from www.KentuckyLawBlog.com

Held KRS 337.385, the more specific statute, takes precedence over KRS 337.310, the general statute, whenever an employee, or the commissioner on employee's behalf, chooses to exercise the judicial remedy for recovery of unpaid wages and circuit court has jurisdiction over wage and hour dispute.

A party wishing to appeal an AOC personnel action may file such appeal in either the Franklin Circuit Court or the circuit court of the county in which that party resides or operates a place of business. In reviewing the ADC's action, the circuit court shall sit without a jury, shall be confined to the record unless there has been fraud or misconduct, shall not substitute its judgment for that of the AOC as to the weight of the evidence on questions of fact, and shall be limited to affirming the order or reversing it and remanding the action for further administrative proceedings, in accordance with KRS 1313.150.
 

In a dispute over a breach of promise to make a loan, the SC found the contract did not provide an express time of the essence provision and there was no modification of the contract thereafter in compliance with the statute of frauds extending the closing date.  Therefore, the original date was not extended and summary judgment dismissing the claim in favor of the bank was reinstated.

Trial court's judgment was reinstated.  Trial court had ruled that criminal defendants must be advised regarding direct but not collateral consequences of a guilty plea. It reasoned that since a federal civil immigration proceeding such as a deportation is clearly collateral as to guilt and outside the trial court's control or responsibility, failure of defense counsel to advise Appellee of potential deportation consequences is not cognizable as a claim for ineffective counsel.

Government appeal, and COA reversed.

The imposition of punishment is the very purpose of virtually all criminal proceedings. The presence of a punitive motivation, therefore, does not provide an adequate basis for distinguishing governmental action that is fully justified as a legitimate response to perceived criminal conduct from governmental action that is an impermissible response to non-criminal, protected activity. Motives are complex and difficult to prove.


As a result, in certain cases in which action detrimental to the defendant has been taken after the exercise of a legal right, the court has found it necessary to `presume' an improper vindictive motive. Given the severity of such a presumption, however - - which may operate in the absence of any proof of an improper motive and thus may block a legitimate response to criminal conduct - - the court has done so only in cases in which a reasonable likelihood of vindictiveness exists." United States v. Goodwin, 457 U.S. 368, 373 102 S.Ct. 2485, 2489 73 L.Ed.2d 74 (1982).

"There is good reason to be cautious before adopting an inflexible presumption of prosecutorial vindictiveness in a pretrial setting. In the course of preparing a case for trial, the prosecutor may uncover additional information that suggests a basis for further prosecution or he simply may come to realize that information possessed by the state has a broader significance." 


The prosecution has an obligation to the Commonwealth to properly charge and convict persons guilty of criminal conduct as defined in our Kentucky Statutes. Adding an additional felony charge, which was appropriate under the facts, in order to support the charge of PFO, was its job; otherwise the addition of the PFO charge would not be supportable. This is not evidence of a "vindictive motive," nor is the timing of the addition.

Appellant, Philip Lanham, was convicted of murdering his wife and tampering with physical evidence of his crime. He was sentenced to life in prison. His appeal claims that the trial court erred in allowing the jury to hear an unedited recording of his confession wherein a police officer repeatedly accused him of lying, in admitting inflammatory entries from the victim's diary, and in refusing to grant him a new trial based on prejudice stemming from the actions of the victim's family in the courtroom.  

Convictions were affirmed as the officer's comments were necessary to provide context for Appellant's response, and because Appellant's other claims that were preserved for our review were not prejudicial.

An objection made prior to trial will not be treated in the appellate court as raising any question for review which is not strictly within the scope of the objection as made, both as to the matter objected to and as to the grounds of the objection. It must appear that the question was fairly brought to the attention of the trial court.... One claiming error may not rely on a broad ruling and thereafter fail to object specifically to the matter complained of.

McPherson was convicted of multiple counts of Sexual Abuse in the First Degree and was sentenced to 20 years in prison.  During jury selection, he objected to the prosecution's use of 8 of 9 peremptory strikes on prospective jurors who were male.  TC asked the prosecutor for his reasons underlying the strikes and concluded that they were non-pretextual.  Also, McPherson objected to the prosecution's post-trial motion to amend the indictment to change the offense dates.  The amendment pinpointed the exact dates of the offenses based on the victim's testimony, which fell within the range of dates originally listed in the indictment.  TC allowed the amendment over McPherson's objection.  SC held that the trial judge's finding that the prosecution's use of peremptories was non-pretextual was deserving of deference.  It distinguished Miller-El v. Dretke, 125 S.Ct. 2317 (2005) in which the U.S. Supreme Court decided that a trial judge's finding of race-neutral use of peremptories was incorrect because of strong circumstantial evidence of the prosecution's systematic efforts to exclude minorities from juries in various trials within the relevant judicial district.  SC also held that McPherson was not prejudiced by the amendment of the indictment to pinpoint the offense dates because the motion was made during a bench conference out of the jury's presence.  Furthermore, there was no evidence in the record that the jury was aware of the amendment.  

Editor's note:  The SC opinion refers to post-trial amendment of the indictment which would logically suggest a post-verdict amendment.  However, the opinion cites facts that also suggest the prosecution's amendment occurred before a verdict was rendered.  This distinction is important because the Rules of Criminal Procedure (RCr 6.16) mention that amendment is generally permissible "prior to verdict."           

The SC affirms the CA ruling affirming the TC judgment awarding $100,100 to appellees for a negligence claim. (Fayette Cir. Ct.)

80-year-old appellee went to Central Baptist Hospital to have blood drawn per doctor's orders. Phlebotomist placed a tourniquet and left patient unsupervised for approximately 10 minutes to answer a phone call. Appellee claimed complications, including nerve damage.

Three weeks before trial, Central Baptist moved for SJ, arguing appellees failed to name an expert phlebotomist to testify as to standard of care. At a hearing on the matter, appellees' counsel argued their claim was ordinary negligence since phlebotomists are not licensed or regulated in Kentucky. TC held that expert testimony was necessary, but that since this was somewhat of a novel issue, she allowed appellees a 30-day continuance to ID an expert. Appellees presented expert testimony and the jury awarded $154,000, less 35% comparative fault.

The SC found no abuse of discretion in allowing appellees a continuance to identify an expert witness in the case. Further, evidence of collateral source payments or contractual allowances was properly withheld from the jury.

Criminal defendant claiming double jeopardy petitioned for a writ prohibiting the judge from submitting the death penalty as a possible punishment at his retrial, scheduled to begin August 25, 2005, in the Fayette Circuit Court. Petition denied by Supremes.

The Ky Supreme Court recently noted that double jeopardy is an appropriate subject for a writ of prohibition . St. Clair v. Roark, 10 S .W.3d 482, 485 (Ky. 2000).

In Commonwealth v. Eldred , the SC held that the Commonwealth was not precluded from seeking the death penalty on retrial if, in the original sentencing phase, the jury had indicated in writing the finding of an aggravating circumstance beyond a reasonable doubt, even though it did not choose to impose the death penalty. 

Although recognizing the implied acquittal exception under which a defendant convicted of a lesser-degree offense cannot be convicted on retrial of a higher-degree offense, Green v. United States, 355 U.S . 184, 78 S.Ct. 221, 2 L . Ed . 2d 199 (1957), the Eldred opinion noted that such exception is a poor fit with Kentucky's capital sentencing procedure.

In a hit-and-run, multiple car accident, the Supreme Court followed the majority rule which held that where an unknown hit-and-run motorist strikes a third vehicle, which in turn strikes the insured vehicle, there is "actual physical contact" within the meaning of the contractual requirements contained in an uninsured motorist policy.

[W]here there has been no actual physical contact between the hit-and run vehicle itself and either the insured vehicle or the intermediate vehicle, the "physical contact" requirement of the hit-and-run clause of the uninsured motorist policy under consideration in this case has not been met.

The UM statute, KRS 304.20-020, does not require insurers to provide coverage for hit-and-run accidents. Jeff v. Doe, 551 S.W.2d 221, 222-23 (Ky. 1977).

This case involves the registration and enforceability of a Texas judgment as a "foreign judgment" under the Uniform Enforcement of Foreign Judgments Act (UEFJA), KRS 426.950-426.975. Appellant Harold and Appellee Shannon, married in Texas in 1998, and moved thereafter to Kentucky, where they purchased property.  Shannon remained in Kentucky until July 15, 2000, when she relocated to Texas and filed an original Petition for Divorce in Texas.

The United States Supreme Court has held a state cannot assert in personam jurisdiction over a defendant unless that defendant was personally served with process in that state, or voluntarily appeared before the court.  Once it has been decided that a defendant (eg., in this case it would have been the husband) purposefully established minimum contacts within the forum State, these contacts may be considered in light of other factors to determine whether the assertion of personal jurisdiction would comport with `fair play and substantial justice."'

SC rejected Appellee Shannon's argument that Appellant Harold waived his right to contest Texas jurisdiction by failing to raise this issue before the Texas court. Because the Texas court lacked personal jurisdiction over Appellant, it is irrelevant to us whether or not Appellant preserved this issue before the Texas court. Even if the state of Texas has a waiver provision regarding jurisdiction, this Court would not be bound by such a provision.

SC found the designation of 28 seconds of the videotaped trial record regarding ownership of the account a legally sufficient designation under Cr 75.01.

The issue was what effect does the commitment of a minor child of divorced parents to the custody of a state agency have on the child support obligation of the non-custodial parent, particularly when the agency is mandated by statute to collect child support from the child's parents?

The obligor father cannot not avoid his responsibility to pay child support based on the "mere possibility" that the Division of Youth might seek reimbursement for costs incurred as a result of the child's placement.

On the basis of the evidence presented in this case, the trial court erred in increasing Rodney's child support obligation to a sum in excess of $104.40 (the guidelines figure for the support of one child). If the Department of Juvenile Justice has since obtained child support from Rodney pursuant to KRS 610.170, his child support obligation to Stacy should have been recalculated in accordance with KRS 403.212(6).  Accordingly, SC reversed the Court of Appeals and remanded this case to receive any additional evidence and take any further legally authorized action deemed appropriate and in accordance with the content of this opinion.

In Kentucky, liens are created by statute, and therefore the operation, extent, and rights created by the lien must be determined by the language of the statute. "Kentucky adheres to the rule that the statutory provisions for perfecting a lien must be strictly followed." Laferty v. Wickes Lumber Company, 708 S.W.2d 107, 108 (Ky. App. 1986) (construing mechanic's lien statutes). Moreover, this Court has specifically rejected arguments that the lien statutes should be liberally construed: "While it may be argued that the mechanic's lien statutes may be liberally construed, we recognize... that the better rule is to require strict adherence to the statutory provisions for perfecting a lien." Middletown Engineering Company v. Main Street Realty, Inc., 839 S.W.2d 274, 276-77 (Ky. 1992) (construing mechanic's lien statutes). KRS 376.250(4) clearly and unequivocally states that a lien is "automatically released" if the procedural requirements are not met. In Jim Skaggs, Inc. v. Smith, 799 S.W.2d 585 (Ky. App. 1990), a general contractor filed its written protest two days after the KRS 376.250(2) deadline, though the matter proceeded nonetheless and the contractor was permitted to present defenses to summary judgment on the merits. 

The Court of Appeals determined that all of the contractor's defenses were precluded by its failure to strictly comply with the statute's time limitations. See also In re Excel Engineering, Inc., 224 B.R. 582 (Bankr. W.D. Ky. 1998) (subcontractor's failure to strictly comply with requirements of KRS 376.250 by filing complaint two days late was fatal to its claim that a valid lien existed). Therefore, as Surfpac failed to timely serve its complaint on MSD, the lien was automatically released as of June 28, 1994. The fact that the action proceeded does not operate to waive the requirement or somehow resurrect the lien. Thus, 3D was entitled to the $184,214.28 lien amount on June 28, 1994. Accordingly, SC need not address 3D's additional arguments regarding the validity of the lien, as that the lien was released prior to both the settlement agreement and the dismissal of Surfpac's lien action.

SC found the terms of the MSD/3D settlement agreement to be clear and unambiguous.

This case arose from employee serving alcohol to a 19 year old and the claim against the lodge for negligent supervision of the employee.

The Court of Appeals had concluded that the Grand Aerie could be liable to the Carneyhans for its own negligent supervision, reversed the partial summary judgment, and remanded the case for further proceedings against the Grand Aerie. SC granted discretionary review and now reverse the Court of Appeals and reinstate the summary judgment of the Trigg Circuit Court.

As for actions based on the direct negligence of the employer, as long as the complaint generally alleges an employer's negligence, it does not have to individually identify the employees upon whose negligence the employer's liability is based. Otherwise, the plaintiff must allege that the defendant knew or had reason to know of the employee's harmful propensities; that the employee injured the plaintiff; and that the hiring, supervision, or retention of such an employee proximately caused the plaintiff's injuries.

Held the Carneyhans' complaint sufficiently alleged a theory of negligent supervision. The complaint alleged that the Grand Aerie had reason to know of Aerie 4313's harmful propensities; indeed, Paragraphs VII and VIII of the complaint alleged that the Grand Aerie participated with Aerie 4313 in the ostensibly unlawful and negligent activities.

[The SC reverses and remands CA affirmation of SJ for the defense in this slip-and-fall case. (Fayette Cir. Ct.)

The 18-year-old appellant tripped over a concrete parking bumper while preparing to test drive a car on a car lot. The car had been parked somewhat at an angle in the space, blocking a direct view of the bumper and allowing it to protrude beyond the car's tire. As appellant rounded the vehicle admiring it, he tripped and injured his wrist. 

TC entered SJ for car lot, holding that the bumper was an "open and obvious" hazard, and as such the car lot had no duty to warn or otherwise protect its customers.   

Justice Cooper provides a detailed summary of "open and obvious" hazards in KY premises liability, concluding that this case is factually different from similar precedent and this hazard was not "known or obvious to" appellant b/c it had been "concealed" by a car lot employee.

The SC reverses the CA, reinstating a jury verdict for Kentucky Kingdom in its defamation suit against WHAS-TV. (Jefferson Cir. Ct.)

This case has garnered considerable press in Jefferson County over the years and the detailed facts are only briefly summarized here: On July 26, 1994, five passengers were injured when two cars of the "Starchaser" indoor roller coaster collided at Kentucky Kingdom. WHAS-TV broadcast reports in 1994 and 1996 saying, "State inspectors also think the ride is too dangerous;" that the coaster "malfunctioned;" and that "Kentucky Kingdom removed a key component."   At trial, Kentucky Kingdom purported to prove that all 3 statements were false and that WHAS-TV had made the statements knowing they were false or with reckless disregard as to whether they were false.  The TC instructed that the jury could impose liability based on the alleged defamatory nature of the statements "taken as a whole." The jury awarded $475K for lost profits; $1 mil for damage to reputation; and $2.5 mil in punitives.

The CA held that the "actual malice" requirement was met as to one statement, but not as to the others, and because the award did not differentiate, WHAS-TV was entitled to a new trial. SC holds that "This case is full of evidence from which the jury could conclude that WHAS-TV acted with actual malice." (E.g., airing one of the statements despite a producer's notation on the copy that its veracity was suspect.) SC disagreed with WHAS-TV that the statements were "substantially true" and that a jury instruction that defined "falsity" as "not substantially true" would be in contradiction to the bare bones approach used in KY jury instructions.

The SC reverses the CA ruling that jury instructions were inadequate, reinstating the TC defense verdict.

While working out at his gym, appellee felt pain in his right arm, went to soak in the pool. Some months later he reported a weightlifting jury. Subsequently he claimed he suffered the injury slipping at the gym's pool. At trial, appellee's counsel objected to the court's proposed jury instructions on the grounds that they only informed the jury about the general duty of ordinary care applicable in all negligence cases and did not instruct as to duties to inspect, take precautions, and warn. 

SC upholds KY's "bare bones" approach to jury instructions. Anything left out may be fleshed out by counsel in closing. The question to be considered on appeal is merely whether the instruction misstated the law.  

The claimant filed an application for benefits more than four years after the termination of voluntary income benefits following his injury. An Administrative Law Judge (ALJ) noted the claimant's credible testimony that he did not receive a letter informing him of his right to prosecute a claim or of the applicable statute of limitations but determined that the employer and Department of Workers' Claims had complied with KRS 342.040(1) and dismissed the claim. 

The claimant appealed, but the Workers' Compensation Board (Board) and the Court of Appeals rejected arguments that KRS 342.135 required the Department to use registered mail and that the evidence was insufficient to prove it had complied with KRS 342.040(1).  SC agreed with COA and WCB affirming the dismissal.

This appeal involved injured worker making a workers compensation claim AND a personal injury claim in circuit court for his injuries alleging that his fall was caused by negligent acts or omissions of Commonwealth. Intech intervened in the civil action to assert its statutory subrogation claim, KRS 342.700(1), but voluntarily dismissed its intervening complaint prior to trial.

The liability of the employer for the negligence of the independent contractor does not extend to the employees of the independent contractor.  The effect of this statute is to abolish the claims for lost wages and medical expenses of a person injured in an automobile accident against the person who caused the injury to the extent that basic reparations are payable therefor.  The injured person can assert a claim only for those damages which exceeded the amounts payable as basic reparation benefits.  If it elects to do so, the basic reparations obligor may intervene as the real party in interest to recover the sums payable by it as reparation benefits.
 

The ALJ may reject any testimony and believe or disbelieve various parts of the evidence regardless of whether it comes from the same witness or an adversarial party. Caudill v. Maloney's Discount Stores, 560 S.W.2d 15 (Ky. 1977). Certainly a party may submit evidence which would have supported a conclusion different from that of the AU but such evidence is not an adequate basis for reversal on appeal. McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974). In cases where medical evidence is conflicting, such as in this case, the sole authority to determine which witness to believe is with the ALJ. Pruitt v. Bugq Bros., 547 S.W.2d 123 (Ky. 1977).

Trial judge abused his discretion by denying defendant of his rights of due process and confrontation by refusing to allow him to introduce evidence establishing that key prosecution witnesses had received legal assistance from the Commonwealth. 

A criminal defendant has a constitutionally protected right to cross-examine witnesses in order to expose a potential bias or motivation in testifying. Turner v. Commmonwealth, 153 S.W.3d 823 (Ky. 2005) citing Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347, 354 (1974). He also has a right to put in evidence any fact which might show bias on the part of a witness who has testified against him. Adcock v. Commonwealth, 702 S.W.2d 440 (Ky. 1986).

SC found defendant offered absolutely no support for this contention in any of our previous case law, nor does he explain how the failure to warn a suspect that his voluntary statements may be used against him can be deemed an arbitrary exercise of power and dismissed the  argument as being completely without merit.

SC found no merit and rejected defendant's two assignments of error (1) improper denial of his motion for recusal, and (2) substantial prejudice arising from his appearance before the jury in shackles. 

In appeal as matter of right, COA and conviction affirmed after defendant  asserted six claims of reversible error, viz: (1) overruling his motion for directed verdict of acquittal; (2) overruling his motion for a mistrial after the prosecutor failed to introduce evidence supporting a portion of his penalty phase opening statement; (3) improperly restricting the voir dire questions asked by defense counsel; (4) permitting the prosecutor to ask a witness a question regarding Appellant's prior marijuana use without having provided pretrial notice; (5) rendering prejudicial guilt phase instructions; and (6) permitting the prosecutor to urge the jury to recommend a sentence greater than the statutory maximum.

COA affirmed.  Defendant failed to preserve issue pertaining to recalled juror.  For example,  trial judge did not err in ruling that the prosecution could introduce evidence that the accused pointed a gun at his mother shortly after the murder; whether the death penalty should have been excluded as a sanction for a hoax letter sent from the Commonwealth to defense counsel during pretrial discovery.

Multiple errors raised, but conviction still affirmed and trial judge did not err in ruling that the prosecution could introduce evidence that the accused pointed a gun at his mother shortly after the murder; whether the death penalty should have been excluded as a sanction for a hoax letter sent from the Commonwealth to defense counsel during pretrial discovery.

No error regarding motions to excuse two prospective juror of admitting evidence of other crimes.

Robbery conviction affirmed.  

It is sound legal principle that "[t]o be liable, the accused need not. . . actually participate in any. . . act of force or violence. . . . It is sufficient that he or she come and go with the robbers, is present when the robbery is committed, and acquiesces therein."  This view of liability articulated in Smith is neither novel nor in contradiction to the rules of our sister states.

No error in commonwealth playing an inaudible tape to the jury.  Nothing prevents a party from transcribing evidence presented at trial and repeating what was said to support its argument.

SC affirmed Lovett's convictions for Manufacturing Methamphetamine and PFO 2.  Primary issue was whether Lovett was prejudiced when one of Commonwealth's witnesses pleaded the Fifth Amendment during cross-examination.  Because Lovett did not seek to strike all or a portion of the witness's testimony, there was no available remedy on review. 

SC affirmed Roach's convictions for Murder and Criminal Abuse in the First Degree.  The errors cited on appeal were either unpreserved or were not palpable under RCr 10.26.

SC affirmed Sarver's convictions Trafficking in a Controlled Substance, Possession of Drug Paraphernalia, and PFO 1.  His claimed errors were not preserved for appellate review and were not palpable errors under RCr 10.26. 

SC affirmed Stewart's convictions for Second-Degree Manslaughter and Fourth-Degree Assault.  The primary issue on appeal was whether the TC correctly concluded that Stewart's confession (that was obtained after he had been arrested without probable cause) was sufficiently attenuated from his arrest to make it properly admissible at trial.  SC reviewed the record in light of the trial judge's factual findings and concluded that the confession was properly admitted.  Wilson v. Commonwealth, 37 S.W.3d 745 (Ky. 2001). 

SC affirmed Tillman's conviction for First-Degree Manslaughter.  The primary issue on appeal was whether the prosecutor's statements in closing argument regarding the reasons for the victim's family being absent from the trial required reversal.  Because the statements did not contain any incriminating evidence and were partially in response to the defense closing argument, reversal was not required.  But see Mack v. Commonwealth, 860 S.W.2d 275 (Ky. 1993).