July 20, 2012 COA Minutes — Nos. 595-623 (13 decisions; 4 Published)

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PUBLISHED DECISIONS OF COA:

607.  CRIMINAL PROCEDURE.  SEARCH AND SEIZURE.
ENGLES (CLARENCE HUNTER)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
COMBS (PRESIDING JUDGE)
THOMPSON (CONCURS) AND LAMBERT (CONCURS)
2011-CA-000483-MR
TO BE PUBLISHED
FAYETTE

COMBS, JUDGE: Clarence Engles entered a conditional plea of guilty in the Fayette Circuit Court after it denied his motion to suppress the evidence of a gun. He now appeals. After our review, we affirm.

610.  GOVERNMENT EMPLOYMENT.  HEARINGS.
CHERRY (OSCAR)
VS.
CITY OF BOWLING GREEN, KENTUCKY
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
CAPERTON (CONCURS) AND LAMBERT (CONCURS)
2011-CA-000591-MR
2011-CA-000641-MR
TO BE PUBLISHED
WARREN

NICKELL, JUDGE: Oscar Cherry, a voluntarily retired former Deputy Fire Chief for the Bowling Green Fire Department (“BGFD”), has appealed from the judgment of the Warren Circuit Court following a jury trial dismissing his claims against the City of Bowling Green, Kentucky, for damages resulting from work restrictions placed upon him by the Fire Chief. The City of Bowling Green has cross-appealed from the same judgment. Upon careful review of the record, the law, the briefs and having heard oral arguments, we affirm.

612.  CRIMINAL LAW.  PROBATION.
SOUTHWOOD (LESLIE)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
ACREE (CONCURS) AND DIXON (CONCURS)
2011-CA-001277-MR
TO BE PUBLISHED
BREATHITT

CLAYTON, JUDGE: This is an appeal of a decision of the Breathitt Circuit Court denying the Appellant, Leslie Southwood’s, motion to alter, amend, or vacate the order revoking probation. Southwood alleges that, though the court determined that the nature of the pending charges were such as to create a risk to the public and the community, the court failed to determine whether he could appropriately be managed in the community pursuant to Kentucky Revised Statutes (KRS) 439.3106.

616.  FAMILY LAW.  DE FACTO CUSTODIANS.
BALL (JESSICA)
VS.
TATUM (HENRIETTA), ET AL.
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
LAMBERT (CONCURS) AND TAYLOR (CONCURS)
2011-CA-001716-ME
TO BE PUBLISHED
DAVIESS

NICKELL, JUDGE: Jessica Ball appeals from an order entered by the Daviess Circuit Court designating her adoptive parents, Henrietta and Fred Tatum, de facto custodians of E.N.K.,1 her special needs2 daughter. The court awarded Ball and the Tatums joint custody of the four-year-old child, who neither walks nor talks, and named the Tatums primary residential custodians. Ball maintains the Tatums did not qualify as de facto custodians because they had not been the child’s exclusive caregivers and financial supporters for one year as required by KRS3 403.270. Having reviewed the record, the law and the briefs, we affirm.

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596.  WRONGFUL DEATH ACTION.  ISSUE PRECLUSION.
JONES (KENNETH H.)
VS.
WARREN (CHERA LYNN)
OPINION REVERSING AND REMANDING
TAYLOR (PRESIDING JUDGE)
LAMBERT (CONCURS) AND THOMPSON (CONCURS)
2010-CA-000218-MR
NOT TO BE PUBLISHED
CARLISLE

TAYLOR, JUDGE: Kenneth H. Jones brings this appeal from a December 17, 2009, judgment of the Carlisle Circuit Court finding Jones liable in a wrongful death action and awarding damages of $1,191,322. We reverse and remand.

Based upon the doctrine of issue preclusion, the circuit court rendered

partial summary judgment on the issue of liability in the underlying wrongful death action based upon Jones’s murder conviction in Action No. 08-CR-00009. However, the murder conviction has been reversed by the Supreme Court in Appeal No. 2009-SC-000221-MR. Because Jones’s murder conviction was reversed by the Supreme Court, the concomitant adjudication of Jones’s criminal liability arising from the murder conviction is, likewise, void. For this reason, the summary judgment must be reversed. See Rosenblum v. Commercial Bank of Middlesboro, 838 S.W.2d 423 (Ky. App. 1992)(holding that “once the judgment upon which a plea of res judicata is based is set aside, the issue [res judicata] is no longer a viable one”). Upon remand, the circuit court may proceed with the wrongful death action. The reversal of a criminal conviction does not per se preclude a wrongful death action since a criminal conviction requires proof beyond a reasonable doubt and a wrongful death action only requires a preponderance of evidence.

Accordingly, we reverse the June 18, 2009, partial summary judgment upon the issue of Jones’s liability and, thus, the December 17, 2009, judgment. Upon remand, the wrongful death action may proceed since it is not precluded by the Supreme Court’s reversal for a new trial of Jones’s murder conviction.

For the foregoing reasons, the judgment of the Carlisle Circuit Court is reversed and this cause is remanded for proceedings consistent with this opinion.

617.  FEDERAL/STATE.  IMMUNITY.
SIMPSON, (MELISSA GAIL)
VS.
THOMPSON (KEVIN), ET AL.
OPINION AFFIRMING
MOORE (PRESIDING JUDGE)
DIXON (CONCURS) AND THOMPSON (CONCURS)
2011-CA-001726-MR
2011-CA-001727-MR
NOT TO BE PUBLISHED
METCALFE

MOORE, JUDGE: Melissa Gail Simpson, as personal representative for the Estate of Charles Fancher (the “Estate”) appeals from the Metcalfe Circuit Court’s order of summary judgment dismissing the Estate’s negligence claims against the above- captioned appellees. Finding no error, we affirm.

As noted previously, the Estate’s suit began as a Kentucky negligence action, but evolved into a federal suit alleging both a Kentucky negligence claim and a 42 U.S.C. § 1983 based upon excessive force and deliberate indifference to medical needs. When the Federal Court dismissed the Estate’s action, it dismissed the § 1983 claims with prejudice on the basis of sovereign immunity (to the extent they were asserted against Metcalfe County and its sheriff’s office) and qualified immunity (to the extent they were asserted against Thompson, Shirley, Gordon, and Shive in their individual capacities).

When the Estate re-filed its Kentucky negligence action in Metcalfe Circuit Court, the appellees raised the same defenses of sovereign and qualified immunity, along with a defense of res judicata, and moved for summary judgment on those bases. Thereafter, the circuit court granted summary judgment in favor of the appellees, but its final order of summary judgment essentially stated nothing more than that (i.e., it specified no basis). This appeal followed.

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