Published and Unpublished Decisions from the Supreme Court of Kentucky for October 24, 2013 (click here for AOC set of minutes) – Nos. 155-166
The Supreme Court of Kentucky this week announced 12 decisions, designating 8 of those decisions for publication (“To Be Published”).
In addition, there were –
- 4 attorney/judiciary disciplinary decisions for publication.
- 3 motions for discretionary review (MDR) were granted.
Click here for complete list of all archived Supreme Court Minutes that you can download from the Administrative Office of the Courts web site.
Click here for THIS month’s minutes with links to all decisions, published and not to be published.
Short summary of a few of tort, insurance, procedure published decisions for this week are (click on the link for the full text of the decision from AOC):
155. LEGAL MALPRACTICE, SOL, CHOICE OF LAW.
BARBARA A. ABEL VS. J. BRENT AUSTIN
Affirming, Fayette
PUB 10/24/2013
Questions Presented:
Legal Malpractice. Statute of Limitations. Choice of Laws. Summary Judgment. This case involves alleged malpractice by attorneys involved in Fen-Phen litigation. The issues include whether the Alabama or Kentucky statute of limitations applies; whether the claims are legal malpractice or fraud, and whether the trial court properly granted summary judgment against all Plaintiffs.
Each of the Appellants in this action was a plaintiff in a lawsuit brought in the Boone Circuit Court,’ Boone County, Kentucky, against American Home Products, the company that marketed the anti-obesity drug combination commonly known as “Fen-Phen.” As further explained below, Appellants’ claims in that case were transferred from the Boone Circuit Court to a similar action pending in Alabama, where Appellants were represented by Kentucky attorney J. Brent Austin (Austin), the Mississippi law firm of Langston, Sweet 86 Freese, P.A. (Langston), and the Alabama law firm of Beasley, Allen, Crow, Methvin, Portis 86 Miles, P.C. (Beasley Allen). Appellants’ claims against American Home Products were then promptly settled.
Several years later, Appellants brought this action in the Fayette Circuit Court alleging that by fraud, misrepresentation, and breach of fiduciary duty, the above-named attorneys, who are the Appellees herein, wrongfully withheld from each Appellant a substantial portion of the settlement award. The Fayette Circuit Court dismissed the action after concluding that Appellants had failed to commence the suit within the time provided by the applicable statute of limitations. The Court of Appeals affirmed.
On discretionary review in this Court, Appellants argue that: 1) the Court of Appeals erroneously affirmed a summary judgment dismissing the claims of all fifty Appellants when the motion before the trial court related to only one particular plaintiff; 2) Appellants’ claims are governed by Kentucky’s statutes of limitations rather than Alabama’s; 3) Appellants’ claims of misrepresentation are subject to the general five-year limitation period established by KRS 413.120(7) and (12), rather than the one-year limitation period for professional service malpractice established by KRS 413.245; and 4) the application of the statutes of limitations is dependent upon material facts which must be resolved by a jury. For the reasons set forth below, we affirm the opinion of the Court of Appeals.
156. CRIMINAL LAW.
Arlen Castle vs. Commonwealth of Kentucky
Affirming COA, Boyle County
PUB 10/24/2013
Questions Presented:
Guilty plea to first-degree robbery, first-degree sodomy, first-degree rape, kidnapping, first-degree sexual abuse and tampering with physical evidence. Trial court did not err in ordering defendant’s sentences to be served consecutively, not to exceed sixty years. KRS 532.110 and 532.080(6)(a).
157. CRIMINAL LAW.
Samantha Mayse vs. Commonwealth of Kentucky
Affirming
Kenton County
Published 10/24/2013
Questions Presented:
Complicity to murder and first-degree complicity to robbery-Life without parole for 25 years. Commonwealth’s references, during voir dire, re-direct of witness and closing argument, to co-indictees’ guilty pleas did not mandate declaration of a mistrial. Admission of jail letters was not error. Effect of co-indictee’s invocation of right not to testify. Jury’s brief access to defense exhibits which had not been placed into evidence did not mandate a mistrial.
158. ADMINISTRATIVE LAW. CERTIFICATE OF NEED.
Comprehensive Home Health Services, Inc. vs. Professional Home Health Care Agency
Affirming
Franklin County
Questions Presented:
Administrative Law. Health Care Providers. Certificate of Need. Issues include whether the State Health Plan (SHP) figures applicable on remand are the current SHP figures or the SHP figures in effect at the time of the agency’s original decision.
Professional Home Health Care Agency (“Professional”) and the Whitley County Health Department (collectively “the Existing Providers”) requested a hearing to oppose an application for a Certificate of Need (“CON”) filed by Comprehensive Home Health Services, d/b/a Family Home Health Care S.E. (“Family Home Health”). The hearing officer disallowed certain evidence offered by the Existing Providers, and, on their appeal following approval of the CON, the Franklin Circuit Court concluded that that particular evidentiary ruling had denied the Existing Providers due process. Because the circuit court’s final order would have limited the evidence on remand to an outdated State Health Plan, the Existing Providers appealed to the Court of Appeals. The appellate court concluded that the current State Health Plan, not the one in place years earlier at the time of the original hearing, must guide the decision on remand. After careful review, we agree and, accordingly, affirm.
159. CRIMINAL LAW.
Yamany Oro-Jiminez vs. Commonwealth of Kentucky
Affirming
Jefferson County
Published 10/24/2013
Questions Presented:
Two counts of first-degree robbery, possession of a handgun by a convicted felon, resisting arrest, five counts of third-degree terroristic threatening, and PFO II-25 years. Trial court’s unchallenged jury selection method did not constitute a substantial deviation from the proper method and did not require reversal. Use of single prior felony conviction to establish the offense of possession of a handgun by a convicted felon and to enhance the first-degree robbery sentences under the PFO statute, did not constitute double enhancement. Juror’s innocent comment to witness did not mandate a mistrial.
160. CRIMINAL LAW.
Erick Vega vs. Commonwealth of Kentucky
Affirming
Fayette County
Published 10/24/2013
Questions Presented:
Concealed Weapon, Issues include whether a gun in a vehicle is considered concealed when partially obscured by an item.”
161. CRIMINAL LAW.
Commonwealth of Kentucky vs. James W. Steadman
Affirming in Part, Reversing in Part, and Remanding
Logan County
Published 10/24/2013
Questions Presented:
Criminal Law. Restitution. Jurisdiction. The questions presented include whether a defendant can consent to a delay in a restitution hearing and disposition beyond ten days after entry of final judgment.
162. CRIMINAL LAW.
Commonwealth of Kentucky vs. Frank D. Hamilton
Reversing and Remanding
Knox County
Published 10/24/2013
Questions Presented:
“Challenge to Reclassification of a controlled substance by the Cabinet for Health and Family Services.”
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