Kentucky Court Report - SCOKY & COAKY

STD OF REVIEW: Appellate review of inadequate or inconsistent damages

From CUMMINGS (CALVIN) VS. STEELE (BURNICE W.), ET AL., NPO, COA 3/11/2011

The decision of whether to grant a motion for a new trial based upon
inadequate or inconsistent damages “‘. . . . is a discretionary function assigned to the trial judge who has heard the witnesses first-hand and viewed their demeanor and who has observed the jury throughout the trial’.” Cooper v. Fultz, 812 S.W.2d 497, 501 (Ky. 1991) (quoting Davis v. Graviss, 672 S.W.2d 928, 932 (Ky.1984)), abrogation on other grounds recognized by Sand Hill Energy, Inc. v. Ford Motor Co., 83 S.W.3d 483 (Ky.2002). The trial court’s ruling will be upheld unless it is clearly erroneous. Id. A factual finding is not clearly erroneous if it is supported by substantial evidence. Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky.1998). Therefore, we must determine whether substantial evidence existed to support the trial court’s decision to deny Cummings’ motion for a new trial.

 jury’s decision to award damages for medical expenses and lost
wages but not to award damages for pain and suffering is not a legal inconsistency. Miller v. Swift, 42 S.W.3d 599, 601 (Ky. 2001). Kentucky law does not require a jury to award pain and suffering damages in every case in which it awards medical expenses. Id. Instead, the question of whether a jury’s award of damages is inadequate requires an examination of the underlying evidence. Id. at 602.

Evidence that contradicts the jury’s decision is not enough to show inadequacy. The jury is given the responsibility of evaluating the evidence and determining the credibility of witnesses. A jury is not bound to believe any particular witness. Spaulding v. Sprinkle, 774 S.W.2d 465, 467 (Ky. Ct. App. 1989).

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While juries are not required to award pain and suffering damages each time a plaintiff is compensated for medical expenses, “. . . . where a substantial personal injury is sustained, suffering is presumed.” Schriewer v. Schworer, 296 Ky. 749, 178 S.W.2d 598, 599 (1944). Based upon the uncontroverted evidence of Cummings significant injuries and the inadequacy of the award, we conclude that the trial court’s Order was clearly erroneous.

Trial: Supplementing Damage Interrogatory Answers AFTER close of evidence and before submitting to jury permitted

The following is an important decision by the COA which held in this published decision that the CR 26 answers to damage interrogatories can be supplemented at the close of evidence and before the case is submitted to the jury.

Engle v. Baptish Healthcare System, Published, 2/25/2011

Although Baptist received a defense verdict, it filed a cross-appeal regarding the trial court’s instructing the jury on punitive damages. Engle’s complaint, filed November 24, 2004, requested an unspecified amount of punitive damages. Baptist requested answers to interrogatories, and one of Baptist’s interrogatories asked Engle to categorize and specify the amount of his damages. In his answer to Baptist’s interrogatory, Engle made no reference to punitive damages.

The trial in this matter concluded on October 9, 2009. After the close of evidence at trial, but before the matter was submitted to the jury, Engle moved to supplement his answers to Baptist’s interrogatories because he wished to specify a sum of punitive damages for the jury to consider. Baptist objected, contending that Kentucky Rule(s) of Civil Procedure (CR) 8.01(2) precluded Engle from supplementing his interrogatories at that time. In support, Baptist cited Fratzke v. Murphy, 12 S.W.3d 269 (Ky. 1999), which “recognized that a trial court can authorize answers or supplemental answers to interrogatories for good cause, as late as during the trial itself.”4 [fn 4 In Tennill v. Talai, 277 S.W.3d 248, 251 (Ky. 2009), the Supreme Court of Kentucky interpreted Fratzke in this manner.]   Baptist urged that Engle’s motion was untimely because both sides had already finished presenting their cases. Nevertheless, the trial court granted Engle’s motion to supplement his answers to Baptist’s interrogatories, and the question of punitive damages was submitted to the jury.

In its cross-appeal, Baptist repeats its argument that Engle’s motion was improper solely because it occurred after both sides had presented their respective cases. Baptist urges that, should we remand this matter, Engle should be precluded from seeking punitive damages upon retrial.

However, Baptist presents no authority supporting that a motion to supplement answers to interrogatories is improper within the meaning of Fratzke if it is made after the close of evidence but prior to submitting a matter to the jury. Moreover, Fratzke merely holds that a motion to supplement answers to interrogatories may be granted as late as during trial. We have determined that a new trial is warranted in this matter, the new trial in this matter has yet to occur, and Baptist presents no authority that would prohibit Engle from moving to supplement his answers during the course of retrial. Therefore, we find no error in the trial court’s decision to grant Engle leave to amend his answers to Baptist’s interrogatories.

 

 

CRIMINAL - Jurors (challenges, rehabilitating): Richard Gabbard v. Commonwealth of Kentucky (SC 10/29/2009)

Richard Gabbard v. Commonwealth of Kentucky
2008-SC-000062-MR October 29, 2009
Opinion by Justice Noble. All sitting; all concur.

Gabbard argued hismurder conviction must be reversed under Shane since he was forced touse two peremptory strikes to remove two jurors who should have beenstruck for cause. The Supreme Court held that the trial court should havestruck one of the jurors for cause after admitting she had already formedan opinion that Gabbard was guilty. The Court admitted the issue was a“tough call,” but held that the trial court relied too much on the juror’sstatements that she could set aside her personal views and base herdecision solely on the evidence. The Court noted that under Montgomery,pervasive bias or prejudice cannot be rehabilitated by using “magicquestions.” On the strike sheet, Gabbard’s defense counsel identified thejurors he would have struck if he had not been required to use hisperemptory challenges on the jurors that he believed should have beenstruck for cause. One of the jurors identified in this manner actually sat onthe jury-- thus the exception to Shane did not apply and the conviction wasreversed. Further, the Court formally adopted this practice as arequirement, holding that henceforth “in order to complain on appeal thathe was denied a peremptory challenge by a trial judge’s erroneous failureto grant a for-cause strike, the defendant must identify on his strike sheetany additional jurors he would have struck.”

CIVIL PROCEDURE - Sanctions (excluding witnesses) for missing court ordered deadline: LeBlanc v. Dorten (COA 9/18/2009)

LeBlanc v. Dorten
2008-CA-001574 9/18/09 2009 WL 2971760 DR pending
Opinion by Judge Lambert; Judge Acree and Senior Judge Harris concurred.

The Court affirmed a jury verdict in appellee’s favor on appellant’s claims related to a motor vehicle accident. The Court first held that the trial court did not abuse its discretion in excluding witnesses and evidence submitted after a court-ordered deadline. The court’s decision was directly related to appellant’s failure to comply with the discovery deadlines and thus, the sanction clearly bore a direct relationship to the defect and was not unreasonable or capricious. Further, CR 37.02(2)(b) supported the court’s sanction. The Court distinguished cases that did not involve the violation of a court order. The Court also held that appellant’s answer to interrogatories was an insufficient disclosure of his witnesses. The Court next held that the trial court did not err in denying rebuttal evidence. Appellee presented no evidence at trial and therefore, there was nothing to rebut. The Court finally held that the trial court did not err in denying appellant’s motion for a new trial. Appellant’s avowal testimony, taken without an oath in the presence of a judge, was not uncontradicted evidence of perjury.

CRIMINAL LAW - Pro se representation; death penalty voir dire and challenges: Jerry Bernard Winstead v. Commonwealth of Kentucky Court of Justice (SC 5/21/2009)

Jerry Bernard Winstead v. Commonwealth of Kentucky Court of Justice
2007-SC-000425-MR May 21, 2009
Opinion by Justice Abramson. All sitting; all concur.

Winstead was convicted of murder and first degree robbery and sentenced to concurrent terms of life without parole and twenty years. On appeal, Winstead argued that he had been denied his right to 2 represent himself at trial. The Supreme Court noted that there is a strong presumption against the waiver of counsel, which can only be overcome by a clear and unequivocal invocation of the right to represent one’s self. The Court concluded that Winstead’s pro se discovery motions and letter to the trial court expressing dissatisfaction with his appointed counsel did not amount to much an invocation—thus there was no error.

The Court also rejected Winstead’s argument that Juror #29 should have been struck for cause since he said Winstead’s poverty and family history would not affect his sentencing decision. The Court held potential jurors are to be struck for cause if they would automatically vote for the death penalty regardless of mitigating evidence, however that right does not extend to disqualifying a potential juror who would give no weight to a particular mitigating factor. The juror in question had said he would not automatically vote to impose the death penalty and would consider mitigating evidence. The Court observed that Winstead was not entitled to jurors who were bound to weigh mitigating evidence in his favor.

 Winstead also argued that he had been denied his constitutional right to voir dire potential jurors on the issue of racial prejudice. Winstead had sought to ask broad questions designed to elicit racial attitudes (e.g. “How would you react to an interracial romantic relationship in your family?”), but the trial court limited the questions to the racial aspects of the case (e.g. “Would the fact that individuals in this case were involved in interracial relationships have any bearing on your judgment?”). The Supreme Court found no abuse of discretion in limiting the extent of the questioning since it did not render the trial fundamentally unfair. The Court noted that Winstead was allowed to ask questions that afforded him the opportunity to assess verbal responses and demeanor regarding the racial facets of the case.

Torts - discovery/admissibility of SSD application, Financial hardship exception to collateral source rule, aggravation of pre-existing condition instructions, judgment NOV denial affirmed: Peters v. Wooten (COA 7/17/2009)

Peters v. Wooten
2007-CA-001955 07/17/2009 2009 WL 2059085

Opinion by Judge Moore; Judge Acree and Senior Judge Knopf concurred.

The Court affirmed a verdict and judgment for the defense after a jury trial in a personal injury case arising from an automobile accident. The Court first held that the trial court erred in ordering discovery of appellants’ Social Security disability application. The Court then held that, although the error occurred, the trial court did not abuse its discretion in overruling appellant’s objection to the evidence at trial when the records were used only to point out inconsistencies in appellant’s prior testimony regarding his work history and did not reference appellant’s attempt to collect benefits or disclose the name of the agency. The Court next adopted the “financial hardship” exception to the collateral source rule and held that the trial court did not abuse its discretion in allowing appellee’s attorney to question appellant regarding collateral source benefits when appellant’s wife opened the door by testifying that appellant did not seek medical treatment due to financial hardship. The Court also held that the probative value of not leaving the impression with the jury that appellant lacked monetary means to seek medical treatment outweighed any prejudice produced by the evidence. The Court next held that the trial court did not err in refusing to give a jury instruction allowing an award of damages resulting from the aggravation of a pre-existing injury when the court provided a broad instruction consistent with case law. The Court finally held that the trial court did not err in denying appellant’s motion for a judgment notwithstanding the verdict as

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appellant’s testimony was subject to a credibility determination by the jury and there was nothing to suggest the verdict was palpably or flagrantly against the evidence such that it indicated the jury reached the verdict as a result of passion or prejudice.

Unqualified right to jury trial: KNIGHT V. HAZARD COAL CORP. (COA 9/5/2008)

KNIGHT V. HAZARD COAL CORP.
CIVIL:  Right to jury trial is unqualified
2007-CA-001712
TO BE PUBLISHED: REVERSING AND REMANDING
PANEL:  DIXON PRESIDING; LAMBERT, STUMBO CONCUR
PERRY COUNTY
        DATE RENDERED: 9/5/2008

Appellants appeal from the Perry Circuit Court’s Findings of Fact, Conclusions of Law and Judgment in this dispute over the use of a coal haul road. The COA held that the Appellants were denied their right to a trial by jury abd reversed.

At issue was a “coal haul road” that crosses the owner's’ property and had been used by the coal company to haul coal, mine supplies, equipment, coal refuse, and personnel. The coal company responded that their right to access the coal haul road was established by the mineral severance deeds and was further permitted by prescriptive easement established by years of open, continuous and uninterrupted use. All parties, except for Hazard Coal Corporation, demanded a jury trial in their initial pleading.

A jury trial was thereafter scheduled but during a pretrial conference, the trial court announced, on its own initiative, that it would conduct a bench trial on all issues except damages. Because the trial court improperly denied Appellants a trial by jury, the COA did not reach the merits of the easement issue.

CR 38.01 clearly states, “The right of trial by jury as declared by the Constitution of Kentucky or as given by a statute of Kentucky shall be preserved to the parties inviolate.” The civil rules further provide that any party may demand a trial by jury and that such demand “may not be withdrawn without the consent of the parties.” CR 38.04.    The Kentucky Constitution, is contravened by Civil Rule 39.01(c), which permits a trial court to deny this right in an action at law for damages upon a determination that the case, because of the peculiar questions involved or because the action involves complicated accounts, or a great detail of facts, is impractical for a jury to intelligently try. the Kentucky Constitution, in actions at law, gives the litigant an unqualified right to trial by jury. Section 7

Digested by Michael Stevens

Whether mortgagee waived its right to compel arbitration through litigation-conduct waiver was an issue for the courts rather than the arbitrators: AMERICAN GENERAL HOME EQUITY, INC. V. KESTEL (SC 5/22/2008)

AMERICAN GENERAL HOME EQUITY, INC. v. KESTEL
ARBITRATION:   Litigation conduct and waiver of arbitration
2006-SC-000830-DG.pdf
PUBLISHED: REVERSING AND REMANDING
OPINION BY MINTON; NOBLE NOT SITTING
FROM MERCER COUNTY
DATE RENDERED: 5/22/2008

American General Home Equity, Inc., filed a mortgage foreclosure action in circuit court against Teresa Kestel. Kestel counterclaimed, asserting fraud and federal and state statutory claims under the Truth in Lending Act and the Kentucky Consumer Protection Act. The trial court denied American General's motion to compel arbitration on Kestel's counterclaims, finding that no arbitration agreement existed between American General and Kestel. A majority of the Court of Appeals panel hearing the case on appeal disagreed with the trial court about the absence of an arbitration agreement; but the panel upheld the denial of American General's motion to compel arbitration anyway, holding, instead, that American General had waived its arbitration rights through its “nine-month delay in moving for arbitration” following the filing of Kestel's counterclaims.

SCOKY granted discretionary review in order to provide guidance to courts and counsel concerning when a party's litigation conduct amounts to an implied waiver of its rights to enforce a contractual right to arbitration. The Court concluded that the mortgagee's litigation conduct was not clearly inconsistent with asserting contractual arbitration rights and did not waive its right to arbitrate the mortgagor Kestel's counter-claim; and the Court of Appeals erred in determining that American General waived its arbitration rights.  Case was reversed and remanded to the trial court for proceedings consistent with this opinion. This ruling leaves open on remand the possibility that Kestel may, by proper motion, raise her contention that application of the arbitration provisions could, by cost or otherwise, deprive her of an adequate opportunity to present her claims and defenses.  Issue of whether mortgagee waived its right to compel arbitration through litigation-conduct waiver was an issue for the courts rather than the arbitrators.

Mike Stevens, ed.

Judicial disqualification learned after the case: KESSLER HOMES, IC. V. PETZOLD (COA 1/18/2008)

KESSLER HOMES, IC. V. PETZOLD
JUDGES:  Disqualification
2006-CA-001127
PUBLISHED: VACATING AND REMANDING
PANEL: LAMBERT PRESIDING; DIXON, ROSENBLUM CONCUR
COUNTY: FAYETTE
DATE RENDERED: 01/18/2008

This action began when Kessler Homes sued the Petzolds for the outstanding balance on a house construction contract. The Petzolds denied liability and counter claimed, seeking compensatory damages for substandard workmanship. The circuit court conducted a bench trial on the parties' claims, ruling nearly uniformly in favor of the Petzolds in which the judge awarded the Petzolds, the customers, over $30,000.00 in compensatory damages and over $100,000.00 in litigation costs.

Following the entry of judgment, Kessler Homes learned that the Petzolds's daughter was the trial judge's personal tax accountant, and during the pendency of the litigation, also served as treasurer of the judge's reelection campaign. Kessler then petitioned to vacate the judgment on the ground that the trial judge had a conflict of interest in this case.

A judge is disqualified from presiding over a case “whenever the judge's impartiality might reasonably be questioned."  Recusal is mandatory when a judge's impartiality might reasonably be questioned.  Neither the court nor counsel dispute that had the trial judge's relationship to the Petzolds come to light prior to the entry of judgment, the trial judge should have, and would have, recused herself to avoid any appearance of impartiality.

The trial judge's ignorance of his conflict of interest during the pendency of the litigation was irrelevant because the legal standard is whether “a reasonable person, knowing all the circumstances, would expect that the judge would have actual knowledge.”

Where a judge lacks actual knowledge of facts indicating an appearance of partiality during litigation, but gains it postjudgment in circumstances in which a reasonable observer would have expected the judge to have been aware of the relationship, he must “take the steps necessary to maintain public confidence in the impartiality of the judiciary” by disqualifying himself and vacating his judgment. Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 860-61, 108 S.Ct. 2194, 2203, 100 L.Ed.2d 855 (1988).

The overriding policy concern here is not judicial veracity but rather public confidence in the impartiality of the judicial system. The typical, objective observer might well find it somewhat implausible that a judge running for reelection would be unaware that her campaign treasurer's parents were litigants in her court. Moreover, because this case was not tried by jury, but was rather conducted as a bench trial in which virtually all claims were resolved in the Petzolds's favor, including the award of litigation costs trebling the compensatory damages award, the same observer might well question the judge's impartiality.

While the COA did NOT find actual partiality, it did find there can be no question that the rule against appearance of impartiality has been violated and held that the extraordinary remedy of vacating the judgment is also appropriate here.  The verdict was vacated and remanded with directions to the trial court that the trial judge recuse and a new trial be granted.

Michael Stevens

Referring to inadmissible evidence in opening statement of criminal trial results in reversal: PARKER V. COM (SC 12/20/2007)

PARKER V. COM
CRIMINAL:  Opening Statement
2005-SC-000343-MR.pdf
PUBLISHED: REVERSING
OPINION: NOBLE; SCOTT CONCURS IN PART AND DISSENTS IN PART BY SEP. OP; ABRAMSON NOT SITTING
DATE RENDERED: 12/20/2007

SC found Parker to be entitled to a new trial following conviction for murder because the trial court erred in allowing the playing of a rap CD in opening statement, with commentary by the Commonwealth, when the CD could not later be properly admitted, and the error could not be cured by admonition. Further, TC committed reversible error by denying Parker an instruction on second-degree manslaughter.

Before trial, Louisville police officers came into possession of a rap CD allegedly made by Parker, his brother Kenneth, and "Two Tom" Taylor. The three charged an officer five dollars for the CD. The trial court allowed the CD to be played during the Commonwealth's opening statement over objection but warned the Commonwealth that if the CD was not admitted during trial that Parker would be entitled to a mistrial. The Commonwealth Attorney asserted a "good faith belief" that statements on the CD would constitute "adoptive admissions" by Parker, and during opening, commented that the Crips rapped about a violent act they committed on July 31, 2000 . After playing the CD, the Commonwealth commented further that the lyrics said "shot the bitch at close range" and "remember the 31St ." Later during the trial when the Commonwealth offered the CD into evidence, the trial court excluded it because it could not be properly authenticated or construed as adoptive admissions. Parker moved for a mistrial, and the TC denied the motion despite its previous statement.

In playing the CD during opening statement and in telling the jury what it purported to say, the Commonwealth placed unauthenticated evidence before the jury. As the trial developed it became apparent that the Commonwealth could not establish the meaning of the words, or even what they were, through witnesses, nor could the Commonwealth prove who made the CD, or whether Parker was actually connected to it. In short, the Commonwealth was able to tell the jury that the CD referred to Parker having committed the murder of which he was accused, and that he was bragging about it through the CD recording (which was clearly prejudicial) even though the CD could not be sufficiently authenticated to be admitted into evidence. Obviously Parker had no ability to cross-examine regarding this information or to otherwise properly defend against it. By using unauthenticated materials in opening statement the Commonwealth unfairly exposed the jury to inflammatory information of such a nature that no admonition could reasonably be believed to cure it.

TC usurped the role of the jury in determining that the evidence did not support a manslaughter second degree instruction. Even though the jury did find a wanton state of mind under the instructions given, they were not given the opportunity to consider a lesser state of wanton culpability. It is possible the jury would have found wanton murder anyway; however, it is also possible for a finding of lesser wanton behavior, even though unlikely.

SUMMARY:
SC found Parker to be entitled to a new trial following conviction for murder because the trial court erred in allowing the playing of a rap CD in opening statement, with commentary by the Commonwealth, when the CD could not later be properly admitted, and the error could not be cured by admonition.

Scott C. Byrd
Olgin and Byrd