PAUL L. MILLS v. LYNN D. KENNEDY; ESTATE OF LYNN D. KENNEDY
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RENDERED: OCTOBER 20, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000325-MR
PAUL L. MILLS
APPELLANT
APPEAL FROM ROCKCASTLE CIRCUIT COURT
HONORABLE DANIEL J. VENTERS, JUDGE
ACTION NO. 97-CI-00051
v.
LYNN D. KENNEDY; ESTATE OF
LYNN D. KENNEDY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, HUDDLESTON, AND KNOPF, JUDGES.
DYCHE, JUDGE:
Paul L. Mills was involved in a car accident with
Lynn Kennedy1, and the issue of liability was decided by summary
judgment by the court prior to trial.
Following a trial on the
issue of damages, the jury returned a verdict of $0 for Mills.
He now appeals, alleging juror misconduct.
Finding no error, we
affirm.
Mills claims that Raymond Mason, a member of the jury
pool who had been excused from this case by the court for cause
but was required by the court to remain for the trial, made an
1
Kennedy succumbed to cancer prior to trial.
inappropriate comment in the presence of the jurors during a
break in the proceedings.
In an affidavit filed by the father of
Mills's counsel, who was in the hallway where the disputed
comment was made, Mason was alleged to have said that he would
not award Mills any money because it was not right to take money
from the deceased defendant's children.
Mason was questioned by
the trial court and denied making the statement.
Mills's counsel
declined to question the jurors about the remark when the court
offered that opportunity.
The trial court did not admonish the jury specifically
about the statement, and the jury returned a unanimous verdict.
Mills argues that it was error for the trial court to fail to
give the promised admonition, and claims that the jury was
tainted by the remark.
After examining the portions of the
transcript designated by Mills as the record on appeal, we find
no error.
Our reading of the record reveals no promise by the
trial court to admonish the jury.
The exchange between the court
and counsel following the examination of Mason, and his denial of
making the alleged remark, reads as follows:
COURT: Do you want to poll any of the jurors
or talk to any of the jurors?
MR. DAVIS [counsel for Mills]: Probably the
person that told us is quite frankly my
Father. He came down to watch the trial
today, and I know for a fact that my Father
said that this man made that statement that
he did, and I would ask for a specific
admonishment in regard to that. I really
don't want to have my Father get involved in
it. He would swear that he heard that
statement but I believe a specific
admonishment from the Court in regard to
-2-
whether Mrs. Kennedy had children or whatever
would not be relevant.
MRS. LAMBERT [counsel for Kennedy]:
not object.
I would
COURT: I doubt that any jurors would be too
impressed by Mr. Mason's commentary anyway.
At the conclusion of the evidence I will
remind them of that obligation. Okay.
(Emphasis added.)
The trial court indicated in its order denying Mills's
motion for new trial that it had examined the alleged statement
during trial and "concluded that the integrity of the jury was in
no way compromised by the presence of Mr. Mason during the trial,
nor by any comments attributed to him."
The transcript of the
court's remarks to the jury at the close of all evidence is not
included in the record on appeal.
However, we see no indication
that the court promised to admonish the jury about Mason's
statement; it stated that it would remind the jurors of their
obligation.
Mills's counsel did not poll the jurors regarding what, if
any, prejudicial effect the alleged remark might have had on
their deliberations or their attitudes.
In fact, the entire
argument on appeal is based on conjecture and speculation.
Mills's brief to this Court states that:
[w]hether Mr. Mason actually made the
statements is not at issue. The fact that
the trial court agreed to give the specific
admonishment is sufficient to give rise to
the inference that the comments were made and
could potentially prejudice the Jury.
-3-
We are not inclined to pile supposition upon supposition in order
to reach the conclusion that the jury could have potentially been
tainted.
While an uncontroverted affidavit supporting a motion
for new trial may be taken as true, Leslie v. Egerton, Ky., 445
S.W.2d 116, 118 (1969), the affidavit here is directly
contradicted by Mason himself.
There is no indication that any
member of the jury was actually influenced by the statement.
Although an award of $0 damages is unusual, especially where
liability has been determined by the court prior to trial, we do
not have the testimony of the witnesses to examine whether the
award was so disproportionate that it could only have stemmed
from passion or prejudice.
We will not intrude upon the verdict
when we are presented with only an unsupported assumption of
prejudice.
Tilley v. Bell, Ky., 479 S.W.2d 901, 903 (1972).
The judgment of the Rockcastle Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Rodney G. Davis
Richmond, Kentucky
Bridget L. Dunaway
J. L. Albright
London, Kentucky
-4-
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