Joe Wieland v. Dana Freeman

• Court: Court of Appeals of Kentucky
• Decided: January 19, 2022
• Docket: 2021 CA 000534
• Status: Unknown

Opinion

RENDERED: JANUARY 21, 2022; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2021-CA-0534-MR

JOE WIELAND AND HOT RODS & BBQ, LLC APPELLANTS

APPEAL FROM HENRY CIRCUIT COURT v. HONORABLE JERRY CROSBY, II, JUDGE ACTION NO. 18-CI-00171

DANA FREEMAN; BEN FREEMAN; AND FREEMAN’S KOUNTRY KORNER KAFE, LLC APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: CALDWELL, GOODWINE, AND LAMBERT, JUDGES.

GOODWINE, JUDGE: Tenant brought action against landlord for claims of

wrongful eviction and defamation. The Henry Circuit Court granted judgment in

favor of landlord. Based on our review, finding no error, we affirm.

On January 30, 2018, Hot Rods & BBQ, LLC (“Hot Rods”) signed a

commercial lease with Dana Freeman (“Dana”). Joe Wieland (“Wieland”) contends he was the sole member of Hot Rods.1 Dana and Ben Freeman (“Ben”)

are a married couple and the owners of Freeman’s Kountry Korner Kafe, LLC

(“Kountry Korner”). Ben also owned First and Last Liquor Store. An amendment

to the lease entitled Ben to obtain ice for his liquor store from Hot Rods at no cost.

R. at 195.

On June 18, 2018, Smith called Ben informing him Wieland changed

the locks on the leased restaurant, and Ben would be unable to retrieve ice for his

business.2 The same day, Ben entered Hot Rods’ premises through the back door.

Although the restaurant was closed, an employee was present. Wieland called the

state police, and all parties were told to leave the premises until the matter could be

resolved in court.

Upon learning of these events, Dana went to the Henry County

Courthouse to obtain information regarding evicting Hot Rods from the building.

Pursuant to the information she received, Dana wrote out an eviction notice

1 The commercial lease contains two signature pages; one purportedly signed solely by Wieland and the other signed by Wieland and Bobby Smith (“Smith”). The page purported signed solely by Wieland is attached to Wieland’s complaint. Record (“R.”) at 12. The page purportedly signed by both Wieland and Smith is attached to multiple pleadings. R. at 141 and R. at 194. 2 Although the nature of the relationship between Smith and Wieland was disputed, Ben believed Smith was in business with Wieland because Smith purportedly signed the lease as an officer of Hot Rods. Wieland’s attorney later informed Dana by letter that Smith had no interest in Hot Rods, and Wieland was the sole member of the LLC. R. at 237.

-2- informing Hot Rods it would be evicted from the premises in 30 days from June

18, 2018 and posted it on the door of the restaurant.

On June 27, 2018, Dana contacted Wieland’s attorney to discuss the

spoiling food in the restaurant. Wieland’s attorney informed Dana that Wieland

would not be returning to the property, and she should clean the restaurant. Ben

texted Wieland asking him to meet them at the restaurant the next day to clean

things out, but Wieland did not appear.

On July 3, 2018, counsel for Appellees sent a letter entitled Notice of

Eviction to Hot Rods, instructing it to remove its belongings no later than July 18,

2018. The letter alleged Hot Rods failed to pay rent for June and July 2018,

maintain insurance on the premises, pay for utilities, and Wieland failed to use the

premises for restaurant business only as he was living in the building.

On July 18, 2018, a different attorney for Hot Rods and Wieland

responded to the eviction notice requesting Appellees provide copies of the written

notices for each default as required under the commercial lease, time for Wieland

to cure the default, and proof the default currently existed. If they could not

provide proof, Wieland’s attorney requested he be permitted to conduct business as

usual with quiet, exclusive use of the premises.

In response, Appellees sent a letter on July 23, 2018, stating it served

notice of default by Hot Rods and/or Wieland under the lease, and Hot Rods had

-3- ten days to cure the default. The notice identified the following defaults: (1)

failure to pay June and July 2018 rent; (2) failure to pay for utilities in violation of

the “Utilities and Services” provision; (3) Wieland resided on the premises at least

during April and June 2018 in violation of the “Use of Premises” provision; and

(4) failure to pay taxes in violation of the “Taxes” provision.

On August 2, 2018, Appellees sent a letter informing Hot Rods it

failed to cure the defaults identified in the July 23, 2018 letter. Pursuant to the

lease Dana was permitted to take immediate possession of the premises without

further notice, without prejudicing her right to damages, and could elect to cure

any defaults herself. The cost of her action would be added to Hot Rod’s financial

obligations under the lease. The letter informed Hot Rods that Dana would take

possession of the premises at the close of business on August 2, 2018.

Thereafter, the parties’ attorneys negotiated dates and times for

Wieland to retrieve his personal property, equipment, and liquor. On August 31,

2018, Wieland met Dana and picked up his personal property from the premises.

He signed a receipt for those items. On September 21, 2018, Wieland met Dana to

pick up his liquor that was still on the premises, and he signed a receipt for those

items.

On September 24, 2018, Wieland and Hot Rods filed a complaint

against Dana, Ben, and Kountry Korner in the Henry Circuit Court. Appellants

-4- raised claims of tortious interference with quiet enjoyment, wrongful eviction, and

defamation per se. There is some dispute as to whether a breach of contract claim

was alleged. Appellants attached the July 3, 2018, July 23, 2018, and August 2,

2018 letters from Appellees to the complaint.

The circuit court held a hearing on December 19, 2018, regarding

some of Hot Rods’ personal property. The video recording was not made part of

the record on appeal. However, the hearing did not pertain to any of the issues on

appeal, so it is unnecessary for our review.

On January 9, 2020, Wieland and Hot Rods moved for summary

judgment on the issue of wrongful eviction citing no case law in support of their

written argument. On February 6, 2020, Appellees filed an opposing motion for

summary judgment. Appellees argued Wieland was not a party to the lease and

had no legal standing to obtain damages. They further noted Hot Rods cited no

legal authority in support of its motion. Finally, Appellees argued Hot Rods had

no viable legal claim against them, so that the action must be dismissed as a matter

of law.

On September 15, 2020, the circuit court entered an order granting

summary judgment in favor of Appellees on the wrongful eviction claim. The

court stated Hot Rods cited no relevant case law in support of its argument. The

court found no wrongful eviction occurred as no forcible detainer action was filed

-5- nor did the landlord physically enter and remove Hot Rods’ possessions from the

property.

Hot Rods moved for reconsideration. The court treated it as a motion

under CR3 54.02. The court acknowledged some confusion as to what claims were

made in the complaint. The court found Hot Rods and Wieland failed to raise any

new legal or factual argument and denied the motion.

On October 9, 2020, Dana, Ben, and Kountry Korner moved for

judgment on the pleadings to dismiss the claim of defamation per se.

On December 11, 2020, the circuit court entered an order providing

the parties an opportunity to inform the court what issues remained so a final order

could be entered. As stated above, there was confusion regarding what claims

were raised in the complaint. Wieland and Hot Rods did not inform the court that

it had a pending breach of contract claim. Therefore, the only remaining issue was

defamation per se.

On April 22, 2021, the circuit court granted Appellees’ motion to

dismiss the defamation per se claim. The court found Wieland had no claim for

defamation per se because the letters were addressed to Hot Rods and not him

personally. The court further found the letters did not amount to per se defamation

against Hot Rods because there was not a conclusive presumption of malice and

3 Kentucky Rules of Civil Procedure.

-6- damage. Additionally, the circuit court found the letters and notice fell under the

judicial statements privilege. The circuit court made the order final and

appealable.

On appeal, Wieland and Hot Rods argue: (1) the circuit court erred in

granting summary judgment on the wrongful eviction claim; (2) the circuit court

erred in dismissing their defamation per se claim; (3) the circuit court failed to

adjudicate the contract claim; and (4) Wieland had standing to pursue claims

individually.4 “This appeal presents for resolution primarily issues of law. We

review these questions of law de novo, respectfully owing no deference to the legal

determinations of the courts below.” Phillips v. Rosquist, 628 S.W.3d 41, 45 (Ky.

2021) (footnote omitted).

First, Appellants argue the circuit court erred in granting summary

judgment on the wrongful eviction claim. The circuit court stated a valid claim for

wrongful eviction must be based on either: (1) a forcible detainer action filed

without meeting statutory requirements under Shinkle v. Turner, 496 S.W.3d 418

(Ky. 2016), or (2) a landlord’s physical, forcible entry into a leased premises and

4 Appellants’ brief does not “contain at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review” in violation of CR 76.12(4)(c)(v). Because Appellants’ arguments clearly fail on the merits, we elect “to ignore the deficiency and proceed with [our] review.” Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010).

-7- physically turning the tenant out onto the streets with their possessions under

Maddix v. Gammon, 293 Ky. 540, 169 S.W.2d 594 (1943). The circuit court found

no forcible detainer action was filed, nor did any of the Appellees physically

remove Hot Rods and/or its property from the premises. Therefore, the court

found there was no basis for Appellants’ claim for wrongful eviction as a matter of

law.

Below, Appellants cited Kearns v. Sparks, 296 S.W.2d 731 (Ky.

1956) in support of their argument, but the circuit court found the case

inapplicable. In Kearns, while the tenant left town for a business trip, the landlord

removed the tenant’s property from his office and demolished it. Id. at 732. On

appeal, the Court held the landlord “must be held responsible for the natural and

probable consequences of her wrongful act in evicting the plaintiff.” Id. at 733.

Here, we agree with the circuit court that Hot Rods was not

wrongfully evicted. Dana never filed a forcible detainer action against Hot Rods

nor did she physically remove Hot Rods or its property from the premises. Instead,

Hot Rods changed the locks on the restaurant in violation of the lease, and he had

the key. Hot Rods’ attorney informed Dana that Wieland had no intention of

returning to the restaurant or continuing with the lease. Although Dana posted an

eviction notice on the door of the restaurant, sent a letter to Hot Rods’ registered

agent, and sent a letter informing the Alcoholic Beverage Control Board Hot Rods

-8- had been evicted on June 18, 2018, mere statements do not meet either legal

standard for eviction. Additionally, Dana did not physically remove Hot Rods or

its property from the premises. Rather, the parties mutually agreed on dates and

times for Wieland to retrieve his personal property, equipment, and liquor and

signed receipts for same. Thus, we conclude the circuit court correctly granted

summary judgment against Hot Rods on the wrongful eviction claim.

Second, Appellants argue the circuit court erred in dismissing their

defamation per se claim. To prevail on a claim for defamation, a plaintiff must

prove four elements: “(a) a false and defamatory statement concerning another; (b)

an unprivileged publication to a third party; (c) fault amounting at least to

negligence on the part of the publisher; and (d) either actionability of the statement

irrespective of special harm or the existence of special harm caused by the

publication.” Toler v. Süd-Chemie, Inc., 458 S.W.3d 276, 282 (Ky. 2014)

(footnotes omitted) (quoting RESTATEMENT (SECOND) OF TORTS § 558 (1977)). An

alleged defamatory statement is “actionable per se when there is a conclusive

presumption of both malice and damage.” Id. (citation omitted). Appellants argue

the statements contained in the eviction notice posted to the door of Hot Rods and

the three letters sent by Appellees were defamatory per se because they amount to

“conduct which is incompatible with his business, trade, profession, or office.”

-9- Gilliam v. Pikeville United Methodist Hosp. of Kentucky, Inc., 215 S.W.3d 56, 61

(Ky. App. 2006) (quoting RESTATEMENT (SECOND) OF TORTS, supra § 570).

Appellants argue the statements in the eviction notice posted to the

door of Hot Rods and the three letters sent by Appellees are false. However,

Appellants do not point out which statements are false, nor did they provide any

evidence proving the statements were false. The notice posted to the door simply

informed Hot Rods that it was to vacate the premises, and the owners of the

building must be present for its property to be removed. The letters allege Wieland

lived at the property, failed to maintain insurance, failed to pay for utilities, failed

to pay rent, failed to pay taxes, failed to obtain a food license, and changed the

locks in violation of the lease. Appellants bore the burden of proving the

statements were defamatory, but they never provided any evidence of their falsity.

Toler, 458 S.W.3d at 285. Because Appellants failed to submit any proof the

statements at issue were false, we do not reach the issue of actionability.

Furthermore, we need not address the circuit court’s finding that the statements

were subject to the judicial statements privilege because Appellants clearly failed

to prove even the first element of defamation. Thus, we hold the circuit court

correctly dismissed Appellants’ defamation per se claim.

Third, Appellants argue the circuit court failed to adjudicate the

breach of contract claim. The circuit court told Appellants multiple times that their

-10- pleadings were confusing, and their claims were not discernable. On December

11, 2020, the court entered an order giving the parties an opportunity to inform the

court of what issues remained, so it could enter a final order. Appellants failed to

respond to that order indicating that any issues remained.

This issue was never raised before the circuit court, nor do Appellants

cite any legal authority on appeal in support of their argument the case should be

remanded to litigate a breach of contract claim. “As Kentucky’s appellate courts

are fond of saying, ‘appellants will not be permitted to feed one can of worms to

the trial judge and another to the appellate court.[’]” Royal Consumer Products,

LLC v. Saia Motor Freight Line, Inc., 520 S.W.3d 753, 758 (Ky. App. 2016)

(quoting Elery v. Commonwealth, 368 S.W.3d 78, 97 (Ky. 2012)). We also will

not “go on a fishing expedition to find support for . . . underdeveloped arguments.”

Curty v. Norton Healthcare, Inc., 561 S.W.3d 374, 379 (Ky. App. 2018).

Although Appellants assert they alleged a breach of contract claim in the

complaint, they failed to raise the issue in response to the circuit court’s December

11, 2020 order. Thus, Appellants waived this claim. As they failed to argue below

that they had a cognizable contract claim, they failed to preserve this argument for

appeal.

Finally, Wieland argues he had standing to pursue the claims

individually. Above we held there was no legal basis for the wrongful eviction

-11- claim or the defamation claim. Even if Wieland had standing to bring these

claims, they are not legally viable. Thus, we decline to address the merits of

whether Wieland had individual standing to bring these claims.

For the foregoing reasons, we affirm the judgment of the Henry

Circuit Court.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Kirk Hoskins Ruth H. Baxter Louisville, Kentucky Carrollton, Kentucky

-12-