Kentucky Court Report - SCOKY & COAKY

Jan. 27, 2012 COA Minutes --   Nos. 84-115 (32 decisions; 5 published)

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PUBLISHED DECISIONS OF COA:

91. BUSINESS LAW. LETTERS OF CREDIT. ATTORNEY FEES.
LOUISVILLE MALL ASSOCIATES, LP, ET AL.
VS.
WOOD CENTER PROPERTIES, LLC
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
ACREE (PRESIDING JUDGE)
STUMBO (CONCURS) AND LAMBERT (CONCURS)
2010-CA-000933-MR
2010-CA-001255-MR
TO BE PUBLISHED
OLDHAM

ACREE, JUDGE: Appellants, Robert B. Greene (Greene) and Louisville Mall Associates, LP, Manchester Mall Associates, LP, Corbin Mall Associates, LP, Sheperdsville Mall Associates, LP, and Fairlea Mall Associates, LP (collectively, the “Mall Appellants”)2 bring these consolidated appeals from a judgment and two post-judgment orders of the Oldham Circuit Court. Greene first appeals from the circuit court’s order granting appellee, Wood Center Properties (WCP), summary declaratory judgment claiming the circuit court erroneously interpreted the Letter of Credit at issue. We find no reversible error in the circuit court’s rulings respecting this issue. In the second appeal, Greene first contends the circuit court improperly denied his motion pursuant to Kentucky Rules of Civil Procedure (CR) 60.02. We find Greene’s CR 60.02 motion procedurally deficient and affirm the circuit court’s first post-judgment order. Greene next asserts the circuit court improperly granted WCP’s motion for attorney’s fees. We agree and reverse the circuit court’s second post-judgment order. Accordingly, we affirm in part and reverse in part, and remand for the entry of an order consistent with this opinion.

93. CRIMINAL LAW
RAINES (LARRY)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
DIXON (CONCURS) AND LAMBERT (CONCURS)
2010-CA-001059-MR
TO BE PUBLISHED
JESSAMINE

CLAYTON, JUDGE: Larry Raines appeals from a judgment of the Jessamine Circuit Court on his conditional guilty plea to seven counts of incest. For the following reasons, we affirm.

103.  MEDICAL MALPRACTICE.  CIVIL PROCEDURE (SUMMARY JUDGMENT, AFFIDAVITS)
ROGERS (JIMMY)
VS.
INTEGRITY HEALTHCARE SERVICES, INC.
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
CAPERTON (CONCURS) AND KELLER (CONCURS)
2010-CA-001876-MR
TO BE PUBLISHED
LINCOLN

LAMBERT, JUDGE: Jimmy Rogers appeals from the Lincoln Circuit Court’s grant of summary judgment in favor of Integrity Healthcare Services, Inc. (“Integrity”)1 as to Rogers’s medical malpractice claims against Integrity. After our review, we affirm.

Rogers first challenges the circuit court’s reliance upon Lipsteuer, supra, and Gilliam, supra, which held that an affidavit cannot be used to defeat a motion for summary judgment if it contradicts previous testimony provided by the non-moving party. Rogers admitted in his motion to set aside the summary judgment that his affidavit contradicted his previous interrogatory answers. However, he contends that the subject decisions are inapposite in this case and that summary judgment was, therefore, entered erroneously because they dealt with affidavits that contradicted deposition testimony – not interrogatory answers.

As correctly noted by Integrity, though, Rogers failed to raise this particular argument before the circuit court. Therefore, we consider it waived since “‘[a] new theory of error cannot be raised for the first time on appeal.’” Fischer v. Fischer, 348 S.W.3d 582, 588 (Ky. 2011), quoting Springer v. Commonwealth, 998 S.W.2d 439, 446 (Ky. 1999); see also Hutchings v. Louisville Trust Co., 276 S.W.2d 461, 466 (Ky. 1954) (“[I]t is the accepted rule that a question of law which is not presented to or passed upon by the trial court cannot be raised here for the first time.”). Moreover, this Court has explicitly recognized that a party “cannot submit a later affidavit contradicting his earlier sworn answers to interrogatories to defeat summary judgment.” Best v. West American Ins. Co., 270 S.W.3d 398, 403 n.6 (Ky. App. 2008) (Emphasis added). Thus, no “extraordinary error” occurred here that would merit relief in the absence of preservation. See Fischer, 348 S.W.3d at 589; CR 61.02. Accordingly, Rogers’s argument must be rejected.

“It is beyond dispute that causation is a necessary element of proof in any negligence case.” Baylis v. Lourdes Hosp., Inc., 805 S.W.2d 122, 124 (Ky. 1991). “[I]n most medical negligence cases, proof of causation requires the testimony of an expert witness because the nature of the inquiry is such that jurors are not competent to draw their own conclusions from the evidence without the aid of such expert testimony.” Id. (Footnote omitted); see also Andrew v. Begley, 203 S.W.3d 165, 170 (Ky. App. 2006).3 Thus, in order “[t]o survive a motion for summary judgment in a medical malpractice case in which a medical expert is required, the plaintiff must produce expert evidence or summary judgment is proper.” Andrew, 203 S.W.3d at 170.

Integrity asserts – correctly – that the subject affidavit fails to establish that either of the nurses was qualified as an expert to opine on medical causation and provides no evidence of their respective backgrounds, qualifications, or their knowledge of the subject medical history. Moreover, Rogers did not produce any reports or statements from the nurses summarizing or explaining their opinions and the bases for them. In light of these threshold failures, we cannot say that the circuit court erred in refusing to consider the affidavit and the opinions offered by the nurses therein as evidence of medical causation or in consequently entering summary judgment.4 Rogers had ample time to produce expert witnesses to support his cause of action and to sustain his burden of proof, but he failed to do so. Therefore, Integrity was entitled to summary judgment as a matter of law. See Blankenship, 302 S.W.3d at 673.

104.  CRIMINAL LAW
SCHWEIKERT (TROY)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
TAYLOR (CONCURS) AND DIXON (CONCURS)
2010-CA-001936-MR
TO BE PUBLISHED
KENTON

LAMBERT, JUDGE: In this post-conviction action, Troy Schweikert, proceeding pro se, has appealed from the Kenton Circuit Court’s order denying his motion for Kentucky Rules of Criminal Procedure (RCr) 11.42 relief on grounds of ineffective assistance of trial counsel. Because we agree with the trial court that Schweikert’s claims were refuted by the record, we affirm.

113.  CRIMINAL LAW.
KERR (DANIEL)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
CLAYTON (CONCURS) AND DIXON (CONCURS)
2011-CA-000351-MR
TO BE PUBLISHED
JEFFERSON

LAMBERT, JUDGE: Daniel A. Kerr has directly appealed from the judgment of the Jefferson Circuit Court convicting him of second-degree robbery and sentencing him to six-and-one-half years’ imprisonment pursuant to the jury’s verdict. Having carefully considered the record and the parties’ arguments in their briefs, we affirm.

On appeal, Kerr presents three arguments: 1) that the trial court made improper comments to the jury at the beginning of the trial; 2) that the robbery instruction denied him a unanimous verdict by including a theory of guilt not supported by the evidence; and 3) that the trial court improperly struck a potential juror for cause. We note that the first and second arguments are not preserved for appellate review.

Kerr’s first argument addresses explanatory comments the trial court made to the jury prior to the start of the trial. These comments came directly after the court swore in the jury and were meant to orient the jury about how the trial would proceed; in other words, a “roadmap” of the proceedings. Kerr contends that these comments invaded the jury’s exclusive right to judge the facts. Both Kerr and the Commonwealth in their respective briefs provided the historical background addressing this issue of law. In his reply brief, Kerr requested that this matter be decided as either a matter of constitution law under § 7 of the Kentucky Constitution or under common law.

After Kerr filed his reply brief, the Supreme Court of Kentucky issued the opinion of Walker v. Commonwealth, 349 S.W.3d 307 (Ky. 2011), which became final on October 13, 2011. This case is the subject of Kerr’s motion for leave to file and notice of binding authority, which this Court has granted. We have reviewed this recent opinion and note that the trial judge in Walker is the same trial judge in the present case and that virtually identical comments were made in each case. Furthermore, the issue was not preserved in either case. Accordingly, we hold that the Supreme Court’s holding in Walker is determinative as to this issue, and we shall set forth the applicable portion of the opinion below:

Walker also contends that his trial was rendered unfair by comments the trial court made to the jury immediately prior to the attorneys' opening statements. Having sworn in the jury, the trial court sought to orient it by providing what the court styled a “roadmap” of the proceedings. The court briefly described the phases of the trial and the roles of the participants. In explaining the jury's role as the finder of fact, the court noted that the jury was the sole arbiter of the weight to be given the various pieces of evidence and the sole judge of the various witnesses' credibility. The court then advised the jury that a witness's credibility might be assessed by considering such factors as the witness's interest or lack of interest in the outcome of the proceeding, the clarity of the witness's recollection, the witness's demeanor, his or her opportunity for observation, and the overall reasonableness of the witness's testimony. Walker maintains that this latter advice purporting to tell the jury how to carry out its role amounted to a judicial invasion of the jury's province and thus undermined the integrity of his trial. Again, Walker did not preserve this issue by means of a timely objection, and so our review is limited under RCr 10.26 to asking whether the “how to” portion of the trial court's preamble was clearly improper, prejudiced Walker, and was so contrary to our ideal of fair and impartial proceedings as to be manifestly unjust. Brown v. Commonwealth, 313 S.W.3d 577, 595 (Ky. 2010). Walker attempts to evade this strict standard by asserting that the trial court's error was of constitutional magnitude—a violation of sections 7 and 11 of the Kentucky Constitution—but even alleged constitutional errors, if unpreserved, are subject to palpable error review. Jones v. Commonwealth, 319 S.W.3d 295, 297 (Ky. 2010). Since the alleged error here does not meet the palpable error standard, it does not entitle Walker to relief.

As Walker correctly notes, in jury trials the practice in Kentucky, since statehood it appears, has been to disapprove judicial comment on the evidence and to leave exclusively to the jury the finding of facts. Allen v. Kopman, 32 Ky. 221, 2 Dana 221 (1834); Howard v. Coke, 46 Ky. 655, 7 B.Mon. 655 (1847); Cross v. Clark, 308 Ky. 18, 213 S.W.2d 443 (1948); Allen v. Commonwealth, 286 S.W.3d 221 (Ky. 2009). Although we reject Walker's suggestion that this practice of eschewing judicial comment is a constitutional requirement,2 it is nevertheless firmly rooted in ouR common law, as noted, and in our rules. RCr 9.54 and 9.58, for example, provide that the court shall decide and instruct on questions of law. Implicit in those provisions is the understanding that questions of fact are for the jury.

Notwithstanding, then, the broad discretion accorded trial courts to control the proceedings before them, Transit Authority of River City (TARC) v. Montgomery, 836 S.W.2d 413 (Ky. 1992), and the obvious desirability of giving jurors at the outset of trial some idea of what to expect and what will be expected of them, we agree with Walker that the trial court's instructions regarding how credibility is to be assessed strained, at least, the line judicial comment is not to breach. In Stewart v. Commonwealth, 9 Ky.Op. 793, 794 (1877), our predecessor Court considered an instruction the trial court had given at the close of proof, in which the jury were told that they were the judges of the credibility of the witnesses and the weight of the evidence, and in determining these questions they should take into consideration the demeanor of the witnesses on the witness stand, their intelligence or

2 Section 11 of our Constitution guarantees criminal defendants prosecuted by indictment or information “a speedy public trial by an impartial jury of the vicinage.” Judicial commentthreatens not the impartiality of the jury, however, which is sought to be assured by voir dire, but possibly the jury's independence. Section 7 of our Constitution provides that “[t]he ancient mode of trial by jury shall be held sacred, and the right thereof remain inviolate, subject to such modifications as may be authorized by this Constitution.” The “ancient mode” of trial by jury is generally regarded as the common law practice in England, and particularly that practice immediately prior to the adoption of the federal constitution. Wendling v. Commonwealth, 143 Ky. 587, 137 S.W. 205 (1911). It so happens that the English common law judges regularly commented on the evidence, even to the extent of offering their opinions to the jury as to weight and credibility. Renee Lettow Lerner, The Transformation of the American Civil Trial: The Silent Judge, 42 Wm. & Mary L.Rev. 195 (Oct. 2000). A plausible argument can be made, therefore, that far from prohibiting judicial comment, Section 7 guarantees it. Robert O. Lukowsky, The Constitutional Right of Litigants to Have the State Trial Judge Comment Upon the Evidence, 55 Ky. L.J. 121 (1966–67). Neither our predecessor Court nor this one, however, has ever read the constitutional provisions as dictating the details of jury practice beyond the requirements, in felony cases, that the jury consist of twelve persons and that its verdict be unanimous. Short v. Commonwealth, 519 S.W.2d 828 (Ky. 1975) (quoting from Wendling, supra). But see Lucas v. Commonwealth, 118 Ky. 818, 82 S.W. 440 (1904) (holding that the court may not direct a verdict of guilty in a criminal case and opining that rules under the old Criminal Code assigning matters of law to the court and matters of fact to the jury were in furtherance of Section 7). We decline to depart from that reading here. [Footnote 1 in original.]

want of intelligence, the relation to or interest in the prosecution or defense, the opportunities or want of opportunities of knowing the facts about which they testified, and that by these tests, and from all the facts and circumstances allowed to go into evidence, they should give to the evidence such weight as they might believe it entitled to.

Although not faulting this instruction as an incorrect statement of the law, the Court nevertheless reversed the appellant's murder conviction because by specifying factors the jury was to consider the instruction risked emphasizing certain items of evidence and suggesting to the jury the court's attitude toward certain witnesses. The “safer and a better practice,” the Court concluded, was “to withhold instructions upon matters relating to the credibility of witnesses and the weight of evidence, or the rules by which the jury should be governed in passing upon either.” Stewart, 9 Ky.Op. at 795.

Similarly, in Barnett v. Commonwealth, 84 Ky. 449, 1 S.W. 722 (1886), the Court addressed an instruction providing that [t]he jury are the sole judges for themselves of the weight of the testimony and credibility of the witnesses, and may attach such weight to any and all parts thereof as they may think proper, and if they believe that any witness or witnesses have willfully sworn falsely as to any material fact, they may, if they deem proper, disregard the entire testimony of such witness or witnesses.

Barnett, 1 S.W. at 723. “Theoretically, this is all true,” the Court allowed, “and yet this Court has repeatedly condemned such an instruction, because it in effect invades the province of the jury.” Id.

Here, of course, the trial court's advice about assessing credibility came before rather than after the witnesses had testified, and no doubt that lessened the risk that the instruction might be perceived as inviting scrutiny of any witness's testimony in particular. Here, too, the trial court took scrupulous care to impress upon the jury that it intended no comment on the evidence and that the jury was to disregard anything that might seem like such a comment. Walker has suggested no way in which the court's pre-opening statement witness credibility remarks might have distorted the jury's findings. We cannot say, then, notwithstanding the tension we have noted between the trial court's practice here and the practice Kentucky courts have long observed, that the court's advice about assessing credibility amounted to a palpable error. Our case law does not appear to have addressed this sort of pre- opening instruction, so we cannot say that the trial court clearly or palpably abused its discretion. Moreover, Walker does not appear to have been prejudiced by the court's comments, much less substantially so; indeed, it cannot reasonably be maintained that the court's facially neutral and carefully chosen comments rendered Walker's trial manifestly unjust. Therefore, Walker is not entitled to relief on this ground.

Walker, 349 S.W.3d at 313-15.

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99.  JURISDICTION.  APPEALS (FINALITY)
MCGLADDERY (JOHN), ET AL.
VS.
HANSEN (BRANDON), ET AL.
OPINION AND ORDER DISMISSING
ACREE (PRESIDING JUDGE)
WINE (CONCURS) AND LAMBERT (CONCURS)
2010-CA-001525-MR
NOT TO BE PUBLISHED
BOONE

ACREE, JUDGE: The issue presented to this Court is whether the Boone Circuit Court erred when it dismissed, with prejudice, the appellants’ claims against the appellees on the ground that appellees were not subject to personal jurisdiction before that court. However, the order from which the appeal is taken is interlocutory and did not include both determinations required by Kentucky Rules of Civil Procedure (CR) 54.02 necessary to convert the interlocutory order into a final and appealable order. Therefore, we dismiss the appeal.

This court is required to raise a jurisdictional issue on its own motion if the underlying order lacks finality. Huff v. Wood–Mosaic Corp., 454 S.W.2d 705, 706 (Ky. 1970). Unfortunately, we recognize a jurisdictional issue in this case and must dismiss the appeal because the circuit court did not make the necessary determination that “there is no just reason for delay.” CR 54.02.

The Kentucky Supreme Court has explained how CR 54.02 operates:

In any case presenting multiple claims or multiple parties, CR 54.02 . . . , vests the trial court – as the tribunal most familiar with the case – with discretion to release for appeal final decisions upon one or more, but less than all, claims in multiple claims actions. In such a case, the trial court functions as a dispatcher. If the trial court grants a final judgment upon one or more but less than all of the claims or parties, that decision remains interlocutory unless the trial court makes a separate determination that there is no just reason for delay. And the trial court's judgment shall recite such determination and shall recite that the judgment is final.

Watson v. Best Financial Services, Inc., 245 S.W.3d 722, 726 (Ky. 2008) (internal citations and quotation marks omitted).

These recitations on the part of the trial court are mandatory:

For the purpose of making an otherwise interlocutory order final and appealable, the trial court is required to determine “that there is no just reason for delay,” and the judgment must recite this determination and also recite that the judgment is final. CR 54.02(1). The omission of one of these requirements is fatal.

Hale v. Deaton, 528 S.W.2d 719, 722 (Ky. 1975).

CAG cannot appeal the dismissal of Fountain Head until the order doing so becomes final. As for now, the order “is interlocutory and subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.” CR 54.02(1).

105.  MEDICAL MALPRACTICE CLAIM (SUMMARY JUDGMENT AND GENUINE ISSUES)
HAYES (MARK)
VS.
ASHLAND HOSPITAL CORPORATION
OPINION AFFIRMING
TAYLOR (PRESIDING JUDGE)
DIXON (CONCURS) AND LAMBERT (CONCURS)
2010-CA-002113-MR
NOT TO BE PUBLISHED
BOYD

TAYLOR, CHIEF JUDGE: Mark Lynn Hayes, II, individually and as administrator of the Estate of Kimberly Carter Hayes, (collectively referred to as appellants) bring this appeal from an October 22, 2010, summary judgment of the Boyd Circuit Court dismissing their medical malpractice action. We affirm.

To prove medical negligence, a plaintiff must demonstrate the standard of care (duty), breach of the standard of care, and that such breach caused injury. See Andrew v. Begley, 203 S.W.3d 165 (Ky. App. 2006). Generally, an expert opinion is required in a medical negligence action to establish the standard of care, breach of such standard, and causation. Jarboe v. Harting, 397 S.W.2d 775 (Ky. 1965); Morris v. Hoffman, 551 S.W.2d 8 (Ky. App. 1977). Our case law has carved out one exception to this rule in medical and professional malpractice actions where the negligence is so apparent that a layperson with general knowledge would have no difficulty in recognizing the malpractice. Stephens v. Denison, 150 S.W.3d 80 (Ky. App. 2004).

Accordingly, there being no genuine issue of material fact as to causation of death, the circuit court properly rendered summary judgment dismissing appellants’ medical malpractice claim.

107.  TORTS. FARM ANIMAL ACTIVITIES ACT.
BIESTY (THOMAS)
VS.
FLYNN (WILTON), ET AL.
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
TAYLOR (CONCURS) AND COMBS (CONCURS)
2011-CA-000084-MR
NOT TO BE PUBLISHED
ESTILL

NICKELL, JUDGE: Thomas Biesty has appealed from the Estill Circuit Court’s entry of summary judgment in favor of Wilton Flynn and his brother, Lamon Flynn. He contends the trial court erroneously found the Farm Animal Activities Act1 (“the Act”) insulated the Flynns from liability for Biesty’s injuries sustained while training Lamon’s horse on Wilton’s farm. We affirm.

2012 COA: Jan. 20, 2012 COA Minutes

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

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PUBLISHED DECISIONS OF COA:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

IF YOU WANT

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

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

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

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

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

2012 COA: Jan. 13, 2012 COA Minutes

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

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

PUBLISHED DECISIONS OF COA:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

IF YOU WANT

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

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

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

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

 

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

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

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

PUBLISHED DECISIONS OF COA:

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

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

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

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

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

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

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

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

TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

IF YOU WANT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

2011 SCOKY and COA Combined Minutes Binder

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

Click on this link to Download 2011_SC_MIN_Binder.

Click on this link to Download 2011_COA_Min_Binder.

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PUBLISHED DECISIONS OF COA:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

IF YOU WANT

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

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

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

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

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

STANDARDS OF REVIEW: DIRECTED VERDICT AND INSTRUCTIONS

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

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

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

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

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

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

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

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

PUBLISHED DECISIONS OF COA:

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

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

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

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

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

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

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

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

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

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

STATUTORY INTERPRETATION:

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

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

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

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

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

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

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

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

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

RETROACTIVE STATUTES:

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

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

TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

IF YOU WANT

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

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

SEE SYNOPSIS ABOVE.

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

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

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

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

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

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

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

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

December 9, 2011 COA Minutes -- Nos. 1117-1130 (14 decisions; 2 published)

December 9, 2011 COA Minutes --  Nos. 1117-1130 (14 decisions; 2 published)

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

PUBLISHED DECISIONS OF COA:

1124. REAL PROPERTY. FORECLOSURE. DEFAULT JUDGMENT.
HOARD (SHERRY E.)
VS.
OCWEN LOAN SERVICING, LLC
OPINION VACATING AND REMANDING
MOORE (PRESIDING JUDGE)
NICKELL (CONCURS) AND THOMPSON (CONCURS)
2010-CA-001823-MR [[link corrected!]]
TO BE PUBLISHED
JEFFERSON

MOORE, JUDGE: Sherry E. Hoard appeals a judgment of foreclosure from Jefferson Circuit Court in favor of Ocwen Loan Servicing, LLC. After careful review, we vacate and remand for further proceedings.

his appeal followed, and among the issues Hoard raises before us, the dispositive issues are: 1) the nature of Ocwen’s April 12, 2010 motion as it relates to Hoard; and 2) whether Ocwen’s motion was properly converted into a motion for summary judgment.
As to the first issue, Ocwen’s motion was not for judgment on the pleadings, per CR 12.03; rather, it was by its own strict terms a motion for default judgment, per CR 55.01. A trial court may properly enter a default judgment in two circumstances: (1) when a defendant does not appear at all; or (2) when a defendant who has appeared in the action fails to defend as the Rules require. CR 55.01. (“When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, the party entitled to a judgment by default shall apply to the court therefor.”). Here, Hoard did not fail to plead because she filed an answer. Moreover, nothing in the record or from
the trial court indicates that Hoard’s answer was in any way deficient.

Accordingly, the trial court could not have properly entered default judgment against Hoard and, if it had, it would have erred in overruling Hoard’s motion to set it aside.
As to the second issue: unlike CR 12.02 and CR 12.03, nothing in CR 55.01 allows a motion for default judgment to be converted into a motion for summary judgment. Indeed, a motion for default judgment is not even a proper vehicle to test the legal sufficiency of pleadings, Kearns v. Ayer, 746 S.W.2d 94, 95 (Ky. App. 1988), let alone the strength of the evidence supporting those pleadings.

In short, we are left with the conclusion that the trial court could not have relied upon Ocwen’s motion as a basis for entering summary judgment against Hoard, and that it did so instead upon its own motion. In fairness, this Court has recognized that a trial court may grant summary judgment sua sponte, but

this authority is limited to those situations where [(1)] a motion for summary judgment has been made by some party to the action, [(2)] the judge has “all of the pertinent issues before him at the time the case is submitted,” [Green v. Bourbon County Joint Planning Comn., 637 S.W.2d 626, 630 (Ky. 1982)] and [(3)] “where overruling the [movant's] motion for summary judgment necessarily would require a determination that the [non-moving party was] entitled to the relief asked.” [Collins v. Duff, 283 S.W.2d 179, 183 (Ky. 1955) (Emphasis added)].

Storer Communications of Jefferson County, Inc. v. Oldham County Board of
Education, 850 S.W.2d 340, 342 (Ky. App. 1993).

However, like the Storer Court, we find no authority that allows a trial court to circumvent the civil rules and enter summary judgment sua sponte where, as here, the legal issues have not been submitted for determination. Id.

For these reasons, the Jefferson Circuit Court’s judgment in favor of Ocwen and against Hoard is hereby vacated, its order of sale relating to that judgment is similarly vacated, and this matter is remanded for further proceedings not inconsistent with this opinion, including, but not limited to, addressing the issue of Ocwen’s standing.

1130.  APPEALS. TERMINATION OF PARENTAL RIGHTS. FAILURE TO JOIN INDISPENSABLE PARTY, THE CHILD. RESULTS IN DISMISSAL OF APPEAL
W. (A.M.)
VS.
CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY
OPINION AND ORDER DISMISSING
KELLER (PRESIDING JUDGE)
COMBS (CONCURS) AND VANMETER (CONCURS)
2011-CA-001441-MR
TO BE PUBLISHED
PIKE

KELLER, JUDGE: This appeal is from an order terminating the appellant’s parental rights. It is before the Court at this time on the motion of the appellee Cabinet for Health and Family Services to dismiss the appeal for failure to join the child as a party.

Having considered the motion to dismiss and the response, and having been otherwise sufficiently advised, the Court ORDERS that the motion to dismiss be GRANTED and that this appeal be DISMISSED for failure to join a necessary and indispensable party to the appeal. See Nelson County Bd. of Educ. v. Forte, 337 S.W.3d 617 (Ky. 2011); Lassiter v. American Express Travel Related Services Co., Inc., 308 S.W.3d 714 (Ky. 2010).

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

TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

IF YOU WANT

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

 NONE.

December 2, 2011 COA Minutes -- Nos. 1099-1116 (18 decisions; 3 published)

December 2, 2011 COA Minutes --  Nos. 1099-1116 (18 decisions; 3 published)

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PUBLISHED DECISIONS OF COA:

1103.  PRODUCTS LIABILITY.  INHERENTLY DANGEROUS CONDITION.  RE FAILURE TO HAVE ADEQUATE REARVIEW ON VEHICLE.
MESSERLY (SANDRA DENISE), ET AL.
VS.
NISSAN NORTH AMERICA, INC., ET AL.
OPINION REVERSING AND REMANDING
CAPERTON (PRESIDING JUDGE)
WINE (CONCURS) TAYLOR (DISSENTS AND WILL NOT FILE SEPARATE OPINION)
2010-CA-000717-MR
TO BE PUBLISHED
BOONE

CAPERTON, JUDGE: The Appellants, Sandra and Curtis Messerly, appeal from the April 12, 2010 order entered by the Boone Circuit Court granting Appellees’ (hereinafter “Nissan”) motion for summary judgment in which the court dismissed the Appellants’ complaint with prejudice. On appeal, the Appellants argue that the trial court improperly granted summary judgment. After a thorough review of the parties’ arguments, the record, and the applicable law, we reverse and remand this matter for further proceedings.

The essential facts of this case are not in dispute. Appellant Sandra Messerly and her two children were outside on April 15, 2005, when she decided to move her 2002 Nissan Xterra mid-size sport utility vehicle from a concrete pad behind her home to make more room for the children to play. Sandra left Carter, age five weeks, strapped into his stroller just outside the open garage door. Foxx, her nineteen-month-old son, was in the garage sitting on his father’s ATV. Sandra started the car, checked her mirrors, and looked over her shoulder, but never looked into the garage to check on her children. Unfortunately, Foxx left the ATV and moved to a location behind the vehicle Sandra was operating. As Sandra was backing up, she hit Foxx with the right side of the Xterra. Foxx sustained fatal injuries.
Thereafter, Sandra and Curtis Messerly sued Nissan alleging that the 2002 Xterra was defective and negligently designed because it was not equipped with a rearview camera or back-up sensors. Nissan moved for summary judgment on the ground that the 2002 Xterra was not defective or unreasonably dangerous as a matter of law. Nissan argued that the risk of striking children while backing a vehicle is an obvious, well-understood risk of operating any passenger vehicle and is inseparable from the product’s inherent characteristics.

On appeal, the Appellants present three arguments, namely: (1) a genuine issue of material fact exists as to whether the design of the Nissan Xterra was unreasonably dangerous and that the trial court erred when it ruled that Nissan was entitled to judgment as a matter of law; (2) Texas federal courts have allowed two similar wrongful death backover cases to be tried by a jury, despite a Texas statute that creates a presumption of non-defectiveness where a vehicle meets government safety standards; and (3) the reasoning of the trial judge in deciding to grant summary judgment in favor of the defendants was inappropriate because the video recordings of court hearings show that the judge made factual findings that were not based on any evidence in the record, that the judge conducted an independent investigation of the blind zone on his own vehicle, and ignored Kentucky law on summary judgment.

The Appellees present three counter-arguments, namely: (1) the Nissan Xterra was not unreasonably dangerous as a matter of law; (2) Appellants’ evidence did not create any relevant and material questions of fact; (3) criticism of the trial court is unjustified and irrelevant. With these arguments in mind we now turn to our applicable standard of review.

We believe that a more proper characterization of these numerous arguments presented by the parties concerning this issue is whether the trial court erred by granting summary judgment to Nissan, i.e., whether the risk of a backover injury in the 2002 Xterra was a question for the jury in light of the evidence presented by the parties and our laws.
In Montgomery Elevator Co. v. McCullough by McCullough, 676 S.W.2d 776 (Ky. 1984), the Kentucky Supreme Court explained this Commonwealth’s approach to products liability law:
The fundamental shift in products liability law from a negligence standard to the new theory expressed in § 402A of the Restatement (Second) of Torts occurred in Kentucky in 1966 when § 402A was adopted in Dealers Transport Co. v. Battery Distributing Co., Ky., 402 S.W.2d 441 (1966). The shift is from the conduct of the actor, which is the problem in negligence cases, to the condition of the product. This is the “special liability” in § 402A of persons engaged in the business of manufacturing or selling products and the standard for such liability is if the product is “in a defective condition unreasonably dangerous to the user or consumer . . . .”

In Nichols, [Nichols v. Union Underwear Co. Inc., 602 S.W.2d 429 (Ky. 1980)] we arrived at a simple standard for the trier of fact to use to apply the words in § 402A. The manufacturer is presumed to know the qualities and characteristics, and the actual condition, of his product at the time he sells it, and the question is whether the product creates “such a risk” of an accident of the general nature of the one in question “that an ordinarily prudent company engaged in the manufacture” of such a product “would not have put it on the market.” . . . Considerations such as feasibility of making a safer product, patency of the danger, warnings and instructions, subsequent maintenance and repair, misuse, and the products' inherently unsafe characteristics, while they have a bearing on the question as to whether the product was manufactured “in a defective condition unreasonably dangerous,” are all factors bearing on the principal question rather than separate legal questions. In a particular case, as with any question of substantial factor or intervening cause, they may be decisive.
Montgomery Elevator Co. at 780-781 (boldface emphasis added).

We believe that Montgomery Elevator elucidated the considerations
for the trier of fact, i.e., the jury, when determining whether a product was manufactured “in a defective condition unreasonably dangerous.” While the parties argue extensively about the obviousness of the danger, i.e., the patency of the danger, and whether as a matter of law the court could decide such questions, Montgomery Elevator clearly places this decision in the purview of the jury in the case sub judice. We agree with Appellants that the evidence presented to the trial court presented a jury question in light of Montgomery Elevator. Thus, the trial court erred in granting summary judgment to Nissan. As such, we decline to address the parties’ remaining arguments.
In light of the aforementioned, we reverse and remand this matter for further proceedings.

1108.  EMPLOYMENT LAW.  WRONGFUL TERMINATION.
PATTON (GRACE)
VS.
POLLARD (ROBERT), ET AL.
OPINION AFFIRMING IN PART AND REVERSING IN PART
WINE (PRESIDING JUDGE)
COMBS (CONCURS) AND STUMBO (CONCURS)
2010-CA-001404-MR
TO BE PUBLISHED
KNOTT

WINE, JUDGE: Grace Patton appeals from a summary judgment of the Knott Circuit Court dismissing her claims against Robert Pollard, Harold Combs, and the Knott County Board of Education, et al., (the Appellees) for retaliation and wrongful termination, violation of her First Amendment rights to free speech, breach of contract, promissory estoppel and violation of applicable statutes. Upon review, we reverse the summary judgment of the Knott Circuit Court in part and affirm in part, albeit on different grounds than those stated by the trial court.

1112.  CRIMINAL PROCEDURE.  MIRANDA.
DIKE (OLIVIA)
VS.
COMMONWEALTH OF KENTUCKY
OPINION REVERSING AND REMANDING
MOORE (PRESIDING JUDGE)
STUMBO (CONCURS) AND WINE (CONCURS)
2010-CA-001846-MR
TO BE PUBLISHED
GRAVES

MOORE, JUDGE: Olivia Dike appeals the judgment of the Graves Circuit Court following her conditional guilty plea to the charges of First Degree Possession of Methamphetamine, first offense; and Possession of Drug Paraphernalia, first offense. After a careful review of the record, we vacate the judgment against Dike because the circuit court erred in failing to suppress her statement and the evidence found as a result of her statement.

Pursuant to the reasoning in Smith, Officer Farmer’s interrogation of Dike about the drugs and needles was “not made in relation to any quantifiable public safety threat,” as she was found in a private residence with those items, rather than out in public. Smith, 312 S.W.3d at 360. Therefore, the public safety exception does not apply to Dike’s case and the circuit court erred in failing to suppress both her statement and the evidence that was discovered based upon her statement. Moreover, because that evidence provided the basis for her charges in this case, we cannot say that the error was harmless, and the Commonwealth makes no argument that it was harmless error.

Accordingly, the judgment of the Graves Circuit Court is reversed and the case is remanded.

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TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

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Published. See products liability decision above.

Nonpublished:  None.