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Keeney v. Billy Trent Construction, LLC

Court of Appeals of Kentucky

August 9, 2019

RHONDA KEENEY AND ROBERT KEENEY APPELLANTS
v.
BILLY TRENT CONSTRUCTION, LLC APPELLEE

          APPEAL FROM SCOTT CIRCUIT COURT HON. PAUL F. ISAACS, JUDGE ACTION NO. 15-CI-00120

          BRIEF AND ORAL ARGUMENT FOR APPELLANTS: Douglas C. Howard, Frankfort, Kentucky.

          BRIEF AND ORAL ARGUMENT FOR APPELLEE: David A. Weinberg Lexington, Kentucky.

          BEFORE: DIXON, SPALDING, AND TAYLOR, JUDGES.

          OPINION

          SPALDING, JUDGE.

         This appeal arises out of a construction and building dispute between the appellants and the appellee. The agreement called for the appellee, Billy Trent Construction, LLC, to construct and remodel the appellants' garage and home. Specifically, the appellee was to provide all materials and work required to erect a garage and update, expand, and install handicap accessible rooms in the appellants' basement. In consideration thereof, the appellants were to provide the appellee with sixty-five thousand, nine hundred and seventy-one ($65, 971.00) dollars. This amount represents the total to be paid for all needed material and labor required to complete the job.

         The project began in March of 2014. It progressed slowly. The appellants claim that, on or about December 11, 2014, the appellee abandoned the project, taking its tools and the material purchased for the job with it. According to the appellants, at this time, much of the job was incomplete and the garage had been constructed improperly.

         As a result, the appellants filed suit on February 25, 2015. An answer and accompanying counterclaim were subsequently filed, and, thereafter, the parties engaged in a lengthy period of discovery.

         On March 26, 2018, a trial was initiated and counsel for the appellants delivered his opening statement, consisting of the following:

My name is Doug Howard. Briefly introduce myself. We have the opportunity to give you just a short opening statement and then we will get into some witness testimony. As you know, I represent Robert and Rhonda Keeney, they live here in Georgetown, they're hard working individuals, they both work, and at this point they have two children who are, actually three children who are special needs, and you're going to hear from today's testimony, that they decided to either upgrade to a different house, or make their current home more handicap accessible. You're going to hear how they selected Trent Construction to upgrade their current house, you're going to hear that the relationship was somewhat tumultuous between the parties, you're going to hear what happened, how it happened, and eventually what led to some complications, that led to the parties parting ways. We will let the witnesses and the evidence show you what their damages are to their home, we will let you see the damages, or hear from the witnesses and see from the damages, how much they are owed for the damages, and we just ask that over the course of the next several days you listen attentively. I appreciate your time, I appreciate your willingness to serve this morning on into the next couple of days and look forward to talking with you further. Thank you very much.

         After counsel for the appellants delivered his opening statement to the court and jury, opposing counsel moved for a directed verdict. The trial court sustained the appellee's motion and granted the parties a thirty (30) minute recess. During the recess, the appellants came to an agreement to resolve the counterclaim of the appellee. This agreement appears in the record as the agreed order of May 16, 2018. The agreement held that the appellants would pay an undisclosed sum to resolve the counterclaim of appellee in full but preserve its right of appeal in this matter as to appellants' claim.

         On April 5, 2018, the appellants filed a motion to alter, amend, or vacate, requesting the court vacate the directed verdict and declare a mistrial. Additionally, the motion requested the court, essentially, vacate the settlement agreement to which the parties had earlier agreed, arguing that said agreement was entered "under duress." The appellants' motion was denied, and this appeal followed.

         The appellants raise two (2) issues on appeal. Firstly, they argue that the trial court erred in granting the appellee's motion for directed verdict. Secondly, they contend that the settlement agreement regarding the appellee's counterclaim was entered "under duress" and that, "but for th[e] incorrect ruling" made by the trial court on the appellee's motion for directed verdict, the appellants would have never offered settlement in the first place and the trial court erred in not granting their motion to vacate the settlement.

         The first issue on appeal is, broadly speaking, whether a trial court may grant a directed verdict immediately following a party's opening statement. The appellee argues that the appeal should be dismissed because of the settlement agreement of the parties. However, the agreed order of May 16, 2018, specifically reserves appellants' right to file an appeal on the issue of directed verdict in paragraph (3). Appellee ...


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