2000-CA-001896.pdf
Size: 19 kb
Date: 10/30/2003
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BIRDO
V. COM.
CRIMINAL
CA affirmed Jefferson Circuit Judge Ken
Conliffe's order designating Defendant as a moderate
risk sex offender pursuant to KRS 17.570. |
2001-CA-001102.pdf
Size: 25 kb
Date: 10/30/2003
|
TAYLOR V. COM.
CRIMINAL - Wanton Endangerment
CA reversed Defendant's conviction
for Wanton Endangerment 1st after she hired an
undercover police officer to kill her husband but
later renunciated. "We do not believe
that the facts of this case are sufficient to
support a wanton endangerment charge. Barbara's
actions did not create a risk of death or serious
physical injury to the victim." [The police
officer] never attempted to actually murder
[him]."
|
2001-CA-001140.pdf
Size: 51 kb
Date: 10/30/2003
|
MANLEY V. JUDGE HUGH SMITH
HAYNIE
CRIMINAL CONTEMPT
In 2-1 decision, CA reversed Jefferson
Family Judge Hugh Haynie's order finding Louisville
Attorney Sam Manly guilty of two counts of criminal
contempt.
"Contempt is the willful
disobedience toward, or open disrespect for, the
rules or orders of a court." Commonwealth
v. Burge , Ky., 947 S.W.2d 805, 808 (1997).
"Criminal contempt is conduct ‘which amounts
to an obstruction of justice, and which tends to
bring the court into disrepute.’" Id
. (quoting Gordon v. Commonwealth
, 141 Ky. 461, 463, 133 S.W. 206, 208 (1911).
While we do not condone Manly’s behavior at the
settlement conference or in the courtroom, we do not
believe that under the facts as presented to us,
that he could be held in contempt of court.
Note:
At issue in this case is Attorney Manly's reference
to his genitalia in open court. Manly
successfully argued that he was only clarifying the
exact statement he made to opposing counsel in the
conference room. The majority appeared to base
their decision on Judge Haynie's delayed
reaction to Manly's comments. Judge Schroder
provided a lengthy dissent.
|
2001-CA-001153.pdf
Size: 34 kb
Date: 10/30/2003
|
ESAREY
V. COM.
CRIMINAL
CA affirmed Defendant's convictions for wanton
endangerment in the first degree, complicity to
retaliating against a witness, and perjury in the
first degree. TC did not err in denying motion
to dismiss over alleged agreement with Commonwealth following
a polygraph test. Admission of unredacted grand
jury testimony permitted the introduction of improper
hearsay, however, error was cured by admonition.
There was reasonable pretrial notice of KRE
404(b) evidence used against the Defendant, the
evidence was relevant to the issues, and was not
unduly prejudicial. TC properly denied request
for lesser included instructions. |
2001-CA-001237.pdf
Size: 22 kb
Date: 10/30/2003
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OLIVER
V. COM.
CRIMINAL - Search & Seizure
CA affirmed TC's order denying Defendant's motion
to suppress. Upon consideration of the
totality of the circumstances, the police did have
sufficient cause to conduct an investigatory stop of
the Defendant. Further, the search of the
Defendant was properly based upon consent. |
2001-CA-001242.pdf
Size: 27 kb
Date: 10/30/2003
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C.E.
PENNINGTON CO. V. B & H ELECTRICAL
CONTRACTORS, INC.
APPEALS, BRIEFS
CA affirmed trial court's findings etc. No
counsel for either party to the appeal complied
with CR 76.12(4)(c)(v) - "An "ARGUMENT" conforming to the Statement of Points and Authorities, with ample supportive references to the record and citations of authority pertinent to each issue of law and which shall contain at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner."
The purpose of this 1989 amendment
was to keep the appellate judges from wasting their
time canvassing the record to ascertain the
issue.
COMMENT: This rule on
the preservation of the issue pops up frequently, and
to the credit of those attorneys who fail to meet the
strict requirements of the rule, it is noted that this
mandate does not jump out and bite the reader.
More importantly, the rule is frequently cited by our
appellate judges and then passed over as they address
the issues raised. In this case, the purpose of
the rule was evident and apparent for two
reasons.
First, the oversight was not
necessarily an oversight as "Pennington's brief makes no attempt whatsoever to comply with the rule. Maier's brief blithely informs us that,
'All issues raised for review below are preserved for review and are properly before this Court as they all involve questions of law which this court may review de
novo.'"
Second, "[t]he record in the present case is voluminous. The five large boxes contain eight volumes of the clerk's record, thirteen video tapes, approximately twenty depositions, and eleven volumes of exhibits. We will not search the record to determine if the alleged errors were preserved."
This is just an anecdotal comment as
no research has been done to ascertain any trend on
how this issue is handled by any particular judge,
judges, or panels, but check out 'Guidugli on
Guidugli' in the one-minute CLE.
|
2001-CA-001426.pdf
Size: 23 kb
Date: 10/30/2003
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HUTSON
V. COM.
CRIMINAL
CA affirmed consolidated appeals (Direct
& RCr 11.42) following conviction for PFO 1.
Defendant failed to properly designate the videotaped
proceedings, and therefore, the CA presumed the
proceedings supported the TC's findings.
Further, Defendant's trial counsel was not
ineffective. |
2001-CA-002269.pdf
Size: 34 kb
Date: 10/30/2003
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BANKS
V. MARCUM
CHILD SUPPORT & SOVEREIGN IMMUNITY & APPEALS
Amusing case of a pro se Plaintiff/Appellant who
files two (2) suits, both of which are dismissed, and
the Court of Appeals affirms dismissal. Father failed
to pay child support, was arrested, spent one night in
jail, pled guilty to nonsupport and was sentenced to
six months in jail. He filed two separate suits
(one alleging discrimination, unlawful detainment,
cruel and unusual punishment, false arrest and
excessive bail against the jailer, County
Judge-Executive, sheriff, County Attorney, District
Judge, Fiscal Court, and employees of the Cabinet for
Families and Children; he sought $4.5 million in
damages and the second suit (alleged that the KY Child
support laws were "way too broad" and
violated the Contracts Clause of the Constitution
against the Cabinet for Families and Children). Because
the pro se Plaintiff failed to preserve the error at
the trial court level and cite law in his Brief at to
the Court of Appeals, the Court of Appeals affirmed
the trial court ruling.
Note: This pro se
plaintiff did NOT get the benefit of the doubt for
failing to following the mandatory requirements for
filing and perfecting an appeal.
|
2001-CA-002606.pdf
Size: 18 kb
Date: 10/30/2003
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MEADS
V. TOYOTA MOTOR MANUFACTURING OF KENTUCKY
SUMMARY JUDGMENT
CA affirmed summary judgment dismissing claims.
COMMENT: Don't waste your time reading
this one. |
2002-CA-000053.pdf
Size: 40 kb
Date: 10/30/2003
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JOHNSON
V. MATTINGLY
REAL PROPERTY, QUIET TITLE
Trial judge committed no error in post-trial
motions. Attorneys fees properly denied in absence of
statutory authority. Appellee Mattingly acted
under color of titled so that KRS 364.130 not apply
and no entitlement to attorneys fees or expert witness
fees.provides for reimbursement of the Johnsons's expert witness fees.
Black-Letter Law - Color of
Title
The trial court determined that the Mattingly Group held color of title as a matter of law; thus, our review of the issue is de novo.
A & A Mechanical, Inc. v. Thermal Equipment Sales,
Inc., Ky. App ., 998 S.W.2d 505, 509 (1999). However, the factual findings made by the trial court, including those supporting the legal conclusion of color of title, are not subject to reversal unless clearly erroneous.
Com., Dept. for Human Resources v. Kentucky Products,
Inc., Ky ., 616 S.W.2d 496, 501 (1981); CR 52.01.
The Kentucky Supreme Court, citing section 11, page 267, 27 Am.Jur., defined 'color of title' as:
[t]hat which is the appearance of title, but which in reality is not title. Color of title may be said to be a writing, upon its face professing to pass title, but which does not do it, either from a want of title in the person making it, or from the defective conveyance that is used--a title that is imperfect, but not so obviously imperfect that it would be apparent to one not skilled in the law.
Kelly v. Kelly, 293 Ky. 42, 168 S.W.2d 339, 342 (1943).
Black-Letter Law - Expert
Fees
Like an award of attorney fees, the general rule concerning expert witness fees is that "fees paid by a party to expert witnesses are not recoverable as part of the cost of the action, unless specifically authorized by statute." 20 Am.Jur.2d Costs § 51 (2003). Kentucky courts have applied this rule. See
Shelter Mut. Ins. Co. v. McCarthy, Ky.App., 896 S.W.2d 17, 19 (1995) (holding that "case expenses should be treated like attorney fees; that is, statutory authority must be given in order to allocate such costs"). Again, because we hold that the Mattingly Group acted under color of title, KRS 364.130 is no longer applicable and any authority for the award of expert witness fees disappears. Therefore, the Johnsons were properly denied reimbursement for their expert witness fees.
|
2002-CA-000063.pdf
Size: 48 kb
Date: 10/30/2003
|
FOLEY
V. COM.
CRIMINAL
CA affirmed Defendant's conviction and 15
year sentence for Rape 1st. Defendant failed to
preserve issue of whether jury improperly received
alleged victim's handwritten statement during
deliberations. The Commonwealth’s
failure to comply with discovery provision RCr 7.26
was non-prejudicial because there was no substantial
possibility that the result would have been any
different. TC properly denied Defendant's motion
for competency hearing. Defendant was not
entitled to a directed verdict on the rape charge. |
2002-CA-000374.pdf
Size: 16 kb
Date: 10/30/2003
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ALEXANDER V. COM.
CRIMINAL
CA affirmed Defendant's conviction
and 6 year sentence for Trafficking in a Controlled
Substance, First Degree. The inclusion of
definitions for the terms "Traffic,"
"Sell," and "Transfer" in the
jury instructions were mere surplussage and did not
constitute palpable error.
|
2002-CA-000548.pdf
Size: 29 kb
Date: 10/30/2003
|
ENGLAND
V. JACKSON
CHILD CUSTODY, GRANDMOTHER DE FACTO CUSTODIAN
Court of Appeals affirmed trial court ruling that
grandmother was not de facto custodian pursuant to KRS
403.270. At issue in this case was the
definition of "primary caregiver" and the
six month time period as discussed in KRS 403.270. |
2002-CA-000600.pdf
Size: 46 kb
Date: 10/30/2003
|
BYRD V. COM.
CRIMINAL
CA affirmed TC's order
denying Defendant's motion to suppress incriminating
statements made to his neighbor. Statements
made by the Defendant were independent of any
agreement with the police, the statements did not
involve state action, and the statements were
freely and voluntarily given.
|
2002-CA-000823.pdf
Size: 44 kb
Date: 10/30/2003
|
RICHARDSON
V. COM.
CRIMINAL
CA affirmed Defendant's conviction for Assault
3rd degree and Alcohol Intoxication.
Richardson’s level of intoxication was a factual
issue for the jury to resolve and she was not entitled
to a directed verdict. Any error on the
part of the trial court was harmless. |
2002-CA-000896.pdf
Size: 22 kb
Date: 10/30/2003
|
ROBERTSON
V. COM.
CRIMINAL
CA affirmed TC's order denying Defendant's
motion for RCr 11.42 relief as untimely filed. |
2002-CA-001066.pdf
Size: 23 kb
Date: 10/30/2003
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C.I.,
A CHILD V. COMMONWEALTH OF KENTUCKY
CRIMINAL, JUVENILE LAW
On discretionary review, CA affirmed
Jefferson Circuit Judge Barry Willett's order
committing the Defendant as a juvenile sexual
offender. The issue was not properly preserved,
but regardless, the trial court did not err by failing
to conduct an evidentiary hearing to address the issue
of C.I.’s intellectual functioning for purposes of
determining his eligibility for commitment to DJJ as a
juvenile sexual offender. |
2002-CA-001083.pdf
Size: 28 kb
Date: 10/30/2003
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LANDERS
V. SPEER
CONTRACTS
Judicial admissions are to be narrowly construed
and allegations in complaint did not specifically name
non-party as a party to the contract and therefore may
be an admission that a contract existed but not that
the non-party was a party.
Note: Pleadings are
more than pleadings, and this case presents the old
debate of those lawyers who like to plead a ton of
facts and details versus those who go for the short,
sweet and conclusory route. This was why the
civil rules left the arena of the "Field"
code of pleadings with its resultant demurrage motions
to the modern era (post-WWII) of short pleadings which
allow discovery to flesh the facts out at a later
date. Here, be careful of what you say cause
someone may expect you to mean it.
|
2002-CA-001337.pdf
Size: 28 kb
Date: 10/30/2003
|
COLLIER
V. COM.
CRIMINAL
CA affirmed TC's order denying Defendant's
motion for relief pursuant to RCr 11.42 alleging
prosecutorial misconduct and ineffective assistance of
counsel. |
2002-CA-001404.pdf
Size: 46 kb
Date: 10/30/2003
|
POTTER
V. BLUE FLAME ENERGY CORP.
REAL PROPERTY, QUIT CLAIM DEEDS
CA affirmed summary judgment holding the Potters did not own the claimed land, in that their predecessor in title, Catherine B. Riley, did not succeed to the full interest held by Pine Mountain Land Company, a corporation of which she was the sole shareholder at the time of the corporation's dissolution.
The traditional rule is that a clerical error in the use of a descriptive term in a deed description does not defeat the intent of the parties to convey a certain parcel of land in light of the sufficient expression of the parties' intent in the rest of the description.
20 parcels of land were deeded over. |
2002-CA-001515.pdf
Size: 43 kb
Date: 10/30/2003
|
BETAR V. COM.
CRIMINAL - Search & Seizure - Automobile
Exception; Investigatory Stop
CA reversed Defendant's
convictions for facilitation to manufacture
methamphetamine, being a persistent felony offender
in the second degree, and possession of drug
paraphernalia. CA ultimately held that police
did not have a reasonable and articulable suspicion
to effect a traffic stop.
In this case, the Defendant was
stopped in his vehicle by police shortly after
leaving Wal-Mart. Wal-Mart employees contacted
police after the Defendant made several
"suspicious" purchases. Defendant was
subsequently arrested for driving without a license,
and a search incident to arrest turned up evidence
leading to the drug offenses.
"In his motion to suppress,
Betar did not challenge his arrest for driving on a
suspended license. This was an unwise decision, for
the police clearly lacked the articulable suspicion
required by Terry v. Ohio in order to
perform the investigative stop wherein they
requested his driver’s license. Betar had
committed no visible traffic offense, there was
nothing illegal or unsafe about his vehicle and, as
will be explained in greater detail below, the
police were not given sufficient information by the
Wal-Mart employee to formulate a reasonable
suspicion of criminal activity. Therefore, had Betar
not waived his challenge to the initial stop and
ensuing arrest for driving on a suspended license,
we would likely invalidate every police action from
that point forward. However, having waived that
challenge, Betar’s only remaining avenue for
relief from his arrest and guilty plea to this count
is under Kentucky Rules of Criminal Procedure (RCr)
11.42, which must await a subsequent
proceeding."
Note: This
opinion contains strong language concerning trial
counsel's 4th Amendment analysis, practically
inviting an RCr 11.42 motion to vacate the traffic
conviction for ineffective assistance. In
addition, this is the 2nd decision in recent memory
whereby the CA has declined to accept tips by
Wal-Mart employees concerning methamphetamine
purchases as justification for a traffic stop.
|
2002-CA-001522.pdf
Size: 43 kb
Date: 10/30/2003
|
ST.
JOSEPH HOSPITAL V. BRATTON
WORKERS COMP
ALJ's award was final and appealable as the ALJs determination that the language in the parties settlement agreement was not an effective waiver of future medical benefits and that
the employer would therefore be liable for claminant's
knee replacement surgery. |
2002-CA-001559.pdf
Size: 29 kb
Date: 10/30/2003
|
ELDRIDGE
V. KENTUCKY RETIREMENT SYSTEMS
GOVERNMENT EMPLOYMENT, RETIREMENT
CA reversed circuit court judgment which had affirmed the denial of disability benefits by the Kentucky Retirement
Systems since the circuit court erred by finding the administrative agency's decision was based on substantial evidence. |
2002-CA-001580.pdf
Size: 21 kb
Date: 10/30/2003
|
PRELL
V. JIM NASI CUSTOMS CO.
JURISDICTION, IN PERSONAM and OUT-OF-STATE BUSINESS
CA did not find sufficient contacts to exercise
jurisdiction over Arizona business dealing with
Kentucky. "It is undisputed that Prell
[Kentucky resident] contacted Jim Nasi [Arizona
business] to purchase the [motorcycle] part [that was
allegedly defective and the subject of the suit]. The record indicates that the terms of delivery were free on board at Jim Nasi's Arizona location; therefore, Prell paid to have the part shipped to his address in Kentucky. Also, Jim Nasi's sales records reflect that it has had no income from transactions in Kentucky for the last three years. Utilizing the above three-prong test, we are simply unable to conclude that the cause of action arose from Jim Nasi's activities in Kentucky and that there exists a "substantial enough connection to the Commonwealth to make jurisdiction" over Jim Nasi reasonable. Indeed, we do not view the exercise of personal jurisdiction over Jim Nasi as comporting with traditional notions of fair play and substantial justice under the due process clause."
Black-Letter Law - Jurisdiction -
In Personam
In order to determine whether exercise of jurisdiction over
out of state party is proper under the due process clause,
the court must "consider the three-pronged test enunciated in
Tube Turns Division of Chemetron Corp. v. Patterson
Co., Ky.App., 562 S.W.2d 99, 100 (1978):
First, the defendant must purposely avail himself of the privilege of acting in the forum state or causing a consequence in the forum state. Second, the cause of action must arise from the defendant's activities there. Finally, the acts of the defendant or consequences by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable.
Indeed, as pointed out by our Supreme Court in Wilson v.
Case, Ky., 85 S.W.3d 589, 593 (2002), "this test synthesized the relevant factors set forth by
(International Shoe Company v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945)) and its progeny into a more succinct and workable three- pronged analysis to determine the outer limits of personal jurisdiction based upon a single act." It is well-established that all three prongs of the test must be met before the due process clause is satisfied."
|
2002-CA-001606.pdf
Size: 24 kb
Date: 10/30/2003
|
GILBERT
V. COM.
CRIMINAL - Search Warrant; Confidential Informant
CA affirmed Defendant's convictions for
first-degree tampering with a controlled substance,
tampering with physical evidence, and second-degree
persistent felony offender ("PFO"). TC
properly denied the Defendant's motion to
suppress and motion to compel the release of the
informant’s identity. |
2002-CA-001619.pdf
Size: 20 kb
Date: 10/30/2003
|
BRENDAMOUR-YOKKAICHI
WORLDWIDE V. ABNEY
WORKERS COMP
"This petition for review involves the interpretation of the multiplier factors contained in KRS 342.730 and the issue of proper notice. In that there were several cases addressing KRS 342.730 pending before the Kentucky Supreme Court, this case was ordered to be held in abeyance pending final disposition of those cases. Fawbush v. Gwinn, Ky., 103 S.W.3d 5 (2003) and Kentucky River Enterprises v. Elkins, Ky., 107 S.W.3d 206 (2003), each of which addresses KRS 342.730, are now final."
CA reverse and remand. |
2002-CA-001659.pdf
Size: 37 kb
Date: 10/30/2003
|
CAPE
PUBLICATIONS dba COURIER-JOURNAL V. LOUISVILLE
OPEN RECORDS
CA affirmed trial judge's decision regarding
redaction of personal information from incident
reports requested by newspaper from local police. |
2002-CA-001699.pdf
Size: 22 kb
Date: 10/30/2003
|
STIDHAM
V. KENTUCKY REAL ESTATE COMMISSION
ADMINISTRATIVE LAW, REAL ESTATE LICENSE, REVIEW
Commissioners decision regarding agreement between
licensee and board (in which licensee's attorney
objected) was affirmed and not arbitrary.
Licensee had previously allowed is real estate license
to lapse, and this case ensued regarding his efforts
to get it back.
Black-Letter Law - Review of
Administrative Decisions
"Where administrative decisions are being considered, our standard of review is the same as the trial court's standard. We are limited to the question of arbitrariness. An administrative decision may be considered arbitrary if: (1) it was not within the scope of the agency's granted powers; (2) the agency failed to provide procedural due process; or (3) the agency's decision was not supported by substantial evidence.
Com., Revenue Cabinet v. Liberty National Bank of
Lexington, Ky.App., 858 S.W.2d 199, 201 (1993). " 'If the findings of fact are supported by substantial evidence of probative value, then they must be accepted as binding and it must then be determined whether or not the administrative agency has applied the correct rule of law to the facts so found.' "
Kentucky Unemployment Ins. Commission v. Landmark Community Newspapers of Kentucky,
Inc., Ky., 91 S.W.3d 575, 578 (2002) (citing Southern Bell Tel. & Tel. Co. v. Kentucky Unemployment Ins.
Commission, Ky., 437 S.W.2d 775, 778 (1969))."
|
2002-CA-001704.pdf
Size: 26 kb
Date: 10/30/2003
|
GIBNEY
V. SANDLIN
DIVORCE, PROPERTY DISTRIBUTION, CONTEMPT
Court of Appeals affirms trial court ruling that
husband must pay wife $55,481.50 as her interest in a
jointly held SEP/IRA account. The value of the
account was deemed to be the date of the entry of the
decree of dissolution of the marriage. Clark
v. Clark, Ky.App., 782 S.W.2d 56 (1990). He was
ordered to pay her one half of the value of the
account from the date they were married to the day the
decree was entered.JERI - THIS IS THE CASE OF THE SURE FIRE SAPHIRE
THAT BURNED THE SWITCHEROO. |
2002-CA-001725.pdf
Size: 24 kb
Date: 10/30/2003
|
NICKELL
V. PENNINGTON
REAL PROPERTY, RESERVED LIFE ESTATE, INTERFERENCE
No genuine issue of material fact existed and
summary judgment holding life interest had been
conveyed was affirmed. |
2002-CA-001800.pdf
Size: 49 kb
Date: 10/30/2003
|
LUDWIG V. COM.
CRIMINAL - Search & Seizure
CA affirmed Defendant's convictions for
Burglary 3rd, Possession of a controlled
substance (cocaine) in the first degree, and use or
possession of drug paraphernalia
. Jefferson Circuit Judge James
Shake properly found that the police entered
Ludwig’s home without securing a search warrant
based upon a reasonable belief that evidence from
the burglary was being destroyed.
Further, TC prop erly found that even if the police
had obtained a warrant prior to entering Ludwig’s
home, they would have inevitably discovered the
seized evidence. Finally, Defendant was not
entitled to a directed verdict on the cocaine
charge. The testimony of two cocaine users who
were at the crime scene was sufficient to establish
the identity of the controlled substance.
However, Defendant's PFO conviction
and 15 year sentence reversed and remanded
for new sentencing hearing. During the
penalty phase, the jury was improperly exposed to
previous PFO charges that were subsequently
dismissed.
|
2002-CA-001817.pdf
Size: 25 kb
Date: 10/30/2003
|
WMC
CORP. V. C & B, INC. (NOW M & H, INC.)
ATTORNEYS FEES
Agreement provided for attorneys fees but claim
for work done on an amended complaint after the
judgment was too late, but party was entitled to
consideration for attorneys fees on the supplemental
work done for the appeal and trial court will make
determination of reasonable attorney fees for the
appellate work. |
2002-CA-001888.pdf
Size: 21 kb
Date: 10/30/2003
|
MARTIN
V. COM.
CRIMINAL
CA affirmed Defendant's convictions for Rape
2nd and Sex Abuse 1. Commonwealth’s use of the
transcript of a destroyed audiotape during a
detective's testimony was proper given that it
constituted a "past recollection recorded"
under KRE 803(5). Defendant was not
entitled to a directed verdict nor lesser included
instructions. |
2002-CA-001895.pdf
Size: 20 kb
Date: 10/30/2003
|
CIMIOTTA
V. COM.
CRIMINAL - Search & Seizure
CA reversed Defendant's
convictions for trafficking in marijuana (KRS
218A.1421), possession of drug paraphernalia (KRS
218A.500), first-degree possession of a controlled
substance (KRS 218A.1415), and DUI. "We
believe that slowing down while driving past a police
cruiser on the side of the road, and then turning into
a driveway, and then starting to back out does not
constitute unusual conduct from which a police officer
could conclude criminal activity is afoot, for which
he could stop the vehicle." |
2002-CA-001919.pdf
Size: 21 kb
Date: 10/30/2003
|
KUBAJAK
V. LEXINGTON-FAYETTE URBAN COUNTY GOV'T
WORKERS COMP, EXCLUSIVE REMEDY (CIVIL SIDE OF THE
CASE)
CA affirmed summary judgment dismissing workers
civil personal injury claims for work-related
post-traumatic stress disorder under exclusive remedy
provisions of workers comp act, KRS 342.690(1).
NOTE: The workers comp
side of this case is also in this issue and
unpublished. Scroll down the page.
|
2002-CA-002080.pdf
Size: 23 kb
Date: 10/30/2003
|
UPTON
V. UPTON
DIVORCE, PROPERTY, MAINTENANCE
Court of Appeals affirms trial court's
distribution of marital property and denial of
maintenance. Mary Ann argued the trial court
erred by finding two pieces of property were martial
assets. She claimed that two years before
divorce Jack executed a quit claim deed to her in
order to avoid a potential judgment. The Court
of Appeals held KRS 403.190(3) was dispositive of what
is considered marital property. Because the
properties were acquired after marriage "the form
of title is not consequential." The Court
also held that nothing in the record supported Mary
Ann's assertion quit claim deeds should be
characterized as gifts or agreements to exclude
property from marital status. Court further held
review of the parties assets and liabilities supported
commissioner and trial court's conclusion that Mary
Ann and Jack's post-trial income were approximately
equal and no maintenance justified.
Note: Court chastised Mary Ann who had
discharged her attorney and filed her own exceptions
to the commissioner's report for not complying with CR
76.12(c)(v) requiring an argument to "contain at
the beginning...a statement with reference to the
record showing whether the issue was properly
preserved for review and, if so, in what manner."
Court went on to say "since one may not present
one can of worms to the trial court and another to the
appellate court, we would be justified in summarily
affirming the trial court on this issue."
However, the appellate counsel who filed the brief
came in after the trial. |
2002-CA-002098.pdf
Size: 21 kb
Date: 10/30/2003
|
AVERY V. COM.
CRIMINAL - Confidential Informant
CA affirmed Defendant's convictions and 10
year sentence for trafficking in the first degree,
possession of marijuana, possession of drug
paraphernalia, and being a persistent felony
offender, second degree. TC properly
denied Defendant's motion to reveal the confidential
informant. "Because the Commonwealth agreed to
base the trafficking charge on possession with
intent to sell rather than on the actual sales, we
believe the trial court was correct in not requiring
the release of the confidential informant’s
name."
Note:
The Commonwealth made a nice tactical move to avoid
revealing the name of the confidential informant,
but one has to wonder whether this is a case of form
over substance.
|
2002-CA-002144.pdf
Size: 20 kb
Date: 10/30/2003
|
DOWNING
V. CSX TRANSPORTATION, INC.
NEGLIGENCE, RAILROAD CROSSING-PEDESTRIAN ACCIDENT
Affirmed summary judgment dismissing claim arising
from train hitting pedestrian on tracks. "It is an established doctrine in this jurisdiction that, regardless of the location, one lying or sitting upon a railroad track will be treated as a trespasser to whom employees of the company in charge of the train owe no duty of lookout, warning, or control, or other care, except to use ordinary care to avoid injuring him after the discovery of his peril."
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2002-CA-002155.pdf
Size: 19 kb
Date: 10/30/2003
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ROBINSON
V. PIKE COUNTY BOARD OF EDUCATION
WORKERS COMP
CA affirmed Board's decision "which affirmed a finding by an Administrative Law Judge (ALJ) that appellant was totally occupationally disabled following her motion to reopen her claim. Appellant's original injury resulted in a 40% permanent partial disability award by the ALJ. The basis of the reopening was a claim of psychiatric impairment resulting from her work injury which was not manifest at the time of the original proceeding. The ALJ found that appellant's psychiatric condition caused an increase in disability of 60%. The ALJ concluded that appellant was now totally disabled. The ALJ further concluded that one-third of the increase, or 20%, was the result of non-work-related causes and would have to be carved out of the award." |
2002-CA-002167.pdf
Size: 22 kb
Date: 10/30/2003
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HAWKINS
V. COM.
CRIMINAL
Police officer has no authority to enter into a plea agreement with a
defendant. Defendant's conditional plea reserved the right to appeal the denial of a motion for specific performance of a deal supposedly made between him and his arresting officer.
Even if the prosecutor had agreed with such a deal,
defendant did not perform according to the terms he said were in the contract. |
2002-CA-002220_NP
Size: 22 kb
Date: 10/30/2003
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COLE
V. COM.
CRIMINAL
CA affirmed Circuit Court's denial of pro
se Defendant's motion for extraordinary
relief pursuant to CR 60.02(f). |
2002-CA-002293.pdf
Size: 22 kb
Date: 10/30/2003
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KUBAJAK
V. LEXINGTON-FAYETTE URBAN COUNTY GOV'T
WORKERS COMP, COMPENSABILITY OF PSYCHIATRIC
INJURIES
(WC SIDE OF THE CASE)
Since the 1994 amendment to the definition of injury
under KRS 342.0011(1), psychiatric injuries
(post-traumatic stress disorder, in this case) that
are not directly caused by a physical work injury or
physically traumatic events are not compensable. CA
affirmed denial of police officer's workers comp claim
for injury.
NOTE: The worker also lost
the flip side of this civil case and had no remedy
whatsoever for the putatively work-related PTSD since
his negligence claim against the government employer
was dismissed since workers comp is his exclusive
remedy BUT workers compensation rules is not a
compensable injury. The result is your employer
can drive you crazy, and there seems to be little to
nothing you can do about it!
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2002-CA-002404.pdf
Size: 24 kb
Date: 10/30/2003
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GREEN
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-002409.pdf
Size: 20 kb
Date: 10/30/2003
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WEBB
V. TOYOTA MOTOR MANUFACTURING, KENTUCKY, INC.
APPEAL, TIME-BARRED
Appeal was filed too late even though neither
party received the court's judgment within 30
days. No mistake or error was made by the
clerk. "
Failure of the trial court to require service of notice of entry of any judgment or order under this rule or the failure of the clerk to serve such notice, or the failure of a party to receive notice, shall not affect the validity of the judgment or order, and does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 73.02(1)."
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2002-CA-002508.pdf
Size: 19 kb
Date: 10/30/2003
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FLEMING
V. COM.
CRIMINAL
CA affirmed Defendant's convictions for
Sexual Abuse, First Degree (KRS 510.110), and Use of a
Minor in a Sexual Performance (KRS 531.310).
Defendant was not entitled to a directed verdict.
Sexual Abuse statute is not unconstitutional. |
2002-CA-002552.pdf
Size: 31 kb
Date: 10/30/2003
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ESTATE
OF CLAYWELL V. GRIDER
WRONGFUL DEATH, NEGLIGENCE, EXPERTS
Trial court did not err by denying directed
verdict and submitting issue to jury as to role played
by mailbox in auto accident resulting in death of
passengers. Jury, however, placed all fault on
driver and none on owners of mailbox, and appeal
followed attempting to find judge should have granted
DV. Affirmed. |
2002-CA-002594.pdf
Size: 18 kb
Date: 10/30/2003
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HENSLEY V. COM.
CRIMINAL
CA affirmed Defendant's convictions and 10
year sentence for Receiving Stolen Property over
$300 (KRS 514.110) and being a Persistent Felony
Offender, Second Degree (KRS 532.080).
Testimony by victim and police officer was proper.
Note: CA
evidently did not like the style of Defendant's
argument, stating "we will note at first
that the mocking tone of appellant’s brief
concerning the home intrusion and the victim’s
reaction to that break-in does not serve her client
well, or enhance her credibility with the
court."
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2002-CA-002624.pdf
Size: 21 kb
Date: 10/30/2003
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PHIPPS
V. COM.
CRIMINAL
CA affirmed Defendant's conviction and 4 year
sentence for 1st Degree Sexual Abuse. Defendant
was not entitled to a directed verdict of acquittal on
the charges. |
2003-CA-000310.pdf
Size: 28 kb
Date: 10/30/2003
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SELLERS
ENGINEERING INC. V. ROACH
WORKERS COMP
This appeal involved dispute over which employer
and therefore which insurer had to pay for claimant's
work-related injury and subsequent exacerbation. |
2003-CA-000331.pdf
Size: 33 kb
Date: 10/30/2003
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SMITH
V. NESBITT
STATUTE OF LIMITATIONS
CA affirmed trial court holding plaintiff's claims
against government for malicious prosecution of
flagrant non-support charges were time-barred.
COMMENT: Note the CA
was very forgiving and understanding of a
deficient pro se litigant's notice of
appeal a/k/a brief which omitted the parties.
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2003-CA-000341.pdf
Size: 30 kb
Date: 10/30/2003
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STONES
V. CUMMINS dba B & E RESTAURANT et al
PREMISES LIABILITY, SLIP AND FALL ON RESTAURANT'S
SPEED BUMP
Trip and fall case where Court of Appeals affirms
trial court's summary judgment, holding that the
restaurant owed no duty to the Plaintiff. Plaintiff
tripped over concrete humps in the parking lot and
broke her hip. Plaintiff was aware of the hump
because she drove her car over it, walked over it when
she went into the restaurant, and it was on her return
trip to the car that she fell. Due to the fact
she was aware of the condition, the Court of Appeals
affirmed.
The Court of Appeals disregards the recent holding in Lanier
v. Wal-Mart, Ky., 99 S.W.3d 431 (2003), stating
that there are cases on point, directing the parties
to Downing v. Drybrought, Ky., 249 S.W.2d 711
(1952); Jones .v Winn-Dixie, Ky., 458 S.W.2d
767 (1970); Cantrell v. Hardin Hospital, Ky.,
459 S.W.2d 164 (1970). |
2003-CA-000539.pdf
Size: 19 kb
Date: 10/30/2003
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MAYES
V. COM.
CRIMINAL
CA affirmed Circuit Court's denial of pro
se Defendant's motion for relief pursuant to CR
60.02. |
2003-CA-000626.pdf
Size: 18 kb
Date: 10/30/2003
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JOHNSON
V. COM.
CRIMINAL
CA affirmed Circuit Court's denial of pro
se Defendant's motion for relief pursuant to CR
60.02. |
2003-CA-000968.pdf
Size: 25 kb
Date: 10/30/2003
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AMERICAN
COLD STORAGE V. SINEGRA
WORKERS COMP
CA rejected it create a public policy exception Kentucky Revised Statutes (KRS) 342.730(1)(c)(2)
and deny claimant's award which doubled his functional impairment compensation
even though he was terminated for stealing from his
employer. Because the alleged theft was inadequately substantiated, and because
CA agreed with the Board that the plain language of the statute mandates a doubling of
claimant Sinegra's benefits.
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2003-CA-001067.pdf
Size: 34 kb
Date: 10/30/2003 |
TRI-STATE
ROOFING AND SHEET METAL V. HENSLEY
WORKERS COMP
CA affirmed determination that employee sustained work-related cumulative trauma injuries to his left shoulder, hips and back while employed by
Tri-State and the date the disability manifested
Black-Letter Law - Cumulative
Trauma
KRS 342.0011(1) defines a compensable injury as being a traumatic event or series of events, including cumulative trauma, that proximately causes a harmful change in the human organism. When a cumulative trauma injury is alleged, the claim must be filed within two years of the date the disability becomes manifest. KRS 342.185;
Special Fund v. Clark, Ky., 998 S.W.2d 487 (1999). In
Alcan Foil Products v. Huff, Ky., 2 S.W.3d 96 (1999), the Kentucky Supreme Court held that an injury or disability manifests when the claimant discovers that a physically disabling injury has been sustained and becomes aware that the cause of this injury was work-related. The entitlement to workers' compensation benefits arises with that work-related injury, even if that injury does not result in a permanent functional impairment or permanent disability.
Holbrook v. Lexmark International Group, Inc., Ky., 65 S.W.3d 908, 911 (2002). Clearly, the notice and limitations provisions of Kentucky's workers' compensation law are triggered when the claimant becomes aware of an injury and knows that the injury was caused by work, regardless of whether the symptoms that led to the discovery of the injury later subside. Id. The worker, however, must reasonably be apprised of the work-relatedness of his condition. See
Toyota Motor Manufacturing, Kentucky, Inc., v. Czarnecki, Ky.App., 41 S.W.3d 868 (2001). It is unreasonable for a claimant to self- diagnose the cause of the harmful changes to his body since medical causation is a matter for the medical experts.
Hill v. Sextet Mining Corporation, Ky., 65 S.W.3d 503, 507 (2001). As such, Kentucky law mandates that a claimant cannot be required to give an employer notice that he has sustained a work- related gradual injury until actually becoming informed of that fact. See
Alcan Foil, supra; Clark, supra.
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