Argument Calendar for Aug. 2008 for Kentucky Court of Appeals

August  2008 Court of Appeals Argument Calendar posted. [Go to calendar for more info on counsel, etc.]

LOCATION: COURT OF APPEALS COURTROOM, 360 DEMOCRAT DRIVE,
FRANKFORT, KENTUCKY

DATE: Tuesday, August 05, 2008

9:00 AM NICKELL THOMPSON ROSENBLUM
C. K. VS CABINET FOR HEALTH AND FAMILY SERVICES ET AL. 2007CA001601
Whether trial ct erred in: 1) assuming jurisdiction of a dependency action; 2) assuming jurisdiction of termination of parental rights action; 3) finding child was neglected in dependency action and using such finding in termination action against mother; 4) finding child was neglected in termination action and using such finding against appellant father; 5) finding appellant met the grounds set forth in KRS 625.090(2); and 6) finding Cabinet introduced clear and convincing evidence in support of
findings.

1:15 PM NICKELL LAMBERT, (JAMES) KNOPF
EDWARD MIALBACK VS UNIVERSITY MEDICAL CENTER INC. 2007CA001096
Show cause hearing.

2:00 PM CAPERTON ACREE ROSENBLUM
ROBERT BURNSIDE VS AMERICAN TAX FUNDING, LLC 2007CA001687
Writ of mandamus to compel Secretary of finance and Administration cabinet to assign delinquent tax claims to 3rd party purchasers.

2:45 PM CAPERTON ACREE ROSENBLUM
THE ST. LUKE HOSPITALS, INC. VS SAINT ELIZABETH MEDICAL CENTER,
INC. ET AL.
2007CA001663
ALJ entered an order on a certificate of need to establish an open heart surgery program and the circuit court reversed.

3:30 PM KELLER THOMPSON WINE
KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY VS JASON
BLEVINS ET AL.
2008CA000525
Insurance coverage question. Homeowner insurance policy carrier appeals from a judgment requiring it to provide coverage for and defend its insureds. Appeal and cross-appeal. Underlying issues between parties are unresolved pending this appeal.

LOCATION: COURT OF APPEALS COURTROOM, 360 DEMOCRAT DRIVE,
FRANKFORT, KENTUCKY

DATE: Wednesday, August 13, 2008

9:30 AM THOMPSON VANMETER HENRY
JOHN ADAMS ET AL. VS LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT ET AL.
2007CA000066
Appellants appeal unanimous verdict in favor of appellee in racial discrimination action. Appellants argue key witnesses were not allowed to testify, and extensive evidence was excluded, including report by aide to the mayor which admitted discrimination, and city’s admissions in another litigation that manager was engaged in racism. Appellants complain defense argued plaintiffs should not be severed and trial ct agreed. Appellees argued for severance of plaintiffs.Trl Ct. reversed ruling.

10:45 AM THOMPSON VANMETER HENRY
WILLIAM LEGRAND ET AL. VS ROBERT EWBANK ET AL. 2007CA001770 Appellants complain of a ruling by the Board of Adjustments that a sand company had non-conforming use rights to conduct sand and gravel mining operations on all land it owned that was under permit at the time of the comprehensive plan. The sand company argues its right to continue existing mining activities under KRS 100.253(2) and the "diminishing asset" doctrine.

1:15 PM HENRY MOORE THOMPSON
MARY LASSITER VS AMERICAN EXPRESS TRAVEL RELATED SERVICES
COMPANY, INC. ET AL.
2007CA000908
Constitutional Law and Escheats; State Budget Director appeals decision of Franklin Circuit Court declaring unconstitutional Section 39 of HB 380, which temporarily reduced from 15 to 7 years the time outstanding traveler’s checks are presumed abandoned.

LOCATION: FLEMING COUNTY COURTHOUSE, 100 COURT SQUARE,
FLEMINGSBURG, KENTUCKY

DATE: Friday, August 15, 2008

10:00 AM KELLER TAYLOR GUIDUGLI
MYERS ARNETT VS CITY OF STANTON ET AL. 2007CA000266
This is an appeal from the trial court’s decision which affirmed the removal of the Appellant, Mayor of the City of Stanton, from his position.

10:45 AM KELLER TAYLOR GUIDUGLI
FALLS CREEK, INCORPORATED VS LOUISA BOARD OF WATER AND SEWER COMMISSION ET AL. 2007CA001674
This is an appeal of a decision by the trial court which granted summary judgment to the Appellees. The Appellants maintain that the Appellees unjustly and arbitrarily failed to comply with contractual obligations which were part of an agreement it made with the Appellants. The underlying agreement involves the development and operation of a sewer pumping station.

11:30 AM GUIDUGLI KELLER TAYLOR
JULIE LOWERY VS CRYSTAL WHEELER ET AL. 2007CA001287
Grandmother had been declared defacto custodian had child removed. Issue standard used by court.

2:00 PM TAYLOR KELLER GUIDUGLI
RILEY PARTIN VS BYRD PARTIN ET AL. 2007CA000595
Whether circ2:00 PM TAYLOR KELLER GUIDUGLI
RILEY PARTIN VS BYRD PARTIN ET AL. 2007CA000595
Whether circuit court complied with Court of Appeals opinion reversing and remanding previous order.

LOCATION: CHRISTIAN COUNTY JUSTICE CENTER, 100 JUSTICE WAY, DISTRICT
COURTROOM 3, HOPKINSVILLE, KENTUCKY

DATE: Monday, August 18, 2008

10:00 AM MOORE NICKELL STUMBO
JEFFREY SCHERRETZ VS COMMONWEALTH OF KENTUCKY 2007CA001605
Criminal – issues: (1)whether evidence supported jury instructions and conviction of manslaughter and burglary;(2)whether Commonwealth was required to identify unknown accomplice or conspirator by name;(3)whether appellant’s right to confront witness was comprised;(4)whether comments made to jury by Commonwealth during closing regarding experimenting during deliberations prejudiced Appellant;(5)whether Commonwealth in closing arguments shifted burden of proof.et al.

10:45 AM MOORE NICKELL STUMBO
DAVID BEST VS WEST AMERICAN INSURANCE COMPANY 2007CA002289
Appeal from entry of summary judgment to defendant involving insurance claim on a car insurance policy regarding whether a repossession of a vehicle for an alleged breach of a sales contract is covered as a theft.

11:30 AM MOORE NICKELL STUMBO
R. O. GILES ENTERPRISES, INC. VS ROGER L. MILLS (DECEASED)/LINDA S.
MILLS (WIDOW) ET AL.
2008CA000709
Workers compensation case regarding whether a landowner can be subjected to workers compensation liability under KRS 342.610(2)(a)wherein the landowner enters into an agreement with a second party for the removal and purchase of timber from its property when an employee of the second party is killed while removing timber.

2:00 PM NICKELL MOORE STUMBO
J. W. VS E. C. 2007CA002447
Whether statutory requirements for involuntary TPR were satisfied and whether Cabinet should have been made an indispensable party.

LOCATION: JEFFERSON COUNTY JUDICIAL CENTER, 10TH FLOOR APPELLATE
COURTROOM, 700 WEST JEFFERSON STREET, LOUISVILLE,

DATE: Monday, August 18, 2008

2:00 PM WINE CLAYTON DIXON
E. MEENA VS LOUISVILLE METRO COUNCIL ET AL. 2007CA001831
Meena appeals from an order affirming a re-zoning ordinance. He argues that the council’s action was arbitrary, was not supported by adequate findings or substantial evidence, and failed to properly address the traffic impact caused by the development.

2:45 PM WINE CLAYTON DIXON
CLAIRE LONG ET AL. VS ROBERT LOEFFLER ET AL. 2006CA001411
Long and Mosley appeal from summary judgment orders dismissing their action against a trustee. Whether original trustee was required to exercise her powers of appointment in writing; summary judgment on claim for breach of fiduciary duty; denial of motions to compel discovery, to amend complaint, and compel accounting; attorney fees and costs treated as distributions from trust.

LOCATION: CHRISTIAN COUNTY JUSTICE CENTER, 100 JUSTICE WAY, DISTRICT
COURTROOM 1, HOPKINSVILLE, KENTUCKY

DATE: Tuesday, August 19, 2008

10:00 AM STUMBO MOORE NICKELL
CHRISTOPHER HUFF VS RALPH KEPLEY ET AL. 2006CA002042
Appeal from dismissal per CR 41.02; whether trial court abused discretion in dismissing personal injury case for lack of prosecution.

10:45 AM STUMBO MOORE NICKELL
LESLIE PRIDE VS COMMONWEALTH OF KENTUCKY 2007CA002033
MOR direct appeal from conditional guilty plea; failure to suppress evidence obtained pursuant to search warrant; Did affidavit contain false or misleading information?

LOCATION: JEFFERSON COUNTY JUDICIAL CENTER, 10TH FLOOR APPELLATE
COURTROOM, 700 WEST JEFFERSON STREET, LOUISVILLE,

DATE: Tuesday, August 19, 2008

9:30 AM WINE CLAYTON DIXON
CHARLES LYNCH VS CLAIMS MANAGEMENT CORPORATION 2007CA001840
Lynch appeals from a summary judgment awarding CMC funds from his UM proceeds. Whether UM proceeds duplicate benefits received under private disability policy; enforceability and scope of reimbursement agreement; "made-whole" & "common fund" doctrines; real party in interest.

10:15 AM CLAYTON DIXON WINE
THE FLOORING GALLERY, LLC VS MOREL CONSTRUCTION COMPANY, INC.
2007CA001934
Appeal from an award of attorney’s fees absent a statute or contract.

2007CA000133
11:00 AM VANMETER WINE GUIDUGLI
UNIVERSITY MEDICAL CENTER, INC. VS MICHAEL BEGLIN ET AL. 2007CA000018
Did trial court improperly instruct jury on spoilation of evidence and punitive damages in this medical malpractice case?

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