RENDERED: NOVEMBER 6, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1150-MR
MORGAN R. PETTY APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE ANGELA MCCORMICK BISIG, JUDGE
ACTION NO. 17-CI-001882
KENTUCKY FARM BUREAU
MUTUAL INSURANCE COMPANY APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE: GOODWINE, MCNEILL, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Morgan Petty, pro se, appeals from an order of the
Jefferson Circuit Court which found her negligent in an automobile accident after a
bench trial. Appellant argues that she was improperly denied a jury trial and that
the trial court made evidentiary errors. We believe that Appellant was entitled to a
jury trial; therefore, we vacate the judgment of the trial court and remand for a new
trial.
FACTS AND PROCEDURAL HISTORY
This case involves an automobile accident that occurred on or about
January 28, 2016. One of the vehicles involved in the accident was operated by
Austin Towles, who was insured by Kentucky Farm Bureau Mutual Insurance
Company. Miki Towles, Austin’s mother, was a passenger in that vehicle. The
other vehicle involved was being driven by Appellant. The vehicle being operated
by Appellant was owned by Appellant’s father and was uninsured.
Appellee paid for the damages to the Towles’ vehicle and brought this
underlying suit against Appellant to recoup the money. Appellant filed her answer
pro se1 and discovery began. Both Appellant and Appellee sought a jury trial. On
August 22, 2018, Appellee filed a motion to set a trial date and again requested a
jury trial. On August 28, 2018, the trial court entered an order setting a bench trial
for April 26, 2019. It is unclear from the record why the trial court ordered a
bench trial. Counsel who represented Appellee at trial speculated that previous
counsel for Appellee requested it. This request does not appear in the written
record or in any recording.
1
Appellant has acted pro se at all times during this case.
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The bench trial order mailed to Appellant by the court was returned to
the court as undeliverable. It is unclear when or if Appellant received a copy of
this order; however, she did appear in court on the designated day of trial. When
the parties appeared before the court on April 26, 2019, the trial judge informed
them that she was currently engaged in a jury trial and would not have enough time
to hold the trial that day. She also briefly discussed how it was going to be a bench
trial. Appellant did not raise any objection at this time to the lack of a jury trial.
A new trial was scheduled for May 6, 2019. On that day, Appellant
objected to the lack of a jury trial multiple times, but indicated she was ready to
proceed if the court was going to have a bench trial. The court then conducted a
bench trial where Appellant, Mr. Towles, Ms. Towles, and an agent for Appellee
all testified. Appellant claimed that Mr. Towles caused the accident and Mr. and
Ms. Towles claimed that Appellant caused the accident. On July 3, 2019, the trial
court entered an order finding Appellant at fault and awarded Appellee over $5,000
in damages. This appeal followed.
ANALYSIS
We must first address a motion filed by Appellee. Appellee moved to
strike Appellant’s brief for failing to comply with Kentucky Rules of Civil
Procedure (CR) 76.12(4)(c)(iv) and (v). In a separate order entered by this Court,
we held that Appellant did violate the civil rules, but we declined to strike her
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brief. Instead, we will review the issues raised on appeal for manifest injustice.
See Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010). Manifest injustice is
the “probability of a different result or error so fundamental as to threaten a
[party’s] entitlement to due process of law.” Petrie v. Brackett, 590 S.W.3d 830,
835 (Ky. App. 2019) (citation and quotation marks omitted).
Appellant’s first argument on appeal is that she was entitled to a trial
by jury and the trial court erred in holding a bench trial. We agree and find this
represents manifest injustice because it is an “error so fundamental as to threaten a
[party’s] entitlement to due process of law.” Id. CR 38.04 states in pertinent part
that “[a] demand for trial by jury made as herein provided may not be withdrawn
without the consent of the parties.” CR 39.01 states:
When trial by jury has been demanded as provided in
Rule 38, the action shall be designated upon the docket as
a jury action. The trial of all issues so demanded shall be
by jury, unless (a) the parties or their attorneys of record,
by written stipulation filed with the court or by an oral
stipulation made in open court and entered in the record,
consent to trial by the court sitting without a jury, or (b)
the court upon motion or of its own initiative finds that a
right of trial by jury of some or all of the issues does not
exist under the Constitution or Statutes of Kentucky.
Here, Appellant requested a jury trial. There is no document filed with the court in
which she waived her right to a jury trial. Appellee argues that Appellant waived
her right to a jury trial when she did not object to a bench trial when the trial court
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informed her of it on April 26, 2019, the first trial date that had to be postponed.
We disagree with Appellee.
The case of Hazard Coal Corporation v. Knight, 325 S.W.3d 290 (Ky.
2010), is directly on point. In Hazard Coal, Hazard Coal2 owned the mineral
rights under the Knights’ two tracts of land. Hazard Coal used and maintained a
coal haul road across the Knights’ land. Hazard Coal used the road to haul coal
mined from underneath the Knights’ property, but also used it for other purposes.
The Knights believed Hazard Coal did not have a right to use the road for these
other purposes and brought suit alleging trespass.
Hazard Coal and the Knights requested a jury trial. At a pretrial
conference, the trial court, sua sponte, announced it was going to hold a bench trial
because the court believed the issues were too complicated for a jury. The Knights
did not challenge the lack of a jury trial at this time. The Knights appeared for the
bench trial and fully participated. The trial court ultimately found in favor of
Hazard Coal. The Knights then moved to alter, amend, or vacate the judgment
because the trial court did not hold a jury trial as they had requested. The motion
was denied.
2
There were multiple people and entities who owned parts of the mineral rights and surface
rights to the land at issue. To simplify things, we will refer to the appellants as Hazard Coal and
the appellees as the Knights.
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On appeal to the Court of Appeals, the Court held that the lack of a
jury trial was erroneous. The Kentucky Supreme Court affirmed and held that the
Knights’ failure to object to the bench trial did not constitute a waiver of their right
to a jury trial.
“The ancient mode of trial by jury shall be held
sacred, and the right thereof remain inviolate, subject to
such modifications as may be authorized by this
Constitution.” [Kentucky Constitution (Ky. Const.)] § 7.
Our Constitution designates no other right as one which
“shall be held sacred.” This right is incorporated into CR
38.01, which states as follows: “The right of trial by jury
as declared by the Constitution of Kentucky or as given
by a statute of Kentucky shall be preserved to the parties
inviolate.” See also Meyers v. Chapman Printing Co.,
Inc., 840 S.W.2d 814, 819 (Ky. 1992) (The Kentucky
Constitution, Sec. 7, preserves “the ancient mode of trial
by jury.” A “civil cause of action” for “damages
sustained” is the classical textbook paradigm of an action
at law wherein “[t]he constitution guarantees a trial by
jury in cases of this character.”).
Hazard Coal, 325 S.W.3d at 295.
“The constitutional term ‘inviolate’ means that the
right to trial by jury is unassailable. Henceforth,
legislation and civil rules of practice shall be construed
strictly and observed vigilantly in favor of the right and is
not to be abrogated arbitrarily by the courts. The
constitutional right to a jury trial cannot be annulled,
obstructed, impaired, or restricted by legislative or
judicial action.” Steelvest, Inc. v. Scansteel Service
Center, Inc., 908 S.W.2d 104, 108 (Ky. 1995).
Moreover, as with statutes, we interpret the civil rules in
accordance with their plain language. Lanham v.
Commonwealth, 171 S.W.3d 14, 21 fn. 9 (Ky. 2005).
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The mandate of CR 39.01 is unmistakable in its
clarity. Its plain and forthright language affords no other
construction but that once a proper demand for a jury
trial has been made, the trial shall be by jury unless there
is either a written stipulation filed with the court, or an
oral stipulation of waiver made in open court. “In
common or ordinary parlance, and in its ordinary
signification, the term ‘shall’ is a word of command and
. . . must be given a compulsory meaning.” Black’s Law
Dictionary 1233 (5th ed. 1979). “Shall means
shall.” Vandertoll v. Commonwealth, 110 S.W.3d 789,
795-796 (Ky. 2003).
Id. at 295-96 (emphasis in original). “We have previously stated [t]here is a
presumption against the waiver of constitutional rights, and for a waiver to be
effective it must be clearly established that there was an intentional relinquishment
or abandonment of a known right or privilege.” Id. at 297 (footnote, citations, and
quotation marks omitted).
As in Hazard Coal, the trial court in the case sub judice presided over
a bench trial after a jury trial had been requested. Unlike in Hazard Coal,
Appellant objected multiple times to the lack of a jury trial. If the Knights were
entitled to a new jury trial when they did not object to the bench trial, then clearly
Appellant is entitled to a jury trial when she did object. Appellant asked for a jury
trial in her answer to the complaint, did not waive her jury trial rights either in
writing or orally on the record, and objected when the trial court held the bench
trial. The failure to hold a jury trial was manifest error as a jury trial is a
fundamental right; therefore, Appellant is entitled to a jury trial.
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Appellant also raises two evidentiary issues on appeal. Since we are
remanding for a new trial, these issues may occur again; therefore, we will address
them. As previously mentioned, the vehicle being driven by Appellant was
uninsured. Sometime after the accident, Appellant pleaded guilty to failure to
maintain car insurance.3 As part of this guilty plea, she was required to pay the
Towles’ car insurance deductible of $500. Appellant was questioned about her
guilty plea at trial by Appellee’s counsel. Appellant objected and argued that the
guilty plea was irrelevant, but the court overruled the objection.
Kentucky Rules of Evidence (KRE) 411 states:
Evidence that a person was or was not insured against
liability is not admissible upon the issue whether the
person acted negligently or otherwise wrongfully. This
rule does not require the exclusion of evidence of
insurance against liability when offered for another
purpose, such as proof of agency, ownership, or control,
or bias or prejudice of a witness.
If Appellee decides to question Appellant regarding her guilty plea again during
the jury trial, Appellee should keep in mind KRE 411 and not use the line of
questioning to imply or prove negligence.
Appellant also argues that text messages exchanged between her and
Ms. Towles were not properly authenticated and should not have been admitted
3
Kentucky Revised Statutes (KRS) 304.39-080(5).
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into evidence. We find no error. KRE 901 deals with authentication and states in
relevant part:
(a) General provision. The requirement of authentication
or identification as a condition precedent to admissibility
is satisfied by evidence sufficient to support a finding
that the matter in question is what its proponent claims.
(b) Illustrations. By way of illustration only, and not by
way of limitation, the following are examples of
authentication or identification conforming with the
requirements of this rule:
(1) Testimony of witness with knowledge.
Testimony that a matter is what it is claimed
to be.
[A party’s] burden under KRE 901 to authenticate
a writing is “slight,” requiring only a “prima facie
showing.” A trial court may admit an item so long as it
finds sufficient proof has been presented from which a
jury may reasonably deem an item to be what it is
proclaimed to be. While the judge determines
admissibility of the item, the jury determines its
authenticity and “probative force.”
Under KRE 901(b), the most common way to
authenticate an item is through testimony of a witness
that it is “what it is claimed to be.” . . . Exercising its
considerable discretion, a trial court may admit a piece of
evidence solely on the basis of testimony from a
knowledgeable person that the item is what it purports to
be and its condition has been substantially unchanged.
Kays v. Commonwealth, 505 S.W.3d 260, 270 (Ky. App. 2016) (citations omitted).
Here, Ms. Towles testified that the text messages were between her
and Appellant. This is sufficient under KRE 901 to authenticate the text messages
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and allow them into evidence. During the new trial, Appellant is free to argue that
the messages are incomplete or have been altered if she believes they are not
genuine.
CONCLUSION
Based on the foregoing, we vacate the judgment on appeal and
remand for a jury trial. Appellant did not waive her right to a jury trial and is
entitled to one.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Morgan R. Petty, pro se Jessica M. Stemple
Prospect, Kentucky Louisville, Kentucky
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