RENDERED: JULY 9, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0991-MR
GARY HIBBELN APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE OLU A. STEVENS, JUDGE
ACTION NO. 13-CI-04376
KEN JORDAN; AND
KEN JORDAN CONTRACTING, LLC APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: MAZE, TAYLOR, AND K. THOMPSON, JUDGES.
MAZE, JUDGE: Gary Hibbeln (Hibbeln) appeals from a judgment of the
Jefferson Circuit Court dismissing his claims against Ken Jordan and Ken Jordan
Contractors, LLC (collectively, “Jordan”). This is the third appeal of this case,
following two prior remands by this Court. We conclude that the “law of the case”
doctrine precludes Hibbeln from raising issues which were not presented in the
first appeal. We further conclude that the trial court properly applied the mandate
of this Court on remand and did not err by denying Hibbeln’s motion to re-open
the proof for new evidence. Hence, we affirm.
The relevant facts of this matter were set forth in a prior appeal as
follows:
The property at issue is a historic residence located
at 1308 Highland Avenue, Louisville, Kentucky. Prior to
Ken Jordan’s involvement, the residence was ordered to
be demolished; however, the property was spared.
Hibbeln and his partner on the Highland Avenue project,
Stayce McCracken, met Jordan who was performing
insurance claim work at the property to repair a collapsed
chimney. Based on Jordan’s work, Hibbeln and
McCracken hired Jordan as the general contractor for
additional renovations on the residence.
In June 2010, Jordan submitted a proposal to
Hibbeln listing several repairs to be made. The cost of
the individual repairs was not listed, but the total amount
for all repairs was estimated to be $87,290.00. The
proposal further provided that payments for the work
were to be made on a weekly schedule, in accordance
with the proposal. Hibbeln signed the proposal, and
payments were made, more or less, according to
schedule. Hibbeln paid Ken Jordan Contractors a total of
$85,764.00 under the June 2010 proposal.
A second proposal was submitted by Jordan to
Hibbeln in October 2010. The proposal listed ten repairs
to be completed and a total estimated cost of $5,100.00.
Hibbeln paid $4,590.00 under the second proposal. In
all, Hibbeln paid $90,354.00 to Ken Jordan Contractors
for reconstruction services.
-2-
On August 10, 2013, Hibbeln filed a complaint
against Jordan claiming breach of contract, conversion,
and bad faith. He sought compensatory and
consequential damages, attorney fees, and punitive
damages.
The matter was set for trial on February 18,
2016. . . .
...
At trial, several witnesses testified, including Gary
Hibbeln, Stayce McCracken, home renovation expert
John Klienholter, architect Mark Bailey, all in addition to
Ken Jordan.
The renovation work was initially performed
without incident. However, according to Hibbeln and
McCracken, progress slowed considerably, and Jordan
was no longer coming to the job site to supervise his
workers. Mark Bailey was hired as the architect on the
project, but he was terminated when Hibbeln and
McCracken decided his services were no longer needed.
As Jordan’s work continued, Hibbeln and McCracken
became less satisfied. Nevertheless, payments to Jordan
continued based upon the payment schedule called for in
the first proposal, without presenting any quality or
progress complaints to Jordan. Hibbeln and McCracken
further contended they gave Jordan additional projects in
the fall of 2010 with hopes to motivate his performance
on the residence.
After some attempt to work through the issues with
Jordan, Hibbeln and McCracken decided to terminate his
services in early 2011. Another contractor was hired to
take over the project to fix and complete Jordan’s work.
Hibbeln testified that he paid $87,239.51 to this other
contractor to fix Jordan’s work on the residence.
-3-
John Klienholter testified as Hibbeln’s expert
witness. He had twenty-five years’ experience as a
contractor. He went to the residence and performed an
inspection. He examined photographs provided by
Hibbeln of Jordan’s work. Klienholter provided estimates
for the costs of various line items contained in Jordan’s
first proposal for a home similar to the subject of this
litigation.
At the conclusion of Hibbeln’s case, Jordan moved
to dismiss his claim for conversion, punitive damages,
and attorney fees. The court granted Jordan’s motion.
Jordan followed with his proof, the trial concluded, and
the case was submitted.
The Jefferson Circuit Court found the following:
The Court finds the parties had an agreement and
that a written contract signed by both parties is
unnecessary under the circumstances. The Court
determines that the Defendant was paid in
accordance with the schedule of payments,
regardless of whether the work was actually
performed. There is a conflict in testimony, but
the Court further determines that the Defendant did
not complete the work as contemplated by the
parties’ agreement. The testimony established that
the following work was completed: Pull building
back and straighten building, remove existing
footer, pour new footer/foundation wall, removal
of existing footer along left side and a portion of
the sheathing installation. The Court finds that the
remaining work was not completed or was
completed in an unsatisfactory manner. Neither
party was able to testify as to the specific amount
charged for each task listed on Plaintiff’s exhibits
one and two, but Plaintiff’s expert, John
Klienholter, testified as to the costs for each item
listed on Plaintiff’s exhibit one (1). He
acknowledged those figures were “ballpark”
-4-
estimates. In all, Plaintiff claims he paid
Defendant about $66,000 for work that was not
completed or completed in an unsatisfactory
manner. Based on the testimony, the Court
determines approximately 50% of the total
contemplated repairs were either not completed or
not completed in a satisfactory manner.
Accordingly, judgment shall be entered for the
Plaintiff in the amount of $45,000 plus court costs.
Post-judgment interest shall accrue at 12% per
annum.
Jordan v. Hibbeln [Jordan I], No. 2016-CA-000406-MR, 2018 WL 3090442, at
*1–2 (Ky. App. Jun. 22, 2018).
In the first appeal, this Court reversed the judgment for Hibbeln,
concluding that “Hibbeln failed to provide the court with sufficient evidence to
determine calculable, non-speculative damages. The lack of evidence renders the
circuit court’s award of $45,000 in damages erroneous.” Id. at *5. Consequently,
this Court vacated the judgment and remanded, giving the circuit court explicit
direction to enter a new judgment explaining the non-speculative method used for
calculating damages and the evidence supporting the award. Specifically, the
panel directed the circuit court to determine either: “(1) that Hibbeln failed to
carry his burden of presenting non-speculative proof of his damages, or (2) that
Hibbeln did carry his burden of presenting non-speculative damages, but that the
judgment failed to articulate that proof in a way that would facilitate rather than
frustrate appellate review.” Id. at *6.
-5-
On remand, the trial court entered a new judgment for Hibbeln for
$45,000. In a subsequent appeal, this Court again reversed, finding that the trial
court failed to comply with the Court’s mandate from the prior appeal. Ken Jordan
& Ken Jordan Contractors, LLC v. Hibbeln [Jordan II], No. 2019-CA-000310-
MR, 2019 WL 6248320, at *3 (Ky. App. Nov. 22, 2019). Consequently, the Court
again remanded the matter for the findings required by Jordan I. Id.
On the second remand, the trial court entered new findings and a
judgment. In pertinent part, the trial court found as follows:
The Court previously determined the Defendant
[Jordan] did not complete certain tasks as assigned, but
the conclusion that those tasks amounted to $45,000 is
speculative. The Plaintiff [Hibbeln] is charged with the
burden of proving his damages. In this instance, the
Plaintiff failed to produce evidence of the specific value
of the various tasks that were not completed or not
completed to his satisfaction. Plaintiff’s motion to
supplement the proof in this case is considered and
denied. The Court determines that the Court of Appeals
order remanding this matter does not contemplate the
taking and consideration of further proof, but rather
instructs this Court [to] review the record and submit
specific findings on Plaintiff’s claims or find the Plaintiff
did not carry his burden. The Court finds the latter.
Based upon this conclusion, the trial court granted a judgment for
Jordan and dismissed Hibbeln’s complaint. Hibbeln now appeals from this
judgment.
-6-
Hibbeln first argues that the trial court abused its discretion by
limiting his counsel’s cross-examination of Ken Jordan during trial. In response,
Jordan notes that Hibbeln’s brief fails to provide any supporting references to
where this issue was preserved, as required by CR1 76.12(4)(c)(v). Jordan further
argues that the law of the case doctrine precludes Hibbeln from raising the issue in
this appeal. We find the latter argument to be dispositive.
As discussed in Jordan II, the law of the case doctrine designates that,
if an appellate court has passed on a legal question and remanded the case to the
court below for further proceedings, the legal determinations may not be revisited
on a subsequent appeal in the same case. Inman v. Inman, 648 S.W.2d 847, 849
(Ky. 1982). An extension of this doctrine also precludes a subsequent appellate
court from reviewing decisions of the trial court which could have been but were
not challenged in the prior appeal. Brown v. Commonwealth, 313 S.W.3d 577, 610
(Ky. 2010). This rule is not based on the barred issue establishing the law of the
case, “but instead on the party’s inaction in failing to raise the issue in a manner
consistent with the court’s general policy against piecemeal appeals. Id. at 610-11.
In the current case, Hibbeln had the opportunity to raise the cross-
examination issue by means of a protective cross-appeal. However, he failed to do
so. To the contrary, in his brief in Jordan I, Hibbeln argued that Jordan was not
1
Kentucky Rules of Civil Procedure.
-7-
prejudiced by the trial court’s limitations on its cross-examination. And this Court
noted that both parties had agreed to the trial court’s division of time. If Hibbeln
had some objection to that discretionary decision, he was obligated to raise it in the
first appeal. Therefore, we agree with Jordan that Hibbeln is now barred from
raising the same issue in this appeal.
Hibbeln primarily argues that the trial court abused its discretion by
denying his motion to present new evidence of damages on remand. In a
subsequent appeal following a retrial after remand, this Court’s role is limited to
whether the trial court properly construed and applied the mandate. Inman, 648
S.W.2d at 849. While the rule does not preclude the taking of new evidence on
remand in all cases, the trial court must strictly follow the mandate set out in the
prior appellate decision. Id. See also Buckley v. Wilson, 177 S.W.3d 778, 781
(Ky. 2005). Thus, we must look to the basis for this Court’s order of remand in the
first appeal.
In Jordan I, this Court found that the trial court’s award of damages to
Hibbeln was not supported by substantial evidence and was therefore clearly
erroneous. The Court noted that Hibbeln initially sought to recover the costs he
had to pay to another contractor to complete the work, and he presented evidence
at trial supporting that claim. However, he abandoned that claim at trial and only
sought a refund of monies paid to Jordan for work he failed to perform or
-8-
inadequately performed under the proposals. Jordan I, 2018 WL 3090442, at *5.
The Court also noted that Hibbeln did not provide any evidence of the specific
costs incurred for completing any particular item of work provided in the
proposals. Id.
In addressing the sufficiency of the evidence, this Court concluded,
The damage award is not supported by substantial
evidence and is, therefore, erroneous. Our review of the
record indicates that the court’s two determinations - the
number of repair items completed and, subsequently, the
value of incomplete or unsatisfactory work - are
inconsistent and neither is supported by evidence in the
record. The cost of completing half the number of tasks
listed on the proposals may or may not equate to half the
amount of money paid, and there was no testimony
whether it did or did not. The resulting award is not
derived by assigning a value or cost to any specific tasks
deemed compensable because they were not completed
or were unsatisfactorily completed. Nor are such values
readily determinable from evidence presented at trial.
There were roughly twenty tasks contained in the first
proposal and ten included in the second. Without an
itemization of the costs of the tasks listed in the
proposals, and even further, a classification of what work
was completed in full, completed in part, completed but
not satisfactorily, or not completed at all, damages are
speculative at best. All damages must be proved to a
reasonable degree of certainty. [Ford Contracting, Inc.
v. Kentucky Transp. Cabinet, 429 S.W.3d 397, 407 (Ky.
App. 2014)]. There remain too many undetermined
variables; they are undeterminable on review; and that
prevents this Court from affirming a damage award.
Id. at *6.
-9-
However, the panel did not simply conclude that the judgment was
unsupported by substantial evidence. Instead, the Court remanded, directing the
trial court make one of two possible findings based on the proof presented. In
particular, the latter finding permitted the trial court to find that “Hibbeln did carry
his burden of presenting non-speculative damages, but that the judgment failed to
articulate that proof in a way that would facilitate rather than frustrate appellate
review.” Id. (emphasis added). When Jordan I is read in its entirety, we conclude
that this Court remanded the matter for specific findings on a single issue based
solely on the evidence already in the record. Therefore, the trial court properly
construed the Court’s mandate as not permitting the introduction of new evidence.
Accordingly, we affirm the judgment of the Jefferson Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEES:
Robert A. Florio J. Fox DeMoisey
Louisville, Kentucky Louisville, Kentucky
-10-