Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Feltner v. PJ Operations, LLC

Court of Appeals of Kentucky

July 6, 2018

PEYTON FELTNER, AS ADMINISTRATOR OF THE ESTATE OF EARL BRANSFORD FELTNER APPELLANT
v.
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
v.
PJ OPERATIONS, LLC D/B/A PAPA JOHN'S KENTUCKY, AND PJ HOLDINGS KY, LLC; TONEY JONES; AND PAPA JOHN'S INTERNATIONAL, INC. APPELLEES

          APPEAL FROM PERRY CIRCUIT COURT HONORABLE ALISON C. WELLS, JUDGE ACTION NO. 15-CI-00232

          BRIEFS FOR APPELLANT: Philip G. Fairbanks M. Austin Mehr Lexington, Kentucky.

          BRIEF 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.

          BRIEF FOR APPELLEE, PAPA JOHN'S INTERNATIONAL, INC.: Jane C. Higgins Sarah E. Noble Lexington, Kentucky.

          BRIEF FOR APPELLEE, TONEY JONES: No brief filed.

          BEFORE: DIXON, KRAMER, AND NICKELL, JUDGES.

          OPINION

          NICKELL, JUDGE.

         Peyton 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.

         Toney 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 liability.

         Early 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.

         As an initial matter, in contravention of CR[1] 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.

         Failing 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.

         On 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.

         Summary 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.