November 11, 2011 COA Minutes — Nos. 1044-1060 (17 decisions; 6 published)

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PUBLISHED DECISIONS OF COA:

 1045.  ATTORNEY FEES.  CONTRACT VS. QUANTUM MERUIT UPON VOLUNTARY WITHDRAWING.
BRADLEY (SAM), ET AL.
VS.
ESTATE OF HERMAN LESTER
OPINION VACATING AND REMANDING
ACREE (PRESIDING JUDGE)
DIXON (CONCURS) AND LAMBERT (CONCURS)
2009-CA-002157-MR
TO BE PUBLISHED
FLOYD

ACREE, JUDGE: Appellants appeal the Floyd Circuit Court’s order awarding attorney fees to the Appellee, the Estate of Herman Lester. Specifically, the question presented is whether an attorney who withdraws from representation is entitled to recover his fee pursuant to the original contingency fee agreement, or limited to recovery on a quantum meruit basis. Upon the facts before us, we find quantum meruit is the proper calculation of fees. Therefore, we vacate the order of the Floyd Circuit Court and remand for additional proceedings.

1047.  CRIMINAL LAW. DISMISSAL AND SEX OFFENDER REGISTRATION.
PHILLIPS (GEORGE)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
TAYLOR (CONCURS) AND THOMPSON (CONCURS)
2010-CA-000969-MR
TO BE PUBLISHED
BARREN

LAMBERT, JUDGE: After entering a conditional guilty plea, George Phillips appeals from the Barren Circuit Court’s denial of his motion to dismiss the charges pending against him for failure to comply with sex offender registration and persistent felony offender in the first degree. After careful review, we affirm the trial court’s order denying Phillips’ motion to dismiss the charges.

1049.  CRIMINAL PROCEDURE. SEARCH & SEIZURER. TERRY STOP.
AGEE (DEBORAH L.)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
WINE (PRESIDING JUDGE)
TAYLOR (CONCURS) AND CAPERTON (CONCURS)
2010-CA-001122-MR
TO BE PUBLISHED
MADISON

WINE, JUDGE: Deborah L. Agee appeals from her conditional guilty plea in the Madison Circuit Court following the trial court’s denial of her motion to suppress evidence seized following a stop by police. She argues that the police officers exceeded the scope of a reasonable Terry stop, and consequently the search of her backpack was not closely incident to her arrest. She further argues that the search of her backpack exceeded the scope of a valid search incident to arrest, and that the officers lacked probable cause for the arrest. Finding no error, we affirm.

1053. CRIMINAL. SENTENCE.
HENSLEY (SHERMAN)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
TAYLOR (CONCURS) AND DIXON (CONCURS)
2010-CA-001489-MR
TO BE PUBLISHED
CLINTON

LAMBERT, JUDGE: Sherman Hensley appeals from the July 19, 2010, order of the Clinton Circuit Court denying his motion to compel the Department of Corrections to recalculate his sentences of imprisonment. After careful review, we affirm the trial court’s order.

1054.  CIVIL PROCEDURE – DISMISSAL FOR LACK OF PROSECUTION. APPEAL PENDING.
INDIA RIDGE PROPERTIES, INC.;
AND CHARLES L. WALLER, JR.
VS.
SCHWARTZ, LLC NO. 1; DAVID W. NICKLIES; AND FULTZ MADDOX HOVIOUS & DICKENS PLC
OPINION AFFIRMING
TAYLOR (PRESIDING JUDGE)
ACREE (CONCURS) AND VANMETER (DISSENTS AND FILES SEPARATE OPINION)
2010-CA-001518-MR
TO BE PUBLISHED
JEFFERSON

TAYLOR, CHIEF JUDGE: Indian Ridge Properties, Inc., and Charles L. Waller, Jr. (collectively referred to as appellants) bring this appeal from a May 5, 2010, order and a July 15, 2011, amended order of the Jefferson Circuit Court dismissing their action pursuant to Kentucky Rules of Civil Procedure (CR) 41.02(1). We affirm.

Appellants contend that the circuit court erroneously dismissed the action under CR 41.02. Appellants raise three grounds for relief:
I.    The circuit court erred in not finding that the appeal in Division 5 was not concluded until that court denied the motion for judgment against the surety on the supersedeas bond.
II.    The court erred in finding that the defendants were prejudiced.
III.    Dismissal under CR 41.02 is not appropriate in a situation in which the parties agree to hold a case in abeyance.
Appellant’s Brief at iii. For the reasons hereinafter explained, we conclude that the circuit court did not err by dismissing this action pursuant to CR 41.02.

DISMISSAL FOR LACK OF PROSECUTION:

CR 41.02 provides, in part:
(1) For failure of the plaintiff to prosecute or to comply with these rules or any order of the court, a defendant may move for dismissal of an action or of any claim against him.
Pursuant to CR 41.02(1), a circuit court may dismiss an action for a party’s failure to prosecute same. When so doing, the circuit court must consider the totality of the circumstances and all relevant factors, including those factors specifically set forth in Ward v. Housman, 809 S.W.2d 717 (Ky. App. 1991). Jaroszewski v. Flege, 297 S.W.3d 24 (Ky. 2009). The Ward factors are:
1) the extent of the party's personal responsibility; 2) the history of dilatoriness;
3) whether the attorney's conduct was willful and in bad faith;
4) meritoriousness of the claim; 5) prejudice to the other party; and 6) alternative sanctions.
Ward, 809 S.W.2d at 719 (citation omitted). It must be emphasized that a decision to dismiss under CR 41.02(1) should be based upon the totality of the circumstances and not simply upon the Ward factors. Jaroszewski, 297 S.W.3d
circuit court and will not be disturbed absent a clear abuse of that discretion. Jaroszewski, 297 S.W.3d 24.

1055.  CRIMINAL. SENTENCING.  WRIT OF MANDAMUS.
MILLS (TERRY)
VS.
DEPARTMENT OF CORRECTIONS
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
DIXON (CONCURS) AND VANMETER (CONCURS)
2010-CA-001637-MR
TO BE PUBLISHED
LYON

LAMBERT, JUDGE: Terry Mills, proceeding pro se, appeals from a Lyon Circuit Court order dismissing his petition for declaration of rights.1[Mills filed a writ of mandamus in the Lyon Circuit Court rather than a petition for a declaration of rights. A writ of mandamus, however, is “an extraordinary remedy which compels the performance of a ministerial act or mandatory duty where there is a clear legal right or no adequate remedy at law.” County of Harlan v. Appalachian Reg’l Healthcare, Inc., 85 S.W.3d 607, 613 (Ky. 2002). The writ may only be granted in two circumstances: “(1) when the lower court is acting beyond its jurisdiction; and (2) when the lower court is acting or is about to act erroneously, and there is exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if petition is not granted.” Sowders v. Lewis, 241 S.W.3d 319, 321-22 (Ky. 2007). Given that Mills’ claims fall outside of the scope of a writ of mandamus, the circuit court treated Mills’ pro se filing as a petition for declaration of rights. Mills did not object. Therefore, we review his appeal as a denial of a petition for declaration of rights.]    Mills claims that the Department of Corrections erroneously classified him as violent offender, which resulted in an increased period of time that he must serve in prison before becoming eligible for parole. Following a careful review of the record and applicable case law, we affirm the Lyon Circuit Court.

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1059.  CIVIL PROCEDURE. DISMISSAL FOR FAILURE TO REVIVE AFTER NOTICE OF DEATH OF DEFENDANT.
DROHAN (PEGGY)
VS.
ADAMS (WILLEAN A.)
OPINION DISMISSING
COMBS (PRESIDING JUDGE)
MOORE (CONCURS) AND NICKELL (CONCURS)
2010-CA-002280-MR
NOT TO BE PUBLISHED
KENTON

COMBS, JUDGE:    Peggy Drohan appeals an order of the Kenton Circuit Court dismissing her personal injury action against Willean A. Adams. The action was dismissed for Drohan’s failure to revive the action within one year of the death of the alleged tortfeasor. Under the circumstances of this case, we have no jurisdiction over this cause of action because it terminated upon Adams’s death. Consequently, we must dismiss the appeal.

Aside from the estoppel issue, the Court’s discussion of its jurisdiction over the decedent in Harris is critical to our conclusion that Drohan’s appeal must be dismissed. Over a strong dissent, the Supreme Court of Kentucky in Harris was ultimately persuaded that it did have jurisdiction to consider the decedent’s motion for discretionary review for two reasons. First, it was satisfied that the decedent’s automobile insurance carrier had sufficiently similar exposure to liability as the decedent’s estate. This fact assured the court that adequate “virtual representation” had been provided to the decedent throughout the proceedings.    Second, the court was persuaded that the issue of whether an attorney for a deceased defendant had a duty to disclose the death of his client to opposing counsel was of such great import to the Bar that it compelled resolution. In the case before us, there is no ethical problem involving disclosure of the fact of Adams’s death. Counsel properly complied with CR 25.01(1).

Additionally, Adams’s automobile insurance carrier had never been a party to Drohan’s personal injury action — nor could it have ever been made one under our jurisprudence after the fact of her death since revival never occurred. The tort action against Adams died with her and was not revived against her representative pursuant to the requirements of KRS 395.278 and CR 25.01(1). As a result, we have no appellee over whom we could acquire jurisdiction. See Mitchell v. Mitchell, 602 S.W.2d 687 (1980).
Consequently, the appeal is hereby dismissed.

NOTE:  Appellant's arguement that the insurance company was the real party in interest and that revival was an outdated concept was rejected.  See,

On appeal, Drohan urges this court to dispense with our requirement that an action be revived against the representative or successor of a defendant within one year after the defendant’s death. In her prehearing statement, Drohan argues that revivor under the provisions of Kentucky Revised Statute(s) (KRS) 395.278 is “an outmoded concept where the real party in interest is an insurance company providing a defense” to an alleged tortfeasor. Drohan contends that our jurisprudence prohibiting a direct action against an alleged tortfeasor’s insurance carrier should be relaxed under these circumstances and that the trial court’s dismissal of her personal injury action was, therefore, inappropriate.
Under common law principles, a tort action is extinguished upon the death of its only defendant. Hardin Co. v. Wilkerson, 255 S.W.3d 923 (Ky. 2008). The provisions of KRS 395.278 permit the revival of such an action, however, where a proper party is substituted for the defendant within the period of limitations. The motion for substitution of the defendant may be made by any party to the pending litigation, but it must be made within the period prescribed by law. CR 25.01(1).

Drohan concedes that she knew that Adams had died and that her personal injury action was not revived within the one-year period which is allowed by the provisions of KRS 395.278. However, she argues that revivor was unnecessary in this case since Adams’s insurance carrier was always the real party in interest. According to Drohan, Adams’s insurance carrier is (and always was) a virtual party to the litigation who “merely steps forward and into the shoes of the deceased defendant.” Brief at 11.

In support of her position, Drohan relies upon the decision of the Supreme Court of Kentucky in Harris v. Jackson, 19 S.W.3d 297 (Ky. 2006). In that case, the court held that the trial court erred by dismissing Jackson’s claim for failure to
revive pursuant to the provisions of KRS 395.278. Although Jackson did not timely move to revive her claim, the court held that Harris’s estate was estopped from raising the statute of limitations defense because Harris’s attorney had failed to inform Jackson that Harris had died. Relying upon its holding in Kentucky Bar Association v. Geisler, 938 S.W.2d 578 (Ky. 1997), the court reiterated that disclosure of such an important fact (the death of an attorney’s client) is always required. The court held that where that obligation had not been met, an estoppel arose barring use of the statute of limitations as a defense. This holding does not govern the matter before us because notice of the death was duly provided.