LawReader publishes synopsis of all Ky. Ct. of Appeals cases issued July 21, 2006

Important cases issued by Ky. Court of Appeals on July 21, 2006.  By subscribing to www.lawreader.com, for only $34.95 per month, you can read the complete synopsis and call up the full text of each case.

In the 37 cases released at 10 AM on July 21, the court held:
1 KRS 527.040, only requires the Commonwealth to prove the fact of a defendant’s prior conviction, not its validity
2 sovereign immunity does not shield the Commonwealth or its agencies from complaints for damages under the Civil Rights Act.
3 CR 60.02 requires that motions to set aside final judgment be filed within a reasonable time, or on grounds (a), (b) and (c), within one year of the  entry of judgment
4 a 50% contingency fee does appear at first blush to be rather high, William Jr. nevertheless entered into the contract with Dodd, and Dodd certainly performed work on William Jr.’s behalf pursuant to the contract.
5 we are compelled to regard his failure to file a responsive brief here as a confession of error, pursuant to CR 76.12(8)(c)(iii).
6 appellant failed to allege how he suffered prejudice resulting from the general allegations of ineffective assistance of trial counsel
7 the trial court improperly treated spouses disability e benefits as marital property
8 TO BE PUBLISHED: DUI DEFENDANT WAS WRONGFULLY DENIED REASONABLE CHANCE TO GET SECOND BA TEST….ONE STOP RULE HELD IMPROPER…COMMONWEALTH COULD STILL GO TO TRIAL WITHOUT THE BA TEST EVIDENCE
9 Unless an individual in the military manifests an intent to do otherwise, the individual will maintain residence from the state he has left “since he has no choice as to where he goes, the time he can remain, or when he shall return.?
10 a court must treat appreciated value as marital property subject to equitable division
11 A movant is not automatically entitled to an evidentiary hearing on an RCr 11.42 motion unless there is an issue of fact which cannot be determined on the face of the record.
12 The pooling and servicing agreement listed all loans
transferred and included the Sanderses’ loan; the loan, therefore, was encompassed in the transaction
13 even if Malone’s new version of events could be considered newly discovered evidence, such evidence is insufficient to sustain an
RCr 11.42 motion
14TO BE PUBLISHED: a trial court faced with a motion to dismiss on forum non conveniens grounds is obligated to consider whether the statute of limitations has run under the law in the alternate forum state
15 standard of review for admission of evidence is whether there has been an abuse of discretion.
16 Wehner’s complaint was filed outside the limitations of KRS 304.39-230
17 We will not disturb the circuit court’s decision as to the ineffective assistance of counsel unless that decision is clearly erroneous.
18 Combs set forth a six-factor test for analyzing whether the cohabitation of a spouse who is
receiving maintenance entitles the obligor to a termination of maintenance.
19 There are no facts presented by Rogers that indicate
he was incompetent either at the time of the offense or when he entered his plea.
20 the totality of the circumstances provides the basis for an “articulable and reasonable belief? of criminal activity.
21 Any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration . .
22 defendant was not entitled to the “street time? credit because the provision expired on June 30, 2004
23 An attorney is liable to a third person for her negligence only if that person was intended to be benefited by her performance.
24 Solomon was not entitled to an evidentiary hearing as the record refuted his allegations of ineffective assistance of counsel,
25 TO BE PUBLISHED: KRS 403.212(2)(g)(4) is Not unconstitutional as a violation of equal protection. It does not favor prior-born children over later-born children
26 testimony to be impermissible must  originate from a question lacking a factual basis
27 appellant had failed to demonstrate that his trial counsel’s performance fell within the Strickland standard for assessing ineffective assistance of counsel
28 that expert testimony is required in a malpractice case to show that the defendant failed to conform to the required standard and that such failure was a causative factor
29 an arresting officer’s state of mind is irrelevant to the existence of probable cause to arrest, and that the arresting officer’s subjective reason for making the arrest need not be the criminal
offense as to which the known facts provide probable cause.
30 There is nothing advanced in this proceeding that was not, or could not have been, presented in Gibbins’ previous attacks on his conviction and therefore the trial court correctly denied relief without a hearing.
31 because Johnson’s disability resulted from his unreasonable failure to follow medical advice, it is not compensable pursuant to KRS 342.035(3).
32 The order denying visitation fails to address the issue of whether allowing in-person visitation while Appellant is incarcerated would endanger the child
33 “the 180-day time period in Article III(a) of the IAD does not commence until the prisoner’s request for final disposition of the charges against him has actually been delivered to the court and prosecuting officer of the jurisdiction that lodged the detainer against him.?
34 even if the drug screen results had not been admitted, we do not believe that, upon exclusion of this evidence, there is a substantial possibility
that the outcome of the proceedings would have been different.
35 Simply because there is evidence to support a finding in the appellant’s favor, the decision will not be reversed unless there is no substantial evidence of probative value to support the decision.
36 We agree with the Board that the order ruling on the motion to reopen and assigning the claim for further adjudication is an interlocutory order…thus it is not appealable..
37 we cannot conclude that the ALJ abused his discretion in concluding that ARH was without reasonable grounds in objecting to the program of therapy and testing proposed by Dr. Muha

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