COA: January 6, 2017 Court of Appeals Decisions (Minutes)(1 through 23)(5 opinions designated to be published)

The Court of Appeals posted  23 decisions this week, numbered 1 through 2 with 5 decisions designated for publication.

Published Court of Appeals Decisions

Here are the links to the full text of each published case for this week with a short synopsis or topic listed for each.

3.  Lien Priority on Property
Hays v. Nationstar Mortgage LLC
Court of Appeals Published Opinion REVERSING AND REMANDING Jefferson Cir. Ct.

STUMBO, JUDGE: Carroll L. Hays appeals from an In Rem Judgment and Order of Sale rendered by the Jefferson Circuit Court. Hays argues that the Court improperly applied Kentucky Legal Sys. Corp. v. Dunn, 205 S.W.3d 235 (Ky. App. 2006), to determine that the lien of Plaintiff/Appellee Nationstar Mortgage LLC is superior to a prior Judgment Lien filed by Hays. Finding error, we REVERSE AND REMAND the Order on appeal.

11.  Qualified Official Immunity for School Official’s Discretionary Acts
Turner v. Ritchie (this link has been corrected. link in minutes is broken)
Court of Appeals Published Opinion REVERSING AND REMANDING Breathitt Cir. Ct.

J. LAMBERT, JUDGE: Interlocutory appeal taken by officials in the Breathitt County school system from trial court order denying their request for qualified official immunity in their individual capacities. Having carefully considered the record and the applicable case law,  COA held  their actions were discretionary and that they were entitled to qualified official immunity.   School officials failed to report to law enforcement sexting and inappropriate text message between male school teacher and several of his students.  The teacher later pled guilty to rape, sodomy, sexual abuse, and distribution of pornographic images to minors, and he assumed that this was all related to  only one of students.  A civil suit was filed on behalf of the female student against the school officials for negligence; negligent hiring, training, supervision, and retention; violation of a special relationship; violation of the Restatement (Second) of Torts § 314A; negligent and intentional infliction of emotional distress; violation of §§ 1-3 of the Kentucky Constitution; and breach of contract.  At the relevant times in the matter before this Court, Breathitt County Schools had in place policies addressing the supervision of students.

12. Premises Liability.
McCoy v. Family Dollar Store of Kentucky
Court of Appeals Published Opinion AFFIRMING Martin Cir Ct

McCoy filed a complaint on May 13, 2014, seeking $1,312,327.46 damages from Family Dollar and R&J for injuries she sustained when she tripped on a wheel stop and fell in the parking lot of the Family Dollar store in Inez, Kentucky.  Family Dollar was a tenant with another Defendant the landlord who constructed the parking lot.   There was testimony that the wheel stops were marked yellow when built and unchanged until the fall.

First, the plaintiff’s expert’s report was never properly before the trial court.  Second,

“We agree with Family Dollar and R&J that the circuit court properly held that their duty of care was not breached by the presence of the wheel stop in the parking lot. The wheel stop was not defective or damaged, and it did not create an unreasonably dangerous condition necessitating the need to warn any invitees about, or correct, the condition. There was no evidence in the record that wheel stops were unreasonably dangerous, and McCoy failed to place into evidence any testimony, an affidavit, or even a report establishing this assertion. Accordingly, no duty arose on the part of either Family Dollar4 or R&J to warn McCoy or to correct the condition, and there is no evidence that the injury McCoy sustained was foreseeable. Additionally, McCoy testified that she was not distracted and that there was nothing slick or any debris in the parking lot. Therefore, the circuit court did not commit any error as a matter of law in granting summary judgment and dismissing McCoy’s complaint.”

16.  Nursing Home Admission and Mandatory Arbitration Agreement
Diversicare LeasingCorp. v. Adams, Executor of Est. of Pearl Adams
Court of Appeals Published Opinion AFFIRMING Elliott Cir Ct.
COA held  the circuit court properly declined Diversicare’s request to reform Readmission Agreement 2 to incorporate an earlier admission agreement that contained an arbitration clause. It is purely speculative as to which document was meant to be incorporated into Readmission Agreement 2, be it one of the earlier admission agreements or an admission agreement dated November 29, 2006, which was never produced. Because Diversicare was unable to establish with any certainty which document was intended to be incorporated by reference in Readmission Agreement 2 and because the admission agreement did not otherwise contain an arbitration clause, we must hold that the circuit court did not err as a matter of law in declining to enforce an arbitration agreement purportedly referenced in an unspecified document.

17.  Wrongful death. 911 Dispatcher.  Duty of public official and relationship test.
McCuiston, Adm’or of Est. of Joyce McCuiston v. Butler
Court of Appeals Published Opinion AFFIRMING Henderson Cir Ct

Ms. McCuiston can appropriately be classified as a member of the general public with whom Butler interacted as a 911 dispatcher. Without a special relationship, Butler’s action fell under the “public duty” doctrine, which does not make public officials guarantors of public safety with a universal duty of care to protect the general public from harm or accident. Butler did not establish a “special relationship” with Ms. McCuiston, and therefore, he did not have a duty of care to her and was protected from liability by the public duty doctrine. Without any legal duty, there can be no wrongful death action. Although Ms. McCuiston’s death is a tragedy, it is not one for which Butler or the City of Henderson can be held liable.

Having determined that Butler had no special relationship with Ms. McCuiston, and thus, cannot be liable in a wrongful death action, the remaining issues are rendered moot.


Selected Not To Be Published Decisions Dealing with tort, insurance and civil procedure

2.  Peremptory challenges and involuntary plaintiff.
Cayce v. Sumner
COA Not to Be Published Opinion AFFIRMING Christian Cir. Ct.

“The Court of Appeals should not substitute its judgment for that of the trial judge in determining whether antagonistic interests exist for the purpose of awarding peremptory challenges in the absence of an abuse of discretion.” Sommerkamp v. Linton, 114 S.W.3d 811, 814-15 (Ky. 2003). “On appeal, the question is not whether the reviewing court would have decided the issue differently, but whether the findings of fact are clearly erroneous, the opposite result is compelled or the trial judge abused his discretion.” Id. at 815 (citations omitted). “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).

Although Sommerkamp concerned medical negligence and co-defendants, the factors are illustrative for our purposes.

Generally, there are three elements to be considered in determining if coparties have antagonistic interests.
They are 1) whether the coparties are charged with separate acts of negligence; 2) whether they share a common theory of the case; and 3) whether they have filed cross-claims. Additional important factors are whether the defendants are represented by separate counsel; whether the alleged acts of negligence occurred at different times; whether the defendants have individual theories of defense; and whether fault will be subject to apportionment. All of these factors are to be weighed by the trial court in determining if the defendants have antagonistic interests and thus are entitled to separate peremptory challenges.

In the case at hand, Ms. Gonzales and Ms. Sumner pled different tort claims than Ms. Wasson and these parties were represented by separate legal counsel. Also, the court found as relevant that the Cayces would only have a finite amount of personal resources to use to satisfy any judgment entered against them individually; therefore, some parties might not be able to recover any damages. We agree with the trial court that these factors indicate that Ms. Gonzalez and Ms. Sumner had antagonistic interests against Ms. Wasson at the time of jury selection, thereby justifying the allocation of separate peremptory challenges.

13.  Heirs bound by estates property settlement.
Sullivan v. McCown
COA Not to Be Published Opinion AFFIRMING Pike Cir Ct.

20.  Failure to have experts in med mal case result in dismissal by court and affirmed on appeal.
Hall v. Harreld
COA Not to Be Published Opinion AFFIRMING Jefferson Cir Ct

22. Statute of limitations expired in claim again home inspector
Rabe v Frohn
COA Not to Be Published Opinion  AFFIRMING Boone Cir Ct.


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.”)

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, amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.

For links to all our posts on the minutes of the Court of Appeals, then click here.  Click here for AOC minutes for this week.

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

MNT01062017

SC: May 5, 2016 Supreme Court of Ky Decisions (Minutes 56-86)

Two published tort and insurance cases. One dealing with affirming the award of punitive damages in the Emergency Medical Treatment and Active Labor Act where hospital ER turned a homeless man away three times and on his last visit made it clear for him not to come back.  The other decision involved Allstate and the No Fault Act's notice of first renewal requirements were met.

Second Laurel County Courthouse.  Completed in 1885.  Louisville architects H.P. McDonald; built by John W. Mullins at cost of $16,350.  This courthouse was destroyed by fire on Dec. 9, 1958.

Second Laurel County Courthouse. Completed in 1885. Louisville architects H.P. McDonald; built by John W. Mullins at cost of $16,350. This courthouse was destroyed by fire on Dec. 9, 1958.

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 organized as monthly posts.

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:

Published decisions–

56.   Punitive Damages.
Saint Joseph Healthcare, Inc. vs. Larry O’Neil Thomas
Supreme Court of Kentucky Published Opinion AFFIRMING COA
Questions Presented:  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.

57.  Administrative Law.
Jerry Jamgotchian vs. Kentucky Horse Racing
Supreme Court of Kentucky Published Opinion AFFIRMING
Questions Presented: Administrative Law. Constitutional Law. The question presented is whether “claiming jail” regulation 810 KAR 1:015 § 1(6) is unconstitutional as violative of the “dormant” Commerce Clause of the United States Constitution.

58.  Retaliatory Discharge.
John Charalambakis vs. Asbury University
Supreme Court of Kentucky Published Opinion AFFIRMING
Questions Presented: Employment Law. Retaliatory Discharge. Issues include the propriety of recovery for retaliation absent an underlying violation of the Kentucky Civil Rights Act.

59.  Criminal Law.
Stephen Williams vs. Commonwealth of Kentucky
Supreme Court of Kentucky Published Opinion AFFIRMING
Questions Presented: Murder, first-degree burglary, and tampering with physical evidence-Life without the possibility of parole for 25 years. First-degree burglary conviction affirmed where the evidence showed the defendant remained unlawfully in the victim’s residence and, after the shooting, left with a shotgun. Unanimous verdict. Sufficient evidence of tampering with physical evidence. Commonwealth’s error in failing to give notice of a witness testifying at a co-defendant’s trial, in the admission of hearsay testimony and in failing to test for gun-shot residue did not warrant reversal of the case.

60.  Wills and Estates.
John Wesley Bays vs. Kristie D. Kiphart, Trustee
Supreme Court of Kentucky Published Opinion AFFIRMING
Questions Presented: Wills. Renunciation. Fraud on Curtesy Rights. May life insurance be “surplus property” under KRS 392.020?

61.  Criminal Law.  Death Penalty.
Karu Gene White vs. Commonwealth of Kentucky 
Supreme Court of Kentucky Published Opinion AFFIRMING IN PART, REVERSING IN PART AND REMANDING
Questions Presented:  Death Penalty. Post Conviction. Intellectual Disability Claim. Case remanded to the trial court to order the Kentucky Correctional Psychiatric Center (KCPC) to perform a psychological evaluation of Mr. White.

62.  Criminal Law. Burglary.
Curtis McGruder vs. Commonwealth of Kentucky
Supreme Court of Kentucky Published Opinion AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
Questions Presented: First-degree burglary, Receiving Stolen Property in excess of $500 and PFO 2nd– 20 years. First-degree burglary conviction reversed where the defendant was found in possession of a small hatchet, not legally a deadly weapon.

63.  Family Law.  Child support. Disability. Deviation.
Michelle Carver (Butler) vs. Lance G. Carver
Supreme Court of Kentucky Published OpinionAFFIRMING IN PART, REVERSING IN PART, AND REMANDING
Questions Presented:  Artrip v. Noe, 311 S.W.3d 229 (Ky. 2010). Issues include: (1) whether the trial court committed reversible error by failing to follow Artrip, which holds that disability payments made to a child because of one parent’s disability cannot be used to reduce the child support obligation of the other parent; and (2) whether the trial court properly deviated from the child support guidelines due to the disabled father’s living expenses.

64.  Insurance.  Kentucky Motor Vehicle Reparations Act.  UM/UIM/PIP
Allstate Ins. Co. vs. Craig T. Smith
Supreme Court of Kentucky Published Opinion REVERSING
Questions Presented:  Insurance. MVRA. KRS 304.20-040(13) “Notice of First Renewal” Requirement. The question is whether, although the insured never requested or paid any premium for optional KRS 304.39-320 underinsured motorist coverage, the insurer adequately complied with the KRS 304.20-040(13) “notice of first renewal” requirement of “a notice stating in substance that added uninsured motorists, underinsured motorists, and personal injury protection coverages may be purchased by the insured.”

65.  Criminal Law. Ineffective Assistance of Counsel
Commonwealth of Kentucky vs. David McKee
Supreme Court of Kentucky Published Opinion REVERSING
Questions Presented: Criminal Law. RCr 11.42. Ineffective Assistance of Counsel. Issues include whether the defendant met his burden of proving prejudice under RCr 11.42 when he alleged that: (1) counsel failed to obtain evidence prior to trial; and (2) the evidence may have allowed the defense’s accident reconstructionist to provide a favorable opinion regarding the cause of the fatal accident.

66.  Criminal Law.  Criminal Syndicate.
Commonwealth of Kentucky vs. Caton Kamil Jones
Supreme Court of Kentucky Published Opinion REVERSING
Questions Presented:   Does evidence of organizing and funding “credit mules” to procure discounted cell phones for resale (with no intent to fulfill the two-year contracts) suffice to present a jury question of engaging in organized crime as proscribed by KRS 506.120?

67.  Family Law. Child support.  Income exceeding Guidelines.
Rebekah McCarty vs. Kenneth Faried
Supreme Court of Kentucky Published Opinion REVERSING
Questions Presented:  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.

68. Criminal Law. Police Questioning of a Defendant Represented by Counsel on Other Charges.
Sherman Keysor vs.  Commonwealth of Kentucky 
Supreme Court of Kentucky Published Opinion REVERSING and REMANDING
Questions Presented:   Issues involve the impact of Montejo v. Louisiana, 556 U.S. 778 (2009) (overruling Michigan v. Jackson, 475 U.S. 625 (1986)) upon Kentucky cases dating back to Linehan v. Commonwealth, 878 S.W.2d 8 (Ky. 1994).

69. Kentucky Civil Rights Act. KRS 344.270. Election of Remedies.
Janet Owen vs. University of Kentucky
Supreme Court of Kentucky Published Opinion REVERSING AND REMANDING
Questions Presented: Election of Remedies. Whether an employee who receives an order of dismissal from the Kentucky Commission on Human Rights and does not appeal from that order may subsequently file a lawsuit in circuit court based on the same claim. KRS 344.270.

70.  Family Law.  Domestic Relations. Grandparent Visitation.
Larry Massie vs. Deborah Navy
Supreme Court of Kentucky Published Opinion REVERSING AND REMANDING
Questions Presented: Issues include the applicability of Walker v. Blair, 382 S.W.3d 862 (Ky. 2012) and the “modified best interests” standard when a child’s custodians are a paternal uncle and aunt.


Selected tort, insurance and procedural decisions designated not to be published.

85.  Appeals.  Supersedeas Bond’s Adequacy and Writ of Prohibition Barring Sale of Property.
Roger Stamper, Trustee, vs. Hon. Linda Rae Bramlage, Judge
Attorneys practice family law might find this case interesting as funds dissipated and hidden during trust were tracked down.

Download (PDF, Unknown)

 

 

 

 

NEWS: Legal News You Can Use – May 25, 2015

State senator acquitted of DUI; More on the bourbon theft; Heleringer's Top Ten Best SCOTUS decisions; $12.8 million Walmart Verdict; $5 million TARC verdict

 

Kentucky Senator Smith acquitted of DUI charge, convicted of speeding

Smith was ordered to pay a $40 fine and court costs because of the speeding charge. Smith’s license, which had been taken away because he did not take a breathalyzer test, will be returned with the not guilty verdict on the DUI charge. It took the jury about 10 minutes to acquit Smith, who was arrested on the very first day of the 2015 legislative session.

Several defendants in Central Ky. bourbon-theft, steroid-trafficking ring plead not guilty

http://www.courier-journal.com/story/life/food/spirits/bourbon/2015/05/22/bourbon-case-plead-guilty-steroid-charge/27771747/FRANKFORT, Ky. – The attorney for the alleged ringleader of a bourbon theft and steroid trafficking ring questioned Friday whether her client Gilbert “Toby” Curtsinger can get a fair trial with the attention the case is getting.

Curtsinger pleaded not guilty Friday to Kentucky’s equivalent of racketeering — engaging in organized crime — during a Franklin Circuit Court hearing where his attorney Whitney Lawson said she has “grave concerns” whether impartial jurors can be found. The case has been featured in publications such as The Wall Street Journal and The Washington Post.  Curtsinger was one of five defendants in the bourbon theft ring case in court Friday for arraignment.

Heleringer | Another Supreme Court top 10 list

http://www.courier-journal.com/story/opinion/columnists/2015/05/19/heleringer-another-supreme-court-top-list/27576259/Bob Heleringer Columnist(Photo: Beth Smith)

While awaiting the U.S. Supreme Court’s momentous decision in Kentucky’s same-sex marriage case (Bourke v. Beshear) — some with trepidation, others with guarded optimism – I profiled in my last column the high court’s top ten worst decisions, as determined by a semi-distinguished panel of legal scholars: me, myself, and I. As promised, here are the consensus top ten best Supreme Court decisions of all time according to the same panel.

10. Helvering v. Davis (1937): the older I get, the better this case looks. The court upheld, 7-2, the constitutionality of the Social Security Act as not violative of the Tenth Amendment, the catch-all amendment in our Bill of Rights that reserves to the states any authority not delegated to the federal government by our Constitution. In layman’s terms, at the height of the Great Depression, at least seven justices said they weren’t going to find a reason in the Constitution to strike down legislation that promised America’s older citizens their government wasn’t going to allow them to starve to death in their last years.   Read more…..

 

Some older posts I missed:

Man who lost leg wins lawsuit against Walmart

A Kentucky jury has returned a $12.8 million verdict against Walmart for installing a mismatched tire on a truck that ran over a construction worker, rendering him a quadriplegic and forcing the amputation of one of his legs. The verdict of $12,797,990 for Shaun Joseph included $7.5 million for pain and suffering. Joseph, then 29, was standing on the side of the road in Paintsville on Dec. 1, 2010, when he was struck by a truck driven by Nicola Liebsch, who was taking her daughter to the library, according to the report.

 

Man hit by TARC bus awarded nearly $5 million by jury

A jury has awarded nearly $5 million to a courier for a Louisville law firm who suffered a traumatic brain injury when he was hit by a TARC bus.
After a nine-day trial and nearly four hours of deliberations, the Jefferson Circuit Court jury awarded $4,951,073 to Adam Bibelhauser, who alleged he was in a crosswalk at Fourth and Market streets on Sept. 8, 2008, when he was struck.
Bibelhauser, then 27, worked full time for Stites & Harbison and was pursuing a master’s degree from the University of Louisville. His attorneys, Doug Farnsley and Julie McDonnell, who practice at Stites, said he was unable to complete his degree.

 

SC: APRIL 2015 Monthly Summaries of Published Opinions from Supreme Court of Ky

Links and summaries of this month's published decisions from the Supreme Court of Kentucky which have been prepared by the Administrative Office of the Courts.

Click here for the AOC’s archived summaries of monthly published decisions for the Kentucky Supreme Court.

Click here for the monthly summaries of published decisions of the Kentucky Supreme Court tagged in the Kentucky Court Report’s posts.

This month’s summary of published decisions:

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SC Order 2014-21: Order Amending Family Court Rules of Procedure and Practice (FCRPP), dtd Nov. 7, 2014

Order Amending Family Court Rules of Procedure and Practice (FCRPP) 2014:21

Here is the link to the order at the AOC (not OCR readable).

Here is the order after I converted it to a searchable OCR format using Acrobat (c).

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Oct. 2013 Summary of Published Decisions from Court of Appeals

Oct. 2013 Summary of Published Decisions

Since it appears the “monthly” summaries from the Court of Appeals are a victim of budgetary constraints with the last summary from COAKY in September 2013, I decided to give a shot at a rudimentary posting of the published decisions based upon my short notes for each set of minutes. This will not be as good as what the staff attorneys did at the AOC, but it’s better than “nuttin”.

ARBITRATION/MEDIATION

975. Power of attorney included authority to sign nursing home agreement to arbitrate disputes.
Kindred Healthcare, Inc. vs. Cherolis
COA, PUB 10/11/2013
Daviess County

MAZE, JUDGE: Kindred Healthcare, Inc. and associated entities (collectively “Kindred”) appeal from an order of the Daviess Circuit Court denying its motion to compel arbitration of claims brought by Artie Cherolis, as Executrix of the Estate of Thelma Fuqua, Deceased. Kindred argues that the trial court erred in finding that Cherolis lacked authority under a power of attorney to execute an arbitration agreement on her mother’s behalf. Kindred also contends that the restrictive interpretation of an agent’s authority to enter into arbitration contracts violates the Kentucky Uniform Arbitration Act, the Federal Arbitration Act, and Section 250 of the Kentucky Constitution. We conclude that the facts of this case are distinguishable from those of the recent decision by the Kentucky Supreme Court in Ping v. Beverly Enterprises, 376 S.W.3d 581 (Ky. 2012), because the power of attorney in this case permitted Cherolis to execute the arbitration agreement. Consequently, the trial court erred by denying Kindred’s motion to compel arbitration. Hence, we reverse and remand for additional proceedings.

CONTACTS

970. Commercial Law. Perfecting Security Interest & Collateral applying “inquiry test”.
Bishop vs. Alliance Banking Co.
COA, Pub. 10/11/2013
Estil County

TAYLOR, JUDGE: Richard Bishop brings this appeal from a September 7, 2012, summary judgment of the Estill Circuit Court in favor of Alliance Banking Company (Alliance Bank). We affirm.

Bishop contends that the circuit court erred by determining that the financing statement sufficiently described the Case backhoe and that Alliance Bank held a perfected security interest in the Case backhoe. For the following reasons, we disagree.

Under the Kentucky Uniform Commercial Code (U.C.C.), a description of collateral is sufficient “if it reasonably identifies what is described” in the financing statement or security agreement filed with the Secretary of State. KRS 355.9-108(1); KRS 355.9-504. To determine whether collateral is so reasonably identified, the Court utilizes an “inquiry test:”

[A] description of collateral is sufficient for either a security agreement or a financing statement if it puts subsequent creditors on notice so that, aided by inquiry, they may reasonably identify the collateral involved.

Nolin Prod. Credit Ass’n v. Canmer Deposit Bank, 726 S.W.2d 693, 697 (Ky. App. 1986).

In utilizing the inquiry test herein, the record reveals that Alliance Bank filed a financing statement with the Secretary of State on February 5, 2010.

994.  Burial contract, breach of contract claim.
Keaton v. G.C. Williams Funeral Home, Inc.
COA PUB 10/25/2013
Jefferson

NICKELL, JUDGE: Eula Keaton, Eric Hines, Thaddeus Hines, Rodney Hines, and Martin Hines (collectively “Family”) have appealed from the Jefferson Circuit Court’s grant of partial summary judgment in favor of G.C. Williams Funeral Home, Inc., and Green Meadows Cemetery, LLC, on the Family’s claims related to the burial of their mother, Gwendolyn Gamble. G.C. Williams has cross-appealedfrom the trial court’s denial of their motion for summary judgment on the Family’s breach of contract claim.

The Family filed suit against G.C. Williams and Green Meadows on December 10, 2010, setting forth claims for negligence, intentional infliction of emotional distress (IIED), fraud, negligent misrepresentation, breach of contract, and Kentucky Consumer Protection Act (KCPA)2 violations.3 Following a period of discovery, G.C. Williams and Green Meadows moved for summary judgment. The Family also moved for partial summary judgment. On January 24, 2012, the trial court granted summary judgment in favor of G.C. Williams and Green Meadows on all counts except the breach of contract claim against G.C. Williams. This appeal and cross-appeal followed.

On appeal, the Family contends the trial court erred in granting summary judgment on their negligence, IIED, and KCPA claims.4 The Family argues sufficient proof was presented to withstand summary judgment on each of these claims and the trial court improvidently granted judgment to G.C.  Williams and Green Meadows. On cross-appeal, G.C. Williams contends the trial courterred in failing to grant summary judgment on the Family’s breach of contract claim. Following a careful review, we affirm.

 

CRIMINAL LAW

979.  Criminal Law.
Boone vs. Commonwealth of Kentucky
COA PUB 10/18/2013
Mason

ACREE, CHIEF JUDGE: Appellant Phillip Boone appeals the Mason Circuit Court’s July 11, 2011 Judgment and Sentence by which he was convicted of first- degree sexual abuse and sentenced to two years’ imprisonment. On appeal, Boone raises numerous trial issues which he claims resulted in error and mandate a new trial. Following a careful review, we affirm in part, reverse in part, and remand for additional proceedings consistent with this opinion.

Before this Court, Boone raises these four claims of error: (1) the circuit court erred in denying his motion for a directed verdict because there was insufficient evidence that Boone was a person in a position of authority or position of special trust over the victim; (2) his right to an unanimous verdict was violated when the circuit court issued jury instructions on theories unsupported by the evidence; (3) the circuit court failed to instruct the jury on two lesser-included   offenses; and (4) the circuit court erroneously ordered Boone, an indigent person, to pay court costs.

 

FAMILY LAW

938. Family Law.  Judges award of attorney fees was abuse of discretion and did not have jurisdiction.
Kevin Nesselhauf vs. Christopher Haden
Jefferson Circuit Court
COA Published 10/4/2013

MAZE, JUDGE: Appellants, Kevin and Kelli Nesselhauf (hereinafter “the Nesselhaufs”), appeal from the order of the Fayette Circuit Court awarding attorney’s fees to Appellees, Gregory Baltimore and Ryan Haden, stemming from a custody matter to which they were parties. The Nesselhaufs contend that the trialcourt erred in awarding said fees. We find that the trial court’s order constituted an abuse of discretion, as the court did not have jurisdiction over the issue of attorney’s fees. Therefore, we reverse.

 

 

Kentucky Court of Appeals Oral Argument Calendar for October 2013

 

Louisville Skyline from Downtown Office Building Daylight (using iPad)

Louisville Skyline from Downtown Office Building Daylight (using iPad)


The Court of Appeals of Kentucky will be hearing oral arguments on cases for 
October,  2013, as follows:

  • Oct. 8   – Frankfort
  • Oct. 17 – Louisville
  • Oct. 22 – Frankfort

Tort, insurance and civil cases of interest to injury lawyers are, as follows.  Click on the link for the case name to go to the AOC web site for the case information listing.  Click on case for “case information” from Court of Appeals’ web site.

  • Oct. 17; Louisville
    TONIA T. FREEMAN v BECKER LAW OFFICE, PLC
    In a legal malpractice action, whether trial court: 1) misapplied the “case within a case” trial procedure; 2) erred in permitting attorney experts to testify in a premises liability action; 3) erred in admitting evidence of appellant’s prior non-compliance with medical orders; and 4) properly instructed the jury.

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