Nov. 9, 2007 KENTUCKY COURT OF APPEALS DECISIONS (2006:54)
PUBLISHED (COA).
BROOKS V. LEXINGTON-FAYETTE URBAN COUNTY HOUSING AUTHORITYShort digest: In this case, a plaintiff was awarded post judgment interest against a state agency which appealed all the way to SCOKY and prevailed on other issues but did not appeal the award of post-judgment interest. When the trial court heard the matter on remand, the agency's motion to rescinded and set aside the first award of post judgment interest was granted. Even though the law in Kentucky provides that a state agency is not liable for post judgment interest on an award, the state agency in this case had failed to appeal that issue the first time, and thus that portion of the award is final and subject to the law of the case on remand and the trial court cannot rescind and set aside the original award of post-judgment interest.
Longer digest:
This appeal reached COA for the second time having a 15-year-long history of litigation. The issue presented
was whether the trial court erred, upon remand from the Kentucky Supreme Court and without the Court’s instruction, in revoking an award of post-judgment interest on the basis of sovereign immunity.
In 1992, Brooks initiated a suit against her former employer, Lexington-Fayette Urban County Housing Authority (Housing Authority) for race discrimination
and retaliation in contravention of the Kentucky Civil Rights Act (KCRA).
At trial, the jury found for the Housing Authority on Brooks' claim of race discrimination, but awarded her $40,000 in damages on her claim of retaliation.
The court allowed post-judgment interest at 12% as set forth in Kentucky Revised Statute (KRS) 360.040. The trial court also awarded Brooks her costs and attorney fees “in such amount as the Court shall determine upon application by Plaintiff.”
The first appeal that went up to the
Supreme Court was on issues other than the award of post-judgment interest.
Upon remand of the case, the Housing Authority relied on a Supreme Court
decision decided the same day as Brooks (Ky. Dept. of Corrections v.
McCullough, 123 S.W.3d 130 (2003) in which the Supreme Court held that a state agency is not liable for post-judgment interest on a judgment obtained under the
KCRA. The Housing Authority then moved the circuit court to eliminate
post-judgment interest from the 1997 which was sustained by circuit court
in reliance upon Powell v. Board of
Education of Harrodsburg, 829 S.W.2d 940 (1992) for the proposition that an award of interest pursuant to KRS 360.040 is not applicable to judgments against state agencies.
COA held that when the trial court rescinded that portion of its original Judgment allowing interest, it did so contrary to the law of the case doctrine applicable to this case. Consequently, the circuit court’s judgment that
reinstates the June 7, 1999, judgment without the allowance of post-judgment interest
is reversed.
SCOKY has plainly stated that “a judgment is not final so long as post judgment motions are available and time for making such a motion remains[.]”
Kurtsinger v. Bd. Of Trustees of Kentucky Retirement Systems, 90 S.W.3d 454, 458 (Ky. 2002). Moreover, the Supreme “Court has made clear that a ruling on a post-judgment motion is necessary to achieve finality[.]” Gullion v.
Gullion, 163 S.W.3d 888, 891 (Ky. 2005).
The law of the case doctrine is similar to but distinct from the doctrine of res judicata. “There is a difference between such adherence (the law of the case doctrine)
and res adjudicata. One directs discretion; the other supersedes it and compels judgment.
In other words, in one it is a question of power, in the other of submission.” Southern Ry. Co. v.
Clift, 260 U.S. 316, 43 S.Ct. 126, 67 L.Ed. 283, 284 (1922).
The McCullough Court concluded that a state agency is immune from any judgment interest entered upon the
KCRA. Thus, there
occurred no change of law during the first appeal.
No appellate decision affirmatively held in the first appeal that interest may be imposed on
KCRA-based
judgments. It is the consequence of valid judgments coupled with operation of a valid legal doctrine – the law of the case doctrine – that binds the Housing Authority to
pay the interest at issue. The judgment of the Fayette Circuit Court is
REVERSED and REMANDED for disposition in accordance with this opinion.
Digested by Michael Stevens
Since the Supreme Court's landmark decision in Terry v. Ohio,
it has been well recognized that a police officer can subject anyone to an investigatory stop if “he is able to point to some specific and articulable fact which, together with rational inferences from those facts, support a reasonable and articulable suspicion that the person in question is engaged in illegal activity.”
The initial stop of Grigsby was based upon Officer Kunkel's reasonable and articulable suspicion that Grigsby and Mason were involved in a domestic dispute.
It is established precedent that when a person properly stopped voluntarily consented to a search, the search cannot be challenged on the basis of whether the continued detention was justified by a reasonable suspicion.
It is equally settled law that the owner's property right is superior to that of one in mere temporary possession of the vehicle and, therefore, the owner's consent negates the warrant requirement. Anderson v. United States, 399 F.2d 753, 756 (10th Cir. 1968).
The circuit court properly denied Grigsby's motion to suppress. The judgment of conviction is affirmed.
Digested by Michael Stevens
HORN
V. COM.
CRIMINAL: SEARCH AND SEIZURE, POISONOUS TREE AND INDEPENDENT SOURCE
2006-CA-002386
PUBLISHED: AFFIRMING
PANEL: THOMPSON PRESIDING; NICKELL AND STUMBO CONCUR
COUNTY: GRAYSON
DATE RENDERED: 11/09/2007
COA affirmed conditional guilty plea to manufacturing methamphetamine and possession of anhydrous ammonia in an unapproved container with the intent to manufacture
methamphetamine finding the trial court did not err in denying defendant's
suppression motion.
In the case, the suspect/defendant
refused consent, and the police detained him at the scene and obtained a search warrant for the building.
During the execution of the search warrant, police
discovered several items connected to the manufacture of methamphetamine and also a firearm. Additionally, after exposure to ultraviolet light, it was confirmed that Horn’s
hands contained the substance used to treat the packaged items.
Horn filed a motion to suppress on the basis that the
search of the garage violated his Fourth Amendment protections against unreasonable searches and seizures. The Commonwealth responded that the search and seizure was valid under the exigent circumstances exception or, in the alternative, pursuant to a valid
search warrant.
In its written order, although finding that the
warrantless, forced entry of the garage was not justified under the exigent circumstances
exception, the trial court ruled that the subsequent search of the garage was constitutional because of the valid search warrant. While the forced entry by officers had been illegal, the court ruled that the warrant sufficiently removed the taint of the illegal entry because its issuance was entirely unrelated to any information acquired after the illegal entry into the garage.
Although Horn acknowledges that a search warrant was issued after the forced entry of the garage, citing
United States v. Chambers, 395 F.3d 563 (6th Cir. 2005), he contends that the incriminating evidence should have been suppressed as being the fruits of an illegal
search despite the issuance of the search warrant. COA disagreed with him.
It is well established that evidence is not to be excluded if the connection between the illegal police conduct and the discovery and seizure of the evidence is so attenuated as to dissipate the taint of the illegal police conduct. Segura v. United States, 468 U.S. 796, 805, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984).
Essentially, if the police discovered the subject evidence from an “independent source,” unrelated to their illegal conduct, the evidence can be admitted against a defendant despite his invocation of the exclusionary rule. Wilson v. Commonwealth, 37 S.W.3d at 748. Put simply, the exclusionary rule has no application when the police learned and discovered the incriminating evidence from a source “sufficiently distinguishable” (independent) from the initial illegality so that the evidence’s taint of illegality
is purged. Id.
In this case, the COA held the issuance of the search warrant, which was based solely on information obtained from the two confidential informants prior to the forced entry of the garage, constituted an independent source that was
sufficiently distinguishable from the illegal forced entry of the garage.
AFFIRMED.
Digested by Michael Stevens
Digest by Michael Stevens
On the motion of the Commonwealth, the trial court
revoked Henley's conditional discharge due to his violating its conditions. Prior to the revocation
hearing, Henley moved the court to declare KRS 532.043(5) unconstitutional. The court denied the motion, subsequently revoked Henley's conditional discharge, and ordered his reincarceration for three years. This appeal by Henley followed.
The issue on appeal is whether KRS 532.043(5) is unconstitutional as a violation of the separation of powers clause of the Kentucky Constitution because the statute gives the judicial branch, rather than the execution branch, the power to revoke
conditional discharge. COA held the statute is constitutional and thus affirmed
the reincarceration.
“The separation of powers doctrine precludes each of the three branches of
government from encroaching upon the domain of the other two branches.”
In Mullins v. Commonwealth, 956 S.W.2d 222, 223 (Ky.App. 1997), the COA noted that probation is a function of the judicial branch while parole is a function of the executive branch. In Pedigo v. Commonwealth, 644 S.W.2d 355, 358 (Ky.App. 1982), this court plainly stated that “[f]or all purposes, except supervision, or the lack
thereof, there is no difference between conditional discharge and probation.”
Therefore, KRS 532.043(5) does not violate the separation of powers clause by giving the power of revocation of conditional discharge
to the courts.
Digested by Michael Stevens
NALLEY V. BANIS, M.D.Despite the general rule that expert testimony is necessary in most medical malpractice cases,
the Nalleys premised their entire case on the exceptions to this general
rule and maintain that expert testimony is not needed to meet their burden.
Kentucky recognizes two exceptions to this requirement, both of which permit the inference of negligence even in the absence of expert testimony. See Perkins v.
Hausladen, 828 S.W.2d 652, 654-55 (Ky. 1992).
Expert testimony is not required if “'any layman is competent to pass judgment and conclude from common experience that such things do not happen if there
has been proper skill and care.'” Id. at 655
Regarding the second exception, if the defendant physician makes admissions of a technical character from which the jury can infer that he acted negligently, a plaintiff would not have to present expert testimony. Id. A "trial court's ruling with regard to the necessity of an expert witness [is] within the court's sound discretion."
The circuit court did not abuse its discretion in rejecting Nalleys' arguments that the exceptions to the necessity for expert witnesses apply to the case at hand.
Laypeople do not have sufficient general knowledge to recognize that infection
is the result of negligence.
Digest by Michael Stevens
COA vacated summary judgment dismissing Horace Collier's medical negligence claim and remanded for further proceedings.
Mr. Collier filed his complaint in the circuit court, alleging that after he was admitted to Caritas, he was not re-evaluated or treated in a timely manner and thus sustained personal injuries as a result of the Appellees' negligence.
Mr. Collier failed to meet the expert witness deadline and on February 2, 2006, a hearing was held wherein Mr. Collier requested an extension through February
28, 2006, to identify expert witnesses. This motion was granted, but Mr. Collier still failed to disclose an expert witness.
Both Appellees (doctor and hospital) then filed motions for summary judgment arguing that Mr. Collier could not meet his prima facie
case of negligence absent expert proof that their treatment of Mr. Collier failed to meet the required standard of care of medical professionals.
Rather than grant the summary judgment motion, the
court, after a hearing on the issue, made a determination that an expert was needed and granted the plaintiff thirty days to name an expert. This required the trial court to
continue the trial date. The trial court informed the plaintiff that if she failed to name an expert in the time given, dismissal would be granted.
This was consistent with the Kentucky Supreme Court which has noted that "the trial court properly exercised its discretion to announce a ruling on the necessity of an expert witness and to grant [plaintiff] a reasonable time in which to
procure an expert." Baptist Healthcare Sys., Inc., 177 S.W.3d at 681
However, the COA did conclude that the record compelled vacating summary judgment in this matter. Pursuant to CR 56.03, summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
The record showed that
Mr. Collier's answers to interrogatories and
admissions, signed under oath and penalty for perjury, indicate that Mr. Collier or his attorney had spoken to at least one physician regarding standard of care but was not yet prepared (or required) to name an expert at that time.
Under CR 56.03, this is sufficient to defeat summary judgment, at least at the stage in the proceedings and basis for which
summary judgment was requested, i.e., failure to have named an expert over seven months before the trial date.
The grant of summary judgment for Mr. Collier's failure to name a witness by the end of
February 28, 2006, was in error.
First, the court must make a determination that an expert is needed before ruling on summary judgment motions.
After that determination has been made, plaintiffs should be given a reasonable time to disclose experts. If plaintiffs fail to disclose expert witnesses in the time granted, sanctions may be appropriate.
However, if plaintiffs have not disclosed their expert witnesses on the eve of trial, dismissal would be warranted.
This Court had held that summary judgments are "not to be used as a sanctioning tool of the trial courts."
Thus, the order of the Jefferson Circuit Court is vacated, and this case is remanded for further proceedings consistent with this opinion.
Digested by Michael Stevens
Glenn Lutz petitions for the review of an opinion of the Workers’ Compensation Board (Board), entered
affirming the decision of an administrative law judge (ALJ) dismissing Lutz's workers' compensation claim.
His sole argument is that Kentucky Revised Statute (KRS) 342.316, which deals with
pneumoconiosis disease, is unconstitutional because it violates his right to equal protection under the law.
COA disagreed and thus affirmed.
Lutz argues that KRS 342.316 is discriminatory against coal miners complaining of pneumoconiosis, as opposed to other workers subjected to more immediate and traumatic injuries, because they are treated differently.
The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution requires that persons similarly situated must be treated alike. See Weiand v.
Bd. of Trustees of Kentucky Retirement Systems, 25 S.W.3d 88, 92 (Ky. 2000). Lutz contends that coal miners with pneumoconiosis are similarly situated with miners who have suffered more traditional-type injuries.
In short, COA disagreed that miners with pneumoconiosis and miners with traditional-type injuries are similarly situated. Therefore, in light of the differences in the two groups,
they need not be treated the same. Thus, there is no equal protection violation in this regard.
STUMBO, JUDGE, DISSENTS AND FILES SEPARATE OPINION. "Respectfully, I must dissent from the opinion of the majority. I would hold that the imposition of the clear and convincing
standard of proof is a clear violation of the Equal Protection Clause of both the United States and Kentucky constitutions...."
Digested by Michael Stevens
NOT PUBLISHED (COA)
HOLLIS V. HOLLISBRAUTIGAN
V. COM.
CRMINAL: Prior consistent statements; judicial recusal burden of proof;
codefendant's conviction admissibility in co-def' s trial
2005-CA-002106
NOT PUBLISHED: 110
DATE RENDERED: 11/09/2007
SPEER
V. COM.
CRIMINAL: Defendant's competency to stand trial
2005-CA-002477
NOT PUBLISHED: 118
DATE RENDERED: 11/09/2007
BARNETT
V. KY. RETIREMENT SYSTEMS
EMPLOYMENT: Administrative agency's determination of facts
2006-CA-000663
NOT PUBLISHED: 97
DATE RENDERED: 11/09/2007
COM.
V. LAMBERSON
CRIMINAL: Need proof of waive to be present at finding of guilty of DUI
2006-CA-001079
NOT PUBLISHED: 76
DATE RENDERED: 11/09/2007
JEFFRIES
V. CHAFFIN
CIVIL PROCEDURE: Plaintiff estopped for failure to notify bankruptcy of
potential asset
2006-CA-001260
NOT PUBLISHED: 90
DATE RENDERED: 11/09/2007
BROUGHTON
V. MOTORCYCLE SAFETY FOUNDATION, INC.
RELEASES: Affirmed release of negligence in advance of participation in
Motorcycle training course and no disparity in bargaining position
2006-CA-001839
NOT PUBLISHED: 93
DATE RENDERED: 11/09/2007
PRICE
V. KY DEPT. OF CORRECTIONS
CRIMINAL: Prison discipline
2006-CA-002083
NOT PUBLISHED: 80
DATE RENDERED: 11/09/2007
VANCE
V. VANCE
FAMILY LAW: Grandparent visitation, clear and convincing evidence in best
interest of child
2006-CA-002172
NOT PUBLISHED: 77
DATE RENDERED: 11/09/2007
EDMON
V. HARRIS, M.D.
MEDICAL NEGLIGENCE: Affirmed striking expert doctor's deposition testimony
following contempt for not answering questions
2006-CA-002502
NOT PUBLISHED: 113
DATE RENDERED: 11/09/2007
NUNLEY
V. NUNLEY
FAMILY LAW: Custody modification decision must be on facts rising since
prior decree
2007-CA-000098
NOT PUBLISHED: 128
DATE RENDERED: 11/09/2007
WILLIAMS
V. COM.
CRIMINAL: No error in requiring trial attorney to testify in
ineffective assistance of counsel claim
2007-CA-000506
NOT PUBLISHED: 115
DATE RENDERED: 11/09/2007
SIMON
V. SIMON
FAMILY LAW: Primary custodian for extracurricular affairs
distinguished as to residential parent
2007-CA-000714
NOT PUBLISHED: 82
DATE RENDERED: 11/09/2007
R.D.G.
V. COM.
FAMILY LAW: Abused or neglected child
2007-CA-000952
NOT PUBLISHED: 71
DATE RENDERED: 11/09/2007
OWENSBORO
MEDICAL HEALTH SYSTEM V. WORTHINGTON
WORKERS COMP: Standard of reversal of WCB; worsening impairment
2007-CA-001122
NOT PUBLISHED: 94
DATE RENDERED: 11/09/2007
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