COA: June 2016 Oral Argument Calendar for Court of Appeals

Scheduled dates for oral arguments: June 14 (Frankfort); June 28 (Frankfort)

Third Breathitt County Courthouse. Located in Jackson, Kentucky. Two-story brick Victorian structure was built in 1876-77, and was remodeled first in 1899 and later in 1912. Clock tower added in 1912 remodeling. Condemned and dismantled in 1958. Image of postcard courtesy of Keith Vincent, www.CourtHouseHistory.com.

Third Breathitt County Courthouse. Located in Jackson, Kentucky. Two-story brick Victorian structure was built in 1876-77, and was remodeled first in 1899 and later in 1912. Clock tower added in 1912 remodeling. Condemned and dismantled in 1958.
Image of postcard courtesy of Keith Vincent, www.CourtHouseHistory.com.

Click here for a complete list of our posts for COA Arguments and here for those for SCOKY.

Some issues for the month of JUNE 2016 are:

  • Civil; Breach of Fiduciary Duty: Whether appeal was taken from a final order; Whether joint and several liability was proper; Whether issue preclusion /collateral estoppel was properly applied; Was the award of pre-judgment interest proper; Whether the judgment is void for uncertainty.  Jun 14.

  • Commonwealth appeals from jnov acquitting def. of failure to comply with sex offender registration & PFO I. Sufficiency of evidence warranting submission of charge to jury. Jun 14.

  • Family law case: Whether the family court failed to comply with KRS Chapter 600 and erred in its determination that child was neglected or abused. Jun 14.

  • Hardin Co., KY d/b/a Hardin Memorial Hospital, et al. v. The Visitation Birth and Family Wellness Center, Inc., et al. Jun 28.

  • Case of first impression involving the “intracorporate conspiracy doctrine” and KRS 344.280(2), which creates a case of action for aiding and abetting an unlawful employment practice.

Download (June2016.pdf, PDF, Unknown)

 

SC: June 2016 Oral Arguments before Ky Supreme Court

Dates: June 8, 9 and 10, 2016 in Frankfort

I apologize for missing the first day, but here are the issues for Today (June 10) and tomorrow (June 11).

Please note the oral arguments on the Jefferson County fair jury selection case arising out of Judge Olu Stevens’ court is scheduled for Thursday, June 9, 2016 at 11:oo am.  See links below for catching it live.

  • Wednesday, June 8
    • “Criminal Law. Hate Crimes. In this prosecution for four assaults, issues include the constitutionality and applicability of “hate crime” statute KRS 532.031.”

    • “Wrongful Death. Statute of Limitations. Issues involve whether the statute of limitations”

    • “Insurance. Bad Faith. Damages. Emotional Distress. The primary issue on this review is whether expert testimony is necessary to substantiate damages for emotional distress in a bad faith case.”
  • Thursday, June 9
    • “Administrative Law. Disability Retirement. Issues include the applicability of administrative res judicata in the context of a KRS 61.600(2) disability benefits reapplication.”

    • “Administrative Law. Disability Retirement. Issues include the applicability of administrative res judicata in the context of a KRS 61.600(2) disability benefits reapplication as well as whether alcohol abuse can constitute a KRS 61.600(3)(d) preexisting condition.”

    •  “Certification of the Law. Jury Selection. Fair cross-section requirement.”

      • Jefferson Circuit Court, Judge Olu Alfredo Stevens

        Attorney for Appellant: Dorislee J. Gilbert

        Attorneys for Appellee: Daniel T. Goyette, Cicely Jaracz Lambert and Sean Thomas Pharr

  • Friday, June 10
    • “Statutory interpretation. Class Action Certification. The issue is whether the language of KRS 337.385 prohibits the bringing of claims by employees for wage and hour violations under Kentucky state law as a class action.”

    • “Validity of Louisville Metro Minimum Wage Ordinance. Home Rule Authority. Preemption of State Law over Local Ordinances.”

    • “Juvenile Law. Sex Offender Registration Act. Non-resident adjudication. The issue presented is whether a juvenile adjudicated guilty of a sex offense requiring registration as a sex offender in another state, is required to register after moving to Kentucky.”

Click here for link to table of all monthly oral argument calendars at Kentucky’s Administrative Office of the Courts (AOC) from 2005 to date.

Click here for a link to all of the Kentucky Court Report’s postings on Supreme Court argument calendars.

Click here to catch live web streaming oral arguments on the date and time of the argument.  They are not saved for later viewing.


Download (SCOJUN16.pdf, PDF, Unknown)

COA: June 3, 2016 Court of Appeals Decisions (Minutes)(455-471). 17 decisions; 4 published decisions

PUBLISHED (4): Failed attempt to use Warehouseman Lien to cover security provided to mine owner; Inmate's claims against jailers for failure to train and failure to receive medical care following assault while confined not fly; Post-judgement interest accrual date on Board of Claims award allowed to the tune of $148,787.12. SELECTED NONPUBLISHED CASES: Insurance coverage question on veteranary policy; Criminal records open request to AOC

Second Boyd County Courthouse. Located in Catlettsburg, Kentucky. Construction began in 1910, finished in 1912. Frank Milburn, architect from Columbia, SC, design was influenced by Beaux Art. Milburn designed several other Kentucky Courthouses. Built using Indiana limestone. Distinction of being the First Kentucky courthouse to have air conditioning. Image used courtesy of Keith Vincent, www.CourtHouseHistory.com

Second Boyd County Courthouse. Located in Catlettsburg, Kentucky. Construction began in 1910, finished in 1912. Frank Milburn, architect from Columbia, SC, design was influenced by Beaux Art. Milburn designed several other Kentucky Courthouses. Built using Indiana limestone. Distinction of being the First Kentucky courthouse to have air conditioning. Image used courtesy of Keith Vincent, www.CourtHouseHistory.com

Click here for links to all the archived AOC Court of Appeals minutes at the web site for the Administrative Office of the Courts.

Click here for a listing of the Kentucky Court Report’s posts of the weekly COA minutes (or you can always access these within the KCR web site at the uppermost dropdown menu option for the Court of Appeals).

AOC version of this week’s decisions can be accessed by clicking here.

Published Court of Appeals Decisions
Links are to full text of PDF published cases for this week.

456.  Warehouseman’s Lien.  KRS 355.7-209.
New Tech Mining, Inc. v. The Kentucky Coal Venture I, LLC
Court of Appeals Published Opinion VACATING and REMANDING Pike Circuit Court Order Granting a Warehouseman’s Lien pursuant to KRS 355.7-209.

While there may have been other legal theories under which THC may have sought remuneration for its expenditures related to security at the mine site which it contended were incurred solely for the benefit of Appellants, it did not do so. Instead, THC focused solely on the Warehouseman’s Lien statutory scheme, a strategic decision which ultimately proved unsuccessful. It is not the responsibility of the courts to protect a party from its own misjudgement.

Therefore, for the foregoing reasons, the judgment of the Pike Circuit Court is vacated insofar as it purports to grant a lien in favor of THC for the provision of security services at the Netley Branch Mine site, and this matter is remanded for entry of such orders as are necessary to extinguish the liens previously granted.

458.  Torts. Failure to train.  Failure to provide medical care.
Scott McCallister v. James D. Riley
Court of Appeals Published Opinion AFFIRMING Crittenden Circuit Court summary judgment dismissing plaintiff’s claims seeking damages against three jail officials arising from an altercation with another inmate.  Finding no error COA affirmed.

467.  Board of Claims. Post Judgment Interest.  Accrual.
Virginia Gaither vs. Commonwealth of Kentucky Justice and Public Safety Cabinet
Court of Appeals Published Opinion REVERSING and REMANDING Franklin Circuit Court Order denying Estate’s claim for post-judgment interest on a Board of Claims award.  The dispute concerned the date on which the interest begins to accrue.

The appellees point out that there had been no determination of the amount that was owed to the Estate until the final decision of the Kentucky Supreme Court, and argue that it would be inequitable to require the Commonwealth to pay interest on a judgment that had never been entered. But the judgment of January 5, 2011, met the definition of a judgment under CR 54.01, as it was “a written order of a court adjudicating a claim or claims in an action or proceeding.” Admittedly, it awarded no funds whatsoever to the Gaither Estate. But, under Esenbock, even if the award is nonexistent, as in the case of the estate of the deceased passenger which the trial court held was not entitled to any recovery whatsoever, post-judgment interest will be awarded from the date of the original, erroneous judgment, not the judgment entered upon remand. Under our case law, the Gaither Estate is entitled to post-judgment interest on the amount of $148,787.12, accruing from January 5, 2011.

471.  Workers Compensation.  Average Weely Wage.
Steven Belcher v. Manpower of Indiana
Court of Appeals Published Opinion AFFIRMING Workers Compensation Board decision which had affirmed in part, vacated in part, and remanded with instructions that the ALJ recalculate the average weekly wage in accordance with KRTS 342.140(1)(d).

We agree with the Board, which held as follows: “KRS 342.140(1)(d) is the applicable statute since Belcher earned an hourly wage, and had worked for Manpower for more than thirteen weeks immediately preceding the injury.” We also agree with the Board that the ALJ’s computation was not calculated in accordance with KRS 342.140(1)(d) because he did not base it on thirteen consecutive calendar weeks.


Selected Non-Published Decisions Dealing with tort, insurance and civil procedure:

456.  Insurance Coverage.  Single event.
Kentucky Insurance Guarantee Association v. William A. Rood, D.V.M.
COA Not to Be Published Opinion AFFIRMING in part & REVERSING in part, AND REMANDING Fayette Cir. Ct. Declaratory Judgement Actions

KIGA appeals from two declaratory judgments holding that Dr. William Rood and Dr. William Bernard were each, not collectively, entitled as claimants to the $300,000.00 maximum benefit under KRS1 304.36-080(1)(a). This followed a suit filed against their veterinary hospital. KIGA alleges that the trial court erred when it held that Rood and Bernard were each entitled to reimbursement when neither was a named party in the underlying suit. KIGA also challenges Rood and Bernard’s standing to file a declaratory action and the trial court’s holding that KIGA was not due an offset against its liability.

We conclude that Rood and Bernard could be reimbursed only for the single claim the third-party claimant brought against their veterinary hospital after a single insurable event. However, we agree with the trial court that KIGA was not entitled to reduce its obligation to Rood and Bernard by the amount received by the third-party claimant for his loss.

460. Open Records Act Request Petition Dismissed for criminal records from AOC
Jeffrey Carpenter v. Administrative Office of the Courts
COA Not to Be Published Opinion AFFIRMING dismissal.

OC was not obligated under KORA to provide Carpenter with his centralized criminal history record. The only authority to which Carpenter cites in his argument to the contrary are statutes to which AOC is not bound. AOC has a procedure in place by which inmates and others may obtain their records; and Carpenter can avail himself of this procedure at any time. However, for purposes of his Petition, he is without a legal remedy. Accordingly, the order of the Franklin Circuit Court dismissing Carpenter’s Petition is affirmed.

COA: May 27, 2016 Court of Appeals Decisions (Minutes)(431-454). 24 decisions; 5 published decisions

PUBLISHED (5): Attorney fees for noncompliance of discovery order addressed; Political retaliation alleged by school board employee; statute of limitations in statutory claims sounding in tort; standing by leaseholder to claim damages for blasting; how much land was conveyed by that deed? SELECTED NONPUBLISHED CASES: Some black letter law on new trials, JNOV, Conflicting evidence and jury instructions; reduced contractual limitations in fire insurance policy affirmed, claim filed after one year was too late; procedures for immunity appeal noted in case arising from injuries in schools bleacher seats

Second courthouse in Allen County, Scottsville, Kentucky. Built in 1903. The brick two-story Victorian style had arched windows topped by an enormous cupola in an Italianate style and from the Victorian era. In 1967, it was demolished to speed up traffic flow around the downtown square. The old bell was saved and was placed in the City-County Building. However, there have been two courthouses since then, and I am curious if the old bell has been prominently place in the current structure. If anyone knows, or has a picture of it, then please share. This postcard image is courtesy of CourtHouseHistory.com.

Second courthouse in Allen County, Scottsville, Kentucky. Built in 1903. The brick two-story Victorian style had arched windows topped by an enormous cupola in an Italianate style and from the Victorian era. In 1967, it was demolished to speed up traffic flow around the downtown square. The old bell was saved and was placed in the City-County Building. However, there have been two courthouses since then, and I am curious if the old bell has been prominently place in the current structure. If anyone knows, or has a picture of it, then please share. This postcard image is courtesy of CourtHouseHistory.com.

Help!  Does anyone have a photo of the first Allen County Courthouse they might share for me to post?  It was a unique octagonal shape, and none found on line that can be shared.

And does anyone know where that cupola bell ended up?  Last bit of info I could find was City-County Building when CH #2 was demolished for traffic flow?

And finally and as always, any good legal stories from the past would be appreciated and would be shared.  From Allen County or any other county.  Appropriate credit with a link to your web site would be the payment (and would help your web sites search engine optimization.  😉

Click here for links to all the archived AOC Court of Appeals minutes at the web site for the Administrative Office of the Courts.

Click here for a listing of the Kentucky Court Report’s posts of the weekly COA minutes (or you can always access these within the KCR web site at the uppermost dropdown menu option for the Court of Appeals).

AOC version of this week’s decisions can be accessed by clicking here.

Published Court of Appeals Decisions
Links are to full text of PDF published cases for this week.

431.  Attorneys Fees. Discovery Noncompliance. Divorce.
Susanne Slabaugh Hencye v. Brook White
Court of Appeals Published Opinion AFFIRMING.  Jefferson Cir. Ct.
THOMPSON, JUDGE: Susanne Slabaugh Hencye appeals from an order of the Jefferson Family Court directing her to pay $8,000 of her ex-husband’s attorney fees incurred as a result of alleged discovery violations after she requested appointment of a parenting coordinator. On cross-appeal, Susanne’s ex-husband, Brook White, contends the court abused its discretion by awarding only $8,000 of his requested $24,847.91 in attorney fees.

Our Family Court Rules of Practice and Procedure (FCRPP), including its provision that a party may ask for a parenting coordinator and custody evaluation, were needed and intended to simplify and expedite matters involving children. Unfortunately, in this case, the purpose of the FCRPP and the intent of its drafters have been frustrated by prolonged and costly discovery by Brook. Despite Susanne’s attempt to utilize the resources of the family court to resolve the parties’ domestic issues for the benefit of the children, that has not occurred. By its certification that the order awarding attorney fees is “a final and appealable order with no just cause for delay,” the family court has stated there are no issues pending before it, including any action to determine the children’s best interest. The sole issue then is whether the circumstances warranted the award of attorney fees to Brook. We conclude they do not.

439.  Employment.  Political Retaliation.
Wenda Conley v. Pulaski County Board of Education
Court of Appeals Published Opinion AFFIRMING.  Pulaski Cir Ct.
COA affirmed summary judgment in favor of the Board and its members on the basis that Appellants failed to show that either the Board or its members were involved in the employment- related decisions at issue and affirmed summary judgment to the Superintendant, who was allegedly involved in the employment-related decisions affecting the Appellants, on the basis that Appellants failed to produce any evidence demonstrating that they engaged in any “political affiliation” prior to the adverse employment actions about which they complained.

443.  Statute of Limitations.  KRS 446.070.  Malicious prosecution.
Melissa Goins v. Kristin Lafoe
Court of Appeals Published Opinion AFFIRMING.  Fayette Cir Ct.
COA affirmed summary judgment in favor of LFUCG, LFCUG Detention Center and employees concluding that Goins’s claims sounding in tort were time-barred and that her malicious prosecution claim failed as a matter of law.

448.  Damages. Leasehold. Standing.  Blasting.
PAM I, LLC, Individually and/or DBA Quality Inn Motel v. Elmo Greer & Sons, LLC
Court of Appeals Published Opinion VACATING & REMANDING. Laurel Cir Ct.

Long-standing Kentucky case law recognizes a tenant’s right to sue for damages to its leasehold interest. The issue we resolve in this case is whether the Laurel Circuit Court erred in dismissing PAM I, LLC’s, claim against Elmo Greer & Sons, LLC, for damages allegedly caused by the latter’s blasting on the basis that PAM had no standing to bring the claim. We hold the trial court did err, vacate its summary judgment, and remand to that court for further proceedings.

450.  Real Property. Dispute over amount of land conveyed in deed.
B.G. Dunnington Revocable Trust vs. Jerry Shaw
Court of Appeals Published Opinion AFFIRMING. Wayne Cir Ct.
Note link was defective at time of this publication.  Above link works.

Appellant appeals from a judgment of the Wayne Circuit Court which found in favor of Appellees in a dispute over the amount of land conveyed by a deed. We find no error and affirm.


Selected Non-Published Decisions Dealing with tort, insurance and civil procedure:

432.  Judgment Notwithstanding the Verdict.  New Trial. Conflicting Evidence.  Jury Instructions.
Robert G. Adkins v. David Thacker
COA Not to Be Published Opinion AFFIRMING. Pike Cir Ct.

JONES, JUDGE: Robert Adkins appeals from a jury verdict and resulting order of the Pike Circuit Court, which dismissed his claims against the above-named Appellees. Subsequent to the verdict, Adkins moved for either a new trial or judgment notwithstanding the verdict (JNOV), which the trial court denied. The denial of this motion is the subject of the appeal. After a careful review of the record, we AFFIRM the trial court’s judgment.

A little black letter law:

Under CR 59.01(f), a trial court may grant a new trial when a jury’s verdict is not sustained by sufficient evidence or is contrary to law. As an appellate court, we review the trial court’s denial of the new trial motion for an abuse of discretion and will reverse only if there is clear error. Miller v. Swift, 42 S.W.3d 599, 601 (Ky. 2001); Rippetoe v. Feese, 217 S.W.3d 887, 890 (Ky. App. 2007)(citing Thomas v. Greenview Hosp. Inc., 127 S.W.3d 664 (Ky. App. 2005)).

Given the conflicting evidence, the trial court properly refused a new trial. See Daniel v. H. B. Rice & Co., 275 S.W.2d 924 (Ky. 1955) (holding that while the trial court has broad discretion in granting or refusing a new trial, it may not set aside a verdict of a jury because it does not agree with the verdict if there is sufficient evidence to support it). Accordingly, we must affirm. Bayless v. Boyer, 180 S.W.3d 439, 451 (Ky. 2005)(citations omitted).

The Court in Lieberman v. McLaughlin, 26 S.W.2d 753 (Ky. 1930), explained that the sounding of a horn is not required unless it is found to be necessary under the circumstances. Thus, the sounding of a horn is not a mandate under Kentucky law, but only required if necessary and if the exercise of ordinary care requires such action. Ordinarily, the question of necessity of sound signal is one for the jury. Chappell v. Doepel, 192 S.W.2d 809, 810 (Ky. 1946).

Lastly, Adkins argues that jury instructions were improper. Alleged errors regarding jury instructions are considered questions of law that we examine under a de novo standard of review. Reece v. Dixie Warehouse and Cartage Co., 188 S.W.3d 440, 449 (Ky. App. 2006). “Instructions must be based upon the evidence and they must properly and intelligibly state the law.” Howard v. Commonwealth, 618 S.W.2d 177, 178 (Ky. 1981).

437.  Fire Loss.  Contractual limitations in insurance policy and shortening of statute of limitations affirmed.
Leonard Gibbons v. Kentucky Farm Bureau Mutual Ins. Co.
COA Not to Be Published Opinion AFFIRMING.  Jefferson Cir Ct.

Gibbons filed a complaint in Jefferson Circuit Court against Farm Bureau. Farm Bureau subsequently filed a motion to dismiss Gibbons’s complaint as being untimely filed. Kentucky Rules of Civil Procedure (CR) 12.02(f). Farm Bureau maintained that the policy of insurance issued to Gibbons provided a one-year limitation period to initiate litigation on the claim which was triggered upon the date of the loss. The policy specifically provided that “[n]o action can be brought unless the policy provisions have been complied with and the action is started within one year after the date of loss.” Homeowner Policy at 12. Farm Bureau emphasized that the loss of Gibbons’s home occurred on October 14, 2012, and Gibbons did not file the complaint until November 13, 2013, some thirteen months after the loss. Farm Bureau argued that the complaint was filed after the one-year contractual limitation period expired and was time-barred.  COA affirmed trial order upholding one year contractual limitation period in insurance policy.

447.  Immunity Claim.  Bleacher seats. Appeal procedures.
Betty Bullock v. Larry Warren et. al.
COA Not to Be Published Opinion AFFIRMING. Knox Cir Ct.
Public school officials are generally entitled to qualified official immunity for their discretionary decisions but not for ministerial actions negligently made for which liability may attach. In this case, Betty Bullock was injured when she fell on the bleachers of the Barbourville Elementary School. The decision we must make in this case is whether the Knox Circuit Court erred in granting summary judgment in favor of Larry Warren, Superintendent of the Barbourville Independent Schools (“School District”), Vencil “Dinky” Phipps, Athletic Director of the School District, and Paul Middleton, Principal of the School.  We hold that the circuit court did not err, and therefore affirm its judgment.

Download (MNT05272016.pdf, PDF, Unknown)

COA: May 20, 2016 Court of Appeals Decisions (Minutes)(418-430). 13 decisions; 3 published decisions

PUBLISHED: Damage in lease termination affirmed; Equal protection of the law violated when arson investigator was hired for vacant position at higher pay than two others; failure to name necessary party on appeal involving easement appurtenant; family court judge erred in contempt imprisonment for failure to pay child support (failure to set attainable purge amount); wrongful death claim dealing with sale of car to unlicensed and uinsured driver plus a little negligent entrustment thrown in the mix - dismissed. OTHER CASES: dismissal for lack of prosecution affirmed even tho without prejudice and refiling would be barred by statute of limitations.

Third Ballard County Courthouse. Located in Wickliffe, Kentucky. Construction started in 1900, completed in 1905 at a cost of $25,000. Design was similar to several courthouses built in Missouri by St. Louis architect Jerome Bibb Legg. Two story brick, Breaux-Arts styles of the period. Listed in National Register of Historic Places in 1980. Beaux-Arts architecture depended on sculptural decoration along conservative modern lines, employing French and Italian Baroque and Rococo formulas combined with an impressionistic finish and realism. Characteristics of this style included flat roof, risticated and raised first story, heirarch of raised spaces, arched windows, arched doors, symetry, staturary, to name a few. For more info on this style, then see https://en.wikipedia.org/wiki/Beaux-Arts_architecture.

Third Ballard County Courthouse. Located in Wickliffe, Kentucky. Construction started in 1900, completed in 1905 at a cost of $25,000. Design was similar to several courthouses built in Missouri by St. Louis architect Jerome Bibb Legg. Two story brick, Breaux-Arts styles of the period. Listed in National Register of Historic Places in 1980.

Beaux-Arts architecture depended on sculptural decoration along conservative modern lines, employing French and Italian Baroque and Rococo formulas combined with an impressionistic finish and realism. Characteristics of this style included flat roof, risticated and raised first story, heirarch of raised spaces, arched windows, arched doors, symetry, staturary, to name a few. For more info on this style, then see https://en.wikipedia.org/wiki/Beaux-Arts_architecture.

Click here for links to all the archived AOC Court of Appeals minutes at the web site for the Administrative Office of the Courts.

Click here for a listing of the Kentucky Court Report’s posts of the weekly COA minutes (or you can always access these within the KCR web site at the uppermost dropdown menu option for the Court of Appeals).

AOC version of this week’s decisions can be accessed by clicking here.

Published Court of Appeals Decisions
Links are to full text of PDF published cases for this week.

418.  Premises Liability.  School parking lot. Snow. Defense of Qualified Official Immunity Applied regarding clearing accumlated snow.
Kim Rasche v.  Dr. Sheldon H. Berman
Court of Appeals Published Opinion AFFIRMING.  Jefferson.
J. LAMBERT, JUDGE: Kimberly Rasche appeals from the Jefferson Circuit Court’s entry of summary judgment in favor of the Appellees. The Appellees are various employees of the Jefferson County Board of Education and district employees who were sued in their individual capacities. The trial court held that the Appellees were entitled to qualified immunity and entered summary judgment in their favor. Upon initial review, this Court affirmed the summary judgment entered by the trial court. Rasche sought discretionary review from the Supreme Court of Kentucky, which granted discretionary review, vacated this Court’s decision, and remanded for further consideration in light of Marson v. Thomason, 438 S.W.3d 292 (Ky. 2014). Upon consideration of Marson and supplemental briefing by the parties, we again affirm the summary judgment entered in favor of the various school employee defendants below.

423.  Workers Compensation.
Austin Powder Co. v. Billy Stacy
Court of Appeals Published Opinion AFFIRMING IN PART, REVERSING IN PART, AND REMANDING.  Workers Comp.J. LAMBERT, JUDGE: Billy Stacy and Austin Powder Company have both petitioned this Court for review of the decision of the Workers’ Compensation Board (the Board). The Board affirmed in part, vacated in part, and remanded the decision of the Administrative Law Judge (the ALJ) awarding Stacy permanent total disability benefits and medical benefits for cumulative trauma injuries to his wrists and lumbar spine as well as medical benefits for his work-related hearing loss. In his petition, Stacy contends that the Board erred in sua sponte reversing the ALJ’s decision for findings related to the date of manifestation of his cumulative trauma claims and for a determination of the percentage of his cumulative trauma that is related to his work for Austin Powder. In its petition, Austin Powder disputes the Board’s determinations that Dr. Hughes’s testimony was based upon substantial evidence of record; that the impairment rating assigned by Dr. Hughes was within the parameters of the AMA Guides, Fifth Edition; and that Stacy’s hearing loss claim entitled him to medical benefits. Having carefully reviewed the record, the parties’ respective arguments, and the applicable law, we affirm in part, reverse in part, and remand.


Selected Non-Published Decisions Dealing with tort, insurance and civil procedure:

409.  Dismissal for lack of prosecution affirmed.
Estate of Elizabeth Cooper v. Daniel Towner
COA Not to Be Published Opinion AFFIRMING.  Bullitt.
An agreed order to dismiss a party does not constitute pretrial activity or step such as discovery to avoid dismissal for lack of prosecution.   Potential barring of action following dismissal without prejudice has no bearing.

Download (MNT05132016.pdf, PDF, Unknown)

COA: May 13, 2016 Court of Appeals Decisions (Minutes)(400-417). 18 decisions; 6 published decisions

PUBLISHED: Damage in lease termination affirmed; Equal protection of the law violated when arson investigator was hired for vacant position at higher pay than two others; failure to name necessary party on appeal involving easement appurtenant; family court judge erred in contempt imprisonment for failure to pay child support (failure to set attainable purge amount); wrongful death claim dealing with sale of car to unlicensed and uinsured driver plus a little negligent entrustment thrown in the mix - dismissed. OTHER CASES: dismissal for lack of prosecution affirmed even tho without prejudice and refiling would be barred by statute of limitations.

Second Butler County Courthouse. Built in 1873 under the administration of Judge Thomas C. Carson. Two story Italianate design with a hexagonal cupola. Replaced in 1975 by the current colonial style courthouse.

Second Butler County Courthouse. Built in 1873 under the administration of Judge Thomas C. Carson. Two story Italianate design with a hexagonal cupola. Replaced in 1975 by the current colonial style courthouse. “[Italianate design] is distinctive by its pronounced exaggeration of many Italian Renaissance characteristics: emphatic eaves supported by corbels, low-pitched roofs barely discernible from the ground, or even flat roofs with a wide projection. A tower is often incorporated hinting at the Italian belvedere or even campanile tower.” Wikipedia.

Click here for links to all the archived AOC Court of Appeals minutes at the web site for the Administrative Office of the Courts.

Click here for a listing of the Kentucky Court Report’s posts of the weekly COA minutes (or you can always access these within the KCR web site at the uppermost dropdown menu option for the Court of Appeals).

AOC version of this week’s decisions can be accessed by clicking here.

Published Court of Appeals Decisions
Links are to full text of PDF published cases for this week.

400.  Damages. Termination of Sublease.
DKM Coal Corporation, Inc. v. Roy Crawford, III
Court of Appeals Published Opinion Affirming. Letcher.
COA affirmed partial summary judgment awarding Crawford and Odessa damages, including attorney’s fees and prejudgment interest, in the amount of $134,084.21.

404.  Employment.
Kentucky State Police v. Terry Scott
Court of Appeals Published Opinion Affirming.  Franklin.
COA affirmed judgement in favor or two KSP arson investigators who sued KSP for alleged violations of their right to equal protection of the law after discovering that another individual had been hired to fill a vacant position for arson investigator position at a higher rate of pay.

406.  Appeals.  Necessary Party.  Easements.
ICON-LEX Development, LLC v. REI Real Estate Services, LLC
Court of Appeals Published Opinion Dismissing.  Jefferson.
In case involving easements in gross and easements appurtenant differentiating upon whether the easement benefits a particular grantee or a particular piece of land in which the trial court found in favor of the appellees that the easement in question was an easement appurtenant, the COA dismissed the appeal for lack of jurisdiction for failure to name a necessary party on the appeal.

407.  Criminal Law.  Search and Seizure.
Ian J. Lydon v. Commonwealth of Kentucky 
Court of Appeals Published Opinion REVERSING AND REMANDING. Christian.
COA reversed search and seizuire of evidence observed and photographed  without a warrant, concluding that officers lacked any recognized exigent circumstance justifying their warrantless entry into Lydon’s home.

411. Failure to pay child support.
Henry Spencer v. Commonwealth of Kentucky 
Court of Appeals Published Opinion REVERSING and REMANDING.  Barren.
Reversed family court’s contempt finding that Spencer failed to pay child support when COA concluded the family court erred when it ordered a term of imprisonment but failed to set an attainable purge amount. Remanded for additional proceedings congruent with this Opinion.

413.  Torts. Wrongful Death.  Unlicensed driver.  Proof of insurance. Negligent Entrustment.
Sandra Burchett v.  Amanda Burchett
Court of Appeals Published Opinion Affirming.  Lawrence.
COA affirmed dismissal of wrongful death suit against an automotive dealer and his insurer.

Case involved a sale of an automobile to an unlicensed purchaser who did not have insurance when the collision occurred killed the decedent.

After considering and weighing the evidence, the jury determined that Perry delivered the automobile’s original title and an Application for a Kentucky Certificate of Title to Blair and Amanda on May 14, 2012. The jury also determined that Amanda did not have a drivers’ license. Based on the jury’s determination, the trial court ruled that title to the automobile transferred on the day of the sale and eliminated any issues relating to Perry’s alleged liability. The trial court dismissed Perry from the action on September 10, 2014, but held the action open until Blair’s liability was decided. Upon a joint motion of the parties to do so, the trial court entered a final order dismissing Perry from the action on January 6, 2015. This appeal followed.

Because the jury determined that Perry delivered the necessary title documents to Blair and Amanda on May 14, 2012, Blair and Amanda became the owners of the automobile on that day. Moreover, since Perry was no longer the owner, he was under no duty to prevent either Blair or Amanda from driving the automobile on the day of the accident. Finally, because Perry transferred the title documents to Blair and Amanda directly, and did not retain the certificate of title with the consent of the new owners to file it with the county clerk, he did not have to verify whether Blair or Amanda were insured.

“The common law theory of negligent entrustment is that one who entrusts his vehicle to another whom he knows to be inexperienced, careless, or reckless, or given to excessive use of intoxicating liquor while driving, is liable for the natural and probable consequences of the entrustment.” McGrew v. Stone, 998 S.W.2d 5, 9 (Ky. 1999) (emphasis added). Logically, one cannot maintain a negligent entrustment suit against the former owner of a vehicle who properly transferred ownership of the subject vehicle. See Graham v. Rogers, 277 S.W.3d 251 (Ky. App. 2008).


Selected Non-Published Decisions Dealing with tort, insurance and civil procedure:

409.  Dismissal for lack of prosecution affirmed.
Estate of Elizabeth Cooper v. Daniel Towner
COA Not to Be Published Opinion AFFIRMING.  Bullitt.
An agreed order to dismiss a party does not constitute pretrial activity or step such as discovery to avoid dismissal for lack of prosecution.   Potential barring of action following dismissal without prejudice has no bearing.

Download (MNT05132016.pdf, PDF, Unknown)

SC: 2016 Supreme Court Orders 1 through 3

No. 1 - SCR 5.030(d) Powers; No. 2 - Amendments to the Rules of Administrative Procedure AP Part XIII Procedures for Drug Court; No. 3 - Amendment to Administrative Procedures of the Court of Justice, Part XV, Domestic Violence

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2016 2016-03 Order Amending Amendment to Administrative Procedures of the Court of Justice, Part XV, Domestic Violence
2016 2016-02 Order Amending Amendments to the Rules of Administrative Procedure AP Part XIII Procedures for Drug Court
2016 2016-01 Order Amending SCR 5.030(d) Powers

SC: 2015 Supreme Court Orders 8 through 24

2015 2015-25 Order Amending Amendments to the Rules of Administrative Procedures AP Part IV. Master Commissioners of the Circuit Court
2015 2015-24 Order Amending Authorization for the Non-Financial Uniform Schedule of Bail Administrative Release Program
2015 2015-23 Order Amending Order Amending Rules of the Supreme Court
2015 2015-22 Order Amending Authorization for the Non-Financial Uniform Schedule of Bail Administrative Release Program
2015 2015-21 Order Amending Guidelines for the Temporary Assignment of Retired Judges Program
2015 2015-20 Order Amending Order Amending Rules of the Supreme Court
2015 2015-19 Order Amending Amendments to the Rules of Administrative Procedures of the Kentucky Court of Justice, AP Part III, Personnel Policies
2015 2015-18 Order Amending Amendment to Administrative Procedures of the Court of Justice, Part XVI, Circuit Court Clerks Conduct Commission
2015 2015-17 Order Amending Guidelines for the Temporary Assignment of Retired Judges Program
2015 2015-16 Order Amending Amendment to Administrative Procedures of the Court of Justice, Part XVII, Ignition Interlock
2015 2015-15 Order Amending Provisional Juvenile Court Rules of Procedures and Practice (JCRPP) and Amendments to Family Court Rules of Procedures and Practice, Part VIII, Status Offenders
2015 2015-14 Order Amending Guidelines for the Temporary Assignment of Retired Judges Program
2015 2015-13 Order Amending Amendment to Administrative Procedures of the Court of Justice, Part XVI, Ignition Interlock
2015 2015-12 Order Amending Amendment to Administrative Procedures of the Court of Justice, Part XVI, Ignition Interlock
2015 2015-11 Order Amending Kentucky Circuit Court Clerks’ Manual
2015 2015-10 Order Amending Amendment to Administrative Procedures of the Court of Justice, Part XV, Domestic Violence
2015 2015-09 Order Amending Emergency Order Amending Rules of the Supreme Court

COA: May 6, 2016 Court of Appeals Decisions (Minutes)(379-399). 21 decisions; 4 published decisions

PUBLISHED: Qualified official immunity applied in school supervision; Felony exclusion in auto policy and Alford plea; tortious interference with law business; Juvenile transfer to circuit court. OTHER CASES: Contractual limitation of action in UIM and Third party auto policy

LawrenceCH.Louisa

Second courthouse for Lawrence County. Located in Louisa. Built sometime in the 1870’s through the efforts of Judge J.J. Jordan to replace the old wooden structure built in 1823. Two-story Italianate style with an addition built later in 1922. Thanks to Courthousehistory.com for the use of this image.

Click here for links to all the archived AOC Court of Appeals minutes at the web site for the Administrative Office of the Courts.

Click here for a listing of the Kentucky Court Report’s posts of the weekly COA minutes (or you can always access these within the KCR web site at the uppermost dropdown menu option for the Court of Appeals).

AOC version of this week’s decisions can be accessed by clicking here.

May 6, 2016 Published Court of Appeals Decisions  
Links are to full text of PDF published cases for this week.

380.  Torts. Defenses. Qualified Official Immunity for principals on claim of unsupervised hallway at school
James Beward vs. Cody Whitaker
Court of Appeals Published Opinion REVERSING AND REMANDING – Bullitt
COA reversed and remanded circuit court’s interlocutory order and granting qualified official immunity to two former high school principals in claims student was injured in unsupervised hallway prior to to start of school day.

381.  Insurance. Automobile. Exclusion for felony. Alford Plea.
Jacob Eberle, Minor vs. Nationwide Mutual Insurance Company
Court of Appeals Published Opinion AFFIRMING – Jefferson
COA affirmed trial court order which determined Nationwide was not obligated to provide coverage  for injuries that minor sustained when policyholder shot him because the injuries were expressly excluded felony and Alford plea qualified.

384.  Criminal Law.  Juvenile transfer to circuit court.
Marico Perkins vs. Commonwealth of Kentucky 
Court of Appeals Published Opinion  AFFIRMING – Fayette
COA affirmed transfer of juvenile case to circuit court for prosecution.

393.  Torts.  Tortious interference with business. Abuse of process.
J. Fox Demoisey vs. Peter Ostermiller
Court of Appeals Published Opinion AFFIRMING IN PART, REVERSING IN PART, AND REMANDING – Jefferson

DeMoisey has appealed asserting that the circuit court erred in entering summary judgment on the tortious interference claims. Ostermiller filed a cross-appeal asserting that the circuit court should have dismissed the abuse of process claim with prejudice because it is time-barred. Upon careful review of the record and applicable legal authority, we AFFIRM in part as related to the tortious interference claims, REVERSE in part as related to the abuse of process claim, and REMAND to the circuit court with instructions to dismiss the abuse of process claim with prejudice.


Selected Non-Published Decisions Dealing with tort, insurance and civil procedure:

382.  Insurance.  UIM (contractual SOL applied to third party under policy).  
John L. Brown vs. Mitsui Sumitomo Ins. Co.
COA Not to Be Published Opinion AFFIRMING – Jefferson affirming partial summary judgement and judgment on pleadings and finality language used

394.  Torts.  Bankruptcy.  Judicial estoppel.  Untimely notice of appeal.
Wanda Wright-Starnes vs. Continental Realty Advisors, LTD
COA Not to Be Published Opinion  AFFIRMING – Jefferson

Download (MNT05062016.pdf, PDF, Unknown)

COA: MARCH 2016 Summaries of Published Decisions for Court of Appeals

Click here for the AOC’s archived summaries of monthly published decisions for the Court of Appeals.

Click here for the monthly summaries of published decisions tagged in the Kentucky Court Report’s posts.

This month’s summary of published decisions:

Download (March2016.pdf, PDF, Unknown)