Oct. 2011 SCOKY Month Case Summary Report from AOC

The case summary report is created by the staff of the Supreme Court of Kentucky for the convenience of the bench and bar.  Every effort is made to present accurate information, including status of the case, as of the date of posting.  The most recent status for cases can be found on the Supreme Court, Court of Appeals, or other legal research websites.  Before citing any case, the user should always read the entire opinion and ensure that the case is final.  CR 76.28.



October 2011


A. St. Luke Hospital, Inc.; E. Krebs, R.N.; T. Theisen; John Fey; John Howard   Harris; and Ernest Pretot v. Shannon Straub
2009-SC-000027-DG    October 27, 2011

Opinion of the Court by Chief Justice Minton.  All sitting; all concur.  Supreme  reversed the decision of the Court of Appeals and reinstated the trial court’s judgment.     Supreme Court held that an action for money damages under KRS 446.070 is not   available for alleged constitutional violations.  Issues/holdings include:  1) in   relation to KRS 446.070, the word “statute” will not be interpreted to mean   constitution; 2) because adequate remedies existed at law, the Court declined to   recognize a new tort cause of action under Bivens v. Six Unknown Named Agents,   403 U.S. 388 (1971); 3) the trial court did not err when it refused to answer jury   questions during deliberations; and 4) the trial court did not commit reversible   error when it allowed evidence at trial of Straub’s use of profanity or drugs.


A. Shawnee Telecom Resources Inc., successor by Merger to Shawnee   Technology, Inc. v. Kathy Brown 
2009-SC-000574-DG   October 27, 2011

Opinion of the Court by Justice Abramson.  All sitting; all concur. In a dissenter’s   rights action under the Business Corporations Act, KRS Chapter 271B, both    parties appealed from the trial court’s appraisal of the dissenting shareholder’s    shares.  Ruling in favor of the dissenter, the Court of Appeals held that her shares    should not have been discounted for their lack of marketability.  Affirming in    part, the Supreme Court agreed that in a Chapter 271B appraisal proceeding, the    dissenting shareholder is entitled to “fair value” which is his or her proportionate    share of the company’s value as a going concern as opposed to fair market value,    the value applicable in a hypothetical sale of the shares to a willing buyer.  Value    can be determined under any method generally recognized in the business     appraisal field for which there is supporting evidence and thus the Court of    Appeals erred in categorically rejecting valuations under the net asset method.     Fair value can include appropriate entity level discounts and premiums, where    there is supporting expert testimony but shareholder level discounts for lack of    control or lack of marketability are generally inappropriate.


A. Christopher Chavies v. Commonwealth of Kentucky
2010-SC-000479-MR         October 27, 2011

Opinion of the Court by Chief Justice Minton.  All sitting; all concur.  Chavies   was convicted of manufacturing methamphetamine; receipt of stolen property   worth $500 or more, but less than $10,000; and being a second-degree persistent   felony offender.  The Supreme Court affirmed his conviction, finding that (1) the   trial court properly denied Chavies’s motions to suppress the evidence seized in   the search of his vehicle; (2) the trial court did not err by denying Chavies’s   motion for a directed verdict for the offense of manufacturing methamphetamine;    (3) Chavies affirmatively waived the sufficiency of the evidence issue for the    offense of receipt of stolen property; and (4) the trial court erred in allowing the    introduction of dismissed and amended charges in the penalty phase of Chavies’    trial, but the unpreserved error was not a sentencing issue and did not rise to the    level of palpable error.

B. Sean Christopher Noakes v. Commonwealth of Kentucky
2010-SC-000568-MR                  October 27, 2011

Opinion of the Court by Justice Scott.  All sitting; all concur.  Appellant was   convicted of murder and attempted murder following a jury trial at which the only    contested issue was whether he was criminally responsible for his actions.  On    appeal, Appellant argued that the trial court erred by:  (1) denying his motion for a    limited directed verdict on the question of guilt for the murder charge; (2)   instructing the jury that the definition of insanity did not include an abnormality   manifested only by repeated criminal conduct; (3) instructing the jury that   Appellant was required to prove the existence of extreme emotional disturbance   (EED) beyond a reasonable doubt; and (4) allowing the Commonwealth to engage   in a pattern of prosecutorial misconduct.

The Supreme Court determined that no error had been committed and upheld   Appellant’s conviction.  Specifically, the Court held that Appellant was not   entitled to a directed verdict because there was sufficient evidence to support his   conviction for a crime related to the homicide.  With regard to the insanity   instructions, the Court found that there was no error because the instruction   properly recited the standard set forth in KRS 504.020.  The Court also held that   Appellant could not seek to reverse his conviction based on the allegedly   erroneous EED instruction because the instruction given was the one he   requested.  Finally, the Court held that alleged evidentiary errors do not constitute   prosecutorial misconduct.

C. Jeremy D. Lawton v. Commonwealth of Kentucky
2010-SC-000206-DG          October 27, 2011

Opinion of the Court by Justice Noble. All sitting; all concur.  Lawton was   convicted by a Fayette County jury of escape in the second degree and of being a   persistent felony offender in the second degree. The charges arose when Lawton,   who was serving a misdemeanor sentence in the Home Incarceration Program   (HIP), removed an electronic monitoring device from his ankle and left the home   where he was supposed to remain under the terms of his HIP agreement.

The Court held that Lawton could be properly convicted of second-degree escape   under the portion of the statute that reads: “A person is guilty of escape in the   second degree when he escapes from a detention facility ….” KRS 520.030(1).   For the purposes of the Home Incarceration Program, a home is a “detention   facility,” and escape from such a home can constitute second-degree escape.

However, the Court reversed Lawton’s convictions because the jury instructions   given did not properly list all the required elements for second-degree escape. The   Court provided sample instructions to be used in future prosecutions for escape   from home incarceration.


A. Peter Bard v. Commonwealth of Kentucky
2010-SC-000283-DG                  October 27, 2011

Opinion of the Court by Justice Scott.  Cunningham, Noble, Schroder, and   Venters, JJ., concur. Minton, C.J., dissents by separate opinion. Abramson, J., not   sitting. In 2002, Appellant was sentenced to twenty years in prison for a murder   that took place in 1993.  The trial court’s judgment provided that Appellant was   “entitled to credit for time spent in custody prior to sentencing, said time to be   calculated by the Division of Probation and Parole.”  At the time of sentencing,   Probation and Parole presented the trial court with its calculation of Appellant’s   presentencing custody credit, 3,086 days.  Six years later, the Department of   Corrections determined that Appellant had served his sentence, based on the   award of 3,086 days of custody credit, and released him from prison.  Several   days later, Corrections asserted that Appellant’s presentencing custody credit had   been miscalculated.  As a result, it modified Appellant’s credit to 1,449 days and   reincarcerated him.

On appeal, the Supreme Court held that the Department of Corrections lacked the   authority to modify Appellant’s presentencing custody credit.  The Court   reasoned that, under the plain language of the version of KRS 532.120(3) that was   in effect at the time of Appellant’s sentencing and reincarceration, the duty to   award presentencing custody credit was vested exclusively in the trial court.  The   Court found that the trial court had incorporated by reference Probation and   Parole’s initial calculation of 3,086 days and that Corrections could not   subsequently reduce Appellant’s credit.  The Court also noted that any error in the   trial court’s judgment was judicial, not clerical, and could not be corrected under   RCr 10.10 or CR 60.02.


A. Commonwealth of Kentucky, Cabinet for Health and Family Services, and   Larry Barnes v. Renee Ivy (now Knighten) 
2010-SC-000527-DGE   October 27, 2011

Opinion of the Court by Justice Abramson.  Minton, D.J.; Noble, Schroder, and    Venters, JJ., concur. Cunningham, J., concurs in part and dissents in part by    separate opinion in which Scott, J. joins. In a contempt proceeding to enforce a    child-support order, notwithstanding the fact that the child-support obligor’s sole    source of income was a monthly benefit under the federal Supplementary Security   Income program (SSI), the family court held her in contempt for having failed to    make payments.  Holding that an SSI recipient has no ability to pay child support,   the Court of Appeals reversed and remanded for an order abrogating the support    obligation.  Reversing in part, the Supreme Court held that the receipt of SSI    benefits does not preclude a child-support obligation, but that the trial court    retains broad discretion to deviate from the statutory amount of that obligation so    as to avoid unduly burdening the recipient.

B. Cory Keifer v. Jaylynne Keifer  
2010-SC-000694-DGE                October 27, 2011

Opinion of the Court by Justice Venters. All sitting. All concur. Issue presented:   Whether the trial court’s failure to include specific findings of fact in post-decree   order modifying the terms of child visitation indicated its failure to reflect   consideration of the factors set forth in KRS 403.270(2) relating to custody   determinations, and thus, required reversal.  Held: CR 52.01 and the applicable   sections of KRS Chapter 403 require written findings of fact in all orders   affecting child custody.  However, where trial judge had made adequate findings   of fact at the conclusion of the hearing on the video record, reversal of judgment   was limited to the entry of a new judgment that properly reflected in writing the   trial court’s findings.


A. University Medical Center, Inc., D/B/A University of Louisville Hospital v.   Michael G. Beglin, Individually; and Michael G. Beglin as Executor of the   Estate of Jennifer W. Beglin; Michael G. Beglin as parent and next friend of   the minor William Patrick Beglin; Michael G. Beglin as parent and next of   Friend of the minor Kelly Ann Beglin; William Patrick Beglin, Individually;   and Kelly Ann Beglin, Individually  
2009-SC-000289-DG    October 27, 2011   2009-SC-000839-DG    October 27, 2011

Opinion of the Court by Justice Venters.  All sitting; Minton, C.J., Abramson,   Noble, and Schroder, JJ., concur. Scott, J., concurs in part and dissents in part by   separate opinion, in which Cunningham, J., joins. Issues presented:  (1) whether   trial court’s giving of a missing evidence instruction was proper; (2) whether it   was permissible here to hold an employer liable for punitive damages based upon   the gross negligence of an employee.  Held:  (1) missing evidence instruction   should be given when it may be reasonably believed that material evidence within   the exclusive possession and control of a party, or its agents or employees, was   lost without explanation or is otherwise unaccountably missing. The trier of fact   may infer that the evidence was intentionally and in bad faith destroyed or   concealed by the party possessing it and that the evidence, if available, would be   adverse to that party or favorable to his opponent.  In this case, the evidence   supported an inference that the Hospital intentionally and in bad faith destroyed   the missing document, and so the missing evidence instruction was properly   given; and (2) pursuant to KRS 411.184(3) that “In no case shall punitive   damages be assessed against a principal or employer for the act of an agent or   employee unless such principal or employer authorized or ratified or should have   anticipated the conduct in question,” under facts at bar, there was insufficient   evidence that had Hospital authorized, ratified or could have anticipated the   nurse’s conduct which led to the injury of the patient, and thus the trial court erred   by giving a punitive damages instruction against the Hospital.


A. Interlock Industries, Inc., et al. v. Charles Rawlings, et al.; Rosenman’s, Inc.   v. Charles Rawlings, et al.; & Kentucky Flatbed Company, LLC v. Charles   Rawlings, et al. 
2010-SC-000264-DG    October 27, 2011   2010-SC-000352-DG &   October 27, 2011   2010-SC-000368-DG    October 27, 2011

Opinion of the Court by Justice Schroder.  Minton, C.J.; Abramson, Cunningham,   and Noble, JJ., concur.  Scott, J., concurs in part and dissents in part by separate   opinion in which Venters, J., joins.  The plaintiff, a truck driver, was injured while   a forklift unloaded aluminum bundles from his truck.  One of the bundles fell on   the plaintiff as he was rolling up the straps that had been used to secure his load.   The plaintiff filed suit 13 months after the accident.

The Supreme Court held that Kentucky’s general one-year statute of limitations   for personal injury applied, and that the two-year statute of limitation found in the   Motor Vehicle Reparations Act (MVRA) did not apply.  The MVRA extends the   statute of limitations to two years for actions with respect to accidents occurring   in this Commonwealth and arising from the ownership, maintenance or use of a   motor vehicle.  Pursuant to case law and the plain language of KRS 304.39-020(6)(b),   engaging in activity integral to the unloading of a truck does not constitute “use of   a motor vehicle.”  The Court went on to hold that the plaintiff’s actions in rolling   straps constituted “unloading” within the meaning of the MVRA.  Therefore, the   MVRA’s two-year statute of limitations did not apply.  The Court reversed the   Court of Appeals, and reinstated the trial court’s summary judgment in favor of the   defendants.


A. Kentucky Bar Association v. James B. Gray   2010-SC-000381-KB    October 27, 2011

Opinion and Order of the Court.  All sitting; all concur.  Supreme Court revoked   attorney’s probation and reinstated the remainder of his five-year suspension for   violating the conditions of his probation.

B. Kentucky Bar Association v. Margaret M. Jackson-Rigg
2011-SC-000212-KB    October 27, 2011
2011-SC-000329-KB    October 27, 2011

Opinion and Order of the Court.  All sitting; all concur.  The Supreme Court   permanently disbarred an attorney from the practice of law based on her pattern of   misconduct, multiple offenses, bad faith obstruction of the disciplinary process,   illegal conduct, and her substantial experience in the practice of law. The attorney   also had received three private reprimands and had been suspended three times.

C. Kentucky Bar Association v. Ronald E. Thornsberry   2011-SC-000352-KB    October 27, 2011

Opinion and Order of the Court.  All sitting; all concur.  The Supreme Court   suspended an attorney from the practice of law for thirty days.  The attorney   participated in a case in Ohio, and appeared before a judge, without filing a pro   hoc vice motion.  He represented to the court and the KBA that he had filed such a   motion when no motion was ever filed.  The attorney also failed to keep his client   informed about the status of her case and failed to return files to her upon the   termination of representation.

D. Kentucky Bar Association v. Joseph F. Bamberger   2011-SC-000378-KB   October 27, 2011

Opinion and Order of the Court.  All concur.  Schroder, J., not sitting. The     Supreme Court permanently disbarred an attorney from the practice of law due to    the highly egregious nature of his ethical violations stemming from his     participation in the “Fen-Phen” case.

E. Maureen Ann Sullivan v. Kentucky Bar Association   2011-SC-000533-KB   October 27, 2011

Opinion and Order of the Court. All sitting; all concur. The Court adopted a   negotiated agreement between Sullivan and the KBA that resolved four pending   disciplinary proceedings against Sullivan. Sullivan was suspended from the   practice of law for 61 days, with 31 days of that suspension probated for one year.   Sullivan was required to complete the KBA’s Ethics and Professionalism   Enhancement Program and to refund certain client fees.

F. Christopher Vavro v. Kentucky Bar Association   2011-SC-000538-KB   October 27, 2011

Opinion and Order of the Court.  All sitting; all concur.  The Supreme Court   approved a negotiated sanction suspending an attorney from the practice of law   for sixty-one days for continuing to practice law after he had been suspended for   failing to comply with continuing legal education requirements.  The attorney,   while under suspension, sent a letter to an insurance company negotiating a   settlement on behalf of a client.

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