Bath County is the 5th county formed in Kentucky (1811). Owingsville is county seat. Picture is of the 3rd courthouse which was built in 1866 at a cost of $34,000. The 2nd courthouse was on the same site but was carelessly burned down by bivouacing federals on May 21, 1864. Portrait of Richard H. Menefee adorns the courtroom. Menefee was was a U.S. Representative from Kentucky. Due to his oratory skill, he was dubbed “the young Patrick Henry of the West.” He was presumed the successor to Henry Clay as leader of the Whig Party until his death at age thirty-one. In 1836, Menefee was elected to the House of Representatives. His best known speech in that body urged restraint in the Caroline affair with the British. His reputation, and that of fellow Kentuckian John J. Crittenden, were tarnished due to their involvement in a duel between Representatives William J. Graves and Jonathan Cilley in which the latter was mortally wounded. He did not stand for re-election following his term in office and returned to his legal practice. In 1841, he was elected to the U.S. Senate, but died five days later before he could take office. Menifee County, Kentucky, despite the spelling discrepancy, is named in his honor. The white Owings House was designed by the architect of the capitol, Benjamin Latrobe.

Published Court of Appeals appellate cases for  this week –

January 15, 2015:    Links are to full text of PDF decision with AOC.

39.  Criminal Procedure.  Search and Seizure.  Illegal investigatory traffic stop and detention.
Charles Pulley vs. Commonwealth of Kentucky
Court of Appeals Published Opinion Reversing. Livingston.
THOMPSON, JUDGE: Charles Pulley was charged with menacing and seconddegree disorderly conduct. Pulley confronted police at a traffic safety checkpoint after an officer removed Pulley’s firearm from his vehicle and checked the firearm’s serial number. Following a jury trial in the Livingston District Court, Pulley was acquitted of menacing but convicted of second-degree disorderly conduct. He appealed to the Livingston Circuit Court arguing the district court erroneously denied his motion to suppress and his motion for a directed verdict. The circuit court affirmed. We granted discretionary review. Reversed.

43.  Arbitration.
Kathleen Imhoff vs Lexington Public Library Board of Trustees
Court of Appeals Published Opinion Vacating and Remanding.  Fayette.

 We do agree with Imhoff that once the arbitration award had been entered, the trial court had little latitude to evaluate the substance of the award. See KRS 417.160. However, that argument is moot under the specific facts of this case. We conclude that the trial court erred by ruling that Imhoff had not waived her right to arbitrate the dispute between the parties. It was incumbent upon the court to set aside its earlier order compelling arbitration to void the arbitration proceedings in their entirety, and to proceed with the litigation of this case in the judicial forum that Imhoff herself had elected. We vacate the opinion and order of the Fayette Circuit Court confirming, in part, the arbitrators’ award, and we remand this case for further proceedings. By separate order, we deny Imhoff’s motion to dismiss portions of the cross-appeal.

 

Selected “not to be published” Opinions–

38.  Premises Liability.  Open and obvious defense prevailed at trial but Shelton and Dick’s Sporting Goods and Carter were decided afterwards and case now reversed.
Janice Ward vs. JKP Investements LLC
Court of Appeals NONPublished Opinion reversing, vacating and remanding.  Jefferson.

In this case, the record seems sufficiently clear that the step in question, although not a crumbling ruin, was not in pristine condition and that a pre-existing handrail had been removed. Thus, under the authority of McIntosh, Shelton, and Carter, sufficient questions of fact exist which preclude summary judgment. The trial court therefore erred in granting JKP’s motion for summary judgment. This matter is therefore remanded to the Jefferson Circuit Court for further proceedings consistent with the directive of the Supreme Court of Kentucky in Carter.

In a previously rendered opinion, a majority of this panel determined that the facts of this case constituted the “appropriate case” noted in Shelton. On Ward’s motion for discretionary review, the Supreme Court of Kentucky vacated our opinion and remanded this matter for consideration in light of Carter. Ward v. JKP Investments, LLC, 2015-SC-000099-D (Ky., Dec. 10, 2015).

46.  Appeal.  Dismissing appeal as untimely taken from interlocutory order.
Charlotte Hare vs. Grange Mutual Casualty Co.
COA Not to Be Published Opinion Dismissing Appeal.  Adair.

Finally, we note the October 17, 2013, order which contained finality language pursuant to CR 54.02 adjudicated all of the claims as between Hare and Maryland and as between Grange and Maryland. However, it had no effect on the remaining claims between Hare and Grange. Thus, Grange’s reliance on the language contained in that order—in support of its contention Hare’s October 30, 2013, motion for relief was untimely filed—is misplaced as the trial court retained jurisdiction to modify or correct its prior interlocutory orders relating to Hare’s bad faith claim against Grange. For the foregoing reasons, this appeal must be and hereby is, DISMISSED.

 

Click here for links to all the archived AOC Court of Appeals minutes at the web site for the Administrative Office of the Courts.

Click here for a listing of the Kentucky Court Report’s posts of the weekly COA minutes (or you can always access these within the KCR web site at the uppermost dropdown menu option for the Court of Appeals).

AOC version of this week’s decisions can be accessed by clicking here.

The complete set of this week’s minutes listing all decisions (published and not to be published) with links to the full text of each at the AOC,  are below:

[gview file=”https://kycourtreport.com/wp-content/uploads/2016/01/MNT01152016.pdf”]