Jan. 20, 2012 COA Minutes —  Nos. 59-83 (25 decisions; 7 published)

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PUBLISHED DECISIONS OF COA:

61.  CRIMINAL LAW; SEARCH AND SEIZURE
ARTIS (ANTONIO)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
WINE (PRESIDING JUDGE)
MOORE (CONCURS) AND STUMBO (CONCURS)
2010-CA-000437-MR
TO BE PUBLISHED
CHRISTIAN

WINE, JUDGE: Antonio Artis appeals from his conditional plea of guilty in the Christian Circuit Court to possession of marijuana (while armed), possession of a handgun by a convicted felon, and operating a motor vehicle on a revoked or suspended license. On appeal, Artis challenges the denial of his motion to suppress under Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009), and argues that the trial court erroneously applied the “good faith” exception to the exclusionary rule. Upon review, we affirm the Christian Circuit Court.

62.  CRIMINAL LAW
JOHNSON (FLOYD GROVER)
VS.
COMMONWEALTH OF KENTUCKY
OPINION REVERSING AND REMANDING
CAPERTON (PRESIDING JUDGE)
TAYLOR (CONCURS) AND CLAYTON (CONCURS)
2010-CA-000607-MR
TO BE PUBLISHED
POWELL

CAPERTON, JUDGE: Floyd Grover Johnson appeals from the denial of his motion to dismiss the indictments for three counts of first-degree trafficking in a controlled substance, second or subsequent offense, and one count of delivery of drug paraphernalia, due to a lack of jurisdiction and the correspondingly entered conditional guilty plea. Johnson was sentenced to ten years of imprisonment.

After a thorough review of the parties’ arguments, the record, and the applicable law, we reverse and remand.

66.  UNJUST ENRICHMENT.  APPEALS (PRESERVING ERROR IN JURY INSTRUCTIONS)
KILLIAN (STEVEN)
VS.
TUNACAKES PROPERTIES, INC.,
ET AL.
OPINION REVERSING AND REMANDING
KELLER (PRESIDING JUDGE)
STUMBO (CONCURS) AND VANMETER (CONCURS)
2010-CA-001396-MR
TO BE PUBLISHED
SPENCER

KELLER, JUDGE: Steven Killian (Killian) appeals from a judgment of the Spencer Circuit Court based upon a jury verdict in favor of Tunacakes Properties, Inc. (Tunacakes). For the reasons set forth below, we reverse and remand.

After a five-day trial, the jury returned a verdict in favor of Tunacakes on all claims against SK Development, SJK Properties, and Killian. Specifically, SJK Properties was found liable to Tunacakes in the amount of $42,391.67 for breach of the Consulting Agreement, and SK Development and SJK Properties were found to be jointly liable to Tunacakes in the amount of $150,000 for breach of the Promissory Note. The jury also determined that SK Development, SJK Properties, and Killian were unjustly enriched and were jointly and severally liable for full restitution to Tunacakes.

The trial court subsequently entered a judgment consistent with the jury’s verdict. On June 28, 2010, Killian filed a motion to alter, amend, or vacate the judgment arguing that Killian could not be held personally liable for the judgments against SK Development and SJK Properties. The trial court denied that motion. This appeal followed.

For the foregoing reasons, we reverse the Judgment of the Spencer Circuit
Court and remand for a new trial. Prior to trial, the court must first determine whether the corporate veil should be pierced. Regardless, Tunacakes is not entitled to an unjust enrichment jury instruction.

 67.  CRIMINAL LAW
WEST (KEVIN)
VS.
COMMONWEALTH OF KENTUCKY
OPINION VACATING AND REMANDING
CLAYTON (PRESIDING JUDGE)
STUMBO (CONCURS) AND THOMPSON (CONCURS)
2010-CA-001477-MR
TO BE PUBLISHED
CAMPBELL

CLAYTON, JUDGE: Kevin West appeals from a Campbell Circuit Court judgment entered upon a conditional guilty plea convicting him of one count of first-degree possession of a controlled substance, first offense. Because we agree with West that his Fourth Amendment rights were violated when a police officer asked him to step from his car following a routine traffic stop, we vacate the judgment of conviction and remand for further proceedings consistent with this opinion.

70.  CIVIL PROCEDURE.  AFFIRMATIVE DEFENSES, RES JUDICATA.
PRICE (RACHEL)
VS.
YELLOW CAB CO. OF LOUISVILLE
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
CLAYTON (CONCURS) AND DIXON (CONCURS)
2010-CA-001894-MR
TO BE PUBLISHED
JEFFERSON

LAMBERT, JUDGE: Rachel Price has appealed from the opinion and order of the Jefferson Circuit Court granting summary judgment in favor of Yellow Cab Co. of Louisville and dismissing her complaint on the basis of res judicata. We have carefully considered the record as well as the parties’ arguments in their briefs, and we find no merit in Price’s appeal. Therefore, we affirm the circuit court’s opinion and order.

This case presents us with an unusual situation where the subject matter of the second suit was certainly raised in the prior suit, while the specific causes of actions alleged in the complaint were not actually pled. We must agree with Yellow Cab that because Price actually raised the issue of its alleged fraudulent misrepresentation regarding Garcia’s whereabouts in her prior suit and she was actually successful in obtaining a reversal of the dismissal of the suit based solely upon this argument, she is precluded from bringing claims on this subject matter in a subsequent case. There is nothing in the record, other than Price’s mere assertion in her response to the motion to dismiss and again in her brief, to support her statement that Yellow Cab requested that the misrepresentation issue be severed from the personal injury claim for trial. The record of the trial in the prior action was not certified as a part of the record on appeal, and we have no way to verify this self-serving statement. “It is the appellant's duty to present a complete record on appeal.” Steel Technologies, Inc. v. Congleton, 234 S.W.3d 920, 926 (Ky. 2007). Therefore, we hold that the circuit court did not commit any error as a matter of law in dismissing Price’s complaint.

72.  ADMINISRATIVE AND REGULATORY LAW.
COMMONWEALTH OF KENTUCKY, ET AL.
VS.
HANDI-VAN, INC., ET AL.
OPINION VACATING AND REMANDING
COMBS (PRESIDING JUDGE)
NICKELL (CONCURS) AND LAMBERT (CONCURS)
2010-CA-001925-MR
TO BE PUBLISHED
BOONE

COMBS, JUDGE:    The Commonwealth of Kentucky, Transportation Cabinet, Department of Vehicle Regulation; and Jerry Anglin, acting Commissioner, (collectively, “the Cabinet”) appeal from an order of the Boone Circuit Court dismissing the Cabinet’s petition for declaratory rights. After our review, we vacate and remand.

In order to promote fairness in administrative hearings, the General Assembly created a division of the OAG that is a special “pool of hearing officers for assignment to the individual agencies at their request, for the conduct of administrative hearings.” KRS 15.111; KRS 13B.010(8). See Underwood, supra, at 362. KRS 13B.030 provides the procedures for an agency to use in contracting for hearing officers from the OAG and other agencies. The Cabinet availed itself of this option in utilizing a hearing officer from the OAG. It properly complied with both law and procedure.
We conclude that the Boone Circuit Court erred in dismissing the Cabinet’s petition for declaration of rights. We vacate its order and remand for entry of a new order.

77.  BUSINESS LAW. REAL PARTY IN INTEREST. STANDING. APPEALS.
BRUNER (KENNETH A.)
VS.
DISCOVER BANK
C/O DFS SERVICES, LLC
OPINION VACATING AND REMANDING
MOORE (PRESIDING JUDGE)
NICKELL (CONCURS) AND THOMPSON (CONCURS)
2011-CA-000197-MR
TO BE PUBLISHED
JEFFERSON

MOORE, JUDGE: On May 4, 2009, DFS Services, LLC, filed this collection action in Jefferson Circuit Court against Kenneth A. Bruner, naming itself “Discover Bank” in its complaint and thereafter referring to itself as “Discover Bank c/o DFS Services, LLC” in all of its subsequent pleadings. In substance, DFS’s complaint alleged that Bruner owed Discover Bank a credit card debt of $9,464.82, had defaulted upon that debt, and that Discover Bank was due 19.8% interest on that debt from Bruner pursuant to the terms of a cardmember agreement between Discover Bank and Bruner.1    In part, Bruner responded by asserting that DFS had no standing to sue as a real party in interest, per Civil Rule (CR) 17.01.2 Bruner also requested, approximately 17 months subsequent to when DFS filed its complaint, that the court order this matter submitted to arbitration pursuant to the terms of the cardmember agreement.

After a period of motion practice, DFS moved for summary judgment. In its order granting DFS summary judgment, the circuit court noted that Bruner had raised the issue of DFS’s standing to sue as a real party in interest. Nonetheless, the circuit court held that the evidence of record conclusively established that “Discover Bank is the owner of the subject debt and the real party in interest,” and that “Mr. Bruner is liable to Discover Bank for the claimed debt.” In the same order, the circuit court also denied Bruner’s request to arbitrate. Thereafter, Bruner appealed. After careful review, we vacate and remand.

 

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60.  BULLYING CLAIM. IMMUNITY OF GOVERNMENT OFFICIALS.
FLORENCE (JOYCE)
VS.
L. (P.)
OPINION REVERSING AND REMANDING
STUMBO (PRESIDING JUDGE)
SHAKE (CONCURS) AND LAMBERT (DISSENTS)
2010-CA-000003-MR
2010-CA-000004-MR
NOT TO BE PUBLISHED
FAYETTE

STUMBO, JUDGE: Joyce Florence, Mike Ernst, and Michael Bayless (hereinafter collectively referred to as the appellants) appeal from an order denying summary judgment based on qualified official immunity. These appellants argue that they are entitled to immunity based on state and federal grounds. L.P. (hereinafter referred to as Mother),2 argues that the appellants are not entitled to immunity, or at a minimum, that there are still genuine issues of material fact that preclude the grant of summary judgment. We find that the trial court incorrectly denied summary judgment to the appellants and reverse and remand with instructions to grant summary judgment in favor of all three appellants.

76.  TORTS.   MALICIIOUS PROSECUTION.
WHITLOCK (ARTHUR)
VS.
HANEY (LARRY W.) SR.
OPINION REVERSING AND REMANDING
WINE (PRESIDING JUDGE)
ACREE (CONCURS) AND CLAYTON (CONCURS)
2011-CA-000062-MR
NOT TO BE PUBLISHED
CARTER

WINE, JUDGE: Arthur Whitlock appeals from an order of the Carter Circuit Court granting a directed verdict and dismissing his malicious prosecution claim against Larry Haney, Sr. Whitlock argues that there were issues of fact concerning whether Haney lacked probable cause to bring a criminal charge against him. We agree with Whitlock that Haney’s omission of material facts in his grand jury testimony may support a finding that he lacked probable cause to bring the criminal charge. Because this is an issue of fact, we conclude that the trial court erred by granting a directed verdict for Haney. Therefore, we reverse and remand for a new trial on this issue.