SC: December 2016 Grants of Discretionary Review by the Supreme Court of Kentucky (MDRs)

COURT ORDERS GRANTING MOTION FOR DISCRETIONARY REVIEW – DECEMBER 8, 2016

  • For Supreme Court case information, click here.
  • For Court of Appeals case info, click here.  Note, a link to the COA decision can be found under the case information.

    AUSLANDER PROPERTIES, LLC V.JOSEPH HERMAN NALLEY, ET AL.  2016-SC-000099-DG NELSONANGELA FORD, ET AL. V. FAISAL SHAH, ET AL.
    2016-SC-000136-DG FAYETTE

    MARTIN/ELIAS PROPERTIES, LLC V. ACUITY, A MUTUAL INSURANCE COMPANY
    2016-SC-000195-DG KENTON

    BOARD OF COMMISSIONERS OF THE CITY OF DANVILLE, KENTUCKY V. ADVOCATE COMMUNICATIONS, INC., ETC.
    2016-SC-000280-DG BOYLECOMMONWEALTH OF KENTUCKY V. KYLE D. THOMPSON
    2016-SC-000365-DG HARDIN

    KENTUCKY UNEMPLOYMENT INSURANCE  JEFFERSON COMMISSION V. NORMAN WILSON, ET AL.
    2016-SC-000411-DG

    PHILLIP EDMONDSON V. COMMONWEALTH OF KENTUCKY BAUMANN PAPER CO.,
    2016-SC-000427-DG UNION

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

COURT ORDERS GRANTING MOTION FOR DISCRETIONARY REVIEW – FEBRUARY 9, 2017

For Supreme Court case information, click here.
For Court of Appeals, click here.  Note, a link to the COA decision can be found under the case information.
Click here for the entire minutes which includes MDR grants and denials and other orders.

UNIVERSITY OF LOUISVILLE V. MARK ROTHSTEIN
2016-SC-000220-DG FRANKLIN
HUGHES, J., NOT SITTING.

COMMONWEALTH OF KENTUCKY V. WILLIAM ROY HELM, JR.
2016-SC-000370-DG HARDIN

RICHARD STORM V. LOUIS MARTIN
2016-SC-000457-DG JEFFERSON

COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES, ETC. V. LETTIE SEXTON, ETC., ET AL.
2016-SC-000529-DG HARLAN

AND 

COVENTRY HEALTH AND LIFE INSURANCE COMPANY. V. LETTIE SEXTON, ETC., ET AL.
2016-SC-000534-DG HARLAN

AND 

LETTIE SEXTON, ETC. V. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES, ET AL.
2016-SC-000540-DG HARLAN

SALLY CAROL GRASCH V. ALBERT FRANKLIN GRASCH, JR.
2016-SC-000591-DG FAYETTE
VANMETER, J., NOT SITTING.

STEPHEN MARCHESE V. ALLISON AEBERSOLD
2016-SC-000644-DGE JEFFERSON

SC: Discretionary Review Grants by Supreme Court as of September 16, 2016

University of Louisville v. Lillard, 2016-SC-64-DG
Sovereign Immunity. Contract. Employment. KRS 45A.245. Issues include whether the University is immune from a former employee’s claim for breach of his written employment contract.

Big Sandy Regional Jail Authority v. Lexington-Fayette Urban County Government, 2016-SC-8-DG
Sovereign Immunity. KRS 441.025. At issue in this matter is whether sovereign immunity bars an action by a regional jail against a county to recover the costs of housing that county’s prisoners, after they were arrested and held pursuant to a warrant from courts of that county. In addition, at issue is whether KRS 441.025 obligates a county to pay for the incarceration of prisoners arrested and held on warrants issued by the courts of that county which are served in the county where the prisoner is incarcerated.

2016-09-16-discretionaryreview

SC: Discretionary Review Grants by Supreme Court for August 17, 2016

 

DISCRETIONARY REVIEW GRANTED 8/17/16

Adams v. Sietsema, 2015-SC-483-DG

Negligence. Medical Malpractice. Jail Healthcare. Expert Testimony.

Issues include whether an inmate who claims that the jail’s medical director and nurse practitioner caused his illness to become life threatening by inadequately supervising and communicating with the jail’s nursing staff was required to present expert testimony to establish the standard of care for jail medical staff.

Armfield v. Kentucky Farm Bureau Mutual Insurance Company, 2016-SC-148-DG

Insurance. MVRA. Underinsured Motorists Coverage. Motorcycle Exclusion.

Issues involve whether loss of consortium claims are barred by the UIM policy exclusion regarding bodily injuries sustained while occupying and operating a motorcycle.

Talley v. Paisley, 2016-SC-92-DG

Real Estate. Partition. Joint Tenancy with Right of Survivorship.

Issues involve division of proceeds of sale of realty owned by unmarried cohabiting couple in joint tenancy with right of survivorship.

Majestic Oaks Homeowners Association, Inc. v. Majestic Oaks Farms, Inc., 2016-SC-213-DG

Easements. Expiration of easement.

The issue in this case is whether the original roadway easement given to the developer of property was extinguished automatically after conveyance of developer’s lots and after conveyance of the common areas to the homeowners’ association, such that the developer was denied access to another property owned by the developer via roadways in the original development.

Riffe v. Commonwealth, 2016-SC-219-DG

Criminal Law. Suspension of driver’s license for refusal to take breathalyzer. Subsequent acquittal on DUI charge.

The issue in this case is whether the trial court erred in suspending the driver’s license for 36 months following his acquittal on a DUI-third offense, where the driver had refused a breathalyzer on advice of counsel.

Moss v. Commonwealth, 2016-SC-165-DG

Criminal Law. Evidence. Adoptive admissions. Pre-arrest silence.

The primary issue in this case is whether a defendant’s failure to respond to a witness’ statement made during a police investigation constitutes an adoptive admission, which may be introduced into evidence, or whether this failure to respond to the witness’ statement is pre-arrest silence which may not be introduced as evidence against the defendant.

DISCRETIONARY REVIEW GRANTED 4/27/16 and CROSS MOTION

GRANTED 8/17/16

Nami Resources Company, LLC v. Asher Land and Minerals, Ltd, 2015-SC-489-DG and

(Cross Motion) Asher Land and Minerals, Ltd v. Nami Resources Company, LLC, 2016-SC-235-DG

Oil and Gas. Contracts. Fraud. Punitive Damages.

Issues involve alleged fraud and/or breach of contract in underpayment of oil and gas royalties pursuant to lease plus the propriety of imposing punitivedamages.

DISCRETIONARY REVIEW GRANTED WITHOUT ORAL ARGUMENT

8/17/16

Commonwealth v. Hughes, 2016-SC-137-DG

Criminal Law. CR 60.02.

Issues involve application of CR 60.02 to repeatedly rejected ineffective assistance of counsel contentions.

Hawkins v. Commonwealth, 2015-SC-639-DG

Criminal Law. First-Degree Trafficking in a Controlled Substance. KRS 218A.1412.

Issues include whether the provisions of the first-degree trafficking statute that enhance a defendant’s felony class based on the weight of the drug trafficked are intended to refer to the aggregate weight of the entire substance, i.e., pure drug plus filler substances, or solely to the portion of the substance’s total weight that consists of the pure drug itself.

Commonwealth v. Copley, 2015-SC-584-DG

Criminal Law. RCr 11.42. Ineffective Assistance of Counsel.

Issues include whether the defendant’s trial counsel provided ineffective assistance by failing to adequately explain the possibility of an EED defense.

Morrison v. Commonwealth, 2015-SC-712-DG

Criminal Law. Jury selection. Strikes for cause. Familial relation to countyattorney. Abuse of discretion.

The issue in this case is whether the trial court abused its discretion in refusing to strike for cause a potential juror who is the mother of the county attorney who had conducted the preliminary hearing in this case.

SC: Discretionary Review Grants by Supreme Court on June 8, 2016

DISCRETIONARY REVIEW GRANTED 6/8/16

Collins v. Commonwealth Transportation Cabinet, 2015-SC-675-DG

Administrative Law. Board of Claims.

Issues involve the scope of duty owed by the Transportation Cabinet Bureau of Highways in enforcing regulation regarding length and width of motor vehicles on a “nondesignated”highway.

Utility Management Group, LLC v. Pike County Fiscal Court, 2015-SC-680-DG

Open Records. KRS 61.870(1)(h) “Public Agency.”

Issues, including a constitutional challenge, involve whether a private for-profit entity contracting for operational and management services with a public entity is a “public agency” for purposes of the Kentucky Open Records Act.

Traft v. Commonwealth, 2015-SC-470-DG

Criminal Law. 4th Amendment. Traffic Stop. License Plate Reader.

Issues include whether the police have reasonable suspicion to conduct a traffic stop based solely on a license plate reader alert indicating that the owner of a vehicle has a pending warrant.

DISCRETIONARY REVIEW GRANTED WITHOUT ARGUMENT 6/8/16

Murrell v. Bottom, 2016-SC-76-DG

Criminal Law. Habeas Corpus. Transfer of Prisoner.

Issues include whether paroling a convict to the authorities of another jurisdiction in 2001 waived the Commonwealth’s right to recommit the convict for violation of the terms of his parole in 2013.

SC: Discretionary Review Grants by Supreme Court for April 2016

DISCRETIONARY REVIEW GRANTED 4/27/16

Nami Resources Company v. Asher Land and Minerals, Ltd,

2015-SC-489-DG

Oil and Gas. Contracts. Fraud. Punitive Damages. Issues involve

alleged fraud and/or breach of contract in underpayment of oil and gas

royalties pursuant to lease plus the propriety of imposing punitive

damages.

State Farm v. Adams, 2015-SC-366-DG

Auto Accidents. Insurance. MVRA. Examination Under Oath. Issues

include whether an injured passenger is obligated to comply with a driver’s

insurance policy provision requiring an examination under oath as a

prerequisite to uninsured motorist or basic reparations benefits.

University of Kentucky v. Carpenter, 2015-SC-384-DG

Sex Discrimination. Retaliation. Kentucky Civil Rights Act. Kentucky

Whistleblower Act. Issues include: (1) whether the circuit court properly

ordered separate trials for each of the female police officers; (2) whether

the female police officers presented sufficient evidence of discrimination

and retaliation to survive summary judgment or a directed verdict; and (3)

whether the female police officers’ supervisors are subject to individual

liability under the Kentucky Whistleblower Act.

Dugan & Meyers Construction Company v. The Ascent at Roebling’s

Bridge, LLC, 2015-SC-635-DG, and The Ascent at Roebling’s Bridge, LLC

v. Superior Steel, 2015-SC-636-DG (cross-motions with Superior Steel v.

The Ascent at Roebling’s Bridge, LLC, 2015-SC-204-DG)

Contracts. Indemnity. Extra Work. Attorney Fees. Unjust Enrichment.

Jury Instructions. These cross-motions for discretionary review seek

review of those portions of the Court of Appeals’ decision which granted

the general contractor indemnity against the owner and construction

manager, and their insurer for amounts owed by the general contractor to

the subcontractors for extra work performed and for attorney fees awarded.

In addition, review is sought of the Court of Appeals’ decision which

vacated the jury verdict and judgment in favor of the construction manager

against the general contractor. Review is also sought of the jury

instructions under which the trial court found unjust enrichment against the

owner of the property.

Paducah Independent School District v. Putnam & Sons, LLC,

2015-SC-711-DG

Eminent Domain. Fair Market Value. Stand Alone Use of Property.

Highest and Best Use. Expert Testimony. The issue is whether the Court

of Appeals erred in its application of the highest and best use test in this

eminent domain proceeding, and in doing so, whether the Court of Appeals

usurped the role of the trial court as the finder of fact in such proceedings.

DISCRETIONARY REVIEW GRANTED WITHOUT ORAL ARGUMENT

4/27/16

Cobb v. Commonwealth, 2016-SC-63-DG

Warrantless Search of Impounded Vehicle. Suppression of Evidence.

Public Safety Exception. The first issue in this case is whether there was

reasonable basis to impound a vehicle which was parked in a driveway

prior to the arrest of its driver. The second issue is whether the public

safety exception to the requirement for a search warrant applies to permit

the inventory search of an impounded vehicle of a driver arrested by the

police for driving on a suspended license.

SC: Discretionary Review Grants by Supreme Court as of September 16, 2015

Cumberland Falls, Double Rainbow, 10/30/2015. Photo by Michael Stevens.

Cumberland Falls, Double Rainbow, 10/30/2015. Photo by Michael Stevens.

Supreme Court grants of discretionary review on September 16, 2015 and complete list of pending grants as of September 2015.

DISCRETIONARY REVIEW GRANTED 9/16/15

Kentucky Retirement Systems v. Carson, 2015-SC-94-DG
Administrative Law. Disability Retirement. Issues include the applicability of administrative res judicata in the context of a KRS 61.600(2) disability benefits reapplication.

Kentucky Retirement Systems v. Wimberly, 2015-SC-159-DG
Administrative Law. Disability Retirement. Issues include the applicability of administrative res judicata in the context of a KRS 61.600(2) disability benefits reapplication as well as whether alcohol abuse can constitute a KRS 61.600(3)(d) preexisting “condition.”

McCarty v. Faried, 2015-SC-271-DGE
Family Law. Child Support. Income Exceeding Guidelines. Issues include whether the trial court properly included projected expenses in the child’s reasonable needs when establishing an initial child support order for a high income parent.

DISCRETIONARY REVIEW GRANTED WITHOUT ORAL ARGUMENT 9/16/15

Stone v. DuBarry, 2015-SC-40-DG
Attorney Fees. Does KRS 376.460 permit filing and enforcing an attorney’s lien to recover unpaid fees pursuant to the contract for representation in a marital dissolution proceeding involving division of marital assets?

Rice v. Commonwealth, 2014-SC-733-DG
Criminal Law. Home Incarceration. Non-Violent Felony Offense. KRS 532.210. Issues include whether a defendant who commits a non-violent Class D felony with a mandatory prison sentence is eligible to serve that sentence on home incarceration.

Hacker v. Commonwealth, 2015-SC-38-DG
Criminal Procedure. Court’s comment prior to jury deliberations about defense counsel’s comment regarding presence of subpoenaed witness for prosecution. The issue is whether it was reversible error for the trial court, in the absence of any objection, to comment to the jury after closing arguments and before deliberations, that defense counsel had misled the jury, even inadvertently, in regard to why a particular witness was testifying in the case.

Shinkle v. Turner, 2015-SC-39-DG
Forcible Detainer. Statutory Notice to Vacate Premises. The issue is the propriety of the filing of a forcible detainer action prior to the expiration of the 30 notice to vacate the premises required by KRS 383.195, and whether the trial court may delay entry of an order until the expiration of the 30 days, or must dismiss the action as improperly filed.

Unifund CCR Partners v. Harrell, 2015-SC-117-DG
Prejudgment interest. Rights of third party assignee of a debt. Violation of Fair Debt Collection Practices Act. The issue is whether a third party assignee of a debt can claim prejudgment interest at the statutory rate of 8% where the original creditor had charged off the debt and had stopped assessing the contractual rate of interest on the debt for several months prior to the sale of the debt to the third party. Is a claim for recovery of prejudgment interest at the statutory rate by a third party assignee a violation of the Fair Debt Collection Practices Act?

Pending grants of discretionary review as of  9/16/2015:

Download (PDF, Unknown)

SC: Discretionary Review Grants by Supreme Court as of Aug. 12, 2015

Webster County Court House, Dixon, Kentucky. Dixon, Built 1939, Architect- Lawrence Casner, Contractor - Russell Petrie

Webster County Court House, Dixon, Kentucky. Dixon, Built 1939, Architect- Lawrence Casner, Contractor – Russell Petrie

Here is the pending list of discretionary review grants by Supreme Court of Kentucky as of 8/12/2015;

Download (PDF, Unknown)

SC: Six (6) Motions for Discretionary Review Granted on Feb. 11, 2015

Post Card of Jefferson County Court House.  Louisville, Kentucky.

Post Card of Jefferson County Court House. Louisville, Kentucky.

No motions for discretionary review were granted in January 2015 (no minutes).

Six (6) motions for discretionary review were granted on February 11, 2014.  The link is to the Case Information Page at Administrative Office of the Courts (AOC) for the Supreme Court.  If there is a COA decision, then a link to the “pdf” of the decision will also be listed.

Two cases involved civil, tort, insurance issues:  Persels & Associates addresses Rule 11 sanctions imposed by trial court for drafter of pleadings NOT signing them and which was affirmed by the COA;  and in Countryway Insurance, the COA appeals held that the underinsured motorist benefits policy (UIM) covering the individual claimant was primary over the UIM policy of the car in which he was in at time of collision.

PERSELS & ASSOCIATES, LLC, ET AL. V. CAPITAL ONE BANK, ETC., ET AL.
2014-SC-000131-DG DAVIESS
COA Opinion
Rule 11 sanctions for national law firm handling Kentucky collection and signing pleadings by attorney actually drafting thenm

COMMONWEALTH OF KENTUCKY V. MIKE DOUGLAS RIEDER
2014-SC-000210-DG FAYETTE
COA Opinion
Witness testimony on issue for trier of fact (eg self-defense)

COUNTRYWAY INSURANCE COMPANY V. UNITED FINANCIAL CASUALTY INSURANCE COMPANY, ET AL.
2014-SC-000265-DG WARREN
COA Opinion
COA held that injured claimant’s individual UIM policy was primary over that of vehicle.

COMMONWEALTH OF KENTUCKY V. CATON KAMIL JONES
2014-SC-000306-DG FAYETTE
COA Opinion
Commonwealth did not prove Defendant’s actions satisfied the elements of engaging in a criminal syndicate.

JOHN WESLEY BAYS V. KRISTIE D. KIPHART, INDIVIDUALLY
2014-SC-000324-DG KNOX
COA Opinion
Curtesy interest in wife’s life insurance proceeds.

DALLIS ABNEY V. COMMONWEALTH OF KENTUCKY
2014-SC-000445-DG ESTILL
MINTON, C.J.; ABRAMSON, CUNNINGHAM, KELLER, NOBLE, AND VENTERS, JJ., SITTING. ALL CONCUR.
COA Opinion
Criminal Procedure.  Sufficiency of affidavit to support probable cause for search warrant.

SC: 9 Motions for Discretionary Review Granted on Dec. 10, 2014

Historical Marker in front of Jefferson County Court House, Louisville, Kentucky.  Photo by MLS.

Historical Marker in front of Jefferson County Court House, Louisville, Kentucky. Photo by MLS. For more history on this court house, then to to: http://en.wikipedia.org/wiki/Louisville_Metro_Hall

There were no minutes for November 2014 from SCOKY (and thus no MDRs, motions for discretionary review, granted.

Nine motions for discretionary review were granted on December 10, 2014.  The link is to the Case Information Page at Administrative Office of the Courts (AOC) for the Supreme Court.  If there is a COA decision, then a link to the “pdf” of the decision will also be listed:

LARRY PENIX V. BARBARA DELONG
2014-SC-000083-DG MARTIN
2011-CA-001526.pdf
2011-CA-001529.pdf
Measure of damages for trespass

JANET OWEN V. UNIVERSITY OF KENTUCKY
2014-SC-000137-DG FAYETTE
2012CA001681
Employment discrimination, administrative relief

COMMONWEALTH OF KENTUCKY V. JOE TAYLOR
2014-SC-000211-DG FULTON
Related SC Case
2011CA000724
Search and seizure – expectation of privacy and authority of third party consent (another parolee)

JONATHAN MCDANIEL V. COMMONWEALTH OF KENTUCKY
2014-SC-000241-DG CALLOWAY
Related SC Case:  2014-SC-000242 
Related SC Case:  2014-SC-000242
COA Opinion
Criminal Procedure, conditional discharge of sentence (now postincarceration supervision)

DAVID DESHIELDS V. COMMONWEALTH OF KENTUCKY
2014-SC-000242-DG MCCRACKEN
COA Opinion

JOHN C. MARTIN V. COMMONWEALTH OF KENTUCKY
2014-SC-000243-DG ANDERSON
COA Opinion

COMMONWEALTH OF KENTUCKY V. DOUGLAS RANK
2014-SC-000266-DG KENTON
COA Opinion 
Post conviction relief per ineffective assistance of counsel

ANTHONY MALONEY V. COMMONWEALTH OF KENTUCKY
2014-SC-000339-DG MONTGOMERY
COA Opinion
Search and seizure, claim of lack of probable cause for arrest for intoxication

LYDIA ADDISON V. KEVIN ADDISON
2014-SC-000582-DGE HARDIN
COA Opinion 
Claim that family court judge improperly placed time restriction on hearing to modify  custody