Disabled American Veterans v. Crabb, No. 2003-CA-001388-MR.
| Decision Date | 22 July 2005 |
| Docket Number | No. 2003-CA-001388-MR. |
| Citation | 182 S.W.3d 541 |
| Parties | DISABLED AMERICAN VETERANS, DEPARTMENT OF KENTUCKY, INC. and Samuel Booher, Appellants, v. Wetonah CRABB, Appellee. |
| Court | Kentucky Court of Appeals |
Thomas B. Givhan, Shepherdsville, KY, for Appellant.
Jerry L. Ulrich, New Albany, IN, for Appellee.
Before GUIDUGLI and MINTON, Judges; EMBERTON, Senior Judge.1
Following a jury trial, the circuit court entered judgment in favor of Wetonah Crabb awarding damages in her wrongful termination and slander suit against the Disabled American Veterans, Department of Kentucky, Inc., (DAV-KY) and Samuel Booher. The DAV-KY and Booher have appealed claiming the circuit court committed specific trial errors amounting to abuse of discretion and affecting the outcome of the trial. Upon review of the whole record we must reverse and remand for a new trial because we conclude that the court erred to DAV-KY and Booher's substantial prejudice during the trial by denying their counsel's request to examine notes read into evidence by an important adverse witness and by instructing the jury that it could award joint damages for slander.
Crabb was employed by DAV-KY for nearly ten years. Although she served DAV-KY in several capacities during her whole tenure there, her last position was as DAV-KY's comptroller.
On January 3, 1996, Crabb was called into Booher's office where a confrontation ensued. What happened that day is disputed: Crabb claims Booher fired her from her position with DAV-KY, while Booher claims Crabb quit. Regardless Crabb left her employment with DAV-KY six days later.
On January 31, 1996, Crabb sued DAV-KY, Commander Robert Stambaugh,2 and Sam Booher, individually and in his capacity as Adjutant of DAV-KY. Crabb alleged that she was terminated without "right, cause or justification" resulting in "a breach of the contract of employment." Crabb further alleged that she was denied "the administrative remedies provided in the Constitution and By-Laws of the DAV-KY" and that, while employed, she was "required to perform the duties of her employment in a hostile environment created by and resulting from harassment by certain male co-employees and members of management including the Defendant Booher." Crabb also claimed that upon her departure from DAV-KY, Booher "made false, defamatory and slanderous accusations against [her] causing [her] embarrassment, humiliation and mental distress to her damage and detriment on that account."
After years of motions, discovery requests, and rescheduled hearings, the case came to trial the first time in October 2000. The jury found for Crabb against the DAV-KY for wrongful termination and against Booher for slander. The jury awarded Crabb damages from DAV-KY in the amount of $31,083.33 and from Booher in the amount of $20,000.00.
Following the trial, DAV-KY and Booher filed a motion for judgment notwithstanding the verdict (JNOV); a motion to alter, amend, or vacate judgment; a motion for a new trial; and a motion for an amendment of the court's judgment under CR 60.02. DAV-KY and Booher argued Crabb failed to meet her burden of proof. They also claimed that specific errors of law occurred at trial and that the verdict was not sustained by sufficient evidence.
The trial court granted a new trial. In so doing, the court ruled that an affidavit offered by the defendants should have been considered; that the jury's verdict was supported, in part, by misleading testimony from Crabb about her divorce; and that defense counsel's objections to evidence of slander at variance with that delineated in Crabb's pleadings should have been sustained.
Over two years passed before the second trial. The jury in the second trial found that Crabb was wrongfully terminated from DAV-KY and awarded her $28,082.77 in damages. The jury also found that DAV-KY and Booher were jointly liable to Crabb for slander. The jury awarded her $30,000.00 in damages on the slander charges, with an additional $1,000.00 in punitive damages against Booher. DAV-KY and Booher, again, moved for judgment notwithstanding the verdict and a new trial; but the court denied the motions and signed a judgment in favor of Crabb. This appeal follows.
DAV-KY and Booher make six distinct arguments: first, that the trial court erred in failing to grant a directed verdict or judgment notwithstanding the verdict; second, that the trial court abused its discretion in the jury instruction on slander; third, that the trial court erred in refusing to permit the introduction of the minutes of the January 1996, DAV-KY board meeting; fourth, that the trial court erred by permitting the jury to consider the breach of contract claim; fifth, that the trial court abused its discretion in permitting the testimony of Crabb's ex-husband, James Crabb; and sixth, that the court erred in its jury instructions permitting joint damages against the DAV-KY and Booher. We will discuss each argument separately.
The handling of this appeal compels us to reiterate that the rules of procedure require that "errors to be considered for appellate review must be precisely preserved and identified in the lower court."3 The rules further require appellate briefs to contain statements "with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner."4
The brief filed by DAV-KY and Booher lacks any reference to the record. And both sides fail to cite any pertinent Kentucky case law, statutes, or rules. In their reply brief, DAV-KY and Booher made a weak attempt to recover from this error by offering an array of references and corresponding arguments.
DAV-KY and Booher's brief ignores the rules of procedure. But CR 61.02 does state that an insufficiently raised or preserved error may be reviewed if it constitutes "[a] palpable error which affects the substantial rights of a party...." Under this rule, "appropriate relief may be granted upon a determination that manifest injustice has resulted from the error."5 So for purposes of clarity and diligence and to protect against potential injustice, we will review the arguments made by DAV-KY and Booher.
DAV-KY and Booher first argue that the court abused its discretion by failing to grant their motion for judgment notwithstanding the verdict or a new trial. As a basis for this claim, DAV-KY and Booher contend that Crabb failed to allege the slander charges with sufficient detail in her complaint and that the court erred by allowing this issue to go to the jury. Because of these alleged errors, DAV-KY and Booher assert that the court should have granted their post-judgment motions.
CR 50.02 states:
Not later than 10 days after entry of judgment, a party who has moved for a directed verdict at the close of all the evidence may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict.... A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative.
When reviewing a trial court's denial of JNOV, "we are to affirm ... `unless there is a complete absence of proof on a material issue in the action, or if no disputed issue of fact exists upon which reasonable men could differ.'"6 Likewise, "`[t]he trial court is vested with a broad discretion in granting or refusing a new trial, and this Court will not interfere unless it appears that there has been an abuse of discretion.'"7
The law of defamation differentiates between two types of slander: slander per se and slander per quod. Words are slanderous per se when they "are presumed by law actually and necessarily to damage the person about whom they are spoken."8 The words themselves "must tend to expose the plaintiff to public hatred, ridicule, contempt or disgrace, or to induce an evil opinion of him in the minds of right-thinking people and to deprive him of their friendship, intercourse and society."9 When there is a claim of slander per se, "there is a conclusive presumption of both malice and damage."10 Therefore, "damages are presumed and the person defamed may recover without allegation or proof of special damages."11
In contrast, words that are slanderous per quod are not actionable on their face, "but may be so in consequence of extrinsic facts showing damage which resulted to the injured party."12 With slanderous per quod statements, "[c]ourts focus not upon the actual meaning of the words but on the extrinsic facts which explain the meaning of the communications."13 To establish an action for slander per quod, a plaintiff must affirmatively prove "special damages, i.e., actual injury to reputation...."14
DAV-KY and Booher argue that Crabb's complaint was deficient because the slanderous words were not pled with specificity. Because Crabb did not plead the "specifics of the circumstances," they claim the trial court should have granted their motion for JNOV or a new trial.
In her complaint, Crabb alleged that Booher "made false, defamatory and slanderous accusations against [her] causing [her] embarrassment, humiliation and mental distress to her damage and detriment on that account." At trial, witness testimony revealed that the alleged slander concerned two different matters: first, that Crabb had engaged in a "sexual liaison" with one of her co-workers; and, second, that Crabb misappropriated or attempted to misappropriate funds.
Upon review of the record, we are satisfied that the defamatory statements were sufficiently disparaging on their face to constitute an allegation of slander per se. Comments regarding Crabb's supposed affair with a co-worker and her apparent mishandling of funds...
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