RENDERED: DECEMBER 15, 2023; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth o f Kentucky Court of Appeals

NO. 20 2 2

- CA

- 1366

- M R

STINLER, INC. APPELLANT

APPEAL FROM BOON E CIRCUIT COURT v. HONORABLE RICHARD A. BRUEGGEMANN , JUDGE ACTION NO

. 20

- CI

- 00515

MALL ROAD INVESTORS, LTD. CO. APPELLEE

OPINION AFFIRMING
**   **  **
BEFORE: CETRULO, KAREM , AND M C NEILL, JUDGES

. KAREM , JUDGE : Stinler , Inc. ( “ Stinler ” ) appeals from orders of the Boone
Circuit Court g r a n t i n g sum m ary judgment and awarding damages and attorney ’ s
fees to Ma ll Road Investors, Ltd. Co. ( “ Mall Road ” ). Stinler leased property from
Mall Road to operate a sa ndwich shop

. The trial court held that Stinler violated the
lease when it rem oved the HVAC unit a nd several fixtures upo n vacating the- 2

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premises

. On appeal , S tinler argues (1) that summary ju dgment was improper
because the lease was ambiguous , and (2) that the a moun t of at to rne y ’ s fees was
excessive. Upon careful review, we affirm.

M all Road own s a shopping center containing s everal commercial

tenants. In 2009, M all Road le ased sp ace in the ce nter to Harper on a Roll , LLC ( “ Harper ” ) , a Jimmy J ohn ’ s Gourmet Sandwiches fra nchisee , for a five

- year term. On August 11 , 2014, Harper on a Roll and M al l Road entered into a f ir st

a mendment to the l ease a g ree men t, which extended the tenancy throu gh Sept ember 30, 2019. In 2017, H arper , with M all Road ’ s consent, assigned its lea s e to Stinler, wh ich continued operating the Jimmy John ’ s franchise

. St inl e r has been a
Jimm y John ’ s franchisee for over twenty

- five yea rs and owns a pproximately
thirteen such r estaurant s in Illinois, Indiana, Ohio , and Kentucky

. Mall Road and
Stinler agr e e that the terms of the 2009 lease and the f irst a mendment were incorpo ra t ed into Stinler ’ s assign ment and govern the ir busi ness rela ti onship.

The lease contained the following provisions relating to the HVAC
and fixtures in the shop :

Paragraph 2 pro v ide s in r elevant part : At or prior to e xpiration of the Lease Term, Ten a nt will return possession of the Shop to Landl ord in broom cl ean condition with all of Tenant ’ s furnitur e, fixtures, signage (with façade repaired) and inventory removed.- 3

- Paragraph 7 provide s in part: Landlord must assign any and all warranties associa t ed with the equipment at the shop to the tenant, includ ing he ating, ventilating and ai r condition ing system which is to be a new non reconditioned unit

. Tenant will maintain the Shop i n good condition and repair (including a ny necessary replacements) , in c luding, interior and exterior doors, plate glass , windo ws, st ore front, all p lumbing a nd sewage f acilities serving only the Shop , all fixtures, heating, ventilating and air conditionin g and electrical systems serving onl y the Shop , walls, floors and ceili n gs, meters serving the Shop a nd all ins tallation s made by T en ant, including repairs ca used by ill egal acts.

. . . Tenant will enter into a maintenance cont ract for the heating, ventil a ting and air conditioning system providi ng for quarterly service inspe c tions and necessary repairs

. Additionally, Exhibit B o f the lease include s the following provisions relating to the HVAC and washrooms under a section entitled “ DESCRIPTION OF
LANDLORD ’ S WORK AND TENANT ’ S WORK ” :

6. HEA T ING, VENTILATING AND COOLING Th e air conditioning will be ins talled on the basis of a minim um of one ton of air condition ing for every t wo hundred (200) square feet of interior Premises or as deemed sufficient HVAC.
Distribution consisting of double wall , insulated spiral duct will be p rovided. Exhaust and ventila tion will be provided in accor da nce with local building co des. Co mbination heating an d co oling unit will be installed on the ro o f.
7. WASH ROOMS L a ndlord will provide two ADA washrooms per curr e nt code, size and location to b e designated by tenant. Washr oom walls will be framed and d ry walled to the- 4

- roof deck, taped sanded and ready for pa int. All fixtures, doors, floor and wall f

inishes will be provided by landlord per Tenant ’ s specifications a n d design. In April 2019, St i nler paid for and installed a n ew H VAC system in the shop , at a cost of $10,900.

As we have noted, under the terms of the first amendment, the lease

agreeme nt was set to terminate on September 30, 2019 . Stinler had the right to

renew th e lease by givin g written notice by May 3 , 2019

. Stinler did n ot , h owever,

re new the l ease nor did it vacate the premises. M all Road negotiated an agreem ent
wi th Stinler and the new i nc oming tenant to give Stinler additional time to move
out. When St i nler failed to do s o , M all Road filed a forcible detainer complai nt in
Boone D is trict Cou rt. Stinler and Mall Road reached a settlement of the case and on February 3, 2020, t he district court entered an agreed order w hich provided in
part that
Defend a nt shall vacate the

. . . P roperty . . . by 5 pm on

Sunday , February 23 , 2020. De fe nda nt shall pro vide Plaintiff a walk

- through of the Property at that time where all keys to the Prope rt y shall be returned to the Plaintiff. Defendant shall leave the P ro p erty in the condition a s outlined in the lease between the parties.
Def endant has a gre ed that all pers onal property, including coolers, oven s, racks, shelves, refrigerators, iceboxes, et c., will be removed from the premises, and Defendant will remove all signa g e for the Jim m y J ohn ’ s brand , and will leave the property in broom swept con di tio n on the day the y move out.- 5

- If Defendant fail s to vacate the Property as outlined above, Defendan t sh all be liable to Plaintiff for reasonable damages arising therefro m
. After the e ntry o f the agreed order, Stinler informed Ma ll Road that i t

wante d to r emove the HV AC u nit from the property. Mall Roa d co mmunicated
with Stinler ’ s counsel that the HVA C unit belonged to Mall Road and was not to
be removed.
After Stinl e r vacated the buildi n g, Mall Road discover ed that Stinler
had removed the HV AC uni t, as well as two bathroom doo rs , two p aper towel holders, two toilet paper holders, and the bathroom sconces. Sti nl er also refused to pay outstanding rent, water , or common area maintenance ( “ C AM ” ) charges.

Mall Road filed suit again st Stinler , alle g i n g breach of contract and

con vers ion of its property and seeking compensatory damages, punitive damages,
and attorn ey ’ s fees. Following a hearing, t he trial cou rt held tha t Stinler ’ s removal
of the HVAC and fixtures constituted not only breach of cont r ac t but conversion
and granted summary judgment to Mall Road

. A fter a hea ring on damages , the
trial court entered a final judgment awardin g Mall Road $21,793.70 i n damages, $ 433 .27 in costs, an d $ 35,999.95 in attorney ’ s fees, plus post

- jud gm ent inte r est.
T his appeal by Stinler followed.- 6

- STANDARD OF REVIEW
i. S ummary j udgm ent

In reviewing a grant of summary judgment , our inquiry focuse s on “whether the trial court correctly f ound tha t th ere we re no genuine issues as to any
material fact and that the m ov ing par ty was entitled to judgment as a matter of
law.” Scifres v. Kraft , 916 S.W.2d 779, 781 (Ky. App. 1996); Kentucky Rules of
Civil Pr ocedure (“CR”) 56.03. The trial court is requi red to vie w the record “in a light most favorable to the party opposi ng the mo ti on for summary judgment and
all doubts are to be resolved in his favor.” Steelvest, Inc. v. Scansteel Service Center, Inc. , 80 7 S.W.2d 476, 480 (Ky. 1991). “ [ A] part y opposing a prope r ly

s uppo rted summary judgment motion cannot defeat it without p resenti ng at least some affirmative evidence showing that there is a genuine issue of material fact for
trial.” Id. at 482. “Not every issue of fact or conf licting inference presents a genui n e is sue of material fact that requires denial of a summary ju dg ment mo ti on.”
Grass v. Akins , 368 S.W.3d 150, 153 (Ky. App. 2012). “An appellate court need
not defer to the trial c ou rt ’ s decision on summary judgment and w ill review the
issu e de nov o becau s e on ly l egal questions and no factual findings are involved.”
H allahan v . The Courier

- Journal , 138 S.W.3d 699, 705 (Ky. App. 2004).
ii. I nte rpretation of a contract

T his case involves the interpretation of the le as e and the terms of the agreed ord er mem o riali zing the settlement in the f orcib le detainer proceedings

. “A- 7

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lease is a contract for the posse ss ion and profits of lands and tenements on the one side, and the recompense of rent or property on the other [.] ” Neighborhood Investments, LLC v. K

entuck y Farm Bureau Mut. Ins. Co. , 430 S.W.3d 248, 251 (Ky. App. 201 4) (citation omitted ). “ [ S ] ettlement agreements are a type of contract and therefore are governed by contract law [.] ” Frear v. P.T.A. Industries,
Inc. , 103 S.W.3d 99, 105 (Ky. 2003)

.

“ Th e int erpreta ti on of a contract is a question of law. In the absenc e
of ambiguity a written instr um ent will be enforced strictly according to its terms

. Courts will interpret the contract terms by a ssignin g language to its ordinary meaning without resort to ex trinsic e vidence. ” Stowe v. Realco Limited Liability Company , 5 51 S.W.3d 462, 465

- 66 (Ky. App. 2018) ( internal quotation marks and
citations omitted). On the other hand, “ [w] here a contract is ambiguous or silent on a vital matter, a court may consider p aro l and extrins ic evidence involving the circumstances surrounding exe cu tion of the contract, the subject matter of the contract, the objects to be accomplished, and the cond uct of the parties. ” Cantrell Supply, Inc. v. Liberty Mut. Ins. Co. , 94 S.W.3d 3 81, 385 ( Ky. App . 2002) (inte rnal quotation marks omitted)

. I f a contract is determined to be ambiguous, t he

a mbiguity is construed against the drafter

. Phoenix American Administrators, LLC
v. Lee , 670 S.W.3d 832, 840 (Ky. 2023) (citation om itted). Bec a use the construction and interpretati on of a lea se are qu estions of law , our standard of
review is de nov o. Commun i ty Tr ust Bancorp, Inc. v. Mussetter , 242 S.W.3d 690,- 8

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692 (Ky. App. 2007) (citation omitted). “ However, once a court determines that a

contr a ct is ambig uous, areas of dispute conc erni ng the extrinsic evidence are
factual issues and construction of t he contract become subject to resolution by the
fact

- finder. ” Cantrell , 94 S.W.3 d at 385

. ANALYSIS
i. T he lease and settlement agreement were no t ambiguous

Stinler argues that the trial court erre d in ruling that the lease and agreed order w ere un a mb iguous a nd i n construing them against Stinler

. Stinl er

cont e nds that the HVAC was an especiall y powerful unit required by Jimmy
John ’ s and the bath room fixtures were trade fixtures also mandated by Jim my
John ’ s . B eca use the lease is silent about these ty pes of i te m s , Stinler argues that it
is ambiguous and theref

o re the trial court erred in ruling as a matter of law that the
H VAC and fixtures belong to Mall Road. “A contract is ambiguous if a reasonab le person woul d find it susceptible to different o r inconsiste n t i nterpretations.” Kentucky Shakespeare Festival , Inc. v. Dunaway , 490 S.W.3d 691, 694

- 95 (Ky. 2016) (citation omitted).
ii. T he HVAC

The lease specifies under Section 6 of Exhibit B , as set forth ab ove,
that the landlord i s required to install the HV AC

. P aragraph 7 requires the landlord

t o assign the warranty on the unit, which must be new, to the tenant. The tenant is required to ma intain the HVAC in good condition and repair, includin g nec essary- 9

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replacements. When Stinl er assumed the lease from H ar pe r , a unit was in place which presumably met J immy John ’ s standards as Stinler continued to do business without complaint for two years before replacing it.

There is no ambiguity in the lease regar ding the HVAC

. The lease does not convey ownershi p of th e HVAC to the tenant, nor does it permit the
tenant to remove the HV AC upon expiration of the lease

. As the trial court aptly
observ ed in construing Paragraph 7 of the lease,

According to [Stinler ’ s ] argum ent, the fact that it was required to main ta in

– e ven replace

– the HV AC unit constitutes ownership. If that wer e so, then [Stinler] would also own the plate glass, windows, s tore f ront, all plumbing and se wage faci litie s, and electric al systems th at serv ed only the shop. Clearly, that is n o t th e cas e. The lease im poses an obligation on tenant to maintain these fi xtures because they bel ong to the landlord. It does not convey own er ship of these fixtures to tenant.
ii. T he fixtures

Stinler argues that the paper t owel and toil et paper ho ld ers, ba thr oom
doors , and sconces it removed were trade fixtures mandated by J immy John ’ s and
the lease was unclear regarding the ownership of the se fixtures. As evidence for
this alleged ambiguity, S tinler points to the reference of fixtures in Paragraph 2,
whi ch re quires the t enant to remove fixtures upon the expiration of the lease but does not explain which fixtures are included in this categor y
.

“ Trade fixture ” is defined as “ property which a tenant ha s placed on
rented real es tate to advance the busines s fo r which it is leased [. ] ” Scanlon v.- 10

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Scanlon , 545 S.W.3d 311, 316 (Ky. App. 2018) (cita tion omitt ed)

. “ While an ordinary fixture is co nsider ed a part of the real property to which it is att ached,

tr ade fixtures are considere d personal property and may b e removed when vacating real property. ” Id . To determine whether a n item is a trade fix ture, we i nquire

“ whether the lessee inst alled t he item with the intent that it be u sed to aid him in

c arrying o n his trade or business on the premises.” Id . ( internal quotat io n marks
omitted ).
Under the terms of Ex hibit B of the lease, the landlord, Mall Road , was required to provide two washrooms as well as fixtures, doors, floor, and wall
finishes per the tenan t ’ s specifi cations and design

. Stinl er does not dispute that
M al l Road installed the Jimmy John ’ s branded fixtures in accordance with its
dut ies u nder E xhibit B of the lease. Therefo re, beca use the fixture s were not installed by Stinler , they do not meet the defini tion of a trade fixture and they are not Stinler ’ s p er son al pr operty.

Stinler points to the affidavit o f its principal, Kenneth Butler, in which
he claims that each of the dispute d items was mand ated and sele cted by Jimmy
John ’ s in accordance w ith its par ticular branding o r specifications and i n s talled on

t he pre mises in connection with and to a dvance the Jimmy Jo hn ’ s business operated there initially by Harper and later by Stinler

. Stinler cont e nds that Harper

“ knew ” at the time it entered the lease that Jimmy J ohn ’ s woul d dictate and ultimately require re mo val of these branded items. If the removal of the branded- 11

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items was required b y Jimmy John ’ s , Stinler was free to do so but would also have to replace the items or reimburse Mall Road for t hese fixtures

. iii. R ent, water, and CAM charges

Stinler fur th er argues that it underst ood it would not be responsible for charges for rent , CAM, and water cha rges for the period duri ng whi ch it occupied the shop after the termination of the lease. I t c laim s the parties agreed to this

arrang ement in their discussi on s during the resolution of the forcible detainer

procee dings. A s evidence for this, Stinler r e lies on the statement in B utler ’ s affidavit that pa

rties “reached an oral agreement on February 3 , 2020, that Sti nler
would owe no rent or other monetary amoun ts for the mon th of February 2020, as part of Stinler ’s agreement to cease further legal challenge to its eviction. ” T his

purpor ted agreement was not memorialized in the settlement ag reement

. Butler ’s
claim that there was such a n oral agreement , without an y other evidence, is simply
not sufficient to read such a n alteration o f the lease into the settlement agreement

.

“ A par ty ’ s s ubjective bel iefs about the nature of the evidence is not the sor t of affirmative proof required to avoid summary judgment. ” H au gh v. City of
Louisville , 242 S.W.3d 683, 686 (Ky. App. 2007)

. i v . T he attorney ’ s fees

The tri al court awarded Mall Road $9 , 60 9. 70 for liquidated damages, consisting of the rent, CAM, an d oth er c h arges under the lease ; $12,184 for the property found to be converted ; and $35,999.9 5 in atto rney ’ s fees. T he a ttorney ’s- 12

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fees were awarded in accordance w ith the express terms of t he le as e, which states: “The prevailing part y in any litigation or ot her proceedings to enforce such part y ’s
ri ghts under the Lease w ill be entitled in such litigation or proceeding to a n award of the costs of such litigation or proceeding, including atto rney ’ s fees and

expenses. ”
S tinler argues that the amount of att orney ’ s fees , w h i c h i s m o r e t h a n

o n e
- a n d

- a
- h a l f times the total amo un t of compensatory damages, is not reasonable
in the context of a commercial lease dispute. It a rgues that it did not dama ge th e
pre mises or leav e them in disrepair ; it removed the HVAC p rofes sionally and
wi thout damage; and it left the space clean and s we pt. It further argues that a portion of the damage s sought, but not ultimately recovered by Mal l Road,
included costs to rep ai r and replace alle ged damage to the p remises. Stinler argue s
tha t these specula tive d amages improperly inflated the amount of at torney ’ s fees.

Mall Road argues that Stinler has provided no authority showing that
the ratio o f fees to damages was un reaso nable or that recovering less than the full
amount of d amages sou ght warrants a reduction in attorney ’ s fees.

Whe n, as in this c ase, recovery of attorney ’s fees is permitted by

contract , the amount of the award i s reviewed for an abuse of discretion. Roy al Consumer Products, LLC v. Saia Motor Freight Line, Inc. , 520 S .W.3d 753, 757 (Ky. App. 2016) (citation omitte d). “ What cons ti tutes a reasonable [at torney ’s] fee
is w ithin the discretio n of the court.

. . . An abu se of dis cretion occurs if the- 13

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co urt ’ s ruling is arbi trary, unreasonable , unfair, or unsupporte d by sou nd legal principles.” Dawahare v. C abinet for Health and Fami ly Services , 6 62 S. W.3d 745, 747 (Ky. App. 2023) ( i nterna l quotat io n marks and citations omitted).

T he trial court acknowledg e d that t he amount of d amages is a fac tor in
de t ermining the amount o f attorney ’ s fees , but a lso noted that

Plaintiffs had to expend attorney fees wholly s eparate from th e damages sought in this case. Agreements were reached to extend the date for Defen da nt to va cate. Then, when Defendant failed to do s o, Plaintiff had t o file a forcible detai ner action a nd litigate in Dis trict Court to retake the premis es . Consequently , the amount of attorney fees is not unreasonable

. The trial court appropriately an d carefully consider ed the overall history of the case , including the increase in the cost of the proceedings attribut able
to S t inler ’ s failure to timel y vacate the premises , in determining the amount of
attorney ’ s fees. The trial court rejected Stinle r ’ s argument that the f ees were inflated because two attorney s worked on the case for Mall Ro ad by pointing out that because the associate attorney billed at a lower rate, employing t wo attorneys ultimately resulted in lowe r fees. The tr ial court also poi nted out that Stinler h ad been unable to identify a ny du plication of work or charges.

Sti nler further contends that the attorney ’ s fees were improperly

c al culated on da mages that were speculative and legally unrecoverable. Mall Road
made claims for th e cost of re pairing Stin ler ’ s alleged damage to the shop and replacing the items removed by Sti nler

. S tin l er points to evidence presented at the- 14

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dama ges hea ri ng that Mall Road had not actually repaired much of the damage or replaced many of the items . Th is was due in part to th e fact that the new tenant , Eye Mart , was undert aking material renovatio ns to convert the premises to an eye
doct or ’ s of

fice. Mall Ro ad argued that the risk remained that Eye Mart would seek
to recover the cost of the repair s from Ma ll Road or would remove the fixtures i t
had installed whe n its tenancy ended

. In other words, Mall Road still had potential liability. In its judgment, th e trial court rejected this argument , stating :

Defendant knowingly removed fixtures from the prem ise s he leased belonging t o the Plaintiff. Inasmuch as the Court has found that this constituted conversion, Defendant must pay the value of the items convert ed

. Based upon testimony at the hearing, it appears that Plaintiff did not suffer financial inju ry from the removal of tho se fixtures because the subsequent tenant provided other materials duri ng the build

- out. Conse quently, the damages proposed by Plain ti ff for new replacement and installation costs would not be appropriate. Rather, the Court accepts Defendant ’ s evidence a s to the total value of those items being $12,184 ($10,900 for the HVAC unit, $800 for two bathroom doors, $102 for two toilet paper ho lders, a nd $382 for two paper towel holders). Further, because the evidence shows Plaintiff ’ s new tenant renovated the s pace, and had placed a new sign in the same place as that removed by De fendant, the Court finds no da mages for repair would be approp ri ate. Although the trial court did not grant damages for repair a nd replacement costs, it did no t make a finding that M all Road ’ s claims for these
it e m s were frivolous or imprope r . There is no indication that Mall Road ’ s

at torneys inflated their fees by knowingly pursuing meritless claims. It is not the- 15

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place of this Court to second

- guess the profe ssional judgment of cou nsel in deciding which claims to pursue in the course of litigation

.

The trial court ’ s award of attor ney ’ s fees was not an abuse of
discretion. It was firmly founded on the evidence presented and it was neither
arbi trary, unreas onable , unfair, n or unsu pporte d by sound legal principles

. CONCLUSION
F or the foregoing reas ons, the Boone Circuit Court ’ s order of October 20, 2022, gran ti ng summary judgment to Mall R oad and it s order of June 3, 2022 , awarding damages , attorney ’ s fees, costs, and p ost

- judgment interest are affirmed.

ALL CON C UR.

BRIE F S FOR APPE LLANT :
Daniel A . Hunt Covington , Kentuck y BRIEF FOR APPELLEE :
Jason P. Re nzelma nn Louisville , Kentu cky
Michael E. Nitardy Florence, Kentucky
Nathan iel L. Truitt Cincinnat i, Oh io