Breathitt County Courthouses Using a “PostCard” Effect. Photo by Mike Stevens
The Kentucky Court of Appeals announced 27 decisions on Oct. 17, 2014, with nine (yes! I said nine) opinions designated to be published. With this many published decisions, I am going to have to do a bullet list:
- 918. Government Employment. State trooper’s employment termination for misconduct reversed circuit court.
Kentucky State Police vs. James Conder
COA Published; Franklin County 10/17/2014 Opinion by J. Vanmeter Reversing and Remanding - 922. Civil Rights. Affirmed summary judgment dismissing claims of sexual harassment against county under Ky Civil Rights Act
Tammy Gray vs. Kenton County, Kentucky
COA Published; Kenton County 10/17/2014 Opinionby J. Vanmeter Affirming - 925. Criminal. Trial Court failed to comply with IAD (Interstate Agreement on Detainers) by failing to dispose of case (dismiss) prior to returning defendant to Indiana
Perry Michael Scroggins vs. Commonwealth of Kentucky
COA Published; Daviess County 10/17/2014; Opinion by J. Clayton Reversing and Remanding - 928. Criminal. RCr 11.42. Ineffective assistance of Counsel denied re counsel’s opening the door to admission of hearsay, not requiring Commonwealth to prove he did not act under EED, and not offering alternative perp defense
Charles Logan vs. Commonwealth of Kentucky
COA Published; Carter County 10/17/2014; Opinion by J. Lambert Affirming - 930. Prevailing wage law. Affirmed trial court’s denial of motion to vacate award of prejudgment interest, back wages, and penalties.
Teco Mechanical Contractor, Inc. vs. Commonwealth of Kentucky
COA Published; Franklin 10/17/2014; Opinion by J. Combs Affirming - 931. Family Law. Affirmed father’s motion to modify visitation/timesharing and to prohibit mother from relocating to Mississippi with two minor children
G.(A.) vs. B.(T.)
COA Published 10/17/2014; Jefferson; Opinion by J. Vanmeter Affirming - 935. Family Law. Affirmed denial of father’s motion to modify child support claiming decrease in income and child’s age of 4.
Alvie Deray Shelton vs. Jia Anna-Maria Shelton
COA Published 10/17/2014; Henderson; Opinion by J. Lambert Affirming - 936. Family Law. Held family court improperly determined it had jurisdiction in custody matter (Ky not home state; not meet de facto custodian standard; and thus erroneously retained jurisdiction)
Huong Luu vs. Shelly MUrphy
COA Published 10/17/2014; Boyd County; Opinion by J. Lambert Reversing and Remanding - 938. Family Law. Family Court never addressed fitness of sole custodian (mother) who objected to visitation and never applied the “modified best interest” standard in grandparent visitation
Karen Waddle vs. Thomas Waddle
COA Published 10/17/2014; Floyd County; Opinion by J. Clayton Reversing and Remanding
“Continue reading” for the Tort Report and a complete copy of this week’s minutes of ALL decisions with links to their full text.
The Tort Report – Selected decisions this week on tort, insurance and civil law (None this week).
916. Jurors. Held plaintiff’s failed to preserve claim of jury bias for appeal
Kyle Gore vs. Double D Bar LLC
COA Not published 10/17/2014 (McCracken County)
Opinion by J. Clayton Affirming
The Gores argue that the court made it clear that it would only strike jurors for cause if they explicitly stated that they could not follow the law. The Appellees argue that the Gores did not preserve their jury challenges and, therefore, this issue may not be considered on appeal.
In Kentucky, in order to preserve for appeal a claim of juror bias, the party must, at the time of the peremptory challenges, use a peremptory challenge on the juror whom the trial court refused to remove for cause. King v. Commonwealth, 276 S.W.3d 270, 279 (Ky. 2009). The appealing party must also indicate on his strike sheet the potential jurors he would have removed through the use of his peremptory challenge had the court struck the jurors for cause. Gabbard v. Commonwealth, 297 S.W.3d 844, 854 (Ky. 2009). Finally, the jury panel member who would have been struck must be seated as a juror. Id. In Grubb v. Norton Hospitals, Inc., 401 S.W.3d 483 (Ky. 2013), the court held that the requirements of Gabbard (which followed Shane v. Commonwealth, 243 S.W.3d 336 (Ky. 2007)), are applicable in civil cases.
In the present case, the Gores did not identify on their strike sheets specific jurors that would have been removed with peremptory challenges had the jurors which they contend should have been struck for cause remained on the jury panel. In Gabbard, the court held that “[i]n order to complain on appeal that he was denied a peremptory challenge by a trial judge’s erroneous failure to grant a for-cause strike, the [party] must identify on his strike sheet any additional jurors he would have struck.” Id. The Gores failed to preserve the issue of the allegedly erroneous conduct on the trial court in failing to remove certain jurors for cause. The judgment of the trial court is affirmed.
924. Government Immunity. TARC denied quasi-governmental immunity but prevailed on dismissal of punitive damage claims.
Transit Authority of River City vs. Jonathan Taylor
COA Not Published from Jefferson County. Opinion by J. Vanmeter Affirming.
929. Law firm awarded damages in breach of contract claim against client.
Edward Vaughn vs. Zoppoth Law Firm
COA Not Published out of Jefferson County with J. Combs Affirming.
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