Nov. 2013 – Monthly Summary of Published Decisions

Here are short summaries with links to the full text of the published decisions only for the month of October from the Kentucky Court of Appeals.

CRIMINAL LAW

1073. Criminal Law. Appeal Dismissed on 3rd motion to vacate a denial of writ of habeas corpus
William Walker vs. Warden Brown
Oldham County
Judge Karen Conrad
Dismissing
COA Published 11/22/2013

LAMBERT, JUDGE: William B. Walker appeals the Oldham Circuit Court’s order denying his third Kentucky Rules of Civil Procedure (CR) 60.02 motion to vacate a 2003 order denying his petition for a writ of habeas corpus. Walker named William Seabold, Former Warden of the Kentucky State Reformatory, as the respondent/Appellee herein. The Commonwealth has filed a motion to dismiss the current appeal as frivolous, and the motion has been passed to this panel for review on the merits. After careful review, we hereby grant the Commonwealth’s motion to dismiss the appeal.

1076.  Criminal Law.  Probation revocation hearing and due process.

Dellard Lee Gibson v. Commonwealth of Kentucky
Jefferson County
Judge Martin F. McDonald
Reversing and Remanding
COA Published 11/22/2013

LAMBERT, JUDGE: Dellard Lee Gibson appeals from a Jefferson Circuit Court order revoking probation and executing sentence.

Gibson argues that the proceedings failed to comply with the minimal requirements of due process, which include the “opportunity to be heard in person and to present witnesses and documentary evidence” and “the right to confront and cross-examine adverse witnesses[.]” Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2603, 33 L.Ed.2d 484 (1972) (made applicable to probation revocation by Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 1759-60, 36 L.Ed.2d 656 (1973)). The Commonwealth agrees. Accordingly, we reverse the order revoking Gibson’s probation and remand for a new probation revocation hearing.

1090. Criminal Law.  Probation revocation.
Robinson vs. Commonwealth of Kentucky
McCracken, Judge Craig Z. Clymer
Affirming
COA Published 11/27/2013

1078. Criminal Procedure.  Peremptory Challenges.
Robert Prickett vs. Commonwealth of Kentucky
Jefferson
Judge Olu A. Stevens
Affirming
COA Published 11/22/2013

THOMPSON, JUDGE: Following a jury trial, Robert Prickett was found guilty of criminal facilitation to manufacturing methamphetamine, fourth-degree controlled substances endangerment to a child, illegal use or possession of drug paraphernalia, and being a second-degree persistent felony offender. He was sentenced in accordance with the jury’s recommendation to an enhanced sentence of fifteen-years’ imprisonment. On appeal, Prickett contends KRS 29A.290(2), requiring the Kentucky Supreme Court to establish the number of peremptory challenges to which parties are entitled is an unconstitutional delegation of legislative authority in violation of Section 28 of the Kentucky Constitution. The Commonwealth contends because Prickett did not present the issue to the trial court and the Attorney General was not notified of the constitutional challenge before the entry of final judgment, he is precluded from presenting the issue on appeal. Based on controlling precedent, we agree with the Commonwealth and affirm.

FAMILY LAW

1067.  Family Law.  Property settlement agreement.  Waiver of beneficiary rights in IRA
Ruth Ann Sadler vs. Barbara Louis Van Buskirk
Fayette County
Judge Jo Ann Wise
Affirming
COA Published 11/22/2013

CLAYTON, JUDGE: Ruth Ann Sadler appeals the Fayette Circuit Court’s order denying her motion to declare that Barbara Lois Van Buskirk waived beneficiary rights to Richard Van Buskirk’s Individual Retirement Account in the Buskirk’s property settlement agreement. After careful consideration, we affirm the trial court.

Interpreting the terms of the Settlement, it is certain that Richard had ownership of the Dreyfus IRA, which Barbara never challenged. As owner, Richard had the authority to designate a beneficiary, which he did. It was Barbara. Therefore, the terms of the Agreement are not thwarted by Barbara’s right to receive its beneficial interest. Barbara is not claiming ownership of the IRA but merely receiving, as a result of Richard’s authority as the owner of the account, the concomitant result of his beneficiary designation. Thus, our de novo review leads us to agree with the trial court’s decision.

1095. Family Law.  Grandparent visitation.
Fairhurst vs. Moon
McCracken, JUDGE
Reversing and Remanding
COA Published 11/27/2013

GOVERNMENT

1065.  Open Records Act, Final Agency Action
University of Louisville vs. William E. Sharp
Jefferson County
Judge Mitchell Perry
Reversing and Remanding
COA Published 11/22/2013

VANMETER, JUDGE: The University of Louisville appeals from an opinion and order of the Jefferson Circuit Court denying its motion for summary judgment.  We disagree with the circuit court’s conclusion that the University violated the Open Records Act and reverse its order and remand this case with directions for the circuit court to enter an order granting summary judgment in favor of the University.

In light of this authority, we are unable to say that a final agency action occurred in this case when the merger was still in the negotiating stage. The emails and their attachments constitute preliminary discussions regarding a scheduled meeting to continue the conversation. The sole purpose of the “communications meeting” was to discuss the pending merger, and strategies used to plan the meeting, including discussions relating to the invitation and agenda, are preliminary to resolution of the ultimate issue—the merger. Under the circuit court’s and the OAG’s rationale, any communication regarding the meeting loses its preliminary status when the meeting is held, even if the ultimate issue is not decided at the same time. This rationale would effectively require disclosure of all discussions regarding all meetings that take place, even if the meeting is merely a step along the road to deciding the ultimate issue.

For the foregoing reasons, the order denying summary judgment is reversed and this case is remanded to the circuit court with directions to enter an order granting summary judgment in favor of the University.

1093.  Administrative Due Process. Revoking license to sell alcohol.
Pizza Pub of Burnside, Ky vs. Commonwealth of Kentucky
Franklin; Judge THOMAS D. WINGATE
Reversing and Remanding
COA Published 11/27/2013

 JUVENILES

1079.  Juvenile.
H.(B), A Juvenile vs. Commonwealth of Kentucky
Bullitt
Judge Elisle Givhan Spainhour
Affirming
COA Published 11/22/2013

MOORE, JUDGE: B. H., a minor, appeals the Bullitt Juvenile Court’s order placing her in the temporary custody of the Cabinet for Health and Family Services (“Cabinet”). After a careful review of the record, we affirm because the Standard School Attendance Order was a valid court order and the court did not err in placing B. H. in the temporary custody of the Cabinet.

PROPERTY LAW

1025.  Property Law, Condominium assessments, etc. Steenrod v. Louisville Yacht Club Association, Inc. COA, Published 11/8/2013 Oldham County – Judge Karen Conrad Reversing, remanding one appeal; dismissing cross-appeal

TAYLOR, JUDGE: Ralston W. Steenrod brings Appeal No. 2011-CA-001444-MR from a June 10, 2010, summary judgment granted by the Oldham Circuit Court in favor of Louisville Yacht Club Association, Inc. (Yacht Association) for condominium assessments; a July 11, 2011, order denying a motion to reconsider; and a July 11, 2011, order awarding the Yacht Association attorney’s fees in this action. The Yacht Association brings Cross-Appeal No. 2011-CA-001493-MR from the July 11, 2011, order awarding it attorney’s fees. We reverse and remand Appeal No. 2011-CA-001444-MR and dismiss Cross-Appeal No. 2011-CA- 001493-MR as moot.

These appeals center upon the legal question of whether the Louisville Yacht Club (Yacht Club) was properly organized and established as a condominium property regime by Louisville Yacht Club, LTD, pursuant to the statutory laws of this Commonwealth. The Yacht Club consists of a boat marina and other ancillary property located at Pond Creek on the Ohio River in Oldham County, Kentucky. Steenrod maintains that the Yacht Club was not validly organized as a condominium property regime and, thus, the Yacht Association has no authority to assess any type of fees;1 conversely, the Yacht Association argues that the Yacht Club was a validly organized condominium property regime under Kentucky law at the time it was created in 1984. The circuit court rendered summary judgment concluding that as a matter of law the Yacht Club was a valid condominium property regime and the Yacht Association’s assessments were properly levied under the Master Deed.

In sum, we hold that the Boat Slips Units are not units within the meaning of KRS 381.810(1) and cannot be considered as part of a condominium property regime under KRS 381.805 – KRS 381.910 (Horizontal Property Law). Consequently, the circuit court erred by rendering summary judgment so holding. We do not address whether Steenrod is liable to the Yacht Association under any other applicable law or theories of recovery as this was not addressed by the circuit court.

 TORTS

1031.  Wrongful Death Claim.  Res ipsa loquitur, Medical Negligence. Bryan vs. Correctcare-Integrated Health, Inc. COA Published 11/8/2013 Oldham County –  Judge Karen Conrad Affirming in part, reversing in part, remanding

COMBS, JUDGE: Virginia Bryan, as Administratrix of the Estate of Marty Lewis McMillen, and Dorothy Camenzind, mother and next friend of McMillen’s minor son, appeal the judgment and supplemental judgment entered in favor of CorrectCare-Integrated Health, Inc., (“CorrectCare”) and Gloria Herrera, L.P.N., following a jury verdict in the Oldham Circuit Court. Bryan and Camenzind contend that the trial court erred by denying their motion for a directed verdict and by improperly instructing the jury. They also assert error in the award of $4,397.79 in costs to their opponents in a supplemental judgment. After our review, we affirm the judgment (Appeal No. 2012-CA-001500); we affirm in part and reverse and remand in part the supplemental judgment (Appeal No. 2012-CA- 001921).

Bryan and Camenzind filed this action against CorrectCare and Herrera on November 18, 2008. In their complaint, they alleged that Correctcare, through its employees (specifically Herrera), had been negligent in the care and treatment of McMillen. Correctcare and Herrera answered and denied the allegations made against them.

WORKERS COMPENSATION

1023. Workers Compensation. Kentucky State Police vs. McCray COA, Published 11/1/2013 Workers Comp

STUMBO, JUDGE: The Kentucky State Police (“KSP”) appeals from an Opinion of the Workers’ Compensation Board (“the Board”) which vacated and remanded an Opinion and Order of the Hon. Grant S. Roark, Administrative Law Judge (“ALJ”). ALJ Roark determined that Trooper Benjamin McCray’s claim for benefits arising from shooting-related Post-Traumatic Stress Disorder (“PTSD”) required proof that the PTSD resulted from a physical injury, and that the record did not support such a finding. In vacating the ALJ’s Opinion and Order, the Board concluded that the statutory definition of injury does not require physical contact, that a “work-related traumatic event” was sufficient to support a claim for benefits arising from PTSD, and that on remand the ALJ was required to re- examine whether McCray was entitled to benefits. The KSP now argues that Kubajak v. Lexington-Fayette Urban County Government, 180 S.W.3d 454 (Ky. 2005), requires proof of a physically traumatic event in order to sustain a claim for benefits arising from PTSD, and that the Board erred in failing to so find. We conclude that Kubajak holds that PTSD is compensable only if it results from a physically traumatic event to the Petitioner. Since ALJ Roark found that McCray was not physically injured in the shooting, and as this finding is supported by substantial evidence of record, we reverse the Board’s Opinion directing the ALJ to re-examine McCray’s claim for benefits.