AUGUST 24, 2007 KENTUCKY COURT OF APPEALS DECISIONS (2006:41)
PUBLISHED (COA).
LIGGETT GROUP, INC. V. COM.The Court upheld the Lower Court’s motion for Summary Judgment on a challenge to a lengthy and extremely complicated tobacco settlement master plan.
The Appellants contend that a 2004 agreement allowing Vibo Corporation, d/b/a General Tobacco (and its affiliates Trademark Holding Corporation and Sun Tobacco, Inc.)
(collectively “GT”), to join the MSA violated the terms of the MSA. The Appellants argue that they are entitled either to set aside the agreement between the Settling States and GT, or to be given terms relatively as favorable as those afforded to GT.
COA disagreed with the Appellants that the Settling States improperly allowed GT to finance its back payment over a twelve-year period and that the MSA required GT to include all of its 2004 sales in the calculation of its 2005
payment and further concluded that, since the Appellants are not affected by the terms of the GT Agreement, they are not entitled to set aside the GT Agreement, to withhold their consent to it, or to receive “Most Favored Nation” treatment under the MSA. Hence,
COA affirmed the circuit court’s order granting summary judgment to the Commonwealth and GT.
Digested by Michael
Stevens
Circuit Court properly dismissed pro se inmate's petition seeking a declaration of rights following his placement in disciplinary segregation for a total of 135 days. Inmate was not entitled to discovery relating to witnesses from the out of state laboratory used to test his urine samples and documentation and information relating to the testing laboratory procedures. Further, there was no violation of of the federal Health Insurance Portability and Accountability Act ("HIPAA").
Minimal due process is all that is required regarding a person detained in lawful custody. See Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). In the context of a prison disciplinary proceeding, the state is only required to provide advance written notice of the charges; provide an opportunity to call witnesses and present evidence when those events remain consistent with institutional safety and correctional goals; and to provide a written statement from the fact finder of the evidence relied on and the reasons for the disciplinary action. Simply because disciplinary segregation involves different physical conditions and limited privileges does not mean that a prisoner maintains a liberty interest in freedom from that form of segregation. Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). The trial court properly dismissed the HIPAA claim pursuant to CR 12.02(a) for lack of subject matter jurisdiction. HIPAA does not create a state based private cause of action. See 42 U.S.C. § 1320d. Even assuming the general applicability of HIPAA, 45 C.F.R. § 164.512(k)(5) governs the applicability of HIPAA to correctional institutions and permits the urinalysis testing and reporting of the results in this matter.
Digested by Scott C. Byrd
www.olginandbyrd.com
TC propertly denied Morton's motion to suppress the evidence obtained as a result of the search of his person. Since Morton concedes that his vehicle was legitimately stopped and that the drug dog's alerts provided probable cause to search his vehicle, the issue is simply whether or not the probable cause which triggered the automobile exception extended to Morton, the lone occupant of the vehicle, permitting the search of his person. CA held that a positive canine alert, signifying the presence of drugs inside a vehicle, provides law enforcement with the authority to search the driver for drugs but does not permit the search of the vehicle's passengers for drugs unless law enforcement can articulate an independent showing of probable cause as to each passenger searched. Although officer's subjective justification for pulling out the folded dollar bill was not constitutionally adequate, the totality of the facts known to him at the time of his action, viewed objectively, would permit a finding of probable cause to search Morton for drugs because of the dog's alert of his vehicle.
Digested by Scott C. Byrd
www.olginandbyrd.com
JOHNSON
V. JOHNSON
FAMILY LAW: MODIFYING CHILD SUPPORT, SPLIT CUSTODY SITUATION
2006-CA-001790
PUBLISHED: AFFIRMING
PANEL: NICKELL PRESIDING; KELLER, KNOPF CONCUR
COUNTY: FRANKLIN
DATE RENDERED: 08/24/2007
COA affirmed final order of the Franklin Family Court that recalculated father's child support obligation.
David and Sherri Johnson separated
agreeing that each parent would also have two uninterrupted weeks of summer vacation with the child. Rather than figuring child support pursuant to Kentucky Revised Statutes
(KRS) 403.212(3), David and Sherri chose instead to calculate it using the split custody arrangement set forth in KRS 403.212(6)(b). A worksheet attached to the signed and notarized agreement lists Sherri’s monthly gross income as $2,241.00 and David’s as $5,315.00. They listed the base monthly support for one child at $891.00 which is the amount listed in the guidelines table for one child with a combined monthly adjusted
parental gross income of $7,600.00. Based upon these figures, they agreed David would pay to Sherri $356.40 in monthly child support and the parties would equally divide child care expenses plus the cost of their daughter’s health insurance and any additional medical, dental, or prescription drug expenses.
Modifying a child support obligation is generally within the sound discretion of the
court, and the COA will not disturb a family court’s findings unless the decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles - “as long as the trial court gives due consideration to
the parties’ financial circumstances and the child’s needs, and either conforms to the statutory prescriptions or adequately justifies deviating
therefrom."
By statute, proof of a deviation of 15% or
more “in the amount of support due per month shall be rebuttably presumed to be a material change in circumstances.” KRS 403.213(2). Conversely, any change that is less than 15% is “rebuttably presumed not to be a material change in
circumstances
In light of conflicting testimony, it would not have been an abuse of discretion for the family court to modify the agreement of the parties and to recalculate child support without reference to the split custody arrangement David and Sherri originally envisioned.
Affirmed.
Richard D. Bissell appealed family
court's order granting a Domestic Violence Order (DVO) to Lori Baumgardner and also awarding temporary custody of the parties’ child to her. Bissell contends that
the trial judge should have recused himself due to bias, that the court’s findings that domestic violence had occurred were not supported by substantial
evidence.
Baumgardner had filed a domestic violence petition on behalf of herself and the two children. Based on the allegations in the ex parte petition,
the circuit court issued an emergency protective order (EPO) restraining Bissell from further acts of domestic violence, from further contact with Baumgardner or the children,
and from disposing of or damaging any property of the parties. The EPO also granted Baumgardner temporary custody of the children and directed Bissell to pay temporary child support.
Prior to the hearing, Bissell filed a motion to dismiss, asserting that Kentucky lacked jurisdiction over him and the subject matter. The parties appeared for the hearing before Judge Kim Bunnell. Judge Bunnell noted that Baumgardner was accompanied by her stepfather, former Fayette Circuit Judge Charles Tackett. Judge Bunnell stated on the record that,while she did not know Baumgardner, she knew and respected Judge Tackett. Based on this information, Bissell asked Judge Bunnell to recuse herself and requested appointment of a special judge. Judge Bunnell granted the motion to recuse. By agreement of
the parties, the court extended the EPO to allow appointment of a special judge.
In addressing issues raised by the
recusal of the judge the COA noted that “The mere belief that the judge will not afford a fair and
impartial trial is not sufficient grounds for recusal.” Likewise, the mere fact that Baumgardner is related by marriage to a long-retired Fayette Circuit Court judge is not a sufficient basis to require recusal of all Fayette County judges. Furthermore, a judge is not required to disqualify himself or herself based solely on an allegation that a litigant
or counsel for a litigant has made a legal campaign contribution to the political campaign of
the trial judge. Dean v. Bondurant, 193 S.W.3d 744, 748 (Ky. 2006).
The trial court’s adverse ruling, even if erroneous, does not provide a basis for finding bias.
Although, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) governs jurisdiction in determinations involving custody of a
child, a Kentucky court has jurisdiction to enter an EPO or DVO to “[a]ny family member or member of an unmarried couple who is a resident of this state or has fled to this state to escape domestic violence and abuse . . . .”
Unlike the residency requirements to establish home-state jurisdiction under the UCCJEA, there
is no minimum time period to establish residency for a protective order. Spencer v. Spencer, 191 S.W.3d 14, 17 (Ky.App. 2006). Since Baumgardne r had clearly reestablished her residency in Kentucky, the trial court had subject-matter jurisdiction to enter the DVO.
Since the court found that Bissell’s allegations of threats of domestic violence were substantiated, the court properly exercised temporary emergency jurisdiction to award temporary custody of R.L.B. to Baumgardner. Furthermore, the court’s exercise of temporary emergency jurisdiction does not impinge upon the superior
jurisdiction of the Utah courts to make the final custody jurisdiction.
But to avoid any possible confusion, the DVO should be amended to reflect that the Fayette Circuit Court made the temporary custody award pursuant to its temporary emergency jurisdiction.
The Appellants ( “Boosters”) are six not-for-profit booster clubs charged with violating a smoking ban
ordinance enacted by the Lexington Fayette Urban County Government (LFUCG). Each
Booster was cited by the Health Department for allowing smoking to occur in a building that was
open to the public during a bingo game.
Discretionary review was granted by COA to consider the April 18, 2006, opinion and order of the Fayette Circuit Court which held the Boosters are not exempt from the smoking ban ordinance, reversed the dismissal of the Fayette District Court’s charges, and remanded the matter to the Fayette District Court for further proceedings.
COA also reviewed an order of the same court that overruled a motion to reconsider and vacate its April 18, 2006, opinion and order.
COA reversed and remanded to the Fayette Circuit Court for specific findings and further
proceedings.
The facts were undisputed. LFUCG had enacted a smoking ban ordinance with the declared purpose of prohibiting “smoking in all buildings open to the
public.” The ban was not absolute, however, as several locations were exempted from the ordinance including dwellings (with some limitations), rooms or halls being used for private social functions, retail tobacco stores, tobacco warehouses, theatrical stages (with appropriate signage), indoor smoking areas in government office buildings, and “facilities operated by private
organizations.” It is this last exemption that is at the heart of this appeal.
The Commonwealth filed a motion in limine asking the District Court to prohibit the Boosters from claiming they were private organizations and therefore exempt from the smoking ban. The ordinance defines a private organization as, “[a]n establishment which maintains selective members, is
operated by the membership, does not provide food or lodging for pay to anyone who is not a member or a member’s guest and is not profit
oriented.”
The District Court found the Boosters qualified as private organizations under the ordinance, and were therefore exempt from obeying and enforcing the ban
because of a specific exemption adopted by the LFUCG.
The Circuit Court then concluded that once the Boosters opened the doors of the bingo hall to the general public without restriction, they were not operating the game as a private organization and therefore they were required to prohibit smoking inside the building.
The COA held the Circuit Court erred in failing to rule on whether the District Court correctly found the Boosters are private organizations and therefore may claim the private organization exemption. Thus,
COA reversed and remanded to the Fayette Circuit Court for a specific finding on whether the Boosters qualify as private organizations.
The second contention advanced by the Boosters is that the Circuit Court overstepped its judicial authority and violated the separation of powers
doctrine by adding words to the ordinance that the LFUCG did not adopt.
The COA noted it may construe an ordinance liberally, but not to the point that the words take on a meaning that was wholly unintended by the governmental
body that adopted them and read the ordinance as enacted and in its entirety. Because there is no limiting language in the ordinance as it pertains to “facilities operated by private organizations,”
the COA will not add such limitations by judicial fiat.
Thus the COA reversed and remanded to the Fayette Circuit Court for a specific finding on whether the Boosters are “private organizations” as that term is defined in the
LFUCG smoking ban ordinance. If the Circuit Court finds the Boosters are private organizations, then they are exempt from enforcement of the ordinance according to the clear, unambiguous and unqualified language of Section 14- 98(1)(f) and the charges shall be dismissed with prejudice. If, however, the Circuit Court finds the Boosters are not private organizations, the dismissal of the charges shall be
reversed and the matter shall be remanded to the District Court for trial or other appropriate resolution of the charges.
Digested by Michael Stevens
CA affirms in part and vacates and remands in part TC entry of SJ for attorney in this case of adoption malpractice, fraud, negligent misrepresentation, loss of consortium and intentional infliction of emotional distress.
Appellant, depressed, pregnant and estranged from the baby's father, contacted Adoptions of Kentucky, Inc. She was told she needed an attorney and was referred to Arnett without being told that Arnett was the owner/sole shareholder of Adoptions of Kentucky. Arnett also represented the mother, the adoptive parents and her own agency at the termination proceedings. She did not tell the mother that the adoptive parents had paid the firm a fee in excess of $6,000. The mother also alleges that Arnett ordered her avoid the father before the termination occurred, to falsely inform the court that she did not know the identy of the father, and to terminate her own parental rights under threat of a countersuit from the adoptive parents. The termination was entered. Since, the father was able to regain custody; he and the child now live in Egypt. The mother's motion to set aside her termination was denied and she did not appeal. She filed suit against Arnett and Adoptions of Kentucky. The TC entered SJ against the appellant, noting that since she did not appeal the denial of her motion to set aside her termination she could not recover on her claims as a matter of law. The TC believed that appellant was attempting to re-litigate issues raised, and denied, in her CR 60.02 motion.
The CA affirms in part and vacates and remands in part, holding that the TC erred in concluding that appellant was attempting to re-litigate adjudicated issues. Appellant's claims of Arnett and Adoptions of Kentucky's wrongdoing and negligence had never been litigated. The loss of consortium claim, however, was properly dismissed. The IIED claim, however, remains.
Digested by John E. Hamlet
Sitlinger, McGlincy, Theiler & Karem
NOT PUBLISHED (COA)
OHIO CASUALTY INS. CO. V. WILSONTRANSPORTATION
CABINET V. JOHNSON
BOARD OF CLAIMS: CAR ALONG HIGHWAY, DEFENSE OF CONTRIBUTORY
NEGLIGENCE
2006-CA-001512
NOT PUBLISHED: 92
DATE RENDERED: 08/24/2007
The Commonwealth relies chiefly on Commonwealth, Transp. Cabinet v.
Shadrick, 956 S.W.2d 898 (Ky. 1997), for the proposition that it owes no duty to
motorists, such as the Johnsons, who collide with obstructions that are in plain view in the right of way.
Our Supreme Court further construed and refined the Shadrick holding in Commonwealth,
Transp. Cabinet
v. Babbitt, 172 S.W.3d 786 (Ky. 2005), which holds that [i]n the context of the facts in
Shadrick, that meant only that the Department was not required to remove vehicles parked by someone else in the right-of-way unless they
obstructed the traveled portion of the highway where persons exercising due care for their own safety would be operating their vehicles.
It did not mean that the long-discarded doctrine of contributory negligence as a complete defense applies to claims against highway authorities in Kentucky.
Court further held that Shadrick does not completely exonerate the Cabinet when the hazard is in plain view even when the driver is contributorily negligent.
There was abundant evidence to support the facts found by the hearing officer which were accepted and adopted by the Board.
Finding no basis to disturb those findings, COA recognized that “a highway authority is not automatically liable every time a motorist drives his vehicle off the traveled portion of the highway and strikes a
roadside hazard.” The determination of whether the highway authority has breached its duty to a motorist who leaves the highway and collides with an obstruction near the
road is a fact-intensive inquiry, and COA agreed with the Board that under the particular facts of this case, the Commonwealth had a duty to the Johnsons and that it
breached that duty. There was no basis for the circuit court to disturb the findings of the Board.
GREEN
V. BARBOUR
CIVIL PROCEDURE: SOL; DEFAULT JUDGMENT SET ASIDE ON APPEAL; TOLLING SOL;
SERVICE ON SEC'Y OF STATE
2005-CA-001599
NOT PUBLISHED: AFFIRMING
PANEL: TAYLOR PRESIDING; WINE AND PAISLEY CONCURRING
COUNTY: JEFFERSON
DATE RENDERED: 8/24/2007
This is an interesting case on the nuances of a hit and run motorist
when suit is eventually filed and the identity of the actual driver
discovered after the statute of limitations expired.
Green was a pedestrian who was struck by a "hit and run" motorist. Green tracked down the car later, wrote the owners, and obtained the name of the insurer but did not ask the identity of the driver (who later turned out to be the Barbour's daughter working in Louisville). Suit was filed more than two years after the accident against the owners. No pip was paid and all medicals were covered by Medicare. Owners moved for summary judgment dismissing the claim under SOL. Green submitted discovery to identify the driver learning then it was Barbour's daughter, Eloyce. Eventually, the claims against the parent/owners was dismissed by the Court, the complaint was amended to include the daughter who was eventually served by Sec'y of State and a default judgment entered against Eloyce for $50,000.
An insurance defense lawyer appeared on behalf of Eloyce moving to set aside the default judgment and to dismiss the claims against Eloyce per SOL. Both motions were granted and this appeal followed. COA affirmed both.
Two issues were raised on appeal claiming error in setting aside the default judgment and error in dismissing the claim based upon the statute of limitations and specifically arguing it was tolled by KRS 413.190.
In addressing setting aside the default judgment, the COA noted that there was no dispute that a meritorious defense was available as the SOL had been successfully used by her parents to dismiss the claim against them. However, Eloyce claimed she had never been served with the default judgment motion. The COA noted there was no certificate with the motion which was not captioned a default motion but rather a motion for judgment.
Since Green was relying on KRS 454.210 to obtain personal jurisdiction over Eloyce and given that this statute “deems” the secretary of state to be Eloyce's statutory agent in this proceeding, we believe it was incumbent upon Green, at minimum, to serve a copy of the motion upon the secretary of state. In fact, it appears the motion was served on no one.
With regard to the default judgment, the COA noted that if the claimed "actual" notice to Eloyce's agents had knowledge of the claims set forthin in the amended complaint then then that would have sufficed for CR 55.01 notice. However,
In this case the record clearly reflects that the “representatives” of Eloyce, as alleged by Green, were not served notice of the motion for judgment nor were they given notice of the hearing conducted in January 2005 to determine damages on the default judgment. Thus, we agree with the circuit court's finding that these circumstances constitute a valid excuse for Eloyce's default and further, given the totality of the circumstances, does not constitute any prejudice against Green to allow the matter to be resolved on the merits rather than by default judgment. Accordingly, we do not believe the circuit court abused its discretion in setting aside the default judgment against Eloyce.
COA then dispensed with the tolling argument as follows:
ADAMS V. COM.KRS 413.190 tolls the running of statutes of limitation against residents of this state if the resident is absent from the state or absconds or conceals himself to prevent the prosecution of the action against him. The record in this case reflects very little on the status of Eloyce as a “resident.” The meager discovery taken in this case indicates that Eloyce worked in Louisville during the summer of 2000. There is no other evidence to support her residency in Kentucky. Green failed to establish that Eloyce was a Kentucky resident. Accordingly, we conclude that KRS 413.190 is simply not applicable in this case since it can only accrue against a resident of this Commonwealth. Further, we note that Green's argument that Eloyce is a resident of Kentucky totally contradicts his argument that she was properly before the court since he obtained service on Eloyce pursuant to KRS 454.210, which is the primary method for obtaining personal jurisdiction over nonresidents by Kentucky courts.
REES
V. REYNOLDS
CRIMINAL: PAROLE ELIGIBILITY
2006-CA-001718
NOT PUBLISHED: 92
DATE RENDERED: 08/24/2007
GARDNER
V. COM.
CRIMINAL: MISTRIAL; ABUSE OF DISCRETION; BIFURCATED CRIMINAL
CHARGES; TESTIMONY OPENING DOOR TO PRIOR CONVICTION
2006-CA-000160
NOT PUBLISHED: 88
DATE RENDERED: 08/24/2007
SPURGEON
V. CORRECTIONS CABINET
CRIMINAL: PRISON - VIOLENT OFFENDER CLASSIFICATION
2006-CA-000534
NOT PUBLISHED: 77
DATE RENDERED: 08/24/2007
LONGO
V. LIMJUMRUNTORN
FAMILY LAW: PROPERTY AGREEMENT INCORPORATED INTRO DECREE AND
REOPENING; UNCONSCIONABLE CLAIM
2006-CA-000690
NOT PUBLISHED: 72
DATE RENDERED: 08/24/2007
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.