Univ. of Louisville v. Harper

576 S.W.3d 595
CourtCourt of Appeals of Kentucky
DecidedApril 12, 2019
DocketNO. 2014-CA-000668-MR; NO. 2014-CA-000724-MR
StatusPublished
Cited by1 cases

This text of 576 S.W.3d 595 (Univ. of Louisville v. Harper) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Univ. of Louisville v. Harper, 576 S.W.3d 595 (Ky. Ct. App. 2019).

Opinion

ACREE, JUDGE:

The University of Louisville appealed the Jefferson Circuit Court's November 15, 2013 judgment affirming the jury's verdict in favor of Laurel Harper and the award of damages with respect to her claim under the Kentucky Whistleblower Act,1 as well as the March 20, 2014 opinion and order awarding Harper's attorney's fees and costs. Additionally, Harper cross-appealed the trial court's opinion and order denying her motion for front-pay damages.

In an opinion rendered October 21, 2016, this Court reversed the verdict and judgment, and reversed the separate award of attorney fees in favor of Harper. After granting discretionary review, the Kentucky Supreme Court reversed this Court's opinion, reinstated the jury's verdict, and remanded the case to this Court to address issues raised in the original appeal that the Court did not resolve. Harper v. University of Louisville , 559 S.W.3d 796 (Ky. 2018). On remand, we affirm in part and reverse in part.

PREVIOUSLY UNRESOLVED ISSUES

The Supreme Court identified the specific unresolved issues as follows:

The University's appeal to the Court of Appeals raised other issues which, because of its disposition of the directed verdict issue, the Court of Appeals declined to address. Specifically, the University argued that the judgment of the trial court awarded excessive compensatory damages because Harper failed to *598mitigate her loss of income; that Harper was improperly allowed to recover damages for mental anguish she endured as a result of her whistleblower activity; that the trial court erred in awarding interest on the judgment against the University; and that the trial court erred by awarding excessive attorneys' fees to Harper. Harper, on the other hand, argued that these issues were not properly preserved for appellate review. Harper also argued that the trial court erred by denying her claim for front pay damages.
We defer our analysis of those issues and remand the matter to the Court of Appeals for resolution of the issues left unresolved.

Id. at 811-12. The Court now addresses each unresolved issue identified in the Supreme Court's opinion.

(1) Whether the trial court awarded excessive compensatory damages because Harper failed to mitigate her loss of income

Harper "directs our attention to the fact that [several] of the alleged ... errors assigned by appellant[ ] were not preserved and no refutation is made by reply brief." Elwell v. Stone , 799 S.W.2d 46, 48 (Ky. App. 1990). As to this issue, we agree the University failed to identify whether and how it preserved the error.

"It goes without saying that errors to be considered for appellate review must be precisely preserved and identified in the lower court." Skaggs v. Assad, By and Through Assad , 712 S.W.2d 947, 950 (Ky. 1986). A rule of appellate procedure, CR 2 76.12(4)(c)(v), requires "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." CR 76.12(4)(c)(v). The University failed to comply with the rule. Citation in the body of the argument to all the jury instructions does not suffice to preserve the issue for appeal.

The portion of the specific instruction to which the University must be alluding says to the jury: "Do not deduct from the damages awarded, if any, the money earned by Ms. Harper for work she performed or unemployment benefits she received after she was no longer employed at the University of Louisville. The Court will perform any calculations that may be necessary." (Record (R.) 812). The issue is not whether this instruction was proper, but whether the trial court erred by not performing the calculations in the judgment. The University did not preserve that argument, and we must assume the trial court properly determined that no such calculations were necessary.

We decline to address this unpreserved issue further.

(2) Whether Harper was improperly allowed to recover damages for mental anguish she endured as a result of her whistleblower activity

Again, the University failed to strictly comply with CR 76.12(4)(c)(v) regarding preservation of error. This time, however, the University substantially complied with the rule by citing the video transcript where objection was made to Verdict Form No. 3.

Preservation took the form of the University's objection that the instructions on liability for whistleblowing (addressed by Instruction No. 1 and 1(A) ) and the instruction on liability for gender discrimination (addressed in Instruction No. 2) were set out separately, but that Verdict Form No. 3 lumped together damages for gender discrimination (mental anguish)

*599with damages for whistleblowing (back pay and lost wages). (Videotape Transcript (VT) 11/01/13; 09:37:25; R. 810-13). In response to that objection, the trial court said:

The only way it would matter is if, if one of them, if they found on both and reversed on one, so there'd, they'd have a hard time figuring out what the mental anguish is. I'm gonna leave it the way it is. I appreciate the distinction but, but ... the only way it would be a problem is if, under that, that scenario.

(VT 11/01/13; 09:37:44). We understand the trial court's statement as acknowledging that the instruction error would matter only if the jurors failed to understand they could only award damages for mental anguish if they found the University liable for gender discrimination. Unfortunately, the verdict demonstrates the jury, unlike the trial court, did not "appreciate the distinction" between the separate causes of action and their remedies.

Damages for mental anguish are recoverable on claims for gender discrimination brought pursuant to KRS 344.450. Meyers v. Chapman Printing Co., Inc. , 840 S.W.2d 814, 819 (Ky. 1992). Damages for mental anguish are not recoverable on claims brought under the Whistleblower Act, KRS 61.101, et seq. Commonwealth Dep't of Agriculture v. Vinson

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Cite This Page — Counsel Stack

Bluebook (online)
576 S.W.3d 595, Counsel Stack Legal Research, https://law.counselstack.com/opinion/univ-of-louisville-v-harper-kyctapp-2019.