SHERI BERRIER (formerly SHERI WAKEFIELD) v. LEWIS S. BIZER and BIZER & BIZER OPTOMETRISTS, Co-partners, d/b/a BIZER ENTERPRISES, LTD., a/k/a DR. BIZER'S VISION WORLD

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RENDERED: February 12, 1999; 10:00 a.m. NOT TO BE PUBLISHED C ommonwealth O f K entucky C ourt O f A ppeals NO. 1997-CA-003030-MR SHERI BERRIER (formerly SHERI WAKEFIELD) v. APPELLANT APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE THOMAS J. KNOPF, JUDGE ACTION NO. 94-CI-002628 LEWIS S. BIZER and BIZER & BIZER OPTOMETRISTS, Co-partners, d/b/a BIZER ENTERPRISES, LTD., a/k/a DR. BIZER'S VISION WORLD APPELLEES OPINION AFFIRMING ** ** ** ** ** BEFORE: COMBS, DYCHE, AND SCHRODER, JUDGES. SCHRODER, JUDGE: A disgruntled employee is appealing a jury verdict for the employer in an action for gender/pregnancy discrimination and retaliatory discharge. Appellant alleges the trial court made reversible procedural and evidentiary rulings during the trial. Sheri Wakefield (now Berrier), hereinafter referred to as Sheri, was hired by appellees, hereinafter referred to as Vison World, on September 23, 1991. announced she was pregnant. In July 1993, Sheri In August of 1993, Sheri made a complaint to the Kentucky Labor Cabinet concerning break and lunch periods. Sheri was discharged on November 22, 1993. She filed for unemployment benefits and Vision World resisted. hearing was held and the referee ruled in Sheri’s favor. A was no appeal. There Sheri requested vacation benefits which were initially denied. A call from the Labor Cabinet resulted in payment of said benefits. After the baby was born, Sheri visited work on May 19, 1994 with the baby. The assistant manager asked her to leave and she filed suit the next day for retaliatory discharge and gender/pregnancy discrimination. ensued which resulted in a defense verdict. A six-day trial Sheri appeals contending there were a number of procedural and evidentiary rulings which constituted reversible error. Appellant’s first allegation of error is the exclusion of certain post-discharge acts which she alleges are relevant to show retaliation in her discharge. The evidence excluded was the appellees’ hesitation or resistance in paying vacation pay, appellees’ contesting Sheri’s unemployment claim, and Sheri’s expulsion from the work place after she had her baby. What happened after Sheri was fired is not relevant as to why she was fired. Therefore, the trial court was correct in excluding this evidence. Under KRE 401, “‘[r]elevant evidence’ means having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable. . . .” Relevancy determinations rest heavily in the discretion of the trial court and its rulings will not be disturbed in the absence of an abuse of discretion. -2- Glens Falls Ins. Co. v. Ogden, Ky., 310 S.W.2d 547 (1958); Partin v. Commonwealth, Ky., 918 S.W.2d 219 (1996). Appellant’s second contention is that the trial court erred in not holding unanswered requests for admission under CR 36.01 as admitted by operation of CR 36.01(2), and erred in failing to hold the admissions as conclusively established facts under CR 36.02. On January 23, 1996, appellant served a request for admissions, one through seventy-three. On March 6, 1996, appellant filed a motion to compel discovery concerning the requests for admissions. The trial court overruled [sic] the appellant’s request for admissions on April 15, 1996 (record p. 275). Appellant suggests not denying or objecting to the request amounted to an admission that could not be withdrawn. Under Sims Motor Transportation Lines, Inc. v. Foster, Ky., 293 S.W.2d 226 (1956), a trial court has discretion to allow responses to a request for admissions to be filed late. Although the court held the day before trial is too late, it did recognize the trial court had some discretion with CR 6.02(2). In the case sub judice, the request was served on January 23, 1996, and quashed by the trial court on April 15, 1996. until October of 1997. The trial was not held Discovery did not stop with the April 15 order, even though at one time the court did limit discovery. We do not believe the trial court abused its discretion. Appellant alleges error by the trial court in excluding all references to the unemployment hearing but offers no authority for its admission. In Board of Education of Covington v. Gray, Ky. App., 806 S.W.2d 400 (1991), the Court had a similar -3- situation where a teacher sued for breach of contract and tried to introduce the findings from a prior unemployment compensation hearing. In denying the request, our Court discussed collateral estoppel, issue preclusion, and res judicata. However, the Court ruled that in a breach of contract action for firing the teacher, the results of the unemployment hearing were not relevant because the unemployment system “. . . is set up to expeditiously award temporary, monetary benefits to a worker after the loss of his or her job.” Id. at 402. The Court added, we do not believe that the procedures utilized in the unemployment system either grant any party a full, true opportunity to litigate issues, or even encourage any meaningful participation in the process. As we stated, the unemployment system is set up to quickly determine benefit eligibility status. Hearings are generally informal and expeditious. The rules of evidence are relaxed1. This, of course, often leads to the inclusion of evidence which might otherwise be inadmissible in a court of law. (Citations and footnote omitted.) Id. at 403. The Court in Gray quoted Salida School District R-32-J v. Morrison, Colo., 732 P.2d 1160, 1165 (1987) in summarizing the reasons for not using the unemployment hearing findings in subsequent civil actions: An unemployment compensation hearing is designed to adjudicate promptly a narrow issue of law, and to grant a limited remedy to an unemployed worker. The use of an unemployment compensation decision to bind the parties in a subsequent . . . action . . . would be wholly inappropriate, and would frustrate the underlying purpose of . . . collateral estoppel. If findings entered at an unemployment compensation 1 -4- hearing may be used to establish the employer’s liability . . . in a subsequent lawsuit, the employer would have a strong incentive to use its superior resources consistently to oppose a discharged employee’s claim for unemployment benefits. Issued presented . . . will be contested strongly, and the hearings will become lengthy and more detailed, and will no longer be suited to the prompt resolution of unemployment compensation claims. Judicial economy would be frustrated, rather than improved, as many unemployment compensation hearings become forums in which claims for unlawful or unconstitutional discharge are tried. Gray, 806 S.W.2d at 403. Next, appellant argues error in allowing certain typewritten witness statements into evidence. Appellant characterizes the statements as reports prepared by appellees’ counsel, in the first person, unsworn, and unsigned, amounting to conclusory hearsay summaries of counsel’s opinions of what the witnesses told him. The appellees claim the attorney interviewed several co-workers who had first-hand knowledge of matters, that counsel made handwritten notes from the witnesses, had them typed and sent to the employees for corrections, and that after corrections were made, they were retyped. Appellees assert the statements were used to refresh the witnesses’ memories and were admitted by authority of KRE 612, were provided in advance, and that the witnesses were subject to cross-examination. A writing may be used to revive recollection of a witness’s personal knowledge even though made by someone else. Sowders v. Coleman, 223 Ky. 633, 4 S.W.2d 731, 732 (1928). This is true even if the writing was made sometime ago and could not be introduced into evidence. Commonwealth v. McGarvey, 158 Ky. -5- 570, 165 S.W. 973, 976 (1914). The trial judge has broad discretion in the production of evidence and his/her decision will not be disturbed absent a showing of abuse or prejudice. Estes v. Estes, Ky., 464 S.W.2d 813 (1971). We do not believe the trial court abused its discretion. Appellant contends she was prejudiced by the trial court’s exclusion of two witnesses on the day of trial. Paragraph two of the pretrial order (record p. 190) required a witness list at least ten days before trial, and paragraph six required all depositions to be completed fifteen days before trial. C. Edward Rice was going to be deposed by telephone or in person concerning a letter he had written. The trial court considered the letter hearsay and appellees wanted to confront the witness in person at any deposition. On the Thursday before the trial, the appellant scheduled the deposition for early the next day, Friday, which would have been two business days before trial. Clearly the deposition would have violated the pretrial order, and, thus, the trial court’s exclusion or suppression of a deposition filed outside the time allowed by pretrial order for the taking of discovery was justified. Gish v. Hale, Ky., 283 S.W.2d 202, 203 (1955) held that “[t]he suppression of a deposition on the ground that it was filed after the time fixed by rule or order is discretionary with the trial court.” We see no abuse of discretion concerning C. Edward Rice’s deposition. Shannon Cummings was a witness that the trial court would not allow to testify because she was disclosed on September 29, 1997, less than fifteen days before trial. -6- It is true that the judge gave fifteen days for exchanging witness lists, while the pretrial orders said ten days. However, that was harmless error since September 29, 1997 was eight days before trial and her disclosure was still untimely. Even though the beginning of the period fell on a Saturday, CR 6.01 would not have allowed the appellant less than ten days because only when the last day of the period is a Saturday or Sunday does the period run to Monday. If the entire period was less than seven days, we also would not count Saturdays and Sundays. Under CR 6.01, the witness list had to be served by September 26, 1997. Also, there is no testimony by avowal so we cannot say it was reversible error to exclude this witness. Frantz, Inc. v. Wagers, Ky., 488 S.W.2d 700 (1972); Sharp v. Sharp, Ky., 516 S.W.2d 875 (1974). Appellant’s final allegation of error is that the trial court erred in refusing to instruct the jury on punitive damages. In light of the defense jury verdict, this issue becomes moot. For the foregoing reasons, the judgment of the Jefferson Circuit Court is affirmed. COMBS, JUDGE, CONCURS. DYCHE, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: BRIEF FOR APPELLEES: Jonathan C. Hardy Louisville, Kentucky Mark A. Smedal Louisville, Kentucky Virginia M. O’Leary Oakland City, Indiana -7- -8-

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