SEPTEMBER 7, 2007 KENTUCKY COURT OF APPEALS DECISIONS (2006:43)
PUBLISHED (COA).
BROCK V. PILOT CORP.Plaintiff was a third-in-line subcontractor hired to perform some hauling of excavated material from a property upon which the Defendant was building a Pilot Food Mart. The party who subcontracted the Plaintiff never paid him for his work, and he brought the instant action against the Defendant. The trial court granted Defendant's Motion for Summary Judgment, which was styled "Memorandum in Opposition to [Plaintiff's] MSJ and In Support of [Defendant's]
MSJ."
The CA held that the requirement that a party be given ten days to respond to an MSJ is mandatory "unless waived," according to Storer Communications v. Oldham County, 850 S.W.2d 340, 342 (Ky., 1993) and CR 56. The CA noted that the Plaintiff failed to cite to any place in the record where he objected to the trial court's consideration of the Defendant's
MSJ, and the CA deemed his objection waived.
The CA also held that in order for the Plaintiff to recover under the theory of unjust enrichment, he had to show not only that the Defendant benefited from his efforts, but also that it did not pay any person for the work he performed. The evidence proved that the Defendant paid the first-in-line subcontractor for the Plaintiff's work and that the second-in-line subcontractor failed to pay the Plaintiff. The unjust enrichment claim was therefore deemed precluded.
The Plaintiff argued that one of the Defendant's agents assured him the Defendant would pay for his work, and hence there was no need to provide the requisite notice under KRS 376.010(3) to the Defendant within 120 days of his intent to file a mechanic's lien (which he did not provide, by the by). The CA noted that a general contractor is not deemed an agent of a landowner as a matter of law, Middletown Engineering Co. v. Main Street Realty Co., Inc., 839 S.W.2d 274 (Ky., 1974). It examined the factors in Sam Horne Motor & Implement Co. v. Gregg, 279 S.W.2d 755, 757 (Ky., 1985), as to whether one acting for another is a servant or an independent contractor, and held that the Plaintiff failed to establish that the original subcontractor was the Defendant's agent. In that there was not direct contact between the Plaintiff and the Defendant or any of its agents, the CA held his prelien notice was untimely.
Cherry Henault
Sims was not entitled to a new sentencing hearing pursuant to the United States Supreme Court's opinion in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d1 (2005). Here, Sims pleaded guilty to murder in May 1994, and was sentenced to life in prison without the possibility of parole for 25 years. In Roper, the high court prohibited the execution of defendants who committed capital murder before they attained age 18. As the circuit court noted, the constitutional right established in Roper was that someone who was under 18 when he committed murder cannot be sentenced to death, not that he might escape a life sentence.
Note: This is the 4th published opinion on this exact issue by the CA - see Gussler v. Commonwealth, ___ S.W.3d ___, 2007 WL 2069509, Ky.App., July 20, 2007; McStoots v. Commonwealth, ___S.W.3d ___, 2007 WL 2141818, Ky.App., July 27, 2007; and Denton v. Commonwealth, ___S.W.3d ___, 2007 WL 2332062, Ky.App., August 03, 2007. Senior Judge Michael Henry's feelings toward the Roper decision are revealed in the language of the opinion.
CA reversed and remanded Defendant's conviction for fleeing and evading on double jeopardy grounds. Here, Foley led police on a high-speed pursuit that began in Hardin County and ended in Bullitt County. Defendant pleaded guilty in Bullitt County and subsequently was convicted at trial in Hardin County for the same incident. CA held that because Foley was prosecuted and pled guilty in the Bullitt Circuit Court to fleeing or evading under KRS 520.095, he cannot be prosecuted in Hardin County for a violation of the same statutory provision based upon the same facts. KRS 505.030(1)(b). As such, the TC erred in failing to dismiss the charge of fleeing and evading. CA held that fleeing or evading, under circumstances as occurred in this case, is a single continuous act, regardless of how many police officers may be considered to have given an order to stop.
The double jeopardy clause of the Fifth Amendment to the United States Constitution provides, in pertinent part, that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." Section 13 of Kentucky's Constitution includes a virtually identical provision and affords protections which parallel those guaranteed by the Fifth Amendment. Cooley v. Commonwealth, 821 S.W.2d 90, 92 (Ky. 1991). The double jeopardy clause prohibits a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). Kentucky's statutory scheme in KRS 505.020 et seq. establishes a method of analyzing double jeopardy challenges for multiple offenses (KRS 505.020); former prosecutions for the same offense (KRS 505.030); former prosecutions for different offenses (KRS 505.040); and former prosecutions in other jurisdictions (KRS 505.050).
Digested by Scott C. Byrd
www.Olginandbyrd.com
Ex-Wife appealed TC’s division of marital property, arguing that division was not in “just proportions,” as TC’s division of property earned between date of separation and date of decree was not equal. While working full-time for Brown & Williamson during marriage, Ex-Husband attended law school and Brown & Williamson paid his law-school tuition and expenses. In 2003, he began work at a law firm where B&W was his primary client while B&W closed its Louisville, KY offices to move out of state. Ex-Husband’s income drastically increased as a result of this work to over $500,000 in 2004. However, by the time of the trial, B&W’s move was nearly complete and Ex-Husband received very little income from this source and was building up a construction law practice. During the marriage and at the time of the trial, Ex-Wife was employed as a senior tax manager, earning approximately $115,000 annually. After the parties’ separation in October 2004, Ex-Wife discontinued contributions to utilities and mortgage payments on the marital residence, and both parties continued to share homemaker and parenting duties until the time of trial. TC equally divided property earned up to the date of separation; however, although it declared that the property earned between the date of separation and the date of decree was marital property, it allocated a substantially larger portion of this marital property to Ex-Husband. TC found that equal division of the property earned up to the date of separation would leave each party in good financial circumstances and that it was “just” to allow each party to keep the income earned after the date of separation and the assets purchased with that income.
Ex-Wife first contended to CA that unequal distribution of post-separation income and assets did not represent a division in “just proportions.” CA disagreed with Ex-Wife that post-separation assets must be divided in same proportion as pre-separation assets or divided equally. Citing Stallings v. Stallings, CA noted that making a division in “just proportions” requires TC to consider the factors of 403.190(1)(a)-(d), one factor of which requires consideration of the contribution of each spouse to the acquisition of the property. CA found that TC properly considered these factors in making its division, and found no error.
Ex-Wife also contended that TC failed to consider her contribution to Ex-Husband’s law degree when dividing the post-separation assets. CA noted that, although a professional degree is not marital property, it can be considered an asset of the marriage in determining the parties’ respective contributions when dividing marital property. CA held that TC appropriately considered Ex-Wife’s claim to contribution towards the law degree, and that TC properly rejected her claim, as Ex-Husband’s law school tuition was paid for by B&W, the degree was obtained without a break in his employment, he continued parenting duties while in law school, and Ex-Wife continued to advance her career during that time. TC’s division of property affirmed.
Digested by Michelle
Eisenmenger Mapes, Diana
L. Skaggs + Associates.
Ex-Husband appealed from TC’s order reissuing domestic violence order against him, arguing that there was no evidence to support the DVO. Parties’ 34-year marriage culminated in an incident in which Ex-Husband threw Ex-Wife against a shower wall and held a gun to her head. Ex-Wife moved out of marital residence and the parties divorced in 1997. In 1998, a DVO was entered against Ex-Husband after he threatened to kill Ex-Wife and all her co-workers. DVO expired in 2001, at which time Ex-Husband again began following and threatening Ex-Wife. Another DVO was entered in early 2003, to expire in 2006. A few weeks before this DVO expired, Ex-Wife filed a motion to extend it for another three years. TC did so after a brief hearing. Ex-Husband appealed to CA, and CA rendered unpublished opinion in 2006 vacating the DVO and remanding to TC, noting that what appeared to be the sole ground for re-issuance of the DVO was Ex-Wife’s testimony that life had been “much more peaceful” with DVO in place, and that, on remand, TC should give proper consideration to the restrictiveness of a DVO as well as all the facts and circumstances surrounding the case before rendering a decision. TC held second hearing, and again re-issued DVO. Ex-Husband appealed again.
CA held that TCs have authority to reissue DVOs even in the absence of additional acts of domestic violence and abuse during the prior period. However, there must be some showing of a continuing need for the DVO. CA recognized that TC considered history of domestic violence in the parties’ marriage; that Ex-Husband’s conduct after the marriage left in Ex-Wife in fear; that during the time post-marriage when no DVO was in place, Ex-Husband again began to harass Ex-Wife; and that when CA’s last opinion on this matter was rendered, Ex-Husband attempted to retrieve his guns from the Sheriff’s office even before TC received notice that DVO had been vacated. Thus, CA found that there existed sufficient evidence to reissue the DVO.
Digested by Michelle
Eisenmenger Mapes, Diana
L. Skaggs + Associates.
Held the tax authorized by the legislation here being attacked (KRS 160.614(3)) is for state purpose.
Therefore, the provision of the Telecommunications Act which preserves the right of a state to tax the services of a DBS provider allows for the taxation scheme outlined in KRS 160.614(3). Kentucky’s Courts have ruled
consistently that the local district boards of education and the taxes they assessed were a state concern.
A board of education in Kentucky is performing a function of the state in operating the public schools as state institutions.” Commonwealth v. Louisville National Bank, 220 Ky. 89, 294 S.W. 815 (1927)(School taxes are classified as state and not local
taxes). However, any DBS or wireless cable service provider required to pay the utility tax may increase its rates up to 3% to cover the cost of the tax.
BENNETT
V . NICHOLAS
TORTS: WRONGFUL DEATH ACTION
PROBATE: CONSTRUCTIVE KNOWLEDGE OF WILL
2006-CA-001467
PUBLISHED: REVERSING AND REMANDING
PANEL: HOWARD, PRESIDING; ACREE & LAMBERT CONCUR
COUNTY: MCCRACKER
DATE RENDERED: 09/07/2007
CA reverses and remands TC dismissal of malpractice claims.
Decedent's nephew was appointed as the administrator of her estate and then filed a wrongful-death action against the appellees. Appellees
deposed decedent's former husband and discovered that she had a valid will appointing husband as Executor. Appellees moved to dismiss
the complaint; Appellant sought leave to have will probated and husband appointed Executor and substituted as personal representative for
litigation purposes. TC granted motion to dismiss.
First, the dismissal was actually an entry of SJ against the personal representative and must be reviewed as such. Second,
CA holds that Kentucky law is clear that appointment of nephew was a valid,
voidable, NOT VOID, order, and that all actions taken, including filing suit, were valid. While there was absolutely no evidence, as appellees suggest, that nephew knew of the will prior to seeking appointment,
such knowledge would be immaterial regardless. The motion to allow the will to be probated and the new personal representative to be substituted
should have been granted; summary judgment was improper. Reversed and remanded.
Digested by John E. Hamlet.
The Court of Appeals affirmed the Workers' Compensation Board and the ALJ in finding that a crane operator's injury in Ohio was covered under Kentucky Workers' Compensation law. The employer had jobs in many states and the claimant had worked for Tri-State Crane Rental before, in Kentucky as well as other states. Analyzing the extraterritorial application of the workers' comp law, the COA adopted the Board's decision which found that when the claimant had worked for the employer previously, the contract of hire was made in Kentucky. A six-month hiatus occurred where the claimant worked for another employer, since he was a member of the operating engineer's union. But the ALJ found, based on conflicting evidence, that the employment relationship continued when he was injured on the first day back to work for this employer. Therefore, the injury could be covered under Kentucky workers' compensation law. Although the employer contacted the claimant directly, on the occasion of this period of employment, the opinion lacks any information about the Union's collective bargaining agreement. It seems that the CBA should have been considered the 'contract of hire' since it established the terms and conditions of employment. The COA also affirmed the Board's reversal of the ALJ's imposition of sanctions for denying the claim.
Digested by Peter
Naake - Priddy, Cutler, Miller & Meade
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.