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holding that because the plaintiff had not stated a tort claim, "a cause of action for civil conspiracy cannot lie as a matter of law"
Summary of this case from Lyttle v. FarleyOpinion
NO. 2012-CA-000580-MR
03-08-2013
EDWARD H. FLINT APPELLANT v. COACH HOUSE, INC.; MARGARET WRIGHT; SHIRLEY SERGEANT; SARA JO HOOPER; KATHLEEN WINE; SUSAN KLEMPNER; JOYCE MCCLAIN; MULLOY PROPERTIES, INC.; JIM SCHUFFLEBARGER; NORMA SAVAGE; NANCY OSTERTAG; DENNIS FLEMING; JOYCE LOWRY; JANE DOES; AND JOHN DOES APPELLEES
BRIEFS FOR APPELLANT: Edward H. Flint, pro se Louisville, Kentucky BRIEF FOR APPELLEES: Robert T. Watson Chris J. Gadansky Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE FREDERIC COWAN, JUDGE
ACTION NO. 11-CI-005284
OPINION
AFFIRMING
BEFORE: MAZE, STUMBO AND THOMPSON, JUDGES. STUMBO, JUDGE: Edward H. Flint appeals from Orders of the Jefferson Circuit Court granting the Appellees' Motion to Dismiss and Motion for Summary Judgment in Flint's action alleging breach of contract and other claims related to water damage sustained at Flint's condominium. Flint, pro se, argues that the Coach House, Inc. homeowners' association and current and past Directors and others were contractually and statutorily bound to pay for damages caused by a water leak occurring in a common area water pipe, and that the Orders of dismissal and summary judgment were improperly rendered. Flint also seeks to have Circuit Judge Frederic J. Cowan "brought up on charges" and defense counsel barred from the practice of law, and asks this Court and the Kentucky Supreme Court to have this case investigated by the FBI. Having closely studied the record and the law, we find no error and accordingly affirm the Opinions and Orders on appeal.
Flint owns and occupies a condominium unit at the Coach House, Inc. (hereinafter "Coach House") condominium complex in Jefferson County, Kentucky. Coach House operates a condominium association composed of various board members who represent the owner-residents. On April 18, 2011, Flint noticed that his bathroom carpet was very wet. After looking around his bathroom and finding no reason the carpet should be wet, he notified the association president about two days later. A plumber was summoned, who determined that a water pipe in a common area was leaking. After the leak was repaired, Flint sought payment from the association. The association refused to make payment, alleging that under the terms of the Master Deed and the Kentucky Revised Statutes (KRS), it was not responsible for Flint's carpet. Flint, pro se, then filed the instant action in Jefferson Circuit Court setting out a number of causes of action against Coach House, and current and past directors. These claims included breach of corporate statutory duty, breach of fiduciary duty by past and present directors, breach of contract by the association's property management company, Mulloy Properties, Inc., breach of contract by the corporation for failing to cover damages caused by a defect in the common area, the torts of intentional infliction of emotional distress and outrage, and civil conspiracy.
In late 2011, the Defendant/Appellees filed a Kentucky Rules of Civil Procedure (CR) 12.02 Motion to Dismiss some of Flint's claims for failure to state a claim. After being briefed and having heard oral arguments, the circuit court rendered an Opinion and Order on December 11, 2011, granting in part and denying in part the Defendants' motion for relief. The court adjudicated the tort claims under a Summary Judgment standard as Flint had tendered documentation on these issues outside the pleadings. The substance of the Order dismissed each of Flint's claims other than whether Coach House breached its contractual and statutory duty to him to compensate him for the damage sustained by his individual condominium caused by the plumbing leak in the common area.
The matter proceeded on these remaining issues, whereupon the Defendants filed a Motion for Summary Judgment on the remaining contract and statutory claims. The court found in relevant part that a condominium unit owner is bound by the association's by-laws and the Master Deed, and that some of the controlling provisions of the Kentucky Condominium Act, KRS Chapter 381, were amended effective January 1, 2011. In so doing, the court found persuasive Coach House's contention that the definition of "unit" in Section 3 of the Master Deed, rather than the definition in KRS 381.810, is controlling. This resulted in the court concluding that individual condominium owners, like Flint, were responsible for the "decorated" or interior spaces of the condominium unit. After applying the standard set out in Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky. 1991), the court granted Coach House's Motion for Summary Judgment as to Flint's remaining contractual and statutory claims. This appeal followed.
Flint now argues that the Jefferson Circuit Court committed reversible error in granting the Defendant/Appellees' Motion to Dismiss and Motion for Summary Judgment. As best we can discern from Flint's pro se written argument, he is contending the Jefferson Circuit Court erred in concluding that the following causes of action failed to state a claim upon which relief could be granted: 1) breach of statutory duties by the corporate entity and breach of fiduciary duty by past and present directors; 2) breach of contract by the property management company; 3) intentional infliction of emotional distress and the tort of outrage; and, 4) civil conspiracy. In what may be best described as a diatribe chastising the judiciary generally, and Judge Cowan specifically, Flint directs our attention to other lawsuits arising from the same operative facts, which he has filed in Jefferson District Court, Jefferson Circuit Court, and the United States Federal Court for the Western District of Kentucky. Flint argues that the instant action has not met with success largely or exclusively due to judicial bias, and he casts a number of unsavory assertions at Judge Cowan including claims that Judge Cowan has a "sickness of the mind," and is biased, vindictive and more interested in "money, sex or hatred" than justice. He seeks the intervention of the Kentucky Supreme Court and the FBI to investigate the matter, and goes on to restate the claims set out in his complaint and argue that they were improperly dismissed. Additionally, and directing our attention to Steelvest, supra, Flint contends that Summary Judgment on the breach of contract claim was improperly rendered. He seeks an Order reversing the circuit court's Order dismissing the majority of his causes of action, as well as the Summary Judgment on the breach of contract claim. If remanded, Flint seeks a change of venue.
In its December 21, 2011 Opinion and Order dismissing the majority of Flint's complaint for failure to state a claim upon which relief could be granted, Judge Cowan determined that these causes of action, in addition to breach of contract by the corporation for failure to pay damages arising from the common area defect, were those which Flint stated or attempted to state in his complaint. Flint maintains in his appellate brief that the complaint set out 31 allegations.
In adjudicating Coach House's Motion to Dismiss, the Jefferson Circuit Court examined each cause of action, which we will consider in turn.
BREACH OF STATUTORY AND FIDUCIARY DUTIES
Flint maintained that the corporate entity and past and present directors breached their standards and fiduciary duties to him as set out in KRS 271.215 and KRS 273.229. In addressing these contentions, and whether they stated a claim upon which relief could be granted, the circuit court noted that these same claims had been raised against the same defendants in at least one prior action filed by Flint and disposed of therein. That point aside, the court determined that Flint did not allege any facts which could demonstrate that the defendants did not "act in good faith and with due regard to the interests" of the unit owner as set out in Steelvest, supra. Additionally, the court found that Flint had not pointed to any statutory provision prohibiting the policy or actions of Coach House nor the board, thus entitling the movants to an order dismissing this claim. We find no error, and accordingly affirm on this issue.
BREACH OF CONTRACT
Flint maintains that the property management company, Mulloy Properties, breached its contract with Coach House when Mulloy sent a letter to Flint denying payment for the wet carpet. In addressing this issue, the court noted that Flint had appended documents outside the pleadings, thus converting the matter to a Motion for Summary Judgment. CR 12.02. The court went on to find that Flint was not in privity with Mulloy, and did not contend or otherwise demonstrate that he was a third-party beneficiary to the contract. Sexton v. Taylor County, 692 S.W.2d 808 (Ky. App. 1985). See also Flint v. Coach House, Inc., 2011 WL 4502348 (Ky. App. 2011), wherein a panel of this Court previously disposed of an unrelated claim of breach of contract by Flint against Mulloy Properties arising from Mulloy's service contract with Coach House. In the instant case, and as this issue is considered under the summary judgment standard, it appears impossible for Flint to produce evidence at trial warranting judgment in his favor on this issue. Steelvest, supra. We find no error.
In this action, Flint unsuccessfully prosecuted several causes of action against the instant defendants, including Mulloy Properties, alleging that Coach House improperly imposed a fee for the refurbishment of the common areas.
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INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND TORT
OF OUTRAGE
Flint alleges that the defendants harassed and humiliated him by removing items from mailboxes and community bulletin boards, and by circulating a sheet of paper with jokes directed at him. The circuit court determined that the elements of intentional infliction of emotional distress and/or outrage are: a) the wrongdoer's conduct must be reckless, b) the conduct must be so outrageous and intolerable that it offends the generally accepted standards of decency and morality, c) there must be a causal connection between the wrongdoer's conduct and the emotional distress, and d) the emotional distress must be severe. Kroger Co. v. Willgruber, 920 S.W.2d 61 (Ky. 1996). The issue of whether the conduct is so outrageous as to permit recovery is a question of law for the court to decide. Goebel v. Arnett, 259 S.W.3d 489 (Ky. App. 2007). The Jefferson Circuit Court determined that the conduct alleged could not rise to the level of outrage encompassed by Kroger. This conclusion is supported by the record and the law, and we find no error.
CIVIL CONSPIRACY
[Civil] conspiracy . . . has been defined as "a corrupt or unlawful combination or agreement between two or more persons to do by concert of action an unlawful act, or to do a lawful act by unlawful means." Smith v. Board of Education of Ludlow, 264 Ky. 150, 94 S.W.2d 321, 325 (1936). In order to prevail on a claim of civil conspiracy, the proponent must show an unlawful/corrupt combination or agreement between the alleged conspirators to do by some concerted action an unlawful act. Montgomery v. Milam, 910 S.W.2d 237, 239 (Ky. 1995).Peoples Bank of Northern Kentucky, Inc. v. Crowe Chizek and Co. LLC, 277 S.W.3d 255, 260-261 (Ky. App. 2008). "Importantly, however, civil conspiracy is not a free-standing claim; rather, it merely provides a theory under which a plaintiff may recover from multiple defendants for an underlying tort." Stonestreet Farm, LLC v. Buckram Oak Holdings, N.V., 2010 WL 2696278 (Ky. App. 2010) (citing Davenport's Adm'x v. Crummies Creek Coal Co., 299 Ky. 79, 184 S.W.2d 887, 888 (1945)).
In the matter at bar, the circuit court properly determined that Flint had not stated a claim, which if true, would sustain an action for breach of a fiduciary duty or the tort of outrage. As such, a cause of action for civil conspiracy cannot lie as a matter of law and the circuit court properly so found.
A Motion to Dismiss for failure to state a claim should not be granted unless it appears that the pleading party would not be entitled to relief under any set of facts which he could prove. Pari-Mutuel Clerks' Union, Local 541 v. Kentucky Jockey Club, 551 S.W.2d 801 (Ky. 1977). The complaint should not be dismissed merely because the allegations do not support the precise legal theory alleged, since the court is under a duty to examine a complaint to determine if it provides for relief under any legal theory. Phillips & Kramer, 6 Kentucky Practice at 267 (6th Ed. 2005). Finally, when considering a motion to dismiss, the pleadings should be liberally construed in a light most favorable to the plaintiff. Morgan v. Bird, 289 S.W.3d 222 (Ky. App. 2009). In applying these standards to the matter at bar, we find no error in the circuit court's conclusion that Coach House, the individual directors and Mulloy Properties were entitled to the dismissal of the foregoing claims.
Flint also alleged that Coach House breached its contract with him as a unit owner when it failed to agree to pay or repair the carpet damage in his unit caused by the leaking pipe in the common area. The issue was disposed of on March 19, 2011, when the circuit court sustained the defendants' Motion for Summary Judgment. In addressing this issue, the court stated as follows:
A condominium unit owner is bound by the association's by-laws and by the Master Deed to the property. The association as an entity is also bound by [its] by-laws and the Master Deed. Until 2011, the relationship between an individual unit owner and the condominium association was governed primarily by the Horizontal Property Law, KRS 381.805, et. seq. In 2010, the Kentucky General Assembly adopted the Kentucky Condominium Act, KRS 381.9101, effective January 1, 2011. Some of the provisions of the new statute apply to condominiums created before January 1, 2011, and others do not. KRS 381.9103 . Some of the provisions have continuing effect. In order for the provisions of KRS 381.9101 to 381.9207 to apply to condos built before January 1, 2011, as here, the condo unit owners must unanimously affirm and adopt their application. KRS 381.9103(4). Otherwise, the former statute shall apply. In this case, KRS 381.810(1), a provision of the former statute defining "unit," applies since neither party has presented any evidence that the condo unit owners have adopted the new statutory provisions.
KRS 381.820(1) defines "unit" as follows: "'Unit' means an enclosed space as measured from interior unfinished surfaces consisting of one or more rooms occupying all or part of a floor in a building of one or more floors or stories regardless of whether it be designed for residence, for office, for the operation of any industry or business, for any other type of independent use or any combination of the above uses,
provided it has a direct exit to a thoroughfare or to a given common space leading to a thoroughfare."
Also of relevance here are provisions of the Master Deed. In particular, Section (3)(b) of the Master Deed provides that: "Each Unit shall consist of the space enclosed and bounded by the horizontal plan of the undecorated finished surfaces of the ceiling, floor, and perimeter walls of each unit as are shown on said plans attached thereto[.]
The circuit court went on to determine that the definition of "unit" in Section 3 of the Master Deed, rather than the definition in KRS 381.810, is controlling. In so doing, it concluded that Flint failed to provide any evidence that the unit owners adopted the new provisions of the law; therefore, the statute is not applicable. Additionally, the court found that Flint pointed to no case law or provision of the Master Deed that required the association to be responsible for damage originating with the common elements.
Summary judgment "shall be rendered forthwith if 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. "The 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." Steelvest, 7 S.W.2d 476 at 480. Summary judgment should be granted only if it appears impossible that the nonmoving party will be able to produce evidence at trial warranting a judgment in his favor. Id. "Even though a trial court may believe the party opposing the motion may not succeed at trial, it should not render a summary judgment if there is any issue of material fact." Id. Finally, "[t]he standard of review on appeal of a summary judgment is whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996).
When viewing the record in a light most favorable to Flint and resolving all doubts in his favor, we must conclude that the trial court correctly found that there were no genuine issues of material fact and that Coach House, et al., were entitled to summary judgment as a matter of law. The court determined that the carpeted area at issue is a "decorated" interior space not subject to Coach House's dominion, control or responsibility, and that Flint could not prevail on this issue were the matter to progress to trial. Additionally, it is noteworthy that Flint is asserting a contract rather than simple negligence cause of action. He cannot prevail on the contract claim, and the Jefferson Circuit Court properly so found. Flint's argument relating to venue on remand is therefore moot. Finally, we are vested with neither the authority nor the inclination to implicate the FBI in a matter which was properly adjudicated below.
For the foregoing reasons, we affirm the Jefferson Circuit Court's Opinion and Order granting partial dismissal, as well as the Opinion and Order granting summary judgment.
ALL CONCUR. BRIEFS FOR APPELLANT: Edward H. Flint, pro se
Louisville, Kentucky
BRIEF FOR APPELLEES: Robert T. Watson
Chris J. Gadansky
Louisville, Kentucky