April 6, 2012 COA Minutes — Nos. 312-332 (21 decisions; 5 published)

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PUBLISHED DECISIONS OF COA:

313.  CRIMINAL LAW
CAWL (KYRUS LEE)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
STUMBO (CONCURS) AND VANMETER (CONCURS)
2010-CA-000358-MR
TO BE PUBLISHED
JEFFERSON

THOMPSON, JUDGE: Pedro Higareda appeals from an order and amended judgment of the Boone Circuit Court vacating Higareda’s conviction for being a persistent felony offender in the second degree and modifying his sentence but reaffirming his burglary in the first degree conviction. We affirm.

320. CRIMINAL LAW. SENTENCING.
LAND (GARY L.)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
DIXON (CONCURS) AND KELLER (CONCURS)
2010-CA-001840-MR
TO BE PUBLISHED
CRITTENDEN

STUMBO, JUDGE: Gary Land is appealing from a conditional guilty plea to the offense of second-degree escape. Land reserved the right to appeal the legal question of whether the failure to report for an alternative sentence that was ordered to be served on weekends constitutes second-degree escape. We agree with the trial court that failure to report to a weekend jail sentence does constitute escape and affirm.

322. EMPLOYMENT LAW.
PLUCINSKI (DIANET)
VS.
COMMUNITY ACTION COUNCIL
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
TAYLOR (CONCURS) AND DIXON (CONCURS)
2010-CA-002056-MR
TO BE PUBLISHED
FAYETTE

LAMBERT, JUDGE: In this discrimination and retaliation action, Dianet Plucinski has appealed from the October 18, 2010, final judgment of the Fayette Circuit Court entered following the return of a jury verdict in favor of her former employer, Community Action Council (CAC). After a review of the record and the parties’ arguments, we find no merit in Plucinski’s arguments and therefore affirm.

On appeal, Plucinski raises two issues. The first argument addresses the circuit court’s decision to grant summary judgment in favor of CAC on her disparate treatment claim. Her second argument addresses the jury instructions. We shall address each argument in turn.

Before we reach the merits of Plucinski’s appeal, we must recognize that Plucinski failed to comply with Kentucky Rules of Civil Procedure (CR) 76.12(4)(c)(iv) by including “ample references to the specific pages of the record” or of the videotaped record in the statement of the facts section of her brief. Although Plucinski did include references to several depositions, those depositions were not included in the certified record on appeal; only a few of the pages she cited were included as exhibits to filings below, but the specific pages where they appear in the record were not identified. Nevertheless, we shall decline to impose the penalty of striking Plucinski’s brief at this time. CR 76.12(8)(a).

324. COMMERCIAL LAW.
DEAN (MARK D.)P.S.C.
VS.
COMMONWEALTH BANK & TRUST COMPANY
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
TAYLOR (CONCURS) AND VANMETER (CONCURS)
2010-CA-002152-MR
TO BE PUBLISHED
SHELBY

ACREE, JUDGE: Appellant Mark D. Dean, PSC (Dean) appeals the Shelby Circuit Court’s entry of summary judgment in favor of the Appellee, Commonwealth Bank & Trust Company (Commonwealth). Dean argues the circuit court erred by failing to apply the discovery rule to its claim under the Uniform Commercial Code, Kentucky Revised Statutes (KRS) 355.1-101, et seq. (Code or UCC); Dean also argues that the court erred by granting summary judgment in favor of Commonwealth despite the existence of genuine issues of material fact. Finding no genuine issue of material fact and that Commonwealth is entitled to judgment as a matter of law, we affirm.

330
GOLDEN (JASON)
VS.
PAINTSVILLE CITY UTILITIES
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
THOMPSON (CONCURS) AND VANMETER (CONCURS)
2011-CA-000929-MR
TO BE PUBLISHED
JOHNSON

LAMBERT, JUDGE: Jason Golden appeals from the Johnson Circuit Court’s April 5, 2011, entry of summary judgment in favor of defendant Paintsville City Utilities and the court’s April 15, 2011, order denying his motion to alter, amend, or vacate the entry of summary judgment. Discerning no reversible error, we affirm the orders of the trial court.

All claims asserted against Fred Rose, California Casualty, and Hartford Insurance were dismissed with prejudice as settled. The claims against Randy Hale were dismissed with prejudice by entry of summary judgment. Golden’s remaining cause of action was his negligence claim against Paintsville City Utilities.

Paintsville City Utilities filed a motion arguing that it was entitled to summary judgment on all claims asserted against it as the record was devoid of any evidence to support or provide a legitimate basis for Golden’s negligence claims against it or its employees. On April 5, 2011, the trial court granted Paintsville City Utilities’ motion for summary judgment and dismissed Golden’s action. Golden then filed a motion to alter, amend, or vacate the court’s order granting summary judgment to Paintsville City Utilities. Golden argued that material issues of fact existed which were supported by the testimony of witness Janet Preece. Preece had testified that immediately prior to the accident at issue, the vehicle operated by Larry Herald, an agent/employee of Paintsville City Utilities, fishtailed. Golden’s motion to alter, amend, or vacate was denied on May 9, 2011. This appeal now follows.

In the case at bar, the evidence of record clearly establishes that Paintsville City Utilities’ employee, Larry Herald, did not breach his duty to exercise ordinary care under the circumstances of the subject automobile accident.

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