J. MASON DEVELOPMENT, INC.; AND JOHN I. MASON, JR. v. CELESTINE HOMES, INC.; AND PNC MORTGAGE OF AMERICA, INC.
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RENDERED:
JANUARY 12, 2007; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000791-MR
J. MASON DEVELOPMENT, INC.; AND
JOHN I. MASON, JR.
APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES M. SHAKE, JUDGE
ACTION NO. 97-CI-004439
v.
CELESTINE HOMES, INC.; AND
PNC MORTGAGE OF AMERICA, INC.
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON1 AND TAYLOR, JUDGES; BUCKINGHAM,2 SENIOR JUDGE.
JOHNSON, JUDGE:
J. Mason Development, Inc. and John I. Mason
(collectively “Mason”) have appealed from an order of the
Jefferson Circuit Court entered on February 4, 2004, upholding a
mechanic’s lien of Celestine Homes, Inc., awarding Celestine
1
Judge Rick A. Johnson completed this opinion prior to the expiration of his
term of office on December 31, 2006. Release of the opinion was delayed by
administrative handling.
2
Senior Judge David C. Buckingham sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and Kentucky Revised Statutes (KRS) 21.580.
$17,319.00, and dismissing Mason’s counterclaim against
Celestine.
Having concluded that the trial court’s decision is
supported by substantial evidence, we affirm.
John I. Mason, Jr. is the sole shareholder of J. Mason
Development, Inc., which was formed in 1994 as a real estate
developer and general contractor.
In 1996 Mason decided to
build a personal home in Jefferson County, Kentucky.
Prior to
beginning construction, Mason met with Charles Priestap the
owner and president of Celestine and offered Celestine the job
of supervising the construction of Mason’s home.
Mason and
Celestine, however, never entered into a written agreement
regarding the construction of the home or the consideration to
be paid to Celestine for its work on the project.
According to Mason, Celestine was to be the on-site
construction supervisor and was to receive as its fee 15% of the
hard costs of construction with the hard costs being capped at
$600,000.00.
Celestine agrees that it was to be the on-site
construction supervisor, but asserted that its fee was to be
$90,000.00 regardless of the hard costs of construction.
Construction of the home began in April 1996, and continued
until February 1997, when Mason terminated Celestine’s services.
Celestine notified Mason on March 3, 1997, that a mechanic’s
lien would be filed on the home.
Celestine filed the lien on
March 4, 1997, in the amount of $17,319.00, which was the
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difference between the amount previously paid by Mason to
Celestine and $90,000.00.
Celestine then filed a complaint against Mason seeking
to recover the amount allegedly owed under the lien.
Mason
filed an answer and counterclaim against Celestine seeking
damages for alleged delays in the construction and cost
overruns.
After discovery, both Mason and Celestine agreed to
submit the case by brief to the Jefferson County Master
Commissioner for a decision.
The Master Commissioner issued his report on January
29, 2004.
As an initial matter, the Commissioner found that the
basic elements of a contract were not present.
As such, there
was no basis for imposing a verbal contract between Mason and
Celestine in regard to the construction of the home.
The
Commissioner thus held that Celestine’s claim against Mason was
for quantum meruit.
The Commissioner then found that, although
Mason and Celestine disagreed on how Celestine’s compensation
was to be determined, under both of their interpretations
Celestine was entitled to $90,000.00, if it fully performed.
regard to Mason’s counterclaim, the Commissioner found that
Mason was not entitled to any damages for Celestine’s alleged
delay in completing the project because Mason, as the general
contractor of the project, was responsible for the completion
date.
Finally, the Commissioner found that the project was
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In
substantially complete at the time Celestine’s services were
terminated, as only trim work, some painting, carpeting, and
punch list type items remained, and Celestine was entitled to
full payment of $90,000.00.
On February 6, 2004, the trial court entered its
judgment adopting the Commissioner’s report, awarded Celestine
$17,319.00, and dismissed Mason’s counterclaim.
Mason then
filed a motion to alter, amend, or vacate3 the February 4, 2004,
order, which the trial court denied on March 19, 2004.
This
appeal followed.
Mason contends the judgment was not supported by
substantial evidence and was clearly erroneous.
Specifically,
Mason alleges that the trial court (1) failed to consider
offsets due him for the project not being completed within six
months, (2) failed to reduce the judgment in favor of Celestine
due to Priestap’s alleged absence from the job for a month, and
(3) failed to calculate Mason’s damages for additional mortgage
costs due to delay in the project’s completion.
“Findings of fact shall not be set aside unless
clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge the credibility of the
witnesses.
The findings of a commissioner, to the extent that
the court adopts them, shall be considered as the findings of
3
Kentucky Rules of Civil Procedure (CR) 59.
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the court.”4
“A factual finding is not clearly erroneous if it
is supported by substantial evidence” [footnote omitted].5
“‘Substantial evidence’ is evidence of substance and relevant
consequence sufficient to induce conviction in the minds of
reasonable people” [footnote omitted].6
All of Mason’s allegations of error center around his
contention that the Commissioner’s ruling was clearly erroneous
because it failed to consider evidence of damages Mason
allegedly sustained as a result of Celestine’s failure to
complete the project on time.
Mason does not, however, make any
challenge to the trial court’s findings which include:
(1) that
there was no contract between the parties; (2) that Mason, not
Celestine, was the party responsible for the completion of the
project; and (3) that the project was substantially complete
when Celestine was fired.
These adverse findings to Mason are
fatal to Mason’s other claims that he incurred damages as a
result of Celestine’s alleged delay in completing the project.
As shown by the trial court’s detailed discussion
concerning the existence of a contract between Mason and
Celestine, the trial court considered all of the evidence
4
CR 52.01. See also Sherfey v. Sherfey, 74 S.W.3d 777, 782 (Ky.App. 2002);
and Greater Cincinnati Marine Service, Inc. v. City of Ludlow, 602 S.W.2d
427, 429 (Ky. 1980).
5
Sherfey, 74 S.W.3d at 782.
6
Id.
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presented to it by the parties.
It found that no contract
existed, that Celestine’s claim was for quantum meruit, that
Mason was responsible for the completion of the project, and
that the project was substantially complete when Celestine was
fired.
This decision was supported by substantial evidence and
was not clearly erroneous.
The trial court properly ruled,
based upon its findings, that Mason was not entitled to any
offsets from the alleged delay in the project’s completion.
Based upon the foregoing, the judgment of the
Jefferson Circuit Court is affirmed.
BUCKINGHAM, SENIOR JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Joseph E. Blandford, Jr.
Louisville, Kentucky
Janie Asher Hite
Bardstown, Kentucky
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