Vol. 2006:10 - COURT OF APPEALS DECISIONS FOR FEB 24, 2006

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PUBLISHED .

TINSLEY V. COMMONWEALTH
CRIMINAL - Appointed counsel
2005-CA-000361
PUBLISHED   
REVERSING AND REMANDING (MILLER)
DATE: 2/24/2006

Because the trial court improperly denied appointment of counsel based upon the mere fact that a property bond had been posted to secure Tinsley’s release following his indictment; did not apply the factors to determine Tinsley's indigency as provided in KRS 31.120; and, because it is otherwise not determinable from the record whether Tinsley was in fact indigent, CA reversed and remanded Defendant's conviction for trafficking in cocaine.

CA offered the following observations: first, if a defendant raises the issue of indigency, a hearing must be held thereon for a determination in accordance with the requirements set forth in KRS Chapter 31, and the court must enter findings at the conclusion thereof. If the findings support indigency, counsel shall be appointed. Second, if the findings do not support indigency, and the defendant persists in not employing counsel, he shall be deemed to have waived counsel, whereupon he is entitled to the protections of Faretta. Should the trial court fail in the foregoing, the trial is defective.

COMMONWEALTH V. BALDWIN
CRIMINAL - Search and Seizure (confidential informant; drug sniffing dog and Daubert)
2004-CA-002528
PUBLISHED 
REVERSING AND REMANDING (VANMETER) 
DATE: 2/24/2006

CA reversed and remanded TC's order suppressing the search of storage units owned by Baldwin.  The Boone County Sheriff's Department received a tip from a confidential informant who said that a white male was cooking meth at the Mount Zion storage facility after dark.  Mere hours after receiving this tip, a sheriff visited the facility after dark and saw two white males come out of a unit and jump into a truck after realizing that someone was present.  The license plate from the truck was registered to Baldwin.  The confidential informant confirmed that Baldwin was the person who was cooking meth at Mount Zion.  Weeks later, the sheriff returned to Mount Zion and saw the same truck outside of the same unit at which he earlier saw the two white males.  Baldwin and others came out of the unit, and the sheriff approached.  Baldwin confirmed that he was the owner of the unit.  A drug-detection dog sensed that drugs were in that unit.  A search warrant was obtained and executed shortly thereafter.  Drugs and firearms were found and seized.  Baldwin moved to suppress the search and the TC agreed.  On appeal, the CA said that suppression was improper because a substantial basis existed for the search.  The trial judge's use of Daubert to assess the drug dog's reliability was inappropriate because Daubert is reserved for assessing the admissibility of scientific or technical evidence at trial.   

This opinion disposes of the combined appeals from Garcia and his co-defendant, Letkeman, regarding their convictions for Trafficking in Marijuana. A state trooper observed Garcia driving a van on I-64. Letkeman was in the front passenger seat. After the van quickly moved to the slow lane, the trooper pulled next to it. Garcia appeared to be nervous, had a "death grip" on the steering wheel, and avoided making eye contact with the trooper. There appeared to be cracks in the vehicle's windshield which the trooper thought would impair Garcia's vision. The trooper initiated a traffic stop and cited Garcia for violating KRS 189.110. Garcia then allowed the officer to search the van. Ten bricks of marijuana were found. Garcia and Letkeman entered conditional guilty pleas that reserved their rights to appeal the trial court's denial of their motions to suppress. CA held that having a cracked windshield did not violate KRS 189.110 but that it might violate KRS 189.020 (i.e. severe windshield cracks would obstruct a driver's vision and pose a risk of harm to other motorists). However, the record revealed that Garcia's van had only minor cracks. Also, Garcia's nervous behavior, in and of itself, was not sufficient to constitute "reasonable suspicion" to justify a Terry stop. Therefore, the TC erroneously denied Garcia's motion to suppress. Letkeman's motion to suppress, however, was properly denied as he lacked standing to challenge the propriety of the vehicle search. 

This was a wrongful death case arising from a plane crash.  The circuit court granted summary judgment dismissing the claim of the estate as to vicarious liability of employer of pilot and this appeal ensued.  If a negligent act of an employee occurs in the course and scope of the employer’s business, an employer can be held vicariously liable. In this case, the trial court granted summary judgment after very limited discovery had occurred.  After viewing the facts in this case in the light most favorable to the party opposing summary judgment, COA concluded there are genuine issues of material fact as to Mid-States’s knowledge of the pilot Edwards’s travel practices and Edwards’s authority in setting the travel policies. Thus, COA reversed the summary judgment and remanded this matter for trial

NOT PUBLISHED .

CARKIN V. BURTON
CIVIL PROCEDURE - Continuance
FAMILY LAW
2004-CA-001160
NOT PUBLISHED  
AFFIRMING (BARBER)
DATE: 2/24/2006

Dad appealed TC’s order of CS, claiming that the underlying hearing should not have been held, as he had requested a continuance and requesting reimbursement of child support arrearage payments included in a Wage Assignment Order. Mom argued that the child support order could not be appealed, as it was not labeled “final and appealable order.” CA held that “The finality of an order is determined by whether it grants or denies the ultimate relief sought in the action,” thus the inclusion of this particular phrase is otherwise unnecessary. CA nonetheless denied the relief sought by Dad. Although Dad filed a motion for a continuance of the hearing two days before, he did not provide the court with any reason for same. CA found TC did not abuse its discretion in denying Dad’s motion.

CA also affirmed TC’s child support order and its order regarding arrearages, finding that TC had authority to award increased child support retroactive to the date of the filing of Mom’s Petition.

COOMER V. COMMONWEALTH
CRIMINAL - Sufficiency of Evidence
2004-CA-002451
NOT PUBLISHED  
AFFIRMING (MCANULTY)
DATE: 2/24/2006

CA concluded that there was sufficient evidence for the jury to conclude beyond a reasonable doubt that Coomer, rather than anyone else in the vehicle, possessed the controlled substances, and so there was no palpable error under RCr 10.26.

WOLFE V. COM.
CRIMINAL - Dept. of Corrections Failure to file brief on appeal decried
2005-CA-000304
NOT PUBLISHED 
AFFIRMING (BARBER)  
DATE: 2/24/2006

BOSLER V. CROMWELL-BOSLER
FAMILY LAW - Child Support
2004-CA-000401
NOT PUBLISHED
AFFIRMING IN PART AND REVERSING IN PART AND REMANDING WITH DIRECTIONS ( TAYLOR)
DATE: 2/24/2006

TC increased Dad’s child support obligation because Daughter was required to transfer to a more expensive private school due to a learning disability and other disorders. Dad appealed, claiming, first, that TC had insufficient evidence to determine whether Daughter had “extraordinary educational needs.” CA held that this determination is within the broad discretion of the trial court and that TC made detailed findings based on a wide array of evidence in arriving at this determination, thus TC acted within its discretion in making the finding. 

Next, Dad argued that Mom was aware of Daughter’s situation when she entered marital settlement agreement and that there was therefore no underlying material change of circumstances. CA found that, although Mom was aware of Daughter’s difficulties, they did not rise to crisis level until after the Agreement had been entered, so a finding of material change of circumstances was not erroneous.

Lastly, Dad argued that TC should not have denied his motion for removal of the Guardian Ad Litem, as Daughter had therapist and psychiatrist as well as a parenting coordinator. CA found no basis for the continuing participation of the GAL: “KRS 387.305(5) governs the appointment of a guardian ad litem and provides, in relevant part, that “the duties of a guardian ad litem shall be to advocate for the client’s best interest in the proceeding through which the guardian ad litem was appointed.” We are not aware of any authority, nor have the parties cited this Court to any that would allow for the continued representation of the children by a guardian after entry of the decree of dissolution. Additionally, the family court made no findings sufficient to warrant the continued representation of the children by a guardian. As such, we conclude the court abused its discretion by denying [Dad’s] motion to remove the guardian.”

HEMPHILL V. BEST
FAMILY LAW - Domestic Violence Order - Sufficiency of Notice 
 2005-CA-001162
NOT PUBLISHED  
VACATING AND REMANDING (TACKETT)
DATE: 2/24/2006

Appellant showed up in court for a domestic violence hearing on a petition that he had filed against his girlfriend, not knowing that she had tried (3 times, unsuccessfully) to file her own petition against him. At the hearing, he asked for a copy of the petition and asked to reschedule so he could prepare and get his own attorney, since he disputed the facts in the petition against him. Trial Court was in error by denying him a continuance.

WATSON V. WATSON
Family Law - Post-Decree division of retirement benefits/enforcing separation agreement
2004-CA-001535
NOT PUBLISHED  
AFFIRMING (COMBS)
DATE: 2/24/2006

(This family has been before the Court of Appeals on other issues over the years.) The trial court correctly used its continuing jurisdiction to enforce the parties own property settlement agreement when it awarded former wife a lump-sum amount of money and a percentage of former husband’s on-going benefit which he is receiving from the Tennessee Valley Authority. The parties provided a formula for comparing the value of their respective pension and the contingent division; husband refused to honor the agreement and the court merely intervened to enforce, even though it was 8 years after the entry of the decree

COLLIVER V . STONEWALL EQUISTRIAN ESTATES
REAL PROPERTY - Subdivision Rules
2005-CA-000097
NOT PUBLISHED 
AFFIRMING (BARBER) 
DATE: 2/24/2006

The Collivers purchased property in Stonewall Equestrian Estates and wanted to build a detached garage. The Stonewall Equestrian Estates Association, Inc. (“Stonewall”) voted against the proposal on two occasions. The Collivers, however, began construction on the garage. Stonewall sought a permanent injunction in the circuit court. The Collivers continued construction on the garage. The circuit court granted summary judgment to Stonewall on the injunction action and ordered that the garage be removed from the property (the “September 2002 Order”). The Collivers appealed, and the court of appeals affirmed. Discretionary review was denied by the Kentucky Supreme Court.

Stonewall filed a motion in circuit court to enforce the judgment. The court ordered the removal of the portion of the garage that was above the concrete slab and foundation, leaving all related improvements, including the driveway, intact (the “October 2004 Order”). Stonewall moved to alter, amend or vacate. While that motion was pending, the Collivers removed the garage above the slab and foundation. The court granted Stonewall’s motion and entered an order vacating the earlier order and holding that the Collivers must remove the slab, the foundation, the retaining wall and the driveway to restore the property to its original condition (the “December 2004 Order”). 

The Collivers appealed, arguing that the September 2002 Order did not require them to remove the slab, foundation, retaining wall or driveway. The contended that the order required them to “remove the structure in its entirety,” which could only mean the portion of the garage above the slab and foundation. They also argued that the circuit court should not have looked to other documents in the record to determine the meaning of the term in the September 2002 Order. The Court of Appeals disagreed, holding that the language “remove the structure in its entirety” meant all related improvements to the garage. The court came to this determination by looking at the requests for relief by Stonewall in its original complaint and summary judgment motion. These documents all requested that the garage and all related improvements be removed. And, because the circuit court sustained the summary judgment motion without exception, this is the relief the order gave Stonewall.

BALL V. KELTNER
REAL PROPERTY - Restrictive Covenants
2003-CA-001816
NOT PUBLISHED 
AFFIRMING (SCHRODER) 
DATE: 2/24/2006

Dispute over location of “main road” to give alternative access to lots left to children by parents.

LUSE V. GAREY, DMD
WORKERS COMPENSATION - Remanded for full evaluation of claim of claim at to piriformis syndrome and SOL
2005-CA-001214
NOT PUBLISHED
AFFIRMING (SCHRODER)   
DATE: 2/24/2006

Thanks to Scott Byrd, Patrick Bouldin,  John Hamlet, Cherry Henault, Sam Hinkle,  Chad Kessinger,  Stephen Keller,  Michelle Eisenmenger Mapes , Peter Naake,  Paul C. O'Bryan, Bryan Pierce, Alma Puissegur, Paul Schurman, Michael Stevens and James Worthington for their efforts in digesting Kentucky's PUBLISHED  appellate decisions.