COA Decisions - Mar. 24, 2006 (Vol. 2006:15)

In light of the continuing jurisdiction granted to the District Court by KRS 610.010(13), CR 59.05 does not apply to the entry of the dispositional order. KRS 610.010(13) grants the juvenile session of the District Court “continuing jurisdiction” to “review” a previously entered dispositional order. The overall purpose of the Unified Juvenile Code that it was the intent of the legislature that the grant of “continuing jurisdiction” set out in KRS 610.010(13) include the continuing power to amend or to modify a previously entered dispositional order.

CALLOWAY V. COM.
CRIMINAL - Rebuttal Testimony
2005-CA-000589
PUBLISHED
AFFIRMING (TACKETT)
DATE: 3/17/2006

CA affirmed Defendant's conviction and 1 year sentence for first-degree sexual abuse. TC properly allowed rebuttal evidence on a material issue - whether the victim and her father testified truthfully that victim did not talk to her grandmother about the abuse. There was sufficient evidence presented to deny motion for directed verdict.

A Lexington police officer initiated a Terry stop of a couple of people who were standing in a breezeway of a housing complex known for drug activity. One person said that she was there to see Birch. Moments later, Birch walked out of his nearby residence. The officer then approached and questioned Birch about who he was and what he was doing. In the process, the officer verified that Birch had an outstanding arrest warrant. Consequently, he was placed under arrest. During a search incident to that arrest, crack cocaine was found in Birch's hand. At a subsequent suppression hearing, Birch argued that the officer lacked any reasonable suspicion for a Terry stop. The trial court basically held that, regardless of the illegality of the stop, the pending arrest warrant was a sufficient intervening event that cured any taint. Hence, the suppression motion was denied. CA upheld the denial and noted that such warrants can cure the taint of "non-flagrant" illegal stops like the one in this case.

Dutton appeals TC's entry of Summary Judgment for McFarland in a premises liability case. McFarland was the landlord of certain property leased by a dog grooming salon owner. Dutton was a customer of the salon who fell while exiting the shop when she slipped on a wet rug lying on the pavement that the salon owner had left there to dry. Dutton sued both the salon owner tenant and McFarland. McFarland moved for SJ arguing that it owed no duty to Dutton, and in the alternative arguing that the condition was open and obvious. TC granted the motion based on McFarland's lack of knowledge of the wet rug, lack of control over the parking lot and lack of contractual obligation to repair defects in the leased premises.

On appeal, Dutton argues that McFarland was negligent per se due to Bowling Green's adoption of the International Property Maintenance Code, which required all walkways, driveways, parking lots, etc. to be kept in good repair and free from hazardous conditions. Dutton relied on Rietze v. Williams, 458 S.W.2d 613 (Ky. 1970), to argue that this adopted administrative regulation has the same force and effect as enacted statutes pursuant to KRS 13.081, and that KRS 446.070 permits recovery for personal injuries suffered as a result of a violation of the adopted regulation.

Held: COA affirmed TC's entry of SJ by noting that KRS 13.081 was repealed in 1974 and that Rietze v. Williams was overruled on this issue in Centre College v. Trzop, 127 S.W.3d 562 (Ky. 2003). The COA also noted that the safety regulation relied upon by Dutton was not adopted pursuant to an enabling statute enacted by the General Assembly. Finally, the COA noted the prior Kentucky court rulings that held KRS 446.070 does not apply to municipal ordinances or federal regulations.

B .G. JESSUP BUILDERS, LLC V. KRUSZEWSKI
CONTRACTS - Damages for breach of construction contract
2004-CA-001898
NOT PUBLISHED
AFFIRMING IN PART, REVERSING IN PART AND REMANDING, AND DENYING MOTION TO STRIKE (KNOPF)
DATE: 3/17/2006

OWENS V. COMMONWEALTH
CRIMINAL -- Ineffective Assistance of Counsel (RCr 11.42)
2004-CA-001592
NOT PUBLISHED
AFFIRMING (MILLER)
DATE: 3/17/2006

RCr 11.42 motions must be raised by motion at the trial-court level. When a defendant alleges ineffective assistance in a motion for a new trial (and the trial judge denies the motion), there must be sufficient evidence in the record for an appellate court to review that decision. Here, the defendant raised the ineffective assistance allegation on direct appeal for the first time. Because the trial court did not address this issue, CA refused to do so either.

In a 2-1 decision, CA affirmed the trial court's denial of the defendant's 11.42 motion. There was no due process violation because the defendant pleaded guilty to conspiring to manufacture meth.

CA affirmed the TC's denial of Washington's motions for postconviction relief. Because he pleaded guilty to various nonsupport offenses which necessarily involved his admission to fathering children, he could not now contest paternity of the same children in his postconviction motions.

There was sufficient evidence to support Hudson's conviction for Fleeing and Evading. All other allegations of error were rejected.

TC did not err by refusing to instruct the jury on Assault in the Fourth Degree and Theft by Extortion because there was no evidence to support either. Butler's convictions were affirmed.

MCGINNIS V. COM.
CRIMINAL - CR 60.02 denial
2005-CA-000102
NOT PUBLISHED
AFFIRMING (MCANULTY)
DATE: 3/17/2006

It was not clearly unreasonable for the jury to find guilt; (2) there was no error in the jury instructions; and (3) the trial court did not abuse its discretion in allowing the prosecution to examine potential jurors as to the dangers of possessing with the intent to sell a simulated controlled substance.

FRYERSON V. COM.
CRIMINAL - Withdrawal of Plea
2005-CA-000293
NOT PUBLISHED
AFFIRMING (VANMETER)
DATE: 3/17/2006

BATES V. MOTLEY
CRIMINAL - Prisons and good time credit
2005-CA-000760
NOT PUBLISHED
AFFIRMING (TAYLOR)
DATE: 3/17/2006

After considering the totality of the circumstances, we agree with the trial court that Walling’s consent to the searches was voluntary and not the product of duress or coercion.

The COA reversed a summary judgment granted in favor of the employer in dismissing a a complaint for discriminatory discharge. The plaintiff “may establish discrimination either by introducing direct evidence of discrimination or by proving inferential and circumstantial evidence which would support an inference of discrimination.

As Lewis (employee) did not offer direct evidence of discrimination, the circuit court did not err in holding that Lewis must prove his circumstantial evidence case pursuant to the McDonnell Douglas burden-shifting paradigm. The McDonnell Douglas paradigm “assures the plaintiff his day in court despite the unavailability of direct evidence” as “a procedural device [that establishes] an order of proof and production.” The fact-finder in a discriminatory discharge case must focus on the employer’s motivation, not on the soundness of its business judgment.

Reviewing this evidence in the light most favorable to Lewis, Intec was found to have shown that employee could not prevail under any circumstances. Rather, the United States Supreme Court has explained that “a plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” The employee Lewis presented sufficient evidence for a jury to find that Intec’s proffered reason of “cutting costs” is pretextual. Therefore, the evidence could support a jury’s conclusion that Intec unlawfully discriminated.

Police officer appealed summary judgment dismissing his complaint alleging due process violations relating to the termination of his employment. AFFIRMED.

KRS 15.520(2) permits a police officer to contest a finding of guilt by filing a circuit court claim which “shall be tried as an original action,” although the review itself “is limited to a determination of whether the administrative body acted arbitrarily in deciding whether the employee violated the rules and regulations of the police department.”

Here, police officer's allegation that appellees failed to comply with statutory requirements, and that he therefore was denied due process, constituted a defense to the charges against him. However, he waived that defense by deliberately refusing to appear and raise it either during the scheduled hearing or during an appeal from the administrative order terminating his
employment. By failing to timely appear and raise his due process defense to the administrative proceedings below, he was estopped from later raising the matter as an issue in a collateral attack, and the circuit court did not err by granting appellees’ motion for summary judgment and dismissing the matter below

HALE V. HALE
FAMILY LAW - Value of damage to marital asset intentionally inflicted by spouse
2004-CA-002546
NOT PUBLISHED
VACATING AND REMANDING (SCHRODER)
DATE: 3/17/2006

Wife ordered to surrender real estate to husband at termination of her exclusive possession. $31,000 worth of damage done by wife immediately prior to surrender which lowered the fair market value of the real estate between $13,000 and $18,000. Both parties agree that Ellison v R & B Contracting, Inc., , 32 S.W.3rd 66 (Ky. 2000) controls - “the full amount of repair costs for damage to real property is recoverable only if the injury to the property is temporary - where the cost to restore the property to its original state is less than the amount by which the injury decreased the property’s value”. The trial court, who awarded the husband the full amount of repair costs, was overturned by the Court of Appeals, which found that the trial court did not use the correct fair market value of the real estate prior to the damage. The value ($98,000.00) had been set by an appraiser when he appraised the real estate prior to the damage and which (presumably) had been used by the parties in their property settlement agreement. That appraisal had specifically mentioned and discounted the PVA valuation ($120,000.00) in excess of the appraisal’s opinion of fair market value. The trial court in its determination of damage to the real estate adopted a higher pre-damage value ($115,000.00) based on a mention in a letter, post-damage, by the same appraiser.

The Court of Appeals said there was no basis for this higher value and reversed and remanded the case for re-calculation of the damage formula based on the before-damage valuation by the appraiser ($98,000.00). Wife denied that she caused the damage or that there was sufficient evidence to hold her responsible. The Court of Appeals found that the Trial Court had ample evidence to find the wife culpable. Even though there was no direct evidence - ie no one testified that wife was observed causing the damage - a civil claim may be proved by circumstantial evidence so long as it goes far enough to induce a reasonable conviction that the facts sought to be proved and true and tends to eliminate other rational theories. Wife was in exclusive possession of the residence; a friend of wife and her daughter both testified to observing some of the damage; it was obvious that some of the damage had to be inflicted intentionally and not merely in relation to wife moving out her furniture and other belongings (for instance, the acid burns on the carpet, broken toilet and vanity, and stake through the air conditioner), the divorce was bitter, and the parties had a nasty dispute with one another about taking possession of the property the day before Husband found the damage; the time between the vacating by Wife and taking possession by Husband was less than three days.

BIERBAUM V. BIERBAUM
FAMILY LAW - Domestic Violence Petition (retaliatory allegation)
2005-CA-001447
NOT PUBLISHED
AFFIRMING (MCANULTY)
DATE: 3/17/2006

The parties to this action, while in the midst of their divorce, appeared before Jefferson Circuit Court, Family Division on the domestic violence docket. Appellee brought the Petition, alleging that Appellant inflicted physical injury during an argument about the parties’ undivided property. Appellant filed a counterpetition. The trial court entered a domestic violence order and found that Appellant’s counterpetition was retaliatory. On appeal, the Court restated the statutory 1) definition of domestic violence, 2) threshold requirement for entering a Domestic Violence Order, and 3) the burden of proof placed upon Appellee. The Court found no error with the findings and conclusions of the trial court. Without further comment, the Court noted that the appeal was ill advised in light of the finding of the trial court that Appellant’s counterpetition was retaliatory.

BOWMAN V. BOWMAN
FAMILY LAW
2005-CA-001198
NOT PUBLISHED
REVERSING AND REMANDING (DYCHE)
DATE: 3/17/2006

In this appeal, the ex-wife (Donna) did not file a brief; ex-husband/father (David) did file brief. In such case the COA noted it was authorized to (i) accept the appellant’s statement of the facts and issues as correct; (ii) reverse the judgment if appellant’s brief reasonably appears to sustain such action; or (iii) regard the appellee’s failure as a confession of error and reverse the judgment without considering the merits of the case. CR 76.12(8)(c).

COA opted for (ii) and found that the physical altercations between the child and his mother, and the fact that the child has failed the eighth grade once, and was perilously close to repeating that feat, to support David’s motion. The Commissioner was equally concerned, but found these factors to be outweighed by the move from Kentucky to Ohio.

As David’s brief supported reversal, the order of the Greenup Circuit Court is reversed, and this matter is remanded for entry of an order consistent with this opinion.

Police officer only entitled to UIM coverage benefits only if injured in MVA while occuppying covered vehicle under city's insurance policy. The policy provided that “[t]hrough out this policy the words ‘you’ and ‘your’ refer to the Named Insured shown in the Declarations.” The named insured was the City of Independence.

In Ohio Casualty Insurance Company v. Stanfield, Ky Supreme Court indicated that a similar policy issued to a corporate employer did not include employees within the class of named insureds. Employees were covered, rather, only if injured while occupying a covered vehicle.

Heirs have right to access cemetery as a matter of law even though farm sold without mention of cemetery and in absence of deed of reservation.

CA reverses and remands TC order enforcing settlement on the basis that appellants' attorneys had authority to settle. (Fayette Cir. Ct., Hon. Sheila R. Isaac, judge, presiding).

Appellants and appellees are beneficiaries of a decedent's estate, plus National City Bank as administrator. National City sued appellants in Arizona for a debt owed to the estate, receiving a judgment for $160,000. Appellants sued one of the individual appellees for improprieties during his tenure as the decedent's guardian. Arizona counsel for the appellants proposed a "global" settlement to KY counsel for National City. National City counsel states that AZ counsel agreed to settle the matter and National City counsel forwarded settlement documents with a cover reflecting the negotiated settlement. Appellants balked, claiming they never gave AZ counsel authority. The TC enforced the settlement agreement.

CA reverses, holding that National City is unable to point to anything in the record to contradict appellees's and AZ counsel's affidavits that counsel did not have actual authority to settle. Case remanded to determined, factually, whether appellees would suffer substantial harm if the settlement were not enforced.

CA affirms TC order enforcing settlement (reached with the aid of a different circuit court judge). CA finds no clear error.

In this MVA, passenger (Perry) sued the other driver (Parks) who third-partied Perry's driver (Smith) and passenger Perry amended suing his driver (Smith). However, the trial court granted summary judgment dismissing Perry's claim against his driver, but the third party complaint was not dismissed and went to the jury for purposes of apportionment. At trial, the other driver Parks introduced evidence from accident reconstructionist that he/Parks was not negligent and that the driver of the plaintiff's car was negligent. The jury exonerated Parks (not at fault), and this appeal ensues.

COA held that absent an allegation of fault, the trial court did not err by ruling that Perry’s claim against Smith must fail.

KINNER V. TOYOTAL MOTOR MANUFACTURING OF KENTUCKY
WORKERS COMPENSATION - Judicial Admissions
2005-CA-001489
NOT PUBLISHED
AFFIRMING (MCANULTY)
DATE: 3/17/2006

The claimant’ shoulder injury was litigated as a work related injury and an agreed order was entered which the claimant argued had the effect of a judicial admission that the shoulder injury was work related. However, the issue was listed as a contested issue at the benefit review conference, and the ALJ found that the claimant had not proven that the injury was work related. The Board and the Ciourt of Appeals affirmed, holding that the workers’ compensation rules do not allow the discovery practice of requests for admissions. The fact that the issue was listed as contested, however, precluded it from being an admitted element of the claim. This case demonstrates the tricky nature of the BRC, where multiple issues are listed as contested and signing the BRC order can be construed as a waiver of those not listed. However, the ALJs rarely enforce the rule that issues which are not truly contested should not be set out as contested issues. However, if the attorney felt that causation of the shoulder injury was admitted, that issue could have been listed as an additional issue for the judge to decide.