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: Kentucky Cases

September 2010 COA - Minutes and Monthly Summary of Pubished Decisions

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I apologize for getting behind on posting the minutes. In fact, the COA was faster than I by posting the minutes and their monthly summaries for September and October 2010. Therefore, I am going to do two separate posts, one for September and one for October. Each monthly post with have links to each of the minutes for that month AND the monthly summary of published decisions. Here are the September 2010 Minutes and Published Decision Summaries from Court of Appeals. <ul> <li><a href="http://apps.courts.ky.gov/Appeals/Minutes/MNT09032010.pdf" target="_self">September 3, 2010 Minutes</a></li> <li><a href="http://apps.courts.ky.gov/Appeals/Minutes/MNT09102010.pdf" target="_self">September 10, 2010 Minutes</a></li> <li><a href="http://apps.courts.ky.gov/Appeals/Minutes/MNT09172010.pdf" target="_self">September 17, 2010 Minutes</a></li> <li><a href="http://apps.courts.ky.gov/Appeals/Minutes/MNT09242010.pdf" target="_self">September 24, 2010 Minutes</a></li> </ul> <a href="http://apps.courts.ky.gov/Appeals/Opinions/September2010.pdf" target="_self">September 2010 Monthly Summary </a>of Published Decisions of Court of Appeals <div> KENTUCKY COURT OF APPEALS PUBLISHED OPINIONS SEPTEMBER 2010 I. ADMINISTRATIVE LAW A. Elliot Electric/Kentucky, Inc. v. Kentucky Occupational Safety and Health Review Comm'n <a href="http://opinions.kycourts.net/coa/2009-CA-001997.pdf"> </a><a href="http://opinions.kycourts.net/coa/2009-CA-001997.pdf">2009-CA-001997</a> 9/24/2010 2010 WL 3717293 Opinion by Judge Combs; Judge Caperton and Senior Judge Lambert concurred. The Court affirmed an opinion and order of the circuit court dismissing for lack of jurisdiction an employer's appeal of a decision of the Kentucky Occupational Safety and Health Review Commission. The Court held that when the employer appealed the Commission's decision to the circuit court three months after it became final, rather than within the allotted thirty days, it failed to meet the single condition precedent to the court's jurisdiction. Because the appeal failed to comply with the requirements of KRS 338.091(1), jurisdiction of the circuit court could not be invoked. The doctrine of equitable tolling could not apply to suspend the running of the thirty-day period because KRS 338.901(1) provided the exclusive means for contesting the final decision and strict compliance with its terms was required. II. APPEAL AND ERROR A. Hamilton v. Commonwealth <a href="http://opinions.kycourts.net/coa/2009-CA-000949.pdf"> </a><a href="http://opinions.kycourts.net/coa/2009-CA-000949.pdf">2009-CA-000949</a> 9/24/2010 2010 WL 3717249 Opinion by Judge Combs; Senior Judge Lambert concurred; Judge Clayton dissented by separate opinion. The Court dismissed appellants' appeals from their convictions of trafficking in buprenorphine. Appellants entered conditional guilty pleas after the trial court denied their motion to dismiss the indictment based on their argument that Suboxone was improperly classified as a Schedule III drug. The court held that it was compelled to dismiss because the Cabinet for Health and Family Services was not named as a party to the appeal. As the promulgating administrative body, the Cabinet was an indispensable party to the appeal and KRS 13A.140(b) mandated that the Cabinet bore the burden to defend the regulation at issue. III. CIVIL PROCEDURE A. Mitchell v. Coldstream Laboratories, Inc. <a href="http://opinions.kycourts.net/coa/2009-CA-001885.pdf"> </a><a href="http://opinions.kycourts.net/coa/2009-CA-001885.pdf">2009-CA-001885</a> 9/24/2010 2010 WL 3717282 Opinion by Judge Combs; Judge Caperton and Senior Judge Lambert concurred. The Court vacated and remanded an order of the circuit court dismissing appellant's counterclaim against his former employer. The Court held that the trial court erred by concluding that appellant failed to state a claim on his counterclaim in which he alleged that he had been wrongfully discharged for his refusal to violate the law in the course of his employment and that his dismissal was contrary to a fundamental and well-defined public policy. The allegations met the bare elements of recognized causes of action and dismissal was premature. While the employer may have been entitled to more detailed information regarding the allegations before it was required to file a reply, the vehicle for seeking such expansion of the allegations was CR 12.05, which provided for a more definite statement. IV. CRIMINAL LAW A. Berry v. Commonwealth <a href="http://opinions.kycourts.net/coa/2009-CA-000951.pdf"> </a><a href="http://opinions.kycourts.net/coa/2009-CA-000951.pdf">2009-CA-000951</a> 9/17/2010 2010 WL 3604113 Opinion by Judge Clayton; Chief Judge Taylor and Judge Thompson concurred. The Court affirmed an order of the circuit court denying appellant's fourth collateral motion for a new trial wherein he claimed that he was entitled to a new trial based upon the holding in Chestnut v. Commonwealth, 250 S. W.3d 288 (Ky. 2008). The Court held that the trial court did not err in denying the motion. The case did not involve a "flagrant miscarriage of justice." On direct appeal, the Supreme Court held that it was not error to fail to disclose an oral statement of a witness in discovery, there was convincing evidence aside from the testimony of the witness, and appellant had received significant direct and collateral review since his conviction 20 years prior. Chestnut could not be applied retroactively to afford appellant relief. B. Commonwealth v. Elliott <a href="http://opinions.kycourts.net/coa/2009-CA-001603.pdf"> </a><a href="http://opinions.kycourts.net/coa/2009-CA-001603.pdf">2009-CA-001603</a> 9/10/2010 2010 WL 3515795 Opinion by Judge Lambert; Judge Clayton and Senior Judge Henry concurred. The Court reversed an order of the circuit court granting a motion to suppress evidence of cocaine and drug paraphernalia found in appellee's automobile after he was arrested for driving under the influence and after he was secured in the back of a police vehicle. The Court held that the trial court erred as a matter of law in suppressing the evidence. The search was lawful under the revised "search incident to arrest" exception set forth in Arizona v. Gant, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009), and the "automobile" exception because the officer had reason to believe the vehicle contained evidence of the offense of arrest and there was probable cause to believe that contraband was present in the vehicle. C. Maynes v. Commonwealth <a href="http://opinions.kycourts.net/coa/2009-CA-002274.pdf"> </a><a href="http://opinions.kycourts.net/coa/2009-CA-002274.pdf">2009-CA-002274</a> 9/24/2010 2010 WL 3717299 Opinion by Senior Judge Isaac; Judge Acree and Senior Judge Henry concurred. The Court affirmed an order of the circuit court imposing costs following appellant's guilty plea. The Court held that in KRS 31.110(1)(b), the legislature was referring to the costs of preparing and maintaining a defense for a needy person, not court costs after conviction, and that the more specific statute, KRS 31.211, controlled to allow for court costs to be assessable to a criminal defendant even though he qualified for appointment of counsel. D. Schell v. Commonwealth <a href="http://opinions.kycourts.net/coa/2009-CA-001502.pdf"> </a><a href="http://opinions.kycourts.net/coa/2009-CA-001502.pdf">2009-CA-001502</a> 9/17/2010 2010 WL 3604141 Opinion by Senior Judge Harris; Judges Keller and Thompson concurred. The Court affirmed an order of the circuit court denying appellant's motion for post-conviction relief under RCr 11.42. In a case of first impression the Court held that the trial court did not err in denying relief when the defense attorney revealed that appellant had been convicted of a previous felony during voir dire. Counsel was not ineffective. While the strategy was risky, it was neither unreasonable nor incompetent but was planned and analyzed in light of overwhelming evidence of guilt and intended as a means to ferret out those jurors who might be particularly harsh at the sentencing phase. E. Smith v. Commonwealth <a href="http://opinions.kycourts.net/coa/2009-CA-001481.pdf"> </a><a href="http://opinions.kycourts.net/coa/2009-CA-001481.pdf">2009-CA-001481</a> 9/24/2010 2010 WL 3716848 Opinion by Judge Keller; Judge Thompson and Senior Judge Harris concurred. The Court affirmed an order of the circuit court directing that cash seized from appellant be forfeited after appellant was convicted for various drug offenses. The Court held that the trial court did not err in directing the forfeiture. In reaching that conclusion the Court first held that the Commonwealth established a prima facie case for forfeiture pursuant to KRS 218A.410 and it was not necessary for appellant to be convicted of a trafficking charge but only that the Commonwealth show a nexus between the cash and its use to facilitate violation of the Controlled Substances Act, KRS 218A. The Court then held that appellant failed to meet his burden to rebut the presumption by clear and convincing evidence. The trial court was not persuaded that another person loaned appellant the cash, which was within its exclusive province as fact-finder. V. FAMILY LAW A. Carpenter-Moore v. Carpenter <a href="http://opinions.kycourts.net/coa/2010-CA-000164.pdf"> </a><a href="http://opinions.kycourts.net/coa/2010-CA-000164.pdf">2010-CA-000164</a> 9/24/2010 2010 WL 3717303 Opinion by Senior Judge Harris; Judge Thompson concurred; Judge Keller concurred in result only. The Court affirmed an order of the family court denying appellant's motion to relocate with the parties' minor children. The Court first held that the procedures required by Fenwick v. Fenwick, 114 S.W.3d 767 (Ky. 2003), were inapplicable because the custody decree was never modified. Therefore, any failure to follow its procedural mandates was harmless and the family court did not err in failing to summarily grant appellant's motion to relocate. The Court then held that the family court did not err in its determination that Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008), was the applicable law. The Court finally held that the family court did not err when it found that relocation was not in the best interests of the children. B. Guffey v. Guffey <a href="http://opinions.kycourts.net/coa/2009-CA-000932.pdf"> </a><a href="http://opinions.kycourts.net/coa/2009-CA-000932.pdf">2009-CA-000932</a> 9/24/2010 2010 WL 3717246 Opinion by Judge Combs; Judge Caperton and Senior Judge Lambert concurred. The Court affirmed in part, reversed in part, and remanded a decree of dissolution issued by the family court. The Court first held that the trial court did not abuse its discretion in denying appellant's motion for a continuance. The factors in Snodgrass v. Commonwealth, 814 S.W.2d 579, 581 (Ky. 1991) (overruled on other grounds by Lawson v. Commonwealth, 53 S.W.3d 534 (Ky. 2001)), were applicable. A continuance could have resulted in a significant delay; a continuance would have been inconvenient for the court, appellee and counsel; appellant did not attempt to request a continuance until a few days before the hearing, and appellant could not demonstrate identifiable prejudice. The Court then held that the family court abused its discretion in dividing the marital debt, including an anticipated deficiency judgment resulting from a foreclosure of the marital home, in light of the disparity between the parties' financial situations and the fact that appellant did not have any means of mitigating the foreclosure of the home when appellee had been ordered by the court to make payments on the mortgages. C. J.M. v. Commonwealth <a href="http://opinions.kycourts.net/coa/2010-CA-000156.pdf"> </a><a href="http://opinions.kycourts.net/coa/2010-CA-000156.pdf">2010-CA-000156</a> 9/10/2010 2010 WL 3515822 Opinion by Judge Acree; Judge Nickell concurred; Senior Judge Harris concurred by separate opinion. The Court affirmed an order of the family court denying a grandmother temporary custody of her three grandchildren in a neglect action. The Court reviewed the appeal for manifest injustice because appellant's brief did not cite to the record or state whether the issues raised were preserved for appellate review, as required by CR 76.12(4)(c)(v). The Court then held that there was no manifest injustice and the family court did not abuse its discretion by denying appellant's motion. Simply alleging the lack of a full evidentiary hearing was "unfair" did not warrant a finding of manifest injustice. Although, pursuant to KRS 602.090, the court was required to place the children with a qualified family member, the family court properly found that the grandmother was not qualified when there was evidence that appellant's daughter had been abused in the home, the Cabinet and the GAL recommended not granting temporary custody to appellant, and one of the children stated a preference not to be placed with appellant. The family court was not bound to follow the recommendation of out-of-state officials that the children should be placed with appellant. D. Mosley v. Mosley <a href="http://opinions.kycourts.net/coa/2009-CA-000177.pdf"> </a><a href="http://opinions.kycourts.net/coa/2009-CA-000177.pdf">2009-CA-000177</a> 9/10/2010 2010 WL 3515724 Opinion by Judge Thompson; Chief Judge Taylor and Judge Moore concurred. The Court reversed and remanded an order of the circuit court denying appellant's motion to amend her response to a petition for dissolution of marriage to include a request for maintenance. The Court held that the circuit court improperly denied the request and remanded for further proceedings regarding the issue of maintenance. Appellant did not become aware of appellee's significant inheritance until after appellee filed his circuit court brief. Although the inheritance was not subject to division, it was relevant to appellee's ability to pay maintenance while meeting his own needs. If appellant was entitled to maintenance, not permitting the amendment worked a far greater injustice to appellant than permitting the amendment did to appellee. VI. GOVERNMENT

Full post as published by Kentucky Cases on November 15, 2010 (boomark / email).