HARDEE'S FOOD SYSTEMS, INC. v. DAVID G. CRABTREE
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RENDERED: February 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NOT TO BE PUBLISHED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-002894-MR
HARDEE'S FOOD SYSTEMS, INC.
APPELLANT
APPEAL FROM TRIGG CIRCUIT COURT
HONORABLE BILL CUNNINGHAM, JUDGE
ACTION NO. 98-CI-00135
v.
DAVID G. CRABTREE
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
COMBS, EMBERTON, and TACKETT, Judges.
COMBS, JUDGE:
Hardee's Food Systems, Inc. ("Hardee's") appeals
from a judgment entered by the Trigg Circuit Court.
The
appellant contends that the trial court erred by awarding David
G. Crabtree certain damages that he was not legally entitled to
recover.
After our review of the record and the legal arguments,
we agree that Crabtree failed to comply with the provisions of
Kentucky Rule of Civil Procedure (CR) 8.01(2).
Consequently, we
are compelled to vacate and remand.
Crabtree filed this negligence action against Hardee's
on September 16, 1998.
He alleged that he had been severely
injured when he took a fall on Hardee's premises.
He sought
reimbursement for his lost wages, compensation for his impaired
ability to earn money, compensation for his past and future
medical expenses, and an award for pain and suffering.
Hardee's filed a timely answer and, in accord with CR
8.01(2), propounded interrogatories aimed at discovering the
specific amounts sought by Crabtree for the unliquidated damage
claims.
CR 8.01(2) provides as follows:
In any action for unliquidated damages the
prayer for damages in any pleading shall not
recite any sum as alleged damages other than
an allegation that damages are in excess of
any minimum dollar amount necessary to
establish the jurisdiction of the court
provided, however, that all parties shall
have the right to advise the trier of fact as
to what amounts are fair and reasonable as
shown by the evidence. When a claim is made
against a party for unliquidated damages,
that party may obtain information as to the
amount claimed by interrogatories; if this is
done, the amount claimed shall not exceed the
last amount stated in answer to
interrogatories.
(Emphasis added).
Crabtree's answers to interrogatories were timely filed
and properly verified.
With respect to his claim for lost wages,
Crabtree indicated that his response would be "supplemented at a
later date."
In response to a request to provide the specific
amounts "claimed for each allegation of unliquidated damages,"
the plaintiff listed "[p]ain and suffering - $100,000.00."
He
claimed $4,685.00 in medical expenses.
On March 11, 1999, the trial court ordered the parties
to complete discovery prior to the pre-trial conference scheduled
for August 9, 1999.
The pre-trial conference was held as
planned, and the trial was scheduled for August 26, 1999.
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Without seeking leave of court, counsel attempted to
supplement Crabtree's answers to interrogatories in the midafternoon of August 25, 1999, by means of an unverified facsimile
to counsel for Hardee’s.1
In response, Hardee's filed a motion
in limine heard by the trial court on the morning of trial
(August 26, 1999).
Citing the provisions of CR 8.01(2), Hardee's
argued that Crabtree's attempt to supplement his earlier answers
was inadequate and unseasonable.
Consequently, it objected to
any proof relative to a claim for lost wages or for permanent
impairment of earning capacity and contended that proof relative
to Crabtree's medical expenses must be limited to the previously
disclosed sum of $4,685.00.
The trial court held that Hardee's
was not prejudiced by the late disclosures and denied the motion.
The court also refused a request in the alternative for a
continuance of the trial.
Following closing arguments, the trial court overruled
Hardee's objections to jury instructions that reflected the
supplemented damage claims.
The case was submitted to the jury
with instructions to determine whether Hardee's had failed to
exercise reasonable care with respect to Crabtree and, if so, to
award him damages that fairly and reasonably compensated him for:
medical expenses (not to exceed $7,816.00), any future medical
expenses, lost wages (not to exceed $22,000.00), permanent
impairment of power to labor and earn money (not to exceed
$99,000.00), and pain and suffering (not to exceed $100,000.00).
1
These responses were not filed with the court until some
three weeks following the end of trial.
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The jury found that both Crabtree and Hardee's had
acted negligently, apportioning fault 25% to Crabtree and 75% to
Hardee's.
It returned a verdict awarding Crabtree $7,816.00 in
medical expenses, $75,000.00 in future medical expenses,
$45,000.00 for pain and suffering, $22,000.00 for lost wages, and
$75,000.00 for permanent impairment of his power to labor and to
earn money.
In accordance with the verdict, the trial court
entered judgment in favor of Crabtree in the amount of
$168,612.00 (75% of the entire sum awarded by the jury).
The
trial court denied Hardee's subsequent motions for judgment
notwithstanding the verdict (JNOV) or a new trial.
This appeal
followed.
The parties agree that the Kentucky Supreme Court's
decision in Fratzke v. Murphy, Ky., 12 S.W.3d 269 (1999),
controls the outcome of this appeal.
While we believe that the
facts and circumstances of this case involve some issues not
examined by the Fratzke Court, the reasoning of that decision
necessarily dictates and directs our analysis in this appeal.
In Fratzke, the Kentucky Supreme Court confirmed that a
trial court may not award damages for unliquidated claims that
are in excess of the last amount claimed by the plaintiff in
answers to interrogatories.
See also Burns v. Level, Ky., 957
S.W.2d 218 (1997), holding that the language of the rule is
mandatory and gives a trial court no discretion as to its
application; and National Fire Ins. Co. v. Spain, Ky. App., 774
S.W.2d 449 (1989).
In view of this controlling precedent,
Crabtree concedes that he is not entitled to recover any portion
-4-
of the jury's award of future medical expenses.
He admits that
the sum sought for this unliquidated claim was never properly
identified in his answers or supplementary answers to
interrogatories.
Crabtree argues, however, that his claims for lost
wages and permanent impairment of ability to labor and to earn
money had been properly identified in his supplemental answers to
interrogatories and, consequently, that he is entitled to retain
that portion of the judgment.2
Analyzing the requirements of CR
8.01(2) under strikingly similar circumstances, the Fratzke court
squarely rejected this contention.
In Fratzke, the plaintiff had originally filed timely
and responsive answers to interrogatories propounded by the
defendant.
These answers, however, omitted an amount for any
damage claim other than medical expenses incurred to date.
By
failing to identify any other sums, the court held, "Fratzke
effectively stated that her claim for unliquidated damages was
nothing."
Fratzke, supra at 271.
As in the case before us, the trial court in Fratzke
had overruled defense counsel's objection to any mention of the
plaintiff's claims for unliquidated damages on grounds that CR
8.01(2) prohibited Fratzke from recovering on those claims.
The
trial court reasoned that such a result was unduly harsh on the
plaintiff.
On the afternoon of the last day of trial, the
plaintiff finally filed with the court clerk her supplemental
2
Crabtree maintains that the additional sums claimed for
past medical expenses are not "unliquidated damages" and thus
that they are not governed by CR 8.01(2). We agree.
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answers to interrogatories providing monetary amounts for
unliquidated damage claims.
On appeal, the Kentucky Supreme Court affirmed this
court's opinion reversing the trial court's decision.
Construing
the provisions of CR 26.05 as imposing a "seasonable" time limit
on a party's ability to supplement an answer to interrogatories
for claims for unliquidated damages, the Supreme Court held that
any attempt to supplement answers to interrogatories after trial
has commenced is not seasonable as a matter of law.
Fratzke,
supra at 272.
The Supreme Court acknowledged that its decision was
severe but held that the result was required by the plain
language of the rule and controlling precedent.
Id. at 273.
The
Court concluded its opinion with the observation that Fratzke had
had the opportunity to comply with the rule seasonably or that
even after a seasonable time had expired, she could have moved
the trial court to permit her to supplement her answers.
273.
Id. at
Her failure to do either had the obvious consequence of the
severe outcome dictated by the combined impact of CR 8.01(2) and
CR 26.05.
In this case, we are presented with two issues: (1)
whether counsel's attempt to supplement the answers to
interrogatories was seasonable and (2) whether Crabtree's failure
to verify the responses as required by CR 33.01 affects the
answers.
While the former issue is governed by Fratzke, the
latter involves application of the plain language of CR 33.01.
-6-
Counsel attempted to supplement the answers to
interrogatories by means of facsimile transmission weeks after
the court-imposed discovery deadline had passed and just hours
before trial was scheduled to commence.
We cannot agree that he
seasonably complied with the rule in responding to the
defendant's timely discovery requests.
The responses filed with
the court clerk approximately three weeks following trial were
not seasonable as a matter of law pursuant to Fratzke.
As an
argument in the alternative, Crabtree suggests that Hardee's was
under an obligation to seek a court order compelling his timely
response to the interrogatories.
We disagree.
There is no such
requirement either stated or implied in the pertinent civil
rules.
We next turn to Crabtree's failure to verify the
supplementary answers to interrogatories.
CR 33.01(2) provides,
in part, as follows:
Each interrogatory shall be answered
separately and fully in writing under oath,
unless it is objected to, in which event the
reasons for objections shall be stated in
lieu of an answer. The answers are to be
signed by the person making them, and the
objections signed by the attorney making
them.
(Emphasis added).
The rule plainly provides in mandatory language that
answers to interrogatories are to be sworn to and signed by the
party served.
In 6 Bertelsman & Philipps, Kentucky Practice, CR
33.01, Comment 4 (5th ed. 1995), the author explains that answers
to interrogatories should be in such a form that they may be used
-7-
at trial and that it is improper for a party's attorney to sign
those responses.
The record indicates that the supplementary answers
were never verified by Crabtree.
Nor is there anything in the
record to suggest that the parties stipulated or agreed to any
other procedure not provided for by the rule.
Under our rules of
civil procedure, the act of verifying answers to interrogatories
is testimonial in nature.
As a result, Crabtree's failure ever
to verify the responses cannot be overlooked.
A party's
obligation to verify answers to interrogatories is explicit and
meaningful; his failure to comply with this obligation is fatal.
Based upon the holding of the Kentucky Supreme Court in
Fratzke, supra, and our reading of CR 33.01, we are compelled to
conclude that Crabtree's supplementary answers to interrogatories
were both unseasonable and unacceptable in their form.
Our
resolution of these issues renders moot the appellant's remaining
issues.
The judgment of the Trigg Circuit Court is vacated, and
the matter is remanded with directions to enter judgment based on
the directives in our decision.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Matthew J. Baker
Matthew P. Cook
Bowling Green, KY
Kenneth R. Haggard
Hopkinsville, KY
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