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