Several cases were filed alleging sexual abuse of minors at the hand of the director of a nonprofit community service program sponsored and funded in part by Lexington-Fayette Urban County Government. Settlements were reached and several putative plaintiffs tried to file additional claims, which were dismissed on summary judgment. Plaintiffs then sued the parties and attorneys involved in the instant case.

COA holds that the instant case was prematurely filed and it must be remanded and dismissed as unripe. Summary judgment in the underlying cases must be reversed, making the instant claim premature.

Leggett owned property (the “Property”) that Sprint wished to purchase to expand its POP facility, which “transmits long-distance telephone signals through fiber optic cable.”  After the parties failed to agree on a fair value for purchase of the Property, Sprint filed a condemnation suit under KRS 416.150 and KRS 278.540.  Sprint claimed it needed all of the Property for a permanent utility easement.

After court-appointed commissioners valued the property, Leggett filed an answer and counterclaim alleging that Sprint did not have power to condemn all of his land for a permanent easement and that it was liable to him for abuse of process, malicious prosecution and violation of his civil rights.

Sprint sought dismissal of its condemnation petition and Leggett’s counterclaim, arguing that Leggett’s counterclaim failed because the condemnation proceeding had been voluntarily dismissed.  The court ultimately dismissed the condemnation proceeding but allowed Leggett to proceed on his counterclaim.

Sprint moved for summary judgment, which the court granted, stating that Sprint had the power to exercise eminent domain over the Property, and that Leggett failed to establish the elements of malicious prosecution and abuse of process.

On appeal, the court concluded that Sprint did not have the authority to exercise eminent domain over the entire Property, reasoning that Kentucky law does not allow a condemnor to “’acquire the property in fee simple if it can obtain access or use of the property through other . . . easements.’”  Sprint only had the power to condemn a right of way, not the entire property.  The court also stated that under KRS 278.540(2), a telephone company may only condemn land for a “right of way for the purpose of constructing, maintaining and operating telephone lines.”  Because the POP facility is not a “telephone line,” Sprint “exceeded its power” when it attempted to condemn the Property for its POP facility. 

The court also affirmed the judgment on Leggett’s malicious prosecution claim, but reversed the summary judgment on his abuse of process and violation of civil rights claims.  As for the abuse of process claim, the court stated that there is a genuine issue of material fact whether Sprint had an ulterior motive for commencing the condemnation action, given that it attempted before filing the petition to purchase the property at a price arguably below market value and dismissed the petition when the commissioners appraised the property at a much higher value.

Here, the testator signed a will on October 30, 1990 and married on October 31, 1990. At that time, under KRS 394.090, a subsequent marriage generally revoked a Will. In 1998, the General Assembly amended the statue to provide that subsequent marriage generally did not revoke a will. The testator died on October 9, 2002, and the Circuit Court held that the prior version of the statute should be applied so that the will was revoked and the decedent died intestate. The Court of Appeals affirmed. Although a will speaks at the time of death, the act of revocation became “complete when or if the contingency contemplated by the legislature occurs.” That occurred under the pre-1998 version of the statute.

Pro se appeal failed to cite to record preserving error and to authority in support of appeal per CR 76.12.

CR 76.12(4)(c)(v) requires an argument with ample supportive references to the record and citations of authority pertinent to each issue of law, which “shall contain at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner.” Appellant’s argument fails to refer to the record or to cite any legal authority. 

CR 76.12(4)(c)(vi) requires a conclusion setting forth the specific relief sought from the appellate court. Appellant fails to explain or justify the relief he would like for this court to grant.  Where serious deficiencies exist in appellant’s brief, the court is justified in ordering appellant’s brief stricken. Robbins v. Robbins, 849 S.W.2d 571, 572 (Ky.App. 1993).

Plaintiffs sought to build a detached garage, and Defendant refused permission.  Trial court said go ahead and build, Defendants appealed to CAs, who reversed the trial court. The trial court refused, for the time being, to enjoin any further building/removal, pending the Plaintiff's submission of revised plans for the garage.  When those plans were rejected, the trial court ordered the Plaintiffs to remove the garage they'd built up during all this litigation.  On appeal, the CA noted that its reversal of the original trial court order was the law of the case and was binding, rendering the garage an ongoing violation of the deed restrictions.  It also said the Plaintiffs built the garage during the pending appeal at their peril.

Parks gets royally shafted when the trial court enters a directed verdict against him on what is basically a breach of oral contract case.  The case legally revolves around the issue of what was Parks supposed to pay for Walden's services.  The trial court not only entered a directed verdict against Parks but granted Walden 5k in attorney's fees.

One has to ask, after reading this case, was this a case of popularity ruling in the courtroom?  Unbelievable decisions by the trial court.  

CA reversed Defendant's convictions for theft by failure to make required disposition of property.  Convictions reversed due to the circuit court’s denial of a request for mistrial based on improper pretrial publicity of a prosecutor’s unrelated claims about the Defendant - the former chief of police. 

When determining whether a motion for mistrial should be granted on grounds of improper publicity, the issue is whether the public opinion was so aroused by the publicity as to prevent a fair trial. Hodge v. Commonwealth, 17 S.W.3d 824, 835 (Ky. 2000).  Publicity regarding unrelated bad actions of the defendant constitutes grounds for a grant of mistrial. Brown v. Commonwealth, 789 S.W.2d 748, 749 (Ky. 1990). The law mandates that a defendant’s right to fair trial requires that he be convicted, if at all, based solely on evidence presented at trial and "not by any outside influence, whether private talk or public print." Patterson v. Colorado, 205 U.S. 462 (1907).  Due to the extremely prejudicial and inflammatory nature of the article, the fact that at least one of the jurors read it and all of them were exposed to a community that had access to the paper constitutes grounds for a mistrial.

The Court of Appeals relied on Lawrence v. Risen, 598 S.W.2d 474, which permits punitive damages where a litigant “has suffered an injury for which compensatory damages might be awarded.”  Here, the Court of Appeals held the Appellee would have been entitled to compensatory damages had he presented any proof on the issue. 

 Furthermore, the Appellee, as required by KRS 411.184, had established by clear and convincing evidence that the Appellant had acted with fraud, malice and oppression.  Lastly, the COA held that the Circuit Court had properly considered the factors set forth KRS 411.186 for computing punitive damages.

CA upheld TC’s finding that Mom’s layoff did not constitute a “substantial and continuing” change of circumstance sufficient to qualify for a reduction of her child support obligation; Mom possessed the same ability to earn and presumably would replace the lost employment with substitute employment before her right to receive unemployment benefits expired.  At that time, if Mom’s income resulted in a 15% reduction in her child support obligation per the Guidelines, such a circumstance might qualify as being substantial and continuing, justifying a reduction in child support.

CA held that Wife was entitle to portion of account alleged by husband to be nonmarital, because Husband provided inadequate tracing for the majority of the account’s funds.  Even though nonmarital funds are maintained in a separate account during marriage, the party asserting the nonmarital nature of deposits made during the marriage must provide tracing of the assets into assets held before marriage.  If he is unable to provide such tracing, then only the amount of funds that has consistently remained in the account will be considered to be nonmarital. 

CA further held that TC did not abuse its discretion in failing to award maintenance to Wife, even though Husband’s income would be double Wife’s after Wife received the requested maintenance. 

Bank failed to give notice of the sake of the mobile home required under the rules but because Jett rejected the mobile home under the UCC and surrendered the home through an agreed order.  Jett may have claims under his UCC complaint (a separate action) but his waived any interest in the mobile home.

The employer gave the Commissioner an incorrect address for the statutory notification that an employee has two years in which to file a claim for workers’ compensation benefits.   The Court ruled in this case that the employer was therefore estopped from raising a statute of limitations defense.  The dissenting opinion argues that the employee probably gave the incorrect address herself, or supplied a blank form.

The employee of an electrical contraor was injured by the actions of the general contractor – E.L. Pipe.  Since E.L. Pipe would have been responsible for workers’ compensation benefits had the employer not been insured, the general contractor enjoyed exclusive remedy immunity from lawsuits.  The employee’s tort claim was dismissed, and the CA affirmed.