AEP Industries, Inc. v. B.G. Properties, Inc.
Annotate this Case
Justia Opinion Summary
Want to stay in the know about new opinions from the Kentucky Supreme Court?
Sign up for free summaries delivered directly to your inbox. Learn More ›
You already receive new opinion summaries from Kentucky Supreme Court. Did you know we offer summary newsletters for even more practice areas and jurisdictions? Explore them here.
The Supreme Court vacated the opinion of the court of appeals ruling that the circuit court prematurely granted specific performance of an option contract because disputed issues of fact material to that form of relief had been left unresolved in the circuit court. The circuit court granted the motion for specific performance of a real estate option contract between AEP Industries, Inc. (AEP) and B.G. Properties, Inc. (BG). The court of appeals determined that the circuit court had not adequately addressed the threshold issue of whether, as alleged by BG, AEP had first violated the option agreement with a faulty appraisal and thus was barred from seeking specific performance. The Supreme Court reversed, holding that BG’s execution and delivery of a general warranty deed without an express reservation of rights and its acceptance of stated consideration for the transfer precluded its further challenge to the enforcement of the option agreement.
Download PDF
RENDERED: SEPTEMBER 28, 2017 TO BE PUBLISHED ·~up:rttttt QJ:nurf nf '!ftmfudtlJ 2014-SC-000512-DG . · AEP INDUSTRIES, INC. v. APPELLANT ON REVIEW FROM COURT OF APPEALS CASE NO. 2Q13-CA-000132 . WARREN CIRCUIT COURT NO. 12:-CI.:.oo467 B.G. PROPERTIES, INC. APPELLEE OPINION OF. THE COURT BY JUSTICE VENTERS VACATING .AND REMANDING ·· AEP Industries, Inc: (AEP) appeals from an opinion of'the Court of Appeals which vacated a-final order of the Warren Circuit Court granting AEP's motion for specific performance of a real. estate option contract ·between AEP filid B.G. Properties, Inc. (BG). The Court of Appeals. held that the circuit court granted speeific performance of the option contract prematurely because disputed ·issues of fact material to that form of relief had been left unresolved in the circuit court. The Court o~ Appeals remande~~ the matter for resolution of ·those issues. We granted discretionary review, and upon review we vacate the . . opinion of the Court of Appeals and remand the action· to. the trial court with dire~tion to dismiss any remaining Glaims. · ' I. FACTUAL AND PROCEDURAL BACKGROUND· BG and its predecessor in interest owned an industrial building located on a 19.7-acre tract in Bowling Green, Kentucky. The building had been used . . for manufacturing flexible plastic packing products and contained features uniquely suited to that purpose. AEP leased the property from BG for use in its business of manufacturing flexible plastic packaging. AEP arid BG were . ' mutUally obligated under several agreements concerning the property. Those agreements provided AEP with an option to purchase the property. 1 The specific terms of .the purchase option are provided in two documents: the "Consent to Assignment of Lease and Grant of Option fo Purchase" made in 2001 and the "Agreement Modifying Sublease and Option" made iri 2010. These two documents collectively provide the terms of AEP's option to purchase ·the property. We refer to those documents together as the "Option Agreement" . or "the Agreement." The Option Agreement expressly provided the following four-stage · process for ascertaining the purchase price if AEP decided to exerci~e purchase option. First, the parties would attempt to negotiate a fair its pur~hase price. ·Second, if the negotiation failed to achieve a mutu:ally agreeable 'price, ' ' then BG would deliver to AEP an appraisal of the property by a qualified More specifically, AEP subleased the property from a primary leaseholder and certajn of the· agreements were initially executed by the parties' respective predecessors in interest; however, these details are not relevant to our review. 1 -, 2 professional appraiser2 with thy app~aisal subject to. special requirements as · further described below. Third, if AEP declined to purchase at BG's appraised ' . . . value, then AEP would obtain its own qualified appraisal a_nd ' s~brpit it to BQ. Fourth~ arid finally, if BG rejected_ AEP's appraised value, then AEP's appraiser . and BG's appraiser .would together select a third appraiser whose independent valuation of the property would become the final purchase price. The Option Agreement included two other terms that are significant in our review: 1) eve·ry appraisal of the property undertaken to determine the purchase price would ascertain "the fair market value based on its highest and best use, plus the value of all special features and fixtures located therein for AEP's use as an extrusion and flexible packaging manufacturing facility;" and 2) the Agreement granted AEP seven days after the final deterrriination of the . purchase price under stage four to withdraw the exercise of its option to purchase the property. In August 2011, AEP informed BG that it .intend~d to exercise the option to ptirchas~ the property, thereby triggering the four-stage process for · determining the price .. Tbe initial attempt to negotiate a purchase price was unsuccessful.· -BG then obtained an appraisal by Brantley Appraisal Company, . . . /,. which valued the property at $7 ,500,000. AEP rejected that price, and as requfred by the Option Agreement, AEP then obtained its own appraiser, selecting CBRE, which valued the property at $3,550,000. 2 The· Option Agreement set forth particular .qualifications for the appraisers used. 3 BG rejected CBRE's valuation. AEP then attempted to initiate the final stage of the process, the s~lection of the third appraiser, but BG refused to cooperate. BG claimed that AEP did not properly comply with the third stage of the pricing process because the. CBRE appraisal tendered by AEP did not meet . . . the special conditions of the Option Agreement for a value based upon "the highest and best use of the property" and for the inclusion of the "special features arid fixtures located therein for AEP's use as an extrusion and flexible packaging manufacturing facility." Accordingly,.BG insisted that before moving . to the fourth stage of the pricing process~ AEP was obligated first to submit an appraisal that complied with the special conditions of the Option Agreement. Instead of acceding to BG's demand to submit a different appraisal, AEP filed a.n'-action in the Warren Circuit Court alleging that BG was in breach of the Option Agreement for failing to proceed with the selection of the third . appraiser . .AEP sought a court order compelling BG to participate in the appointment of a third appraiser. BG responded to the suit with an answer and co~nterclaim. BG invoked the well-settled equitable principle that specific performance of a contract will only be granted when the party seeking the _specific performance has itself complied with all terms of the contract. To be granted specific performance of 'an agreement for the sale of real property, all conditions precedent to the sale must have been complied with by the party seeking such specific performance. 3 3 See 25 Williston on Contracts§ 67:73 (4th ed. 2013) ("The performance of all conditions precedent is generally required before specific performance will be 4 BG asserted that AEP's failure to submit a proper appraisal at the third stage ., of the pricing process was a breach of the Option Agreement by AEP that barred its claim for specific performance. BG .also claimed that in addition .to the disagreement about the CBRE appraisal, AEP had also breached the provision of the lease agreement requiring it to keep the roof of the building in good repair. BG contended that the appraisals used to determine the purchase price should not be discounted by the .deteriorated condition of the roof that AEP had failed to maintain. Eve:r;itually, upon motions for summaryjudgment, the circuit court · determined that CBRE's appraisal complied with ~he conditions of the Option · Agreement. The court directed BG to proceed with the fourth stage of the , appraisal process, the selection of the third and final appraiser. The circuit· ~ourt fixed a deadline for obtaining that appraisal and held the remainder of the action in abeyance pending its completion. :Iri compliance with the circuit court's order, BG and AEP selected G. Herbert Pritchett as the third appraiser. Pritchett valued the property at ·$3~834,000. AEP was satisfied with that price, but BG refused to transfer the · property, claiming that Prit.chett's appraisal suffered the same deficiency as CBRE's appraisal: it failed to account for "the highest and best use of the property" as defined in the Option Agre~ment and it failed to factor in the special features that made the property uniquely suited to AEP's granted."); WestKy. Coal Co. v. J.D. Nourse, 320 S.W.2d·311 (Ky. 1959); Puritan Homes, Inc. v. AbeU, 432 S. W.2d 632 (Ky. 1968). 5 manufacturing process, as set forth in the Option Agreement. BG also complained that Pritchett's appraisal unfairly diminished the value of the . . ' . . . . . . property due to the poor condition of the roof that AEP had failed to maintain. AEP then moved the circuit court for an order compellin~ specific performance of the Option Agreement by" d}recting BG to convey the property at Pritchett's apprais~d value of $3,834,000. In addition, AEP demanded a credit against the purchase· pnce of $407, 987 .37 for the additional rent. payments. it had incurred under the lease due· to BG's failure to voluntarily cooperate in the selection of the third appraiser iri a timely manner.4· BG.responded by reiterating its position that AEP had initia).ly breached the agreement by failing to tender a qualifying appraisal and for that reason it could not demand specific performance of the very contract it had breached. By order dated December 19, 2012, the circuit court rejected BG's arguments.· It determined that Pritchett's appraisal of the fair market yalue of property at $3,834,000 prop~rly accounted for the ~ite's "special features and fixt:ures" and was consistent with the terms of the Option Agreement and that court's previous order. The circuit court also concluded that the Pritchett 7 appraisal properly accounted for the "roof issu~" a,nd, therefore,. no variance , from the app~aised value was required to accommodate that concern .. The . 4 But for BG's opposition to the appraisals, tlie transfer of property pursuant to the parties' Option Agreement, and th~ corresponding cessation of AEP's· rez:it · obligation under the lease, would have occurred by June l; 2012. The rent credit was calculated to compensate AEP for the additional rent paid between June 1, 2012 and the eventual transfer of the property on December 31, 2012. 6 . circuit court also granted AEP's demand for a credit for the additional rental · payments incurred due to BG;s delaying the transfer ()f the property during the dispute. 'The December i9, 2012 order directed BG-to convey the property to AEP for the price fixed.by Pi-itchett's appraisal, $3,834,000.00. The circuit ·court also awarded AEP claimed rent credit of $407,987.37, for a net payment · · obligation of $3,426,012.63 due to BG. Rathe.r than seeking immediate relief to abate the· enforcement of the order and thereby avofd transferring the property for what it. regarded as . ' inadequate consideration, and rather than tendering a conciitional deed stating the involuntary nature of the conve~a:n.ce and reserving its objection to the · forced sale at an inadequate price, BG filed with the circuit court a "Motion ~or . . Approval of Deed Form and an Order ~reserving Claims," tendering a · . ' ' ' conventional general warranty deed for the unconditional transfer of the pr~perty to AEP in fee ·simple for the stated consideration of $3A26,012.63~ s AEP responded to' BG's motfon, voicing no objection to the form of the deed but vigorously opposing the entry of an order that would sanction the transfer of title while l<?aving the consideration to be paid for the property open to appeal .and further litigation .. AEP argued that a transfer bf title leaving the purchase pric'e .f~r later determination would violate AEP's righ~ under the s It is worth noting that the purchase price as listed on the deed is not consistent with the Pritchett appraisal value but instead directly incorporates the trial · court's ruling on the rent credit issue. The stated consideratio~ ·equals the appraised value of the property minus the unrelated rent credit. The effect of this anomaly has 'not been addressed by 'the parties,. and we express no opinion upon it. 7 Option Agreement to reject the final price and walk away from the option. AEP argued that BG's remedy was to seek a stay of the enforcement of the circuit court order pending appeal. The. circuit court entered an order approving the form of the deed but . - .. otherwise denying·BG's requested relief.. The order was designated as final and . appealable pursuant to CR 54.02(1). Immediately thereafter, BG executed the deed acknowledging the receipt from AEP of the stated consideration of $3,426,012.63 for which BG did expressly "bargain, alien, grant, deed, sell, and convey unto [AEP] in fee simple [the subject property]." AEP promptly recorded the deed. BG did not record a lis pf!ndens notice to signify its retention of ongoing litigative interest in the· property. Before completing the transfer of the property, BG had neither asked the .Gircuit court to fix the amount of a supersedeas bond nor had it posted a supersedeas bond. BG undertook no measures to forestall the transfer of the property to ,AEP for the stated price of $3,426,012.63. Instead, after closing on . . the transfer of the property, BG filed a notice of appeal se~king review of the . circuit court's order awarding specific performance· of the Option Agreement. Although BGpresented the Court of Appeals wlth six allegations of error gen:nane to the disputed appraisal process and the valuation of the property, . . BG requested no relief to negate the conveyance of the property .. BG did not .ar~e that the conveyance should be set aside or disturbed in any way other than a re-assessment of the sales price .. 8 The Court of Appeals vacated the circuit court's order and remanded the .. ·case for further proceedings, reasoning that the circuit court had not" adequately addressed the threshold issue of whether, as alleged by BG, AEP had first violated the Option Agreement with a faulty appraisal° and thus. was barred from. seeking specific performance. Citing this Court's decision in DreamersLLCv. Don'sLumber&Hardware;Inc., 366 S.W.3d 381(Ky.2011), . . . . th~ Coµrt of Appeals rejected AEP's argument that BG's conveyance of the property and. acceptance of the coriside:r;-ation rendered moot the dispute over the property's value. We granted.discretionary review to examine whether BG can continue to challenge the enforcement of the Option Agreement after it conveyed the property· to AEP by general warranty deed without reservation, and · correspondingly accepted the stated consideration for the transfer. We conclude that it cannot. BG's execution and delivery of a general warranty . . deed without an express reservation ofrights and its acceptance of the stated consideration foreclol3ed its optioI?- to further challenge ~e enforcement of . . . . Option Agreement. Accordingly, we. reverse the. Court of Appeals. II. ANALYSIS For the reasons stated below, we conclude BG's. execution and delivery ·of . the general warranty deed conveyin.g the property to AEP in fee simple, without qt:1,alification or condition, coupled with its unconditional acceptance of the . purchase price renders the controversy moot.· Assuming, as BG contends, that the circuit col1rt erred by granting specific performance of the Option 9 Agreement at the purchase price fixed by the Pritchett appraisal, then BG's appropriate appellate remedy would be the reversal of th~ circuit court's order· · and the restoration of the parties to the status quo ante. Reversing the circuit court's order would put the parties back in the circuit court to adjudicate" the · issues pertin.ent to establishing a purchase price for the execution of the Option Agreement and allow them to litigate the collateral issues arising from. the parties' lease. That relief is now unattainable because the property has now been unconditionally soid'. BG offers no argument seeking to unwind, or nullify, that sale to restore the status quo ante. Moreover; BG's requested · remedy is a chance to re-litigate upon remand o,nly the purchase price of the . property without nullifying the conveyance. That result does not restore the status quo ante because it eliminates AEP's contractual right to withdraw from the purchase within seven days if it objects to the final price. BG did not preserve its objections to the trial court's order of specific performance of the Option Agreement by posting- a supersedeas bond pursuant to CR 62.03, CR 73.04, and CR 73.06. Nor did BG avail itself of an alternative means of staying the order by seeking immedi.ate relief from the Court of Appeals ,staying the matter pending appellate review. Instead, BG transferred the property. As we held in Green Valley Environmental Corp. v~ Clay, citing Section 111 of Kentucky's Constitution,6 the Court of Appeals has the power I~ pertinent part, Section 111 of the Kentucky Constitution provides: "The Court of Appeals ... may 'issue all writs necessary in aid of its appellate jurisdiction, or the ·complete determination of any cause within its appellate jurisdiction." 6 10 "to grant a stay pending appeal in order to maintain the status quo of the case pending before it on review." 798 S.W.2d 141, 143-144 (Ky. 1990) (citing Crady v. Cranfill,. 371 S.W.2d 640 (Ky. 1963)). In summary, BG sought none of the available remedies· that would have enabled it to avoid the immediate . . enforcement of the trial court's order and defer, at least temporarily, the conveyance of the property for what it regarded as an .improperly determined pnce. While not dispositive, the opinions of our predecessor Court in Rose v, Cox, 179 S.W.2d 871(Ky.1944), and Sedley V .. Louisville 'Trust Co., 419 s.w.2ci 531, 532 (Ky. 1967), are instructive even though they contain important factual differences. Those cases establish that when property is sold to a third party pursuant to a judicial sale ordered by the trial court, in the absence of a supersedeas bond or other stay of execution, a subsequent determination by an appellate court that the order directing the sale was erroneous does not void the sale. "Where the court has jurisdiction qf the parties and the subject matter of the suit, and has statutory authority to decree the sale, a subsequent reversal of the judgment decreeing the sale is a mere declaration that the judgment is erroneous, but does not render it void." Rose, 179 S.W.2d at 872. "The fact that the judgment ordering the sale ·of the property was not superseded prevents us from granting [the Appellant] the relief to which she is allegedly entitled" and the case is thereby moot. Sedley, 419 S.W.2d at 533. Obviously, the instant case does not involve a sale to a third party. However, upon review of authority from other jurisdictions that have more 11 precisely addressed the issue before us, we are persuaded that the same result· . ' . . . is compelled under the circumstances that confront us. here. For .example, in Dahlin v. Amoco Oil Corp., 567 N.E.2d 806 (Irid. App. 1991), the Dahlins leased a parcel of land to Amoco Oil. The lease also gave Amoco the option to purchase the property tinder certain conditions. Amoco exercised its option to ·purchase the Dahlins' land. Wheri the Dahlins refused. to convey the land, Amoco filed an action for specific per.formance; The Dahlins counterdaimed for breach of contract and unjust enrichment. The trial court granted surrimary judgment for Amoco on its specific performance claim; thereafter, the Pahlins sold the real estate to Amoco. Addressing the Dahlins' argument on appeal that the trial court erred by granting summary judgment on Amoco's specific performance claim, the Indiana Court of Appeals stated as follows: If a party to a judgment voluntarily acquiesces in or recognizes the validity of such judgment or otherwise takes a position which would be inconsistent with any theozy other than the validity of the judgment, he has impliedly waived his right to contest the validitY of the judgment on appeal. Id. at 809. The Dahlins' conveyance of the property· to Amoco was inconsistent with their appellate positic~n that the order compelling specific performance was erroneous. "By electing instead to sell the property, they have waived th.eir right to argue on appeal that the specific performance decree was invalid and unenforceable, and therefore their appeal on this issue is moot." Id. at 810. 12 . . Siniilarly,.in Schuppener v. Bruno, 395 So.2d 1234 (Fla. Dist. App. 1981), ·the contractual purchasers of land. sued for and obtained a judgment ordering_ . specific performance of the contract directing the sale of the prope~ty. The sellers appealed, but while the .appeal' was pending, th.e sellers a~cepted the . purchase price and recorded the purchaser's mortgage on the ·property in question. The Florida court held that "[u]nder these circl.imstances, the issues · in [this] appeal ... appear to u.s to be moot." Id. at 1235. ·our review of the unusual circum~tances of this case i~ also guided and influenced by the strong principles oflaw that accord a measure of sanctity to the language of deeds and other written and recorded instruments of title. "As . . . the deed was acknowledged and lodged for record the day it bears date, it was constructive notice to the whole world in whom th~ legal title was vested.'' Ott . .v. . . Ott's Administrator, 2 Ky. Op. 114 (1867); 7 see Haven v...Wallace, 160 S.W.2d · 619, 622 (Ky. 1942) ("This deed was of record and constituted constructive notice to the world that appellant had retained this right _or reservation in and to.the rentals on the land."); Wells Fargo Financial Kentucky, Irie. v. Thomer, 315 S.W.3d 335, 338-339 (Ky. App. 2010) ("A recorded mortgage serves the· ' ".ptirpose of establishing the lender's "interest in the land that secures the debt and notice to the world of the lien created thereby."). ~ignificant legal consequences flow from the language used to convey interests in real property, 7 1867· WL 3569 at *1 (Ky. Nov. 21, 1867). and because the deed gives "notice to the world," its effects extend beyond the limited interests of the parties . . The words of the deed are so important that, upon its delivery and · acceptance, the deed "extinguishe~ or supersedes the provisions of the underlying contract for the conveyance of the realty.". ·Drees Co. v. Osburg, 144 S.W.3d 831, 832 (Ky. App. 2003) (citation omitted). Borden v. Litchford, 619 S.W.2d 715, 717 (Ky. App. 1981) reflects the nearly-universal principle that the "merger doctrine holds that all prior statements and agreements, both written and oral, are ·merged into the deed and the parties are bound by that. instrument." Subject to limited exceptions which are not applicable here, the acceptance of a deed tendered in performance of an agreement to convey merges the written or _oral agreement to convey in the deed, ~d, thereafter, the provisions. of the underlying contract governing the transfer of the property are extinguished and th·e deed regulates the rights and liabilities of the parties. 77 Am. Jut. 2d Vendor and Purchaser§ 227 (2017). As there is a presumption of merger upon the delivery and acceptance of the deed, contrary intentions of ·the parties must be clear and manifest and may be shown from the terms of the deed itself. See Vernon v. Vernon, 277 S.W·. 248, 248 (Ky. 1925) .. There is no doubt that the merger doctrine would control the· issue if BG had simply transferred the property pursuant to the _terms of the Option Agreement without the intervention of the circuit court order. We see no reason for departing from the doctrine when the transfer resulted from a court order enforcing the terms of the Option Agreement. In either case, any unresolved conditions ansing from the contract or the court order could be 14 preserved by incorporation into the deed. In that respect, it is significant that the circuit col'.lrt did not dictate the terms of the deed. Although at BG's · . request the· circuit court approved the form of the deed, BG prepared the deed . . . ' . . and completeiy controlled its terms and conditions. BG c~uld have .preserved · its objection to the consideration by referencing that fact, along with the pending litigation, in the deed. Iristead, the deed contains no limitation or reservationabout the consideration to be paid for the proper.ty; and it contains . no reference to the terms· of the option contract for est8:blishing the fair market value of the property. Most significantly, it incorporates no language to signify· that the transact1on is anything-other than,a completed, arm's length transaction between a willing buyer and willing seller for a mutually agreed~ .. . upon consideratiop. Consistent with the merger doctrine, all else outside of the four corners of the deed relating to the purchase price of the property was · mergedinto the deed. The Court of Appeals substantiaily based its deCision on Dreamers LLC v. Don's Lumber & Hardware, Inc., 366 S.W.3d 381 (Ky. 2011). We said in Dreamers: It has long been the law in Kentucky that 'a party .... does not need to post a supersedeas bond to take ari appeal from a · judgment,' though '[t]he failure to· post a bond ... leaves the party who obtained the judgment free to execute on it.'· Id: at 384 (quotingElkHqm Coal Corp. v. Cheyenne Resources, Inc., 163 S.W.3d 408, 419-420 (Ky. 2005)). We held that the judgment-debtor did not forfeit its right tQ ·appeal by paying the money to the plaintiff in lieu of posting a supersedeas bond ~r suffering an exe~ution on the judgment pending appeal. 15 BG contends that its compliance with the judgment compelling specific performance of tbe real estate option contract should be treated the same. BG's position is if it successfully established on . appeal that AEP was not . . entitled to specific performance of the. Option Agreement, then all that would· be . . required is another round of appraisals to determine the purchase price. That ·interpretation, however, is incorrect. It overlooks the fact that reversing the· order that ~ompelled specific performance of the Option Agreement must also invalidate the deed conveying title because the need to re-determine the purchase price also revives AEP's contractual right to decline the purchase if it dislikes the final price. Dreamers involved a monetary judgment; the res awarded by the judgment was a fungible sum of money. As to that res Dreamers holds that a defendant subject to an adverse money judgment may; instead of purchasing a supersedeas bond to cover the payment of his debt and avoid attachment or . garnishment of his property, as well as the accrual of expensive post-judgm.ent · interest, simply pay the judgment without forfeiting his right of appeal. Of course, by doing so·, the defendant accepts the risk that, upon reversal of the judgment, the. plaintiff may have disbursed the money and be unable to refund it. Either way, the parties are generally indifferent to the specific cash that funds the payment and re-payment; and in most situations, the exchange · ihvolves no tangible _money at all, b_ut simply checks or electronic transfers from one account to another. 16 In-contrast, however, here the res subject to the order compelling specific , performance is real estate. The res in dispute is not a fungible quantity of money; it is uniquely tangible land. Historically, ·laws governing the transfer and exchange of land differ fundamentally from the laws governing the exchange of cash or its electronic equivalent. See, for example, Baroi v. Platinum Condominium Development, LLC, 874 F. Supp. 2d, 980, 984 (Nev. Dist. 2012) (~Nevada will enforce contractual obligations through the remedy of specific performance where appropriate, partieularly in real estate transactions because real property is 'unique,' and damages therefore may be an inadequate remedy;"); In re Arnold and Baker Farms, 177 B.R. 648, 661 (Bankr. App. 9th Cir. 1994) ("each parcel of real property is unique"); Consolidated Rail Corp. v. Michigan, 976 F. Supp. 1085, 1089· (W.D. Mich. 1996) ("[I]nterferenc;e with the enjoyment or possessiOn of land is considered 'irreparable' since land is viewed as -a unique commodity for which monetary compensation is an inadequate substitute."). -The merger doctrine is itself an example of how the law applies . . . . . special precautions to the conveyance of land that ·are not . appli~~ble . . to the transfer of money. These differences are reason enough to_ distinguish the rule as stated in Dreamers from the situation before us iri this case. We further reject the notion implied by the Court of Appeals that requiring the posting of a supersedeas bo:r:id to stay a court-ordered conveyance of land would deprive a litigant of the right guaranteed by Section 115 of the 17 Kentucky Constitution to appeal from ari adverse judgment. s The prospective appellant in any case may pursue the constitutionally-mandated right to appeal without posting a supersedeas bond. The bond does not impinge upon the right of appeal; the bond, when posted by an appellant, stands as a collateral obligation, acknowledging the dignity of the judgment in recognition of the fact that the appellant is depriving the appellee _of the benefits of the judgment pending the finality of the appellate process.· · III. · CONCLUSION For the foregoing reasons, the opinion of the Court of Appeals is vacated~ BG's counterclaim and amended counterclaim asserted claims that a price adju~tment br~ach was warranted as a result of AEP's alleged primary and continuing . of the. Option Agreement, the allegedly faulty appraisal of CBRE, AEP's alleged failure to maintain the roof of the building, and AEP;s alleged· breach of the duty of good faith and fair dealing. We are satisfied that BG's faih.:tre to preserve its objections·· to the Circuit court's final order by superseding it with an appropriate bond or obtaining a stay of its enforcement, coupled with the completion of the transaction and the applicatiori of the merger doctrine, · precludes any further relief sought by BG. Accordingly, we remand this action s Kentucky Constitution Section 115 provides, in pertinent part:. "In ·all cases,· civil and criminal, there $hall be allowed as a matter of right at least one appeal to .another court . . ... " 18 to the, Warren Circuit Court with directions to dismiss the counterclaim, and· amended counterclaim .. · · · All sitting. All concur. . COUNSEL FOR APPELLANT: Glenn Alan Cohen Seiller Waterman, LLC Meidinger Tower, 22nd Floor 462 S. Fourth Street Louisville, KY 40202 Paul Joseph Hershberg Gray & White 713 E. Market Street · 2nd Floor Louisville~ KY 40202 . Jason Conti Foley & Lardner, LLP 500 Woodward Avenue, Suite 2700 Detroit, MI 48226 · .COUNSEL FOR APPELLEE: David W. Anderson · Michael Scott Vitale . English,, Lucas,:Priest & Owsley, LLP 1101 College Street P.O. Box 770 Bowling Green, KY 42102:-0770 19
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.
