author: COMBS, Judge.

text:
    John David MAY and Sherri May, Appellants, v. Sarah HOLZKNECHT, Mother and Next Friend of Meghan Holzknecht; and Kentucky Farm Bureau Mutual Insurance Company, Appellees.
    No. 2009-CA-001905-MR.
    Court of Appeals of Kentucky.
    Aug. 13, 2010.

      Patrick A. Ross, Horse Cave, KY, for appellants.
    Matthew C. Hess, Elizabethtown, KY, for appellee Sarah Holzknecht.
    Before TAYLOR, Chief Judge; COMBS and NICKELL, Judges.
   OPINION

COMBS, Judge.

Sherri May and John David May appeal from a partial summary judgment and a subsequent trial order and judgment of the Hardin Circuit Court in favor of Sarah Holzknecht, as mother and next friend of Meghan Holzknecht. The Mays contend that the trial court erred by concluding that they were strictly liable under the provisions of Kentucky Revised Statutes[s](KRS) 258.235(4), the dog-bite statute, by failing to direct a verdict in favor of John David May at trial, and by permitting the jury to award damages for future pain and suffering. After our review, we affirm.

On January 23, 2008, Sarah Holzknecht filed a complaint against the Mays and their homeowners’ insurance carrier, Kentucky Farm Bureau Mutual Insurance Company. Holzknecht alleged that the Mays were liable for their daughter’s injuries when a dog kept at their home-based childcare center mauled her. Holzknecht asserted that the Mays failed to exercise ordinary care for the safety of her child. Additionally, she argued that they were liable under the provisions of KRS 258.235(4), which provides that the keeper of a dog shall be responsible for the damage that it causes. Holzknecht alleged that since Meghan was under two years of age at the time of the attack, she was incapable of comparative negligence as a matter of law.

The Mays answered and denied that they were liable for Meghan’s injuries. In an answer to an interrogatory, the Mays suggested that the dog “could well have been excessively provoked” by Meghan. However, they also described another incident that had occurred just days before the event involving Meghan when their dog nipped and scratched another child who was being cared for in their home. In her deposition, Sherri May admitted that the dog growled at men from time to time. With respect to the events of the day of Meghan’s attack, Sherri May admitted that she had allowed the dog to be in the area among the children at a time when she was preparing the children for a mid-morning rest period. The dog was sharing a blanket with Meghan when she (Sherri May) left the room to make a sandwich in the kitchen. Shortly after leaving for the kitchen, Sherri May heard an unusual growling followed by screaming. One of the children ran into the kitchen to report that the dog had attacked Meghan.

After the Mays were deposed, Hol-zknecht filed a motion for summary judgment with respect to their liability. She contended that the Mays were liable as a matter of law. While she conceded that the dog-bite statute had not been construed to impose strict liability on the keeper of a dog, Holzknecht argued that the statute did relieve her of any obligation to show the vicious propensities of the Mays’ dog. Since Meghan was incapable of negligence as a matter of law due to her extreme minority, Holzknecht argued that only the Mays could be held liable for the injuries resulting from the dog attack.

In their response, the Mays conceded that Holzknecht did not have the burden of proving the dog’s vicious propensities. Nonetheless, relying upon this court’s opinion in Carmical v. Bullock, 251 S.W.3d 324, 327 (Ky.App.2007), they argued that:

the owners of an animal may exculpate themselves from' liability by showing that the harm was caused by the victim’s fault, or by the fault of a third person for whom the owner was not responsible, or by a fortuitous circumstance.

In this case, the Mays contended that they could be relieved of responsibility for the damage caused by the dog since the facts “suggest that Meghan pulled on the dog’s blanket before the dog bit her” (Defendants’ Response to Plaintiffs Motion for Summary Judgment at 2). Although they had represented that the dog was kept outside, the Mays nonetheless attempted to avoid responsibility by arguing that the mother had not seemed concerned that the dog had access to Meghan when she stayed with the Mays.

The trial court concluded that the child could not be found negligent since she was less than two years of age and that no third-party could be held responsible for the damages caused by the dog under the facts of this case. The court also categorically rejected the notion that the facts of this case amounted to a “fortuitous circumstance” that might absolve the Mays of liability. Thus, a partial summary judgment was entered in Holzknecht’s favor.

With liability established, a jury was seated to determine damages. The jury awarded Holzknecht $25,889.84 for Meghan’s medical expenses and $50,000.00 for her past and future pain and suffering. The trial court denied the Mays’ motion to alter, amend, or vacate the judgment. This appeal followed.

On appeal, the Mays present three issues for our review. First, they contend that the trial court erred by concluding that the provisions of KRS 258.235(4) created strict liability for the keepers of a dog and, consequently, by granting summary judgment with respect to their liability. Instead, they argue that liability should have been established according to traditional principles of negligence.

Next, the Mays contend that the trial court erred by failing to direct a verdict in favor of John David May. They argue that he was not at fault and could not be held liable for the damages resulting from the dog’s attack.

Finally, the Mays argue that the trial court erred by permitting the jury to make an award for Meghan’s future pain and suffering since there was no evidence to establish with reasonable certainty that she would experience any such ill effects. These issues are discussed in the order in which they were argued in the parties’ briefs.

Summary judgment serves to terminate litigation where “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.” Kentucky Rule[s] of Civil Procedure 56.03. Summary judgment should be granted only if it appears impossible that the nonmoving party will be able to produce evidence at trial warranting a judgment in his favor. Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky.1991). Summary judgment “is only proper where the mov-ant shows that the adverse party could not prevail under any circumstances.” Id., citing Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255 (Ky.1985).

On appeal, we consider whether the trial court correctly determined that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916 S.W.2d 779 (Ky.App.1996). Since summary judgment involves only questions of law and not the resolution of disputed material facts, an appellate court need not defer to the trial court’s decision. Goldsmith v. Allied Building Components, Inc., 833 S.W.2d 378 (Ky.1992). Our review is de novo.

KRS 258.235(4) provides that any dog owner (and every person who keeps or harbors the dog) “whose dog is found to have caused damage to a person ... shall be responsible for that damage.” The trial court did not interpret the provisions of KRS 258.235 to impose strict liability upon the keepers of dogs under all circumstances. In fact, the court specifically rejected this notion. However, from the undisputed facts of this case, the trial court concluded that the Mays, and the Mays alone, were liable for the damages caused by the dog that they kept. Again, neither Meghan, the victim, nor any intervening third party was at fault to arguably exculpate the Mays. Carmical, 251 S.W.3d at 327.

At common law, “the dog was regarded as a tame, harmless, and docile animal, and its owner not responsible for any vicious or mischievous act it might do, unless he had a previous knowledge of the mischievous or vicious propensities.” Koestel v. Cunningham, 97 Ky. 421, 30 S.W. 970, 17 Ky.L.Rptr. 296 (1895). “As an English judge put it, ‘the dog was entitled to his first bite.’ ” Id. However, once it was established that the dog was vicious or mischievous and that its keeper had knowledge of that fact, proof of negligence on the part of the keeper became unnecessary in an action for damages. Brown v. Weathers, 247 Ky. 306, 57 S.W.2d 4 (1933).

In abrogating the common law, our dog-bite statutes were intended to broaden the responsibilities of those who keep a dog. Koestel, supra. Nevertheless, in construing various (yet similar) versions of the dog-bite statute over time, our courts have held that the General Assembly “did not intend to impose strict liability under any and all circumstances.” Johnson v. Brown, 450 S.W.2d 495, 496 (Ky.1970). In Bush v. Wathen, 104 Ky. 548, 47 S.W. 599, 600, 20 Ky.L.Rptr. 731 (1898), the Court acknowledged that the keeper of a dog “shall be liable to the party injured for all damages done by such dog[,]” but it also held that “if the party injured was guilty of some act except for which the dog would not have bitten him, he is guilty of contributory negligence, and cannot recover damages for the injury sustained.”

In Dykes v. Alexander, 411 S.W.2d 47 (Ky.1967), the Court held that one who keeps a dog enclosed or fettered on his own premises will not be liable to a trespasser whose presence and exposure to the dog was unknown to the dog’s keeper. In Johnson v. Brown, supra, on the other hand, we held that if the plaintiffs presence was known to the dog’s keeper (or within his reasonable expectation), it was the keeper’s statutory duty to prevent the plaintiff from being bitten — while the plaintiff was also expected to exercise ordinary care for his own safety. Recently, we have recognized that principles of comparative fault remain relevant where a dog’s keeper can show that the harm was caused by the victim, by the fault of a third person for whom the owner was not responsible, or by a fortuitous circumstance. See Carmical v. Bullock, 251 S.W.3d 324 (Ky. App.2007).

None of the factors that might have absolved or limited the Mays’ liability is involved in this case. There is no dispute that the Mays harbored the dog and that they knew or reasonably expected that the dog would have direct access to the children in their home, including Meghan Hol-zknecht. They had told Meghan’s mother that the dog would be kept outside — contrary to actual practice. Under the circumstances, they violated their statutory duty to prevent the child from being mauled by the dog. Evidence of the dog’s temperament is irrelevant, and the child was not comparatively negligent; again, she was legally incapable of negligence in light of her tender years. See Lehman v. Patterson, 298 Ky. 360, 182 S.W.2d 897 (1944) (a child under seven years of age is not chargeable with contributory negligence). No third party and no fortuitous circumstance existed to implicate any aspect of comparative negligence.

This case involves application of the statute to undisputed facts. Under these facts, the Mays were liable as the dog’s keepers for Meghan’s injuries as a matter of law, and the only question that remained was the extent of her damages. See Davidson v. Manning, 168 Ky. 288, 181 S.W. 1111 (1916) (where child was present, was invited in, and the dog bit her, the only question was as to the extent of her injury). The trial court clearly did not err by granting the motion for summary judgment with respect to the Mays’ liability.

Next, the Mays contend that John David May was entitled to a directed verdict since he did not operate the child care business, made no decisions with respect to Sherri’s care of the children, and was not even at home when the dog attacked Meghan. We disagree.

The Mays’ argument wholly disregards the existence of KRS 258.235(4). As we have concluded, under the circumstances of this case, the Mays were liable as the dog’s keepers for Meghan’s injuries as a matter of law. Since the trial court granted Holzknecht’s motion for partial summary judgment, no evidence to prove John David’s negligence was introduced at trial, and none was necessary. John David’s liability does not arise from his activities at the home on the day that Meghan was mauled. Instead, under the undisputed facts of this case, he is liable by virtue of his status as keeper of the dog. John David fed, watered, and otherwise cared for the dog. As an owner of the home, he could have assured that the dog be kept outside or even removed from the premises. He knew or reasonably expected that the dog would likely have direct access to the children kept at his house, including Meghan. John David violated his statutory duty to prevent the child from being mauled by the dog, and he cannot claim the relief he seeks.

Finally, the Mays contend that the trial court erred by permitting the jury to make an award for Meghan’s future pain and suffering since Holzknecht did not establish that Meghan would need any additional medical treatment. The Mays contend that the trial court erred by failing to grant their motion for a new trial on this basis.

In support of their argument, the Mays cite this court’s opinion in Worldwide Equipment, Inc. v. Mullins, 11 S.W.3d 50 (Ky.App.1999). In Worldwide Equipment, we held that where there was no evidence to suggest that the plaintiff had survived the immediate impact of a collision with a coal truck, the trial court erred by failing to grant a directed verdict on the issue of pain and suffering. That holding is highly distinguishable and does not serve as an apt precedent in this case.

Future pain and suffering because of an injury is an element of damages for which the injured party is entitled to recover — if there is evidence establishing that it is reasonably certain that pain and suffering will occur. American States Ins. Co. v. Audubon Country Club, 650 S.W.2d 252 (Ky.1983). If future medical expenses are awarded by a jury, there is a strong indication that a corresponding award for future pain and suffering must be considered. Id. However, there is no rule to suggest that where no future medical expenses are indicated, the jury is precluded from making an award. The test is whether there is evidence to indicate that the plaintiffs pain and suffering are likely to continue to occur.

Whether an award represents excessive or inadequate damages turns on the nature of the underlying evidence. Miller v. Swift, 42 S.W.3d 599 (Ky.2001). In this case, there was evidence to indicate that the child had suffered severe lacerations and puncture wounds to her face and the inside of her mouth; that she had been airlifted to Louisville for treatment; that she had undergone two surgeries (the second conducted nearly a year following the first to allow for some initial healing); that she had contracted an unrelated virus at the hospital; that she had cried with pain as her face healed; that she continued to have trouble sleeping nearly two years later; that she remained afraid of any loud noise that reminded her of the helicopter that transported her to the hospital; that she still clung compulsively to her mother; and that her face was scarred by the attack. In light of this considerable quantum of evidence, we cannot say that the trial court erred by denying the Mays’ motion for a new trial based on an allegation of an excessive award of damages.

The judgments of the Hardin Circuit Court are affirmed.

ALL CONCUR.

      . Farm Bureau defended the action under a reservation of rights. The insurer was dismissed by an order of the trial court entered September 29, 2008. We have addressed the merits of that decision in an opinion also rendered this date.

      . KRS 258.990(2), entitled ‘‘Penalties,” provides that ‘‘[t]he owner of any dog ... which bites a human being shall be liable to pay all damages for personal injuries resulting from the bite....”


source: Caselaw Access Project

author: LAMBERT, Senior Judge:

license: Public Domain

text:
    Charles Edward MCNEW, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2009-CA-001325-MR.
    Court of Appeals of Kentucky.
    Aug. 20, 2010.
    Robert C. Bishop, Elizabethtown, KY, for appellant.
    Jack Conway, Attorney General, James C. Shackelford, Assistant Attorney General, Frankfort, KY, for appellee.
    Before DIXON and KELLER, Judges; LAMBERT, Senior Judge.

      . Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.

   OPINION

LAMBERT, Senior Judge:

Charles Edward McNew appeals from an order of the Hardin Circuit Court denying his motion for post-conviction relief filed pursuant to Kentucky Rules of Civil Procedure (CR) 60.02. In the underlying case, pursuant to the terms of a plea agreement, Appellant had pled guilty to felony possession of drug paraphernalia and two misdemeanor offenses. He was sentenced to five years in prison. In this proceeding he contends that the sentencing judge lacked authority to enter a judgment and sentence, and he seeks vacatur of his convictions. Having reviewed the record and discovering no error, we affirm the denial of relief.

Appellant was charged by information with possession of drug paraphernalia (second offense), possession of marijuana and alcohol intoxication. On October 9, 2007, Appellant reached a plea agreement with the Commonwealth in which he agreed to plead guilty to all charges in exchange for the Commonwealth’s recommendation of probation. The agreement was further conditioned upon Appellant’s service of an alternate 60-day sentence and satisfaction of a number of other requirements including passing random drug screens, completing substance abuse counseling, and completing 32 hours per week of employment and/or community service. The plea agreement also contained sentencing enhancement clauses that would require Appellant to serve the maximum sentence on each charge in the event that he failed to appear for sentencing.

Appellant signed and filed the standard “Motion to Enter Guilty Plea.” The trial court accepted the motion but withheld entry of judgment and sentencing pending completion of a presentence investigation report. A sentencing hearing was scheduled for November 27, 2007.

On the scheduled sentencing date, the trial judge, Hon. Ken Howard, signed a “Memorandum and Order of Disqualification” disqualifying himself as presiding judge in the case pursuant to KRS 26A.015(2)(b) and (e) and Canon 3E(l)(b) of the Kentucky Code of Judicial Conduct. Judge Howard had been the Hardin County Attorney at the time the subject charges were brought against Appellant. However, the order left open the possibility that Judge Howard could return as presiding judge if the parties agreed to waive disqualification pursuant to Canon 3F of the Kentucky Code of Judicial Conduct, a rule that provides as follows:

Remittal of Disqualification. A judge disqualified by the terms of Section 3E may disclose on the record the basis of the judge’s disqualification and may ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification. If following disclosure of any basis for disqualification other than personal bias or prejudice concerning a party, the parties and lawyers, without participation by the judge, all agree that the judge should not be disqualified, and the judge is then willing to participate, the judge may participate in the proceeding. The agreement, signed by all parties and lawyers, shall be incorporated in the record of the proceeding.

The order further provided that unless there was a waiver of disqualification, the case would be transferred to Senior Judge Janet P. Coleman. It does not appear from the record that the parties agreed to waive Judge Howard’s disqualification, so the case was transferred to Senior Judge Coleman in accordance with the order.

Meanwhile, Appellant failed to appear for sentencing. Consequently, on November 28, 2007, Senior Judge Coleman signed a bench warrant for Appellant’s arrest. Appellant was not apprehended until February 24, 2009. At that time, the case was apparently returned to Judge Howard’s docket, and he subsequently issued an order continuing the case until March 17, 2009, for sentencing. On the day of the scheduled sentencing hearing, Appellant, his attorney, and the Commonwealth Attorney signed and filed a “Remittal of Disqualification” in which they waived Judge Howard’s prior disqualification. The re-mittal reflects that such was done “without participation by the Judge.” Judge Howard then entered a “Judgment and Order Imposing Sentence” finding Appellant guilty of the charged offenses and sentencing him to a total of five years imprisonment in accordance with the terms of the plea agreement — including the sentence enhancement clauses.

On May 13, 2009, Appellant, represented by new counsel, filed a motion to vacate the “Judgment and Order Imposing Sentence” pursuant to CR 60.02(a). Appellant claimed that the “Remittal of Disqualification” was invalid and that Judge Howard, therefore, did not have the authority to impose a judgment and sentence upon him. Following a hearing, Judge Howard denied the motion. He also denied a subsequent motion for specific findings of fact and conclusions of law to support the decision. This appeal followed.

On appeal Appellant argues that Judge Howard lacked the authority to preside over his case following entry of the “Memorandum and Order of Disqualification” and that as a result, the “Judgment and Order Imposing Sentence” subsequently signed by Judge Howard was null and void. In response, the Commonwealth contends that Judge Howard was entitled to resume presiding when the parties signed and submitted a valid “Remittal of Disqualification.”

Appellant notes that while the “Remittal of Disqualification” was signed and entered, no facts were revealed showing the original reasons for Judge Howard’s disqualification. He further notes that no facts were introduced indicating that the original reasons for Judge Howard’s disqualification had been removed and were no longer in existence. Accepting the truth of these assertions, we fail to see their relevance. Appellant’s consent waived Judge Howard’s disqualification. We recognize that Canon 3F of the Code of Judicial Conduct precludes parties and lawyers from waiving disqualification when “personal bias or prejudice concerning a party” exists on the part of the trial judge. There has been no such bias or prejudice alleged in this case. Consequently, even though the basis for Judge Howard’s original disqualification may not appear of record, we have discovered nothing to suggest that the parties did not have the right to waive that disqualification pursuant to Canon 3F.

We further note that Appellant has failed to allege that the procedural requirements of Canon 3F failed in this case with respect to the “Remittal of Disqualification.” Instead, Appellant contends that the Supreme Court of Kentucky’s decision in Appalachian Regional Healthcare, Inc. v. Coleman, 239 S.W.3d 49 (Ky.2007), which also involved questions regarding a judge’s recusal and reentry into a case, required Judge Howard to remain disqualified. That opinion explicitly noted that no question of waiver existed because the parties had not agreed for the judge to remain on the case. Id. at 54. As such, the opinion also did not mention Canon 3F and its applicability. Coleman has limited precedential value here.

Appellant also argues that the “Remittal of Disqualification” is void because it was entered more than ten days after the “Memorandum and Order of Disqualification” was entered, in violation of CR 59. CR 59 sets forth a ten-day window following the entry of a “final judgment” within which a party may move to challenge the judgment or the time within which the trial court may, sua sponte, amend or vacate a judgment. See CR 59.02, 59.04, and 59.05. However, Appellant has provided us with no authority to support his position that such an order is considered a “final judgment” for purposes of CR 59. See CR 54.01. An extraordinary writ claim would have been the proper procedural vehicle to ripen this argument.

It would have been better practice for Judge Howard to have disclosed on the record the basis for his earlier disqualification. Even without that disclosure, however, the parties waived disqualification pursuant to Canon 3F. Parenthetically, we suspect that failure of the parties to request reasons for disqualification at the time of remittal occurred because the parties were well aware that Judge Howard had been Hardin County Attorney at the time the charges were brought. In any event, however, the time to have requested disclosure of reasons for the prior disqualification was at the time the remittal was signed, not in a subsequent post-conviction collateral attack proceeding. Any error with respect to Judge Howard’s failure to make the required disclosure is unpre-served.

In summary, we hold that the trial court did not err in denying Appellant’s motion for CR 60.02 relief. Canon 3F of the Code of Judicial Conduct expressly gives parties the authority to waive a trial judge’s disqualification. Consequently, when Judge Howard’s disqualification was remitted, he regained authority to impose a judgment and sentence in this case. For the foregoing reasons, the order of the Hardin Circuit Court denying Appellant’s CR 60.02 motion is affirmed.

ALL CONCUR.

      . KRS 26A.015(2)(b) provides: "Any justice or judge of the Court of Justice or master commissioner shall disqualify himself in any proceeding ... [wjhere in private practice or government service he served as a lawyer or rendered a legal opinion in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter in controversy, or the judge, master commissioner or such lawyer has been a material witness concerning the matter in controversy[.j”

      . KRS 26A.015(2)(e) provides: "Any justice or judge of the Court of Justice or master commissioner shall disqualify himself in any proceeding ... [wjhere he has knowledge of any other circumstances in which his impartiality might reasonably be questioned.”

      . The Kentucky Code of Judicial Conduct is set forth in Kentucky Supreme Court Rule (SCR) 4.300. Canon 3E(l)(b) provides: "A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where ... the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge has been a material witness concerning it[.j”

      . Appellant had earlier failed to appear for a required drug screening. This incident was also brought to the attention of the trial court.

      . It is unclear from the record why Judge Howard and not Senior Judge Coleman submitted this order. The Commonwealth speculates that Judge Howard continued the case because of his previous disqualification, but the record contains nothing definitive on this issue.

      . CR 60.02(a) provides: "On motion a court may, upon such terms as are just, relieve a party or his legal representative from its final judgment, order, or proceeding upon the following grounds: ... mistake, inadvertence, surprise or excusable neglectf.]" It is questionable that this was an appropriate basis for relief given that Appellant was essentially arguing that the judgment entered against him was void, but the parties have not raised the issue here. Thus, we decline to address it any further.

      . Appellant did not file a designation of record, so the record before us does not include a video or transcript of this hearing.

      . In the introduction to his brief, Appellant also asserts that he is appealing from the trial court’s denial of his motion for findings of fact and conclusions of law. However, Appellant fails to address the issue anywhere else within his brief. Consequently, we decline to address the matter any further here with the exception of noting that such findings of fact and conclusions of law are not required in a case involving a CR 60.02 motion. See CR 52.01; Clay v. Clay, 424 S.W.2d 583, 584 (Ky.1968).


author: NICKELL, Judge:

text:
    Carl D. LITTLE, Appellant, v. KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY, Beth Clemons, and Michael R. Fannin Insurance, Inc., Appellee.
    No. 2009-CA-001030-MR.
    Court of Appeals of Kentucky.
    Aug. 20, 2010.
    Nicholas C.A. Vaughn, Somerset, KY, for appellant.
    Deborah R. Lewis, Hazard, KY, for ap-pellee, Kentucky Farm Bureau Mutual Insurance Company.
    Marcia L. Wireman, Jackson, KY, for appellees, Michael R. Fannin Insurance, Inc. and Beth Clemons.
    Before NICKELL and STUMBO, Judges; WHITE, Senior Judge.

      . Senior Judge Edwin White sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.

   OPINION

NICKELL, Judge:

Carl D. Little appeals from summary judgments entered in favor of Kentucky Farm Bureau Mutual Insurance Co., Beth Clemons, and Michael R. Fannin Insur-anee, Inc. Little argues the trial court erred by concluding there is neither statutory duty nor a common law or fiduciary duty to provide a specific amount of under-insured coverage. We affirm.

Little was involved in an automobile accident. Prior to the accident, he had purchased an automobile insurance policy from Beth Clemons, who was acting as an agent for Michael R. Fannin Insurance and Farm Bureau. The policy provided liability limits of $100,000 per person and $300,000 per accident. The policy contained underinsured limits of $25,000 per person and $50,000 per accident. Little alleges he requested underinsured coverage up to the liability limits.

Little brought suit against the tortfea-sors and against Farm Bureau for under-insured benefits. Little settled his claim against the tortfeasors for the policy limits and then amended his complaint to assert negligence and vicarious liability claims against Clemons and Fannin Insurance for failing to provide him the un-derinsured coverage he requested. Little asserted that Farm Bureau, Fannin Insurance, and Clemons breached statutory, common law, and fiduciary duties by failing to sell him the underinsurance coverage he requested. Farm Bureau filed a motion for summary judgment on December 30, 2008, asserting it had no statutory duty to sell any particular amount of un-derinsurance coverage. The trial court granted summary judgment in favor of Farm Bureau holding there is no statutory duty to sell a specific amount of un-derinsured coverage. Subsequently, Fan-nin Insurance and Clemons filed a motion for summary judgment on February 11, 2009. Following a hearing, the trial court granted summary judgment to Clemons and Fannin Insurance again holding there is no statutory duty to sell a specific amount of underinsured coverage. The order reserved ruling on Little’s common law and fiduciary duty claims. Finally, Farm Bureau filed a motion for summary judgment asserting it had no common law or fiduciary duty to sell any particular amount of underinsurance coverage. This motion was joined by Fannin Insurance and Clemons. The trial court granted summary judgment in favor of Farm Bureau, Clemons, and Fannin Insurance holding there is no common law or fiduciary duty to sell a specific amount of underinsured coverage. Little filed a motion to alter, amend, or vacate the summary judgments which the trial court denied. This appeal followed.

Little first argues KRS 304.39-320(2) imposes a duty upon insurers to provide a specific amount of requested un-derinsured coverage. We disagree.

KRS 304.39-320(2) provides:

Every insurer shall make available upon request to its insureds underinsured motorist coverage, whereby subject to the terms and conditions of such coverage not inconsistent with this section the insurance company agrees to pay its own insured for such uncompensated damages as he may recover on account of injury due to a motor vehicle accident because the judgment recovered against the owner of the other vehicle exceeds the liability policy limits thereon, to the extent of the underinsurance policy limits on the vehicle of the party recovering.

Questions involving statutory construction are reviewed de novo. Bob Hook Chevrolet Isuzu, Inc. v. Commonwealth, Transp. Cabinet, 983 S.W.2d 488, 490-91 (Ky.1998).

Little maintains Farm Bureau should have sold him a policy of underinsured coverage at the limits he requested because he was willing to pay a reasonable premium for such coverage. This is not a case where he alleges he actually purchased a policy and paid the premiums, but was denied benefits. Little concedes there is nothing in KRS 304.39-320(2) requiring insurers to provide a specific amount of underinsured coverage, but maintains caselaw interprets the statute to contain such a duty.

Little correctly states KRS 304.39-320(2) requires insurers to make underin-sured coverage available if requested. Allstate Ins. Co. v. Dicke, 862 S.W.2d 327, 328-29 (Ky.1993). However, nothing in Dicke states or even suggests insurers are required to provide underinsured coverage under terms unilaterally set by the request of the insured. The insurer is only required to provide underinsured coverage, if requested, under “such terms and conditions not ... inconsistent with the section of the statute.” Id. at 329. Again, we discern nothing in Dicke requiring insurers to provide a specific amount of under-insured coverage.

Little next argues Farm Bureau violated a common law duty to provide him with the specific amount of insurance he requested. Little premises the duty upon Mullins v. Commonwealth Life Ins. Co., 839 S.W.2d 245, 248 (Ky.1992), which states:

An insurance agent ordinarily only assumes those duties found in an agency relationship. An agent owes his principal the obligation to deal in good faith and to carry out the principal’s instructions. Other jurisdictions have found that, generally, an insurer may assume a duty to advise an insured when: (1) he expressly undertakes to advise the insured; or (2) he impliedly undertakes to advise the insured. The insured has the burden of proving that the insurer assumed such a duty.
An implied assumption of duty may be present when: (1) the insured pays the insurance agent consideration beyond a mere payment of the premium; (2) there is a course of dealing over an extended period of time which would put an objectively reasonable insurance agent on notice that his advice is being sought and relied on; or (3) the insured clearly makes a request for advice.

(Internal citations omitted).

In the present case, Little admitted Farm Bureau told him he would not be sold underinsured coverage at the limits he requested. Little also admitted he knew the limits were not the limits he requested prior to the accident underlying this case. Little’s reliance on Grigsby v. Mountain Valley Ins. Agency, Inc., 795 S.W.2d 372, 375 (Ky.1990), is of no moment as Grigsby is distinguishable from the current situation. In Grigsby, the Court held an insurer could be held liable because it failed to provide fire insurance for a particular piece of property and instead insured a different property. In Grigsby, the insured did not receive the policy bargained for and instead received a different unnecessary policy. In this ease, Little knew he would be not be sold a policy at the limits he requested. In Brewer v. National Indem. Co., 163 S.W.3d 885, 886 (Ky.2005), the Court simply held an insured may proceed against the insurer “pursuant to the bargained-for agreement entered into by the parties.” Here, it is undisputed there was no agreement by the parties. Underinsured policies are contractual in nature. Schwartz v. Hasty, 175 S.W.3d 621, 628 (Ky.App.2005). Therefore, Little may not unilaterally dictate the terms of coverage or Farm Bureau’s acceptance of his terms.

Accordingly, the judgments of Knott Circuit Court are affirmed.

ALL CONCUR.

      . Because Little’s arguments on appeal each concern the appellees as a whole, we will henceforth refer to appellees collectively as "Farm Bureau” for the sake of clarity.


author: ACREE, Judge:

text:
    Earl BENNETT, Appellant, v. Carter MALCOMB, Appellee.
    No. 2009-CA-000871-MR.
    Court of Appeals of Kentucky.
    Aug. 20, 2010.
    C. Ed Massey, Erlanger, KY, for appellant.
    Robert B. Cetrulo, Edgewood, KY, for appellee.
    Before TAYLOR, Chief Judge; ACREE, Judge; BUCKINGHAM, Senior Judge.

      . Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute (KRS) 21.580.

   OPINION

ACREE, Judge:

Earl Bennett, the appellant, seeks reversal of the Owen Circuit Court’s order granting summary judgment for the appel-lee, Carter Malcomb. The circuit court determined that Mr. Bennett’s claim was barred by the statute of limitations. We affirm.

On April 28, 2008, Mr. Bennett filed a complaint alleging that Mr. Malcomb intentionally, recklessly and negligently harmed him by pinning him against a post with a tractor on April 28, 2006. As a result of the incident, Mr. Bennett suffered physical injury, but sought no psychological treatment. The complaint was dismissed for lack of jurisdiction pursuant to KRS 413.140 because it was brought more than one year after the accrual of the action. Mr. Bennett was then given leave to amend his complaint. He did so adding a cause of action for the intentional infliction of emotional distress, otherwise known as the tort of outrage.

Subsequently, the circuit court granted the appellee’s motion for summary judgment finding the tort of outrage inappropriate because traditional tort remedies existed. Thus, the claim was barred by the one-year statute of limitations applicable to traditional torts and not the five-year statute of limitations applicable to the tort of outrage.

This Court must determine if Mr. Bennett may bring a claim of outrage. If he cannot, then the statute of limitations bars recovery. The tort of outrage

is intended as a “gap-filler”, proving redress for extreme emotional distress where traditional common law actions do not. Where an actor’s conduct amounts to the commission of one of the traditional torts such as assault, battery, or negligence for which recovery for emotional distress is allowed, and the conduct was not intended only to cause extreme emotional distress in the victim, the tort of outrage will not lie. Recovery for emotional distress in those instances must be had under the appropriate traditional common law action.

Banks v. Fritsch, 39 S.W.3d 474, 481 (Ky.App.2001). As mentioned above, Mr. Bennett’s original complaint set forth various traditional torts alleging that Mr. Mal-comb’s actions were intended to cause him physical harm. Further, Mr. Bennett testified in his deposition that prior to pinning him with the tractor, Mr. Malcomb passed him and stated “if you’re still there I’ll run you through.” There is no evidence that the conduct was intended only to cause extreme emotional distress. Instead, there is every indication that, to the extent the conduct was intentional, it was intended to cause physical harm.

Therefore, because recovery could appropriately be sought under the traditional common law torts and the evidence shows the actions were not intended to only cause emotional distress, a cause of action for outrage is not appropriate. Furthermore, the tort of outrage was intended to fill the gap left by outrageous conduct that harms a plaintiff, but leaves him without recovery via the traditional torts. The tort of outrage was not intended to provide a cause of action for plaintiffs who simply failed to bring a traditional tort claim within the statute of limitations.

The judgment of the circuit court is affirmed.

ALL CONCUR.


text:
    Shelby MILLER, Appellant/Cross-Appellee v. Robert HARRIS and Opal Harris, Appellees/Cross-Appellants.
    No. 2009-CA-002330-ME, 2009-CA-002415-ME.
    Court of Appeals of Kentucky.
    Aug. 27, 2010.

      Rodger G. Cox, Campbellsville, KY, for appellant/cross-appellee.
    James L. Avritt, Jr., Lebanon, KY, for appellees/cross-appellants.
    Before ACREE and NICKELL, Judges; HARRIS, Senior Judge.

      . Senior Judge William R. Harris sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes 21.580. Judge Harris is unrelated to the appellees/cross-appellants by blood or marriage.

   OPINION

NICKELL, Judge:

Shelby Miller, the maternal grandmother of two minor children, appeals from a judgment of the Marion Circuit Court awarding custody of the children to their great uncle and aunt, Robert and Opal Harris. Miller also appeals from an order denying her motion for a new trial but modifying the custody order to incorporate requested findings of fact. After thorough review of the briefs, the record and the law, we affirm.

We begin with a brief statement of the facts and procedural history of these two consolidated cases. Phyllis Coffey gave birth to four children before her death in a car accident in December of 2006. This appeal concerns custody of her two youngest children, a daughter (S.R.S.) born on May 31, 2003, and a son (T.P.S.) born on February 8, 2001. The children’s father lives in Indiana and has not asserted parental rights.

S.R.S. was born a “crack baby.” Within days of her birth, she was removed from her mother and placed with relatives where she lived the first year of her life. During this time, the Harrises spent considerable time with S.R.S. and provided for her. In contrast, Miller was not involved in the child’s life. S.R.S. was returned to Coffey’s care, but was removed again in September of 2004. At that time the Har-rises were awarded temporary custody for about eight months. Miller did not attempt to contact or see the child during this time.

Within days of Coffey’s death, the Har-rises petitioned the Marion Circuit Court to grant them custody of S.R.S. T.P.S. was in someone else’s care. Contrary to the Harrises’ request, in February of 2007, temporary custody of both S.R.S. and T.P.S. was awarded to Debra Penick, Coffey’s twin sister. Two months later, Pen-ick was awarded permanent custody of both children. T.P.S. began living with Penick immediately. S.R.S. joined Pen-ick’s household at the end of the 2006-2007 school year. Until school ended, S.R.S. continued living with the Harrises. In June of 2007, the Harrises began weekend visitation with the children.

Penick tried to rear S.R.S. and T.P.S., but being a single mother who was working full-time and struggling to raise her own two children, she soon realized she could not care for her niece and nephew. Without court approval or knowledge, Pen-ick took the children to Indiana on July 6, 2008, and gave physical custody of them to her mother, the children’s maternal grandmother, Shelby Miller. On July 15, 2008, a court in Jennings County, Indiana, named Miller the children’s guardian.

Things quickly went awry. On August 27, 2008, the Harrises moved the Marion Circuit Court to modify custody and set a visitation schedule. On September 12, 2008, the Marion Circuit Court ordered Penick to immediately return the children to Campbellsville, Kentucky, enroll them in local schools and make them available for weekend visitation with the Harrises. Four days later another order was entered stating that Miller had refused to release the children and asking Indiana law enforcement to assist in returning the children to Kentucky. The order went on to state that if Miller refused to cooperate, a warrant would issue and she would be arrested for custodial interference.

On September 23, 2008, an Indiana court issued an order on Miller’s petition to terminate the Harrises’ visitation. Following an emergency hearing, the court acknowledged having given Miller guardianship of the children in July of 2008, but declined to exercise further jurisdiction.

In November of 2008, Miller was allowed to file an intervening petition in the Marion Circuit Court to seek custody of the children. In February of 2009, the Marion Circuit Court entered an order permitting the Harrises to have telephone contact with the children for one hour every Tuesday night and visitation with them one weekend of every month. In May of 2009, Miller was found to be in contempt of court for willfully violating the February 2009 order regarding visitation and telephone access. As a result, an arrest warrant was issued.

While the Harrises sought to enforce their visitation rights in the Marion Circuit Court, Miller sought to terminate the award of visitation in the Indiana courts. On May 11, 2009, the Indiana court entered an order denying Miller’s petition to terminate visitation due to her “unclean hands by failing to appear in the Marion Circuit Court (Kentucky) on May 4, 2009.”

On July 30, 2009, the Marion Circuit Court convened a custody hearing at which the Harrises and Miller testified along with other witnesses. Miller brought T.P.S. to the courthouse that day and asked the court to interview him, however, she did not bring S.R.S. with her. Counsel for the Harrises had previously asked that both children be made available to speak with the court. After confirming the age and whereabouts of both children, the court decided it would not interview either child.

The court entered twelve pages of findings of fact, conclusions of law and judgment on October 22, 2009. Thereafter, Miller moved the court to order a new trial or alternatively, amend the judgment and add new findings of fact. The court denied the motion for a new trial, but did amend the judgment to incorporate additional findings of fact. This appeal followed. We affirm.

Kentucky Rules of Civil Procedure (CR) 52.01 directs that “[flindings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” A judgment “supported by substantial evidence” is not “clearly erroneous.” Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky.1998). Substantial evidence is defined as “evidence of substance and relevant consequence, having the fitness to induce conviction in the minds of reasonable men.” Kentucky State Racing Commission v. Fuller, 481 S.W.2d 298, 308 (Ky.1972).

In reviewing the trial court’s decision, we must determine whether it abused its discretion by awarding custody of the children to their great uncle and aunt. An abuse of discretion occurs when a trial court enters a decision that is arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky.2000); Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999). We will not substitute our own findings of fact unless those of the trial court are “clearly erroneous.” Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky.1986). Further, with regard to custody matters, “the test is not whether we would have decided differently, but whether the findings of the trial judge were clearly erroneous or he abused his discretion.” Eviston v. Eviston, 507 S.W.2d 153, 153 (Ky.1974); see also Cherry v. Cherry, 634 S.W.2d 423 (Ky.1982).

When the choice of custodian is between non-parents, as in this case, Kentucky courts seek the result that is in the best interests of the child. Kentucky courts have not expressed a preference for relatives in non-parent custody eases. Williams v. Phelps, 961 S.W.2d 40 (1998). Therefore, Miller does not have an automatic advantage by being the children’s maternal grandmother. Additionally, Robert, by being the maternal great uncle of the children is also a blood relative. Further, KRS 403.270 provides, in relevant part:

(2) The court shall determine custody in accordance with the best interests of the child and equal consideration shall be given to each parent and to any de facto custodian. The court shall consider all relevant factors including:
(a) The wishes of the child’s parent or parents, and any de facto custodian, as to his custody;
(b) The wishes of the child as to his custodian;
(c) The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interests;
(d) The child’s adjustment to his home, school, and community;
(e) The mental and physical health of all individuals involved;
(3) The court shall not consider conduct of a proposed custodian that does not affect his relationship to the child.

Close reading of the statute reveals the trial court must consider ALL relevant factors, not just those listed in KRS 403.270(2). After considering the factors enumerated in the statute, the trial court concluded it was in the best interests of S.R.S. and T.P.S. to be in the sole custody of the Harrises with Miller having reasonable visitation. Our task is to determine whether that conclusion is supported by substantial evidence.

We focus first on Miller. She is a sixty-year-old woman who has lived in public housing in Indiana for the last eight years. She has not held a paying job in the last two decades and relies upon $676.00 in monthly supplemental security income benefits plus Medicaid and food stamps. She does not have reliable transportation. She is currently single but has been married and divorced four times and is the mother of four children, one of them deceased. When she divorced the father of her children in 1985, he received custody of all four children. Miller has resided in Indiana for all but one year of the children’s lives. She testified T.P.S. had lived with her for four years while Coffey was dealing with substance abuse issues but she offered no corroborating evidence or dates.

Miller has a long history of substance abuse convictions including: driving under the influence (DUI), third offense, in December of 1997; DUI, second offense, in June of 1994; DUI, first offense, in March of 1994; alcohol intoxication in a public place in November of 1994; and two counts of trafficking in a controlled substance (Xanax) within 1,000 yards of a school in September of 1995. She was given a two-year sentence that was probated for two years on the trafficking conviction. She was also convicted of theft by deception.

Coffey’s twenty-year-old daughter, Renee Baldwin, testified she had observed Miller in July of 2007 smoke marijuana while S.R.S. and T.P.S. were in an adjoining room. She also testified she had seen Miller huff paint. Contrary to Baldwin’s testimony, Miller testified she has been sober for four years and had not used marijuana in the last seven years.

Baldwin lives in Campbellsville where she is a college student. She is a half-sister to S.R.S. and T.P.S. and is very close to them. For a period of time, she saw her half-siblings on a weekly basis. Her ability to interact with them would suffer if custody were awarded to Miller because they would be living in Indiana.

Miller’s health is suspect. Each day she takes eight prescribed medications for heartburn, headaches, hypertension, high cholesterol and diabetes. More than twenty years ago she was declared disabled by the Social Security Administration due to arthritis, high blood pressure and other ailments.

Miller has repeatedly violated court orders by thwarting the Harrises weekly telephone contact, weekend visitation, and Spring Break visitation with the children. She refused to accept phone calls from the Harrises, changed her phone number and did not provide the new number to the Harrises. When Penick was ordered by the Marion Circuit Court to return the children to Kentucky and enroll them in school, Miller refused to release them.

We turn our attention now to the Har-rises who have been married to one another for more than fifty years and have two adult children, four grandchildren and two great grandchildren. Robert is 68 years old. His brother, Melvin, was the children’s grandfather; Robert is their great uncle. Robert takes medication for an inner ear problem and one daily pill for hypertension. He is retired from Buck-horn Coal and the City of Campbellsville. He and Opal live in Campbellsville, Kentucky, in the same three-bedroom home they have owned for thirty-eight years.

Opal is 70 years of age. She retired from Fruit of the Loom after thirty-five years of service. She takes one pill for high blood pressure. Together, Opal and Robert draw about $2,700.00 each month in Social Security benefits and private pension/retirement benefits. Neither has been convicted of any offense but a traffic infraction and neither has a history of illegal drug or alcohol use. Opal was close to Coffey and took care of S.R.S. during various periods of her life. Opal routinely took S.R.S. to church and saw her during the week. In 2004, she and Robert had temporary custody of S.R.S. for about eight months. The Harrises did not have contact with T.P.S. while they had custody of S.R.S. They did not have any contact with Coffey or Miller during this time either.

On appeal, Miller alleges the trial court made four mistakes in awarding custody to the Harrises. First, she claims the court misapplied KRS 408.270 in awarding custody to the Harrises. In her brief, she sets forth KRS 403.270 in its entirety but fails to explain how the trial court abused its discretion or clearly erred in awarding custody to the Harrises. In its conclusions of law, the trial court explained its analysis of the statutory factors it considered in determining the custody award that was in the best interests of S.R.S. and T.P.S. The statutory factors considered included health of the parties; the children’s interaction with family members; and the children’s adjustment to home, school and community. Two statutory factors were not considered — the wishes of the biological parents were unknown because the mother was deceased and the father did not testify; the children’s wishes were not considered due to their young ages. Finally, no party alleged de facto custodian status and there were no allegations of domestic violence. The trial court’s award of custody to the Harrises is fully supported by the record and therefore does not constitute an abuse of discretion or clear error.

Miller’s second argument is that the trial court erred in failing to interview the children. We begin by noting that only one of the children, T.P.S., was brought to the courthouse during the custody hearing on July 30, 2009, and made available to speak with the court. Counsel for the Harrises was adamant in arguing that he had previously asked that both children be made available to talk with the court, however, Miller conveniently did not bring S.R.S. to the hearing. Counsel for the Harrises further suggested Miller was willing to let the court interview T.P.S. because he would likely say he wanted to stay with Miller. We also note a lack of precision in Miller’s statement of preservation of this issue. Miller says that during the custody hearing she requested “the Court to interview the children[.]” We have listened to the hearing in its entirety. Miller asked the court to interview T.P.S.; she never asked the court to speak with S.R.S. and never asked the court to interview the “children.”

At the time of the hearing, S.R.S. was six years of age and T.P.S. was eight. Miller has cited no authority requiring a trial court to interview a child; she relies solely upon KRS 403.270(2)(b) which directs a court to consider the child’s wishes in awarding custody. However, the Har-rises have cited us to Brown v. Brown, 510 S.W.2d 14, 16 (Ky.1974), where in a divorce proceeding, the trial court chose not to interview a seven-year-old boy. In affirming the judgment, the appellate court wrote, “[i]t is discretionary as to whether or not the trial judge should interview a child. We cannot say that the trial court abused its discretion in this matter.” Id. The same holds true in the case at bar.

Miller’s third assertion is that the court gave insufficient weight to her testimony that the children lived in and attended school in Indiana with Miller for more than a year and were visited weekly by their father during that time. Earlier in this opinion we cited Golightly for the proposition that the trial court is in the best position to weigh witness credibility. While there was some evidence that the children lived in Indiana for a period of time and attended school there, it cannot be ignored that by order of the Marion Circuit Court these children were to be in the custody of Debra Penick in Kentucky during this time. Additionally, there was considerable testimony about the amount of time the children, particularly S.R.S., had spent with the Harrises in Kentucky and the close bond the children shared ■with the older half-sister, a college student in Campbellsville. In light of all the evidence, we cannot say the trial court’s award of custody to the Harrises was clear error or an abuse of discretion.

Miller’s final complaint is that the trial court considered aspects of her conduct that did not affect the children. Miller found it particularly egregious that counsel for the Harrises focused on her significant history of substance abuse. We disagree. KRS 403.270 directs the trial court to consider “relevant factors.” Importantly, it does not restrict the court’s consideration to events occurring within the children’s lives or within a particular span of time. Thus, any factor that affects a potential custodian’s “relationship to the child” is to be considered.

S.R.S. was born a crack baby. She was removed from her mother’s custody at least three times because of substance abuse issues. Miller herself has a history of abusing drugs and alcohol, including three DUI convictions, one conviction for alcohol intoxication in a public place, and one two-count conviction for trafficking in Xanax. These were not childhood dalliances. These crimes occurred well into adulthood. As recently as 2007, her granddaughter, Renee Baldwin, watched her smoke marijuana while S.R.S. and T.P.S. were in an adjoining room of her home in Indiana. This testimony contradicted Miller’s testimony at the custody hearing that she had not smoked marijuana in the last seven years. Miller also testified she had been sober for the last four years. Miller may disagree, but these convictions are part and parcel of who she is and the type of influence she may exert over S.R.S. and T.P.S. The trial court did not err in considering her criminal record in awarding custody.

Based upon the foregoing, we affirm the judgment of the Marion Circuit Court.

ALL CONCUR.

      . The Harrises filed a notice of appeal but refer to themselves solely as "Appellees” and did not assert any new allegations in their brief. Therefore, we assume the Harrises abandoned their cross-appeal.

      . There is no de facto custodian in this case.