author: WINTERSHEIMER, Justice.

text:
    Timothy Marteves TAYLOR, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2003-SC-0850-DG.
    Supreme Court of Kentucky.
    Jan. 19, 2006.

      V. Gene Lewter, Fayette County Legal Aid Inc., Lexington, Counsel for Appellant.
    Gregory D. Stumbo, Attorney General, David A. Smith, Assistant Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.
   WINTERSHEIMER, Justice.

This appeal is from an opinion of the Court of Appeals which affirmed a judgment based on a conditional guilty plea entered by Taylor to one count of trafficking in a controlled substance and one count of possession of marijuana. He was sentenced to five years for the trafficking charge and twelve months for the possession offense, the sentences to run concurrently for a total of five years in prison.

The question presented is whether the circuit judge erred by denying the motion by Taylor to suppress his statements to the police and the evidence found on his person.

Police received information from a confidential source that Taylor was in possession of crack cocaine. The informant, who had proven reliable on prior occasions, gave the police a detailed description of Taylor’s physical appearance, clothing and whereabouts. The officers went to the location in search of the person who had cocaine. They saw Taylor and observed that he matched the physical description of the suspect. As the officers approached him, Taylor moved in the opposite direction, occasionally making furtive glances at the officers. Eventually, the officers confronted Taylor next to a wall and handcuffed him.

The officers were in an area known for drug trafficking activity and they were cognizant of the fact from prior experiences that there were multiple escape routes. One of the police officers testified that Taylor was restrained because they feared he was a flight risk. After handcuffing Taylor, the officers advised him that he was not under arrest and that they had been told he possessed drugs. At that point, Taylor voluntarily admitted to the officers that he had cocaine and marijuana in his pockets. From the time he was handcuffed until the time he made the statement, approximately ten to fifteen seconds elapsed. The police then arrested Taylor, searched him and found the drugs on his person. He was read his Miranda rights after being formally arrested and he refused to answer any questions.

The grand jury indicted Taylor on one count of trafficking in a controlled substance and one count of possession of marijuana. Taylor moved to suppress his statements and the evidence. The circuit judge conducted a suppression hearing and overruled the motion. He found that the police had sufficient basis for initiating the contact with Taylor and securing him for his protection as well as their own, and that the officers were not interrogating Taylor. Following the denial of his suppression motion, Taylor entered a conditional guilty plea to the charges and was sentenced to a total of five years. The Court of Appeals affirmed the judgment and this Court accepted discretionary review.

Taylor argues that the circuit judge erred by overruling his motion to suppress his statements made to police and the evidence found on him following his custodial statement made without Miranda warnings. He asserts that he was not free to leave and the police did not have the right to make accusations in order to get an incriminating statement from him. Taylor admits that no specific questions were asked of him, but he argues that the statements made by the police were designed to elicit an incriminating response. He contends that although the officers did not frame their inquiry in the form of a question, the term “interrogation” under Miranda refers not only to express questioning but also to any words or actions on the part of the police that they should know are reasonably likely to elicit an incriminating response. Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). We disagree with Taylor’s argument.

The circuit judge acted correctly in denying the motion to suppress the incriminating statements and the physical evidence that was found as a result of that statement. Taylor was handcuffed to allow officers to conduct an investigative stop in an area which they knew had multiple escape routes. The handcuffs were used only as a means of reducing the mobility of Taylor. The circumstances of the furtive glances given by Taylor as he walked away from the officers, as well as the escape route possibilities, caused them to consider him a serious flight risk. He was not placed in custody as that phrase has been generally used in the context of Miranda cases. As the officer began to tell Taylor why he was being stopped, Taylor spontaneously interrupted him stating that he had crack cocaine and marijuana in his pockets.

Innis, supra, certainly does not support Taylor’s position. Innis was arrested following the robbery of a taxicab driver. He was advised of his Miranda rights and placed in a vehicle with three other police officers. While en route to the station, one of the officers initiated a conversation with a second officer. He indicated to him that he frequents this area on patrol and that because a school for handicapped children is nearby, it would be tragic if one of them found a loaded weapon. The second officer shared the concerns of the first officer. Innis interrupted the conversation and told the officers to turn the car around so he could show them where the gun was located. The police returned to the scene of the arrest where a search for the shotgun was in progress. Innis was given his Miranda warnings again and stated that he understood those rights, but that he wanted to get the gun out of the way because of the children in the area. He then led police to the weapon. The court held that Innis was not subjected to express questioning, nor its functional equivalent.

The evidence indicates that the statements made by Taylor were not in response to any police statement reasonably calculated to elicit an incriminating response. Miranda requires an individual who is stopped to be apprised of his/her rights only in the context of a custodial interrogation. Here, there was no custodial interrogation. See Commonwealth v. Vanover, 689 S.W.2d 11 (Ky.1985), cert, denied 474 U.S. 953, 106 S.Ct. 322, 88 L.Ed.2d 305 (1985). Cf. Denny v. Commonwealth, 670 S.W.2d 847 (Ky.1984), overruled on other grounds Commonwealth v. Burge, 947 S.W.2d 805 (Ky.1996).

The findings of fact made by the circuit judge are supported by substantial evidence and are conclusive pursuant to RCr 9.78. Taylor has not demonstrated that the findings of fact are otherwise. Taylor was not in custody for Miranda purposes simply because he was handcuffed and detained in order to prevent his flight until the investigation was completed. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), holding that brief investigatory stops by police are permitted when there is reasonable articula-ble suspicion that criminal activity is afoot. See also United States v. Foster, 376 F.3d 577 (6th Cir.2004), which held that the use of handcuffs does not exceed the bounds of a Terry stop, so long as the circumstances warrant that precaution. Telling an individual of the reason he is being stopped by police is not an interrogation. To consider such actions or statements by police to be an interrogation would force the police to work in silence, detaining people without even informing them of what is going on. The statement made by police informing Taylor as to why he was being detained was not reasonably likely to elicit an incriminating response.

The opinion of the Court of Appeals is affirmed.

All concur.


source: Caselaw Access Project

author: Justice GRAVES.

license: Public Domain

text:
    LOWE’S # 0507, Appellant, v. James A. GREATHOUSE; Hon. Lawrence F. Smith, Administrative Law Judge; and Workers’ Compensation Board, Appellees.
    No. 2005-SC-0515-WC.
    Supreme Court of Kentucky.
    Jan. 19, 2006.

      Charles E. Lowther, Boehl, Stopher & Graves, LLP, Lexington, ICY, for Appellant.
    Kenneth B. Fouts, II, Bussey & Fouts, Lexington, KY, for Appellee, James A. Greathouse.
   OPINION OF THE COURT

KRS 842.730(l)(c)l permits an injured worker’s income benefit to be tripled if the worker “does not retain the physical capacity to return to the type of work that the employee performed at the time of injury.” The claimant was injured while working for the defendant-employer. Although he remained physically capable of performing that job, he lacked the physical capacity to return to his concurrent job for a different employer. Convinced that KRS 342.780(l)(c)l refers to work performed in the employment in which the injury occurred, an Administrative Law Judge (ALJ) refused to enhance the claimant’s income benefit. The Workers’ Compensation Board affirmed, but the Court of Appeals relied upon Highland Heights Volunteer Fire Department v. Ellis, 160 S.W.3d 768 (Ky.2005), and reversed. We reverse.

In 1987, the claimant began working full time for Lowe’s, as a salesperson in one of its home-improvement stores. Since 1989, he had also worked as a printing press operator for Mini-Data Forms. It is undisputed that the physical demands of the latter job were different from those of his job for Lowe’s and that Lowe’s knew of the concurrent employment.

The claimant injured his wrist in July, 2001, while working for Lowe’s, and later underwent fusion surgery. An ALJ determined subsequently that the injury was partially disabling and resulted in a 12% impairment. At the time, the claimant’s average weekly wage from Lowe’s was $420.00; his average weekly wage from Mini-Data Forms was $497.75; but KRS 342.730(l)(b) limited the maximum average weekly wage for calculating his partial disability benefit to $397.00. The ALJ determined that although the injury prevented the claimant from returning to his work for Mini-Data Forms, he was ineligible for the “3 multiplier” permitted by KRS 342.730(l)(c)l because he had returned to his work for Lowe’s, earning the same or greater wages.

In concluding that the decision in the present case was erroneous, the Court of Appeals relied upon Highland Heights Volunteer Fire Department v. Ellis, supra, which concerned a volunteer fireman who was injured while fighting a fire. After the injury, he was able to return to his paid employment as a licensed stockbroker but lacked the physical capacity to return to firefighting. On that basis, he asserted that he was entitled to an enhanced award, but this Court disagreed.

The Ellis court noted that individuals who do not work under a “contract of hire” are not covered by the Act; however, KRS 342.640(3) provides coverage for volunteer fire, police, and emergency personnel by deeming them to be employees of the political subdivision that they serve. Under KRS 342.140(3), the average weekly wage for calculating such an individual’s benefits is “the average weekly wage in their regular employment.” The court noted that an individual who is injured while performing volunteer fire, police, or emergency work but has no paid employment will receive no income benefit. It determined, therefore, that the purpose of KRS 342.640(3) and KRS 342.140(3) is to compensate those individuals who do have regular (¿a, paid) employment for a loss of the ability to perform that work. Therefore, the work to be considered for the purpose of KRS 342.730(l)(c)l is not the gratuitous work but “the individual’s regular work, the work from which their average weekly wage is derived.” Id., 160 S.W.3d at 770. Mr. Ellis returned to his regular work as a stockbroker, therefore, he was not entitled to an enhanced benefit.

The present case does not involve an injury that occurred in a gratuitous employment and caused a physical incapacity to perform that employment. It involves two paid employments. Yet, the Court of Appeals applied the cited language from Ellis literally, without considering the context in which it was used. As a result, the court determined that the claimant was entitled to have both of his employments considered for the purposes of KRS 342.730(l)(c)l because KRS 342.140(5) included his wages from both. We disagree.

As amended effective July 14, 2000, KRS 342.730(l)(c) provides:

1. If, due to an injury, an employee does not retain the physical capacity to return to the type of work that the employee performed at the time of injury, the benefit for permanent partial disability shall be multiplied by three (3) times the amount otherwise determined under paragraph (b) of this subsection, but this provision shall not be construed so as to extend the duration of payments; or
2. If an employee returns to work at a weekly wage equal to or greater than the average weekly wage at the time of injury, the weekly benefit for permanent partial disability shall be determined under paragraph (b) of this subsection for each week during which that employment is sustained. During any period of cessation of that employment, temporary or permanent, for any reason, with or without cause, payment of weekly benefits for permanent partial disability during the period of cessation shall be two (2) times the amount otherwise payable under paragraph (b) of this subsection. This provision shall not be construed so as to extend the duration of payments.
3. Recognizing that limited education and advancing age impact an employee’s post-injury earning capacity, an education and age factor, when applicable, shall be added to the income benefit multiplier set forth in paragraph (c)l. of this subsection. If at the time of injury, the employee had less than eight (8) years of formal education, the multiplier shall be increased by four-tenths (0.4); if the employee had less than twelve (12) years of education or a high school General Educational Development diploma, the multiplier shall be increased by two-tenths (0.2); if the employee was age sixty (60) or older, the multiplier shall be increased by six-tenths (0.6); if the employee was age fifty-five (55) or older, the multiplier shall be increased by four-tenths (0.4); or if the employee was age fifty (50) or older, the multiplier shall be increased by two-tenths (0.2).
4. Notwithstanding the provisions of KRS 342.125, a claim may be reopened at any time during the period of permanent partial disability in order to conform the award payments with the requirements of subparagraph 2. of this paragraph.

KRS 342.730(l)(b) sets forth the basic income benefit for partial disability. When KRS 342.140(5) and KRS 342.730(l)(b) are considered together, it is apparent that the purpose for including concurrent earnings in the average weekly wage does not extend to all partially disabled workers who perform concurrent jobs. We reach that conclusion because although KRS 342.140(5) permits earnings from a concurrent employment to be included in the average weekly wage, KRS 342.730(l)(b) places a cap on the average weekly wage from which a partial disability benefit may be calculated. It appears, therefore, that the purpose for KRS 342.140(3) is more specific, i.e., to account more nearly for the earning capacity of those who perform more than one low-wage or part-time job.

KRS 342.730(l)(c)l provides a triple benefit for a loss of the physical capacity to perform “the type of work that the employee performed at the time of injury.” It does not refer to the capacity to perform other types of work. At the time of his injury, the claimant was working in retail sales for Lowe’s. His work for Mini-Data Forms was to operate a printing press. Absent an explicit indication that the legislature intended for other types of work to be considered for the purposes of KRS 342.730(l)(c)l, we are not convinced that he is entitled to a triple benefit based on a loss of the physical capacity to operate a printing press.

The decision of the Court of Appeals is reversed.

COOPER, JOHNSTONE, ROACH, and WINTERSHEIMER, JJ., concur.

GRAVES, J., dissents by separate opinion in which LAMBERT, C.J., and SCOTT, J., join.

Dissenting opinion by

Justice GRAVES.

Most recently, a majority of this Court reiterated the underlying remedial purpose of the Workers’ Compensation Act:

Workers’ compensation is a form of social welfare legislation. Its purpose is to require employers to provide necessary medical treatment for workers who are injured in the course of their employment and to replace some of the income they will lose, thereby enabling them to meet their own essential needs and those of their dependents.

Keith v. Hopple Plastics, 178 S.W.3d 463 (Ky.2005) (rendered Nov. 23, 2005, but not yet final). Long standing case law has emphasized that the Act is to be liberally construed in order to achieve its humanitarian design. Because the majority’s holding in this case is inconsistent with the plain meaning commanded by the relevant statutes and the objectives set forth above, I respectfully dissent.

Appellee, James Greathouse, earned his income for many years through concurrent employment. As we observed in Keith v. Hopple Plastics, supra, it is not unusual for workers to derive their income from more than one source (or in this case, from more than one employer) in order to make a living. Indeed, the Act anticipates and endorses this concurrent employment scenario by including all such wages within the computation of an employee’s average weekly wage. KRS 342.140(5). This average weekly wage computation, in turn, was used to determine the amount of permanent partial disability benefits to which Appellee was entitled. KRS 342.730(l)(b).

Although concurrent employment was expressly endorsed and considered when computing Appellee’s average weekly wage (and, in turn, his base permanent partial disability benefits pursuant to KRS 342.730(l)(b)), this Court unreasonably concludes that this same concurrent employment shall not be considered when determining whether he is entitled to have his base permanent partial disability benefits enhanced. The sole reason given by the majority for denying Appellee’s entitlement to this enhancement is that KRS 342.730(l)(b) limits the amount of average weekly wage any employee may claim as partial disability benefits to no more than 75% of the average weekly wage of the state. Ante, at 525. The majority then reasons that since such a low cap has been placed on the amount of benefits that any employee is entitled to claim, KRS 342.140’s specific endorsement and consideration of concurrent employment must be limited to include only “low-wage” or “part-time” workers. Ante, at 527.

The majority’s analysis cannot be reasonably supported, however, when it is viewed in light of the entire Act. First, although the amount of benefits one may be entitled to under the Act are capped (or otherwise considered low by some living standards), no injured worker may be disqualified from collecting the capped benefits simply because his income at the time of injury exceeded the cap. Second, and more importantly, the cap imposed by KRS 342.730(l)(b) has no relevancy whatsoever to whether an employee’s benefits therein may be enhanced pursuant to KRS 342.730(l)(c)(l). Rather, the relevant question under KRS 342.730(l)(c)(l) is whether the employee retains “the physical capacity to return to the type of work that the employee performed at the time of injury.” When an injured employee lacks the physical capacity to return to the type of work that has previously enabled him to meet his “own essential needs and those of [his] dependents,” Keith v. Hopple Plastics, supra, he is entitled to receive an enhanced benefit to account for this loss of earning capacity. See Marsh v. Mercer Transp., 77 S.W.3d 592, 595 (Ky.2002).

In this case, Appellee depended on both of his jobs for sustenance; however, a workplace injury at the site of one of these jobs prevented his working at the other site. Although Appellee has lost the capacity to earn a substantial portion of his livelihood, he is being penalized for continuing to perform what work he is able to do. The majority’s holding results in a disproportionate sacrifice on those least able to afford it in spite of the specific and clear language set forth in KRS 342.140(5), which recognizes and accommodates the need for some employees to maintain two or more jobs in order to earn a decent and respectable living.

The majority’s alternate argument is that the language utilized in KRS 342.730(l)(c)(l) only applies to workers who are unable to return to the employment in which the injury occurred. Thus, since Appellee’s injury did not prevent him from returning to Lowes (the job in which the injury occurred), he is barred from receiving an enhanced benefit to account for his loss of earnings capacity in the concurrent employment (the printing press job). When considered in light of the entire Act, this interpretation similarly reveals itself to be misplaced.

We have previously said that “[t]he purpose of KRS 342.140 is to estimate the injured worker’s earning capacity.” Marsh, supra at 595. The injured worker’s overall earning capacity is, in turn, employed to determine the total benefits the injured worker is entitled to receive under KRS 342.730. Consistent with their integrated roles, KRS 342.140’s focus on an employee’s overall earning capacity is also reflected in KRS 342.730(l)(c)(l). The statute says nothing about the employee being entitled to an enhanced benefit only if he is unable to return to the specific employer or employment in which he was injured, but rather it simply requires that the injured worker be unable to return “to the type of work that the employee performed at the time of injury.” Thus, when the view commanded by the plain language of its companion statute, KRS 342.140, is considered in conjunction with the plain language of the statute itself, the majority’s view of KRS 342.730(l)(c)(l) is clearly too narrow as it unfairly deflates benefits, thus penalizing those least able to afford a loss of income.

When all the relevant statutes are read in context of the entire Act and in light of the humanitarian and remedial purposes of the Worker’s Compensation Act, I can find no valid grounds on which to justify the majority’s decision. Unfortunately, the result in this case is not only erroneous as a matter of law, but also distorts the purpose and intent of the Act. Accordingly, I must respectfully dissent.

LAMBERT, C.J., and SCOTT, J., join this dissenting opinion.

      . Although KRS 342.140(5) permits a worker’s earnings from concurrent employments of which the defendant-employer has knowledge to be included in an injured worker’s average weekly wage, KRS 342.730(l)(a) and (b) place a cap on the average weekly wage from which benefits may be calculated.

      . Under KRS 342.730(l)(b), the maximum average weekly wage to be used when calculating a partial disability benefit is 75% of the state’s average weekly wage. In July, 2001, that amount was $397.00, which was less than the claimant’s earnings from either job, alone. Therefore, despite KRS 342.140(5), his earnings from Mini-Data Forms had no effect on the benefit that was calculated under KRS 342.730(l)(b).

      . The majority notes that as of July 2001, the state’s maximum permanent partial disability benefit of $397 was based on 75% of the state's average weekly wage of $530.07.

      . It cannot be said that compensating Appel-lee is unfair to the employer in this instance since it is undisputed that Lowe’s had knowledge of Appellee’s concurrent employments and of KRS 342.140(5).


author: TAYLOR, Judge.

text:
    HARRODSBURG INDUSTRIAL WAREHOUSING, INC., and Riley & Peavler, LLC, Appellants, v. MIGS, LLC and Harrodsburg/Mercer County Industrial Development Authority, Appellees.
    No. 2003-CA-002544-MR.
    Court of Appeals of Kentucky.
    Feb. 25, 2005.
    Discretionary Review Denied by Supreme Court Feb. 15, 2006.

      G. Cliff Stidham, Lynn C. Stidham, Stid-ham & Associates, P.S.C., Lexington, KY, for appellants.
    Bradley S. Guthrie, Harrodsburg, KY, for appellee, MIGS, LLC.
    Spencer D. Noe, Bowles, Rice, McDavid, Graff & Love, LLP, Lexington, KY, for appellee, Harrodsburg/Mercer County Industrial Development Authority.
    Before SCHRODER, TAYLOR, and VANMETER, Judges.
   OPINION

TAYLOR, Judge.

Harrodsburg Industrial Warehousing, Inc. and Riley & Peavler, LLC (collectively referred to as Harrodsburg Warehousing) bring this appeal from a December 21, 2000, summary judgment of the Mercer Circuit Court dismissing Count IV of the complaint and an October 30, 2003, judgment dismissing Counts II and III of the complaint. We affirm.

On July 5, 1999, Harrodsburg Warehousing entered into a Real Estate Sale and Purchase Agreement (Purchase Agreement) with Harrodsburg/Mercer County Industrial Development Authority (Industrial Authority) for the purchase of a twenty-two acre tract of land located within the Gene C. Royalty Industrial Park (Industrial Park). The purchase price for the twenty-two acres was $220,000.00. The Industrial Authority was required to deliver fee-simple title to Harrodsburg Warehousing on or before thirty days from the date of execution of the Purchase Agreement. Harrodsburg Warehousing sought to develop a warehouse facility upon the property and intended to lease the property to its customer, Bay West Paper Company (Bay West).

On July 21, 1999, MIGS, LLC (MIGS) filed Civil Action No. 99-CI-00194 against the Industrial Authority. MIGS had purchased property in the Industrial Park in March 1998. MIGS alleged the Industrial Authority represented to MIGS that no other land in the Industrial Park would be sold for commercial and/or industrial warehousing space. MIGS also filed a Notice of Lis Pendens upon the twenty-two acre tract on July 28,1999.

As a result of the pending lawsuit against the Industrial Authority and the filing of the Lis Pendens, the Industrial Authority and Harrodsburg Warehousing entered into an Escrow Agreement on November 24, 1999. Under the Escrow Agreement, the Industrial Authority executed and delivered to Harrodsburg Warehousing a general warranty deed conveying fee-simple title to the twenty-two acre tract, and the purchase price ($220,000.00) was deposited into an escrow account. Harrodsburg Warehousing later recorded the deed of conveyance.

Eventually, MIGS prevailed in Civil Action No. 99-CI-00194 against the Industrial Authority. A jury determined that the Industrial Authority had committed fraud. Before the jury’s verdict in favor of MIGS, the Industrial Authority and MIGS entered into a partial settlement agreement. Under this agreement, MIGS and the Industrial Authority agreed that if MIGS prevailed at trial its only remedy would be an injunction forbidding “the use of real property held by the Industrial Authority ... for lease or sale, in any manner or form, of industrial warehousing space for a period of fifteen (15) years from the date of judgment.” Since MIGS prevailed upon its fraud claim, the circuit court entered an injunction on March 29, 2001, restricting the use of the property (including the twenty-two acre tract) in the Industrial Park in accordance with the terms of the settlement agreement.

Harrodsburg Warehousing then filed the instant action alleging, inter alia, breach of contract against the Industrial Authority and the torts of intentional interference with existing and prospective contracts against MIGS. On December 21, 2000, summary judgment was entered dismissing Harrodsburg Warehousing’s claim for breach of contract (Count IV) against the Industrial Authority. Later, on October 30, 2003, the circuit court entered judgment dismissing Harrodsburg Warehousing’s claims of intentional interference with existing and prospective contractual relations (Counts II and III). This appeal follows.

Harrodsburg Warehousing initially argues the circuit court erred by entering summary judgment dismissing its breach of contract claim against the Industrial Authority. Summary judgment is proper where there exists no material issue of fact and movant is entitled to judgment as a matter of law. Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky.1991). We believe no material issue of fact exists and resolution of this appeal thus centers upon questions of law.

Harrodsburg Warehousing specifically asserts the Industrial Authority breached the Purchase Agreement by failing to convey “[a]n unencumbered, good, marketable fee simple title, free of lien.” The Industrial Authority delivered to Har-rodsburg Warehousing a general warranty deed conveying fee-simple title to the twenty-two acre tract. Harrodsburg Warehousing recorded the deed. By accepting and recording the deed, we believe the merger doctrine operates to extinguish the Purchase Agreement.

It has been held “[u]nder the merger doctrine, upon delivery and acceptance of a deed the deed extinguishes or supercedes the provisions of the underlying contract for the conveyance of the realty.” Drees Co. v. Osburg, 144 S.W.3d 831, 832 (Ky.App.2003). Thus, the merger doctrine ordinarily extinguishes the provisions of a purchase agreement for the sale of real property upon acceptance of a deed conveying title to said property. The exceptions to the merger doctrine are fraud, mistake, or contractual agreement clearly not intended to be merged into the deed. 77 Am.Jur.2d Vendor and Purchaser § 286 (1997).

Under the facts of the case, we conclude the Purchase Agreement “merged” into the deed; hence, Harrods-burg Warehousing is precluded from maintaining a breach of contract action under the Purchase Agreement. However, we do not believe the Escrow Agreement merged into the deed. The clear language of the Escrow Agreement indicates that the parties intended this agreement to survive the delivery and acceptance of the deed. Additionally, we are of the opinion the Escrow Agreement provided the sole contractual remedy to Harrodsburg Warehousing.

It is axiomatic that interpretation of a contract is an issue of law for the court. See Cinelli v. Ward, 997 S.W.2d 474 (Ky.App.1998). Here, the Escrow Agreement was entered into by the parties in response to MIGS’s institution of Civil Action No. 99-CI-00194. As evidenced by the Escrow Agreement, the parties anticipated that the Industrial Authority might not be capable of conveying the twenty-two acre tract free of restriction and specifically provided Harrodsburg Warehousing a remedy:

Purchaser, at its option, may record the Deed prior to termination of this Escrow Agreement. If within six months from the date of this Escrow Agreement the Lis Pendens is not removed by MIGS, LLC voluntarily or by Order of the Mercer Circuit Court which is final and non-appealable, and the Property is not otherwise free and clear of all encumbrances such that good and marketable fee simple title, free of any liens and encumbrances, can be conveyed by Seller to Purchaser as required by the Purchase Agreement, Purchaser, as its option, may terminate this Escrow Agreement by written notice to all parties to this Agreement. If this Escrow Agreement is terminated by Purchaser, Purchaser shall be entitled to the escrow funds upon delivery of a deed to Seller conveying all of the interest in the Property previously conveyed by Seller to Purchaser, free and clear of any liens or encumbrances created by the Purchaser.

Since the restriction was not removed, we interpret the Escrow Agreement as providing Harrodsburg Warehousing its sole contractual remedy. The Escrow Agreement specifically provides that if the restriction was not removed Harrodsburg Warehousing had the right to “terminate” the agreement and be refunded the entire purchase price. It is patently obvious the Escrow Agreement’s singular purpose was to address the respective rights of the parties should the restriction not be removed. As to those rights, we must interpret the Escrow Agreement as being paramount and as setting forth Harrodsburg Warehousing’s sole contractual remedy in the event such restriction was not removed.

In sum, we conclude the circuit court properly granted summary judgment dismissing Harrodsburg Warehousing’s claim for breach of the Purchase Agreement.

Harrodsburg Warehousing also asserts that the circuit court committed error by entering judgment dismissing its claims of intentional interference with an existing business contract and with a prospective contractual relationship. Specifically, Harrodsburg Warehousing contends that MIGS improperly interfered with its existing contractual relationship with the Industrial Authority and with its prospective contractual relationship with Bay West.

It must be noted that MIGS filed a motion to dismiss and/or motion for summary judgment seeking to dismiss the claims of intentional interference with an existing contractual relationship and with a prospective contractual relationship. Therein, MIGS asserted that “the claims fail to state a cause of action upon which relief may be granted or there is no genuine issue of material fact, and defendants are entitled to judgment as matter of law.” MIGS attached to the motion a memorandum which included exhibits that constituted matters outside the pleadings. Where matters outside the pleadings are considered on a motion to dismiss for failure to state a claim, the motion must be treated as one for summary judgment. Ferguson v. Oates, 314 S.W.2d 518 (Ky.1958). Accordingly, we have treated the judgment as a summary judgment and undertake a review in accordance with the summary judgment standard of review.

The Restatement (Second) of Torts § 766 (1979) correctly states the legal requirements to prevail upon a claim of intentional interference with an existing contract:

One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract.

Id. (Emphasis added). The Restatement (Second) of Torts § 766B (1979) sets forth the elements necessary to establish a claim for intentional interference with a prospective contractual relation:

One who intentionally and improperly interferes with another’s prospective contractual relation (except a contract to marry) is subject to liability to the other for the pecuniary harm resulting from loss of the benefits of the relation, whether the interference consists of
(a) inducing or otherwise causing a third person not to enter into or continue the prospective relation or
(b) preventing the other from acquiring or continuing the prospective relation.

Id. (Emphasis added).

The primary issue in this appeal centers upon whether MIGS’s institution of Civil Action No. 99-CI-00194 against the Industrial Authority constituted an “improper interference” within the meaning of Restatement (Second) of Torts §§ 766 and 766B. In determining whether “interference” should be considered improper, we are guided by the factors of Restatement (Second) of Torts § 767 (1979):

(a) the nature of the actor’s conduct,
(b) the actor’s motive,
(c) the interests of the other with which the actor’s conduct interferes,
(d) the interests sought to be advanced by the actor,
(e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other,
(f) the proximity or remoteness of the actor’s conduct to the interference and
(g) the relations between the parties.

In National Collegiate Athletic Ass’n v. Hornung, 754 S.W.2d 855 (Ky.1988), our Supreme Court adopted the foregoing sections of the Restatement as being reflective of prevailing law in Kentucky. In so doing, the Supreme Court commented upon the requirement of improper interference:

From these authorities, it is clear that to prevail a party seeking recovery must show malice or some significantly wrongful conduct. In Prosser and Kee-ton on Torts § 130 (W.P. Keeton ed. 5th ed.1984), this is stated as follows:
[T]he [interference] cases have turned almost entirely upon the defendant’s motive or purpose, and the means by which he has sought to accomplish it....
[S]ome element of ill will is seldom absent from intentional interference; and if the defendant has a legitimate interest to protect, the addition of a spite motive usually is not regarded as sufficient to result in liability.

Homung, 754 S.W.2d at 859.

To demonstrate improper interference, it was incumbent upon Harrodsburg Warehousing to have asserted facts, which if true, would show that MIGS acted maliciously or engaged in wrongful conduct. The institution or threatened institution of a groundless lawsuit may, of course, satisfy such a requirement. Obviously, a groundless lawsuit may have been initiated maliciously and without good cause. However, we hold that a civil action completely and finally resolved in favor of a party cannot be, as a matter of law, considered improper interference with a plaintiffs existing or prospective business relations under Restatement (Second) of Torts §§ 766 and 766B. Indeed, a successful civil action can be neither malicious nor improper.

Harrodsburg Warehousing cites this Court to Bourbon County Joint Planning Comm’n v. Simpson, 799 S.W.2d 42 (Ky.App.1990) in support of its argument. In Simpson, the civil action was not completely and finally resolved in appellee’s favor; rather, the appeal was remanded for further proceedings. Hence, we view Simpson as distinguishable.

Accordingly, we hold that MIGS’s institution of Civil Action No. 99-CI-00194 was not, as a matter of law, improper interference with Harrodsburg Warehousing’s existing contract with the Industrial Authority or with its prospective contractual relations with Bay West. We, thus, conclude that summary judgment dismissing Counts II, III and IV of the complaint was proper.

For the foregoing reasons, the summary judgment of the Mercer Circuit Court is affirmed.

ALL CONCUR.

      . Count I of the complaint, alleging abuse of process, was dismissed by the circuit court by order dated December 27, 2000. No issues surrounding this dismissal have been raised on appeal.

      . Harrodsburg Industrial Warehousing, Inc. (Harrodsburg Warehousing) unsuccessfully attempted to intervene in Civil Action No. 99-CI-00194. The circuit court determined that Harrodsburg Warehousing had no right to intervene, and this Court affirmed the decision in Appeal No.2001-CA-001150-MR.

      . This summary judgment was interlocutory as it did not include Ky. R. Civ. P. 54.02 language.


author: MILLER, Senior Judge.

text:
    CITY OF GREENUP, Appellant, v. PUBLIC SERVICE COMMISSION; South Shore Water Works Co., Appellees.
    No. 2004-CA-001325-MR.
    Court of Appeals of Kentucky.
    July 1, 2005.
    Discretionary Review Denied by Supreme Court Feb. 15, 2006.

      John N. Hughes, Frankfort, KY, William D. Kirkland, R. Stephen McGinnis, Greenup, KY, for appellant.
    Bruce F. Clark, Margaret R. Grant, R. Benjamin Crittenden, Frankfort, KY, for appellee South Shore Water Works Co.
    Gerald E. Wuetcher, John E.B. Pinney, Frankfort, KY, for appellee Public Service Commission.
    Before COMBS, Chief Judge; GUIDUGLI, Judge; MILLER, Senior Judge.

      . Senior Judge John D. Miller sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

   OPINION

MILLER, Senior Judge.

The City of Greenup (Greenup) appeals from an order of the Franklin Circuit Court which affirmed an order of the Public Service Commission (PSC) determining (1) that the agency had authority to determine its own jurisdiction, and (2) that a valid contract had been formed between Greenup and South Shore under which Greenup was to provide wholesale water to South Shore. We agree that the PSC may determine its own jurisdiction. However, because the PSC erred in its determination that a valid contract had been formed between Greenup and South Shore, we reverse and remand the matter to the circuit court for entry of an order reversing the decision of the PSC.

BACKGROUND

Greenup is a city of the fifth class located in Greenup County, Kentucky. Kentucky Revised Statutes (KRS) 81.010(5). It owns and operates a water treatment and distribution system which provides municipal water service to approximately 2,900 customers within the city and in certain of the unincorporated areas of Greenup County. As a municipal water system, Greenup’s water system is not, in the absence of a contract to provide utility services to a regulated utility (e.g., South Shore), subject to regulation by the PSC. Simpson County Water District v. City of Franklin, 872 S.W.2d 460, 463 (Ky.1994).

South Shore is a corporation organized under the laws of the Commonwealth of Kentucky. KRS Chapter 271. South Shore owns and operates water facilities in the vicinity of South Shore, Kentucky. It distributes water to approximately 2,264 customers. South Shore is a utility subject to PSC jurisdiction. KRS 278.010(3)(c); KRS 278.040(1).

Historically, South Shore has obtained its entire water supply from a “wellfield” situated in Greenup County. Beginning in the late 1980s, South Shore began experiencing problems with the quality and quantity of water from this field. Follow-mg a study of the problem, South Shore concluded that the most feasible remedy for the problem was to purchase wholesale water from Greenup by connecting with its municipal water system.

South Shore provided copies of its study to, among others, Greenup. Thereafter, Greenup’s Mayor, Charles Veach, requested that representatives of South Shore attend a regularly scheduled City Council meeting to discuss the matter. On April 7, 1998, South Shore President, Joe Hannah, appeared before the Greenup City Council and presented an “Application for Wholesale Water Service.” The application presented a reasonably comprehensive proposal for the provisioning of water by Greenup to South Shore.

The minutes of the April 7,1998, Council meeting included the following:

Joe Hannah from South Shore Water Works presented an application to May- or and council for wholesale water service. Water to the north side of Plum Fork Hill.
A motion was made by Neil Wright and seconded by Paul Judkins to accept the application for wholesale water service from South Shore Water Works subject to engineering approval from the Division of Water and funding of Phase 6 water line extension.
Motion Carried: 6-0

Subsequent to the April 7 meeting, Greenup modified its proposed Phase VI project (an expansion program under contemplation prior to the April 7 meeting) to accommodate the increase in demand which would result from the South Shore proposal. Similarly, South Shore asserts that it implemented changes in its facilities at significant cost to accommodate the expected interconnection.

As the Phase VI project neared completion, South Shore and Greenup entered into discussions regarding a water user agreement. In November 2001 the discussions reached an impasse over the provisions of a minimum monthly bill for wholesale service. On November 28, 2001, South Shore tendered a check for $5,000.00 to Greenup as payment for all “tapping fees” related to the interconnection. Greenup refused to accept the payment.

On December 4, 2001, South Shore filed a Complaint with the PSC alleging that its April 7, 1998, Application for Wholesale Water Service and the corresponding vote of acceptance by the Greenup City Council constituted a contract for wholesale water and requested that the agency enter an order directing Greenup to provide water pursuant to its terms.

On January 11, 2002, the PSC issued an order dismissing the Complaint on the basis that South Shore had failed to present a prima facie case of the existence of a contract and, consequently, that it had no jurisdiction.

On January 28, 2002, South Shore filed an “Amended and Substituted Complaint.” The PSC ordered the City to file an answer. Following discovery, several procedural motions, and a brief procedural hearing, the matter was submitted for decision.

On July 24, 2002, the PSC changed its position and entered an order determining that it had authority to decide whether a contract had been formed between Green-up and South Shore. On the merits, the PSC determined that a contract had in fact been formed, thus giving the agency jurisdiction pursuant to KRS 278.200. The PSC ordered Greenup to file tariffs reflecting the PSC’s interpretation of their agreement.

Greenup subsequently appealed to the Franklin Circuit Court. KRS 278.410. On June 9, 2004, the Franklin Circuit Court entered an Opinion and Order affirming the decision of the PSC. This appeal followed.

PSC JURISDICTION

First, Greenup contends that the PSC lacked authority to determine its own jurisdiction by deciding whether a contract had been formed between Greenup and South Shore for the provisioning of wholesale water. Greenup contends the existence of a valid contract is an issue for judicial determination. Greenup argues that “[bjefore the Public Service Commission can assert its jurisdiction, there must be a valid contract to enforce,” and that “[t]he issue presented by South Shore is not one of rates and service, but of contract law, an issue not within the scope of the Public Service Commission’s limited jurisdiction.” KRS 278.040(2) provides as follows:

The jurisdiction of the commission shall extend to all utilities in this state. The commission shall have exclusive jurisdiction over the regulation of rates and service of utilities, but with that exception nothing in this chapter is intended to limit or restrict the police jurisdiction, contract rights or powers of cities or political subdivisions. (Emphasis added).
KRS 278.010(3)(d) exempts from the definition of a utility a city which distributes or furnishes water to the public for compensation. KRS 278.200, however, provides an exception to this exemption when a city contracts with a regulated utility (e.g. South Shore) to furnish water. Specifically, KRS 278.200 sets forth:
The commission may, under the provisions of this chapter, originate, establish, change, promulgate and enforce any rate or service standard of any utility that has been or may be fixed by any contract, franchise or agreement between the utility and any city, and all rights, privileges and obligations arising out of any such contract, franchise or agreement, regulating any such rate or service standard, shall be subject to the jurisdiction and supervision of the commission, but no such rate or service standard shall be changed, nor any contract, franchise or agreement affecting it abrogated or changed, until a hearing has been had before the commission in the manner prescribed in this chapter. (Emphasis added).

In summary, the PSC does not have jurisdiction over utility services furnished by a municipality except to the extent that those services are rendered pursuant to a contract with a utility which is regulated by the PSC. In such cases the municipality, in the matters covered under the contract, is subject to the jurisdiction of the PSC.

In this case, South Shore alleged the existence of a contract, which, if valid, would have the effect of bringing matters covered under the contract within the jurisdiction of the PSC. Greenup denied the existence of a contract. Did Greenup’s summary and manifest denial of the existence of a contract preemptively divest the PSC of jurisdiction? Or, was the PSC authorized to undertake a review of relevant circumstances and determine if a contract had been formed between the parties; thus, effectively determining for itself whether the matter is within its jurisdiction? It seems the issue is one of initial impression.

We think it a sound principle of law that a quasi-judicial agency such as the PSC, like a Court, has authority, by implication, to determine its own jurisdiction. In 2 Am.Jur.2d Administrative Law § 284 (2004), the rule applicable to this situation is stated as follows:

Absent a patent and unambiguous lack of jurisdiction, a tribunal having general subject matter jurisdiction of a case possesses authority to determine its own jurisdiction, and a party challenging that jurisdiction has an adequate remedy via appeal from its holding that it has jurisdiction. If a statute authorizes an administrative agency to act in a particular situation, it necessarily confers upon the agency authority to determine whether the situation is one in which the agency is authorized to determine the coverage of the statute — a question that cannot be initially decided by a court. However, an administrative agency’s determination as to its jurisdiction is not conclusive upon the courts; it is a judicial function finally to decide the limits of the statutory power of an administrative agency. (Citations omitted).

Under the facts presented, we are of the opinion the PSC had the authority to review the circumstances at hand and determine if it had jurisdiction over the matter on the basis a contract had been formed between Greenup and South Shore. We are not confronted with a case where there was manifestly not a contract and, perforce, the PSC patently and unambiguously lacked jurisdiction. An application for wholesale water services had been filed by South Shore with the Greenup City Council; the application had been accepted by the City Council; Greenup had incorporated the anticipated additional volume into its Phase VI plans; and Greenup had taken measures to accommodate the hookup. Hence, we are of the opinion the PSC properly undertook an analysis to determine whether a contract had been formed between Greenup and South Shore.

We are buttressed in so holding by noting that Greenup, by bringing an appeal from the PSC’s decision, has invoked the power of the Courts to review de novo the issue of whether a contract had been formed under the circumstances of this case, and has thereby obtained the judicial review it would have obtained had the case been heard in the Courts in the first instance.

Having concluded that the PSC has authority to determine its own jurisdiction, we advance to Greenup’s further argument.

CONTRACT FORMATION

Greenup contends that the PSC erroneously determined that a valid contract existed because the alleged agreement with South Shore failed to comply with the statutory procedures for cities to follow in executing contracts.

As there are no facts in dispute, we are faced with but a question of law. Accordingly, our review is de novo. Revenue Cabinet v. Comcast Cablevision of the South, 147 S.W.3d 743, 747 (Ky.App.2003).

In its July 24, 2002, order the PSC stated “[w]e find no merit in Greenup’s contention that no contract could be entered without the actions of Greenup’s mayor.” This conclusion of law, however, diametrically conflicts with KRS 83A.130(8), which provides as follows:

All ... contracts and written obligations of the city shall be made and executed by the mayor or his agent designated by executive order. (Emphasis added).

KRS 446.080(4) prescribes that in construing statutes “[a]ll words and phrases shall be construed according to the common and approved usage of language.... ” (Emphasis added). “In common or ordinary parlance, and in its ordinary signification, the term ‘shall’ is a word of command and ... must be given a compulsory meaning.” Black's Law Dictionary 1233 (5th ed.1979). Shall means shall. Vandertoll v. Commonwealth, 110 S.W.3d 789, 795-796 (Ky.2003).

We are of the opinion the PSC erred in concluding that a contract could be entered into without action by the may- or of Greenup. Pursuant to KRS 83A.130(8), a contract can only “be made” and must be executed by the mayor. The PSC’s conclusion that a contract may be formed absent action by the mayor is an erroneous conclusion of law.

Further, we construe the statute as requiring a contract entered into by a municipality to be in written format so that it may be executed by the signature of the mayor. It is uncontested that a written contract executed by the mayor does not exist in this case. This being so, it follows that no valid express contract was formed.

Moreover, KRS 83A.130(8) unambiguously categorizes the making of a contract as an executive function. KRS 83A.130(11) provides that “[t]he council shall not perform any executive functions except those functions assigned to it by statute.” The making and execution of contracts is not assigned to the city council by statute. The PSC erroneously concluded that the vote in favor of the application at the April 7, 1998, council meeting was sufficient to bind Greenup to a contract for the provisioning of wholesale water to South Shore.

The PSC determined, as a conclusion of law that, “[t]he resolution of Greenup’s City Council, duly recorded, is sufficient action to constitute a binding acceptance.” This conclusion of law conflicts with KRS 83A.130(8). Under this statute all contracts must be “made and executed by the mayor.” The PSC’s conclusion is in direct contravention of the statute.

The statutory provisions concerning the formation of a contract by a municipality must be strictly adhered to. As stated in City of Princeton v. Princeton Electric Light & Power Co., 166 Ky. 730, 179 S.W. 1074, 1079 (Ky.1915):

The laws provide how municipalities may bind themselves, and the contracts to be obligatory must be made in the manner the laws prescribe. A different rule prevails in regard to municipalities to that which governs private persons and private corporations. The persons who contract with municipal corporations must, at their peril, know the rights and powers of the officers of such municipalities to make contracts and the manner in which they must make them. Any other rule would destroy all the restrictions which are thrown around the people of municipalities for their protection by the statute laws and the Constitution, and would render abortive all such provisions. The rule in certain instances may be harsh, but no other is practical.

The foregoing principle was recognized of late in Worden v. Louisville and Jefferson County Metropolitan Sewer District, 847 F.Supp. 75 (W.D.Ky.1994).

As the statutorily mandated procedure for creating a contract by a city was not followed, a valid and enforceable contract for the provisioning of wholesale water was not formed. The PSC erred in concluding to the contrary. We accordingly reverse the agency’s order of July 24, 2002.

The PSC’s conclusion that a contract had been formed appears to have been based at least to some extent upon the conduct of the parties, which we construe as invoking the principles of contract by implication. However, it is well established that a municipality may not enter into a contract by implication. Louisville

Extension Water District v. Sloss, 314 Ky. 500, 236 S.W.2d 265 (1951).

For the foregoing reasons the judgment of the Franklin Circuit Court is reversed, and the matter is remanded for entry of an order reversing the agency’s order of July 24, 2002.

ALL CONCUR.


author: MINTON, Judge.

text:
    DISABLED AMERICAN VETERANS, DEPARTMENT OF KENTUCKY, INC. and Samuel Booher, Appellants, v. Wetonah CRABB, Appellee.
    No. 2003-CA-001388-MR.
    Court of Appeals of Kentucky.
    July 22, 2005.
    Rehearing Denied Nov. 30, 2005.

      Thomas B. Givhan, Shepherdsville, KY, for Appellant.
    Jerry L. Ulrich, New Albany, IN, for Appellee.
    Before GUIDUGLI and MINTON, Judges; EMBERTON, Senior Judge.

      . Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

   OPINION

MINTON, Judge.

Following a jury trial, the circuit court entered judgment in favor of Wetonah Crabb awarding damages in her wrongful termination and slander suit against the Disabled American Veterans, Department of Kentucky, Inc., (DAV-KY) and Samuel Booher. The DAV-KY and Booher have appealed claiming the circuit court committed specific trial errors amounting to abuse of discretion and affecting the outcome of the trial. Upon review of the whole record we must reverse and remand for a new trial because we conclude that the court erred to DAV-KY and Booher’s substantial prejudice during the trial by denying their counsel’s request to examine notes read into evidence by an important adverse witness and by instructing the jury that it could award joint damages for slander.

I. Crabb’s Employment Suit Against DAV-KY and Booher.

Crabb was employed by DAV-KY for nearly ten years. Although she served DAV-KY in several capacities during her whole tenure there, her last position was as DAV-KY’s comptroller.

On January 3, 1996, Crabb was called into Booher’s office where a confrontation ensued. What happened that day is disputed: Crabb claims Booher fired her from her position with DAV-KY, while Booher claims Crabb quit. Regardless Crabb left her employment with DAV-KY six days later.

On January 31, 1996, Crabb sued DAV-KY, Commander Robert Stambaugh, and Sam Booher, individually and in his capacity as Adjutant of DAV-KY. Crabb alleged that she was terminated without “right, cause or justification” resulting in “a breach of the contract of employment.” Crabb further alleged that she was denied “the administrative remedies provided in the Constitution and By-Laws of the DAV-KY” and that, while employed, she was “required to perform the duties of her employment in a hostile environment created by and resulting from harassment by certain male co-employees and members of management including the Defendant Boo-her.” Crabb also claimed that upon her departure from DAV-KY, Booher “made false, defamatory and slanderous accusations against [her] causing [her] embarrassment, humiliation and mental distress to her damage and detriment on that account.”

After years of motions, discovery requests, and rescheduled hearings, the case came to trial the first time in October 2000. The jury found for Crabb against the DAV-KY for wrongful termination and against Booher for slander. The jury awarded Crabb damages from DAV-KY in the amount of $31,083.33 and from Booher in the amount of $20,000.00.

Following the trial, DAV-KY and Boo-her filed a motion for judgment notwithstanding the verdict (JNOV); a motion to alter, amend, or vacate judgment; a motion for a new trial; and a motion for an amendment of the court’s judgment under CR 60.02. DAV-KY and Booher argued Crabb failed to meet her burden of proof. They also claimed that specific errors of law occurred at trial and that the verdict was not sustained by sufficient evidence.

The trial court granted a new trial. In so doing, the court ruled that an affidavit offered by the defendants should have been considered; that the jury’s verdict was supported, in part, by misleading testimony from Crabb about her divorce; and that defense counsel’s objections to evidence of slander at variance with that delineated in Crabb’s pleadings should have been sustained.

Over two years passed before the second trial. The jury in the second trial found that Crabb was wrongfully terminated from DAV-KY and awarded her $28,082.77 in damages. The jury also found that DAV-KY and Booher were jointly liable to Crabb for slander. The jury awarded her $80,000.00 in damages on the slander charges, with an additional $1,000.00 in punitive damages against Booher. DAV-KY and Booher, again, moved for judgment notwithstanding the verdict and a new trial; but the court denied the motions and signed a judgment in favor of Crabb. This appeal follows.

DAV-KY and Booher make six distinct arguments: first, that the trial court erred in failing to grant a directed verdict or judgment notwithstanding the verdict; second, that the trial court abused its discretion in the jury instruction on slander; third, that the trial court erred in refusing to permit the introduction of the minutes of the January 1996, DAV-KY board meeting; fourth, that the trial court erred by permitting the jury to consider the breach of contract claim; fifth, that the trial court abused its discretion in permitting the testimony of Crabb’s ex-husband, James Crabb; and sixth, that the court erred in its jury instructions permitting joint damages against the DAV-KY and Booher. We will discuss each argument separately.

II. DAV-KY and Booher’s Failure to Cite to the Record.

The handling of this appeal compels us to reiterate that the rules of procedure require that “errors to be considered for appellate review must be precisely preserved and identified in the lower court.” The rules further require appellate briefs to contain statements “with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner.”

The brief filed by DAV-KY and Booher lacks any reference to the record. And both sides fail to cite any pertinent Kentucky case law, statutes, or rules. In their reply brief, DAV-KY and Booher made a weak attempt to recover from this error by offering an array of references and corresponding arguments.

DAV-KY and Booher’s brief ignores the rules of procedure. But CR 61.02 does state that an insufficiently raised or preserved error may be reviewed if it constitutes “[a] palpable error which affects the substantial rights of a party....” Under this rule, “appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.” So for purposes of clarity and diligence and to protect against potential injustice, we will review the arguments made by DAV-KY and Booher.

III. Failure to Grant Motion for JNOV/New Trial.

DAV-KY and Booher first argue that the court abused its discretion by failing to grant their motion for judgment notwithstanding the verdict or a new trial. As a basis for this claim, DAV-KY and Booher contend that Crabb failed to allege the slander charges with sufficient detail in her complaint and that the court erred by allowing this issue to go to the jury. Because of these alleged errors, DAV-KY and Booher assert that the court should have granted their post-judgment motions.

CR 50.02 states:

Not later than 10 days after entry of judgment, a party who has moved for a directed verdict at the close of all the evidence may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict.... A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative.

When reviewing a trial court’s denial of JNOV, “we are to affirm ... ‘unless there is a complete absence of proof on a material issue in the action, or if no disputed issue of fact exists upon which reasonable men could differ.’ ” Likewise, “ ‘[t]he trial court is vested with a broad discretion in granting or refusing a new trial, and this Court will not interfere unless it appears that there has been an abuse of discretion.’ ”

The law of defamation differentiates between two types of slander: slander per se and slander per quod. Words are slanderous per se when they “are presumed by law actually and necessarily to damage the person about whom they are spoken.” The words themselves “must tend to expose the plaintiff to public hatred, ridicule, contempt or disgrace, or to induce an evil opinion of him in the minds of right-thinking people and to deprive him of their friendship, intercourse and society.” When there is a claim of slander per se, “there is a conclusive presumption of both malice and damage.” Therefore, “damages are presumed and the person defamed may recover without allegation or proof of special damages.”

In contrast, words that are slanderous per quod are not actionable on their face, “but may be so in consequence of extrinsic facts showing damage which resulted to the injured party.” With slanderous per quod statements, “[c]ourts focus not upon the actual meaning of the words but on the extrinsic facts which explain the meaning of the communications.” To establish an action for slander per quod, a plaintiff must affirmatively prove “special damages, ie., actual injury to reputation....”

DAV-KY and Booher argue that Crabb’s complaint was deficient because the slanderous words were not pled with specificity. Because Crabb did not plead the “specifics of the circumstances,” they claim the trial court should have granted their motion for JNOV or a new trial.

In her complaint, Crabb alleged that Booher “made false, defamatory and slanderous accusations against [her] causing [her] embarrassment, humiliation and mental distress to her damage and detriment on that account.” At trial, witness testimony revealed that the alleged slander concerned two different matters: first, that Crabb had engaged in a “sexual liaison” with one of her co-workers; and, second, that Crabb misappropriated or attempted to misappropriate funds.

Upon review of the record, we are satisfied that the defamatory statements were sufficiently disparaging on their face to constitute an allegation of slander per se. Comments regarding Crabb’s supposed affair with a co-worker and her apparent mishandling of funds would certainly “expose [her] to public hatred, ridicule, contempt or disgrace.” There was no need to introduce extrinsic facts to explain the meaning of the comments; moreover, an explanation of the circumstances under which the comments were made was unnecessary. As such, Crabb was under no duty to plead special damages or actual injury to her reputation.

Because Crabb’s complaint alleged slander with sufficient specificity, the court acted properly in putting this issue to the jury. And because there was no error, the trial court properly denied the motion for JNOV or a new trial on this issue.

IV. Jury Instructions on Slander.

DAV-KY and Booher next argue that the court erroneously instructed the jury on slander. They contend that the “proof’ in this case indicates Crabb “quit” on January 3, 1996. Her complaint was filed on January 31, 1996. Therefore, DAV-KY and Booher claim the instructions should have limited the jury to a finding that Booher slandered Crabb between January 3, 1996, and January 31, 1996. Because the instruction permitted the jury to consider any statement made after January 9, 1996, they claim it was “erroneous” and “outside of the pleadings.”

The court’s slander instruction read as follows:

You will find for the plaintiff, WETO-NAH CRABB, and against the Defendants if you are satisfied from the evidence as follows:
a. That after January 9, 1996, in the presence of another, Samuel Booher made a statement that was reasonably understood by such person to be damaging to the reputation of WETONAH CRABB.

During cross-examination, counsel for DAV-KY and Booher introduced James Crabb’s (Wetonah’s ex-husband) deposition testimony from his divorce proceedings with Crabb. The deposition testimony revealed that James spoke with Booher “once or twice” before January 3, 1996. But the testimony did not reveal that any slanderous statements were made during those initial conversations. In fact, James testified that during one of his pre-Janu-ary 3, 1996, conversations with Booher, Booher stated “he never witnessed anything” between Crabb and her co-worker. We hardly think this statement could be considered slanderous.

Moreover, James’s testimony did not reveal that Booher made any slanderous statements after January 31, 1996. In fact, the bulk of his testimony concerned the conversation he had with Booher on January 30,1996.

We find nothing in the record to indicate that the jury heard evidence of slanderous statements made outside the period between January 9, 1996, and January 31, 1996. Likewise, there was absolutely no testimony involving statements made between January 3, 1996, and January 9, 1996. Therefore, we find no error in the instruction limiting the jury to statements made after January 9,1996.

V. Court’s Refusal to Introduce Minutes of the January 1996 DAV-KY Board Meeting.

DAV-KY and Booher’s fourth argument is that the court erred by refusing to allow the introduction of the minutes of the January 1996 DAV-KY Board Meeting. Specifically, DAV-KY and Booher contend that the court refused their request based on Crabb’s statement that the minutes had not been produced in discovery. DAV-KY and Booher argue that Crabb’s statement and the court’s denial of their motion were mistaken since the “records had been disclosed and had been filed in the record.”

We note that DAV-KY and Booher did not tell us where in this voluminous record the production of those minutes could be found. But we were able to find the minutes in the record and to confirm that they were, in fact, disclosed to the opposite side. Thus, the court’s refusal of DAV-KY and Booher’s request to introduce the document on the grounds stated was a ruling made on an erroneous basis.

But as Crabb points out, DAV-KY and Booher have not established or even argued that exclusion of the minutes was in any way harmful or prejudicial. They do claim that the minutes “[go] directly to the improper deposit issue.” Frankly, we are puzzled about what this argument means. CR 61.01 states:

No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.

DAV-KY and Booher have failed to convince us that the trial court’s denial of the motion to introduce the minutes into evidence prejudiced their substantial rights. Therefore, we disregard this mistaken ruling as a harmless error.

VI. Jury’s Consideration of Breach of Contract Claim.

DAV-KY and Booher’s fifth claim of error is the court’s decision to allow the jury to consider the breach of contract claim. The basis for this argument is DAV-KY and Booher’s contention that the “circumstances occurring on January 3, 1996, are disputed.” DAV-KY and Booher continue to assert that Crabb was “cursing and out of control and said she quit,” while Crabb argues Booher fired her and she responded by saying, trYou can’t fire me, I quit.” DAV-KY and Booher argue that because Crabb quit, the breach of contract claim should not have gone to the jury. They also contend that Crabb failed to exhaust her administrative remedies.

Whether Crabb quit or was fired from her position with DAV-KY was a matter of fact for the jury to decide. CR 52.01 states that “[findings of fact shall not be set aside unless clearly erroneous .... ” There was sufficient proof in the record to support the jury’s finding that Crabb was fired, and we believe there was substantial evidence to sustain the breach of contract claim. It is true that Crabb did not follow the administrative remedies set forth in the DAV-KY employment policy. But as the trial court noted in denying DAV-KY and Booher’s motion to dismiss Crabb’s complaint, Crabb’s duty to seek administrative remedies under the employment policy did not arise “until such time as the Commander, Adjustant [sic] or Executive Committee files a notice of employee suspension or discharge.” And because there was “no proof that any notice of employee suspension or discharge was filed,” Crabb was not obligated to seek administrative remedies.

Again, we are satisfied that this finding was based on substantial evidence. The record shows that regardless of whether Crabb quit or was fired, she never received notice of discharge from DAV-KY. Therefore, she was under no duty to seek remedies in accordance with the employment policy; and the court acted properly in sending the breach of contract claim to the jury.

VII. Testimony of James Crabb.

DAV-KY and Booher next argue that the trial court abused its discretion in permitting Crabb’s counsel to call James as a witness. Specifically, DAV-KY and Boo-her complain that James was not listed on Crabb’s witness list; that he was permitted to testify out of order; and that they were not given access to notes he used during trial.

With regard to the first argument, DAV-KY and Booher argue that Crabb created undue bias and surprise by failing to comply with Bullitt Circuit Court’s local rule CPR-300. This rule requires each party to furnish a witness list to the opposing side before trial. DAV-KY and Boo-her argue that Crabb violated CPR-300 by failing to list James as a potential witness.

From our review of the record, it appears that both parties exchanged witness lists before the first trial. And although James was omitted from Crabb’s list, he was included as a potential witness on the list provided by DAV-KY and Booher.

Before the second trial, the circuit judge had the following conversation with counsel at the bench:

[MR. ULRICH]: We do[,] however[,] have another witness who I believe would be prepared to testify that he had conversation^] with Sam Booher between January 3 and January 31st, 1996[,] relating to [Crabb’s] alleged infidelity and relating to her use or manipulation of DAV funds.
THE COURT: Who is the witness?
MR. ULRICH: James Crabb.
MR. GIVHAN: Has he been named in this case?
MR. ULRICH: You have. He is your witness.

It is obvious, both from the fact that James was listed on their own witness list and from the above pre-trial conversation, that DAV-KY and Booher must have known about James and his potential role as a trial witness. And because DAV-KY and Booher were aware James might testify, we fail to see how his omission from Crabb’s witness list was a surprise. So we find no fault with the court’s decision to allow Crabb to call James as a witness in the second trial.

Second, DAV-KY and Booher argue that James was allowed to testify out of order. This, they claim, was an abuse of the court’s discretion. We disagree.

The Kentucky Rules of Evidence say that “[t]he court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to: (1) Make the interrogation and presentation effective for the ascertainment of the truth; (2) Avoid needless consumption of time; and (3) Protect witnesses from harassment or undue embarrassment.” Because “[mjodern litigation creates a wide variety of problems related to interrogation of witnesses, production of evidence, and general trial management,” trial judges are given “broad discretion ... to deal with problems and situations associated with • the production of evidence.”

In light of this rule, we see no error in allowing James to testify out of order. This is the sort of case management decision that trial judges must make. And the judge’s choice here does not constitute an abuse of discretion.

Finally, DAV-KY and Booher argue that the court erred by refusing to permit examination of the notes used by James to “refresh his memory.” We agree with this contention.

To discuss the merits of this argument more comprehensively, we should clarify the distinction between present memory refreshed and past recollection recorded. KRE 612, titled “Writing used to refresh memory,” states:

Except as otherwise provided in the Kentucky Rules of Criminal Procedure, if a witness uses a writing during the course of testimony for the purpose of refreshing memory, an adverse party is entitled to have the writing produced at the trial or hearing or at the taking of a deposition, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.

In contrast, KRE 803(5) describes past recollection recorded, which is an exception to the hearsay rule, as:

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witnesses] memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not be received as an exhibit unless offered by an adverse parfy-

The difference between these two evidentiary concepts is subtle and is often the cause of confusion. As explained by the United States Court of Appeals for the Third Circuit in United States v. Riccardi:

The primary difference between the two classifications is the ability of the witness to testify from present knowledge: where the witnesses] memory is revived, and he presently recollects the facts and swears to them, he is obviously in a different position from the witness who cannot directly state the facts from present memory and who must ask the court to accept a writing for the truth of its contents because he is willing to swear, for one reason or another, that its contents are true.

Citing the case of Jewett v. United States, the Riccardi Court commented that “ ‘[i]t is one thing to awaken a slumbering recollection of an event, but quite another to use a memorandum of a recollection, fresh when it was correctly recorded, but presently beyond the power of the witness so to restore that it will exist apart from the record.’ ”

In Kentucky, we recognize that present memory refreshed requires proof “that the witness has a memory to be refreshed,” and “that it needs to be refreshed.” The rule permits the use of “[ajlmost any kind of writing ... to refresh memory, if the trial judge finds that the witness needs to review the writing to refresh memory and that the writing will likely serve that objective.” Because the writing “is only being used to refresh memory ... [it] never acquires independent status as evidence in the case.” Rather, “the evidence is the witness’s refreshed memory and not the writing that was used to bring that memory to the surface.”

On the contrary, past recollection recorded “allows a witness with a faded memory to testify from notes or a memorandum that the witness can show was made by her or under her direction while the information was fresh in the witnesses] memory and reflects that knowledge correctly.” The rule “requires the offering party to prove and the trial judge to find that the witness ‘has insufficient recollection to enable the witness to testify fully and accurately’ (taking into account the extent to which the memory can be refreshed from examination of the writing).” Under KRE 803(5), “the recorded recollection is admissible, but only after verification of its accuracy. Even if admitted, ‘the memorandum or record may be read into evidence but may not be received as an exhibit unless offered by an adverse party.’ ” If a party’s notes do refresh the party’s recollection, “there is no need to admit the recording into evidence, because the witness will be able to testify from his or her refreshed memory.”

The transcript from James’s direct examination at trial reads as follows:

Q. Mr. Crabb, did you have a telephone conversation with Samuel Booher in January of 1996?
A. Yes, I did.
Q. And do you know the number of conversations that you had in January of '96?
A. I would have to see my notes I made; a number.
Q. Do you know what the dates of those conversations were?
A. Not without looking at my logs.
Q. Did you bring the logs with you?
A. I do not have them.
Q. Let me show you now a copy of a document and ask you if you can identify that.
(WITNESS EXAMINING DOCUMENT)
A. Yes. This is my notes.
Q. And tell us what you mean by ‘notes’. What ...
MR. GIVHAN: (INTERRUPTING) Your honor, I would like to see that, please.
MR. ULRICH: If I introduce this into evidence I will be glad to show it to you, Mr. Givhan.
DIRECT EXAMINATION BY MR.
ULRICH: (CONTINUING)
Q. What do you mean by ‘notes’? What are these?
A. During this time I kept detailed notes and logs, if you will, about the events occurring at that time.
Q. And they were kept by computer?
A. Yes.
Q. By yourself?
A. Yes.
Q. More or less contemporaneously with the events that they depict?
A. Yes.
Q. And was there a conversation between you and Mr. Booher on January 30th of 1996?
A. Yes.
MR. GrVHAN: Your Honor, may we approach the bench?

This objection prompted a bench conference. After the court overruled the objection, direct examination continued:

Q. I believe I asked you, Mr. Crabb, if you had a telephone discussion with Mr. Booher on January 30th, 1996?
A. Yes, I did.
Q. Without looking at your notes, would you have any personal recollections here today, these many years later, of the contents of that conversation?
A. No.
Q. By looking at your notes can you refresh your recollection and recall what you and Mr. Booher discussed that day?
A. Yes.

Further direct examination of James followed with James reading relevant portions of his notes into evidence.

Following extensive cross-examination, counsel for DAV-KY and Booher moved the admission of James’s notes into evidence. The colloquy between counsel in open court appears in the trial transcript as follows:

MR. GIVHAN: May I see those notes, please, Counselor?
MR. ULRICH: They are not evidence. We call Mrs. Crabb.
MR. GIVHAN: I am going to make a motion that those notes be entered into evidence.

At that point, the judge invited counsel to the bench where the conversation continued outside the hearing of the jury:

MR. GIVHAN: He won’t let me look at them because they’re not in evidence, Your Honor. The man testified from them and I have got a right to see what he is testifying from.
THE COURT: He didn’t introduce them into evidence. I don’t know any — can you cite me some rule of law that requires him to let you look at them?
MR. GIVHAN: Call it natural justice, Your Honor. It is ...

Upon review of James’s testimony, it is evident Crabb’s counsel wanted to establish that James had taken notes contemporaneously with the conversations he had with Booher; that James had recorded these notes himself; and that he would be unable to testify without them. James’s notes undoubtedly served a greater purpose than merely to refresh his present memory. These recorded notes were the sole evidence of his past recollection. Without them, James could not have testified about his conversations he had with Booher. The testimony shows that James properly verified the accuracy of his own notes. Accordingly, these notes were read into evidence as allowed under the past recollection recorded exception.

But having established that James’s use of his notes constituted a proper application of past recollection recorded under KRE 803(5), the question remains whether the court should have denied adverse counsel’s request to inspect these notes for cross-examination. There is nothing in the text of KRE 803(5) that explicitly says that the court must allow adverse counsel to inspect documents used for refreshing memory. But this practice is deeply rooted in the history of the exception. Dating back to 1794, courts have reasoned that “[i]t is always usual and very reasonable, when a witness speaks from memorandums, that the counsel should have an opportunity of looking at those memorandums, when he is cross-examining that witness.” The court in Lord v. Colvin further noted:

If a paper is put into the hands of a witness to refresh his memory, if after that nothing comes of it, if nothing more be done, then the other party has no right to look at it. But if anything further is done, if the witness is asked and answers questions about the document or the facts referred to in it, then at law the party on the other side has the right to see the document.

The modern rule is that “[i]n both civil and criminal cases, a record of past recollection, used as such ... must on demand be produced for inspection by opposing counsel and for use in cross-examination.” This rule is commonly accepted in other jurisdictions; and, in Kentucky, our courts have observed that counsel “should [be] permitted to examine a paper which [a] witness [refers] to in giving his testimony.” The extent to which documents used to refresh recollection may be reviewed by opposing counsel remains a matter within the discretion of the trial court.

Based on this principle, we believe that counsel for DAY-KY and Booher should have been allowed to see James’s notes. Without access to these notes, there was insufficient opportunity for cross-examination and verification of the document’s accuracy. While we recognize that the decision to preclude counsel from viewing James’s notes was within the court’s discretion, we conclude that this choice was an abuse of discretion.

Upon review of the trial transcripts, it is clear that James’s notes provided an important evidentiary basis for Crabb’s slander claim against Booher. Therefore, the denial of defense counsel’s request to see those notes resulted in palpable error affecting the substantial rights of DAV-KY and Booher. So, we must reverse the judgment on this issue.

VIII. Jury Instructions Permitting Joint Damages.

Finally, DAV-KY and Booher argue that the court erred by permitting the jury to award damages for slander jointly. In support of this argument, they claim “[t]here is absolutely no evidence DAV-KY knew of any slander or action by Mr. Booher and that it adopted or condoned [it]. There is no evidence Booher had the authority to fire [Crabb] or that DAV-KY condoned or adopted any and such action.”

It is the rule that in certain situations, an employer may be held vicariously hable for the acts of its employee. As stated by the Kentucky Supreme Court:

Vicarious liability, sometimes referred to as the doctrine of respondeat superior, is not predicated upon a tortious act of the employer but upon the imputation to the employer of a tortious act of the employee “by considerations of public policy and the necessity for holding a responsible person liable for the acts done by others in the prosecution of his business, as well as for placing on employers an incentive to hire only careful employees.”

Generally, however, “an employer is not vicariously liable for an intentional tort of an employee not actuated by a purpose to serve the employer....”

It is further recognized that “slander ... must necessarily be committed by an individual.” In Duquesne Distributing Co. v. Greenbaum, the Court held that “an action cannot be maintained against two for slanderous words because the words of one are not the words of the other.” The Court further stated that a partnership could not be held jointly hable for the slanders of a partner unless the partner was “directed or authorized to speak the words for [the partnership], or in [its] behalf or interest, or in furtherance of [its] business.”

The court’s instructions to the jury allowed damages to be awarded solely against DAV-KY if the jury found there was a breach of contract and against Boo-her and DAV-KY jointly if the jury found that Booher slandered Crabb. The jury awarded Crabb $28,082.77 against DAV-KY for the breach of contract and $31,000.00 against both of the defendants for slander. The judgment embodied the jury’s verdict and awarded damages accordingly.

The evidence in this ease supported the jury’s award of damages against DAV-KY for breach of contract. But the instruction permitting the jury’s award of joint damages against DAV-KY and Booher for Booher’s slanderous comments was erroneous. As stated, an action for slander can only be maintained against an individual. Further, an employer cannot be held liable for torts that were committed outside of its direction or authority. There is no proof in the record that DAV-KY authorized Booher to make slanderous comments about Crabb. There is also no evidence that Booher made the comments within the course and scope of his employment. The mere fact that Booher may have been at work when he made the comments is insufficient to hold DAV-KY jointly liable.

We are satisfied that this error also rises to the level of a palpable error that affects the substantial rights of DAV-KY. Since this issue is likely to arise on retrial, we must also reverse with regard to the award of damages on the slander claim.

IX. Disposition.

Having considered the record on appeal, we conclude the judgment must be reversed because the circuit court’s decision to deny counsel for DAV-KY and Booher the right to inspect James’s notes was an abuse of discretion and because the court’s instructions permitted the jury to award joint damages on the slander claim was an error of law. The case is remanded for another trial in a manner consistent with this opinion.

ALL CONCUR.

      . Commander Stambaugh died while the trial was pending; therefore, the claims against him did not survive.

        .Elwell v. Stone, 799 S.W.2d 46, 48 (Ky.App.1990), quoting, Combs v. Knott County Fiscal Court, 283 Ky. 456, 141 S.W.2d 859 (Ky.1940).

      .Kentucky Rules of Civil Procedure (CR) 76.12(4)(c)(v).

      .CR 61.02.

        . Fister v. Commonwealth, 133 S.W.3d 480, 487 (Ky.App.2003).

      . Id.

      . Elkins v. Roberts, 242 S.W.2d 994, 995 (Ky. 1951).

      . CMI, Inc. v. Intoximeters, Inc., 918 F.Supp. 1068, 1083 (W.D.Ky.1995).

      . Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 794 (Ky.2004).

      . Id.

      . Pangallo v. Murphy, 243 S.W.2d 496, 497 (Ky.1951).

      . CMI, supra.

      . Stringer, supra.

      . CMI, supra.

      . Kentucky Rules of Evidence (KRE) 611.

      . Robert G. Lawson, The Kentucky Evidence Law Handbook, § 3.20[2], 238 (4th ed.2003).

      . 174 F.2d 883, 886 (3rd Cir.1949).

      . Id.., citing, Jewett v. United States, 15 F.2d 955, 956 (9th Cir.1926).

      . Lawson, supra, § 3.20[7], at 247.

      . Lawson, supra.

      . Lawson, supra, § 3.20[7], at 248. See also, Berrier v. Bizer, 57 S.W.3d 271, 277 (Ky.2001) ("The resulting evidence is the product of the refreshed memory, not the writing used to refresh it; thus, the writing is not introduced into evidence and there is no involvement of the hearsay rule.”).

      . Lawson, supra, at § 8.85[1], at 725.

      . Hall v. Transit Authority of Lexington-Fayette Urban County Government, 883 S.W.2d 884, 887 (Ky.App.1994).

      . -AWS0N’ supra.

      . Berrier v. Bizer, 57 S.W.3d 271, 277 (Ky.2001), quoting KRE 803(5).

      . Brock v. Commonwealth, 947 S.W.2d 24, 30 (Ky.1997), citing Lawson, supra, § 8.85, at 500.

      . Hardy’s Trial, 24 How. St. Tr. 200, 824 (1794); see, 2 Wigmore on Evidence § 762, 136-137.

      . 2 Drewr. 205, 208 (1854); see, Wigmore, supra, at 137.

      . 81 Am.Jur.2d Witnesses § 793 (1992).

      . See, U.S. v. Socony-Vacuum Oil Co., 310 U.S. 150, 233, 60 S.Ct. 811, 849, 84 L.Ed. 1129 (1940) (Record used to refresh witness's memory "must be shown to opposing counsel upon demand, if it is handed to the witness.”); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cole, 189 Conn. 518, 526, 457 A.2d 656, 660 (Conn.1983) ("If a witness, when testifying, uses a document to refresh his recollection, that document thereby becomes available for examination by the opposing party.”); State v. Royal, 300 N.C. 515, 528, 268 S.E.2d 517, 526 (N.C.1980) (Opposing counsel’s right of cross-examination and right to examine a document "are sufficient safeguards against improper practices or suspicious circumstances which may be associated with refreshing the memory of a witness.”); People v. Olson, 59 Ill.App.3d 643, 647, 16 Ill.Dec. 660, 375 N.E.2d 533, 536 (Ill.App. 4 Dist., 1978) ("The item used to refresh the witness' recollection must be furnished to opposing counsel on demand, even if the refreshment occurs prior to the time the witness takes the stand.”); Falcone v. New Jersey Bell Tel. Co., 98 NJ.Super. 138, 151, 236 A.2d 394, 401 (N.J.Super.A.D.1967) (Plaintiff "should have been permitted to examine and have the use of” records and notes used by defendant’s medical examiner.); People v. Reger, 13 A.D.2d 63, 70-71, 213 N.Y.S.2d 298, 307 (N.Y.A.D.1961) ("The writing or document which revives a present recollection is not evidence and may not be shown to the jury by the party using it. Opposing counsel, however, have a right to inspect it and use it to test the credibility of the witness.”); Jackson v. State, 166 Tex.Crim. 348, 349, 314 S.W.2d 97 (Tex.Cr.App.1958) ("It is well settled that where a witness, while testifying, uses a writing to refresh his recollection, the defendant or his counsel is entitled to inspect the statement for cross-examination purposes.”).

      . Milby v. Louisville Gas & Electric Company, 375 S.W.2d 237, 241 (Ky.1964).

      . See Durbin v. K-K-M Corp., 54 Mich.App. 38, 44, 220 N.W.2d 110, 114 (Mich.App.1974).

      . American General Life & Accident Insurance Co. v. Hall, 74 S.W.3d 688, 692 (Ky.2002), quoting Johnson v. Brewer, 266 Ky. 314, 98 S.W.2d 889, 891 (1936).

      . Id. See also, 50 AmJur.2d Libel and Slander § 359 (1995).

      . Duquesne Distributing Co. v. Greenbaum, 135 Ky. 182, 121 S.W. 1026, 1027 (1909).

      . Id.

      . Id.

      . See 50 Am.Jur.2d Libel and Slander § 359 (1995) ("Testimony that the employee's statement was made while he or she was at work or on the job is insufficient as a matter of law to establish that the employee acted within the scope of his or her employment for this purpose.”).