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University of Louisville v. Harper

Court of Appeals of Kentucky

April 12, 2019

UNIVERSITY OF LOUISVILLE APPELLANT
v.
LAUREL HARPER AND MICHAEL A. AUGUSTUS APPELLEES AND LAUREL HARPER CROSS-APPELLANT
v.
UNIVERSITY OF LOUISVILLE CROSS-APPELLEE

          ON REMAND FROM SUPREME COURT (FILE NO. 2016-SC-000632-DG) APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE A.C. MCKAY CHAUVIN, JUDGE ACTION NO. 11-CI-005294

          BRIEFS FOR APPELLANT/CROSS- APPELLEE: Randall S. Strause Courtney L. Graham Louisville, Kentucky

          BRIEFS FOR APPELLEES/CROSS- APPELLANT: Michael A. Augustus Louisville, Kentucky

          BEFORE: ACREE, NICKELL, AND TAYLOR, JUDGES.

          OPINION AFFIRMING IN PART AND REVERSING IN PART

          ACREE, JUDGE.

         The University of Louisville appealed the Jefferson Circuit Court's November 15, 2013 judgment affirming the jury's verdict in favor of Laurel Harper and the award of damages with respect to her claim under the Kentucky Whistleblower Act, [1] as well as the March 20, 2014 opinion and order awarding Harper's attorney's fees and costs. Additionally, Harper cross-appealed the trial court's opinion and order denying her motion for front-pay damages.

         In an opinion rendered October 21, 2016, this Court reversed the verdict and judgment, and reversed the separate award of attorney fees in favor of Harper. After granting discretionary review, the Kentucky Supreme Court reversed this Court's opinion, reinstated the jury's verdict, and remanded the case to this Court to address issues raised in the original appeal that the Court did not resolve. Harper v. University of Louisville, 559 S.W.3d 796 (Ky. 2018). On remand, we affirm in part and reverse in part.

         PREVIOUSLY UNRESOLVED ISSUES

         The Supreme Court identified the specific unresolved issues as follows:

The University's appeal to the Court of Appeals raised other issues which, because of its disposition of the directed verdict issue, the Court of Appeals declined to address. Specifically, the University argued that the judgment of the trial court awarded excessive compensatory damages because Harper failed to mitigate her loss of income; that Harper was improperly allowed to recover damages for mental anguish she endured as a result of her whistleblower activity; that the trial court erred in awarding interest on the judgment against the University; and that the trial court erred by awarding excessive attorneys' fees to Harper. Harper, on the other hand, argued that these issues were not properly preserved for appellate review. Harper also argued that the trial court erred by denying her claim for front pay damages.
We defer our analysis of those issues and remand the matter to the Court of Appeals for resolution of the issues left unresolved.

Id. at 811-12. The Court now addresses each unresolved issue identified in the Supreme Court's opinion.

         (1) Whether the trial court awarded excessive compensatory damages because Harper failed to mitigate her loss of income

         Harper "directs our attention to the fact that [several] of the alleged . . . errors assigned by appellant[] were not preserved and no refutation is made by reply brief." Elwell v. Stone, 799 S.W.2d 46, 48 (Ky. App. 1990). As to this issue, we agree the University failed to identify whether and how it preserved the error.

         "It goes without saying that errors to be considered for appellate review must be precisely preserved and identified in the lower court." Skaggs v. Assad, By and Through Assad, 712 S.W.2d 947, 950 (Ky. 1986). A rule of appellate procedure, CR[2] 76.12(4)(c)(v), requires "at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner." CR 76.12(4)(c)(v). The University failed to comply with the rule. ...


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