Thomas W. Miller joined the firm in 1973 after graduating from the University of Kentucky College of Law, from which he graduated with highest distinction. Tom was also elected to the Order of the Coif, and served on the Kentucky Law Journal. Tom is largely engaged in trial and commercial practice, and is a frequent lecturer and author on equine and evidence issues. He is licensed to practice in Kentucky, Tennessee and Oklahoma.
Talley v. Paisley (2016-SC-92-DG, Fayette Circuit Court, 13-CI-1952)
On August 24, 2017, 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.August 24, 2017 Filed Under: Litigation Transactional Law
Lexington Herald Leader v. University of Kentucky
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.
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.
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.
June 27, 2017 Filed Under: Litigation Transactional Law
Bonvillain v. O’Bryan (2016-CA-357, Fayette Circuit Court, 15-CI-4186)
On June 23, 2017, the Court of Appeals affirmed 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.June 23, 2017 Filed Under: Litigation Transactional Law
Agnich v. Tyler (2016-CA-653, 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.May 5, 2017 Filed Under: Litigation Family Law
Prime Finish, LLC and Cameo, LLC v. ITW Deltar IPAC (08-CV-438-GFVT USDC Eastern District of KY)
The Court entered its Memorandum Opinion & Order 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.May 5, 2017 Filed Under: Litigation Transactional Law
Farris v. Columbia (2015-CA-448, KY Court of Appeals)
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 February 3, 2017, Opinion.February 3, 2017 Filed Under: Litigation Employment Law
Busch v. Wells Fargo Home Mortgage (16-CV-210-JMH, USDC at Lexington)
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 January 9, 2017 Opinion.January 9, 2017 Filed Under: Litigation Transactional Law
Robert Webb v. Dan Cummins Chevrolet-Buick, Inc. (2015-CA-938, Bourbon Circuit Court 15-CI-61)
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 the December 16, 2016 Opinion here.December 1, 2016 Filed Under: Litigation Transactional Law
Veithch v. Public Protection Cabinet
The Franklin Circuit Court 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.August 23, 2016 Filed Under: Litigation Transactional Law Employment Law
Ruth Ann Sadler v. Barbara Lois Van Buskirk (2013-SC-000809-DG, December 17, 2015)
This case involved a conflict between the beneficiary listing on an IRA as compared to the Property Settlement Agreement terms entered into by the parties. In the divorce, Van Buskirk agreed that she would not receive an of the IRA funds upon the death of the IRA’s owner, her former husband. However, when former husband passed away, he had not changed the IRA beneficiary form which still listed the ex-wife. MGM argued the case of apparent first impression to the Kentucky Supreme Court in March 2015 and in its renderings in December 2015, the Court held in favor of Sadler to make clear that the Van Buskirk Property Settlement Agreement and Divorce Decree controlled over the stale IRA form.
Family law/IRA beneficiary/Divorce Decree/failure to comply with divorce decreeLitigation Transactional Law Family Law
Frank D. Marcum v. Hon. E. Scorsone, Judge (2014-SC-172-MR Fayette Circuit April 2, 2015)
The trial court disqualified the firm from continuing to represent certain shareholders because it had previously represented the Board of the entity of which they are shareholders. A writ of prohibition was requested from the Court of Appeals to prevent the enforcement of the trial court’s disqualification order which was denied. The Supreme Court accepted discretionary review and concluded that the trial court had applied the wrong standard of review, reversed the Court of Appeals and directed the writ of prohibition be granted.
Disqualification of counsel/ Rules of Professional Conduct/Writ of prohibition/ shareholders derivative suit/ appearance of improprietyLitigation
Veitch v. Public Protection Cabinet, et al., Franklin Circuit Court, 13-CI-895 (November 26, 2014)
Chief State Steward of the Kentucky Horse Racing Commission was terminated. The termination was upheld by the Kentucky Personnel Board. On judicial appeal of agency action, the Franklin Circuit Court reversed the termination, reinstated the Chief Steward with recovery of back pay.
Personnel board/chief state steward/racing commissionEquine Law Litigation Employment Law
Gulf Coast Farms, LLC, et al. v. Fifth Third Bank Fayette Circuit Court 11-CI-88
Fifth Third Bank sought to enforce banking agreements that included pledges of equine collateral. Gulf Coast attempted to prove that the terms of the agreement with the lender were different than contained within the documents executed by the parties. The trial court ruled in favor of Fifth Third by Opinion and Partial Summary Judgment entered on July 30, 2013. Gulf Coast appealed and the Kentucky Court of Appeals affirmed on April 19, 2013, in cases 2011-CA-965/1575/491, the trial court’s rulings in favor of Fifth Third.
In a related case, the US District Court ruled in favor of Fifth Third in its pursuit of proceeds generated from the sale of a share of a stallion, DISTORTED HUMOR that was pledged as collateral and the US Court of Appeals (case 13-6184) for the Sixth Circuit affirmed on July 23, 2014.
Equine collateral/four corners/ambiguityJuly 23, 2014 Filed Under: Equine Law Litigation Transactional Law
Baptist Physicians Lexington, Inc. v. The New Lexington Clinic, PSC, 2012-SC-242 (December 19, 2013)
The Kentucky Supreme Court clarified that the corporate fiduciary duty statute defined the duties of a director when acting in his official capacity on behalf of the corporation, but did not displace fiduciary duties when he was acting in his individual capacity and not in a corporate one. Thus, common law fiduciary duties survived enactment of statutes defining duties owed when acting on behalf of the corporation.
Fiduciary duties/corporations/ board member/officer/KRS 271B.8-300/pleadingLitigation Transactional Law Employment Law
Michael Joseph Flick v The Estate of Christina Wittich (2010-SC-664-DG, Fayette Circuit Court April 23, 2013)
Thomas W. Miller, attorney at Miller, Griffin & Marks, PSC, was appointed by Governor Steve Beshear as Special Justice to the Kentucky Supreme Court for this case that addressed appellate jurisdiction issues in a wrongful death action.
Appellate jurisdiction/ co-administrators/ fair notice of the appeal/ failure to name proper partyLitigation
James Lauffer v. Thoro-Graph, Inc. and Jerry Brown,Johnson Circuit Court 09-CI-157 (4/12/2010)
In the absence of an agreement, a horse purchaser adviser is limited to recovering 5% of the purchase price.Equine Law Litigation
Use of Repositories: A Buyer’s Perspective
Read the article.January 1, 2010 Filed Under: Equine Law
Crawford v. Lexington-Fayette Urban County Government (2008 WL 2885230 (E.D.Ky.))
Justin Crawford, a Sergeant in the Custody Bureau at the Fayette County Detention Center, came to Miller, Griffin & Marks with a complaint: the Detention Center administrators routinely refused to allow officers to take legally required meal and rest breaks, were not fairly compensating them for the true number of hours worked, and were retaliating against the few employees who dared to speak out. In a work environment which requires daily contact with dangerous individuals, the employees’ inability to enjoy meaningful meal and rest breaks away from inmates, alarms and other work responsibilities was particularly troublesome. Sergeant Crawford explained that many other employees had the same complaints, but were afraid of the consequences of publicizing their views. Thereafter, seven other Detention Center officers agreed to join him as lead plaintiffs in a class collective action originally filed in the Fayette Circuit Court, but ultimately resolved in the United States District Court for the Eastern District of Kentucky. Sergeant Crawford was eventually joined by 316 other current and former Detention Center employees, all of whom alleged that the LFUCG had failed to comply with federal and state wage and hour laws. After more than two years of intense litigation, which included the taking and defending of almost one hundred depositions and extensive motion practice before the Court, Miller, Griffin & Marks was able to negotiate a fair settlement on behalf of the class. The Detention Center plaintiffs were finally paid the wages to which they were entitled. Even more importantly, the settlement included provisions to protect and benefit all Detention Center employees, present and future. The employees were assured of sufficient time in which to eat their meals, and an accurate method of reporting hours worked. Miller, Griffin & Marks is proud to have represented the Detention Center employees who serve our community, and remains committed to the values underlying the Fair Labor Standards Act.Litigation Employment Law
Litigating the Horse Transportation Claim
Read the article.January 1, 2007 Filed Under: Equine Law Litigation
An Overview of Evidentiary Issues and Estate Disputes
Read the article.January 1, 2005 Filed Under: Transactional Law
SKS Merch, LLC, Toby Keith, et al. v. Mike Barry, Lou Black, Louie Catone 233 F.Supp.2d 841, 65 U.S. (2002)
In a case of significance to the music industry, music artist, Toby Keith, was granted a federal nationwide injunction under the Lanham Trade-Mark Act against sellers of bootleg merchandise. Read more ›January 1, 2002 Filed Under: Litigation
Thomas v. Hodge, 897 FSupp 980 (USDC WDKY 1995)
Saddlehorse owners from California pursued claims for an accounting and breaches of fiduciary duty against their Kentucky-based agent who boarded, trained and showed their saddlebred horses. The United States District Court at Louisville ruled on a pretrial motion for an accounting and held that the agent was not required to account for expenses accrued when the agent was acting as vendor of services to principals and further had no duty to account for transactions in which he did not act as agent and did not receive a commission, distinguishing between horse sales transactions (i.e., disposition of principal’s property) and boarding and training expenses (merely rendering bills for payment). The Court made clear that an agency is a fiduciary relationship resulting from manifestation of consent by one person, the principal, to another, the agent, that the agent may act on the principal’s behalf and subject to his control; and consent by the agent to so act.
Principal/agent/equine industry/show horses/American Saddlebred Horse Association/accountingEquine Law Litigation
Chernick v. Fasig Tipton, 703 S.W.2d 885 (1986)
Sales companies have a duty to insure the accuracy of information supplied to buyers. This case was later cited in the adoption of negligent misrepresentation as a cause of action in Kentucky.Equine Law Litigation Transactional Law