Vol. 2006:08 

COURT OF APPEALS DECISIONS FOR FEB 17, 2006

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PUBLISHED.

The CA overturned the Trial Court Judgment and found that under the law at the time of the contract there was no Franchise Agreement and thus the Defendant didn't have to repurchase snow blades.  

TC did not err in admitting evidence of Jackson’s flight after he posted bond and was released from custody prior to trial.  Conviction for possession of a handgun by a convicted felon and being a persistent felony offender in the first degree affirmed.  CA concluded that the evidence of flight in this case was admissible pursuant to KRE 404(b)(1) to show "an expression of a sense of guilt."

In Rodriguez v. Commonwealth, 107 S.W.3d 215 (Ky.2003), the Kentucky Supreme Court determined that the common-law rule regarding the admissibility of evidence of flight survived the adoption of the Kentucky Rules of Evidence (KRE) as a rule of relevancy. Id. at 219. The court explained that "evidence of flight is admissible because it has a tendency to make the existence of the defendant’s guilt more probable: a guilty person probably would act like a guilty person."

CA affirmed Tucker's convictions for Possession of a Handgun by a Convicted Felon and related offenses.  The case arose when a citizen called police and reported that Tucker was drunk, threatening people with a gun, and driving around with a female companion in a Chevy Blazer.  A dispatcher relayed this information to a sheriff who knew that Tucker was a convicted felon.  The sheriff went to an apartment complex where Tucker was living and spotted a vehicle meeting the informant's description.  Upon approach, Tucker and a female got out of the Blazer.  Because Tucker had his hand in his pocket, the sheriff took him by the arm and asked where the gun was.  Tucker said the gun was in his right pocket.  The sheriff then arrested him.  The court held a suppression hearing and denied Tucker's motion to suppress.  Tucker entered a conditional guilty plea preserving his right to appeal the suppression ruling.  On appeal, he argued that the Commonwealth's failure to introduce testimony from the police dispatcher meant that the Commonwealth had not met its burden of proving that reasonable, articulable suspicion justified the sheriff's investigatory stop.  CA distinguished United States v. Hensley, 469 U.S. 221 (1985) and stated that it was not necessary for the Commonwealth to present the police dispatcher to testify at the suppression hearing because the sheriff was not acting at the request of another law enforcement agency.  The dispatcher was merely relaying information to him and had not determined for herself that reasonable, articulable suspicion existed to justify an investigatory stop.     

Two minor children were committed to the Cabinet, which determined that it was in the children’s best interests to be re-unified with their mother after sufficient provision of services to her.  Mother had moved 100 miles away from the county where the children were first taken and placed in foster care and the Cabinet  wanted to re-locate those children to foster care closer to their mother.  The trial court had ordered the Cabinet to keep the children in the original county and the two-hour commute for visitation and delivery of services were seriously hindered by the distance.  KRS 610.010(11) clearly provides that the Cabinet, not the court, has the absolute authority to determine where children committed to it will reside; also affirming the that the separation of powers provision of the Kentucky Constitution requires the Cabinet to locate the residence of children committed to it free of orders of the court. Commonwealth v Partin, 702 S.W.2d 51, 53 (Ky.App. 1986).

At a dispositional hearing for a 14-year old girl, the mother admitted to substance abuse when stressed and that she needed help with her nerves.  The Cabinet recommended substance abuse and mental health evaluation and counseling and the Court ordered the Cabinet to pay the cost since it was undisputed that mother could not afford the costs.  The purpose of the evaluation and counseling was to further the Cabinet’s goal of reuniting the mother and daughter in the same household.  The Cabinet objected to being required to pay the costs.  The Court of Appeals disagreed with the Cabinet’s arguments including (1) relying on KRS 610.010(11) which does not apply, since it concerns restricting the court’s jurisdiction over the Cabinet’s action concerning the care, placement or treatment of a child; the statute does not mention the parent; (2) Section 230 of the Kentucky Constitution, and (3) KRS 453.010, since this is not a judgment or costs levied against the Cabinet.  The Court has the jurisdiction to order the Cabinet to pay the expenses of testing and counseling since it fulfills a public purpose of family re-unification, protects parents constitutional rights to fundamental fairness; and because the fees were not assessed against the Commonwealth in general but against an agency which had already been appropriated money to be used for child health and welfare.

A juvenile court cannot probate a sentence that it would not be permitted to impose directly at disposition.  Clearly, sections (4) and (5) dealing with the imposition of detention restricts this dispositional option to a child fourteen or older. Thus by statute, any child under the age of fourteen may not be placed in detention. Despite the clarity of the statute, the Commonwealth contends that the juvenile court can utilize detention for a child under fourteen as long as the detention time is probated. The Commonwealth appears to be arguing that the juvenile court can use this dispositional alternative (probated detention time) to threaten, scare or intimidate the juvenile into the proper behavior the court, the DJJ, the Commonwealth, the parents, the school or the victim deems appropriate.  While the COA "may believe the end result is commendable, unfortunately the statute does not permit such court action."

It a general rule that where a mortgagor has previously disposed of property, his subsequent execution of a mortgage, the description of which included the land disposed of, does not create a lien upon it. Miller v. Williams, 137 S.W. 779 (1911).

Affirmed summary judgment to Pikeville United Methodist Hospital of Kentucky, Inc. (Hospital) and Danny Briscoe dismissing dismissed Gilliam’s complaint, which alleged that appellees made defamatory statements about him and breached a contractual duty of confidentiality by causing his personnel and employment records to be made public and cast in a false light because Gilliam could not establish damages in connection with the defamatory statements. 

As Gilliam failed to identify compensable damages in his deposition testimony, he failed to meet this element of his defamation case. Furthermore, Gilliam’s failure to set forth his damages during his deposition constitutes a judicial admission which forecloses further dispute on the issue.

SEE:  Kentucky Employment Law Blog Note addressing this decision - Ky. COA Affirms Dismissal Of Defamation Claim That Arose In The Context Of A Labor Dispute.

Claimant settled his case based on a metal fragment which was embedded in his arm and migrated to his heart, coming to rest near the heart wall.  The Defendant brought a motion to contest medical bills for chest pain.  In such a case the burden is on the defendant to prove that the bills were unrelated to the injury.  The ALJ sent the claimant to the University Evaluator pursuant to KRS 342.315, whose opinion is supposed to carry presumptive weight.  The University Evaluator determined that the chest pains could be related to the injury, but advised further testing.  The ALJ ruled against the claimant, finding that the chest pains were related to bronchitis.  The claimant appealed, and the Workers Compensation Board reversed, holding that the ALJ must rely on the University Evaluator’s opinion or explain why he did not.  The Court of Appeals, however, reversed the Board and reinstated the ALJ’s opinion, holding that the failure to bring this error to the attention of the ALJ by a petition for reconsideration was fatal to the appeal because the error was not properly preserved for appeal.

NOT PUBLISHED.

The CAs have jurisdiction only over final orders or judgments of circuit courts.  Here, several parties were arguing as to whom should be considered a de facto custodian of an orphaned child.  The trial court made a judgment on that issue and included within it the "magic" final and appealable language.  CAs held that this language alone does not constitute finality, that the CA must determine for itself whether an order or judgment is truly ripe for review, and that the issue of custodianship was merely an intermediate issue ancillary to the parties' various custody claims. Appeal dismissed.

Evidence was sufficient to support convictions for Burglary in the Third Degree and Possession of Burglar's Tools.

TC properly denied Stogner's Motion to Supress because officer's conduct of stopping his vehicle near the defendant's already stopped vehicle was not a search or seizure under the circumstances. 

TC properly denied Harris's RCr 11.42 motion.

CA affirmed Defendant's convictions for one count of first-degree assault and one count of criminal trespass. Defendant was not denied his sixth amendment right of confrontation by TC's exclusion of evidence concerning victim.  Defendant's testimony precluded a lesser included instruction on second-degree assault.  TC's "hostility" toward defense counsel did not deny Defendant a fair trial.

TC properly denied Defendant's motion to withdraw his plea pursuant to RCr 8.10.

Following remand for reconsideration, CA affirmed Jefferson Circuit Judge Denise Clayton's order suppressing evidence seized from vehicle following a warrantless search.  Since Ingram had been arrested and the officers had the key to the van in their possession, they should have obtained a search warrant for the van since exigent circumstances did not exist.  For the automobile exception to the warrant requirement to apply, probable cause must be accompanied by exigent circumstances. Cooper v. Commonwealth, 577 S.W.2d 34, 37 (Ky.App. 1979). Neither ‘probable cause’ nor ‘exigent circumstances’ alone will justify a warrantless search; both factors must be present.

SCHECKLES V. KENTUCKY PAROLE BOARD
CRIMINAL - Parole (Board must rely on listed factors)
2004-CA-002210
NOT PUBLISHED
AFFIRMING (HENRY)   
DATE: 2/15/2006

DEAN V. COM.
CRIMINAL - Failure of trial court to enter written findings for revocation of probation is error
2004-CA-000089
NOT PUBLISHED  / VACATING AND REMANDING (MCANULTY)
DATE: 2/17/2006

LUTTRELL V. COMMONWEALTH
CRIMINAL - RCR 11.42 DENIAL (re involuntary guilty plea)
2004-CA-002277
NOT PUBLISHED  
AFFIRMING (MCANULTY)
DATE: 2/17/2006

CA refused to find error in TC’s order terminating Dad’s parental rights.  CA commended Dad for attempting to put his life back on track after many criminal convictions and years in jail.  However, CA recognized that Dad is still under the supervision of the courts and will remain on probation for many years, and that any repeated offense could result in a lengthy imprisonment. Furthermore, at the time TC entered its order, Dad was incarcerated and serving a ten year sentence, thus eliminating the placement of the children with Dad as a viable option at the time. Because the children and been in and out of the homes of their mother, other relatives, and the cabinet, waiting for Dad’s availability to care for the children could have been very harmful to them.

Dad did not defeat grandmother’s de facto custodian status by proof of back payments of support to Mom.  Grandmother, not Mom, provided the primary care for the child for most of his life.  Furthermore, even if Grandmother recouped a portion of the funds spent on child’s behalf, this would not negate the fact that she was the primary financial supporter of the child at the time. 

TC was not required to find Dad unfit in order to place custody of child with a de facto custodian.  Further, TC was not required to make specific findings as to each statutory subsection because TC’s opinion and related rulings show that the statutory elements were considered.

A.  B.   V.  COMMONWEALTH
FAMILY LAW - Termination of parental rights (sobriety)
2005-CA-000206
NOT PUBLISHED  
AFFIRMING (BARBER) 
DATE: 2/17/2006

SCHRECKER V. SCHRECKER
FAMILY LAW - Property (non-marital interest in real estate and company)
2004-CA-001804
NOT PUBLISHED   
AFFIRMING IN PART, VACATING AND REMANDING (JOHNSON)
DATE: 2/15/2006

Held the trial court abused its discretion under KRS 403.190 in determining the percentage of husband's non-marital interest in the real estate.  Remanded for the trial court to recalculate the percentage of the cotributions and determine husband’s non-marital interest in the real estate before dividing the remaining marital interest and assigning the marital debt attached thereto. COA did affirm the trial court did not err in its determination that the entire value of husband’s pre-marital stock in the company, including the increase in value during the marriage, was his non-marital property.

WILLIAMS V. FARMERS INSURANCE EXCHANGE
INSURANCE - Exclusion (water damaged to house from ruptured liner)
2004-CA-002554
NOT PUBLISHED   
AFFIRMING (TACKETT)
DATE: 2/17/2006

COA affirmed declaratory judgment action to determine whether homeowner’s insurance policy covered water damage to his house resulting from the rupture of a swimming pool liner.  Homeowner contended the rupture should be regarded as a covered event, and thus the exclusion for water damage in the policy should not apply.  COA disagreed.

CA affirms jury verdict in favor of insured in bad faith action. (Shelby Cir. Ct., Hon. William F. Stewart, judge, presiding).

The facts of the case date back to 1991. Insured's auto policy had lapsed for nonpayment. She sent a check on advice of her local agent, which was received and cashed. Insured assumed her policy was in effect. Some weeks later, insurer sent a refund check to the agent with a notice of no coverage; the insurer sent nothing to the insured. The agent forwarded the check and letter to the insured, but it was not received before an accident occurred. Insurer denied coverage and refused to cooperate with defense counsel for 6 years as the case wound its way through Kentucky courts. The S.Ct. ultimately held in 1997 that the insurer was estopped by its actions from denying coverage and that the insured was covered as a matter of law and that this decision bound all parties. The bad faith claim was remanded; a jury verdict of $425K was returned.

On appeal, insurer tried to argue the issue already decided by the S.Ct., i.e., that coverage existed. CA held that punitives and compensatories were properly claimed and awarded.

B450 PROPERTIES, LLC  V. EAP CONCEPTS, INC.
PROPERTY - Rental Agreement
2004-CA-002229
NOT PUBLISHED 
AFFIRMING (MINTON) 
DATE: 2/17/2006

Stranger to lease not obligated to agreement he is not a  party.

Affirmed trial court's dismissal of doctor's complaint against hospital peer review board.  The law provides that members of a hospital review board are immune from claims for monetary damages by the Health Care Quality Improvement Act of 1986, 42 U.S.C Section 11111 if the action taken by the board is reasonable, and a fair hearing  is provided to the affected physician. Meyers v. Columbia/HCA Health Care Corp., 341 F.3d 461 (6th Cir. 2003). 

The findings of an administrative body cannot be set aside unless the evidence presented by the plaintiff is so persuasive that the determination must be made in favor of the plaintiff. Kentucky Unemployment Insurance Commission v. Murphy, 539 S.W.2d 293, 294 (Ky. 1976).

Reversed and remanded lower court decision that certain transfers of funds by her husband shortly before his death did not constitute fraud on her dower interest in that property. The undisputed facts of this case fall within the purview of well-established caselaw holding that such transfers raise a rebuttable presumption of a fraud on the survivor’s marital rights.  It is clear that the trial court failed to give effect to the long-standing law of this Commonwealth that the non-probate transfer of the bulk or a substantial portion of the spouse’s property, which has the effect of diminishing the surviving spouse’s share, raises a rebuttable presumption of fraud on the survivor’s marital rights.

PANTOYJA-LOPEZ V. ELK HILL FARM
WORKERS COMPENSATION - Law of the Case Applied
2005-CA-001166
NOT PUBLISHED   
AFFIRMING (MCANULTY)
DATE: 2/17/2006

Claimant’s case was put in abeyance when ALJ said he should have additional medical treatment, and in the meantime he was totally disabled. The case came out of abeyance with a different ALJ, who found him to be partially disabled. Appealing, claimant claimant argues he is totally disabled. Court of Appeals finds substantial evidence to support partial disability award and not overwhelming evidence to find him totally disabled, and previous temporary award was not a finding of total, permanent occupational disability.

RICKETT V. TECO COAL CORP.
WORKERS COMPENSATION - Claimant failed to prove repetitive trauma injury was work-related
2005-CA-001327
NOT PUBLISHED  
AFFIRMING (POTTER)
DATE: 2/17/2006

The ALJ dismissed the claimant’s case which was based on repetitive trauma injury and chondromalcia, with overlying psychological disability.  The Court dismissed the appeal, citing the substantial evidence standard.

Thanks to Scott Byrd, Patrick Bouldin,  John Hamlet, Cherry Henault, Sam Hinkle,  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.