THOMAS E. KOENIGSTEIN v. MICHAEL AND DANIELLE MCKEE INDIVIDUALLY AND AS NEXT FRIENDS OF M.M., A MINOR
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RENDERED:
January 9, 2004; 10:00 a.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-002212-MR
THOMAS E. KOENIGSTEIN
APPELLANT
APPEAL FROM HENRY CIRCUIT COURT
HONORABLE KAREN A. CONRAD, JUDGE
ACTION NO. 02-CI-00111
v.
MICHAEL AND DANIELLE MCKEE
INDIVIDUALLY AND AS NEXT FRIENDS
OF M.M., A MINOR
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, JUDGE; AND MILLER AND PAISLEY, SENIOR JUDGES.1
PAISLEY, JUDGE.
This is an appeal from a judgment entered by
the Henry Circuit Court following the court’s entry of summary
1
Senior Judges John D. Miller and Lewis G. Paisley sitting as Special Judges
by assignment of the Chief Justice pursuant to Section 110(5)(b) of the
Kentucky Constitution and KRS 21.580.
judgment as to the civil liability claims against appellant
which held him liable for the assault and battery of appellee,
M.M., and which resulted in a jury award of $200,606.70 in
damages.
Appellant claims that the judgment should be reversed
and remanded for the reasons that (1) summary judgment as to the
liability claims against him for assault and battery was
improper, (2) the punitive damages award was excessive, (3) the
trial court should have declared a mistrial and granted a new
trial due to appellees’ alleged misconduct, and (4) the trial
court should have granted a new trial due to alleged juror
misconduct.
For the following reasons, we affirm.
In April 2001, appellant was arrested and charged with
first degree sexual abuse, intimidating a witness, and
distributing obscene matter to a minor.
The charges resulted
from an incident during which appellant engaged in improper
touching of appellees’ minor daughter, M.M., displayed
pornographic material to M.M., and threatened to hurt M.M. if
she reported the incident to anyone.
Approximately one year
later, appellant pled guilty to all three charges and was
sentenced to five years’ imprisonment.
Following appellant’s guilty plea, M.M.’s parents
filed an action on behalf of themselves and M.M., asserting
claims against appellant for assault, battery, and outrage, as
well as for various other claims that were eventually dismissed.
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As to the issue of liability, the court granted summary judgment
to appellees after concluding that appellant’s guilty pleas to
the criminal charges precluded him from relitigating that issue.
The sole issue of damages was submitted to a jury, which
returned a verdict of $50,000 for battery, $50,000 for assault,
$606.70 for out-of-pocket expenses, and $100,000 in punitive
damages.
Appellant’s motion to alter, amend, or vacate, or
alternatively to award a new trial, was denied.
This appeal
followed.
Appellant’s first argument is that the trial court
erred by granting appellees’ motion for summary judgment on the
assault and battery claims.
We disagree.
It is well settled in Kentucky that the standard for
summary judgment requires a movant to “show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.”
Whitworth, Ky., 74 S.W.3d 695, 698 (2002).
Commonwealth v.
See CR 56.03.
Moreover, “[b]ecause summary judgment involves only legal
questions and the existence of any disputed material issues of
fact, an appellate court need not defer to the trial court’s
decision and will review the issue de novo.”
Lewis v. B & R
Corporation, Ky. App., 56 S.W.3d 432, 436 (2001).
Here, the trial court granted appellees’ summary
judgment motion after finding that under the principles of res
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judicata, appellant was estopped from denying liability for the
assault and battery of M.M. due to his guilty pleas to the
related charges of first degree sexual abuse, distributing
obscene matter to a minor, and intimidating a witness.
Appellant asserts, however, that summary judgment was improper
because although his guilty pleas were admissible, they were not
conclusive as to civil liability, and he should have been
allowed to explain his plea.
Several cases appear to establish conflicting legal
rules relating to the issue of res judicata.
At least one
commentator has opined that “[i]t is arguable that no other
doctrine within the field of civil procedure causes as much
confusion among lawyers and the Courts as does res judicata.”
Gregory M. Bartlett & Margaret M. Maggio, Civil Procedure
Survey, 28 N.Ky.L.Rev. 316, 348 (2001).
Res judicata is defined
as the “[r]ule that a final judgment rendered by a court of
competent jurisdiction on the merits is conclusive as to the
rights of the parties and their privies, and, as to them,
constitutes an absolute bar to a subsequent action involving the
same claim, demand or cause of action.”
(6th ed. 1990).
BLACK’S LAW DICTIONARY 1305
Further, “the rule of res judicata does not bar
an action unless there is an identity of parties, identity of
causes of action, and the prior action was decided on its
merits.”
Moore v. Commonwealth, Ky., 954 S.W.2d 317, 318 (1997)
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(citation omitted).
See also Montgomery v. Taylor-Green Gas
Co., 306 Ky. 256, 206 S.W.2d 919 (1947).
Until recently, courts generally found res judicata to
be inapplicable to cases similar to the one now before us and
instead followed the reasoning set forth in Race v. Chappell,
304 Ky. 788; 202 S.W.2d 626, 628 (1947), which held that
[o]rdinarily a judgment in a criminal
transaction cannot be received in a civil
action to establish the truth of the facts
on which it was rendered, but where the
defendant in the criminal case pleaded
guilty, and the record showing such plea is
offered in evidence in a civil action
against him, growing out of the same
offense, the judgment is admitted, not as a
judgment establishing a fact, but as a
declaration or admission against interest
that the fact is so. However, the defendant
may testify as to the circumstances under
which the plea was made and explain the
reasons for such plea.
(Citation omitted.)
325 (1964).
See also Johnson v. Tucker, Ky., 383 S.W.2d
Likewise, convictions which did not involve guilty
pleas, were admitted by the courts as “prima facie (permitting
explanation or rebuttal) but not conclusive evidence.”
Harlow
v. Dick, Ky., 245 S.W.2d 616, 618 (1952).
Appellant argues that because our highest court has
not explicitly held otherwise, the state of the law regarding
res judicata has remained unchanged.
He claims, therefore, that
summary judgment was improper because his guilty pleas in the
criminal action were not conclusive as to his liability in the
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civil action, and that he should have been allowed to explain
his plea to the jury.
However, appellant fails to acknowledge
the fact that the doctrine of res judicata has changed
considerably since the rendition of the above cited cases.
Most
notable was the expansion of res judicata to include collateral
estoppel, or issue preclusion, which does not require mutuality
of the parties.
More specifically, in Sedley v. City of West
Buechel, Ky., 461 S.W.2d 556, 559 (1970), the Kentucky Supreme
Court stated:
It is true that Kentucky has subscribed
basically to the rule which permits only
parties to the former action, and their
privies, to plead res judicata, and which
requires “mutuality” in the application of
the rule. Many jurisdictions, however, have
adopted the doctrine of “claim preclusion”
or “issue preclusion” under which a person
who was not a party to the former action nor
in privity with such a party may assert res
judicata against a party to that action, so
as to preclude the relitigation of an issue
determined in the prior action. . . . The
“preclusion” doctrine seems reasonable to us
and we shall adopt it.
(Citations omitted.)
As the doctrine of collateral estoppel continued to
evolve, the Kentucky Supreme Court recognized that
determinations of fact that are essential to the decision in a
prior proceeding also are conclusive in subsequent proceedings.
Gregory v. Commonwealth, Ky., 610 S.W.2d 598, 600 (1980).
court explained that “[c]ollateral estoppel, or issue
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The
preclusion, is part of the concept of res judicata and serves to
prevent parties from relitigating issues necessarily determined
in a prior proceeding.”
Id. at 600 (citing Sedley, supra,
Barnett v. Commonwealth, Ky., 348 S.W.2d 834 (1961).
Further,
the court specifically recognized that collateral estoppel could
be applied from a criminal to a civil proceeding.
Id. at 600.
This court subsequently followed Gregory and Sedley in holding
that “[t]here is no question but that a criminal conviction can
be used for purposes of collateral estoppel in a later civil
action.”
Roberts v. Wilcox, Ky. App., 805 S.W.2d 152, 153
(1991) (citing May v. Oldfield, 698 F.Supp. 124 (E.D.Ky. 1988)).
The rationale underlying this modern use of collateral
estoppel was clearly explained in Gossage v. Roberts, Ky. App.,
904 S.W.2d 246 (1995), which found that in a civil action, the
appellant was collaterally estopped from relitigating an issue
concerning his act of shooting two women while under the
influence of prescription medications, as causation had already
been established in his criminal case.
The court found the
reasoning of an Illinois case to be particularly persuasive:
There is no question that plaintiff had a
full and fair opportunity in the [prior
criminal] proceeding to litigate the issue
of whether his actions were the result of an
involuntary induced state of intoxication.
Plaintiff voluntarily, intelligently, and
knowingly waived the issue and entered his
plea of guilty. On the incentive to
litigate question, a person faced with the
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potential of being sentenced to a
substantial term in prison has every
incentive to interpose a defense that would
constitute a complete defense to the crimes
he is charged with committing.
. . . .
The clearest case for such an estoppel
is where a defendant pleads guilty to a
substantial criminal charge and then
seeks in civil litigation concerning
the same transaction to assert that he
did not commit the criminal act.
Id. at 249 (quoting Bulfin v. Eli Lilly & Company, 244
Ill.App.3d 785, 185 Ill. Dec. 269, 614 N.E.2d 403, 407 (1
Dist.1993) (citation omitted)).
Next, the Kentucky Supreme Court noted in Moore, 954
S.W.2d at 320, that “[w]hile the subject of collateral estoppel,
or issue preclusion, has not been addressed by this Court
recently, it remains a viable doctrine in this Commonwealth.”
May, supra, lends further support to the proposition that a
prior criminal conviction can be conclusive of civil liability
under proper circumstances.
The defendant in that case had
previously been convicted of tampering with odometers.
The
plaintiff brought an action seeking damages due to alterations
to an odometer of a car that he had purchased from the
defendant.
The court found that the defendant was collaterally
estopped from relitigating the issue of liability.
Finally, according to 47 Am. Jur. 2d Judgments
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§732-§733 (1995), the modern trend among other jurisdictions is
to treat criminal convictions conclusively as to subsequent
proceedings when the factors of collateral estoppel are met.
“Under the modern approach, a judgment of conviction precludes
the defendant from denying the allegations in a subsequent civil
complaint as to issues that were actually litigated and
adjudicated in the prior criminal proceeding.”
210-211.
Id. §733, at
“Generally, the higher standard of proof and numerous
safeguards in criminal proceedings are given as rationale for
the rule allowing judgments in criminal proceedings to have a
preclusive effect in subsequent civil actions.”
209.
Id. §732, at
In addition, preclusive effect is more often applied when,
as here, the prior criminal proceeding “involved a ‘serious
offense’ so that the defendant was motivated to fully litigate
the charges.”
Id. §733, at 212.
After thorough consideration of this issue, we
conclude that although Race and Harlow have not been explicitly
overruled, more recent cases clearly hold that the reasoning of
those cases has been replaced with a new rule of law which
prevents a civil defendant from relitigating an issue that was
necessarily decided against him in a prior criminal action.
In
keeping with the idea that the “doctrines of res judicata and
issue preclusion are based on rules of justice and fairness,”
Revenue Cabinet, Commonwealth of Kentucky v. Samani, Ky. App.,
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757 S.W.2d 199, 202 (1988) (citations omitted), several factors
must be considered, including “(1) identity of issues; (2) a
final decision or judgment on the merits; (3) a necessary issue
with the estopped party given a full and fair opportunity to
litigate; (4) a prior losing litigant.”
319 (citing Sedley, supra).
Moore, 954 S.W.2d at
See also Yeoman v. Commonwealth,
Ky., 983 S.W.2d 459 (1998).
Here, both the criminal and the civil cases against
appellant involved the issue of whether he engaged in the sexual
abuse of M.M.
Appellant’s guilty plea is certainly a final
decision on the merits of the criminal case as he admitted to
the allegations against him.
Moreover, it is clear from the
record that appellant knowingly, intelligently, and voluntarily
waived his right to a trial before entering his guilty plea.
As
such, we believe that the trial court correctly applied the
doctrine of collateral estoppel in this case.
Next, appellant argues that even if collateral
estoppel is applicable herein, the court erred by entering
summary judgment as to the battery claim because none of the
criminal charges to which he pled guilty satisfied the elements
of a civil battery.
Specifically, appellant argues that
although the civil battery charge required a finding that the
contact between appellant and M.M. was harmful or offensive,
neither first degree sexual abuse nor any of the other criminal
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charges against him required a finding of harmful or offensive
contact.
We disagree.
The trial court inferred that appellant’s conduct was
harmful and offensive to M.M.
The court found support for this
position in Thompson v. West American Insurance Company, Ky.
App., 839 S.W.2d 579, 581 (1992), which recognized that it is
well known that sexual molestation causes emotional and
psychological harm to its victims.
See also Goodman v. Horace
Mann Insurance Company, Ky. App., 100 S.W.3d 769 (2003).
While
we certainly agree with appellant that not all sexual contact is
harmful and offensive, it cannot reasonably be disputed that
sexual abuse or molestation of a child is not only criminal, it
is perforce harmful and offensive.
Next, appellant asserts that summary judgment as to
liability for the assault claim was improper because (1) the
elements of assault are not satisfied by the elements of
intimidating a witness, (2) an issue of fact existed as to the
assault claim, and (3) the court should have granted appellant’s
motion for a directed verdict at the close of appellees’ proof.
Again, we find no merit in these claims.
As each of these arguments is based on similar
grounds, they shall be addressed collectively.
First, appellant
argues that he had no intent to intimidate or threaten M.M., and
that his guilty plea did not establish that she feared or
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apprehended imminent contact.
However, it is clear that since
appellant pled guilty to the criminal charge of intimidating a
witness, he cannot now deny that conduct.
In addition,
appellant has offered no evidence to dispute M.M.’s testimony
that she feared him as a result of his conduct, and appellant’s
argument that any harm to M.M. was not imminent because the
threat would become manifest only if she took steps to tell
someone is completely without merit and utterly repugnant.
Further, we are not persuaded by appellant’s assertion that
there was no conclusive evidence to show that he had the
apparent or actual ability to carry out the threat against M.M.,
since the record clearly shows that he had ample opportunity to
carry out his threats as it is undisputed that M.M. spent the
night at his home on the night the abuse occurred and that she
frequented his home thereafter up until the time of his arrest.
Although appellant claims that he made no offer or act to carry
out his threat of harm to M.M. and that words alone are
insufficient to support an assault claim, he overlooks the fact
that immediately prior to his threat, he had engaged in improper
and harmful sexual contact with M.M.
In addition, on the night
of the abuse, appellant slept in the same bed as M.M. and her
aunt for the first time.
Further, based on the record before
us, the trial court correctly denied appellant’s request for a
directed verdict for the reason that “[i]n ruling on a motion
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for a directed verdict, the trial court must accept the evidence
of the party opposing the motion as true and draw all inferences
from the evidence in that party’s favor.
A verdict should not
be directed unless the evidence is insufficient to sustain the
verdict.”
Burgess v. Taylor, Ky. App., 44 S.W.3d 806, 810-811
(2001).
Appellant next argues that even if summary judgment
was appropriate, the trial court erred by failing to grant him a
new trial on the ground that the jury’s damages award of
$200,606.70 was excessive.
While this issue was previously
reviewed by appellate courts under an abuse of discretion
standard, we must now conduct a de novo review.
Cooper
Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424,
121 S.Ct. 1678, 149 L.Ed.2d 674 (2001), Phelps v. Louisville
Water Company, Ky., 103 S.W.3d 46 (2003).
CR 59.01(d) allows
the trial court to grant a new trial to a party if the damages
are excessive and appear “to have been given under the influence
of passion or prejudice or in disregard of the evidence or the
instructions of the court.”
Here, having carefully reviewed the record, we simply
do not find that the compensatory damages awards of $50,000 for
the assault and $50,000 for the battery of M.M. are excessive.
At the time of the abuse, appellant’s status as M.M.’s uncle by
marriage placed him in a position of trust.
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Instead of
protecting and caring for M.M., however, he used his position to
take advantage of her.
At trial, appellees presented competent
evidence to show that M.M. developed various problems as a
result of appellant’s actions.
Specifically, M.M. experienced
physical symptoms, fear, withdrawal from family and friends, and
required mental health treatment before she could resume the
activities of her previous life.
The total compensatory award
of $100,000 does not appear to have been given by the jury under
the influence of passion or prejudice, as the psychological
results of appellant’s conduct will undoubtedly follow M.M. into
adulthood.
Next, the issue of whether the jury’s award of
$100,000 in punitive damages award was excessive must be
reviewed in light of the following three factors: “(1) the
degree or reprehensibility of the defendant’s conduct; (2) the
disparity between the harm (or potential harm) suffered by the
plaintiff and the amount of the punitive damages award; and (3)
the difference between the punitive damages and the civil
penalties authorized or imposed in comparable cases.”
Phelps,
103 S.W.3d at 53 (citing BMW of North America, Inc. v Gore, 517
U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996)).
that these three criteria have been met.
We believe
First, the
reprehensibility of appellant’s conduct is obvious.
Second,
there was no disparity between appellees’ award for punitive
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damages and their award for compensatory damages as both were
approximately $100,000.
Finally, the punitive damages award is
not inconsistent with prior awards in Kentucky.
For instance,
in Roman Catholic Diocese of Covington v. Secter, Ky. App., 966
S.W.2d 286 (1998), this court upheld a jury’s award of $50,000
in compensatory damages and $700,000 in punitive damages to a
former student who was subjected to improper sexual touching by
a teacher.
These factors collectively and conclusively indicate
that the jury’s punitive damages award was not the result of
passion or prejudice, as there was clearly sufficient evidence
to support the award to appellees.
Appellant next argues that the trial court abused its
discretion or erred by refusing to grant a new trial or a
mistrial due to appellees’ alleged misconduct.
We disagree.
CR 59.01 allows a trial court to grant a new trial if
a party was denied a fair trial due to irregularities in the
proceedings, or if the prevailing party engaged in misconduct.
Moreover,
[i]t is universally agreed that a mistrial
is an extreme remedy and should be resorted
to only when there is a fundamental defect
in the proceedings which will result in a
manifest injustice. The occurrence
complained of must be of such character and
magnitude that a litigant will be denied a
fair and impartial trial and the prejudicial
effect can be removed in no other way.
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Burgess, 44 S.W.3d at 814-815 (quoting Gould v. Charlton
Company, Inc., Ky., 929 S.W.2d 734, 738 (1996)).
Here, appellant claims that he was prejudiced by appellees’
allegedly deliberate failure to supplement discovery responses
or to otherwise provide requested information concerning the
healthcare providers and mental health professionals utilized
for M.M.’s treatment or counseling.
However, appellant has
presented no evidence to establish that appellees intentionally
withheld any requested information, and the trial court
responded to appellant’s objection by admonishing the jury not
to consider any testimony by M.M.’s mother regarding the
undisclosed information.
Given these circumstances, we are not
persuaded that by denying appellant’s request for a new trial,
the trial court was clearly erroneous.
S.W.3d 599 (2001).
Miller v. Swift, Ky., 42
Further, we do not believe that the trial
court’s admonition to the jury was inadequate or that the court
erred by failing to grant a mistrial.
Finally, appellant claims that the court erred by
failing to grant him a new trial due to juror misconduct.
CR 59.01(b).
See
We disagree.
“To obtain a new trial because of juror mendacity, ‘a
party must first demonstrate that a juror failed to answer
honestly a material question on voir dire, and then further show
that a correct response would have provided a valid basis for a
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challenge for cause.’”
Adkins v. Commonwealth, Ky., 96 S.W.3d
779, 796 (2003) (quoting McDonough Power Equipment, Inc. v.
Greenwood, 464 U.S. 548, 556, 104 S. Ct. 845, 850, 78 L. Ed. 2d
663 (1984)).
Here, a juror’s affidavit provides the only
support for appellant’s assertion that he was denied a fair
trial due to juror misconduct.
However, not only was the trial
court unable to consider this affidavit because it was untimely,
see Ligon Specialized Hauler, Inc. v. Smith, Ky. App., 691
S.W.2d 902, 904 (1985), but
[i]t is fairly well settled in Kentucky that
. . . a verdict cannot be impeached by the
testimony of a juror. This rule at times
may work a hardship when juror misconduct, a
valid basis for a new trial as set forth in
CR 59.01, can only be shown by the testimony
of a fellow juror. However, the theory is
that a juror will recognize and report any
misconduct to the trial court immediately
and that to allow him to do it after the
verdict “would invite the very kind of
mischief the rule was designed to obviate.”
Doyle v. Marymount Hospital, Inc., Ky. App., 762 S.W.2d 813, 815
(1988) (quoting Rietze v. Williams, Ky., 458 S.W.2d 613, 620
(1970)).
Without further evidence, appellant has failed to
establish that the trial court erred by denying his request for
a new trial.
The judgment of the Henry Circuit Court is affirmed.
JOHNSON, JUDGE, CONCURS.
MILLER, SENIOR JUDGE, DISSENTS AND FILES SEPARATE
OPINION.
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MILLER, SENIOR JUDGE, DISSENTING.
I am not of the
opinion that a guilty plea in a criminal prosecution should be
conclusive as to civil liability.
Guilty pleas are entered for diverse reasons, not the
least of which is to avoid financial ruin.
To all but the
wealthy the cost of a criminal defense is staggering.
I think it a bad precedent to adopt a rule permitting
a criminal adjudication, whether by guilty plea or otherwise, to
conclusively establish civil liability, based upon some arcane
ratiocination involving collateral estoppel or issue preclusion.
I find no authority dictating to the contrary.
In my view the
rule enunciated in Race v. Chappel, 304 Ky. 788, 202 S.W.2d 626
(1947), is the applicable law.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
David J. Guarnieri
Frankfort, Kentucky
Scott T. Dickens
Phillip A. Martin
Louisville, Kentucky
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