Opinion
NO. 2018-CA-000968-MR
05-10-2019
GERHARD HILDEBRANDT AND YAYI CHANG (A/K/A YAYI HILDEBRANDT) APPELLANTS v. JENNIFER HUKILL; ELITE REALTY GROUP, LLC; THOMAS ADAMS; ADAMS MULTI-SERVICE, INC; CHRISTOPHER YOUNG; GINA YOUNG; JOHN CORBITT FRANKLIN; AND KY PUNCHLIST, LLC APPELLEES
BRIEFS FOR APPELLANTS: Gerhard Hildebrandt Yayi Chang Pro se Lexington, Kentucky BRIEF FOR APPELLEES THOMAS ADAMS AND ADAMS MULTI- SERVICE, INC.: Anne W. Miller Louisville, Kentucky BRIEF FOR APPELLEES JENNIFER HUKILL AND ELITE REALTY GROUP, LLC: Vincent J. Eiden Crestwood, Kentucky NO BRIEF FILED FOR APPELLEES JOHN CORBITT FRANKLIN AND KY PUNCHLIST, LLC NO BRIEF FILED FOR APPELLEES GINA YOUNG AND CHRISTOPHER YOUNG
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KIMBERLY N. BUNNELL, JUDGE
ACTION NO. 16-CI-01166 OPINION
AFFIRMING IN PART, DISMISSING IN PART, AND REMANDING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; JONES AND L. THOMPSON, JUDGES. JONES, JUDGE: Appellants, Yayi Chang (a/k/a Yayi Hildebrandt) and Gerhard Hildebrandt (collectively referred to as the "Hildebrandts"), bring this pro se appeal from an order of the Fayette Circuit Court granting summary judgment in favor of Jennifer Hukill and Elite Realty Group, LLC (collectively referred to as "Hukill") and an order granting partial summary judgment in favor of Thomas Adams and Adams Multi-Service, Inc. (collecting referred to as "Adams"). Following a review of the record and applicable law, we AFFIRM the trial court's grant of Hukill's motion for summary judgment, DISMISS the portion of the appeal concerning the order granting partial summary judgment in favor of Adams, and REMAND.
The Hildebrandts were represented by counsel before the trial court; they pursue this appeal pro se.
I. BACKGROUND
The Hildebrandts relocated from Salt Lake City, Utah, to Lexington, Kentucky, in mid-2015. In preparation for their move, the Hildebrandts retained the services of a realtor and viewed numerous homes. On April 19, 2015, Gerhard attended an open house at 413 Lakeshore Drive, which was owned by Gina and Christopher Young (the "Property"). The Property was an older home, with an estimated age of forty-six years in 2015. While touring the Property, Hukill, the Youngs' realtor, told Gerhard that a contractor had recently inspected the Property and informed her that the Property had "good bones." Hukill additionally informed Gerhard that the Property's second floor had recently been opened up and inspected, which inspection revealed no problems. The Hildebrandts quickly made an offer on the Property, which the Youngs accepted on April 20, 2015. The Hildebrandts and the Youngs executed a purchase contract that day.
Pursuant to the purchase contract, a complete inspection of the Property was to be performed within fifteen days of the date the contract was accepted. The Hildebrandts agreed that, within four days of the inspection, they would submit in writing a list of any repairs needed to bring the items inspected to standard operating condition. The purchase contract indicated that if the Hildebrandts and Youngs could not agree on what repairs should be made to the Property, the contract would be voidable at the option of either party
In early May of 2015, the Hildebrandts hired Adams to perform the inspection of the Property. Pursuant to the inspection agreement Adams gave to the Hildebrandts, Adams's inspection was to be visual only, and excluded "[d]eficiencies and defects which are latent, concealed, or not readily accessible." R. 551. On May 6, 2015, Adams gave the Hildebrandts a sixty-one-page report on his inspection (the "Inspection Report"), which revealed numerous issues with the Property. Among those issues, Adams noted that the floor plane on the second floor was uneven. Adams's report indicated that this seemed to be caused by a flaw in the floor framing and was probably not correctable. R. 531. The report specifically indicated that Adams had been unable to fully inspect certain areas of the Property, such as the basement and the Property's foundation condition, due to being blocked by the Youngs' storage of personal items. R. 537-38.
Because of the number of issues raised in the Inspection Report, the Hildebrandts contacted Hukill to request a contractor to come inspect the Property—specifically, to inspect the unevenness of the second floor. Hukill informed the Hildebrandts that a contractor would not be able to inspect the Property on the date that they had requested. The Hildebrandts then informed Hukill that unless a structural engineer inspected the Property, they would seek to be released from the purchase contract. On May 13, 2015, Hukill informed the Hildebrandts that the Youngs had agreed to pay for certain specified repairs to the Property and to have framers come inspect the second floor. Hukill's email additionally indicated that if the Hildebrandts wished to hire a structural engineer, that engineer would be permitted to inspect the Property.
Unless otherwise noted, any communication between the Hildebrandts and Hukill was done through the Hildebrandts' realtor.
Two days later, Hukill sent the Hildebrandts a letter from Pyramid Consulting Structural/Civil Engineers, Inc., the company selected by the Youngs to inspect the second floor of the Property. That letter stated that, following a visual inspection of the slope in the second floor, no signs of deficiencies in the floor framing support system had been observed. Based on that letter, in combination with the Youngs agreeing to cover the costs of repairs, the Hildebrandts determined to move forward with purchasing the Property. An addendum to the purchase contract was executed on May 16, 2015, by which the Youngs agreed to hire a contractor to make repairs according to a list the Hildebrandts had provided. Closing was scheduled for June 8, 2015.
On June 5, 2015, Yayi went to the Property to meet with a contractor the Hildebrandts had contacted to discuss a potential remodel of the Property. While waiting for the contractor to arrive, Yayi observed that the floor in the downstairs family room and the door frame above the patio door were sagging. When Yayi asked the contractor to take a look at those issues, he explained to her that the sagging was probably caused by insufficient support from the basement and an undersized header. The next day, the Hildebrandts requested that they be released from the purchase contract. Ms. Hukill informed the Hildebrandts that the Youngs would not authorize a release. Further, Ms. Hukill stated that she had already spoken with an attorney and that she and the Youngs would sue the Hildebrandts if closing did not occur.
The remodel was separate from any repairs the Hildebrandts felt needed to be done to the Property prior to closing.
After contacting an attorney and discussing the matter amongst themselves, the Hildebrandts decided to proceed with the closing. A final walkthrough took place on the morning of June 8, 2015. After that walkthrough, Gerhard signed, on his own behalf and as power of attorney for Yayi, a final walkthrough confirmation indicating that they had inspected the Property and accepted it in its present condition. R. 256. The Hildebrandts closed on the purchase contract without protest.
Thereafter, the Hildebrandts purported to discover numerous structural defects in the Property. In a letter sent to Adams dated July 19, 2015, the Hildebrandts indicated that these defects concerned sagging floors, ceilings, and doorways on both floors of the Property, as well as sagging joists in the basement, none of which Adams had noted in the Inspection Report. The Hildebrandts had Adams come back to the Property to observe the defects and recommend a contractor; however, they informed Adams shortly after he left the Property that they had already retained a contractor to address the issues. According to the Hildebrandts, that contractor uncovered a multitude of structural defects in the Property's foundation walls, roof construction, floor framing, and window and door openings.
On March 28, 2016, the Hildebrandts filed a complaint against Adams and Hukill. Therein, the Hildebrandts contended that Hukill had made numerous representations to them that the Property's structure was sound, which amounted to fraud. The Hildebrandts additionally contended that Hukill's threats of legal action in the event that the Hildebrandts did not follow through with the closing were unjustified and unwarranted in violation of KRS 324.160. The Hildebrandts brought breach of contract and negligence claims against Adams, based on his failure to uncover the extensive structural defects in the Property during his inspection. Essentially, the Hildebrandts argued that if Adams had conducted his inspection in a workmanlike manner, the Hildebrandts would have been informed of all structural defects in the Property and would not have purchased it.
The complaint additionally named the Youngs, John Corbitt Franklin, and Ky Punchlist, LLC. While those parties are named in this appeal, the orders from which the Hildebrandts appeal concern only Adams and Hukill. Accordingly, we confine our discussion only to the claims against Adams and Hukill.
Kentucky Revised Statutes.
On March 21, 2018, Hukill moved for summary judgment. In the memorandum accompanying her motion, Hukill contended that the Hildebrandts' fraud claim must fail because they had notice of all defects in the Property prior to closing. Specifically, Hukill noted that the Hildebrandts' home inspection had uncovered numerous defects and that Yayi had personally observed defects in the Property's flooring and door framing. Notice of these defects had caused the Hildebrandts to request to be released from the purchase contract twice; however, they had ultimately decided to follow through with purchasing the Property. Further, the Hildebrandts had declined the Youngs' offer to retain a structural engineer to come and inspect the Property. Hukill contended that, based on the Hildebrandts' notice of defects in the Property, they could not contend that they had relied on any statements she had made about the Property's structural integrity. As to the Hildebrandts' claim that she had violated KRS 324.160, Hukill argued that the proper forum for such complaints was before the Kentucky Real Estate Commission, not the Fayette Circuit Court.
Adams moved for summary judgment on April 9, 2018. Like Hukill, Adams argued that the Hildebrandts had notice of all the defects in the Property that formed the basis of their suit. Adams contended that he had conducted a thorough visual inspection of the Property. Pursuant to his contract with the Hildebrandts, that inspection had been performed in accordance with the American Society of Home Inspectors Standard of Practice. In addition to the Inspection Report's detailing numerous deficiencies in the Property, it had clearly stated that the inspection was to be visual only and had informed the Hildebrandts that there had been certain areas of the Property that Adams had been unable to inspect. Adams noted that the Inspection Report had put the Hildebrandts on sufficient notice to request to be released from the purchase contract and request that a structural engineer evaluate the Property. Further, Adams contended that events occurring subsequent to his inspection but before closing—specifically, a contractor informing Yayi that the sagging she observed in the floors indicated insufficient structural support—had put the Hildebrandts on further notice of potential defects and cut off any liability on his part.
The Hildebrandts responded to both motions for summary judgment on May 1, 2018. In response to Hukill's motion for summary judgment, the Hildebrandts noted that Hukill had informed Gerhard at the open house that the second floor of the Property had been opened up and examined by framers; however, Christopher Young's deposition testimony indicated that the floor had not been opened up and examined at any point while the Youngs owned the Property. Christopher had additionally denied ever telling Hukill that an examination of the floor had ever occurred. The Hildebrandts contended that Hukill could not argue that they had sufficient information to put them on notice of a problem with the floor when Hukill had made this blatant misrepresentation. Additionally, while Hukill had informed the Hildebrandts prior to closing that she had spoken with an attorney and that the Youngs planned on suing the Hildebrandts if they did not follow through with the closing, Hukill had admitted during her deposition that she had never discussed a suit against the Hildebrandts with an attorney. The Hildebrandts contended that the purpose and effect of Hukill's deception was to force them into closing. The Hildebrandts disputed Hukill's contention that the Fayette Circuit Court was not the proper forum for their KRS 324.160 claim. They contended that because Hukill's misrepresentations were clearly violations of KRS 324.160(4)(p) and (u), they were entitled to a civil judgment against her pursuant to KRS 446.070.
In their response to Adams's motion for summary judgment, the Hildebrandts argued that there was no proof that they were aware of all the problems with the Property and the significance of those problems prior to closing. They contended that Adams had assured them that the Property was in satisfactory condition, and that they had justifiably relied on those assurances. In support of this contention, the Hildebrandts noted that Adams had stated that the Property was in "good condition" over twenty-five times in the Inspection Report, and had attempted to explain the sloping second floor by stating the he believed the problem to be caused by a framing issue. The Hildebrandts additionally contended that there were numerous deficiencies in the Property that Adams had failed to identify. For example, Adams had overlooked numerous sagging windows and doors, had failed to mention sagging above the garage door, and had failed to advise the Hildebrandts that a window leak could indicate structural defects in the Property.
We have reviewed Adams's report in its entirety, and find this statement to be somewhat of a mischaracterization. While he does use the phrase "overall good condition" over twenty-five times, this is done in describing particular aspects of the Property. Adams does indicate that the overall structural condition of the Property "is good except as noted in the summary and structural sections of the report." The report notes that Adams's analysis was based on the Property's "age, type of construction and comparison of the condition of other similar type properties inspected."
Both Hukill and Adams filed replies in support of their respective motions for summary judgment on May 8, 2018. In her reply, Hukill noted that neither she, nor any of the other defendants, were structural engineers. Therefore, she contended that the Hildebrandts could not have justifiably relied on any statements she made concerning the Property's structure. She reiterated the fact that the Hildebrandts had been provided with, and declined, the opportunity to hire a structural engineer to more thoroughly examine the Property before closing. Hukill maintained her contention that the Hildebrandts were put on notice of all defects in the Property prior to closing and that they signed a statement that they accepted the Property in its current condition at closing, which precluded them from claiming fraud. As to the Hildebrandts' claim that Hukill's threat of litigation had coerced them into closing on the purchase contract, Hukill noted that the Hildebrandts had admitted that they spoke with an attorney after Hukill made that threat and before closing, indicating that the decision to go through with the closing had been of their own volition. Hukill argued that unless and until the Kentucky Real Estate Commission made a finding that she had violated KRS 324.160, the Hildebrandts could not bring a private claim based on an alleged violation of the statute. Hukill contended that allowing the Hildebrandts to proceed on that claim would be a violation of administrative due process.
In Adams's reply, he set out the standards that he followed when inspecting homes and writing reports on those inspections. Adams indicated that under the standards set forth by the American Society of Home Inspectors, a home inspection is clearly limited to a visual examination of a property's readily accessible systems and components. The standards further indicate that while an inspector must inspect structural components, there is no requirement that an inspector offer an opinion about the adequacy of the structural system. Additionally, inspectors are under no requirement to determine the condition of systems and components that are not readily accessible. Adams contended that it was the Hildebrandts' obligation to seek further professional opinions on any concerns that were noted in his report. He contended that it was irrelevant whether the Hildebrandts had notice of the extent of a potential defect, so long as they had notice that the potential defect was present.
The trial court held a hearing on the summary judgment motions on May 15, 2018. After hearing from all parties, the trial court found that the Hildebrandts clearly had notice that there were defects in the Property's flooring. The trial court noted that those defects were so obvious that the Hildebrandts twice requested to be released from the purchase contract. Additionally, the trial court found that the Inspection Report clearly stated that it did not attempt to identify whether the Property's structure complied to code. From the bench, the trial court partially granted Adams's motion for summary judgment as to all defects the Hildebrandts had notice of prior to closing, regardless of how they obtained that notice. The trial court noted that if the Hildebrandts identified defects that they could not have known about until after the closing, Adams may still be subject to the complaint. The trial court concluded that the Hildebrandts' notice of defects cut off any fraud claim they had against Hukill. Additionally, the trial court concluded that jurisdiction of the Hildebrandts' claim under KRS 324.160 was with the Kentucky Real Estate Commission.
On June 1, 2018, the trial court entered an order granting partial summary judgment in favor of Adams. An order granting Hukill's motion for summary judgment was entered on June 5, 2018.
The Hildebrandts appeal from both orders.
II. STANDARD OF REVIEW
"The standard of review on appeal when a trial court grants a motion for summary judgment is '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.'" Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001) (citing Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996); Palmer v. Int'l Ass'n of Machinists & Aerospace Workers, 882 S.W.2d 117, 120 (Ky. 1994); CR 56.03). "The trial court must view the evidence in the light most favorable to the nonmoving party, and summary judgment should be granted only if it appears impossible that the nonmoving party will be able to produce evidence at trial warranting a judgment in his favor." Id. (citing Steelvest v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480-82 (Ky. 1991)). The word "impossible" is meant "in a practical sense, not in an absolute sense." Id. (quoting Perkins v. Hausladen, 828 S.W.2d 652, 654 (Ky. 1992)). "The moving party bears the initial burden of showing that no genuine issue of material fact exists, and then 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.'" Id. (quoting Steelvest, 807 S.W.2d at 482). "Because summary judgment involves only legal questions and the existence of any disputed material issues of fact, an appellate court need not defer to the trial court's decision and will review the issue de novo." Id.
Kentucky Rules of Civil Procedure. --------
III. ANALYSIS
The Hildebrandts raise a multitude of issues on appeal. Generally, they contend that there remain a number of disputed issues of material fact, which makes summary judgment inappropriate. As to the claims the Hildebrandts brought against Hukill, they contend that the trial court erred as a matter of law in concluding that they had sufficient notice of defects in the Property to render their reliance on Hukill's misrepresentations unjustifiable and that the trial court erred in determining that it did not have jurisdiction to hear their KRS 324.160 claim. As for as the claims brought against Adams, the Hildebrandts contend that the effect of the trial court's order was to find that Adams had no duty to abide by his contract with the Hildebrandts and to hold the Hildebrandts to a higher standard than Adams.
A. Issues of Material Fact
The Hildebrandts first contend that there are numerous facts in dispute, which make summary judgment inappropriate. Specifically, the Hildebrandts dispute that they received legal advice from an attorney prior to closing; dispute that they had sufficient notice of structural defects in the Property; contend that they discovered the bulk of the defects in the Property after closing; dispute that they had a walkthrough with a contractor after executing the amendment to the purchase contract; and contend that there is a dispute as to whether they wanted to be released from the purchase contract the day before closing was scheduled.
The Hildebrandts are, of course, correct that disputed issues of material fact would make summary judgment inappropriate. We disagree with the Hildebrandts, however, that such a dispute exists in this case. The standard for summary judgment is not that there is no disputes as to any fact; it is that there is no dispute as to material facts. A material fact is one that "is significant or essential to the issue or matter at hand[,]" BLACK'S LAW DICTIONARY (10th ed. 2014), and has the power to alter the outcome of the case. See Absher v. Illinois Cent. R.R. Co., 371 S.W.2d 950, 953 (Ky. 1963). Additionally, Kentucky law is clear that "[t]he moving party bears the initial burden of showing that no genuine issue of material fact exists, and then 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.'" Lewis, 56 S.W.3d at 436 (quoting Steelvest, 807 S.W.2d at 482).
The "factual disputes" raised by the Hildebrandts all either concern immaterial matters or are simply not in dispute. There is no dispute between the parties that the Hildebrandts sought to be released from the purchase contract the day before closing was scheduled to occur. Hukill did argue that the facts indicated that the Hildebrandts remained interested in the Property despite their complaints; but she clearly acknowledged that they sought to be released from the purchase contract immediately prior to closing. The Hildebrandts dispute what effect their notice of defects in the Property should have had on them, but there is no dispute that they were put on notice of issues with the Property's flooring. The Hildebrandts' contentions concerning a "walkthrough" with a contractor and their conversation with an attorney go mainly to the phrasing used by the parties, which is immaterial. For purposes of its decision, the trial court considered only the fact that the Hildebrandts contacted an attorney and spoke to a contractor following Yayi noticing the sloping on the first floor of the Property. The Hildebrandts have never disputed that those events occurred. The Hildebrandts do not dispute that they had notice of some of the defects in the Property prior to closing. Further, we note that the Hildebrandts—at least as of the date of summary judgment—have yet to put forth any evidence demonstrating the substantial structural defects they allege they were made aware of after moving into the Property.
B. Claims Against Hukill
The Hildebrandts make numerous arguments as to why the trial court erred in granting Hukill's motion for summary judgment. Those arguments can be simplified as follows: the Hildebrandts justifiably relied on Hukill's statements about the Property's floor, which caused them to forego further investigation and ultimately purchase the Property; Hukill's misrepresentations about speaking with an attorney led the Hildebrandts to believe they were forced to purchase the Property; and that the trial court erred in concluding that it could not consider the Hildebrandts' claim under KRS 324.160.
To establish a claim of fraud, the party claiming to be harmed must establish six elements by clear and convincing evidence: (1) the defendant made a material misrepresentation; (2) which was false; (3) the defendant either knew the misrepresentation to be false or made it recklessly; (4) the defendant made the misrepresentation to induce the claimant to act upon it; (5) the claimant relied on the misrepresentation; and (6) the claimant was harmed. United Parcel Serv. Co. v. Rickert, 996 S.W.2d 464, 468 (Ky. 1999). Proof of fraud "may be developed by the character of the testimony, the coherency of the entire case as well as the documents, circumstances and facts presented." Id.
The sticking point throughout the underlying litigation is the Hildebrandts' reliance on any claim made by Hukill. One claiming fraud cannot merely assert that he or she relied on a misrepresentation and prevail; the claimant's reliance must be reasonable or justifiable. Flegles, Inc. v. TruServ Corp., 289 S.W.3d 544, 549 (Ky. 2009) (citing McHargue v. Fayette Coal & Feed Co., 283 S.W.2d 170 (Ky. 1955); RESTATEMENT (SECOND) OF TORTS § 537 (1977)). Reliance cannot be deemed reasonable when "minimal investigation would have revealed the truth, or when the plaintiff closes its eyes and passively accepts the contradictions that exist in the information available to it." 37 AM. JUR. 2D Fraud & Deceit § 231 (2019). While there is no requirement that a recipient of a fraudulent misrepresentation conduct an in-depth investigation into the truth of the representation, one claiming fraud "cannot recover if he blindly relies upon a misrepresentation the falsity of which would be patent to him if he had utilized his opportunity to make a cursory examination or investigation." RESTATEMENT (SECOND) OF TORTS § 541 cmt. a (1977). Courts will give "no relief to a complaining party where means of knowledge of the truth or falsity of the representations are at his hands. He will be presumed to have had knowledge." Mayo Arcade Corp. v. Bonded Floors, Co., 240 Ky. 212, 41 S.W.2d 1104, 1108 (1931).
The facts, even when construed in a light most favorable to the Hildebrandts, demonstrate that the Hildebrandts did not reasonably rely on Hukill's statement about the Property's floor. The Hildebrandts have acknowledged that they did not ask either Hukill or the Youngs for any information about the alleged floor inspection until weeks after they had closed on the purchase contract. They chose not to make this inquiry despite the fact that they were twice put on notice that there was an issue with the Property's flooring. The Inspection Report informed the Hildebrandts that the second floor was uneven. Adams indicated that he believed this was caused by an issue with the floor framing and that it was probably not correctable. R. 531. This is the first time the Hildebrandts were alerted that there was a possible issue with the flooring. In fact, the Hildebrandts were so alarmed by the defects in the Inspection Report that they requested to be released from the purchase contract and informed the Youngs that they would only follow through with purchasing the Property if requested repairs were made and a structural engineer examined the Property. The Hildebrandts asked neither Hukill nor the Youngs about the alleged examination of the floor at this time. They were permitted to hire a structural engineer to examine the floor; they chose not to do so. After the Hildebrandts entered into the amended purchase contract, Yayi personally observed sagging in the Property's floors and doorframes. When she brought this sagging to the attention of a contractor, the contractor informed her that the sagging indicated insufficient structural support. R. 5, R. 224-25. This information concerned the Hildebrandts so much that they once again sought to be released from the purchase contract.
There is no dispute that the Hildebrandts were on notice that there was an issue with the Property's flooring and structure. This notice, at the very least, should have caused the Hildebrandts to question Hukill or the Youngs about alleged prior inspections of the Property's floor. Instead, the Hildebrandts did nothing and proceeded to purchase the Property. Under these facts, the Hildebrandts cannot establish reasonable reliance on Hukill's statements and their fraud claim against her fails.
The Hildebrandts have additionally made claims concerning Hukill's threatening litigation in the event that they did not follow through with purchasing the Property. Before the trial court, the Hildebrandts argued that Hukill's legal threats were a violation of KRS 324.160. They additionally contended that the reason they purchased the Property—despite being concerned with the defects—was because Hukill's threats made them feel that they had no choice but to do so. In their brief to this Court, the Hildebrandts maintain those arguments; however, they additionally argue that Hukill's threat constitutes another example of a fraudulent misrepresentation. A fraud claim is required to be pled with particularity. CR 9.02. Because the Hildebrandts' pleadings did not contend that Hukill's statements about legal action constituted fraud, we consider Hukill's legal threat only as to whether it had the effect of making the Hildebrandts believe they were forced to purchase the Property and whether it is actionable under KRS 324.160.
The Hildebrandts' fear that a lawsuit would be brought against them if they did not go through with the closing would not constitute sufficient duress to set aside the contract. See Ripy Bros. Distilling Co. v. Lillard, 149 Ky. 726, 149 S.W. 1009 (1912). "[I]t is not duress to threaten to do what one has a legal right to do, nor is it duress to threaten to take any measure authorized by law and the circumstances of the case." Redmon v. McDaniel, 540 S.W.2d 870, 872 (Ky. 1976) (citing 25 AM. JUR. 2D Duress & Undue Influence § 18; Bluestone v. Jones, 233 N.Y.S.2d 146 (N.Y. Sup. Ct. 1962)). The purchase contract and amended purchase contract both stated that if the Hildebrandts defaulted, the sellers' broker—here Hukill—would be automatically assigned the Youngs' right to recover damages, up to the amount of the commission she would have received had the sale been completed.
As to the Hildebrandts' claims made pursuant to KRS 324.160, the trial court correctly concluded that it could not consider them. "When administrative remedies exist, they must be exhausted before further relief may be sought[.]" Bulldog's Enters., Inc., v. Duke Energy, 412 S.W.3d 210, 212 (Ky. App. 2013). "[P]roper judicial administration mandates judicial deference until after exhaustion of all viable remedies before the agency vested with primary jurisdiction over the matter." Bd. of Regents of Murray State Univ. v. Curris, 620 S.W.2d 322, 323 (Ky. App. 1981). "The doctrine does not preclude judicial review, but rather delays it until after the expert administrative body has compiled a complete record and rendered a final decision." Kentucky Ret. Sys. v. Lewis, 163 S.W.3d 1, 3 (Ky. 2005) (citing Popplewell's Alligator Dock No. 1, Inc. v. Revenue Cabinet, 133 S.W.3d 456, 471 (Ky. 2004)). Pursuant to KRS 324.151(1), "[a]ll complaints against licensees shall be submitted to the [Kentucky Real Estate Commission] on forms furnished by the commission." (Emphasis added.) The statute expressly indicates that this includes claims brought under KRS 324.160. Accordingly, to obtain relief under KRS 324.160, the Hildebrandts must file a claim with the Kentucky Real Estate Commission.
B. Claims Against Adams
As noted above, the Hildebrandts have also appealed from the order granting partial summary judgment in favor of Adams. Having reviewed the record, we have determined we must dismiss this portion of the Hildebrandts' appeal for lack of jurisdiction. "While the parties did not raise the issue of appellate jurisdiction in their briefs, we are the guardians of our jurisdiction and thus are obligated to raise a jurisdictional issue sua sponte if the underlying order appears to lack finality." Padgett v. Steinbrecher, 355 S.W.3d 457, 459-60 (Ky. App. 2011) (citing Kentucky High School Athletic Ass'n v. Edwards, 256 S.W.3d 1, 4 (Ky. 2008); Hook v. Hook, 563 S.W.2d 716, 717 (Ky. 1978)).
For this Court to have jurisdiction, the order being appealed must either be a final judgment or an interlocutory order identified by the Kentucky Supreme Court as one from which an appeal may be taken. KRS 22A.020(2). A final or appealable judgment is a final order adjudicating all the rights of all the parties in the action or proceeding, or a judgment made final under CR 54.02. CR 54.02 concerns actions, such as the underlying one, which involve multiple claims against multiple parties. Pursuant to that rule, a trial court "may grant a final judgment upon one or more but less than all of the claims or parties only upon a determination that there is no just reason for delay." Id. For a judgment that does not resolve all claims to be appealable, CR 54.02 instructs that it must contain a recitation that the judgment is final and that there is no just reason for delay. Id.
Mere insertion of CR 54.02's "magic language" will not transform an order into a final order however, if the order does not fully adjudicate any claims. The rule contemplates situations where a trial court has ruled on "one or more but less than all of the claims" brought against a party. Id. (emphasis added). In the order partially granting Adams's motion for summary judgment, the trial court did not fully adjudicate either of the two claims brought against him. Pertinent language of that order reads as follows:
[A]s noted in the hearing and incorporated by reference herein, Plaintiffs' claims against Adams for breach of contract and negligence are dismissed with respect to all items noted in the Inspection Report, all items of which the Plaintiffs had notice prior to closing, and all matters observed or observable by Plaintiffs prior to closing. Summary judgment is not granted for claims of breach of contract and negligence relating to matters that were newly discovered after the closing which were not included in the Inspection Report, about which the Plaintiffs did not have notice prior to closing, or which were not observed or observable prior to closing.R. 732-33 (emphasis added).
The language of the order makes clear that the trial court did not grant judgment on any claims against Adams. The order carved out certain factual scenarios under which the Hildebrandts could not prevail on their breach of contract and negligence claims against Adams. It did not, however, dismiss either of those claims in toto. Accordingly, the order is interlocutory, and this Court cannot review it. See Murty v. Lexington-Fayette Urban County Airport Bd., 612 S.W.2d 765, 766 (Ky. App. 1981) ("[A]n interlocutory order disposing of some issue concerning the claim, but not disposing of the claim entirely, cannot be made appealable by the trial court.").
IV. CONCLUSION
In light of the foregoing, we affirm the trial court's order granting Hukill's motion for summary judgment, dismiss the portion of this appeal concerning the order granting Adams partial summary judgment, and remand.
ALL CONCUR. BRIEFS FOR APPELLANTS: Gerhard Hildebrandt
Yayi Chang
Pro se
Lexington, Kentucky BRIEF FOR APPELLEES THOMAS
ADAMS AND ADAMS MULTI-
SERVICE, INC.: Anne W. Miller
Louisville, Kentucky BRIEF FOR APPELLEES JENNIFER
HUKILL AND ELITE REALTY
GROUP, LLC: Vincent J. Eiden
Crestwood, Kentucky NO BRIEF FILED FOR APPELLEES
JOHN CORBITT FRANKLIN AND
KY PUNCHLIST, LLC NO BRIEF FILED FOR APPELLEES
GINA YOUNG AND
CHRISTOPHER YOUNG