CHARLES K. MONIN, JR.; MONIN TRUCKING, INC. TRADE WINDS TRANSIT, INC. APPEALS v. PAUL B. MONIN; CAROLYN BACKHERMS; ROGER LEGGETT; MONIN, INC.; JAMES A. MONIN; JOSEPH E. MONIN; RAPHAEL MONIN; WILLIAM MONIN; LINDA ROBY; CHARLES C. SIMMS, III; MARTHA WHEELER AND PAUL MONIN; CAROLYN BACKHERMS; JAMES A. MONIN; JOSEPH E. MONIN; RAPHAEL MONIN; WILLIAM MONIN; LINDA ROBY; MARTHA WHEELER
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RENDERED:
December 30, 2004; 2:00 p.m.
TO BE PUBLISHED
MODIFIED:
JANUARY 21, 2005; 10:00 a.m.
Commonwealth of Kentucky
Court of Appeals
NO. 2003-CA-000193-MR
AND
NO. 2003-CA-000543-MR
CHARLES K. MONIN, JR.;
MONIN TRUCKING, INC.
TRADE WINDS TRANSIT, INC.
v.
APPELLANTS
APPEALS FROM NELSON CIRCUIT COURT
HONORABLE LARRY D. RAIKES, JUDGE
ACTION NO. 94-CI-00056
PAUL B. MONIN; CAROLYN
BACKHERMS; ROGER LEGGETT;
MONIN, INC.; JAMES A. MONIN;
JOSEPH E. MONIN; RAPHAEL MONIN;
WILLIAM MONIN; LINDA ROBY;
CHARLES C. SIMMS, III; MARTHA
WHEELER
APPELLEES
AND
NO. 2003-CA-000659-MR
PAUL MONIN; CAROLYN
BACKHERMS; JAMES A. MONIN;
JOSEPH E. MONIN; RAPHAEL MONIN;
WILLIAM MONIN; LINDA ROBY;
MARTHA WHEELER
CROSS-APPELLANTS
v.
CROSS-APPEAL FROM NELSON CIRCUIT COURT
HONORABLE LARRY D. RAIKES, JUDGE
ACTION NO. 94-CI-00056
CHARLES K. MONIN, JR.; BARDSTOWN
WAREHOUSING, INC.; LAND ENTERPRISES, INC.;
ROGER LEGGETT; MONIN FIVE, INC.; MONIN
TRUCKING, INC.; DONALD MONIN; MONIN, INC.;
TRADE WINDS TRANSIT, INC.; TRANS-AMERICAN
FREIGHT BROKERS, INC.
CROSS-APPELLEES
OPINION
AFFIRMING IN PART
REVERSING IN PART, VACATING
IN PART, AND REMANDING
** ** ** ** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; BARBER, JUDGE; MILLER, SENIOR JUDGE.1
MILLER, SENIOR JUDGE:
These appeals (Case 2003-CA-000193-MR and
Case 2003-CA-000543-MR) and cross-appeal (Case 2003-CA-000659MR) arise out of Civil Action No. 94-CI-00056 in the Nelson
Circuit Court.
We affirm in part, reverse in part, vacate in
part, and remand.
1
Senior Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110.(5)(b) of the Kentucky Constitution and
KRS 21.580.
2
FACTUAL AND PROCEDURAL BACKGROUND
In 1959, Charles K. Monin, Sr., and his wife Thelma,
and Charles K. Monin, Jr. and his wife Rosalie, purchased
approximately 150 acres of land in Nelson County, Kentucky.
The
land now adjoins the city limits of Bardstown and it is said
constitutes some of the most valuable realty in Nelson County.2
On May 21, 1975, Charles, Sr., and Charles, Jr.,
together with their respective wives, formed Monin, Inc.
Each
of the parties owned a 25% share of the corporation’s capital
stock, of which it appears there were 2,000 shares outstanding.
Through deeds dated January 14, 1975, and March 29,
1982, the farm was deeded to Monin, Inc.
It seems that the farm
was the primary asset of the corporation.
Thelma died in 1984, with Charles, Sr., succeeding to
her interest in the corporation, making him a 50% owner.
1987 Charles, Sr. died.
In
Under his will, his 50% share of Monin,
Inc. stock passed to his ten children in equal shares.3
In
January 1990, Charles, Jr.’s wife Rosalie died, with her
interest passing to him.
2
It appears that from the date of purchase Charles, Jr., and his wife (before
her death) occupied the farm house located on the property. It also appears
that Charles, Jr., has used a portion of the land, at various times, as a
base of operations for certain of his business interests.
3
Charles K. Monin, Jr., Donald Monin, Paul Monin, Carolyn Backherms, James A.
Monin, Joseph E. Monin, Raphael Monin, William Monin, Linda Roby and Martha
Wheeler are the ten children of Charles, Sr. and Thelma.
3
At this point in time, Charles, Jr., owned 55% of the
capital stock in Monin, Inc., and each of his other nine
siblings owned 5% of the stock.
For divers reasons, the siblings fell into
disagreement over the operation and management of the
corporation.
The disagreements, among other things, concerned
Charles, Jr.’s occupancy and use of corporate property.
In February 1994, Charles, Jr., and Don filed the
instant litigation against the remaining siblings.4
Through a
counterclaim and third-party complaint filed November 12, 1996,
the cross-appellants requested, inter alia, the dissolution of
Monin, Inc. and the appointment of a Receiver to accomplish
same.
On August 15, 1997, the trial court entered an order
granting the cross-appellants requests as to the dissolution of
Monin, Inc., and the appointment of a receiver.
On October 24,
1997, the trial court entered an order appointing one, Roger
Leggett as Receiver with the power to wind up the affairs and
liquidate the assets of the company.
The trial court made the
order final and appealable pursuant to CR 54.02.
On appeal to
this Court, the trial court’s dissolution of Monin, Inc., and
appointment of a Receiver were affirmed. (Case No. 1997-CA002871-MR).
4
The record reflects that, for the most part, the alignment of interests has
been Charles, Jr. and Don against the remaining eight siblings.
4
In December 2000, the cross-appellants named as
additional third-party defendants six corporations controlled by
Charles, Jr., to wit:
Monin Trucking, Inc.; Trade Winds
Transit, Inc.; Land Enterprises, Inc.; Trans-American Freight
Brokers, Inc.; Bardstown Warehousing, Inc.; and Monin Five, Inc.
The cross-appellants alleged that Charles, Jr., illegally used
assets of Monin, Inc., for the benefit of himself and the
corporations, including permitting the companies to occupy the
property without paying fair rental value.
The cross-appellants
specifically alleged that Charles had illegally “diverted and
arranged to be diverted corporate funds for the purpose of
satisfying personal debts and obligations.”
The cross-
appellants sought reimbursement of the allegedly diverted assets
on behalf of Receiver Leggett.
Leggett then filed an intervening complaint which, as
amended, sought reimbursement from Charles, Jr., for the rental
value of a residence located on Monin, Inc., property; rental
for Monin, Inc., property used by the six corporations in the
conduct of their business; reimbursement for the use of Monin,
Inc., property for storage in the conduct of the corporations’
business activities; and reimbursement for checks cashed by
Charles on Monin, Inc., checking accounts.
A bench trial was commenced on May 31, 2002, was
resumed on July 12, 2002, and was concluded on August 16, 2002.
5
In the meantime, Leggett filed motions seeking to evict Charles,
Jr., and his businesses from the property or to require them to
pay ongoing rent, requesting a 10% fee for payment as his
compensation as Receiver, and requesting $15,000.00 in attorney
fees for his legal counsel in the litigation.
The trial court rendered judgments dated November 22,
2002, January 13, 2003, February 12, 2003, and March 5, 2003.
By these judgments Charles, Jr., was directed to pay the
Receiver on his claims $11,555.90 in principal and prejudgment
interest for wrongful withdrawals from Monin, Inc., accounts;
$42,048.06 in principal and prejudgment interest for the past
rental value of the farm residence; and $600.00 per month for
ongoing rent of the farm residence.
Under the judgments Monin Trucking, Inc., and Trade
Winds Transit, Inc., were ordered to pay the Receiver
$242,952.53 in principal and prejudgment interest for past
rental of the property for their use of the property for
business activities and were assessed ongoing rental at the rate
of $3,600.00 per month. The judgments granted the Receiver a fee
of 7.5% of the sale proceeds of Monin, Inc., and legal fees in
excess of $15,000.00.
On the cross-appellants’ claims of wrongful
withdrawals from Monin, Inc., checking accounts, Charles, Jr.,
was ordered to pay the Receiver $44,749.03 in principal and
6
prejudgment interest.
The trial court denied claims against
Charles, Jr.’s, other business interests based on lack of
evidence and denied some of the claims of the cross-appellants
as being barred by the statute of limitations.
The trial court
also rejected Charles, Jr.’s, counterclaim for reimbursement or
credit for sums allegedly paid by him on behalf of Monin, Inc.,
but permitted credits for rental actually paid by the companies
for their occupation of the land.
The trial court denied the
cross-appellants’ request for attorney fees.
We address the many issues raised in these appeals as
best we can discern.
DIRECT APPEALS
- CASES 2003-CA-000193-MR & 2003-CA-000543-MR
First, the appellants contend that the trial court
lacked jurisdiction to grant judgment in favor of the crossappellants on the basis that their claims constituted a
shareholder derivative action under KRS 271B.7-400 and that the
cross-appellants failed to comply with the statutory
requirements for bringing such an action.
Under their third-party complaint filed on December
13, 2000, the cross-appellants sought to recover from Charles,
Jr., and/or the corporations under his control funds and assets
which the cross-appellants claimed were improperly and illegally
obtained from Monin, Inc., from February 13, 1987 (the date of
Charles, Sr.’s, death) through October 24, 1997 (the date
7
Leggett was appointed receiver of Monin, Inc.).
The cross-
appellants prosecuted their claims on behalf of Monin, Inc.,
with the understanding that any recovery made on those claims
must be provided to Leggett for division under his mandate to
wind up the affairs of Monin, Inc.
The cross-appellants were
eventually granted a judgment “on behalf of Receiver Leggett”
against Charles, Jr., in the sum of $44,749.93 plus postjudgment interest.
While the appellants, in the caption of their
argument, have framed their argument as a jurisdictional issue,
we construe the issue as one of standing.
As a court of general
jurisdiction, the Nelson Circuit Court has jurisdiction over
this type of case and over the parties.
However, we agree with
the appellants that the cross-appellants do not have standing to
bring a claim seeking to recover misappropriated corporate
assets on behalf of the Receiver.
“[T]he Supreme Court and this Court have consistently
made it clear that a receiver is in no sense a representative of
any party involved in a litigation; a receiver represents the
appointing court, and only the court.”
Rosenbalm v. Commercial
Bank of Middlesboro, Ky. App., 838 S.W.2d 423, 429 (1992)
(citing Rapp Lumber Co. v. Smith, 243 Ky. 317, 48 S.W.2d 17, 19
(1932);
Crump & Field v. First Nat'l Bank of Pikeville, 229 Ky.
526, 17 S.W.2d 436, 439 (1929);
Moren v. Ohio Valley Fire &
8
Marine Ins. Co.'s Receiver, 224 Ky. 643, 6 S.W.2d 1091, 1093
(1928); and
(1977)).
Cerwin v. Taub, Ky. App., 552 S.W.2d 675, 678
We think it reasonably follows that the converse is
true, and that a Receiver may not be represented by any party
involved in litigation but, rather, must act in his own stead
pursuant to the authority of the appointing court.
We are aware
of no authority which would permit the shareholders of a
corporation, during the dissolution of a corporation and while
the corporation is under the purview of a Receiver charged with
winding up its affairs, to bring a lawsuit seeking to recover
assets on the behalf of the Receiver.
In short, that is the
Receiver’s obligation, and to permit shareholders to
independently bring their own lawsuits on behalf of a Receiver
based upon their own judgments as to the winding up of the
affairs of the corporation not only undermines the function of
the Receiver, but may lead to haphazard and duplicative causes
of actions based upon speculative theories by the various
shareholders.
The marshaling of the corporation’s assets is
best left to the Receiver who is charged with such duty.
KRS
271B.14-320.
In conclusion, we hold that the cross-appellants do
not have standing to pursue assets of Monin, Inc. or liabilities
owed to Monin, Inc., on behalf of Receiver Leggett.
We
accordingly reverse that portion of the trial court’s judgment
9
granting the cross-appellants a judgment in the amount of
$44,749.93 against Charles, Jr., on behalf of Receiver Leggett.
Next, the appellants contend that the trial court
erred in its determination that Charles, Jr., had made wrongful
withdrawals from Monin, Inc., accounts between October 27, 1997,
and April 9, 1998.
The trial court determined that Charles,
Jr., had no authority to make these withdrawals following the
appointment of Leggett as Receiver in October 1997.
The
appellants contend that the withdrawals were proper because the
trial court’s order dissolving the corporation and appointing
Leggett as Receiver was stayed by supersedeas bond during the
period of the withdrawals and that the payments were made in
good faith to satisfy obligations of Monin, Inc.
The trial
court addressed this issue as follows:
After dissolution of Monin, Inc. and the
appointment of Leggett as Receiver, Charles
wrote checks totaling $8,436.48 on the Monin
checking account. Charles argues that the
checks were for expenses incurred by the
corporation. However, the vast majority
were paid to his attorney and CPA.
Resolution of this issue is simple. After
Leggett was appointed Receiver on October
24, 1997, Charles had no authority to use
Monin, Inc.’s checking account or any other
of its assets. Leggett is entitled to
judgment against Charles for the amount of
those withdrawals, plus interest thereon at
8% per annum from April 9, 1998 (date of
last check) to date hereof.
10
We begin our discussion by noting that this case was
tried by the circuit court sitting without a jury.
It is before
this Court upon the trial court's findings of fact and
conclusions of law and upon the record made in the trial court.
Accordingly, appellate review of the trial court’s findings of
fact is governed by the rule that such findings shall not be set
aside unless clearly erroneous.
Ky. R. Civ. P. (CR) 52.01;
Largent v. Largent, Ky., 643 S.W.2d 261 (1982).
The trial
court's application of law, is of course, reviewed de novo.
The trial court’s finding that the “vast majority” of
these expenditures were for Charles, Jr.’s, personal attorney
and CPA is supported by substantial evidence and is,
accordingly, not clearly erroneous.
As the funds were not
expended for corporate purposes, the trial court did not err in
its determination that Charles, Jr., was liable for
reimbursement of the expended funds.
As the expenditures in question were for personal use,
we need not decide whether the appellants are correct in their
claim that by posting a supersedeas bond Charles, Jr., retained
the right to expend funds from the corporate accounts.
Even if
so, he did not enjoy the right to use corporate funds for
personal purposes.
The appellants next contend that they are entitled to
a new trial on the issue of rent imputed to Charles, Jr., for
11
his use of the private residence located on Monin, Inc.,
property and to Monin Trucking, Inc., and Trade Winds Transit
for their use of the commercial property located on Monin, Inc.,
property on the basis that Leggett was permitted to testify on
his own behalf as an expert on the fair rental value of the
property.
The appellants allege that Leggett labored under a
conflict of interest in testifying concerning the fair rental
value of the property because he stood to profit personally from
a higher rental value because his Receiver fee would be based,
in part, on the rental value of the property and because he
harbored personal animosity against Charles, Jr.
The appellants
also allege that Leggett did not follow the proper standards for
appraising the fair rental value of the property.
Leggett was appointed Receiver of Monin, Inc., in
October 1997.
Leggett is a General Certified Appraiser who has
been performing real estate appraisals since 1970.
his own appraisal company, L/Appraisals.
Leggett owns
The company performed
over 1000 appraisals, mostly in Nelson County, in 2001.
The
record discloses that Leggett also owns rental property and is
familiar with the rental value of properties in Nelson County.
Kentucky Rule of Evidence (KRE) 702, which governs
testimony by expert witnesses, provides that a witness qualified
as an expert by knowledge, skill, experience, training, or
education may provide opinion testimony if scientific,
12
technical, or specialized knowledge will assist the trier of
fact.
A trial court's determination as to whether a witness is
qualified to give expert testimony under KRE 702 is subject to
an abuse of discretion standard of review.
Farmland Mut. Ins.
Co. v. Johnson, Ky., 36 S.W.3d 368, 378 (2000);
Commonwealth, Ky., 993 S.W.2d 931, 935 (1999);
Fugate v.
Murphy by Murphy
v. Montgomery Elevator Co., Ky. App., 957 S.W.2d 297, 299
(1997).
"An abuse of discretion occurs when a 'trial judge's
decision [is] arbitrary, unreasonable, unfair, or unsupported by
sound legal principles.'"
Farmland Mut. Ins. Co., 36 S.W.3d at
378 (quoting Goodyear Tire and Rubber Co. v. Thompson, Ky., 11
S.W.3d 575, 581 (2000)).
Given his past education and experience in the field
of appraising, Leggett was qualified to express an expert
opinion on the fair rental value of the residential and
commercial property occupied by Charles, Jr., and his companies.
With regard to the allegation that Leggett labored
under a conflict of interest, we note that the fact finder in
the case, the trial judge, appointed Leggett as Receiver for
Monin, Inc., and was fully aware of any potential conflict in
weighing Leggett’s testimony.
The trial judge was well-
positioned to factor this into his determination as to the
rental value of the property.
Further, we note that the trial
court did not accept Leggett’s recommendations of fair rental
13
value in full, but, rather, determined a value less than that
proposed by Leggett as to the residence.
We believe that any
conflict of interest on the part of Leggett, whether real or
imagined, goes to the weight of his testimony and not to its
admissibility.
As such, the appellants are not entitled to a
new trial on the rental issue on the grounds of Leggett’s
alleged conflict of interest.
Next, the appellants contend that the trial court
erred in its award of a fee to the Receiver of 7.5% of the gross
proceeds of the sale of the Monin, Inc., property.
The
appellants allege that the fee was set without benefit of a
hearing; that the Receiver has not provided services to justify
a fee of 7.5%; and that the Receiver’s fee should be based upon
a reasonable hourly rate.
Leggett filed a motion requesting approval of a fee
equal to 10% of the purchase price ultimately derived from the
sale of Monin, Inc., property.
The cross-appellants objected to
Leggett’s request and argued that the 5% fee for personal
representatives as set forth in KRS 395.150, or a fee akin to
the one authorized for trustees under KRS 386.180, would be more
appropriate.
Charles objected in general to an allowance of any fee
for Leggett.
This blanket objection is, of course, not
sustainable.
KRS 271B.14-320 provides that “[the] court from
14
time to time during the receivership . . . may order
compensation paid and expense disbursements or reimbursements
made to the receiver . . . from the assets of the corporation or
proceeds from the sale of the assets.”
Moreover, the general
proposition of law is to the effect that ”[i]n the absence of a
statute or fixed rule of practice, the amount of a receiver’s
compensation is within the sound discretion of the court;
however, exercise of that discretion is not unbridled and the
matter is discretionary only in the sense that there are no
fixed rules to determine the proper allowance, and not in the
sense that the courts are at liberty to give anything more than
a fair and reasonable compensation or less than such
compensation.”
75 C.J.S. Receivers § 477 (2002).
Further,
“[a]n order allowing compensation to a receiver should be made
only after notice and a hearing, at which the parties interested
have an opportunity of contesting the claim[.]”
75 C.J.S.
Receivers § 478 (2002).
Through a pretrial order, the trial court ordered that
the issue of the Receiver’s fee be tried with all other issues
joined by the pleadings.
However, the parties do not cite to
the record of any such hearing, and it is unclear from the
record whether a bona fide hearing on the Receiver’s fee ensued.
As noted previously, the trial court fixed the Receiver’s fee at
7.5%.
We view this as an arbitrary fixing akin to a real estate
15
commission.
Certainly Leggett should not be compensated upon a
commission basis, especially where the principal asset of the
corporation is real property; rather, he should be reasonably
compensated for his services based, among other factors, upon
his time, effort, skill, and expertise in marshaling,
protecting, saving, and distributing proceeds upon termination
of the receivership.
See generally, Annotation, Measure and
Amount of Compensation of Receiver Appointed by Federal Court, 6
A.L.R. Fed. 817.
We know of no authority, statutory or
otherwise, for fixing a receiver’s fee upon a commission basis.
In view of the record before us, we are constrained to
vacate the award of a 7.5% Receiver’s fee and remand for
reconsideration, applying the aforementioned principals.
The appellants’ next argument is that the Receiver
should be removed for failure to carry out his duties in a
timely manner and to protect the assets of Monin, Inc.
The appellants provide minimal support for this
argument.
In total, the appellants’ argument is as follows:
“Given the foregoing evidence of the Receiver’s admitted lack of
impartiality, his failure to carry out his responsibilities, and
inability to do his job as mandated by court order, and his
excessive request for compensation, the Receiver should be
dismissed by the court and replaced without compensation.”
16
We find no evidence supporting these allegations, nor
have we been directed to any.
In fact, it does not appear the
circuit court ruled on this issue.
CR 52.04 requires a motion
for additional findings of fact when the trial court has failed
to make findings on essential issues.
Failure to bring such an
omission to the attention of the trial court by means of a
written request will be fatal to an appeal.
Ky., 634 S.W.2d 423 (1982).
Cherry v. Cherry.
The thread which runs through CR 52
is that a trial court must render findings of fact based on the
evidence, but no claim will be heard on appeal unless the trial
court has made or been requested to make unambiguous findings on
all essential issues.
471 (2004).
Vinson v. Sorrell, Ky., 136 S.W.3d 465,
Perforce, we are unable to address this issue.
Next, the appellants argue that the attorney fees
awarded to counsel for the Receiver should be vacated subject to
a hearing on the reasonableness of the fees.
The appellants
also allege that the trial court erred by sealing the itemized
listing of the fees on the basis of attorney-client privilege.
In the course of this litigation, the trial court
appointed Charles Simms, III, to represent Leggett through an
order which set various conditions and limitations on that
representation.
At the conclusion of the proceedings, Simms tendered a
request to the trial court of fees totaling $15,225.00.
17
Simms
submitted an itemized list of services rendered from June 18,
2001, through September 5, 2002.
All charges were based upon a
$100.00 per hour cap as imposed by the trial court.
The trial
court further took “judicial notice of the activities involving
Simms’ representation of Leggett, and the fact that those
activities support Simms’ claim that he had expended 150.25
hours on behalf of Leggett.”
KRS 271B.14-320(5) provides that “[t]he court from
time to time during the receivership or custodianship may order
compensation paid and expense disbursements or reimbursements
made to the receiver or custodian and his counsel from the
assets of the corporation or proceeds from the sale of assets.”
The $100.00 per hour cap set by the trial court is not
unreasonable.
Moreover, the appellants have not identified any
factors to refute the trial court’s determination that the
quantity of hours is reasonable.
“A receiver, being entitled to
the assistance of counsel in proper cases, will be allowed
reasonable and proper fees in this behalf[.]”
Receivers § 466 (2002).
75 C.J.S.
The trial court “fixes the
compensation, if any, to be allowed for the services of an
attorney for a receiver, . . . [and] is vested with discretion
in the matter.”
75 C.J.S. Receivers § 468 (2002).
In sum we
hold that the trial court did not abuse its discretion in
18
setting a fee for Mr. Simms of $15,225.00 based upon 150.25
hours at $100.00 per hour.
The trial court did not address the issue of the
sealing of the attorney fees invoice, a fact which prevents our
review of the issue.
However, we note that the itemization of a
legal services invoice would not appear to fall within the
attorney-client privilege as such a listing is not a
communication by Leggett to Simms, nor is such a listing work
product as it does not involve the thought processes of Simms in
evaluating and litigating Leggett’s claims.
See KRE 503.
The appellants’ last argument is that the trial court
erroneously denied Charles, Jr., an offset, reimbursement, or
credit for amounts he spent out of pocket on behalf of Monin,
Inc.
The appellants allege that $7,000.00 in rental
payments made by Monin Trucking, Inc., was not properly credited
in the final judgment calculation.
On page 10 of the trial
court’s November 22, 2002, order, the trial court acknowledged
the validity of the payments and stated “Charles, Monin
Trucking, Inc., and Trade Winds Transit, Inc. should be given
credit for those payments.”
It is unclear from the later orders
whether these offsets were properly credited to the appellants.
We accordingly remand for clarification by the trial court.
If
the appellants are correct and the offsets were not included in
19
the final judgment calculation, a $7,000.00 offset should be
credited to the appellants.
The appellants also contend that they are entitled to
an offset of $4,960.56 consisting of a payment of $438.78 for
insurance premiums paid on the farmhouse; $2,941.53 for property
taxes paid on the farm; and $1,580.25 for City of
Bardstown/Industrial District taxes paid.
The appellants allege
that the expenses were paid by Charles, Jr., out of his own
pocket, and that he is accordingly entitled to an offsetting
credit in the judgment calculation.
While it appears that the
appellants raised these offsets during the trial proceedings, it
does not appear that the appellants’ entitlement to the credits
was addressed in either the trial court’s November 22, 2002,
order or in any of the three subsequent orders, nor does it
appear the appellants brought the omission to the attention of
the trial court.
As the appellants did not make the proper request
for findings concerning these offsets subsequent to the trial
court’s November 11, 2002, order, the issue is not properly
preserved for our review.
S.W.3d at 471; CR 52.04.
CR 52.04;
Vinson v. Sorrell, 136
Accordingly we are unable to address
same.
CROSS-APPEAL – CASE 2003-CA-000659-MR
20
In their cross-appeal, the cross-appellants contend
that, for various reasons, the trial court erred in its ruling
that a portion of their claims was barred by the statute of
limitations.
The trial court allowed only those claims which
existed within the five years immediately prior to December 13,
2000, the date the cross-appellants first raised their claims
seeking reimbursement for amounts allegedly wrongfully withdrawn
from Monin, Inc. by Charles, Jr.
Based upon our disposition of the cross-appellants
claims in the direct appeal wherein we held that the crossappellants did not have standing to prosecute a claim on behalf
of Receiver Leggett, all issues raised by the cross-appellants
in their cross-appeal are moot.
Hence, we need not address
those issues on the merits.
CONCLUSION
In conclusion, we affirm as to all issues raised in
these appeals with the exception that we reverse as to the money
judgment in the amount of $44,749.03 awarded to the crossappellants on behalf of the Receiver.
We remand as to the issue of whether the appellants
were given proper credit for $7,000.00 the trial court
determined they were entitled to as an offset against the
judgment for rental.
The trial court shall reconsider this
issue.
21
We further vacate the award of a 7.5% Receiver’s fee
and remand for reconsideration of the compensation to be awarded
in light of the authorities cited herein.
Finally, let us note that litigation among these
parties has been expensive and time consuming for all concerned.
Having ordered the dissolution of Monin, Inc., it seems to us
that the trial court, through its Receiver, should hastily
conclude the marshalling of the assets of Monin, Inc., and the
winding up of the affairs of the corporation.
We note that in
its final distribution of the assets of the corporation, the
trial court has broad equitable powers.
Hopefully these powers
will be used to bring about a quick and proper determination of
this matter.
For the foregoing reasons the judgments of the Nelson
Circuit Court are affirmed in part, reversed in part, vacated in
part, and remanded for additional proceedings consistent with
this opinion.
ALL CONCUR.
BRIEF FOR
APPELLEES
JR; TRADE
AND MONIN
APPELLANTS/CROSSCHARLES K. MONIN,
WINDS TRANSIT, INC.;
TRUCKING, INC.:
Marshall V. Gaither
PeWee Valley, Kentucky
BRIEF FOR APPELLEES/CROSS
APPELLANTS PAUL MONIN; CAROLYN
BACKHERMS; JAMES A. MONIN;
JOSEPH E. MONIN; RAPHAEL
MONIN; WILLIAM MONIN; LINDA
ROBY; MARTHA WHEELER:
John S. Kelley, Jr.
Bardstown, Kentucky
22
BRIEF FOR APPELLEE/CROSSAPPELLEE ROGER LEGGETT:
James H. Abell
Bardstown, Kentucky
23
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