Petrilli Appeal Denied

Court of Appeals Affirms Judge Ishmael in Petrilli Case

Procedural Error Helps Sink Petrilli

The “failure to specifically object

to the final written instructions means

the objection to the language. . .

has not been properly preserved for our review.”

--Kentucky Court of Appeals

Despite negative comments made during oral arguments by two of the three appeals court judges regarding jury instructions in the Petrilli case, the panel upheld those instructions in favor of the lower court and the Fayette County Schools today.

Former Booker T Washington Academy Principal Peggy Petrilli had appealed an August 14, 2009, judgment of the Fayette Circuit Court dismissing, with prejudice, her claims against defendants, Fayette County Public Schools Superintendent Stu Silberman, and the Fayette County Board of Education.

Silberman and the Board cross appealed, asserting several errors by the trial court.

The Appeals Court ruling can be found by searching 2009-CA-001925 at the court's website.

Despite the judges' misgivings about the jury instruction, the court ultimately agreed with school district Attorney John McNeill that Petrilli did not "preserve the issue" of the threshold jury instruction for appellate review.

Failure to preserve an issue for review is a procedural matter for the courts. As I understand it, in order to “preserve” an issue for appellate review, the attorney must object to the matter during the trial, and it must be ruled on by the judge. McNeil argued successfully that Petrilli's Attorney J. Dale Golden’s objections came during a preliminary hearing, not during the trial itself.

The full court reasoned,

Petrilli argues that the trial court erred in creating a threshold jury instruction that superseded the elements for reverse discrimination, retaliation, and violation of the Kentucky Whistleblower Act.

The jury was given the following threshold jury instruction: “Do you believe from the evidence that the Plaintiff, Peggy Petrilli, voluntarily resigned from her position as principal of Booker T. Washington Academy on August 27, 2007?”

The jury marked “yes” and returned to the courtroom where the trial judge discharged them from further duties. Ms. Petrilli argues that the threshold instruction was given in error because it is completely different from the elements of her claims for reverse discrimination, retaliation, and violation of the Kentucky
Whistleblower Act.

The appellees argue that Petrilli did not preserve the issue of the threshold jury instruction for appellate review. In support of this argument, the appellees argue that Petrilli cites a discussion before the close of proof for the preservation of this issue. However, the record reveals that this was a preliminary discussion over the general structure of the jury instructions. According to the appellees, the trial court made it clear that it had put together an amalgamation set of instructions which included elements of both the Plaintiff and Defendant’s tendered instructions “for a
place to start” in drafting the final instructions.

According to the appellees, the trial court did not issue its final jury instructions until later that day, and only after the close of proof. Petrilli made no objection at that time to the threshold Question No. 1, and instead only objected to Jury Instruction No. 1, and her objection only dealt with whether the instruction should include a finding that Petrilli was a member of a protected class as it pertained to the reverse discrimination claim.

The “failure to specifically object to the final written instructions means the objection to the language. . . has not been properly preserved for our review.” Boland-Maloney Lumber Co., Inc. v. Burnett, 302 S.W.3d 680, 690 (Ky.App. 2009). Kentucky Rules of Civil Procedure (CR) 51(2) and (3) provide:

(2) After considering any tendered instructions ... the court shall show the parties the written instructions it will give the jury, allowing them an opportunity to make objections out of the hearing of the jury.

(3) No party may assign as error the giving or the failure to give an instruction unless he has fairly and adequately presented his position by an offered instruction or by motion, or unless he makes objection before the court instructs the jury, stating specifically the matter to which he objects and the ground or grounds of his objection.
Because Ms. Petrilli did not object to the threshold jury instruction at the close of proof, we agree with the appellees that she did not preserve this argument for review on appeal.

Petrilli argues that simply tendering her own jury instructions preserved this issue for appeal. We disagree. In Boland, the Appellant submitted its own instructions, and in lieu of objecting to the language they later took issue with on appeal, asked the court if they could “stand on their instructions as submitted.” Id. at 690.

A panel of this Court held that the particular language the Appellant argued on appeal was improper, had not been objected to specifically, and thus the matter was
not properly preserved for appeal. In the instant case, Petrilli objected to a different jury instruction regarding her inclusion in a protected class for her reverse discrimination claim, but did not specifically object to the “voluntary” language contained threshold Question No. 1. Accordingly, Petrilli did not preserve this argument for appeal to this Court.

But that's not all. The court turned 180 degrees from their comments during oral arguments and concluded,

We agree with the appellees that the trial court’s reasoning for including the threshold jury instruction/question was basic and correct. If the jury believed from the evidence that Petrilli voluntarily resigned, then necessarily they must not have believed she was constructively discharged.

Judges Acree and Thompson agreed with the majority in the result only, and Judge Thompson wrote a separate opinion citing his disagreement with the court's analysis in the jury instruction finding. However, he writes that,

Despite my disagreement with the majority’s legal analysis, I nevertheless concur in the result because, at the close of trial, the appellees were entitled to a directed verdict. The evidence established that the parents, not the school board, were the perpetrators of the conduct complained of by Petrilli.

Perhaps Silberman's strongest argument throughout the case was his offer to return Petrilli to Northern Elementary. In a footnote the court agreed saying,

"a lateral transfer of a principal is not even considered a demotion as defined by [KRS 161.720]...Therefore, Silberman could have sent Petrilli back to Northern Elementary without her consent and without recourse. However, she declined the lateral transfer and instead resigned her position."