COA 2010 Minutes: January 8, 2010 (Nos. 1-18)

COA 2010 Minutes: January 8, 2010 (Nos. 1-18)

• 18 decisions
• 4 published

Published Decisions with digest and link to full text decision at AOC:

1
TORTS – BANKING – FIDUCIARY DUTIES
CAUDILL VS. SALYERSVILLE NATIONAL BANK
OPINION AFFIRMING
** ** ** ** ** BEFORE: CAPERTON, THOMPSON AND WINE, JUDGES.
THOMPSON, JUDGE: Bobbie Caudill, Administratrix of Arnett Gertrude’s estate, filed this action against Salyersville National Bank, alleging that the Bank aided and assisted Jack Scriber, acting under the authority of a power of attorney and as an authorized signatory on Gertrude’s personal checking account, to convert $414,000 in funds held by the Bank. The Bank defended on the basis that Scriber was an authorized signatory on Gertrude’s account and that Scriber presented a valid and enforceable power of attorney which authorized him to cash the certificates of deposit. A jury trial was commenced and, after hearing the evidence presented on behalf of the estate, the trial court granted the Bank’s motion for a directed verdict holding that the signature card and the power of attorney precluded any action against the Bank. ***

The definition of bad faith as used in the context of banking transactions was articulated in Taylor v. Citizens Bank of Albany, 290 Ky. 149, 160 S.W.2d 639 (1942). Bad faith “does not necessarily involve furtive or evil motives, but has a commercial sense of disregard of and refusal to learn the facts when available; and that the circumstances and conditions may be so cogent and obvious that to remain passive amounts to bad faith.” Id. at 641. * * *

In summary, there was no evidence that the Bank acted in bad faith or with knowledge that Scriber breached his fiduciary duty when it conducted the financial transactions concerning Gertrude’s account. It acted pursuant to a valid power of attorney and Consumer Account Agreement. Although the estate is critical of Gertrude’s decision to authorize Scriber’s general authority to access her financial affairs, the Bank was not obligated to look beyond the language of the power of attorney to determine the extent of the power. Parton v. Robinson, 574 S.W.2d 679 (Ky.App. 1978). We reiterate the view expressed in Pulliam v. Pulliam, 738 S.W.2d 846, 848 (Ky.App. 1987), that a bank has no duty to meddle into the affairs of its account holders and echo the federal court’s observation in Long v. Watkins, 271 F.Supp. 630, 634-635 (D.C. Ky. 1967), as to the responsibility of a bank regarding the financial decision of its depositors, including the appointment of a fiduciary:
A depositor has a right to rely upon the bank for the security of deposits entrusted to it. * * *

The liability for the conversion of the funds, if any, rests with Scriber and Cisco, not the Bank.
affirmed.

2
CRIMINAL
STONE VS. COMMONWEALTH
APPEAL FROM CAMPBELL CIRCUIT COURT   HONORABLE FRED A. STINE, V, JUDGE
OPINION AFFIRMING
** ** ** ** ** BEFORE: STUMBO, THOMPSON, AND WINE, JUDGES.
WINE, JUDGE: Randy Stone (“Stone”) appeals his conviction and sentence in the Campbell Circuit Court for attempted unlawful transaction with a minor. On appeal, he raises several allegations of error: (1) that he was entitled to a directed verdict because the Commonwealth failed to prove an essential element of the charged offense; (2) that the trial court erred by failing to grant his motion for a mistrial after a sexually explicit photograph was shown to the jury during opening statements; (3) that the trial court erred by granting the Commonwealth’s motion in limine to preclude him from raising “impossibility” as a defense; (4) that the trial court erred by failing to instruct the jury on lesser-included offenses; (5) that the trial court erred by refusing to instruct the jury on entrapment as a defense; (6) that the trial court erred by failing to grant his motion for a mistrial based on allegedly improper comments about Jury Instruction Number Four; and (7) that the trial court erred by sustaining the Commonwealth’s objection during his closing argument to his characterization of Kentucky Revised Statute (“KRS”) 503.064. Upon review of the record and following oral arguments, we affirm.

4
CRIMINAL
PETERS VS. COMMONWEALTH
OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE:    COMBS, CHIEF JUDGE; TAYLOR, JUDGE; HENRY,1 SENIOR JUDGE.
COMBS, CHIEF JUDGE: This appeal concerns the propriety of a writ of prohibition issued by the Shelby Circuit Court against the Shelby District Court. After careful review and consideration, we reverse and remand for entry of an order setting aside the writ.

13
FAMILY LAW – DOMESTIC VIOLENCE
HUNTER VS. MENA
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
** ** ** ** ** BEFORE: ACREE, KELLER AND LAMBERT, JUDGES.
ACREE, JUDGE: Samuel Scott Hunter appeals a Domestic Violence Order (DVO) originally entered January 22, 2009,1 and amended February 19, by the Jefferson Family Court. The final version of the order prohibits Samuel from having any contact with his former girlfriend, Candice L. Mena, or his nephew, Christopher Hunter, a minor. It also restrains Samuel from committing further acts or threats of abuse, damaging or disposing of Candice’s property, possessing a firearm, or coming within 1000 feet of her. We affirm except to the extent the order prohibits Samuel from contact with Christopher.