Allison Bailey v. Jessica Morris ( 2023 )

RENDERED: JANUARY 6, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1504-MR
ALLISON BAILEY AND
HAYLEE VANCE APPELLANTS
APPEAL FROM ESTILL CIRCUIT COURT
v. HONORABLE MICHAEL DEAN, JUDGE
ACTION NO. 17-CI-00102
JESSICA MORRIS APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CETRULO, JONES, AND MCNEILL, JUDGES.
CETRULO, JUDGE: The Appellants, Allison Bailey and Haylee Vance (“Bailey
& Vance”), appeal from the denial by the Estill Circuit Court of their motion for a
new trial due to improper remarks made by opposing counsel during closing
statements. After review, we affirm.
I. FACTS AND BACKGROUND
In March 2017, Bailey & Vance were passengers in a Dodge Caravan
being driven by Appellee, Jessica Morris (“Morris”), when a collision occurred. A
truck driven by the now-deceased Kenneth Calhoun crossed over the double-
yellow center line into the path of the Dodge Caravan traveling in the opposite
direction. Morris later testified that she saw the truck cross into her lane, but was
unable to avoid a sideswipe collision. After the initial impact with the truck,
Morris was unable to maintain control of the Dodge Caravan and struck a Buick
Lacrosse head-on. All parties suffered severe injuries.
After years of legal proceedings and various settlements, Bailey &
Vance continued to trial in October 2021. Bailey & Vance alleged that Morris was
negligent in her operation of the Dodge Caravan and failed to take reasonable
actions to avoid or mitigate the collisions. More specifically, Bailey & Vance
alleged that Morris did not brake nor move to the right because she was most likely
distracted by her cell phone, and therefore bore some of the fault. However,
Morris argued that she did brake and move to the right prior to the initial collision.
Despite Bailey & Vance’s argument hinging on Morris’s cell phone use, the parties
stipulated – and filed that stipulation with the court – that “neither Party shall
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either discuss or offer cellular phone records as evidence herein.”1 However,
throughout the trial, both sides asked witnesses and experts questions relating to
Morris’s cell phone use prior to the collision. No objection related to the
stipulation was made until the closing arguments. During closing arguments,
Morris’s legal counsel stated:
We’ve heard all sorts of testimony about [Morris]
accessing her phone during the ride from Jabez,
Kentucky. [Morris] said she wasn’t using her phone at
the time of the accident. At the time of the accident
Allison had turned from the front seat to the back and
was talking to Haylee. That’s why none of them saw
what was going on on the road. And yet, they tell you
she was using her cell phone. There’s been no forensic
expert witness that’s come forward to testify that the cell
phone was in use at the time of the accident. Why is
that?
After Morris’s legal counsel stated those words, Bailey & Vance
objected and asked for a bench conference. The audio-only record is at times
difficult to understand but is sufficient for our analysis.
Bailey & Vance Counsel: We have a stipulation on this that we submitted.
Remember you told us to put them in writing, and
we did.
[. . . inaudible in part2]
1
Bailey & Vance argued that the cell phone records themselves were highly technical and would
require an expert to introduce them, “which neither party had.”
2
We take notice that at some point in the bench conversation, Bailey & Vance Counsel is heard
stating “mistrial,” but the rest of the sentence is inaudible. We presume the request for a mistrial
based on the rest of the conversation and the subsequent pleadings.
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Morris Counsel: Our stipulation was that we weren’t going to
comment about the particular cell phone records.
...
Judge: If it wasn’t introduced into evidence how can
comment on it in closing?
Morris Counsel: Excuse me?
Judge: It wasn’t introduced into evidence, was it?
Unknown: No.
Judge: Then you can’t comment on it.
Morris Counsel: I said there was an absence of proof.
Judge: No, you can’t comment on it.
Morris Counsel Ok, [Bailey & Vance’s expert] talked about that
during his testimony. He said there was no
forensic proof . . . a question about that.
[inaudible]
Judge: I’m going to sustain the objection.
Morris Counsel: Alright.
Bailey & Vance Counsel: Judge, will you admonish the jury, please?
Judge: No, I’m not going to do that.
With no admonition, the closing arguments continued. After
deliberation, the jury awarded Haylee Vance $1,050,000 and Allison Bailey
$215,000 in damages; however, the jury assigned no fault to Morris. The jury
assigned 90% of the fault to the driver of the truck who initially crossed the center
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line and 10% fault to each passenger, Bailey & Vance, presumably for failing to
correctly wear their seatbelts.
After the jury verdict, Bailey & Vance filed a motion to alter, amend,
or vacate the judgment, or alternatively motion for a new trial. Bailey & Vance
argued that counsel for Morris violated the written stipulation and poisoned the
jury. The trial court denied the motion. This appeal resulted.
II. STANDARD OF REVIEW
The Order denying the motion to alter, amend, or vacate the judgment
pursuant to Kentucky Rule of Civil Procedure (“CR”) 59.053 is interlocutory and
non-appealable. Ford v. Ford, 578 S.W.3d 356, 365-66 (Ky. App. 2019) (internal
quotation marks and citations omitted) (“When a trial court denies a CR 59.05
motion, and a party erroneously designates that order in his or her notice of appeal,
we utilize a substantial compliance analysis and consider the appeal properly taken
from the final judgment that was the subject of the CR 59.05 motion.”). Similarly,
an order denying a motion for a new trial pursuant to CR 59.01 is not a final order
and is not appealable as such. Hardin v. Waddell, 316 S.W.2d 367, 368 (Ky.
1958). However, we may review the trial court’s final judgment, i.e., the trial
3
Bailey & Vance’s motion states it was pursuant to CR 50.01, but that is a motion for a directed
verdict, which is not consistent with their argument. Consistent with the motion’s header and
argument, we will treat it as pursuant to 1) CR 59.05, a motion to alter, amend, or vacate a
judgment, and 2) CR 59.01(a) which states grounds for a new trial including an irregularity in the
proceedings of the court, or an order of the court, or abuse of discretion, by which the party was
prevented from having a fair trial.
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court’s decision to overrule the motion for a new trial during the bench conference.
Ford, 578 S.W.3d at 366. See also Embry v. Turner, 185 S.W.3d 209, 213 (Ky.
App. 2006).
As a general rule, the decision of a trial court to overrule
a motion for new trial will not be disturbed on appeal
absent a manifest error or abuse of discretion. In
undertaking our analysis of the trial judge’s eventual
decision not to allow a new trial here, we must be
mindful that the decision is presumptively correct, and
that we cannot reverse unless it was clearly erroneous.
Id. (internal quotation marks and citations omitted).
Additionally, the proper standard for review of evidentiary rulings
is abuse of discretion. Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d
575, 577 (Ky. 2000). As such, we review the failure of the trial court to provide
relief – after sustaining the objection of Bailey & Vance to the stipulation violation
– under the same standard of review as the final judgment.
“The test for abuse of discretion is whether the trial judge’s decision
was arbitrary, unreasonable, unfair or unsupported by sound legal principles.”
Id. at 581 (citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)).
III. ANALYSIS
On appeal, Bailey & Vance argue that the trial court committed
reversible error when it failed to provide a curative remedy – an admonition or
mistrial – after sustaining their objection to opposing counsel’s stipulation
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violation during closing arguments. Conversely, Morris argues that even if the
trial court erred by failing to admonish the jury, that error does not rise to the level
of abuse of discretion warranting a mistrial.
Generally, written stipulations “are of two classes: One relating to
evidence, i.e., consisting of an agreed statement of fact, and the other relating to
procedure.” World Fire & Marine Ins. Co. v. Tapp, 151 S.W.2d 428, 430 (Ky.
1941). Here, it relates to procedure, with the apparent intent – according to Bailey
& Vance – to increase “trial efficiency, order and fairness.” Although Morris
briefly attempts to argue that she did not technically violate the stipulation –
because counsel did not expressly say “cell phone data” – we are not convinced.
The parties stipulated that they would not “discuss or offer cellular
phone records as evidence herein.” However, closing arguments of Morris
included “. . . they tell you she was using her cell phone. There’s been no forensic
expert witness that’s come forward to testify that the cell phone was in use at the
time of the accident.” That statement appears to be a violation of the stipulation,
although it was not a carefully worded stipulation. The parties could have easily
included in their agreement that all counsel were precluded from commenting upon
the absence of that evidence. They did not. Counsel for Morris responded to the
objection by stating essentially that, i.e., the comment was upon the absence of cell
phone records or evidence presented by the plaintiff appellants who bore the
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burden of proof at trial. Still, our focus is on the effect of the improper closing
argument on the jury. Attorneys are allowed great latitude in their closing
arguments. They may draw reasonable inferences from the evidence and propound
their explanations of the evidence and why the evidence supports their respective
theories of the case. “However, they may not argue facts that are not in evidence
or reasonably inferable from the evidence.” Garrett v. Commonwealth, 48 S.W.3d
6, 16 (Ky. 2001) (internal quotation marks and citations omitted).
Admonitions can be easy cures to erroneous arguments or admissions
of evidence. See Graves v. Commonwealth, 17 S.W.3d 858, 865 (Ky. 2000).4 See
also Jacobsen v. Commonwealth, 376 S.W.3d 600, 610 (Ky. 2012). Admonitions
are usually sufficient, and there is a presumption that the jury will heed such an
admonition. Matthews v. Commonwealth, 163 S.W.3d 11, 17 (Ky. 2005) (citations
omitted). “An admonition to the jury to disregard an improper argument cures the
error unless it appears the argument was so prejudicial, under the circumstances of
the case, that an admonition could not cure it.” Jefferson v. Eggemeyer, 516
S.W.3d 325, 338 (Ky. 2017) (citing Price v. Commonwealth, 59 S.W.3d 878, 881
(Ky. 2001)).
4
Much of our caselaw regarding admonitions is rooted in criminal law, but we find the precedent
to be guiding and helpful in this civil matter.
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The trial court did not offer the requested relief, although it did sustain
the objection of Vance & Bailey. While we believe an admonition would have
been a reasonable remedy to cure the improper closing argument comment, that
failure does not warrant a mistrial under these circumstances.
This Court has explained that
[e]ven if an argument is improper . . . the question
remains whether the probability of real prejudice is
sufficient to warrant a reversal. In making this
determination, each case must be judged on its unique
facts. An isolated instance of improper argument, for
example, is seldom deemed prejudicial.
Rockwell Int’l Corp. v. Wilhite, 143 S.W.3d 604, 631 (Ky. App. 2003) (citations
omitted).
During the trial, both parties spent considerable time – through expert
and witness testimony – arguing around the issue of Morris’s cell phone use. Was
she using her phone to switch songs just before the collision? Was she texting her
mother about their evening plans? Or was she still eating her Wendy’s? “[I]t is
the presence of real and tangible prejudice that creates the need for a mistrial.”
Commonwealth v. Padgett, 563 S.W.3d 639, 647 (Ky. 2018). It is not likely that
this one comment – hinting to the absence of evidence in the form of cell phone
data – was significantly prejudicial considering the extent of the cell phone-related
conversation throughout the two-day trial.
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Additionally, the use or non-use of Morris’s cell phone did not change
the underlying fault established by testimony: 1) Kenneth Calhoun’s truck crossed
the center line and caused the accident, and 2) Vance & Bailey were not correctly
wearing their seatbelts, which likely exacerbated their injuries.
A trial court only declares a mistrial if a harmful event is
of such magnitude that a litigant would be denied a fair
and impartial trial and the prejudicial effect could be
removed in no other way. Stated differently, the court
must find a manifest, urgent, or real necessity for a
mistrial. The trial court has broad discretion in
determining when such a necessity exists because the
trial judge is best situated intelligently to make such a
decision.
Matthews v. Commonwealth, 163 S.W.3d 11, 17 (Ky. 2005) (internal quotation
marks and citations omitted).
Understanding that the trial court is best situated to assess the effect of
the improper remarks, we give the trial court its due discretion. The violation of
the stipulation was not sufficiently prejudicial to deny a fair trial. The trial court
acted within its discretion in concluding that an admonition could have brought
more attention of the missing data to the jury. It was clear from the evidence that
Kenneth Calhoun caused the accident, and the jury believed Vance & Bailey bore
some responsibility for their own injuries. Here, one improper statement made in
closing arguments did not necessitate a new trial.
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IV. CONCLUSION
We are not persuaded that the trial court abused its discretion by
deciding against a mistrial. The closing argument of Morris included an improper
remark, but it was isolated and was not inflammatory in the context of the two days
of evidence. Accordingly, we AFFIRM the Judgment of the Estill Circuit Court.
MCNEILL, JUDGE, CONCURS.
JONES, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
JONES, JUDGE, DISSENTING: Respectfully, I dissent. I would
vacate the judgment in favor of the Appellee and remand for a new trial.
As noted in the majority Opinion, the Appellants had obtained cell
phone records but planned not to introduce them at trial because they were highly
technical and would have likely required expert testimony by both parties for the
jury to have made sense of them. During the pretrial proceedings, the parties
reached an agreed stipulation that neither party would “discuss or offer cellular
phone records as evidence herein.” The parties, however, did not agree that they
would not present any evidence regarding whether the Appellee was using her cell
phone at the time of the accident. In fact, the central theory of Appellants’
negligence case against the Appellee was that, because Appellee was using her cell
phone immediately prior to the accident, she was distracted and did not take
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reasonable steps to avoid further collision after the Nissan crossed over the center
line.
At trial, whether Appellee was using or was distracted by her cell at
the time the Nissan crossed over the centerline was an issue of contention. During
closing arguments, in direct contravention of the parties’ agreed stipulation not to
mention the cell phone records, Appellee’s counsel suggested to the jury that they
should perhaps infer that Appellants would have produced the cell phone records
had Appellee in fact been using her phone. Even though the trial court agreed with
Appellants that this reference violated the parties’ stipulation and sustained the
objection on that basis, it refused to either declare a mistrial or give an admonition
as requested by Appellants.
Given that the improper argument went to the Appellants’ central
theory of the case, and the nature of the closing argument, which planted in the
jury’s mind that Appellants would have produced the cell phone records if the
records, in fact, supported Appellants’ theory of the case, I cannot agree that the
trial court’s failure to give an admonition in this case was not prejudicial. Matters
v. Commonwealth, 245 S.W.2d 913, 914 (Ky. 1952).
In fact, I am convinced that, in determining whether the Appellee was
using her cell phone or not, the jury may have very well focused on the absence of
the cell phone records as somewhat dispositive. It seems that modern-day jurors
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have come to equate the failure to produce certain scientific evidence with its non-
existence; this is often known as the “CSI or tech effect.” Michael Johnson, The
“CSI Effect”: TV Crime Dramas’ Impact on Justice, 15 CARDOZO PUB. L. POL’Y &
ETHICS J. 385, 396 (2017).
Accordingly, I would vacate the judgment and remand for a new trial.
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEE:
Daniel Frederick John G. Irvin, Jr.
West Liberty, Kentucky Lexington, Kentucky
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