December 7, 2012 Court of Appeals Minutes

Court of Appeals Minutes Text OnlyPublished and Unpublished Decisions from the Kentucky Court of Appeals

December 7, 2012 Court of Appeals Minutes
Nos. 1115 – 1147;  33 decisions;   9 Cases To Be Published)

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Published Decisions:

1115.
Villas at Woodsen Bend Condominium Association vs. South Fork Developoment

NICKELL, JUDGE: The Villas at Woodson Bend Condominium Association, Inc. (“The Association”), and several of its members have appealed from the PulaskiCircuit Court’s November 12, 2009, order rescinding its prior grant of partial summary judgment in their favor and instead granting partial summary judgment in favor of South Fork Development, Inc. (“South Fork”). Following a careful review of the record, we affirm.

1119.  FELA
Cooke v. CSX Transportation, Inc.

LAMBERT, JUDGE: Michael E. Cooke has appealed from the Jefferson Circuit Court’s trial order and judgment entered on March 23, 2011, following a second jury trial, dismissing his claims against CSX Transportation, Inc., (CSX) for failing to provide a reasonably safe place to work pursuant to the Federal Employers’ Liability Act (FELA), 45 U.S.C. §§ 51-60. We have closely reviewed the record, and we find no error or abuse of discretion in the instructions to the jury or in the evidentiary rulings raised on appeal. Therefore, we affirm the trial court’s judgment.

1122
MILLER v. FRASER
OPINION REVERSING AND REMANDING
CAPERTON (PRESIDING JUDGE)
LAMBERT (CONCURS) AND NICKELL (CONCURS)
2011-CA-000884-MR
2011-CA-000905-MR
TO BE PUBLISHED
WARREN

CAPERTON, JUDGE: Matthew Miller appeals from the jury verdict in favor of the defendant, Dr. Ambreen Fraser, in a medical negligence case. On appeal, Miller argues that the trial court abused its discretion by not allowing him to present expert testimony in rebuttal to respond to a juror’s question, and that the trial court committed reversible error by ruling that Miller was not entitled to present to the jury his claim for failure to obtain informed consent on the basis that such claims only arise out of surgical procedures. Dr. Fraser cross-appeals the trial court’s denial of her summary judgment and directed verdict motions on the issue of foreseeability of the injury to Miller. After a thorough review of the parties’ arguments, the record, and the applicable law, we agree with Miller that the trial court abused its discretion in not allowing him to present to the jury his claim for failure to obtain informed consent, necessitating reversal. However, we affirm the trial court’s denial of Dr. Fraser’s motions for the reasons set forth infra.

1127. SOL.
POTTER (KELLY), ET AL.
VS.
BOLAND (KIMBERLY), ET AL.
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
CLAYTON (CONCURS) AND COMBS (DISSENTS AND FILES SEPARATE OPINION)
2011-CA-001336-MR
TO BE PUBLISHED
JEFFERSON

HOMPSON, JUDGE: Kelly Potter, individually and as Administrator of the Estate of Brittani Ames, and Sonya Potter, individually, appeal from a summary judgment dismissing their claims for loss of consortium against Dr. Kimberly Boland and Dr. Arayamparambil Anilkumar on the basis that their claims were not filed within the applicable statute of limitations period. We affirm.

1134. VICARIOUS LIABILITY. EMPLOYEE ON WAY TO WORK, ETC.
COLLINS (RICKY), ET AL.
VS.
APPALACHIAN RESEARCH AND DEFENSE FUND OF KENTUCKY, INC.
OPINION AFFIRMING
DIXON (PRESIDING JUDGE)
MAZE (CONCURS) AND NICKELL (CONCURS)
2011-CA-001680-MR
TO BE PUBLISHED
ADAIR

DIXON, JUDGE: Appellant, Ricky Collins, appeals from an order of the Adair Circuit Court granting summary judgment in favor of Appalachian Research & Defense Fund of Kentucky, Inc. (“Appalred”) on his claim under the theory of repondeat superior liability. For the reasons set forth herein, we affirm.

1139
BULLITT COUNTY BOARD OF HEALTH
VS.
BULLITT COUNTY FISCAL COURT, ET AL.
OPINION REVERSING AND REMANDING
VANMETER (PRESIDING JUDGE)
KELLER (CONCURS) AND TAYLOR (DISSENTS AND FILES SEPARATE OPINION)
2011-CA-001798-MR
TO BE PUBLISHED
BULLITT

VANMETER, JUDGE: The Bullitt County Board of Health (“Board of Health”) appeals from the September 15, 2011, order of the Bullitt Circuit Court declaring invalid a regulation promulgated by the Board of Health that sought to prohibit smoking in certain places within Bullitt County. For the following reasons, we reverse and remand.

1143
ESTATE OF ELEANOR M. THOMAS
VS.
JENNIE STUART MEDICAL CENTER, INC.
OPINION AFFIRMING
MAZE (PRESIDING JUDGE)
CLAYTON (CONCURS) AND KELLER (CONCURS)
2011-CA-001944-MR
NOT TO BE PUBLISHED
CHRISTIAN

MAZE, JUDGE: The Estate of Eleanor M. Thomas (the Estate), appeals from a summary judgment order of the Christian Circuit Court dismissing its negligence claim against Jennie Stuart Medical Center, Inc. (JSMC). The Estate argues that there were genuine issues of material fact which precluded summary judgment and that it was entitled to additional discovery due to JSMC’s inaccurate and untimely responses to interrogatories. We conclude that any disputed issues of fact were not material because the Estate failed to show that JSMC owed a duty to Thomas in the manner alleged. Furthermore, while we have concerns about JSMC’s conduct in responding to the Estate’s discovery requests, the omitted evidence was not relevant to establish the existence of a duty. Therefore, the trial court properly granted JSMC’s motion for summary judgment. Hence, we affirm.

1144
ROBERTS (DONALD)
VS.
THOMPSON, (LADONNA) COMMISSIONER, KENTUCKY DEPARTMENT OF CORRECTIONS
OPINION REVERSING AND REMANDING
VANMETER (PRESIDING JUDGE)
COMBS (CONCURS) AND DIXON (CONCURS)
2011-CA-001950-MR
TO BE PUBLISHED
FRANKLIN

VANMETER, JUDGE: Donald Roberts, an inmate at the Kentucky State Reformatory, appeals, pro se, from an order of the Franklin Circuit Court dismissing his petition for a declaration of rights seeking Educational Good Time (“EGT”) credit towards his sentence. For the following reasons, we reverse and remand.

1146
COMMONWEALTH OF KENTUCKY
VS.
BROOKS (JEREMY), ET AL.
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
COMBS (CONCURS) AND THOMPSON (CONCURS)
2011-CA-002075-MR
TO BE PUBLISHED
JEFFERSON

1147
WILSON (CORY L.)
VS.
COMMONWEALTH OF KENTUCKY
OPINION VACATING AND REMANDING
LAMBERT (PRESIDING JUDGE)
COMBS (CONCURS) AND NICKELL (CONCURS)
2011-CA-002157-MR
TO BE PUBLISHED
JEFFERSON

LAMBERT, JUDGE: Cory Wilson appeals from a judgment following a jury trial, in which he was found guilty of trafficking in a controlled substance, first degree (cocaine); tampering with physical evidence; fleeing or evading police, first degree (pedestrian); resisting arrest; trafficking in a controlled substance (marijuana less than 8 ounces); and criminal trespass, and he was sentenced to concurrent terms of imprisonment totaling ten years and a fine of $250.00. Because we agree with Wilson that the trial court should have granted a continuance based on the Commonwealth’s failure to produce a requested discovery document the trial court had ordered it to produce, we vacate the judgment and remand for a new trial.

NOT TO BE PUBLISHED DECISIONS.

1124
PEZZAROSSI (RANDY)
VS.
NUTT (GILBERT)
OPINION REVERSING AND REMANDING
LAMBERT (PRESIDING JUDGE)
COMBS (CONCURS) AND NICKELL (CONCURS)
2011-CA-000990-MR
NOT TO BE PUBLISHED
JEFFERSON

LAMBERT, JUDGE: Randy Pezzarossi has appealed from the judgment and order of the Jefferson Circuit Court denying his request to instruct the jury on punitive damages. We agree with Pezzarossi that he was entitled to an instruction on punitive damages in his fraud action. Therefore, we reverse the judgment of the circuit court and remand for a new trial on the issue of punitive damages.

1125
FRYMAN (PATRICK D.)
VS.
WICZKOWSKI (JANE F.)
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
CLAYTON (CONCURS) AND DIXON (CONCURS)
2011-CA-001042-MR
NOT TO BE PUBLISHED
FLEMING

ACREE, CHIEF JUDGE: At issue is whether the Fleming Circuit Court erred in finding Appellant, Patrick D. Fryman, needed expert medical testimony to establish the respective medical standard of care and corresponding breach thereof for Fryman’s medical negligence claim against Appellee, Dr. Jane F. Wiczkowski, to survive summary judgment. Finding no error, we affirm.

1128
THE GETTY LAW GROUP, PLLC
VS.
BOWLES, RICE, MCDAVID, GRAFF & LOVE, PLLC
OPINION AFFIRMING
DIXON (PRESIDING JUDGE)
MAZE (CONCURS) AND NICKELL (CONCURS)
2011-CA-001393-MR
NOT TO BE PUBLISHED
PIKE

DIXON, JUDGE: Appellant, The Getty Law Group, PLLC (“Getty Group”), appeals from orders of the Pike Circuit Court allocating attorney’s fees between itself and Appellee, Bowles Rice McDavid Graff & Love, PLLC (“Bowles Rice”). For the reasons set forth herein, we affirm.

1126
MCMULLAN (ROBERT M.) SR.
VS.
FLAGET MEMORIAL HOSPITAL , ET AL.
OPINION AFFIRMING
TAYLOR (PRESIDING JUDGE)
KELLER (CONCURS) AND VANMETER (CONCURS)
2011-CA-001108-MR
NOT TO BE PUBLISHED
NELSON

TAYLOR, JUDGE: Robert M. McMullan, Sr., brings this pro se appeal from two summary judgments of the Nelson Circuit Court entered June 9, 2011, dismissing McMullan’s medical negligence claims against Flaget Memorial Hospital, d/b/aFlaget Healthcare, Inc., and Mickey Anderson, M.D. (collectively referred to as appellees). We affirm.

1143
ESTATE OF ELEANOR M. THOMAS
VS.
JENNIE STUART MEDICAL CENTER, INC.
OPINION AFFIRMING
MAZE (PRESIDING JUDGE)
CLAYTON (CONCURS) AND KELLER (CONCURS)
2011-CA-001944-MR
NOT TO BE PUBLISHED
CHRISTIAN

MAZE, JUDGE: The Estate of Eleanor M. Thomas (the Estate), appeals from a summary judgment order of the Christian Circuit Court dismissing its negligence claim against Jennie Stuart Medical Center, Inc. (JSMC). The Estate argues that there were genuine issues of material fact which precluded summary judgment and that it was entitled to additional discovery due to JSMC’s inaccurate and untimely responses to interrogatories. We conclude that any disputed issues of fact were not material because the Estate failed to show that JSMC owed a duty to Thomas in the manner alleged. Furthermore, while we have concerns about JSMC’s conduct in responding to the Estate’s discovery requests, the omitted evidence was not relevant to establish the existence of a duty. Therefore, the trial court properly granted JSMC’s motion for summary judgment. Hence, we affirm.

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