Business Realty, Inc. v. Noah's Dove Lodge No. 20

• Decision Date: 25 October 1963
• Citation: 375 S.W.2d 389
• Parties: BUSINESS REALTY, INC., et al., Appellants, v. NOAH'S DOVE LODGE #20, etc., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 389

375 S.W.2d 389

BUSINESS REALTY, INC., et al., Appellants, v. NOAH'S DOVE LODGE #20, etc., Appellees.

Court of Appeals of Kentucky.

Oct. 25, 1963.

As Modified on Denial of Rehearing Feb. 14, 1964.

Davies & Hirschfeld, Newport, Ware & Ware, Covington, for appellants.

Thomas Hardesty, Newport, Turner & Jones, New Castle, for appellees.

CLAY, Commissioner.

This suit was brought against an adjoining landowner and a contractor to recover damages to a building caused by the removal of lateral support by excavation work. The jury returned a verdict for $26,200 (including $1200 punitive damages) and judgment was entered for 'the plaintiff Noah's Dove Lodge #20'. Appellant defendants assign nine different errors.

This case has several unusual features. The endless pleadings and motions are almost incomprehensible. There is really no dispute with respect to the basic liability of one or both of the defendants for the damage caused to the building. See 1 Am.Jur.2d, Adjoining Landowners, sections 44 and 45 (page 732). There is extended controversy concerning the real parties in interest and the nature and amount of damages.

Defendant Business Realty, Inc. owned real estate on West Sixth Street in Newport. Adjoining it is what is known as the 'Odd Fellows Hall'. The latter consists of three buildings erected at different times but according to the evidence they were so closely integrated as to constitute a single unit. The other defendant, Fredericks, doing excavation work for Business Realty, Inc., impaired the lateral support of one of the Odd Fellows' buildings, causing the walls, floors, and general structure to be substantially damaged.

Suit was brought by 'Noah's Dove Lodge #20, Encampment #12, Independent Order of Odd Fellows, By Its I. O. O. F. Hall Board Association'. Thereafter by pleadings and motions defendants raised the issue that the plaintiffs were not the real parties in interest and had no capacity to sue. This hardly seems open for debate. Admittedly the organizations named were voluntary associations. They are not legal entities and in Kentucky they cannot properly sue or be sued as such. Nichols v. Bardwell Lodge, No. 179, I. O. O. F., 105 Ky. 168, 48 S.W. 426, 6 Am.Jur.2d, Associations and Clubs, section 15; 39 Am.Jur., Parties, section 46. (Legislation rectifying this deplorable situation is needed. See Clay, CR 4.04(4), Comment.)

Apparently counsel for the nominal plaintiffs realized there was a defect of parties because a motion was made to add three individuals as party plaintiffs and as representatives of the voluntary associations and their members. These individuals were officers of the 'Odd Fellows Hall Association', which was alleged to be the same organization as the association to whom the property was originally deeded. The trial court entered an order making them parties plaintiff as representatives of 'Noah's Dove Lodge #20' and 'Odd Fellows Hall Association'. It seems obvious that since these persons were being made parties as representatives of a class under CR 23.01, they were representing the members of the organizations and the order adding their names as parties should have so provided. A peculiar twist in the case is that the judgment does not mention these individual party plaintiffs who, plaintiffs' counsel practically admits, are the only parties with the legal capacity to sue as representatives of a class. (Neither appellants nor appellees seem to be aware of the fact that the judgment does not include these essential parties.)

One of defendants' principal contentions on this appeal (which has been their contention throughout) is that the plaintiffs are not the real parties in interest and had no legal capacity to sue. This contention is well founded with respect to the two named voluntary associations. Their contention that the court improperly permitted the three individual plaintiffs to intervene is not well taken. They did not intervene under CR 24, but were added as party plaintiffs in a representative capacity in a class action under CR 23.01. As representatives of the members of the owning organizations, they would be the real parties in interest and would have the capacity to prosecute this suit....