KING (MARVIN) VS. G.D. MEDLEY AND SONS
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RENDERED: DECEMBER 19, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-001566-MR
MARVIN KING
v.
APPELLANT
APPEAL FROM MEADE CIRCUIT COURT
HONORABLE SAM H. MONARCH, JUDGE
ACTION NO. 99-CI-00071
G.D. MEDLEY AND SONS
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON AND VANMETER, JUDGES; GUIDUGLI,1 SENIOR
JUDGE.
CAPERTON, JUDGE: Marvin King brings this appeal from a July 31, 2007, order
of the Meade Circuit Court, whereby the court adopted the special commissioner’s
findings of fact, conclusions of law, and judgment which awarded G.D. Medley
Senior Judge Daniel T. Guidugli sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
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and Sons (Medley) $3,162.87 against King. After a thorough review, we affirm
the judgment of the trial court.
King entered into a contract with Medley to construct a new house.
King was to provide all material. The entire contract price had been paid to
Medley excluding $3,162.87 when a dispute arose between King and Medley.
Medley filed suit to collect the amount due under the contract. King countersued
for a breach of contract, asserting that the concrete porch attached to his house was
not constructed in a good and workmanlike manner as agreed to in the contract.
The court then assigned the case to a special commissioner who heard the evidence
and issued the findings of fact and conclusions of law, which the court ultimately
adopted in full.
On appeal King argues two errors. First, that the court erred and
abused its discretion by appointing a special commissioner to hear the case.
Second that the court erroneously awarded judgment to Medley and erred when the
court failed to consider King’s evidence of damages. In response, Medley argues
that both parties agreed to the special commissioner, likening this case to that of
binding arbitration or mediation. Medley also argues that the issue concerning the
appointment of the special commissioner was not properly preserved for review,
that the court properly found that Medley completed the home in accordance with
the terms of the contract, and that the court did not err in denying King’s claim for
damages.
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King’s first argument, that the court erred in appointing a special
commissioner, is unpreserved. The authority of the trial court to appoint a
commissioner is found first in CR 53.01, second, in CR 53.02 and last, in the
Administrative Procedures of the Court of Justice (AP) Part IV, Section 4.2 Since a
circuit judge’s authority to appoint a special commissioner is found in AP, Part IV,
Section 4, which defines the authority in terms of CR 53.02, we shall address AP,
Part IV, Section 4 under the CR 53.02 argument.
First, CR 53.01 addresses the appointment of a commissioner. “Each
circuit court may appoint a master commissioner and a receiver as authorized by
statute. Other commissioners, deputy commissioners, receivers, and their
assistants may be appointed only upon express authority of the Chief Justice.” Id.
Our review of the record has failed to produce the approval of the appointment of
the special commissioner by the Chief Justice of the Kentucky Supreme Court.
Second, CR 53.02(3) addresses the use of a “special” commissioner.
All other references to commissioners shall be warranted
only in special cases. Cases may be regarded as special
due to complexity of issues, damages which are difficult
to calculate, a multiplicity of claims the priority of which
must be established, matters of account involving
complex or numerous transactions, or similar exceptional
circumstances. A commissioner performing this function
shall be qualified as an attorney.
AP, Part IV, Section 5 sets out the requirements for a master commissioner’s report in special
proceedings and follows CR 53.06, which requires a report by the commissioner in a special
proceeding to be filed with the clerk of court, and also provides the amount of time for parties to
object to the report.
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A review of the record does not reflect that the order appointing the special
commissioner contained the “special” circumstances justifying the need for a
special commissioner. Case law in the Commonwealth addressing appointment of
a special commissioner is sparse as the issue has infrequently arisen. The facts in
this case are more akin to a line of cases discussed in Jacobs v. Commonwealth,
947 S.W.2d 416 (Ky.App. 1997).
In Jacobs, this Court undertook an analysis as to whether the failure to
object to a special judge at the trial level waived the error. In concluding that the
failure to object was fatal to the claimed error, this Court accepted the reasoning in
Vandever v. Vandever, 3 Met. 137, 1860 WL 5102 (Ky. 1860). In Vandever, the
court held that failure to object to a local attorney appointed as a special judge
constituted a waiver of the objection.
Similarly, in Salyer v. Napier, 51 S.W. 10, 11 (Ky. 1899) the court
followed Vandever and stated that:
It is true that the record fails to show that the special
judge was selected according to statutory provisions, or
was selected by express agreement of parties to try the
action; but it is sufficient answer to say that there appears
to have been no objection by any of the parties in the
lower court to trial by the special judge. Appellants
participated in the trial of the action, filing many
pleadings and introducing much proof, and this court will
not now for the first time entertain the objection as to the
authority of the special judge to render judgment.
Vandever v. Vandever, 3 Met. 137 (Ky. 1860).
We find the reasoning of this line of cases to be persuasive. While the
appointment of the special commissioner in the case sub judice failed to comply
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with the established protocol, we agree with Medley that as both parties consented
to the special commissioner, participated in the hearing, filed objections to the
special commissioner’s findings with the trial court, but never objected to the
appointment of the special commissioner, King cannot now raise for the first time
on appeal an issue that should have been properly presented to the trial court for
consideration. See Kennedy v. Commonwealth, 544 S.W.2d 219 (Ky. 1976);
Shelton v. Commonwealth, 992 S.W.2d 849 (Ky.App. 1998). Thus, the issue has
been waived, and we will not consider it further herein.
King’s second argument, that the court erroneously awarded judgment
to Medley and failed to consider King’s evidence of damages, was properly
preserved, as King objected to the proposed findings of the special commissioner.
King correctly notes that the interpretation of a contract is reviewed
de novo by this Court. Cantrell Supply, Inc. v. Liberty Mut. Ins. Co., 94 S.W.3d
381 (Ky.App. 2002).3 However, the interpretation of the contract is not an issue
before this Court. It is undisputed that the contract required Medley to provide the
labor and complete the project in a good and workmanlike fashion. King was to
provide the materials. The issue is whether the court erred in awarding a judgment
to Medley and whether the court considered King’s evidence of damages. These
issues must be considered separately because different standards of review apply.
We note that if a question of law had presented itself, then the application of the law to the trial
court’s findings of fact would be reviewed de novo. See Carroll v. Meredith,59 S.W.3d 484
(Ky.App. 2001).
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First, the trial court awarding a judgment in favor of Medley is a legal
conclusion and is adjudged under an abuse of discretion standard. Fischer v.
MBNA America Bank, N.A., 248 S.W.3d 567 (Ky.App. 2007). Abuse of discretion
is that which is arbitrary, unreasonable, unfair, or unsupported by sound legal
principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). A review
of the record presents sufficient evidence for the trial court to base its decision to
award the judgment in favor of Medley and thus the judgment was not an abuse of
discretion.
At the hearing, the subcontractor responsible for the concrete testified
that concrete could crack and could not be guaranteed. Further, he testified that on
the day the concrete was delivered it had to be poured, and only 60-75% of the
rebar was available at that time.4 The evidence produced by King in an attempt to
prove unworkmanlike construction were photographs depicting the cracks in the
concrete. Based on the evidence, we do not find an abuse of discretion by the
court entering a judgment in favor of Medley.
King’s argument that the trial court failed to consider his evidence of
damages, arises from the trial court’s finding which states: “although [King]
presented evidence in a form of photographs indicating defective workmanship in
the porch floor, no evidence was presented as to the damages resulting from these
defects.”
Note the contract indicated that King was responsible for providing the materials, and on the
date the concrete was to be poured there was insufficient rebar provided by King.
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CR 52.01 provides that the factual findings of a trial court are binding
upon the appellate courts unless clearly erroneous. Findings of fact are not clearly
erroneous if supported by substantial evidence. Janakakis-Kostun v. Janakakis, 6
S.W.3d 843, 852 (Ky.App. 1999) citing Ky. State Racing Comm’n v. Fuller, 481
S.W.2d 298, 308 (Ky. 1972). Substantial evidence is that when taken alone, or in
the light of all the evidence, has sufficient probative value to induce conviction in
the minds of reasonable men. Janakakis, 6 S.W.3d 852.
King argues that evidence as to damages was presented through his
testimony as well as the subcontractor who poured the concrete. King concludes
that based on the testimony of the subcontractor, his amount of damages would be
at least $3,162.87. Medley argues that the amount of damages is not contained in
the record.
In order for King to recover, it was necessary that he establish his
claim of damages. In a defective construction case, the measure of damages is the
cost of remedying the defect as long as it is reasonable to do so or the diminution
in the value of the building by reason of the defect. See State Property &
Buildings Comm'n of Dep't of Finance v. H.W. Miller Const. Co., 385 S.W.2d 211
(Ky. 1964). Our review of the record reveals only limited references to damages,
and even fewer references to the cost of remedying the defect. The relevant
evidence in the record shows that the subcontractor testified that it would take one
to two days to complete the repairs. This is reflected in the trial court’s findings of
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fact. Further, the subcontractor could not testify as to the dollar amount this repair
would cost.
The “cost” of repair is the amount that King seeks and thus, was his
burden to prove. While King submitted pictures of the alleged defect, this is not
sufficient to prove damages. The amount of damages must be reasonably
ascertainable from the record and expressed in a monetary figure.5 Insofar as King
failed to prove monetary damages, his claim for damages must fail. The trial
court’s findings of fact make it clear that the testimony of the subcontractor
concerning the repair work was considered. It was King’s burden to prove his
case, and as such, it was he who bore the risk associated with his failure to
persuade the trier of fact.6 See Purcell v. Mich. Fire & Marine Ins. Co. of Detroit,
173 S.W.2d 134 (Ky. 1943).
Ultimately, after thorough consideration of the record before us, we
cannot conclude that trial court’s finding “no evidence was presented as to the
damages resulting from these defects” was clearly erroneous.
For the aforementioned reasons we affirm the judgment of the Meade
Circuit Court.
ALL CONCUR.
Our case law routinely cites the amount of damages as expressed in a monetary figure and often
refers to the amount as the “sum” of damages. Thus, King was required to provide a calculable
dollar amount. See Univ. of Louisville v. RAM Eng. & Constr., Inc., 199 S.W.3d 746, 748
(Ky.App. 2005); Young v. Vista Homes, Inc., 243 S.W.3d 352 (Ky.App. 2007)
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King cites Byerly Motors, Inc. v. Phillips Petroleum Co., 346 S.W.2d 762 (Ky. 1961) to support his
argument that the amount of damages may be determined on probable and inferential proof. However, in
Byerly the court stated “[w]here there is certainty of the right of recovery but uncertainty of the amount,
appellate courts view liberally its determination by the trial court.” Id. at 765. Based on the record, we
must affirm the trial court.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Mark T. Scott
Brandenburg, Kentucky
Steven R. Crebessa
Brandenburg, Kentucky
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