COA 2010 Minutes for November 24 , 2010 (Nos. 1108-1125)

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  • Total number of decisions:  182
  • Published Decisions:  4 (1112; 1113; 1114; 1125)

PUBLISHED DECISIONS (with link to full text at AOC):

1114. CRIMINAL PROCEDURE
BRISTOL (CLIFTON GERALD)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)(SENIOR STATUS JUDGE)
TAYLOR (CONCURS) AND HENRY (CONCURS)
2009-CA-001096-MR
TO BE PUBLISHED
HARDIN

LAMBERT, JUDGE: Clifton Bristol was convicted of complicity to commit first- degree possession of a controlled substance; complicity to commit tampering with physical evidence; carrying a concealed deadly weapon; and being a second-degree persistent felony offender. As a result, Bristol was sentenced to seven years in prison. Bristol now appeals as a matter of right. For the reasons set forth herein, we affirm Bristol’s convictions.

NOTE:  The following extract is included as a note on appellate review standards for admissibility or evidence and for granting a directed verdict.

Evidence is only relevant if it has a tendency to make a fact of consequence to the determination of the case more or less probable than it would be without the evidence. KRE 401. See also Kroger Co. v. Willgruber, 920 S.W.2d 61, 67 (Ky. 1996). If the evidence is a “link in the chain” of proof, it is relevant. Turner v. Commonwealth, 914 S.W.2d 343, 346 (Ky. 1996). Further, the decision of whether to admit evidence as more probative than prejudicial is reviewed by appellate courts for an abuse of discretion. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (internal citations omitted). The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. 5 Am.Jur.2d Appellate Review § 695 (1995); cf. Kuprion v. Fitzgerald, 888 S.W.2d 679, 684 (Ky. 1994). * * *

“On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal.” Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991) (citing Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983)). In the instant case, both defendants denied possessing the drugs. Thus, the jury was left in a position where it had to judge the credibility of Bristol and Porter and the weight of the evidence against each of them. Based on the evidence, it would not have been unreasonable for the jury to find that Bristol or Porter, or both, possessed the drugs in question. Accordingly, the trial court properly overruled Bristol’s motion for a directed verdict.

1115.  Statutory construction.  Right of shareholder to corporate documents.
CARDIOVASCULAR SPECIALISTS, P.S.C.
VS.
NICHOLAOS XENOPOULOS, M.D.
OPINION VACATING AND REMANDING
KELLER (PRESIDING JUDGE)
STUMBO (CONCURS) AND MOORE (CONCURS IN RESULT ONLY)
2009-CA-001442-MR
TO BE PUBLISHED
JEFFERSON

KELLER, JUDGE: This is an appeal from an order of the Jefferson Circuit Court directing Cardiovascular Specialists, P.S.C. (Cardiovascular Specialists) to provide one of its shareholders, Nicholaos Xenopoulos, M.D. (Dr. Xenopoulos), with certain documents and information. For the following reasons, we vacate and remand.

* * * Cardiovascular Specialists did not provide Dr. Xenopoulos with these additional documents. On May 13, 2009, Dr. Xenopoulos filed a Verified Petition For Order Enforcing Shareholder’s Right of Inspection in the Jefferson Circuit Court, and on June 23, 2009, Dr. Xenopoulos filed a Motion for Order Compelling Inspection of Corporate Records. On July 13, 2009, the trial court entered an order granting Dr. Xenopoulos’s motion and directing Cardiovascular Specialists to provide Dr. Xenopoulos with the requested documents within twenty days from the date the order was entered. The trial court did not make any findings or provide any reasoning for its decision in its order. This appeal followed.

NOTE:  The following extract is provided re review of matters regarding statutory construction.

STANDARD OF REVIEW Matters of statutory construction are subject to de novo review and
this Court is not bound by the trial court’s interpretation. Halls Hardwood Floor Co. v. Stapleton, 16 S.W.3d 327, 330 (Ky. App. 2000).    However, when there are questions of fact, or mixed questions of law and fact, we review the trial court’s decision pursuant to the clearly erroneous standard. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). Under this standard, this Court will only set aside the findings of fact of the trial court if those findings are clearly erroneous. The dispositive question is whether the findings are supported by substantial evidence. Id.

1116. COURTHOUSE ACTS; LOCATION OF COUNTY SEAT.
NOLAN (TIMOTHY), ET AL.
VS.
CAMPBELL COUNTY FISCAL COURT , ET AL.
OPINION REVERSING IN PART AND AFFIRMING IN PART
ACREE (PRESIDING JUDGE)
HARRIS (CONCURS)(SENIOR STATUS JUDGE) AND NICKELL (DISSENTS IN PART AND FILES SEPARATE OPINION)
2009-CA-001507-MR
2009-CA-001589-MR
TO BE PUBLISHED
CAMPBELL

ACREE, JUDGE: The Appellants, Timothy and Julia Nolan, seek reversal of the Campbell Circuit Court’s order granting partial summary judgment to the Appellees, the Campbell County Fiscal Court and other Campbell County officials (hereinafter referred to collectively as the “Fiscal Court”). The Nolans allege that the circuit court erred when it declined to order the offices of the Campbell County Clerk, Property Valuation Administrator (PVA), and Sheriff to be located solely in Alexandria, Kentucky, at the Alexandria Courthouse. In addition to requesting that this court order those offices to be located in Alexandria, they also insist that the Campbell County Courthouse must be located in Alexandria. The Nolans also ask this court to find that the Fiscal Court may not spend funds collected via the court fee tax. Further, they aver that ordinances adopted by the Fiscal Court are void because notice regarding the ordinances was insufficient and the ordinances were improperly drafted. However, the Nolans agree with the circuit court’s conclusion that Alexandria is the county seat of Campbell County. The Fiscal Court cross- appeals on this issue asserting that Newport is also a county seat. We affirm the circuit court’s decision to dismiss the Nolans’ claims and reverse the court’s determination that Newport is not a county seat.

1125.  FAMILY LAW.  PRIMARY RESIDENTIAL PARENT DETERMINATION.
CASKEY (JESSE J.)
VS.
CASKEY (JESSICA L.)
OPINION REVERSING AND REMANDING
MOORE (PRESIDING JUDGE)
LAMBERT (CONCURS) AND NICKELL (CONCURS)
2010-CA-000667-ME
TO BE PUBLISHED
WOLFE

MOORE, JUDGE: Jesse Caskey, Jr. (the father) appeals the Wolfe Circuit Court’s order denying his motion which in substance sought to make him the primary residential parent of his daughter (Z.C.) and a subsequent order denying his motion to reconsider. After careful review, we reverse.

CIVIL, TORTS, INSURANCE CASES: [BELOW THE FOLD]


1121
VOGES (MARK), ET AL.
VS.
FULMER (TIMOTHY)
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
LAMBERT (CONCURS) AND HENRY (CONCURS)
2009-CA-002254-MR
NOT TO BE PUBLISHED
OWEN

CLAYTON, JUDGE: This is an appeal of a decision of the Owen Circuit Court finding appellant Mark Voges’s removal of money from an account owned jointly with his spouse, appellant Shauna Voges, was in violation of KRS 378.010. For the reasons that follow, we affirm the decision of the trial court.

KRS 378.010 provides, in relevant part, as follows:
Every gift, conveyance, assignment or transfer of, or charge upon, any estate, real or personal, or right or thing in action . . . made with the intent to delay, hinder or defraud creditors, purchasers, or other persons, . . . or . . . evidence of debt given, action commenced or judgment suffered, with like intent, shall be void against such creditors[.]

NOTE:  Stanard of review of findings of fact and issues of law:

STANDARD OF REVIEW Finding of fact by a trial court are reviewed under a clearly erroneous
standard. Moore v. Asente, 110 S.W.3d 336 (Ky. 2003). Conclusions of law made by the trial court, however, are reviewed under a de novo standard. Gosney v. Glenn, 163 S.W.3d 894 (Ky. App. 2005). With these standards in mind, we examine the findings and conclusions of the trial court.

1122. WORKERS COMP
MOORE (JESSIKA)
VS.
PIZZA HUT, INC. , ET AL.
OPINION AFFIRMING
CAPERTON (PRESIDING JUDGE)
LAMBERT (CONCURS) AND NICKELL (CONCURS)
2009-CA-002387-WC
NOT TO BE PUBLISHED
WORKERS' COMP

 

1123.  DEFAMATION
SAMS (DARRELL), ET AL.
VS.
WAL-MART STORES, EAST
OPINION AFFIRMING
MOORE (PRESIDING JUDGE)
LAMBERT (CONCURS) AND STUMBO (CONCURS)
2010-CA-000007-MR
NOT TO BE PUBLISHED
LAUREL