Feb. 1, 2013 Court of Appeals Minutes (Links to Appellate Decisions)

Court of Appeals Minutes Text OnlyPublished and Unpublished Decisions from the Kentucky Court of Appeals

February 1, 2013 Court of Appeals Minutes
Nos. 96-136
31 decisions;  7 Cases To Be Published

Click here for AOC page with current minutes and archived minutes links

PUBLISHED DECISIONS WITH LINKS TO FULL TEXT:

99.  DISTRICT COURT.
NORTHERN TOOL AND EQUIPMENT, INC.
VS.
DURBIN (TIM)
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
COMBS (CONCURS) AND MAZE (CONCURS)
2011-CA-000503-DG
TO BE PUBLISHED
EDMONSON

THOMPSON, JUDGE: Northern Tool and Equipment, Inc. was granted discretionary review of an order of the Edmonson Circuit Court affirming a district court judgment in a small claims action. Northern Tool argues that the district court improperly shifted the burden of proof to the defendant and erroneously awarded credit card interest. We affirm.

102. TORTS. DEFENSES. SOVEREIGN IMMUNITY.
KNOTT COUNTY FISCAL COURT, ET AL.
VS.
AMBURGEY (GARY)
OPINION REVERSING AND REMANDING
CAPERTON (PRESIDING JUDGE)
COMBS (CONCURS) AND NICKELL (CONCURS)
2011-CA-000782-MR
TO BE PUBLISHED
KNOTT

CAPERTON, JUDGE: The Knott County Fiscal Court appeals from the denial of its motion for summary judgment based on sovereign immunity against the negligence action filed by Gary Amburgey for failure to remove mud and debris from the roadway and failure to warn of the hazardous condition. After a thorough review of the parties’ arguments, the record, and the applicable law, we agree with the Fiscal Court that its sovereign immunity was not expressly waived by Kentucky Revised Statutes (KRS) 67.180; therefore, it was entitled to summary judgment. Accordingly, we reverse and remand this matter for an order entering summary judgment in favor of the Fiscal Court.

108.  EMPLOYMENT LAW.  RETALIATORY DISCHARGE.
UNIVERSITY OF LOUISVILLE ATHLETIC ASSOCIATION, INC.
VS.
BANKER (MARY)
OPINION REVERSING AND REMANDING
LAMBERT (PRESIDING JUDGE)
MOORE (CONCURS) AND CAPERTON (DISSENTS AND FILED SEPARATE OPINION)
2011-CA-001436-MR
TO BE PUBLISHED
JEFFERSON

LAMBERT, JUDGE: University of Louisville Athletic Association, Inc., (ULAA) has appealed from the judgment and orders of the Jefferson Circuit Court in favor of Mary Banker and her attorney, Bryan Cassis, resulting from a jury verdict in favor of Banker on her retaliatory discharge claim. ULAA contends that there was insufficient proof to support a retaliatory discharge verdict in her favor or to permit her to recover $300,000.00 in emotional distress damages or lost wages, and that the award of $149,325.00 in attorney fees was unreasonable. We agree with ULAA that Banker failed to prove a prima facie case of retaliation. Hence, we reverse the judgment and orders on appeal and remand this matter for dismissal of Banker’s claim.

113. CRIMINAL LAW SENTENCING. RESTITUTION.
MADDIX (WILLIAM)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
NICKELL (CONCURS) AND TAYLOR (CONCURS IN PART, DISSENTS IN PART, AND FILES SEPARATE OPINION)
2011-CA-001765-MR
TO BE PUBLISHED
GREENUP

VANMETER, JUDGE: William Maddix, Jr. brings this appeal from an August 24, 2011, order of the Greenup Circuit Court ordering Maddix to pay $24,626.27 in restitution. We affirm.

121.  ZONING
YOCUM (THOMAS R.)
VS.
THE LEGISLATIVE BODY OF THE CITY OF FORT THOMAS, ET AL.
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
COMBS (CONCURS) AND NICKELL (CONCURS)
2011-CA-002191-MR
TO BE PUBLISHED
CAMPBELL

CLAYTON, JUDGE: This is an appeal from the Campbell Circuit Court’s order denying the Appellant, Thomas R. Yocum’s, zoning appeal and the granting of partial summary judgment on the issue of the constitutionality of Kentucky Revised Statute (“KRS”) 100.212 and Zoning Ordinance Section 17.2 (“Ordinance 17.2”) of the City of Fort Thomas.  Based upon the following, we will affirm the decision of the circuit

127.  INSURANCE. CGL. COVERAGE FOR DEATH
PRYOR (BONNIE)
VS.
COLONY INSURANCE
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
COMBS (CONCURS) AND NICKELL (CONCURS)
2012-CA-000227-MR
TO BE PUBLISHED
PENDLETON

CLAYTON, JUDGE: Bonnie Pryor appeals the Pendleton Circuit Court’s decision that granted Colony Insurance Company’s motion for summary judgment. In its decision, the trial court determined that the language in the commercial general liability insurance policy excluded coverage for Glenn Pryor’s death. After careful review, we affirm.

133.  WORKERS COMPENSATION
JJ’S SMOKE SHOP, INC.
VS.
WALKER (MARY J.), ET AL.
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
CAPERTON (CONCURS) AND LAMBERT (CONCURS)
2012-CA-000851-WC
TO BE PUBLISHED
WORKERS’ COMP

VANMETER, JUDGE: JJ’s Smoke Shop (“JJ’s”) petitions for review of the Workers’ Compensation Board (“Board”) opinion which affirmed an opinion of an Administrative Law Judge (“ALJ”) awarding death benefits to Mary Jo Walker, adminstratrix of the Estate of Joshua Pendleton (“the Estate”), and to Priscilla Pendleton, the decedent’s widow, and Jayden Pendleton, the decedent’s daughter. For the following reasons, we affirm.

134.  TERMINATION OF PARENTAL RIGHTS
W. (C. A.), ET AL.
VS.
CABINET FOR HEALTH AND FAMILY SERVICES, ET AL.
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
DIXON (CONCURS) AND TAYLOR (CONCURS)
2012-CA-000875-ME
TO BE PUBLISHED
JEFFERSON

LAMBERT, JUDGE: C.A.W. and T.L.M. appeal from the Jefferson Family Court’s order terminating their parental rights to their children, B.L.M. and S.M.M. After careful review, we affirm the trial court’s orders terminating C.A.W. and T.L.M.’s parental rights.

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