COA 2009 Minutes: September 25, 2009 (Nos. 980-1000)

COA 2009 Minutes: September 25, 2009 (Nos. 980-1000)

• 21 decisions
• 9 published

PUBLISHED DECISIONS WITH LINKS TO FULL TEXT

980
TUCKER V. COMMONWEALTH
CRIMINAL
OPINION REVERSING AND REMANDING WITH INSTRUCTIONS
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BEFORE: COMBS, CHIEF JUDGE; THOMPSON, JUDGE; HARRIS,1 SENIOR JUDGE.
HARRIS, SENIOR JUDGE: Christopher L. Tucker appeals from a judgment and sentence on plea of guilty dated July 5, 2007, and entered in the Washington Circuit Court on July 6, 2007, sentencing him to two years in prison for Flagrant Non-support. After carefully reviewing the briefs, record, and oral arguments, we reverse and remand this case to the Washington Circuit Court with directions to dismiss the indictment and list this case as “Dismissed-Diverted” pursuant to KRS 533.258. We do so because we are persuaded that in the absence of a motion to revoke being filed before Tucker’s pretrial diversion term expired on March 31, 2007, the Washington Circuit Court lacked authority to revoke Tucker’s Class D Felony Pretrial Diversion after that date.

987
FUEL TRANSPORT, INC. V. GIBSON
AFFIRMING IN PART AND REVERSING IN PART
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BEFORE: CLAYTON AND THOMPSON, JUDGES; LAMBERT,1 SENIOR JUDGE.
CLAYTON, JUDGE: Appellants, Fuel Transport, Inc. and Troy E. Vanderpool (Vanderpool), bring this appeal in a wrongful death case against appellee, Garnett Gibson, as executor and personal representative of the estate of Topsie Gibson, from the final judgment of the Knott Circuit Court entered on January 8, 2008, and the trial court's denial of their posttrial motions entered on May 1, 2008. For the reasons stated herein, we affirm in part and reverse in part. * * *

On appeal, appellants present the following issues: (1) the trial court erred in denying their motion for a new trial based on prejudicial juror misconduct and bias; (2) the court erred in permitting the jury to consider punitive damages against Fuel Transport; (3) the punitive damages awarded were unconstitutionally excessive; (4) the award for pain and suffering was unsupported by evidence and based on passion and prejudice; (5) the court erred in its instructions on pain and suffering and punitive damages; and (6) the court erred in refusing to transfer venue. * * * [I]n reviewing the record, this Court finds that appellants failed to ask a proper question which may have elicited the response that they now complain is prejudicially omitted. Appellants argue that Short failed in her duty to disclose that her father had been involved in a fatal automobile accident. They further allege that not only did her father's accident ultimately affect her decision, but had she disclosed this information, she would have either been removed for cause or preemptively struck from the panel of jurors.

988
ROBINSON V. COMMONWEALTH
CRIMINAL LAW  – APPEALS, CONDITIONAL PLEA

AFFIRMING
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BEFORE: CAPERTON AND THOMPSON, JUDGES; GRAVES,1 SENIOR JUDGE.
THOMPSON, JUDGE: Jerrell Lamar Robinson appeals from the Fayette Circuit Court's judgment following his conditional guilty plea to failing to register as a sex offender. Pursuant to his plea, Robinson reserved the right to appeal the denial of his motion to amend his indictment from a felony to a misdemeanor. For the reasons stated herein, we affirm.

992
ZAPP V. CSX TRANSPORTATION, INC.
TORTS – FELA (FEDERAL EMPLOYEES LABOR ACT) & SOL
OPINION REVERSING AND REMANDING
** ** ** ** ** BEFORE: COMBS, CHIEF JUDGE; NICKELL AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Larry Zapp brings this appeal from a June 18, 2008, Order of the Jefferson Circuit Court which granted a motion for directed verdict by CSX Transportation, Inc. (CSX) and dismissed Zapp’s claim under the Federal Employers’ Liability Act as barred by the statute of limitations.1    We reverse and
remand. * * * From Zapp’s above testimony, the circuit court concluded that Zapp
“knew, at least as early as 1999, that he had hand problems that were brought about at work” and that “this testimony . . . [constituted] a judicial admission.” Relying upon Zapp’s testimony and, more particularly, the “judicial admission,” the circuit court then found that Zapp “knew or should have known by 1999 that he had a potential work-related claim.” As Zapp filed his FELA claim on December 18, 2003, the circuit court concluded that Zapp’s claim was filed outside the three-year statute of limitations period.

993
ROSKIE V. COMMONWEALTH
CRIMINAL LAW -  Interstate Agreement on Detainers (IAD)
OPINION AFFIRMING
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BEFORE: COMBS, CHIEF JUDGE; THOMPSON, JUDGE; HARRIS,1 SENIOR JUDGE.
HARRIS, SENIOR JUDGE: William Roskie appeals from a Harlan Circuit Court order denying his motion to dismiss his indictment pursuant to the Interstate Agreement on Detainers (IAD). The sole question before us is whether Roskie waived his right to have final disposition of his case within 180 days by accepting a trial date that would occur after the time period lapsed. After reviewing the briefs and the record, we affirm.

995
LITTLE V. HALL
PROPERTY – PRESCRIPTIVE EASEMENTS
OPINION AFFIRMING
** ** ** ** ** BEFORE: COMBS, CHIEF JUDGE; VANMETER, JUDGE; LAMBERT,1
SENIOR JUDGE.
VANMETER, JUDGE: Johnny Little and Mary Little appeal from the Knott Circuit Court’s order granting permanent injunctive relief which barred them from obstructing a road across their property. We affirm.

996
PHILLIPS V. COMMONWEALTH
CRIMINAL LAW – SENTENCING
AFFIRMING
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BEFORE: COMBS, CHIEF JUDGE; VANMETER, JUDGE; LAMBERT,1 SENIOR JUDGE.
VANMETER, JUDGE: Shane Phillips (Phillips) appeals from the Carter Circuit Court’s denial of his motion for an evidentiary hearing regarding the accuracy of
1 Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.
statements contained in the victim impact statement considered by the court during Phillips’ sentencing phase. For the following reasons, we affirm.

997
MULLINS V. REDFORD
CIVIL PROCEDURE – FAILURE TO PROSECUTE
OPINION REVERSING AND REMANDING
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BEFORE: CLAYTON AND THOMPSON, JUDGES; LAMBERT,1 SENIOR JUDGE.
LAMBERT, SENIOR JUDGE: Appellant, Joseph Mullins, pro se, appeals from a judgment of the Letcher Circuit Court dismissing his claims against Redford Township and West Bloomfield Township in Michigan and certain police officers employed by each. Appellant asserts that police officers from these two Michigan Townships traveled to his home in Letcher County, Kentucky, arrested him, and forcibly transported him to Michigan where he was incarcerated for two weeks. As a result, Appellant filed a civil action in the Letcher Circuit Court where he presented various theories of recovery including conspiracy to commit kidnapping, assault, battery, false imprisonment, false arrest, trespassing, and violation of his civil rights under the Fourteenth Amendment.

998
HOLLY CREEK PRODUCTION V. BANKS
CIVIL PROCEDURE – DEFAULT JUDGMENT, BROAD ENOUGH TO INCLUDE CLAIM RE ROYALTIES
OPINION AFFIRMING IN PART AND VACATING IN PART
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BEFORE: ACREE AND VANMETER, JUDGES; LAMBERT,1 SENIOR JUDGE.
LAMBERT, SENIOR JUDGE:
Despite provisions in the rules of civil procedure allowing for the liberal amendment of pleadings, Kentucky Rules of Civil Procedure (CR) 5.01 requires that parties in default be given notice and served with summons or warning order when “new or additional claims for relief [are asserted] against them.” The question before the court in this case is whether the complaint filed by Appellees and upon which a default judgment was entered against Appellant was sufficiently broad to support additional claims for nonpayment of royalties and punitive damages, without additional process.