JAN. 25, 2008 - KENTUCKY COURT OF APPEALS DECISIONS (2008:05)
PUBLISHED (COA).
JEWELL V. CITY OF BARDSTOWN, KYThe City of Bardstown (the “City”) began annexation proceedings on some unincorporated property. Many residents in the area of this property opposed annexation and filed a petition in opposition to annexation, requesting a public referendum. The Mayor of Bardstown disqualified those persons who signed the petition and whose property was subject to a Consent to Annexation Agreement. This agreement was entered into by the developers of the property in exchange for the City’s agreement to provide water and sewer services to the neighborhood, and ran with the land. Because of the disqualification, there were not enough signatories for a referendum. The annexation was completed. The residents filed suit challenging the mayor’s actions, but the circuit court affirmed the annexation.
On appeal, the court acknowledged that there are no Kentucky cases discussing whether a restrictive covenant consenting to annexation that runs with the land can estop land owners from signing a petition in opposition to annexation. However, the court looked at cases from other jurisdictions, all of which held that the landowners were estopped from revoking their consent to annexation by purchasing land subject to annexation-consent covenants, and believed that they were consistent with Kentucky’s annexation statutes. The court reasoned that the landowners gave consent to annexation in return for the valuable consideration from the City of the provision of city water and sewer services, and should be estopped from receiving the benefits of the bargain without the obligations. It therefore affirmed the circuit court’s ruling.
Samuel Hinkle
CA affirmed TC's order forfeiting money seized from cockfighting bust. Because the 27 appellants failed to establish that they were innocent owners of the $171,000.00, the trial court properly ordered the forfeiture of the funds to the state. KRS 500.090(2) authorizes the forfeiture of money which has been obtained or conferred in violation of any criminal statute. However, KRS 500.090(4) directs a trial court to “remit the forfeiture of property when the lawful claimant: (a) Asserts his . . . claim before disposition of the property pursuant to this section; (b) Establishes his . . . legal interest in the property; and (c) Establishes that the unlawful use of the property was without his . . . knowledge and consent.”
Note: This editor was stunned to learn that cockfighting events attracting over 500 spectators and $425,000 in wagers take place in Kentucky. Michael Vick would be proud.
Digested by Scott C. Byrd
Olgin and Byrd
David Lake appeals from an order of the Knox Circuit Court denying his request for RCr 11.42 relief after an evidentiary hearing. Lake raises issues of ineffective assistance of counsel and witness perjury and argues defense counsel improperly waived the hearing to transfer the case from juvenile court to circuit court that is mandated by Kentucky Revised Statute (KRS) 640.010(2).
In the case at hand, there was absolutely no evidence of a valid waiver of the statutory requirements of KRS 640.010(2). Lake neither signed any document purporting to waive his right to a transfer hearing, nor did the juvenile court conduct such a hearing.
Rather, the juvenile court accepted defense counsel's stipulation of his client's appropriateness for transfer with very little questioning, and none of it directed at Lake.
Any juvenile whom the Commonwealth seeks to prosecute as a youthful offender is entitled to a hearing in the juvenile court to decide whether the circuit court shall obtain jurisdiction to try the juvenile as an adult.
Michael Stevens
Husband appealed an order denying his challenge to a garnishment served by his former Wife on several insurance providers who owed money to Husband’s medical practice. Husband argued that the accounts receivable were monies owed for professional services he performed. Therefore, he asserted the funds constituted wages meaning, pursuant to KRS 427.010(2)(a), 75% of those funds were exempt from garnishment.
CA opined that his argument was more appropriately based on
KRS 427.005, which defines earnings. The CA held that accounts receivable that
are owed due to personal services and labor of the debtor do constitute wages
and are 75% exempt from garnishment. However, the CA further reasoned that the
TC was correct in its holding that the funds due Husband were not only for his
services but were also due for the services of his staff. Further, it was not
the TC’s function, as Husband had asserted, to develop a formula for
segregating the funds owed to Husband for his services from those owed due to
the efforts of his staff. Instead, the burden of proof was on Husband to prove
what portion of the accounts receivable were owed solely due to his personal
services. Husband failed to meet this burden. Therefore, the TC correctly
denied his motion challenging the garnishment.
Digested by Linda
Dixon Bullock, Diana
L. Skaggs + Associates
NOT PUBLISHED (COA)
BROWN V. SOUTHARDNCO
PORTFOLIO MANAGEMENT INC. V. RICE
ARBITRATION: CONFIRMATION OF AWARD
2007-CA-000400
NOT TO BE PUBLISHED: 101
DATE RENDERED: 1/25/2008
VELTON
V. WELCH
FAMILY LAW: INTEREST AWARD FOR COLLECTION OF MARITAL ESTATE JUDGMENT
COLLECTION
2003-CA-001502
NOT TO BE PUBLISHED: 132
DATE RENDERED: 1/25/2008
RATLIFF
V. PEABODY COAL
WORKERS COMP
2007-CA-001163
NOT TO BE PUBLISHED: 77
DATE RENDERED: 1/25/2008
WILSON
V. DANIELS
PROPERTY: REAL ESTATE DEED REFORMATION; NUISANCE CLAIMS AND REPAIRS
2006-CA-002483
NOT TO BE PUBLISHED: 80
DATE RENDERED: 1/25/2008
KENTUCKY
RETIREMENT SYSTEMS V. HARROD
EMPLOYMENT: GOV'T DISABILITY RETIREMENT INCAPACITY MUST BE BASED ON
OBJECTIVE EVIDENCE
2007-CA-000016
NOT TO BE PUBLISHED: 155
DATE RENDERED: 1/25/2008
MANNING
V. COM.
2004-CA-002076
NOT TO BE PUBLISHED: 86
DATE RENDERED: 1/25/2008
SHECKLES
V. COM.
2006-CA-001829
NOT TO BE PUBLISHED: 115
DATE RENDERED: 1/25/2008
HARVEY
V. COM.
2007-CA-000461
NOT TO BE PUBLISHED: 109
DATE RENDERED: 1/25/2008
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