COA 2009 Minutes: September 4, 2009 (Nos. 892-923)

COA 2009 Minutes: September 4, 2009 (Nos. 892-923)

  • 42 decisions
  • 12 published

PUBLISHED DECISIONS WITH LINKS TO FULL TEXT

883
METRO LOUISVILLE/JEFFERSON COUNTY GOV'T V. ABMA
OPINION
AFFIRMING IN PART; VACATING IN PART; AND REMANDING
** ** ** ** **
BEFORE: ACREE AND NICKELL, JUDGES; KNOPF,2 SENIOR JUDGE.
NICKELL, JUDGE: Metro Louisville/Jefferson County Government and the City
of Louisville, Kentucky (collectively, the City)3 appeal from three separate rulings4
of the Jefferson Circuit Court, claiming first, that partial summary judgment was
improvidently granted to two groups of firefighters, the Hasken Appellees and the
Kurtsinger Appellees, because the City did not breach a series of Collective
Bargaining Agreements (CBA) it had negotiated with the International Association
of Firefighters, Local 345; second, that the applicable statute of limitations for any
contract claim filed by the firefighters should be five years, not fifteen years as the
court found; and third, that a judgment certified by the court as final and
appealable was really an interlocutory order because it left unanswered too many
questions about damages, costs and attorneys’ fees, many of which were
specifically reserved for future determination. For their part, the Hasken Appellees
have filed a cross-appeal arguing the overtime pay formula should include the
clothing allowance received by firefighters. After reviewing the record and the
law, we affirm in all respects the opinion and order entered by the court on June
16, 2006. We affirm in part, vacate in part, and remand for further proceedings
consistent with this opinion the judgment entered on September 21, 2006. Finally,
we affirm the written order entered on June 17, 2007, denying the City’s motion to
alter, amend or vacate the judgment entered on September 21, 2006.

886
ROBBINS V. COMMONWEALTH
OPINION AFFIRMING
** ** ** ** **
BEFORE: NICKELL AND VANMETER, JUDGES; GRAVES,1 SENIOR JUDGE.
VANMETER, JUDGE: Following his conditional Alford2 plea, Duwan Lamar Robbins appeals from the final judgment of the Jefferson Circuit Court sentencing him to four years’ imprisonment for illegal possession of a controlled substance and tampering with physical evidence. Consolidated with that appeal is Robbins’ appeal from an order forfeiting the currency found at the time of his arrest. For the following reasons, we affirm as to both appeals.

890
ROLLINS V. COMMONWEALTH
OPINION REVERSING
APPELLEE
** ** ** ** **
BEFORE: MOORE AND WINE, JUDGES; HENRY, SENIOR JUDGE.
WINE, JUDGE: Appellant Willie Rollins (“Rollins”) directly appeals from two final and appealable orders of the McCreary Circuit Court: (1) an Order Setting Restitution; and (2) an Order Overruling Motion to Reconsider Order Setting Restitution. Rollins contends that the trial court lacked jurisdiction to order him to pay restitution in the amount of $183,317.50. We agree.

892
DAUNHAUER V. DAUNHAUER
OPINION REVERSING
APPELLEE
** ** ** ** ** BEFORE: ACREE AND NICKELL, JUDGES; KNOPF,1 SENIOR JUDGE.
ACREE, JUDGE: Bruce Daunhauer appeals from an order of the Jefferson Family Court denying his motion to terminate his maintenance obligation created by the order dissolving his marriage to his former wife, Elaine Daunhauer. The evidence shows that Elaine, having received rehabilitative maintenance for more than twenty years, is no longer dependent upon that maintenance to meet her needs. Her ability to meet her financial needs with her own resources constitutes a change in the parties’ circumstances so substantial and continuing as to render the continuation of the maintenance obligation unconscionable. Therefore, we reverse.

893
BEACH V. CEASAR'S RIVERBOAT CASINO, LLC
OPINION REVERSING AND REMANDING
** ** ** ** ** BEFORE: MOORE, TAYLOR, AND VANMETER, JUDGES.
TAYLOR, JUDGE: Carla Beach appeals from the Shelby Circuit Court’s order dismissing her action for lack of personal jurisdiction over appellees, Caesars Riverboat Casino, LLC, (Caesars) and Harrah’s Entertainment, Inc.1    Beach argues on appeal that the circuit court erred by dismissing her complaint for lack of personal jurisdiction over appellees. For the following reasons, we reverse and remand.

895
COLORAMA, INC. V. JOHNSON
OPINION AFFIRMING
** ** ** ** ** BEFORE: CAPERTON, THOMPSON AND WINE, JUDGES.
CAPERTON, JUDGE: The Appellant, Colorama, appeals the February 11, 2008, judgment of the Floyd Circuit Court, based upon a jury verdict finding that Colorama retaliated or discriminated against the Appellee, Marty Johnson (Johnson), for filing a workers’ compensation claim1 and for awarding damages and attorneys’ fees against Colorama.

899
EAGLE CLIFF RESORT, LLC V. KHBBJB, LLC
OPINION AFFIRMING
** ** ** ** ** BEFORE: ACREE AND DIXON, JUDGES; GRAVES,1 SENIOR JUDGE.
ACREE, JUDGE:    Eagle Cliff Resort, LLC, and certain of its members2 (Eagle Cliff) appeal from an order of the Lee Circuit Court confirming the judicial sale of its commercial property following foreclosure by the mortgage holder, KHBBJB, LLC (KHBBJB). We affirm.

904
WAGONER V. BRADLEY
OPINION AFFIRMING
** ** ** ** ** BEFORE: LAMBERT AND STUMBO, JUDGES; HENRY,1 SENIOR JUDGE.
LAMBERT, JUDGE: Robin Wagoner appeals from the Rowan Circuit Court’s order dismissing her case with prejudice for failure to comply with the applicable statute of limitations. After careful review, we affirm.
Wagoner filed a complaint in the Rowan Circuit Court on January 23, 2008, alleging that she had a single-car accident at the intersection of KY 158 and KY 32 on November 14, 2006. According to Wagoner, she crashed her car into an embankment because she did not see a stop sign in time.    Wagoner alleged that the defendants in the underlying action, Katrina Bradley and Danny Moran, were negligent in erecting the stop sign in the wrong place. In response to the suit, Bradley and Moran filed a motion to dismiss Wagoner’s action on February 18, 2008.

908
FARMER V. COMMONWEALTH
OPINION AFFIRMING
** ** ** ** ** BEFORE: LAMBERT AND TAYLOR, JUDGES; HENRY,1 SENIOR JUDGE.
LAMBERT, JUDGE: Appellant, Jerry Farmer, was convicted by a Perry County jury of second-degree trafficking in a controlled substance (hydrocodone). For this crime, Farmer was sentenced to one and one-half years’ imprisonment. He now appeals to this Court, setting forth several errors which he claims entitle him to a new trial. Finding no reversible error, we affirm the jury’s verdict.

The evidence admitted at trial indicated the following: In September 2006, the Hazard Post of the Kentucky State Police paid confidential informants to help them orchestrate illegal drug transactions. Harold Dean Robinson was one of these confidential informants. Robinson told state police that he knew people from whom he could obtain illegal drugs. Farmer was one of these people.

909
SOUTHSIDE REAL ESTATE DEVELOPERS V. PIKE COUNTY FISCAL COURT
OPINION AFFIRMING
** ** ** ** ** BEFORE: LAMBERT, MOORE, AND VANMETER, JUDGES.
APPELLEE
VANMETER, JUDGE: A county fiscal court’s authority to sell real property is governed by KRS1 67.080 and 67.0802. The issue we address in this case is whether
the Pike Circuit Court erred in its determination that the Pike County Fiscal Court’s failure to comply with the requirements of the latter statute prevents
Southside Real Estate Developers, Inc. from maintaining an action to compel a conveyance from the Fiscal Court. Finding no error, we affirm.

I.    Factual Background.
The facts giving rise to this controversy are neither complicated nor disputed. In the 1980s, the United States government undertook a Flood Control Project2 in Pike County, which included the purchase of a number of small tracts of property. 3    In an agreement dated August 1, 1983, the Fiscal Court agreed “not to convey or otherwise dispose of any land ownership within the Project area without written approval” of the United States. In 1998, after completion of the Project, the United States conveyed to the Fiscal Court a number of small parcels, including one designated as “Tract No. 1839,” a 0.37-acre piece of property located adjacent to U.S. Route 119.

922
BELL V. CONSOL OF KENTUCKY LLC
OPINION AFFIRMING
APPELLEES
** ** ** ** ** BEFORE: MOORE AND NICKELL, JUDGES; HARRIS,1 SENIOR JUDGE.
HARRIS, SENIOR JUDGE: Mary Bell, substituted party for Rodney Bell, deceased, filed this petition for review of a decision by the Workers’ Compensation Board, which affirmed the decision of the Administrative Law Judge (ALJ) to reduce the benefit payments by 50% pursuant to KRS 342.730(3). Bell argues that KRS 342.730(3) does not apply to settlement agreements and that the Board should have applied KRS 342.125 and KRS 342.265. The question of whether KRS 342.730(3) applies to settlement agreements appears to be one of first impression. We find that KRS 342.730(3) is applicable to settlement agreements and affirm the decision of the Workers’ Compensation Board.

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