COA: November 3, 2017 Court of Appeals Decisions (Minutes)

Nos. 929-941: 13Decisions Posted with a 2 decisions designated 'to be published' with links to full text of each decision

PUBLISHED DECISIONS:

937.  Criminal Law.  Due Process and Missing Evidence Instruction.
Anderson v. Commonwealth of Kentucky
Affirmed trial court order denying missing evidence instruction in second trial regarding evidence destroyed at conclusion of first trial.  Allowed photographs.
[T]o make out a due process violation where evidence has been destroyed a defendant must show (1) the Commonwealth acted in bad faith in destroying the evidence; (2) the potential exculpatory value of the evidence was apparent before its destruction; and (3) the evidence destroyed was, at least somewhat, irreplaceable.

939.  Child Support Arrearages. Laches and Estoppel by Acquiescence.
Dixon v. Dixon
Affirmed family court ruling of no arrearages.
The doctrine of laches is based in equity and premised on the question of whether a party has failed or neglected to assert their rights within a reasonable period of time where the delay has acted to the disadvantage of the other party. Wigginton v. Com. ex rel. Caldwell, 760 S.W.2d 885, 887 (Ky. App. 1988). The court found that Karen had failed to consistently pursue her claim. The court based this finding on the court’s order of July 28, 2014, that no arrearages were due noting that Karen did not object; the fact that no request for a hearing on the issue was made until almost two years after the original motion on the issue; and that she failed to bring the issue up until more than a year after Charles stopped making the mortgage payments on the marital residence.

While the court applied the doctrine of laches to this case, we find that the facts of this case more fairly fit an estoppel by acquiescence, but result in the same outcome based upon the same facts. The doctrine of estoppel by acquiescence is applied to transactions in which it would be unconscionable to permit a person to maintain a position which is inconsistent with one in which he has previously acquiesced. Sparks v. Trustguard Ins. Co., 389 S.W.3d 121, 126-27 (Ky. App. 2012).

Selected cases that were not designated for publication in tort, insurance and civil law. None.

929.  Multiple claims and claimants against Louisville Police Detective.  Qualified Official Immunity.
Washington v. Crystal Marlowe

The parties should not misconstrue this Opinion as deciding Marlowe’s ultimate liability upon the relevant underlying claims. To maintain an actionable negligence claim, the plaintiff must demonstrate duty, breach, causation, and injury. Wright v. House of Imports, Inc., 381 S.W.3d 209 (Ky. 2012). This Opinion only addresses with the elements of duty and breach in connection with qualified official immunity. Upon remand, in order for claimants to prevail upon their claims:

[T]here must be a causally related “violation of a constitutional, statutory, or other clearly established right” of the complainant. Id. It is these causally related violations or acts which are measured against the standards of discretionary or ministerial duties, not the distant myriad acts or omissions that one could logically construct to have preceded them. “[I]f one retreats far enough from a … violation [, a distant act or omission] can be identified behind almost any such harm inflicted  . . . . At the very least there must be an affirmative link between [the act or omission] and the . . . violation alleged.” City of Oklahoma City v. Tuttle, 471 U.S. 808, 823, 105 S. Ct. 2427, 2436, 85 L. Ed. 2d 791 (1985).

Sloas, 201 S.W.3d at 476.

 

938.  Default Judgement.  Dismissal for Lack of Prosecution.
Price v. Norrington
Affirmed denial of default judgment and dismissed for lack of prosecution.

MNT11032017

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COA: October 27, 2017 Court of Appeals Decisions (Minutes)

Nos. 910-928: 19 Decisions Posted with a 24 decisions designated 'to be published' with links to full text of each decision

PUBLISHED DECISIONS:

913.  Family Law. Held family court erred in denying motion to continue the trial and reverse and remand.
Deleo v. Deleo

914.  Criminal Law. Held KRS 161.190, a Kentucky statute addressing teacher abuse, to be unconstitutional.
Masters v. Commonwealth of Kentucky

926.  Criminal Law.  Affirmed dismissal of petition for declarations of rights on claim for education credit on sentence.
Meacham v. Department of Corrections

927.  Criminal Law.  Trial court erred on voiding pretrial diversion.
Burnett v. Commonwealth of Kentucky

Selected cases that were not designated for publication in tort, insurance and civil law. None.

911.  Torts.  Affirmed summary judgment dismissing of claims against manufacturer who was successor in interest of company that made the ladder on claim it was defective ladder.
Whiteman v. Werner Company

919.  Piercing the corporate veil.
Albakri v. A&M Oil Co. Inc.

 

MNT10272017

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: October 20, 2017 Court of Appeals Decisions (Minutes)

Nos. 890-909: 20 Decisions Posted with a 2 decisions designated 'to be published' with links to full text of each decision

PUBLISHED DECISIONS:

895.  Revenue & Taxation
Fayette County Clerk v. Kings Right LLC
Opinion Reversing and Remanding ruling that KY Board of Tax Appeals  erred in upholding Appellant’s refusal to refund the purchase price of certificates of delinquency to Appellees, King’s Right, LLC and Dot Capital Investments, LLC.

903.  Business Agreement.  LLC regarding computer analysis of thoroughbred horses.  Dispute developed over source codes and terms.
The Mostert Group LLC v.  PaulMostert

Selected cases that were not designated for publication in tort, insurance and civil law. None.

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.

MNT10202017

COA: October 13, 2017 Court of Appeals Decisions (Minutes)

Nos. 861-889: 29 Decisions Posted with a 6 decisions designated 'to be published' with links to full text of each decision

PUBLISHED DECISIONS:

866.  Medical Negligence.  Expert Proof.  Res ipsa loquitur
Estate of Chris Chamis v. Ashland Hospital Corporation d/b/a King’s Daughters Medical Center
Affirmed summary judgment in favor of hospital finding the res ipsa loquitur doctrine did not apply and eliminating the need for an expert witness to testify as to the failure of bed rails to establish the hospital’s expected standard of care, breach thereof and resulting injury.

868.
Murrell v. Kentucky Parole Board

880.  Government Pensions
Marango v. Kentucky Retirement Systems

884.  Workers Compensation
First Class Services v. Hensley

887. Criminal Law.
Commonwealth of Kentucky v. Donald Adams

888. Workers Compensation.
McCoy Elkhorn Coal Corp, Insolvent Employer v. Sargent

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

862. Juror Excusal.  Experts. Instructions.  Residents’ Rights Act.
Estate of Joseph Stamper v. Berea Area Development LLC
Jerry Stamper, as Administrator of the Estate of Joseph Stamper, deceased (the Estate), appeals from a judgment of the Madison Circuit Court confirming a jury verdict in favor of Berea Area Development, LLC, d/b/a The Terrace Nursing and Rehabilitation Facility (the Terrace). The Estate argues that the trial court abused its discretion by denying its motion to excuse two potential jurors for cause and by excluding a portion of its expert’s testimony. We find no abuse of discretion on either issue. The Estate further argues that the trial court erred by failing to instruct the jury on the separate duties arising under the Residents’ Rights Act. Based on the recent decision of the Kentucky Supreme Court in Overstreet v. Kindred Nursing Centers Ltd. P’ship, 479 S.W.3d 69 (Ky. 2015), we conclude that the statutory duties merely involve a legislative codification of the common-law standard of care or do not survive the death of the resident. Since the jury instructions adequately set out the Terrace’s duties and standard of care, the exclusion of specific duties under the Act was at most harmless error. Hence, we affirm.


864.  Torts.  Malicious Prosecution. Abuse of Process, etc.  Elements discussed.
Dearborn Savings Bank v. Hall

871.  Premies Liability.  Open and Obvious and Comparative Negligence.
Rodgers v. Grant County Football Boosters
Reversed and remanded summary judgment dismissing claim arising from fall caused by flower pot near door at bingo hall – factual question for jury.  We conclude that there clearly remain questions of fact as to whether the flower pot constituted an unreasonable risk, the foreseeability of harm created by the flower pot, and whether the Boosters breached its duty of care to maintain the premises in a safe condition for its patrons. Furthermore, even if Rodgers was negligent in some respect, under comparative fault she has the right to determine if there was any negligence on the part of the Boosters that contributed to her injuries, and then to have a jury apportion that fault. Accordingly, summary judgment was improper.

MNT10132017

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

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COA: October 6, 2017 Court of Appeals Decisions (Minutes)

Nos. 833-860: 28 Decisions Posted with a 3 decisions designated 'to be published' with links to full text of each decision

PUBLISHED DECISIONS:

834.   Attorney Fees.
Kincaid v. Johnson, True & Guarnieri LLP
Affirmed amount of attorney fees awarded to law firm, and the manner in which those fees were calculated arising from trust litigation.

841.  Fellow-employee doctrine.  Torts.
Roach v. Wilson
Affirmed. Held fellow-employee immunity under the Workers Comp Act does not apply when an employee causes injury as a result of acts outside the scope and course of employment and there was sufficient evidence to support the jury’s finding that the bus driver was voluntarily intoxicated while operating the school bus involved in the crash.

849.  Home Owners Insurance.  Exclusions.  Water damage.
Comley v. Auto-Owners Insurance Company
Affirming.  Held Comley’s homeowner’s policy did not cover water damage to his house where water main owned and operated by Kentucky American Water Company burst, causing water to enter onto Comley’s land and into the residence, and damaging both his real and personal property.

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

833.  Torts.  Damages.  Admissibility of disability application.
Caschera v. Gladstone
Affirmed trial court’s denial of plaintiff’s motion for direct verdict and negligence per se on liability.  Affirmed ruling admitting disability application and ruled hearsay objection not raised at trial would not be considered on appeal.

844.  Insurance.  No fault.  Examinations under oath and medical examinations.
McGhee v. Allstate Northbrook Indemnity Co.

McGhee’s insurance contract specifically provides that she must authorize Allstate to obtain medical reports and other records pertinent to her claim. It also specifically provides that she may be required to submit to an examination under oath as often as Allstate reasonably requires and to undergo medical examinations by physicians of Allstate’s choosing as often as Allstate reasonably requires.

Under Allstate’s policy provisions, McGhee was required to submit to an examination under oath as a condition precedent to coverage. Instead of denying coverage outright when McGhee refused to cooperate, Allstate attempted to secure the circuit court’s assistance in obtaining information by way of deposition that Allstate reasonably believed was helpful to its claims decision. The circuit court agreed that Allstate was entitled to conduct a reasonable investigation to determine whether McGhee was entitled to receive BRB. Under the circumstances, McGhee’s resistance to Allstate’s efforts was inappropriate under her contract of insurance. The circuit court did not err by concluding that McGhee failed to provide reasonable proof of her claims until ordered to do so by the court. Nor did it err in determining that once she had provided the requisite proof, Allstate agreed promptly to pay the claims. Thus, McGhee asserted no viable claim against Allstate. The circuit court did not err by dismissing the proceedings.

845.  Arbitration.
Kindred Hospitals Limited Partnership v. White
The record does not support the Jefferson Circuit Court’s determination that Sherren lacked contractual capacity when she executed the ADR agreement. Therefore, the presumption of her capacity applied, and we REVERSE.

847.  Qualified Immunity given to detention center employees.
Lee v. Stone

851.  Automobile Insurance.  Coverage for vehicle not yet titled, etc.
Withers v. Kentucky Farm Bureau Mutual Ins. Co.

MNT10062017

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

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COA: September 29, 2017 Court of Appeals Decisions (Minutes)

Nos. 817-832: 16 Decisions Posted with a five decisions designated 'to be published' with links to full text of each decision

PUBLISHED DECISIONS:

818.  Family Law.
Lewis v. Fulkerson
Family court abused its discretion and committed reversible error when it did not allow attorney who drafted the trust instrument in question to testify when determining whether there was an inter vivos gift from the husband/father to wife/motherLaura of the $1,700,000 LRF Trust corpus.

820.  Family Law. Maritial property division affirmed. Remand on visitation.
Miranda v. Miranda

829.
S.(R.) v. Commonwealth of Kentucky, Cabinet for Health and Family Services

831.  Interlocutory Appeal.  Arbitration agreement not waived.
Wellcare Health Ins. of Kentucky, Inc. v. Trigg County Hospital
WellCare Health Insurance Company of Kentucky, Inc., has taken an interlocutory appeal from circuit court order denying its request to enforce an arbitration agreement between it and Trigg County Hospital, Inc. Because we agree that WellCare did not waive its right to invoke or enforce the arbitration agreement and that, accordingly, the circuit court erred as a matter of law in denying the motion to dismiss, we reverse.

832.  Interpersonal Protective Order (IPO). Held the trial court’s findings of fact were clearly erroneous and application of law was flawed, we reverse.
Halloway v. Simmons

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

None.

MNT09292017

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

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SC: September 28, 2017 Decisions of the Supreme Court of Kentucky (Minutes)

Nos. 116-135 with 12 decisions "published"

Some Published Decisions from Sept. 28, 2017:

117.  Immunity. Denial of Summary Judgment. Claim of Governmental Immunity of tort claims.
Board of Trustees  of the Kentucky School Boards Ins. Trust v. Pope

119.  Workers Compensation.  Notice. KRS 342.135. Service of a claim upon an employer.
Uninsured Employers Fund v. Acahua

121.  Nuisance. Trespass. Injunctive Relief. State Law Tort Claims. Preemption.
Brown-Forman  Corporation v. Miller

122.  Open Meetings. Issues include applicability of the KRS 61.810(1)(b) exception regarding “deliberations on the future acquisition . . . of real property” in circumstances involving bidding at public auction.
Board of Commissioners of City of Danville v.  Advocate Communications

Attorney Discipline September 28, 2017:

Court Orders Granting Motions for Discretionary Review – Sept. 20, 2017

  • SAMEENA AZMAT, AS MOTHER AND NEXT FRIEND OF NAUSHER AZMAT V. GEORGE W. BAUER, M.D., III, ET AL.
    2016-SC-000560-DG HARDIN
  •  COMMONWEALTH OF KENTUCKY V. JOHNNIE DOUGLAS
    2017-SC-000024-DG JEFFERSON
  •  BETH LEWIS MAZE, ET AL. V.  BOARD OF DIRECTORS FOR THE COMMONWEALTH POSTSECONDARY EDUCATION PREPAID TUITION TRUST FUND (CUNNINGHAM, J., NOT SITTING.
    2017-SC-000233-DG FRANKLIN
  •  CINDY MUNCIE, ET AL. V. PATRICIA WEISEMAN
    2017-SC-000235-DG OLDHAM
  • PHYLLIS ROACH V. KENTUCKY PAROLE BOARD, ET AL. KENTUCKY BOARD OF MEDICAL  LICENSURE V. JON M. STRAUSS, M.D.
    2017-SC-000260-DG JEFFERSON
  •  KAREN MARTIN DOYLE, N/K/A KAREN MARTIN BRADLEY V. JAMES SAMUEL DOYLE, A/K/A SAM DOYLE
    2017-SC-000358-DGE KNOTT
  •  LAURA FAYE SMITH V. JIMMY HOWARD MCGILL, JR.
    2017-SC-000395-DGE JEFFERSON 

    Court Orders Granting Motions for Discretionary Review – Sept. 21, 2017

  •  THE TRAVELERS INDEMNITY COMPANY V. CHARLES ARMSTRONG, ADMINISTRATOR, ETC. 2017-SC-000041-DG WARRENANDMARTIN CADILLAC, INC., ETC. V.CHARLES ARMSTRONG, ADMINISTRATOR, 2017-SC-000042-DG WARRENMINTON, C.J.; CUNNINGHAM, KELLER, VENTERS, WRIGHT, JJ., AND DAVID ROYSE AND JUSTIN D. CLARK, SPECIAL JUSTICES, SITTING. HUGHES AND VANMETER, JJ., NOT SITTING.

Court Orders Dismissing:

MATTHEW G. BEVIN, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE COMMONWEALTH OF KENTUCKY V.  ANDY BESHEAR, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE COMMONWEALTH OF KENTUCKY

We granted transfer from the Court of Appeals of Governor Matthew G. Bevin’s appeal from the circuit court’s final judgment and grant of permanent injunctive relief. The circuit·court sustained the Attorney challenge to ”’ the Governor’s. authority under Kentucky Revised Statute (KRS) 12.028 to abolish and reorganize the University of Louisville Board of Trustees and permanently enjoined the Governor from implementing the Executive Orders issued June 17, 2016, in connection with his effort. After thorough review of the briefs and an oral argument, we hold that intervening statutory law enacted by the General. Assembly has rendered moot . the legal issues decided by the Circuit court. We dismiss the appeal and.remand the case to the circuit court with directions to dismiss the complaint with prejudice. 

ALL SITTING. ALL CONCUR.

ENTERED: SEPTEMBER 28, 2017. 2016-SC-000642-TG FRANKLIN  TO BE PUBLISHED

MNT092017

 

COA: September 22, 2017 Court of Appeals Decisions (Minutes)

Nos. 798-816: 19 Decisions Posted with a SIX decisions designated 'to be published' with links to full text of each decision

PUBLISHED DECISIONS:

798.  Arbitration.   Nursing home.  Ping v. Beverly Enterprises issue.
GENESIS HEALTHCARE LLC V. ESTATE OF REBA KATHRYN PRICE
Affirmed denial of nursing facility’s motion to compel arbitration since power of attorney contained no valid arbitration provision.

800. Arbitration.   Nursing home.  Ping v. Beverly Enterprises issue.
PREFERRED  CARE PARTNERS V. ESTATE OF JOHN D. CLEMONS
Affirmed denial of motion to arbitrate wrongful death claim against nursing home.  Had all of the legal beneficiaries of the estate executed the arbitration agreement at issue in this case at the time of his admission or during his residency at the nursing home, then the outcome of this case could be different. However, until the Kentucky Supreme Court directs otherwise, we are duty bound to follow existing Kentucky precedent pursuant to Rules of the Supreme Court 1:030(8), and therefore affirm the Powell Circuit Court’s Order denying appellants’ motion to arbitrate the underlying wrongful death claim in this case.

801.  Criminal Law. Double Jeopardy.
Culver v. Commonwealth of Kentucky

805.  Statute of Limitations on personal injury claim against builder for negligent design.  Premises liability against owner and duty of care when not know violation of building codes
Breedlove v. Smith Custom Homes, Inc.
T
here is no evidence that the property owner knew the steps did not comply with the building code based upon the home inspections issuance of the certificate of occupancy, that they created an unsafe condition, or that the steps constituted an unreasonable risk of which Breedlove should have been warned as an invitee.

811.  Criminal Law.  Affirmed suppression of evidence motion.
Jackson v. Commonwealth of Kentucky

815.  Family Law. Termination and adoption. Right to appointed counsel for minor.
S.(S.) v. Commonwealth of Kentucky
We agree with S.S. that the trial court clearly erred in finding that it lacked authority to appoint counsel for her in this proceeding. Hence, we must vacate the termination and adoption judgments, and remand for additional proceedings, including appointment of counsel if appropriate.

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

None.

MNT09222017

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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

 

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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.

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