TONY GRAVES, JR. v. R. FRED CAPPS AND TONY GRAVES, JR. v. DAVID KELLY CARTER AND R. FRED CAPPS
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NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1996-CA-001575-MR
TONY GRAVES, JR.
APPELLANT
APPEAL FROM MONROE CIRCUIT COURT
HONORABLE PAUL BARRY JONES, JUDGE
ACTION NO. 95-CI-00188
v.
R. FRED CAPPS
AND
APPELLEES
NO.
1996-CA-001646-MR
TONY GRAVES, JR.
v.
APPELLANT
APPEAL FROM MONROE CIRCUIT COURT
HONORABLE PAUL BARRY JONES, JUDGE
ACTION NO. 95-CI-00188
DAVID KELLY CARTER AND
R. FRED CAPPS
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, EMBERTON, AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Tony Graves, Jr. (Graves) appeals from a Monroe
Circuit Court judgment entered on April 19, 1996, that dismissed
his civil complaint against David Kelly Carter (Carter) and R.
Fred Capps (Capps).1
We affirm.
Graves was convicted on May 24, 1994, in the Monroe
Circuit Court on four counts of trafficking in a controlled
substance and he was sentenced to an aggregate prison term of
twenty-four years.
Attorney Carter represented Graves in that
case and Capps was the Assistant Commonwealth’s Attorney who
prosecuted Graves.
On November 22, 1995, Graves filed a civil complaint
against Carter and Capps which alleged “legal malpractice,”
“fraud,” “breach of oral and/or implied contract,” “injury to the
rights of the plaintiff,” “outrageous conduct,” and “cruel and
unusual punishment.”
In violation of Kentucky Rules of Civil
Procedure (CR) 8.01(2), Graves asked for $500,000 in compensatory
damages and $500,000 in punitive damages from each defendant.2
Graves made the very serious allegation that he, Capps,
1
On May 15, 1996, the trial court denied Graves’ motion to
alter, amend or vacate. On May 24, Graves filed a notice of
appeal naming Carter and Capps as appellees and the case was
assigned number 1996-CA-001646-MR. On May 28, for reasons
unknown, Graves filed another notice of appeal which named only
Capps as the appellee. That appeal was assigned case number
1996-CA-001575-MR. Both appeals will be disposed of by this
Opinion.
2
Graves also asked for “recissory [sic] damages,”
“consequential damages,” “special damages,” and “actual damages”
“against each defendant in an amount to be determined.”
-2-
and Carter had entered into an agreement to buy votes in a
primary election in which Capps was running for Commonwealth’s
Attorney.
Graves claimed that Capps assured him that if he would
obtain votes for Capps by vote buying, Capps would take the
appropriate steps so that Graves would not go to prison on his
pending drug charges.
Graves alleged that Capps told him that
Capps would pay absentee voters $50.00 each and regular voters
$20.00 each for their votes.
Graves alleged that Carter stated
that he would represent him in his criminal case free of charge
if he would solicit votes for Capps.
Graves claims that Capps
had stated that he would appoint Carter Assistant Commonwealth’s
Attorney if Capps won the election.
Graves claimed that he and
his father procured 25 absentee voters, all of whom received
payment at Carter’s office, and that on election day he and his
father procured 150-200 voters, many of whom were paid with half
pints of whiskey from three cases of whiskey Carter had given to
him to use as payment for them voting for Capps.
Thus, Graves
alleged that he, Capps and Carter were engaged in multiple
violations of KRS 119.205, a Class D felony.
Graves contended that Capps reneged on his end of the
bargain when he successfully prosecuted Graves for the drug
offenses and later strongly opposed shock probation for Graves.
Graves claimed that since Capps told him he would assist him in
helping him avoid prison that he relied on his belief that Capps
would recommend, and he would receive, shock probation.
-3-
He
claims this reliance is why he did not file a direct appeal from
his criminal convictions.
Carter and Capps answered and pleaded the defenses of
statute of limitations, fraud, illegality, and the statute of
frauds.
Capps also pleaded immunity as a defense.
Carter’s and
Capps’ answers each included a motion to dismiss the complaint
for failure to state a claim upon which relief can be granted.
CR 12.02(f).
On February 29, 1996, Graves filed a motion for
enlargement of time to file a response to Capps’ motion to
dismiss.
In his motion, Graves pointed out that he was
incarcerated and that he needed additional time in preparing his
case due to “the unavoidable hardship and burden it places upon
him. . . .”
On March 7, 1996, Graves filed a similar motion
seeking an enlargement of time to prepare a response to Carter’s
motion to dismiss.
By order entered on March 11, 1996, the trial
court granted Graves an additional ten days in which to respond
to Carter’s motion.
On March 22, 1996, Graves filed a motion for
an additional extension of time of fourteen days to respond to
Carter’s motion arguing that even though the order granting the
first extension was postmarked March 12, he did not receive it in
his prison mail until March 18, which only gave him three days to
respond.
On March 26, 1996, the trial court granted Graves an
additional ten days to respond to Carter’s motion.3
3
On April 8,
The trial court did not mention Graves’ motion for an
(continued...)
-4-
1996, Graves filed his response to Carter’s motion to dismiss and
a motion for a “final extension of time in which to file his
Response to Defendant Carter’s motion to dismiss. . . .”
Graves’
pleadings were filed on April 8, 1996—thirteen days after the
trial court’s previous ten-day extension of time, or three days
late.
By order entered on April 19, 1996, the trial court
denied Graves a further extension of time and dismissed his
complaint for failure to state a claim.
The trial court stated
as follows:
The Court has made every effort to generously
accommodate Plaintiff. However, the Court’s
generosity has its limits. Plaintiff was on
notice via the Court’s order of March 22,
1996[,] that he would receive no further
extensions of time. However, despite the
Court’s warning Plaintiff did not even mail
his response until after the second extension
of time had expired. Therefore, Plaintiff’s
motion for a final extension of time is
hereby DENIED. Plaintiff’s response,
consequently, was not timely filed and will
not be considered by the Court.
Although Plaintiff’s complaint is riddled
with unsubstantiated hearsay and
uncorroborated innuendo, the essence of his
assertion is that the Defendants orally
promised him that they would procure a
dismissal of the criminal charges against him
if he would illegally induce (i.e. pay)
people to vote for Defendant Capps in an
upcoming election. Plaintiff further cites a
laundry list of malpractice grievances
against Defendant Carter, who represented
Plaintiff in his criminal trial in 1994.
3
(...continued)
extension of time to respond to Capps’ dismissal motion.
-5-
It has long been held that a Court dealing
with a motion to dismiss under CR 12.02(f)
must construe the pleadings “in a light most
favorable to the Plaintiff” and accept the
allegations in the complaint as true. Gall
v. Scroggy, Ky.App., 725 S.W.2d 867, 869.
Therefore, for purposes of considering the
motions to dismiss, the Court must accept the
Plaintiff’s loathsome allegation that the
Defendants entered into an agreement with the
Plaintiff to acquire a dismissal of the
criminal charges against him in return for
the Plaintiff’s help in buying votes for
Defendant Capps in an upcoming election.
Vote buying activities are illegal in
Kentucky under KRS 119.205. Therefore, any
agreement or contract to perform vote buying
activities is a contract based upon an
illegality. Such a contract is invalid and
unenforceable. Zeitz v. Foley, Ky., 264
S.W.2d 267 (1954). Consequently, even if
Plaintiff and Defendants had some sort of
oral contract concerning vote buying, that
illegal contract could not and will not be
enforced by the Court. Therefore, the
motions of Defendant Carter and Defendant
Capps to dismiss that portion of Defendant’s
complaint in which Plaintiff endeavors to
receive damages based upon an alleged illegal
contract is hereby SUSTAINED.
Plaintiff also alleges malpractice against
Defendant Carter in his complaint. The
actions (or inactions) cited by Plaintiff
occurred in the first half of 1994. However,
Plaintiff did not even file his complaint
until November of 1995. KRS 413.245 clearly
states that an action for professional
service malpractice shall be brought within
one year. Plaintiff’s action was not filed
within this time limit. Therefore, Defendant
Carter’s motion to dismiss the allegations of
malpractice against him in Plaintiff’s
complaint is hereby SUSTAINED.
In summary, there appears to be no basis
for Plaintiff to recover from either
Defendant, even if all of the allegations in
his complaint are true. Plaintiff’s claim is
barred because it is based on an illegal
-6-
contract and was filed after the expiration
of the statute of limitations.
Graves then filed a motion to alter, amend or vacate.
Graves argued that the trial court had erred in ruling that his
response was filed untimely.
Graves relied on Houston v. Lack,
487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), for the
rule that federal pro se inmate notices of appeal are deemed to
be filed at the time the inmate delivers the notice to the prison
authorities for forwarding to the court clerk not when the court
clerk receives the notice.
(See also Higgenbottom v. McManus,
840 F.Supp. 454 (W.D. Ky.1994), which held that Houston applied
to pro se federal inmates filing civil complaints.)
Graves
claimed that he had given his completed response to prison
officials on April 2, to make copies for him and they did not
return the original and copies until late on the evening of April
4, making it impossible for him to place the documents in the
mail until April 5.
Graves claimed that Houston and Higgenbottom
recognize that prisoners do not have any control over when and
how prison officials perform their official duties and that
prisoners are not to be held accountable for circumstances beyond
their control.
He argued that in this case he is entitled to
such consideration and that the trial court abused its discretion
in ruling that his response was untimely.
Graves also argued
that the trial court failed to address and make findings on his
allegations of fraud, outrageous conduct, “injury to the rights
of the plaintiff” and “cruel and unusual punishment.”
-7-
On May 15, 1996, the trial court denied Graves’ motion
to alter, amend or vacate, and stated that granting an extension
of time is a matter of judicial discretion and its denial of such
was not an abuse of discretion, citing Moffitt v. Asher, Ky., 302
S.W.2d 102 (1957).
The trial court reiterated that it had made
every reasonable effort to accommodate Graves when it granted the
two previous extensions, and stated as follows:
Plaintiff also states that the Court’s
dismissal of his suit did not address his
claims of fraud, injury to the rights of the
plaintiff, outrageous conduct, and cruel and
unusual punishment. The action filed by
Plaintiff was properly dismissed because it
was barred by the statute of limitations and
was based upon an alleged illegal contract
between Plaintiff and the Defendants.
Therefore, there was no reason for the Court
to consider any of Plaintiff’s other causes
of action. However, to avoid any future
questions and to clarify the record, the
remainder of Plaintiff’s causes of action
will be discussed.
To sustain an action for fraud, one must
prove a misrepresentation of a present
material fact, not “a mere promise for the
future.” Church v. Eastham, Ky., 331 S.W.2d
718, 719 (1960). Plaintiff’s claim is based
upon the assertion that the Defendants
promised him future legal leniency in return
for his help in an election. Thus,
Plaintiff’s claim is based upon a promise for
the future and, therefore, clearly fails to
meet the dictates of Church, supra.
Plaintiff’s claim of injury to his rights
states that he was denied, inter alia, due
process of law, right to counsel, and right
to a fair trial. However, Plaintiff was
convicted by a jury of his peers following a
trial in which he was represented by
competent, retained counsel. This claim is,
consequently, refuted by the record and is
without merit. Even assuming that the
-8-
conduct of the Defendants occurred as alleged
by Plaintiff, that conduct does not qualify
as “harassment intended to cause extreme
emotional distress” as required for
outrageous conduct claims in Humana of
Kentucky v. Seitz, Ky., 796 S.W.2d 1, 3
(1990). Accordingly, this aspect of
Plaintiff[’]s claim must also fail. Finally,
Plaintiff’s claim of cruel and unusual
punishment must also fail as his confinement
in prison following a lawfully obtained
conviction is not such that it “shocks the
general conscience and violates the
principles of fundamental fairness” as
required for claims of cruel and unusual
punishment by Cutrer v. Commonwealth,
Ky.App., 697 S.W.2d 156, 158 (1985).
In summary, Plaintiff’s claim should be
dismissed for the above-cited reasons, as
well as those set forth in the Court’s order
of April 19. To avoid any further confusion,
all of Plaintiff’s claims and causes of
action are hereby DISMISSED.
This appeal followed.
In our review, we must determine whether the
allegations made in Graves’ complaint adequately state the
factual and legal bases of an enforceable claim.
“A motion to
dismiss for failure to state a claim does not test the merits of
the action but is confined solely to the sufficiency of the
pleading” (emphasis added).
909 (1972).
White v. Brock, Ky., 487 S.W.2d 908,
See also City of Louisville v. Stock Yards Bank &
Trust, Ky., 843 S.W.2d 327, 328 (1992).
We are mindful that “the
central purpose of pleadings remains notice of claims and
defenses”, Hoke v. Cullinan, Ky., 914 S.W.2d 335, 339 (1995), and
“the court should not dismiss unless it appears the plaintiff
would not be entitled to relief under any state of facts which
-9-
could be proved in support of his claim.”
Ky., 340 S.W.2d 479, 480 (1960).
Ewell v. Central City,
Furthermore, the motion to
dismiss for failure to state a claim is viewed with disfavor and
rarely granted.
Phillips, Kentucky Practice: Civil Procedure,
Rule 12.02, § 9 (1995) citing Wright & Miller, Federal Practice
and Procedure: Civil 2d, § 1357.
A dismissal for failure to
state a claim is determined as a matter of law; hence, we need
not defer to the trial court.
Matthews v. Holland, Ky.App., 912
S.W.2d 459, 460 (1995).
First, we address Graves’ claim of legal malpractice
against Carter.
The trial court dismissed this claim on the
basis that since it was filed after the statute of limitations
had expired, the complaint failed to state a claim upon which
relief can be granted.
See Old Mason’s Home of Kentucky, Inc. v.
Mitchell, Ky.App., 892 S.W.2d 304 (1995).
Graves correctly
argues that in a legal malpractice action the statute of
limitations does not begin to run “[u]ntil the legal harm became
fixed and non-speculative.”
Alagia, Day, Trautwein & Smith v.
Broadbent, Ky., 882 S.W.2d 121, 125-126 (1994).
Graves’ complaint was filed on November 22, 1995, so we
must determine whether the alleged “legal harm became fixed and
non-speculative” prior to November 22, 1994.
Graves was
sentenced by the Monroe Circuit Court on May 25, 1994, and on
July 29, 1994, he filed a pro se motion for shock probation.
Graves alleged in his complaint that “[a]t the time of filing his
motion for shock probation, the plaintiff was under the
-10-
reasonable impression and blief [sic] from statements made to him
by the defendants that defendant Capps was still ’going to help’
him in the criminal case and help secure his release on shock
probation in eventual fulfillment of the agreement.”
The circuit
court denied the motion for shock probation on October 5, 1994.
Graves further alleged in his complaint that “[i]n mid December
1994, the plaintiff learned that in place of defendant Capps
assisting in helping him to make shock probation, Capps objected
and strongly opposed plaintiff[’s] motion. . . .”
Thus, Graves
has raised a substantial question concerning the running of the
statute of limitations.
Nevertheless, his claim is barred as a
matter of law as being founded upon an illegal act, and we affirm
the trial court’s dismissal, although for a different reason.
Carrico v. City of Owensboro, Ky., 511 S.W.2d 677, 678 (1974).
The Court in Blankenship v. Green, 283 Ky. 700, 143
S.W.2d 294 (1940), stated this ancient rule of law as follows:
“The general principle was long ago stated by
Lord Mansfield, with his usual completeness
and felicity of expression: ’The objection
that a contract is immoral or illegal, as
between plaintiff and defendant, sounds at
all times very ill in the mouth of the
defendant. It is not for his sake, however,
that the objection is ever allowed; but it is
founded on general principles of policy,
which the defendant has the advantage of,
contrary to the real justice, as between him
and the plaintiff. * * * No court will lend
its aid to a man who founds his cause of
action upon an immoral or an illegal act.’”
That opinion recognized the general doctrine
that when such a contract is executed the law
will not assist the party who has parted with
his money or property and seeks recovery back
-11-
or that when executory it will not compel
compliance.
Id. 283 Ky. at 705-706 quoting Bertram v. Morgan, 173 Ky. 655,
659, 191 S.W. 317, 318 (1917), citing Cranson v. Goss, 107 Mass.
439, 9 Am.Rep. 45.
In Miller v. Miller, Ky., 296 S.W.2d 684, 688 (1956),
the Court declared as follows:
The rule deducible from many adjudications of
this court is that any conduct or contract of
any illegal, vicious or immoral nature cannot
be the proper basis for a legal or equitable
proceeding. Inevitably the parties are left
in a dilemma which they themselves have
devised. Robenson v. Yann, 224 Ky. 56, 5
S.W.2d 271.
More to the point, is the application of this rule to
improper conduct arising out of legal representation.
The Court
in Jones v. Henderson, 189 Ky. 412, 225 S.W. 34 (1920), stated as
follows:
“Agreements calculated to impede the
regular administration of justice are void as
against public policy, without reference to
the question whether improper means are
contemplated or employed in their execution.
The law looks to the general tendency of such
agreements, and it closes the door to
temptation by refusing them recognition in
any of the courts of the country. Within the
condemned category are agreements to compound
a crime or a penal action; agreements
involving champerty or maintenance;
agreements to refer to arbitration;
agreements to procure a witness to swear a
particular thing or to procure evidence of
any kind; agreements to induce a witness to
testify, or to abstain from testifying or
suppress evidence, or to influence the
testimony of a witness in any way; agreements
to stifle or prevent a criminal prosecution
or to unduly influence its termination;
-12-
agreements involving the evasion of the
service of judicial process; agreements to
conceal the fact that a party is breaking the
law; or agreements interfering with the
proper discharge of the duties of a judicial
officer or other person charged with the
enforcement of the law. . . . All
agreements, it is said in a recent case,
relating to proceedings in court, civil or
criminal, which may involve anything
inconsistent with the impartial course of
justice, are void, although not open to the
charge of actual corruptness, and regardless
of the good faith of the parties or of the
fact that no evil resulted therefrom.”
Id., 189 Ky. at 416-417 (emphases added) quoting 9 Cyc. 500.
Thus, the trial court is also affirmed on its dismissal
of all of Graves’ other claims as each claim arose out of the
alleged illegal contract to buy votes.
As to Graves’ claim that the trial court abused its
discretion in not allowing him additional time to file a
response, we merely state that the trial court clearly acted
reasonably and there was no abuse of discretion.
In light of
thefact that all of Graves’ claims are barred as arising out of
alleged illegalities, it is impossible for Graves to demonstrate
how the trial court’s ruling denying the filing of his response
was harmful to him.
In other words, regardless of any response
that Graves may have filed, all of his claims are barred as a
matter of law.
For the foregoing reasons, the orders of the Monroe
Circuit Court dismissing Graves’ complaint are affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, CAPPS:
Tony Graves, Jr., Pro Se
Saint Mary, KY
Hon. Reginald L. Ayers
Bowling Green, KY
-14-
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