Recent Firm Highlights & News
BEHR PROPERTIES, LLC, THE BEER TRAPPE, INC. AND BEHR ENTERPRISES, LLC V. ASHLAND PROPERTIES, ET AL., 2017-CA-1155, September 20, 2017. The Court of Appeals denied Behr’s request to dissolve the injunction entered in favor of Ashland Properties and other defendants by Judge Goodwine in the Fayette Circuit Court. The injunction prohibits Behr and the other plaintiffs from trespassing on the defendants’ property. See the Court of Appeals Order Denying Motion for Interlocutory Relief; and see the Fayette Circuit Court’s June 27, 2017, Temporary Injunction.
TALLEY v. PAISLEY, 2016-SC-92-DG, August 24, 2017, Kentucky Supreme Court. In a case concerning a cohabiting, unmarried couple, the Kentucky Supreme Court affirmed the Court of Appeals’ conclusion that a cotenant of real property, including one who holds as joint tenant with right of survivorship, is entitled to contribution from other cotenants with respect to his or her payments toward liens on the property in dividing equity from the sale of the property. See the Opinion of the Court by Justice VanMeter Affirming.
LEXINGTON HERALD LEADER v. UNIVERSITY OF KY – update of the court’s rulings of June 27, 2017. In an action brought by the Lexington Herald-Leader, the Fayette Circuit Court held that the University of Kentucky violated the Kentucky Open Records Act by refusing to disclose documents received and discussed by the University’s Board of Trustees during an ostensibly open “dinner meeting” for which it prepared no agenda, creating the misimpression that the dinner was merely a social event. Although the University attempted to invoke the attorney-client privilege as to a PowerPoint presentation made during that dinner meeting, the Court found that the Board’s decision to receive the report in an open meeting reflected a complete lack of any expectation of confidentiality. The documents pertained to the University’s evaluation of its billing issues that arose during its now severed relationship with the Appalachian Heart Center in Hazard, Kentucky. See the Opinion and Order and the Order to place records under seal.
BONVILLAIN v. O’BRYAN, 2016-CA-357, June 23, 2017, Court of Appeals ruling affirming the Fayette Circuit Court. On a matter of first impression, the COA agreed with the attorneys at MGM that an assignment of a right to receive royalties from a copyright is not testamentary in nature, rather is a transfer of a contract right. The formalities of a will are not required to validly transfer the royalty right to be effective at the death of the assignor. Read the ruling.
LEXINGTON RENTAL HOMES v. SAFFERY, 16-CI-424, 4th Division, Fayette Circuit Court, June 5, 2017. The trial court issued an opinion and order and granted summary judgment to the landlord over a lease dispute and amounts owed by the tenant. The ruling included recovery of attorneys’ fees under KRS 383.660 due to the willful breach of the lease. Read the ruling.
ANDOVER GOLF & COUNTRY CLUB LITIGATION: A flurry of litigation commenced in the last 90 days involving the foreclosure by Whitaker Bank of the Andover Golf Course property which includes the clubhouse and pool.
On June 6, 2017, the Fayette Circuit Court granted the request of Ball Homes, Inc. and Lochmere Development Corporation for a Temporary Injunction to require Whitaker Bank, Inc., to maintain the property as a golf course and to operate the course. Read the Temporary Injunction.
The Andover developers have filed a motion for temporary injunction asking the court to order AGCC and Whitaker Bank and any successors, assigns or purchasers to open, operate and properly maintain the golf course and club. Read the April 26, 2017 Motion.
The Andover developers (Ball Homes, Inc. and Lochmere Development Corporation/Troy Thompson) have issued a letter to the Andover residents. Read the April 25, 2017, Letter.
With the Andover entity apparently “handing over” the property to Whitaker in February 2017, Whitaker filed the foreclosure action (read the Complaint) in the Fayette Circuit Court (case #17-CI-640) on February 17, 2017, and quickly obtained an Order of Sale (read the Sale Order with disclosures for the sale). Whitaker appears to be trying to strip off the restriction filed of record in the Fayette County Clerk’s office that requires the property to be continuously used for a golf course by way of a separate Declaration of Rights lawsuit it filed March 15, 2017. (Read case # 17-CI-986) Declaration of Rights Complaint). The original developers of the property (Ball Homes, Inc. and Lochmere Development Corporation/Troy Thompson) moved to intervene in the foreclosure case to protect the development and to enforce the requirement that the golf course be maintained and used as a golf course. They have further challenged Whitaker’s efforts (see Motion to Dismiss) and have also filed a separate action, Fayette Circuit case # 17-CI-1360 (read the Complaint) to enforce the restrictions that require the property to continuously be used for a golf course that includes certain amenities of a clubhouse, restaurant and pool. Matters are moving very quickly in the litigation and literally changing day-to-day.
SEXTON V. BEAN, Kentucky Court of Appeals. Former owner of real property sued to void the deed of conveyance from almost five (5) years earlier alleging that his and his wife’s signatures were forged. In deposition testimony both former owner and wife confirmed signatures were not forged on deed. Trial court granted summary judgment to current owner of real property and further awarded recovery of a portion of her attorneys’ fees and costs incurred in the defense of the action because Plaintiff’s allegations were contrary to his actual testimony. Plaintiff/former owner appealed. The Court of Appeals issued its Opinion Affirming on May 12, 2017, in Sexton v. Bean, 2015-CA-931, Fayette Circuit Court, case # 13-CI-705.
Real Estate/fraud/void deed based on forged signatures
PRIME FINISH, LLC AND CAMEO, LLC V. ITW DELTAR IPAC, USDC Eastern District of KY, 08-cv-438-GFVT, Memorandum Opinion & Order entered May 5, 2017. In a contract dispute arising from the painting of plastic automotive parts, the United States District Court for the Eastern District of Kentucky found that an issue of fact existed as to whether an “early termination fee” provided in the contract constituted a true liquidated damages provision, such that the plaintiff’s recovery would be capped at the amount of the fee, or was intended as compensation solely for the damage caused by early termination. The Court denied the defendant’s motion for partial summary judgment on this basis, permitting the plaintiff to pursue its a claim for the early termination amount as well as actual damages before the jury. Read the Opinion.
AGNICH v TYLER, issued May 5, 2017, case # 2016-CA-653, Kentucky Court of Appeals, to be published, Fayette Circuit Court 13-CI-2538. Same-sex parents shared equal timesharing and joint custody of their autistic twins, and had entered an agreement that they would each remain in the same school district until the children graduated from high school. The twins’ biological mother filed a Motion to relocate with the minor children to another state, and the trial court granted the motion over the non-biological mother’s objection. The Court of Appeals vacated and remanded, finding that no evidence supported the trial court’s conclusion that the children would have better resources if they moved. The Court of Appeals determined that “a finding that the move is in LaDonna’s personal interest is not the same as a conclusion that the children’s interests will be benefited.” Read the Opinion.
GADD V. HENSLEY, 2015-CA-1948 and 2016-CA-164, Garrard Circuit Court, 13-CI-308. The Court of Appeals by Opinion issued March 24, 2017, held that the Garrard Circuit Court erred in holding that deed restrictions prohibited short-term rentals of residences. The circuit court’s had held that inhabitants of short-term rentals of residential property were not “residents” and therefore the use of the property was not for “residential” purposes and was therefore the operation of a business in contravention of the deed’s language. Arguments presented by the parties presented 3 unpublished Kentucky Court of Appeals cases which the circuit court relied upon in its ruling. The Court of Appeals address each of the three unpublished cases but determined that upon review of published caselaw on the interpretation of deed restrictions, and in light of there being no prohibition in the restrictions for renting or leasing the property (for any period of time) and in fact the restrictions allow “for advertising the sale or rental thereof,” and because any ambiguity is construed against the drafter and in favor of free use of the property, “the language of the deed does not prevent Gadd from renting his property on a short-term basis which is any amount of time. On April 7, 2017, the Court of Appeals order the opinion to be published. Read the Order. Read the Opinion. In late April, Hensley filed seeking discretionary review with the Kentucky Supreme Court.
HARVEY V. ROBINSON, 2016-CA-915 & 1073, Fayette Circuit Court, 00-CI-1483. In a March 3, 2017, opinion to-be-published issued by the Kentucky Court of Appeals, the Court held that the standard of review when addressing appeals involving the interpretation of trial court orders, the reviewing court is to give deference to the trial court’s interpretation of its own orders. The case involved the ex-wife returning to divorce court seeking to hold her ex-husband in contempt for failing to comply with an order entered during the divorce proceedings entered some 15 years earlier. She argued that the former husband had failed to comply with the order during the divorce that required him to hand over ownership of significant real estate in a certain condition. After she sold the property for $3.3 million dollars, she argued that the husband’s failure to have the property in a certain condition some 15 years earlier cost her $250,000 of the purchase price. She filed a motion to have her ex-husband in contempt of that order and conveyance from about 15 years earlier. After conducting an evidentiary hearing, the trial court denied her requested relief. She appealed and the Court of Appeals affirmed the trial court’s denial of her requested relief. Read the court’s Opinion.
On February 6, 2017, the insurance defense practice group, led by Don Pisacano, obtained a summary judgment for its client, Kentucky Growers Insurance Company, in Ortiz v. Kentucky Growers Insurance Company, Muhlenberg Circuit Court Action 15-CI-00364. The plaintiffs sought to recover under their homeowners’ policy for a fire loss. However, they misrepresented their ownership interest in the insurance application, as well as the existence of a previous foreclosure and previous cancellation from another insurer, all of which rendered the policy void ab initio. Read the court’s order dismissing KY Growers and order as to other defendants.
FARRIS V. COLUMBIA, 2015-CA-448, KY Court of Appeals, February 3, 2017. The Court of appeals agreed Columbia, the former principal and football coach in Clark County, that Farris’s, the former superintendent’s, appeal was interlocutory and subject to dismissal. Read the court’s Opinion.
BUSCH V. WELLS FARGO HOME MORTGAGE, 16-CV-210-JMH, USDC at Lexington, JANUARY 9, 2017. Busch and his wife filed their lawsuit in the Fayette Circuit Court which was removed by the Defendant to federal court. Thereafter, the Defendant moved to dismissed the case. The court held that the Busches did state a cause of action under the Fair Credit Reporting Act, 15 USC 1681, which provides for recovery of certain damages and attorneys’ fees. Read the court’s Opinion.
ROBERT WEBB V. DAN CUMMINS CHEVROLET-BUICK, INC. 2015-CA-938, Bourbon Circuit Court 15-CI-61, DECEMBER 2016. MGM successfully defended an area car dealer. Webb sued the dealer over his trade in of a vehicle that was more than 10 years old when he traded it in, and he had originally purchased it used. Webb sued the car dealer alleging fraudulent misrepresentation based on statements during the negotiations of the trade in as to whether the vehicle had a “salvage” title. He also sued under the Kentucky Consumer Protection Act (“CPA”). Upon an immediate motion to dismiss the case, the trial court dismissed Webb’s claims ruling that Webb could not show both “that the defendant made a false statement and did so knowingly or recklessly.” The Court of Appeals affirmed. Opinion, p. 6. “On the contrary, all evidence in the record indicates that the [car dealer’s] representation was truthful.” Id. The Court of Appeals further held that any purported “reliance” could not have been “reasonable” because the CarFax report presented to Webb during the negotiations, a “public service” concerning Webb’s own vehicle, revealed the salvage title brand. “While there may be no duty to investigate public records, one entering into a contract must exercise ordinary care for his protection.” Id. at p. 8. Moreover, the car dealer’s statement as to the value of the trade-in was an opinion and was therefore not actionable as fraud. Id. at 8-9. Finally, the Court of Appeals held that there were no unfair, false, misleading or deceptive acts in the negotiations between the parties and therefore the claim under the CPA was properly dismissed. Id. at p. 9. See Opinion here.
DECEMBER 2016: Don Pisacano successfully tried a Landlord Tenant Case in Bourbon County Circuit Court and obtained a defense verdict for the farm owner/landlord in a premises liability personal injury claim arising from a trip and fall on an alleged defective cattle guard. Plaintiff was seeking damages for a fractured ankle and subsequent infection (osteomyelitis) that occurred when he fell into/on an open and obvious cattle guard. The jury found for the landowner and the Plaintiff was awarded nothing. See a copy of the Jury Verdict.
NOVEMBER 2016: On behalf of Kentucky Growers Insurance, Don Pisacano obtained summary judgment against a national mortgage company’s claim for proceeds arising from a foreclosure action and subsequent fire loss. Papastefanou v. Kentucky Growers, et al., Warren Circuit Court, 13-CI-1440 (November 23, 2016).
FEDERAL UPDATE: FEDERAL WAGE-AND-HOUR RULES CHANGES ON HOLD –
December 2016: On December 1, 2016, the DOL appealed the nationwide injunction. The Fifth Circuit Court of Appeals issued an order on December 8, 2016, expediting the review of the nationwide injunction that prohibited the implementation of the DOL’s new regulations on overtime. It appears that briefing will be completed in January 2017 and the matter will be set for arguments promptly thereafter.
November 22, 2016: A Texas District Judge granted an injunction that prohibited the implementation of the DOL’s new regulations expanding overtime saying it improperly created a de-facto salary test under the Fair Labor Standards Act.
October 28, 2016: Twenty-one states, as well as numerous business groups, have sued the United States Department of Labor (“DOL”) in order to challenge new regulations that will broaden that the number of workers potentially eligible for overtime pay under the federal Fair Labor Standards Act (“FLSA”). The new regulations, effective beginning December 1, 2016, provide that full-time workers making a yearly salary of less than $47,476 cannot satisfy the “salary” portion of the test that governs whether an employee may be treated as “exempt” from overtime requirements. This means that an employee whose duties qualify as administrative or executive and who would otherwise qualify as exempt may nevertheless be entitled to overtime pay if they make more than $47,476 in a year. The lawsuits allege that the change exceeds the rule-making authority granted to the DOL. The states that have brought suit additionally argue that the DOL has violated the Tenth Amendment by interfering with the manner in which state government employees are paid. The plaintiffs have asked the Court for an injunction, which would prevent the new rule from going into effect until after the lawsuits are resolved. More information about the rule at issue in the lawsuits may be found at: https://www.dol.gov/featured/overtime
Background: August 2016: An important change in the federal wage-and-hour rules becomes effective on December 1, 2016. The new rule recently promulgated by the Department of Labor will increase the salary level from $455 per week ($23,660 annually) to $913 per week (or $47,476 annually). Additional changes were made to the salary rules applicable to the “highly compensated employee” exemption, and the rule provides for automatic updates to the salary and compensation levels every three years. No changes have been made to the “duties test.” Read more.
HERALD LEADER OPEN RECORDS REQUEST TO UNIVERSITY OF KENTUCKY, DECEMBER 2016: The New York Times published an article on December 2, 2016, addressing the pending litigation involving the Kentucky Kernal Open Records request. See the article.
HERALD LEADER ATTORNEY GENERAL’S OPINION AUGUST 2016: In the newest round of efforts to shed light on the activities of UK, the Attorney General issued an August 31, 2016 (16-ORD-193), opinion addressing the refusal of UK to provide documents in response to a Herald Leader Open Records request for matters involving the Hazard cardiology practice acquired by UK and the expenses and fees paid by UK or KMSF to their lawyer and law firm Sheppard Mullin since 2013. The AG determined that UK’s refusal to provide records for in camera inspection by the AG to consider UK’s asserted exemptions violated the Open Records Act.
VEITCH v. PUBLIC PROTECTION CABINET, AUGUST 2016 UPDATE: The Franklin Circuit Court has again ruled in favor of John Veitch in his claims against the Kentucky Horse Racing Commission related to penalties imposed on him as Chief State Steward for his actions at the LIFE AT TEN race. In its August 23, 2016, Opinion and Order, the Court reverses and remands the most recent effort by KHRC to impose a 9 month suspension penalty because the penalty has not been justified by KHRC.
HERALD LEADER ATTORNEY GENERAL’S OPINION JULY 2016: We are pleased to have had the opportunity to assist the Herald-Leader in its commitment to the transparency in government that is protected by both the Open Meetings and Open Records Acts. The information presented at the Trustees’ dinner meeting directly concerned the University’s management of funds, and so is exactly the type of information that our legislature recognizes that the citizens of the Commonwealth must receive in order to hold their public entities accountable. Although we have not yet received a response to our request to the Attorney General for the documents presented during the meeting, we are optimistic that they will soon be provided to the Herald-Leader. We also believe that, because the University chose to have an open meeting, Kentucky’s Open Meetings Act requires that minutes be prepared for the meeting, and those minutes must now be provided. The Attorney General’s Opinion reflects his agreement. Read the article here. UK reports as of August 9, 2016, in the Lexington Herald Leader that it intends to appeal the AG’s decision.
NURSING HOME CLAIMS: October 28, 2016: The federal agency overseeing Medicare and Medicaid services has issued a rule barring any nursing home that receives federal funding from requiring residents to enter pre-dispute arbitration agreements. Such agreements have long been used by nursing homes to force patients and their families to pursue claims such as elder abuse and wrongful death through the private system of arbitration rather than in court. Although nursing homes and patients may still enter arbitration agreements on a voluntary basis at the time a dispute arises, those agreements must be clearly explained to residents. This major change in policy is viewed as an important step in protecting the rights of nursing home patients. More information about the new rule is available at:
NURSING HOME WRONGFUL DEATH FILING JULY 2016: Miller, Griffin & Marks, PSC filed an action in the Madison Circuit Court in July 2016 alleging the wrongful death of Donald Shelton. Named in the suit as defendant IS Madison Health and Rehabilitation Center in Richmond, Kentucky. Read more.
RECENT LITIGATION MATTER: Litigation with a flooding neighbor: Our litigators address a variety of issues through trial and appeal. In a case of an uphill neighbor focusing and directing ‘unnatural’ water flow on the downhill neighbor, a jury awarded $50,000 in compensatory damages and $75,000 in punitive damages. See Vescio v. Darnell, (Fayette Circuit Court, 99-CI-2531, The verdict was affirmed by the Kentucky Court of Appeals in Case 2013-CA-189, rendered January 29, 2016. The appellate court further ordered the case remanded to the trial court with directions to enjoin the uphill neighbor by requiring that all the holes in their brick wall be “plugged” to prevent further intentional flooding of the downhill neighbor.
RECENT FAMILY LAW MATTER: Our Family Law Group is active through all levels of litigation. In what appears to be a case of first impression in Kentucky, in December 2015 they successfully reversed the lower courts’ rulings related to a conflict between an IRA beneficiary form that was not changed as required by the terms of divorce and the Divorce Decree. Sadler v. Van Buskirk, 2013-SC-809-DG, Kentucky Supreme Court, December 17, 2015.