Vol. 2006:06 Mailed 2/16/2006
COURT OF APPEALS DECISIONS FOR --- FEB 3, 2006
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PUBLISHED.
DERRY V. COM.Derry was indicted in Barren
County on various sex offenses. After his jury trial had begun, the trial
judge and the attorneys learned that the house where the crimes allegedly
occurred was located in a neighboring county. Derry then moved for a
dismissal of the charges based on improper venue. The Commonwealth moved
for a mistrial and urged the court to make a finding of manifest
necessity. The trial judge granted the mistrial based on manifest
necessity and dismissed the charges without prejudice. Derry's counsel did
not object to the finding of manifest necessity. Derry was
re-indicted in the appropriate county and later entered a conditional guilty
plea in which he reserved his right to appeal his conviction on double jeopardy
grounds. CA affirmed Derry's conviction because there was a manifest
necessity for a mistrial based on improper venue. See Crist v.
Bretz, 437 U.S. 28 (1978).
Conviction for second-degree assault reversed for a palpable error in the jury instruction that allowed the jury to find that Davidson’s hands were dangerous instruments as he used them to strike the victim. Conviction for first-degree unlawful imprisonment affirmed.
Kentucky Revised Statutes (KRS) 500.080(3) requires that in order for parts of the human body to qualify as a dangerous instrument, the body part must directly cause a serious physical injury. While the evidence amply supported a finding that Davidson inflicted a physical injury with his fists, it did not support a finding that Davidson inflicted a serious physical injury with his fists.Based on the plain meaning of KRS 500.080(3), it is clear that parts of the human body are to be treated differently from any other instruments, articles, or substances in determining whether they are dangerous instruments. To establish that an instrument, article, or substance other than a part of the human body qualifies as a dangerous instrument, the Commonwealth must prove only that it is "readily capable of causing death or serious physical injury" "under the circumstances in which it is used, attempted to be used, or threatened to be used[.]" Thus, there need only be the risk of death or serious injury. Under these circumstances, the fact that serious physical injury did not, in fact, occur would not be dispositive of whether a dangerous instrument was used. But the plain meaning of the statutory definition of "[d]angerous instrument" as "any instrument, including parts of the human body when a serious physical injury is a direct result of the use of that part of the human body . . ." adds an additional element to establishing that a part of the human body is a dangerous instrument. Where the instrument in question is a part of the human body, such as a fist or foot, it is not enough to show the risk of serious injury or death. Instead, the Commonwealth must establish that serious physical injury actually occurred as a direct result of the use of that part of the human body. This is the only way to give meaning to the clause, "when a serious physical injury is a direct result of the use of that part of the human body," in the context of the statute as a whole.
The fact that there was insufficient evidence to support a conviction of second-degree assault based on the theory that Davidson’s fists were a deadly weapon is the equivalent of an acquittal on that theory. Because of double jeopardy, Davidson may not be retried for second-degree assault based on this theory. But there was sufficient evidence upon which to convict Davidson of fourth-degree assault, a lesser included offense of second-degree assault, which was also presented to the jury. Thus, there is no impediment to his being retried for the lesser included offense of fourth-degree assault. BELLFIELD V. COMMONWEALTHKRS 635.020(4) calls for an expedited hearing with the sole purpose of determining if transfer to circuit court is appropriate under its terms. The effect of KRS 635.020(4) is to facilitate transfer of juveniles accused of committing a felony with a firearm to the circuit court by bypassing the proof required under KRS 640.010(2). KRS 640.010 is the general preliminary hearing statute for the juvenile code which states in section (2) that such preliminary hearings shall be governed by the Rules of Criminal Procedure. That statute excludes KRS 635.020(4) from its scope. We agree with the Commonwealth that KRS 610.015 and the juvenile code control this matter and the Rules of Criminal Procedure do not apply to the transfer hearing. We further agree with the trial court that, although they employ the same term, the preliminary hearing called for in KRS 635.020(4) is not the RCr 3.10 hearing
SANDOZ
PHARMACEUTICALS CORP. V. GUNDERSON
DAMAGES - Punitives not applicable to extra-territorial conduct
TORTS - Products Liability and FDA approval does not relieve duty to warn
2004-CA-001536
PUBLISHED
Date: 2/3/2006
This was an Oct. 21, 2005 decision published but modified on Feb. 13,
2006.
NOT PUBLISHED.
Bell's convictions for First-Degree Sexual Abuse (three counts) were affirmed. The joinder of offenses involving different victims was permissible under the Rules of Criminal Procedure.
Trial court did not err by refusing to allow Manley to withdraw from his guilty plea to PFO 2 after being convicted of Rape in the First Degree. The record indicated that Manley's decision to waive a penalty phase and accept an agreed sentence was knowing and voluntary.
ADDIS V. COM.CA affirmed Addis's conviction based on his guilty plea in which he waived his right to appeal.
DIPIETRO V. COM.The trial court's failure to make written findings of fact when revoking Dipietro's probation did not constitute an abuse of discretion because Dipietro received adequate notice of the judge's findings when she stated them orally on the record.
PARKER V. COM.Trial judge did not enhance credibility of witness by announcing in presence of the jury that the detective was an expert witness.
SHECKLES V. GIBSONSection 1983 actions ‘are not appropriate vehicles for challenging the validity of outstanding criminal judgments . . . that necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement.’
ASHER V. COM.“[T]he common-law knock and announce principle forms a part of the Fourth Amendment reasonableness inquiry.” Wilson v. Arkansas, 514 U.S. 927 (1995). “The knock and announce rule has three purposes: (1) to protect law enforcement officers and household occupants from potential violence; (2) to prevent the unnecessary destruction of private property; and (3) to protect people from unnecessary intrusion into their private activities.” Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky. 1998) citing Wilson, 514 U.S. 927.
In order to justify a no-knock entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous
or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.
Officers may dispense with the knock and announce requirement when “the officers have a justified belief
that those within are aware of their presence and are engaged in escape or the destruction of evidence.” Similarly,
in United States v. Finch, 998 F.2d 349 (6th Cir. 1993), the same court acknowledged that the policy may claim an exception to the
rule based upon an exigency, noting that “[j]ustification for forced entry into a residence is ordinarily a fact-oriented
issue. The outcome may be determined not only by evidence of events at the scene, but also by evidence concerning police
knowledge of the propensities of persons who may occupy the premises.
11.42 motion deniedl following unconditional guilty plea and limited to issues were not and could not be raised on direct appeal.
WRIGHT V. COM.COA concluded factual finding relied upon by the trial court
was clearly erroneous and that the trial court had incorrectly applied the law,
and therefore vacated the opinions and orders of the trial court, and upon remand for
resentencing, direct the trial court to vacate Wright’s twenty-five year sentence and provide him with the opportunity to enter
a guilty plea pursuant to the Commonwealth’s initial twenty-year offer.
Evidence was presented from which the jury could have concluded that Gatewood’s pain resulted from conditions or injuries unrelated to his accident with Duvall. The fact that the jury awarded Gatewood some of his medical bills does not necessarily reflect that the jury believed that his claims of pain and suffering damages were warranted. As noted by Duvall, the award could simply reflect a belief that Gatewood deserved to have his medical condition fully evaluated following the accident. Plaintiff Gatewood had a prior accident which the jury could have attributed as the cause of his pain and suffering.
COMMENT: Miller v. Swift simply held that a zero verdict on pain and suffering (and mental anguish and inconvenience) is not clearly erroneous just be cause the jury awarded medical expenses. The question is one of causation, and here the defendant pointed the finger to a prior accident. It is submitted that the review on appeal may be under an abuse of discretion standard in ruling on the motion for new trial for inadequate damages, but the heart of the inquirey is one of causation and in the absence of evidence of a break in the causative link (eg., prior accident, subsequent accident, or the injury is not associated with additional or any pain and suffering) then it will not be disturbed on appeal. Of course, as said many times in these commentaries, it is counterintuitive to affirm a trial court's denial of the new trial motion in reliance upon the trial judge's better position to weigh the evidence and witnesses but not require the trial judge to enter into the record those actual findings. Just compare that unarticulated reliance in this situation to the typical family court reversal on appeal when the family court judge fails to adequately articulate the findings on factors mandated by the statute for making a child custody award (eg., in this issue Counts v. Counts, 2004-CA-002612). Oddly enough the rule that the appellant cannot argue one can of worms at the trial court and another at the appellate court is not necessary when there is no can serving as the repository for those worms.
WHOBREY V. KENTUCKY RETIREMENT SYSTEMS
THOMAS V.
COM.
EVIDENCE - Witnesses (weight and credibility determined by jury)
2004-CA-002354
NOT TO BE PUBLISHED
Date: 2/3/2006
Jury, not an appellate court, has the sole responsibility to weigh the evidence and judge the credibility of all witnesses that testify before it. Dunn v. Commonwealth, 151 S.W.2d 763, 764-765 (Ky. 1941). Affirmed criminal conviction.
BERGER V.
BERGER
FAMILY LAW - Valuation of Insurance Practice/Attorney’s Fees
2004-CA-001691
NOT TO BE PUBLISHED
AFFIRMING
McANULTY
Date: 2/3/2006
Valuation of Insurance Practice. This case is well worth reading for the rather comprehensive discussion of the various ways to value the book of business of the owner/agent of an insurance practice. As to the valuation of any asset, generally, it re-affirms the concept that the trial judge does not have to choose the value or valuation method of any specific expert witness, but can determine the value and the valuation method so long as it falls within the range of testimony offered.
Attorney’s Fees. The Court’s award of $25,000.00 in attorney’s fees to the wife was supported by the fact that the husband’s earning ability was $260,000 and the wife’s was $60,000. The husband gave the wife difficulty in obtaining financial information and the fees were also awarded based in part of his conduct and tactics. “The amount of an award of attorney’s fees is committed to the sound discretion of the trial court, which is in the best position to observe obstructive conduct and which must be given wide latitude to sanction or discourage such conduct.”
WOLFORD V.
ALLEN
FAMILY LAW - Motion to change custody
2004-CA-002163
NOT TO BE PUBLISHED
Date: 2/3/2006
Motion for change of custody denied. Four months after the order granting sole custody to father, mother moved for a change of custody. The custody order had given father, a long distance truck driver, sole custody so long as he remained living with his parents, who had always taken care of the child when the father was away from home for work. Even though the statute governing change of custody has relaxed the requirements necessary for the trial court to grant a change, the only fact that had changed was that mother had married the man she had planned to marry. Her allegations that a change was necessary because father had turned the care of the child over to his parents was not a change, in fact father was merely doing exactly what the trial court had ordered him to do.
GEE V. GEE
FAMILY LAW - CR 60.02
1999-CA-003143
NOT TO BE PUBLISHED (AFFIRMING; KNOPF)
Date: 2/3/2006
The actual decree of dissolution cannot be set aside or rendered void. The property settlement agreement cannot be set aside by the use of CR 60.02(d) under the facts of this case. The identical property settlement agreement had been filed with the Clerk and approved by the court not once but twice, once in 1992 and again in 1996. Husband had opportunity to appear at both hearings and did not complain; in fact, his actions in 1996 ratified the agreement from 1992 and eliminated any ability to raise extrinsic fraud as an issue. He did not raise any objection until two years later in 1998, and, except for alleging that the parties lived together after the entry of the decree, he offered no evidence of fraud of any kind.
BHAVALKAR
V. BHAVALKAR
FAMILY LAW - Tracing nonmarital assets
2004-CA-000920
NOT TO BE PUBLISHED (AFFIRMING; SCHRODER, J)
Date: 2/3/2006
Tracing nonmarital assets. This case is worth reading for how not to present evidence to trace nonmarital assets. Husband was not successful in persuading the trial court or the Court of Appeals of his claims that most of the substantial retirement accounts were his nonmarital assets. Clearly, some of the assets were, and he proved that by having account statements that predated the marriage. His failures came in selectively offering income tax returns from certain, but not all years; and claiming that he sold premarital real estate during the marriage and failing to produce copies of the deeds showing the sales. To counter his testimony, the wife offered testimony that husband controlled all of the finances, that she worked full time during the marriage, that the parties lived frugally, and she had always been told that the parties were saving for their retirements.
HENSLEY V.
HENSLEY
FAMILY LAW - Property (gift)
2004-CA-001010
NOT TO BE PUBLISHED
Date: 2/3/2006
Trial
court acted judicially when it granted divorce decree and entered findings
of fact based upon legal theories in determining the division of contested
marital assets, thus making it appropriate for the court to later enter a
nunc pro tunc order as to same after Husband’s death.
Father’s failure of support, coupled with his absence from child’s life for substantial periods of time, sufficiently established his abandonment of the child and justified termination of his parental rights
O. (D.C.) V. O. (J.A.)Although the allegations of abuse were serious and disturbing,
and TC found them to be credible, TC did not abuse its discretion in denying
Mother’s request to terminate Father’s visitation.
To protect the children, TC properly restricted Father’s
visitation. Given the ambiguous nature of some of the allegations, TC allowed
Father very limited and supervised visitation with the children. TC also has
continuing jurisdiction to modify visitation as the facts and circumstances
warrant.
Although TC’s order stated that it was in the best interests
of the children that sole custody be awarded to Mother, TC did not examine the
statutory factors of KRS 403.270 other than a finding of conflict between Father
and child, thus the order did not adequately articulate findings on the factors
mandated by the statute. Vacated and remanded.
TC erred in dividing marital property by merely assigning the
parties the property in their possession. As TC made no findings of fact as to
what personal property was at issue, CA could not ascertain whether division was
just. Vacated and remanded.
TC’s declaration that Wife had incurred the majority of the
marital debt because of Husband’s failure to pay according to court’s orders
was a statement that Wife’s financial resources had been exhausted.
Therefore, TC did properly base its award of attorney fees to Mother on
consideration of their financial resources according to KRS 403.220.
Affirmed.
GATEWOOD V. DUVALL
Evidence was presented from which the jury could have concluded that Gatewood’s pain resulted from conditions or injuries unrelated to his accident with Duvall. The fact that the jury awarded Gatewood some of his medical bills does not necessarily reflect that the jury believed that his claims of pain and suffering damages were warranted. As noted by Duvall, the award could simply reflect a belief that Gatewood deserved to have his medical condition fully evaluated following the accident. Plaintiff Gatewood had a prior accident which the jury could have attributed as the cause of his pain and suffering.
COMMENT: Miller v. Swift simply held that a zero verdict on pain and suffering (and mental anguish and inconvenience) is not clearly erroneous just be cause the jury awarded medical expenses. The question is one of causation, and here the defendant pointed the finger to a prior accident. It is submitted that the review on appeal may be under an abuse of discretion standard in ruling on the motion for new trial for inadequate damages, but the heart of the inquirey is one of causation and in the absence of evidence of a break in the causative link (eg., prior accident, subsequent accident, or the injury is not associated with additional or any pain and suffering) then it will not be disturbed on appeal. Of course, as said many times in these commentaries, it is counterintuitive to affirm a trial court's denial of the new trial motion in reliance upon the trial judge's better position to weigh the evidence and witnesses but not require the trial judge to enter into the record those actual findings. Just compare that unarticulated reliance in this situation to the typical family court reversal on appeal when the family court judge fails to adequately articulate the findings on factors mandated by the statute for making a child custody award (eg., in this issue Counts v. Counts, 2004-CA-002612). Oddly enough the rule that the appellant cannot argue one can of worms at the trial court and another at the appellate court is not necessary when there is no can serving as the repository for those worms.
WHOBREY V. KENTUCKY RETIREMENT SYSTEMS
THOMAS V.
COM.
EVIDENCE - Witnesses (weight and credibility determined by jury)
2004-CA-002354
NOT TO BE PUBLISHED
Date: 2/3/2006
Jury, not an appellate court, has the sole responsibility to weigh the evidence and judge the credibility of all witnesses that testify before it. Dunn v. Commonwealth, 151 S.W.2d 763, 764-765 (Ky. 1941). Affirmed criminal conviction.
SOUTH
LOUISVILLE COMMUNITY MINISTRIES, INC. V. ANTHEM HEALTH PLANS OF KY, INC.
INSURANCE - Contract (ads, quotes, solicitations are invitations and not
offers to be accepted)
2005-CA-000148
NOT TO BE PUBLISHED
Date: 2/3/2006
At dispute in the real property action was the location
of a passway over properties. The determination of the location and dimensions of a passway are within the discretion of the trial court.
Daniel v. Clarkson, 338 S.W.2d 691, 693 (Ky. 1960).
There is a dispute as to what type of relationship ECI had with PBK during their respective involvements with Maverick.
ECI claims that it had an agreement with PBK that it was the priority lien holder for accounts receivable ECI purchased from Maverick. However, PBK maintains it always insisted that it was
the priority lien holder for all Maverick’s accounts receivable due to its November 24, 1998 financing statement.
Security agreements are effective according to its terms between the parties, against purchasers of the collateral and against creditors. KRS 355.9-201 (1998). [A] security interest is not enforceable against the debtor or third parties with respect to the collateral and does not attach unless: (a) . . . the debtor has signed a security agreement which contains a description of the collateral . . . (b) value has been given; and (c) the debtor
has rights in the collateral. KRS 355.9-203(1)(a)-(c) (1998).
Attachment occurs as soon as all of the events specified in subsection (1) of this section have taken place unless explicit agreement postpones the time of attaching. KRS 355.9-203(2) (1998).
A financing statement must be filed to perfect all security interests. KRS 355.9-302(1) (1998).
A financing statement is sufficient if it gives the names of the debtor and the secured party; is signed by the debtor; gives an address of the secured party from which information concerning the security
interest may be obtained; gives a mailing address and identification number of the debtor; and contains a statement indicating the types, or describing the items, of collateral.
KRS 355.9-402(1) (1998). A financing statement may be filed before a security agreement is made or a security interest otherwise attaches. Id. As such, actual notice of possible future advances to any would-be subsequent creditor is provided
by the future advance clause appearing in the security agreement rather than the financing statement. First National Bank of
Grayson v. Citizens Deposit Bank and Trust, 735 S.W.2d 328, 331 (Ky.App. 1987).
A filed financing statement is effective for a period of five (5) years from the date of filing.
PBK’s security interest in Maverick’s accounts receivable was perfected when the UCC financing statement was filed on November 24, 1998 in accordance with KRS 355.9-302(1)(1998).
Perfection of a security interest gives constructive notice to the world of the claim or interest of the one asserting it.
PBK’s lien on Maverick’s accounts receivable took priority over ECI’s lien because PBK perfected its security interest more than eight months prior to ECI’s perfection of their security interest.
Therefore, PBK was entitled to all Maverick’s accounts receivable, including those factored by
ECI.
KINDRED
HOMES, INC. V. COLVIN
PROPERTY - Mechanics and Materialmans Lien (insufficient notice)
2005-CA-000297
NOT TO BE PUBLISHED
Date: 2/3/2006
Colvin and Blackburn agree that no pre-filing notice of the lien was required, but assert that the law requires that the property owner must have notice after the lien is filed for notice to be considered statutorily effective. Middletown Engineering Co. v.
Main Street Realty, Inc., 839 S.W.2d 274, 275 (Ky. 1992).
Because the lien sent to them was not stamped as filed by the clerk and was not sent within seven days after the lien was filed,
it did not satisfy the notice requirement found in KRS 376.080(1).
The language of the letter sent with the lien was too equivocal to be considered notice that a lien was filed. The letter appears to give the debtor thirty days to dispute the debt.
The letter and copy of an unfiled lien was insufficient notice that a lien had been filed.
CONSOLIDATED
INFRASTRUCTURE MANAGEMENT AUTHORITY, INC. V. ALLEN
TORTS - Whistleblower; KRS 61.103(2); Limitations on injunctive relief and
punitives
2004-CA-001508
NOT TO BE PUBLISHED
Date: 2/3/2006
This 'whistleblower' case held the limitations under KRS 61.103(2) which
created a 90 day limitation applied only to injunctive relief or punitive
damages.
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.