MCGINNIS (WILL) VS. KENTUCKY GAME EXCHANGE, L.L.C. , ET AL.
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RENDERED: OCTOBER 16, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-002154-MR
WILL MCGINNIS
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 08-CI-04065
KENTUCKY GAME EXCHANGE, LLC;
A-1 PORTABLE BUILDINGS, INC.; AND
STAN O. FISH
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: KELLER AND NICKELL, JUDGES; LAMBERT,1 SENIOR JUDGE.
KELLER, JUDGE: Will McGinnis (McGinnis) appeals from the circuit court’s
order dismissing his claims against Kentucky Game Exchange, LLC, (Game
Exchange), A-1 Portable Buildings, Inc. (A-1), and Stan O. Fish (Fish). On
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Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
appeal, McGinnis argues that the circuit court erroneously failed to permit him to
amend his complaint. According to McGinnis, had he been permitted to amend his
complaint, he would have had a viable cause of action against the Appellees,
making the circuit court’s dismissal also erroneous.
FACTS
On August 12, 2008, McGinnis filed a pro se complaint alleging that
the Appellees unlawfully placed a portable storage unit on property known as
Kentucky Game Exchange. According to the complaint, the placement of the
storage unit caused McGinnis’s building to flood, resulting in water damage to the
building. McGinnis sought compensation for the water damage as well as punitive
damages.
On September 24, 2008, Game Exchange and Fish filed a motion to
dismiss. In their motion, Game Exchange and Fish argued that McGinnis was not
the proper party to bring suit because the building was owned by Lexington Sports
Club, Inc., not McGinnis. Game Exchange and Fish also argued that McGinnis’s
complaint suffered from a number of other deficiencies. A-1 filed a similar motion
to dismiss on September 26, 2008. In his response, McGinnis stated that he was
the sole shareholder in Lexington Sports Club, Inc., and, as such, was “responsible
for all maintenance and all repairs of the property at his own expense.”
On October 3, 2008, the parties attended a hearing on the motions to
dismiss. After hearing argument from counsel and McGinnis, Judge Isaac stated
that she would grant McGinnis thirty days to amend his complaint and to retain
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counsel to represent the corporation. On October 9, 2008, Judge Bunnell issued an
order stating that McGinnis had thirty days to amend his complaint to substitute
Lexington Sports Club as plaintiff. In that order, Judge Bunnell admonished
McGinnis that, should he fail to do so, his complaint would be dismissed.2
On October 23, 2008, McGinnis filed a motion asking the court to
amend its October 9, 2008, order and for leave to amend his complaint. However,
McGinnis did not indicate how the order should be amended, and he did not file
his amended complaint until October 30, 2008. In his amended complaint,
McGinnis adopted the parts of his original complaint that alleged “his building”
had been damaged. Additionally, McGinnis alleged that Game Exchange and A-1
knew or should have known that placement of the temporary storage unit was
unlawful. McGinnis also alleged that he personally leased half of the square
footage of the building and that his personal property had been damaged. Finally,
McGinnis stated that:
[i]n reference to the Order entered October 9, 2008, [he]
NEVER had any intention of removing himself from this
complaint. At the time, he did not object to having the
Lexington Sports Club added to [the] complaint, because
as he stated in Court both Will McGinnis & Lexington
Sports Club have a claim; there are others who may have
claims too. However, it is [his] wish to proceed in this
matter as the only Plaintiff. If Lexington Sports Club or
any other claimant wish [sic] to file for damages that will
be their right. It will be very easy for Plaintiff to
distinguish between his personal property that was
damaged and those damages to the building which is
owned by the Lexington Sports Club.
2
It is unclear from the record why Judge Isaac conducted the October 3, 2008, hearing and
Judge Bunnell issued the October 6, 2008, order.
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(Emphasis in original.)
Following a hearing on October 31, 2008, the court entered an order
denying McGinnis’s motions to amend the order and to amend his complaint and
dismissing McGinnis’s complaint with prejudice. It is from this order that
McGinnis appeals.
ANALYSIS
McGinnis argues that, during the October 3, 2008, hearing, Judge
Isaac, who presided over that hearing, stated that McGinnis could add Lexington
Sports Club as a party, not that he was required to substitute Lexington Sports
Club as the plaintiff. We have reviewed the video record of that hearing and
McGinnis is correct that the parties discussed permitting him to amend his
complaint to add the Lexington Sports Club. However, Judge Isaac did not
mention the addition of the Lexington Sports Club, only the amendment of the
complaint. What is clear is that the order entered by Judge Bunnell states that
McGinnis must amend his complaint to substitute Lexington Sports Club as the
plaintiff. McGinnis argues that this inconsistency between what Judge Isaac said
and what Judge Bunnell wrote caused him to believe that he was free to remain as
the plaintiff and that Lexington Sports Club could, if it chose to do so, pursue its
own action.
We are not persuaded by McGinnis’s argument for four reasons.
First, a court speaks through its written orders. Midland Guardian Acceptance
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Corp. of Cincinnati v. Britt, 439 S.W.2d 313 (Ky. 1968). There is nothing unclear
about Judge Bunnell’s October 9, 2008, order. If there was an inconsistency
between what Judge Isaac said at the hearing and what Judge Bunnell’s order
contains, McGinnis should have obtained clarification from Judge Bunnell. While
McGinnis may have been attempting to do that with his October 23, 2008, motion,
he did not do so with any clarity. Furthermore, Judge Bunnell denied McGinnis’s
motion to amend the October 9, 2008, order, and we discern no error in that denial.
Second, regardless of whether McGinnis was ordered to add
Lexington Sports Club or to substitute it as the plaintiff, he did neither. Because
McGinnis did not comply with the court’s order, the court acted within its
discretion in dismissing his complaint. Kentucky Rule(s) of Civil Procedure (CR)
41.02.
Third, Lexington Sports Club was not only a proper party to the
litigation but an indispensable one. As mandated in CR 19.01, a party
shall be joined . . . in the action if (a) in his absence
complete relief cannot be accorded among those already
parties, or (b) he claims an interest relating to the subject
of the action and is so situated that the disposition of the
action in his absence may (i) as a practical matter impair
or impede his ability to protect that interest or (ii) leave
any of the persons already parties subject to a substantial
risk of incurring double, multiple, or otherwise
inconsistent obligations by reason of his claimed interest.
The Lexington Sports Club owned the building in question and a
portion of McGinnis’s initial and amended complaints made claims on behalf of
Lexington Sports Club. Furthermore, if, as McGinnis claims, he leased a portion
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of and had personal property on the premises, he not only had claims against Game
Exchange, A-1, and Fish, but also against Lexington Sports Club. Finally,
permitting McGinnis to proceed without Lexington Sports Club as a party would
have exposed Game Exchange, A-1, and Fish to the potential of multiple or
otherwise inconsistent obligations. As noted by defense counsel, even if McGinnis
could separate his personal property from Lexington Sports Club’s property,
permitting him to proceed without Lexington Sports Club as a party would expose
the defendants to multiple lawsuits arising from the same facts, a result CR 19.01
was authored to prevent.
Fourth, CR 17.01 provides that “[e]very action shall be prosecuted in
the name of the real party in interest . . . .” As noted by both Judges Isaac and
Bunnell, Lexington Sports Club, not McGinnis, is the real party in interest herein.
Therefore, dismissal of McGinnis’s complaint for failure to name the real party in
interest was appropriate. See Miller v. Paducah Airport Corp., 551 S.W.2d 241
(Ky. 1977).
CONCLUSION
For the foregoing reasons, we affirm the Fayette Circuit Court’s
dismissal of McGinnis’s complaint.
ALL CONCUR.
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BRIEF FOR APPELLANT:
Will McGinnis, pro se
Lexington, Kentucky
BRIEF FOR APPELLEE A-1
PORTABLE BUILDINGS, INC.:
John P. Brice
Lexington, Kentucky
NO BRIEF FOR APPELLEES
KENTUCKY GAME EXCHANGE,
LLC, OR STAN O. FISH
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