Kentucky Court Report - SCOKY & COAKY

Minutes for Kentucky Court of Appeals for MAY 2, 2008 (COA) (2008:22)

• Click here for PDF copy of Minutes posted at AOC with links to each published and non-published decision this week. 
• 37 rendered decisions - Numbered 502-538
  • 4 published 503
    • 503 - O.(S.D.) V. Com.
    • 516 - Woolum M.D. v. Hillman
    • 521 - Com. v. Copper Care
    • 534 - Whaley v. Whittaker Bank

  Minutes List - all published and nonpublished decisions with links to the full text of the decision posted at AOC's web site plus orders regarding dismissals, extraordinary writs, discretionary review. 

  • Court of Appeals Minutes List
  • Supreme Court Minutes List

May 2008 Supreme Court of Kentucky Oral Arguments (SCOKY) for May 14, 15, 16

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

Links to COA decisions (if there are any) follow the links to the briefs.

For Kentucky Supreme Court LIVE arguments, click here on date and time of argument.

WEDNESDAY, MAY 14, 2008

9:00 a.m. RICHARDSON V. LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT (2006-SC-502-DG)
"Insurance. Duty to Defend. CALGA. Issues include whether the duty to defend under the Claims Against Local Governments Act (KRS 65.200 et seq.) applies to former employees sued in tort for acts or omissions occurring within the scope of local government employment."
Discretionary Review granted 1/18/2007
Jefferson Circuit Court, Judge Michael O. McDonald
For Movant: J. Key Schoen
For Respondent: N. Scott Lilly and Susan P. Spickard
(Note: Justice Schroder is recused)
(Rescheduled from March 14, 2008)

Briefs not yet posted
2004CA002440

10:00 a.m. JONES V. COMMONWEALTH OF KENTUCKY (2006-SC-802-DG)
"Criminal Law. DUI. Amendment of Charges. PFO. Issues include the application and operation of KRS 189A.010(5) that fourth or subsequent offenses are to be charged as felonies and KRS 189A.120 restricting amending charges down where an individual refused to submit to testing."
Discretionary review granted 3/14/2007
Fayette Circuit Court, Judge Pamela Goodwine
For Movant: V. Gene Lewter
For Respondent: Courtney J. Hightower
(Note: Justice Schroder is recused)

Appellant's Brief

Appellee's Brief

2005CA001089

11:00 a.m. WILLIAMS V. STATE FARM MUTUAL INSURANCE CO. (2006-SC-856-DG)
"Auto Insurance. Underinsured Coverage. Was a vehicle excluded from coverage as a vehicle "furnished" (language used in the policy) to a member of an insured's household, when the vehicle had been purchased exclusively by that member of the household but titled in the insured's and the purchaser's name?"
Discretionary Review granted 4/11/2007
Menifee Circuit Court, Judge William B. Mains
For Movant: William Daniel Nefzger
For Respondent: E. Douglas Stephan

Appellant's Brief

Appellee's Brief

THURSDAY, MAY 15, 2008

9:00 a.m. QUINTANA V. COMMONWEALTH OF KENTUCKY (2006-SC-629-DG)
"Criminal Law. Search and Seizure. Were the appellant's rights violated when police went into his backyard in order to see if the home had a back door and to determine if the appellant was home?"
Discretionary Review granted 2/14/2007
Nelson Circuit Court, Judge Larry Raikes
For Movant: John D. Seay and Jeremy Dwight Chesser
For Respondent: Terry Lane Geoghegan and Bryan D. Morrow

Appellant's Brief

Appellee's Brief

Appellant's Reply Brief

2005CA000341

10:00 a.m. BOTTOM, ET AL. V. COMMONWEALTH OF KENTUCKY (2006-SC-823-DG)
"Criminal Law. Search and Seizure. The issue is the validity of the police practice of "knock and talk," in which officers approach a home in order to request consent to conduct a search when officers have suspicion of criminal conduct but do not have sufficient information to establish probable cause to obtain a search warrant."
Discretionary Review granted 2/14/2007
Russell Circuit Court, Judge Vernon Miniard, Jr.
For Movants: Jeffrey H. Hoover
For Respondent: Michael Harned

Appellant's Brief

Appellee's Brief

2004CA002480

11:00 a.m. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES V. EPI CORPORATION (2006-SC-348-DG)
"Statute of Limitations. Medicaid. The issue is the applicable statute of limitations for recoupment of overpaid medicaid benefits."
Discretionary Review granted 2/14/2007
Anderson Circuit Court, Judge William F. Stewart
For Movant: Johann F. Herklotz and Alea Amber Arnett
For Respondent: Frank F. Chuppe, Virginia Hamilton Snell and Stephen R. Price
(Note: Justice Minton is recused)

Appellant's Brief

Appellee's Brief

Appellant's Reply Brief

2005CA000274

FRIDAY, MAY 16, 2008

9:00 a.m. CLARK V. COMMONWEALTH OF KENTUCKY (2005-SC-862-MR)
"Twenty-five counts: first degree rape, first degree sodomy, second degree sodomy, incest, promoting a sexual performance by a minor, use of a minor in a sexual performance, criminal attempt to commit promoting a sexual performance by a minor and criminal attempt to commit use of a minor in a sexual performance - Life imprisonment."
Hardin Circuit Court, Judge Janet P. Coleman
For Appellant: Emily Holt Rhorer
For Appellee: Jeffrey A. Cross
(Rescheduled from February 14, 2008)

Appellant’s Brief

Appellee’s Brief

Appellant’s Reply Brief
No COA Decision.

10:00 a.m. COMMONWEALTH OF KENTUCKY, TRANSPORTATION CABINET, DEPARTMENT OF HIGHWAYS V. SEXTON, ET AL. (2006-SC-454-DG)
"Board of Claims. Negligence. Duty. Issues include whether the Department of Highways has a duty to prevent dead or diseased trees on its properties from falling onto adjoining properties."
Discretionary Review granted 2/14/2007
Jefferson Circuit Court, Judge Ann Shake
For Movant: A. Andrew Draut, Russell H. Saunders and P. Kevin Moore
For Respondents: Daniel Michael Alvarez and G. Mitchell Mattingly
(Note: Justice Schroder is recused)

Appellant's Brief

Appellee's Brief

Appellant's Reply Brief

2005CA000005

11:00 a.m. HENRY V. COMMONWEALTH OF KENTUCKY (2006-SC-767-DG)
"Criminal Law. Miranda Warnings. Vehicle Search. Double Jeopardy. On appeal of criminal conviction pursuant to conditional guilty plea, issues relate to the "public safety" exception to mandated Miranda warnings, the warrantless search of automobile incident to recent occupant's arrest, and whether claim of double jeopardy is waived upon entry of guilty plea."
Discretionary Review granted 4/11/2007
Jefferson Circuit Court, Judge F. Kenneth Conliffe
For Movant: Bruce P. Hackett
For Respondent: Gregory C. Fuchs
(Note: Justice Schroder is recused)

Appellant’s Brief

Appellee’s Brief

Appellant’s Reply Brief

2005CA000611

MAY 2008 Court of Appeals Argument Calendar

May 2008 Court of Appeals Argument Calendar posted.

May 5, 6, 12, 13, 14, 21 and 29, 2008.

LOCATION: COURT OF APPEALS COURTROOM, 360 DEMOCRAT DRIVE, FRANKFORT, KENTUCKY
DATE: Monday, May 05, 2008

10:00 AM WINE CAPERTON KELLER
DAVID TIDWELL, IV VS COMMONWEALTH OF KENTUCKY 2007CA000136
Appeal from conviction for TBUT over $300 and PFO II. Denial of motion for directed verdict; denial of lesser-included offense instruction; violation of separation of witness order; denial of motion to suppress evidence seized pursuant to search warrant; denial of motion to suppress photographs and witness identification as unduly suggestive; impeachment of defense witness on collateral matter; cumulative error.

10:45 AM WINE CAPERTON KELLER
GEORGE GLASS VS NANCY GLASS 2007CA000301
Appeal and cross-appeal from dissolution judgment. Direct appeal: Classification of non-marital property; burden of proof to show that increase in value of non-marital property remains non-marital; and division of marital property. Cross-appeal: classification of a ring which replaced a gifted ring as marital; sufficiency of evidence of value of another ring used to offset ring; existence of agreement regarding disposition of rings.

11:30 AM WINE CAPERTON KELLER
JAMES BROOKS ET AL. VS GRAMS, INC. 2007CA001087
Appeal from summary judgment dismissing vicarious liability claim. Whether the spouse of an employee who is running a work-related errand for the employee has an agency relationship with employer. Existence of genuine issues of material fact.


LOCATION: COURT OF APPEALS COURTROOM, 360 DEMOCRAT DRIVE, FRANKFORT, KENTUCKY
DATE: Tuesday, May 06, 2008

10:00 AM KELLER CAPERTON WINE
ZOEY YOUNG VS UNIVERSITY HOSPITAL OF THE ALBERT B. CHANDLER MED. CTR. INC. ET AL.
2007CA001075
In this medical negligence action, the circuit court dismissed defendant medical center on the basis of sovereign immunity.Appellant alleges the defendants were not entitled to said immunity protection.

10:45 AM KELLER CAPERTON WINE
S.M., A CHILD UNDER EIGHTEEN VS COMMONWEALTH OF KENTUCKY 2007CA001353
This appeal involves the circuit court’s opinion affirming the district court’s ruling that the appellant, a juvenile, who was allegedly not eligible to be declared a juvenile sexual offender due to conviction for two counts of voyeurism was not entitled to an independent sexual assessment.

11:30 AM KELLER CAPERTON WINE
DOUGLAS FULTZ VS COMMONWEALTH OF KENTUCKY 2007CA000203
The appellant is alleging six points of error in this appeal from a Manslaughter in the Second Degree verdict. They include juror tainting as well as sufficiency of the evidence.

LOCATION: COURT OF APPEALS COURTROOM, 360 DEMOCRAT DRIVE, FRANKFORT, KENTUCKY
DATE: Wednesday, May 07, 2008

9:00 AM ACREE NICKELL VANMETER
MARK LIBRETTO VS KIM KINNAIRD 2006CA001682

1:30 PM WINE KELLER THOMPSON
PAUL ROGERS ET AL. VS SCARLETT COUNTS ET AL. 2006CA001087
Rogers appeal from a jury verdict awarding them no damages for personal injuries in a motor vehicle accident. Sufficiency of evidence; denial of motion for new trial; exclusion of evidence involving insurer while allowing insurer to participate at trial as a party; trial court's denial of request for additional cross-examination of medical witness testimony admitted by video deposition; preservation issues.

2:15 PM BUCKINGHAM LAMBERT TAYLOR
TONYA DEROSSETT VS GERTRUDE TYSON 2007CA001042
Property damage.

3:00 PM TAYLOR LAMBERT BUCKINGHAM
ROY HAMM VS DIANA HAMM 2006CA002119
2006-CA-002119 - Whether circuit court erred in its division of marital property; 2006-CA-002143 -Whether circuit court erred by not awarding permanent maintenance.

3:45 PM STUMBO COMBS KNOPF
VANDANA KUMAT VS ASHUTOSH LOHE 2006CA002624
Appeals from dissolution of marriage; issues include division of marital property, maintenance, failure to award childcare expenses.

LOCATION: CARROLL COUNTY COURTHOUSE, HALL OF JUSTICE, 802 CLAY STREET, CARROLLTON, KENTUCKY
DATE: Monday, May 12, 2008

1:00 PM KELLER THOMPSON GRAVES
MITZI WYRICK VS DEPARTMENT OF REVENUE, FINANCE & ADMINISTRATION CABINET ET AL.
2007CA000089
This case originated as an Open Records action in Franklin Circuit Court which upheld the appellees invocation of KRS 61.878(1) which addresses access to materials pertaining to civil litigation to deny appellant’s Open Records request. The appellees alleged that this is actually a discovery dispute masquerading as an Open Records request case.

1:45 PM KELLER THOMPSON GRAVES
CLARENCE HICKS VS R & J WELL SERVICE ET AL. 2007CA002609
Petition for Review filed by Clarence Hicks who sustained an injury on August 18, 2006, when he was lifting a large well head weighing 150 pounds. The Workers’ Compensation Board’s opinion dated 11-30-07 affirmed the ALJ’s opinion dated 7-20-07 dismissing the claims. The ALJ found no work-related injury; failed to apportion any active impairment; and denied requested surgery.

LOCATION: CARROLL COUNTY COURTHOUSE, HALL OF JUSTICE, 802 CLAY STREET, CARROLLTON, KENTUCKY
DATE: Tuesday, May 13, 2008

10:00 AM THOMPSON KELLER GRAVES
GREGORY DILLMAN VS COMMONWEALTH OF KENTUCKY 2007CA000455
Appellant was convicted in trial by jury of trafficking in a controlled substance. During cross examination, appellant alleges he was questioned about prior bad acts. Appellant asserted a fifth amendment right. Trial ct ordered appellant to answer question. Appellant complains prosecution did not give notice pursuant to KRE 404 © of intention to introduce evidence of other crimes, wrongs or acts, and of violation fifth amendment rights. Alleges trial ct. improperly instructed jury to law of case.

10:45 AM THOMPSON KELLER GRAVES
EDDIE ROTHWELL VS E. SINGLETON ET AL. 2007CA001348
Appellant appeals a directed verdict during a jury trial of a will contest action. Appellant believes that sufficient evidence was introduced during its case in chief so as to compel that this litigation be decided by the jury.

11:30 AM THOMPSON KELLER GRAVES
Z. T. VS M. T. ET AL. 2007CA001444
Issues: Finding of dependency, neglect and abuse, and ordered that he have no contact with his children; When 6 yr old child was questioned by county atty, the judge ordered him to remain outside of room and view proceedings on closed circuit TV and communicate with his atty by way of microphone connected to earphones worn by his atty; Alleges Mother had affair with pastor for one yr and had sexual relations with him in her home and children were in the home.

LOCATION: COURT OF APPEALS COURTROOM, 360 DEMOCRAT DRIVE, FRANKFORT, KENTUCKY
DATE: Tuesday, May 13, 2008

10:00 AM WINE ACREE VANMETER
PEOPLES BANK OF NORTHERN KENTUCKY, INC. ET AL. VS CROWE CHIZEK AND COMPANY LLC ET AL.
2007CA001174
Bank appeals from 6 orders entered by trial court without opinion or discussion, which had effect of granting summary judgment and dismissing each of bank's claims. Issues: Court ignored Steelvest standard, statute of limitations was tolled, claim for aiding and abetting, punitive damages, discovery, an alleged "release", jury instruction, waiver provision of audit engagement letter, and bank's check conversion losses.

LOCATION: FLOYD COUNTY JUSTICE CENTER, CIRCUIT COURTROOM B, 127 SOUTH LAKE DRIVE, PRESTONSBURG, KENTUCKY
DATE: Wednesday, May 14, 2008

1:45 PM COMBS STUMBO KNOPF
LORRAINE MAY VS JAY MOORE 2007CA000978
Appellant challenges summary judgment against her in a case involving personal injury to her allegedly resulting from negligently made repairs to a house that she was leasing.

2:30 PM COMBS STUMBO KNOPF
AMBER EVANS VS VICKY EVANS ET AL. 2007CA001728
Appellant, natural mother of three children at issue, challenges grant of custody to their paternal grandparents even though a judicial decree had previously found her to be a fit custodian.

LOCATION: COURT OF APPEALS COURTROOM, 360 DEMOCRAT DRIVE, FRANKFORT, KENTUCKY
DATE: Wednesday, May 21, 2008

10:30 AM KNOPF STUMBO TAYLOR
COMMONWEALTH OF KENTUCKY VS GREGORY BARTLETT ET AL. 2008CA000046
WRIT OF PROHIBITION

11:15 AM KNOPF STUMBO TAYLOR
COMMONWEALTH OF KENTUCKY VS A.C. CHAUVIN ET AL. 2008CA000027
WRIT OF PROHIBITION

LOCATION: MCCRACKEN COUNTY COURTHOUSE, COURTROOM A, SECOND FLOOR, 301 SOUTH SIXTH STREET, PADUCAH, KENTUCKY
DATE: Thursday, May 29, 2008

1:30 PM TAYLOR CLAYTON NICKELL
DICKIE TODD VS CITY OF PADUCAH 2007CA001732
Whether circuit court properly concluded City of Paducah's smoking ban ordinance did not constitute zoning ordinance under KRS 100.203.

LAWWIRE: Feb. 29, 2008 - KENTUCKY COURT OF APPEALS DECISIONS (2008:11)(COA)

Feb. 29, 2008 -  KENTUCKY COURT OF APPEALS DECISIONS (2008:11)

• HTML Version of the LawWire - Published and Nonpublished decisions
• PDF Version of the LawWire
• COA Argument Calendars
• SCOKY Argument Calendars
• Published decisions are digested below with links to full text, but the "not to be published" can be found in the minutes (by name, court, judges, decision, number, county, and LINK to full text)
• MINUTES from AOC for this week saved at our site and click here for the AOC's Official Minutes [which is provided for backup purposes]
• 27 rendered decisions
  • Nos. 253-279
  • 3 published decisions
    • 254 - Wagner v. Com.
    • 269 - Weis Builders v. Complete Contracting
    • 274 - Baker v. Combs

De facto custodians must be determined before determining custody between two sets of grandparents: BAKER V. COMBS (COA 2/29/2008)

BAKER V. COMBS
FAMILY LAW:  Child custody and de facto custodian
2007-CA-001013
PUBLISHED: VACATING AND REMANDING
PANEL:  KELLER PRESIDING; THOMPSON, WINE CONCUR
COUNTY: KNOX
DATE RENDERED: 2/29/2008

Mother appealed from TC’s order denying her motion for custody of her natural child and awarding continued permanent custody to Paternal Grandmother and Step-Grandfather (“Paternal Grandparents”). Mother and Father were never married, and Father never participated in the action or otherwise sought custody of Child. Mother is now married and has another child.

Child was first removed from Mother and placed in the temporary custody of CFC in January 2004 by Whitley District Court (“Whitley DC”) on the basis of Mother’s drug use and the fact that she left Child with Paternal Grandparents for the preceding two months; CFC placed Child with Paternal Grandparents. After adjudication hearing but before disposition hearing, Whitley DC transferred the case to the Laurel District Court (“Laurel DC”). Laurel DC, after permanency hearing, subsequently ordered that the permanency plan was placement with a permanent custodian pursuant to CFC’s recommendation and named Paternal Grandparents as the permanent custodians. Laurel DC entered a permanent custody order the same day, presumably naming Paternal Grandparents as Child’s permanent custodians, although the order portion of the preprinted AOC-DNA-9 form was not completed.

In the Findings of Fact portion of the form, Laurel DC indicated that it considered factors relating to a prior independent finding that a de facto custodian existed. However, CA found that the record did not contain any document reflecting a prior independent finding that a de facto custodian situation existed in this case.

Eight months later, Maternal Grandparents and Mother filed a Verified Petition for Custody in the Knox Family Court (“Knox FC”), as this was the home county of Paternal Grandparents and Child, requesting custody to Maternal Grandparents or to Mother. Knox FC permitted Mother supervised visitation with Child and ordered that she submit to random drug tests, each of which revealed a negative result. A year and a half later, Mother moved Knox FC for custody of Child, stating that she had complied with the court’s order that she rehabilitate herself, that she was married, and that she was leading a stable life. After hearing in which Mother’s witnesses testified that she had overcome her past problems with drug abuse, that she was currently a different person, and that she was capable of raising Child, and testimony regarding Mother’s past drug use and her past actions in leaving Child with Paternal Grandparents for extended periods of time, Knox FC denied Mother’s motion on the record, noting that Child had been in Paternal Grandparents’ home for more than 3 years and that the benefits of changing custody would not outweigh the harm in doing so. Knox FC entered an order to this effect, finding that it would not be in Child’s best interest to remove him from the Paternal Grandparents’ home and awarding Mother standard, unsupervised visitation.

Mother argued to CA that Knox FC erred in awarding custody to Paternal Grandparents, because they were not de facto custodians and she was not unfit. Paternal Grandparents asserted that Laurel DC decided the issue of de facto custodians, so that any further adjudication on this issue would be barred by res judicata, and that they are de facto custodians.

CA noted that a de facto custodian is defined in KRS 403.270(1)(a) as: :[A] person who has been shown by clear and convincing evidence to have been the primary caregiver for, and financial supporter of, a child who has resided with the person for a period of six (6) months or more if the child is under three (3) years of age and for a period of one (1) year or more if the child is three (3) years of age or older or has been placed by the Department for Community Based Services.” CA stated that once it determines that such a person is a de facto custodian, TC shall give the person the same standing in custody matters that is given to each parent under this section, and determine custody in accordance with the best interests of the child.

CA found that there was no prior finding that Paternal Grandparents were de facto custodians, nor were there any findings that Paternal Grandparents were the primary caregivers and financial supporters of Child for the required statutory period, despite the fact that the form AOC-DNA-9 had some boxes checked in this regard. Therefore, before Knox FC may determine custody as between Mother and Paternal Grandparents using a best interests standard, CA held it must first independently decide that Paternal Grandparents are de facto custodians. As such a finding had never been made, CA vacated Knox FC’s order and remanded for a determination of whether Paternal Grandparents meet the requirements to be de facto custodians.

As digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Mother appealed from TC’s order denying her motion for custody of her natural child and awarding continued permanent custody to Paternal Grandmother and Step-Grandfather (“Paternal Grandparents”). Mother and Father were never married, and Father never participated in the action or otherwise sought custody of Child. Mother is now married and has another child.

Child was first removed from Mother and placed in the temporary custody of CFC in January 2004 by Whitley District Court (“Whitley DC”) on the basis of Mother’s drug use and the fact that she left Child with Paternal Grandparents for the preceding two months; CFC placed Child with Paternal Grandparents. After adjudication hearing but before disposition hearing, Whitley DC transferred the case to the Laurel District Court (“Laurel DC”). Laurel DC, after permanency hearing, subsequently ordered that the permanency plan was placement with a permanent custodian pursuant to CFC’s recommendation and named Paternal Grandparents as the permanent custodians. Laurel DC entered a permanent custody order the same day, presumably naming Paternal Grandparents as Child’s permanent custodians, although the order portion of the preprinted AOC-DNA-9 form was not completed.

In the Findings of Fact portion of the form, Laurel DC indicated that it considered factors relating to a prior independent finding that a de facto custodian existed. However, CA found that the record did not contain any document reflecting a prior independent finding that a de facto custodian situation existed in this case.

Eight months later, Maternal Grandparents and Mother filed a Verified Petition for Custody in the Knox Family Court (“Knox FC”), as this was the home county of Paternal Grandparents and Child, requesting custody to Maternal Grandparents or to Mother. Knox FC permitted Mother supervised visitation with Child and ordered that she submit to random drug tests, each of which revealed a negative result. A year and a half later, Mother moved Knox FC for custody of Child, stating that she had complied with the court’s order that she rehabilitate herself, that she was married, and that she was leading a stable life. After hearing in which Mother’s witnesses testified that she had overcome her past problems with drug abuse, that she was currently a different person, and that she was capable of raising Child, and testimony regarding Mother’s past drug use and her past actions in leaving Child with Paternal Grandparents for extended periods of time, Knox FC denied Mother’s motion on the record, noting that Child had been in Paternal Grandparents’ home for more than 3 years and that the benefits of changing custody would not outweigh the harm in doing so. Knox FC entered an order to this effect, finding that it would not be in Child’s best interest to remove him from the Paternal Grandparents’ home and awarding Mother standard, unsupervised visitation.

Mother argued to CA that Knox FC erred in awarding custody to Paternal Grandparents, because they were not de facto custodians and she was not unfit. Paternal Grandparents asserted that Laurel DC decided the issue of de facto custodians, so that any further adjudication on this issue would be barred by res judicata, and that they are de facto custodians.

CA noted that a de facto custodian is defined in KRS 403.270(1)(a) as: :[A] person who has been shown by clear and convincing evidence to have been the primary caregiver for, and financial supporter of, a child who has resided with the person for a period of six (6) months or more if the child is under three (3) years of age and for a period of one (1) year or more if the child is three (3) years of age or older or has been placed by the Department for Community Based Services.” CA stated that once it determines that such a person is a de facto custodian, TC shall give the person the same standing in custody matters that is given to each parent under this section, and determine custody in accordance with the best interests of the child.

CA found that there was no prior finding that Paternal Grandparents were de facto custodians, nor were there any findings that Paternal Grandparents were the primary caregivers and financial supporters of Child for the required statutory period, despite the fact that the form AOC-DNA-9 had some boxes checked in this regard. Therefore, before Knox FC may determine custody as between Mother and Paternal Grandparents using a best interests standard, CA held it must first independently decide that Paternal Grandparents are de facto custodians. As such a finding had never been made, CA vacated Knox FC’s order and remanded for a determination of whether Paternal Grandparents meet the requirements to be de facto custodians.

As digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Inmate has no right to grand jury transcipts following post-conviction motion: WAGNER V. COM (COA 2/29/2008)

WAGNER V. COM
CRIMINAL:  Post Conviction; transcripts
2006-CA-000900
PUBLISHED: AFFIRMING
PANEL: STUMBO PRESIDING; ACREE, GRAVES CONCUR
COUNTY: BELL
DATE RENDERED: 2/29/2008

Inmate was not entitled to transcripts of his grand jury proceedings following post-conviction motion.  Further, TC did not err by failing to issue findings of facts and conclusions of law.

Scott Byrd

Waiver of right to arbitrate must be voluntary and intentional and not inferred lightly: WEIS BUILDERS, INC. V. COMPLETE CONTRACTING, INC. (COA 2/29/2008)

WEIS BUILDERS, INC. V. COMPLETE CONTRACTING, INC.
ARBITRATION: WAIVER
2007-CA-000700
PUBLISHED: REVERSING AND REMANDING
PANEL:  STUMBO PRESIDING; ACREE, GRAVES CONCUR
COUNTY: POWELL
DATE RENDERED: 2/29/2008

Weis appealed arguing the circuit court improperly concluded that Weis waived its unilateral authority to compel arbitration pursuant to the terms of a contract between the parties.  At issue was correspondence wherein counsel for Weis Builders stated,“[a ]t this point in time, Weis Builders ’ preference is to litigate the dispute rather than arbitrate it, although this is open to discussion.”  Complete Contracting would later maintain that this statement represented Weis Builders ’ decision under the contract to proceed with litigation rather than arbitration. Conversely, Weis Builders would argue that the letter evidenced no decision, but rather was merely an invitation to discuss the matter.

COA held the circuit court erred in determining that Weis Builders waived its contractual right to resolve the dispute through arbitration.  A waiver may be either express or implied,although waiver will not be inferred lightly.” Conseco Finance Servicing Corporation v..Wilder ,47 S.W.3d 335 (Ky.App.2001).

The statement that it was Weis's “preference is to litigate ” did not constitute “a voluntary and intentional surrender or relinquishment of a known right.” One may not reasonably conclude that Weis Builders would be “open to discussing ” its “preference ” if it were not preserving the right to change that preference.

Michael Stevens

LAWWIRE: Feb. 22, 2008 - KENTUCKY COURT OF APPEALS DECISIONS (2008:10)(COA)

Feb. 22, 2008 -  KENTUCKY COURT OF APPEALS DECISIONS (2008:10)

• HTML Version of the LawWire - Published and Nonpublished decisions
• PDF Version of the LawWire
• COA Argument Calendars
• SCOKY Argument Calendars
• Published decisions are digested below with links to full text, but the "not to be published" can be found in the minutes (by name, court, judges, decision, number, county, and LINK to full text)
• MINUTES from AOC for this week saved at our site and click here for the AOC's Official Minutes [which is provided for backup purposes]
• 35 rendered decisions
  • Nos. 218-252
  • 5 published decisions

Teacher's injury at convention with students arose out of employment for workers comp claim: CLARK COUNTY BOARD OF ED. V. JACOBS (COA 2/22/2008)

CLARK COUNTY BOARD OF ED. V. JACOBS
WORKERS COMP:  Arising out of employment
2007-CA-001575
PUBLISHED: AFFIRMING
PANEL:  THOMPSON PRESIDING; NICKELL, VANMETER CONCUR
COUNTY: WCB
DATE RENDERED: 2/22/2008

The Court affirmed an award of disability benefits to a teacher who fell while attending a beta-club convention with her students out of town. The Court held that the activity benefited the employer, and therefore arose out of employment even though it occurred away from the employer’s premises.

Peter Naake

Physician's satellite offices primarily for diagnostic testing not included in KRS 216B.010 certificate of need: GILBERT, M.D. V. COM. CAB. FOR HEALTH AND FAMILY SVCS. (COA 2/22/2008)

GILBERT, M.D.  V. COM. CAB. FOR HEALTH AND FAMILY SVCS.
MEDICAL FACILITY LICENSURE: APPLICABILITY OF EXEMPTION TO CERTIFICATE OF NEED REQUIREMENT
2007-CA-000042
PUBLISHED: AFFIRMING
PANEL: ACREE PRESIDING; KELLER, MOORE CONCUR
COUNTY: FRANKLIN
DATE RENDERED: 2/22/2008

John Gilbert, a well-known neurologist based in Lexington, his medical company and his satellite offices (collectively "Gilbert") appeal the TC's Order affirming the decision of the Cabinet for Health & Family Services finding Dr. Gilbert in violation of KRS 216B.010, et seq., by operating health facilities with MRI services in London, Hazard and Florence without first obtaining a certificate of need ("CON"). Gilbert's main contention on appeal was that his facilities are exempt from licensure per KRS 216B.020(2)(a), which exempts "private offices and clinics of physicians, dentists and other practioners of the healing arts." The Cabinet deemed this statute inapplicable since Gilbert did not actively practice at the 3 satellite offices and thus could not be considered a physician's "private office." Gilbert conversely argued that the statute includes no element of personal active participation at the offices, only ownership.

    

The COA began its analysis by ruling that since both party's interpretation of the subject statute was reasonable, the statute was ambiguous not on its face but as applied, and therefore constituted a latent ambiguity. The COA then turned to the legislative intent, and first noted its agreement with Gilbert that the Legislature did not intend to prohibit or discourage any physician from establishing satellite offices in medically underserved communities such as Hazard and London in this instance by permitting the exemption only if the physician owner personally and actively participated in the practice at each office. To remove any doubt, the COA affirmatively held that no such personal, active participation is required. On the other hand, the COA felt that the real focus of the Cabinet's inquiry should have instead been on the kind of activity that usually takes place at the office for which an exemption is sought. To this end, Gilbert had the burden of demonstrating to the Cabinet that the exemption was, in fact, available and applicable to each of the 3 offices.

         

The COA's review of the official record found that each of the 3 offices were primarily used as diagnostic facilities for patients referred by other physicians and were not used primarily to obtain scans for diagnosis of Gilbert's own patients as he claimed. The evidence showed that no licensed physician was even actively present at the two eastern Kentucky offices while the physician who did work at the Florence office only read the films from the MRI scans performed at that office on patients referred by other physicians. Thus, the COA concluded that all three offices had all the hallmarks of a diagnostic testing facility. As such, the exemption under KRS 216B.020(2)(a) did not apply and a CON was needed for all three facilities on an individual basis, which Gilbert had failed to obtain. The TC's Order sustaining the ultimate decision of the Cabinet was affirmed by the COA.

By Chad Kessinger, Schiller Osbourn Barnes & Maloney

Juvenile DNA collection and testing limited: PETITIONER F v. BROWN (COA 2/22/2008)

PETITIONER "F" V. BROWN
CRIMINAL:  Juvenile DNA Testing
2006-CA-002450
PUBLISHED: AFFIRMING IN PART, AND REVERSING AND REMANDING IN PART
PANEL: VANMETER PRESIDING; COMBS, MOORE CONCUR
COUNTY: FRANKLIN
DATE RENDERED: 2/22/2008

The issue in this appeal is whether the Franklin Circuit Court erred by granting summary judgment in Brown's favor as to whether the DJJ could collect DNA samples from seven unnamed juveniles. For the following reasons, CA affirmed in part and reversed and remanded in part.

KRS 17.174 applies to juveniles who have been adjudicated public offenders for the commission or attempted commission of offenses defined in KRS 17.170 or KRS 17.171. However, the statutes do not require samples to be taken from juveniles who have been adjudicated of burglary. The DJJ was not required to promulgate any administrative regulations prior to its implementation of DNA sampling as required by KRS 17.174. Weighing the totality of these circumstances, the collection of the appellants' DNA samples is reasonable, and does not violate the appellants' right to be free from unreasonable searches and seizures.

Digested by Scott C. Byrd
www.olginandbyrd.com

Emergency Medical Treatment and Active Labor Act (EMTLA) is not a federal medical malpractice act: OHIO COUNTY HOSP. CORP. V. TINA MARTIN, ADMIN. OF EST. OF BILLIE CAROL SHREVE, DECEASED; AND DONALD RAY SHREVE, INDIVIDUALLY (COA 2/22/2008)

OHIO COUNTY HOSP. CORP. V. TINA MARTIN, ADMIN. OF EST. OF BILLIE CAROL SHREVE, DECEASED; AND DONALD RAY SHREVE, INDIVIDUALLY 
MEDICAL NEGLIGENCE:  EMTLA (Emergency Medical Treatment and Active Labor Act)
2006-CA-002248
PUBLISHED: AFFIRMING IN PART, REVERSING IN PART, VACATING IN PART, AND REMANDING
PANEL: BUCKINGHAM PRESIDING; THOMPSON CONCURS W/SEP. OP.; TAYLOR CONCURS IN RESULT ONLY IN PART AND FILES SEP. OP.
COUNTY: HARDIN
DATE RENDERED: 2/22/2008

CA affirms in part, reverses in part, vacates in part, and remands this case alleging medical malpractice and EMTALA violations.

Decedent was in an automobile collision, transported to Ohio County Hospital, and evaluated by an RN and ER doctor, reporting discomfort. Her condition deteriorated and approximately 90 minutes later she became unconscious. The doctor diagnosed shock and likely hemorrhaging, ordering a CT scan to determine its location. Decedent received blood transfusions. With the scans, the doctor found abdominal bleeding requiring surgery. Finding no surgeons available, the doctor made arrangements to transport her to Owensboro for surgery. She bled to death by the time she reached Owensboro.

Appellees sued, alleging med mal and EMTALA violations, i.e., 1) failure to screen; and 2) failure to stabilize. The doctor settled before trial. The jury found 50% liability each for doctor and hospital (none for other driver) and awarded nearly $100,000 for destruction of power to earn money and pain and suffering and $250,000 for husband's loss of consortium. Hospital appealed, arguing the TC erred in not granted directed verdicts.

CA holds that EMTALA is not intended to be a federal malpractice statute; it is intended to address patient "dumping" based upon inability to pay. Therefore, violation of EMTALA's screening requirement must be predicated upon a showing of improper motive, which was not shown here. Further, EMTALA's stabilization requirement does not prevent transfer, it merely conditions transfer on certain requirements, which were met here.

As to the loss of consortium claim, CA holds that the claim is only viable for the period between injury and death. It does not extend beyond. As no appreciable time had elapsed between the alleged injury and death in this case, the TC erred in not granted directed verdict. The med mal verdict should be affirmed, but, as the awarded damages were not segregated as to each claim, the award must be vacated and remanded for a new trial.

Digested by John E. Hamlet

Multiple issues regarding search and jury insructions still results in affirmance of conviction: NASH V. COM. (COA 2/22/2008)

NASH V. COM.
CRIMINAL:  Search warrants; Jury instructions
2005-CA-002179
PUBLISHED: AFFIRMING
PANEL: HENRY PRESIDING; KELLER, TAYLOR CONCUR
COUNTY GRAYSON
DATE RENDERED: 2/22/2008

CA affirmed Defendant's convictions for possession of anhydrous ammonia in an unapproved container with the intent to manufacture methamphetamine and possession of drug paraphernalia. Relying on Maryland v. Garrison, 480 U.S. 79, 88, 107 S.Ct. 1013, 1018-1019, 94 L.Ed.2d 72 (1987), CA held suppression of the modified air tank was not required and the trial court did not err by declining to suppress that evidence. Although the search exceeded the scope of the search warrant, there is substantial evidence in the record that the officers' mistake was reasonable given the circumstances. There was no KRE 404(b) error by the admission of the statement that Nash used the modified air tank containing anhydrous ammonia in order to manufacture methamphetamine. TC did err by failing to provide a definition of "approved container" in the jury instructions; however, the error was harmless.

Scott Byrd
www.olginandbyrd.com

Minutes for Kentucky Court of Appeals for April 25, 2008 (COA) (2008:21)

• Click here for PDF copy of Minutes posted at AOC with links to each published and non-published decision this week. 
• 17 rendered decisions - Numbered 485-501
  • 2 published
    • 497 - Finance and Admini. Cab. v. Slagel
    • 498 - Graham v. Rogers

  Minutes List - all published and nonpublished decisions with links to the full text of the decision posted at AOC's web site plus orders regarding dismissals, extraordinary writs, discretionary review. 

  • Court of Appeals Minutes List 
  • Supreme Court Minutes List

Minutes for Kentucky Supreme Court for April 24, 2008 (2008:20)

• Click here for  minutes at AOC with links to full text of each decision
• 32 rendered decisions:  71-102
• 20 published (71-90)
• 7 disciplinary matters (4 published)
• 7 of 44 cases granted discretionary review - 15.9% grant rate
• Minutes List of all published and nonpublished SCOKY decisions with links to the full text of the decision posted at web site plus orders regarding dismissals, extraordinary writs, discretionary review.

Minutes for Kentucky Court of Appeals for April 18, 2008 (COA) (2008:19)

• Click here for PDF copy of Minutes posted at AOC with links to each published and non-published decision this week. 
• For our copy of the minutes, click here.
• 23 rendered decisions - Numbered 462-484
  • 3 published - 465 (Com. v. Lopez); 467 (Pennington v. Greenup County Bd. of Ed); 473 (Brd. of Trustees v. Estate of Daisey Chaney)

  Minutes List - all published and nonpublished decisions with links to the full text of the decision posted at AOC's web site plus orders regarding dismissals, extraordinary writs, discretionary review. 

  • Court of Appeals Minutes List
  • Supreme Court Minutes List

ARGUMENTS: April 2008 SCOKY Argument Calendar

Apologies for this last posting.  However, the parties, counsel, issues and links to briefs are provided.

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

For Kentucky Supreme Court LIVE arguments, click here on date and time of argument.

Sorry for the delay in posting this after the fact.  Mostly for 'informational' purposes now.  Click here for the April SCOKY Argument Calendar of cases heard.  At least you can see the cases, issues, parties, counsel, and links to the briefs filed and found at Chase Law School at NKU.

WEDNESDAY, APRIL 16, 2008

9:00 a.m. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES, ET AL. V. T.G., MOTHER (2007-SC-436-DGE) AND (CROSS-MOTION) T.G., MOTHER V. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES, ET AL. (2007-SC-821-DGE)
"Termination of Parental Rights. Issues include the constitutionality of KRS 625.090(1)(a)(1), either facially or in application."
Discretionary review granted 10/24/2007 and 12/12/2007
Jefferson Circuit Court, Judge Stephen M. George
For Movants/Cross-Respondent: Erika Saylor and Catherine I. Wallace
For Respondent/Cross-Movants: Gregory W. Butrum

Appellant’s Brief 

Appellee’s Brief 

Appellant's Reply Brief 

Appellee's Reply Brief

10:00 a.m. DIXON V. COMMONWEALTH OF KENTUCKY (2006-SC-682-MR)
"First degree assault, first degree robbery and first degree rape - 47 years. Were defendant's double jeopardy rights violated by his conviction of first degree assault and first degree rape for the same physical injury? Should the jury have been instructed on facilitation to commit robbery and rape as lesser included offences to commit those crimes."
Greenup Circuit Court, Judge Lewis D. Nicholls
For Appellant: Euva May
For Appellee: Jason Bradley Moore

Appellant’s Brief 

Appellee’s Brief 

Appellant's Reply Brief

11:00 a.m. CHILDERS OIL COMPANY, INC. V. ADKINS, ET AL. (2007-SC-32-DG)
"Employment Discrimination. Age Discrimination. Punitive Damages. Jury Instructions. Sufficiency of Evidence. In action alleging employment discrimination based on age, issues include whether objection to jury instruction permitting punitive damages under KRS Chapter 344 was properly preserved; and whether plaintiffs evidence was insufficient to support finding of age-based discrimination and/or award of damages for emotional distress."
Discretionary review granted 8/15/2007
Pike Circuit Court, Judge Steven D. Combs
For Movant: Lawrence E. Forgy, Jr. and Darrell Hall
For Respondents: Lawrence R. Webster

Appellant’s Brief 

Appellee’s Brief 

Appellant's Reply Brief

THURSDAY, APRIL 17, 2008

9:00 a.m. BURTON V. CSX TRANSPORTATION, INC. (2006-SC-695-DG)
"Personal Injury. Exposure to Toxic Substances. Evidence. Issues include the propriety of (1) excluding some opinion evidence of a plaintiffs expert, (2) excluding a study of similar injuries experienced by others also exposed to the same type of substances, and (3) declaring a defense witness eligible to testify pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)."
Discretionary review granted 2/14/2007
Jefferson Circuit Court, Judge A.C. McKay Chauvin
For Movant: Kenneth L. Sales, Joseph D. Satterley, Paul Jason Kelley, and Corey Ann Finn
For Respondent: Raymond G. Smith, Edward H. Stopher, David T. Klapheke, and Scott A. Davidson

Appellant’s Brief 

Appellee’s Brief 

Appellant's Reply Brief

10:00 a.m. HARTSFIELD V. COMMONWEALTH OF KENTUCKY (2007-SC-77-DG)
"Criminal Law. Right to Confrontation. Following death of alleged rape victim prior to defendant's trial, issues raised in motion in limine relate to the admissibility, in light of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004), of statements made by alleged victim to the Sexual Assault Nurse Examiner during medical examination and collection of evidence, and statements made by the alleged rape victim after she ran from her home following the incident."
Discretionary review granted 5/16/2007
Fayette Circuit Court, Judge Gary D. Payne
For Movant: V. Gene Lewter
For Respondent: Kenneth Wayne Riggs
(Note: Justice Abramson is recused)

Appellant’s Brief 

Appellee’s Brief

Minutes for Kentucky Court of Appeals for April 11, 2008 (COA)(2008:18)

• Click here for PDF copy of Minutes posted at AOC with links to each published and non-published decision this week. 
• For our copy of the minutes, click here.
• 26 rendered decisions - Numbered 436-461
  • 2 published - 439 (Barkman v. Overstreet MD); 440 (Young v. KFBM); 450 (Stapleton v. Shower MD)

  Minutes List - all published and nonpublished decisions with links to the full text of the decision posted at AOC's web site plus orders regarding dismissals, extraordinary writs, discretionary review. 

  • Court of Appeals Minutes List
  • Supreme Court Minutes List

LAWWIRE: FEB 21, 2008 SUPREME COURT OF KENTUCKY DECISIONS (Vol. 2008:09)

FEB 21, 2008 SUPREME COURT OF KENTUCKY DECISIONS (Vol. 2008:09)

• HTML Version of the LawWire - PUBLISHED and NonPUBLISHED decisions.
• PDF Version.
• MINUTES from AOC for this week (from AOC Web Site)
• Decisions no. 24-49
  • 26  decisions rendered with 10 published;
  • 10 Disciplinary cases with 5 published;
  • 4 of 43 discretionary reviews granted (or 16.3% granted);
  • 7 of 26 (26.9 %) rendered decisions vacated and/or reversed and/or remanded in part
• Useful SCOKY Links at AOC web site:
  • Complete table of minutes - organized by year and month
  • Argument Calendars
  • Discretionary Review List of currently pending cases
  • Search SCOKY and COA decisions
  • Supreme Court Case Info

Equitable estoppel did not apply in zoning case under facts and zoning action was arbitrary: Sebastian-Voor Properties, LLC, et al. v. Lexington-Fayette Urban County Government, et al. (SC 2/21/2008)

Sebastian-Voor Properties, LLC, et al. v. Lexington-Fayette Urban County Government, et al.
ZONING:  Land Use Planning
PUBLISHED: AFFIRMING
OPINION BY SCHRODER; NOBLE NOT SITTING; ABRAMSON CONCURRING IN RESULT ONLY
DATE RENDERED:  2/21/2008
2006-SC-000732-DG.pdf
NOT PUBLISHED: 930
DATE RENDERED: 2/21/2008

In 1963 the Lexington-Fayette County Planning Commission (“Commission”) approved a preliminary development plan for 122 one-acre lots in an agriculturally zoned area. Only 40 of the lots received final plat approval within the statutorily allowed time. Another 19 lots received approval in 1966 after the preliminary plan was re-approved. In 1967, the zoning regulations were changed to increase the minimum residential lot size from 1 acre to 10 acres. However, over the next 29 years, the Commission, contrary to existing regulations, approved final plats for 17 additional one-acre lots.

In 2002, the property owner applied for preliminary approval for one-acre lots on the remaining 59 acres. The Commission denied approval because the lots did not meet the minimum lot size and did not qualify for septic service. The owner appealed and moved for summary judgment on the grounds of equitable estoppel, arguing that prior approvals created vested property rights. The circuit court denied the motion. The owner again appealed. The court of appeals held that while equitable estoppel may be invoked against a governmental entity under exceptional circumstances, the facts of the case did not rise to that level. The Kentucky Supreme Court granted discretionary review.

The Supreme Court affirmed, stating that the proposed development did not comply with the current zoning regulations so that the Commission’s decision to deny the plan was not arbitrary. It stated that the owner, to develop as proposed, must seek a zone map amendment. The court also affirmed the decision that equitable estoppel did not apply because a public official’s previous erroneous interpretation of the law does not prevent a later proper interpretation.

Digest by Sam Hinkle