Opinion
NO. 2012-CA-002007-MR
12-05-2014
MARKITA JONES APPELLANT v. JOEL TOPF, INDIVIDUALLY; AND D/B/A TOPF CERAMIC TILE AND ELECTRIC; AND WILLIE HILL APPELLEES
BRIEF FOR APPELLANT: Philip C. Kimball Louisville, Kentucky BRIEF FOR APPELLEES: J. Dale Golden Melissa Thompson Richardson Shaye Page Johnson Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES M. SHAKE, JUDGE
ACTION NO. 09-CI-003699
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; JONES AND KRAMER, JUDGES. ACREE, CHIEF JUDGE: Markita Jones obtained a default judgment against Willie Hill for defective workmanship on property she owned; she was not successful in her attempt to hold Appellee Joel Topf liable as Hill's principal. She appeals from the Jefferson Circuit Court's October 24, 2012 Judgment entered after a jury found no apparent-agency liability attributable to Topf. Two issues are before this Court: first, whether the circuit court published improper jury instructions that failed to adequately state the law; and second, whether the circuit court needlessly threatened to levy sanctions against Jones and arbitrarily "shut down" her presentation of her case, thereby depriving Jones of a fair trial. We find no error and affirm.
Judge Joy A. Kramer, formerly Judge Joy A. Moore
I. Facts and Procedure
In 2008, Jones purchased a six-unit apartment building in Louisville, Kentucky. The building was in a state of disrepair. Jones intended to refurbish the building and lease the apartments. In the spring of 2008, Jones encountered Willie Hill at a local restaurant. Hill indicated to Jones that he was an electrician, and Jones expressed interest in hiring him to redo the apartment complex's electrical system. On May 28, 2008, Jones and Hill entered into a contract whereby Hill agreed to perform the electrical work for the building. Jones advanced Hill a portion of the contract price.
Before any electrical work could be undertaken, it was necessary to first "pull" (i.e., secure from governmental authorities) a permit to perform such work. According to Hill's trial testimony, he informed Jones, prior to entering into the contract, that he was a licensed electrician, not an electrical contractor, and that only a licensed electrical contractor could "pull" an electrical permit. Jones disputes this testimony. In any event, after contracting with Hill, Jones unsuccessfully attempted to pull the mandatory electrical permit using her contractor's license. Hill then solicited other electrical contractors to pull the permit. When those efforts failed, Hill contacted Topf, who agreed to pull the permit. Prior to securing the permit, Topf visited the apartment building, at which time he was introduced to Jones as Hill's "friend." This was Jones's first time meeting Topf.
Topf secured the electrical permit on July 14, 2008, and Hill went to work. However, Jones was not pleased with the speed or quality of Hill's work. Jones eventually fired Hill. Unable to find another electrician to work under the permit, Topf withdrew it.
There was some testimony that Hill started the electrical work before Topf pulled the electrical permit.
On April 14, 2009, Jones sued Hill and Topf asserting breach of contract, quantum merit, fraud, and defamation. Jones sought to hold Topf liable for Hill's breach of contract under a respondeat superior/apparent-agency theory. Jones ultimately secured a default judgment against Hill. Jones's respondeat superior/apparent-agency claim against Topf proceeded to trial.
Jones's defamation claim was dismissed pretrial.
Apparent agency is also often referred to as apparent authority and ostensible agency. See David Leibson, 13 Kentucky Practice: Tort Law § 11.4 (2008).
The circuit court issued a pretrial ruling requiring the parties to submit expert witness disclosures, and exhibit and witness lists by a specified date. Jones failed to comply. At Topf's request, the circuit court entered an order excluding from trial all witnesses and exhibits not properly disclosed.
The trial began on October 2, 2012, and lasted three days. Jones testified that, based upon Topf's actions, she believed Hill was acting as Topf's agent. Jones explained that Topf visited the apartment complex on at least four occasions. During one visit, Topf supposedly listened to Jones's complaints about Hill's performance and expressed surprise regarding the building's lack of electricity. During another visit, Jones testified Topf apologized for Hill's delinquency and instructed Hill as to the proper steps to complete the electrical work. Jones claimed Topf gave her the impression that he was in charge of Hill. Notwithstanding the fact that Jones introduced Topf to Hill as her friend, Jones testified that Hill claimed Topf was his "partner."
In contrast, Topf testified he never employed Hill, Hill had no authority to act on Topf's behalf, and he agreed to pull the permit as a "favor" to Hill. Hill corroborated Topf's testimony. Furthermore, Jones conceded Topf was not mentioned or referenced during any precontract discussions between Jones and Hill; Hill did not mention Topf at the time the contract was signed; Topf is not a party to the May 28, 2008 contract, and is not referenced in the contract; Topf performed no work on the property under the contract; and Jones paid no sums to Topf. Likewise, Jones concedes in her brief to this Court that no witness testified that Jones and Topf, or Hill and Topf, "had any contact whatsoever with each other related in any manner to the project before Hill and Jones entered into their contract." (Appellant's Brief at 13-14).
Furthermore, Arnold Hornback, the Louisville Metro Electrical Inspector, testified that pulling an electrical permit alerts the city that work will be done. The permit serves, according to Hornback, as "an agreement between the inspecting agency and the electrical contractor that any work done should be done according to current national code." Hornback explained that the permit itself is not a commitment or indication that the electrical contractor who pulls it will actually do any of the electrical work.
The jury returned a verdict in favor of Topf. On October 24, 2012, the circuit court entered an order consistent with the jury's verdict. Jones promptly appealed. Additional facts will be discussed as needed.
II. Standard of Review
Claimed errors regarding jury instructions are questions of law. We review such errors de novo. Harstad v. Whiteman, 338 S.W.3d 804, 817 (Ky. App. 2011). However, a circuit court's evidentiary rulings are reviewed under the abuse of discretion standard. Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 725 (Ky. 2009). "An abuse of discretion occurs when a 'trial judge's decision [is] arbitrary, unreasonable, unfair, or unsupported by sound legal principles.'" Baptist Healthcare Systems, Inc. v. Miller, 177 S.W.3d 676, 684 (Ky. 2005) (citation omitted).
III. Analysis
A. Jury Instructions
Jones first argues that the circuit court published jury instructions that utterly failed to correctly state the law. Jones claims the instructions to the jury were prejudicially erroneous to her because it was impossible for her to prevail under the instructions. We are not persuaded.
"[B]are bones" jury instructions are the norm - and are perfectly proper - in Kentucky. Cox v. Cooper, 510 S.W.2d 530, 535 (Ky. 1974). The instructions serve "to furnish guidance to the jury in their deliberations and to aid them in arriving at a correct verdict." Ballback's Adm'r v. Boland-Maloney Lumber Co., 306 Ky. 647, 208 S.W.2d 940, 943 (1948). Jury instructions survive scrutiny if they are "based upon the evidence and they . . . properly and intelligibly state the law." Howard v. Commonwealth, 618 S.W.2d 177, 178 (Ky. 1981).
In this case, Jones takes issue with the circuit court's apparent-agency instruction. The circuit court instructed the jury as follows:
INSTRUCTION NO. 3
Apparent agency
You will find for Plaintiff Markita Jones against Defendant Joel Topf if you are satisfied from the evidence as follows:
1. Willie Hill represented to Plaintiff Markita Jones that he could perform the work outlined in his proposed contract;
2. That in entering into that contract, Plaintiff Markita Jones relied on the representations of Willie Hill that he could do the work;(R. at 1062).
3. That Willie Hill did not do the work outlined in the contract and that Willie Hill's failure to do the work was not due to any actions or inactions of Plaintiff Markita Jones to intentionally or inadvertently interfere with, prevent, or frustrate the completion of the work by Willie Hill;
4. That solely as a result of Willie Hill's failure to complete the work contemplated by the contract, Plaintiff Markita Jones was damaged because she could not begin renting her apartments on August 1, 2008;
AND
5. That when Plaintiff Markita Jones entered the contract with Willie Hill, Defendant Joel Topf had expressly authorized Willie Hill to enter into a contract with Plaintiff Markita Jones as his agent;
OR
6. Through the actions and conduct of Defendant Joel Topf on or before the date Plaintiff Markita Jones signed the contract, it reasonably appeared to Plaintiff Markita Jones that Willie Hill had such authority from Defendant Joel Topf and that in signing the contract with Willie Hill, Plaintiff Markita Jones relied on such apparent authority, believed she was dealing with Willie Hill as Defendant Joel Topf's agent, and otherwise would not have entered the contract with Willie Hill if she had known that he was not acting as Defendant Joel Topf's agent.
Apparent authority "is not actual authority." Mt. Holly Nursing Center v. Crowdus, 281 S.W.3d 809, 813 (Ky. App. 2008) (citation omitted). It "is the authority the agent is held out by the principal as possessing. It is a matter of appearances on which third parties come to rely." Id. Under the doctrine of apparent agency, liability can attach even absent an express agency relationship.
In Paintsville Hospital Company v. Rose, 683 S.W.2d 255 (Ky. 1985), the Kentucky Supreme Court recognized, and adopted, the Restatement's definition of apparent (ostensible) agency. Id. at 257. Under the Restatement:
One who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the skill or care of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such.Id. (quoting Restatement (Second) of the Law of Agency, § 267 (1958)). To prevail under this definition, the party asserting an apparent-agency claim must prove that: the principal represented that the putative agent had the authority to perform a particular act on his behalf, and that the third party justifiably relied on the principal's representations.
Jones agrees, in substantial part, with paragraphs 1 - 4 of the jury instructions. Jones's primary complaint lies with paragraphs 5 and 6. Jones argues the circuit court erred when, in these paragraphs, it instructed the jury to focus on Topf's precontract behavior in determining whether Topf made representations, upon which Jones justifiably relied, that Hill had the authority to act on Topf's behalf. Jones argues that the law places no requirement upon the party asserting an apparent-agency theory to prove the existence of the relationship at any specific time. Instead, Jones maintains all that is required is that the harmed party justifiably rely upon the appearance that the one causing the harm is the apparent or ostensible agent of the alleged principle at some point during the period in which the party is harmed. We disagree.
Here, Jones sought to hold Topf, a non-party to the contract, liable for Hill's breach of contract based on the theory of apparent agency. Accordingly, whether Topf can be held liable under an apparent-agency theory depends upon whether Topf's actions at the time Hill and Jones entered into the contract reasonably induced Jones to believe Hill was acting as Topf's agent. See Roethke v. Sanger, 68 S.W.3d 352, 364 (Ky. 2001) ("Since [the plaintiffs] admitted that, when they hired [the putative agent] to do the Gamble Brothers job, they did not do so in reliance on his relationship with [the putative principal], the doctrine of ostensible agency has no application to this case."). Jones cannot make this showing. She readily admitted she had no contact with Topf prior to signing the contract. Hill and Topf both testified likewise. Further, we reject Jones's position that Topf may be held liable for Hill's breach of contract as long as the apparent-agency relationship formed at any point during Hill's performance under the contract. We particularly do so in this case because there was no evidence that Topf directly informed Jones, or by his conduct led Jones to reasonably believe, that he had assumed responsibility for the contract's performance.
In sum, we find the instructions submitted to the jury accurately reflect the current state of the law. On this issue, we find no error.
B. Fair Trial
Jones also claims the circuit court's insistence that the trial end on October 4, 2012, the third day of trial, and its "threatening" of Jones with sanctions, taken together, "were prejudicially erroneous" to her. Jones claims, because of the circuit court's prejudicial conduct, she is entitled to a new trial pursuant to Kentucky Rules of Civil Procedure (CR) 59.01. That rule states, in pertinent part, that: "[a] new trial may be granted to all or any of the parties and on all or part of the issues for any of the following causes: (a) Irregularity in the proceedings of the court . . . by which the party was prevented from having a fair trial."
Before turning to our analysis, we will briefly state the relevant facts. The circuit court set aside three days for the trial. On the first day of trial, the parties confirmed that the trial would take, at most, three days, ending at the very latest on October 4, 2012. Relying on counsels' representations, the circuit court excused some jurors on the panel from attendance on October 5, 2012. Unbeknownst to all involved, the trial was destined to be plagued by numerous objections and delays.
Because Jones failed to submit an exhibit list, the circuit court excluded certain evidence from trial. Despite the circuit court's pretrial ruling, Jones repeatedly directed her questions into areas and concerning exhibits previously excluded by the circuit court. Because of Jones's actions, Topf lodged numerous objections and frequent bench conferences ensued. This merry-go- round of events resulted in the trial lasting appreciably longer than originally projected. Toward the end of the third day, during counsel's redirect examination of Jones, the circuit court warned Jones that if she continued to ignore its rulings and venture into previously excluded areas, resulting in the trial speeding into its fourth day and, in turn, a possible mistrial by necessity, the circuit court would assess court costs against Jones to retry the case. At this point, Jones declared her case complete.
If the trial did not end on October 4, 2012, a mistrial by necessity would occur because there would not have been enough jurors to render a verdict. See Cardine v. Commonwealth, 283 S.W.3d 641, 648 (Ky. 2009) ("A manifest necessity [for a mistrial] is an 'urgent or real necessity' that is 'determined on a case by case basis.'" (Citation omitted)).
Jones argues the circuit court's arbitrary and unjustified insistence that the trial end on the third day coupled with its threat of sanctions deprived her of the opportunity to fully present her case to the jury, resulting in substantial prejudice and depriving her of a fair trial. In Kentucky, "the trial court has inherent authority to control the trial proceedings[.]" Mullikan v. Commonwealth, 341 S.W.3d 99, 104 (Ky. 2011). This includes "the power to control the course of litigation, including control of the amount of evidence produced on a particular point." Washington v. Goodman, 830 S.W.2d 398, 400 (Ky. App. 1992); Commonwealth v. Maddox, 955 S.W.2d 718, 721 (Ky. 1997) ("The presentation of evidence . . . rests in the sound discretion of the trial judge." (Citation omitted)).
In the case before us, the circuit court properly exercised its inherent discretion and authority to control the shape of the proceedings. As noted by the circuit court, Jones repeatedly - whether intentionally or inadvertently - sought to circumvent and disregard the circuit court's rulings. Jones's own conduct resulted in many of the delays. In light of this, it was certainly within the circuit court's authority to require Jones to complete her case within the time allotted. Furthermore, at no point did the circuit court prevent Jones from fully questioning her witnesses. The circuit court did not order Jones's counsel to cease his redirect examination of Jones. Instead, the circuit court warned Jones she would be sanctioned if Jones needlessly prolonged the case, possibly resulting in a mistrial, by continuing to disregard the court's prior directives and evidentiary rulings. The circuit court's warning was fully justified.
We have carefully reviewed the record and perceive no irregularities in the proceedings of the court which deprived Jones of a fair trial. Jones has presented no grounds sufficient to warrant a new trial under CR 59.01.
IV. Conclusion
We affirm the October 24, 2012 Judgment of the Jefferson Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Philip C. Kimball
Louisville, Kentucky
BRIEF FOR APPELLEES: J. Dale Golden
Melissa Thompson Richardson
Shaye Page Johnson
Lexington, Kentucky