Opinion
NO. 2019-CA-000301-MR
01-24-2020
DELORES MONTGOMERY APPELLANT v. BILLY MAINES AND REBECCA MAINES APPELLEES
BRIEFS FOR APPELLANT: Justin S. Peterson Kellie M. Collins Lexington, Kentucky BRIEF FOR APPELLEES: Daniel E. Murner Elizabeth Winchell Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 16-CI-04117 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND GOODWINE, JUDGES. DIXON, JUDGE: Delores Montgomery appeals the order of the Fayette Circuit Court entered on January 29, 2019, granting Billy Maines and Rebecca Maines summary judgment. After careful review of the record, briefs, and law, we affirm.
On November 13, 2015, Montgomery rented a home from the Maineses. Prior to renting the home, Rebecca and Montgomery walked through the home together. On another occasion, Rebecca gave Montgomery and her daughter a full tour of the home. During each encounter, Rebecca showed both levels of the home to Montgomery, and used the stairs and its railing without issue or incident. Rebecca did not observe that the stair railing was loose, nor had she had any complaints about the condition of the stair railing from prior tenants.
Montgomery was in the home on several occasions, moving her things into the residence. In early December, just after moving in, Montgomery lost her balance as she descended the stairs. When she grabbed the stair rail, it shifted, and Montgomery fell to the bottom of the stairs, breaking both of her ankles.
On November 8, 2016, Montgomery brought the suit herein. Discovery, including pertinent depositions, was conducted. In January 2019, the Maineses moved the trial court for summary judgment asserting "there is no issue of law or fact upon which Plaintiff can rely to prevail in this case." Montgomery responded, contending "there still remain genuine issues of material fact as to Ms. Maines' and/or her employees' knowledge concerning the loose railing." After a hearing, the trial court granted summary judgment in favor of the Maineses "as there is no evidence that Defendants had knowledge of any latent defects on the property[.]" This appeal followed.
As an initial matter, in contravention of CR 76.12(4)(c)(v), the Maineses fail to state how they preserved any of their arguments in the trial court.
Kentucky Rules of Civil Procedure.
CR 76.12(4)(c)[(v)] in providing that an appellate brief's contents must contain at the beginning of each argument a reference to the record showing whether the issue was preserved for review and in what manner emphasizes the importance of the firmly established rule that the trial court should first be given the opportunity to rule on questions before they are available for appellate review. It is only to avert a manifest injustice that this court will entertain an argument not presented to the trial court.Elwell v. Stone, 799 S.W.2d 46, 48 (Ky. App. 1990) (citations omitted). We require a statement of preservation
so that we, the reviewing Court, can be confident the issue was properly presented to the trial court and therefore, is appropriate for our consideration. It also has a bearing on whether we employ the recognized standard of review, or in the case of an unpreserved error, whether palpable error review is being requested and may be granted.Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012). Neither of the Maineses' briefs contains a statement of preservation for any issue raised.
We have three options: "(1) to ignore the deficiency and proceed with the review; (2) to strike the brief or its offending portions, CR 76.12(8)(a); or (3) to review the issues raised in the brief for manifest injustice only, Elwell v. Stone, 799 S.W.2d 46, 47 (Ky. App. 1990)." Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010). Because these errors were made by counsel, we will not punish the Maineses. We will review the alleged deficiencies as best we can, but warn counsel the Court may not be so lenient in the future.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56.03. An appellate court's role in reviewing a summary judgment is to determine whether the trial court erred in finding no genuine issue of material fact exists and the moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). A grant of summary judgment is reviewed de novo because factual findings are not at issue. Pinkston v. Audubon Area Community Services, Inc., 210 S.W.3d 188, 189 (Ky. App. 2006) (citing Blevins v. Moran, 12 S.W.3d 698, 700 (Ky. App. 2000)).
It is well-established that a party responding to a properly supported summary judgment motion cannot merely rest on the allegations in his pleadings. Continental Casualty Co. v. Belknap Hardware & Mfg. Co., 281 S.W.2d 914, 916 (Ky. 1955). "[S]peculation and supposition are insufficient to justify a submission of a case to the jury, and . . . the question should be taken from the jury when the evidence is so unsatisfactory as to require a resort to surmise and speculation." O'Bryan v. Cave, 202 S.W.3d 585, 588 (Ky. 2006) (citation omitted). "[T]he proper function of summary judgment is to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991).
The law concerning landlord liability in Kentucky is also well-settled:
"[A] landlord has a duty to disclose a known defective condition which is unknown to the tenant and not discoverable through reasonable inspection." Milby v. Mears, [580 S.W.2d 724, 728 (Ky. App. 1979)]. However, "[i]t has been a longstanding rule in Kentucky that a tenant takes the premises as he finds them. The landlord need not exercise even ordinary care to furnish reasonably safe premises, and he is not generally liable for injuries caused by defects therein." Milby at 728. "[T]he landlord is under no implied obligation to repair the demised premises in the absence of a contract to that effect, nor is he responsible to a tenant for injuries to persons or property caused by defects therein, where there has been no reservation on the part of the landlord of any portion of the rented premises. In such cases the law applies to the contract or lease the doctrine of caveat emptor." Home Realty Co. v. Carius, 189 Ky. 228, 224 S.W. 751 (1920). Where the tenant is put in complete and unrestricted possession and control of the premises, as here, the landlord is liable only for the failure to disclose known latent defects at the time the tenant leases the premises. Carver v. Howard, [280 S.W.2d 708, 711 (Ky. 1955)].Lambert v. Franklin Real Estate Co., 37 S.W.3d 770, 775-76 (Ky. App. 2000).
On appeal, Montgomery first argues that the applicable standard of care should move from the one accepted within our Commonwealth of caveat lessee to another accepted in other jurisdictions of duty of reasonable care. However, we are bound to follow our Supreme Court's established precedent. "The Court of Appeals is bound by and shall follow applicable precedents established in the opinions of the Supreme Court and its predecessor court." SCR 1.030(8)(a). As caveat lessee remains the law in Kentucky, we are bound to follow it. None of the arguments Montgomery presents requesting our departure from this precedent compels us to render a decision inconsistent with this precedent.
Rules of the Supreme Court. --------
Montgomery next argues that summary judgment was inappropriate even under the existing standard of care of caveat lessee. As previously quoted, under Kentucky law, "a landlord has a duty to disclose a known defective condition which is unknown to the tenant and not discoverable through reasonable inspection." Milby, 580 S.W.2d at 728 (emphasis added).
There is no evidence that the Maineses knew of any defect with the stair railing prior to Montgomery's fall. Montgomery calls into question the testimony of Junior Mendoza, the Maineses' "handyman." However, nothing in Mendoza's testimony indicates that either he or the Maineses were aware of any defect with the stair railing at Montgomery's residence prior to her fall. Montgomery recorded a conversation with Mendoza after her fall in which Mendoza told Montgomery he had dealt with a loose stair railing before. However, Mendoza's deposition testimony provides the context for Mendoza's admission; Mendoza testified he had encountered and repaired loose stair railings in other houses. This testimony does not evince that Mendoza or the Maineses knew of a defect with the stair railing in the residence rented to Montgomery. Montgomery's tortured interpretation of Mendoza's testimony in which she attempts to extrapolate that Mendoza had repaired the stair rail in her residence before her fall—when he denied any memory of having done so in his deposition testimony—amounts to nothing more than speculation and supposition, which are insufficient to justify submission of a case to the jury. O'Bryan, 202 S.W.3d at 588. Therefore, it is impossible, as a matter of law, for Montgomery to establish that the Maineses breached their duty owed to her as her landlords for their failure to disclose such a defect.
Therefore, and for the foregoing reasons, the order entered by the Fayette Circuit Court is AFFIRMED.
ALL CONCUR. BRIEFS FOR APPELLANT: Justin S. Peterson
Kellie M. Collins
Lexington, Kentucky BRIEF FOR APPELLEES: Daniel E. Murner
Elizabeth Winchell
Lexington, Kentucky