SEPTEMBER 14, 2007 KENTUCKY COURT OF APPEALS DECISIONS (2006:44)
PUBLISHED (COA).
ELDER V. PERRY COUNTY HOSPITALCA vacates and remands TC dismissals in these two appeals in this medical malpractice case.
CA holds that the TC has both personal and subject matter jurisdiction over
PCMH, and the TC abused its discretion in dismissing PCMH on forum non conveniens grounds. Additionally, the TC improperly applied the doctrine of forum non conveniens in its dismissal of both defendants PCMH and Norton.
This case has a long and convoluted history and the opinion contains a timeline in an effort to clarify previous rulings. In 1999, the Elders took their 6-year-old son to Perry County Memorial Hospital (PCMH)for fever and nausea. The Elders lived in Hancock County, KY; PCMH is only 3 miles away in Tell City, IN. An ER physician failed to properly treat the child, his condition worsened, and he was transported to another hospital in Evansville, IN, where he died. They sued in 2001. PCMH and Norton (the management company) remain as defendants. In 2004, PCMH filed motions to dismiss on jurisdictional grounds and responses were filed. The Jefferson Circuit Court dismissed PCMH on the basis of forum non conveniens, citing the doctrine sua sponte without ever addressing the jurisdictional issues raised by the parties. In 2005, the TC amended its order to bar PCMH from raising a statute-of-limitations defense in any other action in any other venue.
The Elders and Norton appealed and, while the appeal was pending, the Elders filed suit in Indiana, deciding to litigate there. They sought to have Norton dismissed from the Kentucky suit as well on forum non conveniens grounds in order to litigate against both in Indiana. The TC dismissed on those grounds with the same statute-of-limitations defense prohibition as the PCMH order. Norton appealed this dismissal; the Elders filed an appeal challenging PCMH's dismissal in order to maintain the option of litigating against both defendants in a single action in Kentucky. The CA vacated the dismissals and remanded. PCMH sought discretionary review, which was granted, and the Supreme Court vacated the CA decision and remanded to the CA in light of Carrico v. Owensboro, 511 S.W.2d 677 (Ky. 1974).
CA holds that the TC has both personal and subject matter jurisdiction over PCMH, and the TC abused its discretion in dismissing PCMH on forum non conveniens grounds. Additionally, the TC improperly applied the doctrine of forum non conveniens in its dismissal of both defendants PCMH and Norton.
Digested by John E. Hamlet
AT&T Corporation appeals from orders of the Franklin Circuit Court
finding that AT&T’s policy of recouping the commissions of its employees, Brian K. Fowler and Richard R. Grant, pursuant to their compensation agreement, violated the provisions of Kentucky Revised Statutes (KRS) 337.060, which prohibit employers from
deducting losses due to default of customer credit, or nonpayment for goods or services received by the customer, from the wages of their employees.
The circuit court also awarded attorney’s fees and costs to Fowler and Grant. On cross-appeal, Fowler and
Grant argued the circuit court erred in failing to award them liquidated damages.
COA reversed circuit court finding that the recovery of the commissions by AT&T violated the terms of the statute.
KRS 337.060 generally prohibits employers from recovering their losses from employees’ wages.
Under the terms of the Compensation Plan, the appellees agreed that their commissions would be debited under certain circumstances, namely, if an account stopped paying within a twelve month period. However, even though the commissions were wages, the fact that they were recouped by the employer did not violate KRS 337.060. Under the plain language
of KRS 337.060(1), an employer may not withhold any part of the wage agreed upon.
For these reasons, the portion of the Franklin Circuit Court order of September 26, 2005, ordering a return of the Darwin commissions to Fowler and Grant
is reversed. The portion of that order denying the appellees/cross-appellants' claim for liquidated damages hereby affirmed. The portion of the order of February 1, 2006, ordering the payment of reasonable attorney's fees, costs, and prejudgment interest to the appellees/cross-appellants is reversed. The portion of that order denying the appellees/cross-appellants' request for interest pursuant to KRS 360.010 is affirmed.
This matter is remanded to the Franklin Circuit Court with directions for further remand to the Office of Workplace Standards for a determination as to whether the amounts recouped were properly calculated.
TC properly admitted tape recording containing statements immediately following drug buy. Cooperating witness Daniel’s recorded comments were not sufficiently formal to fall within the realm of testimonial hearsay. Therefore, the Confrontation Clause was not implicated. There was no likely possibility that the result of the trial would have been different even if Daniel’s statements had not been introduced to the jury. On the recording, some time after the events of the drug buy itself, cooperating witness Daniel could be heard commenting on Officer Burch’s statement that he had purchased drugs with the remarks, “Yes, you did. You gave that to him, and he had his hand out.” Later in the recording, while Burch was giving his summary of the events surrounding the buy, Daniel could again be heard saying, “They’ve got ‘Percocet’ wrote right on them,” in reference to the pills purchased from Baker.
Accordingly, the sole question that we must consider as to Baker’s claim for relief under the Confrontation Clause is whether Daniel’s statements were testimonial in nature. Daniel’s statements in this case are clearly a description of past events – albeit very recently past. They were not made in the context of an ongoing emergency, and they were not made during the actual course of the drug buy as it was occurring. The statements undoubtedly implicated Baker as being involved in criminal activity. These facts, taken together, suggest that the statements were testimonial in nature. However, CA concluded that Daniel’s statements to Detective Burch were not sufficiently formal to implicate the Confrontation Clause. Daniel’s comments were unprompted, unsolicited, and spontaneous and were not the result of any prompting from Burch. We also note that the situation surrounding Daniel’s statements was somewhat unique in that she was doing nothing more than verifying a version of events that Detective Burch had personally witnessed. Because of his own direct involvement, Burch had full knowledge of what had occurred. He was not conducting a formal post-incident investigation that required reliance on any information that Daniel provided him. He himself had been a participant, and Daniel was not telling him anything that he did not already know. Daniel's statements were not made under formal conditions that would give a witness time for reflection.
Digested by Scott C. Byrd
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CA affirmed Rankin's conviction in Jefferson Circuit Court for Intimidating a Witness in the Legal Process. TC improperly instructed the jury. The trial court should not have included the word “shooting” in the instructions because there was no evidence that the caller said the word “shooting.” However, the error was harmless pursuant to RCr 9.24. Next, TC did not err by denying Defendant's motion to suppress. The circumstances of this case indicate that Rankin's Fifth Amendment rights were not implicated because he was not in custody when questioned. Defendant was not entitled to a directed verdict of acquittal.
TC did not err by denying motions for mistrial. However, TC did err by not giving an admonition. The Commonwealth’s factual assertion was not based on the evidence in the record and served no purpose but to improperly influence the jury. Barnes v. Commonwealth, 91 S.W.3d 564, 568 (Ky. 2002). However, the trial court did require the Commonwealth to correct its misrepresentation and the Commonwealth complied. Although the trial court did not give an admonition, in light of the court’s action, we conclude that the Commonwealth’s misrepresentation was not of such character and magnitude that Rankin was denied a fair and impartial trial.
Digested by Scott C. Byrd
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Defendant's conviction for Assault in the Second Degree affirmed following trial in which he was found guilty but mentally ill. Walker has failed to meet his burden of showing a manifest injustice has resulted from the alleged error contained in his withdrawn suppression motion as required by RCr 10.26. The brief reference in the Commonwealth's closing argument to Dr. Simon's testimony can hardly be said to have impacted the fundamental fairness of Walker's entire trial.
Digested by Scott C. Byrd
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NOT PUBLISHED (COA)
SIMPKINS V. COM.BROOKS V. COM.
CRIMINAL: SEARCH INCIDENT TO LAWFUL ARREST
2006-CA-002051
NOT PUBLISHED: 107
DATE RENDERED: 09/14/2007
BASSETT V.
BOARD OF REGENTS
EMPLOYMENT: GOVERNMENT EMPLOYMENT, TERMINATION, AND DUE PROCESS
2006-CA-002131
NOT PUBLISHED: 84
DATE RENDERED: 09/14/2007
G.A.S. V. COM.
FAMILY LAW: TERMINATION OF PARENTAL RIGHTS
2006-CA-000891
NOT PUBLISHED: 100
DATE RENDERED: 09/14/2007
ELLIOT V. J.C.
BRADFORD & CO.
TORTS: FIDUCIARY BREACH OF TRUST AND OFFSETS
2006-CA-000546
NOT PUBLISHED: 127
DATE RENDERED: 09/14/2007
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.