RENDERED: AUGUST 12, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-0379-MR
DEIRDRE JOHNSON APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE AUDRA J. ECKERLE, JUDGE ACTION NO. 18-CI-006013
KING GEORGE APARTMENTS, LLC APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: DIXON, LAMBERT, AND MCNEILL, JUDGES.
DIXON, JUDGE: Deirdre Johnson appeals from the order denying her request to
alter, amend, vacate, or reconsider the order granting King George Apartments, LLC, summary judgment,1 as well as the order of sanction, entered by the Jefferson
Circuit Court on March 5, 2021, and April 17, 2019, respectively. Following a
careful review of the record, briefs, and law, we affirm.
FACTS AND PROCEDURAL BACKGROUND
Deirdre Johnson rented an apartment from King George Apartments,
LLC (“the Apartments”). Neither Johnson nor the Apartments were aware of any
ceiling issues in Johnson’s unit prior to entering the lease. However, a few weeks
later, while lying on her bed, Johnson heard a loud noise. When she looked up, the
ceiling above her was split from wall to wall. Within seconds, the ceiling began to
collapse, and Johnson – who was approximately nine months pregnant – exited as
quickly as possible.
1 As stated by another panel of our Court:
Our case law is clear, however, that there is no appeal from the denial of a [Kentucky Rules of Civil Procedure (CR)] 59.05 motion. The denial does not alter the judgment. Accordingly, the appeal is from the underlying judgment, not the denial of the CR 59.05 motion. 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.” [Tax Ease Lien Invs. 1, LLC v. Brown, 340 S.W.3d 99,] 103 n.5 (emphasis added) (citing Felix v. Lykins Enters., Inc., 2010 WL 4137276 (Ky. App. Oct. 22, 2010) (ordered not published by Kentucky Supreme Court Apr. 18, 2012)).
Ford v. Ford, 578 S.W.3d 356, 366 (Ky. App. 2019) (emphasis in original). Accordingly, we consider this appeal as being taken from the order granting summary judgment.
-2- Once outside, Johnson called her mother who came and insisted she
call 911 to report the collapse of the ceiling and have medical personnel examine
Johnson and her unborn baby. The 911 operator dispatched the fire department
and an ambulance.
The fire department arrived first and spoke with Johnson in the living
room. Even though there were no issues with the ceiling other than in the
bedroom, the fire crew suggested Johnson stay elsewhere.
Ambulance personnel arrived shortly thereafter, examined Johnson –
who complained only of stomach pain, later determined to be Braxton Hicks
contractions – and transported her to the local hospital. Johnson told the
ambulance personnel that she was not sure if she had been hit by the ceiling, and
they noted no insulation in her hair or on her body; no cuts, scrapes, or bruises; and
normal vital signs.
After an ultrasound was performed to check the baby, Johnson was
released. She followed up with her OB-GYN and gave birth to a healthy baby a
few weeks later.
Nearly a year after the incident, Johnson sued the Apartments,
alleging she was “injured in a structural collapse of the [Apartments’] building.”
The Apartments answered and served written discovery on Johnson. When
Johnson did not timely respond, the Apartments moved the trial court to compel
-3- her responses. Following an agreement between the parties, the trial court entered
an order extending the date for Johnson to respond to the discovery requests.
When Johnson failed to respond by the extended deadline, the Apartments moved
the trial court to dismiss her complaint. Johnson then responded to the motion, as
well as the discovery requests. The Apartments replied and noted numerous
deficiencies with Johnson’s responses. The trial court entered an opinion and order
imposing a $500 sanction in lieu of dismissal.
Johnson served discovery requests on the Apartments to which it
responded. She then moved the trial court to strike the Apartments’ responses as
noncompliant with CR 33.01(2), and to compel the Apartments to respond to her
discovery requests. A few days later, the Apartments provided supplemental
responses to Johnson’s requests. The trial court denied Johnson’s motion and
ordered the parties to resolve the discovery dispute among themselves, pursuant to
the local rules of civil procedure.
Johnson again moved the trial court to compel responses to her
discovery requests. The Apartments provided its second supplemental responses.
Even so, the trial court granted Johnson’s motion to compel, giving the Apartments
21 days to provide full and complete responses. One week later, the Apartments
produced its third supplemental responses. Johnson moved the trial court for
sanctions to which the Apartments responded and supplied its fourth supplemental
-4- responses. The Apartments also moved the trial court to compel Johnson to
provide dates for her deposition. The trial court denied Johnson’s motion for
sanctions and found the Apartments had sufficiently complied with discovery, but
granted the motion to compel production of Johnson’s deposition dates.
At deposition, Johnson testified the ceiling fell on her and slid off her
back as she exited her bedroom, but she was not injured. Johnson also testified
there was no indication of any issue with the ceiling until she heard the noise and
saw the crack a few seconds before the ceiling collapsed.
Several months after Johnson’s deposition, the Apartments moved the
trial court for summary judgment because Johnson failed to offer any evidence that
the Apartments knew or should have known about the ceiling issue and Johnson
admitted she was not physically injured. The trial court granted the motion
“[b]ecause there is no genuine issue of fact regarding the occurrence of a bodily
injury[.]” Johnson moved the trial court to alter, amend, vacate, or reconsider its
order, which was denied. This appeal followed.
STANDARDS OF REVIEW
Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, stipulations, and admissions on file, together with the
affidavits, if any, 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.” CR 56.03. An
-5- appellate court’s role in reviewing a summary judgment is to determine whether
the trial court erred in finding no genuine issue of material fact exists and the
moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916
S.W.2d 779, 781 (Ky. App. 1996). A grant of summary judgment is reviewed de
novo because factual findings are not at issue. Pinkston v. Audubon Area Cmty.
Servs., Inc., 210 S.W.3d 188, 189 (Ky. App. 2006) (citing Blevins v. Moran, 12
S.W.3d 698 (Ky. App. 2000)).
Additionally, “[w]e review a trial court’s grant or denial of discovery
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RENDERED: AUGUST 12, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-0379-MR
DEIRDRE JOHNSON APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE AUDRA J. ECKERLE, JUDGE ACTION NO. 18-CI-006013
KING GEORGE APARTMENTS, LLC APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: DIXON, LAMBERT, AND MCNEILL, JUDGES.
DIXON, JUDGE: Deirdre Johnson appeals from the order denying her request to
alter, amend, vacate, or reconsider the order granting King George Apartments, LLC, summary judgment,1 as well as the order of sanction, entered by the Jefferson
Circuit Court on March 5, 2021, and April 17, 2019, respectively. Following a
careful review of the record, briefs, and law, we affirm.
FACTS AND PROCEDURAL BACKGROUND
Deirdre Johnson rented an apartment from King George Apartments,
LLC (“the Apartments”). Neither Johnson nor the Apartments were aware of any
ceiling issues in Johnson’s unit prior to entering the lease. However, a few weeks
later, while lying on her bed, Johnson heard a loud noise. When she looked up, the
ceiling above her was split from wall to wall. Within seconds, the ceiling began to
collapse, and Johnson – who was approximately nine months pregnant – exited as
quickly as possible.
1 As stated by another panel of our Court:
Our case law is clear, however, that there is no appeal from the denial of a [Kentucky Rules of Civil Procedure (CR)] 59.05 motion. The denial does not alter the judgment. Accordingly, the appeal is from the underlying judgment, not the denial of the CR 59.05 motion. 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.” [Tax Ease Lien Invs. 1, LLC v. Brown, 340 S.W.3d 99,] 103 n.5 (emphasis added) (citing Felix v. Lykins Enters., Inc., 2010 WL 4137276 (Ky. App. Oct. 22, 2010) (ordered not published by Kentucky Supreme Court Apr. 18, 2012)).
Ford v. Ford, 578 S.W.3d 356, 366 (Ky. App. 2019) (emphasis in original). Accordingly, we consider this appeal as being taken from the order granting summary judgment.
-2- Once outside, Johnson called her mother who came and insisted she
call 911 to report the collapse of the ceiling and have medical personnel examine
Johnson and her unborn baby. The 911 operator dispatched the fire department
and an ambulance.
The fire department arrived first and spoke with Johnson in the living
room. Even though there were no issues with the ceiling other than in the
bedroom, the fire crew suggested Johnson stay elsewhere.
Ambulance personnel arrived shortly thereafter, examined Johnson –
who complained only of stomach pain, later determined to be Braxton Hicks
contractions – and transported her to the local hospital. Johnson told the
ambulance personnel that she was not sure if she had been hit by the ceiling, and
they noted no insulation in her hair or on her body; no cuts, scrapes, or bruises; and
normal vital signs.
After an ultrasound was performed to check the baby, Johnson was
released. She followed up with her OB-GYN and gave birth to a healthy baby a
few weeks later.
Nearly a year after the incident, Johnson sued the Apartments,
alleging she was “injured in a structural collapse of the [Apartments’] building.”
The Apartments answered and served written discovery on Johnson. When
Johnson did not timely respond, the Apartments moved the trial court to compel
-3- her responses. Following an agreement between the parties, the trial court entered
an order extending the date for Johnson to respond to the discovery requests.
When Johnson failed to respond by the extended deadline, the Apartments moved
the trial court to dismiss her complaint. Johnson then responded to the motion, as
well as the discovery requests. The Apartments replied and noted numerous
deficiencies with Johnson’s responses. The trial court entered an opinion and order
imposing a $500 sanction in lieu of dismissal.
Johnson served discovery requests on the Apartments to which it
responded. She then moved the trial court to strike the Apartments’ responses as
noncompliant with CR 33.01(2), and to compel the Apartments to respond to her
discovery requests. A few days later, the Apartments provided supplemental
responses to Johnson’s requests. The trial court denied Johnson’s motion and
ordered the parties to resolve the discovery dispute among themselves, pursuant to
the local rules of civil procedure.
Johnson again moved the trial court to compel responses to her
discovery requests. The Apartments provided its second supplemental responses.
Even so, the trial court granted Johnson’s motion to compel, giving the Apartments
21 days to provide full and complete responses. One week later, the Apartments
produced its third supplemental responses. Johnson moved the trial court for
sanctions to which the Apartments responded and supplied its fourth supplemental
-4- responses. The Apartments also moved the trial court to compel Johnson to
provide dates for her deposition. The trial court denied Johnson’s motion for
sanctions and found the Apartments had sufficiently complied with discovery, but
granted the motion to compel production of Johnson’s deposition dates.
At deposition, Johnson testified the ceiling fell on her and slid off her
back as she exited her bedroom, but she was not injured. Johnson also testified
there was no indication of any issue with the ceiling until she heard the noise and
saw the crack a few seconds before the ceiling collapsed.
Several months after Johnson’s deposition, the Apartments moved the
trial court for summary judgment because Johnson failed to offer any evidence that
the Apartments knew or should have known about the ceiling issue and Johnson
admitted she was not physically injured. The trial court granted the motion
“[b]ecause there is no genuine issue of fact regarding the occurrence of a bodily
injury[.]” Johnson moved the trial court to alter, amend, vacate, or reconsider its
order, which was denied. This appeal followed.
STANDARDS OF REVIEW
Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, stipulations, and admissions on file, together with the
affidavits, if any, 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.” CR 56.03. An
-5- appellate court’s role in reviewing a summary judgment is to determine whether
the trial court erred in finding no genuine issue of material fact exists and the
moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916
S.W.2d 779, 781 (Ky. App. 1996). A grant of summary judgment is reviewed de
novo because factual findings are not at issue. Pinkston v. Audubon Area Cmty.
Servs., Inc., 210 S.W.3d 188, 189 (Ky. App. 2006) (citing Blevins v. Moran, 12
S.W.3d 698 (Ky. App. 2000)).
Additionally, “[w]e review a trial court’s grant or denial of discovery
sanctions, including fee awards, for abuse of discretion, Turner v. Andrew, 413
S.W.3d 272 (Ky. 2013)[.]” Rumpel v. Rumpel, 438 S.W.3d 354, 361 (Ky. 2014).
“The test for abuse of discretion is whether the trial judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” Goodyear Tire &
Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).
ANALYSIS
On appeal, Johnson contends the trial court should not have granted
summary judgment because she was prevented from having the opportunity to
complete discovery. It is well-established “summary judgment is only proper after
a party has been given ample opportunity to complete discovery, and then fails to
offer controverting evidence.” Pendleton Bros. Vending, Inc. v. Commonwealth
Fin. & Admin. Cabinet, 758 S.W.2d 24, 29 (Ky. 1988) (emphasis added) (citing
-6- Hartford Ins. Grp. v. Citizens Fid. Bank & Tr. Co., 579 S.W.2d 628 (Ky. App.
1979)). Yet, it is “not necessary to show that the respondent has actually
completed discovery, but only that respondent has had an opportunity to do so.”
Hartford, 579 S.W.2d at 630.
In Hartford, a period of approximately six months between the filing
of the complaint and the summary judgment was found to be sufficient time to
conduct discovery. However, this is not a bright-line rule, and the appropriate time
for discovery necessarily varies from case to case depending on the complexity,
availability of information sought, and the like. See Suter v. Mazyck, 226 S.W.3d
837, 842 (Ky. App. 2007).
Here, more than two years elapsed between the filing of the complaint
and its dismissal based on Johnson’s failure to produce proof of her own physical
injury. This is not a complicated part of the case, nor does it appear that any
relevant information pertaining to her injury – or lack thereof – has been withheld.
“It is well-established that to establish liability for negligence the
plaintiff must prove: (1) a duty; (2) a breach of that duty; (3) which was the
proximate cause of an injury; and (4) which resulted in damages. All of these
elements are essential to a valid claim.” Reece v. Dixie Warehouse & Cartage Co.,
188 S.W.3d 440, 445 n.6 (Ky. App. 2006). The trial court did not discuss the
issues of duty or breach but, rather, solely relied on Johnson’s admissions
-7- concerning the lack of physical injury in dismissing her claim. Failure to prove
any of the four elements is fatal to a negligence claim; thus, the trial court did not
err in dismissing Johnson’s claim due to her failure to prove her physical injury.
Johnson does not dispute this on appeal. Therefore, Johnson’s arguments that the
Apartments owed her a duty and breached that duty are inconsequential and we
need not address them. Moreover, we cannot say the trial court’s grant of
summary judgment was premature.
Johnson further contends the trial court erred in awarding attorney
fees in its opinion and order awarding sanctions. Johnson asserts that under a local
rule, all motions for attorney fees shall be accompanied by an affidavit of counsel
setting forth certain detailed information. However, the motion was not one for
attorney fees but a motion to dismiss pursuant to CR 37.02(2) for failure to comply
with the trial court’s order to respond to written discovery requests and CR 41.02
“[f]or failure of the plaintiff to prosecute or to comply with these rules or any order
of the court[.]” Furthermore, the $500 was “an alternative sanction” and not an
award of attorney fees.
Under CR 37.02, the trial court may sanction a noncompliant party in
a myriad of ways, including dismissal and ordering a party, counsel, or both, to
“pay the reasonable expenses, including attorney’s fees, caused by the failure[.]”
A trial court “has broad discretion in addressing a violation of its order[s]”
-8- regarding discovery, and we review the trial court’s determination of the sanction
for abuse of that discretion. Wilson v. Commonwealth, 381 S.W.3d 180, 191 (Ky.
2012). In the case herein, the trial court entered a four-page opinion and order with
findings supporting its decision to impose a $500 fine as an alternative sanction.
Our review reveals no abuse of discretion by the trial court in imposing monetary
sanctions, and Johnson’s argument that it was improper due to the Apartments’
failure to comply with the local rule by filing an affidavit is a non sequitur.
CONCLUSION
Therefore, and for the foregoing reasons, the orders of the Jefferson
Circuit Court are AFFIRMED.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Mark Joseph Smith Susan L. Maines Louisville, Kentucky Patrick L. Schmeckpeper Lexington, Kentucky
-9-