Opinion
NO. 2014-CA-000552-MR
05-01-2015
LYNN BERRY APPELLANT v. PAT RYAN APPELLEE
BRIEF FOR APPELLANT: Will J. Walsh Louisville, Kentucky BRIEF FOR APPELLEE: Cynthia M. Crick Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE AUDRA J. ECKERLE, JUDGE
ACTION NO. 11-CI-007244
OPINION
AFFIRMING
BEFORE: COMBS, J. LAMBERT, AND STUMBO, JUDGES. COMBS, JUDGE: Lynn Berry appeals the order of the Jefferson Circuit Court which dismissed her lawsuit against Pat Ryan involving default on a lease for rental of commercial premises. After our review, we affirm.
In 2005, Lynn Berry and Onrea Flynn formed a limited liability corporation, First Choice Tax Service. On December 5, 2008, they entered into a lease with Ryan for the use of her commercial property as an office for First Choice.
Berry managed First Choice's business operations -- including paying the rent. Flynn provided the set-up capital. After he was reimbursed, Flynn periodically took "draws" from First Choice's account, but he did not participate in day-to-day operations of the business. Berry did not pay rent for the month of July of 2011. On July 5, Ryan posted a notice of default on the door. When Berry did not pay rent or vacate the premises, Ryan posted a notice of abandonment on July 13.
On July 18, Ryan sent a letter to Berry and Flynn notifying them that she changed the locks on the doors. She informed Berry and Flynn that they had thirty days to remove their personal property.
On July 21, counsel for both Berry and Ryan negotiated an arrangement for Berry to make an appointment to retrieve her belongings over the course of two days. On August 9, Berry's counsel contacted Ryan's counsel in order to schedule the appointment. At that time, Ryan's counsel advised that Flynn had contacted Ryan and was engaged in negotiations regarding the personal property.
The negotiations resulted in a release signed by Flynn and Ryan on August 11, 2011. In the release, Flynn abandoned the personal property left in the premises in exchange for Ryan's agreement not to seek to recover any money owed to her. Ryan and Flynn mutually agreed to release the other from liability for all claims that could be brought pursuant to the lease contract.
On November 7, 2011, Berry filed a complaint against Ryan alleging conversion of property, trespass to chattels, and unjust enrichment. She demanded return of her personal property as well as compensatory, consequential, and punitive damages. On December 2, 2011, Ryan filed her counterclaim seeking unpaid rent and compensation for unauthorized alterations made to the property by Berry.
The court conducted a bench trial on November 15, 2013. On January 16, 2014, the court entered its judgment. Although it believed that Berry did not have standing to bring the suit against Ryan, the court awarded one-month's rent to Ryan based on her counterclaim. Berry filed a motion to alter, amend, or vacate the judgment on January 27, 2014. The trial court denied the motion on February 27, 2014. This appeal by Berry followed.
We first note that both parties submitted deficient briefs. Kentucky Rule[s] of Civil Procedure (CR) 76.12(4)(c)(iv) requires the Statement of the Case to include "ample references to the specific pages of the record" or timestamp in the video record. In this case, both briefs made scanty references to the record. Furthermore, CR 76.12(4)(c)(v) requires ample "citations of authority to each issue of law" to be included in the Argument section. Berry's brief alludes only to one case, which did not have a citation to the Southwest Reporter. These omissions are substantial enough to merit striking the brief pursuant to CR 76.12(8)(a). Nonetheless, we have elected to address the singular issue which is the subject of Berry's appeal.
Kentucky Rule[s] of Civil Procedure (CR) 52.01 directs that in the case of a bench trial, an appellate court may not disturb the trial court's findings of fact unless they were clearly erroneous. Clear error is not committed as long as factual findings are supported by substantial evidence. God's Center Found. Inc. v. Lexington Fayette Urban County Gov't, 125 S.W.3d 295, 300 (Ky. App. 2002). "The test of substantiality of evidence is whether taken alone or in the light of all the evidence it has sufficient probative value to induce conviction in the minds of reasonable men." Williams v. Cumberland Valley Nat. Bank, 569 S.W.2d 711, 714 (Ky. App. 1978). (quoting Kentucky State Racing Comm. v. Fuller, 481 S.W.2d 298, 308 (Ky. 1972)).
Berry appeals from the judgment only as it relates to the award of unpaid rent for July 2011. She claims that the release both abolished her obligation to pay the rent and barred Ryan's counterclaim.
In support of her contention that the release abolished her obligation to pay July rent, Berry points us to Lewis v. Browning, 4 S.W.2d 734, 223 Ky. 771 (Ky. 1928). We have examined Lewis, and it holds that a release applies only to obligations which became due after execution of the release. Id. at 735. In this case, July rent was due before the release dated August 11. Therefore, Lewis does not support Berry's argument, and she has provided no other legal authority to persuade us that the release served to negate the obligation to pay July rent. We find no error.
Berry also contends that the release prohibited Ryan's counterclaim for the unpaid rent. We disagree.
A release from liability is governed by contract law. Grass v. Akins, 368 S.W.3d 150, 152 (Ky. App. 2012). It is well settled that when one party breaches a contract, the other party is no longer bound by its terms. Hall v. Rowe, 439 S.W.3d 183, 186-87 (Ky. App. 2014). In this case, the release included a promise by both parties to forebear from bringing claims against the other. Berry claims that the release applied to her with respect to the July rent. By suing Ryan, Berry breached the contract, relieving Ryan from being bound by its terms and submitting herself to Ryan's counterclaim. Therefore, we cannot conclude that the trial court erred.
We affirm the Jefferson Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Will J. Walsh
Louisville, Kentucky
BRIEF FOR APPELLEE: Cynthia M. Crick
Louisville, Kentucky