Opinion
NO. 2017-CA-000074-MR
05-24-2019
MOHAMMAD R. SERAJI AND DEBRA T. SERAJI APPELLANTS v. RALPH PHILLIPS APPELLEE
BRIEF FOR APPELLANT: Michael W. Troutman Lexington, Kentucky BRIEF FOR APPELLEE: Bradley Guthrie Harrodsburg, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MERCER CIRCUIT COURT
HONORABLE DARREN W. PECKLER, JUDGE
ACTION NO. 15-CI-00101 OPINION
AFFIRMING
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BEFORE: COMBS, JONES, AND LAMBERT, JUDGES. JONES, JUDGE: The Appellants, Mohammad and Debra Seraji ("the Serajis") seek review of a verdict rendered in favor of the Appellee, Ralph Phillips ("Phillips"), following a civil jury trial in Mercer Circuit Court. The Serajis argue the trial court erred when it denied their motion for a directed verdict following the close of all evidence. They ask us to reverse the judgment entered in Phillips's favor and remand this matter to the trial court with instructions to enter a verdict in their favor. Alternatively, they maintain that we should vacate judgment and remand for a new trial because the jury instructions incorrectly stated the law and were not in the proper format insomuch as they consolidated the Serajis' various counts into a single instruction. Having reviewed the record in conjunction with all applicable legal authority, we affirm for the reasons more fully stated below.
I. BACKGROUND
The Serajis purchased four lots in Lee Oaks Estates subdivision in Mercer County from Phillips, the developer of the property. The Serajis built a house on Lots 42 and 43, but Lots 19 and 20 remained unimproved and were used as pasture for the Serajis' horses. After moving into their house, the Serajis claim they noticed a large amount of water collecting on Lots 19 and 20 when it rained. The Serajis became concerned they would not be able to develop the lots for future investment, so they retained Patrick Deming, an engineer who is an expert in development and water issues, to determine whether the Serajis would be able to build on the lots. After inspecting the lots, Deming determined the lots were not practical for building a residential building in their present states. He told the Serajis that both lots would require a substantial amount of work, including adding more fill dirt before they were anywhere near suitable for building.
Based on Deming's opinion on the condition of the lots, the Serajis filed suit in Mercer Circuit Court, claiming Phillips breached the contract between them, was negligent, violated the Mercer County Regulations, breached the implied warranty of fitness for a particular use, and violated the Kentucky Consumer Protection Act. Despite bringing several causes of action, the Serajis' claims centered around Section 5.10 D.1. of the Harrodsburg-Mercer County Subdivision Regulations, which provides: "All subdivisions shall result in the creation of lots that are developable and capable of being built upon. No subdivision shall create lots that are impractical to improve due to steepness of terrain, dangerous soil conditions, sinkholes, locations of water courses, or other natural physical limitations."
Based on this regulation, trial testimony focused on whether the lots were practical for construction of a residential building. Mr. Deming testified it was not practical to build on Lots 19 and 20 because 133 acres of water drained through them, and they should have been designated as a drainage retention area. He estimated it would cost $115,000 to add fill dirt to the lots to make them suitable for building. Joe Grider, the engineer hired to develop the land and Phillips's expert, agreed the lots would require fill dirt prior to construction, but he opined it would cost between four thousand and ten thousand dollars. Phillips testified that he discounted the cost of the lots to offset the cost of fill dirt, and the Serajis were aware of the reason for the discount prior to agreeing to purchase them.
At the close of evidence, both parties moved for a directed verdict, but the trial court denied both motions. The court then turned to the matter of jury instructions. Both parties tendered proposed instructions, and the court twice met with counsel to discuss jury instructions. During the first discussion, the trial court informed counsel it intended to consolidate all three causes of action into one instruction and two interrogatories. The Serajis argued there should be separate instructions and interrogatories for each cause of action. The Serajis also objected to the language of what eventually became the interrogatories in the final instructions.
The next morning, the trial court went over its final instructions with counsel. The court decided to submit to the jury separate sets of identical instructions for each lot to avoid an inconsistent verdict. Both sets of final jury instructions contained only one instruction, which provides: "It was the duty of the developer, defendant Ralph Phillips, to exercise reasonable care to ensure that subdivision lots were practical for the building of a residence as required in the Harrodsburg/Mercer County Planning and Zoning Ordinance." Two interrogatories followed this instruction. Interrogatory No. 1 asked, "[d]o you believe from the evidence presented that Lot 19 [and 20] of Lee Oaks Estates, when sold, was practical for the construction of some type of residential building?" If the jury answered yes, it would find for Phillips and cease deliberation. If the jury answered no, it would answer Interrogatory No. 2, which asked, "[d]o you believe from the evidence that the defendant, Ralph Phillips, disclosed to the plaintiffs, Mohammad and Debra Seraji, that Lot 19 [and 20] in Lee Oaks Subdivision was in need of additional work to be done before a residential building could be constructed?"
During this second and final discussion of the jury instructions, the Serajis agreed that the language of Interrogatory No. 1 was appropriate, but they objected to the language of Interrogatory No. 2. The Serajis' counsel also stated, "I certainly understand the court's logic last night about what it's doing." After this discussion, the instructions were submitted to the jury.
The jury answered yes to Interrogatory No. 1, finding for Phillips. Thus, the jury never addressed Interrogatory No. 2. This appeal followed.
II. ANALYSIS
The Serajis raise two issues on appeal: the trial court erred by (1) failing to award a directed verdict in their favor and (2) presenting instructions to the jury that did not follow the law.
A. Directed verdict
The Serajis argue they were entitled to a directed verdict based on the evidence presented at trial.
A directed verdict is appropriate when, drawing all inferences in favor of the nonmoving party, a reasonable jury could only conclude that the moving party was entitled to a verdict. The trial court is required to consider the evidence in its strongest light in favor of the party against whom the motion was made and must give him the advantage of every fair and reasonable intendment that the evidence can justify.Lambert v. Franklin Real Estate Co., 37 S.W.3d 770, 775 (Ky. App. 2000) (internal quotation marks and citations omitted). Furthermore, "[w]hile it is the jury's province to weigh evidence, the court will direct a verdict where there is no evidence of probative value to support the opposite result and the jury may not be permitted to reach a verdict based on mere speculation or conjecture." Gibbs v. Wickersham, 133 S.W.3d 494, 496 (Ky. App. 2004).
Although experts for both Phillips and the Serajis testified the land could not be built on without doing some work to the property, the Serajis argue only their expert, Mr. Deming, provided an opinion as to the cost to make the land suitable for constructing a residential building. Mr. Deming opined it would cost well over one hundred thousand dollars to make the lots suitable for this purpose. Mr. Grider, the engineer who developed the subdivision for Phillips, opined it would cost an extra four thousand to ten thousand dollars to add fill dirt to make the land suitable for building. The Serajis dispute Mr. Grider's opinion as to cost, arguing his estimate was merely guesswork.
In denying both parties' motions for directed verdict, the trial court stated:
My ruling [is] before a reasonable juror could determine from the evidence that either [the Serajis] or [Phillips] could survive this particular motion for directed verdict, and then [a juror] could believe or disbelieve such witnesses as they choose concerning the evidence. [The jury] may believe [Phillips's version of events surrounding the sale] or they may believe [the Serajis]. In any event, that makes it a justiciable issue for the jury to decide. [The jury] can choose to believe [the Serajis' expert] or [Phillips's expert]. The choice is purely up to [the jury]. Therefore, a directed verdict is inappropriate.
Both parties' experts presented their opinions regarding the cost required to make the lots suitable for constructing a house. Although the Serajis believe their expert's calculation is more reliable, the trial court properly declined to weigh that evidence and presented the issue to the jury. As such, we agree with the trial court's reasoning and conclude the Serajis' motion for directed verdict was properly denied.
B. Jury instructions
The Serajis argue the final jury instructions did not properly state the law. They contend there were several errors in the jury instructions, yet they raised only one specific objection to the court's instructions below. The Serajis objected to the language of Interrogatory No. 2. The jury found for Phillips under Interrogatory No. 1 as to both Lots 19 and 20, so it did not address Interrogatory No. 2. Where jurors do not reach a particular instruction, "[e]ven if we were convinced that this constituted error on behalf of the trial court, it "[does] not result in prejudice[.]" Welsh v. Galen of Virginia, Inc., 128 S.W.3d 41, 53 (Ky. App. 2001). Thus, because the jury did not reach this interrogatory, the Serajis were not prejudiced by any potential error in its language.
The Serajis argue there were additional errors contained in the final jury instructions, but these issues were not preserved below. First, the Serajis argue the two interrogatories should have been combined instead of presented separately to the jury. Second, the Serajis point out that Instruction No. 1 sets out the negligence standard of "reasonable care," but the interrogatory omits this standard and instead asks the jury to determine if each lot was "practical for the construction of some type of residential building." The Serajis argue the interrogatory fails to accurately state the law as to negligence, but they specifically agreed to this language when the trial court discussed its jury instructions with counsel. Third, the Serajis argue the trial court should have provided separate instructions for each cause of action. Fourth, the Serajis argue the elements of each cause of action are not included in the consolidated instruction.
To preserve errors in jury instructions, CR 51 requires an appellant to "fairly and adequately present[] his position to the trial court" by tendering proposed instructions and objecting to the trial court's instructions before the final instructions are given to the jury. In Boland-Maloney Lumber Co., Inc. v. Burnett, 302 S.W.3d 680, 690 (Ky. App. 2009), the appellant tendered proposed instructions to the trial court but failed to object to the court's final written instructions.
Kentucky Rules of Civil Procedure. --------
The underlying purpose of CR 51(3) is to obtain the best possible trial at the trial court level by giv[ing] the trial judge an opportunity to correct any errors before instructing the jury. Thus, we believe the failure to specifically object to the final written instructions means the objection to the language . . . has not been properly preserved for our review.Id. (quoting Sand Hill Energy, Inc. v. Smith, 142 S.W.3d 153, 162 (Ky. 2004) (internal quotation marks omitted). Additionally, "[W]hile a party generally may preserve instructional error by tendering to the trial court a correct formulation of the jury instruction, he may not at the same time sit idly by during the jury instruction conference and create the appearance of acquiescence to erroneous instructions." Smith v. Commonwealth, 370 S.W.3d 871, 875 (Ky. 2012).
Here, the Serajis tendered proposed instructions to the trial court and made at least two objections to the court's proposed instructions at the end of the first day of trial. However, the Serajis did not object to these alleged errors in the court's proposed final instructions when the court discussed them with counsel prior to submitting them to the jury on the second day. The Serajis objected to the language in Interrogatory No. 2 during the discussion, so they had the opportunity to raise these additional objections. Instead, the Serajis acquiesced to the final jury instructions by sitting idly by, and even agreeing to the language of the first interrogatory and telling the court they understood the court's reasoning for combining their counts into a single instruction. They offered no further objection. As these issues are unpreserved, we are "without authority to review issues not raised in or decided by the trial court." Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989) (internal citations omitted).
Nevertheless, we note that the trial court's decision to combine the instructions was based on the Serajis' decision to forego their claims for damages and seek the equitable remedy of rescission of the sales of the two disputed lots. The instructions fashioned by the trial court correctly stated the law and presented the relevant factual disputes to the jury for decision.
Kentucky trial courts use a "bare bones" approach to draft jury instructions. Olfice, Inc. v. Wilkey, 173 S.W.3d 226, 227 (Ky. 2005). "Instructions must be based upon the evidence and they must properly and intelligibly state the law. . . . If the statements of law contained in the instructions are substantially correct, they will not be condemned as prejudicial unless they are calculated to mislead the jury." Hamilton v. CSX Transp., Inc., 208 S.W.3d 272 (2006) (internal citations omitted).
The basic function of instructions in Kentucky is to tell the jury what it must believe from the evidence in order to resolve each dispositive factual issue in favor of the party who bears the burden of proof on that issue. . . . The increasing use of interrogatories instead of general instructions reflects a realization that the less the jurors know about the law of the case the easier it is for them to remain strictly within the province of fact-finding. The jury's only function is to decide disputed issues of fact, and the instructions should seek to 'fairly submit proper issues to the jury.John S. Palmore, Kentucky Instructions to Juries, § 13.01 (6th Ed. 2013) (internal citations omitted).
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the Mercer Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Michael W. Troutman
Lexington, Kentucky BRIEF FOR APPELLEE: Bradley Guthrie
Harrodsburg, Kentucky