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 (2015.09.16.DiscretionaryReview.pdf, 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 (2015.08.12.DiscretionaryReview.pdf, 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

SC: Discretionary Reviews Pending Before SCOKY – Tort, Insurance Civil Law Cases Only

 

Harlan County Justice Center, Harlan, Kentucky.  Photo from flickr by "OZinOH", a retired librarian who now lives in Australia who takes reallly good photos

Harlan County Justice Center, Harlan, Kentucky. Photo from flickr by “OZinOH”, a retired librarian who now lives in Australia who takes reallly good photos with link to his profile and pics below. https://www.flickr.com/photos/75905404@N00/.

Pending tort, insurance, and civil procedure cases before SCOKY with dates discretionary review granted for each.  These are simply extracts from the published list from the AOC which is current through October 2014.

Miami Management Company v. Bruner, 2012-SC-318-DG
MDR Granted 12/12/2012
Torts. Open and Obvious Doctrine. The issue in this case, arising out of a fall in a restaurant parking lot which had been plowed and salted after a winter storm, involves the applicability of Kentucky River Medical Center v. McIntosh, 319 S.W.3d 385 (Ky. 2010).
Oral argument-June 2013

Scott v. Davis, 2013-SC-228-DG and
(Cross-Motion) Davis v. Scott, 2013-SC-682-DG
MDR Granted 9/18/13 & cross motion granted 11/13/2013
Statute of Limitations. Law of the Case Doctrine. Issues include whether the statute of limitations is tolled when the underlying action was dismissed due to the improper assignment of a legal malpractice claim, so as to allow the plaintiff to re-file the action.
Oral argument-August 2014

Sargent v. Shaffer, 2013-SC-111-DG
MDR Granted 12/11/13
Evidence Law. Jury Instructions. Medical Malpractice. Informed Consent. KRS 304.40-320(2). Issue is whether a jury instruction on informed consent in a medical negligence action must contain the duty enumerated in KRS 304.40-320(2).
Oral argument-June 2014

Carter v. Bullitt Host, LLC, 2013-SC-325-DG
MDR Granted 2/12/14
Torts. Personal Injury. Open and Obvious Doctrine. Issues include whether application of the open and obvious doctrine allows for summary judgment in this case, arising out of a fall in an icy hotel parking lot.
Oral argument- October 2014

Sparkman v. CONSOL Energy, 2013-SC-119-DG
CONSOL Energy v. Sparkman, 2013-SC-831-DG
MDR Granted 3/12/14
Civil Procedure. Parties. Standing. Issues include whether the Court of Appeals properly vacated the trial court’s judgment in favor a business entity that was not a named plaintiff.

Kentucky Farm Bureau Mutual Ins. Co. v. Conley, 2013-SC-252-DG
MDR Granted 3/12/14
Civil Procedure. Appeals. CR 59.05. CR 7.02. The issue is whether a timely CR 59.05 motion which does not state grounds is invalid due to the particularity requirements of CR 7.02 and, if so, whether filing of the CR 59.05 motion tolls the time to file an appeal.
Oral argument-September 2014

Beaumont v. Zeru, 2013-SC-489-DG
MDR Granted 4/19/2014
Motor Vehicle Insurance. Statute of Limitations. KRS 304.39-230(6). Issues involve the date of the last basic reparation payment when the last check as reported by the basic reparations obligor to the plaintiff actually was a replacement check for one previously lost by a different payee.
Oral argument-October 2014

Wright v. Carroll, 2013-SC-528-DG
DISCRETIONARY REVIEW GRANTED WITHOUT ORAL ARGUMENT 4/9/14
Torts. Motor Vehicle Accident. Issues include whether, on retrial, plaintiff was entitled to a directed verdict as to defendant trucker’s liability for injuries resulting from the trailer portion of the tractor-trailer striking plaintiff’s vehicle in the proper lane of travel on a two-lane highway.
Decision Dated Oct. 2014 – Click here

Wright v. Ecolab, Inc., 2013-SC-653-DG
MDR GRANTED 6/11/2014
Appellate Procedure. Issues involve whether a premature notice of appeal from an interlocutory decision not containing the necessary CR 54.02 recitations of finality can be salvaged by the “relation forward” rule or entry of a nunc pro tunc order adding the CR 54.02 recitations.
Oral argument-February 2015

Cadle v. Cornett, 2013-SC-538-DG
MDR Granted 6/11/2014
Torts. Negligence. Causation. Superseding Cause. Issues include whether Kentucky’s acceptance of the law of comparative fault has changed the effect of the doctrine of superseding cause, and if so, to what extent.
Oral argument-February 2015

Patton v. Bickford, 2013-SC-560-DG
MDR Granted 6/11/2014
Torts. Negligence. Causation. Qualified Immunity. Issues include whether summary judgment was properly granted based on qualified immunity of school officials and whether suicide is a superseding cause which extinguishes tort liability.
Oral argument-March 2015

State Farm v. Riggs, 2013-SC-555-DG
MDR GRANTED 6/11/2014
Contract. Automobile Insurance. Underinsured Motorist Coverage. Issues include whether an automobile insurance policy provision requiring underinsured motorist claims to be brought within the same time period as tort claims under the Motor Vehicle Reparations Act—two years from the date of the accident or last basic reparations payment, whichever is later—is valid and enforceable.
Oral argument- February 2015

Overstreet v. Kindred Nursing Centers Limited Partnership,
2013-SC-620-DG
MDR GRANTED 6/11/2014
Limitation of Actions. KRS 216.515. Issues include whether KRS 216.515 created a new cause of action or whether the cause of action was one for personal injury, and whether the statute of limitations for personal injury or for a newly established statutory action applies.
Oral argument-March 2015

Nissan Motor Company v. Maddox, 2013-SC-685-DG
MDR Granted 6/11/2014
Torts. Products Liability. Design Defect. Punitive Damages. Issues include whether the plaintiff presented sufficient evidence to warrant a punitive damages instruction where the defendant car manufacturer complied with federal safety standards.

Saint Joseph Healthcare, Inc. v. Thomas, 2014-SC-8-DG
MDR Granted 9/10/2014
Punitive Damages. KRS 411.184. Issues include whether or not physicians whom the hospital alleges are independent contractors are considered as employees of the hospital for the purpose of assessing punitive damages under the provisions of the federal Emergency Medical Treatment and Active Labor Act (EMTALA), whether an award of punitive damages was so excessive as to constitute a denial of federal Constitutional due process, and the interplay between the EMTALA and KRS 411.184.

SC: Pending Grants of Discretionary Review, effective 10/15/2014 (from AOC List)

Court Room in the Harlan County Justice Center, Harlan, Kentucky.

Court Room in the Harlan County Justice Center, Harlan, Kentucky.

Here is the most recently available list of pending grants of discretionary review before the Supreme Court of Kentucky as of Oct. 15, 2015.  The following is the PDF from the AOC’s web site with some annotated highlights of cases involving tort, insurance, civil procedure, and appellate procedure cases.

Download (2014.10.15.DiscretionaryReview.pdf, PDF, Unknown)

SC: October 2014 Discretionary Review Grants – Seven (7)

On October 15, 2014, the Supreme Court of Kentucky granted discretionary review to hear seven (7) cases.  The case number below contains a link directly to the respective case information page maintained by the Administrative Office of the Courts (AOC).  For this month’s complete minutes which includes the denials of discretionary review, then click here.

COURT ORDERS GRANTING MOTION FOR DISCRETIONARY REVIEW – OCTOBER 15, 2014

ESTATE OF MILDRED L. MCVEY V. DEPARTMENT OF REVENUE, FINANCE AND ADMINISTRATION CABINET, COMMONWEALTH OF KENTUCKY
2014-SC-000013-DG FRANKLIN

TOWER INSURANCE COMPANY OF NEW YORK V. BRENT HORN, ET AL.
2014-SC-000015-DG MARTIN

ASBURY UNIVERSITY V. DEBORAH POWELL, ET AL.
2014-SC-000095-DG JESSAMINE

JERRY JAMGOTCHIAN V. KENTUCKY HORSE RACING COMMISSION,ET AL.
2014-SC-000108-DG FRANKLIN

JOHN CHARALAMBAKIS V.  ASBURY UNIVERSITY, ET AL.
2014-SC-000215-DG JESSAMINE

JEFFREY PETTINGILL V. SARA YOUNT PETTINGILL
2014-SC-000456-DGE JEFFERSON

N.J.S. V. C.D.G.
2014-SC-000495-DGE JEFFERSON

SC: September 2014 Discretionary Review Grants – Five

On September 10, 2014, the Supreme Court of Kentucky granted discretionary review to hear five (5) cases.  The case number below contains a link directly to the respective case information page maintained by the Administrative Office of the Courts (AOC).  For this month’s complete minutes which includes the denials of discretionary review, then click here.

CABINET FOR HEALTH AND FAMILY SERVICES V. J.M.G., ET AL.
2013-SC-000797-DG FAYETTE

RUTH ANN SADLER V. BARBARA LOIS VAN BUSKIRK
2013-SC-000809-DG FAYETTE

COMMONWEALTH OF KENTUCKY V. ADRIAN PARRISH
2013-SC-000830-DG JESSAMINE

SAINT JOSEPH HEALTHCARE, INC.,  D/B/A SAINT JOSEPH HOSPITAL V.  LARRY O’NEIL THOMAS, AS ADMINISTRATOR OF THE ESTATE OF JAMES “MILFORD” GRAY, DECEASED, ET AL.
2014-SC-000008-DG FAYETTE

KEVIN ADDISON V. LYDIA ADDISON
2014-SC-000309-DGE HARDIN

SC: August 2014 Grants of Discretionary Review

Ten (10) motions for discretionary review were granted by the Supreme Court of Kentucky for June 2014.  The links to the Supreme Court’s case information page are entered based upon templates, but should the link not work, then please email me AND then try the AOC’s case information pages directly.

Wagner’s Pharmacy, Inc vs. MelissaK. Pennington
2013-SC-000541-DG from Jefferson County
MDR Granted 8/21/2014
SC Case Info – click here
COA Case info, and link to decision, if available – – click here

Lawrence Pate vs. Commonwealth of Kentucky
Franklin County  2013-SC-000558-DG for case info
Bracken County 2013-SC-000559-DG for case info
SC Case Info – click here
COA Case info, and link to decision, if available – – click here

James Overstreet, Adm of Est. of Lula Belle Gordon vs. Kindred Nursing Centers Ltd Partnership
MDR Granted 8/21/2014
2013-SC-000620-DG MERCER

Cassandra Falk v. Alliance Coal Co.
MDR Granted 8/21/14
2013-SC-000655-DG

NISSAN MOTOR COMPANY, LTD., ET AL. V. AMANDA MADDOX
2013-SC-000685-DG LINCOLN

ALLSTATE INSURANCE COMPANY V. CRAIG T. SMITH
CUNNINGHAM, J., WOULD DISPENSE WITH ORAL ARGUMENT
2013-SC-000732-DG JEFFERSON

COMMONWEALTH OF KENTUCKY, ET AL. V. AT & T CORPORATION
SCOTT, J., WOULD HEAR ORAL ARGUMENT
2013-SC-000800-DG JEFFERSON

THE BOARD OF REGENTS OF NORTHERN KENTUCKY UNIVERSITY V.ANDREA WEICKENANNT
2013-SC-000820-DG CAMPBELL

C.D.G. V. N.J.S.
2014-SC-000329-DGE JEFFERSON