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).
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2001-CA-002122.pdf
Size: 39 kb
Date: 11/5/2003
NONPUBLISHED
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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 Well bond was
revoked after he communicated by providing her a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.
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2001-CA-002196.pdf
Size: 29 kb
Date: 11/5/2003
NONPUBLISHED
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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.
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2001-CA-002380.pdf
Size: 28 kb
Date: 11/5/2003
NONPUBLISHED
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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.
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2002-CA-000160.pdf
Size: 36 kb
Date: 11/5/2003
PUBLISHED
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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."
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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
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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.
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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.
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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)."
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2002-CA-001122.pdf
Size: 33 kb
Date: 11/5/2003
NONPUBLISHED
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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).
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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.
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2002-CA-001257.pdf
Size: 30 kb
Date: 11/5/2003
NONPUBLISHED
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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
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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.
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2002-CA-001573.pdf
Size: 41 kb
Date: 11/5/2003
PUBLISHED
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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???
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2002-CA-001591.pdf
Size: 27 kb
Date: 11/5/2003
NONPUBLISHED
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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.
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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."
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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.
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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.
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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." |
