HARSTAD (MICHAEL J.) VS. WHITEMAN (RAY), ET AL.
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Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000190-MR
MICHAEL J. HARSTAD
v.
APPELLANT
APPEAL FROM JESSAMINE CIRCUIT COURT
HONORABLE C. HUNTER DAUGHERTY, JUDGE
ACTION NO. 04-CI-00912
RAY WHITEMAN AND
SHELBY THACKER
AND
APPELLEES
NO. 2009-CA-000194-MR
MICHAEL J. HARSTAD
v.
APPELLANT
APPEAL FROM JESSAMINE CIRCUIT COURT
HONORABLE C. HUNTER DAUGHERTY, JUDGE
ACTION NO. 06-CI-00474
VERNA LOWE
AND
MICHAEL J. HARSTAD
APPELLEE
NO. 2009-CA-001045-MR
APPELLANT
v.
APPEAL FROM JESSAMINE CIRCUIT COURT
HONORABLE C. HUNTER DAUGHERTY, JUDGE
ACTION NO. 04-CI-00474
ASBURY COLLEGE, A KENTUCKY
NONPROFIT CORPORATION
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, VANMETER, AND WINE, JUDGES.
ACREE, JUDGE: Appellant, Michael Harstad, brings three appeals from separate
Jessamine Circuit Court judgments relating to termination of his employment with
appellee Asbury College. The first and second appeals challenge summary
judgments for appellees Ray Whiteman, Shelby Thacker, and Verna Lowe on
Harstad’s claims of defamation and tortious interference with contractual relations.
In the third appeal, Harstad claims reversible trial errors resulted in the jury verdict
for Asbury on his breach of contract claim. We have consolidated these cases for
the convenience of the Court and, after careful review, we affirm in all cases.
Facts and Procedure
Michael Harstad was a tenured professor of ancient languages at
Asbury College. Asbury is a Christian college that imposes high moral and ethical
standards on both its students and faculty to ensure fulfillment of its mission and
excludes those who are unwilling to meet those standards and expectations
2
established by the college. Asbury’s faculty manual sets out in detail its
expectations for the faculty.
In addition to Asbury’s mission statement, purpose statement, and statement
of faith, the manual describes various activities deemed inappropriate and
inconsistent with the college’s mission. Relevant to this case, the manual states
that a faculty member may be terminated as a result of behavior constituting or
causing the perception of a dating or amorous relationship with a student.
In December of 2003, Asbury undergraduate students Ben Logan and Coral
Kraayveld approached appellee Shelby Thacker, head of the language department
in which Harstad was a professor, to express their concerns about Harstad. Among
other complaints, they first told Thacker that they were unable to gain needed
access to their professor because a graduate student, Janet Reichmuth, had become
his constant companion. According to Logan and Kraayveld, Harstad had
empowered her to correct their work, to sit in on their classes, and to permit or
prohibit their access to the college’s tutoring center.
After consulting Asbury’s provost, appellee Ray Whiteman, Thacker wrote
Harstad on January 5, 2004, seeking a meeting. Specifically stating that the
correspondence was “not one of accusation[,]” Thacker was “alerting [Harstad] to
the fact that your students’ perception of events, given the seriousness of the
complaints, must be addressed.” Without identifying the students, Thacker’s letter
repeated their complaints, including “perhaps the most serious, the belief that your
relationship with Miss Reichmuth has transcended the normal boundaries of a
3
student-professor relationship.” According to Thacker, “[t]he students spoke in
great detail, provided numerous examples, and were quite convincing.”
Thacker and Harstad met to discuss Harstad’s behavior that was creating the
perception of an inappropriate professor-student relationship. Harstad
acknowledged a relationship with Reichmuth but denied that it was inappropriate,
demanded that Thacker reveal his accusers, and threatened retribution against
anyone who lied about him or his relationship with Reichmuth. Thacker refused to
identify the students; Harstad refused to alter his behavior. The meeting ended.
During the course of 2004, more reports of Harstad’s liaisons with
Reichmuth reached his superiors and would be the basis of his eventual
termination. Harstad ultimately admitted most of the reports, including: that he
and Reichmuth shared a cell-phone plan with sequential phone numbers; that the
couple took walks together three to four times each week; that he assisted her in
the lease of a vehicle, taught her to drive it and occasionally drove it himself; that
they spent three or four hours each week exercising together; that they often dined
and shopped together off campus; that they selected movies from a video rental
store and watched them together; that they exchanged gifts; that they sent a joint
congratulatory gift to a mutual friend who had completed her dissertation; and that
he assisted Reichmuth with housework. Additionally, the record shows Harstad
was observed entering Reichmuth’s apartment late at night more than once; his
vehicle was frequently seen parked there; and several times the couple was
observed shopping or having breakfast, lunch or dinner together.
4
The record also shows that at least five people reported observing physical
contact between Harstad and Reichmuth. Most gave their sworn testimony to that
effect. Faculty members Bonnie Banker and students Rachel Barrett and Coral
Kraayveld reported seeing Harstad and Reichmuth holding hands. Faculty member
and appellee Verna Lowe reported seeing them holding hands and also reported
seeing them together at a department store shopping for videos when Harstad,
standing behind Reichmuth, appeared to place his chin on her shoulder. Student
Cody Kerr reported seeing them kiss. While Harstad denies any physical contact
with Reichmuth, he does not deny such reports were made.
On November 18, 2004, based on these reports, Whiteman wrote a letter to
Harstad focusing on the fact that, despite being informed of the college’s concerns,
Harstad continued to be “quite open in spending a considerable amount of time
with Janet in public and spending time in her apartment.” He noted that “[s]ome
faculty, students and staff persons have expressed concern about the nature of this
relationship[, and students] are asking why you are being allowed to violate
community life standards.” Emphasizing the perception of an improper
relationship created by Harstad’s behavior, Whiteman reminded Harstad that “the
‘appearance’ of incorrect behavior can be as critical as actual behavior in such
situations.” He concluded that Harstad was “very clearly giving the appearance of
behavior which is contrary to community life expectations, particularly when you
are still legally married to another person.”1
1
Harstad was in the process of divorce.
5
Whiteman’s letter went on to remind Harstad of the high expectations of
personal behavior to be modeled by faculty. He stated, “I am saddened that you
have chosen to disregard these expectations[, ]but the situation cannot continue.
You will note that while I have indicated that you have broken community life
expectations which can result in termination, I have not actually indicated that you
are being terminated.” Instead, Whiteman asked Harstad to meet with the
language department head, Shelby Thacker.
On November 22, 2004, Harstad did meet with Thacker. Thacker’s
November 30, 2004 memorandum of the meeting indicates Harstad again denied
an inappropriate relationship existed and refused to change his conduct to
counteract the perception that one did exist. Again, Harstad demanded to know
which students and faculty members were complaining, but Thacker declined to
answer. Harstad asked Thacker to prepare an account of their meeting and provide
it to him and to Whiteman before 4:00 p.m. that day. According to the meeting
memorandum, when Thacker said he could not make that deadline, Harstad
responded that “there would be problems for me [Thacker].”
At 4:00 p.m. that day, Whiteman received a letter via his office fax machine
from Harstad’s attorney. Prior to his meeting with Thacker, Harstad had contacted
his brother’s Chicago law firm and retained legal representation. The letter from
that attorney demanded “the names of the persons claiming to have knowledge of
the alleged improprieties so that we may contact them and ask some questions.”
Because the students involved feared retribution, and because Harstad had
6
promised retribution, the college decided not to disclose the witnesses’ identities.
The letter further stated, “Should you decide to proceed however, you should
expect that we will immediately seek the intervention of the Courts, and vigorously
pursue all legal and equitable remedies available to Dr. Harstad against both
Asbury College and all individuals involved.”
Whiteman did not respond to the attorney. Instead, after receiving Thacker’s
November 30, 2004 memorandum outlining the meeting, he wrote again to
Harstad. He urged Harstad to meet personally with him and Asbury’s president,
Paul Rader, either on December 9 or 10, 2004. Harstad declined to do so.
On December 30, 2004, Harstad filed the first of his legal actions, seeking
an injunction in the Jessamine Circuit Court to prevent any adverse employment
action by Asbury. Harstad also claimed intentional interference with his
employment contract. The court declined to grant the injunction by an order
entered on January 29, 2005.
On February 23, 2005, Whiteman contacted Harstad again and notified him
that he was being terminated. Harstad believed the termination was improper and
continued to deny the allegations against him.
In accordance with administrative protocol, Harstad appealed his termination
to a faculty appeals committee on two grounds. He asserted first that the
relationship between himself and Reichmuth was not inappropriate under Asbury’s
standards and, second, that the college had failed to provide him with adequate
notice of his termination as required in the faculty handbook.
7
The faculty appeals committee was authorized to make a report and
recommendations to Asbury’s president, but only the president could make the
final decision regarding termination. The committee’s report was indecisive.
Regarding the propriety of the relationship between Harstad and Reichmuth, the
report stated only that “due to the accepted and encouraged practice of faculty
mentoring, the amount of time that Dr. Harstad and Ms. Reichmuth spent together
may or may not be a significant indication of a relationship that has progressed
beyond that of teacher/student.” Noting the high degree of certainty it sought, the
committee stated that it “cannot decisively say that the circumstantial evidence
presented to it irrefutably indicates a dating and/or romantic relationship.” This
indecision was not, however, a consequence of witness credibility determinations.
The committee expressly stated “that its judgment on the above allegations should
not be misconstrued as a negative reflection on the credibility of those from whom
it received testimony.”
Regarding Harstad’s second ground, the committee was more decisive and
concluded that, to the extent the college failed to give Harstad adequate notice of
his termination, the failure was reasonable in light of the court action he initiated
interrupting the college’s normal procedures.
The committee’s indecision notwithstanding and as noted above, the faculty
handbook authorized Asbury’s president to make the final determination regarding
termination. By letter dated June 28, 2005, to the chairman of the faculty appeals
committee and copied to Harstad, President Rader concluded that Harstad’s
8
“behavior perceived as indicating an inappropriate relationship is unacceptable”;
he decided that the “decision to terminate will stand.” As a result, Harstad
continued to pursue his legal claims against Asbury and various members of its
faculty; he then initiated the separate suit against Verna Lowe.
Harstad’s first complaint alleged that Whiteman and Thacker defamed him
and intentionally interfered with his employment contract by making false
statements regarding his relationship with Reichmuth. The complaint further
alleged that Asbury College breached his employment contract by terminating him.
In his separate complaint against Lowe, Harstad alleged defamation and intentional
interference with his employment contract.
While the procedural history of this case before the circuit court is somewhat
complex, only a brief summary is necessary for purposes of this appeal. Harstad’s
claims of defamation and intentional interference with his employment contract
against Whiteman, Thacker, and Lowe were dismissed by summary judgment.
The breach of contract claim against Asbury was the only issue to proceed to trial.
Asbury prevailed on this claim, the jury having found that the college did not
terminate Harstad without cause under the terms of the faculty handbook. Harstad
did not move for a new trial postverdict.
On appeal, Harstad argues that the circuit court improperly granted summary
judgment as to his defamation and intentional interference claims. With regard to
the trial, Harstad argues that the circuit court improperly excluded evidence that
9
other faculty members were treated differently under similar circumstances, and
that additional jury instructions should have been provided.
Summary Judgment Issues
The circuit court’s decision to grant summary judgment is reviewed de novo.
Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001). “The standard of
review on appeal of a summary judgment is whether the trial court correctly found
that there were no genuine issues as to any material fact and that the moving party
was entitled to judgment as a matter of law.” Scifres v. Kraft, 916 S.W.2d 779,
781 (Ky. App. 1996). “The record must be viewed in a light most favorable to the
party opposing the motion for summary judgment and all doubts are to be resolved
in his favor.” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480
(Ky. 1991). “The party opposing a properly presented summary judgment motion
cannot defeat it without presenting at least some affirmative evidence showing the
existence of a genuine issue of material fact for trial.” City of Florence, Kentucky
v. Chipman, 38 S.W.3d 387, 390 (Ky. 2001). With this standard as our guide, we
review the summary judgments entered prior to trial.
The Defamation Claims
The essential elements of defamation are: “(a) a false and defamatory
statement concerning another; (b) an unprivileged publication to a third party; (c)
fault amounting at least to negligence on the part of the publisher; and (d) either
actionability of the statement irrespective of special harm or the existence of
special harm caused by the publication.” Restatement (Second) of Torts § 558
10
(1977). When the communication concerns untrue allegations of criminal behavior
or unfitness to perform a job, the communication is libelous per se or slanderous
per se, and proof of context indicating malice is not required. “Although the law
presumes malice where publications are slanderous per se, yet where the
publication is made under circumstance disclosing qualified privileges, it is
relieved of that presumption and the burden is on the plaintiff to prove actual
malice.” Weinstein v. Rhorer, 240 Ky. 679, 42 S.W.2d 892, 895 (1931); see also
Columbia Sussex Corp., Inc. v. Hay, 627 S.W.2d 270, 273 (Ky. App. 1981) (setting
out elements of defamation).
Harstad identifies as defamatory language a total of eleven (11) statements.2
These statements fairly fall into four categories and, by representative example
taken from his complaints, they are that Harstad: (1) “was seen involved in
physical touching with a female student, both on and off campus”; (2) “was giving
the appearance of behavior which is contrary to community life expectations”; (3)
“was terminated . . . for one or more of the reasons” related to behavior that created
such an appearance; and (4) “was having an affair with a female student[.]” For
purposes of review, we presume each of the eleven specific statements was
expressed by the defendants to whom Harstad attributes them.
The basis of the circuit court’s summary judgment was that all the allegedly
defamatory statements were subject to a qualified privilege. Citing Landrum v.
2
According to the two complaints in the respective lawsuits, nine (9) of these statements were
uttered by Whiteman, Thacker or unknown defendants and two (2) were uttered by Verna Lowe.
All of the statements were made by Asbury employees in the course of investigating complaints
from students and others about Harstad and his role as an Asbury professor.
11
Braun, 978 S.W.2d 756 (Ky. App. 1998), the circuit court determined that the
“statements that Harstad alleges are defamatory were made within the context of
the employment relationship and are qualifiedly privileged.” We agree.
“The determination of the existence of privilege is a matter of law.”
Columbia Sussex, 627 S.W.2d at 276.3 Once a privilege has been placed in issue,
“it thereupon falls upon plaintiff to defeat this defense by a showing that either
there was no privilege under the circumstances or that it had been abused.” Id. If
the plaintiff fails to adduce such evidence sufficient to create a genuine issue of
fact, qualified privilege remains purely a question of law under the summary
judgment standard. Cargill v. Greater Salem Baptist Church, 215 S.W.3d 63, 68
(Ky. App. 2006) (“Although the jury normally determines whether a privilege was
abused, a motion for summary judgment is appropriate when the record shows no
facts which would lead to the conclusion that the Appellees acted with malice.”).
The circuit court’s summary judgment in this case recognizes these concepts and
this analytical procedure.
In two separate judgments, both entered on January 9, 2009, and in the
absence of any contrary contention by Harstad, the circuit court found no factual
dispute.
3
We are aware of the nonfinal Kentucky Supreme Court opinion, Calor v. Ashland Hosp. Corp.,
--- S.W.3d ----, 2010 WL 3374251 (Ky. 2010), clarifying that Landrum v. Braun should not
“have indicated that all questions related to the qualified privileges are matters of law and
therefore decidable only by a court.” Id. at *7 fn. 3. However, Calor reaffirms the holdings in
Columbia Sussex and Cargill v. Greater Salem Baptist Church, 215 S.W.3d 63 (Ky. App. 2006),
upon which our analysis relies.
12
Lowe’s statements were made at the Provost’s request for
the purpose of enabling the Provost, the President, and
the Faculty Appeals Committee to evaluate Harstad’s
professional performance and the decision to terminate
Harstad’s employment. . . . The statements at issue [in
the separate suit against Asbury, Whiteman, and
Thacker] were made between Asbury College’s Provost
at the time, Ray Whiteman, Plaintiff’s department chair
and immediate supervisor, Shelby Thacker, and the
Faculty Appeals Committee, for the purposes of
evaluating Plaintiff’s professional performance and
evaluating the decision to terminate Plaintiff’s
employment.
(Order and Judgment, January 9, 2009). Based on these undisputed facts, the
circuit court properly concluded as a matter of law that “the statements that
Harstad alleges are defamatory were made within the context of the employment
relationship and are qualifiedly privileged.”
Citing Frentz v. SHPS, Inc., 2006 WL 3457210 (Ky. App. 2006) (2005-CA001744),4 the circuit court next correctly concluded that Harstad had a burden to
carry to avoid summary judgment – presenting evidence sufficient to create a
genuine issue that the privilege had been abused or waived by actual malice.
Cargill, 215 S.W.3d at 68. The circuit court clearly demonstrated its focus on this
issue in the hearing on the motions for summary judgment. There, the circuit court
asked Harstad’s counsel, “What is it that’s in the record at this point that would
carry the plaintiff’s burden in showing that these individuals knowingly made false
statements about him and that they did so with actual malice?” Neither counsel’s
verbal response nor his written memorandum persuaded the circuit court that the
4
We cite Frentz here only because the circuit court did so and not in reliance on Kentucky Rules
of Civil Procedure (CR) 76.28(4)(c).
13
record contained evidence to create a genuine issue of material fact sufficient to
require presentation to a jury. We agree with the circuit court.
Abuse of the privilege occurs in a number of situations:
The privilege may be abused and its protection lost by [1]
the publisher’s knowledge or reckless disregard as to the
falsity of the defamatory matter; [2] by the publication of
the defamatory matter for some improper purpose; [3] by
excessive publication; or [4] by the publication of
defamatory matter not reasonably believed to be
necessary to accomplish the purpose for which the
occasion is privileged.
Restatement (Second) of Torts § 596 cmt. a (1977) (citing §§ 600-605A). We
agree with the circuit court that Harstad failed to present evidence sufficient to
create a genuine issue of material fact that any of these circumstances existed.
Before this Court, Harstad first argues the privilege should not apply
because the communications were not uttered in the usual and ordinary course of
Asbury’s business. This argument, it could be argued, falls under the second or
fourth situations described in the Restatement. However, Harstad created no
genuine issue of material fact regarding the abuse of the privilege.
Although Harstad’s response to the motions for summary judgment included
his own and Reichmuth’s affidavits, nothing in those affidavits placed any
evidentiary fact of the appellees’ abuse of the privilege in issue. On the contrary,
Harstad’s exhibits presented to the court reveal a faculty that relied on reports from
students, faculty, and staff who shared a duty to report perceived violations of
Asbury’s faculty manual. The record reflects that the actions of the defendants
14
were within the spirit and letter of the faculty manual, the only exception having
been occasioned by Harstad’s prior resort to a legal remedy.
Harstad argues, however, that “the individual defendants were part of a
‘subculture’ at Asbury that acted on its own to preserve and protect that
‘subculture’ as opposed to necessarily the interests of Asbury itself.” He also
asserts that “his termination was accomplished through lying, dishonesty, gossip,
rumor and slander” which he referred to as the “stock in trade for the Byzantine[-]
like political culture and machinations that take place at Asbury.” However, such
conclusions and conjectures are not sufficient to sustain his burden created by the
motions for summary judgment. His argument fails because “[c]onclusory
allegations based on suspicion and conjecture” are not sufficient to create an issue
of fact as to abuse of the privilege. Cargill, 215 S.W.3d at 69.
Harstad’s second argument falls under the first situation recognized by the
Restatement. If, before the circuit court, Harstad created a genuine issue of
material fact as to whether appellees uttered the defamatory statements either
knowing they were false or in reckless disregard for their truth or falsity, then
summary judgment would not have been proper; there would have been a jury
question as to whether the qualified privilege was abused and its protections lost.
Supporting his contention, Harstad points first to inconsistencies and
anachronisms in communications among the defendants and non-defendant
witnesses who provided information during the investigation. These inaccuracies
15
show, so goes the argument, that the statements were lies; one can then infer such
lies were uttered with malice. There are fatal flaws in this argument.
Closer examination of the alleged inconsistencies shows they are of slight
degree and little, if any, legal consequence. It is unreasonable to infer from these
inconsistencies alone that they were intentional or reckless misstatements.
For example, Harstad argues that Whiteman lied when he said Lowe
reported seeing actual physical contact between Harstad and Reichmuth during the
Wal-Mart incident which he characterized as “nuzzling.” In her deposition, Lowe
testified only to witnessing Harstad closely behind Reichmuth, looking over her
shoulder, without using the word “nuzzle,” but nonetheless in a manner that made
Lowe suspect an inappropriate teacher-student relationship.
Similarly,
Harstad alleges Whiteman and Thacker made reference to his
relationship with Reichmuth prior to actually receiving complaints from two
particular students. He asserts that such references, having preceded the students’
and others’ complaints, were necessarily lies fabricated by Whiteman and Thacker.
This inconsistent timeline, says Harstad, is proof of lying and malice. However, he
does not contend that these complaints were never made. In fact, there is ample
evidence in the record that they were made, and by more people than the two
students to whom Harstad refers. Indeed, several individuals stated in deposition
that they reported witnessing Reichmuth and Harstad spending a great deal of time
together, holding hands, and even kissing.
16
Harstad’s denials of any physical contact with Reichmuth may create an
issue of fact as to whether he actually held her hand in public, but that fact is not
material to the issue of malice here. The issue in Harstad’s case against Asbury,
Whiteman, and Thacker is whether such reports were made; there is no genuine
issue as to that material fact – such reports were made and to the proper authorities.
Lowe’s statements about Harstad’s hand-holding, in fact, may be untrue.
However, their falsity alone will not demonstrate abuse of the privilege that
attached when those statements were elicited from her by Asbury personnel. It
was Harstad’s burden to present some evidence that would incline a reasonable
person to believe that Lowe’s perception was not simply the product of mistaken
observation, but the result of malice, i.e., some evidence that Lowe knew she was
lying or making wholly unfounded statements without regard to their truth or
falsity. He presented no such evidence and, in deposition, even stated he had no
idea why Lowe, Whiteman, or Thacker would be motivated to lie.
Even were we to conclude that each of these inconsistencies was both
material and indicative of a specific falsehood, we could not reasonably conclude
from their falsity alone that they were malicious utterances as opposed to mistaken
observations. In other words, not every erroneous statement is expressed with
malice. As our highest court plainly stated, once a qualified privilege attaches,
even “false and defamatory statements will not give rise to a cause of action unless
maliciously uttered.” Stewart v. Williams, 309 Ky. 706, 708, 218 S.W.2d 948, 950
(1949) (emphasis supplied).
17
Harstad was required to do more than assert that these statements were false;
people are sometimes wrong without even suspecting it. It was therefore
incumbent upon Harstad to present some evidence that the respective defendants
uttered one or more of the statements Harstad found objectionable with
knowledge that [the statement] was false or with reckless
disregard of whether [the statement] was false or not. . . .
[R]eckless disregard is . . . a high degree of awareness of
. . . probable falsity, and . . . [w]here the publisher must
have entertained serious doubts as to the truth of his
publication.
Ball v. E.W. Scripps Co., 801 S.W.2d 684, 689 (Ky. 1990) (citations and
quotations omitted). He failed to do that.
This case provides a practical illustration of how the privilege works and
also its purpose in facilitating open, good faith communication between one person
who “has an interest, or in respect to which he has a duty, public, personal, or
private, either legal, judicial, political, moral, or social, [and another] person
having a corresponding interest or duty.” Tucker v. Kilgore, 388 S.W.2d 112, 11415 (Ky. 1965) (quoting 53 C.J.S. Libel and Slander § 89, pp. 143-44 (2010)). In
this case, witnesses, sometimes upon inquiry as with Lowe, told Asbury authorities
what they perceived. These perceptions were not without foundation. Harstad
never denied his close relationship and physical proximity to Reichmuth on the
occasions in question; he thereby contributed to the circumstances perceived by
witnesses and determined by Asbury administrators as improper conduct under the
school’s employment standards.
18
In a final argument, Harstad urges us to reject the qualified privilege analysis
in favor of the intra-corporate immunity analysis in Biber v. Duplicator Sales &
Service, Inc., 155 S.W.3d 732 (Ky. App. 2004). However, this case does not offer
such a choice. Harstad confuses the qualified privilege applicable here and the
absolute privilege of the intra-corporate immunity rule. The latter rule is premised
on the legal fiction that there is no publication of statements when the
communication is intra-corporate, i.e., between or among corporate agents or
employees. Biber, 155 S.W.3d at 736. There is no such presumption with the
qualified privilege which Biber itself distinguished from the intra-corporate
immunity rule. Id. at 737 (“Kentucky has recognized only a qualified privilege and
would reject the intra-corporate immunity rule.”). Biber is inapplicable.
Because Harstad failed to adduce evidence sufficient to create a genuine
issue that the qualified privilege was abused or waived, i.e., not “exercised in a
reasonable manner and for a proper purpose[,]” Stringer v. Wal-Mart Stores, Inc.,
151 S.W.3d 781, 797 (Ky. 2004), summary judgment was properly entered.
The Tortious Interference Claims
The circuit court granted summary judgment on the claim of tortious
interference because the claim requires interference and improper conduct by a
third party. Because that element is absent here, we agree with the circuit court.
Agents of a party to a contract who act within the scope of their employment
cannot interfere with that party’s contract. See Carmichael-Lynch-Nolan
Advertising Agency, Inc. v. Bennett & Associates, Inc., 561 S.W.2d 99, 102 (Ky.
19
App. 1977) (adopting Restatement (Second) of Torts, § 766 (1939)), requiring the
tortfeasor to be a third party, not a party to the contract or such party’s agent); see
also Leary v. Daescher, 186 F. Supp. 2d 774, 777 (W.D. Ky. 2001) (“no allegation
of interference with a third-party contract or relationship”). It was undisputed that
Whiteman, Thacker, and Lowe were employees of the college and acted as its
agents; they were not third parties. The appellees’ statements were made within
the scope of investigating a faculty member’s violation of the employer’s rules
and, therefore, are within the scope of their employment. Also, as previously
discussed, Harstad failed to establish any evidence of malice or improper purpose,
which is also a necessary element of the claim. See NCAA By and Through
Bellarmine College v. Hornung, 754 S.W.2d 855, 859 (Ky. 1988). Therefore, the
circuit court’s grant of summary judgment on the issue of tortious interference is
affirmed.
Trial Issues
Before addressing Harstad’s claims of trial error, we turn first to the
appellees’ argument that Harstad “irrevocably waived any right to [a new trial] by
declining to move the trial court for it.” This is the current federal rule. See
Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 404, 126 S. Ct.
980, 987, L. Ed. 2d 974 (2006) (“a party is not entitled to pursue a new trial on
appeal unless that party makes an appropriate postverdict motion in the [trial]
court”). It was also the rule in Kentucky under the old Civil Code governing
practice prior to adoption of the current Kentucky Rules of Civil Procedure (CR).
20
Norfolk & W. Ry. Co. v. Blevins, 310 Ky. 367, 369, 220 S.W.2d 825, 826 (1949)
(“Our decisions are numerous in support of the rule that any error occurring during
the trial must be incorporated in the motion for a new trial, otherwise this court
cannot consider it.”) (Citing Civil Code Practice §§ 340, 342; emphasis supplied).
Under the old Civil Code, a party who objected only during trial or made only a
preverdict motion failed to adequately preserve the issue for appellate review for
“it was also his duty to bring the alleged error to the attention of the trial court in
his motion and grounds for a new trial to the end that the court might have the
opportunity to correct any error in this regard of which he was convinced.”
Thompson’s Adm’r v. First Nat. Bank, 234 Ky. 252, 27 S.W.2d 978, 980 (1930)
(emphasis supplied). A preverdict objection not brought to the trial court’s
attention in a postverdict motion for new trial waived that objection. Victory Cab
Co. v. Watson, 238 S.W.2d 1004, 1006 (Ky. 1951)(“At the trial appellant saved
exception to the giving of instruction No. 2, but in his motion and grounds for a
new trial he only assigns the giving of instructions 3, 4 and 6 as error. He thereby
waived his exception to instruction No. 2.”).
However, when Kentucky’s high court adopted the current civil rules
in 1953, it proposed a significant change from prior practice; the Court added a
new rule, codified as CR 59.06, stating: “Allegations of error, otherwise properly
preserved, in respect to rulings, orders or instructions of the court need not be
presented in a motion for a new trial in order to be preserved for appellate review.”
CR 59.06. There is no corollary in the federal rules, but it binds us in Kentucky.
21
The original motivation prompting this deviation has been lost in time.
However, having reflected upon it in the context of similar rules of our sister
states,5 we conclude that CR 59.06 is the superior rule for two primary reasons.
First, CR 59.06 eliminates the harshness of the federal rule while retaining,
as an option for the litigant, the benefit of postverdict motions. Our rule eliminated
the trap of mandating every preverdict error be re-presented to the trial court
postverdict or be waived. At the same time, CR 59.06 does not prohibit a party
from asking the trial judge to reconsider any adverse rulings by means of a
postverdict motion. Doing so is often the better practice since it allows the trial
court a second reflection under less pressing circumstances than were attendant to
the issue when first raised. CR 59.06 merely leaves to the affected party the
decision whether such a course is merited.
Second, CR 59.06 retains the purpose of the federal rule by continuing the
requirement that the issue be preserved. That is the function of the qualifying
language that any errors not presented to the trial court in a postverdict motion
must have been “otherwise properly preserved.” CR 59.06 then does not mean
that a party need never again make a postverdict motion preliminary to taking an
appeal. We agree with our sister court that
5
Rules of our sister states vary. For example, Texas does not require a motion for new trial prior
to appellate review, but with several exceptions listed in the rule such as when the ground is that
the verdict was against the weight of the evidence. TX Rules of Civil Procedure, Rule 324.
Illinois requires the post-trial motion in cases tried before a jury, but not cases tried before the
court. Compare, ILCS S. Ct. Rule 366(b)(2)(iii), with ILCS S. Ct. Rule 366(b)(3)(ii). Other
states appear to follow the federal rule. See, e.g., Morin v. Brassington, 871 A.2d 844, 851
(Pa.Super. 2005) (“Generally speaking, failure to specify a ground for relief in a post-trial
motion renders the issue waived on appeal.”).
22
[c]ertain motions, such as challenges to verdicts on the
ground that they are against the great weight of the
evidence, must be raised in a motion for a new trial in
order to preserve them for appeal. [Citations omitted].
The purpose behind this rule is clear: if these issues were
not previously [to the appeal] raised in this manner, there
would be no record regarding them to review on appeal.
However, issues [such as] regarding the admission or
exclusion of evidence are properly preserved by a timely
objection on the record. . . .
....
A timely objection on the record, with a response by
opposing counsel and a ruling by the trial judge, should
create an adequate record from which to review the
admission or exclusion of evidence. There is no
additional requirement that a party restate his evidentiary
objections anew in his motion for a new trial.
Heshelman v. Lombardi, 454 N.W.2d 603, 608 (Mich. App. 1990).
Therefore, appellees’ argument here would sway us, even in light of CR
59.06, if Harstad argued only that the verdict was not sustained by the evidence.
But that is not his argument. He argues instead that the trial court erred by: (1)
failing to properly instruct the jury; and (2) excluding evidence of disparate
treatment. If these claims of error were “otherwise properly preserved,” CR 59.06
makes his failure to file a motion for a new trial irrelevant.
Harstad preserved both errors and substantially complied with CR
76.12(4)(c)(v)6 by referencing the record where such preservation may be found.
Therefore, we shall consider Harstad’s remaining arguments.
6
Technical compliance requires that the brief “shall contain at the beginning of the argument a
statement with reference to the record showing whether the issue was properly preserved for
review and, if so, in what manner.” CR 76.12(4)(c)(v) (emphases supplied).
23
Excluded Evidence of Disparate Treatment
“[A]buse of discretion is the proper standard of review of a trial court’s
evidentiary rulings.” Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575,
577 (Ky. 2000) (citations omitted). “The test for abuse of discretion is whether the
trial [court’s] decision was arbitrary, unreasonable, unfair, or unsupported by
sound legal principles.” Id. at 581.
We note first that Harstad did not assert a claim of disparate treatment in
which similarly situated employees were treated differently on the basis of class
protection. Therefore, we must consider whether the trial court was clearly
erroneous in rejecting such evidence on the basis that it was irrelevant to the
breach of contract claim. We conclude, as we have before in another employment
contract breach case, that “[e]vidence relating to other contracts would have been
irrelevant and confusing.” Humana, Inc. v. Fairchild, 603 S.W.2d 918, 921 (Ky.
App. 1980). Therefore, we find no abuse of discretion.
In his brief, Harstad argues alternatively that evidence of disparate treatment
“was material to the issue of good faith[.]” As appellees point out, Harstad did not
make this argument to the trial court but presents it here for the first time. Harstad
does not refute this in his reply brief. Consequently, we will not entertain this
argument “for the simple reason that on this appeal [an] altogether different theor[y
is] advanced for the first time why the lower court should have permitted this
evidence to be introduced.” Lewis v. Commonwealth, 318 S.W.2d 857, 859 (Ky.
1958).
24
The Proposed Jury Instructions
“Alleged errors regarding jury instructions are considered questions of law
that we examine under a de novo standard of review.” Hamilton v. CSX Transp.,
Inc., 208 S.W.3d 272, 275 (Ky. App. 2006).
Kentucky follows the “bare bones” rule of jury instructions and gives
latitude for attorneys to flesh out the details in their arguments. Cox v. Cooper,
510 S.W.2d 530, 535 (Ky. 1974). The trial court instructed the jury to answer the
following interrogatory:
Do you believe from the evidence that Defendant Asbury
College breached a contract with Plaintiff Michael
Harstad by terminating his employment without adequate
cause, for any of the reasons set forth in Asbury’s Faculty
Manual Sections 400.10.1B, 400.10.1C, or 400.10.1E?
The jury had a copy of the faculty manual, previously admitted into evidence, to
reference during deliberations. Harstad claims two additional jury instructions and
associated interrogatories, based on the manual, should have been provided.
First, Harstad wanted to set out in a jury instruction the portions of Asbury’s
faculty manual describing written termination procedures with an interrogatory
asking whether Asbury complied with them. However, portions of the proposed
instruction did not accurately reflect the faculty manual provisions; such portions
thus would not have been proper. Other portions of the proposed instruction, such
as the employment termination notice requirements, were accurately stated. While
we agree with Harstad that they would not have been improper, he does not explain
how their exclusion was erroneous.
25
Harstad argues that without his proposed instruction “the jury could only
conclude that the process followed by Asbury was correct[.]” But that is not so.
The instruction actually given allowed Harstad to argue to the jury, from evidence
he presented, that Asbury deviated from its own procedures and therefore breached
his employment agreement. The proposed instruction would only have given
“undue prominence” to this argument contrary to Kentucky’s “bare bones”
approach. Rogers v. Kasdan, 612 S.W.2d 133, 136 (Ky. 1981).
Harstad’s proposed instruction also states that the college owed him a duty
of good faith. However, the issue of good faith is subsumed by the question of
good cause which was submitted to the jury. That is, the jury could not have found
good cause without also finding good faith on Asbury’s part. Again, Harstad had
the opportunity to argue absence of good faith to the jury based on such evidence
he presented. The verdict demonstrates Harstad’s inability to persuade the jury
that his claim in that regard had merit.
The second proposed instruction would have set out Asbury’s policy on lies,
gossip, and slander. But as we noted previously, the policy manual was admitted
into evidence and available to jurors. Highlighting such evidence in an instruction,
again, only would have given undue prominence to evidence.
The interrogatory proposed in conjunction with this instruction would have
asked the jury whether Asbury used lies, gossip, and slander as a basis for
terminating him. Again, such a question was subsumed in the interrogatory that
26
was presented to the jury. If the jury believed Harstad’s claim of termination on
the basis of lies, gossip, and slander, the verdict would have been in his favor.
The sole issue in this case was whether Asbury breached its contract with
Harstad by terminating him without adequate cause. The instruction in this case
did that and satisfied the requirement that it “should provide only the bare bones,
which can be fleshed out by counsel in their closing arguments if they so desire.”
Bayless v. Boyer, 180 S.W.3d 439, 450 (Ky. 2005) (quoting Cox v. Cooper, 510
S.W.2d 530, 535 (Ky. 1974)). We find no error here.
Because we find no genuine issue of material fact regarding Harstad’s
claims of defamation and tortious interference with his contract, and because we
find no reversible errors committed by the trial court, the judgments of the
Jessamine Circuit Court are affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
John E. Reynolds
Nicholasville, Kentucky
Debra H. Dawahare
Leila G. O’Carra
Lexington, Kentucky
Cliff Harstad
Chicago, Illinois
Thomas K. Herren
Lexington, Kentucky
27
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