Opinion
NO. 2009-CA-001970-MR NO. 2009-CA-002181-MR
02-01-2013
DWYER CONCRETE LIFTING OF LEXINGTON, INC. APPELLANT v. ALCHEMY ENGINEERING, INC. APPELLEE AND DWYER CONCRETE LIFTING OF LEXINGTON, INC. APPELLANT v. GARY OUSLEY AND ALCHEMY ENGINEERING, INC. APPELLEESS
BRIEFS FOR APPELLANT: Lee A. Smith Prestonsburg, Kentucky BRIEFS FOR APPELLEES: Robert J. Patton Prestonsburg, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FLOYD CIRCUIT COURT
HONORABLE JOHN DAVID CAUDILL, JUDGE
ACTION NOS. 06-CI-00116 AND 07-CI-01164
APPEAL FROM FLOYD CIRCUIT COURT
HONORABLE JOHN DAVID CAUDILL, JUDGE
ACTION NOS. 06-CI-00116
OPINION
DISMISSING, IN PART AND AFFIRMING, IN PART
BEFORE: CAPERTON, DIXON AND TAYLOR, JUDGES. DIXON, JUDGE: On February 1, 2006, Gregory and Karen Stumbo filed a complaint in the Floyd Circuit Court against Bizzack, Inc., alleging that Bizzack's blasting-related activities had caused damage to their home. Thereafter, on October 17, 2007, the Stumbos filed a complaint against Alchemy Engineering and Dwyer Concrete Lifting of Kentucky asserting various causes of action also related to the structural damage to their home. Alchemy is the engineering firm that initially consulted with the Stumbos concerning the suitability of their building site. Dwyer repaired the home following damages from the blasting. The Floyd Circuit Court consolidated both actions.
The parties conducted discovery for the next seventeen months, after which Alchemy filed a motion for summary judgment on the grounds that there was no evidence of negligence on its part. Interestingly, only Bizzack and Dwyer opposed Alchemy's motion. In addition to its memorandum in opposition of summary judgment, Dwyer also filed a CR 56.06 request for additional discovery. Following a hearing in September 2009, the trial court entered an order granting Alchemy's motion and dismissed it as a party. Thereafter, on September 28, 2009, Dwyer sought leave to file a cross-claim against Bizzack as well as a cross-claim or third-party claim against Alchemy and a third-party claim against Alchemy's principal, Gary Ousley. Dwyer also filed a motion to vacate the summary judgment in favor of Alchemy. The trial court's order denying Dwyer's motion to vacate was entered on October 13, 2009, and an order denying Dwyer's motion for leave to file a cross-claim or third party complaint against Alchemy and Ousley was entered on October 21, 2009. Dwyer thereafter appealed both orders to this Court.
Dwyer was granted leave to file a cross-claim against Bizzack.
On May 29, 2012, Alchemy filed a motion in this Court to dismiss Dwyer's appeal of the trial court's summary judgment, arguing that Dwyer does not have standing. By order of this Court dated September 5, 2012, Alchemy's motion was passed to the panel considering the merits of the appeal. As such, we will address that motion first.
2009-CA-001970.
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After reviewing the record, we are of the opinion that the decision of this Court in Jenkins v. Best, 250 S.W.3d 680 (Ky. App. 2007), is dispositive and requires dismissal of Dwyer's appeal of the trial court's summary judgment. In Jenkins, the plaintiff, Marilyn Jenkins, filed a medical malpractice action against a hospital, her obstetrician, a perinatologist, and the perinatologist's employer for damages associated with the birth of her child. Following discovery, the trial court granted summary judgment in favor of the perinatologist and her employer. Jenkins, the obstetrician and hospital thereafter appealed to this Court.
On appeal, the issue in Jenkins, as it is herein, was whether a co-defendant has the right or standing to appeal the dismissal of another co-defendant from the case. A panel of this Court began the analysis by reiterating that "[i]t is a universal rule that a joint tort-feasor . . . will not be heard to complain on appeal . . . that the suit was dismissed as to a co-defendant." Id. at 685 (Quoting Martin v. Ackman, 270 Ky. 640, 110 S.W.2d 437, 438 (1937)). In other words, "the defendant ha[s] no right to appeal his co-defendant's dismissal just to keep him in the damages pool." Jenkins, 250 S.W.3d at 686.
Nevertheless, the Jenkins Court questioned whether our Supreme Court's adoption of comparative negligence in Hilen v. Hays, 673 S.W.2d 713 (Ky. 1984), rendered obsolete the holding in Martin. Answering such in the negative, the Jenkins Court noted that while Hilen authorized an apportionment of fault between a plaintiff and a defendant, apportionment of fault among joint tort-feasors can be traced back to the nineteenth century. Jenkins, 250 S.W.3d at 686. Accordingly, the panel concluded that Hilen created no new right as to apportionment between joint tort-feasors and "does not give a party the right to apportion fault to persons whose liability has been judicially determined not to exist." Id. The Jenkins Court observed:
If we doubted our conclusion—on the theory that Hilen elevated the apportionment of fault between joint tort-feasors from a jury's option to a full-fledged right ofJenkins, 250 S.W.3d at 686-687.
a tort defendant—we would have been rescued by the legislature's enactment of KRS 411.182. That statute allows allocation of fault among "each claimant, defendant, third-party defendant, and person who has been released from liability" pursuant to "[a] release, covenant not to sue, or similar agreement entered into by a claimant and a person liable [.]" KRS 411.182(1), (4). Excluded from this list are two categories of persons: (1) those who were never named as defendants or third-party defendants, and (2) those who were once defendants or third-party defendants but were dismissed from the action because they were found not to be liable. Dr. Best and University Associates fall in this second category. Therefore, even if it could be argued that Hilen created this new right, KRS 411.182 took it away.
. . .
This is sound logic since a party who remains in an action has yet to be found faultless, and the party who settles has determined his degree of fault by agreement. The degree of fault of the party who is dismissed from the action on liability grounds has also been determined, but as a matter of law; his apportionment of liability under the statute is 0%.
Following the rationale of Jenkins, the claim that Alchemy was liable to the Stumbos was their claim to assert. When that claim was denied by the trial court's entry of summary judgment in favor of Alchemy, it was the Stumbos' right to appeal the decision. Dwyer, however, is no more entitled to appeal the trial court's denial of the Stumbos' claim against Alchemy than it would have been to file it in circuit court in the first place. Because we conclude that Dwyer has no standing or right to appeal the trial court's entry of summary judgment in favor of Alchemy, its appeal in 2009-CA-001970 must be dismissed.
In 2009-CA-002181, Dwyer appeals the trial court's denial of its motion to file a cross-claim or third-party claim against Alchemy, as well as a third-party claim against Alchemy's principal, Gary Ousley. Dwyer argues that Alchemy's successful motion for summary judgment does not insulate it from a cross-claim or third party claim by Dwyer arising out of the damages to the Stumbo home. Dwyer points out that there is still much discovery that remains, and that there is significant evidence that, contrary to the summary judgment, Alchemy was partially responsible for the damages. Finally, Dwyer contends that because Ousley has previously not been a party to the action, the summary judgment is of no consequence with regard to his liability.
CR 13.07 governs cross-claims and provides:
A pleading may state as a cross-claim any claim by one party against a coparty arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross claimant for all or part of a claim asserted in the action against the cross claimant.Clearly, by its plain language, CR 13.07 refers to claims that exist between co-parties. However, Dwyer did not seek to file a cross-claim until after the trial court entered summary judgment in favor of Alchemy. At that point, Alchemy was no longer a party and not subject to a cross-claim. Dwyer has not cited this Court to any case law that would hold otherwise and we find none. Therefore, the trial court properly denied the motion to file a cross-claim against Alchemy.
Third-party claims are governed by CR 14.01, which provides in pertinent part that "[a] defendant may move for leave as a third-party plaintiff to assert a claim against a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him." Whether a third-party complaint may be filed is within the sound discretion of the trial court and is appropriate only in those cases where the proposed third-party defendant would be secondarily liable to the original defendant in the event the latter is found liable to the plaintiff. Phillips, Kramer and Burleigh, 6 Kentucky Practice Series Rules of Civil Procedure Rule § 14.01 (6th ed. 2012). "The critical characteristic of a claim under CR 14.01 is that the defendant is attempting to transfer to the third-party defendant the liability that the plaintiff is asserting against the defendant." Id., Comment 4. (Citing Wright & Miller, Federal Practice and Procedure (3d ed.) Civil § 1446 (2012)).
Since the decision in Hilen v. Hays and the subsequent enactment of the apportionment statute, KRS 411.182, Kentucky law now recognizes the importance of impleading a person as a third-party defendant for the purposes of contribution or indemnity. See Crime Fighters Patrol v. Hiles, 740 S.W.2d 936 (Ky. 1987). However, fatal to Dwyer's argument is the premise that "non-settling non parties" may not be included in an apportionment instruction under KRS 411.182 if they have been determined on the merits not to be liable for the plaintiff's claim. Jones v. Stern, 168 S.W.3d 419, 423 (Ky. App. 2005).
In granting Alchemy's motion for summary judgment, the trial court herein determined that there were no material facts in dispute and that, as a matter of law, Alchemy was not liable on the Stumbos' claims. We would note that although Dwyer references the hearing on the motion for summary judgment, no video record was certified to this Court for our review. Further, the judgment states nothing other than the motion is granted without any additional reasoning in support thereof. However, in the absence of any specificity we will presume that the trial court's threadbare order is based upon on the grounds asserted in Alchemy's summary judgment motion. See, e.g., Sword v. Scott, 293 Ky. 630, 169 S.W.2d 825, 827 (1943) ("In the absence of the court's specifying the ground or grounds for his dismissal of the petition, it will be assumed that it was upon any or all of the grounds which the proof sufficiently established.").
As the trial court ruled as a matter of law that Alchemy was not negligent, Dwyer cannot then bring Alchemy back into the matter on the same premise under the guise of a third-party claim. If Alchemy played no part in the actions that resulted in damages to the Stumbo home, then it simply cannot be liable to Dwyer for the same. Furthermore, Dwyer has failed to demonstrate that Ousley, as the principal of Alchemy, could be independently liable when Alchemy itself was held not to be. Under the circumstances herein, we are of the opinion that the trial court properly denied Dwyer's motion to file third-party claims against Dwyer and Ousley.
For the reasons set forth herein, the appeal in 2009-CA-001970 is dismissed. Further, in 2009-CA-002181, the Floyd Circuit Court's order denying Dwyer's request for leave to file a cross-claim or third-party claim against Alchemy and a third-party claim against Ousley is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Lee A. Smith
Prestonsburg, Kentucky
BRIEFS FOR APPELLEES: Robert J. Patton
Prestonsburg, Kentucky