COA 2010 Minutes: April 16, 2010 (Nos.377-398)

COA 2010 Minutes: April 16, 2010 (Nos.377-398)

  • Above link to minutes is full text of minutes with link to full text
    of each decision.
  • 22 decisions
  • Published Decisions:  3

PUBLISHED DECISIONS WITH SHORT SYNOPSIS AND LINK TO FULL TEXT OF EACH:

386
CRIMINAL
KING (TOMMY) VS. COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
COMBS (CONCURS) AND VANMETER (CONCURS)
2009-CA-000413-MR
TO BE PUBLISHED
ESTILL

Tommy King (King) entered a conditional guilty plea under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), reserving the right to appeal the trial court’s denial of his motion to suppress evidence. After reviewing the record and arguments by the parties, we affirm.

387 – FAMILY LAW
CHAPPELL (RAYMOND KEITH) VS. CHAPPELL (BRENDA MARIE)
OPINION AFFIRMING
COMBS (PRESIDING JUDGE)
CLAYTON (CONCURS) AND STUMBO (CONCURS)
2009-CA-000634-MR
TO BE PUBLISHED
ALLEN

 Raymond Keith Chappell appeals from an order of the Allen Circuit Court, Family Division, concerning child custody, visitation issues, and distribution of marital property. After our review, we affirm.

397
GAINES (DAVID) VS. KENTUCKY OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION , ET AL.
OPINION AFFIRMING
MOORE (PRESIDING JUDGE)
CAPERTON (CONCURS) AND BUCKINGHAM (CONCURS)(SJ)
2009-CA-001794-MR
TO BE PUBLISHED
FRANKLIN

MOORE, JUDGE: David Gaines, d/b/a David Gaines Roofing and Supplies, appeals an opinion and order of the Franklin Circuit Court dismissing as untimely his declaratory action and appeal from the Kentucky Occupational Safety and Health Review Commission. After a careful review of the record, we agree that Gaines’ appeal was untimely. As such, we affirm.

TORT REPORT – CIVIL, PROCEDURE, INSURANCE DECISIONS:

378 – TRIAL
MCCAIN (SHANE)
VS.
WADDELL (BETH)
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
LAMBERT (CONCURS) AND VANMETER (CONCURS)
2008-CA-000639-MR
NOT TO BE PUBLISHED
JEFFERSON

Shane McCain appeals from a judgment awarding Beth Waddell damages following an automobile accident. McCain argues: (1) the jury instructions were improper because they created a false impression that McCain owed a greater duty than ordinary care; and (2) a witness should not have been permitted to testify regarding measurements of the accident scene because the information was not produced prior to trial. After reviewing the record and briefs, we affirm. * * *

McCain next argues the trial court erred by permitting Blanckaert to testify regarding measurements he took at the accident scene because the information was not disclosed prior to trial. McCain also complains about a diagram used to refresh Blanckaert’s memory on the stand, but not introduced as a trial exhibit. McCain has not cited where this alleged argument was preserved for review nor does he support his argument with citations from the record.
Citing Vires v. Commonwealth, 989 S.W.2d 946 (Ky. 1999), McCain contends Kentucky law does not permit “trial by ambush.” In Vires, the Supreme Court of Kentucky held there was no violation of a criminal discovery rule when the basis of an accident reconstructionist’s opinions was provided to defense counsel prior to trial. Id. at 948. Vires dealt with an issue involving Kentucky Rules of Criminal Procedure (RCr) 7.24(1)(b) and, therefore, is not applicable to the present case. In the present case, the record does not support McCain’s argument.

391- SOVEREIGN IMMUNITY
FRYMAN (PATRICK D.)
VS.
FLEMING COUNTY HOSPITAL
OPINION AFFIRMING
WINE (PRESIDING JUDGE)
DIXON (CONCURS) AND LAMBERT (CONCURS)
2009-CA-000865-MR
NOT TO BE PUBLISHED
FLEMING

Appellant Patrick Fryman appeals from the entry of a summary judgment in favor of the appellee, Fleming County Hospital District, d/b/a Fleming County Hospital, wherein the Fleming Circuit Court found that Fleming County Hospital was entitled to judgment as a matter of the law on sovereign immunity grounds. Fryman contends that Fleming County Hospital cannot properly be considered an instrumentality of the state entitled to sovereign immunity. We disagree.

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