SANDERS (JAMIE) VS. ANDERSON VICTORY HAVEN TRAINING CENTER, LLC

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RENDERED: OCTOBER 30, 2009; 10:00 A.M. NOT TO BE PUBLISHED MODIFIED: FEBRUARY 26, 2010; 10:00 A.M. Commonwealth of Kentucky Court of Appeals NO. 2008-CA-002220-MR JAMIE SANDERS v. APPELLANT APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE KIMBERLY N. BUNNELL, JUDGE ACTION NO. 08-CI-02548 ANDERSON VICTORY HAVEN TRAINING CENTER, LLC APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: STUMBO, THOMPSON, AND WINE, JUDGES. STUMBO, JUDGE: Jamie Sanders appeals from an Order and Final Judgment of the Fayette Circuit Court in an action filed by Anderson Victory Haven Training Center, LLC to recover back rent from Sanders. Sanders argues that the trial court improperly increased the damages award in favor of the Training Center after it lost jurisdiction over the action. For the reasons stated below, we affirm the Order and Final Judgment on appeal. Sanders is a thoroughbred horse trainer, and the Training Center operates a facility providing horse stalls and a training track to thoroughbred horse trainers. In early 2008, Sanders and the Training Center entered into two lease agreements providing several horse stalls to Sanders at the Training Center’s facility. The term of the leases was from March 1, 2008 to July 31, 2009. On May 23, 2008, the Training Center filed the instant action against Sanders alleging breach of contract and unjust enrichment. It also sought liens under KRS Chapter 376 on horses trained by Sanders but owned by third parties. Sanders answered, asserting several affirmative defenses, and requested a jury trial. She also filed a counterclaim against the Training Center seeking damages arising from the allegedly improper levy of liens on the horses trained by her but owned by the third parties. On July 8, 2009, the Training Center moved for Summary Judgment and sought dismissal of Sanders’ counterclaim. After hearing proof on the motion, the Circuit Court rendered an Order sustaining the Training Center’s motion on July 30, 2008. The Order awarded damages of $18,832.29 for lost rent through May 8, 2008. The Order also stated that the Training Center’s claims for potential additional damages and Sanders’ counterclaim remained pending. Thereafter, the Training Center moved for Summary Judgment on Sanders’ counterclaim, which the trial court sustained by way of Order rendered on September 2, 2008. 3 On September 15, 2008, the Training Center moved to alter or amend the September 2, 2008 Order to increase the amount of damages awarded by the July 30, 2008 Summary Judgment. And finally, on October 27, 2008, a Judgment was rendered increasing the total damage award to $63,560.16. The award represented damages incurred by the Training Center through October 10, 2008, arising from additional stall rent, late fees and interest accrued through that date. The award also included $1,125 as agreed to by the parties as the amount for the Training Center’s property damages claim. This appeal followed. Sanders now argues that the October 27, 2008 Order and Final Judgment increasing the damage award to $63,560.16 is void because the Training Center’s motion for additional damages was filed in excess of 10 days after the September 2, 2008 Summary Judgment in favor of the Training Center on Sanders’ counterclaim. Sanders maintains that the Order and Final Judgment is void because the Circuit Court lost jurisdiction over the action 10 days after entry of the September 2, 2008 Summary Judgment. Sanders directs our attention to CR 59.05 and Johnson v. Smith, 885 S.W.2d 944 (Ky. 1994), in support of her argument that the Training Center was required to move to amend the damage award, if at all, within 10 days of September 2, 2008, and that its failure to do so operated to make the September 2, 2008 Summary Judgment final and appealable on or about September 12, 2008. She also claims that her failure to raise this argument below is of no consequence, because a party cannot waive the trial court’s divestiture of its jurisdiction. She seeks an Order reversing the October 27, 2008 Order and 4 Final Judgment with directions that the Circuit Court reinstate the original $18,832.39 award. We have carefully examined the written arguments, the record and the law, and find no error. CR 59.05 states that a “. . . motion to alter or amend a judgment, or to vacate a judgment and enter a new one, shall be served not later than 10 days after entry of the final judgment.” Sanders’ claim of error hinges on her assertion that the September 2, 2008 Summary Judgment was a final resolution of all claims which operated to start the 10-day clock, and which divested the Circuit Court of any further jurisdiction over the action after the 10-day period expired. We are not persuaded by Sanders’ argument for at least two reasons. First, the September 2, 2008 Summary Judgment which she claims started the 10day clock was not a resolution of the Training Center’s claim for damages. Rather, that Judgment disposed of Sanders’ counterclaim against the Training Center. Second, and as important, the Fayette Circuit Court stated in its July 30, 2008 Order sustaining the Training Center’s motion for Summary Judgment that, “Plaintiff’s claims for potential additional damages . . . remain pending.” This language is clear and unambiguous, and serves to place Sanders, the Training Center and other interested parties (such as the horse owners) on notice that this issue remained pending for later adjudication. These claims continued to remain pending until they were adjudicated by way of the October 27, 2008 Order and Final Judgment, as this was the first ruling on the Training Center’s claim for additional damages. It is also worth noting that the Training Center’s motion for a 5 final judgment did not, as Sanders contends, seek to amend the September 2, 2008 Summary Judgment in Favor of Plaintiff on Defendant’s Counterclaims. Rather, the motion was styled “Motion For Order Establishing Additional Damages Through the Present Date and for Entry of Final Judgment.” By filing it, it is clear that the Training Center was seeking resolution of the very claim which the Fayette Circuit Court held for later adjudication in its July 30, 2008 Order. In the alternative, Sanders argues that even if the trial court retained jurisdiction to alter or amend its Final Order of September 2, 2008, it committed reversible error by awarding additional damages. We are not persuaded by this argument. Evidence was adduced in support of the additional damages in the form of the affidavit of Lucian Anderson, an authorized agent of the Training Center. Anderson stated that additional rent, late charges, utility costs and fees accrued during the pendency of the case from June to September, 2008. Specifically, Anderson noted in his affidavit that Sanders was indebted to the Training Center in the amount of $18,832.29 for stall rent and board of the horses and related expenses through May 8, 2008. He went on to contend that Sanders received rent from subtenants from March 1 through May 18, 2008, but failed to pay any rent to the Training Center for those stalls during that period. Anderson also detailed the costs for rent, service charges, repairs and late fees accruing from May 8 through September 19, 2008, in the amount of $52,664.81. Sanders does little to rebut Anderson’s affidavit other than repeat her jurisdictional argument that the Training Center’s motion for additional damages was untimely. 6 Since a Summary Judgment involves no fact finding, it is properly reviewed de novo with no deference to the trial court’s conclusions. De Jong v. Leitchfield Deposit Bank, 254 S.W.3d 817 (Ky. App. 2007). Summary judgment is appropriate “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 proper function of summary judgment is to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). The party opposing Summary Judgment must present affirmative evidence in order to defeat a properly supported motion for summary judgment. O'Bryan v. Cave, 202 S.W.3d 585, 587 (Ky. 2006)(quoting Steelvest at 481). We are persuaded that Anderson’s calculations properly establish the correct amount of damages incurred by the Training Center after May 8, 2008. Sanders has not presented affirmative evidence sufficient to defeat the Training Center’s properly supported motion for Summary Judgment on the issue of additional damages. The Training Center was entitled to $63,560.16 through October 10, 2008, inclusive of the $18,832.29 set forth in the Circuit Court’s July 30, 2008 Order, and the Fayette Circuit Court properly so found. We find no error. 7 For the foregoing reasons, we affirm the Order and Final Judgment of the Fayette Circuit Court. ALL CONCUR. BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE: William C. Jacobs Lexington, Kentucky Carroll M. Redford, III Lexington, Kentucky 8

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