Kentucky

PROFESSIONS: Administrative rules governing loss of licensure : MAGGARD PHD V. BOARD OF EXAMINERS OF PSYCHOLOGY (SC 10/23/2008)

Posted on December 15, 2008
MAGGARD (PHD) V. BOARD OF EXAMINERS OF PSYCHOLOGY PROFESSIONS: Administrative rules governing loss of licensure 2006-SC-000355-DG.pdf PUBLISHED: AFFIRMING IN PART, REVERSING IN PART, AND REMANDING IN PART OPININION BY SCOTT; SCHRODER NOT SITTING FROM FRANKLIN COUNTY DATE RENDERED: 10/23/2008 The Board found that Maggard a psychologist had violated KRS 319 ...

Transfer of circuit cases between divisions and use of extraordinary writs: COX V. JUDGE BRADEN (SC 10/23/2008)

Posted on December 15, 2008
WILLIAM CLYDE COX V. HON. PAUL BRADEN CIRCUIT JUDGE and FREIDA JOAN LOVING (REAL PARTY IN INTEREST) EXTRAORDINARY WRITS AND TRANSFER OF CASES BETWEEN TWO DIVISIONS OF CIRCUIT COURT 2008-SC-000376-MR.pdf PUBLISHED: AFFIRMING OPINION BY NOBLE; MINTON CONCURS IN RESULT ONLY FROM WHITLEY COUNTY DATE RENDERED: 10/23/2008 The Court of Appeals denied a petition for a writ of mandamus directing the trial judge to set aside an order transferring a case between the two divisions of the Whitley Circuit Court and to assign cases in a random manner...

WORKERS COMP: Constitutionality of Consensus Procedure in Pneumoconiosis cases: DURHAM V. PEABODY COAL CO. (SC 10/23/2008)

Posted on December 15, 2008
ANTHONY DURHAM V. PEABODY COAL CO. WORKERS COMP: Constitutionality of Consensus Procedure in Pneumoconiosis cases 2007-SC-000792-WC.pdf 2007-SC-000793-WC.pdf 2007-SC-000794-WC.pdf PUBLISHED: AFFIRMING OPINION OF THE COURT FROM COURT OF APPEALS DATE RENDERED: 10/23/2008 These consolidated appeals dealt with whether the consensus procedures for workers' compensation pneumoconiosis claims are constitutional...

WORKERS COMP: Equitable estoppel applied on statute of limitations since carrier failed to offer settlement or deny claim: HITACHI AUTOMOTIVE PRODUCTS USA, INC. V. CHESTER R. CRAIG, JR. (SC 10/23/2008)

Posted on December 15, 2008
HITACHI AUTOMOTIVE PRODUCTS USA, INC. V. CHESTER R. CRAIG, JR. WORKERS COMP: Equitable estoppel applied on statute of limitations since carrier failed to offer settlement or deny claim 2007-SC-000631-WC.pdf PUBLISHED: AFFIRMING OPINION OF THE COURT; ABRAMSON NOT SITTING FROM COURT OF APPEALS DATE RENDERED: 10/23/2008 Mr...

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CIVIL PROCEDURE: Pro se plaintiff sufficiently rebutted properly supported summary judgment motion in malicious prosecution claim by submitting a notarized response which constituted an affidavit: HUNT V. LAWSON (SC 10/23/2008)

Posted on December 15, 2008
JOHN HUNT V. JAMES D. LAWSON CIVIL PROCEDURE: Pro se plaintiff sufficiently rebutted properly supported summary judgment motion in malicious prosecution claim by submitting a notarized response which constituted an affidavit 2007-SC-000438-DG.pdf PUBLISHED: AFFIRMING OPINION BY MINTON; SCOTT NOT SITTING PIKE COUNTY DATE RENDERED: 10/23/2008 The sole issue on discretionary review is whether, in a malicious prosecution action, the Court of Appeals erred in concluding that genuine issues of material fact presented in James D...

FAMILY LAW: Child custody and effect of mother's relocation outside of state on determination of child's best interests; Fenwick: FRANCES V. FRANCES (SC 10/23/2008)

Posted on December 15, 2008
MARIA REGINA FRANCES V. BOBBY GENE FRANCES FAMILY LAW: Child custody and effect of mother's relocation outside of state on determination of child's best interests; Fenwick 2007-SC-000076-DGE.pdf PUBLISHED: AFFIRMING OPINION BY NOBLE; CUNNINGHAM NOT SITTING TRIGG COUNTY DATE RENDERED: 10/23/2008 TC awarded primary physical custody of Child to Dad...

TORTS: Toxic torts exposure; expert evidence; studies of similar injuries; Daubert inquiry: BURTON V. CSX TRANSPORTATION INC. (SC 10/23/2008)

Posted on December 15, 2008
DAVID RAY BURTON v. CSX TRANSPORTATION, INC. TORTS: Toxic torts exposure; expert evidence; studies of similar injuries; Daubert inquiry 2006-SC-000695-DG.pdf PUBLISHED: AFFIRMING Opinion by Minton JEFFERSON COUNTY DATE RENDERED: 10/23/2008 S. Ct. affirms C...

FAMILY LAW: Modification Of Custody, Timesharing/Visitation, Primary Residence (Fenwick): CHRISTOPHER M. PENNINGTON v. HEATHER M. MARCUM (FKA MILES) (SC 10/23/2008)

Posted on December 15, 2008
CHRISTOPHER M. PENNINGTON v. HEATHER M. MARCUM (FKA MILES) FAMILY LAW: Modification Of Custody, Timesharing/Visitation, Primary Residence (Fenwick) 2006-SC-000642-DG.pdf PUBLISHED: AFFIRMING OPINION BY NOBLE CUNNINGHAM DISSENTS BY SEP OP IN WHICH VENTERS JOINS; VENTERS DISSENTS BY SEP...

CRIMINAL: No double jeopardy re counts of using minor in sexual performance and promoting sexual performance by minor per Blockburger application: Danny Little v. Com. (SC 10/23/2008)

Posted on December 15, 2008
DANNY LITTLE V. COM. CRIMINAL: No double jeopardy re counts of using minor in sexual performance and promoting sexual performance by minor per Blockburger application 2005-SC-000578-MR.pdf PUBLISHED: AFFIRMING MEMORANDUM OPINION OF COURT PIKE COUNTY DATE RENDERED: 10/23/2008 SC affirmed Little's convictions and 70 year sentence for two counts of using a minor in a sexual performance and two counts of promoting a sexual performance by a minor...

CRIMINAL: Death sentence affirmed: Samuel Steven Fields v. Com. (SC 10/23/2008)

Posted on December 15, 2008
SAMUEL STEVEN FIELDS V. COM. CRIMINAL: Death sentence affirmed 2004-SC-000091-MR.pdf PUBLISHED: AFFRIRMING OPINION BY: CUNNINGHAM; SCOTT NOT SITTING FLOYD COUNTY DATE RENDERED: 10/23/2008 In this 59 page opinion, SC affirmed Fields' death sentence following convictions for murder and first-degree burglary...

FAMILY LAW: Child support modification jurisdiction: KOERNER V. KOERNER (COA 10/17/2008)

Posted on December 14, 2008
KOERNER V. KOERNER FAMILY LAW: Child support modification jurisdiction 2008-CA-000080 PUBLISHED: VACATING PANEL: THOMPSON PRESIDING; MOORE, HENRY CONCUR OLDHAM COUNTY DATE FIRST RENDERED: 10/17/2008 Mom alleged that TC lacked subject matter jurisdiction over child support modification...

FAMILY LAW: Grandparent visitation; pro se litigant: GRANT V. LYNN (COA 10/17/2008)

Posted on December 14, 2008
GRANT V. LYNN FAMILY LAW: Grandparent visitation; pro se litigant 2007-CA-002193 PUBLISHED: AFFIRMING PANEL: NICKELL PRESIDING; MOORE, STUMBO CONCUR CHRISTAN COUNTY DATE FIRST RENDERED: 10/23/2008 Dad, pro se, appealed TC orders awarding grandparent visitation to Maternal Grandmother with Dad?s children, based on the best interests of the children...

CRIMINAL: Persistent felony offender sentencing; concurrent/consecutive sentences and enhancement: BATES V. COM (COA 10/17/08)

Posted on December 14, 2008
BATES V. COM. CRIMINAL: Persistent felony offender sentencing; concurrent/consecutive sentences and enhancement 2007-CA-002070 PUBLISHED: AFFIRMING PANEL: MOORE PRESIDING JUDGE; NICKELL, STUMBO CONCUR HARDIN COUNTY DATE FIRST RENDERED: 10/17/2008 CA affirmed Circuit Court's denial of pro se inmate's CR 60...

Zoning commission's authority in reviewing proposed cluster development within context of county's comprehensive zoning plan; spirit of the plan vs. applicable standards: CITIZENS FOR THE PRESERVATION OF JESSAMINE CNTY V. COOPER DEVELOPMENT (COA 10/17/08

Posted on December 14, 2008
CITIZENS FOR THE PRESERVATION OF JESSAMINE COUNTY, LLC V. COOPER DEVELOPMENT, LLC ZONING: Zoning commission's authority in reviewing proposed cluster development within context of county's comprehensive zoning plan; spirit of the plan vs. applicable standards 2007-CA-001460 PUBLISHED: AFFIRMING IN PART, REVERSING AND REMANDING IN PART PANEL: VANMETER PRESIDING; WINE, LAMBERT CONCUR JESSAMINE COUNTY DATE RENDERED: 10/17/2008 Cooper Development, LLC ("Cooper") sought approval from the Jessamine County/City of Wilmore Joint Planning Commission ("Commission") for a cluster development of 45 residential lots on a 156 acre tract within an agriculture zone...

INSURANCE: Torts; bad faith, agent, independent contractor, attorney, insurance company, UCSPA: CINCINNATI INS. CO. V. HOFMEISTER (COA 10/17/2008, 9/26/2008 opinion withdrawn)

Posted on December 14, 2008
CINCINNATI INS. CO. V. HOFMEISTER INSURANCE: Torts; bad faith, agent, independent contractor, attorney, insurance company, UCSPA 2004-CA-002296 PUBLISHED: OPINION REVERSING NO. 20004-CA-002296 AND DISMISSING AS MOOT NO. 2004-CA-002362 PANEL: ACREE PRESIDING JUDGE; KELLER CONCURS IN RESULT; KNOPF CONCURS SCOTT COUNTY (JUDGE PAUL ISAACS) DATE FIRST RENDERED: 10/17/2008 with 9/26/2008 opinion withdrawn The Kentucky COA found the trial court erred by: (1) denying CIC?s motion for directed verdict in that the attorney retained by CIC for its insured was not CIC?s agent, but rather was an independent contractor; (2) denying CIC?s motion for directed verdict on the Hofmeisters? claim of fraud; and (3) denying CIC?s motion for a directed verdict on the Hofmeisters? claim that CIC violated the UCSPA...

Repossession of motor vehicle, security interests, commercially reasonable manner, and parties necessary: HARRINGTON V. ASSET ACCEPTANCE, LLC (COA 10/10/2008)

Posted on December 14, 2008
HARRINGTON V. ASSET ACCEPTANCE, LLC COMMERCIAL LAW: Repossession motor vehicle; security interest; necessary party; commercially reasonable manner 2007-CA-002400 PUBLISHED: REVERSING AND REMANDING PANEL: MOORE, PRESIDING; THOMPSON, HENRY CONCUR COUNTY: OLDHAM DATE RENDERED: 10/10/2008 The Court reversed and remanded a summary judgment in favor of appellee on appellee?s claim to recover a deficiency balance on a simple interest note and security agreement...

Notice and child custody modification: MURPHY V. MURPHY (COA 10/10/2008)

Posted on December 14, 2008
MURPHY V. MURPHY FAMILY LAW: Custody, modification, notice 2007-CA-002298 PUBLISHED: AFFIRMING IN PART, REVERSING IN PART, AND REMANDING PANEL: NICKELL PRESIDING; THOMPSON, ROSENBLUM CONCUR MADISON COUNTY DATE RENDERED: 10/10/2008 The parties shared joint custody and equal parenting time of their three children...

Insurance, quasi-insurance and faith-based medical payment sharing: COM. V. REINHOLD d/b/a American Evangelistic Association; Medi-Share; Christian Care Ministry (COA 10/10/2008)

Posted on December 14, 2008
COM. V. REINHOLD d/b/a American Evangelistic Association; Medi-Share; Christian Care Ministry INSURANCE: Defined, quasi-insurance medical payment prograqm 2007-CA-000661 PUBLISHED:AFFIRMING PANEL: ROSENBLUM PRESIDING; NICKELL CONCURS INRESULT; THOMPSON DISSENTS WRITING SEP...

Probate, will execution and undue influence in will contest: AMOS V. CLUBB (COA 10/3/2008)

Posted on December 09, 2008
AMOS V. CLUBBPROBATE: Will Exection, Undue Influence Issue2007-CA-001181PUBLISHED: REVERSING AND REMANDINGPANEL: LAMBERT, JAMES PRESIDING; STUMBO, THOMPSON CONCUROLDHAM COUNTYDATE RENDERED: 10/3/2008This was a will contest between a man?s wife and stepdaughter on one side and his sisters on the other...

Administrative appeals and exhaustion of remedies applied in dismissal of appeal: BLUEGRASS AUTOMOTIVE, INC. V. KENTUCKY UNEMPLOYMENT INSURANCE COMM. (COA 10/3/2008)

Posted on December 09, 2008
BLUEGRASS AUTOMOTIVE, INC. V. KENTUCKY UNEMPLOYMENT INSURANCE COMM. EMPLOYMENT: Administrative Appeals, exhaustion of remedies 2007-CA-001526 PUBLISHED: AFFIRMING PANEL: DIXON PRESIDING; COMBS, LAMBERT, JAMES CONCUR FRANKLIN COUNT DATE RENDERED: 10/3/2008 In 2002, Bluegrass acquired the assets of Tom Payette Jaguar, Inc...

FAMILY LAW: Jurisdiction; restoration of nonmarital property: FEHR V. FEHR (COA 10/3/2008)

Posted on December 09, 2008
FEHR V. FEHR FAMILY LAW: Jurisdiction; restoration of nonmarital property 2007-CA-001495 PUBLISHED: AFFIRMING IN PART AND REVERSING AND REMANDING IN PART PANEL: THOMPSON PRESIDING; MOORE, HENRY CONCUR OLDHAM COUNTY DATE RENDERED: 10/3/2008 ISSUES PRESENTED: Ex-Husband appealed TC?s decision awarding Ex-Wife a villa and a one-half marital interest in a mini-storage warehouse located in the Netherlands Antilles, alleging that he should have received his nonmarital interest in those properties...

Amusement park personal injury claim, Daubert, duties, summary judgment: WEST V. KKI, LLC D/B/A SIX FLAGS KENTUCKY KINGDOM (COA 10/3/2008)

Posted on December 09, 2008
WEST V. KKI, LLC D/B/A SIX FLAGS KENTUCKY KINGDOM TORTS: Amusement park ride injury; Daubert, summary judgment, duties 2007-CA-001463 PUBLISHED: AFFIRMING PANEL: HENRY PRESIDING; COMBS, KELLER CONCUR JEFFERSON COUNTY DATE RENDERED: 10/3/2008 he COA affirmed the trial court?s summary judgment dismissing the plaintiff?s personal injury claims, since there was no competent testimony that the amusement ride (the Chang) at Kentucky Kingdom was dangerous or defective, and the trial judge?s Daubert ruling striking the expert?s testimony was not an abuse of discretion...

Minutes for Kentucky Court of Appeals for Dec. 5, 2008 (COA 2008:59)

Posted on December 07, 2008
Click here for PDF copy of Minutes posted at AOC with links to each published and non-published decision this week. 15 rendered decisions - Numbered 1342-1356 with 2 published decisions

SC Argument Calendar for Dec 2008 with Dates, Times, Briefs, COA Decisions

Posted on December 07, 2008
Appellate briefs are posted at the Northern Kentucky University, Salmon P. Chase College of Law. Click here. For Kentucky Supreme Court LIVE arguments, click here on date and time of argument. The dates, times, briefs, and COA decision links are below! WEDNESDAY, DECEMBER 10, 2008 9:00 a...

COURT ORDERS GRANTING PETITION FOR REHEARING ? NOVEMBER 26, 2008

Posted on December 01, 2008
HYMAN & ARMSTRONG, P.S.C., ET AL. V. RONALD GUNDERSON (ADMINISTRATOR OF THE ESTATE OF MARY MARGARET GUNDERSON) ET AL. AND SANDOZ PHARMACEUTICALS CORPORATION (N/K/A NOVARTIS PHARMACEUTICALS CORPORATION) V. RONALD GUNDERSON (ADMINISTRATOR OF THE ESTATE OF MARY MARGARET GUNDERSON) ET AL...

Discretionary Review Motions Granted by SC for Nov. 2008

Posted on December 01, 2008
COURT ORDERS GRANTING MOTION FOR DISCRETIONARY REVIEW ? NOVEMBER 19, 2008 The "links" are to the underlying COA decision. BRIAN JAROSZEWSKI, ET AL. V. CHARLES F. FLEGE, ET AL.2008-SC-000112-DG GRANT 2006CA002543re: COA affirmed motion to dismiss under Rule 41...

COA Argument Calendar for December 2008

Posted on December 01, 2008
COA Argument Calendar for November 2008

Minutes for Kentucky Court of Appeals for Nov. 26, 2008 (COA 2008:58)

Posted on December 01, 2008
Click here for PDF copy of Minutes posted at AOC with links to each published and non-published decision this week. 20 rendered decisions - Numbered 1322-1341 with 3 published decisions

Minutes for Kentucky Supreme Court for November, 2008 (2008:57)

Posted on December 01, 2008
Click here for minutes at AOC with links to full text of each decision 25 rendered decisions: 234-257 10 published 9 disciplinary matters 4 grants of discreti0nary review 1 rehearing petition granted Minutes List of all published and nonpublished SCOKY decisions with links to the full text of the decision posted at web site plus orders regarding dismissals, extraordinary writs, discretionary review.

WORKERS COMPENSATION AND UP THE LADDER: R.O. GILES ENTERPRISES, INC. V. MILLS, DECEASED (COA 9/26/2008)

Posted on November 25, 2008
R.O. GILES ENTERPRISES, INC. V. MILLS, DECEASED WORKERS COMPENSATION: Up the ladder and contractors 2008-CA-000709 PUBLISHED: AFFIRMING PANEL: MOORE PRESIDING; NICKELL, STUMBO CONCUR DATE RENDERED: 9/26/2008 R.O.Giles was a landowner of certain land in Knox County...

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