KINCHELOE RADIO SERVICE, INC. v. SUZANNE MORAN
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RENDERED:
AUGUST 17, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000657-MR
and
NO. 2000-CA-002380-MR
(Consolidated)
KINCHELOE RADIO SERVICE, INC.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN P. RYAN, JUDGE
ACTION NO. 97-CI-000835
v.
SUZANNE MORAN
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, COMBS, AND SCHRODER, JUDGES.
BUCKINGHAM, JUDGE: Kincheloe Radio Service, Inc., appeals from an
order of the Jefferson Circuit Court granting Suzanne Moran’s
motion for summary judgment.
We affirm.
Kincheloe Radio was in the business of sales and
repairs of automotive electronic equipment.
Moran was employed
by Kincheloe Radio from July 6, 1979, until December 21, 1995.
Moran was terminated from her employment with Kincheloe Radio on
the latter date due to Kincheloe Radio’s suspicion that she had
embezzled thousands of dollars in cash from the business during
her years of employment.
Moran’s termination came following a
police investigation which included the installation of a
surveillance camera in Moran’s office.
On February 13, 1997, Kincheloe Radio filed a verified
complaint against Moran in the Jefferson Circuit Court alleging
conversion and seeking recoupment of the funds as well as
punitive damages.
On December 3, 1998, the trial court granted
Moran’s motion for summary judgment on the ground that Kincheloe
Radio’s claim for conversion was barred by the one-year statute
of limitation set forth in KRS1 413.140(h) and (i).
KRS
413.140(h) provides that “[a]n action for the recovery of stolen
property, by the owner thereof against any person having the same
in his possession” shall be brought within one year after the
cause of action accrued.
KRS 413.140(i) provides that “[a]n
action for the recovery of damages or the value of stolen
property, against the thief or any accessory” likewise shall be
brought within one year after the cause of action accrued.2
The trial court subsequently amended its order of
December 3, 1998, and vacated the judgment as to its finality.
Kincheloe Radio was granted leave to file a third amended
complaint.
In that complaint, it alleged as grounds for recovery
(1) breach of a contract implied in law, (2) breach of an express
contract implied in fact, (3) fraud, (4) redress under KRS
1
Kentucky Revised Statutes.
2
Since the trial court’s order, these statutory provisions
are now found at KRS 413.140(i) and (j). All references to the
statutes in this opinion will be to the statutes as they existed
during the pendency of this action before the trial court.
-2-
446.070,3 and (5) punitive damages.
These claims are subject to
the five-year statute of limitation set forth in KRS 413.120.
Following the filing of the third amended complaint,
Moran moved the trial court to grant her summary judgment on the
new claims.
By order entered in the trial court on February 3,
2000, the trial court granted the motion and awarded summary
judgment to Moran.
The trial court held that “[t]he case at bar
is simply not based in contract” and thus rejected Kincheloe
Radio’s claims for breach of a contract implied in law and breach
of an express contract due to failure to state a cause of action.
The court likewise rejected Kincheloe Radio’s claims for fraud
and for recovery under KRS 446.070.
In short, the court held
that “it is the judgment of this Court that a civil remedy is not
available to the Plaintiff due to the expiration of the statute
of limitations period as discussed in the Court’s Order of
December 3, 1998.”
When the trial court denied Kincheloe Radio’s
motion to vacate its order, this appeal followed.4
Kincheloe Radio acknowledges that its initial complaint
alleging a claim for conversion of property was barred by the
applicable statutes of limitation, KRS 413.140(h) and (i).
It
has not appealed from the court’s order dismissing that claim.
3
KRS 446.070 provides that “[a] person injured by the
violation of any statute may recover from the offender such
damages as he sustained by reason of the violation, although a
penalty or forfeiture is imposed for such violation.”
4
This case actually involves two appeals which have been
consolidated. The first appeal was taken from an interlocutory
order since Moran’s counterclaim was still pending at the time.
Following dismissal of the counterclaim, Kincheloe Radio filed a
second appeal. At any rate, there is no question that the appeals
are from final orders of the Jefferson Circuit Court.
-3-
Rather, Kincheloe Radio argues that the trial court erred in
granting Moran summary judgment and dismissing its third amended
complaint claims.
“The standard of review on appeal of a summary judgment
is whether the trial court correctly found that there were no
genuine issues as to any material fact and that the moving party
was entitled to judgment as a matter of law.”
Ky.App., 916 S.W.2d 779, 781 (1996).
Scifres v. Kraft,
See also CR5 56.03.
Further, “summary judgments involve no finding of disputed fact
and are reviewed without deference to the conclusions of the
trial court.”
Kreate v. Disabled American Veterans, Ky.App., 33
S.W.3d 176, 178 (2000).
Pursuant to these standards, we conclude
that the trial court properly granted summary judgment in favor
of Moran, although we do so for reasons different from those
stated in the trial court’s order.
The trial court rejected Kincheloe Radio’s claims for
breach of contract apparently for the reason that it failed to
state a valid cause of action.
on this point, however.
We disagree with the trial court
In Peoples Nat. Bank v. Guier, 284 Ky.
702, 145 S.W.2d 1042 (1940), an executor on an estate was accused
of mishandling funds entrusted to his care.
In recognizing a
cause of action in contract against the executor, the court held:
While conversion is essentially a tortious
taking of another’s property, it is certain
that there is also a contract implied in law
to return the property to the rightful owner.
And it is equally certain that the tort may
be waived and an action of assumpsit or its
equivalent may be maintained.
5
Kentucky Rules of Civil Procedure.
-4-
Id. at 1044.
Although we agree with Kincheloe Radio that at least
its contract claims against Moran stated valid causes of action
for which the five-year statute of limitation was otherwise
applicable, we conclude that the one-year statute of limitation
for recovering stolen property as set forth in KRS 413.140(h)
barred its claims.
We base our conclusion on the authority of
Carr v. Texas Eastern Transmission Corp., Ky., 344 S.W.2d 619
(1961).
In Carr, the plaintiff filed a claim for damages
allegedly caused to his cattle due to the actions of Texas
Eastern in constructing its pipeline across the lands of Carr’s
landlords.
Id. at 620.
Carr contended that his claim was based
upon the violation of a written contract and was governed by a
fifteen-year statute of limitation.
Id.
In affirming the trial
court’s dismissal of Carr’s claim due to a one-year statute of
limitation for actions involving injury to livestock by a
railroad or a corporation, the trial court held as follows:
The rule, therefore, is that it is the object
rather than the form of the action which
controls in determining the limitation
period. The form in the case at bar may
derive indirectly from a contract but the
object of the action is to recover for
alleged injuries (speculative and remote
though they may be) to cattle. [Emphasis
original].
Id.
The court in the Carr case relied on the case of
Columbus Mining Co. v. Walker, Ky., 271 S.W.2d 276 (1954).
Id.
The court in Columbus Mining quoted 34 Am. Jur., Limitation of
Actions, Section 103, Page 84, for the following rule:
-5-
“. . . it is generally held that where a
statute limits the time in which an action
for ‘injuries to the person’ may be brought,
the statute is applicable to all actions the
real purpose of which is to recover for an
injury to the person, whether based upon
contract or tort, in preference to a general
statute limiting the time for bringing
actions ex contractu.”
Id. at 277.
The object of Kincheloe Radio’s action was to recover
stolen property although the cause of action was stated as
derived from a contract.
Thus, under the principles set forth in
Carr and Columbus Mining, we hold that the one-year statutes of
limitation for recovering stolen property set forth in KRS
413.140(h) and (i) were applicable to Kincheloe Radio’s claims
rather than the five-year statute of limitation set forth in KRS
413.120. See also Lashlee v. Sumner, 570 F.2d 107 (6th Cir.
1978).6
Finally, Kincheloe Radio argues that the effect of the
Kentucky Supreme Court’s decision in Troxell v. Trammell, Ky.,
730 S.W.2d 525 (1987), was to overrule the court’s previous
holdings in the Carr and Columbus Mining cases.
In Troxell, the
court held that “because statutes of limitation are in derogation
of a presumptively valid claim, a longer period of limitations
should prevail where two statutes are arguably applicable.”
at 528.
We disagree with this analysis.
6
Id.
First, the Troxell
In Lashlee, the Sixth Circuit of the U.S. Court of Appeals
held that a one-year statute of limitation for libel was
applicable even though other distinct causes of action for which
a longer limitation period was applicable were pled. Id. at 109.
The court noted that the “gist of the entire action is the
libel.” Id.
-6-
court made no mention of overruling Carr and Columbus Mining in
its opinion.
Second, we do not believe that “two statutes are
arguably applicable.”
Under the principles of Carr and Columbus
Mining, only the one-year statutes of limitation in KRS
413.140(h) and (i) were applicable.
Therefore, the order and judgment of the Jefferson
Circuit Court is AFFIRMED.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
F. Larkin Fore
Stephen H. Miller
Louis I. Waterman
Joseph C. Spalding
Louisville, Kentucky
Bixler W. Howland
Louisville, Kentucky
-7-
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