Marcum’s murder was the most famous of a string of killings associated with the disputed election of Breathitt County Judge James Hargis in 1898. Hargis and his brother Alexander, both businessmen, had decided to go into politics and run for office as Democrats in 1898, James as County judge and Alex as state Senator. Another like-minded businessman, Ed Callahan, ran for Sheriff. This raised concerns for many of the people of the county. Both Republicans and Democrats decided to get together to oppose the elections of the Hargis brothers and Callahan. They formed what they called the Fusionist party and put up their own candidates. In spite of this strong opposition, the Hargis brothers were elected. Election tampering was suspected. Marcum, a father of five, had tried to keep out of the local disputes as he was able, but he could not avoid his responsibilities as an attorney. The Fusionists brought a suit to call into question the legitimacy of the election and hired Marcum to be their attorney. They lost.
Two published decisions. A contentious discovery disputed resulted in several reversals of the limitations placed upon expert testimony at trial following untimely disclosures, denial of a trial continuance, and failure to admit records that were self-authenticating in Zewoldi vs. Transit Authority of River City. In the second published decision, the granting of a motion to suppress blood alcohol results was reversed on appeal – Commonwealth of Kentucky vs. Brown.
Two non published decisions in the torts and personal injury area.
In Proctor vs. Estate of Roy Floyd Proctor, it was found there was no undue influence, fraud and exploitation. of the decedent in setting up trust before his death. And in Estate of Eric Young vs. ISP Chemicals, the up the ladder defense and exclusive remedy provision of the workers compensation act were applied in affirming a summary judgment in favor of the contractors.
COA DECISIONS DESIGNATED FOR PUBLICATION:
367. Torts. Expert testimony, continuance, self-authenticated employee and medical records, and punitive jury instructions
Zewoldi vs. Transit Authority of River City
Opinion Affirming in Part, reversing in part, remanding (Jefferson Cir. Ct)
Jury returned defense verdict on personal injury claim in favor or Defendant TARC and its employee. Plaintiff/appellant passenger in bus raised on appeal that the trial court improperly excluded expert witness testimony and documentary evidence, abused its discretion in failing to grant a continuance, and failed to give a jury instruction as to punitive damages.
On continuance issue, COA found that the trial court acted arbitrarily in limiting the testimony of Zewoldi’sexpert witness for untimely disclosure while at the same time failing to limit thetestimony of the Appellees’ expert witness whose untimely disclosure was even more severe.
The trial court also abused its discretion by not admitting self-authenticated medical records of plaintiff and employee records of defendant driver. “In failing to apply the exception, the trial court abused its discretion in that its ruling was not based on the sound legal principles announced in Matthewsand Young v. J.B. Hunt.”
Whether a court should grant a continuance is matter of discretion which depends on its evaluation of a series of factors: 1) the length of the delay; 2) whether the court has granted previous continuances; 3) whether a continuance would result in inconveniences to counsel, witnesses, or the court; 4) whether the delay is purposeful or caused by the accused; 5) availability of competent alternative counsel; 6) the complexity of the case; and 7) whether denial of the continuance would cause identifiable prejudice. Guffey v. Guffey, 323 S.W.3d 369, 371 (Ky. App. 2010)(quoting Snodgrass v. Commonwealth, 814 S.W.2d 579, 581 (Ky. 1991), overruled on other grounds by Lawson v. Commonwealth, 53 S.W.3d 534 (Ky. 2001)).
The trial court’s written order did not reflect an analysis of thesefactors. But, even had the trial court included an analysis of those factors, the ruling would still be indefensible. The prejudice to Zewoldi is not only identifiable, it is undeniable. Basic discovery requests remained outstanding, witnesses had yet to be deposed, and the Appellees had yet to even identify some of the witnesses it would later call to give trial testimony. The only factor conceivably justifying the denial of the continuance would the inconvenience to the witnesses and the trial court, but this inconvenience does not outweigh the competing interest of avoiding significant prejudice to Zewoldi.
On the request for a punitive damages instruction, where there is no evidence of record from which the jury might conclude a plaintiff is entitled to punitive damages, the trial court is under no obligation to instruct the jury as to the option to award them. The trial court, after having heard the evidence, determined that to have been the case here. Under Sargent, we must defer to the trial court’s factual determinationas to the evidence presented before it. We, therefore, cannot conclude that the trial court abused its discretion in refusing to instruct the jury on punitive damages.
374. Criminal Law. Express consent given to blood sample given by defendant.
Commonwealth of Kentucky vs. Brown
Opinion reversing and remanding. Franklin Cir. Ct.
COA reversed trial court’s suppression of the results of blood alcohol testing.
Selected cases that were not designated for publication in tort, insurance and civil law.
368. Trusts. Undue influence, fraud and exploitation.
Proctor vs. Estate of Roy Floyd Proctor
Opinion affirming trial court finding that there was no undue influence, fraud and exploitation. of the decedent in setting up trust before his death.
382. Tort Defenses. Workers Comp’s exclusive remedy and up the ladder were successfully applied in summary judgment.
Estate of Eric Young vs. ISP Chemicals
Opinion Affirming. Marshall Cir Ct.
COA affirmed summary judgment in favor of Appellees, Ashland, Inc., and ISP Chemicals LLC, holding the Appellees are up-the-ladder contractors who are entitled to the exclusive remedy protection afforded by the KentuckyWorkers’ Compensation Act — KRS1 Chapter 342 (the Act).
++++++++++++++++++++++++++++
You will find the complete list of this week’s decisions below with number, names of parties, case number, lower court (eg., county), etc. with a hot link to the full text of the decision (published and not to be published). See explanatory note following PDF of the decisions below.
NOTE: You will have to check Case Information for each decision for finality (if not already marked on first page of decision after publication), amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky. Click Court of Appeals Minutes for entire listing of weekly minutes.
All decisions regardless of publication are posted and can be read, but those decisions designated not for publication cannot be cited as legal authority. See, KRCP 76.28(4)(c)(“Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.”)
