COA 2009 Minutes: August 28, 2009 (Nos. 856-881)

COA 2009 Minutes: August 28, 2009 (Nos. 856-881)

• 26 decisions
• 5 published

PUBLISHED DECISIONS WITH LINKS TO FULL TEXT

859
Howell v. Commonwealth
REVERSING
BEFORE: MOORE AND WINE, JUDGES; HENRY,1 SENIOR JUDGE.
MOORE, JUDGE: Arvid Howell appeals the jury verdict and judgment of the Kenton Circuit Court convicting him for assault in the second degree. After a careful review of the record, we reverse, as the trial court was incorrect in finding, under the circumstances of this case, that second-degree assault is a lesser included offense of first-degree robbery.

864
Ranger Contracting v. Morley
Affirming
NICKELL, JUDGE: Ranger Contracting (Ranger) appeals from a final order of the Workers’ Compensation Board (Board) affirming an Administrative Law Judge’s (ALJ) award of medical benefits to Brock Morley (Morley) and his treating physician, Dr. Anbu Nadar (Dr. Nadar), following the reopening of a claim
resulting from a disputed medical fee. After reviewing the record, applicable statutes and case law, we affirm.

867
Cabiney for Health and Family Services v. Gambrel's Food Mart, Inc.
Affirming
BEFORE: COMBS, CHIEF JUDGE; STUMBO, JUDGE; BUCKINGHAM,1 SENIOR JUDGE.
STUMBO, JUDGE: The Commonwealth of Kentucky, Cabinet for Health and Family Services, appeals from a Judgment of the Franklin Circuit Court holding that Gambrel’s Food Mart should not be disqualified from participating as a vendor in Kentucky’s “Women, Infants and Children” (WIC) program. The lower court determined that Gambrel’s was subject to a waiver from disqualification because disqualification would hinder consumer access to WIC-approved food. The Cabinet argues that Gambrel’s was not entitled to a hearing or judicial review of the hearing regarding its disqualification. Gambrel’s argues that it was entitled to a hearing and judicial review on the grounds that to hold otherwise would be an arbitrary denial of due process. We affirm the circuit court and find that Gambrel’s was entitled to a hearing and judicial review of its WIC disqualification.

870
Young v. Holms
Affirming
BEFORE: CAPERTON, THOMPSON, AND WINE, JUDGES.
CAPERTON, JUDGE: Jennifer Young appeals from an order of the Jefferson Family Court whereby the court ordered the parties’ minor child, Z.H. (hereinafter, the child) to attend St. Athanasius School in Louisville, KY for the academic year of 2008-09. Young asserts that the court’s order violates her First Amendment right to religious freedom and that the court could only appropriately order the child to attend St. Athanasius by finding that he had special needs that would require him to attend private school. We disagree and accordingly affirm the Jefferson Family Court.

878
Wilder v. Wilder
Affirming

BEFORE: LAMBERT AND STUMBO, JUDGES; HENRY,1 SENIOR JUDGE.
LAMBERT, JUDGE: This is an appeal from an order to distribute marital funds entered by the Bell Circuit Court seven months after that court entered the parties’ final divorce decree. Appellant Bill Wilder claims the trial court did not have jurisdiction to enter an order dividing the parties’ marital property more than ten days after the entry of the final decree. Appellee Savannah Wilder defends the order, arguing the trial court was within its authority to grant her relief under Rule 60.02 of the Kentucky Rules of Civil Procedure (“CR”). Upon careful review, we agree with Appellee and thus, affirm.