Vol. 2006:21 COURT OF APPEALS DECISIONS FOR April 28, 2006

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PUBLISHED (COA) 

The defendant appealed his conviction on one count of theft by deception over $300.00 and one count of criminal possession of a forged instrument. He was then sentenced to two years in prison. 

The COA concluded the trial court erred in failing to instruct the jury on lesser included offenses, reversing and remanding for new trial.

The statute of limitations for misdemeanors simply does not apply when a criminal defendant who is being tried for a felony offense requests a lesser included misdemeanor instruction. If the evidence supports such an instruction, the trial court must give it. 

Digested by Michael Stevens.

Digested by Stephen Keller.

NOT PUBLISHED (COA) .

COA was not persuaded by the claim that Samuel improperly engaged in dual representation of Marshall and her daughter. Although Samuel has represented both women at various times, Marshall has provided nothing to contradict his showing that the various proceedings were unrelated to one another and not violative of his ethical and professional responsibilities.

The COA upheld a claim by the deceased child's estate against the Commonwealth for the failure to follow its own regulations and resultant death of the child in a state certified family child care home.

The estatclaim alleged that “[t]he Cabinet for Human Resources failed to comply with its own regulations and the statute by [failing to] investigat[e] the complaints against Mrs. Johnson. Had [the Cabinet] made their (sic) investigations, they (sic) would have discovered [Mrs. Johnson] was violating the law and closed her center. Sebastian would not have died.” 

COA relied upon Collins v. Commonwealth of Kentucky Natural Resources, 10 S.W.3d 122 (Ky. 1999), sets forth when an injured party can recover against the Commonwealth under the Board of Claims Act.  The Cabinet admitted its acts were ministerial in nature and the hearing officer and circuit court found sufficient evidence was presented that the Cabinet negligently performed those ministerial acts such that the doctrine of sovereign immunity is inapplicable in this case. The Kisers were entitled to recovery under KRS chapter 44.   COA affirmed the Circuit Court affirming the Board of Claims judgment.

GRW KENTUCKY, INC. V. DJSJ, INC. F/K/A WISE INDUSTRIES, INC.
CIVIL PROCEDURE  - Claims preclusion or res judicata  
2005-CA-000047
NOT PUBLISHED
AFFIRMING; KNOPF, J.
DATE: 4/28/2006 

Everyone not taking Civ Pro I should know by now that res judicata precludes further litigation of issues decided on the merits in a prior final judgment.  'Nuf said.

KESA was the real party in interest and should have moved to intervene under CR 17.01 as KESA, the insurer of Combs Petroleum, instead of Combs Petroleum, as insured by KESA.   A motion to intervene (as authorized by KRS 342.700 and CR 24.01(2)) has to be by the real party in interest under CR 17.01, which would be the workers’ compensation carrier.  However, we also believe that under the facts of this case, there was substantial compliance, and the trial court did not err in concluding that KESA was intervening as the insurer of Combs Petroleum.

By seeking and obtaining prospective enforcement of the covenant (from February 8, 2002 to February 8, 2004), ARH waived its right to retrospective enforcement of the covenant as set forth in the contract. Since there is no allegation that Dr. Ahmad breached the restrictive covenant during the two-year period set by the trial court, ARH is not entitled to liquidated damages under the contract.

14 years was a tad long for filing a CR 60.02 motion.

In Illinois v. Gates, 462 U.S. 213 (1983), the United States Supreme Court abandoned the rigid two-pronged test established by its previous holdings in Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969), and adopted a "totality of the circumstances" approach for determining whether an informant’s tip provided probable cause for the issuance of a search warrant.  Under this test, the issuing magistrate need only “make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id. at 238, 103 S.Ct. at 2332. 

The record and the law compelled the COA to conclude that the affidavit gave rise to a “fair probability” that evidence of methamphetamine possession or sales would be found at the Bunch residence.  Applying Lovett to the facts at bar supports a finding of probable cause and the issuance of the search warrant, and the circuit court erred in failing to so rule.

Drawing all inferences in favor of the Commonwealth, the evidence presented to the jury appears to have been more than sufficient to induce reasonable jurors to believe beyond a reasonable doubt that Nevitt was guilty of the charged crimes.  It was not unreasonable for the jury to find him guilty, and he was not entitled to a directed verdict of acquittal. 

Photo identification was reliable under the totality of the circumstances.

Held circuit court abused discretion in not awarding plaintiff prejudgment interest under the particular facts of this case since fairness dictated an award of prejudgment interest.  The appellant was deprived by the appellee of of the money it was owed for over two years and offered no viable defense for non-payment.

COA affirmed judgment of $129,160 in damages against the City for its breach of the implied duty of good faith and fair dealing in relation to a written agreement extending claimant employee's probationary period.

W.H. V. COM.
FAMILY LAW - Juvenile Status Offense and Contempt
2005-CA-000673
NOT PUBLISHED
AFFIRMING; SCHRODER, J.
DATE: 4/28/2006

None of the errors were preserved for review and none rise to palpable error.

The family court’s determination of neglect was proper and not prejudiced by any ex parte communication, but that the family court abused its discretion in suspending S.T.’s supervised visitation with M.E.T.,

Reversed summary judgment because there were genuine issues of material fact.

A bank is not liable for garnishing funds that were exempt from attachment where the bank was acting subject to a facially valid court order and where the bank gave the owner of the funds sufficient notice of the pending garnishment to take steps to protect his own interests.

Joint accounts are not immune from garnishment by the creditor of one of the joint accountholders. There is a presumption that for purposes of attachment and execution, a party to a joint account owns the entire joint account. But, upon notice and objection, he debtor or any third-party account tenant may rebut that presumption by proof of separate net contributions to the account.

Affirmed SJ.  The court specifically found that the flaw in the power of attorney was demonstrated by the delay in recording the deeds. This delay implicates appellants in the knowledge of the defects in the transactions, and so they cannot take advantage of the protection afforded good faith purchasers without knowledge.  No error in the grant of summary judgment.

This appeal involved a warning order attorney appointment in a foreclosure action.   In the case at hand, it was within the inherent power of the court to appoint a warning order attorney to notify McCarty of the action. In the affidavit, the affiant stated the name and address for McCarty’s unknown spouse was “unknown.” We believe this statement constitutes adequate compliance with the requirement that the affiant state his ignorance of the defendant’s address.  As such, the warning order affidavit for the unknown spouse complied with the requirements of CR 4.06. 

MCINTRYRE V. PERKINS JOBS CORP.
WORKERS COMPENSATION - Substantial evidence case
2005-CA-001661
NOT PUBLISHED
AFFIRMING; MCANULTY, J. 
DATE: 4/28/2006

STEVENS V. VISION MINING CO.
WORKERS COMPENSATION 
2005-CA-002024
NOT PUBLISHED
AFFIRMING; MCANULTY, J.
DATE: 4/28/2006

ALJ’s or Board’s conclusions were not a result of a lack of awareness or understanding of any portion of the evidence.  COA found no error in the assessment of the evidence in this case leading to flagrant error. 

No substantial evidence to support ALJ

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