CA reversed TC's denial of Brown's motion alleging ineffective assistance of counsel.  Following a joint trial of Brown and a co-defendant, Brown was convicted of Second Degree Arson, Second Degree Burglary, and Persistent Felony Offender in the First Degree.  He was later sentenced to 80 years in prison.  His RCr 11.42 motion alleged that trial counsel failed to object during jury selection when the judge assigned 9 peremptory challenges instead of 13 as required under the circumstances. RCr 9.40.  Specifically, Brown's counsel told the court, "Your honor, we'd like to ask for extra strikes."  The judge denied the request.  CA held that merely requesting bonus peremptory strikes is not sufficient to preserve the error for appellate review.  Further, when a trial judge assigns an insufficient number of strikes to a defendant, reversal is required as a matter of law.  Springer v. Commonwealth, 998 S.W.2d 439, 445 (Ky. 1999).  Consequently, the performance of Brown's counsel was deficient.  Because Springer holds that insufficient peremptory strikes are always prejudicial to defendants, counsel's deficient performance in this case resulted in prejudice to Brown.  Hence, reversal is required and Brown gets a new trial.  

Editor's Note:  Defense 101: When objectionable events occur during trial, always utter the magic word "objection" and state the relief that you request.  Here, Brown's attorney failed to do that and, sadly for him, he now has a published opinion memorializing this error.    

Appellant, a truck driver was subjected to a random drug test. At the time of the test he requested a split sample. A split sample was not done and when the test came back positive,  Appellant was fired based on the positive result.  A subsequent body hair test revealed the first test to be a false positive. Appellant was unable to find other employment because whenever he applied for a position he was required to sign a consent and release form which authorized his former employer to release prior drug testing results (even false positives).  Appellant filed suit against Appellees alleging, among other things, wrongful termination and defamation.

Appellee moved to dismiss the complaint for failure to state a claim. TC granted Appellee's motion. On appeal, Appellant argued the exception to the employment at will doctrine which allows a cause of action for wrongful termination (i.e., the discharge is contrary to public policy as evidenced by existing law and the policy is evidenced by a constitutional or statutory provision).  The COA declined to apply the exception holding the statute in question was a federal not a state statute and the federal statute was not specifically directed at providing statutory protection to the worker in his employment situation.  Therefore, the exception could not apply.  The COA also found the employer's failure to follow the federal regulations was not negligence per se because the regulation was not designed to prevent such an injury.

In reviewing the TC's grant of Appellee's motion to dismiss the defamation claim, the COA reversed, holding pursuant to CR 12.02, the facts which Appellant alleged stated a cause of action for defamation sufficient to survive a motion to dismiss.

CA affirms in part and reverses in part TC entry of directed verdict against employee alleging retaliatory conduct and IIED by her employer. (Jefferson Cir. Ct., Hon. Martin McDonald, Judge, presiding).

Appellant testified for a co-worker (and, therefore, against Employer) at the co-worker's unemployment hearing. By agreement, appellant's testimony at the hearing was to be admitted in co-worker's reverse discrimination action taken separately in civil court; appellant had been under subpoena in this action. The civil action settled and was dismissed before the testimony was admitted.

Shortly after the dismissal of former co-workers' discrimination action, Appellant's superiors sent her a memo reprimanding her for actions she took 18 months prior that were tangentially related to the office squabbles that lead to the discrimination action. Certain managerial duties were removed from Appellant. Appellant filed suit alleging retaliation in violation of the Kentucky Civil Rights Act as well as IIED. The defense argued no retaliation in violation of the Civil Rights Act because Appellant had not engaged in protected activity under KRS 344, but had only testified at an unemployment hearing under KRS 341.

CA held TC was ultimately correct to exclude evidence between Appellant, as representative of the company, and the company's lawyer. CA also reversed TC's directed verdict on retaliation, holding that Appellant was engaged in protected activity as her testimony was to be admitted in the civil action and Employer had acted adversely to her because of it. Finally, CA upheld TC dismissal of IIED claim b/c Appellant failed to present a prima facie case.

Appellant Marin was hired in 1989 to manage the Man O War Restaurant’s (“MOWR,” the Appellant herein) Sizzler in Lexington.  His five-year contract permitted him to purchase 25% of MOWR’s stock for $1000, but required him to return the stock for the purchase price if his employment was terminated before the end of the contact.  MOWR terminated Martin’s employment after three years and filed this suit in 1992. 

Initially the Fayette Circuit Court ruled in favor of MOWR. However, this decision was reversed on appeal on the basis for the Commonwealth’s public policy against forfeiture.  The case was remanded so a jury could value the stock at the time of Martin’s surrender back to MOWR.  In 2000, a jury concluded the stock’s fair market value had been zero. Again on appeal, the zero verdict was held to be inadequate and contrary to the proof.  The case was remanded for a new trial to determine damages in an amount not less than $1000.

By the time the trial court heard the case for the third time, the state legislature amended KRS 27B.6-270 to permit restrictions on the transfer of shares as contemplated by the parties herein.  Accordingly, MOWR moved for summary judgment, which was granted.  This appeal followed. 

On this, the Court of Appeal’s third review, they held that the doctrine of res judicata prevented retroactive application of the revised statute to this case.  The COA remanded the case yet again for a new trial.

Two defendants, Hannan Supply and Petter Supply, argued to apply the "middleman statute" in Kentucky's Products Liability Act, KRS 411.340, to remove them from the action by SJ. Appellant argues the statute does not apply because there exist other as-yet-unnamed (and probably never-to-be-named) manufacturers as defendants. CA holds that the middleman statute does apply in this instance to protect these suppliers. 

CA, however, agrees with appellant that SJ was premature as to when the suppliers know or should have know of the dangers of asbestos. Appellant presented evidence that created an issue of fact. Finally, one supplier's grant of SJ was upheld as the evidence showed that that supplier, Mine Equipment & Supply, had been incorporated after appellant's exposure and was not a successor corporation to a defendant corporation.

While the circuit court in this case affirmed the district court’s order informally adjusting the case, it is clear from the C.J. case that the Commonwealth had no right to appeal the informal adjustment. Therefore, the memorandum opinion of the Jefferson Circuit Court affirming the district court’s informal adjustment is vacated and this matter is remanded with directions that the circuit court enter an order dismissing the Commonwealth’s appeal.

CA affirmed TC's denial of Holt's motion to dismiss his indictment due to prosecutorial misconduct.  The case arose when Holt and several others were indicted in connection with a robbery.  Holt moved for a separate trial from his co-defendants which the trial judge granted.  A jury trial was held for Holt, and a mistrial was declared when jurors were unable to reach a verdict.  Before his retrial, the Commonwealth formed a plea agreement with a co-defendant named Patterson.  The terms of the plea included language that Patterson "not attempt to provide exculpatory evidence" if called as a witness during Holt's retrial.  After the plea was entered, Patterson told Holt's trial counsel that he would not testify if called as a witness at Holt's retrial.  CA held that the language in Patterson's plea agreement prohibiting Patterson from providing exculpatory evidence, while inartfully drafted, did not constitute prosecutorial misconduct.  Instead, it was merely an attempt to make sure that Patterson did not testify (at Holt's retrial) in a manner contrary to the facts stated in his (Patterson's) agreement.

CA affirmed TC's denial of Hunt's motion to suppress a search of his residence and subsequent seizure of drug paraphernalia.  The appeal arose after Hunt entered a conditional guilty plea to misdemeanor possession of drug paraphernalia and received a 60-day sentence probated for one year.  Police appeared at Hunt's apartment because of a complaint of crack cocaine activity.  He allowed them to enter and, during a warrantless search, they found a glass crack pipe.  He later moved to suppress the search, arguing that he did not consent to it.  At the suppression hearing, the TC heard testimony from Hunt to this effect and also heard testimony from the lead officer that Hunt actually gave consent.  CA held that the trial judge's determination that Hunt gave consent was supported by substantial evidence.

CA affirmed TC's denial of Matthews' motion for postconviction relief alleging ineffective assistance.  He was convicted at trial of various offenses including DUI -- Fourth Offense, First Degree Assault, and Persistent Felony Offender in the First Degree.  The jury recommended a 50 year sentence which the Kentucky Supreme Court affirmed on direct appeal.  Ultimately, he filed an RCr 11.42 motion alleging that his trial counsel was ineffective for failing to investigate and present Matthews' history of alcoholism as a defense or mitigating factor (in the penalty phase).  CA held that: (1) alcoholism was not a defense to the charges; and (2) there was no reasonable probability that the outcome of the trial would have been different if counsel had presented evidence of alcoholism as a mitigating factor.  Norton v. Commonwealth, 63 S.W.3d 175 (Ky. 2002).

CA affirmed TC's denial of Pergram's RCr 11.42 motion alleging ineffective assistance of counsel.  Pergram was convicted of two counts of Menacing and was sentenced to consecutive 90-day terms and a $500 fine.  His convictions were affirmed on direct appeal.  He then filed the present motion alleging that his arrest was illegal and that the TC failed to consider probation before imposing sentence.  TC denied the motion.  CA affirmed, holding that the illegality of the arrest was an issue of his direct appeal and that the other ground for relief was not presented to the trial court.  Consequently, neither was subject to appellate review under RCr 11.42.  Brock v. Commonwealth, 479 S.W.2d 644 (1972) and Brown v. Commonwealth, 788 S.W.2d 500 (Ky. 1990).      

CA affirmed TC's denial of Polley's motions for post-conviction relief under CR 60.02 and RCr 11.42.  He previously pleaded guilty to Second Degree Sodomy and received a 5-year prison term.  Pursuant to KRS 532.043 and 532.060, he was required to have a 3-year conditional discharge (CD) period after leaving prison.  He moved the trial court to eliminate the CD time because he believed the statutes violated the separation of powers doctrine and the prohibition against double jeopardy.  CA rejected both arguments, holding that: (1) because the statutes adjudicated Polley's "status" as a sex offender, there were no multiple punishments for the same offense; and (2) the statutes did not improperly delegate legislative and judicial authority to the executive branch and did not infringe upon legislative authority by allowing the judicial branch to revoke CD time after a defendant is sentenced.  

CA affirmed TC's denial of Powell's motion to withdraw his guilty plea.  Powell entered an Alford plea of guilty to Incest, First Degree Rape, and First Degree Sodomy involving a minor relative in exchange for a 12-year sentence.  Before his sentencing hearing, he obtained new counsel and moved to withdraw the plea because his prior counsel failed to advise him of witnesses who would testify that the victim had recanted her story.  TC held an evidentiary hearing and determined that the plea was voluntarily entered.  It further found that prior counsel's advice to plead guilty was reasonable because the new witnesses (close relatives of Powell) never came forward until after the guilty plea.  See Bronk v. Commonwealth, 58 S.W.2d 3d 482 (Ky. 2001).  

This matter was remanded so that the trial court can review the record of the suppression hearing previously conducted and enter into the record specific findings of fact and conclusions as to whether the evidence taken as a result of Officer Rice’s search of the white vehicle should be suppressed.

At CA, Mom argues that the 1992 CS order was a pendente lite order entered pursuant to KRS 406.025, and thus the permanent CS order should have been retroactive to the date of that order.  CA first noted that KRS 406.025 had not been enacted in 1992, but that even if it had, Mom’s argument failed.  KRS 406.025 provides that the initial order of support is temporary, and that after hearing, that order of support shall be retroactive to the date of the filing for the motion for temporary support.  Here, CA found that TC did hold a hearing prior to the 1992 CS order, and thus this was the permanent order.  This made the 1998 motion one to modify support, and so TC correctly made its most recent CS order retroactive to the 1998 filing. 

Mom next argued that TC erred by failing to include Dad’s passive income and certain deductions for the purpose of setting CS.  CA found no abuse in TC’s discretion in TC’s reference to Dad’s adjusted gross income as stated in his tax returns.

Lastly, Mom argued that Dad should not received a credit to his CS arrearage for payments made for the child’s medical expenses, on the grounds that these payments are characterized as “extraordinary medical expenses,” and are thus treated separately from a CS obligation.  However, CA held that, as Dad had not been ordered to pay any portion of child’s extraordinary medical expenses, TC did not abuse its discretion in giving Dad this credit. 

CA pointed out that Dad had used parenting time calculations as bases for receiving PRC status in his own arguments to TC, and admonished that Dad should be careful what he asks for, as he just might get it.  Putting aside this argument, CA found that TC’s order was based on historical practices and agreements of the parties, not the “mathematical computation of time” the children had spent with each parent since the divorce.  TC affirmed.    

CA affirms TC finding that children-appellants were neglected by parent-appellant and that temporary removal was supported by the evidence.

Social Worker (SW) saw an unsupervised and unrestrained 7-year-old and an 18-month-old alone in a running car parked at a McDonald's. The SW stayed with the children for approximately 3-5 minutes until parent-appellant returned; parent-appellant declined to speak with SW and left the scene. SW reported the incident and was assigned to investigate further. Five days later on a visit to the family home, SW again saw toddler unsupervised in parked car. Again, parent-appellant refused to speak with SW and left the scene. SW filed petitions alleging neglect; TC entered emergency custody orders (ECOs); and the children were placed in foster care. (The children were later placed temporarily in a relative's home).

At trial, parent-appellant testified that during the first incident, she was watching the children from inside the restaurant nearly the entire time. Parent-appellant also testified that during the second incident a friend was watching the child (though the SW saw no adult present). The TC found the children to be neglected and that parent-appellant had admitted as much under oath when she said there "might have been" a risk to the children. The children were ultimately returned to the family home, provided the parent cooperated with CFC.

CA holds "substantial evidence" supported TC's finding of neglect. Further, CA holds that TC did not abuse its discretion in entering the ECOs.

CA affirms TC decree dissolving appellant's marriage and finding the parties' property settlement agreement to be unconscionable. An alternate disposition of assets was ordered.

In the parties' 30-year marriage, they accumulated more than $2 million in assets, mostly from appellant's interest in a coal mine. (Appellant alleged that the coal mine interest was a gift from his brother). Appellant's wife had worked little outside the home for pay. In the fall of 1998, the parties agreed to divorce and they agreed to an approximate 1/3-2/3 division in appellant's favor. The parties knew that his portion was greater, but felt this was justified because of his work history. She was unrepresented when she signed the agreement drafted by his attorney, and later testified that she did not know the extent of the marital assets, had signed the agreement because he told her to, as was under great emotional strain. Wife later retained counsel and argued against incorporating the agreement in the decree. The Domestic Relations Commissioner (DRC) found the circumstances and the terms of the agreement unconscionable and filed two reports, which were accepted by the court, creating a total division of approx 50/50.

CA held mine interest was not a gift as appellant's brother testified that appellant was expected to work in exchange for the interest. CA also held the agreement was not merely a "bad bargain" but lopsided and detrimental to Wife's best interests. Appellant argued that wife had ample opportunity to renegotiate and seek independent counsel, but that she accepted the agreement for several reasons, including her fear that an affair would be revealed. CA held that substantial evidence supported the TC's ruling. CA also rejected appellant's argument that he was

The Court of Appeals affirmed dismissal of the counterclaim, but reversed the remainder of the decision.  The CoA concluded that KRS 61.310 does not prohibit donations of the type sought and accepted by Sturgill since the donations did not represent remuneration for services or duties performed by Sturgill and his office.  The CoA went on to hold that Sturgill KRS 134.310 did not require Sturgill to include the donations in his annual settlement with the fiscal court.  Lastly, the CoA held that Sturgill was not required to turn over to fiscal court private donations accepted but not yet disbursed.

Deed restriction case involving a mobile home.  Amazingly, TC held that since additions had been made to mobile home, thus "concealing" it, it did not violate restriction.  COA reversed, holding that mobile home violated restriction when placed on lot (duh!).

TC granted quiet title to McPhail on unimproved piece of land.  COA reverses on part of that land, holding that McPhail did not meet burden of having to prove ownership either by source of title or adverse possesion.

Bitter dispute by neighbors over easement over common area  Willoughby's file appeal, pro se.   Both arguments disposed of by COA.   

Appellant awoken in the early morning by noises around his apartment investigates. He discovers several Louisville police officers investigating a domestic disturbance.  Here the stories diverge until all once again agree that appellant was arrested and charged with harassment with physical contact, menacing and resisting arrest. he was found not