• The Kentucky Decisions
  • No Ky Supreme Court
  • 33 Ky Court of Appeals.
  • 1 Western District of Kentucky
  • 1 KY -Sixth Circuit Court of Appeals
• Index to past issues of Law Wire:  www.LouisvilleLaw.com/lawwire/index.htm
• "One-Minute" CLE - An oldie but goodie, summary judgment teasers on proof and proving.

WHAZZUP in this Issue!

• Seatbelt instructions unseated for passenger

• DUI and reasonable accommodations by the constabulary for the independent blood test

• Joint wills prohibit single revocation

• Jury does not have its way in reading depositions during deliberations

• Are dueling affidavits the only way to fight summary judgment? 

• Affidavits and impeaching the jury's verdict

• Apportioning criminal restitution levels the field

• Dismissals and failure to appear by victims

• No fault statute is exclusive remedy for slow paying PIP

• Handcuffs for safety is not custody for Mirandizing purposes

• Funeral home's dark stairs upstaged by code violations in slip and fall during visitation hours

• Carpal tunnel syndrome plays sleight of hand in the accrual of workers comp statute of limitations 

Run for the Robes

• Running for judge is tough, and I hope all of you have done your bit to support the candidate of your choice with a contribution, a yard sign, a recommendation to a friend or a client, or taking the time to fill out a ballot for the LBA judicial poll.

• Too many voters have no clue about the judicial races since all the divisions are lumped together county-wide. 

• Don't let it fall on name recognition, "sound bites", or the color of a yard sign.  Justice is too dear to us all for the lawyers to be concerned how the winner will react if we supported the loser.  If you straddle the fence, then we all lose.

• We have two district court judges vying to move up to circuit court - Donald Armstrong and Martin McDonald.  Take a stand.  I am sure each of them wants each of you to show the independence of mind and spirit that led you to the law in the first place.

Your Favorite Bars

• www.LouBar.org

• www.KyBar.org

• www.fcba.com

• www.NKyBar.org

• www.Kata.org

• www.AmBar.org

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

Editors and Contributors 

• Jeri Barkley
• Scott Byrd
• Samuel Hinkle
• Paul Schurman
• Mike Stevens
• Jim Worthington

Unpublished opinions shall never be cited or used as authority in any other case in any court of this state. 

Kentucky Rule of Civil Procedure 76.28(4).

A 'Taste' of LawReader 
Sample Topics from their index - "A only"

Price is still $29.95 per month for nationwide cases, kentucky statutes and specialized forms and topic materials - this site is pending upgrading and increased ease of use and the price is still right.  
Click here for a special "CAM CORDER" ;)

A

ACCOUNTING LAW & RESOURCES 
ADMINISTRATIVE LAW
ADMIRALTY and maritime law resources 
ADMONITIONS - Jury Trial 
ADOPTION FORMS 
Administrative Regs. - kentucky - kar 
ADMINISTRATIVE OFFICE OF THE COURTS 
ALCOHOLIC BEVERAGES 
Anatomy- Gray's Anatomy of Human Body - Illustrated 
ANNOTATED TOPIC DIGEST
Answers About everything 
Appeal Procedures Room forms, links, rules, resources for writing AN appeal 
APPELLATE PROCEDURE & TIMES: CIVIL 
APPELLATE PROCEDURE & TIMES: CRIMINAL 
ARREST POWERS - Out of county 
ATomic Clock REALLY ACCURATE TIME 
AUTO INSURANCE - AFTER DUI 
attorney general's opinions With laweader topic index 
Attorney General's OFFICE INCLUDING A.G. OPINIONS 
Attorney's Fees 
AUTOMOBILE RESOURCES - LINKS Blue Book, NADA, Cars.com, etc. 
AVIATION LAW RESOURCES 

KENTUCKY APPELLATE DECISIONS 
September 29 - October 3, 2003

• Kentucky SUPREME COURT Decisions 
  None

• Kentucky COURT OF APPEALS Decisions
  PUBLISHED - Oct. 3, 2003

   

  AOC LINKS SUMMARIES OF DECISIONS

  2002-CA-001402.pdf Size: 30 kb Date: 10/2/2003 TETRICK V. FRASHURE INSTRUCTIONS,  SEAT BELTS, COMPARATIVE FAULT, EXPERT FEES CA reversed and remanded case for new trial following a jury verdict rejecting his claim for personal injury damages suffered in an automobile accident based upon the case of Tuttle v. Perry, Ky., 82 S.W.3d 920 (2002), which was rendered by the Kentucky Supreme Court after the trial of this case. Two issues were raised which each by themselves warranted a reversal. The first dealt with the cross-examination of defendant's seat belt expert about his fees for testifying.  Defense attorney objected to the line of questioning, and the court sustained the objection. The ruling was proper at that time under Current v. Columbia Gas of Kentucky, Inc., Ky., 383 S.W.2d 139 (1964). Approximately four months after the trial, the Kentucky Supreme Court rendered its decision in the Tuttle case and overruled the Current case on the issue of the admissibility of compensation for expert witnesses. Tuttle, 82 S.W.3d at 924. The court in Tuttle agreed that "the amount of money a witness is paid for testifying in a particular case is unquestionably disclosable on cross-examination." Id. Further, the Tuttle court remanded that case for a new trial for that sole reason. Second, the instructions pertaining to the wearing of seatbelts as taken from Palmore were erroneous.  KRS 189.125(6) provides in relevant part that "[n]o person shall operate a motor vehicle manufactured after 1965 on the public roadways of this state unless the driver and all passengers are wearing a properly adjusted and fastened seat belt, unless the passenger is a child who is secured as required in subsection (3) of this section." This section of the statute does not impose a statutory duty to wear a seat belt on a passenger in a vehicle.  "In the absence of statute it is not our function to declare that the law requires, or that it does not require, the occupants of an automobile to wear seat belts." Wemyss, 729 S.W.2d at 179. '[T]he enumeration of specific duties is the exception to the rule, reserved for statutory duties, and the 'general rule for the content of jury instructions' is to couch same in the terms of the general duty[.]' Id. at 181, citing Rogers v. Kasdan, Ky., 612 S.W.2d 133, 136 (1981). Thus, as there is no statutory duty requiring a passenger in a vehicle to wear a seat belt, the court's instruction, as taken from Palmore's form book, was erroneously given." COMMENTARY:  There is also a good analysis of how the defense tried to skirt the expert fee based upon failure to preserve the issue via avowal and prejudice which was rejected by the CA. 2002-CA-001896.pdf Size: 33 kb Date: 10/2/2003 RENDERED: JULY 25, 2003; 10:00 a.m. ORDERED PUBLISHED: October 3, 2003; 10:00 a.m. COM. V. LONG CRIMINAL, DUI, Independent Blood Tests CA affirmed Circuit Court's reversal of District Court's order denying Defendant's motion to suppress. Issue on appeal:  In declining to allow Defendant the opportunity to telephonically contact a friend to bring monies to pay for an independent blood test, did the arresting officer deny Long of her right to proceed under KRS 189A.103?   Holding:   CA stated "considering the totality of the circumstances in this case, we believe the police officer denied Long of her right to obtain an independent test because of a failure to make a reasonable effort to accommodate her right.  [W]e hold that a police officer has a duty to act reasonably under the circumstances, considering such factors as those outlined in the Buffington opinion. [State v. Buffington, Ga. App., 377 S.E.2d 548 (1989)].  These factors to be considered include, but are not limited to, the following: (1) availability of or access to funds or resources to pay for the requested test; (2) a protracted delay in the giving of the test if the officer complies with the accused's requests; (3) availability of police time and other resources; (4) location of requested facilities, e.g., the hospital to which the accused wants to be taken is nearby but in a different jurisdiction; (5) opportunity and ability of accused to make arrangements personally for the testing.  Conviction vacated and case remanded to District Court.

  
  

• Kentucky COURT OF APPEALS Decisions
  NOT TO BE PUBLISHED - Oct. 3,  2003
    

  AOC LINKS SUMMARIES OF DECISIONS

  2001-CA-000883.pdf Size: 25 kb Date: 10/2/2003 BARBOUR V. COM. CRIMINAL CA affirmed Defendant's conviction for Flagrant Non-Support and PFO 2.  TC properly permitted testimony by Sheriff.  Defendant was not entitled to directed verdict. 2001-CA-001248.pdf Size: 25 kb Date: 10/2/2003 BARLEY  V. COM. CRIMINAL CA affirmed Circuit Court's denial of Defendant's motion for relief pursuant to CR 60.03.  Appeal was in contravention of the finality provisions of RCr 11.42(3) and the reasonableness requirement of CR 60.02. 2002-CA-000559.pdf Size: 50 kb Date: 10/2/2003 I.K., A MINOR CHILD, ETC. V. JUDGE MICHAEL FOELLGER JUVENILES, WRIT OF PROHIBITION, RESTRAINING ORDER I.K., a minor child, contended district court exceeded its authority by entering an order requiring him to have no contact within 250 feet of the victim since it impermissibly conflicts with the conditions of placement imposed upon him by the Department of Juvenile Justice and requires him to leave his local high school, thus depriving him of his right to a free public education. CA held the district court was acting properly and within its authority by entering the no-contact order, but in the absence of sufficient factual findings, CA was unable to determine if the no-contact order impermissibly conflicts with the placement and treatment conditions imposed on I.K. by the Department of Juvenile Justice. Therefore, CA vacated and remanded to the circuit court for further findings of fact and conclusions of law. 2002-CA-000607.pdf Size: 23 kb Date: 10/2/2003 CAMPBELL V. HARDWICK WILLS AND ESTATES This case upheld the Circuit Court's summary judgment that a married couple had entered a valid contract not to revoke their joint will and that the surviving spouse's attempted will with a different disposition of assets was ineffective.  Although the law in this non-published opinion is not groundbreaking, it provides a good review of KRS 394.540 and reminds us that the existence of a contract can be a matter of law subject to summary judgment. 2002-CA-000714.pdf Size: 24 kb Date: 10/2/2003 SLOSS V. COM. CRIMINAL CA affirmed Defendant's convictions for possession of a firearm by a convicted felon and being a persistent felony offender in the second degree following a bench trial by Jefferson Circuit Judge Barry Willett .  Defendant was not entitled to a directed verdict as there was sufficient evidence of constructive possession.  Challenge to constitutionality of statute was not properly preserved for review. 2002-CA-000721.pdf Size: 30 kb Date: 10/2/2003 BUSH V. COM. CRIMINAL CA affirmed Defendant's court did not err when it refused Bush’s tendered duress and choice-of-evil instructions.  TC did not err in admitting photographs.  The delay in bringing Bush to trial, although unfortunate, was amply justified by events beyond the trial court’s control. Notwithstanding that delay, Bush’s trial was fundamentally fair. 2002-CA-000918.pdf Size: 33 kb Date: 10/2/2003 WATTS V. COM. CRIMINAL CA affirmed Circuit Court's denial of pro se Defendant's motion for relief pursuant to CR 60.02. 2002-CA-000971.pdf Size: 27 kb Date: 10/2/2003 BONNER V. BROWN NEGLIGENCE, JURY INSTRUCTIONS, HARMLELSS ERROR, APPEALS CA sustained jury instructions regarding duties and apportionment.    "We initially observe that appellant's brief does not comport with Kentucky Rule of Civil Procedure (CR) 76.12(4)(c)(v); hence, we must presume that the jury instructions were unpreserved. Upon review of the record, we are of the opinion that the jury instructions did not constitute substantial error under CR 61.02. We, thus, reject appellant's contention that the jury instructions constituted reversible error." Failure to give a "curative" instruction regarding other wrecks was harmless error. No abuse of discretion by judge for "'failing to read portions of depositions to the jury when the jury requested the depositions during deliberation.'  It is well-established that the trial court has wide discretion in determining whether to permit the rereading or replaying of certain testimony given at trial." Judge Johnson dissented on the issue of jury instruction noting that the instructions did not comport with those in Palmore and was not a standard instruction therefrom. "The Majority Opinion bases its affirmance of the trial court's judgment on its presumption that the jury instruction issue is unpreserved for appellate review because of the appellant's failure to comply with CR 76.12(4)(c)(v) and its conclusion that ''the jury instructions did not constitute substantial error under CR 61.02.'    . . . I agree that the error in jury instruction No. 3 was not preserved. . . . [but] the giving of instruction No. 3 rises to substantial error under CR 61.02."  J. Johnson stated the instruction was not consistent with the instruction provided in Kentucky Instructions to Juries and was also clearly contrary to established case law since a driver owes a duty to the "other driver" not just to himself. The instruction, however, was not preserved under the mandatory preservation requirements of CR 51(3) and did not affect the appellant's substantial rights.  "The jury instruction preservation cases make it clear that a party cannot have "two bites at the apple"--i.e., a party cannot sit back and allow the jury to be instructed erroneously in the hope of prevailing with the jury, and should he fail with the jury, then raise the unpreserved issue on appeal in an attempt to have a second bite with the jury. "One who participates in or invites an error may not complain. The maxim omnis consensus tollit errorem applies."  2002-CA-000978.pdf Size: 27 kb Date: 10/2/2003 HODGE V. LYNCH SUMMARY JUDGMENT, SUPPORTING AFFIDAVITS CA reversed summary judgment in favor of plaintiff on indebtedness ruling that opposition affidavits are permissible and not mandatory.  Plaintiff filed for SJ claiming debt and submitted affidavit for the amount of indebtedness.  Defendant filed response but no affidavit admitting liability but claiming lesser amount and tendering putative agreement.   The circuit court interpreted Gevedon v. Grisby, Ky ., 303 S.W.2d 282 (1957) to mean that if a party fails to file an affidavit in response to an affidavit, without stating why such affidavit could not be presented, summary judgment is appropriate. However, on its face, this rule merely permits a trial court to extend the time for obtaining affidavits, depositions, or discovery. CR 56.03 only says party MAY serve opposing affidavits.  TC did not address other requirement of no genuine issue of material fact either.  TC " erred when it held that Hodge was required to file a counter affidavit in order to overcome Lynch's summary judgment motion. The documentation attached to her response to the motion was sufficient to create a genuine issue of material fact as to the amount of the indebtedness. Specifically, Hodge attached documents to her response which were purportedly signed by Lynch wherein he acknowledged that the true amount of indebtedness was not reflected by Hodge's note to him." COMMENTARY:  Nice black letter law on summary judgment and the whipsaw of affidavits.  Judge Dyche, with CA, said majority opinion emphasize affidavits and that all that would have been needed were sworn statements. 2002-CA-001000.pdf Size: 27 kb Date: 10/2/2003 HAGAN V. TERRY CORPORATION, INC CIVIL PROCEDURE, MOTIONS IN LIM., EXPERTS, PARTIES,  IMPEACHMENT OF VERDICT This case was a discrimation action against an employer in which the jury ruled in favor of the employer.  Several procedural matters were raised on appeal.  CA did not find appellant prejudiced by motions in limine raised on morning of trial since one was granted in favor of the appellant and remainder deferred to trial.  Judge's ruling to exclude Dr. Slesnic for the appellant was harmless error (no deposition and he did not make it to the courtroom by the time plaintiff had presented all proof thus far) - Dr. Slesnic' testimony was to damages and since jury returned verdict on liability, the issue was moot.  Appellant's not entitled to retaliation instruction since never reported to the employer the harassment.  Dismissal of sole shareholder in the corporation was also permissible since plaintiffs did not sue the corporation and did not show shareholder was alter ego or sham, fraud, etc. (not to mention moot since no liability).   Denial of new trial was also affirmed.  Appellants sought to impeach verdict based upon affidavits from appellant and appellant's daughter that two jurors voted for the appellants and the verdict was signed unanimous.  However, the jury was polled individually.   "Generally, 'a verdict cannot be impeached by the testimony of a juror.' Doyle v. Marymount Hosp., Inc., Ky.App., 762 S.W.2d 813, 815 (1988). However, 'the affidavits of jurors are admissible to show a mistake in a verdict which had the effect of misrepresenting the jury's intention and finding.' City Taxi Serv., Inc. v. Gipson, Ky., 289 S.W.2d 723, 725 (1956). In the case sub judice, there were no affidavits from jurors. Rather, the affidavits were from individuals affiliated with the appellants' case. There is broad discretion in the trial court in granting a new trial on such grounds. Id. Considering the fact that the jurors were individually polled after the return of their verdict and the fact that the affidavits were not from the jurors themselves, we conclude that the court did not abuse its discretion in refusing to grant a new trial on this ground." 2002-CA-001186.pdf Size: 25 kb Date: 10/2/2003 CHANDLER V. COM. CRIMINAL CA affirmed Circuit Court's denial of pro se Defendant's motion to vacate pursuant to RCr 11.42 alleging ineffective assistance of counsel. 2002-CA-001234.pdf Size: 43 kb Date: 10/2/2003 LEXINGTON-FAYETTE URBAN COUNTY HUMAN RIGHTS COMMISSION, ETC. V.METRO MANAGEMENT, INC.  HOUSING DISCRIMINATION CA affirmed dismissal of housing discrimination claim by interracial couple as there was no genuine issue of material fact.   NOTE:   "In Mencer v. Princeton Square Apartments [228 F.3d 631, 634 (6th Cir.2000)], the United States Court of Appeals for the Sixth Circuit adapted the three-part evidentiary standard first articulated in McDonnell-Douglas Corp. v. Green, [411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)] to a fair housing claim brought under the FHAA. The Court listed the elements of a prima facie case of housing discrimination as follows:A prima facie housing discrimination case is shown when the plaintiff provides: (1) that he or she is a member of a racial minority, (2) that he or she applied for and was qualified to rent or purchase certain property or housing, (3) that he or she was rejected, and (4) that the housing or rental property remained available thereafter"   Mencer, 228 F.3d at 634-35 (citing Selden v. United States Department of Housing and Urban Development, 785 F.2d 152, 160 (6th Cir.1986).  2002-CA-001355.pdf Size: 34 kb Date: 10/2/2003 EQUITANIA INS. CO. V. SLONE & GARRETT, PSC LEGAL NEGLIGENCE, STARE DECISIS , COLLATERAL ESTOPPEL, JURY INSTRUCTIONS This case involved several issues in a legal malpractice claim resulting from a stock purchase agreement and litigation therefrom.  The first two claims of legal negligence were eliminated by the judge's ruling of the controlling contract, and the third issue was resolved in the lawyer's favor by the jury. The appellants did not preserve the issue on stare decisis and waived it at the legal negligence trial.   NOTES: "In Abuzant v. Shelter Ins. Co., Ky.App., 977 S.W.2d 259 (1998), this court held that the failure of a party to raise certain arguments before the trial court constituted a waiver of such arguments and precluded appellate review. Id. at 262. Similarly, in Kaplon v. Chase, Ky.App., 690 S.W.2d 761 (1985), this court stated that "if the trial court had no opportunity to rule on the question, there is no alleged error for this court to review." Id. at 763. We agree with Garrett that, because the Vimont Group did not raise the stare decisis argument before the trial court, the argument is not subject to our review." "Assuming, without deciding, that the Vimont Group preserved error in this regard, we nevertheless conclude that the doctrine of stare decisis is neither applicable nor grounds for reversal. "Under the doctrine of stare decisis, once a point of law has been established by a court, that point of law will, generally, be followed by the same court and all courts of lower rank in subsequent cases where the same legal issue is raised." 5 Am Jur 2d APPELLATE REVIEW § 559 (1995). Likewise, "[u]nder the doctrine of stare decisis, when a court has laid down a principle of law as applying to a certain set of facts, it will adhere to that principle and apply it to all future cases where the facts are substantially the same." 20 Am Jur 2d COURTS § 147 (1995). Kentucky courts follow the doctrine of stare decisis. See Yeoman v. Commonwealth, Health Policy Bd., Ky., 983 S.W.2d 459, 469 (1998). We conclude that Judge Adams was not bound by the doctrine of stare decisis to follow Judge Payne's interpretation of the contract. We know of no authority, nor has the Vimont Group cited us to any, that holds that one circuit judge is bound by a contract interpretation by another circuit judge. They are not the same court nor is one lower in rank to the other. Furthermore, to the extent that this court affirmed Judge Payne's ruling on appeal, it cannot serve as authority for the Vimont Group's argument because the opinion was unpublished. See CR  76.28(4)(c). Simply put, stare decisis does not apply in situations such as this." "We also reject the Vimont Group's argument that the doctrine of collateral estoppel bound Garrett to Judge Payne's interpretation of the contract. Under the doctrine of collateral estoppel, a judgment on the merits in a prior suit involving the same parties or their privies precludes relitigation of issues actually litigated and determined in the prior suit, regardless of whether it was based on the same cause of action as the second suit. Napier v. Jones, Ky.App., 925 S.W.2d 193, 196 (1996). Because Garrett and her law firm were not parties to the earlier suit, Judge Payne's ruling on the contract interpretation issue is not binding on them." 2002-CA-001476.pdf Size: 31 kb Date: 10/2/2003 OWEN V. COM. CRIMINAL CA affirmed Defendant's conviction for criminal facilitation to fraudulent use of a credit card over $100.00 and receiving stolen property over $300.00.  Prosecutor’s closing argument did not render Owen’s trial fundamentally unfair because there was no reasonable possibility that, but for those comments, the outcome of the trial would have been different.  TC properly permitted the Commonwealth to introduce evidence concerning witness's use of cocaine.  No error in apportioning restitution among co-defendants. 2002-CA-001742.pdf Size: 19 kb Date: 10/2/2003 PHOENIX HEALTHCARE OF KENTUCKY LLC V. KENTUCKY FARM BUREAU MUT. INS. CO. NO-FAULT, PIP, EXCLUSIVE REMEDY FOR PAYMENTS TO PROVIDERS KRS 304.39-210 and 220 are the exclusive remedy of a health care provider against a reparations obligor for late or non-payment of PIP or reparation benefits.  The delay for nonpayment of PIP is not actionable under KRS 304.12-230 of the Unfair Claims Settlement Practices Act and that KRS 446.070 does not entitled the health care provider to damages thereunder, including punitive damages. "It is well settled that "[w]here the statute both declares the unlawful act and specifies the civil remedy available to the aggrieved party, the aggrieved party is limited to the remedy provided by the statute ." Grzyb v. Evans, Ky., 700 S.W.2d 399, 401 (1985)." 2002-CA-001778.pdf Size: 31 kb Date: 10/2/2003 SPALDING V. HALL FAMILY LAW, CHILD SUPPORT Family court did not err in awarding child support to be paid by a defaulting party based upon the needs of the child and does not deviate from the child support guidelines. 2002-CA-001923.pdf Size: 18 kb Date: 10/2/2003 O'HAIR V. WELLS FUNERAL HOME PREMISES LIABILITY, SAFETY CODE VS. OPEN AND OBVIOUS CA reversed and remanded SJ back to TC on issues of material fact in wrongful death action where funeral home visitor fell down dark steps and died during visitation hours.  Although the TC found the decedent's "proceeding into darkness" to have been the cause of his death, the CA concluded "the condition of the funeral home, whether in violation of any safety codes or not, is such that a jury could find negligence by Wells which was a substantial factor in causing Jerry's death." 2002-CA-001977.pdf Size: 24 kb Date: 10/2/2003 SCHECKLES V. COM. CRIMINAL  CA affirmed TC's denial of Defendant's motion to withdraw guilty plea based upon newly discovered evidence. 2002-CA-002060.pdf Size: 29 kb Date: 10/2/2003 TRI-VALLEY PLASTICS, INC. V. HAMILTON MUT. INS. CO. INSURANCE,  This appeal arose from insurance disputed over business protection policy and a fire loss. Insured thought it was entitled to a greater sum than the insurer offered and instituted a declaration action and a breach of contract action with Unfair Claims Settlement Act and Consumer Protection Act allegations which were consolidated on appeal.  The CA affirmed in part, reversed in part, and remanded - the trifecta.  The insurance contract provided for arbitration, and the umpire's award of damages (which was less than the insurer actually paid) was held by the CA to have gone outside the terms of the contract regarding a loss so that this portion of the judgment was reversed. The summary judgment dismissing Tri-Valley's claim under the Consumer Protection Act was proper. KRS 367.220(1) sets forth the class of individuals who may bring actions for recovery of money or property under the Consumer Protection Act. In order "[t]o maintain an action alleging a violation of the Act, however, an individual must fit within the protected class of persons defined in KRS 367.220." Skilcraft Sheetmetal, Inc. v. Kentucky Mach., Inc., Ky.App., 836 S.W.2d 907, 909 (1992). Tri-Valley does not fit within the protected class of persons who may file claims under the act. See Gooch v. E.I. DuPont de Nemours & Co., 40 F.Supp.2d 857, 862 (W.D.Ky.1998), citing Aud v. Illinois Cent. R.R. Co., 955 F.Supp. 757, 759 (W.D.Ky.1997). Thus, we affirm that portion of the summary judgment. APPELLATE NIT-PICKING AGAIN:  (CR) 76.12(4)(c)(v) "Hamilton also argues that the issue of debris removal should not be considered by this court because Tri-Valley did not comply with Kentucky Rules of Civil Procedure (CR) 76.12(4)(c)(v) which requires that the portion of a brief containing arguments must begin with a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner. Although Tri-Valley's brief may have been lacking in this respect, we nonetheless exercised our discretion and reviewed the issue on the merits. See Kentucky Farm Bureau Mut. Ins. Co. v. Burton, Ky.App., 922 S.W.2d 385, 387 (1996). See also Cornette v. Holiday Inn Express, Ky.App., 32 S.W.3d 106, 109 (2000)." 2002-CA-002093.pdf Size: 23 kb Date: 10/2/2003 SIMPSON V. MORGAN, WARDEN CRIMINAL CA affirmed Circuit Court's dismissal of inmate's motion for declaratory judgment challenging the constitutionality of Correction’s Policy and Procedure CPP 17.1(8), which provides that "[a]n inmate shall not be permitted to own or possess any role playing games, including Dungeons and Dragons, Vampires, etc."  The regulation was valid as it is reasonably related to legitimate penological interests. 2002-CA-002124.pdf Size: 25 kb Date: 10/2/2003 CHAPMAN V. KENTUCKY STATE UNIVERSITY REVERSE RACIAL DISCRIMINATION, GOV'T EMPLOYMENT  Affirmed summary judgment dismissing a former employee's racial discrimination claim against Kentucky State University (KSU) alleging reverse discrimination stating Chapman failed to satisfy his burden of establishing a prima facie case of reverse discrimination.  Although Chapman insisted his claim wass not a reverse discrimination case, CA was not persuaded by this assertion, since the term "reverse discrimination" simply refers to a claim in which, as here, "a white employee alleges to be the victim of discrimination."  NOTES:  Here is some 'black letter' law on the subject as contained in this opinion, or a 'one-minute' cle compliments of Judge Paisley: "Issues concerning the KCRA and alleged reverse racial discrimination were recently addressed in Jefferson County v. Zaring, Ky., 91 S.W.3d 583 (2002). There, the supreme court noted that because the KCRA "was enacted in 1966 to implement in Kentucky the Federal Civil Rights Act of 1964," and because the provisions of the two acts are "virtually identical," we must give consideration to federal courts' interpretation of the federal act. Zaring noted that the following tripartite analysis has been established for reviewing claims of employment discrimination based on race:  "First, the plaintiff must establish a prima facie case of discrimination. Second, if the plaintiff carries his initial burden, the burden shifts to the defendant to 'articulate some legitimate nondiscriminatory reason' for the challenged workplace decision. Third, if the defendant carries this burden, the plaintiff has an opportunity to prove that the legitimate reasons the defendant offered were merely a pretext for discrimination."  Zaring, id. at 590 (quoting Notari v. Denver Water Dept., 971 F.2d 585, 588 (10th Cir.1992), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973)). Zaring further quoted McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824, in noting that the first portion of a plaintiff's burden, that of establishing a prima facie case of discrimination, may be satisfied "by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." 91 S.W.3d at 590-91. This analysis framework "must be appropriately adjusted" in reverse discrimination cases which result from affirmative action plans. Id. at 591. Thus, in a reverse discrimination claim, the first prong of a prima facie case " 'is established upon a showing that background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority.' " Id. at 591 (quoting Murray v. Thistledown Racing Club, Inc., 770 F.2d 63, 67 (6th Cir.1985)). The second prong of a prima facie reverse discrimination case is established upon a showing "that the employer treated differently employees who were similarly situated but not members of a protected class." Pierce v. Commonwealth Life Insurance Co., 40 F.3d 796, 801 (6th Cir.1994). See also Zambetti v. Cuyahoga Cmty. College, 314 F.3d 249 (6th Cir.2002)." 2002-CA-002250.pdf Size: 18 kb Date: 10/2/2003 VOUTE V. COM. CRIMINAL CA affirmed Circuit Court's denial  of Defendant's motion for post-conviction relief alleging that his 1992 convictions were used improperly to enhance the sentence he was then serving in Texas. 2002-CA-002259.pdf Size: 26 kb Date: 10/2/2003 COM. V. FORD CRIMINAL CA reversed Jefferson Circuit Judge Barry Willett's order dismissing with prejudice the indictment against Ford for Robbery.  CA held that the TC did not have authority to dismiss following alleged victim's failure to appear at two suppression hearings.   Note:  I've noticed the Jefferson County Attorney and Commonwealth's Attorney taking a more aggressive posture concerning the dismissal of cases by Judges.  The majority of such cases involve the alleged victim's repeated failure to appear in court.  I'm not sure what the prosecution gains by appealing these dismissals (they will not proceed to trial without essential witnesses); however, I suspect the appeals are meant to send a message to Judges who dare move the docket. 2002-CA-002363.pdf Size: 20 kb Date: 10/2/2003 TAYLOR V. COM. CRIMINAL - Miranda warning In a 2-1 decision, CA affirmed TC's denial of Defendant's motion to suppress.  CA found that questioning of Defendant did not require Miranda warnings because he was not undergoing "formal interrogation".   Note:   This decision is begging to be reversed.  Somehow, the CA found there was no custodial interrogation despite the fact that Defendant was handcuffed and obviously not free to leave.  The Commonwealth proffered "safety concerns" as their explanation for the handcuffs, but I don't think this would hold water with the Supreme Court.  2002-CA-002465.pdf Size: 19 kb Date: 10/2/2003 BRANDON V. CHANDLER CRIMINAL, PRISON DISCIPLINE CA affirmed Circuit Court's dismissal of pro se inmate's petition for declaratory judgment.  Inmate was not denied procedural due process and equal protection in his disciplinary hearing. 2003-CA-000128.pdf Size: 23 kb Date: 10/2/2003 HURLEY V. HUSKY COAL CO.  WORKERS COMP CA held "substantial evidence simply did not support the ALJ's opinion regarding the nonexistence of a permanent preexisting active impairment. The board therefore did not err by vacating and remanding the ALJ's opinion for more specific findings of fact." 2003-CA-000542.pdf Size: 21 kb Date: 10/2/2003 MOORE V. MARTIN COUNTY COAL CORP. WORKERS COMP CA affirmed dismissal of Moore's workers' compensation claim, alleging a total and permanent physical and mental disability from an August 2001 work-related injury. "The standard of review when the party that bears the burden of proof is unsuccessful before the ALJ is whether the evidence compels a different result. Hill v. Sextet Mining Corp., Ky., 65 S.W.3d 503 (2001).  It is of no avail to show that there was some evidence of substance that would have justified a finding in the party's favor. The party must show that the evidence was such that the finding against it was unreasonable. Special Fund v. Francis, Ky., 708 S.W.2d 641 (1986). We further note that he ALJ, not the reviewing court, has sole discretion to determine the quality, character, and substance of the evidence. Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418, 419 (1985). While the medical testimony presented by each party was in opposition, Moore fails to establish that the ALJ's acceptance of the evidence presented by Martin County Coal Company was unreasonable." COMBS, Judge, Dissenting: "I must dissent. The evidence of some injury (either physical or psychological or a combination of both) in this case is overwhelming and in my opinion compels a result other than dismissal in toto. Even in light of the tough standard of review imposed by Western Baptist v. Kelley, Ky., 827 S.W.2d 685 (1992), I believe that a different outcome is both warranted and required." 2003-CA-000875.pdf Size: 19 kb Date: 10/2/2003 LEXMARK V. BURNAM WORKERS COMP, STATUTE OF LIMITATIONS, ACCRUAL CA held the 2-year statute of limitations for filing a workers' compensation claim accrues when claimant is diagnosed with carpal tunnel syndrome, and not when a physician placed limitations on the claimant to avoid assembly work. "The date for the clocking of the statute of limitations begins when the disabling injury becomes manifest. Randall Co. v. Penland, Ky.App., 770 S.W.2d 687 (1989). In Alcan Foil [Products v. Huff, Ky., 2 S.W.3d 96 (1999)] ..., the Kentucky Supreme Court held the meaning of the phrase 'manifestation of disability' refers to the physical symptoms that lead a worker to discover that a work related 'injury' has been sustained." "While Burnam's testimony does evidence that she suspected her pain, at least in part, was a result of her work at Lexmark, a worker is not expected to self-diagnose. Hill v. Sextet Mining Corp., Ky., 65 S.W.3d 908 (2001). There was substantial evidence to support the ALJ's conclusion that Burnam did not know her injury was caused by work until she was diagnosed with carpal tunnel syndrome in June 2000."

KENTUCKY FEDERAL DECISIONS 
October 6 - 10, 2003

• Western District Court - Kentucky
  
  

  Sylvia P. Nails v. Chief Dale Riggs   This case involves the application of Federal Rule of Civil Procedure 15(c)(3). Plaintiff Sylvia Nails amended her original complaint after the statute of limitations had expired to state that she was suing Defendant Chief Dale Riggs in his individual and official capacities for violations of 42 U.S.C. § 1983. Defendant Riggs filed a partial motion for summary judgment, arguing that Plaintiff?s claims against him were time-barred. The Court concluded that Plaintiff?s amended complaint ?related back? under Rule 15(c)(3) and that she was therefore permitted to amend her complaint: (1) Plaintiff?s claims in her amended complaint ?arose out of the conduct, transaction, or occurrence set forth? in her original complaint; (2) Defendant received notice under the ?course of proceedings? test applied by the Sixth Circuit that he was being sued in his individual capacity such that he was not prejudiced by the changes to the complaint; and (3) Defendant probably knew or should have known that Plaintiff would bring suit against him personally since Plaintiff?s failure to plead ?individual capacity?on the original complaint was a ?mistake.? Since Plaintiff?s amended complaint related back, the Court denied Defendant?s motion.

• Sixth Circuit Court of Appeals 
  
  

  Opinion	DocketSheet	Pub Date	Short Title/District
  03a0354p.06	01-2590	2003/10/06	USA v. Rodriguez-Suazo     Eastern District of Michigan at Detroit
  03a0355p.06	01-2274	2003/10/06	Gordon v. Nextel Comm     Eastern District of Michigan at Detroit
  03a0356p.06	02-5290	2003/10/06	USA v. Wilson     Western District of Tennessee at Jackson
  03a0357p.06	02-5089	2003/10/07	Krilich v. Fed Bur of Prisons     Eastern District of Kentucky at Lexington
  03a0358p.06	01-6541	2003/10/07	Stamtec Inc v. Anson Stamping Co     Middle District of Tennessee at Nashville
  03a0358p.06	01-6582	2003/10/07	Stamtec Inc v. Anson Stamping Co     Middle District of Tennessee at Nashville
  03a0359p.06	01-1955	2003/10/08	Miller v. Champion Enter     Eastern District of Michigan at Detroit
  03a0360p.06	01-2561	2003/10/08	Amway Corp v. Procter & Gamble     Western District of Michigan at Grand Rapids
  03a0361p.06	02-5573	2003/10/09	USA v. Jenkins     Western District of Tennessee at Jackson
  03a0363p.06	02-3482	2003/10/10	Neinast v. Bd Trustees Columbus     Southern District of Ohio at Columbus
  03a0364p.06	02-1288	2003/10/10	John Hancock Fncl v. Old Kent Bank MI Inc     Eastern District of Michigan at Detroit
  03a0364p.06	02-1307	2003/10/10	John Hancock Fncl v. Old Kent Bank MI Inc     Eastern District of Michigan at Detroit
  03a0365p.06	02-3016	2003/10/10	Le-Ax Water District v. Athens     Southern District of Ohio at Columbus
  03a0366p.06	02-3357	2003/10/10	Cavin v. Honda of America     Southern District of Ohio at Columbus

Cases In Context - a/k/a "The One-Minute CLE"

Summary Judgment Primer on Proof and Affidavits
The core of this CLE comes from Judge Buckingham in Hodge v. Lynch, Not Reported in S.W.3d, Ky.App.,2003, Oct. 3, 2003 - 2002-CA-000978.pdf.  Let us not forget that it is not the province of the Court of Appeals to make law but simply find it and apply it. Therefore, their opinions can be a wealth of information on core topics summarizing what may be obvious to some but a revelation to the rest of us.  A virtual CLE in your email box from your local neighborhood court of appeals.  Which is why we are ever so vigilant to hold them accountable when their crystal ball goes on the fritz. ;-)

• CR 56 - Summary Judgment
• CR 56.03 MOTION AND PROCEEDINGS THEREON [summary judgement]
  The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.
• Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476, 480 (1991).
  "[T]he proper function of summary judgment is to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor."  "The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor."  Furthermore, "a party opposing a properly supported summary judgment motion cannot defeat it without presenting at least some affirmative evidence showing that there is a genuine issue of material fact for trial."  
• Scifres v. Kraft, Ky.App., 916 S.W.2d 779, 781 (1996).
  "The standard of review on appeal of a summary judgment is whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law. There is no requirement that the appellate court defer to the trial court since factual findings are not at issue" [citations omitted]."   "Where the relevant facts are undisputed and the dispositive issue becomes the legal effect of those facts, our review is de novo."
• Goldsmith v. Allied Building Components, Inc., Ky., 833 S.W.2d 378, 381 (1992).
  There is no requirement that the appellate court defer to the trial court since factual findings are not at issue in review of summary judgment.
• Davis v. Dever, Ky.App., 617 S.W.2d 56, 57 (1981)
  CR 56.03 provides that a party opposing a motion for summary judgment may file opposing affidavits, but does not require him to do so." 
• Hodge v. Lynch - Not Reported in S.W.3d, Ky.App., Oct. 3, 2003 - 2002-CA-000978.pdf  
  The rule makes it permissible for the party opposing summary judgment to file affidavits. However, we do not read the rule to require opposing affidavits. Indeed, Kentucky case law is to the contrary. 
  CR 56.06 states: Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just. The circuit court interpreted this rule to mean that if a party fails to file an affidavit in response to an affidavit, without stating why such affidavit could not be presented, summary judgment is appropriate. However, on its face, this rule merely permits a trial court to extend the time for obtaining affidavits, depositions, or discovery.  Kentucky case law supports our view that evidence opposing a properly supported summary judgment motion need not necessarily be in the form of an affidavit.
• Gevedon v. Grisby, Ky ., 303 S.W.2d 282 (1957)
  An affidavit was sufficient to overcome an allegation in a complaint. 
• Hartford Ins. Group v. Citizens Fidelity Bank & Trust Co., Ky.App., 579 S.W.2d 628, 631 (1979), citing Hayes v. Rodgers, Ky., 447 S.W.2d 597 (1969).
  "[T]he party opposing the motion for summary judgment may not rely upon his pleadings alone to make an issue of fact, but is required in the proper case to make some showing to offset the impact of the matters presented in support of the motion." 
• Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., Ky., 807 S.W.2d 476, 480 (1991), citing Paintsville Hosp. v. Rose, Ky., 683 S.W.2d 255 (1985).
  CR 56.03 provides that summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. A well-supported motion for summary judgment can terminate litigation when, as a matter of law, it appears that it would be impossible for the responding party to produce evidence at trial warranting a judgment in its favor.  A party opposing a properly supported summary judgment motion cannot defeat it without presenting at least some affirmative evidence showing that there is a genuine issue of material fact for trial. 
• Huddleston v. Hughes, Ky.App., 843 S.W.2d 901, 903 (1992)
  Summary judgment must be granted "only when it appears impossible for the nonmoving party to produce evidence at trial warranting a judgment in his favor ...." 
• Conley v. Hall, Ky., 395 S.W.2d 575 (1965)
   "[A] party opposing a motion is not limited to the filing of affidavits." "[W]e think it only sensible to construe the word 'affidavits' in CR 56.03 as including any other pertinent materials which will assist the court in adjudicating the merits of the motion." 
• Neal v. Welker, Ky., 426 S.W.2d 476 (1968)
  When the moving party has presented evidence showing that despite the allegations of the pleadings there is no genuine issue of any material fact, it becomes incumbent upon the adverse party to counter that evidentiary showing by some form of evidentiary material reflecting that there is a genuine issue pertaining to a material fact. See also, Tarter v. Arnold, Ky., 343 S.W.2d 377.  (Note - The court in Neal did not state that counter affidavits were necessarily the only form of evidentiary material required to counter a properly support summary judgment motion.)
• Continental Cas. Co. v. Belknap Hardware & Mfg. Co., Ky., 281 S.W.2d 914 (1955)
  The party moving for a summary judgment has the burden of establishing that no genuine issue as to any material fact exists and also that he is entitled to judgment as a matter of law. If uncontroverted affidavits which clearly disclose the facts show that a genuine issue does not exist, the opposing party has an obligation to do something more than rely upon the allegations of his pleading. Since the moving party has the burden, he must make a prima facie showing that would entitle him to a summary judgment. The opposing party is then required by counter-affidavit, or otherwise, to show that evidence is available justifying a trial of the issue involved. (Note, it is important to note that the court in Continental Cas. Co. did not limit evidentiary material opposing a properly supported summary judgment motion to counter affidavits.)
• Collins v. Duff, Ky., 283 S.W.2d 179 (1955)
  "We think that on a motion for summary judgment the court is entitled to consider any evidentiary matter that has been presented to the court at any stage of the proceeding." 
  

• Disclaimer at www.LouisvilleLaw.com/disclaimer.htm
  
• The Content contained on the Web site has been prepared as a service to its readers and the Internet community and is not intended to constitute legal advice. We have used reasonable efforts in collecting, preparing and providing quality information and material, but do not warrant or guarantee the accuracy, completeness, adequacy or currency of the information contained on or linked to the Web site on in this e-mail. Users of information from the Web site or e-mail or links do so at their own risk.   
  
• The following warning is found at the KyCourts.net site maintained by the Administrative Office of the Courts relating to the decisions that we link to:
  

  "Unpublished Opinions

  This web site [www.KyCourts.net] contains both published and unpublished opinions of the Kentucky Supreme Court and Kentucky Court of Appeals. First, opinions that are labeled "NOT TO BE PUBLISHED" shall never be cited or used as authority in any other case in any court of this state. CR 76.28(4)(c). This is true even after the unpublished opinions become final. Secondly, although opinions labeled "TO BE PUBLISHED" may be cited as authority in any court of the Commonwealth of Kentucky, the opinions shall not be cited until all steps in the appellate process have been exhausted and they become final. As of the date Court of Appeals opinions were placed on the web site, none were final."

  
  

• Thank you, LouisvilleLawWire

• Click here for list maintenance (like you want to receive these).  
  
• Forward to some folks in your mailbox.