Kentucky Court of Appeals Decisions (Minutes ) for August 9, 2013 (Nos. 759-783; 4 cases are “To Be Published”)

Boyle County Kentucky - Danville  Site of 1782 District Court Courthouse

Boyle County Kentucky – Danville
Site of 1782 District Court Courthouse

Published and Unpublished Decisions from the Kentucky Court of Appeals for August 9, 2013

The Court of Appeals announced 25 decisions this date, designating four of those decisions for publication (“To Be Published”).

Click here for complete list of all archived Court of Appeals Minutes that you can download from the Administrative Office of the Courts web site.

Short summary of the published decisions for this week are (click on the link for the full text of the decision from AOC):

764. Statute of Limitations
Kindred Nursing Centers Limited Partnership d/b/a/ Harrodsburg Health Care Center vs. Overstreet
Mercer County, Published, 8/9/2013
STUMBO, JUDGE: Kindred Nursing Centers LTD Partnership, d/b/a Harrodsburg Health Care Center, (hereinafter collectively referred to as “HHCC”) appeal from an Amended Order and Declaratory Judgment of the Mercer Circuit Court in favor of James Overstreet, Administrator of the Estate of Lula Belle Gordon, deceased. HHCC argues that the circuit court erred in failing to conclude that Overstreet’s action alleging personal injury and violation of Kentucky’s Resident Rights Statute (KRS Chapter 216) was time-barred as having been brought outside the one or two year statutory period for personal injury actions. Based on Allen v. Extendicare Homes, Inc., 2012 WL 6553823 (Ky. App. 2012), we conclude that KRS Chapter 216 merely codifies common law liability and does not create a new theory of liability. We find as controlling the one or two-year period of limitation for personal injury actions set out in KRS 413.140 or KRS 413.180, rather than KRS 413.120(2)’s five-year period of limitation for statutory actions. Accordingly, we Affirm in Part and Reverse in Part the Amended Order and Declaratory Judgment on appeal.

766.  Family Law.
Bjelland vs. Bjelland
Campbell, Published 8/9/2013

CLAYTON, JUDGE: Appellant, Mary Bjelland (“Mary”), appeals from the December 16, 2011 order of the Campbell Circuit Court requiring her to share a portion of the expenses of her children’s extracurricular activities with her former husband, Appellee, Thomas Stuart Bjelland (“Thomas”). For the following reasons, we affirm the circuit court’s decision.

772.  Criminal Law
Cox v. Commonwealth of Kentucky
Marion, Published, 8/9/2013

MAZE, JUDGE: This matter is before the Court on discretionary review from an order of the Marion Circuit Court. The circuit court affirmed a jury verdict before the Marion District Court convicting Billy Cox of driving under the influence, second offense (DUI II), failure to wear seatbelts, and possession of an open alcohol container in a vehicle. Cox argues that the police roadblock at which he was stopped was not established or operated in a constitutional manner, and therefore any evidence seized as a result of that stop should have been suppressed. He also argues that the Kentucky State Police (KSP) Trooper failed to establish his qualifications to conduct field sobriety exercises, and thus he should not have been permitted to testify concerning Cox’s performance of those exercises. Finally, Cox maintains that the Trooper’s references to those exercises as “tests” and his use of terms such as “pass,” “fail,” or “indicators” imputed a degree of scientific or technical accuracy to those procedures which was not established by expert testimony. We conclude that the roadblock at issue was not conducted in a constitutional manner. Consequently, any evidence obtained as a result of Cox’s stop must be suppressed. Hence, we reverse the order of the circuit court and direct that the convictions be vacated.

773.  Criminal Law; peremptory challenges; jury instructions
Spencer vs. Commonwealth of Kentucky
Jefferson, Published, 8/9/2013

LAMBERT, JUDGE: Matthew M. Spencer has appealed from the judgment of the Jefferson Circuit Court convicting him of second-degree assault and tampering with physical evidence. He was sentenced to thirteen years’ imprisonment. On appeal, Spencer challenges the validity of Kentucky Rules of Criminal Procedure (RCr) 9.40, which provides for peremptory challenges, as well as the description of“justification” as a “privilege” in the jury instructions. Because both of these issues were unpreserved, Spencer seeks review pursuant to the palpable error rule, RCr 10.26. We affirm.

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