COA 2011 Minutes for Feb. 25, 2011 — Nos. 182 – 201

COA 2011 Minutes for Feb. 25, 2011 –  Nos. 182 – 201 

  • Click on the above link for the full text of minutes with link to full text of each decision.
  • Link to AOC Page with current minutes and archived minutes links
  • Total number of decisions:  43
  • Published Decisions: 4 (145; 146; 158; 160)
PUBLISHED DECISIONS (with link to full text at AOC):

184.  Contempt and specific findings.
LANHAM (LINDA) VS. LANHAM (DIRK)
OPINION AFFIRMING
WINE (PRESIDING JUDGE) CLAYTON (CONCURS) AND COMBS (CONCURS)
2009-CA-001025-MR
TO BE PUBLISHED
CRITTENDEN

WINE, JUDGE: Linda Lanham appeals from an order of the Crittenden Circuit Court holding her in contempt for failing to comply with the terms of a divorce decree and order entered by the court. Linda argues on appeal that she was denied due process and that the Crittenden Circuit Court abused its discretion by holding her in contempt without making a specific finding that she had the ability to conform to the order. Linda further argues that the trial judge is not an indispensable party to this appeal. We agree that the trial judge is not an indispensable party to the appeal. Accordingly, we reach the merits of this case and further hold that the Crittenden Circuit Court did not abuse its discretion by failing to make specific findings regarding Linda’s ability to conform to its order.

189.  Criminal Law.  Sentencing.  Restitution limitations.
MORSEMAN (SHAWN A.) VS. COMMONWEALTH OF KENTUCKY
OPINION VACATING AND REMANDING
CAPERTON (PRESIDING JUDGE)
COMBS (CONCURS) AND LAMBERT (DISSENTS AND FILES SEPARATE OPINION)
2009-CA-001932-MR
TO BE PUBLISHED
WEBSTER

CAPERTON, JUDGE: Shawn A. Morseman appeals from the Webster Circuit Court order of restitution in the amount of $48,597.02 to Amica Mutual Insurance Company. On appeal, Morseman argues that the trial court erred in its determination as to the amount of restitution, to which the Commonwealth disagrees. After a review of the parties’ arguments, the record, and the applicable law, we reverse the order of restitution and remand this matter to the trial court for further proceedings.

On appeal, Morseman presents a single argument, namely, that the trial court abused its discretion in ordering restitution in an amount that represented losses sustained from a crime for which Morseman was not guilty. In response, the Commonwealth argues that the trial court did not abuse its discretion when setting the amount of restitution as the amount was a condition of the plea agreement and conforms to the relevant restitution statutes. Additionally, the Commonwealth argues that the trial court’s findings at the restitution hearing were not clearly erroneous as there was substantial evidence that Morseman’s acts resulted in the full amount claimed by the insurance company/victim. With these arguments in mind, we now turn to the applicable law.

Restitution has been defined as compensation paid by a convicted person to a victim for property damage and other expenses sustained by that victim because of the convicted person's criminal conduct. KRS 532.350(1). In short, restitution is merely a system designed to restore property or the value thereof to the victim. Upon ordering restitution, the trial judge is required to set the amount of restitution to be paid. KRS 532.033(3).
The purpose of restitution, as explained in Commonwealth v. Bailey, 721 S.W.2d 706, 707 (Ky. 1986), is not an “additional punishment exacted by the criminal justice system . . . . It is merely a system designed to restore property or the value thereof to the victim.” In addition, according to Hearn v. Commonwealth, 80 S.W.3d 432, 436 (Ky. 2002), the “trial court has the statutory authority to establish restitution and is in the best position to make the appropriate and well-informed decision in a fair and impartial manner.”

Upon ordering restitution, the trial judge is required to set the amount of restitution to be paid. KRS 532.033(3). Further, the judge ordering restitution is required to monitor payment to assure that restitution is in fact paid. KRS 532.033(4). Thus, KRS Chapter 532 places the issue of restitution solely within the discretion of the trial judge.

The test for abuse of discretion is whether the trial court's decision was “arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted). Because KRS 532.033(3) charges the trial court with setting the amount of restitution, the statute contemplates that the trial court is the fact-finder in the matter. Accordingly, appellate review of the trial court's findings of fact is governed by the rule that such findings shall not be set aside unless clearly erroneous. CR 59.01. A factual finding is not clearly erroneous if it is supported by substantial evidence. Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998). Substantial evidence is evidence which, when taken alone or in light of all the evidence, has sufficient probative value to induce conviction in the mind of a reasonable person. Id.

While the parties argue extensively about the evidence relating to the arson indictment, we find this to be immaterial to our determination. We believe the statutes concerning restitution provide no authority to impose restitution in an amount other than in the amount of actual loss incurred from appellant's illegal conduct for which he was convicted. KRS 533.030 speaks of monetary damages suffered “as a result of the crime.” Given that Morseman only pled guilty to Fraudulent Insurance Acts by Complicity and not Arson, the amount of restitution must have a nexus with the crime to which he pled guilty. Thus, we must reverse the order of restitution and remand this to the trial court to make specific findings on the monetary damages suffered as a result of Morseman’s complicity to the fraudulent insurance acts.

192.  Civil Procedure, trial:  Supplementing Answers at trial to damages interrogatories;  Hearsay.
ENGLE (CHARLES) VS. BAPTIST HEALTHCARE SYSTEM, INC.
OPINION REVERSING AND REMANDING AS TO 2009-CA-2170; AFFIRMING AS TO 2009-CA-2209
MOORE (PRESIDING JUDGE)
DIXON (CONCURS) AND ISAAC (CONCURS)
2009-CA-002170-MR
2009-CA-002209-MR
TO BE PUBLISHED
WHITLEY

MOORE, JUDGE: This matter involves an appeal and protective cross-appeal of a defense verdict in a medical negligence action regarding care and treatment provided to Jeanette Rose by Baptist Healthcare System, Inc., d/b/a Baptist Regional Medical Center (Baptist). After careful review, we reverse the defense verdict and remand this matter for a new trial.

e have determined that Engle properly raised and preserved a hearsay objection to admitting the DCBS report into evidence. Furthermore, we agree with Engle’s contention that the DCBS report was hearsay that was not admissible as evidence under KRE 803(8). In Jordan v. Commonwealth, 74 S.W.3d 263 (Ky. 2002), the Supreme Court of Kentucky scrutinized an investigative report substantially similar to the DCBS report at issue in this matter, a report known as a “DSS-150.” The DSS-150 was written by DCBS’s predecessor agency, the Cabinet for Human Resources, Department for Social Services.3    Similarly, the DSS-150 concerned an investigation of abuse, neglect, and dependency allegations; contained a social worker’s nonjudicial determination that an allegation was “substantiated”; and the DSS-150 was presented as rebuttal evidence in a case involving similar facts, but a different standard of law (i.e., it was presented by the Commonwealth as rebuttal evidence in a criminal rape trial). Id. at 267. After considering this report, the Supreme Court determined that the trial court abused its discretion by allowing it into evidence: . . . .

Although Baptist received a defense verdict, it filed a cross-appeal regarding the trial court’s instructing the jury on punitive damages. Engle’s complaint, filed November 24, 2004, requested an unspecified amount of punitive damages. Baptist requested answers to interrogatories, and one of Baptist’s interrogatories asked Engle to categorize and specify the amount of his damages. In his answer to Baptist’s interrogatory, Engle made no reference to punitive damages.

However, Baptist presents no authority supporting that a motion to supplement answers to interrogatories is improper within the meaning of Fratzke if it is made after the close of evidence but prior to submitting a matter to the jury. Moreover, Fratzke merely holds that a motion to supplement answers to interrogatories may be granted as late as during trial. We have determined that a new trial is warranted in this matter, the new trial in this matter has yet to occur, and Baptist presents no authority that would prohibit Engle from moving to supplement his answers during the course of retrial. Therefore, we find no error in the trial court’s decision to grant Engle leave to amend his answers to Baptist’s interrogatories.

197.  Attorneys.  Fees.
CLARK (JOSEPH STEVEN) VS. HECTUS & STRAUSE PLLC, ET AL.
OPINION REVERSING AND REMANDING
LAMBERT (PRESIDING JUDGE)
CLAYTON (CONCURS) AND MOORE (CONCURS)
2010-CA-000008-MR
TO BE PUBLISHED
MARION

LAMBERT, SENIOR JUDGE: Joseph Steven Clark appeals from the Marion Circuit Court’s entry of summary judgment in favor of Hectus & Strause, PLLC and C. Thomas Hectus. Appellant filed suit against Appellees seeking reimbursement of all or part of a $10,000 fee paid to Appellees during their representation of Appellant in a criminal matter. Appellant contended that he was entitled to reimbursement of all or some of this amount because his case did not go to trial. Because the written fee agreement between the parties is ambiguous as to the question of whether Appellant would be entitled to partial reimbursement of the subject fee in the event that the case did not proceed to trial, we hold that summary judgment was entered erroneously. Thus, we reverse and remand for further proceedings.

Nonpublished Tort, Procedure, etc:


182. Workers Compensation.  Assignment of claims.
KENTUCKY EMPLOYERS' MUTUAL INSURANCE
VS.
NOVATION CAPITAL, LLC, ET AL.
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
CAPERTON (CONCURS) AND LAMBERT (CONCURS)
2008-CA-000449-MR
NOT TO BE PUBLISHED
ROCKCASTLE

THOMPSON, JUDGE:    Kentucky Employers’ Mutual Insurance (KEMI) appeals an order of the Rockcastle Circuit Court requiring KEMI to transfer workers’ compensation benefits payable to Jeffrey K. Taylor to Novation Capital, LLC.  KEMI alleges that the Workers’ Compensation Board had exclusive subject matter jurisdiction and that Taylor was precluded from assigning his benefits to a third- party under KRS 342.180, which prohibits the assignment of a claim for workers’ compensation benefits. The circuit court rejected both contentions. We affirm.

200.  Workers Comp
SIDNEY COAL COMPANY, INC.
VS.
KIRK (PAUL), ET AL.
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
VANMETER (CONCURS) AND WINE (CONCURS)
2010-CA-000809-WC
NOT TO BE PUBLISHED
WORKERS' COMP

THOMPSON, JUDGE: Sidney Coal Company, Inc. appeals a decision of the Kentucky’s Workers’ Compensation Board affirming the Administrative Law Judge’s (ALJ) ruling on Paul Kirk’s physical impairment and hearing loss award and modifying the ALJ’s benefit award. For the reasons stated, we affirm.

 

 

 

 

 

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