COA: Jan. 20, 2017 Court of Appeals Decisions (Minutes) (70 through 102 with 6 decisions designated to be published)

Published (Dismissing EmploymentyDiscrimination Claim.; Legal Complaint against Criminal Defense Attorney; DUI and motion to suppress; Venue for child's schooling; Retirement disability benefits from state) Not to be published (limiting plaintiff's expert testimony in med-mal case; attorney misconduct at trial by references; qualified immunity in child's death at phy ed class at school; legal services contracty examned)

The Court of Appeals posted  33 decisions on Jan. 20, 2017, numbered  70-102 with 6 decisions designated for publication.

Published Decisions (with topic and county indicated) for Jan. 20, 2017

86.  Pro se Appeal.  Summary Judgment Dismissing EmploymentyDiscrimination Claim.
Tucker v. Bluegrass Regional Mental Health Mental Health Retardation Board
Affirming Fayette Cir. Ct.

87.  Domestic Relations.  Custody and Child Support of Biological Child with regard to non-parent.
Jones v. Jones
Reversing and Remanding (Rowan)

93.  Legal Complaint against Criminal Defense Attorney with DPA and issues of immunity
Jacobi v. Holbert
Affirming (Hardin)

94.  DUI Conviction.  Motion to Suppress.
O’Daniel v. Commonwealth of Kentucky 
Affirming (Lyon)

95.  State Government Retirement Disability Benefits.
Bartrum v. Kentucky Retirement Systems
Affirming (Franklin)

97.   Divorce.  Appropriate Venue for Child’s Schooling.
Keaton v. Keith
Vacating and Remanding (Meade)

Selected not to be published decisions – torts, insurance and civil:

70.  Medical negligence.  Abuse of discretion by judge in limiting expert testimony for plaintiff.
Ries v. Dr. Richard C. Oliphant
COA Not to Be Published Opinion Reversing and remanding (Jefferson)

82.  Trial.  Claims of attorney misconduct in referencing to admissible evidence etc.
Hughes v. Martin and GEICO Ins. Co.
COA Not to Be Published Opinion Affirming (Kenton)

90.  Qualified official immunity on claim for child’s death during physical fitness class at school
Richardson v. Queen
COA Not to Be Published Opinion  Affirming (Jessamine)

91.  Legal services contract.
Wobbles v. Preferred Automotive Sales, Inc.
COA Not to Be Published Opinion Affirming in part, vacating in part and remanding (Fayette)


All decisions regardless of publication are posted and can be read, but those decisions designated not for publication cannot be cited as legal authority.  See, KRCP 76.28(4)(c)(“Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after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.

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: Jan.13, 2017 Court of Appeals Decisions (Minutes) (24 through 69 with 7 decisions designated to be published)

Published: Accrual date for SOL; judicial discretion on post-judgment interest; Medical products liability and federal preemption; Open Records.  Must produce suitably redacted copies of final tax rulings; Pre-Injury release.  Signed before church trip; Retirement  Benefits Calculation when incentive pay involved.; Revoking Shock Probation; Not to be published (POA & arbitration; enforcing settlement from agreed judgment; calculating SOL accrual date; qualified official immunity and childcare; med negligence and jury instrucitons; foreign judgment)

The Court of Appeals posted  47 decisions on Jan. 13, 2017, numbered  1 through 23 with 6 decisions designated for publication.

Published Decisions (with topic and county indicated)

30.  Statute of Limitations.  Calculating the date for accrual “the date when the cause of action was, or reasonably should have been, discovered”
Victory Community Bank v. Lionel Socol
Court of Appeals Published Opinion AFFIRMING (Kenton County)

32.  Post-Judgment Interest. Judicial discretion.
Hazel Enterprises, LLC  v. Scott Alan Ray
Court of Appeals Published Opinion AFFIRMING (Warren)

38.  Medical products liability and federal preemption.
Cales v. Baptist Healthcare System, Inc.
Court of Appeals Published Opinion AFFIRMING (Christian)

39.  Open Records.  Must produce suitably redacted copies of final tax rulings
Finance & Administration Cabinet v. Sommer
Court of Appeals Published Opinion AFFIRMING in part and REVERSING and REMANDING  (Fayette)

40.  Pre-Injury release.  Signed before church trip.
Grego v. Jenkins
Court of Appeals Published Opinion REVERSING & REMANDING (Jefferson)

Because the law disfavors such contractual provisions, “[t]he wording of the release must be ‘so clear and understandable that an ordinarily prudent and knowledgeable party to it will know what he or she is contracting away; it must be unmistakable.’”

Specifically,  a preinjury release will be upheld only if:

(1) it explicitly expresses an intention to exonerate by using the word ‘negligence;’ or
(2) it clearly and specifically indicates an intent to release a party from liability for a personal injury caused by that party’s own conduct; or
(3) protection against negligence is the only reasonable construction of the contract language; or
(4) the hazard experienced was clearly within the contemplation of the provision.

No special treatment for churches/charities, and just need to have clear exculpatory language in release.

43.  Retirement  Benefits Calculation when incentive pay involved.
Smith v. Teachers Retirement System
Court of Appeals Published Opinion AFFIRMING (Franklin)

54.  Criminal Law.  Revoking Shock Probation.
Flaugher v. Commonwealth of Kentucky
Court of Appeals Published Opinion VACATING (Mason)

Selected not to be published decisions:

24.  Power of attorney and arbitration clause at nursing home.  Not specifically granted in POA.
Kindred Nursing Centers Limited Partnership v. Powell, Est. of Virginia Wells
COA Not to Be Published Opinion AFFIRMING (Marshall)

25.  Agreed judgment, settlement agreement, and compliance.
McCarthy v.  Kimberly Maius-Streutker, Adm’x Est. of Nora L. Minning
COA Not to Be Published Opinion AFFIRMING (Grant)

26.  POA did not confer authority to agree to mandatory arbitration
Kindred Nursing Centers v. Withers
COA Not to Be Published Opinion AFFIRMING (Hardin)

28.  SOL.  Calculating date knew or should have known.
Russell v. Gundelly, Dr.
COA Not to Be Published Opinion AFFIRMING (Fayette)

36.  Torts.  Federal claims for deprivation of constitutional rights under the color of state law pursuant to 42 U.S.C.2 §1983.  Proof of legal duty.
Hurst v. Caldwell
COA Not to Be Published Opinion AFFIRMING Summary Judgment (Mercer)

41.  Statute of Limitations.  Time barred fraud claim.
Dattil0 v. Collins (link to decision ‘fixed’)
COA Not to Be Published Opinion AFFIRMING (Christian)

47.  Qualified official immunity.  Childcare providers.
Nelson County Board of Education v. Newton
COA Not to Be Published Opinion AFFIRMING, in part, VACATING in part, and REMANDING (Nelson)

53.  Workers Comp, Past-due benefits, and attorney fees.
Memorial Hospital v. Morgan
COA Not to Be Published Opinion (Clay)

62. Medical Negligence.  Jury instructions.
Fonts v. Dr. Bux 
COA Not to Be Published Opinion AFFIRMING (Boyle)

64.  Foreign judgment.  Jurisdiction.  In personam.
Mitchell v. Leed HR, LLC
COA Not to Be Published Opinion VACATING and REMANDING (Jefferson)


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.

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.

MNT01132017

 

COA: Jan. 6, 2017 Court of Appeals Decisions (Minutes) (1 through 23 with 6 decisions designated to be published)

Qualified Official Immunity; Premises Liability, Business Parking Lot; Nursing Home Arbitration in Wrongful Death Claim; Wrongful Death, 911 Call; Medical Negligence; Peremptory Challenges

The Court of Appeals posted  23 decisions this week, numbered  1 through 23 with 6 decisions designated for publication.

Published Decisions:

Selected Not to Be Published Decisions (Torts, Insurance, Civil)

2.  Peremptory Challenges
Cayce v. Sumner
Court of Appeals Published Opinion AFFIRMING (Christian)

20.  Medical Negligence.
Hall v. Harreld
COA Not to Be Published Opinion AFFIRMING (Jefferson)


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.

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.

MNT01062017

 

 

COA: January 2017 Oral Argument Calendar for Court of Appeals

Dates: Jan. 27 & 27, 2017

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.

Some issues for the month of January 2017 are:

*1. Property restrictions on rental property-did the trial court err by finding the weekly and nightly rentals of property violated the applicable property restrictions. 2. Permanent injunction entered. 3. Did circuit court improperly dismiss harassment claim

*Appeal from grant of summary judgment. Did the court err in holding that Appellant’s former law firm was his alter-ego and that Appellant remained in control of the entity?

*Appeal from Circuit Court order reversing BOL’s penalty as issued by the BOL. Issue is whether BOL erred failing to grant a hearing and arguments as directed by Supreme Court in remanding the matter on its first appeal.

* Whether the trial court erred when it granted summary judgment in favor of Appellees and dismissed Appellant’s claim that tAppellees violated the garnishment order served each of them.

* Appeal of circuit court order granting summary judgment to Appellees in an action for damages cause to Appellant while shopping for a horse.

* Whether the trial court properly overruled the Appellant’s motion for summary judgment based on the “up the Ladder” immunity which the Appellant claims.

* Whether circuit court properly rendered summary judgment interpreting a reservation in a deed as including oil and gas mineral rights.

*  Whether circuit court erred by dismissing appellant’s claim as time-barred.

January2017

COA: December 22, 2016 Court of Appeals Decisions (Minutes)(1021 to 1047)(6 opinions designated to be published)

PUBLISHED CASES -- legal malpractice claim not tolled pending collateral attack on criminal conviction; UIM and choice of law case; tort of negligent misrepresentation case; retroactive application of criminal statute; de facto custody and joint custody addressed in same case; appellant response to show cause to name indispensable party on appeal not good enough. NOT PUBLISHED CASES re Torts --- Challenges for cause, preserving error, and using perempts; long term care claims for failure to give notice of moving patient; newspaper delivery car and real owner plus employee vs independent contractor issues.

The Court of Appeals posted  27 decisions this week, numbered 1021 through 1047 with 6 decisions designated for publication.

Published Court of Appeals Decisions

Here are the links to the full text of each published case for this week with a short synopsis or topic listed for each.

1023.   Torts.  Legal Malpractice.  Statute of Limitations and Tolling.
Applegate v. Dickman Law Offices, PSC
Court of Appeals Published Opinion AFFIRMING Kenton Cir. Ct.
Affirmed trial court’s dismissal of legal malpractice claim against his lawyer following criminal representation with court holding that the collateral attack on the criminal conviction does not toll the statute of limitations of the civil action for malpractice.

1025.  Insurance.  Choice of law.  UIM Coverages.
Lacrosse v. Owners Insurance Company
Court of Appeals Published Opinion AFFIRMING IN PART, REVERSING AND REMANDING Calloway Cir. Ct.

VANMETER, JUDGE: Carl M. LaCrosse appeals from the Calloway Circuit Court’s order granting summary judgment in favor of Owners Insurance Company (“Owners”) and Progressive Northern Insurance Company (“Progressive”). Owners cross-appeals. In this case we must decide whether, under Illinois law, the failure of an insurance company to provide evidence of a written rejection of underinsured motorist (“UIM”) coverage in an amount equal to the bodily injury liability limits renders the policy declaration amounts of UIM coverage equal to the declared liability limits under 215 ILCS1 5/143a-2. We must also decide whether Kentucky public policy prohibits the set off of UIM benefits with collateral sources, including liability coverage from the tortfeasor, workers’ compensation benefits, and no-fault benefits. For the following reasons, we affirm in part, reverse in part and remand.

1032.  Torts.  Negligent Misrepresentation.
Wilburn, Inc. v. K. Norman Berry Associates, Architects, PLLC
Court of Appeals Published Opinion REVERSING AND REMANDING Oldham Cir. Ct. Summary Judgment in favor of Norman Berry Associates

The issues presented are: (1) whether Wilburn can maintain a claim for negligent misrepresentation based on allegations that KNBA failed to properly prepare plans and specifications, and otherwise obtain permit approvals; (2) whether Wilburn’s claim for purely economic loss against KNBA is barred by the economic loss rule; and (3) whether change orders and an application for final payment approval preclude Wilburn’s claim against KNBA based on waiver or release. We conclude Wilburn has alleged facts sufficient to sustain a claim for negligent misrepresentation and that the economic loss rule does not apply. We further hold that Wilburn’s claim is not barred based on waiver or release.

1037.  Criminal Law.  Retroactive application of change in law.
Pomeroy v. Commonwealth of Kentucky
Court of Appeals Published Opinion REVERSING AND REMANDING Campbell Cir Ct

Ryan Pomeroy was charged with first-degree possession of a controlled substance and possession of drug paraphernalia for acts committed on December 21, 2014. He filed a motion to dismiss the indictment on the basis of Kentucky Revised Statutes (KRS) 218A.133(2), effective March 25, 2015, which provides that a person shall not be charged with or prosecuted for possession of a controlled substance or possession of drug paraphernalia when medical attention is required to assist with a drug overdose. The trial court denied the motion ruling that KRS 218A.133(2) could not be retroactively applied.

The fact that the controlled substances and drug paraphernalia were found while the officer was responding to a call for medical assistance for Pomeroy’s drug overdose is not a defense to the charges but precludes prosecution on the charges. The statute creates “a new exception to the general rule that trial courts may not dismiss indictments prior to trial.” Id. at 753. By stating that “[a] person shall not be charged with or prosecuted for a criminal offense prohibiting the possession of a controlled substance or the possession of drug paraphernalia[,]” KRS 218A.133(2), the General Assembly created an immunity from prosecution. It is a “new procedural bar to prosecution” and one that applies retroactively. Rodgers, 285 S.W.3d at 753.

REVERSED and REMANDED.

1044.  Family Law.  De facto custodian, joint custody. Interlocutory appeal.
Cherry v. Carroll
Court of Appeals Published Opinion REVERSING and REMANDING  Wayne Cir Ct.

NICKELL, JUDGE: Charles Cherry, the biological father of three minor boys, appeals the Wayne Circuit Court’s designation of Stacy Randall Carroll, the children’s maternal grandfather, as de facto custodian and the award of joint custody to him and Carroll. This appeal presents two questions. Whether an award of de facto custodian status is interlocutory and whether a court may designate a person a de facto custodian solely because the Cabinet for Health and Family Services (CHFS) placed a child with him. For reasons expressed below, we deem this appeal properly before us and hold the trial court erroneously designated Carroll a de facto custodian when the three children, all over the age of three—had lived with him less than seven months rather than the year required by KRS2 403.270(1)(a). Reversal and remand for an appropriate order are necessary. [Amanda Taylor is the natural mother of the three minors in this appeal. She is not a party to the appeal and did not appear—neither personally nor by counsel—in the trial court proceedings. As of March 9, 2015, she was in a residential drug recovery program in Lexington, Kentucky, and had rarely seen her sons. She has three other children of whom she does not have custody.]

1047.  Appeals.  Failure to name indispensable party.
Fink v. Fink
Court of Appeals Published Opinion and Order DISMISSING Jefferson Cir Court

VANMETER, JUDGE: On September 15, 2016, this Court directed James Michael Fink, the appellant, to show cause why this appeal should not be dismissed for failing to name an indispensable party to this appeal. On September 30, 2016, James filed a document titled “Appellant’s Motion to Amend Notice of Appeal and Response to the September 15, 2016 Show Cause Order,” and tendered an Amended Notice of Appeal. Elizabeth Fink, the appellee, did not respond to the show cause order. [1 When final disposition of an appeal is made by an “Opinion and Order,” as in this case, the party adversely affected may move for reconsideration as provided by CR 76.38(2) within ten days of entry, but a petition for rehearing is unauthorized. CR 76.32(1).]

After considering James’ response to the show cause order and having been otherwise sufficiently advised, this Court fails to find sufficient cause. The motion to amend the notice of appeal is denied and the appeal is dismissed.

 


Selected Not To Be Published Decisions Dealing with tort, insurance and civil procedure:

1021.  Trial.  Jurors.  Challenges for cause, preserving the objection, and using peremptory challenges.
Jackson v. Roland Wall, CRNA
COA Not to Be Published Opinion AFFIRMING Warren Cir Ct

VANMETER, JUDGE: Patricia and Richard Jackson appeal from a jury trial in the Warren Circuit Court. The Jacksons argue that the several jurors in their trial should have been excused for cause, and that they had to exercise peremptory strikes to excuse those jurors. Because we hold that the Jacksons waived any objection concerning the one juror who sat on the jury, and that their objections concerning the jurors who did not sit on the jury were not preserved, we affirm.

1038.  Torts.  Foreseeability.  Nursing home liability under statute regarding long term patient rights. Summary judgment premature.
Wilson, Adm’trix of the Est. of Chester Gray v. Spring View Health & Rehab Center
COA Not to Be Published Opinion AFFIRMING IN PAERT, REVERSING IN PART, AND REMANDING Grayson Cir Ct.
In case where nursing home resident was being transferred by ambulance for inpatient psychiatric evaluation, she was dropped and injured by the EMTs.  A complaint was filed against the the nursing home (Springview) and the ambulance.  Mr. Gray died later, an estate was opened, and the suit was timely revived.

The court found there was no foreseeability by the nursing home regarding the fall which was a superseding cause which is an issue  of law for the court, and further discovery would not be helpful.

However, the COA agreed that the trial court erred in granting summary judgment on the KRS 216.515 claim regarding patient in long term care facility and their rights and a cause of action for those rights.  Specifically section (4) provides that ”

The resident shall be transferred or discharged only for medical reasons, or his own welfare, or that of the other residents, or for nonpayment, except where prohibited by law or administrative regulation.

Reasonable notice of such action shall be given to the resident and the responsible party or his responsible family member or his guardian.”

Administrative regs also came into play in the analysis.

It was clear that Mr. Gray’s daughter was not given notice.  Other issues raised were:

Mr. Gray’s transfer, that the transfer was unnecessary, and that Mr. Gray was too sick to be transferred.

The COA Believed genuine issues of material fact still exist.

In addition, she alleged the psychiatric evaluation was unnecessary and that Spring View was simply trying to get rid of her father by transferring him to another facility. She presented evidence that other doctors at Spring View had declined to send Mr. Gray for inpatient psychological evaluations. Finally, she alleged Mr. Gray’s health was too fragile to be transferred.

Based on the above, Ms. Wilson’s argument that Spring View violated KRS 216.515 has potential merit. At the very least, there are genuine issues of material fact that preclude summary judgment.

For the foregoing reasons, we affirm the trial court’s grant of summary judgment as it relates to the negligence cause of action. We also reverse the judgment as to the KRS 216.515 issue and remand for further proceedings.

1040.  Wrongful death with nine issues on appeal.  Transfer of title and ownership of auto purchased at auction and from dealer with issues of applicability of liability insurance.  Newspaper delivery, employee or independent contractor.
Charles Armstrong, Adm’or Estate of Craig Armstrong v. Martin Cadillac, Inc.
COA Not to Be Published Opinion AFFIRMING IN PART, AND REVERSING AND REMANDING IN PART Warren Cir Ct summary judgment in case of wrongful death of passenger in newspaper delivery’s car running a stop sign. Driver and passenger both killed.  Settled for $1,000,000 with estate of negligent driver.”Charles Armstrong, the administrator of Craig Armstrong’s estate, appeals summary judgment motions entered in his wrongful death lawsuit.  Jonathan Elmore delivered newspapers to earn money. He had a contract with News Publishing, LLC (“News Publishing”) to deliver the Daily News. On April 5, 2014, Elmore and Craig Armstrong were in the same vehicle delivering newspapers. Elmore was driving his 1996 Chevrolet Cavalier when it appears he ran a stop sign and pulled into the path of another vehicle that had the right of way. The collision killed Elmore and Armstrong. Armstrong’s father, as administrator of the estate, filed wrongful death claims against multiple defendants, including the current appellees.”

“Three issues were principally before us. The first issue concerned who maintained ownership of Elmore’s vehicle. On that issue, we reverse and remand the trial court’s order granting summary judgment to Martin Cadillac and Travelers for further proceedings concerning whether Martin Cadillac and/or DeWalt Auto complied with the promptness requirement of KRS 186A.215(3) and Ellis v. Browning Pontiac-Chevrolet-GMC Truck-Geo, Inc., 125 S.W.3d 306 (Ky. App. 2003).

The second issue concerned the bad faith claim against Travelers. Having found the legal issue underlying Travelers refusal to negotiate is not a novel issue nor is it debatable that dealers must strictly comply with the statutes, and having reversed and remanded for further factual development on the promptness requirement of KRS 186A.215(3), we also reverse and remand the trial court’s grant of summary judgment for Travelers on the bad faith claim. Though we reverse and remand, our Opinion should not be construed as addressing the merits of the claim.

The final issue concerned the respondeat superior liability claim against News Publishing. We find the trial court correctly found that Elmore was an independent contractor. Accordingly, we affirm the trial court’s summary judgment order in News Publishing’s favor.

Therefore, for the foregoing reasons we affirm in part and reverse and remand in part.”


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.

For links to all our posts on the minutes of the Court of Appeals, then click here.  Click here for AOC minutes for this week.

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

MNT12222016

COA: December 16, 2016 Court of Appeals Decisions (Minutes)(994 – 1020)(2 opinions designated to be published)

Published --- knock and talk outside cop's jurisdiction affirmed; qualified immunity applied to jailer and deputies in death of prisoner from ingested drugs. Not to be published -- Malicious prosecution claim; fraud and CPA claim from auto sale; workers comp and coming and going rule

The Court of Appeals posted  16 decisions this week, numbered 994 through 1020 with 2 decisions designated for publication.

Published Court of Appeals Decisions

Here are the links to the full text of each published case for this week with a short synopsis or topic listed for each.  

998.   Criminal Law.  Criminal Procedure.
Fischer v. Commonwealth of Kentucky 
Court of Appeals Published Opinion AFFIRMING Fayette Cir. Ct.
VANMETER, JUDGE: Dwight Edward Fischer appeals the Fayette Circuit Court’s denial of his motion to suppress statements made to Lexington police detectives outside their jurisdiction during the course of a knock and talk. For the following reasons, we affirm.

1001.  Torts.  Government immunity.  Qualified immunity.
Peterson v. Dunbar  (note… link in actual minutes was bad. this one has been fixed).
Court of Appeals Published Opinion AFFIRMING Russell Cir. Ct.
ACREE, JUDGE: The issue we must decide in this case is whether the Russell Circuit Court erred in granting summary judgment in favor of Bobby Dunbar, the Russell County Jailer, and his deputies who were on duty when Peggy McWhorter was admitted to the Russell County Detention Center and died of an overdose due to drugs she had ingested prior to her reporting to the detention center. We hold the circuit court did not err and therefore affirm.


Selected Not To Be Published Decisions Dealing with tort, insurance and civil procedure:

996.  Torts. Malicious Prosecution.
Williams v Cline
COA Not to Be Published Opinion AFFIRMING Rowan Cir Ct.  Summary Judgment dismissing malicious prosecution claims
JONES, JUDGE: The Appellant, Trisha Ann Williams (“Williams”), appeals from the August 26, 2014, order of the Rowan Circuit Court dismissing her claims of negligence and malicious prosecution against Appellees, Randy Cline and Keith McCormick. After a careful review of the record and applicable law, we affirm.

1005.  Torts. Fraudulent misrepresentation claim, Consumer Protection Act claims arising from auto sale.
Webb v. Dan Cummins Chevrolet-Buick, Inc.
COA Not to Be Published Opinion AFFIRMING Bourbon Cir. Ct.
JONES, JUDGE: Appellant, Robert Webb, appeals from the Bourbon Circuit Court’s order granting the motion filed by Appellee, Dan Cummins Chevrolet- Buick, for dismissal and summary judgment. For the reasons set forth below, we AFFIRM.

1011.  Pro se appeal from criminal defendant arising from contract hiring forensic examination in attempted murder case.
Rank v. Bobby Miller, M.D.
COA Not to Be Published Opinion AFFIRMING Kenton Cir Ct. Summary Dismissal of contract and fraud claims
KRAMER, CHIEF JUDGE: Douglas Rank, pro se, appeals the decision of the Kenton Circuit Court to summarily dismiss his breach of contract and fraud claims against appellee, Bobby Miller. Upon review, we affirm.

1020.  Workers Compensation.  Course of Employment, coming and going rule, and automobile collision
Caring People Services LLC v. Gray
COA Not to Be Published Opinion AFFIRMING WCB
JONES, JUDGE: This appeal arises out of an opinion issued by Kentucky’s Workers’ Compensation Board (“Board”) affirming an award of benefits to the Appellee, Mary Gray. The Appellant, Caring People Service, LLC (“Caring People”), contends that the Board erred because Gray’s injury occurred while she was in her personal vehicle during her commute from her home to her regular worksite, and therefore, is not work-related. Having reviewed the record in conjunction with the applicable legal authorities, we affirm.


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.

For links to all our posts on the minutes of the Court of Appeals, then click here.  Click here for AOC minutes for this week.

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

MNT12162016

COA: December 9, 2016 Court of Appeals Decisions (Minutes)(978-993)(2 designated to be published

The Court of Appeals posted  16 decisions this week, numbered 978 through 993 with 2 decisions designated for publication.

Published Court of Appeals Decisions

Here are the links to the full text of each published case for this week with a short synopsis or topic listed for each.  

982.Employment.  Police officers claims  they were entitled to education incentive pay as part of employment prior to their retirement were denied.
Dearborn v. City of Frankfort
Court of Appeals Published Opinion AFFIRMING Franklin Cir. Ct.

992 Criminal Law.  Unrepresented DUI district court defendant was properly advised of her constitutional rights prior to unconditional guilty plea and deal.
Mullakandov v. Commonwealth of Kentucky 
Court of Appeals Published Opinion AFFIRMING Logan Cir. Ct.


Selected Not To Be Published Decisions Dealing with tort, insurance and civil procedure:

None this week.


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 weeks 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.

For links to all our posts on the minutes of the Court of Appeals, then click here.  Click here for AOC minutes for this week.

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

mnt12092016

COA: December 2, 2016 Court of Appeals Decisions (Minutes)(956 to 977)(3 designated to be published

The Court of Appeals posted 22 decisions this week, numbered 956 through 977 with 3 cases designated for publication.

Published Court of Appeals Decisions

Here are the links to the full text of each published case for this week with a short synopsis or topic listed for each.  

957.   Business Litigation.  Directed Verdict, JNOV (Fraud, Tortious Interference,  Breach of Contract, Breach of Good Faith and Fair Dealing, Promissory Estoppel).  Jury Instructions.  Inconsistent Jury Verdict.  Punitive.
PBI Bank, Inc. v. Signature Point KTC, LLC
Court of Appeals Published Opinion AFFIRMING Jefferson Cir. Ct. Judgement from Jury Verdict
This is a detailed decision on a multitude of issues.  If this is what you do, then consider checking it out.  The case has headings, too!

966.  Family Law.  Assumed Debt, Bankruptcy, and “fair contemplation” rendered debt not dischargeable
Trimble v. Trimble
Court of Appeals Published Opinion AFFIRMING  Floyd Cir. Ct.

James Thomas Trimble (James) appeals from an order by the Floyd Family Court requiring him to pay his ex-wife Allison Trimble (Allison) for a credit card debt that she assumed for him during their marriage. He argues that the trial court erred because his debt to Allison was dischargeable in bankruptcy. Because we hold that the “fair contemplation” test applied to James’ debt, such that James’ debt was not dischargeable, we affirm.

972.   Criminal Law.
Montgomery v. Commonwealth of Kentucky 
Court of Appeals Published Opinion AFFIRMING IN PART, REVERSING IN PART, AND REMANDING Morgan Cir. Ct.

Montgomery argues three issues before this Court, the first of which is that the trial court should have granted a directed verdict of acquittal on all charges. In particular, Montgomery contends that Trooper Bolin did not suffer an injury and there was no credible attempt to injure him, as required for the assault conviction; the trooper was never in substantial danger of physical injury from Montgomery’s actions, as required for wanton endangerment; and Montgomery’s minor movements upon being handcuffed were not sufficient to charge him with resisting arrest.


Selected Not To Be Published Decisions Dealing with tort, insurance and civil procedure:

960.  Pro se defamation suit appealed.
Dinghy v. WKYT 27 News First
COA Not to Be Published Opinion AFFIRMING Jefferson Cir. Ct.

968.  Nursing Home Arbitration and POA.
New Heritage Hall Health & Rehabilitation Center, LLC v. Coffman, Adm’or of Est. of Charles Coffman
COA Not to Be Published Opinion AFFIRMING Anderson Cir. Ct.

970.  Homeowners Insurance Coverage.
Estate of Mary Mae Price v. Shelter Mutual Ins. Co.
COA Not to Be Published Opinion AFFIRMING Pulaski Cir. Ct.

mnt12022016

COA: December 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. 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.

Some issues for the month of December 2016 are:

  • Appeal from denial of prison officials’ motion for summary judgment on claims arising from inmate’s injury in prison workshop. Whether officials were entitled to qualified official immunity; whether they showed deliberate indifference and whether this vitiates immunity; whether officials’ duties were ministerial or discretionary; whether there were genuine issues of material fact regarding officials’ adherence to prison policies. 12/5
  • Administrative Law: Whether the circuit court erred when it reversed a hearing officer for the lexington Fayette Urban County Human Rights decision regarding whether appellants were discriminated against on a protected status by a public accommodation. 12/13
  • Whether circuit court erred by reversing the Board of Tax Appeals’ decision concerning the tax exempt status of appellants’ retirement home.  12/13
  • Whether circuit court erred by granting judgment in favor of appellees and denying homeowners’ association the right to enforce the restrictive covenants. 12/13
december2016

COA: November 23, 2016 Court of Appeals Decisions (Minutes)(939-955)(6 to be published)

Published decisions addressing post-McIntosh premises liability; malicious prosecution and punitive damages; undue influence in executing documents nearly 20 years after the divorce; . SELECTED NOT TO BE PUBLISHED CASES: Liberty Mutual denied million dollar equitable subrogation claim by agency that failed to list truck in fleet policy later involved in collision; son who moved out, living with girlfriend, not in college and more does not make the cut as a "resident relative"

The Court of Appeals posted 17 decisions this week, numbered 939 through 955 with 6 cases designated for publication.

Interesting cases in the tort and insurance areas for this week include:

  • Another opinion addressing McIntosh and the subsequent decisions by the Supreme Court on premises liability.  Focusing this time on duty to warn vs. foreseeability with the latter being the controlling point in reversing and remanding Judge Burress’s summary judgment dismissal.
  • This time COA affirmed Judge Burress in a malicious prosecution case with punitive damages awarded.
  •  A divorced couple find themselves back in litigation when ex-husband sues ex-wife alleging that more than two decades after their divorce she unduly influenced him to: execute deeds conveying to her a half-interest in three pieces of property he owned individually; name her as his Attorney-in-Fact pursuant to a Power of Attorney; and, add her name to his single account at the Fort Knox Federal Credit Union from which she transferred more than $21,000 into her own account.
  • Insurance agency left off a Peterbilt truck on a fleet policy with Liberty Mutual with Liberty paying its $1,000,000 limits under the policy but then looking to the agency for equitable subrogation for NOT listing and insuring the truck in the collision.  COA said no to that one.
  • An adult son who (1) moved out of his parents’ home prior to the collision, (2) was working full-time, (3) was not in school, and (4) was renting and residing in an apartment with his girlfriend at the time of the accident did not qualify as a “resident relative” and was not listed as a named insured under the policy.  COA said no to that one too.

Published Court of Appeals Decisions

Here are the links to the full text of each published case for this week with a short synopsis or topic listed for each.  CLICK ON THE “CONTINUE READING” BELOW THE LINE!