Kentucky Court Report - SCOKY & COAKY

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.

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

PUBLISHED OPINIONS KENTUCKY COURT OF APPEALS

OCTOBER 2011

I. ATTORNEY AND CLIENT

A. Anderson v. Pete

2010-CA-000472 10/7/11 2011 WL 4633096

Opinion by Judge Wine; Chief Judge Taylor and Judge Moore concurred. The Court reversed and remanded a summary judgment in favor of the appellees on appellants’ professional negligence claims springing from a prior action in which the appellee attorney filed suit on behalf of the appellants’ father’s estate for wrongful death. The Court first held that the trial court erred in granting summary judgment to appellees because there was a genuine issue of material fact as to whether the attorney was in privity with the minor children and whether he was representing the Estate and the children’s mother personally, as well as next friend of the children. The Court then held that even if the attorney was found not to be in privity with the children, he still owed duties to the children as intended beneficiaries of the wrongful death action. Whether the attorney’s performance was actually negligent or otherwise deficient was a matter that must first be considered by the trial court but the question survived summary judgment.

II. CIVIL PROCEDURE

A. Birchwood Conservancy v. United Brotherhood of Carpenters

2009-CA-001413 10/7/11 2011 WL 4632921 DR Pending

Opinion by Judge Acree; Judges Dixon and Nickell concurred. The Court affirmed in part, reversed in part and remanded an opinion and order of the circuit court dismissing the claims by an unincorporated association against the appellee union alleging the union breached a contract to construct and demolish barns. The Court first held that the circuit court did not lack subject matter jurisdiction, as it acquired jurisdiction when the complaint was filed and summons issued. The Court then held that the union irrevocably waived the defense of lack of subject matter jurisdiction because it never raised the defense in its pre-answer motion to dismiss the original complaint, in its answer to that complaint, or in a matter-of-course amendment to the answer. The Court finally held that the union also waived the lack-of-capacity defense. While the defense was not irrevocably waivable like the lack-of-personal-jurisdiction defense and the union could have asserted it for the first time in a response to a second amended complaint, its failure to do so was a waiver of the defense.

B. Catchen v. City of Park Hills

2010-CA-001069 9/30/11 WL Citation Not Available

Opinion by Chief Judge Taylor; Judges Caperton and Wine concurred. The Court affirmed in part, reversed in part and remanded an order of the circuit court dismissing appellant’s complaint seeking to enjoin the appellee city from paying a promissory note and a declaration that the real estate transaction between the appellees was void. The Court first held that the circuit court properly dismissed the complaint to the extent it sought to challenge the purchase of the property. Appellant did not have standing to challenge the official acts of the city regarding expenditures for the property because he did not allege an injury distinct from the general public. Appellant’s reliance on KRS 92.340 to confer standing was misplaced because no officer, agent, employee or member of the legislative body was a party to the action. The Court then held that the trial court erred in finding that appellant did not have standing to challenge the imposition of the tax imposed by an ordinance, a portion of which was to be combined with funds from the general fund to pay the outstanding note indebtedness related to the purchase of the property.

C. Hammers v. Plunk

2010-CA-000279 10/21/11 2011 WL 5008045

Opinion by Judge Wine for the Court sitting en banc; all Judges concurred. The Court reversed and remanded orders of the circuit courts dismissing as time-barred under KRS 44.110, appellants’ claims that individual employees of the Kentucky Department of Transportation were negligent in their maintenance of certain roadways. The Court held that the trial courts erred in dismissing the claims. KRS 44.110 was inapplicable because it applied only to causes arising within the Board of Claim against the Commonwealth or its immune agents or employees but not to actions originating in the circuit court against non-immune agents or employees of the Commonwealth. The Court overruled Wagoner v. Bradley, 294 S.W.3d 467 (Ky. App. 2009), to the extent that it purported to apply the one-year limitations period in KRS 44.110 to an action brought in circuit court. The Court further held that the claims raised by the estate for wrongful death and by the minor children for personal injury were covered under the two-year limitations period set forth in KRS 304.39-230(6), which began to run upon the date of the last basic or added reparation payment. The Court also held that the children’s loss of consortium claim was subject to the one-year statute of limitations under KRS 413.140(1)(a) but that the limitations period was tolled due to the children’s infancy, which also tolled their personal injury claims. The Court finally held that the trial court did not err in finding that the two-year limitations period in KRS 304.39-230 was equitably tolled to allow the estate’s claims to proceed when the one-day-late filing was caused by the clerk of the court.

D. Morgan v. Appalachian Regional Healthcare, Inc.

2010-CA-000197 10/14/11 2011 WL 4861859

Opinion by Judge Wine; Judge Acree and Senior Judge Lambert concurred. The Court affirmed a judgment and order of the circuit court finding that appellant had breached a loan agreement and addendum with appellee and awarding appellee damages plus interest and attorneys’ fees and costs The Court first held that no jurisdictional questions were raised by the trial court amending the summary judgment order to include the award of damages and attorneys’ fees. The order granting summary judgment on the issue of liability was not a final judgment because it did not adjudicate the entirety of the claim. Moreover, it was not made final under CR 54.02, even though it included the finality recitations of that rule. The Court next held that appellant was not entitled to reversal because he did not receive notice of the amended judgment order until after the ten-day period for challenging a final judgment under CR 59.05 had expired because appellant failed to show any reversible prejudice. Any objection to appellee’s calculation of damages clearly could have and should have been presented to the circuit court before entry of the amended judgment and order. Moreover, the validity of the judgment was not affected by the failure of appellant to receive notice of entry of the judgment and order. Appellant was able to file a timely Notice of Appeal to challenge the amended judgment and order, CR 60.02 afforded him an avenue to seek relief on the ground asserted, and the record did not contain any notice of a substitution of counsel or a notice of change of address advising the circuit court and appellee that counsel wished to be served at another address. The Court finally held that the circuit court did not err in dismissing appellant’s counterclaim for breach of contract, which was predicated on an assertion that appellee was required to pursue alternative dispute resolution. While the parties’ employment agreement required disputes to be submitted to arbitration, the loan agreement, which was the subject of the breach of contract claim, did not contain an arbitration clause, the loan agreement was not expressly incorporated into the employment agreement, and by the language of the employment agreement, the loan agreement and addendum remained in effect according to their original terms.

III. CONSITUTIONAL LAW

A. Kentucky Office of Homeland Security v. Christerson

2009-CA-001650 10/28/11 2011 WL 5105253

Opinion by Judge VanMeter; Judge Wine concurred; Senior Judge Shake concurred in part and dissented in part by separate opinion. On appeal and cross-appeal, the Court affirmed in part, reversed in part and remanded an order of the circuit court finding that KRS 39A.285 and KRS 39G.010 violated the First and Fourteenth Amendments to the United States Constitution and Section 5 of the Kentucky Constitution and that the American Atheists lacked standing in the underlying action. The Court first held that the circuit court erred in finding that the challenged statutes violated the United States and Kentucky Constitutions. The Kentucky legislature made legislative findings in KRS 39A 285(3), which referenced the Commonwealth being protected by an “Almighty God” and required such findings to be publicized in Kentucky Office of Homeland Security training materials and posted at the State Emergency Center. KRS 39G.010(2)(a) required the executive director of the Kentucky Office of Homeland Security to publicize those findings. Because the legislative findings neither mandated exclusive reliance on Almighty God nor belief in a particular deity but rather, made reference to historic instances where American leaders prayed for Divine protection in trying times, the statute did not violate the Establishment Clause. Similarly, viewed against the historical background, the statutory references to God, like the other constitutional references to God, did not violate the prohibition of Section 5 of the Kentucky Constitution, or impinge on the freedom to believe or disbelieve. The Court also held that the trial court did not err by finding that the America Atheists lacked standing to bring the action on behalf of its members. Because the association sought damages on behalf of its members, alleging its members suffered physical and emotional damages, without participation of the members, a court would have no way to determine the appropriateness of any award.

IV. CONTRACTS

A. Sohal Properties, LLC v. MOA Properties, LLC

2010-CA-001833 10/21/11 2011 WL 5008330

Opinion by Judge Combs; Judges Caperton and Thompson concurred. The Court affirmed in part, reversed in part and remanded a judgment of the circuit court determining that appellees were entitled to possession of the premises they leased to appellant, that appellees were entitled to keep the entirety of a substantial security deposit, and dissolving a notice of lis pendens filed by appellant. The Court first held that appellees were not precluded by the resolution of district court proceedings from denying appellant had acquired an equitable interest in the hotel property beyond the lease term because the district court lacked subject matter jurisdiction and therefore, there had not been an adjudication on the merits. The Court next then held that under the particular circumstances, the trial court erred in allowing appellees to keep the entirety of the $500,000.00 non-refundable security deposit. Because the amount was grossly disproportionate to any anticipated loss flowing from a breach of the parties’ lease agreement it must be construed as an impermissible penalty or forfeiture rather than as valid liquidated damages. The Court also held that the trial court did not err by concluding that appellees were entitled to possession of the premises pursuant to the plain language of the lease agreement. The Court finally held that the trial court erred in dissolving the notice of lis pendens. Appellant had the right to maintain its notice of lis pendens throughout the pendency of the action, which remained pending while the appeal was being prosecuted.

V. CRIMINAL LAW

A. Arnett v. Commonwealth

2010-CA-001903 10/7/11 2011 WL 4634231

Opinion by Judge Lambert; Judges Caperton and Keller concurred. The Court affirmed appellant’s conviction for first-degree sexual abuse entered pursuant to a guilty plea wherein appellant reserved the right to appeal whether first-degree sexual abuse was a probation-eligible charge. The Court held that the trial court did not abuse its discretion in finding that the minor victim was greatly affected by the crime and that probation would unduly depreciate the serious nature of the crime. The Court also held that the issue of whether probation was permissible because appellant was statutorily a violent offender under KRS 532 080, KRS 439.3401 or KRS 533.060, was moot because even if she was eligible, the trial court had already ruled it would not grant probation.

B. Cardwell v. Commonwealth

2009-CA-002401 10/14/11 2011 WL 4862418

Opinion and order by Judge Nickell; Judges Acree and Moore concurred. The Court dismissed as frivolous appellant’s successive motion for post-conviction relief and directed the circuit court to deny all future requests for in forma pauperis status appellant might file to pursue subsequent collateral attacks on his conviction. The Court held that while appellant acting pro se was not subject to the same standards as litigants represented by counsel, his successive motions for post-conviction relief were prohibited and that the Court could bar prospective filings to prevent the deleterious effect of such filings on scarce judicial resources.

C. Commonwealth v. Smith

2010-CA-001703 10/28/11 2011 WL 5105466

Opinion by Judge Acree; Judges Moore and Nickell concurred. The Court reversed an order of the circuit court dismissing an indictment with prejudice. The Court held that the circuit court could not convert the dismissal of the criminal indictment without prejudice to a dismissal with prejudice nine years after entry of the original dismissal. The trial court lost jurisdiction over the order ten days after its entry. Appellant was required to either file a timely motion pursuant to CR 59.05 motion to alter, amend or vacate or to pursue an appeal in compliance with CR 73.02(1)(a), neither of which he did.

D. Hall v. Commonwealth

2010-CA-001878 10/21/11 2011 WL 5008333

Opinion by Judge Thompson; Judges Caperton and Combs concurred. The Court affirmed a judgment of the circuit court entered pursuant to a jury verdict finding appellant guilty of second-degree manslaughter and sentencing him to five years’ imprisonment after he struck and killed his wife with a pontoon boat he was operating. The Court first held that the trial court did not err in excluding expert testimony offered for the purpose of proving that the police used a specific technique to interrogate appellant. The testimony had no relevance to appellant’s guilt or innocence because the reliability of his statements to the police were not challenged. The Court next held that the trial court erroneously admitted testimony of a romantic relationship between appellant and a co-worker when the testimony did not tend to establish any connection between the relationship and the wife’s death or provide a context for the events leading to the wife’s death. However, the Court held that, based on the overwhelming evidence of appellant’s reckless conduct, the error was harmless. The Court next held that the trial court did not err when it permitted witnesses to testify that appellant intentionally accelerated the boat toward his wife and struck her. KRE 701 permitted the lay witnesses to testify to the facts as they were observed. The Court finally held that the trial court did not err in finding that all written statements were made available to defense counsel pursuant to RCr 7.26.

E. Matthews v. Commonwealth

2010-CA-001157 10/14/11 2011 WL 4862427

Opinion by Judge Lambert; Judges Dixon and VanMeter concurred. The Court affirmed a final judgment of the circuit court convicting appellant of first-degree trafficking in a controlled substance (cocaine) and for being a first-degree persistent felony offender. The Court first held that a detective’s discovery of a cell phone number on one of appellant’s cell phones (after he was arrested on an active bench warrant and without a warrant) to check if it matched a number given to a confidential informant during a drug buy did not constitute a search for Fourth Amendment purposes. Therefore, the circuit court did not err in denying the motion to suppress that evidence. The Court next held that the circuit court did not abuse its discretion in denying appellant’s pretrial motion to exclude evidence of other crimes or bad acts pursuant to KRE 404(b) by permitting introduction of a letter appellant passed to another inmate. The letter was properly admitted to show appellant was attempting to intimidate the confidential informant from testifying against him. The Court next held that the Commonwealth’s closing argument did not result in manifest injustice. The Court next held that the Commonwealth did not fail to prove that appellant was 18 years old when he committed one of the prior felonies upon which the conviction was based, as the jury could reasonably conclude from the evidence that appellant had reached the age of 18 at the time he committed the prior felonies. The Court next held that there was no basis for the trial judge to recuse because the judge was the Commonwealth Attorney at the time of appellant’s prior conviction. The prior conviction was not the matter in controversy and therefore, the judge’s position at that time was immaterial. The Court finally held that because there was no error in any of the allegations raised in appellant’s brief, there was no cumulative error.

F. Stevens v. Commonwealth

2010-CA-001913 10/14/11 2011 WL 4862436

Opinion by Judge Lambert; Chief Judge Taylor and Judge Dixon concurred. The Court affirmed a judgment sentencing appellant to one year of imprisonment after he entered a conditional guilty plea to two counts of receiving stolen property over $300.00. The Court first held that because the Commonwealth did not file a cross-appeal the issue of whether the trial court erroneously granted a motion to suppress an initial motion to suppress evidence found in a warrantless search of appellant’s property was not properly before the Court. The Court then held that the trial court did not err in denying a motion to suppress evidence found in a subsequent search of the property after appellant’s wife gave an oral and written consent to search. The consent to search was voluntary and was obtained after significant time had passed after the illegal search and seizure. Thus, the evidence found was not fruit of the poisonous tree.

G. Taylor v. Commonwealth

2010-CA-000674 10/21/11 2011 WL 5008086

Opinion by Judge Stumbo; Judges Caperton and Moore concurred. The Court affirmed an order of the circuit court denying appellant’s petition to declare him a victim of domestic violence under KRS 439.3402 and motion to reopen RCr 11.42 proceedings The Court held that the circuit court did not err in finding that the KRS 439.3402 motion for relief should have been brought, if at all, either at sentencing, on direct appeal, or by way of appellant’s previous motions for RCr 11.42 and CR 60.02 relief. Further, any argument relating to the application of KRS 439.3402 was moot because appellant had repeatedly violated the terms of his probation, resulting in revocation of his probation.

H. Valesquez v. Commonwealth

2009-CA-000147 10/28/11 2011 WL 5110268

Opinion by Judge Lambert; Judges Keller and Thompson concurred. On remand from the United States Supreme Court, the Court affirmed a judgment and sentence of probation wherein appellant entered a guilty plea, reserving his right to appeal the denial of a motion to suppress contraband discovered in his vehicle after a traffic stop and his arrest for driving on a suspended license. The Court held that in light of Davis v. United States, 564 U.S. ___, 131 S.Ct. 2419, 180 L.Ed. 285 (2011), because the officers conducted the search of appellant’s vehicle in reasonable reliance on binding appellate precedent, the exclusionary rule did not apply and the evidence obtained in the search should not have been suppressed. Therefore, the trial court did not err as a matter of law in denying the motion to suppress the evidence obtained as a result of the warrantless search of appellant’s vehicle.

VI. GOVERNMENT

A. Helbig v. City of Bowling Green, Kentucky

2011-CA-000077 9/2/11 WL Citation Not Available

Opinion by Judge Moore; Judge Dixon and Senior Judge Lambert concurred. The Court affirmed an order of the circuit court dismissing appellant’s claim that the appellee city demoted him in retaliation for making a disclosure protected by KRS 61.102, Kentucky’s whistleblower statute. The Court held that appellant failed to establish a prima facie case for retaliation when the overtime policy he claimed violated KRS 95.495 was already public, KRS 95.495 was also publicly known, the public was presumed to know the law, and any alleged illegality with regard to the policy was readily redressable by means of a declaratory action.

VII. LICENSES

A. Beverage Warehouse, Inc. v. Commonwealth, Department of Alcoholic

Beverage Control

2009-CA-002020 10/28/11 2011 WL 5105338

Opinion by Judge Thompson; Judge Keller and Senior Judge Shake concurred. The Court affirmed opinions and orders of the circuit court addressing a third party’s right to a hearing before and after issuance of a liquor license. The Court first held that the designation of the Department of Alcoholic Beverage Control (ABC) was sufficient to confer subject matter jurisdiction to the circuit court. The statutory scheme conclusively established that the Alcoholic Control Board was not an administrative department separate from ABC and therefore, the failure to name the Board as a party was not fatal. The Court then held that the right to appeal to the ABC from a city administrator’s approval of a liquor license was expressly provided in the statutory language of KRS 241.200. Had the legislature intended to limit an appeal to an applicant or licensee, it could have used limiting language. Further, had the legislature intended to exclude the approval of a liquor license from the term “order” as used in the statute, it could have done so by including language similar to that contained in KRS 243.560. The Court also held that the ABC order dismissing the appeal was a final order because the case was finally disposed of as a matter of law in a formal adjudicatory proceeding; whether the “honest error” rule or equitable estoppel applied and whether the administrator acted in good faith were questions of fact to be decided by the ABC Board on remand; and res judicata did not preclude the relief sought.

B. Commonwealth, Cabinet for Health and Family Services v. Bluegrass Orthopaedics Surgical Division, LLC

2009-CA-001908 10/21/11 2011 WL 5008037

Opinion by Senior Judge Shake; Judges VanMeter and Wine concurred. The Court affirmed an order of the circuit court declaring that physician-owned ambulatory surgery centers (ASC) were exempt from the certificate of need requirements of KRS 216B. The Court also and reversed and remanded an order of the circuit court finding that an ASC was not exempt from KRS 216B regulation. The Court held that the ASCs at issue were distinguishable from the facilities in Gilbert v. Commonwealth, Cabinet for Health and Family Services, 291 S.W.3d 712 (Ky. App. 2008). The physician shareholders of both ASCs performed surgery on their own patients, the nature of the activity conducted included a more intimate doctor/patient relationship than that of a diagnostic testing facility or ASC owned by a third party and the doctor/patient relationship uniquely connected the ASCs to the medical offices. Because the ASCs were extensions of the physicians’ office practices and their equipment did not exceed the maximum allowable, they were entitled to exemption from regulation.

VIII. OPEN RECORDS

A. Cincinnati Enquirer v. City of Fort Thomas, Kentucky

2010-CA-001072 10/21/11 2011 WL 5008308

Opinion by Senior Judge Shake; Judge Lambert concurred; Judge Keller concurred in part and dissented in part by separate opinion. The Court affirmed in part, reversed in part and remanded an order of the circuit court finding that portions of the appellee city’s investigative file in a murder investigation were exempt from the Open Records Act The Court first held that the circuit court properly concluded that the prosecution was not yet complete when the convicted person could challenge her sentence post-conviction. Therefore, any law enforcement records exempt under KRS 61.878(1)(h) were not yet subject to disclosure. However, the Court then held that the circuit court erred by applying the law enforcement exemption to all of the investigatory records without a showing of harm by the premature release of the records and that the City bore the burden of proof of the exemption, which it failed to meet. The Court next held that the trial court erred in finding that appellant’s records request was vague as a matter of law, as there was no requirement that a records request be painstakingly detailed, so long as the information sought was identifiable. Further, appellee never suggested that the request constituted an unreasonable burden. Thus, appellant should have prevailed in its action and the trial court abused its discretion in failing to make an award of costs, fees and/or sanctions. The Court finally held that the trial court did not err when it applied the privacy exemption to redacted portions of video recordings to protect the privacy interest of the children of the victim.

IX. PROPERTY

A. Guerin v. Fulkerson

2010-CA-000330 10/7/11 2011 WL 4633090

Opinion by Senior Judge Lambert; Chief Judge Taylor and Judge Stumbo concurred. The Court affirmed a summary judgment in appellee’s favor on appellant’s claim of unjust enrichment brought after appellee purchased property appellant claimed was subject to a lis pendens notice. The Court held that the trial court correctly found that the lis pendens notice did not cloud any title procured by appellee and that there was no evidence presented that could support appellant’s contention that appellee had been unjustly enriched by his purchase of the property. First, appellant had nothing more than a general creditor’s claim, her claim against appellee did not have a direct attachment to the real property itself, and the recording of the lis pendens was ineffective in terms of encumbering a sale of the property to appellee. Further, appellee failed to produce evidence supporting her claim that appellee was unjustly enriched by improvements made to the property or because he may have paid less than fair market value for items left on the property. In all respects, appellee appeared to be a bona fide purchaser for value who took clear title to the property.

B. O'Rourke v. Lexington Real Estate Company, LLC

2010-CA-000108 10/7/11 2011 WL 4633086

Opinion by Senior Judge Lambert; Judges Caperton and Combs concurred. The Court reversed and remanded a judgment of the circuit court awarding attorney fees to the appellee landlord. The Court held that while the lease agreement allowed for recovery for past due rent and property damage, the limited statutory exception in KRS 383.660(3), allowing for attorney fees for “willful” noncompliance, as that term is defined in KRS 383 545(17), was not applicable. Moreover, appellee failed to state any claim for attorney fees in the body of the complaint so as to give appellant notice, as required by CR 8.01, of any acts or omissions alleged against appellant that would authorize application of KRS 383.660(3).

X. TAXATION

A. Commonwealth, Finance and Administration Cabinet v. Saint Joseph Health System, Inc.

2010-CA-001086 10/7/11 2011 WL 4633108 Rehearing Pending

Opinion by Senior Judge Lambert; Judges Acree and Wine concurred. The Court reversed an opinion order of the circuit court finding that the provider of natural gas to a hospital was not liable for the utility tax authorized by KRS 160 593 and KRS 160.613 and that the hospital was required to reimburse the provider because the hospital was not exempt from what it found was an excise tax. In a case of first impression, the Court held that, consistent with KRS 160.6131(4) and (5), which focused on the act of furnishing utility services rather than whether the provider was a regulated utility, because the provider furnished natural gas to the hospital, the provider was subject to imposition of the utility tax and the trial court erred in finding otherwise.

XI. TORTS

A. Edwards v. Gruver

2008-CA-002348 10/14/11 2011 WL 4860431

Opinion by Judge Acree; Judge Clayton concurred; Judge Caperton concurred in part and dissented in part by separate opinion. On rehearing, the Court affirmed a judgment of the circuit court entered against appellant on appellee’s claims for negligent selection, retention, and supervision of individuals to serve as recruiters for appellant’s wholly-owned unincorporated association, the Imperial Klans of America. The claims were brought after appellee was assaulted at a county fair by the recruiters. The Court first held that it was not palpable error for the trial court to admit testimony that appellant asked the witness many years earlier to kill the attorney representing appellee. In the context of the whole record, the testimony was not so consequential as to justify a finding that its admission constituted palpable error. The Court next held that it was not palpable error for the trial court to admit evidence of the assailants’ criminal histories. First, appellee was not required to give appellant notice of intent to present such evidence under KRE 404 because the rule only required such notice in a criminal case. Second, the evidence was offered under the exception to KRE 404(b) to establish that appellant knew of the violent nature of the individuals he selected as members and recruiters. Third, the probative value outweighed any prejudice. Finally, the jury apportionment of only twenty percent of the compensatory damages to appellant undermined appellant’s argument that the jury verdict was based solely on passion or prejudice against him. The Court next held that the trial court properly denied appellant’s motion for a directed verdict. In reaching that conclusion, the Court held that negligent selection was a cognizable claim in Kentucky and that an entity could be held liable when its failure to exercise ordinary care in selecting or retaining persons to conduct its activity created a foreseeable risk of harm to a third person. The Court then held that there was substantial evidence to support each element of appellee’s claim for negligent selection

B. Rehm v. Ford Motor Company

2009-CA-001868 10/7/11 2011 WL 4632924

Opinion by Judge Combs; Judge Thompson concurred by separate opinion; Judge Caperton concurred in part and dissented in part by separate opinion. On appeal and cross-appeal, the Court affirmed a judgment of the circuit court following a jury verdict in favor of Ford Motor Company on appellants’ premises liability claims brought after an elevator mechanic was diagnosed with malignant mesothelioma. The Court first held that based on the lengthy passage of time, involving some thirty years, the trial court did not abuse its discretion in admitting newspaper articles under the ancient-documents exception to the hearsay rule. The Court next held that the trial court did not err in admitting the testimony of an occupational epidemiologist who offered a theory that the worker had developed mesothelioma as a result of household exposure to his own father’s work clothes. The witness was qualified as an expert in asbestos-related diseases and was sufficiently qualified to review the literature pertaining to high risk for asbestos-related disease in elevator mechanics and while the evidence for the home-exposure theory was weak, it was the sole province of the jury to evaluate the conflict clearly demonstrated and highlighted by the effective cross-examination. The Court also held that appellants were not prejudiced by a fleeting reference by the expert witness to the worker’s exposure from other locations, as the jury had been made aware of the other locations from other testimony presented in appellants’ case-in-chief. The Court next held that the trial court improperly dismissed the loss of consortium claims by the workers’ wife and children because the injury occurred when the mesothelioma became manifest, not upon mere exposure, which was after the marriage and the children were born. However, the error was moot because it was derivative upon a finding of damages rejected by the jury. On the cross-appeal, the Court held that the trial court did not err in denying Ford’s motion for summary judgment based on the issue of up-the-ladder immunity as the issue had already been determined by the Supreme Court and thus, was the binding law of the case. The Court also held that the trial court did not err in admitting internal memoranda listing other employees who had died as a result of mesothelioma. The documents were relevant to prove that Ford had notice of the risks of working with asbestos, not as proof that the worker’s mesothelioma was caused by asbestos at the location where he worked. Further, Ford did not offer proof that the evidence was unduly prejudicial.

C. Schulze v. Hinton

2010-CA-000121 10/28/11 2011 WL 5105382

Opinion by Judge Lambert; Judges Caperton and Keller concurred. In an appeal and cross-appeal, the Court affirmed several orders of the circuit court in a personal injury suit wherein appellant sought damages for injuries she sustained in a motor vehicle accident. The Court first held that the trial court properly denied appellant’s motion for a new trial. In so concluding, the Court first held that the jury’s decision not to award damages for pain and suffering was supported by the record. The jury had a sufficient basis upon which to find that appellant’s complaints were not causally related to the accident but were related to a pre-existing back problem. The Court next held that while appellant’s six-minute delay in objecting to a comment made in closing argument did not make the objection untimely or the issue unpreserved, the admonition given by the trial court, requested by appellant, cured any alleged error. On the cross-appeal, the Court first held that when the trial court entered conflicting orders awarding costs, the more specific order awarding costs to appellant was the one that should be followed. The Court then held that while appellant did not receive the amount of damages she requested, she was nonetheless awarded a portion of what she claimed and therefore, she was properly considered the “prevailing party” for purposes of awarding costs. Therefore, the trial court did not commit any error or abuse its discretion in awarding the costs she requested.

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

KENTUCKY COURT OF APPEALS PUBLISHED OPINIONS

SEPTEMBER 2011

I. CIVIL PROCEDURE

A. Bondurant v. St. Thomas Hospital

2010-CA-000166 9/9/11 2011 WL 3962597

Opinion by Judge Acree; Judges Caperton and Clayton concurred. The Court affirmed an order of the circuit court dismissing appellant’s claims against the appellee Tennessee medical providers after she was prescribed an incorrect dosage of medication administered by a nursing home in Kentucky. The Court held that the circuit court did not err in dismissing the claims. In reaching that conclusion, the Court held that controlling law was clear that appellees’ contacts, ordering care upon discharge, to be implemented upon admission to a Kentucky nursing home, were insufficient to invoke personal jurisdiction over the nonresident defendants in Kentucky. Further, the fact that appellees were aware that the services they performed in Tennessee would impact the patient’s follow-up care was insufficient to exercise personal jurisdiction. Finally, the fact that it was inconvenient for appellant to file suit in Tennessee was not dispositive of the personal jurisdiction issue.

B. Butler v. Jordan

2010-CA-000035 9/30/11 2011 WL 4502066

Opinion by Senior Judge Lambert; Chief Judge Taylor and Judge Keller concurred. The Court affirmed an order of the circuit court dismissing appellant’s action to set aside a deed on grounds of forgery. The Court held that the circuit court did not err in concluding that appellant’s claim was precluded by prior litigation between the parties and was thus barred by res judicata. Appellant’s counterclaim to set aside the subject deed in the first action, which was dismissed based upon the applicable statute of limitations, satisfied the “identity of parties” and “resolution on the merits” elements for claim preclusion. Further, the issue of the authenticity of the signature on the subject deed was clearly raised in the first action and resolved by dismissal. Moreover, res judicata applied since the issue of forgery was undoubtedly a point which properly belonged to the subject of the litigation between the parties in the first action since it was clearly within the scope of that case and its issues.

C. Summe v. Gronotte

2010-CA-000055 9/09/2011 2011 WL 3962517

Opinion by Judge Acree; Judges Dixon and Nickell concurred. The Court affirmed a trial order and judgment of the circuit court entered upon a jury finding in favor the appellee executor of an estate on her nuisance and trespass claims against appellant for constructing a berm encroaching on property included in an estate. The Court first held that the circuit court did not abuse its discretion in allowing appellee to testify regarding the value of the property.

Appellee was not testifying as an expert witness and the requirements set forth in Commonwealth, Department of Highways v. Slusher, 371 S.W.2d 851 (Ky. 1963) were met. The Court rejected appellant’s argument that KRE 701 did not make Slusher obsolete and held that the lay opinion testimony satisfied both Slusher and the requirements of KRE 701. Reviewing the issues for manifest injustice, the Court next held that the jury’s damage award was not contrary to the manifest weight of the evidence nor did appellee fail to present evidence of damages caused by the nuisance or trespass.

II. CONTRACTS

A. Bradley v. Sammet

2010-CA-000770 9/23/11 2011 WL 4421366

Opinion by Senior Judge Shake; Judges Stumbo and Thompson concurred. The Court reversed orders of the circuit court denying appellant’s motion for a temporary injunction against appellee, denying a motion for reconsideration and granting appellee summary judgment in appellant’s action against appellee for the alleged violation of a noncompetition agreement. The Court held that the circuit court erred in interpreting the noncompetition agreement without considering the intent of the parties as to the scope and enforcement of the agreement. Although the circuit court implied that the noncompetition agreement was unambiguous, it relied on extrinsic evidence. The disagreements as to the extrinsic evidence created factual issues and the construction of the contract was subject to resolution by the fact-finder.

B. Estes v. McKinney

2010-CA-000576 9/30/11 2011 WL 4502093

Opinion by Senior Judge Shake; Judges Moore and VanMeter concurred. The Court affirmed a summary judgment granted in favor of appellees on appellants’ claims alleging appellees breached a merger agreement, breached a settlement agreement and breached its obligations under a promissory note. The Court held that the circuit court correctly applied the doctrine of accord and satisfaction. While, pursuant to KRS 355.3-311(3)(b), appellants could have rejected the instrument tendered in full satisfaction of the claim, their failure to repay the amount within 90 days, resulted in accord and satisfaction. The Court further held that because the claim had been discharged by accord and satisfaction prior to the summary judgment motion, any disputed issues that may have been deemed admitted by unanswered requests for admissions dissolved upon the occurrence of the accord and satisfaction.

III. CRIMINAL LAW

A. Bishop v. Commonwealth

2010-CA-000706 9/16/11 2011 WL 4107277

Opinion by Judge Lambert; Judges Dixon and VanMeter concurred. The Court affirmed a circuit court order denying appellant’s motion for relief pursuant to RCr 11.42. The Court first held that the circuit court did not err in finding that trial counsel provided appellant with effective assistance. Because appellant entered a guilty plea, he was precluded from raising any of the issues he raised on appeal. He was bound by the terms of his plea agreement with the Commonwealth, which included waiver of his right to appeal. Appellant was limited to contesting the validity of his guilty plea, which he did not argue in his brief.

B. Boyd v. Commonwealth

2008-CA-001714 9/23/11 2011 WL 4420794

Opinion by Judge VanMeter; Judge Nickell concurred; Senior Judge Lambert concurred in result only. The Court affirmed a judgment of the circuit court convicting appellant of criminal possession of a forged instrument in the first degree, possession of drug paraphernalia and of being a persistent felony offender in the second degree. The Court first held that, pursuant to RCr 10.26, there was no palpable error in the trial court’s denial of appellant’s motion to suppress counterfeit bills found in her purse when officers searched her vehicle after one of her passengers was arrested on an outstanding warrant. Although the search may have been unconstitutional under Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), application of the exclusionary rule would not deter deliberate and culpable police and practices and therefore, the search was authorized under New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), which was binding precedent at the time of the search. The Court next held that the trial court did not abuse its discretion by allowing an officer to testify about the way people sometimes purchase drugs on the street when the testimony was relevant to explain the circumstances that aroused the officer’s suspicion that a drug transaction was taking place. The Court further held that even if the testimony should have been excluded, the error was harmless. The Court next held that there was no palpable error in admitting a detective’s testimony that the counterfeit bills in appellant’s possession could not have been glued together with a glue stick, as alleged by appellant, when the detective was qualified under KRE 702. Any lack of specialized training on the part of the detective concerning the glue went to the weight of his testimony, not his qualification as an expert or the competency of his testimony. The Court next held that the trial court did not err in denying appellant’s motion for a directed verdict on two counts of criminal possession of a forged instrument when the circumstantial evidence was sufficient to support a finding that appellant intended to use the bills to make a drug purchase. The Court finally held that any error resulting from the trial court’s omission of an intent element from the jury instructions on the charge of possession of drug paraphernalia was harmless when appellant’s defense to the charge was to deny knowledge and ownership of the crack pipe found in her car and when she did not present a defense of lack of intent.

C. Commonwealth v. Gerald

2010-CA-000015 7/1/11 2011 WL 2582526 RH Denied and ordered pub.

Opinion by Judge Stumbo; Judge Thompson concurred; Judge Caperton concurred by separate opinion. The Court reversed and remanded an order of the circuit court granting a motion to suppress evidence found in the search of appellant’s vehicle after he was arrested for possession of marijuana. The Court held that the circuit court erred in suppressing the evidence when it relied on Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), without considering the alternate evidentiary basis for the search of the passenger compartment and trunk of appellant’s car. A police officer observed appellant rolling a marijuana cigarette while sitting in his vehicle, which led to a reasonable belief that evidence of criminal behavior might be found in the passenger compartment. When the search of the passenger compartment yielded both marijuana and cocaine, probable cause existed for the issuance of a search warrant for the vehicle and, therefore, pursuant to United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72. L.Ed. 572 (1982), a warrantless search of the vehicle’s trunk was constitutional.

D. Commonwealth v. Parker

2010-CA-001215 9/30/11

Opinion by Senior Judge Shake; Judge Lambert concurred; Judge Combs concurred by separate opinion in which Judge Lambert concurred. The Court reversed an order of the circuit court granting appellee’s motion to suppress evidence discovered after he was arrested for driving on a suspended license. The Court first held that the appeal was timely filed. The running of the time for the Commonwealth to take its appeal from the order denying the motion to suppress was tolled by a timely-filed CR 59.05 motion. The Court then held that although the search was unconstitutional under Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), the officer’s good faith reliance on controlling law at the time made the search appropriate as articulated in Davis v. United States, 564 U.S. ___, 131 S.Ct. 2419, 180 L.Ed.2d (2011).

E. Martin v. Commonwealth

2010-CA-000322 9/16/11 2011 WL 4103031

Opinion by Judge Clayton; Judge Caperton concurred; Chief Judge Taylor dissented in part by separate opinion. The Court affirmed in part, reversed in part and remanded for a new trial. The Court first held that the trial court erred in failing to hold a hearing under Faretta v. California, 422 U.S. 806, 955 S.Ct. 2525, 45 L.Ed 2d 562 (1975), to insure that appellant voluntarily and intelligently waived his right to counsel, after appellant sent a letter to the trial court saying that he had fired his trial counsel, requested new counsel and proceeded to file numerous pro se motions, sometimes referring to himself as co-counsel. The Court then held that the trial court did not err in denying appellant’s motion to dismiss on double jeopardy grounds after appellant’s first trial ended with a mistrial, which was requested by defense counsel. It was not an abuse of discretion for the trial court to find that a mistrial was necessary and moreover, defense counsel requested the mistrial. The Court then held that it was not manifest injustice for the trial court to impose court costs when, although appellant had been found to be indigent, he was released on probation and would be able to work. The Court finally held that the trial court did not abuse its discretion in revoking appellant’s probation when appellant clearly violated a condition of probation by not completing drug court.

F. Simms v. Commonwealth

2010-CA-000344 9/16/11 2011 WL 4103036

Opinion by Judge Combs; Judges Caperton and Thompson concurred. The Court affirmed an order of the circuit court denying appellant’s motion to withdraw his waiver of jury sentencing, which included a waiver of his right to appeal. The Court held that while the waiver form signed by appellant could have, and perhaps should have, stated that the right to appeal was guaranteed by the Kentucky Constitution, and while it would have been better practice for the trial court to conduct a colloquy in order to insure the voluntariness of appellant’s plea, appellant was adequately informed when he agreed to the sentencing plea and therefore, the court did not err in denying the motion to withdraw the waiver. The Court also held that any error committed by the trial court in stating that appellant would not be able to appeal anything at all was harmless as appellant still possessed the right to appeal the limited issues that could not be waived.

G. Stinson v. Commonwealth

2010-CA-001647 9/9/11 2011 WL 3962647

Opinion by Judge Wine; Judge Acree and Senior Judge Lambert concurred. The Court affirmed a judgment of conviction entered pursuant to appellant’s Alford plea to first-degree sexual abuse of his 17-year-old niece, wherein he reserved the right to appeal the constitutionality of KRS 510.110(1)(d) as vague and overbroad in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The Court first held that even if the statutory definitions of “position of authority” and “position of special trust” were potentially vague when applied to other situations, they clearly applied to appellant and therefore, the statute could not be considered unconstitutionally vague as applied to him. The Court next held that the statute was not overbroad for imposing criminal liability without requiring a jury to find appellant used his position of authority or special trust to impose sexual contact on the minor. Because the statute addressed the narrow issue of whether sexual contact occurred while the person occupied the position of authority or special trust, and not whether the person used the position of authority or special trust to obtain sexual contact, it did not needlessly prohibit or restrict constitutionally protected activities or invite enforcement in an arbitrary manner. The Court finally held that the trial court did not err by rejecting appellant’s proposed jury instruction requiring the jury to find lack of consent as an element of the offense. The statute prohibited any person occupying a position of authority or special trust from engaging in sexual contact with minors in his or her care. Thus, any sexual contact between such persons was presumed to be non-consensual. Further, that presumption was not rebuttable.

H. Tigue v. Commonwealth

2009-CA-000080 9/9/11 2011 WL 3962504 RH Pending

Opinion by Judge Wine; Judges Acree and Combs concurred. The Court reversed and remanded for a new trial an order of the circuit court denying appellant’s RCr 11.42 motion finding that trial counsel provided effective representation and that appellant entered a knowing, voluntary and intelligent guilty plea. The Court held that appellant was denied counsel at a critical stage of the proceeding when his trial attorneys either refused or failed to make a motion to withdraw his plea after he requested they do so. In light of the importance of counsel’s assistance in properly framing the issues and presenting those issues to the court, as well as developing any factual support and being knowledgeable about the requirement of a written motion and the elements considered by a trial court on a motion to withdraw a guilty plea, the Court held that the motion to withdraw appellant’s guilty plea was a critical stage of the proceeding.

I. Vega v. Commonwealth

2010-CA-001909 9/30/11 2011 WL 4503135

Opinion by Judge Lambert; Judges Caperton and Keller concurred. On discretionary review, the Court affirmed an order of the circuit court upholding a district court order denying a motion to suppress evidence obtained as a result of appellant’s arrest for carrying a concealed deadly weapon. The Court held that the circuit court did not err in upholding the district court’s denial of the motion to suppress the evidence when the firearm was concealed, appellant’s arrest was proper and the fruits of the search incident to appellant’s arrest were not tainted. A toolbox was sitting on top of the firearm and the only reason the officer observed it was because the toolbox was not balanced and was angled up on one side. Appellant possessed the firearm that would have been visible only from a specific, solitary angle, and even then, only to individuals standing immediately adjacent to the passenger side window and peering carefully into the vehicle to identify the weapon.

J. Williams v. Commonwealth

2010-CA-001603 9/30/11 2011 WL 4505834

Opinion by Judge Wine; Chief Judge Taylor and Judge Caperton concurred. The Court affirmed an order of the circuit court denying appellant’s motion filed pursuant to CR 60.02 to correct his sentence. The Court held that the trial court did not err in finding that appellant committed the offense of third-degree rape while “awaiting trial” on drug charges, for which he was give five years of diversion under a pretrial agreement, and ordering appellant’s sentences to run concurrently. A subsequent offense committed during a period of pre-trial diversion may be considered committed while “awaiting trial” for the purposes of consecutive sentencing under KRS 532.060(3).

IV. EDUCATION

A. Fell v. Jefferson County Board of Education

2010-CA-001830 9/30/11 2011 WL 4502673

Opinion by Judge Thompson; Judge Caperton concurred by separate opinion; Judge Combs dissented by separate opinion. The Court reversed and remanded an order of the circuit court dismissing appellants’ challenge to a student assignment plan, which was brought after appellants’ children were assigned to schools other than that nearest their homes. The Court held that the trial court erred in construing the language of KRS 159.070 and in concluding that the term “enroll” meant to “register” and not to attend the school nearest a child’s home. The Court ultimately held that involuntary assignment of a student to a school other than that nearest the student’s home violated KRS 159.070.

V. EMPLOYMENT

A. Drummond v. Todd County Board of Education

2009-CA-000356 9/9/2011 2011 WL 3962509

Opinion by Judge Acree; Judges Caperton and Clayton concurred. The Court affirmed the administrative termination of appellant’s employment after finding that he engaged in sexual contact with two students, constituting conduct unbecoming a teacher. The Court first held that the conclusions of the tribunal were supported by competent substantial evidence, which included the testimony of the two students who alleged appellant had inappropriate contact with them, the testimony of school administrators, and a third student’s testimony supporting the conclusion that one of the other students had not recently fabricated her story. The Court next held that evidence of appellant’s criminal acquittal was both irrelevant and potentially confusing to the tribunal and therefore, the hearing officer’s exclusion of the evidence was proper. First, there were different standards of proof at the criminal trial than at the administrative hearing and second, the factual inquiries before the jury in the criminal trial differed from those presented to the tribunal. The Court next held that the hearing officer did not erroneously deny appellant’s motion to enter his personnel file into the record, when the excluded documents were not relevant to the issue of sexual misconduct. The Court next held that the hearing officer did not improperly prevent appellant from asking one of the students whether DNA evidence was found on any of her clothing when it was not likely that the student was qualified to testify about scientific evidence. The Court next held that the hearing officer did not improperly limit the time to present evidence when appellant was permitted to conduct extensive cross-examination of the school board’s witnesses and to call six witnesses of his own, allowing him to present his case and point out the flaws in the board’s evidence. The Court next held that appellant failed to cite any authority in support of his argument that the hearing officer improperly denied his motion for a mistrial and therefore, the argument was waived. Even so, introduction of incompetent evidence did not warrant reversal of factual determinations based on competent substantial evidence. The Court next held that the hearing officer did not err in refusing to permit a witness for appellant to testify by telephone. Appellee did not agree to the telephonic testimony and therefore, allowing it would have violated KRS 13B.080(7). The Court finally held that, while appellant may have preferred to take certain testimony on avowal, the hearing officer did permit appellant to offer proof of the evidence, which was all he was entitled to under KRE 103(a)(2).

B. Travis v. Administrative Office of the Courts

2010-CA-001165 9/23/11 2011 WL 4422180

Opinion by Senior Judge Shake; Judges Keller and Lambert concurred. The Court affirmed an order of the circuit court dismissing, for lack of subject matter jurisdiction, appellant’s wrongful termination action against the Administrative Office of the Courts. The Court held that the circuit court did not have the jurisdiction to review the termination of the former Family Court Administrator, a non-tenured employee. Pursuant to Nance v. Kentucky Administrative Office of the Courts, 336 S.W.3d 70 (Ky. 2011), the challenge to the Chief Justice’s authority to terminate appellant’s employment was required to be presented to the Supreme Court.

VI. FAMILY LAW

A. N.B. v. C.E.H., II

2010-CA-002257 9/9/11 2011 WL 4103602

Opinion by Judge Acree; Judge Wine concurred; Senior Judge Lambert concurred by separate opinion. The Court affirmed in part and vacated and remanded in part an order of the family court refusing to require the parties’ minor child to undergo additional reconciliation counseling with appellant and permitting appellee to unilaterally decide to relocate the minor child to Texas, contrary to an order of joint custody and without appellant’s agreement. The Court first held that the order from which the appeal was taken was final and appealable because it related specifically to the child’s care and custody. The Court next held that the family court did not abuse its discretion in refusing to require the child to undergo additional counseling because the evidence supported the conclusion that reconciliation counseling would be unsuccessful. The Court then held that that the family court erred in allowing appellee to unilaterally relocate the child to Texas without resolving the issue according to the child’s best interest. The Court finally held that appellee carried the burden of proving that the relocation was in the child’s best interest.

B. Roberts v. Bedard

2011-CA-000212 9/16/11 2011 WL 4103910

Opinion by Judge Clayton; Judges Stumbo and Thompson concurred. The Court affirmed a family court order dismissing appellant’s motion to modify a child support order originally entered in Florida. The Court held that the family court correctly found that it did not have subject-matter jurisdiction. Because appellant, the moving party, resided in Kentucky, she did not meet the requirements of the Uniform Interstate Family Support Act, KRS 407.5611 (UIFSA), and thus, could not move for modification of a foreign order in Kentucky. Therefore, it was irrelevant whether the trial court had personal jurisdiction over appellee who was personally served in Kentucky. The Court also held that there was no contradiction between the Full Faith and Credit for Child Support Orders Act, 28 U.S.C. § 1738B (FFCCSOA), and the UIFSA and therefore, it was not necessary to determine whether the FFCCSOA preempted the subject-matter jurisdiction requirements of the UIFSA. The Court finally held that the family court did not abuse its discretion by allowing appellee to file a responsive motion to dismiss when it met the 24-hour deadline of the pertinent local family court rule.

C. S.B. v. M.C.

2009-CA-000966 9/23/11 2011 WL 4407446

Opinion by Judge Lambert; Judges Clayton and Combs concurred. The Court reversed and remanded a family court order dismissing appellant’s petitions to determine paternity and custody of a child born to appellee while she was married to someone other than appellant. The Court held that the family court erred in dismissing the petition. The fact that the husband and wife both judicially admitted that appellant was the child’s father and the paternity testing confirmed that relationship, the husband and wife were estopped from arguing that the trial court did not have jurisdiction to establish paternity and custody because appellant did not allege in his initial petition that the husband and wife were separated when the child was conceived. The presumption of KRS 406.011 was rebutted. Therefore, the family court had jurisdiction to establish paternity and determine custody.

D. Walker v. Blair

2010-CA-002228 9/30/11 2011 WL 4502814

Opinion by Judge Caperton; Judges Combs and Thompson concurred. The Court affirmed an order of the family court granting grandparent visitation to appellee. The Court held that the trial court did not err when it denied appellant’s motion to dismiss wherein she argued that appellee lacked standing to file an action for grandparent’s visitations rights because she failed to assume the financial support of the child. At no time did appellee indicate that she was seeking noncustodial parental visitation as governed by KRS 405.021(3) but rather, sought grandparent visitation pursuant to KRS 405.021(1). The death of the father did not trigger the imposition of visitation and child support pursuant to KRS 405.021(3) but rather, the breadth of visitation sought by the grandparent. The Court next held that the trial court did not err in concluding that it was in the best interest of the child for the grandmother to have visitation. Speculation that the child would have contact with the grandmother’s ex-husband was insufficient to prove trial court error.

VII. OCCUPATIONAL SAFETY

A. Department of Labor v. Hayes Drilling, Inc.

2010-CA-000021 9/2/11 2011 WL 3862203

Opinion by Judge Thompson; Judges Acree and Lambert concurred. The Court reversed an order of the circuit court reversing a decision and order of the Kentucky Occupational Review Commission affirming the issuance of a citation and imposition of penalties under the Kentucky Occupational Safety and Health Act (KOSHA), KRS 338.011 through 338.991, to a subcontractor after a worker was injured falling into a hole dug by appellant at a construction site. The Court held that the circuit court erred in reversing the decision. In reaching that conclusion, the Court first held that the citations were not invalid because the appellant was not afforded the opportunity to attend the opening conference or walk around inspection provided for in KRS 338.111 when appellant had permanently departed the work site when the compliance officer conducted her investigation and the primary contractor who was present and in control of the worksite was afforded the opportunity to attend. The Court next held that the citation was not invalid because the hazard was abated before the citation was issued when the citation acknowledged that the violation had been eliminated and appellant was informed that abatement was not the issue. The Court next held that appellant was responsible for the KOSHA violations under the multi-employer worksite doctrine when there was substantial evidence that it was the creating employer of the hazard. The Court then held that regardless of the contractual arrangement between appellant and the general contractor, appellant dug the hole at issue and provided a cover in violation of KOSHA standards. The Court finally held that the intentional removal of a plywood cover on the hole by the injured worker did not preclude the citation. Once the unsecured and unmarked plywood was placed as a cover over the hole greater than six feet deep, appellant violated KOSHA.

VIII. PROPERTY

A. Campbell v. Drescher

2010-CA-000680 9/16/11 2011 WL 4107015

Opinion by Judge Keller; Judges Thompson and Wine concurred. The Court reversed and remanded a summary judgment finding that the sellers of real property were entitled to proceeds from an avigation easement and a summary judgment in favor of the sellers’ attorney on a legal malpractice claim for his failure to adequately secure their rights to the proceeds from the easement. The Court first held that the trial court erred in finding that the sellers were entitled to the proceeds from the easement. In reaching that conclusion the Court first held that the deed was not ambiguous and nothing in the deed or exhibits could be construed to act as a waiver by the buyer to proceeds from easements not yet in place. The Court hen held that the equitable title theory had no application because the buyer paid the entire amount due and the sellers contemporaneously transferred the deed. The Court then rejected a plat theory, whereby the sellers argued that they dedicated the easements to public use when they granted easements to the United States. The easements were not open to public use and the transfer was not complete until after ownership of the property passed to the buyer. The Court then held that the United States did not obtain the easements until the deed of easement was executed and delivered, which was after the buyer owned the property. The Court also held that the doctrine of unjust enrichment was inapplicable because there was an explicit contract performed according to its terms. The Court then held that the sellers could not rescind the contract based on a unilateral mistake regarding the disposition of the easement proceeds when, by the exercise of ordinary diligence, they could have specified that they were entitled to the proceeds from the easements. The Court finally held that the trial court erred in finding that the sellers’ attorney represented them in a manner consistent with the standard of care applicable to attorneys. Whether the attorney committed legal malpractice by failing to secure the clients’ rights to the proceeds from the easements was a question for the trier of fact.

IX. PUBLIC HEALTH

A. Fleming County Hospital District v. Fleming Regional Medical Imaging, PLLC

2009-CA-001275 9/30/11 2011 WL 4501980

Opinion by Judge Keller; Judges Caperton and Lambert concurred. The Court affirmed an order of the circuit court finding that the appellee medical MRI entity was exempt from the certificate of need requirements in KRS 216B. The Court first held that the circuit court correctly found that the appellant hospital and association bore the burden of proof. Once a requester received a favorable advisory opinion from the Cabinet for Health and Family Services, the affected party seeking to challenge the opinion bore the burden of proof. The Court then held that the MRI entity met the private physician office exemption under Gilbert v. Commonwealth, 291 S.W.3d 712 (Ky. App. 2008). Although there was discussion of expanding the ownership, no such expansion had taken place.

X. TORTS

A. Buda v. Schuler

2010-CA-001087 9/23/11 2011 WL 4408448

Opinion by Senior Judge Shake; Judges Keller and Lambert concurred. The Court affirmed a summary judgment in favor of appellee on his claim for damages for injuries he sustained during an altercation with appellant. The Court first held that the trial court did not err by finding an absence of a genuine factual dispute as to liability based on the uncontroverted evidence that appellant caused serious physical injury to appellee and in light of appellant’s statements on the record taking responsibility for severe injuries inflicted on appellee. The Court next held that the trial court did not err in awarding compensation to appellee for his lost income and lost profits even though he received his base salary during the time he was unable to work. The salary received was a fraction of what his income would have been to his for-profit corporation and concomitantly to him, when his labor was the sole source of income for his business. Further, appellee’s testimony was substantial evidence to prove lost profits and appellee’s claim advised appellant that he intended to seek damages in the amount of $95,000 in lost profits to his business. The Court then held that the record contained significant evidence indicating that appellant viciously attacked appellee and severely beat him with an object. This conduct constituted an egregious display of total disregard for the safety of others to support the trial court’s award of punitive damages. The Court finally held that the trial court did not err in awarding appellee the full amount of medical bills even though his healthcare providers accepted less payment than the full amount billed.

B. Smith v. Bargo

2010-CA-000241 9/30/11 2011 WL 4502074

Opinion by Senior Judge Lambert; Judges Caperton and Thompson concurred. The Court reversed and remanded a judgment entered upon a jury verdict assigning to appellant a portion of the liability arising from a motor vehicle accident after the trial court granted appellant a directed verdict. The Court held that the trial court erred in presenting the question of appellant’s liability to the jury after it granted appellant’s unopposed motion for a directed verdict as it pertained to the claims against him. While it was appropriate for the jury to determine appellant’s portion of fault incident to its determination of the comparative fault of the other parties, it was error for the trial court to adjudge liability for that fault after appellant had already been dismissed from the case.

C. South Woodford Water District v. Byrd

2009-CA-000854 9/23/11 2011 WL 4420835

Opinion by Judge Acree; Chief Judge Taylor concurred; Judge Combs dissented by separate opinion. The Court reversed an order of the circuit court denying appellant’s motion to dismiss appellee’s claim that the appellant water district failed to terminate water service to his property upon his request, resulting in damage to his property. The Court first held that it had jurisdiction to review the interlocutory order under the collateral order doctrine. The Court next held that it did not have jurisdiction under the collateral order doctrine or any other jurisprudence to review appellant’s defense under the Claims Against Local Governments Act, KRS 65.200-65.2006. As a statutory defense to liability only, as with any other liability defense, the denial could be vindicated following a final judgment. The Court then held that the water district was entitled to governmental immunity and therefore, instructed the circuit court to dismiss the claim. Because appellant did not name as a defendant any government official, the discretionary/ministerial function analysis was irrelevant and the circuit court erred in considering whether the alleged conduct constituted a ministerial or a discretionary act. Appellant was a state agency engaged in the governmental function of providing water and therefore, was entitled to governmental immunity from a claim of damages resulting from an employee’s failure to terminate water service.

XI. WILLS AND ESTATES

A. Kincaid v. Kincaid

2009-CA-002202 9/2/11 2011 WL 3862153 DR Pending

Opinion by Judge Thompson; Judges Acree and Lambert concurred. The Court affirmed in part, reversed in part and remanded a summary judgment denying advisory committee members’ claims for compensation from funds remaining in a trust and a subsequent order denying a bank’s request to supplement its executor and trustee fee to compensate the advisory committee members for past service. The Court also ordered all records in the appeal unsealed. In the opinion and order unsealing the records, the Court held that the procedure for sealing records, articulated in Lexington Herald-Leader Co., Inc. v. Meigs, 660 S.W.2d 658 (Ky. 1983), must be followed and that the parties’ agreement to seal a court record without a hearing and appropriate findings could not be the basis for denying public access. In the opinion affirming in part, reversing in part and remanding, the Court held that the circuit court erred as a matter of law in denying the bank’s request for a supplemental fee for past services rendered by the advisory committee members. The bank, as executor of the estate, was entitled to pay reasonable compensation to the advisory committee for its advice and administration of the estate pursuant to KRS 395.150 and KRS 39.195(18). Consistent with the statutory provisions, the will expressly permitted the executor to employ advisors. Because the bank was entitled to supplement its executor fee to compensate the advisory committee members, the appeal from the summary judgment denying the advisory committee members’ request for compensation was moot.

XII. WORKERS' COMPENSATION

A. Greg's Construction v. Keeton

2011-CA-000761 9/16/11 2011 WL 4347203

Opinion by Judge Moore; Judges Dixon and Thompson concurred. The Court affirmed an opinion of the Workers’ Compensation Board affirming an opinion, order and award of an ALJ holding the appellant construction company exclusively liable, per KRS 342.7305(4), for paying benefits and medical expenses for a worker’s claim of permanent partial hearing loss. The Court held that the Board did not overlook or misconstrue controlling law or commit an error in assessing the evidence so flagrant as to cause gross injustice and that the decision was supported by substantial evidence. The fact that the worker’s hearing impairment was causally related to exposure to hazardous levels of workplace-related noise was uncontested as was the fact that appellant was the worker’s last employer. The worker was only required to present substantial evidence demonstrating that he was exposed to hazardous levels of noise during his employment with appellant, which he did. Therefore, pursuant to the unambiguous language of KRS 342.7305(4), appellant was exclusively liable for the worker’s benefits and the ALJ correctly declined to apportion the benefits between appellant and the worker’s former employers.

B. Uninsured Employers' Fund v. Stanford

2010-CA-002288 9/30/11 WL Citation Not Yet Available

Opinion by Senior Judge Shake; Judges Dixon and Nickell concurred. The Court affirmed an opinion of the Workers’ Compensation Board, which affirmed in part, reversed in part and remanded an opinion, award and order of the ALJ adjudicating a benefits claim by a worker after he fell from a zip line and suffered permanent injury. The worker was part of a federally-funded program, which placed him in a summer work program. The Court first held that the issue of reimbursement to the prevailing party was preserved for determination by the ALJ and therefore, the Board could properly order reimbursement. The issue of reimbursement was a sub-issue of any liability presented to either the ALJ or the Board and once the Board held that liability had been reallocated to a party other than that designated by the ALJ, reimbursement was inevitable and proper. The Court also held that the Board properly dismissed issues presented by the employer as untimely taken after the worker filed a second motion for reconsideration seeking the same relief sought in an original motion for reconsideration. The Court finally held that the worker was not entitled to sanctions against the employer for filing a frivolous appeal when the claims were not so lacking in merit that they were brought in bad faith and the issue of the timeliness of the appeal to the Board was an issue of first impression and one which had a direct effect on the employer.

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

KENTUCKY COURT OF APPEALS PUBLISHED OPINIONS

AUGUST 2011

I. CRIMINAL LAW

A. Bonner v. Commonwealth

2009-CA-000502 8/19/11 2011 WL 3628857

Opinion by Judge Thompson; Judge Stumbo concurred; Senior Judge Shake dissented by separate opinion. The Court reversed and remanded an order of the circuit court denying a motion for costs related to a DNA analysis and expert services provided for appellant’s criminal defense, despite an earlier finding that appellant was indigent and entitled to have the expenses paid pursuant to KRS 31.110(1)(b). The Court held that the trial court abused its discretion when it denied appellant’s motion filed pursuant to CR 60.02(f). The trial court was without authority to rescind its prior orders finding that appellant was indigent and entitled to the expert expenses. If after a hearing pursuant to KRS 31.120, the trial court determined that the defendant was no longer indigent, the order could only operate prospectively.

B. Commonwealth v. Grider

2009-CA-002080 8/12/11 2011 WL 3516296

Opinion by Chief Judge Taylor; Judge Clayton and Senior Judge Lambert concurred. The Court reversed and remanded with instructions an order of the circuit court granting appellee’s motion to dismiss an indictment charging him with fifteen counts of trafficking in a controlled substance and bribing a witness. The Court held that the trial court abused its discretion by dismissing the indictment without first utilizing the least severe sanction to punish the Commonwealth and to insure compliance with the court’s discovery order.

C. Cromer v. Commonwealth

2010-CA-000362 8/19/11 2011 WL 3628870

Opinion by Judge Dixon; Judges Keller and VanMeter concurred. The Court affirmed orders of the circuit court denying appellant’s motions for a choice of evils instruction, to suppress evidence found in a warrantless search of his vehicle and to disqualify the county attorney’s office. The Court first held that the trial court properly found that the contingencies articulated in Beasley v. Commonwealth, 618 S.W.2d 179 (Ky. App. 1981), were not met, when it was unreasonable to believe that operating a motor vehicle under the influence was justified and that there was no evidence in the record that the risk of injury to other unidentified motorists was so compelling or imminent as to leave appellant with no alternative to avoid the injury other than driving under the influence. Therefore, the trial court correctly concluded that appellant was not entitled to a choice of evils instruction under KRS 503.030. The Court next held that the search of his vehicle, wherein an unlicensed weapon was found, did not violate Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009).

Although appellant was not within reaching distance of the passenger compartment, he was arrested for DUI, for which evidence might reasonably be found in his vehicle. The probable cause to search appellant’s vehicle for evidence of DUI did not end upon the discovery of a ballistics vest, and it was proper for the police to pick up the vest to see if anything was located beneath it. The Court finally held that the trial court did not err in refusing to disqualify the county attorney’s office. Appellant’s reliance on the modified rule allowing for disqualification without a showing of actual prejudice, articulated in Whitaker v. Commonwealth, 895 S.W.2d 953 (Ky. 1995), and Commonwealth v. Maricle, 10 S.W.3d 117 (Ky. 1999), was misplaced. Appellant could not show that any member of the prosecutorial staff conducted “substantial and personal preparation” involving an “exchange of confidential information” in connection with the case.

D. Foley v. Haney

2010-CA-001240 8/5/11 2011 WL 3362584

Opinion by Judge Keller; Judge Lambert and Senior Judge Shake concurred. The Court vacated and remanded an order of the circuit court denying appellant’s petition for declaratory judgment wherein he argued he was deprived of due process in a prison disciplinary proceeding. The Court held that the circuit court erred in denying the petition. The proceedings were deficient when the hearing officer did not have or did not review the cafeteria and medical records appellant claimed would establish he was somewhere other than where the assault he was accused of committing took place. Further, the hearing officer was required to state on the record that evidence provided by a confidential informant had been reviewed and had been found to be reliable and to set forth reasoning supporting the finding of reliability.

E. Juarez v. Commonwealth

2011-CA-000017 8/12/11 2011 WL 3524418

Opinion by Judge VanMeter; Chief Judge Taylor and Judge Acree concurred. The Court affirmed an order of the circuit court denying appellant’s motion for relief pursuant to CR 60.02. The Court held that the trial court did not abuse its discretion in denying the motion. Appellant’s failure to raise the jury instruction error in either his direct appeal or his motion for RCr 11.42 relief, precluded relief under CR 60.02.

F. Turner v. Commonwealth

2009-CA-002141 8/12/11 2011 WL 3516298

Opinion by Senior Judge Lambert; Judge Caperton concurred; Judge Dixon dissented. The Court reversed and remanded a judgment of the circuit court entered pursuant to a jury verdict finding appellant guilty of trafficking in methamphetamine and finding that appellant was a persistent felony offender in the first degree. The Court held that the trial court erred in denying appellant’s motion to suppress evidence found in his vehicle. The Court held that because appellant was securely in police custody in the back seat of a cruiser with  noopportunity to disturb the interior of the truck, pursuant to Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed. 2d 485 (2009), the warrantless search of his vehicle violated his Fourth Amendment rights.

II. EMPLOYMENT

A. Mendez v. University of Kentucky Board of Trustees

2010-CA-001244 8/12/11 2011 WL 3516861

Opinion by Judge Clayton; Chief Judge Taylor and Judge Caperton concurred. The Court affirmed a judgment of trial court entered pursuant to a jury verdict in favor of appellees on appellant’s religious discrimination claim and summary judgment entered in favor of appellees on appellant’s wrongful discharge claims. The Court first held that the trial court did not err in instructing the jury on the religious discrimination claim. The jury instructions provided sufficient guidance for the jury to decide the threshold issue of whether religious discrimination was involved in the decision to terminate appellant. The Court rejected appellant’s reliance on federal cases decided under the Federal Civil Rights Act rather than the Kentucky Civil Rights Act. The Court also held that the trial court did not err when it granted appellees’ motion for summary judgment on the wrongful discharge claims. Whether the public policy asserted by appellant met the exceptions to the terminable-at-will doctrine was a question of law for the court, not a question of fact for the jury. Further, appellant failed to provide any support that a conversation he claimed led to his termination was constitutionally protected or that it caused the adverse employment action.

B. Skees v. Kentucky Unemployment Insurance Commission

2010-CA-000389 8/12/11 2011 WL 3516301

Opinion by Judge Thompson; Judge Stumbo and Senior Judge Shake concurred. The Court reversed an opinion and order of the circuit court affirming a decision of the Kentucky Unemployment Insurance Commission (KUIC) denying appellant’s claim for unemployment benefits. The Court held that the circuit court erred in affirming the decision because it was based on an improper application of the law. Appellant’s refusal to abruptly relocate her employment for an indeterminate time and with no information regarding compensation for expenses was not a refusal to obey reasonable instructions so that she could be considered as having been discharged for misconduct as set out in KRS Chapter 341. Therefore, appellant was not precluded from receiving unemployment benefits.

III. FAMILY LAW

A. Druen v. Miller

2011-CA-000278 8/12/11 2011 WL 3524422

Opinion by Judge VanMeter; Chief Judge Taylor and Judge Acree concurred. The Court dismissed appellant’s appeal from an order of the circuit court, denying her motion to dismiss appellee’s petition for custody of appellant’s biological minor child. The Court held that the appeal was interlocutory. The order did not determine the issue of custody of the minor child and therefore, was not final since it did adjudicate all the rights of the parties. Although the order granted appellee temporary joint custody and temporary child support, those matters were likewise interlocutory and non-appealable.

B. M.C. v. Commonwealth, Cabinet for Health and Family Services

2010-CA-002088 8/12/2011 2011 WL 3516928

Opinion by Judge Dixon; Judges Keller and VanMeter concurred. The Court affirmed an order of the circuit court finding educational neglect of appellant’s child. The Court held that the circuit court did not abuse its discretion in finding educational neglect as defined in KRS 600.020(1). The facts and evidence permitted an inference that by incurring 30 absences and 16 tardies, the child was unable to benefit from the instruction, structure and socialization provided in a classroom setting. Providing an adequate education for the child’s well-being necessarily required appellant to ensure the child attended school each day to participate in educational instruction. Her repeated inability to do so presented a threat of harm to the child’s welfare by denying the child the right to educational instruction.

C. Rupp v. Rupp

2011-CA-000143 8/26/11 2011 WL 3760043

Opinion by Judge VanMeter; Chief Judge Taylor and Judge Acree concurred. The Court affirmed an order of the circuit court reissuing a domestic violence order against appellant. The Court held that the trial court did not err in reissuing the order after it found that domestic violence had occurred and may occur in the future and that appellee was in fear of imminent physical harm from appellant, that appellee had a reasonable basis for her fear, that the DVO had been effective in preventing domestic violence, and that a continued need for the DVO existed.

IV. INSURANCE

A. Yates v. Shelter Mutual Insurance Company

2010-CA-000022 8/19/11 2011 WL 3628866

Opinion by Senior Judge Shake; Judge Stumbo concurred; Chief Judge Taylor dissented by separate opinion. The Court reversed and remanded a summary judgment of the circuit court in favor of the appellee insurance company finding that a permissive driver step-down provision was valid and effectively limited appellee’s liability to $25,000 for bodily injuries sustained by appellant. The Court held that the trial court erred in granting summary judgment to appellee. Appellee’s failure to provide adequate notification of its reduction in coverage to appellant promoted a reasonable expectation that appellant’s coverage continued to encompass higher bodily liability limits.

V. PROPERTY

A. Maynard v. Williamson

2010-CA-001019 8/5/11 2011 WL 3361732

Opinion by Judge VanMeter; Judges Dixon and Stumbo concurred. The Court affirmed a judgment of the circuit court requiring appellees to pay the remaining amount due on a land contract and requiring appellant to execute a deed transferring certain real property to appellees. The Court held that the trial court possessed the equitable power to require appellees to resubmit payment as being owed for checks appellant had held until they were stale and refused by the bank. Once appellees fulfilled the terms of the land contract, appellant was obligated to perform under the land contract and execute the appropriate deed.

B. Newton v. Newton

2010-CA-001877 8/19/11 2011 WL 3628898

Opinion by Judge Caperton; Judges Combs and Thompson concurred. The Court affirmed orders of the circuit court in a title dispute between the appellant estate and the appellee who was convicted on his guilty plea for reckless homicide in the death of the decedent. The Court held that the result reached by the trial court, that appellee was entitled to half of the property and the estate to the other half, was correct. Because appellee and the deceased owned the property in joint tenancy with right of survivorship, the holdings in both Bates v. Wilson, 313 Ky. 572, 232 S.W.2d 837 (1950), and First Kentucky Trust Co. v. U.S., 737 F.2d 557 (6th Cir. 1984), were distinguishable. Because both appellee and the deceased each had their own separate ownership share and could have conveyed their respective interest in the property whenever and to whomever they chose, while appellee forfeited his right of survivorship pursuant to KRS 381.280, he was not stripped of the ownership of the property that was already vested in him and the property he would have forfeited passed to the heirs of the deceased.

VI. TORTS

A. Jerauld ex rel. Robinson v. Kroger

2010-CA-001429 8/5/11 2011 WL 3363074

Opinion by Judge Clayton; Chief Judge Taylor and Judge Caperton concurred. The Court affirmed a summary judgment in favor of the appellees on a guardian’s claims of negligence and intentional infliction of emotional distress after an inmate at the county detention center attempted to commit suicide, resulting in permanent brain injury. The Court first held that the trial court properly granted summary judgment to the appellees. The acts taken by the appellees, as employees of the detention center, were discretionary and therefore, entitled to qualified official immunity. The Court also held that the appellee psychologist was entitled to qualified official immunity and that official immunity related to the functions performed rather than the title or credentials of the one performing the functions.

B. Jones v. Overstreet

2010-CA-000920 8/12/11 2011 WL 3516837

Opinion by Judge Moore; Judges Acree and Nickell concurred. The Court affirmed a jury verdict in favor of a physician in appellants’ medical negligence action. The Court held that the trial court did not abuse its discretion in admitting into evidence a wire used in an esophageal dilation procedure on the basis that the wire qualified as a true replica of the instrument that allegedly cad the injuries at issue. The wire was properly identified and authenticated as evidence of the wire it represented and the wire used was relevant. The differences between the condition of the sample guide wire and what the appellants speculated was the condition of the actual guide wire were a matter of weight, not admissibility, and appellants could not demonstrate that the sample wire posed a substantial danger of misleading the jury. Appellants’ argument that the trial court failed to admonish the jury per the requirements of KRE 105(a) was meritless. Finally, admitting the sample wire into evidence posed little danger of prejudicing appellants’ case and even if it was needlessly cumulative, any error that resulted from admitting it was harmless.

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

KENTUCKY COURT OF APPEALS PUBLISHED OPINIONS

JULY 2011

I. ADMINISTRATIVE LAW

A. Thomas v. Haney

2010-CA-001026 7/8/11 2011 WL 2693520

Opinion by Judge Moore; Judges Caperton and Stumbo concurred. The Court reversed and remanded a circuit court order dismissing appellant’s petition for declaration of rights arising out of a prison disciplinary proceeding. The Court held that the circuit court erred in dismissing the petition because there was no evidence supporting the decision of the disciplinary review board as required by Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985). No evidentiary basis was provided to the trial court to support the prison officer’s report and the adjustment committee’s determination that a confidential informant was credible and that appellant assaulted another inmate. The information from the confidential informant(s) should have been filed under seal as part of the trial court record in order to provide a meaningful review because without the information, there was no evidence in the record supporting the credibility of the disciplinary charge against appellant. The Court was not permitted to rely on the unsupported conclusions written by the prison officer or the adjustment committee’s review of the confidential informant(s) unknown to the courts.

II. CIVIL PROCEDURE

A. Statewide Environmental Services, Inc. v. Fifth Third Bank

2009-CA-001143 7/29/11 2011 WL 3207783

Opinion by Judge Acree; Judges Dixon and Keller concurred. The Court affirmed a default judgment entered against the corporate appellants and a summary judgment entered against the individual appellants as makers and guarantors on a single note in favor of the appellee bank. The Court first held the standard of review articulated in Jeffrey v. Jeffrey, 153 S.W.3d 849, 851 (Ky. App. 2004), was applicable on a default judgment when a party failed to move the circuit court to set it aside but instead appealed the default judgment directly. The Court was limited to determining whether the pleadings were sufficient to uphold the judgment and whether appellant was actually in default. The Court rejected the corporate appellants’ argument that the standard of review in PNC Bank, N.A. v. Citizens Bank of Northern Kentucky, Inc., 139 S.W.3d 527 (Ky. App. 2003), was applicable. The Court then held that under Jeffrey the pleadings were sufficient to uphold the judgment when the pleadings stated all the elements of a cause of action for the collection of a note. The Court next held that the corporate appellants were actually in default, concluding that the corporations were not deprived of the opportunity to correct their deficient pleadings or to try to set aside the default judgments. Once the corporate appellants’ deficient answers were stricken, the default judgment was properly entered under CR 55.01. The Court next held that the circuit court properly

entered summary judgment against the individual appellants when the individual appellants offered no opposition to the summary judgment motions and the allegations in the complaint averred a proper claim.

III. CONTRACTS

A. Gill v. Washington Mutual Bank

2009-CA-001126 7/1/11 2011 WL 2582506

Opinion by Judge Thompson; Judge Stumbo and Senior Judge Lambert concurred. The Court reversed and remanded a judgment of the circuit court overruling appellants’ objections and exceptions to a master commissioner’s report after concluding that appellants and the appellee bank did not reach an enforceable agreement for the assignment of a judgment, note and mortgage to appellants because there was no meeting of the minds. The Court held that, as a matter of law, the parties were bound by the stipulated oral agreement cited in the record. A third-party indemnification provision added to the written agreement was not a material term to be negotiated but rather, a provision that was not contemplated by the parties in their agreement.

B. Martin v. Pack's Inc.

2010-CA-001048 7/29/11 2011 WL 3207947

Opinion by Judge Thompson; Judge VanMeter and Senior Judge Isaac concurred. The Court affirmed a summary judgment in favor of a commercial and residential construction company on its claim to collect an outstanding debt on a construction contract. The Court held that the trial court did not err in finding that the individual company owners’ conduct following their company’s dissolution created personal liability for paying the outstanding debt. Appellant’s agreement to pay the final payment on the construction project constituted a new debt. Before the company was dissolved it contracted to construct a gas station and the company was solely liable to pay upon completion of the project. However, when the company was dissolved, appellant requested and obtained the construction company’s waiver of its right to file a lien upon the property for the purpose of securing its right to collect the final payment on the project. The agreement became enforceable as a new contract and debt obligation of the individual owners. The Court also held that the grant of summary judgment was not premature. In the two and one-half years between appellant’s answer and the summary judgment, appellant had ample opportunity to obtain discovery and failed to produce evidence of a genuine issue of material fact to preclude summary judgment. The Court also held that the record clearly demonstrated that the corporation was dissolved and thus, appellant could not be shielded from personal liability because his authority was limited by KRS 14A.7-020(3). The Court also held that appellant was not shielded from personal liability by KRS 271B.14-050 and 271B. 6-220(2). Appellant continued to reach agreements in the years following the company’s dissolution and established a 10-year payment plan and produced no affirmative evidence as to how that conduct constituted winding up the business. The Court declined to consider appellant’s argument that he could not be

individually liable in an amount in excess of his equity in the corporation at the time his ownership terminated because appellant failed to cite where he preserved the argument for review. The Court finally held that any error in the circuit clerk’s failure to timely mail appellant’s counsel a copy of the summary judgment, thus precluding appellant from filing a motion to reconsider pursuant to CR 59.05, was harmless when appellant failed to show what he would have presented to the trial court which could not have been previously presented.

IV. CRIMINAL LAW

A. Hadaway v. Commonwealth

2009-CA-001625 7/22/2011 2011 WL 2937233

Opinion by Judge VanMeter; Judges Dixon and Lambert concurred. On discretionary review, the Court affirmed an opinion of the circuit court affirming a district court judgment entered after a jury found appellant guilty of DUI and possession of an open alcohol container in a motor vehicle. The Court held that the testimony of the police officers constituted substantial evidence to support the district court’s conclusion that an officer observed appellant in accordance with KAR 8: 030 when the officer remained in the room to observe appellant for 26 minutes prior to administering a breath alcohol test. The Court then held that while the circuit court erred in admitting the breathalyzer test results, absent introduction of the maintenance log, testimony that appellant was observed driving erratically, appellant’s failure of the field sobriety tests and a passenger’s remarks to the police that he and appellant had consumed alcohol supported the DUI conviction even without the breath alcohol test results. Therefore, the unpreserved error did not result in manifest injustice.

B. Harris v. Commonwealth

2008-CA-001342 7/22/11 2011 WL 2935053

Opinion by Judge Lambert; Judges Caperton and Keller concurred. On remand from the Supreme Court of Kentucky for further consideration in light of the decision in Hollon v. Commonwealth, 334 S.W.3d 431 (Ky. 2011), the Court affirmed a circuit court order denying appellant’s RCr 11.42 claims for ineffective assistance of trial counsel for the reasons stated in the initial opinion, holding that appellant’s claims had already been presented in his direct appeal to the Kentucky Supreme Court. The Court then held that while the trial court could have held the RCr 11.42 motion in abeyance pending the outcome of the direct appeal, it was not ineffective assistance of counsel for appellate counsel not to petition the Kentucky Supreme Court to hold the direct appeal in abeyance pending a ruling by the trial court on appellant’s motion for post-conviction relief filed pursuant to RCr 11.42.

C. Henderson v. Commonwealth

2010-CA-001491 7/15/11 2011 WL 2731857

Opinion by Judge Combs; Judge Lambert and Senior Judge Shake concurred. The Court affirmed an order of the circuit court denying appellant’s motion for relief pursuant to CR 60.02 wherein he argued that the amendment of his PFO

indictment was a violation of RCr 6.16. The Court held that the circuit court did not err in denying relief and that the unpublished opinion in Miller v. Commonwealth, 2009 WL 160583 (Ky. Jan. 22, 2009), did not affect the Supreme Court’s previous decision that the amendment to the indictment was not improper. There was not a facial violation of RCr 6.16 and appellant could not show that he was prejudiced by the amendment. The amendment to appellant’s indictment was related to a status offense, it was made after the verdict was returned on the substantive offenses but before the jury returned a verdict on the PFO charge, and the amendment did not change the offense charged in any way.

D. Jackson v. Commonwealth

2010-CA-001450 7/8/11 2011 WL 2899416

Opinion by Judge Lambert; Judge Combs and Senior Judge Shake concurred. The Court affirmed a judgment of the circuit court entered after a jury found appellant guilty of first-degree rape, first-degree wanton endangerment and illegal possession of drug paraphernalia and after appellant waived jury sentencing and agreed to a sentence of twelve-years’ imprisonment. The Court first held that the trial court did not abuse its discretion by allowing hearsay testimony under the excited utterance exception to KRE 803(2). The victim’s statements were given to the officer who testified immediately after the attack, the physical evidence supported the details she provided to police, the statements were given in close proximity to where the attack occurred, there was little or no time for the victim to fabricate the story, and the victim was clearly excited and upset when she gave her statement to the police. The Court next held that when appellant failed to move to suppress the victim’s identification, the trial court was not required to hold an evidentiary hearing or enter any findings of fact thus, palpable error review under RCr 10.26 was precluded. The Court also held that the facts provided the police with probable cause to arrest appellant for possession of drug paraphernalia. Therefore, his arrest was not illegal, the victim’s identification was not tainted and there was no possibility that the result of the trial would have been different. The Court finally held that the language of the jury instruction on the possession charge did not contain alternate theories of guilt. Further, because there was no evidence that appellant possessed any foil, the language included in the instruction was merely superfluous and any error was harmless.

E. Sands v. Commonwealth

2009-CA-001824 7/29/11 2011 WL 3207795

Opinion by Judge Wine; Judge Clayton concurred; Judge Combs concurred in part and dissented in part by separate opinion. The Court affirmed a judgment of the circuit court accepting appellant’s Alford plea and denying appellant’s motion to withdraw the guilty plea. The Court held that the trial court did not err in determining that appellant possessed the requisite competence to be prosecuted or to enter a plea. The record indicated that appellant was aware of the nature of the charges against him and that he was capable of providing

assistance to counsel. A psychiatrist detailed appellant’s high intelligence scores, appellant’s own writings to the court showing a sophistication of legal research and writing, the psychiatric evaluations emphasized that appellant was a malingerer with tendencies to be uncooperative by choice, and the court relied upon the professional evaluations rather than solely upon testimony from appellant or his attorney. The Court then held that the trial court did not err when it denied the motion to withdraw the guilty plea. The totality of the circumstances showed that the court and appellant had interacted over a four-year period, the court was familiar with appellant, the court relied heavily upon the classification of appellant as a malingerer, the court did not believe that appellant really needed the medication he claimed to be essential and the trial judge was in the best position to judge appellant’s credibility.

F. Ward v. Commonwealth

2010-CA-000732 7/29/11 2011 WL 3209896

Opinion by Judge Lambert; Judges Dixon and VanMeter concurred. The Court affirmed a judgment of conviction and sentence entered subsequent to appellant’s conditional guilty plea, reserving the right to appeal from an order denying a motion to suppress evidence. The Court held that the trial court did not err in denying the motion to suppress the drug evidence found in a warrantless search of appellant’s car after he was stopped for a traffic violation. The thirty-three minutes that elapsed between the stop and arrest, with eight to ten of the minutes elapsing before the dog sniff began and another ten to fifteen elapsing before the dog alerted three times, was not an unreasonable delay and did not warrant suppression of the drugs discovered and seized.

V. EMPLOYMENT

A. Board of Trustees of the Kentucky Retirement Systems v. Haywood

2010-CA-001204 7/22/11 2011 WL 2935403

Opinion by Judge Keller; Judge Dixon concurred in result only; Judge VanMeter concurred in result only by separate opinion. The Court vacated, reversed and remanded an order of the circuit court reversing a Board of Trustees of the Kentucky Retirement System’s finding that a worker did not qualify for disability retirement benefits. The Court first held that the circuit court erred in finding that the hearing officer’s recommended order did not fully apprise appellee of her right to file exceptions because it did not warn appellee of the consequences for failure to file exceptions. The holding in Rapier v. Philpot, 130 S.W.3d 560 (Ky. 2004), was dispositive of the issue and the Court of Appeals was bound to follow it. The Court next held that the circuit court erred in finding that appellee was not required to file exceptions in order to preserve the issues because filing the exceptions would be an exercise in futility. The circuit court review was limited to the record and the circuit court could not use the Board’s failure to produce evidence on the issue of futility that it was not obligated to produce. Because the record did not support the finding of futility, the finding must be vacated. The Court then held that because appellee failed to file the exceptions, the circuit court was precluded from addressing the issues

raised in the petition for review. The Court next held that the circuit court impermissibly shifted the burden of proof to the Board. Because appellee failed to meet her burden to prove her disability by a preponderance of the evidence, the Board was not required to put forth rebuttal evidence. The Court next held that the record did not support the circuit court’s finding that the Board ignored evidence. The Court finally held that absent a valid constitutional challenge, removing the fact-finding authority from the Board, to avoid what the circuit court deemed an inherent conflict, was only within the purview of the legislature.

B. Kentucky Retirement Systems v. Lowe

2010-CA-000835 7/8/11 2011 WL 2693529

Opinion by Judge Wine; Judge VanMeter and Senior Judge Shake concurred. The Court affirmed an opinion and order of the circuit court overruling a decision of the Kentucky Retirement Systems Medical Review Board and directing disability retirement benefits be awarded to appellee. The Court held that the Board misconstrued applicable statutes and erred in its interpretation of the law when it concluded that appellee failed to present objective medical evidence to establish her disability. The opinions and conclusions of the treating physicians must be considered objective medical evidence for purposes of KRS 61.600 and the Board was not free to discount them merely because they were based in part upon the subjective complaints of a patient. Given the overwhelming evidence that appellee was disabled from her previous occupation, which was supported by the unanimous opinions of four treating physicians and one psychologist, the circuit court correctly overruled the decision of the Board.

C. West v. Kentucky Retirement Systems

2009-CA-001176 7/15/11 2011 WL 2731844

Opinion by Judge Wine; Judges Acree and Clayton concurred. The Court reversed and remanded an order of the circuit court affirming a denial of appellant’s claim for disability retirement benefits by the Board of Trustees of the Kentucky Retirement Systems. The Court first held that the hearing officer erred in failing to consider the cumulative effect of appellant’s various injuries and impairments. The Court next held that smoking could not be considered a pre-existing condition for the purposes of disability retirement in Kentucky. Therefore, the hearing officer erred in finding that appellant’s tobacco use was a pre-existing condition to the ultimate diagnosis of COPD. The Court then held that KRS 61.600(3) required only that appellant come forward with some evidence that his condition did not predate his employment with the Commonwealth and that the Systems then bore the burden of going forward to rebut the evidence. Since the Systems offered no contrary medical evidence, the hearing officer erred by rejecting appellant’s medical evidence.

VI. FAMILY LAW

A. D.J.D. v. Cabinet for Health and Family Services

2010-CA-001184 7/8/11 2011 WL 2693512

Opinion by Judge Thompson; Judge Stumbo and Senior Judge Shake concurred. The Court affirmed an order of the circuit court involuntarily terminating appellant’s parental rights. The Court held that the family court was presented with substantial evidence to support the termination under KRS 625. 090. Based on the record, the family court did not abuse its discretion by finding it was in the best interests of the child to terminate his mother’s parental rights. Further, while the mother had not abused drugs for several months prior to the final hearing in the case, the family court was presented with sufficient facts that the mother had not provided for her child and had shown no ability to provide for the child in the near future.

B. L.D. v. J.H.

2010-CA-000792 7/1/11 2011 WL 2582557

Opinion by Judge Dixon; Judge Nickell and Senior Judge Shake concurred. The Court affirmed an order of the family court awarding permanent custody of appellant’s son to the child’s paternal grandparents. The Court first held that that mere compliance with a permanency plan did not equate to a legal proceeding under KRS 403.270. Further, substantial evidence supported the family court’s finding that the paternal grandparents, with whom the child had been placed in dependency, neglect and abuse proceedings, provided a stable environment for the child. Therefore, they had standing to seek custody by virtue of KRS 620.027. The Court next held that appellees’ cooperation with a permanency plan did not result in a waiver of their right to seek permanent custody of the child. The Court next held that the family court did not abuse its discretion in awarding permanent custody to appellees when it thoroughly analyzed all of the factors under both KRS 403.270(2) and KRS 620.023 in reaching its decision. The Court finally held that the family court did not err in refusing to permit the child to testify in chambers when the guardian ad litem was not properly served and appellant did not thereafter seek to have the child testify by deposition.

C. Meekin v. Hurst

2010-CA-001641 7/22/11 2011 WL 2935813

Opinion by Senior Judge Shake; Judges Dixon and Nickell concurred. The Court affirmed an order of the circuit court denying appellant’s petition for primary residential custody of her daughter. The Court held that the trial court did not err in denying the request and disregarding a mediation agreement between the parties purporting to create a presumption that the child’s wishes regarding her residence would constitute her best interests. The court could not abdicate the responsibility imposed by KRS 403.320(3) and the record contained ample evidence to support the court’s findings and conclusions that the father was the most appropriate primary residential custodian.

VII. OCCUPATIONAL SAFETY

A. David Gaines Roofing, LLC v. Kentucky Occupational Safety and Health Review Commission

2010-CA-001050 7/1/11 2011 WL 2586285 DR Pending

Opinion by Judge Dixon; Judge Caperton and Senior Judge Lambert concurred. The Court affirmed an order of the circuit court affirming an order of the Kentucky Occupational Safety and Health Review Commission affirming a citation to the appellant roofing company for a repeat/serious violation of a fall protection regulation and assessing a penalty. The Court held that the circuit court correctly affirmed the agency decision. The record contained substantial evidence to support the determination that appellant, with reasonable diligence, could have discovered its employees were not complying with the safety regulations.

VIII. PROPERTY

A. City of Lebanon, Kentucky v. Goodin

2010-CA-000941 7/15/11 2011 WL 2731853

Opinion by Chief Judge Taylor; Judges Acree and Combs concurred. The Court affirmed a summary judgment of the circuit court declaring invalid certain ordinances annexing unincorporated real property into a city. The Court held the circuit court properly granted summary judgment because the boundaries of the annexed property were not contiguous or adjacent to the boundaries of the city per KRS 81A.410(1)(a) and therefore, the annexation violated the statute.

B. Tariq v. Worthington Glen Council of Co-Owners, Inc.

2010-CA-001610 7/22/11 2011 WL 2935770

Opinion by Judge Combs; Judge Lambert and Senior Judge Shake concurred. The Court vacated and remanded an order of the circuit court finding that appellants violated provisions of condominium association’s bylaws when they leased their condominium to a tenant. In a case of first impression, the Court held that because the amendment to the bylaws restricting leasing of condominiums was made without the proper percentage of owner approval, the association failed to state a cause of action against appellants. Therefore, the trial court’s finding was clear error.

IX. TORTS

A. Buckler v. Mathis

2010-CA-000828 7/22/11 2011 WL 2937251

Opinion by Judge Lambert; Judge Keller and Senior Judge Shake concurred. The Court affirmed a judgment dismissing appellant’s claim against appellee after a jury found that appellant had not met the $1,000 statutory medical expense threshold required by KRS 304.39-060(2) on his claim for injuries he sustained in a motor vehicle accident. The Court first held that the trial court did not commit error in including in the jury instructions the threshold question of whether appellant’s medical expenses were reasonably needed as a result of the motor vehicle accident. The Court also held that the instructions provided by the

trial court were in line with binding precedent as set forth in Bolin v. Grider, 580 S.W.2d 490 (Ky. 1979). The Court next held that the trial court did not err by attempting to educate the jury as to what it should do in relation to completing the instructions and verdict forms depending on what findings it made. The Court next held that the trial court correctly determined that appellee’s objections to a doctor’s deposition testimony were timely filed by operation of CR 6.01. The Court then held that trial court did not abuse its discretion in striking portions of the doctor’s testimony, after which the court excluded appellant’s claim for future medical expenses from the trial. The doctor qualified his opinion on the permanency of appellant’s claimed injuries to the performance of a current physical examination, which never occurred, even after the trial court permitted appellant to take additional testimony from the doctor regarding permanency.

B. Faller v. Endicott-Mayflower, LLC

2008-CA-001506 7/1/11 2011 WL 2582339 DR Filed

Opinion by Judge Nickell; Chief Judge Taylor and Judge Combs concurred. On remand from the Kentucky Supreme Court to consider the matter under Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010), the Court again affirmed a summary judgment in favor of appellees on appellant’s claims related to injuries she sustained when she fell while leaving a restaurant. The Court distinguished the facts in McIntosh and held that appellant was not foreseeably distracted nor did a third party push her into danger. Therefore, the trial court’s award of summary judgment was proper. Unlike McIntosh, appellant tripped over the threshold marked with yellow- and black-striped caution tape while leaving a restaurant following a leisurely holiday meal. She admitted being familiar with the threshold, having traversed it on prior occasions, and admitted she would not have fallen had she been looking in the direction she was walking.

X. WILLS AND ESTATES

A. Hoskins v. Beatty

2010-CA-000677 7/1/11 2011 WL 2582554

Opinion by Judge VanMeter; Judges Dixon and Stumbo concurred. The Court affirmed in part and reversed and remanded in part a judgment of the circuit court finding that the appellee estate and heirs could recover certain property, as well as accrued interest and earnings from the property, they claimed passed to them upon the life tenant’s death. The Court first held that the trial court correctly concluded that the heirs were entitled to the property and while the life tenant had the unlimited power to use and consume the estate property during her lifetime, she could not make a testamentary disposition of the remaining property to appellant. The Court then held that the trial court erred in concluding that the heirs were entitled to the cash dividends and interest earned during the time of the life estate. Absent a limitation imposed by the grantor, the life tenant was entitled to the income or benefits accrued during the life estate. The Court remanded to the circuit court to make further factual findings to

determine the amount of property or principal remaining in the estate at the time of the life tenant’s death.

B. Smith v. Smith

2010-CA-000823 7/1/11 2011 WL 2585925 Rehearing Pending

Opinion by Judge VanMeter; Judges Dixon and Stumbo concurred. The Court reversed an order of the circuit court finding that the execution of a purported will substantially complied with KRS 394. 049. The Court held that the document, which was not wholly in the handwriting of the testator, could not be admitted to probate when two persons actually observed the testator subscribing the document but only one subscribed her name to the document as a witness.

XI. WORKERS' COMPENSATION

A. Audi of Lexington v. Elam

2010-CA-002038 7/8/11 2011 WL 2693503

Opinion by Judge Combs; Judges Thompson and VanMeter concurred. The Court affirmed an opinion of the Workers’ Compensation Board directing an ALJ to enter an order awarding benefits consistent with a permanent, partial disability rating substantially higher than the rating originally assigned by the ALJ. The Court held that the Board did not overlook or misconstrue controlling statutes or precedent in concluding that the ALJ’s calculation was erroneous. The Board properly determined that the worker should have been awarded permanent, partial disability benefits based on the higher impairment rating after subtracting the worker’s pre-existing, active impairment rating from his overall impairment rating. The ALJ was not at liberty to assume a doctor’s analysis that the portion of the worker’s permanent impairment rating attributable to his pre-existing impairment progressed at a rate commensurate with that portion of his impairment attributable to the work-related injury when there was no medical testimony to support the assumption.

June 2011 - Kentucky Court of Appeals Monthly Summary of Published Decisions with digests and links to full text

KENTUCKY COURT OF APPEALS PUBLISHED OPINIONS

JUNE 2011

I. CIVIL PROCEDURE

A. Commonwealth, Cabinet for Health and Family Services v. EPI Healthcare, LLC

2010-CA-001333 6/3/11 2011 WL 2162992

Opinion by Judge VanMeter; Judges Dixon and Keller concurred. The Court affirmed an order of the circuit court granting summary judgment in favor of appellee on appellant’s claim seeking reimbursement for Medicaid overpayments. The Court held that the trial court did not err by finding the present action to be barred by res judicata. In reaching its conclusion, the Court held that the language of the Supreme Court opinion in prior litigation did not implicitly reserve the present claims but merely narrowed its holding to the limited issue before it. The Court then held that the Cabinet was obligated to assert all claims it had related to the recoupment dispute in the previous administrative appeal wherein appellee disputed the amount of overpayments and argued that recoupment was barred by the statute of limitations.

B. Young v. U.S. Bank, Inc.

2009-CA-001759 6/3/11 2011 WL 2162539

Opinion by Judge Acree; Judge Stumbo and Senior Judge Lambert concurred. The Court affirmed an order of the circuit court denying sua sponte relief from a foreclosure judgment and order of sale as not satisfying the requirements of CR 60.02. The Court first held that while the circuit court retained the authority to enforce the original judgment, it lost jurisdiction to modify either the order of sale or the order confirming the master commissioner’s report 10 days after entry, absent a timely appeal. While the court also retained limited authority under CR 60.02, neither party filed a CR 60.02 motion, which was a necessary prerequisite to the grant of CR 60.02 relief. Therefore, the orders entered more than 10 days after the order confirming sale, other than an order enforcing the judgment, were void ab initio. The Court also held that the denial of appellants’ motion to stay execution of a writ of possession was moot and the Court lacked jurisdiction to consider it because appellants no longer occupied the premises.

II. CONSITUTIONAL LAW

A. Gingerich v. Commonwealth

2008-CA-001493 6/3/11 2011 WL 2162529

Opinion by Senior Judge Shake; Judges Stumbo and Thompson concurred. The Court affirmed an order of the circuit court affirming appellants’ convictions for violating KRS 189.820, which required a slow-moving vehicle (SMV) emblem to be displayed on appellants’ horse-drawn buggies. The Court ultimately held that the statute did not unconstitutionally interfere with appellants’ ability to freely exercise their religion. In reaching that conclusion, the Court first held that KRS

189.820 was a neutral law of general applicability and therefore, did not invoke strict scrutiny analysis. The Commonwealth’s objective of ensuring public safety through the most effective means possible overshadowed any encumbrances on religious practice. The Court rejected appellants’ argument that a bicycle exemption created a showing of legislative belief that the SMV emblems did not promote roadway safety. The Court also rejected appellants’ argument that the Commonwealth’s goal of road safety with respect to slow-moving vehicles could be achieved through less restrictive means. The Court then held that the trial court did not err by not imposing upon the Commonwealth the burden of production to rebut appellants’ claim of selective enforcement. Given the evidence presented to the trial court and the weight given the testimony by the trial court, appellants failed to establish a prima facie showing of discriminatory effect and discriminatory purpose.

III. CORPORATIONS

A. Rednour Properties, LLC v. Spangler Roof Services, LLC

2009-CA-001159 6/10/11 2011 WL 2535330

Opinion by Judge Lambert; Judge Stumbo concurred; Senior Judge Shake dissented in part by separate opinion. The Court affirmed an opinion and order of the circuit court awarding damages, interest and attorney fees on the appellee’s claim that appellant failed to pay an outstanding balance due for to several change orders to a contract for work at an apartment complex. The Court first held that the trial court did not err in piercing the corporate veil to hold the sole member and agent of the appellant corporations personally liable. There was substantial evidence that the corporate entities were dummy corporations; the individual was the sole member and agent of several companies, at least one of which was a subsidiary of another; and the individual admitted setting up the LLCs for tax purposes. The Court next held that the circuit court did not err in finding that appellee had substantially performed the work under the contract. The Court rejected appellants’ argument that they were not under an obligation to pay pursuant to the contract until appellee paid the material supplier when the contract only required appellee to furnish the materials used, which he did. The Court next held that the circuit court did not err in imposing late fees and interest on the amount of the judgment after it specifically found that appellants agreed to each change order and the record fully supported this finding. The Court finally held that appellee’s attorney was a necessary party to the appeal for appellants to contest the award of attorney fees.

IV. CRIMINAL LAW

A. Bradford v. Commonwealth

2010-CA-001314 6/24/11 2011 WL 2496270

Opinion by Judge Lambert; Senior Judge Shake concurred; Judge Keller concurred in result only. The Court reversed and remanded with directions a judgment of the circuit court entered pursuant to appellant’s guilty plea to incest, reserving the right to appeal the circuit court ruling that KRS 530.020 applied to the step-grandparent/step-grandchild relationship. In a case of first impression,

the Court held that the legislature did not intend to extend the reach of the statute to the step-grandparent/step-grandchild relationship and therefore, the circuit court erred in not amending the charge to sodomy in the third degree.

B. Burke v. Commonwealth

2010-CA-000655 6/10/11 2011 WL 2548724

Opinion by Judge Clayton; Judge Nickell and Senior Judge Isaac concurred. The Court affirmed an order of the circuit court revoking appellant’s probation. The Court held that the trial court did not abuse its discretion in revoking appellant’s probation. There was no requirement for the court to advise appellant that he could waive his constitutional rights and appellant’s due process rights were not violated.

C. Ferguson v. Commonwealth

2010-CA-001031 6/24/11 2011 WL 2496245

Opinion by Judge Caperton; Chief Judge Taylor and Judge Wine concurred. On discretionary review, the Court reversed and remanded an order of the circuit court affirming an order of the district court denying appellant’s motion to suppress the results of a breathalyzer test due to an alleged violation of KRS 189A.105(3). The Court distinguished the holding in Bhattacharya v. Commonwealth, 292 S.W.3d 901 (Ky. App. 2009), and held that appellant’s rights were violated when the police did not allow her to retrieve her attorney’s phone number from her cell phone and did not furnish her with a telephone capable of connecting with the number to be dialed. The Court also held that the district court erred in finding that appellant had the opportunity to use her cell phone while in the police cruiser when she was not informed of her right under KRS 189A.105(3) until after she exited the cruiser, the police took her cell phone and she only had the cell phone outside the period immediately preceding the administration of the test. The Court finally held that because appellant’s right to contact and communicate with her attorney was frustrated by state action, the district court erred in not suppressing the results of all tests conducted pursuant to KRS 189A.

D. Mundy v. Commonwealth

2010-CA-000507 6/17/11 2011 WL 2416733

Opinion by Judge Acree; Judges Lambert and Thompson concurred. The Court reversed and remanded an order of the circuit court denying a motion to suppress evidence, after which appellant entered a conditional guilty plea to first-degree possession of controlled substance. The Court first held that although the emergency aid exception to the Fourth Amendment’s warrant requirement applied to automobiles, a warrantless search pursuant to the doctrine could only be upheld if the police entry into the vehicle was based on an objectively reasonable belief, given the information at the time of entry, that a person within the vehicle was in need of immediate aid. A person sleeping in a vehicle on a summer night, headlights off and legally parked did not justify a reasonable belief that appellant was in medical peril necessitating aid. Therefore, the officer’s entry into

appellant’s car was not objectively reasonable because the information available to the officer at the time of entry, viewed objectively, did not reasonably indicate that appellant was in immediate need of aid.

E. Ousley v. Commonwealth

2010-CA-001579 6/24/11 2011 WL 2496279

Opinion by Chief Judge Taylor; Judges Caperton and Wine concurred. The Court reversed and remanded a judgment of the circuit court entered subsequent to appellant’s conditional guilty plea reserving the right to appeal the denial of his motion to suppress evidence seized as a result of warrantless searches of his trash toter. The Court held that considering the configuration of the homes in appellant’s neighborhood and particularly appellant’s home, appellant possessed a reasonable expectation of privacy in his trash toter where located on his property and that the warrantless searches by the police violated the Fourth Amendment to the United States Constitution and Section 10 of the Kentucky Constitution. Accordingly, the circuit court erred by denying the motion to suppress the evidence seized in the warrantless searches.

F. Prewitt v. Commonwealth

2009-CA-002308 6/3/11 2011 WL 2162548

Opinion by Judge Dixon; Judge Caperton and Senior Judge Lambert concurred. The Court affirmed a circuit court order denying appellant’s motion to suppress evidence underlying her conditional plea of guilty to trafficking in marijuana greater than five pounds. The Court first held that under the totality of the circumstances, given the police officer’s training and experience, the officer had a reasonable and articulable suspicion to detain a package during a scheduled parcel interdiction operation and that the detention to present the package to a drug dog was not unduly lengthy. Because the first package was properly detained and seized, the Court rejected the argument that the second package, which appellant attempted to retrieve, was tainted evidence. The Court then held that the affidavit supporting the warrant to search her package was sufficient to establish probable cause. Even after removing inaccuracies created by the officer’s use of “cut and paste” from the first affidavit to create the affidavit to search appellant’s package, the remaining information contained in the affidavit was more than sufficient to establish probable cause justifying the issuance of the warrant.

G. Stage v. Commonwealth

2010-CA-000475 6/17/11 2011 WL 2416731

Opinion by Judge Moore; Judge Lambert and Senior Judge Isaac concurred. In an opinion and order the Court dismissed appellant’s appeal from an order finding appellant to be a high-risk sex offender, requiring him to register under the Kentucky Sex Offender Registration Act (SORA), KRS 17.510. The Court held that because the 1998 version of SORA was the version in effect when appellant was released from prison and initially registered, appellant had no judicially recognizable interest in the constitutionality of the 2006 version of the Act and thus, the Court was prohibited from issuing an advisory opinion on the question of

whether the statutory scheme was void as violating Section 51 of the Kentucky Constitution.

V. FAMILY LAW

A. Bennett v. Bennett

2010-CA-001016 6/10/11 2011 WL 2548791

Opinion by Judge Acree; Chief Judge Taylor concurred; Judge Combs concurred by separate opinion. The Court affirmed in part, reversed in part and remanded an order of the family court denying appellant’s motion to modify his child support obligation and calculating an arrearage in favor of appellee. The Court first held that the family court erred in failing to afford the parties an opportunity to file written objections and have a hearing on the objections pursuant to CR 53.06. The Court next held that the family court abused its discretion by denying appellant’s motion to reduce his child support with regard to installments of child support accruing after the filing of his motion to modify child support. The Court next held that the family court did not abuse its discretion in denying appellant’s motion to modify child support with regard to installments that accrued prior to the date appellant filed the motion, absent evidence that the parties had an agreement to reduce child support upon the emancipation of each of their children. The Court finally held that KRS 403.213(3) did not establish an automatic modification to appellant’s support obligation upon the emancipation of each child because the child support order did not set the obligation as a per-child amount but rather, a lump sum. Reconciling KRS 403.213(3) and KRS 403.213(1), the Court held that in such cases the obligor must return to court for the court to make a distinction between the child’s emancipation and any other obligation that is part of the same decree or order.

B. Brooks v. Brooks

2010-CA-001720 6/24/11 2011 WL 2496282

Opinion by Judge VanMeter; Judge Dixon concurred; Judge Stumbo dissented by separate opinion. The Court affirmed an order of the circuit court in a dissolution action, which ordered appellant to pay child support, ordered appellee to pay maintenance to appellant and divided marital property. The Court first held that the trial court did not err by exempting appellee’s Kentucky Teacher’s Retirement Account from classification as marital property. Because appellant did not have a retirement account, the divisionary rule under KRS 401.190(4) was not triggered and under KRS 161.700, the retirement account was non-marital property and could not be treated as an economic circumstance for purposes of dividing marital property. The Court next held that the trial court’s award of maintenance was not an abuse of discretion when it considered the factors set forth in KRS 403.200 to determine the amount and duration was sufficient for appellant to obtain a GED and job training. The Court finally held that the trial court did not abuse its discretion in considering the children’s transportation needs in awarding a vehicle to appellee for the children to drive to school.

C. Corns v. Corns

2010-CA-001911 6/17/11 2011 WL 2416864 Opinion by Judge Nickell; Judge Thompson concurred; Senior Judge Shake dissented by separate opinion. The Court reversed and remanded an order of the family court modifying an award of joint custody to grant sole custody to the appellee. The Court held that the family court lacked subject matter jurisdiction to decide the issue of custody modification because appellant’s pro se motion regarding the medical necessity for the child’s tonsillectomy, which the trial court erroneously transformed into a hearing on custody modification, lacked the statutorily required affidavit or verification. Further, appellee’s attempt to cure and join appellant’s motion or consent to it was ineffectual because the motion was statutorily inadequate to raise the issue. Even if appellee’s verified response could be considered a separate motion and statutorily sufficient to convey subject matter jurisdiction, technically there was no notice provided to appellant that the hearing on his motion was a hearing on custody modification.

D. Heltsley v. Frogge

2009-CA-001867 6/17/11 2011 WL 2416633

Opinion by Judge Acree; Judges Caperton and Clayton concurred. The Court affirmed orders of the circuit court finding that the appellee grandparents were not a child’s de facto custodians and ordering the grandparent’s to pay a portion of the father’s attorney fees. The Court first held that the circuit court properly found that the grandparents did not satisfy the requirements of KRS 403.270(1) to establish de facto custodian status. The father’s actions in the divorce proceedings were sufficient to suspend the running of time needed to confer appellees standing as de facto custodians. The Court also held that the circuit court did not abuse its discretion in awarding attorney fees to the father. It was not necessary for the court to conclude that the grandparents employed delay tactics but only to consider the financial resources of the parties, even discounting alleged inconsistencies in the invoice for services. The father’s legal bill was well over the amount awarded, and the grandparents were not entitled to cross-examine the attorney regarding the billing statement.

E. Mills v. Abbott

2009-CA-001114 6/24/11 2011 WL 2508162

Opinion by Senior Judge Shake; Judges Lambert and Nickell concurred. The Court affirmed a summary judgment in favor of appellees on their suit to enforce a judgment lien against two parcels of property owned by the appellant attorney after a damage judgment for breach of fiduciary duty was entered against the attorney. The Court held that the trial court properly granted summary judgment to appellees. Because the judgment lien was entered prior to the marriage of the attorney and his wife, the wife’s dower interest in the property was subject to the preexisting encumbrance.

VI. INSURANCE

A. Certain Underwriters at Lloyds's, London v. Abundance Coal, Inc.

2009-CA-001283 6/24/11 2011 WL 2496203

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 granting the appellee coal company’s motion to dismiss the appellant insurer’s declaratory judgment action seeking a declaration that an insurance contract did not provide coverage on a claim that the coal company’s operations had tortiously caused coal dust to enter real property. The Court first held that the circuit court erred in dismissing the action to the extent it rendered the insurer liable for punitive damages when the insurance contract specifically excluded such coverage. The Court then held that the trial court erred in dismissing the action after concluding that the tort claims should necessarily be covered by the policy. Applying the holding in Motorists Mut. Ins. Co. v. RSJ, Inc., 926 S.W.2d 679 (Ky. App. 1996), the Court held that the circuit court properly determined that the “Absolute Pollution” exclusion in the contract was ambiguous. However, the circuit court was not correct in concluding that the tort claims were covered. The Court remanded for additional proceedings to determine whether the alleged injuries suffered by the property owners were a result of pollution caused by the coal company and for which the exclusions would apply, or whether the dust and debris which allegedly entered the property did not constitute pollution as defined in the policy and for which the insurer would be liable.

B. The Medical Protective Company v. Wiles

2010-CA-000262 6/17/11 2011 WL 2420011

Opinion by Judge Lambert; Judge Stumbo and Senior Judge Shake concurred. The Court affirmed in part, reversed in part and remanded a multi-million dollar judgment of the circuit court in a third-party insurance bad faith claim brought pursuant to Kentucky’s Unfair Claims Settlement Practices Act (UCSPA). The claim arose from appellant’s handling of appellees’ medical malpractice claim. The Court first held that the jury instructions on punitive damages were proper in that they required the jury to find that there was no reasonable basis for the insurer’s action or inaction or that the insurer acted with reckless disregard for whether a there was a basis for delaying payment of the claim. The Court then held that there was sufficient evidence to warrant the award of punitive damages. The twenty-seven-month delay between the injury and the initial settlement offer, where fault was clear, could not be considered mere delay and the insurer’s focus on the financial appearance of the company established a questionable motive for the method of investigation and timing of the settlement. This was sufficient evidence to submit the issue of bad faith to the jury. The Court next held that appellant’s failure to present the issue of an excessive punitive damage award to the trial court precluded review on appeal. The Court also held that the trial court did not abuse its discretion in permitting witnesses to characterize the settlement offer as low ball; the trial court did not abuse its discretion in excluding the testimony of the insurer’s expert witnesses, none of whom had no claims handling or adjusting experience; the trial court did not abuse its discretion in permitting evidence of the insurer’s national reserves to be introduced because the evidence was relevant to show a motivation for late reserving practices; and the trial court

did not err in allowing the introduction of a surveillance tape of the injured appellee in order to question why the insurer failed to review the surveillance after learning it was not helpful to the defense, while at the same time contending that appellee was exaggerating her symptoms. The Court then held that the trial court erred as a matter of law when it determined that appellees were entitled to an award of attorney fees and statutory interest pursuant to KRS 304.12-235. The plain and unambiguous language of the statute limited its application to named insureds and healthcare providers, not third-party claimants. The Court finally held that the trial court did not abuse its discretion in denying the insurer’s motion to lower the interest rate on the post-judgment interest or in ordering the interest to run from the entry an earlier judgment and order when a second order merely reconsidered and corrected the earlier order.

VII. PROPERTY

A. Bowles v. Hopkins County Coal, LLC

2009-CA-001209 6/24/11 2011 WL 2508163

Opinion by Senior Judge Shake; Judges Dixon and Nickell concurred. The Court affirmed an opinion, judgment and order of the circuit court in a declaration of rights action brought by successors in interest to surface and other mineral rights. The Court held that the trial court correctly found that the owner of the coal beds had the right to capture coal bed methane (CBM) while it was still located in the coal beds and appellants had the right to capture it once the mining process was complete.

B. Golden Oak Mining Company v. Lucas

2008-CA-002148 6/17/11 2011 WL 2416600

Opinion by Judge Acree; Judges Dixon and Lambert concurred. The Court reversed a judgment of the circuit court entered after a jury trial on appellees’ claims that their water supply was adversely impacted by appellant’s underground mining activities. The Court held that the trial court erred by denying appellant’s motion for summary judgment on statute of limitations grounds. The statute of limitations in KRS 413.120 was applicable to both appellees’ statutory and common law claims and appellees knew they had been injured and also that their injury may have been caused by appellant’s conduct more than five years before appellees filed their civil suit. The Court also held the discovery rule in Wiesman v. Alliant Hospitals, Inc., 37 S.W.3d 709 (Ky. 2000) was inapplicable in a property damage action; appellees could not rest upon their rights until a governmental agency substantiated their suspicions that appellant’s conduct caused their injury; the accrual of the action was unaffected by a Cabinet investigation; that statutory and equitable estoppel were inapplicable to the facts; and that the nuisance and trespass were not continuing or temporary but were permanent and had ended when the limitations period began to run.

VIII. PUBLIC HEALTH

A. King v. Butler Rest Home, Inc.

2010-CA-001467 6/17/11 2011 WL 2416752

Opinion by Judge VanMeter; Judge Dixon concurred; Judge Keller concurred in result only. The Court affirmed an opinion and order of the circuit court affirming an order of the Cabinet for Health and Family Services, which held the actions of a nursing home discharging appellant from its long-term care facility to be in compliance with federal and state law. The Court first held that 900 KAR 2:050 § 2, which deals with transfer and discharge rights from long-term care facilities, defined by KRS 216.510(1), and the applicable portion of the Centers for Medicare and Medicaid Services State Operations Manual revealed no requirement that an appeal be heard regarding a denial of Medicaid benefits prior to the discharge of a patient for nonpayment. Appellant filed two applications for Medicaid benefits, both which were denied, and subsequently did not pay for her care. Therefore, the ALJ did not err by finding the nursing home could discharge her for nonpayment. The Court next held that the ALJ did not err by finding that the nursing home notified of appellant of her discharge and transfer from the facility by sending notice to her daughter. Based on the plain language of the financial agreement, the daughter was listed as the person to whom all correspondence and billing statements should be mailed. The Court finally held the nursing home did not fail to comply with 900 KAR 2:050 § 2 by failing to provide sufficient preparation and orientation on discharge from the facility.

B. Professional Home Health Care Agency, Inc. v. Commonwealth, Cabinet for Health and Family Services

2009-CA-001846 6/10/11 2011 WL 2548630

Opinion by Judge Wine; Judge VanMeter and Senior Judge Shake concurred. The Court vacated and remanded an opinion and order of the circuit court remanding a Certificate of Need (CON) application for an additional hearing. The Court held that the circuit court erred in limiting the scope of remand to the need numbers in existence at the time of the hearing approving the application for a CON. The Court held that to restrict the numbers on remand to the incorrect numbers utilized at the hearing would not effectuate justice. In addition, the language of the applicable regulations required the use of the latest numbers available at the time of a decision. Moreover, the State Health Plan required the use of the latest numbers available at the time of a decision.

IX. TORTS

A. Bailey v. GRW Engineers, Inc.

2009-CA-002140 6/24/11 2011 WL 2496216

Opinion by Judge Dixon; Judges Acree and Keller concurred. The Court reversed and remanded an order dismissing appellant’s claims for defamation, libel and tortious interference with business relations. The Court held that the trial court erred in dismissing the action after finding that appellee was entitled to absolute immunity for statements it made in a letter to a city mayor related to appellant’s qualifications and references as low bidder on a city project. The Court held that the legislative immunity afforded by caselaw and statute was not only limited to actual members of a legislative body but also only to statements made while acting within the scope of the duties imposed upon them by statute. Appellee was

not a member of the city council and had no duties imposed upon it by statute, therefore it was not entitled to legislative immunity. The Court also rejected appellee’s argument that the statements were comparable to statements made by witnesses in judicial proceedings entitling it to judicial immunity.

B. Dennis v. Fulkerson

2009-CA-001367 6/24/11 2011 WL 2496204

Opinion by Judge Wine; Judge VanMeter concurred; Judge Thompson concurred in part and dissented in part. On direct appeal, the Court affirmed an order of the circuit court denying appellant’s motion for a new trial in his medical negligence case and on cross-appeal, reversed and remanded the circuit court’s denial of the cross-appellant’s CR 59.05 motion to alter, amend or vacate the judgment. The Court first held that the jury award, which awarded past medical expenses but nothing for pain and suffering and lost wages after an emergency room doctor misdiagnosed appellant’s appendicitis, was adequate. While the jury could have reached a different conclusion, its conclusion with respect to pain and suffering and lost wages was nonetheless supported by evidence that appellant’s appendix may have perforated 12 to 24 hours before he ever presented to the emergency room and that even if he had not been misdiagnosed, the more invasive surgery may have been necessary. Further, the jury was free to return a $0 award for lost wages when appellant was unemployed at the time of the medical negligence. On the doctor’s cross-appeal, the Court held that the trial court erred when it failed to reduce the amount of judgment to the extent that the bill was written off by the hospital.

C. LaMarre v. Fort Mitchell Country Club

2010-CA-000813 6/24/11 2011 WL 2496242 Opinion by Senior Judge Shake; Judges Lambert and Stumbo concurred. The Court reversed an order of the circuit court granting summary judgment to the appellee country club on appellants’ claims that the club had acted negligently by illegally serving alcohol to the driver of a golf cart, resulting in permanent injury to a passenger. The Court held that the circuit court erred in granting summary judgment to the club based on KRS 413.241, the Dram Shop Act. The club’s distribution of package alcohol in direct violation of its special private club license under KRS 243.270, which only permitted the distribution of retail alcoholic drinks, excepted the club from the protections of the Dram Shop Act. The Court also held that even if the Club had not acted in direct contravention of its license, summary judgment was still inappropriate because there were genuine issues of material fact as to whether the club employees knew or should have known that the driver was intoxicated when they continued to serve him alcohol.

D. Lucas v. Gateway Community Services Organization, Inc.

2010-CA-001033 6/24/11 2011 WL 2508193

Opinion by Judge Lambert; Judges Nickell and Wine concurred. The Court affirmed a summary judgment entered in favor of appellees on appellant’s claim for damages for negligent maintenance and construction of a parking lot and

failure to maintain premises in a safe and hazard-free condition after she was injured in a fall. The Court held that, based on appellant’s own testimony, summary judgment was proper and the circuit court properly found that there were no disputed issues of material fact concerning the open and obvious condition of the parking lot. The Court then held that Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010), did not apply to alter the result because appellant’s own testimony showed that she was not distracted so as to make her injury foreseeable.

E. Shelton v. Kentucky Easter Seals Society, Inc.

2009-CA-000945 6/24/11 WL Citation Not Yet Available

Opinion by Judge Wine; Judges Acree and VanMeter concurred. The Court affirmed an order of the circuit court granting summary judgment in favor of appellee on appellant’s claims for injuries she received when her foot became entangled in wires at her husband’s hospital bedside. The Court held that the recent opinion of Kentucky River Med. Ctr. v. McIntosh, 319 S.W.3d 385 (Ky. 2010), did not abrogate the open and obvious doctrine in Kentucky and that the activities and circumstances surrounding McIntosh were distinguishable because there was no evidence that appellant was distracted, or made to forget the hazard, as she approached her husband’s bed to kiss him goodbye. Further, the evidence did not show that appellant was forced to encounter the hazard merely because she was unable to approach the bed on the other side because of the bed’s proximity to the wall.

F. The Estate of Judith Burton v. The Trover Clinic Foundation, Inc.

2009-CA-001595 6/10/11 2011 WL 6816338

Opinion by Judge Caperton; Judge Clayton concurred; Judge Acree concurred by separate opinion. The Court affirmed in part and reversed and remanded in part a judgment entered pursuant to a jury verdict finding in favor of a medical clinic and doctor on the appellant estate’s claims that the doctor misread CT scans and as a result the deceased’s lung cancer went undiagnosed. The Court first recognized the tort of negligent credentialing and set out the elements of the tort. On the direct appeal, the Court then held that, pursuant to CR 42.02, the trial court did not abuse its discretion in bifurcating the proceedings for medical negligence from those for negligent credentialing. The procedure did not violate KRS 411.186. The estate was free to pursue punitive damages and introduce evidence to support said damages in the first and second phase of the trial. Further, while the estate should have been permitted to conduct a full and complete voir dire concerning both phases of the trial, any error was harmless because the jury did not find appellees to be negligent during the first phase of the trial and the second phase had not yet been conducted. The Court next held that the trial court did not abuse its discretion in excluding peer review reports and minutes seeking to establish the doctor’s habit of reading radiological films at a dangerously fast pace when the reports and minutes were not verbatim, the meetings were not recorded and the statements contained in the minutes could not be attributed to any particular person. The Court next held that the trial court did not abuse its

discretion in determining that members of the peer review committee were not qualified to express expert opinions because their opinions would be based on radiological practices and standards, the very expertise of which they had no independent knowledge. The Court next held that because the estate failed to revive a fraud claim against the doctor, the argument presented related to the fraud claim was not preserved for the Court’s review. The Court next held that the trial court committed prejudicial error by depriving the estate of the right to cross-examine the doctor regarding the suspension of his medical license. Although post-treatment of the deceased, the suspension was not a collateral matter when it was close in time to the deceased’s misread CT scans and relevant to the doctor’s qualifications as an expert witness. The Court finally held that the trial court did not improperly prohibit the estate from cross-examining a witness who made a statement to the peer review committee when a hearing revealed that the peer review secretary could not attribute the statement directly to the witness. On the cross-appeal the Court first held that the trial court did not err in admitting habit evidence in the form of testimony regarding the doctor’s workload and speed of film interpretation. The testimony of two physicians and four employees, along with the doctor’s own testimony, was sufficient to establish a habit of the doctor and any question as to the timeliness of the evidence bore on the weight, not to its admissibility. Further, the witnesses had sufficient personal knowledge. The Court then held that the trial court did not abuse its discretion in denying a motion for a change of venue, given the information presented to the trial court concerning pretrial publicity.

X. WILLS AND ESTATES

A. Humphrey v. Blackford

2009-CA-001733 6/24/11 2011 WL 2496214

Opinion by Senior Judge Shake; Judges Nickell and VanMeter concurred. The Court affirmed a summary judgment entered by the circuit court in favor of appellees on their petition for a declaration of rights and to quiet title to real property. The Court first held that the circuit court properly granted summary judgment to appellees because the appellant spouse of the deceased spouse relinquished any dower interest to which she may have been entitled when she executed a deed of conveyance for the property to be held in trust, in exchange for which she received a life estate. The Court also held that there were no genuine issues of material fact as to whether appellant intended to relinquish her dower interest when the terms of the deed of conveyance established her intent to convey her interest in exchange for the life estate.

XI. ZONING

A. Hudman v. Terry

2009-CA-001510 6/24/11 2011 WL 2496212

Opinion by Judge Acree; Judge Nickell and Senior Judge Shake. The Court affirmed an order of the circuit court reversing a board of zoning and adjustment decision to grant a conditional use permit. In the direct appeal, the Court held that based upon the correct application of the zoning ordinances to the uncontested

facts, the circuit court correctly determined that the proposed use of an outbuilding as a machine and welding shop did not constitute an agricultural home occupation. In the cross-appeal, the Court held that the circuit court properly rejected the contention that the property constituted two separate tracts when the deed evinced the parties’ intent to consolidate two tracts to create a single plot of land.

May 2011 Kentucky Court of Appeals Published Decisions - Digests with links as prepared by the AOC

KENTUCKY COURT OF APPEALS PUBLISHED OPINIONS

MAY 2011

I. ADMINISTRATIVE LAW

A. Adams v. Meko

2010-CA-001410 5/27/2011 2011 WL 2078626

Opinion by Senior Judge Lambert; Chief Judge Taylor and Judge Stumbo concurred. The Court affirmed a judgment of the circuit court dismissing appellant’s petition for declaration of rights, challenging the imposition of penalties resulting from a prison disciplinary proceeding. The Court first held that appellant was not denied procedural due process when his requested witnesses were rejected by the adjustment hearing officer. CPP 15.6(II)(C)(5)(a)(2) required that witnesses be identified to the committee or officer not less than 24 hours prior to the hearing. Appellant’s failure to do so, allowed the hearing officer to decline the request. Even so, any testimony from the witnesses was of dubious value, as one of the witnesses was not involved in any of the events leading to the disciplinary charge and the other had already given a handwritten, signed statement about the incident. The Court then held that the evidence submitted at the hearing was sufficient to satisfy the “some evidence” standard.

B. Givens v. Commonwealth, Cabinet for Health and Family Services

2010-CA-000280 4/8/2011 2011 WL 1330749 DR Pending

Opinion by Judge Moore; Judge Combs and Senior Judge Isaac concurred. The Court affirmed an order of the circuit court dismissing appellant’s petition for review and affirming a decision of the Cabinet for Health and Family services substantiating appellant’s neglect of a foster child and placing appellant’s name on the central registry of those who had abused or neglected children. The Court first held that appellant’s statement that she objected to the Cabinet’s order was not an exception capable of preserving an issue for review because it did not specify any concrete or particular error. The Court also held that there was no separation of powers violation by the Supreme Court’s defining of the term “exceptions” within the context of KRS 13B administrative proceedings. When the General Assembly chose not to define “exceptions” when it enacted KRS 13B et seq., it could be presumed that the General Assembly intended for the courts to treat the term the same way the court had always treated the term. The Court also held that appellant was provided with adequate notice of her exception rights; that appellant’s failure to file exceptions left the trial court with no issues for its consideration; and that whether the hearing officer acted fraudulently was irrelevant to appellant’s disagreements with and objections to the rulings. The Court finally held that circuit court was entitled to disregard appellant’s argument that placing her name

on the central registry was cruel and unusual punishment. Appellant could not invoke CR 59.05 to raise arguments and introduce evidence that could and should have been presented during the proceedings before entry of the judgment.

II. CIVIL PROCEDURE

A. Biggs v. Eaton Sales, Inc.

2010-CA-000639 5/20/2011 2011 WL 1901793 DR Pending

Opinion by Judge Clayton; Judges Combs and Wine concurred. The Court affirmed orders of the circuit court related to an individual appellant’s complaint for negligence after horses left in appellee’s care developed strangles. The Court held that appellant’s failure to name the corporate owner of the horses as a party plaintiff within the statute of limitations period did not result from a “mistake in identity” of the real party in interest. Therefore, under a strict interpretation of CR 15.03, the individual appellant and the trustee in bankruptcy for the corporate owner could not amend the original complaint. The Court also held that summary judgment was appropriate because there were no genuine issues of material fact.

III. CRIMINAL LAW

A. Carter v. Commonwealth

2009-CA-000800 5/6/2011 2011 WL 1706517 DR Pending

Opinion by Judge Keller; Judges Nickell and Stumbo concurred. The Court affirmed an order of the circuit court denying appellant’s motion to suppress information which was obtained by a police officer from records in the Kentucky All-Schedule Prescription Electronic Reporting System (KASPER). The Court held that the trial court did not err in denying the motion to suppress. In reaching that conclusion, the Court held that, based on the holding in Williams v. Commonwealth, 213 S.W.3d 671 (Ky. 2006), appellant had no expectation that her KASPER prescription records were private or subject to Fourth Amendment protection from warrantless search and seizure. The Court then held that the officer had sufficient justification under KRS 218A.202 to request the records. Because the records were not subject to Fourth Amendment protection, the officer was not required to articulate a reason sufficient to meet Fourth Amendment requirements. The testimony that he received information from another detective and someone in a physician’s office was sufficient to establish he was engaged in a bona fide specific investigation.

B. Howard v. Commonwealth

2009-CA-002399 5/13/2011 2011 WL 1811688 DR Pending

Opinion by Judge Clayton; Judges Combs and Wine concurred. The Court affirmed an order of the trial court denying appellant’s motion to suppress evidence obtained pursuant to a search warrant. The Court held that the trial court correctly concluded that, under the totality of the circumstances, there was probable cause for the issuance of the search warrant. Following the holding in

Commonwealth v. Pride, 302 S.W.2d 43 (Ky. 2010), a warrantless search standard of review was not applicable to the search conducted pursuant to a warrant. While the anonymous tips set forth in the affidavit were not alone sufficient probable cause for the issuance of the warrant, the evidence found in a trash pull, when added to the anonymous tips, established probable cause to issue the search warrant. The detective was not required to have the suspected marijuana found in the trash cans tested because, as a trained police officer, he had the necessary expertise to determine the substance was marijuana.

C. Jacobi v. Commonwealth

2009-CA-001572 5/6/2011 2011 WL 1706528 DR Pending

Opinion by Senior Judge Isaac; Judges Clayton and Nickell concurred. The Court affirmed in part, reversed in part and remanded an order of the circuit court denying appellant’s motion for post-conviction relief filed pursuant to RCr 11.42 and CR 60.02. The Court first held that appellant’s failure to raise the issues of a defective indictment, an invalid indictment waiver and invalid guilty plea in his previously filed motions for post-conviction relief, precluded review of those claims. The Court then held that the factors relied upon in Padilla v. Kentucky, ___U.S.___, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), in the deportation context, applied equally, if not more strongly, in the context of parole eligibility. Therefore, trial counsel’s gross mis-advice or non-advice concerning parole eligibility may amount to ineffective assistance of counsel worthy of post-conviction relief. The Court remanded with instructions for the circuit court to hold an evidentiary hearing on appellant’s claim concerning parole eligibility.

D. Partin v. Commonwealth

2008-CA-002360 8/27/2010 2010 WL 3360319 Released for Publication

Opinion by Judge VanMeter; Judge Dixon and Senior Judge Lambert concurred. The Court affirmed an order of the circuit court denying appellant’s motion for post-conviction relief after finding that it was untimely filed and that neither KRS 422.285 nor KRS 31.185 applied to allow for funding of DNA testing of hair evidence presented in appellant’s trial. The Court held that the trial court did not abuse its discretion in denying appellant’s motion for CR 60.02 relief. In doing so, the Court first held that because appellant was not sentenced to death, he was not entitled to DNA testing and analysis per KRS 422.285(1). The Court then distinguished the holding in Bedingfield v. Commonwealth, 260 S.W.3d 805 (Ky. 2008), holding that even if DNA analysis excluded the victim as the source of the hair found in appellant’s trash or a third person’s DNA showed up among the evidence of the crime scene, no testimonial inconsistencies existed which otherwise would cast doubt on the jury’s verdict. Even excluding the hair from evidence would not create the inference that appellant would not have, with reasonable certainty, been found not guilty at trial.

IV. ELECTIONS

A. Grow Trigg, Inc. v. Trigg County/Judge Executive

2010-CA-000269 5/13/2011 2011 WL 1811914

Opinion by Judge Combs; Judges Thompson and VanMeter concurred. The Court reversed a declaratory judgment of the circuit court permitting a county precinct to hold a local option (wet/dry) election within three years after the county held an election to allow the sale of alcoholic beverages. The Court held that Campbell v. Brewer, 884 S.W.2d 638 (Ky. 1994), had been superseded by the 1998 legislative amendment to KRS 241.010. As amended, KRS 241.030, dictated a three-year prohibition for holding a local option election in the same overall territory - precincts notwithstanding. Therefore, the trial court erred in permitting the county precinct to hold the election.

V. EMPLOYMENT

A. Grimes v. Kentucky Unemployment Insurance Commission

2010-CA-000896 5/6/2011 2011 WL 170677

Opinion by Judge Wine; Chief Judge Taylor and Judge Moore concurred. The Court affirmed an order of the circuit court dismissing appellant’s appeal from a decision of the Kentucky Unemployment Insurance Commission to take no action on her motion to reopen a claim for unemployment benefits. The Court held that the circuit court properly dismissed the appeal. In reaching that holding, the Court held that, pursuant to KRS 341.450(1), appellant could not appeal the original denial of her application for unemployment benefits after 20 days from the date of the Commission’s decision. In her original attempt to appeal, she failed to follow the jurisdictional prerequisites for bringing an appeal and therefore, the decision became final by operation KRS 341.440(3). The Court then held that there was no statutory or administrative procedure to reopen the final order denying unemployment benefits. Moreover, the decision to take no action, which operated as a denial of the motion to reopen, was not appealable under KRS 341.450(1).

B. Wells v. The City of Bowling Green

2010-CA-001232 4/15/2011 2011 WL 1441872 DR Pending

Opinion by Judge Nickell; Judge Dixon and Senior Judge Shake concurred. The Court affirmed a summary judgment in favor of the appellee city on appellant’s claims of age discrimination and fraud. The Court held that the summary judgment was properly granted to the city because appellant never applied for the permanent position of police chief. Further, appellant admitted that he chose not to apply because he was busy focusing on his doctoral studies, not because he had been convinced that he was too old to apply or that he was ineligible to apply because he accepted the position of interim chief. The Court finally held that appellant could not prevail on his fraud claim when he was told the person chosen as interim chief would not be considered for the permanent position and he was not. Further, KRS 61.848(2) established the procedure and timeline to be followed in filing suit, which were not followed by appellant.

VI. FAMILY LAW

A. Commonwealth, Cabinet for Health and Family Services v. Garber

2010-CA-001226 5/6/2011 2011 WL 1706792

Opinion by Judge VanMeter; Judges Combs and Keller concurred. In an opinion and order, the Court granted petitions for writs of prohibition and mandamus and prohibited the family courts from enforcing orders in domestic violence proceedings directing the Cabinet for Health and Family Services to investigate certain individuals for the risk of dependency, neglect and abuse. The Court held that the family courts exceeded their jurisdiction in ordering an investigation. Section 28 of the Kentucky Constitution precluded the family courts from exercising the executive powers given to the Cabinet in KRS 620.040 to determine the necessity of and to initiate an investigation.

VII. PROPERTY

A. Commonwealth, Transportation Cabinet, Department of Highways v. Blackburn

2008-CA-001455 7/9/2010 2010 WL 2696272 Released for publication

Opinion by Judge Thompson; Judges Acree and Caperton concurred. The Court affirmed in part, reversed in part and remanded a judgment of the circuit court reversing a decision of the Transportation Cabinet regarding replacement housing payments to appellants after appellants were notified of the Cabinet’s intent to take appellants’ property pursuant to the Kentucky Eminent Domain Act, KRS 416.540. The Court first held that the trial court did not err by not dismissing appellants’ petition for review as untimely. Applying the literal meaning of Section 31 of 600 KAR 3:010, the appeal period began to run on the date of the written notice of the actual award, not the date when appellants were notified of their initial replacement housing payment eligibility. The Court then held that the trial court erred by determining the method by which the replacement housing payment should be calculated. Section 19(5) of 600 KAR 3:010 gave the Cabinet the authority to determine the appropriate replacement housing payment using either of two methods. Therefore, the trial court could not choose which calculation to apply. However, the Court also held that the trial court correctly determined that a three-year-old valuation could not be offered by the Cabinet without proof that the valuation reflected current market values.

B. Stewart v. Slusher

2009-CA-001297 5/20/2011 2011 WL 1900162

Opinion by Judge Acree; Judges Dixon and Stumbo concurred. The Court affirmed an order of the circuit court granting summary judgment in favor of appellees for damages and interest resulting from appellants’ lease to a third party of mineral interests in land they previously agreed to convey to appellees in an option contract. The Court also affirmed the circuit court’s denial of appellants’ motion for summary judgment to collect the option price. The Court

first held that the circuit court properly concluded that appellants breached the special warranty deed when they leased the mineral rights to the property, which was an encumbrance upon the property. However, the Court also concluded that appellants were liable for committing waste on the property equitably owned by appellees and that appellants breached the option contract by failing to convey the property as described in the option contract. The Court rejected appellants’ argument that the eventual conveyance by special warranty deed of the remainder of the property, or the merger doctrine, prohibited appellees from claiming a right to recover based on the mineral lease. The Court also rejected appellants’ arguments that the doctrines of res judicata and issue preclusion required reversal. The Court then held that awarding appellees the amount of the advance royalty payment, which would not have exceeded the value of the coal removed, was a proper measure of damages. The Court also held that the award of prejudgment interest from a date after the date marking appellees acquisition of their equitable interest in the coal was the correct one on which prejudgment interest began to accrue. The Court finally held that the circuit court properly denied appellants’ claim for the amount they returned to appellees, which was given in consideration for the option contract, after appellants attempted to repudiate the option contract. Appellants could not benefit from their breach of the option contract, thwarting any effort by appellees to exercise the option, and then claim that the option was not timely exercised.

VIII. WORKERS' COMPENSATION

A. Schmidt v. South Central Bell

2010-CA-000986 5/13/2011 2011 WL 1843056

Opinion by Judge Lambert; Judges Moore and Nickell concurred. The Court reversed and remanded a decision of the Workers’ Compensation Board affirming a decision of the ALJ finding that an employer was no longer responsible for the payment of future medical payments. The finding was based upon the $3,500.00 cap on the amount of medical expenses found in the version of KRS 342.020 in effect at the time of the worker’s injury. The Court held that the amendments in 1964 and 1972 to KRS 342.020, removing the cap on future medical expenses, represented a remedial, procedural change as described in Kentucky Insurance Guaranty Association v. Conco, Inc., 882 S.W.2d 129 (Ky. App. 1994). Therefore, the amendments applied to the worker and the Board misconstrued the controlling statutes and law in upholding the decision that the employer was no longer responsible for payment of the future medical expenses.

KENTUCKY COURT OF APPEALS PUBLISHED OPINION SUMMARIES APRIL 2011

KENTUCKY COURT OF APPEALS PUBLISHED OPINION SUMMARIES

APRIL 2011

I. APPEALS

A. Matthews v. Viking Energy Holdings, LLC

2010-CA-000048 4/8/2011 2011 WL 1327434

Opinion by Judge Acree; Caperton and Clayton concurred. In an opinion and order the Court dismissed an appeal taken more than 30 days after entry of a judgment quieting title to a buried gas pipeline easement in favor of appellee. The Court held that appellants’ failure to state even one ground to support their CR 59.05 motion rendered the motion incomplete and therefore, invalid under CR 7.02(1). Their failure to supplement the motion within the 10-day limit rendered the motion untimely or dilatory, and therefore, the circuit court lacked jurisdiction to entertain it. Because the untimely motion did not effectuate the tolling provision of CR 73.02(1)(e), the notice of appeal, filed more than 30 days after the judgment, was untimely.

II. ARBITRATION

A. Kindred Nursing Centers Limited Partnership v. Brown

2010-CA-000286 4/1/2011 2011 WL 1196760

Opinion by Judge Caperton; Judges Combs and Keller concurred. The Court affirmed an order of the circuit court denying appellants’ motion to dismiss or, in the alternative, to stay an action, pending arbitration. The action was brought by a guardian for injuries her incapacitated son received while a patient in appellants’ nursing home. The alternative dispute resolution agreement at issue was signed by the mother before she was appointed legal guardian for her son. The Court first held that while Kentucky law generally favors the enforcement of arbitration agreements, appellants had the burden of establishing the existence of an arbitration agreement that conformed to statutory requirements. The Court then held that the guardian was not estopped from denying her authority to execute the agreement, which she signed before she became the legal guardian of her son. Regardless of the guardian’s prior actions, once appointed guardian, her actions were guided by her fiduciary duties. Appellants could not reasonably rely upon the mother’s signature alone without an explanation of her legal authority to bind her son. Further, the mother’s assertions as to what she needed to make decisions for her son was of little legal import when appellants accepted the ill-advised legal effect of the assertions. The Court also held that the guardian was not estopped from avoiding the agreement under the Federal Arbitration Act because the authority of the mother to sign it was a valid ground to revoke or defend. The Court next held that the trial court did not err in finding the absence of either actual or apparent authority by the mother to act on behalf of her son. The Court finally held that that the guardian could not ratify the execution of the ADR agreement by her post-guardianship conduct. Ratification or adoption of a prior agreement entered into by the mother for the son required ratification or adoption by the son. Because the son was incapable of taking any action, he could not be found to have adopted or ratified the agreement.

III. ATTORNEY AND CLIENT

A. Poindexter v. Commonwealth

2010-CA-000811 4/15/2011 2011 WL 1434875

Opinion by Judge Dixon; Judge Caperton and Senior Judge Lambert concurred. The court affirmed an order of the circuit court finding the appellant attorney in contempt of court for failing to comply with a court order requiring him to appear at an arraignment. The Court held that the trial court did not abuse its discretion in exercising its contempt powers when the evidence established that appellant knew he had a conflict with the arraignment date at the time he filed his entry of appearance. When the court rejected an agreed order rescheduling the arraignment date, appellant was on notice he had been ordered to appear at the arraignment. He did not attempt to contact the court to explain the circumstances; instead, he filed a notice of non-representation the day before the court appearance. He did not file a motion requesting permission from the court to withdraw and he failed to appear for the arraignment in contravention of the court’s order. The 29th Judicial Circuit Rules of Procedure clearly contemplated that withdrawal required permission from the Court and SCR 3.130 required an attorney to continue representation when ordered by a court.

IV. ATTORNEY FEES

A. Weinberg v. Gharai

2010-CA-001134 4/15/2011 2011 WL 144186

Opinion by Judge Caperton; Chief Judge Taylor and Judge Wine concurred. The Court affirmed an opinion and order of the circuit court denying appellant’s request for attorney fees and dismissing his attorney’s lien in connection with his representation of appellee. The Court held that trial court did not err in denying the request for attorney fees. A settlement was reached in the underlying case after appellant attempted to renegotiate the contingency fee contract to prosecute an appeal and appellee hired new counsel to represent her on appeal. The contingency contract as drafted was clear that it did not provide for an additional retainer on appeal from a judgment and did not distinguish between a trial judgment or a summary judgment. Further, even if appellant’s services under the contract were completed upon entry of the summary judgment, appellant knew or should have known that the attorney-client agreement provided that he only collected attorney fees if he settled or prevailed on the merits. Because no monies had been recovered when the lien for fees was filed, no contingency fees were owed. The Court also held that appellee did not waive her right to object to the attorney’s lien when by not immediately objecting when the attorney’s lien was filed because she timely filed a request for dismissal after appellant filed a motion for a hearing on the lien. The Court also held that appellee was not equitably estopped from objecting to the lien when a letter of agreement specifically provided that if the fee issue could not be settled, then either arbitration or a court order would be required to resolve it. The Court finally held that appellant was not entitled to a fee on the theory of quantum meruit. Appellant refused to honor the contract as it was written and insisted upon renegotiation of its terms.

Therefore, appellee had little choice but to retain new counsel to represent her on appeal.

V. AUTOMOBILES

A. Hodgkiss-Warrick v. State Farm Mutual Automobile Insurance Company

2010-CA-000603 4/8/2011 2011 WL 1327644

Opinion by Judge Caperton; Judges Thompson and Senior Judge Lambert concurred. The Court reversed and remanded a summary judgment in favor of the appellee automobile insurance company on appellant’s claim seeking underinsured motorist coverage under both her policy and her husband’s policy. The Court held that in light of the Kentucky Supreme Court’s holdings in Williams v. State Farm Mut. Auto. Ins. Co., 255 S.W.3d 913 (Ky. 2008), and State Farm Mut. Auto. Ins. Co. v. Marley, 151 S.W.3d 33 (Ky. 2004), public policy in Kentucky disfavored the application of the regular-use exclusion when the policy holder had no real control or ability to obtain greater liability coverage on the vehicle involved in the accident. As such, appellant was entitled to UIM coverage under her policy and the trial court erred in granting summary judgment to the insurer.

VI. CONTRACTS

A. Davis v. Davis

2009-CA-002127 4/01/2011 2011 WL 1196720

Opinion by Judge Lambert; Judges Nickell and Wine concurred. The Court affirmed a judgment of the circuit court in favor of the appellee business owners awarding them damages as well as several items of equipment from their blacktopping business. Appellees’ claim sought damages from their son for taking business funds for his personal use, the son’s failure to repay money advanced related to the purchase and construction of his home, and for interference with his parents’ business. The son counter-claimed alleging he was a partner and/or had an ownership interest in the business and that he was entitled to a share of all revenue and income, as well as the equipment. The Court first held that the trial court did not err in awarding the appellees a judgment for the sums they paid for appellant’s house and land. The Court extended the holding in Rider v. Combs, 256 S.W.2d 749 (Ky. 1953), to apply to cases involving real estate, and held that the trial court did not err in finding the existence of an implied contract requiring repayment of the amount appellees paid for appellant’s real estate and for improvements to the real estate. The Court also held KRS 371.010(7) did not act to bar enforcement of the agreement when the parties would have contemplated performance of the contract within one year. Further KRS 371.010(8) or (9) did not bar enforcement because the agreement did not provide for the commission or compensation for the sale of real estate, nor did it provide for the establishment of a business enterprise. The Court also held that the trial court was not required to infer that the funds were intended as a gift from the parents to their son when the evidence established that the parents did not intend to make a gift and rebutted any presumption the funds were a gift. The Court next held that the trial court did not err in finding that appellant had no ownership interest in the parents’ business or business equipment. While the father had discussed giving the company to the son when he retired, the transfer never took place and there was no evidence to establish appellant was ever an owner or even a partial owner of the business, nor was there any record or legal title to establish appellant had any ownership interest in the equipment. The Court next held that the trial court did not err in awarding to appellees the amount appellant misappropriated from the business. While the record showed that appellant’s personal expenses were generally paid with business funds, he was not an owner of the business, nor was he in a position to unilaterally keep payments, or portions thereof, made to the business. The Court finally held that the trial court did not err when it found that appellant tortiously interfered with business contracts and required him to repay the profit he received from the contracts. Even if he was not restricted by a covenant not to compete, he owed a duty of loyalty to appellees, which he breached when he used his knowledge of the business, as well as the business equipment and supplies to procure and complete contracts for his own separate company.

B. Smith v. Bethlehem Sand & Gravel Company, LLC

2009-CA-000913 4/22/2011 2011 WL 1515180

Opinion by Judge Moore; Chief Judge Taylor and Judge Wine concurred. The Court affirmed an order of the circuit court upholding a guaranty agreement and granting summary judgment to appellee on its action to collect the balance of a promissory note signed by the appellant president and chief executive officer on behalf of his company. The Court first held that the circuit court did not err when it upheld the validity of the guaranty agreement within the context of KRS 371.065. The guaranty agreement effectively referenced the instrument it guaranteed as required by the statute. There was no reason to subject the guaranty agreement to the requirement that it specify an effective termination date. The Court next held that the circuit court did not err in finding that appellant received consideration for the note when the guaranty agreement recited that it was designed to induce appellee to contract with appellant, it referenced the promissory note, and appellant signed both of the documents for exactly the same purpose. The Court then held that the circuit court correctly determined that appellee was not equitably estopped from enforcing the guaranty agreement when it chose not to participate in the company’s bankruptcy proceedings. Under the clear terms of the guaranty, appellee had no duty to take action against the company in bankruptcy court or otherwise, nor could appellant rely on the proceedings to settle the outstanding claims. Further, appellant failed to show that he changed his position in reliance of an act or omission of appellee, which was a required element of equitable estoppel.

VII. CRIMINAL LAW

A. Commonwealth v. Bushart

2010-CA-000290 4/8/2011 2011 WL 1330366

Opinion by Judge Lambert; Judge Keller and Senior Judge Shake concurred. The Court reversed and remanded an order of the circuit court dismissing a reckless homicide indictment after finding that there was no probable cause to believe that appellee’s shooting of the victim was not justified as self-defense. The Court held that the trial court committed palpable error when it considered an affidavit of the defendant, serving to rebut the circumstantial evidence, when making its determination as to whether probable cause existed. Consideration of the affidavit, outside the police reports and interviews, resulted in a mini-trial, which was just the type of potential abuse prohibited by Rodgers v. Commonwealth, 285 S.W.3d 740 (Ky. 2009).

B. Commonwealth v. Garrison

2010-CA-000042 4/15/2011 2011 WL 1434678

Opinion by Judge Nickell; Judge Clayton and Senior Judge Isaac concurred. The Court reversed and remanded an order granting appellee’s motion to suppress evidence seized during his arrest and dismissing all charges against him. The Court first held that the authority to dismiss the criminal indictment rested solely with the Commonwealth and therefore, the trial court abused its discretion in unilaterally dismissing the charges. The Court then held that the trial court erred in granting the motion to suppress evidence seized after appellee’s arrest. In reaching that conclusion, the Court held that under the totality of the circumstances, appellee was not under arrest at the moment he was placed in handcuffs during a dangerous felony stop to serve outstanding warrants on the passenger in the car appellee was driving. Appellee was seen leaving a residence known for illegal drug activity while accompanied by a wanted felon who was reputed to be armed and the police had a reasonable, articulable suspicion that criminal activity was afoot. Further, the slight intrusion was necessary for the safety of all parties as well as the general public, was reasonably related to the justification for the stop and was not unduly prolonged. The temporary detention was not tantamount to effectuating an arrest, even though appellee was placed in handcuffs. The Court also held that even if appellee’s detention was unlawful, when the officers personally observed him operating the vehicle prior to the stop, observed him to be under the influence, and further investigation revealed he was impaired, they obtained the right to arrest him for DUI. Accompanying that right was the right to conduct a search incident to an arrest. The existence of probable cause to effectuate the arrest constituted an intervening circumstance that outweighed any possible misconduct or error on the part of the officers.

C. Fegley v. Commonwealth

2009-CA-001898 4/1/2011 2011 WL 1196472

Opinion by Judge Dixon; Judge Moore and Senior Judge Isaac concurred. The Court affirmed in part, and reversed and remanded in part, an order of the circuit court denying appellant’s motion for post-conviction relief pursuant to RCr 11.42. The Court first held that the trial court did not err in finding that appellant was not denied effective assistance of counsel when trial counsel failed to object to the trial court’s preemptive finding that a BB gun was a deadly weapon. While trial counsel could have made an argument for reversal of existing law at the time of trial, counsel’s failure to anticipate a later change in the law did not equate to ineffective representation. The Court next held that counsels’ performance fell below the objective standard of reasonableness and was so prejudicial as to deprive appellant of a reasonable result when counsel failed to object to improper testimony offered by a probation and parole officer during the sentencing phase of trial that appellant’s maximum possible sentence was 120 years when, in fact, under KRS 532.110(1)(c), it was only 70 years. Both Robinson v. Commonwealth, 181 S.W.3d 30 (Ky. 2005) and Lawson v. Commonwealth, 85 S.W.3d 571 (Ky. 2002), dictated that appellant was entitled to a new sentencing phase. Had trial counsel objected to the testimony and/or closing argument by the prosecution asking the jury to fix a mid-point sentence, the jury would have likely reached a different sentencing verdict.

D. Frazier v. Commonwealth

2009-CA-000561 4/22/2011 2011 WL 1515173

Opinion by Judge VanMeter; Judge Dixon concurred; Senior Judge Lambert dissented by separate opinion. The Court affirmed in part, reversed in part and remanded a final judgment and sentence of imprisonment whereby appellant was adjudged guilty of various offenses. The Court first held that the trial court did not err in denying appellant’s motion to suppress evidence of the search of appellant’s person and vehicle, the resulting seizure from those searches and the fruits of the search and seizures. In reaching that conclusion the Court first held that given that appellant failed to signal while making a turn and a passenger tossed a bag of trash from the vehicle, the stop of appellant’s vehicle was appropriate. The Court next held that, under the totality of the circumstances, specifically appellant’s nervousness and failure to answer simple, unobtrusive questions, the request that appellant exit the vehicle was neither unreasonable nor outside the scope of the stop. Further, given appellant’s nervousness, failure to cooperate, failure to look the officers in the eyes and verbal belligerence once outside the vehicle, the trial court did not err in determining that the police appropriately ordered appellant from his vehicle and subsequently frisked him. The Court next held that although appellant had been arrested and placed in the police cruiser after the officers found marijuana as a result of the frisk, the fact that he was arrested for possession of marijuana was sufficient to establish the reasonable belief that additional evidence of that offense would be found in the vehicle - either more marijuana, additional drugs or drug paraphernalia. The Court also held that the trial court’s finding that appellant was competent to stand trial was supported by substantial evidence and was not clearly erroneous. The fact that appellant belittled the prosecution and jury, while making a spectacle of himself and the judicial process, was a reflection of his decision to represent himself, more than a reflection on his competency. The Court finally held appellant was entitled to a directed verdict on the littering charge. There was no evidence that the litter thrown from appellant’s car by a passenger was destructive or injurious, a requirement of KRS 512.070(1)(a) to create third-party liability. Because the jury instruction did not include this language, it was improper and therefore, the conviction and sentence must be reversed.

E. Ingram v. Commonwealth

2010-CA-000463 4/8/2011 2011 WL 1327629

Opinion by Judge Moore; Judge Combs and Senior Judge Isaac concurred. The Court reversed an order of the circuit court denying appellant’s motion for jail-time credit for the total number of days he was incarcerated for a separate twelve-month sentence for a misdemeanor conviction. The Court held that the circuit court erred when it denied appellant’s motion for jail-time credit. When the circuit court revoked appellant’s probation for the felony and ordered appellant to serve the resulting two-year sentence “concurrently with any sentence,” appellant was a confined prisoner serving the misdemeanor sentence. Therefore, pursuant to KRS 197.035(2), the starting date of appellant’s two-year sentence was the same as the starting date of his twelve-month sentence.

F. Jackson v. Commonwealth

2009-CA-001611 4/29/2011 2011 WL 1598719

Opinion by Judge Keller; Judges Caperton and Combs concurred. The Court affirmed a judgment convicting a father of first-degree sexual abuse of his daughter and a judgment convicting the child’s mother of tampering with a witness. The Court first held that the trial court did not err when it denied the father’s motion for a directed verdict of acquittal. The child’s testimony and the testimony by a nurse were more than a scintilla of evidence and supported the trial court’s determination that it was not unreasonable for a jury to find guilt. The Court next held that the trial court did not abuse its discretion in joining the father’s and mother’s trials. The evidence relevant to the tampering charge included the child’s testimony at the adjudication hearing wherein she stated what her father did was an “accident” and that her mother told her it was an accident. It also included the child’s testimony at trial wherein she stated that what her father did was not an accident. Because this evidence would have been admissible in both parents’ trials had they been separated, the father could not show prejudice in joinder. The Court next held that pursuant to KRE 802, the trial court erred in admitting hearsay statements the child made to a nurse, identifying the father as the perpetrator, because they were not necessary to treat or diagnose the child. However, in light of the child’s testimony, combined with all the other evidence presented, the error was harmless. The Court next held that the trial court did not err in failing to direct a verdict for the mother. Based on the child’s testimony, it was not unreasonable for a jury to conclude that the mother knowingly made a false statement to the child. The Court next held that the testimony of a social worker and the children’s foster mother about facts that occurred after the adjudication hearing were inadmissible under KRE 402 because it was irrelevant. However, the evidence was harmless in light of the other evidence. The Court also held that other testimony offered by the social worker and foster mother was irrelevant and the probative value was substantially outweighed by its prejudicial effect. However, because there was not a substantial possibility that the result of the trial would have been different, the unpreserved errors did not rise to the level of palpable error under RCr 10.26. The Court finally held that while under the law at the time appellants properly preserved the issue by making a motion to strike jurors for cause, the trial court did not abuse its discretion in refusing to remove three jurors - a juror whose granddaughter was sexually abused, a juror who attended church with the child, and a juror who worked with a peripheral witness - when they unequivocally stated they could fairly and impartially decide the case.

VIII. EMPLOYMENT

A. Burton v. Kentucky State Police

2010-CA-000292 4/1/2011 2011 WL 1196779

Opinion by Judge Caperton; Judge Combs and Senior Judge Lambert concurred. The Court affirmed a summary judgment in favor of appellees on appellant’s claim alleging hostile work environment, sexual harassment, constructive discharge and intentional infliction of emotional distress. The claim was brought after appellant resigned her employment with the Kentucky State Police and after her complaint was dismissed by the Kentucky Commission on Human Rights. The Court first held that the trial court properly concluded that appellees were entitled to summary judgment based on the doctrine of election of remedies. Appellant sought relief for the alleged violation of her civil rights from the KCHR and obtained a final determination, which she did not contest. Pursuant to KRS 344.270, the subsequent litigation in circuit court was barred. The Court also held that the trial court properly concluded that appellant failed to establish claims for sexual harassment, hostile work environment or IIED. Appellant’s treatment was not severe or pervasive enough to satisfy the standards articulated in Ammerman v. Board of Educ. of Nicholas County, 30 S.W.3d 793 (Ky. 2000), to establish a claim for sexual harassment and hostile work environment. Further, the conduct did not rise to the level of outrageous conduct required by Wilson v. Lowe’s Home Center, 75 S.W.3d 229 (Ky. App. 2001), to establish a claim for IIED.

IX. FAMILY LAW

A. Abdur-Rahman v. Peterson

2010-CA-001366 4/29/2011 2011 WL 1598761

Opinion by Judge Caperton; Judge Combs concurred; Judge Keller concurred in part and dissented in part. The Court reversed and remanded a trial court order amending a domestic violence order to include the parties’ minor child. The Court first held that the trial court did not abuse its discretion when it refused to hear the testimony of appellant’s instructor at Batterer’s Intervention. The testimony of appellant’s attendance and conduct in class was irrelevant to his conduct out of class. The Court then held that the trial court did abuse its discretion in refusing to hear testimony from appellant’s partner which would have been instrumental in appellant’s attempt to establish the time of the injuries to the child to support his contention that the child returned from appellee’s mother’s house with the injuries. The Court further held that this error was not harmless. The Court then held that the trial court did not abuse its discretion in refusing to allow testimony regarding appellee’s prior mental health history given the length of time that had passed and because there were no allegations of mental health issues concerning appellee’s unfitness to parent after the birth of the child. The Court finally held that any error regarding the medical findings of burns to the child was harmless. While it was true that the trial court could not determine the degree of burns without medical proof, the ruling focused on appellant’s lack of concern for the origin of the burns and his failure to seek medical treatment for what appeared to be severe burns.

B. Foster v. Fortner

2010-CA-001010 4/1/2011 2011 WL 1196885

Opinion by Judge Lambert; Judges Nickell and Wine concurred. The Court reversed a judgment of the circuit court registering a foreign order for child support arrearage against appellant and holding a prior judgment modifying child support entered in Kentucky to be void as a matter of law. The Court held that because the petition to register the foreign child support order/divorce decree was not filed until years after the Kentucky order modifying child support, the Kentucky court was free to modify the order, assuming it had jurisdiction otherwise to do so. The Court then held that pursuant to KRS 23A.110, the Kentucky court had subject matter jurisdiction over the matter and because appellee was served while she was in Kentucky, personal jurisdiction was established. The Court then held that appellee waived particular case jurisdiction by not challenging the order or contesting particular case jurisdiction at the time the motion to modify child support was filed. The Court finally held that appellant was impermissibly deprived of his property without due process of law when the arrearage the foreign court was asking Kentucky to enforce had not been reduced to any judgment found in the record.

C. McMullin v. McMullin

2010-CA-000843 4/22/2011 2011 WL 1515608

Opinion by Judge Wine; Judges Clayton and Combs concurred. The Court affirmed a post-dissolution qualified domestic relations order (QDRO), dividing appellant’s pension benefits with his ex-wife. The Court first held the provision of the parties’ settlement agreement dealing with the pension benefit was ambiguous as it was susceptible to more than one interpretation because the provision did not include whether the benefit was to be calculated from the date of the divorce decree or when the pension became payable. Therefore, it was necessary for the Court to determine the intent of the parties at the time of the divorce decree. The Court then held that because appellant intentionally introduced the ambiguity into the contract in order to secure appellee’s assent, the provision could not be construed in his favor. Therefore, the trial court did not err in construing the contract as requiring the calculation to be made from the time of appellant’s retirement. The Court finally held that while the trial court erred in applying the implied covenant of good faith and fair dealing when there was no allegation that appellant breached the contract, it was of little consequence because the provision was correctly construed against appellant on other grounds.

X. PROPERTY

A. Waldridge v. Homeservices of Kentucky, Inc.

2010-CA-000264 4/29/2011 2011 WL 1598738

Opinion by Judge Thompson; Senior Judge Lambert concurred; Judge Moore dissented by separate opinion. The Court reversed and remanded a summary judgment in favor of a real estate brokerage firm and its agent on appellants’ claims that the firm and agent failed to disclose material conditions relating to the sale of residential property and breach of fiduciary duties allegedly owed to the appellants as buyers of the property. The Court first held that the claim was not barred by the doctrine of res judicata arising from a prior administrative proceeding before the Kentucky Real Estate Commission (KREC). Because there was no litigation that would comport with due process of law at the KREC level, the order had no preclusive effect. The Court then held that while the firm and agent did not have a duty to inspect the property for defects, nor could they be held liable for negligent omissions or misrepresentations, as the seller’s real estate agent, they owed a duty to the buyer to not commit fraud by either misrepresenting a material fact or failing to disclose a material fact of which they had actual knowledge and of which the buyers were unaware. The firm’s agents had been involved in the sale of the property and may have had actual knowledge of the serious flooding, which caused damage to the home. Further, the sellers knew the house had flooded but failed to disclose the extent of the flooding and damage in the disclosure statement, which raised a question of fact as to whether the firm or agent knew the disclosure was false. Therefore, the trial court erred in granting summary judgment.

XI. TAXATION

A. City of Bowling Green, Kentucky v. Hotels.com, L.P.

2010-CA-000825 4/29/2011 2011 WL 1600505

Opinion by Judge Clayton; Judges Combs and Keller concurred. The Court affirmed an order of the circuit court dismissing the appellant city’s case on its claim that several online travel companies were required, under KRS 91A.390(1), to pay a tax on accommodations for hotel rooms located in the city. The Court held that that the enabling statute allowing counties within the Commonwealth to impose a transient room tax did not include online travel companies in the definition of those who have to pay transient taxes.

XII. TORTS

A. Aesthetics in Jewelry, Inc. v. Estate of Robinson S. Brown, Jr.

2009-CA-002056 4/8/2011 2011 WL 1327411

Opinion by Judge Caperton; Judges Combs and Keller concurred. The Court affirmed an order of the circuit court denying a motion for directed verdict in favor of an estate arising out of the sale of jewelry by appellants to the deceased. The Court also affirmed an order of the circuit court denying appellants’ motion for attorney fees under the Kentucky Consumer Protection Act, KRS 367.220. The Court first held that the trial court did not err in denying the estate’s motion for a directed verdict. There was no evidence that prior to the purchase of the jewelry, appellant intentionally or negligently made material representations to the deceased as to the value of the property. While there was evidence that appellant believed he could sell the jewelry to someone else for the amount paid and that he believed the MSRP to be $1 million, and that he advised the deceased of these opinions, ultimately the figures were opinions that did not amount to material misrepresentations, which the estate was required to prove in bringing its claims. The Court then held that the trial court did not abuse its discretion in denying the motion for attorney fees. While the attorney fee-shifting provisions in KRS 367.220 gave the court the authority to award attorney fees to a prevailing defendant, the trial court considered the facts and evidence and made a conclusion, well within its discretion, that the claim brought by the estate was not frivolous and was advanced in good faith and therefore, attorney fees were not warranted.

B. Goodin v. White

2009-CA-002261 4/15/2011 2011 WL 1434670

Opinion by Senior Judge Shake; Judges Lambert and Stumbo concurred. The Court affirmed a judgment of the circuit court entered upon a jury verdict in favor of a patient on her claims that her doctor was negligent and deviated from the standard of care in his treatment of her condition. The Court first held that the trial court did not err in denying the motion to admit a settlement agreement between the patient and the doctor’s insurer as an unfair Mary Carter agreement that created bias. The insurer’s continued presence at trial was not only because of the settlement agreement but also because the doctor never moved to dismiss his third-party action against the insurer. The record did not indicate that the patient or any of her witnesses changed their testimonies or made inconsistent statements after the settlement agreement was executed. Because the jury had been informed that the patient and insurer had settled, the jury was well aware of the position of the adversarial, as well as the non-adversarial parties. The Court next held that the patient and insurer did not receive additional preemptory strikes beyond those allowed by CR 47.03(1). The record indicated that although the patient and the insurer had discussed possible settlement, the settlement was not reduced to writing until jury selection was complete. Moreover, the parties’ interests were not aligned, nor were they co-parties, and the doctor’s indemnity claim proceeded against the insurer.

C. O'Bannon v. Allen

2010-CA-000695 4/1/2011 2011 WL 1196852

Opinion by Judge Keller; Judges Clayton and Senior Judge Isaac concurred. The Court affirmed a trial court order dismissing appellants’ wrongful death action against a doctor. The Court held that the trial court correctly determined that the county in which a patient died after overdosing on medication was not the proper venue for the claim but rather, the proper venue was the county where the patient sought treatment. The patient’s death was not the injury referred to in KRS 452.160(1). The statute describes venue as being where the injury was done, not where the damage was suffered. Further, pursuant to KRS 411.130, the entitlement to bring an action for wrongful death arises from the negligence or wrongful act of another inflicted on the decedent, not on the negligence or wrongful act inflicted on the estate or survivors of the decedent. The doctor’s duty arose when the patient sought treatment and any breach of that duty occurred in the county where the patient sought treatment. Therefore, the injury was “done” in that county.

D. Wilkerson v. Williams

2010-CA-000088 2/18/2011 2011 WL 559218 Ord. Pub. by S.Ct.

Opinion by Senior Judge Isaac; Chief Judge Taylor and Judge Dixon concurred. The Court affirmed an order of the circuit court denying appellants’ motion for a new trial on their claims that appellee had committed assault and negligent assault against appellant at a party hosted by appellee’s father. The Court first held that appellants’ designation of the order for a new trial as that from which the appeal was taken, as opposed to the final judgment dismissing the appeal, was harmless error. The Court then held that the trial court’s exclusion of testimony that appellee was drinking moonshine at the party, finding that the testimony was more prejudicial than probative, was fully in accord with KRE 403. The Court next held that the trial court did not err in denying the motion for a new trial on the basis that the jury failed to follow the instructions. There was no indication that the jury agreed to be bound by a quotient verdict and appellants’ speculation of what occurred in jury deliberations did not establish that the jury did not follow the instructions. The Court finally held that the trial court did not err in dismissing the father as a defendant. The Court declined to adopt social host liability to impose a duty on the father.

XIII. WORKERS' COMPENSATION

A. Gaines Gentry Thoroughbreds/Fayette Farms v. Mandujano

2010-CA-000663 4/29/2011 2011 WL 1648262

Opinion by Senior Judge Lambert; Judges Clayton and Combs concurred. The Court affirmed a decision of the Workers’ Compensation Board affirming an ALJ’s determination that a worker sustained compensable work-related injuries in an automobile accident during the course of his employment with a horse farm. The Court first held that the ALJ and Board correctly relied on the “dual purpose” doctrine in support of their conclusion that the worker’s injuries were compensable. The trip in question clearly qualified as a business trip because the employer acknowledged that if this worker had not traveled to New York, the employer would have sent another employee in a horse van to watch the horses during the trip. Even if the worker had already made arrangements to go to New York well before requesting or being offered the ride by appellant, the employer asked the worker to travel in the horse van with the farm’s horses to care for them on their way to New York and paid him for his efforts. Further, the worker showed the farm’s horses at the sale in New York, thereby conveying an obvious economic benefit to the employer. The Court also held that the ALJ and the Board correctly relied on the “positional risk” rule and the “traveling employee” exception to the “going and coming” rule to determine that the workers’ injuries arose out of were in the course of employment. Even though the worker stayed in New York and worked for the sales, he was injured while traveling back to resume his work at the horse farm in Kentucky. Therefore, even if the work for the sales could be considered a personal errand and a deviation for personal purposes, the deviation would not embody an intent to abandon the work-connected travel home. When the deviation was terminated and travel home was resumed, the coverage resumed.

B. UPS Airlines v. West

2010-CA-001433 4/22/2011 2011 WL 1549289

Opinion by Judge Wine; Judge VanMeter and Senior Judge Shake concurred. The Court affirmed an order of the Workers’ Compensation Board reversing an opinion and award of the ALJ granting the employer a credit, representing an offset against the amount of temporary total disability (TTD) benefits, after finding that a “Loss of License” benefit plan was exclusively employer-funded. The Court held that the Board correctly found that the benefit, which under its terms entitled a pilot, who had been off work and unable to use his FAA certificate to fly for a period of six months, a percentage of pay for up to twenty-four months, was employer funded. In a case of first impression, the Court held that benefits received pursuant to a collective bargaining agreement were not exclusively employer-funded under the terms of KRS 342.730(6). Therefore, the employer was not entitled to an offset against the TTD benefits.

KENTUCKY COURT OF APPEALS PUBLISHED OPINIONS -- MARCH 2011

KENTUCKY COURT OF APPEALS PUBLISHED OPINIONS

 MARCH 2011

I. ADMINISTRTIVE LAW

A. Department of Labor v. Morel Construction Co., Inc.

2010-CA-000193 1/28/11 Ordered Published 3/25/11 Rehearing Pending

Opinion by Judge Moore; Judges Caperton and VanMeter concurred. The Court reversed an opinion and order of the circuit court reclassifying a Kentucky Occupational Safety and Health Act (KOSHA) violation of the standard set forth in 803 KAR 2:417 § 3(1)(b) from “serious” to “other than serious” and vacating a violation of 29 C.F.R. 126.754(e)(5)(i) because it found that the method of installation of sheet metal decking by appellees complied with the standard. The Court first held that the trial court erred in reclassifying the violation to “other than serious.” The employees’ exposure to a hazard or violative condition was relevant to the issue of establishing a violation in general and the degree of probability that an injury would occur was relevant to the issue of determining a penalty for a violation. However, neither factor had any bearing upon the issue of whether a violation should be classified as serious per KRS 338.991(11) and the circuit court misapplied the law when it turned to these factors to determine whether the violation of 803 KAR 2:417 § 3(1)(b) was properly classified as serious. The Court then held that there was substantial evidence to support that there was a serious violation based on the finding that an employee of appellees, not wearing fall protection, was exposed to an unprotected side or edge 42 feet in height and that it was certainly possible to sustain an injury from falling from that height, with a substantial likelihood of serious physical injury, or possibly death. The Court finally held that while 29 C.F.R. 926.754(e)(5)(i) did not require the decking to be impermeable to all forces of nature, the standard requiring the decking to be “immediately secured” was intended to prevent wind from displacing the decking and must be observed whenever specified conditions, practices or procedures were encountered. Thus, the Cabinet did not have to establish exposure to the ultimate danger presented by a hazard as a separate element independent of the violation but only need prove that an employee was exposed to a condition that did not comply with the standard. Because substantial evidence supported that appellees failed to immediately secure the metal decking from being displaced by wind, within the meaning of the regulation, and the testimony led to a reasonable inference that the metal decking was not secured form being accidentally moved or displaced by the wind, the circuit court erred in vacating the citation.

B. W.B. v. Commonwealth, Cabinet for Health and Family Services

2010-CA-000361 3/11/11 2011 WL 832101

Opinion by Judge Moore; Judge Lambert and Senior Judge Isaac concurred. The Court affirmed an order of the circuit court dismissing appellant’s declaratory judgment action under CR 12.02(f), wherein appellant sought to challenge the

constitutionality of the several statutes and regulations providing for how the Cabinet for Health and Family Services substantiates allegations of child abuse for purposes of placing an individual’s name on Kentucky’s Central Registry list of substantiated child abusers and how an accused may contest and appeal the substantiation. The Court first held that due process in this context did not require a jury trial. Kentucky law provides an accused with fair notice; a trial-type hearing which subjects the allegations to rigorous testing prior to listing on the registry; an accused has the right to adduce evidence, be represented by counsel and confront any witnesses; a written decision is issued, which can be appealed; and the investigating agency has the burden of proof. The Court also held that while due process requires an impartial decision maker, appellant failed to suggest or show that a hearing officer employed by the Cabinet was incapable of deciding the issue fairly. Therefore, appellant failed to carry his burden or cite to authority establishing that procedural due process under the Fourteenth Amendment to the United States Constitution, or under the Kentucky Constitution, compelled a jury trial, even if a protected liberty interest existed. The Court also held that appellant’s other due process arguments were either without merit or not proper for review.

II. APPEAL AND ERROR

A. Hamilton v. Commonwealth

2009-CA-000949 3/25/11 2011 WL 1085324

Opinion by Judge Clayton; Senior Judge Lambert concurred; Judge Combs dissented by separate opinion. The Court remanded appellants’ convictions of trafficking in buprenorphine, entered pursuant to conditional guilty pleas. Appellants reserved the right to appeal from a trial court order denying a motion to dismiss the indictments based on an argument that the regulation classifying buprenorphine as a Schedule III drug was invalid and therefore, the indictments were invalid. The Court held that the trial court erred in finding it did not have jurisdiction to consider the challenge to the regulation. While the appellants did not argue the constitutionality of the regulation below, it was made an issue when the trial court found that it did not have jurisdiction to review the federal agency’s reasons for scheduling the drug. The Court remanded and directed that the Attorney General and the Cabinet for Health and Family Services should be made parties and the trial court, after arguments, should examine whether 902 KAR 55.025 Section 7 was rendered unconstitutional for the failure of the Cabinet to make sufficient findings before it classified buprenorphine as a Schedule III drug.

III. APPEALS

A. Tax Ease Investments 1, LLC v. Brown

2009-CA-001662 3/4/11 2011 WL 744514

Opinion by Judge Acree; Judges Dixon and Stumbo concurred. The Court dismissed by opinion and order an appeal from a circuit court order invalidating appellant’s lien on real property and a subsequent order denying a motion filed pursuant to CR 59.05 to alter, amend or vacate the initial order. The Court held that both orders were interlocutory and therefore, the Court did not have jurisdiction to consider them. The first order granting partial summary judgment was not final and appealable because there was no resolution of the damages portion of any claim. Therefore, even if the CR 54.02 finality recitations had been included, the order would have remained interlocutory and non-appealable. The second order, denying the CR 59.05 motion, did not completely dispose of even a single claim and therefore, could not be certified by including the finality recitations of CR 54.02.

IV. ARBITRATION

A. Stanford Health & Rehabilitation Center v. Brock

2009-CA-000160 1/29/10 2010 WL 323274 Ordered Published by S.Ct.

Opinion by Senior Judge Knopf; Judges Caperton and Stumbo concurred. The Court affirmed an order of the circuit court finding that an arbitration agreement was unenforceable in a lawsuit initiated against a nursing home by the executor of an estate. The Court held that the circuit court findings were supported by substantial evidence and that the agreement was unenforceable when it was not signed by the deceased but rather, was signed by the deceased’s sister who was not authorized to sign on his behalf. The deceased was mentally competent at the time he was admitted to the nursing home, he had no legal representative, he had not executed a power of attorney, he informed the admission coordinator that no one had the authority to act on his behalf, and he did not authorize his sister to sign his name.

V. CIVIL PROCEDURE

A. Honeycutt v. Norfolk Southern Railway Company

2009-CA-000895 3/18/11 2011 WL 918633

Opinion by Judge Moore; Chief Judge Taylor concurred; Judge Thompson dissented by separate opinion. The Court affirmed an order of the circuit court denying appellant’s motion to set aside an order dismissing his complaint pursuant to CR 77.02(2). The Court held that the trial court did not abuse its discretion in dismissing the complaint. Counsel’s failure to notify the circuit court that he changed his mailing address and, as a result, failed to receive the court’s sua sponte notice to show cause why the action should not be dismissed for lack of prosecution, did not warrant the order dismissing be set aside pursuant to CR 60.02. The order of dismissal was not void because appellant did not actually receive the notice to show cause as required by CR 77.02(2), as there was no authority in Kentucky that imposed a duty upon the circuit court clerk to track down the attorney who moved without giving notice to the court. Further, the circumstances did not fulfill CR 60.02(a)’s requirement of mistake, inadvertence, surprise or neglect and the rationale for setting aside the judgment did not fall into the category of an “extraordinary reason” to justify relief under CR 60.02(f).

VI. CONTRACTS

A. Owen v. DCR Mortgage III Sub I, LLC

2009-CA-001788 3/25/11 2011 WL 1085335

Opinion by Judge Nickell; Judge Acree and Senior Judge Shake concurred. The Court affirmed a summary judgment of the circuit court in favor of appellee on its claim against appellants to enforce their personal guarantees on a promissory note and mortgages executed by a company for which one spouse was the principal. The Court held that summary judgment was properly granted. The record showed that appellants personally guaranteed the note and mortgages and but for the actions of the spouse, urging recognition of late claims against the proceeds of a sale of the secured property, the sales proceeds would have satisfied the debt owed to appellee. The absence of appellants’ names from the list of creditors in the bankruptcy action was directly attributable to the spouse who was at the helm of the company. Moreover, appellants were apprised of all events in the bankruptcy proceedings. Any objection to the reasonableness of the sale was required to occur in the bankruptcy proceedings. Finally, appellee was not estopped from claiming the full amount due on the note.

VII. CRIMINAL LAW

A. Beeler v. Commonwealth

2009-CA-001133 3/4/2011 2011 WL 744975 Rehearing Pending

Opinion by Judge Combs; Judge Clayton concurred with the opinion and delivered a separate opinion for the Court; Judge Wine concurred in result only with the opinion of Judge Combs and concurred with the opinion of Judge Clayton. The Court vacated appellant’s conviction for conspiracy to manufacture methamphetamine in Hardin County after appellant pled guilty to a charge of attempt to manufacture methamphetamine in Hart County. The Court held that because both convictions arose from the same transaction and were not two distinct statutory provisions, jeopardy attached to the second conviction. The initial stop of appellant and his wife after they purchased pseudoephedrine in Hardin County did not constitute enough evidence to charge or arrest either appellant or his wife. It was only upon the search of appellant’s home in Hart County that appellant was charged with any offense. Therefore, the initial stop and search of the home were both the same transaction or incident for purpose of the test outlined in Blockburger v. U.S., 284 U.S. 299, 52 S.Ct. 180, 181, 76 L.Ed. 306 (1932).

B. Commonwealth v. McClain

2010-CA-000256 3/11/11 2011 WL 832091

Opinion by Judge Lambert; Judges Acree and Thompson concurred. The Court affirmed an order of the trial court granting appellee’s motion to quash a search warrant and to suppress evidence. The Court held that the trial court did not abuse its discretion. Although the affidavit and warrant were facially valid, the intentionally or recklessly false statement made therein by the sheriff, resulting in the search of appellee’s residence, warranted quashing the warrant and suppressing the evidence. Further, once the false statement was purged from the warrant, the warrant failed to establish the requisite probable cause to search appellee’s residence based upon the totality of the evidence. Finally, because the sheriff did not act in good faith when he included misleading information in the search warrant affidavit, his reliance on the information could not be deemed objectively reasonable and therefore, the circuit court correctly declined to apply the good faith exception in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

C. Easley v. Commonwealth

2009-CA-000716 3/18/11 2011 WL 922370 Rehearing Pending

Opinion by Judge Lambert; Judges Acree and Thompson concurred. The Court affirmed a judgment of the circuit court convicting appellant of numerous counts of exploiting an adult and sentencing him to 10 years’ imprisonment. The Court first held that the trial court did not err by denying appellant’s motion to suppress a review of his mother’s bank records. An individual has no reasonable expectation of privacy in his/her bank records and therefore, the bank records were not subject to the protections of the Fourth Amendment or Section 10 of the Kentucky Constitution. The Court next held that the trial court did not abuse its discretion by excluding certain documents from being introduced at trial. RCr 7.24(9) permitted the trial judge to exclude the documents based on appellant’s ongoing failure to cooperate with his defense counsel, refusal to produce the documents and his disregard for the trial court’s discovery order. The Court next held that the trial court did not err by permitting the Commonwealth to present evidence of checks appellant wrote to himself outside the time period set forth in the indictment. The evidence was admissible under KRE 404(b) to show appellant’s plan to take his mother’s money soon after he took over as attorney-in-fact and to show that the checks he wrote during the time set forth in the indictment were not a mistake, an accident, or simply the result of poor bookkeeping. Further, the checks were probative as to whether appellant committed the acts at issue in the indictment and there was no reason to believe the jury became confused between the earlier checks and the checks written during the indictment period. The Court finally held that the trial court did not abuse its discretion by denying a second request to continue the trial. The length of time seemed excessive, appellant had already been granted previous continuances and demonstrated he was not cooperating with defense counsel, the delays appeared to be purposeful and caused by appellant, the case was not complex and appellant could not identify any prejudice.

VIII. EMPLOYMENT

A. Harstad v. Whiteman

2009-CA-000190 3/4/2011 2011 WL 744287

Opinion by Judge Acree; Judges VanMeter and Wine concurred. The Court affirmed summary judgments and a trial verdict relating to the termination of appellant’s employment with the appellee college. The Court first held that appellant failed to present evidence sufficient to create a genuine issue of material fact on his defamation claims. Based on the undisputed facts, the circuit court properly concluded as a matter of law that the statements regarding appellant’s relationship with a graduate student were made within the context of the employment relationship and were subject to a qualified privilege. Absent a showing the statements were malicious, the qualified privilege applied. Appellant’s conclusory allegations based on suspicion and conjecture were not sufficient to create an issue of fact; it could not be inferred from inconsistencies among the defendants that the statements were intentional or reckless misstatements; and falsity alone would not demonstrate abuse of privilege when the statements were elicited by college personnel. The Court next held that the circuit court properly granted summary judgment on appellant’s tortious interference claims. The employees of the college, acting as agents of the college, were not third parties and therefore, could not interfere with the contract. The Court next held that because appellant did not only argue on appeal that the verdict was not sustained by the evidence and the errors were otherwise properly preserved, CR 59.06 made appellant’s failure to file a motion for a new trial irrelevant. The Court then held that the circuit court did not abuse its discretion by excluding evidence of disparate treatment on the basis that it was irrelevant to the breach of contract claim. The Court finally held that the circuit court properly instructed the jury on the breach of contract claim. The jury had a copy of the faculty manual to reference during deliberations and the instruction given allowed appellant to argue that the college deviated from its own procedures, and thereby breached the employment agreement, and to argue the absence of good faith based on the evidence presented. Further, the interrogatory presented to the jury subsumed the question of whether the college used lies, gossip and slander as a basis for the termination.

IX. FAMILY LAW

A. Carpenter v. Schlomann

2010-CA-000027 3/11/11 2011 WL 831945

Opinion by Senior Judge Lambert; Judges Caperton and Wine concurred. The Court reversed and remanded an order of protection entered on behalf of appellee. The Court held that the trial court erred when it relied upon the sworn testimony of only one party and the unsworn rebuttal of the other. Because appellant was not sworn, the trial court failed to conduct a full evidentiary hearing as envisioned by the statutes and caselaw. Further, the court could not rely upon extrajudicial evidence and because there was no proper evidentiary basis for a finding of domestic violence, the trial court’s entry of a DVO was erroneous. The Court finally held that an emergency protective order was not improperly entered. Pursuant to KRS 403.740(1), the court could issue the EPO based on allegations that indicated the presence of immediate and present danger of domestic violence.

B. Faulkner v. Greenwald

2009-CA-001802 3/11/11 2011 WL 831714

Opinion by Senior Judge Lambert; Judges Caperton and Wine concurred. The Court reversed and remanded a memorandum and order of the circuit court dismissing appellant’s personal injury lawsuit against a high school athletic director. Appellant filed the lawsuit after she was injured by a concession stand door at a high school soccer field. The Court held that safely maintaining the concession stand was a ministerial duty and therefore, the trial court erred in concluding that the athletic director was entitled to official immunity. Whether the maintenance was negligently performed was a question for the trier of fact.

X. LICENSES

A. Gallien v. Kentucky Board of Medical Licensure

2009-CA-000694 3/25/11 2011 WL 1085320

Opinion by Senior Judge Lambert; Judges Caperton and Wine concurred. The Court affirmed an order of the circuit court dismissing the appellant doctor’s petition for judicial review of an adverse determination by the Kentucky Board of Medical Licensure. The Court held that the trial court correctly dismissed the petition because it was not filed within the 30 days prescribed by KRS 311.593 and KRS 13B.140. In reaching that conclusion the Court held that an order of suspension was a final order, even though it was not directly designated as final and appealable, when it was made plain and obvious that it was. The Court rejected appellant’s argument was it was not final because it did not address the disciplinary charges raised in the original complaint and emergency order of suspension. The Court also rejected appellant’s argument that the hearing officer had the authority to extend the time for filing a petition for judicial review by reopening and reconsidering the inquiry panel’s order of suspension.

XI. PROPERTY

A. Harston v. Commonwealth, Transportation Cabinet

2010-CA-000615 3/4/2011 2011 WL 744542

Opinion by Judge Nickell; Judge VanMeter and Senior Judge Shake concurred. The Court affirmed in part and reversed in part orders of three different circuit courts granting summary judgment to the Transportation Cabinet on its complaints seeking an injunction to have signs conveying religious messages, erected on private property, declared a public nuisance and removed. The Cabinet alleged that signs were advertising devices that violated Kentucky’s Billboard Advertising Act, KRS 177.830 through 177.890; were erected after January 1, 1976; were visible, legible and identifiable from the main travelway; were not located in an area that qualified as an unzoned commercial area; did not qualify as on-premises signs; were not located in a protected area as the term was defined in 603 KAR 3:080 § 1(29); were located in an area that was neither industrial nor commercial nor within an incorporated municipality as of September 21, 1959; and did not have an approved permit from the Cabinet. The Court first held that the signs satisfied the definition of “advertising device” found in KRS 177.830(5) and whether the signs advertised in the traditional sense of the word was irrelevant in light of the clear, unambiguous statutory definition. The Court then held that the “on-premises” exemption could not be extended to the subject signs because the permit requirement was rationally related to the objectives of the Billboard Act, the Act implemented valid place and manner restrictions, and the Act was content neutral. The Court next held that while the Billboard Act was subject to analysis under the Religious Land Use and Institutionalized Persons Act (RLUIPA), codified in 42 U.S.C. § 2000cc(a)(1), the Act was supported by compelling state interests relating to public safety and aesthetics. The Court finally held that the Act utilized the least restrictive means to meet its objectives because it did not totally ban communication. The Court reversed that part of one order that required appellants to apply for a permit. Because there were no disputed factual questions and the issue was confined to the validity of the Billboard Act and the applicability of the RLUIPA, requiring a permit application was unnecessary to seek judicial relief.

B. McCoy v. Thompson

2009-CA-001585 3/4/11 2011 WL 744508 Rehearing Pending

Opinion by Judge Acree; Judges Dixon and Stumbo concurred. The Court affirmed an order of the circuit court finding that appellee acquired a parcel of land via adverse possession. The Court held that the existence of a fence and appellee’s efforts to keep it in good repair, coupled with the other uses found by the circuit court, supported the circuit court’s conclusion. Therefore, the finding of adverse possession was not clearly or erroneous. The Court distinguished the holding in Ennis v. Billingsly, 264 Ky. 254, 94 S.W.2d 669 (1936), on the fact that the fence was considered the boundary line between the tracts and when appellee purchased the property he believed the fence was the boundary and the transacting parties intended that he acquire and possess the tract at issue.

XII. TORTS

A. Leighton v. CSX Transportation, Inc.

2009-CA-001158 3/11/11 2011 WL 831433

Opinion by Judge Acree; Judges Combs and Wine concurred. The Court affirmed an order of the trial court denying appellant’s motion for a new trial of his tort claim against his employer on the ground that the jury was allowed to speculate about collateral source payments for medical expenses. In a case of first impression, the Court held that a jury instruction including a limitation on the award of damages, allowing appellant to recover no more than the amount of medical expenses not paid by the employer under The Railroad Employees National Health and Welfare Plan, was not improper. The Plan was not a collateral source of payment for the medical expenses.

XIII. WORKERS' COMPENSATION

A. Forbes v. Dixon Electric, Inc.

2009-CA-000834 4/30/10 2010 WL 1729101 Ordered Published by S.Ct.

Opinion by Senior Judge Knopf; Judges Clayton and Nickell concurred. The Court affirmed a summary judgment of the circuit court in favor of appellee after finding that the company was entitled to up-the-ladder immunity afforded by KRS 342.610 of Kentucky’s Workers’ Compensation Act for injuries a police officer sustained while directing traffic at an intersection where appellee was replacing wood poles with steel poles. The Court held that the Kentucky Supreme Court did not create a new test for up-the-ladder immunity when it rendered General Electric Co. v. Cain, 236 S.W.3d 579 (Ky. 2007), and the facts of this case fell squarely within the application of Cain and KRS 342.610. By virtue of its contract with the Lexington-Fayette Urban County Government to install and repair traffic signals throughout the city, appellee had to provide for traffic control, which was done either by its employees or city police officers. Traffic control was unquestionably a regular and recurrent part of appellee’s business. Appellee took on the role of a contractor while the police took on the role of sub-contractor at the time and place of the accident and therefore, appellee was entitled to up-the-ladder immunity.

KENTUCKY COURT OF APPEALS PUBLISHED OPINIONS FEBRUARY 2011

KENTUCKY COURT OF APPEALS PUBLISHED OPINIONS
FEBRUARY 2011

 I. APPEALS
 

A. Lanham v. Lanham

 2009-CA-001025 02/25/11 WL citation not available

Opinion by Judge Wine; Judges Clayton and Combs concurred. The Court affirmed an order of the circuit court holding appellant in contempt for failing to comply with the terms of a divorce decree and order entered by the court. The Court first held that a trial judge is not an indispensable party to an appeal from an order of contempt. The Court then held that the trial court did not abuse its discretion in its finding of civil contempt after appellant flagrantly disregarded court orders.

 

II. ATTORNEY FEES

A. Clark v. Hectus & Strause PLLC

 2010-CA-000008 02/25/11 WL citation not available

Opinion by Senior Judge Lambert; Judges Clayton and Moore concurred. The Court reversed and remanded a summary judgment in favor of a lawyer and law firm on appellant’s claim for reimbursement of all or part of a $10,000 fee paid during representation of appellant in a criminal matter after he plead guilty in lieu of going to trial. The Court held that the written fee agreement between the parties for trial preparation and trial, consisting of letters between the parties, was ambiguous as to the question of whether appellant would be entitled to a partial reimbursement of the subject fee in the event that the case did not proceed to trial. In light of the ambiguous nature of the parties’ fee agreement, there were genuine issues of material fact that could not properly be resolved via summary judgment. Because the parties did not create a fee contract that addressed the issue of who was entitled to what in the event that a trial did not take place, the question would have to be resolved by a finder of fact.

 

III. CRIMINAL LAW 

A. Matlock v. Commonwealth

 2009-CA-000929 02/18/11 2011 WL 556437

Opinion by Judge Acree; Judge Stumbo and Senior Judge Lambert concurred. The Court remanded a circuit court order denying appellant’s motion to suppress without holding an evidentiary hearing. The Court held that the motion to suppress was timely made when it was made prior to cross-examination of the Commonwealth’s first witness, when the seized items were first offered into evidence. The Court next held that RCr 9.78 mandates a trial court to hold an

evidentiary hearing outside of the presence of the jury. In this case material and substantial facts were in dispute, no tape of the interaction between appellant and the officer existed, and the officer’s testimony regarding the search and seizure differed greatly from appellant’s testimony at trial. Therefore, the failure to grant the hearing was not harmless error.

 

B. Parker v. Commonwealth

 2009-CA-001701 02/04/11 2011 WL 336833

Opinion by Judge Clayton; Judge Thompson concurred in result only; Judge Nickell concurred by separate opinion. The Court affirmed an order of the circuit court finding that appellant was not entitled to reimbursement of restitution he paid in response to a restitution order which the Court of Appeals had previously directed the trial court to void. The Court held that the parole board had authority under KRS 532.032(4) to make restitution a condition of appellant’s parole and therefore, he was not entitled to reimbursement.

 

C. Reed v. Commonwealth

 2010-CA-000266 02/04/11 2011 WL 336988 DR Pending

Opinion by Judge Lambert; Senior Judge Isaac concurred; Judge Moore dissented by separate opinion. The Court affirmed in part and vacated in part a judgment of conviction and sentence, entered subsequent to a plea agreement, imposing a felony fine upon appellant in the amount of $1,000.00. The Court held that because the trial court had previously found appellant to be indigent, pursuant to KRS 534.030 the imposition of the felony fine was in error. The Court also held that pursuant to Simpson v. Commonwealth, 889 S.W.2d 781 (Ky. 1994), the Court could simply vacate the portion of the judgment requiring the indigent defendant to pay the fine but was not required to overturn the plea agreement improperly imposing the felony fine.

 

IV. FAMILY LAW

A. Age v. Age

 2009-CA-001982 02/04/11 2011 WL 339196

Opinion by Judge Clayton; Judge Nickell concurred; Judge Thompson concurred by separate opinion. On appeal and cross-appeal, the Court affirmed orders of the circuit court denying appellant’s motion under CR 60.02 to set aside a judgment of divorce, awarding maintenance to the cross-appellant, ordering the cross-appellant to pay additional fees to her original attorney, and denying the cross-appellant’s motion for reimbursement of the attorney fees by appellant. The Court first held that while KRS 22A.020(3) does not allow appellate review of a dissolution decree, because appellant was asking for the marriage to be declared void, the decision was subject to appellate review. The Court then held that the trial court did not abuse its discretion in denying the motion to vacate the judgment of divorce because the motion was not timely filed within a year of the judgment and there was no evidence of civil fraud even though the Catholic Church determined under ecclesiastical law that the marriage was void. The

Court next held that the trial court did not err in awarding maintenance when the trial court’s evaluation of the factors in KRS 403.200(2) was appropriate, the amount was not unreasonable and the duration was not arbitrary. The Court next held that although the notice of cross-appeal did not identify the order for reimbursement of attorney fees, because the objective was to decide cases on the merits; the cross-appellee made no objection; and no unfair prejudice resulted from consideration of the issue, the Court would decide the issue on its merits. The Court then held that the trial court did not abuse its discretion by not awarding the cross-appellant the attorney fees she incurred in defending against the motion to set aside the decree of dissolution. There was no indication that the court’s ruling was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.

 

B. McGregor v. McGregor

 2009-CA-000614 02/18/11 2011WL556356

Opinion by Judge Wine; Judges Acree and Combs concurred. The Court affirmed findings of fact, conclusions of law and a judgment entered by the family court in an action dissolving the parties’ marriage. The Court first held that the family court’s finding that a shared-custody schedule best served the children’s need for consistency and worked well for the parties was supported by substantial evidence and therefore, the court did not abuse its discretion in setting a shared-custody arrangement that allowed the parties to equally share parenting time on an alternating-week schedule. The Court next held that the family court did not err in imputing income to one spouse for purposes of determining child support and maintenance. In a case of first impression, the Court held that it was implicit in the language of KRS 403.200 that the court could impute income to a voluntarily unemployed or underemployed spouse to determine both the spouse’s entitlement to maintenance and the amount and duration of maintenance. The Court next held that the family court was within its discretion to deviate from the child support guidelines based on the shared-parenting schedule. The Court also held that the family court did not clearly err or abuse its discretion in its discussion of the payment of the children’s private school tuition in deviating from the guidelines. The Court next held that, based upon the income properly imputed to one spouse, the family court did not abuse its discretion by awarding maintenance based on this amount. Further, while the evidence may have supported an award for a shorter period in declining amounts, the evidence did not compel that result. The Court finally held that the family court did not inequitably assign debt to the parties.

 

V. INSURANCE

A. Motorists Mutual Insurance Company v. Hartley

 2010-CA-000202 02/11/2011 2011 WL 474944

Opinion by Judge Thompson; Judge Moore and Senior Judge Lambert concurred. The Court reversed and remanded an opinion and order of the circuit court declaring that an “owned but not scheduled for coverage” exclusion contained in a insurance policy issued by appellant to appellee was invalid and unenforceable. The Court first held that the exclusion was not ambiguous as it unequivocally stated that UIM coverage was not afforded for motor vehicles not covered under the policy and the motorcycle involved in the accident was not listed as an insured motor vehicle. The Court also held that the exclusion was not unenforceable on public policy grounds. In doing so, the Court distinguished the holdings in Chaffin v. Kentucky Farm Bureau Ins. Companies, 789 S.W.2d 754 (Ky. 1990), and Hamilton Mut. Ins. Co. v. United States Fidelity & Guar. Co., 926 S.W.2d 466 (Ky. App. 1996). Unlike an owner of all other motor vehicles who must opt out of uninsured/underinsured coverage pursuant to KRS 304.20-020, motorcycle owners must affirmatively purchase all optional coverage. To afford UIM coverage to appellee, who did not pay premiums to appellant for coverage of his motorcycles and who expressly rejected such coverage, would be contrary to public policy because the insurance companies would ultimately raise premiums on all consumers to reflect the increased risk.

 

B. Stamper v. Hyden

 2009-CA-002033 02/18/11 2011 WL 557796

Opinion by Judge Dixon; Judges Clayton and Wine concurred. The Court vacated and remanded a judgment entered upon a jury verdict in favor of the appellee insurance company on appellant’s claims for recovery under her uninsured motorist benefits pursuant to her automobile insurance policy for damages resulting from the intentional criminal conduct of her former boyfriend. In a case of first impression, the Court held that in order to achieve the protective purpose of KRS 304.20-020, on a claim for UM benefits, the term “accident” must be interpreted from the perspective of the insured-victim, not the uninsured motorist-tortfeasor. Therefore, the incident was an accident within the meaning of appellant’s UM policy and the trial court erred by instructing the jury to determine whether damages were the result of an accident. The Court also held that the error was not harmless because the instructions potentially confused or misled the jury by limiting appellant’s recovery to damages that were caused by an accident.

 

VI. JUVENILES

A. J.L. v. Commonwealth

 2010-CA-001090 02/11/11 2011 WL 475002

Opinion by Judge Nickell; Judges Keller and Stumbo concurred. The Court reversed and remanded orders finding the appellant minor siblings to be habitual truants and imposing restrictions on their movements and school absences until graduation or until they reached the age of 21, whichever occurred first. The Court held that the juveniles’ admissions to the charged offenses must be set aside when the trial court failed to ensure the entry of the admissions was knowingly, intelligently and voluntarily made and that the juveniles knew the constitutional rights they were giving up by entering the admissions.

 

VII. PROPERTY

A. W.M. Specialty Mortgage, LLC v. Community Trust Bank, Inc.

 2009-CA-002091 02/18/11 2011 WL 558655

Opinion by Chief Judge Taylor; Judge Keller and Senior Judge Lambert concurred. The Court affirmed a summary judgment of the circuit court adjudicating the priority liens upon a tract of real property. The Court held that the circuit court properly granted summary judgment to the appellee bank, holding that its lien claim was prior and superior to that of appellant. Pursuant to the plain terms of KRS 382.280, appellee’s lien, which was recorded first in time, had priority over appellant’s lien on the same property. The Court further held that appellant’s argument that the doctrine of equitable subrogation should apply was without merit. There was no agreement between the borrowers and the appellee bank that the prior recorded lien would be subordinate to the later in time recorded lien. Additionally, the equities of the case did not favor application of the doctrine when the record revealed that in conjunction with a commercial loan, appellee obtained as additional collateral, a mortgage lien on the borrowers’ residential property; thereafter appellant obtained and recorded a mortgage lien on the same residential real property after refinancing the borrowers’ indebtedness on the property; through an error of the title examiner, appellant was unaware of appellee’s prior lien; and the borrowers defaulted on the commercial loan.

 

VIII. TORTS 

A. Cunningham v. Abbott

 2007-CA-001971 02/04/11 2011WL336459 Rehearing pending

Opinion by Judge Nickell; Judges Stumbo and Wine concurred. The Court affirmed in part, vacated in part, reversed in part, and remanded orders entered in actions related to the mediated settlement of claims against the manufacturer of Fen-Phen. The actions were brought to retrieve what the plaintiffs claimed were misallocated monies and to receive damages for breaches of professional duty. On direct appeal the Court first held that the plaintiffs’ filing of an independent action was not an impermissible collateral attack on valid orders entered in the products liability action against the drug manufacturer. The plaintiffs had no opportunity to learn of the handling of the settlement in the products liability action; the independent action was not the result of a modification or vacation of the orders in the products liability action; the failure of the attorneys to disclose settlement details, the amount of attorney fees, and information regarding the creation of a cy pres trust allowed for an inference that the plaintiffs were lulled, gulled, or seduced into inactivity during the products liability action; and CR 60.03 offered equitable relief by means of an independent action. The Court next held that the trial court erred in awarding partial summary judgment to the plaintiffs as an affidavit of a practicing attorney and expert in mass litigation raised genuine issues of material fact as to whether the entire settlement, minusfees and expenses was to be split between the settling claimants; whether the settling complainants were fairly and adequately compensated; whether the cy pres trust was funded with money that should have been distributed to the settling claimants or was funded with excess funds for which the plaintiffs’ consent to its ultimate use was not required; and whether the attorneys were obligated to indemnify the manufacturer for additional claimants who might come forward after settlement had been dispersed. The Court next held that the order denying the defendants’ motion for summary judgment was interlocutory. The Court next held that an attorney did not have standing to appeal on behalf of the cy pres trust, which was a separate corporate entity that did not appeal the adverse ruling seizing its assets and placing them in a constructive trust. The Court finally held that the trial court did not abuse its discretion in denying the plaintiffs’ motion to transfer venue from the Boone Circuit Court to Fayette Circuit Court. There was no statutory provision allowing for the bifurcated proceedings requested by the plaintiffs, seeking only that the trial be moved. Further, plaintiffs’ active prosecution of the matter for nearly two years before complaining regarding venue operated as a bar to the request.

 

B. Engle v. Baptist Healthcare System, Inc.

 2009-CA-002170 02/25/11 WL citation not available

Opinion by Judge Moore; Judge Dixon and Senior Judge Isaac concurred. The Court reversed and remanded on direct appeal and affirmed on cross-appeal a defense verdict in a medical negligence action regarding care and treatment provided to a patient. The Court first held that the trial court erred in admitting an investigative report from the Department for Community Based Services (DCBS) resulting from an investigation of the executor’s allegations concerning the care and treatment. The report was hearsay and in light of Jordan v. Commonwealth, 74 S.W.3d 263 (Ky. 2002), KRE 803(8) did not exempt it from the rule against hearsay. The report, entered into evidence without the safeguards described by Jordan, did nothing more than put before the jury another social worker’s improperly admitted written belief that a preponderance of the evidence did not support a finding that the health care provider deprived the deceased of services necessary to maintain her health and welfare. The erroneous introduction of this evidence prejudiced the executor’s substantial rights and mandated reversal and a new trial. On the cross-appeal, the Court held that the trial court did not err in its decision to grant the executor leave to amend his answers to interrogatories to seek punitive damages after the close of evidence but prior to submission of the matter to the jury. Because a new trial was warranted, there was no authority to prohibit the executor from moving to supplement his answers during the course of retrial.

 

C. McAlpin v. Davis Construction, Inc.

 2009-CA-002154 02/11/11 2011 WL 480761

Opinion by Judge VanMeter; Judge Lambert and Senior Judge Shake concurred. The Court affirmed an order and judgment of the circuit court dismissing with prejudice appellant’s negligence claim against the appellee construction

company following a unanimous jury verdict in favor of the company. Appellant filed suit against appellee for the negligent maintenance and operation of its dump truck with which she was involved in a collision. The Court first held that the trial court did not err by instructing the jury that the driver’s duties were subject to a sudden emergency qualification. The driver testified he was traveling at a lawful speed and that he applied his brakes immediately upon seeing appellant enter his path and appellee submitted evidence that the driver reacted typically. Therefore, a reasonable jury could deduce that the driver did not create the emergency and had little to no time for deliberation of alternative courses of action. The Court next held that the trial court did not err by denying appellant’s motion for a directed verdict as the evidence was sufficient to support a finding that the driver acted as a reasonably prudent driver when appellant failed to yield to his right-of-way. The Court finally held that the trial court did not err by failing to instruct the jury according to the Code of Federal Regulations when the instructions given stated that the driver was under the duty to exercise ordinary care to avoid collision with other persons or vehicles using the highway and the detail concerning the duties to maintain the vehicle in a safe condition could have been fleshed out during appellant’s closing statements.

 

D. Smith v. Martin

 2009-CA-002226 02/04/11 2011 WL 336850

Opinion by Chief Judge Taylor; Judge Stumbo and Senior Judge Shake concurred. The Court affirmed in part, vacated in part and remanded a summary judgment dismissing appellant’s defamation claims against appellee. The Court first held that that the statements directed to appellant at a city council meeting by the mayor presiding at the meeting were entitled to an absolute privilege under KRS 83A.060(15). As such, the circuit court properly rendered summary judgment dismissing the defamation claim based upon those statements. The Court then held that KRS 411.060 provided a qualified privilege for the publication of a report recounting the events at the city council meeting. However, whether the report was fair and accurate or was maliciously made was not addressed by the trial court. Therefore, the Court remanded to the trial court for a determination of whether the qualified privilege operated as a defense to the defamation claim.

 

IX. WILLS AND ESTATES

A. Jarvis v. National City

 2009-CA-002258 02/04/11 2011 WL 336865 DR pending

Opinion by Judge Nickell; Judge Clayton concurred; Judge Thompson dissented by separate opinion. The Court affirmed an award of summary judgment to appellees in a declaratory judgment action wherein appellees sought a declaration that that the repeal of KRS 386.180, eliminating limits on the compensation charged by testamentary trustees, was effective with respect to trusts which predated the repealed statute. The Court adopted the summary judgment of the trial court, declaring that for serving as trustees of testamentary

trusts, the trustees could charge a reasonable fee, generally commensurate with the fee that would be charged for similar non-testamentary trusts, and in the limited instances of testamentary trusts that are or have been subject to a termination fee, the testamentary trustees’ determination of reasonable fees may also take into consideration the fees charged or deferred, prior to the repeal of KRS 386.180, so that the total fee they receive during the administration of a trust was reasonable.

 

B. Maratty v. Pruitt

 2009-CA-000695 02/11/11 2011 WL 474802

Opinion by Judge VanMeter; Chief Judge Taylor concurred; Judge Stumbo dissented. The Court affirmed a summary judgment of the circuit court in favor of the administratrix of an estate on the heirs’ action under KRS 62.070 for recovery on a fiduciary’s bond. The Court held that the three elements of claim preclusion subpart of res judicata were present - identity of the parties, identity of the cause of action, and an action resolved on the merits. The Court rejected the heirs’ argument that claims involving breach of fiduciary duties were reserved solely to the circuit court. KRS 24A.120 gave the district court jurisdiction over the settlements and accounts of fiduciaries, even those that might be contested. Because the administratrix filed a proposed settlement, KRS 395.617 provided the heirs with the remedy of instituting an adversary proceeding in circuit court, pursuant to KRS 24A.120(2), following the district court judgment or of cross-appealing after the administratrix appealed. The Court also held that the claim on the bond was precluded by the heirs’ participation in the district court settlement. By approving the settlement, the district court made the implicit determination that the administratrix had faithfully discharged her duties.

 

C. McGowan v. Bogle

 2010-CA-000118 02/04/11 2011 WL 336932

Opinion by Judge Thompson; Judge Caperton and Senior Judge Isaac concurred. In a will construction dispute, the Court affirmed a judgment of the circuit court finding that the anti-lapse statutes were not applicable because the will unambiguously expressed the intention that the beneficiaries survive the testator in order to inherit under the will. The Court held that, pursuant to the reasoning in Slattery v. Kelsch, 734 S.W.2d 813 (Ky. App. 1987), the use of the language conditioning the gifts on the survival of the beneficiaries at the time of the testator’s death was sufficient to defeat the application of the anti-lapse statutes. A different result was not compelled by KRS 394.410(3) and the facts in Blevins v. Moran, 12 S.W.3d 698 (Ky. App. 2000), were distinguishable. Because the will expressly and unambiguously stated the testator’s intention, the circuit court was not required to admit extrinsic evidence regarding appellants’ relationship to the testator.