Opinion
NO. 2018-CA-000975-MR
10-11-2019
ACTON PROPERTIES, LLC APPELLANT v. DENISE PRIDDY a/k/a DENISE JACQUES APPELLEE
BRIEF AND ORAL ARGUMENT FOR APPELLANT: Jean Acton Louisville, Kentucky BRIEF FOR APPELLEE: Marque G. Carey Louisville, Kentucky Robert Frederick Smith Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HON. JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 15-CI-002547 OPINION
AFFIRMING IN PART, VACATING IN PART, AND REMANDING
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BEFORE: GOODWINE, SPALDING, AND L. THOMPSON, JUDGES. SPALDING, JUDGE: This appeal arises out of a lease executed between Acton Properties, LLC ("Acton" or "appellant"), Denise Priddy ("Priddy" or "appellee"), and Priddy's daughter, Kara Priddy ("Kara"), for an apartment located in Louisville, Kentucky. The lease contemplated payments of three hundred and ninety-five dollars ($395.00) per month. Payment was due on the twenty-sixth of each month. Appellee signed the lease, but never actually resided on the property.
It appears as though Kara paid the rent payments from November of 2012 up to March of 2013. In both January and March of 2013, plumbing repairs were required on the property that eventually required the use of a plumber. After employing the use of an auger, the plumber was able to repair the clogged drain. The apparent issue was Kara's attempted disposal of non-flushable material in the apartment's washroom.
There is some dispute between the parties concerning whether Kara paid the rent for March of 2013.
Thereafter, in March of 2013, an inspection of Kara's apartment took place. Again, an issue with the same drain was apparent. Ms. Acton and a plumber went to the apartment to perform the required repairs. The plumber removed a number of non-disposable items from the drain. Despite these attempted repairs, the toilet did not flush properly. Later inspection would reveal that a toothbrush had been lodged into the back of the toilet. Therefore, the unit was completely replaced.
After performing the described repairs and replacement, the plumber attempted to wash his hands. However, he discovered that the sink drain was clogged, as well. He repaired the sink drain at no additional cost.
Subsequently, appellant provided Kara with seven (7) days' notice to evacuate the premises. Thereafter, appellant filed an eviction petition against Priddy and Kara in Jefferson District Court. A hearing was held on the petition on May 13, 2013. The district court dismissed the action due to Kara's representations that she had vacated the premises and had returned the key to the apartment via certified mail.
The parties dispute whether Kara did or did not vacate the premises. The appellant alleges that "[a] seven day notice was given" and that "Kara did not vacate." Appellee, on the other hand, claims that "Kara had voluntarily vacated the premises prior to" May 13, 2013. Thus, it is unclear when Kara vacated the premises.
On December 16, 2013, appellant filed a second case in Jefferson District Court, alleging that appellee and Kara were responsible for $1,266.00 in damages, to be "tripled pursuant to KRS 381.400," as well as management fees of $412.50, eviction expenses of $85.00, and back rent of an amount at $395.00 per month. Eventually, the district court transferred the case to Jefferson Circuit Court.
During the progression of the circuit court case, both Kara and appellee filed for Chapter 7 bankruptcy in the United States Bankruptcy Court for the Western District of Kentucky ("Bankruptcy Court"). After appellee's bankruptcy case was converted to a Chapter 13, appellant filed a proof of claim therein. The Bankruptcy Court eventually entered an order modifying the automatic stay so that the parties could "proceed with the state court action for the purpose of liquidating the claim of the creditor, Acton Properties, LLC." Shortly thereafter, appellant submitted a Notice of Lifting of the Automatic Stay in Jefferson Circuit Court, as well as Form AOC-280, indicating that the case was ripe for final adjudication.
Appellant filed for summary judgment. Prior to ruling on the appellant's motion for summary judgment, the circuit court dismissed Kara as a party from the suit, likely in order to comply with the imposition of the automatic stay. The appellee filed her own motion for summary judgment. A hearing was held concerning the parties' motions for summary judgment on February 9, 2018, and on May 2, 2018, the circuit court entered an order denying the appellant's motion but sustaining the appellee's motion.
The appellant subsequently moved the court to alter, amend, or vacate the order denying the appellant's motion for summary judgment and granting the appellee's motion. Additionally, on June 13, 2018, the appellant moved the circuit court judge to recuse herself due to bias. The circuit court denied both motions, and this appeal followed.
The first issue we will address concerns the circuit court's denial of the appellant's motion to recuse. Appellant claims that the trial court's "vibes" and actions throughout the progression of the case evidenced a "bias" in favor of appellee, necessitating recusal.
"Judges of this Commonwealth have a 'duty to sit' absent valid reasons for recusal." Adkins v. Wrightway Readymix, LLC, 499 S.W.3d 286, 290 (Ky. App. 2016). "'A motion for recusal should be made immediately upon discovery of the facts upon which the disqualification rests. Otherwise, it will be waived.'" Johnson v. Commonwealth, 180 S.W.3d 494, 503 (Ky. App. 2005) (citing Bussell v. Commonwealth, 882 S.W.2d 111, 113 (Ky. 1994)). Furthermore, a reviewing court will apply an abuse of discretion standard when reviewing a trial court's denial of a motion to recuse. Adkins, 499 S.W.3d at 290 (citing Minks v. Commonwealth, 427 S.W.3d 802, 806 (Ky. 2014)). A trial court will be held to have abused its discretion only where the decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
The record reflects that appellant initiated the underlying action in Jefferson District Court and that the case was transferred to Jefferson Circuit Court on May 26, 2015. In its brief, appellant provides that the "trial court expressed her admiration for [counsel for appellee]" during the hearing of August 21, 2015, and would continue to do so "on subsequent occasions." In addition to this alleged "admiration," which constituted one of the grounds upon which appellant sought recusal, the appellant makes a plethora of further allegations but fails to make even one citation to the record in support of its claims.
Despite the significant amount of time that passed between transfer of the case from district to circuit court and the substantial number of alleged instances of demonstrable bias on the part of the trial court, the appellant did not file its motion for recusal until June 13, 2018 - over three (3) years after transfer of the case to the circuit court. In our view, under the circumstances present, the appellant's motion was untimely, and was therefore waived. Indeed, the appellant itself appears to concede the untimeliness of its motion - the circuit court's actions were "of utmost concern to the plaintiff and its counsel. So much so a Motion for Recusal was seriously contemplated and was never far from their minds. Hindsight now shows that it should have been made." The plain language of the appellant's motion here demonstrates that the motion for recusal was not made "immediately upon discovery of the facts upon which the disqualification rests." Thus, we hold that the circuit court judge did not err in refusing to recuse.
The second issue on appeal concerns the circuit court's granting of the appellee's motion for summary judgment. Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56.03. A trial court may grant summary judgment "only [. . .] where the movant shows that the adverse party could not prevail under any circumstances." Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991). In reviewing a lower court's entry of summary judgment, "[t]he record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor." Id. (citations omitted). Because factual findings are not at issue, a trial court's grant of summary judgment is reviewed de novo. Pinkston v. Audubon Area Community Services, Inc., 210 S.W.3d 188, 189 (Ky. App. 2006) (citing Blevins v. Moran, 12 S.W.3d 698, 700 (Ky. App. 2000)).
Kentucky Rules of Civil Procedure.
The appellant argues that the appellee had no support from the record upon which to base a motion for summary judgment. However, CR 56.02 clearly provides that a defending party - like the appellee below - "may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof." (Emphasis added.) Hence, the trial court had the authority to grant summary judgment for the defendant without an affidavit or offer of proof. However, there appears to have been issues of material fact as to how much the defendant may owe the plaintiff for its loss as to rent and fees.
In the matter at hand, the circuit court appears to have acknowledged that there are genuine issues of material fact where the appellant's claim for lost rent is concerned. The circuit court's May 2, 2018 Opinion and Order explicitly states the following: "Plaintiff has asserted a claim for lost rent representing the time between when the residence was vacated and when it was re-let. Although Defendant argues that Plaintiff failed to mitigate, presumably to increase damages, there are clearly issues of fact in this regard." (emphasis added). Therefore, summary judgment appears to have been improper based on the order of the circuit court itself. The appellant alleges that there was $4,345.00 in unpaid rent. It alleges it is owed management fees pursuant to the contract.
The appellee argued below that the "[appellant]'s claims against [appellee] are a result of [appellee] cosigning an apartment lease[.]" Therefore, she is not liable for the actions of the appellee's daughter and former defendant herein, Kara Priddy. However, it is undisputed that appellee signed the lease and was therefore bound to its terms, just as if she resided at the apartment. The lease provides that the signature of a co-signer represents "acknowledge[ment]" on the part of the co-signer that he or she had "read the [. . .] lease" and "understand[s] that by signing th[e] lease she becomes fully liable for all terms and conditions set forth therein including, but not limited to payment of rent, late fees and damages." See Caudill v. Acton, 175 S.W.3d 617 (Ky. App. 2004) (holding that the fact that an individual never resided in apartment did not relieve her of liability under terms of lease).
Subsection 17 of the lease provides that "[t]he tenant(s) shall not drive nails into the walls and/or woodwork nor alter the premises in any manner. The tenant(s) shall not apply paint, wallpaper, or contact paper to any part of the premises without the knowledge and written consent of the landlord." There is evidence of record to suggest that Kara violated subsection 17 of the lease. For instance, Anne Acton testified, by way of affidavit, that, among other things, "[t]here were holes in every wall" of the apartment, that "[s]everal construction type nails were left in walls," and that "[b]aseboard was pulled away from the wall in some sections."
Ms. Acton's affidavit testimony references the appellant's "Trial Brief" and states that the "factual statements contained therein are true and accurate."
Likewise, subsection 19 of the lease states, in pertinent part, that "[w]henever damage is caused by carelessness, misuse, neglect or willfulness on the part of the tenant(s), his/her family or visitors, the tenant agrees to pay [. . .] cost of all repairs [. . .] and [r]ent for the period the dwelling is damaged whether the dwelling is habitable." Again, affidavit testimony indicates that "damage" resulting from "carelessness, misuse, neglect or willfulness" may have included, but was not necessarily limited to, broken floor tiles and a broken smoke detector.
Finally, subsection 26 of the lease provides, in part, that, "[u]pon termination of the lease, the premises shall be left clean and in the same state of repair as at the beginning of the original lease." (emphasis in original). Yet again, there is evidence (i.e., testimony that the "walls in every room were dirty") that suggests that the home was left in a soiled state.
Thus, based upon the lease itself, in conjunction with evidence of record, there were genuine issues of material fact regarding the liability of appellee for damages from the inability to rent the apartment upon the appellees no longer occupying the apartment. Therefore, summary judgment was erroneous. The question of whether management fees were proper was left unaddressed by the court below and, therefore, is not before us and will need to be decided on remand.
The circuit court did determine that the appellant was not entitled to treble damages pursuant to KRS 381.400. KRS 381.400 provides: "[i]f, in any action for waste, the jury finds that the waste was wantonly committed, judgment shall be entered for three (3) times the amount of the damages assessed." The statute does not describe waste, nor who can sue for same.
The Court below relied on the case of Smith v. Mattingly, 16 Ky. L. Rptr. 418, 96 Ky. 228, 28 S.W. 503 (1894) for the proposition the statute applies only to those who hold a life estate. While that point may be a debatable one in regard to the interpretation of the statute, the appellant in neither its original brief or its reply brief makes any argument that it is incorrect as a matter of law. It is incumbent upon the appellant to present to this Court before submission all of his grounds for reversal. "Questions decided by the trial court, but not argued in the briefs, will not be considered by the Court of Appeals." Herrick v. Wills, 333 S.W.2d 275, 276 (Ky. 1959). Hence, the circuit court's decision in regard to the application of KRS 381.400 in this matter must be affirmed and appellant is not entitled to treble damages on any award.
The court below also decided that the appellant was not entitled to attorney fees. The court held that "Pursuant to KRS 383.660, attorney's fees are only appropriate where the tenant's conduct is 'willful'. As [the appellee's] failure to pay rent was the direct result of Plaintiff's retention of rent payments, it cannot be deemed willful." Willful is defined as "with deliberate intention, not accidentally or inadvertently, and done according to a purpose." KRS 383.545(17). The trial court held that the appellee did not willfully withhold rent and, therefore, the appellant was not entitled to attorney fees. The appellant argues that the damage to the property was caused by willful and wanton acts. There appears to be an issue of material fact in dispute. Therefore, the issue of attorney fees should be addressed anew at the end of the trial of the merits of this matter if the appellant is successful in its claim upon the lease.
The final issue on appeal is the argument of the appellant that it should have been granted summary judgment. "The general rule under CR 56.03 is that a denial of a motion for summary judgment is, first, not appealable because of its interlocutory nature and, second, is not reviewable on appeal from a final judgment where the question is whether there exists a genuine issue of material fact." Transportation Cabinet, Bureau of Highways, Commonwealth of Kentucky v. Leneave, 751 S.W.2d 36, 37 (Ky. App. 1988) (citing Bell v. Harmon, 284 S.W.2d 812 (Ky. 1955)). The only exception to this rule is where the facts are not in dispute, the only basis of the ruling is a matter of law, there is a denial of the motion, and there is an entry of a final judgment with an appeal therefrom. Id. In the matter at hand, the first two elements of the stated exception are not satisfied. Therefore, this Court cannot review whether or not the court below erred in failing to grant the appellant's motion for summary judgment.
Based on the foregoing, the summary judgment is vacated, and the matter remanded to the Jefferson Circuit Court for a trial on the merits of the factual disputes in this matter.
ALL CONCUR. BRIEF AND ORAL ARGUMENT
FOR APPELLANT: Jean Acton
Louisville, Kentucky BRIEF FOR APPELLEE: Marque G. Carey
Louisville, Kentucky Robert Frederick Smith
Louisville, Kentucky ORAL ARGUMENT FOR
APPELLEE: Marque G. Carey
Louisville, Kentucky