Published and Unpublished Decisions for COAKY for May 24, 2013

Click HERE For this week’s COA minutes and decisions
No. 498-522;  25 decisions; 3 decisions “To Be Published”
Click here for complete list of all COA minutes that you can download.

This week the following issues were addressed by COAKY.

Three published decisions, all from Jefferson County, and all involved reversals of the trial judge.  First, the criminal law decision involved the trial judge not having jurisdiction to revoke the criminal defendant’s parole.  Second, involved a landlord’s breach of his duty to make repairs.  Third, the family court judge erred in failing to reduce a parent’s child support obligation upon the emancipation of one of the children

PUBLISHED DECISIONS –

502. CRIMINAL LAW
GRUNDY VS.COMMONWEALTH OF KENTUCKY
OPINION REVERSING AND REMANDING
LAMBERT (PRESIDING JUDGE)
DIXON (CONCURS) AND TAYLOR (CONCURS)
2011-CA-001852-MR
TO BE PUBLISHED
JEFFERSON (JUDGE MITCHELL PERRY)

LAMBERT, JUDGE: Allan Grundy appeals from the May 31 and August 25, 2011, orders of the Jefferson Circuit Court denying his Kentucky Rules of Civil Procedure (CR) 60.02 motion seeking to vacate the order revoking his probation and his motion to alter, amend, or vacate pursuant to CR 59.05. After careful review, we reverse and remand.

We agree with Grundy that the trial court lacked jurisdiction to revoke his parole on December 18, 2002, as apparently acknowledged openly by the trial court. Accordingly, the order revoking Grundy’s parole was void. See Lowther v. Moss, 239 Ky. 290, 39 S.W.2d 501, 503 (1931). Kentucky law requires that motions for relief brought under CR 60.02(e) must be brought within a reasonable time, and the Commonwealth argues that the almost eight years that passed in the instant case is not reasonable. However, in Foremost Insurance Company v. Whitaker, 892 S.W.2d 607 (Ky. App. 1995), this Court explained the treatment of void judgments as they pertain to CR 60.02.

511. SUMMARY JUDGMENT. PREMISES LIABILITY AND LEASES. SUBSEQUENT REPAIR EVIDENCE. NEGLIGENCE DUTY.
WARREN VS. WINKLE
OPINION REVERSING AND REMANDING
THOMPSON (PRESIDING JUDGE)
MAZE (CONCURS) AND STUMBO (CONCURS)
2012-CA-000366-MR
TO BE PUBLISHED
JEFFERSON (JUDGE SUSAN SCHULTZ GIBSON)

THOMPSON, JUDGE: Rosyln Warren appeals a summary judgment of the Jefferson Circuit Court in her action against Karen and Joseph Winkle as a result of injuries she allegedly sustained when the ceiling in an apartment she rented from the Winkles collapsed. She alleges that: (1) the circuit court improperly applied the summary judgment standard; (2) the circuit court erred when it found that theWinkles could not be liable for injuries caused by a defect in the area between the apartment’s ceiling and roof; and (3) the circuit court erred when it concluded that under Kentucky law, a tenant cannot recover damages for personal injuries caused by a landlord’s failure to repair. After careful consideration of the applicable law, we reverse and remand.

516. CHILD SUPPORT MODIFICATION AND EMANCIPATION OF CHILD.
DICKENS VS. DICKENS
OPINION REVERSING AND REMANDING
CAPERTON (PRESIDING JUDGE)
ACREE (CONCURS) AND NICKELL (CONCURS IN RESULT ONLY)
2012-CA-001222-ME
TO BE PUBLISHED
JEFFERSON (JUDGE DONNA DELAHANTY)

CAPERTON, JUDGE: Michael Dickens appeals from the trial court’s denial of his motion to modify child support and the subsequent denial of his CR 59.05 motion to alter, amend, or vacate the prior order. After a thorough review of the parties’ arguments, the record, and the applicable law, we agree with Michael that the trial court erred in denying his motion to modify child support based on the emancipation of one of the children. As such, we reverse and remand this matter for further proceedings.

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