Archive for the ‘Weekly Decisions Ct. of Appeals w/synopsis’ Category

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

Saturday, September 9th, 2006

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

2duplicate

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

48same

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)

LawReader posts 23 cases of the Ky. Ct. of Appeals released on August 11, 2006.

Friday, August 11th, 2006

 A complete synopsis and full text access is available on www.lawreader.com .
You can sign up immediately online for only $34.95 per month.

1 11.42 motion denied
2 the existence of a durable power of attorney cannot prevent the institution of guardianship proceedings. —  the courts of the Commonwealth have inherent power to impose attorney’s fees and related expenses on a party as a sanction for bad faith conduct, regardless of the
existence of statutory
3 as the QDRO was only an enforcement of that order, it did not amount to an improper modification of it.
4 The court is also at liberty to interpret evidence as it sees fit. Its finding may not be disturbed on appeal if it is supported by substantial evidence
5 A trial court enjoys broad discretion to determine custody of children, and its decision will not be disturbed in the absence of clear error. As the finder of fact, it is in the best position to observe the parties
6 the family court did not abuse its discretion in naming the father as the primary residential custodian
7 While the court made the observation the RCr 11.42 motion represents a complete and total waste of judicial resources and is a farce upon the legal system?, the court cited to and applied the Strickland test..
8 professional degree can be considered when the court is dividing marital property and allocating responsibility for debt.
9 TO BE PUBLISHED: Since Poe was not arrested at that point, his other two arguments that the police lacked probable cause to arrest him and that his actions were the result of rightfully resisting an unlawful arrest are baseless
10 disputed evidence provided the prosecutor with a sufficient basis to support his statements in his closing argument that Mason had been untruthful to the jury.
11 Sex offenders  failure to complete the program is good and sufficient cause to revoke the period of conditional discharge
12 When a resident and a non-resident business entity engage in interstate business transactions with each other in which the non-resident places orders with the resident and the resident manufactures the product and ships it to the nonresident, it is our view that each of them have transacted business in both states.
13 Appellants failed to preserve their objection to the trial court’s calculation of damages
14 the court incorrectly relied on the medical opinion of the mother’s psychiatrist that she was able to care for the child safely. The court issued incomplete findings of fact
15 Once Castile admitted his crime, any need to determine whether A.L.’s statements concerning the abuse were reliable became moot.
16 this  was an argument that could have been raised by Davidson in his RCr 11.42 motion. Therefore, pursuant to the Gross case, he was precluded from raising the issue in a CR 60.02 motion.
17 “Alleged defamatory statements must be construed in the context of the entire communication.? Biber, 155 S.W.3d at 738. “Pure opinion, which is absolutely privileged, occurs where the commentator states the facts on which the opinion is based, or where both parties to the communication know or assume the exclusive facts on which the comment is clearly based.?
18 the McCracken Family Court did not err in denying  motion to modify the custody arrangement so as to name her as the primary custodian of her minor child
19 and a sheriff may revoke prior appointments of deputy at-will where the county has not established a deputy sheriff merit board.
20 Before a custody decree may be modified, the court must find that modification is necessary to serve the best interests of the child. See KRS 403.340(3). In determining the best interests of the child, the court must consider all relevant factors, including the nine factors listed in KRS 403.270(2).
21 Viewing the evidence as a whole it is beyond doubt that admission of the evidence, if it was error, was harmless.
22 His signature on the “Motion to Enter Guilty Plea? affirms his understanding of his plea and that it was freely, knowingly, intelligently, and voluntarily made.
23 TO BE PUBLISHED We cannot agree that the Cabinet is barred by the doctrine of issue preclusion from introducing evidence that might identify R.H. as the perpetrator of the prior sexual abuse. This evidence is highly relevant to establish whether M.A.H. is an abused or neglected child.

This weeks Ky. Ct. of Appeals decisions posted on LawReader.com

Friday, August 4th, 2006

One sentence review of 25 decisions handed down by Ky. Court of Appeals at 2 PM on August 4, 2006. Join LawReader at www.lawreader.com and access the full text and full synopsis of each case. Only $34.99 a month.

1 the Commonwealth failed to present sufficient direct evidence demonstrating the .22 caliber rifle was capable of expelling “a projectile by the action of an explosive? as required under KRS 527.040 and KRS 527.010(4).
2 TO BE PUBLISHED: Paducah School shooter entitled to retrospective competency hearing: we vacate the June 30, 2004, order of the McCracken Circuit Court and remand this case for the court to determine whether a retrospective competency hearing is permissible and, if so, to conduct such a hearing.
3 Physician failed to raise defamation issue in timely manner:  
The record reveals a claim of defamation was never raised in the pleadings before the circuit court. “The Court of Appeals is without authority to review issues not raised in or decided by the trial court
4 TO BE PUBLISHED: the trial court’s denial of Barger’s suppression motion was proper as the totality of the circumstances supported the police officer’s reasonable and articulable suspicion of criminal activity thereby justifying the investigatory stop. See Dissent by Judge Buckingham
5 A domestic judgment of a court of general jurisdiction is presumed regular and valid unless the record affirmatively shows the contrary.
6 “the intention of the donor may not only be ‘expressed in words, actions, or a combination thereof,’ but ‘may be inferred from the surrounding facts and circumstances, including the relationship of the parties [,]’ as well as ‘the conduct of the parties [.]
7 TO BE PUBLISHED: KRS 533.250, which established pretrial diversion in 1998, does not apply retroactively
8 A (civil defendant is not liable when the original negligence is remote and only furnishes the occasion of the injury.
9 The DRC failed to find whether Karen was unable to support herself through appropriate employment. However, we can reasonably infer from the DRC’s findings that he found that Karen was unable to do the same at the time of the final hearing.
10 Appellant accepted the fellowship in Chicago knowing he would earn less money, so he was voluntarily underemployed as defined by KRS 403.212(2)(d).
11 appellant’s sentence was not an unlawful double enhancement
12 Probation properly revoked for overuse of prescription medication
13 The court erred by not make a specific finding as to the marital or nonmarital nature of this property – bed to be returned to husband as it was premarital property.
14 Tenant wearing pajamas with footies who slipped on ice entitled to present her claim for slip and fall against Landlord.  -  A landlord owes its tenants a duty of care to maintain all common areas under the landlord’s control in a safe condition
15 To determine whether the relationship constitutes an employer and independent contractor relationship, the most important factor is whether the employer retains the right to supervise and control the work.
16 the court has discretion to fix the beginning of  child support obligation payments
17 Absent probable cause and the existence of exigent circumstances, the police may not conduct warrantless entries into a suspect’s home to make a felony arrest – Exigent circumstances found here.
18 when appellant voluntarily dismissed his underlying personal injury claim against the alleged tortfeasor, he lost any right to have State Farm settle his bad faith claim.
19 damages were too speculative to justify a claim.
20 the circuit court properly denied his RCr 11.42 motion
21 Worker’s disability benefits denied as his psychological injury did not result from a physical trauma
22 ALJ had the prerogative of electing to rely on that evidence. We cannot substitute our judgment for that of the ALJ.
23 there is substantial evidence to support a finding in favor of Marcum. Consequently, the court’s determination of the child’s best interests was fully within the circuit court’s broad discretionary power.
24 the Administrative Law Judge’s (ALJ) decision denying Bullock’s claim for permanent partial disability benefits (PPD) and future medical benefits was correct.
25 Both parties in a workers’ compensation claim settlement can reopen the claim if they adhere to the statutory requirements discussed in the preceding paragraphs

Ky. court of appeals releases 25 cases July 28th.

Friday, July 28th, 2006

 Read the full synopsis and access full text of each case by subscribing to www.lawreader.com. Only $34.95 per month. These are the issues ruled on this week:

1The inability to control the actions of a third person, whose co-operation is needed for the performance of an undertaking (contract), is ordinarily not to be regarded as an impossibility avoiding the obligation
2 counsel engaged in sound trial strategy by attempting to impeach Gay’s testimony by showing he had received a favorable plea agreement.

3TO BE PUBLISHED: (Worker seeking unemployment benefits who failed insurance salesman exam,)  did not voluntarily quit his job and his discharge was not for misconduct. 

4 In order to obtain relief under KRS 500.110, a defendant must carry the burden of showing both that a detainer has been lodged and that the prosecutor has been served with the request for final disposition of the charges

5 A plaintiff in a legal malpractice case has the burden of proving ‘1) that there was an employment relationship with the defendant/attorney; 2) that the attorney neglected his duty to exercise the ordinary care of a reasonably competent attorney acting in the same or similar circumstances; and (3) that the attorney’s negligence was the proximate cause of damage to the client.
6TO BE PUBLISHED: a circuit court judgment reducing a Board award to judgment, such as the order of the Boyd Circuit Court entered on February 10, 1999, is entitled to the post-judgment interest benefit provided for in KRS 360.040 the same as any other judgment –

Unlike jurisdiction, however, venue may be conferred by waiver.

7 no genuine issue of material fact exists regarding Fulton’s claim that he was exposed to abestos

8 The three days that the trial court waited before granting summary judgment was not sufficient to provide Fulton with an opportunity to respond to Viacom/Westinghouse’s motion; thus, the court erred when it granted summary in Viacom/Westinghouse’s favor.

9 Attorneys lien for his fee, filed after his firing by client, upheld

10TO BE PUBLISHED: upon her conviction as a sex offender sentenced in 2001, Jones automatically became subject to the period of conditional discharge as a matter of law. (court’s failure to mention this did not relieve defendant of duty to serve CD time.)
11TO BE PUBLISHED: (Police) were legally entitled to enter the property to perform the “knock and talk.? During the course of this duty, they found evidence of illegal activity, i.e., the odor of marijuana. (Therefore there was no constitutional violation of cartilage doctrine.)

12 TO BE PUBLISHED: the Board did not overlook or misconstrue controlling statutes or caselaw, or flagrantly err in assessing the evidence so as to cause gross injustice,

13 Thus, the circuit court properly granted summary judgment in NSI’s favor regarding Fulton’s exposure to asbestos at TVA Paradise.

14 the family court applied the wrong standard to allocate debts and to find that Robert had a nonmarital interest in stock that belonged to his mother,

15 There was sufficient proof presented to jury to establish boundary line dispute

16 the trial court abused its discretion in violation of his due process rights when it denied his request to withdraw his guilty plea, pursuant to Kentucky Rule of Criminal Procedure (RCr) 8.10, without holding an evidentiary hearing into whether the plea was knowing, intelligent, and voluntary.

1711.42 motion denied

18 PPMC has abandoned this appeal, we dismiss

19 Court was within its discretion in refusing to permit defendant to withdrawn his guilty plea

20 TO BE PUBLISHED: the circuit court was in error in having ruled on Humana’s motion for summary judgment before Blose had an opportunity to complete discovery

21 the trial court abused its discretion by granting default judgment

22 . Kentucky Rules of Civil Procedure (CR) 50.01 requires a party moving for a directed

verdict to state with particularity the reasons a directed verdict is appropriate, and “Kentucky appellate courts have steadfastly held that failure to do so will foreclose appellate review of the trial court’s denial of the directed verdict motion.?

23 Kentucky law does not require written rejection of UIM coverage

24 parental rights correctly terminated

25 ALJ ruling denying benefits upheld

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

Friday, July 21st, 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

LawReader posts all Ky. Court of Appeals cases released on July 14, 2006

Saturday, July 15th, 2006

 Lawreader publishes a synopsis for all decisions of the Court of Appeals and Ky. Sup. Court.

This week there were 33 cases.  For full synopsis and full text subscribe to www.lawreader.com, the best legal research value in America. Only $34.95 per month.

1 KRS 403.200(2), does not require that the court enter findings of fact before determining the amount and duration of maintenance  award

2 failure of defense counsel to advise Appellee of potential deportation consequences was not cognizable as a claim for ineffective assistance of counsel

3 Issues as to all parties not included in dismissal as to one party, therefore, this is not a final judgment and cannot be appealed

4 Even if there was no probable cause for burglary, the arrest was justified by defendant’s fleeing and evading arrest

5 TO BE PUBLISHED: Building owner who warns contractor of dangerous roof, does not need to also warn subcontractor , as duty to warn is fulfilled

6 testimony from a daughter that she had never seen her dad have any illegal drugs in the house opened the door, under KRE 405(b), to cross examination as to specific instances of conduct and to the admission of evidence of her father’s previous guilty plea to drug trafficking

7Adoption procedures, involuntary termination issues discussed.

8Summary upheld. Real estate brokers contract did not impose duty to assist in obtaining financing.

9 the trial court erred in characterizing certain property as marital or nonmarital and failed to make the requisite findings on certain property issues before the court – the character of the property, i.e., whether it is marital, nonmarital, or both, is determined by the source of the funds used to acquire property

10 a social guest is a licensee. It makes no difference however cordially he may have been invited and urged to come  -   fire investigator need not be licensed in this state in order to be allowed to testify as expert witness

11 We remand for a reconsideration of Peter’s motion based upon the actual custody arrangement

12 the rights of a company under a guarantee agreement survive the merger of that company with another, even though the originally-guaranteed company is not the survivor corporation of the merger

13 In deciding whether to strike a juror for cause, the trial court must discern from the totality of the circumstances whether the juror possesses the requisite mental attitude of appropriate indifference.

14 Court can not order warning order fee paid if no party to the action is liable for fee and made party of this action.

15 Defendant has the burden of establishing that there is a reasonable probability that the result of the trial would have been different if the withheld exculpatory evidence were disclosed to the defense

16  TO BE PUBLISHED (condemnation case) KRS 177.081(1) does not violate the separation-of-powers provisions in the Kentucky Constitution.

17 the legislature has defined “employer? as a person having eight or more employees. This court is not at liberty to change the law – therefore dentist not subject to sex discrimination firing claim for discharging assistant who became pregnant.

18 substantial evidence supports the trial court’s ruling

19 Def. was only subject to a misdemeanor, the trial court erred in not dismissing this action for lack of jurisdiction.

20 TO BE PUBLISHED:  Defamation by church: – Although the jury normally determines whether a privilege was abused, a motion for summary judgment is appropriate when the record shows no facts which would lead to the conclusion that the Appellees acted with malice.

21 When challenging trial strategy, an appellant “must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy

22 Yocum was convicted of other offenses that occurred during the “set off? period. As such, we conclude that the court properly enforced the true agreement of the parties and denied Yocum’s motion to have the charge amended to a misdemeanor.

23 the trial court did not err by requiring def. to prove the invalidity of his plea rather than requiring the Commonwealth to prove its validity

24 issue preclusion, a subset of res judicata, “bars the parties from relitigating any issue actually litigated and finally decided in an earlier action.?

25 Mother denied right to relocate to Indiana with child there was no right to relocate, as in Fenwick, on the basis that no primary residential custodian was designated in the case at bar.

26 Medical expert not required. Layman can testify about malpractice when physician who had previously removed patients gall bladder, forgot he had done so, and operated second time to remove the non-existent gall bladder.

27 a defendant’s family situation is relevant to mitigation upon sentencing but failure to object when court refused such evidence meant error was not preserved

28 worker must show that the evidence was such that the finding against him was unreasonable on the basis of reliable, probative, and material evidence contained in the whole record

29 alj decision upheld

30 It is a fundamental, “primary rule of statutory construction that the enumeration of particular things excludes the idea of something else not mentioned.?

31 The test of “objective medical findings? applies to proof of an injury, whereas the proof of causation is within the realm of “reasonable medical probability.?

32 the findings of the ALJ on causation and impairment were supported by substantial medical evidence

33 the claimant in a workers’ compensation claim bears the burden of proving each of the essential elements of the cause of action

20 Ky. Court of Appeals cases released July 7th w/synopsis by LawReader.com

Friday, July 7th, 2006

Read full synopsis and full text by signing up with LawReader.com. At only $34.95 a month this is the best value in the legal research industry.

 1 TO BE PUBLISHED: Kentucky’s highest court has applied the doctrine of mitigation of damages to an award of back pay, the Court has stated simply that the plaintiff “cannot recover more than the difference between the contract wages or salary and the amount he earned or could have earned with reasonable diligence.

2 consideration of the transcript of evidence is necessary to the determination of the issue raised by appeal, and the transcript of evidence is not designated for inclusion in the record

3 appellant is not entitled to jail-time credit for time he spent in home incarceration as part of his pretrial release  — the circuit court erred by denying appellant’s motion pursuant to RCr 5.16 for a transcript of the grand jury testimony

4 As notice is the only claim raised by Shannon in connection with her due process argument, we find no error in the court’s conclusion that she received procedural due process.

5 TO BE PUBLISHED:  Kentucky law prohibits the amended version of a statute from being applied retroactively to events which occurred prior to the effective date of the amendment unless the amendment expressly provides for retroactive application –  we conclude that the trial court was clearly erroneous in finding that an easement was proven here, as continuity of use was not adequately shown by Thomas

6 we are convinced that the additional evidence is not reasonably likely to have affected the outcome of Monhollen’s trial, we affirm

7 administrator of deceased fathers estate owes no duty to Illegitimate child until paternity was proven

8 When he was not brought to trial within 180 days of his request for a final disposition of the charges listed in the detainer, the trial court correctly dismissed counts one and three pursuant to KRS 500.110.

9 evidentiary support must be present as a prerequisite for meaningful due process.

10 TO BE PUBLISHED:  the law in Kentucky . . .does not require a jury to award damages for pain and suffering in every case in which it awards medical expenses

11 wife’s credit cards found not to be marital debt – No evidence was presented to indicate that any of the money was used for marital purposes or that any of the marital assets distributed in the dissolution action had been acquired with the credit cards. In the absence of such information, it was impossible for the court to apply the Neidlinger factors.

12 We question the trial court’s unwillingness to allow Sommers’s expert to testify by telephone at the evidentiary hearing.

13 TO BE PUBLISHED:  (the law) allows for the disciplining of public employees who refuse to answer potentially incriminating questions about their employment if they were not required to waive their right against self-incrimination.

14 The court remands the case for appropriate consideration of visitation issues separate and distinct from requests for increased child support

15 plaintiff pleaded sufficient facts to support a cause of action against Providian for wrongful use of civil proceedings thus trial court erred in dismissing her claim. – The distinction between abuse of process and wrongful use of civil proceedings is not always clear…

16 the testimony of appellee and the social worker, regarding their own actions and observations, certainly was adequate to support the court’s determination that a preponderance of the evidence showed that domestic violence had occurred and may occur again.

1711.42 18 11.42 19 the factual findings are conclusive in this matter.

20 the family court erred by excluding evidence related to the removal of M.A.H.’s siblings following a substantiated claim of sexual abuse perpetrated against at least one of them

LawReader posts 28 decisions of Court of Appeals issued June 30th.

Saturday, July 1st, 2006

Important cases released by Court of Appeals on June 30.  The full synopsis and link to full text of each decision is available to subscribers to LawReader.com. You may sign up online for only $34.95 a month.

Case #: 

1 A period of more than four years passed before the DRC issued his written recommendations. However, a violation of KRS 454.350 does not render a judgment or report void due to tardiness – See: Dissent by Judge Huddleston

2 the only exception to its exclusive remedy provision is an instance “where the injury or death [of an employee] is proximately caused by the willful and unprovoked physical aggression? of an employee, officer or director of an employer or an employer’s workers’ compensation insurance carrier.

3 appellant convicted of manslaughter, trial counsel was ineffective for failing to present evidence that the victim had committed acts of domestic violence against appellant during their marriage.

4 11.42 motion denied

5 A police officer may conduct an area search of the passenger compartment of an automobile to recover weapons, as long as they possess an articulable and objectively reasonable belief that the suspect is potentially dangerous.

6 to be published:  this vehicle checkpoint (roadblock) was not properly conducted so as to limit the troopers’ discretion at the scene or to maximize public safety in any way. It appears to have been an isolated stop later characterized as a checkpoint detention.

7 the Commonwealth must trace to a controlled-substances violation any property it desires to be forfeited, irrespective of the statutory presumptions in favor of forfeitability  -   The burden to rebut the presumption in favor of forfeiture shifts to the party opposing forfeiture only after

the Commonwealth satisfies its initial tracing burden.

8 Adoption of a county road must follow the formalities of KRS Chapter 178, which require more than merely including it on the county road map.

9 award of custody “will not be disturbed unless it constitutes an abuse of discretion.? Abuse of discretion is defined as “arbitrary action or capricious disposition under the circumstances, at least an unreasonable and unfair decision.

10 Where the police have destroyed  a tape containing potential evidence, not in bad faith, a missing evidence instruction is the appropriate remedy

11 to be published : Court does not have jurisdiction to order payment of warning order attorney’s fee, when defendant is indigent and other parties are not before the court. – we are confronted with a deprivation for which no remedy lies.

12 the record shows that Pamela and Oliver cohabited and that the trial court’s conclusion to the contrary was erroneous.

13 Courts refusal to allow introduction of tape of witness’s conflicting statement held harmless error

14 the filing of a CR 59.05 [motion] after a trial court has ruled on an RCr 11.42 motion does not suspend the running of the time for an appeal

15 the Parole Board was well within its discretion to use  prior violations to revoke Watkins-El’s parole.

16 After revocation of an initial probation, the defendant may file a new motion for shock probation, which can properly be reviewed by the court

17 Motion for directed verdict properly denied

18 TO BE PUBLISHED:  motion for new trial filed six years after sentencing not timely

19 KRS 533.040(3)  does not apply because a  previous order of the Campbell Circuit Court had already directed that the sentences were to  be served consecutively as mandated under KRS 533.060(3).

20 Although a detainer was served by the Commonwealth of Kentucky, Hall’s parole was not revoked until after he finished serving his federal court sentence. He was not entitled to credit for Federal time served before return to Kentucky.

21 ALJ erred in denying Hart TTD benefits simply because he was able to work his concurrent part-time job as a referee during the time he was disabled from performing the job in which the injury occurred

22 there is no right to be informed of parole eligibility before entering a guilty plea. As such, even if Jewell was misinformed by counsel about his parole eligibility, it would not be sufficient to invalidate his conviction.

23  the Jefferson Circuit Court correctly denied relief because the matter was not brought within a reasonable time, constituted a proscribed successive collateral attack, and was without merit 24 Myron’s current appeal is barred by the doctrine of res judicata

25 a genuine issue of material fact exists as to whether the Logans and the Normans properly exercised the right to redeem the property in question

26 believe it axiomatic that appellant’s one-year sentence upon the escape conviction must run consecutively with the with the forty-year federal sentence.

27 to be published: worker could not receive additional benefits upon reopening his claim for worsening of pneumoconiosis because he had no additional exposure to coal dust since filing an earlier petition to reopen.

28 It was not patently erroneous for the ALJ to fail to characterize the vast majority of Cline’s impairment as preexisting

LawReader has prepared a synopsis for each of the 24 cases released by the Ky Court of Appeals on June 23

Friday, June 23rd, 2006

LawReader published these cases within four hours of their release. There is no better way to stay informed of the law. The following is a simple reference to the rulings.  For synopsis and full text access subscribe to LawReader.com.

This weeks Important cases:

1 Court did not err in ordering spouse to compensate ex-wife for share of retirement benefits based on[QDRO]? assets pursuant to property settlement agreement
2 Developer  is not entitled to compensation for their sewer plant which was bypassed by MSD. It was not therefore taken.  No damages for “inverse condemnation?.
3 TO BE PUBLISHED: the trial court erred by concluding as a matter of law that the crowbar constituted a deadly weapon under KRS 500.080(4)(d).
4 Insurance company was not obligated to provide coverage after homeowner failed to pay for the policy.  It was homeowner’s responsibility to inform insurer of his new address, therefore failure to receive notice of policy cancellation was not insurer’s fault.  Plaintiff set the romantic mood by spreading the money on the sofa in the living room of the lake house. Unfortunately for Plaintiff, a masked intruder forced his way into the home and brandished a gun, stole the money and set the house of fire before fleeing.
5 if a probated sentence for a felony is revoked after the commission of another felony, KRS 533.060 requires the sentences for the two felonies to run consecutively even if the probation revocation occurs after the passage of the ninety-day period described in KRS 533.040.
6..Dicta: .“(a) single sales transaction (of controlled substance) between the same principals at the same time and place which violates a single statutory provision does not justify conviction or a sentence for separate crimes, even though more than one item of a controlled substance (of the same schedule) is involved.? A trial court is not permitted to review the credibility of evidence, or the weight it should be given. Such a review is the province of the jury.
7 TO BE PUBLISHED: Co-defendant’s plea of guilty did not waive her right to assert Fifth Amendment right to not testify.  –  “the introduction of inadmissible evidence by one party allows an opponent, in the court’s discretion, to introduce evidence on the same issue to rebut any false impression that might have resulted from the earlier admission.?
8 a motion for directed verdict will not preserve  a claim that the evidence is insufficient to sustain the  Commonwealth’s burden of proof on one or more of the indicted offenses.
9 The voluntary nature of consent to search is to be determined by the trial court with regard to
the totality of the circumstances
10 Law enforcement personnel are not automatically excluded from the jury panel
11 Plaintiff needed, yet did not obtain, an expert witness to support the medical malpractice claim
12 counsel’s negligence in failing to answer discovery is imputed to the client and is normally not a ground for relief from a court order of judgment.
13 Defendant is entitled to? “a fair trial, not a perfect one.?
14 the family court erred by awarding the certificate of deposit to Justin instead of finding it to be a marital asset and dividing it in just proportions.
15 when the time for filing a notice of appeal ran on December 9, 2004, the Commonwealth’s CR 60.01/60.02 motion did not toll the time and the November 9, 2004, opinion and order setting aside the guilty plea became final.
16 negligence by Eastern State which contributed to his escape does not absolves defendant of the crimes he committed following the escape  – failure of trial attorney to pursue such a defense not basis for 11.42 relief
17 18 the date the insurer issues payment, is the date from which the limitations period begins to run.
19 TO BE PUBLISHED: Defendant clearly and deliberately rejected the arbitration provision contained in the offer by marking through that clause of the contract. By executing the general terms of the contract, Collins did not waive his right to reject the specific arbitration clause proposed
20 Any agreement (regarding child support) which affects the best interest of a child is always subject to the approval of the court having proper jurisdiction of the parties.
21 only Dr. Eberbaugh, as School Superintendent, had the authority to enter into an employment agreement with teacher…summary upheld.
22 Constructive service of process by a warning order attorney has been permitted in termination of parental rights cases due to problems in locating the parent in question.
23 Miranda is applicable only in the event of a custodial interrogation
24 “given the evidence most credible by the ALJ, we cannot say the ALJ’s determination that

LawReader posts synopsis of this weeks Ct. of Appeals cases

Friday, June 16th, 2006

The following Ky. Court of Appeals cases have been posted on LawReader and are accessible by subscribers.These cases were released by the Court of Appeals at 2 P.M. and our staff had written a synopsis for each decision and posted them by 3:53.  This keeps our users very, very current on the state of the law.
Case synopsis:

1 the trial court erred as a matter of law in failing to award any damages

2 A motion for a directed verdict at the close of the evidence is required to support a judgment of acquittal.

3 search of motel room following arrest pursuant to an arrest warrant, did not exceed the scope permitted by the Fourth Amendment.

4 under Kentucky law that limestone and clay are not minerals and thus were retained by the surface owners

5 court correct in ruling on claim of ineffective assistance of counsel on the basis of the court record without holding an evidentiary hearing

6 Once the spouse alleging dissipation has established the above elements, the burden of going forward falls on the spouse charged with dissipation.

7 we are presented with no evidence that the post-trial litigation was for the purpose of harassment and vexation or any indication that the trial judge abused the discretion the statute provides.

8 If an employee’s entire legal expense in recovering damages against a third-party tortfeasor exceeds the indemnity paid or payable by the carrier to the employee, then the carrier is not entitled to subrogation.

9 ambiguity in the language of the arbitration agreement must be resolved in favor of arbitration

10 no case  says you’re required to disclose what your rebuttal testimony is going to be

11 the fact that White was driving erratically justified Officer White’s attempted traffic stop

12  the statute limits revocation of probation to occurring during the (five year)  probationary period

13 to be published: the trial court did not err by allowing the Commonwealth’s Attorney to participate in Bray’s sex offender risk assessment hearing

14 Appellant voluntarily, knowingly, and intelligently waived his right to have counsel present? when he continued to communicate with the police.

15

TO BE PUBLISHED: the Kentucky Cabinet for Family Services failed to present sufficient evidence of probative value at the termination hearing to establish grounds for termination by clear and convincing evidence.

16 KRS 139.793 specifically prohibits any private cause of action based upon any of the provisions contained within the Uniform Sales and Use Tax

17 The inmate’s choice of legal aide or staff counsel must be identified within twenty-four hours of the inmate’s receipt of the completed disciplinary report, and the inmate must identify any chosen witnesses at least twenty-four hours before the initial hearing.

18 Appellant’s CR 60.02 motion, made 23 years after the indictment was issued, was not timely

19 Although the court neither abused its discretion nor acted erroneously when it denied Miller’s motion, we assume that it will reconsider its decision when additional time has passed and R.S.M. has achieved a level of physical and emotional maturity that will enable him to resume contact with his mother.
 

Court of Appeals decisions include 8 published cases this week

Friday, May 26th, 2006

Important cases handed down by the Ky court of appeals May 26, 2006.  LawReader members can view synopsis and full text. To sign up go to:  www.lawreader.com   Membership is only $34.95 a month.

Case number:

1 2
3TO BE PUBLISHED: Paducah school shooter granted competence hearing: …minority and mental incompetence, are common grounds for tolling limitations periods, and RCr 11.42 itself gives no indication that its limitations period is meant to be an exception
4 TO BE PUBLISHED: An inquiry into potential securities fraud is within the administrative agency director’s authority as is a subpoena to further that inquiry.
5 alcoholism is not a mental illness for purposes of negating legal intent to drive while intoxicated.
6 TO BE PUBLISHED: University of Ky. Medical Center is a state agency and therefore enjoys immunity for medical malpractice claims

7 8 Feldpausch was entitled to exercise “reasonable visitation rights? with the children unless the court specifically determined that visitation would seriously endanger them. Absent such a finding, the trial court was prohibited from suspending her visitation with the children.
9 ordinances granting planning map amendment were not arbitrary.
10 jury was within the evidence to deny future medical benefits
11 TO BE PUBLISHED: KRS 610.010(13) limits juvenile court jurisdiction to minors. Neither the court’s contempt power nor the limitations period for an action on a judgment implies an exception to that rule for restitution obligors.
12 TO BE PUBLISHED: the difference in treatment between a “used motor vehicle? and a “new motor vehicle,? as found in KRS 138.450(12)(a) and (f), rationally furthers the goal of stimulating the used car industry and is not unconstitutional.
13TO BE PUBLISHED: Highway department owning land in urban areas has duty to maintain natural conditions (old trees) that might cause damage to neighbors…different rule applies in rural areas

14 TO BE PUBLISHED: res judicata was no longer binding, summary judgment issued in error

15..(adverse)…possession is generally deemed adverse when such possession is maintained to a fence line because the fence is recognized as the proper boundary line

16 17 once Chambers broke and ran Officer Curtsinger had a reasonable
suspicion to pursue and to arrest Chambers for fleeing and evading
18 failure to inform a defendant of parole eligibility does not render a guilty plea involuntary under the rule of Boykin v. Alabama

19 Bradley “failed to demonstrate that either Mayor Fannin or the City of Prestonsburg retaliated against her for exercising a right conferred by well-established legislative enactment or for refusing to violate a public policy as set out in the Constitution or a statute.?
20 the officers had articulated a reasonable basis for the stop
21 it was error to appeal from an interlocutory decree
22 Because the trial court failed to make specific findings on the crucial time-lapse issue, we must vacate and remand.
23 KRS 405.021 must be construed to impose a burden on the grandparent seeking visitation of overcoming that presumption by proving clearly and convincingly that visitation is in the child’s best interest.
24 TO BE PUBLISHED:  Kentucky law forbids an appeal of the denial of a petition to involuntarily terminate parental rights.
25

LAWREADER HAS POSTED ALL 69 CASES HANDED DOWN BY THE KY. SUPREME COURT AND THE KENTUCKY COURT OF APPEALS THIS WEEK.

Friday, May 19th, 2006

Members of LawReader.com can read a synopsis and the full text of these cases.  To sign up go to  www.lawreader.com  -  This feature is included in your monthly subscription fee.
 
KENTUCKY COURT OF APPEALS DECISIONS FOR WEEK OF MAY 19, 2006
Important cases:
 

1 2 Where failure or a defect cause injury to the plaintiff, a jury instruction permitting the jurors to assign liability is proper.
3 pursuant to KRS 527.060, a conviction is required before property can be forfeited to the state.
4 TO BE PUBLISHED: The doctrine of contributory negligence does not apply to claims against highway authorities in Kentucky before the Board of Claims….
5 6 Fact that husband had affair and is seeing new friend after divorce is not sufficient to deny joint custody
7 failure to name an indispensable party in the notice of appeal results in dismissal of the appeal
8 9 10 11 policeman by ignoring department policy regarding chasing motorist, did not forfeit his right to arrest fleeing defendant…such arrest provided no defense to said defendant
12
13 TO BE PUBLISHED: inmate appeals:  inmates do not have the right either to retained or to appointed counsel for disciplinary actions
14 15 The law imposes lifetime registration requirements for sex offenders who had a prior conviction, or whose victims were minors. KRS 17.510. 
16 17 defendant has a duty to be honest and forthright with the plaintiffs and with the trial court – on discovery of failure to do so court was correct to reinstate civil action previously dismissed for lack of prosecution
18 the twenty-one-year sentence exceeded the maximum sentence of twenty years
19 school Board was entitled to immunity under the Recreational Use Statute

20 allocation of court costs and an award of an attorney’s fee are entirely within the discretion of the court
21 it is not in the province of this Court to substitute our judgment for that of the fact-finding circuit court
22 the Cabinet failed to prove the statutory requirements for termination of parental rights by clear and convincing evidence

23 24 25
26 TO BE PUBLISHED: we reverse the circuit court because we believe that the circuit
court erred by substituting its judgment as to the credibility of witnesses and by misapplying the law.
27 the trial court’s revocation order failed to make the requisite written factual findings concerning the conditions of release
28 this Court has no authority to review issues that were never raised before nor ruled upon by a lower court or the ALJ.
29 Defendant’s motion is DENIED for lack of jurisdiction as waived as, untimely raised and for failure to set forth any special circumstances justifying C.R. 60.02 relief.
30 We agree with the Board, however, that the evidence does not compel the result Thomas seeks.
31
 

SUPREME COURT OF KENTUCKY DECISIONS FOR MAY 2006
 
Important cases:
1 Fletcher v. Stumbo- it is the prerogative of the grand jury to issue a general report of its investigation, so long as pardoned or unindicted individuals are not specifically identified – acceptance of a pardon is presumed – blanket pardons upheld
2 3
4 The “good faith” exception will not save an improperly executed search warrant
5 Dissent: peremptory challenges in both civil and criminal trials can be allocated at the whim of trial judges,
6
7 Future Medical Expenses windfall should be awarded to the injured party, not the UIM insurer who stands in the shoes of the tortfeasor.
8 evidence of the Appellant’s past affair with Ms. Baumgardener is admissible
9″[O]ne may not stand by and make no objection to a proceeding in court with the anticipation that if it results favorably the benefits will be accepted, but that if it results unfavorably objections will be made
10 11
12 we find it unreasonable to presume that unallocated portions of a tort settlement were meant to pay for attorney fees and expenses.
13 while evidence of an insurer’s litigation conduct may, in some rare instances, be admissible on the issue of bad faith, such evidence will generally be inadmissible
14
15 the incorrect notation as to manner of service as a clerical mistake under RCr 10 .10, correctable (if need be) nunc pro tunc
16 17 18 19 20
21 the statement, “I don’t want to talk about it” to be an unequivocal assertion of the right to remain silent
22 Once warned, the suspect is free to exercise his own volition in deciding whether or not to make a statement to authorities
23 24
25 the right of an arresting officer to search the passenger compartment of a vehicle(does not)  terminate when the arrestee cannot access the vehicle to destroy evidence or access a weapon
26 27 28 when CR 35.02(1) is triggered by the examined party’s request for production of the independent medical examiner’s report, that party has a reciprocal obligation to produce a like report of all similar examinations .
29 30 31 32 33 34 35 36 37 38
 

 

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

Friday, April 28th, 2006

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

The full synopsis and access to full text of each decision is available on www.lawreader.com to subscription members. We post all decisions and provide a synopsis without hours of the release of the decisions by the court.

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.
 

Kentucky Ct. of Appeals Decisions for April 21, 2006

Friday, April 21st, 2006

These important cases may be found on www.lawreader.com

 

LawReader Case No.
 1 The relevant statute presumes that possession of more than twenty-four grams of pseudoephedrine is prima facie evidence of the intent to manufacture. KRS 218A.1437
2 Even if Penn did not receive this notification, he has failed to explain how he has been prejudiced. This claim (for open records) is without merit.
3 Because Serey has failed to raise the abuse of process claim in his brief, we deem it to be waived or abandoned

4 The burden of proof in a malpractice case is, of course, on the party charging negligence or wrong.  
5 we erred by reconsidering our earlier opinion and thus now dismiss this appeal again for the reasons discussed below.

6 we conclude the trial court did not abuse its discretion in denying Hazelwood’s motion for relief under CR 60.02

7 the circuit court correctly proceeded to a determination that the roadway was not abandoned under common law principles

8 appellant has failed to demonstrate entitlement to the extraordinary remedy available under CR 60.02.

9 However, as the monthly benefit paid directly to the child is considered that child’s independent source of income, and “not to be counted as income to either parent when calculating a child support obligation,? the trial court did not incorrectly allow a credit against Deanna’s monthly obligation.

10 we are unable to say that the trial court’s award of maintenance in this case constituted an abuse of discretion.

11, because Brown’s words imputed the criminal act of shoplifting, Boggs has made out a case of slander per se

12 Actionable outrage requires “a deviation from all reasonable bounds of decency and is utterly intolerable in a civilized community.?

13“a voluntary guilty plea . . .waive[s] all defenses other than that the indictment charges no offense.?  
14 Under the highest and best use approach, the nursery stock is not separately valuated

15 contempt order upheld
16 He has failed to show that the Cabinet has shirked its regulatory responsibilities.
17 We reverse the trial court’s increase in child support and remand the matter for calculation of appellant’s obligation, with legal interest, regarding expenses owed to Large.

18 Inmate was not entitled to counsel in an action which he initiated

19 the Board did not err by affirming the ALJ’s denial of Walker’s claim.
20 we cannot say that the ALJ or the Board has committed an error in assessing the evidence so flagrant as to cause Walden a gross injustice.

21 even though we may have decided the matter differently, we must affirm the Board because the record does not compel a different result.

Decisions of Ky Court of Appeals for April 14, 2006

Friday, April 14th, 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.?
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.?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.?

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

One Sentence Synopsis of Ky. Ct. of Appeals decisions issued March 17

Sunday, March 19th, 2006

Subscribers can go to LawReader’s Weekly Decisions to read analysis of cases and to read full text of each decision.

Important cases:  

1. Technical errors which do not deprive a defendant of a substantive or procedural
right to which the law entitles the defendant or a fair trial are not sufficient to establish prejudice under Strickland    

2. Claims of ineffective assistance are not reviewed on direct appeal, but must be raised in front of the trial court via a Kentucky Criminal Rule 11.42 motion.

3. the overall purpose of the Unified Juvenile Code that it was the intent of the legislature that the grant of “continuing jurisdiction” set out in KRS 610.010(13) include the continuing power to amend or to modify a previously entered dispositional order.

4. The trial court’s findings did not support the award of damages to the Kruszewskis beyond return of their down-payment.

5. A person could be guilty of conspiracy to manufacture methamphetamine without actually possessing methamphetamine or any of its precursor ingredients.

6. An attorney generally must possess actual, not mere apparent, authority in order to bind his clients to a settlement.

7. We find no error in the trial judge’s assessment that appellant’s entry of a guilty plea in the non-support prosecution, which constituted an admission of the truth of the factual underpinnings of the amended charges, precludes his current challenge to his paternity of D.W.

8. (policeman)… waived that defense by deliberately refusing to appear and raise it either during the scheduled hearing or during an appeal from the administrative order terminating his employment …

9. an indictment may be “amended any time before [the rendering of the] verdict or finding if no additional or different offense is charged and if [the] substantial rights of the defendant are not prejudiced

10. the trial court erred in finding that the full repair costs were less than the reduction in value of the property due to the damage

11. There was not any evidence that would warrant an instruction on fourth-degree assault based on Butler’s theory of the case.

12. Inmate was entitled to the appointment of counsel for 11.42 hearing, only if there were material issues of fact below which could not be “determined on the face of the record.

13. A trial court has the inherent power to enforce (a settlement) , even if the agreement has not been reduced to writing even if the agreement has not been reduced to writing

14. CR 60.02 should only be used to provide relief when the movant demonstrates why he or she is entitled to the special, extraordinary relief provided by the rule.

15. a renewal (of motion for directed verdict) is not required if the defense rests immediately after the trial court denies the motion

16. It is procedurally improper to file two successive postconviction motions, as all issues that could reasonably have been presented under RCr 11.42 are foreclosed from being raised under CR 60.02.

17. 18 11.42 motion denied

18. Adverse possession: Spalding’s sublease with Buckman as well as the sublease itself caused Spalding’s use of the disputed property to be interrupted

19. Absent an allegation of fault, the trial court did not err by ruling that Perry’s claim against Smith must fail.

20. a plaintiff’s prima facie case (for job discrimination), combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.”

21. A disciplinary proceeding that may revoke a prisoner’s good-time credit must comport with due process

22. the issue of whether D.R. and her father testified truthfully that she did not talk to her grandmother about the abuse was a material issue, and rebuttal evidence was allowed

23. The landlord need not exercise even ordinary care to furnish reasonably safe premises, and he is not generally liable for injuries caused by defects therein.”

24. Policy issued to a corporate employer did not include employees within the class of named insureds. Employees were covered, rather, only if injured while occupying a covered vehicle.

25. A prisoner has no vested right or reasonable entitlement to meritorious good-time credit under KRS 197.045(3).

26. Fact that Deputy Jones detained defendant while awaiting the warrant does not necessarily render Walling’s subsequent consent involuntary.

27. When land is subsequently sold without reserving the family cemetery, by operation of law, the family of the deceased maintain an “easement,” not a fee, in the land, for burial purposes

28. the physical altercations between the child and his mother, and the fact that the child has failed the eighth grade once, and was perilously close to repeating that feat, supports father’s motion for change of custody

29. The trial court properly entered the domestic violence order

30. Once Kinner found herself having to prove causation, if she had not believed that she had to prior to the final hearing, her remedy was to ask for time to put on additional proof.

31. The existence of the arrest warrant will be deemed an independent intervening circumstance that dissipates the taint of the initial illegal stop vis-à-vis the evidence discovered as a consequence of a search incident to the execution of the arrest warrant.