2012 COA: Jan. 6, 2012 COA Minutes — Nos. 1-25 (25 decisions; 3 published)

 Jan. 6, 2012 COA Minutes —  Nos. 1-25 (25 decisions; 3 published)

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PUBLISHED DECISIONS OF COA:

3.  CRIMINAL LAW
BOWLIN (JOSEPH)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AND ORDER DENYING MOTION TO DISMISS AND VACATING AND REMANDING
LAMBERT (PRESIDING JUDGE)
CAPERTON (CONCURS) AND KELLER (CONCURS IN RESULT ONLY)
2009-CA-001956-MR
TO BE PUBLISHED
GALLATIN

"LAMBERT, JUDGE: Joseph Bowlin appeals from the order of the Gallatin Circuit Court revoking his conditional discharge and imposing a five-year sentence for his conviction for flagrant nonsupport. Based upon the Supreme Court of Kentucky’s recent opinion of Commonwealth v. Marshall, 345 S.W.3d 822 (Ky. 2011),1 we must hold that the circuit court abused its discretion in revoking.  Bowlin’s conditional discharge because it failed to provide him with his due process rights. Therefore, we vacate the circuit court’s order."

13.  EMPLOYMENT LAW.  POLICE OFFICERS.
BEAVERS (BILLY)
VS.
CITY OF BEREA, KENTUCKY, ET AL.
OPINION AFFIRMING
WINE (PRESIDING JUDGE)
TAYLOR (CONCURS) AND CAPERTON (DISSENTS AND FILES SEPARATE OPINION)
2010-CA-001522-MR
TO BE PUBLISHED
MADISON

"WINE, JUDGE: Billy Beavers appeals an order of the Madison Circuit Court granting summary judgment against him on claims of wrongful discharge and due process violations following his termination as a police officer. He argues that his termination violated the due process and hearing protections afforded to police officers under Kentucky Revised Statutes (KRS) 15.520. We agree with the trial court that KRS 15.520 only applies when disciplinary action is taken against a police officer based upon a citizen complaint. Since Beavers’ termination resulted from an internal police investigation without a citizen complaint, the provisions of KRS 15.520 do not apply. Hence, we affirm."

15
SAYLOR (GREGORY)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
TAYLOR (CONCURS) AND THOMPSON (CONCURS)
2010-CA-001705-MR
TO BE PUBLISHED
KENTON

"LAMBERT, JUDGE: Gregory Saylor appeals from the Kenton Circuit Court’s denial of his motion seeking post-conviction relief. After careful review, we affirm the orders of the Kenton Circuit Court.

In his brief to this Court, Saylor argues that his trial counsel’s failure to object to the trial court’s failure to rule on the motion for directed verdict prevented him from getting a ruling on the Commonwealth’s “wanton murder” theory. Saylor argues that since his defense was self-protection, it was ineffective assistance of counsel for trial counsel not to pursue a ruling once the issue was raised by a directed verdict motion. It is not clear exactly what Saylor is arguing amounted to ineffective assistance of counsel, and he makes no mention of how the crime scene evidence was presented at trial. Thus, we are not sure exactly what error Saylor is alleging on appeal and his claim appears to be different than the claim presented to the trial court in his RCr 11.42 motion. It is well established that a defendant is not “permitted to feed one can of worms to the trial judge and another to the appellate court.” Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976) (citations omitted) (overruled on other grounds by Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 2010)). Thus, Saylor’s argument that he received ineffective assistance of counsel when his trial counsel failed to object regarding his motion for directed verdict is without merit."

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TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):

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2.  SOVEREIGN IMMUNITY.
MERCER COUNTY FISCAL COURT, ET AL.
VS.
DEAN (KAREN), ET AL.
OPINION REVERSING AND REMANDING
WINE (PRESIDING JUDGE)
ACREE (CONCURS) AND LAMBERT (CONCURS)
2009-CA-001933-MR
NOT TO BE PUBLISHED
MERCER

WINE, JUDGE: Mercer County Fiscal Court and Billy Humphrey, Road Supervisor of the Mercer County Road Department, appeal from the denial of their motion for summary judgment against the Appellees Karen Dean and Kenneth Dean and from the dismissal of their third-party complaint against the Appellee Michael Scull. On appeal, Mercer County and Billy Humphrey argue that they should have been granted summary judgment against the Deans on the basis of immunity and that their complaint against Scull should not have been dismissed because they are entitled to indemnity.

In the present case, Billy Humphrey enjoys official immunity. Indeed, when an officer or employee of a governmental agency is sued in his or her representative capacity, their “actions are afforded the same immunity, . . . to which the agency, itself, would be entitled[.]” Yanero, 65 S.W.3d at 522. Thus, as Mercer County is entitled to the protection of governmental immunity, so is Billy Humphrey in his official capacity as the county road supervisor. Because he was not sued individually, we need not even address the issue of whether the location and placement of a stop sign is a discretionary act. Id.
As both Mercer County and Billy Humphrey are cloaked with immunity, the circuit court is not the proper forum for the action.3    Rather, the proper forum for any claims the Deans may have against Mercer County and Billy 2 In contrast, an employee is not immune from suit for the negligent performance of a ministerial act. 3 Nevertheless, we do not find fault with the Deans’ choice of filing in the circuit court. As the Kentucky Supreme Court recently acknowledged in Nelson County Bd. of Educ., 337 S.W.3d at 622, “the soundest course [when in doubt] is to commence the action in circuit court[]” and let the courts decide whether jurisdiction lies with the courts or the Board of Claims.

Humphrey is the Board of Claims. Nelson County Bd. of Educ., 337 S.W.3d at 621. Thus, the Deans are not left without remedy. As was recently acknowledged in Nelson County Bd. of Educ., the savings statute will operate to allow the timely filing of their claims within the Board of Claims after the dismissal of the present action by the circuit court. Id. at 624; KRS 413.270.

Hence, we reverse and remand to the trial court with instructions for the court to dismiss the action with prejudice. As we are reversing for a dismissal of the action with prejudice, we need not address the issues raised on appeal by Mercer County regarding causation and the dismissal of the third-party complaint against Scull.

11.  TRIALS.  JURY QUESTIONS.
MCGILL (HELEN OGATA)
VS.
CLAY (ANTHONY), ET AL.
OPINION AFFIRMING
WINE (PRESIDING JUDGE)
TAYLOR (CONCURS) AND CAPERTON (CONCURS)
2010-CA-001280-MR
NOT TO BE PUBLISHED
CLARK

WINE, JUDGE: Helen Ogata McGill appeals from an order of the Clark Circuit Court which denied her motion for a new trial following an adverse jury verdict. McGill argues that the instructions should have explained that it had directed a verdict of liability against the Appellee, Anthony Clay. She further argues that the jury’s questions to the court clearly indicated that they were confused by the instruction and believed that liability was still at issue. As a result, McGill maintains that the trial court should have advised the jury about the directed verdict in response to their questions.

We agree with McGill that the trial court had the discretion to advise the jury about the directed verdict and to clarify the instructions when asked by the jury. Under the circumstances, it may have been a better practice had the trial court directly informed the jury that it had granted a directed verdict on liability for McGill. However, the court sufficiently informed the jury that the only issue before it was to determine McGill’s damages. Since there was substantial evidence to support the jury’s conclusion that McGill’s injuries were not caused by the automobile accident at issue, we conclude that the trial court did not clearly err or abuse its discretion by declining to elaborate further on the instructions. Hence, we affirm.

16.  TORTS.  DOG ATTACK. LANDLORD.
BRISCOE (CARL)
VS.
JOHNSON (HAYDON)
OPINION REVERSING AND REMANDING
WINE (PRESIDING JUDGE)
ACREE (CONCURS) AND CLAYTON (CONCURS)
2010-CA-001761-MR
NOT TO BE PUBLISHED
POWELL

WINE, JUDGE: Carl Briscoe, Jr., appeals from a summary judgment of the Powell Circuit Court dismissing his claims against Haydon Johnson arising from a dog attack. He argues that genuine issues of material fact remain. Upon review, we agree and reverse the judgment of the Powell Circuit Court.

We find McDonald to be directly on point with the present case. The trial court erred by finding that there was no duty without first determining whether Johnson was the landowner/landlord. The question of whether a duty arose, such as could create liability for Johnson, rests first upon whether Johnson was the landowner/landlord. A genuine issue of material fact remains as to this question. Thus, it was error for the trial court to grant summary judgment in favor of Johnson.

We note, as an aside, that we have not considered the deeds attached to Johnson’s brief in arriving at our decision today, as they are not contained in the record.1    Kentucky Rules of Civil Procedure (CR) 76.12(4)(c)(vii).

In conclusion, we reverse the summary judgment of the Powell Circuit Court and remand for further proceedings consistent with this opinion, including a determination of whether Johnson was the landowner and/or landlord of the property in question. We make no determination regarding whether a duty actually existed or was breached in this case, however.

 

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