WORLD OMNI FINANCIAL CORPORATION V. TIMOTHY S. TAPSCOTT
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RENDERED: May 1, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 96-CA-002864-MR
WORLD OMNI FINANCIAL CORPORATION
V.
APPELLANT
APPEAL FROM HART CIRCUIT COURT
HONORABLE LARRY RAIKES, JUDGE
CIVIL ACTION NO. 95-CI-000082
TIMOTHY S. TAPSCOTT
APPELLEE
OPINION
AFFIRMING
** ** ** ** ** ** **
BEFORE:
EMBERTON, HUDDLESTON and JOHNSON, Judges.
HUDDLESTON, JUDGE.
World Omni Financial Corporation appeals from
an order directing it to release its lien on a 1994 Mazda pickup
truck owned by Timothy S. Tapscott.
In April 1995, Omni sued
Tapscott to collect on a delinquent account which resulted from
Tapscott's purchase of the pickup truck and to enforce its lien
against the vehicle.
After answering Omni's complaint, Tapscott
entered the United States Marine Corps.
Thereafter, his mother
represented his interests in this action.
On August 12, 1996, Omni moved the circuit court to
dismiss its complaint. On August 20, 1996, the court dismissed the
complaint, but did so "with prejudice."
Within ten days following
entry of the dismissal order, Tapscott moved the court, presumably
pursuant to Ky. R. Civ. Proc. (CR) 59.05, to order Omni to release
the lien covering his vehicle.
September
17,
1996,
hearing
When Omni failed to appear for the
scheduled
to
consider
Tapscott's
motion,1 the court ordered Omni to release "all liens and blemishes" on the automobile.
A motion to reconsider filed by Omni on
September 30, 1996, was denied by the court. This appeal followed.
Ky. R. Civ. Proc. (CR) 41.01(2) addresses the voluntary
dismissal of actions.
It provides that a dismissal is without
prejudice unless otherwise specified.
The Supreme Court has made
it clear that the voluntary dismissal rule, CR 41.01(2), "does not
contemplate that the trial judge may elect to transform a voluntary
dismissal into an involuntary dismissal on the merits, i.e., with
prejudice."
Louisville Label, Inc. v. Hildesheim, Ky., 843 S.W.2d
321, 325 (1992).
When confronted with a plaintiff's voluntary
motion to dismiss, a trial judge has the option to deny the motion
or to impose conditions such as the payment of costs and attorney's
fees if the action is refiled, but the court has no authority to
select dismissal with prejudice as an alternative mode of adjudication.
Id.
As the Supreme Court has elsewhere noted, "one who
wishes to preserve the viability of a dismissed claim should see
that the proper notation is affixed by the trial court or seek
appellate relief."
Commonwealth v. Hicks, Ky., 869 S.W.2d 35, 38
1
Omni later filed the affidavit of its attorney, Lisa A.
Herndon, who stated that she had not appeared because she received
information from the Hart Circuit Court Clerk's office that a
hearing to consider Tapscott's motion would not be held.
2
(1994).
Omni did not seek amendment of the order dismissing this
action with prejudice, nor has it appealed the order.
The only
issue it raises on appeal is whether the trial court exceeded its
authority
when
it
implicitly
held
that
the
dismissal
"with
prejudice" operated as an adjudication on the merits thus entitling
Tapscott to an order directing Omni to release its lien.
A "judgment on the merits" is "one which determines the
rights and liabilities of the parties based on the ultimate fact as
disclosed by the pleadings or issues presented for trial." Black's
Law
Dictionary
844
(6th
ed.
1990).
When this action was dismissed with prejudice, Omni lost
its right to collect against Tapscott and its right to enforce its
lien.
The dismissal with prejudice left Omni without recourse;
"subsequent litigation was thereby barred." Commonwealth v. Hicks,
supra at 38.
Thus, the circuit court properly amended the order of
dismissal to require Omni to release its lien.
The
order
from
which
this
appeal
is
prosecuted
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Lisa A. Herndon
MAPOTHER & MAPOTHER
Louisville, Kentucky
Timothy S. Tapscott, Pro se
Horse Cave, Kentucky
3
is
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