All posts by Chris Spedding

Body in a Barrel? Fayette County’s Strange Case

 

A sensational murder case has finally been put to rest (at least on the state level) by a decision of the Kentucky Supreme Court.

You may remember the case. The  killer, Robert Markham Taylor stuffed the body of the victim, Alex Johnson in a barrel after killing him and dumped the barrel and the body in the Kentucky river. Apparently it was a drug related killing as Taylor went to Johnson’s home after the killing and hauled away two garbage bags with approximately 26 pounds of marijuana in them

I watched some of the trial and it was definitely interesting. I guess only a criminal defense attorney would call a murder trial interesting. The defense and prosecution did a good job. It was a tragic case.

Read more about the case and the decision by clicking on the link below.

http://UK chef’s murderer fails to convince Supreme Court that he was wrongly convicted http://www.kentucky.com/news/local/crime/article182486266.html

Prior Damage Disclosure: How does As-Is Fit in for the Dealer.

 

 

Let’s face it. Disclosing prior damage to a vehicle in a dealer’s inventory is a nightmare. Under Kentucky law,  and in its simplest terms, the seller of a motor vehicle, be it an individual or dealer, is required to disclose all damage to the vehicle of which the seller has direct knowledge that result in repairs in excess of $2000.00. This duty applies to all repairs except for wheels, tires and glass that occur while it is in the seller’s possession and prior to delivery to the buyer. The disclosure has to be in writing, signed by the buyer. KRS 186A.540. As most readers know, the legislature upped the amount of damage to $2000 in the 2017 legislative session.

So how does this statute square with an As-Is clause in a contract. In Evans v. JNT, Inc. 2015 WL 4967254 the Kentucky Court of Appeals dealt with a case that involved the damage disclosure statute and the As-Is clause in a contract. Almost every lawsuit that I have seen filed against a dealership made the following claims: 1) breach of contract;2) intentional misrepresentation; 3) negligent misrepresentation; 4) breach of express and implied warranties’ and of course, violation of the Kentucky Consumer Protection Act  and failure to disclose prior damage. These claims are cookie cutter for consumer attorneys and quite frankly, are a handful to defend.

The Evans decision chalked one up for the good guys. At least partially. In short,  Evans  found that an As-Is clause protects the seller from claims involving express or implied warranties, breach of contract and negligent representation. It didn’t protect the seller from intentional misrepresentation or KCPA claims, however. Additionally, the court held that KRS 186A.540 creates an affirmative duty on the seller to disclose all damage of which it has direct knowledge including cumulative damage and warranty repairs regardless of whether or not the repairs were billed to the seller.

The use of of AS-IS clauses in a sales contract is an absolute must for a dealership to use. As you can see, it insulates the dealership from many claims but it will not help avoid fraud claims. It puts more of a burden on the buyer to prove fraud, but it doesn’t prevent them.

So what does all this mean? Practically speaking, disclose damage, use AS-IS clauses and never use the words “perfect condition” when describing a vehicle. “As far as I know” are the buzz words to use.

Who is In Charge of a Defendant’s Trial?

The article below deals with a situation that can always put a lawyer representing a client at trial in a predicament. Who calls the shots? You are hired to do a job and there can be a conflict in how you do that job. Do you hire a contractor and tell them how to frame the house? What would the contractor do?

In this case, the Defendant faced the death penalty. The lawyer was trying to spare him death and felt that admitting to the jury that his client committed the client was a sound strategy to save him from the death penalty. The client wanted to maintain a defense that he was innocent. Obviously, the lawyer knew that defense wouldn’t work.

Trial strategy goes a long way in protecting a lawyer from challenges about the job that he/she does at trial. It is a situation you never want to be in, but is inevitable. The family hiring you puts you in any even greater predicament because ethically, just because a third party hires you, you are representing your client and the wishes of the third party matter not.

Would this lawyer’s strategy have worked if the client had testified at trial and acknowledged that he committed the crime? The prosecution assuredly had plenty to cross-examine him with.

Read the article. It is interesting.

 

https://l.facebook.com/l.php?u=http%3A%2F%2Fwtop.com%2Fsupreme-court%2F2017%2F09%2Fcourt-to-rule-when-lawyer-says-guilty-but-client-objects%2F&h=ATPn83f3GLlamcsWuAx5RoUprh8-yNJ6-onuCry1SFhdWtwGprLx5Bf_hykAGPoL9Wb4z2BCs-WApgPqICR_CSzRAag6ydUQkQGu2gKS1w&s=1&enc=AZMJTq-32GlY4KseH9ONsXikj6bATGrnkPQqw7F-be3F3n5y08rWvjWWAXHFdgWKTGnp5ORKciJB0uywTcrhLmeW

Kentucky Supreme Court Rules on the 10 year “Lookback” period

http://opinions.kycourts.net/sc/2016-SC-000530-TG.pdf

Today, the Kentucky Supreme Court issued its opinion regarding the statutory “Look Back” rule. The practical effect of this opinion is this: prior to the state legislature passing this law, the state of Kentucky punished people more harshly if they were arrested for multiple DUIs within a 5 year period. After the 5 year period, any convictions that were older than 5 years could not be used against you to enhance the penalties for a subsequent offense. Under the new law, the enhancement period is now 10 years so even if it has been over 5 years since your last offense,  any new offense will be enhanced. The defense bar challenged the law primarily using contract law and ex post facto but obviously lost. Read the opinion. 

It Happens Everywhere: Shooting at Fayette Mall

Back in the late ’80s-early ’90s, I worked for Loss Prevention at Lazarus Department Store here in Lexington. Believe it or not, we used to “throw down” fairly regularly with people we would catch shoplifting. I worked there for 4 years and never saw a gun nor did I hear of one at Fayette Mall. While apparently this incident didn’t involve a shoplifter, it remains disturbing. See the article below for more details.

http://www.kentucky.com/news/local/crime/article163143393.html

Distasteful to Some…

Sex offenses are generally a taboo subject. But if you are involved in the legal system, how to deal with them from a procedural standpoint and a monitoring standpoint post-conviction, is a nightmare and most inefficient. See how one court views sex offender registration by reading below.

 

 

https://l.facebook.com/l.php?u=http%3A%2F%2Fccresourcecenter.org%2F2017%2F07%2F19%2Fpa-high-court-holds-sex-offender-registration-unconstitutional%2F&h=ATPs3Fi5MmhTEAdMC_ZH9AgJjQkp9JklngYNbMujcyxyKYn-E_Y0sXl51kfhe69BKPm_mAhQcehRkuNGpnh5YUk9VjJMxl-owHYDLmkCj0I&s=1&enc=AZOOg9qJVGdOQg7K47eqwfAfiPA3aQUkCApOJIaPnCydNrzfAJ10Y8pzHPNVXpRg-lErD8fc7DqB3J7VZMDMFaFV