FIFTH THIRD BANK OF NORTHERN KENTUCKY, INC. v. HENRY B. SCHMIDT and GWENDOLYN SCHMIDT
Annotate this Case
Download PDF
RENDERED: July 24, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 96-CA-3209-MR
FIFTH THIRD BANK OF
NORTHERN KENTUCKY, INC.
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE STEVEN R. JAEGER, JUDGE
ACTION NO. 96-CI-000629
v.
HENRY B. SCHMIDT and
GWENDOLYN SCHMIDT
APPELLEES
OPINION
AFFIRMING
* * *
BEFORE:
GUIDUGLI, KNOX, AND MILLER, JUDGES.
KNOX, JUDGE:
Appellant takes this appeal from the ruling of the
Kenton Circuit Court sustaining appellees' CR 60.01 motion to amend
a judgment and order of sale entered in a foreclosure action.
Appellees brought that motion on the grounds of clerical error
approximately three (3) months after judgment had been entered.
This action arose as a foreclosure action.
In April
1996, appellant bank (hereafter "Fifth Third) filed suit to enforce
two notes, both of which had been signed by Mr. and Mrs. Schmidt.
The first note, in the principal amount of $50,000.00, was dated
May 5, 1975, and was secured by real estate owned by the Schmidts
at 1075 Montague Road, in Kenton County.
On July 11, 1990, the
Schmidts executed a credit agreement with the bank for up to
$125,000.00 secured by a second mortgage on the Montague Road
property.
The Schmidts defaulted on both notes, owing $20,400.00
on the first note, and owing $86,589.49 on the second note.
Prior to filing this action, Fifth Third had obtained a
judgment against Mr. Schmidt in another action filed in Kenton
Circuit Court styled Fifth Third Bank of Northern Kentucky, Inc. v.
Henry B. Schmidt, for the enforcement of an unsecured personal loan
to Mr. Schmidt.
Mrs. Schmidt was neither a party to that suit nor
a signatory on that loan.
Fifth Third obtained judgment in that
suit in March 1996 and filed a judgment lien against the Montague
Road property in the amount of $98,130.39.
This foreclosure action was referred by the trial court
to the master commissioner.
that
the
Montague
Road
The master commissioner recommended
property
be
sold,
with
Fifth
Third's
mortgage securing the first note constituting a first lien, its
mortgage securing the second note constituting a second lien, and
its March 1996 judgment lien against Mr. Schmidt constituting a
third lien.
The trial court confirmed the commissioner's report,
and on August 6, 1996, the trial court entered a judgment and order
2
of sale.
With respect to Fifth Third's prior judgment against Mr.
Schmidt, obtained in March 1996, the trial court's judgment and
order of sale provided, at paragraph 3:
Plaintiff, Fifth Third Bank of Northern
Kentucky, Inc. shall also recover judgment
against the defendants Henry B. Schmidt and
Gwendolyn Schmidt, in rem, and shall recover
pursuant to its judgment lien in the total
amount of $98,130.39, plus interest thereon at
the rate of 12% per annum from March 18, 1996
until paid, for all of which execution may
immediately issue. To secure said bank in the
above sums, said bank is adjudged a lien
holder prior and superior to all liens and
encumbrances, except ad valorem taxes for the
year 1996, the costs of this action, and the
prior lien for said bank described in
paragraphs 1 and 2, above. [Emphasis added]
On October 23, 1996, the Schmidts moved the trial court,
pursuant to CR 60.01, to correct its judgment of August 6, 1996,
arguing that paragraph 3 contained a clerical error which should be
corrected to provide that Fifth Third would recover its judgment
for $98,130.39 against Henry B. Schmidt's interest alone in the
Montague Road property.
After all, the March 1996 judgment was
against Mr. Schmidt, not Gwendolyn. On October 28, 1996, the trial
court entered a corrected judgment and order of sale, amending
paragraph 3 of the original judgment to read:
Plaintiff, Fifth Third of Northern Kentucky,
Inc., shall also recover judgment against
defendant Henry B. Schmidt, individually, in
rem, and shall recover pursuant to its
judgment lien in the amount of $98,130.39,
plus interest thereon at the rate of 12% per
annum from March 18, 1996 until paid, for all
of which execution may immediately issue on
one-half (1/2) the amount remaining from the
proceeds of the sale of the property described
in paragraph 1, above, after application of
the proceeds of sale to satisfy the judgments
3
described in paragraphs 1 and 2 above.
To
secure said bank in the above sums, said bank
is adjudged a lien holder prior and superior
to all liens and encumbrances, except ad
valorem taxes for the year 1996, the costs of
this action, and the prior lien for said Bank
described in paragraphs 1 and 2, above, on
Henry B. Schmidt's undivided one-half (1/2)
interest in the subject property.
Although appellees' motion was filed one week before the scheduled
sale of the Montague Road property, the sale proceeded.
The
proceeds from the sale, less the sums due on appellant's first and
second mortgages and the costs of sale, are currently being held in
the escrow account of the Kenton Circuit Clerk.
Appellant
moved
for
reconsideration
of
the
court's
ruling, or, in the alternative, for an evidentiary hearing on the
issue of whether the inclusion of Mrs. Schmidt in paragraph 3 of
the original judgment was a clerical mistake.
That motion was
overruled
argues
by
the
trial
court.
Fifth
Third
that
by
correcting the original judgment and order of sale in such a way as
to insulate Mrs. Schmidt's interest in the Montague Road property
from the bank's judgment lien on that property, the trial court did
not correct a clerical error, but rather corrected an alleged legal
mistake.
Under such circumstances, Fifth Third asserts, CR 60.01
does not provide a mechanism for relief.
CR 60.01 states:
Clerical mistakes in judgments, orders or
other parts of the record and errors therein
arising from oversight or omission may be
corrected by the court at any time of its own
initiative or on the motion of any party and
after such notice, if any, as the court orders
. . . .
4
Both parties have cited Jude v. Morwood Sawmill, Inc.,
Ky. App., 726 S.W.2d 324 (1987).
In Jude, suit was brought against
a corporate purchaser of lumber and its president in his individual
capacity to collect money owed for lumber delivered.
At trial,
Jude, the guarantor, acknowledged that he had signed the personal
guaranty. However, no instructions were given to the jury relating
to Jude's liability, and no motion for directed verdict was offered
by the plaintiff against Jude.
The jury found in favor of the
plaintiff, after which the trial court entered judgment against the
"defendant," referring only to the corporate defendant. Two months
later, the trial court, without notice or motion to do so, entered
a
corrected
judgment
stating
that
its
original
judgment
was
intended against the "defendants," and that the omission of the "s"
was a clerical mistake which the court was correcting pursuant to
CR 60.01.
clerical
This Court disagreed that the omitted "s" was merely a
mistake
and
held
that
since
the
question
of
Jude's
personal liability was not pursued at trial and since no judgment
was taken against Jude, CR 60.01 could not be used to create
liability.
In this case, the issues before the trial court were the
Schmidts' liability on the 1975 promissory note, their liability on
the credit agreement, and Fifth Third's right to foreclose upon the
Montague Road property, which secured those two obligations. While
Fifth Third's foreclosure complaint claimed an interest in the
Montague Road property by virtue of the judgment lien claimed by it
as a result of its March 1996 judgment against Mr. Schmidt, its
5
complaint made no claim that the judgment lien in any way affected
Mrs. Schmidt's interest in the Montague Road property. Rather, the
complaint stated that the plaintiff "claims an interest in the
subject property" by virtue of its judgment lien issued in the
action against Mr. Schmidt.
No proof was taken nor any issue made that Mrs. Schmidt's
interest in the Montague Road property was subject to Fifth Third's
judgment lien.
In Jude, the court's corrected order created
liability where liability had not been determined. Here, the trial
court's corrected judgment deleted all reference to a liability
where the record demonstrates that liability could not exist.
Under the circumstances of this case, we do not believe
the trial court abused its discretion when it determined that
inclusion of Gwendolyn Schmidt in paragraph 3 of the original
judgment constituted a "clerical error" which could be addressed by
CR 60.01.
Mrs. Schmidt had no liability under the March 1996
judgment and thus, liability was nonexistent for purposes of
paragraph 3.
Further, there was no proof taken by the master
commissioner concerning Mrs. Schmidt's liability. Noting that Rule
60(a) of the Federal Rules of Civil Procedure is identical to
Kentucky's CR 60.01, and that it very likely serves a similar
purpose, this Court in Jude stated: "Rule 60(a) is available to
show that a thing was done at one time which ought to be shown at
that time.
It is an entry now [nunc pro tunc] for something
previously done so that the record can accurately reflect the
truth.
Rule 60(a) is primarily for mistakes which do not attack
6
the party's fundamental right to a judgment at the time it was
entered."
Jude, 726 S.W.2d at 326 (citations omitted).
The truth of the matter here appears to be that, absent
language at paragraph 3 of the original order, no liability for the
judgment obtained in March 1996 by Fifth Third against Mr. Schmidt
could accrue to Mrs. Schmidt. Where no proof had been demonstrated
of Mrs. Schmidt's liability on that claim, and where indeed no
claim appears to have been articulated against her for liability,
we do not believe we can conclude the trial judge abused his
discretion by correcting his judgment to delete any reference of
liability for her on that claim.
From that, we do not believe the trial judge abused his
discretion in refusing to hold an evidentiary hearing on whether
his corrected order addressed a clerical error.
Accordingly, we affirm the judgment of the Kenton Circuit
Court.
ALL CONCUR.
7
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
David C. Nalley
Jonathan Mason
Cincinnati, Ohio
Frank L. Newbauer
Lanny R. Holbrook
Cincinnati, Ohio
8
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
