GRUBBS (DAVID B.) VS. KENTUCKY JUSTICE & PUBLIC SAFETY CABINETAnnotate this Case
RENDERED: NOVEMBER 7, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
DAVID B. GRUBBS
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 07-CI-01944
KENTUCKY JUSTICE &
PUBLIC SAFETY CABINET
** ** ** ** **
BEFORE: KELLER AND WINE, JUDGES; LAMBERT,1 SENIOR JUDGE.
LAMBERT, SENIOR JUDGE: David B. Grubbs, proceeding pro se, appeals from
an order of the Franklin Circuit Court dismissing his declaratory judgment action
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
against the Kentucky Justice and Public Safety Cabinet.2 Upon review, we affirm
the decision of the Franklin Circuit Court.
Grubbs is an inmate at the Kentucky State Reformatory in LaGrange.
Upon a guilty plea, Grubbs was convicted in the Laurel Circuit Court on March 21,
2006, of fraudulent use of a credit card and of being a first-degree persistent felony
offender. He was sentenced to fifteen years’ imprisonment. Grubbs had been
previously incarcerated in federal prison on three other occasions. The Laurel
Circuit Court judgment reflects that Grubbs’ sentence was ordered to run
concurrently with his federal sentences.
On November 30, 2007, Grubbs filed a petition for declaration of
rights in the Franklin Circuit Court. He argued that the Kentucky Department of
Corrections was obligated to give him credit for the time he had spent in federal
custody prior to his conviction in the Laurel Circuit Court. He further claimed that
he had a total of ninety-three months of federal sentence credit that should have
been applied to his Kentucky sentence. He had only been credited for twenty-four
months. Accordingly, Grubbs asked the Franklin Circuit Court to issue an order
directing the Department of Corrections to apply the remaining sixty-nine months
of federal incarceration to his Kentucky sentence.
On January 7, 2008, the Department of Corrections moved to dismiss
Grubbs’ petition on grounds that the issues raised had been previously litigated in
Grubbs’ petition for relief was originally brought against the Kentucky Department of
Corrections and its Commissioner, John Rees. The Kentucky Justice and Public Safety Cabinet
has been substituted as Appellee on appeal without comment or objection by either party.
the Laurel Circuit Court and were therefore barred by the doctrine of res judicata.
The Department attached to its motion an order from the Laurel Circuit Court
entered on August 27, 2007, in which that court rejected Grubbs’ request that he be
given credit for time served in federal custody. The reason was that Grubbs had
failed to object to his jail credit calculation at sentencing. The Department also
attached an order entered on September 5, 2007, in which the court overruled
Grubbs’ motion to modify the original March 21, 2006 judgment. On January 18,
2008, the Franklin Circuit Court granted the Department’s motion to dismiss
On appeal, Grubbs contends that the circuit court erred in dismissing
his petition for declaration of rights. While the trial court did not include an
explanation of its reasons, as the Department of Corrections relied solely upon res
judicata grounds in its motion to dismiss, it is safe to conclude that this argument
served as the basis for the court’s ruling.
A motion to dismiss should be denied unless it appears that the party
against whom dismissal is sought is not entitled to relief under any set of facts that
could be proven in support of his claim. James v. Wilson, 95 S.W.3d 875, 883
(Ky. App. 2002). For purposes of a motion to dismiss, the facts as set forth in the
complaint are considered as true and only the right to relief is challenged. Huie v.
Jones, 362 S.W.2d 287, 288 (Ky. 1962). The question of whether dismissal is
proper is determined as a matter of law and is therefore reviewed de novo. James,
95 S.W.3d at 883-84.
Grubbs argues that res judicata should not have been a factor in
dismissing his case. He relies on Smith v. Yeager, 393 U.S. 122, 89 S.Ct. 277, 21
L.Ed.2d 246 (1968) and Yost v. Smith, 862 S.W.2d 852 (Ky. 1993), overruled by
Commonwealth v. Hale, 96 S.W.3d 24 (Ky. 2003) in support of this argument.
However, as Appellee correctly points out, those cases deal with habeas corpus
proceedings and the inapplicability of res judicata in successive habeas corpus
cases. See Smith, 393 U.S. at 124-25; Yost, 862 S.W.2d at 853. The case at hand
does not involve a habeas corpus petition. Therefore, those decisions are
Under the doctrine of res judicata, “a judgment on the merits in a
prior suit involving the same parties or their privies bars a subsequent suit based
upon the same cause of action.” City of Louisville v. Louisville Professional
Firefighters Ass’n, Local Union No. 345, IAFF, AFL-CIO, 813 S.W.2d 804, 806
(Ky. 1991); see also Napier v. Jones By and Through Reynolds, 925 S.W.2d 193,
195 (Ky. App. 1996). For res judicata to preclude a subsequent suit, three
requirements must be satisfied: “First, there must be identity of the parties.
Second, there must be identity of the two causes of action. Third, the action must
be decided on its merits.” Newman v. Newman, 451 S.W.2d 417, 419 (Ky. 1970).
Res judicata does not act as a bar if different issues are involved or if the questions
of law are different. Id.
From the record, it appears that the elements of res judicata have been
satisfied. Grubbs does not dispute that the same interested parties were involved in
both the Laurel and Franklin Circuit Court cases.3 Moreover, the issue raised by
Grubbs here, whether he was entitled to have federal time credits applied to his
Kentucky sentence, was raised and decided against him by the Laurel Circuit
Court. Indeed, Grubbs’ appellate brief suggests that he filed this action in the
Franklin Circuit Court to obtain review of the Laurel Circuit Court’s decision. We
also note that Grubbs’ brief repeatedly raises issues concerning the Laurel Circuit
Court ruling. It goes without saying that issues Grubbs had with the Laurel Circuit
Court’s decision should have been presented to that court or to the Court of
Appeals, not to another circuit court.
In short, the Franklin Circuit Court correctly dismissed Grubbs’
petition for declaration of rights because the claim was barred by the doctrine of
res judicata. The judgment is affirmed.
Ewald’s Ex’r v. Louisville, 192 Ky. 279, 232 S.W. 388, 391 (1921) supports the view that for
res judicata purposes, different agencies of the Commonwealth are one and the same.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
David B. Grubbs, pro se
Joshua Clay Billings
Justice and Public Safety Cabinet
Office of Legal Services