LawReader publishes ALL decisions of the Ky. Court of Appeals. 52 important decisions handed down this week. Eight cases are published and should be read immediately.

If you rely on West or Lexis you may have to wait months to read these cases and then you will only see 8 of the 52 decisions.

The following is a keynote summary of each case posted by LawReader.  Sign up at www.LawReader.com and read the synopsis and the full text of each case. For only $34.95 a month you can stay current in the law, and impress your colleagues with your knowledge of the latest law. LawReader membership includes all our resources with no extra charges, and with no long term contract required.

1 CONSENT TO SEARCH: The voluntariness of a person’s consent to a warrantless search is a question of fact which must be determined based on the totality of the circumstances
2 DIRECTED VERDICT OF ACQUITTAL LACK OF EVIDENCE: the trial court erred by denying Chadwell’s motion for a directed verdict of acquittal as to this charge. 
3 DIRECTED VERDICT OF ACQUITTAL LACK OF EVIDENCE: it was clearly unreasonable for the jury to find that Swan was guilty of the trafficking charge against him
4 ADVERSE POSSESSION: A party claiming title by adverse possession must show that the possession was so actual and so continuous as to furnish a cause of action every day during the entire period prescribed by the statute
5 SENTENCING: The law holds that a judgment is not final when post-judgment remedies are still available to the parties.  – Where a sentence is not final, the defendant cannot claim that changes to it constituted double jeopardy or were unconstitutional.
6 TO BE PUBLISHED: DOG ORDINANCE: local governing bodies may pass ordinances regulating dogs so long as the provisions are not inconsistent with KRS Chapter 258 – Pit Bull
7 HANDGUN STATUTE: the constitutionality of the Kentucky handgun statute, has been upheld in Posey v. Commonwealth
8 TO BE PUBLISHED: SOVEREIGN AND QUALIFIED IMMUNITY: we reverse that portion of the trial court’s order denying the absolute immunity claim of the Appellant Commonwealth of Kentucky, Transportation Cabinet but affirm the order denying summary judgment on the
qualified immunity claim of Appellant Linda Justice
9 CIVIL RIGHTS ACT-EMPLOYEMENT: Employee is not entitled to the protections of the Civil Rights act because she is not disabled.
10 CHILD SUPPORT MODIFICATION: There is a rebuttable presumption that, unless application of the guidelines to the parties’ circumstances at the time of the motion’s filing results in more than a 15% change in the monthly child support obligation, there has been no material change in circumstances
11 EDUCATION: we believe a cognizable claim exists against a school board for arbitrarily denying a student the opportunity to participate in interscholastic athletics
12 11.42 MOTION: 11.42 motion denied
13 GRAND JURY – JURISDICTION OF CIRCUIT CT.: The fact that a misdemeanor charge was pending in the district court did not deprive the grand jury of its right to indict Smith on felony charges. Once the indictment was issued, the circuit court acquired jurisdiction over the felony offense.
14 11.42 DUTY TO INVESTIGATE: 11.42 motion denied  – A reasonable investigation is not an investigation that the best criminal defense lawyer in the world, blessed not only with unlimited time and resources, but also with the benefit of hindsight, would
conduct.
15 CHILD CUSTODY: the Cabinet and the family court substantially complied with the Indian Child Welfare Act
16 ATTACHMENT/EXECUTION : the trial court should have quashed the attachment/execution because the original judgment had been reversed in part by this Court in the prior appeal
17 TO BE PUBLISHED: PROBABLE CAUSE NOT FOUND: the court erred when it denied his suppression motion and found that probable cause existed for Officer Barrett to enter the motel room
18 BOUNDARY LINE DISPUTE: …in determining boundaries, natural and permanent monuments control all other means of description, with decreasing importance given to artificial marks, courses, distances and area in that order, such that area is the weakest of all the components of a property description
19 EMPLOYMENT DISCRIMINATION: an employer cannot escape liability where an
employee’s discriminatory motive, fed to the non-discriminating decision maker, is the real cause of the adverse employment action
20 SUFFICIENCY OF SEARCH WARRANT: to vitiate a facially sufficient search warrant the materiall fact must have been omitted intentionally or with reckless disregard for the truth and the affidavit plus the omitted facts must not be sufficient to support a finding of probable cause
21 JURY STRIKES: as the juror in question herein did not participate in the trial, Morris cannot claim that he was denied a fair and impartial jury on that basis alone.
22 WAIVER: A legal right may be waived by contract even where such right was statutorily created. A waiver may be either expressed or implied and may also be inferred from the conduct of a party.
23 UNINSURED MOTORIST INSURANCE: the law is clear that UIM coverage under a motor vehicle insurance policy may be stacked when the premium charged for the coverage is based upon the number of vehicles insured
24 11.42 MOTION: 11.42 motion denied: appellant’s allegation of ineffective assistance of trial counsel was clearly refuted upon the face of the record.
25 REVIEW OF ADMINISTRATIVE AGENCY RULING: When substantial evidence exists in the record to support an administrative agency’s factual determination, we have no authority to overturn it
26 JURISDICTION OF CHILD CUSTODY BETWEEN STATES: Kentucky proper forum for child custody dispute
27 APPEAL PROCEDURE: appeal must be dismissed because notice of appeal was not timely filed
28 PRISON DISCIPLINE RIGHTS: “[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings do not apply.?
29 PRISON DISCIPLINE RIGHTS: In prison disciplinary proceedings, due process requires that a disciplinary committee’s decision to impose sanctions for violations of prison rules must only be supported by some evidence in the record
30 AMOUNT AND DURATION OF MAINTENANCE: “unless absolute abuse is shown, the appellate court must maintain confidence in the trial court and not disturb the findings of the trial judge
31 TO BE PUBLISHED: JURISDICTION OF TRIAL COURT ON REMAND: The scope of a lower court’s authority on remand of a case is not measured in terms of its jurisdiction, but by the direction or discretion contained in the appellate court’s mandate.
32 PARENTAL TERMINATION: Kentucky law has long recognized that “[t]he trial court has broad discretion in determining whether the child fits within the abused or neglected category and whether the abuse or neglect warrants termination
33 COLLECTION OF COLLEGE LOAN: the Court finds as a matter of law that it is unreasonable to require student to pay collection costs amounting to 100% of the loan amount (plus late fees and interest). (Note: Fed. Regulation would allow this in some situations.)
34 BAD FAITH INSURANCE SETTLEMENT: Although the harm to Thomas was purely economic, payment on her claim was delayed for almost two years without a reasonable basis to deny the claim, without any investigation, and without any attempt to settle the claim in good faith. The evidence shows that these actions and omissions were an intentional violation of Kentucky law. Punitive damages of $15,000 upheld.
35 PARENTHOOD BY ESTOPPEL (Editor: otherwise known as the “No Good Deed Goes Unpunished Rule?) upheld. Because M.L.H.’s paternity had been established by estoppel, he should not be “relieved of his responsibility as a father
36 EVIDENCE – MARITAL PRIVILEGE: Unlike the adverse testimony privilege of KRE 504(a), the confidential communication privilege does not require a valid ongoing marriage. The confidential communication privilege of KRE 504(b) survives the dissolution of the marriage and may be asserted by a former spouse if the communication occurred during the marriage. –
an extramarital affair cannot be considered a confidential communication under KRE 504(b).
37 UNEMPLOYMENT COMPENSATION: Worker  was discharged for misconduct and is thereby disqualified from receiving unemployment benefits
38 STATUTE OF LIMITATIONS: that medical payments made pursuant to Med-Pay coverage of an (automobile) insurance policy were not equivalent to and are not to be considered BRB or PIP payments so as to toll the statute of limitations found in KRS 304.39-230
39 SENTENCING: the law is clear that a parolee is not entitled to good-time credit for time served on parole when said parole is violated and ultimately revoked
40 SENTENCING: If a defendant breaches a plea agreement, then he is no longer entitled to its enforcement
41 11.42 MOTION: RCr 11.42 motion  filed well outside the three-year time limit to file
42 CONTEMPT POWER: Because the issue presented in the case involved enforcement of a prior order to which appellant is a party, it follows that the circuit court properly exercised
jurisdiction over the appellant.
43 WORKER’S COMP: substantial evidence adduced in the proceedings below supports the ALJ’s decision
44 PRISON DISCIPLILNE: the Department of Corrections can define serious physical injury differently because doing so does not infringe on the statutory rights of criminal defendants charged with a crime under the Kentucky Penal Code and, thus, does not violate KRS 13A.130.
45 TO BE PUBLISHED: APPEAL – KRS 625.110,  FOUND UNCONSTITUTIONAL: we must conclude that KRS 625.110, as currently written,  is unconstitutional to the extent that it prohibits the right of appeal from the denial of a petition to terminate parental rights.
46 GRANDPARENT VISITATION: “[a] fit parent’s [child-rearing] decision must be given deference by the courts, and courts considering the issue must presume that a fit parent’s decision is in the child’s best interest. A custodial parent should encourage a positive relationship between children and grandparents
47 MODIFICATION OF CUSTODY ORDER: two statutes require that a motion to modify a prior custody order made earlier than two years after its date must be accompanied by at least two affidavits.
48 TO BE PUBLISHED: LANDLORD AND TENANT: In the absence of a special agreement to do so, made when the contract is entered into, there is no obligation upon the landlord to repair the leased premises
49 RENEWAL OF DOMESTIC VIOLENCE ORDER: a DVO should not be renewed merely at the request of the petitioning party. Rather, there must be some showing of a continuing need for the DVO.?
50 TO BE PUBLISHED: UP THE LADDER DEFENSE: The issue is not whether the City was engaged in the regular or recurrent business of providing utility services, but whether the building of a sewer system was a regular or recurrent part of the City’s business.  –
Likewise, the Board erroneously determined that the construction of the sewer system was a regular or recurrent part of the City’s business simply because “(t)he business of providing utilities per force requires the installation and maintenance of the utility
system[.]?
51 TO BE PUBLISHED: PROCEDURE FOR CUSTODY CHANGE DUE TO RELOCATION OF PARENT: Our case law clearly holds that custody modification
falls exclusively within the purview of KRS 403.340 and 403.350, and any other judicially-created “gateways? to custody modification are inapplicable..
52 WORKER’S COMPENSATION: …it is insufficient to merely  demonstrate the existence of evidence which would support a claimant’s position.

 

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  1. [...] LawReader publishes ALL decisions of the Ky. Court of Appeals. 52 important decisions handed down this week. Eight cases are published and should be read immediately. [...]