Opinion
NO. 2010-CA-000218-MR
07-20-2012
KENNETH H. JONES APPELLANT v. CHERA LYNN WARREN APPELLEE
BRIEFS FOR APPELLANT: Kenneth R. Jones, Pro Se LaGrange, Kentucky BRIEF FOR APPELLEE: David L. Hargrove Mayfield, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM CARLISLE CIRCUIT COURT
HONORABLE TIMOTHY A. LANGFORD, JUDGE
ACTION NO. 08-CI-00014
OPINION
REVERSING AND REMANDING
BEFORE: LAMBERT, TAYLOR AND THOMPSON, JUDGES. TAYLOR, JUDGE: Kenneth H. Jones brings this appeal from a December 17, 2009, judgment of the Carlisle Circuit Court finding Jones liable in a wrongful death action and awarding damages of $1,191,322. We reverse and remand.
In Criminal Action No. 08-CR-00009, Jones was tried by a jury for the murder of Perry Dwain Warren and ultimately found guilty but mentally ill. The evidence at the criminal trial established that Jones shot Warren five times while Warren was standing in his own driveway. Warren died at the scene from multiple gunshot wounds.
Warren's surviving widow, Chera Lynn Warren, was appointed the personal representative of Warren's estate. Chera, in her capacity as personal representative of the estate and individually, filed the underlying wrongful death action against Jones. Based upon Jones's criminal conviction for the murder of Warren, Chera filed a motion for partial summary judgment upon the sole issue of Jones's liability. By partial summary judgment entered June 18, 2009, the circuit court granted the motion and held that Jones was "solely liable" for the death of Warren. Thereafter, the issue of damages was presented to the court for adjudication. Kentucky Rules of Civil Procedure (CR) 52.04. The circuit court conducted a bench trial on December 1, 2009, and awarded Chera and the Estate damages in the amount of $1,191,322 by final judgment entered December 17, 2009. This appeal follows.
Chera Lynn Warren as mother and next friend of Tanner Reagan Perry Warren, an infant, (Tanner) also was a plaintiff in the underlying action; however, Tanner received no award and did not appeal.
While this appeal from the underlying wrongful death action was pending in the Court of Appeals, Jones's direct appeal of his criminal conviction was adjudicated by the Supreme Court in Appeal No. 2009-SC-000221-MR. By opinion rendered September 22, 2011, the Supreme Court reversed Jones's murder conviction based upon erroneous jury instructions and remanded for a new criminal trial.
It is well-established that a criminal conviction may be utilized to bar or preclude relitigation of issues in a civil action. Under the doctrine of issue preclusion, a party is generally precluded from relitigating an "issue actually litigated and finally decided in an earlier action." Yeoman v. Commonwealth Health Policy Board, 983 S.W.2d 459, 465 (Ky. 1998). Where a defendant has been convicted of murder in a criminal action, the defendant is generally precluded from relitigating the issue of his liability for the victim's death in a wrongful death action and, thus, liability is fixed against defendant in such wrongful death action. See Gossage v. Roberts, 904 S.W.2d 246 (Ky. App. 2005). For issue preclusion to bar relitigation of an issue, the following elements must be established:
First, the issue in the second case must be the same as the issue in the first case. Restatement (Second) of Judgments § 27 (1982). Second, the issue must have been actually litigated[.] Id. Third, even if an issue was actually litigated in a prior action, issue preclusion will not bar subsequent litigation unless the issue was actually decided in that action. Id. Fourth, for issue preclusion to operate as a bar, the decision on the issue in the prior action must have been necessary to the court's judgment. Id.Yeoman, 983 S.W.2d at 465.
Based upon the doctrine of issue preclusion, the circuit court rendered partial summary judgment on the issue of liability in the underlying wrongful death action based upon Jones's murder conviction in Action No. 08-CR-00009. However, the murder conviction has been reversed by the Supreme Court in Appeal No. 2009-SC-000221-MR. Because Jones's murder conviction was reversed by the Supreme Court, the concomitant adjudication of Jones's criminal liability arising from the murder conviction is, likewise, void. For this reason, the summary judgment must be reversed. See Rosenblum v. Commercial Bank of Middlesboro, 838 S.W.2d 423 (Ky. App. 1992)(holding that "once the judgment upon which a plea of res judicata is based is set aside, the issue [res judicata] is no longer a viable one"). Upon remand, the circuit court may proceed with the wrongful death action. The reversal of a criminal conviction does not per se preclude a wrongful death action since a criminal conviction requires proof beyond a reasonable doubt and a wrongful death action only requires a preponderance of evidence.
Accordingly, we reverse the June 18, 2009, partial summary judgment upon the issue of Jones's liability and, thus, the December 17, 2009, judgment. Upon remand, the wrongful death action may proceed since it is not precluded by the Supreme Court's reversal for a new trial of Jones's murder conviction.
For the foregoing reasons, the judgment of the Carlisle Circuit Court is reversed and this cause is remanded for proceedings consistent with this opinion.
ALL CONCUR. BRIEFS FOR APPELLANT: Kenneth R. Jones, Pro Se
LaGrange, Kentucky
BRIEF FOR APPELLEE: David L. Hargrove
Mayfield, Kentucky