ELLIS KEYES v. CLYDE HOGG

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Court of Appeals of Kentucky.

ELLIS KEYES v. CLYDE HOGG

NO. 2009-CA-002016-MR

Decided: July 16, 2010

BEFORE:  CAPERTON, THOMPSON, AND VANMETER, JUDGES. BRIEFS FOR APPELLANT:  Ellis Keyes, Pro Se Whitesburg, Kentucky BRIEF FOR APPELLEE:  James W. Craft, II Whitesburg, Kentucky

The Appellant, Ellis Keyes, appeals the September 29, 2009, order of proceedings and judgment entered by the Letcher Circuit Court, following a jury trial during which the court granted a directed verdict and dismissed the case against the Appellee, Clyde Hogg Jr., with prejudice.   Having reviewed the record, the applicable law, and the arguments of the parties, we affirm.

Hogg entered into a contract with Christine Keyes, the mother of Ellis Keyes.   Thereafter, Hogg and Kanaan Mining Company, Inc. leased the property belonging to Christine Keyes for the coal referred to in the lease.   Subsequently, Ellis Keyes obtained power of attorney from his mother, and initiated this civil suit in 2006, claiming that Hogg had breached his contract as to the payment of royalties to Christine Keyes for the coal that had been removed from the land.   During the course of the deposition of Ellis Keyes, it was determined that the only issue at hand concerned the royalties for the coal.

Following the commencement of a jury trial, Keyes again announced in chambers that his claim related only to royalties for the amount of coal mined, for which he claimed royalties had not been paid. Double During the course of the trial, Keyes produced no evidence as to how much coal had been mined, or as to how much he and his mother had received in royalties.   Thereafter, the court granted a directed verdict at the close of Keyes's case-in-chief.

On appeal, Keyes asserts that the trial court erred in granting Hogg's motion for directed verdict.   He argues that Hogg and Kanaan Mining breached the contract by failing to provide records in accordance with their agreement. Double He also argues that coal mining was well-understood by the jury pool, and as a result, expert professional testimony was not needed as to the amount of coal that had been mined.   Keyes also argues that Kanaan Mining failed to comply with the court's order compelling discovery, and that this prevented him from establishing the exact amount of royalties that he was owed.   Specifically, Keyes directs this Court to Interrogatory No. 3, which read as follows:

Interrogatory No. 3:  How much royalties were paid and to who, for the coal mined out of Loves Branch from 1997 until now?   Please show receipts for total tonnage of coal sold and of royalty payments therefore.

Answer:  This information is currently being researched by the bookkeeper for Kannan Mining and will be provided when it is available.

Keyes states that the information was ultimately never provided, although Hogg later filed a second answer to this particular interrogatory informing Keyes as to where he could access that information.   Hogg's second response to the interrogatory stated:  “Access to these records is on the lease submitted to show Christine Cook-Keyes, they are in that office.”

Keyes found this answer to be insufficient, and filed a motion for sanctions and to compel discovery, requesting that Hogg be compelled to supply more specific answers, including to the aforementioned interrogatory.   A hearing was held on that motion on September 14, 2006.   The court subsequently entered a September 21, 2006, order denying Keyes's motion to compel and for sanctions, as well as a subsequent December 4, 2006, order, again indicating its opinion that the answers to the interrogatories were sufficient, and sanctions were not warranted. Double

Keyes then filed a December 28, 2006, “Notice and Motion to Amend Order,” again asserting that Hogg failed to adequately answer Interrogatory Three, by not specifically stating how much was paid in royalties, and to whom.   Further, Keyes stated that during the course of the September 14, 2006, hearing the court agreed that Interrogatory Three needed a more clear answer, but nevertheless subsequently overruled his motion.   That motion was also overruled by the court, on March 9, 2007.

As noted, trial was ultimately held in September of 2009, and a directed verdict was granted in favor of Hogg at the close of the presentation of evidence.   An order of dismissal was thereafter entered on September 29, 2009.   It is from that order that Keyes now appeals to this Court.

In reviewing the arguments of the parties, we note first that on a motion for directed verdict, the trial judge must draw all fair and reasonable inferences from the evidence in favor of the party opposing the motion.   When engaging in appellate review of a ruling on a motion for directed verdict, the reviewing court must ascribe to the evidence all reasonable inferences and deductions which support the claim of the prevailing party.  Meyers v. Chapman Printing Co., 840 S.W.2d 814 (Ky.1992).   Once the issue is squarely presented to the trial judge, who heard and considered the evidence, a reviewing court cannot substitute its judgment for that of the trial judge unless the trial judge is clearly erroneous.  Davis v. Graviss, 672 S.W.2d 928 (Ky.1984).

We review this matter with that standard in mind, and having done so, we conclude that the trial court properly sustained Hogg's motion for directed verdict.   It is the general rule of law in this Commonwealth that untrained persons may not give opinion evidence touching on matters requiring specific expertise and training.   See Commonwealth,, Dept. of Highways. v. Watson, et.al., 446 S.W.2d 294 (Ky.1969).   While we acknowledge Keyes's emphasis on the fact that Watson actually found the general rule to be inapplicable to the facts of that case, we do not believe the situation in Watson to be the same as those in the matter sub judice.

Keyes argues that the jury members in this instance would be familiar with coal mining procedures, and that accordingly, no expert testimony was needed.   We disagree.   Coal mining is a technical and detailed undertaking that we cannot assume would be readily understood by a layperson, with no experience in the industry.   Certainly, we are unaware of the expertise and training of each member of the jury panel in this matter.   Accordingly, we cannot find that these matters were such as would be easily understood by a jury absent the testimony of an expert.

Our review of the record reveals that Keyes simply did not present any evidence below which would establish that Kanaan Mining mined more coal from his mother's than for which royalties were paid.   Keyes asserts, and Kanaan concedes, that 544,323.75 tons were mined,Double but this alone does not establish that royalties which were due were withheld.

In his brief, Keyes refers this Court to “Appendix E”, which he states establishes damages flowing from breach of contract, including timber and fifty cents per ton of coal removed from the property.   While this provision does establish that Kanaan Mining agreed to pay Keyes fifty cents per ton, it does not provide any information as to the critical issue of how much coal was actually mined and for which royalties were not paid.   Indeed, our review of the record reveals that Keyes isolated royalties as the issue in dispute, and yet provided no information or expert testimony as to exactly how much coal was mined from his property, or the amount of royalties received or not received with regard thereto.   Accordingly, we simply cannot find that the judgment of the trial court in granting the motion for directed verdict was clearly erroneous, and we decline to substitute our judgment for same.

Wherefore, for the foregoing reasons, we hereby affirm the September 29, 2009, order of proceedings and judgment entered by the Letcher Circuit Court, granting a directed verdict on behalf of Hogg.

VANMETER, JUDGE, CONCURS.

THOMPSON, JUDGE, CONCURS IN RESULT AND FILES SEPARATE OPINION.

THOMPSON, JUDGE, CONCURRING:  I concur in result only because I believe that the trial court should have compelled discovery of the documents pertaining to the receipts for total tonnage of coal sold and the royalty payments received.   The “answers” to Keyes's properly propounded discovery gave absolutely no information that would aid Keyes in preparing for trial and it was the lack of the very same information sought that led to the directed verdict in the case.   The discovery requested should have been compelled by the trial court.

However, I concur in the result reached because Keyes failed to depose or subpoena the record keeper.   As such, the trial court's refusal to compel discovery was harmless error.

CAPERTON, JUDGE: