CULVER III v. LOUISVILLE JEFFERSON COUNTY METRO GOVERNMENT II (2026)

OPINION

These appeals concern claims for compensation for time spent on-call during employment. The appellants in Appeal No. 2024-CA-1174- MR are six current and former members of the Louisville Metro Police Department's Special Weapons and Tactical (SWAT) Team (collectively SWAT1) who claim they are entitled to compensation for each hour spent on-call as a SWAT Team member pursuant to both Kentucky's wage and hour laws and the collective bargaining agreement (CBA) entered into with Louisville/Metro County Government (Metro) by their union, River City Fraternal Order of Police Lodge #614 (FOP). The claims of SWAT1 were tried before a jury which found in favor of Metro. SWAT1 appeals orders of the Jefferson Circuit Court that (1) denied their motions for partial summary judgment both prior to and after trial; and (2) denied their motion for a new trial. In the Cross-Appeal No. 2024-CA-1208-MR Metro claims it was entitled to a directed verdict following the close of proof at trial. Metro also requests this Court address whether KRS ¹ 67C.400 et seq. prohibits a private right of action to enforce a CBA.

The appellants in Appeal No. 2024-CA-1179-MR are 53 other current and former members of Metro's SWAT Team (collectively SWAT2) who filed suit at the same time as SWAT1, but whose claims were not tried. They contend they were also entitled to summary judgment prior to and after trial along with SWAT1 (when referring to SWAT1 and SWAT2 collectively herein, we refer to them simply as Appellants or SWAT Team members). Alternatively, they seek correction of what they claim are the trial court's errors during SWAT1's trial so they are not repeated in future trials wherein SWAT2 will also seek on-call compensation. SWAT2 denotes their action before this Court as a “protective appeal.” In Cross-Appeal No. 2024-CA-1210-MR, Metro also claims it was entitled to summary judgment prior to trial.

After careful review of the record and having held oral arguments on August 13, 2026, we affirm the trial court with regard to all appeals and cross-appeals. None of the parties were entitled to summary judgment. Further, the trial court did not commit error with regard to the jury instructions, nor did it abuse its discretion regarding admission of evidence described in greater detail herein. Finally, because we are affirming the jury verdict in favor of Metro, the question of whether Metro was entitled to a directed verdict is moot. However, we briefly address the issue herein because it is germane to potential trials involving SWAT2.

I. Factual and Procedural Background

From 2001 to 2016, Metro employed a part-time SWAT Team. In 2016, Metro made the decision to employ 20 full-time SWAT Team members to work first shift (9:00 a.m.–5:00 p.m.).² However, due to the unpredictable nature and timing of criminal activity and the service of high-risk warrants requiring SWAT intervention, each SWAT Team member is required to be on-call two weeks out of each month. When a SWAT officer is on-call, they are given a vehicle to keep their tactical gear ready for use should they be called out. They are also permitted to pursue secondary employment as long as it does not interfere with their ability to respond to call outs. According to Metro's Standard Operating Procedures (SOP), it is preferred that SWAT Team members answer a call within five minutes and, if called out, it is preferred they arrive at the location within 45 minutes. They are also prohibited from consuming alcohol while on-call. SWAT Team members are free to swap on-call shifts with each other without prior administrative approval.

On March 31, 2016, Appellants filed the underlying complaint, alleging violations of Kentucky's wage and hour laws (KRS Chapter 337) and contract law (CBA). Metro filed two motions for summary judgment which were denied. A trial began in 2021, but a mistrial was declared shortly after. Prior to commencement of the second trial, all parties filed motions for summary judgment which were denied. The second trial involving only SWAT1 took place from July 18–29, 2022, and the jury entered verdicts for Metro on all claims. SWAT1 subsequently filed a motion for a new trial. During the pendency of the post-trial motions, an election took place and a new judge was sworn in. After extensive briefing and oral arguments, the trial court granted SWAT1's motion for a new trial based on what it ruled were “inflammatory evidence and improper jury instructions.”³ Several months later, Metro filed a motion to reconsider, and Appellants filed a renewed motion for summary judgment. The trial court granted the motion for reconsideration, which reinstated the jury verdict, and denied the motion for summary judgment as moot. The trial court stated it stood by its reasoning to grant a new trial, but acknowledged it did not give proper deference to the rulings of the prior judge, who had presided over the case for over six years at the time of the second trial. The trial court also acknowledged the case would end up before the Court of Appeals regardless, finding that “[g]ranting a new trial would be the longest route to get to the same destination.”⁴ These appeals followed. Further facts will be developed as necessary.

II. Subject Matter Jurisdiction

At oral arguments, Appellants for the first time raised the issue of subject matter jurisdiction. Appellants alleged that Metro's Motion for Reconsideration, the motion which led to the trial court reinstating the jury verdict that had previously been vacated when the trial court granted Appellants’ Motion for a New Trial, was improper and untimely. Appellants argued that Metro was required to have appealed the order granting Appellants a new trial, and the failure of Metro to do so within the appropriate time frame precluded the trial court from granting Metro's Motion for Reconsideration.

“An appellate court ‘is without authority to review issues not raised in or decided by the trial court.’ ” Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 734 (Ky. 2009) (quoting Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989)). For this reason, it has long been the policy of Kentucky's appellate courts to find that specific errors not raised before the trial court but brought to light in the final minutes of rebuttal during oral argument will not support a favorable ruling on appeal. See Commonwealth v. Steadman, 411 S.W.3d 717, 724 (Ky. 2013) (quoting Fischer v. Fischer, 348 S.W.3d 582, 588 (Ky. 2011)). Nevertheless, questions of subject matter jurisdiction are the “lone exception” to this rule. Id.

In support of their argument, Appellants presented this Court with the case of Crowe v. Crowe, 95 S.W.2d 251 (Ky. 1936). In Crowe, the highest court of the Commonwealth stated “that in a proceeding under section 518 of the Civil Code of Practice, an order vacating a judgment and granting a new trial is a final order from which an appeal will lie.” Id. at 252. We first note that Kentucky courts have not been governed by the Civil Code of Practice since July 1, 1953. See Howard v. Miller, 685 S.W.2d 548 (Ky. 1985). Since the implementation of Kentucky's Uniform Rules of Civil Procedure (CR), “[t]he rule is that an order either sustaining or denying a motion for a new trial authorized by CR 59.01 is not a final order and is not appealable as such[.]” Hardin v. Waddell, 316 S.W.2d 367, 368 (Ky. 1958).

Furthermore, “[w]hether a court has [subject matter] jurisdiction is determined at the beginning of a case, based on the type of case presented․ Thus, a court ‘will retain jurisdiction over such a case so long as jurisdiction was proper in the first place.’ ” Steadman, 411 S.W.3d at 722 (quoting Leonard v. Commonwealth, 279 S.W.3d 151, 156 (Ky. 2009)). “Indeed, once a court has acquired jurisdiction, no subsequent error or irregularity will remove that jurisdiction[.]” Id. (quoting Commonwealth v. Adkins, 29 S.W.3d 793, 795 (Ky. 2000)). Therefore, Appellants have raised a question over the trial court's exercise of jurisdiction in this particular case which does not invoke subject matter jurisdiction, “[a]nd [particular case] jurisdiction is subject to waiver.” Id. at 724. Though we find no error based on Appellants’ misstatement of the law, we also find any alleged irregularity has been waived by Appellants’ failure to raise the issue before the trial court.

III. Standard of Review

These appeals contain numerous arguments subject to varying standards of review. SWAT1 claims it is entitled to a new trial. Generally, a trial court's denial of a motion for a new trial is reviewed under an abuse of discretion standard. Brown v. Commonwealth, 174 S.W.3d 421, 428 (Ky. 2005). SWAT1 insists a new trial is appropriate based on what it alleges were erroneous jury instructions. This argument is reiterated by SWAT2 as applicable to future litigation. “Alleged errors regarding jury instructions are considered questions of law that [appellate courts] examine under a de novo standard of review.” Hamilton v. CSX Transp., Inc., 208 S.W.3d 272, 275 (Ky. App. 2006) (citations omitted). When examining jury instructions for error, the instructions must be read as a whole. Bills v. Commonwealth, 851 S.W.2d 466, 471 (Ky. 1993).

Appellants also allege numerous evidentiary errors. “The standard of review on evidentiary issues is abuse of discretion.” Leach v. Commonwealth, 571 S.W.3d 550, 553 (Ky. 2019) (citations omitted). Additionally, Appellants claim the trial court erred in denying their motions for summary judgment. The particular standard for appellate review of denial of a motion for summary judgment is discussed in greater detail infra. Metro essentially makes the same argument as Appellants in that its motions for summary judgment should have been granted, particularly as related to the breach of contract claims.

IV. Analysis

Central to Appellants’ arguments is an administrative regulation that expired in 2020: 803 KAR ⁵ 1:065. The current applicable regulation, 803 KAR 1:067, specifically substitutes the previous regulation's text with language used by the United States Department of Labor in 29 C.F.R.⁶ §§ 785.14 through 785.17. However, the relevant language is identical between the expired regulation and the federal counterparts incorporated by reference in the current regulation. We refer to the prior regulation, though expired, for consistency with the trial court's rulings and the arguments presented to both the trial court and this Court. To be clear, the parties have not disputed the applicability of the regulation which states, in relevant part, as follows:

Section 3. Waiting Time.

(1) General. Whether waiting time is worked under the act depends upon particular circumstances. The determination involves scrutiny and construction of the agreements between particular parties, appraisal of their practical construction of the working agreement by conduct, consideration of the nature of the service, and its relation to the waiting time, and all of the circumstances. Facts may show that the employee was engaged to wait, or they show that he waited to be engaged. Such questions must be determined in accordance with common sense and the general concept of work or employment.

(2) On duty. A stenographer who reads a book while waiting for dictation, a messenger who works a crossword puzzle while awaiting assignments, fireman who plays checkers while waiting for alarms and a factory worker who talks to his fellow employees while waiting for machinery to be repaired are all working during their period of inactivity. The rule also applies to employees who work away from the plan. For example, a repair man is working while he waits for his employer's customer to get the premises in readiness. The time is worktime even though the employee is allowed to leave the premises or the job site during such periods of inactivity. The periods during which these occur are unpredictable. They are usually of short duration. In either event the employee is unable to use the time effectively for his own purpose. It belongs to and is controlled by the employer. In all of these cases waiting is an integral part of the job. The employee is engaged to wait.

(3) Off duty.

(a) Period during which an employee is completely relieved from duty and which are long enough to enable him to use the time effectively for his own purposes are not hours worked. He is not completely relieved from duty and cannot use the time effectively for his own purposes unless he is definitely told in advance that he may leave the job and that he will not have to commence work until a definitely specified hour has arrived. Whether the time is long enough to enable him to use the time effectively for his own purposes depends upon all of the facts and circumstances of the case.

(b) A truck driver who has to wait at or near the job site for goods to be loaded is working during the loading period. If the driver reaches his destination and while awaiting the return trip is required to take care of his employer's property, he is also working while waiting. In both cases the employee is engaged to wait. Waiting is an integral part of the job. On the other hand, for example, if the truck driver is sent from Louisville to Paducah, leaving at 9 a.m. and arriving at 2 p.m., and is completely and specifically relieved from all duty until 8 p.m. when he again goes on duty for the return trip, the idle time is not working time.[7] He is waiting to be engaged.

(4) On-call time. An employee who is required to remain on call on the employer's premises or so close thereto that he cannot use the time effectively for his own purposes is working while on call. An employee who is not required to remain on the employer's premises but is merely required to leave word at his home or with company officials where he may be reached is not working while on call.

(Emphasis added.)

With the regulation in mind, we turn to Appellants’ arguments.

A. Jury Instructions

SWAT1 argues the jury instructions pertaining to their wage and hour claim at trial were erroneous because the trial court failed to instruct the jury on the requirements for an employee to be off duty. SWAT2 also argues the jury instructions were erroneous and need to be corrected for future trials. As a general matter, we note Appellants’ arguments ignore § 3(4) of the regulation pertaining to on-call time as a distinct category of waiting time in the regulation. Rather, they present a novel, albeit muddled, interpretation by focusing on whether SWAT Team Members were off duty while being on-call. We disagree with Appellants’ interpretation of the regulation, including how it should have been presented to the jury in the form of instructions.

We recognize that “[u]nder Kentucky law, administrative regulations have the full force and effect of law when duly enacted and consistent with enabling legislation.” Hughes v. UPS Supply Chain Sols., Inc., 677 S.W.3d 273, 280 (Ky. 2023) (citation omitted). Further,

the purpose of jury instructions is to give direction to the jury in their deliberations so that the members are able to arrive at a correct verdict. Thus, “[i]f 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.” Ballback's Adm'r v. Boland–Maloney Lumber Co., 306 Ky. 647, 652–53, 208 S.W.2d 940, 943 (Ky. 1948).

Mendez v. University of Kentucky Bd. of Trs., 357 S.W.3d 534, 539 (Ky. App. 2011).

We agree with Metro that it is appropriate to look to federal law for guidance, particularly because the current Kentucky regulation (803 KAR 1:067) refers directly to the federal counterparts, which include citations to federal caselaw within the regulations. See also Hughes, 677 S.W.3d at 280 (acknowledging “[t]he longstanding similarities between KRS Chapter 337's administrative regulations and their federal counterparts”). Further, SWAT1's proposed jury instructions filed with the trial court cite to both the regulation at issue and to opinions of the United States Supreme Court. While published Kentucky caselaw is scant, this Court has recognized, in order to determine if an employee's on-call time is compensable,

[t]he pertinent sections of 803 KAR 1:065 provide that employees shall be compensated while “on-call”, if they are so restricted as not to be able to use their time effectively for their own purposes. The regulation also provides that “an employee who is not required to remain on the employer's premises, but is merely required to leave word at his home or with company officials where he may be reached is not working while ‘on-call.’ ”

Spellman v. Fiscal Ct. of Jefferson Cnty., 574 S.W.2d 342, 343 (Ky. App. 1978).

Similarly, federal caselaw instructs that

[a]n employee must be compensated for on call time spent “predominantly for the employer's benefit.” [Aiken v. City of Memphis, Tennessee, 190 F.3d 753, 760 (6th Cir. 1999)]. “[T]he question in on-call cases is whether the employer's restrictions on [its employees’] time prevent the employees from effectively using the time for personal pursuits.” Id. To be considered work time, an employee's on-call time must be “severely restricted.” Id. This determination is fact-specific, and the circumstances of each case must be considered. Id. “The fact that some of the plaintiffs’ activities have been affected by the policy is not sufficient to make the on-call time compensable. The plaintiffs must show that the policy is so onerous as to prevent them from effectively using their free time for personal pursuits.” Martin v. Ohio Turnpike Comm'n, 968 F.2d 606, 611 (6th Cir. 1992).

Rutlin v. Prime Succession, Inc., 220 F.3d 737, 743–44 (6th Cir. 2000) (footnote omitted).

The relevant instructions provided to the jury by the trial court are as follows:

INSTRUCTION NUMBER 2

The purpose of this trial, and your duty as jurors, is to determine whether the six Plaintiffs, Eric S. Culver, Larry Dale Massey, Jr., William D. Pearson, III, Jason Poston, Brent Routzahn, and Scott Gregory Walker (hereinafter collectively, “Plaintiffs”), were working when on-call for the Louisville Metro Police Department as members of the [SWAT] Team, by Defendant, [Metro]. If you determine that Plaintiffs were working while on-call with the SWAT Team, then they are required to be compensated for such time. An employer cannot accept the benefits of an employee's work without compensation.

․

INSTRUCTION NUMBER 4 WAGE AND HOUR CLAIM

You will find for Plaintiffs under this Instruction if, and only if, you are satisfied from the evidence that:

A. The on-call assignment on the SWAT Team was predominantly for [Metro's], and not Plaintiffs’, benefit;

AND

B. The on-call assignments for each Plaintiff were so restrictive that he could not use his time effectively for his own purposes.

These questions must be answered for each Plaintiff.

For purposes of determining whether a Plaintiff's free time is “severely restricted,” you may consider the following factors: (1) the frequency of calls to the on-call Plaintiff; (2) geographical restrictions on each Plaintiff's movements; (3) the restrictiveness of fixed time limits for response; (4) the subjection to discipline in the event of a late or no response from the on-call Plaintiff; (5) the on-call Plaintiff's ability to trade his responsibilities with another co-worker; (6) the on-call Plaintiff's actual pursuit of, or engagement in, personal activities, including secondary employment; and (7) the on-call assignments did not provide a definitive time in advance that Plaintiffs may leave the job and did not tell Plaintiffs that they would not have to report to work until a definite time.

Appellants argue that Instruction 4(B)(7) should have been front and center in the jury instructions, not just listed as a factor that jurors may consider. Notably, in closing arguments, counsel for SWAT1 had an opportunity to and did emphasize Instruction 4(B)(7) and told the jury that it alone was determinative of the entire case. However, Appellants have not cited a single case, either in Kentucky or from the federal courts, that requires an employer must “provide a definitive time in advance that an employee may leave the job and tell the employee they would not have to report to work until a definite time” for employees who are on-call. 803 KAR 1:065 § 3(3)(a) contains this language for determination of whether an employee is off duty, but the question presented is not whether SWAT1 was off duty, but rather if they were working while on-call. The regulation provides distinct and clear categories for on duty, off duty, and on-call. Providing a definitive time in advance that an employee may leave the job and telling the employee they would not have to report to work until a definite time is criteria for being off duty, not on-call. The nature of being on-call, particularly for those in law enforcement, is that one is available to respond to unforeseen and unpredictable situations. Aside from the service of warrants that may be coordinated with other departments to occur at a certain time, there is simply no way of knowing at what point or where SWAT Team members will be needed in the Louisville Metro area. By Appellants’ reasoning, SWAT Team members would be on duty around the clock for one-half of the year because there is no way to assure them that they will need to report to work at a definitive time while on-call. This uncertainty is simply the reality of being on-call.

Appellants also argue the trial court erred because it did not instruct the jury to find for SWAT1 if it determined that on-call status is predominately for the benefit of Metro. This argument is refuted simply by looking at the face of Instruction 4(A), supra. However, Appellants argue the error lies in the fact that the trial court included the additional requirement that “[t]he on-call assignments for each Plaintiff were so restrictive that he could not use his free time effectively for his own purposes.” See Jury Instruction 4(B). The instruction properly reflected 803 KAR 1:065 § 3(4) and relevant law. Moreover, SWAT1's Instruction No. 1, filed in the trial court by SWAT1 on May 31, 2022, provides, in relevant part only

(A) [Metro] did not tell them in advance that they were off the job and would not have to commence work again until a definitely specified time ․ If you so determine, each Plaintiff will have remained “on duty” while assigned to being on-call ․ and was working for [Metro].

(B) Whether their on-call assignment as a SWAT Team member is predominately for the benefit of [Metro] by engaging each Plaintiff to wait and prepare to serve ․ If you so determine, each Plaintiff while assigned to being on-call was working for [Metro].

(C) Whether on-call assignments to each Plaintiff are so restrictive that they cannot use the time effectively for their own purposes. [803 KAR 1:065 [§] 3(4); see also Ford Motor Credit Co. v. Milhollin, 444 U.S. 555-56, 100 S. Ct. 790, 792, 63 L. Ed. 2d 22 (1980)]. If you so determine, each Plaintiff while assigned to being on-call was working for Metro.

In other words, SWAT1's proposed jury instructions contain precisely the language they now say was erroneous. In closing arguments, counsel for SWAT1 also stated she agreed with Metro that Jury Instruction 4(B) was the “key” to the entire case. Video Record (VR) 7/29/22 at 10:44:02. Appellants’ argument is without merit and we discern no error.

Metro has never denied that they did not provide a definitive time in advance that on-call SWAT Team members could leave the job and not have to report back to work until a definite time. There was simply no way Metro could have provided those assurances because the officers were on-call, not off duty. Moreover, it would have been improper to instruct the jury as to whether SWAT1 was off duty while on-call because on-call and off duty are two separate and distinct categories (i.e., they can either be off duty or on-call, but not both). The jury instructions provided by the trial court reflect the regulation and applicable law to determine whether Appellants were working while on-call. Specifically, whether the time spent on-call was predominantly for the benefit of Metro (see Aiken, 190 F.3d at 760; Armour & Co. v. Wantock, 323 U.S. 126, 133, 65 S. Ct. 165, 168, 89 L. Ed. 118 (1944)) and whether the on-call assignments were so restrictive that each member of SWAT1 could not use his time effectively for his own purpose. See 803 KAR 1:065 § 3(4); Spellman, 574 S.W.2d at 343; Rutlin, 220 F.3d at 743–44. The factors listed by the trial court, with the exception of 4(B)(7), provided optional guidelines, based on the evidence presented and the applicable law, as to whether the time spent on-call was so severely restricted that it prevented those on SWAT1 from using the time effectively for their own purposes. The fact that the trial court included the off-duty language as a factor the jury may consider was error, but it was harmless and likely worked in favor of SWAT1, although the ultimate verdict did not.

B. Evidentiary Issues

Appellants allege the trial court erred by allowing entry of an “overwhelming” amount of irrelevant and prejudicial evidence. We disagree.

1. Evidence and commentary regarding potential financial and tax consequences of a verdict in favor of SWAT1

Appellants argue it was error for the trial court to allow proof of the amount of damages sought by all SWAT Team members in the lawsuit (approximately $150,000,000) instead of only the amounts sought by each individual officer in SWAT1. Second, Appellants argue the trial court impermissibly allowed Metro to introduce evidence and commentary during opening and closing arguments that reinforced the fact the jurors, as taxpayers, would ultimately be responsible for the financial consequences of any verdict in favor of SWAT1. Finally, Appellants assert the trial court erred by allowing evidence regarding the potential financial impact to Metro in the event of a jury verdict.

We begin by noting that at the post-trial hearing on Metro's motion to reconsider the trial court's order for a new trial, counsel for Metro argued the prior judge allowed Appellants to choose six SWAT members to be the first to bring their claims before the jury (i.e., SWAT1) and testify that they would accept 25% of their individual damages in exchange for allowing Metro to introduce evidence of the entire amount of damages sought (i.e., excess of $150,000,000). However, we could find no order in the record to that end, and none has been cited. We agree the trial court ruled numerous times from the bench that the jury was entitled to know the full extent of what was at stake in terms of damages, but we find nothing in the record to support it was “in exchange” for anything else.

During voir dire on July 19, 2022, counsel for SWAT1 gave a hypothetical situation to potential jurors citing a $500,000 judgment. She then stated:

What if someone in the jury room says, “Well, the city's going to have to pay that judgment.” And someone else in the jury room says, “Hey wait a minute, I'm a tax payer of the city of Louisville. I don't want to give a judgment that I'm going to have to pay because they're going to raise my taxes.” Do you see why I would be worried about that as the attorney representing the police officers on the SWAT team? This is a tough question. Tough. Are you going to write down a lower verdict because of the concern that your portion of the percentage of the verdict might come out of your pocket? It's okay to say yes. There are a lot of people who say, “Oh my god, I'm not paying that judgment.” But if you're going to say yes, I need to know because you might not be the right juror for this case. Think about it.

VR 7/19/22 beginning at 1:47:20.

Counsel then singled out a couple of potential jurors, both of whom said they would do what was right based on the evidence. No one else indicated they would have a problem paying any potential verdict because it might increase taxes or affect them as taxpayers. Nevertheless, Appellants now argue the verdict was rendered based upon the jury's fear of potential combined verdicts of over $150,000,000 and what that will do to taxes. Appellants are implicitly asserting the potential jurors were not honest in their voir dire responses and were swayed by the potential amount of combined verdicts should the SWAT Team be successful in their claims. “To obtain a new trial because of juror mendacity, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.” Adkins v. Commonwealth, 96 S.W.3d 779, 796 (Ky. 2003) (internal quotation marks and citations omitted). Appellants have provided no evidence whatsoever that jurors, as taxpayers, were dishonest in their voir dire responses and were swayed by a potentially large verdict despite answering otherwise.

Further, we cannot say the trial court abused its discretion by letting the jurors know the full extent of damages sought by all SWAT Team members, not just the six in front of them. As was pointed out by the trial judge, the case had been in the local news numerous times and she believed the jury deserved to know the full picture. However, other SWAT Team members’ names were redacted from trial exhibits, as well as the individual amounts they were seeking. The $150,000,000 came from an itemization of damages filed by Appellants in October 2020. It also helped to give context to the jury. On the one hand, SWAT1 argued extensively that Metro could not accept free labor (included in Jury Instruction No. 2, supra), yet on the other hand, every SWAT1 officer testified they would accept just 25% of what they claimed they are owed by Metro, which essentially amounts to Metro receiving free labor. Common sense would allow the jury to deduce that there were other present and former members of the SWAT Team with similar claims, not just the six that were before them.⁸ In closing arguments, SWAT1's counsel also referred to the large amount of money Metro owes to all SWAT Team members for time spent on-call. Specifically, she spoke in terms of the entire SWAT Team when she said they went to the Chief of Police and the union with a list of demands including more resources and officers before filing the lawsuit.⁹ Counsel also argued to the jury that Metro was able to balance its budget on the backs of the SWAT Team which, of course, indicates the SWAT Team believes they are owed extremely large sums of money for time spent on-call since the formation of the SWAT Team in 2001.¹⁰ Assuming Appellants stand by their claims and the amount they say they are owed, it is paradoxical that they then assert those claims are prejudicial. We discern no error.

Appellants next argue Metro impermissibly offered testimony and commentary on the financial impact to the city should the jury decide for SWAT1. Specifically, they point to the testimony of Deputy Mayor Ellen Hesen. However, Deputy Mayor Hesen was SWAT1's witness. Immediately upon calling her to the stand, SWAT1's counsel began to ask questions about Metro's budget, revenue, and overall financial situation. Counsel for SWAT1 was able to point out, through Deputy Mayor Hesen's testimony, that Metro received $636,000,000 in federal funds during the COVID-19 pandemic, and that $53,000,000 remained unallocated at the time of trial. Deputy Mayor Hesen did explain that the federal funds were for non-recurring costs and that employee compensation is a recurring cost and therefore ineligible for the federal funds. She also testified Metro had a budget surplus of approximately $25,000,000 from the prior year that carried over, and the Louisville Metro Police Department specifically received a $10,000,000 budget increase for the current fiscal year at the time of trial.

The implication of Deputy Mayor Hesen's testimony on direct examination was clear: Metro has millions of dollars in funds to pay any potential verdict in favor of SWAT1. It was therefore permissible for Metro to seek testimony from Deputy Mayor Hesen on cross-examination to allow her to explain in greater detail how funds are allocated and the potential result of paying $150,000,000 in damages to the SWAT Team members (i.e., raising taxes and cutting services).

SWAT1 also called Police Chief Erika Shields to testify regarding personnel policies for SWAT Team members and police department budget issues, including salaries. On cross-examination, Chief Shields commented to the jury that Metro was “spending your money.” SWAT1 objected to the comment and the trial court admonished the jury that they were to remember their oath to render a verdict based on the evidence and law and not how it would impact them. “[A]n admonition is usually sufficient to cure an erroneous admission of evidence, and there is a presumption that the jury will heed such an admonition.” Matthews v. Commonwealth, 163 S.W.3d 11, 17 (Ky. 2005) (footnotes omitted). An admonition is insufficient only if it “appears the argument was so prejudicial, under the circumstances of the case, that an admonition could not cure it.” Price v. Commonwealth, 59 S.W.3d 878, 881 (Ky. 2001) (citation omitted). The trial court's admonition in this instance was sufficient, particularly because it had been pointed out to the jurors multiple times that Metro was funded by tax dollars, including by SWAT1 during voir dire.

2. Evidence regarding pensions and salaries of SWAT Team Members

Appellants argue Metro again played to the passions of the jury by pointing out the “high” salaries and pension plans of SWAT Team members. A review of the entire trial shows mentions of salaries and pensions were meant to demonstrate SWAT Team members were already sufficiently compensated for any time spent on-call without a call out. See, e.g., testimony of Chief Shields VR 7/25/22 at 2:00:12. In other words, that their salaries and benefits were inclusive of all duties and that SWAT Team members were therefore not entitled to any additional compensation for time spent on-call. We again discern no abuse of discretion.

3. References to the pay practices of SWAT Teams in other states

Testimony at trial from former Chief of Police Steve Conrad revealed that after SWAT Team members made their unsuccessful demand for on-call pay and after filing the underlying lawsuit, he wanted to know if Metro was somehow different or lagging behind because it did not compensate its SWAT Team members for hours spent on-call when they were not actually called out. To that end, he instructed several officers to gather information about pay practices from SWAT Teams in other cities around the country. Officers spoke directly to twelve other departments on the telephone and gathered information from two other departments from the internet. The officers produced a report that indicated no other department they looked into paid their SWAT Team for simply being on-call without being called out. Further, former Chief Conrad and Chief Shields both testified that it was not the practice in the cities where they had previously been employed (former Chief Conrad in Glendale, Arizona, and Chief Shields in Atlanta, Georgia).

Chief Shields testified that, in her experience, which includes attending various events with police chiefs from all over the country, she never came across a police department that compensated SWAT Team members who were on-call and not called out. Appellants now argue introduction of the study was erroneous because it was irrelevant and hearsay. With regard to relevance, Appellants ignore the fact that they first introduced evidence regarding practices of other police departments for which SWAT1 members either had been or are currently employed (e.g., Officer Brent Routzahn testified regarding his current duties as a member of the SWAT Team in the city of St. Matthews, Kentucky in comparison to his time as a SWAT Team member in Louisville). We discern no abuse of discretion regarding relevance because the trial court allowed evidence of pay practices of other SWAT Teams.

Regarding hearsay, KRE ¹¹ 803(6) provides an exception for admission of hearsay evidence that consists of

[r]ecords of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

After extensive arguments outside the presence of the jury, the trial court went over the requirements of the rule with regard to the report and ruled it did qualify as a business record exception to the hearsay rule. Former Chief Conrad also testified that he requested the report be made and relied on it for his assessment of whether on-call pay was appropriate for SWAT Team members. Counsel for SWAT1 was able to present what they believed were the flaws of the report through extensive cross-examination of former Chief Conrad regarding the gathering, analysis, and dissemination of the information obtained from other police departments. We again discern no abuse of discretion.

4. Evidence regarding the CBA

Appellants argue the trial court erred by allowing the jury to view the entire CBA between Appellants and Metro, which included the procedure for filing grievances. They argue the jury should have been allowed to view only the portion of the CBA that says all officers are required to be paid overtime for all hours worked in excess of eight hours a day and 40 hours per week. To the extent the jury was allowed to learn of the grievance procedure through the CBA or testimony, it did not factor into the jury instructions as something for the jury to consider. The trial court believed the jury was entitled to see the full CBA, rather than a single provision cherry-picked by SWAT1. We discern no abuse of discretion.

5. Evidence that members chose to join the SWAT Team

Prior to trial, the trial court ruled Metro could not refer to SWAT Team members as “volunteers” due to SWAT1's argument that this implies they agreed to work without compensation. During the trial, however, testimony and argument established SWAT Team members “chose” to join or joined of their own “volition.” Appellants argue there is no difference and Metro still presented evidence and arguments that implied SWAT Team members agreed to work for free. In the context of the entire trial and all of the evidence and argument presented, Metro clearly was not, at any point, arguing SWAT Team members agreed to work for free. Rather, when testimony and argument pointed to the fact that SWAT1 members “chose” to join, it was that they understood the requirement of being on-call for roughly half of each month and they would get paid overtime only if they were called out and not for any time spent waiting to be called out. For Appellants to assert Metro argued to the jury that SWAT1 agreed to work for free is out of context and simply a bridge too far. There was no error.

C. Motions for Summary Judgment

We agree with the trial court that no party was entitled to summary judgment prior to the SWAT1 trial. Appellants also filed a renewed motion for summary judgment after the new judge granted SWAT1's motion for a new trial, but prior to entry of the second order which reversed course and denied the motion for a new trial. Upon denial of a new trial for SWAT1, SWAT2's motion became moot. However, they still argue they are entitled to summary judgment.

Generally, a denial of a motion for summary judgment is not appealable.

“The general rule under CR 56.03 is that a denial of a motion for summary judgment is, first, not appealable because of its interlocutory nature and, second, is not reviewable on appeal from a final judgment where the question is whether there exists a genuine issue of material fact.” Transp. Cabinet, Bureau of Highways, Commonwealth of Ky. v. Leneave, 751 S.W.2d 36, 37 (Ky. App. 1988); see Gumm v. Combs, 302 S.W.2d 616, 616–17 (Ky. 1957) (“An order denying a motion for summary judgment is not appealable.”). However, under an exception to this general rule, appellate review is proper if “(1) the facts are not in dispute, (2) the only basis of the ruling is a matter of law, (3) there is a denial of the motion, and (4) there is an entry of a final judgment with an appeal therefrom. Then, and only then, is the motion for summary judgment properly reviewable on appeal.” Leneave, 751 S.W.2d at 37; see also Gumm, 302 S.W.2d at 617.

Abbott v. Chesley, 413 S.W.3d 589, 602 (Ky. 2013).

We first turn to denial of Appellants’ motions for summary judgment. As explained supra, the issue is not whether Metro definitively told the officers in advance they may leave the job and will not have to commence work until a specified hour has arrived, but rather whether they were able to use the time spent on-call effectively for their own purpose. See 803 KAR 1:065 (now 803 KAR 1:067); Spellman, 574 S.W.2d at 343. Appellants continue to argue the facts show they could not use the time on-call effectively for their own purpose (See, e.g., Appellants’ Reply/Cross-Appellees’ Response Brief at 2–8 in No. 2024-CA-1174-MR), and Metro, of course, contends the facts show they could. The jury agreed with Metro. In other words, Appellants do not meet the exception for review of a denial of summary judgment. See Aiken, 190 F.3d at 760. Appellants also argue the evidence showed, as a matter of law, that SWAT1 was never “off duty” when on on-call status. The distinction between “off duty” and “on-call” has been sufficiently addressed supra, and summary judgment in favor of Appellants would be inappropriate on that basis. We also agree with the trial court that Appellants’ renewed motion for summary judgment is moot after denial of SWAT1's motion for a new trial.

Metro requests this Court address whether KRS 67C.400 et seq. prohibits a private right of action to enforce the CBA. This was the subject of the order denying Metro's motion for summary judgment regarding the contract claim, so Metro must show the exception applies in order for us to review the issue on appeal. There are no facts in dispute around the CBA; the only basis of the ruling is a matter of law; the trial court denied Metro's motion for summary judgment regarding the contract claim; and there is an entry of a final judgment with an appeal therefrom. Accordingly, we will review the denial of Metro's motion for summary judgment regarding the contract claim.

Metro claims only the FOP can bring litigation regarding the CBA. The trial court found Metro

cited no Kentucky law prohibiting [Appellants] from pursuing their common law breach of contract claims here. Indeed, the Grievance Procedure outlined in the parties’ agreement permissively provides that “any Member may file a grievance and shall be afforded the full protection of this Agreement ․” However, no provision of that contract makes it the exclusive remedy or otherwise abrogates the right to a jury trial.

Moreover, [Appellants] would necessarily have standing to litigate the issues in Court, as they are clearly third party beneficiaries to the agreement. See, e.g., Presnell Const. Managers, Inc. v. EH Const., L.L.C., 134 S.W.3d 575, 579 (Ky. 2004). Further, as a consolidated local government, and not an urban-county government, [Metro] cannot restrict individual employees from suing about alleged contract violations. KRS 67A.6908(3).[12] The [FOP] is certainly allowed to litigate pursuant to the permissive statutory language; and yet, the individual members also as certainly retain their rights, as no restrictive language to the contrary exists. Id.

Finally, [Metro has] presented no controlling authority establishing that [Appellants] must exhaust administrative remedies prior to filing suit. Even if such a requirement existed, here, [Appellants] could not meaningfully avail themselves of an alternate remedy because it could result in no more than an advisory, nonbinding arbitration.

See Order entered November 4, 2016.

We agree with the trial court's analysis. While filing a grievance was certainly an option for Appellants, Metro failed to prove it was the only option available under the CBA or the applicable statutes. Denial of Metro's motion for summary judgment was therefore appropriate.

D. Metro's Motion for Directed Verdict

On appellate review of denial of a motion for directed verdict, “we will reverse the trial court's ruling only if we find that the jury could not have reasonably reached its verdict on the basis of the evidence before it.” Belt v. Cincinnati Insurance Company, 664 S.W.3d 524, 530 (Ky. 2022) (internal quotation marks and footnote omitted). Obviously, this standard is inapplicable to the SWAT1 trial because the jury reached the same result Metro was seeking through directed verdict. However, given the ruling of this Court herein, and the unusual circumstance due to the election of a new judge shortly after the trial, we feel it is necessary to briefly address the issue.

In Spellman, supra, police officers sued the Jefferson County Fiscal Court, in part, for wages they say were owed for a period of approximately three and one-half weeks that they were required to be on-call. 574 S.W.2d at 342–43. At the time, being on-call meant that “the officers were required to be reachable by telephone and able to arrive at a police substation within 30 minutes if an emergency arose.” Id. The officers requested a jury trial, which was denied by the trial court. Id. On appeal, this Court held the trial court erred in not granting a jury trial, but that the error was harmless because

[e]ven if we accept appellants’ rendition of the facts most favorably to their argument, we must conclude that a directed verdict for the appellee would have been proper․ Appellants allege that there were discrepancies among individuals as to what limitations they were under. However, it is clear that the Police Chief only directed that the men be capable of being reached by telephone and be able to report to a police substation within 30 minutes. While these restrictions placed some limitations on the policemen, it should be noted that policemen are considered under duty to respond as policemen 24 hours a day. The position of police officer must be the individual's primary occupation. Even under normal circumstances, policemen have certain limitations placed upon them. We recognize that the order prevented some policemen from leaving the Louisville area on long breaks for recreational trips or second jobs, but we must nevertheless conclude that the order was not so restrictive as to require additional compensation under the statute or regulation.

Id. (emphasis added).

We recognize Appellants in the instant action have spent a much greater portion of their careers on-call than the officers in Spellman. However, we have now clarified that the correct standard is not whether SWAT Team members were told in advance that they may leave the job and that they would not have to commence work until a definitely specified hour has arrived, but rather, (1) whether the on-call assignment primarily benefited Metro; and (2) whether the on-call assignments were so restrictive SWAT Team members could not use their time effectively for their own purpose. The facts presented at trial simply do not support Appellants’ claims, and the verdict rendered was not “palpably or flagrantly against the evidence so as to indicate that it was reached as [the] result of passion or prejudice.” Lewis v. Bledsoe Surface Min. Co., 798 S.W.2d 459, 461–62 (Ky. 1990) (internal quotation marks and citation omitted). Had the jury ruled in favor of SWAT1, our analysis on the issue of a directed verdict would be very different. All of the SWAT Team members testified to holding secondary jobs that they worked while on-call for Metro at least some portion of the time. This fact alone is arguably enough to demonstrate SWAT Team members are able to use their time on-call effectively for their own purposes. SWAT1 produced no evidence whatsoever as to the frequency of call outs and no evidence that any officer was ever disciplined for not answering a call within five minutes or not arriving to a call out within 45 minutes, or that any officer was unable to meet the time requirements. SWAT Team members are given a vehicle to use while on-call that enables them to store their gear in the event of a call out. Officers did testify they would often drive separately from their families while on-call to be prepared in the event of a call out. While SWAT1 testified that family events, leisure activities, and sleep were disrupted by call outs at times, they failed to demonstrate their time was so restricted as to warrant additional compensation.

We also acknowledge there has been no fact-finding regarding the specific individuals in SWAT2; however, many of the same facts will apply to their cases (e.g., response times, secondary employment, etc.). SWAT2 is certainly not entitled to summary judgment on their claims as stated herein, but the litigants and trial court must keep in mind this Opinion when deciding how to proceed with the SWAT2 litigation as we are limited in our ability to rule at this point.¹³

IV. Conclusion

For the reasons stated herein, the Jefferson Circuit Court is affirmed in each appeal and cross-appeal presented to this Court, including the revised order denying SWAT1's motion for a new trial.

FOOTNOTES

1.   Kentucky Revised Statutes.

2.   Testimony at trial revealed SWAT Team members specifically requested the shift be from 9:00 a.m.–5:00 p.m.

3.   See Order entered November 27, 2023.

4.   See Order entered August 30, 2024, at page 2.

5.   Kentucky Administrative Regulations.

6.   Code of Federal Regulations.

7.   29 C.F.R. § 785.16(b) uses a different example of destination cities and times; however, such difference is immaterial to the thrust of the example.

8.   Testimony at trial indicated that since its formation in 2016, the full-time SWAT Team has approximately 20 members at any given time.

9.   VR 7/29/22 beginning at 10:20:50.

10.   VR 7/29/22: beginning at 10:18:15.

11.   Kentucky Rules of Evidence.

12.   KRS 67A.6908(3) provides that[s]uits for violation of agreements between an urban-county government and a labor organization representing police officers, firefighter personnel, firefighters, or corrections personnel may be brought by the parties to the agreement in the Circuit Court of the urban-county government.

13.   “Courts are not permitted to render advisory opinions.” Nordike v. Nordike, 231 S.W.3d 733, 739 (Ky. 2007) (citations omitted).

JONES, L., JUDGE:

ALL CONCUR.