ADAMS (ERNIE) VS. COUCH (MICHELLE)

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RENDERED: OCTOBER 16, 2009; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2008-CA-001538-MR ERNIE ADAMS v. APPELLANT APPEAL FROM SCOTT CIRCUIT COURT HONORABLE ROBERT G. JOHNSON, JUDGE ACTION NO. 96-CI-00111 MICHELLE COUCH APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: STUMBO, THOMPSON, AND WINE, JUDGES. STUMBO, JUDGE: Ernie Adams appeals the denial of his motion to vacate a judgment in which Michelle Couch was awarded over six thousand dollars. The underlying action was a defective building construction case filed in 1996. Mr. Adams argues that the case was dismissed for lack of prosecution on November 7, 2002, and therefore, should not have been revived and tried in 2007. Ms. Couch claims the case was revived by an order of the Scott Circuit Court on December 5, 2002, and was properly tried. We agree that the case was revived by the lower court in 2002, and affirm the judgment against Mr. Adams. This case involves the building of a house by Mr. Adams for Ms. Couch in 1993. After the completion of construction and possession of the house by Ms. Couch, she began to complain of defects with the house. The parties dispute the nature of the defects and whether timely repairs were accomplished. Eventually, Ms. Couch filed a complaint against Mr. Adams on March 29, 1996, in which she sought damages for repairs. On February 20, 1997, this case was assigned to a Master Commissioner for trial. For reasons that do not appear in the record, the case was reassigned to a Special Commissioner. The case went through a number of Special Commissioners until an evidentiary hearing was conducted by Special Commissioner, Don Paris, on April 25, 2000, and June 19, 2000. At this point, the record becomes muddled as parts of it were apparently lost. What can be discerned is that the Special Commissioner took the case under submission at the conclusion of the hearing. An August 14, 2000 show cause order requesting Mr. Adams to pay the Commissioner’s fee states that a Commissioner’s Hearing and Report was filed on June 19, 2000. That report cannot be found and is not in the record. The next action in this case came about on or about September 5, 2002, when it was put on the circuit court’s dismissal docket pursuant to Civil Rule (CR) 77.02(2). This docket is for cases in which no procedural steps have been 2 taken in over a year and directs interested parties to show cause why the case should not be dismissed for lack of prosecution. The case was docketed for dismissal, but was passed to November 7, 2002.1 Perhaps in response to the show cause order, on November 6, 2002, Ms. Couch filed a motion for a new Commissioner to hear the case. The motion was set for a hearing on December 5, 2002. However, on November 7, 2002, the case was dismissed without prejudice for failure to prosecute. Ms. Couch argues this was a mistake because the case had been heard by a Special Commissioner and was still being actively prosecuted. Mr. Adams argues otherwise. On December 5, 2002, a calendar order was entered. The order notes the motion filed by Ms. Couch “reverses” the order dismissing the case, which we take to mean that the trial court set aside the November 7, 2002 order dismissing the case for lack of prosecution. No further action occurred in this case until June 17, 2005, when Ms. Couch filed a motion to set the matter for trial. After several continuances, the case was tried by the Scott Circuit Court on December 7, 2007. Prior to trial, Mr. Adams’ new counsel2 discovered the previous dismissal for lack of prosecution. He moved to dismiss the case for lack of jurisdiction because it had not been revived by any civil rule. He also made other motions, including one to exclude testimony by Ms. Couch’s expert because Mr. 1 We note that an order dismissing for lack of prosecution was entered on September 5, 2002, but it was entered in error as the case was rescheduled for November 7, 2002. 2 In early 2007, Mr. Adams’ original counsel moved to withdraw as counsel and his current counsel then took up the case for trial. 3 Adams had only recently learned of the expert and that the expert only just examined the house, some fourteen years after it was built. There are no orders in the record to show how the court ruled, but it can be assumed the motions were either denied or Adams never brought them to the court’s attention because the trial went forth and the expert was allowed to testify. In the end, the court awarded Ms. Couch $6,745.77. Mr. Adams then moved for the court to vacate the judgment because no CR 59 or CR 60 motion had been made to revive the case after the November 7, 2002 dismissal. Further, he claimed that any attempt by the court to revive the case was not effective because under CR 59, a motion to set aside a judgment must be filed within 10 days of the dismissal. The court overruled the motion and this appeal followed. Mr. Adams’ primary argument is that the trial court erred in not vacating the judgment because the case had been dismissed in 2002, and not properly revived by either a motion brought under CR 59 or CR 60. The relevant civil rules being argued are as follows: At least once each year trial courts shall review all pending actions on their dockets. Notice shall be given to each attorney of record of every case in which no pretrial step has been taken within the last year, that the case will be dismissed in thirty days for want of prosecution except for good cause shown. The court shall enter an order dismissing without prejudice each case in which no answer or an insufficient answer to the notice is made. 4 CR 77.02(2). “A motion for a new trial shall be served not later than 10 days after the entry of the judgment.” CR 59.02. Not later than 10 days after entry of judgment the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party. After giving the parties notice and an opportunity to be heard on the matter, the court may grant a motion for a new trial, timely served, for a reason not stated in the motion. In either case, the court shall specify in the order the grounds therefor. CR 59.04. “A motion to alter or amend a judgment, or to vacate a judgment and enter a new one, shall be served not later than 10 days after entry of the final judgment.” CR 59.05. “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 . . . .” CR 60.01. On motion a court may, upon such terms as are just, relieve a party or his legal representative from its final judgment, order, or proceeding upon the following grounds: (a) mistake, inadvertence, surprise or excusable neglect; (b) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59.02; (c) perjury or falsified evidence; (d) fraud affecting the proceedings, other than perjury or falsified evidence; (e) the judgment is void, or has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (f) any other reason of an extraordinary nature justifying relief. The motion shall be made within a reasonable time, and on grounds (a), (b), and (c) not more than one year after the judgment, order, or proceeding was entered or taken. 5 A motion under this rule does not affect the finality of a judgment or suspend its operation. CR 60.02. Mr. Adams argues that no motion was made to revive the case when it was dismissed in November of 2002. In the alternative, he argues that if a motion was made, it was outside the ten-day limit in CR 59, was not because of a clerical error required by CR 60.01, and was not of such an extraordinary nature as to invoke CR 60.02. We find the calendar order dispositive of this issue. It states that the order dismissing the case was reversed or set aside and that it was on the calendar on a motion from the plaintiff, Ms. Couch. In the context of the rest of the record, Ms. Couch’s November 6th motion was a sufficient response to the show cause order and a basis to set aside the November 7th order. In any event, CR 77.02 dismissals are without prejudice. After the order was entered reversing the dismissal, the parties returned to court on multiple occasions. At no time did Mr. Adams’ previous counsel object to the form of the motion brought to revive the case, the order reviving the case, the ten-day time limit, or the fact that they were even in court. Mr. Adams brings our attention to Hertz Commercial Leasing Corp. v. Joseph, 641 S.W.2d 753 (Ky. App. 1982), in which a previous panel of this Court found that a notation on a docket calendar did not meet the standard of an order for purposes of CR 77.02(2). The case at hand is distinguishable. In the case 6 sub judice there is more than a notation on a calendar. Here, the judge also signed, dated, and entered it into the record. Finally, Mr. Adams argues that Ms. Couch’s expert should not have been allowed to testify because fourteen years had passed from when the house was built and when he examined it. The proper standard for review of evidentiary rulings is abuse of discretion. Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000). “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). We find no abuse of discretion. The length of time which had passed goes to the weight of the evidence and not its relevance. For the foregoing reasons, we affirm the judgment against Mr. Adams. ALL CONCUR. BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE: James Paul Brannon Paris, Kentucky Neil E. Duncliffe Georgetown, Kentucky 7

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