Vol. 2006:25 - COURT OF APPEALS DECISIONS FOR May 19, 2006

PUBLISHED (COA).

SLONE V. CASEY
APPEALS: Failure to join indispensable party and dismissal of appeal (administrator of estate in her representative and individual capacity)
2004-CA-002348
PUBLISHED 
DISMISSING; TAYLOR
DATE:  5/19/2006

Administratrix of husband's estate brought action concerning a property boundary in her capacity as Adm'x.  CA dismissed, holding that she had no interest in the property in that capacity (as property passes directly to heirs at law or beneficiaries in will, not thru estate); also, seeing as how she held the property as tenant in common with husband, she herself was an indispensable party to appeal.

KY. TRANSPORTATION CAB. V. GUFFEY
BOARD OF CLAIMS: Contributory negligence not applicable to claims against highway department 
2004-CA-002051
PUBLISHED
AFFIRMING;  JOHNSON W/GUIDUGLI DISSENTING AND POTTER CONCURRING IN RESULT ONLY
DATE:  5/19/2006

In this board of claims action, the COA held that contributory negligence of the decedent in operating an ATV illegally on the highway was not a bar to the claim of the estate and applied the comparative negligence standard to his conduct.  Furthermore, motorist was killed by a wire hanging across the road, and the highway department owed duty to motorist to keep highway in reasonably safe condition for travel, to provide proper safeguards, and to give adequate warning of dangerous conditions in highway, so as to render cabinet liable for motorist's death due to collision with suspended cable across highway.

COM. V. SPALDING
CRIMINAL:  Search and seizure
2005-CA-001315
PUBLISHED 
REVERSING; MINTON
DATE:  5/19/2006

Police did not violate 4th Amendment by stopping car as minimal intrusion when compared to checking on someone life when reported heard someone screaming from car.  Merely extending arm was not a seizure by the police officer.

CAB. FOR HEALTH AND FAMILY SERVICES V. C.V.
FAMILY LAW:  Termination of parental rights (statutory requirements and burden of clear and convincing evidence)
2005-CA-000923
PUBLISHED  
DATE:  RENDERED 4/7/2006: ORDERED PUBLISHED: 5/19/2006 CA agreed with CFC that Cabinet was not required to amend its permanency goal in the district court from reasonable efforts/reunification to termination/adoption prior to the filing of a petition to terminate the parents’ rights, because per KRS 625.090(3)(c), the court can make its own concurrent finding as to reasonable efforts.  However, in the case below, the circuit court failed to make any finding or conclusion that supported termination of parental rights.  Thus, due to this technical error, the parents of C.V. could not have their rights terminated, despite evidence in the record that both parents had engaged in drug-related lifestyles.  CA’s opinion stated:  “The parents have one more chance. Let us hope that they take the chance, for the child’s sake.”

NOT PUBLISHED (COA) .

LAMB V. DOBSON CELLULAR SYSTEMS, INC.
BUSINESS LAW:  Covenant not to compete
CIVIL PROCEDURE:  Summary judgment dismissing claim affirmed; Dismissal of counterclaim not error  
2005-CA-001219
NOT PUBLISHED 
DATE:  5/19/2006

This appeal involved a messy and contentious business lawsuit.  The original complaint was dismissed, which also included the counterclaim.  The defendant then attempted to amend the counterclaim, and lost, and this appeal ensued.  Issues on appeal included appellant's failure to comply with civil rules for filing brief (COA heard appeal anyway - "we note with disapproval that Appellants' brief is deficient because it does not contain an appendix with a copy of the orders from which this appeal is taken. This is required by CR 76.12(4)(c)(vii). Since the clerk's record of the proceedings in the circuit court contains over 1,000 pages, our review of Appellants' arguments would have been greatly aided had the Appellants followed the civil rules. We have chosen not to impose sanctions, but we urge Appellants' counsel scrupulously to obey the applicable civil rules in future cases.
"); Rule 11 granted in favor of defendant/appellee (affirmedd); judgment on pleading should have been  summary judgment and was affirmed as such; denial of attorney's fees under Uniform Trade Secrets Act; and dismissal of counterclaim (affirmed).

In addressing the counterclaim, the following is provided:

Although couched in terms such as abuse of process and tortious interference with business relationships, an examination of the proposed amended counterclaim reveals that it is, at its core, another claim by Appellants that Dobson's complaint was filed in bad faith and contains material misrepresentations. So for the same reasons discussed earlier, such claims cannot properly lie. And, as noted by the trial court, the case had been pending for over two years at the time the amended counterclaim was tendered and there is no indication that any newly discovered evidence had recently been unearthed which would have excused Appellants' belated motion to amend. So we agree with the trial court's conclusion that “[t]o allow the defendants to amend their counterclaim at this point would be counterproductive and would be unfair to the plaintiffs. The proposed amended counterclaims attack the plaintiffs in several areas in which they have dismissed their own causes of action. This would essentially require them to start the litigation over from the beginning, rehashing issues that they have voluntarily chosen not to pursue after years of litigation.” Accordingly, we find that the trial court did not abuse her discretion when she denied Appellants' belated motion to amend their counterclaim.

HURD V . WHITE
CIVIL PROCEDURE:  Dismissal (abuse of discretion by judge after attorney withdrew)
2004-CA-002060
NOT PUBLISHED 
DATE:  5/19/2006

DAVIS V. CITY OF LOUISVILLE/LOUISVILLE METRO GOV'T
CIVIL PROCEDURE: Motion for new trial (not result of bias, passion or prejudice) 
2005-CA-000321
NOT PUBLISHED 
DATE:  5/19/2006

PRICE V. GARCIA
CIVIL PROCEDURE:  Dismissal for lack of prosecution (set aside due to defendant's conduct for not being honest and forthright) 
2005-CA-000562
NOT PUBLISHED 
DATE:  5/19/2006

WADE V. COM.
CRIMINAL:  Affirmed trial court on actions taken after remanded from earlier appeal
2005-CA-001306
NOT PUBLISHED  
DATE:  5/19/2006

COMBS V. COM.
CRIMINAL:  Probation revocation and written conditions of release
2005-CA-001781
NOT PUBLISHED 
DATE:  5/19/2006

THOMPSON V. COM.
CRIMINAL:   CR 60.02 motion untimely
2005-CA-002178
NOT PUBLISHED 
DATE:  5/19/2006

DUNCAN V. COM.
CRIMINAL:  KRS 527.060 forfeiture of property to state
2004-CA-000832
NOT PUBLISHED 25 
DATE:  5/19/2006

MORRIS V. COM.
CRIMINAL:  RCr 11.42 relief denied re ineffective assistance of counsel
2004-CA-002482
NOT PUBLISHED 
DATE:  5/19/2006

SHIELDS V. COM.
CRIMINAL:  Sentencing (PFO)
2004-CA-002603
NOT PUBLISHED  
DATE:  5/19/2006

MASON V. COM.
CRIMINAL:  Search and seizure (incident to arrest)
2004-CA-002641
NOT PUBLISHED  
DATE:  5/19/2006

ABNEY V. COM.
CRIMINAL:  RCr 11.42 motion denied
2004-CA-002654
NOT PUBLISHED 
DATE:  5/19/2006

HOUSTON V. FLETCHER
CRIMINAL: Prison disciplinary proceedings (no right to retained or appointed counsel)
2005-CA-000015
NOT PUBLISHED 31 
DATE:  4/7/2006; ORDERED PUBLISHED: 5/19/2006

SIMS V. COM.
CRIMINAL:  11.42 denial
2005-CA-000506
NOT PUBLISHED 
DATE:  5/19/2006

M.A.S.  V. COM.
CRIMINAL:  Sex offender registration  
2005-CA-000567
NOT PUBLISHED 
DATE:  5/19/2006

POLK V. COM.
CRIMINAL: Sentencing (maximum)
2005-CA-000738
NOT PUBLISHED 
DATE:  5/19/2006

WADE V. COM.
CRIMINAL:  Affirmed trial court on actions taken after remanded from earlier appeal
2005-CA-001306
NOT PUBLISHED  
DATE:  5/19/2006

COMBS V. COM.
CRIMINAL:  Probation revocation and written conditions of release
2005-CA-001781
NOT PUBLISHED 
DATE:  5/19/2006

THOMPSON V. COM.
CRIMINAL:   CR 60.02 motion untimely
2005-CA-002178
NOT PUBLISHED 
DATE:  5/19/2006

MOSS V. MOSS
FAMILY LAW: Child support (college education, health insurance)
2004-CA-002404
NOT PUBLISHED 
DATE:  5/19/2006

BREWER V. BREWER
FAMILY LAW: Child support
2002-CA-001397
NOT PUBLISHED 
DATE:  5/19/2006

LUCKETT V. LUCKETT
FAMILY LAW:  Joint custody (affair by husband and seeing 'new' friend not sufficient to deny joint custody)
2004-CA-002143
NOT PUBLISHED 
DATE:  5/19/2006

WHITFORD V. WHITFORD
FAMILY LAW:  Allocation of court costs and attorneys fees (judge's discretion)
2005-CA-000797
NOT PUBLISHED  
DATE:  5/19/2006

COLLADO V. CAVE
FAMILY LAW:  Custody (review of fact finding by circuit court)
2005-CA-000878
NOT PUBLISHED  
DATE:  5/19/2006

CREECH V. CABINET FOR HEALTH AND FAMILY SERVCIES
FAMILY LAW:  Child support award (modification; proof)
2005-CA-000996
NOT PUBLISHED  
DATE:  5/19/2006

CARDINAL INDUSTRIAL INSULATION CO., INC. V. NORRIS
TORTS: Asbestos case; proximate cause standard ('substantial factor'); failure or defect (assigning liability)
2004-CA-000525
NOT PUBLISHED  
DATE:  5/19/2006

BRADFORD V. ANDERSON COUNTY BOARD OF EDUCATION
TORTS:  Defenses (recreational use statute's immunity for school board) 
2005-CA-000781
NOT PUBLISHED  
DATE:  5/19/2006

FRANKS V. LONE MOUNTAIN PROCESSING INC.
WORKERS COMP:  No authority to review on appeal issues never raised by lower court or with ALJ
APPEALS: Attorney is necessary party on appeal re attorney fees
2005-CA-002060
NOT PUBLISHED 
DATE:  5/19/2006

THOMAS V. KWIK SET
WORKERS COMP:  Substantial evidence
2005-CA-002185
NOT PUBLISHED  
DATE:  5/19/2006

BAKER V. INDUSTRIAL POWDER COATING
WORKERS COMP:  ALJ'S actions complied with WCB's directions
2006-CA-000076
NOT PUBLISHED 
DATE:  5/19/2006

 


Thanks to Scott Byrd,  John Hamlet, Cherry Henault, Sam Hinkle,  Chad Kessinger, Hays Lawson,  J. Russell Lloyd, Michelle Eisenmenger Mapes , Peter Naake,   Bryan Pierce,  Paul Schurman, Michael Stevens and James Worthington for their efforts in digesting Kentucky's appellate decisions.