COA: September 15, 2017 Court of Appeals Decisions (Minutes)

Nos. 779-777: 19 Decisions Posted with a WHOPPING EIGHT decisions designated 'to be published' with links to full text of each decision

PUBLISHED DECISIONS:

779.  Criminal Law.  Vacated and remanded holding that criminal defendant was effectively without counsel in asserting his motion to withdraw his guilty plea.
Sturgill v. Commonwealth of Kentucky

781  Immunity.  Affirmed circuit court order that at this point in the litigation when no discovery has taken place, dismissal based on immunity is not appropriate.
University of Kentucky. City of Owenton, Ky

784.   Condemnation.  Reversed and remanded order of circuit court in favor of LFUCG.  Held LFUCG did not have right to condemn a portion of appellant’s property, creating a permanent easement for the construction of a large box culvert and drainage system.
Moore v. Lexington-Fayette Urban County Government

787.  Attorney fees and court costs.  Affirming Family Court order that appellant not entitled to indemnity and reimbursement from husband for litigation filed against her by PNC Bank, along with payment for her attorney’s fees.
Callahan v. Callihan

789.  Class Action.  Vacating and Remanding.  Circuit court’s class certification held deficient under CR 23.01, CR 23.02, and CR 23.03.
United Propane Gas Inc v. Purcell

 794.  Criminal Law.  Affirmed conviction and sentence of six years’ imprisonment for Possession of a Firearm by a Convicted Felon.
Sheets v. Commonwealth of Kentucky 796. Status Offense Juvenile.  Since likely to be repeated matter was not moot when child turned 18 during pendency of appeal.  Vacated Carter Family Court’s order finding John to be a status offender for failure by the CDW to follow proper procedure to confer the court with subject matter jurisdiction.
S.(J), Child Under Age Eighteen v. Commonwealth of Kentucky 

797.  Class Actions.  Vacate and remand interlocutory appeal of Nebraska Alliance Realty Company (“NARC”) finding the trial court erred by failing to make all the required findings pursuant to CR 23.
Nebraska Alliance Realty Company v. Brewer

Selected cases that were not designated for publication in tort, insurance and civil law.

785.  Interlocutory appeal of immunity ruling.  Held circuit court does not conclusively determine any disputed question, resolve any right, or otherwise provide this Court with anything to review where its interlocutory order denies a claim of immunity, or any other kind of claim, on the basis that in its view further discovery is needed, or genuine facts remain. Here, the circuit court did not make a finding as a matter of law on the issue of qualified immunity, which we could review. Rather, the circuit court found that there are genuine issues of material fact, making this appealed order interlocutory, which we cannot review. We have repeatedly held that such interlocutory orders are not appealable under any exception, and thus not subject to the jurisdiction of this Cour
Hembree v. Bowman

791.  Medical negligence.  Delayed diagnosis.  Affirmed lower court and rejected patient’s argument that Appellee’s delay in diagnosing her breast cancer resulted in a less optimistic prognosis, that this prognosis supports a claim for damages arising from mental anguish and emotional distress.
Ingram v. Radiology Associates of Northern Kentucky PLLC

MNT09152017

 

For links to all our posts on the minutes of the Court of Appeals, then click here.

For the index to archived minutes at the official AOC page, then click here.

For more information on unpublished decisions and obtaining case information, then continue reading below the fold.

Give for Good Louisville on Sept. 14 (All Day Thursday) — Jefferson County Public Law LibraryPlease consider a donation of $10 or more for

Donate a minimum of $10 and the law library has a chance for bonus dollars through the Community Foundation of Louisville

THANKS TO ALL WHO HELPED US RAISE OVER $3,000 FROM THIS YEARS GIVE FOR GOOD LOUISVILLE CAMPAIGN FOR 2017!

 

The Friends of the Jefferson County Public Law Library will be participating in this year’s Give for Good Louisville!

The Friends is a charitable non-profit organization which supports the Jefferson County Public Law Library  I understand times are lean, but the law library depends on your support to help it provide one of the best deals you will ever find practicing law.  Free facility and legal research materials.

The Friends of the Jefferson County Public Law Library is a non-profit corporation consisting of lawyers and members of the public whose sole purpose is to support and supplement the legal research and financial needs of the Jefferson County Public Law Library .   The law library’s legal research materials (books and on-line) is available to the public at no cost.  The Library is conveniently located in downtown Louisville in the second floor.  Go to the law library’s web site for a tour.  Quite impressive.

The library depends on court filing feels to provide the public (lawyers and non-lawyers) these free legal research materials on computer and books.   But, with filing fees down, we can’t emphasize how much we need and can use your help to keep providing the best in legal research.   And all of it is free.  Therefore, must ask the public and the attorneys for their financial help.

Donations can be as small as $10.  And would so very much be appreciated.

This is a special day of giving to local nonprofits.  If you make a donation of $10 or more at anytime on Thursday, September 14th, your donation can make the Friends organization eligible for bonus dollars through the Community Foundation of Louisville.

Please consider supporting this worthwhile organization that strives to provide up to date legal information to everyone in the community and reaches out to help the public know their rights and to engage in dialogue with the community about various local and legal issues.  Tomorrow, September 14th, please click on the following link to support the Friends of the Jefferson County Public Law Library.

https://www.giveforgoodlouisville.org/organizations/friends-of-the-jefferson-county-public-law-library

COA: September 8, 2017 Court of Appeals Decisions (Minutes)

Nos. 758-778: 21 Decisions Posted with 3 decisions designated 'to be published' with links to full text of each decision

PUBLISHED DECISIONS:

761.  Criminal Law.  Search & seizure.  Held trial court did not err in admitting the search of his cell phone data incident to arrest.  Affirming conviction after a jury trial for the offense of using electronic communications for the purpose of procuring or promoting a minor to engage in sexual activities in violation of Kentucky Revised Statutes (KRS) 510.155.
Kamphus v. Commonwealth of Kentucky

764.  Criminal Law.  Held under this set of facts, the trial court did not abuse its discretion in instructing the jury on first-degree assault nor did it err in denying the motion for a directed verdict on that charge  Affirmed conviction of multiple charges by a jury after he seriously injured a pedestrian while attempting to parallel park under the influence of alcohol finding there was sufficient evidence to support a finding that he acted under circumstances manifesting extreme indifference to the value of human life.
McCargo v. Commonwealth of Kentucky

772.  Criminal Law. Reversed trial judge’s order voiding his pretrial diversion and remand for a new pretrial diversion revocation hearing because the circuit court committed palpable error in denying Jones his due process rights during the hearing.
Jones v. Commonwealth of Kentucky

Selected cases that were not designated for publication in tort, insurance and civil law.

759.  Torts.  Premises liability.  Reversed summary judgment for slip for injuries from slipping on water at bingo hall.
Alexander v. Sunshine Bingo Center, LLC

767.  Negligence per se.  Affirmed instructions which did not include statutory duty under circumstances and which did not include Metro  Ordinance duty to ride bike on sidewalk.  Admissibility of authenticated medical records. Expert disclosure requirements per CR 26.
Raap v. Taylor

770.  Long Arm statute.  Affirmed extending jurisdiction to out of state loan guarantor.
Walker v. PBI Bank, Inc.

MNT09082017

For links to all our posts on the minutes of the Court of Appeals, then click here.

For the index to archived minutes at the official AOC page, then click here.

Supreme Court of Kentucky to hear arguments Sept. 20-21 in Frankfort

Proceedings are open to the public. This an AOC Press Release.

You can watch these in person at Frankfort or you can catch them streaming at the time of the arguments (small delay for streaming)

FRANKFORT, Ky., Sept. 7, 2017 – The Supreme Court of Kentucky will convene Sept. 20-21 in Frankfort to hear oral arguments in civil cases. Proceedings are open to the public and will take place in the Supreme Court Courtroom on the second floor of the state Capitol at 700 Capitol Ave. in Frankfort.

The public may also observe oral arguments via the Supreme Court live stream on the Kentucky Court of Justice website. Oral arguments are available online as they occur in real time and are not available as archives.

The Supreme Court is the state court of last resort and the final interpreter of Kentucky law. Seven justices sit on the Supreme Court and all seven justices rule on appeals that come before the court. The justices are elected from seven appellate districts and serve eight-year terms. A chief justice, chosen for a four-year term by fellow justices, is the administrative head of the state’s court system and is responsible for its operation. The Supreme Court may order a ruling or opinion to be published, which means that the ruling becomes the case law governing all similar cases in the future in Kentucky.

WEDNESDAY, SEPT. 20, 2017
9 AM
2016-SC-0220-DG
UNIVERSITY OF LOUISVILLE V. MARK ROTHSTEIN

View Case Briefs

“Sovereign Immunity. Government Contracts. Employment. KRS 45A.245. Whether the University is immune from a former employee’s claim for breach of his written employment contract.”

Discretionary Review granted 2/9/2017

Franklin Circuit Court, Judge Thomas D. Wingate

Attorneys for Appellant: Craig Christman Dilger and Emily Mattingly

Attorneys for Appellee: Robert W. Bishop, John Saoirse Friend and Tyler Zachary Korus

NOTE: Justice Hughes not sitting.

10 AM
2016-SC-0136-DG
ANGELA FORD, ET AL. V. FAISAL SHAH, ET AL.

View Case Briefs

“Tort Law. Conversion. Uniform Commercial Code. Whether the defendants committed the tort of conversion when a signatory on the plaintiff’s bank accounts used his apparent authority over the accounts to transfer funds for the benefit of the defendants.”

Discretionary Review granted 12/8/2016

Fayette Circuit Court, Judge Thomas L. Clark

Attorneys for Appellants: Angela Margaret Ford, Mindy Barfield and Brett Nolan

Attorneys for Appellee, Faisal Shah: Stephen M. O’Brien, III and David Coomer

Attorneys for Harold Baerg, Jr. and Kathleen M. Baerg: John F. Williams, John Nathaniel Billings, Christopher L. Thacker and Stephen Wilson

11 AM
2016-SC-000572-DG
LATASHA MAUPIN V. ROLAND TANKERSLEY

View Case Briefs

“Torts. Dog Bite Law. Issues involve application of KRS 258.235(4) as well as strict liability and negligence principles in a case involving unconfined dogs in a rural setting.”

Discretionary Review granted 3/15/2017

Jackson Circuit Court, Judge Oscar G. House

Attorneys for Appellant: Marshall F. Kaufman, III and Kerstin Schumann

Attorneys for Appellee: Daniel Allen Simons and Amanda Kash

THURSDAY, SEPT. 21, 2017
9 AM
2016-SC-0591-DG
SALLY CAROL GRASCH V. ALBERT FRANKLIN GRASCH, JR.

View Case Briefs

“KRS 403.190. Marital Property. Contingent Fee Cases. The only issue to be addressed in this matter is whether contingent fee cases of an attorney spouse should be treated as marital property under KRS 403.190.”

Discretionary Review granted 2/9/2017

Fayette Circuit Court, Judge Jo Ann Wise

Attorneys for Appellant: Suzanne Marie Baumgardner and Valerie S. Kershaw

Attorneys for Appellee: Kara Read Marino and Meredith Fannin

NOTE: Justice VanMeter not sitting.

10 AM
2016-SC-000457-DG
RICHARD STORM V. LOUIS MARTIN

View Case Briefs

“Torts. Public Employee Personal Liability. Whether the use of the word “shall” in KRS 179.070(1) imposes mandatory liability upon a county engineer for tree removal from a public right-of-way creating a traffic hazard.”

Discretionary Review granted 2/9/2017

Jefferson Circuit Court, Judge Mary M. Shaw

Attorneys for Appellant: Paul Guagliardo, Michael J. O’Connell, and Gregory Scott Gowen

Attorneys for Appellee: Lawrence Lee Jones, II, Alexander Davis, and Ashton Smith

11 AM
2016-SC-000248-DG
NORFOLK SOUTHERN RAILWAY COMPANY V. SHARON JOHNSON

View Case Briefs

“Torts. Property Owner Liability. Firefighter’s Rule. Issues include whether a police officer is barred from suing a property owner for injuries incurred when she fell down a hill while pursuing a suspect.”

Discretionary Review granted 3/15/2017

Boyle Circuit Court, Judge Darren Peckler

Attorneys for Appellant: Robert Barry Cetrulo, Casey Leigh Hinkle, and Michael P. Abate

Attorneys for Appellee: Kelly P. Spencer and Lyman Darby

Courthouses with an impact – architecture or history.

Looking for suggestions of any courthouse in the Commonwealth that you think played a significant part over the years in its architecture (beauty) or history.

I would like to obtain information on any courthouse you think has a story to tell.

A story of it’s beauty, its style.

A story from its history — a famous trial, famous lawyer, famous event, or more.

I would like to then obtain more in the way of history, commentaries, the courthouse square, the lawyers, the cases and more on the notable homes of justice.  Can be an old courthouse that is no longer even standing.

If you have any old postcards, pictures, news stories or more to help this effort, then please, please be willing to share.

Credit will always be given.

SC: Attorney Discipline Matters for August 24, 2017

BRYAN EDWARD BENNETT V. KENTUCKY BAR ASSOCIATION
2017-SC-000241-KB IN SUPREME COURT
ORDER OF PUBLIC REPRIMAND.
ALL SITTING. ALL CONCUR.

KENTUCKY BAR ASSOCIATION V. CARL WAYNE GIBSON
2017-SC-000247-KB IN SUPREME  COURT
TO BE PUBLISHED
ORDER OF SUSPENSION FROM THE PRACTICE OF LAW FOR 30 DAYS.
ALL SITTING. ALL CONCUR. 

SC: August 2017 Grants of Discretionary Review by the Supreme Court of Kentucky (MDRs)

Complete list of cases pending discretionary review by dates granted and summary of issue presented at bottom of this page.

COURT ORDERS GRANTING MOTION FOR DISCRETIONARY REVIEW – 
AUGUST 16, 2017 

BIG SANDY COMPANY, LP V. EQT GATHERING, LLC, ET AL.
2016-SC-000561-DG PIKE
WRIGHT, J., NOT SITTING.

VANHOOK ENTERPRISES, INC. V. KAY & KAY CONTRACTING, LLC.
2016-SC-000666-DG PULASKI
VENTERS, J., NOT SITTING.

C. W. HOSKINS HEIRS, ETC. V. RUTH FARMER WELLS, ET AL.
2017-SC-000004-DG LESLIE

DEPARTMENT OF REVENUE, ETC. V. MARK F. SOMMER, ET AL.
2017-SC-000071-DG FRANKLIN
VANMETER, J., NOT SITTING.

STEVEN M. JACOBI V. F. LARRY HOLBERT
2017-SC-000092-DG HARDIN

COMMONWEALTH OF KENTUCKY V. B. H.
2017-SC-000155-DG JEFFERSON

EQT PRODUCTION COMPANY V. DANNY POTTER, ET AL.
2017-SC-000161-DG PIKE
AND
BLUE FLAME ENERGY CORPORATION V. DANNY POTTER, ET AL.
2017-SC-000164-DG PIKE
WRIGHT, J., NOT SITTING.

DON HENSLEY V. KEITH A. GADD, ET AL.
2017-SC-000189-DG GARRARD

COREY M. JETER V. COMMONWEALTH OF KENTUCKY
2017-SC-000232-DG JEFFERSON

ROBERT SHELBY CAUDILL V. COMMONWEALTH OF KENTUCKY
2017-SC-000288-DG LETCHER
WRIGHT, J., NOT SITTING.


2017.08.16.DiscretionaryReview

Email from AOC on CourtNet 2.0. Not just for Kentucky Lawyers. Now available to media outlets.

The AOC invites you to subscribe to CourtNet 2.0, the application that
allows you to search Kentucky court cases online 

        
The Administrative Office of the Courts invites your media outlet to subscribe to CourtNet 2.0, a program that provides near real-time, online access to Kentucky civil and criminal cases. The AOC is now ready to offer CourtNet 2.0 subscriptions to media statewide after a pilot rollout to several media outlets.
The application offers sophisticated features, including:
 
  • Flexible search engine
  • Active and inactive cases
  • Detailed case information
  • Ability to save searches for later review
  • Ability to re-execute last 10 searches
  • Visual flags for warrants, summonses and failure to appear
 
CourtNet 2.0 is the first major upgrade to CourtNet in the last decade and was developed in-house at the AOC. The AOC began a staggered statewide implementation of CourtNet 2.0 in 2013 and today CourtNet 2.0 has nearly 6,000 users. It is available to members of the Kentucky Bar Association; justices, judges, circuit court clerks and court personnel in the Judicial Branch; and all agencies in the Executive and Legislative branches. 
 
Subscription Plans
Subscriptions start at only $15 per month. There is a charge for each image (PDF) that is viewed/
downloaded and a charge for each case searched over the number allowed within a specific plan. The person who serves as the administrator of your account can add other users (subaccounts) for $10 per month per user. You can change your plan at the end of the monthly billing period if you need more or fewer searches. 
 
How to Subscribe to CourtNet 2.0
To subscribe to CourtNet 2.0, email the information below to courtnetadmin@kycourts.net. You will receive an email acknowledging your request. Within three to five business days, you will receive another email with information on how to set up an account online. You will need to accept the online user agreement when you establish your account.
 
Please put an X by the plan you prefer and provide information about the primary contact on the account, which is the person who will administer the main account and any subaccounts. Also provide information on a billing contact if the person who processes payment is different from the primary contact. 
 

COURTNET 2.0 SUBSCRIPTION PLANS FOR MEDIA
(   ) Basic. Up to 45 cases per month, $15 monthly subscription fee w/$.50 overage, $.50 per image,
$10 per additional user
(   ) Advanced. Up to 175 cases per month, $50 monthly subscription fee w/$.50 overage, $.40 per image,
$10 per additional user
(   ) Professional. Up to 500 cases per month, $125 monthly subscription fee w/$.50 overage, $.30 per image, $10 per additional user
(   ) Enterprise. Up to 1,000 cases per month, $200 monthly subscription fee w/$.50 overage, $.10 per image,
$10 per additional user
 
CONTACT INFORMATION
Name of Media Outlet
Name of Primary Contact
Street Address
City, State, ZIP
Phone
Email
 
Name of Billing Contact
(if different from Primary Contact)
Billing Street Address
Billing City, State, ZIP
Billing Phone
Billing Email
 
For Assistance
If you have questions about setting up a CourtNet 2.0 account or using the application, contact courtnetadmin@kycourts.net or 502-573-2350, x50150. (Please do not respond to this email.)
 
With CourtNet 2.0, we’ve reached an important milestone in how records are accessed and shared within the Kentucky court system. The AOC has gotten great reviews on this application and I believe media outlets will benefit from this exceptional resource. I appreciate your interest in covering news related to the courts and the judiciary.
 
Laurie K. Dudgeon
Director
Administrative Office of the Courts
1001 Vandalay Drive
Frankfort, Kentucky 40601
502-573-2350

COA: September 2017 Oral Argument Calendar for Court of Appeals

Some interesting issues this month of September:

Click here for a complete list of our posts for COA Arguments and here for those for SCOKY. And here is a link to the AOC page containing their index to all Court to Appeal oral argument calendars. with names, litigants, issues, and the dates/times/locations for each argument – Oral Arguments Calendar.

September2017