RENDERED: JUNE 7, 2013; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2012-CA-000063-MR CREATIVE BUILDING AND REMODELING, LLC APPELLANT APPEAL FROM WARREN CIRCUIT COURT v. HONORABLE JOHN R. GRISE, JUDGE ACTION NO. 09-CI-00691 LESLEY WILLIAMS; AND BRIAN HUBBARD APPELLEES OPINION AFFIRMING ** ** ** ** ** BEFORE: ACREE, CHIEF JUDGE; TAYLOR AND VANMETER, JUDGES. TAYLOR, JUDGE: Creative Building and Remodeling, LLC (Creative Building) brings this appeal from a June 10, 2011, Findings of Fact, Conclusions of Law and Judgment of the Warren Circuit Court awarding $2,812 in damages and attorney s
fees for breach of a lease agreement and a December 8, 2011, order increasing the award of the attorney s fees to $810. We affirm. Creative Building is owned and operated by Jerry Roberts and his son, Bradley Roberts. On September 1, 2007, Creative Building entered into a residential lease with Lesley Williams and Brian Hubbard (collectively referred to as appellees) for property located at 311 Hillwood Drive, Bowling Green, Kentucky. The lease was for a term of one year with an option to renew. Pursuant to the terms of the lease, monthly rent of $1,350 was due on the first day of each month. Appellees also paid a damage deposit of $1,350. It is undisputed that the parties complied with the terms of the one-year lease and that appellees paid rent through December 2008. Appellees did not pay monthly rent thereafter. On February 9, 2009, counsel for Creative Building 1 sent a letter to appellees notifying them that rent had not been received for January or February of 2009. The letter provided that if rent was not paid within seven days the rental agreement would terminate, and Creative Building would bring an action to recover sums for unpaid rent, damage to the property (beyond normal wear and tear ) and reasonable attorney s fees. Appellees responded by writing a letter to Creative Building acknowledging they owed rent for January and February and stating they would voluntarily vacate the premises before March 1, 2009. 1 Creative Building and Remodeling, LLC, (Creative Building) was owned and operated by Jerry Roberts and his son, Bradley Roberts. Jerry Roberts wife, Nancy Roberts, is an attorney and acted as counsel for Creative Building throughout this litigation. -2-
Appellees further requested that their $1,350 deposit be applied to cover the arrearage for one month s rent. On February 19, 2009, 2 again in response to the February 9, 2009, letter, appellees sent an e-mail to Creative Building conceding that rent was past due and owing for January and February. In the letter, appellees further stated [w]e are voluntarily giving you your property, as of midnight February 28, 2009. Then, on February 28, 2009, appellees sent another e-mail explaining that our exit from your property is almost complete and will be finished by a day or 2 later than we expected, primarily due to current weather conditions. Once complete, we will leave the keys and garage openers as earlier promised. On March 4, 2009, the keys and garage opener were left at counsel s office as promised. A representative of Creative Building then inspected the rental property and discovered that several items of personal property belonging to appellees still remained on the premises. Creative Building caused the remaining items of personal property to be removed from inside the home to the garage, so painting and repair of the rental property could commence. 3 On March 7, 2009, Williams returned to the property to retrieve the remaining personal property and discovered the items had been dumped in the garage and were allegedly damaged as a result. 2 On February 19, 2009, Creative Building filed a forcible detainer action against Lesley Williams in Warren District Court, but the action was subsequently dismissed. 3 The extent of the necessary repairs is disputed by the parties and is at issue in this appeal. -3-
On April 22, 2009, Creative Building filed a complaint against appellees in the Warren Circuit Court. Therein, Creative Building alleged that appellees breached the lease agreement by failing to pay rent for the months of January, February, and March 2009. Creative Building maintained that appellees also failed to properly maintain the property and caused damage to the property. Creative Building sought recoupment for three months of unpaid rent (January, February, and March) and for damage to the rental property. Appellees then filed a counterclaim alleging that Creative Building damaged their personal property by removing same from the premises and placing it in the garage. The matter was heard by the court without a jury. Kentucky Rules of Civil Procedure (CR) 52.01. The circuit court ultimately awarded Creative Building the following: 1. A judgment is entered against the defendants, jointly and severally, for the following amounts: a. $2,700 for two months rent [January and February]; b. $500 for damages for repairing property inside and out, plus grading and seeding costs of $200; c. $35 for a garage door opener; d. $500 for reasonable attorneys fees; and e. $177 for filing fee and $50 for service of process. 2. [Appellees] shall have a credit of $1,350 for the amount paid as a damage deposit toward the judgment; and 3. The total judgment against [Appellees], therefore, is $2,812.00, including court costs. -4-
After a motion to alter, amend, or vacate was filed by Creative Building, the circuit court increased the award of attorney s fees from $500 to $810. Being dissatisfied with the award, Creative Building brings this appeal. Creative Building initially contends that the circuit court erroneously denied its motion for a jury trial. We disagree. The record indicates that Creative Building filed its complaint on April 22, 2009, and the complaint was served on April 27, 2009. Thereafter, on May 22, 2009, Creative Building filed a motion for default judgment. A pro se answer was filed by appellees on May 26, 2009. On June 8, 2009, the circuit court rendered an order denying Creative Building s motion for default judgment. Creative Building did not file the motion for jury trial until October 20, 2009, some five months after the answer was filed. By order entered December 18, 2009, the circuit court denied Creative Building s motion for jury trial. It is well-settled that the right to trial by jury is waived if a demand for same is not made within 10 days after service of the last pleading directed to an issue triable by jury. Empire Metal Corp. v. Wohlwender, 445 S.W.2d 685, 689 (Ky. 1969) (citing CR 38.02; CR 38.04). In the case sub judice, the last pleading directed to any issue triable by jury was the answer filed by appellees on May 26, 2009. However, the motion for jury trial was not filed until October 20, 2009. As five months had passed between the filing of the answer and the motion for a jury trial, Creative Building s motion for a jury trial was untimely pursuant to CR 38.02 and CR 38.04. Thus, Creative Building waived its right to a jury trial. -5-
Consequently, we do not believe the circuit court erred by determining that Creative Building waived its right to a trial by jury and denying its motion for jury trial. Creative Building also asserts the circuit court erred by denying its Motion to Transfer the action to another division of Warren Circuit Court. In the motion and in its appellate brief, Creative Building argued that Circuit Judge John R. Grise was biased. In support thereof, Creative Building asserts that Judge Grise extended several courtesies to the pro se appellees including allowing them to file an answer outside the twenty-day period provided by CR 4.02. Creative Building further claims Judge Grise appeared to personally know appellee, Lesley Williams, as he referred to her as Les on three occasions. Creative Building also alleges that Judge Grise had been identified as a witness in a complaint filed against its counsel with the Kentucky Bar Association. Thus, Creative Building believes that the circuit court erred by denying its Motion to Transfer. The law in this Commonwealth is clear that a party seeking disqualification of a judge may do so by filing a motion with the presiding judge pursuant to Kentucky Revised Statutes (KRS) 26A.015 or by filing an affidavit with the clerk of the court pursuant to KRS 26A.020, whereupon the matter is submitted to the Chief Justice of the Supreme Court for consideration. Nicols v. Commonwealth, 839 S.W.2d 263 (Ky. 1992). In this case, the record reveals that Creative Building did not file an affidavit with the circuit clerk per KRS 26A.020. The only motion Creative Building filed was the Motion to Transfer, and in that motion, Creative -6-
Building set forth reasons supporting the alleged bias of the judge. Even if we treat the Motion to Transfer as a motion for disqualification, the basis for the motion was insufficient. The law regarding recusal of a judge is clear. KRS 26A.015(2) requires recusal of a judge if he/she has a personal bias or prejudice concerning a party... or has knowledge of any other circumstances in which his impartiality might reasonably be questioned. Bissell v. Baumgardner, 236 S.W.3d 24, 28 (Ky. App. 2007) (quoting KRS 26A.015(2)(a) and (e)). And, it should be noted that when seeking recusal of a trial judge the burden of proof is an onerous one. Id. at 29 (quoting Stopher v. Commonwealth, 57 S.W.3d 787, 794 (Ky. 2001)). To satisfy this onerous burden, it must be demonstrated that the facts are of a character calculated seriously to impair the judge s impartiality and sway his judgment. Id. at 29 (quoting Stopher, 57 S.W.3d at 794 (citations omitted)). A mere belief that the trial judge will not conduct himself or the trial in a fair and impartial way is not sufficient grounds for recusal. Id. at 29. In the case sub judice, Creative Building has failed to satisfy this onerous burden necessary for recusal. The mere fact that Judge Grise denied several of Creative Building s motions and that he was identified as a potential witness in a bar complaint against counsel does not demonstrate that his impartiality was impaired. As Creative Building has not alleged sufficient facts to demonstrate that Judge Grise has an actual bias or prejudice, we do not believe the onerous burden has been satisfied. A mere belief that Judge Grise would not conduct himself in -7-
a fair and impartial way is insufficient. Thus, we conclude that Creative Building s contention that the circuit court erred by denying its Motion to Transfer is without merit. Creative Building next contends that the circuit court erred by admitting into evidence pictures of the rental property, a video of the rental property, and the affidavit of a particular witness. Creative Building alleges that these evidentiary items were not disclosed by appellees in their pretrial disclosure. Alleged errors as to the admission or exclusion of evidence are reviewed under an abuse of discretion standard. Hawkins v. Rosenbloom, 17 S.W.3d 116 (Ky. App. 1999). If an abuse of discretion has occurred in admission of evidence, we must then decide whether the error was reversible, i.e., whether a reasonable possibility exists the outcome of the proceedings would have been different absent the error. Hawkins, 17 S.W.3d 116. And, the admission of incompetent evidence in a trial before the court without a jury is viewed as harmless error if the trial judge did not base his decision on that evidence, or if there was other competent evidence to prove the matter in issue[.] Prater v. Cabinet for Human Resources, 954 S.W.2d 954, 959 (Ky. 1997)(citations omitted). In the case sub judice, appellees proceeded pro se, and the case was tried before the court without a jury. While the admission of the above evidence may have constituted error, such error was undoubtedly harmless given the introduction of other evidence which formed the basis for the judge s decision. Thus, we cannot say that the admission of the above evidence constituted reversible error. -8-
Creative Building next alleges that the circuit court s findings of fact in the June 10, 2011, judgment were clearly erroneous. Creative Building specifically argues the circuit court erred by finding that appellees vacated the premises within a day or two after February 28, 2009, and by finding that the property was in reasonably good repair. Essentially, Creative Building argues that rent was due on the first day of each month and appellees personal property remained on the premises as late as March 8 or March 13; thus, appellees owed rent for March. Creative Building believes that the evidence plainly indicates that appellees owed $1,350 monthly rent for the month of March. Creative Building also argues that the vacated rental property was not in reasonably good repair and that the damages thereto were well above the circuit court s award of $500. Where the court contradicts a trial without a jury, the circuit court s findings of fact shall not be set aside unless clearly erroneous. CR 52.01; Bealert v. Mitchell, 585 S.W.2d 417 (Ky. App. 1979); Lofton v. Fairmount Specialty Ins. Managers, Inc., 367 S.W.3d 593 (Ky. App. 2012). A finding of fact is clearly erroneous if not supported by substantial evidence of a probative value. The appellate court must defer to the circuit court upon the weight and credibility of the evidence presented. Bealert, 585 S.W.2d 417; Lofton, 367 S.W.3d 593. In the case sub judice, Creative Building presented evidence that appellee s physically vacated the rental property on or about March 4 but left personal property at the rental property until March 7. Creative Building presented photographs allegedly demonstrating damage to the rental property beyond normal -9-
wear and tear of such property. However, the circuit court stated that Creative Building s photographs were of poor quality and only proved the existence of a hole under a window and a broken spindle on the banister. Moreover, appellees evidence established that the rental property was otherwise in good repair. And, although appellees left personal property at the rental premises until March 7, Creative Building removed the property from the premises and placed it into the garage. Creative Building then began getting the rental property in shape for the next tenant. Thus, we cannot say that the circuit court s findings were clearly erroneous or that the circuit court erred as a matter of law. Creative Building further maintains that the circuit court abused its discretion by awarding only $810 in attorney s fees. In support thereof, counsel for Creative Building points out that she submitted an affidavit supporting an award of $9,000 in attorney s fees. It is well-established that an award of attorney s fees is allowable when expressly provided by contract. See Batson v. Clark, 980 S.W.2d 566 (Ky. App. 1998). However, an award of attorney s fees lies within the sound discretion of the circuit court. Ford v. Beasley, 148 S.W.3d 808 (Ky. App. 2004). Such an award will not be disturbed on appeal absent an abuse of that discretion. Id. In this case, the lease agreement between the parties provided that in the event of default, the defaulting party agrees to pay the reasonable attorney s fees of the non-defaulting party. The circuit court originally awarded attorney s fees of $500 to Creative Building. Following Creative Building s motion to alter, amend -10-
or vacate, the court increased the award of attorney s fees to $810. As the court pointed out in its order amending the award of attorney s fees, the amended fee was approximately 35 percent of the total amount of the damages awarded. Considering that the lease agreement provided for a reasonable attorney fee, we do not believe the circuit court abused its discretion by finding that $810 in attorney s fees was reasonable. For the foregoing reasons, the Judgment of the Warren Circuit Court is affirmed. ALL CONCUR. BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEE. Nancy Oliver Roberts Bowling Green, Kentucky -11-