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• "One-Minute" CLE - don't want to spoil this one for you, but we got a few cases on spoliation of evidence - or what happens when the other side not only hides the ball but they destroy it to!

Decisions in Brief

• Daddy pays support even when kids in the care of the state (or locked up for that matter)

• Search incident to arrest encompasses methamphetamine hidden inside a vase

• Fiscal court must be fair and impartial in zoning decisions

• Railroad case gets off-track during discovery and spoils it for the plaintiffs when evidence destroyed

• If at first you don't succeed try, try again, as criminal defendant finally gets his new trial after three rounds through the appellate courts

• Plaintiff bites the good hands that feed him in late PIP payments for dental work

• Title to property does not dictate marital interest

• False workers comp claim precludes protection from job termination - you lie, you cry

• Judge's flip flops on directed verdict and judgment NOV not abuse of discretion - or judges can change their mind without being abused

• Disabled wife gets maintenance

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KENTUCKY APPELLATE DECISIONS 
October 6-10, 2003

• Kentucky SUPREME COURT Decisions 
  PUBLISHED - Oct. 7, 2003
  

  AOC LINKS SUMMARIES OF DECISIONS

  1999-SC-001055-DG.pdf Size: 3248 kb Date: 10/8/2003 FENWICK V. FENWICK FAMILY LAW, CHILD CUSTODY Modified October 8, 2003, previously summarized.

• Kentucky SUPREME COURT Decisions
  NOT TO BE PUBLISHED - October 7, 2003
   

  AOC LINKS SUMMARIES OF DECISIONS

  2002-SC-000867-WC.pdf Size: 823 kb Date: 10/8/2003   LAUREL COOKIE FACTORY V. FORMAN WORKERS COMPENSATION This was previously summarized and was modified October 7, 2003.

• Kentucky COURT OF APPEALS Decisions
  PUBLISHED - October 10,  2003
    

  AOC LINKS SUMMARIES OF DECISIONS

  2001-CA-002114.pdf Size: 25 kb Date: 10/8/2003 R.D.B. V.  S.M.B. CHILD SUPPORT  It is proper for trial court to order a father to pay child support for child who is in rehab program at the Department of Juvenile Justice.  Court has broad discretion in matters of child support and reviewing court will provide relief only where there has been an abuse of that discretion.  Wilhoit v. Wilhoit, Ky., 521 S.W.2d 512 (1975).  Court of Appeals reasoned that just because child is in care of state or state agency, this does not take away the father's duty to care for the child.  The Court of Appeals likened this case to that of Garver v. Garver, 981 P.2d 471 (Wyo. 1999) where the Wyoming Supreme Court held that a child's incarceration does not act to relieve the parents of their duty of support, a duty that arises from both statute and common law. 2001-CA-002262.pdf Size: 61 kb Date: 10/8/2003 DAVIS V. COM. CRIMINAL - Search & Seizure CA affirmed TC's denial of Defendant's motion to suppress drug evidence seized from his home.  Here, two officers went to the mobile home of the Defendant upon learning that a suspect with an outstanding arrest warrant resided there.  Upon knocking, an officer heard a voice telling him to come inside.  Once inside, both officers smelled burnt marijuana and noticed loaded weapons and burnt marijuana cigarettes in the dwelling.  The Defendant and another individual were then placed under arrest.  The officers then proceeded to search the home for the individual with the outstanding arrest warrant and for the stated purpose of securing the area.  In the bedroom closet, the officers discovered a marijuana growing operation.  They also found various drug paraphernalia and loaded weapons in plain view.  Later, they discovered methamphetamine in a small ceramic container 8-10 feet from where the Defendant was originally sitting.  Davis filed a motion to suppress claiming the search did not fit within any recognized exception to the warrant requirement.   First, the CA ruled the bedroom search was proper under the "safety check" exception to the warrant requirement.  The CA relied upon Commonwealth v. Elliott , Ky.App., 714 S.W.2d 494 (1986), in utilizing the " serious and demonstrable potentiality for danger" test.  Specifically, the "safety check" exception was applicable because the presence of a loaded handgun, rifles, a shotgun, drugs, and various individuals suspected of criminal activity constituted a "serious and demonstrable potentiality for danger".   Next, the CA turned to the more difficult issue of the methamphetamine seized from the ceramic container.  CA held the search was justified pursuant to the "search incident to arrest" exception to the warrant requirement because the container was within the Defendant's immediate control.  In Chimel v. California , 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) , the  U.S. Supreme Court stated "[t]he constitutionality of a search incident to an arrest turns upon whether the area searched is ‘within [the arrestee’s] immediate control’ – construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence."  The ceramic container was within the Defendant's immediate control, and thus the search was proper.  This decision provides a good black letter analysis of applicable federal case law.   2002-CA-001081.pdf Size: 54 kb Date: 10/8/2003 HILLTOP BASIC RESOURCES, INC. V. COUNTY OF BOONE, KY ZONING The Planning Commission rejected Developer's application for a zoning map amendment.  However, when the staff presented proposed findings of fact for denial, the Commission reversed its direction and voted to approve the application.  The Fiscal Court conducted an argument type hearing after which it adopted the findings of fact originally presented to the Planning Commission by its staff, rejecting the application.  The Circuit Court found that the Fiscal Court's Action was neither arbitrary nor erroneous as a matter of law and that Developer was not denied due process.   Developer then appealed again claiming that: 1.  The Fiscal Court failed to make adequate findings of fact; 2.  The findings of fact made were not supported by substantial evidence; and 3. Developer was otherwise deprived of due process. Developer asked that the court to issue an order declaring that the application be approved under KRS 100.211, which states that the Fiscal Court must take final action upon a proposed zoning map amendment within 90 days from the date of final action by the Planning Commission or the recommendation of the Commission will be automatically enacted. Developer alleged that the Fiscal Court failed to provide an unbiased and impartial tribunal.  Based on statements of two Fiscal Court members, the Court agreed.  It stated that an "unbiased decision-maker is the critical component of fundamental fairness, the 'sine qua non' of Due Process."  It concluded that, "blatant revelations of personal bias indicating prejudgment of an issue in a pending case are wholly repugnant to the guarantee of fundamental fairness." The Court reasoned that an impartial observer could reasonably conclude that members of the Fiscal Court had judged the facts as well as the law of the case in advance of the hearing.  The bias revealed by the Commissioner's comments was sufficient to deprive the Developer of due process.  "[V]owing at a prior hearing to 'never vote for a mine in this area of Boone County' negates any vestige of impartiality." The Court went on to state that unequivocal comments indicating a fixed intent as to a pending application cannot be justified or explained away.  Interestingly, it also stated that it did not base its opinion alleged "improper ex parte contact." The Court remanded the case to the Circuit Court with the direction that it remand to the Fiscal Court for a proper hearing.  The Court rejected Developer's apparent argument that the Fiscal Court's failure to provide a fair hearing caused the zone change to become effective as a matter of law under KRS 100.211(7), which requires a Fiscal Court to act within 90 days of receiving a planning commission's recommendation. The dissent by Judge Knopf argues that when a decision to "grant or deny a map amendment is supported by substantial evidence, the courts should not be called upon to second-guess the motivations of the local legislatures unless a clear conflict of interest is alleged."   The dissent found the difference between egislative and adjudicative actions to be significant in the determination of unreasonable bias.   The judge views the decision to rezone a particular piece of property as a legislative function.  As such, it is permissible, for the commissioner to have a prejudgment of the case, since the commissioner was elected to uphold this judgment. The dissent argues that even if the decision is viewed as adjudicatory, it is neither prudent nor realistic to attempt to remove all problems of bias.  While lamenting the lack of clear standards for determining personal bias, the dissent argues that the court should not be put in the position of "second-guessing the motivations of local legislatures, particularly where the local legislator has no way of knowing if he or she crossed the line."  In fact, the dissent points out that Kentucky has not espoused the view of the consideration of a map amendment as purely adjudicatory.  "A local legislative body is not required to grant a rezoning application merely because a request is in accordance with a comprehensive plan or its recommended land use element."  The dissent concludes that due to the legislative nature of the Fiscal Court, it cannot be held to a strict standard of judicial disinterestedness. COMMENT: The opinion is a cautionary tale for elected officials who want to reassure constituents about how they stand before the hearing is held.

• Kentucky COURT OF APPEALS Decisions
  NOT TO BE PUBLISHED - October 10 , 2003

AOC LINKS SUMMARIES OF DECISIONS

2001-CA-002121.pdf Size: 57 kb Date: 10/8/2003 BANDY V. CINCINNATI, NEW ORLEANS AND TEXAS PACIFIC RAILWAY SPOLIATION OF EVIDENCE, DISCOVERY ABUSE This case arises from a car which failed to "beat" the train at a railroad crossing and was struck by the train going 52 mph.  A wrongful death action followed by the estate. TC gave a spoliation instruction for various discovery abuses by the railroad, but did not grant summary judgment or direct a verdict in favor of the decedent's estate for those discovery abuses.  Matter went to the jury which ruled 9-3 in favor of the railroad.  Where the issue of destroyed or missing evidence has arisen, Kentucky has chosen to remedy the matter through evidentiary rules and "missing evidence" instructions. CA found no abuse of discretion by TC. COMMENT:  This case has an excellent summary of the issues that arise in train crossing cases - materials to request in discovery, preemption issues under federal law, and when you go up against the railroad don't let your case get off track! Preemption:  "The appellees claimed the allegations concerning warning devices and safety precautions were preempted by federal law pursuant to the Federal Railroad Safety Act of 1970 (FRSA) [49 U.S.C. §§ 20101 to 21311. The FRSA was previously codified at 45 U.S.C. § 434, et seq. On July 5, 1994, Pub.L. No. 103- 272 § 7(b), 108 Stat. 1379 (1994), the former version of the FRSA, was repealed, amended, and moved to 49 U.S.C. §§ 20101 to 21311] and the Highway Safety Act of 1973(HAS), which, among other things, created the Federal Railway-Highway Crossings Program (Crossings Program). [See 23 U.S.C. § 130, et seq.]" Interrogatories and requests for production of documents: "In particular, Bandy requested transcripts of the dispatcher tape generated on the date of the accident; any time tables, bulletins, notices, track warrants, slow orders, special orders, superintendent orders, and train orders in effect on the date of the accident; any documents evidencing CNO & TP's safety programs in effect at the time of the collision; all grade crossing safety manuals, safety procedures, inspection procedures, maintenance procedures, and recommendations published by CNO & TP for a period of ten years preceding the accident; and all documents detailing or describing any grade crossing safety and improvement programs initiated by CNO & TP for a period of ten years prior to the accident." And a second set wherein "Bandy requested the track volume records for the Kearney Hills railroad crossing and the minutes for CNO & TP's grade crossing safety committee meetings for the three years prior to and six months following the collision." Spoliation Instruction:  "During the trial you have heard reference to documents that were not retained by the railroad despite its knowledge of the claim of the plaintiff, Nita Bandy, administratrix of the estate of Russell D. Bandy. You may but are not required to infer that had these documents been retained by the railroad and produced here at trial that these documents would have been adverse evidence to the railroad and favorable to the plaintiff." 001-CA-002268.pdf Size: 27 kb Date: 10/8/2003 MEEK V. MARTIKI COAL CORP. WORKERS COMP, EXCLUSIVE REMEDY, UP THE LADDER This appeal arises from a summary judgment in a wrongful death action.  CA affirmed dismissal holding that based on an "up the ladder" employer, the incident was covered exclusively by the Kentucky Workers' Compensation Act. A "labor service company that provides its employees with workers' compensation coverage is a subcontractor and does not retain for its employees, the right to sue the contracting business (which is a contractor under KRS 342.610(2)) for torts committed by the contracting business or its employees." 2002-CA-000247.pdf Size: 31 kb Date: 10/8/2003 ROBERTS V. NELSON DEPOSITION IRREGULARITIES, WAIVER CA reversed and remanded for new trial when trial court abused its discretion in excluding the doctor's deposition for errors or irregularities in its signing and filing since these errors were waived and not raised until trial.  If the deposition had been allowed, there is a substantial probability that Appellant's case would have been decided by the jury on its merits. The civil "rules should be applied to provide for a just determination on the merits, rather than to use a technicality to work a forfeiture."  Excluding the deposition was a substantial error resulting in a manifest injustice.  2002-CA-000358.pdf Size: 26 kb Date: 10/8/2003 BROWNING V. COM. CRIMINAL - Search & Seizure CA affirmed TC's denial of Defendant's motion to suppress alleging invalid consent.  Defendant's claim that he could not give valid consent to search the premises because he had no ownership interest in the property was without merit because Defendant shared common authority.  Officer did not exceed scope of consent to search. 2002-CA-000440.pdf Size: 17 kb Date: 10/8/2003 WEBSTER V. COM. CRIMINAL CA affirmed Defendant's conviction for Bail Jumping.  CA could not consider Defendant's argument that conviction violated double jeopardy principles as there was no contempt order in the record. 2002-CA-000625.pdf Size: 69 kb Date: 10/8/2003 HAMILTON V. HAMILTON DIVORCE, MAINTENANCE - DISABLED SPOUSE  Disabled wife (who received over $2,000 per month in social security and disability payments) was entitled to maintenance in the amount of $400.00 per months from ex-husband (who makes between $50,000-$60,000) when 1.) she satisfied the prerequisite for an award of maintenance under KRS 403.200(1) and 2.) the trial court considered the factors contained in KRS 403.200(2).   2002-CA-000698.pdf Size: 24 kb Date: 10/8/2003 MANSON V. BROWN-FORMAN CORP. WORKERS COMP, WRONGFUL TERMINATION CLAIM CA affirmed SJ dismissing worker's claim that he was wrongfully terminated.   Under Kentucky law, termination of an employee for misrepresenting a workers' compensation claim does not give rise to a civil cause of action. KRS 342.197 gives rise to a civil cause of action where an employee suffers retaliation for pursuing a lawful workers' compensation claim. Here the worker did not pursue a lawful claim and was therefore rightfully terminated.  COMMENT:   The summary is a little cryptic.  What really happened was the worker had a non-work-related car accident and then submitted it as a workers comp claim. While out totally disabled he was found doing roofing work.  Employer fired him for the bogus claim. Result, no wrongful termination here. You can't fake a claim and then cry foul when fired. 2002-CA-000944.pdf Size: 24 kb Date: 10/8/2003 MILLER V. COM. CRIMINAL  CA affirmed Defendant's conviction for two counts of 1st degree trafficking in a controlled substance and one count of being a PFO 1.  TC properly denied Defendant's motion for a suppression hearing.  Chain of custody was sufficient.  TC did not err in joining offenses and refusing to grant a continuance. 2002-CA-000975.pdf Size: 39 kb Date: 10/8/2003 FUSTON V. COM. CRIMINAL   CA affirmed Defendant's conviction for 1st degree Manslaughter.  Jury instructions were not improper and issue was not preserved for review.  Defendant was not entitled to directed verdict. "Only in the unusual case in which the evidence conclusively establishes justification and all of the elements of self-defense are present is it proper to direct a verdict of not guilty." West v. Commonwealth, Ky., 780 S.W.2d 600, 601 (1989);  Taul v. Commonwealth, Ky., 249 S.W.2d 45, 47 (1952). 2002-CA-001422.pdf Size: 18 kb Date: 10/8/2003 KEENE V. COM. CRIMINAL CA affirmed Defendant's conviction for trafficking in cocaine and being a PFO 1.  Witness' mention of Defendant's mug shot was improper, but TC's admonition cured any error. 2002-CA-001426.pdf Size: 22 kb Date: 10/8/2003 WILSON V. RUSSELL JUDGMENT NOV, NO ABUSE IN GRANTING! CA did not abuse it's discretion in granting judgment NOV after it reconsidered its previous ruling denying a directed verdict for the plaintiff AFTER the jury returned a verdict for the defendant. "We agree with the trial court that it should have granted Russell's directed-verdict motion and therefore conclude that its grant of his motion for judgment N.O.V. was appropriate." - This was a personal injury action claiming use of a ladder not suitable for the scaffolding resulting in plaintiff falling and injuring his heel. 2002-CA-001427.pdf Size: 20 kb Date: 10/8/2003 COCHRAN V. COM. CRIMINAL  CA affirmed Defendant's conviction for trafficking in a controlled substance within one thousand yards of a building used primarily for classroom instruction.  Building properly qualified under statute. 2002-CA-001453.pdf Size: 27 kb Date: 10/8/2003 DIERIG, LEGAL GUARDIAN V. SHAYA, INC. LIABILITY FOR SERVING ALCOHOL TO MINOR IN MVA CA affirmed SJ dismissing claims against several individuals somewhat involved in the obtaining of alcohol by a person under 21 who subsequently had a disabling accident with brain injuries.   Comment: Guardian tried to connect local ordinance on serving to minors, but this did not work to create a duty. SJ affirmed.  Not much black letter law in this one, but the analysis on causation was short and to the point. 2002-CA-001571.pdf Size: 41 kb Date: 10/8/2003 WHEELER V. COM. CRIMINAL  - Jury Instructions In 2-1 decision, CA reversed Defendant's conviction for Complicity to Commit 1st Degree Robbery.  TC erroneously refused to instruct on criminal facilitation. "Under either statute [Complicity or Facilitation], the defendant acts with knowledge that the principal actor is committing or intends to commit a crime.  Under the complicity statute, the defendant must intend that the crime be committed; under the facilitation statute, the defendant acts without such intention. Facilitation only requires provision of the means or opportunity to commit a crime, while complicity requires solicitation, conspiracy, or some form of assistance.  Facilitation reflects the mental state of one who is ‘wholly indifferent’ to the actual completion of the crime." 2002-CA-001577.pdf Size: 24 kb Date: 10/8/2003 DALTON V. FORTNER LOCAL OPTION ELECTIONS KRS 242.185(6), the local option election law permitting the sale of alcoholic beverage by the drink, is applicable to cities other than those of the fourth class or counties containing cities of the fourth class.  Election ordered. 2002-CA-001652.pdf Size: 21 kb Date: 10/8/2003 DALTON V. COM. CRIMINAL  CA affirmed Jefferson Circuit Court order denying pro se Defendant's motion for post-conviction relief pursuant to RCr 11.42 and CR 60.02.  Allegations of ineffective assistance of counsel should have been raised in 1st RCr 11.42 motion. 2002-CA-001763.pdf Size: 21 kb Date: 10/8/2003 WATKINS V. WATKINS DIVORCE, PROPERTY Wife had no marital interest in property ex-husband inherited from his father.  Husband inherited property 9 years after they were married.  Property worth $52,000.00.   Husband and wife take out a mortgage on the property for $27,653.00.  At that time wife's name is added to the deed on the property.  Borrowed money was used for marital expenses.  Court of Appeals held that the property was non-marital because it was inherited and adding the wife's name to the deed did not change the character of the property as title is not controlling.  Angel v. Angel, ky.app., 562 s.w.2d 661.   2002-CA-001949.pdf Size: 32 kb Date: 10/8/2003 ALLSTATE INS. CO. V. MCDOWELL NO FAULT, PIP, INVESTIGATION OF PIP CLAIMS This case addressed overdue pip payment and reasonable foundation for payment of pip by the reparations obligor.  Here Allstate sent out dental records for an audit and then an independent dental examination, but they were without reasonable foundation for not paying the bills when the treating dentist tendered adequate documentation in support of his bills and that is the date interest begins.  Comments:  Denial of PIP is always a risk for the carrier.  Here the plaintiff wished to box Allstate into a corner stating upon presentment of the pip bill that there were only two options, pay or reject.  But if there is no reasonable foundation supplied by the provider, then Allstate can investigate.  The plaintiff was claiming some major dental work from trauma of the accident but the pip application mentioned only neck and shoulder and the treating dentist's records then stated the trauma of the accident may have caused the dental problems.   2002-CA-002024.pdf Size: 25 kb Date: 10/8/2003 FERRELL V. COM. CRIMINAL CA reversed and remanded Circuit Court's denial of Defendant's RCr 11.42 motion to vacate conviction.  This case can best be described as a "procedural yo-yo".   Round 1:  Ferrell was originally convicted of Escape and PFO 2nd.  At trial, he attempted to argue he escaped from prison because his life was in danger following threats by other inmates.  TC excluded Ferrell's testimony concerning these threats, deeming them hearsay.  CA reversed, stating testimony was not hearsay because they went to Defendant's state of mind.  SC weighed in and reversed CA, stating the issue was not properly preserved due to counsel's failure to introduce the threats through avowal testimony.   Round 2:  With SC decision in hand, Ferrell then filed RCr 11.42 motion to vacate conviction, alleging his trial counsel was ineffective for failing to preserve issue through avowal testimony.  Circuit Court denied this motion without a hearing.  CA again reversed, stating Ferrell was entitled to a hearing on the matter.   Round 3:  On remand, Circuit Court conducted an evidentiary hearing on the RCr 11.42 motion.  It denied same, holding that there was no reasonable probability that the outcome would have been different had the evidence been introduced.  On appeal, CA reversed and remanded for a new trial, finding a reasonable probability of different outcome.   Commentary:  CA appears to have been determined to get this guy a new trial.  If Defendant is convicted upon retrial, what are the chances of CA reversing an unbelievable 4th time? 2002-CA-002393.pdf Size: 27 kb Date: 10/8/2003 HUMPHREYS V. HUMPHREYS DIVORCE, CHILD CUSTODY   Sole custody of 2 children awarded to mom is o.k. so long as trial court is taking best interests of children into consideration and applies the relevant factors listed in KRS 403.270(2).

KENTUCKY FEDERAL DECISIONS 
October 13-17, 2003

• Western District Court - Kentucky - None

• Sixth Circuit Court of Appeals 

 

Opinion	DocketSheet	Pub Date	Short Title/District
03a0367p.06	01-1653	2003/10/14	Hudson v. Coleman     Eastern District of Michigan at Detroit

 

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

Spoliation of Evidence

• Monsanto Co. v. Reed, 950 S.W.2d 811 (Ky.,1997)
  We decline the invitation to create a new tort claim. Where the issue of destroyed or missing evidence has arisen, we have chosen to remedy the matter through evidentiary rules and "missing evidence" instructions.
• Sanborn v. Commonwealth, Ky., 754 S.W.2d 534 (1988).
  Where prosecutor deliberately erased the tape-recorded statements of certain witnesses before the defendant had had an opportunity to examine the tapes was misconduct of constitutional proportions. The giving of a "missing evidence instruction"  was sufficient to offset the prosecutor's misconduct.
• BANDY V. CINCINNATI, NEW ORLEANS AND TEXAS PACIFIC RAILWAY (nonpublished)
  2001-CA-002121.pdf
  Where the issue of destroyed or missing evidence has arisen, Kentucky has chosen to remedy the matter through evidentiary rules and "missing evidence" instructions rather than dismissing the claims or granting default judgment.
  

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