Latest opinions of Ky. Ct. of Appeals & Sup. Ct. with LawReader synopsis

LawReader has posted 25 opinions with synopsis for the Ky. COURT OF APPEALS FOR SEPT. 8, 2006  

Also 59 Decisions with synopsis issued by the KY. SUPREME COURT FOR AUGUST, 2006 .

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Court of Appeals- cases Sept. 9, 2006:

 Case No.

1 the jury was not sworn, the law is clear that jeopardy had not attached

2 Because appellant failed to file appeals from the earlier orders setting child support and the CR 60.02 motions raised issues that could have been raised on appeal, the appeals herein are dismissed.

3 …because Vincent Thomas had filed his appearance as trial counsel, and had been the attorney primarily handling the filing of documents on behalf of Discover Bank, Wilson was also required to send notice of the hearing to him- court’s dismissal set aside

4 A court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.?

5 An attorney fee cannot be fixed with arithmetical accuracy. The factors to be considered are well summarized in Axton v. Vance, (standards are set out).  -  , we must also presume that the legislature did not intend to cloak Ky. Lottery Commission with sovereign immunity.

6 CHFS, did make a reasonable accommodation; hence, summary judgment dismissing that claim was also proper.  —  …the trial court improperly ruled that Burkich failed to exhaust her administrative remedies under KRS Chapter 18A.

7 the district court acted appropriately and in accordance with its statutory duties in transferring the juvenile cause to circuit court.

8 there was substantial evidence to support the court’s conclusion that Glenna was entitled to an award of maintenance

9 summary judgment upheld – , there is no evidence to support a finding that Republic  Bank owed a fiduciary duty to Millennium and its principal officers.

10 there were no genuine questions of material fact as to the obviousness of the hazard and the reasonableness of RAA’s precautions.

11 the trial court properly considered evidence of the parties’ course of performance, course of dealing and the usage of trade to interpret the contract. – that Thrift Bit was only entitled to recover damages for the 2000 contract year.

12 electrical cords affixed to floor of a doorway were an open and obvious hazard and not unreasonably dangerous

13 amendment of indictment did not have the effect of charging a new offense in the absence of a showing of prejudice

14 an ordinance which lists a road segment length shorter than that listed in an earlier ordinance does not operate as a discontinuation of the road segment as a county road.

15 a defendant is required to avail himself of RCr 11.42 while in custody under sentence or on probation, parole or conditional discharge, as to any ground of which he is aware, or should be aware, during the period when this remedy is available to him

16 The court concluded that Davis’s predecessor in title acquired her lot from the parties’ common grantor before the adjacent lot was acquired by appellants’ predecessor in title, and that it follows as a matter of law that Davis’s title rights are superior and any overlaps in the properties’ legal descriptions must be decided in her favor.

17 TO BE PUBLISHED :Generally, a contract of adhesion is a standardized

contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it.

18 “[F]or a mistrial to be proper, the harmful event must be of such magnitude that a litigant would be denied a fair and impartial trial and the prejudicial effect could be removed in no other way

19 the trial court erred by failing, upon remand, to conduct an evidentiary hearing on the condemnation,

20 there exists substantial evidence of a probative value to support the Commission’s finding that Berryman voluntarily quit her employment, thus disqualifying her from receiving unemployment benefits

21 The record is conflicting as to whether Kelly provided the answers to Osborne’s questions, or whether Osborne provided the answers himself. This issue goes directly to the question of whether Kelly made statements in the application with which she later allegedly failed to abide.

Summary judgment set aside.

22 …an alternative-dispute resolution plan that provides different rights than those set out in KRS 342.020 is not necessarily invalid as long as the plan does not diminish employee rights.

23 11.42 motion denied

24 that the ALJ’s decision on remand is supported by substantial evidence

25 TO BE PUBLISHED : A tryout is for the benefit of the employer, as well as the applicant, and if it involves a hazardous job we see no valid reason why the applicant should not be

entitled to the protection of the [workers’ compensation] statute.

Kentucky Supreme Court Decisions for August 2006:
Important cases:


1 Sleep deprivation does not make confession involuntary


3 For a gift to be delivered, it must be shown that the owner parted with dominion and control over the gift

4 neither Appellant nor his wife ever expressly invoked the spousal testimony privilege,

5 A public nuisance is not the subject of a suit by a private individual, unless he has sustained some special injury thereby

6 the defendant was unlawfully arrested in his home, his statement was nonetheless admissible because it was made several hours after the arrest at the police station and could not be considered the product of the unlawful entry

7 Even if a juror should have been removed for cause, such error does not violate the constitutional right to an impartial jury if the person did not actually sit on the jury

8″in order for Miranda rights to be invoked, there must be (1) custody and (2) interrogation”

9 KRS § 23A.205(2) requires the court to find that the Appellant is unable to pay the costs and will be unable to pay the costs in the foreseeable future .

10 While Appellant had at one time moved the trial court to allow the introduction of mitigation evidence under the truth-in-sentencing statute, we believe that request was effectively withdrawn when he subsequently filed a motion in limine requesting “that the retrial be limited to the PFO phase and not a full truth-in-sentencing proceeding .”

11″[c]ontrary to the language of RCr 9.48, the use of the word `shall’ in KRE 615 makes exclusion mandatory and removes the separation of witnesses from the trial judge’s discretion in the absence of one of the enumerated exceptions.”   ” We went on to hold that the trial court erred when it allowed the victim to sit at counsel table, because the victim did not qualify under exception (3) in KRE 615 .

12 The knives were a link in the chain of proof and were properly admitted into evidence .

13 A trial court may infringe upon the defendant’s right to pursue, an alternative perpetrator theory, if the evidence is “‘unsupported,’ ‘speculative,’

14 the first claim did not rise to the level of palpable error and a proper foundation was laid for admission of the codefendant’s statements

15 It is only when intoxication reaches the state in which one has hallucinations or ‘begins to confabulate to compensate for his loss of memory for recent events’ that the truth of what he says becomes strongly suspect. –   Loss of inhibitions and muscular coordination, impaired judgment, and subsequent amnesia do not necessarily (if at all) indicate that an intoxicated person did not know what he was saying when he said it.

16 Def.  was charged with four separate counts of theft by unlawful taking . The three guns and the other items were stolen from the same residence at the same time, and under our decisions only one theft occurred.”

17 Facts support conviction

18 IAD did not commence until the prisoner’s request for final disposition of the charges against him had actually been delivered to the court or prosecuting officer of the jurisdiction that had lodged the detainer against him.

19″any attempt to run the persistent felony offender conviction either concurrently with or consecutively to the underlying offense on which it is based . . . is improper.”

20 the reading of the entire indictment against Appellant was NOT unduly prejudicial

21 Def. did not meet his burden of proof on the issue of undisclosed juror bias,

22 Harmless error

23 evidence of propensity for violence not error

24 although he entered through a gate, he knew that he did not have a right to enter the property because it was fenced, which gave notice that the land was not to be entered upon

25 trial court did not abuse its discretion in finding the kidnapping exemption statute to be inapplicable in this case.

26 The ultimate decision to shackle a defendant rests within the sound discretion of the trial

court, and will only be overturned on appeal upon a demonstration that this discretion was abused.

27 The jury took an ample amount of time in deliberating

28 KRS 342.185 does not operate as a statute of repose in gradual injury claims and that a rule of discovery applies

29corrected version of #28

30 Court of Appeals misconstrued KRS 342.315.

31 this Court has consistently taken the position that “an appellate court cannot reevaluate the evidence or substitute its judgment as to the credibility of a witness for that of the trial court and the jury

32 The trial judge did not err when she refused to suppress the inculpatory statements made by Duncan to police.

33 ALJ did not err by considering impairment due to a pre-existing lumbar condition

34 Reconsideration of award denied

35 Award upheld

36 another employer was unlikely to accommodate her condition, and that her physical condition made it unlikely that she would be able to earn the same or a greater wage for the indefinite future .

37 DeLeon sustained a work-related injury resulting in an  permanent partial impairment

38 the record does not establish conclusively whether the requirements of due process were met, this matter must be remanded to the trial court to hear evidence and make findings of fact

39 The statute is clear-it does not require the physicians to be university employees or, in the words of the majority opinion, “affiliated with” the medical schools.

40 Award affirmed

41 vacated and remanded for additional findings regarding KRS 342.730(1)(c)1 but affirmed in all other respects

42 Since Dept. of Revenue has failed to show it lacks an adequate remedy by appeal, we affirm the denial of the petition for an extraordinary writ

43 The statute is clear-it does not require the physicians to be university employees or, in the words of the majority opinion, “affiliated with” the medical schools.

44 Denial of order denying his motion to proceed in forma pauperis

45 Attorney Robert Meredith, publicly reprimanded

46 Attorneys David Weinberg be publicly reprimanded for his violations of SCR 3.130-1 .3, SCR 3 .130-1 .4(a) and (b), and SCR 3.130-5.1(a) and (b). Moreover, it is ordered that Deno Capello be publicly reprimanded for his violations of SCR 3.130-1 .3, SCR 3 .130-1 .4(a) and (b), and SCR 3.130-5 .1(a) and (b)

47 same


49 Attorney Melbourn Mills temporary suspension

50 Temporary Suspension of William J . Gallion,


51 Attorney Steven F. Claypoole suspended for 30 days

52Temporary Suspension against Shirley A. Cunningham, Jr

53Rodney McDaniel suspended 30 days,

54Steve P. Robey, is publicly reprimanded

55Bryan K. Burlew suspended for 181 days

56 Alecia Lococo suspended for six months

57 Attorney Jason Michael Nemes fined

58 a writ of mandamus is available to a petitioner only when there is no other adequate remedy by appeal,

59 Maxwell Hammond suspended from practice of law

KBA DECISIONS (Discliplinary Rulings)

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