WALDMAN (CAROL) VS. WALDMAN (RANDALL), ET AL.
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RENDERED: OCTOBER 22, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001997-MR
CAROL WALDMAN
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 07-CI-09166
RANDALL WALDMAN;
LUKE SYKES; AND LAUREN SYKES
APPELLEES
OPINION
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE: MOORE, NICKELL, AND WINE, JUDGES.
NICKELL, JUDGE: Carol Waldman appeals from an order dismissing her claims
for trespass and waste. She argues the trial court erred by: (1) concluding
“innocent” trespassers are not liable for damages; (2) utilizing the wrong measure
of damages and dismissing her claim for aiding the trespass; and (3) dismissing her
claims for waste and damage to the property. After reviewing the record, the law,
and the briefs, we affirm in part, reverse in part, and remand.
Carol Waldman is the widow of Alan Waldman. Alan and Carol
married in 1995. In 2004, the couple purchased a home to be used as rental
property in Louisville, Kentucky. The couple owned the home in joint tenancy
with right of survivorship. They initiated divorce proceedings in December 2005,
and Carol returned to her home state of Arizona. Alan passed away before the
decree of dissolution became final and the dissolution action was dismissed. Prior
to his death, Alan executed a will disinheriting Carol.
Alan’s only child, Randall Waldman, acted as executor of Alan’s
estate, but was removed from that position by the district court. Randall asserted
that Alan had conveyed the home’s title to him by way of a quitclaim deed just
days before his death. In reliance on the quitclaim deed and in accordance with
Alan’s will, but unbeknownst to Carol, Randall allowed his daughter, Lauren
Sykes, and her husband, Luke Sykes, to move into the house. Carol attempted to
retake possession of the home and sell it, but the Sykeses would not vacate the
premises and lived in the house for approximately one year.
Carol brought a forcible detainer action in district court, which was
dismissed because ownership of the property was contested and no landlord-tenant
relationship was established. She then filed a declaratory judgment action in
Jefferson Circuit Court seeking: (1) a declaration that she was the sole owner of
the property; (2) ejection of the Sykeses from the property; and (3) monetary
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damages for unpaid rent and property damage. The trial court granted a partial
summary judgment declaring Carol to be the sole owner of the property and
ordering the Sykeses to be ejected from the property. Randall filed a notice of
appeal to this Court, but then filed a motion in the trial court to dismiss his notice
of appeal “because the parties have reached an agreement.”1 This Court entered an
order on June 13, 2008, dismissing the appeal upon Randall’s motion.2 Carol then
filed an amended complaint alleging the Sykeses had committed waste and
removed tangible property from the home. Following a bench trial on Carol’s
remaining claims, the trial court entered findings of fact, conclusions of law, and
an order dismissing the remaining claims arising under Carol’s complaint. This
appeal followed.
First, Carol argues the trial court erred by concluding an “innocent”
trespasser is not liable for damages to a property owner. She further argues the
trespass by the Sykeses and Randall was neither innocent nor harmless. In ruling
against Carol, the trial court relied upon a line of cases involving trespass to land
for the purpose of obtaining surface minerals. See Church and Mullins Corp. v.
Bethlehem Minerals Co., 887 S.W.2d 321 (Ky. 1992).
We conclude the trial court misapplied Church and Mullins Corp.,
when it found that “innocent” trespassers are not liable for damages. In Church
1
The record does not reflect the terms of the agreement.
2
No appeal was taken from the partial summary judgment adjudging Carol to be the sole owner
of the property and that determination is now final. Further, no cross-appeal was taken from the
judgment below and any issues regarding the ownership of the property are not before us.
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and Mullins Corp., the trial court found that Bethlehem Minerals willfully
trespassed upon the property of Church and Mullins Corp. to procure minerals.
The Court of Appeals reversed concluding the trespass was innocent. Relying
solely on Swiss Oil Corp. v. Hupp, 253 Ky. 552, 69 S.W.2d 1037 (1934), the
Supreme Court of Kentucky reversed the Court of Appeals concluding that the trial
court’s finding of willful trespass was not clearly erroneous. The Supreme Court
did not discuss the consequences of innocent trespass in Church and Mullins
Corp.; rather, its analysis focused on the factors to be considered in determining
whether a trespass was willful. However, in Swiss Oil Corp., 69 S.W.2d at 1039,
the former Court of Appeals explained that the distinction between a willful and an
innocent trespass is one of consequence in regard to the amount of damages
resulting therefrom, stating:
the abstract distinction between a willful and an innocent
trespasser met with in the opinions dealing with this
character of cases, namely, the one knows he is wrong
and the other believes he is right. The degree of
culpability as between the two determines the extent of
liability. The former class of wrongdoers find the way of
the transgressor hard under the law. They are held to a
strict accountability for their malappropriation of
another's property. Complete restitution without credit
for expenses incurred or deduction of costs of production
is required. But those who invade the property of another
inadvertently or under a bona fide belief or claim of right
and extract minerals are allowed credit for proper
expenditures in obtaining or producing them. While not
allowed any profit, they are not to be penalized.
(Emphasis added). As stated above, any distinction between innocent and willful
trespassers relates to the extent of liability rather than the existence of liability.
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Therefore, the trial court erred by holding that innocent trespassers are not liable
for damages.
Next, Carol argues the trial court utilized the wrong measure of
damages for trespass, and the trial court’s finding that she failed to adequately
prove the reasonable rental value of the property was clearly erroneous. We agree.
Church and Mullins Corp. and Swiss Oil Corp. both dealt with
trespass in connection with oil and mineral extraction, which require damages
specific to that context. In Walden v. Baker, 343 S.W.2d 797, 799 (Ky. 1961),
under circumstances similar to the present case, the former Court of Appeals held
the measure of damages for trespass is “. . . the reasonable rental value of the
property for the period of time it was wrongfully withheld.”
William Stout, a certified real estate broker and property manager,
testified on Carol’s behalf. He stated the reasonable rental value of the property
was $1,475.00 per month. Stout’s testimony and valuation was uncontroverted.
The trial court found that Stout’s testimony was speculative because he also
testified that similar property rented for a lower amount and, therefore, could not
state with certainty the amount that the Sykeses or any other tenant would have
paid under a standard lease agreement. However, the amount a tenant “would
have” paid under a standard lease agreement is not the correct measure of
damages. Under Walden, the proper measure is the reasonable rental value during
the period the property was withheld from the owner. Therefore, as Stout testified
to the reasonable rental value of the property, and his testimony was
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uncontroverted, the trial court’s finding otherwise was clearly erroneous and must
be reversed. See Callahan v. Callahan, 579 S.W.2d 385, 387 (Ky. App. 1979)
(trial court’s findings that household furnishings were valued at $500.00 and
automobile was valued at $100.00 were clearly erroneous when the only valuations
in evidence showed the furnishings to be worth $2,000.00 and the automobile to be
worth $650.00).
Additionally, Carol argues the trial court erred by dismissing her
complaint against Randall for aiding the trespass. Kentucky law imposes liability
on those who aid or abet a trespass. Jackson v. Metcalf, 415 S.W.2d 363 (Ky.
1967); Bird v. Lynn, 49 Ky. 422 (1850) (“To render a party liable for trespass who
was not present, such party must knowingly and intentionally have encouraged its
commission in a way calculated to cause it to be done.”). The trial court dismissed
the claim against Randall based upon its erroneous application of Church and
Mullins Corp. Here, the uncontroverted evidence demonstrated the Sykeses
entered and wrongfully occupied the property through the actions and purported
authority of Randall. Therefore, Carol’s claim against Randall for aiding and
abetting trespass was improperly dismissed and must be reversed.
Finally, Carol argues the trial court erred by dismissing her claims for
waste and damage to the property as a result of the alleged trespass. Carol also
argues the trial court erred in finding these damages offset a loan Randall alleged
he made to her.
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KRS3 381.350 states:
[i]f any tenant for life or years commits waste during his
estate or term, of anything belonging to the tenement so
held, without special written permission to do so, he shall
be subject to an action of waste, shall lose the things
wasted, and pay treble the amount at which the waste is
assessed.
The Sykeses were neither life tenants nor tenants for years because the property
was not conveyed to them. They occupied the property by virtue of Randall’s
permission. Likewise, Randall was neither a life tenant nor a tenant for years
because Alan granted his entire interest in the property, being that of joint tenancy
with right of survivorship, to Randall through the quitclaim deed. Moreover, in her
brief before this Court, Carol concedes she never alleged the Sykeses or Randall
were life tenants. According to KRS 381.350, an action for waste applies only to
life tenants and tenants for years.
It appears that Carol confuses the concepts of waste and trespass.
Black’s Law Dictionary at page 1760 (Revised 4th ed., West 1968), defines
“waste” in pertinent part, as follows:
An abuse or destructive use of property by one in rightful
possession. . . A destruction or material alteration or
deterioration of the freehold, or of the improvements
forming a material part thereof, by any person rightfully
in possession, but who has not the fee title or the full
estate. . . The primary distinction between “waste” and
“trespass” is that in waste the injury is done by one
rightfully in possession.
3
Kentucky Revised Statutes.
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(Internal citations omitted). Carol argues the trial court erred by holding
trespassers are not liable for waste. Under the authority cited above, however,
because neither the Sykeses nor Randall held a life tenancy or a tenancy for years,
the trial court properly dismissed Carol’s action for damages arising from her
claim for waste.
Moreover, the trial court properly found Carol’s other claims for
damages resulting from injury to her property as a result of the trespass to be
unsupported by credible evidence. CR4 52.01 provides that “[f]indings of fact shall
not be set aside unless clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge the credibility of witnesses.” A judgment is
not “clearly erroneous” if it is “supported by substantial evidence.” OwensCorning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998).
Substantial evidence is “evidence of substance and relevant consequence having
the fitness to induce conviction in the minds of reasonable men.” Id.
In comparing the proffered “before” and “after” photographs, the trial
court found no credible evidence of the alleged damage. Carol has not shown this
finding to be clearly erroneous. Rather, she asks this Court to substitute its
judgment of the evidence for that of the trial court, which we are not authorized to
do. Bickel v. Bickel, 95 S.W.3d 925, 928 (Ky. App. 2002). Similarly, in regard to
Carol’s claim for stolen property, the trial court found the evidence was not
credible because she could not produce photographs of or receipts for the claimed
4
Kentucky Rules of Civil Procedure.
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items. Further, items she claimed had been stolen appeared in the “after”
photographs. Thus, we have no reason to disturb the trial court’s findings on this
issue under Bickel.
Carol also argues that the trial court’s finding that a loan allegedly
made by Randall to Carol offset any damage to the property was not supported by
substantial evidence. However, because the trial court properly dismissed Carol’s
claims for damage to the property for lack of evidence, any error in its finding
regarding the alleged loan is dicta and therefore, harmless.
In conclusion, we reverse the portion of the judgment dismissing
Carol’s claim for damages arising under her allegations of trespass against Randall
and the Sykeses. We further direct that judgment be entered in favor of Carol for
the reasonable rental value of the property as testified to by Stout. No new trial is
warranted because the “well settled rule in this jurisdiction is that upon reversal of
a judgment in an ‘equity’ (nonjury) case the case will not be remanded for a retrial
or for taking of further proof unless there are special exigencies or circumstances
indicating that the ‘ends of justice’ require such a remand.” City of St. Matthews v.
Oliva, 392 S.W.2d 39, 40 (Ky. 1965) (citations omitted). The portions of the
judgment dismissing the claims for waste and damage to the property are affirmed.
Accordingly, the judgment of the Jefferson Circuit Court is affirmed
in part, reversed in part, and remanded for proceedings consistent with this
opinion.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Homer Parrent, III
Louisville, Kentucky
Richard M. Sullivan
Kenneth A. Bohnert
Louisville, Kentucky
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