Arkansas Legislature Passes "10" Commandments Bill – Unintended Indictment of Arkansas Education System?

Arkansas Legislature Passes "10" Commandments Bill –

Unintended Indictment of Arkansas Education System?

            As has been not as widely reported as was the passage and then the amendment of the Arkansas Religious Freedom Restoration Act, the Arkansas legislature has passed legislation approving of a 10 Commandments monument on the state capitol grounds (albeit paid for with private funds).

            While the findings in the bill to the effect that the 10 Commandments formed a foundational text of the United States and Arkansas and lay out a philosophy of government are certainly open to critique and criticism, that can be a discussion for another day.  Rather, what is initially interesting is that the bill sets forth the required text of the 10 Commandments, namely:

“The Ten Commandments

I AM the LORD thy God.  

Thou shalt have no other gods before me.

Thou shalt not make to thyself any graven images.

Thou shalt not take the Name of the Lord thy God in vain.

Remember the Sabbath day, to keep it holy.

Honor thy father and thy mother, that thy days may be long upon the land which the Lord thy God giveth thee.

Thou shalt not kill.

Thou shalt not commit adultery.

Thou shalt not steal.

Thou shalt not bear false witness against thy neighbor.

Thou shalt not covet thy neighbor's house.

Thou shalt not covet thy neighbor's wife, nor his manservant, nor his  maidservant, nor his cattle, nor anything that is thy neighbor's.”

That is copied directly from the bill.  What is interesting is what happens when you start numbering the “10” Commandments, namely:

“The Ten Commandments

I AM the LORD thy God.  

(1)   Thou shalt have no other gods before me.

(2)   Thou shalt not make to thyself any graven images.

(3)   Thou shalt not take the Name of the Lord thy God in vain.

(4)   Remember the Sabbath day, to keep it holy.

(5)   Honor thy father and thy mother, that thy days may be long upon the land which the Lord thy God giveth thee.

(6)   Thou shalt not kill.

(7)   Thou shalt not commit adultery.

(8)   Thou shalt not steal.

(9)   Thou shalt not bear false witness against thy neighbor.

(10) Thou shalt not covet thy neighbor's house.

(11) Thou shalt not covet thy neighbor's wife, nor his manservant, nor his  maidservant, nor his cattle, nor anything that is thy neighbor's.”

Last time I checked eleven was not ten.  Is there something in the Arkansas education system we should know about?

Now I’m not suggesting that the 10 Commandments are not important, although I view their posting by or with the support of the state to be a violation of the Establishment Clause.  What is important to realize is that various denominations number the Commandments differently in order to make different combinations so that the total number is 10 (and not 11).  In the Catholic tradition the numbers (1) and (2) above are a single commandment, while in Talmudic Judaism the “no coveting” (10) and (11) above are combined.  Maybe Arkansas wanted to avoid legislative adoption of one or the other of the numbering systems in order to avoid an Establishment Clause argument, but in doing so they gave us the 11 Commandments on a 10 Commandments monument.

 

 

 

 

 

Chou v. Chilton, Round Two(2)

Chou v. Chilton, Round Two(2)

      In 2014, the Kentucky Court of Appeals issued a decision parsing the claims brought by Chou and classifying them as claims he could bring for his own account versus claims that could be brought only on behalf of the LLC. HERE IS A LINK to my review of that decision.

      That determination was apparently appealed to the Kentucky Supreme Court.  In order dated March 25, 2015, discretionary review of that ruling was denied.  However, the Supreme Court did order that the decision of Court of Appeals not to be published.

Court of Appeals Applies Up-the-Ladder Immunity from Liability Under Worker's Compensation Law

Court of Appeals Applied Up-the-Ladder Immunity from Liability

Under Worker’s Compensation Law

 

   In a recent decision, the Kentucky Court of Appeals determined that a particular company was a subcontractor of another and that, consequent to that relationship, the contractor had a put the ladder immunity from a claim of a subcontractors employee for an on-the-job injury. Ervin Cable Construction, LLC v. Lay, No. 2014-CA-001047-MR (Ky App. April 3, 2015).

      Lay was an employee of Advanced Cable.  Employees of that company and of Ervin Cable were one morning gassing and loading trucks in preparation for the workday.  Lay was struck by a truck which reversed; it was then being driven by an employee of Erwin Cable.

      Lay pursued and was awarded Worker's Compensation benefits against his employer, Advanced Cable.  He then brought a separate action against Ervin Cable seeking additional damages.   Ervin sought dismissal of that action at the trial court based upon its immunity from liability consequent to the exclusivity of the Worker's Compensation law system and up-the-ladder immunity.  When summary judgment was denied by the trial court, this appeal to the Court of Appeals was taken.

      After noting that the denial of a motion for summary judgment on the basis of Worker's Compensation immunity is an exception to the rule that, generally, the denial of a motion for summary judgment is interlocutory and cannot be appealed, the court turned its attention to the question of whether up-the-ladder  immunity here applied.

      Notwithstanding Lay's assertion that the relationship between his employer and Ervin Cable was not that of a subcontractor/contractor, and is well disposing of Lay’s assertion that somehow his injury was not work-related, the court determined that in fact a contractor/subcontractor relationship existed  even in light of the apparent lack of a written agreement to that effect.   For that reason, Ervin Cable was entitled to up-the-ladder immunity from Lay’s tort claim, and he was held to his workers compensation benefits as his exclusive remedy.

  

Sanctions Awarded For Interference with Arbitration

Sanctions Awarded For Interference with Arbitration

 

      A recent decision from the Court of Appeals Affirmed an award of sanctions against a person who interfered with an arbitration.  Cher-o-kee Truckbodies v. E.S.T. Tool & Machine, Inc., No. 2013-CA-001062-MR (Ky. App. March 27, 2015).

      Susan Cherry had an undefined relationship with Cher-o-kee.  In turn, Cher-o-kee and A.S.T. had a contractual dispute which was per the agreement referred to arbitration.  The arbitration took place, with $26,587.85 awarded to Cher-o-kee and $9,879.79 to E.S.T., yielding a net of $16,708.06 to Cher-o-kee.  Cher-o-kee moved for a new hearing, and both it and E.S.T. submitted arguments (presumably written).

      Before the arbitrator could rule as to the motion for a new hearing, Cherry sent an ex parte letter to the arbitrator insisting that he disqualify himself on the basis that in 2003 he “had donated five hundred dollars to the Attorney General campaign of Greg Stumbo, father of [E.S.T.’s] attorney.” The decision makes clear that Cherry’s then attorney was unaware of the letter.  The arbitrator contacted the KBA Ethics Hotline, who determined that the arbitrator did not have a conflict of interests.  Unhappy with that determination, Cherry again ex parte wrote to the arbitrator “demand[ing] to know if the arbitrator had any other connections to the father of opposing counsel.”  In response the arbitrator recused himself “because he did not want to continue dealing with Cherry’s persistent accusations.” 

      E.S.T. moved the Court to sanction Cherry under Rule 11, seeking the attorney fees and costs it had incurred in the arbitration.  It also sought dismissal of the action, or to approve the findings and award made by the arbitrator.  The trial court (i) awarded E.S.T. the monetary relief (attorney fees and expenses) it had requested, and (ii) declined to award Rule 11 sanctions.  In addition, the trial court approved the withdrawal of Cherry’s attorney.

 

      On appeal, Cherry proceeded pro se; how she was able to do so when a non-attorney may not represent a legal entity is not discussed.  While she argued that her conduct did not rise to the standard required for Rule 11, the Court of Appeals noted that was not the question.  Rather, the point was whether she “abused the process of Court-ordered arbitration.”  Citing Gentry v. Gentry, 798 S.W.2d 928, 938 (Ky. 1990), it was observed that a court has “wide discretion” to award fees “when a party’s ‘conduct and tactics … waste the court’s and attorney’s time.’”  Finding that an arbitrator is equivalent to a judge and that ex part communications are improper, it was observed that if Cherry thought the arbitrator’s determination was incorrect her recourse was review of the award by the courts.

We conclude that by persisting in circumventing our legal procedures, Cherry is responsible for the prolonged post-arbitration proceedings, comprising nearly three years.  Therefore the trial court did not abuse its discretion when it awarded fees to E.S.T.

Derivative Actions in Kentucky Nonprofit Corporations

Derivative Actions in Kentucky Nonprofit Corporations

 

      Kentucky’s nonprofit corporation statute, which is in many respects charitably characterized as antiquated, is largely (although not entirely) silent as to the bringing of derivative actions. Certain individuals have put forth the position that, as the statute is (largely) silent on derivative actions in nonprofit corporations, they do not exist. This position is flawed in that it assumes that derivative actions are created as a matter of positive law. In fact they are not. Rather, derivative actions arose in the courts of equity, and they are not dependent upon any statutory authorization.

In connection therewith, the Kentucky Law Journal Online has published Who Will Watch The Watchers?: Derivative Actions in Nonprofit Corporations, an article which reviews those rules as they arose in the courts of equity and the various cases that have explored the interrelationship of those rules of equitable standing and their subsequent reduction to statute. HERE IS A LINK to that article.

Elemental Principles of Contract Law

Elemental Principles of Contract Law

      Last week, the Kentucky Court of Appeals issued a generally uninteresting decision with respect to a foreclosure. Of interest, however, are the elemental rules of contract formation and interpretation which the court relied upon in making that determination. Dimitrov v. PBI Bank, Inc., No. 2013-CA-002087-MR (Ky. App. March 27, 2015).

      One allegation that the Court rejected was that the bank had violated its obligation of good faith and fair dealing by failing to provide Dimitrov with information as to the outstanding balances on the subject loans. Initially noting that the information had actually been provided, the Court focused as well on the fact that those terms had been set forth in loan modification agreements. With respect thereto, the Court wrote that:

One who signs a contract is presumed to know its contents, and if he had an opportunity to read the contract he signed, he is bound by its provisions.

Slip op. at 5. In connection therewith, the court cited Hathaway v. Eckerle, 336 S.W.3d 83, 89 (Ky. 2011).

      Dimitrov also claimed that PBI had violated a duty by failing to afford him until a certain date to move the loan to another bank or work out a payment plan with PBI. Rejecting this assertion, the Court noted that:

Dimitrov has not pointed to any evidence in the record which indicates that PBI or any of its agents offered Dimitrov an extension. The only mention of this extension through October 2012 is in an email from Dimitrov to PBI’s loan officer, Joe Varner, in which Dimitrov requests an extension. Dimitrov produces no reply to indicate that an extension would be granted. This one-cited proffer is obviously insufficient.

Slip op. at 6, emphasis added.

The Passing of Eleanor of Aquitaine

The Passing of Eleanor of Aquitaine

      Today marks the anniversary of the death, in 1204, of Eleanor of Aquitaine.  By any measure employed, she led an incredible life.

      Heir to more of what we today think of as France than was the then king of France, she would both marry and then divorce Louis VII, King of France. In between the marriage and divorce she would go on a crusade to the Holy Land.  Louis, who had originally been trained for a career in the church and became heir to the French throne only upon his brother Phillip’s death, was not tolerant of what we would today refer to as her high-spirited ways.  Allegations that, while in the Holy Land, she had an affair with her uncle have never been substantiated.

      After divorcing Louis on grounds of consanguinity, she married Henry of Anjou, the heir to the English throne. Upon his ascension to the English throne there was created, by personal union, the Angevin Empire.  Had she predeceased Henry, Eleanor’s lands would have been claimed by him.  History, however, enjoys a good twist, and Eleanor significantly outlived Henry.

      Eleanor was the mother of three English kings, the first Henry III, Richard (the Lionheart) I and John. Admittedly, one can quibble as to whether this Henry III was ever king. He was crowned during his father Henry II’s lifetime in an effort to secure the succession. He would never, however, sit upon the throne as a sole monarch as he predeceased his father. Richard, in his own right, was king of England. Sadly, so was John, to this day identified by the moniker “Bad King.”

      But back to Henry III.  Having been crowned king of England, but deprived of significant lands, income or authority, he bristled at being a showpiece. In concert with his brothers, the then King of France and the King of Scotland, he led a revolt against his father. It was ultimately put down, whereafter Henry II kept Henry III on a short leash. Still, he did not even bother keeping Eleanor on a leash. Rather, for 16 years, he kept her prisoner including in the castle at Old Sarum.

      The Angevin Empire would substantially fall under Bad King John; he simply did not have the wherewithal to hold together its far flung properties.

      Aside from these historic notes, Eleanor’s influence continues to this day. At her court in Aquitaine they played the relatively recently imported game of chess, it having arrived from the Middle East. Eleanor, however, took umbrage at one of the rules and had it changed. Prior to Eleanor’s intervention, the rules of chess provided that the king was the most powerful character while the queen had a circumscribed range. Eleanor decreed, it is said, that those roles be reversed. Her rule continues to this day.