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
FOR APPELLANT/CROSS- APPELLEE: Randall S. Strause Courtney L.
Graham Louisville, Kentucky
FOR APPELLEES/CROSS- APPELLANT: Michael A. Augustus
BEFORE: ACREE, NICKELL, AND TAYLOR, JUDGES.
OPINION AFFIRMING IN PART AND REVERSING IN
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,  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.
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.
Supreme Court identified the specific unresolved issues as
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
We defer our analysis of those issues and remand the matter
to the Court of Appeals for resolution of the issues left
Id. at 811-12. The Court now addresses each
unresolved issue identified in the Supreme Court's
Whether the trial court awarded excessive compensatory
damages because Harper failed to mitigate her loss of
"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.
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 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. ...