• The Kentucky Decisions
  • No Ky Supreme Court Decisions
  • 59 Ky Court of Appeals Decisions
  • 3 Western District of Kentucky
  • 15 KY -Sixth Circuit Court of Appeals
• Index to past issues of Law Wire:  www.LouisvilleLaw.com/lawwire/index.htm
• "One-Minute" CLE - We hid a few black letter law moments gleaned from the opinions.  Just a little variety to lighten up the learning.

Legal Stuff Followed by More Legal Stuff

• Long arm of the law has it's limits in search incident to arrest
• Wal-Mart (Fall-Mart or now Law-Mart) loses a  'tip and fall' (not trip and fall) when employee's tip falls short for search warrant
• Confidential informant confidently stays confidential following motion to disclose ID
• Restaurant speed bump dumps customer on rump but no legal claim
• Husband loses claim that ex-wife switched diamonds and gets away with dead ringer on his finger
• Sometimes wrongful exposure includes what a jury sees - eg. criminal's record is not always ona need to know
• Criminal defendant scores no points with a 'mocking tone' in his brief
• Drive-by slow-down near-cop is not legal basis for stop (which found THC in process)
• During divorce, spouse tries a 'hate and switch' by changing the gemstone to a cheaper variety OR 'the case of the sure-fire sapphire switch' OR 
  "No bucks for brains here"
• Inmate fails to show liberty interest in prison disciplinary proceeding worthy of protection
• Some appeals are 
• Wife's contract to kill her husband was not wanton endangerment since undercover policeman never attempted to kill husband (of course, that will add meaning to the wedding vows  as irreconcilable differences are not overcome by wife's renunciation of contract)
  
  PS.  Hopefully, no one is relying on the above one-liners as their sole source for staying current on legal developments.

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KENTUCKY APPELLATE DECISIONS 
October 27 - 31, 2003

• Kentucky COURT OF APPEALS Decisions
  PUBLISHED - Oct. 31 , 2003
  
  

  AOC LINKS SUMMARIES OF DECISIONS

  2002-CA-000893.pdf Size: 26 kb Date: 10/30/2003 YATES V. WARDEN FLETCHER PRISON DISCIPLINE CA affirmed the Circuit court's dismissal of inmate's declaratory judgment action which requested a review of a prison disciplinary action. No due process violation when inmate waived his 24 hour notice requirement. 2002-CA-001920.pdf Size: 42 kb Date: 10/30/2003 MARKSBERRY V. CHANDLER, WARDEN PRISON DISCIPLINE CA affirmed order entered by Oldham Circuit Court which dismissed inmate's petition for declaration of rights filed pursuant to KRS 418.040 challenging a prison disciplinary action. Inmate failed to demonstrate that he possessed a liberty interest subject to due process protection.   A protected liberty interest may arise from two sources, the Due Process Clause itself and state law or regulations.  Challenges to prison conditions including segregation or removal from the general prison population are based on a potential "liberty" interest, but not all deprivations of an interest trigger the procedural safeguards of the Due Process Clause. In addition to the existence of language guiding or restricting the discretion of prison officials, an inmate must now establish that the condition "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner , 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). In measuring whether particular restrictions imposed on inmates are atypical and significant, Sandin indicated that courts should look to factors such as the following: (1) the effect of the segregation on the length of prison confinement under the original sentence; (2) the extent to which the conditions of the segregation differ from other routine prison conditions; and (3) the duration of the segregation imposed. Here, the loss of the mere opportunity to earn good-time credit does not constitute a cognizable liberty interest.   2002-CA-002070.pdf Size: 23 kb Date: 10/30/2003 COM. V. RAINEY CRIMINAL - Search & Seizure CA affirmed Jefferson Circuit Judge Denise Clayton's order suppressing evidence taken from an unlawful search & seizure. The search of Rainey's vehicle was not proper under the "search made incident to arrest" exception to the warrant requirement.  Here, the Defendant was charged with Possession of a Firearm by a Convicted Felon and PFO 1. Police witnessed the Defendant driving erratically but arrested him only after he exited his vehicle and traveled approximately 50 feet. The "search incident to arrest" exception was not applicable here because the police did not first initiate contact with the suspect while he was still within the confines of the vehicle. The exception applies only to those areas "within [the] immediate control" of the arrestee. Louisville attorney Keith Kamenish on the brief for the Defendant. 2002-CA-002304.pdf Size: 59 kb Date: 10/30/2003 BALTIMORE V. COM. CRIMINAL - Search & Seizure CA affirmed TC's order denying Defendant's motion to suppress evidence seized by police during an investigatory stop. The police had a reasonable suspicion to detain the Defendant. Defendant consented to the search, and in addition, the search of Baltimore's person was justified based on a search incident to arrest. Note: This decision presents an excellent review of black letter law on search & seizure.

• Kentucky COURT OF APPEALS Decisions
  NOT TO BE PUBLISHED - Oct. 31,  2003
    

  AOC LINKS SUMMARIES OF DECISIONS

  2000-CA-001896.pdf Size: 19 kb Date: 10/30/2003 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 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 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 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 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 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 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 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 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 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." 2002-CA-002155.pdf Size: 19 kb Date: 10/30/2003 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 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 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 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!  2002-CA-002404.pdf Size: 24 kb Date: 10/30/2003 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 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)."   2002-CA-002508.pdf Size: 19 kb Date: 10/30/2003 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 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 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."   2002-CA-002624.pdf Size: 21 kb Date: 10/30/2003 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 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 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. 2003-CA-000341.pdf Size: 30 kb Date: 10/30/2003 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 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 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 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. 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.

KENTUCKY FEDERAL DECISIONS 
November 3 - 7, 2003

• Western District Court - Kentucky
  

  Hossain Saneii, et al. v. William T. Robards, et al.   The Court considered a number of motions by Plaintiffs Saneii, et al. and Defendants RoBards, et al. concerning whether to confirm, vacate, or modify an arbitration award given in the Defendants favor. Plaintiffs’ main argument was that because of a recent decision in Kentucky case law, Marks v. Beans, 57 S.W.3d 303 (Ky. App. 2001), the Court should have never compelled arbitration of the claim of fraudulent inducement to enter into the residential real estate contract. Defendants argued that Plaintiffs should have used a different procedural mechanism, besides vacation of the arbitration award, prior to the end of arbitration, and have therefore waived the argument that the arbitrator exceeded his authority and jurisdiction. The Court concluded that the arbitrator did in fact exceed his authority in deciding the fraudulent inducement issue and therefore the arbitration award had to be vacated. To get to this conclusion the Court first decided that Marks clearly established that Kentucky arbitration law requires claims of fraudulent inducement to enter a contract to go to the court and not the arbitrator. Therefore, such a decision by the arbitrator had to be vacated even though the Court originally compelled arbitration on this issue. Next the Court established that state law, not the Federal Arbitration Act (“FAA”) applied to this case, because a residential real estate contract does not involve “interstate commerce.” Had the FAA and not Kentucky law applied, the Court’s initial compulsion of arbitration would have been appropriate and the arbitration award confirmed. Additionally, the Court found that Plaintiffs did not file an improper motion, could not appeal to the Sixth Circuit because this Court had yet to make a final decision, were not required to move for a stay of the arbitration, and did not waive their rights to challenge the arbitration. Finally the Court held that because the Sixth Circuit would review its decision to confirm or vacate de novo, which would include considering Marks, it would cause unnecessary delay if it did not look at its own prior decision where it had incorrectly predicted Kentucky law. The award was vacated as to its finding that Defendants did not fraudulently induce the Plaintiffs to enter the contract, and the Court ordered that it should decided this issue. All other parts of the arbitration award were sustained. Sierra Club, et al. v. Tyson Foods, et al.   Plaintiffs allege that the Defendants have failed to report ammonia emissions from certain chicken production operations in Kentucky in violation of CERCLA and EPCRA. The parties have moved for partial summary judgment regarding the definitions of "facility" and "persons in charge" under the statutes. Elaine Singleton v. Gerald D. Singleton, Sr. and National Automatic Sprinkler Industry Pension Fund and U.A. Local Union Officers and Employees Pension Fund   Plaintiff Elaine Singleton (“Plaintiff”) requested a declaratory judgment that she is entitled to one-half of the pensions and designation as the surviving spouse for the surviving spouse benefits under Defendant Gerald Singleton’s two pension funds, the National Automatic Sprinkler Industry Pension Fund (“NASI”), and U.A. Local Union officers and Employees Pension Fund (“UALUOE”), (collectively “Funds”). The Funds moved to dismiss because Plaintiff failed to comply with the notice requirements of the Employment Retirement Income Security Act of 1974 (“ERISA”). ERISA bars the Funds from changing the surviving spouse beneficiary designation from the current spouse to the former spouse unless the Funds receive a Qualified Domestic Relations Order (“QDRO”) prior to Defendant retiring. This did not occur so the Court granted the Funds’ motions to dismiss. Although the Funds may have received drafts and copies of the Family Court Orders, which gave Plaintiff surviving spouse benefits, this is not enough under the stringent requirements under ERISA. Additionally, even though the Funds had constructive notice prior to Defendant retiring, as well as the signed Domestic Relations Order (“DRO”) after Defendant retired, these mechanisms are also not enough under the ERISA requirements.

• Sixth Circuit Court of Appeals 

  Opinion DocketSheet Pub Date Short Title/District 03a0387p.06 01-5215 2003/11/03  Smith v. USA     Eastern District of Kentucky at Lexington 03a0388p.06 02-3365 2003/11/03  Abbott v. Crown Motor Co Inc     Southern District of Ohio at Columbus 03a0389p.06 01-1904 2003/11/03  Wolgast Corp v. NLRB     State of Michigan Agency 03a0389p.06 01-2056 2003/11/03  NLRB v. Wolgast Corp     State of Michigan Agency 03a0390p.06 02-1001 2003/11/03  Mannix v. Monroe Cnty     Eastern District of Michigan at Detroit 03a0391p.06 02-1381 2003/11/04  Baker v. Sunny Chevrolet     Western District of Michigan at Grand Rapids 03a0392p.06 01-6156 2003/11/04  Justice v. Pike Cnty Bd of Ed     Eastern District of Kentucky at Pikeville 03a0393p.06 02-6506 2003/11/05  Janis v. Ashcroft     Eastern District of Kentucky at Ashland 03a0394p.06 02-6172 2003/11/05  USA v. Cooper     Eastern District of Kentucky at Lexington 03a0395p.06 02-3100 2003/11/06  USA v. Cinemark USA     Northern District of Ohio at Cleveland 03a0396p.06 02-1475 2003/11/06  American Road Serv v. Consol Rail Corp     Eastern District of Michigan at Detroit 03a0397p.06 02-3270 2003/11/07  Cutter v. Wilkinson     Southern District of Ohio at Columbus 03a0397p.06 02-3299 2003/11/07  Miller v. Wilkinson     Southern District of Ohio at Columbus 03a0397p.06 02-3301 2003/11/07  Gerhardt v. Lazaroff     Southern District of Ohio at Columbus

  
  

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

Appeals - Preserving the error in your brief

• C. E. Pennington Co. v. B & H Elec. Contractors, Inc. 
  Nonpublished opinion written by Judge Guidugli - 2001-CA-001242.pdf

  "Unfortunately for the parties, the briefs filed in their behalf fail to comply with Kentucky Rules of Civil Procedure (CR). CR 76.12(4)(c)(v) [Formerly 76.12(4)(c)(iv), renumbered 76.12(4)(c)(v) effective February 1, 2001.] requires that appellants' briefs contain 
  
  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. 
  
  Skaggs v. Assad, Ky., 712 S.W.2d 947 (1986), and Elwell v. Stone, Ky.App., 799 S.W.2d 46 (1990), both indicate that an appellant stands in peril of having its brief stricken or having the court decline to consider its arguments if the brief does not comply with this rule. 

  The purpose of the rule is set out in 7 Bertelsman and Phillips [sic], Kentucky Practice, CR 76.12(4)(c)(iv), Comment 4 (4th ed. 1989 PP), wherein the authors point out:

  "The new amendment makes it mandatory that an attorney cite to the record where the claimed assignment of error was properly objected to or brought to the attention of the trial judge. This amendment is designed to save the appellate court the time of canvassing the record in order to determine if the claimed error was properly preserved for appeal." 

  About a year and a half after the effective date (January 1, 1985) of the rule, Chief Justice Stephens, writing for the majority in Skaggs v. Assad, By and Through Assad, Ky., 712 S.W.2d 947, 950 (1986), in reversing this Court in part, emphasized the necessity of compliance when he wrote: 

  "It goes without saying that errors to be considered for appellate review must be precisely preserved and identified in the lower court. Combs v. Knott County Fiscal Court, [283] Ky. [456], 141 S.W.2d 859 (1940); CR 76.12(4)(c)(iv) (1-1-85). This clearly has not been done in the case at bar and the Court of Appeals erred in concluding that it had been." 

  Elwell, 799 S.W.2d at 47-8. 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."

  The 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. Hollingsworth v. Hollingsworth, Ky.App., 798 S.W.2d 145 (1990). This is not a burdensome or revolutionary requirement for counsel, or an unusual result of failure to comply with this rule. See Phelps v. Louisville Water Company, Ky., 103 S.W.3d 46, 53 (2003); Charash v. Johnson, Ky.App., 43 S.W.3d 274, 281 (2000); and Baker v. Ryan, Ky.App., 967 S.W.2d 591, 593 (1997).

  We have, as in Elwell, taken an overall view of the record, and find no gross error or manifest injustice. The judgment of the Franklin Circuit Court is affirmed."

• Upton v. Upton
  Nonpublished opinion by Judge Guidugli - 2002-CA-002080.pdf

  "We have closely examined this issue, and find no error. We must first note that Mary Ann has not complied with CR 76.12(4)(c)(v), requiring an argument which “shall 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.” Mary Ann has not shown where, nor in what manner, her first argument was raised below, and our review of her exceptions to the commissioner’s recommendations has not uncovered same. As errors to be considered on appellate review must be precisely preserved and identified in the lower court, Skaggs v. Assad, Ky., 712 S.W.2d 947 (1986), and since one may not present one can of worms to the trial court and another to the appellate court, Neal v. Commonwealth, Ky., 95 S.W.3d 843 (2003), we would be justified in summarily affirming the trial court on this issue.

  Assuming, arguendo, that Mary Ann raised this argument below, we find no error in the trial court’s disposition of the two parcels."
  

• Guidugli on Guidugli
  At first blush, one might think these two cases present a distinction here without a difference.  But that would not be the case and would be unfair to Judge Guidugli and the other judges since they are not automatons when looking at the record and addressing the issues.  

  • In Pennington, one counsel ignored the requirement entirely and the other counsel addressed the issue summarily and incompletely in the face of an incredibly voluminous record and even when granted the opportunity to summarily deny the appeal, the Court of Appeals nonetheless reviewed the briefs, considered the issues raise and then ruled that they had "taken an overall view of the record, and find no gross error or manifest injustice."

  • In Upton, appellate counsel was not the same counsel at the trial and was presented with a situation not of counsel's own choosing and advocated his client's interests by addressing  the issues as best as could be done in the brief.  No exceptions had been made to the commissioner's report regarding this first argument with the second argument preserved and addressed.  Apparently, the briefs adequately addressed all the issues raised since the Court of Appeals discussed the issues raised in detail without the necessity of an "overall view".  The CA just did not agree with the appellant.  This case also highlights that appellate decisions sometimes leave out informative tid-bits.  Here, the exceptions to the commissioner's findings were actually filed by the client which left the appellate counsel in an enigma when it came to doing the appeal.  Aggressive advocacy and competent representation required nothing short of addressing the relevant issues and, if necessary, opening another can of worms (a new argument).

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