Around the Circuit

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  This year's  Workers Compensation Seminar will be held on June 2-3 at the Clarion East Hotel & Conference Center in Louisville, Ky.  The Agenda and Registration Form are now available:

  Agenda

  Registration
   

The 12^thJudical Circuit Bar Association Presents:

 Appellate Practice in Kentucky
MAY 10, 2005 - 1:00 p.m. until 4:40 p.m.
Oldham County Circuit Court Room, 2^nd Floor
100 W. Main Street, La Grange, KY 40031

Topics to include:

• Technical Aspects of Practice in Appellate Courts
  Presented by: Hon. George Fowler, Court of Appeals Chief Staff Attorney

• Legal Research
  Presented by: Hon. William Hilyerd, University of Louisville, Brandeis School of Law 

• Original Actions in Appellate Courts
  Hon. Teresa Kinberger, Louisville Bar Association, Chair Appellate Section
   
• Appellate Practice, Procedure, Oral Advocacy, and Pitfalls
  Panel discussion with:
  • Hon. Wilfrid A. Schroder, Kentucky Court of Appeals, District 6

  • Hon. Karen Conrad , Circuit Judge for the 12^th Judicial Circuit

  • Hon. Phillip J. Shepherd, Franklin County Attorney concentrating in Appellate work

  • Hon. Teresa Kinberger, Louisville Bar Association, Chair Appellate Section

Application for approval of this activity for a maximum of 3.5 credits, including 0 ethics credits is PENDING before the Kentucky Bar Association Continuing Legal Education Commission

CLE FREE for all Twelfth Judicial Circuit Bar Association members.  $25 for all non-members, this fee includes membership in the Twelfth Judicial Circuit Bar Association

Please call 502-225-4770 for a reserved spot, encouraged but not required.

Kentucky has now has joined 14 other states by adopting a new Cause of Action called "The Lost Chance of Survival/Recovery." The CA reasoned that this new theory of recovery is a logical extension of the "increased risk of future harm" theory which has already been approved by the Supreme Court.

The lost chance of recovery/survival is recognized as a compensable injury in a med mal case where the chance of survival/recovery is 50% or less before the negligent act. If the chance of survival /recovery is greater than 50% then the traditional all or nothing approach would apply and the compensable injury would still be viewed as the underlying injury.

The CA in this case approved specific Jury Instructions in its opinion for this new theory of recovery.

The Cabinet for Health and Family Services brought a petition to terminate the parental rights of the Appellees. After hearing evidence, Hopkins Circuit Court dismissed the petition. This appeal followed.

The Appellees filed a motion to dismiss the appeal arguing KRS 625.110 allows individuals whose parental rights are terminated to appeal the termination, but does not permit the Cabinet to appeal dismissal of a petition. In their response briefs, the Cabinet and the guardian ad litem both argued that KRS 625.110 was unconstitutional because its denial of a right to appeal contravened sections 2 and 28 of the state constitution which prohibit exercise of absolute and arbitrary power by one department over another.

The Court of Appeals declined to reach the merits of the case, holding the Cabinet and GAL had failed to comply with KRS 418.075(2) which requires notification of the state Attorney General by parties challenging the constitutionality of a statute. Accordingly, the appeal was dismissed.

The Attorney General’s office commenced an action against Patriot Tobacco Company alleging violation of KRS 131.600, which requires tobacco companies selling cigarettes to consumers in Kentucky to pay into a qualified escrow account, pursuant to the 1998 Master Settlement Agreement between the states and tobacco companies. The Franklin Circuit Court issued an amended order dismissing Patriot’s counterclaim. Patriot appealed that order. 

The Court of Appeals held that the order was not final and was thus nonappealable. The court cited the order’s absence of language of finality as required by CR 54.02. Furthermore, the CoA looked to the plain language of the order which, in part, stated, “There are factual issues which need to be determined before a decision can be made on liability and damages.”

Transit Authority of Northern Kentucky ("Tank") and Campbell County try to condemn property from BIF to build and transit center.  Without conducting evidentiary hearing, TC issues order determining that Tank could not provide reasonable assurances that the intended use would come to pass.  COA vacates and remands because evidentiary hearing required pursuant to KRS 416.540(4).

Held the contract is lacking in consideration due to a failure of mutuality of obligation.  There was no dispute among the parties about the terms of the contract.  Mutuality of obligation is similar to consideration and stands for the principle that both parties to a contract must assume some legal liability to the other or else it will be found to be lacking in mutuality, and, therefore, consideration. David Roth’s Sons, Inc. v. Wright and Taylor, Inc., 343 S.W.2d 389, 390 (Ky. 1961). 

The question of mutuality in a contract, such as the one at issue, boils down to whether Beck “has in actuality no fixed obligations under the contract.” Id. at 391. If there are fixed obligations even though a right of termination exists in one party, the contract is not lacking in mutuality.

In the contract at issue it is plain that Beck has no fixed obligations. Under the contract Beck is not obligated to purchase the property at any time. He simply has an option to purchase and must exercise that option within five years from the date of execution of the contract. In order to make this option binding on the Chapmans the contract must contain some other consideration or obligation on the part of Beck in order to support the Chapmans’ promise to sell.

Technical modification of opinion originally rendered on January 21, 2005.  See prior summary in Lawwire issue with same date. 

CA affirmed McDonald's convictions for Cultivation of Marijuana, Trafficking in Marijuana, and Use of Drug Paraphernalia and his underlying sentence of 10 years.  Two issues were raised on appeal.  First, McDonald argued that the TC erred by failing to grant a mistrial when one of the Commonwealth's witnesses testified that McDonald had made an oral incriminating statement that had not been disclosed in discovery.  The Court held that there was no abuse of discretion in denying the mistrial because the prosecuting attorney was unaware of the statement and that RCr 7.24 only obligates the Commonwealth to disclose oral statements of which it is aware.  The second alleged error concerned the TC's failure to conduct a suppression hearing regarding a search of McDonald's residence pursuant to a search warrant and a subsequent seizure of marijuana, paraphernalia, and firearms.  CA held that the TC's denial of the motion was proper because there was no proof in the record that the affidavit supporting the search warrant contained deliberate or reckless falsehoods.  Franks v. Delaware, 438 U.S. 154 (1978).  Furthermore, the issue of whether a search warrant was validly issued does not trigger the requirement of a suppression hearing under RCr 9.78.    

CA affirmed Ross-Carter's conviction for Criminal Abuse in the First Degree for abusing a child under 12 years old.  At her jury trial, the prosecution presented evidence that Ross-Carter's adopted daughter had bruises and scratches on her neck, thighs, knees, lower legs, ankles, buttocks, and arms.  The injuries were shown in various photos submitted to the jury.  Ross-Carter testified that she merely spanked the child one evening for turning on a gas stove and allowing fumes to spread throughout their home.  She also stated that the child bruised easily because of a vitamin deficiency.  During an overnight break in jury deliberations, one juror went home, got on her computer, and looked up the statutory definitions of the culpable mental states in the Kentucky Penal Code.  When brought to the trial judge's attention, he interviewed her and determined that she had not shared the information with any other juror.  He also found that the definitions she reviewed were identical to those in the jury instructions.  Ross-Carter's counsel moved for a mistrial but the motion was denied.  The jury ultimately convicted Ross-Carter and she was sentenced to 6 years in prison.  On appeal, she raised a variety of errors that were not preserved for appellate review.  The only issue that was properly preserved concerned the juror's independent research regarding culpable mental states.  The Court determined that the trial court properly denied the motion for mistrial because the outcome of the trial and Ross-Carter's substantial rights were not affected.  See Cole v. Commonwealth, 553 S.W.2d 468, 471 (Ky. 1977) (juror's use of outside resources to look up definitions is harmless).     

COA rejected claim that he was entitled to change of venue in his second trial as a result of pretrial publicity from first trial.   On motion for change of venue based on pretrial publicity, the issue is whether public opinion is so
aroused as to preclude a fair trial.

Guilty plea waived any objection to firearm enhancement should not be based upon inoperable firearm and failure to raise objection to cross-examination waived error.

Appellant is discharged for unexcused absences because she failed to provide the necessary medical re-certification to extend her leave under FMLA.  She subsequently filed for unemployment benefits which were denied on the basis of misconduct (unexcused absences). She appealed the decision to the TC.  TC held the Commission's ruling was supported by substantial evidence.  On appeal, the COA affirmed finding the Commission had applied the correct law and that the ruling was supported by substantial evidence.

Dad appealed from TC’s order modifying a previous custody order and awarding primary residence and physical custody of child to the child’s maternal grandmother.  Dad first claimed that as the child’s natural father, he had the superior right to custody.  However, TC found, and CA agreed, that because Dad had previously entered an agreed order with grandmother in which they shared joint custody of the child, Dad waived his superior right to custody.  Dad next argued that it was error for the TC to name grandmother PRC because she did not file the motion for modification.  CA held that TC was required to consider what custodial arrangement was best for the child, and thus was not limited to a change of custody in favor of the movant.  Dad last argued that appointing grandmother as PRC had the practical effect of nullifying the award of joint custody to both parties.  CA clarified that joint custody referred to the custodians’ shared decision-making authority, but elaborated that even under this arrangement, one of the parties could be vested with ultimate decision-making authority as the PRC. 

The parties’ final hearing had been continued three times, twice to permit Mom to change counsel.  Mom requested a fourth continuance to obtain new counsel.  TC denied this request, but indicated it would reconsider the issue if filed by new counsel.  Mom chose instead to proceed pro se.  She claimed to CA that counsel would have raised property issues and would have fared better with the rules of evidence.  CA observed that property issues were not raised even while Mom was represented by counsel, and the only evidentiary finding that may have negatively impacted her case resulted from her own counsel’s motion.  Thus, TC’s denial to continue the hearing was not an abuse of discretion. 

Mom claimed that because she had been the primary care provider for the children, TC abused its discretion in awarding sole custody of oldest daughter to Dad.  CA held that there was ample evidence for TC’s finding that both parents were fit custodians, but that Mom’s relationship with daughter had become extremely strained, and that information coupled with daughter’s request to live with Dad justified court’s determination that her best interests would best be served by awarding sole custody to Dad.  TC affirmed.

Slip and fall on patch of ice at residential open house considered open and obvious danger as summary judgment dismissing claim against owner and realtor affirmed on appeal.

This case concerns a trustee's fiduciary duty to various parties to a trust agreement.  In 1984, Ollie Skonberg made a revocable trust with the bank as trustee.  She amended it in 1987 and named certain charities as remainder beneficiaries.  In 1997, she exercised her right to revoke it and made a new trust with an attorney as trustee, which did not name the charities as remainder beneficiaries.  The bank served as the new trustee's investment agent for a brief period.  After Ms. Skonberg died, the trustee informed the charities about its concerns that the new trust was the result of undue influence.  A will contest followed, and it was settled for a substantial sum of money.  The new trustee then brought a claim against the former trustee, alleging a breach of its fiduciary duty.  The trustee won a summary judgment, but the Court of Appeals is sending it back. 

The Court of Appeals held that the trustee could have challenged the revocation, but once it accepted the revocation and served as the new trustee's agent, it could no longer provide confidential information to the charities that had been named as remainder beneficiaries.  The Court of Appeals remanded the case.  Judge Knopf added a concurrence criticizing the majority for seeming to hold that the trustee had breached its duty as a matter of law and indicating the factual issues for trial.

NOTE: The facts are sketchy but it appears that only two months or so passed between Ms. Skonberg's revocation of the trust and her death.  Under the Court's holding, could a trustee that learned of the undue influence after accepting the revocation not act on that knowledge?  If the trustee had intended to challenge the revocation and to defend the trust, it would have been faced with using the Settlor's own money to argue that the Settlor was under undue influence.  Since that's not realistic, it seems like the Court's opinion furthers the cause of those who want to cover up undue influence. 

Two brothers, as co-administrator's of their mother's estate, obtained a district court order requiring their sister to turn property over to the estate.  She had owned it jointly with their mother.  The district court entered the order.  After her appeal to Circuit Court was dismissed as not being from a final order and a 2002 trip to the Court of Appeals on the discretionary review highway, she went back to Circuit Court and obtained a writ of prohibition.  The co-administrators then went to the Court of Appeals, which vacated the order issuing the writ and remanded with instructions to dismiss the petition.  The Court noted that writs of prohibition are not favored because they "disrupt the orderly, even if erroneous, proceedings of a trial court."  This writ did not satisfy either requirement for the issuance of a writ:  (1) that the court acted outside its jurisdiction, or (2) that the court committed error and there was no adequate remedy by appeal or otherwise.  The property involved here was a bank account and a CD and the Court noted that financial injury does not generally constitute irreparable injury.

Note:  The CD was worth $30,000, but the value of the bank account was not stated.  One does wonder what the net gain is after the cost of two trips to the Court of Appeals and the numerous District Court and Circuit Court hearings.