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Commonwealth v. Gaither

Supreme Court of Kentucky

February 19, 2018


          RENDERED: FEBRUARY 15, 2018


          COUNSEL FOR APPELLANT: Matthew Johnson

          COUNSEL FOR APPELLEE: Daniel T. Taylor III Philip Clyde Kimball


          HUGHES, JUSTICE.


         The Kentucky State Police (KSP), a department within the Commonwealth's Justice and Public Safety Cabinet, seeks discretionary review of a Court of Appeals' decision upholding a motion by the Estate of LeBron Gaither for post-judgment interest on damages awarded by the Board of Claims. This is the third appeal in this matter, arising from the July 1996 murder of LeBron Gaither, and marks the parties' second visit to this Court. We granted the motion for discretionary review to consider KSP's contention that the Court of Appeals misconstrued Civil Rule (CR) 54.01 and the statutes (Kentucky Revised Statute (KRS) 360.040, KRS 44.130, and KRS 44.140) which govern post-judgment interest on Board of Claims' awards. Agreeing with the Court of Appeals that in the circumstances of this case the Estate is entitled to post-judgment interest from the date of the initial Franklin Circuit Court judgment, we affirm.


         We recounted in detail the series of events that culminated in Gaither's death in Gaither v. Justice & Pub. Safety Cabinet, 447 S.W.3d 628 (Ky. 2014). To recap briefly, while he was still just eighteen years old, Gaither worked as a confidential informant for KSP officers investigating illegal drug trafficking in Marion and Taylor Counties, Gaither's role was to make controlled buys from suspected drug dealers. After Gaither had made several such buys, the detectives for whom he was working had him testify before grand juries in the two counties.. Notwithstanding that obvious compromise of Gaither's confidentiality, soon after the grand jury appearances, the detectives had him attempt to initiate a "buy/bust" involving one of the dealers against whom Gaither had testified. Unbeknownst to the detectives, that dealer had been tipped off about Gaither's testimony by a member of the Taylor County Grand Jury. Despite the detectives' precautions, during the "buy/bust, " the dealer managed to separate Gaither from the police detectives, drove him to an adjoining county, and brutually murdered him.

         In February 1998, Gaither's Estate, which is administered by Gaither's grandmother, Virginia Gaither, filed a wrongful-death action against KSP in the Board of Claims. See KRS 44.073. The Estate alleged that Gaither's July 1996 death was the result of negligently performed ministerial acts by certain KSP officers within the course and scope of their employment. As noted above, that claim has had a lengthy procedural history.

         The Board of Claims originally ruled, in accord with Gray v. Commonwealth, Transp. Cabinet, Dep't of Highways, 973 S.W.2d 61 (Ky. App. 1997), that the claim was untimely because it was not filed within one year of Gaither's death. The Estate appealed, and eventually, in Gaither v. Bd. of Claims, 161 S.W.3d 345 (Ky. App. 2004), the Court of Appeals considered an intervening decision by this Court; overruled Gray in light of that decision; and deemed the Estate's claim timely, because it was filed within one year of the personal representative's appointment and within two years of the decedent's death. The Court of Appeals remanded the case to the Board for further proceedings.

         On remand, the Board's new proceedings culminated in a December 2009 Final Order upholding the Estate's negligence claim. In the Board's view, the detectives' responsibilities to a confidential informant, at least those responsibilities at issue in this case, were so well established as to constitute "a series of ministerial duties, " the breach of which, under the principles of comparative negligence, rendered KSP liable for thirty percent of Gaither's damages. Finding Gaither's damages to have been "funeral expenses in the amount of $5, 573.08 and the total destruction of the decedent's earning capacity . . . amounting] to $562, 433.00, " for a sum of $568, 006.08, the Board concluded that "the Respondent [KSP] is liable for $168, 729.90 in damages to the Claimant [the Estate]."[1]

         KSP appealed from that award to the Franklin Circuit Court, and on January 5, 2011, the circuit court entered its Opinion and Order reversing the decision of the Board. After reiterating that the Board of Claims Act waives the Commonwealth's sovereign immunity for the negligent performance by its employees of ministerial duties, KRS 44.073(2), but not for the negligent performance of discretionary duties, KRS 44.073(13)(a), the court held that "the acts performed by KSP in this case were discretionary, not ministerial, " with the result that "KSP is immune from suit under the Board of Claims Act." This second dismissal of the Estate's action rendered other issues moot, including (1) KSP's alternative contention that even if KSP was deemed liable, the Board's award should be reduced to reflect the parties' stipulations about damages and (2) the Estate's cross-appeal seeking an award of interests and costs.

         The Estate again appealed, and although the Court of Appeals affirmed the dismissal on immunity grounds, the Estate ultimately prevailed in this Court. In Gaither v. Justice & Pub. Safety Cabinet, supra, we explained that while much of the Gaither-related police work in this case should be deemed discretionary and so outside the purview of the Board of Claims Act, the use of Gaither in the "buy/bust" operation after his confidentiality had been utterly compromised was different. This Court held that the Board reasonably found the detectives' decision to send Gaither to yet another "buy" to be contrary to "a clear and certain imperative within the law enforcement professions, " 447 S.W.3d at 635, an imperative so clear and well established as to have become ministerial. We held "that the duty compelling the performance of a ministerial act need not spring from a specific statute, administrative regulation, or formal policy statement or protocol[, but] . . . may flow from common law duties or professional customs and practices." Id. Accordingly, we reversed the dismissal of the Estate's action and reinstated the Board's liability finding.

         We agreed with KSP, however, that the Board's award of damages exceeded the parties' stipulations and found "nothing in the record to support the additional amount." 447 S.W.3d at 640. Instead, noting "lost earnings, " as stipulated, of $490, 024.00, and proven funeral expenses of $5, 573.08, we added the two, applied the thirty percent of fault the Board apportioned to KSP to arrive at $148, 787.12 as KSP's share, and instructed the Board on remand to enter a Final Order reflecting an award in that amount.

         The Board complied with this mandate by Final Order entered in January 2015; and KSP then promptly paid the Estate $148, 787.12. Soon thereafter, the Estate moved the circuit court to "supplement" the award by granting post-judgment interest on the award amount from the date of the circuit court's initial, take-nothing judgment in favor of KSP, i.e., the January 5, 2011 "Opinion and Order, " in which the circuit court erroneously deemed KSP immune from the Estate's suit. According to the Estate's estimate, the interest from that date until the award was paid in February 2015 is about $85, 000.00.[2]

         Citing Thurman v. Commonwealth, Transp. Cabinet, Dep't of Highways, 981 S.W.2d 140 (Ky. App. 1998), the circuit court denied the Estate's motion for interest. The post-judgment interest statute (KRS 360.040), the court noted, does not apply to Board awards as such (Thurman), but only to the judgment entered after the award has been filed in or appealed to the circuit court pursuant to KRS 44.130 or KRS 44.140, respectively. In the Franklin Circuit Court's view, its January 5, 2011 order vacating the award could not be deemed to satisfy either of those statutes.

         For the third time, the Estate then appealed, and the Court of Appeals reversed. The appellate panel acknowledged, as originally entered, the January 2011 take-nothing judgment did not support an award of interest. Under pertinent caselaw, however-in particular, Elpers v. Johnson,386 S.W.2d 267 (Ky. 1965), and Commonwealth, Transp. Cabinet, Dep't of Highways v. Esenbock, 200 S.W.3d 489 (Ky. App. 2006)--that initial circuit court judgment, having been corrected and increased on appeal, should be understood as if it had-correctly-upheld the ...

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