Roscoe v. Angelucci Acoustical, Inc., 2012-CA-001933-MR AND NO. 2014-CA-000536-MR

• Decision Date: 17 February 2017
• Docket Number: NO. 2012-CA-001933-MR AND NO. 2014-CA-000536-MR,2012-CA-001933-MR AND NO. 2014-CA-000536-MR
• Citation: 512 S.W.3d 730
• Parties: Kale ROSCOE, Appellant v. ANGELUCCI ACOUSTICAL, INC., Appellee
• Court: Kentucky Court of Appeals

512 S.W.3d 730

Kale ROSCOE, Appellant

v.ANGELUCCI ACOUSTICAL, INC., Appellee

NO. 2012-CA-001933-MR AND NO. 2014-CA-000536-MR

Court of Appeals of Kentucky.

FEBRUARY 17, 2017; 10:00 A.M.

BRIEF FOR APPELLANT: John E. Davis, Lexington, Kentucky.

BRIEF FOR APPELLEE: Ernest H. Jones, II, Jamie Wilhite Dittert, Lexington, Kentucky.

BEFORE: COMBS, J. LAMBERT, AND THOMPSON, JUDGES.

OPINION

LAMBERT, J., JUDGE:

Kale Roscoe is the appellant in these cases stemming from a construction subcontract with Angelucci Acoustical, Inc., for the completion of the University of Kentucky (UK) Coldstream Campus building now known as the Hewlitt-Packard building. Roscoe appeals from a 2012 Fayette Circuit Court summary judgment wherein the trial court pierced the corporate veil and assessed liability versus Roscoe in Angelucci's favor. The 2014 appeal is from the circuit court's judgment granting Angelucci's cross-claim for sanctions for Roscoe's failure to comply with a post-judgment discovery order. Finding no error, we affirm in both appeals.

The facts and procedural history of these combined appeals are well known to the parties and will only be repeated as is necessary to the understanding of this opinion. In so doing we shall begin with a simplified chronological summary of the legal interactions of the parties. On June 14, 2006, Lexhold Partners II Lot 14-A Exclusive, LLC (Lexhold Partners), was awarded the contract to undertake and complete the construction of a building at 810 Bull Lea Run in Lexington, Kentucky. UK owns the land upon which the building was constructed. The approximately 50,000 square foot building is currently leased by Hewlitt-Packard; Lexhold Partners holds the lease.

Lexhold Premiere Commercial Contractors, LLC (Premiere), was the general contractor for the project. Premiere was formed solely for the purpose of constructing the Hewlitt-Packard building, and it ceased to exist at its completion. Premiere had no other projects, assets, or clients. Kale Roscoe was one of two managing partners of both Partners and Premiere.¹

On March 30, 2007, Premiere and Angelucci Acoustical, Inc. (Angelucci), entered into a subcontract for Angelucci to install drywall and to construct and install acoustical ceiling throughout the Hewlitt-Packard building. The contractual price between Premiere and Angelucci was $396,240.30. The building was completed in late 2007, and the tenant accepted the premises in December of that year, with a temporary certificate of occupancy issued the following month. However, Angelucci continued to complete a number of additional tasks after that date at Premiere's request.

Because of numerous change orders throughout but especially near the end of the building's construction, Angelucci incurred an additional $88,053.70 in costs, which Roscoe refused to pay (claiming the additional work consisted of merely punch list items). Therefore, on June 17, 2008, Angelucci filed claims for breach of contract, unjust enrichment, and a mechanic's lien (Fayette Circuit Court No. 08-CI-02977) versus Premiere, Lexhold Partners, and Roscoe. Two other subcontractors intervened in that suit, seeking unpaid balances due them as well. A fourth subcontractor filed its separate suit (No. 08-CI-04362), naming all other subcontractors (there were eight subcontractors in total, including Angelucci) that had filed mechanics' liens as well as Roscoe, Oliver, Lexhold Partners, and Premiere. In April 2009 Angelucci's action (which by then included cross-claims against Premiere, Lexhold Partners, and Roscoe) was transferred and consolidated with Civil Action No. 08-CI-04362.² The circuit court granted Angelucci's later motion to amend the complaint to include claims for fraudulent misrepresentation and concealment against Premiere, Lexhold Partners, and Roscoe.

The circuit court granted partial summary judgment in favor of Angelucci on October 29, 2010, awarding it $88,053.70 plus post-judgment interest "as allowed under the law." Roscoe's motion to alter, amend, or vacate was denied on December 20, 2010. Although rendered final and appealable, Roscoe did not appeal from those orders.

In a later ruling, on October 3, 2012, the trial court granted Angelucci's motion to pierce the corporate veil, finding that Roscoe was individually liable, and held that Angelucci's mechanic's lien versus Roscoe was valid. In so doing, the Fayette Circuit Court considered the Kentucky Supreme Court's recent ruling on that subject, Inter-Tel Technologies, Inc. v. Linn Station Properties, LLC , 360 S.W.3d 152 (Ky. 2012).

Roscoe appealed from the judgment (No. 2012-CA-001933-MR) on November 5, 2012, but he failed to post a supersedeas bond to stay the enforcement of the circuit court judgment. Thus, during the pendency of that appeal, and in an effort to collect the judgment awarded it, Angelucci sought a charging order and an asset discovery deposition.

Various motions, responses, and orders ensued. Roscoe failed to meet the deadlines for discovery; he sought and was granted a continuance for the deposition scheduled on January 8, 2014. On January 15, 2014 (the date of the rescheduled deposition), after arriving an hour late, and with a limited number of the documents requested and ordered in response to the subpoena duces tecum, Roscoe interrupted his deposition and asked to go off the record to explore settlement possibilities. The parties negotiated terms of the settlement, which were reduced to writing, signed by the parties and counsel present, notarized, and entered into the record, namely: By close of business ten days hence, Roscoe was to pay Angelucci $30,000.00 in exchange for dismissal of all pending legal action. If not paid by that date, Roscoe agreed that Angelucci could "seek all available remedies for satisfaction." Roscoe failed to perform the terms of the settlement; the record does not contain a request for an extension of time to pay.

The circuit court conducted two hearings in these cases thereafter: The first was held on February 26, 2014, after which the circuit court held Roscoe in contempt. The second hearing, held on March 4, 2014, consisted of witness testimony and the introduction of documentary evidence for Angelucci, as well as arguments of counsel for both parties. Roscoe did not attend either hearing, nor did his counsel present testimony (except through cross-examination of Angelucci's witnesses). The circuit court issued its ruling on that same date, finding that Roscoe had failed to purge himself of contempt³ and assessing a total of $334,785.34 in damages (both compensatory and punitive) and attorney fees due Angelucci. Roscoe appealed (No. 2014-CA-000536-MR).

Roscoe raises nine arguments in his two appeals; we are also asked to address a pending motion, raised at the appellate level, concerning the late filing of Roscoe's combined reply brief. At the risk of being repetitive, we shall consider each appeal separately, but take up the matter of the pending motion first since it affects the filing of Roscoe's reply brief.

At the request of Angelucci and with the agreement of Roscoe, the appeal in No. 2012-CA-001933-MR was stayed in an effort to reconcile these matters. When settlement failed, the consolidated appeals moved forward, and Roscoe filed separate appellant briefs, per this Court's order of July 15, 2014, for each of them. Angelucci's combined brief was filed on December 12, 2014, and Roscoe's combined reply brief was due fifteen days later (again, pursuant to this Court's order). By motion dated January 9, 2015, Roscoe requested additional time to file the reply brief. It was tendered on January 22, 2015, but lacked the proper margin required under CR 76.12(4)(a)(ii). Roscoe's corrected reply brief was tendered on February 24, 2015, but it exceeded the page limitation set forth in CR 76.12(4)(b)(i). A second corrected reply brief was tendered on March 6, 2015.

Angelucci moved this Court to strike Roscoe's reply brief or in the alternative "for leave to give notice to panel deciding the merits of these consolidated appeals that Roscoe's references to matters outside of the record are incorrect." Roscoe's response to this motion was filed late. He was then given additional time in which to respond, and his tendered reply brief was ordered filed. The Court of Appeals passed ruling on Angelucci's motion to strike or in the alternative motion for leave to give notice to the merits panel. We deny Angelucci's motion to strike Roscoe's reply brief. Although we agree with Angelucci that Roscoe has requested and received multiple extensions of time throughout this process, our consideration of the reply brief, regardless of its content, does not affect the outcome of these appeals. Therefore, we shall deny Angelucci's motion to strike and the alternative motion by separate order.

Turning then to the first appeal, we shall consider Roscoe's four arguments, beginning with his assertion that the circuit court erroneously granted partial summary judgment in Angelucci's favor. Roscoe insists that there were genuine issues of material fact and no demonstration of impossibility of prevailing at trial. Kentucky Rules of Civil Procedure (CR) 56.03 ; Steelvest, Inc. v. Scansteel Service Center, Inc. , 807 S.W.2d 476, 483 (Ky. 1991) ; Pace v. Burke , 150 S.W.3d 62, 64 (Ky. App. 2004). Roscoe contends that the circuit court "cherry picked and mischaracterized a few facts to justify its decision while ignoring the numerous facts which proved that Appellant did nothing to cause a wrong sufficient to justify the decision reached."

"The appellate review of a summary judgment decision involves the de novo examination of the issues of law as applied to the record. Caniff v. CSX Transp., Inc., 438 S.W.3d 368, 372 (Ky. 2014)." Admin. Office of Courts v. Miller , 468 S.W.3d 323, 327 (Ky. 2015). We have examined the voluminous record in its entirety, including the depositions and hearings held, and cannot agree with this assertion.

The circuit court...