COA 2009 Minutes: October 16, 2009 (Nos. 1038-1073)

COA 2009 Minutes: October 16, 2009 (Nos. 1038-1073)

  • 36 decisions
  • 8 published

PUBLISHED DECISIONS WITH LINKS TO FULL TEXT

1038 – ATTORNEYS, FEES, TRIALS
BONAR V. WAITE, SCHNEIDER, BAYLESS & CHESLEY CO., LPA
OPINION AFFIRMING
** ** ** ** ** BEFORE: DIXON AND NICKELL, JUDGES; KNOPF,1 SENIOR JUDGE.
DIXON, JUDGE: This action involves an attorney fee dispute between
Appellants, Barbara D. Bonar and her law firm, B. Dahlenburg Bonar, P.S.C. (“Bonar”), and Appellees, Stanley M. Chesley, his law firm, Waite, Schneider, Bayless & Chesley Co., L.P.A., and associate, Robert A. Steinberg (collectively (“WSBC”), arising out of a settlement of an underlying class action lawsuit filed in the Boone Circuit Court against the Roman Catholic Diocese of Covington, Doe v. Roman Catholic Diocese of Covington, Civil Action No. 03-CI-00181. Following a three-day bench trial, the trial court ruled that Bonar was not entitled to any attorney’s fees from the class action.

At the outset, we note that the litigation herein has been contentious at best, and the parties vehemently disagree as to virtually every aspect of this matter, from the facts to the applicable law. However, it appears clear that in August 2002, Steinberg and attorney Michael O’Hara began investigating a class action child sexual abuse case against the Diocese. Sometime in December 2002 or January 2003, Bonar and Steinberg discussed the fact that she had two clients who had also been abused by the same priest. As a result, Bonar was invited to join as a class co-counsel. The record contains several letters between Bonar and Steinberg in early 2003 discussing a potential fee arrangement. However, the parties never entered into a formal written fee contract. * * *

On appeal, Bonar challenges not only the trial court’s final order and judgment, but also numerous pretrial rulings. Specifically, Bonar argues that the trial court erred by: (1) denying her motion for partial summary judgment; (2) dismissing her claims against Chesley and Steinberg in their individual capacities; (3) improperly limiting discovery; (4) prohibiting impeachment testimony; (5) excluding expert testimony; (6) failing to afford her a fair and impartial trial; (7) making inconsistent rulings; (8) determining that Baker v. Shapero was dispositive; and (9) finding that she committed numerous ethical violations. We shall address each argument in turn, providing additional facts as necessary.

1042 – FAMILY LAW, SEPARATION AGREEMENT
MONEY V. MONEY
OPINION AFFIRMING
** ** ** ** ** BEFORE: ACREE AND CLAYTON, JUDGES; HARRIS,1 SENIOR JUDGE.
HARRIS, SENIOR JUDGE: Gary Eugene Money appeals from an order assigning him additional marital debt subsequent to a settlement agreement. Gary argues that the settlement agreement is ambiguous and that the trial court erred by assigning him additional debt, which he alleges was unknown at the time of the settlement agreement. On cross-appeal, Renee Money argues that the settlement agreement was unconscionable. * * *

The trial court approved the agreement and incorporated it by reference into the decree of dissolution. Both parties were represented by counsel throughout all stages of negotiation. In fact, Renee’s own counsel drafted the settlement agreement. Renee’s motions were filed by successor counsel after her original counsel was allowed to withdraw. In Renee’s brief, she complains that the settlement agreement is lopsided. However, she fails to note her entitlement to the household furnishings, appliances, and antiques and her share of the 2005 income tax refunds. More importantly, Renee has not alleged a change of circumstances that has rendered the agreement unconscionable. The record reflects that she willingly entered into the agreement and was represented by competent counsel throughout the proceedings. A mere discrepancy in the amounts received by each party under a settlement agreement is not enough to render the agreement unconscionable. Peterson v. Peterson, 583 S.W.2d 707, 712 (Ky. App. 1979). Based upon our review of the record, we cannot conclude that the trial court abused its discretion by finding the settlement agreement conscionable.
Accordingly, we affirm the order of the trial court in its entirety.

1042 FAMILY LAW, DIVISION OF MILITARY RETIREMENT BENEFITS
SNODGRASS V. SNODGRASS
OPINION VACATING AND REMANDING
APPELLEE
** ** ** ** ** BEFORE: ACREE, CLAYTON AND KELLER, JUDGES.
ACREE, JUDGE: Guy Snodgrass appeals from an order of the Madison Circuit Court denying relief pursuant to Kentucky Rules of Civil Procedure (CR) 60.02(f) by which he sought to amend language in his divorce decree relating to the division of his military retirement benefits. Because the denial of his motion was error, we vacate the order and remand the case for further proceedings.

1043 – CRIMINAL PROCEDURE – SEARCH AND SEIZURE, AUTOMOBILES
LINDSEY V. COMMONWEALTH
OPINION AFFIRMING
** ** ** ** ** BEFORE: NICKELL, STUMBO, AND WINE, JUDGES.
NICKELL, JUDGE: John David Lindsey (Lindsey) appeals from a September 17, 2007, Hardin Circuit Court judgment based upon his conditional guilty plea1 to charges of complicity to manufacture methamphetamine,2 complicity to possess a controlled substance in the first-degree,3 possession of a controlled substance in the second-degree,4 and complicity to possess drug paraphernalia.5    Lindsey was sentenced to ten years’ confinement.6    On appeal, he argues the trial court erred by denying his motion to suppress evidence obtained from an illegal search of the automobile in which he was a passenger in violation of his rights under the Fourth and Fourteenth Amendments to the United States Constitution. Finding that the officers had reasonable suspicion to stop the driver of the vehicle and probable cause to search the car, we affirm.

1047 – CRIMINAL LAW, PFO
AKINS V. COMMONWEALTH
OPINION AFFIRMING AS TO THE FIRST APPEAL AND VACATING AND REMANDING AS TO THE SECOND APPEAL
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; THOMPSON, JUDGE; HARRIS,1 SENIOR JUDGE. COMBS, CHIEF JUDGE: This case involves two appeals that are being heard together by motion of the Commonwealth. The outcome of the first dictates the fate of the second. Derrick D’Keith Akins appeals from the final judgment of the Hardin Circuit Court convicting him of carrying a concealed deadly weapon, possession of marijuana, and possession of a handgun by a convicted felon (Akins I). He was sentenced as a persistent felony offender (PFO). In a second appeal (Akins II), Akins challenges another conviction for possession of a handgun by a convicted felon and a separate PFO conviction. Although the Commonwealth has vigorously defended both appeals, it concedes that an affirmance of the first conviction would preclude Akins’s subsequent conviction for possession of a handgun by a felon as a violation of the constitutional guarantee against double jeopardy. After carefully studying the arguments of counsel, we affirm the initial appeal (Akins I); because of the double jeopardy issue, we vacate and remand the conviction in Akins II.

1050 – WILLS & ESTATES, DISTRIBUTION, SUMMARY JUDGMENT
GOODMAN V. GOLDBERG & SIMPSON, PSC
OPINION AFFIRMING
** ** ** ** ** BEFORE: ACREE AND LAMBERT, JUDGES; HARRIS,1 SENIOR JUDGE.
HARRIS, SENIOR JUDGE: Philip Goodman appeals from a summary judgment granted in favor of Goldberg & Simpson, P.S.C., Steven A. Goodman, and Wayne F. Wilson dismissing his tort claims relating to the distribution of assets from the estates of Leah and Lawrence Goodman. After a careful review of the record,
briefs, and oral arguments, we are persuaded that there are no genuine issues of material fact. Accordingly, we affirm.

1055 – TORTS (ASSAULT, BATTER, EMOTIONAL DISTRESS), ATTORNEY FEES
HAWES V. LAPOINTE
OPINION VACATING AND REMANDING
** ** ** ** ** BEFORE: CAPERTON AND DIXON, JUDGES; HENRY,1 SENIOR JUDGE.
DIXON, JUDGE: Appellant/Cross-Appellee, Todd Hawes, appeals from an order of the Spencer Circuit Court dismissing his civil action against Appellee/Cross-Appellant, Glenn LaPointe, seeking damages for assault, battery, and emotional distress. LaPointe has cross-appealed from the trial court’s denial of attorney fees. For the reasons set forth herein, we vacate the order of dismissal and remand the matter to the trial court for further proceedings.

1061 – REAL PROPERTY, EASEMENTS
JONES V. SPARKS
OPINION AFFIRMING
** ** ** ** ** BEFORE: LAMBERT AND STUMBO, JUDGES; HENRY,1 SENIOR JUDGE.
LAMBERT, JUDGE: Harry and Anita Jones appeal from the Estill Circuit Court’s judgment in favor of Teresa Sparks, Individually et al., in an action to enforce the use of an alleged easement. After careful review, we affirm.

On appeal, the Joneses argue that the trial court improperly determined that they were not entitled to an easement by estoppel, an implied easement, or that the appellees were unjustly enriched. The Joneses also argue that the trial court improperly allowed testimony about statements Stamper made before he died regarding the alleged easement.

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