March 18, 2010 Supreme Court Minutes

March
18, 2010 Supreme Court Minutes
(CLICK HERE FOR ENTIRE MINUTES)

  • Decisions:25-71
  • Total:  47
  • Published:24
  • Disciplinary Cases (published): 11  ( 1 not publishehttp://apps.kycourts.net/Supreme/Minutes/Mnt01212010.pdfd)(7 misc. orders re:attorneys)
  • Rehearing motions:  2 of 9  motions for rehearing Granted
  • Discretionary Review Motions:  8 of 56 granted
    • Motions granted: 8 Denied: 48
  • Running Tally for 2010http://apps.kycourts.net/Supreme/Minute
    • PUB/NPO Ratio: 
      • Jan 2010 14 of 24 published
      • Feb 2010 none
      • Mar 2010 24 of 47 published
      • Running tally 38 of 71 published
    • Motions for rehearing –
      • Jan 2010 2 of 9 grants
      • Feb 2010 none
      • Mar 2010 0 of 6 granted
      • Running tall 2 of 15 grants
    • MDR (distcretionary review) 
      • Jan  2010 11 of 55 granted
      • Feb 2010  None
      • Mar 2010 8 of 56 granted
      • Running tally 19 of 111 grants
    • Reversals or otherwise not affirmed in entirety (including vacated): 
      • Jan 2010
      • Published: 12 of 14
      • NonPublished: 3 of 10
      • Combined: 15 of 24 decisions were reversed in whole or in part
      • Feb 2010 None
      • Mar 2010
        • Published: 16 of 24
        • Nonpublished 10 of 23
        • Combined:  26 of 47
  • COA decisions ordered not published: 4
    • Ramsey v. Lambert Fayette County
    • Welsh v. Phoenix Transp. Scott County
    • Cab. of Health and Family v. Gambrell's Food Service, Franklin Cy.
    • Buford v. Com., McCracken Cy.
    • Holly Creek Production v. Dowie Banks, Wolfe Cy.
  • Click here
    for full text of minutes for this month
  • Click here
    for table full for text of minutes of other months

Link to full text published decisions with Questions Presented as
noted on the SCOKY minutes are as follows (BELOW THE FOLD):::::

25 – MINORS, REAL PARTY IN INTEREST, ATTORNEY REPRESENTING MINOR'S DUTIES
IRA E. BRANHAM; ET AL. V. ELIZABETH STEWART
(GUARDIAN OF THE ESTATE OF THE PERSON OF GARY RYAN STEWART, AN INCOMPETENT PERSON)
OPINION OF THE COURT BY CHIEF JUSTICE MINTON – AFFIRMING
SCOTT, J., DISSENTS BY SEPARATE OPINION IN WHICH CUNNINGHAM, J., JOINS.

Questions Presented:
Professional Negligence. Attorney and Client. Infants. Guardian and Ward. Issues include whether malpractice suit may be brought by former infant and ward against attorney who represented former next friend and guardian.

The trial court dismissed this legal malpractice and breach of fiduciary
duty case by granting summary judgment in favor of the defendant-attorney who argued that he owed no legal duty to a minor on whose behalf he had filed and settled a personal injury case. The defendant-attorney asserted that no attorney-client relationship existed between the minor and him because the minor's next friend and statutory guardian retained him to pursue the minor's tort claim.  On discretionary review,we hold that an attorney pursuing a claim on behalf of a minor does have an attorney-client relationship with the minor.
And that relationship means that the attorney owes professional duties to the minor,who is the real party in interest. So it is possible for them in or to state a claim for legal malpractice or breach of fiduciary duty against the attorney who has been retained by a person acting as the minor's next friend or statutory guardian. Thus, we affirm the Court of Appeals opinion reversing the summary judgment and remanding for further proceedings.

26 CRIMINAL EVIDENCE, MODUS OPERANDI AND KRE 404
DANNY MONTGOMERY V. COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE ABRAMSON – AFFIRMING
NOBLE, J., CONCURS IN RESULT ONLY.

Questions Presented:
First Degree Sexual Abuse and First Degree Persistent Felony Offender-20 years. Evidence of defendant’s similar abuse of three other young girls was properly admissible as to the sexual abuse charge under the modus operandi exception to KRE 404(b). Although the trial court may have abused its discretion by joining the rape and abuse offenses where joinder entailed the introduction of collateral acts of sexual abuse at defendant’s rape trial, the misjoinder, if any, was not prejudicial. Trial court properly excluded evidence of minor victim’s collateral sexual conduct and evidence that abuse allegations had been made against minor victim.

27 JUVENILES, DNA TESTING
PETITIONER F; ET AL. V. BRIDGET SKAGGS BROWN, COMMISSIONER, DEPARTMENT
OF JUVENILE JUSTICE, IN HER OFFICIAL CAPACITY.
OPINION OF THE COURT BY JUSTICE SCHRODER – AFFIRMING
ALL SITTING. ALL CONCUR.

Questions Presented:
DNA sampling statutes are applicable to juvenile public offenders.

28 CRIMINAL PROCEDURE
COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES V. HONORABLE GREGORY M. BARTLETT, JUDGE, KENTON CIRCUIT COURT AND LARRY COLE; ET AL.
OPINION OF THE COURT BY JUSTICE NOBLE – AFFIRMING
ALL SITTING. ALL CONCUR.

Questions Presented:
In a criminal case, the defendant’s unquestionable constitutional right to exculpatory evidence in the government’s possession gives a trial court the power to order an in camera review of KASPER reports.

29 CRIMINAL PROCEDURE
BRANDON LEON WATKINS V. COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE CUNNINGHAM – AFFIRMING
ALL SITTING. ALL CONCUR.

Questions Presented:
Criminal Law. Standing . Search and Seizure. Abandonment. Issues include whether a suspect's immediate flight from a vehicle after being pulled over constitutes abandonment and thereby deprives the suspect of standing to contest the subsequent search of the vehicle.

30 CRIMINAL LAW
MARK PADGETT V. COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE NOBLE – AFFIRMING ALL SITTING. ALL CONCUR.

Questions Presented:
Affirmance of convictions of Criminal Attempt to commit First Degree manslaughter; Second Degree Assault and Violation of an Emergency Protective Order.

31 CRIMINAL LAW
ALAN HUMMEL V. COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE NOBLE – AFFIRMING SCOTT, J., CONCURS IN RESULT ONLY.

Questions Presented:
First Degree Rape; Third Degree Rape and Second Degree Persistent Felony Offender. A request for self-representation may be denied upon a determination that the defendant is unable or unwilling to abide by courtroom protocol during the defense, or that the request is made purely as a tactic to disrupt or delay the proceedings. A trial court’s determination will be reviewed for an abuse of discretion.

32 "CASTLE DOCTRINE"
ROBERT CARL FOLEY V. COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE VENTERS – AFFIRMING
ALL SITTING. ALL CONCUR.

Questions Presented:
Affirmance of denial of Petition for Declaratory Judgment. KRS 503.055-the “Castle Doctrine” statute. Self-defense statutes in effect at the time of Foley’s trial are constitutional.

33 EMINENT DOMAIN
SPRINT COMMUNICATIONS COMPANY, L.P. V. ALBERT E. LEGGETT, III (AS TRUSTEE OF THE ALBERT E. LEGGETT FAMILY TRUST)
OPINION OF THE COURT BY JUSTICE VENTERS – AFFIRMING IN PART AND REVERSING IN PART MINTON, C.J. AND ABRAMSON, J., NOT SITTING.

Questions Presented:
Abuse of Process. Eminent Domain. Discovery. Issues include whether telephone company's attempted use of eminent domain statute to acquire building constitutes abuse of process.

34 CRIMINAL LAW
KELLY MARQUETTE STEWART V. COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE CUNNINGHAM – AFFIRMING IN PART AND VACATING IN PART
SCOTT, J., CONCURS IN PART AND DISSENTS IN PART BY SEPARATE OPINION.

Questions Presented:
First Degree Possession of a Controlled Substance; First Degree Promoting Contraband; Possession of Drug Paraphernalia (second or subsequent offense): Possession of Marijuana; Giving a Police officer a False Name; Representing as one’s own another’s license; Improper signal; Failure to illuminate a license plate; and First Degree Persistent Felony Offender. Erroneous jury instruction during the penalty phase, which omitted an element of the prior misdemeanor conviction, was palpable error.

35 CRIMINAL LAW
DAVID THOMAS COHRON V. COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY CHIEF JUSTICE MINTON – AFFIRMING, IN PART, AND REVERSING AND REMANDING, IN PART
SCOTT, J., CONCURS, IN PART, AND DISSENTS, IN PART, BY SEPARATE OPINION.

Questions Presented:
First Degree Fleeing and Evading; First Degree Wanton Endangerment; Receiving Stolen Property over $300; two counts of Second Degree Escape; Fourth Degree Assault; Reckless Driving; and First Degree Persistent Felony Offender-40 years. Reversal of one of the two Second Degree Escape convictions.

36 CRIMINAL PROCEDURE
CASSANDRA SMITH V. COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE VENTERS – AFFIRMING IN PART AND REVERSING AND REMANDING IN PAR
T CUNNINGHAM, J., NOT SITTING.

Questions Presented:
Criminal Law. Search and Seizure. Miranda Warnings. Custody Determination. Issues include the admissibility of incriminating statements where the defendant was handcuffed but not Mirandized, and specifically whether the holding in Taylor v. Commonwealth, 182 S.W.3d 521 (Ky. 2006) that handcuffing a suspect does not necessarily constitute "custody" for Miranda purposes should be re-evaluated. Also at issue is the breadth of the safety exception which prevents questions from being deemed "interrogation."

37 CRIMINAL ALW
ESSAMOND WILBURN V. COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE VENTERS –
AFFIRMING IN PART AND REVERSING AND REMANDING IN PART SCHRODER, J., CONCURS IN RESULT ONLY BY SEPARATE OPINION, IN WHICH SCOTT, J., JOINS. NOBLE, J., DISSENTS BY SEPARATE OPINION IN WHICH MINTON, C.J., JOINS.

Questions Presented:
First Degree Burglary; First Degree Robbery and Second Degree Persistent Felony Offender. Defendant was entitled to a directed verdict on the burglary charge. No Batson violation.

38 CRIMINAL LAW
FREDERICK RENNEL HANNAH V. COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE SCOTT –
REVERSING
MINTON, C.J., AND ABRAMSON, J., CONCUR IN RESULT ONLY. SCOTT, J., CONCURS BY SEPARATE OPINION.

Questions Presented:
Murder-Life Imprisonment. No “duty to retreat”. Trial court erred in not allowing the jury to be questioned during voir dire about any prejudice they might have regarding the “duty to retreat” and in prohibiting the defendant from arguing in closing argument that he had “no duty to retreat.”

39 CRIMINAL PROBATION
COMMONWEALTH OF KENTUCKY V. LAWRENCE EVERETT ALLEMAN
OPINION OF THE COURT BY JUSTICE VENTERS –
REVERSING
SCHRODER, J., DISSENTS BY SEPARATE OPINION IN WHICH MINTON, C.J., JOINS.

Questions Presented:
Trial court’s findings of fact and reasons for probation revocation entered orally on the record from the bench are sufficient to satisfy due process.

40 SOL, CLERKS OFFICE CLOSED EARLY FOR DERBY
THOMAS WEIRD V. ERIC EMBERTON
OPINION OF THE COURT–
REVERSING
ABRAMSON, J., NOT SITTING.

Questions Presented:
Appellate Procedure. Filing of Appeal. At issue is whether an otherwise one-day late notice of appeal was rendered timely by the early closure of the Jefferson County Circuit Clerk's Office for the Derby parade on the due date.

A judgment was entered against Appellant, Thomas Weird, by the Jefferson Circuit Court on April 3, 2007, making May 3, 2007, the deadline for filing a notice of appeal from the judgment. On the afternoon of May3, 2007, Appellant attempted to file a notice of appeal in the Jefferson County Circuit Clerk's Office. However, the office had closed early that afternoon in observance of the Kentucky Derby Parade . Appellant returned the next day and filed the notice of appeal.

In this appeal, we must answer whether the early closing of a public office in observance of a local event operates to extend the time for filing a legal document where the filing deadline otherwise falls on the day of the early closure.  Because KRS 446.030 grants an extension in just such circumstances, we answer in the affirmative. Accordingly, the Court of
Appeals erred in dismissing the instant appeal as untimely.

41 CONTRACTOR'S SUBSTANDARD WORK
CINCINNATI INSURANCE COMPANY V. MOTORISTS MUTUAL INSURANCE COMPANY
OPINION OF THE COURT BY CHIEF JUSTICE MINTON – REVERSING
ALL SITTING. ALL CONCUR.

Questions Presented:
Insurance. Property damage. Contractors. At issue is whether contractual recovery may be premised upon a builder's substandard work.

This case requires us to decide whether a claim of defective construction
against a homebuilder is, standing alone, a claim for property damage caused by an "occurrence" under a commercial general liability (CGL) insurance policy.  Like the majority of courts that have considered the question, we hold that the answer is no.

42
FLUKE CORPORATION V. GARY LEMASTER, ET AL.
OPINION OF THE COURT BY CHIEF JUSTICE MINTON – REVERSING ALL SITTING. ALL CONCUR.

Questions Presented:
Statute of Limitations. Equitable Tolling. Issues include whether failure to report product safety concerns to federal regulatory agency estops defendant from invoking statute of limitations defense to a claim for injuries caused by the product.

43
CENTRAL KENTUCKY NEWS-JOURNAL V. HON. DOUGHLAS M. GEORGE
(JUDGE, TAYLOR CIRCUIT COURT), ET AL.
OPINION OF THE COURT BY JUSTICE SCOTT– REVERSING
CUNNINGHAM, J., CONCURS BY SEPARATE OPINION IN WHICH SCOTT, J., JOINS.

Questions Presented:
Settlement agreements involving the expenditure of public funds were subject to disclosure under the Open Records Act. Agreements were not exempt from disclosure under the Act’s personal privacy exception, KRS 61.878(1)a.

44 INTERNET GAMBLING DOMAIN CASE
COMMONWEALTH OF KENTUCKY, EX REL. J. MICHAEL BROWN, SECRETARY, JUSTICE AND PUBLIC SAFETY CABINET V. INTERACTIVE MEDIA ENTERTAINMENT AND GAMING ASSOCIATION, INC.; ET AL.
OPINION OF THE COURT BY JUSTICE NOBLE –
REVERSING
SCOTT, J., CONCURS IN RESULT ONLY. CUNNINGHAM, J., NOT SITTING.

Questions Presented:
Internet domain names and associations of anonymous domain registrants do not have standing to defend against forfeiture actions.

45 ADVERSE POSSESSION
DARRELL H. MOORE, ET AL. V, ROY E. STILLS, ET AL.
OPINION OF THE COURT BY JUSTICE ABRAMSON – REVERSING SCOTT, J., DISSENTS BY SEPARATE OPINION IN WHICH VENTERS, J., JOINS.

Questions Presented:
Petitioner’s recreational use was not enough to establish adverse possession of another’s land under common law or KRS 411.190(8). Petitioner failed to prove the “well-defined boundary” element of their claim.

46 CRIMINAL LAW
FRED LEE COLVARD V. COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE VENTERS – REVERSING AND REMANDING
MINTON, C.J., CONCURS IN PART AND DISSENTS IN PART AND WOULD NOT ALLOW INTRODUCTION OF 1994 ATTEMPTED RAPE CONVICTION BECAUSE THE FACTS OF THE CURRENT CASE ARE NOT SUFFICIENTLY SIMILAR TO SATISFY KRE 404(B). HE CONCURS IN ALL OTHER RESPECTS. SCOTT, J., CONCURS IN PART AND DISSENTS IN PART BY SEPARATE OPINION IN WHICH ABRAMSON, J., JOINS.

Questions Presented:
First Degree Sodomy; two counts of First Degree Rape; First Degree Burglary and Second Degree Persistent Felony Offender- Life Imprisonment. Testimony from medical personnel was improperly admitted through the hearsay exception under KRE 803(4). Court’s previous interpretation of the hearsay exception for “statements for purposes of medical treatment or diagnosis” was too broad; testimony herein was inappropriate.

47 CRIMINAL LAW
TERRY GLENN HOBSON V. COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE VENTERS – REVERSING AND REMANDING ALL SITTING. ALL CONCUR.

Questions Presented:
Criminal Law. Robbery. Issues include whether escape stage occurs "in the course of committing theft" under KRS 515 .020.

48 CRIMINAL LA
W
ROBERT EUGENE DENNIS V. COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE ABRAMSON – VACATING AND REMANDING
ALL SITTING. ALL CONCUR.

Questions Presented:
Three counts of First Degree Sodomy and First Degree Sexual Abuse-65 years. Trial court erred in failing to obtain and review potentially material CHFS records.

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