Joe A. Browder Jr v. Tracey Smith

RENDERED: JULY 2, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1756-MR
JOE A. BROWDER, JR. APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT
v. HONORABLE JOSEPH W. CASTLEN, III, JUDGE
ACTION NO. 16-CI-01129
TRACEY SMITH; JOHN M. SMITH;
KY. FARM BUREAU INS. CO.; AND
USAA GENERAL INDEMNITY CO. APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON, GOODWINE, AND TAYLOR, JUDGES.
GOODWINE, JUDGE: Joe A. Browder (“Browder”) appeals pro se the Daviess
Circuit Court’s trial order and judgment dismissing with prejudice his claims
against Tracey Smith (“Tracey”), John Smith (“John”), and USAA General
Indemnity Company (“USAA”). After careful review, finding no error, we affirm.
On March 27, 2015, Browder was sitting in his car at a red light on
Frederica Street in Owensboro when he was rear ended by a car driven by John.
John was a minor at the time of the accident. Tracey, John’s mother, was a
passenger and the owner of the car driven by John.
On November 23, 2016, Browder brought claims for negligence
against John and Tracey. Browder’s complaint also named Browder’s insurer,
USAA, to recover for underinsured motorist benefits and Tracey and John’s
insurer, Kentucky Farm Bureau Insurance Company.1 Browder alleged he
sustained $200,000 or more in compensatory damages, $200,000 or more in
punitive damages, past and future medical expenses, property damages, and legal
expenses because of the accident.
During the pendency of this case, Browder was represented by at least
four different attorneys and was granted numerous continuances. Browder’s final
attorney first appeared at a hearing on February 2, 2019. During that hearing, a
trial was set for October 7, 2019. At a hearing on October 2, 2019, five days
before the trial was set to begin, the court noted that although counsel made his
best efforts to prosecute Browder’s case, Browder had failed to submit his medical
bills at any point during the three years the case had been pending. The circuit
court orally ruled that due to Browder’s failure to comply with court orders for
1
Kentucky Farm Bureau was dismissed as a party by order entered January 10, 2017.
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nearly three years, “medical bills will not be allowed to be introduced or testimony
regarding them” would not be permitted during trial. Video Record, 10/02/19 at
11:26:55-11:27:06. At the end of the hearing, the circuit court advised counsel to
inform Browder that if he wanted counsel to withdraw or Browder fired counsel,
he would be required to appear at trial with or without counsel.
On October 6, 2019, Browder’s final attorney filed a motion to
withdraw as counsel because Browder had not communicated with him since July
2019, and Browder had filed a pro se petition for writ of mandamus with the Court
of Appeals.2 On October 7, 2019, the day of trial, Browder’s counsel failed to
appear. He was ultimately sanctioned for failing to attend trial but was permitted
to withdraw as counsel on October 15, 2019.
The circuit court held a telephonic hearing on October 14, 2019
regarding rescheduling the trial. However, that hearing was not made part of the
video record. On October 15, 2019, the circuit court entered a sua sponte order
rescheduling the trial for November 12, 2019. The circuit court noted Browder’s
objection to setting a trial date. Browder argued the trial should be continued until
the resolution of former counsel’s contempt hearing and the Court of Appeals ruled
on his petition for writ of mandamus. Despite Browder’s objection, the circuit
2
This Court denied Browder’s motion for intermediate relief under Kentucky Rules of Civil
Procedure (“CR”) 76.36(4) and to proceed in forma pauperis by order entered October 4, 2019
and denied Browder’s petition for writ of mandamus on March 11, 2020.
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court denied his request to continue the trial. The circuit court noted Browder was
the cause of delays and trial continuances, and the court repeatedly warned
Browder that he would be required to prosecute the case pro se unless he was able
to hire another attorney. As such, the circuit court set the trial for November 12,
2019.
On November 7, 2019, the circuit court entered an order denying
Browder’s motion to schedule a jury trial against USAA.
The case ultimately proceeded to trial against John and Tracey on
November 12, 2019. The parties presented the following evidence:
[Browder] presented his case in chief which consisted of
the testimony of John Smith and Tracey Smith.
[Browder] also read into the record a portion of the
deposition of his treating chiropractor, Dr. Trace Kelly.
[Browder] did not testify. Both parties submitted into the
records photographs of the vehicles operated by Plaintiff
Joe Browder and Defendant John Smith on the date of
the accident which is the basis of this litigation. No other
exhibits were tendered to the Court and no other
testimony was introduced into the record by way of
avowal.
Record (“R.”) at 593.
Following Browder’s case-in-chief, John and Tracey “moved for a
directed verdict as to the issue of [Tracey’s] liability” and all of Browder’s
damages claims. Id. Counsel stipulated to John’s liability during his opening
statement.
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The circuit court granted the motion for a directed verdict in full. The
court found Browder failed to produce any evidence of damages for all types of
damages he sought, including: past medical expenses, lost wages and earning
impairment, property damage, punitive damages, and pain and suffering. As to
Tracey’s liability, the circuit court found Browder “did not establish the elements
of negligent entrustment so as to establish a basis of liability against Tracey.” R. at
595. Furthermore, the court found Browder failed to establish Tracey’s liability
under KRS3 186.590(1) as Tracey “had procured the appropriate insurance and
thus that statutory section has no applicability to this case.” Id.
Based on this analysis, the circuit court granted a directed verdict in
favor of John and Tracey, and no issues were submitted to the jury for
consideration. Accordingly, the circuit court dismissed with prejudice all claims
against John, Tracey, and USAA. This appeal followed.
On appeal, Browder, proceeding pro se, raises wholly unsupported
arguments that are likely unpreserved. Browder argued he was not provided access
to the record, yet acknowledged in his brief that he had copies of the paper record,
and his appendix contains written portions of the record. Browder also stated in
his brief that he declined to pay for copies of the video record. Despite having a
copy of the paper record, Browder failed to cite any portions of the record in
3
Kentucky Revised Statutes.
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support of his arguments. Browder also failed to cite any relevant law in support
of these arguments. Thus, we must address the deficiencies in Browder’s brief
under CR 76.12.
“There are rules and guidelines for filing appellate briefs. Appellants
must follow these rules and guidelines, or risk their brief being stricken, and appeal
dismissed, by the appellate court.” Koester v. Koester, 569 S.W.3d 412, 413 (Ky.
App. 2019) (citing CR 76.12). Although Browder filed his brief pro se, “we have
every reason to expect the briefs filed by pro se appellate advocates to demonstrate
a good faith attempt to comport with CR 76.12, our rule for preparing briefs.”
Hallis v. Hallis, 328 S.W.3d 694, 698 (Ky. App. 2010) (citing Louisville and
Jefferson County Metropolitan Sewer Dist. v. Bischoff, 248 S.W.3d 533, 537 (Ky.
2007)).
Browder’s brief fails to provide “ample supportive references to the
record and citations of authority pertinent to each issue of law” and does not
“contain at the beginning of the argument a statement with reference to the record
showing whether the issue was properly preserved for review and, if so, in what
manner” as required by CR 76.12(4)(c)(v). “It is not the function or responsibility
of this court to scour the record on appeal to ensure that an issue has been
preserved.” Koester, 569 S.W.3d at 415 (citing Phelps v. Louisville Water Co.,
103 S.W.3d 46 (Ky. 2003)).
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Our procedural rules “are lights and buoys to mark the channels of
safe passage and assure an expeditious voyage to the right destination.” Bischoff,
248 S.W.3d at 536 (quoting Brown v. Commonwealth, 551 S.W.2d 557, 559 (Ky.
1977)). Therefore, an appellant’s compliance with CR 76.12 allows us to undergo
“meaningful and efficient review by directing the reviewing court to the most
important aspects of the appeal[,] [such as] what facts are important and where
they can be found in the record[.]” Hallis, 328 S.W.3d at 696.
Browder’s failure to comply with CR 76.12 hinders our ability to
review his arguments. See Hallis, 328 S.W.3d at 695-97. “Our options when an
appellate advocate fails to abide by the rules are: (1) to ignore the deficiency and
proceed with the review; (2) to strike the brief or its offending portions, CR
76.12(8)(a); or (3) to review the issues raised in the brief for manifest injustice
only[.]” Id. at 696 (citation omitted). Browder failed to cite any relevant case law,
make any legal argument, or cite to the record. Thus, at the request of all
Appellees, we review for manifest injustice only. “Manifest injustice is ‘[a] direct,
obvious, and observable error[.]’” Trading Post Management Co., LLC v.
Kentucky Unemployment Ins. Comm’n, 355 S.W.3d 451, 454 (Ky. App. 2011)
(quoting BLACK’S LAW DICTIONARY (9th ed. 2009)).
On appeal, Browder argues the circuit court erred in failing to find in
his favor and award him damages. Although Browder “is obviously dissatisfied
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with the trial court’s decision, threadbare recitals of the elements of a legal theory,
supported by mere conclusory statements, form an insufficient basis upon which
this Court can grant relief.” Jones v. Livesay, 551 S.W.3d 47, 52 (Ky. App. 2018).
Apart from reciting one case that is inapplicable in this instance, Browder advances
nothing of substance in support of his contention. We will not scour the record to
construct Browder’s argument for him.
Furthermore, although the circuit court’s trial order and judgment
cites no case law, the court correctly applied relevant case law regarding directed
verdicts, damages, Tracey’s liability, and whether USAA should have been
required to participate at trial. A directed verdict is proper when “there is a
complete absence of proof on a material issue, or if no disputed issue of fact exists
upon which reasonable minds could differ.” Combs v. Stortz, 276 S.W.3d 282, 290
(Ky. App. 2009) (citing Hilsmeier v. Chapman, 192 S.W.3d 340, 345 (Ky. 2006)).
In ruling on a motion for a directed verdict, the trial court must “favor the party
against whom the motion was made with all inferences which may reasonably be
drawn from the evidence.” Id.John stipulated to his liability during counsel’s opening statement.
Thus, the only matters addressed at trial were Browder’s damages and Tracey’s
liability. The circuit court determined Browder failed to introduce evidence of any
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damages, including past medical expenses, lost wages and earning impairment,
property damage, punitive damages, and pain and suffering.
First, the circuit court correctly granted a directed verdict against
Browder on his claim for past medical expenses. KRS 304.39-060(2)(b) sets forth
the requirements for recovering medical expenses in a motor vehicle tort claim:
In any action of tort brought against the owner, registrant,
operator or occupant of a motor vehicle with respect to
which security has been provided as required in this
subtitle, or against any person or organization legally
responsible for his or her acts or omissions, a plaintiff
may recover damages in tort for pain, suffering, mental
anguish and inconvenience because of bodily injury,
sickness or disease arising out of the ownership,
maintenance, operation or use of such motor vehicle only
in the event that the benefits which are payable for such
injury as “medical expense” or which would be payable
but for any exclusion or deductible authorized by this
subtitle exceed one thousand dollars ($1,000), or the
injury or disease consists in whole or in part of
permanent disfigurement, a fracture to a bone, a
compound, comminuted, displaced or compressed
fracture, loss of a body member, permanent injury within
reasonable medical probability, permanent loss of bodily
function or death. Any person who is entitled to receive
free medical and surgical benefits shall be deemed in
compliance with the requirements of this subsection upon
a showing that the medical treatment received has an
equivalent value of at least one thousand dollars
($1,000).
Under this statute, “an injured party is entitled to proceed under two
theories: monetary damages for reasonably necessary medical expenses exceeding
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$1,000 and specifically enumerated physical or permanent injuries, loss, or death.”
Combs, 276 S.W.3d at 289. The legislature defined “medical expense” as follows:
“Medical expense” means reasonable charges incurred
for reasonably needed products, services, and
accommodations, including those for medical care,
physical rehabilitation, rehabilitative occupational
training, licensed ambulance services, and other remedial
treatment and care. “Medical expense” may include non-
medical remedial treatment rendered in accordance with
a recognized religious method of healing. The term
includes a total charge not in excess of one thousand
dollars ($1,000) per person for expenses in any way
related to funeral, cremation, and burial. It does not
include that portion of a charge for a room in a hospital,
clinic, convalescent or nursing home, or any other
institution engaged in providing nursing care and related
services, in excess of a reasonable and customary charge
for semi-private accommodations, unless intensive care is
medically required. Medical expense shall include all
healing arts professions licensed by the Commonwealth
of Kentucky. There shall be a presumption that any
medical bill submitted is reasonable.
KRS 304.39-020(5)(a).
In order to recover damages for “medical expenses,” a plaintiff must
introduce medical bills at trial. See Buckler v. Mathis, 353 S.W.3d 625, 630 (Ky.
App. 2011). Then, “the burden is on the defendant to go forward with proof to
impeach the bill.” Id.Here, the circuit court did not permit Browder to introduce his
medical bills into evidence at trial because he failed to provide them in discovery
at any time during the three years this case was pending. As there was no factual
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basis to submit the issue of medical expenses to the jury, the circuit court correctly
granted a directed verdict as to the issue of medical expenses.
Second, the circuit court correctly granted a directed verdict against
Browder as to his alleged lost wages and earning impairment. KRS 304.39-
020(5)(b) defines “work loss” as “loss of income from work the injured person
would probably have performed if he had not been injured, and expenses
reasonably incurred by him in obtaining services in lieu of those he would have
performed for income, reduced by any income from substitute work actually
performed by him.” To recover benefits for work loss, a plaintiff must provide
“reasonable proof of the fact and amount of loss realized” under KRS 304.39-
210(1). Kentucky Farm Bureau Mut. Ins. Co. v. Troxell, 959 S.W.2d 82, 84 (Ky.
1997).
Here, Browder failed to provide an itemization for lost wages or
earning impairment in his written discovery responses. In his deposition, Browder
testified he was not making a claim for lost wages or earning impairment.
Furthermore, Browder did not testify or submit any evidence regarding these items
of damages at trial. Thus, the circuit court correctly concluded there was an
absence of proof and granted a directed verdict as to lost wages or earning
impairment.
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Third, the circuit court correctly granted a directed verdict as to
property damage. “[T]he proper measure of damages for injury to personal
property is the difference in the fair market value of the property before and after
the accident.” McCarty v. Hall, 697 S.W.2d 955, 956 (Ky. App. 1985) (citations
omitted). To prove a claim for property damage, “[e]vidence in the form of a
repair bill standing alone and unassailed is not only probative evidence of the
difference in fair market value of personal property, it is sufficient to sustain a
verdict for damage to same.” Id.Here, the circuit court found Browder introduced no evidence at trial
to establish the difference in fair market value before and after the accident.
Additionally, Browder failed to introduce any testimony or documents regarding
the actual cost to repair his vehicle. Thus, as there was an absence of proof of
property damage, the circuit court correctly granted a directed verdict on this issue.
Fourth, the circuit court correctly granted a directed verdict as to
punitive damages. “[T]he well established common law standard for awarding
punitive damages was [and is] gross negligence.” Kinney v. Butcher, 131 S.W.3d
357, 358-59 (Ky. App. 2004) (quoting Williams v. Wilson, 972 S.W.2d 260, 264
(Ky. 1998)). The prevailing definition of “gross negligence” is “wanton or
reckless disregard for the safety of other persons.” Id. at 359 (quoting Phelps, 103
S.W.3d at 52). Proof of express malice is not required; “rather, it is possible that a
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certain course of conduct can be so outrageous that malice can be implied from the
facts of the situation.” Id. (citing Phelps, 103 S.W.3d at 52).
Here, the circuit court found Browder introduced no testimony or
exhibits establishing gross negligence as to John’s conduct. Instead, the court
determined Browder merely established ordinary negligence on John’s part.
Additionally, Browder failed to include a claim for punitive damages in his
discovery responses or in his itemization of damages. Thus, in the absence of any
proof, the circuit court correctly granted a directed verdict on the issue of punitive
damages.
Fifth, the circuit court correctly granted a directed verdict as to pain
and suffering. Generally, “no rule can be laid down by which damages
for pain and suffering in a personal injury case may be accurately measured.”
Stanley v. Caldwell, 274 S.W.2d 383, 385 (Ky. 1954). However, a plaintiff must
submit evidence to support an award of pain and suffering. Spalding v. Shinkle,
774 S.W.2d 465, 467 (Ky. App. 1989) (quoting American States Ins. v. Audubon
Country Club, 650 S.W.2d 252, 254 (Ky. 1983)). A claim for pain and suffering
can be submitted to the jury based on the plaintiff’s own “testimony and proof.”
Id. (citing Williams v. Kirtley, 263 S.W.2d 119 (Ky. 1953)).
Here, Browder did not testify on his own behalf during the trial. The
circuit court found he provided “no testimony as to any pain and suffering,” no
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testimony “as to any medical expenses, nor did he introduce into evidence the
amount of his admissible medical bills nor any documents regarding the nature of
any treatment he claimed as a result of the accident in this case.” R. at 595. Thus,
in the absence of any proof, the circuit court properly granted a directed verdict on
the issue of pain and suffering.
Next, the circuit court correctly granted a directed verdict on the issue
of Tracey’s liability. Even if Browder had presented evidence proving Tracey’s
liability, he failed to submit any proof of damages. Without proof of damages,
Browder can recover nothing from Tracey, and her liability is a moot issue.
Finally, Browder’s citation to Coots v. Allstate Insurance Company,
853 S.W.2d 895 (Ky. 1993), is misplaced. In addition to appealing the trial order
and judgment, Browder appeals the circuit court’s November 7, 2019 order
denying Browder’s pro se motion to schedule a jury trial against USAA. Coots
governs whether a underinsured motorist [UIM] carrier must participate at trial:
[W]hen a UIM carrier has reached a Coots settlement, the
tortfeasor is “released from any further liability to the
injured party[.]” True v. Raines, 99 S.W.3d 439, 448
(Ky. 2003) (emphasis added). In such circumstances, to
permit the UIM carrier “to either participate or sit idly by
and allow the tortfeasor to defend at trial, [is to hide] the
identity of a bona fide party.” Earle [v. Cobb, 156
S.W.3d 257, 261 (Ky. 2004)]. When the UIM carrier has
not reached a Coots settlement with the tortfeasor, the
tortfeasor remains primarily liable to the plaintiff. The
UIM carrier is only potentially liable, contingent upon a
judgment in excess of the tortfeasor’s own liability
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coverage. Because the tortfeasor remains a real party in
interest, no legal fiction is created for the jury. The jury
considers an actual case in tort between the injured party
and the tortfeasor and decides liability and damages.
Any liability of the UIM carrier to the tortfeasor or the
injured party is ancillary to the jury’s determinations in
this regard, and then any such liability exists in contract.
Mattingly v. Stinson, 281 S.W.3d 796, 798 (Ky. 2009).
Here, Browder did not reach a settlement with USAA, so the
tortfeasors, John and Tracey, remained primarily liable to Browder. USAA elected
not to participate at trial because, under Coots, its liability was contingent on a
judgment in excess of John and Tracey’s liability coverage. Above, we held the
circuit court correctly granted a directed verdict in John and Tracey’s favor due to
Browder’s failure to submit any proof of damages resulting from his claims against
John and Tracey. Because no judgment or award of damages was entered against
John or Tracey, it was impossible for the circuit court to enter an award of
damages in excess of the available liability coverage against USAA. Therefore,
the circuit court did not err in denying Browder’s motion to schedule a jury trial
against USAA. As such, we conclude Browder did not suffer manifest injustice
when the circuit court: (1) denied his motion to schedule a jury trial against USAA
and (2) granted a directed verdict in John’s and Tracey’s favor and dismissed the
complaint with prejudice.
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For the foregoing reasons, we affirm the trial order and judgment of
the Daviess Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEES,
TRACEY SMITH AND JOHN
Joe A. Browder, Jr., pro se SMITH:
Louisville, Kentucky
Michael T. Lee
Owensboro, Kentucky
BRIEF FOR APPELLEE,
USAA GENERAL INDEMNITY
COMPANY:
Brandon T. Lally
Elizabethtown, Kentucky
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