Discretionary Review Grants for Oct. 2007: Cases and links to COA opinions

Sixteen cases were granted discretionary review.  The names with a very brief digest of the issue from each lower court decision follows:

• Rudolph v. Johnson Controls; 2006-SC-000416-DG;  Franklin County; 2004-CA-1566. 
  COA held that amendments to KRS 141.200(10) prohibiting retroactive filing for tax overpayments based upon unitary tax filing was unconstitutional.

• Ten Broeck Dupont, Inc. v. Brooks; 2006-SC-000484-DG; Jefferson County; 2005-CA-000893. 
  COA affirmed jury verdict of  ($2,091,000.00) in compensatory and punitive damages based upon former employee of the hospital who forced plaintiff to have nonconsensual sexual intercourse.

• Cantrell v. Ashland Oil, Inc.; 2006-SC-000763-DG; Johnson County;  2003CA001865. 
  COA affirmed trial court’s dismissal of  ground water contamination claims based upon statute of limitations and  concluded that the trial court afforded the appellants a fundamentally fair trial and the jury’s verdict in favor of Ashland regarding claims for surface contamination caused by radioactive materials.

• Hodes v. Ireland; 2006-SC-000890-DG;  Jefferson County. 2005CA002095.
  COA reversed and remanded jury verdict dismissing medical malpractice claim arising from two spinal surgeries and development of cauda equina syndrome.

• Commonwealth v. Gilbert; 2007-SC-000085;  Todd County. 2005CA001203
  COA affirmed suppression of evidence because the officer who had stopped Gilbert’s vehicle for a traffic violation continued to detain him for several minutes after the time it would have taken to write a traffic ticket so as to await the arrival of a narcotics-detection dog (K-9 unit).

• Gaskill v. Robbins (2007-SC-000190-DGE) and Robbins v. Gaskill (2007-SC-000207-DGE); Warren County. 2005CA002088.
  COA reversed and remanded finding the family court clearly erred and abused its discretion in refusing to allow the impeachment testimony of physician to be introduced into evidence on the justification that it was inadmissible hearsay.  In addition, COA also believed the court erred in making findings of fact that relied upon unsworn statements at temporary custody hearing.

• Epps v. Commonwealth;  2007-SC-000312-DG;  Montgomery County. 2006CA000159.
  COA affirmed conviction and trial court’s denial of motion to suppress evidence seized as a result of an allegedly illegal search in which defendant claimed he was unlawfully detained while the officers conducted a dog sniff search of the vehicle in which he was a passenger.

• Couch v. Commonwealth;  2007-SC-000372-DG;  Perry County.  2006CA000942
  COA affirmed conviction under sex offender registration statute.

• Smith v. Commonwealth;  2007-SC-000404-DG;  Laurel County. 2006CA000224
  COA affirmed criminal conviction, rejecting defendant’s appeal claiming prosecutor failed to disclose Giglio information involving plea deal with witness, among other issues.

• Cabinet for Health and Family Services v. A.J.M, A Child; 2007-SC-000436-DGE; Jefferson County; 2006-CA-001008. 
  COA reversed finding the family court abused its discretion in terminating parental rights.  There was absolutely no indication that the family court made any type of independent review of the evidence submitted in the dependency proceeding and  merely adopted the result of the prior adjudication when it determined that the minor had been adjudged to be abused or neglected.

• Hunt v. Lawson;  2007-SC-000438-DG;  Pike County.  2005CA002214
  COA affirmed  summary judgment, which included dismissal of civil rights actions against police officers based upon statute of limitations but reversed and remanded as the statute of limitations had not run on the malicious prosecution claim and as there were fact issues remaining to be determined.

• Caneyville Volunteer Fire Dept.  v. Green’s Motorcycle Salvage, Inc.; 2007-SC-000517-DG;  Grayson County. 2006CA001142.
  COA concluded the fire department  (CVFD) was not an arm of either the county or central state government and that KRS 75.070 is unconstitutional insofar as it purports to confer sovereign immunity upon the City of Caneyville, CVFD, and/or Fire Chief Clark.  COA further found the firefighters had qualified official immunity, but because it was unclear whether the fire chief was entitled to official immunity in this case, and because the City and CVFD’s liability is dependent upon the chief’s liability, COA reversed the circuit court’s award of judgment upon the pleadings as to all defendants and remanded for further proceedings.

• Stone v. Commonwealth;  2007-SC-000576-DG;  Jefferson County. 2005CA001007.
  COA reversed conviction in joint trial when Commonwealth solicited testimony from redacted statement by nontestifying co-defendant.

• TDC Group, LLC d/b/a Molly Malone’s v. Louisville/Jefferson County Metro Gov’t;  2007-SC-000581-DG; Franklin County. 2006CA000113.
  COA held KRS 241.075 was unconstitutional as local or special legislation in violation of Kentucky Constitution in requiring 700 feet distance between licensees.

• Commonwealth v. Rose;  2007-SC-000603-DG;  Estill County.  2005CA001211.
  COA concluded search of the vehicle was a lawful search incident to arrest.

• Talai v. Tennill; 2007-SC-000673-DG; ;Jefferson County. 2005CA001290.
  COA affirmed default judgment but reversed and remanded damages award when claimant failed to answer defendant’s interrogatories  pertaining to his claims for damages.