Aep Industries Inc. v. B.G. Properties, Inc.

Opinion

RENDERED: SEPTEMBER 28, 201 i TO BE PUBLISHED

2014-SC-000512-DG [Q)~IJ~lcJ/tctfr-, ft,M f2ad""°"''~

AEP INDUSTRIES, INC. APPELLANT

ON REVIEW FROM COURT OF APPEALS v. CASE NO. 2013-CA-000132 WARREN CIRCUIT COURT NO. 12-CI-00467

B.G. PROPERTIES, INC. APPELLEE

OPINION OF THE COURT BY JUSTICE VENTERS · \I VACATING AND REMANDING

AEP Industries, Inc. (AEP) appeals from an opinion of the Court of

Appeals which vacated a final order of the Warren Circuit Court granting AEP's

motion for specific· performance of a real estate option contract between AEP

and B.G. Properties, Inc. (BG). The Court of Appeals held that the circuit court

granted specific performance ofthe option contract prematurely because

disputed issues of fact material to that form of relief had been left unresolved in

the 'circuit court. The Courtof Appeals remanded the matter for resolution of·

those issues. We granted discretionary review, and upon. review .we vacate the

opinion of the Court of Appeals and remand the action to the trial court with

direction to dismiss any remaining claims. I. FACTUAL AND PROCEDURAL BACKGROUND·

BG and its predecessor in interest owned an industrial building located

on a 19.7-acre tract in Bowling Green, Kentucky. The building had been used

for manufacturing flexible plastic packing products and contained features

uniquely suited to that purpose. AEP leased .the property from BG for use in

its business of manufacturing flexible plastic packaging. AEP arid BG were

mutUally obligated under several agreements concerning the property. Those

agreements provided AEP with an option to purchase the property.I

The specific terms of .the purchase option are provided in two documents:

the "Consent to Assignment of Lease and Grant of Option to. Purchase" made in

2001 and the "Agreement Modifying Sublease and Option" made iri 2010.

These two documents collectively provide the terms of AEP's option to purchase

·the property. We refer to those documents together as the "Option Agreement"·

or "the Agreement."

The Option Agreement expressly provided the following four-stage·

process for ascertaining the purchase price if AEP decided to exerci~e its

purchase option. First, the parties would attempt to negotiate a fair pur~hase

price. Second, if the negotiation failed to achieve a mutually agreeable-price, . . then BG would deliver to AEP an appraisal of the property by a qualified

1 More specIBcally, AEP subleased the property from a primary leaseholder and .certain of the· agreements were initially executed by the parties' respective predecessors in interest; however, these details are not relevant to our review.

2 . professional appraiser2 with thy app~aisal subject to. special requirements as

··further des~ribed below. Third, if AEP declined to purchase at BG's appraised

value, then AEP would obtain its own qualified appraisal a_nd subr_nit it to BG.

Fourth, arid finally; if BG rejected AEP's appraised vaiue~ then AEP's appraiser

. and BG's appraiser wol,Jld together selec_t a third appraiser whose independent

valuation of the property would become the fi:na1 purchase price. . . . The Option Agreement iricluded·two other terms that are significant in

our review: 1) every appraisal of the property undertaken to determine the

purchase price would ascertain "the fair market value based on its highest and

best use, plus the value of all special features and fixtures located therein for

AEP's use as an extrusion and flexible packaging manufacturing facility;" and

2) the Agreement granted AEP seven days after the final determination of the

purchase price under stage four to withdraw the exercise of its option tO

purchase the property.

In August 2011, AEP informed BG that it intend~d to exercise the option

to pU..rchas~ the property, thereby triggering the foµr-stage process for

determining the price .. The initial attempt to negotiate a purchase ·price was . . unsuccessful.· -BG then obtained an appraisal by Brantley Apprais;,tl . . ~. Company,.

which valued the property at $7,500,000 .. AEP rejected that price, and as

required by the Option Agreement, AEP then obtained its own appraiser,. - . . '

selecting CBRE, which valued the property at $3,550,000.

2 The. Option Agreement set forth particular .qualifications for the appraisers used.

I,' BG rejected CBRE's valuation. AEP then attempted to initiate the final

stage of the process; the s~lection of the third appraiser, but BG refused to

c~>0perate. BG claimed that AEP did not properly comply with the third stage of

the pricing process because the. CBRE appraisal tendered by AEP did not meet

the special conditions of the Option Agreement for a value based upon "the

highest and best use of the property" and for the inclusion of the "special

·features and fixtures located therein for AEP's use as an extrusion and flexible

packaging manufacturing facility." Accordingly, .BG insisted that before moving

. to the four.th stage of the pricing process~ AEP was obligated first to submit an

appraisal that complied with the special conditions of the Option Agreement.

Instead of acceding to BG's demand to submit a different appraisal, AEP

filed a.n'·action in the Warren Circuit Court alleging that BG was in breach of

the Option Agreement for failir:ig to proceed with the selection of the third

. appraiser . .AEP sought a court order compelling BG to participate in the

appointment of a third appraiser.

BG responded to th~ suit with an answer and counterclaim.· BG invoked , . the well-settled equitable principle that specific performance of a contract will

only be granted when the party seeking the .specific performance has itself

complied with all terms of the contract. To be granted specific performance of

an agreement·for the sale of real property, all conditions precedent to the sale

must have been complied with by the party seeking such specific performance.3

3 See 25 Williston on Contracts§ 67:73 (4th ed. 2013) ("The performance of all conditions precedent is generally required before specific performance will be 4 BG asserted that AEP's failure to submit a proper appraisal at the third stage

., of the pricing process was a breach of the Option Agreement by AEP that

barred its claim.for specific performance. BG .also claimed that in addition to

the disagreement·about the CBRE appraisal, AEP had also breached the

provision of the lease agreement requiring it to keep the roof of the building in

good repair. BG contended that the appraisals used to determine the purchase

price should not be discounted by the .deteriorated condition of the roof that

AEP had failed to maintain.

Evei;itually, upon motions for summaryjudgment, the circuit cou:rt

· determined that CBRE's appraisal complied with ~he conditions of the Option ·

Agreement. The court directed BG to proceed with the fourth stage of the

, appraisal process, the selection of the third and final appraiser. The circuit

court fixed a deadline for obtaining that appraisal and held the remainder of

the action in abeyance pending its completion. :lri compliance with the circuit

court's order, BG ~d AEP selected G. Herbert Pritchett as the third appraiser.

Pritchett valued the property at .$3~834,000. . . . '

AEP was satisfied with that price, but BG refused to transfer the

property, claiming that Prit.chett's appraisal suffered the same deficiency as

CBRE's appraisal: it failed to account for "the highest and best use of the

· property" as defined in the Option Agreement and it failed to factor in the

special features that made the property uniquely suited to AEP's

granted."); WestKy. Coal Co. ·v. J.D. Nourse, 320 S.W.2d 311 (Ky. 1959); Puritan . Homes, Inc. v. AbeU, 432 S.W.2d 632 (Ky. 1968).

5 manufacturing process, as set forth in. the Option Agreement. BG also

complained that Pritchett's appraisal unfairly diminished the value of the .

property due to the poor condition of the roof that AEP had failed to maintain.

AEP then moved the circuit court for an order compelling specific

performance of the Option Agreement by c:lfrecting BG to convey the property at

Pritchett's apprais~d value of $3,834,000. In addition, AEP demanded a credit

against the purchase· pnce of $407,987.37 for the additional rent payments it

had incurred under the lease due to BG's failure to voluntarily cooperate in the

selection of the third appraiser in a timely manner.4· BG.responded by

reiterating.its position that AEP had initia,lly breached the agreement by failing

to tender a qualifying appraisal and for that reason it could not demand

specific performance of the very contract it had breached.

By order dated December 19, 2012, the circuit cou_rt rejected BG's

arguments.· It determined that Pritchett's appraisal of the fair market yalue of

property at $3,834,000 properly accounted for the site's "special features and

fixtures" and was consistent with the terms of the Option Agreement and that

court's previous order. Th_e circuit court also concluded that the_ Pritchett

appraisal properly accounted for the "roof issu~" ~nd, therefore, no variance

~ from the appraised value was required to accommodate that concern. The .

4 But for BG's opposition to the appraisals, the transfer of property pursuant to th.e parties' Option Agreement, and th~ corresponding cessation of AEP's· re:r;it · obligation under the lease, would have occurred by June 1; 2012. The rent credit was calculated to compensate AEP for the additional rent paid between June 1, 2012 and the eventual transfer of the property on December 31, 2012.

6 : · ·circuit court also granted AEP's demand for a credit for the additional rental . .

payments incurred due to BG;s delaying the transfer ()f the property durip.g the

dispute .. The December 19, 2?12 order directed BG-to convey tne property to

AEP for the price fixed.by Pi-itchett's appraisal, $3,834,000.00. The circuit

court also awarded AEP claimed rent credit of $407,987.37, for a net payment ·

obligation of $3,426,012.63 due to BG.

Rathe.r than ~eeking immediate relief to abate the enforcement of the

- for what it' regarded a~ · order and thereby. avofd transferring the property

inadequate consideration, and rather than tendering a conditional deed stating·

the involuntary nature of the conveyance and resenring its objection to the .

.forced sale at an inadequate price, BG filed with the circuit court a "Motion for.

·. Approval of Deed Form ;. . and an Order Preserving '· Claims," tendering a

conventional general warranty deed for the unconditional transfer of the

property to AEP in fee ·simple for the stated consideration of $3A26,012.63~ s

AEP responded to BG's motfon, voicing no objection to the fa.rm of the

deed but vigorously opposing the entry of an order that would sanction the

trarisfer ·of title while l~aving the consideration to be paid for the property open

to appeal _and further litigation. AEP argued that a transfer of title leaving the

purchase pric'e .f~r later determination would viola.t~ AEP's righ~ under the

s It is worth noting that the purchase price as listed on the deed "is not consistent with th~ Pritchett appraisal value but instead directly incorporates the trial . court's ruling on the rent credit issue. The stated consideration equals the appraised value of the property minus the unrelated rent credit. The -effect of this anomaly has not been addressed by the parties, and we express no opinion upon it.

7 Option Agreement to reject the final price and walk away.from the option. AEP

argued that :SG's remedy was to seek a stay of the enforcement of the circuit

court order pending appeal.

The. circuit court entered an order approving the form of the deed but . .. otherwise denying·BG's requested relief.. The order was designated as fin.al and .

appealable pursuant to CR 54.02(1).

Immediately thereafter, BG executed the deed acknowledging the receipt

from AEP of the stated consideration of $3,426,012.63 for which BG did

expressly "bargain, alien, grant, deed, sell, and convey unto [AEP] in fee simple

[the subject property]." AEP promptly recorded the deed._ BG did not record a

lis pendens notice to signify its retention of ongoing l~tigative interest in the

property.

Before completing the transfer of the property, BG had neither asked tJ:ie

,<;:ircuit court to fix the amount of a supersedeas bond nor had it posted a

supersedeas bond. BG undertook no measures to forestall the transfer of the

property to ,AEP for the stated price of $3,426,0.12.63. Instead, after closing on

the transfer of the property, BG filed a notice of appeal seeking review of the

. circuit court's order awarding specific performance· of the Option Agreement.

Although BG presented the Court of /\ppeals wlth six allegations of error

germane to the disputed appraisal process and the valuation of the property, . . . BG requested no relief to negate the conveyance of the property .. BG did not

argue that the conveyance should be set aside or disturbed in any way other

than a re-assessment of the sales price.

8 The Court of Appeals vacated the circliit court's order ~nd remanded the. ·

'case for further proceedings, reasoning that the circuit court had not '

adequately addressed the threshold issue of whether, as alleged by BG, AEP

had first violated the Option Agreement with a faulty appraisal. and thus. was

barred frorri_ seeking specific performance. Citing this Court's decision in

DreamersLLCv. Don'sLumber&Hardware,1nc., 366 S.W.3d 381 (Ky. 2011), . . . . the Coµrt of Appeals rejected AEP's argument that BG's conveyance of the

property and acceptance of the corisideJ;"ation rendered moot the dispute over

the property's value.

We granted -discretionary review to examine whether BG can continue to ·

challenge the enforcement of the Option Agreement after it conveyed the

property to AEP by general warranty deed without reservation, and

·correspondingly accepted the stated consideration for the.transfer. We . '

conclude that it cannot. BG.'s execution and deiivery of a general warranty

deed without an express reservatio!l of rights and its acceptance of the stated

consideration foreclosed its optio~ to further challenge ~he enforcement of . .

Option Agreement. Accordingly, we reverse the. Court of Appeals.

II. ANALYSIS

For the reasons stated below, we conclude BG's execution and delivery ·of

. the .general warranty deed conveying the property to AEP in fee simple, without

qu.alification or condition, colipled with its u~conditional acceptance 'of the

. purchase prfoe renders the controversy moot. ·Assuming, as. BG contends, that

the circuit court erred. by granting specific performance of the Option

9 Agreement at the purchase price fixed by the Pritchett appraisal, then BG's

appropriate appellate remedy" would be the reversal of th~ circuit court's order ·

and the restoration of the parties to the status quo ante. Reversing the circuit

court's order would put the parties back in the circuit court to adjudicate" the

issues pertinent to establishing a purchase price for the execution of the . . .Option Agreement and allow them to litigate the collateral issues arising from.

the parties' lease. That relief is now unattainable because the property has

now been unconditionally soid: BG offers no argument seeking to unwind, or

nullify, that sale to restore the status quo ante. Moreover, ·BG's requested

· remedy is a chance to re-litigate upon remand o.nly the purchase price of the

. property without nullifying the conveyance. That result does not restore the

status quo ante because it eliminates AEP's contractual right to withdraw from

the purchase within seven days if it objects to the final price.

BG did noi preserve its objections to the trial court's order of specific

performance of the Option Agreement by posting- a supersedeas bond pursuant

to CR. 62.03, CR 73.04,.. and CR 73.06. Nor did BG avail itself of an alternative .

means of staying the order by seeking immedi.ate relief from the Court of

Appeals,staying the matter.pending appellate review. Instead, BG transferred

the property. As we held in Green Valley Environmental Corp. v_.. Clay, citing

Section 111 of Kentucky's Constitution,6 the Court of Appeals has the power

6 In pertinent part, Section 111 of the Kentucky Constitution provides: "The Court of Appeals ... may issue all writs necessary in aid of its appellate jurisdiction, or the complete determination of any cause within its appellate jurisdiction."

10 "to grant a stay pending appeal in order to maintain the ·status quo of the case

pending before it on review." 798 S.W.2d 141, 143-144 (Ky. 1990) (citing ·,

Crady v. Cranfill,-371S.W.2d640 (Ky. 1963)). In summary, BG sought none of

the available remedies· that would have enabled it to avoid the immediate

enforcement of the trial court's order and defer, at least temporarily, the

conveyance of the property for what it regarded as an _improperly determined

pnce.

While not dispositive·, the opinions of our predecessor Court in Rose .v,

Cox; 179 S.W.2d 871 (Ky. 1944), and Sedley v. Louisville °rrust Co., 419 S.W.2cl

531,_532 (Ky. 1967), are instructive even though they contain important factual

differences. Those cases establish that when property is sold to a third party 1

pursuant to a judicial sale ordered by the trial court, in the absence of a

supersedeas bond or other st~y of execution, a subsequent determination by . . an appellate court that the order directing the sale was erroneous does not void

the sale. "Where the court has jurisdiction qf the parties and the subject

matter of the suit, and has statutory authority to decree the sale, a subsequent ,

reversal of the judgment decreeing the sale is a mere declaration that the

judgment is erroneous, but does not render it void." Rose, 179 S.W.2d at 872.

"The fact that the judgment qrdering the sale ·of the property" was not

superseded prevents us from grant;ing [the Appellant] the relief t~ which she is . . allegedly entitled" and the case is thereby moot. Sedley, 419 S.W.2d at 533.

Obviously, the instant case does not involve a sale to a third party.

However, upon review ~f authority from.other jurisdictions that have more

11 precisely addressed the issue before us, we are persuaded that the same result . . . . . - is compelled under the circumstances that confront us here.

For example, in Dahlin v. Amoco Oil Corp.,.567 N.E.2d 806 (Ind. App.

1991), the Dahlins. leased a parcel of land to Amoco Oil. The lease also gave

Amoco the option to purchase the property under certain conditions. Amoco

exercised its option to purchase the Dahlins' land. Wheri the Dahlins refused .

to convey the land, Amoco filed an action for specific performance. The

Dahlins counterdaimed for breach of contract and unjust enrichment. The

trial court granted surrimary judgment for Amoco on its specific performance . .

claim; thereafter, the Dahlins sold the real estate to Amoco. Addressing the

Dahlins' argument on appeal that ~e trial" court erred by granting summary

judgment·on Amoco's specific performance claim, the Indiana Court of Appeals

stated as follows:

If a party to a judgment voluntarily acquiesces in or recognizes the validity of such judgment or otherwise takes a position which would be inconsistent with apy theory other than the validity of the judgment, he has impliedly waived his right to contest the va.J.idify of the judgment on appeal. ·

Id. at 809.

The Dahlins' conveyance of the property to Amoco was inconsistent with

their appellate positiqn that the order compelling specific performance was

erroneous. "By eleCting instead to sell the property, they have waived their

right to argue on app~al that the ·specific performance decn:~e was invalid and

unenforceable, and therefore their appeal on this issue iS moot." Id. at 810.

12 Similarly, in Schuppener v. Bnmo, .395 So.2d 1234 (Fla. Dist. App. 1981),

the contractual purchasers of land. sued for and obtained a judgment ordering

specific performance of the contract directing the sale of the ·prop~~ty. The

sellers appealed, but while the .appeal was pending, th_e sellers accepted the

purchase price and recorded the. purchaser's mortgage on the ·property in

question. The Florida court held that "[u]ilder th~se circumstances, the issues

· in [this] appeal ... appear fo us to be moot." Id. at 1235.

·our review of the_unusual circum~tances of this case is also guided and

influenced by the strong principles of law that accord a measure of sanctity to

the language of deeds and other written and recorded instruments of title. "As

the deed wa~ ackriowledged and lodged for record ·the day it bears date, it was . . ' . constructive notice to the whole world in whom the legal title was vested." Ott . . . . . . . v. Ott's Administrator, 2 Ky. Op. 114 (1867); 7 see Haven v.. Wallc~ce, 160 S.W.2d . . . .

619, 622 (Ky. 1942) ("This deed was of record and constituted constructive

notice to the world that appellant had retained this right or reservation in and

to.the rentals on the land/'); Wells Fargo Financial Kentucky, Inc. 'v. Thomer,

315 s·.W.3d 335, 338-3_39 (Ky. App. 2010) ("A recorded mortgage serves the . " ·purpose of establishing the lender's 'interest in the land that .secu~es the debt

and notice to the world of the lien created thereby."). Significant legal

consequences· flow from the language used to convey interests in real property,

7 1867 wi. 3569 at *1 (Ky .. Nov. 21, 1867).

13 and because the deed gives "notice to the world," its effects extend beyond the

limited interests of the parties.

The words of the deed are so important that, upon its delivery and ·

acceptance, the deed "extinguishe~ or supersedes the provisions of the

underlying contract for the conveyance of the realty." ·Drees Co. v. Osburg, 144

S.W.3d 831, 832 (Ky. App. 2003) (citation omitted). Borden v: Litchford, 619

S.W.2d 715, 717 (Ky. App. 1981) reflects the nearly-universal principle that the . . "merger .doctrine holds that all prior statements and agreements, both written · -

and oral, are ·merged into the deed and the partie"s are bound by that

instrument." Subject to limited exceptions which are not applicable here,

the acceptance of a deed tendered in performance of an agreement to convey merges the written or _oral agreement to convey in the deed, ~d, thereafter, the provisions. of ~e underlying contract governing the transfer of the property are extinguished and the deed regulates the rights and liabilities of the parties.

77 Am._Ju:t. 2d Vendor and Purchaser§ 227 (2017). As there is a presumption·

of merger u,pon the delivery and acceptance of the deed, contrary intentions of

the parties must be clear and manifest and may be shown from the terms of

the deed itself. See Vernon v. Vernon, 277 S.W·. 248, 248 (Ky. 1925) ..

There is no doubt that the merger doctrine would control the· issue if BG

had simply transferred the property pursuant to the _terms of the Option

Agreement without the interv~ntion of the circuit court order. We see no

r~ason for departing from the doctrine when the transfer resulted from a court

order enforcing the terms of the Option Agreement.· In either case, any

unresolved conditions ansing from the contract or the court order could . . be

14 preserved by incorporation into the deed. In that respect, it is significant that

the circuit co~rt did not dictate the.terms of the deed. Although at BG's.

request the· circuit court approved the form of the deed, BG prepared the deed.

and completely controlled its terms and conditions. BG could have preserved

its objection to the consideration by referencing that fact, along with the

pending litigation, in the deed. Iristead, the deed contains no limitation or

reservation.about the consideration to be paid for the property; and it contains

·. no reference to the terms of the option contract for establishing. the fair market.

value of the property. M.ost significantly, it incorporates no language. to signify

that the transact1o~ is anything-other than. a corripl~ted, arm's length

.transaction between a willing buyer and willing seller for a mutually agreed-

upon consideration. Consistent with the merger doctrine, all else outside of the

four corners of the deed relating to the purchase ' . . price of the property was '

merged .into the deed.

The Cou~t of Appeals substantiaily based its decision on Dreamers LLC v.

Don's Lumber & Hardware, Inc., 366 S.W.3d 381 (Ky. 2011). We said in

Dreamers: ' . . It has lorig been the law in Kentucky that 'a party .... does not need to post a supersedeas bond to take ari appeal .from a · judgment,' though '[t]he failure to post a bond ... leaves the party who obtained the judgment free to· execute on it.'

Id: at 384 (quoting-Elk Hom Coal Corp. v. Cheyenne Resources, Inc.,' 163 S.W.3d . ~ . . . · 408, 419-420 ,(Ky. 2005)). We held that. the judgment-debtor did not forfeit its

right tQ ·appeal by paying the mohey to the plaintiff in lieu of posting a

supersedeas bond or suffering an exe~utioJ1 on the judgment pending appeal. 15 BG contends that its compliance with the judgment compelling specific

performance of the real estate' option contract should be treated the same.

BG's position is if it successfully established on. appeal that AEP ~as not

entitled to specific performance . of the. Option . Agreement, then all that would be

required is another round of appraisals to determine the purchase price. · That

interpretation, however, is incorrect. It overlooks the fact that reversing the

order that compelled specific performance of the Option Agreement must also

invalidate the deed conveying title because the need to re-determine the

purchase price also revives AEP's contractual right to decline the purchase if it

dislikes the final price.

Dreamers involved a monetary judgment; the res awarded by the

judgment was a fungible sum of money. As to that res Dreamers holds that a

defendant subject to an adverse money judgment may, instead of purchasing a

supersedeas bond to cover the payment of his debt and avoid attachment or.

garnishment of his property, as well as the accrual of expensive post-judgment

· interest, simply pay the judgment without forfeiting his right of appeal. Of

course, by doing so, the defendant accepts the risk that, upon reversal of the

judgment, the. plaintiff may have disbursed the money and be unable to refund

it. Either way, the parties are generally indifferent to the specific .cash that

funds the payment and re-payment; and in most situations, the exchange ·

involves no tangible _money at all, b.ut simply checks or electronic transfers

from one account to another.

16 In.contrast, however, here the res subject to the order compelling specific ,

performance is real estate. The res in dispute is not a fungible quantity of _·.

_money; it is uniquely tangible land. Historically, ·laws governing the transfer

and exchange of land differ fundamentally from the laws governing the

.exchange of cash or its electronic equivalent. See, for example, Baroi v.

Platinum Condominium Development, LLC, 874 F. Supp. 2d,980, 984 .. (Nev. . Dist. .

2012) (~Nevada will enforce contractual obligations through the remedy of specific performance where appropriate, particularly in real estate transactions.

because real property is 'unique,' and damages therefore may be an-inadequate

remedy~"); In re Arnold and Baker Farms, 177 B.R. 648, 661 (Bankr. App. 9th

Cir. 1994) ("each parcel of real property is unique"); Consolidated Rail Corp. v.

Michigan, 976 F. Supp. 1085, 1089· (W.D. Mich. 1996) ("[I]nterferenc:;e with the

enjoyment or possessiOn of land is considered 'irreparable' since land is viewed

as a unique commodity for which monetary compensation is an inadequate

substitute."). ·The merger doctrine is itself an example of how the law applies

special precautions to the conveyance of land that are not appli~able to. the

transfer· of mqney. These differences are reason enough to_ distinguish the rule

as stated in Dreamers from the situation before us iri this case. ·

We further reject the notion implied by the Court of Appeals that

requiring the posting of a supersedeas boi:id to stay a court-ordered conveyance

of land would deprive a litigant of the right guaranteed by Section 115 of the

17 Kentuc~ Constitution to appeal from an adverse judgment. 8 The prospective

appellant in any case may ~pursue the constitutionally-mandated right to

appeal without posting a supersedeas bond. The bond does not impinge upon

the right of appeal; the bond, when posted by an appellant, stands as a

collateral . obligation~ acknowledging the dignity of the judgment . . . in recognition -

of the fact that the appellant is depriving the appellee _of the benefits. of the

judgment pending the finality of the appellate process.·

· III. · CONCLUSION For the foregoing reasons, the opinion of the Court of Appeals is vacated~

BG's counterclaim and amended counterclaim asserted claims that a price

adjustment was warranted as a result of AEP's alleged primary and continuing .

breach of the. Option Agreement, the allegedly faulfy appraisal of CBRE, AEP's

alleged failure to maintain the roof of the building, and AEP;s alleged br~acl~ of

the duty of good faith and fair dealing. We are satisfied that BG's faih;i,re to

preserve its objections··to the Circuit court's final order by superseding it with

an appropriate bond or obtaining a stay of its enforcement, coupled with the

completion of the transaction and the application of the merger doctrine, ·

··precludes any further relief sought by BG. Accordingly, we remand this action

. . s Kentucky Constitution ·section 115 provides; in pertinent part "In ·all cases,· civil and criminal, there $hall be allowed as a matter of right at least one appeal to another court . : . .'?

18 to the, Warren .. Circuit Court with- directions to dismiss the counterclaim. and.

amended counterclaim ..

· All sitting.. All concur.

. COUNSEL FOR APPELLANT:

Glenn Alan Cohen Seiller Waterman, LLC Meidinger Tower, 22nd Floor 462 S. Fourth Street Loi.iisville, KY 40202

Paul Joseph Hershberg Gray & White 713 E. Market Street 2nd Floor Louisville, KY 40202 .

Jason Conti Foley & Lardner, LLP 500, Woodward Avenue, Suite 2700 Detroit, MI 48226 ·

.COUNSEL FOR APPELLEE:

David W. Anderson · Michael Scott Vitale English,, Lucas, Priest & Owsley, LLP · 1101 College Street P.O. Box 770 Bowling Green, KY 42102~0770