LawReader posts all Ky. Court of Appeals cases released on July 14, 2006

 Lawreader publishes a synopsis for all decisions of the Court of Appeals and Ky. Sup. Court.

This week there were 33 cases.  For full synopsis and full text subscribe to, the best legal research value in America. Only $34.95 per month.

1 KRS 403.200(2), does not require that the court enter findings of fact before determining the amount and duration of maintenance  award

2 failure of defense counsel to advise Appellee of potential deportation consequences was not cognizable as a claim for ineffective assistance of counsel

3 Issues as to all parties not included in dismissal as to one party, therefore, this is not a final judgment and cannot be appealed

4 Even if there was no probable cause for burglary, the arrest was justified by defendant’s fleeing and evading arrest

5 TO BE PUBLISHED: Building owner who warns contractor of dangerous roof, does not need to also warn subcontractor , as duty to warn is fulfilled

6 testimony from a daughter that she had never seen her dad have any illegal drugs in the house opened the door, under KRE 405(b), to cross examination as to specific instances of conduct and to the admission of evidence of her father’s previous guilty plea to drug trafficking

7Adoption procedures, involuntary termination issues discussed.

8Summary upheld. Real estate brokers contract did not impose duty to assist in obtaining financing.

9 the trial court erred in characterizing certain property as marital or nonmarital and failed to make the requisite findings on certain property issues before the court – the character of the property, i.e., whether it is marital, nonmarital, or both, is determined by the source of the funds used to acquire property

10 a social guest is a licensee. It makes no difference however cordially he may have been invited and urged to come  -   fire investigator need not be licensed in this state in order to be allowed to testify as expert witness

11 We remand for a reconsideration of Peter’s motion based upon the actual custody arrangement

12 the rights of a company under a guarantee agreement survive the merger of that company with another, even though the originally-guaranteed company is not the survivor corporation of the merger

13 In deciding whether to strike a juror for cause, the trial court must discern from the totality of the circumstances whether the juror possesses the requisite mental attitude of appropriate indifference.

14 Court can not order warning order fee paid if no party to the action is liable for fee and made party of this action.

15 Defendant has the burden of establishing that there is a reasonable probability that the result of the trial would have been different if the withheld exculpatory evidence were disclosed to the defense

16  TO BE PUBLISHED (condemnation case) KRS 177.081(1) does not violate the separation-of-powers provisions in the Kentucky Constitution.

17 the legislature has defined “employer� as a person having eight or more employees. This court is not at liberty to change the law – therefore dentist not subject to sex discrimination firing claim for discharging assistant who became pregnant.

18 substantial evidence supports the trial court’s ruling

19 Def. was only subject to a misdemeanor, the trial court erred in not dismissing this action for lack of jurisdiction.

20 TO BE PUBLISHED:  Defamation by church: – Although the jury normally determines whether a privilege was abused, a motion for summary judgment is appropriate when the record shows no facts which would lead to the conclusion that the Appellees acted with malice.

21 When challenging trial strategy, an appellant “must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy

22 Yocum was convicted of other offenses that occurred during the “set off� period. As such, we conclude that the court properly enforced the true agreement of the parties and denied Yocum’s motion to have the charge amended to a misdemeanor.

23 the trial court did not err by requiring def. to prove the invalidity of his plea rather than requiring the Commonwealth to prove its validity

24 issue preclusion, a subset of res judicata, “bars the parties from relitigating any issue actually litigated and finally decided in an earlier action.�

25 Mother denied right to relocate to Indiana with child there was no right to relocate, as in Fenwick, on the basis that no primary residential custodian was designated in the case at bar.

26 Medical expert not required. Layman can testify about malpractice when physician who had previously removed patients gall bladder, forgot he had done so, and operated second time to remove the non-existent gall bladder.

27 a defendant’s family situation is relevant to mitigation upon sentencing but failure to object when court refused such evidence meant error was not preserved

28 worker must show that the evidence was such that the finding against him was unreasonable on the basis of reliable, probative, and material evidence contained in the whole record

29 alj decision upheld

30 It is a fundamental, “primary rule of statutory construction that the enumeration of particular things excludes the idea of something else not mentioned.�

31 The test of “objective medical findings� applies to proof of an injury, whereas the proof of causation is within the realm of “reasonable medical probability.�

32 the findings of the ALJ on causation and impairment were supported by substantial medical evidence

33 the claimant in a workers’ compensation claim bears the burden of proving each of the essential elements of the cause of action

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