Kentucky Court of Appeals Decisions (Minutes) for December 20, 2013 (Nos. 1118-1134)

In the case sub judice, appellant was represented by counsel during the entire proceeding below. Shortly after the November 13, 2007, default judgment was entered, appellee agreed with appellant’s request to set aside the judgment. Thereafter, appellee waited until 2009 to file a motion for summary judgment upon the basis that appellant had not responded to discovery requests propounded years earlier in the litigation. Appellant then made his first request for appointment of a GAL on December 24, 2009, in response to the initial motion for summary judgment. When retained counsel informed the court that appellant was incarcerated in federal prison, the court honored counsel’s request for appointment of a GAL. Even though a GAL was appointed, the GAL failed to defend the action or file a report. Under the rule, the GAL was not required to take any action, given that appellant at all times was represented by counsel in the litigation. Appellee did not renew its motion for summary judgment until appellant was reportedly released from prison in August of 2011. Considering that appellant was represented by retained counsel throughout this entire proceeding and given the otherwise unique circumstances surrounding the appointment of the GAL, we do not believe appellant was entitled to the protections afforded under CR 17.04.

Viewing the evidence in a light most favorable to Searcy, there is a factual dispute regarding whether the sidewalk incline was an unreasonably dangerous condition because it was essentially “hidden” in the darkness and caused Searcy to fall. See id. Because disputed issues of fact exist, summary judgment was improper.