COA: April 29, 2016 Court of Appeals Decisions (Minutes)(360-378). 19 decisions; 8 published decisions

PUBLISHED CASES: vacated untimely grant of shock probation; affirmed attorney fees and court costs in foreclosure; addressed possessory lien for inspection and storage of airplane; Workers Comp IME and failure to comply resulting in no benefits pending compliance; saliva on styrofoam cup not improperly siezed; wanton endangerment jury instructions affirmed; failure of court to demonstrate parents unfit or waived superior custodial status SELECTED NONPUBLISHED DECISIONS: Long term extended care claims and statute of limitations

Second Larue County Courthouse, Located in Hodgenville, Kentucky.  Built in 1866 on same foundation of first courthouse which had been built in 1844, used as a barracks by Union troops during the Civil War but burned down by Confederate guerrillas on February 21, 1865 (all records saved).  A two-story brick building of Italianate styling.  This second courthouse was renovated in 1892.

Second Larue County Courthouse, Located in Hodgenville, Kentucky. Built in 1866 on same foundation of first courthouse which had been built in 1844, used as a barracks by Union troops during the Civil War but burned down by Confederate guerrillas on February 21, 1865 (all records saved). A two-story brick building of Italianate styling. This second courthouse was renovated in 1892.

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.

April 29, 2016 Published Court of Appeals Decisions  
Links are to full text of PDF published cases for this week.

360.  Criminal Law.  Shock probation granted too late
Commonwealth of Kentucky vs. Michael Todd Settles
Court of Appeals Published Opinion Vacating Jefferson Cir Ct. trial order granting shock probation more than 70 days after its filing per KRS 439.265(2)

364. Property.  Foreclosure.
White/Reach Brannon Rd., LLC vs. Rite Aid of Kentucky, Inc.
Court of Appeals Published Opinion AFFIRMING Jessamine Cir Ct. partial summary judgment  in favor of Rite Aid in foreclosure action and award of attorneys fees, expenses and court costs.

365.  Possessory Lien relating to inspection and storages of airplane
Airrich, LLC vs. Fortener Aviation, Inc.
Court of Appeals Published Opinion AFFIRMING Ohio Cir. Ct. Judgement in bench trial

366.  Workers Compensation.
Teresa Finke vs. Comair, Inc.
Court of Appeals Published Opinion AFFIRMING Workers Comp Board order that Finke did not have an unfettered right to  have her father present during IME and the ALJ did not abuse discretion in determining Finke failed to present a “compelling reason” why Finke could not submit to an examination without her father present and upheld decision that Finke was not entitled to receive any benefits during period of her noncompliance.

370.  Criminal Law. Search and Seizure.
Michael Marino vs. Commonwealth of Kentucky 
Court of Appeals Published Opinion AFFIRMING Nelson Cir. Ct.  ruling that he saliva in the Styrofoam cup was constitutionally obtained and the subsequent evidence obtained from Marino’s blood sample and the testing of it for DNA was not “fruit of the poisonous tree.”

371. Criminal Law.  Sentencing.
Kendrick Hunt vs. Commonwealth of Kentucky 
Court of Appeals Published Opinion  AFFIRMING in part (courts and and jail fees) and REVERSING  in part (restitution to Pennyrile Narcotics Task Force) Hickman Cir. Ct. sentence imposing fines.

375.  Criminal Law.  Jury instructions.
Ronnie Yaden vs. Commonwealth of Kentucky 
Court of Appeals Published Opinion AFFIRMING Kenton Cir. Ct. judgment finding no error or abuse of discretion in jury instructions on wanton endangerment or the calling of a fact witness rather than an expert witness.

378.  Family Law, Grandparent visitation, de facto custodian.
Amanda Chadwick vs. Emily Flora
Court of Appeals Published Opinion AFFIRMING finding that Grandmother is not de facto custodian or by finding Father should not be held in contempt for violating the visitation agreement’s terms and REVERSING in part and REMANDING Bourbon Cir Ct. termination of Grandmother’s petition for custody and visitation without determining whether Grandmother, as a non de facto custodian, can demonstrate Mother and Father are unfit custodians or whether Mother and Father waived their superior right to custodial status.


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

361.  Long Term Extended Care Claim.  Statute of Limitations.
Estate of Linda Fox vs. Extendicare, Inc.
COA Not to Be Published Opinion AFFIRMING in part, REVERSING in part, and REMANDING Estill Cir Ct. dismissal

Download (MNT04292016.pdf, PDF, Unknown)

COA: April 22, 2016 Court of Appeals Decisions (Minutes)(332-359). 28 decisions; 3 published decisions

PUBLISHED CASES: Age discrimination, attorney fees, and liquidated damages; Erroneous jury instruction in wanton or reckless toward innocent bystander; Rule 403 balancing test examined re explicit videos and child pornography case. SELECTED NON PUBLISHED CASES: Toxic torts, experts and causation; Tortious interference with employment relationship

Second and Current Kenton County Courthouse located in Independence, Kentucky. Built in 1911.

Second and Current Kenton County Courthouse located in Independence, Kentucky. Built in 1911.

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.

April 22, 2016 Published Court of Appeals Decisions  
Links are to full text of PDF published cases for this week.

334.  Employment Law.  Damages.  Age Discrimination.
Vernon Starr vs. Louisville Graphite, Inc.
Court of Appeals Published Opinion AFFIRMING IN PART AND REVERSING AND REMANDING Jefferson Cir. Ct. summary judgment in favor of Louisville Graphite, Inc. on his age discrimination claim under the Kentucky Civil Rights Act (KCRA), an order denying him liquidated damages under Kentucky’s Wages and Hours Act, and an award of attorney fees in an amount substantially less than requested. We affirm the summary judgment on the KCRA claim.  COA affirmed the denial of liquidated damages but reverse and remand for reconsideration of the attorney fees awarded.

338.  Criminal Law.  Jury instruction in error.
Billy Reed Caudill vs Commonwealth of Kentucky 
Court of Appeals Published Opinion VACATING AND REMANDING Franklin Cir. Ct jury instructions were erroneous.

KRS 503.120(2) provides that when acting wantonly or recklessly toward an innocent bystander, Caudill was not entitled to act in self-protection. The instructions as presented to the jury were erroneous under KRS 503.120(2). Because the jury was deliberating with improper jury instructions, we cannot say that the error was harmless.

350.  Criminal Law.  Evidence.  Rule 403 Balancing Test
Purdom vs. Commonwealth of Kentucky 
Court of Appeals Published Opinion REVERSING AND REMANDING for further proLawrence Cir Ct. Jury Verdict.  On appeal, Purdom claims the trial court should have excluded all sexually explicit videos, especially since he offered to stipulate they contained child pornography, and should have granted his directed verdict motion. Having reviewed the briefs, the record and the law, we reverse and remand for further proceedings due to the trial court’s failure to conduct the balancing test required by case law and KRE3 403.


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

348.  Toxic Tort.  Experts and Causation.
Jimmy Rogers vs. Columbia Gas Transmission Corp.
COA Not to Be Published Opinion AFFIRMING Clay Cir Ct. Summary judgment in favor of Columbia Gas determining the appellants Rogers could not prove the requisite causation element of their toxic tort action based on the expert testimony offered.

354.  Tortious Interference with Employment relationship.
Willie Love Talley vs. Ronald McCauley
COA Not to Be Published Opinion Affirming Anderson Cir Ct. dismissal of his action for tortious interference with employment relationship for failure to establish the essential elements of his claim.

Download (MNT04222016.pdf, PDF, Unknown)

COA: April 15, 2016 Court of Appeals Decisions (Minutes)(297-331). 35 decisions; 10 published decisions

PUBLISHED CASES - Ten!! Post judgment intervention in land dispute; inspection of adoption records; Fireman's Rule in Premises liability; claim against estate for value of services provided by live-in companion; order prohibiting parent from harassing emails to third parties in divorce; appeal dismissed for not complying with CR 76.12. NON-PUBLISHED TORT CASES - Medical malpractice and failure to have expert on breach of standard of care of physician; civil contempt in family court case for not showing at deposition; negligent securing of keys by landlord and claim of burglaries

The Second Kenton County Courthouse, Covington Kentucky was built in 1899 and opened in 1902.

The Second Kenton County Courthouse, Covington Kentucky was built in 1899 and opened in 1902.

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.

April 15, 2016 Published Court of Appeals Decisions  
Links are to full text of PDF published cases for this week.

298.  Criminal Law. Palpable error.
Paul S. Jackson II vs. Commonwealth of Kentucky 
Court of Appeals Published Opinion  affirming Jefferson Cir. Ct. conviction of second-degree criminal mischief, intimidating a witness in the legal process, fourth-degree assault, and for being a second-degree persistent felony offender (PFO II) and enhanced sentencing.

300.Criminal Law. RCr 60.02 denial affirmed
Bogdan Djoric vs. Commonwealth of Kentucky 
Court of Appeals Published Opinion affirming Kenton Cir Ct denial of RCr 60.02 relief

301. Property.  Land dispute. Post-judgment intervention permitted.
Harry Polis vs. Unknown Heirs of Jessie C. Blair
Court of Appeals Published Opinion affirming Letcher Cir Ct judgment finding Polis holding no ownership interest in a disputed parcel of real estate and dismissing a civil action seeking a judicial sale of the disputed lands, as well as trial court’s decision to permit post-judgment intervention by a third-party who had not been named in the initiating complaint.

303. Revenue and Taxation.  Local.
Sewell-Scheurmann vs. Michael Scalise
Court of Appeals Published Opinion  reversing and remanding Jefferson Cir Ct dismissal of Appellant’s claim against Mayor for failure to state a claim involving suit of city improperly expended sanitation tax revenue

305.  Family Law.  Inspection of adoption records
John Earl Belden vs. Cabinet for Families and Children
Court of Appeals Published Opinion vacating and remanding Jefferson Cir Ct. order denying adopted person’s motion requesting inspection of his adoption records as family court judge failed to issue findings of fact in denying inspection with instructions to trial court to enter findings of fact and conclusion of law that would permit a meaningful appellate review.  Upon the filing of such motion, the Cabinet is required to undertake a search for the biological parents to ascertain whether they consent to the inspection. If the biological parents are deceased, the court may order the inspection.

307.  Premises Liability.  Fireman’s Rule.
Sharon W. Johnson vs. Norfolk Southern Railway Co.
Court of Appeals Published Opinion reversing and remanding Boyle Cir. Ct. directed verdict in favor of Norfolk on  grounds that the Fireman’s Rule barred appellant’s recovery as matter of law in premises liability claim.  Held Fireman’s Rule not apply since Norfolk not the owner, occupier of person otherwise protected when calling appropriate public protection agency.

308.  Wills and Estates.  Claims for Services.
Anna Ruth Gilbert vs. Jeffery Hoover, Executor of Estate of Marshal Reed Stephens
Court of Appeals Published Opinion affirming Russell Cir Ct order granting partial summary judgment for executor on appellant’s claim for reasonable value of her services  services rendered to decedent for five and half years to decedent. Appellant was live in companion and beneficiary of decedent’s will.

313.  Criminal Law.  Search and Seizure.  Traffic Stop.
Lamaar Deangelo Kennedy vs. Commonwealth of Kentucky 
Court of Appeals Published Opinion affirming Fayette Cir. Ct. guilty plea conditioned on his right to appeal  the denial of his suppression motion.

319.  Family Law.  Harassing Communication’s of parent to third parties prohibited.
John Michael Wedding vs. Heather Lynn Harmon
Court of Appeals Published Opinion Affirming Jefferson Family Ct. order granting mother’s motion to prohibit father from harassing her by by copying and forwarding routine co-parenting emails to individuals within the parties’ local community and from sending mass emails to the parties’ friends, family and other members of their community regarding the parties’ dissolution, custody proceedings and co-parenting. Father’s sole contention on appeal is that the order is an unconstitutional infringement on his speech.

322.  Appeals.
Laura Beth Brooks vs. Hugh Junior Byrd, II
Court of Appeals Published Opinion and Order dismissing  appeal from Madison Cir. Ct. for for non-compliance with CR 73.02(1)(e)(ii). Additionally, we note non- compliance with CR 76.12(4)(c)(vii).

Some might argue we could invoke CR 75.08 and order the Madison Circuit Court Clerk to supplement the record on a theory that material items were omitted from the appellate record due to “error or accident.” Then, because this is a custody case—for which exceptions are made in the law, Ecolab, 461 S.W.3d at 758—we could apply the relation forward doctrine id., at 759, and consider the notice of appeal to be a challenge to the final order entered on April 17, 2015.

However, the Court of Appeals is not in the habit of practicing cases for litigants. By stretching the well-established rules of procedure we might be able to save this appeal so it can be considered on the merits, but we are not inclined to do so. It would be unfair to Byrd to ignore the rules governing civil practice and procedure. CR 1(2). Further, we are mindful that whatever lengths to which we go in this case will be expected in all future cases and we are simply unwilling to throw out the rules—an act that would be necessary to allow this appeal to go forward on the merits.


To be published tort, insurance and civil procedure decisions:

297.  Malicious Prosecution.
Ronnie Mosby vs. James Barry Thompson
COA Not to Be Published Opinion affirming in part and reversing in party Monroe Cir. Ct..  Appellant/defendant claimed he was immune from malicious prosecution based on his testimonial privilege for the grand jury.

309.  Medical malpractice.  Expert witness.
Hitch vs. St. Elizabeth Medical Center, Inc.
COA Not to Be Published Opinion affirming Campbell Cir. Ct. summary judgment dismissing medical negligence claim for not producing expert on breach of standard of care

310.  Contempt.  Civil.
Carmen Rebecca Martin vs. Lucia Pop-Schenk Popa
COA Not to Be Published Opinion affirming Jefferson Family Ct. order holding her in contempt for failure to appear at deposition.

318.  Negligently securing keys and resultant burglaries.
Helen Ringus vs. Masonic Temple Co., Inc.
COA Not to Be Published Opinion affirming Woodford Cir Ct. order granting partial summary judgment in favor of Masonic dismissing her counterclaim  alleging that Masonic Temple was negligence in securing keys to building she rented resulting in series of burglaries.

Download (MNT04152016.pdf, PDF, Unknown)

 

SC: April 2016 Oral Arguments before Ky Supreme Court

Set for April 27, 2016 at State Capitol in Frankfort.

Issues:

  • “Administrative Law. Board of Claims. Issues include the scope of the Transportation Cabinet’s responsibility for maintaining a “gore area” known to contain potentially hazardous sign debris.”

  • “Writ of Prohibition. Disclosure of the identity of an anonymous internet.

  • “Elections. Issues involve deviations from the election statutes, especially with respect to applications for and counting of absentee ballots, and the impact upon the validity of the 2014 election for Magoffin County Judge Executive.”

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

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

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

Download (SCOAPR16.pdf, PDF, Unknown)

COA: April 8, 2016 Court of Appeals Decisions (Minutes)(282-296). 15 decisions; 4 published decisions

PUBLISHED CASES - family law on child support, custody, expert witness fees, attorney fees; employment discrimination & retaliatory discharge; child support arrearages. NOT TO BE PUBLISHED - medical malpractice verdict for Louisville urologists affirmed; workers comp injury involving courthouse clerk

Another post card showing the Calloway County Courthouse with some cars and trucks that would have been nice to see parked there today.

Another post card showing the Calloway County Courthouse with some cars and trucks that would have been nice to see parked there today.

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

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

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

Published Court of Appeals appellate cases for  this week –  April 8, 2016:
Links are to full text of PDF decision with AOC.

283.  Child support, child custody, attorney fees and expert expenses
Raymond Evans vs. April Evans Hess
Court of Appeals Published Opinion Affirming in part and reversing in part Boone Fam Ct. order

D. LAMBERT, JUDGE: This matter is before the Court on three separate appeals from rulings issued by the Boone Family Court. The Appellant in the first appeal (2013-CA-002072-ME), Raymond Evans (hereinafter “Raymond”), seeks this Court to review the lower court’s modification of an existing child custody order, an existing child support order, and to review the order directing him to pay a portion of the attorney fees and expert witness fees expended by the Appellee, (2014-CA-001512-ME) are M.K.G.E. and L.M.P.E., the minor children of Raymond and April, who seek this Court’s review of the Boone Family Court’s denial of a motion to strike testimony of their psychotherapist from the proceedings below. The Appellant in the third appeal (2015-CA-000043-ME) is Raymond, who seeks this Court’s review of the Boone Family Court’s denial of his motion for review of child support following another of the children attaining age eighteen, the Boone Family Court’s failure to award make-up parenting time after finding April in contempt, and the court’s failure to award immediate payment of attorney fees upon finding April in contempt. For the reasons described herein, we affirm in part, and reverse in part.

286.  Employment discrimination, retaliatory discharge
Prentice Walker vs. Commonwealth of Kentucky  Kentucky Education Television
Court of Appeals Published Opinion affirming Fayette Cir Ct. summary judgment on appellant’s employment discrimination and retaliation on the basis of race claims

Walker’s discrimination claims fail either due to the applicable statute of limitations or the fact that he failed to present sufficient evidence of pretext under McDonnell Douglas to warrant a fact-finder’s consideration of those claims. Similarly, we agree with the trial court that Walker’s retaliation claim lacks the affirmative and admissible evidence of record necessary to raise genuine issues of fact concerning a causal connection between his HRC complaint and KET’s subsequent failure to promote him.  In sum, though for reasons which differ slightly, we agree with the trial court that KET was entitled to judgment as a matter of law on the entirety of Walker’s suit. The November 27, 2012 and May 9, 2014 judgments of the Fayette Circuit Court are therefore affirmed.

295.  Child support arrearages
Brian Neighbors vs. Commonwealth of Kentucky
Court of Appeals Published Opinion reversing and remanding Butler Fam Ct determination of child support arrearages for further proceedings at which the Commonwealth must establish the amount of the arrearage with evidence.

296.  Workers Compensation
Administrative Office of the Courts vs. Kathy Blevins
Court of Appeals Published Opinion affirming Workers Comp Board award in favor of AOC former employee injured in parking lot of AOC


To be published tort, insurance and civil procedure decisions:

284.  Medical negligence
Jerry Walker vs. Metropolitan Urology PSC, Dr. Bell and Dr. Goodwin
COA Not to Be Published Opinion affirming Jefferson Cir Ct.  jury verdict in favor the of the appellees in a medical malpractice Action

Download (MNT04082016.pdf, PDF, Unknown)

COA: April 1, 2016 Court of Appeals Decisions (Minutes)(274-281). 8 decisions; 2 published decisions

PUBLISHED CASES - waiver of sovereign immunity per Kentucky Model Procurement Code; no family court subject matter jurisdiction on status/habitual offenses of juveniles. NO TORT CASES

Fourth and present Calloway County Courthouse in Murray, Kentucky built in 1913.  The Falls Construction Company of Louisville built the courthouse at a cost of $49,679 and was finished in just 200 days.  Listed on the National Register of Historic Places in 1986.  Anyone know what is missing from this post card?

Fourth Calloway County Courthouse in Murray, Kentucky built in 1913. The Falls Construction Company of Louisville built the courthouse at a cost of $49,679 and was finished in just 200 days. Listed on the National Register of Historic Places in 1986. I have seen photos of a Confederate Memorial with Robert E. Lee located on the northeast corner and can only assume this view did not depict the statute.  Anyone answer?

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

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

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

Published Court of Appeals appellate cases for  this week –  April 1, 2016:
Links are to full text of PDF decision with AOC.

276. Sovereign immunity waived on employment contract with university
University of Louisville vs. Mark Rothstein
Court of Appeals Published Opinion affirming Franklin Cir Ct affirming summary judgment that sovereign immunity not apply to professor contract

The sole issue to be decided in this appeal is whether U of L enjoys sovereign immunity shielding it from suits related to employment contracts or if the waiver of immunity contained in the Kentucky Model Procurement Code (KMPC)1 for actions brought on written contracts is applicable to employment contracts.  After careful consideration, we concluded “the Supreme Court applied the statute as a waiver of sovereign immunity in all contract actions against the Commonwealth and not only those subject to the Model Procurement Code.” Id. at 762 (emphasis added). Contrary to U of L’s vehement protestations and its lengthy semantic and public policy arguments, our holding in Samaritan Alliance would clearly extend to employment contracts. The Legislature’s enactment of KRS 45A.245 plainly constitutes an unqualified waiver of sovereign immunity on all written contracts with the Commonwealth—including employment contracts.

280.  Juveniles.  Status Offender.  Habitual truants. Jurisdiction.
C.(J.L.), Child Under Eighteen vs. Commonwealth of Kentucky 
Court of Appeals Published Opinion vacating Shelby Family Court disposition that all minors were found to be status offenders (habitual truants) because the family court did not have subject matter jurisdiction over the three juveniles’ cases.

Not to be published tort, insurance and civil procedure decisions:  NONE.


Download (MNT04012016.pdf, PDF, Unknown)

 

 

 

COA: April 2016 Oral Argument Calendar for Court of Appeals

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.

Some issues this month are:

  • Appeals from orders granting de facto custodian status & custody status to grandmother. Sufficiency of notice of de facto custodian hearing; sufficiency of evidence that grandmother was sole caretaker and supporter of child; sufficiency of findings supporting de facto custodian status; whether de facto custodian status must be re-evaluated based on change in circumstances; use of affidavits sworn out by counsel in support of motion to modify custody.

  • Appeal from verdict in a bench trial involving accounting fraud & malpractice and awarding $20M in compensatory damages & $80 M in punitive damages. The Yungs and their family trust hired Thornton to design a strategy to minimize tax liability on income from foreign corporations. The IRS disallowed the shelters and imposed additional taxes, interest & penalties on the income. The trial court found that Thornton was grossly negligent in providing the accounting services, and made false representations and material ommissions concerning the risks of the strategy employed. Whether the Yungs established justifiable reliance; whether Thornton’s conduct & omissions are actionable as fraud; whether trial court improperly disallowed limitation of liability clause in engagement letter; award of compensatory damages based upon tax liability & interest; whether the Yungs properly asserted a claim for unliquidated damages; sufficiency of evidence of fraud and gross negligence for punitive damages; whether punitive damages award was excessive; award of pre-judgment and post-judgment interest; limitation on discovery of advice that Yungs received from their tax attorneys.

  • Construction company appeals from decision in a breach of contract action involving subcontractor plumbing company. Appeal is from order granting the plumbing company’s motion to vacate an order dismissing its counterclaims and deeming requests for admissions admitted.

  • Direct appeal from several pretrial rulings related to granting partial summary judgment in favor of Appellee; granting Appellee’s motion in limine declaring a dispute resolution provision is enforceable; ruling on the reasonableness of liquidated damages; and a discovery ruling. Cross appeal addresses whether the trial court properly denied MSD’s motion for a JNOV and for a directed verdict.

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

Download (April2016.pdf, PDF, Unknown)

COA: March 25, 2016 Court of Appeals Decisions (Minutes)(251-273). 23 decisions; 3 published decisions

PUBLISHED DECISIONS: Reversed dismissal of med-mal claim when trial court applied judicial estoppel; affirmed trial court's ruling on suppression motion in DUI; pharmacies are medical providers and subject to fee schedules in Workers Comp. NON-PUBLISHED TORT DECISIONS: Duty to defend and indemnify not cover "occurrence" in CGL; governmental immunity re corrections; qualified immunity for government ambulance employees

Fourth and current Caldwell County Courthouse, Princeton, Kentucky. Completed in 1940 with a grant and under the direction of the Works Product Administration. Designed by Madisonville architect Lawrence Casner to be the most modern in Western Kentucky. Constructed of poured concrete. Princeton attorney R.W. Lisanby was a strong proponent of this project. Cost $178,997.

Fourth and current Caldwell County Courthouse, Princeton, Kentucky. Completed in 1940 with a grant and under the direction of the Works Product Administration. Designed by Madisonville architect Lawrence Casner to be the most modern in Western Kentucky. Constructed of poured concrete. Princeton attorney R.W. Lisanby was a strong proponent of this project. Cost $178,997.

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

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

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

Published Court of Appeals appellate cases for  this week –  March 25, 2016:
Links are to full text of PDF decision with AOC.

256.  Judicial Estoppel. Failure to disclose existence of pending malpractice action  in Chapter 7 Bankruptcy
Jane M. Mefford vs. Norton Hospitals d/b/a Norton Audobon Hospital
Court of Appeals Published Opinion reversing and remanding Jefferson Cir. Ct. summary judgment dismissing her medical malpractice claim against Norton Audubon Hospital based on the doctrine of judicial estoppel.

Thompson. J.  The trial court concluded Jane intentionally failed to disclose the existence of her pending malpractice action to the bankruptcy court prior to it granting a Chapter 7 discharge of her debts and was estopped from pursuing her malpractice claim. Jane contends she had no motive to conceal her malpractice claim to the bankruptcy court because if disclosed, the malpractice claim would not have been an asset of her converted Chapter 7 bankruptcy estate. Additionally, Jane argues application of judicial estoppel is not warranted because, in good faith, she relied on her bankruptcy attorney’s advice regarding the applicable law. We agree with Jane that she had no motive to conceal her medical malpractice claim and acted in good faith reliance on her counsel when she did not reveal the claim. We hold the trial court erred in applying judicial estoppel.

270.  Criminal Procedure
Christopher T. Hardin vs. Commonwealth of Kentucky 
Court of Appeals Published Opinion affirming Muhlenberg Cir.Ct. which had denied defendant’s motion to suppress evidence in DUI trial.

271.  Workers Compensation.
Steel Creations vs. Injured Workers Pharmacy
Court of Appeals Published Opinion affirming Workers Comp Board applying regulatory fee schedules to pharmacy as a medical provider.


Not to be published tort, insurance and civil procedure decisions:

251.  Duty to defend and indemnify in CGL policy did not apply to non-covered property damages
Acuity,  A Mutual Ins. Co. vs. Martin/Elias Properties LLC
COA Not to Be Published Opinion reversing and remanding partial summary judgment in favor of Martin that it’s insurance company had a duty to defend on indemnify for property damage caused by its insureds (Martin/Elias) on grounds that the claims were not occurrences under the commercial general liability policy and thus no duty to defend or indemnify since no coverage for the alledged damages were triggered.

The policy defined “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” Acuity contended its CGL policy did not provide coverage for the claims asserted against Gosney because the claims against him for negligence, breach of contract and breach of warranty all flowed from a theory of faulty workmanship and therefore could not constitute an “accident” or “occurrence” under provisions of the policy.

256.  Metro Government.  Immunity.
Louisville Metro Dept. of Corrections vs. Ferron W. Tomlinson
COA Not to Be Published Opinion affirming in part, reversing in part and remanding order of Jefferson Cir. Ct. denying Metro’s motions to dismiss on governmental immunity.

257.  Qualified official immunity
Amanda Barnett vs. Debra Conatser
COA Not to Be Published Opinion reversing and remanding McCreary Cir. Ct. order denying ambulance service employees’ motion for summary judgment to dismiss claims based upon qualified official immunirty.


Download (MNT03252016.pdf, PDF, Unknown)

COA: March 18, 2016 Court of Appeals Decisions (Minutes)(225-250). 26 decisions; 1 published decision

PUBLISHED - Immunity under Health Care Quality Improvement Act. NOT PUBLISHED TORT DECISIONS - Substantial compliance doctrine in appeals; bad faith trial with some interesting rulings for noting

The second and current Boyle County Courthouse. Located in Danville and completed in 1862 at a cost of $15,000. It was built at the of the first courthouse .which was destroyed by fire in 1860.. Italianate style with two-story clock tower. The structure held only one session of court before the U.S. Army took it over as a hospital following the Battle of Perryville in October 1862. Damage caused by the soldiers required renovations and repairs 1873-1875. The design, construction, and repairs were by local architect James Carrigan. It was listed in the National Registry or Historical Places in 1973.

The second and current Boyle County Courthouse. Located in Danville and completed in 1862 at a cost of $15,000. It was built at the of the first courthouse .which was destroyed by fire in 1860.. Italianate style with two-story clock tower. The structure held only one session of court before the U.S. Army took it over as a hospital following the Battle of Perryville in October 1862. Damage caused by the soldiers required renovations and repairs 1873-1875. The design, construction, and repairs were by local architect James Carrigan. It was listed in the National Registry or Historical Places in 1973.

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

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

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

Published Court of Appeals appellate cases for  this week –  March 18, 2016:
Links are to full text of PDF decision with AOC.

224.  immunity under the Health Care Quality Improvement Act, 42 United States Code (U.S.C.) §§ 11101et seq.
Benjamin Reid, Jr. M.D. vs. KentuckyOne Health, Inc
Court of Appeals Published Opinion  Reversing and Remanding Jefferson Cir. Ct.’s judgment on the pleadings dismissing Reid’s tort and contractual claims.

Dr. Reid was a general surgeon on the staff of Jewish Hospital and St. Mary’s Healthcare for forty years when the hospital’s medical executive committee votes to cancel his surgical and endoscopy privileges and that he could no longer perform any further surgical procedures unless he was accompanied by an actively practicing and board certified general surgeon or endoscopist.  Dr. Reid later filed suit seeking compensatory and punitive damages for breach of contract, intentional infliction of emotional distress, tortious interference with business and contractual relations, and slander. On September 12, 2014, KentuckyOne filed a Kentucky Rules of Civil Procedure (CR) 12.03 motion for judgment on the pleadings. Therein, KentuckyOne argued that it was entitled to immunity under the Health Care Quality Improvement Act, 42 United States Code (U.S.C.) §§ 11101et seq. (“HCQIA”), because the Hospital’s conduct with respect to Dr. Reid was related to its professional review activities. KentuckyOne further argued that, notwithstanding immunity, all of the claims asserted by Dr. Reid failed as a matter of law.  The trial court (Judge Audra Eckerle) granted KentuckyOne Health’s motion and dismissing Dr. Reid’s claims. Dr. Reid argues that the trial court erred in concluding that he could not overcome the rebuttable presumption that KentuckyOne was entitled to immunity. Dr. Reid points out that professional review actions are afforded a rebuttable presumption of immunity under the HCQIA only if certain conditions are met by the healthcare entity, including notice and a hearing, which Dr. Reid claims did not occur herein.

The trial court herein, because it concluded that the Hospital’s conduct was a professional review activity, never considered the standards set forth in 42 U.S.C. § 11112(a). Dr. Reid alleged in his pleadings, and the Hospital did not dispute, that he was never afforded any notice or opportunity for a hearing prior to his privileges being restricted. Certainly, 42 U.S.C. § 11112(b) does provide that the failure to meet the notice and hearing requirements does not, in and of itself, constitute a failure to meet the required standards in 42 U.S.C. § 11112(a). Nevertheless, we are of the opinion that the trial court must consider whether the Hospital met all of the standards in 42 U.S.C. § 11112(a) before the Hospital’s immunity can be determined. Accordingly, a judgment on the pleadings was inappropriate and further consideration of the pertinent provisions of the HCQIA is required.

As such, we necessarily do not reach the substance of Dr. Reid’s underlying claims.


 

Not to be published tort, insurance and civil procedure decisions:

226.  Appeal.  Substantial compliance doctrine.  Fee
Carlos Jones a/k/a Carlos Gresham vs. Brenda Clark
COA Not to Be Published Opinion reversing and remanding Jefferson Cir. Ct. dismissal or district court appeal holding  the circuit court violated the substantial compliance doctrine when it dismissed an otherwise timely filed district court appeal on the basis that the entire filing fee was not paid until after expiration of the appeal time. For the reasons more fully explained below, we REVERSE and REMAND.

246.
General Hale Contracting, Inc. vs. Motorist Mutual Ins. Co.
COA Not to Be Published Opinion affirming Warren Cir. Ct. entry of  judgment in conformity with a jury verdict dismissing, with prejudice, Terry Hale’s claim of bad faith against the appellee, Motorist Mutual Insurance Company (“Motorist”) claiming trial court committed error in admitting evidence

Bad faith claim was bifurcated and underlying tort claim for personal injuries in car collision went to jury and awarded Hale a the net sum of his recovery was $286,838.  No appeal by Motorists.

Hale’s bad faith claim against Motorist proceeded to trial. The circuit court ultimately dismissed this claim with prejudice after a jury made the following findings: (1) Motorist had not failed to adopt and implement reasonable standards for the prompt investigation of claims arising under insurance policies; (2) Motorist had not refused to pay Hale’s claims without conducting a reasonable investigation based upon all available information; (3) Motorist had not violated its duty to attempt in good faith to effectuate a prompt, fair and equitable settlement of a claim in which liability had become reasonably clear; and (4) Motorist had not compelled Hale to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amount Hale ultimately recovered in his lawsuit.

Hale’s arguments on appeal are two-fold. First, he contends the circuit court committed reversible error by allowing Motorist to introduce evidence regarding its negotiations with Hale and the parties’ settlement positions during and after the January 10, 2012 mediation. This, he asserts, is because Kentucky Rule of Evidence (KRE) 4082 provides that settlement negotiations are always inadmissible. Second, Hale argues the circuit court committed reversible error by also allowing Motorist to introduce expert opinion evidence that tended to prove he had exaggerated his estimate of economic damages resulting from the May 24, 2008 accident, and that he had also been comparatively negligent in causing the accident and a large extent of his own injuries by failing to avoid or lessen the severity of the accident by keeping a proper lookout, and by admittedly failing to wear a seatbelt. Hale asserts this expert evidence became irrelevant for all purposes after the jury in the September, 2012 trial found in his favor.

Both of Hale’s arguments have no merit because they are predicated upon a misapprehension of the issues presented in the January 2015 trial. To  reemphasize, the overarching issue was whether Motorist committed the tort of bad faith by denying coverage and otherwise failing to offer Hale an adequate settlement prior to the September 2012 trial date.

The elements of bad faith from Wittmer v. Jones, 864 S.W.2d 885 (Ky. 1993) are as follows:

[A]n insured must prove three elements in order to prevail against an insurance company for alleged refusal in bad faith to pay the insured’s claim: (1) the insurer must be obligated to pay the claim under the terms of the policy; (2) the insurer must lack a reasonable basis in law or fact for denying the claim; and (3) it must be shown that the insurer either knew there was no reasonable basis for denying the claim or acted with reckless disregard for whether such a basis existed . . . [A]n insurer is . . . entitled to challenge a claim and litigate it if the claim is debatable on the law or facts.

As to Hale’s first argument, Motorist did not introduce evidence of its settlement negotiations with Hale to prove either its liability for or the invalidity of Hale’s UM/UIM claim or its amount. KRE 408 prohibits such a use for this type of evidence. Moreover, doing so would have been pointless because the prior jury verdict following the September 2012 trial (which Motorist never appealed) had already resolved the matter of Motorist’s liability.

Instead, it is readily apparent from the record that Motorist introduced this evidence for “another purpose” that the language of KRE 408 does not prohibit. Specifically, Motorist used this evidence to establish that any failure on its part to offer a settlement with Hale between the January 10, 2012 mediation and September, 2012 trial did not injure Hale in any cognizable way. It demonstrated (1) all of Hale’s multiple settlement demands, which ranged between $1.3 million and $400,000, were well in excess of what he eventually recovered in his UM/UIM judgment; and (2) Hale admitted, over the course of his deposition testimony, that he never would have settled for the amount he was awarded in his UM/UIM judgment.

Hale’s second argument similarly misses the mark. To begin, Hale cites no rule of law standing for the proposition that evidence, once disbelieved by a jury at some point in time, ceases to be evidence for any and all purposes thereafter. This is because no such rule of law exists. Furthermore, by reintroducing the expert evidence it had previously introduced in the September, 2015 UM/UIM trial, Motorist was not attempting, as Hale repeatedly insists throughout his brief, to retry the UM/UIM action.


Download (MNT03182016.pdf, PDF, Unknown)

COA: March 11, 2016 Court of Appeals Decisions (Minutes)(205-224). 19 decisions; 4 published decisions

PUBLISHED: Negligent credentialing claim against hospital; unemployment benefits allowed for discharge other than work-related misconduct; commercial policy language limitation applied for single occurrence in child care center fatality; dependency and child neglect NOT PUBLISHED: Class action suit decertified; tortious interference with contract and with business expectancy; untimely appeal dismissed.

Bourbon County.ch.paris

Fourth and current Bourbon County Courthouse, located in Paris, Kentucky, completed in 1904. Beaux-Arts design by Frank P. Milburn, Architect, Washington, DC. South Carolina granite was used on the first story with Bedford Stone on the upper floors. Contractors were Gibson & Crawford of Logansport, Indiana. Built at a cost of $170,000. Listed in National Register of Historic Places in 1974.

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

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

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

Published Court of Appeals appellate cases for  this week –  March 11, 2016:
Links are to full text of PDF decision with AOC.

207.  Medical negligence.  Cause of action – negligent credentialing.
Joseph Paul Spalding avs Spring View Hospital, LLC
Court of Appeals Published Opinion  Affirming Partial Summary Judgment in Spalding’s case; affirmed summary judgment in favor of Spring View in Jones’ case; reverse and remand the respective orders of the Marion and Pulaski Cir Ct. in the negligent credentialing case

MAZE, JUDGE: These five consolidated appeals arise from three cases which originated in the Marion and Pulaski Circuit Courts. In three of the appeals, Karen Jones and Helen Adams seek reversal of two trial courts’ dismissals of their claims under CR1 12, while Spring View Hospital, LLC (hereinafter “Spring View”) cross-appeals on a statute of limitations issue in Jones’s case. In the remaining two appeals, Joseph Spalding and his wife (hereinafter “the Spaldings”) appeal from the grant of partial summary judgment on their claims of negligent credentialing against Spring View, which appeals from the denial of summary judgment on other grounds. The trial courts in all three cases held that the claims of negligent credentialing were unsustainable and unrecognized under current law.

Having reviewed the well-pled- and well-argued issues addressed to us from counsel for all parties, we affirm the Marion Circuit Court regarding partial summary judgment in the Spaldings’ case; we affirm that same court’s denial of summary judgment in favor of Spring View in Jones’s case; and we reverse and remand the respective orders of the Marion and Pulaski Circuit Courts dismissing Jones’s and Adams’s negligent credentialing actions.

 212.  Unemployment benefits.
Sunrise Children’s Services, Inc. vs. Kentucky Unemployment Commission
Court of Appeals Published Opinion Affirming Hardin Cir Ct  order affirming the decision of the Ky Unemployment Ins. Commission which in turn affirmed the appeal determining Lola Llerena was qualified to receive unemployment benefits upon finding Lola was discharged for reasons other than work-related misconduct.

215.  Insurance.  Policy language on occurrence and coverage.
Jessica Davis vs. Kentucky Farm Bureau Mutual Ins. Co.
Court of Appeals Published Opinion affirming Jefferson Cir Ct. summary judgment in a declaratory judgment action filed by Kentucky Farm Bureau Mutual Insurance Company in Jefferson Circuit Court which ruled there was a single occurrence for the purpose of determining the amount of coverage available under a policy of insurance issued by Kentucky Farm Bureau to Trina’s Treehouse  Childcare, LLC (Trina’s). We agree with the trial court there was a single occurrence as defined in the Kentucky Farm Bureau policy and, therefore, insurance coverage is limited to $500,000.

At the time Ja’Corey choked on the push-pin, Trina’s was insured by a commercial general liability policy issued by Kentucky Farm Bureau covering  Trina’s and its employees. The Kentucky Farm Bureau policy limits coverage by the number of occurrences from which the claims arose, stating that each occurrence is limited to $500,000 and provides for an aggregate maximum of $1,000,000. The policy further provides that each occurrence limit is the maximum Farm Bureau will pay “because of all ‘bodily injury’ and ‘property damages’ arising out of any one ‘occurrence.’” Occurrence is defined in the policy as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.”

A dispute arose between Kentucky Farm Bureau and Davis and Woods concerning the number of occurrences for purposes of the policy limitation provision. Kentucky Farm Bureau maintained the claims asserted against Trina’s, its officers and employees arose from a single occurrence limiting coverage under the policy to $500,000. Davis and Woods contended that each act of negligence caused Ja’Corey’s death and, therefore, there were multiple occurrences providing coverage under the policy in the amount of $1,000,000.

221.  Dependent adjudication.
Y.(E.) vs. Cabinet for Health and Family Services, Commonwealth of Kentucky 
Court of Appeals Published Opinion affirming Spencer Cir Ct

While E.Y. and B.Y. would qualify for several services, we believe the court fairly decided that removal was the only option in B.Y.’s case. The court heard testimony regarding E.Y.’s inconsistent participation in her case plan with regard to M.Y. despite the services provided to her. That evidence, combined with the social workers’ testimony regarding E.Y.’s parenting difficulties with respect to B.Y., is sufficient to conclude that removal is in B.Y.’s best interest at this point. We find no palpable error in the trial court’s order of removal.


Torts, insurance and civil procedure decisions:

See published decisions above

205.      Class Action.
Haynes Trucking LLC v. James Melvin Hensley
Court of Appeals Published Opinion and Order Vacating and Remanding Fayette Cir Ct.

These four consolidated appeals emerge from a class-certification procedure in a wage and hour action pertaining to the purported nonpayment of prevailing wages, benefits, and overtime in connection with public works projects in Kentucky. The Appellants maintain, among other things, that the Fayette Circuit Court improperly certified a diverse class of truck drivers. In addition, several motions by both Appellants and Appellees were passed by our Court to this merit panel including Appellees’ motion to dismiss the appeal by the Appellants of the trial court’s order denying the motion for partial summary judgment.

All of the outstanding procedural motions were dismissed at oral arguments as moot. Furthermore, we dismiss the Appellants’ appeal of the denial of the partial summary judgment as untimely. Finally, after careful consideration of the record and the arguments, we vacate and remand the certification order with directions to decertify the class.

216.  Tortious Interference with business expectancy and with contract.
Louisville Outlet Shoppes, LLC vs. Paragon Outlet Partners LLC
COA Not to Be Published Opinion affirming dismissal of action for tortious interference with contract and with business expectancy claims.

218.  Untimely appeal.
Jack Howell vs. DF Realty Group LLCCOA Not to Be Published Opinion affirming dismissal of appeal as untimely.


Download (MNT03112016.pdf, PDF, Unknown)