MAY 25, 2007 KENTUCKY COURT OF APPEALS DECISIONS (2006:26)
MINUTES from AOC for this week saved at our site (No. 554-579 with 5 published decisions and click here for the AOC's Official Minutes [which is provided for backup purposes].
26 Decisions this week (554-579) with 5 published and 7 reversed, remanded or vacated
PUBLISHED (COA).
COM. V. HOLLOWAYJOHNSON V. COM.
CRIMINAL: Law Enforcement Jurisdiction
2005-CA-002173
PUBLISHED: AFFIRMING;
JUDGES: NICKELL PRESIDING; COMBS AND MOORE CONCURRING
DATE RENDERED: 5/25/2007
COUNTY: BREATHITT
CA affirmed TC's order denying Defendant's motion to suppress alleging lack of law enforcement jurisdiction. Discovery revealed that officers from several jurisdictions participated in the investigation of this and other drug-related cases under the purported authority of a multi-jurisdictional agreement executed pursuant to KRS 65.290-.300. This agreement formed an entity known as Unlawful Narcotics Investigations, Treatment and Education, Inc. (hereinafter “UNITE”). Johnson's sole contention is that the circuit court erred in ruling that UNITE had jurisdiction to act in a law enforcement capacity on January 19, 2004, despite having failed to comply with the statutory framework set forth in KRS 65.210 to 65.300. The uncontroverted evidence presented to the trial court reveals the criminal complaint, which was presented to the magistrate, was filed by a Jackson city police officer and the ensuing warrant was served by another officer from the Jackson Police Department. An undercover officer from an unknown agency was present when the OxyContin sale was consummated. There is no indication in the record that this officer had anything more to do with the investigation. It is further uncontroverted that the offense, arrest, and conviction all occurred within the corporate limits of Breathitt County. KRS 95.019(1) empowers the Jackson Police Department to make lawful arrests within the boundaries of Breathitt County. Although the officers involved referred to themselves as UNITE officers, they were actually employed by the City of Jackson and had been assigned by the chief of police to work on the recently formed task force. This assignment did not strip them of their statutorily granted arrest powers. Johnson is unable to point to any authority to the contrary.
Digested by Scott C. Byrd @ www.olginandbyrd.com
KRS 45A.470 expresses a policy that in procuring commodities and services, Governmental bodies are to give preference to certain agencies serving disabled persons. The Boone Circuit Court held that the Commonwealth of Kentucky, Finance and Administration Cabinet (Cabinet), in applying the requirements of the statute, failed to conduct negotiations with the qualified nonprofit agencies bidding on a contract for janitorial and maintenance services and ordered the Cabinet to resolicit bids for the contract.
COA held that such negotiations were not required under the facts presented, and we therefore
reverse disagreeing with the trial court's conclusion that the Cabinet is unable to freely incorporate the preference expressed by KRS 45A.470(1) into the conditions of whatever bid solicitations it makes. KRS 45A.080(1) expresses as a requirement of a competitive sealed bidding solicitation that
specifications can be prepared that permit award on the basis of best value[.]
COA ascertained no prohibition on the Cabinet seeking to comply with the preference expressed in KRS 45A.470(1), so long as it is able to do so within the context of preparing specifications which permit the award on the basis of best value.
The Cabinet correctly concluded that negotiations were not required in this case since BAWAC failed to offer a service at a price comparable to that offered by
CSP.
Since the decision of the Cabinet is entitled to a presumption of correctness and since, for the reasons stated above, the Cabinet was not required to conduct negotiations with the nonprofit organizations in this situation, it follows that the trial court erred in ruling that the Cabinet was required to reissue the bids.
The Order and Judgment of the Boone Circuit Court is reversed, and this matter is remanded to that court with the direction to reinstate the decision of the Cabinet
to award the contract to CSP.
by
Michael Stevens
CA affirms grant of directed verdict for appellee in this unusual premise liability case.Appellant was injured when a fellow patron of a horse show - under the influence of marijuana, cocaine and alcohol - was arrested and his concealed weapon accidentally discharged, hitting appellant.
CA holds that appellant failed to show that appellee or its agents failed to act or provide sufficient security, once it became aware of the other patron's inebriated and belligerent state.
Digested by John
Hamlet
Issue and Holding:
Whether the trial court erred in finding that the Allens had relinquished their superior right to permanent custody as de facto custodians. The
COA held no; the trial court’s order was supported by substantial evidence.
Facts:
The Court of Appeals already reviewed this matter once before in Allen v. Devine, 178 S.W.3d 517 (Ky.App. 2005). In its prior opinion, the Court affirmed the trial court’s ruling that the Allens were de facto custodians of two minor children, but remanded the case for a determination of whether the Allens were unfit or had waived their superior right to custody.
On remand, the trial court found that the Allens had relinquished their superior right to custody in 2003 and ordered that permanent custody of the children should remain with the Devines, the maternal grandparents, based on the best interests of the children.
Analysis:
Pursuant to KRS 403.270, the Allens are entitled, as de facto custodians, to be considered as potential custodians unless they are found to be unfit or proven to have waived their superior right to custody. The trial court made no finding that the Allens were unfit, and the Court affirmed said decision.
The trial court did find that the Allens had waived their superior right to custody based on their testimony at the 2003 trial and 2006 hearing. Waiver requires evidence of a voluntary and knowing relinquishment of a known right, and waiver can be implied by a party’s conduct. In 2003 the Allens both testified that it was always their intention for the children to go back to live with their mother once she got her life together. The Allens clearly wanted the court to maintain status quo, not terminate the parental rights of the biological mother or father, and to allow the Allens to retain custody until the biological parent(s) became fit. The Allens never expressed a desire to have permanent custody of the children.
During the 2006 hearing, the Allens confirmed their 2003 testimony. Although, they stated that they would now adopt the children and admitted that the biological parents may never become fit to resume custody of the children.
The Court found that the above testimony, even though somewhat conflicting, was clear and convincing evidence upon which the trial court could, and did, find the Allens had waived their right. The Court also found the instant case was distinguishable from Vinson v. Sorrell, 136 S.W.3d 465 (Ky. 2004), since the Allens have maintained that the most they ever desired was temporary custody of the children. Finally, the Court noted that the Devines were not de facto custodians, pursuant to KRS 403.270, and it was improper to characterize them as such.
AFFIRMED.
by Sarah
J. Nielson @ www.LouisvilleDivorce.com
NOT PUBLISHED (COA)
Failure of an attorney to appear for trial or at motion hour is traditionally treated as criminal contempt requiring proof of criminal intent.
In contrast, an indirect criminal contempt occurs "outside the presence of the court" and requires an evidentiary hearing comporting with due process to determine whether a court order has been violated.
The failure of GSF's attorney to appear at the default hearing on February 9, 2006, was an indirect criminal contempt. As such, an evidentiary hearing was required to determine whether GSF's counsel's absence was willful disobedience, open disrespect for the trial court, or perhaps excusable neglect. No such hearing occurred before the $500.00 sanction was imposed by the trial court.
VACATED AND REMANDED.
KENTER
V. COM.
CRIMINAL: RCr 11.42
2005-CA-001770
NOT PUBLISHED: 143
DATE RENDERED: 5/25/2007
CAVANAH
V. COM.
CRIMINAL: Directed Verdict
2006-CA-000264
NOT PUBLISHED: 83
DATE RENDERED: 5/25/2007
BERRY
V. COM.
CRIMINAL: Search incident to arrest; voluntary consent pat down
search
2006-CA-000527
NOT PUBLISHED: 90
DATE RENDERED: 5/25/2007
LAND
V. COM.
CRIMINAL: Jury discharge and correction of mistakes; reconvening
after discharge is a tainted jury
2006-CA-001099
NOT PUBLISHED: 105
DATE RENDERED: 5/25/2007
YOUNG
(KATINA) V. COM.
CRIMINAL: Search and seizure (automobile warrantless search;
smell of anhydrous ammonia)
2006-CA-001115
NOT PUBLISHED: 92
DATE RENDERED: 5/25/2007
MARCUS
V. UNIVERSITY OF KENTUCKY
EMPLOYMENT LAW: LTD and university employment
2005-CA-002471
NOT PUBLISHED: 94
DATE RENDERED: 5/25/2007
RAMAGE
V. HUMPHREY
FAMILY LAW: De facto custodian non-parent standing same as natural parent
2006-CA-001774
NOT PUBLISHED: 144
DATE RENDERED: 5/25/2007
MASSENGILL
V. MASSENGILL
FAMILY LAW: Visitation, KRS 403.340(3), best interests of child, and
father serving life sentence in prison
2006-CA-002158
NOT PUBLISHED: 82
DATE RENDERED: 5/25/2007
FLOWITT
V. ASHLAND HOSPITAL CORPORATION
TORTS and BREACH OF CONTRACT CLAIM BY PHYSICIAN WHO BECAME DISABLED
2006-CA-000785
NOT PUBLISHED: AFFIRMING IN PART,
REVERSING IN PART, REMANDING
DATE RENDERED: 5/25/2007
STEPHENS
V. OSRAM SYLVANIA
WORKERS COMP: WCB appeals and bound by ALJ findings of fact
2006-CA-001060
NOT PUBLISHED: 91
DATE RENDERED: 5/25/2007
Thanks to Scott Byrd, John Hamlet, Cherry Henault, Sam Hinkle, Chad Kessinger, Hays Lawson, J. Russell Lloyd, Michelle Eisenmenger Mapes , Peter Naake, Paul O'Bryan, Bryan Pierce, Paul Schurman, Michael Stevens and James Worthington for their efforts in digesting Kentucky's appellate decisions.