RENDERED: JULY 9, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0503-MR
PROVIDENCE HILL, LLC APPELLANT
APPEAL FROM BOYD CIRCUIT COURT v. HONORABLE JOHN F. VINCENT, JUDGE ACTION NO. 18-CI-00526
DAMIEN NDZANGA APPELLEE
AND
NO. 2020-CA-0575-MR
DAMIEN NDZANGA CROSS-APPELLANT
CROSS-APPEAL FROM BOYD CIRCUIT COURT v. HONORABLE JOHN F. VINCENT, JUDGE ACTION NO. 18-CI-00526
PROVIDENCE HILL, LLC CROSS-APPELLEE OPINION AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, JONES, AND LAMBERT, JUDGES.
GOODWINE, JUDGE: Providence Hill, LLC (“Providence Hill”) appeals from
the March 27, 2020 judgment of the Boyd Circuit Court granting Damien Ndzanga
(“Ndzanga”) damages for the fair market value of his personal property. Ndzanga
cross-appeals from the same judgment awarding Providence Hill damages for
unpaid rent and fees. After careful review, we affirm.
BACKGROUND
Ndzanga initiated this action for return of, or monetary damages for,
his personal property and security deposit. Providence Hill filed a counter-claim
for damages in the amount of two months’ unpaid rent and an early termination
fee. A bench trial was held on February 3, 2020. The trial court heard testimony
from Ndzanga; Stacy Cooper, an auctioneer; a representative of Providence Hill;
and a Boyd County sheriff’s deputy.
Ndzanga signed a residential lease with Providence Hill in August
2017. He paid a security deposit in the amount of $870.00 and agreed to pay the
same amount each month in rent. The lease was for a term of one year and
included a provision allowing Ndzanga to terminate the lease early by providing
Providence Hill thirty days’ notice in writing and paying an early termination fee
-2- equal to one month’s rent. The lease also included a provision prohibiting oral
modification of the contract.
Due to a change in employment, Ndzanga vacated the apartment in
early 2018. He failed to pay rent in February or March 2018. He testified to
speaking to Providence Hill’s rental agent prior to leaving. He claimed to have
notified her he would be gone during February 2018 and would return in mid-
March 2018 to remove his personal property from the apartment. Ndzanga
believed, based on his conversation with the rental agent, he would be able to
terminate his lease early without penalty and his security deposit would cover one
month of unpaid rent. The property which remained in the apartment included two
sofas; a king-sized bed frame, mattress, and box springs; a dining room table with
four chairs; a chest; a four-drawer dresser; and a mirror.
Based on Ndzanga’s failure to pay rent, Providence Hill filed an
action for forcible detainer in the Boyd District Court. Providence Hill prevailed,
and a writ of possession was entered by the district court. The deputy sheriff
executed the writ of possession by accompanying a representative of Providence
Hill to the apartment to ensure no one unlawfully remained on the premises.
According to his testimony, after completing a walkthrough, the deputy sheriff left
the property. He did not remove Ndzanga’s personal property from the apartment
nor did he assist the representative from Providence Hill in doing so.
-3- Ndzanga returned to the apartment in mid-March 2018, after the writ
of possession had been executed. He then requested Providence Hill return his
personal property. Providence Hill did not return the furniture and provided no
explanation of what had been done with it. Providence Hill’s representative
testified its standard procedure for disposing of a former tenant’s personal property
was to remove the property from the apartment and set it on the sidewalk. Once
personal property is set out, anyone may take it, or it may be placed in the trash.
Providence Hill kept no record of what personal property was left in any apartment
or whether it disposed of such property upon execution of a writ of possession.
At trial, Cooper testified to the fair market value of Ndzanga’s
furniture. He was given photographs Ndzanga had taken of the furniture. Cooper
testified the furniture was valued at $21,963.00 in new condition. Because
Ndzanga owned the furniture for approximately one year before he lost possession
of it, Cooper reasoned a twenty percent reduction in value was appropriate. Taking
into consideration this reduction, Cooper determined the fair market value of the
furniture was $17,570.40.
The trial court found, based on evidence presented at trial, Ndzanga
violated the terms of the lease agreement by failing to pay rent and erroneously
assuming his security deposit would cover his unpaid rent. The court found,
because the lease agreement prohibited oral modifications, Ndzanga’s alleged
-4- conversations with Providence Hill’s rental agent did not alter its terms. On this
basis, the trial court granted Providence Hill a judgment against Ndzanga in the
amount of $2,610.00 for two months of unpaid rent and the unpaid early
termination fee, as well as one-third of its costs and interest at the judgment rate
until paid.
The trial court further found Providence Hill committed conversion of
Ndzanga’s personal property. Relying on Ky. OAG1 82-553, the court found
“[t]he person receiving property has an obligation not to destroy someone else’s
property without contractual ability or other agreement to do so.” Record (“R.”) at
149-50. The court deemed it inequitable that Providence Hill disposed of the
furniture without documenting it or providing Ndzanga notice. The court then
imposed a constructive trust because of Providence Hill’s “unconscionable
conduct.” Id. at 150-51. The trial court awarded Ndzanga damages in the amount
of $17,570.40 and two-thirds of his costs with interest at the judgment rate until
paid.
No post-judgment motions were filed by either party. This appeal and
cross-appeal followed.
1 Kentucky Attorney General Opinion.
-5- STANDARD OF REVIEW
“We review questions of law de novo and, thus, without deference to
the interpretation afforded by the [trial] court.” Marshall v. Kentucky Farm
Bureau Mutual Insurance Company, 618 S.W.3d 499, 502 (Ky. App. 2020)
(internal quotation marks and citation omitted). Where a trial court sits without a
jury, “its factual findings shall not be set aside unless clearly erroneous[.]” Cole v.
Gilvin, 59 S.W.3d 468, 472 (Ky. App. 2001) (internal quotation marks and citation
omitted). “A factual finding is not clearly erroneous if it is supported by
substantial evidence.” Id. at 472-73 (citation omitted). “[D]ue regard shall be
given to the opportunity of the trial court to judge the credibility of the witnesses.”
Id. at 472 (internal quotation marks and citation omitted).
ANALYSIS
Before reaching the merits of this appeal, we must address Providence
Hill’s failure to comply with the briefing requirements of CR2 76.12. An
appellant’s brief must include “at the beginning of the argument a statement with
reference to the record showing whether the issue was properly preserved for
review and, if so, in what manner.” CR 76.12(4)(c)(v). “It is not the function or
responsibility of this court to scour the record on appeal to ensure that an issue has
2 Kentucky Rules of Civil Procedure.
-6- been preserved.” Koester v. Koester, 569 S.W.3d 412, 415 (Ky. App. 2019)
(citation omitted). Providence Hill’s brief is devoid of preservation statements.
“Compliance with CR 76.12 is mandatory.” Petrie v. Brackett, 590
S.W.3d 830, 835 (Ky. App. 2019) (citation omitted). “Our options when an
appellate advocate fails to abide by the rules are: (1) to ignore the deficiency and
proceed with the review; (2) to strike the brief or its offending portions . . .; or (3)
to review the issues raised in the brief for manifest injustice only[.]” Hallis v.
Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010) (citation omitted). Because
Providence Hill’s arguments fail on the merits, we will ignore the deficiency and
proceed with review of its claims. Counsel cannot be assured of such leniency if
non-compliant in the future.
Turning to the merits of this appeal, Providence Hill first argues the
trial court erred in imposing a duty for a landlord to keep and preserve a tenant’s
personal property. As part of this argument, Providence Hill contends: (a) the trial
court’s ruling is inconsistent with Kentucky law; (b) where other states have
imposed such a duty, they have done so by statute; and (c) Providence Hill never
received Ndzanga’s property and so, had no duty to preserve it. Providence Hill
further argues: (1) there was no fraud or breach of duty upon which to base the
imposition of a constructive trust; (2) Ndzanga presented insufficient evidence of
damages; and (3) Ndzanga’s testimony regarding statements by the rental agent
-7- should not have been admitted into evidence. On cross-appeal, Ndzanga alleges
the trial court erred in granting Providence Hill a judgment against him for unpaid
rent and fees.
First, Providence Hill argues the Uniform Residential Landlord and
Tenant Act (“URLTA”) does not impose any duty on landlords related to former
tenants’ personal property. However, Providence Hill fails to acknowledge that the
URLTA is applicable only to the cities, counties, and urban-county governments
which elect to enact it. KRS3 383.500. It is unclear from the record whether
Providence Hill is located within the city limits of Ashland, Kentucky. However,
Providence Hill has not identified nor has our research revealed, any ordinance by
which the City of Ashland or the Boyd County Fiscal Court has adopted the
URLTA. Therefore, the URLTA has no applicability to this action.
Furthermore, the trial court did not base its decision on any statute
including the URLTA, but rather found Providence Hill committed the intentional
tort of conversion. In reaching this decision, the trial court relied on Ky. OAG 82-
553. While this Court is not bound by attorney general opinions, they are “highly
persuasive.” Palmer v. Driggers, 60 S.W.3d 591, 596 (Ky. App. 2001) (footnote
omitted).
3 Kentucky Revised Statutes.
-8- [T]he landlord must give notice to the tenant to remove the personal property and a reasonable time in which to so remove the goods. It is suggested that the landlord act cautiously so as to avoid potential liability for conversion. One such cautious measure would be to provide notice which is reasonably calculated to inform the tenant, which under the circumstance may be by certified mail, return receipt requested. . . .
If the tenant fails after notice to remove the personal property, the landlord may cause its removal in a reasonable manner. . . . The personal property may be stored, such as in a storage area on the landlord’s premises or in a warehouse, until it is claimed by the tenant or until the property is abandoned.[4]
Ky. OAG 82-553, *1-2 (emphasis added).
The opinion is primarily supported by citations to case law from other
states as the attorney general acknowledges “[i]n Kentucky, there is little statutory
or common law guidance on this matter.” Id. at *1. Many states have enacted
statutes either imposing a duty on landlords to care for a tenant’s personal property
after an eviction or mandating no such duty exists.5 In other states where no such
statute has been enacted, the courts have relied on common law principles in
4 “[T]he doctrine of abandonment precludes any claim for conversion.” C&H Manufacturing, LLC v. Harlan County Industrial Dev. Auth., Inc., 600 S.W.3d 740, 746 (Ky. App. 2020) (citation omitted). Although Providence Hill alleged Ndzanga abandoned the furniture before the trial court, it has not raised this argument on appeal. Therefore, we will not address this argument herein. 5 From our research, legislatures in at least forty states and the District of Columbia appear to have either imposed some duty on landlords to care for a former tenant’s property or absolved landlords of such responsibility by statute. Legislatures in five states –Kentucky, Ohio, Michigan, Iowa, and New York –have enacted no such statute.
-9- deciding issues such as those presented herein. See Gum v. Fitzgerald, 262
N.W.2d 924, 927 (Mich. App. 1977) (holding a tenant may only succeed on a
claim of conversion where he has made a reasonable attempt to recover the
personal property to establish his right to possession has been refused); see also
Lewis v. Jaeger, 818 N.W.2d 165, 188-89 (Iowa 2012) (holding no conversion
occurred where the trial court found the landlord’s testimony regarding return of
the tenant’s property credible); see also Glass v. Wiener, 104 A.D.2d 967, 968
(N.Y. App. 1984) (holding a landlord can be liable for conversion of a tenant’s
property and has no absolute right to retain or destroy a tenant’s personal property
even where the tenant has been evicted); see also Ringler v. Sias, 428 N.E.2d 869,
870 (Ohio App. 1980) (applying common law to determine a bailment is
established only where the landlord takes some act consistent with intent to possess
the former tenant’s property). Here, the trial court also relied on common law in
finding Providence Hill’s actions constituted a conversion. This is not inconsistent
with Kentucky law. Even in jurisdictions where the URLTA has been enacted, the
statute was meant only to supplement, not replace, common law. Miller v. Cundiff,
245 S.W.3d 786, 789 (Ky. App. 2007).
Conversion is defined as “the wrongful exercise of dominion and
control over property of another[.]” C&H Manufacturing, LLC, 600 S.W.3d at 745
(internal quotation marks and citation omitted). The elements of conversion are:
-10- (1) the plaintiff had legal title to the converted property;
(2) the plaintiff had possession of the property or the right to possess it at the time of the conversion;
(3) the defendant exercised dominion over the property in a manner which denied the plaintiff’s rights to use and enjoy the property and which was to the defendant’s own use and beneficial enjoyment;
(4) the defendant intended to interfere with the plaintiff’s possession;
(5) the plaintiff made some demand for the property’s return which the defendant refused;
(6) the defendant’s act was the legal cause of the plaintiff’s loss of the property; and
(7) the plaintiff suffered damage by the loss of the property. Id. (some emphasis added) (citation omitted).
With regard to the trial court’s finding of conversion, Providence Hill
argues it never exercised dominion over Ndzanga’s furniture. Instead, Providence
Hill alleges the deputy sheriff who executed the writ of possession removed the
furniture from the apartment. However, the deputy sheriff’s testimony directly
contradicts this assertion. He testified that, when executing the writ of possession,
he only entered the apartment to conduct a walkthrough to ensure no one
unlawfully remained on the premises. Video Record (“V.R.”) at 2/3/2020,
10:41:38-10:42:08. He then left the apartment and its contents in the possession of
-11- the representative of Providence Hill. Id. He specifically denied removing or
assisting in the removal of Ndzanga’s furniture. Id. at 10:43:02-10:43:04.
Furthermore, Providence Hill’s representative testified to the company’s standard
practice of setting former tenants’ personal property on the sidewalk after an
apartment is returned to its possession. Id. at 10:36:37-10:37:00. Based on this
unrefuted testimony, we cannot determine the trial court erred in finding
Providence Hill exercised dominion over Ndzanga’s furniture.
Furthermore, Providence Hill’s reliance on Bell v. Commonwealth,
423 S.W.3d 742 (Ky. 2014), in arguing the trial court is prohibited from using its
equitable powers to award Ndzanga damages is misplaced. It is true that “[o]nly
when there is no law or precedent does a court have the authority to exercise pure
equity.” Id. at 747 (citation omitted). Equity supplements the law where there is
no remedy at law. Id. at 747-48. However, here the trial court did not exercise
pure equity. Instead, the court applied common law principles in reaching its
decision and utilized an available remedy at law, making Bell inapplicable.
Providence Hill next argues imposition of a constructive trust was
inappropriate because there was no breach of duty or fraud. A constructive trust is
a remedy imposed where “legal title to property has been acquired or held under
such circumstances that the holder of that legal title may not in good conscience
retain the beneficial interest, equity converts him into a trustee.” Bewley v. Heady,
-12- 610 S.W.3d 352, 357 (Ky. App. 2020) (citations omitted). The injured party is not
required to prove actual fraud. Kaplon v. Chase, 690 S.W.2d 761, 763 (Ky. App.
1985) (citation omitted). Instead, “a court exercising its equitable power may
impress a constructive trust upon one who obtains legal title . . . in any other
unconscientious manner, so that he cannot equitably retain the property which
really belongs to another.” Bewley, 610 S.W.3d at 358 (citations and internal
quotation marks omitted).
Providence Hill argues its only action was to lawfully evict Ndzanga.
The trial court found Ndzanga violated the terms of his lease and, on this basis,
awarded Providence Hill a judgment for unpaid rent and fees. Although related,
the issue of what was done with Ndzanga’s personal property is separate from the
eviction. Providence Hill cites no authority which precludes a trial court from
finding a landlord liable for conversion of personal property or imposing a
constructive trust when a tenant has been lawfully evicted. “Kentucky law has
long held that an alleged error may be waived when an appellant fails to present
any authority in support of his argument advanced on appeal.” Bailey v. Bailey,
399 S.W.3d 797, 801 (Ky. App. 2013) (citation omitted). Furthermore, a lawful
eviction does not protect a landlord from liability for conversion of a former
tenant’s personal property. Ky. OAG 82-553, *1.
-13- Herein, the trial court found Providence Hill’s conversion of
Ndzanga’s personal property unconscionable when it imposed the constructive
trust. R. at 150-51. Providence Hill’s only argument against the trial court’s
finding of unconscionable conduct is to again assert it was never in possession of
Ndzanga’s furniture. In making this argument, Providence Hill repeats the
allegation that the deputy sheriff removed the property from the apartment, which
is directly refuted by the record. Without any further argument from Providence
Hill, we have no basis for determining the trial court erred in imposing the
constructive trust.6
Next, Providence Hill argues Ndzanga presented insufficient evidence
of damages.
Where property is destroyed, or is converted, so that the title either is, or is regarded as, out of the former owner, damages are the pecuniary representative of the property, and take its place. The plaintiff has lost or abandoned his claim to the property; his claim against the defendant is
6 We note that Kentucky courts have required the party seeking the imposition of a constructive trust to prove a confidential relationship with the party against whom the trust is imposed. Keeney v. Keeney, 223 S.W.3d 843, 849 (Ky. App. 2007) (citation omitted); see also Middleton v. Beasley, 186 Ky. 252, 216 S.W.591, 592 (1919). “[T]he existence of the relationship in any particular case is to be determined by the facts established.” Keeney, 223 S.W.3d at 849-50 (citation omitted). In addition to fiduciary relationships, the courts have recognized close family relationships, such as between a parent and child or spouses, to be confidential relationships which, when violated, can support the imposition of a constructive trust. See Bates v. Bates, 182 Ky. 566, 206 S.W. 800, 802 (1918); see also Kaplon, 690 S.W.2d at 762; see also Keeney, 223 S.W.3d at 843. No authority defines the relationship between a typical landlord and tenant as such a confidential relationship. However, because our review is confined to errors raised by Providence Hill, its failure to raise this issue on appeal precludes our review of it. See Milby v. Mears, 580 S.W.2d 724, 727 (Ky. App. 1979).
-14- for an equivalent sum of money. In this point, a conversion very nearly resembles a sale. Batson v. Clark, 980 S.W.2d 566, 575 (Ky. App. 1998) (citation omitted). “It is
well-established that the measure of damages for a claim of conversion is generally
the fair market value of the property at the time of conversion.” Jasper v. Blair,
492 S.W.3d 579, 583 (Ky. App. 2016) (citation omitted). It is the plaintiff’s
burden to prove the fair market value of the property. Id.
Herein, Ndzanga presented photographs he took of his furniture at the
time he purchased the items. The photographs were given to Cooper for valuation
of the furniture. Providence Hill alleges the photographs do not reflect the
furniture purchased by Ndzanga. However, Ndzanga testified the photographs
were accurate depictions of his furniture and were taken on the day he purchased it.
V.R. at 2/3/2020, 10:22:45-10:23:20.7
Regardless of conflicting evidence, the weight of the evidence, or the fact that the reviewing court would have reached a contrary finding, due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses because judging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court.
Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (citations and internal quotation
marks omitted). While receipts documenting Ndzanga’s purchase of the furniture
7 The photographs appear to have been taken when the items were in the furniture store. During his testimony, Ndzanga explained he took the photographs to send to friends at the time of his purchase. V.R. at 2/3/2020, 10:23:25-10:23:41.
-15- may have been preferable to the photographs he produced at trial, the trial court
found Ndzanga’s testimony that the photographs were accurate depictions of his
furniture credible.
Furthermore, Providence Hill produced no evidence to show the
furniture in the photographs was not that which was in the apartment when it was
returned to the company’s possession. It had no policy for documenting personal
property left in apartments by former tenants or the manner in which it disposed of
such property.8 Where the trial court was convinced by the testimony and evidence
presented by Ndzanga and where Providence Hill presented no evidence to the
contrary, we cannot determine the court erred in its findings.
Next, Providence Hill argues the trial court erred in allowing Ndzanga
to testify to statements made by the rental agent. According to Ndzanga’s
testimony, the rental agent agreed to allow him to terminate his lease early, to use
his security deposit for his February 2018 rent, and to return to retrieve his
furniture and pay rent for March 2018 in mid-March. V.R. at 2/3/2020, 10:03:00-
10:04:30. The trial court was unconvinced by Ndzanga’s testimony and found the
lease agreement prohibited oral modification of the contract. On this basis, the
court determined Ndzanga violated the terms of the lease, entitling Providence Hill
8 Without any such records or attempts to provide notice to former tenants before disposing of their personal property, landlords leave themselves vulnerable to claims for conversion. Ky. OAG 82-553, *1.
-16- to a judgment against him in the amount of $2,610.00 for two months of unpaid
rent and the unpaid termination fee.
Providence Hill argues the rental agent’s statements were inadmissible
under KRE9 804(b)(3) because they were not against the company’s interests. The
rental agent was unavailable under KRE 804(a)(4) because she passed away prior
to trial. Where the declarant is unavailable, the following out-of-court statements
are not excluded:
A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true.
KRE 804(b)(3). “The interest involved must not be too indirect or remote.”
Fisher v. Duckworth, 738 S.W.2d 810, 815 (Ky. 1987) (citation omitted). Contrary
to Providence Hill’s argument, the rental agent’s statements were directly against
the company’s pecuniary interests. Had the lease not prohibited oral modification,
the rental agent’s agreement with Ndzanga would have deprived Providence Hill of
at least one month’s rent and the termination fee. Therefore, the trial court did not
err in allowing Ndzanga to testify to the rental agent’s statements.
9 Kentucky Rules of Evidence.
-17- Finally, on cross-appeal, Ndzanga alleges Providence Hill should not
have been granted the judgment against him for the unpaid rent and fees. Ndzanga
first argues the trial court erred where the parties orally modified the lease
agreement. “Under contract law, a written instrument will be strictly enforced
according to its terms absent ambiguity.” Grass v. Akins, 368 S.W.3d 150, 152-53
(Ky. App. 2012) (citation omitted). Herein, the lease agreement explicitly
prohibits oral modification of the contract. Therefore, Ndzanga’s argument must
fail.
Ndzanga also argues he should not have been liable for two full
months of unpaid rent because the writ of possession was executed on March 16,
2018. He cites no authority supporting this assertion. Again, “[o]ur courts have
established that an alleged error may be deemed waived where the appellant fails
to cite any authority in support of the issues and arguments advanced on appeal.”
Hadley v. Citizen Deposit Bank, 186 S.W.3d 754, 759 (Ky. App. 2005) (citations
omitted). “It is not our function as an appellate court to research and construct a
party’s legal arguments[.]” Id. Therefore, Ndzanga is not entitled to relief on this
issue.
CONCLUSION
Based on the foregoing, we affirm the judgment of the Boyd Circuit
Court.
-18- ALL CONCUR.
BRIEFS FOR APPELLANT/CROSS- BRIEF FOR APPELLEE/CROSS- APPELLEE: APPELLANT:
David E. Davidson R. Stephen McGinnis Covington, Kentucky Erin N. Hall Greenup, Kentucky
-19-