PUBLISHED DECISIONS OF THE KENTUCKY COURT OF APPEALS FOR 8/5/2005

Appellants filed suit in Franklin Circuit Court challenging KRS 189.456, which requires county clerks to charge $8 for “accessible parking placards” on the grounds that the fee limited disabled persons’ access to public facilities. The circuit court granted summary judgment to the appellees based on sovereign immunity. This appeal followed.

The Court of Appeals (COA) upheld the circuit court’s determination that the DMV Commissioner and State Treasurer were not proper parties to the action because they neither collected or administered the fees and had nothing to do the fees or placards. Next, the COA held that the county clerks were not afforded 11^th Amendment sovereign immunity because the “judgment sought would not expend itself on the public treasury…or interfere with public administration,” the standard set by the Supreme Court in Pennhurst  v, Halderman, 465 US 89.

The COA also overturned the circuit court’s ruling that the Appellant’s claims were barred by the 10^th Amendment, adopting the reasoning in Hicks (116 F.Supp.2d 287), where a federal district court which addressed the interplay between the Americans with Disabilities Act and the 10^th Amendment.

Lastly, the COA directed the circuit court to address on remand the threshold issue whether, under 28 CFR 35.130(f), the statute imposed a “permissible fee” or an “unlawful surcharge.”  A finding of the former would end the case, while the latter would require the circuit court to determine whether Franklin County was the appropriate venue or whether individual claims would have to be brought against each county clerk in the county where their duties are performed.

CA reverses and remands TC dismissal of negligence claims against sheriff based upon sovereign immunity. 

Two troopers chasing suspect on foot were struck by deputy sheriff driving his patrol car. They sued deputy and sheriff, individually and in their official capacities. TC dismissed claims against them in their official capacities based upon sovereign immunity and determined that additional facts were needed on the individual claims. 

CA holds that KRS 70.040 waives a sheriff's sovereign immunity for negligent acts of his deputies.  

CA affirms dismissal of pro se appellant's legal malpractice action.

In 1999, upon advice of counsel, appellant entered guilty plea to assault in the first and was sentenced to 10 years. As part of the plea a PFO 2d charge was dismissed. A conviction on both counts would've meant no probation, shock, CD or parole and a life sentence.

Appellant was, however, unhappy with his 10 years and sued his counsel. TC dismissed the action as time-barred. Appellant responded that his unresolved habeas corpus petition should be considered as an appeal that tolls the SOL on his legal malpractice claim. CA holds, however, that that reasoning would make SOLs meaningless as there are no time limits on filing writs of habeas corpus.

UN-PUBLISHED DECISIONS OF THE KENTUCKY COURT OF APPEALS FOR 8/5/2005

CA upheld TC's denial of Helton's Motion to Vacate his Convictions for First-Degree Rape pursuant to CR 60.02.  In a nutshell, 20 years is an unreasonable amount of time to delay in bringing such a motion. 

CA affirmed TC's denial of Pendergraft's motion to return personal property seized by a sheriff without a warrant.  A local sheriff accompanied a friend of Pendergraft to Pendergraft's residence to retrieve some of the friend's belongings.  In the process, the sheriff and friend took a lock-out kit (used to gain entry to locked automobiles).  Pendergraft later pleaded guilty to unrelated child-abuse charges and was sentenced to prison.  He then filed a motion with the TC to return his lock-out kit.  Without making any factual findings, the TC denied the motion.  CA affirmed but stated that the TC must make factual findings if the issue is revisited. 

CA affirmed McLevain's convictions for Trafficking in a Controlled Substance (Meth) and related offenses.  The primary issues on appeal were whether the TC erred in denying the motion to suppress the drug evidence, the mistrial motion, and the motion for a directed verdict of acquittal.  Substantial evidence supported the TC's findings on the suppression issue.  The sheriff's warrantless search of the backpack was proper under all exceptions to the warrant requirement.  There was no abuse of discretion in denying the motions for mistrial and directed verdict.     

Held substantial evidence to deny claim for disability.

In a case involving work-place sexual harassment, Slone claimed she was sexually harassed during a portion of that time by a permanent coworker, Dwayne Covey. 

Slone recalled that Covey next poked her “in the butt” with a wooden tool shaped like a short mop handle. Slone further stated that subsequently, perhaps in late February, “Covey walked by and patted” her on the buttocks.

Covey was terminated from his employment as a result of the investigation, and Slone continued working as a temporary employee until she slipped and suffered a work-related injury in October 2

Sexual harassment by a coworker violates Title VII only if “the employer knew or should have known of the harassment and failed to take action.” 

Moreover, “[c]laims of discriminatory workplace harassment are rarely summarily dismissed where there is any colorable evidence of such harassment.”

Employer Toyota's position that Slone’s immediate supervisors were not previously aware of any sexual harassment stands in marked contrast to Slone’s testimony that, on several occasions, she complained to her supervisors about Covey’s harassment of her, but no prompt and immediate corrective action followed.

It follows, therefore, that the trial court erred by entering summary judgment as to the issue of liability. 

However, her allegations simply do not support a prima facie case of retaliation since none of the alleged retaliatory actions could be construed as amounting to an adverse employment action as defined in Brooks. It follows, therefore, that the trial court did not err by finding that TMMK was entitled to summary judgment in regard to the retaliation claim.

After the Executor filed his inventory, two beneficiaries of the estate
alleged that he had not reported all of the estate's assets and that he
had made gifts to himself during the decedent's lifetime. The District
Court ordered the accounting over the Executor's objection. The Executor
sought a writ of prohibition in Circuit Court, but that court denied the
Executor's petition. In the meantime, the two beneficiaries filed an
"adversary proceeding" in Circuit Court. The issue presented to the
Court of Appeals was whether the District Court had jurisdiction of this
controversy before the adversary proceeding was filed. Even thought the
Attorney General asked the Court of Appeals to decide the matter because
it fit the "capable of repetition yet evading review" exception to the
mootness doctrine, the Court of Appeals dismissed the appeal because the
beneficiaries were going to get their accounting regardless of its
decision. Interestingly, the Court of Appeals noted the difficulty of
defining an "adversary proceeding." It is too bad that the circumstances
didn't require it to go further and provide some guidance on this thorny
issue of Kentucky law.

In January of 2002, Appellant’s ex-wife brought charges of flagrant non-support and harassing communications in the Graves District Court.  
The Appellant erroneously believes that Kentucky law does not impose a duty on him since he is a Tennessee resident. 

Subsection (2) of KRS 530.050 imposes a duty upon the parents of minor children to provide support when ordered to do so by a court. Subsection (2) does not mandate that the order must originate from a Kentucky court. The failure to comply with an order from any court imposing an obligation to support a child found within the jurisdictional boundaries of the 
Commonwealth of Kentucky is a violation of Kentucky law.

In a case of first impression, the COA held a party may not engage in 
unlimited discovery regarding child support in a divorce proceeding after a decree has been entered, without first filing a motion to modify the child support award.

The circuit court should have declined to permit discovery until Jennifer properly presented her request for a modification of child support under KRS 403.213 and that the court erred in granting the discovery.

Husband makes 5 arguments against TC findings/ruling on maintenance.  #1 TC did not make specific findings of fact to award maintenance.  CA felt that TC made enough findings to affirm.  #2  TC erred in the maintenance amount by not making specific findings.  CA says specific findings not required by KRS403.200

In a fact based decision, the COA concluded the family court’s decision to deny  father's motion to modify custody is not clearly erroneous.

Jerry Wells appealed decision of the Workers Compensation Board affirming the denial of his claim for reopening due to a worsening of a work-related injury. The Administrative Law Judge (ALJ) held that Wells had not demonstrated by comparative evidence that his condition had actually worsened. Wells appealed, arguing that the ALJ's conclusion was unreasonable in light of the evidence. COA disagreed, and affirmed.

Based on the medical records and reports submitted, the ALJ found no evidence of a greater level of occupational disability. 

Affirmed dismissal of worker's claim  as there is sufficient evidence before the ALJ for findings of fact and there was substantial probative and material evidence to support his conclusion that the contract of hire was made in Indiana not Kentucky. See Eck Miller Transportation Corp. v. Wagers, 833 S.W.2d 854, 858 (Ky.App. 1992).