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I have also made a special page of many litigation links I have found useful.  It's not complete and does not have a lot of the links I have in my 'favorites' but it is a start.  If you have some suggestions, you think you would like to add, then reply email me with the link and why.

• Litigator's Lunchbox of Links

PUBLISHED

The court upheld the Board’s decision to sanction the appellants for permitting unlicensed individuals to perform embalming services in violation of KRS1 316.030(1) finding that the Board’s decision was not arbitrary and that its findings of fact were supported by substantial evidence.

It is a settled principle that the fact-finder in an administrative proceeding (in this case, the Board) rather than the reviewing court has the sole discretion “to determine the quality, character and substance of the evidence[.]” Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985). The fact-finder “has the sole authority to judge the weight, credibility and inferences to be drawn from the record.” Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329, 331 (Ky. 1997).

Facts: Biological parents rented a house from Appellants and, finding themselves unable to care for their children, informally placed the children with Appellants on a non-permanent basis. Appellants were not related to the children in any way. Although the parents visited the children regularly, Appellants were the primary caretakers and provided for essentially all of the children's needs. The maternal and paternal grandparents were unaware of this arrangement.  When the paternal grandmother sued for visitation rights, the mother attempted to retrieve the children from Appellants home.  Appellants refused custody but stated they would return the children when the mother could provide a stable environment for the children.  Mom, after meeting with her parents agreed her parents could seek temporary custody of the children.  Her parents then sought temporary custody.   In their motion, the grandparents' argued Appellants should be denied custody because they were unrelated to the children.  The TC found the parents had failed to provide for the welfare of their children and had voluntarily delegated custody and control of their children to Appellants for almost a year and a half. Thus, Appellants were the de facto custodians. However, TC then awarded custody to the maternal grandparents on a best interest basis.

CA held that KRS 403.270(2) plainly applies to de facto guardians, not just custody between parents and since substantial evidence supported the TC's findings that Appellants were the de facto custodians, it was required to give them equal consideration under the statute.  

PUBLISHED

This decision was rendered on 12/3/2004, and is now ordered published as of 2/4/2005.  See earlier LawWire for more detailed digest of decision. Dec. 3, 2004 - Ct. App. 2004/55

As a matter of law, there can be no claim for bad faith where there is no contractual obligation for coverage, even if the insurer provides a defense and satisfies judgment within putative policy's limits.

LouisvilleLaw.Commentary.   

As stated earlier, this was an odd decision on the facts, but what we did not say then that we will say now is that this case shows how the defense ethics and the tri-partite relationship are supposed to work.  Each of the defense counsel get a nice pat on the head for a job well done, even though the adjuster and the insurer may have been less than alert about events.   Basically, the lawsuit started against the driver in an accident, and then the employer was brought in later.  Kentucky National insured the employer and had a coverage defense that all now agree was valid but unrecognized until after the trial.  The original defense counsel in the liability trial had the ethical obligation to the insured and did not advise their adjuster of any policy defenses.  Their ethical obligation was to the insured even if there was no coverage.  However, by the time of the second trial (the bad faith trial), the gloves were off, and the insurance company was the client and the defense attorney in representing the company could/should assert the coverage defense.  

Note that the plaintiff got the benefit of being indemnified from  non-existent coverage, the defendant got some free coverage and a free defense, and the only loser was the insurer who ponied up to the bar and paid what they did not have to pay.

A good decision to publish even though you have to read between the lines for the ethical issues to make sense of what the casual reader might think was a comedy of errors at the first trial.

For inquiring minds, this was originally not published but a motion was filed to give it publish and permission to cite status.

NOT PUBLISHED

However, the Duncans failed to separately appeal that order and because the Duncans failed to name all necessary parties, their appeal is dismissed.

The COA did note that an order confirming or refusing to confirm a judicial sale is also a final and conclusive judgment.  Moreover, the order confirming the report of sale is distinct from the order of sale and it must be separately appealed. Furthermore, the relation-forward rule does not save the Duncans’ appeal. If a party prematurely files a notice of appeal, the notice will relate forward to entry of the final judgment.  In this case, the Duncans’ notice of appeal was not premature. They timely appealed from the trial court’s judgment and order of sale. But the Duncans do not contest any of the matters adjudicated in that judgment.

Note:  For inquiring minds, the relation-forward rule can be found in Johnson v. Smith, 885 S.W.2d 944, 949 (Ky., 1994).

Held trial court's dismissal did not give notice to the plaintiffs that the case would be dismissed for lack of prosecution.  CR 77.02 is mandatory, and the trial court's dismissal was improper.

CR 77.02(2) provides that "At least once each year trial courts shall review all pending actions on their dockets. Notice shall be given to each attorney of record of every case in which no pretrial step has been taken within the last year, that the case will be dismissed in thirty days for want of prosecution except for good cause shown. The court shall enter  an order dismissing without prejudice each case in which no answer or an insufficient answer to the notice is made."

LouisvilleLaw.Comment.   

I am reminded of the opening line from the Cheers tune (with a few mods)-

filing a suit in the world today takes everything you've got!
finding the address of your defendant would surely help a lot!
wouldn't you like to get a way..to where everybody knows their name?

all those times when you try to get service and noone answers the mail
always feeling you're almost there but the insurer's got you by the tail..
wouldn't you like to get a way . . . to where just somebody knows their name (and address)?

Trying to locate a defendant in today's world is getting more difficult all of the time, especially when the name and address may be incorrect or poorly transcribed on the police report (not to mention no social security number either!).   Suit may then be filed a year or so after the accident after attempts to settle have been to no avail.  

This presents an unusual dilemma - the insurer has been negotiating but when suit if filed, it is filed against the tortfeasor and not the insurer.  Until service is had, then the insurer is not a party.

However, the plaintiff above did file a bad faith claim against Allstate who resisted disclosure of the defendant's current address and social security number.  Even "curiouser" is the following footnote:

"We [COA] note that an attorney for Smallwood appeared at the hearing on September 11, 2003, and received a copy of the circuit court’s order as well as copies of brief filed by the Sains and Allstate. The parties do not address the attorney’s appearance, and we are puzzled why the court would dismiss the case under Ky. R. Civ. P. (CR) 77.02, with Smallwood’s counsel being present."  

Now, who was that mere interloper?  I have spoken to one of the attorneys in this case and this interloper appeared solely to monitor and acknowledged he was hired to defend when service is eventually made on the defendant.

Although the COA also did not explain Allstate's role in this matter, I have been told it was a bad faith claim.  

Over the years, I have observed some insurers employ this practice which places a lawyer assigned to defend an insured in a ticklish situation.  When suit is filed, the liability carrier gets a courtesy copy of the complaint, and assigns defense counsel.  Notifying the liability insurer minimizes a denial of coverage for the insured's failure to cooperate.  However, suing the defendant's insurer for bad faith pretty much assured the liability carrier would know about the suit and would presumably have been done to smoke out the address of the defendant.  Of course, this raises the interesting issue should a liability insurer refuse or adjust negotiating a case based upon a perceived inability to locate and/or serve the insured and therefore obtain a judgment (but let us not go there).  Then the assigned defense counsel who has been retained and selected by the insurer stays out of the litigation rather than move to dismiss under CR 12.02 for failure to serve, etc.  

Disclosing the insured, be his or her address or social security number, should be required and obligatory on the liability insurer even without suit (as the identity of a client is not privileged and an insurer should not participate in secreting its insured from identification, but then we will reserve that discussion for another day too).  More importantly, issues pertaining to the inability to locate or serve the insurer should NOT be a valid component in evaluating the claim.  Remember, when the controversy developed over the death of the insured during negotiations and the duties of the adjuster to advise the claimant's lawyer caused an uproar and a reconsideration of the appellate decision in  Gailor v. Alsabi?  Incidentally another Allstate insured's case.  

Mike Stevens, Editor

In this pro se appeal, Dunaway contends the circuit court abused its 
discretion in denying his CR 60.02 motion claiming the circuit court committed error by holding a confession lacked credibility and by determining that such confession would not have changed the result of the jury’s determination of appellant’s guilt. 

COA disagreed holding it is well established that the circuit court is vested with broad discretion in determining the validity of a CR 60.02 motion and that such discretion will not be disturbed on appeal except for a clear abuse thereof. Brown v. Commonwealth, 932 S.W.2d 359 (Ky. 1996).   

The Supreme Court has held that “relief should not be granted, pursuant to Rule 60.02(f), unless the new evidence, if presented originally, would have, with reasonable certainty, changed the result.” 

The requirements of RCr 8.30 are implicated in cases where codefendants are represented by attorneys from the same public defenders office. Kirkland v. Commonwealth, 53 S.W.3d 71 (Ky. 2001).  Here, the requirements of the rule were complied with as the codefendants were informed by the trial court of the potential for a conflict of interest and each signed a waiver.

 Facts:  Marijuana had been shipped via UPS but was undeliverable as a result of a fake address.  When UPS opened the shipment, it found  over 22 pounds of marijuana.  UPS turned the package over to the DEA.  An individual later contacted UPS and identified himself as the recipient of the package using the tracking number.  LPD then contacted the recipient and a LPD detective, posing as a UPS delivery person, delivered the package to an apartment.  On delivery the detective called for a Spanish language interpreter.  When the interpreter arrived on the scene, Miranda rights were administered and the Appellant consented to a search of the apartment.  Appellant was subsequently arrested, released on bail, fled and subsequently rearrested, tried and convicted

Appeal from summary denial of movant's RCr 11.42 motion alleging ineffective assistance of counsel.  Appellant moved the TC for an extension of time to which the TC did not respond.  However, because the TC ruled on the merits of the motion the CA held the TC granted Appellant's motion for extension of time. 

Appellant's substantive basis for the motion was that trial counsel did not adequately inform Appellant of the intoxication defense when Appellant pled guilty to kidnapping, robbery I, assault I and possesion of a handgun by a convicted felon.  CA affirmed finding the record reflected that Appellant had informed counsel of the facts surrounding the offense and that he was not cooerced into the plea.  Further, the CA held Appellant had offered no specific facts to support his allegations he was intoxicated when he committed the offenses charged.  There being no material facts which could not be resolved by the record, no hearing on the motion was required. 

These are pro se appeals from orders dismissing the due process and open records request claims. COA affirmed the circuit court which found that the imposition of a warning and reprimand to inmate Wright by the Kentucky Department of Corrections (Corrections) merited no relief, and that Wright’s claim was frivolous and was made only to harass appellees. We affirm.

This is a criminal appeal whereby Clark claims error in the trial court’s refusal to introduce the videotapes of the statements made by the minor victims to a social worker. 

The defendant asserted that these videotapes would reveal the suggestive nature of the questioning by the social worker, that the statements given on the videotape were contrary to the statements given by the children at trial and were therefore properly admissible as prior inconsistent statements pursuant to CR 43.08, and that the tapes reveal “coaching” of the children in order to influence their statements.

However, at trial the children were not asked questions regarding the content of the earlier statements or facts surrounding the prior statements.

Cross-examination regarding such statements is required prior to introduction of the inconsistent statements. Norton v. Commonwealth, 471 S.W.2d 302, 305 (Ky. 1971). This is so even where the witness is of tender years. Noel v. Commonwealth, 76 S.W.3d 923, 925 (Ky. 2002). Failure to lay a foundation, as required by KRE 613, requires exclusion of the prior statements.  A trial court ruling on the admissibility of evidence will only be reversed on appeal where an abuse of discretion is shown. Burgess v. Taylor, 44 S.W.3d 806, 815 (Ky.App. 2001). The trial court’s exclusion of the earlier videotapes was proper.

MILLER, SENIOR JUDGE, DISSENTING: "I dissent. In my view, in the interest of justice, the victims’ video-taped statements to the social worker should have been admitted. It was prejudicial error not to do so. I would reverse and remand for re-trial."

CA affirms TC's holding that Appellant's actions constituted legal abandonment of a child and which awarded custody to maternal grandparents.  Appellant, an active service member had been effectively absent from his son's life for approximately seven years, had not attempted to call, write or visit with regularity. Appellant's claims his military service did not enable him to maintain contact were found to be inadequate in light of the fact that Appellant was only out of the country a total of eight months during the child's life.  Further, Appellant had only seen the child a total of three times.  Thus, even though Appellant had provided minimal financial support, this was not enough to merit awarding custody to him and was not in the best interests of the child.

A trial court’s findings of fact may be set aside only if clearly erroneous, with the dispositive question being “whether or not those findings are supported by substantial evidence.”

 
The use of the Hensleys property was neither hostile nor under a claim of right is well supported by the evidence. Generally a garden and lawn maintenance are considered to be seasonal uses and insufficient to establish adverse possession. Kentucky Women’s Christian Temperance Union v. Thomas, 412 S.W.2d 869 (Ky. 1967).