CA affirms dismissal of WKU and WKU employees as governmentally immune and reverses dismissal of WKU Student Life Foundation (SLF) and remands this wrongful death action.

This civil case stems from the infamous WKU assault, rape, and murder of Katie Autry involving Stephen Soules and Lucas Goodrum. Katie lived in a dorm owned by SLF and managed by WKU when Soules and Goodrum (who were not WKU students) allegedly entered her dorm, and assaulted and raped her before setting her on fire. She subsequently died. SLF, a non-profit KY corporation, was formed to acquire, finance, and own dorms at WKU and to act as a vehicle for WKU dorm renovation. WKU is responsible for all dorm operations and WKU, not SLF, enters housing agreements with students.

CA holds that WKU's function in this case was governmental under KY case law and therefore immune. As to SLF, however, its immunity arguments are premised on the argument that WKU, an immune entity, actually had "possession," and therefore a duty to Katie, under the law. As reasonable people might differ as to whether SLF had "possession," the issue goes to the jury.  Further, it is irrelevant whether WKU was SLF's agent or independent contractor in an underlying a contract in which one delegates a duty in respect to safety of persons or criminal acts of third persons.

In the course of an examination of Consolidated Mortgage, Inc., the Department of Financial Institutions (“DFI”) subpoenaed bank records from Central Bank. A comparison of check copies provided by the bank compared to those furnished by Consolidated (the Appellant) indicated that they had re-dated the checks in an effort to conceal that the funds had been used not to pay off liens as intended by the lender. Rather, the DFI concluded, Consolidated’s officers had used the funds for either operational or personal expenses. The Commissioner revoked Consolidated’s mortgage broker license and imposed a $15,000 fine in an order that was subsequently upheld by Franklin Circuit Court. This appeal followed.

On appeal, Consolidated argued that the DFI’s exercise of subpoena power over Central Bank’s records relating to accounts held by the Appellant, without providing notice to the Appellant denied them their due process rights. The COA, echoing US v. Miller, 425 US 435, held “the depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the government.” Since the Appellant had no legitimate privacy interest in the bank records, the COA reasoned, it had not been deprived of due process when it was not noticed on the investigative subpoena.

CA dismisses this action seeking to terminate execution proceedings and quash garnishment proceedings.

Attorney-in-fact filed complaint for her grandmother alleging fiduciary misconduct by grandson and his wife. The case settled, but then apparently having seen the proposed trial order and judgment, Attorney-in-fact moved to set aside the settlement and set for trial. Counsel for grandson and wife filed a motion to withdraw, but continued to represent his clients in opposing Attorney-in-fact's motions. New Counsel finally substituted in and appealed a judgment entered in the interim. During the pendency of the appeal, Attorney-in-fact initiated garnishment proceedings against grandson and wife. Numerous proceedings continued and another partial settlement (releasing grandson, but not wife) was reached.

CA holds that grandson and wife are precluded from raising the release and satisfaction of the wife because this defense was denied and not adequately supported by the record below. They had filed a motion to dismiss the appeal and revive this defense below, but this motion was denied. Grandson and wife should have appealed from that motion's denial.

BRIGGS V. COMMONWEALTH (not published)                                             Criminal -- Post-Conviction Relief; CR 60.02

CA affirmed the trial court's denial of Briggs' CR 60.02 motion. Briggs pleaded guilty to felony DUI, traffic offenses, and to being a persistent felony offender (PFO). He was given a 14-year sentence suspended for 5 years on the condition of supervised probation. Eventually, he violated the terms of his probation. After a revocation hearing, the trial court imposed the 14-year sentence. He then filed a 60.02 motion alleging that his sentence was improper pursuant to the terms of his plea, that he was improperly subjected to double enhancement, and that he was wrongfully denied the appointment of counsel. CA held that the 14-year sentence was not in violation of the plea agreement. It further noted that Briggs was appointed counsel through the Department of Public Advocacy but that the department declined the appointment after concluding that "the proceeding was not one that a reasonable person with adequate means would be willing to bring at his own expense." And finally, CA noted that Briggs' argument regarding improper enhancement of the DUI offense was invalid because he waived it by accepting his plea.

CARVER V. COMMONWEALTH (not published)                                             Criminal -- Post-Conviction Relief; CR 60.02

CA affirmed the trial court's denial of Carver's CR 60.02 motion. Following his jury trial in 1989, Carver was convicted of Receiving Stolen Property over $100 and of being a Persistent Felony Offender. In 1994, he filed a pro se motion for relief under CR 60.02 which the trial court denied. He then filed the present 60.02 motion alleging that his PFO conviction was improper. Because 60.02 motions are not a substitute for issues that could or should have been raised on direct appeal, CA held that the trial court properly denied Carver's motion. McQueen v. Commonwealth, 948 S.W.2d 415 (Ky. 1997). It also found that Carver's 60.02 motion was untimely.

CA affirmed trial court's denial of Hamilton's RCr 11.42 motion. Hamilton was indicted for Second-Degree Rape. Pursuant to a plea agreement, the Commonwealth amended the rape charge to two (2) counts of First-Degree Sexual Abuse. The net result was a reduction in penalty from 10 years to 6 years, the total sentence under the agreement. The trial judge questioned Hamilton about the plea and determined that it was knowing, intelligent, and voluntary. Before sentencing, Hamilton moved to withdraw his plea because his counsel allegedly failed to inform him that he was pleading guilty to an uncharged offense. He also argued that his sentence amounted to double jeopardy. CA found no evidence to support Hamilton's allegation of ineffectiveness, noting that the terms of the plea agreement were clear and that he understood them. It further held that, although the Rules of Criminal Procedure generally prohibit amending an indictment to charge an additional or different offense, defendants may waive application of such rules provided that their waiver is voluntary and that they receive a benefit. See Myers v. Commonwealth, 42 S.W.3d 594 (Ky. 2001) (defendants may waive statutory restrictions on sentencing in exchange for benefit of reduced sentence). CA rejected Hamilton's double jeopardy argument because jeopardy attaches only when a jury panel is seated and sworn. Crist v. Bretz, 437 U.S. 28 (1978).

D convicted of felony DUI. In Circuit Court, D filed "motion to dismiss" indictment claiming that two of his prior DUI convictions were faulty because the judge had not told him about penalty enhancements for future DUIs. Circuit Court dismissed motion to dismiss.

COA appeals treated motion to dismiss as 60.02 motion. COA criticized D strongly for not correctly styling motion to dismiss and citing appropriate authority. COA says proper procedure for attacking prior DUI convictions would have been on direct appeal. COA said even if arguments about prior DUI conviction had been properly presented, COA would not have given any relief. COA said that Boykin does not require trial court to advise D of every possible consequence of his plea of guilty to be a valid plea of guilty.

D was convicted of a felony theft and received 5 years probation. Probation was transferred from one county to another. D then picked up a new conviction while on probation. Circuit Court revoked D's 5 year period of probation based upon several technical violations (e.g. failure to report) and his new conviction.

D argued for dismissal of the revocation proceedings arguing procedural problems such as the fact that the probation office from his county of conviction signed an affidavit about his violations versus the probation officer that was supervising him in his county of residence. COA found no procedural problems. Additionally, COA noted that D's own admission at the revocation hearing regarding his new conviction while on probation was enough to get him revoked.

D charged with stealing 4 checks from his ex-girlfriend. D was acquitted of 3 checks, convicted of 1 check. D argued on appeal that trial court erred by allowing victim to testify that when the 4^th check was stolen, her home had been entered and her belongings strewn about. D argued that testimony was improper b/c D was not charged with burglary. Trial court did not allow KY to use word "burglary" nor to allow victim to testify she tried to have D indicted for burglary. Trial court said other testimony on this issue proper b/c such evidence was "inextricably intertwined" with evidence of crime charged. See, KRE 404(b)(2). COA affirmed trial court's evidentiary ruling and D's conviction.

D and her husband charged with the homicide death of their infant daughter. Co-D's trials were severed. D went to trial 1^st and was convicted. She claimed in a pro se 11.42 that her trial counsel was ineffective for a number of reasons ranging from poor trial strategy to being intoxicated during the trial. Trial court denied the 11.42 on its face without appointing counsel or conducting a hearing. COA reversed saying that the trial court erred in that there were material issues of fact that could not be conclusively proven or disproven from an examination of the trial record. Thus, D was entitled to counsel and an evidentiary hearing on her 11.42

Ex-husband next contended that TC erred by re-opening the judgment and modifying its terms summarily, thereby ignoring his request for a full evidentiary hearing.  CA found that the property settlement agreement made no pretense or direct representation that it constituted a full disclosure of the assets of either party, and no financial statements were attached to it; thus, the court could not rely on the parties’ sworn financial statements to assess the terms of their property settlement agreement. CA held that based on these insufficient facts, summary disposition of the motion was improper.  Vacated and remanded.

J.B.  AND  C.V.  V. COM
FAMILY LAW - CHILD CUSTODY (REMOVAL FROM HOME BY STATE)

CA stated that “the holding in Swiss v. Cabinet for Families and Children, 43 S.W.3d 796, 797 (Ky.App. 2001), is unequivocal: ‘foster parents . . . may not use the de facto custodian statutes to challenge the cabinet’s custody of the child where the child was placed with the foster parents by the cabinet.’”  CA expanded the Swiss holding so that foster parents cannot petition to be de facto custodians when a child is in the custody of the Cabinet regardless of the status of the biological parents’ rights vis-à-vis the child.

Mr. and Mrs. get married, and she 'hides' the marriage certificate to continue receiving social security payments, but they do not hide the fact they are married.  Certificate is never filed.  Mr. later dies and the son and step-mom now fight over the wrongful death claim.  COA held that the failure to file the marriage certificate does not void or invalidate an otherwise valid marriage.  She is a spouse.

SPRIGGS    V.   SPRIGGS
FAMILY LAW

Ex-wife appealed from a post-decree order of TC in an action for dissolution of marriage. In affirming the report of the DRC, TC overruled ex-wife’s exceptions. The DRC held a hearing on a motion by ex-husband, in which he sought to terminate his obligation to pay maintenance to ex-wife. The DRC recommended that ex-husband’s motion be granted and determined that the maintenance should end after a period of four more years.  Ex-wife argued that ex-husband failed to meet his burden of proving the elements necessary to terminate or to modify maintenance as required by KRS 403.250. 

The primary issue on appeal was whether the maintenance award was governed by KRS 403.200 or by KRS 403.250(1).  In making an award of maintenance at the outset, a court is governed by the criteria set forth at KRS 403.200.  Other than case law providing for the most specific modifications of KRS 403.200 directly, all other modifications to the initial maintenance award are automatically governed by KRS 403.250.  There is no provision of inherent modifiability implied or expressed by KRS 403.200. TC’s labelling of maintenance award as temporary does not affect the necessity for meeting the statutory criteria of modifiability of KRS 403.250.  KRS 403.250(1) does not permit a trial court to modify maintenance absent a proven change in the current circumstances which makes the award unconscionable. The statute allows a court to modify maintenance in its discretion only upon proof of a “substantial and continuing” change in circumstances –- an actual and present change rather than an anticipated, projected change at a future date.  Thus, CA vacated and remanded TC’s order, adopting DRC’s forward-looking recommendation.

When spouses remarry each other, the property awarded each in the first dissolution action remains that person’s separate and distinct property. And the re-marriage does not annul a separation agreement incorporated into the earlier divorce decree.

And Kentucky does not recognize common-law marriage and no contractual rights or obligations arise from mere cohabitation.

There is no presumption that the conveyance to Douglas was a gift and the burden was upon him at the trial level to prove the existence of a valid gift by clear and convincing evidence.

“[W]here property is conveyed as a gift, the transaction is by its very nature unilateral, and the grantees intent or conduct (other than acceptance) plays no part in fixing the rights of the parties.”

WILLIAMS    V.   WILLIAMS
FAMILY LAW - MARITAL PROPERTY (Valuation of Law Practice)

When one party to a dissolution owns a pension subject to statutory exemptions protecting it from division, KRS 403.190(4) places on the TC the complex task of valuing the pensions in order to establish the level of the nonmarital exemption with the excess to be treated as marital property.  TC abused its discretion when it rejected all of the valuation evidence offered by the parties without itself suggesting an acceptable valuation method or requiring the parties to submit evidence to assist the court, and instead effectively removed the pensions from the scales in determining an equitable division of all of the property before the court.  Reversed and remanded.

CA affirms in part, vacates in part, and remands this medmal case after agreeing with appellant that TC should have directed verdict in her favor of the issue of the physician's negligence. (Jefferson Cir. Ct., Hon. James M. Shake, Judge, presiding).

Decedent underwent hip replacement surgery performed by Dr. Witten. At the conclusion of the surgery while decedent was still anesthetized, Dr. Witten slipped in water in the OR while holding decedent's leg, jerking the leg to severely as to dislocate the hip that had just been replaced. The hip was immediately restored using a closed reduction procedure. After decedent left the hospital, he experienced great pain as the hip had again become dislocated. A second surgery - an open reduction - was performed that day. Prior to decedent's release from that surgery the hip again dislocated. A 3d surgery was performed using a larger prosthesis and the hip stabilized. Approximately 3 months later, decedent died after taking an unknown number of methadone pills. The surviving spouse sought to link her husband's death to Dr. Witten's care, arguing that the treatment set in motion a series of disastrous events that culminated in his death. The jury returned a defense verdict.

On appeal, spouse argues she was entitled to directed verdict on the deviation from the standard of care in that Dr. Witten admitted slipping and that testimony indicated he used an improperly sized prosthesis hip. CA agrees that the doctor admitted slipping and jerking the leg, but disagrees that other testimony amounted to a further admission