source: Caselaw Access Project

author: TERRY McCALL, Justice.

license: Public Domain

text:
    Cecil Clayton WEEMS, Appellant, v. STATE of Texas, Appellee.
    No. 11-09-00076-CR.
    Court of Appeals of Texas, Eastland.
    Sept. 30, 2010.

      Judson K. Woodley, Woodley & Dudley, Comanche, for Appellant.
    Shane Britton, County Atty., Elisha Nix, Asst. County Atty., Brownwood, for Appel-lee.
    Panel consists of: WRIGHT, C.J., McCALL, J, and STRANGE, J.
   OPINION

TERRY McCALL, Justice.

The jury convicted Cecil Clayton Weems of driving while intoxicated. The trial court assessed appellant’s punishment at confinement for 180 days in the Brown County Jail. We affirm.

Issues on Appeal

Appellant presents two issues for review. In his first issue, he contends that the prosecutor improperly commented during closing argument on his failure to testify. In his brief, appellant has failed to identify any alleged error committed by the trial court in connection with his first issue. In the trial court, appellant moved for a mistrial and, later, moved for a new trial on the ground that the prosecutor had commented on his failure to testify. The trial court denied both motions. Therefore, we construe appellant’s first issue to be that the trial court erred in denying his motion for mistrial and his motion for new trial. In appellant’s second issue, he challenges the legal and factual sufficiency of the evidence to support his conviction.

Sufficiency of the Evidence Standards of Review

To determine if the evidence is legally sufficient, the appellate court reviews all of the evidence in the light most favorable to the verdict and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Laster v. State, 275 S.W.3d 512, 517-18 (Tex.Crim.App.2009); Jackson v. State, 17 S.W.3d 664, 667 (Tex.Crim.App.2000). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Laster, 275 S.W.3d at 519; Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App.2006); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex.Crim.App.2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim.App.1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11. The jury, as the finder of fact, is the sole judge of the weight and credibility of the witnesses’ testimony. Tex.Code Crim. Proc. Ann. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979).

The Evidence at Trial

The record shows that a one-vehicle accident involving a Ford pickup occurred in rural Brown County in the area where County Road 270, County Road 257, and Farm-to-Market Road 2525 intersect. On April 5, 2008, at about 4:14 a.m., EMS personnel were dispatched to attend to a possible snake bite victim at a residence on a county road in Brown County. Christopher Michael Bennington and his partner responded to the call. While they were on their way to the residence, they came upon the scene. Bennington said that the pickup was “off the road into the trees.” Ben-nington testified that the area in question consisted of a tree-lined dirt road that had ditches on both sides. The EMS personnel stopped to see whether anyone was inside the pickup. They determined that no one was in the pickup or in the ai'ea, and they reported the accident to the Brown County Sheriffs Department. The EMS personnel had not seen anyone along the road as they had driven to the accident scene. They continued their trip to attend to the possible snake bite victim. As they approached the residence, they did not see anyone along the road.

Bennington and his partner arrived at the residence at 4:41 a.m. The accident involving the pickup had occurred about four-tenths of a mile from the front entrance gate of the residence. Appellant was lying down on the front porch of the residence. He told the EMS personnel that a snake had bitten his leg and that the snake was still in his pants. Appellant was holding onto his left pants leg with both hands and believed that he was holding the snake. Eventually, Bennington cut off appellant’s pants. Bennington testified that there was no snake in appellant’s pants. An examination of appellant revealed that he had not been bitten by a snake. Instead, appellant had cactus thorns in his leg. Bennington testified that appellant was “a little confused and disoriented” and that appellant gave “somewhat confused and vague answers.” Appellant said that his name was “Cecil Clayton.”

Brown County Deputy Sheriff Kelly Ray Marsh received a call to assist the EMS personnel at the residence on County Road 257. Deputy Marsh drove by the accident scene on his way to the residence, and he did not see anybody in the area. Deputy Marsh described the area as “very rural” and fenced-in “pasture land and ranch land.” Deputy Marsh then proceeded to the residence. He said that appellant’s speech was very slurred. Deputy Marsh asked appellant his name a number of times. Appellant responded but Deputy Marsh could not understand him. When Deputy Marsh asked appellant for his driver’s license, he had difficulty finding it in his wallet. Deputy Marsh said that appellant dug through his wallet and “pass[ed] over his driver’s license about three times” before finding the license with Deputy Marsh’s help. Appellant’s driver’s license indicated that he lived on Hickory Street. Deputy Marsh testified that appellant was unable to get up by himself or to stand on his own. Deputy Marsh said that appellant kept saying that he had been “out for a walk.”

Appellant wanted to get checked out at the hospital, and the EMS personnel transported him to the emergency room at the Brownwood Regional Medical Center. Appellant arrived at the hospital at 5:25 a.m. Stephen Ross Nichols, M.D., an emergency room physician, examined him. Dr. Nichols testified that appellant was agitated and had an irrational thought that a snake had crawled up into his pants and bitten him. The medical records indicate that appellant had “decreased mental status,” was “off balance,” and had “involuntary movements.” Dr. Nichols said that appellant was slow to respond to commands and gave inappropriate responses. While at the hospital, appellant tested positive for methamphetamine and tetrahy-drocannabinol (THC). Dr. Nichols testified that THC is a metabolic derivative of marihuana and that “THC” is a common abbreviation for marihuana. He said that methamphetamine is a stimulant that is classified as a controlled substance. He also said that stimulant abuse commonly causes irrational thoughts, delusional thoughts, and hallucinations. Dr. Nichols diagnosed appellant with substance abuse. Dr. Nichols concluded that appellant’s use of methamphetamine and marihuana caused his irrational thoughts and that appellant had lost the normal use of his mental faculties.

Deputy Marsh went to the accident scene. He said that a pickup had been crashed into a group of trees. He said that a name badge in the pickup had the name “Cecil” on it. Deputy Marsh believed that only one person was in the pickup when the accident occurred. He said that there were blankets in the front passenger seat and several items of clothing in the backseat. Deputy Marsh said that there were two properties between the accident scene and the residence where appellant was found. He said that the front entrance gates to both of these properties were locked.

Department of Public Safety Trooper Kyle Wayne Cook was dispatched to the accident scene. He arrived at the scene at 6:29 a.m. He spoke with Deputy Marsh when he arrived. Trooper Cook said that an insurance card that was found in the pickup showed the owner of the pickup to be “Karen Kay Keel.” Trooper Cook determined that Keel was the registered owner of the pickup. Keel is appellant’s mother. On the date of the accident, she lived at 714 Hickory Street in Brownwood. Trooper Cook concluded that, based on his investigation, the driver was the only person in the pickup when the accident occurred. He arrived at this conclusion because the driver’s side door was unlocked, the passenger’s side door was locked, the driver’s airbag deployed, and the passenger’s airbag did not deploy.

Trooper Cook testified that he went to the hospital to interview appellant about the accident. Trooper Cook said that appellant was slow to answer questions. He said that appellant stuttered, slurred his speech, and gave evasive answers. When appellant realized that Trooper Cook was a police officer, appellant did not want to have anything to do with him. Appellant refused to provide a blood sample upon Trooper Cook’s request. Trooper Cook said that Keel came to the hospital. Appellant did not want Keel to talk with Trooper Cook. Trooper Cook said that, at one point, when the blood-pressure cuff on appellant’s arm activated, appellant “jumped forward, lunged and screamed like a paranoid person would do.” Trooper Cook also testified that, in general, individuals who are under the influence of methamphetamine are “[vjery paranoid, jumpy, [and] quick to react” and “don’t think logically.” He said that individuals who use methamphetamine “lose control of their mental and physical faculties.”

Keel testified that she owned the pickup that was involved in the accident. Keel said that appellant typically drove the pickup and that he had it on the night of the accident. She said that appellant called her at 1:00 or 1:30 a.m. on the night of the accident. At that time, appellant was “a little upset,” and he thought that someone was following him. Keel said that appellant called her again later and said that he needed her “to send those people.” Keel responded, “Okay, what people?” Appellant then said, “No, you weren’t there.” Keel then asked appellant, “Are you still driving?” Appellant responded, “No,” and also said that he was “out of the vehicle.” Keel believed that appellant told her that he was in the woods. Keel testified that she had not had any conversations with appellant about whether he was driving the pickup when the accident occurred.

Analysis

To obtain a conviction for driving while intoxicated, the State must prove that the defendant operated a motor vehicle in a public place while intoxicated. Tex. Penal Code Ann. § 49.04(a) (Vernon 2003). The State need not establish the precise time of an accident or of the defendant’s driving to prove the offense of driving while intoxicated. Kuciemba v. State, 310 S.W.3d 460, 462 (Tex.Crim.App.2010); Kennemur v. State, 280 S.W.3d 305, 314 n. 8 (Tex.App.-Amarillo 2008, pet. ref'd); Zavala v. State, 89 S.W.3d 134, 139 (Tex.App.-Corpus Christi 2002, no pet.). However, the State must establish “a temporal link between the defendant’s intoxication and his driving.” Kuciemba, 310 S.W.3d at 462. Thus, there must be proof from which the jury can conclude that, at the time of the driving in question, whenever that may have been, the defendant was intoxicated. Zavala, 89 S.W.3d at 139. A conviction for driving while intoxicated can be supported solely by circumstantial evidence. Kuciemba, 310 S.W.3d at 462. Being intoxicated at the scene of a traffic accident in which the defendant was the driver is some circumstantial evidence that the defendant’s intoxication caused the accident, and the inference of causation is even stronger when the accident is a one-car collision with an inanimate object. Id.

Appellant contends that the evidence was legally and factually insufficient to establish that he operated a motor vehicle. He also contends that, if the evidence was sufficient to establish that he operated a motor vehicle, the evidence was legally and factually insufficient to establish that he operated a motor vehicle while intoxicated.

Appellant’s mother, Keel, owned the pickup. Keel testified that appellant typically drove the pickup and that he had it on the night of the accident. Appellant called Keel at 1:00 or 1:30 a.m. At that time, appellant believed that someone was following him. In the later phone call, Keel asked appellant whether he was still driving. Appellant responded that he was not driving and was “out of the vehicle.” The evidence showed that the accident occurred in a “very rural” area. Appellant was found about four-tenths of a mile from the accident scene. The police officers and EMS personnel did not see anyone else at the accident scene or in the surrounding area. The evidence was legally and factually sufficient to establish that appellant was driving the pickup and, therefore, operating a motor vehicle when the accident occurred.

In the jury charge in this cause, the trial court defined “intoxicated” as “not having the normal use of one’s physical or mental faculties by reason of the introduction of a controlled substance, a drug, or a dangerous drug into the body.” See Tex. Penal Code Ann. § 49.01(2)(A) (Vernon 2003). At the hospital, appellant tested positive for methamphetamine and marihuana, which are both controlled substances. See Tex. Health & Safety Code Ann. § 481.032 (Vernon 2010). Dr. Nichols diagnosed appellant with substance abuse. Dr. Nichols attributed appellant’s irrational thoughts to his use of methamphetamine and marihuana, and Dr. Nichols said that appellant had lost the normal use of his mental faculties. Trooper Cook’s testimony supports the conclusion that appellant had lost the normal use of his mental faculties as a result of his use of methamphetamine and marihuana. Trooper Cook said that appellant stuttered, slurred his speech, and gave evasive answers at the hospital. Trooper Cook also testified about appellant’s reaction to the blood-pressure cuff activating.

The State presented evidence that appellant lost the normal use of his mental and physical faculties for a lengthy period of time. Appellant had the irrational thought about a snake crawling into his pants and biting him when the EMS personnel attended to him at the residence. Appellant also thought that the snake was still in his pants and that he was holding it. Appellant was confused and disoriented, and his speech was slurred at the residence. Deputy Marsh said that appellant could not get up by himself or stand on his own. Keel’s testimony supports a reasonable inference that appellant lost the normal use of his mental faculties before the accident occurred. According to Keel, appellant thought that he was being followed at 1:00 or 1:30 a.m. Later, appellant told Keel that he was no longer driving and that he needed her “to send those people.”

Based on the evidence, the jury could have reasonably concluded that appellant operated the pickup in a public place while not having the normal use of his physical or mental faculties by the reason of the introduction of methamphetamine or marihuana into his body. The evidence established a temporal link between appellant’s driving and his intoxication. We conclude that the evidence was legally and factually sufficient to support his conviction. Appellant’s second issue is overruled.

Prosecutor’s Statements During Closing Argument

In his first issue, appellant contends that the trial court erred in denying his motion for mistrial and motion for new trial because the prosecutor commented on his failure to testify. A comment on a defendant’s failure to testify offends the Texas and United States Constitutions, as well as Texas statutory law. U.S. Const. amend. V; Tex. Const, art. I, § 10; Tex. Code Crim. Proo. Ann. art. 38.08 (Vernon 2005). A prosecutor’s comment amounts to an impermissible comment on a defendant’s failure to testify only if, when viewed from the jury’s standpoint, the comment is manifestly intended to be, or is of such character that a typical jury would naturally and necessarily take it to be, a comment on the defendant’s failure to testify. Cruz v. State, 225 S.W.3d 546, 548 (Tex.Crim.App.2007); Bustamante v. State, 48 S.W.3d 761, 765 (Tex.Crim.App.2001).

Appellant contends that the following statements made by the prosecutor constituted comments on his failure to testify:

(1) Sometimes the only person who is an eye-witness is the person who committed the crime, and we’re not allowed to call them as the State, and they have a right not to testify and the State — and you can’t hold that against them, but we can still as a State prosecute them and prove that they committed a crime, and we can do that by looking at circumstantial evidence.
(2) The only one who can testify to it directly, the law doesn’t allow us to even consider whether or not he testifies.
(3) The only person who can tell us the truth is the person who wouldn’t cooperate. He wouldn’t cooperate with the police for a reason, because he knew that if he told the police the truth, they would arrest him on the spot and he would definitely be convicted.
Now, you may say, well, you know, he was intoxicated at the time. He was paranoid. Of course, he doesn’t want to talk to the police. But, it’s been nine months since then. He could have given them any information about who that driver was, and he hasn’t cooperated with them since then. This is all about taking responsibility, and he doesn’t want to do that.

Appellant’s counsel did not object to these statements, request an instruction to disregard the statements, or move for a mistrial during the prosecutor’s closing argument. Instead, after the jury retired to deliberate, appellant’s counsel moved the trial court for a mistrial on the ground that “[t]he prosecutor made several references to [appellant] not testifying.” The trial court denied appellant’s motion. Later, appellant complained of the prosecutor’s closing argument in a motion for new trial. The trial court also denied that motion.

If the harm caused by an improper jury argument is incurable, a motion for mistrial is sufficient to preserve error for appellate review. Cruz, 225 S.W.3d at 548; Young v. State, 137 S.W.3d 65, 70 (Tex.Crim.App.2004). However, to preserve error, a motion for mistrial must be timely. Griggs v. State, 213 S.W.3d 923, 927 (Tex.Crim.App.2007). A motion for mistrial is timely only if it is made as soon as the grounds for it become apparent. Id.

In this cause, the ground for appellant’s motion for mistrial became apparent during the prosecutor’s closing argument. However, appellant failed to move for a mistrial until after the prosecutor had concluded her closing argument. As such, appellant’s motion for mistrial was untimely and failed to preserve his first appellate issue for review. Id. Appellant’s first issue is overruled.

Assuming that appellant preserved his first issue for review, we conclude that the trial court did not err in denying his motion for mistrial and his motion for new trial. We review a trial court’s denial of a motion for mistrial under an abuse of discretion standard. Archie v. State, 221 S.W.3d 695, 699 (Tex.Crim.App.2007); Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App.2004). We review a trial court’s denial of a motion for new trial under the same standard. Salazar v. State, 38 S.W.3d 141, 148 (Tex.Crim.App.2001).

Appellant complains about the prosecutor’s statement that “we’re not allowed to call them as the State, and they have a right not to testify and the State— and you can’t hold that against them.” The prosecutor made this statement in the context of explaining that the State may use circumstantial evidence and is not re-quired to present eyewitness testimony to prove that an individual committed a crime. Appellant also complains about the prosecutor’s statement that “[t]he only one who can testify to it directly, the law doesn’t allow us to even consider whether or not he testifies.” The trial court’s jury charge contained the following instruction regarding appellant’s election not to testify:

Our law provides that a defendant may testify in his own behalf if he elects to do so. This, however, is a privilege afforded to a defendant, and, in the event he elects not to testify, that fact cannot be taken as a circumstance against him. In this case, the Defendant has elected not to testify, and you are instructed that you cannot and must not refer or allude to that fact throughout your deliberations or take it into consideration for any purpose whatsoever as a circumstance against the defendant.

In the complained-of comments, the prosecutor essentially restated the trial court’s instructions to the jury. She reminded the jury that it could not consider appellant’s election not to testify. The prosecutor recognized appellant’s right not to testify; she did not comment negatively on appellant’s failure to testify. Therefore, the prosecutor’s statements did not amount to improper comments on appellant’s failure to testify. Fuentes v. State, 991 S.W.2d 267, 275 (Tex.Crim.App.1999); Bullard v. State, 706 S.W.2d 329, 331 (Tex.App.Houston [14th Dist.] 1986, pet. ref'd).

Appellant also complains about the prosecutor’s statement that “[t]he only person who can tell us the truth is the person who wouldn’t cooperate.” As set forth above, immediately after this statement, the prosecutor stated that “[appellant] wouldn’t cooperate with the police for a reason.” The prosecutor then made additional statements about appellant’s failure to cooperate with the police. Trooper Cook’s testimony supports the conclusion that appellant would not cooperate with the police. Trooper Cook said that, once appellant realized he was a police officer, appellant did not want to have anything to do with him. Appellant also did not want Keel to talk to Trooper Cook. Viewed in context, the complained-of statement by the prosecutor relates to appellant’s lack of cooperation with the police rather than his failure to testify. As such, the statement did not constitute an impermissible comment on appellant’s failure to testify.

The prosecutor did not impermis-sibly comment on appellant’s failure to testify. Therefore, assuming that appellant preserved error, we conclude that the trial court did not abuse its discretion in denying appellant’s motion for mistrial and his motion for new trial.

We also conclude that the trial court did not err in denying appellant’s motions for another reason. Except in the most blatant instances, an instruction to disregard a comment on the defendant’s failure to testify will cure any harm caused by the comment. Moore v. State, 999 S.W.2d 385, 405-06 (Tex.Crim.App.1999). If a defendant fails to request an instruction to disregard and the instruction would have cured any harm, the trial court does not abuse its discretion in denying a motion for mistrial. Young, 137 S.W.3d at 72. Even if the prosecutor’s statements in this cause amounted to comments on appellant’s failure to testify, they were not so blatant that they would have rendered an instruction to disregard ineffective. Moore, 999 S.W.2d at 405-06. Because appellant failed to request an instruction to disregard, the trial court did not abuse its discretion in denying his motions. Young, 137 S.W.3d at 72.

This Court’s Ruling

The judgment of the trial court is affirmed.

      . In an affidavit in support of appellant’s motion for new trial, appellant’s counsel explained that he had not objected during closing argument to the prosecutor's statements because he had not heard them. If appellant’s counsel could not hear the prosecutor’s closing argument, he should have requested relief from the trial court. The trial court, among other things, could have instructed the prosecutor to talk louder or permitted appellant’s counsel to move to a place in the courtroom where he could hear the prosecutor's argument.

      . The trial court’s written jury charge contained a typographical error. It stated “what purpose whatsoever” instead of "any purpose whatsoever." The trial court corrected the instruction when it read the instructions to the jury.


author: JOHN MAUZY PITTMAN, Judge.

text:
    2009 Ark. App. 497
    Dustin NORWOOD and Dylan Norwood, Appellants, v. Cathy SELLERS, Administratrix of the Estate of Thomas Norwood, Appellee.
    No. CA 08-952.
    Court of Appeals of Arkansas.
    June 24, 2009.
    Mixon Law Firm, by: Donn Mixon, Jonesboro, for appellant.
    L.D. Gibson, Trumann, for appellee.
   JOHN MAUZY PITTMAN, Judge.

1 ]This case requires us to determine whether a January 2003 will was properly witnessed. The trial judge found that it was not, and he denied probate for failure to prove the will by the testimony of two attesting witnesses. Appellant argues that the trial court clearly erred in finding that the will did not meet the requirements of Ark.Code Ann. § 28-25-103 (Repl.2003), and in strictly construing that statute’s provisions. We affirm.

We review probate matters de novo but will not reverse findings of fact unless they are clearly erroneous. McAdams v. McAdams, 353 Ark. 494, 109 S.W.3d 649 (2003). A finding is clearly erroneous when, although there is evidence to support it, we are left on the entire evidence with the firm conviction that a mistake has been committed. Morton v. Patterson, 75 Ark.App. 62, 54 S.W.3d 137 (2001). We defer to the superior position of the | ¡¡trial court sitting in a probate matter to weigh the credibility of the witnesses. McAdams, supra.

Arkansas Code Annotated section 28-25-103 provides that:

(a) The execution of a will, other than holographic, must be by the signature of the testator and of at least two (2) witnesses.
(b)(1) The testator shall declare to the attesting witnesses that the instrument is his or her will and either:
(A) Himself or herself sign;
(B) Acknowledge his or her signature already made;
(C) Sign by mark, his or her name being written near it and witnessed by a person who writes his or her own name as witness to the signature; or
(D)(i) At his or her discretion and in his or her presence have someone else sign his or her name for him or her.
(ii) The person so signing shall write his or her own name and state that he or she signed the testator’s name at the request of the testator.

Here, one of the witnesses, Jeannie Rodgers, testified at the 2007 hearing that there were no other signatures on the document when she signed it; that the testator never told her that the document was his will or acknowledged his signature to her; that she did not see the testator or the other witness sign the document, and that neither one of them told her that they had signed it; that the testator and other witness left the room that she was in to a place where she could not hear what was being said; that she thought she was signing and notarizing a loan; and that she did not know that she had signed a will until the probate ^proceeding began. Questions were raised as to Ms. Rodgers’s credibility. In a 2006 affidavit, she had stated that she was a subscribing witness to the will; that the testator requested that she sign it; and that she signed it in the presence of the testator. There was also proof that Ms. Rodgers had been convicted of embezzlement in 2004 or 2005. However, the trial court saw her demeanor as she testified and chose to believe her. Deferring to the trial judge’s superior position to make that credibility determination, we cannot conclude that he clearly erred in finding as he did.

Appellant argues that the trial court erred in refusing to rule that, despite Ms. Rodgers’s testimony, there was substantial compliance. We do not agree. In Burns v. Adamson, 313 Ark. 281, 854 S.W.2d 723 (1993), our supreme court held that the trial judge did not err in refusing probate where there was positive proof that the witness did not see the testatrix sign or acknowledge the will, stating that substantial compliance had never been extended to allow a witness to attest a will before the testator signs it and who in fact never sees the testator sign.

Affirmed.

ROBBINS and GRUBER, JJ., agree.


author: Justice SCHRODER.

text:
    3M COMPANY, Appellant, v. Hon. William ENGLE III, Judge, Perry Circuit Court, et al., Appellees. and Kentucky Mine Supply, et al., Real Parties in Interest. American Optical Corporation and 3M Company, Appellants, v. Delbert Miller, et al., Appellees.
    Nos. 2010-SC-000125-MR, 2010-SC-000163-MR.
    Supreme Court of Kentucky.
    Dec. 16, 2010.
    As Corrected Dec. 27, 2010.

      Adam Benjamin Shadburne, Byron N. Miller, Thompson Miller & Simpson PLC, Louisville, KY, Bryant Jonathan Spann, Allen Guthrie & Thomas, PLLC, Charleston, WV, for appellant 3M Company.
    Carol Dan Browning, Julie Marie McDonnell, Robert Michael Connolly, Whitney Frasier Watt, Stites & Harbison, PLLC, Louisville, KY, for appellant/real party in interest American Optical Corp.
    Hon. William Engle III, Judge, Perry Circuit Court, Hazard, KY, appellee.
    Alva A. Hollon, Jr., John Oaks Hollon, Sams & Hollon, P.A., Jacksonville, FL, James Douglas Holliday, Hazard, KY, for appellees Delbert Miller, et al.
    Craig Robert Banford, James David Bo-len, Jr., Huddleston Bolen Beatty Porter & Copen LLP, Huntington, WV, for real party in interest Kentucky Mine Supply.
    David Eric Lycan, William Harvey May, Hurt, Crosbie, May, PLLC, Lexington, KY, for real party in interest The Special Fund.
    Milton Trent Spurlock, Phillips Parker Orberson & Moore, P.L.C., Robert Young Gwin, Gwin Steinmetz Miller & Baird, PLLC, Louisville, KY, for real party in interest Mine Safety Appliances Company.
    Patrick W. Gault, Napier Gault Keith PLC, Louisville, KY, for real party in interest Mine Service Company, Inc.
    Robert L. Whittaker, Department of Labor, Frankfort, KY, for real party in interest Workers’ Compensation Fund.
   Opinion of the Court by

Justice SCHRODER.

Defendants/Appellants appeal from an order of the Court of Appeals issuing a writ of prohibition to prevent the deposition of the Plaintiffs’/Appellees’ attorney in the underlying civil suit. We conclude that the Court of Appeals erred in issuing the writ. The trial court did not act erroneously, and the Plaintiffs have waived attoi'ney-client privilege with respect to the matters about which the attorney is to be deposed. Therefore, we reverse and vacate the Court of Appeals’ issuance of the writ.

I. BACKGROUND

Plaintiffs/Appellees (collectively “the Plaintiffs”) are a group of coal miners suffering from coal workers’ pneumoconio-sis (CWP), also known as “black lung.” The miners, alleging that the respirator equipment they used throughout their careers was defective, filed suit against the manufacturers and distributors of the equipment. Defendants/Appellants 3M Company (3M) and American Optical Corp. (American Optical) (collectively “the Defendants”) are both manufacturers of allegedly defective equipment.

Following discovery, the Defendants filed motions for summary judgment, asserting that the Plaintiffs’ claims were barred by the one-year statute of limitations. Relying on the discovery rule, the Plaintiffs asserted that they did not learn of a possible connection between their CWP and defective respirators until informed by their attorney. Each plaintiff submitted an affidavit, stating:

I filed this lawsuit within one year of the date I was informed by my attorney in this lawsuit that there may be a causal connection between my lung disease and defects in the respirators that I wore throughout my career. I was never told by any prior attorney, government agency, or other person that there might be a connection between any dust mask and my disease.

Judge William Engle III, respondent in the original writ action, denied the Defendants’ motions for summary judgment, finding that there was a genuine issue of material fact as to when the Plaintiffs’ causes of action accrued. Following the trial court’s ruling, the Plaintiffs stated, through additional discovery, that the only persons with whom they discussed a possible connection between respirators and their CWP were their attorneys, Alva Hol-lon, Jr. and James D. Holliday, and that they did so at a meeting occurring nearly one year before them suits were filed.

The Defendants sought to depose Plaintiffs’ attorney James Holliday, in order to learn when he first discussed with the Plaintiffs a possible connection between them respirators and CWP, as well as when he himself first learned of such a possible connection. 3M also submitted interrogatories and requests for production to Holliday, which included requests to disclose when and how Holliday first learned of any theory of liability against 3M, to describe the substance of Holliday’s discussions with his clients, to elaborate on the substance of a meeting with his clients, and to produce his “entire file for each prior matter in which he has represented” the Plaintiffs. The Plaintiffs filed motions for a protective order against the deposition, and against the interrogatories and requests for production.

With regard to the deposition of attorney Holliday, Judge Engle denied the Plaintiffs’ motion for a protective order and ordered Holliday to appear to be deposed. With regard to the Defendants’ interrogatories and requests for production, Judge Engle granted the Plaintiffs’ motion for a protective order on an interim basis, pending Holliday’s deposition and further orders from the court. The Plaintiffs sought a writ of prohibition from the Court of Appeals to prevent enforcement of Judge Engle’s order requiring that Hol-liday be deposed. The Court of Appeals granted the writ, and 3M and American Optical now appeal to this Court.

II. ANALYSIS

Whether to issue a writ is always discretionary. A writ may be granted in two classes of cases. The first is where “the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court....” It is undisputed that this first class of writ does not apply to this case.

The second class of writ may issue where “the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.” The petitioner must generally be the party who stands to suffer great injustice and irreparable injury.

However, even where the petitioner does not stand to suffer irreparable injury, “in certain special cases,” a writ may issue where “the administration of justice generally will suffer the great and irreparable injury.” The Court of Appeals issued the writ in this case under the “certain special cases” subcategory. For writs of this type, we conduct a de novo review of the decision of the Court of Appeals.

A. Attorney-Client Privilege Implicates The “Certain Special Cases” Writ

Taking as true the Plaintiffs’ claim of error by the trial court, as we are required to do at this stage in the analysis, our precedents indicate that, where privileged information is in danger of being disclosed, there is no adequate remedy on appeal. While there is also generally no irreparable injury to the petitioner personally, any discovery that violates the attorney-client privilege implicates the “certain special cases” subcategory of writ, in which the harm is to the administration of justice. Because the Plaintiffs would be entitled to issuance of a writ if their claim of error were true, we now consider whether the trial court acted erroneously.

B. The Trial Court Did Not Act Erroneously

The deposition of opposing counsel is governed by McMurry v. Eckert. Under McMurry, opposing counsel may only be deposed upon a showing by the party seeking discovery that (1) the information sought is relevant and not privileged, (2) no other means exist to obtain the information, and (3) the information is crucial to the preparation of the case.

1. Relevant and Not Privileged

Kentucky’s attorney-client privilege is found in KRE 503, the substance of which grants a client “a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made for the purpose of facilitating the rendition of professional legal services to the client_” However, a client “waives the privilege if he ... voluntarily discloses or consents to disclosure of any significant part of the privilege matter.” This waiver may be explicit, but it may also be implied. Professor Lawson has explained the concept of implied waiver:

The client may waive the [attorney-client] privilege by taking positions that place the substance of the communications in issue.... A position that seems often to bring implied waiver into play is clients’ claim that they acted or refrained from acting on advice of counsel.... With this and other similar positions, the inquiry for the trial court “is whether allowing the privilege to protect against disclosure of the information would be manifestly unfair to the opposing party.”

This Court has also acknowledged the concept of implied waiver.

In latent disease cases such as this one, a plaintiffs cause of action accrues when he discovers, or in the exercise of reasonable diligence should have discovered, that he has been injured and that his injury may have been caused by the defendant. Once a plaintiffs cause of action has accrued, he has one year in which to file suit, after which his claim is barred by the statute of limitations. When a plaintiff is put on notice of his injury is a question of fact for the jury.

The Plaintiffs assert that their causes of action did not accrue until them attorney informed them of a connection between their respirator equipment and CWP. As a result of this assertion, the nature and timing of the Plaintiffs’ communications with their attorney, regarding this possible connection, has become not only relevant, but in fact critical to the case. In addition, the circuit court relied on the Plaintiffs’ representations when it denied the Defendants’ motions for summary judgment. Under these circumstances, “allowing the privilege to protect against disclosure of the information would be manifestly unfair” to the Defendants.

Furthermore, under certain circumstances, an attorney’s knowledge may be imputed to his or her client. Therefore, also at issue in this case is when the Plaintiffs’ attorneys learned of a possible connection between the Defendants’ equipment and CWP, and whether that knowledge can be imputed to the Plaintiffs under the circumstances as they existed at that time.

To the extent that the Plaintiffs have placed their communications with Holli-day at issue in this case, they have impliedly waived the attorney-client privilege. For the same reasons, the information the Defendants seek to gain by deposing Holli-day is highly relevant. The information sought is therefore relevant and not privileged.

2. No Other Means of Obtaining the Information

The Defendants also have no other means of obtaining the information they seek other than through the deposition of opposing counsel. Depending upon the circumstances of representation, the Plaintiffs’ attorneys’ knowledge of a possible connection between CWP and respirator equipment may be attributable to the Plaintiffs. Thus, only Holliday and the Plaintiffs’ other attorneys are in a position to explain when they first learned of a possible connection, what the circumstances of them representation of the Plaintiffs were at that time, when they informed the Plaintiffs of a possible cause of action, and how they went about informing the Plaintiffs. This information is highly relevant to the Defendants’ statute of limitations defense, and cannot be obtained by any means other than by deposing opposing counsel.

3. Crucial to the Preparation of the Case

The information the Defendants seek to obtain by deposing Holliday is relevant in determining whether the Plaintiffs’ claims are barred by the statute of limitations. As stated previously, once a plaintiffs cause of action has accrued, he must file suit within one year, or else his claim is barred by the statute of limitations. The information the Defendants seek to obtain could very well determine the ultimate outcome in this case. We therefore see no way that this information is not crucial to the preparation of the Defendants’ case.

The information the Defendants seek to obtain by deposing Holliday is relevant and not privileged, not capable of being obtained by other means, and crucial to the preparation of the case. Therefore, the trial court did not act erroneously in permitting the Defendants to depose Holli-day.

III. CONCLUSION

With respect to the matters about which the Defendants seek to depose attorney Holliday, the Plaintiffs have waived the attorney-client privilege. Thus, the Plaintiffs did not make the showing necessary for the issuance of an extraordinary writ, because the trial court did not act erroneously in compelling Holliday to appear to be deposed. Therefore, we reverse and vacate the Court of Appeals’ issuance of the writ.

All sitting. All concur.

      . The Plaintiffs also include the estates of several deceased coal miners.

      . KRS 413.140(l)(a).

      . Louisville Trust Co. v. Johns-Manville Products Corp., 580 S.W.2d 497, 501 (Ky.1979). Though not an issue in this writ action, it should be noted, in relation to the discovery rule, that the Plaintiffs allege that the Defendants concealed the defective nature of the respirators.

      . Hoskins v. Maricle, 150 S.W.3d 1, 9 (Ky.2004).

      . Id. at 10.

      . Id.

      . Id.

      . Bender v. Eaton, 343 S.W.2d 799, 801 (Ky.1961).

      . See Grange Mut. Ins. Co. v. Trade, 151 S.W.3d 803, 808 (Ky.2004) (defining an irreparable injury as "something of a ruinous nature”, quoting Bender, 343 S.W.2d at 801).

      . Bender, 343 S.W.2d at 801. See also Toyota Motor Mfg., Kentucky, Inc. v. Johnson, 323 S.W.3d 646, 649-50 (Ky.2010).

      . Grange, 151 S.W.3d at 810.

      . St. Luke Hosp., Inc. v. Kopowski, 160 S.W.3d 771, 774-75 (Ky.2005) (“In executing our cautious review to ensure that a party meets the required threshold of harm and lack of redressability on appeal, we take as true the movant's claim of error. This is not to say, however, that error was committed. That is a question deferred to the next stage of analysis. This Court said it this way in Bender v. Eaton, '[tjhis is a practical and convenient formula for determining, prior to deciding the issue of alleged error, if petitioner may avail himself of this remedy.’ ”) (quoting Bender, 343 S.W.2d at 801) (footnotes omitted) (brackets in original) (emphasis in Bender).

      . Id. at 775.

      . Id.

      . 833 S.W.2d 828 (Ky.1992).

      . Id. at 830 (quoting Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (8th Cir.1986)).

      . KRE 503(b).

      . KRE 509. See also St. Clair v. Commonwealth, 140 S.W.3d 510, 548-49 (Ky.2004).

      . Robert G. Lawson, The Kentucky Evidence Law Handbook, '§ 5.05[10], at 363-64 (4th ed.2003 & 2010 supp.) (footnotes omitted) (quoting Home Indem. Co. v. Lane Powell Moss & Miller, 43 F.3d 1322, 1326 (9th Cir.1995)). See also United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir.1991); Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D.Wash.1975) (discussing three factors found in cases of implied waiver: “(1) assertion of the privilege was a result of some affirmative act, such as filing suit, by the asserting party; (2) through this affirmative act, the asserting party put the protected information at issue by making it relevant to the case; and (3) application of the privilege would have denied the opposing party access to information vital to his defense.”).

      . See Lexington Public Library v. Clark, 90 S.W.3d 53, 61 (Ky.2002) (holding that any privilege was waived when the privileged information was voluntarily disclosed to a third party, and referencing the concept of implied waiver).

      . Johns-Manville Products Corp., 580 S.W.2d at 501 (citing Raymond v. Eli Lilly & Co., 117 N.H. 164, 371 A.2d 170, 174 (1977)).

      . See KRS 413.140(l)(a).

      . Lipsteuer v. CSX Transp., Inc., 37 S.W.3d 732, 737 (Ky.2000); Lynn Mining Co. v. Kelly, 394 S.W.2d 755, 759 (Ky.1965).

      . Lawson, supra n. 19.

      . See, e.g., Drinkard v. George, 237 Ky. 560, 36 S.W.2d 56, 57 (1930); Lisanby v. Illinois Cent. R.R. Co., 209 Ky. 325, 272 S.W. 753, 754-55 (1925); Barnes v. Commonwealth, 179 Ky. 725, 201 S.W. 318, 322 (1918). See also Michels v. Sklavos, 869 S.W.2d 728, 731-32 (Ky.1994).

      . The general rule that an attorney's knowledge may be imputed to his or her client is subject to a number of exceptions. 7A CJ.S. Attorney & Client § 225 (“Accordingly, knowledge which an attorney obtained in transactions independent of his or her representation of the client is not imputed to the client, and a client is not affected with notice because of knowledge obtained by the attorney from outside sources and not in the course of his or her employment, as, for example, where the knowledge is acquired by the attorney in the performance of professional services for another. Nor is the client affected by knowledge acquired, or notice received, by the attorney before the commencement of the attorney-client relationship.”).

      .Of course, for matters that remain privileged, the Plaintiffs would retain the right to object and seek a protective order or other relief pursuant to CR 26.03, CR 30.03, and CR 30.04. We also note that much of the Plaintiffs’ argument focuses on 3M’s interrogatories and requests for production. Admittedly, much of die information and many of the documents sought by 3M are likely protected from disclosure by attorney-client privilege or by the work product doctrine. See CR 26.02(3). However, at this time, a protective order remains in effect preventing the Plaintiffs from being required to disclose this information or to turn over the requested documenls. Judge Engle was clearly postponing ruling on these interrogatories and requests for production until after Holliday had been deposed. There is therefore no evidence that the lower court "is acting or is about to act erroneously!)] ” Hoskins, 150 S.W.3d at 9.

      . See, e.g., Michels, 869 S.W.2d at 731-32; Drinkard, 36 S.W.2d at 57; Lisanby, 272 S.W. at 754-55; Barnes, 201 S.W. at 322; but sea 7A C.J.S. Attorney & Client § 225.

      . See KRS 413.140(1 )(a).


author: Justice CUNNINGHAM. SCOTT, J.,

text:
    COMMONWEALTH of Kentucky, Appellant, v. Bertrand HOWLETT, Appellee.
    No. 2010-SC-000128-CL.
    Supreme Court of Kentucky.
    Dec. 16, 2010.
    Michael J. O’Connell, Jefferson County Attorney, Benjamin Francis Wyman, III, Assistant Jefferson County Attorney, Louisville, KY, Counsel for Appellant.
    Paul S. Gold, Michael Romano Mazzoli, Cox & Mazzoli, PLLC, Louisville, KY, Counsel for Appellee.
   Opinion of the Court by

Justice CUNNINGHAM.

The Commonwealth, pursuant to Section 115 of the Constitution of Kentucky and CR 76.37(10), petitions this Court for certification of the law regarding the limitations of judicial notice. Specifically, the Commonwealth seeks certification of the law on the following question:

In light of KRE 201’s pre-Rules case law and its current Federal equivalent, what if any special prohibitions exist in a bench trial against the use of a judge’s taking judicial notice of a fact that comes from the judge’s personal knowledge given KRE 201’s silence on the matter ?

The relevant facts are as follows. On November 26, 2006, Bertrand Howlett was stopped by Sgt. Steve Williams of the St. Matthews Police Department for speeding. Upon approaching the vehicle, Sgt. Williams noticed that Howlett’s eyes were bloodshot and that his breath smelled of alcohol. Sgt. Williams administered three field sobriety tests, each of which Howlett failed. Howlett was subsequently arrested and a breath test administered, where he blew a .150. Howlett was charged with speeding, reckless driving, and DUI.

During a two-day bench trial, testimony was offered regarding the necessity of a twenty-minute observation period prior to the administration of the breath test. Howlett testified that he burped during the observation period. When the court convened the following day, Judge Donald Armstrong of the Jefferson District Court, sua sponte, noted the following: “I take judicial notice of the fact that a burp during the operation or observation time needs to start the observation time all over again ... by the manufacturer of the machine, Smith and Wesson. Therefore, I’m going to find him not guilty of that.” Judge Armstrong’s concerns over How-lett’s burping during the observation period were seemingly based on his prior experience as a DUI prosecutor and his knowledge of the operating instructions for the breathalyzer machine.

Prior to the enactment of KRE 201, our case law on this issue was unambiguous:

While it may be that the trial judge had information from an undisclosed source that appellant was feigning illness, such information does not constitute evidence, nor would the judge be authorized to act upon such information as constituting a fact within his judicial knowledge. ‘It matters not what is known to the judge if it is not known to him judicially,’ is a maxim of the doctrine of judicial notice. We have also held that the court must act upon evidence heard in open court and cannot make a private investigation of a matter pending before the court and then base his decision upon information obtained thereby. To hold otherwise would destroy the very purpose for which our courts are established.

Gray v. Commonwealth, 264 S.W.2d 69, 70-71 (Ky.1954) (internal citations omitted).

The Commonwealth notes that this Court has not specifically addressed this issue since the adoption of KRE 201 and, therefore, requests a certification of the law for guidance to the bench and bar.

Kentucky Rule of Evidence 201 provides:

(a) Scope of rule. This rule governs only judicial notice of adjudicative facts.
(b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either:
(1) Generally known within the county from which the jurors are drawn, or, in a nonjury matter, the county in which the venue of the action is fixed; or
(2) Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
(c) When discretionary. A court may take judicial notice, whether requested or not.
(d) When mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.
(e) Opportunity to be heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
(f) Time of taking notice. Judicial notice may be taken at any stage of the proceeding.
(g) Instructing the jury. The court shall instruct the jury to accept as conclusive any fact judicially noticed.

As can be seen, KRE 201 is silent on the subject of judicial notice of a fact peculiarly known to the judge. However, we see no reason to depart from our previous case law on the subject. It is axiomatic that judicial notice is different from judicial knowledge. Shapleigh v. Mier, 299 U.S. 468, 475, 57 S.Ct. 261, 81 L.Ed. 355 (1937). See also R.T.K., Comment Note.—Distinction between judicial notice and judicial knowledge, 113 ALR 258 (1938). In his treatise on Kentucky Evidence, Professor Robert G. Lawson noted that “[the] drafters [of KRE 201] expressed a clear intent to have the provision construed to be in accord with the pre-Rules case law: ‘Judicial notice of a fact peculiarly known to the judge is inappropriate.’ ” Robert G. Lawson, The Kentucky Evidence Law Handbook, § 1.00[3][c], at 12 (4th ed.2003) (quoting Evidence Rules Study Committee, Kentucky Rules of Evidence—Final Draft, p. 16 (Nov.1989)). This position is widely accepted among federal courts in cases involving KRE 201’s federal counterpart as well/ Id. at 13. “While a resident judge’s background knowledge of an area may ‘inform the judge’s assessment of the historical facts,’ the judge may not actually testify in the proceeding or interject facts (excluding facts for which proper judicial notice is taken).” U.S. v. Berber-Tinoco, 510 F.3d 1083, 1091 (9th Cir.2007) (internal citation omitted).

Although KRE 201(a) specifically empowers courts to take judicial notice of “adjudicative facts,” we must conclude that the taking of judicial notice which is derived from the court’s personal knowledge of a fact peculiarly known to the judge is a fact neither “[generally known within the county from which the jurors are drawn, or, in a nonjury matter, the county in which the venue of the action is fixed; [nor] [c]apable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” KRE 201(b)(l)(2). Thus, we reaffirm our longstanding position that, under KRE 201, a trial judge is prohibited from relying on his personal experience to support the taking of judicial notice.

Procedurally, we cannot address Section 2 of KRE 201(b). That section allows judicial notice of a proposed fact if it is “[c]apable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” However, KRE 201(e) states: “A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed.” But procedurally, the taking of judicial notice on that ground was flawed.

The trial judge, in this case, proclaimed judicial notice without request of either lawyer, and then proceeded to dismiss the case in the same motion. There was no opportunity to make a “timely request” for “an opportunity to be heard.” The judge did refer to “Smith and Wesson” as an apparent attempt to cite a source “whose accuracy cannot reasonably be questioned.” This was not sufficient.

In a jury trial, when it is requested that judicial notice be taken of a fact, the other party is afforded the opportunity to respond. No less right is afforded parties in a bench trial. Here, there was no opportunity to “reasonably” question the source. “The drafters of KRE 201, following the lead of most commentators, encouraged courts to give advance notification when feasible: ‘If a court acts on its own initiative, the parties should be informed of the facts noticed and given an opportunity to respond.’ ” Lawson, supra, § 1.00 [5][e], at 20 (quoting Evidence Rules Study Committee, Kentucky Rules of Evidence—Final Draft, p. 16 (Nov.1989)).

Therefore, it was improper for the court to find judicial notice sua sponte and dismiss the case, all in one fell swoop. Judicial notice, as utilized in this case, was inappropriate.

The law is so certified.

MINTON, C.J.; ABRAMSON, NOBLE, SCHRODER and VENTERS, JJ., concur. SCOTT, J., dissents by separate opinion.

SCOTT, J.,

dissenting:

I respectfully dissent from the majority’s certification limiting a court’s judicial notice under KRE 201(b)(2), as the fact in issue in this case was clearly one “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned,” i.e., the manufacturer’s manual, which states, “[djuring [the observation] period the subject shall not have oral or nasal intake of substances which will affect the test.” CMI, Inc., Intoxilyzer 5000EN Breath Analysis Instrument Operator’s Manual (Kentucky Model) 12 (2000). Moreover, a prior decision establishes that a “burp” constitutes an “oral or nasal intake of substances which will affect the test.” See Eldridge v. Commonwealth, 68 S.W.3d 388, 392 (Ky.App.2001) (“Belching and regurgitating may contaminate the mouth with alcohol volumes from the stomach, and this is a rational basis for re-administering the observation period.”).

District Judge Armstrong has been doing this work for many years as a prosecutor and a judge and few would argue about the accuracy of his decision, especially in light of the fact that the trial lasted two days and involved evidence of the necessity of a twenty-minute observation period pri- or to the administration of the test. Yet, by this decision today, we deprive him and other trial judges of the ability to utilize their professional knowledge — “capable of [an] accurate and [a] ready determination” — in the determination of matters rightly before them. See KRE 201(b)(2). In effect, we are overmanaging our decision maker in a matter that had nothing to do with “fairness” — but now does! Thus, I must dissent.

      . We also note that die manufacturer of the breathalyzer was CMI, Inc., not Smith and Wesson. This further underscores how ill-advised it is for a judge to sua sponte take judicial notice based upon his own memory.


author: ACREE, Judge:

text:
    Roy GIBSON and Clinton Bowman, Appellants, v. KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY; Gary Speth, Sr.; and Fabian Gomez Sanchez, Appellees.
    No. 2009-CA-000048-MR.
    Court of Appeals of Kentucky.
    July 9, 2010.
    As Modified Dec. 3, 2010.

      Robert W. Dyche, III (argued), London, KY, for appellants.
    Perry Adanick (argued), Louisville, KY, for appellee Kentucky Farm Bureau Mutual Insurance Company.
    No Brief for Gary Speth, Sr. and Fabian Gomez Sanchez.
    Before ACREE, COMBS and WINE, Judges.
   OPINION

ACREE, Judge:

Appellants Roy Gibson and Clinton Bowman appeal the October 3, 2008 judgment of the Clay Circuit Court entered upon a jury’s verdict finding them liable for fraud and ordering them to pay $43,778.53 to Appellee Kentucky Farm Bureau (KFB) and $14,000 to Appellee Gary Speth. For the following reasons we affirm in part, reverse in part, and remand for additional findings.

On June 24, 2005, Gibson and Bowman reported to KFB their 2000 Ford F150 had been stolen approximately three weeks earlier; KFB established the date of the loss as June 1, 2005. At the request of KFB, Gibson and Bowman filed a police report. Because they no longer possessed the vehicle’s certificate of title, they also obtained a duplicate title. In accordance with the terms of their KFB insurance policy covering theft of the insured vehicle, Gibson and Bowman soon received a check in the amount of $17,291.50.

In late 2005, an individual named Rogelio Mendez attempted to register the vehicle. He presented the original certificate of title to the clerk; the back of the certificate showed that on March 22, 2005, Gibson and Bowman had executed an assignment of the title to Mendez and their signatures were notarized. However, because the vehicle had been reported stolen, the clerk refused to permit Mendez to register the vehicle in his name. Police seized the truck and returned it to KFB. The insurer sold the truck for approximately $7,200.

Although KFB had recovered the vehicle Gibson and Bowman alleged was stolen, Mendez’s title document cast doubt on the story Gibson and Bowman had told. KFB initiated an investigation to verify the representations its insureds had made that resulted in KFB’s payment for the truck.

KFB’s investigation yielded information that contradicted the representations made by Gibson and Bowman. Investigators learned that Mendez had actually obtained the vehicle from an individual named Gary Speth. Speth believed he had legally acquired the truck from a man named Fabian Sanchez, a friend of Mendez. Sanchez had approached Speth seeking a loan on March 23, 2005, three months earlier than the date Gibson and Bowman had reported the truck stolen. At that time, Sanchez had possession of the truck and the original title that had been signed by Gibson and Bowman and their signatures notarized, but the transferee information was left blank. Believing Sanchez was in lawful possession of the truck, Speth agreed to loan Sanchez $7,000, keeping the truck as collateral. Speth did not attempt to register the title because he expected Sanchez to return and repay the loan with interest.

After Sanchez failed to repay the loan, Mendez expressed interest in purchasing the truck. Speth agreed to sell the truck to Mendez on or about September 23, 2005, and Mendez signed the Assignment of Title as the “Buyer.” By the terms of the agreement between Speth and Mendez, payment was due after Mendez registered the truck in his name. As noted, however, Mendez was unable to register the vehicle despite making the attempt in both Kentucky and Indiana. The deal between Speth and Mendez was then off and Speth was never paid.

KFB investigator Daniel Keller was able to reach and interview Sanchez. Sanchez informed Keller that Gibson had sold him the truck in March 2005 and otherwise confirmed the information Speth provided regarding when and why Speth had come into possession of the truck.

Gibson and Bowman maintained that the truck was in their possession until it was stolen on or about June 1, 2005. Gibson claims that on or about that date he was traveling in the truck from Manchester, Kentucky, to Louisville and stopped for gas in Richmond when the truck’s starter failed. He stated he left the truck at the home of a friend who promised to have a local shop repair it. He then arranged for other transportation and continued his trip to Louisville. Both Gibson and Bowman deny having signed the title document before a notary or delivering title or possession of the truck to a third person. Gibson explained that he did sign the title document, but that he did so several years before the alleged theft in anticipation of using the truck as collateral on a loan. He never went through with that loan, however.

Believing it had been defrauded, KFB filed a complaint seeking a declaration of rights to the truck as against Sanchez and Speth and asserting a fraud claim against Gibson and Bowman. Gibson and Bowman were represented in the action by counsel and defended against the fraud claim. Speth appeared pro se with the benefit of some assistance from KFB’s counsel. Sanchez was never served and did not appear in the action.

Following trial, a jury determined Gibson and Bowman had defrauded KFB and awarded KFB $43,778.53. The jury also awarded Speth $14,000. This appeal followed.

Gibson and Bowman claim the circuit court erred as follows: (1) by failing to strike for cause jurors who were policyholders of insurance issued by KFB; (2) by admitting hearsay testimony of out-of-court statements made by Sanchez; (3) by awarding KFB costs of investigating and prosecuting the claim; and (4) by awarding damages to Speth in absence of a finding he was defrauded and without proof of his loss. We address those assignments of error in that order.

Jury Selection

“It is elementary that the determination of whether to excuse a prospective juror rests within the sound discretion of the trial judge and ought not to be set aside by a reviewing court unless the error is manifest.” Peters v. Commonwealth, 505 S.W.2d 764, 765 (Ky.1974). We review the circuit court’s determination with that standard in mind.

Gibson and Bowman claim the circuit court erred by overruling them motion to strike for cause prospective jurors who were also holders of KFB policies. They have also identified statements made by counsel for KFB and a witness, Keller, which they believe served to further bias the KFB policyholders on the jury. KFB does not directly respond to allegations that these statements biased the jury, presumably because Gibson and Bowman made no objection to these statements during trial. We separately address that issue, and the issue of preservation of error, infra. However, KFB does argue that the trial court’s refusal to disqualify any of the policyholders was proper absent a showing of any individual juror’s actual bias. We agree with KFB.

Kentucky courts have acknowledged juror-policyholders may become biased when those jurors are aware their insurer has an interest in the outcome of a case. Planters Bank & Trust Company of Hopkinsville v. Deason, 532 S.W.2d 16, 18 (Ky.1975). However, in Planters Bank, the Court did not indicate the juror would automatically be disqualified “[e]ven if the possibility of higher rates or lower dividends determined by the loss ratio of the company be considered a sufficient interest upon which to infer bias on the part of a policy holder who serves as a juror[.]” Id,.; David J. Marchitelli, Annotation, Prospective Juror’s Connection With Insurance Company As Ground For Challenge For Cause, 9 A.L.R.5th 102, § 6[e] (2010) (“The court [in Planters Bank ] reserved the question of whether a juror’s assessa-bility or participation in dividends would amount to an interest sufficient to warrant a challenge for cause”). The burden of demonstrating bias remains “upon the party claiming bias or partiality[.]” Polk v. Commonwealth, 574 S.W.2d 335, 337 (Ky.App.1978), citing Watson v. Commonwealth, 433 S.W.2d 884 (Ky.1968). That burden is borne by questioning the suspect juror to reveal whether the juror’s interest in the insurance company gives rise to an inference of bias sufficient to justify disqualification for cause.

The argument Gibson and Bowman present is that no KFB policyholder was capable of sitting as an unbiased juror in this case. That is, they argue the policyholders’ status alone required striking them for cause. True, by statute, certain persons are subject to challenge for cause merely because of their status. Howell v. Commonwealth, 489 S.W.2d 21, 22-23 (Ky.1972) (Former Kentucky Revised Statute (KRS) 29.025, now KRS 29A.080(2)(b), disqualifies felons from jury service; “a juror in such status is subject to challenge for cause”). However, this panel may not, by creating the bright line test suggested by this argument, take from the province of the trial court the discretion to determine the qualifications of any jurors in the veni-re not otherwise disqualified by KRS 29A.080(2).

We do not exclude the possibility that one or more jurors in this case may have had such a concern about their relationship with KFB that they might be deemed biased. However, we can only speculate as to the existence of actual bias because Gibson and Bowman simply did not inquire further into the matter during voir dire either with any individual juror or with the venire. Relevant inquiries could have determined whether any particular juror had a concern that a judgment in the case would affect them personally. In this case, the only information about the juror-policyholders available to the trial court was that the potential for bias existed. Absent further indication from the voir dire that any juror, because of his or her relationship with KFB, was actually biased or would have difficulty fairly deciding the case, we cannot label the trial court’s refusal to strike any jurors for cause an abuse of discretion.

Gibson and Bowman also maintain that, in light of certain jurors’ status as policyholders, statements made by KFB’s counsel and KFB’s witness, investigator Keller, served to bias the juror-policyholders. No argument regarding those statements, however, was preserved for review. Gibson and Bowman did not object to any of the statements they have identified as problematic on this score. Our review is therefore for palpable error only. Kentucky Rule of Civil Procedure (CR) 61.02.

The statements at issue included assertions that “everybody” is affected by fraud and that KFB had an obligation to report suspicious claims to a state agency, to protect its policyholders, and to protect the public in general. References to KFB policyholders in particular were brief at most; the majority of the statements addressed the effects of fraud on the people of Kentucky. Permitting these statements did not constitute palpable error, even in light of some of the jurors’ status as policyholders.

Hearsay evidence

At trial KFB introduced certain of Sanchez’s statements through its investigator, Keller, because Sanchez was unavailable to testify. The relevant portion of Keller’s testimony was as follows:

Mr. Sanchez told me that he had purchased the vehicle from Mr. Gibson during about the first week of March. He explained to me that he knew Mr. Gibson; they were both in the same profession, that is roofing, and that they were acquainted with one another, and Mr. Gibson had offered to sell him the vehicle on several occasions. On this particular occasion he took him up on it and he gave him $7,000 for the vehicle. Mr. Gibson gave him the original title, registration, as well as the vehicle. He also indicated to me at one point that Mr. Gibson had expressed an interest in maybe buying the vehicle back; he said he needed the money right away, but he may be interested in buying it back. Mr. Sanchez said to me that he tried to locate Mr. Gibson a couple of times to see if he wanted to buy it back, but he was unsuccessful. And then he himself needed money, so he sought out Mr. Speth through a friend and put up the vehicle as collateral for a loan.

Gibson and Bowman contend these statements should have been excluded because they do not qualify as hearsay exceptions. KFB argues they do so qualify, either as admissions of a party or as statements against the declarant’s interest.

“A statement is not excluded by the hearsay rule, even though the declar-ant is available as a witness, if the statement is offered against a party and is ... [t]he party’s own statement, in either an individual or a representative capacity[.]” Kentucky Rule of Evidence (KRE) 801A(b)(l). Sanchez, however, was not a party to the case before the jury, and his statements therefore do not qualify as admissions by a party. While Sanchez was named as a defendant in the complaint, he was named only in the context of the declaration of rights to the truck. At trial, the jury was not instructed to determine who the rightful owner of the truck was; the only instructions regarded the fraud claim.

Additionally, the statements made by Sanchez to the investigator were not used against Sanchez. Rather, they were used against Gibson and Bowman in prosecution of the fraud claim. KFB never claimed that Sanchez had defrauded anyone. Therefore, Sanchez’s out-of-court statements could not be permissibly introduced pursuant to this rule.

KFB also asserts the statements were admissible as statements against Sanchez’s interest. KRE 804(b) permits the inclusion of certain out-of-court statements made by non-parties, including,

[a] statement which was at the time of its making so far contrary to the declar-ant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

KRE 804(b)(3). KFB contends Sanchez’s statement that he purchased the car from Gibson on March 22, 2005, is a statement against Sanchez’s interest because it could subject him to civil or criminal liability for fraud; KFB also asserts it was a statement against his proprietary interest because it could be used to rule against him in the declaration of rights action.

Had Sanchez’s statement been that he accepted the car for the purpose of defrauding Speth or KFB, it would clearly be admissible as a statement against his interest because it would potentially render him criminally or civilly liable for fraud. As it stands, however, Sanchez’s statement was more a defense to fraud charges than an admission — that is, it is a statement that he received the truck legally in exchange for money and that he transferred it to Speth legally. It was error to admit the statement under this theory.

As a statement against Sanchez’s proprietary interest, the testimony appears at first blush to be admissible. Sanchez’s statement that he had' used the truck as collateral on a loan he never repaid was effectively a disavowal of any ownership interest he may have had in the vehicle. However, courts are wise to be wary of such statements: “Statements may appear from their content to be against the interest of the declarant but when examined in light of context have self-serving characteristics.” Robert G. Lawson, The Kentucky Evidence Laiu Handbook § 8.45[3] (4th ed.2003). Those self-serving characteristics vitiate the rationale that the hearsay evidence is reliable. Id.

In the context of Keller’s interview with Sanchez, it becomes clear the statements at issue were actually self-serving. Keller was conducting the interview to determine which scenario was accurate: (1) that Sanchez stole the truck and then used it as collateral on a $7,000 loan, or (2) that Gibson had legally conveyed the truck to Sanchez and then fraudulently reported it stolen. Given those options, it was decidedly in Sanchez’s interest to state he acquired the truck from Gibson in a legal manner and then left it with Speth. The conversation with Keller was therefore inadmissible as statements against the de-clarant’s interest.

In light of the other evidence of fraud, however, any error in admitting Sanchez’s statements to KFB’s investigator was harmless. Sanchez’s statements were discussed only briefly at trial, and the other evidence against Gibson and Bowman was strong. Speth testified he received the truck from Sanchez in March 2005, well before Gibson and Bowman reported it missing, and KFB introduced the notarized title which supported that testimony. As an official act, a notarized document cannot be attacked absent direct proceedings against the notary or “the allegation of fraud in the party benefited thereby or mistake on the part of the [notary].” KRS 61.060. While Gibson and Bowman both testified they never signed the title before a notary, they also did not assert the signed, notarized title was the result of fraud on the part of either Sanchez or Speth. In the absence of such an allegation, the notarized document cannot be challenged. The document is therefore conclusive on the issue; paired with the testimony of Speth and Keller, it renders harmless any error in admitting the hearsay evidence.

Award of costs

Gibson and Bowman next assert the award of $33,700 for the cost of investigating the claim, including attorney fees, had insufficient legal and factual basis to survive its motion for a directed verdict. KFB contends costs of investigation were properly awarded as compensatory damages.

In ruling on ... a motion for a directed verdict ..., a trial court is under a duty to consider the evidence in the strongest possible light in favor of the party opposing the motion. Furthermore, it is required to give the opposing party the advantage of every fair and reasonable inference which can be drawn from the evidence.

Taylor v. Kennedy, 700 S.W.2d 415, 416 (Ky.App.1985). In reviewing the denial of a directed verdict, this Court must “consider the evidence in the strongest light possible in favor of the opposing party.” Allen v. Commonwealth, 278 S.W.3d 649, 656 (Ky.App.2009).

The jury was instructed to award damages as follows:

If you find for the Plaintiff, Kentucky Farm Bureau Mutual Insurance Company and Gary Speth ..., you will determine from the evidence and award a sum of money that will fairly and reasonably compensate Kentucky Farm Bureau Mutual Insurance Company for such of the following damages as you believe from the evidence that it has sustained:
a. The amount paid by Kentucky Farm Bureau Mutual Insurance Company for the truck (not to exceed $10,078.53) ...
b. Reasonable costs and expenses related to the investigation of this claim (not to exceed $33,700.00) ...
c. Reasonable damages for Gary Speth[J

Keller testified that total “investigative costs” for this matter included attorney fees and legal expenses greater than $16,000, expenses for transcriptionists and court reporters of about $1,200, and the cost of his investigation of about $16,500, for a total of $33,700.

We first address the recovera-bility of attorney fees, which were included in the total award for the cost of investigation. The “American rule” is that attorney’s fees are not recoverable in the absence of a statutory or contractual provision to the contrary, or with certain equitable exceptions. Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717-18, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967). Kentucky follows the American rule. See Kentucky State Bank v. AG Services, Inc., 663 S.W.2d 754, 755 (Ky.App.1984). Compensatory damages are “designed to equal the wrong done by the defendant.” Jackson v. Tullar, 285 S.W.3d 290, 297-98 (Ky.App.2007). Attorney fees, however, do not compensate the plaintiff for any wrong done by the defendant. Id.

It is the responsibility of the trial court, and not the jury, to determine the availability and amount of attorney fees. See Inn-Group Management Services, Inc. v. Greer, 71 S.W.3d 125, 130 (Ky.App.2002) (“What constitutes a reasonable attorney fee ... is an issue of law when the attorney and/or client seeks to recover a reasonable attorney fee from an opposing or third party.”); see also Kentucky State Bank, 663 S.W.2d at 755 (citing the “equitable rule that an award of counsel fees is within the discretion of the court depending on the circumstances of each particular case.”). It was improper in this case to instruct the jury on the issue of attorney fees or to enter judgment for such an award based on the jury’s verdict. This was a determination the trial court, in its discretion, should have made. We therefore remand this matter to the circuit court for a determination of whether attorney fees were warranted in light of a statute, contractual provision, or equitable consideration, and, if so, what amount is reasonable.

Our attention turns now to the other costs of investigation awarded by the jury. Gibson and Bowman acknowledged at oral argument that Kentucky law does not prohibit the recovery of investigative expenses as a matter of law. We agree. See Restatement (Second) of Torts § 549 Measure Of Damages For Fraudulent Misrepresentation (1977 & 2010 supp.) (a party deceived by “a fraudulent misrepresentation is entitled to recover as damages in an action of deceit against the maker the pecuniary loss to him of which the misrepresentation is a legal cause, including ... (b) pecuniary loss suffered otherwise as a consequence of the recipient’s reliance upon the misrepresentation.”); see also KRS 304.47-020(3) (allowing all persons, including insurers, who are victims of fraud “to recover compensatory damages, plus all reasonable investigation and litigation expenses, including attorneys’ fees” where appropriate).

We find unavailing their argument that there was no competent evidence to support the award of investigation expenses. This argument focuses on the lack of specificity of the evidence KFB presented in support of the claim for consequential damages. Specifically, their objection is that “[t]here was no itemization, no definitive numbers, just a series of ... estimates” offered by KFB’s investigator. However, while Kentucky law does not tolerate uncertainty as to the fact of damage (ie., recovery will not be had where there is uncertainty as to whether the damage has in fact occurred), once the existence of some damage is certain, uncertainty as to the amount of that damage will not defeat recovery. As this Court held in Johnson v. Cormney, 596 S.W.2d 23 (Ky.App.1979), overruled on other grounds by Marshall v. City of Paducah, 618 S.W.2d 433 (Ky.App.1981),

[a]ll recoverable damages are subject to some uncertainties and contingencies, but it is generally held that the uncertainty which prevents a recovery is uncertainty as to the fact of damage and not as to its amount. Where it is reasonably certain that damage has resulted, mere uncertainty as to the amount does not preclude one’s right of recovery or prevent a jury decision awarding damages.

Johnson at 27; see also Hanson v. American National Bank & Trust Co., 865 S.W.2d 302, 309 (Ky.1993) (to the same effect), overruled on other grounds by Sand Hill Energy, Inc. v. Ford Motor Co., 83 S.W.3d 483, 495 (Ky.2002). Thus, Kentucky law does not require KFB to provide exact calculations of its damage — an estimation may suffice if it proves damages with “reasonable certainty.”

In this case, there was no challenge, either by objection or cross-examination, that the misrepresentation was not the legal cause of any particular expense or that any expense was unreasonable as to the amount. In the absence of that challenge, and in light of the cited authority, KFB has met its burden in this matter. We see no reason to affect the jury’s award.

Award to defendant Gary Speth

Gibson’s and Bowman’s final ground for appeal is that the award of $14,000 to Speth was improper. More specifically, they argue their motion for a directed verdict should have been granted because the evidence did not support the conclusion Gibson and Bowman defrauded Speth. We agree.

The six elements of common-law fraud are: “(a) a material representation, (b) which is false, (c) known to be false or made recklessly, (d) made with inducement to be acted upon, (e) acted in reliance thereon, and (f) causing injury.” Wahba v. Don Corlett Motors, Inc., 573 S.W.2d 357, 359 (Ky.App.1978), citing Crescent Grocery Co. v. Vick, 194 Ky. 727, 240 S.W. 388 (1922). Speth could not prove all of these elements because he did not “act in reliance” upon any representation Gibson and Bowman made. All witnesses were in agreement that Speth never met or communicated with either Gibson or Bowman prior to trial. The critical misrepresentation alleged at trial was the insureds’ claim that the truck had been stolen, and the jury instructions reflected this. There was no evidence Gibson or Bowman made this representation to Speth or that he relied upon it. This constitutes a complete absence of proof on an essential element of fraud. The circuit court should properly have granted Gibson’s and Bowman’s motion for a directed verdict on this matter, and we therefore reverse the circuit court’s denial of that motion.

Conclusions

The circuit court’s refusal to strike for cause prospective jurors who were Kentucky Farm Bureau policyholders was not erroneous, and the judgment will not be reversed on that ground. While we find that the admission of the out-of-court statements of Fabian Sanchez was error, we will not reverse the judgment on that ground as the error was harmless. We hold that the award of KFB’s investigative costs were recoverable consequential damages the amount of which was proven with reasonable certainty and we will not reverse on that ground. However, we reverse the judgment to the extent of the jury’s award to KFB of attorney fees and remand the case for a judicial determination as to the propriety and amount of an award of attorney’s fees. Finally, we reverse the judgment to the extent of the award of $14,000 to Gary Speth because such judgment is not supported by substantial evidence.

ALL CONCUR.

      . While the back of the Certificate of Title is denominated "Assignment of Title”, the signa-lure line is captioned "Signature(s) of Sellers) To Be Notarized.”

      . During trial, numerous discrepancies were revealed between tire story Appellants told to KFB and the police in 2005 and their deposition testimony approximately a year later. This description is consistent with their earlier statements.

      . The jury was not instructed to determine whether Speth had been defrauded or to resolve the declaration of rights action.

      . The attorney who pursued this appeal on behalf of Gibson and Bowman is not the same attorney who represented them before the circuit court.

      . Counsel for KFB, in his opening statement to the jury, said one of the issues in the case was determining who owns the truck; however, there was no instruction on that matter. It was not an issue before the jury. The only options the jury was given were to find either-for KFB and Speth and therefore against Gibson and Bowman, or for Gibson and Bowman and against KFB and Speth. It is unclear from the record why the issue of the truck's ownership was not presented to the juiy.

      . The rationale is "that when one makes a declaration in disparagement of his own rights or interests it is generally true, and because it is so the law has deemed it safe to admit evidence of such declarations^]” Lawson § 8.45[2], citing Mercer’s Adm’r v. Mackin, 77 Ky. 434, 441-42 (1879).

      . Their brief implied the opposite argument. Counsel, however, affirmatively waived its assertion during oral argument.

      . The relevant portion of the Instruction 1 read, "You will find for the Plaintiff Kentucky Farm Bureau Mutual Insurance Company and for Gary Speth if you are satisfied by clear and convincing evidence as follows: a. That the Defendant Roy Gibson made representations to Kentucky Farm Bureau Mutual Insurance Company that his truck was stolen on or around June 1, 2005[.]” (emphasis added) Instruction 1A was identical, but substituted Clinton Bowman for Roy Gibson.