December 16, 2011 COA Minutes — Nos. 1131-1141 (21 decisions; 7 published)

December 16, 2011 COA Minutes — Nos. 1131-1141 (21 decisions; 7 published)

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PUBLISHED DECISIONS OF COA:

1131. CRIMINAL LAW
JACKSON (CHARLES)
VS.
COMMONWEALTH OF KENTUCKY
OPINION REVERSING AND REMANDING
LAMBERT (PRESIDING JUDGE)
CAPERTON (CONCURS) AND KELLER (CONCURS)
2010-CA-000508-MR
TO BE PUBLISHED
KENTON

LAMBERT, JUDGE: Charles Jackson, II (hereinafter Jackson) appeals directly from the Kenton Circuit Court’s final judgment of conviction for second-degree burglary for which he received a sentence of five years’ imprisonment. After careful review, we reverse and remand.

In the instant case, the Commonwealth clearly opened the door when it asked Jackson whether he had ever wandered off after a seizure. Thus on redirect, Jackson was permitted to explain or give reasons for his conduct. While we are cognizant that “the door does not swing off its hinges to permit irrelevant and prejudicial testimony” on redirect, we simply cannot say that Jackson’s description of his conduct after a seizure was irrelevant or prejudicial. See State ex rel Missouri Highway and Transp. Comm’n v. Sturmfels Farm Ltd. Partnership, 795 S.W.2d 581, 589 (Mo. Ct. App. 1990) (internal quotations and citation omitted). Jackson’s defense to the crimes charged was that he suffered a seizure, became confused, and wandered into the wrong house. Without doubt, the fact that Jackson had suffered the same side-effect after a seizure on a previous occasion was relevant and probative. We agree with Jackson that it went to the heart of his defense as well as to his credibility. The jury should have been permitted to consider whether, given Jackson’s history of seizures, the same thing occurred in this case.
Jurors are “entitled to have the benefit of the defense theory before them so that they c[an] make an informed judgment as to the weight to place” on the evidence. Davis v. Alaska, 415 U.S. 308, 317, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). A defendant’s due process rights involve “the right to a fair opportunity to defend against the State’s accusations” and to “confront and cross-examine witnesses and to call witnesses in one’s own behalf[.]” Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). The trial court erred to Jackson’s substantial prejudice and denied him the right to present his defense when it improperly excluded his testimony on redirect examination.

Citing James v. Churchill Downs, Inc., 620 S.W.2d 323 (Ky. App. 1981), NLC also maintains that a common-law claim may not be repealed by implication, and that the statutory intent to abrogate the common law must be clearly apparent. It contends that because the General Assembly failed to expressly repeal in the statutory language the common-law claim of breach of fiduciary duty, such a claim necessarily remains viable. And, lastly on this issue, NLC argues that, in rejecting the common-law claim of breach of fiduciary duty, the circuit court improperly failed to abide by Kentucky Supreme Court precedent which established or otherwise recognized the common-law claim of breach of fiduciary duty.

Accordingly, because the trial court abused its discretion in excluding Jackson’s testimony about his conduct after prior seizures, we reverse and remand this case for a new trial.

1132. TORTS. BREACH OF FIDUCIARY DUTY.
THE NEW LEXINGTON CLINIC
VS.
COOPER (GREGORY), ET AL.
OPINION REVERSING AND REMANDING
STUMBO (PRESIDING JUDGE)
CLAYTON (CONCURS) AND THOMPSON (CONCURS IN RESULT ONLY)
2010-CA-001128-MR
2010-CA-001129-MR
2010-CA-001182-MR
2010-CA-001183-MR
TO BE PUBLISHED
FAYETTE

STUMBO, JUDGE: The New Lexington Clinic (“NLC”) appeals from an order and judgment of the Fayette Circuit Court sustaining the summary judgment motion of Dr. Michael McKinney, et al. NLC alleged that Dr. McKinney and other physicians, while serving as board members of NLC, breached their fiduciary duties to the clinic by executing a plan to take their employment and the employment of support staff to Baptist Healthcare System, Inc. and Baptist Physicians Lexington, Inc. (collectively referred to hereinafter as the “Baptist defendants”). NLC also alleged that the Baptist defendants tortiously interfered with NLC’s employment contracts by facilitating and promoting the physicians’ relocation from NLC to the Baptist defendants. In sustaining the summary judgment motion of the multiple defendants, the Fayette Circuit Court determined that NLC improperly prosecuted a defunct common-law claim rather than a statutory claim as set out in Kentucky Revised Statutes (KRS) 271B.8-300. NLC now argues that the circuit court erred in failing to conclude that the common-law breach of fiduciary duty claim is both viable and applicable to the facts herein. We conclude that though the circuit court correctly determined that KRS 271B.8-300 supplanted the common-law claim of breach of fiduciary duty, NLC properly asserted a claim of breach of fiduciary duty in its complaint, it should be availed of additional discovery, and summary judgment was premature.

Accordingly, we reverse the summary judgment and remand the matter for further proceedings. 3

1133. GOVERNMENTAL REGULATION. UTILITIES.
WEST KENTUCKY RURAL ELECTRIC COOPERATIVE CORPORATION
VS.
CITY OF BARDWELL, KENTUCKY
OPINION AFFIRMING
WINE (PRESIDING JUDGE)
MOORE (CONCURS) AND STUMBO (CONCURS)
2010-CA-001140-MR
TO BE PUBLISHED
CARLISLE

WINE, JUDGE: West Kentucky Rural Electric Cooperative Corporation (WKRECC) appeals from a summary judgment by the Carlisle Circuit Court resolving a utility service dispute in favor of the City of Bardwell, Kentucky. Upon a thorough review of the record, we affirm the Carlisle Circuit Court.

STATUTORY INTERPRETATION:

Statutory interpretation is a question of law for the courts. City of Worthington Hills v. Worthington Fire Protection Dist., 140 S.W.3d 584 (Ky. App. 2004). We interpret a statute according to its plain meaning, construing all words and phrases in accordance with their common usage. KRS 446.080(4). It is a general principle of statutory construction that we will not be guided by a single word or sentence in the statute, however, but that we will consider the statute as a whole with an eye towards promoting its object and purpose. County of Harlan v. Appalachian Regional Healthcare, Inc., 85 S.W.3d 607, 611 (Ky. 2002). In doing so, we keep in mind that the aim of statutory construction is always to effectuate the intent of the legislature. Id.

1135. CRIMINAL LAW. INSTRUCTIONS RE SEXUAL ABUSE STATUTE.
SPRAGUE (ARNOLD DAVIS)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
MOORE (CONCURS) AND WINE (CONCURS)
2010-CA-001274-MR
TO BE PUBLISHED
UNION

STUMBO, JUDGE: Arnold Davis Sprague appeals from a Judgment of the Union Circuit Court reflecting a jury verdict finding Sprague guilty of five counts of First Degree Sexual Abuse. Sprague argues that the Sexual Abuse statute – KRS 510.110 – is ambiguous, that the jury instructions were improper, and that the trial judge erroneously refused the jury’s request to interpret or clarify the instructions. We find no error, and affirm the judgment on appeal.

1136. DIVORCE.
CRAWFORD (VIRGINIA LEE)
VS.
CRAWFORD (JAMES DARWIN)
OPINION AFFIRMING IN PART, VACATING IN PART AND REMANDING
LAMBERT (PRESIDING JUDGE)
TAYLOR (CONCURS) AND DIXON (CONCURS)
2010-CA-001576-MR
TO BE PUBLISHED
BOYD

LAMBERT, JUDGE: In this dissolution action, Virginia Lee Crawford has appealed from the August 6, 2010, order of the Boyd Circuit Court confirming the report and supplemental report of the Domestic Relations Commissioner (DRC). Virginia asserts that the circuit court, in adopting the DRC’s findings and conclusions, did not equitably divide the marital property and debt and that it failed to award maintenance, medical expenses, and attorney fees. Having carefully considered the record, including the transcript of the final hearing before the DRC, we affirm the portion of the order declining to reimburse Virginia for her claimed medical/dental expenses, but we vacate the remainder of the order and remand for further proceedings.

1138. CRIMINAL LAW. EXPUNGEMENT.
COMMONWEALTH OF KENTUCKY
VS.
CASTILLO (FELIX)
OPINION REVERSING AND REMANDING
STUMBO (PRESIDING JUDGE)
KELLER (CONCURS) AND VANMETER (CONCURS)
2010-CA-002019-MR
2011-CA-000429-MR
TO BE PUBLISHED
JEFFERSON

STUMBO, JUDGE: This consolidated appeal concerns the Jefferson Circuit Court’s dismissal of a case with prejudice and the expungement of the case records. The Commonwealth argues that the trial court did not have the authority to dismiss the case with prejudice. It also argues that the records should not have been expunged. We agree with the Commonwealth and reverse and remand.

1140. CRIMINAL LAW. SENTENCING. RETROACTIVE.
SMITH (MICHELLE)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
MOORE (PRESIDING JUDGE)
WINE (CONCURS) AND STUMBO (DISSENTS)
2010-CA-002237-MR
TO BE PUBLISHED
CRITTENDEN

MOORE, JUDGE: Michelle Smith appeals from the Crittenden Circuit Court’s order sentencing her to five years’ imprisonment. After a thorough review of the record, we affirm.

RETROACTIVE STATUTES:

As a general rule, “[n]o statute shall be construed to be retroactive, unless expressly so declared.” KRS 446.080(3). Thus, Kentucky courts have as a rule applied the law in existence at the time of the commission of the crime. Lawson v. Commonwealth, 53 S.W.3d 534, 550 (Ky. 2001). However, KRS 446.110 provides an exception to this rule, where the amended provision is “‘certainly’ or ‘definitely’ mitigating,” id. (footnote omitted), and where the defendant has given her consent as the “party affected.” Id. at 551 (“[Defendant] certainly did not consent to the application of the modified provisions.”); Commonwealth v. Phon, 17 S.W.3d 106, 107 (Ky. 2000) (“[P]enalty…could be applied, with the defendant’s consent…”); Coleman v. Commonwealth, 160 Ky. 87, 169 S.W. 595, 597 (1914) (“unless the punishment is definitely mitigated by the new law and the accused consents . . .”).

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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

SEE SYNOPSIS ABOVE.

1137. APPOINTMENT OF PUBLIC ADMINISTRATOR IN WRONGFUL DEATH ACTION.
FIGUEROA (LORENZA)
VS.
MEINHART (CHRIS), ET AL.
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
KELLER (CONCURS) VANMETER (CONCURS)
2010-CA-001693-DG
NOT TO BE PUBLISHED
JEFFERSON

STUMBO, JUDGE: Lorenza Figueroa appeals from an order of the Jefferson District Court appointing the Public Administrator to administer the estate of her nephew, Saul Figueroa-Bautista. She argues that the Public Administrator was appointed before 60 days had elapsed, making the appointment void under KRS 395.390(1). The Appellees argue there is no time limit requirement for the appointment of the Public Administrator. We find KRS 395.390(1) generally requires that the district court wait for 60 days after the death of a decedent before it appoints the Public Administrator as administrator of an estate; however, in this case, such requirement was unnecessary.

1139. CIVIL PROCEDURE. SETTING ASIDE DEFAULT JUDGMENT.
LA EXOTIC MOTOR CARS, INC.
VS.
WIMSETT (VINCENT)
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
KELLER (CONCURS) AND VANMETER (CONCURS)
2010-CA-002154-MR
NOT TO BE PUBLISHED
JEFFERSON

STUMBO, JUDGE: LA Exotic Motorcars, Inc.1 appeals from an order of the Jefferson Circuit Court overruling its motion to set aside a default judgment rendered in favor of Vincent Wimsett. The default judgment was rendered after LA Exotic Motorcars’ answer to Wimsett’s complaint was stricken by order of the Jefferson Circuit Court. LA Exotic Motorcars maintains that it never received notice that its answer was stricken, and that it was prepared to assert valid defenses to the complaint and move forward to trial. Since LA Exotic Motorcars tendered no response either to the motion to strike its answer or to Wimsett’s subsequent Application for Default Judgment, we find no error in the order of dismissal and accordingly affirm.

1145. CIVIL PROCEDURE. LOCAL RULES VIOLATION FOR FAILURE TO GIVE 20 DAYS TO RESPOND TO MOTION TO DISMISS.
GAINES (KEITHEN), ET AL.
VS.
NICHOLS (VIRGINIA), ET AL.
OPINION REVERSING AND REMANDING
STUMBO (PRESIDING JUDGE)
KELLER (CONCURS) AND VANMETER (CONCURS)
2011-CA-000413-MR
NOT TO BE PUBLISHED
JEFFERSON

STUMBO, JUDGE: Keithen Gaines and Kathy Parker appeal from an order of the Jefferson Circuit Court dismissing their action against Virginia J. Nichols and Safe Auto Insurance Company in which they sought damages resulting from a “hit and run” automobile accident. Gaines and Parker argue that the circuit court erred by sustaining the defendants’ motions to dismiss before the 20 day local rule response period had elapsed. They also contend that the court improperly failed to strike Nichols’ motion to dismiss as it was improperly set to be heard at a motion hour in violation of a local rule. Because the record reveals that Gaines and Parker were not given 20 days to respond to Nichols’ motion to dismiss, we must reverse on this issue and remand the matter for further proceedings.

1146. INSURANCE. UIM EXCLUSION UPHELD RE OWNED BUT UNINSURED VEHICLE.
LARKIN (MARY), ET AL.
VS.
UNITED SERVICES AUTOMOBILE ASSOCIATION
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
MOORE (CONCURS) AND WINE (CONCURS)
2011-CA-000434-MR
NOT TO BE PUBLISHED
HARDIN

STUMBO, JUDGE: Mary Larkin, individually, and the Estate of Michael L. Larkin (hereinafter collectively referred to as “Appellants”) appeal from a Summary Judgment rendered in Hardin Circuit Court in their action to collect underinsured motorist (“UIM”) benefits from United Services Automobile Association (“USAA”). The Appellants contend that the trial court erred in concluding that a provision of a USAA insurance contract is enforceable and not contrary to public policy. That exclusionary language provided that if the insured was operating an uninsured motor vehicle owned by that insured at the time of the accident, the insured was not entitled to UIM benefits. We find no error in this conclusion and the resultant entry of Summary Judgment, and accordingly affirm.

December 16, 2011 COA Minutes — Nos. 1131-1141 (21 decisions; 7 published)

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