• The Kentucky Decisions
  • 2 Ky Supremes 
  • 48 Ky Ct. App.
  • NO Western District of Kentucky
  • NO KY -Sixth Circuit Court of Appeals
• Index to past issues of Law Wire:  www.LouisvilleLaw.com/lawwire/index.htm
• "One-Minute" CLE - due to time constraints, you have been blessed with NONE of my usual ramblings of black letter notes following the decisions.  

WHAZZUP in this issue?

• Voluntary intoxication instruction is error if not defined 
• Sovereign immunity addresses school's responsibility for alcohol incident and school activities
• Shake this one off folks - defendant denied self-defense instruction for actions after he was just robbed.
• Family Court vs. District Court jurisdiction could affect entitlement to appeal to CA vs. Circuit Court
• Same Offense - New Questioning - New Miranda - an oldie but goodie revisited
• No modification of child support just because you're wearing inmate stripes
• Subsidiary corporations up the ladder defense works in workers comp case
• Malicious prosecution fails for belligerent patient in emergency room
• Zoning settlement moots intervention or settlement OBE (overtaken by events)
• Prejudice not a requirement for Coots UIM notification
• Priest abuse case's statute of limitations not tolled if church not told about abuse
• Child custody meets Jazz Singer
• Is equitable distribution the same as equal division of property?
• Maintenance for life affirmed
• $500,000 verdict for firing from Wal-Mart thrown out by CA
• Long arm jurisdiction and minimum contacts looked at to tag Florida corp.

Links to Official Site
 for the following opinions:

• Ky State Appellate Opinions
• Western District of Ky - Federal
• Sixth Circuit Court of Appeals - Federal
• United States Supreme Court

We are always on the prowl for cheap ("free") but smart lawyers.  We're again in the market for workers compensation specialty; I did this weeks but I must admit I haven't a clue. Government benefits or  employment is another area. We do have a nibble for the zoning cases.  If you don't view yourself as a "needle in a haystack" from all this "needling", then think of yourself as a "white knight" from the days of the AJAX commercial and zap a few opinions to the downtrodden. Thanx.

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• Samuel Hinkle
• Paul Schurman
• Mike Stevens
• Jim Worthington

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KENTUCKY APPELLATE DECISIONS 
September 22 - 26, 2003

• Kentucky SUPREME COURT Decisions 
  PUBLISHED - September 22, 2003
  

  AOC LINKS SUMMARIES OF DECISIONS

  1998-SC-000915-MR.pdf Size: 2422 kb Date: 9/22/2003 As Modified 9/22/2003 HOLLAND V. COM CRIMINAL - Jury Instructions SC reversed Defendant's conviction and 40 year sentence for Attempted Murder and Burglary due to erroneous instructions.  TC's failure to define the term "voluntary intoxication" entitled Defendant to a new trial.  This omission deprived the jury of any basis upon which to distinguish between the statutory concepts of voluntary and involuntary intoxication.  Error might have been compounded by prosecuting attorney's declaration during his closing argument.   TC further committed reversible error by denying Defendant's request (1) to incorporate Extreme Emotional Distress (EED) as an element of the Attempted Murder instructions; and (2) to instruct the jury that it could find Appellant guilty of Attempted First-Degree Manslaughter as a lesser-included offense.

• Kentucky SUPREME COURT Decisions
  PUBLISHED - September 23, 2003
   

  AOC LINKS SUMMARIES OF DECISIONS

  2000-SC-000342-DG.pdf Size: 1332 kb Date: 9/23/2003 As modified Sept. 23, 2003 this is a modification and was previously summarized. the nuances of any modification have not been noted. WILLIAMS V. KENTUCKY DEPARTMENT OF EDUCATION Board of Claims, Sovereign Immunity, Negligent Supervision HS student was killed in car accident when he was a passenger in car driven by another student at a time when he was supposed to be at school sponsored extra-curricular activity (decorating gym).  Administrator of estate filed in board of claims for minor's death and loss of consortium for minor. SC affirmed the dismissal of the claims for loss of consortium but reversed the dismissal of the claim for wrongful death. Because the Board of Claims dismissed that claim without reaching the issues of negligence, causation, apportionment, or damages, SC remanded to the Board for further proceedings on those issues. A school teacher can be held liable for injuries caused by negligent supervision of his/her students. Yanero v. Davis, Ky., 65 S.W.3d 510, 529 (2001); Wesley v. Page, Ky., 514 S.W.2d 697, 699 (1974). SC noted that among other facts, many of the students brought alcoholic beverages to the gymnasium in their private vehicles and openly consumed those beverages while supposedly decorating the gym. An ALJ could believe that the described pandemonium at Betsy Layne High School and at the gymnasium on the morning of April 28, 1989, was the result of negligent supervision (or no supervision), and that such was a substantial factor in causing the death of Anthony Williams. Each teacher and administrator in the public schools shall in accordance with the rules, regulations and bylaws of the board of education made and adopted pursuant to KRS 160.290 for the conduct of pupils, 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 "special relationship" formed between a school district and its students imposes an affirmative duty on the district, its faculty, and its administrators to take all reasonable steps to prevent foreseeable harm to its students. Faculty members in charge of this school-sponsored event conducted during school hours and on school premises should have foreseen that students who consumed alcoholic beverages on the premises, then left the premises in their private vehicles during the event, with or without permission, were likely to be involved in an accident causing injury or death. Thus, the fact that an alcohol-related accident actually occurred and caused the death of one of the students was neither "extraordinary" nor "unforeseeable." The Department of Education waived immunity for itself or any of its agencies or managerial officials and employees from vicarious liability for negligent performance of ministerial acts by employees of a local board of education. Loss of consortium is not a recoverable claim under Board of Claims Act.

• Kentucky COURT OF APPEALS Decisions
  NOT TO BE PUBLISHED - September 26 , 2003
  
  

  AOC LINKS SUMMARIES OF DECISIONS

  2001-CA-000369.pdf Size: 20 kb Date: 9/24/2003 CARDINER V. COM. CRIMINAL   On remand from Supreme Court.  CA originally decided it did not have jurisdiction to consider pro se  Defendant's RCr 11.42 and CR 60.02 motions.  SC said it did and remanded.  CA promptly affirmed Jefferson Circuit Judge Ann Shake's ruling to deny the motions. 2001-CA-000414.pdf Size: 40 kb Date: 9/24/2003 WAL-MART STORES, INC. V. WILLIAMS CIVIL RIGHTS, DISCRIMINATION, EMPLOYMENT Plaintiff fired from WalMart for taking several gallons of distilled water and drinking it without paying over several day period.  She claims age discrimination.  She fails the third part of the tripartite test and doesn't offer any evidence to overcome the Defendants reasons for termination.  C.A. overturns 500k award.  2001-CA-002706.pdf Size: 24 kb Date: 9/24/2003 COM. EX REL BRUMMET V. OLIVER CHILD SUPPORT, COLLECTION BY STATE  When Commonwealth prosecutes ex-husband for arrearages in child support owed both to custodial mother and to Commonwealth (due to AFDC being paid on behalf of child when husband did not pay), and Order entered by judge is for full amount to be paid to Commonwealth, rather than Commonwealth and mother, Commonwealth must pay mother amount owed directly to her. 2002-CA-000782.pdf Size: 22 kb Date: 9/24/2003 COX V. COM. CRIMINAL - Plea Bargains  CA affirmed Defendant's conviction for Trafficking in Marijuana following conditional guily plea.  There was no plea agreement for misdemeanor and, even if there was, the Defendant did not keep his part of the bargain. 2002-CA-000802.pdf Size: 49 kb Date: 9/24/2003 SLATON V. COM. CRIMINAL  CA affirmed Defendant's conviction and 10 year sentence for Complicity to Manslaughter - 2nd Degree.  TC did not err in allowing Detective to testify as to the contents of Defendant's statement to the police.  There was no prosecutoral misconduct. 2002-CA-001158.pdf Size: 20 kb Date: 9/24/2003 DAD V. COM. CRIMINAL - Jury Instructions CA affirmed Defendant's conviction for Wanton Endangerment - 1st Degree.  Jefferson Circuit Judge Ann Shake properly refused self-defense instruction.  TC properly denied motions for mistrial and directed verdict.   Here, the Defendant fired a gun at an individual who had just assaulted the Defendant and robbed the store where the Defendant worked.  The entire incident was captured on videotape.  The tape revealed the Defendant fired the gun after the robber had left the store.   "The trial court may only give a self protection or self defense instruction where the jury could find that the defendant had a belief that she was at risk for imminent harm when she took the action complained of. Commonwealth v. Higgs, Ky., 59 S.W.3d 886, 889 (2001). The belief cannot be wanton or reckless, but must be supported by some evidence in the record. Id. at 890. A self protection instruction may not be given in the absence of such evidence, which would permit a jury to find in favor of the defendant. Allen v. Commonwealth, Ky., 5 S.W.3d 137, 139 (1999)."  CA found that the record did not support a finding that the use of deadly physical force was necessary under the circumstances.   Note:  It seems a little odd that you can't get a mere instruction on self-defense for an action taken immediately after being assaulted and robbed.  The jury is free to reject the argument. 2002-CA-001285.pdf Size: 19 kb Date: 9/24/2003 RICHARDSON V. COM. CRIMINAL CA affirmed TC's denial of Defendant's RCr 11.42 motion to vacate alleging ineffective assistance of counsel.  Defendant was not entitled to evidentiary hearing on the motion. 2002-CA-001294.pdf Size: 31 kb Date: 9/24/2003 EALY V. EALY DIVORCE, MAINTENANCE, PROPERTY DISTRIBUTION  Court of Appeals affirms trial court's division of marital property, order for husband to pay marital debt and for husband to pay maintenance to wife for rest of her life in the amount of $3,000.00. 2002-CA-001598.pdf Size: 25 kb Date: 9/24/2003 STANLEY V. COM. CRIMINAL   CA affirmed Defendant's conviction for  possession of cocaine while in possession of a firearm and possession of drug paraphernalia while in possession of a firearm.  TC committed no reversible error in numerous evidentiary rulings. 2002-CA-001632.pdf Size: 32 kb Date: 9/24/2003 J.O. V. COM. APPEALS, JURISDICTION, FAMILY COURT  "Family Court's determination in this case was pursuant to the concurrent jurisdiction provisions of KRS 620.027 and the permanency hearing provisions of KRS 610.010(13). No event occurred to trigger the termination of the proceeding as a dependency, abuse, or neglect case. Further, nowhere in the family court record was any motion made or order entered which invoked circuit court jurisdiction under KRS Chapter 403. As the family court was exercising district court jurisdiction throughout the proceedings below, it follows that J.O.’s appeal was to Jefferson Circuit Court. Elery, 4 S.W.3d 550; T.A. v. Byer, Ky., 13 S.W.3d 629 (2000); JFRP 109; KRS 620.155. In summary, all of the family court orders in this case, including the custody orders and the order denying J.O.’s CR 60.02 motion to vacate the custody orders, were issued pursuant to that court’s district court authority. J.O.’s right of appeal, therefore, was to the Jefferson Circuit Court. Accordingly, this Court lacks jurisdiction to hear J.O.’s appeal, which is hereby dismissed." 2002-CA-001760.pdf Size: 25 kb Date: 9/24/2003 BLUEGRASS FLOW, INC. V. KENTUCKY-AMERICAN WATER CO. STANDING, TAXPAYERS SUIT Bluegrass FLOW, Inc., a non-profit Kentucky corporation whose members and directors are taxpayers, and consumers, customers and ratepayors  were denied standing to contest water franchise awarded by the Lexington-Fayette Urban County Government (LFUCG) to Kentucky-American Water Company.  2002-CA-001855.pdf Size: 22 kb Date: 9/24/2003 LUCAS V. COM. CRIMINAL - Miranda warning CA affirmed in part and reversed in part TC's order regarding custodial interrogation and Miranda warnings.  TC properly found that Lucas was in custody when he was questioned regarding a second offense.  TC erroneously found that the Miranda warning given before the earlier non-custodial interrogation was sufficient to protect Lucas’ rights during the later custodial interrogation. "Where a new interrogation is commenced, a new Miranda warning is required, even if the questioning is regarding the same or similar charges. Linehan v. Commonwealth, Ky., 878 S.W.2d 8, 11 (1994). Miranda warnings must be provided to a defendant before any custodial interrogation that is separate in time from any other custodial interrogation. Wilson v. Commonwealth, Ky., 476 S.W.2d 622, 623 (1971). This is so unless the interrogations are so close in time as to be part of the same occurrence, or where the statements are volunteered by the defendant without prompting. Campbell v. Commonwealth, Ky., 732 S.W.2d 878, 881 (1987)." 2002-CA-001856.pdf Size: 59 kb Date: 9/24/2003 SIMPSON V. LEXINGTON-FAYETTE URBAN COUNTY GOV'T CIVIL RIGHTS, EMPLOYMENT DISCRIMINATION  A twenty eight page opinion that concludes the lower court acted properly in granting the defendant S/J and not altering, amending or vacating the judgment.  C.A. went through a lot of machinations to say "we agree." 2002-CA-002022.pdf Size: 33 kb Date: 9/24/2003 ESTEP V. COM. CRIMINAL  CA affirmed TC's order denying pro se Defendant's motion to vacate pursuant to RCr 11.42 alleging ineffective assistance of counsel. 2002-CA-002025.pdf Size: 18 kb Date: 9/24/2003 PRICE V. COM. CRIMINAL CA affirmed TC's order denying pro se  Defendant's motion to correct sentence pursuant to CR 60.02. 2002-CA-002139.pdf Size: 21 kb Date: 9/24/2003 DOUGLAS V. BARNES CRIMINAL, INMATE DUE PROCESS CA affirmed TC's order denying pro se inmate's motion for declaratory judgment and injunctive relief.  Inmate received adequate due process. 2002-CA-002145.pdf Size: 34 kb Date: 9/24/2003 DAY V. COM. CRIMINAL CA affirmed Defendant's motion to vacate pursuant to RCr 11.42 alleging ineffective assistance of counsel. 2002-CA-002400.pdf Size: 21 kb Date: 9/24/2003 SHORT V. COM. CRIMINAL CA affirmed TC's order denying Defendant's motion to vacate pursuant to RCr 11.42 as untimely filed. 2002-CA-002569.pdf Size: 29 kb Date: 9/24/2003 HUTCHINSON V. COM. CRIMINAL CRIMINAL - Terry Stop CA affirmed Defendant's convictions following conditional guilty plea to the charges of first-degree fleeing or evading police, first-degree possession of a controlled substance, receiving stolen property valued at over $300.00, possession of marijuana, possession of drug paraphernalia, DUI, and operating a motor vehicle on a suspended license.  Police had an articulable and reasonable suspicion of criminal activity that justified traffic stop. 2003-CA-000268.pdf Size: 23 kb Date: 9/24/2003 MCDOWELL APPALACHIAN REG. HOSP. V. RICE WORKERS COMP McDowell Appalachian Regional Hospital (ARH) petitions for review from a decision of the Workers' Compensation Board (Board) finding Brenda Rice to be totally occupationally disabled following her motion to reopen her claim. CA affirmed finding there was substantial evidence of probative value to support the ALJ's conclusion.

• Kentucky Court of Appeals Decisions
  NOT TO BE PUBLISHED - September 19, 2003

AOC LINKS SUMMARIES OF DECISIONS

2001-CA-002483.pdf Size: 29 kb Date: 9/17/2003 ARLINGHAUS V. COVINGTON URBAN DESIGN & REVIEW BOARD ZONING Appellant owns property within an historic preservation overlay zone in the city of Covington.  Appellant replaced 35 single pane windows due to rotting and leaking with vinyl clad double-pane insulated windows.  The windows were smaller than those they replaced.  Appellant was criminally cited for failure to obtain the proper permit.  After a lengthy process involving an appeal to the Kenton Circuit Court, the Covington Urban Design and Review Board (“UDRB”) denied appellant’s after-the-fact application for a permit.  The Kenton Circuit Court upheld that decision.  The Court of Appeals affirmed.  Appellant argued that the UDRB failed to comply with various requirements of the local zoning ordinance which included requirements to make certain findings of historic significance and to review its surveys of historic sites periodically.  The court rejected these arguments Appellant argued that the zoning ordinance gave the UDRB jurisdiction only over those portions of his building which are visible from the street.  The court rejected that argument as “nonsensical,” concluding that public view does not mean only visible from the street.  Appellant also argued that its window repairs were an ordinary repair which was exempt under state law and the city zoning ordinance.  The court rejected this argument as well.  A principal lesson the case teaches is the importance of strict compliance by local zoning authorities with their own ordinance in enforcing historic district overlays.  Compliance with the ordinance is sure to be scrutinized in any dispute with a real property owner.  2001-CA-002691.pdf Size: 25 kb Date: 9/17/2003 SPRADLIN V. SPRADLIN DIVORCE, PROPERTY DISTRIBUTION  Court of Appeals affirms trial court ruling on valuation and division of assets related to corporations that both husband and wife owns.  Referenced in the case is KRS 403.190 and Russell v. Russell, Ky., 878 S.W.2d 24 (1994),where the Court of Appeals held that there is not a presumption or requirement that marital property be equally divided. 2002-CA-000058.pdf Size: 18 kb Date: 9/17/2003 GAINES V. COM. FAMILY - CHILD SUPPORT  Incarceration does not justify modification of child support pursuant to Kentucky Revised Statute (KRS) 403.213. 2002-CA-000696.pdf Size: 24 kb Date: 9/17/2003 HOWARD V. COM. CRIMINAL CA affirmed Defendant's conviction for Cultivation of Marijuana with Intent to Sell.  TC properly denied Defendant's Motion to Suppress alleging Miranda violations. 2002-CA-000786.pdf Size: 32 kb Date: 9/17/2003 BARKER V. COM. CRIMINAL  CA affirmed TC's denial of Defendant's motion to vacate conviction for Sexual Abuse pursuant to CR 60.02. 2002-CA-000980.pdf Size: 44 kb Date: 9/17/2003 BARNES V. COMMUNITY TRUST BANK STATUTE OF LIMITATIONS  C.A. held that an auto loan assigned to the bank carries the four year statute of limitation for breach of contract under Article 2 and not a fifteen year under the statute.  2002-CA-001248.pdf Size: 22 kb Date: 9/17/2003 TIMBERLINE CONSTRUCTION, INC. V. PEDLEY ARBITRATION The C.A. decided that four years was too long to wait to assert an arbitration clause defense to a lawsuit.  C.A. said "waiver" does apply to arbitration clauses in contracts.   BEWARE REALTORS BEWARE!!!   2002-CA-001342.pdf Size: 25 kb Date: 9/17/2003 HENSLEY V. FIRST HEALTHCARE CORP. WORKERS COMP, EXCLUSIVE REMEDY, UP THE LADDER  Vencor subsidiary entitled entitled to 'up the ladder' defense from suit filed by other Vencor subsidiary involving injuries when claimant Hensley slipped on the freshly waxed hallway just outside her workplace and suffered a disabling injury. Her employer, Vencare, Inc., a provider of respiratory therapy services, paid her workers' compensation benefits. Claimant brought suit seeking negligence damages against First HealthCare Corporation (a/k/a Lexington Centre for Health and Rehabilitation), a Lexington nursing home, which owned and operated the premises where the injury occurred.  At the time of the accident, both Vencare and First HealthCare were wholly owned subsidiaries of Vencor, Inc.  CA affirmed dismissal holding  First Healthcare was Hensley's up-the-ladder employer and thus was immune from Hensley's negligence action under the exclusive-remedy provision of the Workers Compensation Act.  2002-CA-001385.pdf Size: 27 kb Date: 9/17/2003 JOHNSON V. ST. CLAIRE MEDICAL CENTER, INC. MALICIOUS PROSECUTION, FALSE IMPRISONMENT, BATTERY CA affirmed summary judgment dismissing suit by aggressive and disruptive patient who was continually trying to kick, punch, bite or hit any staff member that approached him against hospital for his treatment in emergency room claiming malicious prosecution, false imprisonment, and battery as a result of the treatment he received in the emergency room.   2002-CA-001504.pdf Size: 31 kb Date: 9/17/2003 E.B. V. COM. FAMILY LAW, TERMINATION OF PARENTAL RIGHTS  Court of Appeals affirms trial court ruling that father's rights to his children are terminated after there was a finding of abuse and neglect.  KRS 625.090 controls termination of parental rights.   2002-CA-001630.pdf Size: 35 kb Date: 9/17/2003 PHIPPS V. COM. CRIMINAL  CA affirmed Defendant's conviction following guilty plea to complicity to commit theft by unlawful taking of property over $300 and bail jumping in the first degree. 2002-CA-001657.pdf Size: 35 kb Date: 9/17/2003 CITY OF MURRAY V. BILLINGTON WORKERS COMP, UP THE LADDER DEFENSE CA affirmed Board that the issues raised by City of Murray pertaining to prior award of attorneys fees were barred by the doctrines of res judicata and the "law of the case". 2002-CA-001926.pdf Size: 28 kb Date: 9/17/2003 MOORE V. B & Z DEVELOPMENT, INC. ZONING Developer sought to rezone property located in the City of Ft. Wright.  The application was approved by the Ft. Wright city council subject to certain conditions, including submission of a development plan.  The city council required that the development plan be reviewed, approved and adopted by it. Developer submitted its proposed development plan, which included a Wal-Mart supercenter.  Learning about Wal-Mart, various members of the community, including appellants, commenced public opposition.  At a public hearing, the city council denied the development plan.  Developer appealed to Kenton Circuit Court.  During the pendency of the circuit court appeal, developer submitted a revised development plan, apparently in consultation with the city council.  The city council and developer entered into a settlement agreement adopting the revised development plan.  The appellants filed a motion to intervene in the circuit court proceeding to challenge both the settlement agreement and the revised development plan.  Developer and city council objected on the grounds that the pending proceeding was moot.  The circuit court agreed and denied appellants’ motion to intervene.  It also adopted, “as its judgment,” the settlement agreement and dismissed the case with prejudice.  The Court of Appeals affirmed.  It reasoned that the circuit court’s adoption of the settlement agreement was not res judicata as to the appellants and that the appellants were still able to appeal the city council’s approval of the revised development plan.  As a result, the Court of Appeals concluded that appellants were not entitled to intervene as a matter of right and that the circuit court did not abuse its discretion in denying appellants’ motion to intervene under the provisions of CR 24.02, which addresses permissive intervention. COMMENT:   Although appellants lost the battle, the court concluded they were still able to appeal the revised development plan.  However, it is unclear whether or not the time for taking such an appeal had run.  Did the appellants file an appeal of the city council action in adopting the second development plan even while the appeal of the motion to intervene was pending? 2002-CA-001985.pdf Size: 25 kb Date: 9/17/2003 COLLINS V. CHANDLER SOVEREIGN IMMUNITY  CA affirmed summary judgment dismissing taxpayers' lawsuit against Commonweath of Kentucky disputing disposition of proceeds from the "Tobacco Lawsuit" based upon sovereign immunity. 2002-CA-001989.pdf Size: 31 kb Date: 9/17/2003 SINGER V. PERKINS GRANDPARENT VISITATION, VENUE Main issue is that of grandparent visitation pursuant to KRS 405.021.  Where no Petition for grandparent visitation is filed and a specific finding of it being in the child's best interest to have specific grandparent visitation, then no visitation with the grandparents can be enforced.   Note:  The child's mother was named Misty Singer.  The child's name was Jazz. Thus we are left to assume that the child's name was "Jazz Singer".  As if the child's life wasn't already distorted, the child's mother was strangled by her new boyfriend (not the father of Jazz) before a hearing in the underlying case could be completed. Child then lived with Misty's parents at time of hearing to determine if father should have custody.  Custody was subsequently given to the natural father.  In this Order granting custody of Jazz to father the Court noted that the grandparents should be allowed to visit the child.  Court of Appeals held that grandparents were not granted scheduled visitation because they had not filed a Petition for same. JERI 2002-CA-002055.pdf Size: 27 kb Date: 9/17/2003 POPE V. ALLSTATE INS. CO. UNDERINSURED MOTORIST BENEFITS,  NOTICE OF SETTLEMENT  CA affirmed dismissal of underinsured claim because plaintiff failed to provide Allstate notice of the settlement with the tortfeasor's insurance carrier and afford Allstate of the opportunity to protect its subrogation rights under Coots v. Allstate. No requirement for UIM carrier to show that it was prejudiced by failure to be notified.  COMMENTARY:   The "prejudice" issue was disposed of rather summarily by the CA with more space dedicated to the adequacy of the Coots/KRS 304.39-320 notice of settlement.  The latter should have been cut and dry per the statute, but the former issue regarding prejudice presented an interesting idea that never played out in the facts of this opinion (and we did not read the briefs either). Here is the thought.  The notice to the UIM carrier is designed to allow the UIM carrier the opportunity to protect its subrogation rights against the underinsured tortfeasor.  What if it turned out that the underinsured tortfeasor was judgment proof so that the subrogation rights were effectively worth nothing?  Result -  UIM carrier has not been "really" prejudiced as it relates to subrogation, but has lost the opportunity to advance the settlement and keep the underinsured tortfeasor in the lawsuit.  However, we venture down a slipper slope here since the prejudice is the lost opportunity and not the value of the lost opportunity. Prejudice is not the issue.  CA reached the right result. For those followers of appellate trends, the CA (consisting of Guidugli, Rockingham and Tacket) sent us another 'aside' on appellate practice and procedure about the proper inclusions of exhibits and the technical application of the rules, to wit: "Prior to addressing the merits of the appeal, we must first address a procedural matter regarding documents Pope attached as exhibits to her brief. Pope attached three letters regarding the settlement between herself and Shelter, the last being an August 24, 2001, letter from Pope's counsel to Ms. Nicole M. Mignone of Allstate regarding the proposed $17,000 settlement. Pursuant to CR 76.12(4)(c)(vii), only materials or documents included in the certified record on appeal may be included in the appendix to a brief. The three documents were not introduced in the circuit court nor were they included in the certified record on appeal, and therefore should not have been included as exhibits to Pope's brief. Accordingly, we shall disregard the letters dated August 17, 2001, August 21, 2001, and August 24, 2001, as well as any citations to the documents in Pope's brief. Croley v. Alsip, Ky., 602 S.W.2d 418 (1980)." It was just a few months ago that another CA (consisting of Johnson, Guidugli, and Knopf) as opposed to this CA (consisting of Buckingham, Guidugli, and Tacket) laid down the law and ignored documents putatively attached to briefs involving Allstate (Powell v. Allstate). 2002-CA-002263.pdf Size: 17 kb Date: 9/17/2003 FULTZ V. COM. CRIMINAL  CA affirmed Defendant's conviction following conditional plea of guilty (RCr 8.09) to the offense of possession of a handgun by a convicted felon.  TC properly denied Defendant's motion to suppress alleging defective search warrant. 2002-CA-002599.pdf Size: 25 kb Date: 9/17/2003 ADAMS STONE CORP. V. CANTRELL WORKERS COMP CA affirmed findings that Adams Stone Corporation (Adams) and the Workers' Compensation Funds (WCF) were each responsible for one-half of the total dollar value of an award payable to the estate of Terry Cantrell, Sr. (Cantrell). The ALJ calculated the award to Cantrell's estate by adding the permanent total disability (PTD) benefits awarded for the period preceding Cantrell's death, and the survivor's benefits awarded to Cantrell's widow for the remainder of Cantrell's life expectancy. In making his calculations, the ALJ credited Adams with a dollar-for-dollar credit for temporary total disability (TTD) benefits previously paid to Cantrell. 2003-CA-000067.pdf Size: 22 kb Date: 9/17/2003 YORK V. COM. CRIMINAL  CA affirmed TC's order denying pro se  Defendant's motion to relief pursuant to CR 60.02. 2003-CA-000079.pdf Size: 29 kb Date: 9/17/2003 BAKER V. CITY OF LOUISVILLE WORKERS COMP Claimant's attempt to re-open his workers compensation claim following back surgery was barred by 4 years statute of limitations. CA also rejected claimant Baker's equitable estoppel argument relying upon employer's payment of TTD following second surgery. Here the court addressed the concept of equitable estoppel and its application to this case. One-Minute CLE on Equitable Estoppel Compliments of Judge Paisley: "Although Baker does not identify a specific estoppel theory, we construe his argument as relying upon the doctrine of equitable estoppel. The essential elements of that doctrine are:  (1) conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) the intention, or at least the expectation, that such conduct shall be acted upon by, or influence, the other party or other persons; and (3) knowledge, actual or constructive, of the real facts.  And, broadly speaking, as related to the party claiming the estoppel, the essential elements are (1) lack of knowledge and of the means of knowledge of the truth as to the facts in question; (2) reliance, in good faith, upon the conduct or statements of the party to be estopped; and (3) action or inaction based thereon of such a character as to change the position or status of the party claiming the estoppel, to his injury, detriment, or prejudice. Weiand v. Board of Trustees of Kentucky Retirement Systems, Ky ., 25 S.W.3d 88, 91 (2000)(quoting Electric and Water Plant Board of City of Frankfort v. Suburban Acres Development, Inc., Ky., 513 S.W.2d 489, 491 (1974)). Clearly, the facts herein do not satisfy the requirements for equitable estoppel. The city's payment of voluntary TTD benefits, consistent with its obligation under KRS Chapter 342, was not conduct which amounted to a false representation of a material fact. Further, it cannot be said that Baker lacked the means to acquire knowledge regarding the limitations period set out in KRS 342.125(8). Hence, no basis exists for applying the doctrine of equitable estoppel so as to deprive the city of its limitations defense." 2003-CA-000149.pdf Size: 21 kb Date: 9/17/2003 BOB LAYER GENERAL EXCAVATING V. CHILTON WORKERS COMP "We think the ALJ's finding that Chilton was extremely emotionally distressed about undergoing surgery was supported by Chilton's testimony and that this finding constitutes substantial basis upon which to base the ALJ's award of TTD benefits during the ten-month period. As such, we reject Bob Layer's claim that the ALJ's award of TTD benefits between the time period of March, 1999, and January, 2000, was not based upon substantial evidence."   2003-CA-000171.pdf Size: 19 kb Date: 9/17/2003 GARDER V. COM. CRIMINAL CA affirmed TC's order denying pro se Defendant's motion for relief pursuant to CR 60.02. 2003-CA-000784.pdf Size: 34 kb Date: 9/17/2003 JOHNSON V. RONNIE ABLES DRYWALL WORKERS COMP  CA ruled that previously entered sanctions to be imposed against employer who had raised without merit defenses of intoxication and lack of jurisdiction after the Board had erroneously resurrected findings and conclusions made by the previously sitting ALJ.   2003-CA-000868.pdf Size: 31 kb Date: 9/17/2003 CONSOL ENERGY, INC. V. HALL WORKERS COMP  CA held "as a matter of law a factual determination must be made regarding the timeliness of notice as to the hearing loss claim" and remanded that issue for further consideration by the ALJ in a black lung and hearing loss claim.

• Kentucky COURT OF APPEALS Decisions
  PUBLISHED - September 12,  2003

• Kentucky Court of Appeals Decisions
  Not to Be published - Sept. 12, 2003

AOC LINKS SUMMARIES OF DECISIONS

1999-CA-001439.pdf Size: 26 kb Date: 9/11/2003 ROGERS V. COM. CRIMINAL  CA affirmed Defendant's convictions for cultivating marijuana and possession of drug paraphernalia.  There was sufficient evidence for convictions, testimony was properly replayed during jury deliberations, and statements by Defendant were properly admitted. 2000-CA-000080.pdf Size: 18 kb Date: 9/11/2003 BOBO V. COM. CRIMINAL - Sex Offender Registration Act CA affirmed Circuit Court's classification of Defendant under Sex Offender Classification Act. 2001-CA-000641.pdf Size: 25 kb Date: 9/11/2003 COM. V. LANE FAMILY LAW, FULL FAITH AND CREDIT, CHILD SUPPORT "This case involves the status of a child support order issued by a court in Florida, and subsequently registered in Kentucky pursuant to the Uniform Interstate Family Support Act (UIFSA) that was adopted by Kentucky in 1998. See KRS 407.5101 et seq. After confirming the Florida order, the Fayette Circuit Court discovered, on the basis of evidence offered by the parties and in consultation with the issuing court in Florida, that the order was based on a mistake of fact. Consequently, the trial court ordered the child support stayed and unenforceable in the state of Kentucky. The Fayette County Attorney appeals, citing KRE 407.5608, and the Full Faith and Credit to Child Support Orders Act, 28 U.S.C. 1738B. No brief was filed for the appellee. Because KRS 407.5608 unequivocally states that a child support order, once confirmed, may not be contested, we reverse." 2001-CA-002159.pdf Size: 33 kb Date: 9/11/2003 BRYANT V. COM. CRIMINAL - Jury Instructions CA affirmed Defendant's convictions for unlawful transaction with a minor in the third degree  and terroristic threatening  but reversed his convictions for unlawful imprisonment in the first degree and being a persistent felony offender in the second degree.  TC committed reversible error in refusing instructions on unlawful imprisonment in the second degree. 2001-CA-002377.pdf Size: 32 kb Date: 9/11/2003 GRZYWACZ V. GRZYWACZ FAMILY LAW, CHILD SUPPORT, CHILD CARE, VISITATION  "James Grzywacz appeals from an order of the Warren Circuit Court awarding child support and work-related child care costs to his former spouse, Deborah Grzywacz, and establishing a visitation schedule based on Deborah's work schedule. Deborah cross-appeals from an order changing the designation of their child custody arrangement. We affirm as to the appeals, vacate as to the cross-appeal, and remand for further findings in accordance with this opinion." 2002-CA-000553.pdf Size: 30 kb Date: 9/11/2003 BIGSBY V. COM. CRIMINAL CA affirmed Circuit Court's order r evoking Defendant's mandatory three year conditional discharge under KRS § 532.060.  Circuit Court did not abuse its discretion. 2002-CA-000984.pdf Size: 32 kb Date: 9/11/2003 THACKER V. COM. CRIMINAL  CA affirmed Defendant's convictions for Escape 2 and PFO 1.  Defendant was not entitled to dismissal of the charges pursuant to KRS 500.110 and  his convictions were supported by the evidence. 2002-CA-001050.pdf Size: 32 kb Date: 9/11/2003 LOUDEN V. COM. CRIMINAL  Consolidated appeals of co-defendants.  CA affirmed convictions for Robbery 2nd and Complicity.  Defendants not entitled to directed verdicts, TC did not arbitrarily reject plea offer, and prosecutor's closing remarks were not improper. 2002-CA-001410.pdf Size: 30 kb Date: 9/11/2003 MOBLEY V. COM. CRIMINAL CA reversed Defendant's conviction for Possession of Cocaine and Promoting Contraband following conditional guilty plea.  The search of his person and the car in which he was a passenger was incident to an unlawful arrest for possession of drug paraphernalia. 2002-CA-001610.pdf Size: 22 kb Date: 9/11/2003 MCGINNIS V. ROMAN CATHOLIC DIOCESE OF COVINGTON STATUTE OF LIMITATIONS CA affirmed dismissal of plaintiff McGinnis' claims as there there is no evidence that the Diocese concealed or had knowledge of abuse of children by Father Fedders either during McGinnis's minority or between the age of his majority and the time he notified the Diocese of his claims.  The trial court correctly ruled that McGinnis's claim is barred by the statute of limitations 2002-CA-001706.pdf Size: 43 kb Date: 9/11/2003 HAWKINS V. CITY OF LAWRENCEBURG GOVERNMENT EMPLOYMENT, DEMOTION CA affirmed police disciplinary decision that demoted police officer after finding he was guilty of incompetency, inefficiency, and the accumulation of minor infractions. 2002-CA-001714.pdf Size: 62 kb Date: 9/11/2003 GRIFFIN INDUSTRIES V. TURNER ENVIROLOGIC, INC. JURISDICTION, LONG ARM STATUTE Kentucky's long-arm statute was examined and applied for extending personal jurisdiction over Florida corporation for availing itself and having minimum contacts with Kentucky.   COMMENTARY:  This is an excellent case which spells out the black letter law requirements for personal jurisdiction. 2002-CA-001788.pdf Size: 30 kb Date: 9/11/2003 HOUSE V. CASTANIS FAMILY LAW, JOINT CUSTODY, MOVING OUT OF STATE This case addressed parent with joint custody who remarried and wanted to move out of state.  This is companion case to House v Roberts.  This child (Tessa) wanted to stay with father in Kentucky. "Ultimately, the circuit court determined that the decisive factors in this case were Tessa's integration into her father's household and, most importantly, her own clearly-expressed wishes. Having reviewed the record, we hold that the circuit court's findings are based on substantial evidence and are not clearly erroneous. In regard to the statutory factors for which the circuit court did not make specific written findings, we hold that even if such findings had been required, the evidence in the record suggests that the court's failure to make them would have resulted in harmless error" 2002-CA-001789.pdf Size: 22 kb Date: 9/11/2003 HOUSE V. ROBERTS FAMILY LAW, JOINT CUSTODY, MOVING OUT OF STATE In petition to modify previously awarded joint custody, CA agreed with TC thta both parties involved appear to be loving, capable parents whom the child loves. However, mother's choice to move with her new husband to another state does not justify the drastic disruption to child's life caused by such a move. It is noted that mother, under the court's order, is given liberal timesharing with child and that joint custody remains in effect.  2002-CA-001796.pdf Size: 48 kb Date: 9/11/2003 STEPHENSON V. CSX TRANSPORTATION, INC. CIVIL PROCEDURE, AMENDED COMPLAINT CA addressed CR 15 for the amendment of the complaint and the relation back of such amendments in a cause of action based upon a substantive federal right (FELA - Federal Employees Labor Act) and reversed and remanded since trial court abused its discretion in allowing the amendment. COMMENTARY:  This decision addressed cumulative trauma vs. a traumatic episode and whether the defendant CSX would have had sufficient notice of claim for hearing loss arising from a single inicident or continuing exposur