COA: February 16, 2018 Court of Appeals Decisions (Minutes)

Nos. 111-134: 24 Decisions Posted with 8 decisions designated for publication

PUBLISHED DECISIONS:

111.  Arbitration.  Injunction.
Hardy v. Beach
Affirming.  Patrick Hardy appeals the dismissal by the Jefferson Circuit Court of his breach of contract claim against David Beach. Hardy asks this Court to determine whether an arbitration clause deprives the trial court of subject- matter jurisdiction beyond a ruling as to the binding nature of the arbitration clause itself. We hold that it does not, and that the trial court also has jurisdiction to issue injunctive relief if a party is so entitled. However, after reviewing the record, and finding no error in the trial court’s determination that Hardy has not shown entitlement to injunctive relief, we affirm.

113.  Workers Compensation.
Gregory v. A & G Tree Service
Affirming the Board which vacated the ALJ’s finding that Gregory had a 45% permanent partial disability (“PPD”) because the ALJ insufficiently set forth the facts relied upon. In so doing, the Board also vacated Dr. Warren Bilkey’s assessment of a 4% right shoulder impairment and Dr. Richard Eiferman’s 6% right eye impairment. Finally, the Board affirmed the ALJ’s conclusion Gregory was not entitled to a “safety violation” benefit enhancement.

116.  Wrongful termination.
Fields v. Benningfield

120.  Medical Malpractice. Failure to diagnose cancer in mammograms. New trial motion. Defendant testifying as expert.  Apportionment.
Fraley v. Zambos M.D.

125.  Lottery Ticket. Time for turning in for winnings.
Bailey v. Kentucky Lottery Commission

128.  Probate.  Wills and Estates.  Undue Influence.
Sluss v. Estate of Gloria B. Sluss
Affirmed summary judgement holding no undue influence exercised on decedent.

130.  Child support. Voluntary unemployed/underemployed in confinement.
Jarboe v. Reynolds
Vacate and remand court’s order concerning father’s child support obligation.

131.  Criminal Law.  Ineffective assistance of counsel.
Cherry v. Commonwealth of Kentucky 
Affirmed denial of motion for Kentucky Rule of Criminal Procedure (RCr) 11.42 relief

Selected cases that were not designated for publication in tort, insurance and civil law.

121.  Qualified official immunity allowed.  Injuries occurred in confinement while cutting trees for DOT.
Stewart v. Litteral

******************

You will find the complete list of this week’s decisions below with number, names of parties, case number, lower court (eg., county), etc. with a hot link to the full text of the decision.  Please note that you will have to check Case Information for each decision for finality (if not already marked on first page of decision after publication), amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.   Click Court of Appeals Minutes for entire listing of weekly minutes.

All decisions regardless of publication are posted and can be read, but those decisions designated not for publication cannot be cited as legal authority.  See, KRCP 76.28(4)(c)(“Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.”)

 

Attorney Sidebar: On Specialization

~Ben L Kessinger, Jr.

Specialization leaves some people high and dry. If their specialty dries up, then what are they going to do? Tax laws change; litigation changes. They’ve gone now to a lot of mediation and arbitration, and there are not nearly as many trials in the courtroom as there were. Now, if a lawyer has one trial a year, he’s lucky.

~Ben L Kessinger, Jr.
Kentucky Lawyers Speak, page 224.

This warning is often taken for granted and ignored by attorneys at their own risk. In the business world, this is called creative destruction. Many of the companies in the Dow Jones industrials many years ago are not there anymore. One day Eastman Kodak owns a photography business, then along came Digital photography. One day railroads rule transportation, and Pullman sleeper cars were the only way to go for long distances.

In our own field, who remembers the king of typewriters, the IBM   Selectric  typewriter with a magical ball in the middle that you could change fonts and easily make carbon copies. Later replaced by the magic of a Wang computer typewriter. The net was gone. Typewriters gave way to television typewriters. Faxes are giving way to email. In court filings are done electronically from a distance. Right now, I am dictating this paragraph using Dragon 6  for my Mac. Not as good as the Dragon program for Windows, but it’s gotten pretty darn good.

Anyone remember when the best continuing legal education was to go to the courthouse and watch the Titans of trial lawyers battle it out?  Or going to Frankfurt to watch Supreme Court arguments to learn the ropes for appellate practice? Well now, there are videos available online or on YouTube to serve as examples for various aspects of litigation. If you want to catch a Supreme Court argument, he can catch it live in the quiet of your own office.

How about when workers compensation laws changed in Kentucky which made it harder and harder to make money as a plaintiff lawyer, and nearly closed down that portion of the defense bar. Specialties came and specialties went. Subrogation has evolved into an entirely different, complicated, and critical element in injury law. IPads have become trial tools working together with projectors, televisions, audio, and more. The video deposition was once VHS,  then a compact disc, then a DVD, and now thumb drive. Contrary to the popular saying that the more things change the more they stay the same. Not hardly the more things change, the more they change and change some more.

 

Attorney Sidebar: Ten Essentials Important in Your Practice of Law

~ Ben L. Kessinger, Jr.

There are ten essentials that I think are very important in your practice of law.  First, keep current with your expertise. If you’re an expert tax lawyer, be sure that you understand the most recent tax law. Second, watch out for malpractice. If you procrastinate is you let the statute of limitations run on you or you don’t document your activities, you are vulnerable to a malpractice lawsuit keep track of your appointments and the date your pleadings are due. Third, find someone to be your mentor in the first years of practice. After that, you should be a mentor to some younger lawyer. Fourth, have fun in the practice of law. If you let the practice of law interfere with your personal happiness, find another job. Get involved in Bar Association activities where you enjoy the association with other lawyers.

Fifth, be a likable lawyer. A lot of clients want you to be a mean lawyer and you can’t be a mean lawyer. Civility in the practice of law is very important. And when you get decisions that are against you, then don’t blame the judge. You can tell your client, “Maybe we can appeal the case and get a different decision.” Sixth, ethical conduct is a high priority.

Seventh, I would say is priority of communications. With your clients, return phone or other messages. You’ve got to be responsive to other people. Eighth, the economics of your practice cannot be ignored. You must have able secretaries, staff members, and partners who are well-compensated. . . .

Ninth, brevity is a must. Lawyers need to train themselves to be brief and concise in their writings. Judges don’t have time to read long briefs. Last, in trial practice, start out trying to find out what the law is when you first get the case. Find out what the jury instructions would be when they get the case. Prepare yourself day-to-day to get that case ready for trial and have confidence in what you’re doing.

~Ben L Kessinger, Jr.

Kentucky Lawyers Speak, page 224-25.

COA: February 9, 2018 Court of Appeals Decisions (Minutes)

Nos. 97-110: 14 Decisions Posted with 3 decisions designated for publication

PUBLISHED DECISIONS:

98.  Administrative Due Process.  KSP.
Wasson v. Kentucky State Police
Affirmed circuit court order that state police commissioner’s decision to transfer trooper from injured status to limited duty pursuant to KRS1 16.165(2) rejecting trooper’s assertion the decision was arbitrary, unsupported by substantial evidence,

 99.  Marital separation agreement and wills to transfer property.
Lewis v. Estate of Richard D. Lewis
Marital separation agreement provision on transfer of marital home and as part of divorce not enforced when husband failed to comply with provision to be included in his will.

106.  Commonwealth of Kentucky.  Expungements and multiple convictions.

Commonwealth of Kentucky v. Ford
Reversed order granting defendant’s motion to expunge his felony convictions. The Commonwealth argues that the expungement was erroneously granted because Ford’s convictions arose from multiple incidents, whereas the expungement statute, Kentucky Revised Statutes (KRS) 431.073, only permits expungements of convictions arising from a single incident.

******************

You will find the complete list of this week’s decisions below with number, names of parties, case number, lower court (eg., county), etc. with a hot link to the full text of the decision.  Please note that you will have to check Case Information for each decision for finality (if not already marked on first page of decision after publication), amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.   Click Court of Appeals Minutes for entire listing of weekly minutes.

All decisions regardless of publication are posted and can be read, but those decisions designated not for publication cannot be cited as legal authority.  See, KRCP 76.28(4)(c)(“Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.”)

MNT02092018

 

 

Attorney Sidebar: Using on-line medical videos to learn about injuries. Here are some tips and uses.

Surgery videos. A new on-line teaching tool to understand what your client went through, whether the result of trauma or degenerative disease or congenital


Here is a sample illustration of a lumbar (L5-S1) video that shows the steps. Might be for learning purposes for patient and lawyer, but there may be sources out there that can prepare specific videos for demonstrative evidence.  Click here for the video.

I believe we are well past the point in time for a need to convince jurors, insurance adjusters and insurance counsel of the seriousness of the medical procedures. Medical terms have a tendency to enter a world of objectivity and sterility and downplay the consequences.

Case on point with “bilateral humeral fractures” or “bilateral ulna or tibia fractures” may be how the doctors describe it, but “Joe” on the street knows broken arms and the resultant loss of taking baths, combing hair, getting dressed, sleeping comfortably, washing their face, eating, scratching, going to the bathroom. Now that’s gotta be pain and suffering. And add to the pain and suffering and emotional trauma of dependency (and health and disability insurance limitations paying for needed accommodations) on others to meet your basic needs during the recovery and maybe even beyond.

A loss of dignity and a change in your quality of live in many of these functions can last a week, months or even a life time.

And to set the stage for seriousness of the rehabilitation and altered lifestyle may be best laid with not only the foundatins of the trauma from the collision (vehicular damage, injury photos, xrays of broken bones, etc.) but also the surgical process and family and friends and therapists describing the hell you are going through, either for a while or the rest of your life.

I digress a little but not that much. Here is the illustrative video for back surgery.

I am going to put in a teaching video from from one of the surgical instrumentation companies for a touch of realism to allow injury lawyers and insurance adjusters and lawyers to understand what has happened and may be to “know know”.

Be sure to find the video that most closely matches up to the procedure you wish to learn about. For example, here is a link to Johnson & Johnson’s DePuy Sythes Institute.  Goto:  https://www.depuysynthesinstitute.com

And for a little realism then click here:

 

OP-ED: Call Your State Senator and Leave Message to “VOTE NO ON SENATE BILL 2”

Protect Your Rights to Full Compensation for Injuries and C

 “Vote No on Senate Bill 2”

Your right to a trial by jury of your peers is under siege.

I encourage every citizen to contact their Kentucky State Senator and ask them to “Vote No on Senate Bill 2”.

Please do so quickly since there may be a vote this Monday, Feb. 12, 2018.

How:

Call toll free 1-800-372-7181; say you wish to leave a message for your Senator. To make sure the message gets to the right person, you will be asked your name, your address, and then your message.

The Message: “Vote No on Senate Bill 2”

When: Now.

What: Senate Bill 2 is an attempt to change the Constitution to our the state legislature to limit your right to full compensation for harms and losses you, a loved one, or a neighbor would be asking of a jury when injured by the carelessness of another. This includes wrongful death, car collisions, medical negligence, and legal negligence among other things.

The proposal would change our Kentucky Constitution to give the Legislature the right to set a cap for the maximum amount you could receive from a jury in your county. For example, if a parent is killed in a terrible collision, then the amounts that would go to the children could be limited by the state and not the jury regardless of the amount your children would otherwise be entitled to under the law as determined by a jury.

For example, if you were crippled and confined to your home and never work again, then the legislature could set a limit on your lost income in the future, your pain and suffering you have endured and will endure for the rest of your life, your future requirements for medical attention and rehabilitation. All of which you will need to get your life somewhat closer to what it was before you were harmed.

The real question is who do you trust better to do the right thing for you, your family and friends? People who live in the community or a group of representatives who have little accountability to you and who are subjected to enormous pressure and lobbying from those interested in capping the amount they would otherwise be obligated to pay. These would be the same people who caused and still cannot fix our pension crisis.

Why:

Your right to a jury trial is very, very important. It’s in our federal and state constitutions. Your local jury is the conscience or YOUR community. They are the ones who will hear the case, understand the injuries, and see costs you will require to compensate you. It is that simple.

More importantly, the jury system is not broken and is working fine and the change will not benefit you at all but rather will benefit those who have injured someone carelessly by allowing them to escape their responsibility and their financial obligation by paying less than you might otherwise be entitled.

Remember the law now is that you have a right to be made whole and be put as close to where you were before you were hurt. You may have pain, medical expenses, rehabilitation therapy, vocational training and more.

It is very important to know that these potential caps will hurt those who will need it more and is exorbitantly unfair.

The caps should not affect minor cases or injury recoveries. But, they would hurt those who have lost a family member or have received devastating and crippling injuries since the wrongdoer and their insurance would get a free pass and put the money in their own pockets.

I am not saying the legislature would intentionally hurt you by placing caps, but the potential for harm by those in Frankfort is too great for me to want them having any more control over my life at a time when I needed help the most.

Remember if you do not get the full amount you are entitled to, then you will need to look somewhere for help. Family and friends; government aid; or charity. This is demeaning and not fair to you or your family. And requiring other taxpayers and charities to pick up a tab for the negligent harm caused by another is also terribly wrong.

Trust me, there are already plenty enough cases and injuries out there where the wrongdoer has no money or insurance to make it right. We really should not be adding the problem to allow folks a free ride on their wrongdoing.

Here is a link to the law:

“Are you in favor of permitting the General Assembly to: (1) Place limits on the amount to be recovered for injuries resulting in death; (2) Place limits on the amount to be recovered for injuries to person or property; and (3) Create statutes of limitations or statutes of repose as to how long after the incident a law suit may be commenced?”

If the state can make such a mess of government pensions and other matters then who would want them deciding what you will need as determined by a jury who will have heard the evidence, heard from you and heard from the doctors

Trust a jury to do the right thing is what I want. The jury is in the absolute best position to know.

This is not the wild wild west. In a jury trial, there is much investigation. At trial there will be a judge making everyone follow the law with the wrongdoer represented by a lawyer who will fight tooth and nail to see that his client pays as little as possible. And the jurors will take an oath to follow the law.

VOTE NO ON SENATE BILL 2.

Attorney Sidebar: Churchill with a kiss…. a kiss that Keeps It Super Simple

~ Sir Winston Churchill

All the great things are simple, and many can be expressed in a single word: freedom, justice, honor, duty, mercy, hope.

and

Broadly speaking, the short words are the best, and the old words best of all.

~ Sir Winston Churchill


When speaking to a jury, you must not talk down, nor up to them.  You should avoid jargon and trite phrases, and if you choose not to, then have a desired effect in mind.  If a defendant truck driver uses “hammer lane” instead of the “fast lane”, then by all means hammer him/her with it.

These simple words can be compared to a nation, a people, a person, a case.  Just use your imagination to employ it in your theme of your framing of the case.  They are more easily adapted for lawyers representing those wronged, injured or harmed by another.  Could be a car accident, it could be business transaction, etc.

Freedom.  Those injured severely are less than they were before the auto collision, for exampled.  Their lives are less, they are limited physically and their hopes and dreams.  Both the body and spirit can be limited.  They have lost their freedom to control their life as was their right.  They have lost the ability to do some things that they took for granted.  Basic bath and hygiene has been adjusted.  Their freedom has been diminished.  Within a business transaction, there could a loss of a business advantage, opportunity, or profit because the contractual breach limits their freedom to go on.

Justice.  Your case should not be at trial unless their was an injustice.  Justice should be on your side.

Honor.  The honorable thing is for those causing harm to take responsibility for the negligence, their wrongdoing, their failure to keep their word on an obligation.

Duty.  Easy to find in vehicular collisions, professional malpractice.  The jury instructions, standing procedures for the practice of medicine or law, the terms of a contract, the driver’s manual, state and federal safety codes, the instruction manual, and more provide the duties that must be met else someone is harmed.

Mercy. It is probably best not to use this one as a sword since it would counter many jury instructions.  It could be paraphrased as “charity” as a straw man argumentative point that your client is not seeking charity in this case, in this courtroom.  This would not be the place or the forum.  What he is seeking compensation for the breach of duty, the loss of his freedom, justice for the harms and losses sustained, and to live his life with the honor he had before so much was taken from him.

Hope.  All cases are based on hope.  Hope the jury meets their responsibility according to the law,  Their hope to live a life with their family and loved ones as close to what it was before the harms and losses.

Keeping it super simple is not limited to words, need not be spelled out, and can be best be told through the words and deeds of others.

For more on how Churchill prepared and gave his speeches that moved a nation and which might help you move a jury, click here.

 

Attorney Sidebar: On the Value of Primacy in Your Opening Statement

~ Peter Perlman

The psychological principle of primacy teaches us that people tend to believe the first explanation or impression they get on a topic. Accordingly, in a trial, jurors are most likely to believe the story they hear first (if they have a good impression of the storyteller). Once a first impression – whether good or bad – has been made, that impression will be readily retained and difficult to alter. Therefore, if you impress the jurors favorably with your version of the facts, your opponent will be hard-pressed to change the jurors’ minds.

~ Peter Perlman, “Opening Statements”, ATLA Press, 2007, page 1.

We have heard the principles of “recency and primacy” so often that I believe they are discounted, if not ignored.  But you would be ignoring these persuasion rules at your own risk.  A trial lawyer must make a favorable impression.

First minimize the negatives in the way you appear and talk to the jury.  This begins during jury selection, but hopefully builds in your favor as the trial progresses.  In voir dire, the jury gets the flavor of the case and whether you area the “go to” person for guiding them through this trial maze.  You cannot/should not jump into anything even resembling an argument during void dire, but you can set the stage and pique their interest when you make the opening statement.

Second, expand on the positives which usually begins in earnest in opening statement. There are many suggestions on how to do an opening, and I won’t digress here.  But, the rule of primacy should tell you to chose your method carefully and select your words wisely.

In it’s basic form, recency and primacy and its effect on learning is expressed as —

The Primacy/Recency Effect is the observation that information presented at the beginning (Primacy) and end (Recency) of a learning episode tends to be retained better than information presented in the middle.

Click here for source of this quote.

I include an article from Courtroom Sciences, Inc by Bill Kanasky, Jr. Ph.D. will digs deeper on this topic, entitled The Primacy and Recency Effects: Secret Weapons of Opening Statements

Attorney Sidebar: The Dangers of Making Rulings Based on Political Means and not Constitutional Rule of Law

~ Justice Benjamin Curtis, Dissent in Dred Scott v. Sanford

Political reasons have not the requisite certainty to afford rules of juridical [60 U.S. 393, 621] interpretation. They are different in different men. They are different in the same men at different times. And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.

~ Justice Benjamin Curtis, Dissent in Dred Scott v. Sanford, 60 US 393, 620-21 (1857).  See,

If anyone needs a reminder the dangers that can happen when our Constitution and laws are bent to the whims of partisan expedience, or the ends justify the means, or when morality and common sense take a back seat to sophistry, then the Dred Scott decision making slavery an near Constitutional right and human beings less than property.  A civil war with the distrust persisting today.

This should be a reminder that the rule of law and equal justice for all should be applied.  In days of political turbulence such as these, I would submit they provide a clearer path to what must be done rather than blind passions and wants.  Justice Curtis’s rule of interpreting the Constitutions is that we are nation of laws, and that our guiding principle in applying that law is that we follow the rule of law and not the rule of men.

Yes, Justice Harlan’s dissent is more to the point and more biting, but Justice Curtis shows us that the path reached by the majority was a bad path with Justice Marshall point to the better end.  Gut feelings and feel good rulings are not a path to justice but a shortcut to chaos and loss of respect for our systems.

 

COA: February 2018 Oral Argument Calendar for Court of Appeals

Dates: Feb. 13, 15 and 21

Click here for a complete list of our posts for COA Arguments and here for those for SCOKY. And here is a link to the AOC page containing their index to all Court to Appeal oral argument calendars. with names, litigants, issues, and the dates/times/locations for each argument – Oral Arguments Calendar.

Issues:

*  Interlocutory appeal of the trial court ruling which suppresses two blood tests which measured the blood alcohol level of the Appellee’s blood, post motor vehicle accident.

*  Consolidated appeals arising from collection action by Appellant seeking to establish priority pursuant to KRS 376.135 over competing creditors.

*  Appeal from property issues in dissolution action. Classification of income from loans forgiven partially during the marriage and partially after; tracing and calculation of value of non-marital interest in property owned by LLC; calculation of value and non-marital interests in retirement accounts; calculation of equalization of payment for division of marital property.

*  Whether the trial court properly denied the Appellant’s motion to have visitation with Appellee’s sons, his former step-sons.

*  Appeal of certification of a class pursuant to a statute allegedly precluding certification and arguably failing to satisfy the prerequisites of CR 23.02(c).

*  Summary judgment and wrongful death action when a suspect fleeing from active pursuit of a deputy sheriff crashed head on into decedent’s car.

*  Residential foreclosure action.

*  Whether circuit court erred by upholding the Kentucky Unemployment Insurance Commission’s decision that appellant voluntarily refused suitable work without good cause.

*  Whether circuit court erred by granting summary judgment in favor of appellee on the basis that the policy of insurance did not provide coverage for decedent.

*  Appeal from judgment denying complaint to enforce judgment lien against property owned by LLC.

*  Whether Kentucky recognizes a claim for “reverse piercing;” Sufficiency of evidence and equites supporting piercing of LLC’s veil.

February2018