BRENDA KIRK SAUL v. TIMOTHY W. FIELDS and PAULA SUE FIELDS
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RENDERED: August 27, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001192-MR
BRENDA KIRK SAUL
APPELLANT
APPEAL FROM BOYD CIRCUIT COURT
HONORABLE C. DAVID HAGERMAN, JUDGE
ACTION NO. 97-CI-00957
v.
TIMOTHY W. FIELDS and
PAULA SUE FIELDS
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; BUCKINGHAM, AND KNOX, JUDGES.
KNOX, JUDGE:
Appellant, Brenda Kirk Saul, appeals from a
judgment of the Boyd Circuit Court awarding appellees, Timothy
and Paula Fields, damages in the amount of $15,228.00 as a result
of appellant’s failure to perform the terms of a real estate
contract. We affirm.
On May 7, 1997, appellant entered into a purchase and
sale agreement whereby she agreed to purchase appellees’ real
property consisting of 20.58 acres for $155,000.00.
The contract
included the sale of appellees’ horses and their furniture
located inside the property’s residence, for an additional
$3,750.00.
Appellant took possession of the property upon
signing the contract.
The contract price was to be paid in installments, the
last of which was due on August 31, 1997.
On October 2, 1997,
appellees filed suit in Boyd Circuit Court, alleging that
appellant had paid only $2,750.00 toward the contract price of
$158,750.00.
Appellant made no appearance in the matter and, as
such, default judgment was entered against her on November 11,
1997.
Subsequent orders awarded appellees possession of the
property and directed appellant to arrange for removal of her
belongings from the residence.
On January 6, 1998, the court
addressed the issue of damages, at which hearing appellant
appeared in person.
Appellees were directed to submit an
affidavit setting forth the damages they were claiming and, in
turn, the court afforded appellant the opportunity to file
objections to appellees’ affidavit within ten (10) days after
receiving it.
Appellees prepared the affidavit, claiming a total of
$15,228.00 in damages.
Specifically, appellees claimed damages
representing rent of $4,000.00 as well as amounts owed for:
property taxes; insurance; boarding fees; furniture; hay and
wood; installation of locks; attorney fees; expenses incurred for
a trip appellees made from their home in Montana to Boyd County;
and, repairs made to the garage door, fence, and barn.
Meanwhile, appellant had failed to remove her personal property
from the house, as she had been ordered to do.
As such,
appellees moved the court for permission to sell appellant’s
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property to satisfy any award of damages the court may issue.
By
order entered February 6, 1998, the court granted appellees’
motion.
Appellant filed exceptions to appellees’ affidavit of
damages, taking issue with the amount of rent appellees claimed
she owed, as well as with other specific items claimed.
Having
considered appellant’s arguments, the court overruled appellant’s
objections to appellees’ affidavit of damages, by order entered
February 10, 1998.
In response, appellant filed a CR 59 motion,
which the court heard the following month.
On April 14, 1998,
the court denied appellant’s CR 59 motion.
It is from this order
that appellant appeals.
We would add that on April 24, 1998, one day prior to
the sale of appellant’s personal property, appellant’s adult
children moved the court for a restraining order preventing the
sale, arguing that much of the property inside the residence was
theirs, not their mother’s.
They asked the court to allow them
to remove their belongings from the house prior to the sale of
the remaining personal property belonging to their mother.
The
court denied their motion, finding they were not parties to the
action, and had not moved to intervene at any time although there
had been ample opportunity to do so.
Thus, the court concluded,
they had no standing to seek such relief.
Appellant first argues that the default judgment was
improperly entered.1
However, we do not believe appellant has
1
Appellant maintains that appellees were represented by an
experienced attorney who should have ascertained that appellant
(continued...)
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properly preserved this issue.
None of appellant’s pleadings of
record establish that she placed this issue before the trial
court, even after judgment was rendered and she was ordered,
several times, to remove herself and her belongings from the
residence on appellees’ property.
In fact, appellant filed no
pleadings whatsoever in this matter until February 9, 1998, three
(3) months after the default judgment was issued against her, and
did so for the specific purpose of interposing objections on the
issue of damages alone.
Further, appellant’s CR 59 motion in this action
addressed only the issue of damages and the judgment, entered
February 6, 1998, by which the court awarded them.2
At no point
in this litigation did appellant move the trial court to set
aside the default judgment.
Rather, it appears that at the trial
court level, appellant contested, and the court reviewed, only
the issue of damages.3
There is no indication the trial court reviewed the
issue on its merits, appellant’s never having contested entry of
1
(...continued)
may not have understood the charges against her and was unaware
of the need to retain counsel or defend herself in this matter.
Further, while appellant admits having been personally served the
initiating complaint, she argues that subsequent pleadings should
have been served upon her either in the same manner or by
registered mail.
2
While appellant states that the issue was addressed during
the hearing on her CR 59 motion, the record of this matter
contains neither a videotape, audiotape, nor transcript of the
hearing which would confirm appellant’s assertion.
3
We further believe it is significant that, on appeal,
appellant raised only the issue of damages in her prehearing
statement.
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the default judgment.
“The Court of Appeals is without authority
to review issues not raised in or decided by the trial court.”
Regional Jail Auth. v. Tackett, Ky., 770 S.W.2d 225, 228 (1989)
(citations omitted).
Thus, we decline to address appellant’s
arguments on this issue.
Appellant next argues that the trial court erred when
it denied appellant’s children the opportunity to remove their
belongings from the residence located on appellees’ property.
Likewise, we do not believe this issue can be raised by appellant
before this Court, given that appellant has no interest in the
subject matter of the order she is appealing, i.e. she has no
interest in her children’s personal property.
Her children’s
having failed to intervene in this matter in a timely and
appropriate manner, appellant may not now appeal to this Court on
their behalf.
As such, we decline to address this issue.
Lastly, appellant argues that the court erred in
awarding appellees each and every item of damages they claimed.
Appellant maintains appellees did not produce sufficient evidence
to support their claims.
It appears the court fully addressed
the issue of damages on March 13, 1998, at which time appellant’s
CR 59 motion was heard.
Although appellant was not present at
the hearing, her counsel and counsel for appellees were afforded
the opportunity to present their positions.
However, there is
neither an audio or video tape of the hearing included in the
record, nor has there been tendered to this Court a transcript of
the proceeding.
We are unaware of what type of evidence the
court considered in overruling appellant’s CR 59 motion, nor does
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the order accomplishing same specify the basis of the court’s
decision.
As such, we are unable to pass upon the merits of
appellant’s argument concerning damages.
For the foregoing reasons, the judgment of the Boyd
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Bradley F. Wallace
Louisa, Kentucky
Anna H. Ruth
Ashland, Kentucky
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