Kentucky Court Report - SCOKY & COAKY

COA 2009 Minutes: October 30, 2009 (Nos. 1100-1136)

Michael Stevens — 2009-11-01T19:03:24-05:00

COA 2009 Minutes: October 30, 2009 (Nos. 1100-1136)

37decisions
9 published

PUBLISHED DECISIONS WITH LINKS TO FULL TEXT

1101 - WHISTLEBLOWER ACT, PRIMA FACIE CASE
POWERS V. LEXINGTON-FAYETTE URBAN COUNTY GOV'T
AFFIRMING AS TO APPEAL AND CROSS-APPEAL
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; ACREE, JUDGE; BUCKINGHAM,1 SENIOR JUDGE.
ACREE, JUDGE: After a jury verdict in favor of her former employer Lexington- Fayette Urban County Government (LFUCG), Donna Powers appeals the trial court’s denial of her motions for directed verdict, for judgment notwithstanding theverdict, and for a new trial, on her claim brought pursuant to Kentucky’s Whistleblower Act, KRS 61.101 et seq. (the Act). LFUCG cross-appeals, arguing that Powers failed to present evidence of a prima facie case and, therefore, the trial court erred by not directing a verdict in its favor. Finding neither appeal meritorious, we affirm as to both.

1102 - PROPERTY LAW, EQUITABLE SUBROGATION, LIEN PRIORITY
ROBERTS V. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.
REVERSING AND REMANDING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; THOMPSON, JUDGE; BUCKINGHAM,1 SENIOR JUDGE.
THOMPSON, JUDGE: Joseph B. Roberts appeals from an order of the Henderson Circuit Court granting a motion for default and summary judgment made by Mortgage Electronic Registration Systems, Inc. (MERS). Roberts argues that the trial court erred when it applied the doctrine of equitable subrogation and held that MERS’s lien had priority over his lien in a foreclosure action. We reverse and remand the case for further proceedings.

1113 - PROPERTY, FORECLOSURE, GUARDIAN AD LITEM FOR INCARCERATED
GOLDSMITH V. FIFTH THIRD BANK
VACATING AND REMANDING
** ** ** ** ** BEFORE: ACREE, STUMBO, AND WINE, JUDGES.
WINE, JUDGE: Appellant, Martin Goldsmith (“Goldsmith”), appeals from an entry of summary judgment in favor of the appellee, Fifth Third Mortgage Company (“Fifth Third”) concerning four properties he owned which were sold at foreclosure sale and purchased by Fifth Third. On appeal, he argues that the foreclosure sales were invalid as he was incarcerated at the time of the proceedingsand a guardian ad litem was not properly appointed pursuant to Kentucky Rules of Civil Procedure (“CR”) 17.04. He also argues that Fifth Third lacked standing to submit its motion for summary judgment because it no longer had liens on the subject properties at the time the motion was filed. We disagree.

1115 - INSURANCE, NO FAULT ACT, ADDED REPARATION BENEFITS, COVERAGE/STACKING
CAIN V. AMERICAN COMMERCE INS. CO., INC.
AFFIRMING
** ** ** ** ** BEFORE: ACREE, STUMBO, AND WINE, JUDGES.
STUMBO, JUDGE: Julia Cain appeals from a Declaratory and Final Judgment of the Jefferson Circuit Court interpreting KRS 304.39-140 and determining that American Commerce Insurance Company, Inc. fully satisfied its obligation to pay benefits under an insurance policy it issued to Cain. After being injured in an automobile accident in which the other driver was at fault, Cain received basicreparation benefits of $10,000.00 from American Commerce plus added reparation benefits of $20,000.00 for each of her three vehicles for a total of $70,000.00. In an action initiated by American Commerce seeking a declaratory judgment, the Jefferson Circuit Court determined that American Commerce fully satisfied its obligation to Cain. Cain now argues that the court erred in failing to conclude that she was entitled to $40,000.00 in added reparation benefits per vehicle for a total of $130,000.00 ($10,000.00 in basic reparation benefits plus $120,000.00 in added reparation benefits). We agree with the reasoning of the Jefferson Circuit Court, and accordingly affirm the Declaratory and Final Judgment on appeal.

1116 - CRIMINAL, NEW TRIAL
COMMONWEALTH OF KY. V. BREWER
OPINION AND ORDER REVERSING AND REINSTATING CONVICTION
** ** ** ** ** BEFORE: ACREE, TAYLOR AND THOMPSON, JUDGES.
APPELLEE
ACREE, JUDGE: The Commonwealth appeals from the July 1, 2008 order of the Jefferson Circuit Court voiding the jury verdict and granting Kelly Gaye Brewer a new trial. For the following reasons, we reverse.

1119 - CRIMINAL, SENTENCING, DEVORE HEARING
CAMPBELL V. COMMONWEALTH OF KY
AFFIRMING
** ** ** ** ** BEFORE: CAPERTON, DIXON AND TAYLOR, JUDGES.
APPELLEE
CAPERTON, JUDGE: James Campbell appeals the denial by the Fayette Circuit Court of his Kentucky Rules of Civil Procedure (CR) 60.02 motion to correct his sentence in light of the recent Kentucky Supreme Court opinion of Peyton v. Commonwealth, 253 S.W.3d 504 (Ky. 2008).1 Campbell argues that he was entitled to relief and an evidentiary hearing under CR 60.02 as his sentence is now in error because the trial court followed the Devore interpretation of KRS 533.060(2), now overruled by Peyton. He also argues that the trial court wrongfully denied his motion for additional findings of fact and conclusions of law under CR 52.04, filed after the trial court overruled his current CR 60.02 motion. The Commonwealth disagrees. After a review of the parties’ arguments, the record, and the applicable law, we find no error in the denial of either Campbell’s CR 60.02 motion nor his CR 52.04 motion by the Fayette Circuit Court and, accordingly, we affirm.

1121 - CONTRACTS - ASSIGNABILITY OF COVENANTS NOT TO COMPETE
KEGEL V. TILLOTSON
REVERSING AND REMANDING
** ** ** ** ** BEFORE: CAPERTON, DIXON AND TAYLOR, JUDGES.
APPELLEE
CAPERTON, JUDGE: Russ Kegel and Mona Kegel (d/b/a Unique Promotional Products)(hereinafter Kegel) appeal the September 29, 2008, order of the McCracken Circuit Court granting the motion for summary judgment filed by Appellee, Roxanna Tillotson (Tillotson), and simultaneously denying the motion for summary judgment filed by Kegel. After a thorough review of the record, the arguments of the parties, and the applicable law, we reverse and remand.

In agreeing with this reasoning, we are compelled to agree with the
Appellants that the trial court, in the matter sub judice, erred in finding that the non-compete clause was not assignable. Accordingly, we reverse, and turn to the second issue raised on appeal, concerning whether or not the court below correctly found that the non-compete clause in the matter sub judice was unconscionable.

As noted, the court below found, without further elaboration, that “the non-compete clause with its term of 5 years and distance of 350 miles was so unconscionable as to be void on its face as against public policy . . . .” Having reviewed the record and the arguments of the parties, this Court is of the opinion that the court below prematurely entered judgment on the issue of unconscionability. At the time that the court entered summary judgment, no depositions had been taken, substantial evidence had not been gathered, and only one set of interrogatories had been exchanged.

As this Court previously held in Hammons v. Big Sandy Claims Service, Inc., 567 S.W.2d 313 (Ky. App. 1978), agreements on restraint of trade are reasonable if, “on consideration of the subject, nature of the business, situation of the parties and circumstances of the particular case, the restriction is such only as to afford fair protection to the interests of the covenantee and is not so large as to interfere with the public interests or impose undue hardship on the party restricted.” Id. at 315. Clearly, whether or not a particular non-compete clause is conscionable is an issue that is highly fact specific and, we believe, will more appropriately be addressed in the course of additional discovery.

In addition, our courts have adopted a “blue pencil” rule, whereby we are empowered to reform or amend restrictions in a non-compete clause if theinitial restrictions are overly broad or burdensome. As stated by this Court in Hammons, supra, at 315, “[w]here the covenant as originally drawn has been found too broad, courts have had no difficulty in restricting it to its proper sphere and enforcing it only to that extent.” See also Ceresia v. Mitchell, 242 S.W.2d 359 (Ky. 1951).

Accordingly, we believe it appropriate to remand this matter to the court below for additional findings on the issue of unconscionability, as well as a determination as to what, if any, action is appropriate by the court under the “blue pencil” rule.

1129 - APPEALS, ANDERS BRIEFS
G.(C.R.) V. CABINET FOR HEALTH AND FAMILY SERVICES
AFFIRMING
** ** ** ** ** BEFORE: STUMBO, THOMPSON AND WINE, JUDGES.
THOMPSON, JUDGE: C.R.G. a/k/a C.R.M. (mother) and M.M. (father) appeal an order of the Kenton Family Court terminating their parental rights to their minor children. The parents’ counsel filed briefs in which they state they were unable to find error which would entitle the parents to relief and requested this Court to review the record for prejudicial error pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.E.2d 493, reh’g denied, 388 U.S. 924, 87 S.Ct. 2094, 18 L.E.2d. 1377 (1967).

An Anders brief supplements a motion to withdraw filed after counsel has conscientiously reviewed the record and found the appeal to be frivolous. In Anders, the court outlined the proper procedure to be followed as follows:A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court-not counsel-then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal. Id. at 744, 87 S.Ct. at 1400. The Supreme Court referred only to criminal cases to which the Sixth Amendment right to counsel applies and did not extend its decision to civil cases. A review of the case law reveals that the states have not reached a uniform decision as to whether Anders is applicable to termination of parental rights cases. However, the majority of states that have addressed the scope of Anders have held it applicable to termination of parental rights appeals on the basis of the right to counsel under their own state laws. See In re N.B., 183 N.C.App. 114, 644 S.E.2d 22 (2007) (discussing the view that an Anders brief may be filed in termination of parental rights appeals).

The issue of the applicability of Anders has not been brought to the attention of this Court by the parties and, because the briefs filed are not accompanied by motions to withdraw, we decline to consider them as Anders briefs and to address whether Anders may be invoked in a termination of parental rights case. Instead, we have thoroughly reviewed the record and conclude that the family court’s findings are supported by clear and convincing evidence. Therefore, we affirm the order terminating the parents’ parental rights.

1134 - JUVENILES, COMMITTING MINOR TO CUSTODY OF CABINET
S.(J.) V. COMMONWEALTH OF KY
AFFIRMING
** ** ** ** ** BEFORE: ACREE, CAPERTON AND KELLER, JUDGES.
ACREE, JUDGE: J.S., a child under the age of eighteen, seeks reversal of the Fayette County Family Court decision committing him to the Cabinet for Health and Family Services (Cabinet) as a habitual runaway. The family court determined that commitment was necessary to end J.S.’s delinquent behavior and ensure his safe withdrawal from a local gang. J.S’s status as a habitual runaway, coupled with his extensive involvement with the gang, rendered community-based alternatives inadequate. The decision of the family court is affirmed.

SCOKY 2009 Minutes: October 29, 2009 (Nos. 218-248)(minutes for Oct.)

Michael Stevens — 2009-11-01T11:35:11-05:00

October 29, 2009 Supreme Court Minutes

Decisions 218-248
41 decisions with 12 published
5 published disciplinary cases
6 motions for rehearing denied (none granted)
14 motions for discretionary review granted with 80 motions denied

Link to full text published decisions with Questions Presented as noted on the SCOKY minutes are as follows:

218
CHAPPELL V. KUHLMAN ELECTRIC CORP.
Questions Presented:
Professional Negligence. Damages. In this legal malpractice action, issues include: (1) whether the fiduciary duties of an attorney retained by an insurer to represent an insured employer in the reopening of a prior workers' compensation proceeding also extend to the employer in its current capacity as self-insured ; and, if so, (2) whether the insured sustained damages as a result of the attorney's placing the interests of the insurer (or the employer as an insured) ahead of those of the employer in its capacity as self-insured.

219
ROY APPLEGATE V. COMMONWEALTH OF KENTUCKY
Questions Presented:
Convictions of first-degree rape, first- degree sodomy and incest and thirty year sentence affirmed. Indictment sufficiently stated an offense and did not violate double jeopardy. Determination of expert’s status in the jury’s presence was harmless error.

220.
MARK E. BAUDER V. COMMONWEALTH OF KENTUCKY
2008-SC-000056-DG BOYLE
Questions Presented:
Criminal Law. Sobriety Checkpoint. Investigative Traffic Stop. Primarily at issue is whether a driver's turn onto a public road within sight of a police roadblock provides police with reasonable suspicion of criminal activity justifying an investigative traffic stop.

221.
BRIAN JAROSZEWSKI, ET AL. V. CHARLES F. FLEGE, ET AL. TO BE PUBLISHED
2008-SC-000112-DG GRANT
Questions Presented:
Civil Procedure. Failure to Prosecute. Dismissal of Complaint. Issues include whether trial court abused discretion by dismissing plaintiffs' complaint for failure to prosecute, on defendants' motions pursuant to CR 41.02.

222. STEVE BURTON V. COMMONWEALTH OF KENTUCKY
2006-SC-000784-MR HICKMAN
Questions Presented:
Second-degree manslaughter and second-degree assault convictions reversed. Undue prejudice arose from the admission of urinalysis results which outweighed its probative value under KRE 403. Conviction for operating a motor vehicle with a suspended license affirmed.

223. ANDRE FINNELL V. COMMONWEALTH OF KENTUCKY
2008-SC-000085-MR KENTON
Questions Presented:
Convictions of robbery and reckless homicide affirmed, but sentence is set aside and case remanded for a new penalty phase due to improper use of Courtnet rather than properly authenticated prior convictions.

224. MICHAEL CECIL V. COMMONWEALTH OF KENTUCKY
2008-SC-000369-MR 2008-SC-000159-MR JEFFERSON
Questions Presented:
Judgment as to counts of first-degree rape and intimidating a participant in the legal process upheld. Judgment on guilty pleas to second rape charge reversed and remanded; application herein of KRS 532.110(1) (d) is prohibited by the ex post facto clause.

225. TOMMIE BROWN V. COMMONWEALTH OF KENTUCKY
2008-SC-000281-MR FULTON
Questions Presented:
Convictions for first-degree fleeing or evading police and second-degree wanton endangerment constitute double jeopardy. The lesser offenses of second-degree wanton endangerment are reversed and vacated. All other convictions are affirmed.

226. TIM EMBERTON V. GMRI, INC., F/K/A GENERAL MILLS RESTAURANTS, INC. (D/B/A RED
LOBSTER RESTAURANT #349), ET AL.
2007-SC-000443-DG 2008-SC-000109-DG WARREN
Questions Presented:
Trial court judgment reinstated. Statute of limitations did not run due to the defendant’s active concealment of the plaintiff’s probable cause of action.

227. RICHARD GABBARD V. COMMONWEALTH OF KENTUCKY
2008-SC-000062-MR LEE
Questions Presented:
Trial court erred in failing to strike a juror for cause who had stated that she had made up her mind that the defendant was guilty. Error is reversible when, as here, defendant identifies on his strike sheet additional jurors he would have struck but for the erroneous ruling.

228. BETTY J. SWEASY V. WAL-MART STORES, INC.
2009-SC-000219-WC
Questions Presented:
Workers' Compensation. The compensable period for partial disability commences on the date that impairment and disability arise, without regard to the date of MMI, the worker's disability rating, or the compensable period's duration.

229. KENTUCKY ASSOCIATED GENERAL CONTRACTORS SELF-INSURANCE TO BE PUBLISHED
FUND (KAGC) V. MUSIC CONSTRUCTION, INC.
2008-SC-000795-DG MONTGOMERY
Questions Presented:
Contracts. Workers Compensation Reimbursement. AIG/AIU Insurance Company v. South Akers Mining Company, 192 S.W.3d 687 (Ky. 2006), did not bar an insurer who paid an employee all benefits for a 2001 injury, including a 30% increase under KRS 342.165(1), from seeking reimbursement under the terms of its contract with the employer.

WORKERS COMP - Employer estopped from denying compensability, billings by physician not accepting WC schedule: Sullivan v. Wolf Creek Collieries (COA 9/11/2009)

Michael Stevens — 2009-11-01T05:27:09-05:00

Sullivan v. Wolf Creek Collieries

2009-CA-000385 9/11/09 2009 WL 2901561 Released for pub. Opinion by Senior Judge Harris; Judges Moore and Nickell concurred. The Court affirmed a decision of the Workers’ Compensation Board finding that an employer was equitably estopped from contesting a worker’s treatment for depression but that the employer was only estopped from denying compensability to the date of the ALJ’s decision. The worker was treated by a physician who did not accept Kentucky workers’ compensation patients and with whom the worker entered into an arrangement whereby the worker paid for his treatment out of pocket and was then reimbursed by the employer

The Court held that it was undisputed that the balance billing arrangement violated KRS 342.020(1) and KRS 342.035(2) and once the employer filed the medical fee dispute, the worker was on notice that the fees were being challenged and he could no longer rely upon past representations or omissions on the employer’s part.

WORKERS COMP - KRS 342.730(3) reduction applied to settlements in case of first impression: Bell v. Consol of Kentucky, Inc. (COA 9/4/2009)

Michael Stevens — 2009-11-01T05:24:24-05:00

Bell v. Consol of Kentucky, Inc.
2009-CA-000673 9/4/09 2009 WL 2830950 Released for pub.

Opinion by Senior Judge Harris; Judges Moore and Nickell concurred. The Court affirmed a decision by the Workers’ Compensation Board affirming a decision of the ALJ to reduce benefit payments by 50%, pursuant to KRS 342.730(3), after the worker died in an accident. In a case of first impression, the Court held that KRS 342.730(3) applies to settlement agreements.

The Court further held that KRS 342.265(4) and KRS 342.125 were not applicable, as the issue was how remaining benefits of an award were to be distributed to a widow after the employee’s death from a non-work related injury. The Court rejected the argument that the application of KRS 342.730(3) was contrary to public policy.

ADDED by Ky Court Report is statutory extract:

KRS 342.730(3)(a) provides:

(3) Subject to the limitations contained in subsection (4) of this section, when an employee, who has sustained disability compensable under this chapter, and who has filed, or could have timely filed, a valid claim in his lifetime, dies from causes other than the injury before the expiration of the compensable period specified, portions of the income benefits specified and unpaid at the individual’s death, whether or not accrued or due at his death, shall be paid, under an award made before or after the death, for the period specified in this section, to and for the benefit of the persons within the classes at the time of death and in the proportions and upon the conditions specified in this section and in the order named:

(a) To the widow or widower, if there is no child under the age of eighteen (18) or incapable of self- support, benefits at fifty percent (50%) of the rate specified in the award[.]

WILLS & ESTATES - Failure to join indispensable party, claim for funeral expenses: Rice v. Steele (C OA 9/18/2009)

Michael Stevens — 2009-11-01T05:19:00-05:00

Rice v. Steele
2008-CA-000308 9/18/09 2009 WL 2971596

Opinion by Judge Lambert; Judge Acree and Senior Judge Harris concurred. The Court dismissed appellant’s appeal from an order dismissing her claims against her mother’s estate and vacated in part and remanded a partial summary judgment in favor of appellant on her claim for restitution for her mother’s funeral expenses.

The Court granted appellee’s motion to dismiss the appeal for appellant’s failure to join her siblings. The siblings were named defendants in the court below. Therefore, in their individual capacities, they were indispensable and naming the estate alone was fatal. The Court then held that the trial court erred in granting partial summary judgment to appellant on the claim of restitution for funeral expenses when the motion for summary judgment failed to name and serve the siblings.

WILLS & ESTATES - Illegitimates claim to father's property barred by SOL: Combs v. Mullins (COA 9/18/2009)

Michael Stevens — 2009-11-01T05:16:45-05:00

Combs v. Mullins
2008-CA-000776 9/18/09 2009 WL 2971636 DR pending

Opinion by Judge Moore; Judge Lambert concurred; Judge VanMeter dissented by separate opinion. The Court affirmed an order of the circuit court dismissing appellant’s claim for an interest in property filed over thirty years after his father’s death.

Appellant argued that Pendleton v. Pendleton, 560 S.W.2d 538 (Ky. 1977) (Pendleton II), holding KRS 391.090 (prohibiting an illegitimate child from inheriting from his father) unconstitutional, did not have a retroactive effect on the devolution of a title and that establishing a firm date for the application of retroactivity resulted in a violation of his federal equal protection rights and unjustifiably stripped him of his right to inherit from his father. The Court held that it was bound by the holding in Turner v. v. Perry County Coal Corp., 242 S.W.3d 658 (Ky. App. 2007), and Pendleton II, as the Court had considered whether to overrule Turner but the majority had refused to do so. Therefore, because the father died intestate in 1975, before the Pendleton II decision was rendered, title to the property properly passed to the legitimate children on that date and appellant did not inherit an interest in the property. Thus, the trial court properly dismissed the complaint.

TORTS - Punitive damages, impeachment by employment of witness, pain and sufferering prior to death, voir dire, juror signing verdict: Fuel Transport, Inc. v. Gibson (COA 9/25/2009)

Michael Stevens — 2009-11-01T05:13:32-05:00

Fuel Transport, Inc. v. Gibson
2008-CA-000969 9/25/09 2009 WL 3047578 Rehearing pending

Opinion by Judge Clayton; Judge Thompson and Senior Judge Lambert concurred. The Court affirmed in part and reversed in part a judgment of the circuit court entered subsequent to a jury verdict in favor of an estate in a wrongful death case awarding compensatory and punitive damages.

The Court first held that the trial court did not abuse its discretion in denying a motion for a new trial based on a claim of juror misconduct. During voir dire, appellants failed to ask a proper question to elicit a response they complained was prejudicially omitted by the juror. Further, the juror did not sign the verdict form awarding compensatory damages. The Court next held that, although appellant failed to exercise reasonable care in failing to fix the coal truck that caused the accident, the failure did not rise to the level of wanton or reckless disregard for others so as to prove the gross negligence necessary for an award of punitive damages. Therefore, the trial court erred in overruling appellant’s motion for a directed verdict on the issues of punitive damages. The Court next held that the trial court properly admitted an affidavit regarding the ownership of the coal truck and the employment of the driver, as it affected the credibility of a key witness. The Court next held that appellants waived the right to challenge the award for pain and suffering when they failed to object to the $2 million limit on possible recovery. Even so, the award was supported by evidence that the deceased had intervals of consciousness until her death. The court then held that appellants’ failure to object to jury instruction until immediately prior to the reading of the instructions to the jury, and failure to request an instruction limitation for “conscious” pain and suffering, waived the issue. The Court finally held that the trial court properly denied appellants’ requests for change of venue.

TORTS - TP Negligence claim and workers comp injury, experts, impaired earning capacity, discovery sanctions: Boland-Maloney Lumber Company, Inc. v. Burnett (COA 9/11/2009)

Michael Stevens — 2009-11-01T05:09:53-05:00

Boland-Maloney Lumber Company, Inc. v. Burnett
2008-CA-000059 9/11/09 2009 WL 2901206 DR pending

Opinion by Judge Wine; Judges Acree and Stumbo concurred. The Court affirmed on direct appeal and reversed on cross-appeal a judgment of the circuit court entered subsequent to a jury verdict in favor of the injured person in a negligence action involving an injury occurring on a staircase.

The Court first held that the trial court did not abuse its discretion in allowing the matter to proceed to the jury absent expert testimony on the defendant’s duty. The uniformity of stair risers on a stairway is an abundantly apparent standard, even among laypersons, so that anyone could interpret the exceptional foreseeability of risk. The Court then held that the trial court did not err in refusing to allow any apportionment of fault to a subcontractor. The right to apportionment did not extend to the subcontractor that had been determined not to be liable as a matter of law. The Court then held that the trial court had the inherent authority to enforce its orders and therefore, did not err in refusing to grant a motion to allow expert testimony when the defendant failed to disclose the experts after an order was entered that no additional discovery would be allowed. The Court then held that the trial court did not abuse its discretion in allowing testimony from an economic expert concerning the injured person’s earning capacity. Although the testimony was not based on actual earnings at the time of injury, nothing precluded testimony on the impairment to earn money or the use of a “proxy” to do so, where current earnings were not indicative of earning power. The Court then held that the trial court did not err in allowing testimony in violation of an order that the plaintiff’s witnesses could not testify that the stairs violated the Kentucky Building Code. The defendant waived the issue when it failed to object to the testimony at trial, defendant’s counsel brought up the reference to the Kentucky Building Code, and the testimony was not in violation of the order. The Court then held that the defendant’s failure to specifically object to the final written instructions precluded review but even so, although the present case was not a premises liability case, the use of the term “unreasonably dangerous” was often found instructed in cases other than products liability when dealing with an ordinary care standard so that the trial court did not abuse its discretion in including the instruction. The Court finally held that the trial court erred in excluding evidence related to plaintiff’s claim for future prescription medication expenses. Although there was no expert testimony as to the amount of medication required or the likely cost of the medication over the remainder of the plaintiff’s lifetime, the plaintiff entered the yearly cost of the prescription drugs by avowal and the doctors testified that the plaintiff suffered from a seizure disorder which would likely require him to take medication for the remainder of his life. The Court reversed and remanded for a determination on the sole issue of future prescription medication expenses.

PROPERTY - KRS 67.0802 exchanges w/federal gov't: Southside Real Estate Developers, Inc. v. Pike County Fiscal Court (COA 9/4/2009)

Michael Stevens — 2009-11-01T05:04:34-05:00

Southside Real Estate Developers, Inc. v. Pike County Fiscal Court
2008-CA-001534 9/4/09 2009 WL 2835138 Released for pub.

Opinion by Judge VanMeter; Judges Lambert and Moore concurred. The Court affirmed an order of the circuit court finding that a county fiscal court’s failure to comply with the requirements of KRS 67.0802 in its decision to exchange property conveyed to it from the federal government, after completion of a flood control project prevented appellant from maintaining an action to compel conveyance of the property from the fiscal court.

The Court first held that the trial court properly concluded that the decision to exchange the property did not comply with statute, which required either a transfer to another governmental agency or a public sale by auction or sealed bid. The Court then held that the requirements of the statute were not preempted by federal law so that the only requirement for transfer of the property would be the approval of the federal government. The Energy and Water Development Appropriation Act, under

which the flood control project was initiated, did not manifest Congressional intent to preempt state requirements on the transfer of real estate owned by counties; no express preemption existed; and compliance with both federal and state requirements concerning the transfer of real property was not physically impossible.

PROPERTY - Prescriptive easement, injunction: Little v. Hall (COA 9/25/2009)

Michael Stevens — 2009-11-01T05:02:10-05:00

Little v. Hall
2008-CA-001702 9/25/09 2009 WL 304764

Opinion by Judge VanMeter; Chief Judge Combs and Senior Judge Lambert concurred. The Court affirmed an order of the circuit court granting permanent injunctive relief barring appellants from obstructing a road across their property.

The Court held that after remand from the Court of Appeals, the trial court did not err in finding that appellees used the road under a claim of right and acquired a prescriptive easement across the property. Appellants offered no affirmative evidence to meet their burden of proving that appellees used the road by permission rather than under a claim of right and appellees satisfied the “very slight evidence” standard by producing evidence that they continued using the road in a manner consistent with a belief that they were entitled to do so indefinitely.

PROPERTY - Foreclosure, right of redemption: Eagle Cliff Resort, LLC v. KHBBJB, LLC (COA 9/4/2009)

Michael Stevens — 2009-11-01T05:00:26-05:00

Eagle Cliff Resort, LLC v. KHBBJB, LLC
2008-CA-000676 9/4/09 2009 WL 2835020 Released for pub.

Opinion by Judge Acree; Judge Dixon and Senior Judge Graves concurred. The Court affirmed an order of the circuit court confirming a judicial sale of commercial property following foreclosure by the mortgage holder.

The Court held that the trial court did not err by failing to protect appellant’s right of redemption under KRS 426.530(1). The trial court conducted a hearing to determine whether the appraisal was irregular, fraudulent or so erroneous as to be unconscionable. The trial court’s order set out, and the record substantiated, that the appraisal was sufficient to protect redemption rights. Despite the large gap between the appraisals by the court-appointed appraisers and the appraisal privately obtained, appellant failed to demonstrate any abuse of discretion by the circuit court.

FAMILY LAW - Maintenance, change of circumstances: Daunhauer v. Daunhauer (COA 9/4/2009)

Michael Stevens — 2009-11-01T04:58:21-05:00

Daunhauer v. Daunhauer
2008-CA-000378 9/4/09 2009 WL 2834838 Released for pub.

Opinion by Judge Acree; Judge Nickell and Senior Judge Knopf concurred. The Court reversed an order of the family court denying a motion to terminate appellant’s maintenance obligation created by an order dissolving the parties’ marriage.

The Court held that appellee’s ability to meet her financial needs with her own resources constituted a change in the parties’ circumstances so substantial and continuing as to render the continuation of the obligation unconscionable.

EMPLOYMENT - Ky Civil Rights Act, discrimination, prima facie case: Woods v. Western Kentucky University (CA 9/11/2009)

Michael Stevens — 2009-11-01T04:56:41-05:00

Woods v. Western Kentucky University
2008-CA-001825 9/11/09 2009 WL 2901520 DR pending

Opinion by Judge VanMeter; Judges Keller and Stumbo concurred. The Court affirmed a directed verdict in favor of Western Kentucky University on appellant’s claim that the change in the qualifications for a director’s position for which she applied was racially motivated in violation of the Kentucky Civil Rights Act (KCRA).

The Court held that under the burden-shifting approach of McDonnell Douglas Corp. v. Green, 411 U.S. 702, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Kentucky Ctr.For the Arts v. Handley, 827 S.W.2d 697 (Ky. App. 1991), appellant was unable to meet the burden of establishing a prima facie case of discrimination. She was objectively unqualified for the position since she did not possess a doctorate degree or faculty experience at the time she applied. Even so, the University offered legitimate, nondiscriminatory reasons for changing the qualifications. Appellant’s own opinions about her work qualifications did not sufficiently cast doubt on the reasons proffered by the University.

EMPLOYMENT - Workers compesation, retaliatory discrimination, attorneys fees: Colorama, Inc. v. Johnson (COA 9/4/2009)

Michael Stevens — 2009-11-01T04:54:41-05:00

Colorama, Inc. v. Johnson

2008-CA-000443 9/4/09 2009 WL 2834950 Released for pub. Opinion by Judge Caperton; Judges Thompson and Wine concurred. The court affirmed a judgment entered subsequent to a jury verdict finding that the employer retaliated or discriminated against a worker for filing a workers’ compensation claim

The Court first held that the worker met his burden to establish a prima facie case of discrimination Filing the workers’ compensation claim was an activity expressly protected under KRS 342.197, the employer knew that he had done so, the jury’s factual finding that the worker was terminated was not clearly erroneous, and the worker presented sufficient evidence for the jury to believe he was terminated in retaliation for seeking workers’ compensation benefits. The Court distinguished the case from Wymer v. JH Properties, Inc., 50 S.W.3d 195 (Ky. 2001), because the worker in the instant case was released to return to work without restriction, he said he wanted to try to perform the work and he may have been able to assume a light duty position. While the evidence might have been conflicting, it was for the jury to weigh the evidence and reach a conclusion. Therefore, the Court did not err in denying the employer’s motion for a directed verdict. The Court finally held that the award of attorney fees and costs were authorized by KRS 342.197(3) and the trial court did not abuse its discretion in making the award. Even so, the employer’s failure to name the worker’s attorney as a party to the appeal ultimately precluded review of the issue.

TORTS - FELA, SOL, judicial admissions: Zapp v. CSX Transportation, Inc. (COA 9/25/2009)

Michael Stevens — 2009-11-01T04:51:25-05:00

Zapp v. CSX Transportation, Inc.
2008-CA-001362 9/25/09 2009 WL 3047630 Rehearing pending

Opinion by Judge Taylor; Chief Judge Combs and Judge Nickell concurred. The Court reversed and remanded an order of the circuit court granting a motion for directed verdict for an employer on an employee’s claim under the Federal Employers’ Liability Act (FELA).

The circuit court found that the claim was barred by the statute of limitations. The Court held that the circuit court erred by deeming the employee’s testimony a judicial admission and by usurping the prerogative of the jury to decide a disputed issue of fact - when the statue of limitations was triggered. While the employee testified that his hand symptoms worsened while working in 1999, the circuit court erroneously inferred that the employee knew or should have known that the injury was caused by work duties in 1999.

CRIMINAL - Sentencing, Pretrial Diversion: Tucker v. Commonwealth (COA 9/25/2009)

Michael Stevens — 2009-11-01T04:48:49-05:00

Tucker v. Commonwealth
2007-CA-001545 9/25/09 2009 WL 3047488

Opinion by Senior Judge Harris; Chief Judge Combs and Judge Thompson concurred. The Court reversed and remanded with instructions to dismiss an indictment with prejudice and to list the case as “Dismissed-Diverted” pursuant to KRS 533.528.

The Court held that because the Commonwealth failed to seek to have appellant’s Class D Felony Pretrial Diversion voided, as required by KRS 533.256(1), before the expiration of the pretrial diversion period, the trial court lacked authority to revoke the pretrial diversion.

CRIMINAL - Interstate Agreement on Detainers: Roskie v. Commonwealth (COA 9/25/2009)

Michael Stevens — 2009-11-01T04:47:01-05:00

Roskie v. Commonwealth
2008-CA-001466 9/25/09 2009 WL 3047638

Opinion by Senior Judge Harris; Chief Judge Combs and Judge Thompson concurred. The Court affirmed an order of the circuit court denying appellant’s motion to dismiss his indictment pursuant to the Interstate Agreement on Detainers (IAD), KRS 440.450.

The Court held that appellant waived his right to have final disposition of his case within 180 days by accepting a trial date that would occur after the time period lapsed.

Criminal Law - Sentencing, restitution: Rollins v. Commonwealth (COA 9/4/2009)

Michael Stevens — 2009-10-31T16:43:50-04:00

Rollins v. Commonwealth
2008-CA-000074 9/4/09 2009 WL 2834831 Released for pub.

Opinion by Judge Wine; Judge Moore and Senior Judge Henry concurred. The Court reversed an order of the circuit court setting restitution and an order overruling a motion to reconsider the order, entered after appellant had served out his sentence entered pursuant to a plea agreement that included language stating that appellant had agreed to pay restitution.

The Court held that the trial court lacked jurisdiction to order restitution when no verified petition was filed within the 90 days required by KRS 431.200, the only statute dealing with post-sentencing orders of restitution. The Court further held that RCr 10.10 was inapplicable as the failure to set the restitution amount in the final judgment was not a clerical error but rather was one of substance when the judge and the Commonwealth mistakenly believed that the court could order restitution without specifying an amount and that the amount could be supplemented at any point in the future.

CRIMINAL - Sex offender registration: Robinson v. Commonwealth (COA 9/25/2009)

Michael Stevens — 2009-10-31T16:42:07-04:00

Robinson v. Commonwealth
2008-CA-000975 9/25/09 2009 WL 3047594

Opinion by Judge Thompson; Judge Caperton and Senior Judge Graves concurred. The Court affirmed a judgment of the circuit court entered pursuant to a guilty plea reserving the right to appeal the denial of a motion to amend the indictment from a felony to a misdemeanor.

The Court first held that in amending the sex offender registration statute, KRS 17.510(11), in 2006, the legislature intended to establish a uniform penalty for all sex offenders. Therefore, appellant was subject to the statutory penalty contained in the 2006 version of the statute, which made the penalty for failure to register a Class D felony. The Court also held that the ex post facto clauses of the U.S and Kentucky Constitutions did not prevent the application of the 2006 statute to appellant, as the 2006 statute did not have a real and direct effect on the punishment for appellant’s past crimes but served only to affect the punishment for his commission of a future crime.

CRIMINAL PROCEDURE - Automobile search, drug forfeitures: Robbins v. Commonwealth (COA 9/4/2009)

Michael Stevens — 2009-10-31T16:40:08-04:00

Robbins v. Commonwealth
2007-CA-002262 9/4/09 2009 WL 2833520 DR pending

Opinion by Judge VanMeter; Judge Nickell and Senior Judge Graves concurred.

The Court affirmed a judgment of the circuit court sentencing appellant to four years’ imprisonment for illegal possession of a controlled substance pursuant to a conditional Alford plea. The Court also affirmed an order forfeiting currency found at the time appellant was arrested.

The Court first held that the trial court did not err by failing to suppress the cocaine found appellant’s vehicle. When appellant was arrested, he was a “recent occupant” of a vehicle, he was arrested on an outstanding bench warrant for drug trafficking charges, and he threw drugsunder his vehicle when confronted by the police. Under Arizona v. Gant, ---U.S.---, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), the search of appellant’s vehicle incident to his arrest was clearly justified. The Court next held that the trial court did not err in ordering forfeiture of the currency found at the time of his arrest. KRS 218A.410(1)(j) permitted the forfeiture when the Commonwealth satisfied its burden of making a prima facie case for forfeiture and appellant failed to offer evidence to rebut the presumption supporting forfeiture. The testimony established that appellant was a fugitive from justice on drug charges, he was not employed in any occupation from which taxes were being withheld, more than three grams of cocaine were found under his vehicle and more than three grams of cocaine were found in the driver’s door. The Court next held that the trial court did not abuse its discretion in refusing to compel discovery regarding an unidentified expert witness in the field of narcotics. RCr 7.24(1)(b) did not compel disclosure in the absence of examinations, tests, or experiments made in connection with the case and there was no contention that the expert witness was a known witness, an exculpatory witness or a person who observed or participated in the crime. The Court further held that the trial court did not abuse its discretion by failing to conduct a Daubert hearing to assess the reliability of the proffered testimony by a law enforcement officer who was expected to opine on the drug trade based on his training and experience. The Court next held that the trial court did not err by refusing to compel disclosure of the identity of a confidential informant. The privilege of KRE 508(a) was applicable and the situation did not come within any of the exceptions to the rule when the informant was not a material witness and only provided general information to the officers prior to the date of arrest and was not present at the time of the arrest.