COA 2010 Minutes: February 26, 2010 (Nos. 194-230)

  • 37 decisions
  • 5 Published
  • 2 Petitions for rehearing DENIED
  • 1 motion to reconsider DENIED
  • 1 motion for interlocutory relief DENIED
  • Tort/Insurance Decisions:

Published Decisions with digest and link to full text decision at AOC:

195 CRIMINAL
LAWTON VS. COMMONWEALTH
APPEAL FROM FAYETTE CIRCUIT COURT  HONORABLE KIMBERLY N. BUNNELL, JUDGE
OPINION AFFIRMING
** ** ** ** ** BEFORE: NICKELL, STUMBO, AND WINE, JUDGES.

NICKELL, JUDGE: This is a case of first impression regarding escape from a home incarceration program (HIP). In Stroud v. Commonwealth, 922 S.W.2d 382, 384 (Ky. 1996), the Supreme Court of Kentucky held “[v]iolation of the Home Incarceration Program could result in a second-degree escape.”1 (emphasis added).  Jeremy D. Lawton questions whether unauthorized departure from a HIP could also result in a charge of third-degree escape.2

196 CRIMINAL
RICHARDS VS. COMMONWEALTH
APPEAL FROM FAYETTE CIRCUIT COURT
OPINION AFFIRMING
** ** ** ** **
BEFORE: NICKELL AND VANMETER, JUDGES; LAMBERT,1 SENIOR JUDGE.

NICKELL, JUDGE: Phillip Richards appeals from an order of the Fayette Circuit Court denying his motion for custody credit of 802 days. Because his ten-year Kentucky sentence was ordered to run concurrently with an eight-year Florida sentence he was already serving, Richards claims he is entitled to immediate credit against his Kentucky sentence for any time served on the Florida sentence. The Commonwealth does not argue Richards will not receive credit for time already served, only that the credit will not be calculated and awarded until completion of the Florida sentence. Otherwise, Richards would erroneously receive double credit for the time spent in custody in Florida. We affirm the denial of custody credit.

199 CRIMINAL
DORRIS VS. COMMONWEALTH
APPEAL FROM OHIO CIRCUIT COURT HONORABLE RONNIE C. DORTCH, JUDGE
OPINION REMANDING
** ** ** ** **
BEFORE: KELLER AND WINE, JUDGES; LAMBERT, SENIOR JUDGE.

WINE, JUDGE: Appellant, Charlie Dorris (“Dorris”), pro se, appeals from the Ohio Circuit Court’s order denying his motion for post-conviction relief under Kentucky Rule of Civil Procedure (“CR”) 60.02. Dorris argues that the trial court erred by failing to conduct a competency hearing. Upon a review of the record, we remand for a determination of whether a retroactive competency hearing is permissible.

210 FAMILY LAW
KERR VS. OSBORNE
APPEAL FROM JOHNSON CIRCUIT COURT   HONORABLE JANIE MCKENZIE-WELLS, JUDGE
OPINION VACATING AND REMANDING
** ** ** ** ** BEFORE: NICKELL AND WINE, JUDGES; HARRIS,1 SENIOR JUDGE.

NICKELL, JUDGE: Toni Jones Kerr appeals from an order of the Johnson Circuit Court, Family Division, denying her motion to vacate an agreed order signed in May 2008 by Kerr and Michael S. Osborne. That order gave custody of their baby girl to Osborne and granted Kerr supervised weekend visitation with the child. Though unmarried, Osborne and Kerr are the undisputed parents of the child. The circuit court approved and signed the agreed order, which Osborne maintains is a final custody decree under KRS Chapter 403. Kerr claims should be set aside because she was duped into signing it while under the influence of alcohol and was mislead about its contents. She argues the agreed order is not a final custody order because, among other alleged flaws, it contains no findings of fact and makes no statement about the best interests of her daughter. The trial court denied a motion to vacate because it was filed outside the ten-day window permitted by CR2 59.05, and it was not filed within a reasonable time as required by CR 60.02. Having reviewed the record, the briefs and the applicable law, we vacate and remand for further proceedings consistent with this Opinion.

211
BENJAMIN VS. JP MORGAN CHASE BANK, NA
APPEAL FROM JEFFERSON CIRCUIT COURT   HONORABLE IRV MAZE, JUDGE
OPINION AFFIRMING
** ** ** ** ** BEFORE: ACREE, KELLER, AND LAMBERT, JUDGES.

LAMBERT, JUDGE: JP Morgan Chase Bank, as successor trustee under the last will and testament of Katherine Ida Kroeckel Hagan, brought this action for a declaration of rights with regard to certain funds presently held in a testamentary trust established for the benefit of thirteen charitable organizations (the “Trust”). Appellees are ten of the thirteen named beneficiaries of the Trust who have entered an appearance in this case (the “Charities”). Appellants are Hagan’s thirty-two heirs-at-law (the “Heirs”). The Heirs ask that the bulk of the trust funds be distributed to them under Kentucky’s statutory intestacy scheme.    Both the Charities and the trustee seek to distribute all the Trust funds to the Charities. The Jefferson Circuit Court entered judgment in favor of the Charities on February 5, 2009, holding that the Trust funds should be distributed to the Charities pro rata according to Hagan’s expressed intent and the cy pres doctrine. After careful review, we affirm.

230 WORKERS COMPENSATION
AMERICAN GREETINGS CORP. VS. BUNCH
PETITION FOR REVIEW OF A DECISION  OF THE WORKERS’ COMPENSATION BOARD
HONORABLE JOSEPH W. JUSTICE, ADMINISTRATIVE LAW JUDGE
OPINION AFFIRMING
BEFORE: LAMBERT AND THOMPSON, JUDGES; KNOPF,1 SENIOR JUDGE.

LAMBERT, JUDGE: American Greetings Corporation appeals a September 4, 2009, decision of the Workers’ Compensation Board which reversed an ALJ decision determining Sheila Bunch’s eligibility for workers’ compensation benefits. The Board determined that Bunch was within the course and scope of her employment when she was injured at an annual charity event held during her unpaid lunch break at her place of employment. Agreeing with the Board that the undisputed facts of this case warranted a reversal of the ALJ’s determination, we affirm.