Coy TURNER, Jr. and M & W Milling Co., Inc., Appellants,
Billy ANDREW, Jr., Appellee.
John William Walters, Langdon Stites Ryan, Lexington, Counsel for Appellants.
Danny Butler, Greensburg, Counsel for Appellee.
Coy Turner, Jr. and M & W Milling Co., Inc. (collectively " M & W), appeal from a Court of Appeals decision reversing a judgment of the Adair Circuit Court granting them a " judgment on the pleadings." The judgment dismissed the underlying action brought by Billy Andrew, Jr., seeking personal property damages and lost business income resulting from a vehicle collision. The vehicle damaged in the collision was a truck owned by Andrew individually and used in a trucking business operated by the limited liability company " Billy Andrew, Jr. Trucking, LLC." The trial court's dismissal of Andrew's suit was a direct consequence of Andrew's repeated failure to comply with discovery orders. On appeal, M & W contends that (1) the Court of Appeals erred by concluding that the lawsuit was properly brought by Andrew in his individual capacity, despite the fact that the trucking business was operated by the LLC; and (2) the Court of Appeals erred in reversing the trial court's orders excluding Andrew's damages evidence and dismissing his claim. We conclude the Court of Appeals erred in determining that Andrew was entitled to bring a claim in his own name for any trucking business lost by the LLC. Therefore, we reverse that portion of the decision. We further conclude that the discovery sanction imposed on Andrew, specifically the exclusion of all evidence relating to Andrew's damages, was the functional equivalent of an order dismissing both claims. As such, findings of fact and conclusions of law were required pursuant to Greathouse v. American Nat. Bank and Trust Co., 796 S.W.2d 868, 870 (Ky.App.1990). Accordingly, we vacate the remainder of the Court of Appeals Opinion and remand this matter to the trial court for further proceedings consistent with this Opinion.
On April 16, 2007, Coy Turner was driving a feed-truck owned by his employer, M
& W Milling, when a movable auger mounted on the vehicle swung loose into oncoming traffic, striking and seriously damaging a dump truck owned by Billy Andrew. The damaged truck was one of seven dump trucks owned by Andrew and operated by " Billy Andrew, Jr. Trucking, LLC." The LLC, of which Andrew was the sole member, was formed in January 2006, fifteen months prior to the accident. Andrew filed suit against Turner and M & W Milling in January 2008 claiming personal property damage to the truck as well as the loss of " income derived from the use of said motor vehicle owned by [Andrew] and used in the conduct of [Andrew's] business." The LLC was not named as a plaintiff in the lawsuit.
About eight weeks after the complaint was served, M & W filed interrogatories and requests for production seeking information from Andrew relating to his claim. Although responses to those requests were due within thirty days, Andrew failed to respond. Sixty-six days after the discovery requests were served, M & W filed a motion to compel Andrew to respond. A second motion to compel was filed eighteen months later. In that motion, M & W asserted that Andrew had failed to produce tax records for a five-year period; financial documents and calculations pertaining to the earnings derived from the use of the truck involved in the accident; and all documents showing customers of the trucking business from 2005 through 2007. Following a hearing, the trial court granted the motion and ordered Andrew to produce the requested documents by September 17, 2009. The records were not produced. On September 24th, M & W filed a motion to dismiss Andrew's claim pursuant to Civil Rule (" CR" ) 37.02(2)(c) on the basis that Andrew failed to comply with discovery requests and the order to compel. No ruling was made on the motion.
On October 5, 2009, M & W made two motions for summary judgment, one relating to the property damage, and the other relating to lost business income. The motion for summary judgment on the lost income claim focused on Andrew's repeated failure to respond to discovery requests as to lost business and the fact that any lost business claim belonged to the LLC and not Andrew individually. In the motion seeking summary judgment on the property damage claim, M & W asserted that Andrew had failed to produce any evidence concerning the amount of damage to the truck. The motion further stated that if the court did not grant summary judgment on the property damage claim, then it should enter an order limiting the amount that Andrew was entitled to recover to $22,820.41, an amount that M & W claimed was the cost of repair of Andrew's truck based on an estimate prepared at the behest of M & W's insurer. The trial court entered an order granting the motion for summary judgment as to the lost business income and capping Andrew's claim for property damages at $22,820.41. Thereafter, Andrew filed a motion to alter, amend or vacate the order. Although the trial court's ruling on this motion does not appear in the record, it is apparent that the motion was granted as litigation continued.
On October 22, 2009, M & W made an Offer of Judgment in the amount of $22,820.41, pursuant to CR 68 on Andrew's
property damage claim. There is no evidence of record that Andrew responded to that offer. About a month later, M & W filed a motion in limine to exclude any evidence of lost business income attributable to the out-of-service truck as well as any evidence of property damage to the truck. M & W contended that Andrew failed to comply with the trial court's discovery order and produced no tax or business records pertaining to the relevant time period. They further asserted that the LLC was the only party that could pursue the lost income claim as the real party in interest. The trial court granted the motion. Thereafter, M & W moved for a judgment on the pleadings pursuant to CR 12.03 arguing that " no evidence can be introduced at the ...