The Second Kenton County Courthouse, Covington Kentucky was built in 1899 and opened in 1902.
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April 15, 2016 Published Court of Appeals Decisions
Links are to full text of PDF published cases for this week.
298. Criminal Law. Palpable error.
Paul S. Jackson II vs. Commonwealth of Kentucky
Court of Appeals Published Opinion affirming Jefferson Cir. Ct. conviction of second-degree criminal mischief, intimidating a witness in the legal process, fourth-degree assault, and for being a second-degree persistent felony offender (PFO II) and enhanced sentencing.
300.Criminal Law. RCr 60.02 denial affirmed
Bogdan Djoric vs. Commonwealth of Kentucky
Court of Appeals Published Opinion affirming Kenton Cir Ct denial of RCr 60.02 relief
301. Property. Land dispute. Post-judgment intervention permitted.
Harry Polis vs. Unknown Heirs of Jessie C. Blair
Court of Appeals Published Opinion affirming Letcher Cir Ct judgment finding Polis holding no ownership interest in a disputed parcel of real estate and dismissing a civil action seeking a judicial sale of the disputed lands, as well as trial court’s decision to permit post-judgment intervention by a third-party who had not been named in the initiating complaint.
303. Revenue and Taxation. Local.
Sewell-Scheurmann vs. Michael Scalise
Court of Appeals Published Opinion reversing and remanding Jefferson Cir Ct dismissal of Appellant’s claim against Mayor for failure to state a claim involving suit of city improperly expended sanitation tax revenue
305. Family Law. Inspection of adoption records
John Earl Belden vs. Cabinet for Families and Children
Court of Appeals Published Opinion vacating and remanding Jefferson Cir Ct. order denying adopted person’s motion requesting inspection of his adoption records as family court judge failed to issue findings of fact in denying inspection with instructions to trial court to enter findings of fact and conclusion of law that would permit a meaningful appellate review. Upon the filing of such motion, the Cabinet is required to undertake a search for the biological parents to ascertain whether they consent to the inspection. If the biological parents are deceased, the court may order the inspection.
307. Premises Liability. Fireman’s Rule.
Sharon W. Johnson vs. Norfolk Southern Railway Co.
Court of Appeals Published Opinion reversing and remanding Boyle Cir. Ct. directed verdict in favor of Norfolk on grounds that the Fireman’s Rule barred appellant’s recovery as matter of law in premises liability claim. Held Fireman’s Rule not apply since Norfolk not the owner, occupier of person otherwise protected when calling appropriate public protection agency.
308. Wills and Estates. Claims for Services.
Anna Ruth Gilbert vs. Jeffery Hoover, Executor of Estate of Marshal Reed Stephens
Court of Appeals Published Opinion affirming Russell Cir Ct order granting partial summary judgment for executor on appellant’s claim for reasonable value of her services services rendered to decedent for five and half years to decedent. Appellant was live in companion and beneficiary of decedent’s will.
313. Criminal Law. Search and Seizure. Traffic Stop.
Lamaar Deangelo Kennedy vs. Commonwealth of Kentucky
Court of Appeals Published Opinion affirming Fayette Cir. Ct. guilty plea conditioned on his right to appeal the denial of his suppression motion.
319. Family Law. Harassing Communication’s of parent to third parties prohibited.
John Michael Wedding vs. Heather Lynn Harmon
Court of Appeals Published Opinion Affirming Jefferson Family Ct. order granting mother’s motion to prohibit father from harassing her by by copying and forwarding routine co-parenting emails to individuals within the parties’ local community and from sending mass emails to the parties’ friends, family and other members of their community regarding the parties’ dissolution, custody proceedings and co-parenting. Father’s sole contention on appeal is that the order is an unconstitutional infringement on his speech.
322. Appeals.
Laura Beth Brooks vs. Hugh Junior Byrd, II
Court of Appeals Published Opinion and Order dismissing appeal from Madison Cir. Ct. for for non-compliance with CR 73.02(1)(e)(ii). Additionally, we note non- compliance with CR 76.12(4)(c)(vii).
Some might argue we could invoke CR 75.08 and order the Madison Circuit Court Clerk to supplement the record on a theory that material items were omitted from the appellate record due to “error or accident.” Then, because this is a custody case—for which exceptions are made in the law, Ecolab, 461 S.W.3d at 758—we could apply the relation forward doctrine id., at 759, and consider the notice of appeal to be a challenge to the final order entered on April 17, 2015.
However, the Court of Appeals is not in the habit of practicing cases for litigants. By stretching the well-established rules of procedure we might be able to save this appeal so it can be considered on the merits, but we are not inclined to do so. It would be unfair to Byrd to ignore the rules governing civil practice and procedure. CR 1(2). Further, we are mindful that whatever lengths to which we go in this case will be expected in all future cases and we are simply unwilling to throw out the rules—an act that would be necessary to allow this appeal to go forward on the merits.
To be published tort, insurance and civil procedure decisions:
297. Malicious Prosecution.
Ronnie Mosby vs. James Barry Thompson
COA Not to Be Published Opinion affirming in part and reversing in party Monroe Cir. Ct.. Appellant/defendant claimed he was immune from malicious prosecution based on his testimonial privilege for the grand jury.
309. Medical malpractice. Expert witness.
Hitch vs. St. Elizabeth Medical Center, Inc.
COA Not to Be Published Opinion affirming Campbell Cir. Ct. summary judgment dismissing medical negligence claim for not producing expert on breach of standard of care
310. Contempt. Civil.
Carmen Rebecca Martin vs. Lucia Pop-Schenk Popa
COA Not to Be Published Opinion affirming Jefferson Family Ct. order holding her in contempt for failure to appear at deposition.
318. Negligently securing keys and resultant burglaries.
Helen Ringus vs. Masonic Temple Co., Inc.
COA Not to Be Published Opinion affirming Woodford Cir Ct. order granting partial summary judgment in favor of Masonic dismissing her counterclaim alleging that Masonic Temple was negligence in securing keys to building she rented resulting in series of burglaries.
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