In light of that holding, the best practice for a party making a claim for recovery of attorney’s fees is to include either a separate count for attorney’s fees in the pleading (whether a complaint, counterclaim, cross-claim, or third-party complaint) or a separate paragraph making the claim for fees in the count to which the request for fees is related. In either event, the party should specify the legal grounds for the claim (statutory, contractual, and/or equitable). If a party seeking attorney’s fees has omitted a claim for such fees from its pleading and merely listed a request for fees under the prayer for relief, the party may seek leave to amend the pleading under CR 15. 

The holding in O’Rourke did not specifically state that it is necessary to plead a claim for an equitable award of attorney’s fees based on Kentucky common law, such as Batson v. Clark, 980 S.W.2d 566 (Ky. App. 1998). On the other hand, it appears that the plaintiff in O’Rourke sought an equitable award of fees as an alternative to its claim for fees under Kentucky landlord-tenant statutes. O’Rourke distinguished Batson and held that the trial court does not have discretion to make an equitable award of fees where a controlling statute provides a limited basis for awarding fees (i.e., willful conduct of the opponent) that is not applicable to the facts of the case. The Court then held that the landlord’s failure to plead a claim for fees was an alternative basis to deny recovery of fees, and it did not limit this holding to a request for fees made pursuant to statute or contract. In light of that holding, it appears that even a claim for fees based on equitable principles should be pled with particularity. However, a party might assert that its equitable entitlement to recover attorney’s fees arose after the pleading stage, or even at trial, such that pleading the equitable claim beyond the routine request for fees should not be required. Rather than making such an argument, a party that did not include a specific claim for attorney’s fees in its pleading should consider seeking leave to amend its pleading to include the claim. Of course, equitable awards of attorney’s fees are rarely made by Kentucky trial courts, which generally hold firm to the precept that parties to litigation must bear their own attorney’s fees in the absence of entitlement under a statute or contract (the so-called “American Rule”). 

Finally, the holding in O’Rourke v. Lexington Real Estate Co. does not necessarily indicate that Kentucky is moving toward a stricter or more technical pleading standard than the traditional “fair notice” standard that has been the rule in Kentucky for decades and that the federal courts had long followed until the adoption of the more rigorous Twombly/Iqbal standards by the U.S. Supreme Court in recent years. The Court in O’Rourke specifically noted that it did not believe adequate notice of the claim for attorney’s fees was provided by a request made in the prayer for relief. To date, the only Kentucky case specifically citing Twombly or Iqbal was Espinosa v. Jefferson/Louisville Metro Govt., 2009 WL 277488 (Ky. App. 2009), an unpublished decision of the Court of Appeals that cited Iqbal with approval and relied on it in part in affirming dismissal of a complaint for failure to state a claim. (See CR 76.28(4)(c) concerning citation of unpublished opinions.) 

Note: The foregoing post includes commentary reprinted from the forthcoming 2013 supplement to Rules of Civil Procedure Annotated, 6th ed. (Vols. 6 & 7, Kentucky Practice Series), by David V. Kramer, with permission of the author and publisher. Copyright (c) 2013 Thomson Reuters. For more information about this publication please visit http://store.westlaw.com/rules-of-civil-procedure-annotated-6th-vols-6-7-kentucky/130503/11774808/productdetail. 

David Kramer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.

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In reversing the trial court, the Supreme Court held that principles adopted in a series of criminal cases (starting with Shane v. Com., 243 S.W.3d 336 (Ky. 2007), followed by King v. Com., 276 S.W.3d 270 (Ky. 2009), culminating in Gabbard v. Com., 297 S.W.3d 844 (Ky. 2009)) to determine whether a trial court’s denial of a challenge for cause was erroneous or harmless should apply equally in civil cases. The Court’s analysis as it evolved in those criminal cases has placed an additional procedural burden over and above moving to strike a juror for cause on the moving party in order to preserve the matter for appellate review and to avoid a finding of harmless error. Specifically, one seeking reversal based on the trial court’s denial of a challenge for cause must have used a peremptory challenge on the challenged juror, and then listed on the jury strike sheet an alternate juror on whom the moving party would have used a peremptory challenge if the motion to strike had been granted. If the juror designated in the alternative peremptory challenge by the complaining party ends up sitting on the jury, the trial court’s error will not be deemed harmless.

In Grubb v. Norton, the plaintiff’s lawyers partially followed the procedure set forth in those criminal cases, and named two other jurors on whom they would have used peremptory challenges if they had not had to use one on the parent of the hospital employee and if their for-cause challenge had been granted as to the former patient of the expert (on whom they did not use a peremptory, but who was excused as an alternate before deliberations began). Though the opinion did not say so, one must presume that the juror who was designated as an alternate peremptory challenge for the hospital employee’s parent ended up sitting on the jury. Thus, the Court found that substantial error had occurred, requiring reversal and retrial. However, the decision appears to have been a close call as both the majority opinion and the concurring opinion commented on the limited follow-up questioning the complaining party’s counsel did of the jurors who were challenged for cause.

Had the plaintiff used peremptory challenges on neither of the jurors who were challenged for cause (as opposed to one), or if the juror named in the alternate peremptory challenge for the hospital employee’s father had not ended up sitting on the jury, the error likely would not have been deemed preserved for review or would have been presumed harmless under the line of criminal cases that the Court relied on. Also, the Grubb case does not discuss how the juror who sat on the case but who would have been excused by the next peremptory challenge if the complaining party’s challenge for cause had been sustained actually voted. If that juror voted in favor of the complaining party, one could make a decent argument that the trial court’s error in declining to excuse for cause the challenged juror on whom the complaining party had to use a peremptory challenge was still harmless. (That inquiry would be unnecessary in an appeal by a defendant in a criminal case since a unanimous verdict is required for a criminal conviction.)

Finally, the application of these jury selection principles to civil cases is consistent with a prior unpublished opinion of the Court of Appeals on remand from the Supreme Court in O’Hair v. Wells, 2008 WL 2610164 (Ky. App. 2008), and with commentary in 7 Philipps & Kramer, Kentucky Practice, “Rules of Civil Procedure Annotated,” CR 47.03 Comment 6 at pp. 26-28 (2012 supplement).

Grubb v. Norton Hospitals is not final as of the date of this blog post. Decisions that are not final should not be cited as authority in Kentucky.

David Kramer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.

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The best practice in this regard is for the prevailing party, which is customarily the one to prepare a proposed judgment, circulate it to the other parties, and submit it to the trial court for entry, to make a motion for an award of attorney’s fees with supporting documentation before tendering the proposed final judgment to the trial court. If the motion is not ruled on by the time the proposed judgment is tendered, the prevailing party should leave a blank line in the judgment for the amount of attorney’s fees that the court might award.  If the attorney’s fees are not included in the final judgment, the prevailing party with a claim for recovery of attorney’s fees by statute or contract may make a motion to alter, amend, or vacate the final judgment within 10 days pursuant to Rule 59.05. If no steps are taken within 30 days after entry of the final judgment that does not include an award of recoverable attorney’s fees, the trial court loses jurisdiction to award fees. Id.  

Note: The foregoing post includes commentary reprinted from the forthcoming 2013 supplement to Rules of Civil Procedure Annotated, 6th ed. (Vols. 6 & 7, Kentucky Practice Series), by David V. Kramer, with permission of the author and publisher. Copyright (c) 2013 Thomson Reuters. For more information about this publication please visit http://store.westlaw.com/rules-of-civil-procedure-annotated-6th-vols-6-7-kentucky/130503/11774808/productdetail. 

David Kramer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.

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The issue of the right to file separate briefs involves some ambiguity under the rules, however, in the case in which two parties file separate notices of appeal from the same judgment (thereby initiating two separate appeals), yet do not wish to combine their briefing as one appellant. No civil rule expressly addresses this situation. In practice, such parties are typically afforded the right to file separate briefs. 

The Kentucky Court of Appeals Basic Appellate Practice Handbook provides some insight on this issue. It states: “It is important to remember that only one appellant brief may be filed in each appeal.  If appellants or groups of appellants have separate interests that will make it desirable to file separate briefs, separate notices of appeal must be filed.”  Basic Appellate Practice Handbook, supra, Comment 7, at 14.  This statement confirms that the filing of separate notices of appeal normally entitles those who were co-parties in the trial court to file separate appellate briefs. The prosecution of separate appeals is normally not economical if the appeals concern the same parties and the same judgment, and it could also create inconsistent results. For those reasons, the Court of Appeals routinely orders that separate appeals from the same judgment be consolidated for oral argument (if held) and decision by the same appellate panel, while affording the separate appellants the right to file separate briefs.  

With respect to the procedure for consolidating contemporaneous appeals, CR 75.11 (“Several Appeals”) mandates that a single record on appeal be prepared in the event that more than one appeal is taken from the same judgment. This, of course, paves the way for an economical consolidation of the appeals. 

CR 76.03 requires the appellant to file a prehearing statement within 20 days of filing the notice of appeal. The prehearing statement provides a set of background information to the Court about the case and appeal.  That information includes, inter alia, whether the matter has been before the Court of Appeals on a previous occasion and whether other appeals arising from the same case or controversy are pending before the appellate courts. The primary purposes of the prehearing statement are to provide the Court of Appeals with a case background and to allow the Court to determine whether a prehearing conference should be held.  The prehearing conference, if held, provides the parties and Court an opportunity to agree on a number of ground rules for the appeal, including simplification of issues, the content of the record, the time for filing briefs, and other matters to aid in the disposition of the appeal. See CR 76.03(10).  Since the prehearing statement will have provided information on contemporaneous appeals, this is an ideal time for the Court to consolidate any such appeals, if practicable, and for the Court and parties to address related matters such as the issue of separate briefs by multiple parties. 

In the event the Court of Appeals consolidates separate appeals but the appellants do not join, the Rules likewise do not expressly provide whether the appellee(s) may file a separate brief for each appellant’s brief, whether the appellee(s) may file only one brief, or whether the appellee(s) may file a combined brief with an enlarged page limit. However, fairness and a reasonable interpretation of the rules indicates that the appellees should be provided the opportunity to respond to each appellant’s brief separately, if desired. By analogy, CR 76.20(5) governing responses to motions for discretionary review provides that a response may be filed by each respondent. Questions as to such matters should ideally be resolved by agreement of the parties confirmed by an agreed order or by the Court following a prehearing conference if one is held.   

Where the Court consolidates for oral argument and/or decision separate appeals of separate judgments by different parties on the basis that the issues raised in the separate appeals are identical or overlapping, the separate appellants are given the right to file separate briefs, and the appellees have the right to file one responsive brief for each appellant’s brief filed. 

Note: The foregoing post includes commentary reprinted from the forthcoming 2013 supplement to Rules of Civil Procedure Annotated, 6th ed. (Vols. 6 & 7, Kentucky Practice Series), by David V. Kramer, with permission of the author and publisher. Copyright (c) 2013 Thomson Reuters. For more information about this publication please visit http://store.westlaw.com/rules-of-civil-procedure-annotated-6th-vols-6-7-kentucky/130503/11774808/productdetail.

David Kramer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.

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  Note: The foregoing post includes commentary reprinted from the forthcoming 2013 supplement to Rules of Civil Procedure Annotated, 6th ed. (Vols. 6 & 7, Kentucky Practice Series), by David V. Kramer, with permission of the author and publisher. Copyright (c) 2013 Thomson Reuters. For more information about this publication please visit http://store.westlaw.com/rules-of-civil-procedure-annotated-6th-vols-6-7-kentucky/130503/11774808/productd  

David Kramer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.

Subscribe to the DBL Civil Litigation blog.

In essence, the rule bars repetitious suits involving the same cause of action. Plaintiffs must therefore bring all such related claims that have already accrued in the same pleading or lose them. For example, in a personal injury action arising from a motor vehicle collision, litigants must bring their claims for both bodily injury and property damage in the same action. 

An instructive case on the rule against splitting causes of action is Coomer v. CSX Transportation, Inc., 319 S.W.3d 366, 371 (Ky. 2010).  The plaintiff filed suit in Jefferson Circuit Court to recover for chronic wrist injuries that he claimed arose from his twenty-year employment in labor positions at CSX.  Nearly two years later he brought a subsequent suit in Perry Circuit Court against CSX for additional injuries, which he also claimed arose from his years as a laborer for the company.

The Supreme Court in Coomer stated that the rule against splitting causes of action “applies not only to the points upon which the court was required by the parties to form an opinion and pronounce judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.” In this sense, the rule has broader application than res judicata.  

On the other hand, the equitable nature of the rule subjects its general application to several exceptions.  For example:  (1) the rule does not necessarily bar a later suit on matters that were not relevant, or at least implicitly connected, to the issues of the original action; and (2) the rule does not apply to a cause of action before it accrues.  

The Coomer Court ultimately addressed the novel issue of how the rule operates when a new claim, arising out of the same nucleus of facts, accrues during the pendency of the original civil action. In so doing the Court applied the principles of equity and extended the exception to the rule for causes of actions not yet accrued to include causes of action that accrue during the litigation. Thus, where a cause of action arising out of the same nucleus of facts as a cause of action in an existing suit accrues during the pendency of that litigation, the claimant has a procedural choice. The claimant may either bring a separate civil action or amend the complaint in the existing action (or supplement the complaint, if the facts giving rise to the newly accrued cause of action occurred after the time the original complaint was filed). 

For the careful practitioner, however, seeking to rely on exceptions to the rule against splitting causes of action can be a risky and costly endeavor.  The preferable course of action is to investigate fully one’s case before filing suit and plead related claims in the same cause of action, where possible. If circumstances give rise to a new cause of action of the same or similar type arising out of the same basic set of operative facts against the same defendant during the pendency of the original litigation, the plaintiff, for reasons of judicial economy and to avoid the risk of splitting causes of action, should strongly consider amending or supplementing the complaint to add the new claim. 

Note: The foregoing post includes commentary reprinted from the forthcoming 2013 supplement to Rules of Civil Procedure Annotated, 6th ed. (Vols. 6 & 7, Kentucky Practice Series), by David V. Kramer, with permission of the author and publisher. Copyright (c) 2013 Thomson Reuters. For more information about this publication please visit http://store.westlaw.com/rules-of-civil-procedure-annotated-6th-vols-6-7-kentucky/130503/11774808/productdetail.

David Kramer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.

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The Court held that a lawyer’s unnotarized signature that constitutes certification under Rule 11 is not equivalent to verification. Verification is defined by Black’s Law Dictionary as “a formal declaration made in the presence of an authorized officer, such as a notary public, by which one swears to the truth of statements in the document.” Consequently, “[w]hile the signature upon verification may suffice as a certification, the reverse is not true.” Since the statute governing judicial review by the circuit court of an Unemployment Commission decision required filing and verification within 20 days of the Commission’s decision, the lack of verification was a jurisdictional defect and fatal to the claim. The Court also held that the lawyer’s certification did not amount to substantial compliance with the verification requirement.   

Needless to say, lawyers (and self-represented litigants) should take care to see that legal documents requiring verification are properly executed. 

Note: The foregoing post includes commentary reprinted from the forthcoming 2013 supplement to Rules of Civil Procedure Annotated, 6th ed. (Vols. 6 & 7, Kentucky Practice Series), by David V. Kramer, with permission of the author and publisher. Copyright (c) 2013 Thomson Reuters. For more information about this publication please visit http://store.westlaw.com/rules-of-civil-procedure-annotated-6th-vols-6-7-kentucky/130503/11774808/productdetail.

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David Kramer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.

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Amendments to CR 45.01(1) and (2) clarify that subpoenas may now be issued solely for document production without deposition testimony from the person who is producing documents and without obtaining a court order permitting production without testimony. The prior Rules were ambiguous on that point. The amendments also deleted the last sentence of CR 45.01(1) regarding service of subpoenas, since it overlapped with CR 45.03(3). 

In addition, an amendment to CR 45.03(3) will now require that prior notice of the forthcoming issuance of a subpoena for deposition testimony and/or document production, but not for attendance at trial, must be served on every other party and each person whose information is being requested.  The Rule does not specify any particular amount of time that must elapse between the notice of service and service itself. The prior Rule merely required service of the subpoena on other parties and on the person whose information is being requested in the manner prescribed by CR 5.02, but did not require such service in advance of service of the subpoena. 

An amendment to CR 52.01 clarified that a court is to render findings of fact and conclusions of law in granting or denying a permanent injunction. The Rule previously mentioned only rulings on requests for temporary injunctions as necessitating issuance of findings of fact and conclusions of law. 

Finally, the Court deleted (i.e., abolished) CR 84 and the Appendix of Forms that was attached to the Civil Rules. The deletion of the Appendix to the Civil Rules did not affect the list of official forms published by the Kentucky
Administrative Office of the Courts, which is available at this link: http://courts.ky.gov/resources/legalforms/Pages/legalformlibrary.aspx.   

NOTE: The foregoing post includes commentary reprinted from the forthcoming 2013 supplement to Rules of Civil Procedure Annotated, 6th ed. (Vols. 6 & 7, Kentucky Practice Series), by David V. Kramer and Todd V. McMurtry, with permission of the authors and publisher. Copyright (c) 2013 (pending) Thomson Reuters. For more information about this publication please visit http://store.westlaw.com/rules-of-civil-procedure-annotated-6th-vols-6-7-kentucky/130503/11774808/productdetail.

David Kramer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.

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The Supreme Court, in an opinion by Justice Noble, noted that the documents at issue might very well be privileged, but stated that for purposes of the record in an extraordinary writ case in which the petitioner seeks to preclude compelled production based on a claim of privilege, the petitioner should take one of three steps to establish the privileged nature of the documents if such is in dispute: (1) submit the documents for in camera review by the trial court, with the trial court providing a description of the documents or factual bases for the privilege; (2) furnish the trial court and the opposing party a privilege log with information about the documents sufficient to establish their privileged nature; or (3) provide a description of the documents in an offer of proof in the manner provided for in KRE 105(b). Provided the documents relate to confidential communications made by the client or employees of the client in the course and scope of their employment in order to obtain or further the rendition of legal services, the trial court should not order them produced, and a writ will lie to preclude the trial court from erroneously compelling their production. 

The Court noted that in some cases the existence of a privilege may be evident from the record without one of the three methods outlined in the opinion, as was the case in St. Luke Hospitals v. Kopowski. 

Unlike the federal civil rules, which require preparation of a privilege log (see FRCP 26(b)(5)(A)(ii)), the Kentucky civil rules do expressly not mention the process. However, the following statement from 7 Philipps & Kramer, Kentucky Practice, “Rules of Civil Procedure Annotated,” CR 26.02, Comment 7 at p. 616 (5th ed. 2005), addresses privilege logs: “Some trial courts in Kentucky have begun to require production or exchange of privilege logs as a means to require parties to establish a basis for a claim of privilege and to narrow discovery disputes about potentially privileged documents. Where the nature of the discovery request itself appears on its face to seek privileged documents, however, production of a privilege log may be unnecessary.” 

The Collins v. Braden decision was designated for publication and became final on November 15, 2012.  It will be published soon in the South Western Reporter and may be cited as authority.

David Kramer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.

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