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PUBLISHED DECISIONS OF COA:

448.  FORCIBLE DETAINER AND PETROLEUM MARKETING PRACTICES ACT.
ZAD, LLC
VS.
BULK PETROLEUM CORP
OPINION REVERSING
ACREE (PRESIDING JUDGE)
STUMBO (CONCURS) AND LAMBERT (DISSENTS AND FILES SEPARATE OPINION)
2010-CA-000023-DG
TO BE PUBLISHED
JEFFERSON

ACREE, JUDGE: The issue before us is whether the district court properly entered a judgment of forcible detainer against Zad, LLC, thereby ordering Zad to vacate a gas station and convenience store which it had leased from Bulk Petroleum Corp. More specifically, Zad claims Title I of the Petroleum Marketing Practices Act (PMPA), 15 USC §§ 2801-2806, preempts state forcible detainer statutes, at least as applied to petroleum franchise agreements, and it was therefore improper for the district court to evict Zad under state law.2 We agree with Zad and reverse the district court’s order.

450.  CRIMINAL PROCEDURE.  SENTENCING.
SCHAFFELD (SHANE)
VS.
COMMONWEALTH OF KENTUCKY, ET AL.
OPINION REVERSING AND REMANDING
NICKELL (PRESIDING JUDGE)
CAPERTON (CONCURS) AND COMBS (CONCURS AND FILES SEPARATE OPINION)
2010-CA-001301-MR
TO BE PUBLISHED
KENTON

NICKELL, JUDGE: Shane Schaffeld appeals from an oral order entered on June 9, 2010, and a written order entered on June 28, 2010, both of which partially revoked a conditionally discharged sentence for failure to pay court-ordered child support. Following a hearing at which Shane testified, the court found Shane had violated the terms of conditional discharge by failing to remain current in his child support obligation and ordered him to serve one-third of a 180-day sentence under house arrest. When asked to set a purge amount at a hearing nearly a month later, the court denied the request, ruling Shane was not entitled to a purge amount. Although originally found guilty of contempt for nonpayment of child support, the court reasoned the matter was no longer a contempt case but now concerned revocation of a conditionally discharged sentence. On appeal, Shane argues the court erred in failing to set a purge amount prior to placing him on home incarceration. For reasons explained below, unrelated to the purge amount issue, we reverse and remand for specific findings in light of Commonwealth v. Marshall, 345 S.W.3d 822 (Ky. 2011).

453.  FAMILY LAW.  CUSTODY.
L. (N.)
VS.
F. (W.) CABINET FOR HEALTH AND FAMILY SERVICES, ET AL.
OPINION REVERSING AND REMANDING
LAMBERT (PRESIDING JUDGE)
TAYLOR (CONCURS) AND DIXON (CONCURS)
2010-CA-001787-ME
2010-CA-001815-ME
2011-CA-000091-ME
2011-CA-000095-ME
TO BE PUBLISHED
GREENUP

LAMBERT, JUDGE: These four consolidated appeals arise from a juvenile action in which the Greenup Family Court found N.L. neglected her two children and subsequently awarded permanent custody to their respective fathers. Having carefully considered the record from the proceedings below and the parties’ arguments on appeal, we hold that the family court erred in awarding custody to the fathers. Therefore, we reverse the orders on appeal.

455.  BUSINESS LAW.  DEBT COLLECTION.
WILLIAMS (BRIAN)
VS.
CHASE BANK USA, N.A.
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
MOORE (CONCURS) AND THOMPSON (CONCURS)
2010-CA-002034-MR
TO BE PUBLISHED
JEFFERSON

NICKELL, JUDGE: Brian Williams appeals from a Jefferson Circuit Court opinion and order granting summary judgment to Chase Bank USA, N.A., on its debt collection action and Williams’s counterclaim.

459.  CIVIL PROCEDURE. SUMMARY JUDGMENT. GENUINE ISSUE OF MATERIAL FACT.  RELEASE AND CONSDIRATION AND SURRENDER OF RIGHT TO PROSECUTE ACTION.
GRASS (MICHAEL), ET AL.
VS.
AKINS (ROBERT)
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
KELLER (CONCURS) AND STUMBO (CONCURS)
2010-CA-002265-MR
TO BE PUBLISHED
JEFFERSON

VANMETER, JUDGE: Michael and Shawn Grass appeal from a Jefferson Circuit Court order granting Robert Akins’ motion for summary judgment. For the following reasons, we affirm the order.

The Grasses argue that summary judgment is inappropriate based upon their claims that the following genuine issues of material fact exist: (1) whether the original agreement provided that Akins would be reimbursed as Grass received payment from Price; and (2) whether the release was supported by valid consideration. We conclude that neither issue constitutes a genuine issue of material fact in this case.

First, the Grasses claim that a dispute regarding the terms of payment in the original agreement constitutes a genuine issue of material fact. They contend that “[t]he overriding question in this matter is [the] parties’ original intent at the time the Funding Agreement was consummated.” However, Akins’ complaint alleged that Grass breached his contractual obligation under the release, rather than the original contract.

“[A] release is a discharge of a claim or obligation and surrender of a claimant’s right to prosecute a cause of action.” Frear v. P.T.A. Indus., Inc., 103 S.W.3d 99, 107 (Ky. 2003) (quoting 66 Am. Jur. 2d Release §1 (2001)). Releases from liability and other settlement agreements are governed under contract law. Frear at 105. Under contract law, a written instrument will be strictly enforced according to its terms absent ambiguity. New Life Cleaners v. Tuttle, 292 S.W.3d 318, 322 (Ky.App. 2009).

[W]hen parties reduce their agreement to a clear, unambiguous, and duly executed writing, all prior negotiations, understandings, and agreements merge into the instrument, and a contract as written cannot be modified or changed by prior parol evidence, except in certain circumstances such as fraud or mistake.

Id. (citing Childers and Venters, Inc. v. Sowards, 460 S.W.2d 343, 345 (Ky. 1970)). The written agreement is presumed to be final and complete, with all prior negotiations abandoned or incorporated into the final document. New Life Cleaners, 292 S.W.3d at 322. The Grasses do not allege fraud, mistake, or ambiguity. Therefore, the terms of the original agreement and its intent are irrelevant to Akins’ claim that the Grasses breached the terms of the release.

“Not every issue of fact or conflicting inference presents a genuine issue of material fact that requires denial of a summary judgment motion.” Steelvest, 807 S.W.2d at 481 (citation omitted). At most, the terms and intent behind the original contract are only relevant as a matter of factual background. The original agreement has no bearing on the interpretation or construction of the release. We conclude that the parties’ dispute regarding the terms of the original agreement does not constitute a genuine issue of material fact. Therefore, we find no error in the trial court’s order of summary judgment.

Second, the Grasses claim that a genuine issue of material fact exists concerning whether the release was based upon valid consideration. Consideration for a contract may be a benefit to the promisor, or a detriment to the promissee. Van Winkle v. King, 145 Ky. 691, 693, 141 S.W. 46, 47 (1911). The Grasses claim that they did not receive a benefit by signing the release based upon the dispute concerning the terms of the original contract. However, it is undisputed that the release provided a specific payment plan and more definite terms. By signing the release, the Grasses had an additional opportunity to meet their obligation and make payments over time. In their reply brief, the Grasses stated that they signed the release because they “no longer liked the terms of the [agreement] as originally constituted.” The Grasses were clearly more comfortable with the finite terms contained in the release and received a benefit from their specificity. We conclude that the terms of the release support the trial court’s order of summary judgment.

As previously mentioned, the construction and interpretation of contracts are questions of law to be decided by the trial court. First Commonwealth Bank of Prestonsburg v. West, 55 S.W.3d 829, 835 (Ky.App. 2000) (citation omitted). Thus, it follows that the lack of consideration is a legal question for the court’s determination rather than an issue of material fact best suited for a fact-finding tribunal.

Accordingly, the Jefferson Circuit Court order granting summary judgment in favor of Akins is affirmed.

462. CRIMINAL LAW.
COMMONWEALTH OF KENTUCKY
VS.
WHITCOMB (TARA LYNN)
OPINION REVERSING AND REMANDING
CAPERTON (PRESIDING JUDGE)
TAYLOR (CONCURS) AND ACREE (CONCURS)
2011-CA-000346-MR
TO BE PUBLISHED
FAYETTE

CAPERTON, JUDGE: The Commonwealth appeals from the Fayette Circuit Court’s order dismissing the charge of probation violation against Tara Lynn Whitcomb for lack of jurisdiction due to her probationary period expiring. After a thorough review of the parties’ arguments, the record, and the applicable law, we conclude that the trial court did have jurisdiction and, accordingly, reverse and remand this matter for further proceedings.

470. CRIMINAL LAW
COMMONWEALTH OF KENTUCKY
VS.
WRIGHT (LEE ANDREW)
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
COMBS (CONCURS) AND LAMBERT (CONCURS)
2011-CA-000996-MR
TO BE PUBLISHED
JEFFERSON

STUMBO, JUDGE: The Commonwealth of Kentucky appeals from an Order of the Jefferson Circuit Court ruling that the court lacked jurisdiction to hear the Commonwealth’s motion to revoke Lee Andrew Wright’s probation. The Commonwealth argues that because Wright still owed restitution after the expiration of the court-ordered probationary period, KRS 533.020(4) and other statutes allow the probationary period to be extended beyond the statutory five- year term. Though we agree that KRS 533.020(4) allows felony probation to last the longer of either five years or the period required to make restitution, we cannot conclude that the circuit court erred in declining to consider whether Wright’s probation should be revoked. Accordingly, we affirm the Order on appeal.

472.  REAL PROPERTY.  SUBDIVISION RESTRICTIONS.
WEST VALE HOMEOWNER’S ASSOCIATION, INC.
VS.
SMALL (ERIC)
OPINION REVERSING AND REMANDING
CAPERTON (PRESIDING JUDGE)
COMBS (CONCURS) AND LAMBERT (CONCURS)
2011-CA-001157-MR
TO BE PUBLISHED
MCCRACKEN

CAPERTON, JUDGE: The Appellant, West Vale Homeowners’ Association, Inc., initiated litigation below for the purpose of enforcing subdivision restrictions against the Appellee, Eric Small. The trial court initially found Small to be in violation of the restrictions, and enjoined him from further action. However, following a motion to alter, amend, or vacate filed by Small, the trial court reversed its decision, finding that the actions by Small, subsequent to its initial ruling, waived its ability to enforce the restrictions. West Vale now seeks restoration of the trial court’s original ruling and continuation of the permanent injunction against Small. Upon review of the record, the arguments of the parties, and the applicable law, we reverse and remand this matter for additional proceedings consistent with this opinion.

Prior to reviewing the arguments of the parties, we note that the interpretation and construction of restrictive covenants is a question of law. Therefore, we review this matter de novo. See Colliver v. Stonewall Equestrian Estates Association, Inc., 139 S.W.3d 521, 525 (Ky.App. 2003). Actions under CR 60.02, however, are taken under the sound discretion of the trial court, and we will not disturb those decisions absent an abuse of discretion. Richardson v. Brunner, 327 S.W.2d 572, 574 (1959). Ultimately, having reviewed the arguments of the parties and the record below, we believe that resolution of this matter turns on the trial court’s use of CR 60.02 in reopening the judgment below to consider evidence of conduct which occurred after entry of the opinion, and for the reasons set forth herein infra, we are compelled to reverse.

TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

IF YOU WANT

PUBLISHED:

SEE, above –Grass v. Akins re: CIVIL PROCEDURE. SUMMARY JUDGMENT. GENUINE ISSUE OF MATERIAL FACT.  RELEASE AND CONSDIRATION AND SURRENDER OF RIGHT TO PROSECUTE ACTION.

NOT PUBLISHED:

449. GARNISHMENTS IN FEN-PHEN LAWYERS CASE.
ABBOTT (MILDRED)
VS.
CUNNINGHAM (SHIRLEY A.), ET AL.
OPINION AFFIRMING IN PART AND REMANDING IN PART
CLAYTON (PRESIDING JUDGE)
STUMBO (CONCURS) AND THOMPSON (CONCURS AND FILES SEPARATE OPINION)
2010-CA-000147-MR
NOT TO BE PUBLISHED
BOONE

CLAYTON, JUDGE: This is an appeal from interlocutory orders of the Boone Circuit Court. For the foregoing reasons, we affirm in part, reverse in part and remand this action to the trial court for further findings consistent with this opinion.

After examining the fee agreements entered into between the

Attorneys and the Judgment Debtors at issue herein, the trial court found there -7-

were no remaining monies which could be attached until after representation by the Attorneys had come to a conclusion. The trial court also reserved the right to examine the fees of Davidson, Almand, Dobson and Lotz for “reasonableness” after the Criminal Case was over.

We conclude that a “flat fee,” such as the ones accepted in the Criminal Case herein, are earned immediately by the attorney due to the inherent risk the attorney takes by accepting the fee and representation of the client regardless of the time and effort which could be involved. There is no indication in this action that the Attorneys did not continue to represent the Judgment Debtors. However, nonrefundable fees must be reasonable. The trial court acknowledged this fact and reserved the issue until after the conclusion of the Criminal Case.

As set forth above, the trial court reserved to make a finding on the issue of the reasonableness of the fees until after the Criminal Case was finished. We must, therefore, remand this action to the trial court for a finding on this issue. An exception exists, however, to the law firms of Cors & Bassett, Fulkerson & Kinkel, and Regard. As stated previously these firms had no remaining fees which would be attached. Thus, we affirm the trial court’s decision as to them. As to Meade- McKenzie, there is no indication from the record that the trial court made specific findings as to the alleged sham transaction by Tandy, LLC to her. She had also not made an appearance at the appellate level. Consequently, upon remand, the court will make specific findings regarding her fees.

452.  DEFENSES. SUDDEN EMERGENCY DOCTRINE.
MAGGARD (LORETTA), ET AL.
VS.
PORTWOOD (KENNETH W.), ET AL.
OPINION AND ORDER AFFIRMING AND DENYING MOTION TO STRIKE BRIEF AND DISMISS APPEAL
MOORE (PRESIDING JUDGE)
LAMBERT (CONCURS) AND COMBS (CONCURS IN RESULT ONLY)
2010-CA-001591-MR
NOT TO BE PUBLISHED
BOYLE

MOORE, JUDGE: Loretta Maggard2 and Henry Maggard appeal the judgment of the Boyle Circuit Court after the jury returned a defense verdict for Kenneth W. Portwood3 in an automobile accident case. The jury determined that Portwood had not breached any duty when operating his motor vehicle and thus was not liable for the damages Maggard sustained in the parties’ automobile collision. On appeal Maggard argues that the trial court committed error by giving a sudden emergency instruction. Finding no error, we affirm.

A sudden emergency can be defined as “when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation, or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor is not negligent if the actions taken are reasonable and prudent in the emergency context, provided the actor has not created the emergency.”
Henson v. Klein, 319 S.W.3d 413, 418 (Ky.2010) (quoting 57 Am. Jur. 2d Negligence §198 (2004)).

A sudden emergency instruction is proper where a party had no reason to anticipate a particular condition, did not cause or bring about the condition, took some sort of action in response to the condition, and the condition “alter[ed] the duties [the party] would otherwise have been bound to observe.” Id. at 419 (citing Regenstreif v. Phelps, 142 S.W.3d 1, 4 (Ky.2004) (italics omitted)); Robinson v. Lansford, 222 S.W.3d 242, 245-47 (Ky.App.2006).

Thus, the dispositive question when determining whether a sudden emergency instruction is warranted is not whether the circumstance constituted a sudden occurrence or a sudden emergency, but rather “‘whether [the circumstance] changes or modifies the duties that would have been incumbent upon him in the absence of that circumstance.’” Henson, 319 S.W.3d at 420 (quoting Harris v. Thompson, 497 S.W.2d 422, 428 (Ky.1973)). Furthermore, “[t]he presence of the emergency does not excuse the breach of a specific duty; under appropriate circumstances, it can eliminate the duty so that the conduct (crossing to the wrong side of the road) is not a breach at all.” Id. at 421. Thus, it becomes necessary to instruct the jury that the party’s duty has been modified. Id.

Under the facts outlined above, the trial court did not commit manifest error by concluding that a sudden emergency instruction was warranted. There was sufficient evidence presented that Portwood was forced to respond quickly to another vehicle entering into his lane. Thus, the sudden emergency instruction was necessary to inform the jury that Portwood’s duties were modified if they found his account of the facts to be credible. Once the instruction was given, it was up to the jury to make credibility determinations with respect to each party’s and witness’s testimony and to determine whether Portwood was in fact confronted with a sudden emergency. McAlpin v. Davis Construction, Inc., 332 S.W.3d 741, 743-44 (Ky.App.2011). There is no reason for us to disturb the jury’s determination regarding the facts of this matter.

468. CIVIL. DEFENSES (RES JUDICATA; ISSUE PRECLUSION)
WARD REALTY, LLC
VS.
ROY STOESS ESTATE, LLC, ET AL.
OPINION AFFIRMING
TAYLOR (PRESIDING JUDGE)
ACREE (CONCURS) AND CAPERTON (CONCURS)
2011-CA-000811-MR
NOT TO BE PUBLISHED
JEFFERSON

TAYLOR, CHIEF JUDGE: Ward Realty, LLC, brings this appeal from an August 18, 2008, order dismissing Ward Realty’s complaint against Scott W. Brinkman and Stoll Keenon Ogden, PLLC, (Stoll Keenon) and a January 25, 2011, order of the Jefferson Circuit Court dismissing Ward Realty’s complaint against Roy Stoess Estate, LLC (Stoess). We affirm.

This appeal arises from the sale of property owned by Stoess located at 3700 Commerce Parkway in Oldham County, Kentucky (hereinafter referred to as the Commerce Parkway property). In 2004, Stoess entered into a contract for the sale of the property (purchase contract) with Jordon River, Inc. The purchase contract provided that Stoess would pay 3 percent of the purchase price in commission to Ward Realty, as agent for the buyer, Jordon River. Paul Grisanti and Herbert Head (collectively referred to as Grisanti/Head) were real estate agents for Ward Realty and represented Jordon River. Jordon River subsequently assigned its rights under the purchase contract to Greater Buckner Investment Co., Inc. (Buckner) and 393 Investment Properties, LLC (393).

DEFENSES:  RES JUDICATA ISSUE PRECLUSION

It is well settled that the doctrine of res judicata serves as a bar to repetitious lawsuits involving the same cause of action. Yeoman v. Com., Health Policy Bd., 983 S.W.2d 459 (Ky. 1998); Coomer v. CSX Transportation, Inc., 319 S.W.3d 366 (Ky. 2010). Res judicata is composed of two subparts – claim preclusion and issue preclusion. Yeoman, 983 S.W.2d 459; Coomer, 319 S.W.3d 366. In this appeal, we are concerned with the doctrine of issue preclusion. Issue preclusion, also known as collateral estoppel, generally operates to bar issues that were litigated in a previous action from being relitigated in a second action. Yeoman, 983 S.W.2d 459. The following elements are necessary for issue preclusion to operate as a bar in subsequent litigation:

First, the issue in the second case must be the same as the issue in the first case. Restatement (Second) of Judgments § 27 (1982). Second, the issue must have been actually litigated[.] Id. Third, even if an issue was actually litigated in a prior action, issue preclusion will not bar subsequent litigation unless the issue was actually decided in that action. Id. Fourth, for issue preclusion to operate as a bar, the decision on the issue in the prior action must have been necessary to the court’s judgment. Id.

Yoeman, 983 S.W.2d at 465.

However, the issue of lawful entitlement to the commission between Ward Realty and Grisanti/Head was previously decided in Action No. 06-CI- 008102. And, considering the elements outlined in Yoeman, we believe that the doctrine of issue preclusion bars relitigation of this issue in the underlying action. See Yoeman, 983 S.W.2d 459. As concluded by the circuit court in Action No. 06- CI-008012, Ward Realty possesses no lawful claim to a greater portion of the commission than previously received. Consequently, in this action, Ward Realty’s claims against appellees must fail as it has received its proper commission as adjudicated in Action No. 06-CI-008012 and, thus, has suffered no cognizable damage by appellees failure to directly pay the commission to Ward Realty.

For the foregoing reasons, the order of the Jefferson Circuit Court is affirmed.