Kentucky Court Report - SCOKY & COAKY

COA 2009 Minutes: November 20, 2009 (Nos. 1179-1204

Michael Stevens — 2009-11-22T12:42:10-05:00

COA 2009 Minutes: November 20, 2009 (Nos. 1179-1204)

26 decisions
10 published

Published Decisions with digest and link to full text decision at AOC

1180 - REVENUE AND TAXATION, TAX NEXUS W/KENTUCKY
THE REVENUE CABINET OF KY. V. ASWORTH CORP
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING ** ** ** ** **
BEFORE: CLAYTON, NICKELL, AND VANMETER, JUDGES.

VANMETER, JUDGE: The Revenue Cabinet, Commonwealth of Kentucky (n/k/a Finance and Administration Cabinet, Department of Revenue) (the Cabinet) appeals from the Franklin Circuit Court’s order reversing the order of the Kentucky Board of Tax Appeals (Board). Asworth Corporation (n/k/a Asworth, LLC), D Aviation Services, Inc. (n/k/a D Aviation Services, LLC), and HT-Forum, Inc. (n/k/a HTF, LLC), (collectively the Corporations) cross-appeal from the same order. For the following reasons, we affirm the circuit court’s order to the extent that it held that the Corporations have a tax nexus with Kentucky. We reverse insofar as it applied the three-factor apportionment method and ordered an immediate refund.

1181 - TORTS (Multiple issues arising from McDonald's Strip Search case)
MCDONALD'S CORP. V. OGBURN
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
** ** ** ** ** BEFORE: ACREE, TAYLOR AND THOMPSON, JUDGES

ACREE, JUDGE: The defendant below, McDonald’s Corporation, appeals the November 15, 2007, judgment of the Bullitt Circuit Court awarding both compensatory and punitive damages to Louise Ogborn, the plaintiff below, and Donna J. Summers, a defendant and cross-claimant below. We affirm the judgment of the Bullitt Circuit Court except as to the punitive damages awarded to Summers, which we reduce to comport with constitutional due process.

1182 - REVENUE AND TAXATION, PREVAILING WAGE RATES TO WORKERS
TECO MECHANICAL CONTRACTOR, INC. V. ENVIRONMENTAL AND PUBLIC PROTECTION CABINET

OPINION AFFIRMING IN PART, VACATING IN PART, AND REMANDING
** ** ** ** ** BEFORE: KELLER AND NICKELL, JUDGES; LAMBERT,1 SENIOR JUDGE.

KELLER, JUDGE: TECO Mechanical Contractor, Inc. (TECO), appeals from the Franklin Circuit Court’s summary judgment upholding the constitutionality of portions of Kentucky Revised Statutes (KRS) Chapter 337 (the Act) and assessing back wages and civil penalties against TECO. On appeal, TECO argues that portions of the Act are unconstitutional because there is no provision for a due process hearing regarding the classification of workers by the Environmental and Public Protection Cabinet (the Cabinet). Additionally, TECO argues the Act does not provide adequate guidance regarding the classification of workers. Furthermore, TECO argues that, if the Act is constitutional, the circuit court, in finding for the Cabinet, used the incorrect standard of proof; adopted the Cabinet’s classification method, which is contrary to law; and based its judgment on inadmissible evidence. For the following reasons, we affirm in part, vacate in part, and remand. * * * The facts are not in dispute. TECO provided mechanical contractor services to various general contractors on a number of public works projects. TECO bid and contracts were awarded based on payment of the prevailing wage as set forth in the applicable Notification of Public Works Projects documents (the Notifications). Following receipt of a complaint, the Cabinet audited TECO’s wage records from those projects and, on November 21, 2002, notified TECO that it had underpaid several of its employees by a total of $150,781.82. TECO protested, and the Cabinet conducted additional investigations, which lead to a reduction in the back wages owed to $63,494.21.
Following failed attempts to negotiate a resolution, the Cabinet notified TECO that it had until March 4, 2005, to pay a compromised amount of $51,620.65 in back wages and a civil penalty of $4,000.00. Furthermore, the Cabinet advised TECO that, if it did not pay by that date, the Cabinet would seek payment of the back wages from the appropriate general contractors.

1183 - EMPLOYMENT LAW
WATERS V. CITY OF PIONEER VILLAGE
OPINION AFFIRMING
** ** ** ** ** BEFORE: CLAYTON, MOORE, AND VANMETER, JUDGES.

CLAYTON, JUDGE: David Waters (“Waters”) has appealed from the Bullitt Circuit Court’s order granting a judgment against him for the breach of an employment contract. Because the trial court correctly interpreted the applicable statute, we affirm.

1186 - GOVERNMENT ETHICS, VIOLATIONS AND EFFECTS OF GOVERNOR'S PARDON
TURBYFILL V. EXECUTIVE BRANCH ETHICS COMMISSION
OPINION AFFIRMING
** ** ** ** ** BEFORE: NICKELL, THOMPSON AND WINE, JUDGES.

THOMPSON, JUDGE: The issue in this appeal is whether the Kentucky Executive Branch Ethics Commission (EBEC) has authority to pursue an administrative proceeding for the purpose of sanctioning Basil Turbyfill, who was previously pardoned by Governor Ernie Fletcher. Turbyfill moved to dismiss the proceeding on the basis that Governor Fletcher’s pardon was a full pardon precluding any criminal or civil action against him arising from any alleged violations of the Kentucky merit system laws prohibiting employment decisions based on political activities. The circuit court denied Turbyfill’s petition for judicial review and declined to order dismissal of the administrative proceeding, ruling that the pardon did not apply to the EBEC proceeding. We agree with the circuit court and affirm.

1188 - TORTS, SLIP AND FALL, SUMMARY JUDGMENT
FALLER V. ENDICOTT-MAYFLOWER, LLC
OPINION AFFIRMING
** ** ** ** ** BEFORE: COMBS, CHIEF JUDGE; NICKELL AND TAYLOR, JUDGES.

NICKELL, JUDGE: Rhoda Faller (Rhoda) fell and sustained injuries while exiting Buck’s Restaurant in Louisville, Kentucky. She appeals from the Jefferson Circuit Court’s award of summary judgment to Rader Enterprises, Inc., d/b/a Buck’s Restaurant (Rader); Endicott-Mayflower, LLC (Mayflower); and Professional Property Managers, LLC (PPM) (collectively referred to as appellees). Because there are no genuine issues of material fact, and Rhoda cannot prove any act or omission by an appellee substantially caused her to fall, we affirm the circuit court judgment.

1193 - CRIMINAL LAW
MUNCY V. COMMONWEALTH OF KY
OPINION AFFIRMING
** ** ** ** **

BEFORE: NICKELL AND VANMETER, JUDGES; LAMBERT,1 SENIOR JUDGE.
VANMETER, JUDGE: Eddie Dwayne Muncy (Muncy) appeals from the final judgment of the Bell Circuit Court sentencing him to ten years’ imprisonment for two counts of first-degree trafficking in a controlled substance. For the following reasons, we affirm.

1195 - FAMILY LAW, CHILD SUPPORT
ARTERBURN V. FIRST COMMUNITY BANK
OPINION AFFIRMING
** ** ** ** ** BEFORE: CLAYTON, MOORE, AND VANMETER, JUDGES.

VANMETER, JUDGE: Michael S. Finck appeals from an order entered by the Jefferson Circuit Court, Family Division, regarding his child support obligation. We affirm.

1198 - CORPORATIONS, PIERCING CORPORATE VEIL
INTER-TEL, INC. VS. LINN STATION PROPERTIES, LLC
OPINION AFFIRMING
** ** ** ** ** BEFORE: CAPERTON AND DIXON, JUDGES; HENRY,1 SENIOR JUDGE.

HENRY, SENIOR JUDGE: Inter-Tel, Inc. (“Inter-Tel”) and Inter-Tel Technologies, Inc. (“Technologies”) appeal from an opinion and order of the Jefferson Circuit Court granting a motion for summary judgment brought by Linn Station Properties, LLC. Inter-Tel is the parent corporation of Technologies, which was in turn the parent corporation of Integrated Telecom Services Corporation (“ITS”). ITS is now defunct. The sole issue on appeal is whether the circuit court correctly determined that the corporate veil of ITS may be pierced and that Inter-Tel and Technologies are consequently liable for a default judgment that Linn Station obtained against ITS. Having reviewed the circuit court’s decision, we affirm.

1201 - REAL ESTATE MORTGAGE, SURETY, SUPERSEDEAS BOND
LAWYERS MUTUAL INS. CO. OF KY. VS. STEWART
OPINION AFFIRMING
** ** ** ** ** BEFORE: NICKELL AND WINE, JUDGES; HARRIS, SENIOR JUDGE.

WINE, JUDGE: Lawyers Mutual Insurance Company of Kentucky (“Lawyers Mutual”) appeals a final order of the Knox Circuit Court denying its motion for enforcement of a supersedeas bond against the surety thereon. The issue presented is whether a surety upon a supersedeas bond can escape liability thereon without further order of the court when its principal purpose has been extinguished. For the reasons set forth herein, we find that a surety cannot be bound when a supersedeas bond fails to stay execution of a judgment.

Discretionary Review Grants - October 2009

Michael Stevens — 2009-11-21T06:57:37-05:00

Discretionary Review Grants - October 1, 2009 (September minutes): NONE

Michael Stevens — 2009-11-21T06:46:48-05:00

No motions for discretionary review were granted in September per Oct. 1, 2009 minutes.

Discretionary Review Grants - Pending - As of Aug. 19, 2009

ATTORNEY DISCIPLINE: SCOKY for October 29, 2009

Michael Stevens — 2009-11-21T06:34:45-05:00

ATTORNEY DISCIPLINE

A. Kentucky Bar Association v. Roger P. Elliott
2009-SC-000549-KB October 29, 2009

The Supreme Court entered an order confirming attorney’s automatic suspension pursuant to SCR 3.166(1). The rule mandates an automatic suspension from the practice of law for any attorney that pleads guilty to a felony, effective the day following the plea. The attorney had pled guilt to theft of services already rendered, in violation of KRS 514.090.

B. Kentucky Bar Association v. David R. Steele
2009-SC-000246-KB October 29, 2009

The attorney was publicly censured by the Supreme Court of Tennessee for his handling of two personal injury claims. The Supreme Court of Tennessee determined that the attorney had 1) accepted a referral from an unregistered intermediary, 2) prospectively limited his malpractice liability, 3) represented both clients despite a conflict of interest between the clients; and 4) distributed the settlement proceeds from both cases in a single check with the required letter of explanation. In response to the Kentucky Supreme Court’s show cause order, the attorney argued that he should not be subject to reciprocal discipline since the same clients had also filed a bar complaint against him in Kentucky and the matter had been dismissed for adjudication in Tennessee, where the alleged misconduct occurred. The Court rejected this argument, noting that the attorney had not alleged fraud or lack of jurisdiction in Tennessee or that his misconduct warranted a different discipline in Kentucky. Accordingly, the Court issued a public reprimand to the attorney.

C. Kentucky Bar Association v. Luann C. Glidewell
2009-SC-000462-KB October 29, 2009

The Supreme Court ordered attorney suspended from the practice of law for 181 days. In one case, the attorney failed to respond to a show cause order, causing her client’s case to be dismissed. In the other, the attorney failed to file a timely answer resulting in a default judgment against her client. The attorney represented to the client’s new legal counsel that she would file a motion to set aside the default judgment-- even though her license was suspended at the time.

D. Kentucky Bar Association v. Gregory Curtis Menefee
2009-SC-000467-KB October 29, 2009

Ordered attorney permanently disbarred as a result of ten separate disciplinary files against him. Attorney was found to have repeatedly accepted funds from his bankruptcy clients intended for creditors and then failed to make the payments, refund the money or offer an accounting. The Court held that in light of the attorney’s failure to respond to disciplinary authorities and the potential criminal nature of his actions, permanent disbarment was the appropriate sanction.

E. Kentucky Bar Association v. Bruce D. Atherton
2009-SC-000560-KB October 29, 2009

The Supreme Court entered an order confirming attorney’s automatic suspension pursuant to SCR 3.166(1). The rule mandates an automatic suspension from the practice of law for any attorney that pleads guilty to a felony, effective the day following the plea. The attorney pled guilty to federal charges of accessory after the fact to a conspiracy to commit mail and wire fraud.

WORKERS COMP - commencement of benefits: Betty J. Sweasy v. Wal-Mart; ALJ; & Workers’ Compensation Board (SC 10/19/2009)

Michael Stevens — 2009-11-21T06:30:27-05:00

Betty J. Sweasy v. Wal-Mart; ALJ; & Workers’ Compensation Board
2009-SC-000219-WC October 29, 2009
Opinion of the Court. All sitting; all concur.

The Supreme Court reversed the Court of Appeals, holding that the compensable period for permanent partial workers’ compensation begins on the date the impairment arises. The Court of Appeals had previously ruled that KRS 347.730(1)(d) gave the ALJ discretion to award benefits beginning with the date the claimant reached maximum medical improvement (MMI). The Supreme Court held that neither the Court of Appeals nor the employer (the Appellee) could point to a reasonable basis for benefits to commence on any date other than when the impairment or disability arose.

LEGAL NEGLIGENCE - conflicts of interest, insurance representation: Stephen R. Chappell, Individually and as partners and/or employees of Landrum & Shouse, et al. v. Kuhlman Electric Corp. AND Kuhlman Electric Corp.

Michael Stevens — 2009-11-21T06:27:35-05:00

Stephen R. Chappell, Individually and as partners and/or employees of Landrum & Shouse, et al. v. Kuhlman Electric Corp. AND Kuhlman Electric Corp. v. Stephen R. Chappell, Individually and as partners and/or employees of Landrum & Shouse, et al.
2006-SC-000140-DG October 29, 2009
2006-SC-000144-DG October 29, 2009
Opinion by Special Justice Crittenden; Justice Noble and Justice Schroder not sitting.

From 1977 until 1988 Kuhlman Electric was covered under a workers’ compensation insurance policy issued by Amerisure. Among other things, the insurer agreed to provide legal representation to Kuhlman against workers’ compensation claims. In 1977, Burgess, a Kuhlman employee, was injured on the job and filed for benefits. Amerisure retained the firm of Landrum & Shouse to defend Kuhlman. In 1988, Kuhlman ended its relationship with Amerisure and opted to become selfinsured. Amerisure remained obligated to Kuhlman for future claims that arose from the period of coverage.

In 1991, Burgess sought to reopen his award and Amerisure again retained Landrum & Shouse to defend Kuhlman. Landrum & Shouse filed a motion on Kuhlman’s behalf to add Kuhlman as a party, suggesting that Burgess may have actually suffered a new injury rather than reaggravating the one from 1977. The ALJ granted the motion and Burgess subsequently filed a motion of his own claiming he had suffered a new injury. Since Kuhlman was now a self-insured entity, it, and not Amerisure, would be liable for a new injury, Kuhlman objected to Burgess’ new injury theory. However, the ALJ held that Kuhlman was estopped from raising a defense on that point since the motion to join Kuhlmann as a party had originally suggested the 1991 injury was new. The ALJ subsequently ruled Burgess had incurred a new injury and Kuhlman was ordered to pay him benefits.

In 2001, Kuhlman filed suit claiming legal malpractice against Landrum & Shouse and bad faith against Amerisure. The trial court awarded summary judgment to Landrum & Shouse and Amerisure. On appeal, the Supreme Court rejected Landrum & Shouse’s argument that Kuhlman Electric / Self-Insured was somehow a different entity from Kuhlman Electric—one to whom Landrum & Shouse owed no duty. The Court held that the fact that Kuhlman Electric was Landrum & Shouse’s client did not change once Kuhlman’s interests became adverse to Amerisure’s. However, the Court held that even if Landrum & Shouse had withdrawn from representing Kuhlman once the conflict of interest became apparent, it would not have changed the outcome of the case since the medical evidence that the injury was new would not have changed. To prevail on a legal negligence claim, a party must show that but for the attorney’s negligence the result of the case would have been different. Since Kuhlman could not meet that standard, the Court held that summary judgment had been proper. Special Justice Vesper (joined by Justice Scott) concurred in part and dissented in part, contending that if Landrum & Shouse had shared its conclusions about the “new injury theory” with Kuhlman, it might not have been estopped from later defending that point, thus possibly avoiding the adverse ruling. The minority would have remanded back to the trial court for further consideration of the motion for summary judgment.

WORKERS COMP - multiplies and intentional safety violations: Kentucky Associated General Contractors Self-Insurance Fund(KAGC) v. Music Construction, Inc. (SC 10/29/2009)

Michael Stevens — 2009-11-21T06:21:07-05:00

Kentucky Associated General Contractors Self-Insurance Fund(KAGC) v. Music Construction, Inc.
2008-SC-000795-DG October 29, 2009
Opinion of the Court. All sitting; all concur.

Employee suffered permanent and total disability from a trench collapse. KOSHA subsequently cited the employer for intentional safety violations. Because of these violations, employee sought and received a 30% enhancement to his disability award, as allowed under KRS 342.165(1). KAGC, the employer’s workers’ compensation insurance carrier (the Appellant), sued the employer for reimbursement of the amount of the increase in benefits, citing a specific exclusion in the contract of insurance. The trial court dismissed the suit for failure to state a claim. The Court of Appeals affirmed the dismissal, holding that under AIG/AIU v. South Akers Mining, the claim was barred. The Supreme Court reversed, noting that AIG/AIU did not apply since it was a workers’ compensation case involving a statutory requirement that carriers promptly pay all benefits. By contrast, the Court held this case was centered on a contract dispute where the injured worker has no stake or interest in the outcome. The Court remanded the case back to the circuit court.

CRIMINAL - Jurors (challenges, rehabilitating): Richard Gabbard v. Commonwealth of Kentucky (SC 10/29/2009)

Michael Stevens — 2009-11-20T01:04:20-05:00

Richard Gabbard v. Commonwealth of Kentucky
2008-SC-000062-MR October 29, 2009
Opinion by Justice Noble. All sitting; all concur.

Gabbard argued hismurder conviction must be reversed under Shane since he was forced touse two peremptory strikes to remove two jurors who should have beenstruck for cause. The Supreme Court held that the trial court should havestruck one of the jurors for cause after admitting she had already formedan opinion that Gabbard was guilty. The Court admitted the issue was a“tough call,” but held that the trial court relied too much on the juror’sstatements that she could set aside her personal views and base herdecision solely on the evidence. The Court noted that under Montgomery,pervasive bias or prejudice cannot be rehabilitated by using “magicquestions.” On the strike sheet, Gabbard’s defense counsel identified thejurors he would have struck if he had not been required to use hisperemptory challenges on the jurors that he believed should have beenstruck for cause. One of the jurors identified in this manner actually sat onthe jury-- thus the exception to Shane did not apply and the conviction wasreversed. Further, the Court formally adopted this practice as arequirement, holding that henceforth “in order to complain on appeal thathe was denied a peremptory challenge by a trial judge’s erroneous failureto grant a for-cause strike, the defendant must identify on his strike sheetany additional jurors he would have struck.”

CRIMINAL - Double jeopardy: Tommie Brown v. Commonwealth of Kentucky (SC 10/29/2009)

Michael Stevens — 2009-11-20T00:59:46-05:00

Tommie Brown v. Commonwealth of Kentucky
2008-SC-000281-MR October 29, 2009
Opinion by Justice Noble. All sitting; all concur.

Brown was convicted ofmultiple charges after an incident where he led police on a high-speedchase. On appeal, the Court reversed Brown’s convictions of two countsof second-degree wanton endangerment as violative of the prohibition ondouble jeopardy. Applying the test from Blockburger, the Court held that second-degree wanton endangerment requires proof of no facts beyondthose required to prove first-degree fleeing or evading police, of whichBrown had also been convicted.

The Court affirmed the rest of Brown’sconvictions, holding that:1) Brown was not entitled to a directed verdict due to insufficiency ofthe evidence.2) Brown was not denied an impartial tribunal because of approvingstatements made by the trial court after the jury gave its sentencerecommendation.3) There was no error by the trial court in allowing the jury to hearthat Brown’s passenger was a 16 year old high school student,since the information was not unduly emphasized or intended toarouse sympathy.4) It was error for the trial court to instruct the jury that the passengerwas a high school student as part of its second-degree wantonendangerment instruction-- but the issue was not properlypreserved and did not rise to the level of palpable error.

CRIMINAL - Forensic interviewer, consecutive sentencing (sex crimes): Michael Cecil v. Commonwealth of Kentucky (SC 10/29/2009)

Michael Stevens — 2009-11-20T00:39:46-05:00

Michael Cecil v. Commonwealth of Kentucky
2008-SC-000159-MR October 29, 2009
2008-SC-000369-MR October 29, 2009
Opinion by Justice Cunningham; all sitting.

Cecil was indicted on two counts of first-degree rape and one count of intimidating a participant in the legal process. The first count of rape involved Cecil’s eight year old niece. The rape was witnessed by the victim’s brother, whom Cecil threatened to kill—leading to the intimidation charge. The second victim was Cecil’s 14 year old sister-in-law. Cecil successfully moved to have the trials severed, and he was convicted in the first and entered a conditional guilty plea in the second. The cases were then consolidated on appeal. The Court affirmed Cecil’s conviction in the first case, rejecting his argument that a forensic interviewer’s testimony about her interview with the victim improperly bolstered the victim’s own testimony. The Court held the testimony was probative and admissible to refute suggestions the interviewer had coached the victim. The Court also held that Cecil was not entitled to a jury instruction on first-degree sexual abuse since there had been no evidence presented at trial that penetration had not occurred. The Court remanded the case for a new sentencing hearing on the second rape conviction. As amended in 2006, KRS 532.110(d) requires that sentences for felony sex crimes be served consecutively. Since Cecil’s crimes were all committed prior to 2004, the Court held that application of the amendment to Cecil was improper under the ex post facto clauses of the state and federal constitutions. Justice Schroder (joined by Justice Noble) concurred in result only, contending that the forensic interviewer’s testimony had improperly bolstered the victim’s testimony—but that the error was harmless.

CRIMINAL - disclosure of agreement re testifying witnesse; criminal facilitation: Andre Finnell v. Commonwealth of Kentucky (SC 10/29/2009)

Michael Stevens — 2009-11-20T00:37:41-05:00

Andre Finnell v. Commonwealth of Kentucky
2008-SC-000085-MR October 29, 2009
Opinion by Justice Noble. All sitting; all concur.

Finnell was convicted of facilitation of first-degree robbery, reckless homicide and PFO-2 for his role in a homicide that occurred during a narcotics transaction. On appeal, Finnell argued that the trial court should not have permitted testimony from a former cellmate, since the prosecution did not disclose its agreement with the witness until after voir dire had begun. The Court held that Finnell had adequate, if not timely, notice and since he was able to cross-examine the witness about the agreement with the prosecution, the delay did not rise to the level of reversible error. The Court also rejected Finnell’s argument that the jury should have been given an instruction on facilitation to reckless homicide, noting that facilitation requires 4 knowledge that a person intends to commit a crime. Since a person cannot “intend” to commit reckless homicide, one cannot facilitate reckless homicide. The Supreme Court affirmed the conviction, but remanded for a new penalty phase, holding that it was improper for the prosecutor to rely upon an unofficial record (CourtNet) to establish Finnell’s prior convictions.

CRIMINAL LAW - Crime, pattern of criminal abuse, range of dates: Roy Applegate v. Commonwealth of Kentucky (SC 10/29/2009)

Michael Stevens — 2009-11-18T21:04:57-05:00

Roy Applegate v. Commonwealth of Kentucky
2007-SC-000444-MR October 29, 2009
Opinion by Justice Schroder; all sitting.

Applegate was convicted of one count each of first degree rape, first degree sodomy and incest and was sentenced to 30 years imprisonment. On appeal, he argued that the indictment alleged that he raped and sodomized his daughter an unspecified number of times and thus the prosecutor was criminalizing “a pattern of criminal abuse”-- an offense not enacted by the General Assembly. In so doing, Applegate argued, the prosecution had usurped the authority of the legislative branch, in violation of the separation of powers clause. The Court held the indictment was proper, noting that Applegate was not charged with multiple, identical indictments for the same offenses, rather he had only been charged with one count each of rape, sodomy and incest and that it is unreasonable to expect a victim of “tender years” to remember specific dates, given the long period of time over which the abuse occurred. Applegate next argued that the indictment’s lack of specificity violated his protection against double jeopardy because he could be arrested, indicted or convicted in the future for crimes against the victim during the same time period. The Court held that since such future jeopardy had not yet occurred, there was no real and justiciable controversy, thus the issue was not ripe for appeal. However, the Court ruled that “a defendant who is charged and convicted of a sexual crime that occurred during a range of time cannot subsequently be charged with the same crime against the same person during the period stated in the
original conviction.”

Applegate also argued that since the indictment alleged a range of dates, there was no way to know if the jury agreed on a specific incident of sexual abuse, thus violating his right to a unanimous jury verdict. The Court held that there was no unanimity problem since Applegate was only charged with one count per offense and noted that trial courts are not required to identify evidentiary detail in jury instructions when a defendant is charged with only one count of an offense. Applegate also claimed the trial court erred by not allowing him to personally crossexamine a prosecution expert and the victim. The Court agreed that the trial court’s reason for denying the request was unsound (i.e. Applegate was not a trained attorney), but held that Applegate’s request, which was made on the second day of trial, was not timely. Further, the Court noted that Applegate had no right to personally cross-examine the victim and that he had no basis for his proposed line of questioning to the prosecutor’s expert (that the expert had not really examined the victim and had fabricated medical records). Lastly, Applegate argued it was an error for the trial court to determine, in the presence of the jury, that two of the prosecution’s witnesses were experts, thus bolstering the credibility of the witnesses, as well as that of the victim, whose testimony these witnesses corroborated. The Court, relying on Luttrell, observed that such determination should be made outside the presence of the jury. However, in light of the evidence and the fact that Applegate had been able to crossexamine the witnesses, the Court concluded that the error was harmless and the conviction was affirmed. Justice Cunningham concurred in result only by separate opinion, contending that Luttrell does not prohibit informing the jury that a witness is an expert and that the purpose of qualifying witnesses is to enhance their credibility in the eyes of the jury.

CRIMINAL LAW - Admissibility of drug use when no intoxicated: Steve Burton v. Commonwealth of Kentucky (SC 10/29/2009)

Michael Stevens — 2009-11-18T20:59:37-05:00

Steve Burton v. Commonwealth of Kentucky
2006-SC-000784-MR October 29, 2009
Opinion by Justice Scott; all sitting.

After a head-on collision with another vehicle, Burton was convicted of manslaughter, second-degree assault and operating a motor vehicle on a suspended license. On appeal, Burton argued that he was unduly prejudiced by the introduction of his urinalysis results showing trace amounts of cocaine and marijuana. The results did not show intoxication or the time of ingestion. The prosecution argued that the results were relevant to show wanton conduct on the part of Burton. The majority distinguished the case from published opinions where after intoxication was established by other means, urinalysis results were then deemed relevant to show the type of intoxicant. The Court ruled that the relevance of the urinalysis results depended upon “the conclusions compelled by supporting evidence” and held that in this instance the prosecution lacked supporting evidence to make the urinalysis results relevant. The Court reversed the manslaughter and assault convictions and affirmed the driving on a suspended license conviction. The Court also warned the trial court on remand to scrutinize under KRE 702 the proposed testimony of a certain prosecution witness—a “drug recognition” instructor. Chief Justice Minton (joined by Justice Abramson and Justice Cunningham) concurred in part and dissented in part, asserting the majority’s opinion represented a “startling departure from precedent.” The minority contended that Burton’s drug use in the recent past was “a relevant and probative factor from which the jury could have reasonably inferred that Burton was impaired at the time of the tragic accident.” Justice Abramson (joined by Chief Justice Minton and Justice Cunningham) also concurred in part and dissented in part by separate opinion, arguing that the statement of the paramedic who treated Burton
provided “supporting evidence” to make the urinalysis results relevant.

SEARCH AND SEIZURE - Dui Roadblocks: Mark E. Bauder v. Commonwealth of Kentucky (SC 10/29/2009)

Michael Stevens — 2009-11-18T20:53:05-05:00

Mark E. Bauder v. Commonwealth of Kentucky
2008-SC-000056-DG October 29, 2009
Opinion by Justice Cunningham; all sitting.

Bauder entered a conditional plea to DUI charges, reserving his right to appeal the trial court’s denial of his motion to suppress evidence from the traffic stop as a violation of his right against unreasonable seizure. Bauder was pulled over after he turned onto a side street in order to bypass a Kentucky State Police DUI roadblock. The trooper admitted that he pulled Bauder over just as he did all motorists who try to evade roadblocks. The trooper also testified that he did not observe Bauder committing an offense prior to stopping him, but based upon his considerable experience, motorists who tried to evade roadblocks were often intoxicated or driving on a suspended license. The Court held that under Terry, the trooper had a reasonable suspicion that criminal activity was afoot to make a stop. The majority relied upon Steinbeck, a 1993 Court of Appeals opinion to uphold the stop and affirm the conviction, holding that under the totality of the circumstances, the traffic stop was justified and that to hold otherwise would entitle motorists to “simply blow through roadblocks with a wave and contemptuous grin.” The Court concluded that there “would be no law on our highways.”

The dissenters (Justice Venters, joined by Chief Justice Minton and Justice Noble) dismissed this conclusion as “absurd hyperbole.” The minority contended that the majority had expanded Steinbeck to allow police to “apprehend and detain any person who acts in a manner that suggests an aversion to police contact.”

CIVIL PROCEDURE - Statute of Limitations (SOL) tolled by conduct of defendant: Tim Emberton v. GMRI Inc. (d/b/a Red Lobster Restaurant #349), et al. (SC 10/29/2009)

Michael Stevens — 2009-11-18T20:46:21-05:00

Tim Emberton v. GMRI Inc. (d/b/a Red Lobster Restaurant #349), et al.
2007-SC-000443-DG October 29, 2009
2008-SC-000109-DG October 29, 2009
Opinion by Justice Scott; all sitting.

Emberton sued GMRI after he contracted the hepatitis A virus at one of its Red Lobster restaurants. Following trial, the jury awarded Emberton $8666 in medical expenses, plus $225,000 for pain and suffering. The Court of Appeals reversed on the grounds that Emberton’s suit was barred by the one-year statute of limitations. The Court of Appeals ruled Emberton “failed to investigate the source of his illness when reasonable diligence could have revealed the likely tortfeasor within the statutory period.” The Supreme Court reversed and reinstated the jury’s award, holding that the statute of limitations on Emberton’s claim was tolled under KRS 413.190(2) since GMRI, through its district manager, engaged in conduct that was “intentionally deceptive and designed to prevent public disclosure of [the GMRI employee’s] infection though the health department, the restaurant’s employees and its patrons.” The Court rejected GMRI’s challenge to the constitutionality of KRS 360.040—which establishes Kentucky’s post-judgment interest rate. The Court also ruled against GMRI’s appeals of evidentiary issues, the pain and suffering award and its claim of an inconsistent verdict at trial.

Chief Justice Minton and Justice Abramson concurred in result only.

CIVIL PROCEDURE - Dismiss for lack of prosecution: Brian Jaroszewski & Amy Page-Jaroszewski v. Charles F. Flege & Karen Jaroszewski (SC 10/29/2009)

Michael Stevens — 2009-11-18T20:41:29-05:00

Brian Jaroszewski & Amy Page-Jaroszewski v. Charles F. Flege & Karen Jaroszewski
2008-SC-000112-DG October 29, 2009
Opinion by Chief Justice Minton; all sitting.

Plaintiffs in a tort action appealed the trial court’s grant of defendant’s motion to dismiss for lack of prosecution (CR 41.02). The Court of Appeals remanded the case back to the trial court to reconsider the motion in light of the factors set forth in Ward (1: extent of party’s personal responsibility for the delay; 2: history of dilatoriness; 3: whether attorney’s conduct is willful or in bad faith; 4: merits of plaintiff’s claim; 5: lack of availability of alternative sanctions). On remand, the trial court again granted dismissal; the Court of Appeals affirmed. The Supreme Court affirmed, holding that when considering motions to dismiss for lack of prosecution, trial courts must consider the totality of the circumstances, not just the factors listed in Ward, and must make an explicit finding of fact. The Court declined to create a formula to be applied mechanically in all cases. Rather, the Court opted to fashion guidelines for trial courts based on Ward and others circumstances surrounding the case. The Court reviewed the Ward factors as they applied to this dispute, and considered the other relevant factors before affirming. Justice Venters concurred by separate opinion, contending that trial courts should also consider whether the party moving for dismissal has taken steps towards resolving the case prior to moving to dismiss— likening the situation to where criminal defendants must assert their right to a speedy trial before claiming it has been violated.

SCOKY MONTHLY CASE SUMMARY REPORT: October 2009

Michael Stevens — 2009-11-18T20:28:43-05:00

For a short digest and link to the full text of the published decision of the Supreme Court of Kentucky for October, 2009, CLICK HERE.

COA Argument Calendar for November 2009 - Dates; Nov. 2, 4 & 5, 2009

Michael Stevens — 2009-11-16T22:06:36-05:00

I apologize for not posting the COA argument calendar in a timely fashion. For archival purposes and a general sense of completeness, here it is.

COA Argument Calendar for October 2009 - Dates; Nov. 2, 4 & 5, 2009

SCOKY Oral Arguments for November 18, 19 & 20, 2009

Michael Stevens — 2009-11-16T22:00:24-05:00

Appellate briefs are posted at the Northern Kentucky University, Salmon P. Chase College of Law. Click here. If the briefs have been filed at NKU at the time of this post, then they are linked here. If the briefs were not available on line, Click here and enter the Supreme Court, Month, and year to pull of the results for the briefs filed in the month you need to search.

For Kentucky Supreme Court LIVE arguments, click here on date and time of argument.

The issues, dates, times, lower court/judge, counsel, AND links to full text of briefs and COA decision are below! The actual calendars are on line at AOC - Click here.

SUPREME COURT OF KENTUCKY

ORAL ARGUMENT CALENDAR

WEDNESDAY, NOVEMBER 18, 2009

9:00 a.m. WATKINS V. COMMONWEALTH OF KENTUCKY (2008-SC-567-DG)
"Criminal Law. Standing. Search and Seizure. Abandonment. Issues include whether a suspect's immediate flight from a vehicle after being pulled over constitutes abandonment and thereby deprives the suspect of standing to contest the subsequent search of the vehicle."
Discretionary Review granted 12/10/2008
Todd Circuit Court, Judge Tyler L. Gill
For Movant: Linda Roberts Horsman
For Respondent: Heather Michelle Fryman

2007CA000869

Appellant's Brief

Appellee's Brief

Appellant's Reply Brief

10:00 a.m. MEMBERS CHOICE CREDIT UNION, ET AL. V. HOME FEDERAL SAVINGS AND LOAN ASSOCIATION (2008-SC-877-DG)
"Credit Unions. Statutory Construction. The issue is whether KRS 286.6-107(2) permits membership in a credit union predicated on where a person lives ('geographic field of membership.')"
Discretionary Review granted 2/11/2009
Franklin Circuit Court, Judge Phillip J. Shepherd
For Movants: David Thomas Wilson II
For Respondent: Jill F. Endicott

2007CA002353

Appellant's Brief

Appellee's Brief

Appellant's Reply Brief

11:00 a.m. DR. GHASSAN HAJ-HAMED V. OHIC INSURANCE COMPANY
(2008-SC-127-DG)
"Malpractice Insurance. Negligent Cancellation of Contract.
KRS 304.20-320(2)(b). At issue is whether malpractice insurance carrier failed to give proper notice of cancellation of an insurance contract with physician and, if so, the proper measure of damages."
Discretionary Review granted 2/11/2009
Campbell Circuit Court, Judge Julie R. Ward
For Movant: Robert Edward Blau
For Respondent: Robert C. Welleford and Tonya Sue Conner Rager

2006CA000200

Appellant's Brief

Appellee's Brief

Appellant's Reply Brief

THURSDAY, NOVEMBER 19, 2009

9:00 a.m. JONES, ET AL. V. COMMONWEALTH OF KENTUCKY (2007-SC-922-DG)
"Judicial revocation of conditional discharge. Constitutionality of KRS 532.043(5)."
Discretionary Review granted 10/15/2008
Hickman Circuit Court, Judge Hunter Whitesell
Calloway Circuit Court, Judge Dennis Foust
For Movants: Donald H. Morehead and Jamesa J. Drake
For Respondent: David Wayne Barr and Courtney J. Hightower

2006CA000897

Appellant's Brief

Appellee's Brief

Appellant's Reply Brief

10:00 a.m. JAMES V. JAMES (2008-SC-163-DG)
"Civil Procedure. Appeals. CR 60.02. CR 73.02(1)(d). Issues include whether relation forward doctrine applies to prematurely filed notice of appeal."
Discretionary Review granted 1/14/2009
Taylor Circuit Court, Judge Doughlas M. George
For Movant: Charles Thomas Hectus
For Respondent: Scott P. Zoppoth and Jennifer Lynn Hulse

2007CA001837

Appellant's Brief

Appellee's Brief

Appellant's Reply Brief

11:00 a.m. GALLATIN HEALTH CARE, LLC, ET AL. V. SHARON CLARK, IN HER OFFICIAL CAPACITY AS COMMISSIONER FOR THE KENTUCKY DEPARTMENT OF INSURANCE AND REHABILITATOR OF AIK CORP, ET AL. (2008-SC-381-TG)
"Approval of Rehabilitator's Settlement Agreement with the officers and trustees of AIK Corp."
Franklin Circuit Court, Judge Thomas D. Wingate
For Appellants: Robert W. Bishop, Ronald Richard Parry, J. Guthrie True,
For Appellees: Perry Mack Bentley, Walter L. Sales, John Melvin Camenisch, Jr., Paul C. Harnice, Justin Drew Clark, Charles G. Middleton III, Charles D. Greenwell, John Edward Hanley II, John Key Schoen, and Joseph Allan Cobb

2008CA000945

Appellant's Brief

Appellee's Brief

Appellant's Reply Brief

FRIDAY, NOVEMBER 20, 2009

9:00 a.m. CINCINNATI INSURANCE COMPANY V. MOTORISTS MUTUAL INSURANCE COMPANY (2008-SC-293-DG)
"Insurance. Property damage. Contractors. At issue is whether contractual recovery may be premised upon a builder's substandard work."
Discretionary Review granted 2/11/2009
Jefferson Circuit Court, Judge Mary M. Shaw
For Movant: Michael D. Risley and Brandon Wade Smith
For Respondent: William P. Swain, David Sean Ragland and
Paul Joseph Bishop

2007CA000818

Appellant's Brief

Appellee's Brief

Appellant's Reply Brief

10:00 a.m. HEER V. FRASER, ET AL. (2008-SC-280-DG)
"Oil and Gas. Leases. Where oil lease required that a well be 'commenced' by
a date certain, and lessee cleaned out pre-existing, formerly producing well
and produced oil, with no additional drilling, the issue is whether these actions by lessee constituted commencement of a well."
Discretionary Review granted 3/11/2009
Metcalfe Circuit Court, Judge Phillip R. Patton
For Movant: Bryan Edward Bennett
For Respondents: William Colvin

2006CA001489

Appellant's Brief

Appellee's Brief

Appellant's Reply Brief

11:00 A.M. SPENCER V. ESTATE OF CHARLES SPENCER (2008-SC-191-DG) AND
ESTATE OF CHARLES SPENCER V. SPENCER (2008-SC-196-DG)
"Joint Accounts. Multiple Party Accounts Act. KRS 391 .315(1)(a). Issues include whether a joint brokerage account is a joint account for purposes of KRS 391.315(1)(a), which provides the sums remaining on the death of one party go to the surviving party as against the estate."
Discretionary Review granted 2/11/2009
McCracken Circuit Court, Judge R. Jeffrey Hines
For Lila Faye Spencer: Richard L. Walter and Samuel Scott Marcum
For Estate of Charles Spencer: Mark Lane Ashburn

2007CA000277

Appellant's Brief

Appellee's Brief

Appellant's Reply Brief

COA 2009 Minutes: November 13, 2009 (Nos. 1154-1179)

Michael Stevens — 2009-11-15T13:53:47-05:00

COA 2009 Minutes: November 13, 2009 (Nos. 1154-1179)[link corrected 11/17/2009)

26 decisions
6 published

PUBLISHED DECISIONS WITH LINKS TO FULL TEXT

1157
FAMILY LAW
Marital property, garnishment and responsibility for early-withdrawal penalties & tax consequences

James Atkisson v. Kathleen Atkisson
JEFFERSON COUNTY
OPINION AFFIRMING APPEAL NO. 2008-CA-000376-MR; AND REVERSING IN PART AND REMANDING APPEAL NO. 2008-CA-001774-MR
** ** ** ** ** BEFORE: ACREE, STUMBO, AND WINE, JUDGES.
WINE, JUDGE: James Atkisson (“James”) brings these consolidated appeals from a judgment and post-judgment orders of the Jefferson Family Court involving the dissolution of his marriage to Kathleen Atkisson (“Kathleen”). First, James appeals from the court’s judgment restoring Kathleen’s non-marital interest in the residence, dividing the parties’ interest in a timeshare property, and awarding temporary maintenance and attorney fees to Kathleen. We find no reversible error in the trial court’s rulings on these issues. In the second appeal, James contends that Kathleen filed premature garnishment writs against certain tax-deferred accounts, causing him to incur substantial penalties and taxes. We agree with the trial court that Kathleen was within her rights to file the garnishment writs when she did. However, we also find that the trial court abused its discretion by requiring James to be solely responsible for the early-withdrawal penalties and tax consequences caused by the garnishment. Hence, we affirm in part, reverse in part and remand with directions for the trial court to make appropriate adjustments in its allocation of the marital estate.

1159
ARBITRATION
Affirmed enforcement of award

FIA Card Services N.A. v. Michael P. Callahan
JEFFERSON COUNTY
OPINION REVERSING AND REMANDING
** ** ** ** ** BEFORE: ACREE, TAYLOR AND THOMPSON, JUDGES.
ACREE, JUDGE: FIA Card Services, N.A., formerly known as MBNA America Bank N.A. (FIA), appeals from the denial by the Jefferson Circuit Court of FIA’s Petition and Application to Confirm and Enforce Arbitration Award against Michael Callahan. No brief was filed on behalf of Callahan. After considering the record in this case and the law applicable thereto, we find that the trial court should have confirmed and enforced the arbitration award. Accordingly, we reverse.

1164
BUSINESS LAW
Garnishment, attorneys fees, etc.

Sandra C. Brooks v. Lexington- Fayette Urban County Government
OPINION AFFIRMING
** ** ** ** ** BEFORE: KELLER, MOORE AND NICKELL, JUDGES.
NICKELL, JUDGE: This case reaches our Court for the third time following seventeen years of contentious litigation. It has been the subject of published opinions from this Court and the Supreme Court of Kentucky.1 The issues raised in this appeal are whether the trial court erred in granting the Lexington-Fayette Urban County Housing Authority its costs and expenses incurred in its successful bid to quash enforcement of a non-wage garnishment, and in denying Sandra C. Brooks’ (“Brooks”) request for attorney’s fees. These issues arise from orders of the Fayette Circuit Court entered on August 7, 2008, and October 10, 2008. Although separately appealed, the matters have been consolidated for purposes of our review.

As correctly stated by the trial court, it is well settled in Kentucky that attorney’s fees are awarded only to the prevailing party. CR 54.04, KRS 344.450. Brooks did not prevail on any portion of the litigation for which she now seeks reimbursement for her attorney’s fees. She cites no authority supportive of her proposition that she is somehow still entitled to receive the requested fees and we are convinced none exists. The trial court correctly found the fee application was unreasonable and the amounts sought were non-compensable under the law. Again, there was no abuse of discretion.

1170
GOVERNMENT, OPEN MEETINGS STATUTE

Lexington-Fayette Urban County Government v. LEXHL, LP
OPINION AFFIRMING
** ** ** ** ** BEFORE: STUMBO, THOMPSON, AND WINE, JUDGES.
WINE, JUDGE: The Lexington-Fayette Urban County Government (“LFUCG”) appeals from a summary judgment entered by the Fayette Circuit Court which dismissed its declaratory judgment against Lexington H-L Services, Inc., d/b/a Lexington Herald Leader (“Herald-Leader”). The LFUCG sought a declaration that the litigation exception to the Open Meetings Act allows it to close council meetings in order to answer requests for information propounded by administrative agencies. The trial court concluded that the matter was moot because the underlying action was no longer pending before the agency. We agree. Furthermore, the LFUCG has not shown that this issue is capable of repetition which would allow review. Hence, we affirm the trial court’s dismissal of the action as moot.

1171
TORTS, EMPLOYMENT
Intentional infliction of emotional distress, disability discrimination
William Bohl v. City of Cold Spring
OPINION AFFIRMING
** ** ** ** **
BEFORE: NICKELL AND VANMETER, JUDGES; LAMBERT,1 SENIOR JUDGE.
LAMBERT, SENIOR JUDGE: This appeal is from the trial court’s summary judgment in favor of Appellee on Appellant’s claims for disability discrimination, retaliation, constructive discharge, intentional infliction of emotional distress (“IIED”), and disability harassment. For the reasons stated herein, we affirm.

In this case, Appellant made a prima facie showing of the “essential functions” element, because he produced evidence that he continued to perform his job to the satisfaction of his employer after he was diagnosed with multiple sclerosis, to and including the day he ceased working as a detective. Chief Burk stated in his deposition that there were no job performance issues with Appellant at any point during his time with the Department or after he was diagnosed with multiple sclerosis and that he was performing his job duties to the Department’s satisfaction. Therefore, from this evidence and in view of the low threshold showing required of a plaintiff, we conclude that Appellant provided sufficient proof to meet his prima facie case as to this element.

1175
FAMILY LAW
Custody
Karen Temple v. Philip Temple
OPINION AFFIRMING
APPELLEES
** ** ** ** ** BEFORE: NICKELL AND WINE, JUDGES; HARRIS,2 SENIOR JUDGE.
NICKELL, JUDGE: This appeal flows from the filing of a custody petition by N.T.’s maternal grandmother, Cheryl McCauley. Karen Temple, the natural mother of N.T., appeals from an order entered by the Owsley Circuit Court on November 18, 2008, adopting the findings of fact, conclusions of law and decree proposed by a special domestic relations commissioner (DRC) who found Karen had waived her superior right to her son’s custody by not seeking custody for herself; awarded custody of N.T. to Cheryl; allowed Karen and her father, Phillip Temple, to share visitation with N.T. at least one weekend of each month; and directed Karen to pay $60.00 to Cheryl each month in child support. After reviewing the record and the law, we affirm.