JEAN ACTON v. WILLIAM GEARY
Annotate this Case
Download PDF
RENDERED: MARCH 10, 2006; 2:00
NOT TO BE PUBLISHED
P.M.
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000402-MR
JEAN ACTON
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
ACTION NOS. 03-CI-009362 & 03-CI-010598
v.
WILLIAM GEARY
APPELLEE
OPINION
AFFIRMING IN PART AND
REVERSING AND REMANDING IN PART
** ** ** ** **
BEFORE:
BARBER, HENRY, AND KNOPF, JUDGES.
BARBER, JUDGE:
Appellant, Jean Acton (Acton), filed suit
against Appellee, William Geary (Geary), claiming breach of
contract and warranty on four separate roofing jobs performed by
Geary.
Geary completed roofing work between 1995 and 1998 on
four homes which were Acton’s rental properties.
On April 10, 1995, the parties signed a written
contract for repair work to be performed on the roof of a home
located at 996 Goss Avenue for a cost of $2,000.00.
On March
10, 1996, the parties signed a written contract for work to be
performed to the roof of a home located at 994 Goss Avenue for a
cost of $2,500.00.
On April 14, 1998, the parties signed a
written contract for repair work to be performed at 1131
Reutlinger Avenue for a cost of $800.00.
The other written
contract signed by the parties was undated and was for roof
repair work to be performed at 1012 Ash Street for $775.00.
Each of these contracts provide a labor warranty of five (5)
years and a material warranty of twenty (20) years to Acton.
Also, Geary handwrote on each contract that Geary’s Home
Improvement1 would provide liability and workers’ compensation
insurance on each job.
Acton claimed she had serious problems
with each of the four roofing jobs performed by Geary.
Acton first filed suit against Geary on June 13, 2002,
in Jefferson District Court for damages incurred at 1131
Reutlinger Avenue.2
Acton alleged that the roof leaked due to
inferior materials used and poor workmanship.
Acton claimed she
was forced to replace a section of the roof on the back of the
house and incurred damage to the interior of the home from the
leak.
1
Geary’s Home Improvement was not incorporated at the time the work was
performed. In the original actions, Acton did include Geary’s Home
Improvement, but the appeal is limited to William Geary, individually.
2
Acton claimed damages of $1,890.00 exclusive of legal costs and fees
incurred.
-2-
Acton’s complaint was amended on June 10, 2003 to add
damages allegedly incurred to the home located at 996 Goss
Avenue.3
Acton claimed the roof at 996 Goss Avenue suffered from
a leak caused by Geary’s use of inferior materials and poor
workmanship.
The parties reached a settlement related to this
home in January 2002.
However, what the settlement actually
covered is one of the issues raised in this appeal.
Also
contained in the amended complaint was a claim for other damages
at other properties, but it failed to specifically list the
properties.4
Acton filed a more definitive statement related to
this claim July 11, 2003 which added the 1012 Ash Street
property to her claim.
Acton alleged Geary placed tar into a
box gutter that resulted in the front interior of the home being
flooded.5
On November 10, 2003, Acton filed a motion that the
action be transferred to Jefferson Circuit Court.
The court
sustained said motion November 14, 2003.6
Prior to the above transfer, Acton had filed a second
suit against Geary in Jefferson Circuit Court October 27, 2003
3
Acton claimed damages of $1,650.00 plus the cost of emergency temporary
repairs, cleaning and painting, exclusive of legal costs and fees incurred.
4
Geary filed a motion for a more definitive statement related to these two
additional claims June 16, 2003 which was granted by the court June 20, 2003.
5
Acton claimed damages of $1,227.39 exclusive of legal costs and fees
incurred.
6
The matter was transferred to circuit court and was assigned the case
number, 03-CI-10598.
-3-
claiming damages incurred to her 994 Goss Avenue property.7
Acton claimed Geary failed to install the roof in a workmanlike
manner in compliance with competent roofing practices and the
parties’ written contract.8
Also included in this suit was a
claim for punitive damages based upon fraud related to Geary’s
failure to maintain liability insurance during the four roofing
jobs.9
On January 28, 2004, Acton filed a motion to consolidate
this suit with her other pending action (03-CI-10598).
The
court ordered the consolidation of the two matters February 2,
2004.
A bench trial was held September 24, 2004.
On
September 29, 2004,10 the trial court entered an order granting
Geary a directed verdict on Acton’s punitive damage claim.11
Acton then filed a motion requesting the trial court to alter,
amend or vacate its order granting the directed verdict to
Geary.
The trial court issued its findings of fact, conclusions
of law, and judgment on January 27, 2005.
denied Acton’s punitive damage claim.
7
The trial court again
The only property the
This matter was assigned the case number 03-CI-9362.
8
Acton claimed damages of $2,000.00 plus consequential damages exclusive of
legal costs and fees incurred.
9
Acton alleges she was induced to enter into the contracts based upon his
written representations that he was fully insured and that she incurred
damages that would have been covered by liability insurance had it existed.
10
The order was entered by the clerk on September 29, 2004.
11
Trial court had made its ruling orally at the conclusion of the September
24, 2004 bench trial.
-4-
trial court awarded damages to Acton for was 1131 Reutlinger
Avenue.12
All of Acton’s claims on the three other properties
were denied.
Acton then appealed to our court.13
Acton makes ten arguments in her appeal as
follows:
(1) The trial court was clearly erroneous in
finding that a partial settlement of some of the
damages constituted settlement as to all damages
to 996 Goss Avenue.
(2) The trial court was clearly erroneous in
finding that Acton did not meet her burden of
proof as to damages to 994 Goss Avenue.
(3) The trial court was clearly erroneous in
finding that the claim for damages to 1012 Ash
Street was time barred.
(4) The trial court was clearly erroneous and
abused its discretion in finding that Geary had
liability and workers’ compensation insurance,
hence, not fraudulent when no proof of insurance
was produced.
(5) Geary perpetrated fraud on Acton when he
intentionally performed roofing jobs in a
substandard and unworkmanlike manner and not in
conformity with the written contracts.
(6) It was fraudulent for Geary to represent he
had returned to the properties and made repairs
to correct his original roofing work that was
performed in an unworkmanlike manner and not, in
fact, make the promised repairs or any repairs.14
12
The trial court awarded $1,812.97 plus costs expended.
13
Acton’s appeal is limited to the claims on the three remaining properties.
Geary did not appeal the damage award on 1131 Reutlinger Avenue.
14
No text or additional argument was offered by Acton below this heading.
-5-
(7) Acton was entitled to recover for
consequential damages that occurred when Geary
did not make any of the repairs he represented
that he made to correct his original work that
was performed in an unworkmanlike manner.15
(8) The trial court was clearly erroneous in its
refusal to find that Geary was grossly negligent
and violated the building and housing code.16
(9) It was clearly erroneous and an abuse of
discretion for the trial court to refuse to award
Acton attorney fees where there was evidence that
Geary violated the building and housing code.
(10) The trial court erred and abused its
discretion in refusing to award punitive damages
against Geary.
A trial court decision will not be reversed unless it
has abused its discretion or renders a decision which is clearly
erroneous.
A trial court’s decision cannot be clearly erroneous
if it is supported by substantial evidence.
Substantial
evidence has been conclusively defined by Kentucky courts as
that which, when taken alone or in light of all the evidence,
has sufficient probative value to induce conviction in the mind
of a reasonable person.
Secretary, Labor Cabinet v. Boston
Gear, Inc., a Div. of IMO Industries, Inc., 25 S.W.3d 130, 134
(Ky. 2000).
Additionally, the test for abuse of discretion is
whether the trial judge’s decision was arbitrary, unreasonable,
unfair, or unsupported by sound legal principles.
Commonwealth
15
The body of the argument was another fraud claim related to punitive
damages.
16
No text or additional argument is offered by Acton below this heading.
-6-
v. English, 993 S.W.2d 941, 945 (Ky. 1999).
We will now address
each of Acton’s arguments.
Acton first argues that the trial court was clearly
erroneous in finding that a partial settlement of some of the
damages constituted a full settlement to all damages related to
996 Goss Avenue.
The trial court found that the parties settled
all damages to the property for $1,000 relying upon a taped
conversation of the parties17 and the memo of the check tendered
by Geary.18
The trial court concluded that Acton’s “acceptance
and cashing of the check, along with her failure to repay the
$1,000 pursuant to KRS 355.3-311(3)(b), clearly fits within the
Morgan19 test of accord and satisfaction.”20
The Morgan test the trial court referred to is derived
from KRS 355.3-311, which states in pertinent part:
(1) If a person against whom a claim is
asserted proves that:
(a) That person in good faith tendered
an instrument to the claimant as full
satisfaction of the claim;
(b) The amount of the claim was
unliquidated or subject to a bona fide
dispute; and
17
Acton recorded a telephone conversation related to this property she had
with Geary on January 12, 2002.
18
On January 18, 2002, Geary sent a check for $1,000 and indicated in the
memo portion “Refund on job.”
19
The trial court was referring to Morgan v. Crawford, 206 S.W.3d 490
(Ky.App. 2003).
20
Taken from the January 27, 2005 findings of fact, conclusion of law, and
judgment.
-7-
(c) The claimant obtained payment of
the instrument, the following subsections
apply.
(2) Unless subjection (3) of this section
applies, the claim is discharged if the
person against whom the claim is asserted
proves that the instrument or an
accompanying written communication contained
a conspicuous statement to the effect that
the instrument was tendered as full
satisfaction of the claim.
(3) Subject to subjection (4) of this
section, a claim is not discharged under
subsection (2) of this section if either of
the following applies:
. . . .
(b) The claimant, whether or not an
organization, proves that within ninety (90)
days after payment of the instrument, the
claimant tendered repayment of the amount of
the instrument to the person against whom
the claim is asserted.
(4) A claim is discharged if the person
against whom the claim is asserted proves
that within a reasonable time before
collection of the instrument was initiated,
the claimant . . . knew that the instrument
was tendered in full satisfaction of the
claim.
Following the parties’ January 12, 2002 telephone
conversation,21 Geary delivered check number 4488 in the amount
of $1,000.00 to Acton on January 12, 2002.22
21
In the memo section
A transcript of the telephone conversation was submitted into evidence as
Acton’s Exhibit 19.
22
The check was Geary’s Exhibit 4 in the bench trial.
-8-
of the check, Geary wrote “Refund on job.”23
check the same day.
Acton cashed the
Acton sent a letter to Geary dated January
18, 200224 which stated as follows:
This letter confirms that the $1,000 check
you issued today constitutes payment of
$650.00 for repairs to the front section of
the top portion of the roof at [996 Goss
Avenue]. The remaining $350.00 is to cover
our estimated cost of repairing the interior
damages resulting from leaking.
At the bench trial, each party testified regarding
this payment.
Acton stated that the $1,000.00 represented
settlement for repairs to the top portion of the front section
of the roof in the amount of $650.00 and repairs to the upper
interior only from the roof leak in the amount of $350.00.25
She
further testified that she offered to give Geary a receipt
reflecting the same, but he did not want one, so she prepared
the January 18, 2002 letter as confirmation of their partial
settlement.
Geary stated that it was his understanding the
$1,000.00 paid by him settled all issues related to 996 Goss
Avenue.
Kentucky Rule of Civil Procedure 52.01 states in
pertinent part, for actions tried without a jury, “[D]ue regard
23
Compare with Morgan, in which the check offered stated “Payment in full1150 Powell Taylor Driveway” on both the memo line on the front of the check
and above the endorsement line on the back of the check.
24
The letter was Acton’s Exhibit 20 in the bench trial.
25
During Acton’s testimony, the trial court also noted the ambiguity
contained in the January 18, 2002 letter related to the interior damage.
-9-
shall be given to the opportunity of the trial court to judge
the credibility of the witnesses.”
In circumstances of
conflicting testimony, a reviewing court may not and will not
disturb the findings of the trial court so long as it is
supported by substantial evidence.
Bentley v. Bentley, 500
S.W.2d 411, 412 (Ky.App. 1973), (citing Sharp v. Sharp, 491
S.W.2d 639 (Ky. 1973) and Adams v. Adams, 412 S.W.2d 857 (Ky.
1967)).
Each party provided the trial judge with substantial
explanation as to their intention with the $1,000.00 check.
The
trial court relied upon Geary’s testimony and the January 12,
2002 telephone conversation in deriving the meaning of the
check.
As such, the trial court concluded the $1,000.00
constituted settlement of all claims related to 996 Goss Avenue
and Acton’s cashing of the $1,000.00 check satisfied the Morgan
test for accord and satisfaction.
The trial court could have relied on Acton’s testimony
and reached a different result.
The fact that the trial court
chose not to does not provide evidence of error warranting a
reversal on appeal.
Because the trial court’s finding related
to the $1,000.00 check was supported by substantial evidence,
the holding fails to satisfy the clearly erroneous standard and
must be affirmed.
-10-
Acton next argues that the trial court was clearly
erroneous in finding that she did not meet her burden of proof
as to damages to 994 Goss Avenue.
The trial court held as
follows:
On March 10, 1996, [Acton] hired [Geary] to
place a new roof on this residence. It
called for the addition of two vents, the
replacement of 200 feet of “rotten wood” and
the repair of flashing as needed. [Geary]
was paid $2,500.00 for this work. The
evidence at trial indicated that [Geary] did
what he was hired to do. There was a five
year warranty on this job. Despite
[Acton’s] complaints to [Geary] regarding
the 996 Goss Avenue residence, this
property’s problems were not brought to
[Geary’s] attention until after the warranty
expired. [Acton] has failed to make her
case for an entitlement to $2,000 for
repairs to the property. Not only is the
claim untimely, but [Acton’s] self-serving
statement that she was told repairs would
cost $2,000.00 lacks the proper foundation,
even given her personal knowledge of rentals
and their maintenance costs. This Court
finds for [Geary] on this claim and awards
no damages.
We disagree with the trial court that Acton’s claim
relating to 994 Goss Avenue was time barred.
KRS 413.090(2) is
the appropriate statute of limitation for claims based upon
breaches of the parties’ written contract.
That statute
requires that an action upon a written contract shall be
commenced within fifteen years after the cause of action first
accrued.
Simply because a warranty expires, does not mean that
an individual’s right to sue diminishes as well.
-11-
See:
Nucor
Corp. v. General Electric Co., 812 S.W.2d 136, 145-146 (Ky.
1991).
Testimony was received by each party relating to the
performance of this contract.
Acton testified that the roof had
two vents prior to the repair work and that the parties’
contract was to add two additional vents to the roof.
Acton
further testified that she had received an estimate on
replacement of the roof in the amount of $2,000.00, but she did
not provide any additional proof of this estimate.
James
Wilson, an expert witness on behalf of Acton, testified that the
shingles on the roof of 994 Goss Avenue buckled because of the
heat accumulation due to an insufficient number of vents on the
roof.26
Geary testified that he did what he agreed to do on this
property pursuant to the parties’ contract.
Geary also
testified that initially the roof of 994 Goss Avenue was a tin
roof which meant that when he replaced the roof with a different
material the vent type also differed.
As a result, he had to
remove the two tin roof vents and replace with two new vents on
the replacement roof.
Geary offered no testimony as to whether
he believed two vents provided sufficient ventilation or whether
the roof damage was directly related thereto.
The trial court relied upon the testimony provided by
Geary and found for him accordingly.
26
Because there was no
Mr. Wilson also testified there should have been at least four vents in his
opinion.
-12-
ambiguity in the parties’ contract, the trial court’s finding is
clearly erroneous.
If an ambiguity exists in a contract term, a court
will gather, if possible, the intention of the parties from the
contract as a whole, and in doing so will consider the subject
matter of the contract, the situation of the parties, and the
conditions under which the contract was written.
Frear v.
P.T.A. Industries, Inc., 103 S.W.3d 99, 106 (Ky. 2003), (citing
Whitlow v. Whitlow, 267 S.W.2d 739, 740 (Ky. 1954)).
In the
absence of ambiguity, a written instrument will be enforced
strictly according to its terms.
Id., (citing O’Bryan v.
Massey-Ferguson, Inc., 413 S.W.2d 891, 893 (Ky. 1966)).
In such
cases, a court will interpret the contract’s terms by assigning
the language its ordinary meaning and without resort to
extrinsic evidence.
Id., (citing Hoheimer v. Hoheimer, 30
S.W.3d 176, 178 (Ky. 2000)).
We turn now to the contract
executed in relation to 994 Goss Avenue.
The contract specifically stated “We agree to add 2
vents.”
This term is not ambiguous or warranting parol evidence
to determine the intent of the parties.
As such, the term will
be enforced strictly according to its terms.
Both Acton and
Geary testified that 994 Goss Avenue had two vents on the roof
prior to Geary’s repairs being made.
Based on the contract,
Geary agreed to add two vents to the roof, resulting in a total
-13-
of four vents being present at 994 Goss Avenue at the end of his
repair work.
Geary’s interpretation of the contract was to
replace the existing vents which is contrary to the clear
wording of the contract.
Acton, Mr. Wilson, and Geary each
testified that only two vents were present at 994 Goss Avenue at
the conclusion of Geary’s repair work.
Therefore, Geary
breached the contract related to the vents at 994 Goss Avenue.
In addition, Mr. Wilson provided uncontradicted expert
testimony that the curled shingles were a direct result of heat
damage from the roof not having a sufficient number of vents.
Geary would be liable for all damages incurred as a direct
result of his contract breach.
We reverse the trial court
related to this issue and remand for a determination of the
value to be attributed to Geary’s breach of this contract term.
Specifically, the trial court shall take additional proof to
determine the repair cost to the roof of 994 Goss Avenue.27
Acton’s third argument is that the trial court was
clearly erroneous in finding that the claim for damages to 1012
Ash Street was time-barred.
The trial court held in relation to
1012 Ash Street the following:
The parties signed an undated contract on
this property. The evidence indicated that
this work was done in 1995. As in the other
contracts, a five-year “labor” warranty was
in place in this $750.00 contract. During a
27
We agree with the trial court that Acton’s recitation of an estimate she
received would be insufficient.
-14-
1998 rainstorm, the gutter was stopped up by
tar in the downspout. This resulted in
$1,333.96 in damages to the interior of the
unit. [Acton] maintained that she saw
[Geary] with some tar on the roof, and
[Geary] denies placing tar in the downspout.
The Court finds that this claim was made
outside of the warranty period, and the
evidence is also insufficient to indicate
that [Geary] is responsible for the damage.
This Court finds for [Geary] and awards no
damages on this claim.
Using the trial court’s own finding that the contract
related to 1012 Ash was entered in 1995 and the alleged damages
occurred in 1998, it is clear that the alleged damages occurred
within the five year labor warranty.
We note that the trial
court did have an additional basis for its denial of damages to
Acton.
It found the evidence to be insufficient to indicate
that Geary was responsible for the damage.
argue to the contrary in her brief.
Acton failed to
However, in the interest of
justice, we will examine the same.
At the bench trial, Acton testified she did not
actually see Geary place the tar in the box gutter in the front,
but she did see him carry a bucket of tar up on the roof.28
Acton continued by testifying that after this repair, the front
interior of the rental property was flooded during the first
rain.
Geary testified that he recoated the box gutter in the
front with fiber-coating using a brush.
28
Geary further testified
Acton testified the same on both direct and cross examination.
-15-
that he did not pour a bucket of tar into the box gutter.
Geary
was not questioned by Acton about the alleged repair work to
1012 Ash Street during cross-examination.
Based on the
testimony and evidence presented, we believe it was neither
clearly erroneous or an abuse of discretion for the trial court
to attribute no liability to Geary in relation to 1012 Ash
Street.
Acton’s fourth, fifth, sixth, seventh, and tenth
arguments are each fraud claims involving punitive damages.
The
fifth, sixth, and seventh fraud arguments were never raised in
prior proceedings, and will not be addressed at this time.
The
fourth and tenth arguments are directly related to Geary’s
insurance coverage during the repair projects.
The trial court
granted a directed verdict to Geary on Acton’s punitive damages
claim.
Acton filed a motion to reconsider.
As a result, the
issue of punitive damages was included in the court’s Findings
of Fact, Conclusions of Law, and Judgment.
The trial court
stated in relevant part:
Findings of Fact
Each contract for repair contained a
handwritten clause similar to this:
“Geary’s Home Improvement is responsible for
Liability insurance and Workman’s Comp.”
[Geary’s] insurance, if he had any, did not
cover the work performed. [Acton] maintains
that this misrepresentation constituted
fraud, and, hence, she is entitled to
punitive damages. [Geary] maintains that
-16-
this clause or a similar clause was added at
[Acton’s] request so that she would not be
liable for any injuries suffered by [Geary]
or his employees. At trial [Geary]
furnished to the court a “Commercial General
Liability Section” (Defendant’s Exhibit 3),
which indicates that from December 10, 1995,
through June 18, 1996 he had coverage with
Action Insurance Agency, Inc.
Conclusions of Law
Punitive Damages
After reviewing the record and the parties’
testimony, the Court still believes that [Acton]
has failed to prove her entitlement to punitive
damages. The evidence was clear that either
[Geary] had insurance which covered liability to
individuals who might be working for him, or, in
the alternative, that the parties had informally
agreed to the nature of [Geary’s] “liability.”
It is important to note that [Acton’s] status
both as a multi rental homeowner and an attorney
places her in a better position to judge whether
the person she is hiring has sufficient insurance
coverage for her intended purposes. The Court is
assisted in interpreting the liability provision
of the contracts by referring to the 1998
contract on the house at 1131 Reutlinger, which
states in the warranty section that “Geary’s Home
Improvement is responsible for all damages and
injuries to workers.” There was no testimony
regarding further inquiry into the nature of
[Geary’s] “coverage” before the work was done.
The burden rests squarely on [Acton] to prove her
claim of fraudulent misrepresentation. . . . The
Court cannot find that [Geary] acted fraudulently
in this action.
In an 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)
-17-
known to be false or made recklessly; (d) made with inducement
to be acted upon; (e) acting in reliance thereon; and (f)
causing injury.
United Parcel Service Company v. Rickert, 996
S.W.2d 464, 468 (Ky. 1999), (citing Wahba v. Don Corlett Motors,
Inc., 573 S.W.2d 357, 359 (Ky.App. 1978)).
Acton testified she required an insurance clause be
added to each contract, but she did not offer an explanation
concerning the type of coverage intended.
Geary testified Acton
was concerned about potential liability from his employees.29
Each contract had a handwritten clause about insurance as
follows:
994 Goss Avenue
“Geary’s Home Improvement will provide work
comp and liability insurance.”
996 Goss Avenue
“We are resonable [sic] for liabity [sic]
insurance and workman comp.”
1012 Ash Street
“Geary’s Home Improvement is responable
[sic] for Liabity [sic] insurance and
workman comp.”
1131 Reutlinger Avenue30
“Geary’s Home Improvement is reasonible
[sic] for all damages and injuries to
workers.”
29
Geary’s testimony was the same on direct and cross examination.
30
This property is not part of the appeal but was relied upon the court in
its judgment in relation to the punitive damages matter.
-18-
Following a review of the record and trial video, we
believe there was substantial evidence to support the trial
court’s conclusion that the inserted insurance clauses were
added due to potential liability from Geary’s employees.
As
such, we believe Acton failed to prove the injury element of her
fraud claim.
No proof was entered as to injuries to Geary or
any of his workers resulting in Acton’s liability.
Therefore,
we agree with the trial court that Acton failed to satisfy her
burden of proof on her fraud (i.e. punitive damages) claim.
Acton’s final arguments, eight and nine, are related
to alleged building and housing code violations in relation to
996 Goss Avenue.31
Acton argues that the trial court was clearly
erroneous in its refusal to find that Geary was grossly
negligent and violated the building and housing code.
Acton
also argues that it was clearly erroneous and an abuse of
discretion for the trial court to refuse to award her attorney
fees where there was evidence that Geary violated the building
and housing code.
31
Acton failed to make a claim of a violation of the building codes and KRS
198B in her original complaints, amended complaint, and more definitive
statement. The first mention of this claim was in her Pretrial Compliance
Supplement filed May 13, 2004.
-19-
At trial, the only evidence submitted to support
Acton’s claim of code violations came in the form of Acton’s
submission of the housing code into evidence.
Acton’s expert witness who was to testify regarding
the alleged violations, Brian Miller, was not allowed to testify
on this issue because of untimely notice to Geary.32
The trial
court made no mention of these alleged code violations in its
order, because it found that the parties had settled as to this
particular property.
However, we will again examine Acton’s
arguments in the interest of justice.
At trial, Acton admitted that Geary did not cause the
joists to be unconnected to the house, but as her roofer, Geary
should have repaired the structural defect or told her it needed
to be repaired.
We do not agree with Acton that Geary could be
liable for another’s faulty construction.
Therefore, we believe
there is no merit to this claim.
For the reasons set forth above, we believe the trial
court was neither clearly erroneous nor abused its discretion in
its judgment as to 996 Goss Avenue, 1012 Ash Street, or Acton’s
claim of punitive damages.
However, we believe the trial court
did err in its judgment as to 994 Goss Avenue.
Therefore, we
affirm the Jefferson Circuit Court’s denial of recovery to Acton
as to 996 Goss Avenue, 1012 Ash Street, and her punitive damages
32
Acton failed to list Mr. Miller as a potential expert witness.
-20-
claim.
We reverse and remand for additional proof on Acton’s
damage claim on 994 Goss Avenue and for the court to enter a
judgment in accordance with this opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Dana R. Kolter
Jean Acton
Louisville, Kentucky
Edward L. Lasley
Kenneth A. Bohnert
Louisville, Kentucky
-21-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
