Baciomiculo, LLC v. Nick Bohanon, LLC

498 S.W.3d 790, 90 U.C.C. Rep. Serv. 2d (West) 707, 2016 Ky. App. LEXIS 147, 2016 WL 4487696
CourtCourt of Appeals of Kentucky
DecidedAugust 26, 2016
DocketNO. 2015-CA-001654-MR
StatusPublished

This text of 498 S.W.3d 790 (Baciomiculo, LLC v. Nick Bohanon, LLC) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baciomiculo, LLC v. Nick Bohanon, LLC, 498 S.W.3d 790, 90 U.C.C. Rep. Serv. 2d (West) 707, 2016 Ky. App. LEXIS 147, 2016 WL 4487696 (Ky. Ct. App. 2016).

Opinion

OPINION

KRAMER, CHIEF JUDGE:

Baciomieulo, LLC, appeals an order of the Jefferson Circuit Court summarily dismissing its claim of conversion against Nick Bohanon, LLC, and Nick Bohanon (collectively “the Bohanon Defendants”). Following careful review, we reverse and remand.

Much of the history of this case was summarized by the circuit court’s aforementioned order and judgment. We quote the relevant part of that history as follows:

Plaintiff, Baciomieulo, LLC (“Plaintiff’), is the owner of certain tower crane and construction hoist component parts (the “Equipment”). Beginning in March 2011, Ardis E. Greenamyer II (“Greena-myer”), as a member of Hi-Rise Equipment, LLC, permitted Plaintiff to store the Equipment at his unimproved commercial real estate, located at 12500 Avoca Road, Louisville, Kentucky (the “Avoca Property”).
On or about January 4, 2011, PBI Bank, Inc. (“PBI Bank”) filed a foreclosure action against Greenamyer in Jefferson Circuit Court, Case No. ll-CI-400069, with respect to the Avoca Property. According to the case file for the foreclosure action, Greenamyer was allegedly not personally served and, thus, did not defend such action. PBI Bank instead allegedly attempted to constructively serve Greenamyer by way of a warning order. Such warning order, however, allegedly incorrectly identified Greena-myer as “Ardis E. Greenamyer III.” On or about January 26, 2012, PBI Bank assigned its mortgage on the Avoca Property to Defendant; Lakeland Capital West TV, LLC (“Lakeland”), by way of an Assignment filed in Deed Book 9832, Page 310 in the Office' of the Jefferson County Clerk. By Order, entered March 7, 2012, Lakeland was substituted as the foreclosing party in the PBI Bank foreclosure action. At such time, however, Lakeland had assigned the Avoca Property mortgage to Fidelity Bank of Texas by way of an Assignment filed in Deed Book'9838, Page 65 in the Office of the Jefferson County Clerk.
Lakeland allegedly obtained ownership of the Avoca Property following a judicial sale in August 2012, by virtue of a certain Commissioner’s Deed, dated January 23, 2014 and recorded on February 20, 2014 at Deed Book 10206, Page 66 in the Office of the Jefferson County Clerk. Lakeland allegedly was aware of the presence of the Equipment on the Avoca Property as early as July 2013, and made no effort to ascertain the identity of the owner of the Equipment. Lakeland allegedly did not obtain either an Order of Possession or Forcible De-tainer Judgment which dispossessed Greenamyer and any occupants of their possession in the Avoca Property after the entry of the January 23, 2014 Commissioner’s Deed. Further, Lakeland allegedly did not notify Greenamyer or any other occupant to vacate the Avoca Property or make a demand to remove the Equipment after the entry of the January 23, 2014 Commissioner’s Deed. Lakeland allegedly contracted with the Bohanon Defendants to undertake the [792]*792removal of the Equipment from the Avo-ca Property.[FN] By contract, dated February 24, 2014, the Bohanon Defendants were to remove all of the Equipment, pay Lakeland $10,000, and keep the proceeds of the sale of the scrapped material of the Equipment. Sometime prior to March 9, 2014, the Bohanon Defendants allegedly entered upon the Avoca Property and removed the Equipment. .The Bohanon Defendants contracted with Defendant, River Metals Recycling, LLC (“River Metals”), which allegedly took possession of the Equipment, scrapped the Equipment and paid the Bohanon Defendants for the scrapped Equipment.
[FN], In the Complaint, Plaintiff alleges that Lakeland contracted with River Metals prior to March 10, 2014, with respect to the removal and disposition of the Equipment from the Avo-ca Property, and that River Metals contracted with the Bohanon Defendants. The contract attached to the Bohanon Defendants’ Motion for Summary Judgment reflects that Lake-land contracted with the Bohanon Defendants.
On or about May 19, 2014, Plaintiff filed the Complaint in this action against Lakeland, River Metals and the Boha-non Defendants, alleging that the above actions constituted a conversion of the Equipment, and that they undertook the above actions with oppression, fraud and/or reckless disregard for Plaintiffs rights in the Equipment justifying an award of punitive damages. Lakeland, River Metals and the Bohanon Defendants each filed an Answer.
The Bohanon Defendants ma[de] a Motion for Summary Judgment, contending that there remain no genuine issues of material fact and they are entitled to judgment as a matter of law, as they are a good faith purchaser for value of the Equipment and have therefore acquired either good title or voidable title, under KRS [Kentucky Revised Statutes] 355.2-403, over the Equipment; that the Boha-non Defendants provided value in paying $10,000 plus labor to clean up the property and was certainly entitled to rely on Lakeland’s assertion that it had the right to sell the parts and equipment; and that, because the Bohanon Defendants had good title, they cannot be liable to Plaintiff for any reason, and Plaintiffs remedy, if any, must be found elsewhere.
Plaintiff respond[ed] that the Bohanon Defendants did not obtain absolute title to the Equipment from Lakeland; that the Bohanon Defendants did not obtain voidable title by way of KRS 355.2-403; that there remain genuine issues of material fact with regard to whether the Bohanon Defendants were good faith purchasers; that the Bohanon Defendants obtained no legal title to the Equipment because Lakeland itself lacked any legal title; and that the Boha-non Defendants have a remedy against Lakeland for breach of warranty under KRS 355.2-312(1).

Ultimately, the circuit court granted summary judgment in favor of the Boha-non Defendants.1 As to why, it explained:

Even viewing the facts in a light most favorable to Plaintiff and finding that Lakeview had no title in the Equipment, it appears that the Bohanon Defendants, by paying full value for the Equipment, acquired the rights of a bona fide purchaser in good faith under common law. [793]*793There is nothing of an evidentiary nature in the record that reflects that Lakeview did not present itself as being the owner of the Equipment. Likewise, the record is devoid of any affirmative evidence that the Bohanon Defendants had any knowledge that Lakeview did not have good title in the Equipment. Accordingly, the record reflects that the Bohanon Defendants had good title and cannot be liable to Plaintiff as a matter of law.

Stated differently, the circuit court presumed Lakeland had no title to the personal property at issue in this matter (ie., the equipment). Nevertheless, the circuit court reasoned because Lakeland held title to the land where the equipment had been placed, and because Lakeland did not tell the Bohanon Defendants that it was not the owner of the equipment, the Bohanan Defendants were able to purchase and acquire valid title to the equipment from Lakeland and were entitled to be treated as a good faith purchaser for value.

This appeal followed.

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Bluebook (online)
498 S.W.3d 790, 90 U.C.C. Rep. Serv. 2d (West) 707, 2016 Ky. App. LEXIS 147, 2016 WL 4487696, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baciomiculo-llc-v-nick-bohanon-llc-kyctapp-2016.