Opinion
NO. 2014-CA-001857-MR NO. 2014-CA-001908-MR
06-09-2017
DONNA J. BROUN, AS EXECUTOR OF THE ESTATE OF MARY ELLEN HAMILTON, DECEASED APPELLANT/CROSS-APPELLEE v. WOODLAND OAKS MANOR, LLC APPELLEE/CROSS-APPELLANT
BRIEF FOR APPELLANT/CROSS- APPELLEE: Jeffrey D. Hensley Flatwood, Kentucky BRIEF FOR APPELLEE/CROSS- APPELLANT: David A. Trevey Robert R. May Lexington, Kentucky
NOT TO BE PUBLISHED APPEALS FROM BOYD CIRCUIT COURT
HONORABLE C. DAVID HAGERMAN, JUDGE
ACTION NO. 09-CI-00262 OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, DIXON, AND THOMPSON, JUDGES. CLAYTON, JUDGE: A trial concerning alleged nursing home negligence was held in July of 2014. The jury returned a defense verdict for Woodland Oaks Manor, LLC, and a judgment dismissing the complaint with prejudice was subsequently entered. Appellant/Cross-Appellee appealed, filing its brief with this Court on March 13, 2015. Appellee/Cross-Appellant then moved this Court to hold the appeal in abeyance pending the outcome of Overstreet v. Kindred Nursing Centers Limited Partnership, et al., No. 2013-SC-000620-DG, a case with issues nearly identical to issues raised by Appellant/Cross-Appellee. Appellant/Cross-Appellee filed no response, and the motion was granted.
After the Kentucky Supreme Court's opinion in Overstreet became final on February 18, 2016, Appellee/Cross-Appellant moved to return the case to the active docket. Appellant/Cross-Appellee filed no response. We granted the motion. Appellee/Cross-Appellant then filed its brief on September 14, 2016, which both responded to Appellant/Cross-Appellee's three issues and also raised two original issues, including an affirmative defense of a statute of limitations violation that, if correct, would have also resulted in a judgment being entered dismissing the case with prejudice. Appellant/Cross-Appellee filed no responsive brief.
Given that Appellant/Cross-Appellee failed to file any responsive brief, we could impose sanctions pursuant to Kentucky Rules of Civil Procedure (CR) 76.12(8)(c). Our decision to impose sanctions pursuant to the Rule "is a matter committed to our discretion." Roberts v. Bucci, 218 S.W.3d 395, 396 (Ky. App. 2007). Though that Rule refers to an appellee's brief, not an appellant/cross-appellee's brief, we note that the Rule has been held applicable in other circumstances where a party fails to file a responsive brief. Louisville and Jefferson County Human Relations Com'n ex rel. Duke v. Mr. Maid, Inc., 828 S.W.2d 679 (Ky. App. 1992) (special appeal); Skaggs v. Skaggs, 2008 WL 4683021 (Ky. App. Oct. 24, 2008) (unreported) (cross-appeal); Velten v. Welch, 2008 WL 275153 (Ky. App. Jan. 25, 2008) (unreported) (cross-appeal); Doughty v. Doughty, 2005 WL 3001919 (Ky. App. Nov. 10, 2005) (unreported) (cross-appeal).
While we could regard Appellant/Cross-Appellee's complete failure to file any response to Appellee/Cross-Appellant's motions or brief as a confession of error, CR 76.12(8)(c)(iii), because of the seriousness of the allegations in the Complaint, we decline to impose sanctions at this juncture. Instead, we have reviewed the Appellant/Cross-Appellee's issues and find them meritless.
The first issue asks whether the trial court erred by dismissing Count 1, the Kentucky Resident's Rights Act (KRS 216.515) claims, because the nursing home resident passed away before the action was instituted. The trial court did not err. Overstreet v. Kindred Nursing Centers Limited Partnership, 479 S.W.3d 69 (Ky. 2015), which was rendered after the trial court's dismissal order, controls. In that case, the Kentucky Supreme Court held that, generally, KRS 216.515 actions "do not survive the resident's death." Id. at 71. Having reviewed the Complaint herein and the holding in Overstreet, we agree with the trial court that the KRS 216.515 rights pled in this action should have been dismissed.
The second issue raised by the Appellant/Cross-Appellee is that the trial court allegedly erred by not including the KRS 216.515 statutory duties in the jury instructions. We disagree. First, those claims were properly dismissed, thus jury instructions regarding them were not warranted. Second, Kentucky adheres to a "bare bones" jury instruction principle, where the jury is only presented with the question it needs to determine, and the attorneys are expected to flesh out the law during closing arguments. Olfice, Inc. v. Wilkey, 173 S.W.3d 226, 228-29 (Ky. 2005) (collecting cases). The jury instructions in the instant case adhere to this principle. The trial court did not err.
The final issue raised by the Appellant/Cross-Appellee is that the trial court erred by not directing a verdict and/or by overruling the motion for a judgment notwithstanding the verdict in regard to a pressure ulcer on the decedent's buttocks. We have reviewed this issue under the familiar appellate review standards for directed verdict motions:
The Court must only determine whether the trial court erred in failing to grant the motion for directed verdict. In doing so, "[a]ll evidence which favors the prevailing party must be taken as true[;] and the reviewing court is not at liberty to determine credibility or the weight which should be given to the evidence." This Court, when reviewing a ruling on a motion for directed verdict, "must ascribe to the evidence all reasonable inferences and deductions which support the claim of the prevailing party." Finally, "the appellate court must determine whether the verdict rendered is palpable or flagrantly against the evidence so as to indicate that it was reached as the result of passion or prejudice."Osborne v. Keeney, 399 S.W.3d 1, 8-9 (Ky. 2012) (footnotes and citations omitted, alterations in original). We find no error. Woodland Oaks presented evidence to disprove at least one of the elements in a negligence action, namely the breach of duty element. Keaton v. G.C. Williams Funeral Home, Inc., 436 S.W.3d 538, 542 (Ky. App. 2013) (citing Mullins v. Commonwealth Life Ins. Co., 839 S.W.2d 245, 247 (Ky. 1992)). "The absence of any one of the three elements is fatal to the claim." M&T Chemicals, Inc. v. Westrick, 525 S.W.2d 740, 741 (Ky. 1974). Viewing the evidence presented by Woodland Oak as true, the trial court properly denied the directed verdict motion and overruled the motion for a judgment notwithstanding the verdict because at least one of the negligence elements was disproven.
Having found no error, we affirm the judgment dismissing the case with prejudice in favor of Appellee/Cross-Appellant. We decline to review Appellee/Cross-Appellant's issues, as the first cross-appeal issue asks us to reverse and remand for entry of a judgment dismissing the case with prejudice in favor of Appellee/Cross-Appellant, and our opinion here affirms the same remedy. Furthermore, the second issue pertains only to a retrial, which is not being granted here.
Thus, for the foregoing reasons, we affirm the judgment entered by the trial court.
ALL CONCUR. BRIEF FOR APPELLANT/CROSS-
APPELLEE: Jeffrey D. Hensley
Flatwood, Kentucky BRIEF FOR APPELLEE/CROSS-
APPELLANT: David A. Trevey
Robert R. May
Lexington, Kentucky