• The Kentucky Decisions
  • No Ky Supremes Published
  • 40 Nonpublished Ky Ct. App.
  • Western District of Kentucky
  • Sixth Circuit Court of Appeals
• Index to past issues of Law Wire:  www.LouisvilleLaw.com/lawwire/index.htm
• "One-Minute" CLE - Compliments of Judge Schroder regarding abuse of process and directed verdicts.  Some nonpublished opinions are a plethora of hornbook law.

Legal Shorts

• Federal magistrate judge's decision constitutes collateral estoppel for state case

• Truck accident has curb-side appeal for paving contractor

• Husband stuck for part of wife's school loans since used to put food on his table too.

• On the threshold of a scream in reversal of trial courts failure to direct verdict that no fault threshold met for $1,000.

• Judicial immunity covers subsequently dismissed claims against psychiatrist which had no factual basis OR not all shrink-wrapped gifts keep on giving following dismissed allegation of STD

• Judge should have granted plaintiff's motion for directed verdict that she'd met $1000 threshold OR you can put mercury back in a thermometer even when the jury says threshold not met

• Judge not permitted to shorten pretrial deadlines 

• Standing on pleadings alone will not withstand summary judgment

• Defendant's brother's confession after conviction get's him a new trial.  This really was  "another brother" did it defense.

• Defendant not denied due process during sentencing by admission of subsequent indictments

• To grandmother's house we go?  Well, maybe not.  GP visitation can be terminated without evidentiary hearing.  Big Bad Wolf 1; Grandma 0

• A black eye to kid's grandma costs mom her kids (among other things she did). Wolf 1; Grandma 1

• Operating on the premises has its goings and comings while worker gets his bennies when he's asleep at the wheel and  fails to keep on trucking

• Comp claimant not required to have a medical degree to file a claim OR No requirement for claimant to self-diagnose the cause of his symptoms.

• Estoppel to assert client's death for dismissal for failure to timely revive may keep action alive but not client.

• Again, these snappy little snippets of legal stuff can't be cited in court without risking contempt. Yeah, you heard me.  ;^)

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 for the following decisions

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• United States Supreme Court

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• And the Rules of Evidence]

KENTUCKY APPELLATE DECISIONS 
November 3-7, 2003

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

• Kentucky COURT OF APPEALS Decisions - Published and Unpublished
  November 7,  2003
    

  AOC LINKS SUMMARIES OF DECISIONS

  1999-CA-003072.pdf Size: 16 kb Date: 11/5/2003 NONPUBLISHED CARRINGTON V. COM. CRIMINAL  CA affirmed Circuit Court's order requiring the Defendant to register under the Sex Offender's Registration Act. 2001-CA-001018.pdf Size: 33 kb Date: 11/5/2003 NONPUBLISHED WHITE V. LINDA FRANKS, CHAIR OF KY PAROLE BOARD Civil CA affirmed Circuit Court's order denying inmate's motion to vacate its previous order and reaffirming its dismissal of imate’s complaint pursuant to CR 12.02(f). 2001-CA-002122.pdf Size: 39 kb Date: 11/5/2003 NONPUBLISHED COPE V. JACKSON COLLATERAL ESTOPPEL  Adverse factual findings by federal magistrate judge at bond revocation hearing collaterally estopped pro se plaintiff Cope  (and appellant) from denying he was responsible for element of claim. Note:  This was a messy falling out in which Cope was harassing his ex (Jackson) and was on bond with condition to stay away.  Well bond was revoked after he communicated by providing her a compromising photograph he had obtained.  At bond revocation hearing, he was found to have violated terms and locked up.  He later enter a plea to the charges.  However, while he was incarcerated on the federal charges, there was a shooting and an alleged murder for hire scheme with the ex-girlfriend as the victim.  He was eventually convicted for these second set of charges, but then filed a pro-se claim against Jackson and others alleging they conspired to revoke his bond.  Oops. Collaterally estopped. Black-Letter Law - Collateral estoppel and res judicata. This case contains a good discussion and comparison of the two doctrines since the confusion is not limited to non-lawyer litigants. The following language was taken from the opinion compliments of Judge Johnson.  Thanks. The doctrine of collateral estoppel is frequently confused with its counterpart, res judicata. It is important to distinguish the two concepts because res judicata and collateral estoppel apply in different circumstances with different consequences to the individual litigants involved. Collateral estoppel, or issue preclusion as it is sometimes referred to, is viewed as a subdivision of res judicata in Kentucky. The effect of collateral estoppel, as distinguished from res judicata, was recently explained by this Court in Napier v. Jones By & Through Reynolds, Ky.App., 925 S.W.2d 193, 195-96 (1996):  Although collateral estoppel and res judicata are cut from the same cloth, the effect of collateral estoppel is different from that of res judicata :  The basic distinction between the doctrines of res judicata and collateral estoppel, ... has frequently been emphasized. Thus, under the doctrine of res judicata, a judgment "on the merits" in a prior suit involving the same parties or their privies bars a second suit on the same cause of action. Under the doctrine of collateral estoppel, on the other hand, such a judgment precludes relitigation of issues actually litigated and determined in the prior suit, regardless of whether it was based on the same cause of action as the second suit [citations omitted]. In Gossage v. Roberts, [Ky.App., 904 S.W.2d 246 (1995)] this Court stated that "under proper circumstances a criminal conviction may be used for purposes of collateral estoppel in later civil proceedings[.]" [Id. at 248 (citing Roberts v. Wilcox, Ky.App., 805 S.W . 2d 152 (1991))] The Gossage Court went on to hold that "to be so utilized the criminal judgment must of necessity finally dispose of the matters in controversy." [Id.] In Moore v. Commonwealth, Cabinet for Human Resources, [Ky., 954 S.W.2d 317 (1997)] the Supreme Court of Kentucky listed the essential elements of collateral estoppel as follows: (1) identity of issues; (2) a final decision or judgment on the merits; (3) a necessary issue with the estopped party given a full and fair opportunity to litigate; and (4) a prior losing litigant. [Id. at 319. See also Yeoman v. Commonwealth of Kentucky, Health Policy Board, Ky., 983 S.W.2d 459, 465 (1998).] Since the courts of this Commonwealth have not passed on the question of whether the disposition of a bond revocation hearing constitutes a final decision or judgment on the merits, we have reviewed the case law from other jurisdictions for guidance. 2001-CA-002196.pdf Size: 29 kb Date: 11/5/2003 NONPUBLISHED GOFF V. COM. CRIMINAL  On remand from SC for review in light of Norton v. Commonwealth , Ky., 63 S.W.3d 175 (2001) and Fraser v. Commonwealth , Ky., 59 S.W.3d 448 (2001), which required evidentiary hearings on RCr 11.42 motion.  CA stated these decisions were distinguishable, and accordingly, reaffirmed Circuit Court's order denying RCr 11.42 motion to vacate alleging ineffective assistance of counsel without an evidentiary hearing. 2001-CA-002380.pdf Size: 28 kb Date: 11/5/2003 NONPUBLISHED BADHAM V. BADHAM FAMILY LAW, CHILD CUSTODY AND VISITATION   Here husband and wife reached settlement agreement regarding custodial and visitation arrangement regarding their 3 children, and same was read orally into court but was not yet reduced to writing when both parties agreed to the terms as read.  However, the mother later took issue with one part of the agreement.  The trial court should have enforced all of the agreement, except for the part of the agreement that was in dispute, rather than disregarding all terms, including those that were agreed to by the parties. 2002-CA-000160.pdf Size: 36 kb Date: 11/5/2003 PUBLISHED GILBERT V. MURRAY PAVING CO. NEGLIGENCE, CONTRACTOR LIABILITY FOR HIGHWAY PAVING This case involved motor vehicle accident when truck went off the road following repaving of highway.  CA reversed and remanded summary judgment's dismissal finding genuine issues of material fact existed regarding whether the paving drop off was proper and whether there should have been warning signs of the hazardous condition. Black-Letter Law - Negligent road construction for the gov't Judge Johnson again provides us with an excellent summary of the law educating us with the appropriate standards to apply: "In City of Louisville v. Padgett, [Ky., 457 S.W.2d 485, 488-90 (1970)] the former Court of Appeals discussed the scope of a contractor's liability when performing a highway construction contract according to plans and specifications mandated by the Commonwealth:  Ordinarily one contracting with the sovereign Commonwealth of Kentucky who performs his contract in conformity with the plans and specifications of the contract will not be held liable for injury to the public in the absence of a negligent or a [willful] tortious act ... [citations omitted] [emphasis added]. ... The purpose of having the State engineering department for these public improvements is to lay out these projects and to tell the contractor where to do its work. The contractors work is not the engineering job of laying out the project but is merely in doing what it is instructed to do. So long as it does this work as it is instructed to do by its superior in a workman like manner, not negligently, then the contractor is not liable [emphasis added]." "Hence, while the general rule is that a contractor cannot be held liable if it complied with the plans and specifications laid out by the government entity in the construction contract, the Court in Padgett was careful to note that the contractor is not absolved of a duty to perform the work required with reasonable care, i.e., in a non-negligent manner. [See also Combs v.Codell Construction Co., 244 Ky. 772, 773, 52 S.W.2d 719, 720 (1932)  In the case at bar, we conclude that genuine issues of material fact exist with regard to whether Murray Paving performed its obligations under the highway construction contract in a negligent manner." 2002-CA-000526.pdf Size: 26 kb Date: 11/5/2003 NONPUBLISHED BJA, A CHILD V. COM. JUVENILES, AGE FOR ADJUDICATION  KRS 635.510(1) regarding "juvenile sexual offender" refers to the defendant's age at the time of adjudication, not his age at the time the offense was committed.  2002-CA-000567.pdf Size: 25 kb Date: 11/5/2003 NONPUBLISHED TETERICK V. TETERICK DIVORCE, PROPERTY, ATTORNEYS FEES  Court of Appeals affirmed trial courts division of marital property when there was not a 50/50 split of marital assets.  KRS 403.190 states that there must be a just division of marital assets, but there is no requirement that there be an equal division of the marital assets. KRS 403.220 states that attorney fees may be awarded to the other party but same is not required.  As such, it was not error for the court to not award attorney fees. The next issue was whether it was proper for husband to pay a portion of the student loan debt that was incurred for wife to obtain her degree.  The Court relied on Inman v. Inman, Ky., 648 S.W.2d 847 (1982) and Neidlenger v. Neidlenger, Ky., 52 S.W.3d 513 (2001) in finding that it was proper for husband to pay 1/3 of this debt as same was used for living expenses. 2002-CA-000789.pdf Size: 27 kb Date: 11/5/2003 NONPUBLISHED MURPHY V. MURPHY DOMESTIC VIOLENCE ORDERS (DVO) Court of Appeals affirmed trial court ruling that extension of a domestic violence order obtained by a mother against her son was proper.  Son challenged the Order based on the fact he believed KRS 403.750 was unconstitutional, that the original domestic violence order was entered without affording him an evidentiary hearing and that the original domestic order was improperly extended beyond the maximum period of 3 years. The constitutional challenge to KRS 403.750 was not properly preserved because it was not raised in the lower courts.  Payne v. Hall, Ky., 423 S.W.2d 530 (1968).  The issue of whether an evidentiary hearing was had could not be revisited because the original domestic violence order was never appealed, and the Court held that KRS 403.750(2) regarding the 3 year extension was permitted. 2002-CA-000956.pdf Size: 19 kb Date: 11/5/2003 NONPUBLISHED BYRD V. COM. CRIMINAL CA affirmed Defendant's convictions for trafficking in a controlled substance in the first degree and being a persistent felony offender in the second degree.  CA declined to review Defendant's arguments on appeal because of his failure to preserve specific issues with his conditional guilty plea. 2002-CA-001092.pdf Size: 30 kb Date: 11/5/2003 NONPUBLISHED RANK V. MONTGOMERY PROFESSIONAL NEGLIGENCE, JUDICIAL IMMUNITY CA affirmed summary judgment dismissing psychiatrist's libel complaint filed after his former patient who had obtained a verdict against him for professional negligence since the pleadings in the original complaint were protected because of judicial immunity.   In the original complaint Plaintiff's alleged that her treating psychiatrist had sexual relations and infected her with herpes but dismissed the herpes allegations when she learned that neither she nor the psychiatrist had herpes.  The patient obtained did, however, obtain a verdict against the doctor for professional negligence.  The psychiatrist filed the second lawsuit alleging libel.  This was also dismissed since the herpes averment in the complaint was covered by judicial immunity (albeit also reported in the press). In Schmitt v. Mann, [291 Ky. 80, 163 S.W.2d 281, 283 (1942)] the former Court of Appeals discussed the scope of judicial immunity as it relates to allegations made in a complaint:  "The prevailing rule and the one recognized in this jurisdiction is that statements in pleadings filed in judicial proceedings are absolutely privileged when material, pertinent, and relevant to the subject under inquiry, though it is claimed that they are false and alleged with malice (Citations omitted)." 2002-CA-001122.pdf Size: 33 kb Date: 11/5/2003 NONPUBLISHED SMITH V. SMITH DIVORCE, CHILD CUSTODY  Court of Appeals affirms trial court's grant of primary residential custodianship of 3 children to father. Where evidence was that Mom demonstrated violent behavior in the presence of the children when she physically attacked her mother, Mom made comments to one of the children that she did not want him anymore, the children felt unsafe with Mom, and Mom spanked child with a belt and during same she hit his eye, giving him a black eye, granting custody to dad was proper KRS 403.340(2). 2002-CA-001127.pdf Size: 22 kb Date: 11/5/2003 NONPUBLISHED GREEN V. JACKSON NO FAULT ACT, THRESHOLD VERDICT  CA reversed jury verdict that plaintiff had not met $1,000 threshold in medical expenses and that trial court should have directed verdict on this issue for the plaintiff.  The only medical testimony was from treating physicians all of whom testified that the accident was the cause of plaintiff's soft tissue injuries.  There was nothing to contradict the medical testimony or for the jury to decide regarding the threshold and plaintiff's $7,000 in medical expenses. Judge Baker dissented finding the medical findings were disputed and agreed that the medical expenses may be presumed reasonable they must also be reasonably necessary.  Here there was a subsequent accident and pre-existing arthritis such that the jury could conclude whether or not the subjective complaints of pain necessitate the medical treatment received. Note:  Not too many of these threshold verdicts are reversed since they usually have a basis or argument for the jury to blame something else for the cause of the injuries or the impact was not significant enough to cause the injuries.  The typical defensive trifecta to soft tissue injuries is no impact, no injury, or not our injury.  Here, the CA took an interesting tack and side-stepped the deference to the jury's findings by addressing the denial of the Plaintiff's motion for a directed verdict on the $1,000 threshold issue.  Admittedly, the appellate decisions are sparse and there may be more out there in this decision than meets the eye, but the CA indicated there was nothing to refute the evidence presented.  Apparently, no IME, no other accident during the period in question (apparently there may have been a second accident but the treatment did not go that far), and no question of the significance of the impact (in fact fault was admitted), and nothing to contradict the medical opinions other than the medical admissions that the plaintiff did have pre-existing arthritis.  Tactic for Plaintiffs Lawyers - Don't put all your eggs in one basket on these MIST (minor impact, soft tissue cases) on whether or not the judge should or should not have given a jury instruction on the no-fault thresholds but rather move for a directed verdict on the issue as well which raises a different standard for appellate review.  Although the Green court did not address the standard for a directed verdict specifically, it looks as if it was in the back of their minds in reaching the decision.  In any event, articulate facts and reasons for your directed verdict and why you object to the instructions.  Silence is not golden. Where there is proof that the expenses were not necessary, a proper jury instruction should be submitted. Thompson v. Piasta, Ky.App., 662 S.W.2d 223 (1983).  See, Bolin v. Grider, Ky., 580 S.W.2d 490 (1988).  'Threshold' instructions whereby the jury is asked the interrogatory whether or not the plaintiff has met threshold are proper per Drury v. Spalding, Ky., 812 S.W.2d 713 (1991) and are usually presented when the defense thinks the evidence supports that possibility.  The twist in the decision of Green v. Jackson is that sending the case to the jury is usually the safe method.  However, in light of the Miller v. Swift (zero pain and suffering) issue and now the threshold verdict issues, why not just drop the threshold instruction altogether and send the matter to the jury.  If the jury awards nothing for the medicals under the normal specials instruction, then that should resolve the issue without poisoning the well by giving the jury the opportunity to avoid the issue at the very first instruction and avoid all the tough questions. A prior nonpublished decision and commentary: Copeland v. Mason 2002-CA-000981.pdf No Fault, Threshold Instructions CA affirmed jury verdict and instructions.  Jury did not have answer instruction apportionment since it had already concluded that the plaintiff had not met the no-fault threshold of permanent injury or $1,000 in medicals (instruction was an interrogatory and if answered no, the jury was to return to the court room).  Even though the parties had stipulated medical expenses paid were over $9,000, this did not mean that causation was stipulated and jury could conclude no threshold.   The objections to the threshold instruction and medical expenses were not preserved, because plaintiff did not object but only asked the court to require a finding on both parts of the Instruction. Commentary.  Although the CA cited nothing more than KRS 304.39-060(2), those with a questioning mind might take a look at Drury v. Spalding, 812 S.W.2d 713 (Ky., 1991) (no fault instructions and  the aggravation of pre-existing injuries ); and  Thompson v. Piasta, Ky.App., 662 S.W.2d 223 (1983).  Even though nonpublished opinions are not to be cited, they do provide outstanding guidance on preserving the appeal and objecting to the instructions with reasons. 2002-CA-001257.pdf Size: 30 kb Date: 11/5/2003 NONPUBLISHED SPICER V. COM. CRIMINAL  CA affirmed Defendant's convictions and 10 year sentence following conditional guilty pleas to possession of a handgun by a convicted felon  and PFO II.  The seizure of the handgun was proper under the plain view doctrine.  Defendant's statements to police were voluntary. 2002-CA-001328.pdf Size: 32 kb Date: 11/5/2003 PUBLISHED KLEINHENZ V. QUIGLEY CO., INC. DISCOVERY, TRIAL SCHEDULE Trial judge abused discretion by improperly denying estate opportunity to complete discovery and failed to adhere to trial court's own master pretrial deadlines set up for asbestos litigation.  "Moore's Federal Practice, Vol. 6, pages 2124, 2125, and again at page 2128: "On motion for summary judgment by a defendant on the ground that plaintiff has no valid claim, the defendant, as the moving party, has the burden of producing evidence of the necessary certitude, which negatives the opposing party's (plaintiff's) claim. This is true because the burden to show that there is no genuine issue of material fact rests on the party moving for summary judgment, whether he or his opponent would at trial have the burden of proof on the issue concerned * * *." (Emphasis added in original). [Hoskins' Adm'r v. Kentucky Ridge Coal Co., Ky., 277 S.W.2d 57, 58-59 (1955)]. Note:  At first blush, most casual readers would be surprised by the trial court's decision, but affidavits had been filed by the defendant in support of the motion to dismiss, and the standard guidelines were quite generous.  You would thing that a judge ought to be able to change their mind and fine tune a particular order for a particular litigation.  The CA considered the time changes to discovery were unreasonable under the circumstances of the case and effectively shifted the burden of proof on the motion for summary judgment. 2002-CA-001573.pdf Size: 41 kb Date: 11/5/2003 PUBLISHED JACKSON V. HARRIS REVIVING CAUSE OF ACTION IN ON-GOING LITIGATION In negligence action arising from motor vehicle accident, defendant died after suit was filed and defendant's attorney did not tell anyone but then moved to dismiss the complaint for failure to revive within one year of defendant's death.  Court of Appeals held defendant's attorney was estopped from asserting the right to dismiss for plaintiff's failure to substitute estate as a party within one year of defendant's death.  Under KBA v. Geisler,  attorney for defendant motorist had an ethical duty to disclose the death of defendant motorist to plaintiff motorist, and attorney's misrepresentation caused plaintiff motorist to rely to her detriment on her belief that defendant motorist was alive. Comment:  Maybe this will now remove that silly little interrogatory that has popped up post-KBA v. Geisler which asks the other party to supplement answers should they die.  I have always referred to this as the "Lazarus Interrogatory" and wondered what would be scarier - a malpractice action for failing to revive the lawsuit or having a corpse file an answer under oath.  Well, now you have it.  Don't try and hide the body anymore or you could end up with a skeleton in your closet.  Silence does not satisfy the ethical obligation, and you should file a suggestion of death and be fast about it since the Court of Appeals in this case stated that "in Kentucky, a lawyer whose client dies has an ethical duty to disclose that fact to opposing counsel the next time they communicate."   Of course, what happens if the case is inactive, and the attorney sits back and passively lets time fly by???   2002-CA-001591.pdf Size: 27 kb Date: 11/5/2003 NONPUBLISHED BLUE SKY SEWER SERVICE, INC. V. COM. SUMMARY JUDGMENT, OPPOSING  CA affirmed summary judgment.  Party opposing did not offer any affidavits or evidence in support of its position regarding exceedences to get around problems with environmental laws in construction project.  "There are no affidavits by anyone from Blue Sky reporting this "promise", or any other evidence of such. An allegation is not enough to overcome a motion for summary judgment. In City of Florence, Kentucky v. Chipman, Ky., 38 S.W.3d 387, 390 (2001), our Supreme Court stated, "The party opposing ... summary judgment motion cannot defeat it without presenting at least some affirmative evidence showing the existence of a genuine issue of material fact for trial." The Court then cited Hoke v. Cullinan, Ky., 914 S.W.2d 335 (1995), with approval, for the statement "upon the trial court's determination that there are no such disputed facts, summary judgment is appropriate." Chipman, 38 S.W.3d at 390. Blue Sky presented no evidence of promises that could be used to consider the estoppel argument." 2002-CA-001634.pdf Size: 37 kb Date: 11/5/2003 NONPUBLISHED BROOKS V. COM. CRIMINAL  In 2-1 decision, CA reversed and remanded Defendant's conviction and 5 year sentence for Robbery 2nd.  TC erred by denying Defendant's motion for new trial based upon newly discovered evidence.  Here, the Defendant's brother tendered an affidavit with the motion admitting guilt to the crime.  CA rejected the Commonwealth's contention that Defendant did not demonstrate due diligence in obtaining this information.   "The rule is that in order for newly discovered evidence to support a motion for new trial in a criminal case it must be of such decisive force that it would, with reasonable certainty, have changed the verdict or that it would probably change the result if a new trial should be granted.  [N]ewly discovered evidence which merely impeaches or is collateral is insufficient unless it impeaches the only material witness in the case."   Note:  This decision has to make prosecutors cringe.  On the surface, it appears that the Defendant had a free shot with a jury and now gets a second shot after his brother came out of nowhere to claim guilt.  I wouldn't be surprised if this one was reversed by the SC.   2002-CA-001653.pdf Size: 24 kb Date: 11/5/2003 NONPUBLISHED STATTS 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-001684.pdf Size: 33 kb Date: 11/5/2003 NONPUBLISHED DANIELS V. COM. CRIMINAL - Sentencing In 2-1 decision, CA affirmed TC's sentence for Defendant convicted of two counts of trafficking in a controlled substance.  Defendant's due process rights were not violated when the TC considered later offenses for which she had been indicted, but not convicted, in imposing consecutive sentences instead of the concurrent sentences recommended by the jury.   "We cannot agree with the appellant that the language of the statutes or the rule in any way limits what evidence the trial court may use in determining whether to follow a jury’s recommendation.   Under Kentucky’s bifurcated sentencing procedure, it is the jury, not the judge, who determines the penalty.  Kentucky sentencing statutes and RCr 11.02 give the trial judge broad discretion to accept or reject the recommendations of the jury regarding whether sentences should be served concurrently or consecutively. 'The jury’s recommendation is only that, and has no mandatory effect.'  The United States Supreme Court has held that the admission of evidence of unadjudicated offenses at a sentencing proceeding does not violate due process."   2002-CA-001694.pdf Size: 34 kb Date: 11/5/2003 NONPUBLISHED McCROBIE V. ANDERSON ABUSE OF PROCESS, ATTORNEY TESTIFYING Trial court did not commit error by denying defendant's motion for directed verdict in abuse of process claim or for allowing plaintiff's attorney to testify in the case since he did not act as her advocate during the case but rather the attorney's law partner presented the matter at trial.  "Looking at the record in this case, we cannot say that the jury’s verdict is so palpably or flagrantly against the evidence as to merit a reversal. The record reveals that Barbara [the defendant] was only pursuing the legal remedies available to her after Susan [plaintiff herein] rejected the offer to resolve this matter." Note:  We took the short black-letter outtakes and made them a one-minute CLE on directed verdicts and abuse of process compliments of Judge Schroder. 2002-CA-001743.pdf Size: 19 kb Date: 11/5/2003 NONPUBLISHED SMALLWOOD V. COM. CRIMINAL  CA affirmed TC's denial of pro se petition for an amendment of sentence pursuant to CR 60.02.  Conviction for both possession of a firearm by a convicted felon and the enhancement per KRS 218A.922 did not constitute double jeopardy. 2002-CA-001748.pdf Size: 97 kb Date: 11/5/2003 NONPUBLISHED KENTUCKY SCHOOL BOARDS INSURANCE TRUST V. BOARD OF EDUCATION OF WOODFORD COUNTY, KENTUCKY INSURANCE, COVERAGE, EXCLUSIONS CA held "the negligence and civil rights claims brought by [school student] did not arise out of an assault and battery or bodily injury. Because the alleged  liability of the Board is predicated upon its conceptually independent negligent supervision,  application of the subject exclusions would effectively eviscerate the errors and omissions policy altogether contrary to Kentucky law. Accordingly, the judgment declaring that [the board's insurance company] has a duty to defend the Board in the underlying action under the terms of the governing policy is affirmed." Note:  Lengthy and detailed opinion which scrutinizes the school board's insurance policy to provide coverage. 2002-CA-001750.pdf Size: 28 kb Date: 11/5/2003 NONPUBLISHED MARTIN V. COM. CHILD SUPPORT  Court of Appeals upheld trial court's inclusion of SSI in determining her child support obligation based on Commonwealth ex.rel. Morris v. Morris, 984 S.W.2d 840 (1998). 2002-CA-001828.pdf Size: 19 kb Date: 11/5/2003 NONPUBLISHED SINNETT V. COM. CRIMINAL  CA affirmed TC's denial of the Defendant's pro se motion for relief pursuant to CR 60.02. Defendant’s changed physical condition is not an extraordinary condition as contemplated by CR 60.02(f).  No evidence exists warranting a new trial pursuant to CR 60.02(b). 2002-CA-002050.pdf Size: 35 kb Date: 11/5/2003 PUBLISHED ROBINSON V. MRS. SMITH'S BAKERIES WORKERS COMP  Workers' compensation claimant's obligation to report his work-related wrist injury (carpal tunnel syndrome or repetitive stress disorder) was not triggered when his treating physician stated that his condition "could be" work-related was not sufficient to give notice to worker that he had suffered a work-related injury. "Medical causation is a matter for the medical experts." Hill v. Sextet Mining Corp., Ky., 65 S.W.3d 503, 507 (2001)., The Supreme Court went a step further and held that an injured worker suffering from a work-related cumulative trauma condition is not required to give notice that he has sustained a work-related gradual injury until he is informed of that fact by a medical expert. Id.  The physician never informed the claimant that his condition was work-related; he simply opined that it "could be."   A claimant is not required to self-diagnose the cause of his symptoms, nor is he required to draw inferences from an ambiguous diagnosis.  Id.  2002-CA-002163.pdf Size: 25 kb Date: 11/5/2003 NONPUBLISHED JEFFERSON COUNTY BOARD OF ZONING ADJ. V. THORNTON OIL  ZONING  Thornton's sought a permit to alter a nonconforming freestanding business sign.  The changes proposed were to reduce and modernize the portions of the sign structure used for displaying messages.  The sign's supporting framework was to remain unchanged. Jefferson County Planning and Development Services concluded that the sign was a legal nonconforming use (in other words the sign was legal when erected), but was "taller and greater in area than the regulations currently allow."  Planning concluded that the proposed changes constituted a replacement of a structural element which required the sign to be brought into compliance with current regulations. Thornton's appealed to the Board of Zoning Adjustment, which denied the appeal.  Thornton's then appealed to the circuit court.  The circuit court reversed, concluding that the proposed changes did not constitute a "substantial alteration."  (emphasis in original)   The Board of Zoning Adjustment appealed to the Court of Appeals. The Court of Appeals first distinguished legal from illegal nonconforming uses.  Legal nonconforming uses are pre-existing structural uses which are legally entitled to continue.  Illegal nonconforming uses are nonconforming structures built after adoption of the zoning ordinance with which they do not comply.  They are not entitled to continue because they were illegally constructed.  The Court concluded that the Board of Zoning Adjustment had no power to hold that the sign was an illegal non-conforming structure because Planning had treated the sign as legally nonconforming.  The issue of legal versus illegal nonconforming structure had not been raised before the Board, which the Court of Appeals described as a quasi-judicial body with the power to hear appeals but without the power to "usurp the powers of the zoning enforcement officer." The Court then addressed the proposed changes to the sign.  It noted that a legal nonconforming use has a constitutionally protected property right and that ordinances that permit alterations in such uses should be liberally construed.  The Court noted that Thornton's proposed to decrease the total height of the sign and the total square footage of signage area.  It concluded that the changes were permitted by local and state law and affirmed the decision of the circuit court.  COMMENT:  The opinion is a clear statement of the rule of construction that statutes and ordinances permitting modifications to "legal nonconforming uses" should be liberally construed.  The Court's limitation on the Board of Zoning Adjustment's ability to raise issues not brought to it by the parties is also noteworthy.  2002-CA-002202.pdf Size: 22 kb Date: 11/5/2003 NONPUBLISHED JARVIS V. COM. CRIMINAL  CA reversed the second order of the TC, entered after a new indictment was filed, retroactively asserting that an earlier dismissal was "without prejudice."  CA held that the earlier dismissal was made with prejudice and that the later order does not affect the earlier dismissal . 2002-CA-002239.pdf Size: 19 kb Date: 11/5/2003 NONPUBLISHED CALDWELL V. COM. CRIMINAL  CA affirmed Defendant's conviction and 4.5 year sentence for Reckless Homicide.  Defendant was not entitled to a directed verdict.  TC did properly consider probation. 2002-CA-002289.pdf Size: 33 kb Date: 11/5/2003 NONPUBLISHED HOTMIX ASPHALT EQUIPMENT CO. V. RELIABLE ASPHALT PRODUCTS LICENSE, INJUNCTIONS As so often happens when multiple companies are started and the subsequent property is passed from one company to another while the principals remain the same, OOOPPPPS!!! we forgot who owned what.  Hotmix filed for temporary injunction and the trial court found that they didn't own the right to assert the injunction.  Hotmix countered that the true owner had verbally given them the authority through the license agreement to go after the injunction.  Tom Knopf said NO SOUP FOR YOU! C.A. agrees with the master mediator.  2002-CA-002328.pdf Size: 35 kb Date: 11/5/2003 PUBLISHED TANDY V. CHRIST CHURCH UNITED METHODIST, INC. REAL PROPERTY, EASEMENTS In order to enjoin the church, the adjoining landowners were not required to show that the church's proposed parking lot interfered with landowners actual use of the easement. 2002-CA-002354.pdf Size: 28 kb Date: 11/5/2003 NONPUBLISHED BRENYO V. WITTENBARGER GRANDPARENT VISITATION Court of Appeals examines proper procedure a trial court must follow in terminating previously ordered grandparent visitation.  Court affirms trial court's termination of grandparent visitation.  In this opinion, the Court of Appeals examines the history of the grandparent visitation rights.  In doing so, the Court of Appeals holds that no evidentiary hearing was required to terminate the grandparent rights.  Additional support for the decision is the fact that the grandmother still had contact with the child when her son had visitation.   2002-CA-002371.pdf Size: 26 kb Date: 11/5/2003 NONPUBLISHED BROWN V. COM. CRIMINAL  CA affirmed TC order that held pocket knife qualified as a deadly weapon under KRS § 527.070.  TC properly found that the knife did not meet the ordinary pocketknife exception of KRS 500.080(4)(c).  TC did not err in excluding excepts from book. 2002-CA-002407.pdf Size: 22 kb Date: 11/5/2003 NONPUBLISHED COM. V. HARBER CRIMINAL - Search & Seizure CA reversed TC's order suppressing evidence obtained as a result of search of Defendant.  Police properly approached Defendant in a high crime area.  Police properly searched Defendant as a safety precaution after he refused to remove his hands from the back of his waistband.  Upon search, police properly located cocaine that "fell from his pocket".    Note:  This case is a classic example of the "domino" approach to probable cause.  Each step of the search is justified by a rationale proffered by the police that cannot be objectively corroborated.  Curiously, the CA abandoned the discretion normally afforded to the TC in these decisions.    2002-CA-002421.pdf Size: 34 kb Date: 11/5/2003 PUBLISHED CALLOWAY COUNTY FISCAL COURT V. MURRAY-CALLOWAY COUNTY PUBLIC HOSP. CORP. GOVERNMENT APPROPRIATIONS  Trial court erred in determining that the Hospital was authorized to delegate its public duties to a private entity or to transfer public funds to a private foundation without the approval of the Fiscal Court.  2003-CA-000122.pdf Size: 31 kb Date: 11/5/2003 NONPUBLISHED ADAMS V. COM. CRIMINAL  CA reversed Defendant's convictions following TC's order denying his motion to withdraw his guilty pleas.  TC's imposition of mandatory period of conditional discharge mandated by KRS 432.043 was, in effect, rejection of plea bargain.  TC's revision entitled Defendant to withdraw his plea.   2003-CA-000210.pdf Size: 17 kb Date: 11/5/2003 NONPUBLISHED BYRD V. COM. CRIMINAL - Shock Probation CA affirmed TC's denial of Defendant's motion for shock probation.  There is no entitlement to a hearing on a motion for shock probation. 2003-CA-000313.pdf Size: 19 kb Date: 11/5/2003 NONPUBLISHED FRAZIER V. COM. CRIMINAL  CA affirmed Defendant's convictions and 12 year sentence for Possession of a Controlled Substance, First Degree, and being a Persistent Felony Offender, First Degree.  CA rejected numerous claims of error by Defendant. 2003-CA-000877.pdf Size: 22 kb Date: 11/5/2003 NONPUBLISHED WARRIOR COAL CO. LLC V. STROUD WORKERS COMP Court of Appeals affirmed the ALJ's application of the "operating premises" exception to the "going and coming" rule and held claimant who fell asleep on gravel road built and maintained by the employer when he had a vehicular accident and was injured in his vehicle on the way to work and near mine was covered by workers compensation. Note:  Interesting little case that discusses many of the activities which do not deprive a worker of coverage for workers compensation while coming and going to work.   2003-CA-000963.pdf Size: 22 kb Date: 11/5/2003 NONPUBLISHED ROAD FORK DEVELOPMENT CO V. SMITH WORKERS COMP "The sole issue herein is whether the Workers' Compensation Board erred in affirming the Administrative Law Judge's application of the "2x" multiplier under KRS 342.730(1)(c)2. [Court of Appeals] vacate[d] the Opinion of the Board and remand[ed] with direction that the ALJ make additional findings and recalculate the award."

KENTUCKY FEDERAL DECISIONS 
Nov. 10-14, 2003

• Western District Court - Kentucky
  

  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. Thomas v. Lawrence, Trustee   Appeal from the decision of the United States Bankruptcy Court granting partial summary judgment to the Chapter 7 trustee, and avoiding the transfer of certain real property of the debtor to his sister. Held: Decision of the Bankruptcy Court affirmed. Critchfield v. Continental Casualty Co.   Attorney's fees and costs justified in this ERISA action, the court having previously granted summary judgment in favor of the plaintiff that denial of benefits had been arbitrary and capricious. Continental Casualty's handling of the claim was "blameworthy" action, in accordance with the King standard   Caddell v. Pepsi Americas   Motion for summary judgment in personal injury action. Held: Summary judgment granted in favor of Pepsi Americas. The plaintiff's cannot utilize the doctrine of res ipsa loquitur to establish liability on the part of Pepsi as she is unable to establish that Pepsi had full control of the instrumentality which caused the injury. Uppendahl v. American Honda Motor Co.   Motion to quash service of process made upon the defendant by mail to its corporate headquarters in Japan. Held: Service of process by direct mail through the kentucky Secretary of State to HMC in Japan is not authorized by Artilce 10(a) of the Hague Convention. Motion to quash granted. Plaintiff granted ninety days to effect proper service. KFC Corporation v. Mott   Motion for judgment on the pleadings in action alleging breach of various franchise and advertising agreements and promissory notes. Held: Judgment granted in favor of KFC on liability. The counterclaim alleging breach of contract by KFC and breach of the covenant of good faith and fair dealing does not preclude judgment in favor of KFC on its contract claims. Judgment on the pleadings denied as to damages.

• Sixth Circuit Court of Appeals 
  
  

  Opinion DocketSheet Pub Date Short Title/District 03a0398p.06 02-3433 2003/11/12  Castleberry v. Brigano     Southern District of Ohio at Columbus 03a0399p.06 01-4326 2003/11/12  Tom-Lin Enterprises v. Sunoco Inc (R&M)     Southern District of Ohio at Columbus 03a0400p.06 02-5536 2003/11/12  USA v. Helton     Eastern District of Kentucky at Pikeville 03a0401p.06 02-3842 2003/11/12  Carter v. Univ of Toledo     Northern District of Ohio at Toledo 03a0402p.06 02-3454 2003/11/13  Gettings v. Bldg & Laborers     Northern District of Ohio at Cleveland 03a0402p.06 02-3535 2003/11/13  Gettings v. Bldg & Laborers     Northern District of Ohio at Cleveland 03a0403p.06 02-1394 2003/11/13  USA v. Arredondo     Eastern District of Michigan at Bay City 03a0404p.06 02-3361 2003/11/13  Grosjean v. First Energy Corp     Northern District of Ohio at Toledo 03a0405p.06 01-4359 2003/11/14  Wright v. Heyne     Southern District of Ohio at Columbus 03a0406p.06 02-5540 2003/11/14  USA v. Johnson     Eastern District of Tennessee at Knoxville

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

Directed Verdicts - Standard 

•  Lovins v. Napier, Ky., 814 S.W.2d 921, 922 (1991)
  When a motion for directed verdict is made, the trial court must consider the evidence in its strongest light in favor of the party against whom the motion was made and must give him the advantage of every fair and reasonable intendment that the evidence can justify.

• Buchholtz v. Dugan, Ky. App., 977 S.W.2d 24, 26 (1998)
  A directed verdict is appropriate only when, drawing all inferences in favor of the nonmoving party, a reasonable jury could only conclude that the moving party was entitled to a verdict.

• Taylor v. Kennedy, Ky. App., 700 S.W.2d 415, 416 (1985)
  The trial court cannot grant a motion for directed verdict "unless there is a complete absence of proof on a material issue in the action, or if no disputed issue of fact exists upon which reasonable men could differ."  On appeal, the appellate court considers the evidence in the same light. Lovins, 814 S.W.2d at 922.

Abuse of Process

• Bonnie Braes Farms, Inc. v. Robinson, Ky. App., 598 S.W.2d 765, 766 (1980)
  The tort of abuse of process involves "the irregular or wrongful employment of a judicial proceeding."

• Simpson v. Laytart, Ky., 962 S.W.2d 392, 394 (1998)
  The essential elements of an action for abuse of process include an ulterior purpose and a willful act in the use of the process not proper in the regular conduct of a proceeding. Accordingly, in order for an abuse of process claim to be viable, some definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process is required. There exists no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions. (citing W. Prosser, Handbook of the Law of Torts, Section 121 (4th ed. 1971)).

• Raine v. Drasin, Ky., 621 S.W.2d 895, 902 (1981)
  Abuse of process consists simply of "the employment oflegal process for some other purpose other than that which it was intended by the law to effect."  See also, Flynn v. Songer, Ky., 399 S.W.2d 491(1966)
  

   

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