EDGAR A. STOWE, D/B/A ED'S AUTO, APPELLANT
REALCO LIMITED LIABILITY COMPANY, APPELLEE
FROM GREENUP CIRCUIT COURT HONORABLE ROBERT B. CONLEY, JUDGE
ACTION NO. 10-CI-00826
FOR APPELLANT: Dwight O. Bailey Flatwoods, Kentucky.
FOR APPELLEE: Laura L. Mays, Kristen K. Orr Lexington,
BEFORE: JONES, MAZE, AND NICKELL, JUDGES.
A. Stowe, d/b/a Ed's Auto ("Stowe"), appeals
from the Greenup Circuit Court's April 8, 2015, order
which concluded he breached the terms of a commercial lease
agreement, found the provisions of KRS 383.160 did not
apply, and granted summary judgment in favor of Realco
Limited Liability Company ("Realco"). Following a
careful review of the record, the briefs and the law, we
April 1, 2008, Realco and Stowe entered into a one-year lease
agreement for a commercial building located in Ashland,
Kentucky. The lease explicitly stated the option to renew was
intentionally omitted. Nevertheless, on January 22, 2009, the
parties entered into an amendment of the lease extending the
term for an additional year but leaving all other terms and
conditions unaltered. The amended term was to expire on March
31, 2010. The lease agreement contained a provision related
to the failure to vacate at the expiration of the lease term,
which stated as follows:
23. Holding Over. If at the expiration of the Term
or Renewed Term Tenant continues to occupy the Premises with
or without Landlord's consent, the tenancy under this
Lease shall become month to month, at 200% of the total
monthly rental payable by Tenant during the immediately
preceding twelve month period, terminable by either party on
thirty (30) days written notice. The Tenant shall be subject
to all other of the conditions of the previous Lease
excepting the rent and term thereof and shall be further
subject to any changes which Landlord has given Tenant in
writing during any thirty (30) day period for the following
thirty (30) day period.
end of the term, Stowe did not vacate the premises.
16, 2010, Realco informed Stowe in writing it was terminating
the lease effective August 31, 2010, pursuant to its rights
under Section 23 of the lease agreement. On July 12, 2010,
Realco informed Stowe it had not received his rental payment
for July and demanded immediate payment including a late fee.
On August 4, 2010, Realco notified Stowe once more of the
termination date, the continued delinquency of July's
rent and late fee, and gave notice of the failure to receive
rent for August. Another letter was sent approximately one
week later demanding immediate payment for all past due
rents. Additional letters demanding payment and vacation of
the premises were sent over the following weeks. Stowe failed
to respond to the communications, did not tender payment of
any amounts due, and refused to vacate the leased premises.
Realco filed a forcible detainer action seeking to have Stowe
ousted from the premises for his breach of the terms of the
lease and refusal to voluntarily leave. On October 4, 2010,
the trial court granted Realco's request and gave Stowe
seven days to vacate. Stowe left that same day.
filed the instant action on December 8, 2010, seeking payment
of unpaid rent and a judgment for its damages occasioned by
Stowe's breach of the terms of the lease agreement.
Realco was initially granted default judgment but the trial
court granted Stowe's motion to vacate the default and
permit the matter to proceed in the normal course. Stowe
answered the complaint and filed a counterclaim for damages
resulting from Realco's alleged breach of the lease
agreement and other wrongdoings related to its dealings with
Stowe. After a period of discovery and motion practice, Stowe
moved for summary judgment on his counterclaim and sought a
ruling the lease term had been extended to March 31, 2011, by
operation of KRS 383.160. The trial court denied the motion,
explicitly holding the statutory provisions of KRS 383.160
were inapplicable and the "hold-over" language of
paragraph 23 of the lease controlled. In subsequently denying
Stowe's untimely motion to reconsider, the trial court
specifically reaffirmed its reasoning for the previous
then moved for summary judgment alleging it was undisputed a
valid and enforceable contract existed, Stowe breached the
contract, and Realco sustained damages resulting from the
breach. In response, Stowe alleged factual disputes existed
and again urged the court to find KRS 383.160 applicable,
relying on the same arguments and authorities previously
presented. Shortly thereafter, Stowe filed a motion "to
apply KRS 383.160(1)" parroting his earlier filings and
adding no new arguments or authority. The trial court granted
summary judgment in favor of Realco upon again specifically
concluding KRS 383.160(1) was inapplicable and finding Stowe
breached a valid and enforceable lease. Stowe's
subsequent motion to alter, amend or vacate, premised on his
continued reliance on application of KRS 383.160, was denied.
This appeal followed.
presents three allegations of error in seeking reversal.
First, he contends the trial court erred in refusing to apply
KRS 383.160. Second, he argues the trial court's ruling
on interpretation of the lease and application of KRS 383.160
directly contravenes the holding of Masterson v. DeHart
Paint and Varnish Co., 843 S.W.2d 332 (Ky. 1992).
Finally, Stowe alleges summary judgment was improvidently
granted. We disagree and affirm.
initial matter, we note Stowe's failure to comply with
76.12(4)(c)(v) which requires "a statement with
reference to the record showing whether the issue was