OCTOBER 26, 2007 KENTUCKY COURT OF APPEALS DECISIONS (2006:51)
PUBLISHED (COA).
PATTON V. COM.CA affirmed order of Jefferson Circuit Court denying without an evidentiary hearing pro se Defendant's RCr 11.42 motion to vacate his guilty pleas alleging ineffective assistance of counsel. A defendant is entitled to an evidentiary hearing on his RCr 11.42 motion if the issues raised in that motion reasonably require such a hearing for a determination. On the other hand, a defendant is not entitled to such a hearing if the motion, on its face, does not allege facts which would entitle him to a new trial even if true, or if his allegations are refuted by the record itself. Here, based on the record, CA found no evidence of coercion, nor of ineffective assistance by Patton’s trial counsel in advising him to accept the plea offer, rather than to go to trial.
Digested by Scott C. Byrd
Olgin and Byrd
In 2-1 decision, CA affirmed TC's order denying Boyle's motion to suppress in DUI prosecution based upon an illegal stop.
The uncontroverted, material facts surrounding the investigatory stop in this case are that Boyle drove his unmarked pick-up truck after midnight with a single orange, road-construction barrel in its bed. Because CA knew “as a matter of ordinary human experience” that the increasingly ubiquitous orange, road-construction barrel is ordinarily transported during daylight hours, in bunches, and by marked construction or government vehicles, CA found that, at the time of the investigatory stop leading to Boyle's arrest and guilty plea, there was indeed a reasonable and articulable suspicion that Boyle was in possession of a stolen barrel. Thus, even though the barrel was later shown to have been borrowed, not stolen, the arresting officer's investigatory stop was not unconstitutional or improper.
Note: This decision is truly a head-scratcher. Judge Nickell's dissent accurately points out that the basis of the stop was a general assumption that sometimes construction barrels are stolen. More surprising is the fact this case is designated "To Be Published". The 4th Amendment has been dealt a serious blow with this poorly reasoned opinion.
Digested by Scott C. Byrd
Olgin and Byrd
CA affirmed TC's denial of Defendant's RCr 11.42 motion to vacate guilty pleas alleging ineffective assistance of counsel. Defendant was not entitled to an evidentiary hearing as the allegations were refuted by the face of the record.
Digested by Scott C. Byrd
Olgin and Byrd
COA affirmed jailer's termination of jail employee under KRS 71.060(2) which provides the jailer shall be responsible for the appointment and removal of jail personnel, and the jailer may dismiss his deputies at any time with cause. Although "cause" was not defined in KRS Chapter 71, the COA found that the claims of the jail employee's (Martin's) ethical misconduct or the alleged sexual misconduct, if believed, constituted substantial legal cause for his termination, as such conduct not only related to and affected the administration of his office, but also “directly affect[ed] the rights and interests of the public.”
Digested by Michael Stevens
Grandmother and her Husband appealed from TC’s order holding that Grandfather had standing to seek grandparent visitation and that visitation would be in the best interest of Grandchild.
FACTS:
Grandchild was born to 15 year-old unwed Daughter, and no putative father was named. Daughter agreed that Grandmother and her Husband would be court-appointed guardians for Grandchild. Daughter died about two years later. Grandmother and Husband filed a Petition to adopt Grandchild in Jefferson Family Court, Division Three. Two weeks later, unaware of the pending adoption petition, Grandfather filed a petition for grandparent visitation in Jefferson Family Court, Division Four. The adoption petition was granted about a month later, prior to the entry of the grandparent visitation order. Grandfather than amended his petition in the visitation action, but Grandmother responded that he lacked standing to seek grandparent visitation because of the adoption. A GAL was appointed for grandchild. The GAL filed her report and motion requesting that Grandfather be granted immediate visitation. TC ultimately ordered that Grandfather have temporary visitation with Grandchild every weekend. After seeking a writ of prohibition from CA, which was denied, and receiving SC’s memorandum opinion affirming same, TC finally held evidentiary hearing. TC determined that Grandfather did have standing to proceed and that it was in Grandchild’s best interests to continue his relationship with Grandfather, and thus granted Grandfather’s petition and established terms of visitation. Grandmother and Husband filed CR 52 and 59 motions, both of which were denied, filed an appeal of these denials with CA, and subsequently filed a motion for intermediate relief with CA and requested emergency relief, which was denied.
ARGUMENTS AND ANALYSIS:
Grandmother and Husband contended that TC should have dismissed the case because Grandfather did not obtain a circuit court visitation order prior to the entry of the adoption decree, and KRS 405.021, the grandparent visitation statute, requires a visitation order to be issued by the circuit court prior to the termination of parental rights of a grandparent’s son or daughter to protect grandparent visitation rights with the children of that son or daughter. CA agreed that this was the correct interpretation of the statute, but that it was incorrectly applied as the case at bar did not concern termination of parental rights. CA found it to be even more important that the statute and cases interpreting it did not allude to situations where one grandparent used the adoption statute as a means to bypass the grandparents’ visitation statute, as CA found Grandmother to have done.
Because a parent’s rights lapse upon death, there is no contested proceeding to alert a grandparent that visitation rights need to be asserted. However, neither the adoption statute nor the grandparents’ visitation statutes require notice to a grandparent of a pending adoption petition. This could leave open the door to grandparents engaging in a race to the courthouse to conclude an adoption prior to the grandparent’s visitation petition. CA stated that the pending adoption petition in this case was such a significant fact that Grandmother and Husband were required to inform TC of its existence. CA found that Grandmother’s and Husband’s concealment of adoption petition was a “tactical maneuver to circumvent [Grandfather’s] right” to have TC determine whether visitation was in Grandchild’s best interest, and that such manipulation of the timing of the adoption precluded them from successfully challenging Grandfather’s standing.
Following the modified best interest standard for grandparents found in Vibbert v.
Vibbert, 144 S.W.3d 292 (Ky. App. 2004), CA determined that, because there was strong evidence that Grandfather and Grandchild had a rewarding and loving relationship during Daughter’s lifetime and that Grandchild had established ties to Grandfather’s family, it was in Grandchild’s best interests to have visitation with Grandfather as established by TC.
Michelle
Eisenmenger Mapes
Diana L. Skaggs +
Associates
Mother appealed the termination of her parental rights to her two infant children. Mother alleged TC made three errors. First, she alleged it was error to permit the children’s therapists to testify about statements made to them by the children about the abuse. CA held that the testimony of the therapist was admissible under KRE 803(4). CA opined that the statements were made to the therapist so that they could determine what happened and determine what treatment was necessary. Therefore, the statements were made for the purpose of receiving medical treatment.
Next, Mother argued that not allowing the children to testify violated her constitutional rights. CA held that it was not error to refuse to allow the children to testify. CA reasoned that the children were questioned by the court in camera with Mother’s counsel present. Therefore, she had been afforded an opportunity to question the children. TC did not error in its finding that it would not be in the best interest of the children to make them testify.
Finally, Mother alleged that the TC erred in holding that she
had failed to provide for the essential needs of her children. CA opined that
Mother’s failure to pay court ordered child support, while the children were
in state custody, and the fact that she still resided with the children’s
stepfather, and abuser, who paid all of the household bills was substantial
evidence to prove she had failed to provide for their essential needs.
Furthermore, CA opined that even if it was error it was harmless because her
rights would have been terminated based on the abuse.
Linda
Dixon Bullock
Diana L. Skaggs +
Associates
Larkins appeals TC's entry of summary judgment for Miller on their claims for breach of contract and fraud stemming from the sale of an unimproved lot in a new subdivision being developed by Miller. At the time of sale, Larkins alleged that Miller advised them that the slope of the lot would result in additional construction costs that would not exceed a few thousand dollars. Larkins completed the sale and signed a formal Release Agreement that disclaimed any reliance on Miller's representations about slope stability and released Miller from all claims and demands relating directly or indirectly to slope stability issues. When the Larkins finally moved forward with construction 5 years later, they learned that the slope of the lot would result in an additional $83,000 in building costs. Larkins moved forward with this lawsuit, which Miller defended on the clear wording of the Release. Larkins countered that the Release was invalid because it wasn't supported by valuable consideration.
On appeal, the COA summarily rejected Larkins' argument that the Release was not enforceable, pointing out that the Release was executed by them on the same date the check was written by them to Miller for the full purchase price of the property. The COA held that the check constituted valuable consideration and therefore validated the Release. Consequently, the TC's entry of SJ for Miller was affirmed.
Chad Kessinger
Schiller, Osbourn, Barnes &
Maloney
CA affirms TC order denying appellant Tina Conner's motion to amend her complaint and granting appellee Paul Patton's motion to dismiss her action. (Franklin Cir. Ct., Hon. Roger L. Crittenden, Judge, presiding)
Appellant and appellee had a sexual relationship while appellee was Governor of the Commonwealth of Kentucky. Conner alleges that, after she terminated the relationship, her construction business "no longer had access to public construction projects and her nursing home suffered from a pattern of harassment from [state] agencies." Conner filed suit against Patton and the Commonwealth, raising various claims including sexual harassment, intentional infliction of emotional distress, outrage, defamation and waste. All claims against the Commonwealth were dismissed, as were the sexual harassment and waste claims against Patton, individually and in his official capacity. Conner appealed, but the CA affirmed the dismissals. During that appeal, the TC also entered an order dismissing Conner's defamation claim against Patton, which Conner did not appeal, leaving only the IIED claim against Patton.
Conner then moved for leave to file a 2nd amended complaint. In response, Patton moved to dismiss her claim for want of prosecution, which was granted, and denied her motion to amend and her subsequent motion to alter, amend or vacate.
CA holds that denial of Conner's amendment was proper in that, if Patton enforced laws and regulations against her nursing home, if his actions fall under his lawful authority, his motives are irrelevant. Further, Conner cannot prove Patton's actions before she exercised her constitutional right to free speech were retaliatory and in violation of those rights. Also, Conner did not make any of the necessary allegations to succeed in a due process claim. Conner's slander per se claim was properly dismissed as it is based on the same allegations of the defamation claim, which was dismissed and not appealed.
As to the IIED claim, the CA holds that "[t]he fact that Patton was in a powerful position as the Governor of Kentucky, and that he therefore was able to express vindictiveness relating to their personal relationship in a manner which could interfere with her financial stability or career, does not elevate the situation to the level of outrageousness required for a plaintiff to recover on a claim for IIED.
As to her failure to prosecute her claims, Conner did not take any action in this matter, other than to change counsel, from January 2003 until October 2005.
Digested by John
Hamlet
Sitlinger, McGlincy,
Theiler & Karem
The ALJ’s opinion dismissed claimant Greene's claim for permanent disability income benefits and granted partial future medical benefits for injuries arising from a work-related collision. The ALJ also declined to review, citing a lack of jurisdiction, an agreement reached between Greene and his former employer, Paschall Truck Lines (hereinafter “PTL”), pertaining to payment of a subrogation lien. A petition for reconsideration filed by Greene was summarily dismissed by the ALJ, and the WCB then affirmed the ALJ's decision in all respects and this appeal ensued.
Although the COA agreed with the Board’s opening premise that tort damages paid by a tortfeasor to an employee, employer or employer’s carrier are paid outside the Workers’ Compensation Act and only a court may review them, COA did NOT agree that the use of tort recovery funds to pay an employer’s subrogation lien somehow converts questions about the amount of subrogation due the employer into part and parcel of the tort claim. Nor did the COA agree that an employee and his employer’s workers’ compensation carrier, simply by reaching a settlement, can transform a subrogation issue that would normally be within the jurisdiction of an ALJ into a tort issue that can only be reviewed by a trial court and thus the COA did not agree that the use of tort recovery funds to pay an employer’s subrogation lien somehow converted questions about the amount of subrogation due the employer into part and parcel of the tort claim. In light of Kentucky’s statutory scheme, it is wholly appropriate that the ALJ review the terms of the (settlement) agreement between the claimant Greene and his former employer PTL’s carrier.
Since the ALJ is the ultimate arbiter when it comes to resolving workers’ compensation subrogation issues,
he erred in declining to exercise jurisdiction and the Board erroneously affirmed that decision.
The ALJ can and should disapprove any agreement submitted for review that does not comport with the beneficent purpose of the Workers’ Compensation Act.
COA further found nothing to prohibit an ALJ from granting future medical expenses for a specific work-related injury to the exclusion of others.
COA affirmed that portion of the Board's opinion dismissing Greene’s claim for permanent disability income
benefits and the Board’s opinion limiting PTL's responsibility for future medical expenses to
the ongoing removal of glass as it works its way to the surface of Greene’s skin.
However, because COA held the ALJ had jurisdiction to review the settlement agreement reached between Greene and
PTL, but declined to exercise it, that portion of the opinion was vacated
and remanded.
Peter Naake
Priddy, Cutler,
Miller & Meade
COA affirmed ALJ's dismissal of worker's claim for disability and medical benefits against his employer. A party challenging the ALJ's factual findings must do more than simply present evidence supporting a contrary conclusion to justify reversal. COA held the the evidence relied upon by the ALJ is evidence of substance that supports his opinion, and the Board was without the authority to conclude otherwise.
The facts in this case involved the claimant experiencing the onset of pain in her hands and wrists while unloading packages weighing between sixty and one hundred pounds from a truck. She was initially seen in the emergency room at Baptistworx, where she reported a history of having experienced similar complaints since May 21, 2001. Later, she claims to have developed shoulder and neck pain. Even so, she continued to work at UPS from the alleged injury date until October 4, 2002.
UPS also submitted a surveillance videotape in which the
claimant Mirzaee was observed driving her car and grocery shopping with
the investigator testifying Mirzaee was able to load groceries into her car and then transfer those groceries into her residence without assistance. He also testified Mirzaee displayed no limited range of movement and no outward signs of pain.
Mirzaee attempted to mitigate the impact of the surveillance videotape by explaining it was obtained soon after she sustained her alleged work-related injuries and
while she continued to work and the effects of her work-related injuries worsened over time and now cause chronic, debilitating pain and physical limitations
that prevent her from engaging in any work and severely limit her activities of daily living.
A party challenging the ALJ's factual findings must do more than simply present evidence supporting a contrary conclusion to justify reversal.
Contrary to Mirzaee's contention, in reaching his findings of fact and conclusions of law, the ALJ carefully
weighed all of the voluminous findings and opinions expressed by the numerous physicians who had evaluated and/or treated
Mirzaee. Since the evidence relied upon by the ALJ is evidence of substance that supports his opinion, the Board was without the authority to conclude otherwise.
ALJ and WCB affirmed.
Peter Naake
Priddy,
Cutler, Miller & Meade
NOT PUBLISHED (COA)
STRAUSBAUGH V. H & BLOCK FINANCIAL ADVISORS, INC.HARROD
CONCREDTE
TORTS: TRESPASS, STATUTE OF LIMITATIONS, ACCRUAL, AND LIMITING DAMAGES TO
LAST FIVE YEARS FOR CONTINUING TRESPASS
2005-CA-001712
NOT TO BE PUBLISHED: 130
DATE RENDERED: 10/26/2007
VANHORN
V. JORDAN
PROPERTY: BOUNDARY LINE DISPUTE, TAKING OF LUMBER, AND DAMAGES
TORTS: TAKING OF LUMBER
DAMAGES: MEASURE OF FOR TREES
2006-CA-000321
NOT TO BE PUBLISHED: 103
DATE RENDERED: 10/26/2007
JONES
V. COM.
CRIMINAL: COUNSEL COMPETENCY IN GUILTY PLEA
2006-CA-000619
NOT TO BE PUBLISHED: 83
DATE RENDERED: 10/26/2007
PRAY
V. COM.
CRIMINAL: SPEEDY TRIAL, CASE BY CASE DETERMINATION
2006-CA-000961
NOT TO BE PUBLISHED: 79
DATE RENDERED: 10/26/2007
RAWLINGS
V. SMITH
PROPERTY: SALE OF LAND, WARRANTIES ON SALE (AS IS, FITNESS, ETC. ISSUES)
TORTS: FRAUDULENT MISREPRESENTATION NOT FOUND
2006-CA-001141
NOT TO BE PUBLISHED: 72
DATE RENDERED: 10/26/2007
CRAFT
V. CRAFT
CIVIL PROCEDURE: DIRECTED VERDICT, SUFFICIENCY OF EVIDENCE FOR JURY
VERDICT
2006-CA-001176
NOT TO BE PUBLISHED: 120
DATE RENDERED: 10/26/2007
BUSH
V. QUALITY CONTROL SERVICES
WORKERS COMP: JURISDICTION AND DISMISSING CLAIM FOR LACK OF STANDING FOR
FAILURE TO TIMELY PERFECT APPEAL
2006-CA-001623
NOT TO BE PUBLISHED: 81
DATE RENDERED: 10/26/2007
RATLIFF
V. POTTER
TRIAL: INSTRUCTIONS AND FAILURE TO PRESERVE ERROR BY PRO SE LITIGANT
2006-CA-001727
NOT TO BE PUBLISHED: 76
DATE RENDERED: 10/26/2007
KELLY
V . KELLY
INSURANCE: BENEIFICIARY CHANGES ON LIFE INSURANCE CONTRACT REQUIRE
SUBSTANTIAL COMPLIANCE; DEFAULT PROVISIONS IN POLICY
2006-CA-002103
NOT TO BE PUBLISHED: 79
DATE RENDERED: 10/26/2007
SALISBURY
V. HALL
CIVIL PROCEDURE: AFFIRMED SUMMARY JUDGMENT, OPPOSITION CANNOT DEFEATH
WITHOUT PRESENTING SOME EVIDENCE OF GENUINE ISSUE OF MATERIAL FACT
2006-CA-002217
NOT TO BE PUBLISHED: 91
DATE RENDERED: 10/26/2007
THIENEMAN
MULTIFAMILY PROPERTIES, LLC V. THORNTONS, INC.
PROPERY: REAL ESTATE, EASEMENT, SERVIENT ESTATE
2006-CA-002234
NOT TO BE PUBLISHED: 79
DATE RENDERED: 10/26/2007
MIDDLETON
V. HACKER
TORTS: PREMISES LIABILITY, BUSINESS INVITEE AND OPEN AND OBVIOUS DANGERS;
NEGLIGENT ACTS OF EMPLOYEE VS. INDEPENDENT CONTRACTOR
2006-CA-002364
NOT TO BE PUBLISHED: 89
DATE RENDERED: 10/26/2007
JARBOE
V. COM.
CRIMINAL: SEARCH AND SEIZURE, PERSON MERELY PRESENT AND 4TH AMENDMENT
STANDING
2006-CA-002470
NOT TO BE PUBLISHED: 90
DATE RENDERED: 10/26/2007
RANKIN
V. COM.
CRIMINAL: SPARKS, BOYKIN AND CRAWFORD; CERTIFICATE OF COUNSEL,
WRITTEN GUILTY PLEAS
2006-CA-002548
NOT TO BE PUBLISHED: 88
DATE RENDERED: 10/26/2007
MANIES
V. WARF
FAMILY LAW: PROPERTY INCREASES DUE TO INVESTMENT OF MARITAL FUNDS
2007-CA-000611
NOT TO BE PUBLISHED: 83
DATE RENDERED: 10/26/2007
COOK
V. FIELD PACKING CO. LLC
WORKERS COMP: CLAIM TIME BARRED PER SOL
2007-CA-000788
NOT TO BE PUBLISHED: 90
DATE RENDERED: 10/26/2007
JONES
V. JONES
FAMILY LAW: CUSTODY MODIFICATION AND CHANGE IN CIRCUMSTANCES
2007-CA-000896
NOT TO BE PUBLISHED: 82
DATE RENDERED: 10/26/2007
DYER
V. M.W. MANUFACTURERS HOLDING CORP.
WORKERS COMP: APPELLATE REVIEW STANDARD
2007-CA-001164
NOT TO BE PUBLISHED: 92
DATE RENDERED: 10/26/2007
Contributors: