England v. Spalding, WASH-O-RAM
| Court | United States State Supreme Court (Kentucky) |
| Writing for the Court | STEINFELD |
| Citation | 460 S.W.2d 4 |
| Parties | James E. ENGLAND and Robert W. Smith, Appellants, v. George E. SPALDING, Jr. and R. D. Johnson, Appellees. James E. ENGLAND and Robert W. Smith, Appellants, v. RADCLIFF, Appellee. |
| Decision Date | 20 November 1970 |
| Docket Number | WASH-O-RAM,INC |
Page 4
v.
George E. SPALDING, Jr. and R. D. Johnson, Appellees.
James E. ENGLAND and Robert W. Smith, Appellants,
v.
RADCLIFF WASH-O-RAMA, INC., Appellee.
Page 5
Paul M. Lewis, Hatcher & Lewis, Elizabethtown, Lawrence S. Grauman, Louisville, for appellants.
Harold K. Huddleston, Huddleston & Van Zant, Elizabethtown, for appellees.
STEINFELD, Judge.
This is an appeal from a judgment dismissing a claim for back rent, denying specific performance asserted to force compliance with a contract involving the sale of real estate and dismissing certain counterclaims. We affirm.
James E. England and Robert W. Smith, owners of land leased to Radcliff Wash-O-Rama, Inc. for a five-year term with the right of renewal for a like period, sued their tenant for two months' unpaid rent in the total amount of $600. The tenant denied owing the rent and asserted a counterclaim for damages in the amount of $3,000 claiming that England and Smith had failed to build a road as provided in the lease. George E. Spalding, Jr. and R. D. Johnson were principal stockholders and directors of Wash-O-Rama.
In another action England and Smith sued Spalding and Johnson alleging that they had entered into a contract with them to purchase the real estate leased to Wash-O-Rama and that they had failed to comply with the terms of the purchase contract. They demanded damages in the sum of $1,000 and specific performance. Spalding and Johnson counterclaimed for $15,000 alleging that England and Smith had '* * * breached the conditions of the contract entered into between the parties * * *'.
The two cases were assigned for trial at the same time and while there was no formal order directing that they be tried together, after the trial the court noted of record that 'these cases were heard together, as they involve substantially the same parties and the same property.' The trial court entered one judgment dismissing both actions. England and Smith have appealed--there is no cross-appeal. Spalding and Johnson and Wash-O-Rama have moved to dismiss the appeal in the suit against Wash-O-Rama claiming that the amount in controversy in that action is below the jurisdictional amount required by KRS 21.060. Appellees also contend that the 'Order and Judgment' appealed from was not a final order as it did not dispose of the counterclaims.
The two cases involved the same real estate and directly or indirectly the same parties. The alleged sale of the property was subject to the lease to Wash-O-Rama. One judgment disposed of all claims and counterclaims. We hold that the appeal as to Wash-O-Rama was jurisdictionally permissible and should not be dismissed.
The judgment entered on December 7, 1967, provided:
'These cases having been consolidated for purpose of trial and the court being duly advised it is ordered and adjudged both actions be and they are dismissed with prejudice at the cost of plaintiffs to which ruling plaintiffs object and except.'
This judgment followed by one day the entry of an opinion and order in which the trial judge directed that orders be prepared dismissing all claims and counterclaims. On December 12, 1967, England and Smith filed notice of appeal from that judgment (CR 73.02(2)) and designated the December 7, 1967, judgment as the act from which they were appealing. At the same time they served and filed a designation of record. CR 75.01. Four days later they moved '* * * the court to amend the Order and Judgment entered * * * on December 7, 1967, * * * to include therein: 1. a provision denying both defendants counterclaims, and 2. fixing therein the jurisdictional amount in controversy in excess of $2,500.'
Page 6
An amended judgment was entered on December 26, 1967, providing:
'1. All counterclaims in the above styled cases are hereby dismissed with prejudice at defendants' cost.
2. It is hereby adjudged that all claims in both of the above actions and all matters in controversy pertaining thereto exceed the sum of $2,500.00.
This is a final order and same should be entered forthwith and there is no just cause for delay, to all which plaintiffs object.'
A second notice of appeal was filed on January 4, 1968, from the '* * * judgment entered herein dated December 7, 1967, and further appeal * * * from the amended judgment entered herein dated December 26, 1967.' No subsequent designation of record was filed or served and the statement of appeal filed pursuant to RCA 1.090 specifies that:
'The judgment appealed from was entered on December 7, 1967, and may be found on page 27 of the Record on Appeal.'
The December 7, 1967, judgment is recorded on page 27 and the amended judgment is found on page 33 of the record.
In support of its contention that the appeal was improperly taken appellees cite Hoy v. Newburg Homes, Inc., Ky., 325 S.W.2d 301 (1959), and a number of other cases but each of those authorities dealt with a notice of appeal (CR 73.02(2)) and not a statement of appeal. RCA 1.090. They are inapplicable.
RCA 1.090 is designed to assist this court in processing records and compliance is not jurisdictional. The December 26, 1967, judgment was not complete in itself but was merely an addition to the December 7, 1967, judgment and was designed to clarify an inadvertent omission. We do not consider the failure of appellants to specify in their statement of appeal the supplemental judgment entered December 26, 1967, as being fatal to the appeal. Stevens v. Coleman, 311 Ky. 313, 224 S.W.2d 149 (1949).
The lese was entered into on November 6, 1964, for a term beginning the following month. It provided that the owners would build a blacktop access road 31 feet wide from Highway 31W to Wilson Road but it was silent as to when this road was to be constructed. Only a rocked road served the car-wash building constructed by Wash-O-Rama. In May 1966 Wash-O-Rama abandoned the property and refused to pay additional rent. The owners contend that if they constructed the road at any time during the lease they would fulfill their obligations but the tenants insist that the owners were required to complete the road within a reasonable time and that having failed to do so their business was materially damaged and they had the right to terminate the lease and claim damages. The trial court noted that seventeen...
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Evitts v. Lucey, No. 83-1378
...counsel, and the trial judge, the date of judgment, the date of notice of appeal, and additional information.1 See England v. Spalding, 460 S.W.2d 4, 6 (Ky.1970) (Rule "is designed to assist this court in processing records and compliance is not jurisdictional"). Respondent's counsel failed......
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Miles v. State, No. 07-89-0177-CR
...records, and was not jurisdictional in nature. Evitts v. Lucey, 469 U.S. at 389, 105 S.Ct. at 832, 83 L.Ed.2d at 825; England v. Spalding, 460 S.W.2d 4, 6 2 See also Gomez v. State, 763 S.W.2d 583 (Tex.App.--Corpus Christi 1988, no pet.); Robertson v. State, 760 S.W.2d 836 (Tex.App.--Austin......
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Hunt Enter., Inc. v. John Deere Industrial Equip., No. 3:96CV-822-S.
...or contemporaneous oral agreements which would vary or contradict the terms of the parties' written agreement. See England v. Spalding, 460 S.W.2d 4 (Ky.1970) and KFC Corp. v. Darsam Corp., 543 F.Supp. 222 (W.D.Ky. 1982). There are, however, three exceptions to this rule as Hunt points out.......
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Vicknair v. State, No. 01-85-00050-CR
...for the "statement of appeal" is to assist the court in processing the appeal, but compliance is not jurisdictional. England v. Spalding, 460 S.W.2d 4, 6 (Ky.1970). For such failure to comply, the Court of Appeals dismissed the appeal, which disposition was affirmed by the Kentucky Supreme ......
-
Evitts v. Lucey, No. 83-1378
...counsel, and the trial judge, the date of judgment, the date of notice of appeal, and additional information.1 See England v. Spalding, 460 S.W.2d 4, 6 (Ky.1970) (Rule "is designed to assist this court in processing records and compliance is not jurisdictional"). Respondent's counsel failed......
-
Miles v. State, No. 07-89-0177-CR
...records, and was not jurisdictional in nature. Evitts v. Lucey, 469 U.S. at 389, 105 S.Ct. at 832, 83 L.Ed.2d at 825; England v. Spalding, 460 S.W.2d 4, 6 2 See also Gomez v. State, 763 S.W.2d 583 (Tex.App.--Corpus Christi 1988, no pet.); Robertson v. State, 760 S.W.2d 836 (Tex.App.--Austin......
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Hunt Enter., Inc. v. John Deere Industrial Equip., No. 3:96CV-822-S.
...or contemporaneous oral agreements which would vary or contradict the terms of the parties' written agreement. See England v. Spalding, 460 S.W.2d 4 (Ky.1970) and KFC Corp. v. Darsam Corp., 543 F.Supp. 222 (W.D.Ky. 1982). There are, however, three exceptions to this rule as Hunt points out.......
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Vicknair v. State, No. 01-85-00050-CR
...for the "statement of appeal" is to assist the court in processing the appeal, but compliance is not jurisdictional. England v. Spalding, 460 S.W.2d 4, 6 (Ky.1970). For such failure to comply, the Court of Appeals dismissed the appeal, which disposition was affirmed by the Kentucky Supreme ......