PEYTON FELTNER, AS ADMINISTRATOR OF THE ESTATE OF EARL BRANSFORD FELTNER APPELLANT
PJ OPERATIONS, LLC D/B/A PAPA JOHN'S KENTUCKY, AND PJ HOLDINGS KY, LLC; PAPA JOHN'S INTERNATIONAL, INC.; AND TONEY JONES APPELLEES AND PEYTON FELTNER, AS ADMINISTRATOR OF THE ESTATE OF EARL BRANSFORD FELTNER APPELLANT
PJ OPERATIONS, LLC D/B/A PAPA JOHN'S KENTUCKY, AND PJ HOLDINGS KY, LLC; TONEY JONES; AND PAPA JOHN'S INTERNATIONAL, INC. APPELLEES
FROM PERRY CIRCUIT COURT HONORABLE ALISON C. WELLS, JUDGE
ACTION NO. 15-CI-00232
FOR APPELLANT: Philip G. Fairbanks M. Austin Mehr Lexington,
FOR APPELLEES, PJ OPERATIONS, LLC D/B/A PAPA JOHN'S
KENTUCKY, AND PJ HOLDINGS KY, LLC: Edward H. Stopher Raymond
G. Smith Louisville, Kentucky.
FOR APPELLEE, PAPA JOHN'S INTERNATIONAL, INC.: Jane C.
Higgins Sarah E. Noble Lexington, Kentucky.
FOR APPELLEE, TONEY JONES: No brief filed.
BEFORE: DIXON, KRAMER, AND NICKELL, JUDGES.
Feltner ("Feltner"), as Administrator of the Estate
of Earl Bransford Feltner ("Earl"), appeals from
Perry Circuit Court orders entered August 25, 2016, and
September 8, 2016, granting summary judgment to Papa
John's International, Inc. ("Papa John's"),
and PJ Operations, LLC d/b/a Papa John's Kentucky and PJ
Holdings KY, LLC (collectively "PJ's"), and
denying Feltner's motion for partial summary judgment.
Discerning no error, we affirm.
Jones was a deliveryman for PJ's. On the way home after
work, Jones' vehicle struck a pedestrian, Earl, who
subsequently died. Earl's estate sued Jones, PJ's,
and Papa John's alleging negligence; vicarious liability;
negligent hiring, supervision, and retention; and franchisor
in discovery, Papa John's moved for summary judgment to
dismiss franchisor liability claims and itself as a party to
the action but was denied. After conducting further
discovery, including at least three depositions, Papa
John's renewed its motion for summary judgment. PJ's
also moved for summary judgment. Feltner moved for partial
summary judgment, as well, on whether Jones was acting within
the scope and course of his employment. After a hearing, and
full briefing, the trial court granted summary judgment to
Papa John's and PJ's, but denied Feltner's motion
for partial summary judgment. These appeals followed.
initial matter, in contravention of CR 76.12(4)(c)(v),
which requires ample references to the trial court record
supporting each argument, Feltner's briefs contain only
two such references. These references are contained in the
argument section, in footnotes serving as the statements of
preservation of his arguments. This does not constitute ample
citation to the record.
to comply with the civil rules is an unnecessary risk the
appellate advocate should not chance. Compliance with CR
76.12 is mandatory. See Hallis v. Hallis, 328 S.W.3d
694, 696 (Ky. App. 2010). Although noncompliance with CR
76.12 is not automatically fatal, we would be well within our
discretion to strike Feltner's briefs or dismiss the
appeal for failure to comply. Elwell v. Stone, 799
S.W.2d 46 (Ky. App. 1990). While we have chosen not to impose
such a harsh sanction, we caution counsel such latitude may
not be extended in the future.
appeal, Feltner argues the trial court erred in denying him
partial summary judgment and granting summary judgment to
Papa John's and PJ's on the issue of whether Jones
was acting in the course and scope of his employment at the
time of the accident. While the timing and facts are not
disputed, whether vicarious liability can be imposed, as a
matter of law, is at issue and hinges on whether a valid
exception to the well-established "going and coming
rule" is applicable. Feltner further argues genuine
issues of material fact preclude granting summary judgment on
negligent hiring, supervision, and retention as well as
franchisor liability claims.
judgment is appropriate "if the pleadings, depositions,
answers to interrogatories, stipulations, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of
law." CR 56.03. An appellate court's role in
reviewing a summary judgment is to determine whether the
trial court erred in finding no genuine issue of material
fact exists and the moving party was entitled to judgment as
a matter of law. Scifres v. Kraft, 916 S.W.2d 779,
781 (Ky. App. 1996). A grant of summary judgment is reviewed
de novo because factual findings ...