MICHAEL FENNESSY AND IRISH- AMERICAN BLOODHORSE AGENCY, LTD. v. JOE DODGEN, D/B/A SEVEN FOLD FARM
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RENDERED: MAY 3, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001774-MR
MICHAEL FENNESSY AND IRISHAMERICAN BLOODHORSE AGENCY, LTD.
v.
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE LAURANCE VAN METER, JUDGE
ACTION NO. 99-CI-01208
JOE DODGEN, D/B/A SEVEN FOLD FARM
AND
APPELLANTS
NO.
APPELLEE
2000-CA-001886-MR
JOE DODGEN, D/B/A SEVEN FOLD FARM
APPELLANT
v.
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE LAURANCE VAN METER, JUDGE
ACTION NO. 99-CI-01208
MICHAEL FENNESSY AND IRISHAMERICAN BLOODHORSE AGENCY, LTD.
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, EMBERTON, AND KNOPF, JUDGES.
APPELLEES
KNOPF, JUDGE:
In April 1999, Joe Dodgen brought suit on behalf
of Seven Fold Farm, a thoroughbred boarding operation in Fayette
County, against Irish-American Bloodhorse Agency Ltd. and its
owner, Michael Fennessy.
Dodgen sought past-due boarding fees
and other charges related to the care of Fennessy’s horses.
Fennessy responded in May 1999 by contesting some of Dodgen’s
charges and by entering a counter-claim for damages allegedly
resulting from Dodgen’s tardiness in presenting two of Fennessy’s
mares for breeding.
In December 1999, Dodgen began adding an
interest charge of two percent per month to past due amounts and,
as of January 1, 2000, purported to raise Fennessy’s boarding
fee.
The matter was heard by the court without a jury in
June 2000.
By order entered July 21, 2000, the court awarded
Dodgen boarding fees at the pre-January 2000 rate and expenses
for worming medication and farrier’s services.
It also awarded
him pre-judgment interest on amounts due prior to January 1,
2000.
The total award was in excess of $48,000.00.
The court
denied Dodgen’s claim for veterinary expenses, and it denied
Fennessy’s counterclaim.
Both parties appealed.
In appeal no. 2000-CA-001886, Dodgen contends that he
should have been awarded pre-judgment interest for the period
from January 1, 2000, until judgment and that he should have been
reimbursed for the alleged veterinary charges.
In appeal no.
2000-CA-001774, Fennessy contends that, contrary to the court’s
finding, he proved the existence of substantial damages as a
result of the late breeding of his mares and that even if he did
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not prove substantial damages he was entitled to an award of
nominal and possibly punitive damages.
Convinced that neither
appeal merits relief, we affirm the trial court’s judgment.
Dodgen contends that even if his increased charges
after January 1, 2000, are not to be allowed, he should still be
awarded pre-judgment interest on the basic charges outstanding
from that date until judgment.
In denying interest for that
period, the trial court found that Dodgen’s unilateral imposition
of interest charges and increased fees as of January 1, 2000, was
not authorized under the oral contract between the parties and
likely interfered with the settlement of the dispute.
Dodgen
challenges neither of these findings, and both are supported by
substantial evidence.
A party, of course, is not entitled to
damages he could reasonably have avoided.1
Because Dodgen likely
contributed to his own injury by prolonging the period he was
deprived of his funds, the trial court did not err by limiting
his award of pre-judgment interest accordingly.
Next, Dodgen contends that the court overlooked his
claim for veterinary expenses.
His complaint included a claim
for such expenses totaling almost $5,000.00.
trial that amount had become $6,170.00.
By the time of
Dodgen’s proof, however,
did not include an itemization of that amount, and there was
evidence both that Fennessy had not authorized some of the
services and that some of the charges had been included in other
bills.
1
Be that as it may, the written judgment makes no mention
Smith v. Ward, Ky., 256 S.W.2d 385 (1953); Restatement (Second) of Contracts, § 350
(1981).
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of this claim, and in its oral findings the court refers only to
a $105.00 veterinary charge.
If Dodgen wished to preserve this
issue for appeal, it was his duty to request the court to make an
adequate finding.2
His failure to do so constitutes a waiver of
this alleged error and precludes our review.3
Fennessy’s appeal concerns the breeding of two of his
mares.
In February 1999 he contracted for stud services, and the
subject mares became eligible in March and April.
Dodgen knew,
Fennessy alleges, where the mares were to be bred, that they were
to be bred as early in the season as possible, and he knew when
they became ready.
Nevertheless, he deliberately failed to
arrange the breeding until compelled to do so in June 1999.
This
late breeding, Fennessy contends, not only resulted in the foals
being worth less than they would have been had they been
conceived earlier in the year, but also diminished the value of
the mares, which either would continue to bear late, lower-valued
foals or would need to be left barren for a season.
The trial court ruled that Fennessy had failed to
substantiate the alleged damages; it denied his claim, therefore,
without deciding whether Dodgen had breached a duty.
Fennessy
contends that he adequately proved his alleged compensatory
damages.
He also contends that the court erred by failing to
rule on Dodgen’s breach and to consider, if there was a breach,
Dodgen’s liability for nominal and punitive damages.
convinced that there was no reversible error.
2
CR 52.04.
3
Crain v. Dean, Ky., 741 S.W.2d 655 (1987).
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We are
As Fennessy notes, Kentucky’s courts recognize lost
profits as an element of compensatory damages, but only if the
fact of loss is established with reasonable certainty and only
then if there is some reasonable basis for estimating the
amount.4
Thoroughbred breeding, of course, is notoriously
speculative.5
Here, Fennessy offered expert testimony to the
effect that thoroughbred breeders prefer their foals to be born
as early in the year as possible and that late breeding can
lessen a foal’s value.
Birth date, however, is only one of many
factors bearing on that value, and the expert could not say,
either in general or in any given case, how important the birthdate factor was.
It might be significant or it might be
completely overshadowed by something else.
Not surprisingly
then, when the court asked whether his estimate of Fennessy’s
losses was speculative, the expert readily admitted that it was.
We agree with the trial court that this testimony did not satisfy
the above standard of proof and that Fennessy was not entitled to
compensatory relief.
Nor did the court err by denying, in effect, Fennessy’s
claim for punitive damages.
It is true, as Fennessy suggests,
that tort damages may be appropriate for improper interference
with contractual or advantageous relations6 and even for an
4
Pauline’s Chicken Villa, Inc. v. KFC Corp., Ky., 701 S.W.2d 399 (1985); Illinois Valley
Asphalt, Inc. v. Harry Berry, Inc., Ky., 578 S.W.2d 244 (1979).
5
Schleicher v. Gentry, Ky. App., 554 S.W.2d 884 (1977).
6
NCAA v. Hornung, Ky., 754 S.W.2d 855 (1988).
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egregious breach of a party’s own contract.7
The general rule,
however, is that contract remedies and tort remedies are to
remain distinct.8
As part of this distinction, punitive damages
are not available for a breach of contract.9
No doubt aware of
this rule, Fennessy characterizes Dodgen’s alleged breach as a
tort, but in essence he is claiming that, by breaching a term of
their agreement, Dodgen deprived him of the benefit of his
bargain.
Punitive damages are thus inappropriate.
Dodgen’s alleged spitefulness would not change this
result.
Neither the alleged act--even if spiteful--nor the
alleged harm--a purely economic loss and one of the foreseeable
risks of the business--suggests the outrage that justifies an
award of punitive damages.10
The trial court did not err,
therefore, by effectively dismissing this aspect of Fennessy’s
claim.
It remains possible that Fennessy should have been
awarded nominal damages.
Nominal damages are appropriate for a
breach of contract where substantial damages either did not
result or can not be proved.11
7
By declining to rule on Dodgen’s
Wittmer v. Jones, Ky., 864 S.W.2d 885 (1993).
8
Freeman & Mills, Inc. v. Belcher Oil Company, 900 P.2d 669 (Cal. 1995); Story v. City
of Bozeman, 791 P.2d 767 (Mont. 1990); Quinn Companies, Inc. v. Herring-Marathon Group,
Inc., 773 S.W.2d 94 (Ark. 1989).
9
Freeman & Mills, Inc. v. Belcher Oil Company, supra. KRS 411.184(4).
10
Owens-Corning Fiberglass Corporation v. Golightly, Ky., 976 S.W.2d 409 (1998);
Fowler v. Mantooth, Ky., 683 S.W.2d 250 (1984).
11
USACO Coal Company v. Liberty National Bank & Trust Company, Ky. App., 700
S.W.2d 69 (1985). Restatement (Second) of Contracts § 346 (1981).
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alleged breach, the trial court left the nominal-damages issue
undecided.
Unless there is an exceptional reason merely to
vindicate the asserted right, however, “a court will not reverse
and remand a case . . . if only nominal damages could result.”12
We are not persuaded that a remand is called for in this case.
Although a formal ruling on the question of Dodgen’s breach might
provide some marginal satisfaction to the parties, the rights
involved are well recognized and in no need of special
vindication.
Accordingly, in both appeal no. 2000-CA-001774 and
appeal no. 2000-CA-001886, we affirm the July 21, 2000, judgment
of the Fayette Circuit Court.
ALL CONCUR.
BRIEF FOR MICHAEL FENNESSY AND
IRISH-AMERICAN BLOODSTOCK
AGENCY, LTD.:
BRIEF FOR JOE DODGEN:
Joe Dodgen, pro se
Lexington, Kentucky
William A. Dykeman
Dykeman & Rosenthal
Winchester, Kentucky
12
Restatement (Second) of Contracts § 346 comment b. (1981).
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