Litigator's Lunchbox

We appreciated the input and added some of the links, to include local aerial photos, satellite photos from TerraServer, skid marks and other calculators, life expectancy tables.  Hope to add the actual table of the one found in the KRS Tables book (as soon as I find the PDF file someone sent to me a few months back), but we do have the life expectancy tables from the Comp regs and the IRS.

Got a link to add, the reply to this email with the link and a short description (which I can copy and paste into the appropriate location).

Remember the focus is on litigation - civil.  If we need a family law folio or a criminal law cornocopia, then, then the onus is on you to let us know.

As always, your support and pats on the head are what we live for.  Like the Irish say break their legs so you can spot your enemy.  For us, just pat a contributor on the head, so we can tell our friends by their bald spots.  As for bald spots, my son-in-law Mark Dodge had his locks shaved for the second straight year for St. Baldrick's day.

And thanks to Randall Gardner and Alex Talbot for sharing with you their suggested links.

• http://www.LouisvilleLaw.com/LitigatorsLunchBox.htm

Correction - The following decision was marked 'Nonpublished' in error by me, it was actually published by the Supremes.

In this case, the Court of Appeals upheld the Franklin Circuit Court's affirmation of a Public Service Commission order voiding a rate increase by the city of Russellville (the Appellant herein). The PSC had initially approved the increase on the rates Russellville charged other water districts. However, after these water districts filed suit, the PSC issued an order voiding the increase. The order found that Russellville failed to comply with KRS 96.355(1)(a), requiring the city to enact an ordinance before filing the rate change. The Circuit Court affirmed, and this appeal followed.

On appeal, Russellville argued that the "filed rate doctrine" precluded collateral attack on rates filed with a regulatory agency. The COA affirmed despite their belief that employees of the KPSC were primarily responsible for the confusion surrounding the sufficiency of Russellville's compliance with rate increase procedures. 

The COA held that the PSC should have notified Russellville that its original proposal was insufficient because it failed to include information setting forth the rates to be charged to the districts. The COA went on to acknowledge, "The PSC and not Russellville caused this regrettable situation in which either Russellville or the districts will suffer a substantial economic loss," but noted that Russellville's "failure to comply with its statutory and regulatory obligations cannot be ignored."

Buyer purchased the child care business owned and operated by the Seller. At the time of the transfer, the Seller's license was subject to an adverse proceeding filed by the Cabinet for Health Services. The buyer took possession and began operating the business. However, rather than transfer its license to the buyer, the seller chose to appeal the sanctions imposed by the CHS. Since temporarily shutting down the business in order to apply for a new license was commercially impracticable, the buyer notified the seller it was withdrawing from the agreement. The Seller filed suit against the buyer in Clark Circuit Court to collect monies they felt they were owed pursuant to the sale.

After a bench trial, the Circuit Court ruled that the parties contemplated that the sale of the business was contingent upon the transfer of the license and that the seller was thus excused from performance. The Court of Appeals affirmed, holding the seller's decision not to withdraw the administrative appeal relating to the CHS charges was " the sole cause of the failure of the parties' agreement."

Permissive child summer visitation with parent in Ohio for less than six months did not confer Ohio jurisdiction on juvenile, and circuit court erred in ignoring prior Ct. of Appeals ruling which was law of the case.

Cause of action dismissed for failure to revive within 1 year of date of death.  

Ferguson claims that in 1997 she was injured in a beauty parlor of which Parks was the proprietor when she suffered an adverse reaction to a hair coloring product applied by one of Parks’s employees. 

She filed her complaint against Parks in 1998. In May 2002, while the matter was still pending, Parks died. In September 2002, Ferguson moved the probate division of the Fayette District Court to appoint an administrator for Parks’s estate. 

In November, the district court appointed an administrator, but Ferguson did not seek to revive the circuit-court action against him. In September 2003, the attorney who had represented Parks filed a motion to dismiss Ferguson’s complaint because it had not been revived within the period allowed by law for that purpose. 


KRS 395.278 provides that the “application to revive an action” must be made “within one (1) year after the death of the deceased party.” Construed together, these provisions require that within a year following the death of a party a motion for substitution must be filed in the court where the abated action is pending, or the action terminates and must be dismissed.

If the court’s jurisdiction had lapsed, how was the court to act? The answer,  the COA answered by saying that a court always has jurisdiction to consider its jurisdiction and may do so on its own motion.

When it became clear that the statutory period had expired, the court was authorized to provide Ferguson with an opportunity to explain why her claim should not be dismissed, and, absent a sufficient explanation, to dismiss the claim.


COA agreed with the trial court that Ferguson’s explanation was not sufficient and that dismissal was therefore required.

Failure of pro se defendant to respond to requests for admission and motion for summary judgment proved fatal.  

JAMESON V. COMMONWEALTH (not published)
CRIMINAL -- Consecutive Sentencing; Pretrial Diversion

CA affirmed the trial court's order imposing consecutive sentences for Jameson totalling 15 years. Jameson had previously entered a diversion agreement with the Commonwealth for a 5-year term in connection with his guilty plea to Facilitation of the Manufacture of Methamphetamine. Shortly thereafter, he was indicted for, pleaded guilty to, and received a sentence of 10 years for Methamphetamine Manufacturing. The trial court interpreted 533.060 such that Jameson's sentences were required to run consecutively. On remand by SC and in light of Cosby v. Commonwealth, 147 S.W.3d 56 (Ky. 2004), CA interpreted KRS 533.060 to mean that defendants in pretrial diversion are "awaiting trial" and therefore are subject to consecutive sentences for new offenses.

LANG V. JOHN REES (not published)
CRIMINAL -- Parole; Sentencing

CA affirmed the trial court's dismissal of Lang's declaratory judgment action against Corrections Commissioner John Rees seeking various types of relief. The Court determined that Lang's requests for "work for time" credit, relief from consecutive sentences, and good-time credit were without merit. The most interesting portion of the opinion concerns Lang's argument that he was entitled to credit for time spent on parole pursuant to HB 269 of the 2003 General Assembly. The bill stated, in part, that parolees would be eligible for such credit under certain circumstances. CA noted that although the time-credit provision of HB 269 was never codified in the probation and parole statutes, it presumably became law during the budget period. In any event, Lang was not entitled to seek its benefit because he was returned as a parole violator before HB 269 took effect.

MITCHELL V. COMMONWEALTH (not published)
CRIMINAL -- Post-Conviction Relief; CR 60.02

CA affirmed the trial court's denial of Mitchell's CR 60.02 Motion to Vacate his convictions for First-Degree Robbery, First-Degree Assault, and Second-Degree Persistent Felony Offender. Mitchell entered a conditional guilty plea to these offenses in 1988 and received a life sentence. After a series of unsuccessful appeals and post-conviction motions over a 15-year period, he raised a CR 60.02(f) motion arguing that his plea was impermissible under Commonwealth v. Hillhaven, 687 S.W.2d 545 (Ky.App. 1985) (rejecting pleas of nolo contendere). CA held that Hillhaven did not apply because Mitchell entered a conditional guilty plea and that, in any event, Mitchell's motion was well beyond the 1-year time limit in the Civil Rules.

MULLINS V. COMMONWEALTH (not published)
CRIMINAL -- Post-Conviction Relief; CR 60.02

CA affirmed the trial court's denial of Mullins' CR 60.02 Motion to Vacate his convictions for Murder, Burglary, and Theft by Unlawful Taking over $300. In May 1996, Mullins pleaded guilty to all three offenses and received a sentence of life in prison without the possibility of parole for 25 years. Seven years later, he filed a CR 60.02 motion alleging a variety of grounds that were merely an attempt to relitigate issues previously addressed in his prior RCr 11.42 motion. CA held that the trial court did not abuse its discretion in denying the 60.02 motion.

PAYTON V. COMMONWEALTH (not published)
CRIMINAL -- Post-Conviction Relief; CR 60.02

CA affirmed the trial court's denial of Payton's CR 60.02 Motion to Vacate his conviction for Trafficking in a Controlled Substance. In 1990, Payton pleaded guilty to the Trafficking charge and received a sentence of 5 years probated for 5 years. In 1994, he filed an RCr 11.42 motion in which he argued that his indictment was fatally defective because the grand jury that returned it was illegally constituted. The trial court denied the 11.42 motion and the CA later affirmed. Because Payton raised the identical issue in support of his 60.02 motion, CA held that the trial court properly denied it. See Gross v. Commonwealth, 648 S.W.2d 853 (Ky. 1983) (defendants are precluded from relitigating in 60.02 motions any issues that were or could have been raised in 11.42 motions).

RHODES V. COMMONWEALTH (not published)
CRIMINAL -- Confessions; Suppression

CA affirmed Rhodes's convictions of Second-Degree Burglary and Persistent Felony Offender in the Second Degree. After waiving his Miranda rights, Rhodes confessed to burglarizing the victim's home. Before trial, he moved to suppress the confession on the basis of involuntariness. Specifically, he claimed that the detective who took his statement had promised that the case would be treated as a misdemeanor if Rhodes cooperated. During a suppression hearing, the detective acknowledged that he had promised only to speak to the County Attorney about treating the case as a misdemeanor. He further testified that he offered Rhodes no guarantee of a misdemeanor. Rhodes did not testify at the hearing. The trial court found the confession to be voluntary. Citing Walker v. Commonwealth, 561 S.W.2d 656 (Ky. 1977), CA affirmed the trial court's ruling and stated that there was no evidence to support a finding of involuntariness.

COA upholds conviction after trial for burglary, criminal mischief, and retaliating against a participant in the legal process. D was going through a divorce with victim. D largely convicted by circumstantial evidence

This appeal questioned whether a pat down search of a passenger in a car was lawful when the car was stopped for traffic violations only and there was no evidence that the passenger was armed or dangerous. COA adjudged that the pat down search was not justified. Car stopped because of no license plate and a broken taillight. Cop saw empty beer cans in car. Cop asked passenger to get out, and patted him down before conducting a consensual search of the car. Cop felt several unidentifiable objects in D's pants which turned out to be marijuana and a pipe.

Held that patdown was improper under Terry v. Ohio, 392 U.S. 1(1968). Even if stop is permissible under Terry, Terry only allows a patdown "[w]hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or others," the officer may conduct a pat down search "to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm." Id. Cop said reason she frisked D was because it was a high crime area. This is not allowed as there was no reason to believe D was armed and dangerous.

D convicted at 2^nd trial of 2^nd degree manslaughter. COA affirmed.

D gave birth alone in her dorm room. D contested at trial that she "gave birth" to stillborn fetus. KY claimed she gave birth to live child. D put the fetus/child in plastic bag and tied the bag up & left the room. When later examined at hospital because of loss blood, doctor realized she had recently given birth.

At trial, the parties offered dueling medical examiners on whether the child was alive when born. The medical examiner for KY, Dr. Mark LeVaughn, was subject of much argument. After mistrial of 1^st case and before second trial, Dr was fired from the medical examiner's office for alleged office management problems. Also, a criminal investigation was opened regarding his dismissal. Trial court would not allow defense to impeach Dr on this issue. COA held this proper because Dr alleged criminal actions had nothing to do with his ability as a medical examiner.

D also failed to preserve jury instruction issue for proper review on appeal.

COA upholds Circuit Court's denial of D's pro se 11.42 petition. COA held that denial was proper. D did not offer sufficient facts to require circuit court to hold an evidentiary hearing. Court held that D did not even attach an affidavit to petition as evidence of the ineffective assistance.

2004-CA-000198.doc
Judge: GUIDUGLI
AFFIRMING
Date: 2/18/2005
NOT PUBLISHED

DEVAN   V.  CALLAWAY
FAMILY LAW - PRE-NUPTIAL AGREEMENTS

Ex-husband appealed from TC’s decree incorporating the parties’ antenuptial property agreement, arguing that enforcement of the antenuptial agreement was erroneous and as such, that portion of the decree should be reversed.  Husband first argued that there was no consideration supporting the agreement.  CA affirmed TC’s finding that the parties’ exchange of mutual promises and obligations supplied consideration for the agreement.

Husband next argued that Wife’s infidelity prior to marriage and failure to cook, travel and keep house constituted fraud, misrepresentation and non-disclosure of material facts, but CA affirmed TC’s rejection of this argument on the basis that these were not express conditions precedent to the enforceability of the agreement.  

Husband last argued that the agreement was unconscionable when entered and/or when enforced, particularly in light of the fact that he became disabled subsequent to the TC’s order.  Affirming TC’s holding, CA held that the test of unconscionability of an antenuptial agreement takes place at the time enforcement is sought, which in this case was when the parties litigated the matter.  “To decide otherwise would foreclose finality on such an important issue and subject litigants to continuous, lengthy and expensive litigation.”  Finding that Husband’s financial status at the time of enforcement differed little from than at the time of enforcement, CA affirmed incorporation of the agreement into the the decree. 

2004-CA-000719.doc
Judge: TACKETT
AFFIRMING 
Date: 2/18/2005
NOT PUBLISHED

EDWARDS   V.  COX
FAMILY LAW - CUSTODY

Mom appealed from TC’s order modifying custody by granting her Dad sole custody of their five minor children. Mom argued that TC failed to give sufficient consideration to the children’s stated wish to live with their mother.

CA held that TC’s order indicates that it did, in fact, take into consideration the children’s wish to live with their mother.  However, though the children’s wishes are to be considered as factor relevant to the best interests of the child, the children’s wishes are not binding on the court.  Given the evidence that Mom had previously been without a home, chosen for the children to live with their father for almost two years, moved repeatedly, and failed to maintain regular contact with the children, CA held that TC appropriately found custody modification to be in their best interests.

2003-CA-002218.doc
Judge: SCHRODER
AFFIRMING 
Date: 2/18/2005
NOT PUBLISHED

GEORGE   V.   SEEGER-GEORGE
FAMILY LAW - ATTORNEYS FEES

Ex-husband appealed from a post-decree order which awarded ex-wife attorney fees incurred in defending ex-husband’s post-decree motion, arguing that the post-decree award of attorney fees was improper because:  ex-wife had already been awarded attorney fees in the parties’ settlement agreement that were intended to be in full satisfaction of all claims for attorney fees; the motion for attorney fees was prompted by ex-wife’s breach of the separation agreement; and the award was an abuse of discretion.  Ex-husband, an attorney, had filed a pro se motion to compel, claiming that ex-wife had breached the marital settlement agreement by removing numerous fixtures from the property.  The TC disagreed, finding that ex-wife had been entitled to take all but 2 of the fifteen items complained of, then ordered ex-husband to pay ex-wife’s attorney fees.

CA held that “from our reading of the settlement agreement, the attorney fees received by [ex-wife] in the agreement were for fees that she had incurred up to entry of the decree because those were all fees that could be anticipated at the time of the agreement.  It would be inequitable to restrict [ex-wife] from seeking attorney fees for unforeseeable post-decree litigation initiated by [ex-husband], especially given that he filed the motion pro se and thus did not incur attorney fees.”  Further, since the agreement was not specific as to what items ex-wife was allowed to take from the residence, ex-wife could not have breached the agreement when she took certain items.  Lastly, given the disparity in the parties’ incomes and the fact that ex-husband was the one who brought the post-decree motion from which he recovered very little (compared to what he sought and the costs of the motion), CA declined to say that TC abused its discretion in awarding post-decree attorney fees to ex-wife.

2004-CA-000324.doc
Judge: GUIDUGLI