KEN WILLIAMSON v. STEVE A. WHITWORTH
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RENDERED: October 23, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
No.
1997-CA-000895-MR
KEN WILLIAMSON
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE KEN G. COREY, JUDGE
ACTION NO. 96-CI-001718
v.
STEVE A. WHITWORTH
APPELLEE
OPINION
AFFIRMING
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BEFORE:
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DYCHE, EMBERTON and JOHNSON, Judges.
JOHNSON, JUDGE:
Ken Williamson (Williamson) has appealed from
the final judgment of the Jefferson Circuit Court entered on
January 24, 1997, which summarily dismissed Williamson's claims
against the appellee, Steve Whitworth (Whitworth).
Finding no
error, we affirm.
The facts necessary for an understanding of the legal
issues in this appeal are somewhat convoluted.
In 1992,
Whitworth sold a 1958 Volkswagen automobile to Williamson's
brother, Charles B. Williamson (Charles), for $500.
At that
time, Williamson was in the military and Charles purchased the
vehicle on Williamson's behalf.
Williamson paid Charles a
deposit of $100 for the car, but eventually was not interested in
buying the car.
On March 16, 1994, Whitworth agreed to buy the
vehicle back from Charles.
Prior to the resale, Whitworth
claimed that he inspected the vehicle and it was in a condition
similar to the condition when he originally sold it to Charles.
Whitworth claimed, however, that when he took possession of the
car two months later several items were missing.
On June 13, 1994, Whitworth, in a sworn criminal
complaint, averred that sometime after his purchase of the
vehicle, Williamson took items from the car including a hood
ornament, the right fender, and keys.
He also stated that he had
performed work for Williamson for which Williamson owed him $75.
He alleged that Williamson refused to give him the parts to the
car or pay him the amount owed for services rendered because
Williamson's brother, Charles, refused to return the $100
Williamson had paid Charles for the car.
On July 29, 1994,
mediation having been unsuccessful, a warrant was issued for
Williamson's arrest.
Williamson was charged with the offense of
theft by unlawful taking under $300 and was required to spend a
night in the Jefferson County Jail.
criminal prosecution was dismissed.
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On March 21, 1995, the
On that same day, Whitworth filed a complaint in the
Jefferson District Court, Small Claims Division, in which he
alleged that Williamson owed him the sum of $1,281.30, which
included $407.15 for parts taken from the vehicle and $75 for
services performed.
The remaining amount represented wages
Whitworth allegedly lost while pursuing his claims against
Williamson.
Williamson, who was served on March 29, did not file
a pleading in that proceeding.
1995.
The matter was tried on April 24,
Both Williamson and Whitworth were present.
Whitworth had
subpoenaed Charles to testify, however, Charles did not appear.
The trial court allowed Whitworth to introduce a written, unsworn
statement, purportedly prepared and executed by Charles, which
supported Whitworth's claims against Williamson.1
1
The statement reads in its entirety as follows:
I[,] Charles B. Williamson[,] bought a 1958
Volkswagon [sic] from Steve Whitworth for my
brother Ken Williamson who said he wanted it.
Ken gave me a small deposit on the car and
never paid me the rest of the money on the
car. Both Steve and I went to the trouble of
moving the car and getting the paperwork ready
for Ken. Ken later decided he didn't want the
car. For the trouble I have gone through to
get and move the car[,] I am keeping the
deposit. Ken has forfeited this since he
doesn't want it anymore.
On 3/16/94[,] Steve Whitworth gave me my
money back on the car and took it back in his
possession on 5-18-94. My brother is
apparently upset about his forfeited deposit
and took several items from the car (hood
emblem, the right rear fender, and the keys).
I have in fact seen some of the missing parts
in Ken's [p]ossession.
(continued...)
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Whitworth was awarded a judgment against Williamson in
the amount of $482.15, which judgment was affirmed by the
Jefferson Circuit Court in an opinion and order entered on
January 30, 1996.
On March 20, 1996, Williamson filed suit in
the Jefferson Circuit Court alleging that Whitworth "abused the
criminal justice system by using it for the ulterior motive or
purpose of extorting personal property from [him]," and that
Whitworth instituted and pursued the criminal prosecution against
him without probable cause and with malice.
The complaint also
contained a claim of wrongful use of civil proceedings predicated
on Whitworth's action in small claims court.
Whitworth, pro se, answered the complaint, filed a
counterclaim, and filed a motion for summary judgment.
On July
10, 1996, the trial court dismissed that portion of the complaint
concerning the wrongful use of civil proceedings, reasoning that
Williamson's "proper avenue of redress" would have been an
appeal.
The order further provided that "[t]he remaining issues
contained within the complaint and the counter claim remain
viable and subject to further action[.]"
The matter was set for
trial in January 1997.
Prior to trial, and in response to Williamson’s motion
in limine to exclude any reference to the small claims action
1
(...continued)
Both Steve and I have asked for the parts
back, but Ken has refused and ignored us. I
am just stating this for the fact that my
brother[,] Ken Williamson[,] has taken these
items from Steve.
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before the jury, Whitworth raised the issue of res judicata and
again moved to dismiss the action.
On January 24, 1997, the
trial court summarily dismissed the remainder of the complaint as
follows:
The Court, in attempting to straighten
out the various twists and turns of this
action must agree that [Hays], et al v.
Sturgill, et al, 193 SW2d 648 [1946,]
controls. In that action, Kentucky's
highest Court at that time found that
the plea of res judicata applies not
only to points upon which the Court was
required by the parties to form an
opinion and pronounce Judgment, but to
every point which properly belonged to
subject of litigation in which parties,
exercising reasonable diligence might
have brought forward at the time. Here,
the criminal action against the
plaintiff herein was dismissed on the
same day that the defendant herein filed
a Small Claims action which resulted in
the plaintiff in this action being found
liable to the defendant in this action.
The plaintiff in this action, as the
defendant in the Small Claims action,
could have and should have at that
point, counter-claimed in keeping with
[Hays], supra, concerning his wrongful
prosecution issues. This Court is of
the opinion that CR[2] 13.001 [sic]
rested upon the same foundation as have
all disputes between these parties.
On April 3, 1997, the trial court denied Williamson's motion to
alter, amend or vacate the order of dismissal, and made the order
final and appealable.
In this appeal, Williamson raises three issues in
support of his argument that the trial court erred in summarily
2
Kentucky Rules of Civil Procedure.
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dismissing those counts of his complaint against Whitworth which
had alleged abuse of process and malicious prosecution in
instituting and prosecuting the criminal action against him.
First, Williamson argues that the trial court erred in its
application of CR 13.01.
Specifically, Williamson contends that
his claims for abuse of process and malicious prosecution were
not compulsory counterclaims as contemplated by the civil rule.
We disagree.
CR 13.01 is designed to "eliminate circuity of action
and multiple litigation."
Philipps, 6 Kentucky Practice, CR
13.01, Comment 1, (5th Ed. 1995).
CR 13.01 provides:
A pleading shall state as a
counterclaim any claim which at the time
of serving the pleading the pleader has
against any opposing party, if it arises
out of the transaction or occurrence
that is the subject matter of the
opposing party's claim and does not
require for its adjudication the
presence of third parties of whom the
court cannot acquire jurisdiction. The
pleader need not state the claim if (a)
at the time the action was commenced the
claim was the subject of another pending
action, or (b) the opposing party
brought suit upon his claim by
attachment or other process by which the
court did not acquire jurisdiction to
render a personal judgment on that
claim, and the pleader is not stating
any counterclaim under Rule 13. Any
counterclaim against the Commonwealth,
or any agency or political subdivision
thereof, may be stated at the pleader's
option.
There is no argument made that any of the exceptions to
the rule apply.
Instead, the issue is whether Williamson's claim
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arose "out of the transaction or occurrence that is the subject
matter" of Whitworth's small claims action.
Id.
In interpreting
CR 13.07, the rule which pertains to cross-claims against coparties, this Court held that the "words within the rule
'transaction or occurrence' are to be given a broad and liberal
interpretation."
Bickel-Gibson Associates Architects, Inc. v.
Insurance Company of North America, Ky. App., 774 S.W.2d 469, 470
(1989).
The purpose for CR 13.07 is the same as that for CR
13.01, that is to "avoid multiplicity of suits."
Id. at 471.
See also England v. Coffey, Ky., 350 S.W.2d 163, 164 (1961) (CR
13.01 corrects a previous procedural defect and promotes the
"general policy of the law that a multiplicity of suits should be
avoided").
Further, two of the tests to be applied in determining
whether a counterclaim is compulsory is (1) whether "the same
evidence support[s] or refute[s] plaintiff's claim as well as
defendant's counterclaim" and (2) whether there is "any logical
relation between the claim and the counterclaim."
C. Wright, A.
Miller, M. Kane, Federal Practice and Procedure: Civil 2d § 1410,
(1990).3
With these tests in mind, and considering the purpose
of the rule, it is our opinion that the trial court did not err
in its application of CR 13.01.
See also Cianciolo v. Lauer, Ky.
App., 819 S.W.2d 726 (1991), and Egbert v. Curtis, Ky. App., 695
S.W.2d 123 (1985).
3
CR 13.01 is nearly identical to its counterpart, Federal Rules
of Civil Procedure 13(a).
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Although Williamson attempts to convince us that the
"transactions" or "occurrences" which underpin Whitworth's small
claims action and his own lawsuit in circuit court for abuse of
process and malicious prosecution "are obviously entirely
separate and distinct" and "in no way compulsory", there is no
question that Williamson's circuit court action against Whitworth
was based on Williamson's arrest on the charge of theft by
unlawful taking of the disputed vehicle parts and on a claim that
Williamson breached his agreement to pay Whitworth for services
the latter performed.
The subject matter of Whitworth's small
claims action against Williamson was the dispute between the two
over the missing car parts and the alleged $75 debt for services
rendered.
Despite Williamson's arguments to the contrary, it is
readily apparent to this Court that the claim for abuse of
process and malicious prosecution arose out of the very same
transaction that was the subject matter of the small claims suit.
Accordingly, these claims were compulsory counterclaims that
should have been asserted in the small claims action in the
Jefferson District Court.
Next, Williamson argues that he was forbidden from
bringing his claims in the small claims action as they did not
meet the criteria for compulsory counterclaims and they exceeded
the $1,500 maximum jurisdictional limit of small claims court.
Our holding that Williamson's claim did comprise compulsory
counterclaims resolves the first portion of this argument.
The
second prong of this argument is easily disposed of by reference
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to Kentucky Revised Statutes (KRS) 24A.290, which provides that
only compulsory counterclaims can be filed in small claims court.
There is, however, no prohibition in that statute preventing a
defendant from filing a counterclaim in excess of that court's
jurisdictional limits.
In fact, such a counterclaim is
contemplated by this statute, which also provides that "[i]f the
defendant's counterclaim is in excess of the jurisdictional
limits of the division, then the provisions of KRS 24A.310(1)
shall apply."
KRS 24A.310(1) provides:
"An action shall be
removed from the small claims division to the regular docket of
district or circuit court as appropriate whenever the defendant's
counterclaim exceeds the jurisdictional limit of the division or
the district court."
Thus, had Williamson filed his
counterclaim, the entire action would necessarily have been
transferred.
Certainly, he was not prohibited from filing a
counterclaim because it exceeded the jurisdictional limits of the
court.
Thirdly, Williamson argues that even if his claims were
compulsory counterclaims with respect to the small claims court
action, he was under no duty to file them as counterclaims.
relies on the wording of KRS 24A.290 which states that a
He
defendant "may file with the clerk a counterclaim against the
plaintiff" as opposed to CR 13.01 which uses the mandatory
language, "[a] pleading shall state as a counterclaim . . ."
(emphases added).
This argument has some merit, particularly
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considering this Court's holding in Hibberd v. Neil Huffman
Datsun, Inc., Ky. App., 791 S.W.2d 726 (1990), as follows:
[T]he basic thrust of the small claims
division is to the simplification of the
legal system to allow laymen easy and
understandable access to our courts. As
a result, we must construe the statute
to avoid introducing additional
complicating procedural requirements
such as the post-judgment motions at
issue.
Moreover, the small claims division
is a special statutory proceeding. As
such, its procedures prevail over the
Civil Rules to the extent that they
differ.
Id. at 728.
Nevertheless, Egbert v. Curtis, supra, established
that a compulsory counterclaim must be asserted in a small claims
action or forever lost.
In that case, this Court affirmed the
summary dismissal of a claim based on the doctrine of res
judicata where the appellant's claim "properly belonged in the
earlier litigation” in the small claims division of the Caldwell
District Court.
695 S.W.2d at 124.
Finally, Williamson argues that the trial court also
erred in summarily dismissing his claim for wrongful use of civil
proceedings.
The tort of wrongful use of civil proceedings is
described in the Restatement (Second) of Torts, § 674 (1977), as
follows:
One who takes an active part in the
initiation, continuation or procurement
of civil proceedings against another is
subject to liability to the other for
wrongful civil proceedings if
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(a) he acts without probable cause,
and primarily for a purpose other than
that of securing the proper adjudication
of the claim in which the proceedings
are based, and
(b) except when they are ex parte,
the proceedings have terminated in favor
of the person against whom they are
brought.
Obviously, the small claims action did not terminate in
Williamson's favor.
He contends that this fact is not an
impediment and that his case falls within the exception to the
above favorable termination requirement where it is shown that
the underlying judgment was "obtained by fraud or perjury."
Taylor v. Nohalty, Ky., 404 S.W.2d 448, 449 (1966).
See also
Kentucky Farm Bureau Mutual Insurance Company v. Burton, Ky.
App., 922 S.W.2d 385 (1996) (judgment creditor can be liable for
wrongful garnishment where its judgment was the "product of a
forgery").
In his reply brief, he states that "[a]t trial [he]
would offer proof that the purported statement of Charles B.
Williamson, . . . is a forgery."
The problem with Williamson's argument in this regard
is that he mischaracterized Whitworth's motion for summary
judgment as a motion to dismiss governed by CR 12.02.
The record
discloses that the motion which resulted in the dismissal of
Williamson's claim arising from the small claims action was
brought pursuant to CR 56.
Williamson, who was represented by
counsel, did not produce any affidavits establishing the
existence of a fact question about the authenticity of Charles'
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statement or any other evidence suggesting that the judgment was
obtained by fraud, corruption or perjury.
Ky., 475 S.W.2d 636, 638-639 (1972).
See Freeman v. Logan,
Nor did Williamson ask for
more time to obtain affidavits or other evidence to overcome the
motion.
We are familiar with the directive of Steelvest, Inc.
v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476, 482
(1991), that a summary judgment should be granted "[o]nly when it
appears impossible for the nonmoving party to produce evidence at
trial warranting a judgment in his favor. . . ."
However, that
case also holds that the nonmoving party cannot "defeat" such a
motion "without presenting at least some affirmative evidence
showing that there is a genuine issue of material fact for
trial."
Id.
Williamson's failure to produce any evidence that
the statement was a forgery or that Whitworth perjured himself in
the underlying action, precludes his bid for a trial on the
merits.
Accordingly, the judgment of the Jefferson Circuit Court
is affirmed.
Whitworth, who is frustrated by Williamson’s refusal to
pay the small claims court judgment and by his unsuccessful
efforts to obtain discovery so as to enable him to otherwise
collect the judgment, has requested that this Court sanction
Williamson and his attorneys for filing a meritless appeal and
“for deliberately and knowingly making material misleading
statements.”
Having reviewed the entire record, we are
unconvinced that Williamson has misrepresented its contents to
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this Court.
Further, while we have rejected each of Williamson’s
legal arguments, they have not been so “totally lacking in merit”
as to suggest that the appeal was taken in bad faith.
v. Redmon, Ky., 734 S.W.2d 462, 464 (1987).
See Leasor
Accordingly,
Whitworth’s request for sanctions is denied.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Hon. Jacqueline K. Schroering
Hon. Harry L. Gregory, III
Louisville, KY
Steve A. Whitworth, Pro Se
Prospect, KY
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