Vol. 2003/26       

• KENTUCKY APPELLATE DECISIONS 
  FOR August 11-18, 2003
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• Kentucky SUPREME COURT Decisions 
  PUBLISHED - None
  

• Kentucky SUPREME COURT Decisions
  NOT TO BE PUBLISHED - None
   

• Kentucky COURT OF APPEALS Decisions
  PUBLISHED - August 15 , 2003
  

  2001-CA-001467.pdf Size: 34 kb Date: 8/13/2003 Reynolds v. Com. Criminal CA affirmed jury verdict finding Defendant guilty of Escape 2nd and PFO 1st and sentencing him to 10 years to serve in prison.   Reynolds was granted work release after receiving a 1 year sentence for a misdemeanor drug conviction.  After returning to his detention center some 14 hours after his scheduled return time, Reynolds was charged with the above offenses.  He was convicted following a jury trial.  On appeal, Reynolds argued he was entitled to a directed verdict of acquittal because the Commonwealth failed to present any evidence of the culpable mens rea, or intent, not to return to prison.  Reynold's defense at trial appeared to blame a combination of alcohol and bad weather for his failure to return to the detention center. "The Penal Code statutes creating the offense of felony escape do not indicate that the accused’s mental state is a material element of the offense, but neither do they dispense with the requirement. Generally, a culpable mental state is required for offenses under the Penal Code. See KRS 501.030(2).  Moreover, even though no culpable mental state is expressly designated in a criminal statute, it may be required if the proscribed conduct necessarily involves a culpable mental state.  See KRS 501.040. The Penal Code provides for and defines four types of mental states: intentional, knowing, wanton and reckless. KRS 501.020. . . . KRS 501.020(2) states that '[a] person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause that result or to engage in that conduct.'  It is well established that mens rea and intent may be established by or inferred from circumstantial evidence. See, e.g., Stopher v. Commonwealth, Ky., 57 S.W.3d 787, 802 (2001); Harper v. Commonwealth, Ky., 43 S.W.3d 261, 265 (2001). Circumstantial evidence is sufficient to support a criminal conviction." The CA ultimately held there was sufficient evidence to infer that Reynolds did not intend to return to jail at a time authorized by his work release.  Therefore, the TC did not err in refusing to direct a verdict of acquittal in favor of the Defendant.   2002-CA-001798.pdf Size: 25 kb Date: 8/13/2003 Educational Training Systems, Inc. V. Monroe Guaranty Ins. Co. Insurance, Duty to Defend Insured's intentional acts did not qualify him/it for coverage and a defense under insurance policy.  CA affirmed denial of coverage. This was a duty to defend a trademark infringement claim involving the use of the name "Weikel" as part of a real estate school.  Earl Weikel  claimed he could use his own surname, but ETS which ran A-Pass Weikel Institute thought differently after Weikel Academy of Realty, Inc. opened its doors.  Earl had sent a letter stating "I believe you know that a competing school . . .  real estate school yet to be established, would profit greatly with WEIKEL as part of it's name." The circuit court concluded that Weikel Academy acted with intent to confuse its service mark, with intent to harm, and that therefore an exclusion in the Monroe policy operated to relieve Monroe of its duty to defend and its obligation to provide coverage.  ETS appeals, arguing that Earl Weikel acted under the mistaken impression that he had an unfettered right to use his own surname, and that therefore he did not act with intent to violate the law.

• Kentucky COURT OF APPEALS Decisions
  NOT TO BE PUBLISHED - August 15,  2003
    

  2001-CA-000056.pdf Size: 28 kb Date: 8/13/2003	Convenient Industries of America, Inc v. Rosen Prejudgment Interest, Costs Third appeal involving the terms of a 1966 lease agreement.  Most recent decision in circuit award appellee Rosen $168,543.80. The sole issue for CA's  review is whether the trial court's most recent judgment is consistent with the previous decisions and directives of this Court. Convenient argues that the trial court erred in awarding pre-judgment interest; in awarding post-judgment interest from December 21, 1994; and in granting Rosen's motion for costs. CA concluded trial court's judgment correctly complies with the directives contained in this Court's two previous opinions with one exception--the date as to which Rosen is entitled to post-judgment interest, and therefore reversed only that portion of the judgment since conflicted with CA's earlier mandate as to setting post-judgment interest which was to run from the entry of a judgment consistent with the CA's 1999 decision and not go back to 1994. The first thing to be cleared up was that the parties were bound by the law of the case such that a particular issue between the same parties in the same case--whether "right or wrong"--is binding on the parties and the trial court. Martin v. Frasure, Ky., 352 S.W.2d 817, 818 (1962). Comment:  Nice little recap of post-judgment vs. pre-judgment interest.
  2001-CA-000711.pdf Size: 32 kb Date: 8/13/2003	Morris v.  Com. Criminal CA affirmed Defendant's conviction and 1 year sentence for 1st Degree Possession of a Controlled Substance.  Morris was not entitled to a directed verdict as there was sufficient evidence of constructive possession.  Chain of custody was sufficiently established.  Prosecutor's closing argument did not warrant reversal.
  2001-CA-001385.pdf Size: 56 kb Date: 8/13/2003	Grubbs v. Kentucky Farm Bureau Mut. Ins. Co. Jurisdiction, Dismissal Under CR 12.02 CA affirmed TC's dismissal of plaintiff's claims for for want of jurisdiction, insufficiency of process and insufficiency of service of process.  First, plaintiff failed to personally serve minor's resident guardian or committee or her mother or father; minor signing service by registered mail does not qualify for personal service.  Second, "next friend" status does not work for jurisdiction against defendant but only for filing suit for plaintiff.  Third, counsel's appearance raising jurisdictional issues does not constitute an appearance for jurisdiction of defendant.  Fourth, defendant's actual knowledge of defects in service do not cure the defects. Note:  This case started out in small claims court, and was moved up to circuit court after insurer provided a defense and counsel to defend.
  2001-CA-002043.pdf Size: 45 kb Date: 8/13/2003	Jarvio v. McCarte Maintenance Court of Appeals affirms trial court's denial of husband's Motion to Alter, Amend or Vacate order regarding maitenance.  Court of Appeals relies on Dame v. Dame, Ky., 628 S.W.2d 625 (1982) in holding it is a well established principle of law that a divorce decree awarding a fixed sum for maintenance, payable either in one distribution or in installments, is not modifiable.  Court refuses to accept husbands arguments based on Low v. Low, Ky., 777 S.W.2d 936 (1989).
  2001-CA-002150.pdf Size: 27 kb Date: 8/13/2003	Goben v. Com. Criminal CA vacated and remanded TC's denial of Goben's RCr 11.42 motion alleging ineffective assistance of counsel.  Case remanded to conduct evidentiary hearing because the record did not conclusively refute Goben's allegations.  Ineffective claim centered around counsel's failure to subpoena key witness.
  2001-CA-002290.pdf Size: 23 kb Date: 8/13/2003	Ramsey v. Com. Criminal CA affirmed TC's denial of Ramsey's pro se motion to vacate pursuant to CR 60.02.
  2001-CA-002705.pdf Size: 27 kb Date: 8/13/2003	King v. Com. Criminal CA affirmed TC's denial of King's petitions for post-conviction relief pursuant to RCr 11.42 and CR 60.02.
  2001-CA-002712.pdf Size: 23 kb Date: 8/13/2003	Smith v. Com. Criminal CA vacated and remanded judgment following conviction for 1st Degree Trafficking in Controlled Substance.  Defendant alleged Brady v. Maryland violation due to court’s refusal to grant his discovery request concerning the identity of witnesses who may have been present at the scene of the alleged crime.  CA stated the issue could not be resolved by looking at the record, and therefore, remanded for TC to conduct evidentiary hearing to determine whether exculpatory evidence would entitle Defendant to new trial. Interestingly, the CA acknowledged its decision was contrary to the holding in Commonwealth v. Barber, Ky.App., 643 S.W.2d 592 (1982).  However, the CA based its ruling on the Kentucky Supreme Court's decision in Lowe v. Commonwealth, Ky., 712 S.W.2d 944 (1986), and stated that Barber was impliedly overruled to the extent it conflicted with the decision in Lowe. Comment:  This opinion is nothing more than an admonition to the Trial Court to prepare a better record.  Undoubtedly, the Trial Court will find there was no exculpatory evidence withheld by the prosecution that warrants a new trial.  Nevertheless, by remanding for an evidentiary hearing, the CA sends a message concerning record preparation.
  2002-CA-000124.pdf Size: 30 kb Date: 8/13/2003	Commonwealth Aluminum Corp v. Krahwinkel Commonwealth Aluminum Corp v. Krahwinkel Premises Liability - Workers Compensation  Commonwealth Aluminum Corporation (Owner) contracted with Industrial Technology (Independent Contractor) to have a storage tank relocated from a first floor location, through a hole in the floor, to a basement location.  Owner required IC to furnish the necessary safety equipment for the job and made it IC's responsibility to follow safety rules and OSHA regulations.  Krahwinkel (IC Employee) was injured when fell through the hole.  The opinion gives the impression that this may have resulted from slipping on oil on the floor around the hole.  It was clear that there was no temporary guardrail around the hole, which expert testimony indicated was required by OSHA.  It was also clear that IC Employee was not wearing a safety belt/harness, although he offered an explanation for not doing so.  IC Employee received workers' compensation benefits from IC, and IC intervened to seek recovery of benefits paid and payable but was dismissed prior to trial pursuant to the terms of a settlement of the workers' compensation claim.  The jury returned a verdict for IC Employee against Owner with an apportionment of liability based on comparative negligence.    Owner appealed arguing IC employee was not entitled to a double recovery to the extent the damages awarded duplicated items of workers' compensation benefits paid for which Owner was entitled to reimbursement.  Owner also argued that it was the IC's responsibility to provide for the safety of its employees, including IC Employee and that the dangerous condition that caused the injury was open and obvious such that Owner owed no duty IC Employee from which liability could attach.  IC Employee cross-appealed arguing entitlement to a negligence per se jury instruction based on violation of the OSHA regulation by Owner and/or IC Employer.   The Court of Appeals ruled the hole was an open and obvious danger but that the oil on the floor, which contributed to the accident, was not.  However, the Court then proceeded to follow a line of cases which hold that a company hiring an independent contractor may only be held liable in cases where the work being done by the independent contractor is a nuisance or inherently dangerous but that, even in those cases, the liability of the company hiring the independent contractor would not extend to employees of the independent contractor.  Given that the work being done by IC was neither nuisance nor inherently dangerous, the Court held the Owner could not be found liable to IC Employee and reversed.  The issues of TTD double recovery and IC Employee's right to a negligence per se instruction were not decided (having become moot).   Judge Johnson filed a scathing dissent criticizing the Majority Opinion as procedurally improper being based on an issue that was not preserved by Owner nor briefed or argued before the Court of Appeals and encouraged the granting of discretionary review if sought.    Comments:  If Owner did argue before the trial court and on appeal that, as a matter of law, it could not be held liable for the injuries sustained by IC's employees under these facts, how was the issue not preserved for consideration on appeal - even if the basis in law for the ultimate decision differed from that argued by Owner?  The dissenting opinion does not charge that the majority's reasoning was incorrect, only that it was procedurally improper for that reasoning to be applied in this case.  This case holds the potential for discussion of multiple related issues to be addressed by the Supreme Court should discretionary review be granted and that it be decided that Owner may be held liable to IC Employee. If Owner could be held liable for the injuries to IC Employee, would not KRS 342.690(1) limit its liability to the amount of workers' compensation benefits payable to IC Employee pursuant to KRS 342.690(1) as an "up-the-ladder" employer/contractor of IC Employee pursuant to KRS 342.610(2)(b) (provided that affirmative defense was plead below)?  If Owner could be held liable for the injuries to IC Employee would its liability not be exclusive of the compensation IC Employee actually received from IC prior to judgment pursuant to KRS 342.700(1) for which the right of recovery actually rests with the IC or its workers' compensation carrier pursuant to KRS 342.700(1) (ie. reimbursable from the judgment payable), consistent with the reasoning in AIK Selective Self Ins. Fund v. Bush, Ky., 74 S.W.3d 251 (2002)?  If Owner could be held liable to IC Employee, would IC Employee be entitled to a negligence per se instruction based on an OSHA violation under the reasoning of Teal v. E.I. DuPont de Nemours and Company, 728 F.2d 799 (6th Cir. 1984), a Tennessee case discussed in Carman v. Dunaway Timber Co. Inc., Ky., 949 S.W.2d 569 (1997)(holding employees are protected by KOSHA and the plaintiff, who was not employed by defendant, was not entitled to negligence per se instruction based on KOSHA violation).  TGH
  2002-CA-000206.pdf Size: 23 kb Date: 8/13/2003	Fancher v. Com. Criminal CA affirmed TC's denial of Defendant's pro se motion to obtain free copies of his court records.
  2002-CA-000259.pdf Size: 30 kb Date: 8/13/2003	Carpenter v. Com. Criminal CA affirmed TC's denial of Defendant's pro se CR 60.02 motion for modification or correction of sentence.  TC properly denied motion without appointing counsel or conducting an evidentiary hearing.
  2002-CA-000487.pdf Size: 26 kb Date: 8/13/2003	Martin v. Kentucky Board of Medical Licensure Administrative Law CA affirmed TC's denial of costs in open records request.
  2002-CA-000510.pdf Size: 25 kb Date: 8/13/2003	Thomas v. Com. Criminal CA affirmed TC's denial of Defendant's RCr 11.42 motion to vacate alleging ineffective assistance of counsel.
  2002-CA-000683.pdf Size: 32 kb Date: 8/13/2003	Whitlow v. Com. Criminal CA affirmed Circuit Court's order revoking Defendant's probation.  Circuit Court did not violate Whitlow’s due process rights by revoking his probation even though Defendant did not receive a written copy of the conditions of probation as mandated by KRS 533.030(5).
  2002-CA-000816.pdf Size: 21 kb Date: 8/13/2003	Nunn v. Turner Real Property, Easements A fairly unremarkable opinion about maintenance of an easement, ultimately holding that the t rial court did not abuse its discretion by denying motion for relief under CR 60.02.
  2002-CA-000877.pdf Size: 20 kb Date: 8/13/2003	Lyndon Property Ins. Co. v. City of Stanford Intervention, Post-Judgment CA affirmed insurer's post-judgment motion to intervene on surety bond it had provided to indemnify contractor as not timely under CR 24.  Judge did not abuse discretion.
  2002-CA-000923.pdf Size: 22 kb Date: 8/13/2003	Nicholas v. Com. Criminal CA affirmed TC's denial of pro se Defendant's RCr 11.42 motion to vacate without an evidentiary hearing.
  2002-CA-001191.pdf Size: 25 kb Date: 8/13/2003	Rodriguez v. Kentucky Farm Bureau Mut. Ins. Co. Appeals, Experts, PIP Assignments Although this is a case based on Plaintiff's allegation of KFB's wrongful denial of PIP benefits, the Opinion from the Court is a lesson on the right and wrong ways to file and argue a case on appeal. Lesson #1:  If you haven't presented an issue in your Pre-Hearing Statement, then it can't be argued in your brief. Lesson #2:  If the trial court record does not reflect that an issue is preserved for appeal, then the Court of Appeals cannot consider the unpreserved issue. Lesson #3:  If your Brief does not contain at the beginning of the argument as statement with reference to the record showing where the issue is preserved for appeal, then those issues may not be considered by the Court.  CR 76.12(4)(c)(v). **Note:  I forgot to include this in one of my briefs - my solution was to file a Motion for Leave of Court to File an Amended Brief.  In the Motion I explained what I forgot to include and why it was important and attached 5 copies of the Amended Brief to my Motion.  My Motion was granted, the new Briefs were entered into the record and the original briefs were returned to me. Lesson #4:  Unless an Order includes specific finality language, a court order which adjudicates less than all of the outstanding claims is interlocutory and subject to revision at any time before the entry of judgment.  A subsequent judgment which adjudicates the remaining claims is deemed to readjudicate finality as of that date and in the same terms all prior  interlocutory orders and judgments determining claims which are not specifically disposed of in such final judgment.  CR 54.02 (1) & (2).
  2002-CA-001324.pdf Size: 19 kb Date: 8/13/2003	Stokes v. Com. Criminal CA affirmed TC's denial of pro se Defendant's motions for post-trial relief pursuant to RCr 11.42 and CR 60.02.
  2002-CA-001361.pdf Size: 24 kb Date: 8/13/2003	Looney v. Com. Criminal CA affirmed Defendant's convictions for 1st Degree Rape and Use of a Minor in a Sexual Performance.  There was sufficient evidence presented to support the verdict.  The Court's ruling concerning the admissibility of photographs did not compromise the Defendant's ability to present his case.  No prejudice resulted from the acknowledged bias of an alternate juror against a potential defense witness.
  2002-CA-001462.pdf Size: 17 kb Date: 8/13/2003	Tarter v. Com. Criminal CA affirmed Defendant's conviction and sentence for 1st Degree Rape following unconditional guilty plea.
  2002-CA-001503.pdf Size: 30 kb Date: 8/13/2003	Bryan v. O'Charleys Inc. Premises Liability, Black Ice, Directed Verdict Patron slips and falls on black ice at O'Charley's.  Summary Judgment for O'Charley's is affirmed by Court of Appeals.  Recently decided slip and fall cases of Smith v. Wal-Mart, Ky., 6 S.W.3d 829 (1999) (a.k.a. the "blue slushie case") and Lanier v. Wal-Mart, Ky., 99 S.W.3d 431 (2003) (a.k.a. the "shifting burden case") can be distinguished from cases that involve natural, outdoor hazards such as black ice.  The shifting burden approach  does not apply in cases involving natural, outdoor hazards.
  2002-CA-001523.pdf Size: 20 kb Date: 8/13/2003	Cox v. Cox Divorce, Jurisdiction, Foreign Judgments Court of Appeals affirmed trial court's Order denying husband's motion to alter, amend or vacate Order of Boyle Circuit Court granting a lien in the amount of $87,079.72 in favor of wife against real and personal property of husband.  Texas marriage, but parties resided, while married in Kentucky.  Parties separate and wife moves to Texas and files for divorce in Texas.  Husband is served in KY but does not respond to petition.  Texas court entered decree of dissolution divided marital property.  Texas court granted lien as referenced above, and wife filed Notice and Affidavit of Foreign Judgment Registration in the Boyle Circuit Court.  Husband filed Motion to Alter, Amend or Vacate filing of judgment.   Judgment upheld because husband did not demonstrate why jurisdiction was improper and Texas Judgment was subject to Uniform Enforcement of Foreign Judgment Act set forth in KRS 426.950-990.
  2002-CA-001566.pdf Size: 26 kb Date: 8/13/2003	Rodgers v. Com. Criminal CA affirmed TC's denial of pro se Defendant's motion to vacate pursuant to RCr 11.42 without an evidentiary hearing.
  2002-CA-001859.pdf Size: 22 kb Date: 8/13/2003	Mason v. Com. Criminal CA affirmed Defendant's convictions for 1st Degree Fleeing or Evading Police, 1st Degree Criminal Mischief, Falsely Reporting an Incident, Leaving the Scene of Accident, and Failure to Signal or Improper Signal.  There was sufficient evidence for convictions.  TC properly instructed the jury.
  2002-CA-001950.pdf Size: 41 kb Date: 8/13/2003	Com. v. Phillips Criminal, Search & Seizure CA reversed Jefferson Circuit Judge Geoffrey Morris' order suppressing evidence seized as a result of a search warrant issued by Jefferson Circuit Judge Tom McDonald.   In a separate civil proceeding, Judge McDonald appointed the Defendant as receiver to preserve the corporate assets of the Louisville Crematory Corporation.  Shortly thereafter, the Attorney General's Office began an investigation of the Defendant following allegations of appropriating funds and mismanagement.  Following application, Judge McDonald issued the search warrant that is the center of this controversy.  Following execution, the Defendant was indicted for Failure to Make Required Disposition of Property and Theft by Deception.   In his order, Judge Morris held the search warrant invalid because the supporting affidavit lacked probable cause.  Further, Morris held the good-faith exception to the warrant requirement did not apply because: 1.) Judge McDonald was not a neutral and detached magistrate; and 2.) the warrant was overbroad in that it did not describe with sufficient particularity the things to be seized.  The CA disagreed, specifically finding probable cause in the affidavit and a sufficient nexus between the places to be searched and the items to be seized.  Further, the CA found Judge McDonald to be neutral and detached.  Accordingly, Judge Morris' order suppressing the evidence was reversed and the case was remanded for trial.
  2002-CA-002104.pdf Size: 26 kb Date: 8/13/2003	Gamble v. Forrest City Residential Management, Inc. Negligence, Premises Liability Resident of apartment complex slips and falls on snow-covered parking lot.  Summary judgment granted in favor of apartment complex.  Summary Judgment affirmed by Court of Appeals.  Resident loses on 1.) common law negligence theory (based on PNC Bank v. Green, Ky., 30 S.W.3d 185 (2000); 2.) contract theory - resident alleged that apt. complex had contract with Landscape Lawn to clear parking lot and she was a third party beneficiary of the contract - court held that in order to recover on this theory she had a file suit against Landscape Lawn and because this was not filed, she lost.
  2002-CA-002131.pdf Size: 19 kb Date: 8/13/2003	Hensley v. Com. Criminal CA affirmed TC's denial of pro se Defendant's CR 60.02 motion to vacate.
  2002-CA-002582.pdf Size: 31 kb Date: 8/13/2003	Sidney Coal Co. v. Thacker  Workers Compensation - TTD - Safety Violation Penalty   Thacker was injured when a rock between 5 and 6 feet long and 1/2 to 4 feet wide fell on him on December 1, 2000.  The employer voluntarily paid TTD from 12/1/00 to 4/24/01.  A demand for additional TTD benefits was not among the contested issues listed for decision.  ALJ Edens awarded TTD benefits for the period of 12/2/00 to 11/5/01 (6+ additional months), PPD benefits, and applied the KRS 342.165(1) penalty to enhance the award by 30%. The award was affirmed by the Board and Court of Appeals.  The medical evidence of record was found adequate to support a finding of MMI as of 11/5/01 and the employer's argument that the ALJ lacked authority to award the additional TTD benefits due to Thacker's failure to list it among the issues to be decided was rejected by the Board and Court of Appeals, with the Court of Appeals simply noting that the employer fails to cite any statute, administrative regulation or case law to support its proposition.  The evidence of record was also held sufficient to support the finding that Thacker had been injured as a result of the employer's violation of a roof control plan required and approved by FMSHA pursuant to 30 CFR 75.220 that roof bolts be spaced no wider than 48 inches (4 feet) apart.
  2003-CA-000323.pdf Size: 19 kb Date: 8/13/2003	Maxie v. Paxton Media Group, Inc. Civil Procedure, Service CA affirmed TC's denial of CR 60.02(a) motion to alter, amend or vacate the judgment of the circuit court due to mistake, surprise, inadvertence, or excusable neglect claiming he had moved to another corrections facility when SJ mailed.  No error since mailed to his last known address.
  2003-CA-000471.pdf Size: 27 kb Date: 8/13/2003	Reinbold v. Ford Motor Co. Workers Compensation - Prior Active Non-Work Related Injury  Reinbold injured her neck in a 1996 non-work related motor vehicle accident for which she underwent a two level cervical fusion in 1997.  She returned to work on a Ford assembly line later in 1997.  On August 20, 1999 she experienced pain in her low back and neck while using a tool overhead.  After 2 weeks of light duty work, she was off work until January, 23, 2000, then returned to work performing jobs that required less and less physical exertion thereafter.  Medical treatment was conservative.  The treating physician (Fadel) assigned an 8% AMA rating to the cervical spine and an 8% AMA rating to the lumbar spine for a 16% combined rating with restrictions that he attributed to the 1999 work injury.  An IME physician (Wolens) assigned a 20% AMA rating to the neck but opined that the 1999 occurrence was only an aggravation of the prior active neck condition related to the 1996 injury and treatment without any permanency (no additional rating or restrictions), and assigned a 0% rating to the lumbar spine and did not believe the low back complaints were related to the work incident.  Reinbolt testified she was asymptomatic prior to the aggravating event at work.  ALJ D. Smith found Dr. Fadel's testimony that the back condition was work-related persuasive but relied on Dr. Wolen's testimony that the cervical condition was a re-injury of an active impairment and 0% rating of the lumbar spine.  Accordingly, the ALJ awarded medical benefits for the neck and low back but no permanent disability benefits.  The Board affirmed.  The Court of Appeals also affirmed noting: If a claimant has suffered a prior non-work related injury that results in an impairment rating, that impairment rating cannot b part and parcel of a disability rating, even if the existing impairment is not vocationally limiting.

• Western District Court - Kentucky
  Links and summaries taken en toto from official site
  

  Gary Miller v. PPG Industries, Inc.   The Court initially denied Plaintiff's Motion to Remand, finding that his claim for vacation benefits was preempted by ERISA and, therefore, that the Court had federal subject matter jurisdiction over claim. Although the Court found that ERISA did not preempt Plaintiff?s claims for occupational taxes and stock options, it determined that these claims should remain in federal court under supplemental jurisdiction. After engaging in limited discovery, Plaintiff filed a Renewed Motion to Remand arguing that subsequent evidence revealed that Defendant paid vacation benefits directly from its general assets which removed the vacation benefit plan from ERISA?s scope. After reviewing the newly submitted evidence the Court concluded that Defendant?s vacation benefit program constituted an exempted payroll practice because no separate vacation fund was ever established. Because Plaintiff?s complaint did not raise any federal issues, the Court lacked jurisdiction to adjudicate the claims and the action was remanded to state court. Mittman v. Rally's Hamburgers, Inc.   Motion for summary judgment in action by shareholders alleging securities fraud under section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. sec. 78j(b) and Rule 10b-5 promulgated thereunder at 17 CFR sec. 140.10b-5. Held: Summary judgment granted in favor of defendants. Plaintiffs unable to prove scienter with respect to the public statements, or that there was a fraud on the market, in light of the skepticism expressed by analysts. Compass Worldwide, Inc. v. Pinnacle Equipment, Inc.   Motion to dismiss for lack of personal jurisdiction filed by Pinnacle Equipment, former licensee of patents for viscous food product dispensers. Held: Motion to dismiss denied on the ground that negotiating for, obtaining and operating under license agreement with Kentucky Company, in addition to sending letter of termination and challenge to validity and scope of patents constituted minimum contacts with Kentucky, and that the claims for breach of license agreement and patent infringment arose from or were related to those activities. Pinnacle did not present a compelling case that the exercise of personal jurisdiction is unfair. USA v. George John Koufus   The Defendant moved to dismiss the federal indictment pending against him on the ground that he had been brought to trial within one hundred twenty days of arrival into federal custody in violation of the Interstate Agreement on Detainers, 18 U.S.C. App.2 § 2 (?IAD?). The Court denied the motion because the detainer had been withdrawn by previous order of the Court at Defendant?s request and, therefore, the proceeding was no longer one ?made possible? by the IAD.

   

• Sixth Circuit Court of Appeals 
  

  Opinion DocketSheet Pub Date Short Title/District 03a0293p.06 02-3273 2003/08/18  Castellano-Chacon v. INS     State of Ohio Agency 03a0294p.06 02-3058 2003/08/18  McKinnie v. Roadway Express Inc     Northern District of Ohio at Akron 03a0295p.06 01-1864 2003/08/18  Elec Workers Pension v. Gary's Electric      Eastern District of Michigan at Detroit 03a0296p.06 01-2727 2003/08/19  Maples v. Stegall     Eastern District of Michigan at Detroit 03a0297p.06 02-3087 2003/08/20  Yuhasz v. Brush Wellman, Inc.     Northern District of Ohio at Toledo 03a0298p.06 01-6190 2003/08/20  Meyers v. Columbia HCA     Western District of Kentucky at Bowling Green 03a0298p.06 01-6217 2003/08/20  Meyers v. Columbia HCA     Western District of Kentucky at Bowling Green 03a0299p.06 01-2335 2003/08/21  Jones v. City of Monroe     Eastern District of Michigan at Detroit 03a0300p.06 02-5491 2003/08/25  USA v. Vite-Espinoza     Middle District of Tennessee at Nashville 03a0300p.06 02-5492 2003/08/25  USA v. Martinez-Rivera     Middle District of Tennessee at Nashville 03a0301p.06 02-1128 2003/08/25  USA v. King     Western District of Michigan at Grand Rapids 03a0302p.06 01-2568 2003/08/25  Sagan v. USA     Eastern District of Michigan at Flint 03a0303p.06 02-3085 2003/08/25  Peabody Coal v. Dir. OWCP     State of Kentucky Agency 03a0304p.06 01-2733 2003/08/25  Hunley v. DuPont Automotive     Eastern District of Michigan at Detroit 03a0305p.06 01-4004 2003/08/26  Aoun v. INS     State of Michigan Agency 03a0306p.06 01-6194 2003/08/26  Loftis v. United Parcel Ser     Eastern District of Tennessee at Knoxville 03a0307p.06 00-1992 2003/08/27  Rockwell v. Yukins     Eastern District of Michigan at Detroit 03a0308p.06 01-2720 2003/08/28  Heald; et al v. Engler; et al     Eastern District of Michigan at Detroit 03a0309p.06 02-3324 2003/08/28  Kratt v. Garvey     State of Tennessee Agency 03a0310p.06 02-1237 2003/08/28  Ford Mtr Co v. Catalanotte     Eastern District of Michigan at Detroit 03a0311p.06 01-6379 2003/08/28  USA v. Baggett     Western District of Tennessee at Memphis 03a0312p.06 02-1187 2003/08/28  In re: Hurtado v.     Eastern District of Michigan at Detroit

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