12 S.W.3d 269 (Ky. 1999), 98-SC-0684, Fratzke v. Murphy

Docket Nº98-SC-0684-DG.
Citation12 S.W.3d 269
Opinion JudgeJOHNSTONE
Party NameRhonda FRATZKE, Appellant, v. Bernadette MURPHY, Appellee.
AttorneyCharles A. Saladino, David Vance Oakes, Saladino Law Firm, Paducah, for Appellant. Robert L. Prince, Prince & Brien, P.S.C., Benton, for Appellee.
Judge PanelCOOPER, J., Special Justice SUSAN WESLEY McCLURE, STUMBO, J., and WINTERSHEIMER, J., concur. LAMBERT, Chief Justice, dissenting. KELLER, Justice, dissenting.
Case DateDecember 16, 1999
CourtUnited States State Supreme Court (Kentucky)

Page 269

12 S.W.3d 269 (Ky. 1999)

Rhonda FRATZKE, Appellant,

v.

Bernadette MURPHY, Appellee.

No. 98-SC-0684-DG.

Supreme Court of Kentucky

December 16, 1999.

Rehearing Denied March 23, 2000.

Page 270

Charles A. Saladino, David Vance Oakes, Saladino Law Firm, Paducah, for Appellant.

Robert L. Prince, Prince & Brien, P.S.C., Benton, for Appellee.

OPINION

JOHNSTONE. Justice

Appellant, Rhonda Fratzke, appeals from a decision of the Court of Appeals reversing the Marshall Circuit Court in part and remanding. We affirm.

While walking a picket line, Fratzke was hit by a car driven by appellee, Bernadette Murphy, on December 3, 1992. Subsequently, Fratzke filed a complaint against Murphy. In the complaint, she alleged inter alia:

As a result of the negligence of the Defendants, Bernadette Murphy and Guard Screen, Company, Inc., the Plaintiff has been forced to incur hospital [,] doctor, medical and drug expenses in an amount in excess of One Thousand Dollars ($1,000.00) and will be forced to incur same in the future; she has undergone physical and mental pain and suffering and will be forced to undergo same in the future; she has suffered a permanent injury; and her ability to earn money has been permanently impaired; and she has been damaged thereby.

On August, 7, 1995, the trial court entered an order directing that trial briefs be filed at least twenty days prior to trial. The briefs were to contain an itemized list of the claimed special damages sought by the parties.

On October 4, 1995, Murphy served a set of interrogatories on Fratzke that included a request to identify "each item of damage, including pain and suffering, which you claim arises out of this action...." In response to the interrogatories, Fratzke provided only an itemized list of medical expenses incurred to date. Further, in her trial brief, Fratzke included only a list of medical expenses.

This trial commenced on December 27, 1995. During opening statements, Murphy's counsel objected to references made by Fratzke's attorney concerning damages other than those listed in Fratzke's interrogatory answers or in her trial brief. The trial court reserved its ruling on the issue and allowed Fratzke's attorney to continue his opening argument.

After closing arguments, Murphy's counsel objected to instructing the jury on any damages other than medicals. After noting Fratzke's failure to fully comply with the court's order concerning the trial brief or to fully answer Murphy's interrogatories, the trial court nonetheless overruled the objection stating that such a result was unduly harsh. The trial court

Page 271

then submitted the case to the jury with instructions to award Fratzke damages that fairly and reasonably compensated her for: pain and suffering, medical expenses, future medical expenses, lost wages, and permanent impairment of power to labor and earn money. The jury returned with a verdict that awarded Fratzke $25,000 in pain and suffering, $33,513.62 for medical expenses, $12,000 for future medical expenses, $27,500 for lost wages, and $25,000 for permanent impairment of her power to labor and earn money. The trial court entered a judgment in accordance with this verdict on February 5, 1996.

The trial court denied Murphy's motion to "Alter, Amend, or Vacate Judgment; Alternative Motion for New Trial" on March 1, 1996. Subsequently, Murphy appealed to the Court of Appeals arguing in pertinent part that CR 8.01(2) precluded Fratzke from recovering damages for pain and suffering, future medicals, lost wages, and impairment of earning power because amounts for those unliquidated damages were not included in Fratzke's answers to interrogatories.

The Court of Appeals originally affirmed the trial court in full. Murphy sought discretionary review in this Court and we remanded the case to the Court of Appeals to reconsider its decision in light of Burns v. Level, Ky., 957 S.W.2d 218 (1997). Upon reconsideration, the Court of Appeals reversed the trial court's award of damages in question and remanded with instructions to vacate that portion of the judgment which awarded Fratzke damages for pain and suffering, future medicals, lost wages, and impairment of earning power. Fratzke then sought discretionary review of the second Court of Appeals' decision, which we granted. We affirm for the reasons set forth below.

CR 8.01(2) states:

In any action for unliquidated damages the prayer for damages in any pleading shall not recite any sum as alleged damages other than an allegation that damages are in excess of any minimum dollar amount necessary to establish the jurisdiction of the court; provided, however, that all parties shall have the right to advise the trier of fact as to what amounts are fair and reasonable as shown by the evidence. When a claim is made against a party for unliquidated damages, that party may obtain information as to the amount claimed by interrogatories; if this is done, the amount claimed shall not exceed the last amount stated in answer to interrogatories.

Murphy propounded an interrogatory which requested Fratzke to identify "each item of damage, including pain and suffering, which you claim arises out of this action...." This clearly encompassed Fratzke's claims of damages for pain and suffering, future medicals, lost wages, and impairment of earning power as these claims were stated in the complaint. Further, these claims are clearly unliquidated damages within the meaning of CR 8.01(2). Fratzke did not object to this interrogatory, nor was her answer non-responsive since it provided a list of medical expenses incurred to date. By omitting an amount for any damage claim other than her medical expenses incurred to date, Fratzke effectively stated that her claim for her unliquidated damages was nothing. Thus, under the rule, Fratzke's claim for unliquidated damages at trial could not exceed $0.00.

Fratzke first tries to find safe harbor in CR 15.02, however, there is no place within the rule for her to weigh anchor.

CR 15.02 states in pertinent part:

If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that admission of such evidence would prejudice

Page 272

him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

CR 15.02 only applies to pleadings. CR 7.01 sets forth an inclusive list of documents that constitute "pleadings" within the context of our civil rules. Further, the rule specifically provides: "No other pleading shall be allowed...." (emphasis added). Interrogatories are not included within the CR 7.01 inclusive list of pleadings; thus, interrogatories are not "pleadings" within the meaning of the civil rules. Consequently, CR 15.02 has no application to the case at bar. This result is neither harsh nor hyper-technical. Fratzke had a simpler method of amending her claim for unliquidated damages that did not require Fratzke to make a motion to the trial court.

The language of CR 8.01(2) clearly implies that Fratzke had the right to supplement her answers to Murphy's interrogatories concerning her claims for unliquidated damages: "... the amount claimed shall not exceed the last amount stated in answer to interrogatories." (Emphasis added). If she did not have the right...

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31 practice notes
  • Grant Thornton, Llp v. Yung, 091616 KYCA, 2014-CA-001957-MR
    • United States
    • Kentucky Court of Appeals of Kentucky
    • September 16, 2016
    ...not seasonably supplement the answer, that party cannot recover more than the last amount identified. Fratzke v. Murphy, 12 S.W.3d 269, 272 (Ky. 1999). Grant Thornton argues that the Yungs are barred from recovering for additional taxes and issues beyond what they s......
  • Jarrett v. Jarrett, 083107 KYCA, 2006-CA-001557-MR
    • United States
    • Kentucky Court of Appeals of Kentucky
    • August 31, 2007
    ...on his contention that Cynthia was required to specifically identify the amounts of each of her claims, relying on Fratzke v. Murphy, 12 S.W.3d 269 (Ky. 1999). He asserts that the trial court exhibited bias in favor of Cynthia by failing to enforce this requirement. But the notice requireme......
  • Pal Oil, LLC v. United American Energy, LLC, 102612 KYCA, 2011-CA-000744-MR
    • United States
    • Kentucky Court of Appeals of Kentucky
    • October 26, 2012
    ...000, or at least by $116, 900.69 because those damages were awarded in excess of the total amount last claimed by UAE. Fratzke v. Murphy, 12 S.W.3d 269, 271 (Ky. 1999); Lafleur v. Shoney's Inc., 83 S.W.3d 474 (Ky. 2002). To the extent that the appellants argue that Fratzke or Lafleur mandat......
  • Grant Thornton, LLC v. Yung, 093016 KYCA, 2014-CA-001957-MR
    • United States
    • Kentucky Court of Appeals of Kentucky
    • September 30, 2016
    ...not seasonably supplement the answer, that party cannot recover more than the last amount identified. Fratzke v. Murphy, 12 S.W.3d 269, 272 (Ky. 1999). Grant Thornton argues that the Yungs are barred from recovering for additional taxes and issues beyond what they s......
  • Request a trial to view additional results
31 cases
  • Grant Thornton, Llp v. Yung, 091616 KYCA, 2014-CA-001957-MR
    • United States
    • Kentucky Court of Appeals of Kentucky
    • September 16, 2016
    ...not seasonably supplement the answer, that party cannot recover more than the last amount identified. Fratzke v. Murphy, 12 S.W.3d 269, 272 (Ky. 1999). Grant Thornton argues that the Yungs are barred from recovering for additional taxes and issues beyond what they s......
  • Jarrett v. Jarrett, 083107 KYCA, 2006-CA-001557-MR
    • United States
    • Kentucky Court of Appeals of Kentucky
    • August 31, 2007
    ...on his contention that Cynthia was required to specifically identify the amounts of each of her claims, relying on Fratzke v. Murphy, 12 S.W.3d 269 (Ky. 1999). He asserts that the trial court exhibited bias in favor of Cynthia by failing to enforce this requirement. But the notice requireme......
  • Pal Oil, LLC v. United American Energy, LLC, 102612 KYCA, 2011-CA-000744-MR
    • United States
    • Kentucky Court of Appeals of Kentucky
    • October 26, 2012
    ...000, or at least by $116, 900.69 because those damages were awarded in excess of the total amount last claimed by UAE. Fratzke v. Murphy, 12 S.W.3d 269, 271 (Ky. 1999); Lafleur v. Shoney's Inc., 83 S.W.3d 474 (Ky. 2002). To the extent that the appellants argue that Fratzke or Lafleur mandat......
  • Grant Thornton, LLC v. Yung, 093016 KYCA, 2014-CA-001957-MR
    • United States
    • Kentucky Court of Appeals of Kentucky
    • September 30, 2016
    ...not seasonably supplement the answer, that party cannot recover more than the last amount identified. Fratzke v. Murphy, 12 S.W.3d 269, 272 (Ky. 1999). Grant Thornton argues that the Yungs are barred from recovering for additional taxes and issues beyond what they s......
  • Request a trial to view additional results

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