Mary Jane Diebold Individually v. Stephen E. Diebold

RENDERED: AUGUST 5, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0051-MR
MARY JANE DIEBOLD,
INDIVIDUALLY; MARY JANE
DIEBOLD, AS SUCCESSOR
ADMINISTRATIX OF THE ESTATE
OF THOMAS C. DIEBOLD; AND THE
ESTATE OF THOMAS C. DIEBOLD APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE ANNIE O’CONNELL, JUDGE
ACTION NO. 18-CI-003303
STEPHEN E. DIEBOLD APPELLEE
AND
NO. 2020-CA-0723-MR
STEPHEN E. DIEBOLD CROSS-APPELLANT
CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE ANNIE O’CONNELL, JUDGE
ACTION NO. 18-CI-003303
MARY JANE DIEBOLD,
INDIVIDUALLY; MARY JANE
DIEBOLD, AS SUCCESSOR
ADMINISTRATIX OF THE ESTATE
OF THOMAS C. DIEBOLD; AND THE
ESTATE OF THOMAS C. DIEBOLD CROSS-APPELLEES
AND
NO. 2020-CA-1147-MR
STEPHEN E. DIEBOLD APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE ANNIE O’CONNELL, JUDGE
ACTION NO. 18-CI-003303
MARY JANE DIEBOLD,
INDIVIDUALLY; MARY JANE
DIEBOLD, AS SUCCESSOR
ADMINISTRATIX OF THE ESTATE
OF THOMAS C. DIEBOLD; AND THE
ESTATE OF THOMAS C. DIEBOLD APPELLEES
OPINION
AFFIRMING APPEAL NO. 2020-CA-0051-MR,
CROSS-APPEAL NO. 2020-CA-0723-MR,
AND APPEAL NO. 2020-CA-1147-MR
** ** ** ** **
BEFORE: LAMBERT, MCNEILL, AND TAYLOR, JUDGES.
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TAYLOR, JUDGE: Mary Jane Diebold, as successor administratrix of the Estate
of Thomas C. Diebold, the Estate of Thomas Diebold, (collectively referred to as
the Estate), and Mary Jane Diebold, individually, bring Appeal No. 2020-CA-
0051-MR from a December 20, 2019, Opinion and Order of the Jefferson Circuit
Court. Stephen E. Diebold brings Cross-Appeal No. 2020-CA-0723-MR also from
the December 20, 2019, Opinion and Order and brings Appeal No. 2020-CA-1147-
MR from a September 9, 2020, order of the Jefferson Circuit Court. We affirm
Appeal No. 2020-CA-0051-MR, Cross-Appeal No. 2020-CA-0723-MR, and
Appeal No. 2020-CA-1147-MR.
The genesis of this case is found in a Members Agreement
(hereinafter referred to as Buy-Sell Agreement) executed on March 22, 2005,
between Stephen Diebold and Thomas Diebold and a Limited Liability Company
Units Purchase Agreement (Purchase Agreement) subsequently executed on June
18, 2015, by Stephen, the Estate, and Thomas’ widow, Mary Jane Diebold.
Relevant herein, Stephen and Thomas were members of two Kentucky
limited liability companies – Wirecrafters, LLC, and Fabricated Metals, LLC. The
Buy-Sell Agreement provided that upon the death of Stephen or Thomas, the
deceased member’s estate would be required to sell the deceased’s ownership
interests (units) in both Wirecrafters and Fabricated Metals to the surviving
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member. The Buy-Sell Agreement included a formula for valuing the deceased
members’ ownership interests sold thereunder.
Thomas passed away on June 23, 2014. To effectuate Stephen’s
purchase of Thomas’s ownership interests in Wirecrafters and Fabricated Metals,
Stephen, the Estate, and Thomas’s widow, Mary, executed a Purchase Agreement
on June 18, 2015. The Purchase Agreement incorporated the formula in the Buy-
Sell Agreement to value Thomas’s ownership interests in Wirecrafters and
Fabricated Metals. The Purchase Agreement also contained a broad release of
liability between the parties.
Thereafter, the Estate filed a Form 706, United States Estate (and
Generation-Skipping Transfer) Tax Return. The Internal Revenue Service (IRS)
audited the Estate and determined that the price Stephen paid for Thomas’s
ownership interests in Wirecrafters and Fabricated Metals was below fair market
value. As a result, the Estate and the IRS reached a settlement; wherein, $3.54
million was treated as a gift from Thomas to Stephen, resulting in an additional
$1.4 million in taxes. The Estate did not pay the additional taxes; however, it
utilized an unused estate tax exemption totaling $1.4 million, which had the effect
of reducing such exemption available to Mary.
On June 8, 2018, Stephen filed a Petition for Declaration of Rights
against the Estate and Mary, individually. Therein, Stephen alleged that the Estate
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and Mary believed that he was liable for the difference between the fair market
value of Thomas’s ownership interests (units) in Wirecrafters and Fabricated
Metals and the actual price he paid for same in the Purchase Agreement and/or for
additional taxes assessed against the Estate. So, Stephen sought a declaration that
the release set forth in the Purchase Agreement barred such claims by the Estate
and Mary, the statute of limitations barred such claims, and if the Estate or Mary
asserted any claims against Stephen, Stephen would be entitled to indemnification
under the Purchase Agreement for breach thereof.
The Estate and Mary then filed a response to the petition and
counterclaim. In the counterclaim the Estate and Mary alleged, in relevant part:
8. The Buy-Sell Agreement required that upon
the death of either of the two members the surviving
member was required to purchase the deceased member’s
units upon the terms as set forth in the Buy-Sell
Agreement. Decedent and Defendant employed a
formula for the pricing of the units.
9. The Buy-Sell Agreement provided for a
three-year computed EBITDA [Earnings before interest,
taxes, depreciation and amortization] with a 3.6
multiplier.
10. According to Steve Diebold, the formula
used between Decedent and him was the “exact same
formula used to value the businesses” when [Fabricated
Metals] purchased Frank Diebold’s units in 2002. Steve
Diebold was a party to the Frank Diebold [Fabricated
Metals] purchase agreement.
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11. Steve Diebold’s statement that the formula
used in the Buy-Sell Agreement was the same as that
used to value [Fabricated Metals] in the decedent’s
buyout of Frank’s units is incorrect. The formula to
determine the value of [Fabricated Metals] in Decedent’s
purchase of Frank’s shares was a three-year average
EBITDA with a multiplier of 3.7 and is in the range of
the IRS’s expert’s multiplier valuation EBITDA.
....
REFORMATION BASED UPON MUTUAL MISTAKE
....
21. At the time Decedent [Thomas] and Steve
Diebold entered into the Buy-Sell Agreement they
mistakenly believed that the buyout of Frank’s shares in
[Fabricated Metals] used a three-year average EBITDA
with a 3.6 multiplier.
22. The intent of the Buy-Sell Agreement was, in
part, to provide for a fair valuation of the Corporate LLC’s
units, including the sale and purchase of such units upon
the death of one of the members, i.e., “to establish a fair
value for each business” (Wirecrafters and [Fabricated
Metals]) for the purchase of the deceased member’s units
by the surviving member.
23. Pursuant to the Purchase Agreement,
Counter-Petitioners received a sum for the sale of
Decedent’s units in Wirecrafters and [Fabricated Metals]
to Counter-Respondent that was determined by the
formula set forth in the Buy-Sell Agreement.
24. The value of the Corporate LLC’s and thus,
the purchase price for the Decedent’s units by Steve
Diebold was the product of a mistake for which neither
party is at fault.
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25. The sale of Decedent’s units in the Corporate
LLCs was based on this mistaken understanding, and
therefore failed to accomplish the fair market value sale
and purchase of units as intended by Tom Diebold and
Steve Diebold when they entered into the Buy-Sell
Agreement.
26. Further, the sale was unfair, unreasonable,
unconscionable, or not at fair market value as shown by
the IRS’s rejecting that the Buy-Sell Agreement and the
Purchase Agreement were arm’s length transactions and
the IRS’s disregard of the valuation formula for the
purchase price.
....
28. The parties mutual mistake entitles Counter-
Petitioners to have this Court rescind the Buy-Sell
Agreement and/or reform the Purchase Agreement to
reflect the Decedent’s and Steve Diebold’s actual
agreement, intention and understanding, i.e., to “establish
a fair value of each business.”
....
COUNT II
RESCISSION BASED ON UNILATERAL MISTAKE
....
32. Alternatively, a unilateral mistake was made
by Counter-Petitioners with respect to the Purchase
Agreement in regards to the formula used to determine
the fair market value of the Corporate LLC’s. Counter-
Petitioners did not detect the mistake despite the exercise
of reasonable care and should not bear the responsibility
for the mistake.
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33. Enforcement of the Purchase Agreement’s
purchase price in light of and after the IRS’s audit and
adjustments is unconscionable. Moreover, Steve Diebold
knew or should have known of the mistake. Steve
Diebold stated in his November 30, 2017[,]
memorandum, “We agreed that the formula did not yield
a top dollar price, but then again it was no bargain
basement price either.”
....
36. Counter-Petitioners are therefore entitled to
rescission and/or reformation of the Purchase Agreement
and reimbursement in full from Steve Diebold for the
difference in the value of the Corporate LLC’s as
determined by the IRS, an amount equal to the additional
taxes paid by the Estate due to the IRS’s deeming the
increased differential a gift to Steve Diebold and the
diminished DSUE [Decedent’s spouse unused estate tax
exemption] available to M.J. [Mary] Diebold.
....
COUNT III
CONSTRUCTIVE FRAUD
....
39. Tom Diebold and Steve Diebold were not
only brothers but were long-time managers of the
Corporate LLCs. Steve Diebold was knowledgeable in
the details of the Corporate LLCs operations and
financial affairs. Steve Diebold knew or should have
known the valuation formula in the Buy-Sell Agreement
was millions of dollars below the Frank Diebold buy-out
valuation formula.
40. Steve Diebold owed a duty of good faith and
fair dealing to the Estate on the Purchase Agreement and
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to advise the Estate that the consideration of Purchase
Agreement was grossly below the formula used with the
Frank Diebold buy-out.
41. The differences in consideration between the
Frank Diebold buy-out valuation formula and Purchase
Agreement valuation was of such a magnitude that the
Purchase Agreement is plainly unconscionable.
42. Steve Diebold’s failure to advise the Estate
of the existence of the Frank Diebold buy-out valuation
and its much larger EBDITA [sic] multiplier prior to the
execution of the Purchase Agreement constitutes
constructive fraud.
43. This constructive fraud mandates rescission
of the Purchase Agreement since Steve Diebold was in a
position of trust and confidence to the Estate and M.J.
[Mary] Diebold.
....
COUNT IV
INDEMNIFICATION
....
47. The parties never intended for the sale of
Decedent’s units to Steve Diebold to be considered a gift.
The IRS audit and tax adjustment on the Estate was post
the Purchase Agreement and supersedes the purchase
price set forth in the Purchase Agreement. Such event
was not contemplated by the Purchase Agreement and is
outside of the release set forth in the Purchase
Agreement.
48. Counter-Petitioners are entitled to indemnity
from Steve Diebold for the complete tax impact of this
adjustment in an amount equal to the additional taxes
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paid by the Estate due to the IRS’s deeming the increased
differential a gift to Steve Diebold and the diminished
DSUE available to M.J. [Mary] Diebold.
Counterclaim at 6, 8-13 (citations omitted).
Stephen subsequently filed a motion for judgment upon the pleadings.
Stephen argued that the Estate and Mary’s claims were barred by the release
contained in the Purchase Agreement and by the applicable statute of limitations.
Stephen maintained:
The parties declared their intention to enter into a broad
release – one affecting all claims, whether known or
unknown, suspected or claimed, presently discoverable
or undiscoverable.
....
The release at hand is as complete, explicit and
unambiguous as a general release can be. The plain
language of the Purchase Agreement therefore releases
all of the claims set forth in Counter Petitioners’
Counterclaims as a matter of law, and such claims should
be dismissed with prejudice.
Motion for Judgment on Pleadings at 10-11. Stephen also argued that he owed no
fiduciary duty to either the Estate or Mary; thus, their claim of constructive fraud
must fail.
In their response, the Estate and Mary asserted that Stephen, as a
managing member of Wirecrafters and Fabricated Metals, owed a fiduciary duty to
the Estate, as the successor in interest to Thomas’s ownership interest in
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Wirecrafters and Fabricated Metals, and to Mary. The Estate and Mary claimed
that Stephen knew or should have known that the formula used for valuation in the
Buy/Sell Agreement and the Purchase Agreement was not intended by the parties
and was included only by mistake. In particular, the Estate and Mary argued that
Stephen “violated his fiduciary duty by remaining silent on a mistake . . . . A
mistake Steve knew or should have known had occurred.” Response to Motion for
Summary Judgment on the Pleadings at 17-18. The Estate and Mary also sought to
reform the Purchase Agreement due to mutual mistake concerning the formula
utilized to value Thomas’s ownership interest in Wirecrafters and Fabricated
Metals. Alternatively, the Estate and Mary maintain that the Purchase Agreement
should be rescinded for their unilateral mistake as to the valuation formula. Upon
these claims, the Estate and Mary assert that material issues of fact existed that
precluded a judgment on the pleadings.
By a December 20, 2019, Opinion and Order, the circuit court granted
Stephen’s motion for judgment on the pleadings and dismissed the Estate and
Mary’s counterclaim. Therein, the circuit court determined that Stephen owed no
fiduciary duty to Mary and that the release found in the Purchase Agreement
barred the Estate and Mary’s counterclaims against Stephen. The Opinion and
Order included complete finality recitations per Kentucky Rules of Civil Procedure
(CR) 54.02.
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On January 2, 2020, Stephen filed a motion for an award of attorney’s
fees and costs pursuant to Section 9.2 of the Purchase Agreement; Stephen had
also asserted this claim in the Petition for Declaration of Rights. In the motion,
Stephen argued that the Estate and Mary breached the Purchase Agreement by
bringing the counterclaims, thus entitling Stephen to attorney’s fees and costs per
Section 9.2 of the Purchase Agreement.
A few days later, on January 9, 2020, the Estate and Mary filed a
notice of appeal (Appeal No. 2020-CA-0051-MR) in the Court of Appeals from the
December 20, 2019, Opinion and Order. Stephen then filed a motion to dismiss
the appeal arguing that the December 20, 2019, Opinion and Order was not final
and appealable. Stephen argued that the circuit court did not decide his claim of
indemnification under Section 9.2 of the Purchase Agreement. Therefore, Stephen
believed that the December 20, 2019, Opinion and Order was interlocutory.
While the motion to dismiss was pending in the Court of Appeals, the
circuit court rendered an Order Holding Motion in Abeyance. Therein, the circuit
court decided to hold the case in abeyance until the Court of Appeals ruled on the
motion to dismiss Appeal No. 2020-CA-0051-MR.
By order entered May 20, 2020, the Court of Appeals denied
Stephen’s motion to dismiss. Thereafter, on May 28, 2020, Stephen filed a cross-
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appeal (Cross-Appeal No. 2020-CA-0723-MR) from the December 20, 2019,
Opinion and Order and from the March 13, 2020, Order.
Eventually, on September 9, 2020, the circuit court rendered an Order
Denying Motion for Attorney’s Fees and Costs. The circuit court noted that the
case “is now on appeal at the Kentucky Court of Appeals” and that the court “no
longer has jurisdiction over this matter.” Stephen then filed a Notice of Appeal
(Appeal No. 2020-CA-1147-MR) from the September 9, 2020, Order.
These appeals were consolidated for review by order of this Court.
We will initially address Appeal No. 2020-CA-0057-MR and then jointly consider
Cross-Appeal No. 2020-CA-0723-MR and Appeal No. 2020-CA-1147-MR.
To begin, the December 20, 2019, Opinion and Order appealed from
clearly granted Stephen’s motion for judgment on the pleadings. Pursuant to CR
12.03, the circuit court shall consider the motion as a motion for summary
judgment if “matters outside the pleading[s] are presented to and not excluded by
the court[.]” In this case, the record clearly reveals that matters outside the
pleadings were presented to the circuit court. As a result, we shall analyze the
December 20, 2019, Opinion and Order as a summary judgment.
Summary judgment is proper where there exists no genuine issue of
material fact and movant is entitled to judgment as a matter of law. CR 56.03;
Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky. 1991). All
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facts and inferences therefrom are to be viewed in a light most favorable to the
nonmoving party. Steelvest, 807 S.W.2d 476. If there are no genuine issues of
material fact, our review of the judgment looks only to questions of law,
whereupon our review proceeds de novo. Brown v. Griffin, 505 S.W.3d 777, 781
(Ky. App. 2016). Our review proceeds accordingly.
Appeal No. 2020-CA-0051-MR
The Estate and Mary contend that the circuit court erred by
concluding that the release in the Purchase Agreement barred their claims against
Stephen for reformation/recession of the Purchase Agreement and indemnification.
Initially, the Estate and Mary assert that Stephen, as a managing member, owed a
fiduciary duty to the Estate, and he breached this duty by failing to disclose that the
valuation formula in the Purchase Agreement was included as the result of a
mistake, which resulted in Thomas’s ownership interests being valued below fair
market value. Upon the basis of such constructive fraud allegedly committed by
Stephen, the Estate and Mary maintain that the release in the Purchase Agreement
is invalid and unenforceable.
In Patmon v. Hobbs, 280 S.W.3d 589, 594-95 (Ky. App. 2009), our
Court recognized that a managing member of a limited liability company (LLC)
owed a fiduciary duty to other members and to the company in certain
circumstances. Id. As in Hobbs, 280 S.W.3d 589, such a fiduciary duty usually
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arises in situations directly involving the LLC. Particularly, in Hobbs, 280 S.W.3d
at 593, the managing member diverted a business opportunity and funds from the
LLC to another company. By contrast, the Estate and Mary claim that Stephen
breached his fiduciary duty in relation to the Purchase Agreement, in which one
member purchased the ownership interest of another member. So, the facts of this
case and the facts presented in Hobbs, 280 S.W.3d 593, are fairly divergent. Upon
the whole, it is unclear whether Stephen owes a fiduciary duty to the Estate under
these unique circumstances; in fact, we harbor grave doubt that he does.
Nonetheless, even if Stephen did owe such a fiduciary duty, there are no genuine
issues of material fact as to whether he breached same.
As to Stephen’s fiduciary duty, the Estate and Mary argue that
Stephen breached this duty by failing to disclose that a mistake occurred as to the
valuation formula utilized in the Purchase Agreement. They claim that the
valuation formula in the Purchase Agreement and the Buy-Sell Agreement was not
the same formula previously utilized for a buyout of Frank Diebold’s ownership
interests in Fabricated Metals, although the parties intended the valuation formulas
to be identical.
The record contains a memorandum signed by Stephen on November
30, 2017, and drafted in response to the tax audit of the Estate. Therein, Stephen
recounted that the valuation formula utilized by the parties was the same formula
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previously utilized for a buyout of Frank Diebold in Fabricated Metals. Therefore,
according to the memorandum, Stephen was unaware that the valuation formula
utilized in the Purchase Agreement and the Buy-Sell Agreement differed from the
previous formula used to purchase Frank’s ownership interest. And, viewing the
record most favorable to the Estate and Mary, they have simply failed to set forth
any facts that Stephen knew or should have known of the purported “mistake” as to
the valuation formula. Consequently, we hold that no material issue of fact exists
as to whether Thomas breached a fiduciary duty to the Estate or to Mary. As a
result, no constructive fraud took place, and the release in the Purchase Agreement
is valid.
The Estate and Mary also assert that their claims (mutual mistake,
unilateral mistake, and indemnification) do not come within the ambit of the
release contained in the Purchase Agreement. We disagree.
In the Purchase Agreement, the release read:
6.1. Release of Buyer and Companies. Except
for the covenants and obligations under this Agreement,
each of Seller, for itself, and Mary Jane Diebold, for
herself, and their respective affiliates, members,
successors and assigns, and for all other persons or
entities claiming by, or through or under Seller, hereby
fully and forever remises, releases, acquits and
discharges each of the Companies and Buyer and their
respective managers, members, directors, officers,
employees, agents, representatives, heirs, successors and
assigns (each a “Released Party” and collectively, the
“Released Parties”), and each of them, of and from any
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and all manner of actions, causes of action, suits, sums of
money, accounts, reckonings, covenants, controversies,
agreements, promises, damages, judgments, proceedings,
executions, debts, obligations, liabilities, liens, security
interests, claims and demands of any nature whatsoever,
whether at law, in equity or otherwise, whether in tort,
contract or otherwise, whether pursuant to any statute,
ordinance, regulation, rule of common law or otherwise,
whether direct or indirect, whether punitive or
compensatory, whether known or unknown, whether
presently discoverable or undiscoverable, whether
suspected or claimed, and whether fixed, contingent or
otherwise, which Seller or Mary Jane Diebold ever had,
now has or may have against any Released Party, based
in whole or in part on any contract, agreement,
arrangement, commitment, loan, advance, offer, facts,
conduct, activities, omissions, transactions, events or
circumstances, whether known or unknown, which may
now exist or which may have existed, occurred,
happened, arisen or transpired at any time prior to or on
the date hereof.
Purchase Agreement at 5.
It is said that “a release is a discharge of a claim or obligation and
surrender of a claimant’s right to prosecute a cause of action.” Frear v. P.T.A.
Idus., Inc., 103 S.W.3d 99, 107 (Ky. 2003). Stated differently, a release constitutes
a “private agreement amongst parties which gives up or abandons a claim or right.”
Id. As a release is a contract, it “will be strictly enforced according to its terms
absent ambiguity.” Grass v. Akins, 368 S.W.3d 150, 153 (Ky. App. 2012). And,
the interpretation of a contract presents an issue of law for the court. Frear, 103
S.W.3d at 105.
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The terms of the above release are unambiguous and broad.
Thereunder, the Estate and Mary released all known or unknown claims, causes of
action, covenants, liability, and demands against Stephen based upon contract,
agreement, conduct, omission, or transaction that existed or may have existed prior
to or at the time of the Purchase Agreement. This broad release plainly includes
the Estate and Mary’s claims of mutual/unilateral mistake and indemnification for
the additional gift tax incurred by the Estate. Therefore, we conclude that the
Estate and Mary’s claims against Stephen are barred by the release contained in the
Purchase Agreement.
We deem any other contentions of error to be moot or without merit.
In sum, we are of the opinion that the circuit court properly dismissed
the Estate and Mary’s claims against Stephen.
Cross-Appeal No. 2020-CA-0723-MR
and Appeal No. 2020-CA-1147-MR
Stephen argues that the circuit court’s December 20, 2019, Opinion
and Order was not final and appealable.1 Stephen maintains that the December 20,
2019, Opinion and Order was inherently interlocutory because his claim for
indemnification under Section 9.2 of the Purchase Agreement had not been
adjudicated. Stephen believes that his indemnification claim for attorney’s fees
1
By order entered May 20, 2020, we note that the Court of Appeals denied Stephen E. Diebold’s
motion to dismiss Appeal No. 2020-CA-0051-MR as interlocutory.
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and costs was an “integral part of the claims adjudicated.” Stephen’s Reply Brief
at 2. In support of his argument Stephen cites to Francis v. Crounse Corporation,
98 S.W.3d 62 (Ky. App. 2002).
A final and appealable judgment is one that adjudicates all the rights
of all the parties or is made final under CR 54.02. CR 54.01. In an action
involving multiple claims and/or multiple parties, CR 54.02 permits the trial court
to make an otherwise interlocutory order final and appealable in certain
circumstances. Under CR 54.02, an interlocutory order may only be made final
and appealable if the order includes both recitations – (1) there is no just cause for
delay (2) the decision is final. However, CR 54.02 will not convert an inherently
interlocutory order into a final and appealable. Hale v. Deaton, 528 S.W.2d 719,
722 (Ky. 1975).
Although Stephen cites to Francis, 98 S.W.3d 62, to support his
contention that the December 20, 2019, Opinion and Order is inherently
interlocutory, we view Francis as inapposite. In Francis, 98 S.W.3d 62, the Court
of Appeals determined if attorney’s fees were an element or part of a claim, a
judgment resolving such claim without determining attorney’s fees constituted an
innately interlocutory judgment.
Conversely, in this case, Stephen seeks attorney’s fees under his claim
for indemnification per the Purchase Agreement. This indemnification claim has
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not been adjudicated by the circuit court. Rather, the December 20, 2019, Opinion
and Order fully adjudicated the Estate and Mary’s claims against Stephen and
included complete finality recitations per CR 54.02. Thus, Francis, 98 S.W.3d 62,
has no application to this case, and the December 20, 2019, Opinion and Order is
final and appealable. As we have resolved the parties’ appeals, the circuit court
may now reach the merits of Stephen’s indemnification claim for attorney’s fees
and costs under the Purchase Agreement.
We view any remaining contentions of error as moot or without merit.
For the foregoing reasons, we affirm Appeal No. 2020-CA-0051-MR,
Cross-Appeal No. 2020-CA-0723-MR, and Appeal No. 2020-CA-1147-MR.
ALL CONCUR.
BRIEFS FOR BRIEFS FOR APPELLEE/CROSS-
APPELLANTS/CROSS- APPELLANT:
APPELLEES:
Janet P. Jakubowicz
Charles G. Middleton III Brent R. Baughman
Louisville, Kentucky Benjamin J. Lewis
Aaron W. Marcus
Louisville, Kentucky
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