Sept. 9, 2011 COA Minutes — Nos. 803-827 (25 decisions; 6 published)

Sept. 9, 2011 COA Minutes —    Nos. 803-827 (25 decisions; 6 published)

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PUBLISHED DECISIONS OF COA:

803.  CRIMINAL PROCEDURE. 11.42 MOTION.  PLEA.  INEFFECTIVE ASSISTANCE OF COUNSEL
TIGUE (SHAWN)
VS.
COMMONWEALTH OF KENTUCKY
OPINION REVERSING AND REMANDING
WINE (PRESIDING JUDGE)
ACREE (CONCURS) AND COMBS (CONCURS)
2009-CA-000080-MR
2009-CA-001270-MR
TO BE PUBLISHED
BELL

WINE, JUDGE: The appellant, Shawn Tigue, appeals (2009-CA-0080) from an order of the Bell Circuit Court denying his Kentucky Rule of Criminal Procedure (“RCr”) 11.42 motion to set aside his judgment of conviction and sentence for murder, first-degree burglary, possession of a controlled substance not in the original container, and two counts of possession of a controlled substance.

Following a hearing, the trial court denied Tigue’s RCr 11.42 motion, finding that trial counsel had provided effective representation and further that Tigue had entered a knowing, voluntary, and intelligent guilty plea.

While the appeal from the denial of the above RCr 11.42 motion was pending, Tigue filed a pro se motion pursuant to Kentucky Rule of Civil Procedure (“CR”) 60.02 to overturn the previous order denying his RCr 11.42 motion for relief on the grounds that perjured testimony was offered at the RCr 11.42 hearing regarding physical evidence found at the crime scene. Although Tigue requested that representation be appointed for him on the CR 60.02 motion, the court declined to do so. The court then denied the motion without a hearing, in part, because Tigue filed a motion pro se while being represented by counsel. Regardless of this discrepancy, Tigue now timely appeals (2009-CA-1270) from the court’s order denying his CR 60.02 motion without a hearing.

Because the two appeals share common issues and circumstances, this Court ordered that they be consolidated for purposes of a decision on the merits. Having thoroughly reviewed the record, we reverse and remand for a new trial on the grounds that Tigue was denied counsel at a critical stage of the proceeding.

STANDARD OF REVIEW:

In order to prevail on a claim for ineffective assistance of counsel under an RCr 11.42 motion, a movant must show that his trial counsel’s performance was deficient and that such deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), as adopted by Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985). Under Strickland, the movant must show both incompetence and prejudice. Id. However, in some cases, such as where counsel is denied at a critical stage of the proceeding, prejudice need not be shown, but may be presumed. United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 2047, 80 L.Ed.2d 657 (1984). Indeed, the Supreme Court “has uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding.” Cronic, 466 U.S. at 659, n.25.

804. EDUCATION.  TEACHER'S DISMISSAL.
DRUMMOND (BENJAMIN)
VS.
TODD COUNTY BOARD OF EDUCATION
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
CAPERTON (CONCURS) AND CLAYTON (CONCURS)
2009-CA-000356-MR
TO BE PUBLISHED
TODD

ACREE, JUDGE: This case involves the discharge of a tenured teacher employed by the Todd County Board of Education (school board). The discharge followed an administrative ruling that the teacher had engaged in sexual contact with two students, constituting conduct unbecoming a teacher. On appeal, we are asked to consider whether the hearing officer’s procedural and evidentiary rulings were flawed and whether the tribunal’s factual conclusion was supported by substantial evidence. Following careful review of the law and the record, we affirm.

Now, as before the circuit court, Drummond raises a host of alleged errors committed at the administrative level. He has presented a daunting assemblage of thirteen arguments4 supported by an appendix containing eighty-five items. As a result, we must do some housekeeping before addressing the substance of the issues. Drummond’s issues fall naturally into three categories. They are: (1) challenges to the sufficiency of the evidence; (2) issues regarding the admissibility of evidence; (3) and matters of procedure.

807
SUMME (MARK A.)
VS.
GRONOTTE (MARY ANNE WIMMERS)
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
DIXON (CONCURS) AND NICKELL (CONCURS)
2010-CA-000055-MR
TO BE PUBLISHED
KENTON

ACREE, JUDGE: The issue before us is whether the Kenton Circuit Court abused its discretion in finding that appellee, Mary Gronotte, Executor of the Estate of Mary C. Wimmers, was qualified as a lay witness to provide opinion testimony as to the value of a parcel of property owned by the estate. Finding no abuse of discretion, we affirm.

On appeal, Summe submits three principal arguments: (1) Gronotte was not qualified to provide expert testimony regarding the value of the Wimmers Property; (2) Gronotte was not qualified as a lay witness to provide opinion testimony regarding the value of the Wimmers Property; and (3) the jury’s verdict must be set aside because (i) the jury’s damages award is contrary to the manifest weight of the evidence, and (ii) Gronotte failed to present any evidence of damages caused by a temporary nuisance or trespass to support the jury’s verdict.

LAY EXPERT WITNESS RE VALUE OF PROPERTY STANDARD:

It is well established in this Commonwealth that a properly qualified lay witness may render an opinion regarding the value of property. Commonwealth, Department of Highways v. Slusher, 371 S.W.2d 851, 853 (Ky. 1963); see also Commonwealth, Department of Highways v. Fister, 373 S.W.2d 720, 721-23 (Ky. 1963); Commonwealth, Department of Highways v. Tyree, 365 S.W.2d 472, 475- 78 (Ky. 1963). To be so qualified, the lay witness must “know the property to be valued and the value of the property in the vicinity, must understand the standard of value, and must be possessed of the ability to make a reasonable inference.” Slusher, 371 S.W.2d at 853 (citation omitted). It is well within the trial court’s discretion to decide whether a lay witness is qualified to provide opinion evidence. See, e.g., United States v. Pierce, 136 F.3d 770, 773 (11th Cir. 1998). The witness’s “lack of specialized training goes only to the weight, not to the competency, of the evidence.” Tapp v. Owensboro Medical Health System, Inc., 282 S.W.3d 336, 339 (Ky. App. 2009) (quoting Owensboro Mercy Health System v. Payne, 24 S.W.3d 675, 677 (Ky. App. 1999)).

810.  CIVIL PROCEDURE.  PERSONAL JURISDICTION. LONG ARM STATUTE.  MOTION TO DISMISS.
BONDURANT (JO ANN)
VS.
ST. THOMAS HOSPITAL , ET AL.
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
CAPERTON (CONCURS) AND CLAYTON (CONCURS)
2010-CA-000166-MR
TO BE PUBLISHED
MCCRACKEN

ACREE, JUDGE: The appellant, Jo Ann Bondurant, appeals an order of the McCracken Circuit Court dismissing her claims against The Surgical Clinic, PLLC; K. Tyson Thomas, M.D.; St. Thomas Hospital; and Martha P. Leonard, M.D.; (collectively, hereinafter, the “Tennessee appellees”) for lack of personal jurisdiction. For the following reasons, we affirm.

MOTION TO DISMISS – STANDARD:

It is well established in Kentucky that, when considering a motion to dismiss under Kentucky Rules of Civil Procedure (CR) 12.02, the pleadings should be liberally construed in a light most favorable to the plaintiff and all allegations taken in the complaint to be true. Mims v. Western-Southern Agency, Inc. ̧ 226 S.W.3d 833, 835 (Ky. App. 2007). Because the issue of personal jurisdiction is a legal question to be answered in light of those allegations, we review the issue de novo. Appalachian Reg’l Healthcare, Inc. v. Coleman, 239 S.W.3d 49, 53-54 (Ky. 2007) (citations omitted).

LONG ARM:

Additionally, a Kentucky federal court reached the same conclusion when it determined it could not exercise personal jurisdiction over a nonresident defendant in Papa John’s Int’l, Inc. v. Entm’t Mktg. & Commc’ns Int’l, Ltd., 381 F.Supp.2d 638 (W.D. Ky. 2005). In Papa John’s, a dispute arose over marketing services that were being provided to Papa John’s by a New York corporation with its principal place of business in Connecticut. Id. at 640. The court noted that neither defendant conducted regular business in Kentucky or owned any property in Kentucky. Id. The court further noted that at no time during the business relationship did the defendants physically enter Kentucky; instead, “Papa John’s employees in Kentucky communicated via telephone, mail and email with Defendants in New York and Connecticut on the development of the marketing campaign.” Id. In declining to exercise personal jurisdiction, the court held:
There was virtually no evidence that Defendants solicited business in Kentucky or that they actually performed work in Kentucky. Plaintiffs produced no evidence that Defendants derived substantial revenues from business in Kentucky. Whatever agreement was reached, was not reached in Kentucky. . . . The facts here do not present the case of a corporation reaching out to create an on- going series of relationships with a Kentucky customer involving numerous billings, shipment of product to or from the state and substantial sums of money.
Id. at 643-44 (internal citations omitted).

821
STINSON (MARK)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
WINE (PRESIDING JUDGE)
ACREE (CONCURS) AND LAMBERT (CONCURS)
2010-CA-001647-MR
TO BE PUBLISHED
MADISON

WINE, JUDGE: On December 3, 2009, a Madison County grand jury indicted Mark Stinson for first-degree sexual abuse under Kentucky Revised Statute (“KRS”) 510.110(1)(d). The indictment specifically alleged that Stinson committed the offense “by being a person in a position of authority and subjecting L.P. to sexual contact and engaging in masturbation in the presence of L.P., a minor less than eighteen years old.” L.P. was the niece of Stinson’s wife and, at the time of the offense, was 17 years old. The alleged conduct occurred while L.P. was staying with Stinson family during the summer of 2009.

Consequently, KRS 510.110(1)(d) prohibits any person who occupies such a position of authority or special trust from engaging in sexual contact with minors in his or her care. Any sexual contact between such persons is presumed to be non-consensual. Moreover, we conclude that this presumption is not rebuttable. Thus, the element of lack of consent is not at issue under the facts presented in this case. Therefore, the trial court properly rejected Stinson’s proposed instruction. Accordingly, the judgment of conviction by the Madison Circuit Court is affirmed.

824.  BAD LINK TO CASE.  SORRY.
B.(N.)
VS.
H. (C.E.) II
OPINION AFFIRMING IN PART, VACATING IN PART AND REMANDING VACATING AND REMANDING IN PART
ACREE (PRESIDING JUDGE)
WINE (CONCURS) AND LAMBERT (CONCURS AND FILES SEPARATE OPINION)
2010-CA-002257-ME
TO BE PUBLISHED
FAYETTE

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809.  DAMAGES – PROPERTY DAMAGES, LOSS OF USE AND PROFITS.  EXPERTS.  DISMISSAL AS DISCOVERY SANTION.
ANDREW (BILLY) JR.
VS.
TURNER (COY) JR, ET AL.
OPINION REVERSING AND REMANDING
THOMPSON (PRESIDING JUDGE)
CAPERTON (CONCURS) AND LAMBERT (CONCURS)
2010-CA-000069-MR
NOT TO BE PUBLISHED
ADAIR

THOMPSON, JUDGE: Billy Andrew, Jr. appeals the Adair Circuit Court’s judgment on the pleadings against him arising out of a vehicle collision wherein he pursued a claim for property damage and lost business income. We reverse.

The defendants further moved for a motion in limine to exclude evidence regarding Andrew’s property damage claim. They contended that Andrew did not comply with the trial court’s discovery order and did not produce any documentation regarding the monetary damages to his truck and, thus, could not introduce evidence at trial regarding his property damage.
On November 25, 2009, the trial court issued an order granting the defendants’ motion in limine excluding the introduction of Andrew’s evidence. The defendants then moved for a judgment on the pleadings. On December 2, 2009, the trial court issued an order granting the defendants’ motion.
Andrew contends that the trial court erred by excluding his ability to present evidence regarding his claim for lost business income and dismissing his lost business income claim based on a judgment on the pleadings.
Kentucky Rules of Civil Procedure (CR) 12.03 provides that a party to an action may move for a judgment on the pleadings to expedite the termination of a controversy when the ultimate and controlling facts are not in dispute. City of Pioneer Village v. Bullitt County ex rel. Bullitt Fiscal Court, 104 S.W.3d 757, 759 (Ky. 2003). A judgment on the pleadings provides an avenue for disposing of a case where the allegations of the pleadings are admitted and only a question of law remains. Id. When moving for judgment on the pleadings, a party must admit for the purposes of his motion not only the truth of all his adversary's pleaded allegations of fact but also the falsity of all allegations which have been denied. Id. Finally, the judgment should be issued only if it appears beyond doubt that the nonmoving party cannot prove any set of facts that would entitle him to relief. Id.
In the instant case, the trial court granted the defendants’ motion in limine and excluded Andrew’s lost profits evidence based on the arguments in the defendants’ motion. The defendants contended that Andrew’s lost profits claim must be rejected because Andrew’s trucking company “Billy Andrew, Jr. Trucking, LLC.,” was the real party in interest, not Andrew individually. Thus, the trial court ruled that Andrew’s action could not move forward.

The defendants further moved for a motion in limine to exclude evidence regarding Andrew’s property damage claim. They contended that Andrew did not comply with the trial court’s discovery order and did not produce any documentation regarding the monetary damages to his truck and, thus, could not introduce evidence at trial regarding his property damage.
On November 25, 2009, the trial court issued an order granting the defendants’ motion in limine excluding the introduction of Andrew’s evidence. The defendants then moved for a judgment on the pleadings. On December 2, 2009, the trial court issued an order granting the defendants’ motion.
Andrew contends that the trial court erred by excluding his ability to present evidence regarding his claim for lost business income and dismissing his lost business income claim based on a judgment on the pleadings.
Kentucky Rules of Civil Procedure (CR) 12.03 provides that a party to an action may move for a judgment on the pleadings to expedite the termination of a controversy when the ultimate and controlling facts are not in dispute. City of Pioneer Village v. Bullitt County ex rel. Bullitt Fiscal Court, 104 S.W.3d 757, 759 (Ky. 2003). A judgment on the pleadings provides an avenue for disposing of a case where the allegations of the pleadings are admitted and only a question of law remains. Id. When moving for judgment on the pleadings, a party must admit for the purposes of his motion not only the truth of all his adversary's pleaded allegations of fact but also the falsity of all allegations which have been denied. Id. Finally, the judgment should be issued only if it appears beyond doubt that the nonmoving party cannot prove any set of facts that would entitle him to relief. Id.
In the instant case, the trial court granted the defendants’ motion in limine and excluded Andrew’s lost profits evidence based on the arguments in the defendants’ motion. The defendants contended that Andrew’s lost profits claim must be rejected because Andrew’s trucking company “Billy Andrew, Jr. Trucking, LLC.,” was the real party in interest, not Andrew individually. Thus, the trial court ruled that Andrew’s action could not move forward.

Based on these pretrial disclosures, we conclude that Andrew demonstrated that he had evidence to show a genuine issue of material fact. It is the plaintiff’s burden of proof to establish his claim by sufficient evidence. Jones v. Hillview Civil Service Comm'n, 813 S.W.2d 825, 827 (Ky.App. 1991). However, in the defendants’ pretrial filing, they concede that Mr. Basham would testify that the repair of the dump truck would be $22,820.41. Thus, by incorporating the defenses’ witnesses in his list, Andrew established that the amount of damages to his property was not zero but was to be determined by the evidence presented. Therefore, because Andrew produced sufficient evidence to put the issue of property damages in doubt, we conclude that the trial court erred by preventing him from offering expert testimony on damages. Baltimore & O. R. Co. v. Carrier, 426 S.W.2d 938, 941 (Ky. 1968). Accordingly, the judgment on the pleadings was premature and must be reversed.
For the foregoing reasons, the Adair Circuit Court’s judgment on the pleadings regarding Andrew’s two claims is reversed and remanded for further proceedings consistent with this opinion.

817.  TORTS. SLANDER.
PRESCOTT (LESLIE), ET AL.
VS.
YATES (MARCELLA J.)
OPINION REVERSING AND REMANDING
THOMPSON (PRESIDING JUDGE)
NICKELL (CONCURS) AND ISAAC (CONCURS)
2010-CA-001051-MR
NOT TO BE PUBLISHED
PIKE

THOMPSON, JUDGE: Leslie Prescott and South Williamson Lodging, Inc. (Prescott) appeal the Pike Circuit Court’s judgment after a jury trial. We reverse.
On November 6, 2003, Marcella J. Yates filed her complaint alleging Prescott slandered her by stating that Yates was a thief. After proceedings progressed over four years, the trial court scheduled a trial for October 6, 2008. On September 10, 2008, Prescott’s third counsel moved to withdraw, which was granted. The trial court granted Prescott twenty days, or until October 9, 2008, to retain new counsel. Despite its prior ruling, the trial court held a trial as originally scheduled on October 6, 2008, in the absence of Prescott and her counsel.

DEFAMATION AND QUALIFIED PRIVILEGE DEFENSE STANDARDS:

Defamation is established by proof of four elements: “(a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.” Harstad v. Whiteman, 338 S.W.3d 804, 810 (Ky.App. 2011) (quoting the Restatement (Second) of Torts § 558 (1977)). If an oral statement contains untrue allegations of criminal behavior, it is slanderous per se and evidence indicating malice is not required to obtain damages. Id.
In the context of an employment defamation case, Kentucky courts have recognized a qualified privilege for defamatory statements regarding an employee’s conduct. Stringer v. Wal–Mart Stores, Inc., 151 S.W.3d 781, 797 (Ky. 2004). Communications within a company are privileged if the communications were necessary for the company’s proper function and the enforcement of the law. Dossett v. New York Min. & Mfg. Co., 451 S.W.2d 843, 846 (Ky. 1970). When a qualified privilege is established, the complainant must prove that a statement was false and defamatory and uttered in malice. Stringer, 151 S.W.3d at 798.
We first observe that Prescott misconstrues the implication of the qualified privilege defense in a defamation case. While Prescott argues that the qualified privilege operated to exclude the testimony of her motel’s employees, the privilege does not operate to exclude certain types of testimony but rather alters the burden of proof in a defamation case. Unlike the attorney-client and spousal privileges that restrict testimony, the qualified privilege defense exists to place a
-5-
burden on the plaintiff to prove actual malice in a slanderous per se case. Id. at 797.

From the Stringer decision, we find the following discussion to be illustrative:
The significance of the defense of qualified or conditional privilege is that it removes the conclusive presumption of malice otherwise attaching to words that are actionable per se and thereby casts on the plaintiff a technical burden of proof in that respect. This does not require any greater degree of proof by the plaintiff, because the offensive character of the words still is sufficient by itself to support an inference of malice. The practical difference, therefore, is that in the one case the instructions do not require a finding of malice as a condition to recover and in the other they do.

820.  APPEAL.  DEFECTIVE BRIEF.
WEBB (WILLIAM TIMOTHY), ET AL.
VS.
MINIX (GARY R.), ET AL.
OPINION AFFIRMING
COMBS (PRESIDING JUDGE)
STUMBO (CONCURS) AND WINE (CONCURS)
2010-CA-001559-MR
NOT TO BE PUBLISHED
BOYD

COMBS, JUDGE:    William Webb appeals a judgment of the Boyd Circuit Court from a jury trial denying him an award of damages in a personal injury lawsuit. We affirm.

This appeal is based on evidentiary issues. Webb claims that the court committed error when it allowed admission of certain testimony during the trial. However, Webb has failed to include either a video or a written transcript of the trial as part of the record. After searching the entire record before us, we have not found any indication that Webb attempted to make the transcript part of the record. We have no reason to believe that it is missing due to an error of either the clerk of the circuit court or of the Clerk of the Court of Appeals. Therefore, we are unable to address Webb’s contentions. By law, we are compelled to assume that the missing record supported the decision of the trial court. Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985).
We also note that neither of the parties’ briefs complies with Kentucky Rule of Civil Procedure (CR) 76.12(4)(c)(iv), which requires references to the record in the statement of the case. Without citation to the record, we are not required to address the merits of the appeal. Monumental Life Ins. Co. v. Dept. of Revenue, 294 S.W.3d 10, 23 (Ky. App. 2008). In this case, we are unable to do so because material elements are absent from the record.
We also note that the appellants’ “corrected” brief does not include the trial court judge in the certificate of service as required by CR 76.12(5).
We affirm the judgment of the Boyd Circuit Court.

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