For more information on Air Sketch by qrayon, then click here for their web site.
Note that using an iPad (with the Air Sketch App, an Apple TV, a wireless connection, Kanex Adapter, and a tv, projector) at mediation, arbitration, deposition or court not only allows the “marking” of the photo or other image file, but you can display that image over the wireless network to other users laptops or onto a television screen or projector connected using wifi AND an Apple TV connection.
My thanks to my good friend Finis Price who passed away last year for this tech tip.
Click here for April 2013 monthly summaries.
Click here for entire listing of COA Monthly Summaries of Published Decisions.
Kindred Nursing Centers Ltd. Partnership v. Leffew
04/19/2013 2013 Released for Publication
Opinion by Chief Judge Acree; Judges Keller and Moore concurred. The Court of Appeals affirmed the denial of a motion to compel arbitration in a negligence action against appellant, a nursing home, after concluding that the arbitration agreement at issue was invalid. The Court first held that the Cabinet for Health and Family Services, a judicially appointed agent of a nursing home resident with limited authority to act on his behalf, could not ratify an arbitration agreement signed by the resident’s son without authorization on behalf of the resident, who never regained competence prior to his death. The Court noted that only a principal is permitted to retroactively sanction the unauthorized actions of an agent. Because the resident, rather than the Cabinet, was the principal in whose name the agreement was signed, only the resident could subsequently ratify the action of his son. The Court next held that the circuit court properly declined to estop the son from disclaiming the arbitration agreement despite the son’s alleged representations to nursing home administrators that he possessed the authority to execute it on behalf of his father. The “power of attorney” document relied upon by the nursing home was plainly limited in scope and did not confer upon the son the authority to enter into the arbitration agreement. The Court finally held that ordinary state law principles of contract, agency, and estoppel were not preempted by the Federal Arbitration Act (FAA) and could be used by the circuit court to assess the validity of the arbitration agreement.
Carroll v. Wright
04/05/2013 2013 WL 1365941
Opinion by Judge Stumbo; Chief Judge Acree and Judge Combs concurred.
The Court of Appeals reversed a trial verdict and judgment and remanded for retrial on the issue of damages in this negligence action after holding that appellant was entitled to a directed verdict as to liability. Although the Court had held in a previous appeal in this action that appellant was not entitled to a directed verdict as to liability, the Court was not constrained by the “law of the case” doctrine to make the same holding in a subsequent appeal due to new evidence produced at the second trial that was directly relevant to causation and liability. Uncontroverted testimony indicated that appellee lost control of his tractor trailer, that it slid into oncoming traffic causing the accident and appellant’s resulting injuries, and that in so doing appellee had violated statutory and common-law duties to stay in his lane and to safely operate his vehicle. This new evidence required a directed verdict as to liability in favor of appellant.
Smith v. Bear, Inc.
04/05/2013 2013 WL 1352148 DR Pending
Opinion by Judge Nickell; Judges Combs and Taylor concurred.
The Court of Appeals affirmed in part, reversed in part, and remanded as to a summary judgment and award of damages in an action where a fuel provider filed suit against a corporate customer and its sole shareholder seeking payment for unpaid fuel charges and accrued interest. The Court affirmed summary judgment establishing personal liability for unpaid corporate debts against the sole shareholder of the corporation under the doctrine of constructive trust where the shareholder had received substantial corporate assets immediately prior to dissolution and after debts were accrued. However, the Court reversed and remanded the grant of summary judgment against the corporation on the basis that the corporation was purportedly represented below by the shareholder, a non-attorney, in contravention of established law. The Court also held that a jury trial was not required as the only triable issues were grounded in equity and the parties did not agree to a trial by jury. The Court concluded that the amount of damages awarded was appropriate and found no error in the circuit court’s award of attorneys’ fees under the circumstances.
Commonwealth v. Robertson
04/19/2013 2013 WL 1688357 Rehearing Pending
Opinion by Judge Maze; Judge Thompson concurred; Judge Stumbo concurred by separate opinion.
The Court of Appeals affirmed an order overturning appellee’s convictions due to ineffective assistance of counsel under RCr 11.42. The Court first held that comments by the prosecutor during closing argument violated appellee’s right not to testify and that the failure of appellee’s trial counsel to object to those comments constituted ineffective assistance. The Court next held that the presumption of prejudice established in United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L.Ed.2d 657 (1984), applied to counsel’s performance during appellee’s juvenile transfer hearing given counsel’s admission that he had failed to prepare whatsoever for the hearing or to challenge blatantly incorrect testimony given during it. The Court held that because of counsel’s deficient performance, the transfer hearing’s result was “presumptively unreliable” and invalid; moreover, this presumption could not be rebutted by a showing of harmless error. The Court further held that in such instances and where a defendant’s current age prohibited his return to the juvenile system, the proper remedy, as a general rule, is the remand of the matter for a de novo review before the trial court regarding whether transfer was appropriate under Kentucky law and whether the court had jurisdiction over the case. However, the Court ultimately concluded that the “law of the case” doctrine prevented the trial court in this case from considering the appropriateness of the juvenile transfer because the Supreme Court had decided the question in an earlier appeal.
Commonwealth v. Vibbert
397 S.W.3d 910
Opinion by Judge Dixon; Judge Caperton concurred; Judge Combs concurred in result by separate opinion.
The Court of Appeals reversed and remanded an order dismissing an indictment against appellee for first-degree possession of a controlled substance. The Court held that KRS 218A.14151 must be interpreted as limiting deferred prosecution agreements for felonies under KRS 218A.1415 to the discretion of the Commonwealth’s attorney and the circuit court. Thus, neither the county attorney nor the district court had authority to authorize a deferred prosecution agreement, and the Commonwealth was not bound by an agreement negotiated by the county attorney and approved by the district court.
Given v. Commonwealth
04/12/2013 2013 WL 1488996 DR
Opinion by Judge Clayton; Judges Keller and Thompson concurred.
The Court of Appeals affirmed an order granting the Commonwealth’s motion to correct appellant’s sentence. Language in a judgment reflecting the amendment of a fourth-offense DUI to a third-offense DUI was held to be a clerical error under RCr 10.10 where the plea offer explicitly stated that appellant was pleading guilty to fourth-offense DUI; appellant signed the document and acknowledged that he understood its terms; appellant signed a written guilty plea stating his intention to plead to fourth-offense DUI; and appellant stated in open court that he was knowingly and voluntarily pleading guilty to fourth-offense DUI and third-offense driving on a DUI-suspended license as amended by agreement.
Lemaster v. Commonwealth
04/19/2013 2013 WL 1688206
Released for Publication
Opinion by Judge Combs; Judges Moore and Taylor concurred. The Court of Appeals dismissed an appeal in which appellant was challenging the revocation of his probation.
The Court held that because appellant was a fugitive who had never reported to the Department of Probation and Parole for supervision, he was not entitled to call upon the Court’s resources for determination of his claims. Therefore, dismissal was merited.
Lewis v. Commonwealth
04/19/2013 2013 WL 1688329
Released for Publication Opinion by Judge Lambert; Judges Caperton and Maze concurred.
The Court of Appeals affirmed a judgment finding appellant guilty of two counts of second-degree robbery and of being a first-degree persistent felony offender. Citing to KRS 515.030, the Court held that evidence that appellant engaged in conduct implying the threat of physical force was sufficient to support his convictions even in the absence of an express threat. Appellant kept his hand in his pocket during the robbery and even went so far as to prop his concealed hand up on a counter, implying that his hand contained a gun which would be discharged if the victim failed to comply. The victim also testified that appellant’s behavior gave the impression that he had a gun, and that the victim was in fear for his life.
Moran v. Commonwealth
04/26/2013 2013 WL 1776092
Released for Publication Opinion by Judge Combs; Judges Nickell and Taylor concurred.
On remand from the Supreme Court, the Court of Appeals affirmed a judgment convicting appellant of fourth-degree assault. Citing to Graves v. Commonwealth, 384 S.W.3d 144 (Ky. 2012), the Court held that any error in a jury instruction containing mixed states of mind was invited – and thereby waived – by defense counsel’s affirmative agreement to such instruction, his active assistance in the composition of an answer to a jury question which informed the jury it was not required to specify which mens rea it had applied, and his statement that he would not argue a claim of non-unanimous verdict on appeal if the jury failed to specify the mens rea it had applied.
Reilly v. Commonwealth
04/19/2013 2013 WL 1688381
Rehearing Pending Opinion by Judge Thompson; Judges Dixon and Moore concurred.
The Court of Appeals affirmed the circuit court’s denial of appellant’s motion to enter the deferred prosecution program provided for in KRS 218A.14151. The Court held that trial courts lack authority under the statute to place a defendant in the deferred prosecution program without the prosecutor’s consent. KRS 218A. 14151(1)(a) expressly states that the prosecutor must agree to deferred prosecution and, therefore, entry into the program is solely within the prosecutor’s discretion. However, when deferred prosecution is denied, KRS 218A.14151(2) requires the prosecutor to take a position on probation and, if opposed, state substantial or compelling reasons on the record “why the defendant cannot be safely and effectively supervised in the community, is not amenable to community-based treatment, or poses a significant risk to public safety.” The Court further held that trial courts are without authority to question the prosecutor’s motives when it rejects a request to defer prosecution or to order probation without the prosecutor’s agreement.
Ensor v. Ensor
04/12/2013 2013 WL 1488999
Rehearing Pending Opinion by Judge Nickell; Judges Moore and Thompson concurred.
The Court of Appeals affirmed in part, reversed in part, and remanded a judgment concerning valuation and division of property, maintenance and the assessment of post-judgment interest in a dissolution action. The Court held that the circuit court erred in including a Grantor Retained Annuity Trust in the marital estate. Where there was no showing of a fraudulent or dissipative transfer, the creation and funding of an irrevocable estate planning trust removed the transferred assets from the marital estate and, therefore, wife did not retain an equitable interest in the trust assets.
J.K. v. N.J.A.
04/12/2013 397 S.W.3d 916
Opinion by Judge Nickell; Judges Moore and Taylor concurred. The Court of Appeals affirmed an order of contempt entered in a paternity action based upon mother’s refusal to submit to genetic testing ordered on four separate occasions for both mother and child. The Court first held that the presumption of paternity set forth in KRS 406.011 did not deny the purported biological father the right to a finding of whether he was, or was not, child’s biological father. The Court then noted that the circuit court heard sufficient testimony concerning the putative father’s claim upon which to make a determination as to standing and a request for genetic testing pursuant to KRS 406.081 and KRS 406.091(2). The Court further held that the evidence supported the circuit court’s order of contempt since mother refused to submit to genetic testing.
Cole v. Fagin
04/19/2013 2013 WL 1694758
Opinion by Judge Moore; Judges Nickell and Taylor concurred. The Court of Appeals reversed the circuit court’s entry of summary judgment on statute of limitations grounds in an automobile negligence action. The Court held that an automobile insurer was required under the Motor Vehicle Reparations Act (MVRA) to utilize the insured’s basic reparations benefits (BRB) coverage prior to medical payments (MedPay) coverage to pay the insured’s accrued medical expenses. Because of this, the MVRA’s two-year limitations period started to run only when the last BRB disbursement was made to the insured, even though the insurer had characterized its reimbursements to the insured as MedPay and the insured did not object to its characterization. Thus, how the reimbursements were “labeled” by the parties was ultimately irrelevant. In reaching its decision, the Court noted that there was no dispute that all accrued medical expenses could have been paid via BRB coverage. The Court further noted that allowing an insurer to apply medical expenses toward MedPay coverage, when those expenses could also have been applied toward BRB coverage, would be fundamentally at odds with the concept of “no-fault” in Kentucky.
Medlin v. Progressive Direct Ins. Co.
2011CA002258 04/05/2013 2013 WL 1365912
Opinion by Judge Stumbo; Judges Keller and Thompson concurred.
The Court of Appeals affirmed an order denying appellant’s motion for declaratory relief. The Court held that the circuit court correctly concluded that the Motor Vehicle Reparations Act (MVRA) only requires insurance obligors to either pay medical expenses directly to medical providers or to reimburse the insured for actual accrued economic losses. Because appellant had not personally paid any medical bills, he had not incurred any economic losses and was not entitled to be directly reimbursed. The Court further noted that appellant had been offered three options for collecting his PIP benefits: payment to appellant’s chiropractor directly; reimbursement for out-of-pocket expenses; and payment by check in an amount equal to his medical bills and with the check including his name and the name of his medical provider. The first two options are included in the Motor Vehicle Reparations Act, and the third option was pursuant to an agreement between the parties. Having declined all three options, appellant was not entitled to the declaratory relief he sought in circuit court.
M.A.M. v. Commonwealth
04/12/2013 2013 WL 1488509
Opinion by Judge Moore; Judge Nickell and Judge Taylor concurred.
The Court of Appeals reversed and remanded family court orders finding that appellant violated a Juvenile Status Offender Order (JSOO), that he was in contempt for doing so, that the least restrictive means was not a necessary requirement for disposition of contempt findings, and that the proper disposition for appellant’s contempt was his commitment to the Cabinet for Health and Family Services. The Court held that the juvenile’s guilty plea was invalid because the family court failed to conduct a proper colloquy under Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), to determine whether the juvenile’s stipulation to the charges in the JSOO was voluntarily, intelligently, and knowingly entered. Moreover, the JSOO was not a valid court order because it was based solely upon allegations and not upon any actual findings made by the family court. The Court further held that the juvenile should not have been placed in the Cabinet’s custody for his contempt of court because the contempt finding was based upon the juvenile’s violation of the JSOO, an invalid court order.
S.B. v. Commonwealth
04/05/2013 396 S.W.3d 928
Opinion by Judge Stumbo; Judges Keller and Thompson concurred. The Court of Appeals vacated a judgment finding appellant to be a habitual truant. The Court held that the circuit court lacked subject matter jurisdiction to make the truancy determination where there was no evidence of compliance with the statutory assessment requirements of KRS 159.140 and where there was no evidence of the child’s failure to participate that would excuse the lack of proof.
Doyle v. Kentucky Bd. of Medical Licensure
04/05/2013 2013 WL 1352046
DR Pending Opinion by Judge Keller; Judges Stumbo and Thompson concurred.
The Court of Appeals affirmed the denial of appellant’s CR 60.02 motion. Appellant sought relief from the voluntary dismissal of his petition for judicial review of a Board order suspending and indefinitely restricting his license. The Court upheld the circuit court’s determination that appellant voluntarily chose to enter into an agreement with the Board in which he “surrendered the opportunity to argue” underlying issues about the validity of the Board’s previous suspension and revocation orders, thereby rendering moot any issues regarding the sufficiency of the evidence supporting those orders. The Court also noted that no sufficient evidence of fraud or coercion was offered which would have required the granting of CR 60.02 relief.
Estate of Moloney v. Becker
04/19/2013 2013 WL 1688378
Released for Publication
Opinion by Judge VanMeter; Judges Nickell and Taylor concurred.
The Court of Appeals affirmed a judgment that resulted in the dismissal of an estate’s negligence action against a financial planner for damages that resulted from an allegedly defective qualified personal residence trust (QPRT) set up by the planner. The Court first held that whether the financial planner violated his common-law standard of care or the statutorily-imposed standard of care found in the unauthorized practice of law statute (KRS 524.130) when he set up the QPRT was immaterial to the issue of whether substantial evidence supported the jury’s finding that the planner’s negligence was not a substantial factor in causing an injury to the estate. The Court also concluded that the question of whether the planner’s negligence in setting up the QPRT was a substantial factor in causing the estate’s injuries was ultimately a matter for the jury. The Court finally held that the circuit court did not abuse its discretion by allowing the planner to testify regarding his previous work for the decedent.
Mays v. Porter
04/19/2013 2013 WL 1688480
Released for Publication
Opinion by Judge Moore. Chief Judge Acree and Judge Thompson concurred.
The Court of Appeals affirmed a judgment finding that a transfer of real property to appellants was the result of undue influence. Substantial evidence demonstrated that appellee did not wish to execute the deed of conveyance and would not have done so absent her husband’s insistence. The attorney that prepared the deed indicated that appellee attempted to ask questions regarding the deed, but that her husband did not permit her to do so prior to executing the deed. Additionally, there was evidence to show that husband had previously exerted physical force over appellee and that she refrained from going against his wishes because she feared for her safety. The Court also held that the circuit court did not err by allowing appellee to amend her counterclaim post-trial.