NICKELL (CONCURS)
2011-CA-000282-MR
TO BE PUBLISHED
MCCRACKEN

KELLER, JUDGE: Darrel Wayne Shelton appeals from a judgment of the McCracken Circuit Court, convicting him of first-degree assault. He argues that the trial court abused its discretion in answering a question posed by the jury during its deliberations. Having reviewed the record, we affirm.

STANDARD OF REVIEW
Under Kentucky Rules of Criminal Procedure (RCr) 9.54(1), the trial

court has the duty “to instruct the jury in writing on the law of the case, which instructions shall be read to the jury prior to the closing summations of counsel.” After the jury has retired for deliberations, “[n]o information requested by the jury or any juror . . . shall be given except in open court in the presence of the defendant (unless the defendant is being tried in absentia) and the entire jury, and in the presence of or after reasonable notice to counsel for the parties.” RCr 9.74.

Furthermore, “[i]n the absence of something prejudicial in his remarks, the act of a trial judge in explaining or elaborating on the written instructions given to the jury does not warrant a reversal.” Young v. Commonwealth, 421 S.W.2d 857, 859 (Ky. 1967) (citations omitted). A trial court is permitted only to clarify a point of law, not to comment on the facts. Muncy v. Commonwealth, 132 S.W.3d 845, 848 (Ky. 2004); Thompson v. Walker, 565 S.W.2d 172, 174 (Ky.App. 1978) (The trial court has the discretion “to comment on the law when the jury so requests.”)

Shelton did not contemporaneously object to the actual content of the trial court’s remarks and its interpretation of the law; he objected only to providing any clarification of the instructions to the jury. “It goes without saying that errors to be considered for appellate review must be precisely preserved and identified in the lower court.” Skaggs v. Assad, 712 S.W.2d 947, 950 (Ky. 1986). Thus, to the extent that his arguments relate to the content of the trial court’s remarks, they will be reviewed pursuant to RCr 10.26 for palpable error. Shelton suggests that by omitting the word “solely” from its explanation, the trial court implied that Shelton’s alleged psychosis, triggered by Feezor’s resemblance to his abusive father, was similarly not a defense to wanton conduct. We disagree. A complete and correct instruction on extreme emotional disturbance was given to the jury; had the jury believed that Shelton was acting under the effect of such a psychosis, it could have found accordingly. There was nothing in the trial court’s remarks to suggest that the alleged psychosis was not a defense to wanton conduct.

CONCLUSION
For the foregoing reasons, we affirm the final judgment of the McCracken Circuit Court.

572. FAMILY LAW.  PRENUPTIAL AGREEMENTS.
GOSHORN (RICHARD)
VS.
WILSON (DONNA), ET AL.
OPINION AFFIRMING IN PART, REVERSING IN PART AND REMANDING
VANMETER (PRESIDING JUDGE)
COMBS (CONCURS) AND DIXON (CONCURS)
2011-CA-000574-MR
TO BE PUBLISHED
CAMPBELL

VANMETER, JUDGE: Richard Goshorn appeals from the Campbell Circuit Court’s findings of facts, conclusions of law, and judgment entered February 24, 2011, holding the parties’ prenuptial agreement valid and enforceable and extinguishing any interest Richard may have had in his deceased wife’s residence. Richard contends the prenuptial agreement is invalid and that the court erred by invalidating his life estate in the marital residence. Reviewing the record below, we affirm in part, reverse in part, and remand for further proceedings.

573.  JURISDICTION OVER THE PERSON. LONG ARM STATUTE. CIVIL ACTION. TORT.
ALLEN (JORDAN R.)
VS.
JONES (HENRY)
OPINION AFFIRMING
DIXON (PRESIDING JUDGE)
KELLER (CONCURS) AND NICKELL (CONCURS)
2011-CA-000576-MR
TO BE PUBLISHED
LOGAN

DIXON, JUDGE: Appellant, Jordan Allen, appeals from an order of the Logan Circuit Court granting Appellee, Henry Jones’s, motion to dismiss based on lack of personal jurisdiction. Finding no error, we affirm.

On July 22, 2009, Allen filed a personal injury action against Wood in the Logan Circuit Court. On October 28, 2009, Allen moved for leave to file an amended complaint1 to add Jones as a party defendant on the grounds that at the time of the accident, Jones was still the owner of the pick-up truck and had negligently entrusted such to Wood. Jones thereafter responded with a Kentucky Rules of Civil Procedure (CR) 12.02 motion to dismiss for lack of personal jurisdiction. Jones contended that there were no facts or circumstances surrounding the sale of his truck to indicate that he purposefully availed himself of the privilege of acting in Kentucky or that he purposefully caused a consequence in Kentucky. On February 28, 2011, the trial court granted Jones’s motion and dismissed all claims against him. This appeal ensued.

On appeal, Allen contends that the trial court erred in finding that it did not have personal jurisdiction over Jones. Allen’s position hinges upon his belief that Jones did not relinquish ownership of the truck when he sold same to Wood because his actions did not sufficiently transfer title under Tennessee or Kentucky law. Further, Allen makes a public policy argument that a seller of a vehicle, presumably a resident or nonresident, has an obligation to ensure that buyers have liability insurance. We disagree.

Jones, as a Tennessee resident transacting a sale in Tennessee of a vehicle registered in Tennessee, was required to follow Tennessee law intransferring the title of the vehicle. Tenn. Code Ann § 55-3-118, which governs the transfer of a title to a motor vehicle, provides:

(a) In order to transfer titling to any motor vehicle coming within the provisions of chapters 1, 2, this chapter and chapters 4-6 of this title, the owner shall endorse an assignment and warranty of title upon the certificate of title, if in such owner’s possession, for such vehicle, with a statement of all liens or encumbrances, and the owner shall deliver the certificate of title to the purchaser or transferee at the time of delivering the vehicle . . . .

As stated in Jones’s affidavit, at the time Wood purchased the truck, Jones endorsed an assignment and warranty of title on the certificate of title and delivered same to Wood. Significantly, Wood paid the full purchase price and took possession of the truck free of any liens or encumbrances.

We are of the opinion that Jones fully complied with the requirements of Tennessee law in transferring the vehicle to Wood on September 26, 2008. Furthermore, it is clear from the record that Jones did not transact business in Kentucky, did not contract to supply goods or services in Kentucky, and did not cause tortious injury by an act or omission in Kentucky. Without question there is no evidence to support a theory that Jones acted in any manner which would subject him to the jurisdiction of a Kentucky Court.

578.  STATUTE OF LIMITATIONS.  AMENDED COMPLAINT. FILING MOTION COMPLIED WITH “COMMENCEMENT” OF ACTION UNDER UIM POLICY.
HILL (TANDY)
VS.
STATE FARM INSURANCE COMPANY, ET AL.
OPINION REVERSING AND REMANDING
VANMETER (PRESIDING JUDGE)
COMBS (CONCURS) AND DIXON (CONCURS)
2011-CA-001400-MR
TO BE PUBLISHED
BOONE

VANMETER, JUDGE: Tandy Hill appeals from an order of the Boone Circuit Court granting summary judgment in favor of State Farm Insurance Company (State Farm). The trial court dismissed Hill’s claims against State Farm as barred by the applicable two-year contractual limitations period provided in State Farm’s contract with Hill. The issue before this court is whether the trial court erred by holding as a matter of law that Hill’s complaint was filed outside the contractual limitations period because, although Hill delivered the motion to amend her original complaint to the Boone Circuit Court Clerk within the applicable two years, a hearing on the motion was not granted and the summons was not issued until after the limitations period had expired. We hold that summary judgment was not proper in this instance, and therefore reverse the decision of the trial court and remand the case for further proceedings.

State Farm argues that for purposes of the contract, Hill’s complaint was not commenced until the trial court granted her motion and issued the summons. However, Hill’s motion for leave to amend was filed four days before the limitations period expired, even though the motion was not heard or granted until after the period had run. Hill had no control over when the trial court’s schedule would permit her motion to be heard. Since amended complaints that add new parties are procedurally different from original complaints in requiring leave of the court, a strict application of the definition of “commence” would be prejudicial to Hill. Thus, we hold that filing the motion for leave to amend and attaching the amended complaint adding State Farm as a party, given that the trial court subsequently granted the motion, was sufficient to commence the action for purposes of the limitations period in State Farm’s contract.

Moreover, the linchpin in determining when a party would be prejudiced if required to defend a case on its merits is notice, which State Farm received before the period expired. Nolph v. Scott, 725 S.W.2d 860, 862 (Ky. 1987) (citing Schiavone v. Fortune, 477 U.S. 21, 31, 106 S.Ct. 2379, 2385, 91 L.Ed.2d 18 (1986)). The record indicates that counsel for State Farm was served by mail with Hill’s motion for leave to amend her complaint and an attached copy of the amended complaint on September 18, 2009, three days before the motion was filed with the clerk and a week before the contractual limitations period expired. As a result, we find that State Farm was put on notice of the pending action and would not be prejudiced in having to defend the case on its merits.

We further note that while limitations periods and promptness in filing are critical aspects of the judicial system, to bar Hill’s claims for reasons beyond her control after she exercised due diligence would be unfair. See Nanny v. Smith, 260 S.W.3d 815, 818 (Ky. 2008) (“under the unique facts presented here, we are simply deeming done what should have been done per CR 4.01 by recognizing an equitable tolling of the statute of limitations.”); Robertson v. Commonwealth, 177 S.W.3d 789 (Ky. 2005) (holding that equitable tolling is appropriate in circumstances that are beyond the party’s control when the party has exercised due diligence and is clearly prejudiced). But see Steadman v. Gentry, 314 S.W.3d 760 (Ky.App. 2010) (holding that the statute of limitations period should not be tolled when defendant’s motion to amend was granted four months before limitations period expired but defendant waited seven months after period expired to ensure summons was issued).

Here, Hill exercised due diligence and cannot be expected to foresee exactly when her motion for leave to amend would be heard. Thus, we hold that filing a timely motion for leave to amend and attaching an amended complaint while also providing notice to the defending party is sufficient to timely commence the action against State Farm. For the foregoing reasons, the Boone Circuit Court’s grant of summary judgment to State Farm is reversed and the case is remanded to the trial court for further proceedings consistent with this opinion.

580.  FAMILY LAW. GRANDMOTHER DE FACTO CUSTODIAN.
S. (S.)
VS.
COMMONWEALT OF KENTUCKY CABINET FOR HEALTH AND FAMILY SERVICES, ET AL.
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
COMBS (CONCURS) AND STUMBO (CONCURS)
2011-CA-001790-ME
TO BE PUBLISHED
JEFFERSON

LAMBERT, SENIOR JUDGE: S.S., by and through her court-appointed guardian ad litem (“GAL”), appeals to this Court from an order of the Jefferson Family Court which concluded that her Great-Grandmother had standing to intervene in the suit as a de facto custodian. On appeal, S.S. argues that her Great- Grandmother does not meet the requirements for de facto custodian status under KRS 403.270.

581.  FAMILY LAW.  CUSTODY.
RICE (JENNIFER)
VS.
RICE (WILLARD)
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
COMBS (CONCURS) AND DIXON (CONCURS)
2011-CA-002162-ME
TO BE PUBLISHED
BRACKEN

VANMETER, JUDGE: Jennifer Rice appeals from the October 27, 2011, order of the Bracken Circuit Court which denied her motion to alter, amend or vacate its order adopting the report of the Domestic Relations Commissioner (DRC) which designated her former husband, Willard Rice, primary residential custodian of the couple’s three minor children during the school year. Jennifer contends that the trial court abused its discretion by refusing to grant her physical custody of the children and that the trial court’s order naming Willard primary custodian of the children during the school year is palpable error and should be reversed. We disagree and affirm the trial court’s order.
TORT REPORT  FOR PUBLISHED/NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

IF YOU WANT

PUBLISHED:

  • See,  Benton v. Boyd and Boyd, above, for legal malpractice claim.
  • See,  Shelton v. Commonwealth, above, for juror’s question re instructions during deliberations.
  • See,  Allen v. Jones, above re long arm statute and jurisdiction over Tenn. auto sale or Tenn. auto with susequent MVA in Ky.  Court held no personal jurisdiction over seller when vehicle turns out to be uninsured at time of mva.
  • See,  Hill v. State Farm, above, re UIM statute of limitations and filing of motion to amend complaint to add State Farm before two year period was considered timely upon filing rather than at hearing (after 2 year period).

 

NOT PUBLISHED:

563.  WORKERS COMP.  WAIVER OF EMPLOYEES.
THE TRAVELERS INSURANCE CO.
VS.
BLACKSTONE MINING COMPANY, INC.
OPINION REVERSING AND REMANDING
TAYLOR (PRESIDING JUDGE)
CLAYTON (CONCURS) AND KELLER (CONCURS)
2007-CA-001610-MR
NOT TO BE PUBLISHED
PIKE

TAYLOR, JUDGE: This case is again before us after the Kentucky Supreme Court, in Blackstone Mining Company v. Travelers Insurance Company, 351 S.W.3d 193 (Ky. 2010), reversed and remanded the Court of Appeal’s Opinion in Appeal No. 2007-CA-001610-MR rendered on October 17, 2008. The Supreme Court reinstated the circuit court’s summary judgment in favor of Blackstone Mining upon the limited issue of the validity of twenty-three miners’ written waivers of coverage under the Workers’ Compensation Act of this Commonwealth. The Supreme Court also remanded this case to the Court of Appeals with specific instructions to decide two remaining issues – “prejudgment interest and black lung.”2

We now fulfill the Supreme Court’s mandate and address these two remaining issues. A recitation of the underlying facts is unnecessary as the facts have been fully set forth by the Supreme Court in Blackstone Mining, 351 S.W.3d 193, which we incorporate here by reference. We begin by addressing Travelers’ argument surrounding the “black lung” issue and then address its second argument surrounding the “prejudgment interest” issue. Our review proceeds accordingly.