DEL KERWYN MARTIN V. ROY CRAWFORD III, Individually and CORPORATION; ODESSA CORPORATION, a Kentucky Corporation; DKM COAL CORPORATION, INC., a Kentucky Corporation; EDWIN P. NEWELL, Individually and in his Capacities KNUCKLES MARTIN (or SEATON) LAUREL KNUCKLES SEATON V. ROY CRAWFORD III, Individually and Corporation

 Annotate this Case
Download PDF
RENDERED: July 2, 1999; 10:00 a.m. NOT TO BE PUBLISHED C ommonwealth O f K entucky C ourt O f A ppeals NO. 1997-CA-002546-MR DEL KERWYN MARTIN V. APPELLANT APPEAL FROM LETCHER CIRCUIT COURT HONORABLE CHARLES LOWE, JR., JUDGE ACTION NO. 87-CI-90 ROY CRAWFORD III, Individually and in his Capacities with ODESSA CORPORATION; ODESSA CORPORATION, a Kentucky Corporation; DKM COAL CORPORATION, INC., a Kentucky Corporation; EDWIN P. NEWELL, Individually and in his Capacities with ODESSA CORPORATION; and LAUREL KNUCKLES MARTIN (or SEATON) AND NO. 1997-CA-002564-MR LAUREL KNUCKLES SEATON V. APPELLEES APPELLANT APPEAL FROM LETCHER CIRCUIT COURT HONORABLE CHARLES LOWE, JR. ACTION NO. 87-CI-90 ROY CRAWFORD III, Individually and as an Officer of ODESSA CORPORATION; and ODESSA CORPORATION, a Kentucky Corporation APPELLEES OPINION AND ORDER AFFIRMING IN PART AND DISMISSING IN PART APPEAL NO. 1997-CA-002546-MR, AND DISMISSING APPEAL NO. 1997-CA-002564-MR * * * * * * * * BEFORE: GUDGEL, Chief Judge; GUIDUGLI and SCHRODER, Judges. GUDGEL, CHIEF JUDGE: These are related appeals from a partial summary judgment, entered by the Letcher Circuit Court, which adjudged appellants liable to appellees pursuant to a lease agreement, and dismissed appellants' counterclaim against appellees. For the reasons stated hereafter, we dismiss Appeal No. 1997-CA-002564-MR in its entirety. Further, we dismiss Appeal No. 1997-CA-002546-MR insofar as it pertains to the finding of liability under the lease agreement, and we affirm it in all other respects. Appellees filed verified complaints alleging that appellants failed to pay, and conspired to deprive, Odessa Corporation (Odessa) of certain rents and royalties due under a lease. The separate actions against appellants were consolidated, and appellants denied the allegations and counterclaimed, asserting that the allegations were libelous. On June 11, 1997, the trial court granted partial summary judgment to appellees as to appellants' liability, denied summary judgment as to the amount of damages, and dismissed the counterclaim. On September 12, 1997, the court denied appellants' motions to alter, amend or vacate, but stated that "[i]t appearing to the Court that there is no just reason for delay, this Judgment is FINAL and APPEALABLE." -2- These appeals, which were designated to be heard together, followed. Both appeals address the partial summary judgment as to liability, while Appeal No. 1997-CA-002546-MR also addresses the dismissal of the counterclaim. First, both appellants contend that the trial court erred by granting a partial summary judgment as to liability. However, even assuming for purposes of this appeal that the September 12 order was sufficient to finalize the June 11 judgment as fully as possible, we must conclude that the appeals from the partial summary judgment are interlocutory. Indeed, the court's partial summary judgment is interlocutory by its very nature since it adjudicates only part of appellees' claim against appellants by adjudicating the question of liability but leaving open the issue of damages. Chittum v. Abell, Ky., 485 S.W.2d 231, 237 (1972). See A judgment which is interlocutory by its very nature may not be made final and appealable by the inclusion of CR 54.02 language. Hook v. Hook, Ky., 563 S.W.2d 716 (1978); Hale v. Deaton, Ky., 528 S.W.2d 719 (1975). Hence, we are compelled to dismiss Appeal No. 1997-CA-002564-MR in its entirety, and to dismiss Appeal No. 1997-CA-002546-MR insofar as it pertains to the partial summary judgment. Next, appellant Del Kerwyn Martin (Martin) contends that the trial court erred by dismissing the counterclaim against appellees. We disagree. -3- The counterclaim alleged that appellees engaged in libelous conduct by asserting in their verified complaints that appellants failed to pay, and conspired to deprive, Odessa of certain rents and royalties due under a lease. Martin asserts that because he is an attorney, he is entitled to relief pursuant to Massengale v. Lester, Ky., 403 S.W.2d 701, 702 (1966), cert. denied, 385 U.S. 1019 (1967), which states that "[a] publication falsely charging an attorney at law with unprofessional conduct is libelous per se, and unless it is privileged both malice and damage are presumed." However, Massengale clearly provides no support here, as the allegations were made against Martin in his personal capacity rather than in his capacity as an attorney. Moreover, statements made in pleadings filed in a judicial proceeding, even if allegedly false or malicious, are absolutely privileged if they are material, relevant, or pertinent to the issues involved in that proceeding. Id. Mann, 291 Ky. 80, 163 S.W.2d 281 (1942). See also Schmitt v. Since the statements in question clearly were pertinent to appellants' alleged failure to pay or conspiracy to deprive appellees of rents and royalties due under a lease, those statements clearly were material, relevant, or pertinent to the action, and therefore were absolutely privileged. Hence, the trial court did not err by dismissing the counterclaim. For the reasons stated herein, Appeal No. 1997-CA-002564-MR is hereby ORDERED DISMISSED in its entirety. Moreover, Appeal No. 1997-CA-002546-MR is hereby ORDERED -4- DISMISSED insofar as it pertains to the finding of liability under the lease agreement, but otherwise is affirmed in all respects. ALL CONCUR. ENTERED: 7-2-99 /s/ Paul D. Gudgel CHIEF JUDGE, COURT OF APPEALS BRIEF FOR DEL KERWYN MARTIN: BRIEF FOR LAUREL KNUCKLES SEATON: Del Kerwyn Martin Hindman, KY Pierce Butler Whites Louisa, KY BRIEF FOR ROY CRAWFORD III, Individually and in his Capacities with ODESSA CORPORATION; ODESSA CORPORATION, a Kentucky Corporation; and DKM COAL CORPORATION, INC., a Kentucky Corporation: Richard E. Fitzpatrick Prestonsburg, KY -5-

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.