Vol. 2006:11

COURT OF APPEALS DECISIONS FOR March 3, 2006

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PUBLISHED .

LOUISVILLE/JEFFERSON COUNTY METRO GOV'T  V. RICAHRDSON
EMPLOYMENT - Metro Government's duty to provide a legal defense to police officer
2004-CA-002440
PUBLISHED 
REVERSING (COMBS)
DATE:  3/3/2006

Metro Government is not required by the terms of the statute to provide (police officer charged with falsifying arrest charges against hundreds of defendants) with a defense in the cases filed against her because she was not employed in the public sector at the time the actions were filed

After an order dismissing the Martins’ complaint due to the running of the statute of limitations was reversed on appeal, the Martins filed an amended complaint requesting money damages to compensate them for the delay caused by the Commonwealth’s failure to notify them of their right to repurchase the property.  The Commonwealth moved to dismiss the complaint.  While this motion was pending, the Martins moved to file a second amended complaint alleging that the Commonwealth’s failure to give them notice of the right to repurchase the property constituted a governmental taking.  Before this motion was decided, the parties agreed to a reconveyance of the property to the Martins.

The court the entered an order dismissing the Martins remaining money damages claim and denying their motion to file a second amended complaint, holding that KRS 416.670 does not provide the Martins a right to recover economic damages upon failure of the Commonwealth to notify them of their right to repurchase the property.  The Martins appealed.

The court of appeals affirmed, holding that the Commonwealth’s failure to notify the Martins of their rights was not a taking because the Martins retained no interest in the property after it was condemned by the Commonwealth, and thus there was no interest subject to taking. 

The Court affirmed a decision of the Board and ALJ finding that an automobile accident occurring while the employee was driving home in the company vehicle was covered.  The COA cited previous case law which held that when an employee provides service benefiting the employer while going home or coming to work, his trip is an exception to the “going and coming” rule which excludes the trip to work and the trip home from workers’ compensation coverage.   

NOT PUBLISHED .

ADAMS V. TURNER CONSTRUCTION CO.
APPEALS - Pro Se Appeal Summarily Affirmed
2004-CA-001103
NOT PUBLISHED 
AFFIRMING (TAYLOR)
DATE:  3/3/2006

COA was unable to discern the law and issues from pro se appeal and summarily affirmed lower court dismissal for failure to prosecute.

MOORHEAD V. MANNING
ATTORNEYS FEES 
2005-CA-000700
NOT PUBLISHED 
AFFIRMING (SCHRODER)
DATE:  3/3/2006

The issue was “not whether this contractual provision should encompass the payment of attorney’s fees for services associated with an appeal. The issue . . . is whether Moorhead asserted this claim in timely fashion.”  Moorhead argued that she could not have sought an award for attorney fees for the appeal because she did not know if there would be an appeal, or the amount of the fee if appealed. Moorhead then suggested two ways to seek appellate fees: by going back to the trial court after the appeal is final; or by filing a separate action in circuit court on the contractual authority of the personal guaranty. 

The panel discussed why the trial court was without jurisdiction to amend or to supplement the final judgment and declined to discuss the separate action.

The trial court held that under Hays v. Sturgill, 302 Ky. 31, 193 S.W.2d 648 (1946), and Whittaker v. Cecil, 69 S.W.3d 69 (Ky. 2002), the doctrine of res judicata bars a subsequent action where in the exercise of reasonable diligence, an issue might have been brought forward in the earlier suit.

Held father was precluded from attacking 1990 AGREED paternity order on grounds of fraud and lack of notice, and thus giving it res judicata effect.

CARRENDER V. COM.
CRIMINAL  - RCr 11.42
2005-CA-001485
NOT PUBLISHED 
REVERSING AND REMANDING (KNOPF)
DATE:  3/3/2006

The record does not clearly refute Carrender’s claims of ineffective assistance of counsel in his pro se RCr 11.42 motion.  CA reversed TC order and remanded for appointment of counsel and an evidentiary hearing on the merits of the motion.  This case presents a fairly close call regarding the effectiveness of Carrender’s trial counsel in advising him to plead guilty to the charge of possession of methamphetamine precursors.

WORTHINGTON V. COM.
CRIMINAL - Ineffective Assistance of Counsel
2004-CA-002473
NOT PUBLISHED 
AFFIRMING (SCHRODER)
DATE:  3/3/2006

Trial courts may deny RCr 11.42 motions without holding evidentiary hearings when the record clearly refutes the movant's allegations.

CA reversed and remanded Spanos' conviction for Possession of a Handgun by a Convicted Felon and PFO 2.  The anonymous call to a 911 dispatcher, without more, was insufficient to create the reasonable suspicion necessary to do a Terry stop. 

CA affirmed TC's denial of Barksdale's RCr 11.42 Motion because it found no evidence to support the claim of ineffective assistance.

Sanders' discovery of a jailhouse informant who gave him an exculpatory affidavit 6 years after Sanders' trial was not sufficient to justify relief under CR 60.02.    

Pierce was not entitled to relief under CR 60.02 because he presented no basis upon which the trial court was required to impose a concurrent sentence. 

Evidence was sufficient to support Perry's conviction for Felony Theft by Failure to Make Required Disposition of Property. 

HIGHLANDER MORTGAGE CO. V. KIENTUCKY UNEMPLOYMENT INSURANCE
EMPLOYMENT - Unemployment Benefits
2005-CA-000359
NOT PUBLISHED 
AFFIRMING (JOHNSON)
DATE:  3/3/2006

Unemployment commission's findings of fact supported by substantial evidence.

Efforts increasing value of nonmarital property. Husband built a cabin on the parties’ marital real estate, during the marriage, with lumber purchased before marriage. A pond was added during the marriage as was electric service; wife’s efforts as the sole homemaker contributed to husband’s ability to spend time building the cabin. The entire cabin is marital.

Monies earned subsequent to the parties’ separation and prior to a decree allows division as a marital asset; husband could not prove that the funds were exhausted, either.

The trial judge did not err in concluding that the agreed order did not constitute a change in custody as contemplated in KRS 403.340, Douglas’s motion was filed outside the two-year limitation contained in the statute.

Father alledged the circuit court erred when it failed to record an in camera interview with a child witness; that it erred when it rendered a final custody decision based on a pendente lite hearing; that the circuit court’s award is not based on the best interests of the child; and that it erred when it relied on the opinion of an expert regarding Martha’s psychological condition.

Although COA recognized that when father filed his appeal he was not represented by counsel; it held that  absent an appellate record that affords this court full review, then the COA must presume that the DRC accurately recited the facts and that the missing evidence supports the order.

HIGHLANDER MORTGAGE CO. V. KIENTUCKY UNEMPLOYMENT INSURANCE
EMPLOYMENT - Unemployment Benefits
2005-CA-000359
NOT PUBLISHED 
AFFIRMING (JOHNSON)
DATE:  3/3/2006

Unemployment commission's findings of fact supported by substantial evidence.

BANK OF AMERICA V. BOONE NATIONAL BANK
REAL PROPERTY - Mortgage Lien and Failure to Release
2004-CA-002422
NOT PUBLISHED 
AFFIRMING (KNOPF)
DATE:  3/3/2006

IF YOU REPRESENT LENDERS, READ THIS!!!

KRS 382.365 requires satisfied loans be released within 30 days.  BOA failed to release mortgage for 144 days.  COA upholds TC in awarding borrowers $54,000 in penalties.  Court does discuss possibility that statute may be unconstitutional since the penalty is potentially unlimited.

MCCOY V. VANCE
REAL PROPERTY - Dedicated for public use (discussion of Hatfield and McCoy Feud)
2005-CA-000501
NOT PUBLISHED 

Dispute over use of an easement.  One of the litigants is a descendant of the Hatfields, of Hatfields vs. McCoys fame, so the court outlines that history of that feud.  Interesting, if nothing else.

GOODMAN V. SWORD
TORTS - Defense of 'Sudden Emergency'
2005-CA-000221
NOT PUBLISHED 
AFFIRMING (KNOPF)
DATE:  3/3/2006

CA affirms defense verdict in auto collision. 

Driving down steep, snowy hill, Appellee lost control of her car when she braked to pass pedestrians on the side of the road. Her car came to rest astride the roadway with its front end partially in a ditch. A passing neighbor said he'd just done the same thing and offered to help her extricate her car if she got a portable winch from a neighbor. Appellee walked to get the winch, returned, and she and her neighbor were just about to extricate the car when Appellant came along, did the same thing and broadsided the car, injuring herself. She argued Appellee had a duty to stay at the top of the hill to warn oncoming traffic. CA holds that it was for the jury to decide whether it was reasonable for Appellee to attempt to remove the car or stay and warn - she couldn't have done both.

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