Kentucky Court Report - SCOKY & COAKY

Appeals: Preserving error on appeal (instructions, manifest injustice, as applied to judge issues re unjust enrichment and piercing the corporate veil

The following published decision addresses the failure to preserve error on appeal relative to instructions.  The issues surrounded preserving the error, manifest injustice; within the context of unjust enrichment and piercing the corporate veil. 

KILLIAN V. TUNACAKES PROPERTIES, INC.
COA, PUBLISHED
JAN. 20, 2012

Killian also argues that the trial court erred in allowing a jury instruction on unjust enrichment. Although it is unclear, it appears that Killian is arguing that, by allowing the jury instruction on unjust enrichment, the trial court implicitly pierced the corporate veil, allowing Killian to be held personally liable.

The unjust enrichment jury instruction read as follows: INSTRUCTION NO. 6
Are you satisfied from the evidence that:

a) That SJK, SK Development, LLC and Steven Killian have each benefitted, and have continued to benefit economically by the acquisition of Settlers Trace and that such acquisition would not have been possible unless Tunacakes had agreed to enter into the Consulting Agreement with SJK;
b) That SJK, SK Development, LLC and Steven Killian have each benefitted, and continued to benefit economically by the [sic] purchasing Settlers Trace and that said acquisition would not have been possible unless Tunacakes accepted the Promissory Note from SJK;
c) SJK, SK Development, LLC and Steven Killian, continue to use, possess and/or otherwise enjoy the benefits of an income producing business and property, which would not have been available, but for Tunacakes’ acceptance of the payment terms of the Consulting Agreement and Promissory Note; and
d) To prevent unjust enrichment, SJK, SK Development, LLC and Steven Killian, are jointly and severally liable for full restitution to Tunacakes in amounts now due and owing under the payment terms of the Consulting Agreement and Promissory Note.

Initially, we note that Killian’s brief fails to include a statement on how he preserved this issue for appeal as required by Kentucky Rule of Civil Procedure (CR) 76.12(4)(c)(v). It is not the burden of the Court to search the record to find proof of the Appellants’ claims. See Phelps v. Louisville Water Co., 103 S.W.3d 46, 53 (Ky. 2003). Having carefully reviewed the record, we note that this issue was not preserved for review because Killian did not timely object to the unjust enrichment instruction. Pursuant to CR 51(3), the time to object to jury instructions is prior to the court instructing the jury. As stated in Harris v. Thompson, 497 S.W.2d 422, 431 (Ky. 1973), “if the appellants were not satisfied with any phase or portion of the instructions the time to speak was before they were given to the jury.” Further, “a general objection without specification is insufficient to preserve the [alleged] error.” Burgess v. Taylor, 44 S.W.3d 806, 814 (Ky. App. 2001).

A review of the record reflects that Killian made an objection to the jury instruction on unjust enrichment, but only argued that Tunacakes had not presented sufficient evidence to support a finding of unjust enrichment. Killian did not argue that, by allowing an unjust enrichment instruction, the trial court would be implicitly finding that the corporate veil should be pierced. Although it does appear that Killian raised this issue in his motion to alter, amend or vacate the judgment, an objection to a jury instruction raised for the first time in a post-trial
motion is not timely. Burgess, 44 S.W.3d at 814. Therefore, this issue is not properly preserved for our review.

Because this issue was not properly preserved, our review is confined to manifest injustice. As set forth in Carrs Fork Corp. v. Kodak Min. Co., 809 S.W.2d 699, 701 (Ky. 1991):
Civil Rule 61.02 provides that palpable error which affects the substantial rights of a party may be considered by the reviewing court even though insufficiently raised or preserved for review and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error. In applying this rule, the palpable error must result from action taken by the court rather than an act or omission by the attorneys or litigants.
Further, manifest injustice exists only if the error “so seriously affected the fairness, integrity, or public reputation of the proceeding as to be ‘shocking or jurisprudentially intolerable.’” Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky. 2009) (quoting Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006)). We believe that the jury instruction on unjust enrichment resulted in a manifest injustice.

First, we note that any jury instruction on unjust enrichment is improper because unjust enrichment is an equitable doctrine, Dodson v. Key, 508 S.W.2d 586 (Ky. 1974), and the application of an equitable doctrine to the facts of a case is a question of law. Daniels v. CDB Bell, LLC, 300 S.W.3d 204, 210 (Ky. App. 2009). Accordingly, the question of whether Killian, SK Development, and SJK Properties were unjustly enriched, if it were an appropriate inquiry, should not have been decided by the jury but by the trial court.

Next, we note that unjust enrichment is not an available remedy to Tunacakes with regard to SK Development and SJK Properties. The doctrine of unjust enrichment “is applicable as a basis of restitution to prevent one person from keeping money or benefits belonging to another.” Haeberle v. St. Paul Fire & Marine Ins., 769 S.W.2d 64, 67 (Ky. App. 1989) (citations omitted). However, when “an express contract is made defining the circumstances under which an obligation may arise with reference to a certain subject matter such contract excludes the possibility of an implied contract concerning the same matter.” Sparks Milling Co. v. Powell, 283 Ky. 669, 672, 143 S.W.2d 75, 76 (1940). Therefore, any recovery must be under the terms of the express contract. Id. In this case, there was a written contract that set forth the obligations of SK Development and SJK Properties to Tunacakes. Thus, unjust enrichment was not an available remedy for Tunacakes as to SK Development and SJK Properties.

Finally, we conclude that unjust enrichment, as used in this case, imposed personal liability on Killian thereby piercing the corporate veil. As noted by this Court in Daniels, 300 S.W.3d at 211, “piercing the corporate veil” is “the judicial act of imposing personal liability on otherwise immune corporate officers, directors, and shareholders for the corporation’s wrongful acts, . . .” (Quoting 18 C.J.S. Corporations § 14 (2008)). “[T]he decision as to whether to pierce the corporate veil is an equitable one to be decided by the trial court and not the jury.” Id. at 213.

Based on the preceding, Killian could not be held personally liable until the trial court determined that the corporate veil could be pierced. Having carefully reviewed the record, we note that the trial court did not make such a finding. Absent such a finding, the unjust enrichment instruction, which allowed the jury to hold Killian personally liable for the liabilities of SK Development and SJK Properties, resulted in a manifest injustice. Accordingly, we remand this case for the trial court to determine whether the corporate veil can be pierced. If the corporate veil cannot be pierced, then a finding that Killian was unjustly enriched would be inappropriate because Killian cannot be held personally liable. If the trial court determines that the corporate veil can be pierced, then there need not be a determination as to whether Killian was unjustly enriched. Killian would be personally and contractually liable for the wrongful acts of SK Development and SJK Properties. As previously noted, because Tunacakes would have contractual remedies, the equitable remedy of unjust enrichment would not apply.

Defenses: Res Judicata and Collateral Estoppel

PRICE V. YELLOW CAB CO. OF LOUISVILLE
COA, PUBLISHED
JAN. 20, 2012

Res judicata is an affirmative defense that bars repetitious suits involving the same cause of action. Yeoman v. Commonwealth, Health Policy Board, 983 S.W.2d 459, 464 (Ky. 1998). The Supreme Court of Kentucky defined this doctrine in City of Louisville v. Louisville Professional Firefighters Ass’n, Local Union No. 345, IAFF, AFL-CIO, 813 S.W.2d 804, 806 (Ky. 1991), as follows: “Under the doctrine of res judicata or ‘claim preclusion,’ a judgment on the merits in a prior suit involving the same parties or their privies bars a subsequent suit based upon the same cause of action.” The City of Louisville Court then cited to Newman v. Newman, 451 S.W.2d 417, 419 (Ky. 1970), in which the former Court of Appeals addressed the elements of res judicata:

The general rule for determining the question of res judicata as between parties in actions embraces several conditions. First, there must be identity of the parties. Second, there must be identity of the two causes of action. Third, the action must be decided on its merits. In short, the rule of res judicata does not act as a bar if there are different issues or the questions of law presented are different.

City of Louisville, 813 S.W.2d at 806. In City of Covington v. Board of Trustees of Policemen's and Firefighters' Retirement Fund of City of Covington, 903 S.W.2d 517, 521 (Ky. 1995), the Supreme Court addressed the doctrine of collateral estoppel:

Collateral estoppel is closely related to the doctrine of res judicata. The latter may be used to preclude entire claims that were brought or should have been brought in a prior action, while the doctrine of collateral estoppel only applies to issues actually litigated. Offensive collateral estoppel refers to the successful assertion by a party seeking affirmative relief that a party to a prior adjudication who was unsuccessful on a particular issue in that adjudication is barred from relitigating the issue in a subsequent proceeding. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.4, 99 S.Ct. 645, 649 n. 4, 58 L.Ed.2d 552 (1979). Defensive use occurs when a defendant seeks to prevent a plaintiff from asserting a claim the other plaintiff had previously litigated and lost against another defendant. Id.

Defenses: COA in NPO decision addresses immunity issue re bullying charges and supervision of students

FLORENCE V. L.P.
COA NPO
JAN. 20, 2012

STUMBO, JUDGE: Joyce Florence, Mike Ernst, and Michael Bayless (hereinafter collectively referred to as the appellants) appeal from an order denying summary judgment based on qualified official immunity. These appellants argue that they are entitled to immunity based on state and federal grounds. L.P. (hereinafter referred to as Mother),2 argues that the appellants are not entitled to immunity, or at a minimum, that there are still genuine issues of material fact that preclude the grant of summary judgment. We find that the trial court incorrectly denied summary judgment to the appellants and reverse and remand with instructions to grant summary judgment in favor of all three appellants.

There are two cases that Jane Doe relies on to show that the supervision of students is ministerial. Those are Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001), and Williams v. Kentucky Dept. of Educ., 113 S.W.3d 145 (Ky. 2003). We find these two cases distinguishable, for the same reasons the Kentucky Supreme Court did in Turner, supra.

Although we consider [Appellant’s] conduct in this case to be discretionary, we recognize the apparent incongruity with our precedent regarding a supervisory duty in the public school setting, as “we have held that a claim of negligent supervision may go to a ministerial act or function in the public school setting.” However, Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001)[,] and Williams [v. Kentucky Dept. of Educ.], 113 S.W.3d 145 [(Ky. 2003)]-the cases relied upon in enunciating the public school distinction-have quite different facts from those before us.
In Yanero, this Court deemed “enforcement of a known rule requiring that student athletes wear batting helmets during baseball batting practice” to be ministerial. Unlike the teacher’s decision-making in this case, a helmet requirement constitutes “an essentially objective and binary directive.” As a result, “[t]here is no substantial compliance with such an order and it cannot be a matter of degree: its enforcement was absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts.” You do it or you don’t-and unlike here, there is no factual determination required for its application.

Admittedly, [in Williams] we have also “rejected the notion that the failure of teachers ... to supervise their students in the face of known and recognized misbehavior was a discretionary act.” This decision stemmed from the requirement in KRS 161.180(1) that teachers must “hold pupils to strict account for their conduct on school premises, on the way to and from school, and on school sponsored trips and activities.” The dispute in this case, though, concerns the means of supervision rather than a failure to supervise students who were drinking and driving to and from a school- sponsored function as occurred in Williams.
Turner at 876-877(citations omitted). In the case at hand, the appellants’ supervision of the students required more discretionary actions than requiring a student to wear a helmet during batting practice, as in Yanero. Further, the appellants did not fail to supervise and discipline students, as was the case in Williams. As is clear from the evidence of record consisting of depositions, e-mails exchanged by Mother to the school staff, and transcripts of telephone calls, the appellants all took action when notified by Mother of her belief that her daughter was being bullied and harassed. Florence acted by meeting with teachers to see if they knew about the harassment and to direct them to monitor Doe and Student 1. She also directly asked Doe if there was anything Doe needed to tell her about the incidents or if Doe would like her to follow up later. Florence gave Doe an administrative pass that would allow her to leave class anytime she felt uncomfortable or anxious and had Student 1’s schedule changed so he and Doe would not be in the same class. Florence also called and e- mailed Mother in order to keep her informed and to gather more information.

Public officials are presumed to have performed their duties in good faith. Rowan County, supra; Koscot Interplanetary, Inc. v. Commonwealth, by Allphin, 649 S.W.2d 201, 202 (Ky. 1983). Although Doe’s brief suggests bad faith on the part of the appellants, the record of appellants’ conduct from the first incident brought to their attention in mid-January until Mother removed Doe from Crawford in mid-April contains not an instance of disrespectful or unconcerned conduct toward Doe or her mother. On the contrary, what is notable in review of the e-mail and recorded conversations between the appellants and Mother and between the appellants and other school personnel is the respectful, concerned tone which the appellants maintained even as the tone of Mother increasingly reflected her escalating frustration due to her perceptions of Doe’s victimization. However, a concerned parent’s conclusion that her child is being victimized does not make it so. What is legally significant is that her concerns were heard and the appellants took steps to determine whether Doe was being bullied and to stop or prevent any bullying.
In discussing the conduct of school officials following the carnage at the hands of Michael Carneal, the James Court stated:

Any of the conduct engaged in by the teachers, administrators and Board members can be properly classified as discretionary as they personify the type of acts which are intended to receive protection. Without such protection, the ability of those entrusted with the education of our children to perform the varied functions fundamental to their employment would be hindered. The conduct exhibited by the school appellees inherently required conscious evaluation of alternatives, personal reflection and significant judgment. By definition, their actions were discretionary. In this circumstance, their judgment may arguably be questionable, particularly with the benefit of hindsight, but applying such an unrealistic standard is not only unjust, it’s unauthorized.

James, at 909-10. In this case, there is no allegation that known rights were violated or
that malice and/or corruption were responsible for the conduct of the school personnel. Consequently, neither the appellants’ actions nor any inaction resulted from bad faith. The Kentucky Supreme Court has stated, [i]t is imperative that teachers maintain the discretion to teach, supervise, and appropriately discipline children in the classroom. To do this, they must have appropriate leeway to do so, to investigate complaints by parents, or others, as to the conduct of their students, to form conclusions (based on facts not always known) as to what actually happened, and ultimately to determine an appropriate course of action, which may, at times, involve reporting the conduct of a child to the appropriate authorities. In fact, protection of the discretionary powers of our public officials and employees, exercised in good faith, is the very foundation of our doctrine of “qualified official immunity.”

Turner at 876. Based on the foregoing, we find that the trial court incorrectly denied
summary judgment for the appellants. We therefore reverse and remand this case with instructions to grant the appellants’ motions for summary judgment due to qualified official immunity.

Causes of Action: Malicious Prosecution

The Court of Appeals in a nonpublished decision addressed malicious prosecution relative to lack of probable cause by the defendant to have brought criminal charges against the plaintiff.  See Whitlock v. Haney, COA, NPO, Jan. 20, 2012.

[T]there are six basic elements necessary to the maintenance of an action for malicious prosecution:

(1) the institution or continuation of original judicial proceedings, either civil or criminal, or of administrative or disciplinary proceedings, (2) by, or at the instance, of the plaintiff, (3) the termination of such proceedings in defendant’s favor, (4) malice in the institution of such proceeding, (5) want or lack of probable cause for the proceeding, and (6) the suffering of damage as a result of the proceeding.

Raine v. Drasin, 621 S.W.2d 895, 899 (Ky. 1981). Historically, the tort of malicious prosecution is one that has not been favored in the law. Prewitt v. Sexton, 777 S.W.2d 891, 895 (Ky. 1989); Reid v. True, 302 S.W.2d 846, 847–848 (Ky. 1957). Accordingly, one claiming malicious prosecution must strictly comply with the elements of the tort. See Prewitt, 777 S.W.2d at 895; Raine, 621 S.W.2d at 899.

In granting the directed verdict for Haney, the trial court concluded that Whitlock had failed to show that Haney lacked probable cause for bringing the criminal complaint. Where the indictment is based upon other testimony than that of the prosecutor alone, the indictment creates a rebuttable presumption of probable cause. Davidson v. Castner-Knott Dry Goods Co., Inc., 202 S.W.3d 597, 607 (Ky. App. 2006), citing Conder v. Morrison, 275 Ky. 360, 121 S.W.2d 930, 931 (Ky. App. 1938). The trial court analyzed Haney’s grand jury testimony and found nothing which could be characterized as untrue.

* * *

The plaintiff in a malicious prosecution action has the burden of establishing a lack of probable cause. Collins v. Williams, 10 S.W.3d 493, 496 (Ky. App. 1999). Where the facts are undisputed, whether probable cause is generally a question of law for the court to decide. Id. However, the trial court essentially concluded that Haney’s omission of facts would not rebut the grand jury’s finding of probable cause. We disagree.

2012 COA: Jan. 20, 2012 COA Minutes

Jan. 20, 2012 COA Minutes --  Nos. 59-83 (25 decisions; 7 published)

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PUBLISHED DECISIONS OF COA:

61.  CRIMINAL LAW; SEARCH AND SEIZURE
ARTIS (ANTONIO)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
WINE (PRESIDING JUDGE)
MOORE (CONCURS) AND STUMBO (CONCURS)
2010-CA-000437-MR
TO BE PUBLISHED
CHRISTIAN

WINE, JUDGE: Antonio Artis appeals from his conditional plea of guilty in the Christian Circuit Court to possession of marijuana (while armed), possession of a handgun by a convicted felon, and operating a motor vehicle on a revoked or suspended license. On appeal, Artis challenges the denial of his motion to suppress under Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009), and argues that the trial court erroneously applied the “good faith” exception to the exclusionary rule. Upon review, we affirm the Christian Circuit Court.

62.  CRIMINAL LAW
JOHNSON (FLOYD GROVER)
VS.
COMMONWEALTH OF KENTUCKY
OPINION REVERSING AND REMANDING
CAPERTON (PRESIDING JUDGE)
TAYLOR (CONCURS) AND CLAYTON (CONCURS)
2010-CA-000607-MR
TO BE PUBLISHED
POWELL

CAPERTON, JUDGE: Floyd Grover Johnson appeals from the denial of his motion to dismiss the indictments for three counts of first-degree trafficking in a controlled substance, second or subsequent offense, and one count of delivery of drug paraphernalia, due to a lack of jurisdiction and the correspondingly entered conditional guilty plea. Johnson was sentenced to ten years of imprisonment.

After a thorough review of the parties’ arguments, the record, and the applicable law, we reverse and remand.

66.  UNJUST ENRICHMENT.  APPEALS (PRESERVING ERROR IN JURY INSTRUCTIONS)
KILLIAN (STEVEN)
VS.
TUNACAKES PROPERTIES, INC.,
ET AL.
OPINION REVERSING AND REMANDING
KELLER (PRESIDING JUDGE)
STUMBO (CONCURS) AND VANMETER (CONCURS)
2010-CA-001396-MR
TO BE PUBLISHED
SPENCER

KELLER, JUDGE: Steven Killian (Killian) appeals from a judgment of the Spencer Circuit Court based upon a jury verdict in favor of Tunacakes Properties, Inc. (Tunacakes). For the reasons set forth below, we reverse and remand.

After a five-day trial, the jury returned a verdict in favor of Tunacakes on all claims against SK Development, SJK Properties, and Killian. Specifically, SJK Properties was found liable to Tunacakes in the amount of $42,391.67 for breach of the Consulting Agreement, and SK Development and SJK Properties were found to be jointly liable to Tunacakes in the amount of $150,000 for breach of the Promissory Note. The jury also determined that SK Development, SJK Properties, and Killian were unjustly enriched and were jointly and severally liable for full restitution to Tunacakes.

The trial court subsequently entered a judgment consistent with the jury’s verdict. On June 28, 2010, Killian filed a motion to alter, amend, or vacate the judgment arguing that Killian could not be held personally liable for the judgments against SK Development and SJK Properties. The trial court denied that motion. This appeal followed.

For the foregoing reasons, we reverse the Judgment of the Spencer Circuit
Court and remand for a new trial. Prior to trial, the court must first determine whether the corporate veil should be pierced. Regardless, Tunacakes is not entitled to an unjust enrichment jury instruction.

 67.  CRIMINAL LAW
WEST (KEVIN)
VS.
COMMONWEALTH OF KENTUCKY
OPINION VACATING AND REMANDING
CLAYTON (PRESIDING JUDGE)
STUMBO (CONCURS) AND THOMPSON (CONCURS)
2010-CA-001477-MR
TO BE PUBLISHED
CAMPBELL

CLAYTON, JUDGE: Kevin West appeals from a Campbell Circuit Court judgment entered upon a conditional guilty plea convicting him of one count of first-degree possession of a controlled substance, first offense. Because we agree with West that his Fourth Amendment rights were violated when a police officer asked him to step from his car following a routine traffic stop, we vacate the judgment of conviction and remand for further proceedings consistent with this opinion.

70.  CIVIL PROCEDURE.  AFFIRMATIVE DEFENSES, RES JUDICATA.
PRICE (RACHEL)
VS.
YELLOW CAB CO. OF LOUISVILLE
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
CLAYTON (CONCURS) AND DIXON (CONCURS)
2010-CA-001894-MR
TO BE PUBLISHED
JEFFERSON

LAMBERT, JUDGE: Rachel Price has appealed from the opinion and order of the Jefferson Circuit Court granting summary judgment in favor of Yellow Cab Co. of Louisville and dismissing her complaint on the basis of res judicata. We have carefully considered the record as well as the parties’ arguments in their briefs, and we find no merit in Price’s appeal. Therefore, we affirm the circuit court’s opinion and order.

This case presents us with an unusual situation where the subject matter of the second suit was certainly raised in the prior suit, while the specific causes of actions alleged in the complaint were not actually pled. We must agree with Yellow Cab that because Price actually raised the issue of its alleged fraudulent misrepresentation regarding Garcia’s whereabouts in her prior suit and she was actually successful in obtaining a reversal of the dismissal of the suit based solely upon this argument, she is precluded from bringing claims on this subject matter in a subsequent case. There is nothing in the record, other than Price’s mere assertion in her response to the motion to dismiss and again in her brief, to support her statement that Yellow Cab requested that the misrepresentation issue be severed from the personal injury claim for trial. The record of the trial in the prior action was not certified as a part of the record on appeal, and we have no way to verify this self-serving statement. “It is the appellant's duty to present a complete record on appeal.” Steel Technologies, Inc. v. Congleton, 234 S.W.3d 920, 926 (Ky. 2007). Therefore, we hold that the circuit court did not commit any error as a matter of law in dismissing Price’s complaint.

72.  ADMINISRATIVE AND REGULATORY LAW.
COMMONWEALTH OF KENTUCKY, ET AL.
VS.
HANDI-VAN, INC., ET AL.
OPINION VACATING AND REMANDING
COMBS (PRESIDING JUDGE)
NICKELL (CONCURS) AND LAMBERT (CONCURS)
2010-CA-001925-MR
TO BE PUBLISHED
BOONE

COMBS, JUDGE:    The Commonwealth of Kentucky, Transportation Cabinet, Department of Vehicle Regulation; and Jerry Anglin, acting Commissioner, (collectively, “the Cabinet”) appeal from an order of the Boone Circuit Court dismissing the Cabinet’s petition for declaratory rights. After our review, we vacate and remand.

In order to promote fairness in administrative hearings, the General Assembly created a division of the OAG that is a special “pool of hearing officers for assignment to the individual agencies at their request, for the conduct of administrative hearings.” KRS 15.111; KRS 13B.010(8). See Underwood, supra, at 362. KRS 13B.030 provides the procedures for an agency to use in contracting for hearing officers from the OAG and other agencies. The Cabinet availed itself of this option in utilizing a hearing officer from the OAG. It properly complied with both law and procedure.
We conclude that the Boone Circuit Court erred in dismissing the Cabinet’s petition for declaration of rights. We vacate its order and remand for entry of a new order.

77.  BUSINESS LAW. REAL PARTY IN INTEREST. STANDING. APPEALS.
BRUNER (KENNETH A.)
VS.
DISCOVER BANK
C/O DFS SERVICES, LLC
OPINION VACATING AND REMANDING
MOORE (PRESIDING JUDGE)
NICKELL (CONCURS) AND THOMPSON (CONCURS)
2011-CA-000197-MR
TO BE PUBLISHED
JEFFERSON

MOORE, JUDGE: On May 4, 2009, DFS Services, LLC, filed this collection action in Jefferson Circuit Court against Kenneth A. Bruner, naming itself “Discover Bank” in its complaint and thereafter referring to itself as “Discover Bank c/o DFS Services, LLC” in all of its subsequent pleadings. In substance, DFS’s complaint alleged that Bruner owed Discover Bank a credit card debt of $9,464.82, had defaulted upon that debt, and that Discover Bank was due 19.8% interest on that debt from Bruner pursuant to the terms of a cardmember agreement between Discover Bank and Bruner.1    In part, Bruner responded by asserting that DFS had no standing to sue as a real party in interest, per Civil Rule (CR) 17.01.2 Bruner also requested, approximately 17 months subsequent to when DFS filed its complaint, that the court order this matter submitted to arbitration pursuant to the terms of the cardmember agreement.

After a period of motion practice, DFS moved for summary judgment. In its order granting DFS summary judgment, the circuit court noted that Bruner had raised the issue of DFS’s standing to sue as a real party in interest. Nonetheless, the circuit court held that the evidence of record conclusively established that “Discover Bank is the owner of the subject debt and the real party in interest,” and that “Mr. Bruner is liable to Discover Bank for the claimed debt.” In the same order, the circuit court also denied Bruner’s request to arbitrate. Thereafter, Bruner appealed. After careful review, we vacate and remand.

 

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60.  BULLYING CLAIM. IMMUNITY OF GOVERNMENT OFFICIALS.
FLORENCE (JOYCE)
VS.
L. (P.)
OPINION REVERSING AND REMANDING
STUMBO (PRESIDING JUDGE)
SHAKE (CONCURS) AND LAMBERT (DISSENTS)
2010-CA-000003-MR
2010-CA-000004-MR
NOT TO BE PUBLISHED
FAYETTE

STUMBO, JUDGE: Joyce Florence, Mike Ernst, and Michael Bayless (hereinafter collectively referred to as the appellants) appeal from an order denying summary judgment based on qualified official immunity. These appellants argue that they are entitled to immunity based on state and federal grounds. L.P. (hereinafter referred to as Mother),2 argues that the appellants are not entitled to immunity, or at a minimum, that there are still genuine issues of material fact that preclude the grant of summary judgment. We find that the trial court incorrectly denied summary judgment to the appellants and reverse and remand with instructions to grant summary judgment in favor of all three appellants.

76.  TORTS.   MALICIIOUS PROSECUTION.
WHITLOCK (ARTHUR)
VS.
HANEY (LARRY W.) SR.
OPINION REVERSING AND REMANDING
WINE (PRESIDING JUDGE)
ACREE (CONCURS) AND CLAYTON (CONCURS)
2011-CA-000062-MR
NOT TO BE PUBLISHED
CARTER

WINE, JUDGE: Arthur Whitlock appeals from an order of the Carter Circuit Court granting a directed verdict and dismissing his malicious prosecution claim against Larry Haney, Sr. Whitlock argues that there were issues of fact concerning whether Haney lacked probable cause to bring a criminal charge against him. We agree with Whitlock that Haney’s omission of material facts in his grand jury testimony may support a finding that he lacked probable cause to bring the criminal charge. Because this is an issue of fact, we conclude that the trial court erred by granting a directed verdict for Haney. Therefore, we reverse and remand for a new trial on this issue.

2012 COA: Jan. 13, 2012 COA Minutes

  Jan. 13, 2012 COA Minutes --  Nos. 26-58 (33 decisions; 3 published)

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PUBLISHED DECISIONS OF COA:

33. REAL PROPERTY. CONVENANCE. CHAMPTERY.
HENNINGER (MARY KAY), ET AL.
VS.
BREWSTER (SUZY)
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
CLAYTON (CONCURS) AND WINE (CONCURS)
2010-CA-001110-MR
TO BE PUBLISHED
PULASKI

"ACREE, JUDGE: Appellants Mary Kay and Brent Henninger appeal the Pulaski Circuit Court’s entry of summary judgment in favor of Appellee Suzy Brewster claiming the circuit court erred in determining no genuine issues of material fact exist with respect to Appellee’s champerty defense under Kentucky Revised Statute (KRS) 372.070(1). Finding no error, we affirm."

40.  CRIMINAL LAW
LUKJAN (SUSAN KAY)
VS.
COMMONWEALTH OF KENTUCKY
OPINION REVERSING AND REMANDING
ACREE (PRESIDING JUDGE)
TAYLOR (CONCURS IN RESULT ONLY) AND VANMETER (CONCURS)
2010-CA-001509-MR
TO BE PUBLISHED
JEFFERSON

"ACREE, JUDGE: Susan Lukjan appeals the July 23, 2010 judgment of the Jefferson Circuit Court by which she was convicted of arson, burning personal property to defraud an insurer, and committing a fraudulent insurance act over $300;1 the judgment followed a jury trial and sentenced Lukjan to serve a total of twelve years of imprisonment. The bases for her appeal are a variety of trial errors  outlined below. Finding certain of her arguments persuasive, we reverse the conviction and remand the matter to the circuit court for a new trial."

"Ordinarily, a trial court’s determination as to whether a witness is qualified to give expert testimony under Kentucky Rules of Evidence (KRE) 702 is subject to an abuse of discretion standard of review. See Farmland Mut. Ins. Co. v. Johnson, 36 S.W.3d 368, 378 (Ky. 2000); Fugate v. Commonwealth, 993 S.W.2d 931, 935 (Ky. 1999); Murphy by Murphy v. Montgomery Elevator Co., 957 S.W.2d 297, 299 (Ky. App. 1997). “An abuse of discretion occurs when a ‘trial judge’s decision [is] arbitrary, unreasonable, unfair, or unsupported by sound legal principles.’” Farmland Mut. Ins. Co., 36 S.W.3d at 378 (quoting Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000))."

"In this instance, however, we are reviewing the circuit court’s interpretation of a statute and do so de novo. Bob Hook Chevrolet Isuzu, Inc. v. Commonwealth Transp. Cabinet, 983 S.W.2d 488, 490 (Ky. 1998). The circuit court’s interpretation of the statutes in question, therefore, is owed no deference."

"Accordingly, we reverse the order of the circuit court finding Hicks could not testify on the basis of KRS 329A.015, reverse Lukjan’s conviction, and remand the case for a new trial. On remand, the circuit court must consider whether any of Lukjan’s proffered experts, including Hicks, qualify, based on the guidelines found in KRE 702 and accompanying caselaw. Under those standards, licensure is not necessary, but may be a factor. See Fugate v. Commonwealth, 993 S.W.2d 931 at 935.5"

"Without the Commonwealth’s three arson experts, there was little direct evidence that the fire was the result of arson, rather than some other cause. Indeed, the testimony of the witnesses now at issue was powerful given their positions of esteem and authority. As a result, the absence of their testimony would have seriously weakened the Commonwealth’s case, and we, therefore, cannot say the error was harmless. We reverse the circuit court’s decision to admit the specialized evidence presented by the Commonwealth without either conducting a preliminary hearing or examining the portions of the record which would have enabled the court to determine the reliability and relevance of the evidence."

"Lukjan’s witness, presented as an expert on fire scene investigations, was improperly excluded on the basis of KRS 329A.015. In addition, the circuit court improperly admitted the opinion testimony of three of the Commonwealth’s expert witnesses without conducting a preliminary hearing or reviewing an adequate record. Finally, the financial documents found in the trash can outside Campbell’s Gourmet Cottage were not obtained as the result of an illegal search of the property, and the lightning-strike report was correctly excluded because it is not a business record.

For the foregoing reasons, we reverse Lukjan’s conviction and remand for a new trial."

49.  TRIAL. DIRECTED VERDICT.
NICHOLS (MICHAEL)
VS.
HAZELIP (MICHAEL), ET AL.
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
KELLER (CONCURS) AND STUMBO (CONCURS)
2010-CA-002168-MR
TO BE PUBLISHED
JEFFERSON

"VANMETER, JUDGE: Michael Nichols appeals from a judgment entered by the Jefferson Circuit Court after a jury rendered a verdict in favor of Michael Hazelip and Steven Gregson, regarding a physical altercation that took place between the parties. For the reasons stated hereafter, we affirm."

"Nichols filed a complaint against Gregson and Hazelip for assault and battery, seeking damages related to a shoulder injury he claimed was worsened as a result of the altercation. Gregson filed a counterclaim against Nichols alleging assault. After the presentation of evidence, the parties moved for directed verdicts, which the trial court denied, but ruled that Nichols’ request for damages regarding his shoulder injury was not to be submitted to the jury since he failed to prove any injury was caused by the altercation. The jury found Nichols to be the initial aggressor in the incident, found in favor of Gregson on his counterclaim and awarded $50,000 in compensatory damages for pain and suffering and $200 in punitive damages. This appeal followed.

Nichols’ first argument on appeal is that the trial court erred by denying his motion for a directed verdict in regards to Gregson’s counterclaim. Specifically, Nichols alleges that (1) Gregson could not recover damages for mental suffering absent evidence of a physical injury or contact, and (2) the evidence demonstrated that Gregson was the aggressor in the physical altercation. We disagree."

"Next, Nichols argues he should have been granted a new trial because defense counsel questioned a witness regarding Nichols’ insurance coverage and questioned Nichols regarding his prior psychiatric care. Nichols fails to address how either question resulted in prejudice so as to affect his substantial rights, i.e., affected the outcome of the case. See CR 61.01 (a court “must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties[]”). Thus, we fail to appreciate how this claim of error warrants a new trial.

Nichols’ next argument is that the trial court erred by allowing both Gregson and Hazelip four peremptory strikes since their interests were not antagonistic under CR 47.03. We disagree."

"To determine if coparties have antagonistic interests, courts consider three factors: “1) whether the coparties are charged with separate acts of negligence[]; 2) whether they share a common theory of the case[]; and 3) whether they have filed cross-claims.” Sommerkamp, 114 S.W.3d at 815 (internal citations omitted). The court shall consider other factors, including “whether the defendants are represented by separate counsel; whether the alleged acts of negligence occurred at different times; whether the defendants have individual theories of defense; and whether fault will be subject to apportionment.” Id."

=====================================================

TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

IF YOU WANT

• WORKERS COMPENSATION LAW UPDATES, I RECOMMEND YOU GO TO THE COMP ED WEB SITE AT http://www.comped.net/.
• FAMILY LAW UPDATES, I RECOMMEND YOU GO TO Diana Skaggs' Divorce Law Journal at http://www.divorcelawjournal.com

30. CIVIL PROCEDURE.  DEFAULT JUDGMENT.
MONTIES RESOURCES, LLC, ET AL.
VS.
EMECO EQUIPMENT (USA), LLC
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING IN NO 2010-CA-001285-MR; AFFIRMING IN 2010-CA-000598-MR; AND AFFIRMING 2010-CA-001286-MR
ACREE (PRESIDING JUDGE)
CLAYTON (CONCURS) AND WINE (CONCURS)
2010-CA-000598-MR
2010-CA-001285-MR
2010-CA-001286-MR
NOT TO BE PUBLISHED
KNOX

51.  TORTS.  IMMUNITY.
HUMPHREY (KRISTIN), ET AL.
VS.
SAPP (KIM)
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
STUMBO (CONCURS) AND VANMETER (CONCURS)
2010-CA-002278-MR
NOT TO BE PUBLISHED
JEFFERSON

"KELLER, JUDGE: Kristin Humphrey (Kristin), individually and as next friend of L.H. and M.H., and Jason Humphrey (Jason), individually and as next friend of L.H. and M.H. (collectively the Humphreys), appeal from the trial court's summary judgment in favor of Kim Sapp (Sapp). On appeal the Humphreys argue that the court incorrectly determined that Sapp has immunity. Having reviewed the record, we affirm."

 

2012 COA: Jan. 6, 2012 COA Minutes -- Nos. 1-25 (25 decisions; 3 published)

 Jan. 6, 2012 COA Minutes --  Nos. 1-25 (25 decisions; 3 published)

• Click on the above link for the full text of minutes with link to full text of each decision.
• Cick here for AOC page with current minutes and archived minutes links

PUBLISHED DECISIONS OF COA:

3.  CRIMINAL LAW
BOWLIN (JOSEPH)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AND ORDER DENYING MOTION TO DISMISS AND VACATING AND REMANDING
LAMBERT (PRESIDING JUDGE)
CAPERTON (CONCURS) AND KELLER (CONCURS IN RESULT ONLY)
2009-CA-001956-MR
TO BE PUBLISHED
GALLATIN

"LAMBERT, JUDGE: Joseph Bowlin appeals from the order of the Gallatin Circuit Court revoking his conditional discharge and imposing a five-year sentence for his conviction for flagrant nonsupport. Based upon the Supreme Court of Kentucky’s recent opinion of Commonwealth v. Marshall, 345 S.W.3d 822 (Ky. 2011),1 we must hold that the circuit court abused its discretion in revoking.  Bowlin’s conditional discharge because it failed to provide him with his due process rights. Therefore, we vacate the circuit court’s order."

13.  EMPLOYMENT LAW.  POLICE OFFICERS.
BEAVERS (BILLY)
VS.
CITY OF BEREA, KENTUCKY, ET AL.
OPINION AFFIRMING
WINE (PRESIDING JUDGE)
TAYLOR (CONCURS) AND CAPERTON (DISSENTS AND FILES SEPARATE OPINION)
2010-CA-001522-MR
TO BE PUBLISHED
MADISON

"WINE, JUDGE: Billy Beavers appeals an order of the Madison Circuit Court granting summary judgment against him on claims of wrongful discharge and due process violations following his termination as a police officer. He argues that his termination violated the due process and hearing protections afforded to police officers under Kentucky Revised Statutes (KRS) 15.520. We agree with the trial court that KRS 15.520 only applies when disciplinary action is taken against a police officer based upon a citizen complaint. Since Beavers’ termination resulted from an internal police investigation without a citizen complaint, the provisions of KRS 15.520 do not apply. Hence, we affirm."

15
SAYLOR (GREGORY)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
TAYLOR (CONCURS) AND THOMPSON (CONCURS)
2010-CA-001705-MR
TO BE PUBLISHED
KENTON

"LAMBERT, JUDGE: Gregory Saylor appeals from the Kenton Circuit Court’s denial of his motion seeking post-conviction relief. After careful review, we affirm the orders of the Kenton Circuit Court.

In his brief to this Court, Saylor argues that his trial counsel’s failure to object to the trial court’s failure to rule on the motion for directed verdict prevented him from getting a ruling on the Commonwealth’s “wanton murder” theory. Saylor argues that since his defense was self-protection, it was ineffective assistance of counsel for trial counsel not to pursue a ruling once the issue was raised by a directed verdict motion. It is not clear exactly what Saylor is arguing amounted to ineffective assistance of counsel, and he makes no mention of how the crime scene evidence was presented at trial. Thus, we are not sure exactly what error Saylor is alleging on appeal and his claim appears to be different than the claim presented to the trial court in his RCr 11.42 motion. It is well established that a defendant is not “permitted to feed one can of worms to the trial judge and another to the appellate court.” Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976) (citations omitted) (overruled on other grounds by Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 2010)). Thus, Saylor’s argument that he received ineffective assistance of counsel when his trial counsel failed to object regarding his motion for directed verdict is without merit."

=====================================================

TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

IF YOU WANT

• WORKERS COMPENSATION LAW UPDATES, I RECOMMEND YOU GO TO THE COMP ED WEB SITE AT http://www.comped.net/.
• FAMILY LAW UPDATES, I RECOMMEND YOU GO TO Diana Skaggs' Divorce Law Journal at http://www.divorcelawjournal.com

2.  SOVEREIGN IMMUNITY.
MERCER COUNTY FISCAL COURT, ET AL.
VS.
DEAN (KAREN), ET AL.
OPINION REVERSING AND REMANDING
WINE (PRESIDING JUDGE)
ACREE (CONCURS) AND LAMBERT (CONCURS)
2009-CA-001933-MR
NOT TO BE PUBLISHED
MERCER

WINE, JUDGE: Mercer County Fiscal Court and Billy Humphrey, Road Supervisor of the Mercer County Road Department, appeal from the denial of their motion for summary judgment against the Appellees Karen Dean and Kenneth Dean and from the dismissal of their third-party complaint against the Appellee Michael Scull. On appeal, Mercer County and Billy Humphrey argue that they should have been granted summary judgment against the Deans on the basis of immunity and that their complaint against Scull should not have been dismissed because they are entitled to indemnity.

In the present case, Billy Humphrey enjoys official immunity. Indeed, when an officer or employee of a governmental agency is sued in his or her representative capacity, their “actions are afforded the same immunity, . . . to which the agency, itself, would be entitled[.]” Yanero, 65 S.W.3d at 522. Thus, as Mercer County is entitled to the protection of governmental immunity, so is Billy Humphrey in his official capacity as the county road supervisor. Because he was not sued individually, we need not even address the issue of whether the location and placement of a stop sign is a discretionary act. Id.
As both Mercer County and Billy Humphrey are cloaked with immunity, the circuit court is not the proper forum for the action.3    Rather, the proper forum for any claims the Deans may have against Mercer County and Billy 2 In contrast, an employee is not immune from suit for the negligent performance of a ministerial act. 3 Nevertheless, we do not find fault with the Deans’ choice of filing in the circuit court. As the Kentucky Supreme Court recently acknowledged in Nelson County Bd. of Educ., 337 S.W.3d at 622, “the soundest course [when in doubt] is to commence the action in circuit court[]” and let the courts decide whether jurisdiction lies with the courts or the Board of Claims.

Humphrey is the Board of Claims. Nelson County Bd. of Educ., 337 S.W.3d at 621. Thus, the Deans are not left without remedy. As was recently acknowledged in Nelson County Bd. of Educ., the savings statute will operate to allow the timely filing of their claims within the Board of Claims after the dismissal of the present action by the circuit court. Id. at 624; KRS 413.270.

Hence, we reverse and remand to the trial court with instructions for the court to dismiss the action with prejudice. As we are reversing for a dismissal of the action with prejudice, we need not address the issues raised on appeal by Mercer County regarding causation and the dismissal of the third-party complaint against Scull.

11.  TRIALS.  JURY QUESTIONS.
MCGILL (HELEN OGATA)
VS.
CLAY (ANTHONY), ET AL.
OPINION AFFIRMING
WINE (PRESIDING JUDGE)
TAYLOR (CONCURS) AND CAPERTON (CONCURS)
2010-CA-001280-MR
NOT TO BE PUBLISHED
CLARK

WINE, JUDGE: Helen Ogata McGill appeals from an order of the Clark Circuit Court which denied her motion for a new trial following an adverse jury verdict. McGill argues that the instructions should have explained that it had directed a verdict of liability against the Appellee, Anthony Clay. She further argues that the jury’s questions to the court clearly indicated that they were confused by the instruction and believed that liability was still at issue. As a result, McGill maintains that the trial court should have advised the jury about the directed verdict in response to their questions.

We agree with McGill that the trial court had the discretion to advise the jury about the directed verdict and to clarify the instructions when asked by the jury. Under the circumstances, it may have been a better practice had the trial court directly informed the jury that it had granted a directed verdict on liability for McGill. However, the court sufficiently informed the jury that the only issue before it was to determine McGill’s damages. Since there was substantial evidence to support the jury’s conclusion that McGill’s injuries were not caused by the automobile accident at issue, we conclude that the trial court did not clearly err or abuse its discretion by declining to elaborate further on the instructions. Hence, we affirm.

16.  TORTS.  DOG ATTACK. LANDLORD.
BRISCOE (CARL)
VS.
JOHNSON (HAYDON)
OPINION REVERSING AND REMANDING
WINE (PRESIDING JUDGE)
ACREE (CONCURS) AND CLAYTON (CONCURS)
2010-CA-001761-MR
NOT TO BE PUBLISHED
POWELL

WINE, JUDGE: Carl Briscoe, Jr., appeals from a summary judgment of the Powell Circuit Court dismissing his claims against Haydon Johnson arising from a dog attack. He argues that genuine issues of material fact remain. Upon review, we agree and reverse the judgment of the Powell Circuit Court.

We find McDonald to be directly on point with the present case. The trial court erred by finding that there was no duty without first determining whether Johnson was the landowner/landlord. The question of whether a duty arose, such as could create liability for Johnson, rests first upon whether Johnson was the landowner/landlord. A genuine issue of material fact remains as to this question. Thus, it was error for the trial court to grant summary judgment in favor of Johnson.

We note, as an aside, that we have not considered the deeds attached to Johnson’s brief in arriving at our decision today, as they are not contained in the record.1    Kentucky Rules of Civil Procedure (CR) 76.12(4)(c)(vii).

In conclusion, we reverse the summary judgment of the Powell Circuit Court and remand for further proceedings consistent with this opinion, including a determination of whether Johnson was the landowner and/or landlord of the property in question. We make no determination regarding whether a duty actually existed or was breached in this case, however.

 

Jan. 2012 Court of Appeals Argument Calendar

Click here for entire calendar for this month at AOC.

Click here for entire INDEX to COA calendars organized by month and year.

LOCATION: JEFFERSON COUNTY JUDICIAL CENTER, 10TH FLOOR APPELLATE
COURTROOM, 700 WEST JEFFERSON STREET, LOUISVILLE,
DATE: Wednesday, January 18, 2012

11:00 am
COMMONWEALTH BANK & TRUST COMPANY, ADMIN. WITH THE v MARGARET W. YOUNG
National City Bank filed a declaratory judgment action requesting the Jefferson Circuit Court to answer seven questions. One of the questions was whether Virginia’s children, beneficiaries of the trust, triggered the “no contest” provision of their mother’s trust by challenging their step-father’s right to withdraw five percent of the trust principal each year. The trial court entered a judgment on the pleadings holding that the three children’s actions did not trigger the no contest provision.

12:15 am
MARQUISA LAVANA PARTEE v COMMONWEALTH OF KENTUCKY
Upon motion by the Commonwealth, the appellant, who had been released on a recognizance bond, was ordered to submit to an in-custody evaluation at K.C.P.C. Appellant complains that she has not alleged a defense of incompetency and that it is improper for the court to change her conditions of bond to determine whether she is competent to stand trial.

LOCATION: COURT OF APPEALS COURTROOM, 360 DEMOCRAT DRIVE,
FRANKFORT, KENTUCKY
DATE: Thursday, January 19, 2012

9:00 am
DAVID LEWIS HARRIS v SUSAN ELIZABETH HARRIS
Whether circuit court erred by granting three-year extension on domestic violence order.

9:45 am
PAULA B. BROWN v LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT
Whether circuit court erred by determining that the Civil Service Commission abused its discretion by excluding certain evidence.

10:30 am
BRYAN FULLER v JOANN BLAIR
Whether appellee was “owner” of dog within meaning of KRS 258.235.

11:15 am
STEVEN L. BESHEAR, IN HIS OFFICIAL CAPACITY v LOUISVILLE SOCCER ALLIANCE, INC.
Did trial court err by determining that the Executive Branches transfer of Charitable Gaming funds to the General Fund unconstitutional?

LOCATION: POWELL COUNTY CIRCUIT COURTROOM, COURTHOUSE, 525
WASHINGTON STREET, STANTON, KENTUCKY
DATE: Monday, January 30, 2012

11:00 am
BRITTANY ANNE CONLEY v JAMES B. BOWLING
Conley argues that the trial court erred by failing to grant her reasonable visitation rights and by granting her counsel’s motion to withdraw.

11:45 am
DELLA SUE WILLIAMS v DEPARTMENT OF HIGHWAYS TRANSPORTATION CABINET
MOR appeal from grant of summary judgment in condemnation suit where issue of ownership of property is contested on basis of adverse possession by one of cotenants. Issues are whether summary judgment is supported by the record and whether, in condemnation case for a small portion of land, ownership of the whole can be litigated or whether adverse possession can be applied to only part of a tract of land.

BLOG UPDATE: Some information on how we (I) do things behind the curtains of the Court Report

Talking to that "Man" behind the curtain. 

Some have asked me what methods do I employ in preparing this blog.

Time.  It takes time, but not all of my time and much less than you might imagine since I take advantage of many of the resources and materials prepared by others and simply convert, consolidate, and co-opt many useful sources of information available on the net.

System.

The AOC pages are my primary sources:

• MINUTES:  The minutes are prepared monthly for the Supreme Court and weekly for the Court of Appeals (these links are to pages where the minutes are indexed by year and month).
  
  The minutes are multiple page ADOBE (tm) documents listing the decisions, orders, etc. from the respective appellate court with HOT LINKS to the published and non published decisions in full text and which are maintained at and by the AOC.
  
  • The Supreme Court minutes are posted the third Thursday of each month when the SCOKY is in session and following their "court week". 
    
    • The published and not to be published decisions are numbered sequentially from month to month for the entire year, starting anew the next calendar year.
    • Each numbered decision lists for each case, the name, action number, ruling (vacate, affirm, etc), the author of the opinion (if not a memorandum opinion), the dissenterts, the county of the original decision (unless from Workers Comp), and most importantly a HOT LINK to the actual decision which is maintained at the AOC in PDF format.
      • Other matters listed in the SCOKY Minutes include:
      • MDR's (Motions for Discretionary Review) grants and denials
      • Petitions for Rehearings - grants and denials
      • Court Orders
      • Motions to transfer rulings
      • Attorney/Judicial Disciplinary Matters (many with HOT LINKS to the order)
  • The Court of Appeals Minutes are posted each Friday.
    • A sequential numbering system is used with links to the full-text of the decisions.
    • Orders (without hot links) re: petitions for rehearing, dismissals, corrections, etc.
  • WHAT DO I DO?
    
    I try to post a link within a week to the minutes, and to make matters a little more useful I post a short synopsis (copied text from the actual decision) to give the reader some insight into the PUBLISHED cases, to include a link directly to the full text decision.
    
    I also do a "Tort Report" for the nonpublished decisions addressing civil issues on insurance, torts, procedure, etc.  Workers Comp and Family law decisions can be located elsewhere at other sites:
    • WORKERS COMPENSATION LAW UPDATES, I RECOMMEND YOU GO TO THE COMP ED WEB SITE AT http://www.comped.net/.
    • FAMILY LAW UPDATES, I RECOMMEND YOU GO TO Diana Skaggs' Divorce Law Journal at http://www.divorcelawjournal.com
• ARGUMENT CALENDARS:  The Argument calendars are posted by year and month at the AOC with the links to the respective months posted/updated when the argument calendars are finalized and set.  Although all the links may be HOT, not all calendars are final and many for the future are blank.
  
  
  • Links
    • SCOKY
    • COA
      
  • The calendars list the dates, times, locations, and case information (name, county, counsel, issues) for each scheduled argument.  No links to the case information or the underlying order/opinion etc.
  • SCOKY's arguments are available for real time web watching.
    However, they are not yet saved for furture watching, and you must watch the calendar for the time.  Due to broadcasting/streaming delay, the start times are a few minutes off for the net observers.
  • I tried capturing these for a while and cleaning them up a little but it was too hard to set up the time and schedule to "capture" them.  I am thinking of simply asking for the DVD of each argument that I think would be interestings and post some selectively, but I am dependent upon AOC releasing them.  This might even be useful for selected COA arguments. Click here for some samples, I tried back in 2009.
    
    
  • BRIEFS!
    Appellate briefs for SCOKY are posted at the Northern Kentucky University, Salmon P. Chase College of Law ( Click here).   Although, it looks as if COA briefs are posted also, I have not been successful in my searches for them.  Any help would be appreciated.
  • WHAT DO I DO?
    
    I try and post a link to the actual calendar with a short summary of the calendar extracted for ease of review listing dates and times, location, case name and ISSUES.

This is enough for one post.  More later addressing the "Monthly Summaries" of Published Decisions by SCOKY and COA (which can be a month or so after the minutes which is why I do the brief but borrowed synopsis of the published decisions), extracts of "Causes of Action" and "Standards of Review" culled from various decisions, Press Releases, etc.

For the moment, I have leaned away from too much opinions of my own on these pages, but sometimes I just can't help myself.

Again, I hope all of you have enjoyed this service and have found it useful in your practice.

Michael L. Stevens
Attorney at Law
Isaacs and Isaacs, PSC
900 Cherokee Road
Louisville, KY 40204

(502)458-1000

2011 SCOKY and COA Combined Minutes Binder

 I have combined all the Kentucky Supreme Court Minutes AND the Court of Appeals Minutes into two separate and searchable PDF files.

Click on this link to Download 2011_SC_MIN_Binder.

Click on this link to Download 2011_COA_Min_Binder.

 

ATTOREY DISCIPLINE FOR SEPTEMBER 2011 (from SCOKY Monthly Summaries)

VI. ATTORNEY DISCIPLINE

A. Kentucky Bar Association v. David L. Helmers

2011-SC-000106-KB September 22, 2011

All sitting. All concur. The Court permanently disbarred Respondent David L. Helmers from the practice of law in this Commonwealth for violations of SCR 3.130-1.4(b), SCR 3.130-1.8(g), SCR 3.130-2.1, SCR 3.130-5.2(a), SCR 3.130-8.3(a), and SCR 3.130-8.3(c). These ethical violations occurred while Respondent negotiated settlements with clients involved in a class action lawsuit against a drug manufacturer. While Respondent was relatively new to the practice of law and was acting under the direction of senior attorneys when these violations occurred, the Court found that these violations were so basic and egregious that Respondent should have known that his course of conduct was unethical.

B. Kentucky Bar Association v. Fielding E. Ballard III

2011-SC-000213-KB September 22, 2011

Opinion and Order Suspending Respondent from the Practice of Law. All sitting; all concur. Ballard was suspended from the practice of law for a total of 120 days for his conduct in two consolidated KBA case files. At all relevant times, Ballard was the Commonwealth’s Attorney for the 53rd Judicial Circuit. In the first KBA file, Ballard represented a creditor in a civil suit against a debtor. The debtor claimed partial payment of the debt to the creditor’s manager. At the same time, Ballard obtained an indictment against the creditor’s manager for possession of two forged checks on the creditor’s account. The Supreme Court held that a 60-day suspension was warranted for the conflict of interest.

 

In the second KBA file, Ballard mishandled three felony cases – including two murder cases – in which he was appointed special prosecutor by the Attorney General. Ballard missed court appearances and other deadlines, resulting in all three cases being dismissed with prejudice. He also failed to return the case files to the Attorney General after his appointments were rescinded. The Supreme Court held that a 60-day suspension was warranted, with the two suspensions to be served consecutively for a total suspension of 120 days.

C. Kentucky Bar Association v. Ruth Ann Sebastian

2011-SC-000311-KB September 22, 2011

All sitting; all concur. The Court adopted the recommendation of the trial commissioner that Sebastian be suspended from the practice of law for 270 days. The matter stems from three separate case files, which were consolidated. Sebastian violated SCR 3.130-1.3, -16(d), -1.9(a), -8.1(b), and -3.4(c).

D. Kentucky Bar Association v. Terence K. Mulliken

2011-SC-000229-KB September 22, 2011

All sitting; all concur. Respondent was convicted of promoting contraband in the first degree and conspiracy to trafficking in a controlled substance in the second degree in 2004 due to the convictions he was temporarily suspended from the practice of law. The Trial Commissioner concluded that Mulliken had violated the former SCR 3.130-8.3(b) by his conviction in the Pike Circuit Court. The Trial Commissioner concluded that he should remain suspended until he is fully released from probation and parole, and for five years thereafter. Further, it was recommended that Mulliken be evaluated by an appropriate substance abuse professional and also be required to enter into a five-year agreement with the Kentucky Lawyer Assistance Program (KYLAP). Finally, in light of Mulliken's ongoing seven-year suspension and his employment record, the Trial Commissioner recommended the five-year suspension be probated upon his release from probation and parole and on the condition that he follow the requirements set forth in a KYLAP contract.

E. Kentucky Bar Association v. David R. Schott

2011-SC-000261-KB September 22, 2011

All sitting; all concur. The Court ordered Respondent permanently disbarred for multiple ethical violations stemming from real estate transactions with a client. Additionally Respondent has a history of disciplinary action and failed to respond to all attempts to communicate regarding his multiple violations.

F. Kentucky Bar Association v. Michael Ray McDonner

2011-SC-000350-KB September 22, 2011

All sitting; all concur. Respondent was suspended from the practice of law for failure to comply with CLE requirements. Respondent continued to engage clients and failed in two cases to adequately represent said clients. Court adopts the recommendation of the Board to suspend Respondent for 60 days and require him to complete the EPEP offered by the KBA.

G. Kentucky Bar Association v. Donald L. Richardson

2011-SC-000353-KB September 22, 2011

All sitting; all concur. Respondent failed to file a mortgage for three years and when he filed it with the County Clerk it contained a forged notary clause. Court adopted the recommendation of the trial commissioner to suspend Respondent for 5 years

September 2011 SCOKY MONTHLY CASE SUMMARY REPORT

Published Opinions Kentucky Supreme Court August 2011

The case summary report is created by the staff of the Supreme Court of Kentucky for the convenience of the bench and bar.  Every effort is made to present accurate information, including status of the case, as of the date of posting.  The most recent status for cases can be found on the Supreme Court, Court of Appeals, or other legal research websites.  Before citing any case, the user should always read the entire opinion and ensure that the case is final.  CR 76.28.

• January 2011
• Febrary 2011 - none
• March 2011
• April 2011
• May 2011
• June 2011
• July 2011 - none
• August 2011
• September 2011
  

PUBLISHED OPINIONS KENTUCKY SUPREME COURT

September 2011

I. CRIMINAL LAW

A. Kenneth Jones v. Commonwealth of Kentucky

2009-SC-000221-MR September 22, 2011

Opinion of the Court by Justice Schroder. All sitting; all concur. The defendant was found guilty but mentally ill of murder for shooting a neighbor on the neighbor’s property. The defendant argued at trial that he shot the neighbor in self defense. Over defense objection, the Commonwealth received a “no duty to retreat” jury instruction on behalf of the victim. The instruction was based on KRS 503.055(3), and stated that a person who is not engaged in an unlawful activity and has a right to be in a place has no duty to retreat and has the right to stand his ground and meet force with force, including deadly force, if necessary to prevent death or great bodily harm or to prevent a felony involving the use of force.

The Supreme Court reversed the conviction, holding that KRS Chapter 503 (General Principles of Justification), when viewed as a whole, was meant to apply to the conduct of the person who is subject to criminal prosecution, and not to the conduct of the victim. Without deciding whether a defendant would be entitled to a “no duty to retreat” instruction, the Court held that the instruction was erroneous when given on behalf of the victim. The Supreme Court also held that the trial court did not abuse its discretion in excluding evidence about the defendant’s delusions while he was in jail, and that it was improper for the prosecutor to ask the defendant to comment on the veracity of certain witnesses. The Court reversed and remanded for a new trial.

B. Scott Richard Stanton v. Commonwealth of Kentucky

2010-SC-000102-MR September 22, 2011

Opinion of the Court by Justice Abramson. All sitting. Following the denial of his motion to suppress his confession, the defendant pled guilty to charges that he raped and sodomized his stepson. Upholding the trial court’s suppression ruling, the Supreme Court held that the defendant’s confession was not coerced by a social worker’s accurately informing him that unless he cooperated with investigators the defendant’s two other children could be removed from the home. Chief Justice Minton and Justices Cunningham, Noble, Scott and Venters concurred. Justice Schroder concurred in result only.

C. Ronnie D. Walker v. Commonwealth of Kentucky

2010-SC-000409-MR September 22, 2011

Opinion of the Court by Justice Abramson. All sitting; all concur. Defendant was convicted, among other things, of burglary and murder for having entered his ex-girlfriend’s home where he beat and strangled to death the ex-girlfriend’s boyfriend. Upholding the conviction, the Supreme Court held (1) that the introduction into evidence of the defendant’s entire interrogation video, including the interrogator’s questions and comments, did not violate the evidence rules and was not unduly prejudicial; (2) that the trial court’s opening remarks concerning how a witness’s credibility might be assessed did not amount to palpable error; and (3) that the burglary instruction was not ambiguous so as to call into question the jury’s unanimity.

D. Linvil Curtis Turpin v. Commonwealth of Kentucky

2010-SC-000550-MR September 22, 2011

Opinion of the Court by Justice Abramson. All sitting; all concur. Defendant was convicted of being a felon in possession of a firearm and was found to be a first-degree persistent felony offender. Because of his PFO status, he was given an enhanced sentence of twenty years. Upholding the sentence, the Supreme Court held that a twenty-year sentence for a third felony offense, even if all the offenses were class-D felonies and non-violent, did not violate the state and federal constitutional guarantees against cruel and unusual punishment.

E. Thomas York, Sr. v. Commonwealth of Kentucky

2010-SC-000240-MR September 22, 2011

Opinion of the Court by Justice Cunningham. All sitting; all concur. Particular characteristics of a person's voice - such as tone, accent, or speech impediment - are physical characteristics. Therefore, the Fifth Amendment is not implicated where a defendant is required to demonstrate his voice for the jury so that a witness may make a courtroom identification. Any possible prejudice is further reduced where the defendant utters an innocuous phrase, rather than repeating words alleged to have been spoken by the defendant previously.

F. Reginald Lamont Whittle v. Commonwealth of Kentucky

2009-SC-000787-MR September 22, 2011

Opinion of the Court by Justice Noble. Whittle was convicted of possession of marijuana, trafficking in cocaine, tampering with physical evidence, and being a first-degree persistent felony offender.

The police observed Whittle running away from them and tossing a bag containing white powder onto the sidewalk. The white powder was later determined by the state crime lab to be cocaine. The chemist at the state crime lab who authored the report identifying the powder as cocaine was unable to testify at trial because he was ill, and so the director of the lab testified in his place. The director read from and discussed the report, which was then admitted into evidence.

Applying the recent U.S. Supreme Court cases Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) and Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011), this Court held that Whittle was entitled to confront the chemist who wrote the report. The violation of Whittle’s right to confrontation was not harmless error with respect to the charges of trafficking in cocaine and tampering with physical evidence, but it was harmless with respect to the charge of possession of marijuana. Accordingly, the convictions for trafficking and tampering were reversed, and the conviction for possession of marijuana was affirmed. Because the two felony convictions were reversed, the PFO conviction was also vacated. Chief Justice Minton and Justices Abramson, Cunningham, Scott and Venters concurred. Justice Schroder concurred in result only.

G. James Demetrius Mullins v. Commonwealth of Kentucky

2010-SC-000263-MR September 22, 2011

Opinion of the Court by Justice Noble. All sitting, all concur. Mullins was convicted of murder, tampering with physical evidence, and being a persistent felony offender in the first degree. The charges arose from the shooting death of a man who went to a house to buy marijuana. Mullins admitted that he had been on the porch of the house when the shooting occurred but denied any involvement.

Mullins’s conviction for tampering with physical evidence was based on evidence that he removed the murder weapon from the crime scene. There was evidence that Mullins was the shooter, that he got into a friend’s car immediately after the shooting, that he was seen with a shiny object in his hand when he got in the car, and that a police search at the scene several months after the shooting failed to turn up a gun. But this evidence was not enough to support a charge of tampering under KRS 524.100 without evidence of some additional act demonstrating an intent to conceal. The statute requires that a defendant destroy, mutilate, conceal, remove, or alter physical evidence with intent to impair its availability. Simply leaving the crime scene with the weapon does not show an intent to impair its availability; instead, it is reasonable to infer that the defendant’s primary intent was to get himself away from the scene. Accordingly, the Court reversed Mullins’s conviction for tampering.

Mullins’s other assignments of error were without merit. The conviction for murder was affirmed, and the case was remanded to Fayette Circuit Court.

H. Larry Ordway v. Commonwealth of Kentucky

2009-SC-000479-MR September 22, 2011

Opinion of the Court. All sitting. Following the execution of a search warrant at defendant’s girlfriend’s apartment, police found sufficient evidence to link defendant to a string of robberies, burglaries, and thefts. At trial, defendant was convicted of three counts of first-degree robbery, ten counts of third-degree burglary, six counts of TBUT over $300, receiving stolen property and PFO I, and was sentenced to a total of 70 years. On appeal, defendant argued that the Commonwealth was collaterally estopped from litigating the issue of whether he was armed during the robberies because he was acquitted on the charge of possession of a handgun by a convicted felon; that his constitutional rights were violated by the search of his girlfriend’s apartment; that the jury instructions on nine counts of burglary in the third degree were improper; and that he was erroneously convicted of two thefts arising from a single offense. The Supreme Court held that collateral estoppel did not bar defendant’s prosecution for robbery and that defendant did not have standing to contest the search of his girlfriend’s apartment. However, with respect to the jury instructions, the Court held that giving identical jury instructions on nine counts of third degree burglary were improper, requiring reversal on those convictions. The Court also vacated one of defendant’s theft convictions after determining that he was erroneously convicted of two thefts arising from a single offense. Chief Justice Minton and Justices Noble, Schroder and Venters concurred. Justice Abramson concurred in result only. Justice Cunningham and Justice Scott dissented.

II. WRITS

A. Commonwealth of Kentucky v. Angela Peters

2010-SC-000074-DG September 22, 2011

Opinion of the Court by Justice Schroder. All sitting; all concur. The defendant was charged with DUI, first offense in district court. The prosecutor objected to producing the complaining witness (the arresting officer) for a pretrial conference. The district court entered an order requiring the Commonwealth to produce the arresting officer at a pretrial conference to be interviewed by the defense attorney. The Commonwealth requested a writ of prohibition from the circuit court, which was granted. The Court of Appeals overturned the writ. The Supreme Court then granted discretionary review.

The Supreme Court reversed the Court of Appeals and reinstated the circuit court’s writ of prohibition. The Court first held there would be no adequate remedy on appeal, and that the case falls in the “special cases” subcategory of writ where correction of the error is necessary in the interest of the orderly administration of justice. Upon review of the various rules dealing with criminal pretrial procedure, including RCr 8.03, RCr 7.24, and RCr 7.10 through RCr 7.20, the Court concluded that the district court acted erroneously in requiring the arresting officer to be interviewed at the pretrial conference. The Court noted, however, that given the wide discretion

B. Marcus S. Minix, Sr. v. Larry Roberts, Sherry Collier, And Marcus Minis, Jr. -

2010-SC-000583-MR September 22, 2011

Opinion of the Court by Justice Venters. Justice Noble not sitting. The Court of Appeals denied Appellant’s petition for a writ of prohibition to bar a county attorney’s operation of a mediation program to resolve criminal complaints prior to filing of formal charges. On appeal, the Supreme Court held: (1) denial of the petition was proper because a writ of prohibition may be issued only against judicial officers, and neither the county attorney nor his program’s mediator was a judicial officer; (2) the county attorney’s mediation program did not constitute an action of the district court because the district court’s jurisdiction over persons accused of a criminal offense does not arise until the issuance of a warrant or summons, or presentment of defendant to the court following a warrantless arrest; (3) original subject matter jurisdiction over actions for injunctive relief under CR 65 or actions for declaration of rights under KRS 418.040 lies within the circuit court, not the Court of Appeals. Chief Justice Minton and Justices Abramson, Cunningham and Schroder concurred. Justice Scott concurred in result only.

 III. FAMILY LAW

A. Saeid Shafizadeh v. Honorable Jerry J. Bowles, Judge Jefferson Circuit

Family Court

2010-SC-000747-MR September 22, 2011

Opinion of the Court by Justice Cunningham. All sitting; all concur. Supreme Court affirmed the Court of Appeals’ denial of Appellant’s petition for a writ of prohibition. Pursuant to their divorce decree, Appellant and his ex-wife had joint custody of their children. Appellant’s wife sought court approval to relocate with the children outside of the jurisdiction. Appellant claimed that the relocation constituted a modification of custody. Supreme Court held that a joint custodial parent’s relocation with children outside the jurisdiction is properly construed as a modification of timesharing, not custody, as long as the other parent’s decision making authority for the children is unaltered.

 B. Suzanne Anderson v. Joseph Johnson

2010-SC-000646-DGE September 22, 2011

Opinion of the Court by Justice Noble. All sitting. The Franklin Circuit Family Court denied Anderson’s motion for a change in timesharing of the parties’ minor child to allow her to relocate with the child. The Court of Appeals affirmed the denial. Anderson argues that the family court’s order cannot stand because no findings of fact were made. Johnson responds that no findings of fact are required for a motion pursuant to CR 52.01, and he further responds that Anderson has failed to preserve any issues for appeal.

This Court held that, although a motion for modification of timesharing or visitation is termed a “motion,” it is actually an “action[] tried upon the facts without a jury” under CR 52.01. Thus, specific findings of fact and separate conclusions of law are required.

This Court further held that Anderson was not required under CR 52.04 to file a motion with the family court requesting findings of fact, because the family court made no findings of fact at all. CR 52.04 applies if the court makes a good faith effort to make findings of fact but misses some key fact in its findings. In such a situation, the litigant must assist the court by requesting that specific finding. In this case, the family court made no findings of fact, and so CR 52.04 does not apply and Anderson was properly before this Court. Chief Justice Minton and Justices Cunningham, Schroder and Scott concurred. Justices Abramson and Venters concurred in result only.

IV. BOARD OF CLAIMS

A. Patricia Greene, et al. v. Commonwealth of Kentucky, Administrative Office of the Courts; Honorable Jerry Winchester, Judge of McCreary Circuit Court; Charles E. King; and Kentucky Board of Claims

AND

Commonwealth of Kentucky, Administrative Office of the Courts v. Patricia Greene, et al.

2008-SC-000783-DG

2007-SC-000511-DG September 22, 2011

Opinion of the Court by Special Justice Rhoads. Chief Justice Minton and Justice Abramson not sitting. King was a Master Commissioner appointed for a four year term; he was not reappointed per statute but continued to serve in that capacity for an additional ten years. During the course of his “term” as master commissioner he criminally withheld over $300,000.00 in funds from judicial sales. Action was brought in the Board of Claims by heirs of one such sale against King, Judge Winchester (the appointing judge) and the Administrative Office of the Courts. The Board of Claims dismissed for lack of jurisdiction and the Court of Appeals affirmed on other grounds. The Court held that the Board of Claims Act authorizes suit against the all branches of the Commonwealth within the Board of Claims for negligent ministerial acts of state officers, agents and employees. Under this finding King’s acts do not meet the Act because they were intentional, whether AOC is the employer of King is moot and AOC is not the employer of Judge Winchester who is an elected constitutional officer so they are not proper parties. However, Judge Winchester failed to perform the ministerial act of reappointing King as master commissioner and verifying his bond requirement and so the claimants may bring an action in the Board of Claims to determine whether the Appellants suffered damages as a proximate cause of any alleged negligence in Judge Winchester’s ministerial duties. Allowing such a claim in the Board of Claims does not diminish Judge Winchester’s judicial immunity. Justices Schroder, Scott and Venters concurred. Justice Noble dissented by separate opinion, in which Justices Cunningham and Special Justice Connolly joined.

V. LIENS

A. The Dreamers, LLC; Willie M. Neal, Jr.; and Glenda Hoffman v.

Don’s Lumber & Hardware, Inc.

2010-SC-000227-DG September 22, 2011

Opinion of the Court by Justice Noble. All sitting; all concur. The Dreamers, LLC (“Dreamers”) allegedly failed to pay Don’s Lumber for the materials it used to build a house. Don’s Lumber obtained summary judgment against Dreamers for the debt, and the house was ordered sold. After making several unsuccessful procedural efforts to delay the sale, on the day of the sale Dreamers paid the full judgment amount of $48,309.95 to Don’s Lumber. Dreamers continued to pursue a direct appeal of the trial court’s order. Don’s Lumber filed a motion to dismiss the appeal as moot because the judgment had been paid. The Court of Appeals entered an order dismissing the appeal.

This Court granted discretionary review to consider whether a party must specifically reserve a right to appeal when paying a judgment in full in lieu of a supersedeas bond if the appeal is to continue. Although payment of a judgment can extinguish the right of appeal where the payment is part of a settlement or compromise, there must be clear and decisive evidence of such an agreement before a party will be deemed to have waived his right of appeal. Here, there was not clear and decisive evidence of waiver, and so the Court of Appeals erred in dismissing Dreamers’ appeal.

VI. ATTORNEY DISCIPLINE

A. Kentucky Bar Association v. David L. Helmers

2011-SC-000106-KB September 22, 2011

All sitting. All concur. The Court permanently disbarred Respondent David L. Helmers from the practice of law in this Commonwealth for violations of SCR 3.130-1.4(b), SCR 3.130-1.8(g), SCR 3.130-2.1, SCR 3.130-5.2(a), SCR 3.130-8.3(a), and SCR 3.130-8.3(c). These ethical violations occurred while Respondent negotiated settlements with clients involved in a class action lawsuit against a drug manufacturer. While Respondent was relatively new to the practice of law and was acting under the direction of senior attorneys when these violations occurred, the Court found that these violations were so basic and egregious that Respondent should have known that his course of conduct was unethical.

B. Kentucky Bar Association v. Fielding E. Ballard III

2011-SC-000213-KB September 22, 2011

Opinion and Order Suspending Respondent from the Practice of Law. All sitting; all concur. Ballard was suspended from the practice of law for a total of 120 days for his conduct in two consolidated KBA case files. At all relevant times, Ballard was the Commonwealth’s Attorney for the 53rd Judicial Circuit. In the first KBA file, Ballard represented a creditor in a civil suit against a debtor. The debtor claimed partial payment of the debt to the creditor’s manager. At the same time, Ballard obtained an indictment against the creditor’s manager for possession of two forged checks on the creditor’s account. The Supreme Court held that a 60-day suspension was warranted for the conflict of interest.

In the second KBA file, Ballard mishandled three felony cases – including two murder cases – in which he was appointed special prosecutor by the Attorney General. Ballard missed court appearances and other deadlines, resulting in all three cases being dismissed with prejudice. He also failed to return the case files to the Attorney General after his appointments were rescinded. The Supreme Court held that a 60-day suspension was warranted, with the two suspensions to be served consecutively for a total suspension of 120 days.

C. Kentucky Bar Association v. Ruth Ann Sebastian

2011-SC-000311-KB September 22, 2011

All sitting; all concur. The Court adopted the recommendation of the trial commissioner that Sebastian be suspended from the practice of law for 270 days. The matter stems from three separate case files, which were consolidated. Sebastian violated SCR 3.130-1.3, -16(d), -1.9(a), -8.1(b), and -3.4(c).

D. Kentucky Bar Association v. Terence K. Mulliken

2011-SC-000229-KB September 22, 2011

All sitting; all concur. Respondent was convicted of promoting contraband in the first degree and conspiracy to trafficking in a controlled substance in the second degree in 2004 due to the convictions he was temporarily suspended from the practice of law. The Trial Commissioner concluded that Mulliken had violated the former SCR 3.130-8.3(b) by his conviction in the Pike Circuit Court. The Trial Commissioner concluded that he should remain suspended until he is fully released from probation and parole, and for five years thereafter. Further, it was recommended that Mulliken be evaluated by an appropriate substance abuse professional and also be required to enter into a five-year agreement with the Kentucky Lawyer Assistance Program (KYLAP). Finally, in light of Mulliken's ongoing seven-year suspension and his employment record, the Trial Commissioner recommended the five-year suspension be probated upon his release from probation and parole and on the condition that he follow the requirements set forth in a KYLAP contract.

E. Kentucky Bar Association v. David R. Schott

2011-SC-000261-KB September 22, 2011

All sitting; all concur. The Court ordered Respondent permanently disbarred for multiple ethical violations stemming from real estate transactions with a client. Additionally Respondent has a history of disciplinary action and failed to respond to all attempts to communicate regarding his multiple violations.

F. Kentucky Bar Association v. Michael Ray McDonner

2011-SC-000350-KB September 22, 2011

All sitting; all concur. Respondent was suspended from the practice of law for failure to comply with CLE requirements. Respondent continued to engage clients and failed in two cases to adequately represent said clients. Court adopts the recommendation of the Board to suspend Respondent for 60 days and require him to complete the EPEP offered by the KBA.

G. Kentucky Bar Association v. Donald L. Richardson

2011-SC-000353-KB September 22, 2011

All sitting; all concur. Respondent failed to file a mortgage for three years and when he filed it with the County Clerk it contained a forged notary clause. Court adopted the recommendation of the trial commissioner to suspend Respondent for 5 years

Dec. 22, 2011 SCOKY Minutes posted at AOC Web Site. Click on this to access PDF.

Dec. 22, 2011 SCOKY Minutes posted at AOC Web Site.  Click on this to access PDF.

Decisions:  196-211
16 decisions with 10 published
Click here for this month's minutes (case names, questions presented for published decisions, and links to full text of each published and nonpublished decision)
Click here for an index to all monthly minutes of SCOKY.

PUBLISHED DECISIONS (Number, NAME, ISSUE AND LINK TO FULL TEXT):

196.  ELECTION LAW.  GOVERNMENTAL IMMUNITY RE 1983 ACTIONS.
STACIE L. COOK V. LISHA POPPLEWELL, ETC.
Questions Presented:
Constitutional Law. Elections. Employment discrimination. Issues include whether a 1st or 14th Amendment liberty interest protects public employees from being fired for candidacy for public office and whether county officials sued officially are immune from § 1983 actions.

197. COUNTY ROADS. STANDING.
REUBIN BAILEY V. PRESERVE RURAL ROADS OF MADISON COUNTY, INC.,
2009-SC-000417-DG MADISON
Questions Presented:
County Roads. KRS 178.116. Issues include respondents' standing to seek the resumption of county maintenance and removal of gates installed by movant where landowners who access their property via road discontinued as a county road have not petitioned jointly to close the road to public use.

198. CRIMINAL LAW. GUILTY PLEA.
LARRELL JARVOR PORTER V. COMMONWEALTH OF KENTUCKY
2010-SC-000189-MR MARION
Questions Presented:
Guilty Plea. Trafficking in a controlled substance in the first degree, possession of drug paraphernalia and second degree PFO. Trial court properly denied defendant’s motion to withdraw his guilty plea, finding it was within the Commonwealth’s discretion to offer a plea deal conditioned on the defendant waiving his right to view a video of a drug buy, in order to protect the identity of a confidential informant.

199.  WORKERS COMPENSATION. EQUAL PROTECTION AND PNEUMOCONIOSIS
VISION MINING INC. V. JESSEE GARDNER
2010-SC-000311-WC FROM COA
Questions Presented:
Workers’ Compensation. Whether KRS 342.316’s consensus procedure and “clear and convincing” evidentiary standard for overcoming an unfavorable consensus deny workers claiming benefits for coal workers’ pneumoconiosis equal protection by treating them differently than workers who claim benefits for other occupational pneumoconioses or diseases.

200. CRIMINAL LAW. SENTENCING. BAD ACTS EVIDENCE.
JAMES L. “HOPSING” MILLER V. COMMONWEALTH OF KENTUCKY
2010-SC-000562-MR ADAIR
Questions Presented:
20 year sentence upon remand for resentencing. Introduction of defendant’s prior bad acts during the penalty stage did not constitute palpable error. It was not palpable error for one armed guard to closely accompany the defendant during the resentencing.

201. CRIMINAL LAW. RESTITUTION.
THOMAS E. JONES, JR. V. COMMONWEALTH OF KENTUCKY
2010-SC-000328-MR HICKMAN
Questions Presented:
Challenge to restitution, court costs, and jail fee assessed by the trial court after accepting a guilty plea. Imposition of restitution violated defendant’s right to due process. KRS 532.032. Imposition of court costs reversed and imposition of jail fee affirmed.

202.  CRIMINAL LAW. SENTENCING.
RACHEL BLACKBURN V. COMMONWEALTH OF KENTUCKY
2010-SC-000537-MR LAWRENCE
Questions Presented:
First degree trafficking in a controlled substance and second degree PFO-40 years. Subsequent offenses run consecutively may not exceed the maximum aggregate duration allowed by KRS 532.110(1)(c). Such subsequent convictions may not run concurrent with a paroled offense.

203.  EMPLOYMENT LAW.  UNEMPLOYMENT BENEFITS. CALCULATING BASE PERIOD
KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION V. DAVID G. HAMILTON
2010-SC-000252-DG FAYETTE
Questions Presented:
KRS 341.090(2). Definition of “extended base period.” Time period for determining the wages to be used to calculate the unemployment benefits for a claimant who has suffered a job-related injury.

204.  CRIMINAL LAW.  JURISDICTION (FED VS. STATE ON DISMISSAL)
BEVERLY L. MILLER V. ADMINISTRATIVE OFFICE OF THE COURTS
2007-SC-000609-TG JEFFERSON
Questions Presented:
Decisions of federal court dismissing actions before it did not preclude state court action.

205.  CRIMINAL LAW. SENTENCING. 
DAVID HOFF V. COMMONWEALTH OF KENTUCKY
2010-SC-000167-MR CHRISTIAN
Questions Presented:
First degree rape and incest-Life sentence. Convictions reversed and case remanded for retrial because of the extensive use of inadmissible hearsay and the impermissible bolstering of the victim’s testimony.

November 2011 - Kentucky Court of Appeals Published Decisions with Digests and Links to Full Text (prepared by the AOC)

KENTUCKY COURT OF APPEALS PUBLISHED OPINIONS NOVEMBER 2011

I. ARBITRATION

A. Padgett v. Steinbrecher

2010-CA-000647 11/4/11 2011 WL 5248170

Opinion by Judge Acree; Judge Stumbo and Senior Judge Lambert concurred. The Court affirmed an order of the circuit court denying appellant’s motion to dismiss in favor of arbitration on the grounds that it lacked jurisdiction under KRS 417.200 to enforce the parties’ arbitration agreement because the agreement did not explicitly require that arbitration occur in Kentucky. The Court first held that it had jurisdiction to hear the appeal. Although the motion was styled as a motion to dismiss in favor of arbitration, as opposed to a motion to compel arbitration, the Court construed the order as an order denying a motion to compel arbitration, which was appealable under KRS 417.220(1)(a). The Court then held that because the arbitration clause failed to explicitly require arbitration in Kentucky, the circuit court correctly found that it lacked jurisdiction to enforce arbitration pursuant to KRS 417.200.

II. ATTORNEY AND CLIENT

A. Bradley v. Estate of Herman Lester

2009-CA-002157 11/10/11 2011 WL 5419696

Opinion by Judge Acree; Judge Dixon and Senior Judge Lambert concurred. The Court vacated and remanded an order of the circuit court awarding one-third of oil and gas royalties to the appellee estate pursuant to a contingency fee agreement between the deceased attorney and individuals who jointly owned an interest in the mineral rights of real property. The Court held that the attorney, who withdrew from representing the appellants, was limited to recovery on a quantum meruit basis and not under the original contingency fee agreement.

III. CIVIL PROCEDURE

A. Indian Ridge Properties, Inc. v. Schwartz, LLC No.1

2010-CA-001518 11/10/11 2011 WL 5438628

Opinion by Chief Judge Taylor; Judge Acree concurred; Judge VanMeter dissented by separate opinion. The Court affirmed an order and amended order of the circuit court dismissing appellants’ action pursuant to CR 41.02(a) for failure to prosecute. The Court held that the circuit court did not abuse its discretion by dismissing the action. More than seven years had lapsed between the finality of an appeal for which the underlying action was held in abeyance and appellants’ motion to remove the action from abeyance, no good cause was advanced for appellants’ dilatoriness and the finding of prejudice to appellees could not be considered clearly erroneous.

IV. CRIMINAL LAW

A. Agee v. Commonwealth

2010-CA-001122 11/10/11 2011 WL 5419705

Opinion by Judge Wine; Chief Judge Taylor and Judge Caperton concurred. The Court affirmed a judgment of the circuit court entered after appellant entered a guilty plea following the court’s denial of her motion to suppress evidence seized following a stop by police. The Court first held that the duration of appellant’s detention did not exceed the scope of a reasonable Terry stop and therefore, the trial court did not clearly err in finding that the search of appellant’s backpack was incident to her arrest for public intoxication. The Court then held that the search of appellant’s backpack did not exceed the scope of a permissible search incident to her arrest. Although the backpack was not on appellant’s person at the time of her arrest, she was holding the backpack at the time she was stopped, it was in the open only a few feet away and she exercised sufficient control over it to deny an earlier request to search it. Further, there was no evidence that appellant was handcuffed, fully restrained or moved to the police cruiser at the time the officers searched her backpack. The Court finally held that the officers had probable cause to arrest appellant. Although the officers could have exercised discretion in deciding whether to arrest appellant, they did not lack any reasonable, objective basis for concluding that she had committed the offense of public intoxication.

B. Harper v. Commonwealth

2009-CA-002390 11/4/11 2011 WL 5244826

Opinion by Judge Caperton; Judges Nickell and Wine concurred. The Court affirmed an order of the circuit court denying appellant’s motion for a new trial based upon the failure of the courtroom recording equipment to produce a record of his jury trial. The Court held that appellant could not decline to prepare a narrative statement pursuant to CR 75.13 and subsequently decline to participate in the trial court’s preparation of such a statement and then argue on appeal the adequacy of the record. Accordingly, the Court was required to assume the portions which were omitted supported the decision of the trial court.

C. Hensley v. Commonwealth

2010-CA-001489 11/10/11 2011 WL 5438623

Opinion by Judge Lambert; Chief Judge Taylor and Judge Dixon concurred. The Court affirmed an order of the circuit court denying appellant’s motion to compel the Department of Corrections to recalculate his sentences so that his sentences would run concurrently. The Court held that there was no authority for the Court of Appeals to convert appellant’s motion to compel into a motion to vacate his sentence or a motion under RCr 11.42 for ineffective assistance of counsel. Appellant could not argue for the first time on appeal that he received ineffective assistance of counsel or that his original request was in fact a motion to vacate judgment. Furthermore, any motion for relief under RCr 11.42 was outside the three-year limitation period and was not verified. Reviewing the motion to compel for error, the Court held that appellant did not follow the procedure required by KRS 454.415 for inmates to raise sentence calculation questions.

D. Mills v. Department of Corrections

2010-CA-001637 11/10/11 2011 WL 5419719

Opinion by Judge Lambert; Judges Dixon and VanMeter concurred. The Court affirmed an order of the circuit court dismissing appellant’s writ of mandamus, claiming that the Department of Corrections erroneously classified appellant as a violent offender, which the circuit court treated as a motion for a declaration of rights. The Court held that appellant was properly classified as a violent offender pursuant to KRS 439.3401 when he was convicted of manufacturing methamphetamine while in possession of a firearm

E. Phillips v. Commonwealth

2010-CA-000969 11/10/11 2011 WL 5419699

Opinion by Judge Lambert; Chief Judge Taylor and Judge Thompson concurred. The Court affirmed an order of the circuit court denying appellant’s motion to dismiss the charges against him for failure to comply with sex offender registration and persistent felony offender in the first degree. The Court first held that appellant had no liberty interest in parole and therefore, he was not deprived of due process of law when his parole recommendation was rescinded prior to his release and he was required to attend a sex offender treatment program. The Court next held that the circuit court did not err in concluding that appellant had not served his time on the sex offenses prior to the 1998 and 2000 amendments to the Sexual Offender Registration Act. Pursuant to KRS 532.12(1)(b), appellant was still serving his sentence for rape and sodomy when the amendments went into effect. Further, since appellant was still incarcerated when the amendments went into effect, a sex offender risk assessment was not mandated and there were no due process or ex post facto violations in the denial of his parole and requirement to register as a sex offender.

F. Rowe v. Commonwealth

2008-CA-000916 11/18/11 2011 WL 5599412

Opinion by Judge Clayton; Judges Keller and Moore concurred. The Court affirmed orders of the circuit court denying appellant’s separate motions for a new trial brought pursuant to RCr 10.02 after a jury convicted him of murder and attempted murder. The Court held that the trial court did not abuse its discretion in denying the motion for a new trial based on newly discovered evidence because appellant did not follow proper procedure when he failed to file affidavits stating the reason an enhanced version of a 911 tape was new evidence that, even with due diligence, could not have been obtained during trial. Notwithstanding the failure, the Court also held that the enhanced version of the 911 tape was not new evidence warranting a new trial since the 911 tape was presented at trial and the enhanced version would not have, with reasonable certainty, changed the result if a new trial were granted. The Court then held that the trial court did not err in denying the second motion for a new trial based on newly discovered evidence because appellant failed to follow procedural prerequisites and made the motion outside the time constraints of RCr 10.06.

V. EMPLOYMENT

A. Kentucky Unemployment Insurance Commission v. Boone County

Board of Education

2010-CA-000083 11/4/11 2011 WL 5244861

Opinion by Judge Acree; Judges Dixon and Keller concurred. The Court reversed in part, vacated in part and remanded an order of the circuit court finding that substitute teaching did not qualify as covered employment for purposes of unemployment benefits pursuant to KRS 341.055(4)(e) and KRS 341. 050(1)(a). The Court held that the trial court erred in finding that substitute teachers were “noncovered employment” categorically and as a matter of law pursuant to KRS 341.055(4)(e). The Court held that without an evidentiary hearing wherein the parties were permitted to present evidence of the nature of the employment relationship, it was impossible to determine whether the claimant was an employee as contemplated by KRS 341.050(1)(a) or an independent contractor.

B. Pearce v. University of Louisville

2009-CA-001813 11/18/11 2011 WL 5599540

Opinion by Senior Judge Lambert; Judge Wine concurred; Judge Caperton dissented by separate opinion. The Court affirmed an opinion and order of the circuit court affirming an administrative decision allowing the appellee university to terminate appellant’s employment as a university police officer. The Court first held that the university was not judicially estopped from arguing the inapplicability of KRS 15.520 when it initially conceded the point at a post-termination hearing. The university reversed its course before the administrative proceeding was over and appellant suffered no prejudice in the trial court when he was unrestricted in arguing the applicability of the statute, which was considered de novo without deference to the hearing officer’s determination. The Court then held that KRS 15.520 applied only to disciplinary actions initiated by a citizen’s complaint and not to disciplinary actions initiated by internal departmental concerns. The Court also held that procedural irregularities did not warrant reversal. Appellant could not complain that he was prejudiced by failure to follow KRS 15. 520, which was inapplicable; appellant did not suffer any prejudice with respect to an initial “review board,” which simply reviewed the circumstances regarding a fire alarm incident, as an internal investigation into possible discipline was not initiated until after the review board’s findings had been made; and appellant was not deprived of any procedural due process. Appellant’s non-participation in a pre-termination hearing because his counsel was not allowed to attend, resulted in a waiver of any claim of a due process violation emanating from the proceeding. Further, appellant suffered no prejudice to his right to defend against the charges when a comprehensive de novo post-termination hearing was held in which he was represented by counsel; he was afforded an opportunity to present evidence and witnesses and cross-examine the university witnesses; he was given, before the hearing, copies of all exhibits and names of all persons the university would call as witnesses; and when the hearing officer’s decision specifically provided that it was based exclusively upon the evidence admitted at the post-termination hearing. The Court then held that the hearing officer’s findings that appellant violated department policy in failing to respond to a report of a fire alarm, in failing to timely prepare an incident report and in pursuing a driver going the wrong way on a one-way street, and finding that appellant was incompetent, were supported by substantial evidence in the record. The Court finally held that the hearing officer’s decision to terminate appellant’s employment, as opposed to some lesser punishment, was not arbitrary and capricious.

C. Trading Post Management Company, LLC v. Kentucky Unemployment Insurance Commission

2010-CA-000453 11/4/11 2011 WL 5244939

Opinion by Judge Acree; Chief Judge Taylor and Judge Combs concurred. The Court reversed in part, vacated and remanded an opinion of the circuit court affirming an order of the Kentucky Unemployment Insurance Commission determining that the eight appellants were successors-in-interest to the tax account and tax rate of the predecessor corporation pursuant to KRS 341.540. The Court held that because the Commission improperly treated all eight LLCs as if they constituted a single business, instead of assessing the relationship between the predecessor corporation and each of the purported successors individually, the findings of the Commission were incomplete. Upon remand, the circuit court was instructed to remand the matter to the Commission for entry of an order consistent with 787 KAR 1:300, Section 2.

VI. FAMILY LAW

A. Burton v. Burton

2011-CA-000573 11/23/11 2011 WL 5865455

Opinion by Judge Lambert; Chief Judge Taylor and Judge Thompson concurred. The Court affirmed an order of the circuit court modifying the parties’ parenting time in favor of the appellee father. The Court first held that the trial court correctly treated appellee’s motion for custody as a motion to modify parenting time, as it was originally styled, when appellee did not seek to alter the joint custody arrangement but simply wanted to modify his parenting time. The Court then held that the circuit court’s findings of fact were not clearly erroneous and it did not apply incorrect law in determining the best interests of the children. The determination that it was in the children’s best interests for appellee to be the primary residential parent was supported by extensive findings of fact and the trial court was in the best position to judge the credibility of the evidence.

B. Collett v. Dailey

2010-CA-002115 11/23/11 2011 WL 5866240

Opinion by Judge Clayton; Senior Judge Lambert concurred; Chief Judge Taylor dissented by separate opinion. The Court affirmed a domestic violence order entered by the circuit court based on its finding that appellant had perpetrated acts of domestic violence against his mother. The Court held that appellant’s preventing caregivers from attending to his mother, from giving his mother her medications and food and from providing physical support and assistance to her, as well as his removal of night lights and placement of throw rugs in areas where his elderly mother would need to walk in her fragile condition, met the statutory definition of domestic violence in KRS 403.720, because it put appellee’s mother (or, in this case, her guardian) in fear of imminent physical injury and serious physical injury.

C. D.G. v. Commonwealth

2011-CA-000298 11/18/11 2011 WL 5599628

Opinion by Judge Combs; Judges Moore and Nickell concurred. The Court vacated and remanded an order of contempt and an order designating appellant to be a status offender. The Court held that the trial court improperly accepted appellant’s admission of guilt without an adequate Boykin colloquy.

VII. OPEN RECORDS

A. Eplion v. Burchett

2009-CA-001741 11/4/11 2011 WL 5244818

Opinion by Judge Acree; Judge Stumbo and Senior Judge Lambert concurred. The Court affirmed in part, reversed in part, and remanded an order of the circuit court denying appellant’s petition for a declaration that he was entitled to production of records regarding his stay at a detention center and denying appellant’s demand for assessment of a monetary penalty against various detention center officials. The Court first held that while the requested records did not exist, the circuit court erred in determining that appellant was not entitled to any relief under the Open Records Act. The Act required the agency to respond in writing, even when it was unable to supply the records requested. Therefore, appellant was entitled to relief in the form of a written explanation and an order requiring the officials to conduct additional investigation and to provide the circuit court and appellant with a written explanation of their findings. The Court then held that the circuit court did not err in denying appellant’s demand for the assessment of a monetary penalty. While the coercive effect of granting the relief was not a proper consideration under KRS 6.1882(5), appellant waived the issue of whether the officials’ noncompliance with the Open Records Act was willful when he failed to present evidence of willfulness and then failed to request that the circuit court enter findings of fact regarding the willfulness of the officials’ behavior.

VIII. PROPERTY

A. Carroll v. Carroll

2010-CA-000824 11/4/11 2011 WL 5244952

Opinion by Judge Moore; Judges Dixon and Thompson concurred. The Court affirmed an order of the circuit court denying appellants’ motion for summary judgment and granting summary judgment to appellees, finding that an easement by necessity existed and that appellees had sufficiently proven that the easement was strictly necessary. The Court held that the circuit court did not err in finding an easement by necessity existed. In the context of the facts of the case, appellees were not required to prove that they could not obtain access through any other adjoining property. The Court then held that the circuit court did not err in determining that the action was not barred by a statute of limitations and that as long as the necessity existed, an action could be maintained to establish a right of access. The Court also held that the circuit court did not err in finding that appellees’ claim was not barred by a mediation agreement executed a year-and-a-half prior to the filing of the action. Appellants failed to produce any evidence to rebut testimony that the release did not address the easement claim. The Court then held that the circuit court did not err in finding that appellees were not barred from asserting their claim under the doctrine of unclean hands when appellants failed to provide any evidence to support the allegations of fraud, illegality or unconscionable conduct. The Court finally held that the circuit court did not err in granting an easement appurtenant, rather than an easement in gross. By definition, a easement by necessity must always be appurtenant because there must be both a dominant and servient estate. Further, Kentucky courts disfavor easements in gross and will construe an easement as appurtenant whenever possible.

B. Poe v. Gaunce

2010-CA-001774 11/4/11 2011 WL 5244969

Opinion by Judge Moore; Judges Combs and Nickell concurred. The Court affirmed an order of the circuit court finding that appellee owned two burial sites and a monument located on a family cemetery plot. The Court first held that the circuit court’s finding that the individual who purchased the plots and monument was the owner of the entirety of the interment ease was not clearly erroneous because it was supported by substantial evidence. His name was on the express easement deed issued by the cemetery and his daughter testified that she was present when he purchased the four burial plots. The Court then held that appellants’ claim of adverse possession must fail because individuals buried in two of the plots were buried with the record owner’s knowledge and consent. The Court then held that substantial evidence supported a finding that the particular purpose of the appellant heirs’ easement ceased to exist, had been rendered impossible of accomplishment, and was abandoned after the individuals who were designated to be buried in the plots were disinterred and buried elsewhere. When the owner of the express easement for interment made designations of specific burial plots for the interment of the specific individuals, the individuals received an easement for that particular purpose. Any rights the appellants had was solely derived from the burial of, or the prospect of burying, the specific individuals in the plots and the vacated burial site reverted back to the ownership of the person, or heirs of the person, who originally purchased the easement. The Court next held that the trial court did not err in finding that appellees owned the monument. The monument merely reflected and was part of the then-extinguished burial easements. The Court finally held that appellants were not entitled to their legal costs pursuant to KRS 411.120 because the matter was adjudicated in favor of appellees.

IX. TAXATION

A. U.S. Bank National Association v. Tax Ease Lien Investments 1, LLC

2011-CA-000472 11/18/11 2011 WL 5599687

Opinion by Judge Stumbo; Judges Moore and Wine concurred. The Court reversed and remanded an order of the circuit court approving a master commissioner’s recommended dispersal of funds from the sale of a parcel of real property, giving priority to liens held by a city and county. The Court held that, pursuant to KRS Chapter 134, the liens resulting from the non-payment of ad valorem taxes were not rendered inferior by the sale of certificates of delinquency from municipalities to third-party purchasers and therefore, the circuit court erred in approving the dispersal of funds. The Court remanded for entry of a pro rata distribution of the proceeds.

X. TORTS

A. PCR Contractors, Inc. v. Danial

2010-CA-000247 11/4/11 2011 WL 5244930

Opinion by Judge Moore; Judge Nickell concurred; Judge Combs concurred in result only. The Court affirmed in part, reversed in part and remanded a summary judgment in favor of appellee on appellant’s claims for fraudulent and negligent misrepresentation based upon an alleged promise by appellee to personally guarantee payment to appellant relating to a contract appellant entered into with a company partly owned and co-managed by appellee. The Court first held that the trial court erred in concluding that there was no evidence to defeat summary judgment on the fraudulent misrepresentation claim. It was for the trier of fact to resolve whether the evidence supporting that appellee actually made the promise was more convincing than the evidence to the contrary and whether appellant’s reliance upon it was reasonable and justified. The Court also held that appellant’s pleadings, taken together with the sum of the evidence, adequately stated a prima facie claim of fraudulent misrepresentation. The Court then held that the trial court did not err in dismissing the negligent misrepresentation claim. Assuming appellant proved that appellee made a promise he never intended to carry out, he did not make the promise carelessly but rather, made it knowing it was false. In addition, consistent with Restatement (Second) of Torts § 552 and Kentucky law, appellee’s intent to perform a promise or agreement could not form the basis of a negligent misrepresentation claim.

XI. WORKERS' COMPENSATION

A. Hampton v. Intech Contracting, LLC

2011-CA-001195 11/18/11 WL Cite Not Yet Available

Opinion by Judge Thompson; Chief Judge Taylor and Judge Lambert concurred. The Court affirmed an opinion and order of the Workers’ Compensation Board affirming an order of the ALJ dismissing appellant’s claim alleging that he fell from a bridge and was severely and permanently injured within the scope and course of his employment. The Court held that the Board correctly determined that appellant’s injuries did not originate from a risk connected with his employment and did not flow from his employment as a rational consequence. His work on the deck of a bridge did not place him in a position of risk. Although he was atop the bridge deck, he did not fall from the bridge deck but rather, he placed himself in a position of risk when he climbed over the guardrail.

JURY INSTRUCTIONS: Civil case, separate instructions for past and future pain and suffering; and what about 'inconvenience'

The following decisions, albeit unpublished, addressed a common thread on pain and suffering, past and future, but bypassed the interesting question and issue as to whether on not the statutory prescription in the no fault act (which includes inconvenience) requires that exact phrase in the instructions as it goes to the jury.   Of course, the side-step is not unwarranted, but judicial clarification has not been a problem before.

See earlier post at the Kentucky Law Review by me entitled:  "Trial Practice: No Pain, No Gain and the Judicial Discounting of Pain and Suffering" back in 2006 and "Zero Pain and Suffering Verdict With Ky AG Candidate on the Defense" from 2007; and "DAMAGES: PTSD and mental anguish resulting from death of a loved one in the same car accident seems to be a noncompensable damage in UIM case even when the claimant has been physically injured from the accident" from 2008.

And, of course, here is KRS 204.39-060(2)(b):

In any action of tort brought against the owner, registrant, operator or occupant of a motor vehicle with respect to which security has been provided as required in this subtitle, or against any person or organization legally responsible for his or her acts or omissions, a plaintiff may recover damages in tort for pain, suffering, mental anguish and inconvenience because of bodily injury, sickness or disease arising out of the ownership, maintenance, operation or use of such motor vehicle . . . . (from 1975!).

1165.  CIVIL PROCEDURE (DIRECTED VERDICT) INSTRUCTIONS. PAIN, SUFFERING, INCONVENIENCE.
FERGUSON (BARBARA)
VS.
UNDERTOW TRUCKING, INC
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
ACREE (CONCURS) AND WINE (CONCURS)
2011-CA-000064-MR
NOT TO BE PUBLISHED - COA 12/22/2011
JOHNSON

Regarding her first assertion of error, Ferguson relies exclusively on McVey v. Berman, 836 S.W.2d 445 (Ky. App. 1992), for this proposition. In McVey, the Court said “[o]f course, it may be appropriate in many cases to give an additional separate instruction on future pain and suffering.” Id. at 450. The language therein is permissive not mandatory. Since Ferguson provides no other Kentucky law mandating separate instructions for past and future pain and suffering and has shown no prejudice resulting from this action by the trial judge, there is no error on the part of the trial judge.

Next, Ferguson argues that the jury instructions should have had the words “inconvenience,” “increased likelihood of future complications,” and “loss of enjoyment of life” in them. Given that we have held that the trial court did not err in failing to grant a motion for directed verdict or a motion for a judgment notwithstanding a jury verdict, clearly any error resulting would be harmless. The jury never deliberated as to damages and, therefore, it is unnecessary for us to go further in our examination of this issue.

STDS of REVIEW: Appellate review of jury instructions in civil case

1165.  CIVIL PROCEDURE (DIRECTED VERDICT). INSTRUCTIONS. PAIN, SUFFERING, INCONVENIENCE.
FERGUSON (BARBARA)
VS.
UNDERTOW TRUCKING, INC
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
ACREE (CONCURS) AND WINE (CONCURS)
2011-CA-000064-MR
NOT TO BE PUBLISHED
JOHNSON
12/22/2011 COA

With regard to the review of jury instructions, any errors in jury instructions are considered as questions of law and are reviewed by this Court de novo. Hamilton v. CSX Transportation, Inc., 208 S.W.3d 272, 275 (Ky. App. 2006).

STDS OF REVIEW: Appellate review of directed verdict denial

1165.  CIVIL PROCEDURE (DIRECTED VERDICT). INSTRUCTIONS. PAIN, SUFFERING, INCONVENIENCE.
FERGUSON (BARBARA)
VS.
UNDERTOW TRUCKING, INC
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
ACREE (CONCURS) AND WINE (CONCURS)
2011-CA-000064-MR
NOT TO BE PUBLISHED
JOHNSON

STANDARDS OF REVIEW: DIRECTED VERDICT AND INSTRUCTIONS

The standard of review for reviewing a motion for a directed verdict is
set forth in Lewis v. Bledsoe Surface Mining Company, 798 S.W.2d 459, 461–62 (Ky. 1990), as follows:

Upon review of the evidence supporting a judgment entered upon a jury verdict, the role of an appellate court is limited to determining whether the trial court erred in failing to grant the motion for directed verdict. All evidence which favors the prevailing party must be taken as true and the reviewing court is not at liberty to determine credibility or the weight which should be given to the evidence, these being functions reserved to the trier of fact. Kentucky & Indiana Terminal R. Co. v. Cantrell, 298 Ky., 743, 184 S.W.2d 111 (1944), and Cochran v. Downing, Ky., 247 S.W.2d 228 (1952). The prevailing party is entitled to all reasonable inferences which may be drawn from the evidence. Upon completion of such an evidentiary review, the appellate court must determine whether the verdict rendered is “‘palpably or flagrantly’ against the evidence so as ‘to indicate that it was reached as a result of passion or prejudice.’” NCAA v. Hornung, Ky., 754 S.W.2d 855, 860 (1988). If the reviewing court concludes that such is the case, it is at liberty to reverse the judgment on the grounds that the trial court erred in failing to sustain the motion for directed verdict. Otherwise, the judgment must be affirmed.

Thus, as the reviewing court, we do not address issues of credibility or the weight of the evidence. Our responsibility is to treat all evidence in favor of the prevailing party as true and make all reasonable inferences that may be drawn from the evidence in favor of the prevailing party. Under such circumstances the judgment of the trial court will only be reversed when a verdict is so palpably or flagrantly against the evidence as to indicate that it was reached as a result of passion or prejudice. In the instant case, the prevailing party is Undertow Trucking. Similarly, the same standard that is used for a directed verdict is also used for a judgment notwithstanding the verdict. Lovins v. Napier, 814 S.W.2d 921, 922 (Ky. 1991).

December 22, 2011 COA Minutes -- Nos. 1150-1172 (23 decisions; 4 published)

December 22, 2011 COA Minutes --  Nos. 1150-1172 (23 decisions; 4 published)

• Click on the above link for the full text of minutes with link to full text of each decision.
• Cick here for AOC page with current minutes and archived minutes links

PUBLISHED DECISIONS OF COA:

1150.  CRIMINAL PROCEDURE.  INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
POLLINI (JASPER)
VS.
COMMONWEALTH OF KENTUCKY
OPINION VACATING AND REMANDING
LAMBERT (PRESIDING JUDGE)
COMBS (CONCURS) AND KELLER (CONCURS)
2009-CA-000964-MR  ON REMAND FROM SUPREME COURT OF KENTUCKY NO. 2010-SC-000504-D
TO BE PUBLISHED
JEFFERSON

LAMBERT, JUDGE: This case comes to us on remand from the Kentucky Supreme Court for consideration of Jasper Pollini’s ineffective assistance of appellate counsel claim under Hollon v. Commonwealth, 334 S.W.3d 431 (Ky. 2010)(the Kentucky Supreme Court rendered Hollon and ruled that the time had come for recognition of IAAC claims premised upon appellate counsel’s alleged failure to raise a particular issue on direct appeal.). After careful review, we vacate and remand to the trial court for proceedings consistent with this opinion.  Turning to the merits of the omitted issue, we conclude that the omitted ex parte contact between the judge and jury in this case amounts to reversible error. A review of the record indicates that while the judge instructed the jury that the transcript of Plank’s conversation with police did not exist, in fact the transcript did exist, but had not been entered into the record in its entirety.

1162.  TORTS.  PRESMISES LIABILITY.  MCINTOSH LINE OF CASES. "OPEN AND OBVIOUS".  LANDLORD'S DUTY RE RENTED PREMISES AND REPAIRS.
TRUE (BRANDON)
VS.
FATH BLUEGRASS MANOR APARTMENT
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
CLAYTON (CONCURS) AND STUMBO (CONCURS)
2010-CA-001784-MR
TO BE PUBLISHED
KENTON

THOMPSON, JUDGE: Brandon True appeals from a summary judgment of the Kenton Circuit Court dismissing his claim against his landlord, Fath Bluegrass Manor Apartment, for injuries sustained when he fell from his apartment balcony. He contends that there are material issues of fact requiring that this Court reverse the summary judgment or, alternatively, remand to the circuit court to consider the application of the Supreme Court’s decision in Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010). We agree with the circuit court that Fath cannot be liable for True’s injuries caused by an open and obvious hazard that True was aware of prior to his fall. Further, we hold that, under the facts, McIntosh does not apply and, therefore, remand is unnecessary.

True contends that there are material issues of fact that precluded summary judgment on his negligent repair claim and that the question of whether a condition is open and obvious is an issue of fact for the jury. Consideration of the issues necessarily requires a review of a landlord’s liability to a tenant for personal injuries caused by a hazard on the premises occupied by a tenant.

The general rule is that the tenant takes the premises as he finds them, and, in the absence of a contract imposing upon the landlord the duty to make repairs or improvements, he is under no implied obligation to do so. But notwithstanding this, if the landlord undertakes to
make improvements or repairs on a leased building, and he makes them in such a negligent and careless manner as to injure the tenant, the tenant may recover the damages he sustains by reason of this negligence or carelessness[.]

Contrary to True’s assertion, the circuit court did not ignore the law applicable to negligent repairs. Rather, the circuit court carefully considered the undisputed facts and correctly emphasized that a negligent repair claim is premised on the tenant’s reliance that a defect has been remedied. Recovery is permitted only if a repair resulted in an increased danger that was unknown to the tenant or if the negligent repair gave the deceptive appearance of safety. Id. In this case, the undisputed facts are to the contrary.
True and Habermehl testified that they were aware that the railing was loose because screws were missing. They further testified that after they moved in but prior to the fall, Fath had not repaired the railing. Thus, this is not a negligent repair claim. The applicable law is that a tenant takes the premises in “as is” condition and the landlord is only liable for injuries caused by defects unknown to the tenant and not discoverable through reasonable inspection.

Nevertheless, True contends that this Court must remand the case for consideration of the Kentucky Supreme Court’s holding in McIntosh, rendered the same day as the circuit court’s summary judgment. In McIntosh, the Supreme Court modified the open and obvious doctrine so that it is no longer an absolute bar to recovery from a landowner. Instead, the Court adopted the modern trend expressed in the Restatement (Second) of Torts § 343A(1) (1965), and its focus on forseeability.

Since the Court’s pronouncement, this Court has had occasion to discuss its
application. In Lucas v. Gateway Community Services Organization, Inc., 343 S.W.3d 341 (Ky.App. 2011), it was stressed that there must be a reasonably foreseeable distraction that caused the plaintiff to fail to discover an obvious condition, forget its existence, or fail to protect against the danger. Id. at 346.
There is no evidence that True was distracted from his “duty to act reasonably to ensure [his] own safety, heightened by [his] familiarity with the location and the arguably open and obvious nature of the danger.” McIntosh, 319 S.W.3d. at 395. He was aware of the loose railing and the obvious danger it presented. His focus should have remained on the potential danger and, consequently, the exceptional circumstances described in McIntosh do not apply.
True points out that there are six disputed facts that can only be resolved by a jury: (1) whether he was intoxicated when he fell; (2) whether he fell from the balcony or dismantled it himself; (3) whether the landlord agreed to make repairs; (4) whether True or Habermehl informed Fath that the balcony needed repair; (5) the nature of the railing’s defect; and (6) whether Fath retained control over the premises.

Under our summary judgment standard, disputed facts warrant a jury trial only when material. Lewis, 56 S.W.3d at 436. The initial five disputed facts are immaterial because the common law we have recited precludes recovery.

Finally, True suggests that there is a fact issue regarding whether Fath retained control over the premises. He cites Carver v. Howard, 280 S.W.2d 708, 711 (Ky. 1955), wherein the general rule is stated: “[T]he landlord must exercise ordinary care to keep in a reasonably safe condition the premises reserved for common use of his tenants.” Although the lease placed certain restrictions on the activities and use of the apartment, the leased apartment space was not open for the common use of all tenants and, therefore, the control retained by Fath is immaterial.

Based on the foregoing, the summary judgment of the Kenton Circuit Court is affirmed.

1170.  JUVENILES.  DEPENDENCY NEGLECT.
H. (K.)
VS.
CABINET FOR HEALTH AND FAMILY SERVICES, ET AL.
OPINION REVERSING
WINE (PRESIDING JUDGE)
ACREE (CONCURS) AND CLAYTON (CONCURS)
2011-CA-000896-ME
2011-CA-000897-ME
TO BE PUBLISHED
MORGAN

The sole issue on appeal is whether the Cabinet presented sufficient evidence to establish that K.H. has neglected A.B.H. and K.S.H. Kentucky Revised Statutes (KRS) 620.100(3) provides that the Commonwealth bears the burden of proving dependency, neglect, or abuse of a child by a preponderance of the evidence. The Cabinet does not allege that A.B.H. and K.S.H. have ever been subjected to any direct acts of abuse or neglect. Rather, the Cabinet contends that K.H.’s refusal to sign the Aftercare Plan amounts to neglect by exposing the children to a risk of sexual abuse from A.H. The trial court’s findings regarding the weight and credibility of the evidence shall not be set aside unless clearly erroneous. Kentucky Rules of Civil Procedure (CR) 52.01. On the other hand, the trial court’s application of the law to those facts is subject to de novo review. A & A Mechanical, Inc. v. Thermal Equipment Sales, Inc., 998 S.W.2d 505, 509 (Ky. App. 1999).

But based on this unproven, potential risk of harm, the Cabinet further inferred that that the restrictions set out in the Aftercare Plan were necessary and that K.H.’s failure to agree to those terms amounted to neglect as defined in KRS 600.020(1)(f). This conclusion is too attenuated from the established evidence of record. There is no allegation that K.H. has done anything improper in the care of her own children. The Cabinet concedes that she is a good and fit mother. Her children are well-cared for and have never been abused. The Cabinet also admits that she cooperated with them during its investigation of A.K.Y’s allegations. At worst, K.H. has chosen to believe in the innocence of her husband, which she is entitled to do. For this, the Cabinet has labeled her a neglectful parent. Under the circumstances, we must conclude that the trial court’s finding of neglect was clearly erroneous as it applied to K.H.

1172.  WORKERS COMPENSATION.   INDEPENDENT CONTRACTOR.
GOGEL (DON)
VS.
JOHN HANCOCK, ET AL.
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
ACREE (CONCURS) AND COMBS (CONCURS)
2011-CA-001143-WC
TO BE PUBLISHED
WORKERS' COMP

KELLER, JUDGE: The Administrative Law Judge (ALJ) dismissed Don Gogel's (Gogel) workers' compensation claim, finding that Gogel was an independent contractor, not an employee. The Workers' Compensation Board (the Board) affirmed the ALJ, and Gogel appeals from the Board's opinion. On appeal, Gogel, who was an exercise rider for horse trainer John Hancock (Hancock), argues that the ALJ and the Board misapplied existing law. In the alternative, Gogel argues that the law should be changed from an analysis based on the "exercise of control," to one based on the "nature of the work." We disagree and affirm.

=====================================================

TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

IF YOU WANT

• WORKERS COMPENSATION LAW UPDATES, I RECOMMEND YOU GO TO THE COMP ED WEB SITE AT http://www.comped.net/.
• FAMILY LAW UPDATES, I RECOMMEND YOU GO TO Diana Skaggs' Divorce Law Journal at http://www.divorcelawjournal.com

1165.  CIVIL PROCEDURE (DIRECTED VERDICT). INSTRUCTIONS. PAIN, SUFFERING, INCONVENIENCE.
FERGUSON (BARBARA)
VS.
UNDERTOW TRUCKING, INC
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
ACREE (CONCURS) AND WINE (CONCURS)
2011-CA-000064-MR
NOT TO BE PUBLISHED
JOHNSON

CLAYTON, JUDGE: Barbara Ferguson appeals from a judgment entered by the Johnson Circuit Court in a commercial motor vehicle accident. The judgment was based on a unanimous jury verdict in favor of Undertow Trucking, Inc. Ferguson maintains that the trial court erred when it failed to grant her motion for directed verdict on the issue of liability and denied her motion for a judgment notwithstanding the verdict. Furthermore, she argues that the trial court provided the jury with erroneous damage instructions. For the following reasons, we affirm.

On appeal, Ferguson argues three main issues. She maintains that the
trial court should have granted the motion for directed verdict on the issue of Undertow Trucking’s liability; that the trial court should have tendered separate instructions for past pain and suffering as well as future pain and suffering; and, finally, that Ferguson is entitled to jury instruction including the words - “inconvenience,” “increased likelihood of future complications,” and “loss of enjoyment of life.”

Undertow Trucking counters these arguments by noting that the trial court properly refused to direct a verdict of liability against the company; that the jury instructions appropriately instructed the jury regarding past and future pain and suffering; and, lastly, that the failure to include a jury instruction on damages for inconvenience, increased likelihood of future complications, and loss of enjoyment of life is harmless error.

STANDARDS OF REVIEW: DIRECTED VERDICT AND INSTRUCTIONS

The standard of review for reviewing a motion for a directed verdict is
set forth in Lewis v. Bledsoe Surface Mining Company, 798 S.W.2d 459, 461–62 (Ky. 1990), as follows:
Upon review of the evidence supporting a judgment entered upon a jury verdict, the role of an appellate court is limited to determining whether the trial court erred in failing to grant the motion for directed verdict. All evidence which favors the prevailing party must be taken as true and the reviewing court is not at liberty to determine credibility or the weight which should be given to the evidence, these being functions reserved to the trier of fact. Kentucky & Indiana Terminal R. Co. v. Cantrell, 298 Ky., 743, 184 S.W.2d 111 (1944), and Cochran v. Downing, Ky., 247 S.W.2d 228 (1952). The prevailing party is entitled to all reasonable inferences which may be drawn from the evidence. Upon completion of such an evidentiary review, the appellate court must determine whether the verdict rendered is “‘palpably or flagrantly’ against the evidence so as ‘to indicate that it was reached as a result of passion or prejudice.’” NCAA v. Hornung, Ky., 754 S.W.2d 855, 860 (1988). If the reviewing court concludes that such is the case, it is at liberty to reverse the judgment on the grounds that the trial court erred in failing to sustain the motion for directed verdict. Otherwise, the judgment must be affirmed.
Thus, as the reviewing court, we do not address issues of credibility or the weight of the evidence. Our responsibility is to treat all evidence in favor of the prevailing party as true and make all reasonable inferences that may be drawn from the evidence in favor of the prevailing party. Under such circumstances the judgment of the trial court will only be reversed when a verdict is so palpably or flagrantly against the evidence as to indicate that it was reached as a result of passion or prejudice. In the instant case, the prevailing party is Undertow Trucking. Similarly, the same standard that is used for a directed verdict is also used for a judgment notwithstanding the verdict. Lovins v. Napier, 814 S.W.2d 921, 922 (Ky. 1991).

With regard to the review of jury instructions, any errors in jury instructions are considered as questions of law and are reviewed by this Court de novo. Hamilton v. CSX Transportation, Inc., 208 S.W.3d 272, 275 (Ky. App. 2006). With these standards in mind, we now turn to the issues in the instant case.

Regarding jury instructions, Ferguson initially claims that the court erred when it failed to provide separate instructions regarding past and future pain and suffering. She also maintains that the trial court erred by not including the words “inconvenience,” “increased likelihood of future complications,” and “loss of enjoyment of life.”

Regarding her first assertion of error, Ferguson relies exclusively on McVey v. Berman, 836 S.W.2d 445 (Ky. App. 1992), for this proposition. In McVey, the Court said “[o]f course, it may be appropriate in many cases to give an additional separate instruction on future pain and suffering.” Id. at 450. The language therein is permissive not mandatory. Since Ferguson provides no other Kentucky law mandating separate instructions for past and future pain and suffering and has shown no prejudice resulting from this action by the trial judge, there is no error on the part of the trial judge.

Next, Ferguson argues that the jury instructions should have had the words “inconvenience,” “increased likelihood of future complications,” and “loss of enjoyment of life” in them. Given that we have held that the trial court did not err in failing to grant a motion for directed verdict or a motion for a judgment notwithstanding a jury verdict, clearly any error resulting would be harmless. The jury never deliberated as to damages and, therefore, it is unnecessary for us to go further in our examination of this issue.

December 16, 2011 COA Minutes -- Nos. 1131-1141 (21 decisions; 7 published)

December 16, 2011 COA Minutes --  Nos. 1131-1141 (21 decisions; 7 published)

• Click on the above link for the full text of minutes with link to full text of each decision.
• Cick here for AOC page with current minutes and archived minutes links

PUBLISHED DECISIONS OF COA:

1131.  CRIMINAL LAW
JACKSON (CHARLES)
VS.
COMMONWEALTH OF KENTUCKY
OPINION REVERSING AND REMANDING
LAMBERT (PRESIDING JUDGE)
CAPERTON (CONCURS) AND KELLER (CONCURS)
2010-CA-000508-MR
TO BE PUBLISHED
KENTON

LAMBERT, JUDGE:    Charles Jackson, II (hereinafter Jackson) appeals directly from the Kenton Circuit Court’s final judgment of conviction for second-degree burglary for which he received a sentence of five years’ imprisonment. After careful review, we reverse and remand.

In the instant case, the Commonwealth clearly opened the door when it asked Jackson whether he had ever wandered off after a seizure. Thus on redirect, Jackson was permitted to explain or give reasons for his conduct. While we are cognizant that “the door does not swing off its hinges to permit irrelevant and prejudicial testimony” on redirect, we simply cannot say that Jackson’s description of his conduct after a seizure was irrelevant or prejudicial. See State ex rel Missouri Highway and Transp. Comm’n v. Sturmfels Farm Ltd. Partnership, 795 S.W.2d 581, 589 (Mo. Ct. App. 1990) (internal quotations and citation omitted). Jackson’s defense to the crimes charged was that he suffered a seizure, became confused, and wandered into the wrong house. Without doubt, the fact that Jackson had suffered the same side-effect after a seizure on a previous occasion was relevant and probative. We agree with Jackson that it went to the heart of his defense as well as to his credibility. The jury should have been permitted to consider whether, given Jackson’s history of seizures, the same thing occurred in this case.
Jurors are “entitled to have the benefit of the defense theory before them so that they c[an] make an informed judgment as to the weight to place” on the evidence. Davis v. Alaska, 415 U.S. 308, 317, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). A defendant’s due process rights involve “the right to a fair opportunity to defend against the State’s accusations” and to “confront and cross-examine witnesses and to call witnesses in one’s own behalf[.]” Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). The trial court erred to Jackson’s substantial prejudice and denied him the right to present his defense when it improperly excluded his testimony on redirect examination.

Citing James v. Churchill Downs, Inc., 620 S.W.2d 323 (Ky. App. 1981), NLC also maintains that a common-law claim may not be repealed by implication, and that the statutory intent to abrogate the common law must be clearly apparent. It contends that because the General Assembly failed to expressly repeal in the statutory language the common-law claim of breach of fiduciary duty, such a claim necessarily remains viable. And, lastly on this issue, NLC argues that, in rejecting the common-law claim of breach of fiduciary duty, the circuit court improperly failed to abide by Kentucky Supreme Court precedent which established or otherwise recognized the common-law claim of breach of fiduciary duty.

Accordingly, because the trial court abused its discretion in excluding Jackson’s testimony about his conduct after prior seizures, we reverse and remand this case for a new trial.

1132. TORTS.  BREACH OF FIDUCIARY DUTY.
THE NEW LEXINGTON CLINIC
VS.
COOPER (GREGORY), ET AL.
OPINION REVERSING AND REMANDING
STUMBO (PRESIDING JUDGE)
CLAYTON (CONCURS) AND THOMPSON (CONCURS IN RESULT ONLY)
2010-CA-001128-MR
2010-CA-001129-MR
2010-CA-001182-MR
2010-CA-001183-MR
TO BE PUBLISHED
FAYETTE

STUMBO, JUDGE:    The New Lexington Clinic (“NLC”) appeals from an order and judgment of the Fayette Circuit Court sustaining the summary judgment motion of Dr. Michael McKinney, et al. NLC alleged that Dr. McKinney and other physicians, while serving as board members of NLC, breached their fiduciary duties to the clinic by executing a plan to take their employment and the employment of support staff to Baptist Healthcare System, Inc. and Baptist Physicians Lexington, Inc. (collectively referred to hereinafter as the “Baptist defendants”). NLC also alleged that the Baptist defendants tortiously interfered with NLC’s employment contracts by facilitating and promoting the physicians’ relocation from NLC to the Baptist defendants. In sustaining the summary judgment motion of the multiple defendants, the Fayette Circuit Court determined that NLC improperly prosecuted a defunct common-law claim rather than a statutory claim as set out in Kentucky Revised Statutes (KRS) 271B.8-300. NLC now argues that the circuit court erred in failing to conclude that the common-law breach of fiduciary duty claim is both viable and applicable to the facts herein. We conclude that though the circuit court correctly determined that KRS 271B.8-300 supplanted the common-law claim of breach of fiduciary duty, NLC properly asserted a claim of breach of fiduciary duty in its complaint, it should be availed of additional discovery, and summary judgment was premature.

Accordingly, we reverse the summary judgment and remand the matter for further proceedings. 3

1133. GOVERNMENTAL REGULATION. UTILITIES. 
WEST KENTUCKY RURAL ELECTRIC COOPERATIVE CORPORATION
VS.
CITY OF BARDWELL, KENTUCKY
OPINION AFFIRMING
WINE (PRESIDING JUDGE)
MOORE (CONCURS) AND STUMBO (CONCURS)
2010-CA-001140-MR
TO BE PUBLISHED
CARLISLE

WINE, JUDGE: West Kentucky Rural Electric Cooperative Corporation (WKRECC) appeals from a summary judgment by the Carlisle Circuit Court resolving a utility service dispute in favor of the City of Bardwell, Kentucky. Upon a thorough review of the record, we affirm the Carlisle Circuit Court.

STATUTORY INTERPRETATION:

Statutory interpretation is a question of law for the courts. City of Worthington Hills v. Worthington Fire Protection Dist., 140 S.W.3d 584 (Ky. App. 2004). We interpret a statute according to its plain meaning, construing all words and phrases in accordance with their common usage. KRS 446.080(4). It is a general principle of statutory construction that we will not be guided by a single word or sentence in the statute, however, but that we will consider the statute as a whole with an eye towards promoting its object and purpose. County of Harlan v. Appalachian Regional Healthcare, Inc., 85 S.W.3d 607, 611 (Ky. 2002). In doing so, we keep in mind that the aim of statutory construction is always to effectuate the intent of the legislature. Id.

1135.  CRIMINAL LAW. INSTRUCTIONS RE SEXUAL ABUSE STATUTE.
SPRAGUE (ARNOLD DAVIS)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
MOORE (CONCURS) AND WINE (CONCURS)
2010-CA-001274-MR
TO BE PUBLISHED
UNION

STUMBO, JUDGE: Arnold Davis Sprague appeals from a Judgment of the Union Circuit Court reflecting a jury verdict finding Sprague guilty of five counts of First Degree Sexual Abuse. Sprague argues that the Sexual Abuse statute - KRS 510.110 - is ambiguous, that the jury instructions were improper, and that the trial judge erroneously refused the jury’s request to interpret or clarify the instructions. We find no error, and affirm the judgment on appeal.

1136.  DIVORCE. 
CRAWFORD (VIRGINIA LEE)
VS.
CRAWFORD (JAMES DARWIN)
OPINION AFFIRMING IN PART, VACATING IN PART AND REMANDING
LAMBERT (PRESIDING JUDGE)
TAYLOR (CONCURS) AND DIXON (CONCURS)
2010-CA-001576-MR
TO BE PUBLISHED
BOYD

LAMBERT, JUDGE: In this dissolution action, Virginia Lee Crawford has appealed from the August 6, 2010, order of the Boyd Circuit Court confirming the report and supplemental report of the Domestic Relations Commissioner (DRC). Virginia asserts that the circuit court, in adopting the DRC’s findings and conclusions, did not equitably divide the marital property and debt and that it failed to award maintenance, medical expenses, and attorney fees. Having carefully considered the record, including the transcript of the final hearing before the DRC, we affirm the portion of the order declining to reimburse Virginia for her claimed medical/dental expenses, but we vacate the remainder of the order and remand for further proceedings.

1138.  CRIMINAL LAW. EXPUNGEMENT.
COMMONWEALTH OF KENTUCKY
VS.
CASTILLO (FELIX)
OPINION REVERSING AND REMANDING
STUMBO (PRESIDING JUDGE)
KELLER (CONCURS) AND VANMETER (CONCURS)
2010-CA-002019-MR
2011-CA-000429-MR
TO BE PUBLISHED
JEFFERSON

STUMBO, JUDGE: This consolidated appeal concerns the Jefferson Circuit Court’s dismissal of a case with prejudice and the expungement of the case records. The Commonwealth argues that the trial court did not have the authority to dismiss the case with prejudice. It also argues that the records should not have been expunged. We agree with the Commonwealth and reverse and remand.

1140. CRIMINAL LAW. SENTENCING. RETROACTIVE.
SMITH (MICHELLE)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
MOORE (PRESIDING JUDGE)
WINE (CONCURS) AND STUMBO (DISSENTS)
2010-CA-002237-MR
TO BE PUBLISHED
CRITTENDEN

MOORE, JUDGE: Michelle Smith appeals from the Crittenden Circuit Court’s order sentencing her to five years’ imprisonment. After a thorough review of the record, we affirm.

RETROACTIVE STATUTES:

As a general rule, “[n]o statute shall be construed to be retroactive, unless expressly so declared.” KRS 446.080(3). Thus, Kentucky courts have as a rule applied the law in existence at the time of the commission of the crime. Lawson v. Commonwealth, 53 S.W.3d 534, 550 (Ky. 2001). However, KRS 446.110 provides an exception to this rule, where the amended provision is “‘certainly’ or ‘definitely’ mitigating,” id. (footnote omitted), and where the defendant has given her consent as the “party affected.” Id. at 551 (“[Defendant] certainly did not consent to the application of the modified provisions.”); Commonwealth v. Phon, 17 S.W.3d 106, 107 (Ky. 2000) (“[P]enalty...could be applied, with the defendant’s consent...”); Coleman v. Commonwealth, 160 Ky. 87, 169 S.W. 595, 597 (1914) (“unless the punishment is definitely mitigated by the new law and the accused consents . . .”).

=====================================================

TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

IF YOU WANT

• WORKERS COMPENSATION LAW UPDATES, I RECOMMEND YOU GO TO THE COMP ED WEB SITE AT http://www.comped.net/.
• FAMILY LAW UPDATES, I RECOMMEND YOU GO TO Diana Skaggs' Divorce Law Journal at http://www.divorcelawjournal.com

1132. TORTS.  BREACH OF FIDUCIARY DUTY.
THE NEW LEXINGTON CLINIC
VS.
COOPER (GREGORY), ET AL.
OPINION REVERSING AND REMANDING
STUMBO (PRESIDING JUDGE)
CLAYTON (CONCURS) AND THOMPSON (CONCURS IN RESULT ONLY)
2010-CA-001128-MR
2010-CA-001129-MR
2010-CA-001182-MR
2010-CA-001183-MR
TO BE PUBLISHED
FAYETTE

SEE SYNOPSIS ABOVE.

1137.  APPOINTMENT OF PUBLIC ADMINISTRATOR IN WRONGFUL DEATH ACTION.
FIGUEROA (LORENZA)
VS.
MEINHART (CHRIS), ET AL.
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
KELLER (CONCURS) VANMETER (CONCURS)
2010-CA-001693-DG
NOT TO BE PUBLISHED
JEFFERSON

STUMBO, JUDGE: Lorenza Figueroa appeals from an order of the Jefferson District Court appointing the Public Administrator to administer the estate of her nephew, Saul Figueroa-Bautista. She argues that the Public Administrator was appointed before 60 days had elapsed, making the appointment void under KRS 395.390(1). The Appellees argue there is no time limit requirement for the appointment of the Public Administrator. We find KRS 395.390(1) generally requires that the district court wait for 60 days after the death of a decedent before it appoints the Public Administrator as administrator of an estate; however, in this case, such requirement was unnecessary.

1139.  CIVIL PROCEDURE. SETTING ASIDE DEFAULT JUDGMENT.
LA EXOTIC MOTOR CARS, INC.
VS.
WIMSETT (VINCENT)
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
KELLER (CONCURS) AND VANMETER (CONCURS)
2010-CA-002154-MR
NOT TO BE PUBLISHED
JEFFERSON

STUMBO, JUDGE: LA Exotic Motorcars, Inc.1 appeals from an order of the Jefferson Circuit Court overruling its motion to set aside a default judgment rendered in favor of Vincent Wimsett. The default judgment was rendered after LA Exotic Motorcars’ answer to Wimsett’s complaint was stricken by order of the Jefferson Circuit Court. LA Exotic Motorcars maintains that it never received notice that its answer was stricken, and that it was prepared to assert valid defenses to the complaint and move forward to trial. Since LA Exotic Motorcars tendered no response either to the motion to strike its answer or to Wimsett’s subsequent Application for Default Judgment, we find no error in the order of dismissal and accordingly affirm.

1145. CIVIL PROCEDURE. LOCAL RULES VIOLATION FOR FAILURE TO GIVE 20 DAYS TO RESPOND TO MOTION TO DISMISS.
GAINES (KEITHEN), ET AL.
VS.
NICHOLS (VIRGINIA), ET AL.
OPINION REVERSING AND REMANDING
STUMBO (PRESIDING JUDGE)
KELLER (CONCURS) AND VANMETER (CONCURS)
2011-CA-000413-MR
NOT TO BE PUBLISHED
JEFFERSON

STUMBO, JUDGE: Keithen Gaines and Kathy Parker appeal from an order of the Jefferson Circuit Court dismissing their action against Virginia J. Nichols and Safe Auto Insurance Company in which they sought damages resulting from a “hit and run” automobile accident. Gaines and Parker argue that the circuit court erred by sustaining the defendants’ motions to dismiss before the 20 day local rule response period had elapsed. They also contend that the court improperly failed to strike Nichols’ motion to dismiss as it was improperly set to be heard at a motion hour in violation of a local rule. Because the record reveals that Gaines and Parker were not given 20 days to respond to Nichols’ motion to dismiss, we must reverse on this issue and remand the matter for further proceedings.

1146.  INSURANCE.  UIM EXCLUSION UPHELD RE OWNED BUT UNINSURED VEHICLE.
LARKIN (MARY), ET AL.
VS.
UNITED SERVICES AUTOMOBILE ASSOCIATION
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
MOORE (CONCURS) AND WINE (CONCURS)
2011-CA-000434-MR
NOT TO BE PUBLISHED
HARDIN

STUMBO, JUDGE: Mary Larkin, individually, and the Estate of Michael L. Larkin (hereinafter collectively referred to as “Appellants”) appeal from a Summary Judgment rendered in Hardin Circuit Court in their action to collect underinsured motorist (“UIM”) benefits from United Services Automobile Association (“USAA”). The Appellants contend that the trial court erred in concluding that a provision of a USAA insurance contract is enforceable and not contrary to public policy. That exclusionary language provided that if the insured was operating an uninsured motor vehicle owned by that insured at the time of the accident, the insured was not entitled to UIM benefits. We find no error in this conclusion and the resultant entry of Summary Judgment, and accordingly affirm.

December 2011 SCOKY Oral Arguments set for Dec. 14 and 15, 2011

December 2011    SCOKY Oral Arguments

Click on above link for this month's argument calendar.

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Appellate briefs are posted at the Northern Kentucky University, Salmon P. Chase College of Law ( Click here). 

If the briefs have been filed at NKU at the time of this post, then they are linked here.  If the briefs were not available on line, THEN  Click here and enter the Supreme Court, Month, and year to pull of the results for the briefs filed in the month you need to search (or the link for those "accepted for oral argument.")

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The issues, dates, times, lower court/judge, counsel, AND links to full text of briefs and  COA decision are below!  The actual calendars are on line at AOC - Click here.

WEDNESDAY, DECEMBER 14, 2011

9:00 a.m. CARTER V. SMITH, ET AL. (2010-SC-295-DG)
"Open Meetings. Exceptions. Personnel and Litigation. Issues involve the applicability of the personnel and litigation open meetings exceptions to a closed school board meeting considering potential resignation of a school superintendent as well as his potential subsequent retention on a 12-month consulting contract."
Discretionary Review granted 3/16/2011
Bourbon Circuit Court, Judge Paul F. Isaacs
For Movant: Joe Francis Childers, Jr.
For Respondents: Neil Edward Duncliffe and Sam Preston Burchett

Appellant's Brief

Appellee's Brief

Appellee's Brief

Appellant's Reply Brief

10:00 a.m. DRIVER V. COMMONWEALTH OF KENTUCKY (2009-SC-639-DG)
"First degree assault – 15 years."
Discretionary Review granted 12/9/2010
Marshall Circuit Court, Judge Dennis Foust
For Movant: Samuel N. Potter
For Respondent: Joshua D. Farley

Appellant's Brief

Appellee's Brief

Appellant's Reply Brief

11:00 a.m. MITCHELL V. UNIVERSITY OF KENTUCKY, ET AL. (2010-SC-762-TG )
"Termination of employee for violating university policies prohibiting anyone from bringing a deadly weapon on university property."
Fayette Circuit Court, Judge Pamela Goodwine
For Movant: Christopher Derek Hunt
For Respondents: Barbara Ann Kriz

 

Appellant's Brief

Appellee's Brief

Appellant's Reply Brief

Amicus Curiae

Amicus Curiae

Amicus Curiae

THURSDAY, DECEMBER 15, 2011

9:00 a.m. OSBORNE V. KEENEY, ET AL. (2010-SC-397-DG) AND KEENEY V.
OSBORNE, ET AL. (2010-SC-430-DG)
"Legal Malpractice. Emotional Distress. Damages. Issues include:
1. Whether a physical touching is still required for a Plaintiff to recover emotional distress damages;
2. Whether a Plaintiff may recover “lost punitive” damages in a legal malpractice claim;
3. Whether CR 8.01 limits the damages a Plaintiff may recover;
4. Whether and how a Plaintiff may file an Amended Complaint to include the Defendant’s insurance company;
5. Must the trial court instruct the jury on and must the jury make findings on the “case-within-a-case;”
6. Did the trial court err by using “should have realized” language in the fraud instruction, and
7. Did the Court of Appeals, by affirming in part and reversing in part, create an unconstitutional ratio between compensatory and punitive damages such that the punitive award is now excessive?"
Discretionary Review granted 5/11/2011
Jefferson Circuit Court, Judge Martin F. McDonald
For Osborne: LeRoy E. Sitlinger, Jr.
For Keeney: Sheryl G. Snyder, Matthew W. Breetz, Griffin Terry Sumner and Andrew Graham Beshear
For Carolina Casualty Insurance and Monitor Liability Managers: Douglas Cain Ballantine, Joseph Kent Durning and Amy Olive Wheeler

Appellant's Brief

Appellant's Brief

Appellee's Brief

Appellee's Brief

Appellee's Brief

Appellant's Reply Brief

Appellant's Reply Brief

10:00 a.m. COMMONWEALTH OF KENTUCKY V. O'CONNER (2010-SC-343-DG)
"Criminal law. First-Degree Criminal Abuse. The issue is whether the Commonwealth presented sufficient evidence to support a verdict for intentional abuse where the defendant argued the acts toward the children were the result of poverty and poor parenting skills."
Discretionary Review granted 3/16/2011
Pulaski Circuit Court, Judge David A. Tapp
For Movant: David Wayne Barr
For Respondent: Kathleen Kallaher Schmidt

Appellant's Brief

Appellee's Brief

11:00 a.m. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. V. ROBERTS
(2010-SC-069-DG)
"Mortgages. Judgment Liens. Equitable Subrogation. Issues include the prioritization of liens in a foreclosure action."
Discretionary Review granted 4/13/2011
Henderson Circuit Court, Judge Stephen Hayden
For Movant: Thomas Morgan Ward, Jr., Bethany A. Breetz and Chadwick Aaron McTighe
For Respondent: Kenneth S. Kasacavage

Appellant's Brief

Appellee's Brief

Appellant's Reply Brief

FRIDAY, DECEMBER 16, 2011
NO ORAL ARGUMENTS