Vol. 2006:15
COURT OF APPEALS DECISIONS FOR March 24, 2006
PUBLISHED.
JOHNS V. FIRSTAR BANK, NOCA affirms in part, reverses in part and remands this invasion of privacy/breach of contract case.
Johns sought financing
through Firstar to establish a juvenile detention facility. He
requested complete confidentiality because his father, superintendent of the
school board, had recently come under public scrutiny. Someone at the bank
leaked his involvement, torpedoing the deal. He sued for invasion of
privacy, breach of implied contract, breach of fiduciary duty and negligence. A
jury awarded him $250,000 for lost profits. CA affirms in part, reverses in
part, and remands, holding that jury award did not distinguish whether award was
for invasion of privacy, which did not apply, or breach of confidentiality.
Centre Estates, owner of undeveloped land zoned for agricultural use, filed an application to change the zoning classification of the property to commercial use in 1999. The application was denied. Centre Estates filed another application in 2002 to rezone the property for commercial use. After a hearing, the Danville-Boyle County Planning Commission (“Commission”) issued findings and recommendations (“Findings”) on the request recommending that the request be denied for five reasons, including the fact that there had been no significant changes in circumstances related to the property since the same request in 1999 and therefore the proposal should be denied by administrative res judicata. The City of Danville (“City”) adopted the Findings and denied the zone change request. Centre Estates appealed.
The circuit court found that Centre Estates’ application was not barred by administrative res judicata but that the application of the doctrine did not deprive Centre Estates of a fair hearing. The circuit court held that administrative res judicata did not apply because a zoning ordinance stated that the Commission may prohibit the reconsideration of a map amendment identical to a denied map amendment for only one year. The court also found that the Commission’s refusal to grant the zone change was arbitrary because the Commission found that the existing zoning was inappropriate but made no finding as to the appropriate zoning classification. The court remanded the matter to the Commission for adoption of findings as to the appropriate zoning classification and a recommendation to rezone the property according to such classification. The Commission appealed.
The court of appeals reversed, holding that the Findings were based on substantial evidence. According to the court, KRS 100.213(1) requires that there be findings both (1) that the existing zoning is inappropriate and (2) that the proposed zoning is appropriate to support a zoning map amendment. The court stated that neither finding was made by the Commission, reasoning that a finding that the existing zoning “may be inappropriate” does not equate to a finding that such zoning “is inappropriate.”
Although
stating it was unnecessary to reach the administrative res judicata issue, the
court nonetheless stated that it had “no quarrel” with the circuit court’s
ruling that the doctrine was inappropriately applied by the Commission.
Just another collateral estoppel case
with nothing terribly significant. Here the allegations raised by Lyndon Property against the fiscal court are not barred by the doctrine of collateral estoppel. Therefore,
COA vacated and remanded for further proceedings.
This lawsuit arose from a claim for
negligent care and supervision while the plaintiff was a minor under
foster parent care who permitted an explosive device to be within his
access. The plaintiff sued the foster parents, their homeowners
insurer filed a declaration of rights regarding coverage which was later
dropped, and the parties entered into an agreed order adding the foster
care agency (as opposed to the foster parents) as additional
defendants. At this time, the foster partents filed a third party
complaint for apportionment/indemnity etc. against the Agency alleging
the agency failed to apprise them of the plaintiff Robinson's dangerous
propensities. Robinson then amended his complaint to add the
Agency as a defendant. The Agency responded in its answer that the
claims were filed outside the Statute of Limitations of one-year.
The COA agreed affirming the dismissal of the claim against the
Agency. The statute expired one year after the minor turned 18 and
the amended complaint was filed several months too late.
Note that the Agency remained in the lawsuit since the third-party
complaint was for purposes of apportionment (also note that if the
recent legislation had passed then this claim against the agency would
not have been dismissed). In addition, the plaintiff raised new
issues on appeal which the COA would not address such as an entitlement
to amend his complaint as a matter of right under CR 14.01 after the
defendant filed the third party complaint.
JAMES
V. COM.
CRIMINAL
2005-CA-000661
NOT PUBLISHED
AFFIRMING (GUIDUGLI)
DATE: 3/24/2006
Although sentence for murder cannot be
enhanced by PFO status, Defendant was not entitled to dismissal of
criminal judgment.
MCNABB
V. COM.
CRIMINAL - Prior Bad Acts; Rebuttal
2005-CA-001016
NOT PUBLISHED
AFFIRMING (DYCHE)
DATE: 3/24/2006
TC properly allowed proof of prior bad acts as rebuttal evidence in sodomy prosecution. "Although the question is close, we cannot conclude that the trial court acted erroneously in admitting this evidence given the fact that McNabb’s statement was elicited on direct examination and that the DNA evidence tended to demonstrate a course of conduct between McNabb and D.H. that McNabb had denied."
Note: Evidently, it doesn't take much to "open the door" for the admission of damaging evidence previously ruled inadmissible.
Trial court's decision denying RCr 11.42 motion was affirmed.
JOHNSON
V. JOHNSON
FAMILY LAW - Divorce (Property)
2004-CA-001622
NOT PUBLISHED
AFFIRMING (COMBS)
DATE: 3/24/2006
The trial court did not abuse its discretion in awarding wife 45% of the cash asset upon divorce. COA noted wife was better educated and is still able to work, although the record also revealed her financial prospects are not much better than husband's circumstances. COA also found no abuse of the court’s discretion in awarding wife prejudgment interest.
YOST V. CORNERMom
appealed TC’s award of child support on several grounds. First,
Mom argued that the child support award that was initially set by
default by TC cannot be modified downward, or decreased, citing
Next,
Mom claimed that TC failed to correctly include Dad’s inheritance in
its determination of his income and assets. CA held that a
one-time inheritance is not properly considered as increasing the
beneficiary’s annual income, thus TC properly excluded the inheritance
from Dad’s income.
Mom
asserted that the two pay stubs provided by Dad at the trial are
insufficient evidence of Dad’s annual income. TC noted in its
ruling that Dad’s business was a new one, having been in existence for
less than six weeks at the time of the hearing, and that for this
reason, there were no tax returns or other supporting documents showing
annual income, profit or loss. TC actually attributed Dad with a
greater income than what his paychecks would have covered. Mom
also complained that the assignment of the annual tax deduction for the
minor child to Dad was in error. TC held that such an assignment
maximized the child support payable. CA disagreed with both of
these claims of error, holding that TC acted within its discretion with
regard to both.
This appeal was filed seeking a review of trial court’s decision with respect to its division and valuation of the parties’ respective retirement plans, its maintenance award, and its failure to award her attorney fees.
The propriety of including COLAs in the calculation of
retirement plans was supported by husband's expert witness, and his testimony is substantial evidence supporting the family court’s valuation of
wife's Kentucky Retirement Plan. This method is further supported by the holding in
Laurenzano v. Blue Cross and Blue Shield of Massachusetts, Inc. Retirement Income Trust, 134 F.Supp.2d 189 (D.Mass. 2001), a case
concerning a class action lawsuit brought on behalf of former participants in a Defined Benefit Pension Plan who received a lump sum distribution from the
plan in which the District Court held that under a Defined Benefit Pension Plan which normally
provided retirement benefits in the form of a life annuity that included a COLA, a lump sum distribution in lieu of the annuity was required to include the present value of the projected COLA
payments.
"It is axiomatic that a trial court retains broad discretion in valuing pension rights and dividing them between parties in a divorce proceeding, so long as it does not abuse its discretion in so doing in the sense that the evidence supports its findings and they thus are not clearly erroneous."
The findings of fact paragraph, conclusions of law paragraph, and ordering paragraph of the family court’s April 4, 2005, order are in conflict and irreconcilable both as to the amount and duration of maintenance. As a result,
COA was unale to undertake a meaningful review of this issue and accordingly vacated the maintenance award and remanded this issue to the family court for clarification.
Upon remand, the family court should clarify its award, and make findings of fact addressing the factors contained in KRS 402.200.
COA affirmed change of primary custodian noted the
commissioner's recommendation for a change in primary residential custodian was based on
father's (Campbell’s) repeated attempts to alienate the child from his mother and the resulting harm to the child.
Campbell enjoyed residential custody of the child for the first six years of his life; to argue that the court gave preference to the mother is disingenuous at best.
Appellee Smith’s objections to the transcript as provided are not properly taken and are rendered moot by our decision in this case.
The lower court erred in summarily dismissing her claims of gender and age discrimination and retaliation based on the Kentucky Civil Rights Act,
KRS 344 et seq.
ROSS
BROTHERS CONSTRUCTION V. MOORE
EVIDENCE - Expert testimony and speed of vehicle
2004-CA-001374
NOT PUBLISHED
VACATING AND REMANDING (SCHRODER)
DATE: 3/24/2006
Trial court erred in admitting opinion
testimony of non-expert police officer as to vehicular speed which was
properly within the province of an expert.
This appeal addressed whether or not a city has authority to delegate the daily operations of a city’s combined water and sewer department to a utility commission that is subject to the city’s oversight. COA held the ordinances in question delegate only ministerial duties and do not violate the “nondelegation doctrine” which prohibits the delegation of legislative powers. Therefore, affirmed the circuit court’s issuance of injunctive relief to prohibit the mayor from interfering with the commission’s work.
WALLER AVENUE, LLC V. JEFFERSONPartition
case. Court holds that lienholders do not need to be named in
partition action since the lien follows the interest of the party.
Thornberry Enterprises, Inc. (“Thornberry”) owned commercial property that the Kentucky Transportation Cabinet, Department of Highways (the “Department”) sought to acquire by condemnation. A panel of commissioners established the fair market value of the condemnation plus the fair rental value of temporary easements. Thornberry and the Department both filed exceptions to the commissioners’ award. A jury trial resulted in an award for Thornberry that was higher than the commissioners’ award. The Department was ordered to pay the difference between what it had deposited with the court clerk (the amount of the commissioners’ award) and the jury verdict. The judgment also ordered the Department to pay interest at the rate of 6% from April 5, 2001 through the date of judgment “and thereafter at the legal rate until paid.” Thornberry appealed the judgment, which was affirmed by the court of appeals.
The Department made known its intention to pay all interest at the rate of 6% and to not pay interest for the period during the prosecution of the appeal. Thornberry contended that the “legal rate” of interest of the judgment was 12%. The circuit court held that interest was to be calculated at the rate of 6% pursuant to KRS 416.620(5), and that Thornberry was not entitled to interest during the pendency of its appeal. Thornberry filed a second appeal.
The court of appeals affirmed the circuit court’s determination that interest was to be calculated at 6%, holding that Thornberry cited no law in support of the assertion that “the legal rate” meant anything other than the 6% found in KRS 416.620(5). The court reversed and remanded the circuit court’s determination that Thornberry was not entitled to interest during its appeal, stating that the filing of an appeal does not toll the accrual of judgment interest in the absence of an unconditional tender of the award by the judgment debtor. Because there was no evidence on the record of whether the Department made unconditional tender of the amount of the award and interest, the court remanded to the circuit court to make that finding and enter an order in accordance with its findings.
CLEMONS
V. METCALFE COUNTY BOARD OF EDUCATION
TORTS - Sovereign Immunity and Purchase of liability insurance
2003-CA-001044
NOT PUBLISHED
AFFIRMING (BARBER)
DATE: 3/24/2006
Metcalfe Circuit Court, Hon. Phillip R.
Patton
NICKELL
V. COMMUNITY ALTERNATIVES OF KY
WORKERS COMPENSATION - CARVE OUT
FOR PRE-EXISTING ACTIVE IMPAIRMENT
2005-CA-002140
NOT PUBLISHED
AFFIRMING (GUIDUGLI)
DATE: 3/24/2006
The cliamant was awarded a disability based on an 8% increase in impairment, enhanced by the triple multiplier for being unable to return to the job she was performing at the time of her injury. She actually suffered from an 18% impairment rating, but she had had an award for a 10% impairment previously for a different injury. She argued that her 18% impairment rating should be enhanced by the triple multiplier, then the dollar amount of the previous award deducted. The Board and the Court of Appeals held that her award should be based on the 8% impairment caused by this injury.
Thanks to Scott
Byrd, Patrick Bouldin, John
Hamlet, Cherry Henault, Sam Hinkle, Chad
Kessinger, Stephen
Keller, J. Russell Lloyd, Michelle
Eisenmenger Mapes , Peter Naake,
Bryan Pierce, Alma
Puissegur, Paul
Schurman, Michael Stevens and James Worthington for their efforts in
digesting Kentucky's appellate decisions.