Opinion
2023-CA-0596-MR
09-06-2024
DECKER SERVICES, LLC APPELLANT v. CARRIE PRITCHARD AND JAMES "JIM" SHELTON, INDIVIDUALLY AND D/B/A JIM SHELTON CONSTRUCTION APPELLEES
BRIEFS FOR APPELLANT: David F. Broderick Brandon T. Murley BRIEF FOR APPELLEE CARRIE PRITCHARD: James R. Laramore
NOT TO BE PUBLISHED
APPEAL FROM WARREN CIRCUIT COURT HONORABLE CHRISTOPHER T. COHRON, JUDGE ACTION NO. 19-CI-00333.
BRIEFS FOR APPELLANT: David F. Broderick Brandon T. Murley
BRIEF FOR APPELLEE CARRIE PRITCHARD: James R. Laramore
BEFORE: THOMPSON, CHIEF JUDGE; ACREE AND CALDWELL, JUDGES.
OPINION
CALDWELL, JUDGE:
Decker Services, LLC (Decker) appeals from a jury verdict awarding Carrie Pritchard (Pritchard) damages for breach of contract. We affirm.
FACTUAL AND PROCEDURAL HISTORY
In late 2016, a tree fell on Pritchard's home, causing significant damage. Pritchard contacted Joseph Decker (Joseph), the owner of Decker, to repair the extensive damage. Joseph went to Pritchard's home to view the situation. James Shelton (Shelton), who had worked with Joseph previously, also was present, at Joseph's invitation. In short, Shelton became involved in repairing Pritchard's home on Joseph's initiative, not Pritchard's.
It appears uncontested that Joseph, on behalf of Decker, agreed to remove the tree and repair Pritchard's roof. It is also uncontested that at some point Shelton, d/b/a Jim Shelton Construction, agreed to level the foundation of Pritchard's home. However, whether Pritchard and Joseph agreed that Decker would complete the other repairs is disputed.
Pritchard's basic version of events was that she and Joseph agreed that Decker would make all the necessary repairs caused by the fallen tree. Under Pritchard's view of the facts, Joseph designated Shelton to, essentially, oversee the day-to-day repair operations. Joseph's basic version of events was that he agreed only that Decker would remove the tree and repair the roof and the remaining repairs were performed by Shelton without Decker's approval.
Pritchard eventually became dissatisfied with the pace and quality of the non-roof-related repairs. She brought this action against Decker and Shelton, individually and d/b/a Jim Shelton Construction. Joseph was not a named defendant. Decker brought a crossclaim against Shelton and Shelton Construction.
The matter proceeded to a multi-day jury trial, at which Shelton did not appear. The jury awarded Pritchard $25,036.43 in damages (jointly and severally between Decker and Shelton, individually and d/b/a Jim Shelton Construction) and Decker $15,000 on its crossclaim. After the trial court denied its combined CR 59.05 motion to alter, amend, or vacate and motion for judgment notwithstanding the verdict, Decker filed this appeal.
Kentucky Rules of Civil Procedure.
Though a named appellee, Shelton has not participated in this appeal.
ANALYSIS
As a prefatory note, to avoid this lengthy Opinion becoming completely unwieldy, we shall address only those arguments and citations to authority which are crucial to resolve the limited issues before us. "We have considered the parties' extensive arguments and citations to authority but will discuss only the arguments and cited authorities we deem most pertinent, the remainder being without merit, irrelevant, or redundant." Schell v. Young, 640 S.W.3d 24, 29 n.1 (Ky. App. 2021).
Appellant's Deficient Brief
"We regret having to address, yet again, an attorney's failure to comply with rules of appellate procedure." French v. French, 581 S.W.3d 45, 47 (Ky. App. 2019). But we cannot ignore the three major deficiencies in Decker's opening brief. First, the brief does not contain an appendix. RAP 32(E)(1)(a) provides:
Kentucky Rules of Appellate Procedure.
An appellant and a cross-appellant must attach an appendix to the party's initial brief. The first item of the appendix shall be a listing or index of all documents included in the appendix. The appellant shall place the judgment, opinion, or order under review immediately after the appendix list so that it is most readily available to the court.(Emphasis added.) Obviously, the usage of compelling verbs such as must and shall means an appellant is required to attach an appendix to its opening brief. And the appellant must place a copy of the judgment or order from which the appeal is taken at the front of the appendix. Decker unquestionably failed to comply with RAP 32(E)(1)(a).
The failure to include an appropriate appendix is not a trifling omission. The purpose of the appendix, especially the mandatory inclusion of the order or judgment from which the appeal is being taken at the beginning of that appendix, is to allow us to avoid having to rummage through the record, which contains multiple volumes in the case at hand; to ascertain the basis for the trial court's challenged decision; and to determine easily whether, and how, the trial court addressed the issues raised by the parties. We lack the time and resources to scour a record to search for items which a party failed to meet its duty to provide.
The second major deficiency in the brief is its failure to sufficiently cite to the trial court record, especially the video of the trial. RAP 32(A)(3) and (4) require the statement of the case and arguments sections of an appellant's opening brief to contain "ample references to the specific location in the record" where "each" issue of law or factual statement may be located. Though "ample" is not defined in RAP 32, we have held it means citations to the trial court record must "permeate" the brief. Clark v. Workman, 604 S.W.3d 616, 619 (Ky. App. 2020).
Clark is applicable even though it was issued prior to the 2023 advent of RAP because the former CR 76.12, which then governed appellate briefs, also required "ample" citations to the trial court record. Clark, 604 S.W.3d at 619.
The statement of the case section of Decker's opening brief is a little over two pages in length, but it contains only one citation to the video record of the trial and five citations to the written record. Entire paragraphs in that section of Decker's brief contain no citations to the written or video record.
The frustrating lack of citations is perhaps best exemplified by highlighting the following example. Decker's statement of the case provides that "[t]he parties each testified concerning their perceptions and understanding related to the issue of whether an agreement existed between Pritchard and Decker Services, LLC for repair work to Pritchard's home." Appellant's Opening Brief, p. 2. But Decker provides no citations to any specific testimony. It is improper for a party to expect a reviewing court to review multiple days of a trial to ascertain what relevant testimony was presented.
The lack of ample citations to the record was not ameliorated by Decker's reply brief, which contains two citations to the written record (both regarding the first issue, meaning there are none regarding the two other issues) and zero citations to the video record of the trial.
In fact, Decker's reply brief is also noncompliant. The five-page reply brief does not contain a mandatory word count certificate. Reply briefs generated on a computer, as was Decker's, "shall not exceed 1,750 words or 4 pages if computer-generated ...." RAP 31(G)(2)(b). Since the reply brief exceeds four pages, Decker was required to submit a word-count certificate under RAP 31(G)(1). As RAP 15(C) provides in relevant part: "A computer-generated document that exceeds the page limits for a computer-generated document, but that is within the relevant word limit, must include a certificate by the attorney . . . that the brief falls within the relevant word limit. The certificate must also state the number of words in the portion of the brief subject to the word limit." We have elected to not impose additional sanctions for the deficient reply brief, though its noncompliance underscores and reiterates Decker's counsel's wholesale failure to follow the briefing requirements of RAP.
"Supporting factual assertions with pinpoint citations may, in fact, be the most substantial requirement of CR 76.12 [now RAP 32].... Expeditious relief would cease to exist without this requirement." Commonwealth v. Roth, 567 S.W.3d 591, 595 (Ky. 2019) (footnotes omitted). We will not "sift through" a record "to try to ascertain facts ...." Id. (internal quotation marks and citation omitted). A failure to provide pinpoint citations to the record justifies the imposition of severe sanctions. Id. at 595-96 (striking a brief and dismissing an appeal due to a failure to provide ample citations to the record). See also RAP 10(B) (Similarly allowing us to impose sanctions such as levying fines, striking briefs, or dismissing appeals due to "the failure of a party to substantially comply with the rules ....").
Roth was issued when appellate briefs were governed by CR 76.12, but Roth's holding is applicable since RAP 32 is substantially similar to the former CR 76.12.
The vexing lack of adequate citations to the record continues into the argument section of Decker's brief. Although there are more plentiful citations to the video record of the trial in the first argument, there are none in the second argument. There are not even any citations to the written record in the second argument. In short, the second argument contains zero citations to the record. The complete lack of citations to the record in Decker's second argument is rendered even more egregious by the fact that the argument involves the relief necessary due to an allegedly improper question asked by Pritchard's counsel at trial. At absolute bare minimum, Decker was required to provide a pinpoint citation to when that question was asked.
In sum, it is plain that Decker has violated RAP 32(A)(3) and (4) because citations to the record do not "permeate" its opening brief.
The third main deficiency in Decker's opening brief is even more troubling. RAP 32(A)(4) provides that the argument section of an appellant's opening brief "shall contain 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." Two of the three arguments in Decker's brief fail to satisfy this straightforward requirement.
Decker's first argument is that the trial court erred by denying its motion for a directed verdict. The brief cites to a motion for judgment notwithstanding the verdict, which is obviously a post-trial motion, not a contemporaneous request for a directed verdict lodged during the trial. The brief then states as follows: "This argument was properly preserved for appellate review when Decker Services moved for a directed verdict at the close of evidence arguing that Pritchard had not proven a contract." The brief frustratingly does not contain a pinpoint citation to where Decker moved for a directed verdict.
Decker's second argument is similarly flawed. That argument involves the trial court's refusal to declare a mistrial or grant post-judgment relief based on Pritchard's counsel's having asked Joseph about his involvement in prior litigation. The brief states: "This issue was preserved for appeal when counsel for Decker Services immediately moved for [a] mistrial and then again moved to vacate/alter/amend the trial order and judgment based on this issue." However, Decker does not provide a pinpoint citation to the question or the motion for a mistrial. In fact, Decker does not provide a pinpoint citation to its post-trial motion to alter, amend, or vacate in this section.
Decker does not initially provide a pinpoint citation to where the third issue is preserved but does in a later paragraph and in the statement of the case section. We will leniently construe this argument to contain a substantially compliant preservation statement.
Technically, Decker's brief contains preservation statements. However, a preservation statement unaccompanied by a pinpoint citation to the record indicating where, and how, the issue was preserved for appellate review is the functional equivalent of not having one at all because it improperly places the burden on the court to a) sift through the record to find the specific motion/objection/request for relief and b) make sure the arguments raised in the trial court mirror the ones raised on appeal. See, e.g., Koester v. Koester, 569 S.W.3d 412, 415 (Ky. App. 2019) (Noting that the requirement in the former CR 76.12, which was substantially the same as that in RAP 32, "is designed to save the appellate court the time of canvassing the record in order to determine if the claimed error was properly preserved for appeal.") (internal quotation marks and citation omitted). The net practical impact is that Decker's brief does not contain a meaningful preservation statement for two of its three issues. Since a preservation statement which cites generically to an eighty-four page swath of the record has "no meaningful value," Curty v. Norton Healthcare, Inc., 561 S.W.3d 374, 377 (Ky. App. 2018), then the preservation statements at hand for the first two issues, which contain no pinpoint cites to the record, have utterly no practical value.
When considered together, the three major deficiencies in Decker's brief render it too egregiously deficient to ignore.
We have been ever increasingly awash in deficient briefs in recent years. Nearly four years ago we lamented the "ongoing problem of noncompliant briefing[.]" Bewley v. Heady, 610 S.W.3d 352, 355 n.1 (Ky. App. 2020). Citing statistics taken from our opinions, we lamented that "[t]he prodigious number of attorneys appearing in Kentucky's appellate courts lacking the skill, will, or interest in following procedural rules is growing." Clark, 604 S.W.3d at 616-17. The problem has unfortunately increased in frequency and severity.
As even a rudimentary search of our rendered opinions in the past few years would sadly show, we have attempted many times to point out briefing deficiencies while leniently declining to impose sanctions. Our hope, lamentably in vain, was that we would prod the appellate bar into complying with the mandatory briefing rules without imposing sanctions whose brunt would mainly be felt by clients. Unfortunately, our dire warnings have been unsuccessful. Thus, as we recently emphasized, "our reluctance to sanction should come to an end[.]" J.P.T. v. Cabinet for Health and Family Services, 689 S.W.3d 149, 153 (Ky. App. 2024).
Sometimes we have declined to sanction attorneys for submitting noncompliant briefs because the attorney has no history of having submitted a noncompliant brief. See, e.g., Bewley, 610 S.W.3d at 355. Here, however, a rudimentary and non-exhaustive Westlaw search reveals that one of Decker's attorneys has submitted noncompliant briefs at least twice. For example, in Gaunce v. Gaunce, No. 2009-CA-001758-ME, 2011 WL 1196431, at *4 (Ky. App. Apr. 1, 2011) (unpublished), a brief submitted by counsel failed to contain a preservation statement for six of the seven arguments. Instead of striking the brief, we reviewed the six arguments for which no preservation statement was submitted only for manifest injustice. Id. Similarly, a brief submitted by counsel in Comer v. Comer, Nos. 2003-CA-002468-MR, 2003-CA-002491-MR, 2006 WL 204777, at *12 (Ky. App. Jan. 27, 2006) (unpublished) did not contain a proper preservation statement.
The takeaway for the appellate bar is this: absent compelling and unusual circumstances, we are inclined going forward to impose sanctions, as set forth in RAP 10(B), for the submission of a substantially noncompliant brief. The bar must comply with RAP Immediately.
We urge the bar to scrutinize RAP and the basic appellate handbook found on our website. https://www.kycourts.gov/Courts/Court-of-Appeals/Documents/P56BasicAppellatePracticeHandbook.pdf (last visited May 20, 2024).
As to Decker's brief's failure to cite amply to the record and failure to include the mandatory appendix, we impose a fine on counsel by separate order issued this same date. See RAP 10(B)(4) (Permitting "[i]mposition of fines on counsel for failing to comply with these rules of not more than $1,000[.]").
As to Decker's brief's failure to provide an adequate preservation statement for the first two issues, we leniently decline to strike the brief. However, we also decline to overlook the glaring, egregious deficiencies because it is plain that Decker has failed to "substantially comply with the rules[.]" RAP 10(B). Accordingly, we shall review the issues raised by Decker for which the brief does not contain an adequate preservation statement only for manifest injustice. See Ford v. Commonwealth, 628 S.W.3d 147, 155 (Ky. 2021) ("If a party fails to inform the appellate court of where in the record his issue is preserved, the appellate court can treat that issue as unpreserved."); CR 61.02 ("A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.").
An error is palpable if it is "so egregious that it jumps off the page . . . and cries out for relief[,]" Chavies v. Commonwealth, 374 S.W.3d 313, 323 (Ky. 2012) (internal quotation marks and citation omitted), and is so elemental as to be "easily perceptible, plain, obvious and . . . so serious that it would seriously affect the fairness to a party if left uncorrected." Hibdon v. Hibdon, 247 S.W.3d 915, 918 (Ky. App. 2007) (internal quotation marks and citations omitted).
The Denial of Decker's Motion for a Directed Verdict on the Breach of Contract Claim Is Not a Manifest Injustice
Pritchard brought a breach of contract claim against Decker. It appears uncontested that there was no written contract between Pritchard and Decker, but oral contracts which do not run afoul of the statute of frauds (KRS371.010) may be enforceable. See, e.g., Veluzat v. Janes, 462 S.W.2d 194, 196 (Ky. 1970). Unsurprisingly, one of the elements for a breach of contract claim is the existence of a contract. EQT Production Company v. Big Sandy Company, L.P., 590 S.W.3d 275, 293 (Ky. App. 2019).
Kentucky Revised Statutes.
Decker vehemently denies contracting with Pritchard to perform any repairs to her home beyond removing the tree and repairing the roof. Decker contends the trial court should have granted his motion for a directed verdict or judgment notwithstanding the verdict (JNOV) because Pritchard failed to prove the existence of a contract to repair the remainder of the damages. Decker asserts that Shelton agreed to perform the repairs without Decker's knowledge or acquiescence. In other words, Decker asserts any faulty or incomplete repairs had to have been adjudged to be the fault of Shelton alone. We disagree.
See CR 50.02 ("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[.]").
If the issue is properly preserved, we apply the following familiar standard of review governing a directed verdict or JNOV:
In ruling on either a motion for a directed verdict or a motion for judgment notwithstanding the verdict, a
trial court is under a duty to consider the evidence in the strongest possible light in favor of the party opposing the motion. Furthermore, it is required to give the opposing party the advantage of every fair and reasonable inference which can be drawn from the evidence. And, it is precluded from entering either a directed verdict or judgment n.o.v. unless there is a complete absence of proof on a material issue in the action[.]Taylor v. Kennedy, 700 S.W.2d 415, 416 (Ky. App. 1985). Here, however, we shall review for manifest injustice only as Decker has not provided a proper preservation statement. We would also affirm if Decker had provided a proper preservation statement.
At root, we must ascertain whether there was any evidence to show the existence of an oral contract between Pritchard and Decker. There was.
First, Pritchard testified that Decker agreed to take "the job" though, admittedly, her testimony was not optimally clear on the extent of "the job." Second, there is evidence that Decker received funds for repairs beyond removing the tree or repairing the roof. Decker Services sent Pritchard an invoice for slightly over $18,000 which referenced a specific State Farm Insurance quote. That itemized State Farm quote detailed numerous non-roof-related repairs, such as painting baseboards and doors. Decker admitted a check for the amount of the invoice and State Farm quote (minus Pritchard's deductible) was deposited into Decker's bank account. In other words, Decker received funds for non-roof-related repairs. There is no obvious, logical explanation why Decker would be entitled to payment for those repairs if Decker had not agreed to perform them. The jury could have reasonably inferred, construing the evidence in the light most favorable to Pritchard, that Decker had contracted with Pritchard to perform repairs beyond removing the tree and fixing the roof.
In short, there was conflicting evidence about whether Decker and Pritchard orally agreed to have Decker perform repairs beyond those needed to remove the tree and fix the roof. Consequently, Decker was not entitled to either a directed verdict or JNOV. Decker certainly has not shown an egregious error rising to the level of being a manifest injustice.
The Denial of a Mistrial Due to the Mention of Decker's Involvement in Other Litigation Is Not a Manifest Injustice
Near the close of the trial, Pritchard's counsel asked Joseph if he had been involved in other litigation. Joseph responded that he had not. Pritchard's counsel then began to ask Joseph about a list of nine other lawsuits involving Decker (or, perhaps, Joseph personally). Decker's counsel objected. At the ensuing bench conference, Decker's counsel moved for a mistrial, which the trial court denied. Instead, the trial court admonished the jury to disregard the question about other litigation. Decker's counsel did not then assert that the admonition was insufficient. Decker now claims the trial court erred by denying its motion for a mistrial. We disagree.
Before we discuss the standards governing mistrials, we note that the bulk of Decker's argument is framed to indicate that the trial court erred in denying Decker's post-trial motion to alter, amend, or vacate. We have made plain, however, that we lack jurisdiction over the denial of such a motion:
even if we did believe the trial court erred in some fashion in connection with its denial of CR 59.05 relief, we could not provide a remedy for the simple reason that we do not have jurisdiction over the trial court's denial of a CR 59.05 motion. Orders denying CR 59.05 relief are interlocutory, i.e., non-final and non-appealable and cannot be made so by including the finality recitations.... The Court of Appeals lacks jurisdiction to hear cases from interlocutory orders. While there are a few exceptions to that general rule, none of those exceptions address orders on CR 59.05 motions.Ford v. Ford, 578 S.W.3d 356, 365 (Ky. App. 2019) (internal quotation marks and citations omitted). We shall focus on whether Decker was entitled to a mistrial, not on the denial of the CR 59.05 motion.
If the issue has been shown to have been properly preserved, the standards governing whether to declare a mistrial are:
A motion for mistrial presents not only competing interests but also an unlimited number of varying and unique situations. For these reasons rigid, per se standards have been rejected. In order for a trial judge to grant a mistrial the record must reveal a manifest necessity for such an action or an urgent or real necessity. This test permits a balancing of the competing interests present whenever a motion for a mistrial is advanced. Furthermore, it recognizes that each situation must be analyzed according to the unique facts presented....
It is universally agreed that a mistrial is an extreme remedy and should be resorted to only when there is a fundamental defect in the proceedings which will result in a manifest injustice. The occurrence complained of must be of such character and magnitude that a litigant will be denied a fair and impartial trial and the prejudicial effect can be removed in no other way.... ....
. . .
A mistrial should be granted only when no other remedy will provide relief to the moving party. In most instances the prejudicial event can be rectified by a curative admonition.Gould v. Charlton Co., Inc., 929 S.W.2d 734, 738-40 (Ky. 1996) (internal quotation marks and citations omitted). We review the denial of a motion for a mistrial under the deferential abuse of discretion standard. Oghia v. Hollan, 363 S.W.3d 30, 32 (Ky. App. 2012). However, we review only for manifest injustice here because Decker failed to include a compliant preservation statement. We discern no manifest injustice. Indeed, we would affirm even if we applied the usual standards of review.
Our analysis is made more difficult by Decker's failure to cite in its brief to when the discussion of prior litigation occurred. "It is well-settled that an appellate court will not sift through a voluminous record [or watch a multi-day trial in its entirety] to try to ascertain facts when a party has failed to comply with its obligation . . . to provide specific references to the record." Parker v. Commonwealth, 291 S.W.3d 647, 676 (Ky. 2009) (footnotes omitted). Fortunately for Decker, Pritchard's brief contains a pinpoint citation to the relevant events. Unfortunately for Decker, a review of those events shows that no relief is warranted.
Decker argues it is entitled to relief under Morris v. Daniel, 465 S.W.2d 295 (Ky. 1971), an unusual case which has only been cited once by an appellate court in the over fifty years since it was published - and even that cite falls within a string cite in a dissent to an unpublished opinion. Brown v. Clayton, No. 2003-SC-0121-MR, 2003 WL 22415740, at *3 (Ky. Oct. 23, 2003) (unpublished) (Cooper, J., dissenting). Nonetheless, we acknowledge that Morris is binding authority. However, it is materially distinguishable.
In Morris, nearby landowners sued the owner of a coal mine for "casting deleterious substances on their farm, permanently damaging the real estate." 465 S.W.2d at 295. At trial, the landowners' attorney repeatedly asked the coal mine owner about similar suits and complaints raised by other landowners, to which the coal mine owner's attorney repeatedly objected. Id. at 295-98. The landowners' attorney also asked the coal mine owner if he had prevented his employees from joining a union, a particularly inflammatory question since four members of the jury were union miners. Id. at 298. The trial court denied the coal mine owner's motion for a mistrial but admonished the jury to disregard questions and answers to which the court had sustained objections. Id.
Kentucky's then-highest Court held that "[i]t appears beyond cavil that it was erroneous to offer evidence concerning other lawsuits and alleged antiunion activities.... [T]he mere fact that other persons have filed suits or made complaints does not tend to prove whether a similar accident or injury occurred." Id. So, though Morris predates the adoption of the Kentucky Rules of Evidence, we will accept (for the sake of argument) that its holding means it was improper for Pritchard to ask Joseph about his or Decker Services' involvement in prior, unrelated litigation. Nonetheless, a mistrial was not necessary.
First, the mention of prior, unrelated litigation here was brief, comprising only a few seconds out of a multi-day trial. By contrast, in Morris there was "repeated questioning about other litigation[.]" Id. at 299.
Second, the questions in Morris were plainly framed in such a manner as to indicate that the coal mine owner had been sued for undertaking the same acts which were at issue in that trial. By way of illustrative example, one question asked of the coal miner was "Did Glen Wells sue you over this very same thing in s957 [sic, presumably 1957] - in this Court?" Id. at 297. Here, the question was about Decker's involvement in prior litigation - there was no framing to indicate to the jury that the question was aimed solely at showing that Decker had been named as a defendant in prior litigation or had been accused therein of having provided similarly incomplete or substandard home repair work.
Third, there was an additional prejudicial factor in Morris not present here: the highly inflammatory, wholly irrelevant question about the mine owner's prevention of miners from joining a union. As the Court held, the question about the union lacked even a "tenuous basis for claimed admissibility." Id. at 298.
And fourth, the trial judge in Morris indicated he believed at least some of the questions about prior lawsuits were proper. The Court placed significant weight on the trial judge's comments, holding that "[i]t must be noted that the trial judge's rulings respecting the admissibility of evidence of other litigation were susceptible to inducing the jury's belief that the court at first regarded such evidence to be competent." Morris, 465 S.W.2d at 298.
Unlike here, the objections, responses, and the court's rulings in Morris seemingly occurred in the jury's earshot. That is significant because our Supreme Court has emphasized that, as occurred here, "[b]etter practice" is "for any discussion regarding an objection (including the grounds for the objection, any response thereto, and the trial court's ruling) to . . . occur[] at the bench outside the hearing of the jury." Mayo v. Commonwealth, 322 S.W.3d 41, 52 n.13 (Ky. 2010).
In sum, this case lacks the same sort of repeated, inflammatory questions, or dubious comments by the trial court, which led the Court in Morris to conclude the admonition had not cured the errors. Id. at 299. Here, given the significantly more fleeting and less inflammatory questions, we conclude the admonition was sufficient to cure any error. Price v. Commonwealth, 59 S.W.3d 878, 881 (Ky. 2001) (Holding that "it has long been the law in Kentucky that an admonition to the jury to disregard an improper argument cures the error unless it appears the argument was so prejudicial, under the circumstances of the case, that an admonition could not cure it."). Moreover, "[a] jury is presumed to follow an admonition." Jefferson v. Eggemeyer, 516 S.W.3d 325, 338 (Ky. 2017). Our conclusion is reinforced by the fact that the jury awarded Pritchard less in damages than she sought and awarded Decker damages in its crossclaim. The jury's verdict shows that it was not so inflamed against Decker by the fleeting mention of prior litigation that its verdict was the improper result of passion or prejudice.
In sum, Decker has not shown a "fundamental defect in the proceedings which will result in a manifest injustice" such that "the prejudicial effect can be removed in no other way" short of a mistrial. Gould, 929 S.W.2d at 738 (citations omitted). Decker certainly has not shown the existence of a manifest injustice.
No Error in Denying a Mistrial Due to Shelton's Absence
The final issue is Decker's claim that the trial court erred by denying the motion for a mistrial based on Shelton's absence at trial. We disagree.
First, though not discussed extensively by the trial court or Pritchard, Decker's request for a mistrial was belated because it came after voir dire had concluded. Shelton's absence was obvious from the moment the court called the case, so Decker's counsel knew about the defect immediately. Nonetheless, Decker's counsel answered affirmatively when asked by the court if he was ready to proceed. Counsel's announcement that he or she is ready for trial is not a mere ritualistic incantation devoid of meaning or consequence. Chaffins v. Commonwealth, 275 S.W.2d 52, 54 (Ky. 1955) (Holding that a motion for a continuance based on absent witnesses was "too late since appellant would already have announced ready for trial[.]"); Fulton v. Commonwealth, 294 S.W.2d 89, 90 (Ky. 1956) (Holding that "appellants waived their right to a continuance by announcing ready when the case was called."); Worthington v. Commonwealth, By, Through and ex rel. Smith, 304 S.W.2d 926, 927 (Ky. 1957) (a party waived objections regarding the denial of a motion for a continuance by having already announced the party was ready for trial).
We may affirm the trial court on alternate grounds supported by the record. Mark D. Dean, P.S.C. v. Commonwealth Bank & Tr. Co., 434 S.W.3d 489, 496 (Ky. 2014).
The takeaway is that Decker should have moved for a continuance at the beginning of the proceedings instead of announcing he was ready for trial, only to later move for a mistrial on grounds which were apparent when the trial court called the case. The motion for a mistrial was too late.
Next, other than citing to the standards governing mistrials, Decker cites to no authority to support his terse and speculative argument that Shelton's absence necessitated a mistrial. As we have held, "a terse, conclusory assertion wholly unaccompanied by meaningfully developed argument or citation to authority is insufficient to merit appellate relief." Schell, 640 S.W.3d at 32.
Third, and relatedly, Decker has not shown how Shelton's absence caused Decker to suffer any specific prejudice. In its reply brief Decker speculates that Shelton's absence "resulted in an undue prejudice against Decker Services. Joe Decker was left as the sole defendant witness whom the jury could directly observe and assess, a circumstance that undeniably skewed the evidentiary balance against Decker Services." Decker does not explain why this is allegedly so. And Decker cites to no authority holding that a mistrial was required under similar circumstances.
As shown by testimony, Shelton's location was unknown. Moreover, Shelton had been elusive during pretrial proceedings as he did not appear when his deposition was initially scheduled, nor did he otherwise actively participate in the case. Consequently, Shelton's video deposition was played for the jury. See CR 32.01 (governing usage of depositions at trial). Accordingly, contrary to Decker's assertions, the jury had the opportunity to "observe and assess" Shelton's body language and demeanor at length.
Decker argued unsuccessfully at trial that Shelton's deposition should be excluded because it did not satisfy CR 32.01, but Decker has abandoned that argument on appeal.
Only Pritchard's counsel questioned Shelton because, as Pritchard's counsel announced at the beginning of the deposition, Decker's counsel had a conflict and could not attend the deposition. Decker does not argue that its counsel's absence from the deposition requires relief.
Finally, the jury could not have truly somehow been biased against Decker due to Shelton's absence because it returned a verdict which: a) awarded Pritchard less in damages against Decker and Shelton than she sought; and b) awarded Decker $15,000 in damages in its crossclaim against Shelton. In sum, Decker has not shown an entitlement to relief due to Shelton's regrettable absence.
CONCLUSION
For the foregoing reasons, the Warren Circuit Court is affirmed.
ALL CONCUR.