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Commonwealth Of Kentucky Court of Appeals
NO. 2002-CA-002536-MR

ANGIE MONAHAN

APPELLANT

v.

APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE LAURANCE B. VANMETER, JUDGE ACTION NO. 99-CI-03826

L. DOUGLAS KENNEDY AND L. DOUGLAS KENNEDY, M.D., P.S.C.

APPELLEES

OPINION AFFIRMING

** ** ** ** ** BEFORE: DYCHE, GUIDUGLI, AND McANULTY, JUDGES. Angie Monahan appeals from an October 14, 2002,

DYCHE, JUDGE.

judgment of the Fayette Circuit Court in which, after trial, a jury found her former employer, L. Douglas Kennedy, M.D., not liable to her for breach of an alleged oral agreement. According to Monahan, Kennedy agreed to pay her an ongoing bonus based on her efforts to increase the amount of collections in his medical practice.

Prior to trial, the Fayette Circuit Court excluded certain cell phone billing records and, during trial, excluded the testimony of two of Kennedy's former employees regarding bonus agreements they had with Kennedy. Monahan argues that the

circuit court erred when it excluded the phone records and the former employees' testimony. Finding that the circuit court did

not abuse its discretion, we affirm. While briefly working in Denver, Colorado, for Dr. Gary Jay, Kennedy met Monahan, who worked as Dr. Jay's office manager. practice. Monahan managed the collections for Jay's medical Kennedy soon returned to his own practice in According to Monahan, Kennedy was

Lexington, Kentucky.

experiencing problems with the outside collections agency that managed his billing and his collections were lower than he had anticipated. Kennedy decided to handle his collections in-house

and, knowing Monahan was an expert in medical collections, contacted her in late 1996 and asked her to work for him. According to Monahan, Kennedy was desperate for her help and he persistently called her via his cell phone until she agreed. Since Kennedy could not afford to pay Monahan more than $30,000.00 per annum, he agreed, according to Monahan, to pay her a yearly bonus of ten percent of the amount she collected in excess of his 1995 collections, which were approximately $586,422.00. Kennedy allegedly agreed to pay her this bonus in

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perpetuity and each subsequent year's collections were to be compared to the 1995 amount to calculate the current year's bonus. writing. The parties never reduced this alleged agreement to On April 4, 1999, Monahan resigned and shortly She alleged that he had

thereafter filed suit against Kennedy.

failed to honor the bonus agreement and had, in fact, constructively terminated her employment. Prior to trial, Monahan sought, by motion, the circuit court's permission to present, pursuant to KRE 404(b), the testimony of two of Kennedy's former employees. According to

Monahan's trial counsel, the former employees would have testified that they too had bonus agreements with Kennedy that he had failed to honor. On April 25, 2002, the circuit court Later at trial, Monahan

excluded the employees' testimony.

sought to introduce cell phone billing records that Kennedy had produced during discovery. Monahan's trial counsel attempted to

introduce these records through Monahan during her direct testimony. However, Kennedy's counsel objected and argued that

Monahan must present the testimony of a records custodian to authenticate the records. Monahan's counsel argued that no such

witness was required since Kennedy had produced the records and the mere act of producing the records authenticated them. The

circuit court sustained Kennedy's objection and excluded the phone records.

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On appeal, Monahan argues that the Fayette Circuit Court erred when it excluded the cell phone billing records. Monahan argues, according to KRE 901(a), that it was unnecessary to have a records custodian authenticate the phone records since they were obviously what she claimed them to be. Monahan

contends the records were authentic because Kennedy never questioned their veracity and because he produced the records in response to her discovery request. Alternatively, Monahan Furthermore,

claims that the records were self-authenticating. Monahan cites KRE 901(b)(1), which provides for the

authentication of a document by a person with knowledge. Monahan insists that both she and Kennedy were persons with knowledge and that either could have testified regarding the phone records' authenticity. Finally, Monahan argues that,

according to KRE 901(b)(a), a document may be authenticated by its distinctive characteristics and that the phone records were so distinctive as to be easily identifiable. However, Monahan

fails to describe the records' distinctive characteristics. Monahan argues that the circuit court also erred when it excluded the testimony of Kennedy's former employees. According to Monahan, the employees would have testified about bonus agreements they had with Kennedy that he failed to honor. Monahan argues that the circuit court should have allowed the employees to testify pursuant to KRE 404(b) since their

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testimony constituted evidence of other crimes, wrongs or acts. Pursuant to KRE 404(b), evidence other crimes, wrongs or acts is admissible at trial to show intent. Monahan meant to use the

employees' testimony to show Kennedy's intent to violate KRS 337.385, which addresses an employer's liability for unpaid wages and liquidated damages. Furthermore, Monahan relies upon

Zimmerman v. First Federal Sav. and Loan Ass'n, 848 F.2d 1047 (10th Cir. 1988). The Zimmerman court held that, pursuant to

Federal Rules of Evidence 404(b), evidence of other crimes, wrongs or acts is admissible unless the sole purpose for its admission is to prove the defendant's disposition. Monahan

argues that she intended to use the employees' testimony for purposes other than to prove Kennedy's disposition; thus, the circuit court should have allowed the employees to testify. When we consider a trial court's evidentiary decision on appeal, we use abuse of discretion as our standard of review. Goodyear Tire and Rubber Co. v. Thompson, Ky., 11 S.W.3d 575, 577 (2000). Kennedy points out that Monahan failed to tender the records as an avowal exhibit and failed to present avowal testimony that would authenticate the cell phone billing records. Citing Commonwealth v. Ferrell, Ky., 17 S.W.3d 520

(2000), and Garrett v. Commonwealth, Ky., 48 S.W.3d 6 (2001), Kennedy insists that Monahan failed to preserve the records

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issue for appeal.

We agree.

Monahan's trial counsel did indeed

fail to take the necessary steps to preserve this issue for appeal. However, even if the issue were properly preserved, Monahan would still not prevail. Regarding the introduction and

use of business records at trial, we find Professor Robert G. Lawson's legal treatise, The Kentucky Evidence Law Handbook

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