FLICK (MICHAEL J.) VS. LAMBIRTH (RANDALL C.)
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RENDERED: NOVEMBER 24, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001679-MR
MICHAEL J. FLICK
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL, JUDGE
ACTION NO. 06-CI-02088
RANDALL C. LAMBIRTH
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: KELLER AND THOMPSON, JUDGES; SHAKE,1 SENIOR JUDGE.
KELLER, JUDGE: Michael J. Flick (Flick) appeals from the trial court’s judgment
confirming a jury verdict and award in favor of Randall C. Lambirth (Lambirth).
Flick argues that the court did not notify him of the correct trial date and that the
court improperly admitted evidence at trial. Lambirth argues that Flick did not
1
Senior Judge Ann O’Malley Shake sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
raise these issues before the trial court; that he essentially did nothing to defend
himself from Lambirth’s allegations; and that he is therefore foreclosed from doing
so on appeal. For the following reasons, we affirm.
FACTS
We take the following underlying facts from the Supreme Court of
Kentucky’s opinion affirming Flick’s conviction and sentence.
In 2003, Randall Lambirth contacted [Flick] about
purchasing [Flick’s] optometry practice in Lexington.
[Flick] decided that he would sell his practice, and the
two men reached an agreement. The arrangement
contained a three (3) year employment contract for
[Flick], which, upon its end, would complete the sale.
The employment contract called for [Flick] to work four
(4) days a week, Wednesday through Saturday, for
Lambirth.
In early 2004, the relationship between Lambirth and
[Flick] began to deteriorate. [Flick] did not agree with
how Lambirth was running the practice and regularly
argued with him. Christina Wittich, Lambirth's girlfriend
and [Flick’s] co-worker, confronted [Flick] in the parking
lot one afternoon, as he tried to leave for lunch with a
lobby full of patients. By the summer of 2004, [Flick]
said he was “burned out” with work.
During this time, [Flick] asked Lambirth if he could have
Saturdays off because his father was ill; Lambirth
acquiesced to his request. However, shortly after letting
[Flick] take off Saturdays, Lambirth discovered that
[Flick] was actually working at an optical center in a
local Wal-Mart on those days. Lambirth confronted
[Flick] and told him he had to come back to work for him
on Saturdays or he would be fired. [Flick] refused to
come back. On November 17, 2004, Lambirth fired
[Flick]. By the end of March 2005, [Flick] had filed a
wrongful termination and breach of contract lawsuit
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against Lambirth. The two men would not see each other
again until May 20, 2005.
On May 20, 2005, [Flick] drove to Lambirth's house.
Before exiting his vehicle, he grabbed a gun, which he
had stolen from a friend. Upon entering the house, [Flick]
shot and killed Christina Wittich. Shortly thereafter,
Lambirth returned home accompanied by his brother. He
went into the house and discovered Christina lying in a
pool of blood. At this point [Flick] approached him with
the gun. Lambirth tried to get away, but [Flick] shot him
in the arm. A struggle ensued between the two men, at
which time Lambirth's brother, Chris, entered the house
and assisted Lambirth. The two men subdued [Flick] by
holding him down and beating him. During the
altercation, Lambirth was able to call the police.
Lambirth and Christina were taken to the University of
Kentucky medical center where Christina was
pronounced dead; Lambirth was treated for his wounds.
[Flick] was also transported to the medical center for
treatment of his injuries, which consisted of various cuts
and bruises, one of which required stitches. [Flick’s]
injuries, however, were non-life threatening and he was
awake and aware of what was happening while in the
emergency room. He was evaluated for his level of
consciousness and received the highest possible score.
[Flick’s] x-rays, ultrasounds, and CAT scans were all
normal.
Officer Ben Shirley of the Lexington Police Department
accompanied [Flick] from the crime scene to the hospital.
Officer Shirley attempted to read [Flick] his Miranda
warnings while en route to the hospital but stopped
because he feared that [Flick] would not hear him, or
would be confused because of all of the commotion in
the ambulance. Once at the hospital, Officer Shirley read
[Flick] his Miranda warnings at approximately 8:20 p.m.
[Flick] was conscious and told the officer that he
understood the warnings by answering, “yes.” Following
this, Officer Shirley proceeded to ask basic booking
information questions, which [Flick] had no trouble
answering.
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Later, Detective Brotherton arrived at the hospital to
question [Flick] about the events that had taken place.
Brotherton did not re-Mirandize [Flick] because Officer
Shirley had already informed him of his rights. [Flick]
was able to talk with Detective Brotherton for some time
and, in the process, was able to develop an elaborate
kidnapping story. [Flick] told Brotherton that Lambirth
and his brother kidnapped him and had taken him to
Lambirth's house that night. However, Detective
Brotherton did not believe [Flick] because he could not
keep his story straight. When Detective Brotherton told
[Flick] that he did not believe his story, [Flick] invoked
his right to remain silent, which Brotherton honored,
immediately ceasing the interview. Later, [Flick] was
transferred to Fayette County Detention Center.
The next morning, Detective Brotherton went to the
detention center to talk with [Flick]. A few hours earlier,
[Flick] had returned to the detention center from the
hospital after experiencing a bad reaction to medicine he
was given. Detective Brotherton testified that [Flick] did
not appear to be sleepy, confused, or disoriented. [Flick]
told Brotherton that he did not remember him or the prior
conversation from the hospital. After a few questions,
[Flick] invoked his right to counsel. Detective Brotherton
acceded to his request. Without further questioning from
Brotherton, [Flick] continued to briefly speak, indicating
that he did not want to say anything incriminating.
Eventually, [Flick] again invoked his right to counsel and
the interview stopped.
At trial, [Flick] moved to suppress all statements made to
Detective Brotherton because of alleged Miranda
violations. The trial court held a suppression hearing at
which written memoranda of law were submitted by both
parties. On March 13, 2007, the trial court denied
[Flick’s] motion to suppress the statements. The court
made several findings of fact, to wit: 1) Officer Ben
Shirley fully advised [Flick] of his Miranda warnings
while at the hospital; 2) [Flick] indicated that he
understood his rights by answering in the affirmative; 3)
[Flick] was fully coherent at the hospital; 4) [Flick] was
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able to provide Officer Shirley with accurate information
that constituted appropriate responses to the questions; 5)
nothing in the evidence suggested that [Flick] was
incompetent due to mental illness; 6) fifteen (15) hours
passed between the two interviews; and 7) there was no
testimony that would have demonstrated that [Flick] was
incoherent during the second interview.
At trial, [Flick] based his defense upon the presence of
Extreme Emotional Disturbance (EED). Each side
presented its evidence either for or against the existence
of EED. At the conclusion of the Commonwealth's case,
[Flick] made a motion for directed verdict arguing that a
reasonable jury could not find the absence of EED. The
trial court overruled the motion.
Ultimately, [Flick] was convicted of murder, seconddegree assault under EED and first-degree burglary. He
was sentenced to life imprisonment for the murder
conviction, five (5) years for the assault conviction, and
ten (10) years for the burglary conviction.
Flick v. Commonwealth, 2008-SC-000233, 2009 WL 1451923, *1 -3 (Ky. 2009).
While the criminal case against Flick was pending, Lambirth filed a
civil suit against Flick seeking compensatory and punitive damages. In his
complaint, filed on May 16, 2006, Lambirth alleged that Flick negligently and/or
intentionally shot him and shot and killed Wittich. Lambirth alleged that, as a
result of Flick’s actions, he suffered physical and emotional injuries and lost
income. He also alleged that he incurred medical expenses.
On May 30, 2006, Flick, who was then represented by counsel, filed
an answer directly denying or denying for lack of knowledge the allegations in
Lambirth’s complaint. Flick did not assert any affirmative defenses other than that
the complaint failed to state a claim upon which relief could be granted. In July
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2007, the court issued a notice that Lambirth’s claim would be dismissed for lack
of prosecution. In response to that notice, Lambirth filed a motion to hold the civil
case in abeyance pending resolution of the criminal case. The court granted that
motion and no further action took place in the civil case until February 2007.
In February 2007, Lambirth filed a motion for summary judgment as
to liability. In support of his motion, Lambirth asserted that Flick admitted his
guilt during the criminal trial and only offered evidence in an attempt to mitigate
his sentence. Flick’s counsel then filed a motion for additional time to respond to
the motion, noting that Flick was imprisoned and that he had lost contact with
Flick.
In March 2009, Flick’s counsel moved to withdraw noting that Flick
was serving a life sentence and was not able to pay counsel’s fees. On April 23,
2009, the court granted counsel’s motion to withdraw and gave Flick until May 22,
2009, to obtain new counsel and to respond to the motion for summary judgment.
Flick did not respond to this order.
Lambirth then made a motion for default judgment and renewed his
motion for summary judgment. Again, Flick did not respond. The court granted
Lambirth’s motion for summary judgment on June 8, 2009, and scheduled a pretrial conference for June 15, 2009. Following that conference, the court issued an
order setting deadlines for the submission of witness lists, exhibit lists, discovery,
etc., and scheduling the trial for July 28, 2009. Apparently, because Flick had not
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responded to any of the court’s orders or to Lambirth’s motions, the court
appointed a guardian ad litem (GAL) for Flick.
The GAL filed a report with the court on July 10, 2009, indicating that
she had written to Flick on June 23, 2009, advising Flick that she had been
appointed to determine if he had any defenses but not to represent him. Flick did
not respond to that correspondence. The GAL sent a second letter on July 5, 2009,
advising Flick that a discovery deadline was approaching and that he should retain
counsel if he intended to “present a defense in excess of that presented in the report
of the guardian ad litem.”
On July 10, 2009, Flick responded to the GAL, indicating that he
intended to file a counter-claim against Lambirth asserting breach of contract and
wrongful termination.2 Flick asked the GAL to include in her report the following:
Lambirth created a hostile work environment after Flick sold the business to
Lambirth in order to induce Flick and his staff to quit; Lambirth “did what he could
each day to torment Flick at work in hopes that he would quit so Lambirth would
not have to pay Flick in full for the practice;” Lambirth’s behavior lead to Flick’s
depression and attempted suicide; and Flick was wrongfully terminated. The GAL
also submitted a witness list on behalf of Flick, asked the court to continue the trial
so that Flick could obtain counsel or proceed pro se, and asked to be released as
GAL. The court released the GAL but did not address any of the other requests.
2
We note that, based on the record, Flick had filed a civil suit against Lambirth prior to the
shooting. However, Flick did not pursue his civil suit and the court dismissed for failure to
prosecute.
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On July 27, 2009, the court entered an order rescheduling the trial for
August 9, 2009. We note, as did the parties, that August 9, 2009, was a Sunday.
Flick states in his brief that his brother advised him that trial would not start on
Sunday. Based on that assurance from his brother, Flick assumed the court would
send an order with the correct date. However, Flick did not file any motion with
the court or otherwise request clarification. Counsel for Lambirth states that he
notified the court of the mistaken date and was assured that a revised order would
be issued. However, no such order is in the record.
On August 10, 2009, Lambirth tried this matter to a jury. Flick was
not present in person or through any representative. Following the presentation of
evidence, the jury returned a verdict in favor of Lambirth and awarded him in
excess of $11,000,000 in damages. That amount included $10,000,000 in punitive
damages. Without seeking any other post-judgment relief, Flick filed a notice of
appeal arguing that he was not given appropriate notice of the trial date and that the
trial court erred in admitting testimony and exhibits that were not identified in
compliance with the court’s pre-trial order and that were only related to Wittich’s
death.
STANDARD OF REVIEW
Although Flick does not clearly state it, the issues he raises appear to
be ones of law, which we review de novo. Carroll v. Meredith, 59 S.W.3d 484,
489 (Ky. App. 2001).
ANALYSIS
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We first address Flick’s argument that the court’s failure to notify him
of the correct trial date violated his right to a trial under the Sixth Amendment of
the United States Constitution. That argument is without merit because the Sixth
Amendment applies only to criminal prosecutions, not to civil trials.
We next address Flick’s argument that the court’s failure to notify him
of the correct trial date violated his right to present defenses under Kentucky
Revised Statutes (KRS) 411.010. That statute provides that
[i]n any civil action for damages inflicted by an assault or
by an assault and battery, the defendant may plead as a
defense to the claim for punitive damages, and introduce
in evidence in mitigation of punitive damages, any matter
of provocation that preceded the assault or battery, if the
provocation prompted the assault or battery and was of a
nature to cause a person of ordinary prudence and
judgment to take the action taken by the defendant.
In her report to the court, the GAL stated that Flick wished to assert a
number of defenses, some of which would arguably fall within the defenses to
assault and battery permitted under KRS 411.010. However, a party is required to
assert any affirmative defenses in a “pleading to a preceding pleading.” Kentucky
Rules of Civil Procedure (CR) 8.03. Furthermore, a party is required to assert
“[e]very defense, in law or fact,” in response to any pleading that requires a
response. CR 12.02. Flick did not assert the affirmative defense of provocation set
forth in KRS 411.010 in his response to Lambirth’s complaint or at any other time
until the GAL filed her report. Therefore, to the extent Flick’s defenses to
Lambirth’s claim for punitive damages were valid, they were not timely asserted,
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and would not have been proper for jury consideration. See Gargotto v. Isenberg,
244 Ky. 493, 51 S.W.2d 443, 445 (1932). Because the defenses he asserted were
not available to Flick, whether he received notice of the trial is of no consequence.
Next we address Flick’s claim that the trial court admitted evidence in
violation of KRS 411.130, 411.133, and Section 241 of the Kentucky Constitution.
Section 241 of the Kentucky Constitution and KRS 411.130 provide for the
prosecution of wrongful death claims by the administrator of a decedent’s estate.
KRS 411.133 provides for the joinder of wrongful death claims and personal injury
actions. Flick argues that Lambirth was permitted to enter evidence and to seek
damages related to a wrongful death claim that properly belonged to Wittich’s
estate. However, that is not the case. In his complaint, Lambirth alleged that Flick
intentionally or negligently injured him and he claimed damages related to those
injuries. Lambirth did not claim damages directly related to Wittich’s death; the
jury instructions did not refer to any wrongful death claim by Wittich; and the
damages awarded to Lambirth were related to his injuries only. Therefore, Flick’s
argument regarding this issue is without merit.
Furthermore, we note that, once he received a copy of the judgment,
Flick should have sought relief from the trial court under CR 59 via a motion for a
new trial or under CR 60 via a motion for relief from judgment. He did not choose
either route. Because Flick did not seek a ruling from the trial court on the issues
raised herein, “there is no alleged error for this court to review.” Kaplon v.
Chase, 690 S.W.2d 761, 763 (Ky. App. 1985).
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We also note that Flick did not make objection to, move to strike, or
otherwise bring to the attention of the trial court the fact that some of Lambirth’s
witnesses and exhibits were not timely identified. As noted above, Flick had a
duty to obtain a ruling from the trial court before presenting these issues to us.
This he did not attempt to do; therefore, they are not preserved for our review.
Finally, we note that, because this was a civil action, Flick was not
entitled to counsel. May v. Coleman, 945 S.W.2d 426, 427 (Ky. 1997). Although
he was not entitled to counsel, a prisoner is entitled to a GAL “[i]f for any reason
the prisoner fails or is unable to defend an action . . .” CR 17.04(1). The court
appointed a GAL for Flick and the GAL, as required by CR 17.04(1), reported to
the court the defenses Flick stated he wanted to assert. Although we believe that it
might have been preferable for the court to have appointed a GAL for Flick earlier
so that Flick would have had a better opportunity to present any defenses, because
Flick had no defenses available to him, an earlier appointment would not have
made any difference.
CONCLUSION
For the foregoing reasons, we affirm the trial court.
THOMPSON, JUDGE, CONCURS.
SHAKE, SENIOR JUDGE, CONCURS IN RESULT ONLY.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael J. Flick, Pro Se
West Liberty, Kentucky
T. Bruce Simpson, Jr.
Ryan Colleen Daugherty
Lexington, Kentucky
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