COA: Mar. 27, 2015 Court of Appeals Decisions (Minutes) (243-264). Three published – Real property, found no fraud on constructive trust; false statement for unemployment benefits loses benefits even if immaterial false statement; and child Support and Medical Expenses Continue When emanciapated minor remains in high school

Top Left photo provided courtesy of Keith Vincent.  Remaining photos taken by Michael Stevens.

Top Left photo provided courtesy of Keith Vincent. Remaining photos taken by Michael Stevens.

The Kentucky Court of Appeals announced 22 decisions  on March 27, 2015, with three (3) of their opinions designated to be published.

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

Click here for all of 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).

For the complete set of this week’s minutes listed all decisions (published and not to be published) with links to the full text of each at the AOC, the continue reading below the digested summaries of this week’s published cases.

Published appellate cases for week of Mar. 27, 2015:

248. Real Property, Construct trust and Equitable Relief Discussed but no fraud found
Mont Jack Hammonds v. Clyde Jason Hammond
COA Published, Reversing and Remanding from Martin Cir Ct.

LAMBERT, J., JUDGE: Mont “Jack” Hammond appeals from the Martin Circuit Court’s judgment in favor of the Appellees, Clyde Hammond, Ashley Hammond, Clyde Hammond, Jr., and Tammy Hammond. The court’s judgment declined to impose a constructive trust or other equitable relief in favor of Jack regarding a tract of land. After careful review, we reverse the trial court’s judgment.

256.   Loss of Benefits for Lying on Application for Unemployment Benefits Even if False Statement was Immaterial
Taffy Downey vs. Kentucky Unemployment Commission
COA Published, Affirming decision from Warren Cir. Ct.

VANMETER, JUDGE: By statute, an employee who makes false statements in an application for unemployment benefits is disqualified from eligibility to receive those benefits. The issue presented in this case is whether an employee who made false statements to establish her right to benefits is disqualified even if the false statements were ultimately immaterial to the determination of entitlement to benefits. We hold that because the statute is clear and unambiguous and the decision of the Kentucky Unemployment Insurance Commission is supported by substantial evidence, the Warren Circuit Court did not err in affirming the employee’s benefit denial.

 264.  Family Law, Child Support and Medical Expenses Continue When Minor reaches majority because he remained in high school
Tami Leigh Mix vs. Brett Petty
COA Published Affirming in Part, Reversing in Part and Remanding back to Jefferson Cir. Ct.

LAMBERT, J., JUDGE: Tami Leigh Mix has appealed from the orders of the Jefferson Family Court terminating Brett Petty’s obligation to pay child support and medical expenses for their son as of May 30, 2014. She contends that these obligations should have continued for an additional six months pursuant to Kentucky Revised Statutes (KRS) 403.213(3) because their son remained a high school student after he reached the age of emancipation. Because we agree with Tami that the family court erred as a matter of law in assigning May 30, 2014, as the end of the school year, we affirm in part and reverse in part.

No tort, insurance or civil decisions.

Download (MNT03272015.pdf, PDF, Unknown)

Insurance: DOI Slams a Liability Insurer’s “Attempt At Forced Settlement Of Basic Reparation Benefits” – Department of Insurance Advisory Opinion 15-02, approved 3/20/2015

folder marked with regulations

The Department of Insurance has issued an advisory opinion (Attempt At Forced Settlement Of Basic Reparation Benefits 15-02) highlighting an insurance company practice of offering a bodily injury BI settlement to a claimant only if the claimant will give up his rights to any further BRB benefits undermines the purpose of the MVRA, and is against public policy.

If you encounter the following described abuse by an insurance company, the adjuster and the carrier should be reported to the Department of Insurance.  Click HERE for information on filing a complaint.  When a insurance company engages in this practice, they deny policy holders of protections they have paid for, adversely affect the insured getting their health insurance benefits, and deny/delay/interfere with subrogation by other insurers as provided by law.

As stated further in the advisory opinion:

the vast majority of bodily injury (“BI”) settlements involve third parties. By requiring that the injured person give up any claim to BRB, the insurer insists that the injured person forego the rights to a benefit the injured person paid for and is provided by the injured person’s own insurer.

* * *

Liability coverage is all that should be at issue in a settlement of a BI case. The Department discourages efforts to abrogate an individual’s ability to get medical treatment by employing such a practice. This is particularly troubling in light of the fact that health insurance will not pay for treatment where other insurance is, or should be, available.

* * *

At the very least this behavior is against public policy and could trigger a review of the insurer’s actions by the Department of Insurance in order to evaluate any potential violations of the Kentucky.

Download (AdvOp15_02AttemptForcedSettBasRepBen032315.pdf, PDF, Unknown)

SC Order 2014-12: Code of Conduct for Circuit Court Clerks, dated June 13, 2014

Public's View of Clerks - Their window to the judicial process.  Photo by Michael Stevens using an iPhone 5.

Public’s View of Clerks – Their window to the judicial process. Photo by Michael Stevens using an iPhone 5.

Supreme Court Order 2014-12 deals with standards of conduct we expect of our circuit court clerks.

[I]t is essential that circuit court clerks uphold high standards of integrity, impartiality, and independence in their personal and professional affairs in order to promote public confidence in the judicial system. Circuit court clerks shall diligently perform their duties and avoid situations that might lead to conflict, the appearance of conflict, or the appearance of impropriety between self-interest and their duty to the courts and the general public.

SC Order 2014-12, Section 1

It is not just compliance with the rules but avoiding conflicts, the appearance of conflicts, and the appearance of impropriety between self-interest and their duties.  A standard that is high but nothing less than what we need and require considering the constitutional and statutory responsibilities thrust upon the clerks who keep the process moving, the courts open, the jurors showing up, and the records safeguarded.

For the AOC’s archived Rules and Orders, click here.

Download (201412.pdf, PDF, 42KB)

COA: Mar. 20, 2015 Court of Appeals Decisions (Minutes) (220-241). Three published – taxation for county libraries, will devise, workers compensation settlement include wife’s claim for husband’s death?

Court Houses of Allen County, Scottsville, Kentucky. Top Left built 1903 Top Right built 1967 Bottom built 2012 Court House Photos published with permission of Keith Vincent with www.Courthousehistory.com

Court Houses of Allen County, Scottsville, Kentucky.
Top Left built 1903
Top Right built 1967
Bottom built 2012
Court House Photos published with permission of Keith Vincent with www.Courthousehistory.com

The  Kentucky Court of Appeals announced 22 decisions  on March 20, 2015, with three (3) of their opinions designated to be published.

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

Click here for all of 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).

For the complete set of this week’s minutes listed all decisions (published and not to be published) with links to the full text of each at the AOC, the continue reading below the digested summaries of this week’s published cases.

Published appellate cases for week of Mar. 20, 2015:

226.  Campbell County Public Library vs Coleman
Local Taxation
TAYLOR, JUDGE: At issue in this consolidated appeal from the Campbell and Kenton Circuit Courts is whether public libraries in Kentucky, created by petition pursuant to Kentucky Revised Statutes (KRS) 173.710 et seq., may assess the library’s ad valorem tax rate in accordance with KRS 132.023 (commonly referred to as House Bill 44) or pursuant to the provisions of KRS 173.790.

230.  Kerrie Hosick Herron vs. Patricia Hosick
Wills and Estates,  Real Property Interest
JONES, JUDGE: This appeal concerns the interpretation of a will and the devise of real property. Appellant, Kerri Hosick Herron, appeals from the declaratory judgment of the Livingston Circuit Court determining that she has no remaining interest in the property. For the reasons set forth below, we AFFIRM IN PART, REVERSE IN PART, AND REMAND.

239.  Mamie Baytos vs. Family Dollar
Workers Compensation
COMBS, JUDGE: Mamie Baytos appeals the order of the Worker’s Compensation Board which reversed the order of the Administrative Law Judge. After our review, we vacate the order of the Board and remand.

Mamie’s husband, Stephen Baytos, was employed by Family Dollar Stores. He sustained a serious work-related injury (a torn thoracic aorta) on February 9, 2006. As a result of the injury, Stephen died on December 3, 2009. Pertinent to this case, before Stephen passed away, he entered into a settlement with Family Dollar. He accepted a lump-sum payment and agreed not to pursue any future claims. The settlement was not signed by Mamie, and it did not include references to any future rights that she might have.

The substantive issue which Mamie presents is whether the Board erred by determining that Stephen’s agreement with Family Dollar prohibits her from seeking death benefits. Kentucky Revised Statute[s] (KRS) 342.750 allows surviving spouses to receive death benefits if the injured employee dies within four years of sustaining the injury. It makes no mention of prior agreements reached between the employer and the injured employee. ***
The predecessor to our Supreme Court provided guidance for this scenario in Brashear v. Old Straight Creek Coal Corp., 236 Ky. 83, 32 S.W.2d 717 (Ky. 1930). The employer coal company compensated Brashear for an injury covering a period of time until he signed a receipt indicating that he had received the final payment. Id. The Court held that Brashear’s “final settlement [did] not prevent an award to the widow . . . .” 236 Ky. at 85, 32 S.W.2d. at 718.

Tort and insurance decisions:

228,  Ashcraft vs. Patrick B. Kennedy DMD COA, NPO 3/20/2015 (dental negligence).   NICKELL, JUDGE: Julia Ann Ashcraft, pro se, has appealed from the Jefferson Circuit Court’s entry of summary judgment in favor of Patrick B. Kennedy, D.M.D., on her claims of dental malpractice. We affirm.

237.  Larry Ashlock vs. Jesse James Riding Stables, Inc. COA NPO 3/20/2015 (workers compensation attorney fees).  MAZE, JUDGE: Larry D. Ashlock (Ashlock) petitions for review of an Opinion by the Workers’ Compensation Board (Board) that affirmed an order by the Administrative Law Judge (ALJ) awarding attorney fees in a claim brought by Phillip Moore and apportioning those fees between Ashlock, Moore’s former counsel, and Ched Jennings, Moore’s current counsel. We agree with the Board that the ALJ is not required to make specific findings concerning the value of services provided by a discharged attorney, but may apportion the total award upon finding that the prior attorney was not discharged for cause. We further conclude that the ALJ’s findings were sufficient to support the total award and that the apportionment of attorney fees was within the ALJ’s discretion. Hence we affirm.

SC: Mar. 25, 26 & 27, 2015 Oral Arguments before Ky Supreme Court

Another Downtown Louisville at Night Photo I took showing the Justice Center, the Judicial Center, and Old City Hall. Michael Stevens.

Another Downtown Louisville at Night Photo I took showing the Justice Center, the Judicial Center, and Old City Hall.  Photo by Michael Stevens.

Supreme Court of Kentucky (SCOKY) will hear oral arguments on Mar. 25, 26 & 27, 2015 at the State Capitol in Frankfort.

For Kentucky Supreme Court LIVE argumentsclick here on date and time of argument.

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 Reports postings on Supreme Court argument calendars.

Download (SCOMAR15.pdf, PDF, Unknown)

COA: Mar. 13, 2015 Court of Appeals Decisions (Minutes) (182-219). Five published. No tort, insurance or civil procedure decisions.

Louisville City Hall (Old) on 601 W. Jefferson Street.  Photo  taken by Michael Stevens using Canon 60D.

Louisville City Hall (Old) on 601 W. Jefferson Street. Photo taken by Michael Stevens using Canon 60D. I thought the cloud pattern, coupled with the lights produced an interesting contrast. The hard part was to get the right settings to allow the night lighting to show off the structure with a sufficient exposure for the clouds, taken on the evening of Thursday, March 19, 2015.

No decisions were announced last wee for March 6, 2015.  However, the  Kentucky Court of Appeals made up for it this week when they announced announced 38 decisions  on March 13, 2015, with five (5) of their opinions designated to be published.

For those who wonder what  is the difference between a decision designated “to be published” and those that are designated “not to be published”, I refer you to Kentucky Rules of Civil Procedure, CR 76.28(4)(c), which says:

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  (emphasis added).

Here are quick links to the five published decisions from this week with a short squib on decision:

  • 182. Samuels v. Commonwealth of Kentucky 
    Criminal Law
    JONES, JUDGE: This case arises out a decision from the McCracken Circuit Court finding that the Appellant, Darryl M. Samuels, did not raise an actual conflict of interest at trial. We AFFIRM, but for a different reason than articulated by the trial court.
  • 185.  William Northington vs. Commonwealth of Kentucky
    Criminal Law
    JONES, JUDGE: This matter is before us following Appellant William Northington’s conditional guilty plea entered in Jefferson Circuit Court. As part of his plea, Northington reserved the right to appeal the circuit court’s denials of his pretrial suppression motions. For the reasons more fully explained below, we AFFIRM IN PART, VACATE IN PART and REMAND for an evidentiary hearing complete with findings of fact with regard to victim Joshua Melton’s identifications of Northington.
  • 200.  Brian McClure vs. Commonwealth of Kentucky 
    Criminal Law
    MAZE, JUDGE: Appellant, Brian McClure, appeals from an order of the Powell Circuit Court revoking his probation. Having reviewed the record and the relevant law in this case, we conclude that the trial court’s order revoking McClure’s probation lacked an essential finding. Therefore, we must remand.
  • 211. Wendy Hanawalt vs. Thomas J. Brown
    Workers Compensation
    MAZE, JUDGE: Wendy Hanawalt (Hanawalt) petitions for review of an opinion by the Workers’ Compensation Board (Board) which affirmed an order by the Administrative Law Judge (ALJ) dismissing her workers’ compensation claim against J. Thomas Brown and Karen Brown, d/b/a/ Wild Rose Equestrian Center (Wild Rose). Hanawalt argues that the ALJ and the Board erred in finding that Wild Rose is subject to the “agricultural exemption” from coverage under the Workers’ Compensation Act. We find that the ALJ and the Board correctly applied the exemption to Wild Rose’s operations. Consequently, the ALJ properly dismissed the claim. Hence, we affirm.
  • 219.  Tammy Holt vs. James R. Holt
    Family Law – DVO
    JONES, JUDGE: This appeal arises from an order of the Bullitt Circuit Court, Family Division, granting Appellee James R. Holt (“James”) a domestic violence order (“DVO”) against Appellant Tammy Holt (“Tammy”). Tammy argues that the Bullitt Family Court lacked jurisdiction to enter the DVO because James was a resident of Nelson County. In the alternative, Tammy argues that there was insufficient evidence to support entry of the DVO against her and that the Bullitt Family Court did not conduct a “meaningful hearing” before entering the DVO. For the reasons more fully explained below, we AFFIRM.

Click here for links to all the archived AOC Court of Appeals minutes

Click here for all of a listing of our 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).

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

“Mel Ignatow: Getting Away With Murder” from American Justice

Screen Shot 2015-03-10 at 8.44.52 PM

The video “Mel Ignatow: Getting Away With Murder” can watched by going to the You Tube channel at – https://www.youtube.com/watch?v=RzXyj4lqvPU.

Twenty five plus years after Brenda Sue Schaefer’s death at the hands of Mel Ignagtow, the public scrutiny and painful memories linger, along with the incredulity of how this miscarriage of justice occurred in the first place.

This is not just me talking, but is apparent as dozens of citizens have attended the Jefferson County Public Law Library’s Public Forum series featuring attorneys and items/issues of public interest.

However, I have already discussed the law library series arising from the murder of Brenda Sue Schaefer in 1988, followed by the jury’s acquittal of her murderer Mel Ignatow, and then followed by Ignatow’s conviction for perjury.  Ignatow died after his release from prison when he fell on a coffee table at his home and bled to death, alone.

Law Library Series – On Mel Ignatow, the Man Who Got Away With Murder, but not perjury or infamy will continue on March 12, 2015 in Louisville

2015.03.Ignatow.Panel.Discusion

Round Three of the panel discussion on the Mel Ignatow interview, conducted by attorney T. Clay, will be presented this Thursday, March 12th. 2015 at the Jefferson County Public Law Library. Reception starts at 4:30 followed by panel discussion and interview at 5:00 pm.  Please RSVP by responding to this email or calling 502-574-5943. 

Double Jeopard by Bob Hill

Double Jeopard by Bob Hill

The Jefferson County Public Law Library has been offering a monthly forum addressing attorney authors, discussions, and timely topics for the legal community and the public.  It has been well-received and is incredibly flexible.  This part of the series began with Bob Hill discussing his book “Double Jeopardy” [click on this link for a description of the book and a chance to buy it directly from the publisher] on the Mel Ignatow murder trial.  We had the opportunity to catch some of his insights into his interview and writing of this book.  

During this discussion, Thomas Clay, Louisville attorney, who was appointed by the federal judge to handle Mel Ignatow’s perjury charges contributed to the discussion immeasurably with comments from his jailhouse interview with Ignatow.

Attorney Thomas C. "T" Clay

Attorney Thomas C. “T” Clay

There was such interest that another forum was scheduled on February 5, 2015 when Attorney T. Clay shared with nearly forty of the library’s patrons more details of that jailhouse interview that he had conducted with Mel Ignatow after evidence was found of his guilt, in the murder of Brenda Sue Schaefer. Mr. Clay was joined by Justice Johnstone and members of his staff as well as Prosecutor James Lesousky.

We were also privileged and honored to hear from those who were also close to this trial – those on the staff of then Judge Martin Johnson (the trial judge).

There was so much to share that another forum was set for February 18, at which time excerpts of the recorded interview put chills in my spine to hear this psychotic and evil man discuss what he had done.

Retired Justice Martin Johnstone

Retired Justice Martin Johnstone

And now, we have what might well be the concluding discussion this Thursday, March 12th where Justice Johnstone, Jim Lesousky, and T. Clay are scheduled to return to again take a look back at what can only be described as a brush with evil and the lingering reflections from a heinous crime nearly a quarter century ago which still is fresh in the hearts and minds of many in Louisville.

However, let us not forget the victim, Brenda Sue Schaefer, and her family who has endured pain and a loss that should be endured by no one.  When Ignatow’s name comes up, think about shooting up an “arrow” prayer for them and all the others who have prosecuted justice for our benefit and which most probably has exacted a price that time will never heal and none of us ever come near to comprehending.

In 2012, the FBI files were released in response to a Freedom of Information Act (FOIA) request by  WLKY (click here for the story, access to the files and the two news stories by WLKY’s investigative reporter Steve Burgin).

COA: Feb. 2015 Oral Argument Calendar for Court of Appeals (Mar. 25 @ Univ of Louisville; Mar. 25 @ Somerset; and Mar. 30 in Leitchfield)

Allen County Court House, Scottsville, Kentucky.  Built 1903.  Contr. R. P. Manley.  Image provided courtesy of Keith Vincent, www.CourtHouseMemory.com (no alterations to the imaged card other than cropping).

Allen County Court House, Scottsville, Kentucky. Built 1903. Contr. R. P. Manley. Image provided courtesy of Keith Vincent, www.CourtHouseMemory.com (no alterations to the imaged card other than cropping).

Court of Appeals of Kentucky will hear oral arguments for the month of March 2015 on Mar. 25 at Brandeis School, University of Louisville; Mar. 25 at Somerset (yes two places but different panels) and March 30 at Leitchfield.

Some issues to be addressed include

  • dispute as to whether a contract was ever created to settle a lawsuit following a death resulting from a motor vehicle accident on Mar. 25;
  • appeal from grant of summary enuine issues of material fact existed concerning Appellant’s contractual obligation to the state to pay for preventative health services, including those rendered by RNs in schools  &  whether the Department of Medicaid Services and the trial court properly interpreted and relied upon certain regulatory and statutory authority for Mar. 25;
  • on discretionary review; issue challenged: was there prejudice in combining a preliminary hearing with a revocation hearing when two different standards of proof are involved for Mar. 25;
  • whether Circuit Court erred in granting summary judgment on Appellant’s claims for Wrongful Termination and Defamation by Seven Counties Services for Mar. 25;
  • foreclosure action where an amended complaint was filed and default judgment was entered on original complaint prior to the expiration of twenty days response time to amended complaint for Mar 25 (Somerset);
  • appeal from order denying arbitration in wrongful death suit against nursing home and its administrator for Mar. 30;
  • whether the trial court erred in holding that the only recovery Appellant was entitled to is the cost of a surveyor from judgment in real estate transaction on Mar 30; and
  • whether circuit court erred by denying appellant’s motion for a new trial on Mar. 30.

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

Complete list of archived argument calendars at the Administrative Office of the Courts, then click here.

For this month’s COA argument calendar:

Download (March2015.pdf, PDF, Unknown)

Kentucky Court Houses: The Court Houses of Adair County

Here is a collage of the court houses of Adair County, Columbia, Kentucky

Adair

Columbia, Kentucky

Columbia, Kentucky

Adair County is a rural community of 17,244 residents, located in south central Kentucky, just two hours from Louisville, home of the Kentucky Derby, and two hours from Frankfort, the State Capital.

Located in a rural setting  directly on the Louie B. Nunn Parkway.  This gives us access to all the major interstates.

Adair County’s town square is a cornerstone of the community with an abundance of history, featuring a central courthouse and 19th Century buildings and churches.

Anytime is a good time to visit Adair County, but the summer months are an especially good time to visit because we have Green River Lake located right here in Adair County and are only minutes from Lake Cumberland State Park.  Both offer outstanding fishing, camping, and water sports opportunities.

Adair County is the home of Lindsey Wilson College.  Lindsey Wilson College is a four-year liberal arts college affiliated with the Kentucky Conference of the United Methodist Church.  Since 1988 the college academic offerings have increased from three majors to its current level of twenty majors.  From kentucky.gov.

I HAVE ALLOWED COMMENTS ON THIS POST.

IF YOU HAVE STORIES, NEWS ITEMS, ITEMS OF INTEREST, OLD PHOTOS ABOUT LAWYERS, CASES, COURT HOUSES, ETC., THEN PLEASE, PLEASE, PLEASE POST A COMMENT OR EMAIL ME WITH THE ITEM.

THIS IS YOUR CHANCE TO SHARE THE LORE AND THE TRADITIONS OF YOUR COUNTY, COURTS, LAWYERS, AND CASES. 

THANK YOU.  MIKE