Kentucky Court Report - SCOKY & COAKY

SCOKY MONTHLY CASE SUMMARY REPORT: July 2009 - NONE!

The case summary report is created by the staff of the Supreme Court of Kentucky for the convenience of the bench and bar.  Every effort is made to present accurate information, including status of the case, as of the date of posting.  The most recent status for cases can be found on the Supreme Court, Court of Appeals, or other legal research websites.  Before citing any case, the user should always read the entire opinion and ensure that the case is final.  CR 76.28.

    * July 2009  NO DECISIONS - SCOKY DID NOT MEET IN JULY!

The case summary report is created by the staff of the Supreme Court of Kentucky for the convenience of the bench and bar.  Every effort is made to present accurate information, including status of the case, as of the date of posting.  The most recent status for cases can be found on the Supreme Court, Court of Appeals, or other legal research websites.  Before citing any case, the user should always read the entire opinion and ensure that the case is final.  CR 76.28.

    * July 2009  NO DECISIONS - SCOKY DID NOT MEET IN JULY!

The case summary report is created by the staff of the Supreme Court of Kentucky for the convenience of the bench and bar.  Every effort is made to present accurate information, including status of the case, as of the date of posting.  The most recent status for cases can be found on the Supreme Court, Court of Appeals, or other legal research websites.  Before citing any case, the user should always read the entire opinion and ensure that the case is final.  CR 76.28.

    * July 2009  NO DECISIONS - SCOKY DID NOT MEET IN JULY!

    * July 2009  NO DECISIONS - SCOKY DID NOT MEET IN JULY!

COA 2009 Minutes: August 21, 2009 (Nos. 818-855)

COA 2009 Minutes: August 21, 2009 (Nos. 818-855)

• 36 decisions
• 6 published

PUBLISHED DECISIONS WITH LINKS TO FULL TEXT

818
Lawson v. Com.
CLAYTON, JUDGE: This is an appeal of the denial of a motion to alter, amend or
vacate pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 brought by appellant, Leslie Lee Lawson. For the reasons that follow, we affirm in part, reverse in part and remand the judgment of the Laurel Circuit Court.

830
Fuston v. Com.
BEFORE: NICKELL, STUMBO, AND WINE, JUDGES.

WINE, JUDGE: Richard Fuston (“Richard”) appeals from an order of the Whitley Circuit Court denying post-conviction relief under Kentucky Rules of CriminalProcedure (“RCr”) 11.42 from his conviction for first-degree manslaughter. Thetrial court originally denied relief and Richard appealed to this Court. This Courtaffirmed in part and remanded in part for an evidentiary hearing. On remand, an evidentiary hearing was held, and the trial court again ruled against Richard. Wenow review the issues in Richard’s RCr 11.42 motion; namely, whether thedomestic violence exception to the violent offender statute should apply to him as amatter of law; whether his trial counsel was ineffective for failing to move the trialcourt to apply the domestic violence exception to the violent offender statute; and whether the trial court erred by refusing to qualify his expert in domestic violence at the hearing. We reverse and remand, with direction to the trial court to apply thedomestic violence exception to the violent offender statute.

832
Oller v. Com.
BEFORE: MOORE AND NICKELL, JUDGES; HARRIS,1 SENIOR JUDGE.
HARRIS, SENIOR JUDGE: Cleatus Ray Oller, pro se, appeals from the denial of his motion for post-conviction relief pursuant to Kentucky Rules of Civil Procedure (CR) 60.02. He argues that the trial judge lacked authority to entertain his motion. We affirm.

834
Hicks v. Magoffin County Board of Ed.
BEFORE: COMBS, CHIEF JUDGE; VANMETER, JUDGE; LAMBERT,1 SENIOR JUDGE.

VANMETER, JUDGE: John Hicks appeals from a summary judgment entered by the Magoffin Circuit Court dismissing his claim relating to the failure of the Magoffin County Board of Education (Board) to hire him for the position of special education teacher/director. We affirm. Hicks, a certified special education teacher, applied to the Board seeking the position of special education teacher/director for the 2002-03 school year. The Board declined to hire Hicks, instead hiring a noncertified but otherwise qualified teacher after obtaining an emergency certificate approved by the Kentucky Education Professional Standards Board. Hicks filed a complaint in the Magoffin Circuit Court, and discovery was conducted. Eventually both parties filed motions for summary judgment, and the trial court granted summary judgment for the Board. This appeal followed.

838
Jacob v. Dripchak
BEFORE: COMBS, CHIEF JUDGE; NICKELL AND TAYLOR, JUDGES.

TAYLOR, JUDGE: Robert A. Jacob, M.D. brings this appeal from a May 13, 2008, judgment of the Jefferson Circuit Court confirming an arbitration award entered on November 10, 2007, and as clarified on January 28, 2008, in favor of Bluegrass Orthopaedic Group, P.S.C. We affirm in part, reverse in part, and remand with directions. I. BACKGROUND This case arises from an employment relationship between Bluegrass Orthopaedic Group, P.S.C. (Bluegrass) and Dr. Jacob.

854
C.(P.C.)  v.  C. (C.M.)
BEFORE: COMBS, CHIEF JUDGE; VANMETER, JUDGE; LAMBERT,1 SENIOR JUDGE.

COMBS, CHIEF JUDGE: P.C.C. (P) appeals from a judgment of adoption of the Bell Circuit Court effectively terminating his parental rights and allowing his son’s stepfather to adopt him. The evidence before the court did not establish clearly and convincingly that P willfully abandoned his son. Therefore, we vacate the judgment.

COA 2009 Minutes: August 14, 2009 (Nos. 788-817)

COA 2009 Minutes: August 14, 2009 (Nos. 788-817)

• 30 decisions
• 5 published 
  • 790
    L.(N.)  v. Commowealth
    LAMBERT, SENIOR JUDGE: N.L., a child under eighteen, appeals from an opinion and order of the Kenton Circuit Court that affirmed the Kenton District Court’s judgment that he was a juvenile sexual offender. This court granted N.L.’s motion for discretionary review. Upon review, we vacate and remand for further proceedings consistent with this opinion.
  • 791
    Welsh v. Com.
    NICKELL, JUDGE: Jeanne Anne Welsh (Welsh) appeals from the Scott Circuit Court’s award of summary judgment to her former employer, Phoenix Transportation Services, LLC (Phoenix), on a claim of wrongful discharge in violation of public policy and to Kevin B. Warren (Warren), the co-owner and president of Phoenix, on a claim of tortious interference with her employment. She also appeals from an opinion and order denying her motion to alter, amend or vacate the award of summary judgment to Phoenix and Warren. Welsh contends Phoenix and Warren fired her when she refused to engage in a tax fraud scheme as they had directed. Because Welsh did not establish that Phoenix and Warren had asked her to violate the law, or that she was terminated for her refusal to do so, we affirm.
  • 800
    Hamilton v. Com.
    MOORE, JUDGE: David Lamar Hamilton, IV, appeals from a jury verdict and judgment of the McCracken Circuit Court finding him guilty of wanton assault in the first degree and sentencing him to eleven years’ imprisonment following the injury of his infant son. Because we conclude that the trial court erred in  permitting certain expert testimony and that error was not harmless, we reverse and remand for a new trial.
  • 804
    Thornton v. Office of Fayette County Attorney
    CLAYTON, JUDGE: Trudy P. Thornton (Thornton) appeals from the Fayette Circuit Court's March 17, 2008, summary judgment dismissing her claims against the Fayette County Attorney’s (FCA) Office. The trial court concluded, after reviewing the evidence in the light most favorable to Thornton, that she did not make a  prima facie case of retaliation under the Kentucky Whistleblower Act, and that therefore, her claim failed as a matter of law.
  • 813
    Hamilton v. Trans Union Settlement Solutions
    LAMBERT, SENIOR JUDGE: This appeal and cross-appeal are from the judgment and order of the Floyd Circuit Court granting Appellants recovery from Appellee in the sum of $37,299.42. For the reasons stated herein, we reverse and remand for further consistent proceedings.

COA 2009 Minutes: August 14, 2009 (Nos. 788-817)

• 30 decisions
• 5 published 
  • 790
    L.(N.)  v. Commowealth
    LAMBERT, SENIOR JUDGE: N.L., a child under eighteen, appeals from an opinion and order of the Kenton Circuit Court that affirmed the Kenton District Court’s judgment that he was a juvenile sexual offender. This court granted N.L.’s motion for discretionary review. Upon review, we vacate and remand for further proceedings consistent with this opinion.
  • 791
    Welsh v. Com.
    NICKELL, JUDGE: Jeanne Anne Welsh (Welsh) appeals from the Scott Circuit Court’s award of summary judgment to her former employer, Phoenix Transportation Services, LLC (Phoenix), on a claim of wrongful discharge in violation of public policy and to Kevin B. Warren (Warren), the co-owner and president of Phoenix, on a claim of tortious interference with her employment. She also appeals from an opinion and order denying her motion to alter, amend or vacate the award of summary judgment to Phoenix and Warren. Welsh contends Phoenix and Warren fired her when she refused to engage in a tax fraud scheme as they had directed. Because Welsh did not establish that Phoenix and Warren had asked her to violate the law, or that she was terminated for her refusal to do so, we affirm.
  • 800
    Hamilton v. Com.
    MOORE, JUDGE: David Lamar Hamilton, IV, appeals from a jury verdict and judgment of the McCracken Circuit Court finding him guilty of wanton assault in the first degree and sentencing him to eleven years’ imprisonment following the injury of his infant son. Because we conclude that the trial court erred in  permitting certain expert testimony and that error was not harmless, we reverse and remand for a new trial.
  • 804
    Thornton v. Office of Fayette County Attorney
    CLAYTON, JUDGE: Trudy P. Thornton (Thornton) appeals from the Fayette Circuit Court's March 17, 2008, summary judgment dismissing her claims against the Fayette County Attorney’s (FCA) Office. The trial court concluded, after reviewing the evidence in the light most favorable to Thornton, that she did not make a  prima facie case of retaliation under the Kentucky Whistleblower Act, and that therefore, her claim failed as a matter of law.
  • 813
    Hamilton v. Trans Union Settlement Solutions
    LAMBERT, SENIOR JUDGE: This appeal and cross-appeal are from the judgment and order of the Floyd Circuit Court granting Appellants recovery from Appellee in the sum of $37,299.42. For the reasons stated herein, we reverse and remand for further consistent proceedings.

COA 2009 Minutes: August 7, 2009 (Nos. 760-787)

COA 2009 Minutes: August 7, 2009 (Nos. 760-787)

• 28 decisions
• 6 published 
  • 760 - Price v. Garcia
    Police officer testimony pertaining to weather conditions permitted but not qualified to testify as expert as to area of impact - expert required.
  • 762 - New Life Cleaners
    Parol evidence rule, mistake of law vs. mistake of fact, and merger addressed regarding covenant not to compete in employment agreement.
  • 771 - William v. Kentucky Bank
    Workers Compensation recovery and availability to creditors of estate - exemption application.
  • 772 - Ramsey v. Lambert
    Professions - practice of veterinary medicine, heart scans used to pick horse races.
  • 773 - Com. v. Maynard
    NOT a criminal case.  Dealt with forfeiture lien of real property.
  • 784 - Baptist Hosp. East v. Possanza
    Workers compensation - material misrepresentation of claim and dismissal.

SCOKY ARGS for August 19 & 20, 2009

Appellate briefs are posted at the Northern Kentucky University, Salmon P. Chase College of Law.  Click here.  If the briefs have been filed at NKU at the time of this post, then they are linked here.  If the briefs were not available on line, Click here and enter the Supreme Court, Month, and year to pull of the results for the briefs filed in the month you need to search.

For Kentucky Supreme Court LIVE arguments, click here on date and time of argument.

The issues, dates, times, lower court/judge, counsel, AND links to full text ofbriefs and  COA decision are below!  The actual calendar is on line at AOC - Click here.

WEDNESDAY, AUGUST 19, 2009

9:00 a.m. MILLER V. ADMINISTRATIVE OFFICE OF THE COURTS (2007-SC-609-TG)
"Res judicata. Termination from employment."
Transfer granted 8/21/2008
Jefferson Circuit Court, Judge Karen A. Conrad
For Appellant: Thomas E. Clay
For Appellee: Cynthia Blevins Doll and Lisa Catherine Dejaco
(Note: Justice Abramson and Justice Venters are recused --
Special Justices William T. Cain and John T. McGarvey sitting)

10:00 a.m. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES V. L. J. P., ET AL. (2008-SC-950-DGE)
"Termination of Parental Rights. Intervention. Issues involve an attempt by paternal grandparents to intervene in an involuntary termination of parental rights action."
Discretionary Review granted 4/15/2009
Kenton Circuit Court, Judge Lisa O. Bushelman
For Movant: Cynthia Kloeker
For Respondents: Michael Ryan Voorhees and Mary Miller Salyer

11:00 a.m. COMMONWEALTH OF KENTUCKY, EX REL. ATTORNEY GENERAL JACK CONWAY V. LADONNA H. THOMPSON, IN HER OFFICIAL CAPACITY AS COMMISSIONER, KENTUCKY DEPARTMENT OF CORRECTIONS (2009-SC-107-TG) AND LADONNA H. THOMPSON, IN HER OFFICIAL CAPACITY AS COMMISSIONER, KENTUCKY DEPARTMENT OF CORRECTIONS V. HONORABLE DAVID A. TAPP AND COMMONWEALTH OF KENTUCKY, EX REL. COMMONWEALTH'S ATTORNEY EDDY F. MONTGOMERY (2009-SC-252-TG)
"Interlocutory Relief. House Bill 406. Calculation of release dates for state prisoners. Probation and parole credit."
Transfer granted 4/23/2009 and 5/13/2009
Franklin Circuit Court, Judge Phillip J. Shepherd
For Attorney General Conway and Commonwealth's Attorney Montgomery: Janet Marie Graham, James Hays Lawson, Franklin Todd Lewis, Tad Thomas, Jeanne Deborah Anderson and Lisa Kathleen Lang
For Commissioner Thompson: Vickie L. Wise, Joseph Todd Henning and Wesley Warden Duke

THURSDAY, AUGUST 20, 2009

9:00 a.m. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES, ET AL. V. T. N. H., MOTHER, ET AL. (2008-SC-318-DGE)
"Termination of Parental Rights. Issues involve attempted termination of parental rights of a minor mother also in CHFS custody."
Discretionary Review granted 11/19/2008
Jefferson Circuit Court, Judge Kevin Garvey
For Movants: Erika Saylor and Teresa M. Kinberger
For Respondents: John Harold Helmers, Jr., Troy D. Demuth and John T. Fowler III

10:00 a.m. DENTON V. CITY OF FLORENCE (2008-SC-324-DG)
"Personal Injury. Notice to City. At issue is whether the timely but partially inaccurate notice of injury complied with KRS 411 .110. "
Discretionary Review granted 11/19/2008
Boone Circuit Court, Judge Kevin M. Horne
For Movant: Donald L. Nageleisen
For Respondent: Jeffrey C. Mando, Hugh O. Skees and Matthew Thomas Lockaby

11:00 a.m. ERNST & YOUNG LLP, ET AL. V. SHARON P. CLARK, COMMISSIONER FOR THE KENTUCKY DEPARTMENT OF INSURANCE AND REHABILITATOR OF AIK COMP, ET AL. (2007-SC-770-TG) AND ERNST & YOUNG LLP, V. APPALACHIAN REGIONAL HEALTHCARE, INC., ET AL. (2007-SC-936-TG)
"Application to compel arbitration."
Transfer granted 4/24/2008
Franklin Circuit Court, Judge Thomas D. Wingate
For Appellants: William D. Kirkland, Eric Wade Richardson, Victor Allen Walton Jr., David J. Tocco, Brooks R. Burdette and Christopher H. Giampapa.
For Appellees (Clark, et al.): Perry Mack Bentley, Walter L. Sales, John Melvin Camenisch, Jr., Paul C. Harnice, Justin Drew Clark and Bernard F. Lovely, Jr.
For Appellees: (Appalachian Regional, et al.) Robert W. Bishop, Ronald Richard Parry, J. Guthrie True, Gregory Eugene Mitchell, Robert R. Sparks and Jan De Beer.

FRIDAY, AUGUST 21, 2009

NO ORAL ARGUMENTS

Appellate briefs are posted at the Northern Kentucky University, Salmon P. Chase College of Law.  Click here.  If the briefs have been filed at NKU at the time of this post, then they are linked here.  If the briefs were not available on line, Click here and enter the Supreme Court, Month, and year to pull of the results for the briefs filed in the month you need to search.

For Kentucky Supreme Court LIVE arguments, click here on date and time of argument.

The issues, dates, times, lower court/judge, counsel, AND links to full text ofbriefs and  COA decision are below!  The actual calendar is on line at AOC - Click here.

WORKERS COMP - Coming and going rule used to disallow claim for pilot passenger killed in crash: Airtran Airways, Inc. v. Fortney ( COA 3/27/2009)

Airtran Airways, Inc. v. Fortney
2008-CA-001223
03/27/2009
2009 WL 804216
Opinion by Judge Clayton; Judges Lambert and Wine concurred.

The Court reversed an opinion of the Workers’ Compensation Board reversing an ALJ decision that a widow was not entitled to workers’ compensation benefits when her husband, a pilot, died in an airplane accident while taking a flight on ComAir to Atlanta to begin his workday for AirTran.

The Court first held that the widow’s issue regarding the “going and coming” rule was preserved for appellate review and was properly before the Board when it was listed as a contested issue at the benefit
review conference.

The Court then held that because the deceased was going to his workplace when the accident occurred, the going and coming rule was applicable and that the Board erred by holding that the reciprocal jumpseat agreement between the airlines benefited AirTran so as to bring it under the employer conveyance exception to the coming and going rule.

WORKERS COMP - Coming and going rule used to disallow claim for pilot passenger killed in crash: Airtran Airways, Inc. v. Fortney ( COA 3/27/2009)

Airtran Airways, Inc. v. Fortney
2008-CA-001223
03/27/2009
2009 WL 804216
Opinion by Judge Clayton; Judges Lambert and Wine concurred.

The Court reversed an opinion of the Workers’ Compensation Board reversing an ALJ decision that a widow was not entitled to workers’ compensation benefits when her husband, a pilot, died in an airplane accident while taking a flight on ComAir to Atlanta to begin his workday for AirTran.

The Court first held that the widow’s issue regarding the “going and coming” rule was preserved for appellate review and was properly before the Board when it was listed as a contested issue at the benefit
review conference.

The Court then held that because the deceased was going to his workplace when the accident occurred, the going and coming rule was applicable and that the Board erred by holding that the reciprocal jumpseat agreement between the airlines benefited AirTran so as to bring it under the employer conveyance exception to the coming and going rule.

TORTS, CAUSES OF ACTION, DEFENSES - Sovereign immunity, county sheriff: Wasson v. Morris (COA 3/6/2009)

Wasson v. Morris
2008-CA-000780
03/06/2009
2009 WL 563599
Opinion by Judge Stumbo; Judge Taylor and Senior Judge Graves concurred.

The court affirmed an order of the circuit court granting summary judgment to the county sheriff on a Kentucky state trooper’s negligence claim for injuries he received in the line of duty while responding to a domestic disturbance call.

The Court held that summary judgment was proper in that appellee owed no duty of care to appellant because there was no special relationship.

The Court further held that appellee was absolutely immune from suit in both his official and individual capacities. The Court distinguished the holding in Jones v. Cross, 260 S.W.3d 343 (Ky. 2008) and held that KRS 70.040 did not waive appellee’s absolute official immunity because neither appellee, nor the deputy who allegedly failed to give specific facts about the call to appellant, owed a duty of care to the trooper.

PROPERTY - release of mortgage lien, faxing: Riley v. Flagstar Bank, FSB (COA 3/27/2009)

Riley v. Flagstar Bank, FSB
2008-CA-000174
 03/27/2009
2009 WL 792716
Opinion by Judge Moore; Judges Clayton and Stumbo concurred.

The Court reversed and remanded an order of the circuit court granting a directed verdict
against appellants on their claims for penalties under KRS 382.365, due to appellee’s failure to release a lien on a mortgage.

The Court held that because the version of KRS 382.365 in effect at the time that a fax sent was sent to appellee regarding its failure to timely release the lien did not define what constituted written notice, only reasonable notice was required. Therefore, the trial court erred in holding that the fax could not constitute written notice under the statute in effect at the time.

The Court also held that the trial court erred in holding that the attorney’s signature stamp on the fax created doubt concerning the sufficiency of the notice, as this was a factual issue for the trier of fact. The Court then held that, because private parties were involved in the transmission of the fax, the circuit court erred in holding that appellee’s due process rights were violated.

The Court next held that the circuit court erred in finding that the original mortgage holder should have been given written notice, as the statute in effect at the time only required written notice to the lienholder.

The Court ultimately held that the evidence was sufficient to allow a jury to infer that appellee had received the fax and that such constituted written notice of its failure to release the lien. The determination of whether appellants’ acted in good faith was a question of fact for the jury. Therefore, the trial court erred in granting the directed verdict.

PROPERTY - Oil and gas leases, pipelines, attorney fees: Holly Creek Production Corp. v. Rose (COA 3/27/2009)

Holly Creek Production Corp. v. Rose
2008-CA-000260
 03/27/2009
2009 WL 792722
Opinion by Judge Clayton; Judges Moore and Stumbo concurred.

The Court affirmed in part and reversed and remanded in part a judgment of the circuit court terminating an oil and gas lease.

The Court held that because there was no end date to the landowner’s option to request that pipelines be buried, appellant was required to bury the pipelines with the cost to be determined by the court and that because the lease must be enforced, it was not forfeited.

The Court then held that the trial court properly concluded that there was no genuine issue of material fact and that farm-tap amounts should be included in the calculation of royalties.

The Court finally held that the trial court did not abuse its discretion in dismissing a counterclaim for legal fees incurred to defend against appellee’s claim of trespass, as the action for trespass appeared to be brought in good faith.