Feb. 8, 2013 Court of Appeals Minutes (Links to Appellate Decisions)

Court of Appeals Minutes Text Onlyblished and Unpublished Decisions from the Kentucky Court of Appeals

February 8, 2013 Court of Appeals Minutes
Nos. 137-168
19 decisions;  6 Cases To Be Published

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

PUBLISHED DECISIONS WITH LINKS TO FULL TEXT:

141.  CRIMINAL PROCEDURE.
BOUNDS (DENNIS W.)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
NICKELL (CONCURS) AND STUMBO (CONCURS)
2011-CA-000671-MR
TO BE PUBLISHED
GRAYSON

ACREE, CHIEF JUDGE: The Court is called upon to decide whether a police officer’s affidavit established probable cause to issue a search warrant for the residence, person, and vehicle of Appellant, Dennis Bounds. Because the factual representation contained in the affidavit provided a substantial basis for the warrant-issuing judge to conclude that probable cause existed, we affirm.

142.  TRUSTS.
VANDER BOEGH (GARY S.), ET AL.
VS.
BANK OF OKLAHOMA, N.A., ET AL.
OPINION AND ORDER AFFIRMING AND GRANTING PETITION FOR RECONSIDERATION
MOORE (PRESIDING JUDGE)
STUMBO (CONCURS) AND THOMPSON (CONCURS IN RESULT ONLY)
2011-CA-000921-MR
TO BE PUBLISHED
MCCRACKEN

MOORE, JUDGE: The above-captioned appellants are minority beneficiaries of two separate trusts, and they appeal an order and judgment of the McCracken Circuit Court concerning the construction of certain trust documents and a petition for instructions filed by their trustee, Bank of Oklahoma, N.A. (“BOK”). For the reasons discussed below, we affirm.

143.  REAL PROPERTY. EASEMENT AGREEMENT.
PAYNE (BEULAH)
VS.
RUTLEDGE (JOEL LYNN), ET AL.
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
MOORE (CONCURS) AND THOMPSON (CONCURS)
2011-CA-000953-MR
TO BE PUBLISHED
KNOX

ACREE, CHIEF JUDGE: This matter involves a dispute over a shared driveway. Beulah Payne filed suit against Stanley and Joel Lynn Rutledge claiming they had breached an agreement concerning maintenance of an easement, demanding that the easement be terminated, and seeking damages for the alleged breach. The Knox Circuit Court entered summary judgment in favor of the Rutledges, finding the uncontested evidence demonstrated they had not breached the agreement and furthermore, breach of the agreement would not warrant termination of the easement. We are asked on appeal to determine whether the circuit court correctly construed the agreement as a matter of law. We affirm the judgment in its entirety.

144. TORTS. DEFENSES. PREMISES LIABILITY.  SOVEREIGN IMMUNITY.
EDMONSON COUNTY, KENTUCKY, ET AL.
VS.
FRENCH (SHARON)
OPINION REVERSING AND REMANDING
LAMBERT (PRESIDING JUDGE)
DIXON (CONCURS) AND TAYLOR (CONCURS)
2011-CA-000963-MR
TO BE PUBLISHED
EDMONSON

LAMBERT, JUDGE: This is an interlocutory appeal from the Edmonson Circuit Court’s denial of a motion to dismiss by the defendants on the basis of sovereign immunity. Because we agree with the defendants that they are entitled to immunity, we reverse the circuit court’s ruling and remand for dismissal of the complaint.

157.  REGULATORY LAW AND CELL TOWERS.
MASONIC HOMES OF KENTUCKY, INC.
VS.
LOUISVILLE METRO PLANNING COMMISSION, ET AL.
OPINION AFFIRMING
DIXON (PRESIDING JUDGE)
ACREE (CONCURS) AND VANMETER (CONCURS)
2011-CA-002041-MR
TO BE PUBLISHED
JEFFERSON

DIXON, JUDGE: The Louisville Metro Planning Commission (“the Commission”) approved the application of Pegasus Tower Company, Ltd. (“Pegasus Ltd.”), to construct a cellular communications tower on a tract of land adjacent to property owned by Appellant, Masonic Homes of Kentucky, Inc.  (“Masonic”). Masonic sought judicial review in Jefferson Circuit Court, and the court affirmed the Commission’s decision and dismissed the appeal. Masonic now appeals the order of the Jefferson Circuit Court. Finding no error, we affirm.

161.  FAMILY LAW.  RELOCATING OUT OF STATE WITH MINOR CHILD.
WAHLKE (KRIS)
VS.
PIERCE (NOW CORRIGAN) (KRISTEN)
OPINION REVERSING AND REMANDING
TAYLOR (PRESIDING JUDGE)
NICKELL (CONCURS) AND VANMETER (CONCURS)
2012-CA-000022-ME
TO BE PUBLISHED
CAMPBELL

TAYLOR, JUDGE: Kris Wahlke brings this appeal from October 8, 2010, October 11, 2010, March 17, 2011, and December 2, 2011, orders of the Campbell Circuit Court, Family Court Division, granting a motion filed by Kristen Pierce Corrigan to relocate with the parties’ minor child to Texas and denying a motion filed by Kris to dismiss Kristen’s motion due to lack of jurisdiction. We reverse and remand.

167. REVENUE AND TAXATION.  RECALL ON AD VALOREM TAX.
WEBSTER COUNTY BOARD OF EDUCATION
VS.
FRANKLIN (NEWELL) (VALERIE)
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
MOORE (CONCURS) AND NICKELL (CONCURS)
2012-CA-000811-MR
TO BE PUBLISHED
WEBSTER

LAYTON, JUDGE: The Webster County Board of Education (hereinafter “the Board”) appeals from the Webster Circuit Court’s decision granting the Webster County Clerk’s motion to dismiss the petition of the Board, which had contested the validity of a recall petition for an ad valorem property tax. The Board also appeals the trial court’s denial of its later motion to alter, amend or make additional findings. Because we find no error with the trial court’s dismissal, we affirm.

168.  APPEALS. DISMISSED FOR UNTIMELY FILING.
STANLEY (JEREMY), D/B/A APC AND APC, LLC
VS.
C & R ASPHALT, LLC
OPINION AND ORDER DISMISSING
ACREE
CAPERTON (CONCURS AND FILES SEPARATE OPINION) AND THOMPSON (DISSENTS AND FILES SEPARATE OPINION)
2012-CA-001025-MR
TO BE PUBLISHED
FAYETTE

ACREE, CHIEF JUDGE: We are asked to consider whether Jeremy Stanley’s appeal must be dismissed for want of jurisdiction because it was filed more than thirty days after entry of the circuit court’s judgment and following a pro formaCR1 59.05 motion. In accordance with Matthews v. Viking Energy Holdings, LLC, we sustain the appellee’s motion. 341 S.W.3d 594 (Ky. App. 2011).

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