COA 2011 Minutes for March 11, 2011 — Nos. 224 – 262

COA 2011 Minutes for March 11, 2011 –  Nos. 224 – 262

  • Click on the above link for the full text of minutes with link to full text of each decision.
  • Link to AOC Page with current minutes and archived minutes links
  • Total number of decisions:  39 cases
  • Published Decisions:7 published (225,226, 231, 235, 246, 251, 252)
PUBLISHED DECISIONS (with link to full text at AOC):

225. FAMILY LAW; PERMANENT CUSTODY, GRANDPARENTS.
LEACH (CHRISTOPHER) VS. HARRISON (L. D.), ET AL.
OPINION AFFIRMING
WINE (PRESIDING JUDGE)
NICKELL (CONCURS) AND SHAKE (CONCURS)
2009-CA-000622-ME
TO BE PUBLISHED
ESTILL

WINE, JUDGE: Christopher Leach (“Chris”), a father, appeals an order of the Estill Circuit Court granting permanent sole custody of his minor children to their maternal grandparents, Debra and L.D. Harrison (the “Harrisons”). On appeal, he argues that the trial court erred in finding him to be an unfit parent and by finding that it was in the best interests of the children to be placed with the Harrisons. We disagree.

226. TRIAL. MOTION FOR NEW TRIAL; COLLATERAL SOURCE IN FELA CASE.
LEIGHTON (JEFF) VS. CSX TRANSPORTATION, INC.
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
COMBS (CONCURS) AND WINE (CONCURS)
2009-CA-001158-MR
TO BE PUBLISHED
JEFFERSON

ACREE, JUDGE: Jeff Leighton appeals the Jefferson Circuit Court’s denial of his motion for a new trial of his tort claim against his employer, CSX Transportation, Inc., on the ground that the jury was allowed to speculate about collateral source payments for medical expenses. The Jefferson Circuit Court denied the motion because the fund from which those medical expenses were paid was not a collateral source. We agree with the circuit court and affirm.

231. TORTS. Premises liability. Business Invitee. Slip and fall at motel bathtub.
JONES (MAZIE) VS. ABNER (BILLY)
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
STUMBO (CONCURS) AND ACREE (CONCURS AND FILES SEPARATE OPINION)
2009-CA-001441-MR
TO BE PUBLISHED
POWELL

LAMBERT, SENIOR JUDGE: Mazie Jones appeals from the Powell Circuit Court’s entry of summary judgment in favor of Billy Abner, d/b/a Lil’ Abner Motel as to her personal injury lawsuit against the motel. Appellant was injured when she slipped and fell while getting into a bathtub at the motel. Appellant asserts that summary judgment was inappropriate because a genuine issue of material fact existed as to whether the condition of the bathtub was unreasonably dangerous and a substantial cause of her injuries. However, after our review, we affirm.

235. Torts. Defense of qualified immunity
FAULKNER (PATRICIA) VS. GREENWALD (SCOTT)
OPINION REVERSING AND REMANDING
LAMBERT (PRESIDING JUDGE)
CAPERTON (CONCURS) AND WINE (CONCURS)
2009-CA-001802-MR
TO BE PUBLISHED
JEFFERSON

LAMBERT, SENIOR JUDGE: Patricia Faulkner appeals from the September 18, 2009, memorandum and order of the Jefferson Circuit Court. That order dismissed Faulkner’s personal injury lawsuit against Scott Greenwald. As we hold that the trial court erred in its conclusion that Greenwald was entitled to qualified immunity, we reverse and remand.

246. Family law.  EPO.
CARPENTER (AIMEE LORAINE) VS. SCHLOMANN (ANDREW JOHN)
OPINION REVERSING AND REMANDING
LAMBERT (PRESIDING JUDGE)
CAPERTON (CONCURS) AND WINE (CONCURS)
2010-CA-000027-ME
TO BE PUBLISHED
SHELBY

LAMBERT, SENIOR JUDGE: Aimee Loraine Carpenter appeals from the Shelby Circuit Court Order of Protection entered on December 17, 2009, on behalf of Andrew John Schlomann. As we hold that the trial court erred when it failed to conduct a full evidentiary hearing and relied upon extrajudicial evidence, we reverse and remand

251. Criminal Procedure.  Search and seizure (false statement and good faith exception).
COMMONWEALTH OF KENTUCKY VS. MCCLAIN (GARRY)
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
ACREE (CONCURS) AND THOMPSON (CONCURS)
2010-CA-000256-MR
TO BE PUBLISHED
MASON

LAMBERT, JUDGE: The Commonwealth of Kentucky is seeking interlocutory relief pursuant to Kentucky Revised Statutes (KRS) 22A.020(4) from an order of the Mason Circuit Court entered January 26, 2010, quashing a search warrant and suppressing evidence seized during the search of Garry McClain Sr.’s residence. The Commonwealth contends that the circuit court improperly found that the search warrant affidavit contained a false statement, and with the false statement purged, did not support a finding of probable cause. The Commonwealth further argues that the circuit court improperly determined that the good faith exception did not apply in this case. After careful review of the record, including the suppression hearing, as well as the parties’ arguments in their respective briefs, we affirm.

252.  Family Law.  Sexual abuse of minor.
B.(W.) VS. COMMONWEALTH OF KENTUCKY, ET AL.
OPINION AFFIRMING
MOORE (PRESIDING JUDGE)
LAMBERT (CONCURS) AND ISAAC (CONCURS)
2010-CA-000361-MR
TO BE PUBLISHED
JEFFERSON

MOORE, JUDGE: On December 8, 2008, the Department for Community Based Services (DCBS)2 requested that the Cabinet for Health and Family Services substantiate an allegation that W.B., an adult citizen of Jefferson County, Kentucky, had committed sexual abuse of a minor in his custody or control. A “substantiated allegation” carries with it no criminal penalties and merely indicates a finding by the Cabinet that it is more likely than not that the accused abused or neglected a child. See 922 Kentucky Administrative Regulations (KAR) 1:330 Section 1(11). However, if the Cabinet affirms that an allegation is substantiated by a preponderance of the evidence, then the accused's name is filed on a central registry of individuals for whom abuse allegations have been substantiated, and remains on that registry for a minimum of seven years. See generally 922 KAR 1:470.3.

Nonpublished Tort, Procedure, etc – AKA TORT REPORT



229.  Wrongful death.  Summary judgment reversed. KRS re manufactured homes and fire prevention.
JUAN PENA ADMIN OF THE ESTATES OF LOREN PENA, JUAN MANUEL PENA, AND GABRIEL PENA; JUAN PENA INDIVIDUALLY; AND LORENA PENA, INDIVIDUALLY, ET AL.
VS.
GREEN TREE SERVICING, LLC.
OPINION REVERSING AND REMANDING
DIXON (PRESIDING JUDGE)
TAYLOR (CONCURS) AND ISAAC (CONCURS)
2009-CA-001403-MR
NOT TO BE PUBLISHED
JEFFERSON

DIXON, JUDGE: Appellants, Juan Pena, Administrator for the Estates of Loren, Juan Manuel, and Gabriel Pena, as well as Juan Pena and Lorena Pena, individually, appeal from an order of the Jefferson Circuit Court granting summary judgment in favor of Appellee, Green Tree Servicing Center, LLC, in this wrongful death/personal injury action. After reviewing the record herein, we conclude that summary judgment was erroneous and therefore, reverse and remand to the trial court for further proceedings.

236.  Inconsistent verdicts;  zero pain and suffering. REVERSAL!
CUMMINGS (CALVIN) VS. STEELE (BURNICE W.), ET AL.
OPINION REVERSING
SHAKE (PRESIDING JUDGE)
VANMETER (CONCURS) AND WINE (CONCURS)
2009-CA-001817-MR
NOT TO BE PUBLISHED
PERRY

SHAKE, SENIOR JUDGE: In a personal injury action arising from an automobile accident, the Perry Circuit Court entered a judgment on a jury verdict awarding Calvin Cummings medical expenses and lost wages but not pain and suffering damages. Cummings appeals from a Perry Circuit Court Judgment (Judgment), entered on January 20, 2009, and subsequent Order (Order), entered on September 15, 2009, denying Cummings motion for a new trial. Cummings requested a new trial based upon the jury’s inconsistent awards. Following a careful review of applicable case law and the record, we agree and reverse the Perry Circuit Court Judgment and Order.

While juries are not required to award pain and suffering damages each time a plaintiff is compensated for medical expenses, “. . . . where a substantial personal injury is sustained, suffering is presumed.” Schriewer v. Schworer, 296 Ky. 749, 178 S.W.2d 598, 599 (1944). Based upon the uncontroverted evidence of Cummings significant injuries and the inadequacy of the award, we conclude that the trial court’s Order was clearly erroneous.

245. Premises liability. Reversed summary judgement dismissing claims. Open and obvious.
LYONS (THERESA) VS. M & K APARTMENTS, INC.
OPINION VACATING AND REMANDING
DIXON (PRESIDING JUDGE)
ACREE (CONCURS) AND KELLER (CONCURS IN RESULT ONLY)
2010-CA-000002-MR
NOT TO BE PUBLISHED
KENTON

DIXON, JUDGE: Theresa Lyons appeals an order of the Kenton Circuit Court granting summary judgment in favor of M & K Apartments, Inc., in a premises liability action. Because summary judgment was improper, we vacate the court’s order and remand for further proceedings.

Viewing the record in the light most favorable to Lyons, we conclude she presented genuine issues of material fact regarding the cause of her fall and whether the entryway presented an unsafe condition on Appellee’s premises. See Eggen v. Hickman, 274 Ky. 550, 119 S.W.2d 633 (Ky. App. 1938). Because disputed issues of fact exist, summary judgment was improper.

255.  Post trial motion untimely.
MOSELEY (FORREST ALAN) VS. NORRIS (HAILEY M.)
OPINION AFFIRMING
SHAKE (PRESIDING JUDGE)
TAYLOR (CONCURS) AND STUMBO (CONCURS)
2010-CA-000505-MR
NOT TO BE PUBLISHED
DAVIESS

SHAKE, SENIOR JUDGE: Forrest Alan Moseley appeals pro se from the Daviess Circuit Court’s order denying his motion to “Vacate Void Judgment.” For the reasons stated herein, we affirm.

 Because Moseley’s motion was filed more than four years after the January 27, 2005 judgment, the motion is not timely filed to permit relief for the grounds stated in CR 60.02(a), (b), or (c).
Moseley also seeks relief under CR 60.02(d)-(f), and the rule requires that any motion brought under these provision must be brought within a
-3-
“reasonable time.” “What constitutes a reasonable time in which to move to vacate a judgment under CR 60.02 is a matter that addresses itself to the discretion of the trial court.” Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983); see Reyna v. Commonwealth, 217 S.W.3d 274, 276 (Ky. App. 2007) (finding that a delay of four years between the judgment and the filing of the CR 60.02 motion was unreasonable). The trial court in this case found, among other things, that Moseley’s motion was not brought within a reasonable time, and we have been provided with no reason to doubt this finding. Therefore, because Moseley’s CR 60.02 motion was not timely filed, we need not address the merits of the motion.
Additionally, motions under CR 60.02 are “not intended merely as an additional opportunity to relitigate the same issues which could ‘reasonably have been presented’ by direct appeal . . .[.]” McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997) (citations omitted). A motion pursuant to CR 60.02 “is not a separate avenue of appeal to be pursued in addition to other remedies, but is available only to raise issues which cannot be raised in other proceedings.” Id.

257. Workers comp.
BLUEGRASS REGIONAL MENTAL HEALTH
VS.
BELLAMY (TERESA), ET AL.
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
TAYLOR (CONCURS) AND COMBS (CONCURS)
2010-CA-000522-WC
NOT TO BE PUBLISHED
WORKERS' COMPNICKELL, JUDGE: Bluegrass Regional Mental Health appeals from a decision of the Workers’ Compensation Board affirming the award of future medical and income benefits and temporary total disability (TTD) benefits to Teresa Bellamy. Bluegrass Regional argues: (1) the finding of a work-related injury was not supported by substantial evidence; (2) the award of TTD benefits was not supported by substantial evidence; and (3) the award of future medical benefits was not supported by substantial evidence. We affirm.

260
OSF INTERNATIONAL, INC.
VS.
ENGLEMAN (CHARR), ET AL.
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
TAYLOR (CONCURS) AND KELLER (CONCURS)
2010-CA-001249-WC
NOT TO BE PUBLISHED
WORKERS' COMP

261
WALTERS (JEFF)
VS.
ASHMARK INC. , ET AL.
OPINION AFFIRMING
MOORE (PRESIDING JUDGE)
THOMPSON (CONCURS) AND LAMBERT (CONCURS)
2010-CA-001572-WC
NOT TO BE PUBLISHED
WORKERS' COMP

262
FRITZ (ROMONA)
VS.
BELCAN STAFFING, INC.; ET AL.

OPINION AFFIRMING
ISAAC (PRESIDING JUDGE)
CLAYTON (CONCURS) AND KELLER (CONCURS IN RESULT ONLY)
2010-CA-001735-WC
NOT TO BE PUBLISHED
WORKERS' COMP

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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