COA 2010 Minutes: April 9, 2010 (Nos.364-381; 364-375)

COA 2010 Minutes: April 9, 2010 (Nos.364-381 AND 364-375)

  • Above link to minutes is full text of minutes with link to full text
    of each decision.
  • 30 decisions
  • Published Decisions:  4
  • Orders dismissing appeal and/or remanding:  0
  • Motion to publish: 0
  • Orders denying petition for rehearing:2
  • Orders denying motion for discretionary review:  0
  • Orders denying petition for writ of prohibition:  2
  • Order granting petition for writ of prohibition:  0
  • Orders denying motion for belated appeal:  0

PUBLISHED DECISIONS – Synopsis with link to full text:

366 – FORECLOSURE
CITIZENS NATIONAL BANK OF JESSAMINE COUNTY VS. WASHINGTON MUTUAL BANK, ET AL.
OPINION REVERSING
NICKELL (PRESIDING JUDGE)
LAMBERT (CONCURS) AND KELLER (CONCURS)
2008-CA-000155-MR
TO BE PUBLISHED
GARRARD

In this foreclosure action, Citizens National Bank of Jessamine County (Citizens) has appealed from the Garrard Circuit Court’s November 2, 2007, order accepting the report and recommendations of the master commissioner which found Washington Mutual Bank held a valid, first and prior security interest in a manufactured home2 owned by Anthony and Kim Reynolds, and finding Citizens’ security interest in the same home was inferior to Washington Mutual’s lien. The master commissioner found Washington Mutual’s filing of the foreclosure action accompanied by the filing of a notice of lis pendens3 placed all creditors on notice of its claimed interest in and to the manufactured home and created a priority claim in it, thereby defeating Citizens’ assertion of a priority claim against the home based upon its later-acquired perfected security interest. After a careful review of the record, the law, and the arguments of the parties, we reverse.

371 – GOVERNMENT EMPLOYMENT
BROWN (GLENN) VS. LOUISVILLE JEFFERSON COUNTY REDEVELOPMENT AUTHORITY, INC.
OPINION AFFIRMING IN PART, VACATING IN PART AND REMANDING
LAMBERT (PRESIDING JUDGE)
ACREE (CONCURS) AND KELLER (CONCURS IN PART, DISSENTS IN PART AND FILES A SEPARATE OPINION)
2008-CA-001890-MR
TO BE PUBLISHED
JEFFERSON

Glenn Brown appeals from the entry of a summary judgment order in favor of Louisville Jefferson County Redevelopment Authority, Inc., (hereinafter “LRA”) and Louisville/Jefferson County Metro Government (hereinafter “Metro Government”) entered by the Jefferson Circuit Court on September 15, 2008. This order dismissed all of Brown’s claims against LRA and Metro Government. On appeal, Brown argues that the trial court erred in dismissing his claims of promissory estoppel/detrimental reliance and fraud arising from an employment relationship between Brown and LRA/Metro Government. After careful review, we agree with Brown that summary judgment in Appellees’ favor was premature as to these claims. We therefore must vacate that portion of the trial court’s order and remand this matter for further proceedings. Brown does not appeal the trial court’s dismissal of his claims of racial discrimination, and thus we hereby affirm those portions of the trial court’s order.

374 – CRIMINAL
RODGERS (PAUL) VS. COMMONWEALTH OF KENTUCKY
OPINION VACATING AND REMANDING
COMBS (PRESIDING JUDGE)
KELLER (CONCURS) AND VANMETER (CONCURS)
2008-CA-002287-MR
TO BE PUBLISHED
GRAVES

Paul Rodgers appeals from his conviction of first- degree sexual abuse in Graves Circuit Court. After careful review of the record and the law, we are compelled to vacate and remand for a new trial.

365
GARDNER (JESSE) VS. VISION MINING, INC. , ET AL.
OPINION REVERSING AND REMANDING
LAMBERT (PRESIDING JUDGE)
KELLER (CONCURS) AND WINE (CONCURS)
2009-CA-000874-WC
TO BE PUBLISHED
WORKERS'

Jesse Gardner seeks review of an opinion and order of the Workers’ Compensation Board (Board), affirming the dismissal of his claim against Vision Mining, Inc. (Vision) by an Administrative Law
Judge (ALJ). Gardner contends that KRS 342.316, which defines the
procedure for coal workers’ pneumoconiosis2 claims (CWP), is
unconstitutional in violation of his right to equal protection under the
law.3    We agree that the statute as applied to coal workers is
unconstitutional and, therefore, we reverse and remand.

1 Senior Judge Joseph E. Lambert sitting as Special Judge by assignment
of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky
Constitution and Kentucky Revised Statutes (KRS) 21.580.367

TORT REPORT DECISIONS BELOW THE FOLD:


WHALEN (TIMOTHY DALE), ET AL. VS. NORFOLK SOUTHERN CORPORATION
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
CLAYTON (CONCURS) AND VANMETER (CONCURS)
2008-CA-000296-MR
NOT TO BE PUBLISHED

GRANT

Timothy Dale Whalen, individually, as administrator of the estate of Timothy Andrew Whalen, and as custodian for minor child, Emilee Whalen, (Estate) appeals from a summary judgment entered in favor of Norfolk Southern Corporation on his wrongful death claim. The Estate argues:
(1) entry of summary judgment in Norfolk’s favor was barred by the law of the case doctrine; (2) material issues of fact existed as to whether Norfolk breached its duty; and (3) summary judgment was improper because of Norfolk’s failure to comply with discovery. After reviewing the record and briefs, we affirm.

369
JONES (CASEY) VS. ERNSPIKER (CHERI), ET AL.
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
COMBS (CONCURS) AND TAYLOR (CONCURS)
2008-CA-001316-MR
NOT TO BE PUBLISHED
JEFFERSON

Casey Jones appeals from a directed verdict entered in favor of Cheri Ernspiker and Chad Ernspiker on a claim of malicious prosecution. Jones argues: (1) the issue of lack of probable cause was an issue of fact for the jury; (2) the trial court admitted improper hearsay testimony; and (3) the trial court erred by permitting evidence demonstrating the existence of probable cause which was acquired after the commencement of the criminal proceeding. We affirm.

372
BARRETT (SAMUEL T.), ET AL VS. MULLIGAN (JANET), ET AL.
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
TAYLOR (CONCURS) AND VANMETER (CONCURS)
2008-CA-001987-MR
NOT TO BE PUBLISHED
JEFFERSON

 This is a wrongful death case in which Samuel Barrett and his business, Don’s Auto Clinic (hereinafter collectively referred to as Appellants), appeal from a jury verdict in which $3,000,000 was awarded to the estate of Bernard Mulligan for pain and suffering. Appellants argue that $3,000,000 is an excessive award and should be reversed. Appellants also claim that the jury should have found Mr. Mulligan was partly responsible for his injuries. Mr. Mulligan’s estate argues that the pain and suffering award was not excessive due to the extent and nature of the decedent’s injuries and that Appellants failed to meet their burden to prove comparative fault on behalf of Mr. Mulligan. We find there was no error in the jury’s verdict and affirm.

368
LEON (FABIAN)
VS.
PENSKE TRUCK LEASING CO.
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
TAYLOR (CONCURS) AND VANMETER (CONCURS)
2009-CA-000930-MR
NOT TO BE PUBLISHED
JEFFERSON

369
BROWN (MARGARET H.), ET AL.
VS.
KERR (PHILLIP), ET AL.
OPINION AFFIRMING
MOORE (PRESIDING JUDGE)
ACREE (CONCURS) AND BUCKINGHAM (CONCURS)
2009-CA-000943-MR
NOT TO BE PUBLISHED
HARDIN

 This case involves a claim for recovery by Margaret H. Brown for her son’s tragic death. Mrs. Brown appeals on her own behalf and as the administrator and personal representative of the estate of her son, Roy Marshal Jeffries. She sought recovery in Hardin Circuit Court for negligence and for the mishandling of Roy’s body from Phillip and Judy Kerr, the parents of Clayton Tae Kerr, the young man who killed Roy. The court entered summary judgment for the Kerrs. 2    After a careful review of the record, we affirm and agree with the circuit court that the Kerrs had no duty of care because Clayton’s actions were not foreseeable and because KRS3 311.330 does not apply in this case.

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