CITY-COUNTY PLANNING COMMISSION OF WARREN COUNTY, KENTUCKY v. JOSEPH KOCH
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RENDERED:
JANUARY 12, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001814-MR
CITY-COUNTY PLANNING COMMISSION
OF WARREN COUNTY, KENTUCKY
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE THOMAS LEWIS, JUDGE
ACTION NO. 98-CI-00751
v.
JOSEPH KOCH
APPELLEE
OPINION
AFFIRMING
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BEFORE:
BARBER, KNOPF, AND TACKETT, JUDGES.
BARBER, JUDGE:
Appellant, City-County Planning Commission of
Warren County, Ky. (hereinafter “the Commission”), seeks review
of a judgment of the Warren Circuit Court, awarding Appellee,
Joseph Koch (“Koch”), damages for lost wages, emotional distress,
damage to reputation and punitive damages under Kentucky’s
“whistle blower” law.
The facts were in dispute.
by the Commission.
Koch was hired as a planner
He alleged that he was terminated in
retaliation for “whistle blowing,” having reported that Danny
Whittle (“Whittle”), his supervisor, was using Planning
Commission time to conduct his private computer consulting
business.
The Commission raises six issues on appeal.
The first
is whether the trial court erred in denying its motion for a
mistrial.
The Commission contends that Koch improperly injected
the issue of insurance during voir dire.
The record reflects
that Koch’s counsel asked if any jurors were self-employed.
juror raised her hand.
employment.
A
Koch’s counsel asked what type of self-
The juror responded “part of an insurance agency and
finance company.”
Koch’s counsel then asked whether the company
did any business with the Commission.
The juror responded that
she thought her husband may have years ago.
She did not indicate
what type of business. A bench conference took place and the
juror was stricken for cause.
mistrial.
The judge denied the motion for
We find no error.
First we consider the question of whether
there was prejudice . . . by reason of the
mention of "insurance" as contended by
appellant. . . . The juror being
interrogated at the time stated he was
engaged in the real estate business, and then
counsel . . . asked the juror if he was also
in the insurance business. . . .
Litigants have a wide latitude in the matter
of voir dire examination of prospective
jurors. Especially is that true in cities or
urban areas where attorneys are not and
cannot be acquainted with all the jurors. But
insofar as bringing into the picture the fact
that some party in litigation has insurance
coverage, the attorneys are held to the
utmost good faith. Usually this question of
good faith, or lack of it, is one for the
trial judge to determine in the exercise of
sound discretion. [citation omitted].
Insko v. Cummins, Ky., 423 S.W.2d 261, 263 (1968).
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The Commission contends that the trial court erred in
failing to dismiss the complaint and/or granting a mistrial or
continuance, because Koch “withheld evidence.”
on December 15, 1998.
Koch was deposed
During questioning, Koch was asked to
furnish documentation of the work he had produced while employed
by the Commission.
The Commission contends that this information
(Plaintiff’s “Exhibit 9”) was not “presented” until Koch took the
stand at trial, in June 1999.
The trial judge allowed the
Commission to review “Exhibit 9” overnight, before crossexamining Koch.
The Commission complains that the trial judge
erred in admitting the documents, because Koch had an
“affirmative duty” to supply what was promised at his deposition.
The Commission cites no authority in support of this argument.
As noted by Koch, no written discovery request or
motion to compel production of the subject documents were filed
following Koch’s deposition.
Further, Koch’s pretrial compliance
filed January 14, 1999, reflects that he planned to introduce:
“Documents reflecting the work done by Plaintiff during his
tenure at the Commission, including his work on various projects
and proposals.”
The trial court’s September 22, 1998, and March
1, 1999 orders setting the case for trial and pretrial conference
state that the parties are to file a written statement
containing: “A list of all documentary evidence and other
exhibits which, if not objected to at the pretrial conference,
will be admitted in evidence at trial.” (emphasis added).
The
Commission’s argument that the trial court committed reversible
error by admitting “Exhibit 9” is without merit.
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The Commission contends that the trial court erred in
denying its motion in limine to exclude evidence that it removed
Danny Whittle from the position of assistant director, several
months after Koch was terminated.
The Commission attempts to
persuade us that evidence of the subsequent disciplinary action
should have been excluded under KRE 407, as a subsequent remedial
measure. “[A]buse of discretion is the proper standard of review
of a trial court’s evidentiary rulings.”
Goodyear Tire & Rubber
Co. v. Thompson, Ky., 11 S.W.3d 575, 577 (2000).
In its reply brief, the Commission quotes the trial
court as stating that “it would be reversed” were it to allow
evidence of the subsequent disciplinary action against Whittle.
That is misleading.
The trial court denied the motion in limine
following further discussion, because it concluded that the
evidence was admissible.
We find no error.
KRE 407 provides that:
When after an event, measures are taken
which, if taken previously, would have made
an injury or harm allegedly caused by the
event less likely to occur, evidence of the
subsequent measures is not admissible to
prove negligence in connection with the
event. This rule does not require the
exclusion of evidence of subsequent measures
. . . when offered for another purpose, . . .
or impeachment. (emphasis added).
KRE 407 only bans the evidence if offered to prove
negligence.
purposes.
The evidence is properly admissible for other
Davenport v. Ephraim McDowell Memorial Hospital, Inc.,
Ky. App., 769 S.W.2d 56 (1988).
Koch argues, and we agree, that
evidence of the Commission’s subsequent discipline of Whittle
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bore directly on the credibility of Koch’s whistle blower claim;
further, that such evidence was necessary to impeach defense
witnesses’ claims that Whittle did no wrong.
Laura Southard,
Executive Director of the Planning Commission (“Southard”),
denied having recommended Koch’s termination, because of what he
had told her about Whittle’s outside work.
Southard maintained
that she had not taken any retaliatory steps against Koch.
The
Commission, in its statement of facts, asserts that “it was
understood by Ms. Southard and the Planning Commission members
that Mr. Whittle was still running his private computer software
business.
Ms. Southard . . . knew about this and . . . she never
found Mr. Whittle’s side business to infringe on his Planning
Commission work.”
The trial court did not abuse its discretion
in denying the motion in limine.
The Commission contends that the trial court erred in
giving an improper “whistle blower” instruction.
The Commission
submits that the jury should have been instructed pursuant to the
statutory language found in KRS 61.103(3) which provides, in
part, that “[o]nce a prima facie case of reprisal has been
established and disclosure determined to be a contributing
factor, the burden of proof shall be on the agency to prove by
clear and convincing evidence that the disclosure was not a
material fact in the personnel action.”
Nevertheless, the
offered instruction did not encompass the statutory language of
KRS 61.103(3) that the Commission now argues should have been
included.
As the Commission noted in its motion for a new trial,
the instruction it tendered to the trial court was a common law
instruction.
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CR 51(3) provides:
No party may assign as error the giving or
the failure to give an instruction unless he
has fairly and adequately presented his
position by an offered instruction or by
motion, or unless he makes objection before
the court instructs the jury, stating
specifically the matter to which he objects
and the ground or grounds of his objection.
The issue was not properly preserved for appellate review.
The fifth point upon which the Commission relies on for
reversal is stated as follows:
“The trial committed reversible
error by giving an instruction on reputation damages, when there
was absolutely no evidence presented regarding damages to Mr.
Koch’s reputation.”
The Commission provides reference to the
record where this issue was preserved for review; however, the
Commission fails to present any argument or any authority in
support of this issue.
consider.
Thus, there is nothing for us to
Milby v. Mears, Ky. App., 580 S.W.2d 724 (1979).
Instead, the Commission proceeds to argue an entirely
different issue of law -- that it was error to instruct the jury
on reputation damages in the context of the defamation claim,
because there was a qualified privilege defense to the defamation
claim.
The Commission fails to provide any reference to the
record where that issue may have been preserved for review, as
required by CR 76.12(4)(c)(iv).
it.
We therefore decline to consider
Elwell v. Stone, Ky. App., 799 S.W.2d 46 (1980).
The Commission contends that the trial court erred in
instructing the jury on Koch’s claim for punitive damages,
because: (a) there was no evidence to support such instruction;
and (b) Koch did not allege a violation of the correct statutory
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provision in his pleadings – citing only KRS 61.103(2), not KRS
61.102.
The Commission argues that the “evidence does not bear
out . . . [Koch’s] story that he was terminated for making any
report of so-called waste, fraud or abuse by Danny Whittle.”
The
Commission attempts to persuade us that there was “no evidence”
to support a punitive damages instruction.
We cannot agree.
Koch’s so-called “story” was evidence which the jury was entitled
to believe, instead of the Commission’s version of the facts.
There was also evidence that Koch’s allegations against Whittle
were not revealed to the personnel committee at the time Koch’s
termination was under consideration.
In addition, there was
evidence which cast doubt upon the accuracy of the reasons
Southard gave for recommending Koch’s termination.
In Horton v. Union Light, Heat & Power Co., Ky., 690
S.W.2d 382, 285 (1985), the Supreme Court accepted discretionary
review to consider whether evidence was insufficient to justify
submitting to the jury the issue of gross negligence and punitive
damages:
The role of the appellate court when deciding
negligence issues of this sort is limited to
viewing the evidence from a standpoint most
favorable to the prevailing party, . . . .
[citation omitted]. In short, an appellate
court must not substitute its finding of fact
for those of the jury if there is evidence to
support them.
The Commission avoids the fact that the evidence was in conflict,
instead of presenting any argument or authority regarding the
sufficiency of the evidence which was presented.
error.
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We find no
The Commission also contends that the complaint and
amended complaint were insufficient “to invoke the statutory
relief allowed,” because Koch only cited KRS 61.103(2), instead
of also citing KRS 61.102.
KRS 61.103(2) provides that an
employee alleging a violation of KRS 61.102(1) or (2) may bring a
civil action for appropriate injunctive relief or punitive
damages.
The Commission contends that Koch’s omission was
significant and he should be bound by his pleadings.
Both parties cite Hoke v. Cullinan, Ky., 914 S.W.2d
335, 339 (1995) which explains that “[d]espite the informality
with which pleadings are nowadays treated, and despite the
freedom with which pleadings may be amended, CR 15.01, the
central purpose of pleadings remains notice of claims and
defenses.”
Clearly, the Commission had notice of Koch’s claim,
because the Commission pled the provisions of KRS 61.102 in its
motion to dismiss, separate answer and counterclaim.
CR 15.02
provides, in pertinent part, that “[w]hen issues not raised by
the pleadings are tried by express or implied consent of the
parties, they shall be treated in all respects as if they had
been raised in the pleadings.”
The judgment of the trial court
is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEFS FOR APPELLEE:
Matthew P. Cook
Frank Hampton Moore
W. Currie Milliken
Bowling Green, Ky.
Thomas A. Ebendorf
Louisville, Ky.
Steven D. Downey
Bowling Green, Ky.
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