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JURY INSTRUCTIONS SAMPLE

 STIPULATED JURY INSTRUCTIONS State v. Manny Rayfield Curr County Circuit Court Case No. 09-3031 State of New Maine Instruction Number Instruction Description 1. Preliminary Instructions 2. Functions of the Court and Jury 3. Presumption of Innocence of Defendant and Proof Beyond a Reasonable Doubt 4. Definition of Direct and Circumstantial Evidence 5. Testimony of Witnesses (Deciding What to Believe) 6. Defendant’s Statements 7. Witness False in Part 8. Witness’s Prior Conviction 9. Absence of Evidence 10. Expert Witnesses 11. Non-expert Witnesses 12. Defendant Not Testifying 13. Accomplice Witness–Definition 14. Accomplice Testimony 15. Accomplice Corroboration 16. Criminal Charges (Count I: Dogfighting; Counts II & III: Practicing Veterinary Medicine Without a License) Stipulated Jury Instructions

 

Page – 1 INSTRUCTION No. 1 PRELIMINARY INSTRUCTIONS (Note: Instruction No. 1 was given by the Court to the members of the jury prior to taking testimony) Introductory Paragraphs Ladies and gentlemen: You are now the jury in this case, and I want to take a few minutes to tell you something about your duties as jurors and to give you some instructions. At the end of the trial, I will give you more detailed instructions. Those instructions will control your deliberations. One of my duties is to decide all questions of law and procedure. From time to time during the trial and at the end of the trial, I will instruct you on the rules of law that you must follow in making your decision. You should not take anything I may say or do during the trial as indicating what I think of the evidence or what your verdict should be. Order of Trial The trial will proceed in the following manner: First, the State’s attorney may make an opening statement. Next, Defendant’s attorney may make an opening statement. An opening statement is not evidence but is simply a summary of what the attorney expects the evidence to be. After the opening statements, the State will call witnesses and present evidence. Then, the Defendant will have an opportunity to call witnesses and present evidence. After the parties’ main cases are completed, the State may be permitted to present rebuttal evidence. After the evidence has been presented, I will instruct you on the law that applies to the case and the attorneys will make closing arguments. After that, you will go to the jury room to deliberate on your verdict. Charges and Defenses The positions of the parties can be summarized as follows: This case involves criminal charges by the State of New Maine against the Defendant, Manny Rayfield. The Defendant has been charged with animal fighting (Count I of the Indictment) and the unlicensed practice of veterinary medicine (Counts II and III of the Indictment). Defendant has pleaded not guilty to each of these three charges. Stipulated Jury Instructions Page – 2 Evidence in the Case The evidence consists of the testimony of the witnesses, the exhibits admitted in evidence, and any facts that I may instruct you to find or that the parties may agree or stipulate to. A stipulation is an agreement between both sides that certain facts are true. Credibility of Witnesses You will have to decide whether the testimony of each of the witnesses is truthful and accurate, in part, in whole, or not at all. You also have to decide what weight, if any, you give to the testimony of each witness. Inferences You should use common sense in weighing the evidence and consider the evidence in light of your own observations in life. In our lives, we often look at one fact and conclude from it that another fact exists. In law we call this “inference.” A jury is allowed to make reasonable inferences. Any inference you make must be reasonable and must be based on the evidence in the case. What is Not Evidence; Evidence for Limited Purpose The following things are not evidence, and you must not consider them as evidence in deciding the facts of this case: the attorneys’ statements, arguments, questions, and objections of the attorneys; any testimony that I instruct you to disregard; and anything you may see or hear when the court is not in session even if what you see or hear is done or said by one of the parties or by one of the witnesses. Rulings on Objections From time to time during the trial I may be called upon to make rulings of law on objections or motions made by the lawyers. You should not infer or conclude from any ruling or other comment I may make that I have any opinions about how you should decide this case. And if I should sustain an objection to a question that goes unanswered by a witness, you should not guess or speculate what the answer might have been, and you should not draw any inferences or conclusions from the question itself. Objections of Counsel The lawyers for the parties in this trial have a duty to object to what they feel are improper questions asked of the witnesses. You should not draw any conclusion for Stipulated Jury Instructions Page – 3 either side from the fact that an objection was made to any question and that the witness may not have been permitted to answer it. Jury Conduct All jurors must follow certain rules of conduct, and you must follow them, too. First, you must not discuss this case with anyone, including your fellow jurors, members of your family, people involved in the trial, or anyone else. You must not let others discuss the case with you. If anyone tries to talk to you about the case please let me know about it immediately. Second, you must not read any news stories or articles or listen to any radio or television reports about the case or about anyone who has anything to do with it. Third, you must not do any research, such as consulting dictionaries, searching the Internet or using other reference materials, and do not make any investigation about the case on your own. Fourth, you must not make up your mind about what the verdict should be until after you have gone to the jury room to decide this case and you and your fellow jurors have discussed the evidence. Keep an open mind until then. INSTRUCTION No. 2 FUNCTIONS OF THE COURT AND THE JURY Members of the jury, you have seen and heard all the evidence and arguments of the attorneys. Now I will instruct you on the law. You have two duties as a jury. Your first duty is to decide the facts from the evidence in the case. This is your job, and yours alone. Your second duty is to apply the law that I give you to the facts. You must follow these instructions, even if you disagree with them. Each of the instructions is important, and you must follow all of them. Perform these duties fairly and impartially. Nothing I say now, and nothing I said or did during the trial, is meant to indicate any opinion on my part about what the facts are or about what your verdict should be. Stipulated Jury Instructions Page – 4 INSTRUCTION No. 3 PRESUMPTION OF INNOCENCE OF DEFENDANT AND PROOF BEYOND A REASONABLE DOUBT The defendant is presumed innocent unless and until the defendant is proven guilty beyond a reasonable doubt. The burden is on the State to prove the guilt of the defendant beyond a reasonable doubt. Reasonable doubt is doubt based on common sense and reason. Reasonable doubt means an honest uncertainty as to the guilt of the defendant. Reasonable doubt exists when, after careful and impartial consideration of all the evidence in the case, you are not convinced to a moral certainty that the defendant is guilty. The Defendant is never required to prove his innocence or to produce any evidence at all. INSTRUCTION No. 4 DEFINITION OF “DIRECT” AND “CIRCUMSTANTIAL” EVIDENCE You may have heard the phrases “direct evidence” and “circumstantial evidence.” Direct evidence is proof that does not require an inference, such as the testimony of someone who claims to have personal knowledge of a fact. Circumstantial evidence is proof of a fact, or a series of facts, that tends to show that some other fact is true. As an example, direct evidence that it is raining is testimony from a witness who says, “I was outside a minute ago and I saw it raining.” Circumstantial evidence that it is raining is the observation of someone entering a room carrying a wet umbrella. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. You should decide how much weight to give to any evidence. In reaching your verdict, you should consider all the evidence in the case, including the circumstantial evidence. INSTRUCTION No. 5 TESTIMONY OF WITNESSES (DECIDING WHAT TO BELIEVE) You must decide whether the testimony of each of the witnesses is truthful and accurate, in part, in whole, or not at all. You also must decide what weight, if any, you give to the testimony of each witness. In evaluating the testimony of any witness, including any party to the case, you may consider, among other things: Stipulated Jury Instructions Page – 5 • the ability and opportunity the witness had to see, hear, or know the things that the witness testified about; • the witness’s memory; • any interest, bias, or prejudice the witness may have; • the witness’s intelligence; • the manner of the witness while testifying; and • the reasonableness of the witness’s testimony in light of all the evidence in the case. INSTRUCTION No. 6 DEFENDANT’S STATEMENTS When a witness testifies about statements made by the defendant, you should consider such testimony with caution. In reviewing such testimony, you should consider, among other things, the following: (1) Did the defendant make the statement, and, if so, did the defendant clearly express what [he / she] intended to say? (2) Did the witness correctly hear and understand what the defendant said? (3) Did the witness correctly remember and relate what the defendant said? (4) Did the witness intentionally or mistakenly alter some of the words used by the defendant, thereby changing the meaning of what was actually said? If, after weighing such factors, you conclude that the defendant said what [he / she] intended to say and that the witness to the statement correctly understood, remembered, and related to you what the defendant said, then you are authorized to consider such statements for what you deem them to be worth. INSTRUCTION No. 7 WITNESS FALSE IN PART A witness who lies under oath in some part of his or her testimony is likely to lie in other parts of his or her testimony. Therefore, if you find that a witness has lied in some part of his or her testimony, then you may distrust the rest of that witness’s testimony. Sometimes witnesses who are not lying may give incorrect testimony. They may forget matters or may contradict themselves. Also, different witnesses may observe or remember an event differently. You have the sole responsibility to determine what testimony, or portions of testimony, you will or will not rely on in reaching your verdict. INSTRUCTION No. 8 Stipulated Jury Instructions Page – 6 WITNESS’S PRIOR CONVICTION If you find that a witness has been convicted of a crime, you may consider this conviction only for its bearing, if any, on the believability of the witness’s testimony. INSTRUCTION No. 9 ABSENCE OF EVIDENCE The law does not require any party to call as a witness every person who might have knowledge of the facts related to this trial. Similarly, the law does not require any party to present as exhibits all papers and things mentioned during this trial. INSTRUCTION No. 10 EXPERT WITNESSES You have heard witnesses give opinions about matters requiring special knowledge or skill. You should judge this testimony in the same way that you judge the testimony of any other witness. The fact that such person has given an opinion does not mean that you are required to accept it. Give the testimony whatever weight you think it deserves, considering the reasons given for the opinion, the witness’s qualifications, and all of the other evidence in the case. INSTRUCTION No. 11 NONEXPERT OPINION EVIDENCE Although a witness may be allowed to state his or her opinion, you are not required to accept that opinion. To determine what value, if any, you will give to a witness’s opinion you should consider such things as the witness’s opportunity and ability to form the opinion, the witness’s believability, and how the witness reached the opinion. INSTRUCTION No. 12 DEFENDANT NOT TESTIFYING A defendant has an absolute constitutional right not to testify. Therefore, a defendant’s decision not to testify cannot be considered as an indication of guilt. It should not be commented on or in any way considered by you in your deliberations. Stipulated Jury Instructions Page – 7 INSTRUCTION No. 13 ACCOMPLICE WITNESS—DEFINITION A witness is an accomplice witness if he could be charged with the same crime or crimes as that with which the defendant is charged. Therefore, under the circumstances of this case, despite the grant of immunity by the prosecutor, Billy Rayfield is an accomplice as he could have been charged by the State with the same crimes as the defendant. INSTRUCTION No. 14 ACCOMPLICE TESTIMONY (View with Distrust) As an accomplice witness, I instruct you that you should view Billy Rayfield’s witness’s testimony with distrust. INSTRUCTION No. 15 ACCOMPLICE—CORROBORATION The testimony of an accomplice in and of itself is not sufficient to support a conviction. There must be in addition some evidence other than the testimony of an accomplice that tends to connect the defendant with the commission of the crime. This other evidence, or corroboration, need not be sufficient by itself to support a conviction but it must tend to show something more than just that a crime was committed. It must also connect or tend to connect the defendant with the commission of the crime. INSTRUCTION No. 16 CRIMINAL CHARGES THE CHARGE – THE INDICTMENT The indictment in this case is the formal method of accusing the Defendant of an offense and placing the Defendant on trial. It is not evidence against the Defendant and does not create any inference of guilt. The Defendant is charged with the offenses of dogfighting (Count I as to all nine dogs) and two counts of practicing veterinary medicine without a license (Count II as to the dog Stipulated Jury Instructions Page – 8 named Shred and III as to the dog named White Fiend). The Defendant has pleaded not guilty to each of these three charges. DOGFIGHTING IN VIOLATION OF STATE STATUTE (Count I) In the State of New Maine, it is unlawful for any person to own, possess, keep or train any animal with the intent that the animal be engaged in an exhibition of fighting. The State contends that the Defendant violated the New Maine dogfighting statute. The Defendant is entitled to the presumption of innocence unless the State proves, beyond a reasonable doubt, all elements of the crime of dogfighting. Accordingly, it is the State’s burden to convince you beyond a reasonable doubt that: • The Defendant owned, possessed, kept or trained an animal; • The Defendant intended the animal to be engaged in an exhibition of fighting. A person acts “intentionally” or “with intent” when that person acts with a conscious objective either: (1) To cause a particular result; or (2) To engage in particular conduct. If you find from your consideration of all the evidence that each of the above elements are satisfied beyond a reasonable doubt, then you should find the Defendant guilty of dogfighting in violation of state statute. PRACTICING VETERINARY MEDICINE WITHOUT A LICENSE (Counts II & III) In the State of New Maine, the practice of veterinary medicine is a privilege given only to persons holding a valid veterinary medicine license. To obtain such a license, a person must be qualified by educational training and experience and granted a veterinary license by the State of New Maine. The State contends that the Defendant has practiced veterinary medicine without a license. The Defendant is entitled to the presumption of innocence unless the State proves, beyond a reasonable doubt, all elements of the crime of practicing veterinary medicine without a license. To sustain the charge in the indictment relating to the unauthorized practice of veterinary medicine, the State must prove beyond a reasonable doubt that the Defendant committed acts that constitute veterinary medicine. I instruct you that a valid license of veterinary medicine is required to perform the following acts in the State of New Maine: Stipulated Jury Instructions Page – 9 • Diagnoses, treats, corrects, changes, relieves or prevents animal disease, deformity, injury or other physical, mental or dental conditions by any method or mode, including the prescription or administration of any drug, medicine, biologic, apparatus, application, anesthetic or other therapeutic or diagnostic substance, technique or non-surgical procedure; or • Performs a surgical operation, including cosmetic surgery, upon any animal. If you find from your consideration of all the evidence that the Defendant committed one or more of the above acts beyond a reasonable doubt, then you should find the Defendant guilty of the unauthorized practice of veterinary medicine. This concludes the instruction phase of the case and after the clerk administers the oath prior to deliberations, you will be escorted into the jury room to begin your work. A unanimous verdict, meaning all twelve of you must agree on a verdict, is required in this State. The Court thanks you for your attention to this important matter. END

Tax liability for Spousal Support

 Is Alimony Always Tax Deductible to the Paying Spouse?

Generally, the paying spouse deducts alimony payment from their taxes, but there are exceptions.

By Emily Doskow, Attorney

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When you’re negotiating with your spouse or arguing in court about the level, type, and duration of spousal support, tax issues should never be far from your mind. This article explains the basic rules and major concerns for each spouse—but it’s possible that you’ll need some assistance in making decisions about support, as discussed below.

Basic Rules

Spousal support must be reported as taxable income by the recipient and can be deducted by the paying spouse, unless you agree otherwise. (This is the opposite of child support, which is neither taxable nor deductible.) In general, a higher earner will be looking for deductions, and a lower earner will not have to pay much tax on the amount of support received, so the taxable/deductible structure works fine. Any increase in tax for the recipient can often be offset by the significant tax savings for the higher earner, who can make up the difference to the recipient either with an additional payment or in another way. For example, the paying spouse might agree to simply pay the recipient spouse’s tax liability.

You can, however, make spousal support payments nontaxable and nondeductible as long as it goes both ways and you both agree (you’ll state as much in your marital settlement agreement). You might do this if the spouse receiving support is in a higher tax bracket than the paying spouse (this would be unusual, but might happen if the recipient spouse is receiving reimbursement support and has significant assets), or if the paying spouse doesn’t need the tax deduction and the recipient spouse doesn’t want to report the income.

If you do decide to make spousal support nontaxable and nondeductible, the recipient spouse should simply not report the income on that year’s tax return.

If You Receive Support

If you receive spousal support, you need to plan for the potential tax impact of the income. Unlike an employer, your former spouse won’t withhold any taxes from your support check. If you’re staying at home to care for young children and have no other source of income, paying estimated tax each quarter (to both the IRS and your state) may be a good way to avoid taking a tax hit at the end of the year. If you have a paying job, then increasing withholding from your paycheck is another way to offset the potential impact of support payments.

You may need to spend some time looking at different payment scenarios and how they play out tax-wise, by calculating what your tax liability would be if you received a certain amount of support and what benefit your spouse would receive from the tax deduction. You can check your potential tax liability at the IRS website at www.irs.gov, where tax tables are available. Or you can ask a tax professional to help you look at the tax impact of different amounts of support, so that you can figure out the optimal amount—that is, the amount that puts the most money in each person’s pocket after taxes are taken into account.

The IRS offers a number of publications that may help you as you negotiate support. There’s a chapter specifically on alimony, and IRS Publication 505, Tax Withholding and Estimated Taxes, is one, and IRS Publication 504, Divorced or Separated Individuals, is another. Both are available at www.irs.gov or by phone request at 800-829-3676.

Payments made to third parties on your behalf are treated just as though they were paid to you—you have to include them in your taxable income. So, for example, if your former spouse pays the mortgage directly (and this is provided for in your marital settlement agreement or court order) you must report that amount as income.

If You’re Paying Support

You can deduct spousal support payments on your income tax return, but not child support or property distributions. So the IRS scrutinizes support paid in the first three years to make sure that you didn’t disguise property distribution or other postdivorce obligations, like attorneys’ fees, as deductible support. If the divorce agreement calls for higher payments in the first postdivorce years and lower payments later, and the IRS believes the early payments are in lieu of property division or other nonsupport items, it can go back and “recapture” retroactive taxes.

If your agreement calls for a reduction of $15,000 or more in spousal support during year two or year three after your divorce, you may find Uncle Sam knocking at your door to discuss recapture.

When you negotiate your spousal support agreement, it’s important to make sure that you don’t tie the termination of spousal support to anything related to your kids—for example, the time they leave home or when they finish college. If you do, the IRS might consider the payments child support rather than spousal support—and child support payments aren’t tax deductible.

If you’re making payments to a third party instead of to your spouse, but you’ve agreed (in your settlement agreement) that the payments constitute spousal support, for tax purposes those payments are treated as if they were paid to the recipient. In other words, you can deduct them (at least in part) as support payments. Certain payments are not fully deductible, though, including payments related to a jointly owned home. If you and your spouse continue to own the home together and you pay all the expenses, you are allowed to deduct only half of the mortgage payment as spousal support. But you can take half of the mortgage interest deduction as well.

More Information

There are a lot of tax issues and financial considerations to be aware of during a divorce. Make sure you take the time to understand these issues. Please see the Divorce & Taxes section of our website.

Excerpted from Nolo’s Essential Guide to Divorce, by Emily Doskow. 

2016_12_22 COURT OF APPREALS

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KENTUCKY COURT OF APPEALS CASES –

LawReader Synopsis For: DECEMBER 22, 2016

27 Cases –  2 to be Published

Search LawReader Library of Past Decisions:

Edited by Judge Stan Billingsley (Ret.)

DECISIONS W/SYNOPSIS – Click on blue case number to read full text.

Court of Appeals Case Info / Oral Arguments Calendar / Court of Appeals Minutes

Opinions shall not be cited until all steps in the appellate process have been exhausted and they become final.

Kentucky Court of Appeals Judges – Current Directory

CIVIL CASES & CRIMINAL CASES

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2014-CA-000298

NOT TO BE PUBLISHED

EDITH TRAVIS APPELLANT

V.

DAVID TRAVIS APPELLEE

APPEALS FROM BOYD CIRCUIT COURT

HONORABLE GEORGE W. DAVIS, III, JUDGE

ACTION NO. 10-CI-00183

OPINION AFFIRMING

** ** ** ** **

BEFORE: CLAYTON, NICKELL AND VANMETER, JUDGES.

NICKELL, JUDGE: These consolidated appeals challenge the Boyd Circuit Court’s modification of the division of marital property previously established in the divorce decree terminating the marriage of Edith Travis and David Travis, and the amount of the supersedes bond set in the matter. Following a careful review of the record, the briefs and the law, we affirm.

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2014-CA-000381

NOT TO BE PUBLISHED

JOHNNIE R. DOUGLAS APPELLANT

V.

COMMONWEALTH OF KENTUCKY APPELLEE

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE OLU A. STEVENS, JUDGE

ACTION NO. 05-CR-002357

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION VACATING

AND REMANDING

** ** ** ** **

BEFORE: CLAYTON, COMBS, AND MAZE, JUDGES.

COMBS, JUDGE: Appellant, Johnnie Ray Douglas, appeals from the denial of his RCr 1 11.42 motion alleging ineffective assistance of counsel based on failure to conduct a proper voir dire and for failure to seek post-trial relief after a juror 1 Kentucky Rules of Criminal Procedure. revealed that he had been a victim of a prior crime committed by Douglas. We vacate and remand for a new trial.

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2014-CA-001712

NOT TO BE PUBLISHED

TRISHA ANN WILLIAMS APPELLANT

V.

RANDY CLINE AND KEITH MCCORMICK APPELLEES

APPEAL FROM ROWAN CIRCUIT COURT

HONORABLE WILLIAM EVANS LANE, JUDGE

ACTION NO. 10-CI-90269

OPINION AFFIRMING

** ** ** ** **

BEFORE: JONES, STUMBO, AND VANMETER, JUDGES.

JONES, JUDGE: The Appellant, Trisha Ann Williams (“Williams”), appeals from the August 26, 2014, order of the Rowan Circuit Court dismissing her claims of negligence and malicious prosecution against Appellees, Randy Cline and Keith McCormick. After a careful review of the record and applicable law, we affirm.

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2014-CA-001915

NOT TO BE PUBLISHED

RANDALL S. WALDMAN APPELLANT

APPEAL FROM GRAYSON CIRCUIT COURT

HONORABLE ROBERT A. MILLER, JUDGE

ACTION NO. 11-CI-00079

PNC BANK, NATIONAL ASSOCIATION APPELLEE

 AND NO. 2014-CA-001916-MR LAUREN WALDMAN F/K/A LAUREN SYKES AND LSW LTD, LLC, AND LSW, LTD., LLC APPELLANTS v.

APPEAL FROM GRAYSON CIRCUIT COURT HONORABLE ROBERT A. MILLER, JUDGE ACTION NO. 11-CI-00079

PNC BANK, NATIONAL ASSOCIATION APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: CLAYTON, STUMBO, AND VANMETER, JUDGES.

CLAYTON, JUDGE: This matter involves the appeals of co-defendants, Randall S. Waldman and Lauren Waldman, who are father and daughter. They appeal separately the Grayson Circuit Court grant of summary judgment in favor of PNC Bank, National Association (hereinafter “PNC”), successor to National City Bank (hereinafter “NCB”).

The Appellants contest the trial court’s decision that the transfer of real property by Randall Waldman, the Trustee, from the Randall S. Waldman Trust to RSW LTD III, LLC, and the subsequent transfer from RSW LTD III, LLC to LSW, LTD, LLC, of which Lauren Waldman was the sole Trustee, may be set aside. Pertinent to this litigation is a prior case in Bullitt Circuit Court wherein NCB was awarded a judgment against Randall, Integrity Manufacturing, and Integrity Tools, based on a promissory note and guaranty.

Because the transfer was set aside, this real property may be used to satisfy the Bullitt Circuit Court judgment against Randall and Lauren.

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2014-CA-002094

TO BE PUBLISHED

DWIGHT EDWARD FISCHER APPELLANT

V,

COMMONWEALTH OF KENTUCKY APPELLEE

APPEAL FROM FAYETTE CIRCUIT COURT

HONORABLE ERNESTO SCORSONE, JUDGE

ACTION NO. 13-CR-01063

OPINION AFFIRMING

** ** ** ** **

BEFORE: MAZE, TAYLOR AND VANMETER, JUDGES.

VANMETER, JUDGE: Dwight Edward Fischer appeals the Fayette Circuit Court’s denial of his motion to suppress statements made to Lexington police detectives outside their jurisdiction during the course of a knock and talk.

For the following reasons, we affirm

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2015-CA-000459

NOT TO BE PUBLISHED

ROCKY WICKER APPELLANT

V.

COMMONWEALTH OF KENTUCKY APPELLEE

APPEAL FROM KNOTT CIRCUIT COURT

HONORABLE KIMBERLY C. CHILDERS, JUDGE

ACTION NO. 13-CR-00082

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: ACREE, CLAYTON, AND J. LAMBERT, JUDGES.

LAMBERT, J., JUDGE: Rocky Wicker appeals from the Knott Circuit Court’s judgment and sentence following a jury trial, entered January 23, 2015. Wicker was convicted of attempted murder, attempted manslaughter, and two counts of first-degree wanton endangerment, and he was sentenced to seventeen-years’ imprisonment.

 We affirm the circuit court’s judgment.

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2015-CA-000483

NOT TO BE PUBLISHED

ESTATE OF FENIMORE H. CALLAWAY and ANN THOMAS, EXECUTRIX APPELLANTS

APPEAL FROM FAYETTE CIRCUIT COURT v. HONORABLE JAMES D. ISHMAEL, JR., JUDGE ACTION NO. 14-CI-01144

ANTHONY FRANCIS APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: ACREE, CLAYTON, AND LAMBERT, J., JUDGES.

CLAYTON, JUDGE: Ann Thomas brings this pro se appeal from a Fayette Circuit Court Order granting summary judgment against her, individually and as executrix of the Estate of Fenimore H. Callaway, and against the estate itself.

The summary judgment granted the relief Anthony Francis sought in his complaint to compel enforcement of a real estate contract entered into between Francis and -1- Callaway before Callaway’s death. The circuit court found no genuine issue of material fact to support either of Thomas’ defenses that Callaway lacked capacity to enter into the contract of sale or that Callaway was the victim of undue influence. We agree with circuit court and, therefore, affirm.

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2015-CA-000513

TO BE PUBLISHED

NICOLE PETERSON, ADMINISTRATRIX OF THE ESTATE OF PEGGY MCWHORTER, DECEASED; AND WANDA RUSSELL, GUARDIAN AND NEXT FRIEND OF D.M.M. AND E.H.M., MINOR CHILDREN OF PEGGY GAIL MCWHORTER APPELLANTS

V.

BOBBY DUNBAR; BETHANY FOLEY; MICHAEL CLARK; CHARLES GRIDER; BRENDA HUDSON; DENNIS GRAYUM; DEBBIE GRAYUM; SCOTT HADLEY; JANICE SIMPSON; AND KEVIN BOOTH APPELLEES

APPEAL FROM RUSSELL CIRCUIT COURT

HONORABLE VERNON MINIARD JR., JUDGE

ACTION NO. 12-CI-00191

 

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2015-CA-000693

NOT TO BE PUBLISHED

JOSHUA PEACHER APPELLANT

V,

COMMONWEALTH OF KENTUCKY APPELLEE

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE ACTION NOS. 08-CR-002598 & 08-CR-0002598-001

OPINION AFFIRMING

** ** ** ** **

BEFORE: J. LAMBERT, TAYLOR AND THOMPSON, JUDGES.

THOMPSON, JUDGE: Joshua Peacher appeals from an order of the Jefferson Circuit Court denying his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion based on ineffective assistance of counsel without conducting an evidentiary hearing. We affirm.

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2015-CA-000705

NOT TO BE PUBLISHED

DEANTON GREENWADE APPELLANT

V,

COMMONWEALTH OF KENTUCKY APPELLEE

APPEAL FROM CHRISTIAN CIRCUIT COURT

 HONORABLE JOHN L. ATKINS, JUDGE

ACTION NOS. 14-CR-00432

AND 14-CR-00578

OPINION VACATING AND REMANDING

** ** ** ** **

BEFORE: KRAMER, CHIEF JUDGE; D. LAMBERT AND J. LAMBERT, JUDGES.

KRAMER, JUDGE: Deanton Greenwade appeals the Christian Circuit Court’s judgment convicting him of second-degree burglary and of being a first-degree persistent felony offender (PFO-1st).

After a careful review of the record, we vacate Greenwade’s conviction and remand the case for a new trial because a violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) occurred. We address Greenwade’s other issues in the event that they may arise again in the circuit court upon remand.

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2015-CA-000902

NOT TO BE PUBLISHED

JAMES DANIELS APPELLANT

V.

COMMONWEALTH OF KENTUCKY APPELLEE

PPEALS FROM BELL CIRCUIT COURT

HON. ROBERT V. COSTANZO, JUDGE

INDICTMENT NOS. 13-CR-00209 &

14-CR-00047

OPINION AFFIRMING IN PART,

REVERSING IN PART,

AND REMANDING

** ** ** ** **

BEFORE: KRAMER, CHIEF JUDGE; ACREE AND D. LAMBERT, JUDGES.

KRAMER, CHIEF JUDGE: James Daniels has appealed from the Bell Circuit Court’s Judgment and Sentence Pursuant to Jury Verdict entered June 3, 2015.

 This court affirms the circuit court in part, reverses in part, and remands.

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2015-CA-000938

 

NOT TO BE PUBLISHED

ROBERT WEBB APPELLANT

APPEAL FROM BOURBON CIRCUIT COURT v. HONORABLE ROBERT G. JOHNSON, JUDGE ACTION NO. 15-CI-00061

 DAN CUMMINS CHEVROLET-BUICK, INC. APPELLEE

OPINION AFFIRMING ** ** ** ** ** BEFORE: ACREE, COMBS, AND JONES, JUDGES. JONES, JUDGE:

Appellant, Robert Webb, appeals from the Bourbon Circuit Court’s order granting the motion filed by Appellee, Dan Cummins Chevrolet Buick, for dismissal and summary judgment. For the reasons set forth below, we AFFIRM

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2015-CA-000971

NOT TO BE PUBLISHED

JOHNNY STINSON BRYANT APPELLANT

V.

MARY LOU BRYANT APPELLEE

APPEAL FROM FRANKLIN CIRCUIT COURT

HONORABLE SQUIRE N. WILLIAMS, JUDGE

ACTION NO. 13-CI-00831

OPINION REVERSING

AND REMANDING

** ** ** ** **

BEFORE: KRAMER, CHIEF JUDGE; TAYLOR AND VANMETER, JUDGES. VANMETER, JUDGE:

Johnny Stinson Bryant appeals an order from the Franklin Family Court entered on April 14, 2015 classifying a home given to him by his employer as a marital employment benefit.

 For the following reasons, we reverse and remand

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2015-CA-001139

NOT TO BE PUBLISHED

WILLIAM STOKES APPELLANT

V.

COMMONWEALTH OF KENTUCKY APPELLEE

 APPEAL FROM CHRISTIAN CIRCUIT COURT,

HONORABLE JOHN L. ATKINS, JUDGE ACTION NO. 14-CR-00518

OPINION AFFIRMING

 ** ** ** ** **

BEFORE: ACREE, JONES, AND VANMETER, JUDGES.

VANMETER, JUDGE: William Stokes appeals from the Christian Circuit Court’s Order Denying Motion to Suppress, entered March 12, 2015.

 We affirm the circuit court.

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2015-CA-001191

NOT TO BE PUBLISHED

MICHAEL W. ASHER APPELLANT

V,

COMMONWEALTH OF KENTUCKY APPELLEE

APPEAL FROM GRANT CIRCUIT COURT

HONORABLE REBECCA LESLIE KNIGHT, JUDGE

ACTION NO. 14-CR-00057

OPINION AFFIRMING

** ** ** ** **

BEFORE: KRAMER, CHIEF JUDGE; D. LAMBERT AND J. LAMBERT, JUDGES.

KRAMER, CHIEF JUDGE: Michael W. Asher appeals from a final judgment of the Grant Circuit Court entered after his motion to withdraw his guilty plea was denied.

 According to the police report in the record, Asher was under the influence of drugs when the vehicle he was driving struck another vehicle.

The three occupants of the other vehicle were seriously injured; they included a three year-old child who suffered a spinal cord injury that left him a paraplegic.

Asher was indicted on three counts of first-degree assault; one count of first-degree criminal mischief; one count of operating a motor vehicle under the influence, second offense within a five-year period, aggravating circumstance; one count of operating a motor vehicle while license suspended; and for being a first-degree persistent felony offender.

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2015-CA-001267

NOT TO BE PUBLISHED

ERNEST MAY APPELLANT

V,

LUCY MAY APPELLEE

APPEAL FROM CLAY CIRCUIT COURT

 HONORABLE GENE CLARK, JUDGE

ACTION NO. 13-CI-00227

OPINION AFFIRMING

** ** ** ** **

BEFORE: ACREE, CLAYTON, AND J. LAMBERT, JUDGES.

CLAYTON, JUDGE: Ernest May appeals the Clay Circuit Court’s marital dissolution decree dividing the marital property of he and his former wife, Lucy May. The Mays married more than four decades ago. They separated in 2013 and have not cohabitated since. Their marriage was dissolved on April 16, 2014, when the Clay Circuit Court entered a bifurcated decree of dissolution of marriage. A hearing was then set to assign the parties their non-marital property and divide the marital property.

 At the hearing, the parties presented an Agreed Stipulation of Values for many items of real and personal property, including the three tracts of land the parties owned and the two mobile homes that resided on the same.

The parties also presented evidence that they each had acquired non-marital property during the marriage. On appeal, neither party disputes the non-marital assignments.

It is sufficient to note that Ernest’s non-marital assignment came from a disability settlement from the Veterans’ Administration and Lucy’s non-marital funds came from life insurance proceeds she received and later used to purchase the mobile home in which the parties lived.

 Lucy was thus assigned the mobile home as nonmarital property. The parties then informed the trial court which items of personal and real property they wished to be awarded.

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2015-CA-001282

NOT TO BE PUBLISHED

JANICE TAYLOR APPELLANT

V.

KENTUCKY RETIREMENT SYSTEMS; and BOARD OF TRUSTEES OF KENTUCKY RETIREMENT SYSTEMS APPELLEES

APPEAL FROM FRANKLIN CIRCUIT COURT

HONORABLE PHILLIP J. SHEPHERD, JUDGE

ACTION NO. 14-CI-00504

OPINION AFFIRMING

** ** ** ** **

BEFORE: KRAMER, CHIEF JUDGE; D. LAMBERT AND J. LAMBERT, JUDGES.

KRAMER, CHIEF JUDGE: Janice Taylor is 52 years of age and accumulated 104 months of service credit in the Kentucky Employee Retirement Systems (KERS) working for the Cabinet for Health and Family Services in the position of Citizen Assistance Specialist II, a job which involved sitting during the entire 7.5 hour work day.

 For the purpose of disability retirement benefits, her last date of paid employment was July 29, 2010.1 Taylor has several pre-existing conditions in the region of her lower back which have intermittently disabled her from work prior to July 29, 2010.

In her application for disability retirement benefits, filed February 9, 2011, Taylor claimed she was unable to continue working because she was afflicted with a new condition, coccydynia, which is characterized by intense pain in the coccyx (tailbone) when sitting. The Board of Trustees of the KERS (Board) ultimately denied Taylor’s application because it was unpersuaded coccydynia rendered Taylor disabled since her last date of paid employment. See Kentucky Revised Statute (KRS) 61.600. Thereafter, Taylor appealed the Board’s determination by filing an original action in Franklin Circuit Court. The issue presented in this appeal is whether the circuit court erred in affirming the final order of the Board. Finding no error, we likewise affirm.

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2015-CA-001309

NOT TO BE PUBLISHED

DOUGLAS RANK APPELLANT

BOBBY MILLER, M.D. APPELLEE

APPEAL FROM KENTON CIRCUIT COURT

HONORABLE GREGORY M. BARTLETT, JUDGE

ACTION NO. 14-CI-00858

OPINION AFFIRMING

** ** ** ** **

BEFORE: KRAMER, CHIEF JUDGE; D. LAMBERT AND J. LAMBERT, JUDGES.

KRAMER, CHIEF JUDGE: Douglas Rank, pro se, appeals the decision of the Kenton Circuit Court to summarily dismiss his breach of contract and fraud claims against appellee, Bobby Miller.

Upon review, we affirm.

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2015-CA-001342

NOT TO BE PUBLISHED

MARY SPANNKNEBEL APPELLANT

V

EVAN SPANNKNEBEL APPELLEE

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE TARA HAGERTY, JUDGE

ACTION NO. 13-CI-502933

 

OPINION VACATING AND REMANDING

** ** ** ** **

BEFORE: COMBS, J. LAMBERT AND VANMETER, JUDGES. VANMETER, JUDGE:

 Mary Virginia Spannknebel (Mary) appeals an order from the Jefferson Family Court entered June 18, 2015 with respect to the division of marital property and arrears for maintenance. For the following reasons, we vacate and remand.

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2015-CA-001660

NOT TO BE PUBLISHED

 BRAD CALLINAN APPELLANT

V.

COMMONWEALTH OF KENTUCKY APPELLEE

APPEAL FROM CASEY CIRCUIT COURT

HONORABLE JUDY D. VANCE, JUDGE

ACTION NO. 15-CR-00006

OPINION AFFIRMING IN PART AND VACATING IN PART ** ** ** ** **

BEFORE: ACREE, JONES AND VANMETER, JUDGES.

VANMETER, JUDGE: Brad Callinan appeals from the Casey Circuit Court’s Judgment and Sentence on Jury Verdict, entered October 30, 2015.

We affirm the circuit court as to its written judgment and sentence, but vacate the order to show cause for non-payment entered by the circuit court on October 12, 2015.

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2015-CA-001762

 

NOT TO BE PUBLISHED

 

TOYOTA MOTOR MANUFACTURING, KENTUCKY, INC. APPELLANT

 

PETITION FOR REVIEW OF A DECISION v. OF THE WORKERS’ COMPENSATION BOARD

 

ACTION NO. WC-06-94736

 

KATHY PRICHARD; HON. WILLIAM J. RUDLOFF, ALJ; AND KENTUCKY WORKERS’ COMPENSATION BOARD APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: D. LAMBERT, MAZE, AND VANMETER, JUDGES.

MAZE, JUDGE: Toyota Motor Manufacturing, Kentucky, Inc. (hereinafter “Toyota”) petitions for review of a ruling of the Kentucky Workers’ Compensation Board (“the Board”).

 Toyota argues that the Board erred in ruling that Appellee, Kathy Prichard, was entitled to reopen a 2011 award despite requesting such relief more than four years after her original injury and claim

. Toyota also argues that, notwithstanding the timeliness of her motion, Prichard failed to establish a worsening of her condition necessary to reopen her claim

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2015-CA-001889

 

 

NOT TO BE PUBLISHED

 

BLUEGRASS TAX LIEN BUREAU, LLC APPELLANT

V.

AND 84 LUMBER COMPANY APPELLEES

 

APPEAL FROM MONTGOMERY CIRCUIT COURT

 

HONORABLE WILLIAM EVANS LANE, JUDGE

 

ACTION NO. 13-CI-90248

 

WILLIAM P. GRISE, B&P APARTMENTS, INC., COMMUNITY TRUST BANK, INC.,

PEOPLES EXCHANGE BANK, MONTGOMERY COUNTY KENTUCKY,

CITY OF MOUNT STERLING, KENTUCKY,

OPINION REVERSING AND REMANDING ** ** ** ** ** BEFORE: ACREE, CLAYTON, AND J. LAMBERT, JUDGES. CLAYTON, JUDGE:

This case presents a nuanced issue regarding a third-party purchaser of a certificate of delinquent ad valorem taxes. Before we lay out the issue before us, a brief chronological history of the instant facts is necessary. B&P Apartments, Inc. (“B&P”) owned numerous commercial properties, including real property located at 128 West Main Street, Mt. Sterling, Kentucky (“128 Property”).

 B&P appears to have had difficulties paying its ad valorem taxes, and, pursuant to Kentucky Revised Statutes (“KRS”) 134.452, Montgomery County sold some of the certificates of delinquency to third parties.

 In 2009, one of those purchasers filed a civil action in Montgomery Circuit Court (the “First Action”) to enforce the ad valorem taxes against the 128 Property and other properties owned by B&P. It does not appear any lis pendens was filed in the First Action. Montgomery County, a named party to the First Action, filed an Answer in that case asserting delinquent property taxes for years 2007 and 2008.

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2016-CA-000034

NOT TO BE PUBLISHED

JEFFREY MAINKA APPELLANT

V.

DANA ROBINSON APPELLEE

APPEAL FROM JEFFERSON CIRCUIT COURT FAMILY COURT DIVISION

HONORABLE DONNA DELAHANTY, JUDGE

ACTION NOS. 12-D-500252-003

OPINION AFFIRMING

** ** ** ** **

BEFORE: ACREE, DIXON, AND TAYLOR, JUDGES.

TAYLOR, JUDGE: Jeffrey Mainka brings this appeal from a December 14, 2015, Domestic Violence Order (DVO) of the Jefferson Circuit Court, Family Court Division. We affirm

. Mainka and Dana Robinson were previously married and have two children, Andrew and Sophie.

The parties separated in 2011 and the marriage was dissolved by the Jefferson Circuit Court, Family Court Division, on May 6, 2013. Since the parties’ separation, they engaged in extensive litigation contesting virtually all issues arising in the divorce, and continuing the same after entry of the decree.

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2016-CA-000415

NOT TO BE PUBLISHED

B.A., JR. APPELLANT

V.

CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY AND B.A., III, A CHILD APPELLEES

APPEAL FROM GREENUP CIRCUIT COURT

HONORABLE JEFFREY L. PRESTON, JUDGE

ACTION NO. 15-AD-00036

CABINET FOR HEALTH AND FAMILY SERVICES,

AAPPEAL FROM GREENUP CIRCUIT COURT

HONORABLE JEFFREY L. PRESTON, JUDGE

ACTION NO. 15-AD-00037

OPINION AFFIRMING ** ** ** ** **

BEFORE: JONES, D. LAMBERT, AND TAYLOR, JUDGES.

JONES, JUDGE: This consolidated appeal arises from two orders entered by the Greenup Circuit Court terminating the parental rights of E.A. (“Mother”) and Appellant, B.A. (“Father”), to their two minor sons (the “Children).

On appeal, Father contends that the circuit court erred on two counts: (1) it failed to consider all of the factors set out in KRS 1 625.090(3) to determine the Children’s best interests; and (2) it abused its discretion by terminating Father’s parental rights despite the fact that he proved by a preponderance of the evidence that the Children would not continue to be abused or neglected if returned to his care. 2

After a careful review of the record, we AFFIRM the circuit court’s orders

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2016-CA-000532

NOT TO BE PUBLISHED

MARCO GARCIA APPELLANT

V.

KARLA BARAHONA APPELLEE

APPEAL FROM JEFFERSON FAMILY COURT

HONORABLE ANGELA J. JOHNSON, JUDGE

ACTION NOS. 16-D-500470 AND 16-D-500470-001

 

OPINION AFFIRMING

** ** ** ** **

BEFORE: ACREE, J. LAMBERT AND THOMPSON, JUDGES.

THOMPSON, JUDGE: Marco Garcia appeals from the Jefferson Family Court’s domestic violence order (DVO) restricting him from contact with Karla Barahona. Garcia and Barahona were never married but formerly lived together. On February 22, 2016, Barahona filed a petition for an emergency protective order (EPO) against Garcia based on the events that occurred at the Coconut Beach night club,

 

A family court may properly issue a DVO if it finds by a preponderance of the evidence that an act or acts of domestic violence and abuse have occurred and may occur again. Guenther v. Guenther, 379 S.W.3d 796, 802 (Ky.App. 2012).

This includes physical injury, assault, or the infliction of fear of imminent physical injury or assault between members of an unmarried couple who have formerly lived together. Kentucky Revised Statutes (KRS) 403.720(1), (5).

“We bear in mind that in reviewing the decision of a trial court the test is not whether we would have decided it differently, but whether the findings of the trial court were clearly erroneous or that it abused its discretion.” Abdur-Rahman v. Peterson, 338 S.W.3d 823, 826 (Ky.App. 2011).

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2016-CA-000666

 

NOT TO BE PUBLISHED

D. F. APPELLANT APPEAL

V.

CABINET FOR HEALTH & FAMILY SERVICES, COMMONWEALTH OF KENTUCKY AND S.L.D., A CHILD APPELLEES

FROM JEFFERSON CIRCUIT COURT

HONORABLE DEANA MCDONALD, JUDGE

ACTION NO. 15-AD-500486

OPINION AFFIRMING

** ** ** ** **

BEFORE: ACREE, J. LAMBERT, AND THOMPSON, JUDGES.

LAMBERT, J., JUDGE: D. F. (the Mother) has appealed from an order of the Jefferson Circuit Court terminating parental rights to her biological daughter, S.L.D. (the Child).

We find neither error nor abuse of discretion, and we affirm

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2016-CA-001032

NOT TO BE PUBLISHED

CARING PEOPLE SERVICES, LLC APPELLANT

APPEAL FROM WORKERS’ COMPENSATION BOARD

ACTION NO. WC-14-78061

MARY GRAY,

HON. GRANT S. ROARK, ADMINISTRATIVE LAW JUDGE;

AND WORKERS’ COMPENSATION BOARD APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: ACREE, JONES, AND VANMETER, JUDGES.

JONES, JUDGE:  This appeal arises out of an opinion issued by Kentucky’s Workers’ Compensation Board (“Board”) affirming an award of benefits to the Appellee, Mary Gray.

 The Appellant, Caring People Service, LLC (“Caring People”), contends that the Board erred because Gray’s injury occurred while she was in her personal vehicle during her commute from her home to her regular worksite, and therefore, is not work-related.

Having reviewed the record in conjunction with the applicable legal authorities, we affirm.

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Unpublished Opinions

This web site contains both published and unpublished opinions of the Kentucky Supreme Court and Kentucky Court of Appeals. First, opinions that are labeled "NOT TO BE PUBLISHED" shall never be cited or used as authority in any other case in any court of this state. CR 76.28(4)(c). This is true even after the unpublished opinions become final. Secondly, although opinions labeled "TO BE PUBLISHED" may be cited as authority in any court of the Commonwealth of Kentucky, the opinions shall not be cited until all steps in the appellate process have been exhausted and they become final. As of the date Court of Appeals opinions were placed on the web site, none were final.

 

Court Orders:

 

EACH WEEK THE COURT ISSUES IT’S ORDERS GRANTING AND DENYING NUMEROUS MOTIONS

 

SEE THESE ORDERS AT:  CT. OF APPEALS MINUTES     SUPREME COURT MINUTES

 

END OF PAGE

WORK ALLOWED BY DISBARRED LAWYER

 ABA Model Standards and Ethics Opinions.

Work permitted by disbarred attorney….states differ…

Under Rule 27 of the ABA Model Rules for Lawyer Disciplinary Enforcement, a lawyer who is disbarred or suspended from the practice of law must within 10 days of the date when discipline was imposed send a notice to all clients that are currently being represented, all opposing counsel and any co-counsel notifying them that the lawyer is no longer able to act as a lawyer in the matter. 

The rule states that the order of disbarment or suspension is effective 15 days from the date of the order, unless the court directs otherwise. During this interim period, the lawyer must not take on any new clients and must remove any indicia of his status as a lawyer, law clerk or legal assistant. Subpart 7 of the rule provides further that “Upon the effective date of the order, the respondent shall not maintain a presence or occupy an office where the practice of law is conducted.”

Note that the state rules of lawyer disciplinary enforcement can vary on this issue. See, e.g., Rule 217(j) of the Pennsylvania Rules of Lawyer Disciplinary Enforcement that goes into great detail describing what activities a “formerly admitted lawyer” can engage in. The rule permits a lawyer to work in certain law-related capacities so long as he is adequately supervised by a licensed lawyer and otherwise complies with the terms of the rule. The full text of this rule is included at the end of this article. See also Subpart (h) of Rule 2.16 Disbarred or Suspended Attorneys of the Disciplinary Rules of the Hawaii Supreme Court that states as follows:

In the event the disbarred or suspended attorney should maintain a presence in an office where the practice of law is conducted, the disbarred or suspended attorney shall not have any contact with the clients of the office either in person, by telephone, or in writing, or have any contact with persons who have legal dealings with the office either in person, by telephone, or in writing.

In 1979, the ABA Standing Committee on Ethics and Professional Responsibility issued Informal Opinion 1434 Employment of Disbarred Lawyer in Nonlegal Capacity, which stated that if the contemplated activity of the disbarred or suspended lawyer would constitute the practice of law under applicable state law, then the lawyer employing the disbarred lawyer could be in violation of DR 3-101 Aiding Unauthorized Practice of Law of the ABA Model Code of Professional Responsibility. (Note: The Model Code was withdrawn in 1983 and is no longer official ABA policy.) The Model Rule corollary to DR-3-101 is Rule 5.5 Unauthorized Practice of Law; Multijurisdictional Practice of LawInformal Opinion 1434 also cited to unpublished Informal Opinion 7 of the ABA Committee on Professional Ethics (the predecessor to the current ABA Standing Committee on Ethics and Professional Responsibility) that states as follows:

“An attorney should not employ a disbarred lawyer, even to do only office work and seeing no clients, because of the practical difficulty of confining his activities to an area which does not include practice of law, and because such employment would show disrespect to the courts.”

II. State and local bar ethics opinions. There have been several state and local bar association ethics opinions on the topic of the types of law-related activities a lawyer can engage in after having been disbarred or suspended. Some of these opinions state that the disciplined lawyer may be employed as a paralegal or legal assistant so long as the employing lawyer is careful to avoid assisting the paralegal in activities that would constitute the unauthorized practice of law and does not share legal fees. The question of whether certain conduct should be considered to be the practice of law is a legal, factual matter that is traditionally outside of the jurisdiction of ethics committees. When confronted with such questions, most committees will defer to applicable state law.    

Some bar opinions limit their analysis to the types of activities that suspended lawyers can engage in. See North Dakota Opinion 01-02 (2001) (A suspended lawyer may act as a paralegal, legal assistant or other type of support staff to a licensed lawyer if the arrangement complies with the controlling case law and with Rule 5.3); Vermont Opinion 97-11 (1998) (A lawyer may employ as a paralegal or an investigator, another lawyer who has been suspended from practice); and Iowa Opinion 99-16 (Suspended lawyers may perform paralegal work).

Other opinions address whether a disbarred lawyer may perform law-related services and state that while they can work in law firms, the types of activities they can engage in is something less than what a paralegal can traditionally handle and is limited to matters that are administrative and ministerial in nature. See Oklahoma Opinion 319 (2002). (Disbarred or suspended lawyers may work as paralegals, but the lawyers who employ them must be careful to avoid assisting in the unauthorized practice of law.) The Oklahoma Committee stated:

The employment of a disbarred lawyer is fraught with ethical peril even with respect to activities that nonlawyers may properly engage in. 1. As a general rule, a suspended or disbarred lawyer employed by a law firm is subject to even greater restrictions than those employees without legal training. 2. The Oklahoma Supreme Court has adopted the position of State v. Schumacher, 519 P.2d 1116 (Kan. 1974), wherein the court decreed that, “some actions which may be taken with impunity by persons who have never been admitted to the practice of law, will be found to be in contempt if undertaken by a suspended or disbarred attorney.” State ex rel. Oklahoma Bar Ass’n v. Samara, 1986 OK 55, ¶ 11, n. 4, 725 P.2d 306.

… [T]he Oklahoma Supreme Court has determined that suspended or disbarred attorneys, and nonlawyers in general, who perform more than clerical work in association with other licensed attorneys are engaging in the unauthorized practice of law. Samara, 1986 OK 55 at ¶ 9. Activities that constitute the unauthorized practice of law if performed by suspended or disbarred attorneys include assisting lay-persons in preparing pleadings; giving legal advice to lay-persons; writing contracts or selecting and filling out proper deed forms for lay-persons; participating in settlement negotiations; and participating in pre-trial activities such as taking depositions.

Philadelphia Bar Opinion 2005-10 (2005) addressed the types of activities a suspended or “formerly admitted” lawyer may partake both inside and outside of the law firm context. The opinion stated that a suspended lawyer may engage in public speaking, writing and teaching so long as he discloses that he is not admitted to practice. The opinion also stated that the lawyer could act as a paralegal so long as the activities are ministerial, clerical and preparatory in compliance with Rule 217(j) of the Pennsylvania Rules of Lawyer Disciplinary Enforcement.  Philadelphia Opinion 2007-03 (2007) states that a suspended lawyer may work at his old law firm so long as he confines his work to purely administrative tasks.

KENTUCKY OPINION E-255 (1981) provided the following provisos for the types of activities an “ex-lawyer” can engage in:

General Provisos
1. The individual may do anything a layperson could do.

2. The individual may perform such work which is of a preparatory or ministerial nature.

Specific Provisos
1. The individual may not have any contact whatsoever with a client of a lawyer.

2. The individual is not a Paralegal within SCR 3.700.

3. The individual may not have an office, or place, in the lawyer’s facility.

4. THE INDIVIDUAL MAY PERFORM ANY DRAFTING ACTS, AS LONG AS THEY ARE SUBMITTED IN DRAFT FORM ONLY TO THE RESPONSIBLE LAWYER FOR APPROVAL.

5. The individual may perform clerical aspects of a probate matter.

6. The individual may do an abstract title examination.

7. THE INDIVIDUAL MAY PROVIDE LEGAL RESEARCH TO A LAWYER.

See also North Carolina Opinion 98-7 (1998) (Disbarred lawyer may be employed as paralegal, but may not work at the firm where he was employed during the period of misconduct. The employing firm also may not accept clients of the former lawyer’s firm that were clients of the disbarred lawyer during the same period of misconduct.); Oregon Opinion 2005-24 (2005) (A lawyer may employ suspended or disbarred lawyers so long as they do not practice law and do not receive a share of legal fees); and Kentucky opinions E-256 (Lawyer may not act as paralegal) (1981) and E-336 (1989) (Lawyer may act as paralegal after period of suspension has run).

Other state bar opinions prohibit lawyers from hiring a disbarred or suspended lawyers to engage in any activity that is related to the practice of law. See, e.g., New York State Opinion 1998-1 (12/21/98) (Attorney may not aid nonlawyer, including disbarred or suspended attorney, in unauthorized practice of law. It is improper for lawyer or law firm to employ disbarred or suspended attorney in any capacity related to practice of law. What acts constitute unauthorized practice is question of law for Appellate Division.) Washington State Bar Opinion 184 (1990, amended 2009), a digest of which appears in the ABA/BNA Lawyers’ Manual on Professional Conduct, states as follows:

A lawyer may not hire a disbarred or suspended lawyer in a capacity related to the practice of law such as a legal clerk, researcher, writer, secretary, office employee, paralegal, investigator, messenger or law firm accountant, but he may hire a disbarred or suspended lawyer in other non-law-related capacities such as mowing lawns, washing windows, or managing a business or property not related to the practice of law. Formal Opinion 171 is withdrawn. Rule 1.1(h).

See also Mississippi Opinion 171 citing to an earlier Opinion 96 that stated that it is not proper for an attorney to allow a disbarred or suspended attorney to work as a paralegal or legal assistant in the attorney’s law office and concluded that a lawyer who has been reinstated conditioned on passing the state bar and MPRE exams may not work in a law firm until he has complied with the conditions of his reinstatement .
See also Philadelphia Bar Opinion 2012-3 (2012) stating that a suspended lawyer may not act as a nonattorney advocate in a Social Security proceeding. 

III. State rules of professional conduct. Some states address this question through their rules of professional conduct. See, e.g., Wyoming ’s version of Rule 8.4 that states as follows:

It is professional misconduct for a lawyer to:

(g) … knowingly employ or continue to employ or contract with any person in the practice of law who has been disbarred or is under suspension from the practice of law by any jurisdiction, or is on disability inactive status by any jurisdiction. The prohibition of this rule extends to the employment of or contracting for the services of such disbarred or suspended person in any position or capacity (including but not limited to as an employee, independent contractor, paralegal, secretary, investigator or consultant) which is directly or indirectly related to the practice of law as defined by Rule 11(a) of the Rules of the Supreme Court of Wyoming Providing for the Organization and Government of the Bar Association and Attorneys at Law of the State of Wyoming, whether or not compensation is paid.

See also  California Rule of Professional Conduct 1-311 and Georgia Rule of Professional Conduct 5.3(d).  Louisiana Rule of Professional Conduct 5.5(e)(1) states:

     (e) (l) A lawyer shall not:

     (i) employ, contract with as a consultant, engage as an independent contractor, or otherwise join in any other capacity, in connection with the practice of law, any person the attorney knows or reasonably should know is a disbarred attorney, during the period of disbarment, or any person the attorney knows or reasonably should know is an attorney who has permanently resigned from the practice of law in lieu of discipline; or

     (ii) employ, contract with as a consultant, engage as an independent contractor, or otherwise join in any other capacity, in connection with the practice of law, any person the attorney knows or reasonably should know is a suspended attorney, or an attorney who has been transferred to disability inactive status, during the period of suspension or transfer, unless first preceded by the submission of a fully executed employment registration statement to the Office of Disciplinary Counsel, on a registration form provided by the Louisiana Attorney Disciplinary Board, and approved by the Louisiana Supreme Court.

     In May of 2012, the ABA Client Protection Committee conducted a survey of Unlicensed Practice of Law Committees.  In Chart III of the survey, one of the questions posed is:  May disbarred or suspended lawyers engage in a law-related activity? If so, what are the restrictions?  Of the states responding, 20 said yes, while 14 said no.  The results are available here.

For further information on the types of activities that suspended or disbarred lawyers may engage in, your state unauthorized practice of law committee may be able to help. A state-by-state listing of these committees with contact information is available here.

IV. Case law

In those jurisdictions that permit a disbarred or suspended lawyer to work in a law firm in a nonlegal capacity, lawyers who employ them must carefully supervise them in order to avoid assisting in the unauthorized practice of law. See the following annotations to Rule 5.5 from the 2011 edition of the ABA Annotated Model Rules of Professional Conduct:

  • Law-Related Activities of Suspended or Disbarred Lawyers The extent to which suspended or disbarred lawyers may engage in law-related activities short of actual practice depends upon the jurisdiction. See Wilson v. State Bar, 132 F.3d 1422 (11th Cir. 1998) (rules prohibiting practicing lawyers from allowing suspended or disbarred lawyers they employ to have contact with clients are not unconstitutionally vague); In re Boyer, 988 P.2d 625 (Colo. 1999) (suspended lawyer engaged in unauthorized practice by analyzing value of clients’ personal injury claims, negotiating with insurer regarding claims, giving advice, and collecting attorneys’ fees); In re Anonymous, 787 N.E.2d 883 (Ind. 2003) (Indiana prohibits suspended or disbarred lawyer from maintaining presence or occupying office where practice of law is conducted “so the public is not misled into believing that the attorney is still authorized to practice law”); In re Wiles, 210 P.3d 613 (Kan. 2009) (disbarred or suspended lawyer may work for lawyer as law clerk, investigator, paralegal, or in any lay capacity but may do only preparatory work under lawyer’s supervision and may not have client contact in person, by telephone, or in correspondence); In re Rowe, 604 N.E.2d 728 (N.Y. 1992) (publishing article on legal topic and identifying self in it as “J.D.” did not violate suspension directing lawyer not to practice law, give advice on law, or hold himself out as lawyer); In re Chastain, 587 S.E.2d 115 (S.C. 2003) (disbarring suspended lawyer who engaged in unauthorized practice by working as office manager for county lawyer).


V.  Conclusion

Whether a suspended or disbarred lawyer may engage in law-related activities is dependent on the rules of professional conduct, lawyer rules of disciplinary enforcement and case law of the jurisdiction. As always, check your local rules. Lawyers who have questions in this area might also consider contacting their state unauthorized practice of law committee.

Rule 217(j) of the Pennsylvania Rules of Lawyer Disciplinary Enforcement:

(j) A formerly admitted attorney may not engage in any form of law-related activities in this Commonwealth except in accordance with the following requirements:

(1) All law-related activities of the formerly admitted attorney shall be conducted under the supervision of a member in good standing of the Bar of this Commonwealth who shall be responsible for ensuring that the formerly admitted attorney complies with the requirements of this subdivision (j). If the formerly admitted attorney is engaged by a law firm or other organization providing legal services, whether by employment or other relationship, an attorney of the firm or organization shall be designated by the firm or organization as the supervising attorney for purposes of this subdivision.

(2) For purposes of this subdivision (j), the only law-related activities that may be conducted by a formerly admitted attorney are the following:
(i) legal work of a preparatory nature, such as legal research, assembly of data and other necessary information, and drafting of transactional documents, pleadings, briefs, and other similar documents;

(ii) direct communication with the client or third parties to the extent permitted by paragraph (3); and

(iii) accompanying a member in good standing of the Bar of this Commonwealth to a deposition or other discovery matter or to a meeting regarding a matter that is not currently in litigation, for the limited purpose of providing clerical assistance to the member in good standing who appears as the representative of the client.

(3) A formerly admitted attorney may have direct communication with a client or third party regarding a matter being handled by the attorney, organization or firm for which the formerly admitted attorney works only if the communication is limited to ministerial matters such as scheduling, billing, updates, confirmation of receipt or sending of correspondence and messages. The formerly admitted attorney shall clearly indicate in any such communication that he or she is a legal assistant and identify the supervising attorney.

(4) Without limiting the other restrictions in this subdivision (j), a formerly admitted attorney is specifically prohibited from engaging in any of the following activities:

(i) performing any law-related activity for a law firm, organization or lawyer if the formerly admitted attorney was associated with that law firm, organization or lawyer on or after the date on which the acts which resulted in the disbarment or suspension occurred, through and including the effective date of disbarment or suspension;

(ii) performing any law-related services from an office that is not staffed by a supervising attorney on a full time basis;

(iii) performing any law-related services for any client who in the past was represented by the formerly admitted attorney;

(iv) representing himself or herself as a lawyer or person of similar status;

(v) having any contact with clients either in person, by telephone, or in writing, except as provided in paragraph (3);

(vi) rendering legal consultation or advice to a client;

(vii) appearing on behalf of a client in any hearing or proceeding or before any judicial officer, arbitrator, mediator, court, public agency, referee, magistrate, hearing officer or any other adjudicative person or body;21

(viii) appearing as a representative of the client at a deposition or other discovery matter;

(ix) negotiating or transacting any matter for or on behalf of a client with third parties or having any contact with third parties regarding such a negotiation or transaction;

(x) receiving, disbursing or otherwise handling client funds.

(5) The supervising attorney and the formerly admitted attorney shall file with the Disciplinary Board a notice of engagement, identifying the supervising attorney and certifying that the formerly admitted attorney’s activities will be monitored for compliance with this subdivision (j). The supervising attorney and the formerly admitted attorney shall file a notice with the Disciplinary Board immediately upon the termination of the engagement between the formerly admitted attorney and the supervising attorney.

(6) The supervising attorney shall be subject to disciplinary action for any failure by either the formerly admitted attorney or the supervising attorney to comply with the provisions of this subdivision (j).

Note: Subdivision (j) was adopted by the Court to limit and regulate the law-related activities performed by formerly admitted attorneys regardless of whether those formerly admitted attorneys are engaged as employees, independent contractors or in any other capacity. Subdivision (j) requires that a notice be filed with the Disciplinary Board when any law-related activities are performed by a formerly admitted attorney and when the engagement is terminated. Subdivision (j) is addressed only to the special circumstance of formerly admitted attorneys engaging in law-related activities and should not be read more broadly to define the permissible activities that may be conducted by a paralegal, law clerk, investigator, etc. who is not a formerly admitted attorney. Subdivision (j) is also not intended to establish a standard for what constitutes the unauthorized practice of law. Finally, subdivision (j) is not intended to prohibit a formerly admitted attorney from performing services that are not unique to law offices, such as physical plant or equipment maintenance, courier or delivery services, catering, typing or transcription or other similar general office support activities.

 

Model Rules for Lawyer Disciplinary Enforcement

MODEL RULES FOR LAWYER DISCIPLINARY ENFORCEMENT

About the Model Rules

The Model Rules for Lawyer Disciplinary Enforcement were adopted by the American Bar Association House of Delegates on August 8, 1989 and amended on August 11, 1993, August 5, 1996, February 8, 1999, and August 12, 2002.

Russian Translation (2009)

Table of Contents

Nothing contained in this book is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel.

TERMINOLOGY

PREAMBLE: AUTHORITY OF THE COURT

I. STRUCTURE AND SCOPE

Rule 1 COMPREHENSIVE LAWYER REGULATORY SYSTEM

A. Component Agencies

B. Central Intake Office

C. Disciplinary Districts

 

Rule 2 THE DISCIPLINARY BOARD OF THE SUPREME COURT OF [STATE NAME]

A. Agency

B. Appointment

C. Election of Officers

D. Quorum

E. Compensation and Expenses

F. Abstention and Disqualification of Board Members

G. Powers and Duties

 

Rule 3 HEARING COMMITTEES

A. Appointment

B. Terms of Office

C. Quorum

D. Powers and Duties

E. Powers and Duties of Hearing Committee Chair

F. Abstention and Disqualification of Hearing Committee Members

 

Rule 4 DISCIPLINARY COUNSEL

A. Appointment

B. Powers and Duties

C. Advisory Opinions Prohibited

D. Ex Parte Communication with Disciplinary Counsel

E. Disqualification

 

Rule 5 EXPENSES

 

Rule 6 JURISDICTION

A. Lawyers Admitted to Practice

B. Former Judges

C. Incumbent Judges

D. Powers Not Assumed

 

Rule 7 ROSTER OF LAWYERS

 

Rule 8 PERIODIC ASSESSMENT OF LAWYERS

A. Requirement

B. Exemption of Judges

C. Suspension for Nonpayment

D. Reinstatement after Payment

E. Registration Statement

F. Receipt Demonstrating Filing of Registration Statement

G. Suspension for Failure to File Registration Statements

H. Application for Transfer to Inactive Status

I. Reinstatement from Inactive Status

 

Rule 9 GROUNDS FOR DISCIPLINE/LESSER MISCONDUCT

A. Grounds for Discipline

B. Lesser Misconduct

 

Rule 10 SANCTIONS

A. Types of Sanctions

B. Conditions

C. Factors to be Considered in Imposing Sanctions

D. Public Nature of Sanctions

II. PROCEDURE FOR DISCIPLINARY PROCEEDINGS

Rule 11 GENERALLY

A. Evaluation

B. Investigation

C. Admonition or Probation Imposition

D. Formal Charges

E. Review by Board

F. Review by the Court

G. Alternatives to Discipline Program

 

Rule 12 IMMUNITY

A. From Civil Suits

B. From Criminal Prosecution

 

Rule 13 SERVICE

A. Service of Petition

B. Service of Other Papers

 

Rule 14 SUBPOENA POWER

A. Oaths

B. Investigatory Subpoenas

C. Subpoenas for Deposition or Hearing

D. Enforcement of Subpoenas

E. Quashing Subpoena

F. Witnesses and Fees

G. Subpoena Pursuant to Law of Another Jurisdiction

 

Rule 15 DISCOVERY

A. Scope

B. Resolution of Disputes

C. Civil Rules Not Applicable

 

Rule 16 ACCESS TO DISCIPLINARY INFORMATION

A. Availability of Information

B. Confidentiality

C. Public Proceedings

D. Proceedings Alleging Disability

E. Protective Orders

F. Request for Nonpublic Information

G. Notice to Lawyer

H. Release Without Notice

I. Notice to National Lawyer Regulatory Data Bank

J. Duty of Officials and Employees of the Agency

 

Rule 17 DISSEMINATION OF DISCIPLINARY INFORMATION

A. Notice to Disciplinary Agencies

B. Public Notice of Discipline Imposed

C. Notice to the Courts

 

Rule 18 ADDITIONAL RULES OF PROCEDURE

A. Nature of Proceedings

B. Rules Governed by Rules of Civil Procedure and Evidence

C. Standard of Proof

D. Burden of Proof

E. Prehearing Conference

F. Hearings Recorded

G. Related Pending Litigation

H. Hearings on Lesser Misconduct

I. Delay Caused by Complainant

J. Effect of Time Limitations

K. Complaints Against Disciplinary Agency Members

 

Rule 19 LAWYERS FOUND GUILTY OF A CRIME

A. Transmittal of Certificate of Conviction by Clerk of Trial Court

B. Determination of "Serious Crime"

C. Definition of "Serious Crime"

D. Immediate Interim Suspension

E. Conviction as Conclusive Evidence

F. Automatic Reinstatement from Interim Suspension upon Reversal of Conviction

G. Notice to Clients and Others on Interim Suspension

 

Rule 20 INTERIM SUSPENSION FOR THREAT OF HARM

A. Transmittal of Evidence

B. Immediate Interim Suspension

C. Notice to Clients

D. Motion for Dissolution of Interim Suspension

 

Rule 21 DISCIPLINE BY CONSENT

A. Board Approval of Tendered Admission

B. Review of Discipline by Consent

C. Discontinuance of Jurisdiction

D. Affidavit of Consent

E. Order of Discipline

 

Rule 22 RECIPROCAL DISCIPLINE AND RECIPROCAL DISABILITY INACTIVE STATUS

A. Disciplinary Counsel Duty to Obtain Order of Discipline or Disability Inactive Status from Other Jurisdiction

B. Notice Served Upon Respondent

C. Effect of Stay in Other Jurisdiction

D. Discipline to be Imposed

E. Conclusiveness of Adjudication in Other Jurisdictions

 

Rule 22 AMENDMENTS ADOPTED BY THE ABA HOUSE OF DELEGATES IN AUGUST 2002

 

Rule 23 PROCEEDINGS IN WHICH LAWYER IS DECLARED TO BE INCOMPETENT OR ALLEGED TO BE INCAPACITATED

A. Involuntary Commitment or Adjudication of Incompetency

B. Inability to Properly Defend

C. Proceedings to Determine Incapacity

D. Public Notice of Transfer to Disability Inactive Status

E. Reinstatement from Disability Inactive Status

 

Rule 24 REINSTATEMENT FOLLOWING A SUSPENSION OF SIX MONTHS OR LESS

 

Rule 25 REINSTATEMENT AFTER SUSPENSION FOR MORE THAN SIX MONTHS AND READMISSION

A. Generally

B. Petition

C. Service of Petition

D. Publication of Notice of Petition

E. Criteria for Reinstatement and Readmission

F. Review of Petition

G. Hearing; Report

H. Decision as to Reinstatement or Readmission

I. Conditions of Reinstatement or Readmission

J. Reciprocal Reinstatement or Readmission

 

[Rule 26 ABATEMENT OR MODIFICATION OF CONDITIONS OF DISCIPLINE, REINSTATEMENT, OR READMISSION]

 

Rule 27 NOTICE TO CLIENTS, ADVERSE PARTIES, AND OTHER COUNSEL

A. Recipients of Notice; Contents

B. Special Notice

C. Duty to Maintain Records

D. Return of Client Property

E. Effective Date of Order; Refund of Fees

F. Withdrawal from Representation

G. New Representation Prohibited

H. Affidavit Filed with Court

 

Rule 28 APPOINTMENT OF COUNSEL TO PROTECT CLIENTS’ INTERESTS WHEN RESPONDENT IS TRANSFERRED TO DISABILITY INACTIVE STATUS, SUSPENDED, DISBARRED, DISAPPEARS, OR DIES

A. Inventory of Lawyer Files

B. Protection for Records Subject to Inventory

 

Rule 29 MAINTENANCE OF TRUST FUNDS IN APPROVED FINANCIAL INSTITUTIONS; OVERDRAFT NOTIFICATION

A. Clearly Identified Trust Accounts in Approved Financial Institutions Required

B. Overdraft Notification Agreement Required C. Overdraft Reports

D. Timing of Reports

E. Consent By Lawyers

F. Costs

G. Definitions

 

Rule 30 VERIFICATION OF BANK ACCOUNTS

A. Generally

B. Confidentiality

 

Rule 31 APPEAL BY COMPLAINANT

A. From Disposition by Central Intake Office

B. From Disposition by Disciplinary Agency

 

Rule 32 STATUTE OF LIMITATIONS

 

Rule 33 FAILURE TO ANSWER/FAILURE TO APPEAR

A. Failure to Answer

B. Failure to Appear

 

Rule 34 COUNSEL FOR INDIGENT RESPONDENT

EFFECTIVE DATE

APPENDIX A

SUBJECT GUIDE

 

2016_12_16_ COURT of APPEALS

 

 

 Jump to Civil Cases     Jump to Criminal Cases      Orders

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KENTUCKY COURT OF APPEALS CASES-

LawReader Synopsis For: DECEMBER 16, 2016

27 cases  –  2  to be published

Search LawReader Library of Past Decisions:

 

Edited by Judge Stan Billingsley (Ret.)

DECISIONS W/SYNOPSIS – Click on blue case number to read full text.

 

Court of Appeals Case Info / Oral Arguments Calendar / Court of Appeals Minutes

Opinions shall not be cited until all steps in the appellate process have been exhausted and they become final.

Kentucky Court of Appeals Judges – Current Directory

CIVIL CASES & CRIMINAL CASES

1

Click to Read Full Text

NO. 2014-CA-000298-MR

NO. 2014-CA-000858

NOT TO BE PUBLISHED

EDITH TRAVIS APPELLANT

V.

DAVID TRAVIS APPELLEE

APPEALS FROM BOYD CIRCUIT COURT

HONORABLE GEORGE W. DAVIS, III, JUDGE

ACTION NO. 10-CI-00183

OPINION AFFIRMING

** ** ** ** **

CLAYTON, NICKELL AND VANMETER, JUDGES.

NICKELL, JUDGE: These consolidated appeals challenge the Boyd Circuit Court’s modification of the division of marital property previously established in the divorce decree terminating the marriage of Edith Travis and David Travis, and the amount of the supersedeas bond set in the matter. Following a careful review of the record, the briefs and the law, we affirm.

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2

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NO. 2014-CA-000381

NOT TO BE PUBLISHED

MR JOHNNIE R. DOUGLAS APPELLANT

V.

COMMONWEALTH OF KENTUCKY APPELLEE

 APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE OLU A. STEVENS, JUDGE

ACTION NO. 05-CR-002357

OPINION VACATING AND REMANDING

** ** ** ** **

BEFORE: CLAYTON, COMBS, AND MAZE, JUDGES.

COMBS, JUDGE: Appellant, Johnnie Ray Douglas, appeals from the denial of his RCr 11.42 motion alleging ineffective assistance of counsel based on failure to conduct a proper voir dire and for failure to seek post-trial relief after a juror Kentucky Rules of Criminal Procedure. revealed that he had been a victim of a prior crime committed by Douglas.

 We vacate and remand for a new trial

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3

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NO. 2014-CA-001712-MR

NOT TO BE PUBLISHED

MR TRISHA ANN WILLIAMS APPELLANT

V.

RANDY CLINE AND KEITH MCCORMICK  APPELLEES

APPEAL FROM ROWAN CIRCUIT COURT

HONORABLE WILLIAM EVANS LANE, JUDGE

ACTION NO. 10-CI-90269

OPINION AFFIRMING

** ** ** ** **

BEFORE: JONES, STUMBO, AND VANMETER, JUDGES. JONES, JUDGE: The Appellant, Trisha Ann Williams (“Williams”), appeals from the August 26, 2014, order of the Rowan Circuit Court dismissing her claims of negligence and malicious prosecution against Appellees, Randy Cline and Keith McCormick. After a careful review of the record and applicable law, we affirm.

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4

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NO. 2014-CA-001915-MR

NOT TO BE PUBLISHED

RANDALL S. WALDMAN APPELLANT

APPEAL FROM GRAYSON CIRCUIT COURT

HONORABLE ROBERT A. MILLER, JUDGE

ACTION NO. 11-CI-00079

 PNC BANK, NATIONAL ASSOCIATION APPELLEE

AND NO. 2014-CA-001916-MR

LAUREN WALDMAN F/K/A LAUREN SYKES AND LSW LTD, LLC, AND LSW, LTD., LLC APPELLANTS v.

APPEAL FROM GRAYSON CIRCUIT COURT

HONORABLE ROBERT A. MILLER, JUDGE

ACTION NO. 11-CI-00079

PNC BANK, NATIONAL ASSOCIATION

: This matter involves the appeals of co-defendants, Randall S. Waldman and Lauren Waldman, who are father and daughter. They appeal separately the Grayson Circuit Court grant of summary judgment in favor of PNC Bank, National Association (hereinafter “PNC”), successor to National City Bank (hereinafter “NCB”).

 The Appellants contest the trial court’s decision that the transfer of real property by Randall Waldman, the Trustee, from the Randall S. Waldman Trust to RSW LTD III, LLC, and the subsequent transfer from RSW LTD III, LLC to LSW, LTD, LLC, of which Lauren Waldman was the sole Trustee, may be set aside.

Pertinent to this litigation is a prior case in Bullitt Circuit Court wherein NCB was awarded a judgment against Randall, Integrity Manufacturing, and Integrity Tools, based on a promissory note and guaranty.

Because the transfer was set aside, this real property may be used to satisfy the Bullitt Circuit Court judgment against Randall and Lauren.

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5

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NO. 2014-CA-002094

TO BE PUBLISHED

 DWIGHT EDWARD FISCHER APPELLANT

COMMONWEALTH OF KENTUCKYAPPELLEE

APPEAL FROM FAYETTE CIRCUIT COURT

. HONORABLE ERNESTO SCORSONE, JUDGE

ACTION NO. 13-CR-01063

APPELLEE OPINION AFFIRMING

** ** ** ** **

BEFORE: MAZE, TAYLOR AND VANMETER, JUDGES.

VANMETER, JUDGE: Dwight Edward Fischer appeals the Fayette Circuit Court’s denial of his motion to suppress statements made to Lexington police detectives outside their jurisdiction during the course of a knock and talk.

For the following reasons, we affirm.

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6

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NO. 2015-CA-000459-MR

NOT TO BE PUBLISHED

MR ROCKY WICKER APPELLANT

V.

COMMONWEALTH OF KENTUCKY APPELLEE

APPEAL FROM KNOTT CIRCUIT COURT

HONORABLE KIMBERLY C. CHILDERS, JUDGE

ACTION NO. 13-CR-00082

OPINION AFFIRMING

** ** ** ** **

BEFORE: ACREE, CLAYTON, AND J. LAMBERT, JUDGES.

LAMBERT, J., JUDGE: Rocky Wicker appeals from the Knott Circuit Court’s judgment and sentence following a jury trial, entered January 23, 2015. Wicker was convicted of attempted murder, attempted manslaughter, and two counts of first-degree wanton endangerment, and he was sentenced to seventeen-years’ imprisonment. We affirm the circuit court’s judgment

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7

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NO. 2015-CA-000483-MR

NOT TO BE PUBLISHED

ESTATE OF FENIMORE H. CALLAWAY and ANN THOMAS, EXECUTRIX APPELLANTS

V.

ANTHONY FRANCIS APPELLEE

APPEAL FROM FAYETTE CIRCUIT COURT

HONORABLE JAMES D. ISHMAEL, JR., JUDGE

ACTION NO. 14-CI-01144

AFFIRMING

** ** ** ** **

BEFORE: ACREE, CLAYTON, AND LAMBERT, J., JUDGES.

CLAYTON, JUDGE: Ann Thomas brings this pro se appeal from a Fayette Circuit Court Order granting summary judgment against her, individually and as executrix of the Estate of Fenimore H. Callaway, and against the estate itself. The summary judgment granted the relief Anthony Francis sought in his complaint to compel enforcement of a real estate contract entered into between Francis and -1- Callaway before Callaway’s death. The circuit court found no genuine issue of material fact to support either of Thomas’ defenses that Callaway lacked capacity to enter into the contract of sale or that Callaway was the victim of undue influence. We agree with circuit court and, therefore, affirm.

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8

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NO. 2015-CA-000513-MR

TO BE PUBLISHED

NICOLE PETERSON, ADMINISTRATRIX OF THE ESTATE OF PEGGY MCWHORTER, DECEASED;

AND WANDA RUSSELL, GUARDIAN AND NEXT FRIEND OF D.M.M. AND E.H.M., MINOR CHILDREN OF PEGGY GAIL MCWHORTER APPELLANTS

V.

BOBBY DUNBAR; BETHANY FOLEY; MICHAEL CLARK; CHARLES GRIDER; BRENDA HUDSON; DENNIS GRAYUM; DEBBIE GRAYUM; SCOTT HADLEY; JANICE SIMPSON; AND KEVIN BOOTH APPELLEES

APPEAL FROM RUSSELL CIRCUIT COURT

HONORABLE VERNON MINIARD JR., JUDGE

ACTION NO. 12-CI-00191

OPINION AFFIRMING

** ** ** ** **

BEFORE: ACREE, D. LAMBERT, AND VANMETER, JUDGES.

ACREE, JUDGE: The issue we must decide in this case is whether the Russell Circuit Court erred in granting summary judgment in favor of Bobby Dunbar, the Russell County Jailer, and his deputies who were on duty when Peggy McWhorter was admitted to the Russell County Detention Center and died of an overdose due to drugs she had ingested prior to her reporting to the detention center. We hold the circuit court did not err and therefore affirm.

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9

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NO. 2015-CA-000693-MR

NOT TO BE PUBLISHED

JOSHUA PEACHER APPELLANT

COMMONWEALTH OF KENTUCKY APPELLEE

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE

ACTION NOS. 08-CR-002598 & 08-CR-0002598-001

OPINION AFFIRMING

** ** ** ** **

BEFORE: J. LAMBERT, TAYLOR AND THOMPSON, JUDGES.

THOMPSON, JUDGE: Joshua Peacher appeals from an order of the Jefferson Circuit Court denying his Kentucky Rules of Criminal Procedure (RCr) 11.42 motion based on ineffective assistance of counsel without conducting an evidentiary hearing. We affirm.

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10

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NO. 2015-CA-000705-MR

NOT TO BE PUBLISHED

DEANTON GREENWADE APPELLANT

V.

COMMONWEALTH OF KENTUCKY APPELLEE

APPEAL FROM CHRISTIAN CIRCUIT COURT

 HONORABLE JOHN L. ATKINS, JUDGE

ACTION NOS. 14-CR-00432 AND 14-CR-00578

VACATING AND REMANDING

** ** ** ** **

BEFORE: KRAMER, CHIEF JUDGE; D. LAMBERT AND J. LAMBERT, JUDGES.

KRAMER, JUDGE: Deanton Greenwade appeals the Christian Circuit Court’s judgment convicting him of second-degree burglary and of being a first-degree persistent felony offender (PFO-1st). After a careful review of the record, we vacate Greenwade’s conviction and remand the case for a new trial because a violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) occurred.

We address Greenwade’s other issues in the event that they may arise again in the circuit court upon remand.

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11

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NO. 2015-CA-000902-MR

 & 2015-CA-000903-MR

NOT TO BE PUBLISHED

OPINION AFFIRMING IN PART,

REVERSING IN PART, AND REMANDING

** ** ** ** **

 BEFORE: KRAMER, CHIEF JUDGE; ACREE AND D. LAMBERT, JUDGES.

KRAMER, CHIEF JUDGE: James Daniels has appealed from the Bell Circuit Court’s Judgment and Sentence Pursuant to Jury Verdict entered June 3, 2015. This court affirms the circuit court in part, reverses in part, and remands

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12

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NO. 2015-CA-000938-MR

NOT TO BE PUBLISHED

ROBERT WEBB APPELLANT

V.

DAN CUMMINS CHEVROLET-BUICK, INC. APPELLEE

APPEAL FROM BOURBON CIRCUIT COURT

HONORABLE ROBERT G. JOHNSON, JUDGE

ACTION NO. 15-CI-00061

OPINION AFFIRMING

 ** ** ** ** **

BEFORE: ACREE, COMBS, AND JONES, JUDGES.

JONES, JUDGE: Appellant, Robert Webb, appeals from the Bourbon Circuit Court’s order granting the motion filed by Appellee, Dan Cummins Chevrolet Buick, for dismissal and summary judgment. For the reasons set forth below, we AFFIRM.

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13

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2015-CA-000971-MR

NOT TO BE PUBLISHED

JOHNNY STINSON BRYANT APPELLANT

V.

MARY LOU BRYANT APPELLEE

APPEAL FROM FRANKLIN CIRCUIT COURT

HONORABLE SQUIRE N. WILLIAMS, JUDGE

ACTION NO. 13-CI-00831

OPINION REVERSING AND REMANDING

** ** ** ** **

BEFORE: KRAMER, CHIEF JUDGE; TAYLOR AND VANMETER, JUDGES.

VANMETER, JUDGE: Johnny Stinson Bryant appeals an order from the Franklin Family Court entered on April 14, 2015 classifying a home given to him by his employer as a marital employment benefit.

 For the following reasons, we reverse and remand.

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14

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NO. 2015-CA-001139-MR

NOT TO BE PUBLISHED

WILLIAM STOKES APPELLANT

V.

COMMONWEALTH OF KENTUCKY APPELLEE

APPEAL FROM CHRISTIAN CIRCUIT COURT 

HONORABLE JOHN L. ATKINS, JUDGE 

ACTION NO. 14-CR-00518

OPINION AFFIRMING

** ** ** ** **

BEFORE: ACREE, JONES, AND VANMETER, JUDGES.

VANMETER, JUDGE: William Stokes appeals from the Christian Circuit Court’s Order Denying Motion to Suppress, entered March 12, 2015. We affirm the circuit court.

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15

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NO. 2015-CA-001191-MR

NOT TO BE PUBLISHED

MICHAEL W. ASHER APPELLANT

V.

COMMONWEALTH OF KENTUCKY APPELLEE

GRANT CIRCUIT COURT

HONORABLE REBECCA LESLIE KNIGHT, JUDGE

ACTION NO. 14-CR-00057

AFFIRMING

 ** ** ** ** **

BEFORE: KRAMER, CHIEF JUDGE; D. LAMBERT AND J. LAMBERT, JUDGES.

KRAMER, CHIEF JUDGE: Michael W. Asher appeals from a final judgment of the Grant Circuit Court entered after his motion to withdraw his guilty plea was denied.

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16

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NO. 2015-CA-001267-MR

NOT TO BE PUBLISHED

ERNEST MAY APPELLANT

V.

LUCY MAY APPELLEE

CLAY CIRCUIT COURT

HONORABLE GENE CLARK, JUDGE ACTION NO. 13-CI-00227

OPINION AFFIRMING

** ** ** ** **

BEFORE: ACREE, CLAYTON, AND J. LAMBERT, JUDGES.

CLAYTON, JUDGE: Ernest May appeals the Clay Circuit Court’s marital dissolution decree dividing the marital property of he and his former wife, Lucy May. The Mays married more than four decades ago. They separated in 2013 and have not cohabitated since. Their marriage was dissolved on April 16, 2014, when the Clay Circuit Court entered a bifurcated decree of dissolution of marriage.

A hearing was then set to assign the parties their non-marital property and divide the marital property. At the hearing, the parties presented an Agreed Stipulation of Values for many items of real and personal property, including the three tracts of land the parties owned and the two mobile homes that resided on the same.

The parties also presented evidence that they each had acquired non-marital property during the marriage. On appeal, neither party disputes the non-marital assignments. It is sufficient to note that Ernest’s non-marital assignment came from a disability settlement from the Veterans’ Administration and Lucy’s non-marital funds came from life insurance proceeds she received and later used to purchase the mobile home in which the parties lived. Lucy was thus assigned the mobile home as nonmarital property. The parties then informed the trial court which items of personal and real property they wished to be awarded

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17

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NO. 2015-CA-001282-MR

NOT TO BE PUBLISHED

JANICE TAYLOR APPELLANT

V.

FRANKLIN CIRCUIT COURT

HONORABLE PHILLIP J. SHEPHERD, JUDGE

ACTION NO. 14-CI-00504

KENTUCKY RETIREMENT SYSTEMS;

and BOARD OF TRUSTEES OF KENTUCKY RETIREMENT SYSTEMS

APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: KRAMER, CHIEF JUDGE; D. LAMBERT AND J. LAMBERT, JUDGES.

KRAMER, CHIEF JUDGE: Janice Taylor is 52 years of age and accumulated 104 months of service credit in the Kentucky Employee Retirement Systems (KERS) working for the Cabinet for Health and Family Services in the position of Citizen Assistance Specialist II, a job which involved sitting during the entire 7.5 hour work day. For the purpose of disability retirement benefits, her last date of paid employment was July 29, 2010.1 Taylor has several pre-existing conditions in the region of her lower back which have intermittently disabled her from work prior to July 29, 2010.

In her application for disability retirement benefits, filed February 9, 2011, Taylor claimed she was unable to continue working because she was afflicted with a new condition, coccydynia, which is characterized by intense pain in the coccyx (tailbone) when sitting.

 The Board of Trustees of the KERS (Board) ultimately denied Taylor’s application because it was unpersuaded coccydynia rendered Taylor disabled since her last date of paid employment. See Kentucky Revised Statute (KRS) 61.600. Thereafter, Taylor appealed the Board’s determination by filing an original action in Franklin Circuit Court. The issue presented in this appeal is whether the circuit court erred in affirming the final order of the Board. Finding no error, we likewise affirm

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18

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NO. 2015-CA-001309-MR

NOT TO BE PUBLISHED

DOUGLAS RANK APPELLANT

V.

BOBBY MILLER, M.D. APPELLEE

APPEAL FROM KENTON CIRCUIT COURT

HONORABLE GREGORY M. BARTLETT, JUDGE

ACTION NO. 14-CI-00858

OPINION AFFIRMING

** ** ** ** **

BEFORE: KRAMER, CHIEF JUDGE; D. LAMBERT AND J. LAMBERT, JUDGES.

KRAMER, CHIEF JUDGE: Douglas Rank, pro se, appeals the decision of the Kenton Circuit Court to summarily dismiss his breach of contract and fraud claims against appellee, Bobby Miller. Upon review, we affirm.

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19

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NO. 2015-CA-001342-MR

NOT TO BE PUBLISHED

MR MARY SPANNKNEBEL APPELLANT

V.

VAN SPANNKNEBEL APPELLEE

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE TARA HAGERTY, JUDGE

ACTION NO. 13-CI-502933 E

OPINION VACATING AND REMANDING

** ** ** ** **

BEFORE: COMBS, J. LAMBERT AND VANMETER, JUDGES.

VANMETER, JUDGE: Mary Virginia Spannknebel (Mary) appeals an order from the Jefferson Family Court entered June 18, 2015 with respect to the division of marital property and arrears for maintenance. For the following reasons, we vacate and remand.

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20

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NO. 2015-CA-001660-MR

NOT TO BE PUBLISHED

BRAD CALLINAN APPELLANT

V.

COMMONWEALTH OF KENTUCKY APPELLEE 

APPEAL FROM CASEY CIRCUIT COURT

HONORABLE JUDY D. VANCE, JUDGE

ACTION NO. 15-CR-00006

OPINION AFFIRMING IN PART

AND VACATING IN PART

** ** ** ** **

BEFORE: ACREE, JONES AND VANMETER, JUDGES.

VANMETER, JUDGE: Brad Callinan appeals from the Casey Circuit Court’s Judgment and Sentence on Jury Verdict, entered October 30, 2015.

 We affirm the circuit court as to its written judgment and sentence, but vacate the order to show cause for non-payment entered by the circuit court on October 12, 2015.

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21

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NO. 2015-CA-001762-WC 

NOT TO BE PUBLISHED

 TOYOTA MOTOR MANUFACTURING, KENTUCKY, INC. APPELLANT 

 PETITION FOR REVIEW OF A DECISION OF THE WORKERS’ COMPENSATION BOARD ACTION NO. WC-06-94736

 KATHY PRICHARD; HON. WILLIAM J. RUDLOFF, ALJ; AND KENTUCKY WORKERS’ COMPENSATION BOARD APPELLEES

 

OPINION AFFIRMING

** ** ** ** **

BEFORE: D. LAMBERT, MAZE, AND VANMETER, JUDGES.

MAZE, JUDGE: Toyota Motor Manufacturing, Kentucky, Inc. (hereinafter “Toyota”) petitions for review of a ruling of the Kentucky Workers’ Compensation Board (“the Board”). Toyota argues that the Board erred in ruling that Appellee, Kathy Prichard, was entitled to reopen a 2011 award despite requesting such relief more than four years after her original injury and claim.

Toyota also argues that, notwithstanding the timeliness of her motion, Prichard failed to establish a worsening of her condition necessary to reopen her claim

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22

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NO. 2015-CA-001889-MR 

NOT TO BE PUBLISHED

BLUEGRASS TAX LIEN BUREAU, LLC APPELLANT

V.

WILLIAM P. GRISE, B&P APARTMENTS, INC., COMMUNITY TRUST BANK, INC., PEOPLES EXCHANGE BANK, MONTGOMERY COUNTY KENTUCKY, CITY OF MOUT STERLING, KENTUCKY, AND 84 LUMBER COMPANY APPELLEES 

APPEAL FROM MONTGOMERY CIRCUIT COURT 

HONORABLE WILLIAM EVANS LANE, JUDGE 

ACTION NO. 13-CI-90248

OPINION REVERSING

AND REMANDING

** ** ** ** **

BEFORE: ACREE, CLAYTON, AND J. LAMBERT, JUDGES.

CLAYTON, JUDGE: This case presents a nuanced issue regarding a third-party purchaser of a certificate of delinquent ad valorem taxes. Before we lay out the issue before us, a brief chronological history of the instant facts is necessary. B&P Apartments, Inc. (“B&P”) owned numerous commercial properties, including real property located at 128 West Main Street, Mt. Sterling, Kentucky (“128 Property”).

 B&P appears to have had difficulties paying its ad valorem taxes, and, pursuant to Kentucky Revised Statutes (“KRS”) 134.452, Montgomery County sold some of the certificates of delinquency to third parties. In 2009, one of those purchasers filed a civil action in Montgomery Circuit Court (the “First Action”) to enforce the ad valorem taxes against the 128 Property and other properties owned by B&P.

 It does not appear any lis pendens was filed in the First Action. Montgomery County, a named party to the First Action, filed an Answer in that case asserting delinquent property taxes for years 2007 and 2008.

23

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NO. 2016-CA-000034-ME 

NOT TO BE PUBLISHED

 JEFFREY MAINKA APPELLANT

V.

DANA ROBINSON APPELLEE

 APPEAL FROM JEFFERSON CIRCUIT COURT FAMILY COURT DIVISION 

HONORABLE DONNA DELAHANTY, JUDGE 

ACTION NOS. 12-D-500252-003

OPINION AFFIRMING

** ** ** ** **

 BEFORE: ACREE, DIXON, AND TAYLOR, JUDGES.

TAYLOR, JUDGE: Jeffrey Mainka brings this appeal from a December 14, 2015, Domestic Violence Order (DVO) of the Jefferson Circuit Court, Family Court Division. We affirm.

24

 

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NO. 2016-CA-000415-ME 

NOT TO BE PUBLISHED

APPEAL FROM GREENUP CIRCUIT COURT 

HONORABLE JEFFREY L. PRESTON, JUDGE 

ACTION NO. 15-AD-00036 

CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY AND P.A., A CHILD APPELLEES 

AND NO. 2016-CA-000416-ME 

 B.A., JR. APPELLANT 

APPEAL FROM GREENUP CIRCUIT COURT 

HONORABLE JEFFREY L. PRESTON, JUDGE 

ACTION NO. 15-AD-00037 

CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY AND B.A., III, A CHILD

OPINION AFFIRMING

** ** ** ** **

BEFORE: JONES, D. LAMBERT, AND TAYLOR, JUDGES.

JONES, JUDGE: This consolidated appeal arises from two orders entered by the Greenup Circuit Court terminating the parental rights of E.A. (“Mother”) and Appellant, B.A. (“Father”), to their two minor sons (the “Children).

 On appeal, Father contends that the circuit court erred on two counts: (1) it failed to consider all the factors set out in KRS 1 625.090(3) to determine the Children’s best interests; and (2) it abused its discretion by terminating Father’s parental rights even though he proved by a preponderance of the evidence that the Children would not continue to be abused or neglected if returned to his care.

 After a careful review of the record, we AFFIRM the circuit court’s orders.

25

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NO. 2016-CA-000532-ME 

NOT TO BE PUBLISHED 

MARCO GARCIA APPEALANT

V.

KARLA BARAHONA APPELLEE 

APPEAL FROM JEFFERSON FAMILY COURT 

HONORABLE ANGELA J. JOHNSON, JUDGE 

ACTION NOS. 16-D-500470 AND 16-D-500470-001 

 

OPINION AFFIRMING

** ** ** ** **

BEFORE: ACREE, J. LAMBERT AND THOMPSON, JUDGES.

THOMPSON, JUDGE: Marco Garcia appeals from the Jefferson Family Court’s domestic violence order (DVO) restricting him from contact with Karla Barahona. Garcia and Barahona were never married but formerly lived together.

 On February 22, 2016, Barahona filed a petition for an emergency protective order (EPO) against Garcia based on the events that occurred at the Coconut Beach night club,

26

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NO. 2016-CA-000666-ME 

NOT TO BE PUBLISHED 

APPEAL FROM JEFFERSON CIRCUIT COURT 

HONORABLE DEANA MCDONALD, JUDGE ACTION NO. 15-AD-500486 

CABINET FOR HEALTH & FAMILY SERVICES, COMMONWEALTH OF KENTUCKY AND S.L.D., A CHILD

APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: ACREE, J. LAMBERT, AND THOMPSON, JUDGES.

LAMBERT, J., JUDGE: D. F. (the Mother) has appealed from an order of the Jefferson Circuit Court terminating parental rights to her biological daughter, S.L.D. (the Child). We find neither error nor abuse of discretion, and we affirm.

27

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NO. 2016-CA-001032-WC 

NOT TO BE PUBLISHED 

CARING PEOPLE SERVICES, LLC APPELLANT 

APPEAL FROM WORKERS’ COMPENSATION BOARD 

ACTION NO. WC-14-78061 

MARY GRAY,

HON. GRANT S. ROARK, ADMINISTRATIVE LAW JUDGE; 

AND WORKERS’ COMPENSATION BOARD

APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: ACREE, JONES, AND VANMETER, JUDGES.

JONES, JUDGE: This appeal arises out of an opinion issued by Kentucky’s Workers’ Compensation Board (“Board”) affirming an award of benefits to the Appellee, Mary Gray. The Appellant, Caring People Service, LLC (“Caring People”), contends that the Board erred because Gray’s injury occurred while she was in her personal vehicle during her commute from her home to her regular worksite, and therefore, is not work-related. Having reviewed the record in conjunction with the applicable legal authorities, we affirm

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Unpublished Opinions

This web site contains both published and unpublished opinions of the Kentucky Supreme Court and Kentucky Court of Appeals. First, opinions that are labeled "NOT TO BE PUBLISHED" shall never be cited or used as authority in any other case in any court of this state. CR 76.28(4)(c). This is true even after the unpublished opinions become final. Secondly, although opinions labeled "TO BE PUBLISHED" may be cited as authority in any court of the Commonwealth of Kentucky, the opinions shall not be cited until all steps in the appellate process have been exhausted and they become final. As of the date Court of Appeals opinions were placed on the web site, none were final.

 

Court Orders:

 

EACH WEEK THE COURT ISSUES IT’S ORDERS GRANTING AND DENYING NUMEROUS MOTIONS

 

SEE THESE ORDERS AT:  CT. OF APPEALS MINUTES     SUPREME COURT MINUTES

 

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KENTUCKY COURT OF APPEALS CASES –

LawReader Synopsis for: November 23, 2016

17 Cases –  4 to be Published

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CIVIL CASES & CRIMINAL CASES

1

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2012-CA-001801

 

NOT TO BE PUBLISHED

KINDRED HEALTHCARE, INC., ET AL.

NICHOLS (ADRIANNE), ADMINISTRATRIX OF THE ESTATE OF CHARLIE NICHOLS

OPINION AFFIRMING

COMBS (PRESIDING JUDGE)

NICKELL (CONCURS)

AND THOMPSON (CONCURS)

OPINION AFFIRMING

** ** ** ** **

BEFORE: COMBS, NICKELL, AND THOMPSON, JUDGES.

COMBS, JUDGE:: Kindred Healthcare, Inc.; Kindred Nursing Centers Ltd. Partnership d/b/a Harrodsburg Health Care Center; Kindred Nursing Centers East, LLC; Kindred Hospitals Limited Partnership; Kindred Healthcare Operating, Inc.; and Kindred Rehab Services, Inc. d/b/a Peoplefirst Rehabilitation n/k/a Rehabcare (collectively referred to herein as “the nursing home”), appeal from the September 27, 2012, order of the Mercer Circuit Court denying a motion to compel arbitration of the action commenced by Charlie Nichols, a resident of the nursing home, now deceased.

 The nursing home contends that the trial court erred by concluding that Anetha Nichols, the daughter of Charlie Nichols, lacked the necessary authority to bind her father to the terms of an alternative dispute resolution agreement that contained a provision requiring arbitration of the parties’ disputes. After our review, we affirm.

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2

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2013-CA-000245

TO BE PUBLISHED

GGNSC FRANKFORT, LLC, ET AL

. VS.

RICHARDSON (JAMES), ET AL.

OPINION AFFIRMING

THOMPSON (PRESIDING JUDGE)

ACREE (CONCURS)

AND COMBS (CONCURS)

OPINION AFFIRMING ** ** ** ** ** BEFORE: ACREE, COMBS AND THOMPSON, JUDGES. THOMPSON, JUDGE:

 GGNSC, Frankfort, LLC, d/b/a Golden Living CenterFrankfort and its affiliated entities (GGNSC) appeal from an order of the Franklin Circuit Court denying a motion to compel arbitration and dismiss or to stay the action pending arbitration.

The question presented is whether a power-of-attorney document executed by Fannie H. Lyon authorized her attorney-in-fact to enter into an agreement to arbitrate any claims arising from GGNSC’s alleged negligence while Fannie was a GGNSC resident.

 Based on our Supreme Court’s decision in Extendicare Homes, Inc. v. Whisman, 478 S.W.3d 306 (Ky. 2016), we conclude the power-of-attorney document did not confer such authority and, therefore, the arbitration agreement is not enforceable.

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3

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2013-CA-001795-MR

NOT TO BE PUBLISHED

KINDRED HEALTHCARE, INC., ET AL.

VS.

HORTON (CYNTHIA), AS EXECUTRIX OF THE ESTATE OF JAMES E. RICHARDSON, DECEASED

OPINION AFFIRMING

DIXON (PRESIDING JUDGE)

MAZE (CONCURS)

AND TAYLOR (CONCURS)

OPINION AFFIRMING ** ** ** ** ** BEFORE: DIXON, MAZE, AND TAYLOR, JUDGES. DIXON, JUDGE:

 Kindred Healthcare, Inc.; Kindred Nursing Centers Limited Partnership D/B/A Kindred Transitional Care and Rehabilitation-Hillcrest; Kindred Nursing Centers East, LLC; Kindred Hospitals Limited Partnership; Kindred Healthcare Operating, Inc.; Kindred Rehab Services, Inc., D/B/A Peoplefirst Rehabilitation N/K/A RehabCare (hereinafter collectively “Kindred”) appeal from an order of the Daviess Circuit Court denying its motion to compel arbitration of the personal injury and wrongful death claims initiated by Cynthia Horton, as Executrix of the Estate of James E. Richardson, deceased (“Estate”).

For the reasons set forth herein, we affirm.

After James was appointed administrator of Fannie’s estate, he filed this action in the Franklin Circuit Court alleging negligence, medical negligence, corporate negligence, violation of Kentucky’s long-term care resident’s rights statute, Kentucky Revised Statues (KRS) 216.515, and wrongful death.

 GGNSC filed a motion to compel arbitration and dismiss the pending lawsuit or stay the lawsuit pending arbitration.

The circuit court denied GGNSC’s motion ruling that the power-of-attorney document does not encompass the power to execute an arbitration agreement. GGNSC appealed

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4

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2014-CA-000480-MR

NOT TO BE PUBLISHED

APPLE VALLEY SUBDIVISION, PROPERTY OWNERS ASSOCIATION, INC., ET AL.

VS.

OVERLOOK DEVELOPMENT, LLC., ET AL.

OPINION AFFIRMING

** ** ** ** **

BEFORE: ACREE, NICKELL AND TAYLOR, JUDGES.

ACREE, JUDGE: Appellee Louisville/Jefferson County Metro Planning Commission approved a development plan to construct an apartment complex on land abutting Outer Loop Road in Louisville, Kentucky.

Appellant Apple Valley Subdivision Property Owners Association, Inc., is a homeowners’ association of residents across Outer Loop from the subject property.

The remaining Appellants are residents and office-holders of various cities and subdivisions adjacent to or nearby the subject property.

Appellants collectively oppose the project, and appeal a Jefferson Circuit Court opinion and order finding the Commission did not act arbitrarily in approving the proposed development plan. We affirm.

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5

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2014-CA-001957-MR

TO BE PUBLISHED

 

GRANT THORNTON, LLP

VS. YUNG (WILLIAM J.), ET AL.

 OPINION AFFIRMING IN PART, REVERSING IN PART AND REMANDING

MAZE (PRESIDING JUDGE)

CLAYTON (CONCURS)

AND THOMPSON (DISSENTS AND FILES SEPARATE OPINION)

OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING

** ** ** ** **

BEFORE: CLAYTON, MAZE, AND THOMPSON, JUDGES.

MAZE, JUDGE: Grant Thornton, LLP (Grant Thornton) appeals from a judgment of the Kenton Circuit Court in favor of William J. and Martha A. Yung (collectively, the Yungs), and the 1994 William J. Yung Family Trust (the Trust).

 Following a bench trial, the circuit court found that Grant Thornton engaged in extensive fraud and negligence in the course of providing tax and accounting services to the Yungs and the Trust.

 Based on these findings, the trial court awarded the Yungs and the Trust compensatory damages totaling nearly $20 million and punitive damages of $80 million

The trial court’s findings of fraud, gross negligence, and the amount of compensatory damages were supported by substantial evidence and were not clearly erroneous.

 We further find that punitive damages were appropriate under the facts of this case.

 However, we must conclude that the amount of punitive damages was unconstitutionally excessive in light of all relevant factors.

We further find that the trial court properly directed that the judgment shall bear interest at the statutory rate.

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6

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2015-CA-000480-MR

TO BE PUBLISHED

 

BOWEN (JOSHUA) VS. COMMONWEALTH OF KENTUCKY

OPINION AFFIRMING

D. LAMBERT (PRESIDING JUDGE)

DIXON (CONCURS)

AND MAZE (CONCURS)

OPINION AFFIRMING

** ** ** ** **

BEFORE: DIXON, D. LAMBERT AND MAZE, JUDGES.

D. LAMBERT, JUDGE: This matter is before the Court on appeal from a ruling by the Franklin Circuit Court which denied a suppression motion filed by the Appellant, Joshua Bowen. Having reviewed the record and finding no reversible error, we affirm.

Schneble mistakenly believed the warrant noted for the similarly named individual was actually a warrant for Bowen’s arrest.

While walking from his cruiser back to Bowen’s car to return Bowen’s license and send him on his way, Schneble noticed a small baggie on the center hump of the rear floorboard in Bowen’s vehicle. The baggie contained a white substance later revealed as cocaine. Schneble asked Bowen to step out of the vehicle, at which point Bowen shifted the car into gear and sped away. Bowen later abandoned the vehicle and attempted to flee on foot. He was apprehended shortly thereafter.

The vehicle was impounded and searched, revealing a large quantity of cocaine which had been concealed in the gas cap door

, the trial court relied primarily on Herring v. U.S., 555 U.S. 135, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009), to stand for the proposition that negligent mistakes of fact by law enforcement officers do not require suppression of the evidence yielded by a search unless the search rises to the level of a deliberate, reckless, or grossly negligent violation of the Fourth Amendment, or the violation reflects recurring or systemic negligence.

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7

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2015-CA-000655-MR

NOT TO BE PUBLISHED

MULLINS (CHARLES V.), ET AL.

 VS.

CARVER (OFFICER RUSSELL W.), ET AL.

OPINION AFFIRMING

KRAMER (PRESIDING JUDGE)

ACREE (CONCURS)

AND D. LAMBERT (CONCURS)

OPINION AFFIRMING

** ** ** ** **

BEFORE: KRAMER, CHIEF JUDGE; ACREE AND D. LAMBERT, JUDGES.

KRAMER, CHIEF JUDGE: The above-captioned appellants are or were involved in the business of effectuating automobile repossessions in and around Louisville, Kentucky.

 Charles Mullins was a sole proprietor of a business he named “United States Repossession Task Force.” He was the managing member of “Louisville Repossession Task Force Limited Liability Company.

” Derek Denney and Jonathon C. Payne were two of Mullins’ employees (or, as Mullins refers to them, his “field agents”).

In each incident, discussed in depth below, Mullins and his company attempted to effectuate repossessions in the greater Louisville area. Following each incident, Mullins was arrested by officers from the Louisville Metropolitan Police Department (LMPD) for impersonating a peace officer. Denney and Payne, who assisted Mullins during one of these three incidents, were also charged with that offense.

… these appellants were either acquitted or their charges were dismissed; and they—along with Mullin’s limited liability entity—filed a variety of civil claims in Jefferson Circuit Court against the arresting officers in their individual capacities.

They alleged the officers (the above-captioned appellees) were liable for malicious prosecution and had conspired to interfere with Mullins’ repossession business.

The circuit court summarily dismissed these claims, and this appeal followed. Upon review, we affirm.

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8

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2015-CA-000698- ME

2015-CA-001017-ME      2015-CA-001018-ME

NOT TO BE PUBLISHED

B. (H.)

 VS.

B. (A.), ET AL.

 

OPINION AND ORDER AFFIRMING AND DENYING MOTION TO DISMISS

MAZE (PRESIDING JUDGE)

ACREE (CONCURS)

AND KRAMER (CONCURS)

OPINION AND ORDER AFFIRMING AND DENYING MOTION TO DISMISS

** ** ** ** **

BEFORE: KRAMER, CHIEF JUDGE, ACREE AND MAZE, JUDGES.

MAZE, JUDGE: These consolidated appeals arise from various orders in custody, dependency, and domestic violence proceedings before the Kenton Family Court. H.B., the custodian of two minors, appeals from orders in the custody and dependency actions finding that Indiana is the home state of the children, and dismissing those actions following entry of custody orders in Indiana. A.B. and S.B., the parents of the children, appeal from domestic violence orders (DVOs)  entered against them on behalf of H.B. and the children.

Finding no substantial error in any of these matters, we affirm

the petitions relating to P.M.B. and A.M.B., arguing that Kentucky did not have home-state jurisdiction over the children, and that removal of A.M.B. was improper because she came to Kentucky under a civil summons.

The trial court entered an order denying the motion. The court found that it had jurisdiction to enter an ECO order under KRS 1 610.010, KRS 620.060, and KRS 403.828. The court further found that KRS 421.260(1) does not apply as it addresses immunity for witnesses and not parties

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9

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2015-CA-000920-MR

NOT TO BE PUBLISHED

COMMONWEALTH OF KENTUCKY

 VS.

SMITH (JOHN E.), JR.

OPINION AFFIRMING

JONES (PRESIDING JUDGE)

COMBS (CONCURS)

AND NICKELL (CONCURS)

OPINION AFFIRMING

** ** ** ** **

BEFORE: COMBS, JONES, AND NICKELL, JUDGES.

JONES, JUDGE: The Commonwealth of Kentucky appeals from a Franklin Circuit Court order granting John E. Smith, Jr.’s motion to suppress evidence recovered by the police during a traffic stop.

The following undisputed facts were elicited at the suppression hearing: Richard Qualls, a narcotics detective for the Franklin County Sheriff’s Office, was conducting surveillance of Smith after receiving information from multiple confidential sources that he was trafficking in cocaine. Smith was on parole after receiving a ten-year sentence for first-degree trafficking in a controlled substance.

According to Detective Qualls’s sources, Smith sold cocaine from a bar known as the “Brick” in downtown Frankfort, drove a Cadillac as well as a dark colored  SUV, and was employed at Sears.

Deputy Eaton further introduced himself as the K-9 handler for the Franklin County Sheriff’s Office. Deputy Eaton testified that he had the “standard conversation” with Smith that he has when making traffic stops. This conversation consisted of asking Smith whether he had any drugs or guns in the car and whether a search of the vehicle would reveal any contraband. Eaton stated that Smith appeared very nervous when he was asked about the presence of drugs, and that Smith told him that there were no drugs in the vehicle. Deputy Eaton returned to his cruiser, got the dog and began to conduct a K-9 “sniff.” The dog gave a strong indication of a positive alert at the driver’s side door of Smith’s car.

It is well-established that “the Fourth Amendment presents no impediment against a warrantless and suspicionless search of a person on parole.” Bratcher v. Commonwealth, 424 S.W.3d 411, 415 (Ky. 2014).

Stopping an automobile and detaining its occupants constitute a seizure under the Fourth Amendment.

Traffic stops are similar to Terry stops and must be supported by articulable reasonable suspicion of criminal activity. The level of articulable suspicion necessary to justify a stop is considerably less than proof of wrongdoing by preponderance of the evidence.” Chavies v. Commonwealth, 354 S.W.3d 103, 108 (Ky. 2011)

Police officers are permitted to, and regularly do, rely on hearsay in the form of tips from informants, some of whom are anonymous, to justify traffic stops.

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10

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2015-CA-000962-MR

NOT TO BE PUBLISHED

JORDAN (JEFFERY)

VS.

COMMONWEALTH OF KENTUCKY

OPINION AFFIRMING

KRAMER (PRESIDING JUDGE)

CLAYTON (CONCURS)

 AND J. LAMBERT (CONCURS)

OPINION AFFIRMING

** ** ** ** **

BEFORE: KRAMER, CHIEF JUDGE; CLAYTON AND J. LAMBERT, JUDGES.

KRAMER, CHIEF JUDGE: Jeffery Jordan appeals the Clark Circuit Court’s judgment convicting him of Failure to Comply with Sex Offender Registration, First Offense, and Failure of Owner to Maintain Required Insurance/Security, First Offense.

After a careful review of the record, we affirm because Jordan failed to ensure that we had a complete record before us to conduct a meaningful appellate review

 Jordan now appeals, contending that his conviction for failing to register as a sex offender should be reversed because the record failed to establish  that he had to register in Kentucky based on a juvenile offense from Michigan.

1 The Commonwealth argues the appeal should be dismissed because Jordan never moved to dismiss the charge or challenge it through any other motion in the trial court on the basis that he did not have to register as a sex offender in Kentucky based on his offense in Michigan.

The Commonwealth further asserts that because there was no such motion, there was also no adverse determination by the circuit court finding that Jordan was required to register.

we hold that Dickerson has sufficiently preserved for our review the issues in this appeal. It would have been far better practice, of course, if the issues upon which Dickerson’s guilty plea were conditioned had been identified in the record, instead of Dickerson’s counsel’s vague statement that Dickerson’s plea was conditional merely because Dickerson wanted to have “something general” upon which to base an appeal.

Had the issues raised in Dickerson’s appeal not been expressly raised in the circuit court, we would not have considered them on appeal.

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11

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2015-CA-001160-ME

NOT TO BE PUBLISHED

TRENT (JAMES THOMAS)

VS.

TRENT (TEENA LEE)

OPINION VACATING IN PART AND REMANDING

 MAZE (PRESIDING JUDGE)

ACREE (CONCURS)

AND KRAMER (CONCURS)

OPINION VACATING IN PART

AND REMANDING

** ** ** ** **

BEFORE: KRAMER, CHIEF JUDGE; ACREE AND MAZE, JUDGES.

MAZE, JUDGE:  James Trent appeals from a Domestic Violence Order (DVO) which the Fayette Family Court entered against him.

We agree with James that the trial court improperly relied, at least in part, upon allegations of domestic violence which were rejected in a previous DVO proceeding.

Therefore, we must set aside the DVO in part and remand for additional factual findings on whether the remaining evidence was sufficient to support entry of a DVO.

” The preponderance of the evidence standard is met when sufficient evidence establishes that the alleged victim was “more likely than not to have been a victim of domestic violence.” Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky. 1996). KRS 403.720(1) defines “domestic violence and abuse” as “physical injury, serious physical injury, sexual abuse, assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, or assault between family members or members of an unmarried couple[.]”

She also argues that KRS 403.741 permitted the trial court to consider that evidence in determining whether domestic violence and abuse had occurred. We agree with Teena that James clearly opened the door to admission of the evidence. Generally stated, “opening the door” is a form of waiver that occurs when one party’s use of inadmissible evidence justifies the opposing party’s rebuttal of that evidence with equally inadmissible proof. Commonwealth v. Stone, 291 S.W.3d 696, 701-02 (Ky. 2009), citing Purcell v. Commonwealth, 149 S.W.3d 382, 399 (Ky. 2004). While James raised the matter to challenge Teena’s and Z.T.’s credibility, Teena was entitled to present evidence showing that the determination in the previous DVO proceeding did not impair their credibility in this action. However, whether the trial court was entitled to rely on this evidence to find that domestic violence and abuse had occurred is a separate question

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12

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2015-CA-001259-MR

TO BE PUBLISHED

MAUPIN (LATASHA)

VS.

TANKERSLEY (ROLAND)

OPINION AFFIRMING

MAZE (PRESIDING JUDGE)

NICKELL (CONCURS)

AND JONES (DISSENTS AND FILES SEPARATE OPINION)

OPINION AFFIRMING

 ** ** ** ** **

BEFORE: JONES, MAZE, AND NICKELL, JUDGES.

MAZE, JUDGE: Latasha Maupin appeals from the Jackson Circuit Court’s order denying her Motion for Judgment Notwithstanding the Verdict and/or Motion for a New Trial on Damages.

Maupin argues the jury instructions improperly stated the law with respect to a dog owner’s liability for injuries caused by his dog.

Because we find no error, we affirm

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13

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2015-CA-001365-ME

NOT TO BE PUBLISHED

DELANEY (NANCY)

VS.

CISSELL (JOSEPH ERIC)

OPINION AFFIRMING

 MAZE (PRESIDING JUDGE)

ACREE (CONCURS)

AND KRAMER (CONCURS)

OPINION AFFIRMING

** ** ** ** **

BEFORE: KRAMER, CHIEF JUDGE; ACREE AND MAZE, JUDGES.

MAZE, JUDGE: Nancy Delaney (Delaney) appeals from a post-decree order of the Jefferson Family Court which denied her motion to enforce an agreement to modify child support and ordered her to pay a child-support arrearage to Joseph E. Cissell (Cissell).

Delaney argues that the parties had agreed to a suspension of child support for certain periods when she had primary residential custody of the child,1 and to offset a portion of the child’s mobile phone bill against her child support obligation.

 We conclude that the evidence did not compel a finding that such an agreement existed, and therefore the trial court did not abuse its discretion by declining to modify child support. Hence, we affirm.

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14

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2015-CA-001420-ME

NOT TO BE PUBLISHED

MCBRIDE (DEVIN)

VS.

MCBRIDE (AMANDA)

OPINION AFFIRMING

KRAMER (PRESIDING JUDGE)

ACREE (CONCURS)

AND

D. LAMBERT (CONCURS)

OPINION AFFIRMING

** ** ** ** **

BEFORE: KRAMER, CHIEF JUDGE; ACREE AND D. LAMBERT, JUDGES.

KRAMER, CHIEF JUDGE: Devin McBride appeals the Jefferson Family Court’s order denying his motion for additional findings and denying his motion to alter, amend or vacate the court’s judgment concerning the amount of child support he is obligated to pay.

 After a careful review of the record, we affirm because the family court did not abuse its discretion in its allocation of child care expenses or in its application of the child support guidelines.

Devin now appeals, contending that: (a) the family court abused its discretion in setting child support absent findings regarding the reasonableness of the allocation of child care expenses in relation to the parties’ income; and (b) the family court abused its discretion when it failed to deviate from the guidelines when the application of the guidelines is unjust or inappropriate. Amanda did not file a brief on appeal.

II. ANALYSIS We first note that because Amanda failed to file an appellee brief, CR 4 76.12(8)(c) provides as follows: “If the appellee’s brief has not been filed within the time allowed, the court may: (i) accept the appellant’s statement of the facts and issues as correct; (ii) reverse the judgment if appellant’s brief reasonably appears to sustain such action; or (iii) regard the appellee’s failure as a confession of error and reverse the judgment without considering the merits of the case.”

“the child support guidelines in KRS 403.212 shall serve as a rebuttable presumption for the establishment or modification of the amount of child support.” In the present case, the court stated that the base support obligation for the parties’ one child is $322, which is correct because that is the amount shown in the table at KRS 403.212(7) for one child based upon a combined monthly adjusted parental gross income of $1,800, which was the parties’ combined monthly adjusted parental gross income in this case.

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15

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2015-CA-001504-ME

NOT TO BE PUBLISHED

B. (A.)

VS.

CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY, ET AL.

OPINION AFFIRMING

ACREE (PRESIDING JUDGE)

KRAMER (CONCURS)

AND MAZE (CONCURS)

OPINION AFFIRMING ** ** ** ** **

BEFORE: KRAMER, CHIEF JUDGE; ACREE AND MAZE, JUDGES.

ACREE, JUDGE: A.B. (Father) appeals from the Grant Circuit Court’s September 2, 2015 order and judgment involuntarily terminating his parental rights to four of his children, L.M.B., A.L.B., G.E.B., and C.D.B.

Father argues on appeal that the family court’s termination decision cannot stand because

(1) it is not supported by sufficient evidence to warrant termination, and (2) the court erred by failing to find that Father demonstrated by a preponderance of the evidence that the children will not be abused or neglected in the future. After careful review, we affirm

(2) The Cabinet for Health and Family Services became involved with this family in September 2012 after receiving a call from the children’s school that Mother appeared to be under the influence when picking up the children. Upon investigation, the family’s transiency was discovered

Grandfather stated that neither parent was ever a responsible spouse or a parent. They made contact with Grandfather only when they needed money. Grandfather testified that he did not really know what was going on until the Cabinet became involved.

Termination of parental rights is governed by Kentucky Revised Statutes (KRS) 625.090. The statute requires satisfaction by clear and convincing proof of a three-prong test. First, the child must have been found to be an “abused or neglected” child, as defined by KRS 600.020.

 KRS 625.090(1)(a). Second, termination must be in the child’s best interest. KRS 625.090(1)(b). Third, the family court must find at least one ground of parental unfitness. KRS 625.090(2). Consideration of the second and third parts require the family court to analyze several enumerated factors. Even upon satisfaction of all three prongs, the family court may exercise its discretion not to terminate if the parents prove by a preponderance of the evidence that the children will not be abused or neglected in  the future.

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16

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2015-CA-001811-ME

NOT TO BE PUBLISHED

BOSTON (ANNETTE) VS.

TRUSTY (DEBRA)

OPINION AFFIRMING CLAYTON (PRESIDING JUDGE) STUMBO (CONCURS) AND VANMETER (CONCURS)

OPINION AFFIRMING ** ** ** ** ** BEFORE: CLAYTON, STUMBO, AND VANMETER, JUDGES. CLAYTON, JUDGE:

 Annette Boston, an intervening petitioner, in this custody matter, appeals from both the September 3, 2015 findings of fact, conclusions of law, and final custody order of the Caldwell Circuit Court and also its November 10, 2015 order denying her motion for additional findings of fact and an amended judgment.

 Having carefully considered the record and the legal arguments of the parties, we affirm.

This matter is a custody dispute between the maternal grandmother, Debra Trusty, and the maternal aunt, Annette Boston. Both parties are seeking custody of the five children of Karol Boston who died of cancer on August 16, 2014. The children are D.C. (D.O.B. 2/22/01), B.C. (D.O.B. 3/15/02), A.M. (D.O.B. 6/15/04), M.M. (D.O.B. 11/10/05), and S.F. (D.O.B. 3/15/08). 1 Reggie Cavanaugh is the biological father of D.C. and B.C.; Demetrius Steppe is the biological father of A.M.; Ronald Ivory 2 is the biological father of M.M.; and, James Fairrow is the biological father of S.F.

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17

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2016-CA-000049

NOT TO BE PUBLISHED

MYERS (MARK ANTHONY)

VS.

COX INTERIOR, INC., ET AL.

OPINION AFFIRMING

D. LAMBERT (PRESIDING JUDGE)

CLAYTON (CONCURS)

AND NICKELL (CONCURS)

OPINION AFFIRMING

 ** ** ** ** **

BEFORE: CLAYTON, D. LAMBERT AND NICKELL, JUDGES.

D. LAMBERT, JUDGE: Mark Anthony Myers appeals from the December 18, 2015 opinion of the Workers’ Compensation Board (the “Board”) affirming the decision of Hon. Otto Daniel Wolff, IV, Administrative Law Judge (“ALJ”), to dismiss Myers’ benefit claims.

 The Board concluded that the ALJ properly found Myers’ injuries were not related to his work. After review, we affirm. At the administrative hearing, the primary issue was whether Myers sustained a work-related injury

 The ALJ ultimately found Myers’ condition was not work-related after finding that Myers’ was not a credible witness. The ALJ observed that Myers had actually presented to Dr. Stephen Shaw, a chiropractor, on November 14, 2012, complaining of neck and right shoulder pain. This was three days before Myers first reported his injury to Moss.

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Unpublished Opinions

This web site contains both published and unpublished opinions of the Kentucky Supreme Court and Kentucky Court of Appeals. First, opinions that are labeled "NOT TO BE PUBLISHED" shall never be cited or used as authority in any other case in any court of this state. CR 76.28(4)(c). This is true even after the unpublished opinions become final. Secondly, although opinions labeled "TO BE PUBLISHED" may be cited as authority in any court of the Commonwealth of Kentucky, the opinions shall not be cited until all steps in the appellate process have been exhausted and they become final. As of the date Court of Appeals opinions were placed on the web site, none were final.

 

Court Orders:

 

EACH WEEK THE COURT ISSUES IT’S ORDERS GRANTING AND DENYING NUMEROUS MOTIONS

 

SEE THESE ORDERS AT:  CT. OF APPEALS MINUTES     SUPREME COURT MINUTES

 

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KENTUCKY COURT OF APPEALS CASES –

LawReader Synopsis for: September 16, 2016

17 Cases –  4 to be Published

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1

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2012-CA-001801-MR

2012-CA-001801

 

NOT TO BE PUBLISHED

KINDRED HEALTHCARE, INC., ET AL.

NICHOLS (ADRIANNE), ADMINISTRATRIX OF THE ESTATE OF CHARLIE NICHOLS

OPINION AFFIRMING

COMBS (PRESIDING JUDGE)

NICKELL (CONCURS)

AND THOMPSON (CONCURS)

OPINION AFFIRMING

** ** ** ** **

BEFORE: COMBS, NICKELL, AND THOMPSON, JUDGES.

COMBS, JUDGE:: Kindred Healthcare, Inc.; Kindred Nursing Centers Ltd. Partnership d/b/a Harrodsburg Health Care Center; Kindred Nursing Centers East, LLC; Kindred Hospitals Limited Partnership; Kindred Healthcare Operating, Inc.; and Kindred Rehab Services, Inc. d/b/a Peoplefirst Rehabilitation n/k/a Rehabcare (collectively referred to herein as “the nursing home”), appeal from the September 27, 2012, order of the Mercer Circuit Court denying a motion to compel arbitration of the action commenced by Charlie Nichols, a resident of the nursing home, now deceased.

 The nursing home contends that the trial court erred by concluding that Anetha Nichols, the daughter of Charlie Nichols, lacked the necessary authority to bind her father to the terms of an alternative dispute resolution agreement that contained a provision requiring arbitration of the parties’ disputes. After our review, we affirm.

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2

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2013-CA-000245

TO BE PUBLISHED

 

GGNSC FRANKFORT, LLC, ET AL

. VS. RICHARDSON (JAMES), ET AL.

OPINION AFFIRMING THOMPSON (PRESIDING JUDGE) ACREE (CONCURS) AND COMBS (CONCURS)

OPINION AFFIRMING ** ** ** ** ** BEFORE: ACREE, COMBS AND THOMPSON, JUDGES. THOMPSON, JUDGE:

 GGNSC, Frankfort, LLC, d/b/a Golden Living CenterFrankfort and its affiliated entities (GGNSC) appeal from an order of the Franklin Circuit Court denying a motion to compel arbitration and dismiss or to stay the action pending arbitration.

The question presented is whether a power-of-attorney document executed by Fannie H. Lyon authorized her attorney-in-fact to enter into an agreement to arbitrate any claims arising from GGNSC’s alleged negligence while Fannie was a GGNSC resident.

 Based on our Supreme Court’s decision in Extendicare Homes, Inc. v. Whisman, 478 S.W.3d 306 (Ky. 2016), we conclude the power-of-attorney document did not confer such authority and, therefore, the arbitration agreement is not enforceable.

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3

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2013-CA-001795-MR

NOT TO BE PUBLISHED

KINDRED HEALTHCARE, INC., ET AL.

VS. HORTON (CYNTHIA), AS EXECUTRIX OF THE ESTATE OF JAMES E. RICHARDSON,

DECEASED

OPINION AFFIRMING DIXON (PRESIDING JUDGE) MAZE (CONCURS) AND TAYLOR (CONCURS)

OPINION AFFIRMING ** ** ** ** ** BEFORE: DIXON, MAZE, AND TAYLOR, JUDGES. DIXON, JUDGE:

 Kindred Healthcare, Inc.; Kindred Nursing Centers Limited Partnership D/B/A Kindred Transitional Care and Rehabilitation-Hillcrest; Kindred Nursing Centers East, LLC; Kindred Hospitals Limited Partnership; Kindred Healthcare Operating, Inc.; Kindred Rehab Services, Inc., D/B/A Peoplefirst Rehabilitation N/K/A RehabCare (hereinafter collectively “Kindred”) appeal from an order of the Daviess Circuit Court denying its motion to compel arbitration of the personal injury and wrongful death claims initiated by Cynthia Horton, as Executrix of the Estate of James E. Richardson, deceased (“Estate”).

For the reasons set forth herein, we affirm.

After James was appointed administrator of Fannie’s estate, he filed this action in the Franklin Circuit Court alleging negligence, medical negligence, corporate negligence, violation of Kentucky’s long-term care resident’s rights statute, Kentucky Revised Statues (KRS) 216.515, and wrongful death.

 GGNSC filed a motion to compel arbitration and dismiss the pending lawsuit or stay the lawsuit pending arbitration.

The circuit court denied GGNSC’s motion ruling that the power-of-attorney document does not encompass the power to execute an arbitration agreement. GGNSC appealed

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4

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2014-CA-000480-MR

NOT TO BE PUBLISHED

APPLE VALLEY SUBDIVISION PROPERTY OWNERS ASSOCIATION, INC.,

ET AL.

VS. OVERLOOK DEVELOPMENT, LLC., ET AL.

OPINION AFFIRMING ACREE (PRESIDING JUDGE) NICKELL (CONCURS) AND TAYLOR (DISSENTS AND DOES NOT FILE SEPARATE OPINION)

OPINION AFFIRMING ** ** ** ** ** BEFORE: ACREE, NICKELL AND TAYLOR, JUDGES. ACREE, JUDGE:

Appellee Louisville/Jefferson County Metro Planning Commission approved a development plan to construct an apartment complex on land abutting Outer Loop Road in Louisville, Kentucky.

Appellant Apple Valley Subdivision Property Owners Association, Inc., is a homeowners’ association of residents across Outer Loop from the subject property.

The remaining Appellants are residents and office-holders of various cities and subdivisions adjacent to or nearby the subject property.

Appellants collectively oppose the project, and appeal a Jefferson Circuit Court opinion and order finding the Commission did not act arbitrarily in approving the proposed development plan. We affirm.

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5

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2014-CA-001957-MR

TO BE PUBLISHED

 

GRANT THORNTON, LLP

VS. YUNG (WILLIAM J.), ET AL.

 OPINION AFFIRMING IN PART, REVERSING IN PART AND REMANDING MAZE (PRESIDING JUDGE) CLAYTON (CONCURS) AND THOMPSON (DISSENTS AND FILES SEPARATE OPINION)

OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING ** ** ** ** ** BEFORE: CLAYTON, MAZE, AND THOMPSON, JUDGES. MAZE, JUDGE:

 Grant Thornton, LLP (Grant Thornton) appeals from a judgment of the Kenton Circuit Court in favor of William J. and Martha A. Yung (collectively, the Yungs), and the 1994 William J. Yung Family Trust (the Trust).

 Following a bench trial, the circuit court found that Grant Thornton engaged in extensive fraud and negligence in the course of providing tax and accounting services to the Yungs and the Trust.

 Based on these findings, the trial court awarded the Yungs and the Trust compensatory damages totaling nearly $20 million and punitive damages of $80 million

The trial court’s findings of fraud, gross negligence, and the amount of compensatory damages were supported by substantial evidence and were not clearly erroneous.

 We further find that punitive damages were appropriate under the facts of this case.

 However, we must conclude that the amount of punitive damages was unconstitutionally excessive in light of all relevant factors.

We further find that the trial court properly directed that the judgment shall bear interest at the statutory rate.

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6

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2015-CA-000480-MR

TO BE PUBLISHED

 

BOWEN (JOSHUA) VS. COMMONWEALTH OF KENTUCKY

OPINION AFFIRMING D. LAMBERT (PRESIDING JUDGE) DIXON (CONCURS) AND MAZE (CONCURS)

OPINION AFFIRMING ** ** ** ** ** BEFORE: DIXON, D. LAMBERT AND MAZE, JUDGES. D. LAMBERT, JUDGE:

This matter is before the Court on appeal from a ruling by the Franklin Circuit Court which denied a suppression motion filed by the Appellant, Joshua Bowen. Having reviewed the record and finding no reversible error, we affirm.

Schneble mistakenly believed the warrant noted for the similarly named individual was actually a warrant for Bowen’s arrest.

While walking from his cruiser back to Bowen’s car to return Bowen’s license and send him on his way, Schneble noticed a small baggie on the center hump of the rear floorboard in Bowen’s vehicle. The baggie contained a white substance later revealed as cocaine. Schneble asked Bowen to step out of the vehicle, at which point Bowen shifted the car into gear and sped away. Bowen later abandoned the vehicle and attempted to flee on foot. He was apprehended shortly thereafter.

The vehicle was impounded and searched, revealing a large quantity of cocaine which had been concealed in the gas cap door

, the trial court relied primarily on Herring v. U.S., 555 U.S. 135, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009), to stand for the proposition that negligent mistakes of fact by law enforcement officers do not require suppression of the evidence yielded by a search unless the search rises to the level of a deliberate, reckless, or grossly negligent violation of the Fourth Amendment, or the violation reflects recurring or systemic negligence.

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7

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2015-CA-000655-MR

 

NOT TO BE PUBLISHED

MULLINS (CHARLES V.), ET AL.

 VS. CARVER (OFFICER RUSSELL W.), ET AL.

OPINION AFFIRMING KRAMER (PRESIDING JUDGE) ACREE (CONCURS) AND D. LAMBERT (CONCURS)

OPINION AFFIRMING ** ** ** ** ** BEFORE: KRAMER, CHIEF JUDGE; ACREE AND D. LAMBERT, JUDGES. KRAMER, CHIEF JUDGE:

The above-captioned appellants are or were involved in the business of effectuating automobile repossessions in and around Louisville, Kentucky.

 Charles Mullins was a sole proprietor of a business he named “United States Repossession Task Force.” He was the managing member of “Louisville Repossession Task Force Limited Liability Company.

” Derek Denney and Jonathon C. Payne were two of Mullins’ employees (or, as Mullins refers to them, his “field agents”).

In each incident, discussed in depth below, Mullins and his company attempted to effectuate repossessions in the greater Louisville area. Following each incident, Mullins was arrested by officers from the Louisville Metropolitan Police Department (LMPD) for impersonating a peace officer. Denney and Payne, who assisted Mullins during one of these three incidents, were also charged with that offense.

… these appellants were either acquitted or their charges were dismissed; and they—along with Mullin’s limited liability entity—filed a variety of civil claims in Jefferson Circuit Court against the arresting officers in their individual capacities.

They alleged the officers (the above-captioned appellees) were liable for malicious prosecution and had conspired to interfere with Mullins’ repossession business.

The circuit court summarily dismissed these claims, and this appeal followed. Upon review, we affirm.

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8

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2015-CA-000698-ME 2015-CA-001017-ME      2015-CA-001018-ME

 

NOT TO BE PUBLISHED

B. (H.)

 VS.

B. (A.), ET AL.

OPINION AND ORDER AFFIRMING AND DENYING MOTION TO DISMISS MAZE (PRESIDING JUDGE) ACREE (CONCURS) AND KRAMER (CONCURS)

OPINION AND ORDER AFFIRMING AND DENYING MOTION TO DISMISS ** ** ** ** ** BEFORE: KRAMER, CHIEF JUDGE, ACREE AND MAZE, JUDGES. MAZE, JUDGE:
 These consolidated appeals arise from various orders in custody, dependency, and domestic violence proceedings before the Kenton Family Court. H.B., the custodian of two minors, appeals from orders in the custody and dependency actions finding that Indiana is the home state of the children, and dismissing those actions following entry of custody orders in Indiana. A.B. and S.B., the parents of the children, appeal from domestic violence orders (DVOs)  entered against them on behalf of H.B. and the children.

Finding no substantial error in any of these matters, we affirm

the petitions relating to P.M.B. and A.M.B., arguing that Kentucky did not have home-state jurisdiction over the children, and that removal of A.M.B. was improper because she came to Kentucky under a civil summons.

The trial court entered an order denying the motion. The court found that it had jurisdiction to enter an ECO order under KRS 1 610.010, KRS 620.060, and KRS 403.828. The court further found that KRS 421.260(1) does not apply as it addresses immunity for witnesses and not parties

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9

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2015-CA-000920-MR

NOT TO BE  PUBLISHED

COMMONWEALTH OF KENTUCKY

 VS. SMITH (JOHN E.), JR.

 OPINION AFFIRMING JONES (PRESIDING JUDGE) COMBS (CONCURS) AND NICKELL (CONCURS)

OPINION AFFIRMING ** ** ** ** ** BEFORE: COMBS, JONES, AND NICKELL, JUDGES. JONES, JUDGE:

 The Commonwealth of Kentucky appeals from a Franklin Circuit Court order granting John E. Smith, Jr.’s motion to suppress evidence recovered by the police during a traffic stop.

The following undisputed facts were elicited at the suppression hearing: Richard Qualls, a narcotics detective for the Franklin County Sheriff’s Office, was conducting surveillance of Smith after receiving information from multiple confidential sources that he was trafficking in cocaine. Smith was on parole after receiving a ten-year sentence for first-degree trafficking in a controlled substance.

According to Detective Qualls’s sources, Smith sold cocaine from a bar known as the “Brick” in downtown Frankfort, drove a Cadillac as well as a dark colored  SUV, and was employed at Sears.

Deputy Eaton further introduced himself as the K-9 handler for the Franklin County Sheriff’s Office. Deputy Eaton testified that he had the “standard conversation” with Smith that he has when making traffic stops. This conversation consisted of asking Smith whether he had any drugs or guns in the car and whether a search of the vehicle would reveal any contraband. Eaton stated that Smith appeared very nervous when he was asked about the presence of drugs, and that Smith told him that there were no drugs in the vehicle. Deputy Eaton returned to his cruiser, got the dog and began to conduct a K-9 “sniff.” The dog gave a strong indication of a positive alert at the driver’s side door of Smith’s car.

It is well-established that “the Fourth Amendment presents no impediment against a warrantless and suspicionless search of a person on parole.” Bratcher v. Commonwealth, 424 S.W.3d 411, 415 (Ky. 2014).

Stopping an automobile and detaining its occupants constitute a seizure under the Fourth Amendment. Traffic stops are similar to Terry stops and must be supported by articulable reasonable suspicion of criminal activity. The level of articulable suspicion necessary to justify a stop is considerably less than proof of wrongdoing by preponderance of the evidence.” Chavies v. Commonwealth, 354 S.W.3d 103, 108 (Ky. 2011)

Police officers are permitted to, and regularly do, rely on hearsay in the form of tips from informants, some of whom are anonymous, to justify traffic stops.

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10

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2015-CA-000962-MR

NOT TO BE PUBLISHED

JORDAN (JEFFERY) VS. COMMONWEALTH OF KENTUCKY

OPINION AFFIRMING KRAMER (PRESIDING JUDGE) CLAYTON (CONCURS) AND J. LAMBERT (CONCURS)

OPINION AFFIRMING ** ** ** ** ** BEFORE: KRAMER, CHIEF JUDGE; CLAYTON AND J. LAMBERT, JUDGES. KRAMER, CHIEF JUDGE:

Jeffery Jordan appeals the Clark Circuit Court’s judgment convicting him of Failure to Comply with Sex Offender Registration, First Offense, and Failure of Owner to Maintain Required Insurance/Security, First Offense.

After a careful review of the record, we affirm because Jordan failed to ensure that we had a complete record before us to conduct a meaningful appellate review

 Jordan now appeals, contending that his conviction for failing to register as a sex offender should be reversed because the record failed to establish  that he had to register in Kentucky based on a juvenile offense from Michigan.

1 The Commonwealth argues the appeal should be dismissed because Jordan never moved to dismiss the charge or challenge it through any other motion in the trial court on the basis that he did not have to register as a sex offender in Kentucky based on his offense in Michigan.

The Commonwealth further asserts that because there was no such motion, there was also no adverse determination by the circuit court finding that Jordan was required to register.

we hold that Dickerson has sufficiently preserved for our review the issues in this appeal. It would have been far better practice, of course, if the issues upon which Dickerson’s guilty plea were conditioned had been identified in the record, instead of Dickerson’s counsel’s vague statement that Dickerson’s plea was conditional merely because Dickerson wanted to have “something general” upon which to base an appeal.

Had the issues raised in Dickerson’s appeal not been expressly raised in the circuit court, we would not have considered them on appeal.

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11

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2015-CA-001160-ME

NOT TO BE PUBLISHED

TRENT (JAMES THOMAS)

VS.

TRENT (TEENA LEE)

OPINION VACATING IN PART AND REMANDING MAZE (PRESIDING JUDGE) ACREE (CONCURS) AND KRAMER (CONCURS)

OPINION VACATING IN PART AND REMANDING ** ** ** ** ** BEFORE: KRAMER, CHIEF JUDGE; ACREE AND MAZE, JUDGES. MAZE, JUDGE:

 James Trent appeals from a Domestic Violence Order (DVO) which the Fayette Family Court entered against him.

We agree with James that the trial court improperly relied, at least in part, upon allegations of domestic violence which were rejected in a previous DVO proceeding.

Therefore, we must set aside the DVO in part and remand for additional factual findings on whether the remaining evidence was sufficient to support entry of a DVO.

” The preponderance of the evidence standard is met when sufficient evidence establishes that the alleged victim was “more likely than not to have been a victim of domestic violence.” Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky. 1996). KRS 403.720(1) defines “domestic violence and abuse” as “physical injury, serious physical injury, sexual abuse, assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, or assault between family members or members of an unmarried couple[.]”

She also argues that KRS 403.741 permitted the trial court to consider that evidence in determining whether domestic violence and abuse had occurred. We agree with Teena that James clearly opened the door to admission of the evidence. Generally stated, “opening the door” is a form of waiver that occurs when one party’s use of inadmissible evidence justifies the opposing party’s rebuttal of that evidence with equally inadmissible proof. Commonwealth v. Stone, 291 S.W.3d 696, 701-02 (Ky. 2009), citing Purcell v. Commonwealth, 149 S.W.3d 382, 399 (Ky. 2004). While James raised the matter to challenge Teena’s and Z.T.’s credibility, Teena was entitled to present evidence showing that the determination in the previous DVO proceeding did not impair their credibility in this action. However, whether the trial court was entitled to rely on this evidence to find that domestic violence and abuse had occurred is a separate question

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12

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2015-CA-001259-MR

TO BE PUBLISHED

 

MAUPIN (LATASHA) VS.

 TANKERSLEY (ROLAND)

 OPINION AFFIRMING MAZE (PRESIDING JUDGE) NICKELL (CONCURS) AND JONES (DISSENTS AND FILES SEPARATE OPINION)

OPINION AFFIRMING ** ** ** ** ** BEFORE: JONES, MAZE, AND NICKELL, JUDGES. MAZE, JUDGE:

Latasha Maupin appeals from the Jackson Circuit Court’s order denying her Motion for Judgment Notwithstanding the Verdict and/or Motion for a New Trial on Damages.

Maupin argues the jury instructions improperly stated the law with respect to a dog owner’s liability for injuries caused by his dog.

Because we find no error, we affirm

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13

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2015-CA-001365-ME

NOT TO BE PUBLISHED

DELANEY (NANCY) VS.

CISSELL (JOSEPH ERIC)

OPINION AFFIRMING MAZE (PRESIDING JUDGE) ACREE (CONCURS) AND KRAMER (CONCURS)

OPINION AFFIRMING ** ** ** ** ** BEFORE: KRAMER, CHIEF JUDGE; ACREE AND MAZE, JUDGES. MAZE, JUDGE:

Nancy Delaney (Delaney) appeals from a post-decree order of the Jefferson Family Court which denied her motion to enforce an agreement to modify child support and ordered her to pay a child-support arrearage to Joseph E. Cissell (Cissell).

Delaney argues that the parties had agreed to a suspension of child support for certain periods when she had primary residential custody of the child,1 and to offset a portion of the child’s mobile phone bill against her child support obligation.

 We conclude that the evidence did not compel a finding that such an agreement existed, and therefore the trial court did not abuse its discretion by declining to modify child support. Hence, we affirm.

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14

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2015-CA-001420-ME

NOT TO BE PUBLISHED

MCBRIDE (DEVIN) VS.

 MCBRIDE (AMANDA)

OPINION AFFIRMING KRAMER (PRESIDING JUDGE) ACREE (CONCURS) AND D. LAMBERT (CONCURS)

OPINION AFFIRMING ** ** ** ** ** BEFORE: KRAMER, CHIEF JUDGE; ACREE AND D. LAMBERT, JUDGES. KRAMER, CHIEF JUDGE:

 Devin McBride appeals the Jefferson Family Court’s order denying his motion for additional findings and denying his motion to alter, amend or vacate the court’s judgment concerning the amount of child support he is obligated to pay.

 After a careful review of the record, we affirm because the family court did not abuse its discretion in its allocation of child care expenses or in its application of the child support guidelines.

Devin now appeals, contending that: (a) the family court abused its discretion in setting child support absent findings regarding the reasonableness of the allocation of child care expenses in relation to the parties’ income; and (b) the family court abused its discretion when it failed to deviate from the guidelines when the application of the guidelines is unjust or inappropriate. Amanda did not file a brief on appeal.

II. ANALYSIS We first note that because Amanda failed to file an appellee brief, CR 4 76.12(8)(c) provides as follows: “If the appellee’s brief has not been filed within the time allowed, the court may: (i) accept the appellant’s statement of the facts and issues as correct; (ii) reverse the judgment if appellant’s brief reasonably appears to sustain such action; or (iii) regard the appellee’s failure as a confession of error and reverse the judgment without considering the merits of the case.”

“the child support guidelines in KRS 403.212 shall serve as a rebuttable presumption for the establishment or modification of the amount of child support.” In the present case, the court stated that the base support obligation for the parties’ one child is $322, which is correct because that is the amount shown in the table at KRS 403.212(7) for one child based upon a combined monthly adjusted parental gross income of $1,800, which was the parties’ combined monthly adjusted parental gross income in this case.

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15

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2015-CA-001504-ME 2015-CA-001505-ME 2015-CA-001506-ME 2015-CA-001507-ME

 

NOT TO BE PUBLISHED

B. (A.)

VS.

CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY, ET AL.

OPINION AFFIRMING ACREE (PRESIDING JUDGE) KRAMER (CONCURS) AND MAZE (CONCURS)

OPINION AFFIRMING ** ** ** ** ** -2- BEFORE: KRAMER, CHIEF JUDGE; ACREE AND MAZE, JUDGES. ACREE, JUDGE:

A.B. (Father) appeals from the Grant Circuit Court’s September 2, 2015 order and judgment involuntarily terminating his parental rights to four of his children, L.M.B., A.L.B., G.E.B., and C.D.B. 1

Father argues on appeal that the family court’s termination decision cannot stand because (1) it is not supported by sufficient evidence to warrant termination, and (2) the court erred by failing to find that Father demonstrated by a preponderance of the evidence that the children will not be abused or neglected in the future. After careful review, we affirm

. 2 The Cabinet for Health and Family Services became involved  with this family in September 2012 after receiving a call from the children’s school that Mother appeared to be under the influence when picking up the children. Upon investigation, the family’s transiency was discovered

Grandfather stated that neither parent was ever a responsible spouse or a parent. They made contact with Grandfather only when they needed money. Grandfather testified that he did not really know what was going on until the Cabinet became involved.

Termination of parental rights is governed by Kentucky Revised Statutes (KRS) 625.090. The statute requires satisfaction by clear and convincing proof of a three-prong test. First, the child must have been found to be an “abused or neglected” child, as defined by KRS 600.020.

 KRS 625.090(1)(a). Second, termination must be in the child’s best interest. KRS 625.090(1)(b). Third, the family court must find at least one ground of parental unfitness. KRS 625.090(2). Consideration of the second and third parts require the family court to analyze several enumerated factors. Even upon satisfaction of all three prongs, the family court may exercise its discretion not to terminate if the parents prove by a preponderance of the evidence that the children will not be abused or neglected in  the future.

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16

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2015-CA-001811-ME

 

NOT TO BE PUBLISHED

BOSTON (ANNETTE) VS.

TRUSTY (DEBRA)

OPINION AFFIRMING CLAYTON (PRESIDING JUDGE) STUMBO (CONCURS) AND VANMETER (CONCURS)

OPINION AFFIRMING ** ** ** ** ** BEFORE: CLAYTON, STUMBO, AND VANMETER, JUDGES. CLAYTON, JUDGE:

 Annette Boston, an intervening petitioner, in this custody matter, appeals from both the September 3, 2015 findings of fact, conclusions of law, and final custody order of the Caldwell Circuit Court and also its November 10, 2015 order denying her motion for additional findings of fact and an amended judgment.

 Having carefully considered the record and the legal arguments of the parties, we affirm.

This matter is a custody dispute between the maternal grandmother, Debra Trusty, and the maternal aunt, Annette Boston. Both parties are seeking custody of the five children of Karol Boston who died of cancer on August 16, 2014. The children are D.C. (D.O.B. 2/22/01), B.C. (D.O.B. 3/15/02), A.M. (D.O.B. 6/15/04), M.M. (D.O.B. 11/10/05), and S.F. (D.O.B. 3/15/08). 1 Reggie Cavanaugh is the biological father of D.C. and B.C.; Demetrius Steppe is the biological father of A.M.; Ronald Ivory 2 is the biological father of M.M.; and, James Fairrow is the biological father of S.F.

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17

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2016-CA-000049-WC

NOT TO BE PUBLISHED

MYERS (MARK ANTHONY)

VS.

COX INTERIOR, INC., ET AL.

OPINION AFFIRMING D. LAMBERT (PRESIDING JUDGE) CLAYTON (CONCURS) AND NICKELL (CONCURS)

OPINION AFFIRMING ** ** ** ** ** BEFORE: CLAYTON, D. LAMBERT AND NICKELL, JUDGES. D. LAMBERT, JUDGE:

Mark Anthony Myers appeals from the December 18, 2015 opinion of the Workers’ Compensation Board (the “Board”) affirming the decision of Hon. Otto Daniel Wolff, IV, Administrative Law Judge (“ALJ”), to dismiss Myers’ benefit claims.

 The Board concluded that the ALJ properly found Myers’ injuries were not related to his work. After review, we affirm. At the administrative hearing, the primary issue was whether Myers sustained a work-related injury

 The ALJ ultimately found Myers’ condition was not work-related after finding that Myers’ was not a credible witness. The ALJ observed that Myers had actually presented to Dr. Stephen Shaw, a chiropractor, on November 14, 2012, complaining of neck and right shoulder pain. This was three days before Myers first reported his injury to Moss.

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Unpublished Opinions

This web site contains both published and unpublished opinions of the Kentucky Supreme Court and Kentucky Court of Appeals. First, opinions that are labeled "NOT TO BE PUBLISHED" shall never be cited or used as authority in any other case in any court of this state. CR 76.28(4)(c). This is true even after the unpublished opinions become final. Secondly, although opinions labeled "TO BE PUBLISHED" may be cited as authority in any court of the Commonwealth of Kentucky, the opinions shall not be cited until all steps in the appellate process have been exhausted and they become final. As of the date Court of Appeals opinions were placed on the web site, none were final.

 

Court Orders:

 

EACH WEEK THE COURT ISSUES IT’S ORDERS GRANTING AND DENYING NUMEROUS MOTIONS

 

SEE THESE ORDERS AT:  CT. OF APPEALS MINUTES     SUPREME COURT MINUTES

 

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CIVIL CASES & CRIMINAL CASES

1

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2011-CA-001657-MR

TO BE PUBLISHED

 

RESNICK (ROBERT), ET AL.

 VS.

PATTERSON (CHARLES OMER)

OPINION VACATING AND REMANDING

J. LAMBERT (PRESIDING JUDGE)

KRAMER (CONCURS)

AND THOMPSON (DISSENTS AND WILL NOT FILE SEPARATE OPINION)

OPINION

VACATING AND REMANDING

 

** ** ** ** **

 

BEFORE:  KRAMER, CHIEF JUDGE; J. LAMBERT AND THOMPSON, JUDGES.

 

LAMBERT, JUDGE: Robert Resnick initially appealed from an August 2011 order of the Bullitt Circuit Court entering summary judgment in favor of Charles Patterson.  Upon review, this Court affirmed the trial court’s entry of summary judgment in Patterson’s favor.  Resnick filed a motion for discretionary review with the Supreme Court of Kentucky.  By order dated March 13, 2013, the Supreme Court ordered this Court’s opinion be held in abeyance pending final resolution of Miami Management Company v. Bruner, 2012-SC-000318.  On December 10, 2015, the Supreme Court granted Resnick’s motion for discretionary review, vacated our prior opinion, and remanded the case to this Court for consideration in light of Carter v. Bullitt Host, LLC, 471 S.W.3d 288 (Ky. 2015); Shelton v. Kentucky Easter Seals Society, Inc., 413 S.W.3d 901 (Ky. 2013); and Dick’s Sporting Goods, Inc. v. Webb, 413 S.W.3d 891 (Ky. 2013).  After consideration of these cases, we vacate the trial court’s August 15, 2011, order granting summary judgment to Patterson and remand for proceedings consistent with this opinion.    

On January 29, 2008, the appellant, Robert Resnick, received a phone call from his mother, Marilyn McQuillen, asking him to help her move out of the residence she shared with her boyfriend, Charles Patterson.  McQuillen had been living with Patterson for approximately four years at that time, but their relationship and living situation appears to have been somewhat tumultuous.  In the days prior to the phone call, McQuillen and Patterson had fought, and McQuillen had left to stay with a friend for a few days. 

On December 19, 2008, Resnick filed suit against Patterson, alleging negligence and failure to warn. On August 15, 2011, the Bullitt Circuit Court entered summary judgment in favor of Patterson, finding that the hole and/or tree stump Resnick tripped on was an open and obvious natural hazard, and, as such, Patterson had no duty to warn Resnick of its existence.  The trial court held that Patterson had no knowledge that Resnick would be on the property and therefore could not anticipate the harm that befell him.  In our initial opinion, we acknowledged the confusion the Supreme Court’s opinion in Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010), created regarding the interplay of contributory negligence and comparative fault.  Subsequent to our opinion, which was rendered on August 10, 2012, the Supreme Court rendered Shelton v. Kentucky Easter Seals Society, Inc, supra; Dick’s Sporting Goods v. Webb, supra; and Carter v. Bullitt Host, LLC, supra.  We now reexamine whether summary judgment was appropriate in light of the Supreme Court’s more recent analysis of premises liability. 

In McIntosh, the Kentucky Supreme Court held that the primary focus in determining whether a duty exists is on foreseeability

 

The principles stated in the Restatement (Second) of Torts § 343A relate directly to foreseeability and facilitate consideration of the duty issue.  Whether the danger was known and appreciated by the plaintiff, whether the risk was obvious to a person exercising reasonable perception, intelligence, and judgment, and whether there was some other reason for the defendant to foresee the harm, are all relevant considerations that provide more balance and insight to the analysis than merely labeling a particular risk “open and obvious.”  In sum, the analysis recognizes that a risk of harm may be foreseeable and unreasonable, thereby imposing a duty on the defendant, despite its potentially open and obvious nature. 

 

Coln v. City of Savannah, 966 S.W.2d 34, 42 (Tenn. 1998).

 

McIntosh, supra, at 390-91. The Court criticized the open and obvious doctrine. While the mats that Webb stepped on were wet and constituted an open and obvious hazard, when Webb stepped onto tile that she believed to be dry but was not, the danger was not open and obvious anymore, as Webb did not appreciate the danger involved. 

 

The Court reasoned:

Supporters of continued applicability of the Manis rule might argue that the comparative-fault statute only requires allocation of fault among the parties if a party is actually at fault, and that the oil company in Manis and the lodge in Corbin Motor Lodge could not be at fault because they had no duty to the plaintiffs.  But the legal reason for a no-duty finding—plaintiffs were aware of the danger and thus caused their own injuries by proceeding—is nothing more than applying a contributory-negligence standard, which is no longer the law of this state. 471 S.W.3d at 296.

 

Accordingly, we vacate the Bullitt Circuit Court’s August 15, 2011, entry of summary judgment and remand for proceedings consistent with this opinion, specifically for an analysis of the comparative fault, if any, of both Resnick and Patterson and whether summary judgment was appropriate under the circumstances.  Steelvest v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky. 1991).

                         

KRAMER, CHIEF JUDGE, CONCURS.

THOMPSON, JUDGE, DISSENTS

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2

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2014-CA-000012-MR

TO BE PUBLISHED

BURKHEAD

(CARL), JR.

VS.

 DAVIS (LORI),

 ET AL.

OPINION AFFIRMING

NICKELL (PRESIDING JUDGE)

ACREE (CONCURS)

AND TAYLOR (CONCURS)

OPINION – AFFIRMING

** ** ** ** **

 

BEFORE:  ACREE, NICKELL AND TAYLOR, JUDGES.

 

NICKELL, JUDGE:  Carl Burkhead, Jr., has appealed from the Bullitt Circuit Court’s August 20, 2013, judgment entered following a jury trial awarding Marty Davis, Lorie Davis and Yvonne Davis Hoover compensatory and punitive damages on their malicious prosecution claim against him.  The Davises and Hoover have cross-appealed from the same judgment.  Following a careful review of the record, the briefs and the law, we affirm.

Yvonne owned a home located on Ellis Lane in Taylorsville, Kentucky, where her son Marty resided with his wife, Lorie.  Burkhead resided next door to the Davises.  The neighborly relationship started off relatively well when the Davises moved into the residence and remained so for several years.  In 2000, Marty constructed a detached garage on his property.  He and Burkhead spoke often, and no complaint was raised about the construction.  During the building phase, Marty assisted Burkhead in clearing and grading a portion of Burkhead’s lot to construct a similar garage.  In the following years, however, the relationship between the neighbors became more and more acrimonious.  Apparently, the friction began when the Davises refused Burkhead’s request that they pay a portion of the cost of trimming a tree away from overhead power lines—an amount of approximately $20.00.

Following this incident, Burkhead began a series of complaints to government agencies regarding the Davis property, initially alleging the property was overgrown and needed to be “cleaned up.”  Marty was cited by the Bullitt County Planning and Zoning Department and ordered to clean up the property.  Marty took appropriate action to comply.  Burkhead then began complaining an unauthorized automobile repair business was being operated in the garage[1] and overpowering paint fumes and overspray were interfering with his enjoyment of his own property.  These complaints generated several investigations by the Bullitt County Enforcement Division of Solid Waste Management and the Kentucky Department of Environmental Protection.  No violations were noted.

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3

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2014-CA-000984-MR

TO BE PUBLISHED

THOMAS (KIMBERLY)

VS.

THOMAS (LOUIS)

OPINION REVERSING AND REMANDING

NICKELL (PRESIDING JUDGE)

VANMETER (CONCURS)

AND MAZE (CONCURS AND FILES SEPARATE OPINION)

OPINION

REVERSING AND REMANDING

 

** ** ** ** **

 

BEFORE:  MAZE, NICKELL AND VANMETER, JUDGES.

 

NICKELL, JUDGE:  Kimberly Thomas appeals from a judgment and three orders entered by the Hardin Circuit Court.  All four items are associated with a four-day jury trial resulting from a civil complaint filed against her by Louis Thomas, her ex-husband, alleging that more than two decades after their divorce she unduly influenced him to:  execute deeds conveying to her a half-interest in three pieces of property he owned individually; name her as his Attorney-in-Fact pursuant to a Power of Attorney; and, add her name to his single account at the Fort Knox Federal Credit Union from which she transferred more than $21,000 into her own account.  After careful review of the briefs, the law and the record, we reverse and remand for a new trial.

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4

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2014–CA–001199–MR

NOT TO BE PUBLISHED

HOPPIUS (ALANYA)

VS.

METROPOLITAN LIFE INSURANCE COMPANY

OPINION AND ORDER DISMISSING

 D. LAMBERT (PRESIDING JUDGE)

KRAMER (CONCURS)

AND STUMBO (CONCURS)

OPINION AND ORDER – DISMISSING

 BEFORE: D. LAMBERT, KRAMER, AND STUMBO, JUDGES.

D. LAMBERT, JUDGE: This matter is on appeal from an order entered by the Jefferson Circuit Court which set aside a portion of damages awarded to the Appellant, Alanya  Hoppius, upon motion by the Appellant, Metropolitan Life Insurance Company (hereinafter “Met Life”). For the reasons discussed herein, we dismiss the appeal.

 

Hoppius filed suit on September 10, 2012, alleging several causes of action relating to an allegedly wrongful denial of contractual and employment wage payments.

 

Hoppius specified that the claims arise solely under state law, going as far as to assert, in paragraph two of the complaint, that “Plaintiff expressly does not assert any claim arising under federal law” (emphasis in original). Hoppius was an employee of M-I, LLC, whose short-term disability benefits plan was administered by Met Life.

 

Among the claims asserted by Hoppius was a claim for tortious interference with contract, stemming from Met Life’s allegedly intentional inducement of M-I, LLC, to breach its contract by” failing to provide an accurate review of Ms. Hoppius’ short term disability wage payment claim. . ..” In her brief to this Court, Hoppius contends this alleged action prejudiced her ability to receive long term disability benefits.

 

Met Life failed to answer the complaint within 20 days.

 

Notwithstanding this default, Hoppius served Met Life with requests for admissions on December 27, 2012. Among the requests served on Met Life was Request for Admission No. 3, which asked Met Life to admit the following: “Ms. Hoppius’ damages resulting from Met Life’s intentional interference with her short-term disability benefits total $543,175, representing the value of her long-term disability insurance policy insured by Met Life.”

II. ANALYSIS

 

1.     THIS COURT LACKS JURISDICTION TO ENTERTAIN THIS A PPEAL

 

The facts here do not support this Court exercising jurisdiction. The first element is unquestionably fulfilled, as the entry of the final and appealable default judge-

ment occurred on April 22, 2013, and the motion to set it aside was filed on May 7, 2014. However, it is equally beyond question that the trial court did not disrupt the judgment based on extraordinary circumstances from 60.02(f).

 

The trial court’s order clearly reflects that the basis for granting the motion to set aside a portion of the award was the prevention of an inequitable result as

contemplated in CR 60.02(e). Thus, the exception does not apply here, and the general rule controls to preclude this Court from entertaining the appeal at this time.

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5

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2014-CA-001321-MR

NOT TO BE PUBLISHED

HARDIN (LATONYA)

VS.

 HUMANA, INC

 OPINION AFFIRMING

JONES (PRESIDING JUDGE)

ACREE (CONCURS)

 AND CLAYTON (CONCURS)

OPINION – AFFIRMING

** ** ** ** **

BEFORE:  acree, clayton, and jones, JUDGES.

JONES, JUDGE: The Appellant, Latonya Hardin, appeals from the Jefferson Circuit Court’s order granting summary judgment in favor of the Appellee, Humana, Inc.  For the reasons set forth below, we affirm.      

I. Factual and Procedural Background

In 2012, Latonya Hardin (“Hardin”) was a full-time employee of Humana, Inc. (“Humana”).  While employed by Humana, Hardin received a summons from the Administrative Office of the Courts indicating that she had been selected for jury duty in Jefferson County, Kentucky.  After receiving the summons, Hardin notified Humana that she had been selected for jury duty and that she would need “approximately two weeks off.” 

Hardin was “on call” for jury service on both January 19 and 27, 2012.  It is undisputed that being “on call” did not require Hardin to personally report to the courthouse.  It is likewise undisputed that Hardin did not report to work at Humana on either of those dates, having previously informed her supervisor that she would be out for jury duty.                                                            

On February 3, 2012, after reviewing information provided by the court system and discovering that Hardin was not present for jury duty on either January 19 or January 27, 2012, and that she did not report to work on those dates, Humana terminated Hardin for violating its “Critical Offense Policy.”  A little over two years later, on February 10, 2014, Hardin filed suit against Humana.  In her complaint, Hardin alleged that Humana illegally terminated her for missing work for jury duty in violation of KRS[2] 337.415. Humana moved to dismiss the complaint on the basis that it was time-barred.

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6

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2014-CA-001917-MR

NOT TO BE PUBLISHED

HALL (AUBREY)

VS.

 KINZER INVESTMENT REALTY, LTD

OPINION AND ORDER DISMISSING

MAZE (PRESIDING JUDGE)

DIXON (CONCURS)

 AND TAYLOR (CONCURS)

OPINION AND ORDER

DISMISSING

 

** ** ** ** **

 

BEFORE:  DIXON, MAZE, AND TAYLOR, JUDGES.

MAZE, JUDGE:  Appellant, Aubrey Hall, appeals from an order of the Letcher Circuit Court ordering the sale of and distribution of proceeds from undeveloped real property in which Hall owned a share.  Hall argues that the trial court lacked jurisdiction to enter this order because an appeal of the court’s prior Final Judgment and Order of Sale was still pending before this Court.  However, Hall failed to name indispensable parties to this appeal when he filed his notice of appeal.  Hence, we dismiss.

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7

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2015-CA-000538–MR

NOT TO BE PUBLISHED

KERINS (PATRICIA A. DEPALMO), ET AL.

VS.

ESTATE OF ELAINE MARIE BUKOWSKI, ET AL.

OPINION AFFIRMING IN PART, REVERSING IN PART AND REMANDING

STUMBO (PRESIDING JUDGE)

D. LAMBERT (CONCURS)

AND THOMPSON (CONCURS)

OPINION

AFFIRMING IN PART, REVERSING IN PART,
AND REMANDING

 

** ** ** ** **

 

BEFORE:  D. LAMBERT, STUMBO AND THOMPSON, JUDGES.

STUMBO, JUDGE:  Patricia Kerins and Jeanine DePalmo appeal from multiple orders of the Jefferson Circuit Court.  Those orders granted default judgments against Appellants and in favor of Michele Wojtyna on her counterclaims and also granted summary judgment in favor of the Estate of Elaine Marie Bukowski.  We find the trial court did not err in granting the default

judgments, but did err in granting summary judgment.

In 2012, Elaine Bukowski passed away in Louisville, Kentucky without a will and without a spouse, children, living parents, or living siblings.  A probate action was initiated in Jefferson District Court and it was estimated that her estate was worth approximately two million dollars.  Ms. Bukowski had living relatives in the form of aunts, uncles, and cousins.  Those relatives are heirs and are entitled to a portion of her estate.

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8

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2015-CA-000676-MR

TO BE PUBLISHED

LONGSHORE (ALEXANDER)

VS.

KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION, ET AL.

OPINION REVERSING AND REMANDING

D. LAMBERT (PRESIDING JUDGE)

DIXON (CONCURS) AND

MAZE (DISSENTS AND FILES A SEPARATE OPINION)

Alexander Longshore comes before this Court seeking reversal of the Campbell Circuit Court’s dismissal of his petition for review of an administrative decision by the Kentucky Unemployment Insurance Commission (hereinafter, “the Commission”).  Longshore argues he substantially complied withthe verification requirements mandated by KRS 341.450(1), or in the alternative, that the trial court erred in denying his motion to file an amended petition.  We find that Longshore exhibited sufficient effort to comply with the statutory provisions to trigger the application of the doctrine of substantial compliance, and therefore reverse.

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9

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2015-CA-000703–MR

NOT TO BE PUBLISHED

GABBARD-WRIGHT (ANGELA MARIE)

VS.

WRIGHT (WILLIAM ALEXANDER)

OPINION AFFIRMING

VANMETER (PRESIDING JUDGE)

COMBS (CONCURS)

AND

THOMPSON (CONCURS)