Coomer v. Gray

750 S.W.2d 424, 1988 Ky. LEXIS 23, 1988 WL 27132
CourtKentucky Supreme Court
DecidedMarch 31, 1988
DocketNo. 87-SC-53-DG
StatusPublished
Cited by8 cases

This text of 750 S.W.2d 424 (Coomer v. Gray) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Coomer v. Gray, 750 S.W.2d 424, 1988 Ky. LEXIS 23, 1988 WL 27132 (Ky. 1988).

Opinions

LAMBERT, Justice.

The issue in this case is whether the ten percent damage for delay provision of KRS 26A.300 applies upon the second appeal from a judgment which determines ownership of sums of money held by a Master Commissioner in an interest bearing account pursuant to an order of the court. On motion, following this Court’s denial of discretionary review in Gray v. Coomer Drilling Co., et al., 85-SC-476-D, the trial court imposed the damage. Reversing, the Court of Appeals held that the judgment appealed from was not

a “judgment for the payment of money” as contemplated by the statute. Rather, it was merely an order of distribution of funds previously paid to the court’s [425]*425clerk1 by agreement of the parties.

We granted discretionary review and now reverse the Court of Appeals.

This action arose out of a dispute between appellant Coomer and appellee Gray as to whether Gray was entitled to a one-half interest in certain producing oil leases. The action was commenced by Gray wherein he asserted his principal claim and additional claims based on fraud and breach of fiduciary duty. By answer, Coomer denied Gray’s claims and asserted a counterclaim for tortious interference with contractual relations.

Promptly after the commencement of litigation, Coomer and the purchaser of the oil, then a party defendant, moved the court to require deposit of accruing proceeds of sale into an account under the control of the circuit court. Without objection from Gray, the court ordered such an account established in the hands of the Master Commissioner. The parties then agreed upon the manner in which the funds would be invested. Throughout trial and appellate court proceedings, sale proceeds and investment income accrued.

About sixteen months after suit was filed, the trial court entered a final judgment. The judgment awarded Gray $27,-000 on one of his claims against Coomer, but dismissed the others including his claim for ownership of a one-half interest in the leases and his claim for the funds held by the Master Commissioner. Coomer’s counterclaim against Gray was likewise dismissed. Finally, the judgment directed the Master Commissioner to disburse the funds by payment of costs, payment of Gray’s $27,000 judgment against Coomer, and payment of “the balance ... to the defendants, Rollin Coomer and Coomer Drilling Company.” When the judgment was entered, the funds held by the Master Commissioner amounted to about $700,000.

Gray timely appealed to the Court of Appeals. The judgments designated in his notice were the final judgment of January 7,1984, and the amended final judgment of February 15, 1984.2 After filing his notice of appeal, Gray tendered and the circuit court clerk approved a supersedeas bond. The bond form used was AOC-79-155, and Gray was designated appellant and Coomer was designated appellee. By the terms of the bond, Gray as principal and Ohio Casualty Insurance Co. as surety, became obligated “in the amount of $100,000 to satisfy the judgment together with interest, costs and damage^ for delay....” On its face, the bond is regular in all respects except one. The form used contains a blank line upon which the amount of the judgment appealed from is to be inserted. Gray erroneously inserted “$27,000,” the judgment rendered in his favor.

In due course, the Court of Appeals affirmed and this Court denied Gray’s motion for discretionary review. Coomer then moved the trial court to impose damages upon Gray pursuant to KRS 26A.300 and his motion was granted.

-Our analysis of the law applicable to this case must begin with KRS 26A.300(2), which states, in part, as follows:

When collection of a judgment for the payment of money has been stayed ... pending any other appeal, damages of ten percent (10%) on the amount stayed shall be imposed against the appellant. ...

This statute is unambiguous. We must therefore construe the words according to their plain meaning and not presume exceptions or additions which do not appear in the statute. Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962). Contrary to Gray’s assertion, we do not find any statutory requirement that the judgment be personal against the appellant. The only requirement is that the judgment be for the payment of money, as opposed to a judgment granting equitable relief. There can be no doubt that the trial court’s judgment met this qualification. It [426]*426adjudged Coomer to be the owner of the leases and directed the Master Commissioner to pay him the balance of the funds generated from the oil produced.

Both parties rely on Ford v. Ford, Ky., 623 S.W.2d 903 (1981), wherein this Court held that the valuation and division of marital property required by statute in a divorce proceeding did not constitute a judgment for the payment of money within the contemplation of KRS 26A.300(2). Citing Kelly v. Kelly, 183 Ky. 576, 209 S.W. 335 (1919), we distinguished the valuation and division proceeding from those domestic relations proceedings which result in orders for payment of lump sums. In Ford, we noted that as to a portion of the property in question, there was no finding as to value, and as to the property to which a value was assigned, that such determination did not constitute a judgment for the payment of money. We held that for the

penalty to apply, there must be a judgment in an amount definite, certain, and readily ascertainable. Otherwise, there is no figure from which to calculate the ten percent (10%) penalty. Ford, supra, at 904.

In the case at bar, determination of the exact amount of the judgment required only a simple mathematical computation. It fully satisfies the requirements established in Ford.

In addition, the statute requires that the judgment be “stayed.” Appellant contends that this requirement was not met because “[t]he only judgment superseded was the $27,000.00 judgment in favor of the Appellee Gray.” We disagree. Both the notice of appeal and the supersedeas bond identified the judgments appealed from by their dates of entry. The parties were properly aligned and the supersedeas bond secured payment of appropriate items of damage in the amount of $100,000. By error in drafting, however, the wrong judgment amount was placed on the bond form, creating an inconsistency with the judgments described by their dates. This inconsistency is not of such significance as to invalidate an otherwise proper instrument. Gray’s undertaking to stay enforcement of the judgment is unmistakable. Moreover, the error is directly chargeable to Gray as the supersedeas bond was his instrument. If it contained an ambiguity, under our rules of construction, it must be construed against Gray. Fidelity & Deposit Co. of Maryland v. Lyon, 276 Ky.

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Cite This Page — Counsel Stack

Bluebook (online)
750 S.W.2d 424, 1988 Ky. LEXIS 23, 1988 WL 27132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coomer-v-gray-ky-1988.