COA 2010 Minutes June 4, 2010 (Nos.534-547) (Plus the ‘Tort Report’)

COA 2010 Minutes June 4,
2010 (Nos.534-547)

  • Above link to minutes is full text of minutes with link to full
    text
    of each decision.
  • 15 decisions
  • Published Decisions:  4 (534; 537; 538; 540)

PUBLISHED DECISIONS WITH SHORT SYNOPSIS AND LINK TO FULL TEXT OF
EACH:

534 – REAL PROPERTY
COLLINS (SAM), ET AL. VS. LEWIS (LEROY)
OPINION AFFIRMING
ACREE (PRESIDING JUDGE) CAPERTON (CONCURS) AND THOMPSON (CONCURS)
2008-CA-001832-MR
TO BE PUBLISHED
LESLIE

ACREE, JUDGE: The appellants, the Collins heirs, seek reversal of the Leslie Circuit Court’s order for sale of real property owned by appellants and appellee, Leroy Lewis, in Leslie County. The appellants failed to present evidence that the value of the property would not be materially impaired upon division. The court was satisfied with the evidence presented by appellee that the value would be materially impaired if divided and ordered the property sold. We affirm.

537 – CRIMINAL; INVESTIGATORY HEARSAY; HARMLESS ERROR
BURCHETT (LATISHA) VS. COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
VANMETER (CONCURS) AND COMBS (CONCURS BY SEPARATE OPINION)
2009-CA-000324-MR
TO BE PUBLISHED
ADAIR

KELLER, JUDGE: A jury convicted Latisha Burchett (Burchett) of fleeing or evading the police, first degree; wanton endangerment, first degree; and operating a motor vehicle under the influence (DUI). The jury recommended a total sentence of ten years and the trial court entered a judgment and sentence consistent with the jury’s decision and recommendation. Burchett appeals that judgment arguing that the trial court erred when it permitted “investigative hearsay” to be introduced into evidence. For the following reasons, we affirm.

538 – CIVIL PROCEDURE; SOL
STEADMAN (JAMES W.) VS. GENTRY (ROGER), ET AL.
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
ACREE (CONCURS) AND THOMPSON (CONCURS)
2009-CA-000332-MR
TO BE PUBLISHED
BARREN

NICKELL, JUDGE: James W. Steadman, pro se, has appealed from the Barren Circuit Court’s January 30, 2009, order denying his motion to reconsider the January 21, 2009, order granting partial summary judgment in favor of Roger Gentry.1    After a careful consideration of the record, the briefs and the law, we affirm.

Steadman was arrested in Texas on an outstanding Barren County, Kentucky, arrest warrant and was extradited to Kentucky on May 31, 2005, where he was housed at the Barren County Detention Center. On July 24, 2006, Steadman filed his initial complaint against the Barren County Fiscal Court; Leland Cox, the Barren County Jailer; Sharon Buckley, a captain at the jail; the Louisville-Jefferson Urban County Government; and John Campbell, director of the Louisville-Jefferson Metro Department of Corrections.2    Campbell and Louisville-Jefferson Urban County Government were dismissed as parties in early 2007.
On March 21, 2007, Steadman moved the circuit court for leave to file an amended complaint alleging a new claim that he was assaulted on August 1, 2006, by Buckley and Gentry while he was incarcerated.3   

In the case sub judice, using the guidance set forth above, Steadman commenced his action against Gentry on March 18, 2008, the date a summons was issued by the Barren Circuit Court. Clearly, this is outside the one-year time limitation established by KRS 413.140 as was correctly found by the circuit court in granting Gentry’s motion for summary judgment.
Nevertheless, though he did not request any additional summons to be issued, Steadman contends he should not be punished for what he perceives to be the error of the circuit court clerk in failing to issue the summons for Gentry upon receipt of his amended complaint. In support of his contention, Steadman argues the recent decision of the Supreme Court of Kentucky in Nanny v. Smith, 260 S.W.3d 815 (Ky. 2008), is controlling and mandates reversal of the circuit court’s judgment. However, Steadman’s reliance on Nanny is misplaced. In Nanny, the plaintiff delivered her complaint to the circuit clerk on a Friday. The statute of limitations on the claims in her complaint were set to expire on the following day, a Saturday, so she actually had until Monday to commence her action. The clerk failed to issue a summons until Tuesday, the day after the statute had run. The Supreme Court held the clerk’s error in failing to issue the summons forthwith when the complaint was filed violated CR 4.01(1) and therefore the statute was equitably tolled.

Here, Steadman filed his amended complaint quite some time prior to the expiration of the limitation period. Because this was not an original action, no summons could be issued until the circuit court entered an order allowing the filing of the amended pleading. Such order was entered on March 27, 2007. As the limitations period did not expire until August 1, 2007, Steadman had nearly four months to ensure the summons had been issued before being barred by the statute of limitations. Despite this extended amount of time to ensure process was issued, he did not instruct the circuit court clerk regarding the issuance of any additional summonses until March of 2008, some seven months after the limitations period had expired and nearly one year after the filing of the amended complaint. Steadman’s lack of diligence is fatal to his claim and his reliance on Nanny is misplaced, as the Supreme Court based its decision on Nanny’s due diligence.

540 – FAMILY LAW; MOOT
C. (A.) VS. COMMONWEALTH OF KENTUCKY
OPINION AND ORDER VACATING AND REMANDING AND DENYING MOTION TO DISMISS
MOORE (PRESIDING JUDGE)
CAPERTON (CONCURS) AND BUCKINGHAM (SENIOR STATUS JUDGE)(CONCURS)
2009-CA-000714-ME
TO BE PUBLISHED
JESSAMINE

MOORE, JUDGE: A. C., a female child, appeals the order of the Jessamine Family Court finding her in contempt of court and ordering her to be detained until placed in a home by the Cabinet for Health and Family Services (Cabinet), Department for Community Based Services (DCBS), but for no more than thirty days. The Commonwealth of Kentucky moves to dismiss the appeal on the basis that it is moot because A. C. has been released from the DCBS’s commitment. After a careful review of the record, we vacate the family court’s order because it is beyond dispute that A. C.’s probation period expired before the court found her in violation of a valid court order, i.e., a juvenile probation violation. We deny the Commonwealth’s motion to dismiss because the issues involved in this appeal are not moot.

TORT REPORT – CASES ON CIVIL, CIVIL PROCEDURE, INSURANCE, WORKERS COMP:

545 – WORKERS COMPENSATION
BURROUGHS (RON) VS. MARTCO , ET AL.
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
DIXON (CONCURS) AND THOMPSON (CONCURS IN RESULT ONLY)
2009-CA-001551-WC
NOT TO BE PUBLISHED
WORKERS' COMP

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