GLENN D. PARRISH AND BRENDA PARRISH v. ROBERT POPPY CONSTRUCTION AND EXCAVATING, LLCAnnotate this Case
RENDERED: JULY 27, 2007; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
GLENN D. PARRISH AND BRENDA PARRISH
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE JOHN R. GRISE, JUDGE
ACTION NO. 04-CI-01819
ROBERT POPPY CONSTRUCTION AND EXCAVATING,
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BEFORE: NICKELL AND TAYLOR, JUDGES; PAISLEY,1 SENIOR JUDGE.
PAISLEY, SENIOR JUDGE: This is an appeal from a judgment of the Warren Circuit
Court, entered on March 2, 2006. Following a jury trial, the court awarded Robert Poppy
Construction and Excavating, LLC, the balance and interest owing on a contract Poppy
had entered into with Glenn D. and Brenda Parrish. The Parrishes then filed a motion for
a new trial which was denied. Having reviewed the record and applicable case law, we
find no error on the part of the trial court and therefore we affirm.
Senior Judge Lewis G. Paisley sitting as Special Judge by assignment of the Chief Justice
pursuant to section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
Robert Poppy is the manager and majority member of Robert Poppy
Excavating, LLC, which provides excavation and construction services in the Warren
County area. The Parrishes are co-owners of several tracts of land in the Countryside
Manor Subdivision.2 Poppy had previously worked under contract with Parrish on part of
Section VII of the subdivision to install sewer and water facilities, and streets. During
2003, Glenn D. Parrish solicited bids from various contractors to develop Section X, a
tract consisting of nineteen lots. After lengthy negotiations, and consultations with the
project engineer, Ralph Anderson, Jr., Poppy submitted a successful bid of $124,900.00.
He submitted itemized “bid sheets” that assigned a cost to each individual task involved
in preparing the lots for development, such as excavation, leveling, and installing sewers
and driveways. The contract between Poppy and Parrish was memorialized in a one-page
document entitled “Work Agreement,” signed when the two men met in Bowling Green
on December 26, 2003. It consisted of a preprinted form with handwritten entries. A
serious dispute arose at trial about which was the “real” work agreement because the
plaintiff and the defendant’s copies differed significantly in one important detail:
Parrish’s copy specified a “completion date” for the project of March 30, 2004; whereas
Poppy’s copy specified a “target completion date” of March 30, 2004. Both versions of
the agreement described the job as “Turn key construction of Countryside Manor X.”
Inspection fees were to be paid by the developer, Parrish. Both agreements also specified
that payments to Poppy were to be made in installments, $20,000.00 on the date of the
Brenda Parrish testified that she had no direct involvement in the development of the
subdivision, or in the contractual matters between her husband and Poppy. She is a party to the
action only by virtue of her joint ownership of the real property.
agreement, $20,000.00 upon completion of the sewer system, $40,000.00 upon
completion of the water system and the balance of $44,900.00 upon completion of the
When Poppy began working on the project, he hit hard limestone rock in
Section X, which he claimed slowed the project down drastically. Heavy rains also led to
delays in the work. During the course of the construction, various jobs that were listed on
Poppy’s bid sheet, such as the construction of a dry well, the extension of a fire hydrant,
and the installation of fourteen headwalls, were not performed, or were modified. Poppy
claimed these omissions and modifications were made on the advice and with the
approval of the project engineer. An error was also made in the placement of a drainage
As the project finally neared completion during September, 2004,
approximately five months after the “completion date” or “target completion date”
specified in the work agreement, Poppy feared that Parrish was not going to pay the final
installment of the contract price, which at that time stood at $19,977.49, plus $25,272.00,
the amount for which Poppy had sub-contracted with an asphalt company to pave the
streets in Section X. At the end of September, Poppy filed a mechanic’s and
materialman’s lien in the amount of $45,249.45 against Parrish’s property in the Warren
County Clerk’s Office. At that time, Parrish had not recorded the plat for Section X, so
the legal description of the land against which the lien was taken included the entire
parcel from which Section X had been developed. After the lien was filed, Parrish
obtained an updated legal description of Section X from his project engineer, and
requested that the lien be amended to include only Section X. Poppy accordingly filed an
amendment to the lien on October 13, 2004.
On December 9, 2004, Parrish filed suit against Poppy, claiming breach of
contract. He later filed an amended complaint. Essentially, Parrish argued that the list of
items in the bid sheet formed part of the contract he had made with Poppy, and that when
Poppy did not perform these tasks, or modified them, he had breached the contract.
Parrish argued that he was entitled to collect the amounts specified on the bid sheets for
these individual items. He also contended that Poppy had failed to complete the project
within the time frame specified in the work agreement. Parrish also alleged that the lien
filed against his property by Poppy was improper and retaliatory. The complaint sought
both compensatory and punitive damages. Poppy counterclaimed, seeking payment of
the balance due on the contract of $19,977.49.
At trial, a unanimous jury found for Poppy on all issues. He was awarded
the balance due with interest. Parrish moved for a new trial. The motion was denied and
this appeal followed.
We begin by setting forth our standard of review:
As a general rule,
[t]he decision of a trial court to overrule a motion for a new
trial will not be disturbed on appeal absent a manifest error or
abuse of discretion. In undertaking our analysis of the trial
judge’s . . . decision not to allow a new trial here, we must be
mindful that the decision is presumptively correct, and that
we cannot reverse unless it was clearly erroneous.
Embry v. Turner, 185 S.W.3d 209, 213 (Ky.App. 2006).
Furthermore, our case law has long held that
[i]t is the function of the jury to determine questions of
credibility and issues of fact where the evidence is
conflicting. While the trial court has a broad judicial
discretion in granting or refusing a new trial, it may not set
aside a verdict of a jury because it does not agree with the
verdict if there was sufficient evidence to support it.
Id. at 213.
Parrish’s first argument on appeal is that the trial court erred in not granting
him a new trial because the jury disregarded the jury instructions in arriving at their
verdict. The evidence showed that Poppy failed to construct a dry well, extend a fire
hydrant, install fourteen driveway headwalls, and install gravel in seven driveways.
These were all items listed on the bid sheets that Poppy submitted when he was bidding
for the contract to develop Section X. Parrish maintains that he should have received the
cost of each uncompleted item as his damages. He argues that the fact that the jury did
not award him any damages shows that they disregarded the evidence and the jury
instructions, which stated as follows:
Instruction No. 1
It was the duty of the defendant, Robert Poppy Construction
and Excavating, LLC, under the agreement that it entered on
December 26, 2003, with plaintiffs, Glenn D. Parrish and
Brenda Parrish, to complete the work in a good and
workmanlike manner, and under the terms that both the
plaintiffs and the defendant understood at the time of the
agreement. If you are satisfied from the evidence that the
defendant, Robert Poppy Construction and Excavating, LLC,
substantially performed this duty, you will find in its favor
and award it the sum of $19,977.49, which is the unpaid
balance of the contract price, less, however, such amount as
you may find the Parrishes to be entitled to deduct under
Instruction No. 2.
If you are satisfied from the evidence that defendant,
Robert Poppy Construction and Excavating, LLC, did not
substantially perform this duty, then you shall determine from
the evidence and award it a sum of money in addition to the
amount it has already received that will compensate the
defendant, Robert Poppy Construction and Excavating, LLC,
for the value of the work it performed, not to exceed
Instruction No. 2
Even if you award money to defendant, Robert Poppy
Construction and Excavating, LLC, under Instruction No. 1,
but are further satisfied from the evidence that the defendant’s
work under the contract was incomplete or defective, then
you shall determine from the evidence the reasonable costs of
remedying the defective performance, not to exceed $9,790,
and award that amount to the Parrishes, which figure the
Court will then set off against any amount you have awarded
to the defendant, Robert Poppy Construction and Excavating,
LLC, under Instruction No. 1.
Parrish contends that because Poppy did not complete the items, his work
was unquestionably incomplete and/or defective.
This argument, however, presupposes that the bid sheets formed part of the
contract between Poppy and Parrish. This issue came up shortly before trial on a motion
in limine. The trial court ruled that the bid sheets were not part of the contract, noting
that the one-page work agreement had no attachments, and made no incorporations by
reference. The court also specifically stated that the contract was not divisible; in other
words, that the plaintiff could not subtract the cost of individual items from the total
contract price. Significantly, the work agreement described the project as “turnkey,”
which supports the view that it was not divisible. The construction and interpretation of a
contract are questions of law, to be decided by the court. Frear v. P.T.A. Industries, Inc.,
103 S.W.3d 99 (Ky. 2003). The court held that if the jury believed that there was
substantial performance of the contract, they could so find and then subtract what it
would cost to fix any shortcomings from the amount (the remaining principal) to be
awarded to Poppy.
Therefore, it was within the province of the jury to decide whether there
was substantial performance of the contract. Our review of the record indicates that there
was substantial evidence to support their finding. Testimony from the project engineer
and others showed that the items Poppy did not complete which were listed in the bid
sheets were either not needed or completed in a different manner. There was no error in
the determination that Parrish had incurred no damages as a result of these alleged
Parrish’s next argument relates to Poppy’s building of a drainage ditch in
the wrong location. He maintains that this was clearly defective work, and that he should
have been awarded $3,000.00 in damages as this was the cost of the ditch in the bid list
submitted by Poppy. Expert witness Dennis Smith testified that it was the project
engineer’s responsibility to perform the initial survey of the property and to stake the
primary features. The project engineer did not do so. Evidence was also presented at
trial that Parrish and his project engineer were both mistaken as to the location of the
ditch due to the encroachment of a neighbor’s fence on the property. There was,
therefore, more than sufficient evidence presented to support the jury’s conclusion that
Poppy was not responsible for the erroneous placement of the ditch.
Parrish next argues that the jury erred in finding under instruction three that
the plaintiffs had suffered no damage from Poppy’s delay in completing the project. As
we have already noted, two different versions of the work agreement were presented to
the jury, one of which specified a completion date and the other a target completion date.
It is the “function of the jury to determine questions of credibility and issues of fact
where the evidence is conflicting.” Embry, 185 S.W.3d at 213. Substantial evidence was
presented to support the determination of the jury that March 30, 2004, was merely a
target date, and that Poppy had presented reasonable explanations for the delays in the
Parrish next addresses the matter of an affidavit submitted by the jury
foreman, Joe Hullett, claiming it is proof that the jurors had been manipulated and bullied
by Hullett, whom he describes as very assertive and persuasive juror, into reaching the
unwarranted and outrageous conclusion that Parrish had set out to cheat Poppy. Hullett
provided the affidavit at the request of Poppy’s attorney after Parrish filed his motion for
a new trial. The affidavit states in pertinent part as follows:
Neither passion nor prejudice were part of the deliberation by
the jury. We followed the Court’s instructions and made our
decisions based upon the evidence. . . . We did believe that
Glenn Parrish was rude, conniving, and overbearing. We
believed that Glenn Parish set out to cheat Mr. Poppy.
While there were a lot of issues to consider in this trial, it was
interesting that when the jury was instructed to deliberate the
case under the Court’s instructions that the notes we took
were very similar, and even comments were similar.
“Issues of credibility are solely within the purview of the finder of fact and a reviewing
court will not substitute its judgment for the jury’s on such matters.” Pate v.
Commonwealth, 134 S.W.3d 593, 599 (Ky. 2004). The jury found Poppy more credible
than Parrish; we may not substitute our judgment for that of the jury on this matter.
Parrish next argues that the trial court erroneously refused to give specific
jury instructions relating to water inspections and topsoil removal. He contends that
Poppy made him incur additional expenses for allegedly unnecessary water inspections.
Under the terms of the work agreement, Parrish was responsible for the cost of these
inspections. Parrish claims that he had to pay additional expenses because Poppy was not
present at the work site when the inspectors arrived, or because the job did not pass
inspection and the inspector had to return at a later date in order to reinspect. Parrish also
contends that Poppy removed and sold topsoil from Section X without his approval. On
appeal, he argues that the trial court erred in failing to give specific jury instructions on
these two matters.
From the case law and commentary, it is clear that Kentucky
law mandates the use of “bare bones” jury instructions in all
civil cases. . . . [J]ury instructions should refrain from
elaborating on an abundance of detail, but still strike the
proper balance in providing enough information to a jury to
make it fully aware of the respective legal duties of the
Olfice, Inc. v. Wilkey, 173 S.W.3d 226, 229 (Ky. 2005). “The concept [of barebones
instructions] permits the instructions to be 'fleshed out' in closing argument.”
Lumpkins ex rel. Lumpkins v. City of Louisville, 157 S.W.3d 601, 605 (Ky. 2005).
When we apply this “barebones” standard, it is clear that the issue of the
allegedly unnecessary inspection fees was adequately covered by instruction one, which
asked the jury whether the agreement was performed as understood by the parties at the
time of the agreement, and instruction three which directed them to award damages for
delays caused by Poppy. The issue of the topsoil removal was similarly covered by
instruction one, which also asked to jury whether the agreement was performed in a
“good and workmanlike manner.” Furthermore, counsel for Parrish did not take the
opportunity to “flesh out” the jury instructions by raising the issue of the inspections or
the topsoil removal in his closing argument.
Parrish’s final argument concerns the lien. He contends that it was an
attempt by Poppy to wrongfully extort money, by filing a lien against the entire
subdivision, not just Section X; by filing the lien before payment was due under the
contract and while the job was still incomplete; by filing the lien for substantially more
than the amount that would have been owing under the contract and by refusing to reduce
the excessive claim until the day of the hearing into the matter, which he claims caused
him to incur unnecessary and substantial attorney’s fees, bank fees, and costs relating to
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the release of the bond premium. Parrish argues that the trial court should have instructed
the jury on all of these issues, whereas it only instructed on the attorney’s fees.
The record shows that the trial court granted a directed verdict that the lien
was proper and timely. The court also granted a directed verdict for the defendant on the
issue of the breadth of the lien description, finding it was the narrowest legal description
the defendant had of the property at the time. The court noted that the defendant revised
the description when one was provided by the plaintiffs. The court also found that the
plaintiffs were unable to show any damages stemming from the alleged delay in filing the
revised description. The trial court directed a verdict on bond costs and bank fees
because they were not incurred as the result of any delay, and were incidental to the lien
which the court had already determined was not improperly filed. Parrish has not
appealed the grant of the directed verdict on any of these issues. His attempt to
resuscitate the argument through a challenge of the jury instructions is without merit.
Similarly, his argument that the jury disregarded the instruction that was
given regarding the attorney’s fees is without merit. He contends that he submitted
uncontradicted evidence that he incurred $2,602.50 in attorney’s fees in connection with
the lien. But the court had already directed a verdict on the propriety of the lien;
therefore, any attorney’s fees incurred could not be damages assessed against Poppy
unless they were incurred as the result of an unreasonable delay in reducing the amount
of the lien.
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In light of this discussion of the lien, and Parrish’s failure to appeal the
directed verdict on this issue, his argument that he was entitled to an instruction on
punitive damages stemming from the lien is moot.
Similarly, the appellees’ argument that the instruction on attorney’s fees
was erroneous is moot.
The judgment of the Warren Circuit Court is affirmed.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE:
Chester I. Bays
Bowling Green, Kentucky
Lanna Martin Kilgore
Bowling Green, Kentucky
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