JAN. 18, 2008 - KENTUCKY COURT OF APPEALS DECISIONS (2008:03)
UPDATE: Effective 2008, the weekly lawwire compilation of appellate decisions will only be digesting the published SCOKY & COAKY decisions. The non-published decisions will no longer be listed by name, keyword, and link to full text. You can find the non-published decisions in the minutes, and the names and lower courts should give you an "idea" of the general nature of each case. A list of the nonpublished SCOKY decisions will continue to be provided as before with names, case no., topic, and link to full text.
PUBLISHED (COA).
EDWARDS V. VAN ROSTYNECA affirmed in part and reversed in part Jefferson Circuit Court's dismissal of inmate's civil action “against everyone who is involved, even remotely, in the prosecution of a pending indictment against him.” Because the Jefferson Circuit Court only applied Kentucky Revised Statute (KRS) 453.190 to Edwards' application to proceed in forma pauperis, without consideration of KRS 454.410, CA remanded to the circuit court to proceed under that statute. The dismissal is affirmed but the case is remanded to the Jefferson Circuit Court for the sole purpose of determining under KRS 454.410 the proper fees and costs to be paid by Edwards, as well as the time frame in which he will be allowed to pay those fees and costs.
Scott C. Byrd
Olgin and Byrd
On discretionary review, CA reversed the District Court order granting of the Commonwealth of Kentucky and CMI, Inc.'s, (CMI) motion to quash a subpoena issued by House to CMI requiring CMI to produce the computer source code of its breathalyzer instrument, the Intoxilyzer 5000.
Because a flaw in the computer source code of the Intoxilyzer 5000 would be consequential to the accuracy of the reading intended to be relied upon by the Commonwealth, such evidence is relevant and admissible. Accordingly, requesting the computer code to test the verity of the readings produced by the instrument is not unreasonable. A subpoena may be quashed only upon a showing that compliance therewith would be unreasonable or oppressive. We do not believe the Commonwealth and CMI have made this showing. The burden of providing the information is minimal and the expense de minimis. Finally, a protective order should obviate any concern CMI may have with respect to protection of its source code.
Scott C. Byrd
Olgin and Byrd
Ex-Wife appealed from TC’s order adopting the Separation and Property Settlement Agreement between Ex-Wife and Ex-Husband. The parties had reached a property settlement agreement at mediation, memorialized by the mediator's handwritten notes, which was signed by the parties, their respective attorneys, and the mediator. Thereafter, Ex-Husband's attorney tendered a formal settlement agreement incorporating the terms of settlement with the mediator’s handwritten notes attached. After Ex-Wife contested Ex-Husband's version of the agreement, DRC concluded that the agreement tendered by Ex-Husband reflected the settlement reached by the parties during mediation and recommended that TC accept the agreement, to which Ex-Wife filed exceptions. TC accepted DRC's recommendations and this appeal followed.
Because she did not make the argument to TC, CA rejected Ex-Wife’s argument that Ex-Husband's tendered settlement agreement could not be proven as a true recitation of the agreed-upon terms because the handwritten mediation notes were ambiguous and did not constitute a “written separation agreement” as required by Kentucky Revised Statutes 403.180(1). In fact, she had argued to TC that the handwritten notes should be accepted as the parties’ agreement. CA declared that Ex-Wife could not “feed one can of worms to the trial judge and another to the appellate court.” CA also rejected Ex-Wife's second argument, that TC’s review was inconclusive because the parties failed to submit financial disclosure statements required by the 53rd Judicial Circuit's local rules, because this argument was also raised for the first time on appeal. TC affirmed.
Michelle
Eisenmenger Mapes
Diana L. Skaggs +
Associates
In this open-records case, representatives from various agencies in Governor Fletcher's Administration appeal the decision of the Franklin Circuit Court regarding disclosure of attorney billing statements prepared by non-government lawyers retained by the Fletcher Administration in connection with the Attorney General's recent investigation of the Administration's hiring practices. For the reasons set forth herein, we affirm the decision of the circuit court. In this case, Senator Ernesto Scorsone of Lexington issued open-records requests to various agencies within the Fletcher Administration seeking all attorney billing statements from non-government lawyers
retained by the Administration in connection with the Attorney General's recent investigation of the Fletcher Administration's hiring practices. Senator Scorsone's request sought “the date of each service performed, a description of the service, the identity of the attorney performing such service, the hourly rate charged for that attorney, the time spent by that attorney on that service, any reimbursable expenses, total amounts incurred and total amounts due for their services.”
The Fletcher Administration partially complied with Senator Scorsone's request by tendering its attorney billing statements relating to the investigation, but redacting from them the descriptions of the particular services rendered on the grounds that they are protected by attorney-client privilege. Dissatisfied with the Administration's redactions, Senator Scorsone appealed to the Attorney General. The Attorney General rendered an open records decision ruling that the Fletcher Administration's blanket redaction of descriptions of particular services rendered from the billing statements was improper. The Attorney General ruled that redaction is only proper where a particular description of a service rendered would disclose privileged matters.
In turn, the Fletcher Administration unsuccessfully appealed to Franklin circuit court, which generally agreed with the Attorney General's opinion. The circuit court, however, additionally ruled that, when the Administration was in doubt whether a particular description contained protected material, the description in question should be submitted to the circuit court for an in camera review.
Finally, the circuit court also awarded attorney fees to Senator Scorsone on the ground that the Fletcher Administration's redactions had been “willful.”
The primary issue presented here is to what extent, if any, must descriptions of particular legal services rendered to the Fletcher Administration by non-government counsel be disclosed as open records
The attorney-client privilege does not apply to all communications between an attorney and a client. Indeed, to fall under the attorney-client privilege, a communications must be confidential, relate to the rendition of legal services, and not fall under certain exceptions. See KRE 503. In the case at bar, the burden of proof of demonstrating that a requested public record falls within the attorney-client privilege falls upon the Administration. See KRS 61.882(3). And, like the Attorney General and the circuit court before us, we cannot imagine that each and every description of services rendered contained in billing statements prepared by non-government lawyers during the Attorney General's investigation falls under the attorney-client privilege
Thus, the COA found the Attorney General and the circuit court are both correct in rejecting the Administration's blanket redaction of all descriptive portions of the disclosed billing records without particularized demonstration that each description is privileged. We further find that the circuit court's decision to allow the Administration to tender those portions of the billing records it believes to be privileged for in camera review to be in accordance with the Open Records Act and an excellent device for balancing the Administration's interest in the confidentiality of privileged materials and the public interest in the disclosure of nonconfidential government records. Therefore, we affirm the circuit court's decision regarding disclosure. Although the COA did affirm the circuit court's disclosure ruling, it reversed its award of attorney's fees to appellee.
Because the attorney-client privilege was favored by the circuit court to be a valid exception to at least a portion of the billings records, and because the circuit court's in camera review solution appears to be novel and therefore not readily available to appellants at the time of appellee's record request, the circuit court erred in finding that appellant willfully withheld records in violation of KRS 61.870 to 61.884. Accordingly, we hold each party should bear its own costs of litigation in this matter.
Michael Stevens
Michael Stevens
CA vacates and remands the TC entry of SJ dismissing this malicious prosecution claim. (Jefferson Cir. Ct., Hon. Lisabeth Hughes Abramson, judge, presiding).
Craycroft lived in a house formerly owned by Pippin and his ex-wife with Pippin's ex-wife. The home went into foreclosure and Pippin bought it back. Upon taking possession, Pippin discovered extensive, and apparently malicious, damage estimated at $85,000. A neighbor told Pippin that he witnessed Craycroft intentionally damaging the property after Pippin's foreclosure purchase, but before Pippin was deeded the property. Pippin executed a criminal complaint against Craycroft. The county attorney recommended that Craycroft be charged with theft by unlawful taking over $300.00 and criminal mischief in the first degree. The court determined that probable cause existed; the case was presented to the grand jury; and Craycroft was indicted for first-degree criminal mischief. The circuit court ultimately dismissed the indictment reasoning that Pippin had not acquired title when the damage was inflicted; Pippin was not the owner at the time of the crime.
Craycroft sued Pippin for malicious prosecution; Pippin moved for summary judgment, arguing that, since the district court found probable cause, the malicious prosecution claim must fail. The circuit court agreed.
On appeal, the CA holds that Craycroft must prove Pippin was without probable cause; the circuit court found, as a matter of law, that probable cause existed based on the district court finding. But, because the facts in this case were undisputed, the question of probable cause is a question of law for the court. The circuit court erred in that the prior finding of probable cause at a preliminary district court hearing merely raises a rebuttable presumption that probable cause exists in the defense of a malicious prosecution claim. The circuit court erroneously concluded that the district court finding was conclusive.
John E. Hamlet
Sitlinger, McGlincy,
Theiler & Karem
NOT PUBLISHED (COA)
JAROSEZEWSKI V. FLEGELEE
V. E.I. DUPONT DE NEMOUS
WORKERS COMPENSATION: Exclusive remedy and causing death
2006-CA-002566
NOT PUBLISHED: 124 kb
DATE RENDERED: 01/18/2008
CONNOR
V. PATTON
CIVIL: RES JUDICATA, SPLITTING A CAUSE OF ACTION
2007-CA-000575
NOT PUBLISHED: AFFIRMING
DATE RENDERED: 01/18/2008
COBB
V. COBB
CIVIL PROCEDURE: SUMMARY JUDGMENT
APPEALS: PRESERVING ISSUES
2006-CA-002125
NOT PUBLISHED: AFFIRMING
DATE RENDERED: 01/18/2008
WALTERS
V. VALSPAR
TORTS: PRODUCTS LIABILITY AND COMPLIANCE WITH DIRECTIONS
2006-CA-002642
NOT PUBLISHED: 109 kb
DATE RENDERED: 01/18/2008
MOSBY V. COM.
2006-CA-000620
NOT PUBLISHED: 93 kb
DATE RENDERED: 01/18/2008
MOORE V. COM.
2006-CA-001469
NOT PUBLISHED: 83 kb
DATE RENDERED: 01/18/2008
DAY V. COM
2006-CA-001954
NOT PUBLISHED: 117 kb
DATE RENDERED: 01/18/2008
CURRY V. GAINES
2006-CA-002588
NOT PUBLISHED: 97 kb
DATE RENDERED: 01/18/2008
MULLINS V. LUTTRELL
2007-CA-000096
NOT PUBLISHED: 105 kb
DATE RENDERED: 01/18/2008
PRICE V. COM
2007-CA-000205
NOT PUBLISHED: 93 kb
DATE RENDERED: 01/18/2008
MEADOWS V . MEADOWS
2007-CA-000543
NOT PUBLISHED: 101 kb
DATE RENDERED: 01/18/2008
CHAMBERLYN V. HISAY MARKETING COLLECTIBLES
WCOMP
2007-CA-000790
NOT PUBLISHED: 88 kb
DATE RENDERED: 01/18/2008
MACKINNON V. RICKETTS
2007-CA-001109
NOT PUBLISHED: 87 kb
DATE RENDERED: 01/18/2008
GREYHOUND LINES V. PIERCE
WCOMP
2007-CA-001790
NOT PUBLISHED: 100 kb
DATE RENDERED: 01/18/2008
ROBERSON V. NACCO MATERIALS HANDLING GROUP
WCOMP
2007-CA-001898
NOT PUBLISHED: 101 kb
DATE RENDERED: 01/18/2008
MINUTES from AOC for this week saved at our site and click here for the AOC's Official Minutes [which is provided for backup purposes] contain all decisions rendered with links to the full text of the nonpublished cases.
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