COA 2011 Minutes for January 21, 2011 (Nos. 57 – 74) ( 6 to be published)

COA 2011 Minutes for January 21, 2011    (Nos. 57 – 74) 

  • 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:  18
  • Published Decisions: Six (57; 59; 60; 67; 71; 73)
PUBLISHED DECISIONS (with link to full text at AOC):

57. CRIMINAL PROCEDURE.  MOTION TO SUPRESS EVIDENCE.
LEATHERMAN (RACHEL)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
TAYLOR (CONCURS) AND HENRY (SENIOR STATUS JUDGE) (CONCURS)
2008-CA-000849-MR
TO BE PUBLISHED
MCCRACKEN

LAMBERT, JUDGE: Rachel Leatherman directly appeals from the judgment of the McCracken Circuit Court following a jury trial convicting her of possession of a controlled substance (cocaine), tampering with physical evidence, and operating a motor vehicle under the influence of alcohol or drugs. As a result of those convictions, the trial court sentenced Leatherman to a total of eight years’ imprisonment. On appeal, Leatherman challenges the trial court’s failure to suppress evidence obtained in conjunction with the investigatory stop and her subsequent arrest, the trial court’s granting of the Commonwealth’s motion in limine that prohibited her from mentioning her statement to Deputy McGuire, and the trial court’s failure to grant a directed verdict on the DUI charge. Having thoroughly reviewed the record on appeal and the parties’ briefs, we affirm the judgment of conviction.

STANDARD OF REVIEW FOR MOTION TO SUPPRESS REFERENCED:
Our standard of review from a denial of a motion to suppress is twofold. First, we must determine whether the findings of fact are supported by substantial evidence. If so, those findings are conclusive. Kentucky Rules of Criminal Procedure (RCr) 9.78; Adcock v. Commonwealth, 967 S.W.2d 6, 8 (Ky. 1998). If not, the factual findings must be overturned as clearly erroneous. Farmer v. Commonwealth, 169 S.W.3d 50, 53 (Ky. App. 2005). Second, we must perform a de novo review of those factual findings to determine whether the lower court’s decision is correct as a matter of law. Ornelas v. United States, 517 U.S. 690, 697, 116 S. Ct. 1657, 1662, 134 L. Ed. 2d 911 (1996); Commonwealth v. Banks, 68 S.W.3d 347, 349 (Ky. 2001); Garcia v. Commonwealth, 185 S.W.3d 658, 661 (Ky. App. 2006); Stewart v. Commonwealth, 44 S.W.3d 376, 380 (Ky. App. 2000).

59. EMPLOYMENT LAW.  ARBITRATION AGREEMENTS. COA DECISION ON REMAND FROM SCOKY.
JACOB (ROBERT A.)
VS.
DRIPCHAK (PHILIP O.), ET AL.
OPINION AND ORDER AFFIRMING IN PART, REVERSING IN PART, AND REMANDING WITH DIRECTIONS
TAYLOR (PRESIDING JUDGE)
COMBS (CONCURS) AND NICKELL (CONCURS)
2008-CA-001157-MR
TO BE PUBLISHED
JEFFERSON
TAYLOR, CHIEF JUDGE: This case is before us upon remand from the Kentucky Supreme Court by Opinion and Order dated August 18, 2010. The Supreme Court vacated our opinion rendered August 21, 2009. The Supreme Court ordered the Court of Appeals to reconsider our opinion as concerns the application of Kentucky Revised Statutes (KRS) 417.050 to this case. Presumably, the Supreme Court is referring to the provision set forth therein which states that the Kentucky Arbitration Act as set forth in KRS Chapter 417 does not apply to arbitration agreements between employers and employees. We agree that KRS 417.050, by its plain language, excludes employment agreements from coverage under KRS 417, the Kentucky Arbitration Act. However, we do not interpret the statute as prohibiting, invalidating, or otherwise precluding the enforceability of arbitration clauses contained in employment contracts nor does it otherwise limit Kentucky courts from consideration of same. The statute does not proclaim nor can we interpret that it was the intent of the legislature to implement such a policy upon enactment of KRS 417.050. The statute does, by its plain language, exclude arbitration clauses contained in employment contracts from application of the procedural rules set forth throughout KRS Chapter 417 that are applicable to various arbitration clauses. We would further note that both parties in this case have proceeded throughout the litigation in both the circuit court and before the Court of Appeals, including oral argument before this Court, contending that various provisions of KRS Chapter 417 were applicable to this case, including KRS 417.160 relating to the powers exercised by the arbitrator. We also note that neither party raised any issues regarding the application of KRS 417.050 to this case before this Court or the circuit court below.

Notwithstanding, the opinion previously rendered by this Court on August 21, 2009, reaches a result not based upon the Kentucky Arbitration Act, but rather applicable Kentucky law governing contracts and contractual relationships. As the Kentucky Supreme Court has previously said on numerous occasions, arbitration agreements are a matter of contract and are interpreted according to state law. Oakwood Mobile Homes, Inc. v. Sprowls, 82 S.W.3d 193 (Ky. 2002). Accordingly, our review and opinion is premised upon applicable contract law and the interpretation of the two employment contracts that were at issue in this case. Even if KRS 417.050 precluded the arbitration of these employment contracts, the result reached in our earlier opinion would not change. Our review thus proceeds accordingly.

Robert A. Jacob, M.D. brings this appeal from a May 13, 2008, judgment of the Jefferson Circuit Court confirming an arbitration award entered on November 10, 2007, and as clarified on January 28, 2008, in favor of Bluegrass Orthopaedic Group, P.S.C. We affirm in part, reverse in part, and remand with directions.

For the foregoing reasons, the judgment of the Jefferson Circuit Court is reversed in part as concerns its confirmation of the arbitration award that grants Bluegrass damages under the 1997 employment agreement and renewals thereof prior to the effective date of the 2003 employment agreement. This case is further remanded to the Jefferson Circuit Court with directions to make a determination of damages, if any, that Bluegrass may be entitled to arising under the 2003 employment agreement. Additionally, the arbitration award in favor of Dr. Jacob is affirmed as all claims thereunder arose under the 2003 employment agreement and Bluegrass did not cross-appeal this award in Dr. Jacob’s favor.

60. CRIMIAL LAW.  NOTICE TO AG WHEN CHALLENGING CONSTITUTIONALITY OF STATUTE.
SMITH (CHARLES E.)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING APPEAL NO. 2008-CA-1340-MR AND AFFIRMING IN PART, VACATING IN PART, AND REMANDING WITH DIRECTIONS APPEAL NO. 2008-CA-1374-MR
TAYLOR (PRESIDING JUDGE)
CLAYTON (CONCURS) AND WINE (CONCURS)
2008-CA-001340-MR
2008-CA-001374-MR
TO BE PUBLISHED
MADISON

TAYLOR, CHIEF JUDGE: Charles E. Smith brings Appeal No. 2008-CA- 001340-MR from a July 2, 2008, judgment of the Madison Circuit Court upon a jury verdict finding him guilty of trafficking in a controlled substance in the first degree, possession of marijuana, and with being a persistent felony offender in the second degree. Deonte Simmons brings Appeal No. 2008-CA-001374-MR from a July 2, 2008, judgment of the Madison Circuit Court upon a jury verdict finding him guilty of complicity to commit trafficking in a controlled substance in the first degree and with being a persistent felony offender in the second degree. We affirm Appeal No. 2008-CA-001340-MR, and affirm in part, vacate in part, and remand with directions Appeal No. 2008-CA-001374-MR.

In the case sub judice, it is uncontroverted that neither Smith nor Simmons gave notice to the Attorney General of their challenge to the constitutionality of KRS 29A.040 as required by KRS 418.075 and CR 24.03.1    As such, we conclude that their challenge to the constitutionality of KRS 29A.040 is unpreserved and may not be reviewed on appeal. We now address Smith’s appeal.

67.  PROPERTY. JUDICIAL SALE, ABANDONED PROPERTY.
GREER (JAN)
VS.
ARROZ (VINCENT) AND ARROZ (SHIRLEY)
OPINION REVERSING AND REMANDING
THOMPSON (PRESIDING JUDGE)
CAPERTON (CONCURS) AND VANMETER (CONCURS)
2009-CA-001586-MR
TO BE PUBLISHED
LETCHER

THOMPSON, JUDGE: On September 26, 2007, Vincent and Shirley Arroz filed an action in the Letcher Circuit Court against Jan Greer alleging that on September 27, 2005, Greer purchased property owned by the Arrozes at a master commissioner sale and wrongfully exercised control over personal property owned by the Arrozes which was left on the real property. Because the Arrozes were required to assert their ownership interest in the personal property in the judicial sale proceedings and prior to Greer’s possession of the property, we reverse.

71.  BUSINESS LAW.  PARTNERSHIP.  DISSOLUTION.  OWNERSHIP OF ASSETS.
EVERSOLE (VIRGIL), ET AL.
VS.
MCCURLEY (CAROLE E.), ET AL.
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
MOORE (CONCURS) AND NICKELL (CONCURS)
2009-CA-001923-MR
TO BE PUBLISHED
HARLAN

LAMBERT, JUDGE: Courtenay Eversole and Virgil Eversole, III, appeal a partial summary judgment entered by the Harlan Circuit Court on September 18, 2009.
After careful review, we affirm the ultimate holding by the trial court that any partnership that existed among the parties is dissolved.

73.  FAMILY LAW.  PATERNITY AND BACK SUPPORT.  SETTING ASIDE PATERNITY.
DRAPER (JOHN)
VS.
COMMONWEALTH OF KENTUCKY, ET AL.
OPINION REVERSING AND REMANDING
WINE (PRESIDING JUDGE)
THOMPSON (CONCURS) AND VANMETER (CONCURS)
2010-CA-000112-ME
2010-CA-000185-ME
TO BE PUBLISHED
BARREN

WINE, JUDGE: John Draper (“Draper”), the biological father of A.N.H., appeals from a November 30, 2009, order of the Barren Circuit Court which granted the motions of Shannon Heacock (“Shannon”) to set aside earlier orders of paternity, child support, and joint custody. Shannon filed an appeal challenging the trial court’s sua sponte order entered the same day directing that she reimburse Draper for $11,762.00 for child support he paid to her for A.N.H. For the reasons set out below, we reverse and remand to reinstate the original orders adjudging Draper to be the father of A.N.H., and ordering child support, temporary joint custody, and visitation of A.N.H.

TORT REPORT:

65. EXPERTS. DISCLOSURES.  CLOSING ARGUMENTS.
PERRY (SUSIE), ET AL.
VS.
LARSON (GERALD M.), ET AL.
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
MOORE (CONCURS) AND STUMBO (CONCURS)
2009-CA-001352-MR
2009-CA-001389-MR
NOT TO BE PUBLISHED
JEFFERSON

KELLER, JUDGE: Susie Perry (Perry) individually and as administratrix of the estate of Michael Perry (Michael) appeals from the jury verdict and judgment in favor of Dr. Gerald M. Larson and University Surgical Associates, P.S.C. (collectively referred to as Larson). On appeal, Perry argues that the trial court erroneously admitted previously undisclosed expert opinion testimony, erroneously excluded her testimony, and erroneously dismissed her claim for loss of consortium. Perry also argues that Larson’s counsel improperly commented on the evidence during closing argument. Larson argues on cross-appeal that the trial court erroneously denied his motion for a directed verdict. Having reviewed the record, we affirm. 

 

 

 

 

 

 

 

 

 

 

 

 

 

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