The question presented is whether restrictive covenants, ostensibly created by a majority of lot owners in a subdivision, that purport to revive restrictions created by the original developer, are enforceable against all lot owners in the subdivision.   COA held they were not and reversed the judgment and vacated the injunction.

The Blacks do not dispute that their shed is in contravention of the terms of the 1988 restrictions. They challenge the inherent validity of those restrictions. They contend that the 1988 restrictions are void and unenforceable because they were executed by an unspecified majority of subdivision lot owners and were recorded well after the original restrictions had expired. They maintain that the restrictions do not therefore “affect” their property under the language of their deed.

Although the parties do not cite and the COA did not find any Kentucky case law that directly addresses the question of whether a majority of lot owners may act together to create restrictions that are enforceable against every lot owner in a subdivision, a survey of relevant cases from other jurisdictions, as well as the secondary literature regarding the creation of valid covenants, supports the view that the 1988 restrictions were not validly created and are, therefore, unenforceable against the Blacks.

The barrier to their enforcement is precisely their lack of mutuality. They were created by an unspecified majority of lot owners, yet in order to be effective must bind all lot owners in the subdivision.

In this obstetrical medmal/informed consent case, CA affirms TC denial of SJ to appellants, reverses TC entry of SJ for doctors and remands.

Appellants alleged that doctor failed to counsel mother about the risks of vaginal birth after C-section (VBAC). They alleged that she was counseled as to the risks too far into her labor to make a rational decision. While the primary OB/GYN failed to expressly document the discussion, he claimed at deposition that he instructs all VBAC patients of the risks, including uterine rupture, at every prenatal visit. Appellants allege the discussion did not take place until the eve of delivery when an associate OB/GYN handled the delivery.

When mother went into labor, her primary doctor was on vacation and his associate was unfamiliar with her chart. The associate sent her home with instructions to return when her water broke. Upon her return, the associate prescribed Pitocin, but did not physically examine the patients until several hours after their arrival at the hospital. At this late hour, appellants contend, they were informed of the risks of VBAC and given some time to decide how to proceed. They claim the associate explained the VBAC as safer than a C-section, and therefore opted for the VBAC. The testimony of the two doctors was contradictory at times, in part because the primary doctor had been 2 weeks short on his gestational estimation. (This error meant that, if mother had been counseled as to the VBAC risks on her last prenatal checkup and had chosen C-section, the surgery would have had to have been scheduled before she reached the hospital for her delivery). During labor, mother's uterus ruptured, causing extreme distress to the baby. The baby later died of asphyxia.

After two continuances, doctors noticed the depo of appellants' main expert. At a pretrial conference appellants' attorney stated that if the depo were not arranged, appellants would not call this expert at trial. A court order along those lines was entered. The depo was set, but the doc failed to appear. The TC then denied appellant's motion for SJ, excluded this expert, and granted doctors' motion for SJ.

CA held that plaintiff's expert was properly excluded, but that this should not have prohibited the case from going to the jury. The appellants could establish the standard of care on informed consent through other medical testimony.

This matter is before the COA on a writ of mandamus and/or prohibition filed by petitioner, Scott Kolter, and the response of the real party in interest, CSX Transportation, Inc. Kolter, plaintiff to a personal injury action against CSX, his employer at the times referred to in the complaint, was seeking an order from this Court that would direct the respondent trial court to amend two discovery orders or prohibit it from enforcing the orders.

Kolter, relying on Bender v. Eaton,  claims entitlement to a review of the merits of his original action by arguing that the forced discovery of material that is privileged would cause him and the administration of justice irreparable harm and that this Court must protect his work product from wrongful disclosure.

Kolter claimed his request for Dr. Gordon’s report and raw data was made pursuant to CR 26, not CR 35.02. He argues that CSX previously indicated in its Disclosure of Expert Witnesses that it would produce the report, which is information that CSX is required to provide under CR 26 since it has designated Dr. Gordon as a testifying expert.

As to the merits, CSX argued that Dr. Morrow’s report is discoverable under CR 35.02, which makes no exception for non-testifying experts. CSX argued that it is Kolter’s motion to compel the production of Dr. Gordon’s report, and its receipt by him, that triggered his reciprocal obligation to deliver like reports to it and that the fact that he withdrew Dr. Morrow as a testifying expert is not material to that obligation.

COA now proceeded to decide whether the trial court erred in ordering Kolter to produce to CSX Dr. Morrow’s raw test data and report, or her raw test data alone if she did not actually prepare a report.

COA did not believe that the fact that CSX had previously announced that it would produce Dr. Gordon’s report and raw data somehow excludes this matter from the operation of CR 35.02(1).

COA also believed Kolter’s work product argument may have had merit if Dr. Morrow had not physically examined Kolter and had merely submitted an advisory opinion.   However, Dr. Morrow did physically examine Kolter and, as a consequence, the report of her examination becomes discoverable under CR 35.02(1).

Therefore, CSX is entitled to discover Dr. Morrow’s report of Kolter’s examination, if she prepared one. However, a plain reading of CR 35.02(1) leads to the interpretation that CSX is not also entitled to the raw test data collected by Dr. Morrow even if she did not prepare a report.

This narrow construction of the extent of discovery allowed by CR 35.02(1) is warranted because this Rule carves out an exception to the otherwise strictly enforced provisions of CR 26.02(4)(b) as they apply to “facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial....”   The COA was not cited to any authority to the contrary.

Though justiciability has no precise definition or scope, doctrines of standing, mootness, ripeness, and political question are within its ambit.”

Newberry’s “mere citizenship and/or residency in a particular city will not in and of itself form sufficient basis to assert standing to challenge a city ordinance; rather there must be a showing of present and substantial interest, as opposed to a mere expectancy.”

Kevin alleged that there were items of “joint” property, both real and personal, to be divided between the parties.  Robert entered a special appearance and filed a motion pursuant to Ky. R. Civ. P. 12.02 to dismiss the complaint for lack of jurisdiction. Robert claimed to be a resident of Indiana and asserted that during the relationship both his residence and business were located in Indiana. Robert further asserted that while the parties resided in Indiana, they accumulated personal property in Indiana, and maintained a checking account in Indiana. Robert argued the circuit court lacked personal jurisdiction over him.

In its order, the circuit court concluded it could exercise personal jurisdiction over Robert as to the invasion of privacy claim. The court further concluded it could exercise in rem jurisdiction over the claim related to the burial plot located in Kentucky. The court dismissed the remaining claims for lack of jurisdiction.

KRS 454.210(2)(a)(3) provides that personal jurisdiction may be exercised over a nonresident defendant who has caused tortious injury in this Commonwealth but only as to a claim that arises from such injury. Kevin has not asserted that the claims related to the investment account, checking account and personal property arose from Robert’s alleged tortuous conduct in Kentucky. As the claims did not arise from the tortious conduct, KRS 454.210(2)(a)(3) clearly does not confer personal jurisdiction over Robert as to those claims.

As the claims did not arise from the tortious conduct, KRS 454.210(2)(a)(3) clearly does not confer personal jurisdiction over Robert as to those claims.
 

CA affirmed the trial court's dismissal of Brumley's petition for a declaration of rights relating to a prison disciplinary action.  Brumley assaulted another inmate, causing several facial fractures.  After an investigation and evidentiary hearing, the prison adjustment committee penalized Brumley by ordering him to spend 180 days in segregation and to forfeit 360 days of good-time credit.  He then appealed to the prison warden who affirmed the committee's decision.  On appeal to the Bell Circuit Court, Brumley alleged various technical errors that the CA determined to be without merit.     

CA affirmed trial court's denial of Gower's petition for a declaration of rights.  Gower was serving a prison term in the Western Kentucky Correctional Complex when prison authorites conducted a random drug test.  After collecting a sample of Gower's urine, it was sealed in his presence and submitted for testing to a laboratory in Tennessee.  The lab later confirmed that the urine contained traces of controlled substances.  Shortly thereafter, the prison held a disciplinary hearing and punished Gower for his drug use.  Following an unsuccessful appeal to the prison warden, Gower filed a civil suit in Lyon Circuit Court basically alleging that the chain of custody for his urine sample was deficient.  The trial court denied his petition, stating that Gower had failed to prove exhaustion of administrative remedies under KRS 454.415.  In other words, Gower did not establish that he submitted the identical chain-of-custody arguments to the prison authorities.  Even if he had, the trial court reasoned, the chain of custody was sufficient to ensure a reliable test result.  Upon reviewing the record, CA affirmed the trial court's decision on identical grounds.  (Note that the opinion contains a lengthy, yet informative, discussion of chain of custody issues surrounding the collection of urine samples and subsequent out-of-state testing.)

COA affirmed denial of 11.42 petition. COA had previously remanded 11.42 issue for sole purpose of Circuit Court to conduct an evidentiary hearing on
whether defense counsel had discussed EED defense to assault charge that D ultimately pled guilty to pursuant to Alford. Circuit Court conducted hearing and found that defense counsel had discussed a possible EED defense with D prior to D's guilty plea. 

Of note is that D testified twice at the evidentiary hearing that defense counsel had discussed the EED defense with him. COA thus held that D did not overcome the first hurdle of Strickland that defense counsel's performance was deficient. 

D (22 years old) was convicted at trial of 3rd degree rape and PFO II for having sex with 15 year old female. Case came to light when 15 year old showed signs of sexually transmitted disease a few weeks after alleged consensual sex with D. 15 year old did not want to testify against D, but was compelled to do so by KY. D did not testify at trial and only issue
at trial is whether he had engaged in sexual intercourse with 15 year old. COA held that trial court did not improperly deny D's directed verdict
motion in that 15 year old's testimony, while inconsistent, was not so inconsistent so as to not have been believed by a reasonable jury.
 
COA also held that it was not error for trial court not to instruct on 3rd degree sexual abuse. First, COA held that D's attorney did not preserve this objection at trial by requesting instruction. Second, COA held that 3rd degree sexual abuse did not apply in this case b/c victim was 15 years old and one cannot commit 3rd degree sexual abuse if the victim is over 14 years of age (i.e. the jury could not have convicted D of 3rd degree sexual abuse even if instructed b/c the victim was over 14 years old).
 
Similarly, COA held that trial court did not err by not instructing on the crime of sexual misconduct.  Sexual misconduct only applies where victim is 14 - 15 years old and D is < 21 years of age. Here, D was 22 so he could not have been found guilty of this offense either so an instruction on the crime would have been improper.

D filed rule 60.02 motion on robbery convictions from 1984. Circuit Court denied motion for 'reasons stated in Commonwealth's brief.' COA affirmed. COA dismissed D's claims that Circuit Court could not 'parrot' the Commonwealth's brief in it's order.  Further, 60.02 motions must be made within a 'reasonable time.' COA held that Circuit Court did not abuse discretion by holding that D's 60.02 motion on the 1984 convictions was not made within a 'reasonable time.' Finally, COA held that D's arguments could have been made in other legal proceedings such as on direct appeal or through an 11.42 motion, and thus were not applicable to a 60.02 motion. 

At issue was whether an exception to Rape Shield Rule applied at trial. An exception to the Rape Shield Rule, KRE 412, permits the introduction of evidence of specific instances of sexual behavior by the alleged victim with respect to the accused of sexual misconduct when this evidence is offered by the accused to prove consent on the occasion charged. D  tried to introduce evidence at trial that on two prior occasions, the alleged victim had performed oral sex on him in exchange for drug money. The Circuit Court refused to admit D's proffered evidence reasoning that  the fact that the victim may have consented to oral sex with D on other occasions did not tend to prove that she consented to vaginal sex on the occasion
charged in the indictment. D entered a conditional guilty plea and argued this issue on appeal. COA affirmed Circuit Court.

COA held: 'We agree with Luckett's contention that KRE 412 does not require the prior sexual behavior to be of the same nature as the charged behavior, and we agree that both oral sex and vaginal sex constitute
'sexual behavior.' But Luckett's argument fails to take into account the issue of 'consent,' which we believe to be the most pertinent factor of KRE 412. As the circuit court reasoned, evidence that a victim may
have consented to one form of sexual behavior in the past isn't necessarily indicative of consent to another form of sexual behavior. In this case, we
agree with the circuit court's reasoning that the fact that the victim may have consented to oral sex with Luckett on an earlier occasion does not tend to prove that she consented to vaginal sex on the occasion
charged in the indictment.

OF NOTE: KY argued on appeal that D did not properly preserve the issue at hand because he did not reserve 'in writing' pursuant to RCr 8.09 the issue regarding the Rape Shield ruling. D put in writing that the plea was 'conditional,' but did not note in writing what issue was to be appealed. COA held that D did not properly preserve issue, but considered it a
'palpable error' and thus decided the Rape Shield issue on appeal. 

Following a plea agreement between D and the KY, the Montgomery Circuit Court sentenced D to a maximum sentence of twelve years for first degree assault and driving under the influence of alcohol. These
convictions arose out of D's involvement in a motor vehicle collision in which the victim sustained personal injuries. D, KY and the sentencing judge understood that the plea agreement contained the
stipulation that the victim had sustained 'no serious physical injury.' The significance of this stipulation was to allow D to be classified in the corrections system as a non-violent offender for more favorable parole eligibility. However, the judgment (erroneously) was silent regarding the the fact that the victim had sustained 'no serious physical injury.' The Department of Corrections (DOC) did not honor the oral stipulation on this matter, and it classified D as a violent offender under KRS 439.3401, a classification that significantly delays his parole eligibility. To enforce the intent of stipulation, D sued the DOC in the Franklin Circuit Court. That court dismissed his complaint based on a lack of authority to review the judgment of another circuit court and D appealed. COA affirmed Franklin Circuit Court.   

When the classification by DOC was discovered, D filed an 11.42 to try to correct the situation. The Montgomery Circuit Court then tried to correct the error through a 60.02 proceeding noting that the victim had sustained 'no serious physical injury.'  The Circuit Judge even sent a letter to DOC regarding the matter. B/c of the Circuit Courts' steps, D dropped his 11.42 thinking the matter would be  resolved. DOC then initially changed D's status making him eligible for parole after serving 20% of his sentence and the parole board gave him a 2 year deferment. But then, the parole reversed itself and said D was a violent offender with an 85% parole eligibility. 

D then sought a declaratory judgment against DOC asking that D be considered a non-violent offender.    DOC responded that D was convicted of the class B felony offense of Assault 1st, and thus had to be considered a violent offender b/c that crime requires a finding that D caused 'serious physical injury' and thus the Montgomery Circuit Court's ruling that he had not was a legal impossibility. The Franklin Circuit Court dismissed the declaratory action holding that it did not have jurisdiction in that one Circuit Court does not have the authority to rule on the judgment of another Circuit Court. COA agreed.

OF NOTE: COA said that even if this case had been properly before the Franklin Circuit Court, and thus the COA, that the COA would have sided with DOC in that one cannot commit first degree assault w/o
causing serious physical injury to victim - i.e. first degree assault's elements include a finding that the victim received serious physical injuries. COA told D that his best remedy is to file a motion with the Montgomery Circuit Court claiming that he did not receive the benefit of his plea bargain (and thus may be able to withdraw his plea of guilty).  

COA VACATED and REMANDED D's conviction for second degree abuse of 11 month old child for new trial. D was boyfriend of mother of child. The child's injury was a leg fracture. 

On morning of trial, KY argued that D should not be allowed to present evidence that the baby sitter had acted inappropriately with the child on prior occasions, and thus might have caused the broken leg.  KY argued that such evidence violated KRE 404(b).  Despite the trial court order that motions in limine be made no later than 12 days prior to trial, the court granted the KY's motion in limine. D put on two witnesses by avowal regarding the baby sitter's actions. 

COA cited KY Supreme Court's cases holding that D has a 6th Amendment right to put on evidence of 'alternate perpetrators.' Such evidence is admissible unless it is 'unsupported, speculative and far-fetched.' Such 
evidence in not controlled by KRE 404(b) as that evidentiary rule involvs other bad acts of the defendant. Instead, only KRE 403 controls whether
other bad acts of another person is admissible at trial. COA reversed for new trial.

COA also noted that the trial court erred in concluding without proper inquiry that a defense witness (the child's mother) would invoke the 5th,
which she did not do on avowal. Proper procedure was for trial court to conduct a hearing outside the presence of jury to determine if witness had a 5th amendment right and whether she would invoke that right. Improper for trial court to just assume witness would take the 5th. 

COA also warned trial court not to allow the Sheriff to testify about the timing of the child's injury as the Sheriff was not a medical expert. COA denied D's arguments that trial court should have given directed
verdict. COA ordered new trial. 

This appeal interpreted and applied Islamic domestic relations law in determining whether Mohammad’s marriage to Marie, which took place after he had divorced his Jordanian wife, but prior to the expiration of the three-month idda period, was valid under Kentucky law. COA agreed with the trial court that the marriage was valid and thus affirmed.

003-CA-002231.pdf
Judge:  VANMETER
VACATING AND REMANDING 
Date: 3/11/2005
NOT PUBLISHED

AUDUS   V.  AUDUS
FAMILY LAW - MARITAL PROPERTY (QDRO)

In response to ex-wife’s motion to amend QDRO several years after the entry of the QDRO, TC in an ambiguous order both amended and denied amendment to QDRO.  On appeal, CA held that TC only had jurisdiction to modify or revoke the QDRO pursuant to CR 60.02  and thus ex-wife’s motion should have been made as a CR 60.02 motion.  However, ex-wife did not specifically refer to CR 60.02 in her motion nor did TC address jurisdiction or apply the criteria for CR 60.02 relief to the case.  Because there was no finding of jurisdiction at TC level, CA was unable to review whether TC’s exercise of jurisdiction was proper.  CA vacated and remanded to TC for jurisdictional findings and further directed TC to “take steps to avoid any further ambiguities pertaining to the parties’ QDRO.”