Opinion
NO. 2011-CA-001509-MR
04-19-2013
ALMA HALL APPELLANT v. LAUREN COHEN APPELLEE
BRIEF FOR APPELLANT: Matthew J. Baker Bowling Green, Kentucky BRIEF FOR APPELLEE: Jason C. Hayes Bowling Green, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE STEVE ALAN WILSON, JUDGE
ACTION NO. 08-CI-01470
OPINION
AFFIRMING
BEFORE: CLAYTON, STUMBO, AND NICKELL, JUDGES. CLAYTON, JUDGE: This is an appeal from a dispute involving a landlord and her tenant. Based upon the following we will affirm the jury verdict.
BACKGROUND INFORMATION
Appellant, Alma Hall, is the owner of retail space at 422 East Main Street in Bowling Green, Kentucky. Appellee, Lauren Cohen, leased the space from Hall for a retail establishment she owned named "Bloom." The two entered into a lease agreement on February 1, 2005, with rent due on the first day of each month.
In July of 2008, Cohen did not pay the rent due on the first day of the month. Instead, Hall asserts that she wrote the check on July 3 and did not mail it until July 5. Sometime between July 1 and July 5, Hall removed Cohen's merchandise from the leased premises and sold them. On August 13, 2008, Cohen filed an action in the Warren Circuit Court against Hall seeking damages for the goods which she took. Hall states that she sold the property and placed the proceeds of approximately $7,000.00 into a separate holding account.
Cohen then brought an action pursuant to Kentucky Revised Statutes (KRS) 383.020 for damages based upon Hall's taking of her property. After a jury trial, Cohen was awarded damages based upon the unlawful taking. Hall then brought this appeal.
STANDARD OF REVIEW
When reviewing issues of evidentiary rulings made by the trial court, we review for abuse of discretion. Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Goodyear Tire and Rubber Co. v. Thompson, 11 S.W. 3d 575, 581 (Ky. 2000).
DISCUSSION
Hall first contends that the trial court erred in excluding her testimony concerning her notification by the Department of Revenue of the closure of Cohen's business and the instructions provided to her by the Department of Revenue; the judgment and injunction of the Franklin Circuit Court which prohibited Cohen from doing business and otherwise closed her operation; a copy of the sign that was placed on the front door of Cohen's business by the Department of Revenue noting the closure and injunction put in place by the Franklin Circuit Court; that history text from the Department of Revenue documenting its conversations with Hall; and all of the circumstances regarding the events leading up to Hall's cleaning out the store and re-letting the premises.
Hall's contention that the trial court erred in not allowing her to testify regarding a Revenue Department worker's alleged conversation with her is clearly not in error as it was hearsay. Kentucky Rule of Evidence (KRE) 802(c) provides that hearsay "is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence of the truth of the matter asserted." The worker to whom Hall attributed this conversation was not available during the trial to testify regarding any aspect of the investigation, including the value of the property taken by Hall. Thus, her testimony regarding his conversation would have been hearsay. The trial court did not err in excluding it.
Next, Hall contends that the trial court erred in excluding evidence of the judgment and injunction of the Franklin Circuit Court which prohibited Cohen from doing business and otherwise closed her operation and a copy of the sign that was placed on the front door of Cohen's business by the Department of Revenue noting the closure and injunction put in place by the Franklin Circuit Court. Clearly, these have no relevance to a suit brought based in conversion. KRE 401 provides that "'[r]elevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."
The above evidence would not have proven anything regarding the fact that Cohen's rent was due on the premises and when she paid it. Whether her business closed or not does not have any relevance either. Thus, we affirm the evidentiary rulings the trial court made in this case.
Next, Hall contends that the trial court erred in allowing Cohen to receive the full retail value of the converted items rather than the wholesale value. KRS 383.020(2) provides that:
If property is distrained for any rent not due, or attached for any rent not due or accruing, or taken under any attachment sued out without good cause, the owner of the property may, in an action against the party suing out the warrant of distress or the attachment, recover double damages for the wrongful seizure, and if the property is sold, for double the value thereof.The statute does not set forth whether the "value" of the property is the fair market value or the wholesale value. Both parties agree that the laws of conversion should apply to the present situation. As set forth in State Auto. Mut. Ins. Co. v. Chrysler Credit Corp., 792 S.W. 2d 626, 627 (Ky. App. 1990), the measure of damages in a conversion case is the fair market value of the property at the time of the conversion. "Fair market value" is the price that a willing seller will take and a willing buyer will pay for the property. Central Kentucky Drying Co., Inc. v. Commonwealth, 858 S.W. 2d 165 (Ky. 1993).
In this case, Cohen owned a business which sold her goods for retail prices. Hall entered her premises and took her goods without her permission and for no legal reason and sold them. We find the trial court was correct in applying the retail value of the goods as the measure of damages.
Next, Hall contends that Cohen waived her claim for punitive damages when she voluntarily withdrew her claim prior to trial. Hall is confusing punitive damages with the statutory damages set forth in KRS 383.020(2). As provided above, double the cost of the goods is allowed under that statutory section. Thus, no punitive damages were allowed and the trial court correctly doubled the damage award under KRS 383.020(2).
Hall also contends that this award of damages should have been done by the jury rather than the court. We believe that statute sets forth that the award be for double the value and once the jury has made a determination of liability and given an award of damages based on the fair market value, it may be doubled by the trial court.
Finally, Hall asserts that Cohen should be barred from civil recovery when her retail establishment had been ordered closed by a separate order from a court of competent jurisdiction for the failure or refusal to pay and remit taxes. We do not believe that there is any merit or logic in Hall's argument on this issue. The fact that an agency had ordered the establishment closed does not give a third party a right to enter the premises and take goods from it and then sell them for their own profit.
Accordingly, we affirm.
ALL CONCUR. BRIEF FOR APPELLANT: Matthew J. Baker
Bowling Green, Kentucky
BRIEF FOR APPELLEE: Jason C. Hayes
Bowling Green, Kentucky