SCOKY MONTHLY CASE SUMMARY REPORT: March 2011

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.

 

PUBLISHED OPINIONS

KENTUCKY SUPREME COURT

MARCH 2011

 

I. CONTRACTS

 A. Joseph Fischer; and Cindy Fischer v. John R. Fischer, Successor    Executor of the Estate of John Fischer

  2009-SC-000245-DG    March 24, 2011

 

  Opinion of the Court by Justice Noble.  All sitting.  In a contractual    dispute between two brothers over their prior oral arrangement to divide    inheritance from their now deceased mother, the Court of Appeals     reversed an award on the contract because of the rule voiding contracts    that assign a mere expectancy, though this rule had not been raised at trial.    The Supreme Court held that the Court of Appeals erred by reversing on    an issue not raised at trial, absent the existence of manifest injustice.     However, the Court affirmed the Court of Appeals on other grounds    properly preserved at trial, namely, that the contract violated the statute of    frauds’ requirement that contracts involving the transfer of land—a    substantial component of the mother’s estate—be in writing.  The fact that   Appellee, victorious at the Court of Appeals, had failed to cross-appeal    that court’s judgment on the statute of frauds issue, did not preclude    review on this issue, where he had raised it in his responsive brief as an    alternative grounds for affirming the judgment below.  Justices Scott and    Schroder concurred in result only.   

 

II. CRIMINAL

 A. Denver Ray Williams v. Commonwealth of Kentucky 

  2009-SC-000440-DG    March 24, 2011

 

  Opinion of the Court by Chief Justice Minton.  All sitting.  The Supreme    Court affirmed a Court of Appeals opinion affirming trial court’s denial of   RCr 11.42 relief. Issues/holdings include: 1) defendant’s convictions for    two counts of trafficking for possessing one quantity of controlled     substance in vehicle and one quantity of controlled substance on his    person shortly following arrest did not result in double jeopardy violation    because his arrest constituted legal process and precedent requires that the    same contraband must be continually possessed—without an interruption    in the form of legal process–in order for only one offense to have     occurred.  Justice Noble concurred in result only. 

 

 B. George Lapradd, Jr. v. Commonwealth of Kentucky

  2009-SC-000214-DG             March 24, 2011

 

  Opinion of the Court by Justice Schroder.  All sitting; all concur.  The    issue in this case was the burden of proof and how the jury was to be 

  instructed when a choice of evils defense was raised pursuant to KRS    503.030.  The Supreme Court held that the jury instructions improperly    failed to place the burden of proof on the Commonwealth to show that the    defendant was not privileged to take the action he did by including the    absence of the choice of evils as an element of the offense at issue,     reversing Beasley v. Commonwealth, 618 S.W.2d 179, 180 (Ky. App.    1981) and Peak v. Commonwealth, 34 S.W.3d 80, 82 (Ky. App. 2000), to    the extent they hold otherwise.  The conviction for possession of a     handgun by a convicted felon and PFO II was reversed and remanded for a   new trial.

 

 C. James Quisenberry v. Commonwealth of Kentucky

  Kenneth Williams v. Commonwealth of Kentucky

  2009-SC-000302-MR             March 24, 2011

  2009-SC-000418-MR    March 24, 2011

 

  Opinion of the Court by Justice Abramson.  All sitting; all concur.     Following a joint trial, the defendants were convicted of offenses     stemming from the robbery and killing of a woman and the shooting of the   woman’s two-year-old child.  Upholding the convictions, the Supreme    Court held (1) that the use at the joint trial of Quisenberry’s redacted    police statement did not infringe Williams’s confrontation rights; (2) that    interrogating officers did not violate Williams’s Miranda rights; (3) that    Quisenberry’s convictions were supported by sufficient evidence; and (4)    that Quisenberry’s convictions for having facilitated both an assault    against and the attempted murder of the child did not violate his right    under the Double Jeopardy Clause not to be punished twice for a single    offense. 

 

 D. Duwan Lamar Robbins v. Commonwealth of Kentucky 

  2009-SC-000643-DG             March 24, 2011

 

  Opinion of the Court by Justice Cunningham.  All sitting.  Evidence    obtained from defendant's vehicle was admissible because it was validly    obtained during a lawful search incident to arrest.  Though defendant was    initially stopped  due to an outstanding bench warrant, his act of throwing    a small package of cocaine on the ground gave rise to new charges of    trafficking in cocaine.  Thus, pursuant to Arizona v. Gant, officers had a    reasonable belief that evidence relating to the trafficking charge would be    found in the vehicle.  Justice Noble concurred in result only. 

 

 E. Jonathan Harris v. Commonwealth of Kentucky

  2009-000621-MR             March 24, 2011

 

  Opinion of the Court by Justice Venters.  All sitting; all concur. –     Criminal;  Direct Appeal. Defendant was convicted of numerous charges, 

  including a second-degree persistent felony offender enhancement     presided over by senior judge sitting as special judge.  On appeal     Defendant alleged that his conviction was void because it was presided    over by an unconstitutionally appointed judge and that because he was    under 21 at the time he presented his present plans.  The Court held: (1)    that the judgment against defendant was not void because, under the    circumstances present here, the appointment of a retired judge from the    senior status program to preside over his trial did not violate Kentucky    Constitutional provisions for elected or gubernatorially-appointed judges;    and (2) that defendant’s conviction as a second-degree persistent felony    offender was proper under KRS 532.080(2) even though the defendant    was under the age of 21 at the time he committed the present crimes and    that KRS 532.080(2) is constitutional both facially and as applied.

 

 F. Commonwealth of Kentucky v. Raycine Love

  2009-SC-000671-DG             March 24, 2011

 

  Opinion of the Court by Chief Justice Minton.  All sitting.  Supreme Court   affirmed Court of Appeals opinion reversing trial court’s revocation of    Love’s probation and order to run Kentucky sentence consecutively to    federal sentence.  Issues/holdings include: 1) under plain language of KRS   533.040(3), probation revocation must be completed (not just initiated) in    order for state court sentence to run consecutively to federal sentence    imposed on probationer during state court-imposed probation.  Justice    Scott dissented by separate opinion, joined by Justice Cunningham.  

 

III. ELECTIONS

 A. Jimmy R. Gibson, et al. v. Randy Thomspon

  2010-SC-000708-I             March 24, 2011

 

  Opinion of the Court by Justice Cunningham.  All sitting; all concur.     Movants, whose motion challenging the qualifications of a county judge    executive candidate was dismissed for lack of standing, were not entitled    to seek relief in the Court of Appeals pursuant to KRS 118.176.  By its    own terms, that statute affords relief only where the trial court has     determined that the candidate is not a bona fide candidate.  

 

IV. MARITAL PROPERTY

 A. Carolyn Rice v. Jackie Rice

  2009-SC-000730-DG             March 24, 2011

 

  Opinion of the Court by Justice Noble.  All sitting; all concur.  In a    property division proceeding, the trial court had ruled that debt incurred by   an adult son, using the parents’ credit cards, but with the permission and    knowledge of only the husband, was marital debt to be divided equally    between the husband and wife, and the Court of Appeals affirmed.  The 

  Supreme Court reversed, holding that the trial court abused its discretion,    because debt incurred on behalf of an adult son, no longer an obligee of    the parents, is nonmarital property when authorized by only one partner.

 

V. PERSONAL JURISDICTION

 A. Gerald S. Hinners v. Brad Robey, D/B/A Robey’s Pawn World 

  2009-SC-000389-DR             March 24, 2011

 

  Opinion of the Court by Justice Venters.  All sitting, all concur. Civil;    Application of Long Arm Statute (KRS 454.210); Plaintiff alleged that    defendant was subject to personal jurisdiction in Kentucky as a result of    out-of-state defendant’s sale of a vehicle on the Internet auction site,    eBay.com, pursuant to Kentucky’s long-arm statute, KRS 454.210, and    federal due process standards.  The Court held that the eBay transaction    fell within the parameters of KRS 454.210, but this single contractual    transaction failed to establish sufficient minimum contacts with Kentucky    so as to make jurisdiction reasonable under federal due process standards    for Kentucky courts to exercise personal jurisdiction over defendant in    relation to the vehicle sale.  

 

 B. Caesars Riverboat Casino LLC, et al. v. Carla Beach

  2009-SC-000634    March 24, 2011

 

  Opinion of the Court by Justice Venters.  All sitting; all concur.  Civil;    Application of Long-Arm Statute, KRS 454.210; Plaintiff alleged that out-   of-state defendants were subject to personal jurisdiction in Kentucky in a    lawsuit brought by Kentucky resident as a result of a slip and fall accident    that occurred on a casino boat located in Indiana.  Plaintiff alleged long-   arm jurisdiction over nondomiciliary defendants’ because of their contacts   with Kentucky, which consisted of pervasive in-state mass media and    billboard advertising; direct mail marketing; special customer programs to    attract repeat visits; and substantial charitable and civic activities in    Kentucky; and the fact that fifty-percent of their revenues  are derived    from Kentucky residents.  The Court held that none of the activities,    contacts, or circumstances of the defendants either individually or in    combination, fell within any of the categories specified in our long-arm    statute so as to confer Kentucky with in personam jurisdiction over    defendants, and thus Kentucky jurisdiction did not have jurisdiction over    the lawsuit. 

 

 

 

 

I. RETIREMENT

 A. Kentucky Retirement Systems v. Dillard Wayne Brown AND

  Kentucky Retirement Systems v. Tammy Sizemore

                        2008-SC-000326-DG  March 24, 2011

                        2008-SC-000898-DG  March 24, 2011

                        2009-SC-000174-DG  March 24, 2011

 

  Opinion of the Court by Justice Scott. All sitting.  Minton, C.J.;     Abramson, Cunningham, Schroder, and Venters, JJ., concur.  Noble, J.,    concurs in result only.  In this case, the Court reviewed two cases in which   Kentucky Retirement Systems had denied disability benefits, as it     determined the claimants’ conditions pre-existed their employment.  The    Court stated that ―the person seeking the entitlement determination must    prove to the trier of fact that his or her condition was not pre-existing    membership by a preponderance of the evidence.‖  Furthermore, Kentucky   Retirement Systems’  determination as to whether a condition was pre-   existing must be based upon ―objective medical evidence.‖  Both     claimants met their burden of proving that their conditions did not pre-   exist their employment.  Consequently, the Court affirmed the Court of    Appeals on these issues.  The Court also addressed Sizemore’s claim that    the Court of Appeals erred in upholding Kentucky Retirement Systems’    finding that she was not permanently incapacitated.  The Court affirmed    the Court of Appeals on this issue as well.

 

VI. WRITS

 A. Commonwealth ex rel Conway v. Honorable Phillip J. Shepherd,    Judge, Franklin Circuit Court and Gregory Wilson, et al. 

  2010-SC-000586-OA     March 24, 2011

  2010-SC-000589-OA              March 24, 2011

 

  Opinion of the Court by Chief Justice Minton.  All sitting.  Supreme Court   declined to exercise discretion to issue writ to dismiss death row inmates’    declaratory judgment action challenging validity of Kentucky death    penalty regulations, to prohibit Franklin Circuit Court from entering orders   on matters resolved by or pending before other courts, or to otherwise    disturb temporary injunction entered by Franklin Circuit Court staying    execution of death row inmate Gregory Wilson.  Supreme Court stated    that public interest favored allowing declaratory judgment action and    Wilson’s appeal of Kenton Circuit Court’s denial of relief to proceed, that    Franklin Circuit Court appropriately balanced equities in entering     temporary injunction, and that any possible overstepping by Franklin    Circuit Court into matters more appropriately resolved by other courts or    any errors in determining validity of death penalty regulations could be    adequately remedied by appeal.  Justices Cunningham and Scott dissented.  

 

 B. Velessa Hathaway v. Audra J. Eckerle and Commonwealth Dodge,    LLC

  2010-SC-000457-MR              March 24, 2011

 

  Opinion by Justice Venters.  All sitting, all concur.  Hathaway filed for a    writ of prohibition against Judge Eckerle because she ordered Hathaway to   arbitrate her dispute with Commonwealth Dodge per an arbitration clause    included in a vehicle sales contract.  Hathaway argued that she was    entitled to a writ because the arbitration clause did not satisfy KRS     417.050 or 417.200, and thus Judge Eckerle was without jurisdiction to    order the parties to arbitrate.  See Ally Cat, LLC v. Chauvin, 274 S.W.3d    451 (Ky. 2009).  However, the Court held that the Federal Arbitration Act    is the law governing this arbitration clause due to a ―choice of law‖    provision in the contract.  Thus, neither the Kentucky Arbitration Act or    Ally Cat applied to the arbitration clause, and Judge Eckerle had     jurisdiction to order the parties to arbitrate.  Further, the Court held that    the arbitration clause in question was not unconscionable and that there    were no grounds to revoke the vehicle sales contract at law. 

 

 C. Hon. William Mitchell Nance, Circuit Court Judge, 43rd Judicial    Circuit, Division Two (Family Court), Commonwealth of Kentucky v.    Kentucky Administrative Office of the Courts

  2010-SC-000202-OA             March 24, 2011

 

  Opinion of the Court by Justice Noble.  Chief Justice Minton not sitting.     Judge Nance sought a writ of prohibition to enjoin the Administrative    Office of the Courts (AOC) from terminating the employment of the    family court administrator in the judicial circuit where he presides.  The    Supreme Court denied the writ because the Chief Justice, as executive    head of the Court of Justice, has the power to appoint administrative    assistants as he deems necessary, and hence the derivative power to    terminate their employment.  The Chief Justice has the further authority to   delegate this power, as he did to the Director of the AOC here.  Justice    Abramson filed a concurring opinion to emphasize that Section 110 of the    Kentucky Constitution’s authorization for the Chief Justice to perform all    necessary administrative functions is controlling, absent any Supreme    Court rule enacted pursuant to Section 116, which might limit such    authority.  Justice Schroder filed a dissenting opinion, stating that because    Section 116 authorizes the Supreme Court as a whole to adopt personnel    policy, the Chief Justice may not amend or override personnel policies unilaterally.

 

VII. ATTORNEY DISCIPLINE  

 A. Kentucky Bar Association v. Margaret M. Jackson-Rigg

  2010-SC-000684-KB    March 24, 2011

 

  Opinion of the Court.  All sitting.  The Supreme Court suspended the    Respondent from the practice of law for a period of one year, to be served    consecutively to any and all prior suspensions.  Justice Schroder dissented. 

 

 B. Kentucky Bar Association v. Christopher S. Harwood

  2010-SC-000715-KB              March 24, 2011

 

  Opinion of the Court.  All sitting; all concur.  The Supreme Court     retroactively suspended the Respondent from the practice of law for a    period of six months effective April 7, 2010, to run concurrently with a 6-   month sentence that was entered and probated by the Ohio Supreme Court. 

 

 C. Kentucky Bar Association v. Patrick Edward Moeves

  2009-SC-000270-SC              March 24, 2011

 

  Opinion of the Court.  All sitting; all concur.  The Supreme Court     suspended the Respondent from the practice of law for one year for    violation of conditional discipline stated in a prior order of the Court.  The   Court further suspended the Respondent from the practice of law effective    March 24, 2011, and until superseded by subsequent order of the Court.   

 

 D. J. Thomas Hardin v. Kentucky Bar Association 

  2010-SC-000800-KB             March 24, 2011

 

  Opinion of the Court.  All sitting; all concur.  The Supreme Court     suspended the Movant from the practice of law for two years. 

 

 E. Kentucky Bar Association v. William O. Ayers

  2010-SC-000811-KB             March 24, 2011

 

  Opinion of the Court.  All sitting; all concur.  The Supreme Court     suspended the Respondent from the practice of law for thirty days,     effective March 24, 2011, to be served consecutively with any and all    prior suspensions. 

 

 F. Kentucky Bar Association v. Leo Marcum

  2010-SC-000814-KB              March 24, 2011

 

  Opinion of the Court.  Justice Scott not sitting.  The Supreme Court    suspended the Respondent from the practice of law for three years, to be    served consecutively to any and all prior suspensions. 

 

 G. Kentucky Bar Association v. Sharon Easthom Rowsey

  2011-SC-000034-KB              March 24, 2011

 

  Opinion of the Court.  Justice Abramson not sitting.  The Supreme Court    suspended the Respondent from the practice of law for 181 days, with    sixty-one (61) days to serve and the balance being probated pending her    successful completion of the Ethics and Professionalism Enhancement    Program. 

 

 H. Kentucky Bar Association v. David Kaplan

  2011-SC-000038-KB              March 24, 2011

 

  Opinion of the Court.  All sitting; all concur.  The Supreme Court adopted    the recommendation of the trial commissioner to suspend respondent from   the practice of law for five years for the commission of several ethical    violations all related to the unauthorized practice of law during an earlier    suspension.

 

 

 I. James W. Patton v. Kentucky Bar Association

  2011-SC-000072-KB              March 24, 2011

 

  Opinion of the Court.  All sitting; all concur.  The Supreme Court     reinstated the Movant to the practice of law. 

 

 J. Valerie L. Bock v. Kentucky Bar Association 

  2011-SC-000074-KB              March 24, 2011

 

Opinion of the Court.  All sitting; all concur.  The Supreme Court     suspended the Respondent from the practice of law for 181 days, ninety    days to be served and the balance of ninety-one days probated until    December 2, 2013, subject to certain conditions. 

 

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