COA: January 12, 2018 Court of Appeals Decisions (Minutes)

Nos. 23-33: 11 Decisions Posted with 1 decision designated for publication

PUBLISHED DECISIONS:

25.  Appeals.
Steffan v. Smyzer
Appellant, Donald Steffan in his individual capacity as an employee of the Jefferson County Board of Education, appeals from an opinion and order of the Jefferson Circuit Court denying his motion for summary judgment based on immunity under the Paul D. Coverdell Teacher Liability Protection Act of 2001, 20 U.S.C.A. §§ 6731-6738. We conclude that the trial court’s order was interlocutory in nature and, as such, Appellant’s appeal must be dismissed.

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

26.  Torts. Negligent misrepresentation, and intentional interference with a prospective contractual relationship.
Turner v. Kentucky River Community Care

30.  Automobiles. Ownership and certificate title;  not equitable title.
Houston v. Barker

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 (if not already marked on first page of decision after publication), amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.   Click Court of Appeals Minutes for entire listing of weekly minutes.

All decisions regardless of publication are posted and can be read, but those decisions designated not for publication cannot be cited as legal authority.  See, KRCP 76.28(4)(c)(“Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would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 Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.”)

MNT01122018

COA: January 5, 2018 Court of Appeals Decisions (Minutes)

Nos. 1 - 22 --- 22 Decisions Posted with 5 decisions designated for publication

PUBLISHED DECISIONS:

6.  Medical negligence.
Quattrocchi v. Nicholls
Appeal of jury verdict in favor of Paul Nicholls, M.D., and dismissing the medical negligence claim brought by Ann Quattrocchi. Ann argues that the trial court improperly excluded evidence of a surgical incident which led to her sciatic nerve palsy. As the evidence of record shows exclusion of the evidence and the failure to grant a continuance amounted to an abuse of discretion, we reverse and remand.

9.  Criminal Law.  DNA and Daubert.
Commonwealth of Kentucky v. Baldwin
The Commonwealth of Kentucky brings this appeal from an interlocutory order excluding expert testimony regarding DNA1 evidence. The Commonwealth offered the evidence during Robert L. Baldwin’s murder trial. After reviewing the record and observing that the Trimble Circuit Court did not conduct a Daubert hearing regarding the analytical technology used to further test blood from the crime scene, we vacate the order and remand.

11.  Underinsured Motorist Benefits and Stacking.
Consolidated Ins. Co. v. Slone
Consolidated Insurance Company appeals from an order of the Magoffin Circuit Court declaring that the appellees are entitled to stack the underinsured motorist coverages (UIM) provided in a vehicle insurance policy issued to the Magoffin County Board of Education. The primary issue presented is whether an anti-stacking provision in the Consolidated policy limits the total UIM coverage available to $500,000. We conclude that the provision precludes the appellees, who are insureds of the second class, from stacking the UIM coverages. We further conclude that any alleged misrepresentation made by a Consolidated insurance agent regarding stacking to the Magoffin County Board of Education does not estop Consolidated from enforcing the anti-stacking provision.

16.  Revenue and Taxation.  Ad valorem re county library.
Coleman v. Campbell County Library Road
Charlie Coleman, John P. Roth Jr. and Erik Hermes (hereinafter “the taxpayers”) bring this appeal from the Campbell Circuit Court’s grant of summary judgment to the Campbell County Library Board of Trustees (hereinafter “the Board”). The primary issue is whether the holding of an opinion(hereinafter “the Opinion”) of the Court of Appeals, which harmonized statutes relating to public library ad valorem tax rates, is to be applied retroactively or prospectively only.

20.  FELA.  Jury instructions.
Boggs v. CSX Transportation, Inc.
Larry M. Boggs appeals from the judgment of the Jefferson Circuit Court entered upon a jury verdict in favor of CSX Transportation, Inc., (CSX). Boggs presents numerous issues for our review. However, our disposition of the appeal turns upon our resolution of a single issue: whether the trial court erred in its instructions to the jury panel. After our review, we reverse and remand for further proceedings.

 

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

 

 

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 (if not already marked on first page of decision after publication), amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.   Click Court of Appeals Minutes for entire listing of weekly minutes.

MNT01052018

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

Nos. 1051-1071 -- 18 Decisions Posted with 2 decisions designated for publication

PUBLISHED DECISIONS:

1054.  Declaratory Judgment.  Participation in County Employees Retirement System (CERS)
County Employees Retirement System v. Frontier Housing
Affirmed dismissal of motion to dismiss on sovereign immunity.

1066.  Torts.  duty of care.
Mitchell v. Commonwealth of Kentucky 
Affirmed dismissal of claim against state for escaped convict who was evading police and struck Mitchell.  The trial court concluded CTS did not have a special relationship with Brenda triggering a duty of care, and it was not foreseeable Mace would walk away from CTS, travel from Jefferson County to Floyd County, steal a car, and, while attempting to evade police in a high-speed car chase cause a collision with Brenda which would result in her death.

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

1063.  Appeal.  Dismissed untimely notice of appeal.
Henderson v. Oliver

1065.  Torts.  Negligent supervision of children. Lays out elements etc. in case where child hit plaintiff in back of head with water balloon.
Thomas v. Bottoms

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 (if not already marked on first page of decision after publication), amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.   Click Court of Appeals Minutes for entire listing of weekly minutes.

MNT12222017

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

Nos. 1037 - 1053 -- 17 Decisions Posted with 3 decisions designated for publication

PUBLISHED DECISIONS:

1038.  Rule 11.  Affirmed trial court’s Rule 11 sanctions.
Large v. Oberson

1039.  Torts.  Defamation.  Affirmed summary judgment dismissing defamation  action .  No discovery.
National College of Kentucky, Inc. v. Wave Holdings, LLC

1045.  Negligent hiring/retention.  Higher standard for carriers.
Kendall v. Godbey

Since genuine issues of material fact exist as to whether Community Cab properly vetted Abukar prior to employing him, we hold that summary judgment was improperly granted and remand this matter to the trial court for a continuation of the litigation concerning the legal malpractice. In making this determination, we are proffering no opinion as to the ultimate result of the litigation but merely indicating that summary judgment was premature.

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

1037.  Summary judgment and timing of discovery
Krohn v. Meuser

1044.  Affirmed dismissal of wrongful use of civil process.
The Getty Law Group v. Bowles, Rice, McDavid, Graff & Love

1046.  Tresspass.  Affirmed award of $19,402.22 in damages on claims of trespass to chattel and trespass to personal property.
Stanley v. Knuckles

1047.  Wrongful death claim when decedent fell into a septic tank sinkhole and died presented a host of issues from wrongful death, municipal immunity, independent contractor etc.
Estate of Dorothy Brown v. Louisville/Jefferson County Metropolitan Sewer District

1048.  Torts. Workplace sexual harassment, hostile work environment, and retaliatory discharge.
Gibson v. H&J Restaurants, LLC

1051.  Immunity and negligence claim against prison security officers.
Collins v.  Vandiver

1052.  Premises liability, immunity and schools.
Sergent v. Murphy

1053.  Claims of breach of contract, promissory estoppel, and intentional infliction of emotional distress (IIED)
Watson v. Jargoe Homes

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 (if not already marked on first page of decision after publication), amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.   Click Court of Appeals Minutes for entire listing of weekly minutes.

MNT12152017

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

Nos. 1024 - 1036 -- 13 Decisions Posted with 5 decisions designated for publication

PUBLISHED DECISIONS:

1026.  Oral trust and real property.
Bickett v. Cecil

1031.  Criminal Law.  Motion to suppress.  DNA. Discovery violations.
Terry v. Commonwealth of Kentucky 

1032.   Civil Procedure.  Torts.  Reversed & remanded default judgment for slip and fall at Campbell House in Lexington .
HP Hotel Management v. Layne

1035.  Workers Compensation.  Reversed and remanded ALJ decision that Overstreet’s permanent partial disability benefits terminate when he reaches normal old-age Social Security retirement age pursuant to Kentucky Revised Statute (KRS) 342.730(4)
Overstreet v. American Printing House for the Blind

1036.  Family Law.  Vacated DVO and remanded to family court for full evidentiary hearing.
Allen v. Gueltzow

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

None

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 (if not already marked on first page of decision after publication), amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.   Click Court of Appeals Minutes for entire listing of weekly minutes.

MNT12082017

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

Nos. 1010-2023 -- 24 Decisions Posted with 2 decisions designated 'to be published' with links to full text of each decision

PUBLISHED DECISIONS:

1012.  Criminal Law.  Giving a police officer a false name.
Stephenson v. Commonwealth of Kentucky

1014. Discrimination. Vacated and remanded trial judge improperly dismissing.  discrimination complaint.
Taylor v, Middleton Fire Protection District

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

1010.  Reversed default judgement.  Long arm statute, service by SOS.
Cemerlic v. Verralab JA LLC
Appealed order denying motion to set aside a default judgment. They argud they showed good cause to set aside the default judgment: they have a valid excuse for their default because they were not properly served by the Secretary of State and were unaware of the lawsuit, they have a meritorious defense and there is no prejudice. Reversed & remanded. Note that NO brief was filed by appellee, and Judge Acree filed dissent.

MNT12012017

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

Nos. 981-1009: 29 Decisions Posted with no decisions designated 'to be published' with links to full text of each decision

PUBLISHED DECISIONS:

None.

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

984.  Insurance Coverage.  Coverage re terms of “occurrence” and “intentional”.
Brown v. Kentucky Farm Bureau Mutual Ins. Co.
Affirmed summary judgment in favor of the defendant in the wrongful death claim that involved shooting and burial of the body. The mother of the decedent attempted to distinguish the shooting from the damages she sustained by the burial and hiding the body. This was not considered a covered “occurrence” under the policy.  In addition, the bodily injury was not covered since it was a harm expected or intended by the insured.

997.  Reversed dismissal of default judgment granted in favor of the insurance company.
Amica Mutual  Insurance  Company  v.  Marzette

1001.  Affirmed dismissal of claim for malicious prosecution.
O’Hara v. Marsh

MNT11222017

COA: November 17, 2017 Court of Appeals Decisions (Minutes)

Nos. 966-980: 15 Decisions Posted with a 2 decisions designated 'to be published' with links to full text of each decision

PUBLISHED DECISIONS:

976.  Insurance.  Captive health insurer exempt from Unfair Claims Settlement Practices Act
Merritt v. Catholic Health Initiatives, Inc.

978.  Criminal Law. Sentencing Evidence relating to uncharged misconduct, dismissed charges and unverified community complaints not error.
Snodgrass v.  Commonwealth of Kentucky

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

None.

MNT11172017

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

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

COA: November 9, 2017 Court of Appeals Decisions (Minutes)

Nos. 942-965: 24 Decisions Posted with a 6 decisions designated 'to be published' with links to full text of each decision

PUBLISHED DECISIONS:

945.  Business.  Stock repurchase agreement.
Rogers v. Family Practice Associates of Lexington, PSC

949.  Criminal Law. Ineffective Assistance of counsel.
Ferguson v. Commonwealth of Kentucky
Reversed and remanded. Defendant received constitutionally ineffective assistance of counsel leading to his conviction for murder. We reverse and remand for new trial.

952.  Family Law.  Division of military retirement pay.
Priest v. Priest

953.  Business Law. Breach of contract and repayment of advances.
Bloomsz, LLC v. Van Bourgondien

954.  Flagrant nonsupport and diversion agreement.
Price v. Commonwealth of Kentucky  (link corrected from minutes)

955.  Flagrant nonsupport and diversion agreement.
Lainhart v. Commonwealth of Kentucky

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

942.  Retaliatory and wrongful termination
Hackney v. Mountain Comprehensive Care Center. Inc.

959.  Nursing Home Arbitration Case.
New Oaklawn Investments, LLC dab Oaklawn Health and Rehabilitation Center v. Stein, Executrix Est of June Lee

MNT11092017

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

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.