COA: Jan. 27, 2017 Court of Appeals Decisions (Minutes) (103 through 119 with 4 decisions designated to be published)

Published - DNA Testing; Search Warrant; City police liability and SOP compliance; waste dumping. Not Published - Premises liability; zero pain and suffering verdict, new trial granted, and intro of UIM contract all wrapped up in one case!; duty to remove snow not the same as snow & ice for scope of employment and immunity; another nursing home arbitration case with bad POA

The Court of Appeals posted  17 decisions on Jan. 27, 2017, numbered 103-119 with 4 decisions designated for publication.

Published Decisions (with topic and county indicated) for Jan. 27, 2017

104.  Criminal Law.  Post-conviction DNA Testing.
Owens v. Commonwealth of Kentucky
Affirming – Simpson County

107.  Criminal Procedure.  Valid search warrant.
Lundy v. Commonwealth of Kentucky
Affirming – Nelson County

109.  Claim against city
Louisville Jefferson County Metro Gov’t v. Braden
Vacating and remanding, dismissing appeal –  Jefferson County

We hold that the trial court’s exclusive reliance upon Lewis’s compliance with Louisville Metro Police Department (LMPD) Standard Operating Procedures (SOPs) was misplaced. We further hold that, at the time of the accident, Lewis was not operating within the scope of his employment for purposes of triggering Louisville Metro’s statutory obligation to defend and indemnify him under CALGA. Therefore, we vacate the trial court’s order granting summary judgment in favor of the Estate; and we remand to the trial court for entry of an order granting summary judgment in favor of Louisville Metro.

112.  Regulatory Law. Waste dumping.  Easement.
South Central Kentucky Properties v. Commonwealth of Kentucky, Dept of Transportation
Affimring – Franklin County

Selected not to be published decisions – torts, insurance and civil:

105.  Premises liability.  Landlord tenant.
Carney v. Galt
Affirming in part, Reversing in part, remanding – Jefferson County

111.  Miller v. Swift, New Trial and Zero Pain and Suffering.  Introduction of UIM contract to jury not error.
Shelter Mutual Ins. Co. v. Sheffield
Affirming – Franklin County

Interesting case.  Judge granted new trial following zero pain and suffering verdict.  New trial awarded pain and suffering damages.  Insurance company appealed grant of new trial and COA affirmed as not clearly erroneous by trial judge.

We are not persuaded by Shelter’s argument that since interpretation of a UIM contract is strictly a matter of law for the court to decide, the introduction of the contract creates a risk of confusing the jury. First, the jury was aware that it was a contract case. Furthermore, it was not required to interpret the contract but rather to ascertain Loren’s damages. Finally, the trial court appropriately instructed the jury on its duties in the jury instructions.

We believe that the introduction of the contract permitted the jury to understand the reason for the case and their purpose in hearing the matter. Shelter’s claim of prejudice is unfounded. Consequently, the trial court did not abuse its discretion in admitting the contract into evidence. The document was relevant to the proceedings since a UIM claim is a contract claim.

115.  Immunity.  Distinction made in official duties on removal of snow vs. snow and ice.
Fields v. Baker
Reversing and Remanding – Laurel

In slip and fall case were two grounds crew members entitled to immunity in their individual capacities in removal of snow and ice?

The uncontested facts in this case are that: Fields and Rains plowed the snow off of the parking lot; it was not within the scope of their ministerial duties to remove ice from the student parking lots unless expressly directed to by the superintendent or assistant superintendent; and Baker slipped and fell on ice in the student parking lot.

As Baker’s injuries are alleged to have occurred by Fields and Rains failing to remove ice from the student parking lot, and it was not within the scope of their job duties to remove ice from the student parking lot, summary judgment is appropriate. Accordingly, we reverse and remand for proceedings consistent with this Opinion and Order.

Winter precipitation comes in many forms. As Yukon Cornelius so aptly perceived, “Terrible weather we’ve been havin’ . . . snow, and ice!” Rudolph, the Red-Nosed Reindeer (NBC, 1964). How you treat that snow and ice in parking lots can mean the difference between a treacherous path and a safe one.

118.  Nursing home.  POA not specifically address alternative dispute resolution.
LP Beattyville LLC v.  Estate of Dale Roger Brown
Affirming – Lee County

All decisions regardless of publication are posted and can be read, but those decisions designated not for publication cannot be cited as legal authority.  See, KRCP 76.28(4)(c)(“Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.”)

You will find the complete list of this week’s decisions below with number, names of parties, case number, lower court (eg., county), etc. with a hot link to the full text of the decision.  Please note that you will have to check Case Information for each decision for finality, amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.

For links to all our posts on the minutes of the Court of Appeals, then click here.

For the index to archived minutes at the official AOC page, then click here.

MNT01272017

SC: March 2016 Grants of Discretionary Review by the Supreme Court of Kentucky (MDRs)

If you want more detailed information on those cases granted discretionary review, here are links to the case information pages at the Supreme Court and at the Court of Appeals.  You will need to do a search by name, case number, etc.

  • For Supreme Court case information, click here.
  • For Court of Appeals case info, click here.  Note, a link to the COA decision can be found under the case information.

COURT ORDERS GRANTING MOTION FOR DISCRETIONARY REVIEW
MARCH 15, 2016

MICHAEL SCALISE, ET AL. V. SUZETTE SEWELL-SCHEUERMANN
2016-SC-000246-DG JEFFERSON

NORFOLK SOUTHERN RAILWAY COMPANY V. SHARON JOHNSON
2016-SC-000248-DG BOYLE

COMMONWEALTH OF KENTUCKY V. DAVID J. MOORE
2016-SC-000275-DG CARROLL

WILLIAM DAVID ELLINGTON, ET AL. V. HARLAN RANDALL BECRAFT, ET AL.
2016-SC-000513-DG BATH

WILLIAM J. YUNG, ET AL. V. GRANT THORNTON, LLP
2016-SC-000571-DG KENTON

LATASHA MAUPIN V. ROLAND TANKERSLEY
2016-SC-000572-DG JACKSON

HARRY L. SEEGER V. SHARON LANHAM
2016-SC-000677-DG NELSON

PBI BANK, INC. V. SIGNATURE POINT CONDOMINIUMS LLC
2017-SC-000007-DG JEFFERSON

SC: March 2017 Decisions of the Supreme Court of Kentucky (Minutes)

Complete minutes with links to full text of all decisions posted by the Supreme Court this month.

Here are some of Mar. 2017 published cases:

  • Workers’ Compensation. Weekly permanent-partial disability benefits and lump-sum attorney’s fee payment. Application of a multiplier reflecting the future periodic payment of the attorney’s fee commuted to a present value.

  • Family Law. Maintenance. Unemployed Spouse. Reasonable Expenses. Whether the family court correctly included expenses that are fully or partially attributable to the parties’ children in the unemployed spouse’s reasonable expenses when calculating maintenance.

  • Premises Liability. Application of McIntosh and Shelton cases to a case involving a fall in a depressed area of the pavement in a parking lot. Is the condition “unreasonably dangerous” or “open and obvious?” Whether the business manager had sufficient control of the premises to be held jointly and severally liable.

Here is a link to the indexed minutes for the Supreme Court of Kentucky at their official web site.

Here is link to the Kentucky Court Report’s archived minutes for the Supreme Court.

This month’s minutes of the published and not to be published decisions, disciplinary matters, discretionary reviews granted and denied, petitions for hearing requested and denied, and more are as follows.  Use the scroll arrows at the bottom left of the PDF document to scroll through the pages.

MNT032017

COA: Jan. 20, 2017 Court of Appeals Decisions (Minutes) (70 through 102 with 6 decisions designated to be published)

Published (Dismissing EmploymentyDiscrimination Claim.; Legal Complaint against Criminal Defense Attorney; DUI and motion to suppress; Venue for child's schooling; Retirement disability benefits from state) Not to be published (limiting plaintiff's expert testimony in med-mal case; attorney misconduct at trial by references; qualified immunity in child's death at phy ed class at school; legal services contracty examned)

The Court of Appeals posted  33 decisions on Jan. 20, 2017, numbered  70-102 with 6 decisions designated for publication.

Published Decisions (with topic and county indicated) for Jan. 20, 2017

86.  Pro se Appeal.  Summary Judgment Dismissing EmploymentyDiscrimination Claim.
Tucker v. Bluegrass Regional Mental Health Mental Health Retardation Board
Affirming Fayette Cir. Ct.

87.  Domestic Relations.  Custody and Child Support of Biological Child with regard to non-parent.
Jones v. Jones
Reversing and Remanding (Rowan)

93.  Legal Complaint against Criminal Defense Attorney with DPA and issues of immunity
Jacobi v. Holbert
Affirming (Hardin)

94.  DUI Conviction.  Motion to Suppress.
O’Daniel v. Commonwealth of Kentucky 
Affirming (Lyon)

95.  State Government Retirement Disability Benefits.
Bartrum v. Kentucky Retirement Systems
Affirming (Franklin)

97.   Divorce.  Appropriate Venue for Child’s Schooling.
Keaton v. Keith
Vacating and Remanding (Meade)

Selected not to be published decisions – torts, insurance and civil:

70.  Medical negligence.  Abuse of discretion by judge in limiting expert testimony for plaintiff.
Ries v. Dr. Richard C. Oliphant
COA Not to Be Published Opinion Reversing and remanding (Jefferson)

82.  Trial.  Claims of attorney misconduct in referencing to admissible evidence etc.
Hughes v. Martin and GEICO Ins. Co.
COA Not to Be Published Opinion Affirming (Kenton)

90.  Qualified official immunity on claim for child’s death during physical fitness class at school
Richardson v. Queen
COA Not to Be Published Opinion  Affirming (Jessamine)

91.  Legal services contract.
Wobbles v. Preferred Automotive Sales, Inc.
COA Not to Be Published Opinion Affirming in part, vacating in part and remanding (Fayette)


All decisions regardless of publication are posted and can be read, but those decisions designated not for publication cannot be cited as legal authority.  See, KRCP 76.28(4)(c)(“Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.”)

You will find the complete list of this week’s decisions below with number, names of parties, case number, lower court (eg., county), etc. with a hot link to the full text of the decision.  Please note that you will have to check Case Information for each decision for finality, amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.

For links to all our posts on the minutes of the Court of Appeals, then click here.

For the index to archived minutes at the official AOC page, then click here.

COA: Jan.13, 2017 Court of Appeals Decisions (Minutes) (24 through 69 with 7 decisions designated to be published)

Published: Accrual date for SOL; judicial discretion on post-judgment interest; Medical products liability and federal preemption; Open Records.  Must produce suitably redacted copies of final tax rulings; Pre-Injury release.  Signed before church trip; Retirement  Benefits Calculation when incentive pay involved.; Revoking Shock Probation; Not to be published (POA & arbitration; enforcing settlement from agreed judgment; calculating SOL accrual date; qualified official immunity and childcare; med negligence and jury instrucitons; foreign judgment)

The Court of Appeals posted  47 decisions on Jan. 13, 2017, numbered  1 through 23 with 6 decisions designated for publication.

Published Decisions (with topic and county indicated)

30.  Statute of Limitations.  Calculating the date for accrual “the date when the cause of action was, or reasonably should have been, discovered”
Victory Community Bank v. Lionel Socol
Court of Appeals Published Opinion AFFIRMING (Kenton County)

32.  Post-Judgment Interest. Judicial discretion.
Hazel Enterprises, LLC  v. Scott Alan Ray
Court of Appeals Published Opinion AFFIRMING (Warren)

38.  Medical products liability and federal preemption.
Cales v. Baptist Healthcare System, Inc.
Court of Appeals Published Opinion AFFIRMING (Christian)

39.  Open Records.  Must produce suitably redacted copies of final tax rulings
Finance & Administration Cabinet v. Sommer
Court of Appeals Published Opinion AFFIRMING in part and REVERSING and REMANDING  (Fayette)

40.  Pre-Injury release.  Signed before church trip.
Grego v. Jenkins
Court of Appeals Published Opinion REVERSING & REMANDING (Jefferson)

Because the law disfavors such contractual provisions, “[t]he wording of the release must be ‘so clear and understandable that an ordinarily prudent and knowledgeable party to it will know what he or she is contracting away; it must be unmistakable.’”

Specifically,  a preinjury release will be upheld only if:

(1) it explicitly expresses an intention to exonerate by using the word ‘negligence;’ or
(2) it clearly and specifically indicates an intent to release a party from liability for a personal injury caused by that party’s own conduct; or
(3) protection against negligence is the only reasonable construction of the contract language; or
(4) the hazard experienced was clearly within the contemplation of the provision.

No special treatment for churches/charities, and just need to have clear exculpatory language in release.

43.  Retirement  Benefits Calculation when incentive pay involved.
Smith v. Teachers Retirement System
Court of Appeals Published Opinion AFFIRMING (Franklin)

54.  Criminal Law.  Revoking Shock Probation.
Flaugher v. Commonwealth of Kentucky
Court of Appeals Published Opinion VACATING (Mason)

Selected not to be published decisions:

24.  Power of attorney and arbitration clause at nursing home.  Not specifically granted in POA.
Kindred Nursing Centers Limited Partnership v. Powell, Est. of Virginia Wells
COA Not to Be Published Opinion AFFIRMING (Marshall)

25.  Agreed judgment, settlement agreement, and compliance.
McCarthy v.  Kimberly Maius-Streutker, Adm’x Est. of Nora L. Minning
COA Not to Be Published Opinion AFFIRMING (Grant)

26.  POA did not confer authority to agree to mandatory arbitration
Kindred Nursing Centers v. Withers
COA Not to Be Published Opinion AFFIRMING (Hardin)

28.  SOL.  Calculating date knew or should have known.
Russell v. Gundelly, Dr.
COA Not to Be Published Opinion AFFIRMING (Fayette)

36.  Torts.  Federal claims for deprivation of constitutional rights under the color of state law pursuant to 42 U.S.C.2 §1983.  Proof of legal duty.
Hurst v. Caldwell
COA Not to Be Published Opinion AFFIRMING Summary Judgment (Mercer)

41.  Statute of Limitations.  Time barred fraud claim.
Dattil0 v. Collins (link to decision ‘fixed’)
COA Not to Be Published Opinion AFFIRMING (Christian)

47.  Qualified official immunity.  Childcare providers.
Nelson County Board of Education v. Newton
COA Not to Be Published Opinion AFFIRMING, in part, VACATING in part, and REMANDING (Nelson)

53.  Workers Comp, Past-due benefits, and attorney fees.
Memorial Hospital v. Morgan
COA Not to Be Published Opinion (Clay)

62. Medical Negligence.  Jury instructions.
Fonts v. Dr. Bux 
COA Not to Be Published Opinion AFFIRMING (Boyle)

64.  Foreign judgment.  Jurisdiction.  In personam.
Mitchell v. Leed HR, LLC
COA Not to Be Published Opinion VACATING and REMANDING (Jefferson)


All decisions regardless of publication are posted and can be read, but those decisions designated not for publication cannot be cited as legal authority.  See, KRCP 76.28(4)(c)(“Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.”)

You will find the complete list of this week’s decisions below with number, names of parties, case number, lower court (eg., county), etc. with a hot link to the full text of the decision.  Please note that you will have to check Case Information for each decision for finality, amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.

For links to all our posts on the minutes of the Court of Appeals, then click here.

For the index to archived minutes at the official AOC page, then click here.

MNT01132017

 

COA: Jan. 6, 2017 Court of Appeals Decisions (Minutes) (1 through 23 with 6 decisions designated to be published)

Qualified Official Immunity; Premises Liability, Business Parking Lot; Nursing Home Arbitration in Wrongful Death Claim; Wrongful Death, 911 Call; Medical Negligence; Peremptory Challenges

The Court of Appeals posted  23 decisions this week, numbered  1 through 23 with 6 decisions designated for publication.

Published Decisions:

Selected Not to Be Published Decisions (Torts, Insurance, Civil)

2.  Peremptory Challenges
Cayce v. Sumner
Court of Appeals Published Opinion AFFIRMING (Christian)

20.  Medical Negligence.
Hall v. Harreld
COA Not to Be Published Opinion AFFIRMING (Jefferson)


All decisions regardless of publication are posted and can be read, but those decisions designated not for publication cannot be cited as legal authority.  See, KRCP 76.28(4)(c)(“Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.”)

You will find the complete list of this week’s decisions below with number, names of parties, case number, lower court (eg., county), etc. with a hot link to the full text of the decision.  Please note that you will have to check Case Information for each decision for finality, amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.

For links to all our posts on the minutes of the Court of Appeals, then click here.

For the index to archived minutes at the official AOC page, then click here.

MNT01062017

 

 

SC: December 2016 Grants of Discretionary Review by the Supreme Court of Kentucky (MDRs)

COURT ORDERS GRANTING MOTION FOR DISCRETIONARY REVIEW – DECEMBER 8, 2016

  • For Supreme Court case information, click here.
  • For Court of Appeals case info, click here.  Note, a link to the COA decision can be found under the case information.

    AUSLANDER PROPERTIES, LLC V.JOSEPH HERMAN NALLEY, ET AL.  2016-SC-000099-DG NELSONANGELA FORD, ET AL. V. FAISAL SHAH, ET AL.
    2016-SC-000136-DG FAYETTE

    MARTIN/ELIAS PROPERTIES, LLC V. ACUITY, A MUTUAL INSURANCE COMPANY
    2016-SC-000195-DG KENTON

    BOARD OF COMMISSIONERS OF THE CITY OF DANVILLE, KENTUCKY V. ADVOCATE COMMUNICATIONS, INC., ETC.
    2016-SC-000280-DG BOYLECOMMONWEALTH OF KENTUCKY V. KYLE D. THOMPSON
    2016-SC-000365-DG HARDIN

    KENTUCKY UNEMPLOYMENT INSURANCE  JEFFERSON COMMISSION V. NORMAN WILSON, ET AL.
    2016-SC-000411-DG

    PHILLIP EDMONDSON V. COMMONWEALTH OF KENTUCKY BAUMANN PAPER CO.,
    2016-SC-000427-DG UNION

SC: December 2016 Attorney Discipline Cases

Madison Sewell; Christina Rose Edmonson; David Thomas Sparks; Parker Lee Clifton; Robert Hansford Hoskins; Delbert Keith Pruitt; Jason Elias Dutra; Genon Ginn Hensley; James Neal Tilson; Brian Thomas Canupp; Jeremy Joseph Gubin

  • Click here for the Kentucky Court Report’s index of each month’s summary by year and month.
  • Click here for the Kentucky Court Report’s index of each month’s minutes of all decisions by year and month.
  • Click here for Kentucky Court Report’s index of attorney discipline cases
  • Click here for grants of MDR (motions for discretionary review)

ATTORNEY DISCIPLINE: 

A. In re: Madison Sewell 

2016-SC-000355-CF December 15, 2016 

Opinion and Order of the Court. All sitting; all concur. Sewell tendered an application for admission to the Kentucky Bar without examination, relying on the provision in SCR 2.110 that allows for admission without examination for persons who have been admitted to practice law in another jurisdiction and are actively engaged in the teaching of the law. The Office of Bar Admissions denied his application, noting that Sewell’s employment as a high school pre-law teacher did not satisfy the requirements of the rule. The Supreme Court held that the nature of Sewell’s current employment was irrelevant because SCR 2.110 was inapplicable. Sewell had not practiced law for the requisite time period in a state that has reciprocity with Kentucky. Therefore, his application was untimely and was denied.

B. Kentucky Bar Association v. Christina Rose Edmonson 

2016-SC-000388-KB December 15, 2016 

Opinion and Order of the Court. All sitting; all concur. The charges against Edmondson arose from her failure to respond to discovery in a breach of contract case and her failure to file suit in a loan dispute. The Board noted that Edmondson had previously been suspended for failure to pay bar dues and comply with CLE requirements, a suspension that was ongoing; had been suspended for 180 days for failing to follow through with representation in other cases, which was also ongoing; and had not responded to the current charges. Therefore, the Board recommended that Edmondson be suspended for 181 days to be served concurrently with her 180 day suspension. The Court, noting that the current charges arose during the same time period as Edmondson’s prior charges, agreed with the Board and suspended Edmondson for 181 days to run concurrently with her 180 day suspension.

C. Kentucky Bar Association v. David Thomas Sparks 

2015-SC-000425-KB December 15, 2016 

Opinion and Order of the Court. All sitting; all concur. The Supreme Court entered an order suspending Sparks for 181 days, with 61 days to serve and the remainder probated for two years, with conditions. The Office of Bar Counsel moved to revoke probation and impose the remainder of the suspension because Sparks violated several conditions. Specifically, Sparks received new disciplinary 11

charges and failed to attend required ethics and business-management courses or establish an IOLTA account. Sparks was ordered to show cause why his probation should not be revoked but he failed to respond. Accordingly, the Court granted the Office of Bar Counsel’s motion and suspended Sparks for the remaining 120 days previously probated.

D. Kentucky Bar Association v. Parker Lee Clifton 

2016-SC-000476-KB December 15, 2016 

Opinion and Order of the Court. All sitting; all concur. Clifton was publicly reprimanded by the Supreme Court of Ohio for misconduct in a probate matter in Ohio. The Kentucky Bar Association’s Office of Bar Counsel filed a petition for reciprocal discipline under SCR 3.435. Seeing no reason why Clifton should not be subjected to identical discipline in Kentucky, the Supreme Court granted the petition and publicly reprimanded him.

E. Kentucky Bar Association v. Robert Hansford Hoskins 

2016-SC-000477-KB December 15, 2016 

Opinion and Order of the Court. All sitting; all concur. Hoskins’ license to practice law in Ohio was suspended indefinitely, subject to reinstatement by the Supreme Court of Ohio, due to his misconduct and violation of multiple ethics rules in several cases. The Kentucky Bar Association’s Office of Bar Counsel filed a petition for reciprocal discipline under SCR 3.435. The Supreme Court noted that it does not ordinarily impose indefinite suspensions unless an attorney fails to answer a charge. In this case, Hoskins did answer the charges in Ohio but failed to participate in the proceedings in Kentucky. Nevertheless, the Court held that there was no reason why Hoskins should not be subjected to identical discipline in Kentucky and suspended him indefinitely.

F. Kentucky Bar Association v. Delbert Keith Pruitt 

2016-SC-000487-KB December 15, 2016 

Opinion and Order of the Court. All sitting; all concur. Pruitt was charged with several counts of misconduct relating to his representation of a client in a felony case. Specifically, the Inquiry Commission charged Pruitt with failing to act with reasonable diligence in representing his client; failing to keep his client updated about her case and failing to respond to her requests for information; failing to timely return any unearned portion of a fee upon termination; and failing to response to the bar complaint. The matter was eventually submitted to the Board of Governors as a default case under SCR 3.201(1). A majority of the Board found Pruitt guilty of all four charges. After considering Pruitt’s disciplinary history and his lack of interest in defending himself against the current charge, the Board recommended a 61-day suspension.

Neither the Office of Bar Counsel nor Pruitt sought review by the Court under SCR 3.370(7) and the Court declined to undertake review under SCR 3.370(8). 12

Accordingly, the Court adopted the Board’s decision in full and suspended Pruitt from the practice of law for 61 days.

G. Kentucky Bar Association v. Jason Elias Dutra 

2016-SC-00490-KB December 15, 2016 

Opinion and Order of the Court. All sitting; all concur. Dutra was found guilty of nine counts of misconduct in three separate disciplinary files. All of the charges related to mishandling of client funds. Dutra never filed answers to the charges and the matter was eventually submitted to the Board of Governors as a default case under SCR 3.210. The Board unanimously found Dutra guilty of all counts and, after considering his discipline history, recommended permanent disbarment. Neither the Office of Bar Counsel nor Dutra sought review and the Court declined to undertake review. Accordingly, the Court adopted the Board’s decision in full and permanently disbarred Dutra from the practice of law in Kentucky.

H. Kentucky Bar Association v. Genon Ginn Hensley 

2016-SC-000491-KB December 15, 2016 

Opinion and Order of the Court. All sitting; all concur. Hensley was charged with several counts of misconduct stemming from four separate disciplinary files. The charges against Hensley arose from a misdemeanor conviction for failing to maintain automobile liability insurance and from three separate instances of failing to properly represent clients in bankruptcy matters. Hensley was served with all of the charges via certified mail but did not file an answer in any of the four cases. The Board of Governor voted to find Hensley guilty of all but one count and, after considering her history of discipline, a majority voted to recommend that Hensley be suspended from the practice of law for 181 days.

Neither the KBA’s Office of Bar Counsel nor Hensley sought review by the Supreme Court under SCR 3.370(7) and the Court declined to undertake review under SCR 3.370(8). Accordingly, the Board’s recommendation was adopted under SCR 3.370(9) and Hensley was suspended from the practice of law for 181 days.

I. Kentucky Bar Association v. James Neal Tilson 

2016-SC-000532-KB December 15, 2016 

Opinion and Order of the Court. All sitting; all concur. Tilson was suspended from the practice of law in Arizona for three years and the Kentucky Supreme Court imposed identical reciprocal discipline. Shortly thereafter, additional disciplinary proceedings against Tilson resulted in his permanent disbarment in Arizona. The Kentucky Bar Association’s Office of Bar Counsel filed a petition for reciprocal discipline under SCR 3.435. Seeing no reason why Tilson should not be subjected to identical discipline in Kentucky, the Supreme Court granted the KBA’s petition and permanent disbarred Tilson from the practice of law. 13

J. Brian Thomas Canupp v. Kentucky Bar Association 

2016-SC-000623-KB December 15, 2016 

Opinion and Order of the Court. All sitting; all concur. Canupp asked the Court to enter an order resolving the pending disciplinary proceeding against him by imposing a public reprimand. The charges against Canupp arose from his representation of a client in a wrongful death matter. Canupp admitted that his conduct violated the disciplinary rules as alleged in the charge. He reached an agreement with the Office of Bar Counsel to resolve this matter and asked the Court to enter an order in conformity with their negotiations. The Office of Bar Counsel did not object to Canupp’s motion. After reviewing the allegations, the admitted facts, comparable cases, and Canupp’s previous disciplinary record, the Court concluded that the proposed sanction was appropriate and publicly reprimanded Canupp.

K. Jeremy Joseph Gubin v. Kentucky Bar Association 

2016-SC-000624-KB December 15, 2016 

Opinion and Order of the Court. All sitting; all concur. Gubin was arrested and charged with felony first-degree possession of a controlled substance. He pled guilty and was sentenced to three years of supervised diversion and several conditions, including the condition that he not practice law during the period of diversion. Based on his conviction, Gubin was charged by the Inquiry Commission with having violated SCR 3.130-8.4(b), which state that it is professional misconduct for a lawyer to “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects. Gubin admitted that his conduct violated the rule and reached an agreement with the Office of Bar Counsel to resolve this matter. He petitioned the Supreme Court to enter an order in conformity with the negotiated sanction, which would suspend him from the practice of law for a period of three years and require him to maintain participation in KYLAP and remain illegal-drug and alcohol free during his suspension. The Office of Bar Counsel did not object to Gubin’s motion and asked that it be granted. After reviewing the allegations, the admitted facts, the comparable cases and Gubin’s previous disciplinary history, the Court concluded that the negotiated sanction was adequate and suspended Gubin from the practice of law for three years, with conditions.

SC: December 2016 Monthly Summaries of Published Opinions from Supreme Court of Ky

No decisions for month of November 2016.

Here are the December 2016 summaries of published decisions and attorney disciplinary orders from the Supreme Court of Kentucky which have been prepared by the Administrative Office of the Courts.

  • Click here for the AOC Indexed Summaries by year and month.
  • Click here for the Kentucky Court Report’s index of each month’s summary by year and month.
  • Click here for the Kentucky Court Report’s index of each month’s minutes of all decisions by year and month.

Selected civil, torts, and insurance decisions that were published.

ATTORNEY FEES
Thomas K. Stone v. Pennie Dubarry (now Detorres), et al.
2015-SC-000040-DG December 15, 2016

Opinion of the Court by Justice Noble. All sitting. Minton, C.J.; Hughes and Cunningham, JJ., concur. Venters, J., concurs by separate opinion in which Wright, J., joins. Keller, J., concurs in result only by separate opinion. The Appellant, an attorney, represented the wife in a divorce dissolution proceeding. Unbeknownst to the husband, the Appellant’s employment contract with the wife granted the Appellant a lien “on all Client’s assets, now owned and hereafter acquired to secure payment” of attorney fees and costs. With the Appellant’s assistance in negotiations, the parties eventually entered into a property-settlement agreement. It provided that the husband would retain ownership of the marital residence and pay the wife $20,000 for her interest in the home. The agreement stipulated that those funds would come from refinancing the property. The Appellant never advised the husband during negotiations that he had a contractual lien against his client’s property as security for payment of his fee. The trial court entered a decree of dissolution incorporating the property-settlement agreement. Thereafter, the wife failed to pay the Appellant his fee, and he filed a notice of a lien in the amount of $7,142.82 against the marital residence. The trial court granted the husband’s motion to release the lien, and the Court of Appeals affirmed.

Having granted discretionary review, the Supreme Court affirmed. It held that the statute governing attorney-fee liens, KRS 376.460, does not apply to property assigned or divided in divorce proceedings. The Court further held that although an attorney may, in the alternative, obtain a contractual lien on marital property though a contract of employment, such liens will not be effective against property belonging to third parties unless they have timely notice of the lien. Because the Appellant gave the husband no notice of his contractual lien on the wife’s interest in the marital residence, the trial court was correct to release it once the husband became the property’s sole owner.

TRIAL  EVIDENCE.  SEPARATION OF WITNESSES RULE.

Kathy McAbee v. Darren C. Chapman, M.D.
2014-SC-000555-DG December 15, 2016

Opinion of the Court by Justice Hughes. All sitting; all concur. This medical malpractice action against a surgeon resulted in a jury verdict for the defendant. Upholding that result in an unanimous opinion, the Supreme Court agreed with the plaintiff/appellant that the trial court had misapplied the separation of witnesses rule (Kentucky Rule of Evidence 615) when it excepted from the rule two of the defendant’s expert witnesses without requiring an adequate showing of necessity for the expert witnesses’ presence in the courtroom during the testimony of other witnesses. The Supreme Court held, however, that having reviewed the trial testimony in its entirety the error was harmless.

GOVERNMENTAL IMMUNITY
Kentucky River Foothills Development Council, Inc. v. Cathy Phirman, Etc.., et al.
2015-SC-000244-DG December 15, 2016

Opinion of the Court by Justice Keller. All sitting. Minton, C.J.; Cunningham, Noble and Wright, JJ., concur. Venters, J., concurs in result only by separate opinion in which Hughes, J., joins. Kentucky River is a community action agency which receives and distributes federal block grants in order to alleviate poverty by providing employment opportunities and improving living conditions of the poor. One of the entities Kentucky River administers is Liberty Place Recovery Center for Women, an in-house peer-based substance abuse treatment facility. Melissa Steffen, who suffered from bipolar disorder, had been approved for parole but could not be released from prison until she found a suitable residence. In order to facilitate Melissa’s release from prison, her mother arranged for Melissa to be placed at Liberty Place. While Melissa was at Liberty Place, she ran out of her medication and her mental state began to deteriorate to the point that she left the facility. Following a number of alleged mis-steps by Liberty Place staff, Melissa committed suicide. Her estate filed suit against Liberty Place and Kentucky River. Kentucky River filed a motion for summary judgment arguing that it was entitled to governmental immunity. Relying on Comair, Inc. v. Lexington-Fayette County Airport Corp., 295 S.W.3d 91 (Ky. 2009), the circuit court denied Kentucky River’s motion. The Court of Appeals affirmed, finding that Kentucky River could not pass Comair’s “parent test” because it had not been created by an immune parent.

The Supreme Court affirmed. The majority noted that the Comair test contains two parts: whether the agency is the “child” of an immune “parent;” and whether the agency performs an integral state function. The majority noted that the circuit court and the Court of Appeals focused on Kentucky River’s parentage when the primary problem is Liberty Place’s function. The majority noted that Kentucky River argued it was performing a governmental function – alleviating poverty. However, the majority held that, if the alleviation of poverty is a governmental function, providing drug rehabilitation is not because providing drug rehabilitation alleviates substance abuse, not poverty. Therefore, Kentucky River did not meet the second prong of the Comair test. In his separate concurring opinion, Justice Venters stated that none of Kentucky River’s operations would be entitled to immunity because Kentucky River was performing a federal function not a state function.

December2016