Sept. 30, 2011 COA Minutes —        Nos. 874-909 (6  decisions; 10 published)

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PUBLISHED DECISIONS OF COA:

875.  GOVERNMENT.  ADMINISTRATIVE LAW.  CERTIFICATE OF NEED.
FLEMING COUNTY HOSPITAL DISTRICT, ET AL.
VS.
FLEMING REGIONAL MEDICAL IMAGING, PLLC, ET AL.
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
CAPERTON (CONCURS) AND LAMBERT (CONCURS)
2009-CA-001275-MR
TO BE PUBLISHED
FRANKLIN

KELLER, JUDGE: Fleming County Hospital District, D/B/A Fleming County Hospital (the Hospital) and the Kentucky Hospital Association (the Association) appeal from the Franklin Circuit Court's finding that Fleming Regional Medical Imaging (Medical Imaging) is exempt from the certificate of need requirements in Kentucky Revised Statutes (KRS) Chapter 216B. For the following reasons, we affirm.

884.  REAL PROPERTY.
BUTLER (DAVID S.)
VS.
JORDAN (NAOMI BUTLER), ET AL.
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
TAYLOR (CONCURS) AND KELLER (CONCURS)
2010-CA-000035-MR
TO BE PUBLISHED
MONROE

LAMBERT, SENIOR JUDGE: David S. Butler appeals from a judgment of the Monroe Circuit Court dismissing his action to set aside a deed on grounds of forgery. The circuit court concluded that his claim was precluded by prior litigation between the parties and was thus barred by res judicata. For reasons that follow, we affirm.

886.  TRIAL.  DIRECTED VERDICT. ERROR ON SUBMITTING DISMISSED PARTY FAULT TO JURY AFTER FAVORABLE DIRECTED VERDICT.
SMITH (SHAWN N.)
VS.
BARGO (CRYSTAL N.)
OPINION REVERSING AND REMANDING
LAMBERT (PRESIDING JUDGE)
CAPERTON (CONCURS) AND THOMPSON (CONCURS)
2010-CA-000241-MR
TO BE PUBLISHED
KNOX

LAMBERT, SENIOR JUDGE: Shawn Smith appeals from a final judgment entered upon a jury verdict assigning him a portion of the liability arising from a motor vehicle accident. Prior to submission of the case to the jury, Smith sought and was granted a directed verdict. On submission, however, the jury found Smith partially at fault for the accident and attributed to him a portion of the liability. The trial court then entered judgment assigning Smith that portion of the liability for those damages. Upon review, we reverse and remand to the Knox Circuit Court for further proceedings consistent with this opinion.

In the instant case as in Investors Heritage, it was error to present the question of Smith’s liability to Bargo to the jury. The trial court had granted Smith’s unopposed motion for a directed verdict as it pertained to Bargo’s claims against him. Although she suggested she intended to later amend her pleading to conform to the facts as presented pursuant to Kentucky Rules of Civil Procedure (CR) 15.02, she presented no new evidence that would require such amendments. Bargo repeatedly offered statements that Smith was not at fault. It was her testimony that caused the trial court to grant Smith’s motion for a directed verdict as it related to her claims against him.

Later in the trial however, Morgan and Caldwell Freight Lines presented evidence that Smith was at fault. That evidence was sufficient to persuade the jury to find that Smith was 75% at fault when he tried to pass the semi-tractor-trailer driven by Morgan. But, the question of Smith’s liability to Bargo had already been decided by the trial court for her failure to present any evidence supporting her claim against Smith. The order of the court granting a motion for a directed verdict is effective without any assent of the jury. CR 50.01.

It was appropriate for the jury to determine Smith’s portion of fault incident to its determination of Morgan and Caldwell Freight’s fault. The error was made when the trial court then adjudged liability for that fault to Smith after he had already been dismissed from the case. The question of Smith’s comparative fault as a defense to the claim against Morgan and Caldwell Freight Lines was properly before the jury. Bargo’s claim against Smith, however, was not in light of the trial court’s directed verdict. That claim had already been resolved.

The judgment of the Knox Circuit Court is reversed and this cause remanded for further consistent proceedings.

888.  TRIAL.  ACCORD AND SATISFACTION.  REQUESTS FOR ADMISSION.
ESTES (JAMES R.), ET AL.
VS.
MCKINNEY (DONALD E.), ET AL.
OPINION AFFIRMING
SHAKE (PRESIDING JUDGE)
MOORE (CONCURS) AND VANMETER (CONCURS)
2010-CA-000576-MR
TO BE PUBLISHED
MCCRACKEN

SHAKE, SENIOR JUDGE: James Estes, Randall Hayden, and Success Management Team, Inc. (collectively referred to as “Success”) appeal from a McCracken Circuit Court summary judgment granted in favor of Donald McKinney and Town & Country Real Estate, Inc. (collectively referred to as “Town & Country”). Success bases its appeal on the following grounds: (1) the trial court inappropriately applied the doctrine of accord of satisfaction; and (2) the trial court failed to make findings of fact regarding Success’s unanswered requests for admissions. After careful reviews of the record and applicable case law, we affirm the McCracken Circuit Court order of summary judgment.

893. CRIMINAL PROCEDURE.
COMMONWEALTH OF KENTUCKY
VS.
PARKER (ROBERT MASON)
OPINION REVERSING
SHAKE (PRESIDING JUDGE)
COMBS (CONCURS AND FILES SEPARATE OPINION) LAMBERT (CONCURS AND JOINS IN JUDGE COMBS'S OPINION)
2010-CA-001215-MR
TO BE PUBLISHED
JEFFERSON

SHAKE, SENIOR JUDGE: The Commonwealth of Kentucky appeals from the March 19, 2010, and May 27, 2010, orders of the Jefferson Circuit Court. Those orders granted defendant Appellee Robert Mason Parker’s motion to suppress certain evidence and denied the Commonwealth’s motion to reconsider, respectively. For the following reasons, we reverse.

899.  CRIMINAL SENTENCING
WILLIAMS (W. C.)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
WINE (PRESIDING JUDGE)
TAYLOR (CONCURS) AND CAPERTON (CONCURS)
2010-CA-001603-MR
TO BE PUBLISHED
MUHLENBERG

WINE, JUDGE: W.C. Williams, pro se, appeals from an order of the Muhlenberg Circuit Court denying his Kentucky Rules of Civil Procedure (CR) 60.02, “Motion to Correct Sentence.” Williams alleges on appeal that the trial court erred in ordering his sentences to run consecutively in Case Nos. 04-CR-00164 and 07-CR- 00059. The question presented to this Court on appeal is whether a subsequent offense that is committed during a period of pre-trial diversion may be considered committed while “awaiting trial” for the purposes of consecutive sentencing under Kentucky Revised Statutes (KRS) 532.060(3).

For the forgoing reasons, the mandates of KRS 533.250(3) apply and Williams’ sentences must run consecutively. Accordingly, we affirm the judgment of the Muhlenberg Circuit Court.

900.  CONSTITUTIONAL LAW.  SCHOOLS. BUSSING AND DESEGREGATION.
FELL (CHRIS), ET AL.
VS.
JEFFERSON COUNTY BOARD OF EDUCATION, ET AL.
OPINION REVERSING AND REMANDING
THOMPSON (PRESIDING JUDGE)
CAPERTON (CONCURS AND FILES SEPARATE OPINION) AND COMBS (DISSENTS AND FILES SEPARATE OPINION)
2010-CA-001830-MR
TO BE PUBLISHED
JEFFERSON

THOMPSON, JUDGE: This is a challenge to the Jefferson County Public School’s (JCPS) student assignment plan filed by thirteen parents after their children received 2010-2011 school year assignments to schools other than schools nearest their homes.1    The issue is narrowly framed: Does the involuntary assignment of a student to a school other than that nearest the student’s home violate Kentucky Revised Statutes (KRS) 159.070? Thus, the resolution of this appeal requires that we construe the language used in that statute which provides:
Each school district shall constitute a separate attendance district unless two (2) or more contiguous school districts, with the approval of the Kentucky Board of Education, unite to form one (1) attendance district. Controversies arising in attendance districts relating to attendance matters shall be submitted to the Kentucky Board of Education for settlement. In case an agreement suitable to all parties cannot be reached, the Kentucky Board of Education may dissolve a united district. In case of dissolution, each school district involved may unite with other contiguous school districts in forming a united attendance district or may act as a separate attendance district. Within the appropriate school district attendance area, parents or legal guardians shall be permitted to enroll their children in the public school nearest their home.
(Emphasis added). We emphasize the final sentence because it is crucial to our decision.
1 After their children were assigned to the school of their choice, four of the parents withdrew from the litigation, leaving nine appellants.

It is beyond the scope of this opinion to write a complete history of school desegregation. However, the parties have cited the history, and a brief synopsis relative to JCPS is helpful to place our discussion in context.

We reiterate that the statute does not require that every child enroll in the school nearest his or her home but only that the parent or legal guardian has a right to enroll the child in a school near his or her home. All children have the freedom, with JCPS’s permission, to enroll in magnet schools and schools other than those located nearest their homes. Our decision does not mandate the abolition of specialized schools including, but not limited to, magnet schools, schools for the gifted, special language programs, and special education programs. That issue is not before this Court and is a matter appropriately addressed when the new plan is developed. On remand, and when submitting its student assignment plan for the 2012-2013 school year, JCPS will have the opportunity to request that specific schools not be included in the statutory mandate because the school serves specialized needs throughout the county. Moreover, JCPS and all school districts retain the discretion to establish attendance areas and implement transportation plans limited only by reasonable compliance with constitutional and statutory law. However, until the legislature declares otherwise, JCPS and all school districts in this Commonwealth must comply with KRS 159.070.
Based on the foregoing, the order of the Jefferson Circuit Court is reversed and the case remanded for proceedings consistent with this opinion.

902.  CRIMINAL PROCEDURE.
VEGA (ERIKA)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
CAPERTON (CONCURS) AND KELLER (CONCURS
2010-CA-001909-DG
TO BE PUBLISHED
FAYETTE

LAMBERT, JUDGE: Erick Vega appeals from the Fayette Circuit Court’s order upholding the Fayette District Court’s denial of his motion to suppress evidence obtained as a result of his arrest for carrying a concealed deadly weapon. Vega argues on appeal that the weapon was not concealed. After careful review of the record, we affirm.

905.  FAMILY LAW – GRANDPARENT VISITATION.
WALKER (MICHELLE)
VS.
BLAIR (DONNA)
OPINION AFFIRMING
CAPERTON (PRESIDING JUDGE)
COMBS (CONCURS) AND THOMPSON (CONCURS)
2010-CA-002228-ME
TO BE PUBLISHED
JEFFERSON

CAPERTON, JUDGE: Michelle Walker (“Michelle”) appeals from the September 10, 2010, order of the Jefferson Family Court which granted grandparent visitation to Donna Blair (“Donna”). Michelle also appeals from the August 16, 2010, order denying her motion to dismiss and the November 8, 2010, order denying her motion to alter, amend, or vacate. Having concluded that the trial court did not err in its grant of visitation, we affirm.

906.  WORKERS' COMP
UNINSURED EMPLOYERS' FUND
VS.
STANFORD (MATTHEW), ET AL.
OPINION AND ORDER AFFIRMING AND DENYING
SHAKE (PRESIDING JUDGE)
DIXON (CONCURS) AND NICKELL (CONCURS)
2010-CA-002288-WC
2011-CA-000075-WC
TO BE PUBLISHED
SHAKE, SENIOR JUDGE: The Uninsured Employers’ Fund (“UEF”) appeals from, and the U.S. Army Cadet Corps., Inc. (“USACC”) cross-appeals from the December 1, 2010, opinion of the Workers’ Compensation Board (“Board”) which affirmed in part, reversed in part, and remanded the Administrative Law Judge’s (ALJ’s) July 12, 2010, opinion, award, and order adjudicating the benefits claim of Matthew Stanford. Because we find no error with the Board’s order, we affirm.

TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

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898. NEGLIGENCE. PROXIMATE CAUSE.  AUTOMOBILE ACCIDENT.
HALL (JAMES)
VS.
MOORE (PHILLIP), ET AL.
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
KELLER (CONCURS) AND MOORE (CONCURS)
2010-CA-001561-MR
NOT TO BE PUBLISHED
FLOYD

CLAYTON, JUDGE: This is an appeal from the Floyd Circuit Court. The Appellant James T. Hall, asserts that the trial court erred in granting summary judgment to the Appellees. For the reasons that follow, we affirm the trial court’s judgment.

The trial court found that Little’s accident was not the proximate cause of Hall’s subsequent accident. Hall argues that Moore’s emergency vehicle would not have been on the mine road but for Little’s accident. In dealing with causation, the Kentucky Supreme Court in Pathways, Inc. v. Hammons, 113 S.W.3d 85, 92 (Ky. 2003), opined,
The court has the duty to determine “whether the evidence as to the facts makes an issue upon which the jury may reasonably differ as to whether the conduct of the defendant has been a substantial factor in causing the harm to the plaintiff.”
-5-
(Citations omitted). In this case, the facts do not create an issue upon which a jury might reasonably differ as to whether Little’s conduct was a substantial factor in causing any harm to Hall.
In order to bring a successful negligence action against Little, Hall would have to establish that Little: (1) owed him a duty of care; (2) breached that duty; and (3) thereby proximately caused Hall’s damages. Illinois Cent. R.R. v. Vincent, 412 S.W.2d 874, 876 (Ky. 1967). In Dixon v. Kentucky Utilities Co., 295 Ky. 32, 174 S.W.2d 19, 21–2 (Ky. App. 1943) (quoting Seith v. Com. Electric Co., 241 Ill. 252, 89 N.E. 425, 427, 24 L.R.A., N.S., 978, 132 Am.St. Rep. 204 (Ill. 1909)), the court explained proximate cause as:
[t]o constitute proximate cause the injury must be the natural and probable consequence of the negligence, and be of such a character as an ordinarily prudent person ought to have foreseen might probably occur as a result of the negligence. It is not necessary that the person guilty of a negligent act or omission might have foreseen the precise form of the injury; but, when it occurs it must appear that it was a natural and probable consequence of his negligence. If the negligence does nothing more than furnish a condition by which the injury is made possible, and that condition causes an injury by the subsequent independent act of a third person, the two are not concurrent, and the existence of the condition is not the proximate cause of the injury. Where the intervening cause is set in operation by the original negligence, such negligence is still the proximate cause, and where the circumstances are such that the injurious consequences might have been foreseen as likely to result from the first negligent act or omission, the act of the third person will not excuse the first wrongdoer. When the act of a third person intervenes, which is not a consequence of the first wrongful act or omission, and which could not have been foreseen by the exercise of reasonable diligence, and without which the injurious consequence could not have happened, the first act or omission is not the proximate cause of the injury. The test is whether the party guilty of the first act or omission might reasonably have anticipated the intervening cause as a natural and probable consequence of his own negligence, and, if so, the connection is not broken; but if the act of a third person, which is the immediate cause of the injury, is such as in the exercise of reasonable diligence would not be anticipated, and the third person is not under the control of the one guilty of the first act or omission, the connection is broken, and the first act or omission is not the proximate cause of the injury.

The trial court was correct in its assessment that Little’s accident was not the proximate cause of Hall’s accident. While the trial court improperly implied that contributory negligence was a part of the basis for its judgment, we find that the trial court was correct in finding Little’s accident was not the proximate cause of Hall’s subsequent accident. Hall’s accident was not the natural and probable results of Little’s accident. Thus, we will affirm the summary judgment entered in favor of Little and Wanda Slone Trucking.