William Allen v. Timothy M. Wheeler, M.D.

RENDERED: FEBRUARY 5, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2018-CA-1830-MR
WILLIAM ALLEN APPELLANT
APPEAL FROM BOYD CIRCUIT COURT
v. HONORABLE GEORGE W. DAVIS, III, JUDGE
ACTION NO. 14-CI-00902
TIMOTHY M. WHEELER, M.D. APPELLEE
AND NO. 2019-CA-0023-MR
TIMOTHY WHEELER, M.D.; CLAY
A. EDWARDS; CHRISTOPHER J.
LEOPOLD; AND O’BRYAN BROWN
& TONER, PLLC CROSS-APPELLANTS
CROSS-APPEAL FROM BOYD CIRCUIT COURT
v. HONORABLE GEORGE W. DAVIS, III, JUDGE
ACTION NO. 14-CI-00902
WILLIAM ALLEN CROSS-APPELLEE
OPINION
AFFIRMING IN PART, VACATING IN PART,
AND REMANDING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; K. THOMPSON AND L. THOMPSON,
JUDGES.
THOMPSON, K., JUDGE: William Allen appeals from a jury verdict awarding
him zero dollars for pain in suffering despite finding Timothy Wheeler, M.D. was
fifty percent at fault in Allen’s medical malpractice case. Dr. Wheeler and his
counsel cross-appeal from the trial court’s decision awarding Allen the costs he
incurred for a previous trial which resulted in a mistrial after Wheeler’s counsel
asked Allen’s wife about her having once been a plaintiff. We affirm as to the
jury’s decision to award Allen no damages but vacate and remand the deficient
costs order.
Dr. Wheeler performed hemorrhoid surgery on Allen on April 1,
2014. Allen was discharged from the hospital later that day, but he returned that
night because he was unable to urinate or defecate. A catheter was inserted, which
helped alleviate Allen’s pain, and he was again sent home early on April 2.
Allen called Dr. Wheeler’s office later that morning and spoke to a
nurse, Katy Sebastian. At trial, Allen testified he told Sebastian of his pain,
inability to defecate, having a knot in his buttocks, and believing he had an
infection. Allen said he would have gladly gone to see Dr. Wheeler that day if
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given the opportunity. Sebastian did not specifically recall speaking with Allen but
testified that it is her practice to offer each patient calling with post-operative
concerns the opportunity to be seen by Dr. Wheeler that same day and generally to
instruct them to go to the emergency room if necessary.
It is uncontested that Allen neither saw Dr. Wheeler nor went to the
emergency room on April 2. In addition, Allen did not seek medical attention on
April 3. Allen indicated he did not do so because he believed from talking with
Sebastian that his pain and discomfort were natural consequences of the surgery.
On April 4, Allen called Dr. Wheeler’s office and was told to go to the
emergency room or wait to be seen the following week as Dr. Wheeler was on
vacation. About five hours later, Allen went to the emergency room, where he was
diagnosed with an infection and abscess in his buttocks which necessitated surgery,
including a colostomy. Later, Allen had surgery to reverse the colostomy and
another surgery on his anus.
Allen sued Dr. Wheeler for medical malpractice in November 2014.
Originally, Allen’s wife, Barbara Allen, was a named plaintiff, raising loss of
consortium claims. Protracted discovery ensued.
Eventually, the case was set for a trial to be held in October 2017.
The court required Allen to submit an itemization of his damages by June 2017.
However, the Allens submitted an itemization of damages which only stated “will
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supplement” regarding incurred medical expenses. Consequently, Dr. Wheeler
moved to strike the request for medical expenses. Unusually, the Allens agreed,
and asked the trial court to dismiss their claim for medical damages. In fact, the
Allens filed a motion in limine asking the trial court to prohibit testimony about
Allen’s medical expenses. The trial court granted the motion to strike the claim for
medical expenses and the motion in limine.
Despite their earlier position, the Allens filed a motion asking the
court to reconsider striking the claim for medical expenses because their counsel
had recently learned her assistant had provided a medical expense summary to Dr.
Wheeler’s counsel over two months before the itemization deadline. Although it is
difficult to discern with reliable precision, the apparent theory underlying the
motion was that Dr. Wheeler thus already knew the rough amount of medical
expenses the Allens claimed prior to the damage itemization deadline. The court
summarily denied the motion to reconsider.
About three days before the October 2017 trial, Barbara Allen
voluntarily dismissed her consortium claims, leaving William Allen as the only
plaintiff.1 Consequently, after opening statements at trial, the court agreed with Dr.
Wheeler’s counsel that it would be inappropriate for Barbara to be asked about the
effects on her of William’s illness or medical care. Nonetheless, on direct, cross
1
Hereafter, unless otherwise indicated, references to “Allen” will be to William Allen.
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and re-direct examinations, both sides asked Barbara questions about her
relationship with William, such as whether they were still living together, whether
there had been infidelity in their marriage, and what her hopes were for her future
relationship with William. When Dr. Wheeler’s counsel objected to the future
relationship question, at a bench conference the court said the “door is wide open”
since both parties had asked that type of question.
On re-cross-examination, Dr. Wheeler’s counsel asked Barbara: “And
in fairness, Mrs. Allen, you were a plaintiff in this case until last week, weren’t
you? And you dismissed your claim?” Before Barbara responded, Allen’s counsel
objected, and a bench conference ensued. At the bench, the court stated it was
appalled at Dr. Wheeler’s counsel and asked Allen’s counsel what relief they
requested. When counsel asked for time to consider the matter the court recessed
for the day. The next morning, the court denied Allen’s request to reinstate
Barbara’s consortium claims, and instead offered Allen two options: a “strong”
admonition or a mistrial (which the court stated it believed was appropriate), with
costs to be assessed on Dr. Wheeler’s counsel. Allen moved for a mistrial and,
over the objection of Dr. Wheeler, the court granted the motion. The court did not
state that Dr. Wheeler’s counsel was in contempt. In fact, the court stated Dr.
Wheeler probably could have “got this in,” presumably referring to notifying the
jury of Barbara Allen’s former consortium claims, at the end of the trial via
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submitting the pleadings. The court scheduled a hearing for November 2017 to
determine the amount of costs to be assessed and to set a new trial date.
In late October, Allen’s counsel submitted roughly $30,000 in costs,
the majority of which was a fee for an expert who was already en route when the
mistrial was declared. In early November 2017, the trial court held a hearing on
the costs, but it did not issue a ruling. The court set a new trial date but did not set
a new discovery deadline, nor was it asked to do so.
In the interval between trials, Allen submitted a new witness list
which contained three new, previously undisclosed names. Though the list was
submitted many months prior to the scheduled retrial, the court struck the three
newly listed names and precluded those witnesses from testifying. The court also
again denied Allen’s motion to reconsider its order dismissing his claim for
medical expenses. Thus, when the second trial began in September 2018, Allen
again was the only plaintiff and his only viable claim was for pain and suffering.
At the close of the multi-day trial, the jury returned a verdict finding
Allen and Dr. Wheeler each fifty percent at fault for Allen’s injuries but awarding
him zero dollars for his pain and suffering. Dr. Wheeler’s counsel orally asked the
court in the alternative for a mistrial on all issues or for the court to instruct the
jury that they needed to resume deliberations because their verdict is inconsistent
with Kentucky law; Allen’s counsel requested a mistrial and a new trial on
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damages only, objecting to any directive requiring the jury to commence additional
deliberations. The court eventually dismissed the jury and asked the parties to
submit written briefs. After briefing, in November 2018, the court issued a one-
page order which stated in relevant part that:
However, odd [though] it may be, there exists a scenario
wherein the jury, not believing the [entirety] of [Allen’s]
evidence, found [Dr. Wheeler’s] negligence to be a
substantial factor, but not necessarily the only factor in
causation of [Allen’s] damages. Thus, it is possible the
Jury could have determined [Dr. Wheeler’s] negligence
was not the cause of damages related to [Allen’s] pain
and suffering.
Allen then timely filed appeal 2018-CA-1830-MR on December 7,
2018.
Three days later, the trial court issued its extremely belated order
granting plaintiff expenses related to October 2017 mistrial. Without explaining
the roughly thirteen-month delay in its issuance, the order stated it was appropriate
to award Allen a total of $29,967.46 in costs incurred for the proceeding which
ended in a mistrial. Curiously, the order stated that the mistrial was caused by Dr.
Wheeler’s counsel “inadvertently raising an issue with a witness that had
previously been prohibited by the Court and which could not be cured by an
admonishment to the jury.” Id. The order did not find Dr. Wheeler’s counsel to be
in contempt, nor did it cite any authority (precedent, Kentucky Rules of Civil
Procedure (CR) or Kentucky Rules of Evidence (KRE)) as a basis for awarding
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costs to Allen. In fact, though the court had orally stated that Dr. Wheeler’s
counsel—not Dr. Wheeler—would be responsible for paying Allen’s trial costs,
the order nonspecifically provided that Allen “shall be awarded the amount of
$29,967.46 in costs related to the mistrial that Defense counsel caused in this civil
action, as detailed above.” Id. In other words, the order specified neither the legal
grounds upon which it was based nor who had to pay Allen’s costs. Dr. Wheeler
and his counsel then filed cross-appeal 2019-CA-0023-MR. Because both appeals
stem from the same circuit court case and operative facts, we will resolve both in
this opinion.
We will address Allen’s appeal first, beginning with the trial court’s
pretrial decisions (declining to reinstate Allen’s medical expense claim and refusal
to permit the newly disclosed witnesses from testifying at the second trial).
On February 8, 2017, the trial court signed an agreed order which,
among other things, required the parties to “file witness lists, exhibit lists and
itemization of damages by June 21, 2017.” Record (R.) at 526. For whatever
reason, Allen’s itemization did not include specific damages for his medical
expenses. As a result, Allen himself asked the court to dismiss his medical
damages claim and additionally filed a motion in limine asking the court to prohibit
Dr. Wheeler from mentioning medical damages at trial. Nonetheless, Allen
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abruptly reversed course and contends the trial court erred by not also doing so.
We disagree.
Allen, remarkably, is asserting error in the trial court taking the exact
course of action he requested. Of course, those requested acts stem from Allen’s
inexplicable failure to comply with the deadlines contained in an agreed order.
Allen cites nothing which causes us to find an abuse of discretion, or any error
whatsoever, in the trial court’s decision to enforce its pretrial disclosure deadlines.
See, e.g., Bramblett v. Penske Truck Leasing Company, L.P., 598 S.W.3d 567, 573
(Ky.App. 2019) (holding that a trial court has “broad discretion in addressing a
violation of its orders regarding discovery” and that we review its sanctions
determinations for abuse of discretion); Quattrocchi v. Nicholls, 565 S.W.3d 622,
630 (Ky.App. 2018) (“It is well within a trial court’s discretion to find that
noncompliance with a scheduling order . . . justifies the exclusion of evidence.”).
Even now, Allen has not explained why he did not timely submit his
medical expense itemization. Allen has not shown any compelling reason why the
trial should have revisited its decision to dismiss Allen’s medical expense claim at
Allen’s behest. Allen cannot successfully argue that the trial court erred to his
prejudice by giving him what he requested.
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Similarly, we readily conclude the trial court did not err, or abuse its
discretion, by declining to let Allen’s belatedly disclosed witnesses testify at the
second trial. Allen has not explained why he did not disclose the new witnesses
before the mistrial. And Allen did not request discovery be reopened after the
mistrial. Finally, Allen has failed to present any avowal testimony or otherwise
show what the expected testimony of the excluded witnesses would have been
and/or how their testimony would have been materially different than other
witnesses who generally observed Allen’s condition and its impact on his life. In
short, Allen has failed to demonstrate any quantifiable prejudice or any authority
mandating that he be permitted to let witnesses testify at a retrial when they were
not disclosed prior to the first trial.
We now come to the heart of Allen’s appeal—his contention that the
zero-dollar verdict after the second trial cannot stand. After analyzing the parties’
briefs, the record, and applicable law, we disagree.
We “acknowledge at the outset that an award of zero damages for pain
and suffering is not necessarily inadequate as a matter of law.” Dennis v.
Fulkerson, 343 S.W.3d 633, 635 (Ky.App. 2011). Thus, the verdict is not
inherently improper. Our task is to “review the record to determine whether a
‘zero’ award for damages was supported by the evidence to any extent so that we
may determine whether the trial court was clearly erroneous in determining that a
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new trial was not warranted.” Id. (emphasis added). We review a trial court’s
decision to deny a motion for a new trial under CR 59.01 under the clearly
erroneous standard. Id. at 634-35.
However, this case is unique in that Allen’s failure to timely itemize
his medical expenses meant the jury was only authorized to award pain and
suffering damages. Thus, cases holding that a zero-dollar pain and suffering
verdict is permissible if a jury awarded medical expenses are distinguishable. See,
e.g., Miller v. Swift, 42 S.W.3d 599, 601 (Ky. 2001) (“The law in Kentucky,
however, does not require a jury to award damages for pain and suffering in every
case in which it awards medical expenses.”). The parties have not cited, nor have
we independently located, a case where a jury was only asked to award damages
for pain and suffering and chose to make no award despite finding a defendant
partially at fault.
Each case obviously presents a distinguishable fact pattern, but we
may synthesize a broad principle from precedent approving a “zero” pain and
suffering verdict: there was evidence of other factors, besides the defendant’s
actions or inactions, which contributed to the plaintiff’s injuries and/or pain. For
example, though not intended to be an exhaustive list, Kentucky appellate courts
have affirmed zero-dollar verdicts when: the plaintiff initially claimed to be
uninjured and did not immediately seek medical treatment, Bledsaw v. Dennis, 197
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S.W.3d 115, 117-18 (Ky.App. 2006); the young plaintiff’s initial complaints of
pain were contradicted by medical records; Bayless v. Boyer, 180 S.W.3d 439,
445–46 (Ky. 2005); and there was evidence from which a jury could have
concluded the plaintiff had aggravated a pre-existing condition, Miller, 42 S.W.3d
at 602-03; Spalding v. Shinkle, 774 S.W.2d 465, 466-67 (Ky.App. 1989). By
contrast, we reversed a verdict with a “meager” pain and suffering award because
it was “not supported by the evidence of record.” Hazelwood v. Beauchamp, 766
S.W.2d 439, 440-41 (Ky.App. 1989).
We thus must examine the record to see if the jury’s decision to award
no pain and suffering damages to Allen was supported at all by the evidence. In so
doing, we note that Allen’s claims are primarily based upon Dr. Wheeler’s post-
operative care, or lack thereof, not the surgery itself.
Dr. Wheeler presented expert testimony from a surgeon who said he
had never seen a post-operative infection develop within twenty-four hours of
surgery, and that any infection thus would not have been detectible if Dr. Wheeler
had seen Allen on April 2. According to Dr. Wheeler’s expert, Allen’s infection
could not have been diagnosed before April 4, three days after his surgery. To be
sure, Allen’s expert contrarily testified that Allen’s condition could have been
diagnosed and treated on April 2 and so, by not evaluating Allen on that day, Dr.
Wheeler permitted Allen’s infection to become more severe, thereby causing Allen
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to undergo additional painful and/or embarrassing medical procedures. However,
Allen’s expert also admitted on cross-examination that Allen’s infection could
have developed in the roughly fifty-hour interval between when Allen spoke to
Sebastian on April 2 and when he called Dr. Wheeler’s office on April 4.
In short, the jury had testimony from which it could have concluded
that Dr. Wheeler’s failure to see Allen on April 2 would not likely have prevented
Allen from having additional pain and medical procedures. Moreover, though
Sebastian did not specifically recall speaking with Allen, the jury could have
believed that she offered to let Allen see Dr. Wheeler on April 2 but that Allen
failed to accept that offer. The jury could also have believed that Allen’s failure to
seek medical care for roughly fifty hours after speaking with Sebastian on April 2
led to a worsening of his condition. Consequently, though it certainly could have
reached a contrary conclusion, there was evidence to support the jury’s verdict.
Therefore, we must affirm. Fulkerson, 343 S.W.3d at 635.
Dr. Wheeler’s appeal focuses on the propriety of the mistrial and the
resultant costs order. We discern no abuse of discretion in the mistrial declaration
but find the costs order to be fatally flawed.
Because granting a mistrial is a drastic act, it is reserved for situations
where “there is a fundamental defect in the proceedings which will result in a
manifest injustice” such that “a litigant will be denied a fair and impartial trial and
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the prejudicial effect can be removed in no other way.” Gould v. Charlton Co.,
Inc., 929 S.W.2d 734, 738 (Ky. 1996). Trial courts are vested with “broad
discretion in determining whether a mistrial should be granted[,]” and
consequently we may disturb that determination only if the trial court abused its
discretion—i.e., the court acted “arbitrarily, unreasonably, unfairly, or in a way
that is unsupported by sound legal principles.” Wright v. Commonwealth, 590
S.W.3d 255, 260 (Ky. 2019).
Dr. Wheeler argues the trial court erred in granting a mistrial because
“[t]he fact that Mrs. Allen was formerly a plaintiff was admissible.” As we
construe it, Dr. Wheeler’s argument is that the jury was entitled to know of
Barbara Allen’s former status as a plaintiff in order to adjudge her credibility,
citing Miller ex rel. Monticello Banking Co. v. Marymount Medical Center, 125
S.W.3d 274, 276 (Ky. 2004), for the proposition that “Kentucky courts have
allowed evidence of a dismissed cross-claim to be introduced as evidence.” But
Marymount Medical Center is readily distinguishable as testimony about the
previously settled claim was permissible there to show that expert witnesses had
changed their testimony after hearing of the settlement. Indeed, our Supreme
Court framed the issue as being whether Kentucky “allows admission of evidence
of a settlement with one or more codefendants in order to impeach a witness whose
testimony changed after learning of the settlement . . . .” Id. at 280. See also
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Hyman & Armstrong, P.S.C. v. Gunderson, 279 S.W.3d 93, 119 (Ky. 2008) (citing
Marymount Medical Center for the rule that “evidence of a settlement agreement is
not admissible to prove liability or invalidity of the claim, but is admissible to
show the potential bias of parties who were previously adversaries in the litigation
and who may now be motivated to downplay each other’s fault.”). Barbara Allen
was not an expert witness, and Dr. Wheeler has not shown she—or anyone else—
materially changed her testimony after dismissing her consortium claims.
In short, we disagree with Dr. Wheeler’s contention that asking
Barbara if she was recently a party to the case was proper.2 Instead, we agree with
the trial court that the question was highly prejudicial to Allen as it insinuated that
Barbara had already received settlement funds from Dr. Wheeler. And the
agreement was not needed to show Barbara’s already obvious bias in favor of
Allen, her spouse.3 Instead, we agree with the trial court’s apt observation that the
question raised a “big red flag to the jury—‘I think they [the Allens] must have got
some money out of this.’ That’s the prejudice to the plaintiff. It sends the jury
2
Because it is a purely hypothetical matter, we decline to address the correctness of the trial
court’s speculation that Dr. Wheeler could have properly introduced evidence of Barbara Allen’s
former status as a plaintiff by other methods.
3
We need not delve into the details but some of the questions asked Barbara about her
relationship with William were of highly dubious relevance, at best. However, we disagree with
Dr. Wheeler’s unfounded contention that asking Barbara about the ups and downs of her
marriage somehow opened the door to ask her about her status as a former plaintiff. Asking a
wife about the vicissitudes of her marriage does not directly relate to, or inherently intertwine
with, whether she was once a party to the litigation.
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back into the [deliberation] room thinking, ‘Hey, they’ve already got some money
out of this why should we even find in their favor?’”
Although the parties have not cited, nor have we independently
located, precedent involving a similar question, “there is nevertheless authority
supporting the proposition that a mistrial may be appropriate even when the error is
based on a single improper question or statement posed by counsel.” Sneed v.
Burress, 500 S.W.3d 791, 796 (Ky. 2016). Given the impropriety of the question,
we cannot conclude that the trial court’s declaration of a mistrial was arbitrary,
unreasonable or unfair. “Some trial judges may have handled the situation
differently. But we cannot declare that the trial court here abused its discretion by
granting [Allen’s] motion for a mistrial[.]” Id.Before we may address the propriety of the sanctions, we must resolve
the antecedent question of whether the trial court had jurisdiction to assess costs
since it did not do so until after Allen had filed his appeal. Dr. Wheeler asserts the
trial court had lost jurisdiction to issue the order because it was issued after Allen
filed his appeal. We disagree.
First, a court must satisfy jurisdictional concerns itself; for the same
reasons parties may not confer jurisdiction by consent upon a court (see, e.g.,
Young v. Richardson, 267 S.W.3d 690, 696 (Ky.App. 2008)), neither may they
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deprive a court of jurisdiction by consent. Therefore, we must determine the trial
court’s jurisdiction for ourselves.
As the parties note, the general rule is that “[a] notice of appeal, when
filed, transfers jurisdiction of the case from the circuit court to the appellate court.
It places the named parties in the jurisdiction of the appellate court.” City of
Devondale v. Stallings, 795 S.W.2d 954, 957 (Ky. 1990). However, as with most
general rules, there are exceptions.
For nearly ninety years, Kentucky precedent has permitted trial courts
to address matters collateral to an ongoing appeal. Specifically, Kentucky’s then-
highest court held long ago that:
an appeal does not necessarily deprive the lower court of
all jurisdiction, so as to prevent absolutely any action,
even though such action does not affect the matters
involved on the appeal and exclusively committed to the
reviewing court. On the contrary, the case is often
regarded as pending in the court of original jurisdiction
for the purposes of proceedings other than such as pertain
to the subject-matter of the judgment itself, or to the
appeal and the proper hearing thereof, and concerning
collateral or incidental matters necessary for the
preservation of the fruits of the ultimate judgment, or
affecting the status in quo of the parties. Matters of the
character indicated are not placed by an appeal from its
judgment beyond the jurisdiction, protection, and control
of the lower court.
Garnett v. Oliver, 242 Ky. 25, 45 S.W.2d 815, 816 (1931). See also Wright v.
Ecolab, Inc., 461 S.W.3d 753, 758 (Ky. 2015) (citing Garnett to recognize
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“that there are circumstances in which a trial court may retain jurisdiction over
some aspects of a case despite the filing of a notice of appeal.”); 4 C.J.S. Appeal
and Error § 517 (2020) (“During the pendency of an appellate proceeding, the trial
court retains jurisdiction to proceed as to issues collateral to or not affecting the
subject matter of the appeal, ancillary issues, and as to matters which are
independent of and unrelated to that portion of the proceedings that pends on
appeal . . . . Motions for sanctions are independent of the underlying decision from
which the appeal is taken, and thus, the district court’s consideration of this matter
is permitted pursuant to retained jurisdiction, because such consideration does not
implicate the decision appealed from.”) (footnotes omitted).
That exception applies here because the sanctions have no bearing
whatsoever on the issues presented in Allen’s appeal. In other words, our
resolution of the sanctions issue neither helps nor harms Allen’s claims in his
separate appeal. Similarly, we reject Dr. Wheeler’s argument that the trial court
lost the ability to issue sanctions once the judgment from which Allen appealed
became final. Bramblett, 598 S.W.3d at 574-75 (holding that trial court had
jurisdiction to issue post-judgment sanctions for discovery violations because the
“post-judgment order was ancillary” and “in no manner modified or changed the
judgment . . . .”).
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In sum, better practice would have been for the trial court to resolve
the sanctions issue much sooner. Nonetheless, the court retained the jurisdiction to
issue the sanctions order under these facts.
“We review the trial court’s determination of appropriate sanctions,
including fee awards, for an abuse of its discretion.” Id. at 573. Here, the trial
court abused its discretion by issuing a fatally flawed sanctions order.
First, the court failed to state the authority by which the sanctions
were issued. Of course, courts have the inherent general authority to sanction
contumacious acts. Cabinet for Health and Family v. J.M.G., 475 S.W.3d 600,
611 (Ky. 2015). But, as Dr. Wheeler stresses, the trial court never found Dr.
Wheeler’s counsel to be in contempt. We cannot approve a court finding someone
to be in contempt sub silentio, so the sanctions cannot be deemed to have been
issued in response to contempt of court.
The already murky basis for the sanctions is muddied considerably
further by the fact that the trial court curiously stated in the sanctions order that Dr.
Wheeler’s counsel “inadvertently rais[ed]” an improper issue. The trial court’s
conclusion that the question was inadvertent is perplexing. Counsel has not
apologetically said he had an unintentional verbal slip; to the contrary, counsel
continues to argue the question was permissible. And at the November 3, 2017,
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sanctions hearing the trial court orally opined that counsel had “intentionally”
placed the dismissal of Barbara’s consortium claims before the jury.
The parties have not cited, nor have we independently located,
Kentucky precedent resolving whether a court may properly find a person to be in
inadvertent or unintentional civil contempt, an issue upon which courts across the
country have split. See 17 Am. Jur. 2d Contempt § 15 (2020) (“While there is
contrary authority, accidental and unintentional violations of a mandate of the
court may be excused from a finding of civil contempt.”) (footnote omitted).
Indeed, we have stated that contempt is based upon “willful disobedience.”
Kentucky Retirement Systems v. Foster, 338 S.W.3d 788, 801 (Ky.App. 2010).
Because we resolve actual controversies, not hypotheticals (even interesting ones),
we decline to determine if a court may properly find someone to be in civil
contempt for inadvertent misconduct because there is no indication that occurred
here.
Courts may also issue a contempt finding for, inter alia, improper
conduct in discovery under CR 37.02(2)(d), disobedience of a summons under CR
45.06, failure to comply with a restraining order or injunction under CR 65.06, or
failure to perform a specific act mandated by a judgment. But Dr. Wheeler’s
counsel’s question to Barbara does not fall within any of those recognized
parameters.
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The situation is rendered more complicated by the court’s assertion in
the sanctions order that Dr. Wheeler’s counsel’s question raised an issue which
“had previously been prohibited by the Court . . . .” Similarly, immediately after
the question at issue was asked, the trial court stated at a bench conference that
counsel had agreed at the beginning of the case “that you would not bring that up,”
presumably referring to Barbara’s dismissed consortium claims. But the parties
have not cited to where any such agreement was reached. Similarly, the parties
have not cited to any motion in limine filed by either Dr. Wheeler or Allen asking
the court to prohibit discussion of Barbara’s voluntarily dismissed consortium
claims.
We are cognizant that early in the trial, outside the presence of the
jury, the trial court told counsel it would be inappropriate to ask Barbara about how
Allen’s condition made her feel or her reaction thereto. But the parties have not
cited, nor have we independently located, anywhere before or during the first trial
where the trial court specifically prohibited counsel from mentioning Barbara’s
dismissed claims to the jury.
Of course, the trial courts of this Commonwealth, learned and
dedicated though we know them to be, cannot preemptively address all problems
and issues which may occur at trial. And trial courts may reasonably expect all
members of the bar to comply with the Kentucky Rules of Civil Procedure and
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Kentucky Rules of Evidence, and any egregious failure to do so may, depending on
the circumstances, be sanctionable. But a sanctioned party is entitled to know
why, specifically, the sanctions are being imposed.
Finally, the order here is impermissibly vague. When it declared a
mistrial, the trial court orally stated that Clay Edwards, the attorney who asked
Barbara about her status as a former plaintiff, would be responsible for paying the
costs. But the written sanctions order only states that Allen “shall be awarded the
amount of $29,967.46 in costs related to the mistrial that Defense counsel caused
in this civil action, as detailed above.” Because judges “often voice views and
opinions which may be inconsistent with their final judgments” the rule in
Kentucky is that “[w]hen there is a conflict between a court’s oral statements and
the written judgment, the written judgment controls.” Machniak v.
Commonwealth, 351 S.W.3d 648, 652 (Ky. 2011). Here, the order does not
specify that Attorney Edwards—or anyone else—must pay Allen’s costs.
Consequently, we cannot discern whether the trial court changed its mind as to
making Edwards pay Allen’s costs or inadvertently failed to reaffirm its oral
statement in the written order.
The order here does not specify: the type of sanctions (and the
authority permitting those types of sanctions to be imposed); an accurate reason (or
reasons) sanctions are being imposed; or the payor of the sanctions. Therefore, the
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order cannot stand. Because the trial court had the jurisdiction to issue sanctions,
we will vacate the sanctions order and remand to the trial court for further
proceedings.
The trial court continues to have the discretion to determine whether
the sanction of costs is appropriate for the causation of the mistrial. However, any
award of costs should be provided with specificity and the only costs that should
be awarded would be costs unequally attributable to the mistrial.
Because the matter is being remanded, we decline to address
definitively whether each itemized cost in the sanctions order was proper as we do
not opine on the correctness of a void decision. For the benefit of the parties and
trial court on remand, however, we observe that, generally, the imposition of
sanctions upon a party, or an attorney, for purely inadvertent misconduct would be
highly questionable. Indeed, generally, “[o]ne whose offense amounts to no more
than a misunderstanding or an ‘honest mistake’ is not guilty of a civil contempt.”
17 Am. Jur. 2d Contempt § 15 (2020). In Kentucky, “[c]ontempt is the willful
disobedience toward, or open disrespect for, the rules or orders of a court.”
Gormley v. Judicial Conduct Commission, 332 S.W.3d 717, 725 (Ky. 2010).
Thus, the trial court on remand must first state who is being
sanctioned. Second, the court must resolve the disconnect between its oral remarks
(when it stated the misconduct was intentional) and its written order (where it
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stated the misconduct was unintentional). If the court concludes the misconduct
was unintentional, it must explain in detail why sanctions are nonetheless
appropriate, including the legal authority permitting it to impose sanctions for an
accident (i.e., unintentional misconduct).
If the court concludes the misconduct was intentional, it must then
state whether the misconduct or action constitutes contempt. If it concludes the
misconduct was intentional but not contumacious, it must state the legal authority
by which it may impose sanctions. If the court finds the misconduct was
intentional and contumacious, it must first explain exactly what court rule, order, or
directive the misconduct violated, and whether the contempt is civil or criminal.
As our Supreme Court explained in Gormley, both civil and criminal contempt are
premised upon failing to comply with a court order or directive. 332 S.W.3d at
725-26 (“Civil contempt is when someone fails to follow a court order to do
something . . . . Criminal contempt, on the other hand, is when a person disobeys a
court order out of disrespect for the rules or orders of court.”).
The sanctions must also be commensurate with the misconduct. If the
contempt is designed to compensate Allen for costs incurred by having to undergo
a second trial through no fault of his own, then the contempt would appear to be
civil. See Commonwealth, Cabinet for Health and Family Services v. Ivy, 353
S.W.3d 324, 332 (Ky. 2011) (“Contempt sanctions are classified as either criminal
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or civil depending on whether they are meant to punish the contemner’s
noncompliance with the court’s order and to vindicate the court’s authority and
dignity, or are meant to benefit an adverse party either by coercing compliance
with the order or by compensating for losses the noncompliance occasioned.”).
Any sanctions must be strictly limited to expenses the misconduct caused Allen to
incur, such as the cost of having experts and counsel travel back to Boyd County
for the second trial (costs and expenses which would not have been incurred absent
the mistrial occasioned by the misconduct). In short, if the trial court continues to
believe sanctions are appropriate, it must issue a sufficiently detailed order
satisfying the fundamental “who, what, why, and how” criteria necessary to any
sanctions decision.
For the foregoing reasons, we: 1) affirm the judgment in William
Allen’s appeal, Case No. 2018-CA-1830-MR, and 2) vacate and remand for further
proceedings consistent with this opinion the sanctions order from which Timothy
Wheeler and his counsel appeal, Case No. 2019-CA-0023-MR.
ALL CONCUR.
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BRIEFS FOR APPELLANT/ BRIEFS FOR APPELLEE/
CROSS-APPELLEE: CROSS-APPELLANT:
Debra A. Nelson Clay A. Edwards
Cincinnati, Ohio Christopher J. Leopold
Louisville, Kentucky
Michael Andrew Barnett
Lexington, Kentucky Thomas Scott Sennett
Ashland, Kentucky
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