Kentucky Real Estate Commission disciplined realtor for failing to set up and retain certain funds in an escrow account and for misrepresenting that he had a line of credit and was holding the funds in an escrow account.  COA held that KREC was not deprived of authority to take such action even when realtor was acting in individual rather than agency/representative capacity.

Popielski's claims against the city were dismissed by failure to answer to discovery.  He claimed the judge abused discretion since the interrogatories were voice and violated the civil rules. 

However, Popielski failed to appeal the dismissal order (time now expired) so that the only issue is the denial of the CR 60.02 motion.  Held - agreed with trial court and not entitled to extraordinary relief.

This personal jurisdiction case involved a New York lawyer whose one trip to Kentucky was to sign a trust as trustee. That trust held music copyrights and was administered in New York , was governed by New York law, and did not maintain bank accounts in Kentucky . Accordingly, the Court of Appeals affirmed a Circuit Court summary judgment holding that the Kentucky courts did not have personal jurisdiction over the out-of-state trustee in his trustee role based on his limited contacts with the state. (The issue of jurisdiction over him in his attorney role was not decided.) It’s unfortunate that this opinion is not a published one as it would be useful in the asset protection context where one locates one’s assets in a state such as Delaware on the basis that the Delaware trustee is not subject to the Kentucky courts’ jurisdiction.
 

Pro se appeal and affirmance of trial court's denial of 11.42 motion claiming ineffective assistance of counsel.   

To establish ineffective assistance of counsel, a movant must satisfy a two-part test showing both that counsel’s performance was deficient and that the deficiency caused actual prejudice resulting in a proceeding that was fundamentally unfair and a result that was unreliable. The burden is on the movant to overcome a strong presumption that counsel’s 


In assessing counsel’s performance, the standard is whether the alleged acts or omissions were outside the wide range of prevailing professional norms based on an objective standard of reasonableness .assistance was constitutionally sufficient or that under the circumstances counsel’s action might be considered “trial strategy.”

A court must be highly deferential in reviewing defense counsel’s performance and should avoid second-guessing counsel’s actions based on hindsight. 

A police officer may “stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot[.]’”  During such a stop, the police officer may “make ‘reasonable inquiries’ aimed at confirming or dispelling his suspicions.”   In the matter now before us, when Gangwish lawfully approached Jett’s car and smelled burnt marijuana, he could question Jett or ask for her consent to search her person. 

Appellant’s counsel on the guilty plea rendered ineffective assistance of counsel for failing to so advise appellant, we vacate appellant’s sentence and remand the matter for re-sentencing pursuant to KRS 532.110(1)(c).

Trial court did not abuse discretion in various evidentiary rulings, to wit:  (1) that the testimony of Dr. Rouben was not admissible because he violated The Health Insurance Portability and Accountability Act of 1996 (HIPPA) and the Kentucky Rules of Medical Ethics; (2) that it was an abuse of discretion for the trial court to exclude the testimony of her proffered expert witness, William  Nellis; and (3) that the trial court abused its discretion in excluding from evidence, certain of Jewish Hospital’s business documents.  The claim of a violation of medical ethics was not preserved for appeal and the HIPPA objections were not timely presented under KRE 103.  The trial court disallowed the plaintiff's expert testimony after conducting a Daubert hearing because it would be speculation.

"[A]buse of discretion is the proper standard of review of a trial court’s evidentiary rulings" [citations omitted]."Rulings upon admissibility of evidence are within the discretion of the trial [court]; such rulings should not be reversed on appeal in the absence of a clear abuse of discretion." "The test for abuse of discretion is whether the trial [court’s] decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles" [citations omitted].

No error for trial judge limiting expert's testimony and opinions to those contained in his post-mortem report and not permitting his testimony in other areas not disclosed.

Affirmed findings of family court regarding abuse and removal involving one child but remanded for for a determination of whether they are at risk of emotional injury or sexual abuse.  In addition, the family court’s failure to engage in a competency determination or to administer a formal oath was harmless error.

Affirmed circuit court's judgment establishing boundary line.  Not clearly erroneous and was supported by substantial evidenced.  CR 60.02 motion denied. 

This appeal involves a legal negligence claim against a law firm's representation from an antenuptial agreement prepared by the lawfirm for the decedent husband and the law firm's subsequent representation of the wife in a declaratory judgment action involving the estate.  The trial court granted summary judgment dismissing the legal negligence claim. Having concluded that there is no genuine issue as to any material fact regarding the legal cause of the appellants’ alleged damages, and that the attorneys are entitled to summary judgment as a matter of law, the summary judgment is affirmed.