RENDERED: SEPTEMBER 28, 2017 TO BE PUBLISHED 

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2014-SC-000512-DG
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·AEP INDUSTRIES, INC.



## v. ON REVIEW FROM COURT OF APPEALS CASE NO. 2Q13-CA-000132
. WARREN CIRCUIT COURT NO. 12:-CI.:.oo467 B.G. PROPERTIES, INC.

OPINION OF. THE COURT BY JUSTICE VENTERS VACATING.AND REMANDING APPELLANT

APPELLEE

·· AEP Industries, Inc: (AEP) appeals from an opinion of'the Court of Appeals which vacated a-final order ofthe Warren Circuit Court granting AEP's motion for specific performance ofa real.estate option contract·between AEP filid B.G. Properties, Inc. (BG). The Court ofAppeals.held that the circuit court granted speeific performance ofthe option contract prematurely because disputed·issues offact material to that form ofreliefhad been left unresolved in the circuit court. The Court**o~** Appeals**remande~~** the matter for resolution of ·those issues. We granted discretionary review, and upon review we vacate the

. . opinion ofthe Court ofAppeals and remand the action·to. the trial court with**dire~tion** to dismiss any remaining Glaims. ·' I. FACTUAL AND PROCEDURAL BACKGROUND· BG and its predecessor in interest owned an industrial building located
on a 19.7-acre tract in Bowling Green, Kentucky. The building had been used

. . for manufacturing flexible plastic packing products and contained features uniquely suited to that purpose. AEP leased the property from BG for use in its business ofmanufacturing flexible plastic packaging. AEP arid BG were

. ' mutUally obligated under several agreements concerning the property. Those agreements provided AEP with an option to purchase the property. 1 The specific terms of.the purchase option are provided in two documents: the "Consent to Assignment ofLease and Grant ofOption 

### fo Purchase" made in 2001 and the "Agreement Modifying Sublease and Option" made iri 2010. These two documents collectively provide the terms ofAEP's option to purchase ·the property. We refer to those documents together as the "Option Agreement"
..

or "the Agreement." The Option Agreement expressly provided the following four-stage · process for ascertaining the purchase price ifAEP decided to**exerci~e** its purchase option. First, the parties would attempt to negotiate a fair**pur~hase** price. ·Second, ifthe negotiation failed to achieve a mutu:ally agreeable'price,

' ' then BG would deliver to AEP an appraisal ofthe property by a qualified

1 More specifically, AEP subleased the property from a primary leaseholder and certajn ofthe· agreements were initially executedby the parties'respective predecessors in interest; however, these details are not relevant to our review. -, 2professional appraiser2 with thy**app~aisal** subject to. special requirements as

· further described below. Third, ifAEP declined to purchase at BG's appraised

' . . . ' value, then AEP would obtain its own qualified appraisal a_nd**s~brpit** it to BQ.**Fourth~** arid finally, ifBG rejected_ AEP's appraised value, then AEP's appraiser

. and BG's appraiser.would together select a third appraiser whose independent

valuation ofthe property would become the final purchase price. The Option Agreement included two other terms that are significant in
our review: 1) eve·ry appraisal ofthe property undertaken to determine the purchase price would ascertain "the fair market value based on its highest and best use, plus thevalue ofall special features and fixtures located therein for AEP's use as an extrusion and flexible packaging manufacturing facility;" and 2) the Agreement granted AEP seven days after the final deterrriination ofthe

.purchase price under stage four to withdraw the exercise ofits option to

purchase the property. In August 2011, AEPinformed BGthat it**.intend~d** to exercise the option to**ptirchas~** the property, thereby triggering the four-stage process for · determining the price
..Tbe initial attempt to negotiate a purchase price was unsuccessful.· BG then obtained an appraisal by BrantleyAppraisal Company,

. . - /,. . which valued the property at $7,500,000. AEP rejected that price, and as requfred by the Option Agreement, AEP then obtained its own appraiser, selecting CBRE, which valued the property at $3,550,000.

2 The·Option Agreement setforth particular.qualifications for the appraisers used. 3BG rejected CBRE's valuation. AEP then attempted to initiate the final stage ofthe process, the**s~lection** ofthe third appraiser, but BG refused to cooperate. BG claimed that AEP did not properly comply with the third stage of the pricing process because the.CBRE appraisal tendered by AEP did not meet

. . . the special conditions ofthe Option Agreement for a value based upon "the highest and best use ofthe property" and for the inclusion ofthe "special features arid fixtures located therein for AEP's use as an extrusion and flexible packaging manufacturing facility." Accordingly,.BG insisted that before moving

.to the fourth stage ofthe pricing**process~** AEP was obligated first to submit an appraisal that complied with the special conditions ofthe Option Agreement. Instead ofacceding to BG's demand to submit a different appraisal, AEP filed a.n'-action in the Warren Circuit Court alleging that BG was in breach of the Option Agreement for failing to proceed with the selection ofthe third

.appraiser
. .AEP sought a court order compelling BG to participate in the

appointment ofa third appraiser. BG responded to the suit with an answer and**co~nterclaim.** BG invoked the well-settled equitable principle that specific performance ofa contract will only be granted when the party seeking the_specific performance has itself complied with all terms ofthe contract. To be granted specific performance of 'an agreement for the sale ofreal property, all conditions precedent to the sale must have been complied with by the party seeking such specific performance.3

3 See 25 Williston on Contracts§ 67:73 (4th ed. 2013) ("The performance ofall conditions precedent is generally required before specific performance will be 4BG asserted that AEP's failure to submit a proper appraisal at the third stage

., ofthe pricing process was a breach ofthe Option Agreement by AEP that

barred its claim for specific performance. BG .also claimed that in addition .to the disagreement about the CBRE appraisal, AEP had also breached the provision ofthe lease agreement requiring it to keep the roof ofthe building in good repair. BG contended that the appraisals usedto determine the purchase price should not be discounted by the .deteriorated condition ofthe roofthat AEP had failed to maintain. Eve:r;itually, upon motions for summaryjudgment, the circuit 

### court

· determined that CBRE's appraisal complied with**~he** conditions ofthe Option ·

Agreement. The court directed BG to proceed with the fourth stage ofthe

, appraisal process, the selection ofthe third and final appraiser. The circuit·

### ~ourt fixed a deadline for obtaining that appraisal and held the remainder of the action in abeyance pending its completion. :Iri compliance with the circuit court's order, BG and AEP selected G. Herbert Pritchett as the third appraiser. Pritchett valued the property at**·$3~834,000.** AEP was satisfied with that price, but BG refused to transfer the

·property, claiming that Prit.chett's appraisal suffered the same deficiency as

CBRE's appraisal: it failed to account for "the highest and best use ofthe property" as defined in the Option**Agre~ment** and it failed to factor in the special features that made the property uniquely suited to AEP's
granted."); WestKy. Coal Co. v. J.D. Nourse, 320 S.W.2d·311 (Ky. 1959); Puritan Homes, Inc. v. AbeU, 432 S.W.2d 632 (Ky. 1968). 5manufacturing process, as set forth in the Option Agreement. BG also complained that Pritchett's appraisal unfairly diminished the value ofthe
.
. '

. . . . . . property due to the poor condition ofthe roofthat AEP had failed to maintain. AEP then moved the circuit court for an order**compellin~** specific performance ofthe Option Agreement by" d}recting BG to convey the property at Pritchett's**apprais~d** value of $3,834,000. In addition, AEP demanded a credit against the purchase·pnce of$407,987.37 for the additional rent.payments.it had incurred under the lease due·to BG's failure to voluntarily cooperate in the selection ofthe third appraiser iri a timely manner.4· BG.responded by reiteratingits position thatAEP had initia).ly breached the agreement by failing to tender a qualifying appraisal and for that reason it could not demand specific performance ofthe very contract it had breached. By order dated December 19, 2012, the circuit court rejected BG's arguments.· It determined that Pritchett's appraisal ofthe fair market yalue of property at $3,834,000**prop~rly** accounted for the**~ite's** "special features and fixt:ures" and was consistent with the terms ofthe Option Agreement and that court's previous order. The circuit court also concluded that the Pritchett
7 appraisal properly accounted for the "roof**issu~"** a,nd, therefore,.no variance

, from the**app~aised** value was required to accommodate that concern.. The
.

4 Butfor BG's opposition to the appraisals, tlie transfer ofproperty pursuant to the parties' Option Agreement, and**th~** corresponding cessation ofAEP's·rez:it · obligation under the lease, would have occurred by June l; 2012. The rent credit was calculated to compensate AEP for the additional rent paid between June 1, 2012 and the eventual transfer ofthe property on December 31, 2012. 

### 6 .circuit court also granted AEP's demand for a credit for the additional rental

·· payments incurred due to BG;s delaying the transfer ()fthe property during the

dispute. 'The December 

### i9, 2012 order directed BG-to convey the property to AEP for the price fixed.by Pi-itchett's appraisal, $3,834,000.00. The circuit ·court also awarded AEP claimed rentcreditof $407,987.37, for a net payment ·

· obligation of$3,426,012.63 due to BG. Rathe.r than seeking immediate reliefto abate the·enforcement ofthe order and thereby avofd transferring the property for what it regarded as ' . 

### . inadequate consideration, and rather than tendering a conciitional deed stating the involuntary nature ofthe**conve~a:n.ce** and reserving its objection to the · forced sale at an inadequate price, BG filed with the circuit court a "Motion**~or** .

.Approval ofDeed Form and an Order**~reserving** Claims," tendering a · . ' ' ' conventional general warranty deed for the unconditional transfer ofthe**pr~perty** to AEP in fee ·simple for the stated consideration of**$3A26,012.63~** s AEP responded to' BG's motfon, voicing no objection to the form ofthe deed but vigorously opposing the entry ofan order that would sanction the transfer oftitle while l<?aving the consideration to be paid for the property open to appeal .and further litigation
.. AEP argued that

# atransfer bftitle leaving the purchase pric'e**.f~r** later determination would violate AEP's**righ~** underthe

s Itis worth noting that the purchase price as listed on the deed

### is not consistent with the Pritchettappraisal value but instead directly incorporates the trial · court's ruling on the rent creditissue. The stated**consideratio~** ·equals the appraised value ofthe propertyminus the unrelated rent credit. The effect ofthis anomaly has 'not been addressed by'the parties,. and we express no opinion upon it. 7Option Agreement to reject the final price and walk away from the option. AEP argued that BG's remedy was to seek a stay ofthe enforcement ofthe circuit court order pending appeal. The. circuit court entered an order approving the form ofthe deed but

. - .. otherwise denying·BG's requested relief
..The order was designated as final and
. appealable pursuant to CR 54.02(1). Immediately thereafter, BG executed the deed acknowledging the receipt from AEP ofthe stated consideration of$3,426,012.63 for which BG did expressly "bargain, alien, grant, deed, sell, and convey unto [AEP] in fee simple [the subject property]." AEP promptly recorded the deed. BG did not record a lispf!ndens notice to signify its retention ofongoing litigative interest in the· property. Before completing the transfer ofthe property, BG had neither asked the .Gircuit court to fix the amount ofa supersedeas bond nor had it posted a supersedeas bond. BG undertook no measures to forestall the transfer ofthe property to ,AEP for the stated price of$3,426,012.63. Instead, after closing on

. . the transfer ofthe property, BG filed a notice ofappeal**se~king** review ofthe

. circuit court's order awarding specific performance·ofthe Option Agreement. Although BGpresented the Court ofAppeals wlth six allegations oferror gen:nane to the disputed appraisal process and the valuation ofthe property,

. . BG requested no reliefto negate the conveyance ofthe property.. BG did not

.**ar~e** thatthe conveyance should be set aside or disturbed in any way other than a re-assessment ofthe sales price
.. 8The Court ofAppeals vacated the circuit court's order and remanded the
.. ·case for further proceedings, reasoning that the circuit court had not" adequately addressed the threshold issue ofwhether, as alleged by BG, AEP had first violated the Option Agreement with a faulty appraisal°and thus.was barred from. seeking specific performance. Citing this Court's decision in 

### DreamersLLCv. Don'sLumber&Hardware;Inc., 366 S.W.3d 381(Ky.2011),

. . . .

### th~ Coμrt ofAppeals rejected AEP's argument that BG's conveyance ofthe property and. acceptance ofthe coriside:r;-ation rendered moot the dispute over the property's value. We granted.discretionary review to examine whether BG can continue to challenge the enforcement ofthe Option Agreement after it conveyed the property·to AEP by general warranty deedwithout reservation, and

·correspondingly accepted the stated consideration for the transfer. We conclude thatit cannot. BG's execution and delivery ofa general warranty

. . deed without

# an express reservation ofrights and its acceptance ofthe stated consideration foreclol3ed its optioI?- to further challenge**~e** enforcement of

. . . . Option Agreement. Accordingly, we. reverse the. Court ofAppeals. II. ANALYSIS For the reasons stated below, we conclude BG's.execution and delivery ·of

. the general warranty deed conveyin.g the property to AEP in fee simple, without

qt:1,alification or condition, coupled with its unconditional acceptance ofthe

.purchase price renders the controversy moot.· Assuming, as BG contends, that

the circuit col1rt erred by granting specific performance ofthe Option 9Agreement at the purchase price fixed by the Pritchett appraisal, then BG's appropriate appellate remedy would be the reversal of**th~** circuit court's order·

· and the restoration ofthe parties to the status quo ante. Reversing the circuit

court's order would put the parties back in the circuit court to adjudicate" the

·issues pertin.ent to establishing a purchase price for the execution ofthe

Option Agreement and allow themto litigate the collateral issues arising from. the parties' lease. That reliefis now unattainable because the property has
now been unconditionally soid'. BG offers no argumentseeking to unwind, or nullify, that sale to restore the status quo ante. Moreover; BG's requested

·remedy is a chance to re-litigate upon remand o,nlythe purchase price ofthe

.property without nullifying the conveyance. That result does not restore the

status quo ante because it eliminates AEP's contractual right to withdraw from the purchase within seven days ifit objects to the final price. BG did not preserve its objections to the trial court's order of specific performance ofthe Option Agreement by posting- a supersedeas bond pursuant to CR 62.03, CR 73.04, and CR 73.06. Nor did BG avail itselfofan alternative
means of staying the order by seeking immedi.ate relieffrom the Court of Appeals,staying the matter pending appellate review. Instead, BG transferred the property. As we held in Green Valley Environmental Corp.**v~** Clay, citing Section 111 ofKentucky's Constitution,6 the Court ofAppeals has the power

6**I~** pertinent part, Section 111 ofthe Kentucky Constitution provides: "The Court ofAppeals
... may 'issue all writs necessary in aid ofits appellatejurisdiction, or the ·complete determination ofany cause within its appellatejurisdiction." 10"to grant a stay pending appeal in order to maintain thestatus quo ofthe case pending before it on review." 798 S.W.2d 141, 143-144 (Ky. 1990) (citing Crady 

### v. Cranfill,. 371 S.W.2d 640 (Ky. 1963)). In summary, BG sought none of the available remedies·that would have enabled it to avoid the immediate

. . enforcement ofthe trial court's order and defer, at least temporarily, the conveyance ofthe property for what it regarded as an.improperly determined pnce. While not dispositive, the opinions ofour predecessor Court in Rose v, Cox, 179 S.W.2d 871(Ky.1944), and Sedley V
.. Louisville 'Trust Co., 419 s.w.2ci 531, 532 (Ky. 1967), are instructive even though they contain important factual differences. Those cases establish that when property is sold to a third party pursuant to a judicial sale ordered by the trial court, in the absence ofa supersedeas bond or other stay ofexecution, a subsequent determination by
an appellate court that the order directing the sale was erroneous does not void the sale. "Where the court hasjurisdiction qfthe parties and the subject matter ofthe suit, and has statutory authority to decree the sale, a subsequent reversal ofthejudgment decreeing the sale is a mere declaration that the judgment is erroneous, but does not render it void." Rose, 179 S.W.2d at 872. "The fact that thejudgment ordering the sale·ofthe property was not superseded prevents us from granting [the Appellant] the reliefto which she is allegedly entitled" and the case is thereby moot. Sedley, 419 S.W.2d at 533. Obviously, the instantcase does not involve a sale to a third party. However, upon review ofauthority from otherjurisdictions that have more 11precisely addressed the issue before us, we are persuaded that the same result·

. ' . . . is compelled under the circumstances that confront us.here. For.example, in Dahlin v. Amoco Oil Corp., 567 N.E.2d 806 (Irid. App. 1991), the Dahlins leased a parcel ofland to Amoco Oil. The lease also gave Amoco the option to purchase the property tinder certain conditions. Amoco exercised its option to ·purchase the Dahlins' land. Wheri the Dahlins refused. to convey the land, Amoco filed an action for specific per.formance; The Dahlins counterdaimed for breach ofcontract and unjust enrichment. The trial court granted surrimaryjudgment for Amoco on its specific performance claim; thereafter, the Pahlins sold the real estate to Amoco. Addressing the Dahlins' argument on appeal that the trialcourt erred by granting summary judgment on Amoco's specific performance claim, the Indiana Court ofAppeals stated as follows: Ifa party to a judgmentvoluntarily acquiesces in or recognizes the validity of suchjudgment or otherwise takes a position which would be inconsistent with any theozy other than the validity ofthejudgment, he has impliedly waived his right to contest the validitY ofthejudgment on appeal. Id. at 809. The Dahlins' conveyance ofthe property· toAmoco was inconsistent with their appellate**positic~n** that the order compelling specific performance was erroneous. "By electing instead to sell the property, they have waived th.eir right to argue on appeal that the specific performance decree was invalid and unenforceable, and therefore their appeal on this issue is moot." Id. at 810.

12. . Siniilarly,.in 

### Schuppener v. Bruno, 395 So.2d 1234 (Fla. Dist. App. 1981), ·the contractual purchasers ofland.sued for and obtaineda judgment ordering_
. specific performance ofthe contract directing the sale ofthe

### prope~ty. The sellers appealed, but while the.appeal'was pending, th.e sellers**a~cepted** the

. purchase price and recorded the purchaser's mortgage on the ·property in

question. The Florida court held that "[u]nder these circl.imstances, the issues

· in [this] appeal
... appear to u.s to be moot." Id. at 1235.
·our review oftheunusual**circum~tances** ofthis case**i~** also guided and influenced by the strong principles oflawthat accord a measure of sanctity to thelanguage ofdeeds and other written and recorded instruments oftitle. "As

. . . the deed was acknowledged and lodged for record the day it bears date, it was constructive notice to the whole world in whom

### th~ legal title was vested.'' Ott

. . . 

### .v. Ott's

### Administrator, 2 Ky. Op. 114 (1867); 7 

### seeHaven v...Wallace, 160 S.W.2d · 619, 622 (Ky. 1942) ("This deed was ofrecord and constituted constructive notice to the world that appellant had retained this right _or reservation in and to.the rentals on the land."); 

### Wells Fargo Financial Kentucky, Irie. 

### v. Thomer, 315 S.W.3d 335, 338-339 (Ky. App. 2010) ("A recorded mortgage serves the· ' ".ptirpose ofestablishing the lender's"interest in the land that secures the debt and notice to the world ofthe lien created thereby.").**~ignificant** legal consequences flow from the language used to convey interests in real property,

7 1867·WL 3569 at *1 (Ky. Nov. 21, 1867).and because the deed gives "notice to the world," its effects extend beyond the limited interests ofthe parties
.

.The words ofthe deed are so important that, upon its delivery and · acceptance, the deed**"extinguishe~** or supersedes the provisions ofthe underlying contract for the conveyance ofthe realty.". ·Drees Co. v. Osburg, 144 S.W.3d 831, 832 (Ky. App. 2003) (citation omitted). Borden v. Litchford, 619 S.W.2d 715, 717 (Ky. App. 1981) reflects the nearly-universal principle that the "merger doctrine holds that all prior statements and agreements, both written and oral, are ·merged into the deed and the parties are bound by that. instrument." Subject to limited exceptions which are not applicable here, the acceptance ofa deed tendered in performance ofan agreement to convey merges the written or_oral agreement to convey in the deed,**~d,** thereafter, the provisions.ofthe underlying contract governing the transfer ofthe property are extinguished and th·e deed regulates the rights and liabilities ofthe parties. 77 Am. Jut. 2d Vendor andPurchaser§ 227 (2017). As there is a presumption ofmerger upon the delivery and acceptance ofthe deed, contrary intentions of ·the parties must be clear and manifest and may be shown from the terms of the deed itself. See Vernon v. Vernon, 277 S.W·. 248, 248 (Ky. 1925)
.. There is no doubt that the merger doctrine would control the·issue ifBG had simply transferred the property pursuant to the_terms ofthe Option Agreement without the intervention ofthe circuit court order. We see no reason for departing from the doctrine when the transfer resulted from a court order enforcing the terms ofthe Option Agreement. In either case, any unresolved conditions ansing from the contract or the court order could be 14preserved by incorporation into the deed. In that respect, it is significant that the circuit col'.lrt did not dictate the terms ofthe deed. Although at BG's · request the·circuit court approved the form ofthe deed, BG prepared the deed
.

. .

. ' . .

and completeiy controlled its terms and conditions. BG

### c~uld have .preserved · its objection to the consideration by referencing that fact, along with the pending litigation, in the deed. Iristead, the deed contains no limitation or reservationabout the consideration to be paid for the proper.ty; and it contains

. no reference to the terms· ofthe option contract for est8:blishing the fair market

value ofthe property. Most significantly, it incorporates no language to signify· that the transact1on is anything-other than,a completed, arm's length transaction between a willing buyer and willing seller for a mutually**agreed~** .. . upon consideratiop. Consistent with the merger doctrine, all else outside ofthe four corners ofthe deed relating to the purchase price ofthe property was · mergedinto the deed. The Court ofAppeals substantiaily based its deCision on Dreamers LLC v. Don's Lumber& Hardware, Inc., 366 S.W.3d 381 (Ky. 2011). We said in Dreamers: It has long been the law in Kentucky that 'a party .... does not need to post a supersedeas bond to take ari appealfrom a · judgment,' though '[t]he failure to· post a bond
... leaves the party who obtained thejudgment free to execute onit.'· Id: at 384 (quotingElkHqm Coal Corp. v. Cheyenne Resources, Inc., 163 S.W.3d 408, 419-420 (Ky. 2005)). We held that thejudgment-debtor did not forfeit its right tQ ·appeal by paying the money to the plaintiffin lieu ofposting a supersedeas bond

### ~r suffering 

### an**exe~ution** on thejudgmentpending appeal. 15BG contends that its compliance with thejudgment compelling specific performance oftbe real estate option contract should be treated the same. BG's position is ifit successfully established on appeal that AEP was not

. . . entitled to specific performance ofthe Option Agreement, then all that would·be

. 

## . . required is another round ofappraisals to determine the purchase price. That ·interpretation, however, is incorrect. It overlooks the fact that reversing the· order that**~ompelled** specific performance ofthe Option Agreement must also invalidate the deed conveyingtitle because the needto re-determine the purchase price also revives AEP's contractual right to decline the purchase ifit dislikes the final price. Dreamers involved a monetaryjudgment; the res awarded by the judgment was a fungible sum ofmoney. As to that res Dreamers holds that a defendant subject to an adverse moneyjudgment may; instead ofpurchasing a supersedeas bond to cover the payment ofhis debt and avoid attachment or . garnishment ofhis property, as well as the accrual ofexpensive post-judgm.ent

· interest, simply pay thejudgment without forfeiting his right ofappeal. Of

course, by doing so·, the defendant accepts therisk that, upon reversal ofthe judgment, the.plaintiffmay have disbursed the money and be unable to refund it. Either way, the parties are generally indifferent to the specific cash that funds the payment and re-payment; and in most situations, the exchange · ihvolves no tangible_money at all, b_ut simply checks or electronic transfers from one account to another.

16In-contrast, however, here the res subject to the order compelling specific , performance is real estate. The res in dispute is not

# afungible quantity of money; it is uniquely tangible land. Historically,·laws governing the transfer and exchange ofland differ fundamentally from the laws governing the exchange ofcash or its electronic equivalent. 

### See,for example, Baroi v. Platinum Condominium Development, LLC, 874 F. Supp. 2d,980, 984 (Nev. Dist. 2012)**(~Nevada**

# will enforce contractual obligations through the remedy of specific performance where appropriate, partieularly in real estate transactions because real propertyis 'unique,' and damages therefore may be

# an inadequate remedy;"); 

### In reArnold andBakerFarms, 177 B.R. 648, 661 (Bankr. App. 9th Cir. 1994) ("each parcel ofreal property is unique"); 

### Consolidated Rail Corp. v. Michigan, 976 F. Supp. 1085, 1089· (W.D. Mich. 1996) ("[I]nterferenc;e with the enjoyment or possessiOn ofland is considered 'irreparable' since land is viewed
as-a unique commodity for which monetary compensation is an inadequate substitute."). -The merger doctrine is itselfan example ofhow the law applies

. . . . . . . . special precautionsto the conveyance ofland that ·are not**appli~~ble** to the transfer ofmoney. These differences are reason enough to_ distinguish the rule
as stated in 

### Dreamers from the situation before us iri this case. We further reject the notion implied by the Court ofAppeals that requiring the posting ofa supersedeas bo:r:id to stay a court-ordered conveyance ofland would deprive a litigant ofthe right guaranteed by Section 115 ofthe

17Kentucky Constitution to appeal from ari adversejudgment.s The prospective appellant in any case may pursue the constitutionally-mandated right to appeal without posting a supersedeas bond. The bond does not impinge upon the right ofappeal; the bond, when posted by an appellant, stands as a collateral obligation, acknowledging the dignity ofthejudgment in recognition ofthe fact that the appellant is depriving the appellee _of the benefits ofthe judgment pending the finality ofthe appellate process.·

· III. · CONCLUSION For the foregoing reasons, the opinion ofthe Court ofAppeals is**vacated~** BG's counterclaim and amended counterclaim asserted claims that a price**adju~tment** was warranted as a result ofAEP's alleged primary and continuing
.**br~ach** ofthe.Option Agreement, the allegedly faulty appraisal ofCBRE, AEP's alleged failure to maintain the roofofthe building, and AEP;s alleged·breach of the duty ofgood faith and fair dealing. We are satisfied that BG's faih.:tre to preserve its objections··to the Circuit court's final order by superseding it with
an appropriate bondor obtaining a stay ofits enforcement, coupled with the completion ofthe transaction and the applicatiori ofthe merger doctrine, · precludes any further relief sought by BG. Accordingly, we remand this action

s Kentucky Constitution Section 115 provides, in pertinent part:. "In ·all cases,· civil and criminal, there $hall be allowed as a matter ofright at least one appeal to

.another court . . ..." 18to the,Warren Circuit Court with directions to dismiss the counterclaim, and· amended counterclaim
.. ·

· · All sitting. All concur.

. COUNSEL FOR APPELLANT:

Glenn Alan Cohen Seiller Waterman, LLC MeidingerTower, 22nd Floor 462 

### S. Fourth Street Louisville, KY 40202 Paul Joseph Hershberg Gray & White 713 E. Market Street · 2nd Floor**Louisville~** KY40202
. Jason Conti Foley & Lardner, LLP 500 Woodward Avenue, Suite 2700 Detroit, MI 48226 ·

.COUNSEL FOR APPELLEE: David W. Anderson · Michael Scott Vitale
. English,, Lucas,:Priest & Owsley, LLP 1101 College Street P.O. Box 770 Bowling Green, KY 42102:-0770

19