2012 COA: Jan. 13, 2012 COA Minutes

  Jan. 13, 2012 COA Minutes —  Nos. 26-58 (33 decisions; 3 published)

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PUBLISHED DECISIONS OF COA:

33. REAL PROPERTY. CONVENANCE. CHAMPTERY.
HENNINGER (MARY KAY), ET AL.
VS.
BREWSTER (SUZY)
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
CLAYTON (CONCURS) AND WINE (CONCURS)
2010-CA-001110-MR
TO BE PUBLISHED
PULASKI

"ACREE, JUDGE: Appellants Mary Kay and Brent Henninger appeal the Pulaski Circuit Court’s entry of summary judgment in favor of Appellee Suzy Brewster claiming the circuit court erred in determining no genuine issues of material fact exist with respect to Appellee’s champerty defense under Kentucky Revised Statute (KRS) 372.070(1). Finding no error, we affirm."

40.  CRIMINAL LAW
LUKJAN (SUSAN KAY)
VS.
COMMONWEALTH OF KENTUCKY
OPINION REVERSING AND REMANDING
ACREE (PRESIDING JUDGE)
TAYLOR (CONCURS IN RESULT ONLY) AND VANMETER (CONCURS)
2010-CA-001509-MR
TO BE PUBLISHED
JEFFERSON

"ACREE, JUDGE: Susan Lukjan appeals the July 23, 2010 judgment of the Jefferson Circuit Court by which she was convicted of arson, burning personal property to defraud an insurer, and committing a fraudulent insurance act over $300;1 the judgment followed a jury trial and sentenced Lukjan to serve a total of twelve years of imprisonment. The bases for her appeal are a variety of trial errors  outlined below. Finding certain of her arguments persuasive, we reverse the conviction and remand the matter to the circuit court for a new trial."

"Ordinarily, a trial court’s determination as to whether a witness is qualified to give expert testimony under Kentucky Rules of Evidence (KRE) 702 is subject to an abuse of discretion standard of review. See Farmland Mut. Ins. Co. v. Johnson, 36 S.W.3d 368, 378 (Ky. 2000); Fugate v. Commonwealth, 993 S.W.2d 931, 935 (Ky. 1999); Murphy by Murphy v. Montgomery Elevator Co., 957 S.W.2d 297, 299 (Ky. App. 1997). “An abuse of discretion occurs when a ‘trial judge’s decision [is] arbitrary, unreasonable, unfair, or unsupported by sound legal principles.’” Farmland Mut. Ins. Co., 36 S.W.3d at 378 (quoting Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000))."

"In this instance, however, we are reviewing the circuit court’s interpretation of a statute and do so de novo. Bob Hook Chevrolet Isuzu, Inc. v. Commonwealth Transp. Cabinet, 983 S.W.2d 488, 490 (Ky. 1998). The circuit court’s interpretation of the statutes in question, therefore, is owed no deference."

"Accordingly, we reverse the order of the circuit court finding Hicks could not testify on the basis of KRS 329A.015, reverse Lukjan’s conviction, and remand the case for a new trial. On remand, the circuit court must consider whether any of Lukjan’s proffered experts, including Hicks, qualify, based on the guidelines found in KRE 702 and accompanying caselaw. Under those standards, licensure is not necessary, but may be a factor. See Fugate v. Commonwealth, 993 S.W.2d 931 at 935.5"

"Without the Commonwealth’s three arson experts, there was little direct evidence that the fire was the result of arson, rather than some other cause. Indeed, the testimony of the witnesses now at issue was powerful given their positions of esteem and authority. As a result, the absence of their testimony would have seriously weakened the Commonwealth’s case, and we, therefore, cannot say the error was harmless. We reverse the circuit court’s decision to admit the specialized evidence presented by the Commonwealth without either conducting a preliminary hearing or examining the portions of the record which would have enabled the court to determine the reliability and relevance of the evidence."

"Lukjan’s witness, presented as an expert on fire scene investigations, was improperly excluded on the basis of KRS 329A.015. In addition, the circuit court improperly admitted the opinion testimony of three of the Commonwealth’s expert witnesses without conducting a preliminary hearing or reviewing an adequate record. Finally, the financial documents found in the trash can outside Campbell’s Gourmet Cottage were not obtained as the result of an illegal search of the property, and the lightning-strike report was correctly excluded because it is not a business record.

For the foregoing reasons, we reverse Lukjan’s conviction and remand for a new trial."

49.  TRIAL. DIRECTED VERDICT.
NICHOLS (MICHAEL)
VS.
HAZELIP (MICHAEL), ET AL.
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
KELLER (CONCURS) AND STUMBO (CONCURS)
2010-CA-002168-MR
TO BE PUBLISHED
JEFFERSON

"VANMETER, JUDGE: Michael Nichols appeals from a judgment entered by the Jefferson Circuit Court after a jury rendered a verdict in favor of Michael Hazelip and Steven Gregson, regarding a physical altercation that took place between the parties. For the reasons stated hereafter, we affirm."

"Nichols filed a complaint against Gregson and Hazelip for assault and battery, seeking damages related to a shoulder injury he claimed was worsened as a result of the altercation. Gregson filed a counterclaim against Nichols alleging assault. After the presentation of evidence, the parties moved for directed verdicts, which the trial court denied, but ruled that Nichols’ request for damages regarding his shoulder injury was not to be submitted to the jury since he failed to prove any injury was caused by the altercation. The jury found Nichols to be the initial aggressor in the incident, found in favor of Gregson on his counterclaim and awarded $50,000 in compensatory damages for pain and suffering and $200 in punitive damages. This appeal followed.

Nichols’ first argument on appeal is that the trial court erred by denying his motion for a directed verdict in regards to Gregson’s counterclaim. Specifically, Nichols alleges that (1) Gregson could not recover damages for mental suffering absent evidence of a physical injury or contact, and (2) the evidence demonstrated that Gregson was the aggressor in the physical altercation. We disagree."

"Next, Nichols argues he should have been granted a new trial because defense counsel questioned a witness regarding Nichols’ insurance coverage and questioned Nichols regarding his prior psychiatric care. Nichols fails to address how either question resulted in prejudice so as to affect his substantial rights, i.e., affected the outcome of the case. See CR 61.01 (a court “must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties[]”). Thus, we fail to appreciate how this claim of error warrants a new trial.

Nichols’ next argument is that the trial court erred by allowing both Gregson and Hazelip four peremptory strikes since their interests were not antagonistic under CR 47.03. We disagree."

"To determine if coparties have antagonistic interests, courts consider three factors: “1) whether the coparties are charged with separate acts of negligence[]; 2) whether they share a common theory of the case[]; and 3) whether they have filed cross-claims.” Sommerkamp, 114 S.W.3d at 815 (internal citations omitted). The court shall consider other factors, including “whether the defendants are represented by separate counsel; whether the alleged acts of negligence occurred at different times; whether the defendants have individual theories of defense; and whether fault will be subject to apportionment.” Id."

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TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

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30. CIVIL PROCEDURE.  DEFAULT JUDGMENT.
MONTIES RESOURCES, LLC, ET AL.
VS.
EMECO EQUIPMENT (USA), LLC
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING IN NO 2010-CA-001285-MR; AFFIRMING IN 2010-CA-000598-MR; AND AFFIRMING 2010-CA-001286-MR
ACREE (PRESIDING JUDGE)
CLAYTON (CONCURS) AND WINE (CONCURS)
2010-CA-000598-MR
2010-CA-001285-MR
2010-CA-001286-MR
NOT TO BE PUBLISHED
KNOX

51.  TORTS.  IMMUNITY.
HUMPHREY (KRISTIN), ET AL.
VS.
SAPP (KIM)
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
STUMBO (CONCURS) AND VANMETER (CONCURS)
2010-CA-002278-MR
NOT TO BE PUBLISHED
JEFFERSON

"KELLER, JUDGE: Kristin Humphrey (Kristin), individually and as next friend of L.H. and M.H., and Jason Humphrey (Jason), individually and as next friend of L.H. and M.H. (collectively the Humphreys), appeal from the trial court's summary judgment in favor of Kim Sapp (Sapp). On appeal the Humphreys argue that the court incorrectly determined that Sapp has immunity. Having reviewed the record, we affirm."

 

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