On Moms appeal, CA found the following:

1.  The fact that legal title to marital property was assigned to Dads family trust did not eliminate Moms equitable share of the property. In Kentucky , a spouse is entitled to an equitable share of the property accumulated through joint efforts -- regardless of how the property is titled, categorized, or characterized.  Here, the joint efforts of the parties caused the marital interest in the property to increase in value. Mom was thus entitled to an equitable share of that increase -- as well as to a share of the increase in the equity attributable to a reduction of the mortgages on the property paid with marital funds.

2.  TC abused its discretion in improperly imputing income to Mom that was more than double her current earnings.  The court considered Moms age, poorish health, lack of education and marketing skills, as well as the limited market in Moms area for her usual work cleaning houses, as well as Dads solid and stable income.  CA ordered that on remand, TC should assess evidence concerning Moms abilities to meet her own needs without requiring that she exhaust her property in order to determine an award more reflective of the financial realities of their respective situations.

The Chief ALJ found that the claimant was totally disabled on re-opening.  The Workers' Comp Board reversed, finding that the the CALJ did not correctly consider the definition of total disability in her opinion.  The Court of appeals reversed the Board, finding that the CALJ's opinion correctly applied the law, and that there was substantial evidence to support a finding of total disability.  The CALJ's award was reinstated.

The trial court found that the terms of the contract at issue stated that Metropolitan shall review the Payment request and may also review the work at the Project Site. The court held that this language did not impose a duty on Metropolitan to review and approve work for which payment was requested.

CA affirmed Morrow's conviction for Robbery in the First Degree and his underlying sentence of 13 years.  The primary issue on appeal was whether the Commonwealth impermissibly struck a prospective juror on the basis of race.  CA held that the prosecutor gave a race-neutral explanation when questioned about his motivation for the strike.  Commonwealth v. Snodgrass, 831 S.W.2d 176 (Ky. 1992).  

CA reversed and remanded Smiddy's conviction for Trafficking in a Controlled Substance (Oxycontin) with instructions that a new trial be held.  The TC committed reversible error by giving the jury a trafficking instruction based on alternate theories of the evidence when one theory was clearly unsupported.  That is, the thrust of the Commonwealth's proof concerned Smiddy's trafficking in Oxycontin but the trafficking instruction asked jurors to find him guilty if there was sufficient evidence of trafficking in Oxycontin or Morphine.  Because the Commonwealth failed to introduce sufficient evidence that Smiddy possessed Morphine with intent to sell it, reversible error occurred with respect to the jury instructions.  Hayes v. Commonwealth, 625 S.W.2d 583 (Ky. 1981).

CA affirmed Smith's convictions for Second-Degree Assault and First-Degree Promotion of Contraband.  The primary issue on appeal was whether the ink pen that Smith used to stab another inmate in the face was a "dangerous instrument" for purposes of the Penal Code.  CA held that the evidence introduced at trial was sufficient to prove that the pen was a dangerous instrument under KRS 500.080.   

CA affirmed TC's denial of Taylor's CR 60.02 motion without a hearing stating that sufficient evidence existed in the record such that an evidentiary hearing was not necessary.  Sanders v. Commonwealth, 89 S.W.3d 380 (Ky. 2002).  

CA affirmed Williams' convictions for Reckless Homicide (three counts) and his underlying sentence of 15 years.  The case arose when Williams, who was hauling a 32-ton auger on his tractor-trailer, lost control of his vehicle.  The auger broke loose from his trailer and collided with oncoming traffic, killing three people.  There was also evidence that Williams had been speeding and had improperly secured the auger.  Based on extremely negative pretrial publicity, Williams moved for a change of venue.  TC denied the motion after an extensive voir dire.  CA held that TC did not abuse its discretion in denying the change of venue because Williams failed to show prejudice.  Stopher v. Commonwealth, 57 S.W.3d 787 (Ky. 2001).

Police officers suspension following DVO was not arbitrary.

CA affirmed TCs division of property and award of maintenance and attorneys fees, finding that TC considered the requisite statutory factors for the awards but was not required to make specific findings as to each, and the property award was not clearly erroneous.
 

No error in TCs decision that childs relocation with PRP Mom would result in serious damage to the child and thus transferring PRP status to Dad.

With regard to the total fees that may be levied, the procedures dictate that [n]o more than $600 shall be assessed in any case regardless of the number and length of hearings unless recommended by the circuit judge and approved by the Chief Justice for extraordinary circumstances.

Palimony claim rejected. Kentucky does not recognize common-law marriage and no contractual rights or obligations arise from mere cohabitation.  It has long been the law in Kentucky that [r]ecord title or legal title is an indicia sufficient to raise a presumption of true ownership.

Galen L. Clark and Ilea Mannering appeal from a judgment ordering partition of undivided real property as set porth in a 1992 agreement executed by their predecessor in title.  They argue that the agreement lacks necessary terms and is void.

COA agreed with the trial court that the agreement is enforceable and further that the parties are estopped from asserting rights to undivided ownership of the property. Hence, affirmed.

The trial court found that the various agreements, including the recorded agreement and minor plat, were sufficient writings to satisfy the requirements of the statute of frauds. 

The court further found that the parties to the agreement had exercised exclusive control and ownership over their assigned tracts, and as a result those parties and their successors are estopped from asserting rights to the undivided ownership of the entire premises.

Party claiming by adverse possession must have open, notorious, continuous, exclusive, hostile possession of the property to a well-marked boundary. A party cannot move the boundary out year after year and claim to that boundary in the fifteenth year.

The fact finder may choose between the conflicting opinions of the surveyors, or even accept some evidence and not other, as the trier of fact determines the credibility and the weight that is to be given the evidence. Lewis v. Bledsoe Surface Min. Co., 798 S.W.2d 459, 461 (Ky. 1990).

CA affirms TC entry of SJ for the defense on this outrage/IIED claim. 

The family of a high schooler killed in an auto collision sued one of his former teachers who allegedly told his home room students, teachers and others that he "would not be celebrating Jeromy's life but would celebrate his death" and that "he was nothing but a drug dealer and terrorist the whole time he was at Fleming County High School. He had no respect for me and I have none for him." The students staged a walkout and the teacher ultimately resigned.

CA holds that teacher is entitled to judgment as a matter of law because his actions were not directed at any of the plaintiffs, but only towards decedent. Further, even if the law allowed for their claim, they were not present when the alleged actions were committed.

CA reverses and remands judgment against Meenach for damages to Denlinger's timber cut by Hall. CA holds that Hall was an independent contractor for purposes of vicarious liability.

Hall asked Meenach if he could log on his land and give him a portion of the proceeds. Meenach agreed and showed Hall the general area, but didn't show him the boundary fence. Hall strayed into Denlinger's property. TC held Hall was an agent of Meenach. CA reverses, holding that Hall was to use his own discretion, tools and employees and that Meenach had a minimal role. Further there was no evidence of an intentional conversion to justify treble damages.

This appeal considers the validity of a guaranty agreement pursuant to KRS 371.065. As the guaranty agreement was written on the credit application being guaranteed, it was not required to contain language specifying maximum aggregate liability and termination date. 

Summary judgment reversed and remanded.

Appellant, Maxx Parts and Equipment Kentucky, Inc., (hereinafter Maxx Parts) is a business engaged in the sale at retail of parts and supplies for the repair and maintenance of heavy construction and mining equipment. 

Supreme Court has held, per the plain language of KRS 371.065, that a guaranty agreement which is written on the document being guaranteed is not required to state either maximum aggregate liability or a termination date.

The claimant discovered in 1995 that he had experienced hearing loss.  His lawyer at that time wrote to the employer and informed them that he had suffered a hearing loss while working for AK Steel.  The claimant filed a claim and the ALJ ruled that it was barred by the statute of limitations, because the date of onset was 1995, when the claimant exprienced a hearing loss which he was aware was caused by his work.  He argued on appeal that he had not been informed by a physician that his hearing loss was caused by his work, and the Board agreed.  The COA affirmed, holding that a person is not required to rely on the advice of his attorney that his injury is caused by work, and that the statute of limitations only begins to run in a hearing loss case when the claimant is aware of the injury and aware that it is caused by his work, based on a physicians advice.

The claimant had two injuries to his back, one at Indigo Bar and Bistro, and one at Barton House, a residential care community.  The ALJ apportioned liability for medical treatment equally between the two employers, and  Indigo appealed, arguing that it could not be held liable for TTD benefits, and asking for instructions on how to manage the payment of medical bills.  Basically it wanted to reimburse Barton House for one-half of the medical bills after it had paid them.  The Board reversed on the TTD issue, ordering that the employer whose injury cause the temorary disability is entitly liable for TTD payments.  It refused to address the method of payment.  The Coart of Appeals also held that the method of payment for medical bills should be brought to the Court by an enforcement action in circuit court, and affirmed on the issue of TTD.    

Their only issue on appeal is whether the Board erred in its finding as to the appropriate amount of death benefits payable. Kentucky Employers Mutual Insurance (KEMI) appeals from that same decision and presents a number of challenges based upon the Boards finding that it is responsible for paying a 30% enhancement of compensation pursuant to KRS 342.165(1)2 and KRS 342.3753 due to safety violations committed by its insured, Lodestar Energy, Inc. Upon review, AFFIRMED both appeals.

From a reading of KRS 342.750 as a whole, particularly the emphasis placed upon the limitations set forth by subsection (3), it is apparent that the General Assembly intended that on those occasions where the deceaseds average weekly wage, as calculated under KRS 342.140, exceeds the average weekly wage of the state, as determined in KRS 342.740, the latter figure is the base amount that should be used as the beginning point in the calculation of death benefits.

The ALJ found that Dixon was an independent contractor and dismissed his claim for workers compensation benefits as  aresult of an injury while working.  In a decision devoid of any facts, the Court of Appeals affirmed the Boards opinion affirming the ALJs finding.  The Court noted that the claimant did not file a petition for reconsideration of the ALJs opinion, and that limited the Boards ability to consider some of the nine factors used in determining the status of the claimant.

ALJ may reject any testimony and believe or disbelieve various parts of the evidence.  Same is true of medical evidence.  COA found no flagrant error in ALJ's assessing of evidence.