COA 2011 Minutes for July 22, 2011 — Nos. 675-699 (25 decisions; 6 published)

COA 2011 Minutes for July 22, 2011 —  Nos. 675-699 (25 decisions; 6 published)

675. CRIMINAL PROCEDURE.  INEFFECTIVE ASSISTANCE OF COUNSEL
HARRIS (LEONDO)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
CAPERTON (CONCURS) AND KELLER (CONCURS)
2008-CA-001342-MR
TO BE PUBLISHED
JEFFERSON

LAMBERT, JUDGE: This case comes before this Court on remand from the Supreme Court of Kentucky for further consideration in light of that Court’s recent decision in Hollon v. Commonwealth, 334 S.W.3d 431 (Ky. 2011). After careful review, we hold that Harris’s appellate counsel was not ineffective under Hollon.

Initially, we affirmed the trial court’s denial of Harris’ RCr 11.42 motion, holding that his claims had already been presented in his direct appeal to the Kentucky Supreme Court. Further, we held that the claims the Supreme Court reviewed for palpable error did not amount to ineffective assistance of counsel (IAC). Finally, we declined to review his claims for ineffective assistance of appellate counsel (IAAC) because at the time the opinion was rendered, that was not a cognizable claim in this jurisdiction pursuant to Hicks v. Commonwealth, 825 S.W.2d 280 (Ky. 1992). However, on April 21, 2011, the Supreme Court rendered Hollon v. Commonwealth, supra, overruling Hicks. The Court ruled that the time had come for recognition of IAAC claims premised upon appellate counsel’s alleged failure to raise a particular issue on direct appeal.

676.  CRIMINAL LAW.  OPEN CONTAINERS.
HADAWAY (IRA PAUL)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
DIXON (CONCURS) AND LAMBERT (CONCURS)
2009-CA-001625-DG
TO BE PUBLISHED
TRIGG

VANMETER, JUDGE: Ira Hadaway appeals from the Trigg Circuit Court opinion affirming the Trigg District Court judgment after a jury found him guilty of possession of an open alcohol beverage container in a motor vehicle and driving under the influence of alcohol (“DUI”). For the following reasons, we affirm.

On appeal, Hadaway argues that the results of the breath alcohol test should have been suppressed because (1) he was not observed pursuant to 500 KAR 8:030 and (2) the maintenance log was not introduced to prove that the test machine was functioning properly and producing accurate results. Therefore, Hadaway maintains that his conviction for DUI should be reversed. We disagree.

685.  TORTS.  EXPERT TESTIMONY.
BUCKLER (DONALD W.)
VS.
MATHIS (TERRI L.)
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
KELLER (CONCURS) AND SHAKE (CONCURS)
2010-CA-000828-MR
TO BE PUBLISHED
HENRY

LAMBERT, JUDGE: This is an appeal from a defense verdict in a personal injury action following a jury trial. Donald W. Buckler, the plaintiff below, contends that he is entitled to a new trial due to errors concerning the jury instructions and due to the striking of a portion of his treating physician’s deposition. Having carefully reviewed the record and the applicable caselaw, we affirm.

Pertaining to this appeal, on May 26, 2009, Mathis objected to portions of the deposition of treating physician Dr. Robert Jacob taken by Buckler on February 20, 2009. Mathis contended that Buckler’s questioning of Dr. Jacob regarding the permanency of his injuries improperly asked him to assume information that was not in evidence regarding physical therapy and was speculative in nature. In response to the question, Dr. Jacob indicated that he would have to verify the information concerning Buckler’s current condition by physical examination. In response and in addition to addressing the merits of the objection, Buckler argued that Mathis’s objection was untimely and that Mathis failed to object during the deposition.

At the close of evidence, Mathis moved for a directed verdict on whether Buckler had met the $1,000 threshold pursuant to KRS 304.39-060(2)(b), arguing that Buckler failed to prove that the medical bills he incurred were for treatment he underwent related specifically to the motor vehicle accident. Although it denied Mathis’s motion for directed verdict, the trial court included the threshold instruction over Buckler’s objection. In addition to objecting to the instruction itself, Buckler also objected to specific language in the instruction that required the jury to find that Buckler himself had incurred the charges for the medical care.
After a short deliberation, the jury returned a verdict in favor of Mathis, having found that Buckler had not met the $1,000 threshold. The trial court entered a judgment dismissing Buckler’s claim on November 12, 2009. Buckler then filed a motion for a judgment notwithstanding the verdict or for a new trial. He argued that the trial court improperly instructed the jury by including the threshold question and by using incorrect language in that instruction. Buckler also argued that the trial court improperly commented on the instructions, placing a negative inference on the proof. Finally, Buckler argued that the trial court should not have disallowed Dr. Jacob’s testimony regarding permanency. The trial court denied this motion on April 23, 2010, specifically stating that it was within the province of the jury to determine whether the medical expenses were reasonably needed and that its comments related to the instructions were only meant to assist the jury in navigating the instructions. This appeal follows.

Buckler contends that because the medical expenses he submitted totaled $2901.90, far in excess of the $1,000 threshold, and Mathis failed to call any witnesses to question the relationship between the bills and the collision, the trial court should not have included this interrogatory in the instructions.
Mathis, in turn, contends that Buckler was unable to establish a causal connection between all of the submitted medical bills and the motor vehicle accident. And while she did not call separate witnesses on this issue, Mathis states that she was able to establish this lack through the testimony of both Buckler and Dr. Jacob. Mathis points out that the medical records showed that Buckler had a prior injury to his right index finger, one that he did not report to his treating physicians, and that he was referred to Dr. Jacob for treatment related to Raynaud’s disease in his left hand, which was unrelated to the motor vehicle accident. We agree with Mathis that, based upon Buckler’s testimony as well as the medical records and proof related to prior or unrelated injuries or conditions, the trial court did not commit any error in including the threshold question in the jury instructions regarding whether the medical expenses were reasonably needed as a result of the motor vehicle accident.

Third, Buckler contends that the trial court improperly commented on the instructions as they were read to the jury. In doing so, he states that the trial court placed a negative inference by way of voice inflection on what the jury should ultimately find.  Based on our review of this issue, we agree with Mathis that the trial court did not do or say anything to influence the jury to find one way or the other. The trial court did not provide any legal explanation of the instructions, but merely attempted to educate the jury as to what it should do in relation to completing the instructions and verdict forms depending on what findings it made.

The trial court based its ruling striking the testimony regarding Dr. Jacob’s qualification of his opinion on permanency to the performance of a current physical examination. In fact, because of its delay in ruling, the trial court opted to continue the trial to specifically permit Buckler to take additional testimony from Dr. Jacob regarding permanency. That Buckler was unable to schedule a physical examination and re- depose Dr. Jacob prior to the new trial date is of no course, especially as Buckler had known of the basis of Mathis’s objection for several months prior to the entry of the ruling. Therefore, the trial court’s ruling striking portions of Dr. Jacob’s testimony regarding the permanency of Buckler’s injuries was not an abuse of discretion.

688. GOVERNMENT DISABILITY RETIREMENT BENEFITS.
BOARD OF TRUSTEES OF THE KENTUCKY RETIREMENT SYSTEMS
VS.
HAYWOOD (LINDA)
OPINION VACATING AND REMANDING
KELLER (PRESIDING JUDGE)
DIXON (CONCURS IN RESULT ONLY) AND VANMETER (CONCURS IN RESULT AND FILES SEPARATE OPINION)
2010-CA-001204-MR
TO BE PUBLISHED
FRANKLIN

KELLER, JUDGE: The Board of Trustees of the Kentucky Retirement Systems (the Board) appeals from the circuit court's order reversing the Board's finding that Linda Haywood (Haywood) did not qualify for disability retirement benefits. On appeal, the Board argues that Haywood failed to file exceptions to the hearing officer's recommended order, thus failing to preserve any issues for review; that the circuit court inappropriately relied on evidence outside the record in reversing the Board; that the circuit court impermissibly shifted the burden of proof from Haywood to the Board; that the circuit court incorrectly stated that the Board did not consider Haywood's medical proof as objective evidence; and that the circuit court inappropriately substituted its findings for the Board's. Haywood argues to the contrary and asserts that the Board has a fiduciary duty to her, which it violated. Furthermore, Haywood argues that the Board's role as both fiduciary and fact-finder creates an impermissible and incurable conflict of interest. Having reviewed the evidence and the arguments of the parties, we vacate, reverse, and remand.

694.  REAL PROPERTY. CONDOMINIUMS, BYLAWS.
TARIQ (RAAEFIA), ET AL.
VS.
WORTHINGTON GLEN COUNCIL OF CO-OWNERS, INC.
OPINION VACATING AND REMANDING
COMBS (PRESIDING JUDGE)
LAMBERT (CONCURS) AND SHAKE (CONCURS)
2010-CA-001610-MR
TO BE PUBLISHED
JEFFERSON

COMBS, JUDGE:    Raaefia, Afia, Shafia, and Hussain Tariq appeal the judgment of the Jefferson Circuit Court which held that they violated provisions of the Bylaws of Worthington Glen Condominiums. The trial court granted Worthington Glen’s requests for injunctive relief and for attorneys’ fees. After our review, we vacate the judgment.

Although the Tariqs present several arguments, we believe that one is dispositive. The Tariqs contend that the trial court erred in determining that the amendment to the Bylaws was both proper and controlling. We agree.

We first note that the trial court found that the amendment had been properly enacted without reference to supporting evidence, explanation, or elaboration. We have closely examined Worthington Glen’s Master Deed (also referred to as the Declaration) and its Bylaws. As Worthington Glen correctly observes, Article 12, Section 7 of the Master Deed directs that “[a]ll leases are subject to all provisions of the Declaration, the Bylaws and the Rules and Regulations.” Worthington Glen is also correct in noting that Article 11, Section 5 of the Bylaws allows for amendment of the Bylaws by the consent of 51% of the owners.
However, this provision is in conflict with Article 17, Section 2(f)(ii)(K) of the Master Deed, which requires that amendments relating to leasing must be approved by 67% of the owners and 51% of mortgage holders.

We have scoured Kentucky case law for precedent, but this case appears to be one of first impression in the Commonwealth. However, several other jurisdictions have rejected amendments to bylaws that were made without the proper percentage of owner approval. See Lake Arrowhead Chalets Timeshare Owners Ass’n v. Lake Arrowhead Chalets Owners Ass’n, 59 Cal. Rptr.2d 875 (Cal. Ct. App. 1996); Tower House Condominium, Inc. v. Millman, 410 So.2d 926 (Fla. Dist. Ct. App. 1981); Kaplan v. Boudreaux, 573 N.E.2d 495 (Mass. 1991); Bd. of Managers of Village View Condominium v. Forman, 78 A.D.3d 627 (N.Y. App. Div. 2010).

Because the amendment to the Bylaws is invalid, Worthington Glen has failed to state a cause of action against the Tariqs. All other arguments alleging trial error are, therefore, moot. We vacate the order of the Jefferson Circuit Court and remand for an order dismissing this lawsuit.

695.  FAMILY LAW.  CHILD CUSTODY, VISITATION.
MEEKIN (DAWN)
VS.
HURST (DOUGLAS)
OPINION AFFIRMING
SHAKE (PRESIDING JUDGE)
DIXON (CONCURS) AND NICKELL (CONCURS)
2010-CA1-00164-ME
TO BE PUBLISHED
MCCRACKEN

SHAKE, SENIOR JUDGE: Dawn Meekin (Dawn) appeals from a McCracken Circuit Court order that denied her petition for primary residential custody of her minor daughter, Ashton. On October 10, 2006, Dawn and her former husband, Douglas Hurst (Doug), entered into a mediation agreement that designated Doug as Ashton’s primary residential custodian. The agreement further provided, “. . . the parties agree that after two years, absent a showing of serious endangerment to the child, the wishes of the child as to where she wants to primarily reside shall create a presumption of what is in her best interests.” On appeal, Dawn claims that the court erred by disregarding the presumption created by the mediation agreement. With regard to visitation/timesharing modification, a circuit court must consider the “best interests of the child” in light KRS 403.320(3). The trial court conducted a thorough analysis concluding Ashton’s best interests were for her to continue to live primarily with Doug. Therefore, the McCracken Circuit Court modification order is affirmed.

TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

IF YOU WANT

• WORKERS COMPENSATION LAW UPDATES, I RECOMMEND YOU GO TO THE COMP ED WEB SITE AT http://www.comped.net/.
• FAMILY LAW UPDATES, I RECOMMEND YOU GO TO Diana Skaggs' Divorce Law Journal at http://www.divorcelawjournal.com

687. TORTS. FELA.
ADKINS (JOHN L.)
VS.
CSX TRANSPORTATION, INC.
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
ISAAC (CONCURS) AND THOMPSON (CONCURS IN RESULT ONLY)
2010-CA-001139-MR
NOT TO BE PUBLISHED
PERRY

To succeed on a FELA negligence claim, a plaintiff is required to plead and prove the common law elements of duty, breach, foreseeablity and causation. Van Gorder v. Grand Trunk W. R.R., Inc., 509 F.3d 265 (6th Cir. 2007). Although we agree with Adkins that FELA relaxes the standard of proof regarding causation, it does not lessen the burden to prove the elements of negligence. “[A] plaintiff cannot benefit from FELA’s relaxed causation standard unless he can  prove that the employer was negligent in the first place . . . .” Id. at 271. “FELA claims, like common law negligence claims, must be supported by expert testimony where they involve issues . . . beyond the common experience and understanding of the average jury.” In re Amtrak Sunset Ltd. Train Crash in Bayou Canot, Ala. on Sept. 22, 1993, 188 F.Supp.2d 1341, 1349 (S.D. Ala. 1999).
Whether expert testimony is required in a given case is squarely within the trial court’s discretion. Keene v. Commonwealth, 516 S.W.2d 852, 855 (Ky. 1974). Absent an abuse of discretion, we will not disturb the trial court's ruling. Baptist Healthcare Systems, Inc. v. Miller, 177 S.W.3d 676, 680-81 (Ky. 2005). Because the “business of operating a railroad entails technical and logistical problems with which the ordinary layman has had little or no experience[,]” Bridger v. Union Ry. Co., 355 F.2d 382, 389 (6th Cir. 1966), the failure to provide expert testimony regarding the applicable standard of care is fatal to Adkins’ claims. We do not believe that a lay juror would possess sufficient knowledge of the working conditions of a railyard to independently determine whether CSXT put Adkins at an unreasonable risk of cumulative trauma injury. Likewise, and contrary to Adkins’ contention, the record does not contain sufficient facts to permit an inference that CSXT knew or should have known that the risk of injury posed by the conditions of its railyard was unreasonable. Therefore, we hold the trial court did not abuse its discretion in holding Adkins was required to present expert testimony regarding the applicable standard of care and that CSXT breached that duty, and his inability to do so precluded his ability to establish a prima facie case of negligence. There was no abuse of discretion and the trial court correctly dismissed Adkins’ claims.
Finally, because of our holding on the negligence issue, we believe Adkins’ arguments regarding the impropriety of the trial court’s grant of summary judgment as to his knee injury are moot. We also believe the trial court’s reliance on CSXT’s allegations of a prior recovery for the same injury and violations of the applicable statute of limitations were mere surplusage, without which the grant of summary judgment would still be proper. Therefore, no further discussion of Adkins’ arguments is warranted.
affirmed.
For the foregoing reasons, the judgment of the Perry Circuit Court is

NICKELL, JUDGE: John L. Adkins has appealed from the Perry Circuit Court’s entry of summary judgment in favor of CSX Transportation, Inc. (CSXT) in his action for personal injuries arising from his employment. After a careful review of the law, the record and the briefs, we affirm.

692.  TORTS.  SCHOOLS. IMMUNITY.
DECK (VALESA)
VS.
NOBLE (TINA)
OPINION REVERSING AND REMANDING
DIXON (PRESIDING JUDGE)
STUMBO (CONCURS) AND VANMETER (CONCURS)
2010-CA-001357-MR
NOT TO BE PUBLISHED
KNOTT

DIXON, JUDGE: Valesa Deck appeals from an interlocutory order of the Knott Circuit Court denying her motion for summary judgment based on qualified official immunity. Because we conclude Deck is entitled to judgment as a matter of law, we reverse and remand.