SC: June 2017 Oral Arguments before Ky Supreme Court

Click here for link to table of all monthly oral argument calendars at Kentucky’s Administrative Office of the Courts (AOC) from 2005 to date.

Click here for a link to all of the Kentucky Court Report’s postings on Supreme Court argument calendars.

Click here to catch live web streaming oral arguments on the date and time of the argument.  They are not saved for later viewing.

SCOJUN17

 

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

If you want more detailed information on those cases granted discretionary review, here are links to the case information pages at the Supreme Court and at the Court of Appeals.  You will need to do a search by name, case number, etc.

  • 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.

COURT ORDERS GRANTING MOTION FOR DISCRETIONARY REVIEW
MARCH 15, 2016

MICHAEL SCALISE, ET AL. V. SUZETTE SEWELL-SCHEUERMANN
2016-SC-000246-DG JEFFERSON

NORFOLK SOUTHERN RAILWAY COMPANY V. SHARON JOHNSON
2016-SC-000248-DG BOYLE

COMMONWEALTH OF KENTUCKY V. DAVID J. MOORE
2016-SC-000275-DG CARROLL

WILLIAM DAVID ELLINGTON, ET AL. V. HARLAN RANDALL BECRAFT, ET AL.
2016-SC-000513-DG BATH

WILLIAM J. YUNG, ET AL. V. GRANT THORNTON, LLP
2016-SC-000571-DG KENTON

LATASHA MAUPIN V. ROLAND TANKERSLEY
2016-SC-000572-DG JACKSON

HARRY L. SEEGER V. SHARON LANHAM
2016-SC-000677-DG NELSON

PBI BANK, INC. V. SIGNATURE POINT CONDOMINIUMS LLC
2017-SC-000007-DG JEFFERSON

SC: March 2017 Decisions of the Supreme Court of Kentucky (Minutes)

Complete minutes with links to full text of all decisions posted by the Supreme Court this month.

Here are some of Mar. 2017 published cases:

  • Workers’ Compensation. Weekly permanent-partial disability benefits and lump-sum attorney’s fee payment. Application of a multiplier reflecting the future periodic payment of the attorney’s fee commuted to a present value.

  • Family Law. Maintenance. Unemployed Spouse. Reasonable Expenses. Whether the family court correctly included expenses that are fully or partially attributable to the parties’ children in the unemployed spouse’s reasonable expenses when calculating maintenance.

  • Premises Liability. Application of McIntosh and Shelton cases to a case involving a fall in a depressed area of the pavement in a parking lot. Is the condition “unreasonably dangerous” or “open and obvious?” Whether the business manager had sufficient control of the premises to be held jointly and severally liable.

Here is a link to the indexed minutes for the Supreme Court of Kentucky at their official web site.

Here is link to the Kentucky Court Report’s archived minutes for the Supreme Court.

This month’s minutes of the published and not to be published decisions, disciplinary matters, discretionary reviews granted and denied, petitions for hearing requested and denied, and more are as follows.  Use the scroll arrows at the bottom left of the PDF document to scroll through the pages.

MNT032017

SC: April 2017 Oral Arguments before Ky Supreme Court

Click here for link to table of all monthly oral argument calendars at Kentucky’s Administrative Office of the Courts (AOC) from 2005 to date.

Click here for a link to all of the Kentucky Court Report’s postings on Supreme Court argument calendars.

Click here to catch live web streaming oral arguments on the date and time of the argument.  They are not saved for later viewing.

SCOAPR17

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: December 2016 Attorney Discipline Cases

Madison Sewell; Christina Rose Edmonson; David Thomas Sparks; Parker Lee Clifton; Robert Hansford Hoskins; Delbert Keith Pruitt; Jason Elias Dutra; Genon Ginn Hensley; James Neal Tilson; Brian Thomas Canupp; Jeremy Joseph Gubin

  • Click here for the Kentucky Court Report’s index of each month’s summary by year and month.
  • Click here for the Kentucky Court Report’s index of each month’s minutes of all decisions by year and month.
  • Click here for Kentucky Court Report’s index of attorney discipline cases
  • Click here for grants of MDR (motions for discretionary review)

ATTORNEY DISCIPLINE: 

A. In re: Madison Sewell 

2016-SC-000355-CF December 15, 2016 

Opinion and Order of the Court. All sitting; all concur. Sewell tendered an application for admission to the Kentucky Bar without examination, relying on the provision in SCR 2.110 that allows for admission without examination for persons who have been admitted to practice law in another jurisdiction and are actively engaged in the teaching of the law. The Office of Bar Admissions denied his application, noting that Sewell’s employment as a high school pre-law teacher did not satisfy the requirements of the rule. The Supreme Court held that the nature of Sewell’s current employment was irrelevant because SCR 2.110 was inapplicable. Sewell had not practiced law for the requisite time period in a state that has reciprocity with Kentucky. Therefore, his application was untimely and was denied.

B. Kentucky Bar Association v. Christina Rose Edmonson 

2016-SC-000388-KB December 15, 2016 

Opinion and Order of the Court. All sitting; all concur. The charges against Edmondson arose from her failure to respond to discovery in a breach of contract case and her failure to file suit in a loan dispute. The Board noted that Edmondson had previously been suspended for failure to pay bar dues and comply with CLE requirements, a suspension that was ongoing; had been suspended for 180 days for failing to follow through with representation in other cases, which was also ongoing; and had not responded to the current charges. Therefore, the Board recommended that Edmondson be suspended for 181 days to be served concurrently with her 180 day suspension. The Court, noting that the current charges arose during the same time period as Edmondson’s prior charges, agreed with the Board and suspended Edmondson for 181 days to run concurrently with her 180 day suspension.

C. Kentucky Bar Association v. David Thomas Sparks 

2015-SC-000425-KB December 15, 2016 

Opinion and Order of the Court. All sitting; all concur. The Supreme Court entered an order suspending Sparks for 181 days, with 61 days to serve and the remainder probated for two years, with conditions. The Office of Bar Counsel moved to revoke probation and impose the remainder of the suspension because Sparks violated several conditions. Specifically, Sparks received new disciplinary 11

charges and failed to attend required ethics and business-management courses or establish an IOLTA account. Sparks was ordered to show cause why his probation should not be revoked but he failed to respond. Accordingly, the Court granted the Office of Bar Counsel’s motion and suspended Sparks for the remaining 120 days previously probated.

D. Kentucky Bar Association v. Parker Lee Clifton 

2016-SC-000476-KB December 15, 2016 

Opinion and Order of the Court. All sitting; all concur. Clifton was publicly reprimanded by the Supreme Court of Ohio for misconduct in a probate matter in Ohio. The Kentucky Bar Association’s Office of Bar Counsel filed a petition for reciprocal discipline under SCR 3.435. Seeing no reason why Clifton should not be subjected to identical discipline in Kentucky, the Supreme Court granted the petition and publicly reprimanded him.

E. Kentucky Bar Association v. Robert Hansford Hoskins 

2016-SC-000477-KB December 15, 2016 

Opinion and Order of the Court. All sitting; all concur. Hoskins’ license to practice law in Ohio was suspended indefinitely, subject to reinstatement by the Supreme Court of Ohio, due to his misconduct and violation of multiple ethics rules in several cases. The Kentucky Bar Association’s Office of Bar Counsel filed a petition for reciprocal discipline under SCR 3.435. The Supreme Court noted that it does not ordinarily impose indefinite suspensions unless an attorney fails to answer a charge. In this case, Hoskins did answer the charges in Ohio but failed to participate in the proceedings in Kentucky. Nevertheless, the Court held that there was no reason why Hoskins should not be subjected to identical discipline in Kentucky and suspended him indefinitely.

F. Kentucky Bar Association v. Delbert Keith Pruitt 

2016-SC-000487-KB December 15, 2016 

Opinion and Order of the Court. All sitting; all concur. Pruitt was charged with several counts of misconduct relating to his representation of a client in a felony case. Specifically, the Inquiry Commission charged Pruitt with failing to act with reasonable diligence in representing his client; failing to keep his client updated about her case and failing to respond to her requests for information; failing to timely return any unearned portion of a fee upon termination; and failing to response to the bar complaint. The matter was eventually submitted to the Board of Governors as a default case under SCR 3.201(1). A majority of the Board found Pruitt guilty of all four charges. After considering Pruitt’s disciplinary history and his lack of interest in defending himself against the current charge, the Board recommended a 61-day suspension.

Neither the Office of Bar Counsel nor Pruitt sought review by the Court under SCR 3.370(7) and the Court declined to undertake review under SCR 3.370(8). 12

Accordingly, the Court adopted the Board’s decision in full and suspended Pruitt from the practice of law for 61 days.

G. Kentucky Bar Association v. Jason Elias Dutra 

2016-SC-00490-KB December 15, 2016 

Opinion and Order of the Court. All sitting; all concur. Dutra was found guilty of nine counts of misconduct in three separate disciplinary files. All of the charges related to mishandling of client funds. Dutra never filed answers to the charges and the matter was eventually submitted to the Board of Governors as a default case under SCR 3.210. The Board unanimously found Dutra guilty of all counts and, after considering his discipline history, recommended permanent disbarment. Neither the Office of Bar Counsel nor Dutra sought review and the Court declined to undertake review. Accordingly, the Court adopted the Board’s decision in full and permanently disbarred Dutra from the practice of law in Kentucky.

H. Kentucky Bar Association v. Genon Ginn Hensley 

2016-SC-000491-KB December 15, 2016 

Opinion and Order of the Court. All sitting; all concur. Hensley was charged with several counts of misconduct stemming from four separate disciplinary files. The charges against Hensley arose from a misdemeanor conviction for failing to maintain automobile liability insurance and from three separate instances of failing to properly represent clients in bankruptcy matters. Hensley was served with all of the charges via certified mail but did not file an answer in any of the four cases. The Board of Governor voted to find Hensley guilty of all but one count and, after considering her history of discipline, a majority voted to recommend that Hensley be suspended from the practice of law for 181 days.

Neither the KBA’s Office of Bar Counsel nor Hensley sought review by the Supreme Court under SCR 3.370(7) and the Court declined to undertake review under SCR 3.370(8). Accordingly, the Board’s recommendation was adopted under SCR 3.370(9) and Hensley was suspended from the practice of law for 181 days.

I. Kentucky Bar Association v. James Neal Tilson 

2016-SC-000532-KB December 15, 2016 

Opinion and Order of the Court. All sitting; all concur. Tilson was suspended from the practice of law in Arizona for three years and the Kentucky Supreme Court imposed identical reciprocal discipline. Shortly thereafter, additional disciplinary proceedings against Tilson resulted in his permanent disbarment in Arizona. The Kentucky Bar Association’s Office of Bar Counsel filed a petition for reciprocal discipline under SCR 3.435. Seeing no reason why Tilson should not be subjected to identical discipline in Kentucky, the Supreme Court granted the KBA’s petition and permanent disbarred Tilson from the practice of law. 13

J. Brian Thomas Canupp v. Kentucky Bar Association 

2016-SC-000623-KB December 15, 2016 

Opinion and Order of the Court. All sitting; all concur. Canupp asked the Court to enter an order resolving the pending disciplinary proceeding against him by imposing a public reprimand. The charges against Canupp arose from his representation of a client in a wrongful death matter. Canupp admitted that his conduct violated the disciplinary rules as alleged in the charge. He reached an agreement with the Office of Bar Counsel to resolve this matter and asked the Court to enter an order in conformity with their negotiations. The Office of Bar Counsel did not object to Canupp’s motion. After reviewing the allegations, the admitted facts, comparable cases, and Canupp’s previous disciplinary record, the Court concluded that the proposed sanction was appropriate and publicly reprimanded Canupp.

K. Jeremy Joseph Gubin v. Kentucky Bar Association 

2016-SC-000624-KB December 15, 2016 

Opinion and Order of the Court. All sitting; all concur. Gubin was arrested and charged with felony first-degree possession of a controlled substance. He pled guilty and was sentenced to three years of supervised diversion and several conditions, including the condition that he not practice law during the period of diversion. Based on his conviction, Gubin was charged by the Inquiry Commission with having violated SCR 3.130-8.4(b), which state that it is professional misconduct for a lawyer to “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects. Gubin admitted that his conduct violated the rule and reached an agreement with the Office of Bar Counsel to resolve this matter. He petitioned the Supreme Court to enter an order in conformity with the negotiated sanction, which would suspend him from the practice of law for a period of three years and require him to maintain participation in KYLAP and remain illegal-drug and alcohol free during his suspension. The Office of Bar Counsel did not object to Gubin’s motion and asked that it be granted. After reviewing the allegations, the admitted facts, the comparable cases and Gubin’s previous disciplinary history, the Court concluded that the negotiated sanction was adequate and suspended Gubin from the practice of law for three years, with conditions.

SC: December 2016 Monthly Summaries of Published Opinions from Supreme Court of Ky

No decisions for month of November 2016.

Here are the December 2016 summaries of published decisions and attorney disciplinary orders from the Supreme Court of Kentucky which have been prepared by the Administrative Office of the Courts.

  • Click here for the AOC Indexed Summaries by year and month.
  • Click here for the Kentucky Court Report’s index of each month’s summary by year and month.
  • Click here for the Kentucky Court Report’s index of each month’s minutes of all decisions by year and month.

Selected civil, torts, and insurance decisions that were published.

ATTORNEY FEES
Thomas K. Stone v. Pennie Dubarry (now Detorres), et al.
2015-SC-000040-DG December 15, 2016

Opinion of the Court by Justice Noble. All sitting. Minton, C.J.; Hughes and Cunningham, JJ., concur. Venters, J., concurs by separate opinion in which Wright, J., joins. Keller, J., concurs in result only by separate opinion. The Appellant, an attorney, represented the wife in a divorce dissolution proceeding. Unbeknownst to the husband, the Appellant’s employment contract with the wife granted the Appellant a lien “on all Client’s assets, now owned and hereafter acquired to secure payment” of attorney fees and costs. With the Appellant’s assistance in negotiations, the parties eventually entered into a property-settlement agreement. It provided that the husband would retain ownership of the marital residence and pay the wife $20,000 for her interest in the home. The agreement stipulated that those funds would come from refinancing the property. The Appellant never advised the husband during negotiations that he had a contractual lien against his client’s property as security for payment of his fee. The trial court entered a decree of dissolution incorporating the property-settlement agreement. Thereafter, the wife failed to pay the Appellant his fee, and he filed a notice of a lien in the amount of $7,142.82 against the marital residence. The trial court granted the husband’s motion to release the lien, and the Court of Appeals affirmed.

Having granted discretionary review, the Supreme Court affirmed. It held that the statute governing attorney-fee liens, KRS 376.460, does not apply to property assigned or divided in divorce proceedings. The Court further held that although an attorney may, in the alternative, obtain a contractual lien on marital property though a contract of employment, such liens will not be effective against property belonging to third parties unless they have timely notice of the lien. Because the Appellant gave the husband no notice of his contractual lien on the wife’s interest in the marital residence, the trial court was correct to release it once the husband became the property’s sole owner.

TRIAL  EVIDENCE.  SEPARATION OF WITNESSES RULE.

Kathy McAbee v. Darren C. Chapman, M.D.
2014-SC-000555-DG December 15, 2016

Opinion of the Court by Justice Hughes. All sitting; all concur. This medical malpractice action against a surgeon resulted in a jury verdict for the defendant. Upholding that result in an unanimous opinion, the Supreme Court agreed with the plaintiff/appellant that the trial court had misapplied the separation of witnesses rule (Kentucky Rule of Evidence 615) when it excepted from the rule two of the defendant’s expert witnesses without requiring an adequate showing of necessity for the expert witnesses’ presence in the courtroom during the testimony of other witnesses. The Supreme Court held, however, that having reviewed the trial testimony in its entirety the error was harmless.

GOVERNMENTAL IMMUNITY
Kentucky River Foothills Development Council, Inc. v. Cathy Phirman, Etc.., et al.
2015-SC-000244-DG December 15, 2016

Opinion of the Court by Justice Keller. All sitting. Minton, C.J.; Cunningham, Noble and Wright, JJ., concur. Venters, J., concurs in result only by separate opinion in which Hughes, J., joins. Kentucky River is a community action agency which receives and distributes federal block grants in order to alleviate poverty by providing employment opportunities and improving living conditions of the poor. One of the entities Kentucky River administers is Liberty Place Recovery Center for Women, an in-house peer-based substance abuse treatment facility. Melissa Steffen, who suffered from bipolar disorder, had been approved for parole but could not be released from prison until she found a suitable residence. In order to facilitate Melissa’s release from prison, her mother arranged for Melissa to be placed at Liberty Place. While Melissa was at Liberty Place, she ran out of her medication and her mental state began to deteriorate to the point that she left the facility. Following a number of alleged mis-steps by Liberty Place staff, Melissa committed suicide. Her estate filed suit against Liberty Place and Kentucky River. Kentucky River filed a motion for summary judgment arguing that it was entitled to governmental immunity. Relying on Comair, Inc. v. Lexington-Fayette County Airport Corp., 295 S.W.3d 91 (Ky. 2009), the circuit court denied Kentucky River’s motion. The Court of Appeals affirmed, finding that Kentucky River could not pass Comair’s “parent test” because it had not been created by an immune parent.

The Supreme Court affirmed. The majority noted that the Comair test contains two parts: whether the agency is the “child” of an immune “parent;” and whether the agency performs an integral state function. The majority noted that the circuit court and the Court of Appeals focused on Kentucky River’s parentage when the primary problem is Liberty Place’s function. The majority noted that Kentucky River argued it was performing a governmental function – alleviating poverty. However, the majority held that, if the alleviation of poverty is a governmental function, providing drug rehabilitation is not because providing drug rehabilitation alleviates substance abuse, not poverty. Therefore, Kentucky River did not meet the second prong of the Comair test. In his separate concurring opinion, Justice Venters stated that none of Kentucky River’s operations would be entitled to immunity because Kentucky River was performing a federal function not a state function.

December2016

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