Kentucky Court Report - SCOKY & COAKY

July 2008 Court of Appeals Argument Calendar posted

Michael Stevens — 2008-07-03T19:20:33-04:00

July 2008 Court of Appeals Argument Calendar posted.

LOCATION: COURT OF APPEALS COURTROOM, 360 DEMOCRAT DRIVE,
FRANKFORT, KENTUCKY
DATE: Tuesday, July 08, 2008

1:00 PM STUMBO DIXON LAMBERT
THOMAS ENVIRONMENTAL CONTRACTING VS BOYD FISCAL COURT 2007CA000570
Civil appeal; interpretation of Boyd County ordinance No. 149-98 dealing with the qualifications of those bidding for county construction contracts; at what point are such qualifications determined.

3:30 PM BUCKINGHAM CAPERTON STUMBO
MKJ VS BOURBON COUNTY BOARD OF EDUCATION
2007CA000832
Directions on remand/42 U.S.C. 1983.

LOCATION: JEFFERSON COUNTY JUDICIAL CENTER, 10TH FLOOR APPELLATE
COURTROOM, 700 WEST JEFFERSON STREET, LOUISVILLE,
DATE: Tuesday, July 08, 2008

9:30 AM COMBS KELLER HENRY
COMMONWEALTH OF KENTUCKY VS CROMWELL LOUISVILLE ASSOCIATES ET AL.
2007CA001128
Appeal is taken from administrative procedures concerning property valuations determined by the Jefferson County PVA.

10:15 AM COMBS KELLER HENRY
LUCY STEILBERG VS C2 FACILITY SOLUTIONS, LLC ET AL. 2007CA001500
Appellant challenges entry of summary judgment in favor of appellee on the issue of whether appellant was an independent contractor not subject to the provisions of KRS Chapter 344.

11:00 AM HENRY COMBS KELLER
KENNETH DUTSCHKE ET AL. VS JIM RUSSELL REALTORS, INC. ET AL. 2007CA001146 Civil; issue - constitutionality of KUAA as applied when fraud in the inducement re underlying contract and in light of Louisville Peterbilt and 3D Enterprises.

1:30 PM CAPERTON KELLER WINE
ADAM WALTERS VS COMMONWEALTH OF KENTUCKY 2006CA002614
Direct appeal of 2nd degree Manslaughter. Appeal focus on application of KRS 503.055 and 503.085

LOCATION: JEFFERSON COUNTY JUDICIAL CENTER, 10TH FLOOR APPELLATE
COURTROOM, 700 WEST JEFFERSON STREET, LOUISVILLE,
DATE: Wednesday, July 09, 2008

9:30 AM KELLER COMBS HENRY
LAW OFFICES OF JOHN P. PLYMIRE, PLC VS R. W. LYNCH, INC. 2007CA001201
Appellant appeals from an order of the circuit court enforcing a foreign judgment. Appellee argues, in part, that Appellant is precluded because it did not move to vacate the arbitration award within 90 days.

10:15 AM KELLER COMBS HENRY
MT. HOLLY NURSING CENTER ET AL. VS KAREN CROWDUS 2007CA001708
This appeal regards the binding nature of an arbitration agreement found within admission documents to the nursing facility. The admission documents were initially signed by the resident’s friend. Issues of agency and contract law.

11:00 AM HENRY COMBS KELLER
AUTO OWNERS INSURANCE COMPANY VS OMNI INDEMNITY COMPANY 2007CA001165
Civil; Insurance; Coots issue; Omni insured the tortfeaser and offered the victim their liability policy limits; AUTO OWNERS, victim's uim carrier, substituted per Coots by advancing the liability limits to the victim; victim/AUTO OWNERS then sued tortfeaser and Omni; tortfeaser filed bankruptcy but no proof of claim was filed by victim or AUTO OWNERS in bankruptcy proceedings; the victim/AUTO OWNER'S lawsuit was dismissed; issue - is AUTO OWNERS entitled to restitution for substituted payment from Omni (tort feasor's liability insurance company)?

Actually, it might be simpler to state as follows: is the underinsured motorist carrier entitled to restitution or payment from the liability carrier when the the tortfeasor goes bankrupt and no proof of claim was filed in the bankruptcy proceedings by either the victim for the personal injury claim or the UIM carrier for its claim against the bankrupt tortfeasor? Of course, is the UIM carrier's claim really a subrogation claim against the tortfeasor for the money it advanced or a claim for indemnity against the liability insurer? I always thought/believed the claim of the uim carrier upon advancing the liability limits was an indemnity claim against the liability carrier up to the amount it advanced and a subrogation claim against the tortfeasor for any amounts the uim carrier pays to its own insured as UIM benefits. Thus, it would sound like the claim is against the liability carrier for indemnity rather than subrogation, and can the liability carrier plead the affirmative defense of bankruptcy of its insured? Furthermore, did the UIM carrier have notice of the bankruptcy and was it discharged? Wow! I guess it wasn't simper!

LOCATION: FAYETTE COUNTY CIRCUIT COURT, COURTROOM I, 4TH FLOOR, 120
NORTH LIMESTONE, LEXINGTON, KENTUCKY
DATE: Monday, July 21, 2008

10:00 AM GUIDUGLI CAPERTON VANMETER
YOST ENERGY, LLC VS JERRY GAINES ET AL. 2007CA001715
Oil & Gas Lease case. Issues: Lease interpretation, direct verdict and Jnov.

10:45 AM GUIDUGLI CAPERTON VANMETER
JOE YOUNG ET AL. VS DONALD DILLOW ET AL. 2007CA001405
Medical malpractice wrongful death case. Judgment for defense.

11:30 AM CAPERTON VANMETER GUIDUGLI
KERRI BULLINGTON VS WAYNE BUSH, M.D. 2007CA000705
Medical Malpractice Appeal - Issue is whether trial court committed error in limiting cross-examination regarding medical records and failing to admit certain medical records into evidence

LOCATION: COURT OF APPEALS COURTROOM, 360 DEMOCRAT DRIVE,
FRANKFORT, KENTUCKY
DATE: Thursday, July 24, 2008

9:30 AM THOMPSON NICKELL ROSENBLUM
KENTUCKY PUBLIC SERVICE COMMISSION ET AL. VS COMMONWEALTH
OF KENTUCKY
2007CA001635
Appellants are a power company and the Kentucky Public Service Commission (PSC) who appeal from an order of the Franklin Circuit Court reversing various PSC orders approving a rate schedule which permits the power company from recovering future pipeline replacement costs by means of a surcharge.

10:15 AM NICKELL THOMPSON ROSENBLUM
COMMONWEALTH OF KENTUCKY VS DONALD COLWELL 2007CA002197
Commonwealth appeals trial court’s grant of suppression motion following consensual search of vehicle.

11:00 AM ROSENBLUM NICKELL THOMPSON
DORIS MCCLURE VS DOLLAR GENERAL STORE, LTD. 2007CA001768
Appeal from summary judgment entered in favor of employer on claims of gender discrimination, age discrimination, outrage or intentional infliction of emotional distress, defamation and negligent supervision.

11:45 AM COMBS NICKELL GRAVES
MARY COLEMAN VS LONES ADAMS 2007CA001586
Property dispute involving parameters of private ownership and use of a public right of way.

LOCATION: HARRISON COUNTY JUSTICE CENTER, CIRCUIT COURTROOM, 115
COURT STREET, CYNTHIANA, KENTUCKY
DATE: Monday, July 28, 2008

1:30 PM TAYLOR CLAYTON MOORE
RANDY MARSHALL VS COMMONWEALTH OF KENTUCKY 2007CA001320
Whether circuit court erred by revoking conditional discharge and failing to consider alternative sentencing.

2:15 PM TAYLOR CLAYTON MOORE
ROBERT HOLLON VS COMMONWEALTH OF KENTUCKY 2007CA001053
Whether circuit court properly denied appellant’s RCr 11.42 motion.

3:00 PM TAYLOR CLAYTON HENRY
BOBBIE HILL-FERDINANDO ET AL. VS EMERGENCY CARE PHYSICIANS OF
NORTHERN KENTUCKY, P.S.C. ET AL.
2007CA001814
Whether circuit court erroneously denied motion for new trial upon issue of destruction of earning capacity; whether circuit court erred by denying motion for directed verdict; whether circuit court improperly reduced costs awarded under KRS 453.040.

LOCATION: HARRISON COUNTY JUSTICE CENTER, CIRCUIT COURTROOM, 115
COURT STREET, CYNTHIANA, KENTUCKY
DATE: Tuesday, July 29, 2008

9:30 AM MOORE CLAYTON TAYLOR
MATTHEW FORE VS COMMONWEALTH OF KENTUCKY 2007CA001382
Criminal Appeal involving whether Appellant was interrogated without being read his Miranda rights; whether trial court erred in granting the Commonwealth access to Appellant’s PSI report; and whether trial court erred in refusing to allow Appellant to withdraw his guilty plea and to represent himself without holding a hearing.

10:15 AM TAYLOR CLAYTON MOORE
JITANDER DUDEE VS CHARLENE DUDEE ET AL. 2007CA001331
Whether circuit court erroneously obtained a receiver to pay child support, maintenance and judgment amounts from accounts of business.

2007CA001742
11:00 AM CLAYTON MOORE TAYLOR
E.& P.P. CAB. VS SIERRA CLUB 2007CA001723
Challenge of circuit court reversal of issuance of an air quality permit.

Minutes for Kentucky Court of Appeals for June 27, 2008 (COA) (2008:32)

Michael Stevens — 2008-07-03T19:05:51-04:00

Minutes for Kentucky Court of Appeals for June 27, 2008 (COA) (2008:32)

Click here for PDF copy of Minutes posted at AOC with links to each published and non-published decision this week.
21 rendered decisions - Numbered 724-744
5 published - 724; 728; 729; 733; 741

Minutes List - all published and nonpublished decisions with links to the full text of the decision posted at AOC's web site plus orders regarding dismissals, extraordinary writs, discretionary review.

LAWWIRE: April 18, 2008 - KENTUCKY COURT OF APPEALS DECISIONS (2008:19)

Michael Stevens — 2008-06-29T07:47:20-04:00

April 18, 2008 - KENTUCKY COURT OF APPEALS DECISIONS (2008:19)

HTML Version of the LawWire - Published and Nonpublished decisions
PDF Version of the LawWire
COA Argument Calendars
SCOKY Argument Calendars
Published decisions are digested below with links to full text, but the "not to be published" can be found in the minutes (by name, court, judges, decision, number, county, and LINK to full text)
MINUTES from AOC for this week saved at our site and click here for the AOC's Official Minutes [which is provided for backup purposes]
23 rendered decisions
- Nos. 462-484
- 3 published decisions

GOVERNMENT RETIREMENT: KERS may discontinue retirement disability benefits if it determines employee was no longer incapacitated prior to his/her normal retirement date: KERS BOARD OF TRUSTEES v. EST. OF DAISEY CHANEY (COA 4/18/2008)

Michael Stevens — 2008-06-29T07:07:20-04:00

BOARD OF TRUSTEES V. EST. OF DAISEY CHANEY
GOVERNMENT RETIREMENT: KERS may discontinue retirement disability benefits if it determines employee was no longer incapacitated prior to his/her normal retirement date
Commonwealth Of Kentucky
PUBLISHED: AFFIRMING
PANEL: MOORE PRESIDING; COMBS, CAPERTON CONCUR
FRANKLIN COUNTY
DATE RENDERED: 4/18/2008

The Board of Trustees of the Kentucky Employees Retirement Systems (KERS) appealed circuit court setting aside the Board’s order adopting a report and recommended order of a KERS hearing officer in which the officer recommended KERS suspend the retirement disability benefits of the decedent, Daisy Chaney. KERS argued its hearing officer’s recommendation was supported by substantial evidence, thus concluding that the circuit court erred. However, finding that the hearing officer’s recommendation was not supported by substantial evidence, the COA AFFIRMED.

In her application, Chaney claimed that she was unable to perform her duties as a case worker due to her physical and mental condition. However, KERS’ medical review board denied Chaney’s application. Eventually, Chaney appealed her claim to the Disability Appeals Committee, which denied her application. After Chaney died, her estate continued her appeal.

Once KERS terminated Chaney’s retirement disability benefits, her estate filed a complaint with the Franklin Circuit Court seeking, pursuant to KRS 61.665(5) and KRS 13B.140, appellate review of the Board of Trustees’ final order adopting the hearing officer’s report. In the estate’s complaint, it argued that KERS’ termination of Chaney’s benefits was arbitrary, capricious and not supported by substantial evidence.

The circuit court noted that the record contained no evidence addressing whether Chaney’s mental condition improved, became worse or continued without change in the preceding two to three years in which Chaney did not seek counseling and further noted that KERS had asserted that Chaney’s condition was not permanent because she could have improved with twelve months of therapy.

The circuit court concluded that Dr. Ebben opined that Chaney could have recovered with appropriate treatment, but he never found that she had recovered. Thus, the circuit court denied KERS’ motion to alter, amend or vacate.

According to KERS, if Chaney’s mental condition was disabling, then she would have sought treatment for it as she did prior to being approved for benefits.

According to KRS Chapter 61, an employee of the Commonwealth may retire on disability if, since the last date of employment, the employee is mentally or physically incapacitated. An employee is incapacitated if he is unable to perform his job or a job of like duties and his incapacity is permanent. KRS 61.600(1) and (3)(a)-(c).

An employee’s incapacity will be considered permanent if it is expected to continuously last for a period of not less than twelve months from the employee’s last day of paid employment. KRS 61.600(5)(a).

Once an employee has been approved to receive retirement disability benefits, KERS may discontinue such benefits if it determines that, prior to the employee’s normal retirement date, he is no longer incapacitated. KRS 61.615(2).

KERS’ burden was not just to prove that Chaney experienced an improvement in her condition but that she experienced such an improvement she was no longer incapacitated as that term is defined in KRS 61.600.

Because the hearing officer’s report and recommended order were not
supported by substantial evidence, the Franklin Circuit Court correctly set aside the Board of Trustees’ order adopting the hearing officer’s recommendation. Consequently, the decision of the Franklin Circuit Court was affirmed.

Digested by Michael Stevens

SOVEREIGN IMMUNITY: School board employees afforded same immunity, if any, to which agency entitled; discretionary vs. ministerial acts are not bright line and measured against Yanero: PENNINGTON V. GREENUP COUNTY BOARD OF EDUCATION

Michael Stevens — 2008-06-29T07:01:39-04:00

PENNINGTON V. GREENUP COUNTY BOARD OF EDUCATION
SOVEREIGN IMMUNITY: School board employees afforded same immunity, if any, to which agency entitled; discretionary vs. ministerial acts are not bright line and measured against Yanero
RENDERED: APRIL 11, 28, 2008; 2:00 P
PUBLISHED: AFFIRMING
GREENUP COUNTY
DATE RENDERED: 4/18/2008

Parent of child who was mentally retarded brought action against school and his teacher when child fell and broke his ankle at school outing. The circuit court granted summary judgment to both defendants, holding that the Board of Education is protected from suit by governmental immunity and that Ms. Kelley (teacher) is protected by qualified immunity.

The issue presented on this appeal was whether or not the circuit court erred when it found that Tracey Kelley's actions in supervising Andrew were discretionary rather than ministerial in nature, resulting in the legal conclusion that Ms. Kelley is entitled to the protection of qualified official immunity. COA affirmed.

The child broke his ankle when he reached over and attempted to kiss another student.

The extent to which local school boards and their employees are protected from suit by governmental immunity is an area of law which has received considerable attention in Kentucky's appellate courts in recent years. Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001), the most frequently cited recent Kentucky case relating to governmental immunity, involved a high school student who was injured when he was struck by a baseball thrown by another student on school grounds. In Lamb v. Holmes, 162 S.W.3d 902 (Ky. 2005), our Supreme Court, relying on qualified official immunity, dismissed a 42 U.S.C. § 1983 “strip search” action against school employees.

It is now familiar law in Kentucky that when an employee of a local board of education is sued in her representative capacity, her “actions are afforded the same immunity, if any, to which the agency, itself, would be entitled[.]” Yanero at 522.

The courts cannot make a “bright line” rule of demarcation between discretionary and ministerial acts. The act or acts complained of in each case must be measured against the standards quoted above from Yanero. Consistent application of those standards can prove difficult, as seen in Williams at 150 (teachers' duty to supervise students a ministerial function); Sloas at 479-481 (deputy jailer's supervision of inmates while cutting trees and brush a discretionary function) and Lamb at 909 (search of students by school personnel a discretionary function).

After examining these precedents and others, the COA was unable to conclude that the circuit court erred as a matter of law by granting summary judgment in favor of Ms. Kelley.

For purposes of “discretionary versus ministerial” analysis, it was the COA's opinion that the teacher's decisions required as much personal deliberation and judgment as that exercised by the employees in Sloas and Lamb, and we are unable to rationally distinguish the relevant factual bases of those recent cases from that of the present case.

Digested by Michael Stevens

CRIMINAL LAW: Judge's decision permitting withdrawal of guilty plea after termination of pre-trial diversion program affirmed since no final judgment: COMMONWEALTH v. LOPEZ (COA 4/18/2008)

Michael Stevens — 2008-06-29T07:00:09-04:00

COM. V. LOPEZ
CRIMINAL LAW: Judge's decision permitting withdrawal of guilty plea after termination of pre-trial diversion program affirmed since no final judgment
2006-CA-001500-MR
PUBLISHED: AFFIRMING
PANEL: COMBS PRESIDING; DIXON, KNOPF CONCUR
FLEMING COUNTY
DATE RENDERED: 4/18/2008

Defendant had pled guilty and sentenced which included pre-trial diversion program's placement in Kentucky Se Offender Treatment Program. Defendant was terminated from SOTP for failing to admit to his involvement in the offenses for which he was indicted and failure to successfully complete a "therapy task" within an allotted 90-day period.

By statute, defendant was then to be sentenced according to his plea. COA affirmed judge's decision permitting withdrawing plea of guilty as he contended the counselors at SOTP wished for defendant to admit to conduct which he claimed to be innocent. RCr 8.10 allows a defendant to withdraw his guilty plea any time before "judgment" which means "final judgment", and since the diversion program essentially delays the final adjudication, then the withdrawal of the guilty plea is a viable possibility.

Digested by Michael Stevens

COA vacates dismissal for faiure to answer discovery for trial judge's failure to make findings of fact: STAPLETON V. SHOWER, M.D. (COA 4/11/2008)

Michael Stevens — 2008-06-25T22:40:02-04:00

STAPLETON V. SHOWER, M.D.
CIVIL PROCEDURE: Trial judge's dismissal of pro se medical negligence claim for failure to answer discovery reversed and remanded by COA for failure to make findings of fact
2007-CA-000213
PUBLISHED: VACATING AND REMANDING
PANEL: THOMPSON PRESIDING; CAPTERTON, LAMBERT CONCUR
MASON COUNTY
DATE RENDERED: 04/11/2008

Patient and her husband filed a pro se medical malpractice action against doctor and clinic who moved at trial to dismiss due to patient's failure to respond to discovery requests. Trial court dismissed. COA vacated and remanded.

Although the circuit court has broad discretion when applying the “civil death penalty,” that is, dismissal with prejudice, it should be resorted to only in the most extreme cases and, when resorted to should be carefully scrutinized by an appellate court.

In Toler, the Court further emphasized that the trial court is to consider the factors set forth in Ward, 809 S.W.2d 717, when making a determination as to whether to order dismissal pursuant to CR 41.02. Those factors include: “(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) the meritoriousness of the claim; (5) prejudice to the other party; and (6) the availability of alternative sanctions.” Id. at 351 (citing Ward, 809 S.W.2d at 719).

These same factors are equally relevant when dismissal is imposed as a sanction for failure to comply with discovery requests. In Ward, the fact underlying the basis for the dismissal was the plaintiff's failure to timely respond to a discovery request and, consequently, the identification of an expert witness. Thus, the law set forth in Ward and, as clarified in Toler, is controlling when the court considers the issue of involuntary dismissal with prejudice.

In this appeal, the COA noted there was absolutely no reference to any of the Ward factors. As such, it is virtually impossible for this court to determine whether the dismissal was based solely on a single dilatory act or whether the trial court made its determination after considering the relevant factors set forth in Ward.

The COA held that the Circuit Court's failure to make findings of fact required vacatur.

By Michael Stevens

"Coots" notice requirements can be waived, period to advance not extended by information request: YOUNG V. KENTUCKY FARM BUREAU MUT. INS. CO (COA 4/11/2008)

Michael Stevens — 2008-06-25T22:37:48-04:00

YOUNG V. KENTUCKY FARM BUREAU MUT. INS. CO
INSURANCE: Underinsured motorist benefits and notice of subrogationrights - formal requirements of certified mail can be waived by UIM carrier; inaccurate information in notice does not toll period or vitiate the notice; and UIM's request for additional information does not toll the 30-day period
2006-CA-001386
PUBLISHED: REVERSING AND REMANDING
PANEL: HENRY PRESIDING; COMBS, STUMBO CONCUR
UNION COUNTY
DATE RENDERED: 04/11/2008

This appeal addresses the waiver by the underinsured motorist carrier of the notice requirements under KRS 304.39-329(3) regarding subrogation rights and offer of limits (eg., the "Coots" Notice). Trial court granted summary judgment dismissing the claim for UIM benefits stating Kentucky Farm Bureau Mutual Insurance Company was not obligated to pay underinsured motorist (UIM) benefits to the Youngs because they failed to comply with the notification requirements contained in Kentucky Revised Statutes (KRS) 304.39-320(3). COA REVERSE the trial court's award of summary judgment to Farm Bureau, and remanded.

The facts briefly were that KFBM received notice by first class mail of the tender of limits and rights of subrogation. The UIM carrier did not advance the proceeds within the 30 day period and wrote back requesting sufficient or additional documentation. The insureds brought action against underinsured motorist (UIM) carrier after settling tort claim and the Court of Appeals held KFBM had waived any defense based on failure to comply with statutory requirement to send notice of tort settlement by certified or registered mail, and the insured's letter notifying carrier of tort settlement provided reasonable and sufficient notice despite potentially misleading content.

Request by underinsured motorist (UIM) carrier for more documentation does not toll thirty-day limitations period for carrier to permit insured to settle tort claim or advance settlement amount.

The letter from the claimant's attorney contained inaccurate information as to the amount of the settlement and may have been grammatically incorrect, it did reference the statute and provide notice. There was no evidence of intent to mislead or bad faith by the attorney writing the letter. Insured's letter with potentially misleading content that insured would receive $100,000 from proceeds of tort settlement provided reasonable and sufficient notice to underinsured motorist (UIM) carrier, and, thus, it was required to consent to settlement or advance settlement amount within thirty days, even though the settlement amount included $25,000 unrelated to tortfeasor's liability policy; due diligence and a telephone call would have resolved the discrepancy, the discrepancy was not decisive to carrier's decision, and the letter did not prejudice the carrier.

By Michael Stevens

Multiple issues in medical negligence case re: specialists standard of care, mention of health insurance not violate KRE 411, and production of documents prepared by doc to testify: BARKMAN V. OVERSTREET, M.D. (COA 4/11/2008)

Michael Stevens — 2008-06-25T22:35:44-04:00

BARKMAN V. OVERSTREET, M.D.
MEDICAL NEGLIGENCE: Standard of care is based upon the physician's specialty of practice.
MISTRIAL MOTION: Mention of health insurance as opposed to liability insurance as prohibited by KRE 411 is not grounds for mistrial
EVIDENCE: Document prepared by expert witness but not read or relied upon by him to testify is not to be produced to counsel on grounds of past recollection recorded or present memory refreshed
2006-CA-001279
PUBLISHED: AFFIRMING
PANEL: MOORE PRESIDING; ACREE, KELLER CONCUR
BOYLE COUNTY
DATE RENDERED: 04/11/2008

The patient suffered permanent paralysis of all four limbs after an automobile crash and brought a claim for medical malpractice against her treating internal medicine doctor who treated her at the hospital. The jury returned a verdict in favor of the physician, and the patient/Barkman argued on appeal that the trial court used the wrong standard of care in the jury instructions, erred in not granting a mistrial when Overstreet (the doctor) mentioned insurance during his testimony and erred when it denied Barkman's request to produce a document prepared by Overstreet in anticipation of litigation. Finding no error, the COA affirmed.

With regard to the standard of care, the COA stated physician had a duty, in care and treatment of patient, to exercise that degree of care and skill expected of a reasonable and prudent internal-medicine physician acting under the same or similar circumstances rejecting the proposed instruction which would have used language regarding emergency care (eg., "exercise that degree of care and skill expected of a reasonably competent physician specializing in the care and treatment of emergency patients acting under similar circumstances"). Relying upon SCOKY precedent, the COA stated “[i]t is our conclusion that the jury should be instructed that the defendant was under a duty to use that degree of care and skill which is expected of a reasonably competent practioner [sic] in the same class to which he belongs, acting in the same or similar circumstances.”

"Insurance" was mentioned at trial by the defendant doctor and the trial court overruled the motion for mistrial and refused to give an admonitory instruction. The exchange was:

Barkman's attorney: OK, so you are saying that you just made up this loss of consciousness?

Dr. Overstreet: I didn't make it up. I didn't make it up. But, uh, you know, the insurance companies and you guys are the ones that force us into these pigeon holes.

Under KRE 411 "Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness."

The COA then parsed the words used by Dr. Overstreet and noted the precepts behind KRE 411 - "First, the rule, obviously, applies only to liability insurance. Second, the rule only prohibits liability insurance evidence when it is offered regarding the issue of whether or not a party acted negligently or wrongly. Third, the rule does not prohibit evidence about liability insurance if it is offered for other purposes. Consequently, KRE 411 only applies to Overstreet's testimony if he was referring to liability insurance and if he was referring to such insurance to comment upon whether a party to the litigation had somehow acted negligently." "Placing Overstreet's remark into its proper context, it becomes apparent that Overstreet was referring to health insurance not liability insurance. Because KRE 411 applies only to liability insurance, we conclude the trial court did not abuse its discretion when it denied Barkman's motion for a mistrial and her request for an admonition."

At trial, the plaintiff called the treating Dr. Overstreet to testify. Overstreet had several documents with him to refresh his memory, to include a timeline prepared by him. Plaintiff's counsel examined this timeline and a copy was attached to the record to be reviewed in camera by the court. No objection was made until 8 days later, when plaintiff's counsel wished to examine the timeline document. The COA then brushed aside the different positions of counsel regarding the document as past recollection recorded versus present memory refreshed by stating "neither concept applies to this present case. After reviewing the record of Overstreet's testimony, we find that when Overstreet initially took the stand, he had the document in question with him. However, he did not review it while on the stand nor did he refer to it during his testimony. In short, Overstreet did not use the document at trial. Accordingly, Barkman was not entitled to review the document under the concept of present memory refreshed or past recollection recorded."

Digested by Michael Stevens

SCOTUS: KENTUCKY RETIREMENT SYSTEM V. EEOC (SCOTUS 6/19/2008)

Michael Stevens — 2008-06-22T09:12:33-04:00

From SCOTUS WIKI is the following on SCOTUS decision holding state's retirement sytem in Kentucky does not discriminate against older workers. Link to their blog post also follows:

KRS v. EEOC at SCOTUS Wiki.
Decision

LAWWIRE: April 4, 2008 - KENTUCKY COURT OF APPEALS DECISIONS (2008:17)

Michael Stevens — 2008-06-21T22:55:41-04:00

April 4, 2008 - KENTUCKY COURT OF APPEALS DECISIONS (2008:17)

HTML Version of the LawWire - Published and Nonpublished decisions
PDF Version of the LawWire
COA Argument Calendars
SCOKY Argument Calendars
Published decisions are digested below with links to full text, but the "not to be published" can be found in the minutes (by name, court, judges, decision, number, county, and LINK to full text)
MINUTES from AOC for this week saved at our site and click here for the AOC's Official Minutes [which is provided for backup purposes]
25 rendered decisions
- Nos. 411--435
- 1 published decision

Negligent misrepresentation claim in purchase of "service credit" against KERS not recognized at time of BOC claim: BOARD OF TRUSTEES OF KENTUCKY RETIREMENT SYSTEMS V. COMMONWEALTH OF KENTUCKY (COA 4/4/08)

Michael Stevens — 2008-06-21T22:52:14-04:00

BOARD OF TRUSTEES OF KENTUCKY RETIREMENT SYSTEMS V. COMMONWEALTH OF KENTUCKY
BOARD OF CLAIMS: Negligent misrepresentation claim, sovereign immunity, and exhaustion of administrative remedies for purchasing retirement through KERS
Commonwealth of Kentucky
PUBLISHED: REVERSING
PANEL: MOORE PRESIDING; ACREE CONCURS; COMBS DISSENTS FILING SEPARATE OPINION
COUNTY: FRANKLIN
Date: 4/4/2008

This appeal centers around Vicki Knable's complaint filed with the Board of Claims in April 2005 against KERS regarding the purchase of “service credit” or “service.”

The purpose of purchasing service is to fund KERS for employer and employee retirement contributions that would have been paid over an employee's term of employment, so that the employee will be credited with years of service for determining eligibility for retirement. KRS 61.525(2)(b) allows a person who rejects membership to subsequently elect to become a member of KERS and was amended in 2004 to provide that purchases of service credit can only be made by members who are vested or have at least sixty months of service at the time of the purchase if they are under the age of sixty five. Knable fits into the latter category.

Knable believed that only past service fitting into this category had to be purchased by July 12 and thought the deadline did not apply to her so that she did not purchase any past service prior to the deadline.

After July 2004, when Knable attempted to purchase past service, KERS refused her request because she was not vested as she had not been a member of KERS for sixty months. This appeal followed (as well as a Board of Claims action).

Knable contends KERS' failure to honor the language in the May 2004 newsletter forced her to wait until she was a member for sixty months before allowing her to purchase any past service. Knable calculated that this would cause her to spend an extra $90,000.00 in order to purchase the past service that she wanted to buy, thereby, causing her damage. KERS moved to dismiss the BOC action pursuant to KRS 44.070 claiming the BOC only has jurisdiction over claims in which a person has suffered either personal injury or property damage as the result of negligence on the part of the Commonwealth.

COA ruled that KERS did not have to exhaust its administrative remedies before the BOC prior to filing its declaratory judgment action in that it is not necessary to have previously exhausted administrative remedies if the only issue being raised is subject matter jurisdiction, which is a legal question not dependent upon disputed facts.

The doctrine of exhaustion of administrative remedies defined as the “'proper judicial administration mandates judicial deference until after exhaustion of all viable remedies before the agency vested with primary jurisdiction over the matter.'”

There are two exceptions to the general and often relied upon rule that to appeal an agency's decision, one must previously exhaust all administrative remedies: 1) where a regulation is void on its face; or 2) where continuation of the administrative process would be an exercise in futility. The latter exception applies “when a complaint 'raises an issue of jurisdiction as a mere legal question, not dependent upon disputed facts, so that an administrative denial of the relief sought would be clearly arbitrary.'”

As a general rule, state agencies, carrying out integral state functions, have sovereign immunity. Waiver of this immunity is a matter of legislative grace.

COA held further that any construction of other statutes to result in a waiver of immunity which differs from the language of the Board of Claims Act is untenable. In various places throughout the Board of Claims Act, waiver of immunity is alluded to and in every instance an express waiver is required.

Accordingly, sovereign immunity must be expressly waived by the General Assembly. Its waiver cannot be assumed by the courts or even the BOC.

When enacted, the BOC was given exclusive jurisdiction over all claims for the negligent performance of ministerial acts by the Commonwealth or its agencies. The rub in the case at hand is obviously whether this jurisdiction includes negligent misrepresentation. BOC does not have jurisdiction over Knable's claim which is one of negligent misrepresentation and which was not adopted by the Kentucky Supreme Court until 2004 in Presnell Construction Managers, Inc. v. EH Construction, LLC, 134 S.W.3d 575 (Ky. 2004). Because negligent misrepresentation, which has elements separate from negligence, was not recognized as a tort at the time KRS 44.072 was enacted, and the General Assembly's not having expressly waived sovereign immunity to this tort after its adoption by the Kentucky Supreme Court, the BOC did not have jurisdiction over Knable's claim.

Accordingly, the BOC's order to the contrary is void, and the KERS' action for declaratory action was properly taken having raised jurisdiction as a legal question. COA reversed the circuit court, and remanded this case for entry of judgment consistent with this opinion.

Digested by Michael Stevens

Minutes for Kentucky Court of Appeals for June 20, 2008 (COA) (2008:31)

Michael Stevens — 2008-06-20T22:32:37-04:00

Click here for PDF copy of Minutes posted at AOC with links to each published and non-published decision this week.
34 rendered decisions - Numbered 690-723
3 published - 701; 703; 710

Minutes for Kentucky Supreme Court for JUNE 19, 2008 (2008:30)

Michael Stevens — 2008-06-20T18:07:33-04:00

Click here for minutes at AOC with links to full text of each decision
23 rendered decisions: 122-144
13 published (122-134)
1 disciplinary matters
5 of 32 motions granted discretionary review - 15.6% grant rate
Minutes List of all published and nonpublished SCOKY decisions with links to the full text of the decision posted at web site plus orders regarding dismissals, extraordinary writs, discretionary review.

Minutes for Kentucky Court of Appeals for June 13, 2008 (COA) (2008:29)

Michael Stevens — 2008-06-15T23:38:44-04:00

Click here for PDF copy of Minutes posted at AOC with links to each published and non-published decision this week.
19 rendered decisions - Numbered 671-689
9 published - 672; 673; 674; 675; 677; 683; 684; 686; 687
As of the time of this post, the links to the decisions were not working.

May 2008 Supreme Court of Kentucky Oral Arguments (SCOKY) for June 11, 12, 13, 2008

Michael Stevens — 2008-06-12T20:58:57-04:00

Appellate briefs are posted at the Northern Kentucky University, Salmon P. Chase College of Law. Click here.

For Kentucky Supreme Court LIVE arguments, click here on date and time of argument.

June 2008 Oral Argument calendar - click here

WEDNESDAY, JUNE 11, 2008

9:00 a.m. COMMONWEALTH OF KENTUCKY V. DAVIDSON
(2006-SC-180-DG)
"Criminal Law. Double Jeopardy. Whether the retrial of a defendant is precluded if a conviction has been reversed on appeal due to an error in instructions where the evidence was insufficient to sustain a conviction on the instructions that had been given but there was sufficient evidence to support a conviction if proper instructions had been given." Discretionary Review granted 9/13/2006
Knox Circuit Court, Judge Lewis B. Hopper
For Movant: Jeffrey A. Cross
For Respondent: Shelly R. Fears
(Note: Justice Minton and Justice Schroder are recused --
Special Justices R. Michael Sullivan and Joy A. Moore sitting)

Appellant's Brief

Appellee's Brief

Appellant's Reply Brief

10:00 a.m. GASKILL V. ROBBINS (2007-SC-190-DGE) AND
ROBBINS V. GASKILL (2007-SC-207-DGE)
"Dissolution of Marriage. Child Custody. Distribution of Property. Issues include whether there should be a legal distinction between personal goodwill and enterprise goodwill when evaluating a party's professional practice; whether the family court correctly assessed and justly distributed marital property; and whether the court properly awarded custody of the parties' child to the father."
Discretionary Review granted 10/24/2007
Warren Circuit Court, Judge Margaret Ryan Huddleston
For Movant/Respondent (Gaskill): Glen S. Bagby, James E. Keller, J. Robert Lyons, Jr., Betty Reece Herbert, and Brian Pack
For Respondent/Movant (Robbins): David A. Lanphear
(Note: Justice Minton is recused)

Appellant's Brief

Appellee's Brief

Appellant's Reply Brief

11:00 a.m. HUME, ET AL. V. FRANKLIN COUNTY FISCAL COURT, ET AL. (2006-SC-499-DG) AND (CROSS-MOTION) BIZZACK, ET AL. V. HUME, ET AL. (2007-SC-91-DG)
"Zoning. Multiple, successive rezoning petitions applying to the same property. Issues include (1) the propriety of considering a new petition while a ruling on a prior petition is on appeal, (2) whether the principle of res judicata applies to the new petition, (3) law of the case considerations, and (4) whether the record should be reviewed as to whether the Fiscal Court ruling was supported by the evidence." Discretionary Review granted 1/18/2007 and 3/14/2007
Franklin Circuit Court, Judge William L. Graham
For Movants/Cross-Respondents: W. Henry Graddy, IV and Richard V. Murphy
For Respondents (Franklin County Fiscal Court, et al.): Richard M. Sullivan, Edward F. Busch, Rick Eugene Sparks, Scott Alan Johnson
For Respondents/Cross Movants: William M. Lear, Jr., Rena Wiseman, Paul C. Harnice, and Anthony Joseph Phelps
(Note: Justice Minton is recused)

Appellant's Brief

Appellee's Brief

Appellant's Reply Brief

THURSDAY, JUNE 12, 2008

9:00 a.m. BEDINGFIELD V. COMMONWEALTH OF KENTUCKY
(2007-SC-128-DG)
"Criminal Law. CR 60.02. Newly Discovered Evidence. DNA. Issues include whether defendant convicted of rape in 1995 is entitled to new trial on grounds that newly available DNA-testing technology reveals that defendant was not the donor of semen recovered from the victim and her clothing."
Discretionary Review granted 8/15/2007
Fayette Circuit Court, Judge Gary D. Payne
For Movant: Melanie L. Lowe
For Respondent: James Daryl Havey and Traci Courtney Caneer

Appellant's Brief

Appellee's Brief

Appellant's Reply Brief

10:00 a.m. TAYLOR V. COMMONWEALTH OF KENTUCKY
(2006-SC-863-MR)
"Juvenile offender - Murder - 25 year sentence."
Jefferson Circuit Court, Judge Kathleen Voor Montano
For Appellant: Bruce P. Hackett
For Appellee: Paul W. Richwalsky, Jr.

Appellant's Brief

Appellee's Brief

Appellant's Reply Brief

11:00 a.m. EARLY, ET AL. V. OLDHAM COUNTY BOARD OF EDUCATION (2007-SC-8-DG)
"Eminent Domain. Interlocutory Judgment. Notice of Appeal. Issues include whether landowners timely filed notice of appeal from circuit court's interlocutory judgment confirming the condemnor's right to take portions of their properties."
Discretionary Review granted 6/13/2007
Oldham Circuit Court, Judge Karen A. Conrad
For Movants: Stephen B. Early
For Respondent: Alan N. Linker and James Gregory Troutman

Appellant's Brief

Appellee's Brief

Appellant's Reply Brief

FRIDAY, JUNE 13, 2008

9:00 a.m. CHEYENNE RESOURCES, INC., ET AL. V. ELK HORN COAL CORPORATION (2006-SC-721-DG)
"Judgment of Restitution. Prejudgment Interest. Where supersedeas penalty statute was declared unconstitutional, and penalty previously paid was ordered returned by judgment of restitution, the issue is whether prejudgment interest on the amount should be calculated from date penalty was paid, or from date penalty statute was declared unconstitutional." Discretionary Review granted 8/15/2007 Floyd Circuit Court, Judge John David Caudill
For Movants: Bruce E. Cryder and Margaret A. Miller
For Respondent: Maureen D. Carman, William S. Kendrick, Richard C. Ward, and Jeff A. Woods
(Note: Chief Justice Lambert and Justice Scott are recused; Justice Abramson not sitting --
Special Justices Thomas D. Emberton, Gregory L. Monge, and Michael O. McDonald sitting)

Appellant's Brief

Appellee's Brief

10:00 a.m. MCCLENDON V. HODGES (2007-SC-559-DGE)
"Elections. Issues include the proper remedy for fraud found in "walk in" absentee voting for mayor in two of the six city precincts."
Discretionary Review granted 11/15/2007
Monroe Circuit Court, Judge Ron Johnson
For Movant: Daniel T. Taylor, III
For Respondent: David M. Cross
(Note: Justice Abramson is recused)

Appellant's Brief

Appellee's Brief

Appellant's Reply Brief

11:00 A.M. JENKINS V. COMMONWEALTH OF KENTUCKY
(2007-SC-248-DG)
"Criminal Law. Child Sexual Abuse. KRE 702. Issues include application of KRE 702 to the admissibility of proffered expert testimony from a forensic psychologist concerning interview techniques and their impact upon reliability of allegations of child sexual abuse."
Discretionary Review granted 6/13/2007
Woodford Circuit Court, Judge Paul F. Isaacs
For Movant: J. Guthrie True and Samuel Ryan Newcomb
For Respondent: David W. Barr
(Note: Justice Abramson is recused)

Appellant's Brief

Appellee's Brief

Appellant's Reply Brief

COA ARGUMENT CALENDAR: June 2008!

Michael Stevens — 2008-06-08T23:16:53-04:00

Here's a link to the Court of Appeals argument calendar for the month of June 2008. CLICK HERE.

LOCATION: FAYETTE COUNTY CIRCUIT COURT, COURTROOM I, 4TH FLOOR, 120 NORTH LIMESTONE, LEXINGTON, KENTUCKY

DATE: Tuesday, June 03, 2008

9:30 AM STUMBO CAPERTON BUCKINGHAM
MICHAEL WILSON VS COMMONWEALTH OF KENTUCKY 2006CA002194
MOR criminal appeal alleging error in trial court's failure to give tendered instructions on self defense, EED, voluntary intoxication and 4th degree assault.

10:15 AM STUMBO CAPERTON BUCKINGHAM
JAMES HAMILTON VS ELIZABETH HAMILTON 2007CA001423
MOR appeal from post decree order dividing funds held in non-dissolution related litigation; issues include amount of funds to be divided, award of attorney fee and propriety of court in permitting withdrawal of motion.

11:00 AM STUMBO CAPERTON BUCKINGHAM
JOYCE WHITE ET AL. VS CUMBERLAND VALLEY MANOR ET AL. 2008CA000442
MOR appeal from denial of attorney fee to successful litigant in medical fee dispute; issue is standard for imposition of costs.

LOCATION: COURT OF APPEALS COURTROOM, 360 DEMOCRAT DRIVE, FRANKFORT, KENTUCKY

DATE: Monday, June 09, 2008

9:30 AM CLAYTON VANMETER KNOPF
CSX TRANSPORTATION, INC. VS TERRY WILLIAMS 2006CA002593
Numerous assertions of error, including the trial court’s failure to address the jury’s exposure to publicity during the trial; court’s failure to instruct the jury of federal law; error in admitting and barring evidence; and, the verdict was unsupported by the evidence.

10:15 AM CLAYTON VANMETER KNOPF
KIM HARPER VS NATIONAL HEALTH SERVICES ET AL. 2007CA001354
Denial of CR 60.02 relief which followed grant of summary judgment to appellee on claims of negligent hiring and vicarious liability for sexual harassment.

11:00 AM CLAYTON VANMETER KNOPF
JEREMY DOWNS VS EUNICE DOWNS 2007CA000979
Issue of first impression regarding whether a constrictive trust of life insurance proceeds was established for the benefit of a child pursuant to a divorce judgment between the parents of the child.

LOCATION: COURT OF APPEALS COURTROOM, 360 DEMOCRAT DRIVE, FRANKFORT, KENTUCKY

DATE: Wednesday, June 11, 2008

10:00 AM VANMETER CLAYTON KNOPF
LOUISVILLE/JEFFERSON COUNTY METRO ETHICS COMMISSION VS H.J.("BUD") SCHARDEIN ET AL. 2007CA001356
Local government: whether Louisville Metro Government Ethics Code applies to board members and appointed employees of Louisville/Jefferson Metro Sewer District. KRS 65.003.

10:45 AM KNOPF CLAYTON VANMETER
PATRICIA CONWAY ET AL. VS SALT RIVER ELECTRIC COOPERATIVE COOPERATION
2006CA001919
Appeal from order of summary judgment.

1:00 PM ACREE DIXON TAYLOR
STEVIE WORLEY VS COMMONWEALTH OF KENTUCKY 2007CA000175
Criminal: Worley appeals a conviction of manslaughter and sentence of 18 years. The issues are: (1) whether the trial court erred in determining the “castle doctrine“ inapplicable to this case; (2) whether the trial court erred in the manner in which it addressed missing evidence; (3) whether the trial court erred by disallowing the testimony of Worley’s ballistics expert; and (4) whether the trial court erred by disallowing "reverse 404(b)" evidence.

1:45 PM ACREE DIXON TAYLOR
LINDA ANGEL VS METROPOLITAN PROPERTY AND CASUALTY INSURANCE
COMPANY 2007CA001521
Civil; Torts; Damages: Angel appeals the Clark Circuit Court’s order granting partial summary judgment in favor of Metropolitan. The issue is whether a claim for post traumatic stress disorder is a compensable claim under Metropolitan’s UIM coverage and KRS chapter 304.39.

LOCATION: COURT OF APPEALS COURTROOM, 360 DEMOCRAT DRIVE, FRANKFORT, KENTUCKY

DATE: Thursday, June 12, 2008

11:00 AM TAYLOR ACREE DIXON
RICHARD CRAWFORD VS EXTENDED STAY AMERICA, LLC 2007CA001127
Whether circuit court properly entered summary judgment dismissing appellant’s premises liability claim against appellee.

10:15 AM (sic)TAYLOR ACREE DIXON
HERBERT BROOKS VS COMMONWEALTH OF KENTUCKY 2007CA000864
Whether circuit court properly denied appellant’s RCr 11.42 motion.

LOCATION: MONTGOMERY COUNTY CIRCUIT COURTROOM, COURTHOUSE, 1 COURT STREET, MT. STERLING, KENTUCKY

DATE: Thursday, June 12, 2008

10:00 AM COMBS NICKELL GRAVES
LAFE WARD VS COMMONWEALTH OF KENTUCKY 2007CA000753
Challenge to constitutionality of statutes involving DUI and charging wanton murder as void for vagueness.

10:45 AM COMBS NICKELL GRAVES
MARY COLEMAN VS LONES ADAMS 2007CA001586
Property dispute involving parameters of private ownership and use of a public right of way.

LOCATION: COURT OF APPEALS COURTROOM, 360 DEMOCRAT DRIVE, FRANKFORT, KENTUCKY

DATE: Wednesday, June 25, 2008

2:30 PM NICKELL COMBS GRAVES
DANNY RAINS VS MICHAEL PATRICK ET AL. 2007CA000745
Whether trial court properly dismissed alleged oral agreement under statute of frauds.

U.S. 6th Cir. Decisions for Week of Jun 2-6, 2008 (1 Ky cases)

Michael Stevens — 2008-06-08T12:43:42-04:00

U.S. 6th Cir. Decisions for Week of Jun 2-6, 2008 (1 Ky cases) posted.

March 28, 2008 - KENTUCKY COURT OF APPEALS DECISIONS (2008:16)

Michael Stevens — 2008-06-08T12:20:50-04:00

March 28, 2008 - KENTUCKY COURT OF APPEALS DECISIONS (2008:16)

HTML Version of the LawWire - Published and Nonpublished decisions
PDF Version of the LawWire
COA Argument Calendars
SCOKY Argument Calendars
Published decisions are digested below with links to full text, but the "not to be published" can be found in the minutes (by name, court, judges, decision, number, county, and LINK to full text)
MINUTES from AOC for this week saved at our site and click here for the AOC's Official Minutes [which is provided for backup purposes]
22 rendered decisions
- Nos. 389-410
- 5 published decisions

Conditional use permit (restaurant or tea room or catering service) and subsequent adoption of ordinance pending moratorium: THE GREATER HARRODSBURG/MERCER COUNTY PLANNING AND ZONING COMM. v. ROMERO (COA 3/28/2008)

Michael Stevens — 2008-06-08T12:12:45-04:00

THE GREATER HARRODSBURG/MERCER COUNTY PLANNING AND ZONING COMM. v. ROMERO
ZONING: Conditional use permit (restaurant or tea room or catering service) and subsequent adoption of ordinance pending moratorium
2006-CA-002623
PUBLISHED: AFFIRMING
PANEL: THOMPSON PRESIDING; BUCKINGHAM, HENRY CONCUR
MERCER COUNTY
DATE RENDERED: 3/28/2008

The Romeros purchased property and prepared to open a bed and breakfast, tearoom and catering service. The property’s zoning permitted bed and breakfasts with a maximum of four rooms as an accessory use. After neighbors complained that the Romeros were operating a restaurant, the Greater Harrodsburg/Mercer County Planning & Zoning Commission (“Commission”) agreed to place a moratorium on tearoom conditional use permits until it adopted a definition for “tearoom.”

Ms. Romero went before the Commission and proposed that her tearoom be operated in two seatings, Monday through Saturday. The Commission then adopted a definition of “tearoom” as a facility open for no more than four hours per day with a capacity to serve a maximum of twenty people per seating. The Mercer County Fiscal Court enacted an ordinance requiring that the operator of a bed and breakfast planning to have a tearoom or cater special events apply to the Board of Adjustments (“Board”) for a conditional use permit.

The Romeros applied to the Board for a permit for additional uses of the property, including catering private parties, Sunday brunches, Sunday special events and a gift shop. The Board found that because the Romeros had engaged in prohibited uses after adoption of the ordinance, the entire operation of the property fell within the ambit of the ordinance. It then imposed several severe restrictions on the Romeros’ use of the property, including restrictions on parking, hours, days open, and number of special events. The Romeros filed a declaratory judgment action requesting a determination that the imposed restrictions on the tearoom and catering of special events were illegally imposed because those uses existed prior to the adoption of the ordinance. The circuit court granted summary judgment to the Romeros finding that their use of the property was a non-conforming use and the ordinance did not apply.

The court of appeals affirmed, holding that the subsequent adoption of the ordinance did not apply to the Romeros’ property because there was no transformation of the inherent nature of the pre-existing primary use.

Digest by Sam Hinkle