Opinion
NO. 2015-CA-000364-MR
03-24-2017
GLENN MOORE AND DONNA MOORE APPELLANTS v. FRED WHITE A/K/A EARNEST FREDERICK WHITE, HANNAH WHITE A/K/A HANNAH MAE WHITE, FREDDY WHITE A/KA EARNEST FREDERICK WHITE, JR., FRED WHITE A/K/A EARNEST FREDERICK WHITE D/B/A WHITE MOBILE HOME AND RV PARKS AND WHITE'S MOUNTAIN VILLAGE APPELLEES
BRIEFS FOR APPELLANTS: Todd K. Trautwein Morehead, Kentucky BRIEF FOR APPELLEES: Joshua J. Leckrone Anthony M. Pernice Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM ROWAN CIRCUIT COURT
HONORABLE WILLIAM EVANS LANE, JUDGE
ACTION NO. 11-CI-90266 OPINION
AFFIRMING
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BEFORE: ACREE, D. LAMBERT AND THOMPSON, JUDGES. ACREE, JUDGE: Glenn and Donna Moore appeal from the Rowan Circuit Court's August 19, 2014 order granting directed verdict in favor of Fred and Hannah White and White's Mountain Village on Moore's claims of trespass, nuisance, environmental damage to real property, strict liability, personal injury, and intentional infliction of emotional distress. After careful review of the record, we affirm.
I. Factual and Procedural Background
Glenn and Donna Moore own property adjoining White's Mountain Village, a mobile home park, located in Rowan County, Kentucky, owned by appellees, Fred and Hannah White (White). The Moores' property lies at the bottom of a steep down-grade below White's property. On August 1, 2011, the Moores filed suit against White and the mobile home park claiming that construction activity on White's property was causing both damage to the Moores' property and personal injury and illness. Specifically, they alleged the activity on White's property has caused debris to land on their property, has diverted significant surface water run-off onto the Moores' property resulting in flooding, and has swept contaminated and hazardous waste onto the Moores' property causing illness. The Moores' complaint included claims for trespass, nuisance, environmental damage to real property, personal injury, intentional infliction of emotional distress, strict liability, a demand for injunctive relief as well as for a jury trial and compensatory and punitive damages.
Prior to trial, counsel for both parties met in chambers to discuss the case. At that time, counsel for the Moores disclosed he did not intend to present any expert testimony or otherwise prove monetary damages. Despite the court's concern, the jury trial commenced. The court heard testimony from both Glenn and Donna Moore, as well as Rodney Jones, who surveyed the properties at issue, and Joseph Herman, a civil engineer who conducted a hydrologic analysis. The Moores also submitted maps produced by Mr. Jones and Mr. Herman's report on his findings regarding the impact of storm water run-off volumes associated with the development of the mobile home park. They presented additional testimony of several other witnesses including the local magistrate, a previous employee of the Transportation Cabinet (County Road Department) who had a connection with White's property, the Moores' son, and Mrs. Moore's sister. The Moores closed their case-in-chief.
The recording of the in-chambers conference does not appear in the record before this Court. However, both the occurrence and the content of the meeting are not in dispute. Both parties provide consistent accounts in their briefs of the meeting. Therefore, for purposes of this appeal, we include it as a part of the factual background of the case.
White then moved for a directed verdict on Moore's claims. White argued that there was simply no evidence presented supporting Moore's claims of personal injury. The Moores did not oppose the motion on those claims. White continued that all of the Moores' remaining claims failed for the same reason. That is, there was no evidence presented regarding diminution in value or actual damage of the Moores' property supporting the trespass, nuisance, strict liability, and environmental damage claims. Without it, White argued, any damage award would be pure speculation. The Moores claimed their property was completely destroyed so that it could not be valued.
The court granted the motion on those claims after hearing much argument.
White further argued that the remaining claim of intentional infliction of emotional distress was unsupported by any medical or scientific expert opinion demonstrating injury to the Moores caused by White. The court agreed that there was no proof of any injury supporting the claim. The Moores immediately made a request that the trial court hear their claim for injunctive relief. The court indicated that injunctive relief was not an issue for the jury to decide and requested briefs on the potential issue. On August 19, 2014, the court entered an order granting White's motion and dismissing with prejudice the Moores' claims of nuisance, trespass, environmental damage to real property, personal injury, intentional infliction of emotional distress, and strict liability.
The Moores never submitted a brief regarding their entitlement to an injunction as the court had previously requested. Instead, they filed a motion to alter, amend or vacate the trial court's order as well as a motion to schedule a hearing on the Moores' claim for injunctive relief. In their motion, the Moores asked the court to set aside its previous decision because they believed there to be an independent cause of action remaining for a permanent injunction against White. White filed objections to both motions. A hearing was held on September 19, 2014. The court denied the Moores' motion on February 10, 2015, stating that an injunction is a remedy and not a legal action in and of itself. Additionally, the court observed that the Moores had failed to submit any proof of injury or damage to the property. The Moores now appeal.
II. Standard of Review
"[T]he injunction is an extraordinary remedy, sufficiency of the evidence below must be evaluated in light of both substantive and equitable principles." Maupin v. Stansbury, 575 S.W.2d 695, 697 (Ky. App. 1978). Consequently, "a trial court's ruling granting or denying injunctive relief is reviewed under the abuse of discretion standard[.]" Price v. Paintsville Tourism Comm'n, 261 S.W.3d 482, 484 (Ky. 2008). Absent an abuse of that discretion, this Court will not disturb the trial court's decision. Maupin, 575 S.W.2d at 698.
III. Analysis
The Moores argue on appeal that the trial court misapplied Kentucky law in refusing to recognize their independent claim for injunctive relief. They further claim this failure to recognize their claim renders the trial court's order granting White's directed verdict interlocutory pursuant to CR 54.02. Alternatively, they argue the trial court abused its discretion in denying them injunctive relief.
Kentucky Rule of Civil Procedure --------
Their first argument is without merit. An injunction is an equitable remedy, not an independent cause of action. See Black's Law Dictionary REMEDY (10th ed. 2014) ("The means of enforcing a right or preventing or redressing a wrong; legal or equitable relief."). It serves the purpose to redress an injury not adequately provided by the law, such as an award of monetary damages. Cyprus Mountain Coal Corp. v. Brewer, 828 S.W.2d 642, 645 (Ky. 1992) ("Injunctions, generally, will not be granted, minus some positive provision of the law to the contrary, where there is a choice between ordinary processes of law and the extraordinary remedy by injunction, when the remedy at law is sufficient to furnish the injury party fill relief to which he is entitled in the circumstances.").
However, the remedy of injunctive relief is substantive. That is, a showing of irreparable injury "is a mandatory perquisite to the issuance of any injunction." Maupin, 575 S.W.2d at 699. An irreparable injury is one for which "there exists no certain pecuniary standard for the measurement of damages." Cyprus Mountain, 828 S.W.2d at 645 (quoting United Carbon Company v. Ramsey, 350 S.W.2d 454 (Ky. 1961)). It appears that it was the Moores' trial strategy to prove irreparable injury; however, they produced no evidence of any injury.
Secondly, simply styling the prayer for injunctive relief in the complaint as a separate cause of action does not make it so. The Moores sought both monetary damages and injunctive relief in his complaint.
To ascertain what remedy is desired of the court in a pleading, it is necessary to examine the prayer of the pleader. It defines specifically the legal right claimed and that by which the court will be guided in granting or refusing the relief, for the court cannot voluntarily grant or thrust upon the petitioner something he may not desire. The prayer also serves the additional purpose of
informing the defendant what is demanded of him and what particular remedy is asked.Holt's Adm'r v. Johnson, 56S.W.2d 962, 247 Ky. 180 (1933). The Moores state in their appellate brief that they initially specified damages of $500,000, but White continued the expansion activity on his property. They then amended their damages claim to $5,628,000, and claimed the activity on the Whites' property ceased. The Moores assert they used the "damages claims as a mechanism to encourage White to stop the expansion of White's mobile home park[.]" (Appellants' brief, p. 6). They state their family lacked the financial means to post bond as required by CR 65.05 to enjoin White's expansion activity. However, "the concept of "risk-free" injunctive relief is unheard of - CR 65.05 requires the party in whose favor the injunction is granted to post a bond and wrongfully enjoined parties may recover compensatory damages." National Collegiate Athletic Ass'n v. Lasege, 53 S.W.3d 77, 88 (Ky. 2001) (citations omitted). Additionally, the amount of the bond is a sum deemed proper by the court. See CR 65.05(1). Because the Moores did not take any steps to pursue a restraining order or temporary injunction after filing their complaint, we are not persuaded by their speculation.
Also, "[i]n order to establish their right to an injunction, there must be a clear showing of a right to the relief and a showing of urgent necessity." McCloud v. City of Cadiz, 548 S.W.2d 158, 161 (Ky. 1977). The Moores did nothing since the filing of their complaint in August 2011 to advance their claim to an injunction prior to trial in August 2014. They also stated several times throughout trial that their family had been suffering at the hands of White since 2000.
Nonetheless, despite demanding monetary damages in their complaint, the Moores maintain the sole objective of the lawsuit against White was to obtain injunctive relief. And further, because the trial court did not refer to the injunctive relief sought by the Moores in its order granting White's directed verdict, they assert that the order is interlocutory. We do not agree.
The Moores assert the trial court's order is interlocutory although it does contain "final and appealable language" because it "adjudicates less than all of the claims" of their action. See CR 54.02. The Kentucky Supreme Court has explained how CR 54.02 operates:
In any case presenting multiple claims or multiple parties, CR 54.02 ..., vests the trial court - as the tribunal most familiar with the case - with the discretion to release for appeal final decisions upon one or more, but less than all, claims in multiple claims actions. In such a case, the trial court functions as a dispatcher. If the trial court grants a final judgment upon one or more but less than all of the claims or parties, that decision remains interlocutory unless the trial court makes a separate determination that there is no just reason for delay. And the trial court's judgment shall recite such determination and shall recite that the judgment is final.Watson v. Best Financial Services, Inc., 245 S.W.3d 722, 726 (Ky. 2008) (internal citations and quotation marks omitted). These recitations by the trial court are mandatory.
For the purpose of making an otherwise interlocutory order final and appealable, the trial court is required to
determine "that there is no just reason for delay," and the judgment must recite this determination and also recite that the judgment is final.Hale v. Deaton, 528 S.W.2d 719, 722 (Ky. 1975); CR 54.02(1).
The trial court's August 19, 2014 order contained all of the language required by CR 54.02. Despite the omission of any specific language relating to the Moores' demand for an injunction in the order, it serves as a final and appealable judgment consistent with CR 54.02. The judgment "conclusively determine[s] the rights of the parties in regard to that particular phase of the proceeding." Hale v. Deaton, 528 S.W.2d 719, 722 (Ky. 1975).
The Moores further contend that CR 54.02(3) requires that claims for injunctive relief and damages be treated as separate claims. However, the rule provides that "demands in an action for both injunctive relief and damages may be treated as separate claims." CR 54.02(3) (emphasis added). Here, it was unnecessary for the trial court to treat the demands for relief as separate claims because the Moores' right to injunctive relief was determined by addressing the issues they presented and assessing the merits of their claim. See Chapman v. Beaver Dam Coal Co., 327 S.W.2d 397, 400 (Ky. 1959) ("[I]f there is a lack of proof of past or present damage and no reasonable certainty of future damage, which was shown here, [plaintiff] is not entitled to an injunction prohibiting the discharge by [defendant] of water[.]"). In other words, injunctive relief is not afforded by the final judgment in this action. Further, in their reply to White's response to their post-judgment motions, the Moores acknowledge their claims for injunctive relief and damages "are co-dependent and arise from the evidence presented by [the] Moore[s] at trial." (R. 659). It was the Moores' burden to demonstrate entitlement to relief, but that burden was not met in either of the forms of relief they sought.
In the Moores' presentation of their case, they presented no evidence of damages or actual injury resulting from trespass or nuisance. They recognized their property has always been located at a lower point than the properties surrounding it, and their property sits adjacent to a creek. Based solely on its location, the property would be expected to flood. Mrs. Moore, who grew up on the property, confirmed in her testimony that the creek on the property had occasion to flood every time there was a heavy rain. Several of the photographs Moore presented to the court of the property when it was flooded were taken prior to any construction on White's property. The Moores presented no evidence regarding the diminution in the value of their property. They did not offer medical proof or expert testimony for the personal injury or intentional infliction of emotional distress claims. They offered no test results or evidence of contamination on their property caused by White's activity. There was no proof of any injury or damage to the property. As a result, the evidence that was introduced at trial was inadequate to sustain allegations of damage and irreparable injury. Accordingly, the order granting White's directed verdict is not interlocutory as it contained all language required by CR 54.02 and disposed of all of the Moores' claims.
Furthermore, any question remaining regarding the Moores' demand for an injunction was addressed in the trial court's February 18, 2015 order denying the Moores' motion to alter, amend, or vacate the order granting White's motion for directed verdict. The trial court specifically provided:
If [the Moores] had submitted proof of significant injury to the property and its value due to the flowage of water and contamination ... [their] remedy would have ensued, however there was never any such proof introduced. [The Moores] had their opportunity but did not have the proof to get to their goal.(R. 670). In denying the Moores' motion to alter, amend, or vacate the judgment, the court specifically denied injunctive relief.
Finally, the Moores argue that the trial court abused its discretion in denying them injunctive relief. We disagree.
It is abundantly clear from the record that there was a lack of proof of any past or present damage to the Moores' property, and for that reason, injunctive relief against White is unwarranted. Additionally, simply failing to prove or choosing not to prove an injury justifying monetary damages does not amount to an inadequate remedy at law entitling one to an injunction. The Moores do not dispute or take issue with the trial court's decision to grant White's motion for directed verdict. The Moores did not prevail on the merits of their action because their case lacked evidentiary support of any injury or damage; therefore, it naturally follows that there is no evidence of irreparable harm entitling the Moores to an injunction. Accordingly, the trial court did not abuse its discretion in denying injunctive relief.
For the foregoing reasons, we affirm.
LAMBERT, D., JUDGE, CONCURS.
THOMPSON, JUDGE, CONCURS IN RESULT ONLY. BRIEFS FOR APPELLANTS: Todd K. Trautwein
Morehead, Kentucky BRIEF FOR APPELLEES: Joshua J. Leckrone
Anthony M. Pernice
Lexington, Kentucky