NOVEMBER 1, 2007 SUPREME COURT OF KENTUCKY DECISIONS (Vol. 2007:52)
PUBLISHED
(SCOKY)
Digested by John
Hamlet
Sitlinger, McGlincy,
Theiler & Karem
If you're the kind of person who can get excited about civil procedure, this case is for you. The SC addresses the issue of whether the savings provision in KRS 413.270 applies where the original forum dismissed a case on ground of forum non conveniens (FNC) and the claim was re-brought in another proper venue within the extended time allowed. On April 28, 2002, Ms. Smith was injured in a slip-and-fall on Dollar General's (DG) premises in Casey County. She filed suit on the last day of the one-year SOL in Jefferson County; there was no contention that Jeff. Co. lacked jurisdiction (JD) or was an improper venue, but the Jeff. Circuit Court dismissed the claim under FNC because the accident and injury occurred, and most of the witnesses resided in, Casey Co. Fifteen days after the dismissal, Ms. Smith filed in Casey Circuit Court, but by that time the SOL had run. She pled that the SOL was tolled under KRS 413.270, but the Casey Court held that statute was inapplicable and dismissed the case as time-barred. The Court of Appeals reversed, holding that KRS 413.270 was applicable to a case timely brought but previously dismissed on grounds of FNC. The majority of the SC affirmed this decision, with Justice Abramson concurring and Justice Minton dissenting.
KRS 413.270 provides for a 90-day savings period where claims are brought in a court having no JD and applies to claims brought "in due time and good faith" which are adjudged to have abeen brought in a court with "no JD." The SC notes that while the statutory language speaks to JD, it has long held that dismissal for improper venue also triggers the saving statute. D & J Leasing, Inc. v. Hercules Galion Prods., Inc., 429 S.W.2d 854; Shircliff v. Elliott, 284 F.2d 947 (6th Cir.). Shircliff held that in view of the remedial purpose of the saving statute and the frequent confusion of JD and venue, "JD" in KRS 413.270 should be broadly construed to achieve its remedial purpose.
DG argued that KRS 413.270 should be read literally, but the SC held that there is no reasonable explanation for the legislature to have acted to save claims brought in an improper JD, but denied the saving provision to claims brought in an improper venue. It concluded with the Shircliff court that the legislature used the term "JD" broadly to include the concept of place as well as the concept of power.
The SC then reviewed the Casey Co. order of dismissal with due regard for the basis of the Jefferson Co. order of dismissal, FNC. FNC was thoroughly considered in Beaven v. McAnulty, 980 S.W. 2d 284, where the SC granted a writ of prohibition holding that the trial court acted beyond its JD in transferring a civil action from the Jeff. Cir. Ct. to the Marion Cir. Ct. on grounds of FNC. Beavens held that Kentucky's doctrine of FNC only empowered a trial court to dismiss or stay an action before it, not to transfer it. Shortly after that case, the legislature adopted KRS 452.105, a statute mandating that a trial court transfer a case upon a determination that the venue selected was improper. The SC noted that this statute has been construed as requiring transfer rather than dismissal. The question remains, though, as to whether transfer is available upon a determination of FNC, and the SC held that it is. It noted that there is no fundamental distinction between venue and FNC: venue derives from a statutory mandate as to which county (or counties) is the proper place for a claim to be heard. FNC presupposes proper venue but posits that another county where venue would also be proper is a more convenient forum and calls for a discretionary ruling by a trial court to that effect. FNC is a subdivision of venue requiring the exercise of trial court discretion; the SC ruled that it must follow that a dismissal on the grounds of FNC would necessarily be a venue based dismissal resulting in applicability of the savings statute, KRS 413.270.
HERE'S THE BIG IDEA IN THIS CASE, AND I QUOTE: "Notwithstading language of Beaven to the contrary, in the future, cases should not be dismissed on the grounds of FNC." Remember it, write it down, take a picture.
Justice Minton dissented, noting that the proper role of the courts in interpreting statutes is to determine the intent of the legislature as expressed in "plain language" without resort to guessing about what the legislature intended. He therefore could not agree with the majority's assumption that when the legislature used the words "no JD" in KRS 413.270, it intended to conflate three distinct legal concepts--JD, venue, and FNC. He stated he felt it was time to clean up loose language by overruling certain precedents to the extent that imprecise use of those three legal terms has distorted the saving statute well beyond is express provisions. He finds no reason to assume the legislature meant FNC when it used the legal terms of "improper venue" in KRS 452.105 and "no JD" in KRS 413.270. He would construe the savings statute at issue, as well as the closely related transfer statute, according to the legal meanings of the terms used in the statutes and would overrule ambiguous authority to the contrary. He noted that the majority freely mixed legal concepts by equating JD with venue and improper venue with FNC, and he argued that the result contravenes the legislature's directive in KRS 446.080(4) that legal terms in statutes be construed by their "peculiar and appropriate meaning in the law." Finally, he noted that while some argue expanding the grace granted by the saving statute is good because more cases get "saved" from dismissal on SOL grounds, he would contend if the legislature wants to broaden the protection of KRS 413.270 to cases initially filed with the SOL in a court that ultimately declined to hear the case on FNC grounds, then the legislature can amend the statute or provide for it.
Justice Abramson concurred with the majority, in that she did not feel Ms. Smith should be punished for her counsel's reliance on the overly broad reading of the saving statute, but she stated that she felt the dissent reflects what she believes is the correct interpretation of the two statutes.
Digested by Cherry Guarnieri
Held that participants in a bidding process for public contracts have sufficient interest to seek relief where the process is infected with fraud or dishonesty. To that end, a disappointed bidder or competitor may challenge the award of a public contract to another bidder upon a showing of fraud, collusion or dishonesty.
Standing requires that a party have "a judicially recognizable interest in the subject matter of the suit."
Enactment of the Kentucky Model Procurement Code (KMPC) effected substantial change. As recognized by this Court in the KMPC has changed the rules of the game, providing access not previously available to challenge and investigate the propriety of government purchasing contracts.
Digested by Michael Stevens
SC affirmed CA's holding that TC erred by failing to give an instruction on possession of marijuana as a lesser included offense of cultivation of marijuana. A trial court must give a lesser-included offense instruction "only if, considering the totality of the evidence, the jury might have a reasonable doubt as to the defendant's guilt of the greater offense, and yet believe beyond a reasonable doubt that he is guilty of the lesser offense." Here, SC found that under the evidence, a juror could have found that Swift possessed the marijuana plants and potted seeds under a theory of constructive possession.
Digested by Scott C. Byrd
Olgin and Byrd
SC affirmed Berryman's convictions and 45 year sentence for wanton murder and assault in the first degree. TC did not err by denying Defendant's motion for a directed verdict. The evidence in this case showed that Berryman (1) drove at an alarmingly high rate of speed ; (2) ignored the conditions of the road and other vehicles ahead; (3) made no effort to brake or swerve before overtaking and ramming the Deatons' vehicle, even though the Deatons' vehicle was visible; and (4) had traces of Xanax in his system. Berryman's egregious misconduct is obviously evidence of more than just a driver who had an accident while speeding and not paying close attention to the road. Instead, Berryman's tragic misconduct clearly manifests an extreme indifference to human life.
TC did not err in denying Defendant's motion to exclude evidence regarding illicit pills. Although the drug-related charges against Berryman had been severed, the evidence about the drugs was still relevant to prove that Berryman's conduct rose to the level of wantonness necessary for murder and assault in the first-degree convictions.
Digested by Scott C. Byrd
Olgin and Byrd
SC reversed Defendant's convictions for incest, rape, and sodomy due to TC's limits on the testimony of Jones's DNA expert. Jones's conviction for bribing a witness is affirmed because the improper limitation on Dr. Melekovets's testimony had no discernible bearing upon that conviction .
Jones had furnished a copy of Dr. Melekovets's one-page report to the Commonwealth as pretrial discovery several months before trial. Dr. Melekovets's report indicated that he found no Y-chromosomes on the vaginal swab taken from M.G . Implicitly underlying that conclusion is the obvious fact that Dr. Melekovets fundamentally disagreed with the Commonwealth's DNA expert's conclusion that the male DNA found in the vaginal swab taken from M.G. matched Jones. After all, a lack of Y-chromosomes necessarily rules out a match for Jones's--or any other male's-DNA on the vaginal swab. In other words, it surely could not have come as a surprise to the Commonwealth that Dr. Melekovets would disagree with the conclusion and/or analytical process used by the Commonwealth's DNA expert in light of the conclusions contained in Dr. Melekovets's report. So, SC did not equate permitting Dr. Melekovets to explain why he found fault with the Commonwealth's DNA expert's conclusion and/or methodology to be impermissible "sandbagging ."
So the conclusion of the Court of Appeals that the trial court properly limited Dr. Melekovets's testimony (because Jones committed a discovery violation when he did not provide the Commonwealth with the entire underlying bases for Dr. Melekovets's testimony) is premised upon an impermissibly broad interpretation of RCr 7.24. Therefore, since Jones provided the Commonwealth all that was required in discovery concerning Dr. Melekovets's report, the trial court erred when it relied upon RCr 7.24 to limit Dr. Melekovets's testimony.
On remand, the pornographic images found on Defendant's computer may not be introduced and shown to the jury unless a nexus is shown between the images and the victim's testimony.
Digested by Scott C. Byrd
Olgin and Byrd
SC reversed CA and reinstated TC's order denying Defendant's RCr 11.42 motion to vacate alleging ineffective assistance of counsel. Bowles' conviction for murder and life sentence reinstated. CA opinion focused on two issues: 1.) the failure of Bowles' attorney to object to the introduction of evidence of Bowles being involved in a hit and run driving accident over two weeks after the murder; and 2.) the failure of trial counsel to preserve objection over limited impeachment evidence concerning Bowles' brother's previous rape conviction. The alleged errors, alone or in combination, do not rise to the level of "errors so serious that counsel was not functioning as the `counsel' guaranteed -defendant by the Sixth Amendment ."
Digested by Scott C. Byrd
Olgin and Byrd
Digested by Scott C. Byrd
Olgin and Byrd
Mom appealed CA’s opinion affirming TC’s order awarding joint custody of child to parents and primary residence to Dad, claiming that TC erred when it failed to resolve Dad’s custody rights based on DNA evidence indicating he was not biological father, and by applying equitable estoppel in its custody determination.
FACTS:
Mom gave birth to child during marriage of parties. At birth, Dad was in the delivery room, cut umbilical cord, and was named on birth certificate. Dad was led to believe that he was biological father to child, and was deeply involved in Child’s life as his father. Three and a half years later, Mom filed for divorce, and then amended her petition, alleging for the first time that Dad was not Child’s biological father and seeking court-ordered DNA testing to prove her claim. DNA evidence established that Dad was not Child’s biological father. TC appointed a custodial evaluator, who determined that the severance of Dad’s and Child’s relationship would result in severe emotional and psychological harm to Child. TC found that Mom was equitably estopped from challenging Dad’s custody rights based on DNA testing, that DNA test was irrelevant to issue of custody, and awarded joint custody to the parties with primary residence to be with Dad. CA affirmed TC on appeal.
ARGUMENTS AND ANALYSIS:
Mom argued that DNA tests rebutted the presumption of paternity in KRS 406.011 and thus triggered the application of KRS 406.111, requiring a resolution of paternity. Mom further argued that equitable estoppel cannot be applied in custody cases and that even if applied, Dad failed to establish the necessary elements of equitable estoppel.
“A party asserting equitable estoppel must show the following elements: (1) Conduct, including acts, language and silence, amounting to a representation or concealment of material facts; (2) the estopped party is aware of these facts; (3) these facts are unknown to the other party; (4) the estopped party must act with the intention or expectation his conduct will be acted upon; and (5) the other party in fact relied on this conduct to his detriment.” SC found that all these requirements were met in this case, as Mom’s acts, language and silence were all aimed at misleading Dad into believing he was Child’s father and at developing the father-son relationship. Though Mom argued that Dad failed to show reliance and conduct to his detriment, pointing to the fact that Dad had testified that he would not have done anything differently in his relationship with Child, SC disagreed. SC noted that Dad’s willingness to continue his relationship with Child had he known the truth is not the same as saying he would have taken no action at all. Mom’s failure to inform Dad of Child’s paternity denied Dad the opportunity to seek legal advice as to the relationship with Child and his rights and obligations with regard to Mom and Biological Father. SC noted that it followed other jurisdictions in its determination that equitable estoppel could be applied in custody cases, and that KY CA had applied the common law principle of equitable estoppel in S.R.D. v. T.L.B., 174 S.W.3d 502 (Ky. App. 2005).
SC held that Mom, having encouraged Father/Son relationship between Dad and Child, could not now deny it, and that under the unique circumstances of the case, “equitable estoppel precludes [Mom] from challenging [Dad’s] status as [Child’s] father, a status she created and accepted.”
Digested by Michelle
Eisenmenger Mapes
Diana
L. Skaggs + Associates
The Supreme Court denies Edwards' petition for writ of prohibition that sought to bar the enforcement of the trial court's Order compelling Edwards to disclose proprietary business records of both his company that is a named party as well as non-party companies he also owned as sole partner, the Court ruling that such documents were discoverable from Edwards under CR 34.01 for both the party and non-party companies since all requested records were undeniably in the possession, custody or control of the party upon whom the request was served (Edwards).
Digested by Paul O'Bryan
O'Bryan
and Denbow
Reopening was denied on the grounds of mistake or newly discovered evidence where autopsy showed a non-work related cause of the claimant’s condition, but the ALJ’s original decision in the claimant’s favor, while he was alive was not appealed.
Digested by Peter Naake
Priddy, Cutler,
Miller & Meade
The Supreme court affirmed an award of medical benefits based on cumulative trauma, which occurred over a several year period, finding that the last two years of cumulative trauma was sufficient to exacerbate the time-barred cumulative trauma.
Digested by Peter Naake
Priddy, Cutler,
Miller & Meade
The Supreme Court held that the claimant’s counsel failed to argue in his brief that the statute of limitations on a previous injury was tolled by payment of TTD on a subsequent injury to the same body part, thus abandoning that argument.
Digested by Peter Naake
Priddy, Cutler,
Miller & Meade
The Supreme Court denies Edwards' petition for writ of prohibition that sought to bar the enforcement of the trial court's Order compelling Edwards to disclose proprietary business records of both his company that is a named party as well as non-party companies he also owned as sole partner, the Court ruling that such documents were discoverable from Edwards under CR 34.01 for both the party and non-party companies since all requested records were undeniably in the possession, custody or control of the party upon whom the request was served (Edwards).
Digested by James
R. Chadword Kessinger
Schiller, Osbourn, Barnes &
Maloney
ATTORNEYS
Refer to minutes, page 9.
NOT PUBLISHED (SCOKY)
GOETZ V. COM.WILLIAMS V. COM.
CRIMINAL
2005-SC-000472-MR.pdf
NOT TO BE PUBLISHED:
DATE RENDERED: 11/01/2007
THURMAN V. COM.
CRIMINAL
2005-SC-000707-MR.pdf
NOT TO BE PUBLISHED:
DATE RENDERED: 11/01/2007
SOUTH V. COM.
CRIMINAL
2005-SC-000976-MR.pdf
2005-SC-000977-MR.pdf
NOT TO BE PUBLISHED:
DATE RENDERED: 11/01/2007
FRONING V. COM
CRIMINAL
2006-SC-000101-MR.pdf
NOT TO BE PUBLISHED
DATE RENDERED: 11/01/2007
UTSEY V. COM.
CRIMINAL
2006-SC-000298-MR.pdf
NOT TO BE PUBLISHED:
DATE RENDERED: 11/01/2007
DEATON V. HAZARD APPALACHIAN REGIONAL HOSP.
WORKERS COMP
2006-SC-000577-WC.pdf
NOT TO BE PUBLISHED:
DATE RENDERED: 11/01/2007
ANDERSON V. MCCOY ELKHORN COAL
WORKERS COMP
2006-SC-000773-WC.pdf
NOT TO BE PUBLISHED:
DATE RENDERED: 11/01/2007
FANT V. COM.
CRIMINAL
2006-SC-000862-MR.pdf
NOT TO BE PUBLISHED:
DATE RENDERED: 11/01/2007
TRANSIT AUTHORITY OF RIVER CITY V. STEINHAUER
WORKERS COMP
2006-SC-000883-WC.pdf
NOT TO BE PUBLISHED:
DATE RENDERED: 11/01/2007
UNIVERSITY OF KY MEDICAL CENTER V. HON. GARY PAYNE
WRIT OF PROHIBITION; DISCOVERY
2007-SC-000256-MR.pdf
NOT TO BE PUBLISHED:
DATE RENDERED: 11/01/2007
Contributors: