Cabell County Courthouse, Huntington, W. Va. I had a case filed here a few years back and took these and some photos from the Marshall University campus on a beautiful day with blue skies and more. The clerks here were super friendly and accommodating as they welcomed a Marshall Grad. Loved it. The case did settle later. Loved that too. This courthouse was building between Fourth and Fifth Avenues on land purchased for $24,757. On July 21, 1896, the contract for the construction was let to Charles A. Moses. The first corner stone was laid on November 11, 1899. There was a large parade and a grand ceremony to mark the event. The Courthouse was completed on December 4, 1901. In 1923, construction was undertaken on the west wing. The contract was awarded to King Lumber Company at a cost of $133,900, paid for a three year levy. Then, on August 22, 1938, Frampton & Bowers, architects, were hired to prepare the plans for the new jail and for an east wing to the Courthouse. On December 28, 1938, the contract was awarded to Engstrom and Wynn of Wheeling, West Virginia, for this construction and remodeling in parts of the old building. It was completed March 16, 1940. The cost of the east wing was $208,000 and the cost of the jail was $246,000 for a total cost of $454,000.
Three published decisions.
In Grady vs. Commonwealth of Kentucky, out of Jefferson County, the COA affirmed the sentence for multiple offenses holding that the total was not in excess of the max. A decent discussion addressed multiple crimes and sentences.
In Gaddie vs. Benaitis out of Taylor County, I’m not sure what made this one special to have it designated for publication (so if someone does, then please share with us your thoughts in the comment section). Here the COA affirmed the dismissal of a boundary dispute when the appellant filed no brief but nonetheless dived into the substance substance anyway. Probably because there was no brief filed by the appellant and might as well handle a soft ball decision.
In the third published case, we have Marshall v. Montplast of North America out of the Franklin Circuit Court, in which an employee claimed wrongful termination from her job when she told others that she had discovered one of her coworkers on on the sex offender registry. The statute did not protect the employee for the reporting the statute provided the employer a defense for her termination even tho info was matter of public record and the immunity for the reporting did not cover the co-worker.
In the “not to be published” cases, we find a premises liability claim in Birchfield vs. Norton Hospitals, Inc. for a hospital fall with the COA affirming dismissal when it found no evidence in support on the cause of the fall.
A dismissal for no coverage for uninsured motorist benefits was affirmed for a non-listed motorcycle on an auto policy, rejecting appellant’s public policy and reasonable expectation arguments. Although CLK Multifamily Management LLC v. Greenscapes Lawn & Landscaping Inc. is unpublished, I would suggest those involved in property associations and the agreements they enter into for services such as landscaping, snow removal read this one for a slip and fall on the snow after being “cleared” by the contractor who had an indemnity clause in the contract for landscaping, snow removal etc. Also a reminder of the dangers of filing a one-year tort claim close to the end of the one-year period since the defendant may assert some defenses (eg indemnity etc) which might make it too late for you to fix the complaint.
PUBLISHED DECISIONS:
294. Criminal Law. Sentencing. Multiple sentences. Did not not exceed the max.
Grady vs. Commonwealth of Kentucky
AFFIRMING. Jefferson.
Because illegal sentences cannot go uncorrected, relief from such a sentence is available through four separate avenues: (1) direct appeal; (2) writ; (3) RCr 11.42; or (4) CR 60.02. Jones, 382 S.W.3d at 27. As indicated by the Court in Jones, the imposition of an illegal sentence is so fraught with constitutional infirmities, an aggrieved defendant may seek relief through any one of those avenues. We hold Grady’s CR 60.02 motion is not procedurally barred and address its merits.
In Castle v. Commonwealth, 411 S.W.3d 754, 761 (Ky. 2013), theCourt explained that “the only limitation on the aggregate length of consecutivesentences for defendants whose highest class of crime is a Class A or Class B felony is the seventy-year cap found in KRS 532.110(1)(c).” Under the statutory sentencing scheme, a trial court acts well within its discretion when it imposes an aggregate sentence of more than twenty years when the defendant is convicted of Class D, C, and B felonies.
298. Real property. Boundary dispute. No appellee brief. Addressed merits anyway.
Gaddie vs. Benaitis
AFFIRMING. Taylor.
We disagree with all of Gaddie’s assertions. It was incumbent upon Appellant Gaddie to present ‘“at least some affirmative evidence showing that there [was] a genuine issue of material fact for trial.’” Suter, supra at 841 (citation omitted). The circuit court specifically found otherwise.
307. Torts. Wrongful termination and claim of protection under the sex registration statute.
Marshall v. Montplast of North America
AFFIRMING Franklin Cir Ct dismissal of complaint pursuant to CR 12.02
COA agreed with Montaplast (employer) that the registration statutes do not support employee Marshall’s wrongful discharge claim. KRS 17.547 makes clear those who are immune from suit pursuant to the provisions of KRS 17.500 to KRS 17.580 and KRS 17.991. They include: law enforcement agencies; independent contractors acting under the direction of law enforcement; state and county officials; approved providers; and employees of law enforcement agencies. Clearly, the legislature had no intent to include private employers and employees within the provisions of KRS 17.500 et seq. Consequently, we conclude Marshall simply cannot establish that the registration statutes are directedat providing “protection to the worker in his employment situation.” Grzyb, 700 S.W.3d at 400. Accordingly, we find no error in the trial court’s dismissal of Marshall’s complaint.
Selected cases that were not designated for publication in tort, insurance and civil law.
289. Premises Liability. Affirming summary judgment dismissal of claim for hospital fall.
Birchfield vs. Norton Hospitals, Inc.
AFFIRMING. Jefferson.
305. Uninsured motorist coverage on unlisted vehicle.
Estate of Bobby Story vs. American National Property and Casualty Co.
AFFIRMING. Livingson.
Decedent was killed by uninsured motorist while riding his motorcycle insured with Grange. Decedent had rejected UM. However, Decedent had an automobile policy with American National which did not list the motorcycle and thus was excluded from coverage. Public policy and reasonable expectations arguements not persuasive.
309. Indemnity agreement in snow removal contact at apartment complex
CLK Multifamily Management LLC v. Greenscapes Lawn & Landscaping Inc.
AFFIRMING. Jefferson.
[Note. All those involved in representing condominium or homeowner associations, apartment complexes might want to read this case and then take close look at the landscaping and snow removal agreements to make sure there are no exculpatory clauses in the agreements and that their liability policies have no gaps.]
314. Consumer Protection Act. Travel vouchers and seminars.
Mellor vs. Merritt
AFFIRMING. Meade.
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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 (if not already marked on first page of decision after publication), amendments, rehearing, or other matters including motions for discretionary review (MDR) filed with the Supreme Court of Kentucky. Click Court of Appeals Minutes for entire listing of weekly minutes.
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.”)
