COA: January 22, 2016 Court of Appeals Decisions (Minutes)(65-78). 14 decisions; 5 published decisions

Published - Zoning, Untimely RCr 11.42, Termination of parental rights and counsel, Notice of workers compensation claim, and Parental visitation termination. Not to be Published - Personal jurisdiction, Summary judgment.

Fayette Collage

Top left is newest Judicial Center for Fayette County, Lexington, Kentucky. Bottom left is the fifth courthouse, with top right a postcard. Bottom center is statue of Gen. John Hunt Morgan at the fifth courthouse. Bottom right is the federal courthouse in Lexington. All these are within 3 or 4 block area.

Published Court of Appeals appellate cases for  this week –  January 22, 2015:    Links are to full text of PDF decision with AOC.

68.  Zoning.
Robert Huxol vs. Daviess County Fiscal Court
Court of Appeals Published Opinion Affirming – Daviess
D. LAMBERT, JUDGE: This is an appeal from the Daviess Circuit Court which upheld the Daviess County Fiscal Court’s August 2, 2012 decision to rezone 692 acres of agricultural land for coal mining. After careful review, we affirm.

73.  RCr 11.42 untimely filed
Tammy Skaggs vs. Commonwealth of Kentucky
Court of Appeals Published Opinion Affirming – Larue
KRAMER, JUDGE: Tammy Skaggs appeals the Larue Circuit Court’s order denying her RCr1 11.42 motion to vacate her sentence. After a careful review of the record, we affirm because Skaggs’s RCr 11.42 motion was untimely filed, her claim that the circuit court erred in ordering her to undergo counseling lacks merit, and her remaining claims are not properly before us on appeal.

76.  Family Law.  Termination of Parental Rights.
W.(T.)  vs. Cabinet for Health and Family Services
Court of Appeals Published Opinion Reversing and Remanding – Fayette
THOMPSON, JUDGE: T.W. (mother) and J.I.T. (father) appeal separately from an order and judgment of the Fayette Family Court terminating their parental rights to their minor child. The issues presented are whether mother and father were denied their statutory right to counsel and whether there was sufficient evidence to warrant termination. We conclude that reversal is required in both appeals on the basis mother and father were denied effective assistance of counsel when the family court proceeded with the termination hearing after counsel requested that he be permitted to withdraw based on a conflict of interest. The issue concerning the sufficiency of the evidence to warrant termination is moot

77.  Workers Compensation. Notice of Claim.
American Woodmark Corp.  vs. Danny Mullins
Court of Appeals Published Opinion Affirming.  Workers Comp
THOMPSON, JUDGE: Danny Mullins filed this workers’ compensation claim after he sustained a work-related injury while in the employ of American Woodmark Corp. American Woodmark petitions this Court to review the opinion and order of the Workers’ Compensation Board affirming in part, vacating in part and remanding the opinion award and order and opinion and order on remand of the Administrative Law Judge (ALJ). American Woodmark argues the ALJ erred in finding it did not show good cause for its failure to file a Form 111 (notice of claim denial or acceptance) within the forty-five-day time limit as provided in Kentucky Revised Statutes (KRS) 342.270(2) and 803 Kentucky Administrative Regulations (KAR) 25:010, § 5(2)(a). Alternatively, it argues Mullins waived the issue of the timeliness of the Form 111. It further argues: (1) the evidence does not support the finding that Mullins’s psychological claim was work-related; (2) the Board erred when it remanded the case to the ALJ for additional consideration of permanent partial disability (PPD) or medical determinations; and (3) there was no evidence of an intentional safety violation. We affirm.

78. Family Law/ Parental visitation. Real Party in Interest.  Writs.
Shannon Patterson vs. Winchester
Court of Appeals Published Opinion and Order Denying – Whitley
JONES, JUDGE: This case is before the Court, pursuant to CR1 76.36, on three petitions for writs asking this Court to 1) prohibit the Whitley Circuit Court from enforcing its order resuming the parental visitation schedule of Real Party in Interest Corcoran; 2) prohibit the court from “modifying, amending, vacating or reversing” a Domestic Violence Order (DVO) entered against Corcoran by the Fayette Family Court; and 3) mandate that the Whitley Circuit Court honor the Fayette Family Court’s DVO.


Selected “not to be published” Opinions–

66.  Wrongful death. Experts.
Julian Ann Mindel vs. Fluor Enterprises, Inc.
COA Not to Be Published Opinion Affirming – Jeffeson

STUMBO, JUDGE: Julia Ann Mindel, Ancillary Executrix of the Estate of Oscar Mindel, Jr., appeals from a Summary Judgment of the Jefferson Circuit Court in her action alleging a breach of duty resulting in the decedent’s death due to long- term asbestos exposure. She argues that the trial court erred in excluding an expert witness who would have testified that the Appellees deviated from the standard of care. She also contends that even if the testimony were properly excluded, Summary Judgment was improperly rendered. For the reasons stated below, we find no error and AFFIRM the Summary Judgment on appeal.

67.  Personal jurisdiction.   Premature summary judgement, opportunity to conduct discovery.
Cheryl Clark vs. Dr. Richard M. Kolbell
COA Not to Be Published Opinion Affirming in Part, Reversing in Part and Remanding – Jefferson

THOMPSON, JUDGE: Cheryl Clark appeals from a summary judgment granted on the basis that Kentucky lacked personal jurisdiction over Dr. Richard M. Kolbell.

On November 1, 2012, Clark filed a complaint against PsyBar and Dr. Kolbell, alleging: (1) PsyBar and Dr. Kolbell committed negligence per se by issuing a medical (psychological) evaluation without being licensed to practice medicine or psychology in Kentucky; (2) PsyBar acted negligently in hiring and relying upon Dr. Kolbell’s opinion; and (3) the evaluation issued by PsyBar and Kolbell was defamatory per se because it implied Clark was untruthful concerning her disabling condition. Clark sought damages for the loss of her permanent disability benefits for the remainder of her life, damage to her reputation and punitive damages.

Accordingly, we affirm Jefferson Circuit Court’s grant of summary judgment as to the determination that no waiver of personal jurisdiction took place, affirm the grant of summary judgment as to lack of personal jurisdiction under KRS 454.210(1)(a)1., 3. and reverse and remand the grant of summary judgment as to lack of personal jurisdiction under KRS 454.210(1)(a)4. for Clark to have an opportunity to conduct discovery on this issue.

Download (MNT01222016.pdf, PDF, Unknown)

COA: February 2016 Oral Argument Calendar for Court of Appeals

Dates: Feb 9 @ Frankfort; Feb 24 @ Louisville; Feb 29 @ Elizabethtown

Fifth Courthouse for Fayette County, Lexington, Kentucky. Construction began in 1898 on the same site as three earlier courthouses at a cost of $187,181. It is now pending renovation at a projected cost of $30 million.

Fifth Courthouse for Fayette County, Lexington, Kentucky. Construction began in 1898 on the same site as three earlier courthouses at a cost of $187,181. It is now pending renovation at a projected cost of $30 million.

Some of the issues are:

  • Open records dispute involving alleged invalidity of an administrative regulation

  • Appeal from summary judgment which found the deceased did not substantially comply with the changing of beneficiaries of an IRA account.

  • Appeal from judgment in declaration of rights action. Did trial court err in holding that insurance policy did not provide defense and coverage in class action suit against company that purchases and collects on delinquent tax certificates? Did trial court err in holding that Kentucky contract law should be applied in interpreting insurance policy?

  • Whether trial court properly dismissed claims of negligence against off-duty Versailles police officer who ordered 2 drunks to leave rural venue where he was privately employed as a security officer. Appellants were severely injured and their child killed by drunk driver.

  • Whether circuit court erred by denying JNOV/new trial; whether circuit court properly instructed jury.

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

For a complete list of archived argument calendars at the Administrative Office of the Courts, then click here.

Here is the complete list for this month’s COA argument calendar with case names, dates, times, location, parties, counsel:

Download (February2016.pdf, PDF, Unknown)

Kentucky Court Report – Subscriber Update, Facebook Place and Pinterest Photos of Courthouses.

Of subscribers, FaceBook, and Pinterest:

  1.  We are now have 660 email subscribers. As always, the price is right!  Free.  Would love to have more folks receiving these updates.  Soooooo, please share the word.
  2. We also have a Facebook page where we post the blog pages, plus share whatever legal and legislative news stories I pick up from the readers or my morning read of the Courier-Journal.  A “like” would be appreciated to extend our reach.  Click here for our Facebook link.
  3. I also share many of the photos of the Courthouses, courthouse squares, and judicial centers throughout Kentucky on Pinterest.   Click here for our Pinterest link.

 

SC: January 2016 – No Oral Arguments Scheduled this month before Ky Supreme Court

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.

COA: January 2016 Oral Argument Calendar for Court of Appeals

Dates: January 21 (Louisville), 27 (Frankfort) & 28 (Frankfort), 2016.

IMG_0689

Carter County Judicial Center at Grayson, Kentucky

Some of the issues are:

  • Whether circuit court properly rendered summary judgment concluding that Kentucky National Insurance Co. properly rescinded motor vehicle insurance coverage based upon a material misrepresentation on Jan. 21;
  • Whether circuit court properly rendered summary judgment dismissing Taylor’s action as Kentucky did not possess jurisdiction over same on Jan. 21;
  • MOR appeal from jury verdict in favor of Appellee in auto accident case. Issues are whether trial court erred in refusing to set aside verdict and for new trial on grounds of improper closing argument by  appellee’s counsel, excessive verdict and admission of a portion of deposition testimony. On cross-appeal Appellee argues that trial court improperly modified judgment. Jan. 27.
  • An appeal of the trial court’s certification of truck drivers as a class and the appeal of the denial of partial summary judgment. Jan. 27.

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

For a complete list of archived argument calendars at the Administrative Office of the Courts, then click here.

Here is the complete list for this month’s COA argument calendar:

Download (January2016.pdf, PDF, Unknown)

COA: January 15, 2016 Court of Appeals Decisions (Minutes)(35-64). 30 decisions; 2 published decisions

Published: Investigatory traffic stop reversed; arbitration waived by litigation. Others: Post Shelton, Carter and Dick's Sporting Goods "slip and fall" easily reversed with no "open and obvious defense."

Bath County is the 5th county formed in Kentucky (1811). Owingsville is county seat. Picture is of the 3rd courthouse which was built in 1866 at a cost of $34,000. The 2nd courthouse was on the same site but was carelessly burned down by bivouacing federals on May 21, 1864. Portrait of Richard H. Menefee adorns the courtroom. Menefee was was a U.S. Representative from Kentucky. Due to his oratory skill, he was dubbed “the young Patrick Henry of the West.” He was presumed the successor to Henry Clay as leader of the Whig Party until his death at age thirty-one. In 1836, Menefee was elected to the House of Representatives. His best known speech in that body urged restraint in the Caroline affair with the British. His reputation, and that of fellow Kentuckian John J. Crittenden, were tarnished due to their involvement in a duel between Representatives William J. Graves and Jonathan Cilley in which the latter was mortally wounded. He did not stand for re-election following his term in office and returned to his legal practice. In 1841, he was elected to the U.S. Senate, but died five days later before he could take office. Menifee County, Kentucky, despite the spelling discrepancy, is named in his honor. The white Owings House was designed by the architect of the capitol, Benjamin Latrobe.

Published Court of Appeals appellate cases for  this week –

January 15, 2015:    Links are to full text of PDF decision with AOC.

39.  Criminal Procedure.  Search and Seizure.  Illegal investigatory traffic stop and detention.
Charles Pulley vs. Commonwealth of Kentucky
Court of Appeals Published Opinion Reversing. Livingston.
THOMPSON, JUDGE: Charles Pulley was charged with menacing and seconddegree disorderly conduct. Pulley confronted police at a traffic safety checkpoint after an officer removed Pulley’s firearm from his vehicle and checked the firearm’s serial number. Following a jury trial in the Livingston District Court, Pulley was acquitted of menacing but convicted of second-degree disorderly conduct. He appealed to the Livingston Circuit Court arguing the district court erroneously denied his motion to suppress and his motion for a directed verdict. The circuit court affirmed. We granted discretionary review. Reversed.

43.  Arbitration.
Kathleen Imhoff vs Lexington Public Library Board of Trustees
Court of Appeals Published Opinion Vacating and Remanding.  Fayette.

 We do agree with Imhoff that once the arbitration award had been entered, the trial court had little latitude to evaluate the substance of the award. See KRS 417.160. However, that argument is moot under the specific facts of this case. We conclude that the trial court erred by ruling that Imhoff had not waived her right to arbitrate the dispute between the parties. It was incumbent upon the court to set aside its earlier order compelling arbitration to void the arbitration proceedings in their entirety, and to proceed with the litigation of this case in the judicial forum that Imhoff herself had elected. We vacate the opinion and order of the Fayette Circuit Court confirming, in part, the arbitrators’ award, and we remand this case for further proceedings. By separate order, we deny Imhoff’s motion to dismiss portions of the cross-appeal.

 

Selected “not to be published” Opinions–

38.  Premises Liability.  Open and obvious defense prevailed at trial but Shelton and Dick’s Sporting Goods and Carter were decided afterwards and case now reversed.
Janice Ward vs. JKP Investements LLC
Court of Appeals NONPublished Opinion reversing, vacating and remanding.  Jefferson.

In this case, the record seems sufficiently clear that the step in question, although not a crumbling ruin, was not in pristine condition and that a pre-existing handrail had been removed. Thus, under the authority of McIntosh, Shelton, and Carter, sufficient questions of fact exist which preclude summary judgment. The trial court therefore erred in granting JKP’s motion for summary judgment. This matter is therefore remanded to the Jefferson Circuit Court for further proceedings consistent with the directive of the Supreme Court of Kentucky in Carter.

In a previously rendered opinion, a majority of this panel determined that the facts of this case constituted the “appropriate case” noted in Shelton. On Ward’s motion for discretionary review, the Supreme Court of Kentucky vacated our opinion and remanded this matter for consideration in light of Carter. Ward v. JKP Investments, LLC, 2015-SC-000099-D (Ky., Dec. 10, 2015).

46.  Appeal.  Dismissing appeal as untimely taken from interlocutory order.
Charlotte Hare vs. Grange Mutual Casualty Co.
COA Not to Be Published Opinion Dismissing Appeal.  Adair.

Finally, we note the October 17, 2013, order which contained finality language pursuant to CR 54.02 adjudicated all of the claims as between Hare and Maryland and as between Grange and Maryland. However, it had no effect on the remaining claims between Hare and Grange. Thus, Grange’s reliance on the language contained in that order—in support of its contention Hare’s October 30, 2013, motion for relief was untimely filed—is misplaced as the trial court retained jurisdiction to modify or correct its prior interlocutory orders relating to Hare’s bad faith claim against Grange. For the foregoing reasons, this appeal must be and hereby is, DISMISSED.


 

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.

The complete set of this week’s minutes listing all decisions (published and not to be published) with links to the full text of each at the AOC,  are below:

Download (MNT01152016.pdf, PDF, Unknown)

COA: January 8, 2016 Court of Appeals Decisions (Minutes) 1 through 34. 34 decisions; 3published decisions

Published: Judge abused discretion in denying continuance in criminal case; written contract immunity waiver per KRS 451A.245 includes employment contracts; affirmed dismissal of pro se legal mal claim for not having expert. Other: 16 medical negligence, fraud, credentialling cases against Dr. Trover in Hopkins; in one case one med-mal claim too late and the other maybe not too late looking at "knew or should have known" rule

JCUP2013demonstreation

Published Court of Appeals appellate cases for  this week –

January 8, 2015:    Links are to full text of PDF decision with AOC.

17.  Criminal Law.  Trial Court abused discretion in denying motion for continuance.
John William Smith vs. Commonwealth of Kentucky 
Court of Appeals Published Opinion  Affirming;  Hopkins

18.  Immunity Waiver.  KRS 45A.245’s waiver of immunity for actions brought on written contracts applies to employment contracts
University of Louisville vs. Dr. James Weldon Lillard, Jr.
Court of Appeals Published Opinion  Affirming.  Franklin.

25.     Attorney malpractice.  Affirmed dismissal of pro se claim of legal malpractice for failure to have expert witness.
Kevin M. Gleason vs. Nicholas Nighswander, PLLC
Court of Appeals Published Opinion Affirming.  Boone.


Selected “not to be published” Opinion

1.  Medical negligence, statute of limitations, IIED and negligent infliction of emotional distress, fraud
Estate of Mary Crutcher vs.  Philip C. Trover, MD,et al
COA Not to Be Published Opinion Affirming.  Hopkins.

Appellants present three general arguments for our consideration. Those arguments are: (1) the entry of summary judgment on their medical negligence claims was both improper in light of the ample medical evidence in the record creating a genuine issue of material fact and premature; (2) sufficient evidence of outrage/IIED and negligent infliction of emotional distress was presented to warrant a denial of summary judgment; and (3) sufficient evidence of fraud was presented to warrant a denial of summary judgment.

2.  Appeal did not transfer jurisdiction to COA.  Plaintiff had died, and action revived.
Gracie Duvall vs.  Phillip C. Trover MD, et al
COA Not to Be Published Opinion Dismissing.  Hopkins

The notice of appeal filed in October 2012 in the name of a person who died before the judgment was entered did not transfer jurisdiction of the case to this Court. The circuit court never lost jurisdiction. Having authorized revival of the case, it should proceed as though nothing occurred between the date of Duvall’s death and the date of revival.

3.  Medial Negligence. Affirmed dismissal for statute of limitations based upon date knew or should have known medical negligence but reversed on other claims
Estate of Geneva Adams vs. Philip C. Trover MD
COA Not to Be Published Opinion Affirming in part and reversing in part.  Hopkins.

Similarly, we know the alleged negligence of August 20, 2003, could not have been discovered before that date. And, again, we know Adams initiated litigation based on that alleged negligent act on February 28, 2005. As with the July 2003 conduct, we cannot determine, as a matter of law, that Adams had been put on notice of this next claim before February 28, 2004. We can only determine that, as a matter of law, Adams knew or should have known on April 12, 2004, that Dr. Trover’s August 20, 2003 conduct might have caused her injury. As with the July 2003 conduct, if there is evidence that put Adams on notice of her claim between August 20, 2003, and February 28, 2004, it has not been brought to our attention.

Therefore, we must reverse the summary judgment as to Adams’ claims based on Dr. Trover’s July 18 and August 20, 2003 conduct. This ruling does not prohibit a future grant of summary judgment on any other ground, nor does it prohibit the grant of summary judgment upon the defense of limitations provided, however, that further discovery reveals evidence demonstrating Adams knew or should have known, before February 28, 2004, that her injury resulted from Dr. Trover’s 2003 conduct.

4.  Medical Negligence. Affirmed dismissal per SOL
Robert Brown vs. Philip C. Trover MD
COA Not to Be Published Opinion Affirming.  Hopkins.

Appellant Robert Brown brings this appeal from the Hopkins Circuit Court’s August 18, 2008 and September 16, 2008 summary judgment and order dismissing his medical negligence and fraud actions against Dr. Philip Trover, and the October 3, 2009 and May 8, 2012 orders dismissing his medical negligence, negligent credentialing, and fraud actions against Baptist Health Madisonville f/k/a Trover Clinic Foundation.1 The circuit court determined Brown did not file any of his claims against Dr. Trover within the statutorily prescribed limitations period; furthermore, the court found no evidence that either Appellee engaged in any conduct that prevented Brown from discovering any of his claims. The court also determined that the claims against the Foundation for medical negligence and negligent credentialing were not timely filed. Finally, the court ruled that Brown presented no evidence to create a genuine issue of material fact regarding Brown’s various fraud claims against the Foundation. For the reasons stated below, we affirm.

Only the first four of the Trover cases were selected to be include in this post.  However, there are a total of 16 decisions on multiple issues pertaining to Dr. Trover and the medical facility.  See the minutes for decisions 1-16.

23.  Workers Compensation.  Affirmed dismissal based upon exclusive remedy of workers compensation act.
Brenda McMican vs.  Martin & Bayley, Inc. d/b/a Huck’s Convenience Store
COA Not to Be Published Opinion Affirming.  Webster


 

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.

The complete set of this week’s minutes listing all decisions (published and not to be published) with links to the full text of each at the AOC,  are below:

Download (MNT01082016.pdf, PDF, Unknown)

SC: December 17, 2015 Supreme Court of Ky Decisions (Minutes 178-203)

26 decisions; 11 published; 5 attorney disciplinary decisions published; and 5 cases granted discretionary review

Ashland.birdseye view Edited1

Old Post Card Depicting a “birds eye” aerial view of Ashland, Kentucky in Boyd County

Selected published decisions:

178.  Criminal Law.  Failure to maintain auto insurance.  Issue on restitution not properly before SCOKY
Tammy Dillard vs. Criminal Law
Supreme Court of Kentucky Published Opinion Affirming – Jefferson Circuit Court

Questions Presented: “Failure of owner to maintain required insurance. KRS 304.39-080. Conditional Guilty Plea. Restitution. Appeal.”

Appellant Tammy Dillard entered a conditional guilty plea to Failure of Owner to Maintain Required Insurance/ Security and received a two year sentence, conditionally discharged, with “restitution to be determined.” The restitution issue arose when Dillard, while driving her uninsured vehicle, collided with another vehicle, allegedly causing $3,600 in damages. Before the Jefferson District Court conducted the restitution hearing, Dillard appealed to the circuit court, which dismissed the appeal because there was no “final action” from the district court as required to invoke the circuit court’s appellatejurisdiction under Kentucky Revised Statute (KRS) 23A.080(1). On discretionary review, the Court of Appeals affirmed and, on discretionary review, this Court also affirms the lower courts’ holdings with regard to lack of appellate jurisdiction in this matter. Although both Dillard and the Commonwealth are interested in securing a ruling on whether restitution is statutorily available given the facts of this case, that issue is not properly before us and we decline to issue an advisory opinion. This case illustrates the wisdom of Kentucky statutes and rules that premise an appeal to a higher court on the existence of a final order or action from the court below. Finality of a district court’s judgment is not only a prerequisite to invoking the circuit court’s appellate jurisdiction, it assures the availability of a complete record, allowing for more complete and efficient appellate review of all issues including those that one or both parties may view as purely legal.

179.  Criminal Law. Search and seizure. Roadblocks.
Commonwealth of Kentucky vs. Billy Cox
Supreme Court of Kentucky Published Opinion Affirming – Marion Circuit Court
Questions Presented: Criminal Law. Constitutional Law. Fourth Amendment. Roadblocks. Commonwealth v. Buchanon, 122 S.W.3d 565 (Ky. 2003). Issue is whether a roadblock was unconstitutionally established and conducted under controlling Kentucky and federal law.

180. Estate and Inheritance Tax.
Est. of Mildred L. McVey vs. Dept of Revenue
Supreme Court of Kentucky Published Opinion Affirming – Franklin Circuit Court
Questions Presented:Estate and Inheritance Tax. Wills. Administrative Law. Issues include the effect of a will clause directing that inheritance taxes be deducted as a cost of administration and taxation of “bequests of tax.”

This case raises three legal questions. First, does a reviewing court owe any deference to the Kentucky Board of Tax Appeals as to questions of law? Second, may inheritance taxes paid as a “cost of administration” under a will’s tax-exoneration provision be deducted from the value of distributive shares under KRS 140.090 and thereby reduce the overall tax liability? And, third, is the payment of tax by an estate on behalf of a beneficiary under a tax- exoneration clause itself a taxable “bequest of tax”?

181.  Criminal Law
Marcus D. Greene vs. Commonwealth of Kentucky 
Supreme Court of Kentucky Published Opinion Affirming – Jefferson Circuit Court
Questions Presented: Trial court did not abuse its discretion in overruling defendant’s motion to withdraw his guilty plea where the defendant did not rely on the alleged inaccurate advice from counsel about jail-time credit and was not prejudiced by it.

182. Family Law.
Commonwealth of Kentucky Cab. for Health and Family Services vs. S.H.
Supreme Court of Kentucky Published Opinion Affirming and Remanding = Clay Circuit Court
Questions Presented:  Family Law. Rules. Issues involve whether the witness and exhibit lists requirements of FCRPP 7(1) apply to termination of parental rights cases

Upon petitions by the Cabinet for Health and Family Services (the Cabinet), the Clay County Family Court terminated the parental rights of S.H. with regard to her four children.S.H. apealed to the Court of Apeals, which reversed and vacated the termination orders, 2finding that the family court erroneously applied Family Court Rule of Practice and Procedure (FCRPP) 7(1). This Court granted discretionary review, and for the reasons stated herein, we affirm the opinion of the Court of Appeals.

183.  Criminal Law.
Commonwealth of Kentucky vs. Michael Young
Supreme Court of Kentucky Published Opinion Affirming in Part, Reversing in Part, and Remanding – Lawrence Circuit Court
Questions Presented:   Criminal Law. KRS 514.040. Theft By Deception. Adoption. Birth Mother Living Expenses. Issues include whether the trial court correctly refused to dismiss theft by deception charges against birth parents who solicited and accepted living expenses from prospective adoptive parents without disclosing that they had already accepted living expenses from an adoption agency representing other prospective adoptive parents.

184.  Criminal Law.  Jury Selection, Jefferson County Method
Adam Anthony Barker vs. Commonwealth of Kentucky 
Supreme Court of Kentucky Published Opinion Reversing – Jefferson Circuit Court
Questions Presented: Error to give provocation qualification to self-protection instruction which was not supported by the evidence. Second-degree manslaughter instruction was problematic but unpreserved for review. Trial court’s jury selection methodology deviated from the guidelines found in the criminal rules but said deviation was not substantial.

Abramson, J., Concurs, and Believes This Case Illustrates the Value of the So-Called Jefferson County Method of Voir Dire (a Method the Trial Court Did Not Employ in This Case) and Underscores the Wisdom of Amending Our Criminal Rules and Administrative Procedures to Approve Expressly of This More Efficient and Effective Means of Jury Selection.

185.  Civil.  Contempt Procedure.  Family Court.
Cabinet for Health and Family Services vs.  J.M.G.
Supreme Court of Kentucky Published Opinion Reversing and Remanding – Fayette Circuit Court
Questions Presented:  Contempt. Issue is whether the Family Court erred in holding the Cabinet for Health and Family Services in contempt as a result of the failure of an attorney employed by the Cabinet to follow statutes and court rules.

186.  Family Law. Property Settlement.
Ruth Ann Sadler vs. Barbara Lois Van Buskirk
Supreme Court of Kentucky Published Opinion Reversing and Remanding k- Fayette Circuit Court
Questions Presented:  Family Law. Property Settlement Agreements. Retirement Accounts. Issues include whether the property settlement agreement provision stating that the ex-wife disclaimed her interest in the retirement account owned by the ex-husband was sufficient to rescind the form he filed with the investment company during the marriage naming her as beneficiary upon his death.

187.  Criminal Law.  Palpable error.
Commonwealth of Kentucky vs. Joe Taylor
Supreme Court of Kentucky Published Opinion Reversing and Remanding – Fulton Circuit Court
Questions Presented:  Criminal Law. Palpable Error. Issues involve the lack of defense objection to reference at trial to the defendant’s testimony in support of suppression of evidence seized from his bedroom

188.  Criminal Law.
Patrick Deon Ragland vs. Commonwealth of Kentucky 
Supreme Court of Kentucky Published Opinion Reversing and Remanding – Fayette Circuit Court
Questions Presented: Second degree manslaughter, tampering with physical evidence and PFO I – 20 years. Trial court erred in adding a “no duty to retreat” jury instruction to a general self-protection instruction and by inadequately instructing the jury on the justifiable use of force to protect against unwanted sexual intercourse compelled by force or threat.

Download (MNT122015.pdf, PDF, Unknown)

COA: December 23, 2015 Court of Appeals Decisions (Minutes) (999-1014). 16 decisions; 5 published decisions

PUBLISHED -- Physician-Hospital employment contract dispute; Probation revocation; Consecutively running sentences; Untimely appeal; Workers Compensation. NONPUBLISHED: Compelled arbitration

Anderson County Courthouse Postcard, Lawrenceburg, Kentucky.

Anderson County Courthouse Postcard, Lawrenceburg, Kentucky.

Published Court of Appeals appellate cases for  this week –

December 23, 2015:    Links are to full text of PDF decision with AOC.

999.  Employment.  Hospital employment physician contract
Ziad William Sara, M.D. vs. Saint Joseph Healthcare System
Court of Appeals Published Opinion  Affirming and remanding Fayette Circuit Court

MAZE, JUDGE: The Appellant, Ziad William Sara, M.D. (Dr. Sara) appeals from an order of the Fayette Circuit Court dismissing his claims against Saint Joseph Medical System, Inc. (the Hospital) for violation of administrative due process and for breach of contract. We agree with the trial court that the Hospital was not functioning as a “de facto” state agency and consequently was not subject to the requirements of KRS1 Chapter 13B. We also agree with the trial court that the Hospital’s Medical Staff Bylaws do not constitute an enforceable contract. Hence, we affirm the trial court’s order dismissing these claims and remand for further proceedings on Dr. Sara’s remaining claims against the Hospital.

1004.  Criminal Law.  Reversed circuit court order revoking probation
Cassandra Blankenship vs. Commonwealth of Kentucky 
Court of Appeals Published Opinion Reversing and Remanding – Boyd Circuit Court

On remand, the trial court shall enter findings as to both elements of KRS 439.3106(1). Then, consistent with both Andrews and McClure, the trial court must conclude whether revocation or a lesser sanction is appropriate.

1009. Criminal Law.  Sentence. Running Consecutively.
Michael Eldridge vs. Commonwealth of Kentucky
Court of Appeals Published Opinion Affirming – Johnson Circuit Court

LAMBERT, J., JUDGE: In these consolidated appeals, Michael Eldridge seeks review, pursuant to conditional guilty pleas, of four judgments of the Johnson Circuit Court sentencing him to four one-year, consecutive sentences for convictions on charges of second-degree trafficking in a controlled substance.  Because the Supreme Court of Kentucky’s recent decision in Commonwealth v. Gamble, 453 S.W.3d 716 (Ky. 2015), supports the circuit court’s decision to run the sentences consecutively, we affirm.

1010.  Appeal dismissed as untimely.  SOL.
Wesley Anglin vs. Justice & Public Safety Cabinet
Court of Appeals Published Opinion and Order Dismissing – Franklin Circuit Court

The circuit court denied the motion for reconsideration by order entered March 20, 2014, and the clerk noted that the order was served on all parties that day by first class mail. On April 22, 2014, Anglin filed a motion to proceed in forma pauperis and tendered his notice of appeal from the March 20, 2014, order. After some delay related to the court’s ruling on his status as a pauper, the notice of appeal was filed on November 25, 2014. In its brief, the Cabinet contends that Anglin’s appeal should be dismissed pursuant to CR 73.02(1) as untimely filed. We agree.

1014.  Workers Compensation.
Adja Diop vs. Zenith Logistics
Court of Appeals Published Opinion Reversing – Workers Compensation Board

LAMBERT, J., JUDGE: Adja Diop has petitioned this Court for review of the opinion of the Workers’ Compensation Board (the Board) reversing and remanding the opinion, award, and order of the Administrative Law Judge (ALJ). Because we hold that the ALJ acted within his discretion, we reverse the Board’s decision.


Selected “not to be published” Opinions

1005.  Arbitration. COA directed circuit court to compel arbitration of employees’ claims

Tiffany Cox vs. Roger Ford
Court of Appeals Published Opinion Reversing – Pike Circuit Court

D. LAMBERT, JUDGE: This consolidated appeal challenges two separate orders of the Pike Circuit Court, one from April 29, 2014, and the other from August 14, 2014. The orders denied arbitration of two employees’ claims against their former employer for violations of Kentucky Revised Statutes (KRS) Chapter 344. After review, we reverse and direct the circuit court to compel arbitration.

 


 

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.

The complete set of this week’s minutes listing all decisions (published and not to be published) with links to the full text of each at the AOC,  are below:

Download (MNT12232015.pdf, PDF, Unknown)

COA: December 18, 2015 Court of Appeals Decisions (Minutes) (981-998). 18 decisions; 3 published decisions

PUBLISHED DECISIONS - Three. Division of retirement accounts in divorce; Persistent felony enhancement on sentencing; Guilty plea not withdrawn on claim of not advised of immigration effect. NOT TO BE PUBLISHED: Judgement execution affirmed.

Wolfe County Judicial Center.IMG_5900

Wolfe County Judicial Center at Campton, Kentucky. Completed in 2012. County named after the first graduate of the University of Virginia and later Kentucky State Senator. This is the fourth courthouse. The first was a log structure that burned down in 1884. The second courthouse was a two story brick structure completed in 1885, and it burned down in 1913. The third courthouse was a yellow brick, two story building completed in 1917. The above picture is the fourth and was completed in 2012. Not sure if the third courthouse remains standing. If you know, then leave a comment. Thanks. For some older photos of court day in 1940 by Marion Post Wolcot, then paste the following link in your browser — http://tomclarkblog.blogspot.com/2011/04/marion-post-wolcott-court-day-campton.html

Published Court of Appeals appellate cases for  this week –
December 18, 2015:  
 Links are to full text of PDF decision with AOC.

981.  Divorce. Retirement Accounts Division as Marital Property.  Insufficient Findings
Robert Todd Shown vs. Teresa Gail Shown
Court of Appeals Published Opinion Vacating and Remanding – Ohio County

D. LAMBERT, JUDGE: Appellant, Robert Shown (hereinafter Robert) appeals the Ohio Circuit Court’s order regarding the division of the parties’ retirement accounts. In this case, we hold that the Ohio Circuit Court failed to take additional proof which was necessary to enter sufficient findings of fact to divide the marital portions of the parties’ respective teachers’ retirement and Simplified Employee Pension—Individual Retirement Account (SEP-IRA). We therefore vacate and remand.

985.  Criminal Law. Sentencing Persistent Felony First Degree.  Enhancement.
Timothy F. Gray vs. Commonwealth of Kentucky 
Court of Appeals Published Opinion Affirming – Bell County

COMBS, JUDGE: Timothy F. Gray appeals from a final judgment and sentence of the Bell Circuit Court convicting him of theft by unlawful taking. He received a sentence of five-years’ imprisonment, which was enhanced to fifteen years by virtue of his status as a persistent felony offender in the first degree (PFO I). After our review, we affirm.

993.  Criminal Law.  Guilty Plea.  Affirmed deny defendant’s motion to withdraw 2009 guilty plea claiming not informed adverse impact on her immigration status
Yustin Diaz vs. Commonwealth of Kentucky 
Court of Appeals Published Opinion Affirming – Fayette County.

MAZE, JUDGE: Yustin Diaz appeals from a Fayette Circuit Court order denying her motion brought pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 and Kentucky Rules of Civil Procedure (CR) 60.02. She seeks to withdraw her guilty plea, entered in 2009, on the grounds that she was not informed that the resulting conviction could have an adverse effect on her immigration status.


Selected “not to be published” Opinions

997.  Enforcement of Judgement Lien.
Joe Frazee vs. Rabo Agrifinance, Inc.
COA Not to Be Published Opinion Affirming – McCracken County

COMBS, JUDGE: Joe and Cynde Frazee appeal from a judgment and order of sale entered on January 12, 2015, by the McCracken Circuit Court. The Frazees argue that the court erred by permitting Rabo Agrifinance, Inc., to enforce its judgment lien against their property. Following our review of the record and the arguments of counsel, we affirm.


 

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.

The complete set of this week’s minutes listing all decisions (published and not to be published) with links to the full text of each at the AOC,  are below:

Download (MNT12182015.pdf, PDF, Unknown)