| PUBLISHED
DECISIONS FROM KY COURT OF APPEALS FOR
6/10/2005 |
2004-ca-000531.PDF
Judge: VANMETER
AFFIRMING
Date: 6/10/2005
PUBLISHED |
MEADE
V. RICHARDSON FUEL, INC.
BUSINESS LAW - Conversion
Seller entered into an oral agreement
for the sale of mining equipment, and
after the buyer defaulted, she brought a
conversion action against the mine owner
where the equipment had been used.
Wrong answer since there was no written
agreement. Since
the record is clear that buyer did not
authenticate a security agreement by his
signature or otherwise, under the
unambiguous terms of KRS 355.9-203(1) and
(2), seller's claimed security interest
never attached to the collateral, and it
was not enforceable against the buyer, or
any third party such as
the mine
. In
essence, seller was an unsecured creditor
of buyer.
|
2004-CA-000720.pdf
Judge: VANMETER
AFFIRMING
Date: 6/10/2005
PUBLISHED
|
ADKINS
V. JUSTICE CAB. DEP'T OF CORRECTIONS
EMPLOYMENT LAW - Discrimination
Burden to establish a
prima facie case is on the employee
alledging racial discrimination.
One Minute CLE a la
Judge Vanmeter: As
established by McDonnell
Douglas Corporation v. Greenand its progeny, an employee
who alleges gender discrimination must
establish a prima
facie case by demonstrating that he or
she (1) belongs to the protected
class; (2) was qualified and sought the
position; (3) suffered an adverse action;
and (4) either was replaced by someone
outside of the class or was treated
differently from similarly situated
members of the class.
Once a prima
facie case is established, the burden
shifts to the employer to articulate a
legitimate nondiscriminatory reason for
the employee’s discharge.
|
| NONPUBLISHED
DECISIONS FROM KY COURT OF APPEALS FOR
6/10/2005 |
2004-CA-000866.pdf
Judge: DYCHE
AFFIRMING
Date: 6/10/2005
|
DEWITT
V. BALL
BUSINESS LAW - Fact Based Contract Dispute
This case was a stinker
over a contract to install a septic system
and the buyer stiffed the contractor even
though passed inspection. Contractor
sues, has bench trial, wins. |
2003-CA-002327.pdf
Judge: VANMETER
AFFIRMING
Date: 6/10/2005
|
FAULKNER
V. COX
CIVIL PROCEDURE - Statute of Limitations
(Legal Negligence)
This was a legal malpractice claim
against a criminal defense attorney
following a dismissal of the RCr 11.42
proceeding. However the malpractice
action was filed a tad late - SIX years
after the hearing. SOL was 1 year. |
2004-CA-001173.pdf
Judge: 19
Date: 6/10/2005
|
POTTER
V. POTTER
CIVIL PROCEDURE - Law of the Case (Probate
Proceedings)
Applying the 'law of the case'
doctrine, the COA affirmed circuit court
sitting as appellate court which was
correct in reversing the district court's
decision after refusing to follow a prior
circuit court ruling on the property
division. |
2003-CA-001005.pdf
Judge: JOHNSON
AFFIRMING
Date: 6/10/2005
|
CARPENTER
V. COM
CRIMINAL - Interstate Compact on Detainers;
Speedy Trial
This appeal addressed the lodging of a
detainer which is the triggering event for
bringing the Interstate Compact on
Detainers requirement for a speedy trial
and the waiver of a speedy trial by the
defendant and/or the defense counsel.
|
2004-CA-001380.pdf
Judge: KNOPF
VACATING AND REMANDING
Date: 6/10/2005
|
HODGE
V. COM
CRIMINAL - 11.42 (Counsel's duty to
investigate)
The record on appeal did not clearly
refute the allegation of ineffective
assistance of counsel. Counsel has a
duty to conduct a reasonable investigation
into the facts and law bearing on the
client's case, and the COA agreed with the
defendant that a reasonable investigation
would have revealed proof of the
defendant's prior convictions was
apparently lacking. Counsel
erred by failing to discover these
irregularities and by advising the
defendant to plead guilty before they had
been addressed. |
2004-CA-001769.pdf
Judge: HENRY
AFFIRMING
Date: 6/10/2005
|
HOUP
V. COM
CRIMINAL - 11.42 denied
Defendant's claim of ineffective
assistance of counsel in motion for relief
under RCr 11.42 was without merit and
denied. The guilty plea was made
intelligently, freely, voluntarily, and
with full knowledge of the possible
defenses and constitutional rights.
Defendant also had expressed satisfaction
with the representation and advice
afforded him by counsel. |
2004-CA-001104.pdf
Judge: VANMETER
AFFIRMING
Date: 6/10/2005
|
HUGHES
V. COM
CRIMINAL - Failure to preserve
issues for appeal
Issues were not raised at trial, and
therefore failed to preserve for appellate
review. |
2003-CA-001843.pdf
Judge: SCHRODER
REVERSING
Date: 6/10/2005
|
MCBRIDE
V. COM
CRIMINAL - Sex Offender Registry
Conviction was reversed since the
appellant/defendant was not given
notice of his duty to register as a sex
offender in Kentucky as required by due
process and KRS 17.510(6). |
2004-CA-000674.pdf
Judge: MINTON
AFFIRMING
Date: 6/10/2005
|
MCINTOSH
V. COM
CRIMINAL - 11.42 MOTION DENIED
Counsel’s decision to advise McIntosh to plead guilty and accept a seven and a half year sentence
did not amount to ineffective assistance. Rather,
this was considered sound trial strategy to protect McIntosh from the exposure to the potential for much longer imprisonment. |
2003-CA-001400.pdf
Judge: DYCHE
AFFIRMING
Date: 6/10/2005
|
EMERSON
V. LAFAVORS
FAMILY LAW - Support (Emancipation)
No error found in the family court’s determination that, pursuant to the standards enunciated in Whicker v. Whicker, 711 S.W.2d 857 (1986), and its progeny, the parties agreed that
father would continue to pay $100 per week once the older child was emancipated. |
2003-CA-002408.pdf
Judge: HENRY
VACATING AND REMANDING
Date: 6/10/2005
|
SETTLOW
V. SETTLOW
FAMILY LAW - Hearings and Oral Argument
In Kelley v. Fedde, 64 S.W.3d 812 (Ky. 2002), the Kentucky Supreme Court held that CR 53.06 requires the trial court to afford parties an opportunity for oral argument before ruling on objections to a domestic relations commissioner’s report. Specifically, the Supreme Court concluded that "while a full-blown evidentiary hearing is not contemplated by the rule, the parties must be afforded an opportunity for oral argument." Id., citing Haley v. Haley, 573 S.W.2d 354 (Ky.App. 1978).
Accordingly, the trial court was in error here in failing to afford the parties an opportunity for oral argument pursuant to CR 53.06(2) when objections to the special domestic relations commissioner’s report were timely
filed.
|
2004-CA-000608.pdf
Judge: TAYLOR
VACATING AND REMANDING
Date: 6/10/2005
|
FRAILEY
V. COM
JUDGES - Functions, Paralegal, and Recusal
Odd case involving the judge's
paralegal answering the phone. The
COA held that anyone (lawyer and
non-lawyer) who is an officer of the
judicial system performing judicial
functions is a judge for purpose of
judicial code of conduct so that it was
error for judge's paralegal to receive
telephone call from the defendant, then
testify at trial regarding the content of
that call. Furthermore, the judge
should have recused himself before hearing
the case.
|
2004-CA-000942.pdf
Judge: HUDDLESTON
AFFIRMING
Date: 6/10/2005
|
JUSTICE
V. CECIL
TORTS - Negligence (Causation, Possession
of drugs)
Affirmed summary judgment dismissing
personal injury complaint against driver
since there was no evidence that his abuse
of Oxycontin played any role in the
accident. |
2004-CA-001884.pdf
Judge: KNOPF
REVERSING AND REMANDING
Date: 6/10/2005
|
KENTUCKY
FARM BUREAU MUT. INS. CO.
V. DAVIS
TORT - Defenses (Workers Compensation
Exclusive Remedy)
This appeal involved the exclusive
remedy provisions under the Workers
Compensation Act as a defense to a tort
suit against a co-employee. The trial court ruled that Davis was not acting within the course of her employment at the time of the accident and thus that the Workers Compensation Act did not bar Durfee’s suit.
KFBM contends that the trial court applied the wrong test to determine whether Davis was acting as an employee and that the correct test yields a contrary result.
COA agreed and reversed and
remanded.
As KFB points out, however, in Jackson v. Hutchinson, the former Court of Appeals adopted the regular workers’ compensation course of employment standard for determining fellow-employee immunity. The court stated:
A test of fellow-employee immunity is whether each of the employees involved would have been entitled to workmen’s compensation benefits for any disabling injury suffered in the accident.
COA agree with KFB that Davis would have been entitled to benefits for injuries suffered in the accident, and thus is immune from her fellow employee’s negligence suit. |
2004-CA-001807.pdf
Judge: JOHNSON
AFFIRMING
Date: 6/10/2005
|
BAKER
V. WAL-MART STORES
WORKERS COMP - Triple Multiplier
The claimant worked as a butcher and
grocery stocker at Wal-Mart. He
slipped and fell, injuring his low back,
which resulted in a low back fusion.
He had limitations of lifting, but
Wal-Mart accommodated his restrictions,
and put him back to work at a slightly
higher wage than before the injury. The
Administrative Law Judge ruled that he was
not entitled to receive the triple
multiplier of benefits, pursuant to KRS
342.730(1)(c)(2), because he was making
the same or better wages as when he was
working. The claimant appealed,
arguing that the triple-multiplier applies
when the claimnt cannot perform the duties
of the job he was performing at the time
of the injury. Citing Adkins v. Pike
Co. Bd. of Education, 141 SW3d 387 (Ky.
App., 2004), the Court affirmed, finding
substantial evidence that the claimant
would be able to continue earning the same
or greater wages as prior to the injury.
In those cases where both the multiplier
and the straight impairment rating benefit
could apply, the judge must choose based
on whether he thinks the claimant will
continue to be able to make the higher
wage into the indefinite future.
|
2004-CA-001154.pdf
Judge: JOHNSON
AFFIRMING
Date: 6/10/2005
|
GARNETT
V. CALVARY COAL CO.
WORKERS COMP - Substantial Evidence
The Board reversed the ALJ's finding of
total disability on the basis that the ALJ
based his decision, in part, on an
impairment rating for an injury to the
dominant hand. The Board concluded
that the ALJ thought that the claimant's
hand injury was to his dominant hand.
However, the evidence was that the
claimant was left handed, and it was his
right hand which was injured in an
acetylene tank explosion. The Board
remanded for a consideration of whether
the claimant's injuries (he suffered burns
on his face and hands, as well as
psychological injuries) totally disabled
him even though this was his non-dominant
hand. The Court of Appeals affirmed.
It is interesting to note that the
Board, and Court of Appeals, did not apply
the substantial evidence test to the ALJ's
opinion here. There was probably
sufficient other evidence to support a
total disability. The Court of
Appeals applied the deferential Western
Baptist Hospital test, which holds that if
the Board has not made an error in
assessing the evidence so flagrant as to
cause gross injustice, the Court will not
disturb the Board¹s decision. On
the other hand, it is doubtful that the
ALJ in this case really didn't know that
the claimant was a southpaw. |
2004-CA-002537.pdf
Judge: HENRY
AFFIRMING
Date: 6/10/2005
|
TURNER
V. APOLLO FUELS, INC.
CONSTITUTIONAL LAW - Notice to Attorney
General
WORKERS COMP
The notice requirement under KRS
418.075 and KRCP 24.03 applies to a challenge to the constitutionality of a statute or regulation, is mandatory, and is to be strictly enforced. Homestead Nursing Home v. Parker, 86 S.W.3d 424, 425, n. 1 (Ky.App. 1999); citing Maney v. Mary Chiles Hospital, 785 S.W.2d 480 (Ky. 1990). |
