MARRS ELECTRIC CO., INC. v. RUBLOFF BASHFORD, LLC AND RUBLOFF CONSTRUCTION, INC.
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RENDERED:
APRIL 7, 2006; 2:00 P.M.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002429-MR
MARRS ELECTRIC CO., INC.
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE LISABETH HUGHES ABRAMSON, JUDGE
ACTION NO. 02-CI-006680
RUBLOFF BASHFORD, LLC
AND RUBLOFF CONSTRUCTION, INC.
APPELLEES
OPINION AND ORDER
DISMISSING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; HENRY AND SCHRODER, JUDGES.
HENRY, JUDGE:
Marrs Electric Co., Inc. (hereinafter “Marrs”)
appeals from an order of the Jefferson Circuit Court denying its
motion for pre-judgment interest.
Upon review, we are obligated
to dismiss this appeal.
In the fall of 2001, Rubloff Bashford, L.L.C.
(hereinafter “Rubloff”) contracted with Rubloff Construction,
Inc. (hereinafter “Construction”) to renovate the interior of
the Bashford Manor Mall (hereinafter “the mall”) in Louisville,
Kentucky.
Rubloff and Construction are owned by the same three
partners.
In December 2001, Construction contracted with Marrs
to demolish the existing electrical equipment and lighting at
the mall and to install eight types of new light fixtures, plus
exit and emergency lighting, for an amount totaling $341,193.00.
The project drawings and specifications were prepared by
Rubloff’s project architect and incorporated by reference into
Marrs’ contract.
This contract additionally stated that work
was to begin on December 10, 2001, and that it had to be
completed by March 1, 2002.
It also contained a provision for
liquidated damages in the amount of $250.00 per calendar day for
each additional day of work after March 1st, but no provision for
interest on the obligations due thereunder.
In February 2002, Construction stopped all work on the
project.
By this time, Marrs had completed nearly all of the
interior demolition, had installed almost all of the conduit for
new wiring, had purchased and taken delivery of most of the
light fixtures specified in the contract, and was preparing to
install the new light fixtures.
Despite this progress, however,
Marrs was not paid for any of the labor or materials it provided
to Rubloff even after requesting payment on a number of
occasions.
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Consequently, on May 23, 2002, Marrs filed a
mechanics’ and materialman’s lien, pursuant to KRS1 376.010, in
the amount of $244,713.00 against Rubloff to secure payment of
the amounts Marrs alleged represented the value of the labor and
materials it had provided.
On September 5, 2002, Marrs filed a
verified complaint in Jefferson Circuit Court; the complaint
included a foreclosure action on the Rubloff property that was
described in the lien.
On December 9, 2002, the matter was
referred to the Jefferson County Master Commissioner’s office
for further proceedings.
The master commissioner conducted a series of hearings
in the spring and summer of 2003 and ultimately issued a report
on July 8, 2003, finding that Marrs’ lien should be reduced to
$188,746.00 to reflect the fact that some of the light fixtures
were not custom-made for the project and were not delivered to
the jobsite.
On July 17, 2003, Marrs filed a motion before the
circuit court to modify the master commissioner’s report.
It
specifically challenged the commissioner’s omission from the
lien of $56,047.00 in lighting fixtures because they had been
special-ordered and manufactured per Rubloff’s plans and
specifications for the project.
Marrs also argued that Rubloff
had actual notice during the course of the project of the exact
type and quantity of materials to be supplied by Marrs.
1
Kentucky Revised Statutes.
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On September 25, 2003, the circuit court partially
granted Marrs’ motion to modify and ordered Marrs’ lien to be in
the amount of $243,411.00 – a $1,302.00 reduction in the
original amount of the lien.
On October 31, 2003, the circuit
court issued a “final and appealable order” holding that Marrs
had a valid and enforceable lien for $243,411.00.
The court
specifically found that Marrs was entitled to a lien for all
non-inventory fixtures that were manufactured per the contract
specifications of Rubloff’s project architect and its electrical
engineering firm.
It also found that Rubloff had actual notice
of the precise type and quantity of fixtures and materials to be
delivered during the course of the project because they were
specifically designated in the project drawings and prepared
specifications.
In January 2004, Rubloff paid Marrs $243,411.00 plus
post-judgment interest to secure release of Marrs’ lien.
In
that same month, it filed a memorandum setting forth reasons why
Marrs was not entitled to pre-judgment interest.
Marrs filed a
concurrent memorandum setting forth its own reasons why prejudgment interest should be awarded.
The record is unclear as
to what precipitated the filing of these pleadings.
On January
8, 2004, the circuit court entered an opinion and order
concluding that “even though pre-judgment interest cannot be
included in Marrs’ mechanics’ lien, an award of such interest as
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part of a judgment is not necessarily precluded.
If, following
a hearing, it is determined that the amounts claimed by Marrs
pursuant to its mechanics’ lien were liquidated at the time the
lien was filed, pre-judgment interest may be awarded.”
On June 30, 2004, Marrs filed a motion for summary
judgment on the issue of its entitlement to pre-judgment
interest.
Marrs argued that its damages were liquidated as of
the date of the filing of its lien, and that Rubloff should not
be allowed to become inequitably enriched at its expense.
Marrs
additionally set forth that it was entitled to $28,576.58 in
interest, an amount which represented a calculation at eight
percent interest compounded annually.
Rubloff argued in
response that the circuit court’s judgment did not provide for
pre-judgment interest, that Marrs’ damages were not liquidated,
and that KRS 376.010 and 360.040 do not give courts authority to
grant pre-judgment interest on mechanics’ and materialman’s
liens absent a contractual provision.
On October 22, 2004, the
circuit court issued an order ruling that Marrs was not entitled
to pre-judgment interest on the October 31, 2003 judgment;
however, the order provided no reasoning or basis for the
court’s decision.
This appeal followed.
After reviewing the record, we are compelled to first
address Rubloff’s contention that Marrs’ failure to move the
circuit court to alter or amend its October 31, 2003 order so as
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to include pre-judgment interest within the time frame set forth
in CR2 59.053 is fatal to its appeal.
Marrs argues in response
that this issue “was specifically addressed with the Court prior
to its October 31, 2003 order, and the Court requested counsel
for Marrs to file a Brief addressing this issue.”
It adds: “The
issue of prejudgment interest was to be addressed separately
from those issues addressed by the Court’s October 31, 2003
Order.
For Rubloff to now suggest otherwise is disingenuous.”
In Kentucky Farm Bureau Ins. Co. v. Gearhart, 853
S.W.2d 907 (Ky.App. 1993), this court faced a similar issue to
the one presented here.
There, a judgment was entered against
the defendant on February 25, 1991, but the judgment did not
include an award of pre-judgment interest.
Id. at 909.
Subsequently, on March 16, 1991, the plaintiff moved the trial
court for an award of pre-judgment interest, which the court
granted.
Id.
We classified the motion filed by the plaintiff
as a motion to alter or amend the judgment and noted that such
motions “shall be served not later than 10 days after entry of
the final judgment.”
Id. at 910, citing CR 59.05.
Accordingly,
we concluded that the plaintiff’s motion for pre-judgment
interest, on its face, was untimely.
2
Id., citing Coca-Cola
Kentucky Rules of Civil Procedure.
3
That rule provides: “A motion to alter or amend a judgment, or to vacate a
judgment and enter a new one, shall be served not later than 10 days after
entry of the final judgment.”
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Bottling Works (Thomas), Inc. v. Hazard Coca-Cola Bottling
Works, Inc., 450 S.W.2d 515, 519 (Ky. 1970).
In an effort to avoid a resulting rejection of his
cross-appeal, the plaintiff argued that the trial court
“reserved” the issue of pre-judgment interest prior to trial,
and that the defendant’s motion for a new trial or a judgment
notwithstanding the verdict made the original judgment
interlocutory, and thus subject to amendment.
Id.
We rejected
both contentions, stating:
We will assume that the trial court intended
to make its decision regarding interest only
after the jury had returned a verdict in
favor of Gearhart when it “reserved” its
decision on the issue. Even if such is
true, it was incumbent upon Gearhart to
timely move under CR 59.05 to alter or amend
the judgment when it was issued and
prejudgment interest was not awarded.
Whittenberg Engineering & Construction
Company v. Liberty Mutual Insurance Company,
Ky., 390 S.W.2d 877, 884 (1965). As in
Whittenberg Engineering, there is no basis
for the other avenues of relief (i.e., CR
60.01 or CR 60.02) potentially available to
Gearhart. Consequently, regardless of the
reason for the omission, Gearhart had ten
(10) days from entry of the February 25,
1991, judgment to serve a motion requesting
the judgment be altered or amended to
include prejudgment interest. Id. Having
failed to do so, Gearhart’s motion is time
barred, even if the trial court did
“reserve” the question.
Id.
(Citations in quote).
We further noted that “a trial court
loses control of a judgment ten (10) days after the entry of the
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judgment, except to the extent an authorized, timely motion
under CR 59 is made.”
Id., citing Ohio River Pipeline Corp. v.
Landrum, 580 S.W.2d 713, 718 (Ky.App. 1979).
Although Gearhart
involves an insurance dispute, we have not found anything, nor
have we been presented with anything, to suggest that the
general principles that are set forth above should not be
equally applicable in this case.
The October 31, 2003 order in issue here clearly
provides a notation that it is a “final and appealable” order
and judgment.
Consequently, per Gearhart, it was incumbent upon
Marrs to timely move the circuit court to amend said order so as
to include pre-judgment interest within ten days of its
issuance, pursuant to CR 59.05, in order for the issue to be
properly considered by the circuit court.
As Marrs did not do
so, the circuit court lost control and jurisdiction over the
judgment ten days after its entry, and any subsequent efforts to
amend it to include pre-judgment interest should have been
dismissed as untimely.
Id.
Marrs’ argument that the circuit
court intended the pre-judgment interest issue to be addressed
separately is unavailing for the reasons set forth in Gearhart.
An additional effect of Marrs’ failure to file a
timely CR 59.05 motion is that the 30-day time period during
which an appeal from the October 31, 2003 judgment could have
been taken was not tolled and consequently expired well before
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the notice of appeal here was filed.
See CR 73.02(1)(e);
Merrick v. Commonwealth, 132 S.W.3d 220, 222 (Ky.App. 2004).
Accordingly, we are obligated to dismiss this appeal as
untimely.
CR 73.02(2); see also Fox v. House, 912 S.W.2d 450,
451 (Ky.App. 1995) (Citations omitted).
Therefore, it is ORDERED that the above-styled appeal
be HEREBY DISMISSED.
ALL CONCUR.
ENTERED:
April 7, 2006
/s/ Michael L. Henry______
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gerald S. Stovall
Robin S. Craddock
Louisville, Kentucky
James T. Lobb
Gordon C. Rose
Louisville, Kentucky
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