Kentucky Court of Appeals Decisions (Minutes ) for September 27, 2013 (Nos. 908-928); 21 decisions announced with 8 decisions designated “To Be Published”)

Historical Marker at Carrollton, Kentucky

Historical Marker at Carrollton, Kentucky

Click here for AOC set of minutes of Kentucky Court of Appeals Decisions (Minutes ) for September 27, 2013 (Nos. 908-928);  21 decisions announced with 8 decisions designated “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):

908.  Torts. Immunity.
Transit Authority of River City vs.  Bibelhauser
Jefferson Cir. Ct.
Published 9/27/2013

VANMETER, JUDGE: Transit Authority of River City (“TARC”) and Dalton Holt appeal from the Jefferson Circuit Court order denying TARC’s motion for partial summary judgment. The issue before us is whether TARC enjoys immunity from the underlying negligence action filed by Adam Bibelhauser to recover injuries he sustained after being struck by a TARC bus that was operated by Holt.1 For the following reasons, we agree with the trial court that TARC is not immune from suit and affirm its order denying TARC’s motion for summary judgment. 

911. Family Law. Maintenance and child support. Attorneys fees.
Penner vs. Penner
Jefferson Cir. Ct.
Published 9/27/2013

LAMBERT, JUDGE: Thomas Penner (Tom) appeals from the Jefferson Circuit Court, Family Division’s September 12, 2011, and December 6, 2011, orders regarding calculation of maintenance and child support, the division of the parties’ assets, and the award of attorney’s fees to Linda Lane Blevins Penner (Lane). After careful review of the record, the hearings, and the parties’ arguments, we affirm in part, reverse in part, vacate in part, and remand. 

913.  Criminal.  Evidence, admissibility of 911call.
McDonald vs. Commonwealth of Kentucky
Jefferson Cir. Ct.
Published, 9/27/2013

LAMBERT, JUDGE: Clarence McDonald directly appeals from the Jefferson Circuit Court’s conviction for assault in the second degree, arguing that his conviction should be reversed and remanded because the trial court improperly admitted a 911 call into evidence at trial. After careful review, we affirm.

914.  Criminal Law
Carrigan vs. Commonwealth of Kentucky
Barren Cir. Ct.
Pub. 9/27/2013

COMBS, JUDGE: Joseph Michael Carrigan appeals the judgment of the Barren Circuit Court which found him guilty of nineteen criminal offenses and sentenced him to a total of ten-years’ incarceration. After our review, we vacate and remand.

915. Criminal Law
Perdue vs. Commonwealth of Kentucky
Fayette
Pub.  9/27/2013

LAMBERT, JUDGE: Carlos Andrew Perdue has directly appealed from the final judgment of the Fayette Circuit Court convicting him of the misdemeanor offenses of resisting arrest, possession of drug paraphernalia, and second-degree disorderly conduct and fixing his punishment to an indeterminate sentence of twelve months, probated for two years. Perdue contends that the trial court should have granted a directed verdict on the resisting arrest and disorderly conduct charges and that the jury was improperly instructed on the possession of drug paraphernalia charge. Finding no error, we affirm the conviction. 

917.  Unemployment Benefits.

Miller vs. Kentucky Unemployment Ins. Comm.
Jefferson Cir. Ct.
Published 9/27/2013

LAMBERT, JUDGE: Jennie Miller has appealed from the opinion of the Jefferson Circuit Court affirming the decision of the Kentucky Unemployment Insurance Commission (the Commission) to deny her application for unemployment benefits. Finding no error in the procedures followed or in the ultimate decision, we affirm.

920.  Jurisdiction. Subject matter
Bulldog’s Enterprises, Inc. vs. Duke Energy
Kenton
Published 9/27/2013

LAMBERT, JUDGE: Bulldog’s Enterprises, Inc., d/b/a Bulldog’s Roadhouse (hereinafter “Bulldog’s”), appeals from the July 9, 2012, order of the Kenton Circuit Court that dismissed its case for lack of subject matter jurisdiction, holding that the Public Service Commission (hereinafter “PSC”) has exclusive jurisdiction over the issue central to each of the claims raised by Bulldog’s and that Bulldog’s failed to exhaust its administrative remedies. We have carefully considered the record and the parties’ arguments, and finding no error as a matter of law, we affirm the circuit court’s decision. 

925.  Commissioner’s Sale; attorney fees.
Ruby vs. Scherzer
Jefferson
Pub. 9/27/2013

LAMBERT, JUDGE: Attorney John H. Ruby has appealed from the October 1, 2012, order of the Jefferson Circuit Court denying his motion to alter, amend, or vacate the court’s August 29, 2012, order granting his former client Marcia Scherzer’s motion to set aside a summary judgment, remanding a commissioner’s sale, and dismissing his action. Because we agree with the circuit court that Ruby misapplied Kentucky Revised Statutes (KRS) 376.460, the attorney’s lien statute, we affirm. 

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