DEC. 20, 2007 SUPREME COURT OF KENTUCKY DECISIONS (Vol. 2007:61)
PUBLISHED
(SCOKY)
The Supreme Court vacates and remands the dismissal of an appeal from an order overturning a two-year old default judgment.
Appellant filed suit on credit card debt; served appellee/debtor; noticed debtor on motion for default judgment; received DJ after hearing; and filed a judgment lien and sent a copy to debtor. Debtor never responded to any notice. Some two years later, appellant successfully garnished $11,000 from debtor. Debtor challenged under CR 60.02 alleging that, since she had completed inpatient alcohol treatment shortly before receiving notice of suit, she was incapable of managing her affairs. She argued this amounted to a "reason of an extraordinary nature justifying" setting aside the DJ. Appellant argued this was "excusable neglect," at best, which carries a one-year statute of limitations. Appellant appealed; CA dismissed, citing the rule that an order setting aside a judgment and reopening a case for trial is not final and therefore not appealable.
The Supreme Court holds that it is appropriate to join the federal courts to the extent of recognizing a narrow exception to the rule. Permitting an immediate appeal on these narrow facts balances the parties' competing interests.
SUMMARY:
The Supreme Court vacates and remands the dismissal of an appeal from an order overturning a two-year old default judgment. In this narrow circumstance, Kentucky will recognize a jurisdictional exception to the rule forbidding an appeal from an order vacating a judgment and reopening a case.
John
Hamlet
Sitlinger, McGlincy,
Theiler & Karem
The issue in this case arose in the context of the compensation phase of an eminent domain proceeding. When MSD filed its petition for condemnation therein, it neither requested a jury trial nor paid a fee for same. In the course of the condemnation proceedings, the trial court issued an interlocutory judgment condemning certain permanent and temporary easements across Bischof's property on January 30, 2003. On August 7, 2003, Bischof filed a written request for jury trial. The trial court denied the motio because the request was not timely under CR 38.0s, and the trial court concluded the basis for the late request was not excusable neglect. The trial court conducted a bench trial on October 25, 2004, eventually entering an award for $5,522 in compensation to Bischof. He appealed the trial court's denial of his motion for jury trial, and the COA held that in eminent domain proceedings, Section 242 of the KY Constitution and KRS 416.620(1) require an affirmative waiver of the mandate for jury trial. It also noted that failure to make a demand under CR 38.02 did not amount to an affirmative waiver. It further relied on language from the case of Equitable Life Assurance Society of the United States v. Taylor, 637 S.W.2d 663, 665 (Ky. App., 1982). The COA reversed and remanded for a jury trial on the issue of compensation.
The SC noted there is no dispute that Bischof had a right to a jury trial on the amount of compensation owed him, but the issue was whether he had to exercise that right by demanding a jury trial as requried by CR 38.02 or waive that right affirmatively; it stated that the issue arises because KRS 416.550 to 416.670, the substantive provisiosn of the Eminent Domain Act of KY, do not specify the procedure by which a party is to exercise his rights to a jury trial as eminent domain statutes in other states do. The answer, it held, lies in KRS 416.650, which reads: "All proceedings under KRS 416.550 to 416.670 shall be governed by the provisiosn of the Rules of Civil Procedure except where the provisions of KRS 416.550 to 416.670 specifically or by necessary implication provide otherwise." The SC held that because there is no provision that specifically or by necessary implication pertains to a demand of jury trial, the provisions of CR 38 govern, and CR 38.02 required Bischof to obtain a jury trial by serving a timely demand. If he did not do so, then under CR 38.04, he waived his right to jury trial. It noted that he did not file his demand for jury trial until August 7, 2003, almost three months past the last pleading directed to the issue of compensation and eleven months after he filed his first pleading in the case; his failure to serve a timely demand under CR 38.02 thus constitutes a waiver of his right via CR 38.04.
The SC addressed Bischof's argument that enforcing 38.04 deprived him of his right to jury trial under Section 242 of the KY Constitution or KRS 416.620; it noted that CR 38 merely specifies the procedure for obtaining a jury trial when the applicable statutes do not and touted the language in Brown v. Commonwealth, 551 S.W.2d 557, 559 (Ky., 1977), which likens the Civil Rules to "lights and buoys" which "mark the channels of safe passage and assure an expeditious voyage to the right destination" by providing procedural avenues for the enforcement and protection of substantive rights. It also addressed the language in Taylor, and stated that to the extent that language elevated the right to jury trial in eminent domain proceedings above the right to such guaranteed in Section 7 of the KY Constitution, it was overruled. On a side note, it held that Bischof, who had proceeded pro se throughout the case, did not preserve certain evidentiary arguments by way of a cross-motion for discretionary review, and it therefore declined to consider them.
Justice Cunningham dissented, noting that Bischof had asked for a jury trial in August, 2003, some fifteen months before the bench trial, and stated that in such a case, he did not believe the failure to comply with CR 38.02 was an affirmative waiver.
By Cherry Guarnieri
The Supreme Court reversed the COA's denial of a petition for a writ of mandaus to disqualify a defendant's expert witness (Dr. Bonnarens) in a medical negligence action finding that the Dr. Bonnarens had been contacted by the plaintiff's attorney and the attorney-client privilege attached to those communications.
The "Sowders" had filed a medical malpractice action on behalf of their son alleging the doctor failed to properly diagnose and treat their son's septic hip.
Attorney Lee Turner represented Appellants (Sowders) in the case and had prior to suit obtained and reviewed medical records, performed legal research, consulted with experts, and prepared work product--including a memorandum summarizing the records, his research, and his mental impressions. Attorney Paul Casi was working with Turner and claimed he contacted Dr. Bonnarena to review "confidential attorney work product information, including information concerning the mental impressions and conclusions of Attorney Turner including his work product memoranda." The defense later retained Bonnarens as their expert.
With regard to the denial of the write, the issue whether Dr. Bonnarens should be allowed to testify at trial--falls within the second class of writ cases . The Court of Appeals denied the writ, finding that Appellants failed to satisfy their burden of proof that Dr. Bonnarens received work product. Upon review of the matter, SC found Court of Appeals abused its discretion in refusing to compel the circuit court to disqualify Dr. Bonnarens. Accordingly, SC reversed the part of the Court of Appeals' denial of the writ of mandamus concerning the disqualification of Dr. Bonnarens.
The attorney-client privilege applies to a confidential communication "made to facilitate the client in his/her legal dilemma and made between two of the four parties listed in [KRE 503]: the client, the client's representatives, the lawyer, or the lawyer's representatives." 'Where the privilege applies its breach undermines confidence in the judicial system and harms the administration of justice." In this matter, the attorney-client privilege attached to any confidential communications between Casi and Dr. Bonnarens. There is evidence that Casi, plaintiffs' prospective co-counsel, provided Dr. Bonnarens, a consulting medical expert, with work product. In his affidavit, Casi stated that he asked Dr. Bonnarens to review "confidential attorney work product information, including information concerning the mental impressions and conclusions of Attorney Turner including his work product memoranda." Thus, there is great risk that Dr. Bonnarens' testimony could violate the attorney-client privilege. In addition, any work product Casi provided to Dr. Bonnarens is protected from discovery. See CR 26 .02(4)(b) . Although Dr. Bonnarens insists he was not given work product, the circumstances suggest otherwise.
It is evident, that petitioners are without an adequate remedy by appeal or otherwise. Once the information is furnished it cannot be recalled. It may or may not be used at the trial, and the injury suffered by petitioners will be complete upon compliance with the order and such injury could not thereafter be rectified in subsequent proceedings in the case . Petitioners have no other adequate remedy.
Moreover, under the unduly narrow interpretation of the work product doctrine adopted by the Court of Appeals, attorneys will be reluctant to disclose confidential information to non-testifying consulting experts, because of the risk that they might testify on privileged matters for the opposing party. This will surely result in a chilling effect on the use of pre-litigation consultative evaluations.
The SC declined to employ a rule of inclusion / exclusion for expert witnesses in this instance that requires a finding of fact (which was never made in this case) as to exactly what the expert reviewed for the opposing party. A simple finding that the expert did review the case for the opposing party and gave an opinion is sufficient. No one disputes that this occurred here . Litigation experts understand this rule and it is not difficult to comply with. This resolution protects the spirit of Newsome and facilitates continued pre-litigation consultation. Appellants are thus without an adequate remedy by appeal or otherwise and allowing Dr. Bonnarens to testify would result in a substantial miscarriage of justice. Additionally, this result removes any possibility of circumstances occurring at trial where Dr. Bonnarens might inadvertently blurt out, "I reviewed the case for the plaintiffs before it was filed and told them there was no claim."
Michael Stevens
SC found Parker to be entitled to a new trial following conviction for murder because the trial court erred in allowing the playing of a rap CD in opening statement, with commentary by the Commonwealth, when the CD could not later be properly admitted, and the error could not be cured by admonition. Further, TC committed reversible error by denying Parker an instruction on second-degree manslaughter.
Before trial, Louisville police officers came into possession of a rap CD allegedly made by Parker, his brother Kenneth, and "Two Tom" Taylor. The three charged an officer five dollars for the CD. The trial court allowed the CD to be played during the Commonwealth's opening statement over objection but warned the Commonwealth that if the CD was not admitted during trial that Parker would be entitled to a mistrial. The Commonwealth Attorney asserted a "good faith belief" that statements on the CD would constitute "adoptive admissions" by Parker, and during opening, commented that the Crips rapped about a violent act they committed on July 31, 2000 . After playing the CD, the Commonwealth commented further that the lyrics said "shot the bitch at close range" and "remember the 31St ." Later during the trial when the Commonwealth offered the CD into evidence, the trial court excluded it because it could not be properly authenticated or construed as adoptive admissions. Parker moved for a mistrial, and the TC denied the motion despite its previous statement.
In playing the CD during opening statement and in telling the jury what it purported to say, the Commonwealth placed unauthenticated evidence before the jury. As the trial developed it became apparent that the Commonwealth could not establish the meaning of the words, or even what they were, through witnesses, nor could the Commonwealth prove who made the CD, or whether Parker was actually connected to it. In short, the Commonwealth was able to tell the jury that the CD referred to Parker having committed the murder of which he was accused, and that he was bragging about it through the CD recording (which was clearly prejudicial) even though the CD could not be sufficiently authenticated to be admitted into evidence. Obviously Parker had no ability to cross-examine regarding this information or to otherwise properly defend against it. By using unauthenticated materials in opening statement the Commonwealth unfairly exposed the jury to inflammatory information of such a nature that no admonition could reasonably be believed to cure it.
TC usurped the role of the jury in determining that the evidence did not support a manslaughter second degree instruction. Even though the jury did find a wanton state of mind under the instructions given, they were not given the opportunity to consider a lesser state of wanton culpability. It is possible the jury would have found wanton murder anyway; however, it is also possible for a finding of lesser wanton behavior, even though unlikely.
SUMMARY:
SC found Parker to be entitled to a new trial following conviction for murder because the trial court erred in allowing the playing of a rap CD in opening statement, with commentary by the Commonwealth, when the CD could not later be properly admitted, and the error could not be cured by admonition.
Scott C. Byrd
Olgin and Byrd
Terry's convictions for criminal mischief in the first degree are vacated and remanded. Terry's convictions for desecration of venerated objects in the first degree, violating a grave, theft by unlawful taking over $300, and abuse of a corpse are affirmed. Terry was convicted of criminal mischief charges of which he had never been formally advised, and to which he had never entered a formal plea of not guilty. A criminal conviction may not be had on a new charge in a superseding indictment to which a defendant has not entered a formal plea, even if the new charges are based on the same essential underlying facts as the original indictment. So Terry's criminal mischief convictions must be vacated. Under the particular facts of this case, the lack of a rearraignment on the desecration of venerated objects, violating a grave, theft by unlawful taking, and abuse of a corpse charges does not require reversal since Terry has not shown specific prejudice stemming from the lack of rearraignment on those charges.
Here, the grand jury returned a superseding indictment issued against Terry about three weeks before his scheduled jury trial. That superseding indictment added two criminal mischief charges, and it also changed Terry's role in the other originally charged offenses from being complicit in the commission of those offenses to being the principal actor in the commission of the offenses. Under Kentucky law, "an arraignment and taking of a plea are necessary to a valid conviction." Yet, the record does not reflect that Terry was arraigned on the superseding indictment . And Terry clearly apprised the trial court of the fact that he had not been arraigned, which properly preserved this issue for appellate review.
Because theft by unlawful taking over $300 and first-degree desecration of venerated objects contain separate elements, Terry's conviction for violating both of those statutes does not violate double jeopardy.
Digested by Scott C. Byrd
Olgin and Byrd
Defendant's convictions for criminal mischief vacated because he was never arraigned on these charges in the superseding indictment.
SC reversed Shane's convictions and 35 year sentence in Jefferson Circuit Court, specifically overruling Morgan v. Commonwealth, 189 S.W.3d 99 (Ky. 2006), which held the trial court error in failing to strike a juror for cause was harmless. Here, Juror 138's responses in their entirety indicated a probability that he could not enter the trial giving both sides a level playing field. His statement that he was "absolutely" pro-police and that he did not believe an officer would lie under oath clearly indicated that a defendant would have little or no chance of challenging an officer's testimony in this juror's mind.
It is a fundamental tenet that a person charged with a crime is entitled to a fair trial. RCr 9.36(1) establishes the standard a trial judge is required to apply in voir dire: "When there is reasonable ground to believe that a prospective juror cannot render a fair and impartial verdict on the evidence, he shall be excused as not qualified ." The language to the trial court is mandatory. RCr 9.40 gives a defendant eight peremptory challenges plus one if alternates are seated. The correct inquiry is not whether using a peremptory strike for a juror who should have been excused for cause had a reasonable probability of affecting the verdict (harmless error), but whether the trial court who abused its discretion by not striking that juror for reasonable cause deprived the defendant of a substantial right. Harmless error analysis is simply not appropriate where a substantial right is involved, and is indeed logically best suited to the effect of evidence on a verdict, though some procedural errors may also be reviewed in this light. Here, the defendant did not get the trial he was entitled to get. For these reasons, the holding in Morgan must be overturned.
Digested by Scott C.
Byrd
Olgin and Byrd
Overruling Morgan v. Commonwealth, 189 S.W.3d 99 (Ky. 2006), SC held Shane was entitled to a new trial because the trial court erred in failing to strike a juror for cause, forcing Defendant to utilize a peremptory strike.
SC affirmed Fredline's conviction and 25 year sentence for murder. TC did not abuse its discretion in denying Defendant's motion for a continuance because the Defendant suffered no identifiable prejudice by this denial. TC did not err in prohibiting expert witness's testimony that Defendant was suffering from extreme emotional disturbance when he committed the murder. The evidence in this case did not support a voluntary intoxication instruction. SC found a formal competency hearing was not required in this case and KRS 504.100(3) was satisfied.
Digested by Scott C.
Byrd
Olgin and Byrd
In affirming Defendant's conviction for murder, SC rejected numerous claims of error.
SC affirmed Chatman's convictions for drug trafficking and PFO 1st. TC did not err when it struck two African-American jurors for cause. Further, there were no Batson violations.
Digested by Scott C.
Byrd
Olgin and Byrd
In affirming Chatman's convictions for drug trafficking and PFO 1st, SC found voir dire was conducted properly.
Michelle
Eisenmenger Mapes
Diana L. Skaggs +
Associates
This was an action to quiet title to a 155 acre tract of coal (the disputed tract) between the Boggs Heirs and the Hoskins Heirs and the entitlement to mining royalties. Summary judgment was granted in favor of the Boggs Heirs upon trial court's determination that the deed was not ambiguous. The SC determined that the 1981 deed to the Boggs Heirs' predecessor in title (Silas Boggs) was not ambiguous and the trial court therefore erred in not considering extrinsic evidence offered by the Hoskins Heirs to show the parties intent as to what was intended to be conveyed by the parties.
Having determined that the deed to Silos Boggs is in fact "ambiguous," thus necessitating consideration by the trial court of any admissible extrinsic evidence relevant to the intention of the parties, and that otherwise, material issues of fact existed at the time of summary judgment, the SC reversed the opinion of the Court of Appeals and vacated the judgment of the trial court, but only as to the issues of title between the Hoskins Heirs and the Boggs Heirs, and remanded the matter back to the trial court for further proceedings consistent with this opinion.
At the heart of this title dispute were "stake patents" and "conditional line agreements." "Stake patents," although valid in Kentucky, have nevertheless engendered a multitude of litigation of their boundaries as to the location of their boundaries, as well as, overlaps with other adjacent patents. "Stake patents," being as imprecise as they were, led to the use of "conditional line agreements" between adjoining neighbors, so as to avoid the inconvenience and expense of boundary line litigation . "A conditional line in eastern Kentucky is a line made by agreement of the parties, generally without the aid of a surveyor. "Conditional line agreements" were often unrecorded, yet marked and known on the ground by their reators--and just sometimes their heirs.
In determining the intention of the parties, courts look at the whole deed, along with the circumstances surrounding its execution, and courts may also consider the acts of the parties following the conveyance. Then, if the ambiguity is not resolved by extrinsic evidence of the parties' intentions, the rule is well settled that the deed will be construed most strongly against the grantor and in favor of the grantee if it admits of two constructions. The construction of a deed is a matter of law, and absent an ambiguity, the intention of the parties is to be gathered from the four corners of the instrument.for what was said."
There also being genuine issues of material fact existing at the time, the entry of summary judgment was therefore in error.
Michael Stevens
ATTORNEYS
Refer to minutes
NOT PUBLISHED (SCOKY)
MCBEATH, JR. V. COM.CRAWFORD V. UNIVERSITY OF LOUISVILLE
WORKERS COMPENSATION
2005-SC-000778-WC.pdf
NOT PUBLISHED: 581
DATE RENDERED: 12/20/2007
FERGUSON V. COM
CRIMINAL
2006-SC-000156-MR.pdf
NOT PUBLISHED: 1363
DATE RENDERED: 12/20/2007
LEMON V. COM.
CRIMINAL
2006-SC-000636-MR.pdf
NOT PUBLISHED: 688
DATE RENDERED: 12/20/2007
RICHARDS V. COM.
CRIMINAL
2006-SC-000733-MR.pdf
NOT PUBLISHED: 619
DATE RENDERED: 12/20/2007
KORULUK V. UNITED PARCEL SERVICE
WORKERS COMPENSATION
2006-SC-000946-WC.pdf
NOT PUBLISHED: 522
DATE RENDERED: 12/20/2007
POINTS V. COM.
CRIMINAL
2007-SC-000310-MR.pdf
NOT PUBLISHED: 548
DATE RENDERED: 12/20/2007
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