AUGUST 17, 2007 KENTUCKY COURT OF APPEALS DECISIONS (2006:39)
PUBLISHED (COA).
CLAIR V. HILLENMEYERIn what seems to be an increasingly popular and I might add disgusting methodology for Trial Court’s to clear their docket, this Trial Court granted Summary Judgment to Hillenmyer. The Court of Appeals only found several glaring genuine issues of material fact and many other possible issues. As only one genuine issue is required and in light of the standard of reviewing the motion in light most favorable to the non-movant, the Court of Appeals reversed and remanded.
in light of the contradictory evidence received by the trial court, the COA could not conclude Hillenmeyer was entitled to a judgment as a matter of law. Generalized denials that an issue exists are insufficient to eliminate a genuine issue of material fact. In Hillenmeyer's own words, however, “all parties were left guessing” as to what “code” was referred to in the contingency. The resolution of this question is clearly a material fact for the jury to decide in order to determine who, if anyone, breached the purchase contract, and if there was a valid defense therefor.
Digested by Paul Schurman
RICHARDSON V. COM.CA held TC's order revoking Richardson's probation violated his due process rights because it did not adequately set out the evidence relied on nor the reasons for revoking Richardson's probation. In this case, the trial court's order provided only that Richardson's probation was revoked because he had violated the terms and conditions of his probation. While the order makes a generalized statement regarding revocation, it does not specify which term or condition was violated nor state what evidence was relied on to revoke Richardson’s probation. Put simply, the trial court's order does not satisfy the minimum due process standard set out in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Having concluded that Richardson’s due process rights were violated, CA reversed and remand this case to the trial court to make written findings in accordance with Gagnon.
Digested by Scott C. Byrd - www.olginandbyrd.com
CA affirmed order of the Franklin Circuit Court dismissing inmate's petition for declaration of rights and permanent injunctive relief, and granting summary judgment to the Kentucky Parole Board. There has been no enhancement of punishment or elongation of Simmons’s sentence by the application of 501 KAR 1:030. Therefore, the retroactive application of this revised regulation does not create an unconstitutional ex post facto violation. Parole Board was within the bounds of its discretionary powers in denying parole to Simmons and ordering him to serve out the remainder of his sentence. The Parole Board did not exceed its authority nor did it invade the functions reserved for the judicial or legislative branches of government.
Digested by Scott C. Byrd - www.olginandbyrd.com
CA affirmed two orders of the Franklin Circuit Court dismissing pro se inmate's petition for declaratory judgment, and another denying a motion to amend the judgment and compel discovery. The prison warden's memorandum requiring inmates to have a valid canteen receipt for all perishable items in their possession that is not more than 60 days old did not improperly modify an administrative regulation via internal memorandum and did not deny Vestal due process of law.
Digested by Scott C. Byrd - www.olginandbyrd.com
CA upheld the constitutionality of KRS 218A.500 and
218A.510, the statutes relating to drug paraphernalia. The statutes are
not overbroad or vague; do not violate equal protection; and the
punishment provisions are not ambiguous, inconsistent, or cruel and
unusual.
Digested by Scott C. Byrd - www.olginandbyrd.com
Mitchell was not entitled to a directed verdict of acquittal for Robbery in the first degree. The evidence at trial showed Mitchell entered a branch of U.S. Bank and handed the teller a note that read, “I have a gun! Put the money in the bag!! Dont [sic] be stupid.” The handwritten note both referred to a deadly weapon and demanded money. This evidence alone was enough to overcome the directed verdict motion.
Robbery in the first degree, a Class B felony as defined in Kentucky Revised Statute (KRS) 515.020, requires intent to commit a theft, commission of a theft, and either the use or threat of immediate use of physical force on a non-participant in the crime, plus the person committing the theft must have either caused physical injury to a non-participant in the crime; been armed with a deadly weapon; or used or threatened the immediate use of a dangerous instrument upon a nonparticipant in the crime. In contrast, robbery in the second degree, a Class C felony as defined in KRS 515.030, requires only proof of a theft and either the use or threat of immediate use of physical force upon another person to commit the theft. Kentucky courts have consistently held reference to a deadly weapon, coupled with a contemporaneous demand for money, is sufficient to defeat a directed verdict motion on a charge of robbery in the first degree. Shegog v. Commonwealth, 142 S.W.3d 101, 109-110 (Ky. 2004); Dillingham v. Commonwealth, 995 S.W.2d 377, 380 (Ky. 1999); Swain v. Commonwealth, 887 S.W.2d 346 (Ky. 1994).
Digested by Scott C. Byrd - www.olginandbyrd.com
CA reversed and remanded Defendant's conviction for three counts of second-degree forgery. TC committed reversible error by excluding the Defendant's property settlement agreement.
In this case, Brenda Johnson wrote several checks from her husband's Prudential account. Brenda had been granted power of attorney over her husband's financial matters while he was deployed to the Middle East; however, the parties agreed she would not have access to the Prudential account. Brenda and her husband, John, subsequently divorced, and their settlement agreement incorporated the Prudential account into the property division. During the criminal trial, the TC ruled the property settlement agreement irrelevant, and therefore, inadmissible.
By ruling that the settlement agreement did not specifically address the Prudential account, Brenda was precluded from asserting the defense of ownership which could have been decisive in the presentation of a successful defense. From the language of the property settlement agreement, Brenda should have been permitted to assert a co-ownership defense because the agreement specifically addressed the Prudential account as if it was marital property. Moreover, the trial court's incorrect finding that the agreement did not address the Prudential account, as revealed by the record, improperly influenced its decisions in subsequent rulings. These series of rulings cannot be considered harmless because had the jury believed that Brenda was a co-owner of the property then she would have been entitled to an acquittal of the forgery charges.
CA also concluded that the trial court erred by excluding the settlement agreement during the sentencing and restitution phases of the trial. Certainly, evidence that John and Brenda had settled the Prudential account constitutes restitution to John and should have been admitted as a circumstance surrounding the charged crimes. Upon retrial, if Brenda is convicted, CA held this information should be presented to the jury to aid them in determining an appropriate punishment.
Digested by Scott C. Byrd - www.olginandbyrd.com
Ex-Wife appealed Order of trial court denying her claims against Ex-Husband for reimbursement of their children’s health insurance premiums, extraordinary medical expenses, and half the expenses for one adult child’s funeral, and monetary damages for Ex-Husband’s failure to convey marital residence to her. The parties’ Marital Settlement Agreement, entered six years earlier, provided that Ex-Husband would provide health insurance for the children, pay half of uncovered medical expenses, and that Ex-Husband would convey his interest in marital residence to Ex-Wife within ten days of entry of decree.
Enforcement of Marital Separation Agreement (MSA)
Wife first contended to CA that TC erred generally in applying principles of equity in its interpretation of the enforcement of the MSA, arguing that the MSA should have been interpreted as a contract. CA noted that, after an MSA is originally found to be not unconscionable and incorporated into a decree of dissolution, it may be subsequently modifiied only if a party can prove that there have been a change in circumstances that have rendered the MSA unconscionable (except for terms regarding the custody, support and visitation of children.) Without this subsequent showing of unconscionability, the terms of the MSA must be enforced as contract terms. Because Ex-Husband did not meet his burden of proof that the MSA terms had been rendered unconscionable, CA held that TC clearly erred when it applied principles of equity in interpreting enforcement of the
MSA.
Health Insurance Premiums
Ex-Wife next contended to CA that TC erred by finding she failed to present sufficient proof that Ex-Husband had not maintained health insurance on children as ordered by MSA, though she introduced bills at the hearing that indicated the children did not have health insurance coverage at the time of service. CA held that it was clearly erroneous for TC to summarily state that Ex-Wife did not provide sufficient evidence on the issue, and that CA believed she had provided proper evidence relating to her payment of at least a portion of the health insurance premiums. TC was reversed on this issue and it was remanded.
Medical Bills
CA held that TC clearly erred in finding that Ex-Wife provided insufficient proof that she had submitted medical bills to Ex-Husband, citing to her testimony on this issue, and CA also found that TC erred in applying principles of equity in denying Ex-Wife’s claim due to the amount of time that had passed since the bills were incurred. TC was reversed on this issue.
Relocation Expenses
Ex-Wife contended that TC erred in denying her claim for monetary damages against Ex-Husband due to Ex-Husband’s failure to execute a quitclaim deed within enough time that Ex-Wife could receive a sizeable relocation reimbursement from her employer. Ex-Husband was to execute the deed within ten days of entry of the decree, but did not do so for four years. CA disagreed with TC’s finding that Ex-Husband’s provision of the deed after four years somehow cured the breach. Rather, CA held that the breach had occurred, and Ex-Wife’s delay in enforcement of the MSA requiring Ex-Husband to execute the deed was not a waiver of her contractual right to make a claim for damages resulting from the breach. CA reversed on this issue and remanded to TC for findings as to whether Ex-Husband’s breach was sufficient to entitle Ex-Wife to reimbursement for the relocation expenses.
Funeral Contract
Finally, TC ruled that Ex-Wife’s claim for reimbursement of half the costs of the funeral costs for the parties’ child was barred by Ex-Husband’s defense of res judicata, because a similar complaint had been filed and dismissed previously in another court. CA found that Ex-Husband raised the defense of lack of subject matter jurisdiction, but not res judicata, and that it appeared TC raised the res judicata defense sua sponte. As res judicata is an affirmative defense, it can be waived, and CA held that Ex-Husband’s failure to affirmatively plead the defense was fatal to TC’s ruling. Thus, this issue, too, was reversed and remanded to TC for further findings.
As
digested by Michelle
Eisenmenger Mapes, Diana
L. Skaggs + Associates.
Reynolds appeals TC's entry of Summary Judgment for Travelers finding that exclusions contained in Appellant's homeowner's insurance policy with Travelers precluded coverage for substantial losses incurred at their home. At issue was whether the theft of appliances and resulting water damage (from severing of the water line to a refrigerator) and mold damage to the Appellant's home by an employee of a contractor working on a drainage improvement project at the home was a covered loss under the policy. Specifically, Reynolds alleged error in the TC applying 3 different exclusions: 1) exclusion for losses caused by theft of home under construction 2) exclusion for losses caused by vandalism and malicious mischief; 3) exclusion for losses caused by continuous or repeated seepage or leakage of water; and 4) exclusion for loss caused by mold.
The COA held that none of the 4 exclusions applied to preclude coverage for any of the Appellant's losses. As to exclusion 1, the COA held that the home was not "under construction" at the time of the theft (it was originally built several years prior), but rather was merely undergoing repairs. The COA ruled exclusion 2 was inapplicable since the losses stemmed from a theft rather than vandalism or malicious mischief. On exclusion 3, the COA for the phrase "period of time" ambiguous as it relates to how long the seepage must have lasted before the exclusion applies, and found both side's interpretation reasonable under the case facts. The ambiguity thus benefited Appellants as the non-drafting party of the insurance contract. Finally, on exclusion 4 the COA felt the mold damage was a direct and proximate result of the theft of the refrigerator and not a separate loss, and thus did not apply to preclude coverage. The COA referenced the "efficient proximate cause doctrine" as adopted by a Washington state court in support of its conclusion that the mold damage was directly caused by the covered theft loss.
By Chad Kessinger
Schiller Osbourn Barnes & Maloney
US Bank appeals the denial of a CR 60.02 motion to set aside a final judgment and to amend its complaint to add Heights Finance Corp. to the foreclosure action. Heights filed a judgment lien on the property being foreclosed upon after the filing of the foreclosure by US Bank but BEFORE the bank filed a lis pendens notice. Height's lein survived the foreclosure action and clouded the title. CA affirms the Circuit Court Action.
The Circuit Court initially granted the bank's motion to set aside the judgment under Rule 60.02(a), then rescinded that order and a summary judgment motion by the bank was denied. CA found that the trial court's denial did not constitute an abuse of discretion.
"[T]he determination to grant relief from a judgment or order pursuant to CR 60.02 is one that is generally left to the sound discretion of the trial court[.]" Schott vs. Citizens Fidelity.
Digested by Paul O'Bryan @ O'Bryan
& Denbow Law Office
The Finance and Administration Cabinet, Department of Revenue appealed Franklin Circuit Court's Opinion and Order upholding the decision of the Kentucky Board of Tax Appeals that reversed its assessment of sales and/or use tax against Duplicator Sales and Service, Inc.
COA affirmed.
The issue in this case is whether Duplicator was the consumer or retailer of the parts and
supplies it used in fulfilling its warranty or maintenance contracts.
Ultimately, the question is whether the parts and supplies are subject to sales tax, which would be assessed against Duplicator's customers that are subject to sales tax, or use tax, which would be assessed against Duplicator in every transaction, regardless of the tax status of the customer.
COA held such transactions constitute retail sales requiring the imposition of sales tax against the customers.
Digested by Michael Stevens
This appeal involved a trial court's denial of plaintiff's new trial motion and judgment NOV for a zero pain and suffering (and inconvenience) verdict in a trial in which medical testimony supported pain and suffering and the plaintiff was awarded nearly $18,000 in medicals and nearly $14,000 in wage loss. Two other errors raised involved the zero verdict for an impairment award and the zero pain and suffering verdict were both contrary to the evidence, and that she should have been awarded a directed verdict on liability..
In addressing this "Miller v. Swift" issue, Judge Nickell noted "[a]s a reviewing court, however, we focus not on what the jury did, but rather on what the trial court did . . . . [and] will presume the trial court's denial of a JNOV or a new trial to be correct and will reverse only upon a finding of clear error."
The plaintiff noted she had two doctors give unrefuted testimony about her pain (herniated disc and disectomy), but the defendant argued "there was sufficient evidence from which jurors could, and did, conclude [plaintiff] had a high threshold for pain . . . ." The COA agreed with the defendant.
While there was testimony from which jurors could conclude McCulloch [injured plaintiff] experienced pain as a result of the collision with Sullivan [defendant], there was also sufficient evidence from which they could just as easily conclude she did not. Keeping in mind that jurors are “not bound to believe a plaintiff or her doctors,” Spalding v. Shinkle, 774 S.W.2d 465, 467 (Ky.App. 1989), we cannot say the jury’s verdict was unrelated to the evidence. We therefore cannot say the trial court abused its discretion and clearly erred in overruling the motions for a JNOV or, alternatively, for a new trial.
Digested by Michael Stevens
SANDERS
V. SMITH
WILLS, ESTATES, PROBATE:
2006-CA-000444
PUBLISHED: AFFIRMING
PANEL: PAISLEY PRESIDING; THOMPSON, VANMETER CONCUR
COUNTY: PIKE
DATE RENDERED: 8/17/2007
On appeal, Ellis and Sue Sanders argue that the judgment is palpably erroneous because it ignores their inherited interest under KRS 391.010, which provides that real
estate belonging to an intestate decedent descends to his or her father and mother (assuming that the decedent had no children and after payment of the dower share).
Under KRS 391.030(1), the personal property of an intestate decedent is distributed only after the “payment of funeral expenses, charges of administration, and debts[.]” Real property belonging to an intestate decedent descends directly to the heirs pursuant to KRS 391.010, with one important qualification: if it shall appear that the personal estate is insufficient for the payment of all debts, the court may order the real property descended or devised to the heirs or devisees who may be parties to the action, or so much thereof as shall be necessary,
to be sold for the payment of the residue of such debts. KRS 395.515.
In other words, the debts of the estate must be satisfied before the intestate shares are distributed. The Pike Circuit Court did not err in ordering the debts of the
estate to be paid prior to distributing the remainder of the estate to Bobby and the appellants.
As a cautionary tale, this opinion started with the following admonition and warning brief writers:
We note as a preliminary matter that the appellants’ brief fails to satisfy Kentucky Rules of Civil Procedure (CR) 76.12(4)(iv), which requires a statement of the case consisting of a chronological summary of facts and procedural events necessary to an understanding of the issues presented by the appeal, with ample reference to the record, and CR 76.12(v), which requires that the argument contain ample supportive reference to the record.
Given the serious deficiencies of appellants' brief, we would be justified in ordering the brief stricken. See Robbins v. Robbins, 849 S.W.2d 571, 572 (Ky.App. 1993), citing CR 76.12(8)(a). Rather than imposing such a severe sanction, however, we elect instead to dispose of this appeal based solely upon the contents of the parties’ briefs.
Digested by Michael Stevens
NOT PUBLISHED (COA)
NOE V. COM.HARROD
V. HARROD
BUSINESS LAW: INSURANCE TRUST; CONTRACT INTERPRETATION
2006-CA-000263
NOT PUBLISHED: 218
DATE RENDERED: 8/17/2007
VIOLETT
V. WATSON
CRIMINAL:
TORTS: IMMUNITY OF PROSECUTORS
2006-CA-001346
NOT PUBLISHED: 75
DATE RENDERED: 8/17/2007
ALVARADO
V. COM.
CRIMINAL: 11.42
2005-CA-001527
NOT PUBLISHED: 76
DATE RENDERED: 8/17/2007
MASSENGILL
V. COM.
CRIMINAL: 11.42
2005-CA-001870
NOT PUBLISHED: 75
DATE RENDERED: 8/17/2007
HOBSON
V. COM.
CRIMINAL: CRIME - ROBBERY, AGGRESSOR, ESCAPE STAGE
2006-CA-000582
NOT PUBLISHED: 105
DATE RENDERED: 8/17/2007
GROVES
V. COM.
CRIMINAL: COMPETENCY OF COUNSEL; PAROLE ELIGIBILITY ADVICE
2006-CA-000957
NOT PUBLISHED: 107
DATE RENDERED: 8/17/2007
MONTGOMERY
V. KENTUCKY RETIREMENT SYSTEMS
EMPLOYMENT LAW: GOVERNMENT RETIREMENT AND LINE OF DUTY ENHANCEMENT
2006-CA-001843
NOT PUBLISHED: 87
DATE RENDERED: 8/17/2007
MINIX
V. MINIX
FAMILY LAW: PROPERTY DIVISION MEANS EQUITABLE AND NOT NECESSARILY
EQUAL; MARITAL DEBTS
2006-CA-001213
NOT PUBLISHED: 82
DATE RENDERED: 8/17/2007
JONES
V. JONES
FAMILY LAW: REVIEW OF PROPERTY DIVISION FOUND SUFFICIENT FACTUAL
BASIS
2006-CA-000386
NOT PUBLISHED: 76
DATE RENDERED: 8/17/2007
ADDINGTON
V. LEWIS
TORTS: BREACH OF FIDUCIARY DUTY CLAIM AGAINST AUCTIONEER
2006-CA-001340
NOT PUBLISHED: 96
DATE RENDERED: 8/17/2007
LADEGAST
AND HEFFNER V. CARPENTER
WORKERS COMP: INJURED IN ANOTHER STATE AND JURISDICTION
REQUIREMENTS UNDER 342.670
2006-CA-001741
NOT PUBLISHED: 110
DATE RENDERED: 8/17/2007
BOWEN
V. HEALTH MANAGEMENT ASSOCIATES
WORKERS COMP: ALJ FINDER OF FACT; BURDEN ON CLAIMANT;SUFFICIENT
EVIDENCE
2007-CA-000407
NOT PUBLISHED: 82
DATE RENDERED: 8/17/2007
Thanks to Scott Byrd, John E. 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.