STEPHEN D. PRICE v. WILL MCGINNIS, ARTHUR SALOMON, DAVID R. O'BRYAN, AND DICK TINGLE
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RENDERED:
FEBRUARY 16, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002880-MR
STEPHEN D. PRICE
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE GARY D. PAYNE, JUDGE
ACTION NO. 94-CI-02525
v.
WILL MCGINNIS, ARTHUR SALOMON,
DAVID R. O’BRYAN, AND DICK TINGLE
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
McANULTY, MILLER, AND TACKETT, JUDGES.
TACKETT, JUDGE:
This is an appeal by Stephen D. Price, pro se,
from an order of the Fayette Circuit Court dismissing his lawsuit
on the grounds that the complaint failed to state a claim upon
which relief can be granted.
We affirm.
The facts as set forth by Price are as follows.1
In
1980, Price rented a garage at 318 Park Avenue, Lexington,
Kentucky, from Henry Nadig.
Price used the garage for storage of
his business equipment and as a workshop and office.
On the
surrounding plot, Price raised seedling trees in a small nursery
and installed a small, experimental root-cellar in conjunction
with his horticulture study at the University of Kentucky.
In August 1989, Dick Tingle, a real estate agent,
advised Price that the garage, along with the apartment house in
front of it and the grounds around the garage, had been sold.
Tingle told Price that the new owner desired use of the garage,
and that Price should move out as soon as possible.
The property
had been for sale for several years, and Price assumed a buyer
had been found and began preparing to move.
A short time later, Will McGinnis moved into the
apartment house on the property.
McGinnis advised Price that he
was the new owner of the property, that he wanted use of the
garage as soon as possible, and that Price should vacate the
premises within thirty days.
Price thereupon commenced vacating
the garage and spent the month of September 1989 moving his
effects to a barn located in Sadieville, Kentucky.
1
The trial court record does not include an averment of the
facts of the case, and the material included in Price’s statement
of the case does not appear in the trial record. Such extraneous
material should not be included in a brief. Rankin v. Blue Grass
Boys Ranch, Inc., Ky., 469 S.W.2d 767, 769 (1971). However, in
consideration that Price is a pro se litigant, and in order to
present a rendition of the facts of the case, we have refrained
from striking Price’s statement of the case. See Beecham v.
Commonwealth, Ky., 657 S.W.2d 234, 236 (1983) (pro se pleadings
are not required to meet the standard of those applied to legal
counsel.)
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One morning in September 1989, while Price was engaged
in moving, Arthur Salomon and David R. O’Bryan came to the Park
Avenue address.
Salomon and O’Bryan are trustees for funds
inherited by McGinnis.
Salomon and O’Bryan appeared to be
inspecting the premises, and when they attempted to enter the
garage, Price refused them entry and told them to leave.
On the evening of September 30, 1989, as Price was
loading the last of his personal effects onto a truck, McGinnis
came to Price and advised him that he had never held title to the
property; that his intention to buy the property had been foiled
by the refusal of Salomon and O’Bryan to authorize funds for the
purchase of the property; that he was not, in fact, the landlord
of the property; and that Price was not required to move after
all.
Thereafter, after working for several weeks out of the
Sadieville barn, Price moved his effects back to the Park Avenue
garage.
Price continued to rent the garage until June 1993,
whereupon he shifted his business and horticulture work to Scott
County.
On August 19, 1994, Price filed a lawsuit, stating the
legal grounds for his complaint as follows:
(1) “[t]hat
Defendants, on or about 21 August, 1989, through deception and/or
negligence caused ejection of Plaintiff from his rented premises,
at 312 Park Avenue, Lexington, Kentucky, thereby depriving
Plaintiff of use and enjoyment of said premises established over
some nine years of occupancy;” and (2) “[t]hat Defendants had no
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lawful authority to thus eject and deprive Plaintiff.”
Price’s
complaint sought $4,472.00 in damages.
On November 1, 1999, the trial court entered an order
dismissing Price’s complaint for failure to state a claim upon
which relief can be granted, and because the action was barred by
the statute of limitations.
The order, in relevant part, is as
follows:
The Court finds from reviewing the record
that the complaint fails to state a claim
upon which relief can be granted. There is
no alleged wrong doing on the part of any of
the Defendants, except for McGinnis.
However, the allegations against McGinnis are
without merit, because McGinnis was not the
owner of said property. The Plaintiff left
on his own choosing, because he could have
asked for some proof that McGinnis was the
true owner of said property.
Furthermore, the Court finds that this action
is barred by the applicable statute of
limitations.
A motion to dismiss for failure to state a claim upon
which relief can be granted under Kentucky Rules of Civil
Procedure (CR) 12.02(f) should only be granted when it appears to
a certainty that the claimant is entitled to no relief under any
set of facts which could be proved in support of the claim.
Spencer v. Woods, Ky., 282 S.W.2d 851 (1955); Kevin Tucker &
Associates, Inc. v. Scott & Ritter, Inc., Ky. App. 842 S.W.2d
873, 874 (1992).
In reviewing such a dismissal, this Court must
presume that all the factual allegations in the complaint are
true and must draw any reasonable inference in favor of the
non-movant.
"The issue is not whether a plaintiff will
ultimately prevail but whether the claimant is entitled to offer
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evidence to support the claims."
Scheuer v. Rhodes, 416 U.S.
232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90, 96 (1974);
Feathers v. State Farm Fire & Cas. Co., Ky. App., 667 S.W.2d 693
(1983), overruled on other grounds,
Federal Kemper Ins. Co. v.
Hornback, Ky., 711 S.W.2d 844 (1986); Com. ex rel. Chandler v.
Anthem Ins. Companies, Inc., Ky. App. 8 S.W.3d 48, 51 (1999);
United Parcel Service Co. v. Rickert, Ky., 996 S.W.2d 464, 468
(1999).
Price’s August 19, 1994, complaint failed to include
any factual assertions directly related to the causes of action,
but instead contained only conclusory allegations of wrongdoing.
The complaint, in sum, stated that the defendants through
deception and/or negligence caused ejection of plaintiff from his
rented premises, thereby depriving him of the use and enjoyment
of said premises, and further defendants having no lawful
authority to thus eject and deprive him.
We construe these pro
se pleadings to claim causes of action for negligent
misrepresentation2 and fraud.3
We conclude that the trial court correctly dismissed
the complaint insofar as it alleged negligent misrepresentation.
The elements of a claim of negligent misrepresentation are a
misrepresentation, which concerns a material fact, justifiably
relied on by the plaintiff, and where loss or damages are
proximately caused by such misrepresentation.
37 C.J.S. Fraud §
2
Based upon the pleading “through . . . negligence caused
ejection of Plaintiff from his rented premises[.]”
3
Based upon the pleading “through deception . . . caused
ejection of Plaintiff from his rented premises[.]”
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59 (1997);
(1977).
See also
Restatement (Second) of Torts, § 552
An action for negligent misrepresentation is an action
for fraud.
37 C.J.S. Fraud § 59 (1997).
Price, in his complaint, did not set forth any facts
supporting a claim of negligent misrepresentation.
Further, the
facts as stated in his brief, even if true, are insufficient to
support a claim of negligent misrepresentation as a matter of
law.
As a long-term lessee of the garage property, Price
unjustifiably relied upon statements of the appellees, in that
the truth and veracity of their statements could easily have been
checked by Price merely by consulting his long-term landlord
regarding the situation.
Furthermore, because the losses or
damages incurred by Price could easily have been avoided simply
by checking with his landlord, the losses were not proximately
caused by any misrepresentations made by the appellees, but,
rather by Price’s failure to confirm the appellees’ statements
with his landlord.
The trial court likewise properly dismissed Price’s
fraud allegation for failure to state a claim.
In a Kentucky
action for fraud, the party claiming harm must establish six
elements of fraud by clear and convincing evidence as follows:
a) material representation, b) which is false, c) known to be
false or made recklessly, d) made with inducement to be acted
upon, e) acted in reliance thereon, and, f) causing injury.
United Parcel Service Co. v. Rickert, Ky., 996 S.W.2d 464, 468
(1999); Wahba v. Don Corlett Motors, Inc., Ky. App., 573 S.W.2d
357, 359 (1978).
In the same manner as the negligent
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misrepresentation claim, any fraudulent misrepresentations made
to Price by the appellees did not cause his injuries and losses.
In view of the simplicity with which any false or reckless
statements made by the appellees could have been verified,
Price’s failure to check with his landlord, and not the
misrepresentations, was the cause of his losses.
In addition to the foregoing, as we construe Price’s
complaint, both causes of action are based in fraud.4
In all
averments for fraud, the circumstances constituting fraud must be
stated with particularity in the pleadings.
CR 9.02.
General,
nonspecific allegations of fraud, sham, and the like, are
inadequate to plead a cause of action.
Pendelton Bros. Vending
v. Commonwealth Fin. & Admin. Cabinet, Ky. 758 S.W.2d 24 (1988).
Price’s complaint lacked the requisite statements of
particularity regarding the allegations of fraud and negligent
misrepresentation, and his complaint was accordingly deficient
under this rule; hence the trial court’s dismissal for failure to
state a claim upon which relief could be granted was likewise
proper pursuant to CR 9.02.
For the foregoing reasons the order of the Fayette
Circuit Court dismissing the appellant’s complaint for failure to
state a claim upon which relief could be granted is affirmed.
ALL CONCUR.
4
For this reason we disagree with the trial court that
Price’s action was barred by the statute of limitations. See KRS
413.120(12)(formerly KRS 413.120(11)).
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES DAVID R.
O’BRYAN AND ARTHUR SALOMON:
Stephen D. Price, Pro Se
Georgetown, Kentucky
W. Blaine Early, III
Stites & Harbison
Lexington, Kentucky
BRIEF FOR APPELLEE DICK
TINGLE:
Errol Cooper
Lexington, Kentucky
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