STEPHEN L. CHERRY v. FRANK AUGUSTUS, SHERIFF OF McCRACKEN COUNTY, KENTUCKY, AND McCRACKEN COUNTY DEPUTY SHERIFF MERIT BOARD and FRANK AUGUSTUS, SHERIFF OF McCRACKEN COUNTY, KENTUCKY v. STEPHEN L. CHERRY AND McCRACKEN COUNTY DEPUTY SHERIFF MERIT BOARD
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July 7, 2006; 10:00 A.M.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001496-MR
STEPHEN L. CHERRY
v.
APPELLANT
APPEAL FROM McCRACKEN CIRCUIT COURT
HONORABLE TOMMY W. CHANDLER, SPECIAL JUDGE
CIVIL ACTION NO. 01-CI-00370
FRANK AUGUSTUS, SHERIFF OF
McCRACKEN COUNTY, KENTUCKY,
AND McCRACKEN COUNTY
DEPUTY SHERIFF MERIT BOARD
AND
APPELLEES
NO. 2004-CA-001730-MR
FRANK AUGUSTUS, SHERIFF OF
McCRACKEN COUNTY, KENTUCKY
v.
CROSS-APPELLANT
CROSS-APPEAL FROM McCRACKEN CIRCUIT COURT
HONORABLE TOMMY W. CHANDLER, SPECIAL JUDGE
CIVIL ACTION NO. 01-CI-00370
STEPHEN L. CHERRY
AND McCRACKEN COUNTY
DEPUTY SHERIFF MERIT BOARD
CROSS-APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER AND MINTON, JUDGES; HUDDLESTON, SENIOR JUDGE.1
MINTON, JUDGE:
This opinion concerns an appeal and cross-appeal
from a circuit court action to enforce an order of the McCracken
County Deputy Sheriff Merit Board (“the Board”), which called
for Stephen L. Cherry to be reinstated as deputy sheriff with
full back pay retroactive to his termination date.
The circuit
court’s final judgment and order mandated Cherry’s reinstatement
under the Board’s order and awarded him $7,710.79 in back pay,
plus court costs.
Cherry contends on appeal that he was entitled to more
back pay, more damages, attorney’s fees, and post-judgment
interest.
Frank Augustus, Sheriff of McCracken County,
Kentucky, cross-appeals, arguing essentially that the circuit
court should have dismissed the case from the outset.
Finding that no error or abuse of discretion occurred,
we affirm on the appeal and cross-appeal.
I.
A.
HISTORY.
Cherry’s Termination.
After receiving a citizen’s complaint regarding Deputy
Cherry, Sheriff Augustus suspended him, with pay, in May 1995
pending the results of an internal investigation.
1
The
Senior Judge Joseph R. Huddleston sitting as Special Judge by
assignment of the Chief Justice pursuant to Section 110(5)(b) of the
Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.
-2-
investigation revealed numerous acts of misconduct allegedly
committed by Cherry between November 1994 and June 1995:
lack
of courtesy, profanity, two charges of insubordination, and
three charges of use of excessive or unnecessary force.
After
notifying Cherry of the charges and the specific details of each
alleged incident, Sheriff Augustus discharged Cherry on June 5,
1995.
B.
Administrative Proceedings.
Following Cherry’s request, the Board conducted an
evidentiary hearing at which Cherry was represented by counsel.
The resulting Board order stated that “the evidence introduced
at the hearing was insufficient to support the disciplinary
action and the dismissal of Deputy Cherry by Sheriff
Augustus[.]”
Further, the order commanded Sheriff Augustus to
“immediately reinstate Stephen L. Cherry to his former position
of deputy sheriff of McCracken County with full [back pay], all
retroactive to June 5, 1995.”
C.
Judicial Review of the Board’s Order.
Sheriff Augustus then appealed the Board’s order in
the circuit court.
Cherry later filed a cross-appeal.
On
April 18, 1997, the circuit court set aside the Board’s order
and reinstated Cherry’s termination on the grounds that the
Board’s enabling legislation, KRS 70.260 through 70.273, was
unconstitutionally vague, overly broad, and in violation of the
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Kentucky Constitution.
For our purposes, we will refer to this
circuit court appeal, Frank Augustus, Sheriff of McCracken
County, Kentucky v. Stephen L. Cherry and McCracken County
Deputy Sheriff Merit Board, as Augustus.
Cherry filed a timely appeal of the circuit court’s
order.
A panel of this Court issued an opinion on January 29,
1999, which vacated the circuit court’s judgment of April 18,
1997, for lack of jurisdiction and remanded the case for
reinstatement of the Board’s order of September 12, 1995.2
We
held that Sheriff Augustus never triggered the subject matter
jurisdiction of the circuit court because he filed an appeal
rather than a complaint in an original action seeking judicial
review of an administrative order as is required by
KRS 23A.010(4).
The Kentucky Supreme Court granted discretionary
review of Augustus.3
Because the vote of the six participating
justices was equally divided, the Supreme Court affirmed this
Court’s opinion under Supreme Court Rule 1.020(1)(a).
In
February 2001, the circuit court entered an order reinstating
the Board’s order; but Sheriff Augustus continued to deny Cherry
reinstatement or back pay.
2
Case No. 1997-CA-001297-MR.
3
Case No. 1999-SC-000142-DG.
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C.
Present Action to Enforce Board’s Order.
On April 2, 2001, Cherry instituted a separate action
in the circuit court to enforce the Board’s order.
This
enforcement action is the case now before us.
Cherry and Sheriff Augustus both filed motions for a
judgment on the pleadings or, in the alternative, summary
judgment.
The circuit court granted judgment on the pleadings
in Cherry’s favor on the issues of his entitlement to
restitution and to an unspecified amount of back pay.
left numerous other issues in the case unresolved.
The order
The circuit
court denied Sheriff Augustus’s motion for reconsideration of
the judgment on the pleadings and findings of fact.
The court
also denied Cherry’s motion seeking punitive damages and
attorney’s fees.
Cherry then filed a motion for leave to file
an amended complaint, which added claims for loss of opportunity
to pursue his chosen career in law enforcement and punitive
damages.
Ultimately, the circuit court entered its final
judgment and order, which incorporated and finalized the earlier
judgment on the pleadings and the order denying Cherry’s claims
for punitive damages and attorney’s fees.
The circuit court
denied Cherry’s motions for reconsideration of the earlier order
and for leave to amend the complaint.
The circuit court ordered
that Cherry receive $7,710.79 in back pay and be reinstated
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under the Board’s order; but it denied Cherry any other relief,
except taxable costs.
Cherry appealed to this Court naming Sheriff Augustus
and the Board as appellees.
Sheriff Augustus cross-appealed
naming Cherry and the Board as cross-appellees.
II.
ISSUES ON CHERRY’S APPEAL.
Cherry asserts that the circuit court committed the
following errors:
(1) awarding him only nominal damages for a
violation of his constitutional rights, (2) applying the
doctrine of mitigation of damages to his award of back pay,
(3) denying him attorney’s fees, (4) denying him damages for the
lost opportunity to engage in his chosen profession of law
enforcement, (5) denying his claim for punitive damages,
(6) denying his motion to amend the final judgment and order to
include post-judgment interest, and (7) denying his motion to
expunge his personnel file of any reference to his being
terminated for misconduct.
III.
ISSUES ON SHERIFF AUGUSTUS’S CROSS-APPEAL.
Sheriff Augustus asserts that the circuit court
committed the following errors:
(1) failing to find that
Cherry’s enforcement action is barred by the statute of
limitations, (2) failing to dismiss Cherry’s enforcement action
as barred by laches, (3) applying the doctrine of mitigation of
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damages to Cherry’s back pay award on an annual basis rather
than an aggregate basis, and (4) refusing to consider a number
of his claims in the enforcement action on the on the grounds of
res judicata.
Specifically, Sheriff Augustus raises before us
the following claims, which the circuit court deemed barred by
res judicata:
(a) the Board was unconstitutionally biased,
(b) the Board exceeded its statutory powers, (c) the Board’s
decision was arbitrary because its order contained no findings
of fact, (d) the Board’s decision was arbitrary because it was
not supported by substantial evidence, (e) reinstating Cherry
would violate KRS 61.300(4) because he has been convicted of a
crime of moral turpitude barring him from serving, (f) the back
pay award violates Section 3 of the Kentucky Constitution that
allegedly prohibits Cherry from receiving compensation for any
period of time he did not actually work, and (g) the doctrines
of official immunity and governmental immunity preclude any back
pay award for Cherry.
IV.
ANALYSIS OF ISSUES RAISED ON CROSS-APPEAL.
We address first the issues raised by Sheriff Augustus
on cross-appeal because several of these issues are potentially
dispositive of Cherry’s direct appeal.
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A.
Statute of Limitations.
Sheriff Augustus asserts that Cherry’s action to
enforce the Board’s order is barred because it falls outside the
five-year statute of limitations.
No specific statute of
limitations is provided by the statutes creating the Board.
KRS 413.120(2) sets forth a default five-year limitations period
for “[a]n action upon a liability created by statute, when no
other time is fixed by the statute creating the liability.”
This statute has been applied to actions to enforce the order of
an administrative agency where the enabling legislation does not
specify any other limitations period.4
So we agree with Sheriff
Augustus that the five-year limitations period in KRS 413.120(2)
applies to this enforcement action.
Cherry filed this enforcement action on April 2, 2001,
over five and a half years after the Board’s order was issued.
But he asserts that the action is not time-barred because the
running of the limitations period was tolled from September 22,
1995, when Sheriff Augustus filed his abortive appeal of the
Board’s order in Augustus, until August 24, 2000, when the
Supreme Court affirmed our opinion vacating the circuit court’s
order.
4
Because Augustus was ultimately vacated for lack of
See Whittaker v. Brock, 80 S.W.3d 428, 431 (Ky. 2002) (holding that
KRS 413.120(2) is applicable to an action to enforce an award of
workers’ compensation benefits.).
-8-
jurisdiction, Sheriff Augustus argues that its filing could have
no effect on the running of the limitations period.
The statutes creating the Board do not say what effect
a pending motion for judicial review has on a final order of the
Board.
But, “[i]n the absence of a statute providing otherwise,
the institution of proceedings to review an order of an
administrative agency does not operate as a stay of further
proceedings before the agency, and the grant of a stay rests in
the sound discretion of the reviewing court.”5
We find this
general rule applicable to any proceedings to review an order of
the Board.
So we hold that the filing of Augustus did not
automatically toll the running of the statute of limitations.
And Sheriff Augustus never sought a stay to prevent the
immediate enforcement of the Board’s order.6
The running of the statute of limitations for the
enforcement action was tolled temporarily, however, by the
circuit court’s order in Augustus, which set aside the Board’s
order on constitutional grounds.
The circuit court’s order had
the effect of rendering the Board’s order a nullity.
So, from
April 18, 1997, when the circuit court’s order was entered,
5
73A C.J.S. Public Administrative Law and Procedure § 344 (2005).
6
However, during the litigation of Augustus, Cherry filed a motion
for a temporary injunction seeking to be reinstated immediately and
allowed to participate in certain law enforcement training pending
the outcome of the case. The circuit court granted this temporary
injunction, but Cherry was actually never reinstated.
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until January 29, 1999,7 when we vacated the circuit court’s
order, there was no valid order of the Board that Cherry could
have enforced.
The fact that the circuit court’s order was
ultimately vacated for lack of jurisdiction does not change the
effect that the order had at the time it was entered.
When we
exclude this period of over twenty-one months, it is clear that
Cherry filed the enforcement action within the five-year
limitations period.
B.
Laches.
Sheriff Augustus alternatively asserts that Cherry’s
claims for reinstatement and back pay are barred by the doctrine
of laches.
In support, he cites Newland v. City of Richmond8 in
which a federal district court in Kentucky held that a former
police chief’s claim for reinstatement and back salary, which
were first raised more than four years after he was terminated,
were barred by the doctrine of laches.
The court stated that
“[t]he public interest requires that a public officer who has
been wrongfully removed from office exercise a special diligence
7
We need not decide exactly when the limitations period began running
again. Even using the earliest possible time⎯when this Court
vacated the circuit court’s order⎯Cherry’s enforcement action is
not time-barred.
8
293 F.Supp. 862 (E.D. Ky. 1968).
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in seeking restoration.
The doctrine of laches must be strictly
applied against him.”9
Even if we assume that Newland accurately describes
the law of Kentucky, we do not find Cherry’s claims for
restitution and back pay to be barred by laches.
The doctrine
of laches prohibits claims in circumstances where a party
engages in unreasonable delay to the prejudice of others
rendering it inequitable to allow that party to reverse a
previous course of action.10
As an equitable doctrine, its
application is directed to the court’s discretion based on the
unique circumstances of the case.11
While he might not have filed this enforcement action
at the first available opportunity, Cherry did not delay four
years before seeking restitution and back pay unlike the
plaintiff in Newland.
Cherry was awarded the right to back pay
and reinstatement by the Board in 1995, and he has pursued those
remedies at every stage of these protracted proceedings.
We
fail to see how Sheriff Augustus was prejudiced since the delay
in Cherry’s being reinstated and receiving back pay is
attributable to Sheriff Augustus’s recalcitrance, not to
9
Id. at 863.
10
Plaza Condominium Association, Inc. v. Wellington Corp., 920 S.W.2d
51, 54 (Ky. 1996).
11
American Wire-Nail Co. v. Bayless, 91 Ky. 94, 15 S.W. 10, 12 (1891);
45C AM.JUR.2D Job Discrimination § 1968 (2002).
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Cherry’s slackness.
We find no abuse of discretion in the
circuit court’s conclusion that Cherry’s enforcement action was
not barred by the doctrine of laches.
C.
Claims Barred by Res Judicata.
As noted above, the circuit court refused to consider
the merits of a number of Sheriff Augustus’s claims in the
enforcement action on the grounds that they were collateral
attacks on the Board’s order and barred by res judicata.
Sheriff Augustus now seeks to have this Court address each claim
on its merits.
But we agree with the circuit court’s
application of res judicata to these claims, specifically, the
doctrine of claim preclusion.
Sheriff Augustus seeks to avoid the effect of issue
preclusion or claim preclusion by pointing out that there was no
resolution on the merits of any of these claims because Augustus
was ultimately decided on jurisdictional grounds.
But claim
preclusion does not require a resolution on the merits.
Rather,
the relevant question is whether these claims should have been
raised in an earlier proceeding.
Sheriff Augustus also seeks to justify his various
attempts at collateral attack of the Board’s order by relying on
Department of Conservation v. Sowders12 in which Kentucky’s
12
244 S.W.2d 464 (Ky. 1951).
-12-
highest court held that collateral attack was permissible to
raise a constitutional error in an administrative agency’s
decision.
But Sowders is distinguishable from the instant case.
First, Sowders involved a facial constitutional error.
And by
his own admission, Sheriff Augustus has abandoned any facial
constitutional challenges.
Second, under the law existing when
Sowders was decided, there was no possibility for judicial
review of the administrative agency’s decision.
But the version
of KRS 70.273(4) in place in 1995 grants the right to judicial
review of the Board’s decision.
Sheriff Augustus argues that he had no effective right
of judicial review because his attempt to seek judicial review
of the Board’s order in Augustus was ultimately vacated for lack
of jurisdiction.
But this argument ignores the existence of our
saving statute, KRS 413.270.
KRS 413.270(1) grants a party who
mistakenly, but in good faith, filed an action in a Kentucky
court, which lacks jurisdiction over the action, ninety days
from the date of the judgment dismissing the action in which to
file a new action in the proper court.
Moreover, under
KRS 413.270(1), “[t]he time between the commencement of the
first and last action shall not be counted in applying any
statute of limitation.”
And KRS 413.270(1) applies to original
actions seeking judicial review of a final order of an
-13-
administrative agency.13
When an appeal is taken from the order
or judgment determining that there is no jurisdiction, the
ninety days begins to run upon the final ruling of the appellate
court that ultimately determines the disputed issue of
jurisdiction.14
So, based on the saving statute, Sheriff Augustus had
ninety days from the Supreme Court’s August 4, 2000, opinion
affirming our dismissal of Augustus during which to file an
original action seeking judicial review of the Board’s order;
but he did not do so.
Accordingly, he may not now collaterally
attack the Board’s decision in this enforcement action on the
grounds that he had no avenue of judicial review.
In sum, because we find that the doctrine of claim
preclusion bars any claims which Sheriff Augustus could have
raised earlier in an original action seeking judicial review of
the Board’s order, we must analyze each of the claims the trial
court refused to consider on the merits to see if Sheriff
Augustus should have raised that claim in an earlier action.
We
have examined the factual basis for each of the claims raised by
Sheriff Augustus that the circuit court deemed barred by res
judicata.
We find that in every instance, Sheriff Augustus
knew, or should have known, of the underlying facts in time to
13
See Jent v. Commonwealth, Natural Resources and Environmental
Protection Cabinet, 862 S.W.2d 318, 320-321 (Ky. 1993).
14
See Ockerman v. Wise, 274 S.W.2d 385, 388 (Ky. 1955).
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pursue the claim in a timely petition for judicial review of the
Board’s order.
Thus, Sheriff Augustus is barred by the doctrine
of claim preclusion from raising them in the instant enforcement
action.
D.
Mitigation of Damages Calculated on Annual Basis.
Sheriff Augustus asserts that the circuit court
applied the doctrine of mitigation of damages incorrectly to
Cherry’s back pay award by calculating it on an annual basis
rather than an aggregate basis.
Evidence was presented to the
circuit court showing that Cherry earned the following wages
from 1995 through 2001:
1995
1996
1997
1998
1999
2000
2001
$21,842
$36,992
$39,824
$59,860
$59,221
$61,328
$66,636
Conflicting evidence was also presented regarding how much
Cherry would have earned in 1995 if he had continued to be
employed as a deputy sheriff.
The circuit court made no
specific findings of fact regarding how much money Cherry would
have earned each year from 1995 through 2001 if he had continued
to be employed as a deputy sheriff, nor how much money Cherry
actually earned each year from 1995 through 2001.
But the
circuit court found that Cherry earned $7,710.79 less in 1995
than he would have earned if he had continued to be employed as
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a deputy sheriff.
The court also found that in each following
year through 2001 Cherry earned more in his alternate employment
than he would have if he had remained a deputy sheriff.
Based
on the doctrine of mitigation of damages, the circuit court
found that Cherry was entitled to only $7,710.79 in back pay.
Sheriff Augustus agrees that the doctrine of
mitigation of damages was applicable to the back pay award, but
he argues that the circuit court erred in considering the wages
on an annual basis rather than in the aggregate.
And he asserts
that the court should have looked at the total wages Cherry
earned from 1995 and compared this to the total wages that he
would have earned during the same time period if he had
continued as a deputy sheriff.
Sheriff Augustus asserts that if
the circuit court had applied the doctrine of mitigation of
damages in the aggregate rather than year-by-year, it would have
found that Cherry earned more in his alternate employment than
he could have earned as a deputy sheriff.
So, Sheriff Augustus
contends, the court would have awarded Cherry no money for back
pay because he suffered no damages.
For purposes of this argument, we accept as true
Sheriff Augustus’s assertion that if the circuit court had
calculated Cherry’s wages on an aggregate basis rather than an
annual basis when applying the doctrine of mitigation of
damages, Cherry would have not have been entitled to receive any
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money for back pay.
But we disagree with Sheriff Augustus’s
assertion that the circuit court’s method of calculating
mitigation of damages was arbitrary and contrary to the
precedent in Kentucky.
There are no published cases involving an award of
back pay by any board established under KRS 70.260 through
KRS 70.273.
In those cases where Kentucky’s highest court has
applied the doctrine of mitigation of damages to an award of
back pay, the Court has stated simply that the plaintiff “cannot
recover more than the difference between the contract wages or
salary and the amount he earned or could have earned with
reasonable diligence.”15
Whether this calculation should be made on an
aggregate basis or on a periodic basis is an issue of first
impression in Kentucky but is not unprecedented in other
jurisdictions.
Under a year-by-year approach, as applied by the
circuit court in the instant case, if “a plaintiff’s interim
earnings in any year exceed the wages he or she lost due to the
discrimination, that ‘excess’ must not be deducted from any back
pay for other years to which the plaintiff is entitled.”16
15
Louisville & N.R. Co. v. Wells, 289 Ky. 700, 160 S.W.2d 16, 18-19
(1942); see also Commonwealth v. Ratliff, 497 S.W.2d 435, 436 (Ky.
1973).
16
Leftwich v. Harris-Stowe State College, 702 F.2d 686, 693 (8th Cir.
1983).
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In NLRB v. Seven-Up Bottling Co. of Miami,17 the United
States Supreme Court affirmed the decision of the National Labor
Relations Board (NLRB) to calculate mitigation of damages on a
quarterly basis.
The Court noted that the NLRB had adopted the
quarterly rule because, in cases where the employee eventually
obtained a better-paying job than the one from which he was
discharged, “it became profitable for the employer to delay an
offer of reinstatement as long as possible, since every day the
employee put in on the better paying job reduced back pay
liability.”18
Based on this theory that calculating mitigation
of damages on an aggregate basis provides employers a perverse
disincentive to reinstatement where the discharged employee has
obtained a better-paying job, other courts have also adopted
various periodic approaches to calculating mitigation of
damages.19
17
344 U.S. 344 (1953).
18
Id. at 347.
19
See, e.g., Hartman v. Duffey, 8 F.Supp.2d 1, 6 (D.D.C. 1998)
(stating that “[b]ecause timely reinstatement is an important remedy
under Title VII, periodic mitigation is the preferred method for
determining back pay liability in discrimination cases[]” and
affirming year-by-year approach); Darnell v. City of Jasper,
Alabama, 730 F.2d 653, 656-657 (11th Cir. 1984) (holding that
district court erred in calculating mitigation of damages on an
aggregate basis rather than a quarterly basis in Title VII case);
Leftwich, 702 F.2d at 693 (holding that district court erred by not
calculating mitigation of damages on a year-by-year basis in a
Title VII case); Dyer v. Hinky Dinky, Inc., 710 F.2d 1348, 1350-1352
(8th Cir. 1983) (adopting a pay-period-by-pay-period approach to
mitigation of damages in a Vietnam Era Veterans’ Readjustment
Assistance Act case).
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Mitigation of damages is necessary to make sure that
the injured party does not receive a windfall.20
Neither the
merit board statutes nor Kentucky’s common law provides
specifically how the doctrine of mitigation of damages is to be
calculated when determining back pay for a discharged deputy
sheriff reinstated by the Board.
So long as the method of
calculation chosen by the circuit court serves the goals of the
merit board statutes and equity and is not arbitrary, we hold
that the precise method chosen is within the court’s discretion.
So we find no abuse of discretion in the circuit court’s method
of calculating mitigation of damages on a year-by-year basis.
V.
ANALYSIS OF ISSUES RAISED ON DIRECT APPEAL.
A.
Nominal Damages.
Cherry asserts that the circuit court erred by
awarding him only “nominal damages” in the sum of $7,710.79.
He
asserts that this violates the prohibition against absolute and
arbitrary power contained in the Kentucky Constitution,
Sections 2 and 14.
“‘Nominal damages’ are a trivial sum of money awarded
to a litigant who has established a cause of action but has not
established that he is entitled to compensatory damages.”21
We
20
See Wells, 160 S.W.2d at 18-19.
21
Stoll Oil Refining Co. v. Pierce, 343 S.W.2d 810, 811 (Ky. 1961)
quoting Restatement of the Law, Torts, Section 907.
-19-
doubt that an award of $7,710.79 could be characterized as
“trivial.”22
But even if it could, the circuit court did not
award the $7,710.79 as nominal damages but, rather, as back pay.
As noted above, the amount of the award was based on Cherry’s
actual lost wages in 1995 after offsetting the wages he earned
in his alternate employment that year.
Thus, we reject Cherry’s
nominal damages claim.
B.
Applicability of Mitigation of Damages.
Cherry asserts that the circuit court erred in
applying the doctrine of mitigation of damages to his back pay
award.
The circuit court indicated that it applied the doctrine
of mitigation of damages because it was “constrained by existing
case law[,]” especially Commonwealth v. Ratliff,23 to do so.
In
Ratliff, Kentucky’s highest court offset the back pay award of a
wrongly-discharged employee of the Department of Highways with
his wages earned since termination, stating that Kentucky “is
committed to the doctrine of mitigation of damages in employment
contract cases[.]”24
Cherry asserts that the instant case is distinguishable from Ratliff because that case concerned a terminated
22
See, e.g., Stoll Oil Refining Co., 343 S.W.2d at 811 (holding, in
1961, that $1,500.00 is not trivial.).
23
497 S.W.2d at 435.
24
Id. at 436.
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employee of the Department of Highways,25 which involves
different statutory provisions and protections than those
applicable to a terminated deputy sheriff.
But the Court’s
holding in Ratliff, “that this state is committed to the
doctrine of mitigation of damages in employment contract cases,”
was not based on any statutory language.26
In Ratliff, the Court
described the doctrine of mitigation of damages as “longaccepted.”27
This suggests that the reason the Court did not
more thoroughly explain the basis of its holding is that it
deemed the issue to be well-settled in Kentucky.
For whatever
reason, the holding in Ratliff is written in very broad,
positive language, which does not suggest that it is meant to be
interpreted narrowly, applicable only to cases arising under
employment by the Department of Highways.
We see nothing in the
instant case to distinguish it from the rule announced in
Ratliff.
So we hold that the circuit court properly applied the
doctrine of mitigation in the case at hand based on the
authority of Ratliff.
Cherry concedes that he would have received a
significant windfall if the doctrine of mitigation of damages
25
Id.
26
But see, id. at 436 n.1 (observing that KRS 18.275, “[although]
enacted subsequent to the original judgment, clearly expresses the
long-accepted doctrine of mitigation of damages.”).
27
Id.
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had not been applied by the circuit court.
But he asserts that
applying the doctrine in the instant case rendered his
compensatory damages inadequate to make him whole.
He complains
that his reinstatement and modest back pay award were achieved
“at a personal financial cost in excess of $50,000.00 [in legal
fees] and after [his] being excluded from law enforcement for
almost 10 years.”
He asserts that these facts, and Sheriff
Augustus’s allegedly wrongful conduct since the termination of
Cherry, distinguish the case from Ratliff.
As for Sheriff Augustus’s conduct after termination,
this might be relevant if this were a tort case; but it is not.
This is an action to enforce the order of an administrative
board.
We fail to see how Sheriff Augustus’s post-termination
conduct has any bearing on Cherry’s back pay award, which was
entered under the Board’s order that Cherry receive full back
pay retroactive to his termination.
As for attorney’s fees,
Cherry has addressed this issue separately in his appeal.
His
claim to attorney’s fees must succeed or fail on its own merits.
Cherry is not somehow entitled to more back pay to compensate
for the circuit court’s denial of his claim for attorney’s fees.
The same is true with regard to his claim for the lost
opportunity to pursue his career in law enforcement.
Thus, we
find no merit to Cherry’s claims that the trial court erred by
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applying the doctrine of mitigation of damages to limit his back
pay award.
C.
Attorney’s Fees.
Cherry faults the circuit court for failing to award
him attorney’s fees.
But, “[a]s a general rule, in the absence
of contractual or statutory liability, [attorney’s] fees are not
recoverable as an item of damages[]" under Kentucky law.28
We
find no provision in the merit board statutes providing for
attorney’s fees, nor is there a possible contractual basis for
attorney’s fees in this instance.
Cherry claims that he is entitled to attorney’s fees
based on quantum meruit.
Quantum meruit is an equitable
doctrine granting one “who has rendered services in a quasicontractual relationship” the reasonable value of services
rendered.29
The elements of a claim for quantum meruit are as
follows:
1.
that valuable services were rendered,
or materials furnished;
2.
to the person from whom recovery is
sought;
3.
which services were accepted by that
person, or at least were received by
that person, or were rendered with the
28
Lyon v. Whitsell, 245 S.W.2d 926 (Ky. 1952). See also, CSX
Transportation, Inc. v. First National Bank of Grayson, 14 S.W.3d
563, 569 (Ky.App. 1999).
29
BLACK’S LAW DICTIONARY (8th ed. 2004).
-23-
knowledge and consent of that person;
and
4.
under such circumstances as reasonably
notified the person that the plaintiff
expected to be paid by that person.30
Cherry’s quantum meruit claim is based on the fact
that the version KRS 70.273(4) in force in 1995 provided that
“the county attorney shall represent the board before the
court[]” on a petition for judicial review of the Board’s order.
But the county attorney initially represented Sheriff Augustus
in Augustus.
Cherry reasons that his private attorney advanced
the interests of the Board and also served the county attorney
by fulfilling the county attorney’s obligation to represent the
Board.
Since the Board, the county attorney, and the Sheriff
are all agents or agencies of the county, Cherry reasons that
Sheriff Augustus owes him attorney’s fees based on the doctrine
of quantum meruit.
But we do not agree that Cherry or his
attorney provided any service to Sheriff Augustus; that any
services were accepted by Sheriff Augustus, the Board, or the
county; or that the circumstances were such that Sheriff
Augustus, the Board, or the county was on notice that Cherry
expected to be repaid for the services of his private attorney.
So Cherry’s claim for attorney’s fees based on quantum meruit
30
66 AM.JUR.2D Restitution and Implied Contracts § 38 (2001)
(footnotes omitted).
-24-
fails because he has failed to prove any of the elements of a
quantum meruit claim.
Cherry also makes a claim for attorney’s fees based on
the Equal Protection Clause of the United States Constitution.
He points to the fact that KRS 453.260(1) and 453.260(3) permit
a party prevailing on the merits in a civil action brought by
the Commonwealth against him to recover attorney’s fees.
But
Cherry argues that statute does not apply equally to employees
of a political subdivision of the state, such as Cherry.31
He
argues that based on this statute, wrongfully discharged state
employees are able to recover attorney’s fees while a wrongfully
discharged deputy sheriff such as himself are not, which he
asserts violates the Equal Protection Clause.
But KRS 453.260(1)(a) allows attorney’s fees to a
party “which prevails by a final adjudication on the merits
in . . . [a] civil action brought by the Commonwealth against
the party[.]”
Simply put, the case at hand did not begin as a
civil action brought by the Commonwealth; therefore,
KRS 453.260(1) and (3) are not implicated.
D.
Lost Opportunity to Pursue Chosen Profession.
Cherry asserts that the circuit court erred in denying
him damages for the lost opportunity to engage in his chosen
profession of law enforcement.
31
Again, we disagree.
See KRS 453.255(1).
-25-
We find no authority under the merit board statutes
for either the Board or circuit court to award damages of this
nature.
And Cherry has not cited, nor has our independent
research produced, any instance in which such damages have been
recognized in Kentucky.
Thus, Cherry’s claim regarding damages
for the lost opportunity to pursue his chosen career is without
merit.
E.
Punitive Damages.
Cherry asserts that the circuit court erred in
refusing to grant his claim for punitive damages.
He points out
that punitive damages may be recovered in a claim for wrongful
discharge in violation of public policy32 and in a claim for
breach of employment contract where the employer’s action before
or after discharge involved tortious conduct which would
traditionally be associated with the tort of outrage.33
However,
Cherry fails to consider that these cases involve tort actions
while the instant case is an action to enforce an administrative
order.
Furthermore, we find no support for the proposition that
the circuit court had the authority to award punitive damages in
the instant case.
So the circuit court did not err by declining
to do so.
32
Berrier v. Bizer, 57 S.W.3d 271, 283 (Ky. 2001).
33
See Audiovox Corp. v. Moody, 737 S.W.2d 468, 471 (Ky.App. 1987);
Kroger Company v. Willgruber, 920 S.W.2d 61, 67 (Ky. 1996).
-26-
F.
Post-Judgment Interest.
Cherry’s notice of appeal indicates that he is
appealing, in part, from the July 23, 2004, order denying his
motion for post-judgment interest.
But Cherry’s brief never
refers to this order or the issue of post-judgment interest.
As
a general rule, assignments of error not argued in an
appellant’s brief are waived.34
Thus, we deem Cherry to have
waived this issue.
G.
Expurgation of Personnel File.
Cherry asserts that the circuit court erred by failing
to grant his motion seeking the expurgation of his personnel
file to remove any reference to his termination for misconduct.35
Cherry’s entire argument on this point of appeal is as follows:
“There is really nothing more to say about this error.
Without
doubt, Sheriff Frank Augustus should be ordered to straighten
out Steve Cherry’s deputy sheriff personnel file so that anyone
reviewing it would not conclude that he had been discharged from
employment for misconduct.”
Kentucky Rules of Civil Procedure
(CR) 76.12(4)(c)(v) states, in part, that an appellant’s brief
34
See Commonwealth v. Bivins, 740 S.W.2d 954, 956 (Ky. 1987).
Cf. Grange Mutual Insurance Co. v. Trude, 151 S.W.3d 803, 815 (Ky.
2004).
35
The circuit court did not address this issue at all in any of the
orders on appeal. We must assume that the court’s failure to
address the issue therein was conclusive of the court’s intent to
deny Cherry the relief he sought. See, e.g., Pegler v. Pegler,
895 S.W.2d 580, 581 (Ky.App. 1995).
-27-
shall contain “[a]n ‘ARGUMENT’ conforming to the Statement of
Points and Authorities, with ample supportive references to the
record and citations of authority pertinent to each issue of
law . . . .”
Because Cherry’s brief lacks any citations of
authority pertinent to the issue of expurgation of his personnel
file, it does not comply with CR 76.12(4)(c)(v).
Rather than
ordering the brief stricken for this deficiency, a more
appropriate penalty in this instance is to refuse to consider
Cherry’s contentions regarding the expurgation of his personnel
file.36
Therefore, we need not address the merits of Cherry’s
claim that the circuit court erred by refusing to order Sheriff
Augustus to expurgate Cherry’s personnel file.
VI.
DISPOSITION.
Finding no error, we affirm the circuit court in all
respects as to Cherry’s direct appeal and Sheriff Augustus’s
cross-appeal.
ALL CONCUR.
36
See, e.g., Pierson v. Coffey, 706 S.W.2d 409, (Ky.App. 1985),
(electing not to consider three of appellants’ contentions as
appropriate remedy for failure to comply with CR 76.12 where
appellants merely reiterated their Statement of Points and
Authorities in the Argument portion of their brief and failed to
make any true argument or cite any authorities in support of these
contentions.).
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BRIEFS AND ORAL ARGUMENT FOR
APPELLANT AND CROSS-APPELLEE
STEPHEN L. CHERRY:
Len W. Ogden, Jr.
Paducah, Kentucky
BRIEF AND ORAL ARGUMENT FOR
APPELLEE AND CROSS-APPELLANT
FRANK AUGUSTUS, SHERIFF OF
McCRACKEN COUNTY, KENTUCKY:
Mark D. Pierce
Paducah, Kentucky
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