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Kentucky Law Blog.

• MONDAY: Kentucky Supreme Court and Court of Appeals day.
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he Cabinet for Health and Family Services  appealed an order of the Jefferson Family Court that required it to pay the court-appointed expert’s fees in a dependency action in which custody became a contested issue.   COA reversed the family court holding the lower court had abused its discretion when it appointed the expert without first adopting the show cause procedure required by KRE 706.  

In 2001, teacher, an employee of Fayette County Public School, was convicted on federal trespass charge for her part in an anti-war demonstration. The school superintendent denied the teacher’s request for a leave of absence to serve her 91-day prison sentence, and subsequently terminated her contract for insubordination when she did not show up for work. 

Upon the teacher’s administrative appeal, the tribunal issued an order reinstating the teacher, characterizing the insubordination as merely “technical” and criticizing the superintendent for not bringing the issue to the Board of Education for a decision originally. Furthermore, tribunal stated the superintendent had “impugned [the teacher’s] character and caused her to suffer unnecessary embarrassment and expense.”

The school board filed a complaint in circuit court. The teacher counterclaimed for due process violations and sought back pay for her period of incarceration. The circuit court upheld the tribunal’s decision as to the school board’s claim and dismissed the teacher’s claim as moot. This appeal followed.

The Court of Appeals upheld the tribunal’s decision. On the cross-appeal, in what the panel, in what it determined to be a case of first impression, held that a charge of insubordination against a teacher must be “supported by a ‘written record of teacher performance,’… specific to the individual teacher and the circumstances…”

Held the trial court correctly ruled as a matter of law that the one year statute of limitations had expired prior to the plaintiff filing the medical negligence action.   

Plaintiff had been treated with an antibiotic gentamicin for a foot infection in 1998, infection resolved but had some vestibular problems, spoke to an attorney about the infection and symptoms in September 1999, daughter learned about gentamicin and vestibular disturbances and referred father to Mississippi lawyer, and suit was filed in March 11, 2002.

"The [trialo] Court concludes as a matter of law that at least by that date, September, 1999, a reasonable person would be under the obligation to inquire as to the poor result from the gentamicin therapy which would include the medical care provided by Dr. Milum. The complaint in this case, filed March 11, 2002, was thus not timely."

The buyer of the property under a land contract was the equitable owner of the property and had the risk of loss in the event of a fire. See also 77 Am.Jur.2d Vendor and Purchaser § 371 (1997). Thus, Thurman holds the portion of insurance proceeds in excess of the amount owed to her in trust for the Esteses. See King, supra; Nat. Sec. Fire and Cas. Co. v. Miller, 394 So.2d 31, 32-33 (Ala. Civ. App. 1980); 44 Am.Jur.2d Insurance § 1508 (2003). The fact that Thurman paid the premiums for insurance and that the Esteses did not is of no consequence to our determination herein.

[corrected 10/3/2005]

Apex met this requirement.  However, in order to support an action, a party need only have a present and substantial interest in the matter in litigation. Winn v. First Bank of Irvington, 581 S.W.2d 21, 23 (Ky.App. 1978) (citing 59 Am.Jur.2d, Parties, § 28). That is to say, a party must have a real, direct, present and substantial right or interest in the subject matter of the controversy. Id.

Waived error by failing to object to dismissal of alternate who had been acquainted with one of the witnesses in the trial.

Denial of post-conviction relief pursuant to CR 60.02(e) and (f) was not improper.

Pro se appeal.  Claims should have been raised under RCr 11.42 and were therefore not timely.

Dealt with motion to suppress denied by trial court regarding warrantless search based upon entry of residence over safety of child and plain view upon entry.  Dissenting opinion not believe officers had reasonable  basis to believe child was in need of immediate aid.

Appointed counsel filed Anders v. California, 386 U.S. 738 (1967) appeal conceding no meritorious basis therefor, and COA upon reviewing record found no error in suppression hearing. 

Dealt with competency to stand trial and use of lay testimony and prosecutor's argument.  Mentioning the failure to present witnesses does not equate with the verboten comment on a defendant’s right to remain silent. See Maxie v. Commonwealth, 82 S.W.3d 860, 866 (Ky. 2002).

Real property case dealt with title to property and claimed forged deed.

Dealt with the rights of tenant and subtenants of real property following its foreclosure.

Two Lexington lawyers fighting over UK Football tickets since 1980.  They got them when they where partners through someone else’s name.  The gist of the case is A)  Does laches apply b/c one waited 20 years after his first complaint to push the ownership issue yet again and B) did he prove his case?  COA said laches did not apply b/c there was no detriment or reliance by the other party.  COA also said the Plaintiff did not prove his ownership at trial.  Dissent wants to remand for a hearing on ownership—he thinks neither could prove ownership or there was a continuing type of contractual arrangement.

Commentary:  Of course, the unanswered questions are 1) a fight over UK FOOTBALL (and not basketball) tickets?  2) for over 20 years too?  

On a more serious note, when are our state's athletic programs going to stop this practice of buying and holding tickets in the name of another, and allow everyone in the Commonwealth a fair chance at a fair price to obtain a basketball or football ticket?  

If marking up a ticket at the gate is scalping, then what is it when the university charges a fee beyond the value of the ticket to obtain a certain location.

With the nearly $300 million set for the Louisville Arena, wouldn't it be nice if those unconnected but loyal fans had a chance for a season ticket.  Just a thought - reserve 1000 seats in packages of 2 for an annual lottery each year.  If their taxes are going to pay for it, then they ought to have an opportunity to visit it.  Each year should be a new lottery for the same seats anew.

Ownership to land must be proven by title and location.

No error in ALJ's award of PPD based upon functional impairment rating.