RENDERED: APRIL 23, 2026 TO BE PUBLISHED
Supreme Court of Kentucky 2024-SC-0309-DG
SGT. KEVIN BURTON; LT. FRANK APPELLANTS CHAD TAYLOR; AND SGT. MIKE GARYANTES
ON REVIEW FROM COURT OF APPEALS V. NO. 2022-CA-1028 & 2022-CA-1108 FRANKLIN CIRCUIT COURT NO. 19-CI-01246
KENTUCKY STATE APPELLEE POLICE/COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE GOODWINE
Appellants Sgt. Kevin Burton, Lt. Frank Chad Taylor, and Sgt. Mike
Garyantes brought an action against their former employer, Kentucky State
Police (“KSP”), under the Kentucky Whistleblower Act (“KWA”) in the Franklin
Circuit Court. A jury found in their favor and awarded them $900,000
collectively in punitive damages for their claims. KSP appealed as a matter of
right, and the Court of Appeals reversed and remanded for a new trial because
of erroneous jury instructions. Appellants sought discretionary review, which
we granted. After review of the record, applicable law, and the arguments of the
parties, we affirm the decision of the Court of Appeals. BACKGROUND
Appellants are former employees of KSP Post 4. They initiated their KWA
action against KSP in 2019. They alleged KSP retaliated against them for
reporting concerns about “irregularities and thefts of evidence from Post 4.”
They reported that Sgt. Ryan Johnson took evidence from an open case for
personal use, that evidence destruction forms were improperly completed, and
that KSP employees covered up Johnson’s actions rather than properly
investigating them. They claimed KSP officials retaliated against them by
threatening to transfer them, initiating an internal affairs investigation into
Garyantes on an unrelated incident, and constructively discharging Burton.
The case progressed to trial. Both parties tendered proposed jury
instructions to the trial court. After multiple discussions with counsel, the
court issued final jury instructions. Ultimately, the jury returned verdicts in
favor of Appellants and awarded $500,000 in punitive damages to Burton 1 and
$200,000 in punitive damages to each Garyantes and Taylor. The court denied
KSP’s motions for a new trial and judgment notwithstanding the verdict.
KSP appealed the judgment as a matter of right to the Court of Appeals. 2
Among other issues, KSP argued the trial court erroneously instructed the jury
on the requirements of the KWA. The Court of Appeals was convinced by this
1 The jury was instructed on compensatory damages for Burton but declined to
award such damages. 2 Appellants filed a cross-appeal on the issue of attorney’s fees. The Court of
Appeals dismissed the cross-appeal on Appellants’ own motion.
2 argument and reversed and remanded the case for a new trial. Appellants then
moved for discretionary review which we granted.
ANALYSIS
On discretionary review, Appellants argue KSP waived any error in the
jury instructions. 3 “A properly preserved challenge to the contents of a given
jury instruction is a question of law subject to de novo review on appeal. But if
a party fails to preserve properly a challenge to jury instructions in the trial
court, the challenge is not entitled to appellate review.” Norton Healthcare, Inc.
v. Disselkamp, 600 S.W.3d 696, 709-10 (Ky. 2020) (footnote omitted).
First, KSP did not waive its argument related to the jury instructions.
Appellants do not dispute the Court of Appeals’ holding that the final
instructions were erroneous or that KSP tendered proposed jury instructions
without the erroneous language. Instead, Appellants argue that regardless of
the tendered instruction, KSP ultimately waived any error because their
counsel did not object to the final jury instructions.
No party may assign as error the giving or the failure to give an instruction unless he has fairly and adequately presented his position by an offered instruction or by motion, or unless he makes objection before the court instructs the jury, stating specifically the matter to which he objects and the ground or grounds of his objection.
3 Appellants also argue KSP did not comply with Kentucky Rules of Appellate
Procedure (RAP) 32(A)(4) by failing to include preservation statements in its brief before the Court of Appeals. We note that Appellants allege they preserved this argument by first raising it in their petition for rehearing before the Court of Appeals. Failure to raise this argument in their original briefs amounts to waiver. Johnson v. Commonwealth, 450 S.W.3d 707, 713 (Ky. 2014). The Court of Appeals declined to address KSP’s compliance with RAP 32(A)(4). We also decline to do so.
3 CR 4 51(3) (emphasis added). This rule is meant to ensure the “best possible
trial” and to give the trial court “an opportunity to correct any errors before
instructing the jury.” Sand Hill Energy, Inc. v. Smith, 142 S.W.3d 153, 162-63
(Ky. 2004) (footnotes and internal quotation marks omitted). It also dictates
that counsel be an active participant in the court’s crafting of the instructions
so that counsel cannot intentionally build reversible error into the final
instructions. Burke Enters., Inc. v. Mitchell, 700 S.W.2d 789, 792 (Ky. 1985).
We have repeatedly refused to review errors in instructions alleged for the first
time on appeal as unpreserved. Fraser v. Miller, 427 S.W.3d 182, 186 (Ky.
2014); Ellison v. R & B Contracting, Inc., 32 S.W.3d 66, 72-73 (Ky. 2000); Kroger
Co. v. Willgruber, 920 S.W.2d 61, 64 (Ky. 1996); Mapother and Mapother, P.S.C.
v. Douglas, 750 S.W.2d 430, 431 (Ky. 1988); and Cooper v. Cooper, 485 S.W.2d
509, 511 (Ky. 1972).
The plain language of CR 51(3) allows a party to preserve its objections to
jury instructions through any one of the three listed methods. “If a party seeks
to preserve error under [the rule] by tendered instruction instead of specific
objection, that party must actually tender the desired instruction[.]” Owens-
Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 416 (Ky. 1998). So long as
the ”offered instructions clearly present [the] party’s position, no further action
is required to preserve for appellate review[.]” Sand Hill, 142 S.W.3d at 163. A
party has not fairly and adequately presented their position if:
4 Kentucky Rules of Civil Procedure.
4 (1) the omitted language or instruction was not contained in the instruction tendered to the court; i.e., when the allegation of error was not presented to the trial court at all; (2) the minor differences between the language of the tendered instruction and the instruction given by the trial court would not call the trial court’s attention to the alleged error; or (3) the tendered instruction itself was otherwise erroneous or incomplete.
Id. at 163-64 (footnotes omitted).
Here, in Instruction No. 1(a), the jury was instructed as follows:
State whether you are satisfied by the evidence as follows (if you are satisfied, answer YES):
That the Kentucky State Police’s handling of the tennis shoe and lip balm issue constituted an actual or suspected violation of any law, statute, executive order, administrative regulation, mandate, rule, or ordinance, or any facts or information relative to actual or suspected mismanagement, waste, fraud, abuse of authority, or a substantial and specific danger to public health or safety and that Plaintiff Sgt. Kevin Burton’s support of Lt. Frank Chad Taylor or Sgt. Mike Garyantes or bringing facts and information to the attention of Commonwealth Attorney Shane Young and/or Kentucky State Police Sgt. Clint Collins and/or Kentucky State Police Sgt. Kevin Warrell was a good faith disclosure and such disclosure was a contributing factor in the decision to take or threaten to take a personnel action against Sgt. Kevin Burton to discourage or punish Sgt. Kevin Burton from making the disclosure.
(emphasis added). 5
In contrast, KSP’s tendered Instruction No. 1 stated:
5 The jury was instructed separately on the claims of the three plaintiffs. We
recite only the instruction on Burton’s claims because it is nearly identical to the instructions related to the other plaintiffs.
5 You will find for Plaintiff, Kevin Burton, and against Defendant, KSP, under this instruction if you are satisfied by the evidence:
(A) That Kevin Burton made, aided, supported, or substantiated a good faith report(s) or disclosure(s) to an appropriate body or authority of a violation of state law or of mismanagement, waste, fraud, abuse of authority, or a danger to public health or safety. ...
AND
(B) That KSP took materially adverse action(s) against Kevin Burton; ...
(C) That Kevin Burton’s disclosure(s) to the appropriate authority was a contributing factor in KSP’s decision to take adverse personnel action(s) against him.
(emphasis added). 6 Before the Court of Appeals, KSP argued the jury should
have been instructed on whether KSP took materially adverse employment
actions against Appellants. It was their position, as evidenced by the above
proposed instruction, that under the KWA, the jury must find that the
Appellants suffered specific adverse employment actions.
KSP’s proposed instructions meet the requirements set out in Sand Hill.
First, the instruction clearly asserts KSP’s position that the jury must find
Appellants proved KSP took materially adverse actions against them. Second,
the difference between the tendered and final instructions is not minor. The
6 KSP tendered instructions for each plaintiff’s claims. We recite only the
instruction on Burton’s claims because it is nearly identical to the instructions related to the other plaintiffs.
6 final instructions assumed KSP had “take[n] or threatened to take a personnel
action” against each Appellant. This failure to require the jury to specifically
find such an action was taken by KSP is significant. Third, as we will describe
below, KSP’s tendered instruction was not otherwise erroneous.
Furthermore, we are unconvinced by Appellants’ argument that KSP
waived any error otherwise preserved by their proposed instructions.
Appellants rely on a single statement made by counsel to allege KSP
affirmatively agreed to the erroneous instructions. It is true that nearly all
issues can be waived by either inaction or consent. Commonwealth v.
Steadman, 411 S.W.3d 717, 724 (Ky. 2013). It is also true that at the end of the
final bench conference on the jury instructions, KSP’s counsel said, “We’re not
objecting to the final version.” However, we must consider this statement in
context of the trial itself.
In its brief, KSP directs our attention to three bench conferences among
counsel and the trial judge. 7 First, during the conference on February 8, 2022,
there was a discussion about whether the KWA requires Appellants to prove an
“adverse personnel action.” KSP argued it was required, while Appellants
argued it was not. The judge did not appear to decide any argument raised by
7 We have reviewed the video record of the conferences and attempt to
summarize them in relevant part herein. Some portions are difficult to discern either because counsel and/or the trial judge cannot be clearly heard on the recording or because it is unclear to what the discussions refer. For example, there are discussions of case law wherein neither counsel nor the judge state to which case(s) they are referring. Despite these limitations, we are confident in our analysis of the preservation issue.
7 the parties, but instead distributed the jury instructions to the parties and told
them to review them for additional arguments the next day.
The following day, which was the last day of trial, the judge again raised
the issue of whether the instructions should include language regarding an
adverse personnel action. Ultimately, the judge rejected this argument and
moved on to discuss other issues in the instructions for approximately twenty
minutes. After a break for lunch, counsel and the judge returned to the
discussion of the instructions. At one point, the judge referenced “material
factors” and said, “we couldn’t find anything on that, so we left it out.” At the
close of the third bench conference, the judge said he hoped the instructions
were “set in stone” and asked counsel, “Can I get everyone to say yea[?]” 8
Appellants’ counsel answered in the affirmative. KSP’s counsel then said,
“We’re not objecting to the final version.”
This statement does not amount to waiver of the jury instruction issue.
First, as explained above, KSP’s proposed instructions clearly presented its
position to the court and, under Sand Hill, tendering them was sufficient to
preserve its argument. 142 S.W.3d at 163. Furthermore, this statement by
counsel does not prove KSP’s “voluntary and intentional surrender or
relinquishment” of its claim of error. Vinson v. Sorrell, 136 S.W.3d 465, 469
(Ky. 2004). While the video record does not demonstrate KSP made a clear
objection to Instruction No. 1(a), it does show that counsel asserted its position
8 The judge appeared to ask this question in jest. Both the judge and KSP’s
counsel laughed.
8 regarding personnel actions in a discussion with the trial judge and the judge
rejected that argument. Counsel did not continue to pursue the argument and,
when prompted by the court, stated she had no objections to the final jury
instructions. In context, counsel’s statements can be interpreted to be an
agreement to move on with the trial after the court rejected its proposed
instruction rather than waiver of the argument.
Finally, despite Appellants’ failure to challenge the Court of Appeals’
determination of error in Instruction No. 1(a), we will briefly address the
substance of the instructions to provide clarity to the trial court on remand.
The requirements of the KWA are laid out in KRS 9 61.102 and KRS 61.103. To
prove a violation of the statute, a plaintiff must first show:
(1) the employer is an officer of the state; (2) the employee is employed by the state; (3) the employee made or attempted to make a good faith report or disclosure of a suspected violation of state or local law to an appropriate body or authority; and (4) the employer took action or threatened to take action to discourage the employee from making such a disclosure or to punish the employee for making such a disclosure.
Davidson v. Commonwealth, Dep’t. of Mil. Affs., 152 S.W.3d 247, 251 (Ky. App.
2004) (citing Woodward v. Commonwealth, 984 S.W.2d 477, 480-81 (Ky.
1998)). Under KRS 61.103(3), the plaintiff must also “show by a preponderance
of evidence that the disclosure was a contributing factor in the personnel
action.” The burden then shifts to the employer “to prove by clear and
9 Kentucky Revised Statutes.
9 convincing evidence that the disclosure was not a material fact in the
personnel action.” Id.
Herein, it is uncontested that the first and second elements under
Davidson are met. The third element is contested but not relevant to the jury
instruction issue now before us. The fourth element is at issue. First, we affirm
the Court of Appeals’ determination that the jury instructions must instruct
the jury to find each of the contested elements individually. This leaves us to
determine whether the law requires a jury to find KSP took “materially adverse
action(s)” against each Appellant, as proposed by KSP’s Instruction No. 1.
The KWA “recognizes the overt retaliatory act of reprisal as well as the
subtle exercise of official authority or influence in the relationship between
state employee and state government.” Commonwealth Dep’t of Agric. v.
Vinson, 30 S.W.3d 162, 164 (Ky. 2000). In Harper v. University of Louisville, 559
S.W.3d 796, 802 (Ky. 2018), this Court inserted “adverse” into the language of
KRS 61.103(3), to state that a plaintiff must show his good faith disclosure was
a “contributing factor in the [adverse] personnel action” taken against him by
his employer. The Harper decision repeatedly uses the phrase “adverse
employment action” without explanation. Id. at 804-05, 809. Otherwise, this
Court has left “personnel action” undefined. Vinson, 30 S.W.3d at 165.
While KRS 61.102(1) is broad in its description of prohibited conduct by
employers, for an employee to prove a violation under the KWA, the personnel
action taken against him must be “materially adverse.” To reach this
conclusion, we look to the Kentucky Civil Rights Act (“KCRA”) because its
10 prohibition on retaliation is substantially similar to that of the KWA. KRS
344.280(1). 10 Despite the broad prohibition on retaliation in the KCRA, this
Court has construed the law to require a plaintiff to prove “a materially adverse
change in the terms and conditions of his employment.” Brooks v. Lexington-
Fayette Urb. Cnty. Hous. Auth., 132 S.W.3d 790, 802 (Ky. 2004). For retaliation
claims under the KCRA, we have defined a materially adverse action by an
employer as one which “might well have dissuaded a reasonable worker from
making or supporting a charge.” Norton Healthcare, Inc. v. Deng, 487 S.W.3d
846, 855-56 (Ky. 2016) (quoting Burlington N. & Santa Fe Ry. v. White, 548 U.S.
53, 67-68 (2006)). This is a fact-specific inquiry. Id. at 856. We now adopt the
same standard for personnel actions under the KWA.
Therefore, KSP’s tendered instructions were not erroneous. Under the
KWA, jury instructions must instruct the jury to decide whether (1) the
employee made a good faith disclosure or report; (2) the employer took or
threatened to take a materially adverse employment action; and (3) the good
faith disclosure or report was a contributing factor in the materially adverse
10 Non-binding authority from both the Sixth Circuit Court of Appeals and the
Kentucky Court of Appeals has relied on the KCRA to find that personnel action under the KWA must be materially adverse. Harper v. Elder, 803 F. App’x 853, 857 (6th Cir. 2020); Arnold v. Holmes, No. 2009-CA-000514-MR, 2010 WL 3810191, at *2-3 (Ky. App. Oct. 1, 2010); Jones v. Oldham Cnty. Sheriff’s Dep’t, No. 2009-CA-000350-MR, 2010 WL 1508150, *10-11 (Ky. App. Apr. 16, 2010).
11 employment action. 11 On remand, the trial court must conform its
instructions to these requirements. 12
CONCLUSION
Based on the foregoing, the decision of the Court of Appeals is affirmed.
All sitting. Bisig, Conley, Keller, and Nickell, JJ., concur. Thompson, J.,
dissents by separate opinion in which Lambert, C.J., joins.
THOMPSON, J., DISSENTING: I agree with the majority opinion as to its
interpretation of the methods set out in Kentucky Rules of Civil Procedure (CR)
51(3) for preserving objections to jury instructions. I also agree that the
Kentucky State Police (KSP) originally preserved its objection to the proposed
jury instructions by both furnishing its own instructions and arguing about its
objection. I further agree with the majority opinion that a previously preserved
objection can be waived.
I disagree with the majority’s ultimate outcome, which essentially is
based on whether “KSP failed to object to the final version of the jury
instructions,” rather than a consideration of whether “KSP affirmatively agreed
11 This assumes that the first two elements under Davidson are not at issue in a
case. We also note that, rather than including multiple elements in a single instruction as proposed in KSP’s Instruction No. 1, a better practice would be to include each element in a separate instruction so that the jury clearly decides each element individually. 12 The dissent suggests this outcome should not be based on whether KSP failed
to object to the final version of the jury instructions, but whether KSP affirmatively agreed to the final version of the jury instructions. To clarify, the outcome turns on the trial court erroneously instructing the jury as a matter of law, not on whether counsel failed to object or affirmatively agreed with the trial court.
12 to the final version of the Jury Instructions.” 13 I conclude that the KSP clearly
affirmatively waived its previously preserved objection and is bound by such
waiver.
When a trial court specifically asks if jury instructions are now
satisfactory, here by first stating a hope the instructions were “set in stone”
and asking counsel, “Can I get everyone to say yea[?]” the parties have the
freedom to answer in the affirmative or in the negative.
Counsel for the Kentucky State Police (KSP) chose to affirmatively waive
its previous objection by stating “We’re not objecting to the final version.” This
statement was clear and unequivocal. It does not require further interpretation.
Parties are allowed to waive objections, and they should be bound by their
affirmative waivers.
When that question was posed, counsel for KSP could just as easily have
said, “I have no further objections beyond those which I previously raised
regarding these instructions” or “I continue to object to these instructions” or
“Please note my continuing objection” or “We still disagree as to the wording of
the instructions in variance with our proposed instructions,” or a myriad of
other negative responses. We need not try to peer into counsel’s mind to
determine that counsel in fact meant to continue to object despite stating the
opposite.
13 This quotation is from Sgt. Burton’s appellate brief.
13 Therefore, I disagree with the majority opinion’s conclusion that the KSP
should be saved from its previous clear, affirmative statement waiving its
previously preserved objection through our hindsight reinterpretation. I
disagree that we must scour the record to try to save KSP from its improvident
waiver by justifying that it was not really meant to be a waiver.
The majority opinion states in a footnote that it interprets this question
by the trial court as being made “in jest” because the parties laughed. I
disagree that it is appropriate to try to decide if the question was said in a
humorous manner or in jest. Parties should take all questions that a trial court
asks of them seriously and respond accordingly.
I fear that the majority opinion will require that our appellate courts
increasingly be called upon to decipher whether trial courts and parties are
being flippant, jesting, being ironic and the like, essentially being forced into
making factual findings as to their intentions when that is not our role. Parties
should abide by this simple instruction: Let your “yes” be “yes” and your “no”
be “no.” 14
It is an oft-repeated statement that “[t]he appellants will not be permitted
to feed one can of worms to the trial judge and another to the appellate court.”
Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976), overruled on other
grounds by, Wilburn v. Commonwealth, 312 S.W.3d 321, 326-29 (Ky. 2010).
Some version of this “can of worms” phrase appears in fifty published and 230
14 This adage is of course a paraphrase of Matthew 5:37.
14 unpublished Kentucky opinions. 15 There are, of course, many additional
opinions not using this specific phrase that rely on the basic, black-letter-law
concept behind it, that appellate courts do not have the authority to review
issues that were not raised before or decided by the trial court. See, e.g., Reg’l
Jail Auth. v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989) (citing Kentucky cases for
this concept which were published between 1961 and 1938).
We will not be able to use this “can of worms” quote anymore or rely on
the concept behind it. The majority opinion eliminates this whole body of law
by in fact permitting the KSP to feed us a new can of worms, under the guise
that we can independently interpret it as being the old can of worms by
guessing what was in counsel’s mind and adjudging how the trial court should
have interpreted counsel’s statement as meaning the opposite of what was
said.
Additionally, the majority opinion will encourage every competent lawyer
to engage in gamesmanship by packing every conceivable form of relevant jury
instruction into its proposed instructions to preserve every possible issue
regarding jury instructions. The majority opinion, while giving lip service to the
concept that previously preserved objections can be waived, has effectively
eliminated later waivers. Going forward, it will no longer matter whether
15 As adjudged by conducting an “advanced” search in the Kentucky database
on Westlaw for “can of worms.” While not every instance may be referring to the basic underlying concept set out in the quoted sentence, most of such instances are.
15 counsel states it is satisfied with the ultimate instructions, because whatever
counsel says it will not operate as a waiver.
We do a disservice to our trial courts by burdening them with reviewing
extra instructions, and trial counsel by not trusting that they can decide for
themselves to waive past objections through affirmative statements.
Accordingly, I dissent.
Lambert, C.J., joins.
COUNSEL FOR APPELLANT:
Thomas E. Clay Thomas E. Clay, P.S.C.
COUNSEL FOR APPELLEE:
Alea Amber Arnett Shawna Virgin Kincer Lauren Lewis Department of Kentucky State Police