FEB 21, 2008 SUPREME COURT OF KENTUCKY DECISIONS (Vol. 2008:09)


PUBLISHED (SCOKY)

MEGHOO V. COM.
CRIMINAL:  Search & Seizure; Vehicle Enforcement Officers
2004-SC-001042-DG.pdf
PUBLISHED: AFFIRMING (LAMBERT, CJ; W/MINTON, SCHRODER NOT SITTING)
DATE RENDERED: 2/21/2008

SC granted discretionary review to resolve questions as to the permissible scope of safety inspections by vehicle enforcement officers, and the authority of those officers to investigate and arrest for offenses that are not within the immediate scope of motor vehicle carrier safety statutes and regulations. KRS 281.765 provides that vehicle enforcement officers, who are considered "special officers" under the statute, are to enforce the provisions of Chapter 281 relating to motor carriers, and enforce "any other law relating to motor vehicles" without a warrant if the offense is committed in the officer's presence and with warrant or summons if it is not committed in the officer's presence.

In this case, once the vehicle enforcement officers established a reasonable suspicion based on the documents that other violations of law might be occurring, they were entitled to bring in the drug-sniffing dog for the exterior of the vehicle so long as there was not any unreasonable delay.' The officers were entitled to conduct an investigation "reasonably related in scope to the circumstances that justified the interference in the first place. SC found no limitations in KRS 218A.765 to prevent the vehicle enforcement officers from employing drug-sniffing dogs for the exterior of commercial vehicles. SC's only concern was whether the drug dog was used to sniff the vehicle while Meghoo was lawfully detained. SC concluded that the officers were still conducting a warranted investigation within a reasonable time. Probable cause was properly based on the dog's alert because an exterior canine sniff does not constitute a search for Fourth Amendment purposes.

Under KRS 431 .005(1)(c) the arrest was proper. Vehicle enforcement officers are special officers appointed by the Department of Transportation and, as the above statute shows, are considered "peace officers" in this Commonwealth. KRS 431.005(1)(c) provides that a peace officer may make an arrest without a warrant when he has probable cause to believe that the person being arrested has committed a felony. Once the vehicle enforcement officers had probable cause from the dog's alert that Meghoo had committed a felony offense, they were not required to look away just because their normal purview consists of traffic violations. SC found no limitations on the vehicle enforcement officers' jurisdiction in KRS 281.765 limiting their authority to arrest when they have probable cause under KRS 431.005(1)(c).

Digested by Scott C. Byrd
www.olginandbyrd.com

BELL V. COM.
CRIMINAL:  Trial Court Coercion
2005-SC-000963-MR.pdf
PUBLISHED: REVERSING
MEMORANDUM OPINION
DATE RENDERED: 2/21/2008

SC reversed Bell's convictions for five counts of sexual abuse in the first-degree and one count of sodomy in the first-degree due to coercion by the trial court (TC). TC's behavior and actions during the jury's deliberations were improper and unduly coercive. The circumstances of the deliberations in no way justified delivery of an Allen charge. There was no cause for concern that the jury was deadlocked after less than five hours of deliberation. The evidence against Bell was not overwhelming - it was virtually a "he said, she said" type of case. A reasonable juror would have gotten the clear message from the TC that it was "time for a verdict."

It was harmless error for the TC to deliver multiple instructions that failed to distinguish in some fashion each incident of rape, sexual abuse, or sodomy. Further, on retrial, the testimony of the investigating social worker must exclude her characterizations of the victim's statement and demeanor.

Digested by Scott C. Byrd
www.olginandbyrd.com

BROWN V.  COM 
CRIMINAL:  RCr 11.42
2005-SC-000967-DG.pdf
PUBLISHED: AFFIRMING
OPINION BY SCOTT
DATE RENDERED: 2/21/2008

SC affirmed CA reversal of Circuit Court order finding Brown's counsel provided ineffective assistance of counsel during her murder trial.

Digested by Scott C. Byrd
www.olginandbyrd.com

COM. V. BISHOP
CRIMINAL:  Police Jurisdiction
2006-SC-000123-DG.pdf
PUBLISHED: REVESING, REINSTATING, AND REMANDING
OPINION BY ABRAMSON; MINTON NOT SITTING
DATE RENDERED: 2/21/2008

Reversing the CA and TC, SC held that lawful arrest was made by Manchester city police offer despite it being outside the city, and reinstated the indictments against the Defendants. The municipal order enacted by the City of Manchester in 1987 did not remove jurisdiction from city police officers to effect arrests. Rather, SC held the order simply modified internal, personnel policy for Manchester city police officers, the violation of which results in internal discipline, not in a declaration that the arrest itself is unlawful.

Digested by Scott C. Byrd
www.olginandbyrd.com

SHEPHERD V. COM
CRIMINAL:  Multiple errors rejected, including claim to suppress under KRS 610.220
2006-SC-000450-MR.pdf
PUBLISHED: AFFIRMING
OPINION BY ABRAMSON
DATE RENDERED: 2/21/2008
SC affirmed Defendant's conviction and life sentence for murder, robbery, and tampering with physical evidence.  Shepherd was not entitled to a separate trial from his co-defendants.  SC rejected Shepherd's 8 other claims of error, finding the TC did commit harmless error in including life without the possibility of parole in its sentencing instructions.  A failure to comply with the requirements of KRS 610.220 does not automatically result in suppression of a statement.

Digested by Scott C. Byrd
www.olginandbyrd.com

HENSON V. COM
CRIMINAL:  Anonymous Tips
2005-SC-000666-DG.pdf
PUBLISHED: REVERSING AND REMANDING
OPINION BY ABRAMSON; MINTON, SCHRODER NOT SITTING
DATE RENDERED: 2/21/2008

On discretionary review, SC again reversed the CA and TC, holding that under the totality of the circumstances, the stop was not justified. The anonymous tip was not suitably corroborated and did not provide sufficient indicia of reliability to justify the initial stop, thus tainting any alleged subsequent consent. Particularly noteworthy is the absence of any predictive components about where Henson would be going or what he would be doing. There were no details indicating how the caller knew about the illegal drugs. The absence of a predictive component distinguishes these facts from Stewart v. Commonwealth, 44 S.W.3d 376 (Ky.App. 2000).

Digested by Scott C. Byrd
www.olginandbyrd.com

GRIPSHOVER V. CRIPSHOVER
FAMILY LAW:  Nonmarital Property, Estate Planning, Child Support, Section 179 Expense, Imputed Income
2005-SC-000729-DG.pdf
PUBLISHED: AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
OPINION BY ABRAMSON; SCHRODER NOT SITTING
DATE RENDERED: 3/19/2008

Husband and his brother owned a farming operation, realty totaling over 600 acres, and a promissory note for more than a million dollars. They formed two limited partnerships: 1) a real estate partnership with their wives that would hold and manage the realty, and 2) a partnership to manage the farming operation. The brothers also assigned their partnership interests to two trusts. The wife signed documents allowing said transfers. The Supreme Court granted discretionary review to consider the validity of the partnership and trust into which the parties transferred a large portion of their estate less than a year prior to the filing of the petition for divorce, as well as to review the child support and maintenance awards.

Real estate partnership and trust: There was no evidence that either party was contemplating divorce at the time the estate plan was executed or that the husband’s intent was to impair the wife’s marital rights. Therefore, the wife had not been defrauded, as she knowingly and voluntarily consented to the estate plan. The COA erred in holding that the wife retained an interest in the realty and that it was subject to division as marital property. The wife’s argument that the estate plan should be set aside due to the husband retaining control over the realty and not truly giving it to the trust is without merit. SC noted that the wife did not join the necessary parties to challenge the validity of the partnership and trust. Moreover, SC held there was nothing wrong with the brothers retaining control of the realty for the purpose of use in the farming operation. The realty was not transferred to the trust, but instead the partner’s interest in the partnership. Thus, the realty was validly removed from the marital estate and was not subject to division.

Husband’s nonmarital interest in the promissory note: Wife argues that husband’s entire half of the note is marital, since the other siblings quit-claimed their interests to the three remaining siblings (one being the husband) in 1987 (parties married in 1988) for no consideration. Wife argued that because the siblings gave up their interests for no consideration, the property should be regarded as having no equity at that point, and that all equity in the property was acquired after the marriage. The court rejected this argument, especially since in 1989 a small portion of the land was sold for more than the outstanding indebtedness which adequately established that the property increased in value as a result of economic factors alone.

Child support and maintenance: The parties’ incomes were wrongly determined. TC erred in allowing the husband to calculate his income for child support purposes using 26 U.S.C. sec. 179 expense deductions. Section 179 provides an alternative to standard, straight line depreciation, which KRS 403.212(2)(c) mandates as the only allowable method. TC also erred in imputing the wife with $360 per week of income, a level of income well above what she achieved when she was younger and in much better health. TC did not adequately consider all of the statutory factors in KRS 403.212(2)(d). Therefore, SC held that both child support and maintenance must be reconsidered.

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

MID-STATE PLASTICS, INC. V. EST. OF WILLIAM CLINTON BRYANT
TORTS: EMPLOYER LIABILITY
2006-SC-000425-DG.pdf
PUBLISHED: REVERSING
OPINION BY SCHRODER, CUNNINGHAM NOT SITTING; LAMBERT DISSENTS BY SEP. OP
DATE RENDERED: 2/21/2008

In this case, the Kentucky Supreme Court addresses the sole issue of whether an employer is liable for an employee's tortious injuries to a guest who accompanied the employee on a business trip. The factual background of the case is as follows: An employee of Appellant (actually, its President, General Manager and Chief Executive) leased a plane and personally flew it out of state on a business trip. He invited a pastor friend to ride along with him free of charge so that he visit his family while the employee worked. Unfortunately, the plane struck a cell tower on the return trip killing both of them. The pastor's estate sued the employee's estate and the Appellant employer premised on vicarious liability. The TC granted Summary Judgment to Appellant in a bare-bones order. The estate appealed, and the COA reversed on its determination that factual issues had to be resolved as to whether Appellant had actual knowledge of employee's practice of allowing non-business passengers to accompany him on business trips, and if so, whether Appellant failed to object. The Appellant appealed and the SC granted review. 

The SC begins its Opinion by citing Wigginton Studio v. Reuter's Adm'r, 254 Ky. 128, 71 S.W.2d 14 (1938) as controlling precedent with similar case facts. In that case, Kentucky's highest court at the time held that not only does the employee have to be acting within the scope of his/her authority in inviting the guest, but also the guest's presence must be determined to be in furtherance of the employer's business. As applied to the present case facts, the SC held that the pastor's presence could not be construed as being for the purpose of accomplishing the Appellant's work. He accompanied the employee for purely personal reasons. This result is not changed by the fact that the pilot was an officer of the Appellant rather than mere low-level employee. The SC renounced the COA's reasoning in its decision that when an employer is aware that the employee invites guests and does nothing to enforce a "no rider" rule, the guest become an invitee of the employer and exposes it to liability for the harmful actions of its employees. While the COA noted that its position had been adopted by a number of other states, the SC held that the COA's decision completely ignores the second requirement of Wigginton that the guest's presence must further the employer's business. 

Chief Justice Lambert was the sole dissenter, arguing that the real issue for determining potential vicarious liability is whether the trip itself furthered the Appellant's business, not whether the pastor's presence benefited Appellant. 

By Chad Kessinger, Schiller Osbourn Barnes & Maloney 

MORSEY, INC. V. FRAZIER
WORKERS COMP:  Survivor Benefits
2007-SC-000159-WC.pdf
PUBLISHED: REVERSING AND REMANDING
OPINION OF THE COURT
DATE RENDERED: 2/21/2008

KRS 342 .730(4) limits the duration of an award of survivors’ benefits to a widow of an employee who dies because of a work related accident to the date when the widow would qualify for regular Social Security retirement benefits based on the employee’s earnings record. Referring to 42 U.S .C. § 402(e), the Court held that a widow’s benefits terminate at the time she reaches the age of sixty (60), when she will qualify for widows’ benefits under the Social Security Act.

Digest by Peter Naake

Sebastian-Voor Properties, LLC, et al. v. Lexington-Fayette Urban County Government, et al.
ZONING:  Land Use Planning
PUBLISHED: AFFIRMING
OPINION BY SCHRODER; NOBLE NOT SITTING; ABRAMSON CONCURRING IN RESULT ONLY
DATE RENDERED:  2/21/2008
2006-SC-000732-DG.pdf
NOT PUBLISHED: 930
DATE RENDERED: 2/21/2008

In 1963 the Lexington-Fayette County Planning Commission (“Commission”) approved a preliminary development plan for 122 one-acre lots in an agriculturally zoned area. Only 40 of the lots received final plat approval within the statutorily allowed time. Another 19 lots received approval in 1966 after the preliminary plan was re-approved. In 1967, the zoning regulations were changed to increase the minimum residential lot size from 1 acre to 10 acres. However, over the next 29 years, the Commission, contrary to existing regulations, approved final plats for 17 additional one-acre lots. 

In 2002, the property owner applied for preliminary approval for one-acre lots on the remaining 59 acres. The Commission denied approval because the lots did not meet the minimum lot size and did not qualify for septic service. The owner appealed and moved for summary judgment on the grounds of equitable estoppel, arguing that prior approvals created vested property rights. The circuit court denied the motion. The owner again appealed. The court of appeals held that while equitable estoppel may be invoked against a governmental entity under exceptional circumstances, the facts of the case did not rise to that level. The Kentucky Supreme Court granted discretionary review.

The Supreme Court affirmed, stating that the proposed development did not comply with the current zoning regulations so that the Commission’s decision to deny the plan was not arbitrary. It stated that the owner, to develop as proposed, must seek a zone map amendment. The court also affirmed the decision that equitable estoppel did not apply because a public official’s previous erroneous interpretation of the law does not prevent a later proper interpretation.

Digest by Sam Hinkle

 

ATTORNEYS

Refer to minutes

NOT PUBLISHED (SCOKY) 

2004-SC-001092-MR.pdf
NOT PUBLISHED: 2260
DATE RENDERED: 2/19/2008

PENHAM V. COM.
2005-SC-000705-MR.pdf
NOT PUBLISHED: 1085
DATE RENDERED: 2/21/2008

COMER V. COM.
2006-SC-000089-MR.pdf
NOT PUBLISHED: 278
DATE RENDERED: 2/21/2008

2006-SC-000151-DG.pdf
NOT PUBLISHED: 1574
DATE RENDERED: 2/21/2008

2006-SC-000256-DG.pdf
NOT PUBLISHED: 1221
DATE RENDERED: 3/19/2008

COM. V. TERRELL
2006-SC-000286-TG.pdf
NOT PUBLISHED: 764
DATE RENDERED: 2/21/2008

FEGLEY V. COM
2006-SC-000329-MR.pdf
NOT PUBLISHED: 491
DATE RENDERED: 2/21/2008

SHOUSE V. COM.
2006-SC-000345-MR.pdf
NOT PUBLISHED: 904
DATE RENDERED: 2/21/2008

MILLER V. COM.
2006-SC-000464-MR.pdf
NOT PUBLISHED: 2152
DATE RENDERED: 2/21/2008

HAYNES V. COM
2006-SC-000535-MR.pdf
NOT PUBLISHED: 524
DATE RENDERED: 2/21/2008

HUNT V. COM
2006-SC-000568-MR.pdf
NOT PUBLISHED: 834
DATE RENDERED: 2/21/2008

MAYES V. COM
2006-SC-000656-MR.pdf
NOT PUBLISHED: 943
DATE RENDERED: 2/21/2008

OWENS V. COM
2006-SC-000713-MR.pdf
NOT PUBLISHED: 537
DATE RENDERED: 2/21/2008

TINCH V. COM
2006-SC-000832-WC.pdf
NOT PUBLISHED: 716
DATE RENDERED: 2/20/2008

BURNWELL ENERGY CO. V. SMITH
WORKERS COMP
2007-SC-000114-WC.pdf
NOT PUBLISHED: 365
DATE RENDERED: 2/21/2008

UPS V. HICKMAN
WORKERS COMP
2007-SC-000132-WC.pdf
NOT PUBLISHED: 797
DATE RENDERED: 2/21/2008

MUNCY V. ELMO GREER & SONS
WORKERS COMP
2007-SC-000169-WC.pdf
NOT PUBLISHED: 403
DATE RENDERED: 2/21/2008

ULESS MILLS V. CTA ACOUSTICS, INC
WORKERS COMP
2007-SC-000237-WC.pdf
NOT PUBLISHED: 808
DATE RENDERED: 2/21/2008

FINANCE AND ADMINISTRATION CAB. V. HON. GENE CLARK
WRIT OF PROHIBITION; JURISDICTION; FAMILY LAW:  Court ordered garnishment against FAO for attorneys fees for court appointed counsel
2007-SC-000362-MR.pdf
NOT PUBLISHED: 587
DATE RENDERED: 3/20/2008

2007-SC-000740-KB.pdf
NOT PUBLISHED: 462
DATE RENDERED: 2/21/2008

2007-SC-000862-KB.pdf
NOT PUBLISHED: 152
DATE RENDERED: 2/21/2008

2007-SC-000865-KB.pdf
NOT PUBLISHED: 193
DATE RENDERED: 2/21/2008

2007-SC-000866-KB.pdf
NOT PUBLISHED: 174
DATE RENDERED: 2/21/2008

2007-SC-000867-KB.pdf
NOT PUBLISHED: 937
DATE RENDERED: 2/21/2008

2008-SC-000012-KB.pdf
NOT PUBLISHED: 201
DATE RENDERED: 2/21/2008

 

Contributors: