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Appeal followed condition guilty plea.  General consent for blood test for alcohol did not limit consent for drug testing.

Shane Harris was a secured creditor of PJ Doughboy, Inc., which owned a Papa John’s franchise in Russellville.  In 2003, Harris repossessed the secured assets and transferred them to LKS Pizza, a Pennsylvania corporation of which Harris was an officer. LKS Pizza began operating a Papa John’s franchise at the same location. 

The Finance Cabinet filed a complaint alleging LKS Pizza, the Appellant herein, was the business successor to PJ Doughboy and seeking delinquent sales tax pursuant to KRS 139.670 and 139.680.  The trial court granted summary judgment in favor of the Cabinet and this appeal followed.

In reversing, the Court of Appeals reviewed case law from other jurisdictions before holding that when a secured creditor acquires assets as a result of foreclosure un which no consideration changes hands, the creditor does not become liable for the debtor’s unpaid sales tax.

Where a bailment is created for the mutual benefit of the bailor and the bailee, the bailee is liable for loss or injury to property due to his failure to exercise ordinary care to safeguard the property. 

If, however, the bailment is gratuitous, one for the sole benefit of the bailor, the duty on the bailee is to exercise only slight care to preserve the property.

The claimant alleged hearing loss as a result of exposure to loud noise in the coal mime where he worked for 30 years.  He ceased working in 2000, and filed a claim in 2003, about a month after he learned from a doctor that his hearing loss was likely to have been caused by exposure to noise at work.  Since the last injurious exposure to noise occurred at that time, the Workers’ Compensation Board reversed the ALJ’s award, stating that the statute ran two years from the date of last exposure.  The Supreme Court applied the discovery rule, stating that in gradual injury or occupational disease cases, the statute of limitations does not begin to run until the claimant was informed that he had a work related injury, and he was not required to determine this for himself before being told by a doctor.
 

The Rockcastle Circuit Court entered an order stating that Appellee United Sign had complied with a previous order requiring removal of several billboards along I-75.  It was undisputed that United Sign had removed the signs themselves, but left standing the poles which supported the sign. The Transportation Cabinet appealed the order. 

The Court of Appeals vacated, citing the plain language of KRS 177.830(5).  Held: for purposes of the Kentucky Billboard Act, a billboard includes all structures supporting the sign, including poles.

When an issue has not been addressed in the order on appeal, there is nothing for us to review. This is the basis of the well-worn adage that an appellant may not feed one can of worms to the trial court and another to the appellate court.

Despite language in KRE 103(d)5 to the contrary, our Supreme Court had held that even when a trial court has previously ruled on the admissibility of evidence in a motion in limine, a contemporaneous objection is required to preserve an objection to specific evidence which is later admitted.
No contemporaneous objection was made to police officer's testimony.

This case dealt with fact-based questions regarding possession of methamphetamine precursors.

Denial of 11.42 regarding ineffective assistance of counsel.

CA affirmed TC's denial of Jennings' motion for a declaratory judgement regarding his good time credit.  Jennings was convicted of Sodomy in the Second Degree in May 2002.  KRS 197.045(4), the statute governing the award of good-time credit for sex offenders, was enacted in July 1998.  CA rejected Jennings' argument that the statute was an unconstitutional ex-post facto law as applied to him because it did not create a harsher punishment for him.  Martin v. Chandler, 122 S.W.3d 540 (Ky. 2003).

CA affirmed Nelson's convictions for Second Degree Burglary, Theft by Unlawfuling Takng over $300, and for being a persistent felon.  The evidence was sufficient to support his convictions for each offense. 

CA affirmed TC's denial of Phelps' 11.42 motion.  Phelps failed to meet his burden under Fraser v. Commonwealth, 59 S.W.3d 448 (Ky. 2001) that his counsel's performance was deficient and that the deficiency prejudiced him. 

CA held that Proctor was not entitled to have his conviction for PFO 1 vacated because the trial court simply failed to list in his judgment of conviction the sentences for the substantive offenses that the PFO conviction enhanced.  Case is distinguishable from Davis v. Manis, 812 S.W.2d 505 (Ky. 1991) in which Davis's PFO conviction was vacated because the jury never recommended a sentence for the underlying offense that the PFO count enhanced.  In Proctor's case, the jury did recommend sentences for the underlying offenses but the trial judge forgot to put them in the judgment.   

2004-CA-000465.pdf
Judge: MILLER
REVERSING
Date: 7/15/2005
NOT PUBLISHED

CLARK V. CLARK
FAMILY LAW - Child custody (PRC, Modification)

CA reviewed Mom’s appeal of TC’s tranferral of PRC status to Dad and its imposition of 180 days of incarceration for contempt.  Because Dad’s motion to modify custody was filed less than two years prior to the parties’ original custody decree, two affidavits were required in support of the motion.  Since Dad filed only one affidavit in support of his motion, CA held that the motion failed to vest subject matter jurisdiction of the issue in TC.  Though Mom did not raise this issue at TC level, which is normally required to preserve an issue for review on appeal, CA recognized that the question of subject matter jurisdiction may be raised at any time.

CA pointed out that the purpose behind TC’s criminal contempt power was to punish, whereas civil contempt’s purpose is to coerce.  The defining characteristic of civil contempt is the fact that contemnors must have the opportunity to purge themselves of contempt during their term of imprisonment.  CA held that the purpose of holding Mom in contempt was for the reason of compelling her into following the orders of the family court (primarily as concerns visitation) for the benefit of Dad.  Thus, TC should have allowed her an opportunity to purge herself of contempt, as, e.g., providing her assurance of future compliance with TC’s visitation orders. 

TC’s transfer of PRC status to Dad and imposition of 180 day sentence reversed.

2004-CA-001705.pdf
Judge: JOHNSON
VACATING AND REMANDING
Date: 7/15/2005

HAMILTON V. WASHINGTON
FAMILY LAW - 

Uncle appealed from TC’s order modifying a Pennsylvania custody decree and terminating Uncle’s visitation rights with his niece.  First, Uncle argued that he should have been named as a party to the action terminating his visitation rights by the filing of a new action or by naming him as a real party in interest.  Uncle failed to utilize the mechanism of CR 24.01 and CR 24.02  allowing an interested party to intervene by filing a motion in order to do so.  Uncle was nonetheless allowed to proceed in the action as though he were a party and received all relevant documentation during the pendency of the action and thus was not prejudiced in this regard. 

Next, Uncle complained that TC erred in modifying the custody order because it did not comply with KRS 403.340 and 403.350.  CA held that KRS 403.320 applies to modification of visitation orders, and that KRS 403.340 and KRS 403.350 apply to modifications of actual custody, and that TC had complied with KRS 403.320. 

Uncle’s third argument was that he had not been proper service or notice of TC’s hearing.  CA stated that a party appearing generally, rather than specifically, to a challenge exercise of personal jurisdiction cannot later argue that the court had no jurisdiction over him and that a defense of lack of personal jurisdiction is waived if not raised by motion or responsive pleading.  Because Uncle did not exercise this option, he waived this defense. 

Uncle next contested that TC should not have exercised jurisdiction to modify the Pennsylvania custody order.  CA stated that whether Kentucky may properly exercise jurisdiction must be evaluated through a three-part inquiry:  (1) does Kentucky have jurisdiction under Kentucky law; (2) do the Uniform Child Custody Jurisdiction Act (UCCJA) and the Parental Kidnapping Prevention Act (PKPA) allow Kentucky to exercise jurisdiction; and (3) is Kentucky the most appropriate forum?  As to the first part of the inquiry, for a Kentucky court to have jurisdiction in a child custody proceeding, it must have jurisdiction under the UCCJA.  If Kentucky is the child’s home state, or if it is in the best interests of the child for Kentucky to exercise jurisdiction because the child or one of the parties have a significant connection with Kentucky and there is substantial evidence of the child’s best interests located in Kentucky, then Kentucky will have UCCJA jurisdiciton.  Kentucky was not the home state of niece when the motion to terminate visitation was filed, but because both the child and Uncle were residents at the time of appeal, CA held that Kentucky had UCCJA jurisdiction under the substantial evidence prong. However, CA held that TC did not take the appropriate steps as to the second and third parts of the inquiry.  For the purposes of the UCCJA, where a lower court renders an adverse decision, an action is still pending in that state if it is before the appellate court; this applies if the time period in which the appeal must be filed has not run, regardless of whether the party has actually filed that appeal.  Uncle informed TC that Pennsylvania was still exercising jurisdiction over the matter.  UCCJA requires that a Kentucky court considering modification of another court’s decree must request copies of and consider the record in that other state, which TC failed to do.  Furthermore, KRS 403.460 allows a court to decline to exercise its jurisdiction if it finds that a court of another state is a more appropriate forum. In determining the most convenient forum, a court must consider the interests of the child, and it may take into account such factors as whether another state is or was recently the child’s home state, whether another state has a closer connection with the child and a contestant and/or the child’s family, and whether the parties have agreed upon another forum.  TC also failed to make findings in this regard.

Uncle’s last argument was that TC failed to make sufficient specific findings regarding the child’s best interests.  CA also agreed with this argument, holding that without a finding that a change in visitation is in the best interests of the child, based on any and all factors that are relevant to that determination, a court may not modify an order granting visitation.  TC in this case listed only the testimony of one counselor as the basis for its decision.  TC order vacated and matter remanded to TC.

CA affirms TC entry of SJ for Nationwide in recovering BRB from tortfeasor. (Jefferson Cir. Ct., Hon. Lisabeth Hughes Abramson, Judge, presiding).  

The tortfeasor was an Indiana resident. On appeal, he argues: 1) Nationwide cannot recover under the MVRA because he's a "secured person;" 2) as a nonresident, tortfeasor should be deemed to have opted out of the MVRA's tort limitations; and 3) the release signed in the settlement bars this claim. CA held that, under MVRA tortfeasor was not a secured person because he did not have all the coverages mandated by the MVRA and that he is not deemed to have opted out without a written rejection. His final argument was not raised below or preserved for appeal.

Case No. 01-CI-01247, Fayette Circuit Court, Hon. Thomas L. Clark

Li appeals TC’s entry of judgment on a jury verdict for Goodpaster on the grounds that the court erred in excluding evidence of a defense IME or, in the alternative, should have issued an adverse inference instruction based on Goodpaster’s failure to call the IME doctor as a trial witness.  Li also argues error in the court’s exclusion of evidence pedestrian yield sign at the accident site.

The lawsuit arose as a result of an auto accident involving Li on a bicycle and Goodpaster in a car in Lexington .  The defense contested the nature and extent of Li’s alleged personal injuries, which included a brain injury.  Goodpaster hired Dr. Douglas Ruth for an IME, who confirmed a brain injury.  Goodpaster did not disclose Dr. Ruth as a defense expert for trial, and apparently notified the court and Li that he did not intend to call him as a witness.  Li did not take Dr. Ruth’s deposition or seek to obtain his testimony for trial, but instead sought an adverse inference instruction.  The TC also ruled in limine that Li could not make reference to Dr. Ruth’s evaluation since he would not be called as a witness.

Held:  Any error committed by the TC in addressing Dr. Ruth’s IME was harmless.  The COA felt that the jury need not have considered the credibility of the parties alone (Li contended that evidence of Dr. Ruth’s opinions would have rehabilitated his in light of the defense’s attack) to rule in favor of the defendant given the eyewitness testimony to the effect that Li had darted out in front of Goodpaster just before the collision.  The COA also held that it was not error to exclude the pedestrian sign at trial since Li was riding a bicycle and therefore not considered a pedestrian.

This case dealt with the interpretation of a lease provision regarding a new ramp and apron serving the terminal building.

The claimant was working as roof bolter in a mine when he was injured by a piece of steel flying into his eye.  Surgery was performed, and eventually he returned to work as a roof bolter, although at a lesser wage and at another mine.  However, he could not perform some of the tasks of the job, such as welding.  He argued that he was entitled to a triple multiplier applied to his permanent partial disability benefit, but the ALJ found that welding was not an essential function of his job, as evidenced by the fact that he returned to a roof bolting job.  However, she applied the double multiplier because he had not returned to a job earning the same wage.  The Board reversed on the finding that the double multiplier applied, and affirmed on the finding that the triple multiplier did not apply.  The reason was that the claimant did not return to a job at the same wage as at the time of the  injury.  This is an exceedingly tight reading of the statute, and allows the employer to deny re-employment even for a day, and thus deny the application of the double multiplier.  The purpose of the double multiplier was to establish a compromise position between the triple, when an employee lacks the physical capacity to return to his employment, and the single, when an employee returns to work and has not lost earning power.  The Courts previously decided that even if an employee returns to work at a different job, making the same wages, she is not entitled to the double multiplier.  This required a liberal reading of the statute, but it was fair.  This case holds that if the employee does not return to a job making the same wage, and then drop to a job making a lesser wage, he is not entitled to the double multiplier.  They should apply the same, purpose driven construction in favor of the employee as well.