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.

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.

COA: September 1, 2017 Court of Appeals Decisions (Minutes)

Nos. 735-757: 23 Decisions Posted with 3 decisions designated 'to be published' with links to full text of each decision

PUBLISHED DECISIONS:

740.  Reversed and remanding order denying his motion to modify support and maintenance obligations established in 2006 in dissolution proceedings initiated in a Tennessee court.
Geise v. Geise

741.  Appeals.  Final agreed order adjudicating grandparent visitation had been entered  and  Notice of appeal untimely filed;
Nunley v. Neuling

750.  Criminal Law. Affirmed circuit court order granting criminal defendant relief under RCA 11.42 when convicted of murder but claiming ineffective assistance of counsel. Tackett claimed both his trial attorney and his appellate attorney were ineffective because he did not receive a jury instruction on the lesser-included offense of second-degree manslaughter, even though he  should have.
Commonwealth of Kentucky v. Tackett

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

739.  Affirmed dismissal of minor’s claim for lack of prosecution.
Jimale v. Nationwide Mutual Fire Ins. Co.

MNT09012017

 

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.

All decisions regardless of publication are posted and can be read, but those decisions designated not for publication cannot be cited as legal authority.  See, KRCP 76.28(4)(c)(“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.”)

You will find the complete list of this week’s decisions below with number, names of parties, case number, lower court (eg., county), etc. with a hot link to the full text of the decision.  Please note that you will have to check Case Information for each decision for finality, amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.

COA: August 25, 2017 Court of Appeals Decisions (Minutes)

Nos. 722-734: 13 Decisions Posted with 1 decision designated 'to be published' with links to full text of each decision

PUBLISHED DECISIONS:

734.  Family Law.  Reversed the decision of the Johnson Circuit Court and remand for a hearing on whether visitation is warranted pursuant to the requirements of KRS 403.320(1) or (2).
Baldwin v. Mollette

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

724.  Store detention of minor.
Greer v. K-Mart Corporation

MNT08252017

 

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.

All decisions regardless of publication are posted and can be read, but those decisions designated not for publication cannot be cited as legal authority.  See, KRCP 76.28(4)(c)(“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.”)

You will find the complete list of this week’s decisions below with number, names of parties, case number, lower court (eg., county), etc. with a hot link to the full text of the decision.  Please note that you will have to check Case Information for each decision for finality, amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.

COA: August 18, 2017 Court of Appeals Decisions (Minutes)

Nos. 713-721: 9 Decisions Posted with 2 decisions designated 'to be published' with links to full text of each decision

PUBLISHED DECISIONS:

716.  Confidentiality clauses and attorneys.  Held that the Supreme Court Rules may indeed create public policy on confidentiality and non-solicitation agreements, a violation of  Rule 5.6, does not form the basis for a wrongful termination suit.
Greissman v. Rawlings and Associates, PLLC

717.  DUI Blood tests.  Affirmed Circuit Court which held on appeal from district court that the excessively high cost of an independent blood test at University of Kentucky Medical Center effectively precluded the Appellee, James E. Riker, Jr. (Riker), from obtaining the statutorily mandated test that potentially might result in producing in exculpatory evidence and thus the excessive cost of the blood test constituted a denial of due process.
Commonwealth of Kentucky v. Riker

MNT08182017

 

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.

All decisions regardless of publication are posted and can be read, but those decisions designated not for publication cannot be cited as legal authority.  See, KRCP 76.28(4)(c)(“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.”)

You will find the complete list of this week’s decisions below with number, names of parties, case number, lower court (eg., county), etc. with a hot link to the full text of the decision.  Please note that you will have to check Case Information for each decision for finality, amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.

COA: August 11, 2017 Court of Appeals Decisions (Minutes)

Nos. 693-712: 20 Decisions Posted with 5 decisions designated 'to be published'

PUBLISHED DECISIONS:

695.  Mandamus.  Affirmed petition for writ of mandamus at circuit court directing district court to find probable cause for two counts of first-degree wanton endangerment but on different grounds
K.(D.M.) v. Judge Gina Calvert

703.  Regulatory Law.  Found dealership made improper use of dealer plates.
Bruce Walters Ford Lincoln KIA v. Kentucky Motor Vehicle Commission

707.  Criminal.  Reversed the judgment of the Fulton Circuit Court with respect to the imposition of court costs of $160
Jones v. Commonwealth of Kentucky

710.   Elections.  Early signatures not invalidate nomination.
Stoecklin v. Fennell

712. Criminal Law.  Returning case file to criminal defendant.  Gotta do it.
Polly v. Commonwealth of Kentucky

 

MNT08112017

 

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.

All decisions regardless of publication are posted and can be read, but those decisions designated not for publication cannot be cited as legal authority.  See, KRCP 76.28(4)(c)(“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.”)

You will find the complete list of this week’s decisions below with number, names of parties, case number, lower court (eg., county), etc. with a hot link to the full text of the decision.  Please note that you will have to check Case Information for each decision for finality, amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.

COA: August 4, 2017 Court of Appeals Decisions (Minutes)

Nos. 668-692: 25 Decisions Posted with 3 decisions designated 'to be published'

PUBLISHED DECISIONS:

670.  Mechanics Lien.  Affirmed Jefferson Circuit Court’s order granting summary judgment to Brown Capital, Ltd., and Noltemeyer Capital, Ltd., doing business as Brown Noltemeyer Company, as well as a subsequent order releasing Brown Noltemeyer’s bond.
Prodigy Construction vs. Brown Capital, LTD

677.  Arbitration.  Affirmed order and judgment of the Jefferson Circuit Court confirming an arbitration award related to unpaid brokerage and agent fees arising from a real estate transaction.
Meers v. Simonin Realtors

684.  Kentucky Disability.  Reversed & remanded Kentucky Retirement Systems denial of  Ms. Jett disability retirement benefits.
Jett v. Kentucky Retirement Systems

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

671.  Arbitration. Power of Attorney. Reversed the trial court and noted per Whisman that a power of attorney needs something more specific than such a broad grant of authority to effectively include the authority to enter into an enforceable arbitration agreement, Whisman was reversed in this respect by the United States Supreme Court. Kindred Nursing Centers Ltd. Partnership v. Clark, 137 S.Ct. 1421, 1429 (2017).
Diversicare Healthcare Services v. Riley, Executor Estate of Thomas Riley, Sr.

672.  Fraud.
Wigginton v. Daniel Boone Log Homes

678.  Premises Liability.  Duty and standard of care owed to independent contractor electrocuted while working on premises.
Cornett v. Labreveux

679.  Continuance.  In claim against KFC for improper preparation and contamination of food, affirmed trial court’s dismissal of claims after plaintiff’s request for a continuance was denied
Marshall v. Lexington Foods of Elizabethtown

685.  Interpleader.  Affirmed agreeingwith the trial court that Allstate was properly dismissed from the case as a matter of law that once an insurance company pays proceeds into the court, it is discharged from further liability and obligation.
Gibson v.  Allstate Indemnity Co.

686.  Medical Negligence.  Affirmed jury verdict in favor of physicians on claims of failure to diagnose.
Mitchell v. Baptist Physicians Lexington, Inc.

MNT08042017

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.

All decisions regardless of publication are posted and can be read, but those decisions designated not for publication cannot be cited as legal authority.  See, KRCP 76.28(4)(c)(“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.”)

You will find the complete list of this week’s decisions below with number, names of parties, case number, lower court (eg., county), etc. with a hot link to the full text of the decision.  Please note that you will have to check Case Information for each decision for finality, amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.

COA: July 28, 2017 Court of Appeals Decisions (Minutes)

Nos. 641-667: 27 Decisions Posted with 7 decisions designated 'to be published' by Michael Stevens

PUBLISHED DECISIONS:

644.  Family Law.  Affirmed circuit court which held that mother’s claims were time-barred and that the defendants who conduct evaluations of child had immunity from suit.
Nave v. Feinberg

647.  Trials.  Reversed and remanded directed verdict against empty chair defendant in medical negligence claim with multiple defendant.  “Empty-chair defense (1981) A trial tactic in a multiparty case whereby one defendant attempts to put all the fault on a defendant who plea-bargained or settled before trial or on a person who was neither charged nor named as a party.” DEFENSE, Black’s Law Dictionary (10th ed. 2014).
House, Adm’x Estate of Laura Alexander v. Jewish Hospital

651. Churches.  Affirmed summary judgment in favor Presbyterian Church (U.S.A.) relating to an action claiming slander and libel brought by a former employee.  On review  consideration and application of the ecclesiastical-abstention doctrine and ministerial exception.
Darmody v. Presbyterian Church

652.  Government Procurement.  Held contract was not void and did not violate the public bidding process
Southeast Bullitt Fire Protection District v. Southeast Bullitt Fire Rescue Dept.

657.  Criminal Law.  Reversed  circuit court’s order affirming and remand the matter to the McCracken District Court for an entry of a judgment of acquittal on conviction of  Wanton Endangerment in the Second Degree

664.  Criminal Law. Affirmed trial court’s ruling denying defendant’s motion to suppress evidence
Mundy v. Commonwealth of Kentucky

665.  Family Law. Held trial court did not abuse discretion when it denied Appellant Randy Williams’ motion to modify visitation
Williams v. Williams

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

650.  Immunity in wage and hour claim.
Louisville Jefferson County Metro Gov’t v. Wilcox

655.  Premises Liability.  Business.
Velours v. Wal-Mart Stores East, Limited Partnership

 

MNT07282017

 

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.

All decisions regardless of publication are posted and can be read, but those decisions designated not for publication cannot be cited as legal authority.  See, KRCP 76.28(4)(c)(“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.”)

You will find the complete list of this week’s decisions below with number, names of parties, case number, lower court (eg., county), etc. with a hot link to the full text of the decision.  Please note that you will have to check Case Information for each decision for finality, amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.

COA: July 21, 2017 Court of Appeals Decisions (Minutes)

Nos. 605-640: 36 Decisions with 5 decisions designated 'to be published' by Michael Stevens

PUBLISHED DECISIONS:

605.  Criminal Law. Held trial court properly denied Abukar’s race-based and religion- based challenge to the prosecutor’s peremptory strike of a juror
Abukar v. Commonwealth of Kentucky

612.  Tax sale foreclosure.  Held real estate foreclosure action which sought to enforce a tax lien against B&P Apartments (B&P), was barred under the doctrine of res judicata.
Kentucky Tax Bill Servicing, Inc. v. B&P Apartments Inc.

614.  Post Judgement interest.  Affirmed trial court order to reduce and abate interest on a 1995 judgment pursuant to Kentucky Rules of Civil Procedure (CR) 60.
Fox Trot Properties LLC v. DLX, Inc.

616. Affirmed circuit court’s dismissal of action seeking damages for personal injury, landlord-tenant law violations, and violation of the consumer protection act.
Joiner v. Tran & P.  Properties, LLC

628.  Reversed Order and Judgment of the Marion Circuit Court reversing KUIC’s decision to deny benefits to former CMA employee William Anthony Hourigan.
Commonwealth of Kentucky Transportation Cabinet v. Hourigan

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

613.  Affirmed summary judgment from the Pulaski Circuit Court dismissing claims of abuse of process she asserted against community association
Weatherly v. Lake Cumberland Community Association.

615.  Reversed trial court’s ruling in medical malpractice action that injured plaintiff lacked sufficient proof of causation
Shackleford v. Dr. Paul Wesley Lewis MD

620.  Malicious prosecution and probable cause.
Lickteig v. Schwab

623.  Malicious prosecution.  Reversed and remanded summary judgement dismissing claims.  Not a CR 12.03 but rather Summary Judgment distinguished
McKinney v. Coleman

630.  Bad Faith.  Affirmed trial court’s dismissal of third party bad faith claim against insurer.
Lemaster v. Medical Protective Ins. Services

632.  Immunity.  Affirm dismissal of claims that defendant’s were immune from suit under the doctrine of qualified official immunity
Romans v. Johnson

MNT07212017

 

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.

All decisions regardless of publication are posted and can be read, but those decisions designated not for publication cannot be cited as legal authority.  See, KRCP 76.28(4)(c)(“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.”)

You will find the complete list of this week’s decisions below with number, names of parties, case number, lower court (eg., county), etc. with a hot link to the full text of the decision.  Please note that you will have to check Case Information for each decision for finality, amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.

COA: July 14, 2017 Court of Appeals Decisions (Minutes)

Nos. 588-604: 17 Decisions with NO decisions designated 'to be published' by Michael Stevens

NO PUBLISHED DECISIONS:

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

594.  Arbitration, nursing home, and power of attorney. Reversed trial court compelling arbitration applying Kindred Nursing Centers Ltd. Partnership v. Clark, 137 S. Ct. 1421, 1429 (2017)
Pine Tree Villa LLC v. Smith

MNT07142017

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.

All decisions regardless of publication are posted and can be read, but those decisions designated not for publication cannot be cited as legal authority.  See, KRCP 76.28(4)(c)(“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.”)

You will find the complete list of this week’s decisions below with number, names of parties, case number, lower court (eg., county), etc. with a hot link to the full text of the decision.  Please note that you will have to check Case Information for each decision for finality, amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.