Birchwood Conservancy v. United Bhd. of Carpenters
| Decision Date | 28 October 2011 |
| Docket Number | NO. 2009-CA-001413-MR,2009-CA-001413-MR |
| Parties | BIRCHWOOD CONSERVANCY, A CALIFORNIA CORPORATION, AUTHORIZED TO DO BUSINESS IN KENTUCKY AS A FOREIGN CORPORATION; LUCINDA CHRISTIAN, INDIVIDUALLY AND AS PRESIDENT OF BIRCHWOOD CONSERVANCY; EVAN BLAKENY, INDIVIDUALLY AND AS TREASURER OF BIRCHWOOD CONSERVANCY; AND ROBERT CHRISTIAN, INDIVIDUALLY APPELLANTS v. UNITED BROTHERHOOD OF CARPENTERS APPELLEE |
| Court | Kentucky Court of Appeals |
TO BE PUBLISHED
APPEAL FROM SCOTT CIRCUIT COURT
Birchwood Conservancy is a California corporation authorized to do business in Kentucky, and the successor-in-interest to Birchwood Conservation Center, an unincorporated association.1 Birchwood operates a farm in Scott County, Kentucky. Its principals, Lucinda Christian and Robert Christian, are dedicated to caring for rare breeds of domesticated animals, horses in particular.
The Union is an unincorporated association of carpenters.
In 2003, Birchwood sought the help of the Union to demolish an existing barn, reconstruct it in a different location, and build a new barn in the location of the original one. Ike Harris, a Union member and employee, agreed to organize Union membership to carry out this project. The Public Broadcasting Service was filming a documentary on the rare animal conservancy, and the barn's demolition and reconstruction were to be a significant part of the film.
The project began as planned, but a series of delays arose, and the project progressed slowly. As construction stalled, so did production of the documentary. Birchwood's principals began to worry for the safety of the animals, so Union volunteers constructed some smaller shelters with less capacity than the barns which were originally planned. Several animals died, allegedly because they
lacked adequate shelter. Birchwood brought suit seeking damages from the Union.
From the filing of the complaint until the entry of the order from which this appeal is taken, this case presents a convoluted procedural history. Our proper review necessarily requires a rather full exposition of that history.
On September 21, 2004, Birchwood filed suit in Scott Circuit Court as the unincorporated association, Birchwood Conservation Center, alleging the Union breached a contract to construct and demolish the barns. The complaint contended alternatively that because the Union induced Birchwood to rely upon its promise to build the barns, the Union should be estopped from failing to do so.
Birchwood indicated in the caption of its complaint that David Tharp of Indianapolis, Indiana, was the Union's agent to be served with process. Tharp was the Union's executive secretary and treasurer. The Clerk of the Scott Circuit Court issued summons and sent the summons and complaint to the Office of the Kentucky Secretary of State by certified mail where it was received on September 23, 2004. The Secretary of State then sent the summons and complaint to the Union in care of David Tharp, via certified mail, restricted delivery, return receipt requested. The summons and complaint were received by the Union's agent who signed for it on September 30, 2004.
Tharp or some other agent of the Union engaged legal counsel and, on October 12, 2004, the Union made a general appearance, filing an answer that denied the existence of a contract, denied that the Union made any representations to Birchwood about when the work would be completed, and denied that its actions caused Birchwood harm.
The Union asserted no affirmative defenses identified in Kentucky Rules of Civil Procedure (CR) 8.03. Nor did the Union "raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity" either by "specific negative averment" or otherwise. CR 9.01.2 The Union also asserted no defense identified in CR 12.02, including the defense of lack of personal jurisdiction set forth in CR 12.02(b).
On January 6, 2005, with leave of court, Birchwood filed a First Amended Complaint. The amended complaint added Ike Harris as a defendant. The allegations relating to Harris, his agreement on behalf of the Union to demolish and rebuild barns, and his conduct consistent therewith, according to Birchwood, "identifie[d] the services the Carpenters Union contracted to provide[.]" The claims against the Union itself remained as in the original.
Legal counsel representing both the Union and Ike Harris filed a joint answer to the first amended complaint. This time the Union asserted a generic defense under CR 12.02(f) that "[t]he Complaint as amended fails to state a claim or cause of action against the defendants herein and should therefore be dismissed." The Union and Harris also asserted certain affirmative defenses, noneof which are relevant to our review.3 Again, however, neither the defense of lack of personal jurisdiction pursuant to CR 12.02(b) nor the defense of lack of capacity pursuant to CR 9.01 was pleaded on behalf of either the Union or Harris.
The parties then began discovery. After five months, the Union filed a motion for summary judgment. The sole ground for the motion was the absence of any genuine issue as to the material fact that the alleged contract between the Union and Birchwood was not supported by any consideration.
More than a year and a half passed before the circuit court ruled on the motion; all the while, the parties continued to engage in significant discovery including the taking of several depositions and exchanging sets of interrogatories.
On February 9, 2007, the circuit court denied the Union's motion for summary judgment. Despite agreeing with the Union that "there was no consideration on Birchwood's side of the agreement[,]" the court denied the summary judgment motion in its entirety "because of Birchwood's promissory estoppel theory."4 The circuit court also stated that it "recognizes the dispute is between the Union and Birchwood." The court dismissed Harris from the action sua sponte. The issues of the Union's capacity and the court's exercise ofjurisdiction were not placed before the court and, therefore, were not addressed.
A month later, on March 16, 2007, after Union member Harris was no longer a party, the Union filed a motion stating, "It has recently been brought to my attention [that is, the attention of counsel for the Union] that an unincorporated association, such as a labor union, cannot sue or be sued in the name of the association." The motion sought to dismiss Birchwood's complaint on three grounds: (1) that under CR 12.02(f) the complaint "fails to set forth a claim or cause of action against the defendants"; (2) that under CR 12.03 the Union was entitled to judgment on the pleadings themselves; and (3) that under CR 56 the Union was entitled to judgment as a matter of law because there were no genuine issues as to any material fact that the Union was an unincorporated association. However, the Union did not frame the argument in terms of its lack of capacity. Instead, it argued that its status as an unincorporated association "creates a jurisdictional defense which can be raised at any time[,]" although it did not base the motion on CR 12.02(a) or (b).
CR 12.08(1). Three days later, "[w]ithout directly engaging these [waiver] arguments, the Union followed up with a motion to file an amended answer in which the jurisdictional defense is asserted." (Opinion and Order, May 16, 2007).
The Union's proposed amended answer responded to Birchwood's amended complaint, but did not respond on behalf of Ike Harris because he already had been dismissed from the action sua sponte. The amended answer did not deny the substantive allegations, but only asserted that the circuit court "lacks jurisdiction over the subject matter and the person" of the Union, and that "[t]he plaintiff lacks standing or authority to file or maintain an action[.]"
In response to the Union's claim that Birchwood lacked standing, Birchwood filed a "Motion to Substitute Party Plaintiff" simultaneously with its response to the motion to dismiss. The substitute party plaintiff was to be Birchwood Conservancy, a California corporation.
On May 16, 2007, without addressing Birchwood's motion to substitute the party plaintiff, the circuit court resolved the Union's two motions (to amend its answer and to dismiss) by stating: (Opinion and Order, May 16, 2007).
On May 25, 2007, Birchwood filed a timely motion to alter, amend or vacate the court's May 16, 2007 order dismissing its complaint.6 Birchwood argued that dismissing its complaint, after two-and-a-half years of discovery, based on Birchwood's lack of standing was "not warranted" considering the ease...
To continue reading
Request your trial