SCOKY: June 17, 2010 Supreme Court Minutes

June 17,
2010 Supreme Court Minutes
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HERE FOR ENTIRE MINUTES)

  • Decisions:  116 – 150
  • Total:  35
  • Published: 21
  • Disciplinary Cases (published): 1 Pub.  4 Not Pub.
  • Rehearing motions:  4 denied none granted
  • Discretionary Review Motions:  4 of 25 granted

PUBLISHED DECISIONS. 

116.     Perfection of vehicle lien.
IN RE: MICHAEL W. JOHNSON DEBTOR, ET AL. V. BRANCH BANKING AND TRUST
2009-SC-000319-CL
TO BE PUBLISHED
U.S. COURTOF APPEALS  SIXTH CIRCUIT
OPINION OF THE COURT BY
JUSTICE VENTERS – CERTIFYING THE LAW
NOBLE, J., DISSENTS BY SEPARATE OPINION IN WHICH CUNNINGHAM, J., JOINS.
Questions Presented:
Under Kentucky law, final perfection of a vehicle lien does not occur until physical notation is made on the title pursuant to KRS 186A.190; perfection is not accomplished by merely submitting the required paperwork to the county clerk. KRS 186A.195(5) addresses initiation of the perfection process and is designed primarily as a timing mechanism for establishing priority among creditors; compliance alone with the acts set forth therein does not accomplish perfection.

117.  EXTRAORDINARY WRITS.  CR 60.02 REOPENING.
TOYOTA MOTOR MANUFACTURING, KENTUCKY, INC. V. HONORABLE ROBERT G. JOHNSON JUDGE, SCOTT CIRCUIT COURT) ET AL.
2007-SC-000647-MR SCOTT
TO BE PUBLISHED
OPINION OF THE COURT BY CHIEF JUSTICE MINTON – AFFIRMING
ABRAMSON, J., CONCURS BY SEPARATE OPINION IN WHICH MINTON, C.J., JOINS.
NOBLE, J., DISSENTS BY SEPARATE OPINION IN WHICH SCOTT, J., JOINS.
Questions Presented:
Petition for rehearing granted and new opinion issued affirming denial of requested writ.

Opinion of the Court by Chief Justice MINTON.
The Petition for Rehearing, filed by Appellee Jeff Sergent (Real Party in Interest), having been granted by the Court August 27, 2009; the additional briefing, ordered on the Court's own motion October 1, 2009, having been completed; the case having been submitted to the Court for further review; and being otherwise fully and sufficiently advised;

The Court ORDERS that the Opinion of the Court by Justice Noble, rendered March 19, 2009, is WITHDRAWN; and the attached Opinion of the Court by Chief Justice Minton is RE-ISSUED in lieu thereof. The re-issued opinion affirms the judgment of the Court of Appeals denying the requested writ.

All sitting. All concur.

118. EVIDENCE.  AUTHENTICATION OF DOCUMENTS PRODUCED IN DISCOVERY.
Ima Ruth THRASHER, Individually, And as Executrix of The Estates of Howard Thrasher; and Barry Douglas Thrasher, Appellants. v. Tilmond DURHAM, Terrill Durham, and Walter Powell, III, d/b/a DP Enterprises, Appellees.
No. 2008-SC-000809-DG. June 17, 2010.
Questions Presented:
Evidence. Admissibility and Authentication of Documents. Issues include whether documents produced during discovery are deemed authenticated by virtue of their production or whether additional authentication is required
where documents were part of the file compiled by the defendant's former attorney in a prior lawsuit.

OPINION OF THE COURT, ABRAMSON.
Ima Ruth Thrasher, both individually and as the executrix of the estate of Howard Thrasher, and Barry Douglas Thrasher appeal from an Opinion of the Court of Appeals affirming the dismissal of the Thrashers' negligence action against Tilmond Durham, Terrill Durham, and Walter Powell, III, d/b/a DP Enterprises. DP Enterprises operates oil wells in Clinton County. The Thrashers, who own and live on property near Bug, Kentucky in the vicinity of some of the wells, alleged that DP Enterprises negligently permitted hydrogen sulfide gas to escape from one or more of the neighboring wells and that the gas damaged their property and caused them personal injury. A 2007 trial in the Clinton Circuit Court resulted in a jury verdict adverse to the Thrashers and a subsequent judgment dismissing their claims. The Thrashers contend that the trial court erred when it would not allow them to introduce into evidence three documents, which they sought to use to impeach a portion of the testimony of Tilmond Durham. Agreeing with the Court of Appeals that the trial court's ruling was not an abuse of discretion, we affirm.

119.  CRIMINAL LAW. CONTROLLED SUBSTANCE. ENTRAPMENT
ORLANDO SEXTON V. COM.
2008-SC-000899-DG GRAVES
TO BE PUBLISHED
OPINION OF THE COURT BY JUSTICE ABRAMSON – AFFIRMING
ALL SITTING. ALL CONCUR
Questions Presented:
Criminal Law. Trafficking in a Controlled Substance within 1,000 Yards of a School. Culpable Mental State. Entrapment. Issues include whether conviction under KRS 218A.1411 requires proof that defendant knew drug transaction was occurring within 1,000 yards of a school; and whether conviction reflected palpable error and manifest injustice because police informants designated location of transaction, although issue of entrapment was not raised at trial.

120.  CRIMINAL LAW:  COMPLICITY TO COMMIT MURDER
RAY’MON JA’KEE ROGERS V. COMMONWEALTH OF KENTUCKY
2008-SC-000915-MR HARDIN
TO BE PUBLISHED
OPINION OF THE COURT BY VENTERS

Questions Presented:
Complicity to Commit Murder, Complicity to Criminal Attempt to Commit Murder, and two counts of Complicity to Commit First-Degree Robbery. Trial court did not err in terminating statements by defendant’s counsel regarding the difference between the burden of proof at a civil trial versus a criminal trial where the matter was raised to educate the jury rather than to elicit disqualifying information.

121. CRIMINAL LAW:  LIABILITY.
ROBERT B. TAYLOR, SR. V. COMMONWEALTH OF KENTUCKY
2009-SC-000180-DGTO BE PUBLISHED
OPINION OF THE COURT BY JUSTICE SCHRODER – AFFIRMING
ALL SITTING. ALL CONCUR
Questions Presented:
Criminal Law. Criminal liability. Issues include whether an individual who knowingly takes contraband into a detention facility has committed a voluntary act despite entering the facility involuntarily.

122. Criminal Law. Prosecutorial Discretion.
SCOTT CROUCH V. COMMONWEALTH OF KENTUCKY
2009-SC-000129-DG JESSAMINE
TO BE PUBLISHED
OPINION OF THE COURT BY CHIEF JUSTICE MINTON –
AFFIRMING
ALL SITTING. ALL CONCUR.

Questions Presented:
Criminal Law. Prosecutorial Discretion. Rule of Lenity. Equal
Protection. Issues include whether providing a false name to a police
officer may be prosecuted as identity theft, a Class D Felony, even
though same actions arguably constitute the more specific offense of
giving a false name to a peace officer, which is only a Class B
misdemeanor.

123. CRIMINAL LAW:  TRAFFICKING.
ALVIN KNUCKLES V. COMMONWEALTH OF KENTUCKY
2009-SC-000206-MR ROCKCASTLE
TO BE PUBLISHED
OPINION OF THE COURT BY JUSTICE SCHRODER –
AFFIRMING
ALL SITTING. ALL CONCUR.

Questions Presented:
Two counts of Trafficking in a Controlled Substance, First Degree,
Second or Subsequent Offense; one count of Trafficking in a Controlled
Substance, Second Degree, Second or Subsequent offense; and three counts
of Persistent Felony Offender, First Degree (PFO I)-25 years. Where
trial judge’s absence was unavoidable and jurors were admonished not to
discuss the case, a 14 day delay in the trial was not a due process
violation, absent a showing of actual prejudice. Juror involved with
Operation UNITE properly seated on the jury. No double enhancement in
using a prior trafficking offense to prove subsequent offender status
and then using the remaining felonies in the same judgment as part of
the PFO proof.

124. CRIMINAL LAW:  DUI.
ROBIN KEN LEE V. COMMONWEALTH OF KENTUCKY
2009-SC-000371-DG HARDIN
TO BE PUBLISHED
OPINION OF THE COURT BY JUSTICE CUNNINGHAM –
AFFIRMING
ALL SITTING. ALL CONCUR

Questions Presented:
Criminal Law. DUI. The issues are 1. whether an officer's transporting a
defendant to a hospital where the attending physician refuses to
administer a blood alcohol test are a sufficient accommodation of a
defendant's
statutory right to an independent test under KRS 189A.103(7) and 2. if
the officer's actions are not a reasonable accommodation, is the remedy
suppression of the breathalyzer test or to dismiss the charge?

125. CIVIL PROCEDURE.  JURISDICTION RE CR 60 AND STAY CR 62.01
FOX TROT PROPERTIES, LLC V. HON. SAMUEL T. WRIGHT, III, AND DLX, INC.,
2009-SC-000329-MR LETCHER
TO BE PUBLISHED
OPINION OF THE COURT BY JUSTICE NOBLE – AFFIRMING
ALL SITTING. ALL CONCUR

Questions Presented:
Circuit Court had jurisdiction to entertain a motion for partial relief
from its judgment, under CR 60, and to stay enforcement of its judgment,
under CR 62.01, until it could rule on the motion.

Opinion of the Court by Justice NOBLE.

*1 Appellant, Fox Trot Properties, LLC, appeals to this Court from an order of the Court of Appeals denying its petition for a writ of prohibition. For the reasons set forth below, the order of the Court of Appeals is affirmed.

I. Background This case involves an order of the Letcher Circuit Court staying the enforcement of its own judgment. In 1995, the court entered default judgment against DLX, Inc., the real party in interest, for $312,234.40. This judgment was then assigned to Appellant, Fox Trot Properties, LLC, in 2004.

The only asset DLX has which could satisfy the judgment is an 82-acre tract of land in Estill County. This land has been subject to substantial litigation in Estill Circuit Court, Letcher Circuit Court, and U.S. Bankruptcy Court, all relating to Fox Trot's failed attempts to claim ownership of the tract, its placing clouds of title over the tract, and its attempts to force a sale of the tract to satisfy the judgment. This litigation has been going on from at least 2001 until at least 2008.

Based on this protracted litigation, DLX moved the Letcher Circuit Court in 2008 for partial relief from the judgment under CR 60. DLX claims that it should not have to pay full post-judgment interest because the only reason it has not yet satisfied the judgment is that Fox Trot has prevented the sale of the 82-acre tract through its many lawsuits. This is based on the equitable concept that a debtor does not owe interest during the period when the creditor prevents payment.

The Letcher Circuit Court ordered the parties to brief the motion and that Fox Trot be “stayed from any further actions to enforce the judgment until the issues have been fully briefed, presented and ruled upon by the Court.” In response, Fox Trot filed a writ of prohibition in the Court of Appeals, asserting that the Letcher Circuit Court did not have jurisdiction to stay enforcement of its judgment while it considered DLX's motion.

The Court of Appeals denied the writ. Fox Trot appealed to this Court as a matter of right. Ky. Const. § 115.

126. WORKERS COMPENSATION:  SOCIAL SECURITY BENEFITS.
HOYLE STYLES V. ELKHORN TRUCK PARTS & SERVICE;
2009-SC-000494-WC
TO BE PUBLISHED
OPINION OF THE COURT – AFFIRMING
ALL SITTING. ALL CONCUR.
Questions Presented:
Workers' Compensation. KRS 342.730(4). Whether a worker who qualifies for old-age social security benefits when injured may receive two years of permanent income benefits in addition to any temporary total disability benefits.

127. WORKERS COMPENSATION:  APPEALS
DAVID BELSITO V.  U-HAUL COMPANY OF KENTUCKY
2009-SC-000550-WC
TO BE PUBLISHED
OPINION OF THE COURT – AFFIRMING
ALL SITTING. ALL CONCUR

Questions Presented:
Workers' Compensation. Appellate Procedure. Whether a failure to serve
the Workers' Compensation Board with a copy of the petition for review
as required by CR 76.25(8) before filing a timely petition warrants
dismissal.

128.  CRIMINAL LAW:  PROBATION REVOCATION.
HON. KAREN CONRAD, JUDGE, V. KEITH THOMAS EVRIDGE
2009-SC-000687-MR FROM COURT
TO BE PUBLISHED
OPINION OF THE COURT BY JUSTICE NOBLE –
AFFIRMING
ALL SITTING. ALL CONCUR.

Questions Presented:
Probation Revocation. Court of Appeals properly granted writ of
prohibition where circuit court had no jurisdiction to hold a revocation
hearing after the probationary period had expired. KRS 533.020(1).

129. FAMILY LAW:  JURISDICITON, PATERNITY.
TREVOR ANDREW SMITH; AND BETHANY SMITH V. ELEANORE GARBER, JUDGE,
2009-SC-000738-MR JEFFERSON
TO BE PUBLISHED
OPINION OF THE COURT BY JUSTICE NOBLE – AFFIRMING
MINTON, C.J.,
CONCURS IN RESULT ONLY BY SEPARATE OPINION. CUNNINGHAM AND
SCOTT,
JJ., CONCUR IN RESULT ONLY WITHOUT
Questions Presented:
Family court was acting within its jurisdiction to order genetic testing in a paternity case where the putative father alleged and presented evidence that the child was born out of wedlock to a married woman whose marital relationship with her husband had ceased ten (10) months prior to the birth of the child.

130. CRIMINAL LAW:  SENTENCING. DNA EVIDENCE. LAW OF CASE DOCTRINE.
PHILLIP L. BROWN V. COMMONWEALTH OF KENTUCKY
2006-SC-000654-MR WARREN
TO BE PUBLISHED
OPINION OF THE COURT BY JUSTICE ABRAMSON – AFFIRMING IN PART, REVERSING
IN PART, AND REMANDING
CUNNINGHAM,
J., CONCURS IN RESULT ONLY BY SEPARATE OPINION IN WHICH MINTON,
C.J., JOINS.
ABRAMSON, J., CONCURRING IN PART AND DISSENTING IN
PART BY SEPARATE OPINION IN WHICH VENTERS, J., JOINS. SCOTT, J.,
CONCURRING
IN PART AND DISSENTING IN PART BY SEPARATE OPINION IN WHICH SCHRODER,
J., JOINS.

Questions Presented:
Defendant’s aggravated sentence of life without the possibility of parole for 25 years at the first trial was a finding that the Commonwealth had not proved that death was the appropriate penalty and it precluded the death penalty at the subsequent trial for the same offense. Ordinary standards of review are applicable because the case is now a non-capital case. Jury was properly seated. Trial court did not abuse its discretion by admitting defendant’s testimony from his first trial; the court’s failure to redact hearsay portions of that testimony was harmless error. Trial court did not abuse its discretion in admitting Commonwealth’s DNA evidence. Law-of-the-case doctrine is not applicable where the Commonwealth failed to show that at the first trial the trial court ruled on the question now raised regarding its DNA evidence. Cross-examination concerning defendant’s tattoos was improper but harmless with respect to his convictions.

131. ESTATE. JOINT BROKERAGE ACCOUNTS AND PAYABLE AT DEATH. KRS 392.315(1)(A)
LILA FAYE SPENCER V. ESTATE OF CHARLES SPENCER
2008-SC-000191-DG MCCRACKEN
2008-SC-000196-DG
TO BE PUBLISHED
OPINION OF THE COURT BY  JUSTICE ABRAMSON – AFFIRMING IN PART, REVERSING
IN PART, AND REMANDING
ALL SITTING. ALL CONCUR.

Questions Presented:
Joint Accounts. Multiple Party Accounts Act. KRS
391.315(1)(a). Issues include whether a joint brokerage account is a
joint account for purposes of KRS 391 .315(1)(a), which provides the
sums remaining on the death of
one party go to the surviving party as
against the estate.

132. ADMINISTRATIVE LAW.  TEACHER'S TERMINATION.  APPEAL USING FAX.
CARA SAJKO V. JEFFERSON COUNTY BOARD OF EDUCATION; ET AL.
2009-SC-000021-DG JEFFERSON
TO BE PUBLISHED
OPINION OF THE COURT BY JUSTICE NOBLE – AFFIRMING IN PART, REVERSING
IN PART, AND REMANDING
ALL SITTING. ALL CONCUR.

Questions Presented:
Notice. The issue is whether a teacher's fax to
general counsel for the school board followed by certified letters
mailed on the tenth day but
received on the eleventh day complies
with the provisions of KRS 161.790 (3) which affords school teachers the
right to appeal their termination.

133. CRIMINAL OFFENSES. SODOMY. INSTRUCTIONS. DV.
DANA TONY BANKS V. COMMONWEALTH OF KENTUCKY
2009-SC-000161-MR HARDIN
TO BE PUBLISHED
OPINION OF THE COURT BY JUSTICE VENTERS –
AFFIRMING IN PART AND REVERSING AND REMANDING IN PART
SCOTT, J., CONCURS IN PART AND DISSENTS IN PART BY SEPARATE OPINION, IN WHICH
CUNNINGHAM, J., JOINS.
CUNNINGHAM, J., CONCURS IN PART AND DISSENTS IN PART BY SEPARATE OPINION.

Questions Presented:
Nine counts of first-degree sodomy, five counts
of incest, and four counts of first-degree sexual abuse-Life
imprisonment. Sodomy instructions were sufficiently differentiated
between incidents except in two instances and those convictions are
reversed. Trial court properly denied motions for directed verdicts on
the sodomy and the incest charges and properly instructed on the sexual
abuse charges.

134. CRIMINAL. CRIMES. WANTON ENDANGERMENT AND PREGNANT MOTHER USE OF DRUGS.
INA COCHRAN V. COMMONWEALTH OF KENTUCKY
2008-SC-000095-DG CASEY
TO BE PUBLISHED
OPINION OF THE COURT –
REVERSING
VENTERS, J., DISSENTS BY SEPARATE OPINION, IN WHICH MINTON, C.J., JOINS

Questions Presented:
Criminal Law. Maternal Health Act. Prenatal
Conduct/Postnatal Injury. The primary issue concerns whether the offense
of wanton endangerment may extend to a pregnant woman who ingests drugs
during pregnancy, which results in postnatal injury.

135. EVIDENCE. KASPER RECORDS. PRIVILEGED FROM DISCLOSURE IN CIVIL.
CABINET FOR HEALTH AND FAMILY  SERVICES V. HONORABLE A.C. MCKAY CHAUVIN,
2008-SC-000509-MR JEFFERSON
TO BE PUBLISHED

OPINION OF THE COURT BY JUSTICE NOBLE – BY SEPARATE OPINION IN WHICH MINTON, C.J., JOINS.
REVERSING AND REMANDING
SCOTT, J., CONCURS BY SEPARATE OPINION.
ABRAMSON, J., DISSENTS

Questions Presented:
Request for Discovery of Kentucky All-Schedule Prescription Electronic Reporting (KASPER) records in a civil suit. Separation of Powers. Statutory Privilege. KRS 218 A.202’s prohibition of disclosure of privileged KASPER records to civil litigants, or to their attorneys, does not violate the separation of powers doctrine.

SNIPPET:
Last, it is worth noting that even if this Court were to find that KRS 218A.202 infringed on this Court's exclusive authority to promulgate rules of practice and procedure, the statute would nevertheless be entitled to comity. “It is not our disposition to be jealous or hypertechnical over the boundaries that separate our domain from that of the legislature.” Ex parte Farley, 570 S.W.2d 617, 624 (Ky.1978). Thus this Court accepts “reasonable encroachments” on our powers via the “rule of comity.” Commonwealth v. Reneer, 734 S.W.2d 794, 797 (Ky.1987). Any alleged encroachment here would be reasonable. Despite the statute, parties to civil suits may still get information about a person's prescription drug history from more direct sources: physicians who prescribe drugs, pharmacists who dispense them, or from the drug recipient. What they cannot do is get the more convenient compilation of records the Cabinet has. The statute does not ultimately prevent a civil litigant from getting discovery of drug histories, nor does it ultimately prevent a court from deciding to admit the histories into evidence. This is reasonable.

As a final note, this Court must make it clear, however, that such information as that which falls under the KASPER privilege is no different than any other privileged material when it comes to the court's power and ability to obtain that material. The court always has the inherent authority to review any act of the legislature for constitutionality, and the content of materials or data produced based on a statute to determine whether an exception to a privilege applies. Here, however, there is no question that the material at issue is the very report made privileged by the statute, and as the parties admit, no exception applies. Thus there is no need for an in camera review in this case.

III. Conclusion The legislature has the power to create privileges, such as to KASPER records, both from our own rules and from their inherent power to enact substantive law. Thus, the Court of Appeals erred in finding that the statute violated the separation of powers doctrine. The KASPER statute creates a privilege as to KASPER records, which the circuit court's discovery order would violate. For that reason, the order of the Court of Appeals is reversed and remanded, with instructions to issue the writ requested to bar enforcement of the circuit court's discovery order.

136.  WORKERS COMPENSATION:  GOING AND COMING RULE
SARAH FORTNEY, ADMINISTRATOR ET AL. V. AIRTRAN AIRWAYS, INC.
2009-SC-000429-WC
TO BE PUBLISHED
Questions Presented:
Workers' Compensation. Work-related. Whether the "going and coming" rule barred compensation for the death of an airline pilot traveling as a passenger under the employer's free or reduced-fare arrangement from the city where he resided to the city from which he worked.

OPINION OF THE COURT –
REVERSING AND REMANDING
VENTERS, J., DISSENTS BY
SEPARATE OPINION IN WHICH
SCHRODER, J., JOINS.

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