Vol. 2006:05; Feb.
12, 2006Vol. 2006:05; Feb.
12, 2006
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COURT OF APPEALS - JAN. 27, 2006
PUBLISHED.
FIELDS
V. COM.
CRIMINAL - Crimes (rape, elements, prior dvo)
2004-CA-002108
PUBLISHED
AFFIRMING
PJ: PAISLEY
DATE: 1/27/2006
The evidence of prior domestic violence was relevant to show forcible compulsion, one of the elements of rape in the first degree. Thus, the trial court did not err in admitting Marilyn’s testimony regarding the prior acts of domestic violence. Since allowing the jury to read the transcript did not affect the substantial rights of Fields or result in manifest injustice, no palpable error under RCr 10.26.
HUGHES
V. LAMPMAN AND COTTON STATES MUTUAL INS. CO.
INSURANCE - UIM Benefits, Coots Advance, and Real Party In Interest at
Trial
TRIALS - Failure to identify UIM carrier, not harmless error
2004-CA-002600
PUBLISHED
PJ: COMBS
REVERSING AND REMANDING
Jefferson Circuit Court, Judge Willett
DATE: 1/27/2006
This case involved a jury trial that occurred before Earle v. Cobb, but an appeal that was decided after Earle v. Cobb. The UIM carrier advanced the liability limits and apparently participated in discovery. At trial, the judge ruled over plaintiff's objection that the underinsured motorist carrier would not be identified to the jury. The jury returned a defense verdict on liability. Appeal ensued, and the appellants claimed harmless error. Dissent was filed by Judge Dyche who opined it was harmless, but the majority relied upon Earler v. Cobb and reversed the remanded.
"While Lampman argues that the trial court’s error is harmless in view of the jury’s ultimate finding, we are not persuaded that the error is susceptible of such an analysis. In considering the parties’ arguments in Earle, the Supreme Court of Kentucky was persuaded by the decision of the Supreme Court of Florida in Medina v. Peralta, 724 So.2d 1188 (1999). The Medina Court held that the trial court’s error (in withholding full information from the jury) amounted to deception and constituted a complete miscarriage of justice, emphasizing that the error was not subject to review through a harmless error analysis. Medina at 1189-90. We agree. Earle has explicitly condemned as manifestly unjust the subterfuge or legal fiction
of disguising the alleged tortfeasor as the only real party with potential liability to the plaintiff at a trial against the plaintiff’s UIM carrier. Consequently, the error cannot be dismissed as merely harmless."
KLB COMMENTS: This case highlights a very good trial practice trip as plaintiff's attorney Ronald Hillerich from Louisville did not accept the normal way of doing business and agreeing or acquiescing to the defendant insurance company's bifurcation of the underinsured motorist claim. Until Earle v. Cobb, this was considered the "de rigeur" to be followed. However, the law changes, the objection was preserved, and a new trial will ensue with no hidden parties. Although it is not clear in this decision, but I wondered if the insurance company participated in discovery and depositions prior to its attempt to go 'sub rosa' and bifurcate.
The other point from this case is that it highlights
the law has changed and is being strictly enforced. Of course,
Judge Dyche does present a good point on harmless error since the UIM
question was never legally implicated since the tortfeasor was held not
at fault. However, Judge Dyche may have missed the point that the
majority grasped intuitively and expressly - truth is truth and
permitting a fiction to mislead the jury as to the real parties in
interest is not simply harmless but goes to the verity and truth of the
trial by jury process. Interesting question for this case which
may be appealed to the Supreme Court. However, long term
implications of this decision as the Earle v. Cobb interlude is probably
minimal.
In the case, the claimant appeared not to have reached
maximum medical improvement, and moved to voluntarily dismiss her claim without
prejudice after the filing of the answer by the employer. No grounds
had been stated by the claimant in support of her motion, and by the close of proof, no physician had assigned to Hartlage a permanent functional impairment rating.
The ALJ granted the motion, but the WCB vacated it.
If the defendant has filed an answer, then the plaintiff can only secure a voluntary dismissal by either obtaining the defendant’s stipulation or by obtaining a court order. CR 41.01(1) & (2).
After Hartlage filed her claim, Kroger promptly answered it; thus, she was not entitled to a voluntary dismissal as a matter of right.
Hartlage argues that in Cornett, the Supreme Court suggested that a “procedural dismissal” is always without prejudice and that a claimant may subsequently re-file his claim if the statute of limitations has not expired. A careful reading of Cornett, however, shows that it does not support the proposition that a “procedural dismissal” (a term not found in Cornett) is always without prejudice.
However, voluntary dismissals are governed by CR 41.01 and the ALJ’s discretion to grant one is not unlimited. Sublett v. Hall, 589
S.W.2d 888, 893 (Ky. 1979). Some of the factors an ALJ should consider while analyzing a request for a voluntary dismissal without prejudice are: 1) the amount of preparation made by the opposing party; 2) the time lapse between the filing of the claim and the filing of the motion to dismiss; 3) the prejudice that the opposing party may suffer; 4) the adjudicative effect that the dismissal may have on the merits of the case; 5) the need for terms and conditions to govern the dismissal; and 6) the prejudice that the moving party may suffer due to a term or condition which governs the dismissal. In essence, the ALJ must make sure that the opposing party does not suffer substantial injustice or substantial prejudice by the dismissal.
In her motion for dismissal, Hartlage did not set forth any grounds for her request.
The ALJ abused his discretion by granting the dismissal without prejudice since the
regulations, which set forth the procedures for workers’ compensation claims, provide appropriate remedies that would have protected Hartlage’s rights and that would have been less onerous for Kroger. Moreover, in resolving Hartlage’s motion, the ALJ acted arbitrarily, thereby abusing his discretion, since he failed to apply any of the factors set forth in
Sublett.
NOT PUBLISHED.
LUMPKIN V. COM.Defendant properly denied motion for directed verdicts. Cocaine residue (which is cocaine) is sufficient to entitle the Commonwealth’s charge to go to a jury when there is other evidence or the inference that defendant knowingly possessed the controlled substance.
SHIFERAW
V. MILLS
APPEALS - Preserving Appeal (family court)
2004-CA-002171
NOT PUBLISHED
DATE: 1/27/2006
Wife appealed from TC's postdissolution order directing the release of funds
held in escrow after the sale of the parties’ marital residence on the basis
that she was not served with a copy of the motion seeking the release of funds
and so was not present in court for a hearing on the motion. CA ruled that
this objection was not timely raised or addressed at TC level and thus was not
preserved for review.
HARTWICH
V. TODD AND WILKEY
CIVIL PROCEDURE - Summary Judgment Reversed as Question of material fact
existed
2004-CA-002371
NOT PUBLISHED
DATE: 1/27/2006
Darrell Hartwich appeals from an order of the circuit court overruling his motion for summary judgment requesting reformation of a deed, and instead granting a money judgment in his favor in the amount of $3,100.00.
Summary judgment was improperly granted. Either there are no questions of material fact or that the movant is entitled to judgment as a matter of law. CR 56.03. Determinations remain to be made that must be made in the trial court rather than in this Court, either through further discovery and motion practice
or at trial.
FERRIELL
D/B/A KEITH UPHOLSTERING & DESIGN V. PODGURSKY
APPEALS - Finality
2005-CA-0000403
NOT PUBLISHED
DATE: 1/27/2006
Trial
court rendered a judgment it deemed final, and it included
the "there being no just cause for delay" language. The
CAs noted that the inclusion of such language does not automatically
render a judgment final; what's more, the CAs have a duty to examine the
record to determine if an order truly is final. CR 54.02 states
that when more than one claim for relief is presented in an action, the
court may grant a final judgment as to one claim only if there is no
just reason for delay. Here, the CAs found the judgment at issue
did not wholly dispose of at least one claim of either party to the
action. It therefore dismissed the appeal.
WINKLER
V. KENTUCKY ECONOMIC DEVELOPMENT FINANCE AUTHORITY
CIVIL PROCEDURE - SUMMARY JUDGMENT (Evidence needed to prevent)
2005-CA-000080
NOT PUBLISHED
DATE: 1/27/2006
CA affirms grant of SJ to KY Economic Dev. Finance Authority on promissory note and guaranty agreement
CA holds that the promissory note and guarantee agreement signed by the appellant constituted waivers of appellant's right to claim impairment of collateral under the UCC. Further, the loan agreement supports appellee's contention that no genuine issue of material fact existed.
DENNY
V. COM.
CRIMINAL - RCR 11.42 DENIAL
2004-CA-002322
NOT PUBLISHED
DATE: 1/27/2006
SWIFT
V. COM.
CRIMINAL
2003-CA-002033
NOT PUBLISHED
DATE: 1/27/2006
TC erred by refusing to give a jury instruction on the lesser-included offense of possession to the cultivation of marijuana charge. Case remanded for retrial on that charge only. The forfeiture order is reversed and this case is remanded for reconsideration pending the outcome of the new trial.
The presence of the roach in the hallway provided sufficient probable cause to search not only the house, but by extension the curtilage of the house which included the camper and the yard.
DURHAM
V. COM.
CRIMINAL
2004-CA-001921
NOT PUBLISHED
DATE: 1/27/2006
Sufficient evidence existed for the trial court to
deny Durham’s motions to dismiss the manufacturing methamphetamine
charge.
Since claimant has the burden of proof and since her claim was denied, COA may reverse under this standard only if the evidence in her favor is "so compelling that no reasonable person could have failed to be persuaded by it." COA found no basis to change or modify the standard so recently set out by this court.
BLOYD V. KENTUCKY RETIREMENT SYSTEMSSince claimant has the burden of proof and since her claim was denied,
COA may reverse under this standard only if the evidence in her favor is “so compelling that no reasonable person could have failed to be persuaded by it.”
COA found no basis to change or modify the standard so recently set out by this court.
Distribution of assets/assignment of debt/determination of marital and non marital
assets. This 27-page opinion can best be summed up by saying if the trial court does not issue clear findings of facts as required by the statutes, the Court of Appeals is not going to render a decision, but will vacate the trial order and remand for specific findings of fact. This case involved four separate pieces of real estate, one of which contained the marital residence. Husband owned almost all of the real estate prior to marriage and the balance was sold to husband after the marriage by his parents (the owners) for $1.00, far below the actual value. During the marriage, the real estate was first put into both husband and wife’s name for estate planning; subsequently, in response to husband’s personal bankruptcy problems, the real estate was put solely into wife’ s name. Also during the marriage, wife inherited substantial sums of money which she claimed were invested in improvement for the real estate. She first put the money into other financial accounts and from there funds were spent on the real estate. There were two mortgages on the real estate, both secured by all of the acreage and the residence. Wife had paid down on the mortgages from her own earnings and had also spent some of the $10,000 line of credit back to its limit to purchase a necessary and serviceable automobile, both after the parties’ separated. Wife also offered testimony that portions of the mortgage loan funds were used to finance husband’s personal legal fees, gambling and business losses, and losses associated with husband’s alcoholism. The Court of Appeals gave grudging approval to the trial court’s conclusion that wife had failed to meet her burden of tracing her nonmarital funds - “(W)hile we may have reached a different conclusion .....”. etcetera.
Despite this reasonably complicated facts with their differing implications, the trial court failed absolutely to make any findings. The Court of Appeals required, on remand, findings that specifically defined with reasoning what assets were nonmarital and which were marital and to value them, prior to making distribution between the parties. Specific findings as to the assignment of debts was also required, including the trial court’s addressing the wife’s evidence on the debt.
In the cross appeal filed by husband, the Court of Appeals supported his argument that the trial court’s direction was ambiguous when it ordered that a specific tract of land should be divided with the Petitioner receiving “the bottom half of the tract” and the Respondent receiving “the top half of the tract”. Upon remand the trial court is to clarify the boundary line between the top and the bottom half.
Attorney’s Fees. Husband failed to provide a reference to the record identifying the manner in which the issue of attorney’s fees was preserved for review, pursuant to CR
76.12(4)(c)(iv). He also failed to file a motion requesting attorney’s fees; did not identify the issue in his mandatory case disclosure, in the partial settlement agreement, or his trial memo; he raised the issue for the first time in his CR 59.05 motion to alter, amend or vacate. Since a party cannot invoke CR 59.05 to raise arguments and present evidence that should have been presented during the proceedings before entry of judgment, the issue is not preserved for review and the court of appeals cannot address the issue.
The three year old child had lived with her maternal grandparents after the sudden death of the natural mother for three months before the natural father filed for sole custody. The grandparents help in caring for the child and their financial contribution, and even the fact that the natural mother and the child lived with the maternal grandparents for a period of time, did not begin to rise to the level of being the primary caregiver and the statute speaks in the singular, and not to a team effort. Mother and child had lived independently in their own residence for almost three years before mother died. As a matter of law, the grandparents are not the de facto custodians. There was substantial evidence to support the court’s ruling that the father was a fit parent so the trial court did not err in finding that father had the superior right to his child.
The following facts and the observations of the trial court as to the conduct and believability of the witnesses are sufficient to support the entry of a comprehensive domestic violence order to remain in effect for three years, including the surrender of all guns, and a domestic violence treatment order. The marriage of the parties had lasted 36 years and the parties had separated approximately seven weeks. The husband admitted that 15 -20 years before, during their marriage, engaged in a pattern of beating and sexually abusing his wife. The wife admitted having sex with the husband three weeks prior to the domestic violence hearing and did so because she feared he would beat and rape her if she did not and that the sex was not consensual. Two years prior to the hearing, wife testified that husband had threatened to kill her as he walked out of their home; she locked the door behind him and tried to call 911, he broke a lock on the window and attempted to crawl back inside. She feared a resumption of the activity because of his more recent activity since the separation - indeed the argument the husband raised on appeal was whether it was shown by a preponderance of the evidence that the abuse may occur again. The trial court found a pattern of threatening behavior since the parties separation: husband 1) painted the doors and windows of her home red and cut out the screens when she was not home; 2) threatened on a regular basis to “ruin” her life if she would not have sex with him; 3) wife believed husband would eventually kill her; husband 4) called her place of employment and told her employer she was unfit to work around children and should be fired; 5) repeatedly screamed at her and belittled her and accused her of affairs; 6) had apparently secretly tape-recorded her telephone conversations for three years. Further, husband failed to request additional findings which is fatal to the appeal.
S.M.
V. COM.
FAMILY LAW - Termination of parental rights (standard of review)
2005-CA-000716
NOT PUBLISHED
DATE: 1/27/2006
Termination of parental rights affirmed on appeal as there was clear and convincing evidence in the record and the trial court's findings cannot be disturbed unless found to be 'clearly erroneous.'
D.D.Y. V. J.A.G.Party seeking termination appealed denial. COA agreed with the trial court that J.A.G. (father) appears to have made a drastic and commendable turnaround in his life and has gone a long way in recovering from his methamphetamine addiction. He has also taken clear and obvious steps to remedy his past conduct as it pertains to the care and support of C.M.G. and his general absence from her life. The record also does not reflect any sort of basis for a belief that C.M.G.’s life would somehow improve if J.A.G.’s parental rights were terminated. Consequently, the trial court was not “clearly erroneous” in concluding that C.M.G. would benefit from a relationship with her biological father and that, accordingly, it would not be in her best interest for his parental rights to be terminated.
TRI-COUNTY WOOD PRESERVING, INC. V.Tri-County appeals TC
decision in favor of appellees. Issue is whether notice of lien
was provided in a timely manner pursuant to KRS 376.010 (4).
Relevant provision mandates notice to owner of intention to claim a lien
within 75 days of last day of furnishing materials. Appellant
argues that statute says “within 75 days of material OR labor”.
CA finds that plain and unambiguous language of statute defines
controlling event as giving notice within 75 days of providing material
and that, in this case, notice was not given in time.
Thanks to Scott Byrd, Patrick Bouldin, John Hamlet, Cherry Henault, Sam Hinkle, Suzan J. Hixon, Chad Kessinger, Stephen Keller, Michelle Eisenmenger Mapes , Peter Naake, Paul C. O'Bryan, Bryan Pierce, Alma Puissegur, Paul Schurman, Michael Stevens and James Worthington for their efforts in digesting Kentucky's published appellate decisions.