BILL DOUGLAS AND BERNADINE M. FIRKINS v. JIMMIE COFFMAN AND TERESA COFFMAN
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RENDERED:
DECEMBER 1, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
2005-CA-001670-MR
BILL DOUGLAS AND
BERNADINE M. FIRKINS
APPELLANTS
APPEAL FROM CASEY CIRCUIT COURT
HONORABLE JAMES G. WEDDLE, JUDGE
ACTION NO. 01-CI-00200
v.
JIMMIE COFFMAN AND
TERESA COFFMAN
APPELLEES
OPINION
AFFIRMING IN PART, REVERSING IN PART
AND REMANDING
** ** ** ** **
BEFORE:
JUDGE.
SCHRODER, JUDGE; KNOPF,1 SENIOR JUDGE; MILLER,2 SPECIAL
SCHRODER, JUDGE:
This is an appeal from an order and an amended
judgment on remand from the Court of Appeals which awarded court
costs to appellee, denied appellant’s motion to quash the
attachment/execution and entered judgment with interest against
1
Senior Judge William L. Knopf sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
2
Retired Judge John D. Miller, sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
appellant’s surety on his supersedeas bond.
We adjudge that the
trial court should have quashed the attachment/execution because
the original judgment had been reversed in part by this Court in
the prior appeal.
Hence, we reverse in part and remand for
further proceedings.
We affirm as to all other arguments.
In 2000, Jimmie and Teresa Coffman, entered into a
contract with Bill Douglas for Douglas to construct a house for
the Coffmans.
The Coffmans moved into the home after
construction was completed in September 2000.
Shortly after
moving in, the Coffmans began to notice structural problems with
the home.
Because of these defects, the Coffmans withheld
payment on the final $8,981.21 that was due under the parties’
agreement.
In 2001, the Coffmans filed suit against Douglas in
the Casey Circuit Court, alleging that Douglas carelessly and
negligently constructed the residence in an unworkmanlike
manner.
Douglas counterclaimed for the unpaid balance on the
parties’ agreement.
Pursuant to a bench trial, the court
entered judgment in favor of the Coffmans in the amount of
$13,964.61 for the negligent construction.
The court also
awarded Douglas $8,981.21 as the remainder of the balance on the
contract.
Douglas then appealed to this Court and the Coffmans
cross-appealed.
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In our opinion rendered November 5, 2004, this Court
reduced the judgment for the Coffmans to $9,872.61, adjudging
that the $4,941 awarded for repair of the home’s center beam was
excessive and that the value of the repair was shown at trial to
be only $849.
This Court affirmed in all other respects,
including on the Coffmans’ cross-appeal.
This Court then
remanded the case to the circuit court for further proceedings
consistent with the opinion.
On February 7, 2005, the Coffmans filed a bill of
costs claiming $360.20 in court costs.
On February 10, 2005,
Douglas filed exceptions to the Coffmans’ bill of costs and
filed his own bill of costs claiming $857.80 in court costs.
The Coffmans filed exceptions to Douglas’ bill of costs on
February 16, 2005.
On June 15, 2005, Douglas filed a motion for
entry of an amended judgment in conformance with the Court of
Appeals opinion and for rulings on his exceptions and bill of
costs.
With this motion, Douglas tendered an amended judgment
which reduced the Coffmans’ judgment to $9,872.61, recognized
the $8,981.21 in his favor, and split the total court costs
between the parties equally.
Based on the calculations in the
tendered amended judgment, Douglas deposited with the circuit
clerk the sum of $642.54.
Douglas’ motion was set to be heard
on June 29, 2005.
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On June 18, 2005, the Coffmans filed objections to
Douglas’ motion and tendered amended judgment.
The Coffmans
claimed they were entitled to $1,611.80, which included the full
amount of their court costs ($360.20) and interest from the date
of the original judgment.
The objections also stated:
If payment of the judgment is tendered to
plaintiff, through their counsel, in good
funds, as calculated above, before June 29,
2005, they will enter satisfaction of
judgment. If counsel is required to travel
to Liberty for this hearing he will bring an
execution and garnishment for immediate
issuance, increasing both costs and
embarrassment of defendant.
On the morning of June 29, 2005, before Douglas’
motion was heard, the Coffmans obtained issuance of an
attachment of Douglas’ bank account in the amount of $1,561.80
plus interest, referencing the original judgment of April 10,
2003.
A writ of execution was entered of record by the clerk on
June 29, 2005, in the amount of $1,661.41, also referencing the
original judgment of April 10, 2003.
At the hearing on Douglas’ motion on June 29, 2005,
the court orally recognized the corrected amounts of the
judgments pursuant to the Court of Appeals opinion, refused to
allow any court costs to Douglas, and reduced the court costs
claimed by the Coffmans.
The Court made no ruling with regard
to interest on the judgments.
However, no written amended
judgment was entered at this time.
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Pursuant to the above
hearing and the court’s ruling, the Coffmans’ attorney sent a
letter to the sheriff asking that the amount of the execution be
reduced to $1,365.78 plus interest, plus $49.97 in collection
fees.
Upon learning of the attachment of his bank account,
Douglas moved to quash the attachment/execution.
The hearing on
the motion was set to be heard on July 11, 2005.
On July 7,
2005, the Coffmans filed a response to the motion to quash the
attachment/execution and moved for entry of judgment against
Bernadine Firkins, who was Douglas’ surety on the supersedeas
bond.
At the July 11, 2005, hearing, the court refused to
quash the attachment/execution, but did enter the amended
judgment tendered by Douglas which had been redrafted to conform
to the trial court’s oral rulings of June 29, 2005.
At the same
time, the court orally ordered that a judgment be entered
against Firkins as surety.
Upon entry of the amended judgment
on July 11, 2005, Douglas deposited with the circuit clerk two
checks, one in the amount of $891.40 representing the net
judgment, and one in the amount of $296.58 representing the
court costs allowed to the Coffmans.
Douglas’ original check
deposited with the clerk for $642.54 was voided and returned to
Douglas.
-5-
On July 14, 2005, the Coffmans received the checks and
demanded interest and additional costs for the garnishment and
execution in the amount of $183.35, based on an interest rate of
12%.
On July 18, 2005, the court entered an order denying
Douglas’ motion to quash the attachment/execution and granting
the Coffmans’ motion to enter judgment against Firkins as surety
on the supersedeas bond in the amount of $891.40 plus interest
from the date of the original judgment and court costs.
On July
20, Douglas paid into court $184.23, the remaining amount due,
representing the interest on the judgment.
satisfaction of judgment was entered.
On July 27, 2005, a
On July 29, 2005, the
writ of execution was withdrawn because Douglas had paid the
judgment in full.
Douglas and Firkins now appeal to this Court.
Appellants’ first argument is that the trial court
abused its discretion by refusing to award any court costs to
Douglas who had been partially successful on appeal and whose
judgment on his counterclaim was only slightly less than the
judgment in favor of the Coffmans.
CR 54.04(1) provides that
“[c]osts shall be allowed as of course to the prevailing party
unless the court otherwise directs; . . . .
In the event of a
partial judgment or a judgment in which neither party prevails
entirely against the other, costs shall be borne as directed by
the trial court.”
The action was initiated by the Coffmans in
this case because of Douglas’ negligent construction.
-6-
And
although Douglas did recover the balance on his agreement with
the Coffmans, that claim and amount was not contested by the
Coffmans in their complaint and was held back only because of
Douglas’ negligent construction.
CR 54.04 is clear that when
there is partial recovery by the parties, costs are within the
discretion of the trial court.
We cannot say that the trial
court abused its discretion in awarding costs to the Coffmans
and not awarding costs to Douglas.
Douglas next argues that the trial court erred, as a
matter of law, by refusing to quash the attachment/execution.
Douglas maintains that because the judgment against him was
partially reversed on appeal, no execution could issue prior to
the entry of an amended judgment in conformity with the opinion
of the Court of Appeals.
Douglas cites Begley v. Vogler, 612
S.W.2d 339 (Ky. 1981), wherein the Court held that under the old
CR 76.30, litigation is still considered pending until the lower
court enters a new judgment in conformance with the Court of
Appeals mandate in cases where the Court of Appeals directs some
additional corrective action to be taken by the trial court.
The Coffmans correctly point out that since Begley was rendered,
CR 76.30(2)(f) has been amended such that “[n]o mandate shall be
required to effectuate the final decision of an appellate court,
whether entered by order or by opinion.”
-7-
In our view, regardless of whether or not an amended
judgment in conformance with the Court of Appeals opinion was
necessary, the attachment/execution was improper in this case
because it referenced the original judgment dated April 10,
2003, which had been reversed in part.
The filing of the appeal
with the supersedeas bond stays enforcement of the original
judgment (CR 73.03; CR 62.03), and because the judgment was
reversed in part, it could not serve as the basis for the
execution.
Thus, it was error for the trial court to deny the
motion to quash the attachment/execution.
Douglas also argues that pursuant to KRS 426.030, he
had ten days after the amended judgment to satisfy the judgment
and no execution should have been issued prior to the expiration
of that time.
KRS 426.030 provides that “[n]o execution shall
issue on any judgment, unless ordered by the court, until after
the expiration of ten (10) days from the rendition thereof.”
While mandates are no longer required to effectuate a decision
of this Court under CR 76.30(2)(f), the opinion of this Court
remanded the case to the lower court for a judgment reflecting
the Court of Appeals decision.
Accordingly, we agree with
Douglas that he had ten days from the date of the amended
judgment to satisfy the judgment.
Again we adjudge that the
trial court erred in refusing to quash the attachment/execution.
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Appellants’ remaining argument is that the trial court
erred by entering a judgment against his surety on the
supersedeas bond where the principal was not in default.
Appellants maintain that under CR 73.07, Douglas had 20 days to
satisfy the judgment and did, in fact, satisfy the judgment.
Therefore, judgment should not have been entered against Firkins
as surety.
This argument was not raised in the trial court.
Thus, it was not preserved for appellate review.
CR 59.06.
For the reasons stated above, the order of the Casey
Circuit Court is affirmed in part, reversed in part, and
remanded for proceedings consistent with this opinion.
ALL CONCUR.
BRIEFS FOR APPELLANTS:
BRIEF FOR APPELLEES:
Jerry L. Foster
Liberty, Kentucky
Richard Clay
Danville, Kentucky
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