author: BILL BASS, Justice

text:
    In re CASTLE TEXAS PRODUCTION LIMITED PARTNERSHIP, Castle Texas Pipeline Limited Partnership, CEC Gas Marketing Limited Partnership, and Castle Energy Corporation.
    No. 12-04-00369-CV.
    Court of Appeals of Texas, Tyler.
    March 16, 2005.

      Carl H. Barber, Henderson, Drew R. Heard, Brandy M. Wingate, Dallas, for relators Castle Texas Production Limited Partnership, et al.
    J. Clay Gossett, respondent pro se.
    F. Franklin Honea, Dallas, Mike Hate-hell, Tyler, Ron Adkison, Henderson, for real party in interest The Long Trusts.
    John C. Ginn, Sulphur Springs, Attorney Ad Litem.
    Cynthia L. Humphries, Cooper, for other interested parties.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J., and BASS, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.
   OPINION DENYING MANDAMUS AND PROHIBITION

BILL BASS, Justice

(Retired).

Relators, Castle Texas Production Limited Partnership, Castle Texas Pipeline Limited Partnership, CEC Gas Marketing Limited Partnership, and Castle Energy Corporation (collectively “Castle”), petition for writs of mandamus and prohibition against the respondent, the Honorable Clay Gossett, Judge of the 4th District Court, Rusk County, Texas, seeking enforcement of the mandate issued pursuant to our decision in Castle Texas Production Limited Partnership v. Long Trusts, 134 S.W.3d 267 (Tex.App.-Tyler 2003, pet. denied). We deny the petition.

Background

On September 5, 2001, the trial court rendered its amended final judgment awarding the Long Trusts a monetary recovery against Castle and awarding Castle damages on its counterclaim together with prejudgment interest and attorneys’ fees. Castle posted a supersedeas bond conditioned on Castle’s prosecution of an appeal “with effect.” The Long Trusts posted a certificate of deposit with the district court to secure the payment of that portion of the amended final judgment awarding Castle recovery on its counterclaim against the Long Trusts.

This court reversed that part of the trial court’s judgment awarding the Long Trusts recovery against Castle and remanded the Long Trusts’ breach of contract claims to the trial court for retrial of both the liability and the damage issues. We affirmed the judgment for Castle subject to remittiturs, which Castle submitted. We held, however, that the trial court had not awarded Castle the amount of prejudgment interest on its counterclaim provided by the operating agreement. Therefore, we severed Castle’s counterclaim against the Long Trusts and ordered the respondent to recalculate prejudgment interest at twelve percent as specified in the joint operating agreement.

The Texas Supreme Court denied the Long Trusts’ petition for review, and, on June 9, 2004, this court issued its mandate in enforcement of its judgment.

Upon the issuance of our mandate, Castle moved the trial court to formally sever Castle’s counterclaim, assign the severed claim a new cause number, recalculate prejudgment interest, enter a revised judgment, and allow Castle to collect its judgment from the security given by the Long Trusts. A hearing on Castle’s motion was set for September 21, 2004. Shortly before the September 21, 2004 hearing, the Long Trusts filed its motion in this court seeking clarification of our mandate and judgment. At the hearing held on Castle’s motion, Castle also requested the respondent trial judge to release the supersedeas bond it had posted to secure the Long Trusts’ collection of the amounts awarded it in the trial court’s final judgment. The trial court took under advisement the matters raised in Castle’s motion. On November 2, 2004, the respondent trial judge set the case for trial in March 2005 without assigning Castle’s counterclaim a separate cause number. The respondent also denied Castle’s motion to release its superse-deas bond.

Castle contends that the respondent’s conduct is in defiance of our mandate and asks that we enforce our mandate by mandamus and prohibition

(i) ordering the Respondent to sever Castle’s counterclaim, recalculate prejudgment interest in accordance with the joint operating agreements between the parties, render judgment for Castle in the severed proceeding, and allow Castle to collect its judgment from the security posted by the Long Trusts;
(ii) ordering the Respondent to release Castle’s supersedeas bonds; and
(iii) prohibiting the Respondent from taking actions contrary to this Court’s directives in its Mandate, including proceeding to trial unless and until he has fulfilled this Court’s Mandate.

Applicable Law and Standard of Review

Mandamus is available to correct a clear abuse of discretion or violation of a legal duty imposed by law. Walker v. Packer, 827 S.W.2d 888, 840 (Tex.1992) (orig. proceeding). Moreover, there must be no other adequate remedy at law. Id. When the trial court’s discretion is addressed to a factual issue, the relator must establish that the trial court’s decision was contrary to the only decision reasonable under the circumstances. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985). A trial court, however, has no discretion to determine the applicable law, and the failure of the trial court to correctly apply the law will constitute an abuse of discretion. Walker, 827 S.W.2d at 839-40.

“When the trial court clerk receives the mandate, the appellate court’s mandate must be enforced.” Tex.R.App. P. 51.1(b). A district court has no discretion to interpret an appellate court’s mandate. Schliemann v. Garcia, 685 S.W.2d 690, 692 (Tex.App.-San Antonio 1984, orig. proceeding). A trial court’s failure or refusal to comply with a court of appeals mandate is an abuse of discretion. Lee v. Downey, 842 S.W.2d 646, 648 (Tex.1992) (orig. proceeding). A court of appeals may issue mandamus to enforce compliance by the trial court with its mandate to enter a particular judgment, and the appellate court retains jurisdiction until the judgment ordered has been entered. Curtis v. Nobles, 588 S.W.2d 687, 688 (Tex.App.-Amarillo 1979, orig. proceeding).

A writ of prohibition operates like an injunction issued by a superior court to control, limit, or prevent action in a court of inferior jurisdiction. Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 683 (Tex.1989). The purpose of the writ is to enable a superior court to protect and enforce its jurisdiction and judgments. Id. The writ is typically used to protect the subject matter of an appeal or to prohibit an unlawful interference with the enforcement of a superior court’s orders and judgments. Id. at 683. As with other extraordinary writs, the relator must also establish that it had no adequate remedy at law. Mid Plains Reeves, Inc. v. Baskin, 793 S.W.2d 286, 287 (Tex.App.-El Paso 1990, orig. proceeding); Inman v. O’Donnell, 722 S.W.2d 16, 18 (Tex.App.-Dallas 1986, orig. proceeding). A trial court’s re-consolidation of claims on remand after a severance was upheld on appeal is correctable by prohibition. See Cherokee Water Co. v. Ross, 698 S.W.2d 363, 366 (Tex.1985) (orig. proceeding).

Severance of Counterclaim

Castle first asks that we order the respondent to sever Castle’s counterclaim, recalculate prejudgment interest, render judgment, and allow Castle to collect on its judgment against the security posted by the Long Trusts.

When the trial court took “under advisement” Castle’s motion seeking this relief, the Long Trusts’ motion for clarification of the mandate and/or judgment had only recently been filed in this court. Therefore, we presume that the respondent deferred ruling on the matters raised in Castle’s motion, not in defiance of our mandate, but in awaiting our ruling on the Long Trusts’ motion for clarification.

We have since ruled on the Long Trusts’ motion for clarification, explaining that “our judgment ordering severance did not contemplate nor does the mandate permit the trial court to reconsolidate the cases or to contrive a procedure to delay the rede-termination of prejudgment interest due Castle and its recovery on the judgment until the resolution of the Long Trusts’ claims against Castle.” In the light of our ruling on the Long Trusts’ motion for clarification, we assume the respondent will assign Castle’s severed counterclaim a separate cause number and proceed promptly with the recalculation of the prejudgment interest and the entry of judgment thereon. Undue delay in the timely execution of the mandate will be considered a refusal to enforce the mandate correctable by mandamus. See Lee, 842 S.W.2d at 648. Any reconsolidation of the severed claims is correctable by prohibition. Ross, 698 S.W.2d at 366.

Release of Supersedeas Bonds

Castle also seeks mandamus to compel the respondent trial judge to release the supersedeas bonds posted by Castle on appeal. The trial judge denied Castle’s motion to release the supersedeas bonds although the judgment against Castle had been reversed on appeal and Castle had therefore prosecuted its appeal “with effect.” See Harris v. Keoun, 135 S.W.2d 194, 195 (Tex.Civ.App.-Waco 1939, writ ref'd). No liability on the bonds can arise. See id. There is, however, no provision in the rules requiring the release Castle requests.

As Castle points out, the surety on a bond to secure payment of a reversed judgment is released as a matter of law and is not liable for a judgment rendered upon remand. Amwest Surety Ins. Co. v. Graham, 949 S.W.2d 724, 727 (Tex.App.San Antonio 1997, writ denied); Blair v. Sanborn, 82 Tex. 686, 18 S.W. 159, 160 (1892). The respondent did not abuse his discretion by his denial of a motion unnecessary under our case law and not required by rule or statute.

Conclusion

Having concluded that the record does not show that the respondent clearly abused his discretion or that Castle is entitled to prohibition, the relief requested in the petition is denied. Our stay of January 31, 2005 is lifted.


source: Caselaw Access Project

author: GRAVES, Justice. SCOTT, Justice,

license: Public Domain

text:
    Julio MELO, M.D., Appellant, v. Steven G. BARNETT, et al., Appellee.
    No. 2003-SC-0200-DG.
    Supreme Court of Kentucky.
    March 17, 2005.
    Christopher P. O’Bryan, Cathleen Charters Palmer, O’Bryan, Brown & Toner, Michael Brian Dailey, Louisville, Counsel for Appellant.
    A. Thomas Johnson, Louisville, Counsel for Appellee.
    David A. Friedman, Louisville, Jonathan Givner, Hayley Gorenberg, Lambda Legal Defense and Education Fund, New York, NY, Aids Volunteers of Lexington, Amicus Curiae, Kentucky Aids Life Alliance, Ami-cus Curiae, The Kentucky HIV/AIDS Advocacy and Action Group, Amicus Curiae.
   GRAVES, Justice.

This matter comes to this Court on discretionary review of a claim for breach of medical confidentiality and unreasonable violation of privacy by an HIV positive patient seeking damages from a consulting physician for disclosing his HIV status in a medical record which was forwarded to the employer.

During the course of his employment as a veterinary assistant, Appellee, Steven Barnett, was bitten by a cat. After developing an infection, he was admitted to the hospital where the treating physician diagnosed cellulitis and prescribed antibiotics. Because Barnett was HIV positive, the treating physician consulted Appellant, Julio Meló, M.D., an infectious disease specialist who treated AIDS patients. Dr. Melo’s opinion was sought concerning the appropriate antibiotic treatment for a patient who was already undergoing antibiotic treatment for HIV. Dr. Melo examined Barnett at the hospital to assess the impact of his hand infection on his HIV treatment regimen and to coordinate the antibiotic treatment for his cellulitis and HIV infection.

Upon his hospital admission, Barnett executed a consent form which authorized the disclosing of his HIV status to his employer in the event of a work-related injury. The “Consent to Treatment and Financial Assignment” form which Barnett signed provided as follows:

I authorize Jewish Hospital (or affiliated facility) to release and/or obtain information from my medical record ... including the results for Human Immunodeficiency Virus Infection (HIV)... to any physician rendering care, health, sickness and accident insurance carrier, workers’ compensation carrier and employer in the event of an on-the-job injury, upon ... information that the person or entity requesting such information has a policy covering my present treatment and/or hospitalization.

Since the necessary medical treatment for Barnett’s injury was compensable under the Workers’ Compensation Law, the employer or its insurance carrier was required to pay for Dr. Melo’s reasonable and necessary professional services. KRS 342.020(1) provides that “the provider of medical services shall submit the statement for services within forty-five (45) days of the day treatment is initiated.” The employer or insurer thereafter is required to pay for the services rendered to an employee directly to the provider of services within 30 days. Id. A statement of services is defined as either a completed Form HCFA 1500 or Form UB-92, depending on the provider, with an attached copy of legible treatment notes, hospital admission and discharge summary, or other supporting documentation for the billed medical treatment. 803 KAR 25:096(l)(5)(a). If the medical provider does not tender a statement of services, the medical bills are not compensable. 803 KAR 25:096, section 6. It is ultimately the employer’s responsibility to pay the reasonable and necessary medical expenses for the cure and relief of an employee’s occupational injury. KRS 342.020(1).

Barnett had revealed his HIV status to only a very few select persons, and had intentionally kept his HIV status private from his employer. And, in fact, the employer first became aware of Barnett’s HIV status after receiving the statement of services and Dr. Melo’s consult notes. Barnett later quit his job claiming the office environment had become uncomfortable. Barnett thereafter sued Dr. Melo for damages. The trial court granted Dr. Melo’s motion for summary judgment because the worker’s compensation statute required Dr. Melo to disclose the information concerning medical treatment and thus the disclosure was not unreasonable. The Court of Appeals reversed and remanded for a trial. This Court granted discretionary review. We reverse the Court of Appeals and reinstate the trial court’s judgment of dismissal.

The issue decided by the lower courts was the conflict between a physician’s statutory duty under law to protect the privacy of a patient’s infection with HIV and the statutory requirement of KRS 342.020 and 803 KAR 25:096 that a statement of services accompany a physician’s request to the employer for payment of an employee’s work-related medical expenses. However, the lower courts failed to address the requirements of KRS 342.020(8) and 803 KAR 25:010(5)(l)(b) and (e).

An integral and important part of the benefit scheme of the Kentucky Workers’ Compensation Act is the provision for medical benefits. When Barnett sought medical benefits provided by the workers’ compensation law, he became subject to the provisions of that Act. KRS 342.020(8) provides:

An employee who reports an injury alleged to be work-related ... shall execute a waiver and consent of any physician-patient, psychiatrist-patient, or chiropractor-patient privilege with respect to any condition or complaint reasonably related to the condition for which the employee claims compensation. NoUvithstanding any other provision in the Kentucky Revised Statutes, any.. .health care provider shall, within a reasonable time after written request by the ..., employer, [or] workers’ compensation insurer, ... provide the requesting party with any information or written material reasonably related to any injury or disease for which the employee claims compensation.

Further, 803 KAR 25:010(5)(l)(b) and (c), which requires a signed waiver and consent for release of medical information, states:

(1) To apply for the resolution of an injury claim, the applicant shall file ... the following completed documents:
(b) Medical history (Form 105), to include all physicians, chiropractors, osteopaths, psychiatrists, psychologists, and medical facilities such as hospitals where the individual has been seen or admitted in the preceding fifteen (15) years ....
(c) Medical release (Form 106);

Finally, Form 106 (Kentucky Department of Workers’ Claims Medical Waiver and Consent) is a very broad medical authorization which reads as follows:

Barnett argues that KRS 214.181 confers an absolute right to privacy and that the non disclosure provisions have been breached. Dr. Melo responds that the release executed by Barnett to the hospital was broad enough to cover his treatment. However, this matter is governed by KRS 342.020(8) and 803 KAR 25:010(5)(l)(b) and (c), and may be resolved on the basis of these provisions of the Kentucky Workers’ Compensation Act. By seeking benefits under the Act, Barnett placed his medical condition in issue. By operation of KRS 342.020(8) and 803 KAR 25:010, Barnett was required to execute a release for medical information concerning his treatment for the work-related injury. Since the employer was required by law to pay the work-related medical bills, the very same law gave the employer the right to know the pertinent medical information.

The decision of the Court of Appeals is reversed and the judgment of the trial court is reinstated.

LAMBERT, C.J., GRAVES, JOHNSTONE, and WINTERSHEIMER concur.

SCOTT, J., dissents in a separate opinion in which COOPER, and KELLER, J.J., join.

SCOTT, Justice,

dissenting.

I respectfully dissent.

The Appellant, Dr. Melo, argues he was required by KRS 342.020 to provide his treatment notes, along with his statement for services, regarding his treatment of Steven Barnett, notwithstanding the provisions of KRS 214.181. I do not agree.

Under the workers’ compensation scheme for payments of medical services, KRS 342.020(1), the employer or others acting on his behalf are required to make payments for services rendered to an employee within 30 days of receipt of a “statement for services.” 803 KAR 25:096, Section 1(5) defines a “statement for services” as a completed HCFA 1500 along with an attached copy of legible treatment notes, hospital admission and discharge summary, or other supporting documentation. This allows the health care provider, where appropriate, to provide documentation that does not include references to sensitive information, i.e., HIV/AIDS information. Pursuant to 803 ICAR 25:096, Dr. Melo was authorized to provide “other appropriate documentation” in order to receive payment for his services; assuming it was even necessary.

The Appellant’s argument that KRS 342.020 and 803 EAR 25:096 required him, without regard to the nature of the information he possessed, to provide his treatment notes, in contravention of KRS 214.181, is not compelling. The Kentucky General Assembly recognized many members of the public are deterred from seeking testing and treatment because they misunderstand the nature of the test or fear that results will be disclosed without their consent. KRS 214.181(1). Given this fear, the General Assembly was careful when drafting KRS 214.181, to put in Section (5)(c), which provides a specific list of persons to whom HIV/AIDS test results might be disclosed. Mr. Barnett’s employer was not one of the persons noted to be privy to this information.

Clearly, under the established rules of statutory construction, when two statutes deal with the same subject matter, one in a broad, general way and the other specifically, the specific statute prevails. DeStock # 14, Inc. v. Logsdon, 993 S.W.2d 952 (Ky.1999); Land v. Newsome, 614 S.W.2d 948 (Ky.1981); Riddle v. Scotty’s Development, Inc., 7 S.W.3d 385 (Ky.App.1999); Reisinger v. Grayhawk Corportion, 860 S.W.2d 788 (Ky.App.1993). KRS 214.181 is the more specific statute. Therefore, the only way to comply with the demands of KRS 214.181 is to limit the disclosure of information to the persons noted in section (5)(c). This resolution also meets our standards on reconciliation. “Where there is an apparent conflict between statutes or sections thereof, it is the duty of the court to try to harmonize the interpretation of the law so as to give effect to both sections or statutes if possible.” Ledford v. Faulkner, 661 S.W.2d 475 (Ky.1983).

Finally, and possibly the most compelling ground for resolution, as well as the impetus for KRS 214.181, is the public policy concern evidenced by the loss of employment resulting from this case. As is now well known, the transmission of HIV/AIDS does not occur through everyday contact with infected persons, rather, according to the Centers for Disease Control and Prevention, HIV/AIDS is spread by sexual contact with an infected person, by sharing needles and/or syringes with someone who is infected, or, less commonly, through blood transfusions. However, this knowledge often does not remedy the discrimination towards and the stigma felt by persons infected by the disease.

Dr. Melo was aware, according to his own deposition testimony, of KRS 214.181 and patient privacy rights. He attended a continuing medical education course dealing specifically with HIV/AIDS confidentiality prior to the disclosure of Stephen Barnett’s private medical condition. Furthermore, Dr. Melo’s assistant told Mr. Barnett that she did not realize that the HIV/AIDS information was in the treatment note until he pointed it out to her. Moreover, Dr. Melo, an infectious disease specialist, practices predominantly in a field of medicine which demands a higher degree of attention to the rights of his patients.

We do consider that physicians are trained in medicine, not the intricacies of the law, and that even judges struggle with the proper interpretation of these complicated issues. Yet we cannot ignore the impact disclosure can have on an affected person’s life. This is the reason for KRS 214.181 and it cannot be attained if KRS 342.020 and 803 KAR 25:096, Section 2(5) are interpreted otherwise.

Therefore, for the reasons discussed herein, I respectfully dissent and would affirm the decision of the Court of Appeals, sending this matter back to the trial court for further proceedings consistent with this opinion.

COOPER and KELLER, JJ., join this dissenting opinion.

      . KRS 214.181 — The General Assembly finds that the use of tests designed to reveal a condition indicative of human immunodeficiency virus (HIV) infection can be a valuable tool in protecting public health. The General Assembly finds that despite current scientific knowledge that zidovudine (AZT) prolongs the lives of acquired immunodeficiency syndrome victims, and may also be effective when introduced in the early stages of human immunodeficiency virus infection, many members of the public are deterred from seeking testing because they misunderstand the nature of the test or fear that test results will be disclosed without their consent. The General Assembly finds that the public health will be served by facilitating informed, voluntary, and confidential use of tests designed to detect human immunodeficiency virus infection.

      (5) (c) No person who has obtained knowledge of a test result pursuant to this section shall disclose or be compelled to disclose the identity of any person upon whom a test is performed, or the results of a test in a manner which permits identification of the subject of the test, except to the following persons:
      1. The subject of the test or the subject’s legally authorized representative;
      2. Any person designated in a legally effective release of the test results executed ... by the subject or the subject’s legally authorized representative;
      3. A physician, nurse, or other health-care personnel who has a legitimate need to know the test result ...
      4.Health-care providers consulting between themselves...
      9.e. No person to whom the results of a test have been disclosed shall disclose the test results to another person except as authorized by this subsection. When disclosure is made pursuant to this subsection it shall be accompanied by a statement in writing that includes the following or substantially similar language: "This information has been disclosed to you from records whose confidentiality is protected by state law. State law prohibits you from making any further disclosure of such information without the specific written consent of the person to whom such information pertains, or as otherwise permitted by state law. A general authorization for the release of medical or other information is NOT sufficient for this purpose....”

      . Refer to Footnote 1 of Majority Opinion.

      . Centers for Disease Control and Prevention, National Center for HIV, STD and TB Prevention, Divisions of HIV/AIDS Prevention, Fact Sheet, HIV and Its Transmission <http://www.cdc.gov/hiv/pubs/facts/transmission.htm > (accessed Feb. 18, 2005).


author: Justice WINTERSHEIMER. Justice COOPER. Justice GRAVES.

text:
    Brandon LUMPKINS, Minor, by Parent and Next Friend, Latonia LUMPKINS; Kenneth R. Anthony; and Jason Starks, Appellants/Cross-Appellees, v. CITY OF LOUISVILLE, Appellee/Cross-Appellant.
    No. 2003-SC-0267-DG, 2003-SC-851-DG.
    Supreme Court of Kentucky.
    March 17, 2005.

      Glenn Alan Cohen, Cynthia Lynn Ef-fínger, Paul Joseph Hershberg, Seiller & Handmaker, LLP, Louisville, Counsel for Appellants/Cross-Appellees.
    Paul Guagliardo, Carrie Pearson Hall, Lisa A. Schweickart, Assistant County Attorneys, William C. Stone, Director of Law, Louisville, Counsel for Appel-lee/Cross-Appellant.
   Opinion of the Court by

Justice WINTERSHEIMER.

This appeal and cross-appeal are from an opinion of the Court of Appeals reversing a judgment based on a jury verdict in favor of the plaintiffs in an action alleging racial discrimination resulting from a hostile work environment. The Court of Appeals reversed on the basis that the instructions used by the trial judge failed to include language that an isolated incident, unless extremely serious, is insufficient to establish a hostile work environment. The jury awarded each of the appellants $167,000 for embarrassment and humiliation.

The questions presented are whether the jury instructions follow the “bare bones” rule favored by this Court; whether the City properly preserved its objection to the instructions; whether the supplemental instruction requires the jury to find multiple incidents of discriminatory conduct in order to find a hostile work environment; whether the jury verdict is supported by the evidence; whether the trial judge abused her discretion by failing to give the jury interrogatories; whether the plaintiffs established that they suffered a tangible job detriment; and whether the City is entitled to a new trial on damages because of an improper verdict.

The appellants are African-Americans who worked as lifeguards for the public pools operated by the City of Louisville in the summer of 1997, during which time they claim that they were subjected to racial discrimination as a result of a hostile work environment. They assert that they were assigned to pools in predominantly African-American neighborhoods because they would “fit in better.” They also allege that their direct supervisor, a Caucasian, singled them out for unpleasant chores, such as cleaning feces off the pool deck; that he excluded them from a work-related social function; and that he repeatedly referred to each of them as “boy.”

On August 11, 1997, the direct supervisor accused the appellants of having vandalized his bicycle. Although there is some difference in their testimony, all of the appellants testified that the direct supervisor yelled at them and referred to them as “nigger.” The direct supervisor walked out onto the pool deck and screamed, “These niggers did this to my bike, and they need to get out of my pool.” This outburst was in front of a pool full of swimmers, including parents with their young children. Lacking the authority, the direct supervisor then fired the appellants, telling them to go home and that they were not needed. His supervisor called the appellants at home and told them that they were not fired and they returned to work. She also informed the direct supervisor that evening that he was fired from his position.

The appellants sued the City for creating a hostile work environment and the City denied all the allegations except for the actions by the direct supervisor on August 11. At trial, the City offered a 40-page set of jury instructions that included definitions of “severe” and “pervasive” and interrogatories asking the jury to determine if certain events occurred. The trial judge declined the proffered instructions and interrogatories and instructed the jury to find for the appellants if they were subjected to racial harassment that was severe or pervasive enough to create a hostile work environment. The trial judge also listed several factors for the jury to consider, including among others, the frequency and severity of the conduct and whether the conduct was physically threatening or humiliating.

A panel of the Court of Appeals rendered a 17-page opinion which reversed and remanded for retrial as a result of a perceived error that the instructions used by the trial judge improperly failed to include an instruction that an isolated incident, unless extremely serious, is insufficient to establish a hostile work environment pursuant to Ammerman v. Board of Educ. of Nicholas County, 30 S.W.3d 793 (Ky.2000). The Court of Appeals also held that the trial judge did not abuse her discretion in refusing to use the proffered instructions by the City because the claims of the appellants are evaluated under a “totality of the circumstances” and the interrogatories would have focused too much on individual incidents. This Court accepted discretionary review on both the motion and cross-motion.

I. Instructions

The City properly preserved its objection to the instructions given by the trial judge. The tendered instructions presented its position to the court. The City also objected to the instructions given on grounds that the jury would be allowed to find that a single incident on August 11, 1997, created a hostile work environment.

The relevant instruction read as follows:

INSTRUCTION NO. 1
You will find for the Plaintiffs, Brandon Lumpkins, Jason Starks and Kenneth Ryan Anthony, under this Instruction, if you are satisfied from the evidence that in the course of the Plaintiffs’ employment with the Defendant City of Louisville, the Plaintiffs were subjected to racial harassment by the Defendant City of Louisville, by and through its agents, severe or pervasive enough to create a work environment that a reasonable person would find hostile or abusive, and that the Plaintiffs subjectively regarded as hostile or abusive.
In determining whether the work environment was hostile or abusive, you may consider any of the following factors:
a. the frequency of the conduct or behavior;
b. the severity of the conduct or behavior;
c. whether the conduct or behavior was physically threatening or humiliating; OR
d. whether the conduct or behavior unreasonably interfered with the Plaintiffs’ work performance.

The instructions given by the trial judge followed the “bare bones” rule. They clearly convey the standard enunciated in Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), that the hostile work environment discrimination must be severe or pervasive and more than episodic. The Kentucky practice of “bare bones” instructions applies to all litigation including civil rights cases. The concept permits the instructions to be “fleshed out” in closing argument. See Rogers v. Kasdan, 612 S.W.2d 133 (Ky.1981). Whether a work environment is hostile is determined on the totality of the circumstances and juries should not be encouraged to disaggregate individual circumstances. Cf. Williams v. General Motors Corp., 187 F.3d 553 (6th Cir.1999); see also Bowman v. Shawnee State University, 220 F.3d 456 (6th Cir.2000). In this matter, the trial judge correctly determined that the proper forum for these concerns was closing argument rather than jury instructions.

The language required by the Court of Appeals, that an isolated incident, unless extremely serious, is insufficient to create a hostile work environment, is redundant when incorporated in these instructions. Such repetition is prejudicial because it causes undue focus on specific facts or issues. See Geyer v. Mankin, 984 S.W.2d 104 (Ky.App.1998); see also Commonwealth v. Callahan, 675 S.W.2d 391 (Ky.1984); Jones v. Sharp’s Adm’r, 282 Ky. 638, 139 S.W.2d 731 (1940). Although it is correct, as observed in Ammerman, supra, that isolated incidents must be extremely serious and be more than episodic, such language in the instructions is unnecessary in this situation. Cf. Cox v. Cooper, 510 S.W.2d 530 (Ky.1974).

The words “severe” and “pervasive” are not beyond the understanding of any juror. They are not terms of art, nor are they arcane. It has been held that it is reversible error to define terms which are readily understood by jurors. Cf. McKinney v. Heisel, 947 S.W.2d 32 (Ky.1997). Additional and unnecessary definitions would permit prejudicial error.

II. Supplemental Instruction

The appellants contend that the supplemental instruction mandated by the Court of Appeals does require the jury to find multiple incidents of discriminatory conduct in order to find a hostile work environment. They maintain that the objection by the Court of Appeals is not remedied by its proposed solution. The appellants assert that the City did not preserve its objection because it failed to tender an instruction that would have advised the jury that it could only find a hostile work environment if it concluded that multiple incidents of discriminatory conduct had taken place.

We have already determined that the City properly preserved its objection to the instructions. We have also concluded that the instructions given by the trial judge were proper. The analysis by the Court of Appeals was in error. It is not necessary for us to address this issue further.

III.Evidence

The instructions given by the trial judge completely state the law and the appellants presented sufficient evidence from which a jury could determine a hostile work environment existed and thus this case should be reviewed for clear error. Cf. Meyers v. Chapman Printing Co., 840 S.W.2d 814 (Ky.1992). The other evidence regarding several incidents of discrimination other than the August 11th confrontation was sufficient to support the finding of the jury.

Indeed, there were multiple incidents of discrimination which supported the findings of the jury as to a hostile work environment. There was supportive evidence of the racial epithets used by the direct supervisor. It has been noted in other jurisdictions that when a grown white man refers to a grown black man as “boy,” there is a racially discriminatory connotation. Cf. Jackson v. Quanex Corp., 191 F.3d 647 (6th Cir.1999); Williamson v. Shalala, 992 F.Supp. 454 (D.D.C.1998). There was sufficient evidence to support the verdict.

IV.Cross Appeal — Separate Interrogatories

As the Court of Appeals correctly held, the request by the City for separate interrogatories was properly rejected by the trial judge. It was not an abuse of discretion for the trial judge to refuse to use the proffered instructions because the claims involved are to be considered under a totality of circumstances, and the interrogatories would have placed undue emphasis on individual incidents. Bowman, supra.

V. Tangible Job Detriment

The City complains that the appellants did not suffer a tangible job detriment when their direct supervisor fired them because he did not have the authority to do so. The Court of Appeals correctly found that the failure of the City to distribute a harassment policy and complaint procedure to the appellants foreclosed the right of the City to assert the affirmative defense. See Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). Consequently, the argument that the appellants did not suffer a tangible job detriment is moot.

VI. Motion for a New Trial

The City claims that the trial judge erred in denying its motion for a new trial for the following three reasons: 1) The jury was improperly motivated by passion and prejudice when it rendered its verdict because of the repeated use of the word “nigger” by plaintiffs counsel; 2) The jury’s award was punitive, not compensatory because the plaintiffs attorney asked the jury to send the City a message that its behavior was not acceptable and to compensate the appellants for what happened, making reference to the $21 million budget of the Parks Department; 3) The jury’s verdict grossly exceeds the evidence of damages introduced at trial.

It should be noted that the City failed to make a contemporaneous objection to the allegations now raised on appeal. In any event, none of these arguments have merit. The use of the racial epithet was a recitation of the evidence by counsel. Clearly, the word is offensive but it was conceded that it was used by the direct supervisor. The finding by the trial judge that it was neither excessive nor inflammatory should not be disturbed.

The contention that closing argument by counsel for the plaintiff amounted to a request for punitive damages is without merit. His appeal to the jury was consistent with the underlying purpose of the Kentucky Civil Rights Act. The brief reference to the City’s recreation budget only arose because the City itself introduced the budget into evidence, and it did not have anything to do with damages in any way.

The trial judge reviewed the post-trial motions and denied the complaint that the verdict was excessive. The trial judge had the opportunity of hearing all the evidence and was in the best position to review the verdict for such an allegation. The evidence supported the verdict and there was no clear error. The inflamed jury argument was of no consequence. Proof of physical injury in this type of case is unnecessary because the harm suffered by the plaintiffs is embarrassment and humiliation. In any event the City cites no authority in support of its contention that the amount of the award was excessive. There is no evidence of any jury misconduct. The trial judge properly denied the motion by the City for a judgment notwithstanding the verdict and/or a new trial.

It is the decision of this Court that the instructions as given by the trial judge were consistent with the approach to the “bare bones” rule in Kentucky. Therefore, the opinion of the Court of Appeals is reversed and this matter is remanded to the trial court with directions to reinstate the judgment in favor of the appellants.

LAMBERT, C.J., JOHNSTONE, KELLER, and SCOTT, JJ., concur.

COOPER, J., dissents by separate opinion and is joined by GRAVES, J., who also flies a separate dissenting opinion.

Dissenting Opinion by

Justice COOPER.

I have no quarrel with the “bare bones” approach to instructing juries in Kentucky — so long as the jury is given all the bones. Because the jury was given less than a whole skeleton in this case, I respectfully dissent.

The law is clear that a hostile work environment claim cannot be premised upon one incident involving the “mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee.” Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 2283, 141 L.Ed.2d 662 (1998) (quoting Rogers v. Equal Employment Opportunity Comm’n, 454 F.2d 234, 238 (5th Cir.1971)). “A recurring point in these opinions is that ... isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’ ” Id. at 788, 118 S.Ct. at 2283. We adopted this principle verbatim in Ammerman v. Bd. of Educ., 30 S.W.3d 793 (Ky.2000), and noted that “[w]e are unable to find any authority holding that a single incident can support a claim for ‘hostile environment’ — ” Id. at 799.

The City admitted that on August 11, 1997, Appellants’ supervisor accused Appellants of vandalizing his bicycle and referred to them on one occasion as “niggers,” and that such constituted an act of racial discrimination/harassment. As a matter of law, however, that incident, standing alone, does not support a claim of hostile work environment. Faragher, 524 U.S. at 787, 118 S.Ct. at 2283; Ammerman, 30 S.W.3d at 799. Unfortunately, the instructions did not inform the jury of that fact, thus did not “properly and intelligibly state the law.” Howard v. Com monwealth, 618 S.W.2d 177, 178 (Ky.1981). While Appellants introduced evidence from which a jury could believe that other incidents of racial discrimination occurred, the City offered evidence that could lead a jury to the contrary conclusion. Thus, the jury may well have decided this case solely on the basis of the August 11, 1997, incident. I do not believe use of the undefined term “pervasive” sufficed to inform the jury that it could not find for Appellants solely on the basis of that one incident.

Accordingly, I respectfully dissent and would affirm the Court of Appeals and remand this case for a new trial before a properly instructed jury.

GRAVES, J., joins this dissenting opinion.

Dissenting Opinion by

Justice GRAVES.

I join Justice Cooper’s dissent. However, I write separately to address the issue of excessive damages. An award of nearly one-half million dollars for an isolated incident is grossly disproportionate. These entry-level minimum wage seasonal employees failed to offer sufficient proof to justify such actual damages. The only rational explanation for this bonanza is that the award was intended to punish the City of Louisville. In these claims, punitive damages are not authorized by law. In fact, rewards of this nature will offer stiff competition to the lottery.

I would sua sponte remand to the circuit court for a new trial.


author: Justice WINTERSHEIMER.

text:
    Timothy WELBORN, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.
    No. 2002-SC-1071-MR.
    Supreme Court of Kentucky.
    March 17, 2005.

      Donna Boyce, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Counsel for Appellant.
    Gregory D. Stumbo, Attorney General, Gregory C. Fuchs, Assistant Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.
   Opinion of the Court by

Justice WINTERSHEIMER.

This appeal is from a judgment based on a jury verdict that found Welborn guilty but mentally ill of three counts of first-degree assault and one count of disarming a police officer. He was sentenced to a total of thirty-five years in prison.

The questions presented are whether it was error to submit to the jury three separate charges of first-degree assault; whether it was error to allow the prosecution to play for the jury a video statement made by Welborn to police shortly after the offense; whether it was error to inform the jury during voir dire of the future consequences of returning verdicts of not guilty by reason of insanity and guilty but mentally ill; whether it was error to prohibit the introduction of medical reports related to insanity at the time of the assault; whether there was prosecutorial error in closing arguments; whether it was error to deny a motion for directed verdict of not guilty by reason of insanity; whether it was error not to grant a motion for change of venue and not to grant a motion for new trial; and whether the cumulative effect of the alleged errors deprived Wel-born of a fair trial.

A state trooper was dispatched by radio to a residence where Welborn was staying. The dispatcher told the officer that a mother needed someone to check on the welfare of her son, and the dispatcher also advised that the son was threatening to kill all non-Christians. When the trooper arrived at the home, he attempted to engage Welborn in conversation. Welborn insisted that he was feeling alright and had no problems. The trooper then received a call from dispatch regarding the status and the need for backup. As the trooper put his radio back onto his belt, Welborn lunged at him and grabbed the officer’s weapon. They scuffled and rolled on the floor, each trying to gain control of the gun.

A brother-in-law who was in the house attempted to intervene on the behalf of the officer. When he did, the officer, who was locked up with Welborn, mistakenly grabbed the brother-in-law’s hand, thinking he was going to handcuff his attacker. Welborn was able to grab the 10-millime-ter weapon at that moment, disarming the officer. He then shot the trooper in the right arm. The trooper sought cover in the next room and after running out of the house towards his cruiser, Welborn fired again, striking the trooper in the neck. An attempt by the brother-in-law to disarm Welborn failed following another brief struggle. The officer was able to obtain a shotgun from the cruiser, but Welborn fired again and struck the officer in the shoulder. Eventually, the brother-in-law subdued Welborn.

Welborn was arrested and sent to the Kentucky Correctional Psychiatric Center for a competency evaluation by the district court. The first competency report in 1999 indicated that the defendant was completely oriented at the time he entered the facility, but deteriorated after admission and was then incompetent for trial. Later, he was readmitted to the hospital under a circuit court order and was ultimately determined to be competent to stand trial. A third examination was ordered by the circuit court and the results were the same as the earlier evaluation which found the defendant competent to stand trial, but not criminally responsible for his actions at the time of the offense.

Originally, Welborn was indicted on three counts of first-degree assault, one count of disarming a police officer and one count of attempted murder. At trial, the prosecution’s motion to dismiss the attempted murder charge was granted over the defendant’s objection. The jury found Welborn guilty but mentally ill on the assault and disarming charges. The jury recommended 15 years on the first assault, 18 years on the second assault, 17 years on the third assault and three years on the charge of disarming a police officer, to run consecutively for a total of 53 years in prison. The trial judge reduced the sentence to 35 years by running counts one and four concurrently with consecutive sentences for counts two and three. This appeal followed.

I. Instructions for Three Counts of Assault

Welborn argues that it was a violation of double jeopardy prohibitions to submit his case to the jury on instructions for three counts of first-degree assault. He contends that his behavior was one continuous course of conduct and that there was only one count of assault to submit to the jury. The real question is whether it was the individual acts which are prohibited, or the course of action they constitute. If it is the individual acts, then each act is punishable separately, but if it is a single course of conduct, there is only one punishment. Cf. Commonwealth v. Burge, 947 S.W.2d 805 (Ky.1996).

KRS 505.020 allows prosecution for multiple offenses arising from a single course of conduct. However, KRS 505.020(l)(c) does not permit such prosecution if the offense is designed to prohibit a continuing course of conduct and the defendant’s course of conduct was uninterrupted by legal process, unless the law expressly provides that specific periods of such conduct constitute separate offenses.

Hennemeyer v. Commonwealth, 580 S.W.2d 211 (Ky.1979), distinguished assault from wanton endangerment because of the necessity of intent and held that the purpose of the wanton endangerment statute is to protect each and every person from each act coming within the definition of the statute and not to punish a continuous course of conduct. There is no indication that the assault statute was intended to be interpreted differently. Hennemeyer, supra, sets out the commentary to the 1974 statute noting in particular that the only difference between assault and wanton endangerment is that there is no actual injury from the latter and because this is purely fortuitous, it would affect only the sanction. The assault statute prohibits individual acts and not a course of conduct. Chapter 508 of the Kentucky Revised Statutes is entitled “Assault and Related Offenses.” KRS 508.010, the assault statute, is expressed in part as follows:

A person is guilty of assault in the first degree when: (a) He intentionally causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument ....

Assault is a “result” offense. Tharp v. Commonwealth, 40 S.W.3d 356, 360-61 (Ky.2000); KRS 502.020 (1974 Official Commentary). The following three elements comprise the crime: 1) the assailant’s mental state; 2) the means of attack; and 3) the resulting injury. See Commonwealth v. Hammond, 633 S.W.2d 73 (Ky.App.1982). Once all three elements are met, the crime is complete.

Accordingly, the circuit judge did not err in submitting the case to the jury with instructions for three counts of first-degree assault. The defendant shot the trooper three separate times and inflicted three separate wounds. The indictment specifically identifies each action by the location of the wound. Each shot was preceded by a sufficient period of time in which Welborn could reflect on his conduct and formulate intent to commit another act. Welborn first shot the trooper in the right forearm. Evidently, the recoil of the weapon prevented Welborn from immediately shooting again, and the trooper moved to a doorway and sought cover in the next room. As the trooper left the house, Welborn fired again and the officer was struck in the neck. The trooper then made it to his cruiser, removed a shotgun, and pointed it at Welborn who moved to a corner of the house. Welborn fired again and hit the officer for a third time in the shoulder. Evidence was introduced that the three shots resulted in three separate serious physical injuries.

There was a sufficient break in the conduct and time so that the acts constituted separate and distinct offenses. Cf. Van Dyke v. Commonwealth, 581 S.W.2d 563 (Ky.1979), which holds that criminal sexual acts which occurred in a span of approximately 15 minutes on the same day did not prohibit multiple convictions. The unanimous court did not agree with the defendant’s contention that the two convictions of rape and the conviction of sodomy should be merged into a single conviction because the offenses occurred during one continuous sexual assault against the same victim. Van Dyke, supra. Writing for the court, Justice Lukowsky stated that the fact that the acts occurred in a brief period of time with the same victim and in a continuum of force does not protect the defendant from prosecution and conviction on each separate offense. Van Dyke.

Welborn was properly charged and convicted and he was not subjected to double jeopardy. There is no legislative intent to the contrary, nor is there any Kentucky case law which supports the defendant’s position. This is not a question of ambiguity as to legislative intent, and, consequently, any principles of lenity or leniency do not arise.

II. The Videotaped Statement

It was not error for the trial judge to admit the videotaped statement by Wel-born to the police into evidence because the defendant gave it after being duly Mirandized and without any indication that he was not competent to give the statement or that he gave it involuntarily in any way. The trial judge denied the suppression motion and subsequent objections after a hearing. The uncontradicted testimony of the police detective was to the effect that the defendant was readvised of his rights and gave a waiver and that he was not forced. He further stated that the defendant understood the questions and there was no indication that he was not competent, nor was he giving the statement involuntarily. Cf. Reeves v. Commonwealth, 462 S.W.2d 926 (Ky.1971). No error occurred in admitting the videotaped statement.

III. Explanation to Jury

Welborn complains that it was error for the trial judge to advise the jury during voir dire as to the future consequences of their possible verdict. The alleged error was not preserved by contemporaneous objection. Review is sought under RCr 10.26.

The trial judge informed the jury during voir dire that there would be four verdicts for them to consider — not guilty, not guilty by reason of insanity, guilty but mentally ill and guilty. The jurors made several comments questioning the different verdicts and were not satisfied when it was explained that their concerns about the future implications of those verdicts were not important at this stage. After jurors continued to express concerns, the trial judge then observed that if the consequences of the verdict were not explained in voir dire, then they would lose 99 percent of the jury. Neither the Commonwealth nor the defense objected to informing the jury of the general consequences of the different verdicts.

When requested by either party in a trial by jury of the issue of absence of criminal responsibility for criminal conduct, the trial judge is required under RCr 9.55 to instruct the jury at the guilt/innocence phase as to the dispositional provisions applicable to the defendant if the jury returns a verdict of not criminally responsible by reason of mental illness or guilty but mentally ill. Considering the requirements of this rule, we can perceive no error in informing the jury of the same information during voir dire. Consequently, it was not error for the trial judge to explain to the jury in voir dire the procedural differences in a guilty but mentally ill verdict, and a not guilty by reason of insanity verdict. The legal authorities relied on by Welborn predate the adoption of RCr 9.55. Welborn was not deprived of his constitutional rights to a fair trial. There was no contamination of the jury pool. There was no palpable error or manifest injustice.

IV. Medical Report Disallowed

Welborn argues that it was error to deny the admission of certain medical reports into evidence. At trial, both Dr. Deland and Dr. Drogin were permitted to testify from their reports with respect to the condition of the defendant and their opinions thereof. The trial judge correctly denied an attempt by the defense to admit the reports as exhibits. They were entered into the record by avowal.

The reports were properly excluded because of their irrelevant and hearsay contents. Cf. Wright v. Premier Elkhorn Coal Co., 16 S.W.3d 570 (Ky.App.1999) and KRE 801. Generally, a jury is not permitted to take even a sworn deposition to the jury room because jurors might give undue weight to the testimony contained in such a document, and not give adequate consideration to controverting testimony received from live witnesses. See Berrier v. Bizer, 57 S.W.3d 271 (Ky.2001). There was no error in denying admission of the reports as exhibits.

V. Closing Argument

Welborn contends that the prosecutor erred in closing arguments in the following three ways: 1) by criticizing the expert witness for failing to testify to the ultimate issue when the witness believed he could not properly do so under the rules of evidence; 2) by incorrectly stating the legal standard for the defense of insanity; and 3) by encouraging a conviction and high sentence based upon speculation about his future dangerousness to the community. These contentions were not properly preserved, but the defendant seeks review as palpable error pursuant to RCr 10.26.

There was no palpable error when the prosecutor commented on the testimony of Dr. Deland. Defense counsel claimed that the only evidence presented was that Wel-born was insane. In response, the prosecutor noted that Dr. Deland did not say Welborn was insane. There was no misleading of the jury as a result of this exchange.

The prosecutor asserted during closing argument that the defendant was mentally ill, but he knew “right from wrong.” He then closed by stating that this was “not a case about whether he was mentally ill, it’s whether he knew right from wrong, whether he was insane.” Welborn claims that the prosecutor misstated the test for insanity as being whether he knew right from wrong generally, as opposed to whether he lacked substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. Mattingly v. Commonwealth, 878 S.W.2d 797, 800 (Ky.App.1993). In Mattingly, supra, the error was preserved by contemporaneous objection. Here, we find no palpable error because the jury instructions correctly stated the test for insanity.

In regard to the penalty phase argument, Welborn claims that the jurors were told that they were not here just to punish, but for “protection of our communities, protection of all of us.” The prosecutor also warned of a possible relapse by Welborn and advised jurors to “take that into consideration” when deciding a sentence. The prosecutor was asking the jury to fix a proper punishment based on the crime and the circumstances in response to defense counsel’s request for a minimum concurrent sentence. His argument did not exceed the broad latitude provided to convey to the jury that the offenses involved should not be considered lightly. There was no error, nor was there any palpable error or manifest injustice as a result of the statements. A careful review of the entire argument discloses no palpable error or cumulative error.

VI.Directed Verdicts

The trial judge properly denied the motions for directed verdicts. The standard for consideration of a motion for directed verdict is well known and is set out in Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky.1983), and restated in Commonwealth v. Benham, 816 S.W.2d 186 (Ky.1991). On appellate review of the denial of a directed verdict, the test is whether, under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt. Benham, supra; Sawhill, supra.

The evidence in support of Wel-born’s insanity defense was not as overwhelming as he now argues. For example, the defendant’s expert based his opinion that Welborn was insane at the time of the shootings in part on the fact that he did not attempt to conceal his crimes or seek to escape detention. However, Welborn actually tried to blame his brother-in-law for the shootings. Flight and attempt at concealment are circumstantial evidence of guilt because they suggest a guilty state of mind. Fugate v. Commonwealth, 445 S.W.2d 675 (Ky.1969). Further, Welborn acknowledged on cross-examination that he did not kill his other family members even though he thought they were going to kill him because it was wrong. His brother-in-law indicated that Welborn stopped pursuing the state trooper not because he had killed him, but because he [the brother-in-law] directed him to stop.

Here, the question for the jury was whether Welborn was or was not insane at the time of the shooting, and whether as a result of mental illness, he lacked substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. See KRS 504.020. The jury weighed all the factors considered in regard to the paranoid schizophrenia argument. It could not be said that it was clearly unreasonable for the jury to find the defendant guilty but mentally ill, and not “not guilty by reason of insanity.” The trial judge correctly denied the motions for directed verdicts. Port v. Commonwealth, 906 S.W.2d 327, 330-331 (Ky.1995).

VII. Change of Venue

Welborn challenges the decision of the trial judge to deny the motion for change of venue. He admits that his motion was deficient because it was not supported by affidavits. The motion was also not verified pursuant to KRS 452.220(2). We recognize that it is not error to deny a motion which is not supported by a verified affidavit or petition. Cf. Whitler v. Commonwealth, 810 S.W.2d 505 (Ky.1991). Here, the failure to file the affidavit is fatal to the petition because compliance with KRS 452.220 is mandatory. See Caine v. Commonwealth, 491 S.W.2d 824 (Ky.1973). There was no error.

VIII. Cumulative Error

Finally, Welborn claims that he is entitled to a reversal because of cumulative error. Our careful review of the entire record in this case indicates that the defendant received a fundamentally fair trial and that there was no error and thus no cumulative error that would ever require reversal. See Bowling v. Commonwealth, 942 S.W.2d 293 (Ky.1997). Welborn was not denied any of his rights pursuant either to the federal or state constitution.

The judgment of conviction is affirmed.

All concur.


author: Chief Justice LAMBERT. Justice JOHNSTONE.

text:
    COMMONWEALTH of Kentucky, Appellant, v. Robert SOWELL, Appellee.
    No. 2003-SC-0355-DG.
    Supreme Court of Kentucky.
    March 17, 2005.
    Gregory D. Stumbo, Attorney General of Kentucky, Criminal Appellate Division, Office of the Attorney General, Frankfort, Christopher Melton, Karl Price, Special Assistant Attorneys General, Louisville, Counsel for Appellant.
    J. David Niehaus, Daniel T. Goyette, Of Counsel, Office of the Louisville Metro Public Defender, Louisville, Counsel for Appellee.
   Opinion of the Court by

Chief Justice LAMBERT.

KRS 500.050(2) provides that a misdemeanor prosecution must be commenced within one year after the offense is committed. A misdemeanor prosecution for assault was timely commenced against Ap-pellee, Robert Sowell, but was dismissed without prejudice due to the inability of the Commonwealth to produce the complaining witness at trial. More than ten days after entry of the order of dismissal, the case was redocketed via motion, and again set for trial. The question we must address is whether a case dismissed without prejudice may be redocketed and proceed as if there had been no dismissal or whether new process is required. We hold that a dismissal without prejudice is a final and appealable order, and that after dismissal without prejudice and loss of trial court jurisdiction, a defendant must be recharged. Therefore, we affirm the Court of Appeals.

On August 2, 1999, Sowell allegedly assaulted Bonita Clarke and her son, and allegedly damaged Ms. Clarke’s property. An arrest warrant was issued for Sowell’s arrest on September 15, 1999, but Sowell was not arrested until May 17, 2000. So-well was charged with two counts of fourth-degree assault and a single count of criminal mischief, all misdemeanors. The case was set for trial on May 30, 2000, but continued until June 9, 2000. The prosecuting witness, Ms. Clarke, however, did not respond to the subpoena for her attendance or appear for either trial date. On June 9, 2000, the district court dismissed the case without prejudice.

More than ten days after the date of dismissal without prejudice (July 12, 2000), but still within the KRS 500.050(2) one-year period of limitation, the Commonwealth moved to redocket the case. The district court granted the motion and set the trial date for August 7, 2000. Thereafter, Sowell filed a motion to dismiss stating that the prosecution was not timely under KRS 500.050(2), and the district court granted the motion. On appeal, the Jefferson Circuit Court reversed on grounds that the Commonwealth had complied with KRS 500.050(2) because Sowell received notice of the charges against him within the one-year period. The Court of Appeals granted discretionary review, reversed the circuit court, and held that finality of the dismissal without prejudice by expiration of the time allowed in CR 59.05 and RCr 12.04 barred redocketing the case. Upon the Commonwealth’s Motion, this Court granted discretionary review.

At the outset we will examine the meaning and effect of the phrase “without prejudice” in a dismissal order. Black’s Law Dictionary defines dismissed without prejudice as “[rjemoved from the court’s docket in such a way that the plaintiff may refile the same suit on the same claim.” CR 54.01 defines final order or judgment as “adjudicating all of the rights of ah of the parties in an action or proceeding....” In several cases we have held that a dismissal without prejudice is a final and appealable order. Notably, in Wood v. Downing’s Admr., we held that an order dismissing without prejudice “fixed absolutely and finally the rights of the parties in this suit in relation to the subject matter of the litigation, and put an end to the suit. It was a final appealable order.” Notwithstanding the “without prejudice” language, an order of dismissal adjudicates all rights. Nothing remains to be done.

The Commonwealth argues that a dismissal without prejudice is not a final adjudication of the merits of the claim, and therefore the original process is sufficient to resurrect the dismissed case. The Commonwealth relies on Commonwealth v. Hicks for the proposition that a dismissal without prejudice does not act as a final judgment on the merits. However, the Commonwealth reads Hicks too broadly and inconsistently with case law holding that a dismissal without prejudice is a final and appealable order. In Hicks, we merely held that an order of dismissal without any notation to the contrary would be treated as with prejudice barring subsequent prosecution of the same charge. The holding in Hicks was strictly limited to construing whether an order of dismissal without any notation to the contrary was “an adjudication upon the merits.” Hicks does not address the issue presented here.

Upon our determination that an order of dismissal without prejudice is nevertheless a final order, we must determine whether it may be vacated by the trial court and within what period of time. Where, as here, the criminal rules do not provide a time in which an action may be taken, the Rules of Civil Procedure apply. Under CR 59, a final judgment or order may be vacated only in accordance with the ten day provisions of the rule. Thereafter, the trial court loses jurisdiction to act. As such, a party has ten days after entry of a dismissal order, with or without prejudice, to move to set aside that order and continue prosecution under the original complaint, or timely appeal from the order of dismissal. As the dismissal here was without prejudice, but was nevertheless a final order, the Commonwealth could have moved to vacate it within ten days, filed a timely notice of appeal, or it could have brought the charge on new process. But it could not merely redocket the old case as the trial court had lost jurisdiction to vacate its order of dismissal. This proposition was firmly established in Stephenson v. Boswell, where we held:

The dismissal of this action, which we affirmed, terminated it. Whether the original dismissal was with or without prejudice, this proceeding has been finally disposed of.... Since it has been finally adjudicated that plaintiffs have no claim against the defendants, the trial court properly refused to redocket this controversy.

A similar holding is found in Commonwealth v. Smith, where a felony indictment was dismissed because the defendant could not be located. After several years the Commonwealth moved to redocket the case. The trial court denied the motion to redocket reasoning that it lacked the authority after an order dismissed the case. We held:

When an indictment is dismissed, unless the matter be then referred to the grand jury, it is a final order in that case. After the term at which the order is entered, the court has not the power to set it aside. Should the court or the prosecution desire to retain control of the case after the term, it may be done by an order filing the indictment away, to be redocketed on motion of the commonwealth. But, without such reservation, an unconditional dismissal is an end of that case. If, therefore, the commonwealth desires to reinstate the prosecution, it may do so by procuring another indictment, or by warrant of arrest sworn out before an examining magistrate, and then proceed as in other original prosecutions. The order dismissing the indictment, though a final order, does not bar another indictment or prosecution.

Upon the foregoing, we conclude that the order of dismissal without prejudice was a final order or judgment for purposes of CR 59 relief or appeal; that ten days after entry of the order of dismissal, the trial court lost jurisdiction to alter, amend or vacate the order; and that the Commonwealth’s remedy was by appeal from the order of dismissal or the timely bringing of a new charge and the issuance of new process.

For the forgoing reasons, we affirm the Court of Appeals.

COOPER, KELLER, and SCOTT, JJ., concur.

JOHNSTONE, J., dissents by separate opinion in which GRAVES and WINTERSHEIMER, JJ., concur.

Dissenting Opinion by

Justice JOHNSTONE.

Respectfully, I dissent. Bonita Clarke and her son were allegedly assaulted by the Appellee, Robert Sowell, on August 2, 1999. Ms. Clarke filed a criminal complaint on September 15 and a warrant for Appellee’s arrest was issued. After successfully avoiding apprehension for eight months, Appellee was arrested on May 17, 2000. After arraignment, the case was set for trial on May 30, 2000, and continued on that date for a trial date of June 9, 2000. On June 9, the district judge denied the Commonwealth’s motion for a continuance and dismissed the case without prejudice over the prosecutor’s objections. The majority opinion states that the reason for the dismissal was that Ms. Clarke “did not respond to the subpoena for her attendance or appear for either trial date.” In fact, however, Ms. Clarke and her child had been living at the Center for Women and Families, an agency designed to assist victims of domestic violence, and as such she was not available for service of process.

After discovering that Ms. Clarke was in the shelter, the Commonwealth requested that the case be redocketed for July 12, 2000. On that date the district court continued the case until August 7, in order to have the Appellee transported from the county jail where he was incarcerated on other charges. Thereafter, Appellee filed a motion to dismiss on grounds that the statute of limitations for a misdemeanor had run. The district court granted the motion, the circuit court reversed the district court, and the Court of Appeals reversed the circuit court. We now consider the case on discretionary review.

The majority opinion first addresses the meaning of a dismissal “without prejudice” and concludes that it is a final order. CR 54.01 defines a final order as an order “adjudicating all the rights of all the parties in an action or proceeding....” It cites as precedent for this holding, Wood v. Downing’s Adm’r., a 104 year old civil case, in which it was determined that the circuit court had no jurisdiction due to a medical malpractice action having been filed in the wrong county.

With all due deference to the past, I choose to rely upon the case of Commonwealth v. Hicks, cited by the dissenter in the Court of Appeals opinion. In Hicks, Chief Justice Lambert stated:

CR 41.02(3), relating to involuntary dismissals and the effect thereof, is as follows:
Unless the court in its order for dismissal otherwise specifies, a dismissal under this rule, and any dismissal not provided for in Rule ⅛1, other than a dismissal for lack of jurisdiction, for improper venue, for want of prosecution under Rule 77.02(2), or for failure to join a party under Rule 19, operates as an adjudication upon the merits. (Emphasis in original.)
Unmistakably, this means that without a notation to the contrary, i.e. “without prejudice” or “with leave to refile,” any dismissal, other than a dismissal for lack of jurisdiction, improper venue, lack of prosecution under CR 77.02(2), or failure to join a party under CR 19, results in an adjudication upon the merits. Polk v. Wimsatt, Ky.App., 689 S.W.2d 363 (1985). Said otherwise, a judgment or order of dismissal, except on the grounds noted in the Rule, must be construed as being with prejudice unless it says otherwise. This construction is entirely consistent with the views expressed in 7 Bertelsman and Philips, Kentucky Practice, CR 41.02, emt. 6 (4th ed.1984), and serves the purpose of finality. Parties should be forewarned that unless one of the four exceptions clearly applies, one who wishes to preserve the viability of a dismissed claim should see that the proper notation is affixed by the trial court or seek appellate relief. (Emphasis added.)

In my opinion, it is patently clear that a dismissal without prejudice is not a final order or judgment for purposes of the finality rule of CR 59.05, and no authority cited in the majority opinion compels a conclusion otherwise. A dismissal without prejudice, as we are dealing with in the case at bar, does not adjudicate all of the rights of the parties. Indeed, it does not adjudicate any rights.

Thus, we are finally confronted with the issue of whether, for purposes of KRS 500.050(2), the prosecution of the misdemeanor offenses at hand were commenced within one year after they were committed. As noted above, once the location of the prosecuting witness and her child were obtained, the Commonwealth moved to “redocket” the case and noticed the Appel-lee of its intention to prosecute the misdemeanor charges. I agree with the seasoned circuit judge below who concluded:

[Tjhis case was “commenced” within the one (1) year time period set out in KRS 500.050(2). The fact that it was dismissed without prejudice and later “re-docketed” does not mean that the statute has run. The intention of the statute was fulfilled in that Mr. Sowell had notice of the charges against him within the one (1) year time period. In fact, he was aware that the Commonwealth was re-docketing the action within the one (1) year time frame for misdemeanors. This Court can find no significant difference in bringing a new action versus moving the court to re-docket the ease.

Legal precedent, public policy, or common sense do not persuade otherwise. I would reverse the Court of Appeals and affirm the Opinion and Order of the Jefferson Circuit Court.

GRAVES and WINTERSHEIMER, JJ., join this dissenting opinion.

      . (8th ed.2004).

      . Wood v. Downing's Admr., 110 Ky. 656, 62 S.W. 487, 488 (1901); C.I.T. Corp. v. Teague, 293 Ky. 521, 169 S.W.2d 593, 593 (1943); Grubbs v. Slater & Gilroy, Inc., 267 S.W.2d 754, 755 (Ky.1954).

      . 110 Ky. 656, 62 S.W. at 488.

      . Signer v. Arnold, 436 S.W.2d 493 (Ky.1969).

      . 869 S.W.2d 35 (Ky.1994).

      . See n.4.

      . Hides at 37.

      . Id. at 38.

      . RCr 13.04. See Silverburg v. Commonwealth, 587 S.W.2d 241, 244 (Ky.1979).

      . Commonwealth v. Gross, 936 S.W.2d 85 (Ky.1997).

      . 319 S.W.2d 457, 457 (Ky.1959).

      . Commonwealth v. Smith, 140 Ky. 580, 131 S.W. 391, 392 (1910).

      . Id.

      . Id.

      . 110 Ky. 656, 62 S.W. 487, 488 (1901).

      . 869 S.W.2d 35, 38 (Ky.1994).


author: Justice GRAVES.

text:
    COMMONWEALTH of Kentucky, ex rel., Gregory D. STUMBO, Attorney General, Appellant, v. Greg CRUTCHFIELD, Appellee.
    No. 2003-SC-0483-DG.
    Supreme Court of Kentucky.
    March 17, 2005.

      Gregory D. Stumbo, Attorney General, Stuart W. Cobb, Assistant Attorney General, Civil & Environmental Law Division, Office of the Attorney General, Frankfort, Counsel for Appellant.
    Winter Huff, Law Offices of John G. Prather, Somerset, Jeffrey S. Walther, Walther Roark Gay & Todd, PLC, Lexington, Counsel for Appellee.
   Opinion of the Court by

Justice GRAVES.

Appellee, Greg Crutchfield, was elected to the Garrard County Board of Education on November 7, 2000, and was administered the oath of office in January, 2001. Appellee’s uncle was employed as a bus driver for the Garrard County School District at the time of Appellee’s election.

Pursuant to KRS 160.180, the Office of the Attorney General initiated an ouster action against Appellee. KRS 160.180(2)(i) states in relevant part that, “No person shall be eligible to membership on a board of education ... who has a relative as defined in subsection (1) of this section employed by the school district and is elected after July 13, 1990.” KRS 160.180(1) defines ‘relative’ as a father, mother, brother, sister, husband, wife, son, daughter, aunt, uncle, son-in-law, and daughter-in-law. Under the plain language of KRS 160.180, Appel-lee was disqualified from holding office.

However, the Garrard Circuit Court denied the Attorney General’s ouster petition on the parties’ cross-motions for summary judgment and found for Appellee. The circuit court held that the statute was unconstitutional because there is no rational basis for the difference in classification for aunts and uncles, but not nieces and nephews. The circuit court noted our opinion in Chapman v. Gorman, 839 S.W.2d 232 (Ky.1992), but found that its holding did not prevent finding a specific provision of KRS 160.180 unconstitutional. The Court of Appeals affirmed. We granted discretionary review and reverse.

I.

The initial inquiry is to determine what standard of scrutiny applies when testing the constitutionality of KRS 160.180. Kansas Public Employees Retirement System v. Reimer & Koger Associates, Inc., 261 Kan. 17, 927 P.2d 466 (1996). Governmental classifications that do not target suspect classes or groups or fundamental interests are subject only to rational basis review. Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 108 S.Ct. 2481, 101 L.Ed.2d 399 (1988). The challenged statute does not affect a suspect class. Id. It does not inflict injury to Appellee’s right to candidacy, because no such constitutional status exists. Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972). Therefore, a rational basis test is the appropriate constitutional standard.

The United States Supreme Court in Gulf, Colorado & Santa Fe Railway Co. v. Ellis, 165 U.S. 150, 17 S.Ct. 255, 41 L.Ed. 666 (1897), first articulated the rational basis test under the Equal Protection Clause. The Court stated that, “it is not within the scope of the Fourteenth Amendment to withhold from states the power of classification[.]” Id. at 155, 17 S.Ct. at 256. However, it must be based upon some reasonable ground — some difference which bears a just and proper relation to the attempted classification— and not a mere arbitrary selection. Id.

A person challenging a law upon equal protection grounds under the rational basis test has a very difficult task because a law must be upheld if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980). Under rational basis review, the section defining ‘relative’ in KRS 160.180 comes to us bearing a strong presumption of validity. F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). We will not invalidate on equal protection grounds legislation which we simply deem unwise or unartfully drawn. Fritz, supra. Despite the parties’ arguments detailing the legislature’s wisdom and purposes for drafting the definition of ‘relative,’ the General Assembly need not articulate its reasons for enacting the statute, and this is particularly true where the legislature must necessarily engage in a process of line drawing. Fritz, supra, at 179, 101 S.Ct. at 461. In fact, “[i]t is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature. A legislative choice, under the rational basis test, will not be subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.” Beach, supra, at 315, 113 S.Ct. at 2102. We will accept at face value contemporaneous declarations of governmental purposes, or in the absence thereof, rationales construed after the fact, unless our examination of circumstances forces us to conclude that they could not have been a goal of the classification. Barket, Levy & Fine, Inc. v. St. Louis Thermal Energy Corp., 21 F.3d 237 (8th Cir.1994). Our General Assembly, under the Equal Protection Clause, has great latitude to enact legislation that may appear to affect similarly situated people differently. Chapman, supra, at 239 (quoting Clements v. Fashing, 457 U.S. 957, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982)).

Perhaps most important to note is that the legislature, “may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind.” Commonwealth v. Fulkerson, 761 S.W.2d 631, 633 (Ky.App.1988) (quoting Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955)). Even though the General Assembly could have furthered the underlying purpose more completely, perhaps by including ‘niece’ and ‘nephew in the definition of relative, a conclusion that the method it chose is unconstitutional is not necessarily warranted.

The next step is to identify a legitimate government purpose which the enacting General Assembly could have been pursuing. Haves v. City of Miami, 52 F.3d 918 (11th Cir.1995). In this case, it is clear that the purpose of KRS 160.180 is to eliminate both the existence and the appearance of nepotism. In Rose v. Council for Better Education, Inc., 790 S.W.2d 186 (Ky.1989), we declared that education is a basic fundamental right in Kentucky, guaranteed by Section 183 of the Kentucky Constitution. We further stated that our schools shall be monitored by the General Assembly to ensure that they are operated with no waste, no duplication, no mismanagement, and with no political influence. Id. at 212-13. We noted that waste and mismanagement could include improper nepotism, favoritism and misallo-cation of school monies, and that if such inadequacies exist, they must be eliminated. Id. at 193. The General Assembly, in response to Rose, enacted the Kentucky Educational Reform Act (KERA) in 1990. KERA, in essence, was a policy decision by the General Assembly to restructure the state-wide educational system. Removing nepotism is a legitimate state interest. In addition, Appellant points out several conceivable reasons why the General Assembly would have excluded nieces and nephews in the definition of ‘relative.’ These include the need to retain young, qualified persons in rural Kentucky for employment and that nepotism in favor of aunts and uncles was a greater problem than nepotism in favor of nieces and nephews.

Lastly, we must ask whether a rational basis exists for the General Assembly to believe that the legislation would further the government purpose. Haves, supra, at 922. As long as reasons for the legislative classification may have been considered to be true, and the relationship between the classification and the goal is not so attenuated as to render the distinction arbitrary or irrational, the legislation survives rational basis scrutiny. Id. at 922.

In this case, the inclusion of aunt/uncle in the definition of ‘relative’ undoubtedly furthers and rationally promotes the governmental goal of eliminating nepotism. We cannot say that the legislature was acting irrationally by not including niece/nephew in the definition of relative. When formulating the definition of ‘relative,’ the General Assembly had to draw the line somewhere. The General Assembly is under no constitutional obligation to craft perfectly sensible statutes. The classification need not be the least restrictive means of achieving a permissible end, nor must it be the fairest or best means that could have been used. Robinson v. Marshall, 66 F.3d 249 (9th Cir.1995). It is not the function of the courts to require enactment of better laws, so long as the tenets of the Equal Protection Clause are upheld. Many provisions in KERA, including KRS 160.180, serve to legislatively eliminate areas which were once fertile ground for favoritism and/or nepotism to take root. Chapman, supra, at 235. The structure of KRS 160.180 and its definition of ‘relative’ bears a rational relationship to the elimination of nepotism, and therefore satisfies constitutional scrutiny.

Accordingly, the decision of the Court of Appeals is reversed and the case is remanded to the Garrard Circuit Court for entry of judgment consistent with this opinion.

All concur.

      . Another elected member of the Garrard County Board of Education, Gary Oliver, has a niece who is employed as a classified employee (office worker) in the Garrard County School District and he is not disqualified from office.

      . Although not directly at issue in the case at bar, the circuit court also held KRS 160.380(2)(f) unconstitutional under the same analysis.

      .The circuit court relied on the expert opinion of Dr. Stephan Wilson. Dr. Wilson testified via affidavit that the aunt/uncle and niece/nephew relationship is within the same degree of consanguinity and that there is no rational reason why such a distinction should be made when attempting to eliminate nepotism.

      . The Fourteenth Amendment provides in part, "No state shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. CONST, amend. XIV.

      . Section 183 provides that: "The General Assembly shall, by appropriate legislation, provide for an efficient system of common schools throughout the State.”