Reset A A Font size: Print

Court of Appeals of Kentucky.


NO. 2010-CA-000211-MR

Decided: March 04, 2011

BEFORE:  TAYLOR, CHIEF JUDGE;  DIXON, JUDGE;  ISAAC, Double SENIOR JUDGE. BRIEFS FOR APPELLANTS:  Richard V. Hornung Louisville, Kentucky BRIEF FOR APPELLEE:  Robert L. Heleringer Louisville, Kentucky



James and Marianna Wehrley appeal a judgment rendered by the Jefferson Circuit Court following a jury trial.   Finding no error, we affirm.

In July 2001, the parties executed a real estate sales contract wherein the Kroons Double agreed to purchase a home constructed and owned by the Wehrleys in Fisherville, Kentucky.   Following the finalization of the sale, the Kroons began noticing problems in the construction of the house.   In January 2008, the Kroons filed a complaint in Jefferson Circuit Court alleging the Wehrleys fraudulently misrepresented details regarding the quality and workmanship of the construction.   A jury trial was held in December 2009, and the jury returned a verdict in favor of the Kroons, awarding damages of $20,000.

On appeal, the Wehrleys do not challenge the jury's verdict as being against the weight of the evidence;  rather, they challenge various evidentiary and procedural rulings by the trial court.  “Our standard of review in matters involving a trial court's rulings on evidentiary issues and discovery disputes is abuse of discretion.”  Manus, Inc. v. Terry Maxedon Hauling, Inc., 191 S.W.3d 4, 8 (Ky.App.2006).  “The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”  Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky.2000).

I. Pre-Trial Motions

The Wehrleys assert the court abused its discretion by denying their motion for a continuance on November 30, 2009, two weeks prior to trial.   The record on appeal does not include the video recording of the hearing where this motion was addressed.   The Wehrleys' brief indicates they needed additional time for discovery, while the Kroons opine that the Wehrleys failed to abide by the trial court's discovery deadlines.   While we do not have the benefit of reviewing the hearing, we are mindful of the discretion enjoyed by the trial court in deciding whether to grant or deny a continuance.  Wells v. Salyer, 452 S.W.2d 392, 395-96 (Ky.1970).   In this case, the record clearly indicates that the Wehrleys failed to follow the discovery procedures and deadlines delineated in the court's May 2009 trial order.   Given the record before us, we find no abuse of discretion.

Next, the Wehrleys complain that the court abused its discretion by excluding the testimony of their expert witness, Ralph Wirth.   Pursuant to the court's trial order, the Wehrleys' expert witness list was due on September 1, 2009.   The record indicates that the Wehrleys submitted their witness list on December 3, 2009.   As a result of this delay, the trial court granted the Kroons' motion in limine to exclude Wirth as an expert witness.

It is axiomatic that compliance with the Kentucky Rules of Civil Procedure is necessary for efficient and effective litigation in our courts.  Naive v. Jones, 353 S.W.2d 365, 367 (Ky.1961).   Trial courts have broad discretion in enforcing the civil rules, and this Court will not disturb a lower court's ruling unless there was an abuse of discretion.  Id. In granting the Kroons' motion in limine, the trial court noted the Wehrleys' conduct constituted a “wholesale disregard” of the court's order establishing discovery deadlines.   Under the facts presented here, we are not persuaded the court abused its discretion by excluding Wirth's testimony as a sanction for the Wehrleys' non-compliance with the court's order.

Third, the Wehrleys contend the court abused its discretion by denying their motion to access the Kroons' property for an inspection.   The Wehrleys' brief indicates this issue was raised on December 7 and December 14, 2009.   Neither of these hearings are in the record on appeal, but it appears that the Wehrleys sought to inspect the Kroons' property - for the first time - just days before trial.   In light of the record before us, we cannot say the court abused its discretion in denying the Wehrleys' motion.

II. Trial Motions

During the course of Mr. Kroon's trial testimony, he acknowledged receiving a letter from Joe Cattan, an engineer who inspected the property for storm-related damage.   The Wehrleys moved to dismiss the case based on Mr. Kroon's admission, as the Wehrleys had long-argued that Mr. Kroon intentionally withheld the Cattan letter. Double Counsel for the Kroons advised the court that he had disclosed all discovery to the Wehrleys, that he did not have the Cattan letter, and that Mr. Kroon was confused.   The trial court denied the motion to dismiss and noted that the Wehrleys were planning to call Cattan as a rebuttal witness, which would cure the alleged prejudice.   We find no abuse of discretion.

At the close of the case, the Wehrleys moved to dismiss Mrs. Kroon as a party to the lawsuit because the evidence established that she did not sign the real estate sales contract.   The court denied the motion, noting that the evidence showed Mrs. Kroon, who was named on the mortgage and deed, had been injured by the Wehrleys' fraudulent misrepresentations regarding the construction of the house.   We find no abuse of discretion.

The Wehrleys next argue that they were entitled to a directed verdict because the evidence established that the lawsuit was barred by the applicable statute of limitations. Double For a cause of action based on fraud, KRS 413.120(12) provides a five-year limitations period from the time the fraud was discovered.  Hernandez v. Daniel, 471 S.W.2d 25, 26 (Ky.1971).   The Wehrleys assert that the Kroons began noticing defects in August 2002;  accordingly, the Kroons were obligated to file suit by August 2007.

The standard of review regarding a directed verdict is as follows:

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.   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.

Bierman v. Klapheke, 967 S.W.2d 16, 18 (Ky.1998) (internal citation omitted).

In the case at bar, the testimony showed that the Kroons were unaware the Wehrleys' representations regarding the house were fraudulent until the Kroons commissioned a structural report from an engineer, Glenn Wilson, in September 2003.   The record shows that the Kroons filed suit in January 2008, within the five-year limitations period.   We find no abuse of discretion in the court's denial of a directed verdict.

Finally, the Wehrleys contest the jury instructions given by the trial court.   The Wehrleys contend the court was obligated to “separate out” each construction defect in the instructions so the jury could apportion damages for windows, bricks, roof, etc.   The Wehrleys have not cited any authority to support their theory.

Alleged errors regarding jury instructions are reviewed by this Court de novo.  Peters v. Wooten, 297 S.W.3d 55, 64 (Ky.App.2009) (citation omitted).   We are mindful that “Kentucky's approach to jury instructions is that ‘they should provide only the bare bones, which can be fleshed out by counsel in their closing arguments if they so desire.’ ”  Id., quoting Cox v. Cooper, 510 S.W.2d 530, 535 (Ky.1974).   After thorough review, we find no error in the court's jury instructions.

For the reasons stated herein, we affirm the judgment of the Jefferson Circuit Court.