Feb. 23, 2012 SCOKY Minutes

There were no January 2012 minutes for SCOKY.

There were decisions for February 2012.

Decisions:  1 through 22
22 decisions with 8 published

Click here for this month’s minutes (case names, questions presented for published decisions, and links to full text of each published and nonpublished decision)

Click here for an index to all monthly minutes of SCOKY.

PUBLISHED DECISIONS
(Number, NAME, ISSUE AND LINK TO FULL TEXT):

1. CORPORATIONS. PIERCING THE CORPORATE VEIL.
INTER-TEL TECHNOLOGIES, INC. AND INTER-TEL, INC.
V.
LINN STATION PROPERTIES, LLC AND INTERGRATED TELECOM
SERVICES CORP.
2009-SC-000819-DG
OPINION OF THE COURT BY JUSTICE ABRAMSON –
AFFIRMING
ALL SITTING. ALL CONCUR.

Questions Presented:
Corporations. Issues include the permissibility of piercing the corporate veil of a grandparent corporation to collect on a default judgment against the subsidiary corporation.

ABRAMSON:

Piercing the corporate veil is an equitable doctrine invoked by courts to allow a creditor recourse against the shareholders of a corporation. In short, the limited liability which is the hallmark of a corporation is disregarded and the debt of the pierced entity becomes enforceable against those who have exercised dominion over the corporation to the point that it has no real separate existence. A successful veil-piercing claim requires both this element of domination and circumstances in which continued recognition of the corporation as a separate entity would sanction a fraud or promote injustice. The leading Kentucky case on piercing, White v. Winchester Land Development Corp., 584 S.W.2d 56 (Ky. App. 1979), like decisions from courts across the country, refers to this two-part test as the “alter ego” test. In recent years, courts and commentators have recognized piercing by using various tests and formulations, most commonly the “alter ego” and “instrumentality” tests, and by identifying common characteristics of corporations which have forfeited the right to separate legal existence, the “equities” assessment referenced in White, 584 S.W.2d at 61. This case requires us to consider this important doctrine in the context of an increasingly common scenario, a creditor’s attempt to collect on debt incurred by a wholly-owned subsidiary where the subsidiary has been deprived of all income and rendered asset-less by the acts of its parent (and in this case also grandparent) corporation. While piercing the corporate veil, asone leading commentator has aptly noted, is a doctrine that can be characterized by “frustrating fluidity,” Stephen B. Presser, Piercing the Corporate Veil 9 (2011), we have no doubt that the case before us presents a clear example of circumstances under which entitlement to the privilege of separate corporate existence should be forfeited.

2.  CRIMINAL LAW.  JUVENILE LAW.  MANDAMUS.
K.R. (A/K/A J.W.), A CHILD
V.
COMMONWEALTH OF KENTUCKY
TO BE PUBLISHED
2010-SC-000076-DG JEFFERSON
OPINION OF THE COURT BY JUSTICE NOBLE – AFFIRMING
MINTON, C.J.; ABRAMSON, CUNNINGHAM, SCHRODER, AND
SCOTT, JJ., CONCUR. VENTERS, J.,CONCURS IN RESULT ONLY.

Questions Presented:
Juvenile. Criminal Law. Issues include the propriety of granting a writ of mandamus to compel transfer of a juvenile to circuit court based upon KRS 635.020(4).

OPINION OF THE COURT BY JUSTICE NOBLE AFFIRMING
This case comes before the Court on review of the Court of Appeals’ affirmance of entry of a writ of mandamus by the Jefferson Circuit Court requiring the Jefferson District Court to transfer Appellant, K.R., a/k/a J.W., to circuit court as a youthful offender pursuant to the mandatory transfer language in KRS 635.020(4) when a firearm is used in commission of a felony offense. For the reasons set forth herein, this Court affirms.

3. CRIMINAL PROCEDURE.  SEARCH. OPEN FIELD/CURTILAGE.
MICHAEL DUNN
V.
COMMONWEALTH OF KENTUCKY
TO BE PUBLISHED
2010-SC-000234-MR MONTGOMERY
OPINION OF THE COURT BY JUSTICE NOBLE – AFFIRMING
ALL SITTING. ALL CONCUR.

Questions Presented:
Five counts of first-degree sodomy-50 years. Permissible warrantless search of an area that was an “open field,” not the curtilage of defendant’s home. Request for bill of particulars regarding specific dates for incidents of sexual abuse was waived where the request was not renewed. Trial judge did not err in denying motion to allow evidence of witness’ prior allegation of sexual abuse or in refusing to provide portions of witness’ psychotherapy records.

OPINION OF THE COURT BY JUSTICE NOBLE AFFIRMING
Appellant Michael Dunn was convicted in Montgomery Circuit Court of five counts of first-degree sodomy. He was sentenced to ten years’ imprisonment for each count, to run consecutively for a total of fifty years. Appellant now challenges his convictions before this Court as a matter of right. Ky. Const. § 110(2)(b). This Court affirms.

4. CRIMINAL LAW. PFO. EXCUPATORY STATEMENTS.
JOSEPH THOMAS JAMES
V.
COMMONWEALTH OF KENTUCKY
TO BE PUBLISHED
2010-SC-000275-MR JEFFERSON

Questions Presented:
First degree rape, first degree unlawful imprisonment, fourth degree assault, violating a protective order and PFO- 35 years. Trial court did not err in denying the motion for directed verdict, where the jury could conclude from the proof that the victim was compelled by force or threat of force to submit to sex with the defendant. Victim’s statement which included her legal conclusions about her assailant’s conduct was not exculpatory. Admission of hearsay statements in medical records was harmless error. Rule of completeness. Prior consistent statements.

OPINION OF THE COURT BY JUSTICE NOBLE – AFFIRMING

Appellant, Joseph Thomas James, was convicted of first-degree rape, first-degree unlawful imprisonment, fourth-degree assault, violating a protective order, and being a persistent felony offender (PFO). On appeal, he claims the trial court erred by denying his motion for a directed verdict, the prosecutor failed to disclose exculpatory statements, hearsay evidence was improperly admitted, an incomplete version of his own statements to police was introduced, and prior consistent statements of a witness were improperly admitted. None of these claims of error requires reversal.

5. CRIMINAL LAW.
BRITTON L. MCPHERSON
V.
COMMONWEALTH OF KENTUCKY
TO BE PUBLISHED
2010-SC-000379-MR MUHLENBERG
OPINION OF THE COURT BY JUSTICE ABRAMSON – AFFIRMING
ALL SITTING. ALL CONCUR.

Questions Presented:
Murder-Life imprisonment. Trial court did not err in excluding evidence concerning the nature of accomplice’s prior crime or evidence of accomplice’s unrelated statements to the police. Trial court did not err in refusing to give a missing evidence instruction or in empanelling a second jury to recommend a sentence.

6. CRIMINAL LAW.  EVIDENCE (FLIGHT). PROSECUTOR’S COMMENTS.
BRADLEY ALLEN DAY
V.
COMMONWEALTH OF KENTUCKY
TO BE PUBLISHED
2009-SC-000641-DG BRACKEN
OPINION OF THE COURT REVERSING AND REMANDING
ALL SITTING. ALL CONCUR.

Questions Presented:
Criminal Law. Jury Question. Evidence of Flight. Discovery. The issues are: 1. whether the trial court erred by answering a jury question requesting the penalty range for a lesser included offense during guilt phase deliberations; 2. whether the trial court erred by admitting evidence regarding the defendant’s move to West Virginia as “flight” evidence; 3. whether the trial court erred by admitting forensic evidence where the Commonwealth could not demonstrate a chain of custody and the Commonwealth failed to timely turn over discovery regarding this evidence; and 4. whether the prosecutor’s comments were an improper appeal to local sympathy.

7. CORPORATIONS.  PIERCING CORPORATE VEIL.
THOMAS J. SCHULTZ
V.
GENERAL ELECTRIC HEALTHCARE
TO BE PUBLISHED
2010-SC-000183-DG JEFFERSON
FINANCIAL SERVICES, INC., ET AL.
OPINION OF THE COURT BY JUSTICE SCOTT –
REVERSING AND REMANDING
ALL SITTING. ALL CONCUR.

Questions Presented:
“Summary Judgment. Piercing the Corporate Veil.”

This is an appeal from an opinion of the Court of Appeals affirming the decision of the Jefferson Circuit Court. The trial court granted Appellees, General Electric Healthcare Financial Services, Inc., General Electric Company, and General Electric Capital Corporation (hereinafter collectively referred to as “GE”)1a judgment on the pleadings and awarded them a 5450,000 judgment against Thomas. Schultz, the sole shareholder of Intra-Med Services, Inc. (hereinafter “Intra-Med”). Based solely on the pleadings, the court pierced Intra-Med’s corporate veil, thereby allowing GE to obtain its judgment against Schultz. For the reasons that follow,’ we hold that the trial court improperly granted GE’s motion for judgment on the pleadings. We, therefore, reverse the decision of the Court of Appeals and remand this matter to the trial court for further proceedings.

8.  FAMILY COURT. JURISDICTION, ATTORNEYS FEES, SEPARATE CLAIM/FINALITY.
KATHLEEN WOODWARD MITCHELL AND MILLER, GRIFFIN & MARKS, P.S.C.
V.
RICHARD M. MITCHELL, JR.
TO BE PUBLISHED
2010-SC-000722-DG FAYETTE
OPINION OF THE COURT BY JUSTICE CUNNINGHAM –
REVERSING AND REMANDING
MINTON, C.J.; NOBLE, SCHRODER, SCOTT, AND VENTERS, JJ., CONCUR. ABRAMSON, J., CONCURS  IN RESULT ONLY.

Questions Presented:
Domestic Relations. Attorney’s Fees. The issue is the jurisdiction of the circuit court to award attorney’s fees in relation to defense of post-decree motions, to wit: defense of a motion to modify maintenance, where the trial court admits it mistakenly failed to rule on the defendant’s motion for fees in the final judgment addressing the plaintiff’s motion for modification.

The question presented in this case is whether the family court’s order denying Richard’s motion to modify maintenance divested that court of jurisdiction over Kathleen’s motion for attorney fees. “[W]hether [a] circuit court has jurisdiction—is purely a question of law, which is reviewed de novo.” Kentucky Employers Mut. Ins. v. Coleman, 236 S.W.3d 9, 13 (Ky. 2007) (citing Rehm v. Clayton, 132 S.W.3d 864, 866 (Ky. 2004)).

In this case, Kathleen’s motion for fees was made prior to the family court’s order denying Richard’s motion for modification. It was “counterclaimed” only after the request for modification was filed. Further, there were different facts supporting each motion. The basis for Richard’s motion for modification of maintenance was Kathleen’s attainment of a bachelor’s degree. The basis for Kathleen’s request for attorney fees was the financial disparity of the parties in having to defend against Richard’s motion. Both motions could have been enforced separately, since Kathleen could have been awarded fees under KRS 403.220 even if Richard’s motion was granted. As a result, Kathleen’s motion for attorney fees was not part of Richard’s motion for modification, but was a separate claim or right created by statute.

For the above-mentioned reasons, Richard’s and Kathleen’s motions constituted separate claims for purposes of CR 54.02. Accordingly, the order denying Richard’s motion to modify maintenance did not terminate the family court’s jurisdiction as to Kathleen’s motion for fees and costs. Therefore, we hereby reverse the opinion of the Court of Appeals and remand this case to that court for consideration of the merits of Richard’s appeal of the family court’s order awarding Kathleen attorney fees.

In this case, the judgment did not recite that there was “no just reason for delay.” The question before us then is whether Kathleen’s motion for fees and costs constituted a separate claim. If it did, then the family court retained jurisdiction, making Richard’s motion interlocutory until the fees issue was ruled upon. CR 54.02(1). We find that Kathleen’s motion was a separate claim.

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