Kentucky

SCOKY: COURT ORDERS GRANTING MOTION FOR DISCRETIONARY REVIEW ? MARCH 11, 2009

By Michael Stevens

COURT ORDERS GRANTING MOTION FOR DISCRETIONARY REVIEW ? MARCH 11, 2009 

• CODY HEER V. CORA FRASER, ET AL. 
  2008-SC-000280-DG METCALFE 
  2006CA001489

  ACREE, JUDGE: Cody C. Heer appeals from orders of the Metcalfe Circuit Court entered in two separate but related actions. The appeals, therefore, have been consolidated. We will, however, address them independently.

  Heer v Fraser, et al, No. 2006-CA-001735

  In this case, the facts are not in dispute. In January 2005, Heer entered into an oil and gas lease with Cora Fraser and her three sisters (the Fraser sisters) which included the condition that ?[i]f no well be commenced on said premises on or before the 1 [sic] day of July 2005 this lease shall terminate as to both parties.?

  For the Fraser sisters, obtaining access to their landlocked property was as important as tapping the oil reserves under it. So, as consideration, the lease agreement included the provision that, ?[i]nstead of upfront money for lease, Cody Heer will attempt to get permanent right of way, 20 foot [sic] wide.?

  This was not the first time the Fraser sisters leased the property. Approximately 10 to 15 years earlier, East Fork Crude had rights to, and did successfully, extract oil and gas. For part of that leasehold period, East Fork Crude traversed an adjoining property with the permission of the owner, Robert Chadwick. But the withdrawal of Chadwick?s permission caused East Fork Crude to end its lease.

• THOMAS WEIRD V. ERIC EMBERTON
  2008-SC-000372-DG JEFFERSON  
  2007CA000938 - no decision on-line
• DAVID TOWERY V.  COMMONWEALTH OF KENTUCKY 
  2008-SC-000397-DG GRAVES
  2006CA002335
  
  BUCKINGHAM, SENIOR JUDGE: David Towery appeals from a judgment of the Graves Circuit Court convicting him of possession of a firearm by a convicted felon. We affirm. On May 25, 2005, Towery was driving his girlfriend home in her vehicle when he was stopped by police for failing to properly use a turn signal. He was arrested at the scene for driving on a suspended license and for driving under the influence. A search of the vehicle revealed methamphetamine, marijuana, drug paraphernalia, and a loaded 9mm handgun. Towery admitted the weapon was his but denied knowledge of any of the drugs or related items.
• LUTHER WILBERT SEXTON V.  COMMONWEALTH OF KENTUCKY
  2008-SC-000731-DG PULASKI
  2007CA000194

CAPERTON, JUDGE: Luther Wilbert Sexton appeals his conviction of tampering with physical evidence and disorderly conduct in the Pulaski Circuit Court. Sexton argues that it was error for the court to allow his prior convictions for sexual offenses into evidence, and that it was error to deny his motion for a directed verdict. Finding no error, we affirm.

• HARRY FINN, JR. V.  COMMONWEALTH OF KENTUCKY 
  2008-SC-000749-DG LOGAN
  2007CA001554

  MOORE, JUDGE: Harry Finn appeals the Logan Circuit Court?s judgment convicting him of first-degree possession of a controlled substance (cocaine); use of drug paraphernalia; failure to signal; operation of a motor vehicle while under the influence of a substance which impairs driving ability and operation of a motor vehicle without a license. Finn was sentenced to a total of ten years. After a careful review of the record, we affirm.

• EX REL. JACK CONWAY, ATTORNEY GENERAL V.  E. JOHN REINHOLD, D/B/A AMERICAN EVANGELISTIC ASSOCIATION, ET AL. 
  2008-SC-000839-DG FRANKLIN
  2007-CA000661
  
  ROSENBLUM, SPECIAL JUDGE: This case arises from a judgment of the Franklin Circuit Court finding that Medi-Share does not constitute insurance under Kentucky Law and is exempt from state regulation under the religious publication exclusion. The Commonwealth appeals both findings. Although we recognize many similarities between Medi-Share and the business of insurance, we find that Medi-Share does not constitute insurance under Kentucky Law because all risks and obligations to pay remain with the subscriber. Further, we find that Medi-Share does constitute a religious entity free from state regulation under KRS 304.1-120. Therefore, we affirm the judgment of the Franklin Circuit Court.
• KENTUCKY RETIREMENT SYSTEMS V.  TAMMY SIZEMORE 
  2008-SC-000898-DG FRANKLIN
  Related SCOKY CASES:  2008-SC-000326  and 2009-SC-000174
  2007CA002591

  KELLER, JUDGE: Tammy Sizemore (Sizemore) applied for disability retirement benefits through Kentucky Retirement Systems (KERS). The hearing officer recommended denial of Sizemore?s application, and the KERS Board of Trustees (the Board) adopted the hearing officer?s recommendation. The Franklin Circuit Court reversed the Board?s order, and it is from the circuit court?s order that KERS appeals. On appeal, KERS argues that Sizemore?s condition was pre-existing, she was not totally and permanently incapacitated, and the Franklin Circuit Court substituted its opinion of the evidence for that of the fact finder. For the reasons set forth below, we affirm in part and vacate and remand in part.

• REBECCA OUTLAND V.  COMMONWEALTH OF KENTUCKY 
  2008-SC-000902-DG MCCRACKEN
  2008CA000073

  STUMBO, JUDGE: The Commonwealth of Kentucky appeals from Findings of Fact, Conclusions of Law and Order Suppressing Evidence of the McCracken Circuit Court sustaining the motion of Rebecca Outland to suppress the introduction of evidence obtained during a traffic stop. It argues that the circuit court erred in concluding that the police did not have reasonable suspicion sufficient to detain Outland, and that her observed nervous behavior alone did not create reasonable suspicion. For the reasons stated below, we reverse the order on appeal and remand the matter for trial.

• JOHN HICKS, IN HIS OFFICIAL  CAPACITY AS ACTING STATE BUDGET DIRECTOR V. AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC.; COMMONWEALTH OF KENTUCKY DEPARTMENT OF TREASURY; AND TODD HOLLENBACK, TREASURER
  2008-SC-000904-DG FRANKLIN
  2007CA000908
  2007CA000973

  HENRY, SENIOR JUDGE: Mary Lassiter, in her official capacity as the State Budget Director, appeals from a judgment of the Franklin Circuit Court which granted declarative and injunctive relief to American Express Travel Related Services Company, Inc. (AmEx), after determining that a section of the state budget that shortened the period after which a traveler?s check is presumed abandoned was unconstitutional. AmEx has cross-appealed, arguing that the circuit court erred in ruling that the Budget Director was a necessary party to the litigation.

  Kentucky?s Unclaimed Property Act, found at Kentucky Revised Statutes (KRS) Chapter 393, governs the custody and disposition of unclaimed or abandoned property, including traveler?s checks. KRS 393.060 provides that traveler?s checks are presumed abandoned if they have been outstanding for more than fifteen years.

• KIMBERLY LIKINS V.  MARY ELLEN KINSER, ET AL.
  2008-SC-000907-DG OLDHAM
  2006CA000919

  STUMBO, JUDGE: Kimberly Likins (Appellant) appeals an order of the Oldham County Circuit Court granting Oldham County Judge Executive Mary Ellen Kinser and the Oldham County Fiscal Court?s (Appellees) Summary Judgment, thereby dismissing Appellant?s claims of disability discrimination under the Kentucky Civil Rights Act and retaliatory discharge.1 Upon review of the facts and the law we affirm the grant of summary judgment.
  

Full post as published by Kentucky Cases on March 29, 2009 (boomark / email).