Opinion
NO. 2013-CA-000491-MR NO. 2013-CA-000590-MR
05-22-2015
JAMES BRIM, JR. APPELLANT/CROSS-APPELLEE v. AVONTI GARRETT APPELLEE/CROSS-APPELLANT
BRIEF FOR APPELLANT/CROSS-APPELLEE: C. Thomas Hectus Louisville, Kentucky BRIEF FOR APPELLEE/CROSS-APPELLANT: Robert W. DeWees III Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL AND CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE FREDERIC COWAN, JUDGE
ACTION NO. 09-CI-010370
OPINION
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
BEFORE: CLAYTON, COMBS, AND STUMBO, JUDGES. CLAYTON, JUDGE: This is an appeal and cross-appeal from decisions of the Jefferson Circuit Court, Division Thirteen. The trial court denied the Appellant, James Brim, Jr.'s, Mechanics Lien due to lack of jurisdiction and Cross-Appellant, Avonti Garrett's, request for back rent. Based upon the following, we affirm in part and reverse in part the decisions of the trial court.
BACKGROUND SUMMARY
Brim entered into an oral lease agreement with Garrett's husband, Stephen, to rent a portion of the space at a warehouse located at 4008-4010 E. Indian Trail in Louisville, Kentucky. The lease began in February of 2008 for $900 per month. For this, Brim could operate an automotive garage on the premises. There is evidence that Brim and Stephen also entered into an agreement where Brim would make improvements to an area of the warehouse for the purpose of opening a sports bar. Brim asserted that this would eventually lead to him and Stephen splitting the profits of the sports bar once it became operational.
Stephen passed away on February 25, 2008. Brim and Stephen's agreement was not of interest to Garrett, Stephen's widow. Brim did not continue to pay the $900 per month on his lease of the property and on April 9, 2009, Garrett filed a forcible detainer action against him. The forcible detainer was entered, but was subsequently set aside. Garrett then filed a second Petition for Writ of Forcible Detainer on July 18, 2008. Judgment granting the Forcible Detainer was entered on August 6, 2008, and Brim was no longer allowed access to the premises.
Brim filed a Proof of Claim against the estate of Stephen Garrett seeking to be recompensed for the amounts he had spent on the warehouse space, $291,356.74. This Proof of Claim was dismissed by the probate court and Brim then filed an original action to enforce a Mechanic's Lien against Avonti Garrett in Jefferson Circuit Court.
The trial court granted Garrett summary judgment on the Mechanic's Lien, finding that the lien had not been filed within sixty days of the denial of the proof of claim as statutorily required. The trial court also entered Findings of Fact and Conclusions of Law regarding the suit filed by Garrett for rents she asserted Brim had not paid. The trial court made the following judgment on that issue:
The Court finds as a matter of law that Brim is entitled to set off this amount of improvements against the total rent due. Cf., Howard v. Newton, 294 Ky. 547, 172 S.W. 2d 33 (Ky. App. 1943). Accordingly, since Brim owes Avonti Garrett $4,600 in rent but he has made $5,000 or more worth of improvements, Garrett, though entitled to judgment against Brim, is not entitled to recover any damages. She is entitled to her costs, however, if any.Findings of Fact and Conclusions of Law and Judgment at p. 3.
Brim filed an appeal on the issue of the Mechanic's Lien and Garrett filed a cross-appeal on the Findings of Fact and Conclusions entered by the trial court regarding her action for rents due.
DISCUSSION
We first note that the proper parties are before the court. Brim argues that the trial court erred in finding that he was required to file an action in circuit court pursuant to Kentucky Revised Statutes (KRS) 396.055(1) within sixty days of the disallowance of his Proof of Claim in probate court. The trial court granted the Appellee's Motion for Summary Judgment. In reviewing the granting of summary judgment by the trial court, an appellate court must determine whether the trial court correctly found "that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Kentucky Rules of Civil Procedure (CR) 56.03.
"[A] trial court must view the evidence in the light most favorable to the nonmoving party, and summary judgment should be granted only [when] it appears impossible that the nonmoving party will be able to produce evidence at trial warranting a judgment in his favor. [While] [t]he moving party bears the initial burden of [proving] that no genuine issue of material fact exists, . . . the burden shifts to the party opposing summary judgment to present 'at least some affirmative evidence showing that there is a genuine issue of material fact for trial.'" Community Trust Bancorp, Inc. v. Mussetter, 242 S.W.3d 690, 692 (Ky. App. 2007).
Since summary judgment deals only with legal questions as there are no genuine issues of material fact, we need not defer to the trial court's decision and must review the issue de novo. Lewis v. B&R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001).
KRS 376.010 provides that:
Any person who performs labor or furnishes materials, for the erection, altering, or repairing of a house or other structure ... or for the improvement in any manner of real
property ... by contract with, or by the written consent of, the owner, contractor, subcontractor, architect, or authorized agent, shall have a lien thereon, and upon the land upon which the improvements were made or on any interest the owner has therein, to secure the amount thereof with interest as provided in KRS 360.040 and costs.
Brim argues that his action in circuit court was seeking enforcement of his lien not against the Estate of Stephen Garrett, but to enforce it against the property owned by Avonti Garrett. Garrett owned this property jointly with right of survivorship with her spouse. Therefore this property passed outside of the probate court.
KRS 396.055(1) provides that:
Every claim which is disallowed in whole or in part by the personal representative is barred so far as not allowed unless the claimant commences an action against the personal representative not later than sixty (60) days after the mailing of the notice of disallowance or partial allowance if the notice warns the claimant of the impending bar.
In this action, the trial court erred in finding that the mechanic's lien could not be brought as a new action in circuit court once it was disallowed in the probate court. KRS 396.135 provides that the section "shall not be construed to prevent the enforcement of ...liens upon real or personal property in an appropriate proceeding." The action against Garrett in circuit court is not an action against her as the personal representative of the Estate of Stephen Garrett. Instead, it is an action against Avonti Garrett, thus, the trial court erred in granting Avonti Garrett's motion for summary judgment. We remand this action to the trial court for consideration of the mechanics lien.
We now deal with the cross-appeal filed by Garrett. The cross-appeal first argues that the trial court erred by relying on inadmissible hearsay evidence. She asserts that the trial court relied on evidence set forth in affidavits and that she was never allowed to cross-examine the witnesses. The record does not reflect that Garrett made any objection to the admission of the affidavits. The trial court, however, did not award Brim the $191,000 in improvements he had allegedly made based upon the affidavits. Instead, the trial court used receipts, affidavits and testimony to determine the amounts of the improvements. CR 52.01 provides that "[f]indings of fact, shall not be set aside unless clearly erroneous, and due regard shall be given the opportunity of the trial court to judge the credibility of the witnesses." A judgment is not "clearly erroneous" if it is "supported by substantial evidence." Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998). Substantial evidence is "evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men." Id. Kentucky State Racing Comm'n v. Fuller, 481 S.W.2d 298, 308 (Ky. 1972). We do not find that the trial court abused its discretion in this regard.
Garrett next contends that the trial court erred in determining that Garrett would be unjustly enriched by the alleged improvements. In this case, the trial court was presented with substantial evidence indicating there was an agreement between Stephen Garrett and Brim regarding the changing of the space into a sports bar. Thus, the trial court's use of the amount of improvements to set off the rents was not in error. However, the amount of the mechanics lien may be affected by this setoff and the court should take that into consideration in any future rulings.
We, therefore, affirm in part and reverse in part, and remand the decision of the trial court.
ALL CONCUR. BRIEF FOR APPELLANT/CROSS-
APPELLEE:
C. Thomas Hectus
Louisville, Kentucky
BRIEF FOR APPELLEE/CROSS-
APPELLANT:
Robert W. DeWees III
Louisville, Kentucky