Vol. 2006:28 - COURT OF APPEALS DECISIONS FOR June 9, 2006

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• MINUTES from AOC for this week.

PUBLISHED (COA).

In this odometer fraud case, the CA held that the trial court erred in failing to award the successful plaintiff his filing fee costs, but not so in reducing an attorney fees award.  Though such are recoverable in odometer fraud cases, the plaintiff failed to name the attorney as a party to the appeal.  Attorneys are to be named as a party on appeal only if the attorney is awarded fees directly in his or her own favor.  The CA read the record and found the trial court's intent was to award the fees directly to the attorney, not to the plaintiff.  As the attorney was found to be an indispensable party not named in the notice of appeal, the defendant's motion to dismiss as to the attorney fees portion of the appeal was granted.

Digested, Cherry Henault

Appealing from a $98,000 judgment against it by the Whitley Circuit Court for violating KRS 382.365 in not releasing its lien after notice, the bank argued that (a) it did not actually receive notice (as is required under the statute), (b) that the statute is unconstitutional, and (3) that the appellees had a duty to mitigate their damages.

COA upholds trial courts decision with respect to the receipt issue.  In addition, it outlines the possibility in its dicta that statute may be unconstitutional.  However, it hangs its had on the bank’s mitigation argument.  Court finds that appellees had a contractual duty to act reasonably and in good faith.  It cites as an example that if the appellees were really being damaged by the bank’s failure to release its lien, they would have been more proactive.  Remanded as to a new trial on damages, with appellees receiving such amounts as accrued under the statute while they were acting in a reasonable manner and in good faith.

Digested by Bryan Pierce

The jury convicted Thomas Henry Whalen of first-degree robbery, and the court sentenced him to fifteen years’ imprisonment.

The instruction at issue is similar to those set forth in Cooper's model jury instruction book. However, Cooper's model instruction does not contain the “while asserting he was armed” clause. According to Whalen, that “while asserting” clause is in neither the statutes nor the case law; and it allowed the jury to convict him of first-degree robbery even though no deadly weapon or dangerous instrument was “involved” in the crime. A deadly weapon or dangerous instrument must be involved in the commission of the offense of first-degree robbery because “[t]hat which separates first and second-degree robbery is (physical injury or) the involvement of either a weapon which by its very nature is deadly or an instrument which can be so employed.”

A defendant’s mere assertion that he was armed was sufficient to support a first-degree robbery conviction.  Although there is no indication that Whalen actually possessed a firearm or any other object that one would normally deem a deadly weapon or dangerous instrument, he did possess a glove, which he pointed at Newman while threatening to shoot her in the head. Newman further testified that she was frightened and believed that the glove may have 
been a weapon. Thus, though it is contrary to the normal usage of the term, the glove may constitute a deadly weapon under the theory that “any object that is intended by its user to convince the victim that it is a pistol or other deadly weapon and does [so] convince him is one.”

NOT PUBLISHED (COA) .

CHARLES DISTRIBUTION, INC. V. HALLIBURTON
BUSINESS:  Contract to install windows was between homeowner and builder and not window manufacturer  
2005-CA-000457
NOT PUBLISHED   
DATE:  6/9/2006

UNIVERSAL MANAGEMENT INC. D/B/A HOME CLASSICS V. LOUISA JUNCTION, LTD
BUSINESS LAW:  Lease (breach); summary judgment 
2005-CA-001227
NOT PUBLISHED  
DATE:  6/9/2006

HARRIS V. COM.
CRIMINAL:  RCr 11.42 and CR 60.02 relief denied
2004-CA-001331
NOT PUBLISHED  
DATE:  6/9/2006

ROBINSON V. COM.
CRIMINAL:  
2005-CA-000327
NOT PUBLISHED   
DATE:  6/9/2006

YORK V. COM.
CRIMINAL:  
2005-CA-000729
NOT PUBLISHED   
DATE:  6/9/2006

KBR TECHNICAL SERVICES, INC. V. KY UNEMPLOYMENT INS. COMMISSION
EMPLOYMENT LAW:  Unemployment insurance benefits; Drug testing 
2005-CA-001625
NOT PUBLISHED   
DATE:  6/9/2006

COMBS V. WAGERS
FAMILY LAW:  Grandparents; de facto custodian 
2005-CA-001982
NOT PUBLISHED  
DATE:  6/9/2006

CHILDERS V. CHILDERS
FAMILY LAW:  Property division (apportioning non-marital and marital portions); attorneys fees
2004-CA-001410
NOT PUBLISHED  
DATE:  6/9/2006

BAILEY V. HOWARD
REAL PROPERTY:  Partition; trial court has not power to direct commissioners how to divide the land 
2005-CA-001350
NOT PUBLISHED   
DATE:  6/9/2006

The issue before the Court was whether a $45 payment for the exclusive use of a Community Center located in a city-owned park defeated the immunity provided by Kentucky's recreational-use statute: KRS 411.190. The Court held that the payment did not defeat the immunity because the $45 fee did not constitute a charge within the meaning of the statute. The Court reasoned that while the fee gave the plaintiff excluive use of the Community Center, the plaintiff was not charged to use the park. NOTE: The plaintiff was not injured in the Community Center, but rather in an area that was free and open to the public. The Court indicated that this distinction could be an independent ground for its decision.  [Digested by Hays Lawson]

DYAR V. OUTLOOK INN, INC.
TORTS:  Business owner's duty to prevent assault upon patron 
2005-CA-000003
NOT PUBLISHED  
DATE:  6/9/2006

TEN BROECK DUBON, INC.  V. ARTEMECIA BROOKS
TORTS:  Negligent retention and hiring and harm caused to patients 
2005-CA-000893
NOT PUBLISHED  
DATE:  6/9/2006

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