author: /s/ John D. Minton, Jr. Chief Justice

text:
    Ronald R. SNYDER, Movant, v. KENTUCKY BAR ASSOCIATION, Respondent.
    No. 2010-SC-000549-KB.
    Supreme Court of Kentucky.
    Sept. 23, 2010.
   OPINION AND ORDER

Ronald Snyder moves this Court to enter an order permanently disbarring him from the practice of law in the Commonwealth of Kentucky. In response, the Kentucky Bar Association (KBA) agrees that Snyder’s conduct warrants permanent disbarment. Snyder, whose KBA member number is 66280 and whose bar roster address is 187000 Shelbyville Road, Fish-erville, KY 40023, states that he has not actively practiced law since 1988. The parties have not provided this Court with Snyder’s date of admission to the practice of law in Kentucky.

Snyder has admitted to exercising fraudulent and illegal control over another’s condominium by renting it to others and keeping the rental income for himself after the condominium owner’s death. Snyder admitted to knowingly failing to locate the heirs of the owner or cede control of the condominium to the Commonwealth of Kentucky after the owner’s death. Snyder collected at least $15,000 in rent over the course of approximately twelve years. Based on this conduct, he was criminally charged in federal court with committing mail fraud in violation of 18 U.S.C. § 1841. He entered a guilty plea to this charge. According to his plea agreement, this conviction could subject him to up to twenty years’ imprisonment, as well as fines and supervised release.

In addition to the federal crime, Snyder admits to state court charges to the effect that “while serving as Executor but not as Attorney” for an estate, he “did not ensure the proper distribution of assets of [the] estate for a period of seventeen years” because of “his abuse of alcohol and failing health....”

The KBA’s response to Snyder’s motion does not specifically discuss the pending state court charges. The KBA’s response does generally recite that Snyder “entered a Plea of Guilty to the criminal charges against him.” It is unclear to us whether this statement refers only to the federal mail fraud conviction or to pending charges in Kentucky state court charges, as well.

Despite the KBA’s lack of specific response to this admitted misconduct of failing properly to distribute assets of an estate, we note that Snyder attached to his motion a document purporting to be a “Commonwealth’s Offer on a Plea of Guilty” signed by Snyder and his counsel, which recites the following facts:

Beginning in March 1993, the defendant [Snyder] intentionally concealed from the rightful heirs and unlawfully maintained control over stock owned by [Decedents T.L. and/or M.L.] upon their deaths. The value of this stock was over $300. The defendant also intentionally concealed from the rightful heirs and unlawfully maintained control over more than $300 in a [bank] checking account owned by [Decedent T.L.] when he died.... [recitation of facts underlying federal mail fraud conviction for unlawfully maintaining control over and collecting rental payments on condominium previously owned by Decedent R.C.] ... Finally, the defendant, knowing that [R.C.] was deceased, used [R.C.’s] name, date of birth and driver’s license and forged his signature to complete a Homestead Exemption application with the Commonwealth of Kentucky in order to reduce tax liability on the property.

The agreement then recites the Commonwealth’s recommendation for Snyder’s sentence — one year on each count, to be served concurrently — offered in exchange for Snyder’s plea of guilty to three counts of theft by deception over $800, one count of identity theft, and one count of second-degree criminal possession of a forged instrument. The agreement further states that each charged count would subject Snyder to a statutory penalty of one to five years’ imprisonment. Apparently, this state criminal case against Snyder may not yet be fully resolved because Snyder’s motion, which was filed with this Court on August 19, 2010, recites that “additional charges are being lodged by the Commonwealth’s Attorney for the 30th Judicial District” and that Snyder has “signed [a] Plea sheet with Commonwealth’s Attorney’s Office as relative to state charges.... ”

Snyder admits that his misconduct violates Kentucky Supreme Court Rule (SCR) 3.130(8.4)(c) (conduct involving dishonesty, fraud, deceit or misrepresentation) and requests that this Court grant his motion to resign under terms of permanent disbarment under SCR 3.480(3). He verifies that he has not actively practiced law since 1988, that he will not seek reinstatement to the bar, that he will not practice law after his disbarment, that he does not advertise and has no clients, and that he will pay all costs of the disciplinary investigation and proceedings. He also states that because of his mail fraud conviction and other pending charges, “combined with [Snyder’s] own significant alcohol abuse and health issues,” he wishes “to fully and finally request termination of his license.”

Permanent disbarment is warranted here because

• Snyder has stated in his motion that he wishes to resign under terms of permanent disbarment;
• the KBA has no objection to this motion;
• the federal mail fraud conviction is conclusive proof of criminal conduct;
• Snyder has admitted to further criminal conduct for which charges are apparently pending in Kentucky state court;
• we adjudge Snyder guilty of violation of SCR 3.130(8.4)(e); and
• earlier cases involving similar misconduct indicate that permanent disbarment is appropriate.

Accordingly, the Court ORDERS:

1) Ronald Snyder is permanently disbarred from the practice of law in the Commonwealth of Kentucky;

2) Under SCR 3.450, Snyder must pay all costs associated with these disciplinary proceedings in the amount of $78.75, for which execution may issue from the Court upon finality of this Opinion and Order; and

3) Under SCR 3.390, Snyder must, within ten days from the entry of this Opinion and Order, notify all clients, in writing, of his inability to represent them; notify, in writing, all courts in which he has matters pending of his disbarment from the practice of law; and furnish copies of all letters of notice to the Director of the Kentucky Bar Association. Furthermore, to the extent possible, Snyder must immediately cancel and cease any advertising activities in which he is engaged.

All sitting. All concur.

ENTERED: September 23, 2010.

/s/ John D. Minton, Jr. Chief Justice

      . Snyder’s bar roster address was not provided in the parties' pleadings nor were we able to locate it in the record provided. The bar roster address used in this Opinion and Order was found using the Lawyer Locator feature on the KBA website, www.kybar.org.

        . Our recitation of the facts underlying this federal mail fraud conviction is consistent with Snyder’s admissions in his written plea agreement. Snyder's verified motion to this Court differs from his guilty plea insofar as he alleges here that he "sought unsuccessfully to locate Decedent's heirs” and that his continued acceptance of rental payments over twelve years occurred "[d]ue to impaired judgment as a result of ... alcohol abuse and health issues...." We consider Snyder’s admissions in his written plea agreement controlling because Snyder entered into the agreement while represented by counsel; and he and his counsel both acknowledged, in writing, that they had reviewed every part of the agreement and that Snyder understood its terms and voluntarily entered into the agreement.

      . The Commonwealth's recommended sentence also included fines, restitution (return of assets to the T.L. estate), and probation for the same period imposed by the federal district court in the federal mail fraud case.

      . Theft by deception (Kentucky Revised Statutes (KRS) 514.040) is a Class A misdemean- or unless the value of the stolen property exceeds a certain threshold. It appears the relevant amount for a Class D felony is now the range of between $500 and $10,000 although the relevant amount was once the range of $300 to $10,000. Identity theft is a Class D felony. KRS 514.160. Second-degree criminal possession of a forged instrument is also a Class D felony. KRS 516.060. A Class D felony conviction subjects the defendant to a penalty of one to five years’ imprisonment. KRS 532.060(2)(d).

      . Kentucky Bar Association v. Horn, 4 S.W.3d 135, 137 (Ky.1999).

      . See Kentucky Bar Association v. Cameron, 262 S.W.3d 643 (Ky.2008) (misappropriation of funds, double-charging estate, and failure to respond to disciplinary process); Kentucky Bar Association v. Steiner, 157 S.W.3d 209 (Ky.2005) (commingling funds, misappropriating funds, and defrauding clients and law firm); Kentucky Bar Association v. Matthews,
        131 S.W.3d 744 (Ky.2004) (fraud, making false statements); Kentucky Bar Association v. Layton, 97 S.W.3d 452 (Ky.2003) (misappropriation of funds, guilty plea to charges of theft by failure to make required disposition).


source: Caselaw Access Project

license: Public Domain

text:
    KENTUCKY BAR ASSOCIATION, Movant, v. Kyle David KERSEY, Respondent.
    No. 2010-SC-000419-KB.
    Supreme Court of Kentucky.
    Sept. 23, 2010.
   OPINION AND ORDER

The Board of Governors of the Kentucky Bar Association has recommended to this Court that Respondent, Kyle David Kersey, KB A Member No. 82097, who was admitted to practice law in Kentucky on October 30, 1987, and whose last known bar roster address is 101 West 7th Street, Corbin, KY 40701, be permanently disbarred as a result of five separate disciplinary matters which resulted in default eases under SCR 3.210. We agree with and adopt the Board’s recommendation. A summary of the five bar discipline charges against Respondent follows.

File No. ism

Brandon Mills retained Kersey to represent him in an action resulting from an automobile accident. Kersey settled with the insurer for the policy limit of $25,000 and with Mills’s no-fault insurer for the unpaid PIP balance of $4,034.80. Mills signed a settlement statement in April 2004 acknowledging Kersey’s receipt of the $25,000 and showing that Mills was entitled to $18,750. In May 2005, Kersey deposited the PIP payment less $200 into his business account. Mills received no money from either the liability settlement or the PIP settlement, nor did he receive a disbursement statement showing where the money went.

During the course of the investigation of this complaint, Kersey wrote three letters to Bar Counsel, indicating that Mills’s medical expenses exceeded the total recovery amount, that the medical care providers would be paid pro rata from these funds, and that he was still holding both deposits in his escrow account. However, no evidence was produced or discovered to show that any medical bills were paid from the settlement funds.

Kersey was charged by the Inquiry Commission with violating SCR 3.130-1.15(a) (failure to hold property of clients or third persons that is in the lawyer’s possession in connection with a representation separate from a lawyer’s own property); SCR 3.130-1.15(b) (failure to promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person not promptly rendering a full accounting regarding such property); SCR 3.130-8.1(a) (knowingly making a false statement of material fact); and SCR 3.130-8.3(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.) After several attempts to personally serve Ker-sey, he was constructively served with the charge through the Executive Director per SCR 3.175. No answer to the charge was filed. The Board of Governors voted nineteen to zero, with one abstention, to recommend that Kersey be found guilty of all of the charges alleged in File No. 13454.

File No. 15697

Apren H. Poore retained Kersey to represent him in a claim resulting from an automobile accident that occurred in March 2006. Kersey obtained $25,000 from the liability insurance policy and $10,000 in PIP funds on behalf of Poore. Kersey advised Poore that there would be liens against any recovery in his case due to outstanding medical bills. The record reflects that before final settlement of these liens could be reached, Kersey gave Poore $5,250. However, Kersey asserts he advanced $3,050 to Poore and $4,500 to Poore’s mother.

Kersey provided records showing he deposited the liability and PIP funds into his escrow account in May 2006. The Inquiry Commission subpoenaed Kersey’s escrow bank records for October 2007 through June 2008. These records show that in the month of October 2007, his account was overdrawn by $107.40 and the liability and PIP funds were gone. No evidence was produced to show that any of Poore’s medical bills were paid from the escrow account. Poore continues to receive bills regarding these unpaid medical expenses.

Respondent was charged by the Inquiry Commission with violating SCR 3.130-1.15(a) (failure to hold property of clients or third persons that is in the lawyer’s possession in connection with a representation separate from a lawyer’s own property); SCR 3.130-1.15(b) (failure to promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person not promptly rendering a full accounting regarding such property); SCR 3.130-8.1(a) (knowingly making a false statement of material fact); and SCR 3.130-8.3(c) (engaged in conduct involving dishonesty, fraud, deceit or misrepresentation.) After several attempts to serve Kersey, he was constructively served with the charge through the Executive Director per SCR 3.175. No answer to the charge was filed. The Board of Governors voted twenty to zero to recommend that Kersey be adjudged guilty of all of the charges alleged in File No. 15697.

File No. 15912

Shawna Ellis retained Kersey to represent her in a claim resulting from the same automobile accident which Poore was involved in that occurred in March 2006. Kersey obtained $25,000 from the liability insurance policy and $10,000 in PIP funds on behalf of Ellis. Kersey advised Ellis that there would be medical liens against any recovery in her case. Before final settlement of these liens could be reached, Kersey gave Ellis $4,250 from the insurance proceeds. Kersey deposited the remainder of the proceeds in his escrow account.

The Inquiry Commission subpoenaed Kersey’s escrow bank records for October 2007 through June 2008. These records show that in the month of October 2007, his account was overdrawn by $107.40, and Ellis’s money was gone. Despite Ellis’s requests, Kersey has failed to provide her with an accounting or itemization of the disbursements made on her behalf from the insurance proceeds, nor has any evidence been produced that any of the medical providers have been paid from the funds on deposit.

Respondent was charged by the Inquiry Commission with violating SCR 3.130-1.15(a) (failure of a lawyer to hold property of clients or third persons in his or her possession separate from the lawyer’s own property); SCR 3.130-1.15(b) (failure to promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person not promptly rendering a full accounting regarding such property); and SCR 3.130-8.3(c) (engaged in conduct involving dishonesty, fraud, deceit or misrepresentation.) After several attempts to serve Kersey, he was constructively served with the charge through the Executive Director per SCR 3.175. No answer to the charge was filed. The Board of Governors voted twenty to zero to recommend that Kersey be adjudged guilty of all of the charges alleged in File No. 15912.

File No. 16678

Wanda Godby retained Kersey for representation on federal criminal charges. Godby pledged her pickup truck worth $10,000 to Kersey as collateral for her legal fee of $5,000. Kersey and Godby had an oral agreement in which Godby would have the option to pay the lawyer’s fee when her case was completed and could then recover her truck. In February 2009, Kersey told Godby that she would need to transfer the title of the truck to him for insurance purposes since it was being housed on his property. Godby signed the title over to Kersey. Shortly thereafter, Kersey filed a motion to withdraw as counsel in the criminal matter. Kersey sold the truck but did not notify Godby.

In February 2009, the federal court held a telephonic conference in the criminal matter. Kersey did not participate and Godby indicated that she just learned that day about the motion to withdraw. She stated that she had made many unsuccessful attempts to speak with Kersey.

In March 2009, both Godby and Kersey were present at a hearing in federal court. Godby there learned that Kersey sold her truck. Kersey admitted that his agreement with Godby would have allowed her to pay her legal fees and recover her truck. Kersey informed the court that he sold the truck for $2,200. Godby stated that she had been offered $10,000 for the truck. The court granted Kersey’s motion to withdraw and appointed a federal public defender to represent Godby.

Respondent was charged by the Inquiry Commission with violating SCR 3.130-1.4(a) (failing to keep client reasonably informed); SCR 1.8(a) (improper business transaction with a client); SCR 3.130-1.15(c) (failure to keep separate property in which both the client and lawyer have a claim of interest); SCR 1.16(d) (failing to protect the client’s interests upon termination of the representation and failure to return an unearned fee); SCR 3.130-8.1(b) (failure to respond); and SCR 3.130-8.3(c) (engaged in conduct involving dishonesty, fraud, deceit or misrepresentation).

After several attempts to serve Kersey, he was constructively served with the charge through the Executive Director per SCR 3.175. No answer to the charge was filed. The Board of Governors voted twenty to zero to recommend that Kersey be adjudged guilty of all of the charges alleged in File No. 16678.

File No. 17857

The Office of Bar Counsel began receiving overdraft notices from Cumberland Valley National Bank, Kersey’s bank, on December 30, 2008 regarding Kersey’s escrow account. Kersey was sent letters in January and again in April 2009 requesting copies of bank documents to show he corrected the overdrafts and asking for a written explanation of why the overdrafts occurred. A reminder letter was sent to him in June 2009. He did not respond to any of these letters.

Bar Counsel received additional overdraft notifications and filed a Inquiry Commission complaint on September 15, 2009. The complaint reflected that fourteen checks drawn on Kersey’s account were returned for insufficient funds. Subsequent to the filing of the Inquiry Commission complaint, five additional overdraft notifications for Kersey’s escrow account were received. A total of nineteen checks were returned for insufficient funds between December 2008 and October 2009, totaling $10,467.66.

Respondent was charged by the Inquiry Commission with violating SCR 3.130-1.15(a) (failure to hold property of clients or third persons that is in the lawyer’s possession in connection with a representation separate from a lawyer’s own property); and SCR 3.130-8.1(b) (failure to respond). After several attempts to serve Kersey, he was constructively served with the charge through the Executive Director per SCR 3.175. No answer to the charge was filed. The Board of Governors voted twenty to zero to recommend that Kersey be adjudged guilty of all of the charges alleged in File No. 17857.

CONCLUSION

Based upon the seriousness of the charges against him, the Board of Governors, voted twenty to zero to recommend that Kersey be permanently disbarred. Respondent has not filed a notice with this Court to review the Board’s decision, and we do not elect to review the decision of the Board under SCR 3.370(8). The decision of the Board is hereby adopted under SCR 3.370(10).

Thus it is ORDERED that:

1) Respondent, Kyle David Kersey, KBA Member No. 82097, 101 West 7th Street, Corbin, KY 40701 is permanently disbarred;

2) In accordance with SCR 3.450, Respondent must pay all costs associated with these disciplinary proceedings against him, the sum being $1,824.82, for which execution may issue from this Court upon finality of this Opinion and Order;

3) Respondent must make restitution to all clients who have filed bar complaints against him for misappropriation of funds;

4) Under SCR 3.390, Respondent must, within ten (10) days from entry of this Opinion and Order, (a) to the extent possible, cancel and cease any advertising activities in which he is engaged; and (b) notify all clients, in writing, of his inability to represent them; notify all courts in which he has matter pending of his disbarment from the practice of law; and furnish copies of said letters of notice to the Director of the Kentucky Bar Association.

All sitting. All concur.

ENTERED: September 23, 2010.

/s/ John D. Minton, Jr. Chief Justice

      . Attorney's fees amounted to $6,025.

      . Now SCR 3.130-8.4(c)

      . On May 3, 2010, Respondent filed a Motion with the Inquiry Commission for leave to File a Late Answer in this case. The Board denied the motion.

      . Now SCR 3.130-8.4(c)

      . Now SCR 3.130-8.4(c)

      . Now SCR 3.130-8.4(c)


text:
    KENTUCKY BAR ASSOCIATION, Movant, v. Charles E. CHRISTIAN, Respondent.
    No. 2010-SC-000265-KB.
    Supreme Court of Kentucky.
    Sept. 23, 2010.
   OPINION AND ORDER

Charles E. Christian appeals a unanimous decision of the Kentucky Bar Association (KBA) Board of Governors to permanently disbar Christian from the practice of law in this Commonwealth. Christian, whose KBA member number is 11936, was admitted to practice law in the Commonwealth on October 20, 1981. Christian’s bar roster address is 5100 Reidland Road, Paducah, Kentucky 42003. Upon our review of the record, we agree with the KBA’s adoption of the trial commissioner’s report and recommendation of permanent disbarment.

This disciplinary proceeding arises from two separate cases. Although the cases were consolidated, the trial commissioner issued separate findings and recommendations in each case. The KBA adopted the findings and recommendations in each instance. As the trial commissioner absolved Christian of the charge brought in the first case, neither pai'ty raises any issue concerning that matter before this Court. Thus, we proceed to address the case in dispute, which involves Christian’s misconduct in serving as the executor and attorney for the Estate of Daisy Taylor Croft.

Croft died on June 13, 2000, and although Christian possessed everything necessary to probate the will within two months of her death, he filed nothing until May 17, 2001. Further, Christian never registered the testamentary trust as required by law. Between September 25, 2001 and December 18, 2001, Christian wrote nine checks totaling $13,000.00 to himself from the Estate. Christian admitted that he did not earn these fees either as executor or as attorney. Prior to his removal as executor in December 2003, Christian ignored multiple court orders directing him to file inventories and settlements. Christian’s inaction also caused the estate to be assessed $9,517.00 by the Kentucky Revenue Cabinet.

Nearly three years after he was removed as executor of the estate, Christian signed an order admitting that he owed the estate $19,600.00. Christian signed a corresponding promissory note as well. The trial commissioner found that this figure was a compromise of the amount Christian had paid himself and the amount of the tax assessment. Despite having signed the documents in 2006, Christian made no effort to repay any of the debt to the estate. Moreover, the trial commissioner found that after his removal as executor, Christian failed to expeditiously furnish the new executor with the estate files.

Based upon the foregoing, a five-count charge was issued against Christian in April 2007. An evidentiary hearing was held before the trial commissioner who found Christian guilty of all five counts and recommended permanent disbarment. Specifically, the trial commissioner found that Christian had violated SCR 3.130-1.3, which requires a lawyer to act with reasonable diligence and promptness. In support of this conclusion, the trial commissioner cited Christian’s delay of over ten months in taking initial steps to probate the will, Christian’s failure to file an inventory despite repeated court orders to do so, Christian’s failure to register the testamentary trust or have a trustee appointed, and his lack of diligence in providing the successor executrix with an accounting.

Christian was also found guilty of violating SCR 3.130-1.5, which requires a lawyer’s fee to be reasonable. The trial commissioner noted that the $13,000.00 exceeded the statutory fee allowed an executor and that the probate court file revealed that Christian had done very little work on the estate. Furthermore, the order Christian signed conceded that “he was paid moneys from the estate for services that were not performed by him.”

The trial commissioner further found Christian guilty of SCR 3.130-1.16(d), which requires a lawyer to take steps to protect a client’s interest upon termination of representation, including surrendering any papers and property and refunding any unearned advance payments. Christian’s failure to promptly turn the files over to the successor executrix as well as his failure to refund the agreed-upon sum to the estate formed the basis for this conclusion.

Additionally, Christian was deemed to have violated SCR 3.130-3.4(c), which prohibits a lawyer from knowingly or intentionally disobeying an obligation under the rules of a tribunal. In support of this conclusion, the trial commissioner cited Christian’s repeated failures to respond to court orders to file inventories and failure to appear for show cause hearings.

Lastly, Christian was found to have violated SCR 3.130-8.4(0) which specifies that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation. The trial commissioner found that Christian had dishonestly taken the $13,000.00, not having earned it, and although it was apparent that he had performed some minimal work for the estate, Christian provided no evidence of work he had performed.

The trial commissioner found that Christian provided no reason or excuse for his misconduct and, accordingly, recommended permanent disbarment for these violations. The KBA adopted the findings and recommendations of the trial commissioner. Before this Court, Christian asserts that he did, in fact, cooperate with the successor executrix and that his conduct did not involve dishonesty, fraud, deceit or misrepresentation. Aside from these two arguments, the trial commissioner’s findings and conclusions are largely undisputed. Nevertheless, Christian argues that permanent disbarment is too severe a sanction for his actions.

Turning first to Christian’s assertions regarding his cooperation with the successor executrix and whether his conduct involved dishonesty, we must agree with the KBA that these violations were proven. As to his cooperation with the successor executrix, this violation was conceded by Christian’s counsel at the beginning of the hearing, but clarified at its conclusion to encompass only Christian’s failure to refund the payments he had advanced himself. At any rate, such advancements were property of the estate and his failure to return them to the estate establishes a violation SCR 3.130-1.16(d). And although Christian maintains that he turned over the estate files to the successor attorney within a moderately reasonable time, the trial commissioner found that Christian failed to promptly turn over the files despite repeated requests. As to whether Christian’s misconduct rose to the level of “dishonesty, fraud, deceit or misrepresentation,” under SCR 3.130-8.4(c), the trial commissioner agreed with Christian that there was no fraud, deceit or misrepresentation. However, the trial commissioner concluded that Christian’s taking of the $13,000.00, whatever the reason, was dishonest. We must agree.

We now turn to Christian’s contention that the sanction is too severe. Christian cites to cases wherein this Court has deemed suspension and restitution to be a more appropriate sanction than permanent disbarment for a lawyer’s mishandling and retention of monies. Distinguishing factors in those cases render them unpersuasive here. For example, the amounts of money withheld in Kentucky Bar Ass’n v. Hammond, 241 S.W.3d 310 (Ky.2007), were vastly less than the $13,000.00 here, and the clients actually paid Hammond sums that were subsequently not earned. Hammond did not simply take client funds that were in his custody and control, as Christian did in this case. In Hensley v. Kentucky Bar Ass’n, 222 S.W.3d 232 (Ky.2007), the lawyer’s restoration of the funds, lack of disciplinary history, and cooperation with the disciplinary proceedings mitigated her punishment. And, in Kentucky Bar Ass’n v. Hawkins, 260 S.W.3d 337 (Ky.2008), the lawyer’s sobriety, involvement in Alcoholics Anonymous, and earnest participation in the Kentucky Lawyers Assistance Program served as mitigating factors.

Christian urges that the KBA failed to consider similar mitigating factors in his situation. Specifically, Christian testified that he had sought therapy for depression and was taking medication for it. Further, Christian admitted to possible “episodic” alcohol abuse. The KBA responds that although mental disability or chemical dependency may be mitigating factors, medical evidence must be presented and there must be proof that the disability caused the misconduct. Kentucky Bar Ass’n v. Steiner, 157 S.W.3d 209 (Ky.2005); ABA Standards 9.32(i)(1). Furthermore, recovery from the condition must be demonstrated by a “meaningful and sustained period of successful rehabilitation,” ABA Standards 9.32(i)(3), and the misconduct must have stopped and recurrence proved to be unlikely. As pointed out by the KBA, Christian submitted no medical evidence nor was there any contention that his alleged disability or dependency caused his misconduct. Although Christian asserted that he had attended Alcoholics Anonymous meetings, he conceded that he did not attend with any regularity and although he had been referred to KYLAP, he declined to participate.

Thus, the KBA submits that there are no mitigating factors, but rather aggravating factors exist. Specifically, Christian has a disciplinary history consisting of three private admonitions. Furthermore, Christian has made no efforts to reimburse the estate for the unearned monies he took. At the hearing, Christian pleaded an inability to pay due to his dire financial plight and underemployment. At any rate, as the KBA points out Christian had made no efforts to pay any of the money back to the estate. The KBA further points out that the vulnerability of the victim is significant. Specifically, pursuant to Croft’s will, a testamentary trust was to be established for her niece, Mildred Moore, who was in her seventies at the time of Croft’s death. Because of Christian’s inaction, Moore had to pay Croft’s funeral expenses out of her own pocket and was not reimbursed by the estate until much later.

The KBA cites several cases where permanent disbarment was imposed for similar infractions. See, e.g., Kentucky Bar Ass’n v. Kessen, 311 S.W.3d 249 (Ky.2010) (imposing permanent disbarment for misappropriation of over $7000.00); Kentucky Bar Ass’n v. Cameron, 262 S.W.3d 643 (Ky.2008) (imposing permanent disbarment for misappropriation of funds exceeding $13,000.00, ignoring court orders, and misrepresenting the status of the case to client); Kentucky Bar Ass’n v. Klapheke, 203 S.W.3d 135 (Ky.2006) (imposing permanent disbarment for misappropriating settlement funds in excess of $6,000.00).

We agree with the trial commissioner’s findings and conclusions, as well as the post-hearing report of the KBA Board of Governors and, accordingly, impose the recommended sanction of permanent disbarment.

Therefore, it is hereby ORDERED that:

1. Respondent, Charles E. Christian, is adjudicated guilty of the ethical violations described hereinabove.

2. Christian is permanently disbarred from the practice of law in Kentucky.

3. Christian is directed to pay all sums due and owing on the promissory note payable to the Estate of Daisy Taylor Croft.

4. In accordance with SCR 3.450, Christian is directed to pay all costs associated with these disciplinary proceedings against him, said sum being $1,727.85, for which execution may issue from this Court upon finality of this Opinion and Order; and

5. In accordance with SCR 3.390, Christian is ordered to send letters to all Courts in which he has matters pending and all clients for whom he is actively involved in litigation within ten days of this Order notifying them of his inability to continue to represent them and advising them of the necessity of retaining new counsel. Christian shall also provide a copy of such letters to the Director of the KBA.

Furthermore, to the extent possible, Christian shall immediately cancel and cease any advertising activities in which he is engaged.

All sitting. All concur.

ENTERED: September 23, 2010.

/s/ John D. Minton, Jr. Chief Justice

      . At the time of the charge against Christian, this provision was SCR 3.130-8.3. The rule has recently been renumbered and is currently found at SCR 3.130-8.4(c). The current citation will be used in this opinion.


author: MINTON, C.J., /s/ John D. Minton, Jr. Chief Justice

text:
    INTERACTIVE MEDIA ENTERTAINMENT AND GAMING ASSOCIATION, INC., Petitioner, v. Hon. Thomas D. WINGATE, Judge, Franklin Circuit Court; Jack Conway, Attorney General, Commonwealth of Kentucky, Respondents. and Commonwealth of Kentucky, ex rel. J. Michael Brown, Secretary, Justice and Public Safety Cabinet, Real Party In Interest, and Interactive Gaming Council, a Non-Profit Trade Association, Petitioner, v. Hon. Thomas D. Wingate, Judge, Franklin Circuit Court, Respondent. and Commonwealth of Kentucky, ex rel. J. Michael Brown, Secretary, Justice and Public Safety Cabinet, Real Party In Interest.
    Nos. 2010-SC-000212-TG, 2010-SC-000266-TG.
    Supreme Court of Kentucky.
    Sept. 23, 2010.
   OPINION AND ORDER GRANTING TRANSFER AND DENYING PETITION

The Petitioners, Interactive Media Entertainment and Gaming Association (IMEGA) and Interactive Gaming Council (IGC), both seek to have their writ actions in the Court of Appeals transferred to this Court. The Court of Appeals recommended transfer of both actions. Since writ actions are original filings before the Court of Appeals, an appeal of its decision regarding the writ is the proper procedural mechanism to reach this Court, not a motion for transfer. However, given that this Court views this writ action as an attempt to bypass the procedural and substantive jurisdiction of the trial court, and since we and the Court of Appeals have already reviewed the record in this case on a previous writ action, we grant transfer. However, we deny the writ.

I. Background

This matter originated with an action by the Commonwealth in Franklin Circuit Court to seize 141 domain names, which the Commonwealth alleged to be hosting illegal internet gambling. The action was styled and conducted as an in rem proceeding because the Commonwealth was not suing anyone, but was instead trying to seize property — the intangible domain names. The trial court found that there was probable cause to believe that the websites were violating Kentucky gambling laws, and ordered seizure of the domain names. After learning of the seizure, several parties claiming an interest in the domain names came forward, through counsel. They sought to intervene in the action and to contest the seizure. Several of these parties purported to be the gambling domain names themselves, while others were gambling associations claiming an associational interest in contesting the seizure. The trial court denied standing to any of these parties to contest the seizure because they were not owners or registrants of the domain names, and therefore, did not have a legal interest in the matter. Without any adverse claimants, the trial court then set a forfeiture hearing to allow the actual registrants and owners of the domain names to come forward and contest the forfeiture. Denied at the trial court, the same parties seeking to intervene filed an original action at the Kentucky Court of Appeals, seeking a writ of prohibition. They claimed the trial court, by ordering seizure of the domain names, was acting outside its jurisdiction, which is one of the grounds for granting a writ. The Court of Appeals granted the writ in a 2-to-l decision on the merits that the trial court did not have jurisdiction to order the seizure of the gambling domain name because they were not gambling devices. The opinion, as well as the concurrence and dissent, failed to adequately address that the parties’ standing was also at issue in the writ action, as raised by the Commonwealth.

In March, 2010, this Court reversed the Court of Appeals. See Commonwealth ex rel. Brown v. Interactive Media Entertainment and Gaming Ass’n,. Inc., 306 S.W.3d 32, 34 (Ky.2010). In so doing, this Court agreed with the trial court that neither the domain names themselves nor the gambling associations had established standing to contest the seizure. The domain names were the actual properties seized, so they could not contest their own seizure. Meanwhile, the gambling associations had not made any showing that they actually represented owners or registrants of the seized property, so they could not have associational standing. However, that opinion did not clearly delineate that by agreeing with the trial court’s view of the standing of the Petitioners, this Court viewed standing to take a writ action as derivative of a party having a stake in the underlying action. That Opinion merely denied standing to proceed in that writ action.

Upon our reversal of the granting of the writ, the two gambling associations — IME-GA and IGC — filed subsequent writ petitions at the Court of Appeals. They claimed to have cured their standing defects by naming some of them members and including affidavits that these members are owners or registrants of some of the domain names. The Court of Appeals granted the associations’ motions to recommend transfer of the case to this Court because the Court of Appeals had already ruled on the merits. We accept transfer and now deny the writ without further proceedings.

II. Discussion

A. Standing

The controlling point that was perhaps not clear in Commonwealth ex rel. Brown v. Interactive Media Entertainment and Gaming Ass’n, Inc. is that a party without standing, or a stake, in the lower court proceeding for which a writ is sought simply does not have standing to seek a writ against the lower court. Writ actions are not available to any party that might claim to have an interest in underlying litigation: such a party must have demonstrated a real and justiciable stake in the lower court proceeding, which in turn gives rise to a stake in the concomitant writ action.

At the point when the first writ action was filed in the Court of Appeals, the trial court had determined that the Petitioners were not the actual owners or registrants of the domain names, and therefore had no standing to intervene. Having been denied intervention, the Petitioners were not proper parties in the underlying action, and obviously had no standing to challenge, by writ action or otherwise, anything other than the lower court’s standing determination. In the first writ action, instead of addressing the jurisdictional issues that had been raised at and addressed by the Court of Appeals, this Court reviewed the trial court’s decision that the Petitioners had no standing. We agreed with the trial court’s findings in this regard and overruled the Court of Appeals, which had prematurely addressed the merits of the trial court’s jurisdiction to seize the domain names. Since Petitioners had no standing to challenge that jurisdiction, and instead could only challenge whether the trial court was correct in its determination as to their standing in the lower court, this Court denied the writ both substantively on the standing issue and procedurally on the jurisdiction issue.

However, in conclusory dicta, this Court created some confusion when it stated,

If a party that can properly establish standing comes forward, the writ petition giving rise to these proceedings could be re-filed with the Court of Appeals. The Court of Appeals could then properly proceed to the merits of the issues raised, or upon a proper motion, this Court could accept transfer of the case, as the merits of the argument have already been briefed and argued before this Court.

Interactive Media Entm’t & Gaming Ass’n, Inc., 806 S.W.3d at 40.

While this Court believes it should have been apparent that it was referring to a potential writ action after the question of standing was heard and decided by the trial court on a renewed motion to intervene, the language can be subject to the interpretation implicit in the Petitioners’ decision to proceed directly to the Court of Appeals after identifying an alleged domain name owner. No doubt, the Petitioners’ interpretation was driven in part by this Court’s statement that proof of standing “may be done by reference to the facts in the underlying litigation or a verified assertion, such as in an affidavit, attached to the petition.” Id. However, as the record demonstrates, neither of these options is workable at this point.

The Petitioners have attempted to proceed under the second option, specifically by filing with their renewed writ petition several affidavits claiming to identify members who own domain names subject to the seizure order. For example, IMEGA has included affidavits that purport to show that Yatahay, Ltd. — the lone member that group has identified — actually owns a seized domain. Yet, the Commonwealth takes issue with IMEGA’s assertion and questions the adequacy of the affidavits, pointing to an unconventional and arguably improper notarization. Moreover, the Commonwealth has presented contrary evidence of another entity’s ownership of the domain name. Of course, whether Yata-hay actually owns the domain name is critical to IMEGA’s assertion of standing. While this preliminary factual dispute may be a relatively simple one, it involves a fact finding mission that an appellate court, even one facing a writ petition, is not well suited to undertake.

Though this Court has on occasion noted that fact-finding by an appellate court may be required in the course of resolving a writ petition, see, e.g., Newell Enterprises, Inc. v. Bowling, 158 S.W.3d 750, 758 n. 13 (Ky.2005) (noting that “because [an appellate court] acts as the trial court in original actions, such findings are necessary”), such claims have been made in an attempt to delineate when the various standards of review are to be used in a writ action and are arguably dicta. It is difficult to imagine a scenario where it would actually be appropriate for an appellate court to decide questions of fact where the relevant facts are disputed, especially when the court is faced with the type of limited record found in a writ action. As this Court has more recently noted, writ decisions are inherently difficult in large part because they “necessitate[ ] an abbreviated record,” which “magnifies the chance of incorrect rulings that would prematurely and improperly cut off the rights of litigants.” Cox v. Braden, 266 S.W.3d 792, 795 (Ky.2008). “As such, the specter of injustice always hovers over writ proceedings, which explains why courts of this Commonwealth are — and should be — loath to grant the extraordinary writs unless absolutely necessary.” Id. Thus, any claims about the appropriateness of fact-finding by an appellate court in writ actions in this Court’s prior decisions were therefore at least slightly overstated.

The necessity for fact-finding in this case is underscored by the fact that this case presents novel questions of law related to standing and jurisdiction that can only be addressed after the factual complexities of the case have been clarified, such as who is actually the owner of a given domain name and the applicability of associational representation in an in rem proceeding.

One method of showing standing recited in the previous writ action, “by reference to the facts in the underlying litigation,” is inapplicable in this case. Though perhaps inartfully stated, this language was intended as a reference to factual findings that have been made by the trial court. But the Petitioners have not yet returned to the circuit court to even present the theories of standing discussed in our earlier decision denying the requested writ in this case, much less asked that court to resolve the apparent factual disputes upon which their standing claims depend.

Most telling about this case is the fact the Petitioners have developed their factual proof of standing further in this writ proceeding than at the underlying trial, where they have continued to conceal the identity of their members and the domain names that those members own. Rather than returning immediately to the appellate courts, the Petitioners could have more expediently reacted to the standing defect by returning to the Franklin Circuit Court and addressing the matter there.

Unfortunately, the Petitioners appear to want to skip several important procedural requirements to reach the substantive determination on the jurisdiction question, and perhaps this is understandable. Yet, if they were to demonstrate standing to the trial court, which in turn would allow that court to address their jurisdictional claims, the Petitioners might not even need to turn to the appellate courts, either for a writ or a direct appeal. There is certainly nothing so extraordinary about this case that it requires ignoring the very real questions about Petitioners’ standing to proceed any more so than all the other parties who have been required to show standing in every other court case.

At this point, this Court cannot justify granting a writ against the Franklin Circuit Court when that body has acted and ruled correctly thus far in this case regarding standing issues. The fundamental standing decision the court has made to this point is that neither the domain names themselves, nor the associations purporting to represent anonymous owners, had standing to contest the Commonwealth’s seizure. This Court employed the same logic in initially denying the writ of prohibition for lack of standing. Interactive Media Entm’t & Gaming Ass’n, 306 S.W.3d 32.

The circuit court has not yet had the opportunity to rule on the merits of the seizure (or the question of jurisdiction related to the seizure) because it has not heard from a party that could properly contest it. Nor has that court had a chance to address the question of standing in light of this Court’s prior decision addressing the possibility of showing associational standing and the associations’ most recent disclosures regarding their members’ ownership of some of the domain names. Allowing the trial court to fully develop the facts and applicable law is the best way to develop an adequate record for review by a higher court.

B. Transfer of the Writ Action

Though this Court has decided to grant the motion to transfer, it is necessary to note that the decision to do so is limited to the unique circumstances presented by this case (including the fact that this Court previously implied that such transfer “could” be granted, and that both the Court of Appeals and this Court have previously reviewed the record in this case). Transfer is appropriate to correct any imprecise language from our prior decision and to set this case on the correct path as soon as possible. Any further time spent litigating about standing and jurisdiction in the appellate courts at this point will be wasted, since the indisputable prerequisite that a writ action can only be taken by a party that has a stake in the underlying action remains a hurdle for the Petitioners. Until the circuit court determines that the domain owners or registrants are properly before the court, no one has established standing to proceed on a writ action.

C. This Court’s Discretion

Finally, it is worth noting that even if this Court believed that Petitioners had made a good showing in support of a finding of standing and had demonstrated a lack of jurisdiction at the circuit court, “the decision whether to grant a writ of prohibition lies in the sound discretion of the reviewing court.” Edwards v. Hickman, 237 S.W.3d 183, 189 (Ky.2007). Though this Court (and its predecessor) has been loath to deny a jurisdictional writ based solely on its discretionary power where a failure of subject matter jurisdiction has been established, see, e.g., Hoskins v. Maride, 150 S.W.3d 1, 11 (Ky.2004); Chamblee v. Rose, 249 S.W.2d 775, 777 (Ky.1952), it has continually asserted that whether to grant the writ is still discretionary. Even if the prerequisites for either class of writ are met, the reviewing court has the discretion to deny the writ, where prudence dictates doing so. Edwards, 237 S.W.3d at 189.

Even if the concerns outlined above did not require that this Court deny the requested writ, they would still persuade this Court to exercise its discretion to deny this writ. These considerations illuminate how this case is not ripe for resolution by this Court, especially not via the “extraordinary remedy” of a writ of prohibition. See Newell Enterprises, Inc. v. Bowling, 158 S.W.3d 750, 754 (Ky.2005) (“The writ of prohibition is such an ‘extraordinary remedy’ that Kentucky courts ‘have always been cautious and conservative both in entertaining petitions for and in granting such relief.’ ”).

III. Conclusion

Given the factual issues needing resolution, this Court cannot at this time determine IMEGA’s and IGC’s standing to pursue this writ action. The circuit court is best equipped to resolve those factual issues. The writ actions have been premature, since the standing questions are a hurdle to addressing the jurisdictional claims that the associations have raised. And, in turn, the standing questions raised at the trial court are a hurdle to addressing standing in the writ action. Having standing in the underlying action is a prerequisite to having standing in any original actions related to the underlying action.

Because the trial court has not had the opportunity to address Petitioners’ claims, both as to standing and jurisdiction, they cannot establish standing to pursue the writ they seek. For this reason, this Court grants transfer of the petition for a writ but denies the writ.

All sitting. All concur. MINTON, C.J., also concurs by separate opinion in which CUNNINGHAM, J., joins.

MINTON, C.J.,

concurring:

This is not an ordinary case for many reasons. First, the Court of Appeals has recommended transfer. Second, the Petitioners have requested transfer. Third, though the Commonwealth asks us to “summarily deny” the petition, our resolution today does not appear to harm any vital interest it may have in this matter. Fourth, and most importantly, I feel compelled to grant transfer because we, unfortunately, invited this motion to transfer in our earlier opinion in this matter. I agree with the majority’s characterization of our previous invitation as “conclusory dicta. ...” And I cannot fault the Petitioners for responding to our invitation by filing the motion before us today.

In short, I believe that the truly extraordinary and unique facts and procedural history of this case do not preclude us from granting transfer of this writ petition. So I respectfully concur with the majority’s decision today.

CUNNINGHAM, J., joins this concurring opinion.

ENTERED: September 23, 2010.

/s/ John D. Minton, Jr. Chief Justice


text:
    James Anthony RESKIN, Movant, v. KENTUCKY BAR ASSOCIATION, Respondent.
    No. 2010-SC-000510-KB.
    Supreme Court of Kentucky.
    Sept. 23, 2010.
   OPINION AND ORDER

James Anthony Reskin was admitted to the practice of law in the Commonwealth of Kentucky on February 21, 1992, and was temporarily suspended pursuant to SCR 3.166(1) on March 26, 2010. His bar roster address is 520 S. Fourth Ave., Suite 400, Louisville, Kentucky 40202. He moves this Court to enter an order permanently disbarring him from the practice of law, pursuant to SCR 3.480(3). The Kentucky Bar Association has no objection, and requests that we grant Reskin’s motion to resign under terms of permanent disbarment.

KBA File 18452

On January 15, 2009, Reskin was charged with conspiracy, obstruction of justice, wire fraud, securities fraud, and money laundering in the U.S. District Court for the Northern District of Oklahoma (Tulsa) in case number 09-CR-013-JHP. On March 25, 2010, Reskin entered a guilty plea as to one count of conspiracy to commit wire fraud, securities fraud and money laundering and one count of obstruction of justice. Pursuant to his guilty pleas, Reskin was automatically suspended from the practice of law in the Commonwealth, effective March 26, 2010.

By committing a criminal act reflecting adversely on his honesty, trustworthiness, or fitness as a lawyer in other respects, Reskin violated SCR 3.130-8.303). Furthermore, he violated SCR 3.130 — 8.3(c) by engaging in conduct involving dishonesty, fraud, deceit, and misrepresentation.

Reskin states that he understands that the provisions of SCR 3.500 and 3.510 do not apply and that he is not eligible to seek reinstatement to the practice of law in the Commonwealth.

Agreeing with Reskin and the KBA that Reskin’s motion to resign under terms of permanent disbarment is appropriate, it is hereby ORDERED that:

1. James Anthony Reskin is hereby permanently disbarred from the practice of law in the Commonwealth of Kentucky;
2. Pursuant to SCR 3.390, Reskin shall, within ten days from the entry of this Opinion and Order, notify all clients in writing of his inability to represent them, and notify all courts in which he has matters pending of his suspension from the practice of law, and furnish copies of said letters of notice to the Director of the KBA. Furthermore, to the extent possible and necessary, Reskin shall immediately cancel and cease any advertising activities in which he is engaged; and
3. In accordance with SCR 3.450, Res-kin shall pay all costs associated with these proceedings, said sum being $68.25, for which execution may issue from this Court upon finality of this Opinion and Order.

All sitting. All concur.

ENTERED: September 23, 2010.

/s/ John D. Minton, Jr. Chief Justice

      . As of July 15, 2009, this rule is found in SCR 3.130-8.4(b). Because Reskins’ violation occurred prior to the July 15, 2009 effective date of the current rules, the pre-July 15, 2009 rules are cited.

      . This rule is now found in 8.4(c)


author: KELLER, Judge.

text:
    Robert BAKER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2008-CA-001122-MR.
    Court of Appeals of Kentucky.
    March 19, 2010.
    Rehearing Denied Aug. 25, 2010.

      Jamesa J. Drake, Assistant Public Advocate, Frankfort, KY, for appellant.
    Jack Conway, Attorney General, Jeffrey A. Cross, Assistant Attorney General, Frankfort, ICY, for appellee.
    Before ACREE, CAPERTON and KELLER, Judges.
   OPINION

KELLER, Judge.

Robert Baker (Baker) appeals his convictions of first-degree trafficking in a controlled substance and possession of drug paraphernalia, second or subsequent offense, and for being a persistent felony offender in the first degree. The sole issue raised by Baker is whether the trial court improperly permitted the Commonwealth to bolster the testimony of one of its witnesses. Having reviewed the record and the arguments of counsel, we affirm.

FACTS

The underlying facts are not in dispute. On January 11, 2007, members of the Lexington Police Department met with Robert Wilson (Wilson) in order to conduct controlled purchases of illegal drugs. The officers searched Wilson and his automobile, equipped Wilson with a recording/listening device, gave Wilson a twenty dollar bill with which to make a purchase, and instructed Wilson where to make the purchase. Wilson drove to the area indicated and purchased a “rock” of crack cocaine from Baker, paying with the twenty dollar bill. After completing the purchase, Wilson left the area and gave officers the cocaine and a description of Baker. Officers then approached Baker, who dropped a twenty dollar bill over a nearby fence. One officer detained and searched Baker, finding a glass “crack pipe” in his pocket, while another officer retrieved the twenty dollar bill and confirmed it was the same bill provided to Wilson. While the officers were detaining and searching Baker, Wilson rode past the scene in a police car and identified Baker as the person who sold him the cocaine. A grand jury indicted Baker on the three charges listed above, and he stood trial. Prior to voir dire, Baker made an oral motion in limine seeking to keep the Commonwealth from bolstering Wilson’s testimony. Specifically, Baker asked the court

to prohibit the Commonwealth from improperly bolstering the credibility of the confidential informant.... They can only do what’s allowed under Rule 608, which is reputation or opinion, and I don’t want to hear any of this testimony along the lines of — he’s proved to be correct in the past because that’s all specific events, extrinsic evidence, which is prohibited by KRE ... 608.

The Commonwealth attorney responded that

at this point I had not anticipated asking that particular line of questioning [sic]. I did plan on asking him [Wilson] as well as the detective, Sergeant Simmons, if he’s testified in the past, those kinds of things. But that was as far as I was going with it at this point in time. If circumstances arise that the Commonwealth feels it needs to go further or ask additional questions ... then I will approach before I go into that line of questioning.

The court did not rule on Baker’s motion but asked Baker’s counsel if he “could live with that” and counsel responded that he could. Following that agreement, the parties selected a jury and proceeded with trial.

Baker’s complaints on appeal center around the testimony of the Commonwealth’s first witness, Sergeant Mark Simmons (Simmons). Simmons testified that he has been involved in more than one thousand investigations regarding illegal drugs, and that he often uses confidential informants. In this case, Simmons testified that he used Wilson, a paid informant. Without objection from Baker, and in keeping with the pre-trial agreement, Simmons testified that he had used Wilson in the past and that Wilson had worked as a paid informant since the late 1980’s.

Approximately five minutes later, the Commonwealth re-visited this line of questioning. Because it is key to this opinion, we set forth that testimony and related bench conferences in some detail.

When the Commonwealth asked Simmons how many times Wilson had been used as an informant, Baker’s counsel asked if the parties could approach the bench. The following discussion took place:

Baker’s counsel: This is the kind of thing I was talking about in my motion in limine. I think this is improper bolstering.
Commonwealth: All I’m asking him is how many times he’s used him and has he testified in court, which I had indicated this morning I would ask those questions. I’m not asking what’s the result of those cases. I’m not asking any of those kind [sic] of things but he’s entitled to indicate that he has used him before.
Baker’s counsel: He’s already testified to that. The specific number of occasions is probably more prejudicial than probative. It at least suggests credibility, certainly.
Commonwealth: I think that’s certainly permissible. I’m not asking him if he’s proved reliable in the past, which we have done in other cases. I’m not asking him that. I’m not asking what the results ... have been. But he’s certainly entitled to say we have used him on several occasions. My follow-up question ... has he testified before? That’s it. He’s certainly [entitled] to answer those questions.

Referring to KRE 608, the court stated that the Commonwealth’s question went “more to factual background” than opinion or reputation for credibility. The court indicated the question would not “invite a response by Sgt. Simmons about what he thinks the reputation of the guy is ... what his opinion of his reputation is.” The court went on to state that the Commonwealth was entitled to show that Wilson had been used in the past and why he was used.

Baker’s counsel then argued that the question had no relevance and that any relevance would be outweighed by the prejudicial nature of the evidence. The court disagreed and permitted the Commonwealth to proceed with its questioning of Simmons. That testimony follows.

Commonwealth: Sgt. Simmons, I was asking you about your use of Robert Wilson. Do you know about how many times you have used him as an informant?
Simmons: I can estimate it’s been over 200 cases that he’s made for us. Commonwealth: And has he testified in court regarding the buys that he has made?
Simmons: Yes, ma’am.
Commonwealth: Does he perform work just for the Lexington police department?
Simmons: No, ma’am. He works with other agencies as well.
Baker’s counsel: Can we approach, your honor?

During the ensuing bench conference, the following took place:

Baker’s counsel: She specifically said she was only going to ask two more questions, and she asked a third question based on the specific same line. So I object and move for a mistrial on the grounds the question shouldn’t have been asked. Did you not stand here ... ten seconds ago and say, “I’ll ask two questions — how many times, has he ever testified?”
Commonwealth: I did not have my list of questions with me, first of all. Second of all, I did not specifically — your— the motion in limine was going specifically to what do you think about his reputation? What do you think about his credibility? Has he done a good job in the past in terms of conviction rate? I mean, that’s where you’re going in terms of asking ...
Court: What would be the objection to the “Have you [sic] worked for other agencies?”
Baker’s counsel: I mean, it’s a specific incidence of conduct used to bolster credibility which can’t be proved by extrinsic evidence. 608(b) is crystal clear on that.
Commonwealth: If I specifically asked, did he testify in this particular case— what was the result in that case? That’s a specific incident of conduct ... the same way I’m asking about — tell me about your employment, tell me about how long you’ve been with the police department. The same questions I can ask Mr. Baker [sic] — have you testified? Or, have you worked for the police department before? Every one of those goes to him, his background ...
Baker’s counsel: Articulate a defensible ... how that is relevant that he ... works for other organizations.... How is that relevant?
Commonwealth: Because it distinguished him as a person who does this kind of work versus somebody we just dragged up off the street and sent in there. The jury’s entitled to know who he is.
Court. I’m going to overrule the objection. I’ve looked again at 608(b). I don’t think that a general question about — does he work for other agencies — I don’t think that’s the specific instance of the conduct of a witness that’s addressed in 608(b). So I’m going to overrule the objection.

Simmons then testified that Wilson did work for other agencies.

In addition to the preceding, Simmons testified regarding the drug buy and Baker’s arrest. Because that testimony is not particularly pertinent to this appeal, we will not summarize it.

The Commonwealth next called Wilson. Wilson testified that he had been a paid informant for the Lexington-Fayette County Police Department since the early 1980’s, that he had previously testified on behalf of the Commonwealth, and that he also worked for another police agency. Wilson stated that, on January 11, 2007, Simmons called him and asked him if he would be willing to try to purchase illegal drugs as part of a police operation. Wilson agreed and, after being searched and equipped with a recording device, he drove through a Lexington neighborhood in search of drug dealers.

Wilson testified that Baker and a woman flagged him down, approached him, and told him to pull off onto a nearby street. Wilson did so. Wilson and Baker had a discussion about drugs then Baker and the woman walked down the street to an apartment. The woman returned and got into Wilson’s car. Baker then returned, got into Wilson’s car, showed the cocaine to Wilson, and Wilson gave Baker the twenty dollar bill in exchange for the cocaine. After some additional discussion about “sexual favors” and the purchase of additional cocaine, Baker and the woman got out of the car, and Wilson drove away.

After making the purchase, Wilson returned to meet with the police, and gave the officers the cocaine. Officers stopped Baker and his companion, and Wilson returned to the scene and identified Baker as the person from whom he purchased the cocaine. At trial, Wilson also identified Baker and authenticated an audio tape of the transaction, which the Commonwealth played to the jury.

After Wilson testified, other police officers testified regarding Baker’s detention and arrest and that Baker had been observed throwing the “marked” twenty dollar bill onto the ground. Baker did not testify and, as noted above, a jury convicted him on all charges.

STANDARD OF REVIEW

The standard of review on evidentiary issues is abuse of discretion. Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky.2007); and Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999). “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky.2000). With this standard in mind, we address the sole issue raised on appeal.

ANALYSIS

On appeal, Baker argues that the admission of Simmons’s testimony about: (1) how many times he used Wilson as an informant; (2) whether Wilson had previously testified in court; and (3) whether Wilson worked for other agencies as an informant was error under KRE 404 and 608. Because the questions and answers to those questions differ in impact, we address them separately.

We begin our analysis by examining the law, which is common to all three questions/answers. KRE 404 provides that “[ejvidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except” as provided in KRE 607, 608, and 609. Because neither KRE 607 nor 609 apply, we only address KRE 608. KRE 608(a) provides that

[t]he credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

KRE 608(b) provides that “[sjpecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence.” However, such instances of conduct may be inquired into on cross-examination if they concern “the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.”

As noted by the parties, the most recent and most nearly similar Supreme Court of Kentucky opinion dealing with the preceding rules of evidence is Fairrow v. Commonwealth, 175 S.W.3d 601 (Ky.2005). In Fairrow, as herein, the Commonwealth questioned a police officer regarding his use of an informant. Specifically, the Commonwealth asked the officer if he had used the informant in the past and if “[t]he cases that she worked ... [had] positive results[.]” The officer responded that he had used the informant “numerous” times and that “[e]very case I am aware of resulted in a conviction.” Id. at 605. Fair-row argued that this testimony amounted to inadmissible character evidence.

In addressing Fairrow’s argument, the Supreme Court first held that the officer’s testimony that the informant “was a reliable informant whose work had always resulted in convictions was inadmissible character evidence under KRE 404(a).” The Court then addressed whether the testimony was admissible under KRE 608. Initially, the Court noted that, KRE 608(a)(2) provides that “evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked[.]” Id., citing KRE 608(a)(2). Because the officer was the first witness and the informant’s credibility had not been attacked, any testimony regarding the informant’s credibility was not admissible under KRE 608(a). Id. at 606. However, the Court noted that, when the informant did testify, her credibility was attacked; therefore, the admission of credibility evidence prior to that attack was harmless. Id.

The Court did not stop its analysis there, noting that the officer’s testimony went to the informant’s reliability, not to her character for truthfulness. Under a “reliability” analysis, the Court determined that the testimony was inadmissible for two reasons. First, the Court stated that “[t]he evidence was offered to prove that [the informant] had accomplished two more successful ‘buys’ from [Fairrow] for which he should be convicted.” The Court concluded that admission of the testimony for that reason was error.

Second, the Court held that, “[i]n limited circumstances, specific instances of conduct may be admissible as character evidence.” Those circumstances — when a person’s character is an essential element of a charge, claim, or defense under KRE 405(c); and when elicited on cross-examination under KRE 608(b) — were not present. Id. at 607. Therefore, the Court concluded that the officer’s testimony that the informant’s “work with the police always resulted in convictions was inadmissible.” Id. In so doing, the Court cited favorably to United States v. Murray, 103 F.3d 310, 321-23 (3d Cir.1997), wherein the United States Third Circuit Court of Appeals held that testimony about an informant’s reliability violated Federal Rule of Evidence 608(b), which is essentially the same as KRE 608(b). Having determined that the trial court erred, the Supreme Court did not reverse because Fairrow had not properly preserved the issue and the error was not palpable.

With the preceding in mind, we address the arguments made by Baker and the Commonwealth. Initially, we note that we agree with the Commonwealth that Baker waived any objection to the Commonwealth’s question regarding whether Wilson had testified in the past. The trial court specifically asked Baker’s counsel if he “could live with” that question and he responded that he could. Therefore, he cannot now argue that question was improper.

We also agree with the Commonwealth that there is a difference between Fairrow and the case herein. In the case herein, the Commonwealth did not specifically ask Simmons whether Wilson had been effective or reliable in the past. Therefore, the Commonwealth did not violate the specific prohibition set forth in Fairrow. However, the questions by the Commonwealth and the answers given by Simmons implied what the Commonwealth could not ask outright — that Wilson was both reliable and effective. Thus, the issue before us is whether the Commonwealth’s questions and Simmons’s answers regarding the number of cases in which Simmons used Wilson and whether Wilson worked for any other agencies violated the spirit of Fairrow. We hold that they did.

The trial court determined that the first question, how many times Simmons had worked with Wilson in the past, sought permissible background information. We agree with the trial court that the question, in and of itself, simply sought background information. Furthermore, such background information is admissible so that a jury has some context within which to make its judgments. See Robert G. Lawson, The Kentucky Evidence Law Handbook § 2.05[3] at 81 (4th ed.2003). However, we disagree with the trial court’s assessment that such a question would not invite an inappropriate response. Simmons’s answer, that Wilson had “made” more than 200 cases, went directly to Wilson’s reliability and was the type of evidence the Supreme Court condemned in Fairrow. Therefore, while the question may not have been impermissible, the question, coupled with Simmons’s answer, was impermissible and it was error for the trial court to admit Simmons’s answer in evidence.

In defense of the second question at issue — whether Wilson worked for any other law enforcement agencies — the Commonwealth made two arguments at trial. First, the Commonwealth stated that it was simply asking Simmons the same questions about Wilson’s background that it could ask Wilson. That may be true; however, a question that is appropriate for one witness is not necessarily appropriate for another. For example, a witness who is not testifying as an expert may give only limited opinion testimony. KRE 701. Therefore, a question appropriate for an expert would not be appropriate for a non-expert witness. Similarly, questions to Wilson about his background may be appropriate while those same questions to Simmons may amount to bolstering. Therefore, that argument by the Commonwealth is not persuasive.

The second argument the Commonwealth made was that the question was designed to establish that Wilson was “a person who does this kind of work versus somebody we just dragged up off the street and sent in there.” Thus, the Commonwealth was arguing that Simmons’s testimony was necessary to establish Wilson’s credentials, in other words, to prove his reliability. As admitted by the Commonwealth at trial, it was trying to accomplish precisely what Fairrow forbids. Therefore, we hold that the trial court erred when it permitted the Commonwealth to ask Simmons whether Wilson worked for any other law enforcement agencies and when it permitted Simmons to respond as he did.

Having determined that the trial court erred when it admitted Simmons’s answer that Wilson “made” more than 200 cases and when it permitted the Commonwealth to ask Simmons if Wilson worked for other agencies, we must next determine whether these are reversible errors. Having reviewed the evidence as a whole, we conclude that they were not.

KRE 103(a) provides that “[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected[.]” In other words, a defendant is entitled to a fundamentally fair trial, not a perfect one. Chumbler v. Commonwealth, 905 S.W.2d 488, 504 (Ky.1995). To decide if an error or errors denied a defendant a fundamentally fair trial, the court must determine if, looking at the ease as a whole, there is a substantial possibility that the evidence complained of contributed to the conviction. Jarvis v. Commonwealth, 960 S.W.2d 466, 471 (Ky.1998); see also Commonwealth v. McIntosh, 646 S.W.2d 43, 45 (Ky.1983). “[I]f upon consideration of the whole case it does not appear that there is a substantial possibility that the result would have been any different, the error will be held non-prejudicial.” Gosser v. Commonwealth, 31 S.W.3d 897, 903 (Ky.2000).

We have held that the trial court erred when it permitted the Commonwealth to ask two questions and when it permitted Simmons to respond to those questions. We must now determine if those errors had a substantial impact on the result. In doing so, we look to all of the evidence, absent those two answers. With regard to his “background,” Wilson testified that he had worked as an informant since the early 1980’s; that he was paid for his work; that he had worked with Simmons on a number of occasions; that he worked for other law enforcement agencies; and that he had testified in the past. With regard to his efforts in this case, Wilson testified that he was searched before and after his encounter with Baker; that he was wearing a “wire” so that the encounter could be recorded; that the transaction was being monitored by the police; that he purchased crack cocaine from Baker with the twenty dollar bill provided to him by Simmons; and that he identified Baker immediately after the purchase. One of the arresting officers testified that he saw Baker drop a twenty dollar bill over a fence; that he recovered the bill; that the bill matched the one that had been given to Wilson; and that Baker had a crack pipe in his pocket when arrested. Although we believe the Commonwealth’s questions and Simmons’s answers were improper and unnecessary, particularly in light of Wilson’s unrebutted testimony on the same issues, in light of the overwhelming evidence of Baker’s guilt, we cannot say there is a substantial likelihood the jury would have come to a different conclusion absent those errors. Therefore, we affirm the trial court.

Finally, we feel compelled to comment on the Commonwealth’s actions in this case. First, we note that, while we held that the errors in this case were harmless, it was a close call and the result may not always be so favorable to the Commonwealth. The Commonwealth could have and did obtain the same testimony from Wilson regarding his background that it obtained from Simmons. Therefore, the Commonwealth had no need to tread on the fine line between admissible background information and impermissible bolstering, potentially jeopardizing an otherwise appropriate conviction.

Second, we note that the Commonwealth twice violated agreements it had made. A.S noted above, the Commonwealth stated that it would only ask Simmons general questions about whether he had worked with Wilson and whether Wilson had testified in the past. It agreed that, if it felt the need to go beyond that, it would approach the bench and receive permission before proceeding. However, the Commonwealth went beyond the agreed-to parameters when it asked how many times Simmons had worked with Wilson, without first approaching the bench. Then, after agreeing that it would ask only two more questions, the Commonwealth asked a third. This behavior by the Commonwealth is troublesome and we encourage the trial court to control it.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed.

ALL CONCUR.

      . Kentucky Rules of Evidence.


author: THOMPSON, Judge:

text:
    Ruth Ann CAMPBELL, Widow of Darlis Campbell, Deceased, Appellant, v. HAULER’S INC.; Hon. John B. Coleman, Administrative Law Judge; and Workers’ Compensation Board, Appellees. Hauler’s Inc., Cross-Appellant, v. Ruth Ann Campbell, Widow of Darlis Campbell, Deceased; Hon. John B. Coleman, Administrative Law Judge; and Workers’ Compensation Board, Cross-Appellees.
    Nos. 2009-CA-001727-WC, 2009-CA-001889-WC.
    Court of Appeals of Kentucky.
    Sept. 3, 2010.

      McKinnley Morgan, London, KY, for appellant.
    H. Brett Stonecipher, Lexington, KY, for appellee, Hauler’s Inc.
    Before COMBS, LAMBERT, and THOMPSON, Judges.
   OPINION

THOMPSON, Judge:

This is an appeal and cross-appeal from an opinion of the Workers’ Compensation Board that reversed in part, vacated in part, and remanded the claim to the Administrative Law Judge for further findings of fact. The sole issue in this appeal and cross-appeal is whether the Workers’ Compensation Board has the right to remand the opinion of the ALJ to the ALJ for further findings of fact. We conclude that this is within the absolute discretion of the Workers’ Compensation Board and that future appeals on this issue may be considered by this Court as frivolous.

We emphasize that we do not decide whether the original opinion of the ALJ was incorrect. The ALJ based his opinion upon the testimony of Dr. George Nichols, former Kentucky Medical Examiner, which could constitute sufficient evidence for the decision by the ALJ. However, the Workers’ Compensation Board has the absolute discretion to request further findings of fact from an ALJ. Therefore, we find no error and affirm.

Ruth Ann Campbell, the widow of Darlis Campbell, filed a claim for survivor benefits as a result of her husband’s fatal heart attack that occurred while he was operating a dump truck during the course of his employment. The contested issues are whether Campbell’s heart attack arose out of the course and scope of his employment with Hauler’s Inc. and whether Ms. Campbell is entitled to two years of widow’s benefits.

This case presents an unusual fact situation and one that renders the issue of causation problematic to resolve. On the date of his death, Mr. Campbell was fifty-two years old and was morbidly obese. He suffered his first heart attack at age sixteen and had been seeing Dr. Reddy, a cardiologist, every three months.

At the time of his heart attack on March 12, 2007, Mr. Campbell was operating a Hauler’s Inc. dump truck northbound on 1-75 in a three-truck convoy. Scott Wel-born was operating the lead truck in the left hand lane and Campbell followed in the right hand lane. Tim Curry followed Campbell in the same lane.

Welborn testified that Campbell was approximately three car lengths behind him in the right lane and Curry about three car lengths behind Campbell traveling 45-50 mph. When the convoy approached a construction zone, Welborn was required to merge into the right lane. In preparation, Welborn viewed into his right mirror and saw Campbell slumped into the passenger seat. He looked a second time and saw that Campbell remained slumped into the passenger seat. When he looked a third time, the accident had occurred. He estimated that one minute had passed between the first time he saw Campbell and the accident. After the accident, he approached Campbell’s truck and found Campbell lying over the shifting mechanism with his head and shoulders in the passenger side of the floorboard.

Curry testified that he was directly behind Campbell and ultimately rear-ended Campbell’s truck. He estimated that he was traveling 60-65 mph at the time of the accident and explained that Campbell’s truck suddenly stopped without warning.

Following the impact, Campbell’s and Curry’s trucks crossed the median and entered the southbound lanes before resting against an embankment. Curry looked into Campbell’s truck as they went across the median but could not see Campbell. When he approached Campbell’s truck immediately after the accident, Campbell was slumped from his seat to the passenger floorboard and his face was purple.

Curry was allowed to speculate as to how he believed the accident occurred. He testified that he believed Campbell had a heart attack and reached for his hand break. However, he failed to grab the hand brake and fell in the passenger side. He further testified that Campbell would not have been able to see behind him when he was slumped over and, thus, would not know that Curry’s truck was about to strike his truck.

An autopsy was performed by Dr. Jennifer Schott who opined that Campbell died from atherosclerotic and hypertensive cardiovascular disease, with obesity as the contributing cause of death which she listed as “natural.”

Ms. Campbell’s medical evidence consisted of four letters issued by Dr. George Nichols, a pathologist. In his initial letter dated June 23, 2008, he agreed with Dr. Schott as to the cause of death. He further noted that from his review of the autopsy report, the death certificate, and Campbell’s medical records, Campbell’s heart was improperly pumping blood prior to the collision. However, he stated that he could not make a final determination regarding the manner of death until he studied the accident report and witness statements.

In a letter dated one week later addressed to the widow’s counsel, Dr. Nichols opined that the knowledge of the impending collision could have caused Campbell’s heart attack.

In a letter dated August 5, 2008, Dr. Nichols indicated that he had visited the accident scene and that slowing or stopping in the traffic lane represents conscious activity by Campbell. As a consequence, he opined that the collision and events surrounding the accident were substantial contributing factors to Campbell’s death.

Finally, in a letter dated September 3, 2008, Dr. Nichols opined that based on the autopsy, Campbell died after impact. He concluded as follows:

It is my opinion that no traumatic injuries of lethal proportion are present. The cause of death, in my opinion, is cardiac rhythm disturbance due to existing heart disease, pre-crash anxiety and post-crash catecholamine surge. The events surrounding the crash were substantial contributing factors leading to his death.

Dr. Hal Skinner, a cardiologist, offered his opinion as to Campbell’s death and disagreed with Dr. Nichols. After noting that Campbell was morbidly obese and had a history of nonischemic cardiomyopathy, he opined that:

It is not possible within a reasonable probability to causally relate Mr. Campbell’s cardiac arrest to either his specific work on the date of death or to his general duties as part of his occupation.

He specifically rejected Dr. Nichols’ opinions:

This case was reviewed by Dr. George Nichols who indicated that Mr. Campbell was alive following the motor vehicle accident as evidenced by hemorrhages and concluded that the shock of the wreck as well as the anxiety he experienced in anticipation of the wreck were substantially contributing factors to his death. I profoundly disagree with the findings of Dr. Nichols. From the evidence of the case, it is clear that the patient suffered from a major cardiac event prior to the wreck and this was likely an arrhythmia ventricular tachycardia or ventricular fibrillation, it still could have been several minutes during which the heart continued to pump blood before all cardiac function ceased. Certainly there would have been plenty of time after the initial event for the patient’s vehicle to be hit by the other car and to have suffered the lacerations occurring while the heart was still functioning albeit in a terminal status.

The ALJ reviewed the evidence and was persuaded by Dr. Nichols’ opinion. In his final opinion and award, he expressed his findings regarding causation as follows:

Piecing together this evidence, a likely scenario is that the plaintiff was reaching for something in his seat and may have been temporarily non-attentive to the traffic conditions. He then likely slammed his brake in an effort to avoid what he thought was an impending collision after he looked up from his seat.

The ALJ awarded a one-time lump sum benefit pursuant to KRS 842.750(6) and awarded fifty percent of Campbell’s average weekly wage pursuant to KRS 342.750(1)(a).

Hauler’s Inc. timely filed a petition for reconsideration requesting additional findings. After the ALJ denied the petition, Hauler’s Inc. appealed to the Board.

The Board reversed in part, vacated in part, and remanded the matter to the ALJ with instructions that the issue of causation be readdressed and to render specific findings of fact as to how the accident occurred. It further held that KRS 342.730(4), which provides a minimum of two years of widow’s benefits, applies only to an employee. Because Ms. Campbell was born on July 9, 1944, and qualified to receive Social Security benefits, the Board found that she was ineligible for widow’s income benefits.

Ms. Campbell argues that the ALJ’s award was based on substantial evidence and, accordingly, should have been affirmed by the Board. She also contends that the Board erred as a matter of law when it reversed the ALJ’s award of two-years’ weekly widow’s income benefits. Hauler’s Inc. cross-appeals contending that the Board erred when it remanded the matter to the ALJ for additional findings and, instead, should have remanded with directions that the case be dismissed because there is no evidence that Campbell’s heart attack was work-related.

We first discuss Ms. Campbell’s contention that there was substantial evidence to support the ALJ’s conclusion that Campbell’s heart attack was caused by the anxiety of the pending collision and a post-crash adrenaline surge or whether the heart attack occurred and Campbell died prior to the accident.

In workers’ compensation claims, the claimant bears the burden of proof with regard to every element of the claim. Durham v. Peabody Coal Co., 272 S.W.3d 192 (Ky.2008). Because Ms. Campbell was the party with the burden of proof and was successful before the ALJ, the ALJ’s conclusion must be affirmed if supported by substantial evidence. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky.1986). Substantial evidence is “evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men.” Smyzer v. B.F. Goodrich Chemical Co., 474 S.W.2d 367, 369 (Ky.1971). However, the Board concluded that the ALJ failed to articulate the substantial evidence that supported his determination that the accident caused the fatal heart attack. We agree.

The fact that Campbell’s heart attack occurred while at work does not, in and of itself, establish causation. Roberts v. Estep, 845 S.W.2d 544, 547 (Ky.1993). In heart attack cases, causation is a factual determination based on a legal concept for the purpose of determining whether or not the work was the legal cause or only the stage on which an inevitable tragedy occurred. Hudson v. Owens, 439 S.W.2d 565, 570 (Ky.1969). Indeed, proving causation is often elusive and requires that the fact-finder review the medical evidence and non-medical evidence. It is imperative that the fact-finder support his or her “conclusions with facts drawn from the evidence in each case so that both sides may be dealt with fairly and be properly apprised of the basis for the decision.” Shields v. Pittsburgh and Midway Coal Min. Co., 634 S.W.2d 440, 443 (Ky.App.1982).

The Board reviewed the evidence and, after emphasizing that it is not its role to make findings of fact, concluded that Hauler’s Inc.’s request for additional findings of fact should have been granted. The Board explained:

After careful examination of the ALJ’s opinion and award and the entire record, this Board cannot say that the ALJ has adequately articulated the causal connection between the accident and Campbell’s fatal heart attack. While the ALJ concluded that the “likely” scenario is that Campbell looked up to what he believed was an imminent accident and slammed on his brakes, the record does not reveal a shred of evidence in support of this conclusion. Additionally, after a careful review of the final opinion and award, the Board cannot ascertain what “impending collision” the ALJ believed shocked Campbell into the fatal cardiac event if Campbell did in fact look up.

Without additional findings of fact by the ALJ, the Board and this Court are unable to afford meaningful review of the basis for the ALJ’s conclusion regarding the cause of Campbell’s heart attack. As a result, the Board declined to address the substantial evidence question and, instead, remanded the matter to the ALJ for additional findings. We agree with the Board that under the difficult factual questions regarding causation, that a remand to the ALJ for further findings is warranted. We, therefore, affirm.

Finally, we address the Board’s resolution of the issue regarding the award of two years of widow’s income benefits. The issue presents a question of statutory construction and, therefore, is subject to de novo review. Wilson v. SKW Alloys, Inc., 893 S.W.2d 800, 801-802 (Ky.App.1995). We are guided in our review by the rule of statutory construction that if the language of the statute is “clear and unambiguous and if applying the plain meaning of the words would not lead to an absurd result, further interpretation is unwarranted.” Autozone, Inc. v. Brewer, 127 S.W.3d 653, 655 (Ky.2004).

KRS 342.750(1)(a) provides weekly income benefits of fifty percent of the worker’s average weekly wage to be paid to the widow of a deceased worker with no dependent children, as in the present case. However, the statute further states: “All benefits awarded pursuant to this section, other than those provided in subsection (6) of this section, shall be subject to the limitations contained in KRS 342.730(4).” KRS 342.730(4) states as follows:

All income benefits payable pursuant to this chapter shall terminate as of the date upon which the employee qualifies for normal old-age Social Security retirement benefits under the United States Social Security Act, 42 U.S.C. secs. 301 to 1397f, or two (2) years after the employee’s injury or last exposure, whichever last occurs. In like manner all income benefits payable pursuant to this chapter to spouses and dependents shall terminate when such spouses and dependents qualify for benefits under the United States Social Security Act by reason of the fact that the worker upon whose earnings entitlement is based would have qualified for normal old-age Social Security retirement benefits.

KRS 342.730(4). Because Ms. Campbell was sixty-two years old at the time of her husband’s death and qualified for Social Security benefits under 42 U.S.C.A. § 402(e), Hauler’s Inc. argues that she was not entitled to income benefits. We agree.

In Morsey, Inc. v. Frazier, 245 S.W.3d 757 (Ky.2008), the Court held that a widow’s award of income benefits terminated when she qualified for Social Security benefits. Thus, following Morsey, Ms. Campbell was not eligible to receive income benefits. Nevertheless, the ALJ held that the two-year provision contained in the first sentence of KRS 342.730(4) applied. However, the clear and unambiguous language of the statute states that the two-year provision applies to income benefits awarded to employees and is not contained in the sentence applicable to spouses and dependents. Therefore, the only reasonable interpretation of the statute is that the legislature did not intend for spouses and dependents to qualify for a minimum two years of income benefits.

Based on the foregoing, the opinion of the Workers’ Compensation Board is affirmed.

LAMBERT, Judge, concurs.

COMBS, Judge, concurs in result only.


author: PER CURIAM:

text:
    Neal David RICKER, Appellant, v. STATE of Missouri, Respondent.
    No. WD 71852.
    Missouri Court of Appeals, Western District.
    Aug. 3, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 28, 2010.
    Neal David Ricker, appellant Pro Se.
    Shaun J. Mackelprang and Jamie P. Rasmussen, Jefferson City, MO, for respondent.
    Before Division Three: VICTOR C. HOWARD, Presiding Judge, THOMAS H. NEWTON, Judge and GARY D. WITT, Judge.
   ORDER

PER CURIAM:

Neal David Ricker filed a motion to reopen his post-conviction relief proceedings, which was denied by the motion court. Ricker now appeals.

We affirm. Rule 84.160b). A memorandum setting forth the reasons for this order has been provided to the parties.