Kentucky Court Report - SCOKY & COAKY

Employee failed to establish she was similarly situation to male employee in discrimination claim: EDUCATION CABINET V. SOLLY (SC 5/22/2008)

EDUCATION CABINET V. SOLLY
EMPLOYMENT:  DISCRIMINATION
2006-SC-000858-DG.pdf
PUBLISHED: REVERSING
OPINION BY NOBLE; SCHRODER NOT SITTING
FROM FRANKLIN COUNTY
DATE RENDERED: 5/22/2008

This case arises from an administrative appeal taken by Appellee, Donna Solly, against the Commonwealth of Kentucky Education Cabinet, formerly known as the Cabinet for Workforce Development, and the Kentucky Technical Education Personnel Board. Appellee was employed as a limited-status teacher at Caldwell Area Technology Center. Her employment was not renewed on August 22, 2002 after she was given notice in a non-renewal letter dated August 8, 2002. She alleges that her non-renewal was due to discrimination on the basis of sex. Because Appellee has not established that she was similarly situated to a male employee with whom she had previously had an affair, and because the reasons stated for her non-renewal are sufficiently non-discriminatory in any event, the Court of Appeals is reversed.

Mike Stevens, Ed.

Whether mortgagee waived its right to compel arbitration through litigation-conduct waiver was an issue for the courts rather than the arbitrators: AMERICAN GENERAL HOME EQUITY, INC. V. KESTEL (SC 5/22/2008)

AMERICAN GENERAL HOME EQUITY, INC. v. KESTEL
ARBITRATION:   Litigation conduct and waiver of arbitration
2006-SC-000830-DG.pdf
PUBLISHED: REVERSING AND REMANDING
OPINION BY MINTON; NOBLE NOT SITTING
FROM MERCER COUNTY
DATE RENDERED: 5/22/2008

American General Home Equity, Inc., filed a mortgage foreclosure action in circuit court against Teresa Kestel. Kestel counterclaimed, asserting fraud and federal and state statutory claims under the Truth in Lending Act and the Kentucky Consumer Protection Act. The trial court denied American General's motion to compel arbitration on Kestel's counterclaims, finding that no arbitration agreement existed between American General and Kestel. A majority of the Court of Appeals panel hearing the case on appeal disagreed with the trial court about the absence of an arbitration agreement; but the panel upheld the denial of American General's motion to compel arbitration anyway, holding, instead, that American General had waived its arbitration rights through its “nine-month delay in moving for arbitration” following the filing of Kestel's counterclaims.

SCOKY granted discretionary review in order to provide guidance to courts and counsel concerning when a party's litigation conduct amounts to an implied waiver of its rights to enforce a contractual right to arbitration. The Court concluded that the mortgagee's litigation conduct was not clearly inconsistent with asserting contractual arbitration rights and did not waive its right to arbitrate the mortgagor Kestel's counter-claim; and the Court of Appeals erred in determining that American General waived its arbitration rights.  Case was reversed and remanded to the trial court for proceedings consistent with this opinion. This ruling leaves open on remand the possibility that Kestel may, by proper motion, raise her contention that application of the arbitration provisions could, by cost or otherwise, deprive her of an adequate opportunity to present her claims and defenses.  Issue of whether mortgagee waived its right to compel arbitration through litigation-conduct waiver was an issue for the courts rather than the arbitrators.

Mike Stevens, ed.

Devore v. Commonwealth overruled to extent it requires all subsequent sentences for crimes committed while on probation or parole to be run consecutively to each other: PEYTON V. COM (SC 5/22/2008)

PEYTON v. COM
CRIMINAL:  Criminal - KRS 533.060(2)
2006-SC-000343-MR.pdf
PUBLISHED: AFFIRMING IN PART, REVERSING IN PART
OPINION BY SCOTT
FROM HOPKINS COUNTY
DATE RENDERED: 5/22/2008

SC affirmed Defendant's convictions of three counts of first-degree trafficking in a controlled substance and of being a persistent felony offender in the first degree; however, SC reversed 34 year sentence and remanded for a new hearing. In the context of KRS 533.060(2), the language, "the period of confinement for that felony shall not run concurrently with any other sentence," should be construed as meaning that subsequent felony offense(s) committed while on probation or parole may not be run concurrently with the sentence for which the individual is on probation or parole. In the instance of multiple-count subsequent felony offenses committed while on probation or parole, however, these subsequent offenses may be run either consecutively or concurrently, at the court's discretion. Accordingly, SC held that to the extent Devore v. Commonwealth , 662 S.W.2d 829, 831 (Ky. 1984) requires all subsequent sentences for crimes committed while on probation or parole to be run consecutively to each other, it is overruled.

Digested by Scott C. Byrd
Olgin and Byrd

Unexplained fall and presumption of work relatedness in workers compensation cases: AK STEEL V. ADKINS (SC 5/22/2008)

AK STEEL v. ADKINS
WORKERS COMP: Unexplained fall and presumption of work relatedness
2007-SC-000515-WC.pdf
PUBLISHED: AFFIRMING
FROM COA
DATE RENDERED: 5/22/2008

The Claimant fell while attempting to close the door of a coal hopper, hitting her head and injuring her shoulder. She testified that she assumed it was because she lost her footing but could not remember. The Administrative Law Judge referred to cases which establish a presumption of work relatedness if the employee is unable because of the injury to remember how the accident happened, however, KRS 342.720 is the statute which contains the precise situations where the presumption applies. While the case contains a good discussion of the presumption, the Supreme Court considered the circumstantial evidence of work-relatedness as a permissible inference and affirmed on substantial evidence grounds.

Peter Naake, Editor

"Unity rule" for valuation of multiple parcels not followed in Ky condemnation cases: BIANCHI V. CITY OF HARLAN (SC 5/22/2008)

BIANCHI V. CITY OF HARLAN
EMINENT DOMAIN:  "Unity rule" for valuation of multiple parcels not followed in Ky
2006-SC-000895-DG.pdf
PUBLISHED: AFFIRMING
OPINION BY:  ABRAMSON; SCOTT DISSENTING
DATE RENDERED: 5/22/2008

The City of Harlan (“Harlan”) filed petitions to condemn four parcels owned by the Bianchis. The condemned tracts were generally used for parking for its tenants in the neighboring properties. The Bianchis also owned several neighboring properties, most of which were used for retail stores.

The commissioners found a value for the four combined properties, to which both parties filed exceptions. The Bianchis also moved to file a counterclaim seeking compensation for the loss of value their other properties would sustain by the taking of the four properties. A jury awarded the Bianchis $120,000 for taking the four parcels and $43,640 for the lost value of their neighboring properties.

On appeal, the Court of Appeals affirmed the $120,000 award, but reversed the award for lost value because it did not believe the neighboring property could be deemed united for condemnation purposes. The Supreme Court accepted discretionary review.

The Bianchis argued that they were not compensated adequately for the four lots that were taken and that these properties should have been valued as a portion of the Bianchis’ entire holdings. The Court disagreed, stating that the measure of value when a portion of a tract is condemned is the market value of the entire tract immediately before condemnation less the market value of the remainder after condemnation. The Court also stated that the procedure used by the trial court – taking the value of the part taken and adding the value of the harm to the remainder – has been expressly rejected in Kentucky. Moreover, the Court found that the “unity rule,” which sometimes allows two or more parcels to be unified for valuation purposes if it can be shown that they are contiguous and are united in use and ownership, did not apply. The Bianchis had not alleged a necessary or permanent injury to their remaining property or a substantial interference with the continued use of it; injury to business or lost profits is not a proper element of compensation for condemnation. The Supreme Court affirmed the Court of Appeals’ reversal of the judgment on the Bianchis’ counterclaim.

Sam Hinkle

In overruling Sherley v. Commonwealth, SC held double jeopardy not violated when a defendant is convicted of first-degree assault and first-degree rape (involving a serious physical injury to the victim): DIXON V. COM (SC 5/22/2008)

DIXON v. COM
CRIMINAL:  Criminal - Double Jeopardy
2006-SC-000682-MR.pdf
PUBLISHED: AFFIRMING
OPINION BY MINTON
COUNTY: GREENUP
DATE RENDERED: 5/22/2008

Separate convictions for first-degree rape premised on serious physical injury and first-degree assault arising from same physical injury did not violate prohibition against double jeopardy, overruling Sherley v. Commonwealth, 558 S.W.2d 615.

SC affirmed Dixon's convictions and 47 year sentence for first-degree assault, first-degree rape, and first-degree robbery. TC properly denied Defendant's proposed instruction on facilitation to commit first-degree robbery and facilitation to commit first-degree rape. The assault and rape convictions did not violate the prohibition against double jeopardy. In cases like this one, in which the Commonwealth prosecutes a defendant on a charge of first-degree rape under a theory that the victim suffered a serious physical injury, the elements of first-degree rape are as follows: (1) engaging in sexual intercourse with another person (2) by forcible compulsion, (3) which results in the victim receiving a serious physical injury. SC overruled Sherley v. Commonwealth, 558 S.W.2d 615 (Ky. 1977) and held that the prohibition against double jeopardy is not violated when a defendant is convicted of first-degree assault and first-degree rape (involving a serious physical injury to the victim), even if the same serious physical injury to the victim is used to support each conviction.

Digested by Scott C. Byrd
Olgin and Byrd

 

"Other acts" evidence that defendant struck/shook child were admissible as well as autopsy photos: DANT V. COM (SC 5/22/2008)

DANT V. COM
CRIMINAL:  Hearsay; Prior Bad Acts
2006-SC-000505-MR.pdf
PUBLISHED: AFFIRMING
OPINION BY ABRAMSON
COUNTY: HANCOCK
DATE RENDERED: 5/22/2008

SC affirmed Dant's conviction and life sentence for wanton murder. TC did not violated the hearsay rules nor KRE 404(b) when it admitted incriminating testimony. Because the evidence of Dant previously smacking Addryana on the head when she did not mind him could support a "reasonable probability" that Dant also struck Addryana on the head and/or used violence to stop her from crying on the night of her death, SC found that the trial court did not abuse its discretion when it determined that this evidence was relevant under KRE 404(b). Since the probative value of this evidence is not outweighed by its prejudicial effect, SC affirmed the trial court's ruling on the admissibility of Dant's prior abuse of Addryana. The evidence strongly reveals a common element that precedes each act of physical abuse-a crying baby. Despite the fact that each physical act was not identical, because each action was prompted by a crying child, Hall's testimony regarding Dant's prior abuse of Katilyn and Isaac fits within the pattern of conduct exception and was properly admitted at trial. Since Dant was given actual notice of the Commonwealth's intent to introduce KRE 404(b) evidence in time to adequately challenge its admissibility, SC concluded that he did not suffer any prejudice and the trial court did not err in finding that the notice requirement of KRE 404(c) was satisfied.

Digested by Scott C. Byrd
Olgin and Byrd

SC lacked jurisdiction to consider and rule on merits of defendant's unpreserved challenge to constitutionality of violent offender statute: BENET V. COM (SC 5/22/2008)

BENET V. COM
CRIMINAL:  Criminal - Statutory Challenge
2006-SC-000422-MR.pdf
PUBLISHED: AFFIRMING
OPINION BY MINTON
COUNTY: JEFFERSON
DATE RENDERED: 5/22/2008

SC affirmed the judgment sentencing him to twenty years' imprisonment for first-degree sodomy and five years' imprisonment for first-degree sexual abuse, to be served consecutively, for a total of twenty-five years imprisonment. Benet did not properly preserve his argument that KRS 439.3401 ("violent offender statute") is unconstitutional. The Court of Appeals' statement in Sherfey v. Sherfey, 74 S.W.3d 777, 781 n.7 (Ky.App. 2002) that a reviewing court has the power to review improperly preserved "as applied" constitutional challenges must be overruled as being inconsistent with the plain, unambiguous language of KRS 418.075. A defendant automatically becomes a violent offender at the time of his or her conviction of an offense specifically enumerated in KRS 439.3401(1) regardless of whether the final judgment of conviction contains any such designation. TC has the discretion to decline to follow a jury's recommendation regarding whether a sentence should be served concurrently or consecutively, regardless of any parole eligibility implications for a defendant, overruling Smith v. Commonwealth, 806 S.W.2d 647 (Ky. 1991).

Digested by Scott C. Byrd
Olgin and Byrd

Defendant entitled to lesser included misdemeanor instructions: COM V. OLIVER (SC 5/22/2008)

COM V. OLIVER
CRIMINAL:  Criminal - Lesser Included Instruction
2006-SC-000385-DG.pdf
PUBLISHED: AFFIRMING
OPINION BY ABRAMSON; CUNNINGHAM CONCURS IN RESULT ONLY BY SEPARATE OP W/NOBLE JOINING
COUNTY: MCCRACKEN
DATE RENDERED: 5/22/2008

This Court has never expressly addressed whether a criminal defendant is entitled to have the jury instructed on a lesser-included misdemeanor offense which is supported by the evidence but which was time-barred by KRS 500.050(2) at the time of indictment. We now hold that a defendant is entitled to the lesser-included offense instruction and, that by requesting jury consideration of an "expired" misdemeanor, the defendant waives his statute of limitations defense to any resulting conviction. Recognizing that this rule was unavailable at the time of Appellee Stewart Oliver's trial and that the trial court and all parties misperceived the consequences of the defendant's request for expired misdemeanor instructions, we affirm the Court of Appeals' reversal of Stewart Oliver's convictions, albeit on different grounds, and remand this case for a new trial.

Digested by Scott C. Byrd
Olgin and Byrd

Prosecutor's duty to disclose incriminating statement to defendant includes oral and written statements: CHESTNUT V. COM (SC 4/24/2008)

CHESTNUT V. COM
CRIMINAL:  Discovery Violation
2007-SC-000154-MR.pdf
PUBLISHED: REVERSING
OPINION BY SCOTT; ABRAMSON NOT SITTING
JEFFERSON COUNTY
DATE RENDERED: 4/24/2008

Having concluded that the Commonwealth's failure to disclose an incriminating oral statement of the defendant per RCr 7.24(1) impermissibly tainted Chestnut's defense in this case, SC reversed his convictions and 77 year sentence for four counts of burglary in the second degree, receiving stolen property over three hundred dollars, possession of a controlled substance, and illegal possession of drug paraphernalia. Looking at the plain language of RCr 7.24(1) stating that, "the Commonwealth shall disclose . . . any oral incriminating statement . . . made by a defendant," we find that it is apparent from a reading of the language of the rule, that RCr 7 .24(1) was intended to apply to both oral and written statements, which were incriminating at the time they were made. Consequently, to the extent that Berry, and its progeny Partin and Matthews hold that RCr 7.24(1) does not apply to a defendant's oral incriminating statements, they are overruled. Accordingly, we now conclude that nondisclosure of a defendant's incriminating oral statement by the Commonwealth during discovery constitutes a violation of the discovery rules under RCr 7.24(1), since it was plainly incriminating at the time it was made.
Presentation of undisclosed evidence in violation of RCr 7.42(1) under the guise of rebuttal evidence pursuant to RCr 9.42 constitutes reversible error. Because the trial court abused its discretion in allowing the admission of the statements in violation of RCr 7.24(1), and because it reasonably likely that had the evidence been disclosed, Chestnut's defense, and potentially the result, would have been different, the error was not harmless. The trial court committed error in allowing excluded evidence into the jury room during deliberations.

Digested by Scott Byrd, Olgin and Byrd Attorneys