Feb. 17, 2012 COA Minutes — Nos. 169- 194 (26 decisions; 2 published)

Feb. 17, 2012 COA Minutes —    Nos. 169- 194 (26 decisions; 2 published)

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PUBLISHED DECISIONS OF COA:

177.  ADMINISTRATIVE/REGULATORY LAW: MINING
LAUREL MOUNTAIN RESOURCES, LLC, ET AL.
VS.
ENERGY AND ENVIRONMENT CABINET, ET AL.
OPINION REVERSING AND REMANDING
LAMBERT (PRESIDING JUDGE)
TAYLOR (CONCURS) AND CLAYTON (CONCURS)
2010-CA-001860-MR
TO BE PUBLISHED
FRANKLIN

LAMBERT, SENIOR JUDGE: This appeal arises from an order of the Secretary of the Commonwealth of Kentucky, Energy and Environment Cabinet (“the Cabinet”) denying a “Lands Unsuitable for Mining” petition filed by Beverly May but nonetheless imposing numerous restrictive conditions on all future surface coal mining in the petition area. The order was affirmed by the Franklin Circuit Court. Appellants Laurel Mountain Resources, LLC (as successor in interest to Miller Bros. Coal, LLC) and Gene D. Campbell2 challenge the determination on a variety of grounds. After careful consideration of the record and the parties’ arguments, we reverse and remand for further proceedings consistent with this opinion.

194.  APPEALS.  TIMELY FILING AND SHOW CAUSE.
WILLIS (AARON LAMONT)
VS.
WILLIS (DARLENE DENISE)
OPINION AND ORDER DISMISSING
KELLER (PRESIDING JUDGE)
COMBS (CONCURS) AND VANMETER (CONCURS)
2011-CA-001519-MR
TO BE PUBLISHED
BOYD

KELLER, JUDGE: On August 26, 2011, this Court gave the appellant twenty days to show cause why this appeal should not be dismissed for failing to timely file the notice of appeal. The appellant has filed a response to the show cause order.

We sympathize with the appellant; however, this appeal must be dismissed as untimely. It is clear that the Kentucky Supreme Court has recognized that incarcerated appellants should be entitled to some “saving” mechanism that provides some leniency in applying the strict filing requirements for notices of appeal. The mechanism in RCr 12.04(5) only applies to inmates because they do not have access to any means of

transmitting documents to the courts other than through the prison internal mail system. The Kentucky Supreme Court could have extended the prison mailbox rule to all documents filed by prison inmates based on the underlying rationale for the rule, but it chose not to do so. We are constrained to abide by that choice. See, e.g., Rules of the Supreme Court 1.030(8)(a) (“The Court of Appeals is bound by and shall follow applicable precedents established in the opinions of the Supreme Court and its predecessor court.”). Compare with State v. Parker, 936 P.2d 1118, 1119 (Utah App. 1997)(declining to adopt prison mailbox rule for lack of authority because adoption of rule of procedure should be left to the state supreme court which has the authority for drafting the rules of appellate procedure).

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173. APPEALS.  FINALITY. PENDING MOTION TO AMEND COMPLAINT.
CROSS (JASON H.), ET AL.
VS.
COX (LELAND E.), ET AL.
OPINION DISMISSING AND REMANDING
MOORE (PRESIDING JUDGE)
STUMBO (CONCURS) AND WINE (CONCURS)
2010-CA-001511-MR
NOT TO BE PUBLISHED
BARREN

This appeal arises out of two summary judgments granted to Barney Jones, Sheriff of Barren County, in both his individual and official capacities, and Deputy Sheriff Leland Cox, in his individual capacity. There, however, remains a pending motion to amend the complaint before the circuit court. Because all issues in the case have not been decided, the case is not final. Accordingly, this Court lacks jurisdiction to decide the matter, and it is hereby DISMISSED and REMANDED for a ruling on the pending motion and proceedings not inconsistent with this opinion.

176.  TORTS. PREMISES LIABILITY.  IMPEACHMENT; SUBSEQUENT REMEDIAL MEASURES.
SINKHORN (CARL)
VS.
THE OXFORD APARTMENT CLUB RESORT, LLC
OPINION AFFIRMING
CAPERTON (PRESIDING JUDGE)
COMBS (CONCURS) AND THOMPSON (CONCURS)
2010-CA-001826-MR
NOT TO BE PUBLISHED
JEFFERSON

We now turn to Sinkhorn’s first and only remaining argument, that the trial court abused its discretion when it failed to allow Sinkhorn to introduce evidence of impeachment under KRE 407, and such was not harmless error.

Our standard of review of evidentiary rulings is for abuse of discretion. “The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000), citing

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Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Further, no evidentiary error shall be grounds for reversal unless it affects the substantial rights of the parties. CR 61.01. We now focus our analysis on KRE 407.

KRE 407 states:

When, after an event, measures are taken which, if taken previously, would have made an injury or harm allegedly caused by the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

KRE 407.
By the very language of the rule, evidence of subsequent remedial repairs for

impeachment purposes is permitted in limited circumstances. KRE 407. See also Noe v. O'Neil, 314 Ky. 641, 646, 236 S.W.2d 893, 896 (1951). Also, allowing evidence of remedial measures is contrary to the public policy underlying the disallowance of such evidence. The rationale behind the public policy is that by disallowing evidence of remedial measures at trial, parties will perform remediation without concern for adverse consequences if a court action is the ultimate result. Commonwealth, Cabinet for Health and Family Services v. Chauvin, 316 S.W.3d 279, 303 (Ky. 2010) (citing to Robert G. Lawson, Modifying the Kentucky Rules of Evidence—A Separation of Powers Issue, 88 Ky. L.J. 581– 585 (2000).

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Care must be taken so that the general rule barring admission of subsequent remedial measures is not swallowed by the exception of permitting evidence to be used for impeachment and, thereby, preventing the exception from “being used as a subterfuge to prove negligence.” Robert G. Lawson, The Kentucky Evidence Law Handbook (4th ed.2003) § 2.45[4][b]. As noted by Professor Lawson, Petree v. Victor Fluid Power, Inc., 887 F.2d 34 (3d Cir. 1989), provides a “superb analysis of the impeachment exception and a fairly full review of federal cases.” Lawson at § 2.45[4][b].

We find particularly elucidating the Petree court’s citation in Probus v. K- Mart, Inc., 794 F.2d 1207, 1209 (7th Cir.1986), which noted, “it was insufficient that evidence of the subsequent remedial measure would impeach defendants' testimony since, if that were the sole requirement, the exception would be elevated to the rule.” Petree at 39. In light of such learned jurisprudence, we conclude that the trial court did not abuse its discretion in not allowing Sinkhorn to introduce evidence of subsequent remedial measures offered in the guise of impeachment.

Our review of the photographs introduced into evidence and published to the jury certainly demonstrates the confusion surrounding the color of the staircase. This lends credence to our jurisprudence that this Court is not a fact-finder and it is for the jury to determine the veracity of the testimony presented. See Cole v. Gilvin, 59 S.W.3d 468, 473 (Ky.App. 2001) (it has long been the province of the fact-finder to determine the credibility of witnesses and the weight to be given the evidence).

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The jury was presented with the photographs, the testimony of Lemons and Hessig, and the redirect of each of them explaining the possible variations in coloring and the timing of the photographs. Moreover, based on the record, we disagree with Sinkhorn that Lemons’s testimony opened the door to impeachment testimony concerning the color of the staircase and the timing of the photographs.

Specifically, counsel for Sinkhorn complains of the answers given by Lemons to his questions of her concerning change in coloration of the steps. The line of questioning appears to be designed to elicit testimony that remedial measures were performed subsequent to the accident. In light of the trial court’s ruling that evidence of remedial measures was not to be introduced, counsel can hardly expect remedial measures to be admitted into evidence when he asks questions designed to elicit testimony that remedial measures were performed, and then uses the less than satisfactory answers thereto as grounds to introduce the very evidence the trial court has ruled inadmissible. Finding no error, we affirm.

Based on the aforementioned, we affirm the judgment entered by the Jefferson Circuit Court.

ALL CONCUR.

CAPERTON, JUDGE: The appellant, Carl Sinkhorn, appeals from the Jefferson Circuit Court judgment entered on September 7, 2010, in favor of the Appellees (hereinafter “Oxford”) and the court’s ruling to exclude evidence at trial of Oxford’s subsequent remedial measures when said evidence was offered to impeach the testimony of Oxford’s witness. After a thorough review of the parties’ arguments, the record, and the applicable law, we affirm.

We now turn to Sinkhorn’s first and only remaining argument, that the trial court abused its discretion when it failed to allow Sinkhorn to introduce evidence of impeachment under KRE 407, and such was not harmless error.

Our standard of review of evidentiary rulings is for abuse of discretion. “The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000), citing

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Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Further, no evidentiary error shall be grounds for reversal unless it affects the substantial rights of the parties. CR 61.01. We now focus our analysis on KRE 407.

KRE 407 states:

When, after an event, measures are taken which, if taken previously, would have made an injury or harm allegedly caused by the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

KRE 407.
By the very language of the rule, evidence of subsequent remedial repairs for

impeachment purposes is permitted in limited circumstances. KRE 407. See also Noe v. O'Neil, 314 Ky. 641, 646, 236 S.W.2d 893, 896 (1951). Also, allowing evidence of remedial measures is contrary to the public policy underlying the disallowance of such evidence. The rationale behind the public policy is that by disallowing evidence of remedial measures at trial, parties will perform remediation without concern for adverse consequences if a court action is the ultimate result. Commonwealth, Cabinet for Health and Family Services v. Chauvin, 316 S.W.3d 279, 303 (Ky. 2010) (citing to Robert G. Lawson, Modifying the Kentucky Rules of Evidence—A Separation of Powers Issue, 88 Ky. L.J. 581– 585 (2000).

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Care must be taken so that the general rule barring admission of subsequent remedial measures is not swallowed by the exception of permitting evidence to be used for impeachment and, thereby, preventing the exception from “being used as a subterfuge to prove negligence.” Robert G. Lawson, The Kentucky Evidence Law Handbook (4th ed.2003) § 2.45[4][b]. As noted by Professor Lawson, Petree v. Victor Fluid Power, Inc., 887 F.2d 34 (3d Cir. 1989), provides a “superb analysis of the impeachment exception and a fairly full review of federal cases.” Lawson at § 2.45[4][b].

We find particularly elucidating the Petree court’s citation in Probus v. K- Mart, Inc., 794 F.2d 1207, 1209 (7th Cir.1986), which noted, “it was insufficient that evidence of the subsequent remedial measure would impeach defendants' testimony since, if that were the sole requirement, the exception would be elevated to the rule.” Petree at 39. In light of such learned jurisprudence, we conclude that the trial court did not abuse its discretion in not allowing Sinkhorn to introduce evidence of subsequent remedial measures offered in the guise of impeachment.

Our review of the photographs introduced into evidence and published to the jury certainly demonstrates the confusion surrounding the color of the staircase. This lends credence to our jurisprudence that this Court is not a fact-finder and it is for the jury to determine the veracity of the testimony presented. See Cole v. Gilvin, 59 S.W.3d 468, 473 (Ky.App. 2001) (it has long been the province of the fact-finder to determine the credibility of witnesses and the weight to be given the evidence).

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The jury was presented with the photographs, the testimony of Lemons and Hessig, and the redirect of each of them explaining the possible variations in coloring and the timing of the photographs. Moreover, based on the record, we disagree with Sinkhorn that Lemons’s testimony opened the door to impeachment testimony concerning the color of the staircase and the timing of the photographs.

Specifically, counsel for Sinkhorn complains of the answers given by Lemons to his questions of her concerning change in coloration of the steps. The line of questioning appears to be designed to elicit testimony that remedial measures were performed subsequent to the accident. In light of the trial court’s ruling that evidence of remedial measures was not to be introduced, counsel can hardly expect remedial measures to be admitted into evidence when he asks questions designed to elicit testimony that remedial measures were performed, and then uses the less than satisfactory answers thereto as grounds to introduce the very evidence the trial court has ruled inadmissible. Finding no error, we affirm.

Based on the aforementioned, we affirm the judgment entered by the Jefferson Circuit Court.

ALL CONCUR.

180.  SANCTIONS.  RULE 11.
DETERS (ERIC), ET AL.
VS.
KENTON COUNTY
OPINION AND ORDER DISMISSING
NICKELL (PRESIDING JUDGE)
CLAYTON (CONCURS) AND MOORE (CONCURS)
2010-CA-002317-MR
NOT TO BE PUBLISHED
KENTON

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