Hall v. Goss Ave. Antiques & Interiors & James Sullivan

Decision Date17 July 2015
Docket NumberNO. 2013-CA-000986-MR,NO. 2013-CA-001051-MR,2013-CA-000986-MR,2013-CA-001051-MR
PartiesBRANDON HALL APPELLANT v. GOSS AVENUE ANTIQUES AND INTERIORS AND JAMES SULLIVAN APPELLEES AND GOSS AVENUE ANTIQUES AND INTERIORS CROSS-APPELLANT v. BRANDON HALL CROSS-APPELLEE
CourtKentucky Court of Appeals

NOT TO BE PUBLISHED

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE ANGELA MCCORMICK BISIG, JUDGE

ACTION NO. 10-CI-007933

CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE ANGELA MCCORMICK BISIG, JUDGE

ACTION NO. 10-CI-007933

OPINION AND ORDER

AFFIRMING

BEFORE: CLAYTON, LAMBERT, J. AND THOMPSON, JUDGES.

CLAYTON, JUDGE: This appeal (2013-CA-000986-MR) and cross-appeal (2013-CA-001051-MR) result from a jury trial and a denial of a summary judgment motion in an action in the Jefferson Circuit Court. After a review of the record and considerations of the arguments of counsel, we affirm the decision of the trial court.

Factual Background

Brandon Hall, the Appellant, was attacked by James Sullivan on November 13, 2009, at the Goss Avenue Antiques and Interiors Mall (Goss Avenue Antiques) located in the Booker-Price Building in Louisville, Kentucky. Goss Avenue Antiques is owned by John Booker and his brother Steve. Sullivan did maintenance work at Goss Avenue Antiques. Sullivan's brother, Kenneth, managed the Goss Avenue Antiques and was property manager for Booker-Price. It was disputed whether Kenneth actually hired his brother to work at Goss Avenue Antiques or whether Sullivan was an independent contractor.

Olivia's Restaurant was also located on the premises. Hall worked at Olivia's Restaurant which was operated by Hall's brother Greg. Sullivan also owned a business, Sullivan and Sons. Sullivan and Sons delivered produce to Olivia's Restaurant. There was an altercation between Sullivan and Hall. Subsequently, Sullivan was convicted of second-degree assault, and was ordered to pay restitution. He also served time for the assault in the penitentiary. Hall brought a lawsuit against Sullivan for the assault and an action against Goss Avenue Antiques for negligent hiring and retention.

Procedural History

Goss Avenue Antiques filed a motion for summary judgment on the claim of negligent hiring and supervision. It argued that James Sullivan was not their employee; that Sullivan's actions were not foreseeable; and that the work that Sullivan was doing for Booker-Price was not one in which either members of the public or other employees would be placed in jeopardy.

The trial court entered an order on August 22, 2012, denying the motion after finding that a genuine issue of material fact existed as to whether Goss Avenue Antiques should have foreseen that Sullivan would have attacked someone while working there. The case was scheduled for trial. Goss Avenue Antiques filed a motion to bifurcate the trial. The first phase of the trial was to address whether Sullivan was an employee of Goss Avenue Antiques. If the jury found that he was, the case would proceed to the second phase to determine what liability, if any, Goss Avenue Antiques had for the injuries caused by Sullivan.

Hall objected to the bifurcation and to the exclusion of evidence of Sullivan's violent past and criminal history. Sullivan's deposition was taken, but Sullivan effectively thwarted any attempt to be examined by Hall's counsel. Sullivan, who was incarcerated at the time of his deposition, declined to fully cooperate since he did not have counsel. He did speak off the record with counsel for Goss Avenue Antiques. For reasons not explained by the parties to this Court, Sullivan did not appear at trial.

During the trial, both parties made motions for directed verdicts which were denied. The jury determined that Sullivan was not an employee, agent or instrumentality of Goss Avenue Antiques and thereby found in its favor.

Hall then filed this appeal, arguing that: the unsigned jury verdict was void and no judgment can be supported by it; placing a deposition transcript or any portion of one into the jury room is clearly reversible error; reading the deposition of James Sullivan was also reversible error; the excerpt from Sullivan's answer was also inadmissible; it was error to deny Hall's motion for directed verdict; and the bifurcation order, as well as the court's application of it, was an abuse of discretion.

Goss Avenue Antiques filed a cross-appeal arguing that: the trial court erred in denying Appellees' motion for summary judgment on the negligent hiring/retention claim; and the trial court erred in its interrogatory to the jury by including "agent" and "instrumentality" in addition to "employee."

As a preliminary matter, we address Hall's motion to strike the reply brief of Goss Avenue Antiques or alternatively to file a sur-reply. We deny the motion and we will now address each substantive argument in turn, applying the appropriate standard of review.

Appeal 2013-CA-000986-MR
Bifurcation Order

Hall first argues that the trial court erred in granting the motion to bifurcate the trial. He contends that although the trial court considered that it "maybe prejudicial" to allow information about Sullivan's criminal acts or other bad acts when deciding the employment issue, it did not consider the prejudice to Hall or make any findings on judicial economy or convenience. We apply an abuse of discretion standard when considering an evidentiary issue.

In Calhoun v. Provence, 395 S.W.3d 476 (Ky. App. 2012), we held that:

...a trial court has broad discretion in ruling on a motion to bifurcate. Island Creek Coal Company v. Rodgers, 644 S.W.2d 339 (Ky. App. 1982). Such a decision will be overturned only if it constitutes an abuse of discretion, which is found where the decision is arbitrary, unreasonable, unfair or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941,945 (Ky. 1999).

Id. at 481. Additionally, Kentucky Rules of Civil Procedure (CR) 42.02 states that:

If the court determines that separate trials will be in furtherance of convenience or will avoid prejudice, or will be conducive to expedition and economy, it shall order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims or issues.

In making its decision, the trial court also considered the case of Calhoun, in which our Court held that:

...separate trials shall be conducted if the court determines that they will be in furtherance of convenience or will avoid prejudice, or will be conducive to expedition and economy.

Id. at 480.

Hall argues that the trial court made no findings on judicial economy or convenience; however, the trial court was not required to make those findings. CR 42.02 allows the court to make a determination based upon alternate grounds and not on all of the grounds listed in CR 42.02. The trial court made a finding of prejudice to Goss Avenue Antiques if the information about Sullivan's criminal or other bad acts was heard prior to making a determination of whether he was an employee of Goss Avenue Antiques. Hall argues that he was prejudiced because the jury did not get to hear about the attack as the underlying event to this action. However, whether Sullivan was an employee was the first decision to be made. We agree with the trial court that the information about the attack should be made in a separate proceeding.

We conclude that the decision to bifurcate the proceeding does not constitute an abuse of discretion and accordingly find no error on this issue.

Motion for Directed Verdict

Hall argues that the trial judge erred in denying his motion for directed verdict because "[t]he evidence was overwhelming that James Sullivan was Goss Avenue's 'employee, agent or instrumentality' as verified by the unrefuted testimony of six witnesses[.]" Appellant's brief at page 31. We disagree. The evidence was conflicting and the trial judge properly denied the motion.

In Daniels v. CDB Bell, LLC, 300 S.W.3d 204, 215 (Ky. App. 2009), this Court held that:

When a directed verdict is appealed, the standard of review on appeal consists of two prongs. The prongs are: "...a trial judge cannot enter a directed verdict unless there is a complete absence of proof on a material issue or if no disputed issues of fact exist upon which reasonable minds could differ."

Citing Bierman v. Klapheke, 967 S.W.2d 16, 18-19 (Ky.1998). "A motion for directed verdict admits the truth of all evidence which is favorable to the party against whom the motion is made." National Collegiate Athletic Ass'n By and Through Bellarmine College v. Hornung, 754 S.W.2d 855, 860 (Ky. 1988), citing Kentucky & Indiana Terminal R. Co. v. Cantrell, 298 Ky. 743, 184 S.W.2d 111 (1944).

If there is conflicting evidence, it is the responsibility of the trier of fact, in this case the jury, to resolve such conflicts. Therefore, when a directed verdict motion is made, the court may not consider the credibility or weight of the proffered evidence because this function is reserved for the trier of fact. National, 754 S.W.2d at 860 (citing Cochran v. Downing, 247 S.W.2d 228 (Ky. 1952).

In order to review the trial court's actions in the case at hand, we must first determine whether the trial court favored the party against whom the motion was made, including all inferences reasonably drawn from the evidence. Next, "the trial court must determine whether the evidence favorable to the party against whom the motion is made is of such substance that a verdict rendered thereon would be 'palpably or flagrantly' against the evidence so as 'to indicate that it was reached as a result of passion or prejudice.'" Id. If the answer to this inquiry is inthe affirmative, we must affirm the trial court's granting of the motion for directed verdict. Moreover, "[i]t is well argued and documented that a motion for a directed verdict raises only questions of law as to whether there is any evidence to support a verdict." Harris v. Cozatt, Inc., 427 S.W.2d...

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