COA Decisions - Mar. 31, 2006 (Vol. 2006:16)

MANUS V. TERRY MAXEDON HAULING, INC.
CIVIL PROCEDURE - Discovery (requests for admission, deemed admitted)
2004-CA-002472
PUBLISHED
AFFIRMING; GUIDUGLI
DATE: 3/31/2006

COA affirmed trial court's granting of summary judgment in favor of plaintiff following requests for admissions that were deemed admitted for failure to answer. COA could not identify any abuse of discretion in the circuit court’s decision not to set aside its order deeming the Requests for Admission as admitted. Maxedon Hauling served the discovery request well after the expiration of the thirty-day time period the circuit court allowed Manus to retain new counsel and there is no dispute that Manus’s president received the request.

CA affirmed Jefferson Circuit Judge Martin McDonald's grant of a writ of prohibition of mandamus against Jefferson District Judge Donald Armstrong following his order denying the Commonwealth's motion for Defendant's medical records. The Commonwealth is entitled to obtain the Defendant's blood test results from the University of Louisville Hospital for use in prosecuting him for the offense of driving under the influence (DUI).

The U.S. Secretary of Health and Human Services promulgated regulations pursuant to HIPAA in order to restrict and define the ability of covered entities (health plans, health care clearinghouses, and health care providers) to divulge patient medical records. See Tapp v. State, 108 S.W.3d 459, 462 (Texas Ct.App. 2003). Pursuant to those regulations, as a covered entity, the hospital is allowed, under certain circumstances, to disclose protected health information without the written authorization of the individual or the opportunity for the individual to agree or object. 45 C.F.R.1 164.512. As the regulations pertain to this case, a covered entity may disclose protected health information in the course of any judicial or administrative proceeding in response to a court order. 45 C.F.R. 164.512(e). 1 Code of Federal Regulations.

The pertinent language in the regulation allows covered entities to disclose protected health information:

In compliance with and as limited by the relevant requirements of: (A) A court order or court-ordered warrant, or a subpoena or summons issued by a judicial officer[.]

See 45 C.F.R. 164.512(f)(1)(ii)(A). HIPAA and the regulations implementing it impose no new requirements where disclosure is sought by court order. The issue is the Commonwealth’s right to obtain evidence in the form of medical records that are in the possession of a hospital after a defendant’s blood sample has been taken voluntarily in the course of medical treatment. We conclude that our holding in the Osborne v. Commonwealth, 867 S.W.2d 484 (Ky.App. 1993) case gives the Commonwealth this right.

In short, while we decline to hold that courts should order the discovery of medical records in all cases and under all circumstances, it is clear that in this case the circumstances entitle the Commonwealth to obtain the records. Further, we conclude that the circuit court did not abuse its discretion in granting the writ based on irreparable harm to the Commonwealth because, as the court noted in the Maricle case, the Commonwealth would have no adequate remedy by appeal in the event Rowland is acquitted.

CA vacated Circuit Court order denying Defendant's RCr 11.42 motion alleging ineffective assistance of counsel without a hearing.

Padilla did not receive a hearing on his claim. The record does not refute his allegation that counsel affirmatively assured him he would not be deported as a result of pleading guilty; nor does it refute his claim that but for counsel’s mistaken advice, he would not have pled guilty. We are persuaded that counsel’s wrong advice regarding deportation could constitute ineffective assistance of counsel pursuant to Sparks, supra. Thus, as there are relevant and substantial issues of fact that cannot be resolved by an examination of the record, we conclude that Padilla is entitled to an evidentiary hearing on his motion. See, Fraser v. Commonwealth, 59 S.W.3d 448 (Ky. 2001).

After completing his sentence of probation for a felony drug conviction, Hays filed a CR 60.02 motion seeking to have his conviction vacated. The court held an evidentiary hearing and later entered an order denying this motion. Hays then moved the court to amend its prior order denying his 60.02 motion. This maneuver had the effect of tolling his time for an appeal from the denial of his motion. However, the court ultimately denied the motion to amend its prior order. The clock for his appeal began ticking once again. Rather than filing an appeal, however, Hays filed a motion to reconsider the denial of his motion asking the court to amend its earlier order denying his 60.02 motion. The court summarily denied the motion to reconsider. Hays then filed an appeal from the denial of his 60.02 motion. However, the trial court and CA held that it was untimely. Both courts rejected his argument that the filing of his motion to reconsider had essentially tolled the appeal deadline yet again. They reasoned that, under these circumstances, the Civil Rules do not allow for a second tolling of the appeal deadline. See Cloverleaf Dairy v. Michels, 636 S.W.2d 894, 896 (Ky. 1982).

The Courier-Journal appealed order of the Jefferson Circuit Court denying access to performance evaluations of employees of the Louisville and Jefferson County Parks Department who had been accused of criminal wrongdoing in the course of their duties. The Courier-Journal sought access to the records under the Open Records Act, Kentucky Revised Statute (KRS) 61.870 et seq.

Judge Abramson had ruled that even though the records are public records within the meaning of the statute, they are exempt from disclosure under the privacy exemptions found in KRS 61.878(l)(a). The Courier-Journal argued on appeal that the public’s interest in the doings of a public agency outweighs the privacy interest of particular employees in non-disclosure of their performance evaluations, particularly when the employee has committed a criminal act.

COA agreed with the Courier-Journal and reversed the circuit court and order that the Courier-Journal receive redacted versions of the evaluations, with all personal information removed.

NOTE: The trial judge who was reversed in this matter is Jefferson Circuit Court Judge Lisabeth Hughes Abramson who will be serving on the Kentucky Court of Appeals next year after filing for the vacant seat and having no opposition in the upcoming election.

The circuit court did not have jurisdiction over this dispute since the Kentucky Boundary Line Fence Act ( KRS 256.030 and KRS 256.042) vests jurisdiction in the district court, to wit: KRS 256.042 provides that “[t]he District Court shall have exclusive jurisdiction over all actions arising under this section or KRS 256.030.” Hence, jurisdiction over claims arising under the Fence Act are vested exclusively in the district court.

On appeal and cross-appeal, CA affirms jury verdict of $120K for employee in wrongful discharge case.

Appellee was a truck driver who fell and sprained his wrist. He had had three on-the-job accidents that the employer had determined to be "preventable," i.e., that the employee was negligent in some way. This made the employee subject to discipline. Initially he was told to view workplace safety videos during his convalescence, but was discharged shortly thereafter. He sued alleging retaliatory discharge for seeking WC benefits. CA held that "sufficient evidence existed for the jury to believe that Mullen might have been terminated in retaliation for seeking WC benefits and for it also to conclude that Griffin's safety violation defense might have been a mere pretext."

Appeal dismissed since order was not final and appealable since the language was not used and did not adjudicate all the claims for relief.

TAYLOR COUNTY BROADCASTING CO., INC. V. TAYLOR COUNTY BANK
CIVIL PROCEDURE - Dismissal for lack of prosecution
2004-CA-001896
NOT PUBLISHED
AFFIRMING - MCANULTY
DATE: 3/31/2006

COA affirmed dismissal for lack of prosecution claim of Taylor County Broadcasting Company, Inc. for breach of fiduciary duties and improper foreclosure on collateral against Taylor County Bank (the Bank) stating almost 18 years had passed and the Broadcasting Company had not made a reasonable effort to prosecute the action. Dismissed the action with prejudice.

Ex-wife sues seller of property (Davidson) to her and her ex-husband after seller sues ex-husband to reject him from property for failure to pay rent, arguing that seller had defrauded her in representations made during her and her ex-husband's sale of separate property. TC dismissed ex-wife's action on the basis of res judicata since issue regarding terms of her sale of separate property to Davidson had already been litigated in Davidson's earlier action against her ex-husband.

Held: COA affirmed the TC's dismissal of ex-wife's action since she was in privity with ex-husband due to co-ownership of the property sold by Davidson for which the ex-husband was sued in the earlier action. COA ruled that collateral estoppel applied to prevent her subsequent action against Davidson.

SABA, M.D. V. ST. JOSEPH HEALTHCARE, INC.
CIVIL PROCEDURE - Dismissal (sanctions) for failure to prosecute
2005-CA-000917
NOT PUBLISHED
AFFIRMING; MILLER
DATE: 3/31/2006

COA affirmed dismissal of lawsuits of physician and wife against against Saint Joseph Healthcare, Inc. (Saint Joseph) and Lyle Myers, M.D., for failing to diligently prosecute their lawsuits and for failing to comply with an order of the circuit court to timely obtain a substitute attorney to represent them in the actions.

The lawsuits concern an employment dispute involving the suspension of Dr. Sabo following untrue allegations of sexual abuse made by a patient.

CR 41.02(1) provides that “[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of the court, a defendant may move for dismissal of an action or of any claim against him.”

Factors to consider in dismissing for dilatory conduct of counsel, trial courts should consider the Scarborough case and these relevant factors: 1) the extent of the party's personal responsibility; 2) the history of dilatoriness; 3) whether the attorney's conduct was willful and in bad faith; 4) meritoriousness of the claim; 5) prejudice to the other party, and 6) alternative sanctions. Although CR 41.02(1) refers to dismissal of an action or a claim therein as the sole remedy for a violation of the rule, a sanction less than dismissal is also appropriate.

Application of CR 41.02 is a matter that is within discretion of the trial court. Thompson v. Kentucky Power Co., 551 S.W.2d 815, 816 (Ky.App. 1977).

BANDY V. NORFOLK SOUTHERN RWY CO.
CIVIL PROCEDURE - Discovery (spoliation of evidence)
2005-CA-000219
NOT PUBLISHED
AFFIRMING; BARBER
DATE: 3/31/2006

Bandy appeals TC's dismissal of her complaint asserting a cause of action for violation of KRS 524.100 by appellee that occurred during Bandy's earlier personal injury action against them filed on behalf of her deceased husband. In the underlying tort action, TC ruled that the appellee's discovery conduct constituted spoliation of the evidence and discovery abuse. TC therefore granted Bandy the remedy of a "missing evidence" jury instruction. After jury verdict for Bandy, she sued appellee pursuant to KRS 446.070 and sought recovery per KRS 524.100, which permits recovery for individuals injured by another's violation of a statute -- in this case, the statute prohibiting tampering of evidence. TC granted appellee's motion for judgment on the pleadings, finding that the issue of spoliation had been adjudicated in earlier tort action.

Held: COA affirms the TC's dismissal by reiterating that no separate action for spoliation of evidence exists per the Kentucky Supreme Court's decision in Monsanto v. Reed, 950 S.W.2d 811 (Ky. 1997).

SCOTT V. COM.
CRIMINAL
2004-CA-000039
NOT PUBLISHED
AFFIRMING (KNOPF)
DATE: 3/31/2006

Because Scott’s trial was not marred by palpable error, and because the trial court properly admitted Dr. Stanley’s testimony opining that a normal physical exam was consistent with a claim of illegal sexual contact, CA affirmed Defendant's conviction for Sexual Abuse - 1st Degree.

Having viewed the facts in the light most favorable to the Commonwealth, having committed credibility determinations to the discretion of the trial court, and having considered the totality of the circumstances, CA found no basis to disturb the ruling of the trial court that wife of Defendant consented voluntarily to the search of her residence. CA did not consider the circumstances to be evidence of an unlawful purpose or a flagrant abuse of police power and agreed with the trial court that wife's consent in this case was a sufficient intervening circumstance to purge the illegality of Defendant’s illegal arrest.

CA affirmed Defendant's conviction and 5 year sentence for sex offenses. Defendant was not entitled to a continuance due to alleged discovery violation. The testimony supported the giving of an instruction including forcible compulsion.

Following a criminal conviction, a defendant who seeks a new trial based on allegedly perjured testimony must prove both a reasonable certainty as to the falsity of the testimony, and that the conviction probably would not have resulted had the truth been known.

The Kentucky Supreme Court has held that a diverted offense, where the diversion program is not complete, can be the predicate for a persistent felony offender charge. Thomas v. Commonwealth, 95 S.W.3d 828, 830 (Ky. 2003).

CA reversed and remanded Allen's case to the trial court for further proceedings. According to the Court, Trial counsel's failure to investigate the case law and statutes surrounding registration of sex offenders fell outside the range of competent professional assistance. It is reasonably probable that Allen would not have pleaded guilty to a felony if his counsel had done the proper research showing that Allen's conduct was punishable only as a misdemeanor.

JENKINS V. HENDERSON
CRIMINAL - Prison sentence adjustment hearing due process and calling witnesses
2005-CA-000664
NOT PUBLISHED
AFFIRMING IN PART, REVERSING IN PART AND REMANDING; HUDDLESTON
DATE: 3/31/2006

BURDELL V. MORGAN
CRIMINAL - Prison discipline
2005-CA-000276
NOT PUBLISHED
AFFIRMING; MINTON
DATE: 3/31/2006

PRESTON V. LT. COMPTON
CRIMINAL - Prison discipline
2004-CA-002121
NOT PUBLISHED
AFFIRMING; VANMENTER
DATE: 3/31/2006

Affirmed court denial of declaratory judgment pertaining to prison disciplinary proceeding.

WRIGHT V. HIGHLAND CLEANERS, INC.
EMPLOYMENT - Constructive discharge due to sexual harassment
2005-CA-000413
NOT PUBLISHED
REVERSING AND REMANDING ; TAYLOR
DATE: 3/31/2006

DUNGAN V. DUNGAN
FAMILY LAW - Valuation of business/denial of maintenance award
2004-CA-000422
NOT PUBLISHED
AFFIRMING (BARBER)
DATE: 3/31/2006

Valuation of husband’s veterinary practice. “A business cannot be considered marital property without a showing of involvement or support by the spouse claiming an interest in it. Travis v Travis, 59 S.W.3d 904, 910.(Ky. 2001)” A veterinary business specializing in large animals run by the veterinary, alone, cannot be valued for its “goodwill” unless the business shows an above average income range as compared to similar businesses. A specific showing of the special nature of the business must be shown in order to warrant a finding that the business possesses goodwill that can be valued.

Maintenance. The following fact situation shows that an award of maintenance to wife by husband is not necessary: Husband’s taxable income averages approximately $67,000.00; wife has nonmarital assets of $107,079; marital assets of $12,815 plus an equalization payment to be made by husband of $87,784; and $200,000 for her half value of the sale of the marital real estate; one child age of 12 with no special needs requiring Wife to remain at home; Husband ordered to pay child support according to the schedule; Wife has a degree as a psychiatric registered nurse, in good health, and age 38.

The parents were married to one another when they moved to Kentucky from Oklahoma. When their child was one year old, and the parents had not “been in Kentucky long” they were arrested. The child was placed in foster care on July 9, 2002, (one week after her first birth day); the parents were released from jail, the Cabinet worked with them to reunify them with their child but the parents returned to Oklahoma in October 2002; the parents continued to have domestic violence, substance abuse and neglect issues in Oklahoma and didn’t visit their child in Kentucky. In July, 2004, the Cabinet moved for termination; a trial was held in November, 2004, and a mental health professional, the chief of police of the town where the parents lived; and a social worker from the Oklahoma Department of Human Services all appeared in person to testify at trial. The opinion does not state at length the evidence presented upon which the Court made its decision, reciting instead the statutory provisions, but does affirm the trial court’s termination. (The parents had one other child together and father had four other children; all of whom lived with these parents. However, the Kentucky Cabinet did not have jurisdiction over these children, so the fact that they remained living with the parents was not relevant evidence in a termination proceeding concerning the infant who did live in Kentucky.)

A.C.D.D. V. M.S.D.
FAMILY LAW
2005-CA-000472
NOT PUBLISHED
AFFIRMING; BARBER
DATE: 3/31/2006

Having agreed that Husband was the father of child in marital settlement agreement, Wife could not later make a motion to set aside that portion of the divorce decree stating that Husband was the father of the child. Wife sought to have court rule that Husband was not the father so that she could establish paternity of deceased natural father, thereby entitling child to social security benefits, and because she believed she should not have to co-parent the child with Husband.

CA held that “even if [Wife] had the right to relitigate the paternity issue, which we believe she does not, a determination of paternity only goes to the issue of who must provide financial support for a child, and does not affect the rights, duties or obligations of the person who has supported and cared for the child as a parent… Kentucky law has long held that where paternity has been stipulated in a divorce decree, the parties are precluded from litigating the issue at a later date.”

M.R.S. V. P.M.S.
FAMILY LAW
2005-CA-000701
NOT PUBLISHED
AFFIRMING; TACKETT
DATE: 3/31/2006

Stepdad appealed TC’s order denying his petition to terminate the parental rights of Dad, claiming that Dad had abandoned child. CA agreed with TC, holding that “ ‘abandonment’, for purposes of the statute, requires more than simply failure to exercise visitation rights” and that the fact that Dad had not seen child since 2003 and had a lapse in child support was outweighed by his intent to rebuild his relationship with the child.

The Cabinet for Health and Family Services appeals the dismissal of its Involuntary Petition to Terminate Parental Rights by the trial court. The Cabinet sought to terminate Appellee’s parental rights on allegations that the child was left unattended in dirty and unsafe conditions, that Appellee’s were using illegal drugs, and that their minor child was not receiving necessary medical services and therapy even though they were provided free of charge. At trial the Cabinet called a social worker who testified as to her experience with the family for a period of three and one half years. No other witnesses were called by either party, including the Appellees. The trial court declined to grant the Cabinet’s Petition.

The Court criticizes the trial court for summarily concluding that the Cabinet failed to prove by clear and convincing evidence that the minor child was abused or neglected as defined by KRS 600.020 (1); termination would be in the child’s best interest; and grounds for termination exist as defined by KRS 625.090. The Court states that a trial court must make its findings of fact with specificity and not summarily. The Court notes that, under the clear and convincing evidence standard, unrefuted evidence alone is not sufficient to meet the burden of proof. The Court states that clear and convincing evidence must be “clear and convincing both in quantity and quality to the satisfaction of the trial court”. The case was remanded to the trial court for more specific findings pursuant to the statutory scheme and the Rules of Civil Procedure.

SANTA CRUZ CATTLE CO., INC. V. BLACK FOREST RIDING ACADEMY, LTD.
PROPERTY - Real estate (easements)
CIVIL PROCEDURE - Summary judgment and unresolved issues
2004-CA-002266
NOT PUBLISHED
AFFIRMING IN PART, VACATING IN PART AND REMANDING; BUCKINHAM
DATE: 3/31/2006

CECIL V. WALGREEN CO.
TORTS - Failure to report suspected child abuse (photos developed by third party!)
2005-CA-000571
NOT PUBLISHED
AFFIRMING; BUCKINGHAM
DATE: 3/31/2006

CA affirms SJ dismissal of plaintiff's statutory claims for violation of duty to report child abuse and exploitation of children.

When 14 years old appellant was sexually exploited by someone she met online. The perpetrator took photos of the abuse; the photos were developed at a Walgreens store. Appellant sued Walgreens under KRS 620.030 for failure to report the abuse and under 18 USC ss 2251-2253 for producing a visual depiction of a minor engaging in sexually explicit conduct.

CA affirms TC entry of SJ. Appellant plead that Walgreens failed to examine the photos as they were processed and therefore failed to discover and report the abuse. CA holds that KRS requires reporting of known or reasonably suspected abuse; it does not impose a duty to discover abuse. CA also cited other case law in determining federal statute did not apply to a commercial photo processor which is unaware of the explicit nature of the visual depiction.

CLARK V. ELMO GREER & SON
WORKERS COMPENSATION - Date of MMI
2005-CA-001504
NOT PUBLISHED
AFFIRMING; HUDDLESTON
DATE: 3/31/2006

COA affirmed the WCB and ALJ who had found the claimant had failed to present any affirmative proof as to when he reached maximum medical improvement (MMI), thereby foreclosing TTD benefits. Consequently, the ALJ determined that Clark reached MMI on the day after the accident, and PPD benefits were payable from that date forward.

The AMA Guides define MMI as “[a] condition or state that is well stabilized and unlikely to change substantially in the next year with or without medical treatment. The ALJ relied on the medical report which found no impairment to worker's back and related negative MRI findings to a pre-existing lower back injury. COA agreed with the Board’s findings affirming the ALJ.