COA 2010 Minutes: January 15, 2010 (Nos. 19-48)

  • 30 decisions
  • 4 published

Published Decisions with digest and link to full text decision at AOC:

21
MEDICAL NEGLIGENCE – SPONGE, NEG PER SE VS RES IPSA LOQUITOR
BAXTER VS. FINE
OPINION AFFIRMING
** ** ** ** ** BEFORE: ACREE, CAPERTON, AND KELLER, JUDGES.

KELLER, JUDGE: Secily Baxter (Baxter) appeals the judgment of the Fayette Circuit Court which dismissed her medical malpractice action against Joseph G. Fine, M.D. (Dr. Fine), after the jury found that Dr. Fine was not negligent in failing to remove a surgical sponge from Baxter’s abdomen following her appendectomy. Specifically, Baxter contends that the trial court erred: (1) when it denied her motions for summary judgment and directed verdict under the doctrine of negligence per se or the doctrine of res ipsa loquitur; (2) when it failed to instruct the jury on the doctrine of res ipsa loquitur; and (3) when it granted partial summary judgment precluding the estate of Joshua Baxter (Joshua) from bringing a cause of action for wrongful death pursuant to Kentucky Revised Statute (KRS) 411.130. For the reasons set forth below, we affirm.

22
CRIMINAL – SENTENCING – DUI
COMMONWEALTH VS. LAMBERSON
OPINION REVERSING AND REMANDING

** ** ** ** ** BEFORE: ACREE AND NICKELL, JUDGES; KNOPF,1 SENIOR JUDGE.
NICKELL, JUDGE:    The Commonwealth brings this interlocutory appeal to determine whether Bryan Lamberson’s 2000 conviction for operating a motor vehicle under the influence of intoxicants (DUI), first offense, may be used to enhance a 2004 charge of DUI, fourth offense.2    The question arises because Lamberson was in a Missouri residential treatment facility when his attorney entered a guilty plea for him in the Bullitt District Court on the 2000 charge. Both parties agree Lamberson was not present when the guilty plea was accepted and entered by the Bullitt District Court and he never executed the written waiver of appearance required by RCr3 8.28(4) when a plea is taken in absentia for an offense subject to enhancement, such as DUI. While conceding noncompliance with RCr 8.28(4), the Commonwealth argues the 2000 conviction for DUI, first offense, remains viable for enhancement purposes because Lamberson twice, without objection, allowed the Commonwealth to use that same conviction to enhance his 2001 conviction for DUI, second offense, and his 2002 conviction for DUI, third offense. Thus, the Commonwealth contends Lamberson’s current challenge is too late and the trial court erred in suppressing the 2000 conviction for DUI, first offense, for enhancement purposes. Having reviewed the evidence, the trial court’s rulings, and the law, we reverse the Jefferson Circuit Court’s pretrial order suppressing use of Lamberson’s 2000 conviction for enhancement purposes and remand the matter to the trial court for further proceedings.

24
WHISTLEBLOWER
NORTHERN KENTUCKY AREA PLANNING COMMISSION VS. CLOYD
OPINION AFFIRMING IN PART AND REVERSING IN PART
** ** ** ** **
BEFORE: ACREE AND LAMBERT, JUDGES; HARRIS,1 SENIOR JUDGE. ACREE, JUDGE: Appellants, Northern Kentucky Area Planning Commission
(Commission) and Dennis Gordon appeal from two orders of the Kenton Circuit Court which combine to deny their motion for summary judgment in its entirety. We affirm in part and reverse in part.

27
FAMILY LAW
GERTLER VS. GERTLER
OPINION AFFIRMING
** ** ** ** ** BEFORE: ACREE AND LAMBERT, JUDGES; HARRIS,1 SENIOR JUDGE.
ACREE, JUDGE: Chad Gertler appeals from a dissolution decree entered by the Casey Circuit Court. He challenges two of the circuit court’s rulings: (1) the classification of certain gifts to the parties as marital, and (2) the award of sole custody of the parties’ children to their mother, Joann Gertler. We affirm.