Opinion
NO. 2011-CA-001546-MR
02-22-2013
LOUISVILLE-JEFFERSON COUNTY METRO GOVERNMENT; AND RONALD L. BISHOP, FORMER DIRECTOR OF LOUISVILLE-JEFFERSON COUNTY METRO CORRECTIONS APPELLANTS v. KELVIN BROOKS, SR. AND DONNA MARTIN APPELLEES
BRIEFS FOR APPELLANT: Michael J. O'Connell Jefferson County Attorney David A. Sexton Stephen P. Durham Assistant Jefferson County Attorneys Louisville, Kentucky BRIEF FOR APPELLEE: Thomas E. Clay Craig C. Dilger Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE BARRY WILLETT, JUDGE
ACTION NO. 98-CI-002519
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; COMBS AND DIXON, JUDGES. ACREE, CHIEF JUDGE: The Louisville-Jefferson County Metro Government (Metro) and Ronald L. Bishop appeal that portion of the Jefferson Circuit Court's order of July 15, 2011, awarding the appellees, Kelvin Brooks, Sr. and Donna Martin, post-judgment interest on their successful claims brought under the Kentucky Civil Rights Act (KCRA). We affirm.
I. Background
Brooks and Martin were employed by Metro and worked at the Metropolitan Correctional Services Department, more commonly known as the Jefferson County Jail. Bishop was the director of the jail at all times germane to this appeal.
In 1998, Brooks and Martin filed complaints against Metro and Bishop in his official and individual capacities. They alleged they had been the victims of racial discrimination and retaliation, respectively, in violation of the KCRA. Following trial, a jury returned a judgment in favor of Metro.
Brooks and Martin appealed. The verdict was vacated, and the matter was remanded for a new trial on Brooks' claim of racial discrimination and Martin's claim of retaliation. Martin's claim against Bishop in his individual capacity was reinstated. Brooks v. Jefferson County Fiscal Court, 2003 WL 23005603 (Ky. App. 2005).
After the parties had presented their evidence, but before the matter had been submitted to the jury, the circuit judge conducted a hearing to discuss jury instructions. Brooks and Martin expressed concern that the judge's proposed instructions did not apportion fault between Metro and Bishop. An attorney for the defendants responded that there was no need for such an instruction because Metro intended to indemnify Bishop to the full extent of any judgment against him. Metro made no distinction between judgments against Bishop in his individual capacity and those in his official capacity. The instructions were presented to the jury.
The jury was persuaded that the KCRA had been violated and awarded the appellees as follows: to Brooks, $3,500 for lost wages and $3,500 for humiliation, embarrassment, and mental anguish; and to Martin, $175,000 for lost wages and $650,000 for humiliation, embarrassment, and mental anguish. The appellants were held jointly and severally liable, and the judgment referred to neither post-judgment interest nor attorney fees.
Shortly after judgment was entered, Brooks and Martin filed a motion to amend the order to include an award of costs and attorney fees. The circuit court awarded costs and attorney fees in the amount of $242,901.
Metro and Bishop appealed, and Brooks and Martin cross-appealed. This Court reversed the award of lost wages to Martin, but affirmed in every other respect and "remanded [the case] to the Jefferson Circuit Court for entry of a judgment consistent with this opinion." Brooks v. Martin, 2009 WL 1636270 *17 (Ky. App. 2009).
Following remand, Metro tendered a check to the plaintiffs' attorneys for $949,910.00, an amount they asserted fully satisfied the judgment, including attorneys' fees.
The check was mistakenly written for $50,000 more than the judgment; the circuit court determined the $50,000 overpayment should apply to the outstanding amount owed in post-judgment interest.
Brooks and Martin did not accept the tendered check as full satisfaction of their judgment because, they claimed, they were entitled to post-judgment interest in addition to the amount of the judgment. They requested that the circuit court impose post-judgment interest in accordance with Kentucky Revised Statute (KRS) 360.040. This was the first time the matter had been brought to the circuit court's attention. Metro objected to the award. Over that objection, the circuit court awarded interest at a rate of twelve percent.
This appeal followed. Metro asserts the circuit court's assessment of interest was erroneous for the following reasons: 1) it violates the doctrine of law of the case; and 2) the KCRA does not permit assessment of post-judgment interest against Metro, a governmental entity.
Brooks and Martin counter that Bishop, as an individual defendant, was not immune from assessment of interest. They believe Metro's agreement to wholly indemnify Bishop constituted a waiver of any immunity they may have had with respect to post-judgment interest.
II. Standard of review
Assessment of post-judgment interest accrues according to the mandate of KRS 360.040:
A judgment shall bear twelve percent (12%) interest compounded annually from its date. A judgment may be for the principal and accrued interest; but if rendered for accruing interest on a written obligation, it shall bear interest in accordance with the instrument reporting such accruals, whether higher or lower than twelve percent (12%). Provided, that when a claim for unliquidatedKRS 360.040.
damages is reduced to judgment, such judgment may bear less interest than twelve percent (12%) if the court rendering such judgment, after a hearing on that question, is satisfied that the rate of interest should be less than twelve percent (12%). All interested parties must have due notice of said hearing.
Proper application of this statute is a question of law, as is the issue of governmental immunity. Both are reviewed de novo. See Osborne v. Commonwealth, 185 S.W.3d 645, 648 (Ky. 2006); see also Madison County Fiscal Court v. Kentucky Labor Cabinet, 352 S.W.3d 572, 575 (Ky. 2011).
III. Discussion
a. Law of the case
Metro contends the circuit court was not permitted to assess post-judgment interest following remand from this Court. Rather, the appellant argues, recovery was limited to that which was affirmed on appeal.
"'Law of the case' refers to a handful of related rules giving substance to the general principle that a court addressing later phases of a lawsuit should not reopen questions decided by that court or by a higher court during earlier phases of the litigation." Brown v. Commonwealth, 313 S.W.3d 577, 610 (Ky. 2010) (citing 18B Wright, Miller, and Cooper, Federal Practice and Procedure, § 4478 (2002)).
The doctrine does not apply to preclude assessment of post-judgment interest. "[T]he fact that a judgment or decree is silent as to interest will not prevent the recovery of interest thereon." Commonwealth, Dept. of Highways v. Young, 380 S.W.2d 239, 240 (Ky. 1964). The procedural history of Young is similar to that of this case in all meaningful respects: Young received a judgment before the Board of Claims which was affirmed by the circuit court and then by the predecessor to the Supreme Court. Id. at 239. The matter of post-judgment interest was not raised until after the last affirmation; nevertheless, the plaintiff was permitted to recover interest. Like Young, Brooks and Martin were entitled to seek interest on their judgments following remand, in accordance with KRS 360.040.
b. Governmental immunity
Metro correctly argues that a governmental entity is entitled to immunity in tort, except to the extent specifically waived by statute. Grayson County Bd. of Educ. v. Casey, 157 S.W.3d 201, 203 (Ky. 2005).
The KCRA contains no such waiver of immunity with respect to awards of post-judgment interest. Kentucky Dept. of Corrections v. McCullough, 123 S.W.3d 130, 140 (Ky. 2003) ("interest may not be awarded against the Commonwealth or its agencies in connection with a judgment obtained under the KCRA."). Metro is correct that the KCRA does not permit the assessment of post-judgment interest against a government entity.
Nevertheless, Metro cannot prevail on appeal.
c. Waiver
"'[W]aiver' is a voluntary and intentional surrender or relinquishment of a known right, or an election to forego an advantage which the party, at his option, might have demanded or insisted upon." Weinberg v. Gharai, 338 S.W.3d 307, 314 (Ky. App. 2011) (citing Barker v. Stearns Coal & Lumber Co., 291 Ky. 184, 163 S.W.2d 466, 470 (1942)). Prior to submission of instructions to the jury, Metro's attorney advised the circuit court that Metro intended to indemnify Bishop for any judgment against him, and thereby waived the right to an instruction on apportionment of liability.
This also constituted waiver of Metro's immunity to post-judgment interest in a KCRA claim. Bishop participated in the litigation in his individual capacity in addition to his official capacity.
"Official immunity" is immunity from tort liability afforded to public officers and employees for acts performed in the exercise of their discretionary functions. ... Official immunity can be absolute, as when an officer or employee of the state is sued in his/her representative capacity, in which event his/her actions are included under the umbrella of sovereign immunity ... . Similarly, when an officer or employee of a governmental agency is sued in his/her representative capacity, the officer's or employee's actions are afforded the same immunity, if any, to which the agency, itself, would be entitled, as discussed in Part II of this opinion, supra. But when sued in their individual capacities, public officers and employees enjoy only qualified official immunity, which affords protection from damages liability for good faith judgment calls made in a legally uncertain environment.Yanero v. Davis, 65 S.W.3d 510, 521-22 (Ky. 2001) (citations omitted).
Metro has never argued that Bishop was entitled to immunity in his individual capacity. Indeed, because the jury found Bishop did engage in discriminatory and retaliatory behavior, such an argument would likely be unsuccessful because that behavior could not be characterized as "good faith judgment calls made in a legally uncertain environment." Id.
Rather, Metro argues that the judgment was not against Bishop in his individual capacity at all, but only in his official capacity. We disagree. The judgment proclaims, in relevant part, "Plaintiffs shall have Judgment against the Defendants jointly and severally in the amounts set forth above." At no point does the judgment distinguish between the defendants; there is likewise no distinction made between Bishop's participation as a defendant in his individual capacity or in his official capacity. "A judgment in terms against 'the defendants' without particularly naming them is a valid judgment against all who are regularly defendants in the action." 46 Am.Jur. 2d Judgments §100 (1994) (footnote omitted). In the present case, that includes Bishop in both capacities.
The judgment against Metro and Bishop was joint and severable. They were therefore each "liable for the full amount of the debt." 46 Am.Jur.2d Judgments §110 (1994) (footnote omitted). Because Metro had previously agreed to indemnify Bishop for the entire amount of any judgment against him, Metro is responsible for the entire amount owed by Bishop, including the interest assessed. By agreeing to indemnify an individual who was not immune to post-judgment interest, Metro waived its own immunity. The circuit court properly ordered Metro to pay interest on the judgment.
IV. Conclusions
Although the KCRA does not obligate a governmental entity to pay post-judgment interest on claims brought thereunder, Metro waived the immunity it enjoyed by agreeing to indemnify Bishop, who enjoyed no such immunity. We affirm.
ALL CONCUR. BRIEFS FOR APPELLANT: Michael J. O'Connell
Jefferson County Attorney
David A. Sexton
Stephen P. Durham
Assistant Jefferson County Attorneys
Louisville, Kentucky
BRIEF FOR APPELLEE: Thomas E. Clay
Craig C. Dilger
Louisville, Kentucky