Kentucky Court Report - SCOKY & COAKY

March 9, 2012 COA Minutes -- Nos. 240-264 (25 decisions; 3 published)

Michael Stevens — 2012-04-11T21:53:00-04:00

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PUBLISHED DECISIONS OF COA:

240. CRIMINAL LAW
CORNELIUS (ESLEY DEE), JR.
VS.
COMMONWEALTH OF KENTUCKY
OPINION REVERSING
THOMPSON (PRESIDING JUDGE)
TAYLOR (CONCURS) AND LAMBERT (CONCURS)
2009-CA-001624 -MR
TO BE PUBLISHED
MCCRACKEN

THOMPSON, JUDGE: This case is on remand from the Kentucky Supreme Court, which vacated our prior opinion for reconsideration in light of Mullins v. Commonwealth, 350 S.W.3d 434 (Ky. 2011). Upon reconsideration, we reverse Esley Dee Cornelius, Jr.’s convictions for tampering with physical evidence and first-degree persistent felony offender. The facts leading to Cornelius’s convictions began with his involvement in a drug buy arranged by the McCracken County Sheriff’s Department.

254. FAMILY LAW. Modifying QDRO
WILLIS (LARRY)
VS.
WILLIS (RUBY)
OPINION REVERSING
LAMBERT (PRESIDING JUDGE)
TAYLOR (CONCURS) AND DIXON (CONCURS)
2010-CA-002328-MR
TO BE PUBLISHED
BOYLE

LAMBERT, JUDGE: Larry Willis has appealed from the November 30, 2010, order of the Boyle Family Court modifying a Qualified Domestic Relations Order (“QDRO”) entered on July 16, 2009. Because we hold that the family court abused its discretion in modifying the QDRO under the circumstances of this case, we must reluctantly reverse the family court’s order.

264. FAMILY LAW. CUSTODY. JURISDICTION.
GOSSETT (JESSICA)
VS.
KELLEY (BRIAN SCOTT), ET AL.
OPINION VACATING
ACREE (PRESIDING JUDGE)
COMBS (CONCURS) AND LAMBERT (CONCURS)
2011-CA-001536-ME
TO BE PUBLISHED
HOPKINS

ACREE, JUDGE: On August 8, 2011, the Hopkins Family Court entered an order naming Shannon and Brian Kelley de facto custodians of the minor child of Jessica Gossett and Kenneth “Chip” Gossett and awarding the Kelleys custody. Although Jessica bases her appeal on matters of venue and adequacy of evidence, we are required to vacate the order because the Hopkins Family Court lacked subject matter jurisdiction in this case.

TORT REPORT FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

IF YOU WANT

WORKERS COMPENSATION LAW UPDATES, I RECOMMEND YOU GO TO THE COMP ED WEB SITE AT http://www.comped.net/.
FAMILY LAW UPDATES, I RECOMMEND YOU GO TO Diana Skaggs' Divorce Law Journal at http://www.divorcelawjournal.com

252. CIVIL PROCEDURE
PILLAR DEVELOPMENTS, LLC, ET AL.
VS.
MAINSOURCE BANK, INC.
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
MOORE (CONCURS) AND NICKELL (CONCURS)
2010-CA-002318-MR
NOT TO BE PUBLISHED
JEFFERSON

THOMPSON, JUDGE: Pillar Developments, LLC (Pillar), Sutej S. Gill, and Deborah J. Gill (the Gills) appeal from a summary judgment of the Jefferson Circuit Court in favor of MainSource Bank, Inc. The issue presented by Pillar and the Gills is whether MainSource’s failure to respond to discovery requests in a separate action pending before the same circuit court precluded summary judgment. We hold that summary judgment was proper, but deny MainSource’s request that damages and costs be awarded pursuant to CR 73.02(4).

256. TORT. DOG ATTACKS/BITES. LANDLORD AN OWNER?
FULLER (BRYAN), FATHER AND FRIEND OF ANDREW FULLER
VS.
BLAIR (JOANN), ET AL.
OPINION AFFIRMING
TAYLOR (PRESIDING JUDGE)
DIXON (CONCURS) AND LAMBERT (CONCURS)
2011-CA-000133-MR
NOT TO BE PUBLISHED
CAMPBELL

TAYLOR, CHIEF JUDGE: Bryan Fuller, father and friend of Andrew Fuller, (collectively referred to as Fuller) bring this appeal from a final order entered by the Campbell Circuit Court on December 15, 2010, which made final a summary judgment entered in favor of JoAnn Blair on September 10, 2010, dismissing all claims against her. For the reasons stated, we affirm.

Fuller contends that the circuit court erred by rendering summary judgment dismissing his claims for strict liability and negligence against Blair. Fuller argues that Blair qualifies as an “owner” of the dog under KRS 258.235(4) because Blair knowingly permitted the dog to remain on the rented premises and thus, is strictly liable for Fuller’s injuries. Fuller also argues that Blair was negligent in her role as landlord of the leased premises.

Resolution of the strict liability claim centers upon the legal interpretation of two statutes – KRS 258.235(4) and KRS 258.095(5).
KRS 258.235(4) reads:

Any owner whose dog is found to have caused damage to a person, livestock, or other property shall be responsible for that damage.

KRS 258.095(5) reads:

“Owner,” when applied to the proprietorship of a dog, includes every person having a right of property in the dog and every person who keeps or harbors the dog, or has it in his care, or permits it to remain on or about premises owned or occupied by him[.]

It is well-established that any ambiguous language in a statute must be interpreted to effectuate the underlying intent of the General Assembly. Hearn v. Com., 80 S.W.3d 432 (Ky. 2002); City of Covington v. Kenton Co., 149 S.W.3d 358 (Ky. 2004). In so doing, a statute may not be interpreted or construed to produce an unjust, unreasonable, or absurd result. Wesley v. Board of Educ. of Nicholas Co., 403 S.W.2d 28 (Ky. 1966); Ky. Indus. Utility Customers, Inc. v. Ky. Utilities Co., 983 S.W.2d 493 (Ky. 1998); Executive Branch Ethics Com’n v. Stephens, 92 S.W.3d 69 (Ky. 2002); City of Covington, 149 S.W.3d 358; Revenue Cabinet v. O’Daniel, 153 S.W.3d 815 (Ky. 2005).

Under KRS 258.235(4), an “owner” whose dog “caused damage” is strictly liable for such damage. The term “owner” is generally defined by KRS 258.095(5) and relevant herein is defined as one who “permits it [dog] to remain on . . . premises owned or occupied by him.” We cannot interpret the definition of “owner” in KRS 258.095(5) so broadly to include a landlord of leased premises under the circumstances of this case. Such an interpretation of KRS 258.235(4) and KRS 258.095(5) would result in an injudicious and unwarranted expansion of strict liability in Kentucky. Neither case law nor statutory law supports such an expansion. As previously noted by our Court, KRS 258.095(5) was:

[D]esigned to expand liability to those parties who keep dogs, such as kennel owners, veterinarians, and other persons who keep dogs owned by others in their care, as well as any person who keeps a dog owned by another on their property.

Jordan v. Lusby, 81 S.W.3d 523, 524 (Ky. App. 2002). Simply put, the General Assembly never intended to expand strict liability to a landlord who neither actually “kept” the dog nor was aware of any previous violent tendencies of the dog. See Ireland v. Raymond, 796 S.W.2d 870 (Ky. App. 1990); Jordan, 81 S.W.3d 523. Accordingly, we conclude that Blair was not an “owner” of the dog within the meaning of KRS 258.235(4) and KRS 258.095(5).2 Therefore, Blaircannot be held strictly liable for injuries sustained by Andrew under applicable Kentucky law.3

March 2, 2012 COA Minutes -- Nos. 227-239 (13 decisions; 1 published)

Michael Stevens — 2012-04-09T20:31:45-04:00

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PUBLISHED DECISIONS OF COA:

233. GOVERNMENT. INJUNCTION. DISCLOSURE OF ATTORNEY GENERAL RECORDS
LAWSON (LEONARD)
VS.
OFFICE OF THE ATTORNEY GENERAL, ET AL.
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
ACREE (CONCURS) AND CAPERTON (CONCURS IN PART AND DISSENTS IN PART AND FILES SEPARATE OPINION)
2011-CA-000210-MR
TO BE PUBLISHED
FRANKLIN

VANMETER, JUDGE: Leonard Lawson appeals from a summary judgment entered by the Franklin Circuit Court refusing to grant a permanent injunction to preclude the release of records held by the Office of the Attorney General of Kentucky (“OAG”). The court granted summary judgment in favor of the Courier- Journal, Inc., Lexington Herald-Leader Co., the Associated Press (hereinafter collectively referred to as “News Media”) and the OAG, dissolving the temporary injunction previously granted. For the following reasons, we affirm.

TORT REPORT FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

IF YOU WANT

WORKERS COMPENSATION LAW UPDATES, I RECOMMEND YOU GO TO THE COMP ED WEB SITE AT http://www.comped.net/.
FAMILY LAW UPDATES, I RECOMMEND YOU GO TO Diana Skaggs' Divorce Law Journal at http://www.divorcelawjournal.com

230. TORTS. MISREPRESENTATION, ETC. IN MORTGAGE AGENT FOR COMMERCIAL LOAN.
AARON MORTGAGE COMPANY
VS.
KDS PROPERTIES, INC.
OPINION AFFIRMING IN PART, VACATING IN PART, AND REMANDING.
COMBS (PRESIDING JUDGE)
NICKELL (CONCURS) AND TAYLOR (DISSENTS)
2010-CA-002236-MR
NOT TO BE PUBLISHED
BOYD

COMBS, JUDGE: Aaron Mortgage Company (Aaron Mortgage) appeals from a judgment of the Boyd Circuit Court that awarded KDS Properties, Inc., $1,245.59 in compensatory damages and $70,000.00 in punitive damages. At issue were misrepresentations of the agent of a mortgage company in a commercial loan transaction. Following our review of the proceedings, we affirm in part, vacate in part, and remand.

Feb. 24, 2012 COA Minutes -- Nos. 195-225 (31 decisions; 6 published)

Michael Stevens — 2012-04-08T20:26:18-04:00

Feb. 24, 2012 COA Minutes -- Nos. 195-225 (31 decisions; 6 published)

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PUBLISHED DECISIONS OF COA:

198. TORTS. STATUTE OF LIMITATIONS (COA HOLDS "DISCOVERY RULE" NOT TOLL SOL IN MVRA CLAIMS AND LOSS OF CONSORTIUM CLAIMS)
FROST (NANCY A.), ET AL.
VS.
DICKERSON (BRYAN D.)
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
COMBS (CONCURS) AND LAMBERT (CONCURS)
2010-CA-000537-MR
TO BE PUBLISHED
BOONE

NICKELL, JUDGE: Nancy A. Frost and Glen F. Frost appeal from a Boone Circuit Court order dismissing Nancy’s action for damages and Glen’s action for loss of consortium in this personal injury case stemming from an automobile accident. At issue is whether the “discovery rule” tolls the limitations period for bringing a tort action under Kentucky’s Motor Vehicle Reparations Act (“MVRA”), KRS 304.39-230. We hold that it does not, and, therefore, we affirm.

In this case, the trial court ruled as a matter of law that under KRS 304.39-230(1), a party suffering a loss has two years from the date thereof or two years from the last BRB payment to bring suit. It concluded this action was barred because the Frosts were aware of Dickerson’s identity, and received the last BRB payment on November 13, 2007, yet failed to file suit until December 30, 2009. The court further held that the discovery rule had “not been applied to motor vehicle accident cases to extend the statute of limitations on the allegation that the extent of the injury and the causal connection of some of the injury were unknown.” Finally, the court held that Glen’s action for loss of consortium was barred because it was not covered by the MVRA, and was not brought within the one-year limitations period of KRS 413.140(a), which governs personal injuries.

The Frosts argue that the discovery rule should be applied to toll the

running of the limitations period since Nancy did not know until she received the letter from Dr. Pagani on September 16, 2009, that her severe symptoms were attributable to the accident. “Under the ‘discovery rule,’ a cause of action will not accrue until the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, not only that he has been injured but also that his injury may have been caused by the defendant’s conduct.” Wilson v. Paine, 288 S.W.3d 284, 286-87 (Ky. 2009) (citing Hazel v. General Motors Corp., 863 F.Supp. 435, 438 (W.D.Ky. 1994). The Frosts urge the Court to apply the distinction made in Wiseman v. Alliant Hosps., Inc., 37 S.W.3d 709 (Ky. 2000), a medical negligence case, between harm, defined as “the existence of loss or detriment in fact of any kind to a person resulting from any cause[,]” and injury, defined as “the invasion of any legally protected interest of another.” Wiseman at 712. The Frosts contend that although Nancy was aware that she had been harmed, she was not aware that she had been injured in the legal sense until she received medical confirmation of the causal link between the accident and her medical condition via the September 16, 2009, letter from Dr. Pagani.

The Frosts concede that the discovery rule has never been applied to a personal injury action under the MVRA, but argue that such an extension would be in keeping with the trend of opinions from the Supreme Court of Kentucky, which have extended the rule to medical malpractice cases, Tomlinson v. Siehl, 459 S.W.2d 166 (Ky. 1970); injury from latent disease caused by exposure to asbestos, Louisville Trust Co. v. Johns-Manville Products Corp., 580 S.W.2d 497 (Ky. 1979); and legal malpractice cases, Conway v. Huff, 644 S.W.2d 333 (Ky. 1982). They further argue that extending the rule in this case would be equitable and would serve the MVRA’s purpose of reducing litigation by rewarding those claimants with latent injuries who wait to file suit until they have established a causal connection between an accident and their injuries.

Although the Frosts’ arguments are compelling, we decline to extend the discovery rule to tort actions under the MVRA because we have no statutory authority to do so. The statute of limitations set forth in KRS 304.39-230(6) makes no provision for the application of the discovery rule, unlike section (1), which expressly states that an action for reparation benefits “may be commenced not later than two (2) years after the injured person suffers the loss and either knows, or in the exercise of reasonable diligence should know, that the loss was caused by the accident[.]” Had the legislature intended the discovery rule to apply in the tort context, it could have included similar language in section (6).

Moreover, we are bound to follow the precedent established by our Supreme Court. As this Court noted in refusing to extend the discovery rule in the case of a student sexually assaulted by a church employee, “[t]he courts in this Commonwealth have been reluctant to extend the discovery rule and have applied it narrowly . . . . To extend that rule to cover the facts of this case would be beyond that allowed by Kentucky courts to this date.” Roman Catholic Diocese of Covington v. Secter, 966 S.W.2d 286, 289 (Ky. App. 1998). As this Court further observed in the same opinion, “we will follow established precedent and not make new policy.” Id. at 289 (citing Louisville Trust Co., at 499 (“The Court of Appeals had no alternative but to decide the case as it did.”)).

As to Glen’s loss of consortium claim, it is also time-barred under the one-year limitations period of KRS 413.140(a) because it would have accrued simultaneously with Nancy’s claim. See Tomlinson, 459 S.W.2d at 168.

For the foregoing reasons, we affirm the trial court’s order dismissing the Frosts’ complaint and granting summary judgment to Dickerson.

ALL CONCUR.

199. PROBATE. WILLS TRUSTS. NO CONTEST CLAUSE EXAMINED,ETC.
COMMONWEALTH BANK & TRUST COMPANY, ADMIN. WITH THE, ET AL.
VS.
YOUNG (MARGARET W.), ET AL.
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
MOORE (CONCURS) AND NICKELL (CONCURS)
2010-CA-000593-MR
TO BE PUBLISHED
JEFFERSON

THOMPSON, JUDGE: Commonwealth Bank & Trust Company, Administrator With The Will Annexed of the Estate of William F. Steineker and the Steineker estate beneficiaries, C. Authur Steineker, Helen Jean Steineker, Alfred William Steineker, III, and Catherine Anita Wimbish (collectively referred to as Commonwealth), appeal a Jefferson Circuit Court order declaring that Margaret W. Young, William Welch, and Candace Welch (the children), did not violate a no-contest clause of a trust document executed by their mother, Virginia C. Steineker. The issues are: (1) whether the order is final and appealable; (2) whether Commonwealth has standing; and (3) whether the children violated the trust document’s no-contest clause and, therefore, forfeited their beneficial interest in the trusts. Because multiple parties are involved, it is helpful to establish their respective positions.

201. CRIMINAL LAW
GEORGE PHILLIPS
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFRIMING IN PART AND VACATING IN PART
LAMBERT (PRESIDING JUDGE)
TAYLOR (CONCURS) AND THOMPSON (CONCURS)
2010-CA-000969-MR
TO BE PUBLISHED
BARREN

LAMBERT, JUDGE: After entering a conditional guilty plea, George Phillips appeals from the Barren Circuit Court’s denial of his motion to dismiss the charges pending against him for failure to comply with sex offender registration and persistent felony offender in the first degree. After careful review, we affirm the trial court’s order denying Phillips’ motion to dismiss the charges and vacate the trial court’s imposition of court costs and a fine.

213. FAMILY LAW. TERMINATING PARENTAL RIGHTS. ANDERS.
C. (A.)
VS.
CABINET FOR HEALTH AND FAMILY SERVICES , ET AL.
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
CAPERTON (CONCURS) AND VANMETER (CONCURS)
2011-CA-000504-ME
TO BE PUBLISHED
KENTON

ACREE, JUDGE: This is an appeal from the Kenton Family Court’s January 11, 2011 order terminating the parental rights of appellant, A.C., with regard to her minor son, M.W.C. In the course of our review, we are called upon to determine whether it is proper to extend the briefing procedures of Anders v. State of California, 386 U.S. 738, 87 S.Ct.1396, 18 L.Ed.2d 493 (1967), to appeals from orders terminating parental rights and, if so, whether the appeal before us is, in fact, wholly frivolous. We answer both questions affirmatively and affirm the family court’s judgment.

214
P. (J.)
VS.
B. (S. B.), ET AL.
OPINION VACATING AND REMANDING
COMBS (PRESIDING JUDGE)
KELLER (CONCURS) AND STUMBO (CONCURS)
2011-CA-000516-ME
TO BE PUBLISHED
PULASKI

COMBS, JUDGE: J.P. appeals an order of the Pulaski Circuit Court denying his petition to establish paternity, custody, visitation, and child support. After our review, we vacate and remand.

First, J.P. has demonstrated a real and substantial interest in the subject matter. Although S.B.B. characterized their relationship as “casual,” she testified at the hearing that they engaged in sexual intercourse one or two times per week for a number of years, including more than the one year preceding the birth of her child. Furthermore, she admitted that she did not use birth control during her encounters with J.P. Since she was also sexually active with her husband, either man could have fathered her child. J.P. presented other evidence as well, but S.B.B.’s admissions are sufficient to provide a reasonable basis of J.P.’s potential paternity.

S.B.B. seeks to distinguish this case from Bushelman because J.P. has not undergone DNA testing in order to determine paternity. (In Bushelman, the mother had consented to the DNA test.) J.P. has not had the opportunity but did ask the court to grant him that opportunity. In Bushelman, the Supreme Court encouraged the use of DNA testing to establish paternity:

We see no justification for keeping the traditional presumption of paternity locked in the science of centuries past. . . . DNA testing now serves as an appropriate form of evidence, not to avoid the traditional presumption of paternity, but to rebut it.

Id. at 861. DNA testing is clearly appropriate in this case.
Pursuant to the more recent authority set forth in Bushelman, we vacate the

order of the Pulaski Circuit Court and remand for additional proceedings. ALL CONCUR.

225. WORKERS COMPENSATION
HARDIN MEMORIAL HOSPITAL
VS.
HORNBACK (PATRICIA), ET AL.
OPINION REVERSING AND REMANDING
THOMPSON (PRESIDING JUDGE)
CAPERTON (CONCURS) AND LAMBERT (CONCURS)
2011-CA-001707-WC
TO BE PUBLISHED
WORKERS' COMP

THOMPSON, JUDGE: Hardin Memorial Hospital appeals from an opinion and order of the Workers’ Compensation Board affirming the ALJ’s award of permanent total disability benefits to Patricia Hornback and an enhanced benefit.

Pursuant to KRS 342.165(1). Hardin does not contest the award of permanent total disability but argues that the ALJ’s finding that Hornback’s injuries were caused by Hardin’s intentional failure to comply with safety laws was not supported by substantial evidence. After a review of the record, we are compelled to agree and reverse.

206. TORTS. DAMAGES (ZERO PAIN AND SUFFERING VERDICT) EVIDENCE. SUDDEN EMERGENCY DOCTRINE AND CHALLENGE OF JUROR.
ADAMS (PAMELA), ET AL.
VS.
MILLER (RANDALL), ET AL.
OPINION AFFIRMING
CAPERTON (PRESIDING JUDGE)
KELLER (CONCURS IN RESULT ONLY) AND LAMBERT (CONCURS)
2010-CA-001884-MR
NOT TO BE PUBLISHED
CAMPBELL

CAPERTON, JUDGE: Pamela and Thomas Adams appeal from the denial of their motion for a new trial following a jury verdict which found Randall Miller liable for the motor vehicle accident at issue on November 12, 2007. Said verdict did not award the full amount of damages sought and did not award any damages for pain and suffering. The Adamses argue that the jury verdict is not supported by the evidence, that the jury was erroneously instructed on the doctrine of sudden emergency, and that a juror should have been excused for cause. After a thorough review of the record, the parties’ arguments, and the applicable law, we do not find reversible error and, accordingly, affirm the jury verdict in question.

After hearing the evidence, the jury found Miller at fault and awarded Adams $200.00 (of $220.50) in lost wages; $9,800.00 (of $16,305.60) for past medical expenses; and $0 for pain and suffering. Adams moved the trial court for a new trial under Kentucky Rules of Civil Procedure (CR) 59.01(d). The trial court denied the motion. In so doing, the trial court noted that the jury verdict was supported by the evidence since Adams told the officer at the scene of the accident that she was fine and declined ambulance service. The court noted that at the emergency room, Adams complained of pain in her neck and back and received medication. However, when she visited a family physician after the chiropractor visits, the record does not reflect neck pain but instead numbness and tingling in her arms. The evidence also showed that Adams had been treated for a sciatic nerve issue prior to the accident but had not received treatment for it since 2004.

On appeal, the parties present three arguments which, for the sake of clarity,3 we have concisely recharacterized as three issues, namely: (1) whether the jury’s award of zero dollars for pain and suffering and less than the amount sought at trial for lost wages and past medical expenses requires a new trial; (2) whether the court erred in giving the jury an instruction on the sudden emergency doctrine;

and (3) whether the court erred in not excusing for cause Juror #172. With this in mind we now turn to our applicable jurisprudence.

At the outset we note that our review of a trial court’s ruling on a motion for a new trial under CR 59.01 is limited to whether the denial of the motion was clearly erroneous. Miller v. Swift, 42 S.W.3d 599, 601 (Ky. 2001).

In Miller the Kentucky Supreme Court reiterated that “if the jury's verdict of zero damages for pain and suffering is supported by evidence, the trial court was not clearly erroneous in denying Miller's motion for a new trial.” Id. Moreover, “a CR 59.01 ruling [is described] as ‘a discretionary function assigned to the trial judge who has heard the witnesses firsthand and observed and viewed their demeanor and who has observed the jury throughout the trial.’” Id. quoting Davis v. Graviss, Ky., 672 S.W.2d 928 (1984)(Davis was overruled on other grounds by Sand Hill Energy, Inc. v. Ford Motor Co., Ky., 83 S.W.3d 483, 493–95 (2002). Sand Hill was later vacated by Ford Motor Co. v. Estate of Smith, 538 U.S. 1028, 123 S. Ct. 2072, 155 L. Ed. 2d 1056 (2003)). Accordingly, we now review the issues presented by the parties in light of this standard.

First, we must address whether the jury’s award of zero dollars for pain and suffering and less than the amount sought at trial for lost wages and past medical expenses requires a new trial. As noted in Miller, supra, “Whether the award represents ‘excessive or inadequate damages appearing to have been given under the influence of passion or prejudice or in disregard of the evidence or the instructions of the court,’ CR 59.01(d), is a question dependent on the nature of the underlying evidence.” Id. at 602 (internal citation omitted). Moreover, the fixing and assessment of damages is exclusively a matter for the jury. DeBuyser v. Walden, 255 S.W.2d 616 (Ky. 1953). Determining whether a jury's award of damages meets this standard is a discretionary function assigned to the trial judge, who heard the witnesses firsthand, viewed their demeanor, and observed the jury throughout the trial. Miller at 601.

An award of zero dollars for pain and suffering is not automatically inadequate as a matter of law merely because it was accompanied by awards for medical expenses and lost wages. Miller at 602. Instead, the trial court must assess whether the award was inadequate, which requires evaluation of the evidence submitted at trial. Id. We must also bear in mind that a jury is not required to believe a plaintiff or her doctors. Bledsaw v. Dennis, 197 S.W.3d 115, 118 (Ky. App. 2006).

In the case sub judice, the trial court undertook an assessment of the evidence presented by both parties and concluded that there was countervailing evidence concerning Adams’s pain and whether it was attributable to the car accident given the chiropractic treatments, the timing of her physician visits, her past medical history, and the length of time between physician visits. Thus, the trial court determined that the jury’s verdict of zero dollars for pain and suffering was supported by the evidence. We agree with the trial court that in light of Miller, supra, the jury verdict was supported by the evidence and does not appear to have been rendered under the influence of passion or prejudice or in disregard of the evidence or the instructions of the court. Accordingly, the award of zero dollars was not inadequate and the denial of the motion for a new trial was not clearly erroneous.

Similarly, we agree with the trial court that the jury was not required to award the full amount of damages sought for past medical expenses or lost wages. The jury instructions stated:

If you find for the Plaintiff, what sums of money do you find from the evidence will fairly and reasonably compensate the Plaintiff, Pamela Adams, for such of the following items of damage as she may have sustained as a direct result of the accident?

(c) Necessary and reasonable expenses for hospital and medical services she incurred in the past, not to exceed $16,305.60?
(d) Necessary and reasonable expenses for hospital and medical services she is reasonably certain to incur in the future, not to exceed $50,000?

(e) Loss of wages and income, not to exceed $220.20?
By the terms of the instructions, the jury was to assess the evidence presented and compensate Adams fairly and reasonably, not to exceed the stated full amount of damages sought. As the trial court noted, the jury could have considered the fact that Adams did not see another physician after the week of her accident until seven months later. Thus, the jury could have determined that some of the medical treatment expenses were not related to the accident and correspondingly awarded less than the full amount sought for past medical expenses and zero for future medical expenses. Likewise, the jury could have considered testimony concerning the number of hours worked by Adams and her scheduled time off in awarding her less than the full amount sought for lost wages. Thus, we agree with the trial court that the jury verdict was supported by the evidence and does not appear to have been rendered under the influence of passion or prejudice or in disregard of the evidence or the instructions of the court. Accordingly, the award for less than the full amount of the damages sought was not inadequate and the denial of the motion for a new trial was not clearly erroneous.

We now turn to the second issue presented, namely: whether or not the court erred in giving the jury an instruction on the sudden emergency doctrine.

The sudden emergency doctrine relates only to the question of whether a duty was breached and has no effect on the means by which damages are allocated. Thus, we believe any error to be harmless because the jury found Miller to be liable and it is only the amount of damages with which Adams takes issue. See Henson v. Klein, 319 S.W.3d 413, 422 (Ky. 2010), and City of Louisville v. Maresz, 835 S.W.2d 889, 894 (Ky.App. 1992). Accordingly, the trial court did not err in denying Adams’s motion for a new trial based on this alleged error.

We now address the third and last issue of whether the court erred in not excusing for cause Juror #172. Adams argues that Juror #172 should have been excused for cause since she clearly expressed her opinion and bias about awarding monetary damages for pain and suffering. At the bench conference, Juror #172 indicated that she thought she could be fair and, thus, Adams argues, was unsuccessfully rehabilitated. Adams had to use a peremptory challenge to excuse Juror #172 after the trial court overruled her challenge for cause. Adams argues that there were not enough peremptory challenges to strike all the jurors who had expressed opinions indicating inability to award damages for persons injured, like Adams, in an auto accident; however, Adams does not specify which additional jurors would have been challenged. Adams also argues that Miller used all of his peremptory challenges to remove all prospective jurors who had personal injury claims or upon prospective jurors who had a good result with a chiropractor, leaving Adams with a jury that felt there were too many lawsuits and that pain and suffering cannot be equated with an award of monetary damages. Thus, Adams argues that she was prejudiced by having to use a peremptory challenge on Juror #172.

We first note that the excusal of jurors for cause is a matter within the sound discretion of the trial court. Thompson v. Commonwealth, 147 S.W.3d 22, 51 (Ky. 2004). “The test for determining whether a juror should be stricken for cause is ‘whether, after having heard all of the evidence, the prospective juror can conform his views to the requirements of the law and render a fair and impartial verdict.’” Id. quoting Mabe v. Commonwealth, Ky., 884 S.W.2d 668, 671 (1994). The decision to exclude a juror for cause is based on the totality of the circumstances, not on a response to any one question. Fugett v. Commonwealth, 250 S.W.3d 604, 613 (Ky. 2008). After a review of voir dire concerning Juror #172, we believe that the trial court did not abuse its discretion in not excusing Juror #172. In light of the totality of the circumstances, Juror #172 indicated that she could, after hearing all the evidence, conform her views to the requirements of the law and render a fair and impartial verdict.4 Accordingly, the trial court did not abuse its discretion in failing to excuse Juror #172 for cause.

In light of the aforementioned, we affirm the trial court’s denial of Adams’s motion for a new trial and the corresponding jury verdict.

Feb. 17, 2012 COA Minutes -- Nos. 169- 194 (26 decisions; 2 published)

Michael Stevens — 2012-04-08T19:52:51-04:00

Feb. 17, 2012 COA Minutes -- Nos. 169- 194 (26 decisions; 2 published)

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PUBLISHED DECISIONS OF COA:

177. ADMINISTRATIVE/REGULATORY LAW: MINING
LAUREL MOUNTAIN RESOURCES, LLC, ET AL.
VS.
ENERGY AND ENVIRONMENT CABINET, ET AL.
OPINION REVERSING AND REMANDING
LAMBERT (PRESIDING JUDGE)
TAYLOR (CONCURS) AND CLAYTON (CONCURS)
2010-CA-001860-MR
TO BE PUBLISHED
FRANKLIN

LAMBERT, SENIOR JUDGE: This appeal arises from an order of the Secretary of the Commonwealth of Kentucky, Energy and Environment Cabinet (“the Cabinet”) denying a “Lands Unsuitable for Mining” petition filed by Beverly May but nonetheless imposing numerous restrictive conditions on all future surface coal mining in the petition area. The order was affirmed by the Franklin Circuit Court. Appellants Laurel Mountain Resources, LLC (as successor in interest to Miller Bros. Coal, LLC) and Gene D. Campbell2 challenge the determination on a variety of grounds. After careful consideration of the record and the parties’ arguments, we reverse and remand for further proceedings consistent with this opinion.

194. APPEALS. TIMELY FILING AND SHOW CAUSE.
WILLIS (AARON LAMONT)
VS.
WILLIS (DARLENE DENISE)
OPINION AND ORDER DISMISSING
KELLER (PRESIDING JUDGE)
COMBS (CONCURS) AND VANMETER (CONCURS)
2011-CA-001519-MR
TO BE PUBLISHED
BOYD

KELLER, JUDGE: On August 26, 2011, this Court gave the appellant twenty days to show cause why this appeal should not be dismissed for failing to timely file the notice of appeal. The appellant has filed a response to the show cause order.

We sympathize with the appellant; however, this appeal must be dismissed as untimely. It is clear that the Kentucky Supreme Court has recognized that incarcerated appellants should be entitled to some “saving” mechanism that provides some leniency in applying the strict filing requirements for notices of appeal. The mechanism in RCr 12.04(5) only applies to inmates because they do not have access to any means of

transmitting documents to the courts other than through the prison internal mail system. The Kentucky Supreme Court could have extended the prison mailbox rule to all documents filed by prison inmates based on the underlying rationale for the rule, but it chose not to do so. We are constrained to abide by that choice. See, e.g., Rules of the Supreme Court 1.030(8)(a) (“The Court of Appeals is bound by and shall follow applicable precedents established in the opinions of the Supreme Court and its predecessor court.”). Compare with State v. Parker, 936 P.2d 1118, 1119 (Utah App. 1997)(declining to adopt prison mailbox rule for lack of authority because adoption of rule of procedure should be left to the state supreme court which has the authority for drafting the rules of appellate procedure).

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173. APPEALS. FINALITY. PENDING MOTION TO AMEND COMPLAINT.
CROSS (JASON H.), ET AL.
VS.
COX (LELAND E.), ET AL.
OPINION DISMISSING AND REMANDING
MOORE (PRESIDING JUDGE)
STUMBO (CONCURS) AND WINE (CONCURS)
2010-CA-001511-MR
NOT TO BE PUBLISHED
BARREN

This appeal arises out of two summary judgments granted to Barney Jones, Sheriff of Barren County, in both his individual and official capacities, and Deputy Sheriff Leland Cox, in his individual capacity. There, however, remains a pending motion to amend the complaint before the circuit court. Because all issues in the case have not been decided, the case is not final. Accordingly, this Court lacks jurisdiction to decide the matter, and it is hereby DISMISSED and REMANDED for a ruling on the pending motion and proceedings not inconsistent with this opinion.

176. TORTS. PREMISES LIABILITY. IMPEACHMENT; SUBSEQUENT REMEDIAL MEASURES.
SINKHORN (CARL)
VS.
THE OXFORD APARTMENT CLUB RESORT, LLC
OPINION AFFIRMING
CAPERTON (PRESIDING JUDGE)
COMBS (CONCURS) AND THOMPSON (CONCURS)
2010-CA-001826-MR
NOT TO BE PUBLISHED
JEFFERSON

We now turn to Sinkhorn’s first and only remaining argument, that the trial court abused its discretion when it failed to allow Sinkhorn to introduce evidence of impeachment under KRE 407, and such was not harmless error.

Our standard of review of evidentiary rulings is for abuse of discretion. “The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000), citing

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Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Further, no evidentiary error shall be grounds for reversal unless it affects the substantial rights of the parties. CR 61.01. We now focus our analysis on KRE 407.

KRE 407 states:

When, after an event, measures are taken which, if taken previously, would have made an injury or harm allegedly caused by the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

KRE 407.
By the very language of the rule, evidence of subsequent remedial repairs for

impeachment purposes is permitted in limited circumstances. KRE 407. See also Noe v. O'Neil, 314 Ky. 641, 646, 236 S.W.2d 893, 896 (1951). Also, allowing evidence of remedial measures is contrary to the public policy underlying the disallowance of such evidence. The rationale behind the public policy is that by disallowing evidence of remedial measures at trial, parties will perform remediation without concern for adverse consequences if a court action is the ultimate result. Commonwealth, Cabinet for Health and Family Services v. Chauvin, 316 S.W.3d 279, 303 (Ky. 2010) (citing to Robert G. Lawson, Modifying the Kentucky Rules of Evidence—A Separation of Powers Issue, 88 Ky. L.J. 581– 585 (2000).

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Care must be taken so that the general rule barring admission of subsequent remedial measures is not swallowed by the exception of permitting evidence to be used for impeachment and, thereby, preventing the exception from “being used as a subterfuge to prove negligence.” Robert G. Lawson, The Kentucky Evidence Law Handbook (4th ed.2003) § 2.45[4][b]. As noted by Professor Lawson, Petree v. Victor Fluid Power, Inc., 887 F.2d 34 (3d Cir. 1989), provides a “superb analysis of the impeachment exception and a fairly full review of federal cases.” Lawson at § 2.45[4][b].

We find particularly elucidating the Petree court’s citation in Probus v. K- Mart, Inc., 794 F.2d 1207, 1209 (7th Cir.1986), which noted, “it was insufficient that evidence of the subsequent remedial measure would impeach defendants' testimony since, if that were the sole requirement, the exception would be elevated to the rule.” Petree at 39. In light of such learned jurisprudence, we conclude that the trial court did not abuse its discretion in not allowing Sinkhorn to introduce evidence of subsequent remedial measures offered in the guise of impeachment.

Our review of the photographs introduced into evidence and published to the jury certainly demonstrates the confusion surrounding the color of the staircase. This lends credence to our jurisprudence that this Court is not a fact-finder and it is for the jury to determine the veracity of the testimony presented. See Cole v. Gilvin, 59 S.W.3d 468, 473 (Ky.App. 2001) (it has long been the province of the fact-finder to determine the credibility of witnesses and the weight to be given the evidence).

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The jury was presented with the photographs, the testimony of Lemons and Hessig, and the redirect of each of them explaining the possible variations in coloring and the timing of the photographs. Moreover, based on the record, we disagree with Sinkhorn that Lemons’s testimony opened the door to impeachment testimony concerning the color of the staircase and the timing of the photographs.

Specifically, counsel for Sinkhorn complains of the answers given by Lemons to his questions of her concerning change in coloration of the steps. The line of questioning appears to be designed to elicit testimony that remedial measures were performed subsequent to the accident. In light of the trial court’s ruling that evidence of remedial measures was not to be introduced, counsel can hardly expect remedial measures to be admitted into evidence when he asks questions designed to elicit testimony that remedial measures were performed, and then uses the less than satisfactory answers thereto as grounds to introduce the very evidence the trial court has ruled inadmissible. Finding no error, we affirm.

Based on the aforementioned, we affirm the judgment entered by the Jefferson Circuit Court.

ALL CONCUR.

CAPERTON, JUDGE: The appellant, Carl Sinkhorn, appeals from the Jefferson Circuit Court judgment entered on September 7, 2010, in favor of the Appellees (hereinafter “Oxford”) and the court’s ruling to exclude evidence at trial of Oxford’s subsequent remedial measures when said evidence was offered to impeach the testimony of Oxford’s witness. After a thorough review of the parties’ arguments, the record, and the applicable law, we affirm.

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KRE 407 states:

KRE 407.
By the very language of the rule, evidence of subsequent remedial repairs for

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Based on the aforementioned, we affirm the judgment entered by the Jefferson Circuit Court.

ALL CONCUR.

180. SANCTIONS. RULE 11.
DETERS (ERIC), ET AL.
VS.
KENTON COUNTY
OPINION AND ORDER DISMISSING
NICKELL (PRESIDING JUDGE)
CLAYTON (CONCURS) AND MOORE (CONCURS)
2010-CA-002317-MR
NOT TO BE PUBLISHED
KENTON

Feb. 10, 2012 COA Minutes -- Nos. 143-168 (26 decisions; 6 published)

Michael Stevens — 2012-02-16T19:23:02-05:00

Feb. 10, 2012 COA Minutes -- Nos. 143-168 (26 decisions; 6 published)

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PUBLISHED DECISIONS OF COA:

147. CRIMINAL LAW
BLAKE (JEFFREY DALE)
VS.
COMMONWEALTH OF KENTUCKY
OPINION REVERSING AND REMANDING
TAYLOR (PRESIDING JUDGE)
LAMBERT (CONCURS) AND THOMPSON (CONCURS)
2010-CA-000987-MR
TO BE PUBLISHED
GRAVES

TAYLOR, CHIEF JUDGE: Jeffrey Dale Blake brings this appeal from an April 20, 2010, judgment of the Graves Circuit Court upon a conditional plea of guilty to sundry offenses (including receiving stolen property over $300) and a sentence of three-years’ imprisonment which was probated for a term of five years. We reverse and remand.

151. CRIMINAL LAW
WILSON (RICKY LEE)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
MOORE (PRESIDING JUDGE)
NICKELL (CONCURS) AND THOMPSON (CONCURS)
2010-CA-001399-MR
TO BE PUBLISHED
FAYETTE

MOORE, JUDGE: Ricky Lee Wilson appeals the Fayette Circuit Court’s judgment convicting him of first-degree Trafficking in a Controlled Substance; Possession of Drug Paraphernalia; third-degree Trafficking in a Controlled Substance; Possession of Marijuana; Alcohol Intoxication in a Public Place; and of being a second-degree persistent felony offender (PFO-2nd). After a careful review of the record, we affirm.

155. REAL PROPERTY. MORTGAGES. HOME EQUITY ASSET TRUST
BERGHAUS (RACHEL L.)
VS.
US BANK
OPINION AFFIRMING IN PART, VACATING IN PART AND REMANDING
COMBS (PRESIDING JUDGE)
NICKELL (CONCURS) AND LAMBERT (CONCURS)
2010-CA-002050-MR
TO BE PUBLISHED
CAMPBELL

COMBS, JUDGE: The Campbell Circuit Court dismissed the counterclaim of Rachel L. Berghaus in litigation initiated by U.S. Bank. The court also entered a judgment and order of sale in favor of U.S. Bank, trustee for the registered holders of Home Equity Asset Trust 2004-2, Home Equity Pass-Through Certificates, Series 2004-2. Berghaus now appeals. After our review, we affirm in part, vacate in part and remand.

156. CRIMINAL LAW. EXPUNGEMENT.
COMMONWEALTH OF KENTUCKY
VS.
JONES (CHARLOTTE M.)
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
KELLER (CONCURS) AND STUMBO (CONCURS)
2010-CA-002324-MR
TO BE PUBLISHED
JEFFERSON

VANMETER, JUDGE: The Commonwealth of Kentucky appeals from the December 1, 2010, order of the Jefferson Circuit Court granting Charlotte Jones’s motion to expunge the record of her voided felony conviction of illegal possession of a controlled substance in the first degree, schedule II - cocaine. For the following reasons, we affirm.

159. CIVIL PROCEDURE. CERTIFYING CLASS ACTION.
MERCK & COMPANY, INC.
VS.
RATLIFF (JAMES), ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED
OPINION REVERSING AND REMANDING
WINE (PRESIDING JUDGE)
ACREE (CONCURS) AND CLAYTON (CONCURS)
2011-CA-000234-MR
TO BE PUBLISHED
PIKE

WINE, JUDGE: Merck & Company, Inc., n/k/a Merck Sharp & Dohme Corporation (Merck) appeals from an order of the Pike Circuit Court certifying a class for a class action lawsuit initiated by James Ratliff, on behalf of himself and others similarly situated.2 In the underlying lawsuit, Ratliff alleges that Merck concealed the dangerous side effects of the prescription medication, rofecoxib, marketed under the name “Vioxx.” Merck argues on appeal that class certification was inappropriate under CR 23 and seeks a reversal of the class-certification order. Upon a thorough review of the record and applicable caselaw, we reverse the order of the Pike Circuit Court.

160. TORTS. EVIDENCE RES IPSA LOQUITOR.
RYAN (CANDIDA)
VS.
FAST LANE, INC.
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
COMBS (CONCURS) AND STUMBO (CONCURS)
2011-CA-000300-MR
TO BE PUBLISHED
CARTER

KELLER, JUDGE: Candida Ryan (Ryan) appeals from an order of the Carter Circuit Court granting summary judgment in favor of Fast Lane, Inc. (Fast Lane). For the following reasons, we affirm. On February 21, 2007, Ryan filed suit against Fast Lane in the Carter Circuit Court alleging negligence.1 Specifically, Ryan claimed that she was injured while pumping gas at Fast Lane when gas entered her eyes, and that such injury was due to a latent defect in the gasoline pump.

On appeal, Ryan argues that the trial court erred in granting summary

judgment because it did not apply the res ipsa loquitur doctrine. We disagree. As set forth in Sadr v. Hager Beauty School, Inc., 723 S.W.2d 886, 887 (Ky. App. 1987):

[Res ipsa loquitur] is an evidentiary doctrine which allows a jury to infer negligence on the part of the defendant. If the inference is forceful enough it can create a rebuttable presumption of negligence, possibly resulting in a directed verdict.

Reliance upon the doctrine of res ipsa loquitur is predicated upon a showing that (1) the defendant had full control of the instrumentality which caused the injury; (2) the accident could not have happened if those having control had not been negligent; and (3) the plaintiff's injury resulted from the accident. The doctrine does not apply if it is shown that the injury may have been due to some voluntary action on the plaintiff’s part.

(Citations omitted).
As to the first element, we note that Ryan was operating the pump at the time of her injury. Therefore, we cannot say that the pump was under the exclusive control of Fast Lane. Thus, the trial court did not err in concluding that Ryan was unable to prove the first element.

As to the second element, we agree with the trial court that there was no evidence that Fast Lane was negligent. Ryan alleged that Fast Lane breached a duty “to keep the premises and pumps in a reasonably safe condition and to warn [Ryan] of any hidden and latent defects and dangers[.]” However, Ryan concedes that she is unable to submit any evidence that the pump was defective. In fact, Chapman and Holbrook testified that they inspected the pump; no changes were made because the nozzle appeared to be in proper working order; and no one else experienced problems with the pump after Ryan used it.

Further, Sunderhaus testified that the lack of shut-off on a nozzle is expected to occur from time to time. Additionally, he testified that, even if there was a malfunction with the nozzle in this case, he did not think there was any way that Fast Lane could have anticipated the malfunction. Consequently, without more than conclusory allegations and subjective beliefs, Ryan’s claim that the accident would not have happened but for Fast Lane’s negligence cannot survive summary judgment. Humana of Kentucky, Inc. v. Seitz, 796 S.W.2d 1, 3 (Ky. 1990). Accordingly, we conclude the trial court correctly determined that res ipsa loquitur does not apply to the instant case.

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WORKERS COMPENSATION LAW UPDATES, I RECOMMEND YOU GO TO THE COMP ED WEB SITE AT http://www.comped.net/.
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159. CIVIL PROCEDURE. CERTIFYING CLASS ACTION.
MERCK & COMPANY, INC.
VS.
RATLIFF (JAMES), ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED
SEE ABOVE PUBLISHED DECISION.

160. TORTS. EVIDENCE RES IPSA LOQUITOR.
RYAN (CANDIDA)
VS.
FAST LANE, INC.

SEE ABOVE PUBLISHED DECISIONS.

145. MEDICAL NEGLIGENCE.
PARTEE (KATHY D.)
VS.
GAPP (GREGORY)
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
KELLER (CONCURS) AND WINE (CONCURS)
2010-CA-000129-MR
NOT TO BE PUBLISHED
CHRISTIAN

LAMBERT, SENIOR JUDGE: Kathy D. Partee appeals from a judgment of the Christian Circuit Court entered on a jury verdict adverse to her claims of medical negligence against Gregory Gapp, M.D. For reasons that follow, we affirm.

Appellant subsequently filed the underlying medical negligence suit against Appellee on the grounds that he had deviated from the applicable standard of care and skill by negligently administering Methotrexate without taking further steps or allowing additional time to confirm that Appellant’s pregnancy was actually ectopic. After a three-day trial, a jury determined that Appellee had not breached the applicable standard of care and found in his favor. This appeal followed.

On appeal, Appellant raises a number of grounds for reversal and a new trial – none of which was preserved below. While acknowledging this lack of preservation, Appellant nonetheless asks us to review her claims under the “palpable error” standard set forth in Kentucky Rules of Civil Procedure (CR) 61.02. That rule provides that “[a] palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.” An error is palpable only when it is “easily perceptible, plain, obvious and readily noticeable.” Burns v. Level, 957 S.W.2d 218, 222 (Ky. 1997). “Fundamentally, a palpable error determination turns on whether the court believes there is a ‘substantial possibility’ that the result would

have been different without the error.” Hibdon v. Hibdon, 247 S.W.3d 915, 918 (Ky. App. 2007), quoting Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006). Even a cursory examination of Appellant’s claims reveals that they lack merit under these standards, but we nonetheless address them individually.

157. APPEALS.
STULL (VERNON), ET AL.
VS.
WILLIAMS (JOHN) JR., ET AL.
OPINION AND ORDER DISMISSING
TAYLOR (PRESIDING JUDGE)
COMBS (CONCURS) AND NICKELL (CONCURS)
2011-CA-000003-MR
NOT TO BE PUBLISHED
MONTGOMERY

TAYLOR, CHIEF JUDGE: Vernon Stull and Katherine Stull bring this appeal from November 8, 2010, November 22, 2010, and December 20, 2010, orders of the Montgomery Circuit Court. Having reviewed the record, we conclude that the above-styled appeal is untimely taken, thus depriving this Court of jurisdiction.

Feb. 3, 2012 COA Minutes -- Nos. 116-142 (27 decisions; 4 published)

Michael Stevens — 2012-02-16T18:59:47-05:00

Feb. 3, 2012 COA Minutes -- Nos. 116-142 (27 decisions; 4 published)

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PUBLISHED DECISIONS OF COA:

117. FAMILY LAW.
COPAS (KATHY JOAN)
VS.
COPAS (RICHARD DALE)
OPINION AFFIRMING IN PART, REVERSING IN PART AND REMANDING
ACREE (PRESIDING JUDGE)
MOORE (CONCURS) AND NICKELL (CONCURS)
2009-CA-000685-MR
2009-CA-000720-MR
TO BE PUBLISHED
SHELBY

ACREE, JUDGE: This opinion addresses the combined appeal and cross-appeal from orders of the Shelby Family Court modifying the division of Appellee/Cross- Appellant Richard Copas’s military retired pay between Richard and his former spouse, Appellant/Cross-Appellee Kathy Copas. There are three issues before us.

First, did the family court abuse its discretion in utilizing Kentucky Rules of Civil Procedure (CR) 60.02(f) to reopen the order dividing the parties’ marital property? Second, did the family court abuse its discretion in modifying the language in a previous order concerning the division of Richard’s military retired pay? And third, did the family court abuse its discretion in granting Kathy’s CR 59.05 motion by adding language to the order which, in effect, designated Richard’s disability benefits as marital property and then dividing it between the parties? With regard to the first two questions, we find no abuse of discretion. However, we find the family court did abuse its discretion as to the last issue. Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

119. FAMILY LAW. EXPERTS (TESTIMONY OF SOCIAL WORKER)
BROSNAN (TIMOTHY M.)
VS.
BROSNAN (MARGARET)
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
CAPERTON (CONCURS) AND COMBS (CONCURS IN RESULT)
2010-CA-000229-MR
2010-CA-000272-MR
2010-CA-000849-MR
TO BE PUBLISHED
JEFFERSON

THOMPSON, JUDGE: Timothy M. Brosnan appeals and Margaret Brosnan (now Sargent) cross-appeals from a judgment of the Jefferson Family Court entered in their dissolution of marriage action dividing their marital property and debts and awarding maintenance to Margaret. Margaret also appeals from an order of the Jefferson Family Court denying her motion for attorney’s fees incurred on appeal.

he question presented is whether Lacock is qualified to express an opinion that Margaret suffers from PTSD. Lacock’s professional qualifications are that she has a master’s degree in social work and is licensed in Iowa as an independent social worker. Timothy argues that Lacock was not qualified to express a medical opinion regarding Margaret’s psychological symptoms or diagnosis. Based on established precedent, we agree.

124. FAMILY LAW
GASKILL (JULIE ANN)
VS.
ROBBINS (JON KEVIN)
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
DIXON (CONCURS) AND VANMETER (CONCURS)
2010-CA-001814-MR
TO BE PUBLISHED
WARREN

LAMBERT, JUDGE: Julie Ann Gaskill appeals from a Warren Family Court’s findings of fact, conclusions of law, and judgment with regard to the valuation and distribution of an oral surgery practice in dissolution proceedings. Finding no error in the trial court’s judgment, we affirm.

125. CRIMINAL LAW
MOFFITT (BRIAN M.)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
WINE (CONCURS) AND LAMBERT (CONCURS)
2010-CA-001822-MR
TO BE PUBLISHED
LIVINGSTON

ACREE, JUDGE: The question presented in this appeal is whether Kentucky’s Sex Offender Registration Act (“SORA” or the “Act”), codified at Kentucky Revised Statutes (KRS) 17.500 – 17.580, is unconstitutional as applied to Appellant, Brian Moffitt, on the grounds that it violates his procedural and substantive due process rights. Because we find Kentucky’s SORA constitutionally sound, we affirm the Livingston Circuit Court’s August 27, 2010 order denying Moffitt relief.

TORT REPORT FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

IF YOU WANT

WORKERS COMPENSATION LAW UPDATES, I RECOMMEND YOU GO TO THE COMP ED WEB SITE AT http://www.comped.net/.
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133. SUMMARY JUDGEMENT REVERSED ON GENUINE ISSUES, CREDIBILITY
JOHNSON (VALERIE D.), ET AL.
VS.
BREWER (BETTY), ET AL.
OPINION REVERSING AND REMANDING
CLAYTON (PRESIDING JUDGE)
STUMBO (CONCURS) AND THOMPSON (CONCURS)
2010-CA-002096-MR
NOT TO BE PUBLISHED
SCOTT

CLAYTON, JUDGE: Michael H. Johnson and his guardian, Valerie D. Johnson, bring this appeal from a Scott Circuit Court order granting summary judgment to Betty Brewer, Charles F. Brewer, Gregory Brewer, and Indiana Insurance Company (hereinafter “the Brewers”).

On appeal, the Johnsons argue that summary judgment was inappropriate because the Brewers had failed to show that there were no genuine issues of material fact regarding whether Charles Brewer had observed the applicable standard of care for a driver entering an intersection on a green light. Although it is undisputed that Michael Johnson ran the red light and that Charles Brewer was proceeding on a green light through the intersection, “[c]omparative negligence . . . calls for liability for any particular injury in direct proportion to fault.” Hilen v. Hays, 673 S.W.2d 713, 718 (Ky. 1984). “A driver approaching an intersection with the right-of-way has no absolute right to proceed so unconditional that she can ignore duties of reasonable lookout, sounding a horn when necessary, and avoiding collision when there is reasonable opportunity to do so.” Wittmer v. Jones, 864 S.W.2d 885, 888 (Ky. 1993). “A green light or ‘go’ signal, is not a command to go regardless of other persons or vehicles that may already be at the intersection but is a qualified permission to proceed carefully in the direction indicated.” Swartz v. Humphrey, 437 S.W.2d 750, 753 (Ky. 1969).

The Johnsons contend that police photographs of the intersection which were taken at the time of the accident and are in the record indicate otherwise. We agree that the photographs are not conclusive. Thus, a factual dispute exists regarding how much of the intersection is visible to traffic approaching from the west.

Next, the Johnsons argue that simply because the sole eyewitnesses who are able to testify about the accident deny that Charles did anything wrong is not dispositive, and that a jury should assess their credibility. It is well established that the credibility of a witness is a matter for the jury. Estep v. Commonwealth, 957 S.W.2d 191, 193 (Ky. 1997). “Where questions exist regarding the credibility of witnesses and the weight of evidence, such matters must await trial and not be determined on motion for summary judgment.” Amos v. Clubb, 268 S.W.3d 378, 382 (Ky. App. 2008). We agree that a jury should assess the credibility of Betty and Gregory Brewer’s testimony regarding the events immediately preceding the collision.

The Brewers argue that the unverified allegations in the complaint are of little significance as they are not admissions of fact but rather mere assertions of a claim. Nonetheless, on its face, the complaint may be admissible.

[Kentucky Rules of Evidence] KRE 801A(b) 1 allows the introduction as non-hearsay of an adverse party’s admissions, including admissions contained in superceded or abandoned pleadings, but only against the declaring party.” See Dalton v. Mullins, 293 S.W.2d 470 (Ky. 1956) (pre-Rules holding that Appellant’s abandoned pleading was admissible as competent evidence against Appellant).

Hyman & Armstrong, P.S.C. v. Gunderson, 279 S.W.3d 93, 119 (Ky. 2008). Because material issues of fact remain regarding Charles Brewer’s observance of the duty to maintain a reasonable lookout and maintain a safe speed, the credibility of the witnesses, and the topography of the intersection, summary judgment was not appropriate in this case.

The order granting summary judgment to the Brewers and Indiana Insurance Company is reversed, and the matter is remanded for further proceedings in accordance with this opinion.

137. TEACHER NEGLIGENCE. QUALIFIED OFFICIAL IMMUNITY APPLIED.
ADAMS (SHARON), ET AL.
VS.
DAWSON (MELANIE)
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
MOORE (CONCURS) AND WINE (CONCURS)
2011-CA-000537-MR
NOT TO BE PUBLISHED
CALLOWAY

STUMBO, JUDGE: Sharon Adams, individually and as next friend of Austin Herald appeals from an order granting summary judgment for Melanie Dawson. This is a personal injury case where Herald was injured while at school. Ms. Dawson was Herald’s teacher. Adams argues that summary judgment should nothave been granted. We find Ms. Dawson was protected by qualified official immunity; therefore, summary judgment was appropriate.

Michael Stevens — 2012-02-12T23:54:36-05:00

Jan. 27, 2012 COA Minutes -- Nos. 84-115 (32 decisions; 5 published)

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PUBLISHED DECISIONS OF COA:

91. BUSINESS LAW. LETTERS OF CREDIT. ATTORNEY FEES.
LOUISVILLE MALL ASSOCIATES, LP, ET AL.
VS.
WOOD CENTER PROPERTIES, LLC
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
ACREE (PRESIDING JUDGE)
STUMBO (CONCURS) AND LAMBERT (CONCURS)
2010-CA-000933-MR
2010-CA-001255-MR
TO BE PUBLISHED
OLDHAM

ACREE, JUDGE: Appellants, Robert B. Greene (Greene) and Louisville Mall Associates, LP, Manchester Mall Associates, LP, Corbin Mall Associates, LP, Sheperdsville Mall Associates, LP, and Fairlea Mall Associates, LP (collectively, the “Mall Appellants”)2 bring these consolidated appeals from a judgment and two post-judgment orders of the Oldham Circuit Court. Greene first appeals from the circuit court’s order granting appellee, Wood Center Properties (WCP), summary declaratory judgment claiming the circuit court erroneously interpreted the Letter of Credit at issue. We find no reversible error in the circuit court’s rulings respecting this issue. In the second appeal, Greene first contends the circuit court improperly denied his motion pursuant to Kentucky Rules of Civil Procedure (CR) 60.02. We find Greene’s CR 60.02 motion procedurally deficient and affirm the circuit court’s first post-judgment order. Greene next asserts the circuit court improperly granted WCP’s motion for attorney’s fees. We agree and reverse the circuit court’s second post-judgment order. Accordingly, we affirm in part and reverse in part, and remand for the entry of an order consistent with this opinion.

93. CRIMINAL LAW
RAINES (LARRY)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
DIXON (CONCURS) AND LAMBERT (CONCURS)
2010-CA-001059-MR
TO BE PUBLISHED
JESSAMINE

CLAYTON, JUDGE: Larry Raines appeals from a judgment of the Jessamine Circuit Court on his conditional guilty plea to seven counts of incest. For the following reasons, we affirm.

103. MEDICAL MALPRACTICE. CIVIL PROCEDURE (SUMMARY JUDGMENT, AFFIDAVITS)
ROGERS (JIMMY)
VS.
INTEGRITY HEALTHCARE SERVICES, INC.
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
CAPERTON (CONCURS) AND KELLER (CONCURS)
2010-CA-001876-MR
TO BE PUBLISHED
LINCOLN

LAMBERT, JUDGE: Jimmy Rogers appeals from the Lincoln Circuit Court’s grant of summary judgment in favor of Integrity Healthcare Services, Inc. (“Integrity”)1 as to Rogers’s medical malpractice claims against Integrity. After our review, we affirm.

Rogers first challenges the circuit court’s reliance upon Lipsteuer, supra, and Gilliam, supra, which held that an affidavit cannot be used to defeat a motion for summary judgment if it contradicts previous testimony provided by the non-moving party. Rogers admitted in his motion to set aside the summary judgment that his affidavit contradicted his previous interrogatory answers. However, he contends that the subject decisions are inapposite in this case and that summary judgment was, therefore, entered erroneously because they dealt with affidavits that contradicted deposition testimony – not interrogatory answers.

As correctly noted by Integrity, though, Rogers failed to raise this particular argument before the circuit court. Therefore, we consider it waived since “‘[a] new theory of error cannot be raised for the first time on appeal.’” Fischer v. Fischer, 348 S.W.3d 582, 588 (Ky. 2011), quoting Springer v. Commonwealth, 998 S.W.2d 439, 446 (Ky. 1999); see also Hutchings v. Louisville Trust Co., 276 S.W.2d 461, 466 (Ky. 1954) (“[I]t is the accepted rule that a question of law which is not presented to or passed upon by the trial court cannot be raised here for the first time.”). Moreover, this Court has explicitly recognized that a party “cannot submit a later affidavit contradicting his earlier sworn answers to interrogatories to defeat summary judgment.” Best v. West American Ins. Co., 270 S.W.3d 398, 403 n.6 (Ky. App. 2008) (Emphasis added). Thus, no “extraordinary error” occurred here that would merit relief in the absence of preservation. See Fischer, 348 S.W.3d at 589; CR 61.02. Accordingly, Rogers’s argument must be rejected.

“It is beyond dispute that causation is a necessary element of proof in any negligence case.” Baylis v. Lourdes Hosp., Inc., 805 S.W.2d 122, 124 (Ky. 1991). “[I]n most medical negligence cases, proof of causation requires the testimony of an expert witness because the nature of the inquiry is such that jurors are not competent to draw their own conclusions from the evidence without the aid of such expert testimony.” Id. (Footnote omitted); see also Andrew v. Begley, 203 S.W.3d 165, 170 (Ky. App. 2006).3 Thus, in order “[t]o survive a motion for summary judgment in a medical malpractice case in which a medical expert is required, the plaintiff must produce expert evidence or summary judgment is proper.” Andrew, 203 S.W.3d at 170.

Integrity asserts – correctly – that the subject affidavit fails to establish that either of the nurses was qualified as an expert to opine on medical causation and provides no evidence of their respective backgrounds, qualifications, or their knowledge of the subject medical history. Moreover, Rogers did not produce any reports or statements from the nurses summarizing or explaining their opinions and the bases for them. In light of these threshold failures, we cannot say that the circuit court erred in refusing to consider the affidavit and the opinions offered by the nurses therein as evidence of medical causation or in consequently entering summary judgment.4 Rogers had ample time to produce expert witnesses to support his cause of action and to sustain his burden of proof, but he failed to do so. Therefore, Integrity was entitled to summary judgment as a matter of law. See Blankenship, 302 S.W.3d at 673.

104. CRIMINAL LAW
SCHWEIKERT (TROY)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
TAYLOR (CONCURS) AND DIXON (CONCURS)
2010-CA-001936-MR
TO BE PUBLISHED
KENTON

LAMBERT, JUDGE: In this post-conviction action, Troy Schweikert, proceeding pro se, has appealed from the Kenton Circuit Court’s order denying his motion for Kentucky Rules of Criminal Procedure (RCr) 11.42 relief on grounds of ineffective assistance of trial counsel. Because we agree with the trial court that Schweikert’s claims were refuted by the record, we affirm.

113. CRIMINAL LAW.
KERR (DANIEL)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
CLAYTON (CONCURS) AND DIXON (CONCURS)
2011-CA-000351-MR
TO BE PUBLISHED
JEFFERSON

LAMBERT, JUDGE: Daniel A. Kerr has directly appealed from the judgment of the Jefferson Circuit Court convicting him of second-degree robbery and sentencing him to six-and-one-half years’ imprisonment pursuant to the jury’s verdict. Having carefully considered the record and the parties’ arguments in their briefs, we affirm.

On appeal, Kerr presents three arguments: 1) that the trial court made improper comments to the jury at the beginning of the trial; 2) that the robbery instruction denied him a unanimous verdict by including a theory of guilt not supported by the evidence; and 3) that the trial court improperly struck a potential juror for cause. We note that the first and second arguments are not preserved for appellate review.

Kerr’s first argument addresses explanatory comments the trial court made to the jury prior to the start of the trial. These comments came directly after the court swore in the jury and were meant to orient the jury about how the trial would proceed; in other words, a “roadmap” of the proceedings. Kerr contends that these comments invaded the jury’s exclusive right to judge the facts. Both Kerr and the Commonwealth in their respective briefs provided the historical background addressing this issue of law. In his reply brief, Kerr requested that this matter be decided as either a matter of constitution law under § 7 of the Kentucky Constitution or under common law.

After Kerr filed his reply brief, the Supreme Court of Kentucky issued the opinion of Walker v. Commonwealth, 349 S.W.3d 307 (Ky. 2011), which became final on October 13, 2011. This case is the subject of Kerr’s motion for leave to file and notice of binding authority, which this Court has granted. We have reviewed this recent opinion and note that the trial judge in Walker is the same trial judge in the present case and that virtually identical comments were made in each case. Furthermore, the issue was not preserved in either case. Accordingly, we hold that the Supreme Court’s holding in Walker is determinative as to this issue, and we shall set forth the applicable portion of the opinion below:

Walker also contends that his trial was rendered unfair by comments the trial court made to the jury immediately prior to the attorneys' opening statements. Having sworn in the jury, the trial court sought to orient it by providing what the court styled a “roadmap” of the proceedings. The court briefly described the phases of the trial and the roles of the participants. In explaining the jury's role as the finder of fact, the court noted that the jury was the sole arbiter of the weight to be given the various pieces of evidence and the sole judge of the various witnesses' credibility. The court then advised the jury that a witness's credibility might be assessed by considering such factors as the witness's interest or lack of interest in the outcome of the proceeding, the clarity of the witness's recollection, the witness's demeanor, his or her opportunity for observation, and the overall reasonableness of the witness's testimony. Walker maintains that this latter advice purporting to tell the jury how to carry out its role amounted to a judicial invasion of the jury's province and thus undermined the integrity of his trial. Again, Walker did not preserve this issue by means of a timely objection, and so our review is limited under RCr 10.26 to asking whether the “how to” portion of the trial court's preamble was clearly improper, prejudiced Walker, and was so contrary to our ideal of fair and impartial proceedings as to be manifestly unjust. Brown v. Commonwealth, 313 S.W.3d 577, 595 (Ky. 2010). Walker attempts to evade this strict standard by asserting that the trial court's error was of constitutional magnitude—a violation of sections 7 and 11 of the Kentucky Constitution—but even alleged constitutional errors, if unpreserved, are subject to palpable error review. Jones v. Commonwealth, 319 S.W.3d 295, 297 (Ky. 2010). Since the alleged error here does not meet the palpable error standard, it does not entitle Walker to relief.

As Walker correctly notes, in jury trials the practice in Kentucky, since statehood it appears, has been to disapprove judicial comment on the evidence and to leave exclusively to the jury the finding of facts. Allen v. Kopman, 32 Ky. 221, 2 Dana 221 (1834); Howard v. Coke, 46 Ky. 655, 7 B.Mon. 655 (1847); Cross v. Clark, 308 Ky. 18, 213 S.W.2d 443 (1948); Allen v. Commonwealth, 286 S.W.3d 221 (Ky. 2009). Although we reject Walker's suggestion that this practice of eschewing judicial comment is a constitutional requirement,2 it is nevertheless firmly rooted in ouR common law, as noted, and in our rules. RCr 9.54 and 9.58, for example, provide that the court shall decide and instruct on questions of law. Implicit in those provisions is the understanding that questions of fact are for the jury.

Notwithstanding, then, the broad discretion accorded trial courts to control the proceedings before them, Transit Authority of River City (TARC) v. Montgomery, 836 S.W.2d 413 (Ky. 1992), and the obvious desirability of giving jurors at the outset of trial some idea of what to expect and what will be expected of them, we agree with Walker that the trial court's instructions regarding how credibility is to be assessed strained, at least, the line judicial comment is not to breach. In Stewart v. Commonwealth, 9 Ky.Op. 793, 794 (1877), our predecessor Court considered an instruction the trial court had given at the close of proof, in which the jury were told that they were the judges of the credibility of the witnesses and the weight of the evidence, and in determining these questions they should take into consideration the demeanor of the witnesses on the witness stand, their intelligence or

2 Section 11 of our Constitution guarantees criminal defendants prosecuted by indictment or information “a speedy public trial by an impartial jury of the vicinage.” Judicial commentthreatens not the impartiality of the jury, however, which is sought to be assured by voir dire, but possibly the jury's independence. Section 7 of our Constitution provides that “[t]he ancient mode of trial by jury shall be held sacred, and the right thereof remain inviolate, subject to such modifications as may be authorized by this Constitution.” The “ancient mode” of trial by jury is generally regarded as the common law practice in England, and particularly that practice immediately prior to the adoption of the federal constitution. Wendling v. Commonwealth, 143 Ky. 587, 137 S.W. 205 (1911). It so happens that the English common law judges regularly commented on the evidence, even to the extent of offering their opinions to the jury as to weight and credibility. Renee Lettow Lerner, The Transformation of the American Civil Trial: The Silent Judge, 42 Wm. & Mary L.Rev. 195 (Oct. 2000). A plausible argument can be made, therefore, that far from prohibiting judicial comment, Section 7 guarantees it. Robert O. Lukowsky, The Constitutional Right of Litigants to Have the State Trial Judge Comment Upon the Evidence, 55 Ky. L.J. 121 (1966–67). Neither our predecessor Court nor this one, however, has ever read the constitutional provisions as dictating the details of jury practice beyond the requirements, in felony cases, that the jury consist of twelve persons and that its verdict be unanimous. Short v. Commonwealth, 519 S.W.2d 828 (Ky. 1975) (quoting from Wendling, supra). But see Lucas v. Commonwealth, 118 Ky. 818, 82 S.W. 440 (1904) (holding that the court may not direct a verdict of guilty in a criminal case and opining that rules under the old Criminal Code assigning matters of law to the court and matters of fact to the jury were in furtherance of Section 7). We decline to depart from that reading here. [Footnote 1 in original.]

want of intelligence, the relation to or interest in the prosecution or defense, the opportunities or want of opportunities of knowing the facts about which they testified, and that by these tests, and from all the facts and circumstances allowed to go into evidence, they should give to the evidence such weight as they might believe it entitled to.

Although not faulting this instruction as an incorrect statement of the law, the Court nevertheless reversed the appellant's murder conviction because by specifying factors the jury was to consider the instruction risked emphasizing certain items of evidence and suggesting to the jury the court's attitude toward certain witnesses. The “safer and a better practice,” the Court concluded, was “to withhold instructions upon matters relating to the credibility of witnesses and the weight of evidence, or the rules by which the jury should be governed in passing upon either.” Stewart, 9 Ky.Op. at 795.

Similarly, in Barnett v. Commonwealth, 84 Ky. 449, 1 S.W. 722 (1886), the Court addressed an instruction providing that [t]he jury are the sole judges for themselves of the weight of the testimony and credibility of the witnesses, and may attach such weight to any and all parts thereof as they may think proper, and if they believe that any witness or witnesses have willfully sworn falsely as to any material fact, they may, if they deem proper, disregard the entire testimony of such witness or witnesses.

Barnett, 1 S.W. at 723. “Theoretically, this is all true,” the Court allowed, “and yet this Court has repeatedly condemned such an instruction, because it in effect invades the province of the jury.” Id.

Here, of course, the trial court's advice about assessing credibility came before rather than after the witnesses had testified, and no doubt that lessened the risk that the instruction might be perceived as inviting scrutiny of any witness's testimony in particular. Here, too, the trial court took scrupulous care to impress upon the jury that it intended no comment on the evidence and that the jury was to disregard anything that might seem like such a comment. Walker has suggested no way in which the court's pre-opening statement witness credibility remarks might have distorted the jury's findings. We cannot say, then, notwithstanding the tension we have noted between the trial court's practice here and the practice Kentucky courts have long observed, that the court's advice about assessing credibility amounted to a palpable error. Our case law does not appear to have addressed this sort of pre- opening instruction, so we cannot say that the trial court clearly or palpably abused its discretion. Moreover, Walker does not appear to have been prejudiced by the court's comments, much less substantially so; indeed, it cannot reasonably be maintained that the court's facially neutral and carefully chosen comments rendered Walker's trial manifestly unjust. Therefore, Walker is not entitled to relief on this ground.

Walker, 349 S.W.3d at 313-15.

TORT REPORT FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

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99. JURISDICTION. APPEALS (FINALITY)
MCGLADDERY (JOHN), ET AL.
VS.
HANSEN (BRANDON), ET AL.
OPINION AND ORDER DISMISSING
ACREE (PRESIDING JUDGE)
WINE (CONCURS) AND LAMBERT (CONCURS)
2010-CA-001525-MR
NOT TO BE PUBLISHED
BOONE

ACREE, JUDGE: The issue presented to this Court is whether the Boone Circuit Court erred when it dismissed, with prejudice, the appellants’ claims against the appellees on the ground that appellees were not subject to personal jurisdiction before that court. However, the order from which the appeal is taken is interlocutory and did not include both determinations required by Kentucky Rules of Civil Procedure (CR) 54.02 necessary to convert the interlocutory order into a final and appealable order. Therefore, we dismiss the appeal.

This court is required to raise a jurisdictional issue on its own motion if the underlying order lacks finality. Huff v. Wood–Mosaic Corp., 454 S.W.2d 705, 706 (Ky. 1970). Unfortunately, we recognize a jurisdictional issue in this case and must dismiss the appeal because the circuit court did not make the necessary determination that “there is no just reason for delay.” CR 54.02.

The Kentucky Supreme Court has explained how CR 54.02 operates:

In any case presenting multiple claims or multiple parties, CR 54.02 . . . , vests the trial court – as the tribunal most familiar with the case – with discretion to release for appeal final decisions upon one or more, but less than all, claims in multiple claims actions. In such a case, the trial court functions as a dispatcher. If the trial court grants a final judgment upon one or more but less than all of the claims or parties, that decision remains interlocutory unless the trial court makes a separate determination that there is no just reason for delay. And the trial court's judgment shall recite such determination and shall recite that the judgment is final.

Watson v. Best Financial Services, Inc., 245 S.W.3d 722, 726 (Ky. 2008) (internal citations and quotation marks omitted).

These recitations on the part of the trial court are mandatory:

For the purpose of making an otherwise interlocutory order final and appealable, the trial court is required to determine “that there is no just reason for delay,” and the judgment must recite this determination and also recite that the judgment is final. CR 54.02(1). The omission of one of these requirements is fatal.

Hale v. Deaton, 528 S.W.2d 719, 722 (Ky. 1975).

CAG cannot appeal the dismissal of Fountain Head until the order doing so becomes final. As for now, the order “is interlocutory and subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.” CR 54.02(1).

105. MEDICAL MALPRACTICE CLAIM (SUMMARY JUDGMENT AND GENUINE ISSUES)
HAYES (MARK)
VS.
ASHLAND HOSPITAL CORPORATION
OPINION AFFIRMING
TAYLOR (PRESIDING JUDGE)
DIXON (CONCURS) AND LAMBERT (CONCURS)
2010-CA-002113-MR
NOT TO BE PUBLISHED
BOYD

TAYLOR, CHIEF JUDGE: Mark Lynn Hayes, II, individually and as administrator of the Estate of Kimberly Carter Hayes, (collectively referred to as appellants) bring this appeal from an October 22, 2010, summary judgment of the Boyd Circuit Court dismissing their medical malpractice action. We affirm.

To prove medical negligence, a plaintiff must demonstrate the standard of care (duty), breach of the standard of care, and that such breach caused injury. See Andrew v. Begley, 203 S.W.3d 165 (Ky. App. 2006). Generally, an expert opinion is required in a medical negligence action to establish the standard of care, breach of such standard, and causation. Jarboe v. Harting, 397 S.W.2d 775 (Ky. 1965); Morris v. Hoffman, 551 S.W.2d 8 (Ky. App. 1977). Our case law has carved out one exception to this rule in medical and professional malpractice actions where the negligence is so apparent that a layperson with general knowledge would have no difficulty in recognizing the malpractice. Stephens v. Denison, 150 S.W.3d 80 (Ky. App. 2004).

Accordingly, there being no genuine issue of material fact as to causation of death, the circuit court properly rendered summary judgment dismissing appellants’ medical malpractice claim.

107. TORTS. FARM ANIMAL ACTIVITIES ACT.
BIESTY (THOMAS)
VS.
FLYNN (WILTON), ET AL.
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
TAYLOR (CONCURS) AND COMBS (CONCURS)
2011-CA-000084-MR
NOT TO BE PUBLISHED
ESTILL

NICKELL, JUDGE: Thomas Biesty has appealed from the Estill Circuit Court’s entry of summary judgment in favor of Wilton Flynn and his brother, Lamon Flynn. He contends the trial court erroneously found the Farm Animal Activities Act1 (“the Act”) insulated the Flynns from liability for Biesty’s injuries sustained while training Lamon’s horse on Wilton’s farm. We affirm.

Feb. 2012 Court of Appeals Argument Calendar

Michael Stevens — 2012-02-03T00:02:05-05:00

Click here for entire calendar for this month at AOC.

Click here for entire INDEX to COA calendars organized by month and year.

LOCATION: COURT OF APPEALS COURTROOM, 360 DEMOCRAT DRIVE,
FRANKFORT, KENTUCKY
DATE: Tuesday, February 7, 2012

1:00 pm
BRIAN LEMONS v COMMONWEALTH OF KENTUCKY
Appeal from a conditional guilty plea to 2nd degree manslaughter and assault under EED. Denial of motion to dismiss indictment based on self-defense immunity provision of KRS 503.085. Sufficiency of evidence supporting finding of probable cause; timeliness of motion, applicable standard of review.

1:55 pm
U.S. NATIONAL BANK ASSOCIATION, AS SUCCESSOR IN INTEREST v AMERICAN GENERAL HOME EQUITY, INC.
Consolidated appeals following foreclosure sale and distribution of proceeds to pay ad valorum tax liens. Whether amount of "credit bid" in foreclosure sale can be considered part of sale proceeds. Liability of foreclosing mortgage company for payment of "credit bid" amounts for senior tax liens.

LOCATION: JEFFERSON COUNTY JUDICIAL CENTER, 10TH FLOOR APPELLATE
COURTROOM, 700 WEST JEFFERSON STREET, LOUISVILLE,
DATE: Wednesday, February 15, 2012

1:00 pm
DERICK DULIN v COMMONWEALTH OF KENTUCKY
Whether circuit court properly denied CR 60.02 motion.

1:45 pm
BRIAN BROWN v COMMONWEALTH OF KENTUCKY
Whether appellant should have been sentenced as a juvenile.

2:30 pm
S. R. L., A CHILD UNDER EIGHTEEN v COMMONWEALTH OF KENTUCKY
11-CA-110 - Whether circuit court erred by exercising jurisdiction over appellant charged with “beyond control of school”. 11-CA-111 - Appeal from status offender adjudication. Appellant alleges that Family Court lacked subject matter jurisdiction.

LOCATION: JEFFERSON COUNTY JUDICIAL CENTER, 10TH FLOOR APPELLATE
COURTROOM, 700 WEST JEFFERSON STREET, LOUISVILLE,
DATE: Thursday, February 16, 2012

10:00 am
SHIVLEY CENTER, LLC v TEXAS ROADHOUSE OF DIXIE HIGHWAY, LLC
MOR appeal from grant of summary judgment in suit filed to seek declaratory judgment, injunctive relief and damages in regard to purchase of commercial property and whether the chose in action to enforce payment of parking charges was transferred to purchaser. Issues are the construction of contract, availability of remedy, applicability of laches and waiver and unjust enrichment.

10:45 am
LEONARD ROBINSON v COUNTRYWIDE HOME LOANS SERVICING, LLP
MOR appeal from judgment in home foreclosureaction. Issues include whether Appellee Countrywide has standing to foreclose without having recorded the assignment of the mortgage from its predecessor, and whether Appellants were fraudulently induced to enter into the mortgage agreement

11:30 am
SMD ENTERPRISES, LLC v STEVE MASIELLO
MOR appeal from sua sponte order dismissing action with prejudice. Issue at the trial court was whether a contract entered into in Kentucky is enforceable where the purpose of the contract is not legal in this state but is legal in the state in which the purpose is carried out. Issues on appeal include whether trial court acted properly in its sua sponte order, whether Appellee was agent of Appellant, whether trial court could have enforced the valid provisions.

1:00 pm
DAVID LEWIS HARRIS v SUSAN ELIZABETH HARRIS
Whether circuit court erred by granting three-year extension on domestic violence order.

1:45 pm
PAULA B. BROWN v LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT
Whether circuit court erred by determining that the Civil Service Commission abused its discretion by excluding certain evidence.

2:30 pm
BRYAN FULLER v JOANN BLAIR
Whether appellee was “owner” of dog within meaning of KRS 258.235.

LOCATION: FAYETTE COUNTY CIRCUIT COURT, COURTROOM I, 4TH FLOOR,
120 NORTH LIMESTONE, LEXINGTON, KENTUCKY
DATE: Wednesday, February 29, 2012

10:00 am
COMMONWEALTH OF KENTUCKY, v LEXINGTON H-L SERVICING, INC.
At issue is whether the circuit court erred in awarding costs and attorneys' fees to two Kentucky newspapers pursuant to KRS 61.882 (5) following a finding that the Cabinet for Health and Family Services "willfully withheld" records in violation of the Kentucky Open Records Act. The Cabinet had relied upon opinions from Kentucky's Attorney General and a number of state and federal law exemptions in denying the newspapers' open records requests.

10:45 am
LAURENCE H. KANT v LEXINGTON THEOLOGICAL SEMINARY
Civil Case: Appeal from summary judgment; issues involve the “ministerial exception” in a termination of employment case

11:30 am
RANDALL L. STATHERS v GARRARD COUNTY BOARD OF EDUCATION
Civil; Summary Judgment; Immunity: Appeal (1) Whether the trial court erred in granting the appellees summary judgment on the basis that the appellants’ expert opinion failed to establish a causal connection between the appellees’ conduct and the damage to the appellants’ homes. (2) Whether the trial court erred in finding the appellants failed to submit sufficient lay testimony to establish the requisite causal connection. Cross-Appeal – Whether the Garrard Co. Board of Education is entitled to governmental immunity.

1:00 pm
JIMMY KIRBY v LEXINGTON THEOLOGICAL SEMINARY
Case of first impression in which Appellant appeals a dismissal from circuit court for lack of
subject-matter jurisdiction under the religion clauses of the First Amendment to the Constitution. Interpretation of Ecclesiastical Abstention Doctrine.

1:45 pm
MARY B. CALHOUN v CHARLES E. PROVENCE II.
MOR appeal and cross appeal from Jury trial in personal injury case resulting in verdict for appellant. Issues are 1)whether trial court erred in bifurcating of trial; 2) whether trial court erred in directing verdict for two defendants, 3) whether trial court erred in failing to grant directed verdict and grant new trial to appellant/plaintiff on issue of causation, 4) whether trial court erred in excluding evidence, 5) whether as a matter of law title passed from one dealer to another thereby passing legal responsibility for insurance coverage.

Appeals: Preserving error on appeal (instructions, manifest injustice, as applied to judge issues re unjust enrichment and piercing the corporate veil

Michael Stevens — 2012-01-22T20:42:42-05:00

The following published decision addresses the failure to preserve error on appeal relative to instructions. The issues surrounded preserving the error, manifest injustice; within the context of unjust enrichment and piercing the corporate veil.

KILLIAN V. TUNACAKES PROPERTIES, INC.
COA, PUBLISHED
JAN. 20, 2012

Killian also argues that the trial court erred in allowing a jury instruction on unjust enrichment. Although it is unclear, it appears that Killian is arguing that, by allowing the jury instruction on unjust enrichment, the trial court implicitly pierced the corporate veil, allowing Killian to be held personally liable.

The unjust enrichment jury instruction read as follows: INSTRUCTION NO. 6
Are you satisfied from the evidence that:

a) That SJK, SK Development, LLC and Steven Killian have each benefitted, and have continued to benefit economically by the acquisition of Settlers Trace and that such acquisition would not have been possible unless Tunacakes had agreed to enter into the Consulting Agreement with SJK;
b) That SJK, SK Development, LLC and Steven Killian have each benefitted, and continued to benefit economically by the [sic] purchasing Settlers Trace and that said acquisition would not have been possible unless Tunacakes accepted the Promissory Note from SJK;
c) SJK, SK Development, LLC and Steven Killian, continue to use, possess and/or otherwise enjoy the benefits of an income producing business and property, which would not have been available, but for Tunacakes’ acceptance of the payment terms of the Consulting Agreement and Promissory Note; and
d) To prevent unjust enrichment, SJK, SK Development, LLC and Steven Killian, are jointly and severally liable for full restitution to Tunacakes in amounts now due and owing under the payment terms of the Consulting Agreement and Promissory Note.

Initially, we note that Killian’s brief fails to include a statement on how he preserved this issue for appeal as required by Kentucky Rule of Civil Procedure (CR) 76.12(4)(c)(v). It is not the burden of the Court to search the record to find proof of the Appellants’ claims. See Phelps v. Louisville Water Co., 103 S.W.3d 46, 53 (Ky. 2003). Having carefully reviewed the record, we note that this issue was not preserved for review because Killian did not timely object to the unjust enrichment instruction. Pursuant to CR 51(3), the time to object to jury instructions is prior to the court instructing the jury. As stated in Harris v. Thompson, 497 S.W.2d 422, 431 (Ky. 1973), “if the appellants were not satisfied with any phase or portion of the instructions the time to speak was before they were given to the jury.” Further, “a general objection without specification is insufficient to preserve the [alleged] error.” Burgess v. Taylor, 44 S.W.3d 806, 814 (Ky. App. 2001).

A review of the record reflects that Killian made an objection to the jury instruction on unjust enrichment, but only argued that Tunacakes had not presented sufficient evidence to support a finding of unjust enrichment. Killian did not argue that, by allowing an unjust enrichment instruction, the trial court would be implicitly finding that the corporate veil should be pierced. Although it does appear that Killian raised this issue in his motion to alter, amend or vacate the judgment, an objection to a jury instruction raised for the first time in a post-trial
motion is not timely. Burgess, 44 S.W.3d at 814. Therefore, this issue is not properly preserved for our review.

Because this issue was not properly preserved, our review is confined to manifest injustice. As set forth in Carrs Fork Corp. v. Kodak Min. Co., 809 S.W.2d 699, 701 (Ky. 1991):
Civil Rule 61.02 provides that palpable error which affects the substantial rights of a party may be considered by the reviewing court even though insufficiently raised or preserved for review and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error. In applying this rule, the palpable error must result from action taken by the court rather than an act or omission by the attorneys or litigants.
Further, manifest injustice exists only if the error “so seriously affected the fairness, integrity, or public reputation of the proceeding as to be ‘shocking or jurisprudentially intolerable.’” Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky. 2009) (quoting Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006)). We believe that the jury instruction on unjust enrichment resulted in a manifest injustice.

First, we note that any jury instruction on unjust enrichment is improper because unjust enrichment is an equitable doctrine, Dodson v. Key, 508 S.W.2d 586 (Ky. 1974), and the application of an equitable doctrine to the facts of a case is a question of law. Daniels v. CDB Bell, LLC, 300 S.W.3d 204, 210 (Ky. App. 2009). Accordingly, the question of whether Killian, SK Development, and SJK Properties were unjustly enriched, if it were an appropriate inquiry, should not have been decided by the jury but by the trial court.

Next, we note that unjust enrichment is not an available remedy to Tunacakes with regard to SK Development and SJK Properties. The doctrine of unjust enrichment “is applicable as a basis of restitution to prevent one person from keeping money or benefits belonging to another.” Haeberle v. St. Paul Fire & Marine Ins., 769 S.W.2d 64, 67 (Ky. App. 1989) (citations omitted). However, when “an express contract is made defining the circumstances under which an obligation may arise with reference to a certain subject matter such contract excludes the possibility of an implied contract concerning the same matter.” Sparks Milling Co. v. Powell, 283 Ky. 669, 672, 143 S.W.2d 75, 76 (1940). Therefore, any recovery must be under the terms of the express contract. Id. In this case, there was a written contract that set forth the obligations of SK Development and SJK Properties to Tunacakes. Thus, unjust enrichment was not an available remedy for Tunacakes as to SK Development and SJK Properties.

Finally, we conclude that unjust enrichment, as used in this case, imposed personal liability on Killian thereby piercing the corporate veil. As noted by this Court in Daniels, 300 S.W.3d at 211, “piercing the corporate veil” is “the judicial act of imposing personal liability on otherwise immune corporate officers, directors, and shareholders for the corporation’s wrongful acts, . . .” (Quoting 18 C.J.S. Corporations § 14 (2008)). “[T]he decision as to whether to pierce the corporate veil is an equitable one to be decided by the trial court and not the jury.” Id. at 213.

Based on the preceding, Killian could not be held personally liable until the trial court determined that the corporate veil could be pierced. Having carefully reviewed the record, we note that the trial court did not make such a finding. Absent such a finding, the unjust enrichment instruction, which allowed the jury to hold Killian personally liable for the liabilities of SK Development and SJK Properties, resulted in a manifest injustice. Accordingly, we remand this case for the trial court to determine whether the corporate veil can be pierced. If the corporate veil cannot be pierced, then a finding that Killian was unjustly enriched would be inappropriate because Killian cannot be held personally liable. If the trial court determines that the corporate veil can be pierced, then there need not be a determination as to whether Killian was unjustly enriched. Killian would be personally and contractually liable for the wrongful acts of SK Development and SJK Properties. As previously noted, because Tunacakes would have contractual remedies, the equitable remedy of unjust enrichment would not apply.

Defenses: Res Judicata and Collateral Estoppel

Michael Stevens — 2012-01-22T20:28:32-05:00

PRICE V. YELLOW CAB CO. OF LOUISVILLE
COA, PUBLISHED
JAN. 20, 2012

Res judicata is an affirmative defense that bars repetitious suits involving the same cause of action. Yeoman v. Commonwealth, Health Policy Board, 983 S.W.2d 459, 464 (Ky. 1998). The Supreme Court of Kentucky defined this doctrine in City of Louisville v. Louisville Professional Firefighters Ass’n, Local Union No. 345, IAFF, AFL-CIO, 813 S.W.2d 804, 806 (Ky. 1991), as follows: “Under the doctrine of res judicata or ‘claim preclusion,’ a judgment on the merits in a prior suit involving the same parties or their privies bars a subsequent suit based upon the same cause of action.” The City of Louisville Court then cited to Newman v. Newman, 451 S.W.2d 417, 419 (Ky. 1970), in which the former Court of Appeals addressed the elements of res judicata:

The general rule for determining the question of res judicata as between parties in actions embraces several conditions. First, there must be identity of the parties. Second, there must be identity of the two causes of action. Third, the action must be decided on its merits. In short, the rule of res judicata does not act as a bar if there are different issues or the questions of law presented are different.

City of Louisville, 813 S.W.2d at 806. In City of Covington v. Board of Trustees of Policemen's and Firefighters' Retirement Fund of City of Covington, 903 S.W.2d 517, 521 (Ky. 1995), the Supreme Court addressed the doctrine of collateral estoppel:

Collateral estoppel is closely related to the doctrine of res judicata. The latter may be used to preclude entire claims that were brought or should have been brought in a prior action, while the doctrine of collateral estoppel only applies to issues actually litigated. Offensive collateral estoppel refers to the successful assertion by a party seeking affirmative relief that a party to a prior adjudication who was unsuccessful on a particular issue in that adjudication is barred from relitigating the issue in a subsequent proceeding. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.4, 99 S.Ct. 645, 649 n. 4, 58 L.Ed.2d 552 (1979). Defensive use occurs when a defendant seeks to prevent a plaintiff from asserting a claim the other plaintiff had previously litigated and lost against another defendant. Id.

Defenses: COA in NPO decision addresses immunity issue re bullying charges and supervision of students

Michael Stevens — 2012-01-22T20:26:08-05:00

FLORENCE V. L.P.
COA NPO
JAN. 20, 2012

STUMBO, JUDGE: Joyce Florence, Mike Ernst, and Michael Bayless (hereinafter collectively referred to as the appellants) appeal from an order denying summary judgment based on qualified official immunity. These appellants argue that they are entitled to immunity based on state and federal grounds. L.P. (hereinafter referred to as Mother),2 argues that the appellants are not entitled to immunity, or at a minimum, that there are still genuine issues of material fact that preclude the grant of summary judgment. We find that the trial court incorrectly denied summary judgment to the appellants and reverse and remand with instructions to grant summary judgment in favor of all three appellants.

There are two cases that Jane Doe relies on to show that the supervision of students is ministerial. Those are Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001), and Williams v. Kentucky Dept. of Educ., 113 S.W.3d 145 (Ky. 2003). We find these two cases distinguishable, for the same reasons the Kentucky Supreme Court did in Turner, supra.

Although we consider [Appellant’s] conduct in this case to be discretionary, we recognize the apparent incongruity with our precedent regarding a supervisory duty in the public school setting, as “we have held that a claim of negligent supervision may go to a ministerial act or function in the public school setting.” However, Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001)[,] and Williams [v. Kentucky Dept. of Educ.], 113 S.W.3d 145 [(Ky. 2003)]-the cases relied upon in enunciating the public school distinction-have quite different facts from those before us.
In Yanero, this Court deemed “enforcement of a known rule requiring that student athletes wear batting helmets during baseball batting practice” to be ministerial. Unlike the teacher’s decision-making in this case, a helmet requirement constitutes “an essentially objective and binary directive.” As a result, “[t]here is no substantial compliance with such an order and it cannot be a matter of degree: its enforcement was absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts.” You do it or you don’t-and unlike here, there is no factual determination required for its application.

Admittedly, [in Williams] we have also “rejected the notion that the failure of teachers ... to supervise their students in the face of known and recognized misbehavior was a discretionary act.” This decision stemmed from the requirement in KRS 161.180(1) that teachers must “hold pupils to strict account for their conduct on school premises, on the way to and from school, and on school sponsored trips and activities.” The dispute in this case, though, concerns the means of supervision rather than a failure to supervise students who were drinking and driving to and from a school- sponsored function as occurred in Williams.
Turner at 876-877(citations omitted). In the case at hand, the appellants’ supervision of the students required more discretionary actions than requiring a student to wear a helmet during batting practice, as in Yanero. Further, the appellants did not fail to supervise and discipline students, as was the case in Williams. As is clear from the evidence of record consisting of depositions, e-mails exchanged by Mother to the school staff, and transcripts of telephone calls, the appellants all took action when notified by Mother of her belief that her daughter was being bullied and harassed. Florence acted by meeting with teachers to see if they knew about the harassment and to direct them to monitor Doe and Student 1. She also directly asked Doe if there was anything Doe needed to tell her about the incidents or if Doe would like her to follow up later. Florence gave Doe an administrative pass that would allow her to leave class anytime she felt uncomfortable or anxious and had Student 1’s schedule changed so he and Doe would not be in the same class. Florence also called and e- mailed Mother in order to keep her informed and to gather more information.

Public officials are presumed to have performed their duties in good faith. Rowan County, supra; Koscot Interplanetary, Inc. v. Commonwealth, by Allphin, 649 S.W.2d 201, 202 (Ky. 1983). Although Doe’s brief suggests bad faith on the part of the appellants, the record of appellants’ conduct from the first incident brought to their attention in mid-January until Mother removed Doe from Crawford in mid-April contains not an instance of disrespectful or unconcerned conduct toward Doe or her mother. On the contrary, what is notable in review of the e-mail and recorded conversations between the appellants and Mother and between the appellants and other school personnel is the respectful, concerned tone which the appellants maintained even as the tone of Mother increasingly reflected her escalating frustration due to her perceptions of Doe’s victimization. However, a concerned parent’s conclusion that her child is being victimized does not make it so. What is legally significant is that her concerns were heard and the appellants took steps to determine whether Doe was being bullied and to stop or prevent any bullying.
In discussing the conduct of school officials following the carnage at the hands of Michael Carneal, the James Court stated:

Any of the conduct engaged in by the teachers, administrators and Board members can be properly classified as discretionary as they personify the type of acts which are intended to receive protection. Without such protection, the ability of those entrusted with the education of our children to perform the varied functions fundamental to their employment would be hindered. The conduct exhibited by the school appellees inherently required conscious evaluation of alternatives, personal reflection and significant judgment. By definition, their actions were discretionary. In this circumstance, their judgment may arguably be questionable, particularly with the benefit of hindsight, but applying such an unrealistic standard is not only unjust, it’s unauthorized.

James, at 909-10. In this case, there is no allegation that known rights were violated or
that malice and/or corruption were responsible for the conduct of the school personnel. Consequently, neither the appellants’ actions nor any inaction resulted from bad faith. The Kentucky Supreme Court has stated, [i]t is imperative that teachers maintain the discretion to teach, supervise, and appropriately discipline children in the classroom. To do this, they must have appropriate leeway to do so, to investigate complaints by parents, or others, as to the conduct of their students, to form conclusions (based on facts not always known) as to what actually happened, and ultimately to determine an appropriate course of action, which may, at times, involve reporting the conduct of a child to the appropriate authorities. In fact, protection of the discretionary powers of our public officials and employees, exercised in good faith, is the very foundation of our doctrine of “qualified official immunity.”

Turner at 876. Based on the foregoing, we find that the trial court incorrectly denied
summary judgment for the appellants. We therefore reverse and remand this case with instructions to grant the appellants’ motions for summary judgment due to qualified official immunity.

Causes of Action: Malicious Prosecution

Michael Stevens — 2012-01-22T20:20:28-05:00

The Court of Appeals in a nonpublished decision addressed malicious prosecution relative to lack of probable cause by the defendant to have brought criminal charges against the plaintiff. See Whitlock v. Haney, COA, NPO, Jan. 20, 2012.

[T]there are six basic elements necessary to the maintenance of an action for malicious prosecution:

(1) the institution or continuation of original judicial proceedings, either civil or criminal, or of administrative or disciplinary proceedings, (2) by, or at the instance, of the plaintiff, (3) the termination of such proceedings in defendant’s favor, (4) malice in the institution of such proceeding, (5) want or lack of probable cause for the proceeding, and (6) the suffering of damage as a result of the proceeding.

Raine v. Drasin, 621 S.W.2d 895, 899 (Ky. 1981). Historically, the tort of malicious prosecution is one that has not been favored in the law. Prewitt v. Sexton, 777 S.W.2d 891, 895 (Ky. 1989); Reid v. True, 302 S.W.2d 846, 847–848 (Ky. 1957). Accordingly, one claiming malicious prosecution must strictly comply with the elements of the tort. See Prewitt, 777 S.W.2d at 895; Raine, 621 S.W.2d at 899.

In granting the directed verdict for Haney, the trial court concluded that Whitlock had failed to show that Haney lacked probable cause for bringing the criminal complaint. Where the indictment is based upon other testimony than that of the prosecutor alone, the indictment creates a rebuttable presumption of probable cause. Davidson v. Castner-Knott Dry Goods Co., Inc., 202 S.W.3d 597, 607 (Ky. App. 2006), citing Conder v. Morrison, 275 Ky. 360, 121 S.W.2d 930, 931 (Ky. App. 1938). The trial court analyzed Haney’s grand jury testimony and found nothing which could be characterized as untrue.

* * *

The plaintiff in a malicious prosecution action has the burden of establishing a lack of probable cause. Collins v. Williams, 10 S.W.3d 493, 496 (Ky. App. 1999). Where the facts are undisputed, whether probable cause is generally a question of law for the court to decide. Id. However, the trial court essentially concluded that Haney’s omission of facts would not rebut the grand jury’s finding of probable cause. We disagree.

2012 COA: Jan. 20, 2012 COA Minutes

Michael Stevens — 2012-01-22T20:11:46-05:00

Jan. 20, 2012 COA Minutes -- Nos. 59-83 (25 decisions; 7 published)

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PUBLISHED DECISIONS OF COA:

61. CRIMINAL LAW; SEARCH AND SEIZURE
ARTIS (ANTONIO)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
WINE (PRESIDING JUDGE)
MOORE (CONCURS) AND STUMBO (CONCURS)
2010-CA-000437-MR
TO BE PUBLISHED
CHRISTIAN

WINE, JUDGE: Antonio Artis appeals from his conditional plea of guilty in the Christian Circuit Court to possession of marijuana (while armed), possession of a handgun by a convicted felon, and operating a motor vehicle on a revoked or suspended license. On appeal, Artis challenges the denial of his motion to suppress under Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009), and argues that the trial court erroneously applied the “good faith” exception to the exclusionary rule. Upon review, we affirm the Christian Circuit Court.

62. CRIMINAL LAW
JOHNSON (FLOYD GROVER)
VS.
COMMONWEALTH OF KENTUCKY
OPINION REVERSING AND REMANDING
CAPERTON (PRESIDING JUDGE)
TAYLOR (CONCURS) AND CLAYTON (CONCURS)
2010-CA-000607-MR
TO BE PUBLISHED
POWELL

CAPERTON, JUDGE: Floyd Grover Johnson appeals from the denial of his motion to dismiss the indictments for three counts of first-degree trafficking in a controlled substance, second or subsequent offense, and one count of delivery of drug paraphernalia, due to a lack of jurisdiction and the correspondingly entered conditional guilty plea. Johnson was sentenced to ten years of imprisonment.

After a thorough review of the parties’ arguments, the record, and the applicable law, we reverse and remand.

66. UNJUST ENRICHMENT. APPEALS (PRESERVING ERROR IN JURY INSTRUCTIONS)
KILLIAN (STEVEN)
VS.
TUNACAKES PROPERTIES, INC.,
ET AL.
OPINION REVERSING AND REMANDING
KELLER (PRESIDING JUDGE)
STUMBO (CONCURS) AND VANMETER (CONCURS)
2010-CA-001396-MR
TO BE PUBLISHED
SPENCER

KELLER, JUDGE: Steven Killian (Killian) appeals from a judgment of the Spencer Circuit Court based upon a jury verdict in favor of Tunacakes Properties, Inc. (Tunacakes). For the reasons set forth below, we reverse and remand.

After a five-day trial, the jury returned a verdict in favor of Tunacakes on all claims against SK Development, SJK Properties, and Killian. Specifically, SJK Properties was found liable to Tunacakes in the amount of $42,391.67 for breach of the Consulting Agreement, and SK Development and SJK Properties were found to be jointly liable to Tunacakes in the amount of $150,000 for breach of the Promissory Note. The jury also determined that SK Development, SJK Properties, and Killian were unjustly enriched and were jointly and severally liable for full restitution to Tunacakes.

The trial court subsequently entered a judgment consistent with the jury’s verdict. On June 28, 2010, Killian filed a motion to alter, amend, or vacate the judgment arguing that Killian could not be held personally liable for the judgments against SK Development and SJK Properties. The trial court denied that motion. This appeal followed.

For the foregoing reasons, we reverse the Judgment of the Spencer Circuit
Court and remand for a new trial. Prior to trial, the court must first determine whether the corporate veil should be pierced. Regardless, Tunacakes is not entitled to an unjust enrichment jury instruction.

67. CRIMINAL LAW
WEST (KEVIN)
VS.
COMMONWEALTH OF KENTUCKY
OPINION VACATING AND REMANDING
CLAYTON (PRESIDING JUDGE)
STUMBO (CONCURS) AND THOMPSON (CONCURS)
2010-CA-001477-MR
TO BE PUBLISHED
CAMPBELL

CLAYTON, JUDGE: Kevin West appeals from a Campbell Circuit Court judgment entered upon a conditional guilty plea convicting him of one count of first-degree possession of a controlled substance, first offense. Because we agree with West that his Fourth Amendment rights were violated when a police officer asked him to step from his car following a routine traffic stop, we vacate the judgment of conviction and remand for further proceedings consistent with this opinion.

70. CIVIL PROCEDURE. AFFIRMATIVE DEFENSES, RES JUDICATA.
PRICE (RACHEL)
VS.
YELLOW CAB CO. OF LOUISVILLE
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
CLAYTON (CONCURS) AND DIXON (CONCURS)
2010-CA-001894-MR
TO BE PUBLISHED
JEFFERSON

LAMBERT, JUDGE: Rachel Price has appealed from the opinion and order of the Jefferson Circuit Court granting summary judgment in favor of Yellow Cab Co. of Louisville and dismissing her complaint on the basis of res judicata. We have carefully considered the record as well as the parties’ arguments in their briefs, and we find no merit in Price’s appeal. Therefore, we affirm the circuit court’s opinion and order.

This case presents us with an unusual situation where the subject matter of the second suit was certainly raised in the prior suit, while the specific causes of actions alleged in the complaint were not actually pled. We must agree with Yellow Cab that because Price actually raised the issue of its alleged fraudulent misrepresentation regarding Garcia’s whereabouts in her prior suit and she was actually successful in obtaining a reversal of the dismissal of the suit based solely upon this argument, she is precluded from bringing claims on this subject matter in a subsequent case. There is nothing in the record, other than Price’s mere assertion in her response to the motion to dismiss and again in her brief, to support her statement that Yellow Cab requested that the misrepresentation issue be severed from the personal injury claim for trial. The record of the trial in the prior action was not certified as a part of the record on appeal, and we have no way to verify this self-serving statement. “It is the appellant's duty to present a complete record on appeal.” Steel Technologies, Inc. v. Congleton, 234 S.W.3d 920, 926 (Ky. 2007). Therefore, we hold that the circuit court did not commit any error as a matter of law in dismissing Price’s complaint.

72. ADMINISRATIVE AND REGULATORY LAW.
COMMONWEALTH OF KENTUCKY, ET AL.
VS.
HANDI-VAN, INC., ET AL.
OPINION VACATING AND REMANDING
COMBS (PRESIDING JUDGE)
NICKELL (CONCURS) AND LAMBERT (CONCURS)
2010-CA-001925-MR
TO BE PUBLISHED
BOONE

COMBS, JUDGE: The Commonwealth of Kentucky, Transportation Cabinet, Department of Vehicle Regulation; and Jerry Anglin, acting Commissioner, (collectively, “the Cabinet”) appeal from an order of the Boone Circuit Court dismissing the Cabinet’s petition for declaratory rights. After our review, we vacate and remand.

In order to promote fairness in administrative hearings, the General Assembly created a division of the OAG that is a special “pool of hearing officers for assignment to the individual agencies at their request, for the conduct of administrative hearings.” KRS 15.111; KRS 13B.010(8). See Underwood, supra, at 362. KRS 13B.030 provides the procedures for an agency to use in contracting for hearing officers from the OAG and other agencies. The Cabinet availed itself of this option in utilizing a hearing officer from the OAG. It properly complied with both law and procedure.
We conclude that the Boone Circuit Court erred in dismissing the Cabinet’s petition for declaration of rights. We vacate its order and remand for entry of a new order.

77. BUSINESS LAW. REAL PARTY IN INTEREST. STANDING. APPEALS.
BRUNER (KENNETH A.)
VS.
DISCOVER BANK
C/O DFS SERVICES, LLC
OPINION VACATING AND REMANDING
MOORE (PRESIDING JUDGE)
NICKELL (CONCURS) AND THOMPSON (CONCURS)
2011-CA-000197-MR
TO BE PUBLISHED
JEFFERSON

MOORE, JUDGE: On May 4, 2009, DFS Services, LLC, filed this collection action in Jefferson Circuit Court against Kenneth A. Bruner, naming itself “Discover Bank” in its complaint and thereafter referring to itself as “Discover Bank c/o DFS Services, LLC” in all of its subsequent pleadings. In substance, DFS’s complaint alleged that Bruner owed Discover Bank a credit card debt of $9,464.82, had defaulted upon that debt, and that Discover Bank was due 19.8% interest on that debt from Bruner pursuant to the terms of a cardmember agreement between Discover Bank and Bruner.1 In part, Bruner responded by asserting that DFS had no standing to sue as a real party in interest, per Civil Rule (CR) 17.01.2 Bruner also requested, approximately 17 months subsequent to when DFS filed its complaint, that the court order this matter submitted to arbitration pursuant to the terms of the cardmember agreement.

After a period of motion practice, DFS moved for summary judgment. In its order granting DFS summary judgment, the circuit court noted that Bruner had raised the issue of DFS’s standing to sue as a real party in interest. Nonetheless, the circuit court held that the evidence of record conclusively established that “Discover Bank is the owner of the subject debt and the real party in interest,” and that “Mr. Bruner is liable to Discover Bank for the claimed debt.” In the same order, the circuit court also denied Bruner’s request to arbitrate. Thereafter, Bruner appealed. After careful review, we vacate and remand.

TORT REPORT FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

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60. BULLYING CLAIM. IMMUNITY OF GOVERNMENT OFFICIALS.
FLORENCE (JOYCE)
VS.
L. (P.)
OPINION REVERSING AND REMANDING
STUMBO (PRESIDING JUDGE)
SHAKE (CONCURS) AND LAMBERT (DISSENTS)
2010-CA-000003-MR
2010-CA-000004-MR
NOT TO BE PUBLISHED
FAYETTE

STUMBO, JUDGE: Joyce Florence, Mike Ernst, and Michael Bayless (hereinafter collectively referred to as the appellants) appeal from an order denying summary judgment based on qualified official immunity. These appellants argue that they are entitled to immunity based on state and federal grounds. L.P. (hereinafter referred to as Mother),2 argues that the appellants are not entitled to immunity, or at a minimum, that there are still genuine issues of material fact that preclude the grant of summary judgment. We find that the trial court incorrectly denied summary judgment to the appellants and reverse and remand with instructions to grant summary judgment in favor of all three appellants.

76. TORTS. MALICIIOUS PROSECUTION.
WHITLOCK (ARTHUR)
VS.
HANEY (LARRY W.) SR.
OPINION REVERSING AND REMANDING
WINE (PRESIDING JUDGE)
ACREE (CONCURS) AND CLAYTON (CONCURS)
2011-CA-000062-MR
NOT TO BE PUBLISHED
CARTER

WINE, JUDGE: Arthur Whitlock appeals from an order of the Carter Circuit Court granting a directed verdict and dismissing his malicious prosecution claim against Larry Haney, Sr. Whitlock argues that there were issues of fact concerning whether Haney lacked probable cause to bring a criminal charge against him. We agree with Whitlock that Haney’s omission of material facts in his grand jury testimony may support a finding that he lacked probable cause to bring the criminal charge. Because this is an issue of fact, we conclude that the trial court erred by granting a directed verdict for Haney. Therefore, we reverse and remand for a new trial on this issue.

2012 COA: Jan. 13, 2012 COA Minutes

Michael Stevens — 2012-01-15T07:19:00-05:00

Jan. 13, 2012 COA Minutes -- Nos. 26-58 (33 decisions; 3 published)

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PUBLISHED DECISIONS OF COA:

33. REAL PROPERTY. CONVENANCE. CHAMPTERY.
HENNINGER (MARY KAY), ET AL.
VS.
BREWSTER (SUZY)
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
CLAYTON (CONCURS) AND WINE (CONCURS)
2010-CA-001110-MR
TO BE PUBLISHED
PULASKI

"ACREE, JUDGE: Appellants Mary Kay and Brent Henninger appeal the Pulaski Circuit Court’s entry of summary judgment in favor of Appellee Suzy Brewster claiming the circuit court erred in determining no genuine issues of material fact exist with respect to Appellee’s champerty defense under Kentucky Revised Statute (KRS) 372.070(1). Finding no error, we affirm."

40. CRIMINAL LAW
LUKJAN (SUSAN KAY)
VS.
COMMONWEALTH OF KENTUCKY
OPINION REVERSING AND REMANDING
ACREE (PRESIDING JUDGE)
TAYLOR (CONCURS IN RESULT ONLY) AND VANMETER (CONCURS)
2010-CA-001509-MR
TO BE PUBLISHED
JEFFERSON

"ACREE, JUDGE: Susan Lukjan appeals the July 23, 2010 judgment of the Jefferson Circuit Court by which she was convicted of arson, burning personal property to defraud an insurer, and committing a fraudulent insurance act over $300;1 the judgment followed a jury trial and sentenced Lukjan to serve a total of twelve years of imprisonment. The bases for her appeal are a variety of trial errors outlined below. Finding certain of her arguments persuasive, we reverse the conviction and remand the matter to the circuit court for a new trial."

"Ordinarily, a trial court’s determination as to whether a witness is qualified to give expert testimony under Kentucky Rules of Evidence (KRE) 702 is subject to an abuse of discretion standard of review. See Farmland Mut. Ins. Co. v. Johnson, 36 S.W.3d 368, 378 (Ky. 2000); Fugate v. Commonwealth, 993 S.W.2d 931, 935 (Ky. 1999); Murphy by Murphy v. Montgomery Elevator Co., 957 S.W.2d 297, 299 (Ky. App. 1997). “An abuse of discretion occurs when a ‘trial judge’s decision [is] arbitrary, unreasonable, unfair, or unsupported by sound legal principles.’” Farmland Mut. Ins. Co., 36 S.W.3d at 378 (quoting Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000))."

"In this instance, however, we are reviewing the circuit court’s interpretation of a statute and do so de novo. Bob Hook Chevrolet Isuzu, Inc. v. Commonwealth Transp. Cabinet, 983 S.W.2d 488, 490 (Ky. 1998). The circuit court’s interpretation of the statutes in question, therefore, is owed no deference."

"Accordingly, we reverse the order of the circuit court finding Hicks could not testify on the basis of KRS 329A.015, reverse Lukjan’s conviction, and remand the case for a new trial. On remand, the circuit court must consider whether any of Lukjan’s proffered experts, including Hicks, qualify, based on the guidelines found in KRE 702 and accompanying caselaw. Under those standards, licensure is not necessary, but may be a factor. See Fugate v. Commonwealth, 993 S.W.2d 931 at 935.5"

"Without the Commonwealth’s three arson experts, there was little direct evidence that the fire was the result of arson, rather than some other cause. Indeed, the testimony of the witnesses now at issue was powerful given their positions of esteem and authority. As a result, the absence of their testimony would have seriously weakened the Commonwealth’s case, and we, therefore, cannot say the error was harmless. We reverse the circuit court’s decision to admit the specialized evidence presented by the Commonwealth without either conducting a preliminary hearing or examining the portions of the record which would have enabled the court to determine the reliability and relevance of the evidence."

"Lukjan’s witness, presented as an expert on fire scene investigations, was improperly excluded on the basis of KRS 329A.015. In addition, the circuit court improperly admitted the opinion testimony of three of the Commonwealth’s expert witnesses without conducting a preliminary hearing or reviewing an adequate record. Finally, the financial documents found in the trash can outside Campbell’s Gourmet Cottage were not obtained as the result of an illegal search of the property, and the lightning-strike report was correctly excluded because it is not a business record.

For the foregoing reasons, we reverse Lukjan’s conviction and remand for a new trial."

49. TRIAL. DIRECTED VERDICT.
NICHOLS (MICHAEL)
VS.
HAZELIP (MICHAEL), ET AL.
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
KELLER (CONCURS) AND STUMBO (CONCURS)
2010-CA-002168-MR
TO BE PUBLISHED
JEFFERSON

"VANMETER, JUDGE: Michael Nichols appeals from a judgment entered by the Jefferson Circuit Court after a jury rendered a verdict in favor of Michael Hazelip and Steven Gregson, regarding a physical altercation that took place between the parties. For the reasons stated hereafter, we affirm."

"Nichols filed a complaint against Gregson and Hazelip for assault and battery, seeking damages related to a shoulder injury he claimed was worsened as a result of the altercation. Gregson filed a counterclaim against Nichols alleging assault. After the presentation of evidence, the parties moved for directed verdicts, which the trial court denied, but ruled that Nichols’ request for damages regarding his shoulder injury was not to be submitted to the jury since he failed to prove any injury was caused by the altercation. The jury found Nichols to be the initial aggressor in the incident, found in favor of Gregson on his counterclaim and awarded $50,000 in compensatory damages for pain and suffering and $200 in punitive damages. This appeal followed.

Nichols’ first argument on appeal is that the trial court erred by denying his motion for a directed verdict in regards to Gregson’s counterclaim. Specifically, Nichols alleges that (1) Gregson could not recover damages for mental suffering absent evidence of a physical injury or contact, and (2) the evidence demonstrated that Gregson was the aggressor in the physical altercation. We disagree."

"Next, Nichols argues he should have been granted a new trial because defense counsel questioned a witness regarding Nichols’ insurance coverage and questioned Nichols regarding his prior psychiatric care. Nichols fails to address how either question resulted in prejudice so as to affect his substantial rights, i.e., affected the outcome of the case. See CR 61.01 (a court “must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties[]”). Thus, we fail to appreciate how this claim of error warrants a new trial.

Nichols’ next argument is that the trial court erred by allowing both Gregson and Hazelip four peremptory strikes since their interests were not antagonistic under CR 47.03. We disagree."

"To determine if coparties have antagonistic interests, courts consider three factors: “1) whether the coparties are charged with separate acts of negligence[]; 2) whether they share a common theory of the case[]; and 3) whether they have filed cross-claims.” Sommerkamp, 114 S.W.3d at 815 (internal citations omitted). The court shall consider other factors, including “whether the defendants are represented by separate counsel; whether the alleged acts of negligence occurred at different times; whether the defendants have individual theories of defense; and whether fault will be subject to apportionment.” Id."

=====================================================

TORT REPORT FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

IF YOU WANT

WORKERS COMPENSATION LAW UPDATES, I RECOMMEND YOU GO TO THE COMP ED WEB SITE AT http://www.comped.net/.
FAMILY LAW UPDATES, I RECOMMEND YOU GO TO Diana Skaggs' Divorce Law Journal at http://www.divorcelawjournal.com

30. CIVIL PROCEDURE. DEFAULT JUDGMENT.
MONTIES RESOURCES, LLC, ET AL.
VS.
EMECO EQUIPMENT (USA), LLC
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING IN NO 2010-CA-001285-MR; AFFIRMING IN 2010-CA-000598-MR; AND AFFIRMING 2010-CA-001286-MR
ACREE (PRESIDING JUDGE)
CLAYTON (CONCURS) AND WINE (CONCURS)
2010-CA-000598-MR
2010-CA-001285-MR
2010-CA-001286-MR
NOT TO BE PUBLISHED
KNOX

51. TORTS. IMMUNITY.
HUMPHREY (KRISTIN), ET AL.
VS.
SAPP (KIM)
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
STUMBO (CONCURS) AND VANMETER (CONCURS)
2010-CA-002278-MR
NOT TO BE PUBLISHED
JEFFERSON

"KELLER, JUDGE: Kristin Humphrey (Kristin), individually and as next friend of L.H. and M.H., and Jason Humphrey (Jason), individually and as next friend of L.H. and M.H. (collectively the Humphreys), appeal from the trial court's summary judgment in favor of Kim Sapp (Sapp). On appeal the Humphreys argue that the court incorrectly determined that Sapp has immunity. Having reviewed the record, we affirm."

2012 COA: Jan. 6, 2012 COA Minutes -- Nos. 1-25 (25 decisions; 3 published)

Michael Stevens — 2012-01-14T12:20:11-05:00

Jan. 6, 2012 COA Minutes -- Nos. 1-25 (25 decisions; 3 published)

Click on the above link for the full text of minutes with link to full text of each decision.
Cick here for AOC page with current minutes and archived minutes links

PUBLISHED DECISIONS OF COA:

3. CRIMINAL LAW
BOWLIN (JOSEPH)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AND ORDER DENYING MOTION TO DISMISS AND VACATING AND REMANDING
LAMBERT (PRESIDING JUDGE)
CAPERTON (CONCURS) AND KELLER (CONCURS IN RESULT ONLY)
2009-CA-001956-MR
TO BE PUBLISHED
GALLATIN

"LAMBERT, JUDGE: Joseph Bowlin appeals from the order of the Gallatin Circuit Court revoking his conditional discharge and imposing a five-year sentence for his conviction for flagrant nonsupport. Based upon the Supreme Court of Kentucky’s recent opinion of Commonwealth v. Marshall, 345 S.W.3d 822 (Ky. 2011),1 we must hold that the circuit court abused its discretion in revoking. Bowlin’s conditional discharge because it failed to provide him with his due process rights. Therefore, we vacate the circuit court’s order."

13. EMPLOYMENT LAW. POLICE OFFICERS.
BEAVERS (BILLY)
VS.
CITY OF BEREA, KENTUCKY, ET AL.
OPINION AFFIRMING
WINE (PRESIDING JUDGE)
TAYLOR (CONCURS) AND CAPERTON (DISSENTS AND FILES SEPARATE OPINION)
2010-CA-001522-MR
TO BE PUBLISHED
MADISON

"WINE, JUDGE: Billy Beavers appeals an order of the Madison Circuit Court granting summary judgment against him on claims of wrongful discharge and due process violations following his termination as a police officer. He argues that his termination violated the due process and hearing protections afforded to police officers under Kentucky Revised Statutes (KRS) 15.520. We agree with the trial court that KRS 15.520 only applies when disciplinary action is taken against a police officer based upon a citizen complaint. Since Beavers’ termination resulted from an internal police investigation without a citizen complaint, the provisions of KRS 15.520 do not apply. Hence, we affirm."

15
SAYLOR (GREGORY)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
TAYLOR (CONCURS) AND THOMPSON (CONCURS)
2010-CA-001705-MR
TO BE PUBLISHED
KENTON

"LAMBERT, JUDGE: Gregory Saylor appeals from the Kenton Circuit Court’s denial of his motion seeking post-conviction relief. After careful review, we affirm the orders of the Kenton Circuit Court.

In his brief to this Court, Saylor argues that his trial counsel’s failure to object to the trial court’s failure to rule on the motion for directed verdict prevented him from getting a ruling on the Commonwealth’s “wanton murder” theory. Saylor argues that since his defense was self-protection, it was ineffective assistance of counsel for trial counsel not to pursue a ruling once the issue was raised by a directed verdict motion. It is not clear exactly what Saylor is arguing amounted to ineffective assistance of counsel, and he makes no mention of how the crime scene evidence was presented at trial. Thus, we are not sure exactly what error Saylor is alleging on appeal and his claim appears to be different than the claim presented to the trial court in his RCr 11.42 motion. It is well established that a defendant is not “permitted to feed one can of worms to the trial judge and another to the appellate court.” Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976) (citations omitted) (overruled on other grounds by Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 2010)). Thus, Saylor’s argument that he received ineffective assistance of counsel when his trial counsel failed to object regarding his motion for directed verdict is without merit."

=====================================================

TORT REPORT FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

IF YOU WANT

WORKERS COMPENSATION LAW UPDATES, I RECOMMEND YOU GO TO THE COMP ED WEB SITE AT http://www.comped.net/.
FAMILY LAW UPDATES, I RECOMMEND YOU GO TO Diana Skaggs' Divorce Law Journal at http://www.divorcelawjournal.com

2. SOVEREIGN IMMUNITY.
MERCER COUNTY FISCAL COURT, ET AL.
VS.
DEAN (KAREN), ET AL.
OPINION REVERSING AND REMANDING
WINE (PRESIDING JUDGE)
ACREE (CONCURS) AND LAMBERT (CONCURS)
2009-CA-001933-MR
NOT TO BE PUBLISHED
MERCER

WINE, JUDGE: Mercer County Fiscal Court and Billy Humphrey, Road Supervisor of the Mercer County Road Department, appeal from the denial of their motion for summary judgment against the Appellees Karen Dean and Kenneth Dean and from the dismissal of their third-party complaint against the Appellee Michael Scull. On appeal, Mercer County and Billy Humphrey argue that they should have been granted summary judgment against the Deans on the basis of immunity and that their complaint against Scull should not have been dismissed because they are entitled to indemnity.

In the present case, Billy Humphrey enjoys official immunity. Indeed, when an officer or employee of a governmental agency is sued in his or her representative capacity, their “actions are afforded the same immunity, . . . to which the agency, itself, would be entitled[.]” Yanero, 65 S.W.3d at 522. Thus, as Mercer County is entitled to the protection of governmental immunity, so is Billy Humphrey in his official capacity as the county road supervisor. Because he was not sued individually, we need not even address the issue of whether the location and placement of a stop sign is a discretionary act. Id.
As both Mercer County and Billy Humphrey are cloaked with immunity, the circuit court is not the proper forum for the action.3 Rather, the proper forum for any claims the Deans may have against Mercer County and Billy 2 In contrast, an employee is not immune from suit for the negligent performance of a ministerial act. 3 Nevertheless, we do not find fault with the Deans’ choice of filing in the circuit court. As the Kentucky Supreme Court recently acknowledged in Nelson County Bd. of Educ., 337 S.W.3d at 622, “the soundest course [when in doubt] is to commence the action in circuit court[]” and let the courts decide whether jurisdiction lies with the courts or the Board of Claims.

Humphrey is the Board of Claims. Nelson County Bd. of Educ., 337 S.W.3d at 621. Thus, the Deans are not left without remedy. As was recently acknowledged in Nelson County Bd. of Educ., the savings statute will operate to allow the timely filing of their claims within the Board of Claims after the dismissal of the present action by the circuit court. Id. at 624; KRS 413.270.

Hence, we reverse and remand to the trial court with instructions for the court to dismiss the action with prejudice. As we are reversing for a dismissal of the action with prejudice, we need not address the issues raised on appeal by Mercer County regarding causation and the dismissal of the third-party complaint against Scull.

11. TRIALS. JURY QUESTIONS.
MCGILL (HELEN OGATA)
VS.
CLAY (ANTHONY), ET AL.
OPINION AFFIRMING
WINE (PRESIDING JUDGE)
TAYLOR (CONCURS) AND CAPERTON (CONCURS)
2010-CA-001280-MR
NOT TO BE PUBLISHED
CLARK

WINE, JUDGE: Helen Ogata McGill appeals from an order of the Clark Circuit Court which denied her motion for a new trial following an adverse jury verdict. McGill argues that the instructions should have explained that it had directed a verdict of liability against the Appellee, Anthony Clay. She further argues that the jury’s questions to the court clearly indicated that they were confused by the instruction and believed that liability was still at issue. As a result, McGill maintains that the trial court should have advised the jury about the directed verdict in response to their questions.

We agree with McGill that the trial court had the discretion to advise the jury about the directed verdict and to clarify the instructions when asked by the jury. Under the circumstances, it may have been a better practice had the trial court directly informed the jury that it had granted a directed verdict on liability for McGill. However, the court sufficiently informed the jury that the only issue before it was to determine McGill’s damages. Since there was substantial evidence to support the jury’s conclusion that McGill’s injuries were not caused by the automobile accident at issue, we conclude that the trial court did not clearly err or abuse its discretion by declining to elaborate further on the instructions. Hence, we affirm.

16. TORTS. DOG ATTACK. LANDLORD.
BRISCOE (CARL)
VS.
JOHNSON (HAYDON)
OPINION REVERSING AND REMANDING
WINE (PRESIDING JUDGE)
ACREE (CONCURS) AND CLAYTON (CONCURS)
2010-CA-001761-MR
NOT TO BE PUBLISHED
POWELL

WINE, JUDGE: Carl Briscoe, Jr., appeals from a summary judgment of the Powell Circuit Court dismissing his claims against Haydon Johnson arising from a dog attack. He argues that genuine issues of material fact remain. Upon review, we agree and reverse the judgment of the Powell Circuit Court.

We find McDonald to be directly on point with the present case. The trial court erred by finding that there was no duty without first determining whether Johnson was the landowner/landlord. The question of whether a duty arose, such as could create liability for Johnson, rests first upon whether Johnson was the landowner/landlord. A genuine issue of material fact remains as to this question. Thus, it was error for the trial court to grant summary judgment in favor of Johnson.

We note, as an aside, that we have not considered the deeds attached to Johnson’s brief in arriving at our decision today, as they are not contained in the record.1 Kentucky Rules of Civil Procedure (CR) 76.12(4)(c)(vii).

In conclusion, we reverse the summary judgment of the Powell Circuit Court and remand for further proceedings consistent with this opinion, including a determination of whether Johnson was the landowner and/or landlord of the property in question. We make no determination regarding whether a duty actually existed or was breached in this case, however.

Jan. 2012 Court of Appeals Argument Calendar

Michael Stevens — 2012-01-10T20:16:26-05:00

Click here for entire calendar for this month at AOC.

Click here for entire INDEX to COA calendars organized by month and year.

LOCATION: JEFFERSON COUNTY JUDICIAL CENTER, 10TH FLOOR APPELLATE
COURTROOM, 700 WEST JEFFERSON STREET, LOUISVILLE,
DATE: Wednesday, January 18, 2012

11:00 am
COMMONWEALTH BANK & TRUST COMPANY, ADMIN. WITH THE v MARGARET W. YOUNG
National City Bank filed a declaratory judgment action requesting the Jefferson Circuit Court to answer seven questions. One of the questions was whether Virginia’s children, beneficiaries of the trust, triggered the “no contest” provision of their mother’s trust by challenging their step-father’s right to withdraw five percent of the trust principal each year. The trial court entered a judgment on the pleadings holding that the three children’s actions did not trigger the no contest provision.

12:15 am
MARQUISA LAVANA PARTEE v COMMONWEALTH OF KENTUCKY
Upon motion by the Commonwealth, the appellant, who had been released on a recognizance bond, was ordered to submit to an in-custody evaluation at K.C.P.C. Appellant complains that she has not alleged a defense of incompetency and that it is improper for the court to change her conditions of bond to determine whether she is competent to stand trial.

LOCATION: COURT OF APPEALS COURTROOM, 360 DEMOCRAT DRIVE,
FRANKFORT, KENTUCKY
DATE: Thursday, January 19, 2012

9:00 am
DAVID LEWIS HARRIS v SUSAN ELIZABETH HARRIS
Whether circuit court erred by granting three-year extension on domestic violence order.

9:45 am
PAULA B. BROWN v LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT
Whether circuit court erred by determining that the Civil Service Commission abused its discretion by excluding certain evidence.

10:30 am
BRYAN FULLER v JOANN BLAIR
Whether appellee was “owner” of dog within meaning of KRS 258.235.

11:15 am
STEVEN L. BESHEAR, IN HIS OFFICIAL CAPACITY v LOUISVILLE SOCCER ALLIANCE, INC.
Did trial court err by determining that the Executive Branches transfer of Charitable Gaming funds to the General Fund unconstitutional?

LOCATION: POWELL COUNTY CIRCUIT COURTROOM, COURTHOUSE, 525
WASHINGTON STREET, STANTON, KENTUCKY
DATE: Monday, January 30, 2012

11:00 am
BRITTANY ANNE CONLEY v JAMES B. BOWLING
Conley argues that the trial court erred by failing to grant her reasonable visitation rights and by granting her counsel’s motion to withdraw.

11:45 am
DELLA SUE WILLIAMS v DEPARTMENT OF HIGHWAYS TRANSPORTATION CABINET
MOR appeal from grant of summary judgment in condemnation suit where issue of ownership of property is contested on basis of adverse possession by one of cotenants. Issues are whether summary judgment is supported by the record and whether, in condemnation case for a small portion of land, ownership of the whole can be litigated or whether adverse possession can be applied to only part of a tract of land.

BLOG UPDATE: Some information on how we (I) do things behind the curtains of the Court Report

Michael Stevens — 2012-01-08T15:17:05-05:00

Talking to that "Man" behind the curtain.

Some have asked me what methods do I employ in preparing this blog.

Time. It takes time, but not all of my time and much less than you might imagine since I take advantage of many of the resources and materials prepared by others and simply convert, consolidate, and co-opt many useful sources of information available on the net.

System.

The AOC pages are my primary sources:

MINUTES: The minutes are prepared monthly for the Supreme Court and weekly for the Court of Appeals (these links are to pages where the minutes are indexed by year and month).

The minutes are multiple page ADOBE (tm) documents listing the decisions, orders, etc. from the respective appellate court with HOT LINKS to the published and non published decisions in full text and which are maintained at and by the AOC.
- The Supreme Court minutes are posted the third Thursday of each month when the SCOKY is in session and following their "court week".
  - The published and not to be published decisions are numbered sequentially from month to month for the entire year, starting anew the next calendar year.
  - Each numbered decision lists for each case, the name, action number, ruling (vacate, affirm, etc), the author of the opinion (if not a memorandum opinion), the dissenterts, the county of the original decision (unless from Workers Comp), and most importantly a HOT LINK to the actual decision which is maintained at the AOC in PDF format.
    - Other matters listed in the SCOKY Minutes include:
    - MDR's (Motions for Discretionary Review) grants and denials
    - Petitions for Rehearings - grants and denials
    - Court Orders
    - Motions to transfer rulings
    - Attorney/Judicial Disciplinary Matters (many with HOT LINKS to the order)
- The Court of Appeals Minutes are posted each Friday.
  - A sequential numbering system is used with links to the full-text of the decisions.
  - Orders (without hot links) re: petitions for rehearing, dismissals, corrections, etc.
- WHAT DO I DO?
  
  I try to post a link within a week to the minutes, and to make matters a little more useful I post a short synopsis (copied text from the actual decision) to give the reader some insight into the PUBLISHED cases, to include a link directly to the full text decision.
  
  I also do a "Tort Report" for the nonpublished decisions addressing civil issues on insurance, torts, procedure, etc. Workers Comp and Family law decisions can be located elsewhere at other sites:
  - WORKERS COMPENSATION LAW UPDATES, I RECOMMEND YOU GO TO THE COMP ED WEB SITE AT http://www.comped.net/.
  - FAMILY LAW UPDATES, I RECOMMEND YOU GO TO Diana Skaggs' Divorce Law Journal at http://www.divorcelawjournal.com
ARGUMENT CALENDARS: The Argument calendars are posted by year and month at the AOC with the links to the respective months posted/updated when the argument calendars are finalized and set. Although all the links may be HOT, not all calendars are final and many for the future are blank.
- Links
  - SCOKY
  - COA
- The calendars list the dates, times, locations, and case information (name, county, counsel, issues) for each scheduled argument. No links to the case information or the underlying order/opinion etc.
- SCOKY's arguments are available for real time web watching.
  However, they are not yet saved for furture watching, and you must watch the calendar for the time. Due to broadcasting/streaming delay, the start times are a few minutes off for the net observers.
- I tried capturing these for a while and cleaning them up a little but it was too hard to set up the time and schedule to "capture" them. I am thinking of simply asking for the DVD of each argument that I think would be interestings and post some selectively, but I am dependent upon AOC releasing them. This might even be useful for selected COA arguments. Click here for some samples, I tried back in 2009.
- BRIEFS!
  Appellate briefs for SCOKY are posted at the Northern Kentucky University, Salmon P. Chase College of Law ( Click here). Although, it looks as if COA briefs are posted also, I have not been successful in my searches for them. Any help would be appreciated.
- WHAT DO I DO?
  
  I try and post a link to the actual calendar with a short summary of the calendar extracted for ease of review listing dates and times, location, case name and ISSUES.

This is enough for one post. More later addressing the "Monthly Summaries" of Published Decisions by SCOKY and COA (which can be a month or so after the minutes which is why I do the brief but borrowed synopsis of the published decisions), extracts of "Causes of Action" and "Standards of Review" culled from various decisions, Press Releases, etc.

For the moment, I have leaned away from too much opinions of my own on these pages, but sometimes I just can't help myself.

Again, I hope all of you have enjoyed this service and have found it useful in your practice.

Michael L. Stevens
Attorney at Law
Isaacs and Isaacs, PSC
900 Cherokee Road
Louisville, KY 40204

(502)458-1000

2011 SCOKY and COA Combined Minutes Binder

Michael Stevens — 2012-01-07T13:13:07-05:00

I have combined all the Kentucky Supreme Court Minutes AND the Court of Appeals Minutes into two separate and searchable PDF files.

Click on this link to Download 2011_SC_MIN_Binder.

Click on this link to Download 2011_COA_Min_Binder.

ATTOREY DISCIPLINE FOR SEPTEMBER 2011 (from SCOKY Monthly Summaries)

Michael Stevens — 2012-01-07T12:59:01-05:00

VI. ATTORNEY DISCIPLINE

A. Kentucky Bar Association v. David L. Helmers

2011-SC-000106-KB September 22, 2011

All sitting. All concur. The Court permanently disbarred Respondent David L. Helmers from the practice of law in this Commonwealth for violations of SCR 3.130-1.4(b), SCR 3.130-1.8(g), SCR 3.130-2.1, SCR 3.130-5.2(a), SCR 3.130-8.3(a), and SCR 3.130-8.3(c). These ethical violations occurred while Respondent negotiated settlements with clients involved in a class action lawsuit against a drug manufacturer. While Respondent was relatively new to the practice of law and was acting under the direction of senior attorneys when these violations occurred, the Court found that these violations were so basic and egregious that Respondent should have known that his course of conduct was unethical.

B. Kentucky Bar Association v. Fielding E. Ballard III

2011-SC-000213-KB September 22, 2011

Opinion and Order Suspending Respondent from the Practice of Law. All sitting; all concur. Ballard was suspended from the practice of law for a total of 120 days for his conduct in two consolidated KBA case files. At all relevant times, Ballard was the Commonwealth’s Attorney for the 53rd Judicial Circuit. In the first KBA file, Ballard represented a creditor in a civil suit against a debtor. The debtor claimed partial payment of the debt to the creditor’s manager. At the same time, Ballard obtained an indictment against the creditor’s manager for possession of two forged checks on the creditor’s account. The Supreme Court held that a 60-day suspension was warranted for the conflict of interest.

In the second KBA file, Ballard mishandled three felony cases – including two murder cases – in which he was appointed special prosecutor by the Attorney General. Ballard missed court appearances and other deadlines, resulting in all three cases being dismissed with prejudice. He also failed to return the case files to the Attorney General after his appointments were rescinded. The Supreme Court held that a 60-day suspension was warranted, with the two suspensions to be served consecutively for a total suspension of 120 days.

C. Kentucky Bar Association v. Ruth Ann Sebastian

2011-SC-000311-KB September 22, 2011

All sitting; all concur. The Court adopted the recommendation of the trial commissioner that Sebastian be suspended from the practice of law for 270 days. The matter stems from three separate case files, which were consolidated. Sebastian violated SCR 3.130-1.3, -16(d), -1.9(a), -8.1(b), and -3.4(c).

D. Kentucky Bar Association v. Terence K. Mulliken

2011-SC-000229-KB September 22, 2011

All sitting; all concur. Respondent was convicted of promoting contraband in the first degree and conspiracy to trafficking in a controlled substance in the second degree in 2004 due to the convictions he was temporarily suspended from the practice of law. The Trial Commissioner concluded that Mulliken had violated the former SCR 3.130-8.3(b) by his conviction in the Pike Circuit Court. The Trial Commissioner concluded that he should remain suspended until he is fully released from probation and parole, and for five years thereafter. Further, it was recommended that Mulliken be evaluated by an appropriate substance abuse professional and also be required to enter into a five-year agreement with the Kentucky Lawyer Assistance Program (KYLAP). Finally, in light of Mulliken's ongoing seven-year suspension and his employment record, the Trial Commissioner recommended the five-year suspension be probated upon his release from probation and parole and on the condition that he follow the requirements set forth in a KYLAP contract.

E. Kentucky Bar Association v. David R. Schott

2011-SC-000261-KB September 22, 2011

All sitting; all concur. The Court ordered Respondent permanently disbarred for multiple ethical violations stemming from real estate transactions with a client. Additionally Respondent has a history of disciplinary action and failed to respond to all attempts to communicate regarding his multiple violations.

F. Kentucky Bar Association v. Michael Ray McDonner

2011-SC-000350-KB September 22, 2011

All sitting; all concur. Respondent was suspended from the practice of law for failure to comply with CLE requirements. Respondent continued to engage clients and failed in two cases to adequately represent said clients. Court adopts the recommendation of the Board to suspend Respondent for 60 days and require him to complete the EPEP offered by the KBA.

G. Kentucky Bar Association v. Donald L. Richardson

2011-SC-000353-KB September 22, 2011

All sitting; all concur. Respondent failed to file a mortgage for three years and when he filed it with the County Clerk it contained a forged notary clause. Court adopted the recommendation of the trial commissioner to suspend Respondent for 5 years

September 2011 SCOKY MONTHLY CASE SUMMARY REPORT

Michael Stevens — 2012-01-07T12:55:04-05:00

Published Opinions Kentucky Supreme Court August 2011

The case summary report is created by the staff of the Supreme Court of Kentucky for the convenience of the bench and bar. Every effort is made to present accurate information, including status of the case, as of the date of posting. The most recent status for cases can be found on the Supreme Court, Court of Appeals, or other legal research websites. Before citing any case, the user should always read the entire opinion and ensure that the case is final. CR 76.28.

January 2011
Febrary 2011 - none
March 2011
April 2011
May 2011
June 2011
July 2011 - none
August 2011
September 2011

PUBLISHED OPINIONS KENTUCKY SUPREME COURT

September 2011

I. CRIMINAL LAW

A. Kenneth Jones v. Commonwealth of Kentucky

2009-SC-000221-MR September 22, 2011

Opinion of the Court by Justice Schroder. All sitting; all concur. The defendant was found guilty but mentally ill of murder for shooting a neighbor on the neighbor’s property. The defendant argued at trial that he shot the neighbor in self defense. Over defense objection, the Commonwealth received a “no duty to retreat” jury instruction on behalf of the victim. The instruction was based on KRS 503.055(3), and stated that a person who is not engaged in an unlawful activity and has a right to be in a place has no duty to retreat and has the right to stand his ground and meet force with force, including deadly force, if necessary to prevent death or great bodily harm or to prevent a felony involving the use of force.

The Supreme Court reversed the conviction, holding that KRS Chapter 503 (General Principles of Justification), when viewed as a whole, was meant to apply to the conduct of the person who is subject to criminal prosecution, and not to the conduct of the victim. Without deciding whether a defendant would be entitled to a “no duty to retreat” instruction, the Court held that the instruction was erroneous when given on behalf of the victim. The Supreme Court also held that the trial court did not abuse its discretion in excluding evidence about the defendant’s delusions while he was in jail, and that it was improper for the prosecutor to ask the defendant to comment on the veracity of certain witnesses. The Court reversed and remanded for a new trial.

B. Scott Richard Stanton v. Commonwealth of Kentucky

2010-SC-000102-MR September 22, 2011

Opinion of the Court by Justice Abramson. All sitting. Following the denial of his motion to suppress his confession, the defendant pled guilty to charges that he raped and sodomized his stepson. Upholding the trial court’s suppression ruling, the Supreme Court held that the defendant’s confession was not coerced by a social worker’s accurately informing him that unless he cooperated with investigators the defendant’s two other children could be removed from the home. Chief Justice Minton and Justices Cunningham, Noble, Scott and Venters concurred. Justice Schroder concurred in result only.

C. Ronnie D. Walker v. Commonwealth of Kentucky

2010-SC-000409-MR September 22, 2011

Opinion of the Court by Justice Abramson. All sitting; all concur. Defendant was convicted, among other things, of burglary and murder for having entered his ex-girlfriend’s home where he beat and strangled to death the ex-girlfriend’s boyfriend. Upholding the conviction, the Supreme Court held (1) that the introduction into evidence of the defendant’s entire interrogation video, including the interrogator’s questions and comments, did not violate the evidence rules and was not unduly prejudicial; (2) that the trial court’s opening remarks concerning how a witness’s credibility might be assessed did not amount to palpable error; and (3) that the burglary instruction was not ambiguous so as to call into question the jury’s unanimity.

D. Linvil Curtis Turpin v. Commonwealth of Kentucky

2010-SC-000550-MR September 22, 2011

Opinion of the Court by Justice Abramson. All sitting; all concur. Defendant was convicted of being a felon in possession of a firearm and was found to be a first-degree persistent felony offender. Because of his PFO status, he was given an enhanced sentence of twenty years. Upholding the sentence, the Supreme Court held that a twenty-year sentence for a third felony offense, even if all the offenses were class-D felonies and non-violent, did not violate the state and federal constitutional guarantees against cruel and unusual punishment.

E. Thomas York, Sr. v. Commonwealth of Kentucky

2010-SC-000240-MR September 22, 2011

Opinion of the Court by Justice Cunningham. All sitting; all concur. Particular characteristics of a person's voice - such as tone, accent, or speech impediment - are physical characteristics. Therefore, the Fifth Amendment is not implicated where a defendant is required to demonstrate his voice for the jury so that a witness may make a courtroom identification. Any possible prejudice is further reduced where the defendant utters an innocuous phrase, rather than repeating words alleged to have been spoken by the defendant previously.

F. Reginald Lamont Whittle v. Commonwealth of Kentucky

2009-SC-000787-MR September 22, 2011

Opinion of the Court by Justice Noble. Whittle was convicted of possession of marijuana, trafficking in cocaine, tampering with physical evidence, and being a first-degree persistent felony offender.

The police observed Whittle running away from them and tossing a bag containing white powder onto the sidewalk. The white powder was later determined by the state crime lab to be cocaine. The chemist at the state crime lab who authored the report identifying the powder as cocaine was unable to testify at trial because he was ill, and so the director of the lab testified in his place. The director read from and discussed the report, which was then admitted into evidence.

Applying the recent U.S. Supreme Court cases Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) and Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011), this Court held that Whittle was entitled to confront the chemist who wrote the report. The violation of Whittle’s right to confrontation was not harmless error with respect to the charges of trafficking in cocaine and tampering with physical evidence, but it was harmless with respect to the charge of possession of marijuana. Accordingly, the convictions for trafficking and tampering were reversed, and the conviction for possession of marijuana was affirmed. Because the two felony convictions were reversed, the PFO conviction was also vacated. Chief Justice Minton and Justices Abramson, Cunningham, Scott and Venters concurred. Justice Schroder concurred in result only.

G. James Demetrius Mullins v. Commonwealth of Kentucky

2010-SC-000263-MR September 22, 2011

Opinion of the Court by Justice Noble. All sitting, all concur. Mullins was convicted of murder, tampering with physical evidence, and being a persistent felony offender in the first degree. The charges arose from the shooting death of a man who went to a house to buy marijuana. Mullins admitted that he had been on the porch of the house when the shooting occurred but denied any involvement.

Mullins’s conviction for tampering with physical evidence was based on evidence that he removed the murder weapon from the crime scene. There was evidence that Mullins was the shooter, that he got into a friend’s car immediately after the shooting, that he was seen with a shiny object in his hand when he got in the car, and that a police search at the scene several months after the shooting failed to turn up a gun. But this evidence was not enough to support a charge of tampering under KRS 524.100 without evidence of some additional act demonstrating an intent to conceal. The statute requires that a defendant destroy, mutilate, conceal, remove, or alter physical evidence with intent to impair its availability. Simply leaving the crime scene with the weapon does not show an intent to impair its availability; instead, it is reasonable to infer that the defendant’s primary intent was to get himself away from the scene. Accordingly, the Court reversed Mullins’s conviction for tampering.

Mullins’s other assignments of error were without merit. The conviction for murder was affirmed, and the case was remanded to Fayette Circuit Court.

H. Larry Ordway v. Commonwealth of Kentucky

2009-SC-000479-MR September 22, 2011

Opinion of the Court. All sitting. Following the execution of a search warrant at defendant’s girlfriend’s apartment, police found sufficient evidence to link defendant to a string of robberies, burglaries, and thefts. At trial, defendant was convicted of three counts of first-degree robbery, ten counts of third-degree burglary, six counts of TBUT over $300, receiving stolen property and PFO I, and was sentenced to a total of 70 years. On appeal, defendant argued that the Commonwealth was collaterally estopped from litigating the issue of whether he was armed during the robberies because he was acquitted on the charge of possession of a handgun by a convicted felon; that his constitutional rights were violated by the search of his girlfriend’s apartment; that the jury instructions on nine counts of burglary in the third degree were improper; and that he was erroneously convicted of two thefts arising from a single offense. The Supreme Court held that collateral estoppel did not bar defendant’s prosecution for robbery and that defendant did not have standing to contest the search of his girlfriend’s apartment. However, with respect to the jury instructions, the Court held that giving identical jury instructions on nine counts of third degree burglary were improper, requiring reversal on those convictions. The Court also vacated one of defendant’s theft convictions after determining that he was erroneously convicted of two thefts arising from a single offense. Chief Justice Minton and Justices Noble, Schroder and Venters concurred. Justice Abramson concurred in result only. Justice Cunningham and Justice Scott dissented.

II. WRITS

A. Commonwealth of Kentucky v. Angela Peters

2010-SC-000074-DG September 22, 2011

Opinion of the Court by Justice Schroder. All sitting; all concur. The defendant was charged with DUI, first offense in district court. The prosecutor objected to producing the complaining witness (the arresting officer) for a pretrial conference. The district court entered an order requiring the Commonwealth to produce the arresting officer at a pretrial conference to be interviewed by the defense attorney. The Commonwealth requested a writ of prohibition from the circuit court, which was granted. The Court of Appeals overturned the writ. The Supreme Court then granted discretionary review.

The Supreme Court reversed the Court of Appeals and reinstated the circuit court’s writ of prohibition. The Court first held there would be no adequate remedy on appeal, and that the case falls in the “special cases” subcategory of writ where correction of the error is necessary in the interest of the orderly administration of justice. Upon review of the various rules dealing with criminal pretrial procedure, including RCr 8.03, RCr 7.24, and RCr 7.10 through RCr 7.20, the Court concluded that the district court acted erroneously in requiring the arresting officer to be interviewed at the pretrial conference. The Court noted, however, that given the wide discretion

B. Marcus S. Minix, Sr. v. Larry Roberts, Sherry Collier, And Marcus Minis, Jr. -

2010-SC-000583-MR September 22, 2011

Opinion of the Court by Justice Venters. Justice Noble not sitting. The Court of Appeals denied Appellant’s petition for a writ of prohibition to bar a county attorney’s operation of a mediation program to resolve criminal complaints prior to filing of formal charges. On appeal, the Supreme Court held: (1) denial of the petition was proper because a writ of prohibition may be issued only against judicial officers, and neither the county attorney nor his program’s mediator was a judicial officer; (2) the county attorney’s mediation program did not constitute an action of the district court because the district court’s jurisdiction over persons accused of a criminal offense does not arise until the issuance of a warrant or summons, or presentment of defendant to the court following a warrantless arrest; (3) original subject matter jurisdiction over actions for injunctive relief under CR 65 or actions for declaration of rights under KRS 418.040 lies within the circuit court, not the Court of Appeals. Chief Justice Minton and Justices Abramson, Cunningham and Schroder concurred. Justice Scott concurred in result only.

III. FAMILY LAW

A. Saeid Shafizadeh v. Honorable Jerry J. Bowles, Judge Jefferson Circuit

Family Court

2010-SC-000747-MR September 22, 2011

Opinion of the Court by Justice Cunningham. All sitting; all concur. Supreme Court affirmed the Court of Appeals’ denial of Appellant’s petition for a writ of prohibition. Pursuant to their divorce decree, Appellant and his ex-wife had joint custody of their children. Appellant’s wife sought court approval to relocate with the children outside of the jurisdiction. Appellant claimed that the relocation constituted a modification of custody. Supreme Court held that a joint custodial parent’s relocation with children outside the jurisdiction is properly construed as a modification of timesharing, not custody, as long as the other parent’s decision making authority for the children is unaltered.

B. Suzanne Anderson v. Joseph Johnson

2010-SC-000646-DGE September 22, 2011

Opinion of the Court by Justice Noble. All sitting. The Franklin Circuit Family Court denied Anderson’s motion for a change in timesharing of the parties’ minor child to allow her to relocate with the child. The Court of Appeals affirmed the denial. Anderson argues that the family court’s order cannot stand because no findings of fact were made. Johnson responds that no findings of fact are required for a motion pursuant to CR 52.01, and he further responds that Anderson has failed to preserve any issues for appeal.

This Court held that, although a motion for modification of timesharing or visitation is termed a “motion,” it is actually an “action[] tried upon the facts without a jury” under CR 52.01. Thus, specific findings of fact and separate conclusions of law are required.

This Court further held that Anderson was not required under CR 52.04 to file a motion with the family court requesting findings of fact, because the family court made no findings of fact at all. CR 52.04 applies if the court makes a good faith effort to make findings of fact but misses some key fact in its findings. In such a situation, the litigant must assist the court by requesting that specific finding. In this case, the family court made no findings of fact, and so CR 52.04 does not apply and Anderson was properly before this Court. Chief Justice Minton and Justices Cunningham, Schroder and Scott concurred. Justices Abramson and Venters concurred in result only.

IV. BOARD OF CLAIMS

A. Patricia Greene, et al. v. Commonwealth of Kentucky, Administrative Office of the Courts; Honorable Jerry Winchester, Judge of McCreary Circuit Court; Charles E. King; and Kentucky Board of Claims

AND

Commonwealth of Kentucky, Administrative Office of the Courts v. Patricia Greene, et al.

2008-SC-000783-DG

2007-SC-000511-DG September 22, 2011

Opinion of the Court by Special Justice Rhoads. Chief Justice Minton and Justice Abramson not sitting. King was a Master Commissioner appointed for a four year term; he was not reappointed per statute but continued to serve in that capacity for an additional ten years. During the course of his “term” as master commissioner he criminally withheld over $300,000.00 in funds from judicial sales. Action was brought in the Board of Claims by heirs of one such sale against King, Judge Winchester (the appointing judge) and the Administrative Office of the Courts. The Board of Claims dismissed for lack of jurisdiction and the Court of Appeals affirmed on other grounds. The Court held that the Board of Claims Act authorizes suit against the all branches of the Commonwealth within the Board of Claims for negligent ministerial acts of state officers, agents and employees. Under this finding King’s acts do not meet the Act because they were intentional, whether AOC is the employer of King is moot and AOC is not the employer of Judge Winchester who is an elected constitutional officer so they are not proper parties. However, Judge Winchester failed to perform the ministerial act of reappointing King as master commissioner and verifying his bond requirement and so the claimants may bring an action in the Board of Claims to determine whether the Appellants suffered damages as a proximate cause of any alleged negligence in Judge Winchester’s ministerial duties. Allowing such a claim in the Board of Claims does not diminish Judge Winchester’s judicial immunity. Justices Schroder, Scott and Venters concurred. Justice Noble dissented by separate opinion, in which Justices Cunningham and Special Justice Connolly joined.

V. LIENS

A. The Dreamers, LLC; Willie M. Neal, Jr.; and Glenda Hoffman v.

Don’s Lumber & Hardware, Inc.

2010-SC-000227-DG September 22, 2011

Opinion of the Court by Justice Noble. All sitting; all concur. The Dreamers, LLC (“Dreamers”) allegedly failed to pay Don’s Lumber for the materials it used to build a house. Don’s Lumber obtained summary judgment against Dreamers for the debt, and the house was ordered sold. After making several unsuccessful procedural efforts to delay the sale, on the day of the sale Dreamers paid the full judgment amount of $48,309.95 to Don’s Lumber. Dreamers continued to pursue a direct appeal of the trial court’s order. Don’s Lumber filed a motion to dismiss the appeal as moot because the judgment had been paid. The Court of Appeals entered an order dismissing the appeal.

This Court granted discretionary review to consider whether a party must specifically reserve a right to appeal when paying a judgment in full in lieu of a supersedeas bond if the appeal is to continue. Although payment of a judgment can extinguish the right of appeal where the payment is part of a settlement or compromise, there must be clear and decisive evidence of such an agreement before a party will be deemed to have waived his right of appeal. Here, there was not clear and decisive evidence of waiver, and so the Court of Appeals erred in dismissing Dreamers’ appeal.

VI. ATTORNEY DISCIPLINE

A. Kentucky Bar Association v. David L. Helmers

2011-SC-000106-KB September 22, 2011

B. Kentucky Bar Association v. Fielding E. Ballard III

2011-SC-000213-KB September 22, 2011

C. Kentucky Bar Association v. Ruth Ann Sebastian

2011-SC-000311-KB September 22, 2011

D. Kentucky Bar Association v. Terence K. Mulliken

2011-SC-000229-KB September 22, 2011

E. Kentucky Bar Association v. David R. Schott

2011-SC-000261-KB September 22, 2011

F. Kentucky Bar Association v. Michael Ray McDonner

2011-SC-000350-KB September 22, 2011

G. Kentucky Bar Association v. Donald L. Richardson

2011-SC-000353-KB September 22, 2011