Decisions of Ky Court of Appeals for April 14, 2006

Important cases issued by Ky Court of Appeals on April 14, 2006

To read synopsis and full text of these decisions : COURT OF APPEALS DECISIONS FOR APRIL 14, 2006 25 DECISIONS – subscription area….If you are not a LawReader user you can sign up from our home page and be online in five minutes, go to www.lawreader.com

1 TO BE PUBLISHED: the appellants have not produced evidence that would compel the granting of their petition for a zoning map amendment – “In an administrative or legislative context . . . the concept of impartiality is, by necessity and by function, more relaxed and informal.â€?
2 An accusation of perjury must be supported by an allegation that the defendant knew that his or her statement was false when the statement was made.3“[T]he clear language of the rule allows the trial judge complete discretion as to the use of a commissioner’s report.�
4 filing a 404(b) notice one day before trial does not, under most circumstances, constitute “reasonable pretrial notice.â€?5 A probation revocation proceeding “is not a part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole

revocations.”

6 the circuit court adopted the commissioner’s recommendation that “[t]here is no clear testimony or evidence of record that demonstrates that the roadway has been damaged or altered.

7… we agree with the trial court that the brief delay (In removing the baggie from the person of the defendant) following Officer Morse’s discovery of the baggie does not take the seizure outside the scope of the plain feel exception.

8 TO BE PUBLISHED: Even had Community Trust discovered the lien by exercise of due diligence, it should be granted priority over the judgment creditor’s lien due to its status as a purchase money lender.

9 Because we have already determined that Hoskins failed to introduce evidence of an apparent agency relationship, these issues are all without merit.

10 the circuit court was not modifying custody but actually determining custody after having set aside the separate agreement relative to custody (therefore Fenwick not applicable here)

11 the court should have conducted an evidentiary hearing to determine whether actual authority to negotiate a settlement was given to attorney

12 trial court’s decision that the (husbands $510,000 bonus received three days after the property settlement was signed does not justify setting aside the property settlement). (The courts finding that) the bonus was not an undisclosed asset is supported by the record. This means that we may not find it to be clearly erroneous. (Wife’s attorney overlooked this one.)

13 A prima facie case of retaliation requires a plaintiff to demonstrate “(1) that plaintiff engaged in an activity protected by Title VII; (2) that the exercise of his civil rights was known by the defendant; (3) that, thereafter, the defendant took an employment action adverse to the plaintiff; and (4) that there was a causal connection between the protected activity and the adverse employment action.�  14 we do not believe that a reclassification was required in this case and conclude that the decision of the Personnel Board should be upheld.

15 Because the law of the case doctrine bars this appeal, we must dismiss
16 TO BE PUBLISHED:  The time period for recoupment (of overpaid Medicaid benefits) shall not exceed twelve (12) months from the date the overpayment is established, and shall be accomplished within twenty-one (21) months from the end of the provider’s cost reporting period .17 Sharon has presented nothing to show that the trial court’s decision to reduce Steve’s child support was contrary to the evidence or the law
18
11.42 motion denied – the violent offenders’ statute, KRS 439.3401, requires that he serve eighty-five percent of his ten-year sentence – or eight and one-half years — prior to becoming eligible for parole.19“[i]f one fences and takes possession of a neighbor’s land, the only way that the neighbor can stop the running of the statute of limitations is by retaking possession or instituting suit within the statutory period. Mere words will not be sufficient.â€?

20 substantial evidence supports the circuit court’s findings of fact. Accordingly, the circuit court’s determination that Winkle was competent to stand trial was not clearly erroneous.

21 Judgment n.o.v. upheld due to lack of evidence.
22 TO BE PUBLISHED:  Neither (Dr. Park)  or Cape have sufficient minimum contacts (as described in KRS 454.210(2)(a)(4)) such as the regular conduct or solicitation of business in Kentucky, to justify the exercise by the courts of this Commonwealth of personal jurisdiction over him. Medical services were preformed by Missouri physician in Missouri…Ky.’s long arm statute did not apply.) 23 TO BE PUBLISHED:  the distinction made by New Jersey’s highest court between prohibitory and affirmative (Domestic Violence)  orders represents the fairest balance between protecting the due process rights of the nonresident defendant and the state’s clearly-articulated interest in protecting the plaintiff and her child against domestic violence. (Ky. Court has jurisdiction over non-resident for some DV purposes but these are limited….)
24 …because the Board lacked authority to make factual findings, such as Johnson’s injury onset date, it vacated the ALJ’s decision as to the right elbow and remanded the claim foradditional findings consistent with the evidence. That portion of the Board’s opinion is the subject of Bluegrass Cooperage’s petition for review.
25 60.02 motion not filed within reasonable time, and must be dismissed

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