DAVID J. BILLINGS v. JEFFERSON COUNTY, KENTUCKY; CITY OF LOUISVILLE; RONALD A. RICUCCI; EDWARD BLASER; AND MICHAEL DOSSETT JEFFERSON COUNTY, KENTUCKY AND RONALD A. RICUCCI v. DAVID J. BILLINGS
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RENDERED: MARCH 23, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002456-MR
DAVID J. BILLINGS
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANN O'MALLEY SHAKE, JUDGE
ACTION NO. 97-CI-004140
JEFFERSON COUNTY, KENTUCKY;
CITY OF LOUISVILLE;
RONALD A. RICUCCI;
EDWARD BLASER; AND
MICHAEL DOSSETT
AND:
CROSS-APPEAL NO. 1999-CA-002661-MR
JEFFERSON COUNTY, KENTUCKY AND
RONALD A. RICUCCI
v.
APPELLEES
CROSS-APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ANN O'MALLEY SHAKE, JUDGE
ACTION NO. 97-CI-004140
DAVID J. BILLINGS
CROSS-APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HUDDLESTON, McANULTY, AND MILLER, JUDGES.
MILLER, JUDGE:
David J. Billings brings Appeal No. 1999-CA-
002456-MR and Ronald A. Ricucci and Jefferson County, Kentucky,
bring Cross-Appeal No. 1999-CA-002661-MR from an October 5, 1999,
opinion and order of the Jefferson Circuit Court.
We affirm on
appeal and on cross-appeal.
Billings, a long-time employee of the Jefferson County
Police Department, under the command of appellee/cross-appellant,
Chief Ronald A. Ricucci, was under assignment as a detective in
the Metro Narcotics Unit.1
In early 1997, it was decided that
Billings would be removed from the unit and reassigned to the
Jefferson County Uniform Unit.
This was thought by some to be a
position of less prestige, but carrying the same base pay rate.
Before the transfer took effect, Billings elected to retire from
the Jefferson County Police Department.
On July 24, 1997, Billings brought an action against
appellees under what is commonly referred to as the “Whistle
Blower Act.”
Kentucky Revised Statutes (KRS) 61.101 et seq.
He
alleged that his reassignment was in retaliation for disclosing
illegal activities and/or abuse of authority that was occurring
in the Metro Narcotics Unit.
Appellees, City of Louisville, Edward Blaser and
Michael Dossett, tendered a motion for summary judgment alleging
they were not proper parties.
On February 15, 1999, the circuit
court agreed with the City of Louisville, Blaser, and Dossett and
dismissed the claims against them with prejudice.
1
The Metro Narcotics Unit is a joint law enforcement
operation of the City of Louisville and Jefferson County.
-2-
In his complaint, Billings prayed inter alia for
compensatory and punitive damages.
The circuit court dismissed
the claims for compensatory and punitive damages as he failed to
timely respond to interrogatories pertaining to the claims for
damages.
The case came on for a trial before a jury against
Chief Ricucci and Jefferson County.
The jury found that Billings
did, in good faith, report a violation of the law, suspected
mismanagement, and/or abuse of authority, and that such was a
contributing factor to his transfer out of the Metro Narcotics
Unit.
Thereupon, the circuit court entered judgment against
Chief Ricucci and Jefferson County granting Billings the
equitable remedy of reinstatement to his prior job at the Metro
Narcotics Unit and granting attorney fees in the amount of
$53,450.00, reimbursement of costs in the amount of $1,356.50,
and taxable costs in the amount of $2,801.45.
This appeal and
cross-appeal follow.
Appeal No. 1999-CA-002456-MR
On direct appeal, Billings makes two assertions: (1)
the circuit court erred in dismissing his claim against Edward
Blaser, Michael Dossett, and the City of Louisville, and (2) the
circuit court abused its discretion in refusing to permit him to
pursue claims for compensatory and punitive damages.
Addressing the question of dismissal against Blaser,
Dossett, and the City of Louisville, we perceive no merit in
Billings' claim.
It is abundantly clear that Billings was
employed by Jefferson County and not by the City of Louisville.
-3-
As such, we do not believe Blaser, Dossett, or the City of
Louisville could be sued under KRS 61.102.
We thus affirm the
circuit court's dismissal of the above parties.
Turning to the question of damages, we are of the
opinion the circuit court was correct in denying Billings' claims
for damages.
A violation of Kentucky Rules of Civil Procedure
(CR) 8.01(2), which requires specification as to the amount of
unliquidated damages claimed, authorizes a denial of such
damages.
See Fratzke v. Murphy, Ky., 12 S.W.3d 269 (1999); Burns
v. Level, Ky., 957 S.W.2d 218 (1997).
Billings' failure to
itemize damages until just before trial justified the circuit
court's action.
The record contains an order directing that all
answers to outstanding interrogatories be made within seven days.
That order was entered June 11, 1998.
According to the record,
Billings' response to the interrogatory requesting itemization of
damages was due June 18, 1998.
The information was not furnished
until the afternoon of March 15, 1999, the eve of trial.
Fratzke
and Burns required dismissal.
Nevertheless, casting aside failure of Billings to
comply with CR 8.01(2), we are not altogether convinced a case
could have been made for submission upon the claims of
compensatory and punitive damages.
discharge case.
We do not perceive this as a
It was Billings, of his own volition, who
terminated his employment, not his employer, Jefferson County.
The recrimination against Billings caused no direct loss of
income, but was a mere reassignment at the same base level of
pay.
-4-
Doubtless, the legislature had in mind that many acts
of recrimination may not result in pecuniary damages, when it
provided for an alternate equitable remedy.
In any event, we are
of the opinion that the remedies afforded Billings, under the
circumstances of this case, were adequate and reasonable absent
an award for compensatory or punitive damages.
It seems to us
the remedies afforded Billings by the circuit court are
sufficient vindication for the wrong done to him under the
Whistle Blower Act.
Cross-Appeal 1999-CA-002661-MR
On cross-appeal, Ronald A. Ricucci and Jefferson County
argue that (1) absent a finding by the jury that Billings was
constructively discharged, and in light of his voluntary
retirement, the circuit court had no authority to order
reinstatement as a remedy, and (2) as Billings did not succeed in
his claim for monetary damages and is not entitled to
reinstatement, an award of attorney's fees is inappropriate.
In
Woodward v. Commonwealth, Ky., 984 S.W.2d 477 (1998), our Supreme
Court had occasion to interpret KRS 61.101(1), labeling same a
“criminal” statute.
In the course of the opinion, the Court
stated:
The crime of reprisal against a public
employee is codified in KRS 61.102. The
statute provides:
No employer shall subject to
reprisal, or directly or
indirectly use, or threaten to
use, any official authority or
influence, in any manner
whatsoever, which tends to
discourage, restrain, depress,
dissuade, deter, prevent,
-5-
interfere with, coerce, or
discriminate against any employee
who in good faith reports,
discloses, divulges, or otherwise
brings to the attention
. . .
an actual or suspected violation
of any law, statute, executive
order, administrative regulation,
. . . or any facts or information
relative to actual or suspected
. . . abuse of authority.
Four elements must necessarily be met
in order for this crime to have occurred.
First, from the context of this chapter, the
employer must be an officer of the state or
one of its political subdivisions. Second,
the employee must be a state employee or an
employee of a political subdivision. Third,
the employee must make a good faith report of
a suspected violation of state or local
statute or administrative regulation to an
appropriate body or authority. Fourth, the
defendant must be shown to act to punish the
employee for making this report or to act in
such a manner so as to discourage the making
of this report. (Emphasis added.)
Id. at 480-481.
It is clear from the foregoing that discharge, actual
or constructive, is not a prerequisite to an action under the
statute.
It is only necessary that a whistle blower suffer some
form of punishment or other adverse treatment.
While we do not
view Billings' departure as constituting an actual discharge, it
was a predictable consequence of his adverse treatment.
We
assign no merit to Ricucci and Jefferson County's argument that
job restoration was not an available remedy.
Jefferson County and Ricucci also argue that
reinstatement and attorney fees are inappropriate in absence of a
monetary award.
We think the Whistle Blower Act was clearly
-6-
written so as to provide alternate legal and equitable remedies.
We simply do not believe that a monetary award is a necessary
prerequisite to equitable relief.
Upon the whole, we are of the opinion there was
sufficient evidence to support the findings of the jury and the
relief afforded by the circuit court.
The testimony of Billings
alone supports such.
For the foregoing reasons, the appeal and cross-appeal
are affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT/CROSSAPPELLEE:
BRIEF AND ORAL ARGUMENT FOR
APPELLEES/CROSS-APPELLANTS,
RONALD A. RICUCCI AND
JEFFERSON COUNTY, KENTUCKY:
Thomas E. Clay
Sean Ragland
Louisville, Kentucky
J. Matthew Carey
Louisville, Kentucky
ORAL ARGUMENT FOR
APPELLANT/CROSS-APPELLEE:
BRIEF AND ORAL ARGUMENT FOR
APPELLEES, CITY OF LOUISVILLE,
EDWARD BLASER, AND MICHAEL
DOSSETT:
Thomas E. Clay
Louisville, Kentucky
Lynne A. Fleming
Louisville, Kentucky
-7-
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