COA: April 7, 2017 Court of Appeals Decisions (Minutes)

No. 318-332: 15 Decisions with 4 decisions designated to be published)

PUBLISHED DECISIONS:

322.  Foreclosure with various tort claims – breach of fiduciary duty, tortious interferences with contract relations, and intentional infliction of emotional distress
Seeger Enterprises Inc. v. Town and Country Bank and Trust Co

325 Workers Compensation.  Reimbursement for out of pocket medicals.
Roach v. Owensboro Health Regional Hospital

326.  Torts. Claims for breach of contract, breach of fiduciary duties and professional negligence arising out the parties’ attorney-client relationship.
Saalwaechter v Carroll

330.  Grandparent visitation
O (K.C.) v Cabinet for Health and Family Services


Selected cases that were not designated for publication in tort, insurance and civil law.

328.  Workers Compensation.  Exclusive remedy and operating premises exception.
Quinn v. Ogden


All decisions regardless of publication are posted and can be read, but those decisions designated not for publication cannot be cited as legal authority.  See, KRCP 76.28(4)(c)(“Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.”)

You will find the complete list of this week’s decisions below with number, names of parties, case number, lower court (eg., county), etc. with a hot link to the full text of the decision.  Please note that you will have to check Case Information for each decision for finality, amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.

For links to all our posts on the minutes of the Court of Appeals, then click here.

For the index to archived minutes at the official AOC page, then click here.


MNT04072017

SC: June 2017 Oral Arguments before Ky Supreme Court

Click here for link to table of all monthly oral argument calendars at Kentucky’s Administrative Office of the Courts (AOC) from 2005 to date.

Click here for a link to all of the Kentucky Court Report’s postings on Supreme Court argument calendars.

Click here to catch live web streaming oral arguments on the date and time of the argument.  They are not saved for later viewing.

SCOJUN17

 

COA: March 31, 2017 Court of Appeals Decisions (Minutes) (296 – 317) 22 Decisions with 6 decisions designated to be published)

Published decisions for March 31, 2017 for Court of Appeals:

296.  Jurisdiction and Uniform Trust Code
Beardmore v.  JP Morgan Chase Bank, NA
AFFIRMING – Fayette

300.  Zoning.  Revocation conditional use permit.
Drakes Creek Holding Co. LLC v. Franklin-Simpson County Planning and Zoning Commission
AFFIRMING – Simpson

302.  Zoning.  Reclassifying ordinance.
Southwest Clark Neighborhood Association v. Branham
AFFIRMING – Clark

303.  Post judgement garnishment and claim of false statement by bank
Deal v. First and Farmers National Bank
AFFIRMING – Pulaski

306.  Kentucky Civil Rights Act.  Independent contractor unable to invoke protections since not employee
Powers v. Keeneland Association Inc.
AFFIRMING – Fayette

307.  Post incarceration supervision revocation.
Bailey v. Jones
REVERSING AND REMANDING – Franklin


Selected cases that were not designated for publication in tort, insurance and civil law. NONE SELECTED.


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COA: March 24, 2017 Court of Appeals Decisions (Minutes) (267-295) 29 Decisions with 5 decisions designated to be published)

Published decisions for March 24, 2017:

275.  Criminal Law.  Search and Seizure.  DUI arrest.
Commonwealth of Kentucky v. Hon. Jerry Crosby
AFFIRMING – Oldham

282.  Exhaustion of administrative remedies.
Lee v. Commonwealth of Kentucky 
REVERSING & REMANDING – Fayette

29o.  Divorce.  No jurisdiction to add previously dismissed parties.
Etscorn v. Etscorn
DISMISSING – Jefferson

295. Workers Compensation.
Voith Industrial Services v. Gray
AFFIRMING – WCB


Selected cases that were not designated for publication in tort, insurance and civil law.

270.  Dram Shop.
Watson v. Roof Brothers Wine & Spirits, Inc.
AFFIRMING – McCracken

283.  Defamation claim against Louisville Mayor Greg Fischer
Morgan v. Fischer
AFFIRMING – Jefferson


MNT03242017

COA: March 17, 2017 Court of Appeals Decisions (Minutes) (238-266 with 7 decisions designated to be published)

27 appellate decisions were post with 5 decisions have designated for publication by the Kentucky Court of Appeals for March 17, 2017.

Here are direct links to each of the published cases:

238.  Administrative Law   Request for Adjustment to Medicaid Reimbursement Rate
Northern Kentucky Mental Health Mental Retardation, Inc. v. Commonwealth of Kentucky, Cabinet for Health and Family Services
Court of Appeals Published Opinion REVERSING AND REMANDING – Franklin County

246.  Contracts.   Claim for reimbursement of unpaid real estate commissions.
Miniard v. L.G.S. Holdings, LLC
Court of Appeals Published Opinion AFFIRMING- Jessamine

249.  Zoning.  Cell towers.
Robbins v. Lexington Fayette Urban County Planning Commission
Court of Appeals Published Opinion AFFIRMING – Fayette

250.  Qualified official immunity.  Not given for ministerial duty during police pursuit.
City of Brockville v. Warner
Court of Appeals Published Opinion  AFFIRMING – Bracken

251.  Criminal Law.  Withdrawing guilty plea
Banton v. Commonwealth of Kentucky
Court of Appeals Published Opinion AFFIRMING – Boone

257.  Criminal Law.  Possession of dangerous contraband.
Commonwealth of Kentucky  v. Kenley
Court of Appeals Published Opinion REVERSING AND REMANDING -Fayette

264.   Interpersonal protective order.  Stalking.
Calhoun v. Wood
Court of Appeals Published Opinion AFFIRMING – Hancock

Selected cases that were not designated for publication in tort, insurance and civil law.

None selected.


MNT03172017
All decisions regardless of publication are posted and can be read, but those decisions designated not for publication cannot be cited as legal authority.  See, KRCP 76.28(4)(c)(“Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.”)

You will find the complete list of this week’s decisions below with number, names of parties, case number, lower court (eg., county), etc. with a hot link to the full text of the decision.  Please note that you will have to check Case Information for each decision for finality, amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.

For links to all our posts on the minutes of the Court of Appeals, then click here.

For the index to archived minutes at the official AOC page, then click here.

COA: March 10, 2017 Court of Appeals Decisions (Minutes) (222 to 237 with 5 decisions designated to be published)

The Court of Appeals posted  16 decisions on Mar. 10, 2017, numbered 222-237 with 5 decisions designated for publication.

Here are direct links to each of the published cases:

223.  Fiduciary duty and joint and several liability involving attorneys.  A Fen-phen case
Stanley M. Chesley v. Mildred Abbott
Court of Appeals Published Opinion AFFIRMING – Boone County

Stanley Chesley appeals the Boone Circuit Court’s October 22, 2014 summary judgment in favor of Appellees on their breach of fiduciary duty claims arising from his involvement with the 1998 “Fen-Phen” litigation and settlement.1 The judgment additionally holds Chesley jointly and severally liable with his co-defendants, William J. Gallion, Shirley Cunningham, and Melbourne Mills, who were previously held liable to Appellees, for $42,000,000.00 in compensatory damages. We affirm.

224.  Misappropriating trade secrets, interfering with existing or prospective business relationships, conversion, breach of contract, breach of fiduciary duty, and fraud.
Alph v. Kaufman, Inc. v. Cornerstone Industries Corp.
Court of Appeals Published Opinion AFFIRMING IN PART, VACATING IN PART, AND REMANDING

228. Claims for improper garnishment by bank
Nether wood v. Fifth Third Bank, Inc.
Court of Appeals Published Opinion AFFIRMING – Jefferson

230.  Termination of school employment for conduct unbecoming a teacher
Mike v. Department of Education
Court of Appeals Published Opinion AFFIRMING – Jefferson

237.  Criminal Procedure.  Motion to Suppress.
Greer v. Commonwealth of Kentucky
Court of Appeals Published Opinion AFFIRMING – Fayette

Selected cases that were not designated for publication in tort, insurance and civil law

211.  Premise liability (slip and fall) in public parking facility owned by PARC
Martin v. Parking Authority of River City, Inc.
Court of Appeals Not to Be Published Opinion AFFIRMING – Jefferson

231.  Insurance. Commercial policy – ‘missing property’ or ‘mysterious disappearance exclusion
Khaki Rug Gallery, LLC v. State Auto Property and Casualty Inc. Co.
Court of Appeals Not to Be Published Opinion  AFFIRMING – Jefferson


All decisions regardless of publication are posted and can be read, but those decisions designated not for publication cannot be cited as legal authority.  See, KRCP 76.28(4)(c)(“Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.”)

You will find the complete list of this week’s decisions below with number, names of parties, case number, lower court (eg., county), etc. with a hot link to the full text of the decision.  Please note that you will have to check Case Information for each decision for finality, amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.

For links to all our posts on the minutes of the Court of Appeals, then click here.

For the index to archived minutes at the official AOC page, then click here.

MNT03102017

 

COA: March 3, 2017 Court of Appeals Decisions (Minutes) (206- 221 with 4 decisions designated to be published)

The Court of Appeals posted  16 decisions on Mar. 3, 2017, numbered 206-221 with 4 decisions designated for publication.

Here are direct links to each of the published cases:

207. Criminal Law.  Sentencing Evidence.
Palmer v. Commonwealth of Kentucky
Court of Appeals Published Opinion AFFIRMING – Campbell County

214.  Real Property.  Mineral estate ownership
Potter v. Blue Flame Energy Corp.
Court of Appeals Published Opinion REVERSING and REMANDING – Pike County

215.  Divorce.  Property Settlement.  Claim for diminution in value.
Harvey v. Robinson
Court of Appeals Published Opinion AFFIRMING – Fayette

221.  Family Law.  Grandparent visitation
Nein v. Columbia
Court of Appeals Published Opinion AFFIRMING – Clark

Selected cases that were not designated for publication in tort, insurance and civil law

206.  Underinsured motorist Statute of limitation
Hensley v. State Farm Mutual Automobile Ins. Co.
Court of Appeals Not to Be Published Opinion AFFIRMING – Jefferson County

We previously rendered an opinion reversing and remanding this matter to the trial court. The Kentucky Supreme Court granted discretionary review, vacated our decision, and remanded to us for further consideration in light of State Farm v. Riggs, 484 S.W.3d 724 (Ky. 2016). Having reviewed Riggs, we now affirm.

219.  The case of the removed walnut tree and attorneys fees and costs.
Dunaway v. Harrison
Court of Appeals Not to Be Published Opinion AFFIRMING – Estil

220.  Medical malpractice and missed sponges and suing the wrong party.  No relation back on case of mistaken identity.
Estate of Jeffrey Stevens v. Louisa Home Care Services
Court of Appeals Not to Be Published Opinion AFFIRMING – Lawrence


All decisions regardless of publication are posted and can be read, but those decisions designated not for publication cannot be cited as legal authority.  See, KRCP 76.28(4)(c)(“Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.”)

You will find the complete list of this week’s decisions below with number, names of parties, case number, lower court (eg., county), etc. with a hot link to the full text of the decision.  Please note that you will have to check Case Information for each decision for finality, amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.

For links to all our posts on the minutes of the Court of Appeals, then click here.

For the index to archived minutes at the official AOC page, then click here.

MNT03032017

COA: Feb. 24, 2017 Court of Appeals Decisions (Minutes) (186 through 205 with 3 decisions designated to be published)

3 Published -- Lost OSHA appeal; judge abused discretion in ordering pre-litigation depositions; sole custody remanded for further proceedings. Selection Not to be Published -- Med-mal; UIM and coverage for loss of consortium claims; punitive damages affirmed on appeal

The Court of Appeals posted  20 decisions on Feb. 24, 2017, numbered 186  – 205 with 3 decisions designated for publication.

196.  UPS appealed and lost OSHA finding
Secretary of Labor, Commonwealth of Kentucky v. United Parcel Service, Inc.
Court of Appeals Published Opinion AFFIRMING – Franklin

197.  Insurance.  Reversed trial court judge (Mitch Perry) order granting insurance company request for pre-litigation depositions for abuse of discretion
Bryant v. Allstate Indemnity Co.
Court of Appeals Published Opinion REVERSING – Jefferson

Gary Bryant and Erica Brown appeal the Jefferson Circuit Court order compelling them to participate in pre-litigation depositions and produce documents to Allstate Property and Casualty Company1 (“Allstate”). Allstate filed the motion under Kentucky Civil Rules (CR) 27.01, which allows the taking of pre-action depositions and production of documents. Bryant and Brown maintain the trial court improperly granted the insurance company’s motion for pre-litigation depositions. After careful consideration, we reverse the trial court’s decision.

It is well-established that the “test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Kaminski v. Bremner, Inc., 281 S.W.3d 298, 304 (Ky. App. 2009)(citations omitted). Here, we hold that the trial court did abuse its discretion for not following the strictures of the civil rule. In particular, the trial court granted the petition without ascertaining whether Allstate had a cognizable action against Bryant and Brown; without determining whether any testimony was in danger of being lost, and thus, needed perpetuation pre-action; without insisting that the petition be verified; by granting the petition prior to notice being served on the adverse party; and finally, by its failure to decide whether a hearing was necessary.

202.  Family Law.  Award of sole custody remanding for further proceedings
Barney v. Bingham
Court of Appeals Published Opinion VACATING and REMANDING – Estill

Selected not to be published decisions – torts, insurance and civil:

188.  Medical malpractice, colonoscopy.
Ida Arnold v. Jewish Hospital & St. Mary’s Healthcare, Inc.
Court of Appeals Not to Be Published Opinion AFFIRMING – Jefferson

193.  UIM Coverage Question on insured and loss of parental consortium claim
Hetter v. State Farm Mutual Automobile Ins. Co.
COA Not to Be Published Opinion

While Mariah is an insured under the above policy language, Mariah is not claiming that she suffered bodily injury due to a motor vehicle accident. Rather, Mariah is claiming loss of parental consortium as the result of her father’s death in the motorcycle accident. It is well-understood in Kentucky jurisprudence that a loss of consortium claim is a derivative claim. Daley v. Reed, 87 S.W.3d 247 (Ky. 2002). As a derivative claim, Mariah’s right to recover arises out of and is dependent upon Jason’s right to recover. Jason is not an insured under the plain provisions of the motor vehicle insurance policy issued by State Farm to Thelma nor was he driving or occupying a covered motor vehicle per said policy at the time of his fatal accident. Accordingly, Jason has no legal right to recover damages of any kind under the motor vehicle insurance policy issued by State Farm to Thelma. As a result, Mariah, likewise, is not entitled to recover for loss of parental consortium under said policy.

199.  Award of punitive damages affirmed on appeal.
Mercer v. Estate of John W. Dempster
COA Not to Be Published Opinion  AFFIRMING – Hardin

 


All decisions regardless of publication are posted and can be read, but those decisions designated not for publication cannot be cited as legal authority.  See, KRCP 76.28(4)(c)(“Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.”)

You will find the complete list of this week’s decisions below with number, names of parties, case number, lower court (eg., county), etc. with a hot link to the full text of the decision.  Please note that you will have to check Case Information for each decision for finality, amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.

For links to all our posts on the minutes of the Court of Appeals, then click here.

For the index to archived minutes at the official AOC page, then click here.

MNT02242017

COA: Feb. 17, 2017 Court of Appeals Decisions (Minutes) (162-185 with 5 decisions designated to be published)

Five published decisions - discretionary personal long arm jurisdiction; impeachment with felony; doctor sued for failing to report child abuse resulting in death of child . Selected not to be published - whether doctor was covered as a worker and did exclusive provisions of workers compensation apply to injuries from fall at hospital

The Court of Appeals posted  19 decisions on Feb. 17, 2017, numbered 162 – 183 with 5 decisions designated for publication.

162.  Piercing the corporate veil
Roscoe v. Angelucci Acoustic, Inc. 
Court of Appeals Published Opinion AFFIRMING – Fayette County

169.  Discretionary Personal Long Arm Jurisdiction declined by trial court
Worrell v. Stivers
Court of Appeals Published Opinion VACATING and REMANDING – Fayette

171.  Evidence.  Trial.  Impeachment with a felony conviction under KRE 609 examined.
Dixon v. Commonwealth of Kentucky 
Court of Appeals Published Opinion AFFIRMING – Bell

178.  Claim by estate against doctor for failure to report abuse by deceased child’s uncle – KRS 620.030
A.A. by and through next friend and mother Rhonda Lewis  Dr. Kristy Shutts
Court of Appeals Published Opinion REVERSING and REMANDING – Floyd County

185.  Workers Compensation.  Entitlement to medical benefits and injury exacerbation
Ford Motor Co. v. Curtsinger
Court of Appeals Published Opinion AFFIRMING – Workers Compensation Board

Selected not to be published decisions – torts, insurance and civil:

172.  Workers Compensation.  Exclusiveness remedy and premises liability injury.
Sattenburg v. University Radiological Associates
COA Not to Be Published Opinion REVERSING and REMANDING – Jefferson
Dr. slipped and fell at hospital.  Issue was exclusive remedy provisions under workers compensation and where applied in this incident.  COA noted actions filed in both circuit court and workers compensation and defenses seemed inconsistent.


All decisions regardless of publication are posted and can be read, but those decisions designated not for publication cannot be cited as legal authority.  See, KRCP 76.28(4)(c)(“Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.”)

You will find the complete list of this week’s decisions below with number, names of parties, case number, lower court (eg., county), etc. with a hot link to the full text of the decision.  Please note that you will have to check Case Information for each decision for finality, amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky.

For links to all our posts on the minutes of the Court of Appeals, then click here.

For the index to archived minutes at the official AOC page, then click here.

MNT02172017