| Published
Decisions of Kentucky Court of Appeals for
Apr. 22, 2005 |
2004-CA-000557.pdf
Judge: MILLER
AFFIRMING
Date: 4/22/2005
PUBLISHED
|
WESTFIELD
INS. COS. V. QUALITY
SIGNS & SERVICE, INC.
INSURANCE - REASONABLE EXPECTATIONS
This appeal addressed the insured's
reasonable expectations regarding duty to
defend and potential duty to
indemnify. The case was a little
complex due to some conflict of laws
issues relative to Ohio tort law and
workplace intentional tort
precedents. However, under the "doctrine of reasonable
expectations," an insured is entitled to all the coverage he may reasonably expect to be provided according to the terms of the policy. Hendrix v. Fireman's Fund Ins. Co., 823 S.W.2d 937, 938 (Ky.App. 1991); Woodson v. Manhattan Life Ins. Co., 743 S.W.2d 835, 839 (Ky. 1987). |
| NonPublished
Decisions of Kentucky Court of Appeals for
Apr. 22, 2005 |
2003-CA-000396.pdf
Judge: DOMBS
DISMISSING
Date: 4/22/2005
|
HARRIS
V. BAKER
APPEALS - FINALITY OF ORDER (Contested
Estate Matter)
This involved an appeal filed out of
contested estate action in circuit court
denying the widow to purchase an item
bequeathed to her in a insolvent
estate. However, the order denying
the purchase was not final and appealable. |
2004-CA-000748.pdf
Judge: TAYLOR
DISMISSING
Date: 4/22/2005
|
SABREE
V. EMBRY
APPEAL - TIMELY (JURISDICTION)
A notice of appeal must be filed
within 30 days else the appellate court
has no jurisdiction. |
2004-CA-000745.pdf
Judge: JOHNSON
AFFIRMING
Date: 4/22/2005
|
S.L.,
A CHILD UNDER EIGHTEEN
V. COM.
APPEALS - FAMILY COURT (PRESERVING ERROR;
PALPABLE ERROR)
In this commitment of a child
proceeding, the minor failed to properly
preserve the issue for appellate review
with the COA finding no palpable error
committed by the family court and
affirming. |
2004-CA-000008.pdf
Judge: TACKETT
REVERSING AND REMANDING
Date: 4/22/2005
|
BOWLES,
RICE, MCDAVID, GRAFF & LOVE,
PLLC V. GETTY, KEYSER &
MAYO, LLP
ATTORNEYS - FEES
This
appeal addressed an attorney's fee dispute
involving the division of a contingent fee
after the client hired a new lawyer to
complete the claim. The circuit
court was ordered to conduct a hearing to
determine the reasonable value of the
services rendered by the replacement
attorney. This was the second time
this case had meandered up to the COA with
the first appeal reversing the circuit
court for erroneously applying the rule of
law in splitting fees and the circuit
court was directed to apply the formula
from LaBach v. Hampton, 585 S.W.2d
434 (Ky.App. 1979) and award the
contingent fee to the originally hired
lawyer who was not discharged for cause
less an amount equal to the reasonable
value of the services rendered by the
replacement lawyers. The circuit
court did not get it right on remand and
awarded a premium to the work performed by
the replacement lawyer based upon the
quality of the representation.
Wrong. No can do. Note the
fees were high as the case for $1.4
million and the replacement attorney was
awarded $437,097.00 in fees which would
not have left much for the attorneys who
signed up the contract originally. QuicKY:
If an attorney is discharged from a
contingent fee contract then he/she is
entitled to the benefit of that bargain
with the 'new' attorneys only be paid for
the reasonable value of their work.
The reasonable value is not enhanced by
any premium for doing a great job.
|
2004-CA-000001.pdf
Judge: BUCKINGHAM
AFFIRMING
Date: 4/22/2005
|
JONES
V. COM
CRIMINAL - Forfeitures in Drug Trafficking
This case involved a forfeiture of
property proceeding for trafficking in a
controlled substance when the drug dealer
drove his truck to the residence of a
confidential informant and sold the drugs
there. The burden is on the claimant
to prove by preponderance of the evidence
that the property was not subject to
forfeiture, and the claimant was
represented by counsel at the forfeiture
hearing who raised legal arguments.
Consequently, no need for an evidentiary
hearing.
|
2004-CA-000213.pdf
Judge: MCANULTY
AFFIRMING
Date: 4/22/2005
|
DUNN
V. DEPT. OF CORRECTIONS
CRIMINAL - Prison (Good Time)
This declaration of rights action
dealt with awarding and loss of good time
credits such that any eventual loss of
good time credits is discretionary
and does not increase the initial
sentence. |
2004-CA-000397.pdf
Judge: JOHNSON
AFFIRMING
Date: 4/22/2005
|
ANGLIN
V. COM
CRIMINAL - Probation Revocation
Trial court did not abuse it discretion in
revoking defendant's conditional discharge
on finding defendant had failed to
attend sex offender treatment, changed his
residence without permission, and falsely
reported his residential address.
|
2004-CA-000904.pdf
Judge: MCANULTY
AFFIRMING
Date: 4/22/2005
|
CARPENTER
V. KY PAROLE BOARD
CRIMINAL - Parole Revocation
Held convict was not eligible for parole
as his parole would have been revoked
automatically in 2003 under KRS 439.352
regardless of which procedure or result
received at the parole revocation hearing
rendering issue moot.
|
2004-CA-000966.pdf
Judge: JOHNSON
AFFIRMING
Date: 4/22/2005
|
LANE
V. COM
CRIMINAL - CR 60.02 (Untimely Motion)
CR 60.02 motion for jail time credit
was properly dismissed as untimely.
|
2004-CA-000480.pdf
Judge: BUCKINGHAM
AFFIRMING
Date: 4/22/2005
|
GIBSON
V. COM
CRIMINAL
Held sufficient evidence at trial to prove
value of property of at least $300 for
offense of receiving stolen property.
|
2003-CA-002403.pdf
Judge: BUCKINGHAM
AFFIRMING
Date: 4/22/2005
|
RAY
V. COM.
CRIMINAL - RCr 11.42 Denied
Affirmed trial court's denial of RCr
11.42 as issues should have been raised in
appeal.
|
2004-CA-000973.pdf
Judge: TAYLOR
AFFIRMING
Date: 4/22/2005
|
MCGINNIS
V. MORGAN
CRIMINAL - DECLARATION OF RIGHTS (Statute
of Limitation)
Appellant's petition for declaration
of rights alleging violation of inmates's
constitutional due process rights in a
prison disciplinary proceeding is one year
under KRS 413.141(1)(A) and was dismissed
as time barred.
|
2003-CA-002526.pdf
Judge: JOHNSON
AFFIRMING IN PART, REVERSING IN PART, AND
REMANDING
Date: 4/22/2005
|
BURDUE
V. COM
CRIMINAL - Instructions (Self-defense;
self-protection)
Jury instructions were erroneous for
not containing the whole law of the case
when judge refused to give an instruction
on manslaughter in the second degree and
not instructing on imperfect
self-protection. |
2004-CA-000787.pdf
Judge: MCANULTY
AFFIRMING
Date: 4/22/2005
|
KING
V. COM
CRIMINAL - Sentencing
Defendant waived issue that trial court
entered an incorrect sentence by pleading
guilty.
|
2004-CA-000029.pdf
Judge: HENRY
AFFIRMING
Date: 4/22/2005
|
MARSHALL
V. COM
CRIMINAL
Not a very significant decision which
appears fact based regarding sufficient
corroborating evidence outside of
confession to establish robbery. |
2004-CA-000825.doc
Judge: VANMETER
AFFIRMING
Date: 4/22/2005
|
MOFFITT
V. COM
CRIMINAL - EXPUNGEMENT
KRS 431.076 permits expungement at the
discretion of the court, and COA found no
abuse of discretion in denying same under
the facts of this case.
|
2004-CA-000550.pdf
Judge: HUDDLESTON
REVERSING AND REMANDING
Date: 4/22/2005
|
YORK
V. COM
CRIMINAL - Ineffective Assistance of
Counsel
Trial defense attorney rendered
ineffective assistance by failing to
retain expert witness to attack lynchpin
of the Commonwealth's case that attack and
death of victim were not simultaneous and
no direct causal connection between the
two events. |
2003-CA-001079.pdf
Judge: JOHNSON
VACATING AND REMANDING
Date: 4/22/2005
|
LAWS
V. RIDDELL
DAMAGES - CONSTRUCTION (SUBSTANTIAL
PERFORMANCE)
COA found palpable error in the jury
instructions in this construction case in
which the homeowner's substantial rights
were affected by instruction in which
there was a substantial possibility that
the jury would have awarded less
damages. Under the substantial performance doctrine, a builder, upon substantial performance, is entitled to recovery of the contract price notwithstanding
the work may have been defective or incomplete.
However, the doctrine further provides that the homeowner is entitled to recover damages from the builder for incomplete or defective work. Thus, Instruction No. 6 failed to include the entire law applicable to this case. |
2003-CA-001150.pdf
Judge: VANMETER
AFFIRMING
Date: 4/22/2005
|
VINCENT
V. OHIO COUNTY SHERIFF ELVIS DOOLIN
EMPLOYMENT LAW - AT WILL EMPLOYEES (COUNTY
GOVERNMENT)
Deputy sheriff alleged he was
wrongfully discharged without a
hearing.
Contrary to ex-deputy's argument, KRS 70.030(4) clearly is intended to provide local county governments with the option of either providing or not providing merit board protections to deputy sheriffs. If such a board has not been established within a particular county, it must be concluded that deputy sheriffs in that county continue to be hired under KRS 70.030(1) as at-will employees. |
2004-CA-000028.pdf
Judge: HENRY
AFFIRMING
Date: 4/22/2005
|
CAVINS
CRIMINAL
EVIDENCE - DECLARANT UNAVAILABLE (KRE
804(B)(3)
This criminal appeal addressed the
sufficiency of corroboration and the
application of KRE 804(b)(3) of statements
against penal interest. Trial courts
are left with substantial discretion in
determining the sufficiency of
corroboration. “In order for the hearsay exception for statements against penal interest to apply, the proponent of the statement must show that the declarant is unavailable.” Marshall v. Commonwealth, 60 S.W.3d 513, 519 (Ky. 2001) (citing KRE 804(b); Justice v. Commonwealth, 987 S.W.2d 306, 313 (Ky. 1998)). “A declarant is
unavailable if he is exempted from testifying by a ruling of the court on grounds of a privilege.” Id. (citing KRE 804(a)(1); Taylor v. Commonwealth, 821 S.W.2d 72 (Ky. 1990)).
COA could NOT conclude trial court abused
its discretion in rejecting the
introduction of the statement. |
2004-CA-000661.pdf
Judge: HENRY
VACATING AND REMANDING
Date: 4/22/2005
|
BADGER
V. BADGER
FAMILY LAW - CUSTODY (IN CAMERA INTERVIEW)
In this custody battle, the judge talked
to the child in chambers before entering
an order changing the designation of
primary custodian from mom to dad.
Mom a bit peeved appealed since judge made
no record of the interview. In
relying upon the Supremes which had held “[i]f a trial court accepts and acts upon statements made by the child during the in camera interview, it is manifestly unfair not to record and disclose the contents of the interview in order to provide an opportunity for rebuttal.”
COA agreed with the mom, and vacated the
trial court order since it could not see
any practical difference between failing
to record an interview and denying access
to an interview which was not recorded. |
2003-CA-002697.pdf
Judge: SCHRODER
REVERSING AND REMANDING
AFFIRMING
Date: 4/22/2005
|
BRAY
V. CALAHAN
FAMILY LAW - QDRO (60.02 RELIEF PER
PARTIES' INTENTIONS)
This family law dispute arose over the
selection of a benefit payment option of a
pension plan where the division of the
pension is not contested but the judge
ordered the ex-husband to elect a benefit
option giving the ex-wife survivor
benefits. Husband had failed to
contest this order in a timely manner and
file an appeal but he did seek relief
under CR 60.02(f) for "any other
reason of an extraordinary nature
justifying relief." COA
believed husband as entitled to relief and
remanded. Although, COA less
than enthused that husband should be
rewarded for failure to appeal, neither
should the ex-wife receive a benefit of an
order that was not in accordance with the
parties intent or the court's previous
orders.
P.S. Interesting interplay
of appeal vs. relief under CR 60.02 to see
that justice is served. |
2004-CA-000485.pdf
Judge: GUIDUGLI
AFFIRMING
Date: 4/22/2005
|
FIERRO
V. FIERRO
FAMILY LAW - PROPERTY (iNTERSPOUSAL GIFTS)
Four-part test on determining marital
status of a gift is review.
KRS 403.190(2)(a) excepts from “marital property” all
“[p]roperty acquired [by either spouse subsequent to the marriage] by gift, bequest, devise, or descent during the marriage and the income derived therefrom.” O’Neill v.
O’Neill sets out a four-part test to determine whether property given from one spouse to another falls within the statutory meaning of “gift”:
In each case, consideration should be given to the source of the money with which the “gift” was purchased, the intent of the donor at the time as to intended use of the property, status of the marriage relationship at the time of the transfer, and whether there was any valid agreement
that the transferred property was to be excluded from the marital property.
P.S. A gift by
any other name may still be a gift and
smell as sweet if not included as marital
property to the intended recipient of the
bounty. |
2003-CA-002307.pdf
Judge: SCHRODER
REVERSING AND REMANDING
Date: 4/22/2005
|
GUFFEY
V. GUFFEY
FAMILY LAW - CUSTODY (RELEVANT CONDUCT OF
PROPOSED CUSTODIAN)
In this dispute to change primary
residential custodian and terminate
ex-husband's maintenance obligation to the
wife based upon her receiving a male
visitor and turning out the lights with
the child in the home. COA found
there was no evidence there was a sexual
relationship going on between ex-wife and
Dr. "M". Furthermore, the
only other evidence was the kids calling
Dr. "M" grandfather and his
visits to the school on grandparent's
day. COA further found this did not
constitute substantial evidence that the
relationship adversely affected or was
likely to affect the children and the
trial court's finding this relationship
was an endangerment to the children was
clearly erroneous. Maintenance not
terminated and reversed and
remanded.
|
2003-CA-000962.pdf
Judge: HUDDLESTON
AFFIRMING
Date: 4/22/2005
|
MOORE-SEMAKULA
V . MOORE
FAMILY LAW - CUSTODY (DOMESTIC VIOLENCE,
FINDINGS OF FACT)
In this Jefferson County Family Court
case, COA held that the failure to family
court judge's attention that he had not
made adequate findings of fact on the
issue of domestic violence was waived. |
2003-CA-002545.pdf
Judge: MCANULTY
AFFIRMING
Date: 4/22/2005
|
NOEL
V. NOEL
FAMILY LAW - CUSTODY (Modification;
evidentiary hearing)
Trial court's failure to conduct
evidentiary hearing before modifying child
custody was not error and award was
affirmed. Mom lost for three reasons
- 1. she did not claim trial court's
conclusion was erroneous; 2. she did
not point to any evidence she was deprived
of presenting; and 3. mom was offered
opportunity to present additional proof
and did not do so. |
2003-CA-000022.pdf
Judge: TAYLOR
AFFIRMING
Date: 4/22/2005
|
TONG
V. TONG
FAMILY LAW - MARITAL PROPERTY (Accounting)
In marital property dispute, the
general rule is that an accounting of
marital funds is not required unless
dissipation of marital assets is
alleged. Wife's failure to allege
husband dissipated the marital assets
proves fatal. |
2003-CA-002555.pdf
Judge: TACKETT
AFFIRMING
Date: 4/22/2005
|
MCKINNEY
V. KY STATE BOARD OF
REGISTRATION FOR PROFESSIONAL ENGINEERS
AND LAND SURVEYORS
PROFESSIONS
Affirmed board's
decision revoking engineer's license for
negligently practicing engineering in the
Commonwealth.
|
2004-CA-000484.pdf
Judge: TACKETT
AFFIRMING
Date: 4/22/2005
|
BENNETT
V. NATIONWIDE MUT. FIRE AND
INS. CO.
SETTLEMENT AND RELEASE - REVOCATION OF
OFFER (NEW COUNSEL)
Claimant not happy that trial court
enforced a settlement agreement after she
had fired her lawyers and had new
counsel. Offer of settlement was not
revoked when she hired new counsel to
pursue her action. Offer was still
valid and on the table for
acceptance. New counsel could have
contacted other side about status of
negotiations.
P.S. Actually
the offer was on the table if accepted in
the "immediate future" and
acceptance within 5 weeks was immediate
enough. Clark v. Burden, the actual
authority case in settlement circles, was
not cited and really not applicable since
no dispute arose regarding the authority
of the attorney to make the offer but
whether the offer was revoked when the
offering attorney was given the
boot. For what it is
worth, there is not a single legal
citation (statute or case law) in this
opinion. You would think that the
attorney's authority to make an offer
would expire when he no longer has the
authority to act on behalf of the
client. Furthermore, offers are
capable of being accept so long as they
are alive and viable or within a
reasonable amount of time.
"Immediate future" and fired
counsel would seem to have tolled the
death bell on this offer.
Goofy facts make goofy law in a case in
which the fight was over a $6,000
settlement. Parties lose, and
insurance lawyer wins. Cha-ching.
$$$$ |
2003-CA-001991.pdf
Judge: SCHRODER
AFFIRMING IN PART, REVERSING IN PART, AND
REMANDING
Date: 4/22/2005
|
BOLT
V. BOLT
SETTLEMENT AND RELEASE - DIVORCE
(AGREEMENT; COUNTER-OFFER)
This is a settlement and release issue in
a divorce case rather than the usual
personal injury settlement. This
time the COA specifically referenced Clark
v. Burden and noted that a client may give
his attorney authority to settle the case
and is thereafter bound by any
settlement.
The facts are not
altogether unusual. Specifically an
offer was made on the property settlement
and faxed with the provisio it would
remain open for a set period of
time. No reference was made in the
offer about including or excluding
an insurance check. The same day, appellee’s attorney faxed an acceptance “with the understanding that the check which your client received from the insurance company . . . is to be awarded to my client.” Nothing happened
until after the deadline.
The party making the offer claimed it was
accepted, and the other side said it was a
counteroffer. The trial court said
bingo we have an agreement, but the COA
deigned to disagree and held the circuit court erred in enforcing the agreement because the issue of the insurance proceeds was never agreed upon. Therefore, there was no agreement, and that part
of the judgment must be reversed and remanded for further proceedings. |
2004-CA-001492.pdf
Judge: TAYLOR
REVERSING
Date: 4/22/2005
|
KELLY
TEMPORARY SERVICES V.
MAGGARD
WORKERS COMP
The Board framed the issue before it as “whether, under existing Kentucky
law, a claimant is entitled to medical treatment to address disfigurement that has resulted from a work-related injury producing disability.” The Board
interpreted the ALJ’s decision as denying benefits where the proposed medical treatment is cosmetic in nature.
The burden of proof is always with the employee to prove the
work- relatedness of the injury, and the employer is under no obligation to pay for
medical benefits until an injury award has been rendered. R.J. Corman R.R. Const. v. Haddix, 864 S.W.2d 915 (Ky. 1993).
COA held it was within the province of the ALJ to infer that Dr. Bray believed the second scar revision surgery to be unproductive. See Miller v. East
Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997); Luttrell v.
Cardinal Aluminum Co., 909 S.W.2d 334 (Ky.App. 1995). Unlike the Board,
the COA viewed this case as presenting conflicting medical evidence upon whether the second scar revision surgery was reasonable and
necessary for the treatment of appellee’s hand injury. In such situation,
“the question of which evidence to believe is the exclusive province of the ALJ.” Square D. Co., 862 S.W.2d at 309. For these reasons,
the Board improperly reversed the ALJ’s conclusion that the second scar
revision surgery was non-compensable.
|
2004-CA-001565.pdf
Judge: SCHRODER
AFFIRMING
Date: 4/22/2005
|
BOWLING
V. LESLIE COUNTY BD OF EDUCATION
WORKERS COMP - Work-Related Injury
COA found no flagrant error in
assessing the conflicting evidence of a
question of fact whether the disability
was work-related or a subsequent non-work
related injury. Affirmed decision
denying benefits. |
2004-CA-001927.pdf
Judge: HENRY
AFFIRMING
Date: 4/22/2005
|
NICHOLSON
V. AMERICAN GREETING CARDS
WORKERS COMP
Claimant lost because he failed to timely
give notice of the claim and establish he
had sustained a work-related injury.
|
