ROTH (JOHN P.) VS. CITY OF NEWPORT , ET AL.Annotate this Case
RENDERED: DECEMBER 19, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
JOHN P. ROTH, JR.
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE JULIE REINHARDT WARD, JUDGE
ACTION NO. 05-CI-01220
CITY OF NEWPORT,
NEWPORT POLICE DEPARTMENT
AND DIVISION OF CODE ENFORCEMENT
** ** ** ** **
BEFORE: CAPERTON AND TAYLOR, JUDGES; HENRY,1 SENIOR JUDGE.
CAPERTON, JUDGE: John P. Roth Jr. appeals the order and judgment entered by
the Campbell Circuit Court pursuant to a jury verdict and the subsequent denial of
his motion to alter, amend, or vacate, or in the alternative, for a new trial.
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
Roth’s rental property was inspected by the City of Newport
(hereinafter the City), found to be in violation of the City’s property maintenance
code (code), and subsequently condemned. After Roth’s appeal of the
condemnation was heard and denied in his absence, the City demolished the
property. Roth then sued the City and at trial presented two claims; one, that his
due process rights were violated by the City when they demolished his rental
property; and two, that the City negligently supervised its employees. The basis of
Roth’s claims rested upon whether the City adequately provided notice to Roth
prior to his property’s demolition.
The jury returned a verdict that Roth’s due process rights were not
violated as the City sent adequate notice to Roth prior to the demolition of the
property. Based on the jury instructions, the jury did not consider the second
claim, negligent supervision, as the basis for the negligent supervision claim was
whether notice was given as required by the Due Process Clause. Roth’s motion to
alter, amend, or vacate or, in the alternative, for a new trial was denied by the trial
court. Roth now appeals.
The City received a complaint about the condition of Roth’s property
and on September 9, 2003, Roth was notified that his property suffered structural
defects in violation of code and that his property had been condemned. Roth was
ordered to repair the defects. Roth did not repair the property. On October 10,
2003, a demolition order was issued with a twenty day window in which to appeal.
Roth appealed timely and on November 17, 2003, notice of his appeal hearing
before the Existing Structures Board, which was set for January 21, 2004, was sent
to Roth via certified mail. Roth claimed that he then contacted the City via
telephone to reschedule the hearing date, which the City disputed.2
On January 8, 2004, the City again sent Roth a notice of the hearing
set for January 21, 2004. Roth did not attend the January 21, 2004, hearing as he
claimed to be out of the country. At the hearing, Roth’s appeal from the October
2003, demolition order was denied and a letter was sent to Roth confirming the
decision to deny. No action was then taken until August 2004, when two City
officials were unsuccessful at contacting Roth either in person or over the phone to
discuss the property.3 In November 2004, Roth’s property was demolished.
Roth sued the City alleging a violation of his due process rights,
asserting that the City failed to provide him with adequate notice to apprise him of
the pendency of the action and to afford him an opportunity to present his appeal,
relying on Dusenbery v. U.S., 534 U.S. 161, 167, 122 S.Ct. 694 (2002). Roth
further asserted that the City negligently supervised its employees and thus caused
the violation of Roth’s rights. The City denied both claims.
At trial, the jury instructions submitted required a finding that Roth’s
due process rights were violated before the jury could consider the negligent
supervision claim, as the court reasoned that the negligent supervision claim was
Roth claims that the City informed him that the hearing date would be rescheduled and that he
would receive notice of the new hearing date. This is disputed by the City.
We note that Roth does not argue that he failed to receive notice of the denial of his appeal. No
actions were taken by Roth after the denial of his appeal. Roth fails to provide an explanation
for his inaction.
premised on inadequate notice, i.e., a due process violation. Jury Instruction
Number Four stated, “Mr. Roth claims that the City of Newport did not give him
notice reasonably calculated, under all the circumstances, to apprise Mr. Roth of
the pendency of the action and afford him an opportunity to present his appeal.”
Jury Instruction Number Five stated:
Mr. Roth must prove, by a preponderance of the evidence
that (A) a person or persons employed by the City of
Newport violated Mr. Roth’s right to procedural due
process; (B) The City knew, or should have known, that
its employees previous action or omissions made the
violation of Mr. Roth’s rights foreseeable; (C) The City
failed to supervise the employees in an effort to prevent
the violation of Mr. Roth’s rights; and (D) The City’s
failure to supervise its employees caused the violation of
Mr. Roth’s right to procedural due process.
The Special Verdict Question One asked the jury to determine if “you
find by the preponderance of the evidence that the City of Newport did not take
efforts reasonably calculated under all the circumstances to apprise Mr. Roth of the
pendency of the action and afford him an opportunity to present his appeal?” If the
jury answered “no” then they were instructed to return to the courtroom. If the
answer was “yes” then the jury was required to proceed to Special Verdict
Question Two, which required the jury to undertake an analysis of the negligent
supervision elements given in Special Instruction Number Five.
The jury found in favor of the City by answering “no” to Special
Verdict Question One, thereby finding in favor of the City that Roth had received
adequate notice and an opportunity to present his appeal.
On appeal, Roth disagrees with the trial court’s reasoning, and claims
that the trial court erred when it prevented the jury from considering and deciding
his claim for negligent supervision based on the jury instructions and that the court
erred by denying his motion to alter, amend, or vacate, or in the alternative, for a
The City argues that the trial court properly instructed the jury and
properly denied the motion to alter, amend, or vacate, or in the alternative, for a
new trial. Further, the City argues that Roth’s brief should be stricken for failure to
cite to the appellate record4 and that the issues raised on appeal were not properly
preserved for review.
The City is correct in Roth’s argument that the trial court failed to
properly instruct the jury was not properly preserved for review. Under CR 51, the
time to object to jury instructions is prior to the court instructing the jury.5 As
stated in Harris v. Thompson, 497 S.W.2d 422, 431 (Ky. 1973) “if the appellants
were not satisfied with any phase or portion of the instructions the time to speak
was before they were given to the jury.” A review of the record shows that the
trial court provided Roth ample time in which to object and/or tender jury
Pursuant to CR 76.12(8)(a) we may strike a brief “for failure to comply with any substantial
requirement of this Rule 76.12.”
CR 51(3) states
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
Id. See also Harris v. Thompson, 497 S.W.2d 422 (Ky. 1973).
instructions. Roth failed to object until after the court began to instruct the jury.
Therefore, the error was not preserved for our review under CR 51(3).
Even if we assume the objection to the jury instuctions was timely and
the error was preserved, then the City is correct that Roth has failed to adequately
cite to the appellate record as required by CR 76.12(4) (c) (iv) and (v). In Elwell v.
Stone, 799 S.W.2d 46, 48 (Ky.App.1990), we established the principle that, where
an appellant fails to comply with CR 76.12(4)(c)(iv), a reviewing court need only
undertake an overall review of the record for manifest injustice. Thus our review
will be one for manifest injustice.
In Oakley v. Flor-Shin, Inc., 964 S.W.2d 438, 442 (Ky.App. 1998),
this Court pronounced that “the established law in this Commonwealth recognizes
that an employer can be held liable when its failure to exercise ordinary care in
hiring or retaining an employee creates a foreseeable risk of harm to a third
person.” Thus, an employer can be liable for negligent retention/supervision when
the employee commits a negligent or intentional act resulting in injury to the
Liability on the employer is derivative of the employee's commission
of a compensable act. As stated in Scelta v. Delicatessen Support Services, Inc., 57
F.Supp.2d 1327, 1348 (M.D.Fla.1999), “the underlying wrong allegedly committed
by an employee in a negligent supervision or negligent retention claim must be
based on an injury resulting from a tort which is recognized under common law.”
We are not aware of any tort, nor was it argued by Roth that a tort
existed, upon which Roth’s claim of negligent supervision could be based.
Assuming arguendo that the negligent supervision claim was based on a common
law tort claim and, as pled by Roth, that the negligent supervision deprived him of
the notice required under the Due Process Clause, then his claim is necessarily
premised on whether the City provided adequate notice to him. As the jury found
in favor of the City by finding adequate notice under the Due Process Clause to
Roth, his claim based on a violation of the Due Process Clause must fail. It then
follows, necessarily, that the negligent supervision claim based on failure of the
employees of the City to give notice as required by the Due Process Clause to Roth
must also fail.
The trial court properly instructed the jury. The jury found there was
no violation of due process regarding notice. We find that Roth’s negligent
supervision claim, based on the lack of such notice, failed. It must follow, and we
so find, there was no manifest injustice based on the alleged failure of the City to
give notice to Roth.
Last, we disagree with Roth’s argument that the trial court improperly
denied his motion under CR 59.016 to alter, amend, or vacate, or in the alternative,
for a new trial, based upon the inappropriate formulation of instruction to the jury.
We review the denial of a motion for a new trial under the abuse of discretion
standard. Consequently, we will not disturb the trial court's decision unless it was
We note that Roth cites to CR 59.05 but our analysis is more properly under CR 59.01.
clearly erroneous. See McVey v. Berman, 836 S.W.2d 445, 448 (Ky.App. 1992).
As the court properly instructed the jury based on both our established
jurisprudence and Roth’s failure to timely object, the court’s denial of the CR
59.01 motion was not an abuse of discretion.
For the foregoing reasons, we find no error in the reasoning or
decision of the court below, and therefore, affirm the order and judgment of the
Campbell Circuit Court.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Donald R. Nageleisen
Jeffrey C. Mando
Jennifer L. Langen
Gary F. Franke