Vol. 2006:26 - COURT OF APPEALS DECISIONS FOR May 26, 2006

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PUBLISHED (COA).

Target Oil and Gas Corporation and Target’s president, Michael Smith, (Target) appeal from an order of the Franklin Circuit Court requiring Target to comply with a subpoena duces tecum issued by the executive director of the Commonwealth’s Office of Financial Institutions.  Target maintains that the subpoena exceeds the director’s investigative authority and otherwise amounts to an unconstitutional invasion of its internal affairs.   An inquiry into potential securities fraud is within the director’s authority as is a subpoena to further that inquiry.  

Digested, M. Stevens

CA affirms TC order (Jefferson Cir. Ct., Hon. Ann O'Malley Shake, judge, presiding) affirming decision of the Board of Claims awarding damages to Sexton against Dept. of Highways.

A dead tree fell from a lot owned by the Dept. onto Sexton's garage, destroying the garage and an auto. The Board awarded him $1,000 for his homeowner's deductible and $7,000 for the car, finding that the Dept. breached a duty of ordinary care to Sexton by failing to discover and remove a dangerous or defective condition from its vacant lot. The TC affirmed. 

On appeal, the Dept. argues immunity, error and that the wrong legal standard was applied. The Dept. argues that without a defined duty, removing the tree is a discretionary, not ministerial, act for which the state enjoys immunity. CA holds that the case depends not upon whether the act was discretionary or ministerial, but whether the Dept. owed a duty and whether the duty was breached. Citing scant case law and the traditional rule that a possessor of land has no duty to remedy purely natural conditions on his land, even if they are dangerous to his neighbors, the CA notes that the reason for the rule has little viability in contemporary urban settings. 

"We believe that the time has come for us to recognize the common-sense duty of reasonable care that a landowner owes to his neighbor. ... Accordingly, we now take the step we foreshadowed 21 years ago in Schwalbach, and hold that a landowner in an urban or heavily populated area has a duty to others outside of his land to exercise reasonable care to prevent an unreasonable risk of harm arising from defective or unsound trees on the premises."

Digested, J. Hamlett

When trial court granted summary judgment that the CAs eventually reversed on direct appeal, that judgment is treated as though it never existed, and it cannot be cited as grounds for res judicata by an opposing party. CAs also addressed rules concerning splitting causes of action (plaintiffs are permitted to bring a subsequent action based on the same transaction or facts as a prior action as long as the second cause of action is separate and distinct).

Digested, C. Henault

This appeal involved Michael Carneal who was convicted in the Paducah high school shooting.  He moved for relief from his judgment on the ground that his schizophrenia rendered him incompetent to plead guilty. 

Under RCr 11.42 he seeks relief from his judgment on the ground that his guilty plea was invalid both because he was incompetent to enter it and because counsel was ineffective in recommending it. Under CR 60.02 (f) he seeks relief from his judgment on the ground that the belated discovery of his insanity constitutes an extraordinary justification for relief. 

Minority and mental incompetence, are common grounds for tolling limitations periods, and RCr 11.42 itself gives no indication that its limitations period is meant to be an exception.  Juvenile judgments are final for the purposes of appeal at the time the juvenile is initially sentenced and that RCr 11.42 indicates that the limitations period runs from the entry of the final judgment. A juvenile’s trial counsel, however, often, as in this case, remains counsel until final sentencing when the child turns eighteen. 

Because many, if not most, RCr 11.42 claims are predicated on trial counsel’s alleged ineffectiveness, it would be unfair to begin the limitations clock before the juvenile was legally competent to seek independent advice concerning trial counsel’s performance.

According to the trial court, the limitations period expired in December 2001, and Carneal’s June 2004 motion was clearly too late.  COA agreed with Carneal that the limitations period should be deemed tolled during both his minority and his mental incompetence. 

COA was convinced, therefore, that Carneal has presented sufficient facts to create a real and substantial doubt about his competence to plead guilty. 

This used to be enough to entitle a movant to relief, but our Supreme Court has recently held that before relief can be granted it must first be determined that a retrospective competency determination is not feasible.  Although retrospective competency hearings are not favored, our Supreme Court has noted, they are permissible in some circumstances, and it is the trial court that must determine in the first instance whether those circumstances obtain.

The test to be applied “is whether the quantity and quality of [presently] available evidence is adequate to arrive at a [retrospective] assessment that could be labeled as more than mere speculation.”

Accordingly, order is vacated and case remanded  to determine whether a retrospective competency hearing is permissible and, if so, to conduct such a hearing.

If a retrospective competency determination is not feasible, or if it is determined at the hearing that Carneal was not competent to enter his guilty plea, then he shall be permitted to withdraw the plea and, if competent to do so, either plead again, or proceed to trial. 

As a matter of first impression, CA considered whether a juvenile court retains jurisdiction to enforce restitution orders when the party has turned eighteen and is no longer a minor. The Commonwealth argued that the juvenile court’s inherent powers of contempt and the fifteen year statute of limitations on judgments both prevented the lapse of restitution orders when the juvenile became an adult. CA disagreed, holding that KRS 610.010(13) limits juvenile court jurisdiction to minors. 

“A court’s inherent contempt authority … does not confer jurisdiction. It merely arms the court to defend and carry out the jurisdiction it otherwise possesses. Where, as here, that jurisdiction does not extend to adults, neither does the court’s contempt authority.” Further, “nothing about the limitations statute prevents a juvenile court judgment from lapsing for lack of jurisdiction or implies that the General Assembly meant, although it failed to say, that restitution orders were to be excepted from the general rule that juvenile court dispositions lapse when the offender turns eighteen.”

CA acknowledged public policy arguments for extending the juvenile court’s jurisdiction to enforce the orders into adulthood, including the need to make victims whole and the likelihood that juveniles will “wait out” their judgments to escape responsibility for same as they become adults. “Although we acknowledge the force of these arguments, the fact remains that it is the General Assembly, not the courts, that determines public policy in this area, and the General Assembly has not fashioned a restitution exception to the general rule terminating juvenile court jurisdiction at eighteen.” 

Digested, M. Eisenmenger Mapes

COA reversed  circuit court order which declared Kentucky Revised Statutes (KRS) 138.450(12)(a) and (f) unconstitutional as violative of the equal protection clause of the Fourteenth Amendment of the United States Constitution and Section 2 of the Kentucky Constitution. 

In this case, the Beyers sought monetary damages and a declaration that KRS 138.450(12)(a) and (f) were unconstitutional as violative of the equal protection clause of the Fourteenth Amendment of the United States Constitution and Section 2 of the Kentucky Constitution.   COA observed that economic growth is a legitimate governmental interest. Hence, the difference in treatment between a “used motor vehicle” and a “new motor vehicle,” as found in KRS 138.450(12)(a) and (f), rationally furthers the goal of stimulating the used car industry. 

Digested, M. Stevens

Plaintiffs' child was delivered at the University of Kentucky Medical Center ("UKMC"). A stool sample from the child may have been sent to an outside lab for testing to determine whether the child was born with "drugs of abuse" in its system. Regardless of whether the sample ever sent, a positive test result was recorded for the child. Upon being informed of this, a UKMC social worker reported the test results to the Cabinet for Families and Children ("Cabinet") as required by KRS 620-030-050. This set in to motion a very unfortunate series events that led to the child being placed in foster care for a brief period of time and then returned to its parents, the plaintiffs, on the condition that the parents agree to strict drug testing. 

About a month later, the social worker approached Dr. Leahy-Auer and informed her that the nurse in charge of the plaintiffs' baby during the applicable time period did not recall that a stool sample was ever taken from the child. Further investigation into the records revealed that the sample may well have been taken from another child, who was born at about the same time and who also tested positive for the same "drugs of abuse." The Cabinet dropped its investigation of the plaintiffs about a month later. 

The plaintiffs sued the Dr. Leahy-Auer, UKMC, and the independent lab, which settled. The trial court dismissed the claim against UKCM under Withers v. University of Kentucky, 939 S.W. 2d 340 (Ky. 1997). The Court of Appeals affirmed on grounds that UKMC is entitled to governmental immunity under Yanero v. Davis, 65 S.W.3d 510 (Ky. 2001). This holding is a modification of Withers, which held that UKMC is entitled to sovereign immunity.

As for Dr. Leahy-Auer, the Court of Appeals held that she was immune under KRS 620.050 for any actions in reporting the positive drug test to the Cabinet. 

Digested, H. Lawson

Landowners sought rezoning of their properties in Bowling Green, Kentucky. In two different cases, the City-County Planning Commission of Warren County, Kentucky (“Commission”) referred the matter to its staff for review, which, in both cases, recommended that the map amendments be granted subject to certain binding elements. Public hearings were held, and the opponents of the rezoning were represented by counsel and given the opportunity to call witnesses. The Commission approved the rezonings, and the Board of the Commissioners of the City of Bowling Green (“Board”) also heard arguments and enacted the ordinances rezoning the properties.

Warren County Citizens for Managed Growth, Inc. (“WCCMG”) appealed both decisions, filing a separate declaratory count alleging that the Commission and the Board were predisposed in favor of the map amendment. The circuit court granted summary judgment for the Commission, Board and landowners (“landowner parties”) and dismissed WCCMG’s claim for declaratory relief, stating that legislative bias was outside the scope of review. WCCMG appealed, and the landowner parties cross-appealed the finding that WCCMG had standing to appeal a rezoning decision.

The court of appeals affirmed, holding that although WCCMG did not own any property in the city, if it was aggrieved by the rezoning, it had standing under KRS 100.347(3). Because the landowner parties failed to show that none of the members of WCCMG were aggrieved by the rezoning, the ruling that it had standing to appeal was upheld.

The court also affirmed the summary judgment in favor of the landowner parties. WCCMG argued that the Comprehensive Plan of the county did not meet the requirements of KRS Chapter 100 because it allowed for arbitrary rezoning decisions. WCCMG alleged that the Commission disregarded the current focal point designation in approving the map amendments. The court, however, stated that the focal point plan, when viewed in the context of the comprehensive plan, met the requirements of KRS Chapter 100. The court held that the decisions to grant the map amendments were not arbitrary given the factual findings.

The court also affirmed the decision of the trial court dismissing WCCMG’s declaratory judgment claim, stating that a claim of bias requires a determination of whether the proceedings comported with due process, which is within the scope of review of KRS 100.347. Thus, a separate declaratory action was not appropriate. Moreover, stated the court, the legislative body does not have to be entirely impartial in considering zoning matters. The court held that the proceedings before the Commission afforded due process to all parties.

Digested by Sam Hinkle

NOT PUBLISHED (COA) .

MILLER V. COM.
CRIMINAL:
2004-CA-001985
NOT TO BE PUBLISHED   
DATE:  5/26/2006

CHAMBERS V. COM.
CRIMINAL:  Reasonable suspicion to arrest after fleeing
2005-CA-000815
NOT TO BE PUBLISHED   
DATE:  5/26/2006

LANHAM V. COM.
CRIMINAL:  Reasonable basis for stop
2005-CA-001124
NOT TO BE PUBLISHED  
DATE:  5/26/2006

MCDANIEL V. COM.
CRIMINAL:  Search and seizure (exigent circumstances; time lapse)
2005-CA-001394
NOT TO BE PUBLISHED   
DATE:  5/26/2006

CABINET FOR FAMILY AND HEALTH SVCS.  V. A.A.W.K
FAMILY LAW:  No appeal from denial of termination of parental rights
2005-CA-002022
NOT TO BE PUBLISHED   
DATE:  5/26/2006

KRS 405.021 must be construed to impose a burden on the grandparent seeking visitation of overcoming that presumption by proving clearly and convincingly that visitation is in the child’s best interest.

FELDPAUSCH V. ADAMS
FAMILY LAW:  Reasonable Visitation and de facto custodian  
2004-CA-002136
NOT TO BE PUBLISHED  
DATE:  5/25/2006

MCCOY V. THOMPSON
REAL PROPERTY: Fence line and adverse possession
2005-CA-000270
NOT TO BE PUBLISHED   
DATE:  5/26/2006

SHOOPMAN V. ROSEDALE MANOR
WORKERS COMP:  Sufficiency of evidence
2006-CA-000111
NOT TO BE PUBLISHED   
DATE:  5/26/2006

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