Decisions of Ct. of Appeals for April 28 now posted on LawReader.com

One sentence synopsis of Ky. Court of Appeals rulings for April 28, 2006.

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Important cases:
1 under the clearly articulated precedent of the Kentucky Supreme Court, Lofton’s claims of ineffective assistance of counsel are not cognizable
2 an injured party can recover against the Commonwealth under the Board of Claims Act. KRS 44.073(2) “clearly establishes that any negligence claims against the Commonwealth or its subdivisions must be for the negligent performance of ‘ministerial acts.
3 By seeking and obtaining prospective enforcement of the covenant (not to compete within 50 miles), ARH waived its right to retrospective enforcement of the covenant as set forth in the contract.  -  ARH is not entitled to liquidated damages under the contract
4 TO BE PUBLISHED: the trial court erred in failing to instruct the jury on lesser included offenses,
5 Drawing all inferences in favor of the Commonwealth, the evidence presented to the jury appears to have been more than sufficient to induce reasonable jurors to believe beyond a reasonable doubt that Nevitt was guilty
6 No evidence presented to the court tended to indicate that the parties had worked together collusively in order to avoid compliance with the prevailing wage requirements governing a public authority.
7 delay (in recording deed) implicates appellants in the knowledge of the defects in the transactions, and so they cannot take advantage of the protection afforded good faith purchasers without knowledge
8 that the identification of Adams was reliable under the totality of the circumstances.
9 we believe the circuit court abused its discretion by not awarding prejudgment interest.
10(Court was correct to) award… a judgment of $129,160 in damages for the City’s breach of the implied duty of good faith and fair dealing in relation to a …written agreement… extending his probationary period.
11 joint accounts are not immune from garnishment by the creditor of one of the joint accountholders.
12 GRW’s current claims arise from the same indivisible contract as was litigated in GRW’s prior action
13 the motion to intervene (as authorized by KRS 342.700 and CR 24.01(2)) has to be by the real party in interest under CR 17.01, which would be the workers’ compensation carrier.
14 As Hawkins currently is serving a sentence for first-degree robbery, which is a “violent offense? as defined by KRS 439.3401, he clearly is ineligible to accumulate time credit for any work performed on or after June 24, 2003.
15 we are not persuaded by the claim that Samuel improperly engaged in dual representation of Marshall and her daughter.

16 TO BE PUBLISHED: MALICIOUS PROSECUTION- there is an obvious distinction between the dismissal of an indictment and simply “filing it away.? The latter is considered an “indefinite continuance,? while the former is not.
 

17 Admission of history of two prior felonies found to be harmless error.
18 the affiant stated the name and address for McCarty’s unknown spouse was “unknown.? We believe this statement constitutes adequate compliance
19 TO BE PUBLISHED: the circuit court misapplied the statutes pertaining to re-sentencing a youthful offender upon reaching the age of majority. Youthful offender eligible for probation consideration even if convicted of violent offense for which probation is not otherwise available.

20 None of appellant’s assignments of error were preserved for review and none rise to the level of palpable error
21 it is impossible for this Court to grant actual or practical relief to V.B., we dismiss the appeal as moot.
22 defendant not entitled to directed verdict since jury could reasonably infer a real and substantial risk of serious physical injury or death from his flight
23 Fourteen years too long a period of time for filing of 60.02 motion.

24 the United States Supreme Court abandoned the
rigid two-pronged test established by its previous holdings in Aguilar v. Texas, and adopted a “totality of the circumstances” approach for determining whether an informant’s tip provided probable cause for the issuance of a search warrant.
25 the family court abused its discretion in suspending S.T.’s supervised visitation with M.E.T
26 that there was substantial evidence that McIntyre sustained no permanent disability as a result of the work-related injury and that a different finding was not compelled.
27 We do not find an error in the assessment of the evidence in this case leading to flagrant error
28the ALJ erred in relying upon that particular testimony, and his finding
on the notice issue is not supported by substantial evidence of record.
 

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