CONVENIENT INDUSTRIES OF AMERICA, INC. and CONNA CORPORATION v. LAWRENCE ROSEN, SUSAN ROSEN, WILLIAM J. LEWIN, PATRICIA J. LEWIN, STACEY A. ROSEN, JOHN G. SCHOUTEN, CAROLINE W. SCHOUTEN, DENNIS LAKNER, JEAN MARC SNYERS, and MARIE MAGDELENA SNYERS-LEMAIRE
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RENDERED: August 15, 2003; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NOS. 2001-CA-000056-MR, 2001-CA-000097-MR,
2001-CA-000099-MR and 2001-CA-000131-MR
CONVENIENT INDUSTRIES OF AMERICA,
INC. and CONNA CORPORATION
v.
APPELLANTS/CROSS-APPELLEES
APPEALS AND CROSS-APPEALS FROM JEFFERSON CIRCUIT COURT
HONORABLE THOMAS B. WINE, JUDGE
ACTION NO. 90-CI-006010
LAWRENCE ROSEN, SUSAN ROSEN,
WILLIAM J. LEWIN, PATRICIA J. LEWIN,
STACEY A. ROSEN, JOHN G. SCHOUTEN,
CAROLINE W. SCHOUTEN, DENNIS LAKNER,
JEAN MARC SNYERS, and
MARIE MAGDELENA SNYERS-LEMAIRE
APPELLEES/CROSS-APPELLANTS
OPINION
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING ON APPEAL
AND
AFFIRMING ON CROSS-APPEAL
** ** ** ** **
BEFORE:
BARBER, COMBS, and KNOPF, Judges.
COMBS, JUDGE.
Convenient Industries of America, Inc.,
(Convenient) and Conna Corporation appeal from the final
judgment of the Jefferson Circuit Court awarding the appellees,
Lawrence Rosen, et al. (Rosen), the sum of $168,543.80.
This is
the third appeal involving these same parties concerning
litigation as to the terms of a 1966 lease agreement between
Convenient and Rosen’s predecessor-in-title, Levi Tyler.
The
sole issue for our review is whether the trial court’s most
recent judgment is consistent with the previous decisions and
directives of this Court.
Convenient argues that the trial court erred in
awarding pre-judgment interest; in awarding post-judgment
interest from December 21, 1994; and in granting Rosen’s motion
for costs.
Rosen contends that this Court’s 1999 opinion is
erroneous and contrary to our first opinion rendered in 1997.
He argues that the trial court erred in following the 1999
opinion and in denying him rent which he alleges is owed by
Convenient for the period 1975 to 1983.
We conclude that the
trial court’s judgment correctly complies with the directives
contained in this Court’s two previous opinions with one
exception -- the date as to which Rosen is entitled to postjudgment interest.
Thus, we reverse only that portion of the
judgment which conflicts with our earlier mandate as to setting
post-judgment interest.
In all other respects, we affirm.
The facts and the procedural history of this case have
been recited twice before.1
We will attempt to avoid unnecessary
1
See, Rosen v. Convenient Industries of American, Inc., No. 95CA-000354-MR, opinion rendered January 10, 1997, and Convenient
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repetition and will recount here that portion of the factual and
procedural background relevant to a resolution of this appeal.
In 1966, Convenient leased property from Tyler for a
food mart.
The lease provided for the payment of rent
calculated by adding a percentage of the store’s gross sales to
a fixed amount.
the property.
In 1967, Convenient installed gasoline pumps on
Tyler and Convenient agreed to factor in only the
commission that Convenient received on the sale of the gasoline
rather than using gross gasoline sales in figuring the gross
store sales portion of the rental equation.
In 1983, Rosen and a group of investors purchased the
property -- including the lease with Convenient.
Rosen was
unaware of the agreement and practice to exclude the gross
gasoline sales from the rent calculations.
It was not until
1989 that Rosen discovered that gasoline commissions (instead of
gross sales) were utilized in the formula according to which
Convenient paid its rent.
In 1990, Rosen filed a lawsuit
seeking an award for rent calculated pursuant to the precise,
written terms of the lease agreement.
At the conclusion of the
trial, the lower court directed a verdict for Convenient,
finding that the parties to the 1966 lease had not anticipated
gasoline sales to be included in “gross sales” for the purpose
Industries of America, Inc. v. Rosen, No. 1998-CA-001229-MR, opinion
rendered July 16, 1999, motion for discretionary review denied by the
Supreme Court of Kentucky on August 16, 2000.
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of computing the amount of rent because gasoline pumps were not
installed until a year after the lease was negotiated.
In the first appeal of this matter, this Court held:
(1) that the 1966 lease was not ambiguous; (2) that the term
“gross sales” included the sale of gasoline; and (3) that
although Rosen’s predecessor had waived the right to have rent
calculated by agreeing to the use of commissions instead of the
gross sales of gasoline, Rosen had “a right to assert a claim
for percentage rent based upon the unmodified and unambiguous
1966 lease.”
The matter was remanded with directions that the
trial court enter a summary judgment in favor of Rosen on the
sole issue of the proper interpretation of the lease.
This
Court did not determine the amount of Rosen’s damages, nor did
it address the time period for which he was entitled to claim
damages.
On April 20, 1998, the trial court awarded Rosen
damages totalling $102,745.
This sum included back rent
beginning in 1975, pre-judgment interest compounded annually,
post-judgment interest from December 4, 1994, and costs.
In the
second appeal, Convenient argued that the trial court erred in
awarding back rent before Rosen’s acquisition date of 1983 and
in awarding post-judgment interest before a final judgment in
Rosen’s favor had been entered.
Convenient prevailed on both
issues.
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In the second opinion rendered in this matter, the
Court held as follows:
In essence, the Court [in its 1997 opinion]
concluded that Levi Tyler’s waiver was not
binding upon Rosen. As Levi Tyler waived
entitlement to increased rental payments, we
cannot see how Rosen could possibly be
entitled to back rental payments before
1983. Hence, we believe implicit in the
Court’s opinion is that Rosen may collect
back rent commencing only in 1983.
Addressing the issue of post-judgment
interest, we note that an “arrearage” is a
liquidated sum. As such, we are of the
opinion that prejudgment interest is
mandated. [Citation omitted.] We are
further of the opinion that post-judgment
interest, under KRS2 360.040, shall not
commence to run until entry of a new
judgment conforming to this opinion.
[Emphasis added.]
In the judgment currently before us, the trial court
awarded Rosen the sum of $168,543.80, including:
$47,882.87 in
back rent for the period from 1983 until 1991, pre-judgment
interest (8%) compounded annually, post-judgment interest (12%)
from December 1994, and costs.
The appeals and cross-appeals
that followed have been consolidated for our review.
We first address Rosen’s cross-appeal.
He argues that
the trial court erred in refusing to make its award for back
rent retroactive to 1975 -– the date from which he alleges that
he is entitled to pursue back rent under the statute of
2
Kentucky Revised Statutes.
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limitations applicable to contract disputes.
The thrust of
Rosen’s argument is that the 1999 opinion is legally flawed and
inconsistent with the 1997 opinion.
We do not find any
inconsistency between the two previous opinions of this Court.
The 1997 opinion established Rosen’s right to rent
based on the gross amount of gasoline sales rather than on the
lower amount of commissions.
However, we did not hold that
Rosen was entitled to collect rent accruing during his
predecessor’s ownership and prior to his acquisition of the
property in 1983.
This Court agreed that while Tyler had waived
any right to rent calculated on the gross sales of gasoline, his
waiver did not bind Rosen, who was entitled to enforce the terms
of the written lease.
The 1999 opinion addressed the issue of when Rosen
became entitled to enforce the contract.
It concluded that
Rosen was not entitled to the rent waived by his predecessor
prior to 1983 and that Rosen’s entitlement to the rent commenced
only in 1983, the time at which he acquired an interest in the
property and the commercial agreement.
It also concluded that
Rosen was not entitled to rent waived by his predecessor prior
to 1983.
The two opinions deal with two separate issues and are
wholly consistent with one another.
The general rule in Kentucky is that a decision
rendered by an appellate court on a particular issue between the
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same parties in the same case -- whether “right or wrong” -- is
binding on the parties and the trial court.
Martin v. Frasure,
Ky., 352 S.W.2d 817, 818 (1962); see also, William v.
Commonwealth, Ky., 767 S.W.2d 323 (1989).
Relief from this
Court’s 1999 opinion (that Rosen could not be awarded any amount
for rents owed prior to 1983) could only have been obtained by
further review in the Kentucky Supreme Court, which denied
Rosen’s motion for discretionary review.
See, note 1, infra.
Since the trial court’s judgment limiting its award for rent
conforms to the previous rulings of this Court, it cannot be
disturbed.
In its appeal, Convenient is correct in arguing that
the trial court’s judgment does not comply with this Court’s
mandate on the issue of the commencement of post-judgment
interest.
As stated above, this Court determined that post-
judgment interest should not commence to run until entry of a
judgment in conformity with this Court’s opinion:
“... post
judgment interest, under KRS 360.040, shall not commence to run
until entry of a new judgment conforming to this opinion.”
(Emphasis added.)
Opinion of July 16, 1999.
Nevertheless, the
trial court awarded post-judgment interest from December 1994.
The trial court is bound by this Court’s 1999 decision and may
award post-judgment interest only after a judgment in favor of
Rosen consistent with the 1999 opinion has been entered.
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So
far, there has been no judgment entered which wholly complies
with the directives of this Court.
Rosen is not entitled to
post-judgment interest until entry of a judgment conforming to
the directives of the 1999 opinion of this Court.
Convenient also argues that the trial court erred in
awarding pre-judgment interest.
It reasons that an award of
pre-judgment interest is appropriate when the damages are
liquidated; that is, “made certain or fixed by agreement . . .
or by operation of law.”
812 S.W.2d 136 (1991).
Nucor Corp. v. General Electric Co.,
Convenient contends that Rosen’s claim
for damages “has been anything but certain or fixed.”
In Kentucky, pre-judgment interest may be awarded
“where justified by the facts of a particular case.”
State Farm
Mutual Auto Insurance Co. v. Reeder, Ky., 763 S.W.2d 116, 119
(1988).
Regardless of whether the damages are liquidated, the
trial court has discretion in awarding pre-judgment interest.
Nucor, supra.
This issue was addressed and decided in this
Court’s previous opinion.
5.
See Opinion of July 16, 1999, at p.
The trial court was directed to include pre-judgment
interest in its award.
Therefore, we affirm on this argument.
Finally, Convenient argues that the trial court erred
in awarding Rosen his costs.
Stating that neither party “has
been entirely successful,” Convenient contends that “it is
equitable and appropriate that each party” bear its own costs.
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Again, we find no error.
While it is true that Convenient was
successful in the second appeal in limiting Rosen’s damages, it
cannot seriously be argued that Rosen was not the “prevailing
party” in the over-all context of this protracted litigation.
See, Lewis v. Grange Mutual Casualty Company, Ky., 11 S.W.3d 591
(2000).
We find no abuse of the broad discretion of the trial
court in awarding costs.
See, CR3 54.04(1); KRS 453.040(1).
The judgment of the Jefferson Circuit Court is
reversed only with respect to the time of the commencement of
post-judgment interest, and the case is remanded for entry of a
judgment consistent with this Court’s opinions.
In all other
respects, the judgment is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANTS/CROSSAPPELLEES:
BRIEF FOR APPELLEES/CROSSAPPELLANTS:
Robert Y. Gwin
Ann E. Georgehead
Louisville, Kentucky
Dan Siebert
Louisville, Kentucky
3
Kentucky Rules of Civil Procedure.
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