| PUBLISHED
DECISIONS - COURT OF APPEALS -
10/14/2005 NONE |
| NON
-PUBLISHED DECISIONS - COURT OF APPEALS -
10/14/2005 |
2004-CA-002364
NOT PUBLISHED 69
Date: 10/14/2005
|
FLAGET
FUELS, INC. V. COM.
ADMINISTRATIVE LAW - Penalties by
Agency for Violations of Mining Regs.
|
2004-CA-001516
NOT PUBLISHED 37
Date: 10/14/2005
|
POLLILTT
V. COM. PUBLIC SERVICE COMM.
ADMINISTRATIVE LAW - Injunction
Affirmed PSC injunction for numerous
safety violations involving gas lines.
|
2004-CA-000901
NOT PUBLISHED 29
Date: 10/14/2005
|
HINES
V. FURLONG
CIVIL PROCEDURE - STATUTE OF LIMITATIONS
(Notes)
|
2004-CA-001006
NOT PUBLISHED 53
Date: 10/14/2005
|
BROWN
V. LOWE'S HOME CENTERS, INC.
CIVIL PROCEDURE - Dismissal
Dismissal
with prejudice should be granted
only in the most extreme cases. The
trial court below failed to provide
sufficient findings showing that it
considered all of the factors listed in
Ward v. Housman, 809 S.W.2d 717 (Ky.
App., 1991), before granting a dismissal
without prejudice. The CAs therefore vacated
and remanded the dismissal due to the trial
court's lack of findings in either its
written orders or oral statements.
|
2004-CA-001305
NOT PUBLISHED 55
Date: 10/14/2005
|
FELIX
V. LYKINS ENTERPRISES, INC.
CIVIL PROCEDURE - Conflicts of Law (Kentucky
law vs. out of state)
The
majority of the CA panel ruled that the
trial court below wrongfully entered an
order for summary judgment on a case whose
parties also had litigation over a lease
dispute pending in an Ohio court. The
CA majority held that the trial court should
have considered the doctrine of forum
non conveniens before ruling on the matter.
The CA held that Kentucky had no interest in
the action and bore no significant
relationship to the parties, the transaction
or the res in question. It vacated the
summary judgment and remanded for an order
dismissing. Judge Miller dissented, stating
that forum non conveniens was inapplicable
to this case and that simply because the
Ohio court was working on this case did not
mean the Kentucky court automatically
had to dismiss its case. He also
addressed the merits of the Kentucky court's
decision and found the court had both
jurisdiction and sufficient cause to order a
summary judgment.
|
2003-CA-001896
NOT PUBLISHED 69
Date: 10/14/2005
|
DELONG
V. COM.
CRIMINAL - Search and Seizure (Sweep and
Exigent Circumstances)
|
2004-CA-001461
NOT PUBLISHED 49
Date: 10/14/2005
|
ROLAND
V. COM.
CRIMINAL - Counsel (ineffective assistance)
|
2004-CA-001462
NOT PUBLISHED 36
Date: 10/14/2005
|
NEAL
V. COM.
CRIMINAL - 11.42 Denied |
2004-CA-001764
NOT PUBLISHED 51
Date: 10/14/2005
|
COM. V. ARMSTRONG, HON.
CRIMINAL - DUI; Independent Test
CA affirmed Circuit Court's denial of
the Commonwealth's Petition for Writ of
Prohibition against District Judge Don
Armstrong following his ruling to suppress
the Defendant's breathalyzer test.
Based upon the factors presented in Commonwealth
v. Long, 118 S.W.3d 178 (Ky.App.
2003), Judge Armstrong did not abuse his
discretion by concluding that the
police officer had failed to reasonably
accommodate the defendant’s request for
an independent blood test. Factors
to be considered in determining the
reasonableness of the police assistance
include, but are not limited to, the
following: (1) availability
of or access to funds or resources to pay
for the requested test; (2) a protracted
delay in the giving of the test if the
officer complies with the accused's
requests; (3) availability of police time
and other resources; (4) location of
requested facilities, e.g., the
hospital to which the accused wants to be
taken is nearby but in a different
jurisdiction; (5) opportunity and ability
of accused to make arrangements personally
for the testing.
Note: Although not
a published decision, this case should
provide some guidance for similar factual
scenarios that have become increasingly
common in Jefferson County. Frank
Jewell on brief for the Defendant.
|
2004-CA-002223
NOT PUBLISHED 25
Date: 10/14/2005
|
REYNOLDS
V. COM.
CRIMINAL - 60.02 Not Additional Opportunity
for 11.42 |
2004-CA-002228
NOT PUBLISHED 42
Date: 10/14/2005
|
COLE
V. COM.
CRIMINAL - Prisons (Conditional Discharges)
|
2004-CA-002329
NOT PUBLISHED 33
Date: 10/14/2005
|
STONE
V. COM.
CRIMINAL - 11.42 denied
|
2004-CA-000813
NOT PUBLISHED 44
Date: 10/14/2005
|
TOFTNESS
V. KENTUCKY RETIREMENT SYSTEMS
EMPLOYMENT - State Disability Retirement
|
2003-CA-000789
NOT PUBLISHED 31
Date: 10/14/2005
|
COUCH
V. COUCH
FAMILY LAW - Custody (Change of)
|
2004-CA-001309
NOT PUBLISHED 119
Date: 10/14/2005
|
S.R.D.
V. T.L.B. (FORMERLY T.L.D.)
FAMILY LAW - Paternity (Estoppel to deny)
|
2004-CA-002395
NOT PUBLISHED 33
Date: 10/14/2005
|
SHAIN
V. BURNETT
FAMILY LAW - Custody (temporary); Best
Interests of Child
|
2004-CA-001409
NOT PUBLISHED 33
Date: 10/14/2005
|
CHILDRESS
V. TAYLOR DEVELOPMENT, INC.
PROPERTY - Restrictive covenants
|
2004-CA-000861
NOT PUBLISHED 28
Date: 10/14/2005
|
TURNER
V. DEPT. OF CORRECTIONS
TORTS - Defense (Sovereign Immunity)
CA
affirms TC dismissal of inmates' claims for
assault & battery for seizure of blood
samples for failure to state a claim on
which relief could be granted.
Authorizing
statute was in effect for both inmates and
officials were protected by sovereign
immunity. Also, inmates failed to notify the
Attorney General of challenge to statute's
constitutionality.
|
2005-CA-000380
NOT PUBLISHED 32
Date: 10/14/2005
|
CARITAS
MEDICAL CENTER V. STOUT
WORKERS COMP - Multipliers
Because of her injury, the claimant was unable to return to the job she was doing at the time of the injury, but the employer gave her a sedentary job paying the same wages. The ALJ determined, pursuant to Fawbush v. Gwinn, that the claimant would not be able to continue to earn the same wage into the indefinite future, and awarded benefits using the triple multiplier. The employer appealed this decision, and it was affirmed by the Board and by the Court of Appeals. The Fawbush v. Gwinn decision has created a whole new line of decisions like this, because it calls for a finding by the ALJ that is highly speculative - whether the claimant can continue to earn the same wage into the indefinite future despite the injury.
|
