MID-SOUTH DRYWALL, INC. APPELLANT
BRYANT ROAD, LLC; AND THE BRISTOL GROUP, INC. APPELLEES
FROM FAYETTE CIRCUIT COURT HONORABLE ERNESTO SCORSONE, JUDGE
ACTION NO. 09-CI-05917
FOR APPELLANT: Michael R. Eaves Richmond, Kentucky
FOR APPELLEES 2001 BRYANT ROAD, LLC; AND BRISTOL GROUP, INC.:
Darren J. Duzyk Lexington, Kentucky
BEFORE: COMBS, DIXON, AND J. LAMBERT, JUDGES.
LAMBERT, J., JUDGE.
Drywall, Inc., appeals from the Fayette Circuit Court's
granting of summary judgment to 2001 Bryant Road, LLC, and
The Bristol Group, Inc. Mid-South also appeals from three
subsequent orders entered by the circuit court in this
litigation. We affirm.
Fayette Circuit Court's September 10, 2014, order
granting partial summary judgment succinctly lays out the
factual background of this litigation, and we repeat it here:
Bristol worked as the Design-Builder for the construction
project known as the Hyatt Place Hotel (the
"Project") owned by Bryant Road. Bristol entered
into a subcontract agreement with Mid-South Drywall to
provide materials and services for the interior framing and
drywall portion of the Project. Mid-South was unable to
finish its portion of the Project, citing GC
Interiors' abandonment of
its work and Project mismanagement on the part of Bristol as
Litigation began when GC Interiors filed suit against
Mid-South for nonpayment and against Bryant Road to enforce a
mechanic's lien filed on the Project. Mid-South filed a
counterclaim against GC Interiors for breach of contract.
Bristol was eventually brought into the litigation and
Mid-South asserted a breach of contract claim against
Bristol. Bristol has filed a Counterclaim and Bryant Road has
filed a Cross Claim against Mid-South for breach of the
Bristol and Bryant Road allege that Mid-South breached
several of the Subcontract's provision[s] and argue that
any one of these defaults entitles them to summary judgment
as a matter of law. Their primary argument is that Mid-South
failed to perform as required by the Subcontract and failed
to remedy the default. Bristol and Bryant Road point to Mid
South's Answers to GC Interiors' Interrogatories in
which Mid-South admits that it defaulted on its obligations
to the Project because GC Interiors abandoned the Project.
Bristol and Bryant Road argue that these admissions alone
entitle them to summary judgment. They further argue that,
even without the admissions, the record establishes Mid-South
defaulted on its obligation to properly man the Project.
Alternatively, Bristol and Bryant Road claim that Mid-South
committed multiple other breaches of the subcontract that
entitle them to summary judgment.
Mid South's position is that this case is not ripe for
summary judgment because there are still issues of material
fact. It maintains that the record indicates that Mid-South
has continually disputed Bristol['s] and Bryant
Road's claims that it defaulted on the Subcontract.
Mid-South further argues that the Court should not dispense
with its claims based on discovery answered before Bristol
was a party to the lawsuit.
circuit court, in that order, found in favor of Bristol and
Bryant Road on the issue of liability but reserved the issue
of damages for trial. The circuit court entered an order
clarifying on November 12, 2014, an order granting
Bristol's motion to alter, amend, or vacate on March 3,
2015, and another order clarifying and adding finality
language on May 7, 2015. Bristol and Bryant Road elected not
to pursue their claims for damages incurred by
Mid-South's breach. But Mid-South appealed from the four
first argues that it is "entitled to recover for work
performed under its contract even if it is the breaching
party." In so arguing, Mid-South concedes that it is the
breaching party yet insists that the trial court erred in
denying Mid-South the opportunity to present evidence of its
damages. Mid-South insists that the proper remedy in this
situation is to allow it to recover "for the work it
performed subject to a just offset by Bristol Group for
damages which it sustained as a result of the breach by
Mid-South." It is also Mid-South's contention that
"nearly 80% of the contracted work" was complete.
the record nor Kentucky case law supports any of
Mid-South's claims in this regard. The record clearly
demonstrates (and Mid-South does not contend otherwise) that
Mid-South was compensated for $375, 617.97 of the contract
price of $729, 490.00. Mid-South abandoned the job on July
28, 2008, after receiving no less than six notices of
deficiencies (in quality of work and scheduling defaults)
from Bryant Road. "When a contract is not performed, the
party who is guilty of the first breach is generally the one
upon whom rests all the liability for the
nonperformance." Hall v. Rowe, 439 S.W.3d 183,
187 (Ky. App. 2014) (quoting Blue Diamond Coal Co. v.
Robertson235 Ky. 425, 427, 31 S.W.2d 701, 703 (1930)).
See also Fay E. Sams Money Purchase Pension Plan v.
Jansen, 3 S.W.3d 753, ...