Standards of Review: Published decision addresses motions for JNOV and Directed Verdict (Moloney vs. Becker, COA, PUB, 4/19/2013)

Here is another decision by the Court of Appeals addressing the standard of review of a motion for directed verdict or JNOV, but this time it is in a published decision.  Although the law is the law, a decision that has been “published” carries more weight than those that have not been published.

ESTATE OF MABEL C. MOLONEY VS. BECKER
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
NICKELL (CONCURS) AND TAYLOR (CONCURS)
2011-CA-001773-MR
TO BE PUBLISHED 4/19/2013
BRACKEN

VANMETER, JUDGE: The Estate of Mabel C. Moloney (“Estate”) appeals from the Bracken Circuit Court judgment, as well as its order denying the Estate’s motion for a judgment notwithstanding the verdict (JNOV), resulting in the dismissal of its complaint alleging negligence against John Becker. For the following reasons, we affirm. ***

On appeal, the Estate argues the trial court erred by denying its motions for a directed verdict and JNOV because the evidence demonstrated that John engaged in the unauthorized practice of law, prohibited by KRS1 524.130, and thus, he was negligent per se. We disagree.

The standard of review regarding a motion for a directed verdict or JNOV has been described as a difficult one for an appellant to meet. Peters v. Wooten, 297 S.W.3d 55, 65 (Ky. App. 2009). Our court in Taylor v. Kennedy, 700 S.W.2d 415 (Ky. App. 1985) described it as follows:

In ruling on either a motion for a directed verdict or a motion for a [JNOV], a trial court is under a duty to consider the evidence in the strongest possible light in favor of the party opposing the motion. Furthermore, it is required to give the opposing party the advantage of every fair and reasonable inference which can be drawn from the evidence. And, it is precluded from entering either a directed verdict or [JNOV] unless there is a complete absence of proof on a material issue in the action, or if no disputed issue of fact exists upon which reasonable men could differ.

Id. at 416 (citation omitted). We may not disturb the ruling unless the decision is clearly erroneous. Peters, 297 S.W.3d at 65 (citation omitted). As such, a denial of a directed verdict or JNOV “should only be reversed on appeal when it is shown that the verdict was palpably or flagrantly against the evidence such that it indicates the jury reached the verdict as a result of passion or prejudice.” Id. (citation omitted).

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Standards of Review: Motion for JNOV and Directed Verdict: Marlow vs. Buck, COA, NPO 4/12/2013

The following decision addressed the appellate standard of review of a denial by the trial court of a motion for judgment notwithstanding the verdict (JNOV) and motion for directed verdict.

MARLOW VS. BUCK
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
MOORE (CONCURS) AND TAYLOR (CONCURS IN RESULT ONLY)
2012-CA-000125-MR
2012-CA-000189-MR
NOT TO BE PUBLISHED 4/12/2013
FAYETTE

When asked to review a trial court’s denial of JNOV, “we are to affirm . . . ‘unless there is a complete absence of proof on a material issue in the action, or if no disputed issue of fact exists upon which reasonable men could differ.’” Fister v. Commonwealth, 133 S.W.3d 480, 487 (Ky. App. 2003) (quoting Taylor v. Kennedy, 700 S.W.2d 415, 416 (Ky. App. 1985)) (emphasis added). Further, “‘[t]he trial court is vested with a broad discretion in granting or refusing a new trial, and this Court will not interfere unless it appears that there has been an abuse of discretion.’” Id. (quoting Whelan v. Memory–Swift Homes, Inc., 315 S.W.2d 593, 594 (Ky. 1958)). “The reason appellate courts defer to the trial court’s decision to grant a new trial is because the decision may depend on factors that do not readily appear in the appellate record, such as witness demeanor and observations of the jury.” CertainTeed Corp. v. Dexter, 330 S.W.3d 64, 74 (Ky. 2010).

In reviewing a denial of a motion for a directed verdict or for JNOV, an appellate court must reverse if it is shown that the verdict was either flagrantly or palpably contradictory to the evidence since such would indicate the jury reached the verdict through passion or prejudice. Lewis v. Bledsoe Surface Min. Co., 798 S.W.2d 459, 461 (Ky. 1990) (citing NCAA v. Hornung, 754 S.W.2d 855, 860 (Ky. 1988)). Evidence in support of the prevailing party must be considered to be true. The reviewing court may not make determinations regarding credibility nor the weight of the evidence, as such is within the purview of the jury. Kentucky & Indiana Terminal R. Co. v. Cantrell, 298 Ky. 743, 184 S.W.2d 111 (Ky. 1944), and Cochran v. Downing, 247 S.W.2d 228 (Ky. 1952). With these standards in mind, we now consider the issues presented for our review.

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TORTS. WRONGFUL DEATH. MEDICAL MALPRACTICE. DIRECTED VERDICT. Marlow vs. Buck, COA, NPO 4/12/2013

MARLOW(PATRICIA), AS ADMINISTRATRIX, ET AL.
VS.
BUCK (JAMES)
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
MOORE (CONCURS) AND TAYLOR (CONCURS IN RESULT ONLY)
2012-CA-000125-MR
2012-CA-000189-MR
NOT TO BE PUBLISHED 4/12/2013

NICKELL, JUDGE: Patricia Marlow, on behalf of the estate and minor children of Doveanna Marlow, deceased, (collectively “Marlow”) has appealed from the December 22, 2011, denial of her motion for a judgment notwithstanding the verdict (“JNOV”) following a jury verdict and subsequent judgment entered by the Fayette Circuit Court on December 2, 2011, in favor of James Buck, M.D. Dr. Buck has filed a protective cross-appeal. After a careful review of the record, the briefs and the law, we affirm.

Marlow’s executrix brought this action against Dr. Buck on December 31, 2008, and the case proceeded to a jury trial on November 14-17, 2011. The jury was presented evidence and testimony on three general issues: whether Dr. Buck breached the standard of care; whether such breach was a substantial factor in causing Marlow’s death; and damages. Of importance to this appeal, Dr. Buck admitted he had been the only person pushing the needle that pierced Marlow’s aorta and took responsibility for causing her death. He could only speculate as to why the guide needle was inadvertently advanced too far, but vehemently denied that he breached any standard of care. He stated he had performed thousands of CT-guided procedures without incident and confirmed he had acted in “the same careful and deliberate way” during Marlow’s procedure. Experts called by both sides universally agreed that bad results could occur absent medical malpractice in biopsy procedures.

At the close of Marlow’s case-in-chief, and again at the close of all the proof, Marlow moved the trial court to direct a verdict in her favor. She argued Dr. Buck and his retained causation expert made judicial admissions that removed the issue of causation from the jury. Dr. Buck opposed the motions and contended that although he had admitted he caused the guide needle to puncture Marlow’s aorta, there had been no admission he violated the standard of care or that he was legally responsible for Marlow’s death based on such breach. The trial court denied the motions and reasoned sufficient evidence existed to send the matter to the jury.

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Motions: Rule 11 and denial of sancitons; Lexington Investment Co. vs. Randy Willeroy, COA Published, 3/1/2013

232.  Rule 11.  COA affirmed denial of sanctions.
3/1/2013 Published Decision by COA
Lexington Investment Co. vs. Randy Willeroy
MAZE, JUDGE: Lexington Investment Company, Inc. and Mathew Stockham (collectively, “the Brokers”) appeal1 from an order and judgment by the Fayette Circuit Court denying their motion for sanctions and attorney fees against Randy Willeroy (Willeroy) and his attorneys Cliff and Lynn Stidham (Stidham). The Brokers assert that Willeroy and Stidham brought an action against them without adequately researching the factual and legal basis for the claims. Consequently, they argue that the trial court abused its discretion by denying their motion for sanctions pursuant to Kentucky Rule of Civil Procedure (“CR”) 11. But while Willeroy’s claims against the Brokers were not successful, we conclude that he and Stidham had a reasonable basis for the claims at the time the action was filed. Hence, we affirm the trial court’s denial of the Brokers’ motion for sanctions.

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Stds of Review: of Denial of Motion to Intervene as Matter of Right – substance and timeliness of motion (Hazel Enterprises v. Community Financials, COA, Pub. 7/27/12)

We review the denial of a motion to intervene as a matter of right for clear error. Carter v. Smith, 170 S.W.3d 402, 409 (Ky. App. 2004). However, a court’s evaluation of the timeliness of a motion to intervene is reviewed under an abuse of discretion standard. Id. at 408.

* * *

The sole issue on appeal is whether the circuit court erred when it denied Hazel’s motion to intervene as a matter of right. Intervention as a matter of right is permitted:

Upon timely application . . . when the applicant claims an interest relating to the property or transaction which is the subject of the action and is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest . . . .

CR 24.01(1)(b) (emphasis added). Thus, intervention is only permitted upon a timely motion. Id; see Carter, 170 S.W.3d at 407-09.

A court may consider the following factors to determine whether a motion to intervene was timely: “‘(1) [T]he point to which the suit has progressed; (2) the purpose for which intervention is sought; (3) the length of time preceding the application during which the proposed intervenor knew or reasonably should have known of his interest in the case; (4) the prejudice to the original parties due to the proposed intervenor’s failure, after he or she knew or reasonably should have known of his or her interest in the case, to apply promptly for intervention; and (5) the existence of unusual circumstances militating against or in favor of intervention.’” Carter, 170 S.W.3d at 408 (quoting Grubbs v. Norris, 870 F.2d 343, 345 (6th Cir. 1989)).

Although post-judgment intervention is not strictly forbidden, it is widely within the discretion of the circuit judge. Arnold v. Commonwealth, 62 S.W.3d 366, 369 (Ky. 2001). Timeliness is a question of fact, which generally should be left to the circuit court. Ambassador College v. Combs, 636 S.W.2d 305, 307 (Ky. 1982) (citing Dairyland Ins. Co. v. Clark, 476 S.W.2d 202, 203 (Ky. 1972)). A “party wishing to intervene after final judgment has a ‘special burden’ to justify the untimeliness.” Arnold, 62 S.W.3d at 369 (quoting Monticello Electric Plant Bd. v. Board of Educ. of Wayne County, 310 S.W.2d 272, 274 (Ky. 1958)).

Taken from Hazel Enerprises, LLC v. Community Financial Services Bank, COA, Pub., 7/27/2012

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).

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).

 

 

 

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.

Std. of Review: Directed Verdict Civil Trial

Upon review of a directed verdict, it must be determined “if a reasonable person could only conclude that movant was entitled to a verdict.” Zapp v. CSX Transportation, Inc., 300 S.W.3d 219, 221 (Ky. App. 2009)(citing CR 50.01; Lee v. Tucker, 365 S.W.2d 849 (Ky. 1963)) (footnote omitted). In so determining, “the court must view the evidence and all reasonable inferences therefrom in a light most favorable to the nonmoving party.” Zapp, 300 S.W.3d at 221.

From: 

JOSEPH GAINES, A MINOR BY AND THROUGH HIS PARENTS, ET AL
VS.
DIAMOND POND PRODUCTS, INC.
OPINION AFFIRMING
TAYLOR (PRESIDING JUDGE)
ACREE (CONCURS) AND BUCKINGHAM (SENIOR STATUS JUDGE)(CONCURS)
2009-CA-000848-MR 12/29/2010
TO BE PUBLISHED
FAYETTE

————————–

From  McAlpin v. Davis Construction Inc., COA, Published, 2/11/2011

Upon consideration of a motion for a directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the [nonmoving party]. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the [nonmoving party] is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.

On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal.

Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991) (citations omitted).