KENTUCKY APPELLATE DECISIONS 
November 17-21 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the Kentucky Administrative Office of the Court's (AOC) web site at www.KyCourts.net which contains both published and unpublished opinions of the Kentucky Supreme Court and Kentucky Court of Appeals. First, opinions that are labeled "NOT TO BE PUBLISHED" shall never be cited or used as authority in any other case in any court of this state.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 This is true even after the unpublished opinions become final.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• Kentucky COURT OF APPEALS Decisions - Published and Unpublished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 21,  2003
    

  AOC LINKS SUMMARIES OF DECISIONS

  2001-CA-002295.pdf Size: 36 kb Date: 11/19/2003 NONPUBLISHED WRIGHT V. WOODEN FAMILY LAW, CHILD SUPPORT, VISITATION Father in prison wanted visitation with child who lived with mother and new husband.  Trial Court held the standard regarding visitation to be "whether it was in the child's best interest to visit with father in prison".   Court of Appeals held that applying this standard was in error due to Hornback v. Hornback, Ky.App., 636 S.W.2d 24 (1982). In Hornback, the Court held that a noncustodial parent has absolute entitlement to visitation under KRS 403.320(1) unless there is a finding of serious endangerment to the child. Therefore the trial court should have applied KRS 403.320, rather than the "best interest" standard in determining visitation. Additionally, the Court of Appeals examined Smith v. Smith, Ky.App., 869 S.W.2d 55 (1994), wherein an inmate was denied visitation with his daughter.  The Court of Appeals in Smith held that so long as there was no evidence of any harm that would come to the child by traveling to the prison to see her father, visitation should have been ordered. Based on KRS 403.320 and Smith, the Court of Appeals in this case reversed the trial court. 2001-CA-002708.pdf Size: 18 kb Date: 11/19/2003 NONPUBLISHED WILSON V. TER-CAT, INC. NEGLIGENCE, DRAM SHOP CA affirmed Trial Court's summary judgment dismissing plaintiff's dram shop claims against Cat's Liquors which had sold alcoholic beverages to a minor, who had shared them with the driver of a vehicle which wrecked, severely injuring Wilson, a passenger in the vehicle.  The minor who had bought the alcohol was also a passenger in the vehicle, but Wilson was the only occupant who received severe injuries in the accident.  Although DeStock # 14, Inc. v. Logsdon, Ky ., 993 S.W.2d 952 (1999), held that dram shop  is entitled to complete indemnity from the driver of the vehicle, the injured party Wilson had signed a release of the driver which included a provision requiring Wilson to hold the driver harmless from dram shop's  indemnity claim there so that there could be no recovery by Wilson from Ter-Cat [dram shop]. Note:  KRS 413.241 Legislative finding -- Limitation on liability of licensed sellers or servers of intoxicating beverages -- Liability of intoxicated person. 2002-CA-000499.pdf Size: 19 kb Date: 11/19/2003 NONPUBLISHED AUDEN V. STUBBS DIVORCE (BOTH M.D.'s), MAINTENANCE, VALUATION OF MEDICAL PRACTICE,   Two doctors get divorced.  They have 2 kids.  Wife gets maintenance of $3,500.00 per month for 8 years.  The award was proper because trial court considered the factors contained in KRS 403.200, and husband failed to meet his burden of showing that the trial court abused its discretion or that the findings of fact were clearly erroneous pursuant to Russell v. Russell, Ky.App., 878 S.W.2d 24 (1994). Husband also appealed, arguing that the trial court erred in valuing his medical practice.  Court of Appeals affirmed, holding that husband failed to convince them that the trial court's decision was against the weight of the evidence. Clark v. Clark, Ky.App., 782 S.W.2d 56 (1990). 2002-CA-000562.pdf Size: 55 kb Date: 11/19/2003 NONPUBLISHED GRIGGS V. COM. CRIMINAL CA affirmed Defendant's conviction for the misdemeanor offense of Impersonating a Public Servant.   (1) TC did not  compromise Grigg's  right to a fair trial by threatening witness with contempt after attempting to invoke 5th Amendment protection; (2) the testimony provided by the Commonwealth’s handwriting expert was properly admitted ; (3) due process rights were not violated as a result of expert's testimony; (4) the trial court did not abuse its discretion by permitting Defendant's former attorney(s) to testify against him; (5) the trial court did not err by failing to grant  motion for a directed verdict as to the charge of impersonating a peace officer; (6) TC properly instituted conditions of bail on appeal; and (7)  there was no cumulative error that warranted reversal.   Note:   This case presented an odd set of facts involving several local attorneys.  These facts include attorneys testifying against their client, an attorney giving a press conference, an attorney giving his client a handwriting exam, and allegations of forged tickets to the Comedy Caravan. 2002-CA-000661.pdf Size: 44 kb Date: 11/19/2003 PUBLISHED BFI WASTE SYSTEMS OF N.A., INC. V. HUNTINGTON WOODS NEIGHBORHOOD ASS'N, INC. ADMINISTRATIVE LAW, GOVERNMENT CONTRACTING On March 10, 2000, BFI Waste Systems and Franklin County Fiscal Court into and entered into an agreement in which BFI would provide solid waste disposal services to the county and would pay the county 5.75% of all gross receipts received from BFI’s acceptance of waste from outside the county.  In exchange, the Fiscal Court agreed to allow BFI to expand their Franklin County Landfill.  This did not sit well with the Huntington Woods Neighborhood Association, a group of citizens residing in the subdivisions across the street from the landfill. Huntington filed suit in Franklin County Circuit Court claiming the agreement between BFI and the Fiscal Court granted a franchise in violation of the competitive bidding requirements of § 164 of the Kentucky constitution.  The trial court granted summary judgment in favor of the Huntington group. On appeal, BFI and the Fiscal court (“the appellants”) argued that the agreement did not grant BFI any rights or privileges not available to the public at large.  The Court of Appeals disagreed, stating the agreement did, in fact, grant BFI “the right or privilege to expand its landfill.”  The CA was equally unmoved by appellant’s argument that, in entering into the agreement, the Fiscal Court had been acting in a proprietary, rather than governmental capacity and thus, could not be deemed to have granted a franchise to BFI.  The CA pointed out that control of solid waste management is vested in county fiscal courts pursuant to KRS 67.083(2).  Accordingly, the Court of Appeals unanimously upheld the trial court’s decision that the agreement a) granted a franchise to BFI, which was b) subject to bidding and advertisement requirements consistent with § 164 of the Kentucky Constitution. AFFIRMED. 2002-CA-000839.pdf Size: 20 kb Date: 11/19/2003 NONPUBLISHED CARMACK V. HALL, M.D. MEDICAL NEGLIGENCE, INFORMED CONSENT Affirmed directed verdict dismissing medical negligence claim (right modified radical mastectomy) based upon informed consent since there was no expert testimony that the physician's action in obtaining consent was in not accordance with the accepted standard of medical practice among members of the profession with similar training and experience. Black Letter Law - Informed Consent in Med Neg: "An action based on lack of informed consent "is in reality one for negligence in failing to conform to a proper professional standard...." Holton v. Pfingst, Ky., 534 S.W.2d 786, 788 (1975). As in any medical malpractice case, the general rule is that expert testimony is required to negate informed consent. Keel v. St. Elizabeth Medical Center, Ky., 842 S.W.2d 860, 862 (1992). In Keel, the hospital administered a CT scan that involved injecting a contrast dye into the patient's system. The patient later developed thrombophlebitis at the site of the injection. The Supreme Court found that expert testimony was not required to establish informed consent in this case because the patient was given absolutely no information whatsoever regarding the risks and hazards of the procedure. ... Thus, Keel is limited in its application to situations where no information is given to the patient regarding the risks and hazards of the procedure. (Emphasis added). Cute (or not so cute) Comment:  Can anyone explain the absurdity of requiring an expert to testify on the nature of the informed consent given to a layman who obviously has no medical expertise.  It seems that it is not a question of the person giving the consent understanding what is happening but rather it's a question of expertise of the warning.  If informed means anything it should mean that the patient has been informed in a meaningful and understanding manner the nature of the risks involved and that he/she knowingly agreed to those risks that are expressly addressed and those that reasonably follow in the absence of an emergency situation (when informed consent should take second seat to saving a life unless expressly contrary to the patient's expressed wishes if so discussed).   2002-CA-000846.pdf Size: 21 kb Date: 11/19/2003 NONPUBLISHED WADDELL V. COM. CRIMINAL CA affirmed in part and reversed in part Jefferson Circuit Judge Denise Clayton's order denying pro se Defendant's RCr 10.10 motion to correct and amend the final judgment and sentence.  TC properly ran sentences consecutive.  TC reversed by failing to amend "Murder" conviction to read "Wanton Murder". 2002-CA-001340.pdf Size: 29 kb Date: 11/19/2003 NONPUBLISHED RAY V. COM. CRIMINAL  CA affirmed Defendant's conviction for Robbery 1st.  Defendant was not entitled to a directed verdict of acquittal. 2002-CA-001424.pdf Size: 17 kb Date: 11/19/2003 NONPUBLISHED SCNITZLER V. COM. CRHIMINAL  CA vacated the judgment of the Boone Circuit Court, and ordered the judgment to be amended to reflect that Schnitzler’s Boone County sentence is to be served concurrently with any sentence received in Kenton County to reflect the terms of his plea bargain agreement.  The Commonwealth agreed that Schnitzler was entitled to relief. 2002-CA-001457.pdf Size: 25 kb Date: 11/19/2003 NONPUBLISHED MITCHELL V. JEFFERSON COUNTY, KY. GOVERNMENT EMPLOYMENT Fiscal court had approved investigator's findings and had recommended termination of public education specialist. However, MSPB recommended 90-day suspension instead, and judge executive terminated public education specialists employment, rejecting MSPB recommendation.  However,  Supreme Court has recently made clear that ultimate authority for termination of county employees resides in the Judge-Executive, not the Merit Board. Friedman v. Armstrong, Ky., 59 S.W.3d 875, 878 (2001). The County Judge-Executive has the final say under KRS 67.710(7), and is not required to defer to the Merit Board's recommendations. 2002-CA-001540.pdf Size: 39 kb Date: 11/19/2003 NONPUBLISHED DAY V. DAY DIVORCE,  IMPUTING INCOME, PRIVATE TUITION  Important points from this case: 1. Trial Court can impute income to a parent for the purpose of calculating child support pursuant to KRS 403.212(d). 2.  KRS 403.212(2)(c) should be followed to determine if a spouse takes a loss on a self-employment or operation of a business, so that same can then be determined if it should be included in income for child support purposes. 3.  There is no abuse of discretion when trial court does not provide for one parent to specifically pay for a portion of the child's private school tuition.  KRS 403.211(3)(b) allows for a court to deviate from the child support guidelines when the child has extraordinary educational needs.  However, when there is no proof in the record that the public schools are inadequate for educational purposes and there is no proof that the child suffers a handicap that would make public schools unsuitable, the trial court does not abuse its discretion by denying tuition for a private school education.  Miller v. Miller, Ky., 459 S.W.2d 81 (1970). 4.  Where husband starts the marriage with 36 cows and 2 bulls and has an ongoing calving operation, and there is turnover in the livestock during the marriage, but there is never any less than 36 cows, it was proper for the trial court to award husband 36 cows and 2 bulls in the property settlement.  Allen v. Allen, Ky.App., 584 S.W.2d 599 (1979). 2002-CA-001543.pdf Size: 25 kb Date: 11/19/2003 NONPUBLISHED LO V. LO DIVORCE, PROPERTY DISTRIBUTION OF BUSINESSES Court of Appeals affirms trial courts ruling on division of marital assets and debts where parties owned multiple businesses and residences. 2002-CA-001587.pdf Size: 28 kb Date: 11/19/2003 NONPUBLISHED DALTON V. COM. CRIMINAL  CA affirmed TC's order denying Defendant's pro se motion to withdraw his guilty plea.  Plea was voluntary under totality of the circumstances. 2002-CA-001590.pdf Size: 49 kb Date: 11/19/2003 NONPUBLISHED UNIVERSITY OF LOUISVILLE FOUNDATION V. CAPE PUBLICATIONS INC. OPEN RECORDS STATUTE UofL Foundation, Inc. appealed from Jefferson Cir. Ct. (Hon. J. Mershon) ruling that 1) Foundation IS a public agency under KY Open Records Act and 2) the Act's exemptions do not apply. CA affirmed that Foundation is a public agency, but reversed and remanded on the applicability of the exemptions, holding that applicability is issue of fact to be decided case-by-case. C-J Opinion Editor sought identities of donors and amounts given to the UofL "McConnell Center for Political Leadership" under the KY Open Records Act, KRS 61.870 et seq.  Foundation denied the request, claiming it was not a public agency and, therefore, not subject to the Act.  C-J sued and TC held that Foundation WAS a public agency; that exemption providing personal privacy protection  could not apply to corporations and private foundations; and that exemption preventing "unfair commercial advantage" to donor's competitors did not apply. "Public Agency":  Frankfort Publishing Co., Inc. v. Kentucky State University Foundation, Inc., Ky., 834 S.W.2d 681 (1992) litigated the same issue with regard to Kentucky State University Foundation, holding that KSU Foundation WAS a public agency under the KY Open Records Act. There, the Supreme Court held that to rule otherwise would be "clearly inconsistent with the natural and harmonious reading of KRS 61.870 considering the overall purpose of the ... law."  Here, CA held that, even though the definition of public agency under the KY Open Records Act had changed since Frankfort Publishing, the change would have no effect on the analysis.  (UofL "controls" the UofL Foundation and the entities "act as one and the same" in soliciting contributions). Exemptions: Foundation sought relief from KY Open Records Act under 2 exemptions: 1) nondisclosure of records containing "information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy;" and 2) nondisclosure of confidentially provided records which, if openly disclosed, would permit an "unfair commercial advantage to competitors." CA remanded on both exemptions, holding that applicability of these exemptions should be determined case-by-case. (Without citing authority, the CA held that "there may be an expectation of personal privacy for some corporations or private foundations" (emphasis in original)). 2002-CA-001682.pdf Size: 33 kb Date: 11/19/2003 NONPUBLISHED DEARMOND V. COM. CRIMINAL, DUI, JURY INSTRUCTIONS  CA affirmed in part and reversed in part Defendant's convictions for DUI 4th, Second Offense Operating a Vehicle on a DUI Suspended License, and Receiving Stolen Property over $300.  Because the instruction on the fourth offense DUI charge improperly included an alternative theory completely unsupported by the evidence (that appellant was driving under the influence of a substance other than alcohol), CA vacated the conviction on that offense.  Relying upon Burnett v. Commonwealth, Ky., 31 S.W.3d 878 (2000), CA found that such an instruction violates Section 7 of the Kentucky Constitution which guarantees a criminal defendant the right to a unanimous verdict.  Finally, the Defendant  was not entitled to a directed verdict given sufficient evidence to infer operation of vehicle. 2002-CA-001690.pdf Size: 27 kb Date: 11/19/2003 NONPUBLISHED TIBBS V. TIBBS DIVORCE,  PRIMARY RESIDENTIAL CUSTODIAN Marriage dissolves and father is awarded primary residential custodian of 2 children.  Mother appeals same. Court of Appeals affirmed trial court's designation of father as primary residential custodian.  Same was done in conformity with KRS 403.270 and McFarland v. McFarland, 804 S.W.2d 17(1991). Father was proper because he kept the residential home where the children grew up and was keeping them in the same school district (mother wanted to transfer them). 2002-CA-001729.pdf Size: 40 kb Date: 11/19/2003 PUBLISHED FUARTADO V. COM. CRIMINAL - Immigration - Ineffective Assistance CA affirmed in part and vacated in part Jefferson Circuit Judge Ann Shake's order denying Defendant's motion to vacate guilty plea.  Two issues were presented for review:  (1) Is an immigrant Defendant's guilty plea knowingly, intelligently, and voluntarily entered when he is not informed that said conviction could trigger deportation? and (2) Can trial counsel's failure to inform immigrant Defendant of deportation consequences amount to ineffective assistance of counsel?   TC did not err by accepting Fuartado’s guilty plea without first advising him of the possible deportation consequences. The possibility that Fuartado would be deported by the INS, a federal agency, was a collateral consequence beyond the control of the trial court.  Accordingly, Fuartado’s claim that his plea was not knowingly, intelligently, and voluntarily entered is without merit.   Next, Fuartado claimed that he received ineffective assistance of counsel because his attorney failed to inform him of the likelihood that he would be deported if he pleaded guilty to trafficking in marijuana. Specifically, he argued that under certain circumstances, the possibility that a defendant will be deported upon pleading guilty presents a situation that must be factored into a defense attorney’s "general duty to investigate and be prepared."   This appears to be an issue of first impression in Kentucky. We conclude that the proper standard to apply is a case-by-case approach. This approach was explained by the Supreme Court of Colorado in People v. Pozo, 746 P.2d 523, 529 (Colo. 1987):  "In view of these factors, we conclude that the potential deportation consequences of guilty pleas in criminal proceedings brought against alien defendants are material to critical phases of such proceedings. The determination of whether the failure to investigate those consequences constitutes ineffective assistance of counsel turns to a significant degree upon whether the attorney had sufficient information to form a reasonable belief that the client was in fact an alien.  When defense counsel in a criminal case is aware that his client is an alien, he may reasonably be required to investigate relevant immigration law. This duty stems not from a duty to advise specifically of deportation consequences, but rather from the more fundamental principle that attorneys must inform themselves of material legal principles that may significantly impact the particular circumstances of their clients. In cases involving alien criminal defendants, for example, thorough knowledge of fundamental principles of deportation law may have significant impact on a client's decisions concerning plea negotiations and defense strategies.  Therefore, CA held that if, under the particular facts of the case, a trial court finds that an objectively reasonable attorney would have advised the client of possible deportation consequences because of facts known to counsel at the time, or facts that should have been known to counsel through a reasonable investigation, but counsel nonetheless failed to so advise the defendant, a claim for ineffective assistance of counsel is possible.  In this case, the trial court relied upon those cases which hold as a matter of law that a defense attorney’s failure to advise a defendant of possible immigration consequences cannot constitute ineffective assistance of counsel and denied Fuartado’s RCr 11.42 claim. Therefore, because the trial court made no factual findings with regard to the reasonableness of Fuartado’s counsel’s conduct, it is necessary to vacate the trial court’s order and to remand this matter for further fact-finding. Note:  This is a significant and thoughtful opinion by the CA.  Instead of instituting a blanket prohibition against RCr 11.42 motions in these situations, the CA mandated a fact specific analysis of the circumstances surrounding the representation.  The impact of this decision will surely be felt in the courts given the new removal policy of the BCIS (formerly INS) following September 11th, which is to remove if supported by any grounds. 2002-CA-001742.pdf Size: 20 kb Date: 11/19/2003 PREVIOUSLY NONPUBLISHED ON 10/3/2003 but ORDERED PUBLISHED on 11/17/2003 PHOENIX HEALTHCARE OF KENTUCKY LLC V. KENTUCKY FARM BUREAU MUT. INS. CO. NO-FAULT, PIP, EXCLUSIVE REMEDY FOR PAYMENTS TO PROVIDERS KRS 304.39-210 and 220 are the exclusive remedy of a health care provider against a reparations obligor for late or non-payment of PIP or reparation benefits.  The delay for nonpayment of PIP is not actionable under KRS 304.12-230 of the Unfair Claims Settlement Practices Act and that KRS 446.070 does not entitle the health care provider to damages thereunder, including punitive damages. "It is well settled that "[w]here the statute both declares the unlawful act and specifies the civil remedy available to the aggrieved party, the aggrieved party is limited to the remedy provided by the statute ." Grzyb v. Evans, Ky., 700 S.W.2d 399, 401 (1985)." COMMENT:  This was a nonpublished decision dated 10/3/2003 which was ORDERED PUBLISHED on Nov. 17, 2003. 2002-CA-001830.pdf Size: 16 kb Date: 11/19/2003 NONPUBLISHED WOODYARD V. COM. CRIMINAL  CA vacated judgment following Defendant's RCr 8.09 conditional plea of guilty to Criminal Attempt to Manufacture Methamphetamine.  Defendant challenged the constitutionality of KRS 218A.1432, arguing that the statute is vague and overbroad.  CA vacated for consideration of whether plea was consistent with  Kotila v. Commonwealth, Ky., 114 S.W.3d 226, 237 (2003), which holds KRS 218A.1432 passes constitutional muster, but that possession of all of the chemicals or all of the equipment to manufacture the prohibited substance is necessary to support a conviction. 2002-CA-002532.pdf Size: 19 kb Date: 11/19/2003 NONPUBLISHED LAZAR V. BATES DISMISSAL FOR LACK OF PROSECUTION (CR 77.02(2)  Plaintiff/appellant argued TC's 77.02(2) dismissal of 6-year-old property dispute was abuse of discretion.  CA affirmed, however, noting that plaintiff had faced 2 prior 77.02(2) notices and had done "just enough to get by" each time. "Whether [plaintiff] has shown cause ... is a discretionary call of the trial court." 2003-CA-000011.pdf Size: 21 kb Date: 11/19/2003 NONPUBLISHED CRAWFORD V. NATIONAL CITY BANK OF KENTUCKY APPEALS, NOTICE OF APPEAL (PRO SE APPELLANT) Pro se litigant is not excused for failure to perfect appeal within 30 days.  "Kentucky Rules of Civil Procedure require that "[t]he notice of appeal shall be filed within 30 days after the date of notation of service of the judgment or order under Rule 77.04(2)." CR 73.02(1)(a). Although we may sympathize with Crawford's troubles, including those with counsel, strict compliance with CR 73.02(1)(a) is mandatory. Thus, she was required to appeal the judgment within thirty days. Such a technicality in the law is a pitfall for those unfamiliar with the practice of law. Nonetheless, a "notice of appeal is a procedural device prescribed by the rules of the court by which a litigant may invoke the exercise of the inherent jurisdiction of the court as constitutionally delegated." Excel, 37 S.W.3d at 716 (quoting Johnson v. Smith, Ky., 885 S.W.2d 944, 949-50 (1994)). Accordingly, we are compelled to dismiss this appeal as our jurisdiction to review the merits of it has not been properly invoked." 2003-CA-000024.pdf Size: 22 kb Date: 11/19/2003 NONPUBLISHED SEARS V. FRYMAN (in the interest of English Lou Ann Walters) FAMILY LAW, SURNAME AND BEST INTEREST OF CHILD Child was born to single mother and mom gave the child her last name of "Walters".  Sixteen months later paternity testing was done which showed the father was Mark Sears.  Three years later and Agreed Judgment of Paternity and Support was entered on Dec. 27, 2000.  Mark requested joint custody and that the child's surname be changed to "Sears". Custody was denied, but the name change was granted. The circuit court (acting in its appellate capacity) affirmed the denial of joint custody and reversed the ruling on changing the child's surname in an order entered on Dec. 3, 2002, holding that the award of sole custody effectively resolved the issue of the child's surname pursuant to KRS 213.046(10)(a), which allows the parent with custody to make the determination where the parents cannot agree. The father appealed the name change issue only to the Court of Appeals. Father argued that KRS 213.046(10)(c) supported his position that the child's surname should be changed.  The Court of Appeals held that KRS 213.046 does apply, but as stated in Hazel v. Wells, Ky.App., 918 S.W.2d 742 (1996), found that the only factor relevant to the determination of what surname a child should bear is the best interest of the child. Because the circuit court held as a matter of law that KRS 213.046 (10)(a) applied and that the parent with custody could pick the name, rather than applying the best interest of the child standard, the case was remanded to the circuit to determine this issue in the context of the "best interest of the child". 003-CA-000057.pdf Size: 41 kb Date: 11/19/2003 NONPUBLISHED GIBSON V. PLAID CLOTHING WORKERS COMP CA affirmed Board's decision concluding no work-related claim for cervical, thoracic, lumbar strain with myofascitis from operating clothing press after concluding that the Board had not committed an error in assessing the evidence so flagrant as to cause gross injustice.  The fact-finder, rather than the reviewing court, has the sole discretion to determine the quality, character, and substance of evidence, and the fact-finder may reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same adversary party's total proof.  "Although a party may note evidence that would have supported a conclusion that is contrary to the ALJ's decision, such evidence is not an adequate basis for reversal on appeal."  Burton v. Foster Wheeler Corp., Ky., 72 S.W.3d 925, 929 (2002) 2003-CA-000189.pdf Size: 36 kb Date: 11/19/2003 NONPUBLISHED ENGLE FUNERAL HOME INC. V. STERLING ESTATE WILLS AND ESTATES  Funeral home contracted with decedent's son on date of death.  Although son was appointed personal representative, he was later removed.  More than six months after appointment, funeral home filed a claim.  The Circuit Court held that the claim was barred by the six-month time limitation of KRS 396.011.  Funeral home appealed and argued that it was not a claim that could have been brought during decedent's lifetime and therefore was subject to the two-year limitations period of KRS 396.205.  Court of Appeals agreed and remanded for a determination of whether that statute barred the claim.  Although unpublished, this case serves as a nice primer on the law regarding claims against estates.

KENTUCKY FEDERAL DECISIONS 
Nov. 24-28, 2003

• Western District Court - Kentucky
  

  None

• Sixth Circuit Court of Appeals 
  
  

  Opinion DocketSheet Pub Date Short Title/District 03a0416p.06 02-6078 2003/11/25  Highlands Wellmont v. John Deere Health     Eastern District of Tennessee at Greeneville 03a0417p.06 02-5505 2003/11/25  Highland Capital Inc v. Franklin Natl Bank     Middle District of Tennessee at Nashville 03a0418p.06 01-3016 2003/11/26  Ly v. Hansen     Northern District of Ohio at Cleveland

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

None this week - sorry.

• Disclaimer at www.LouisvilleLaw.com/disclaimer.htm
  
• Disclaimer from AOC Site Where Opinions are listed (www.KyCourts.net)
  

  Unpublished Opinions

  This web site [www.KyCourts.net] 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 [www.KyCourts.net], none were final."

  
  

• The Content contained on the Web site has been prepared as a service to its readers and the Internet community and is not intended to constitute legal advice. We have used reasonable efforts in collecting, preparing and providing quality information and material, but do not warrant or guarantee the accuracy, completeness, adequacy or currency of the information contained on or linked to the Web site on in this e-mail. Users of information from the Web site or e-mail or links do so at their own risk.
  
• Thank you, LouisvilleLawWire

• Click here for list maintenance (like you want to receive these).  
  
• Forward to some folks in your mailbox.