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Ison v. Robinson

Court of Appeals of Kentucky

September 20, 2013

JUNE ISON, EXECUTRIX OF THE ESTATE OF ROY CAMPBELL APPELLANT/CROSS-APPELLEE
v.
RICKY ROBINSON; TONIA ROBINSON; ROBINSON AND HICKS CONSTRUCTION, INC.; DAVID SIZEMORE; VALERIE SIZEMORE, MARK D'ONOFRIO; KRISTI D'ONOFRIO; TERRY NORTH; KIM NORTH; RIZWAN ALI; SHAHEEN ALI; CLARICE W. WALLACE; HOWARD FELTNER; PHYLLIS FELTNER; AND JERRY WYRICK APPELLEES/CROSS-APPELLANTS Cross-Appeal Nos. 2010-CA-000945-MR, 2010-CA-001619-MR

APPEALS AND CROSS-APPEALS FROM PERRY CIRCUIT COURT HONORABLE RON JOHNSON, SPECIAL JUDGE ACTION NO. 99-CI-00134

BRIEFS FOR APPELLANT/CROSS-APPELLEES: Charles Allen Hazard, Donald Duff Frankfort, Kentucky

BRIEFS AND ORAL ARGUMENT FOR APPELLEE/CROSS-APPELLANTS: D. Eric Lycan, Lexington, Kentucky

ORAL ARGUMENT FOR APPELLANT/CROSS APPELLEES: Donald Duff Frankfort, Kentucky

BEFORE: COMBS, NICKELL, AND TAYLOR, JUDGES.

OPINION AFFIRMING

TAYLOR, JUDGE:

June Ison, Executrix of the Estate of Roy Campbell, brings a direct appeal from a judgment entered by the Perry Circuit Court on February 22, 2010, confirming an arbitration award in favor of Ricky Robinson, Tonia Robinson, Robinson and Hicks Construction, Inc., David Sizemore, Valerie Sizemore, Mark D'Onofrio, Kristi D'Onofrio, Terry North, Kim North, Rizwan Ali, Shaheen Ali, Clarice W. Wallace, Howard Feltner, Phyllis Feltner, and Jerry Wyrick (hereinafter collectively referred to as appellees) (2010-CA-000898-MR). Appellees cross-appeal from that judgment on the issue of whether the circuit court should have awarded prejudgment interest at the rate of 12 percent per annum from the date of the original arbitration award entered January 16, 2004 (2010-CA-000945-MR).[1] Additionally, June Ison, Executrix of the Estate of Roy Campbell, further appeals a subsequent order entered by the Perry Circuit Court on July 12, 2010, which again confirmed the arbitration award and further denied various Kentucky Rules of Civil Procedure (CR) 59 motions that had been made after the original judgment was entered February 22, 2010 (2010-CA-001490-MR). This order also denied any prejudgment interest to appellees on the award.[2] Appellees cross-appeal, asserting that they are entitled to prejudgment interest from the date of the arbitration award, as originally ordered (2010-CA-001619-MR) on January 16, 2004. Apparently the parties were concerned with a "calendar" order entered by the circuit court at the hearing on the CR 59 motions on April 9, 2010, which facilitated the filing of the first appeal and cross-appeal. While this Court has substantial doubt as to whether the calendar notations made by the Perry Circuit Court on April 9, 2010, constituted a final judgment as required under Kentucky Revised Statutes (KRS) Chapter 417, et seq., and CR 54.01, the parties have, nonetheless, properly perfected their appeals and for judicial economy this Court has considered all of the appeals together.

BACKGROUND

This action was commenced in 1999 for alleged damages to real property and other damages as subsequently asserted in various amendments to the complaint. In August of 2003, the parties entered into a binding arbitration agreement that referred this matter to an arbitrator to resolve all disputes in a final and binding arbitration proceeding. As stated, the original arbitration award was granted January 16, 2004. This arbitration award was vacated by the Perry Circuit Court by order entered April 16, 2004, which was subsequently appealed to this Court in Appeal No. 2004-CA-000936-MR. In an unpublished opinion rendered by another panel of this Court on February 24, 2006, we vacated the circuit court's April 16, 2004, order and remanded to the Perry Circuit Court for further proceedings consistent therewith.[3] Specifically, our earlier opinion (2004-CA-000936-MR) vacated and remanded the arbitration award as follows:

[G]iven our inability to ascertain the basis of the circuit court's ruling and the concerns noted above, we believe that it is appropriate in this case to vacate the court's order and remand this matter for further consideration consistent with KRS 417.160, 3D Enterprises, [Contracting Corp. v. Lexington-Fayette Urban County Government, 134 S.W.3d 588 (Ky. 2004)] and this opinion.

Subsequently, the orders entered in 2010 by the Perry Circuit Court on remand confirmed the original arbitration award entered January 16, 2004, resulting in the appeals now before this Court.

As noted, this case arose from a claim for alleged damages to real property as a result of the actions of appellant Roy Campbell.[4] The relevant underlying facts of this case were developed in particular detail by this Court in its earlier opinion (2004-CA-000936-MR) and are restated here as follows:

Appellants [now appellees] are either developers or homeowners in the Apple Ridge subdivision, a residential mountainside community built on a mine bench above Highway 80 in Perry County, Kentucky. Appellants [now appellees] Ricky and Tania Robinson and Robinson & Hicks Construction Company, Inc. (hereinafter "RHCC") purchased the Apple Ridge property from Appellee Roy Campbell for the purpose of building a residential subdivision thereon. Campbell continued to own the property directly below Apple Ridge and, after the sale, he began excavating his property for its own development. This excavation allegedly undermined the slope of the mountainside, resulting in damage to the Apple Ridge development.
Specifically, Appellants [now appellees] allege that the removal of the subjacent support for the slope caused it to collapse in places and to sink several feet, resulting in damage to the Apple Ridge homes and to Apple Ridge Lane (the only access road to the development) and a decrease in the value of the remaining undeveloped property. Appellants [now appellees] further allege that damage continues to this day, as the slope continues to slide and sink. Appellants [now appellees] also note that an investigation by the United States ...

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