COA 2010 Minutes: February 5, 2010 (Nos. 127-146)

COA 2010 Minutes: February 5, 2010 (Nos. 127-146)

• 41 decisions
• 8 published

127
FAMILY COURTS; ARBITRATOIN
CAMPBELL VS. CAMPBELL
OPINION REVERSING AND REMANDING WITH DIRECTIONS
** ** ** ** ** BEFORE: ACREE, TAYLOR, AND THOMPSON, JUDGES.
TAYLOR, JUDGE: George W. Campbell brings Appeal No. 2006-CA-001803- MR and Ginger C. Campbell brings Cross-Appeal No. 2006-CA-001827-MR from a July 31, 2006, Findings of Fact, Conclusions of Law and Judgment, styled as a judgment of the Jefferson Circuit Court, Family Court Division (family court), but prepared by an arbitrator. The judgment was signed and entered by the court without independent review. We reverse and remand with directions Appeal No. 2006-CA-001803-MR and Cross-Appeal No. 2006-CA-001827-MR.
The “judgment” appealed in this case was the result of an arbitration procedure employed after the case was commenced in Jefferson Family Court. The parties agreed to the arbitration which was endorsed by the Jefferson Family Court purportedly to expedite adjudication of the parties’ underlying domestic dispute.1

128
SETTLEMENT AGREEMENT
GAY VS. OLDHAM
OPINION DISMISSING
** ** ** ** **
BEFORE:     KELLER, TAYLOR, AND VANMETER, JUDGES.

TAYLOR, JUDGE:    In this case, Earl Gay and James (Jimmy) Gay appeal an order of the Montgomery Circuit Court entered May 15, 2007, denying appellants’ motion to set aside a final order entered April 30, 2007. The April order adjudged that the parties’ settlement agreement entered at trial in June 2006 provided for joint and several liability against appellants, as stated in the judgment which was subsequently entered on July 11, 2006. For the reasons stated, we dismiss this appeal.

The sole issue raised on appeal is whether the parties agreed in their settlement in July 2006 for the total outstanding judgment of $65,000, plus accrued interest, to be joint and several against appellants. In other words, appellants argue that it was the intention of the parties at the time of the settlement that each appellant would only be responsible for one-half of the total judgment plus interest accrued thereon.

129
ATTORNEYS FEES
KINCAID JOHNSON VS. JOHNSON, TRUE & GUARNIERI, LLP
OPINION VACATING AND REMANDING
** ** ** ** ** BEFORE: LAMBERT AND TAYLOR, JUDGES; HARRIS, 1 SENIOR JUDGE.

LAMBERT, JUDGE:    Appellants appeal a single judgment entered simultaneously in two Fayette Circuit Court cases on March 6, 2008, which awarded substantial attorney fees to Appellee, Johnson, True, and Guarnieri, LLP (hereinafter “JTG Law Firm”). Appellant, Central Bank and Trust Company, is the executor and trustee of three primary trusts established by Garvice D. Kincaid, deceased (hereinafter “the Kincaid Trusts”). The remaining Appellants are either beneficiaries of the trusts or advisory committee members that manage these trusts.2    JTG Law Firm represented Appellants, Brett Kincaid and Kevin Kincaid, in litigation against Appellants, Jane K. Johnson and Joan D. Kincaid, individually and as members of the advisory committee. This litigation was ultimately settled, which led the JTG Law Firm to file a motion for award of fees and expenses. After considering the record, counsels’ briefs and counsels’ oral arguments, we hereby vacate the trial court’s March 6, 2008, order granting the JTG Law Firm’s motion for fees and expenses and remand this matter for further proceedings.

132
CRIMINAL
BUTLER VS. COMMONWEALTH
OPINION AFFIRMING
** ** ** ** ** BEFORE: STUMBO, THOMPSON, AND WINE, JUDGES.

THOMPSON, JUDGE: Lakinda Sharee Butler appeals the Fayette Circuit Court’s order affirming the Fayette District Court’s judgment of conviction. For the reasons stated herein, we affirm.

*** In this case, Butler accepted the benefit of an invalid probation order but violated the order and was sent to county jail. Although Butler now contends that her constitutional right to freely travel within the United States was violated by the probation condition, she was required to make this argument at the time the condition was imposed. Id. Rather, she accepted the void probation with the benefit of avoiding jail and, subsequently, violated it. Therefore, Butler’s service of her twelve-month sentence is not a violation of her constitutional rights.

133
CRIMINAL
JONES VS. COMMONWEALTH
OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; THOMPSON, JUDGE; HARRIS,1 SENIOR JUDGE.

THOMPSON, JUDGE: Ryan Jones appeals from an order of the Hardin Circuit Court revoking his probation. The issue presented is whether the circuit court’s failure to continue the probation revocation hearing or, alternatively, grant JoneS “use” immunity unconstitutionally forced him to choose between asserting his right against self-incrimination and his right to present a meaningful and complete defense. Because we conclude that Jones should have been informed that his testimony at his probation revocation hearing could not be used against him at his subsequent criminal trial, we reverse and remand.

135
CRIMINAL
BISHOP VS. COMMONWEALTH
OPINION REVERSING AND REMANDING
** ** ** ** ** BEFORE: ACREE, CAPERTON AND THOMPSON, JUDGES.

CAPERTON, JUDGE: The Appellant, Marlena Bishop, appeals the October 14, 2008, Final Judgment and Order of the Pike Circuit Court, entered following a jury trial and conviction on a charge of first-degree assault, for which Bishop was sentenced to ten years. She also appeals the court’s denial of her motion for new trial under Kentucky Rules of Civil Procedure (CR) 60.02, based on alleged perjury and falsified evidence. On appeal, Bishop argues that the court below erred in admitting voluminous medical records under Kentucky Rules of Evidence (KRE) 803(6) in violation of the authentication requirements, that her due process rights were violated when the Commonwealth failed to timely disclose exculpatory evidence, and that the trial court erred in refusing to grant her motion for mistrial. She also argues that the court erred in denying her motion pursuant to CR 60.02. After a thorough review of the record, the arguments of the parties, and the applicable law, we reverse.

138
STATE CONSTRUCTION PROJECT
BIG SANDY REGIONAL JAIL VS. KENAR ARCHITECTURAL & ENGINEERING, INC.
OPINION AFFIRMING
** ** ** ** **
BEFORE:   LAMBERT AND VANMETER, JUDGES; HARRIS, SENIOR JUDGE.
LAMBERT, JUDGE: Big Sandy Regional Jail Authority d/b/a Big Sandy Regional Detention Center (hereinafter “Jail Authority”) appeals from a summary judgment order entered on December 4, 2008, by the Franklin Circuit Court. In this order, the trial court determined that Kenar Architectural & Engineering, Inc. (hereinafter “Kenar”) was entitled, as a matter of law, to the payment of approximately eighty thousand dollars ($80,000) in fees for the design and development of architectural plans reflecting a proposed expansion of the Jail Authority’s Paintsville detention facility. After careful review, we affirm.

139
DOMESTIC VIOLENCE ORDER, CONTEMPT
BUDDENBERG VS. BUDDENBERG
OPINION AFFIRMING IN PART, VACATING IN PART, AND REMANDING
** ** ** ** ** BEFORE: NICKELL AND WINE, JUDGES; HARRIS, SENIOR JUDGE.

WINE, JUDGE: Everett Buddenberg (“Everett”) appeals from a Domestic Violence Order (“DVO”) entered by the Lau
rel Family Court prohibiting him from any contact with his wife, Tricia Buddenberg (“Tricia”), and their three children. We agree with Everett that there was no evidence that he presented any imminent danger to the children. Hence, we must set aside the portion of the DVO relating to the children. We will not disturb the remaining portions of the DVO. We further find that there was insufficient evidence to support the trial court’s decision to hold Everett in criminal contempt for his violation of a prior Emergency Protective Order (“EPO”). Therefore, we must vacate the contempt order.

143
UNINSURED MOTORIST BENEFITS
BALDWIN VS. DOE
OPINION REVERSING AND REMADING
APPELLEES
** ** ** ** ** BEFORE: CAPERTON AND STUMBO, JUDGES; KNOPF,1 SENIOR JUDGE.
CAPERTON, JUDGE: James Baldwin appeals the Grant Circuit Court’s order of March 19, 2009, granting the motion for summary judgment by State Farm Mutual Automobile Insurance Company. On appeal, Baldwin argues that the trial court erroneously granted the motion for summary judgment. We agree and, accordingly, reverse the order of March 19, 2009, and remand for further proceedings.

The facts that give rise to this appeal are not in dispute. On January 24, 2006, Baldwin was driving his truck on the interstate in Grant County. Baldwin alleges that an unknown driver in a flatbed truck was traveling immediately in front of him when a large tarp flew from the flatbed truck onto Baldwin’s vehicle. Baldwin continued traveling to the next truck stop in order to remove the tarp from his vehicle. As he was dismounting from his truck, Baldwin alleges that he slipped and fell, thereby injuring his back. Baldwin then sought uninsured motorist insurance coverage (UM) through State Farm, alleging his injuries were the result of a hit-and-run from an unknown driver. State Farm denied coverage and Baldwin initiated suit.

Unlike the situation presented in Masler, where an object of unknown origin was propelled by the unidentified vehicle, the facts sub judice involve an object that was attached (albeit insufficiently) to a vehicle that subsequently became dislodged from the unidentified vehicle and impacted Baldwin’s vehicle. It defies logic to think that a vehicle could literally disintegrate into pieces while traveling our highways and neither the owner nor operator thereof would bear liability, but if all the pieces remained together as a whole then liability would attach. We believe that the impact set forth by the facts sub judice was sufficient to satisfy the physical contact required by the “strike” provision in the UM policy. Thus, the trial court erred in its grant of summary judgment.

144
TERMINATION OF PARENTAL RIGHTS
B.(S.B.)  VS.  B.(J.W.)
OPINION REVERSING AND REMANDING
** ** ** ** **

BEFORE: NICKELL AND THOMPSON, JUDGES; GRAVES,2 SENIOR JUDGE.

NICKELL, JUDGE: S.B.B. (Stepfather) has appealed from an order of the Daviess Circuit Court denying his petition to involuntarily terminate the parental rights of J.W.B. (Father) to J.C.B., Father’s minor son, and to adopt the child. The court’s sole reason for denying the petition was Father’s sporadic payment of child support by wage deduction over approximately eight years of the child’s life. After a careful review of the record, we reverse and remand this matter for further proceedings.

145
WORKERS COMPENSATION
GARNO VS. SOLECTRON USA
OPINION AFFIRMING
** ** ** ** ** BEFORE: DIXON, MOORE, AND STUMBO, JUDGES.

MOORE, JUDGE: Susan Garno sustained work-related injuries on October 14, 2002, and January 14 or 15, 2004, while working for Solectron-USA. Garno appeals from part of a January 9, 2009 opinion, order and award of an Administrative Law Judge (ALJ), as affirmed by the Board of Workers’ Claims, resolving a medical fee and expense dispute based upon these injuries in favor of Solectron, as insured by Arrowpoint Capital Corp., formerly Royal & SunAlliance, and St. Paul Travelers. Upon review, we affirm.