Kentucky Court Report - SCOKY & COAKY

Discretionary Review Grants by SCOKY - Jan. 16, 2008

• Brownlee and USA v. Ky. Unemployment Ins. Commission 2007-SC-000126-DG, Hardin
  2005CA002255 - http://opinions.kycourts.net/coa/2005-CA-002255.pdf
  COA affirmed trial court's award of unemployment benefits for good cause which the Army challenged since DOD employees retiring early and receiving voluntary separation incentives.
• Mattingly v. Stinson, 2007-SC 000221, Hardin
  2006CA000337 http://opinions.kycourts.net/coa/2006-CA-000337.pdf
  COA ruled that UIM carrier to be identified at trial even when liability limits not advanced per Coots.
• KFBM v. Stinson, 2007SC000222, Hardin
  See Mattingly v. Stinson
• Branham v. Stewart, 2007SC000250-DG, Pike
  2006CA000322 http://opinions.kycourts.net/coa/2006-CA-000322.pdf
  Legal malpractice claim and issues pertaining to attorney client relationship and next friend or minor.
• DirectTV, Inc. v. Treesh, 2007SC000714-DG, Franklin
  2006CA001983 http://opinions.kycourts.net/coa/2006-CA-001983.pdf
  At issue is whether the gross receipts of providers of direct satellite broadcast and wireless cable service (“DBS”) are subject to taxation by local school districts pursuant to KRS 160.614(3).

Discretionary Review Grants by SCOKY for Dec. 2007

Ten motions for discretionary review were granted in December.

Greg Beaver v. Kevin Oakley. 2005CA001471.
http://162.114.92.72/COA/2005-CA-001471.pdf

COA held trial court erroneously granted summary judgment in favor of employer finding he was not entitled to the up the ladder defense under the exclusive remedy provisions under KRS 342.690(1) regarding workers compensation claims.

Richard T. Davis v. Peggy Hensley.  2005CA001785.
http://162.114.92.72/COA/2005-CA-001785.pdf

COA excluded government employees from protection of “up the ladder” defense.

Ky. Cabinet for Health and Family Services v. T.G., A Mother.

2006CA001008.
http://162.114.92.72/COA/2006-CA-001008.pdf

COA held family court abused its discretion in terminating parental rights of minor and placing minor up for adoption.

Shannon Gibson v. Com. Of Kentucy.  2006CA001147.
http://162.114.92.72/COA/2006-CA-001147.pdf

COA affirmed trial court’s refusal to issue dismissal of indictment with prejudice, finding no abuse of discretion.

David Morrow v. Com. Of Kentucky.  2005CA001645.
http://162.114.92.72/COA/2005-CA-001645.pdf

COA held that the hearing officer in disability retirement claim should have considered the cumulative effects of a disability claimant's ailments in assessing eligibility for benefits.

Board of Trustees of Kentucky Retirement Systems v. Carolyn Ledford.  2006CA001808.
http://162.114.92.72/COA/2006-CA-001808.pdf

COA found that the hearing officer in disability retirement claim ignored objective medical evidence from claimant's treating physicians and 'cherry picked' from the evidence.

Ashland Oil, Inc. v. Woodie Cantrell.  2003CA001784.
http://162.114.92.72/COA/2003-CA-001784.pdf

COA found among other issues in affirming the lower court judgment that the Cantrells timely brought their claims alleging that Ashland's oil-production activities contaminated their properties and that Ashland's negligence caused the contamination, but they failed to prove that the above-background levels of the contamination were caused any actual and present injury to their properties. Consequently, the trial court acted within its discretion by excluding testimony which was not probative of this issue. 

Johnson Controls v. Ky. Finance and Administration Cabinet.  2004CA001566.
http://162.114.92.72/COA/2004-CA-001566.pdf

COA reversed the circuit court and held that the retroactivity period created by H.B. 541 which nullified income tax overpayment claims exceeded the constitutional limits and violates Appellants' due process rights.

Debra Ireland v. Jonathan Hodes, M.D.  2005CA002095.
http://162.114.92.72/COA/2005-CA-002095.pdf.

COA found trial court committed error in medical negligence case by allowing defendant to impeach plaintiff's expert with evidence that the expert doctor had lost his medical license and details surrounding the surrendering of that license.

COA affirmed conviction finding no error in trial court's failure to give entrapment instruction and a “mere presence” instruction and no error in denial of defendant's request for a directed verdict.

Kentucky Retirement Systems v. Sandra Bowens.  2006CA000941.
http://162.114.92.72/COA/2006-CA-000941.pdf

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.
  

SCOKY - October Grants of Discretionary Review - Only 2 grants

Two discretionary grants with links to COA decisions

• JAMES B. TENNILL, SR. V. CYRUS M. TALAI
  2007-SC-000046-DG JEFFERSON
  2000-CA-000929.pdf
• ADRIENNE PARK V. COMMONWEALTH OF KENTUCKY
  2007-SC-000230-DG JEFFERSON
  2006-CA-000145

August 2007 SCOKY Grants of Discretionary Review from SCOKYBlog.com

Thanks to Trevor Wells at SCOKYBlog for his digest and links to August 2007 Discretionary Review Grants posted at his site.

However, more was posted than just the grants but an eloquent rendition of one young lawyer's experiences with Justice William McAnulty. 

Too often in this world we forget that the person in the news is not just the single dimensional figure portrayed by the media, and in many ways they are no different than you or me - having a personable side, a side that interacts with those near and close to them, leaving a profound effect on all whom they touch. 

Justice McAnulty gave those of us who were not close to him a glimpse into the quality of his character and his humor when he came forth in the Courier Journal disclosing his illness and assuming all responsibility.

Mr. Wells shared with us another facet that only those who came within the Justice's orbit would typically have known.

June 2007 Grants of Discretionary Review by SCOKY

Thanks to Trevor Wells at SCOKYBLOG (www.SCOKYBlog.com) who has done the Court's Minutes one step better by posting the names of the cases granted discretionary review by SCOKY AND links to each of appellate opinions from the lower court.

• June 2007 Discretionary-Review Grants <<-- click on heading!

In addition to the links, SCOKY Blog remarks on a statistic I am not familiar with - DR-Grant-Deficit.

Any comments on the significance of this from any reader would be appreciated!

SCOKYBlog has post of May Discretionary Review Grants with links to COA decisions

Click on May 2007 Discretionary Review Grants posted at SCOKYBlog for May 24, 2007 Grants of discretionary review in 8 cases with links to COAKY decision text.

List of Cases Pending Discretionary Review before SCOKY

The AOC maintains a web page in Adobe PDF (tm) format which lists all cases pending before SCOKY on discretionary review.  Although the list does not link to the COAKY decision or case information, it does provide the following:

• Case Name
• Case Number
• Short digest of issues
• Date discretionary review granted

The only down side is that the list is sometimes dated by one or two months.  For example, today's list only contains cases granted discretionary review as of 2/14/2007 without the March or April decisions.

This page can be searched within your Adobe Reader (tm) program regarding words to track down issues that may be pending. 

I further understand that the list is updated when cases are decided and thus no longer pending.

COURT ORDERS GRANTING MOTION FOR DISCRETIONARY REVIEW – APRIL 11, 2007

UPDATE:  4/27/2007 - SCOKYBLOG has gone one better and linked the cases granted discretionary review to the corresponding Court of Appeals decision at April Discretionary Review "Grants".

SPRINT COMMUNICATIONS  COMPANY, L.P. V. ALBERT E. LEGGETT III, AS TRUSTEE  OF THE ALBERT E. LEGGETT FAMILY TRUST
2005-SC-001023-DG JEFFERSON

DAVID SOMMERS V. COMMONWEALTH OF KENTUCKY
2006-SC-000529-DG FULTON

TIMOTHY MORGAN V. CANDRIA SCOTT AND JAMES E. SCOTT, JR. CANDRIA SCOTT AND
2006-SC-000701-DG PIKE

JAMES E. SCOTT, JR. V. MOORE PONTIAC, BUICK, GMC, INC.
2006-SC-000693-DG PIKE

SEBASTIAN-VOOR PROPERTIES, LLC., ET AL. V. LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT, ET AL.
2006-SC-000732-DG FAYETTE

KAREEM ALI HENRY V. COMMONWEALTH OF KENTUCKY
2006-SC-000767-DG JEFFERSON

COMMONWEALTH OF KENTUCKY V. JOHN W. BLACK
2006-SC-000781-DG FAYETTE

RONALD HORVATH V. DARLYNN RENEE HORVATH
2006-SC-000837-DG KENTON

SANFORD WILLIAMS, ADMINISTRATOR OF THE ESTATE OF PAUL WILLIAMS V. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
2006-SC-000856-DG MENIFEE

TRUSERV CORPORATION V. FLEGLES, INC.
2007-SC-000155-DG CARLISLE

TORTS: SCOKY grants discretionary review in Com., Transportation Cabinet, Department of Highways v. Shannon D. Sexton regarding duty of landowners for trees

The Kentucky Supreme Court granted discretionary review in Commonwealth, Transportation Cabinet, Department of Highways v. Shannon D. Sexton, (2006-SC-0454-DG).  Click here for previous digest and link to text at this site.

This is an appeal of a decision from the Jefferson Circuit Court, Judge Ann Shake presiding.

The Court of Appeals in a published decision written by Judge Henry (with Judge Combs concurring) held "that a landowner in an urban or heavily populated area has a duty to others outside of his land to exercise reasonable care to prevent an unreasonable risk of harm arising from defective or unsound trees on the premises."

SCOKY Justice Will Schroder while sitting as a COA Judge filed a dissenting opinion in the COA decision:

Our first inquiry is whether or not the Department owed a duty of care to Sexton. We all agree that under present law, there is no duty. The majority believes it’s time to create a duty. I must dissent. The General Assembly could, and probably should consider creating such a duty, but not the courts. Also, the urban/rural distinction invites a number of questions, such as do we classify by city limits, population density, lot size, etc?

Attorney Daniel Alvarez is representing the claimant injured by the tree, and Andrew Draut the Commonwealth.