COA: November 3, 2017 Court of Appeals Decisions (Minutes)

Nos. 929-941: 13Decisions Posted with a 2 decisions designated 'to be published' with links to full text of each decision


937.  Criminal Law.  Due Process and Missing Evidence Instruction.
Anderson v. Commonwealth of Kentucky
Affirmed trial court order denying missing evidence instruction in second trial regarding evidence destroyed at conclusion of first trial.  Allowed photographs.
[T]o make out a due process violation where evidence has been destroyed a defendant must show (1) the Commonwealth acted in bad faith in destroying the evidence; (2) the potential exculpatory value of the evidence was apparent before its destruction; and (3) the evidence destroyed was, at least somewhat, irreplaceable.

939.  Child Support Arrearages. Laches and Estoppel by Acquiescence.
Dixon v. Dixon
Affirmed family court ruling of no arrearages.
The doctrine of laches is based in equity and premised on the question of whether a party has failed or neglected to assert their rights within a reasonable period of time where the delay has acted to the disadvantage of the other party. Wigginton v. Com. ex rel. Caldwell, 760 S.W.2d 885, 887 (Ky. App. 1988). The court found that Karen had failed to consistently pursue her claim. The court based this finding on the court’s order of July 28, 2014, that no arrearages were due noting that Karen did not object; the fact that no request for a hearing on the issue was made until almost two years after the original motion on the issue; and that she failed to bring the issue up until more than a year after Charles stopped making the mortgage payments on the marital residence.

While the court applied the doctrine of laches to this case, we find that the facts of this case more fairly fit an estoppel by acquiescence, but result in the same outcome based upon the same facts. The doctrine of estoppel by acquiescence is applied to transactions in which it would be unconscionable to permit a person to maintain a position which is inconsistent with one in which he has previously acquiesced. Sparks v. Trustguard Ins. Co., 389 S.W.3d 121, 126-27 (Ky. App. 2012).

Selected cases that were not designated for publication in tort, insurance and civil law. None.

929.  Multiple claims and claimants against Louisville Police Detective.  Qualified Official Immunity.
Washington v. Crystal Marlowe

The parties should not misconstrue this Opinion as deciding Marlowe’s ultimate liability upon the relevant underlying claims. To maintain an actionable negligence claim, the plaintiff must demonstrate duty, breach, causation, and injury. Wright v. House of Imports, Inc., 381 S.W.3d 209 (Ky. 2012). This Opinion only addresses with the elements of duty and breach in connection with qualified official immunity. Upon remand, in order for claimants to prevail upon their claims:

[T]here must be a causally related “violation of a constitutional, statutory, or other clearly established right” of the complainant. Id. It is these causally related violations or acts which are measured against the standards of discretionary or ministerial duties, not the distant myriad acts or omissions that one could logically construct to have preceded them. “[I]f one retreats far enough from a … violation [, a distant act or omission] can be identified behind almost any such harm inflicted  . . . . At the very least there must be an affirmative link between [the act or omission] and the . . . violation alleged.” City of Oklahoma City v. Tuttle, 471 U.S. 808, 823, 105 S. Ct. 2427, 2436, 85 L. Ed. 2d 791 (1985).

Sloas, 201 S.W.3d at 476.


938.  Default Judgement.  Dismissal for Lack of Prosecution.
Price v. Norrington
Affirmed denial of default judgment and dismissed for lack of prosecution.


For the index to archived minutes at the official AOC page, then click here.

For more information on unpublished decisions and obtaining case information, then continue reading below the fold.

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.”)

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, amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.