STDS of REVIEW: Appellate review of jury instructions in civil case

1165.  CIVIL PROCEDURE (DIRECTED VERDICT). INSTRUCTIONS. PAIN, SUFFERING, INCONVENIENCE.
FERGUSON (BARBARA)
VS.
UNDERTOW TRUCKING, INC
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
ACREE (CONCURS) AND WINE (CONCURS)
2011-CA-000064-MR
NOT TO BE PUBLISHED
JOHNSON
12/22/2011 COA

With regard to the review of jury instructions, any errors in jury instructions are considered as questions of law and are reviewed by this Court de novo. Hamilton v. CSX Transportation, Inc., 208 S.W.3d 272, 275 (Ky. App. 2006).

STDS OF REVIEW: Appellate review of directed verdict denial

1165.  CIVIL PROCEDURE (DIRECTED VERDICT). INSTRUCTIONS. PAIN, SUFFERING, INCONVENIENCE.
FERGUSON (BARBARA)
VS.
UNDERTOW TRUCKING, INC
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
ACREE (CONCURS) AND WINE (CONCURS)
2011-CA-000064-MR
NOT TO BE PUBLISHED
JOHNSON

STANDARDS OF REVIEW: DIRECTED VERDICT AND INSTRUCTIONS

The standard of review for reviewing a motion for a directed verdict is
set forth in Lewis v. Bledsoe Surface Mining Company, 798 S.W.2d 459, 461–62 (Ky. 1990), as follows:

Upon review of the evidence supporting a judgment entered upon a jury verdict, the role of an appellate court is limited to determining whether the trial court erred in failing to grant the motion for directed verdict. All evidence which favors the prevailing party must be taken as true and the reviewing court is not at liberty to determine credibility or the weight which should be given to the evidence, these being functions reserved to the trier of fact. Kentucky & Indiana Terminal R. Co. v. Cantrell, 298 Ky., 743, 184 S.W.2d 111 (1944), and Cochran v. Downing, Ky., 247 S.W.2d 228 (1952). The prevailing party is entitled to all reasonable inferences which may be drawn from the evidence. Upon completion of such an evidentiary review, the appellate court must determine whether the verdict rendered is “‘palpably or flagrantly’ against the evidence so as ‘to indicate that it was reached as a result of passion or prejudice.’” NCAA v. Hornung, Ky., 754 S.W.2d 855, 860 (1988). If the reviewing court concludes that such is the case, it is at liberty to reverse the judgment on the grounds that the trial court erred in failing to sustain the motion for directed verdict. Otherwise, the judgment must be affirmed.

Thus, as the reviewing court, we do not address issues of credibility or the weight of the evidence. Our responsibility is to treat all evidence in favor of the prevailing party as true and make all reasonable inferences that may be drawn from the evidence in favor of the prevailing party. Under such circumstances the judgment of the trial court will only be reversed when a verdict is so palpably or flagrantly against the evidence as to indicate that it was reached as a result of passion or prejudice. In the instant case, the prevailing party is Undertow Trucking. Similarly, the same standard that is used for a directed verdict is also used for a judgment notwithstanding the verdict. Lovins v. Napier, 814 S.W.2d 921, 922 (Ky. 1991).

Civil Procedure: When defendant dies, then claim must be revived, or else the claim dies too

Failure to revive a cause of action when the defendant dies is fatal to the claim if not accomplished timely.  Plaintiff's attempt to color this as a fiction and assert the claim against the insurance company as the real party in interest, fell on deaf ears at the Court of Appeals.

 1045.  ATTORNEY FEES.  CONTRACT VS. QUANTUM MERUIT UPON VOLUNTARY WITHDRAWING.
BRADLEY (SAM), ET AL.
VS.
ESTATE OF HERMAN LESTER
OPINION VACATING AND REMANDING
ACREE (PRESIDING JUDGE)
DIXON (CONCURS) AND LAMBERT (CONCURS)
2009-CA-002157-MR
TO BE PUBLISHED
FLOYD

ACREE, JUDGE: Appellants appeal the Floyd Circuit Court’s order awarding attorney fees to the Appellee, the Estate of Herman Lester. Specifically, the question presented is whether an attorney who withdraws from representation is entitled to recover his fee pursuant to the original contingency fee agreement, or limited to recovery on a quantum meruit basis. Upon the facts before us, we find quantum meruit is the proper calculation of fees. Therefore, we vacate the order of the Floyd Circuit Court and remand for additional proceedings.

Stds of Review: Appellate review of dismissal for lack of prosecution

1045.  ATTORNEY FEES.  CONTRACT VS. QUANTUM MERUIT UPON VOLUNTARY WITHDRAWING.
BRADLEY (SAM), ET AL.
VS.
ESTATE OF HERMAN LESTER
OPINION VACATING AND REMANDING
ACREE (PRESIDING JUDGE)
DIXON (CONCURS) AND LAMBERT (CONCURS)
2009-CA-002157-MR
TO BE PUBLISHED
FLOYD

ACREE, JUDGE: Appellants appeal the Floyd Circuit Court’s order awarding attorney fees to the Appellee, the Estate of Herman Lester. Specifically, the question presented is whether an attorney who withdraws from representation is entitled to recover his fee pursuant to the original contingency fee agreement, or limited to recovery on a quantum meruit basis. Upon the facts before us, we find quantum meruit is the proper calculation of fees. Therefore, we vacate the order of the Floyd Circuit Court and remand for additional proceedings.

Summary Judgment: NPO COA decision in Gant v. State Farm re PIP, wage loss, self employed, and opportunity to engage in discovery prior to summary judgment

In Gant v. State Farm, NPO, COA 4/22/2011, Judge Moore in a nonpublished COA decision dealt within the PIP context the proof needed to obtain lost wages by a self-employed claimant.  In this case, the claimaint presented a spreadsheet on lost income, but the PIP carrier requested tax returns.  The returns were never provided presuit or during suit.  State Farm obtained summary judgment, and the issues were the burden and the opportunity to present evidence.

The reason I am noting this decision is the fact that obtaining wage loss for self-employed persons is difficult. Although the tax returns were requested, they were not provided.   However,  if the tax returns had been provided, what would they have calculated the wage loss on gross sales/earnings or net earnings (after expenses etc)?

All too often, I encounter adjusters who want the net as the basis for calculating wage loss.  This is not correct (IMHO).  Why?  The expenses continue, and it is the wages/earnings that stop.  If the person was employed, then looking at net business income would be the same as looking at the claimant’s individual tax returns after deductions, exclusions, standard deductions, etc.  I just wanted to make that point since I am sometimes concerned that appellate decisions ignore the realities of the world.

The other issue which I thought was of interest is that summary judgment motions sometimes are fast and furioius and forego the opportunity to flesh out the facts.  This case has some good law regarding the standard of review on this point.  Please note that the COA held that the opportunity to engage in discovery and prove her point was amply given to the claimant/plaintiff.

The standard for summary judgment is as follows: “if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  CR3 56.03.

Summary judgment is appropriate when it “appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor.” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991). Also, summary judgment cannot be avoided solely on the basis that a party hopes to obtain evidence in the future that will create a genuine issue of material fact. Neal v. Welker, 426 S.W.2d 476, 479-80 (Ky. 1968). However, “summary judgment is only proper after a party has been given ample opportunity to complete discovery[.]” Pendleton Brothers Vending, Inc. v. Commonwealth Finance and Administration Cabinet, 758 S.W.2d 24, 29 (Ky. 1998). It is not necessary that a party actually complete discovery, only that they had an opportunity to do so. Hartford Insurance Group v. Citizens Fidelity Bank & Trust Co., 579 S.W.2d 628, 630 (Ky. App. 1979). We review a grant of summary judgment de novo. Burton v. Kentucky Farm Bureau Mut. Ins. Co., 326 S.W.3d 474, 475 (Ky. App. 2010).

 

 

 

Standards of Review: Summary Judgment – Opportunity to complete discovery

From Gant v. State Farm, NPO, COA 4/22/2011

This case addresses within the PIP context the proof needed to obtain lost wages by a self-employed claimant.  Although one of the issues on appeal related to the burden and quality of the evidence presented which the court considered self-serving spreadsheet (the PIP carrier had requested tax returns which were never provided over a two-year period), the remaining issue on appeal dealt with the opportunity to present the evidence:

The standard for summary judgment is as follows: “if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”
2 Kentucky Revised Statute.
-3-
CR3 56.03. Summary judgment is appropriate when it “appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor.” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991). Also, summary judgment cannot be avoided solely on the basis that a party hopes to obtain evidence in the future that will create a genuine issue of material fact. Neal v. Welker, 426 S.W.2d 476, 479-80 (Ky. 1968). However, “summary judgment is only proper after a party has been given ample opportunity to complete discovery[.]” Pendleton Brothers Vending, Inc. v. Commonwealth Finance and Administration Cabinet, 758 S.W.2d 24, 29 (Ky. 1998). It is not necessary that a party actually complete discovery, only that they had an opportunity to do so. Hartford Insurance Group v. Citizens Fidelity Bank & Trust Co., 579 S.W.2d 628, 630 (Ky. App. 1979). We review a grant of summary judgment de novo. Burton v. Kentucky Farm Bureau Mut. Ins. Co., 326 S.W.3d 474, 475 (Ky. App. 2010).

Std of Review: Leave to amend by trial judge

From Perry v. National City Bank, COA, NPO, 3/18/2011

Leave to amend must be freely given when justice so requires. CR3 15.01. However, a court has broad discretion in granting or denying leave to amend, and may base its denial of leave to amend upon the “futility of the amendment itself.” First Nat. Bank of Cincinnati v. Hartman, 747 S.W.2d 614, 616 (Ky. App. 1988). We review a denial of leave to amend a complaint for an abuse of discretion. Graves v. Winer, 351 S.W.2d 193, 197 (Ky. 1961).

Stds of Review: Reconsideration of prior trial ruling subject to abuse of discretion (and determining indispensable party)

In Jones v. Stucker, the COA in a nonpublished decision, dated 2/25/2011 applied the abuse of discretion standard to the trial court's ruling on motion to reconsider and rescind a prior order of the trial court which had determined if a party was indispensable.  The two issues are a little muddled but included here:

We review the trial court’s decision under an abuse of discretion standard. The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Com. v. English, 993 S.W.2d 941, 945 (Ky. 1999). Therefore, we affirm the lower court’s decision unless there is a showing of some “flagrant miscarriage of justice.” Gross v. Com., 648 S.W.2d 853, 858 (Ky. 1983). With this standard in mind, we examine the trial court’s ruling.

DISCUSSION

The appellants first argue that the trial court erred in granting Stucker’s motion to reconsider and, subsequently, dismissing the third-party complaint against Myles. They assert that a court must employ the test set forth in Davidson v. Castner-Knott Dry Goods Co., Inc., 202 S.W.3d 597 (Ky. App. 2006), to rescind a prior ruling. First, “a judge may reexamine an earlier ruling and rescind it if he has a reasonable conviction that it was wrong and it would not cause undue prejudice to the party that benefited from it.” Id. at 602 (quoting Hallahan v. The Courier-Journal, 138 S.W.3d 699, 705 n.4 (Ky. App. 2004)). Appellants argue that they would suffer undue prejudice and hardship with the dismissal of the third-party complaint and removal of Myles as a party. They contend that the time which passed during which Myles was a party led them to develop their trial strategy, hire experts, research and draft preliminary jury instructions and undertake discovery with the understanding that Myles would be an involved participant. We do not find this a convincing argument.

Kentucky Rules of Civil Procedure (CR) 19 sets forth that it is within the sound discretion of the trial court to make a determination as to whether additional parties are necessary to ongoing litigation and should be joined. West v. Goldstein, 830 S.W.2d 379, 385 (Ky. 1992). This rule provides that a party should be joined where:
(a) in his absence complete relief cannot be accorded among those already parties, or (b) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reasons of his claim interest.
CR 19.01(a)

Here, appellants do not have a case against Myles.

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.

 

 

Civil Procedure Protections for incarcerated defendants served in civil action addressed

Issues surrounding serving and complying with Civil Rules involving civil actions against incarcerated defendants can be a problem.  The following unpublished decision contains some black letter law of import and note.

76.  DEFAULT JUDGMENTS, PRISONERS/CONFINED DEFENDANTS, AND C R 17.04(1)
WEIRD (THOMAS)
VS.
EMBERTON (ERIC)
OPINION REVERSING IN PART AND REMANDING
NICKELL (PRESIDING JUDGE)
CLAYTON (CONCURS) AND THOMPSON (CONCURS)
2007-CA-000938-MR
NOT TO BE PUBLISHED
JEFFERSON

NICKELL, JUDGE: Thomas Weird appeals1 from the April 3, 2007, opinion and order of the Jefferson Circuit Court granting Eric Emberton’s motion to set aside an order entered on December 6, 2006, which had set aside a default judgment entered on December 6, 2005, and allowed Weird’s ex-wife, Cheryl, to intervene. [1    Whether this appeal was timely filed was the subject of a prior appeal to this Court, Weird v. Emberton, Case No. 2007-CA-000938-MR, in which the Supreme Court of Kentucky granted discretionary review. In Weird v. Emberton, 306 S.W.3d 67 (Ky. 2010), the Supreme Court determined the appeal was timely filed where the Jefferson Circuit Court Clerk’s Office was closed for observance of the Kentucky Derby Parade on the last day for filing the notice of appeal.] Due to noncompliance with CR2 17.04(1), relative to entry of the December 6, 2005, default judgment, we reverse in part and remand for proceedings consistent with this Opinion.

The limited focus of this appeal is the operation of CR 17.04(1) as it
pertains to the lack of filing a timely answer to a complaint and a subsequent motion for default judgment. Weird argues default judgment should never have been entered against him because he was an inmate throughout the twenty days he had to respond to the complaint, he failed to file an answer to the complaint, and no guardian ad litem was appointed by the trial court to represent him prior to entry of the judgment. In contrast, Emberton argues Weird was free on bond at the time default judgment was entered and therefore the appointment of a guardian ad litem required under CR 17.04(1) was not triggered. We agree with Weird and reverse in part and remand.