COA 2009 Minutes: September 18, 2009 (Nos. 952-978)

COA 2009 Minutes: September 18, 2009 (Nos. 952-978)

  • 28 decisions
  • 6 published

PUBLISHED DECISIONS WITH LINKS TO FULL TEXT

958
RICE V. STEELE
OPINION DISMISSING IN PART; VACATING IN PART AND REMANDING
** ** ** ** ** BEFORE: ACREE AND LAMBERT, JUDGES; HARRIS,1 SENIOR JUDGE.
LAMBERT, JUDGE: Sonia Rice appeals the dismissal of five of her six claims against David R. Steele, as Administrator of the Estate of her mother, Dorothy Stephens (hereinafter “the Estate”). The Estate cross-appeals the partial summary judgment entered in favor of Sonia on her claim for restitution of funeral expenses. The Estate additionally moves this Court to dismiss Sonia’s appeal for failure to join necessary parties. For the reasons stated herein, we grant the Estate’s motion to dismiss Sonia’s appeal, and we vacate and remand the partial summary judgment entered in favor of Sonia.

962
COMBS V. MULLINS
OPINION AFFIRMING
** ** ** ** ** BEFORE: LAMBERT, MOORE, AND VANMETER, JUDGES.
MOORE, JUDGE: Earl Ray Combs appeals from an order by the Perry Circuit Court dismissing his claim for an interest in property. After a careful review of the record, we are bound by precedent to affirm. * * *

This Court recently applied the retroactive effect of Pendleton II in
Turner v. Perry County Coal Corp., 242 S.W.3d 658 (Ky.App. 2007). In Turner, a case factually similar to the case at hand, our Court held that the decision regarding retroactivity in Pendleton II applied to Turner’s case and concluded that the state's interest in finality provided justification for barring this type of claim. Turner, 242 S.W.3d at 661.
Relying on Reed v. Campbell, 476 U.S. 852, 106 S.Ct. 2234, 90 L.Ed. 2d 858 (1986), which was decided after the Kentucky Supreme Court rendered Pendleton II, Earl Ray argues that courts cannot “develop a hard and fast rule regarding retroactivity” without violating the Equal Protection Clause of the Fourteenth Amendment. He argues that Reed requires an analysis into finality This Court recently applied the retroactive effect of Pendleton II in
Turner v. Perry County Coal Corp., 242 S.W.3d 658 (Ky.App. 2007). In Turner, a case factually similar to the case at hand, our Court held that the decision regarding retroactivity in Pendleton II applied to Turner’s case and concluded that the state's interest in finality provided justification for barring this type of claim. Turner, 242 S.W.3d at 661.
Relying on Reed v. Campbell, 476 U.S. 852, 106 S.Ct. 2234, 90 L.Ed. 2d 858 (1986), which was decided after the Kentucky Supreme Court rendered Pendleton II, Earl Ray argues that courts cannot “develop a hard and fast rule regarding retroactivity” without violating the Equal Protection Clause of the Fourteenth Amendment. He argues that Reed requires an analysis into finality

964
GRAY V. FIRST STATE FINANCIAL, INC.
OPINION AFFIRMING
** ** ** ** ** BEFORE: LAMBERT, MOORE AND VANMETER, JUDGES.
VANMETER, JUDGE: Teresa Gray appeals from a summary judgment entered by the Bell Circuit Court in favor of appellees First State Financial, Inc.,1 and Charles Bishop. We affirm. * * *

The Restatement (Second) of Contracts § 90(1) (1981) describes the concept of promissory estoppel as follows:
A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires. See Meade Constr. Co. v. Mansfield Commercial Elec., Inc., 579 S.W.2d 105 (Ky. 1979). As stated in Rivermont Inn, Inc. v. Bass Hotels & Resorts, Inc., 113 S.W.3d 636, 642 (Ky.App. 2003), “[p]romissory estoppel can be invoked when a party reasonably relies on a statement of another and materially changes his position in reliance on the statement.” See also Stephenson v. State Farm Ins. Co., 217 S.W.3d 878, 880 (Ky.App. 2007).

966
BROWN V. COMMONWEALTH
OPINION AFFIRMING
** ** ** ** ** BEFORE : LAMBERT AND TAYLOR, JUDGES; HENRY,1 SENIOR JUDGE.
LAMBERT, JUDGE: Lindsay R. Brown pled guilty to several crimes in two separate criminal cases. On January 23, 2007, Brown pled guilty to the following crimes in Case No. 06-CR-00677: (1) five counts of second-degree criminal possession of a forged instrument (checks); (2) one count of receiving stolen property under $300; and (3) one count of giving a false name (hereinafter “the felony crimes case”). On May 8, 2007, Brown pled guilty to the following misdemeanors in Case No. 06-CR-00382: (1) criminal facilitation to first-degree possession of a controlled substance (marijuana); and (2) complicity to commit possession of drug paraphernalia (hereinafter “the misdemeanor crimes case”).

969
REED V. COMMONWEALTH
OPINION AFFIRMING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; VANMETER, JUDGE; LAMBERT,1 SENIOR JUDGE.
LAMBERT, SENIOR JUDGE: Appellant, Billy Dwayne Reed, appeals from his conviction, entered upon a jury verdict, for second-degree manslaughter. The conviction arose from a motor vehicle fatality. In this court, Appellant asserts that the trial court erred in admitting certain evidence concerning his medical treatment. He also argues that the recording of a 9-1-1 call from an anonymous caller was erroneously admitted in evidence. Finally, Appellant contends that the trial court erred in denying his motion to quash the indictment and dismiss the charge of wanton murder based on his constitutional claim that wanton murder under KRS 507.020(1)(b) is void for vagueness. * * * admission of the 9-1-1 call did not violate the rule in Davis nor the Sixth Amendment Right of Confrontation as it was not testimonial.
975
LEBLANC V. DORTEN
OPINION AFFIRMING
** ** ** ** ** BEFORE: ACREE AND LAMBERT, JUDGES; HARRIS,1 SENIOR JUDGE.
LAMBERT, JUDGE: Mark LeBlanc appeals from a jury verdict in favor of Joseph Dorten. He specifically contends that the trial court erred in excluding witnesses and evidence submitted after a court ordered deadline, and he argues that the trial court improperly denied his motion for a new trial. After careful review, we affirm.

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