Nov. 30, 2007 KENTUCKY COURT OF APPEALS DECISIONS (2006:58)
PUBLISHED (COA).
MCMAHAN V. COM.The Commonwealth committed reversible error when it urged the jury to punish McMahan to send a message to the community during sentencing. McMahan's twelve month sentence for unlawful transaction with a minor vacated. Because defense counsel made a contemporaneous objection to the prosecutor's comments and did not seek leniency for McMahan in either the guilt phase or penalty phase closing arguments, the facts were distinguishable from Brewer v. Commonwealth, 206 S.W.3d 343 (Ky. 2006). Interestingly, CA noted that the prosecutor herein was the same prosecutor at issue in the Brewer case. They felt that clearly he was on notice that utilizing the “send a message” argument was risky, at best. CA stated that "although the comments in this case do not rise to the level of palpable error as pointed out in Brewer, supra, we conclude that they do constitute reversible error herein."
COLLINS
V. COM.
CRIMINAL: RCR 11.42 motion untimely
2006-CA-000840
TO BE PUBLISHED: AFFIRMING
PANEL: DIXON PRESIDING; VANMETER, WINE CONCUR
COUNTY: LETCHER
DATE RENDERED: 11/30/2007
Patterson appeals TC's grant of summary judgment against him on his punitive damages claim against the Defendant Courtesy. Patterson had sued Courtesy over an incident in which the son of Courtesy's owner pulled a gun on Patterson and shot out his vehicle's tires during an attempted repossession of the vehicle that had been purchased from Courtesy. The son was convicted of wanton endangerment. At trial on the claims of assault and vicarious liability, the TC refused to instruct the jury on punitive damages against either Courtesy or Blair, Jr. Patterson obtained a judgment of $42.4K+ against both. Courtesy appealed, and the COA (2001-CA-02057-MR and 2001-CA-002107-MR) held that the evidence did not support a vicarious liability claim against Courtesy, but also held that the punitive damages claim with respect to Blair, Jr. should have been submitted to the jury. The Kentucky Supreme Court had the finally word, and reversed the COA by reinstating the jury verdict against Courtesy. On remand, the judgment against both was satisfied and the case proceeded on the resurrected punitives claim. The TC later dismissed Blair, Jr. from the action based on his bankruptcy discharge and then granted summary judgment to Courtesy since it held Patterson did not have sufficient evidence to recover punitives against Courtesy as the employer under KRS 411.184(3) or (2).
The COA began by rejecting Patterson's first argument that the TC had incorrectly held that he bore the burden of proving the existence of a material issue of fact contrary to the summary judgment stanard. Patterson had simply misinterpreted the TC's inartful but correct statement in its opinion that Patterson bore the ultimate burden of proving that he was entitled to punitives under the statute. Patterson secondly argued that a factual question existed as to whether Blair authorized, ratified or should have anticipated Blair, Jr.'s conduct. While Blair, Sr. knew of the dispute between Courtesy and Patterson and knew that Blair, Jr. had taken it upon himself to repossess the vehicle, the COA held that this evidence did not demonstrate that Blair, Sr. ever authorized Blair, Jr. to use the type of conduct employed in the repossession. The COA also rejected the argument that Courtesy ratified the conduct when it did not officially discipline or reprimand Blair, Jr. for the incident, instead pointing to Blair, Sr.'s disapproval of the conduct and his suggestion for Blair, Jr. to turn himself into the police. Courtesy's retention of the vehicle obtained in the repossession also did not amount to ratification of the means employed in the COA's opinion. Concerning anticipation, the COA rejected Patterson's argument that testimony from Blair, Jr.'s friends that he usually carried a handgun all the time, coupled with Blair, Sr.'s awareness of his son's prior repossessions, created a genuine issue of material fact since there was no evidence that Blair, Jr. had ever previously used any gun in an inapproriate manner during those repossessions. The COA therefore affirmed the TC's grant of summary judgment.
Note that the COA declined to review the TC's burden of proof imposed on Patterson that required him to prove not only that Courtesy authorized, ratified or should have anticipated Blair, Jr.'s conduct under KRS 411.184(3), but also that both Blair, Jr. AND Courtesy independently acted toward him with oppression, fraud or malice under 411.184(2). As section (3) is essentially a punitive damages claim against the employer under vicarious liability principles, it seems reasonable to require a claimant to first prove that the employee acted toward him with oppression, fraud or malice because the employer is liable only if it authorizes, ratifies or should have anticipated such conduct. However, the TC also essentially required Patterson that Courtesy itself had acted toward him with oppression, fraud or malice, which in most cases will prove to be a higher burden and is arguably inconsistent with the stated burden in 411.184(3).
Chad Kessinger
Schiller, Osbourn, Barnes & Maloney
Child resided primarily with Mom until she was removed in a dependency action. At the temporary removal hearing Dad agreed that it would be best that the child temporarily reside with a member of Mom’s family. Shortly thereafter Mom died. At what was supposed to be a pre-trial conference a social worker incorrectly informed the TC that Dad had agreed that permanent custody should be awarded to the temporary custodian (custodian). Dad was not represented by counsel, his custodial rights were not explained to him, and the TC did not question him about his wishes regarding custody. Approximately a year later dad filed a petition for custody. The TC held that the custodian was a de facto custodian, that she had equal standing with Dad, and that Dad had failed to meet the statutory requirements to modify custody. The trial court also held that because Dad did not object when the permanency order was entered he waived his custody.
CA held that while Dad was present when custody was awarded to
the custodian it was likely he did not understand what was occurring. The CA
opined that while a parent can waive his parental rights that waiver should not
occur by accident because a party does not understand the proceedings. Dad’s
silence at the pre-trial conference did not constitute a waiver of his parental
rights. Additionally, the CA held that since no evidence was taken at the
hearing on Dad’s petition for custody there could be no finding that the
custodian was a de facto custodian. Regarding the permanency order, the CA held
that a permanency order in a dependency action may qualify as a custody decree.
However, to be considered a valid custody decree it must be based on the
standards set forth in KRS 403.279(2). The TC took no evidence upon which it
could have found that the custody placement was in the child’s best interest
and therefore did not meet the elements of KRS 403.279(2). Because the order in
the dependency action was not a custody decree, as envisioned by KRS Chapter
403, it was not necessary that the requirements of KRS 403.340(2) be met in
order to modify custody.
Digested by Linda
Dixon Bullock, Diana L.
Skaggs + Associates
The COA reversed summary judgment in favor of the appellee finding that the deed was not void ab initio for failing to satisfy the statutory requirements of KRS 382.135.
James transferred his property by deed to his daughter and her
husband. Several years later he filed suit alleging the property transfer
was void ab initio since the deed does not cite any consideration and therefore is void or voidable pursuant to KRS 382.135 and common law principles. The referenced statute
requires parties to a deed to include within its body what is commonly referred to as a
consideration certificate. Circuit court granted James' motion holding that the deed in question did not
meet the requirements of KRS 382.135 and was so flawed on its face as to render it void ab
initio.
Although failure to conform to KRS. 382.135(1) makes a deed unrecordable, this flaw does not make the document void or legally insufficient so as to divest Lee of title to the
property and the deed in question substantially complies with the statute.
In general, recording a deed is ¡necessary only to secure the title against subsequent creditors and
purchasers; deeds are valid between the parties claiming under them, even though they may not be recordable instruments under our statutes.
The statute did not contravene the common law regarding the validity of any deed. As between the grantor and grantee, and third parties with notice, even a
complete failure to include the consideration certificate called for in KRS 382.135 will not affect the validity of a deed if that deed contains the fundamental elements necessary to a valid and enforceable deed. The deed will remain unrecordable, however, until it substantially complies with KRS 382.135.
The deed in question is a valid deed since it contains the fundamental elements necessary to a valid and enforceable deed, which are: (1) a grantor and grantee; (2) delivery and acceptance; (3) a divesting of title by grantor and a vesting of title in the grantee. Haynes v. Barker, 239 S.W.2d 996, 997 (Ky. 1951). If each of these elements is present, the deed's recordability in this case is irrelevant.
The parties would be wise to prepare a deed of correction, consistent with this opinion, indicating that the original grantees were Sandra, Lee and James.
Michael Stevens
STROHSCHEIN V. CRAGER (and Nadine Howard)This matter proceeded to a trial before the court on the issues of whether Nadine owned the property that is the subject of the complaint and the property boundary
between the subject property and the appellants' property. As to the issue of the boundary line between the properties, the appellants introduced a survey
(childers) of the property which showed the appellants property was actually 20.98 acres larger than the 30 acres described in the 1997
deed such that the appellants' property encompassed Crager's driveway and part of his yard and totally encompasses the property which Nadine claims.
Nadine and Crager both employed the same surveyor (Tackett)
who concluded that the appellants' tract was actually 34.24 acres who relied
upon interviews and testified that the 'rocky part¡' described in Nadine's deed and a prior 1994 deed was very distinctive and established the boundary between the properties.
The court held that the boundary line between Nadine's property and Crager's property was as set forth in the Tackett survey and as testified to by Crager and Nadine.
COA agreed with the trial court that the failure of the appellants and their predecessor in title to assert their alleged ownership to the property now in dispute during the partition action or to file exceptions to the master commissioner's sale, precludes them from asserting title against Nadine. It is a maxim of the law that
'he who is silent when he should have spoken, shall not be afterward heard to assert the claim on which, on the proper occasion, he failed to disclose.' Disney v. Creech, 298 Ky. 758, 762, 184 S.W.2d 80, 82 (1944).
The appellants' silence during the partition proceeding precludes them from asserting title superior to that claimed by Nadine.
The court has total discretion to choose between the conflicting opinions of the surveyors if the opinion relied upon is not based on erroneous assumptions or fails to take into account established factors. Croley v. Alsip, 602 S.W.2d 418, 419 (Ky. 1980).
Michael Stevens
This appeal arises from claim for asbestos exposure while employed as a railroad worker for CSX Transportation (and predecessors) in which GE designed and manufactured locomotives and provided component parts incorporated into the locomotives and railroad cars used by the railroad carriers. The appellants claimed these contained asbestos to which appellant Ballard was exposed, resulting in his contracting cancer.
The trial court granted summary judgment
for GE dismissing the claim on the basis that the common law tort claims
sounding in negligence and strict liability were preempted by the federal Locomotive Boiler Inspection Act, 49 U.S.C.A.
20701, et. seq. The overwhelming weight of authority is that such
claims against railroad component parts manufacturers are precluded, and,
agreeing with the majority view, the COA affirmed the circuit court's
award of summary judgment to the appellee.
Michael Stevens
NOT PUBLISHED (COA)
RAMEY
V. RAMEY
FAMILY LAW: Setting aside property settlement agreement (fraud or
incapacity)
2005-CA-001297
NOT TO BE PUBLISHED: 76
DATE RENDERED: 11/30/2007
COYLE
V. COM.
CRIMINAL: RCr 11.42
2005-CA-001812
NOT TO BE PUBLISHED: 81
DATE RENDERED: 11/30/2007
WRIGHT
V. PNEUMO ABEX, LLC
TORTS: Locomotive Boiler Inspection Act preempts common law tort claims
against railroad component manufactures
2006-CA-000081
NOT TO BE PUBLISHED: 127
DATE RENDERED: 11/30/2007
PRICE
V. COM.
CRIMINAL: Alibi; ineffective assistance of counsel not for failure
to object to admissible evidence
2006-CA-000652
NOT TO BE PUBLISHED: 91
DATE RENDERED: 11/30/2007
MATTHEWS
V. COM.
EMPLOYMENT: Disability retirement benefits with gov't
2006-CA-001169
NOT TO BE PUBLISHED: 153
DATE RENDERED: 11/30/2007
CRAWFORD
V. LEXINGTON-FAYETTE URBAN COUNTY GOV'T
EMPLOYMENT: Denied claim of discimination on multiple issues
2006-CA-001237
NOT TO BE PUBLISHED: 157
DATE RENDERED: 11/30/2007
AKERS
V. COM.
CRIMINAL: Prior inconsistent statements; 11.42
2006-CA-001316
NOT TO BE PUBLISHED: 84
DATE RENDERED: 11/30/2007
MCCLAIN
V. COM.
CRIMINAL: Traffick safety checkpoint constutitional
2006-CA-002016
NOT TO BE PUBLISHED: 97
DATE RENDERED: 11/30/2007
BUCKLEY
V. THE KROGER CO.
EMPLOYMENT: Amending petition for discrimination and relation back
2006-CA-002244
NOT TO BE PUBLISHED: 92
DATE RENDERED: 11/30/2007
CLARK
V. COM.
CRIMINAL: CR 60.02
2006-CA-002567
NOT TO BE PUBLISHED: 87
DATE RENDERED: 11/30/2007
HIBBENS
V. COM.
CRIMINAL: Property forfeitures, burden
2006-CA-002601
NOT TO BE PUBLISHED: 132
DATE RENDERED: 11/30/2007
T.E.B.,
JR. V. COM.
FAMILY LAW: Termination of parental rights; standard of proof
2007-CA-000031
NOT TO BE PUBLISHED: 79
DATE RENDERED: 11/30/2007
FAIRCHILD
V. FAIRCHILD
FAMILY LAW: Child visitation and burden of proving visitation would
harm child on party seeking to deny visitation
2007-CA-000760
NOT TO BE PUBLISHED: 87
DATE RENDERED: 11/30/2007
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