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.
Ball Homes, Inc. & Lochmere Development Company v. Andover Golf & Country Club, Inc. and Whitaker Bank (2017-CA-885, 1038& 1047), Fayette Circuit Court 17-CI-640, 986 & 1360
ANDOVER GOLF & COUNTRY CLUB
LITIGATION: A flurry of litigation commenced April 2017 involving the foreclosure by Whitaker Bank of the Andover Golf Course property which includes the clubhouse and pool. With the Andover entity apparently "handing over" the property to Whitaker in February 2017, Whitaker filed a 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 challenged Whitaker's efforts (see Motion to Dismiss
) and 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.
The Developers filed a motion for temporary injunction asking the court to order Andover Golf and Country Club 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
. Numerous homeowners' associations intervened in the cases by the time of the injunction hearing.
On June 6, 2017, the Fayette Circuit Court granted the request of the Developers for a Temporary Injunction to require Whitaker Bank to maintain the property as a golf course and to operate the course. Read the Temporary Injunction
. In June 2017, the Developers filed a motion with the Court pof Appeals to challenge the $1 Million Bond set by the trial judge. Whitaker filed a similar motion challenging the injunction and seeking to dissolve it. Those motions remain pending with the Court of Appeals.
During the litigation the Developers issued letters to the Andover residents fully explaining their position and intent. Read the April 25, 2017, Letter
. Read the July 25, 2017
The homeowners' associations then surprisingly challenged the standing of the Developers and argued that the Developers had no right to enforce the golf course restriction, nor any legal duty or obligation to enforce the restriction. Whitaker joined in the standing challenge and further argued that the restriction of record is not enforceable. As a result of the associations taking a position adverse to the Developers, several individual property owners intervened in the actions to express and protect their rights and position which is consistent with the position and arguments of the Developers. In an Opinion and Order entered September 20, 2017, the trial court ruled that the Developers did not have standing to enforce the restriction even though the restriction is specifically for the benefit of and in the name of the Developers. Read the Opinion
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Behr Properties, LLC, The Beer Trappe, Inc. and Behr Enterprises, LLC v. Ashland Properties, et al. (2017-CA-1155, 17-CI-2156, Fayette Circuit Court)
The Behr entities filed an action against seeking an immediate injunction to validate its trespass through another business property. The trial court denied the request and granted the property owner's request by cross motion for injunction prohibiting the trespass. Behr appealed the temporary injunction to the Court of Appeals under CR 65.07. On September 20, 2017, the Court of Appeals denied Behr's request to dissolve the injunction entered in favor of Ashland Properties and other defendants. 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
Ashland Properties is seeking sanctions against Behr based upon the failure to comply with the Court's Temporary Injunction.
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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.
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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.
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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
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Lexington Rental Homes, LLC v. Saffery (2017-CA-1114, 16-CI-4242, Fayette Circuit Court)
On 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.
In July 2017, the tenant appealed to the Court of Appeals. The appeal remains pending.
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Sexton v. Bean (2015-CA-931, Fayette Circuit Court, 13-CI-705)
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
. Read the trial court's Order and Judgment ›
Real Estate/fraud/void deed based on forged signatures
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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
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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
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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 granted discretionary review on August __, 2017, and Gadd thereafter filed a cross motion for discretionary review.
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