JANE FERRIELL D/B/A J. KEITH UPHOLSTERY & DESIGN v. SALOMAN PODGURSKY
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RENDERED:
JANUARY 27, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000403-MR
JANE FERRIELL D/B/A J. KEITH
UPHOLSTERY & DESIGN
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE F. KENNETH CONLIFFE, JUDGE
ACTION NO. 00-CI-005941
SALOMAN PODGURSKY
APPELLEE
OPINION AND ORDER
DISMISSING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; DYCHE AND JOHNSON, JUDGES.
COMBS, CHIEF JUDGE:
Jane Ferriell appeals from a Memorandum and
Order entered by the Jefferson Circuit Court on January 28,
2005, which denied her motion for a partial summary judgment on
the issue of liability in her lawsuit against Saloman Podgursky
for breach of a commercial lease.
The order also denied
Ferriell’s motion to set aside an order previously entered by
the court on October 30, 2002, which eliminated various elements
of the damages that she sought.
Although the order of January
28, 2005, contains language certifying its finality, our review
of the record reveals that it is interlocutory in nature.
Therefore, we dismiss the appeal and remand for further
proceedings.
From 1983 to 1998, Ferriell operated an upholstery
business at property that she leased from Podgursky at 2113
Frankfort Avenue, Louisville, Kentucky.
The parties utilized
various written lease agreements until 1996.
In 1996, Podgursky
presented a lease to Ferriell that she refused to sign.
After
negotiations, the parties agreed to continue their arrangement
on a month-to-month basis pursuant to the terms of their 1994-96
lease agreement.
In June 1998, Ferriell vacated the premises after
water damage to the roof caused a portion of the ceiling to
collapse.
On September 14, 2000, she filed a lawsuit against
Podgursky, alleging that he breached his obligations under the
lease “by failing to provide safe, usable premises and peaceable
possession of the premises.”
She sought compensatory damages
for the loss sustained to her personal property and to her
customers’ property as well as for the injury that she claimed
had resulted to her reputation and good will.
She also sought
damages for the interruption caused to her business as a result
of the need to re-locate.
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Podgursky filed a counterclaim.
He alleged that
Ferriell had not provided him with 30-days’ notice of her intent
to leave before she vacated the property.
He claimed that
Ferriell owed him back rent, that she caused physical damage to
the property, and that she wrongfully converted certain fixtures
and other personal property belonging to him.
Ferriell filed an amended complaint in which she
claimed that Podgursky’s failure to maintain the roof
constituted “willful or wanton negligence” and “gross
negligence,” entitling her to punitive damages pursuant to KRS1
411.184.
She also asserted a claim for attorney’s fees pursuant
to the terms of the lease.
The action was originally filed and litigated in
Division Ten of the Jefferson Circuit Court.
On October 30,
2002, the trial court entered an order disposing of Podgursky’s
motion for summary judgment.
The court determined that there
was no evidence to support Ferriell’s contentions that Podgursky
acted wantonly or recklessly with respect to his duty to
maintain the rental property and that, therefore, punitive
damages would not be awarded.
However, it denied the motion for
summary judgment on the breach of lease claim, finding the issue
to be disputed.
1
Kentucky Revised Statutes.
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The court made a series of findings:
that Ferriell
was not entitled to punitive damages for breach of lease; that
she could not recover for the damage she allegedly suffered to
her reputation as a result of her landlord’s breach of lease;
that she could not recover damages “to reestablish her business”
or moving expenses because such expenses were speculative and
constituted “a cost of doing business”; and that she was not
entitled to recover as damages the improvements she made to her
new business premises.
(Findings of Fact, Conclusion of Law and
Order, entered October 30, 2002, at pp. 11-12.)
The court determined that Ferriell could present
evidence of general damages; that is, the difference between the
reconstituted value of the premises in a repaired condition and
the diminished value of the premises at the time of the alleged
breach.
It also ruled that she was entitled to seek lost
profits “caused by the natural result of the breach.”
Id.
On December 23, 2002, the court granted Ferriell’s
motion to reconsider its ruling to the extent that it clarified
that her claims for costs and attorney’s fees remained viable.
Subsequent to this order, unrelated events required the trial
judge to recuse himself from the case.
Ferriell’s claim and
Podgursky’s counterclaim were reassigned to a new judge.
Two years passed.
The trial was continued on several
occasions at the request of the parties.
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Ferriell obtained new
counsel, who filed a motion requesting reconsideration of the
court’s prior interlocutory orders.
For the first time,
Ferriell alleged that she was not a month-to-month tenant but
that she was entitled to the status of a holdover tenant
pursuant to KRS 383.160(1).
On January 28, 2005, the court entered the order
before us in this appeal.
Citing and relying on Ferriell’s
numerous acknowledgments as to the month-to-month nature of her
tenancy in her deposition testimony, the order determined that
the previous judge had been correct as to the characterization
of the leasehold as being that of month-to-month.
With respect
to the issue of damages allowable, the court stated that it
could find “no reason to set aside” the previous rulings.
Sua
sponte, the court then announced that the order was final and
appealable, reciting the pivotal phrase, “there being no just
cause for delay.”
This appeal followed.
Generally, this Court has jurisdiction only over final
judgments and orders issued by our circuit courts.
22A.020(1).
KRS
Even though the parties have not questioned the
finality of the order under our review, we nevertheless have an
independent duty to determine whether we have jurisdiction to
reach the merits of the appeal.
"A final or appealable judgment is a final
order adjudicating all the rights of all the
parties in an action or proceeding, or a
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judgment made final under Rule 54.02." CR2
54.01. "This court on its own motion will
raise the issue of want of jurisdiction if
the order appealed from lacks finality."
Huff v. Wood Mosaic Corp., Ky., 454 S.W.2d
705, 706 (1970). In fact, we are required
to do so. Central Adjustment Bureau, Inc. v.
Ingram Associates, Inc., Ky.App., 622 S.W.2d
681, 683 (1981), citing Hook v. Hook, Ky.,
563 S.W.2d 716 (1978).
Francis v. Crounse Corp., 98 S.W.3d 62, 64 (Ky.App. 2002).
CR 54.02(1) allows a trial court to finalize certain
interlocutory judgments as follows:
When more than one claim for relief is
presented in an action, whether as a claim,
counterclaim, cross-claim, or third-party
claim, or when multiple parties are
involved, the court may grant a final
judgment upon one or more but less than all
of the claims or parties only upon a
determination that there is no just reason
for delay. The judgment shall recite such
determination and shall recite that the
judgment is final[.]
Although the trial court stated that its order was final and
appealable in compliance with this rule, its recitation is not
necessarily determinative.
Francis, supra;
see also, Hale v.
Deaton, 518 S.W.2d 719, 722 (Ky. 1975), and Preferred Risk
Mutual Ins. Co. v. Kentucky Farm Bureau Mutual Ins. Co., 872
S.W.2d 469, 470 (1994).
Rather, we must examine the record to
determine whether the judgment completely disposes of at least
one claim.
2
CR 54.02.
Kentucky Rules of Civil Procedure.
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It is apparent from the procedural history of this
case that there has been no order entered in this case which
wholly disposes of a single claim of either party to this
litigation.
Although Ferriell presented three separate legal
theories (breach of lease, constructive eviction, and gross
negligence) for imposing liability on Podgursky and has asserted
entitlement to multiple elements of damages, she has only a
single claim against Podgursky as contemplated by CR 54.02 -his alleged liability for negligent maintenance of the real
property.
That claim remains pending in the circuit court.
It
is possible that at trial, a jury might exonerate Podgursky from
any liability in his role as Ferriell’s landlord, rendering moot
all of the issues that she has raised in this appeal.
opposite outcome is equally possible.
The
The only other claim,
Podgursky’s counterclaim, also remains unresolved.
Therefore, it is hereby ORDERED that the appeal be
DISMISSED as having been taken from a nonfinal order.
ALL CONCUR.
__ __/s/ Sara Combs__________
CHIEF JUDGE, COURT OF APPEALS
ENTERED:
January 27, 2006
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
George R. Carter
Louisville, Kentucky
Richard W. Edwards
Quang D. Nguyen
Louisville, Kentucky
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