KENTUCKY FARM BUREAU INSURANCE VS. JOYCE & SONS INC. , ET AL.
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RENDERED: FEBRUARY 19, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000025-MR
KENTUCKY FARM BUREAU INSURANCE
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE IRV MAZE, JUDGE
ACTION NO. 07-CI-001263
JOYCE & SONS, INC.;
RODGER WEIHE; AND
SHARON WEIHE
APPELLEES
OPINION
AFFIRMING IN PART,
VACATING IN PART, AND REMANDING
** ** ** ** **
BEFORE: ACREE, KELLER, AND LAMBERT, JUDGES.
KELLER, JUDGE: Kentucky Farm Bureau Insurance Company (Farm Bureau)
appeals from the trial court’s summary judgments dismissing its subrogation
claims. On appeal, Farm Bureau argues that it timely filed its complaint against
Joyce & Sons, Inc. (Joyce & Sons) and that the trial court erred in finding that it
had not done so. Farm Bureau also argues that Joyce & Sons should have been
estopped from asserting the statute of limitations as a defense because it opposed
Farm Bureau’s motion to intervene. For the reasons set forth below, we affirm in
part, vacate in part, and remand.
FACTS
The underlying facts are not in dispute. Rodger and Sharon Weihe
(the Weihes) hired Joyce & Sons to perform electrical work in the garage of their
residence, which Joyce & Sons performed on December 17, 2004. The day after
Joyce & Sons performed that work, the garage caught fire, damaging the structure
and destroying personal property. The Weihes reported their loss to their insurer,
Farm Bureau, and Farm Bureau paid the Weihes $74,690.06 for personal property
loss and $33,372.06 for damage to the garage/residence. Two lawsuits arose from
these underlying facts, and the resultant cases were assigned to separate divisions
in the Jefferson Circuit Court. In an attempt to clarify some procedural
complications at the trial court level, we will set forth the facts in each lawsuit
separately by Division.
1. The Division Six Action
On December 16, 2005, the Weihes filed suit against Joyce & Sons.
That case was assigned to Judge McDonald in Division Six of the Jefferson Circuit
Court and will be referred to hereinafter as “the Division Six action.”
On December 18, 2006, Farm Bureau filed a motion to intervene in
the Division Six action pursuant to Kentucky Rule of Civil Procedure (CR) 24.
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Coincidentally, that motion to intervene was filed the same day the Weihes and
Joyce & Sons reached a mediated settlement of the Division Six action. On
January 2, 2007, Judge McDonald denied Farm Bureau’s motion to intervene
noting that it was “untimely” and that the “[c]ase already settled via mediation.”
On January 2, 2007, Judge McDonald also signed an agreed order of dismissal
again noting the settlement.
On March 8, 2007, Farm Bureau filed a motion to set aside Judge
McDonald’s January 2, 2007, order arguing that it had an absolute right to
intervene and that it had timely sought to assert that right. Farm Bureau also
moved the court to consolidate the Division Six action with another action it had
filed in Division Ten. With its motions, Farm Bureau filed a typewritten order
granting its motions for Judge McDonald’s use. Rather than preparing a separate
order, Judge McDonald wrote “Motion considered & denied 3-12-07” at the
bottom of the order proffered by Farm Bureau and he affixed his signature. Farm
Bureau did not file an appeal from Judge McDonald’s March 12, 2007, order.
2. The Division Ten Action
On February 5, 2007, Farm Bureau filed suit against Joyce & Sons,
asserting its right to subrogation. This lawsuit was assigned to Judge Montano in
Division Ten and will be referred to hereinafter as “the Division Ten action.” At
the outset of our discussion of the Division Ten action, we note that while this
action was pending, Judge Montano died. Following her unfortunate and
premature death, Judges Shake, Mershon, and Maze all issued orders in the
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Division Ten action. In an attempt to clarify what took place in the Division Ten
action, we will, as necessary, identify orders by date and issuing judge.
On June 21, 2007, Joyce & Sons filed a motion to file a third party
complaint against the Weihes in the Division Ten action. In that complaint, Joyce
& Sons asserted that the Weihes had agreed to indemnify it against any claims for
subrogation asserted by Farm Bureau. Judge Montano granted Joyce & Sons’s
motion and joined the Weihes to the Division Ten action.
On September 20, 2007, Joyce & Sons filed a motion for partial
summary judgment. In its motion, Joyce & Sons argued that Farm Bureau filed its
claim for subrogation related to personal property damage after expiration of the
statute of limitations set forth in Kentucky Revised Statute (KRS) 413.125. In its
response, Farm Bureau argued, as it does here, that: (1) it timely filed the
subrogation action under the “savings statute,” KRS 413.270; and (2) Joyce &
Sons is estopped from relying on the statute of limitations.
On December 10, 2007, Judge Montano granted Joyce & Sons’s
motion and dismissed Farm Bureau’s claims for property damage in the Division
Ten action. In her order, Judge Montano mistakenly stated that Judge McDonald’s
March 12, 2007, order in the Division Six action granted Farm Bureau’s motion to
set aside, in effect permitting intervention, and consolidated the Division Six and
Division Ten actions.1 This mistaken interpretation of Judge McDonald’s March
12, 2007, order formed, in part, the basis for Judge Montano’s order. However, we
1
It appears that Judge Montano read the typed portion of the order but not the handwritten
portion.
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note that Judge Montano also stated that KRS 413.270 was not applicable and did
not extend Farm Bureau’s statute of limitations. Therefore, Judge Montano found
that Farm Bureau had not timely filed its complaint for damages relative to
personal property, and she dismissed that portion of Farm Bureau’s claim.
On April 14, 2008, Joyce & Sons filed a second motion for summary
judgment. In that motion, Joyce & Sons sought dismissal of the remainder of Farm
Bureau’s claims, arguing that the Weihes had contractually agreed to indemnify it
for any damages sought by Farm Bureau by way of subrogation. Therefore, Joyce
& Sons could have no liability to Farm Bureau. The parties agreed that Farm
Bureau would have until June 16, 2008, to file a response; however, they
apparently neglected to inform the court of this agreement. On June 5, 2008, Judge
Shake, who was the first judge to step into the case after Judge Montano’s death,
signed an order granting Joyce & Sons’s motion. For reasons that are unclear, that
order was not entered until June 20, 2008. In the interim, Joyce & Sons filed a
motion for leave to file an extended reply brief. Judge Shake granted that motion.
After granting Joyce & Sons’s motion to file an extended brief, Judge
Shake apparently became aware that a response to Joyce & Sons’s motion for
summary judgment existed and that she had not considered it. Therefore, on July
11, 2008, Judge Shake sent correspondence to all counsel indicating that, although
she had received a number of pleadings, she had not received a response from
Farm Bureau to Joyce & Sons’s motion for summary judgment. She stated that she
had entered an order of dismissal on June 20, 2008, and that “[a]s the record now
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stands, the case has been adjudicated on the merits.” However, she indicated that,
“[i]n the event there was a Response timely filed which may have been misfiled
the court [would] reconsider the grant of judgment.”
On July 16, 2008, Farm Bureau filed a motion asking Judge Shake to
set aside her June 20, 2008, order granting summary judgment. Farm Bureau
attached a copy of its response to Joyce & Sons’s motion. In that response, Farm
Bureau, for the first time, also sought reconsideration of the December 10, 2007,
order from Judge Montano granting Joyce & Sons’s motion for summary judgment
regarding personal property.
On August 12, 2008, Judge Mershon, the second judge to step in for
Judge Montano, entered an order setting aside Judge Shake’s June 20, 2008, order
and scheduling a hearing on all pending motions. Following that hearing, Judge
Maze, the third and final judge to step in for Judge Montano, entered an order on
November 7, 2008. In that order, Judge Maze stated at the outset that he would not
set aside the findings of either Judge Montano in her December 10, 2007, order or
Judge Shake in her June 20, 2008, order.2 In doing so, Judge Maze stated that
Judge Shake, in her July 11, 2008, correspondence stated “that the case had been
adjudicated on the merits and that there was nothing to reconsider on behalf of
Kentucky Farm Bureau.” We note that this language appears to ignore Judge
Shake’s statement that she would reconsider her order granting summary judgment
2
We note that Judge Maze refers to Judge Shake’s order as being dated June 20, 2006, and June
5, 2008. However, it is clear from his order as a whole that Judge Maze is referring to Judge
Shake’s June 20, 2008, order.
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if Farm Bureau had timely filed a response. It also appears to ignore Judge
Mershon’s August 12, 2008, order vacating Judge Shake’s June 20, 2008, order.
At the end of his order, Judge Maze states that he is “of the same opinion” as Judge
Shake. Therefore, it is unclear if Judge Maze reviewed the record and came to an
independent conclusion, simply adopted Judge Shake’s findings, or refused to set
aside Judge Shake’s findings.
With regard to Farm Bureau’s motion to vacate Judge Montano’s
December 10, 2007, order, Judge Maze noted that Judge Montano’s order
mistakenly stated that Judge McDonald had permitted Farm Bureau to intervene
and that the Division Six and Division Ten actions had been consolidated.
However, Judge Maze stated that neither misstatement was determinative.
According to Judge Maze, Farm Bureau’s claim for damages with respect to
personal property was not timely filed, and Judge Montano’s misstatements did not
alter that fact.
Farm Bureau filed a motion to set aside, which Judge Maze denied on
January 5, 2009. It is from Judge Maze’s November 7, 2008, and January 5, 2009,
orders, as well as Judge Montano’s December 10, 2007, and Judge Shake’s June
20, 2008, orders that Farm Bureau appeals.
STANDARD OF REVIEW
“The standard of review on appeal of a summary judgment is whether
the circuit judge correctly found that there were no issues as to any material fact
and that the moving party was entitled to a judgment as a matter of law.” Pearson
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ex rel. Trent v. Nat’l Feeding Systems, Inc., 90 S.W.3d 46, 49 (Ky. 2002).
Summary judgment is only proper when “it would be impossible for the
respondent to produce any evidence at the trial warranting a judgment in his
favor.” Steelvest, Inc., v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.
1991). In ruling on a motion for summary judgment, the Court is required to
construe the record “in a light most favorable to the party opposing the motion . . .
and all doubts are to be resolved in his favor.” Id. at 480.
ANALYSIS
Because there are a number of orders involved in this appeal, we will
analyze each separately, although not in chronological order.
1. Judge Shake’s June 20, 2008, Order
Judge Mershon’s August 12, 2008, order set aside Judge Shake’s June
20, 2008, order. Therefore, Judge Shake’s June 20, 2008, order was no longer
effective after August 12, 2008, and was not subject to appeal.
2. Judge Maze’s November 7, 2008, and January 5, 2009, Orders
First, we note that the portion of Judge Maze’s November 7, 2008,
order that states he will not set aside Judge Shake’s June 20, 2008, order is
erroneous. At the time Judge Maze entered his November 7, 2008, order, Judge
Shake’s order had already been set aside.
Second, Judge Maze mistakenly interpreted Judge Shake’s July 11,
2008, correspondence as indicating that she saw no reason to reconsider her June
20, 2008, order. As noted by Farm Bureau and as set forth above, Judge Shake
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indicated that, if a response had been timely filed, she would have reconsidered her
order. Therefore, to the extent Judge Maze’s November 7, 2008, order is premised
on this mistaken interpretation of Judge Shake’s correspondence, it is in error.
Third, Judge Maze states in his November 7, 2008, order that:
the Honorable Judge Ann Shake reviewed the various
orders and opinions that were previously issued in this
matter and concluded that they were correct. As such,
Judge Shake sustained Joyce & Son’s [sic] motion for
Summary Judgment on the remaining claims, dismissing
them with prejudice in an effort to conclude the
litigation.
Based on our review of the record, in particular Judge Shake’s June 20, 2008, order
and her July 11, 2008, correspondence, it is not clear that Judge Shake reviewed
any of the prior orders or concluded that they were correct. In fact, Judge Shake
was not asked to perform any such review or to reach any such conclusion. The
only matter pending before Judge Shake was Joyce & Sons’s second motion for
summary judgment. Therefore, to the extent that Judge Maze relied on the
mistaken belief that Judge Shake had reviewed or ruled on the correctness of any
prior orders, his November 7, 2008, order is in error. We will discuss the
implications of this and the other errors in Judge Maze’s order after we discuss
Judge Montano’s December 10, 2007, order.
Fourth, in his November 7, 2008, order, Judge Maze correctly
concluded that Judge Montano’s misstatements of the facts related to the Division
Six action were not determinative.
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Fifth, Judge Maze correctly concluded in his November 7, 2008, order
and his January 5, 2009, order that Judge Montano appropriately dismissed Farm
Bureau’s claims with respect to personal property. We will further discuss this and
the immediately preceding holding in our analysis of Judge Montano’s December
10, 2007, order.
3. Judge Montano’s December 10, 2007, Order
As noted above, Joyce & Sons filed a motion for partial summary
judgment in the Division Ten action. In its motion, Joyce & Sons asked Judge
Montano to dismiss that portion of Farm Bureau’s claim related to personal
property damage, arguing that said claim was not timely filed. In her December
10, 2007, order granting Joyce & Sons’s motion, Judge Montano incorrectly
interpreted Judge McDonald’s March 12, 2007, order as permitting Farm Bureau’s
intervention in the Division Six action and as consolidating the Division Six and
Division Ten actions. However, as found by Judge Maze, that incorrect
interpretation of Judge McDonald’s March 12, 2007, order is not dispositive.
Reading Judge Montano’s December 10, 2007, order as a whole, it is clear that she
granted Joyce & Sons’s motion based on the statute of limitations, not on whether
Farm Bureau had any other venue for relief. Therefore, we will not further address
Judge Montano’s mistaken interpretation of Judge McDonald’s order.
Setting the preceding aside, Farm Bureau argues that KRS 413.270
provided it with additional time following Judge McDonald’s January 2, 2007,
order to file its complaint. We disagree.
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Kentucky Revised Statute (KRS) 413.270(1) provides that:
If an action is commenced in due time and in good faith
in any court of this state and the defendants or any of
them make defense, and it is adjudged that the court has
no jurisdiction of the action, the plaintiff or his
representative may, within ninety (90) days from the time
of that judgment, commence a new action in the proper
court. The time between the commencement of the first
and last action shall not be counted in applying any
statute of limitation.
Farm Bureau argues that Judge McDonald denied its motion to
intervene because he “clearly believed that [he] had no authority to consider [Farm
Bureau’s] subrogation claim because the underlying matter settled prior to the
hearing.” According to Farm Bureau, this places its claim “squarely within the
parameters” of KRS 413.270(1). To determine if this is correct, we must first look
to Judge McDonald’s order, which simply states, “Motion denied as untimely.
Case already settled via mediation.” The order states that the motion was denied
because it was not timely filed, not because the court lacked jurisdiction.
Furthermore, we note that Judge McDonald did not sign the agreed order of
dismissal until January 2, 2008, the same day he signed the order denying Farm
Bureau’s motion to intervene. Therefore, Judge McDonald retained jurisdiction to
rule on Farm Bureau’s motion and there is nothing in the record, other than
counsel’s supposition, indicating that Judge McDonald thought otherwise.
Having determined that Judge McDonald’s order does not mention
jurisdiction, we must next look to the case law interpreting KRS 413.270, to
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determine if the order otherwise falls within the purview of “jurisdiction.” Farm
Bureau argues that jurisdiction should be “interpreted broadly” to include a number
of issues. We agree. In Dollar General Stores, Ltd. v. Smith, 237 S.W.3d 162 (Ky.
2007), the Supreme Court of Kentucky held that KRS 413.270(1) extends to
dismissals for lack of jurisdiction, improper venue, and forum non conveniens. In
Rooks v. University of Louisville, 574 S.W.2d 923 (Ky. App. 1978), overruled on
other grounds, Guffey v. Cann, 766 S.W.2d 55 (Ky. 1989), this Court stated that
KRS 413.270(1) extends to a case that was dismissed from circuit court because it
should have been filed in the Board of Claims. In Ockerman v. Wise, 274 S.W.2d
385 (Ky. 1954), the Court determined that KRS 413.270(1) applies to actions filed
in federal court subsequently dismissed due to lack of diversity. However, none of
these cases indicate that an intervening party whose claim is, in effect, dismissed
for failure to timely file a motion to intervene, is protected by KRS 413.270(1).
Making such an interpretation would stretch the definition of jurisdiction beyond
all reasonable bounds, and we refuse to do so.
Furthermore, we do not give any credence to Farm Bureau’s argument
that Judge McDonald’s order amounted to a dismissal based on jurisdiction. If
Judge McDonald had dismissed the Division Six action based on jurisdiction, or
even on venue or forum non conveniens, he could have stated as much. Absent
that language, Farm Bureau could have sought modification of the order, which it
did not do. Finally, Farm Bureau has not set forth with any specificity what
jurisdictional problem existed that would have mandated dismissal. As noted by
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Joyce & Sons, Farm Bureau chose the exact same jurisdiction, venue, and forum to
file its complaint; therefore, it does not appear that any of these were problematic.
Based on the foregoing, we hold that KRS 413.270(1) did not extend
the time period within which Farm Bureau was required to file its claim relative to
personal property damage.
Next we must address Farm Bureau’s equitable estoppel argument.
As we understand it, Farm Bureau is arguing that Joyce & Sons should have been
foreclosed from making a statute of limitations argument in the Division Ten
action because it objected to Farm Bureau’s motion to intervene in the Division Six
action.
The essential elements of equitable estoppel are:
(1) Conduct which amounts to a false representation or
concealment of material facts, or, at least, which is
calculated to convey the impression that the facts are
otherwise than, and inconsistent with, those which the
party subsequently attempts to assert; (2) intention, or at
least expectation, that such conduct shall be acted upon
by the other party; (3) knowledge, actual or constructive,
of the real facts. As related to the party claiming the
estoppel, they are: (1) Lack of knowledge and of the
means of knowledge of the truth as to the facts in
question; (2) reliance upon the conduct of the party
estopped; and (3) action based thereon of such a
character as to change his position prejudicially.
Gosney v. Glenn, 163 S.W.3d 894, 899 (Ky. App. 2005) (citing Smith v. Howard,
407 S.W.2d 139, 143 (Ky. 1996)).
Farm Bureau argues that Joyce & Sons should have been estopped
from asserting the statute of limitations for three reasons. First, Farm Bureau
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complains that Joyce & Sons did not notify it of the settlement prior to the hearing
on Farm Bureau’s motion to intervene. The problem with this argument is that
Farm Bureau has not delineated how, if it had known that the parties had settled, it
would have altered its behavior. Furthermore, Farm Bureau has not put forth any
affidavits or other proof indicating that Joyce & Sons failed to notify Farm Bureau
of the settlement with the expectation of altering Farm Bureau’s behavior.
Additionally, Farm Bureau has not indicated how it lacked the means
of finding out about the settlement. Farm Bureau knew of the loss for nearly two
years and chose not to file suit in its own name or to intervene in the Division Six
action. If Farm Bureau had taken either step, it would have known how the
Division Six action was proceeding and could have monitored its progress and
participated in the litigation. Furthermore, Farm Bureau knew the names of the
attorneys representing the parties in the Division Six action because it served them
with its motion to intervene. Farm Bureau has not indicated what kept it from
simply contacting one of the attorneys and asking about the status of the case.
In support of this portion of its argument, Farm Bureau cites several
cases. Harris v. Jackson, 192 S.W.3d 297 (Ky. 2006) involved a motor vehicle
accident. During the course of litigation, the defendant died. Counsel for the
defendant did not advise the plaintiff of his client’s death although he continued to
participate in the litigation on behalf of his deceased client. A year after his
client’s death, counsel moved for dismissal, arguing that the plaintiff had not
revived the claim in the name of the defendant’s estate. The Supreme Court held
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that an attorney has a duty to advise the other parties of the death of a client.
Because counsel for the defendant did not comply with that duty, he was estopped
from asserting that the Plaintiff had not timely filed to revive the claim.
The case herein is distinguishable in at least two ways. First, unlike
the plaintiff in Harris, Farm Bureau was not a party to the Division Six action the
day the Weihes and Joyce & Sons undertook mediation and settled. Farm Bureau
has pointed to no case law that imposes a duty on litigants to inform a non-litigant
that a case has settled. Second, counsel for the Weihes stated at the hearing on
Farm Bureau’s motion to intervene and at the hearing on its motion to set aside,
that he had advised the adjuster at Farm Bureau that the mediation was going to
take place and that he talked to the adjuster the day of the mediation. Therefore,
unlike the plaintiff in Harris, who had no knowledge of the defendant’s death,
Farm Bureau knew that settlement was, if not imminent, certainly possible.
Because Farm Bureau chose to wait until the day of the mediation to file its motion
to intervene, knowing in advance that the mediation was scheduled to take place, it
cannot now complain about the negative impact of that delay.
In Akers v. Pike County Bd. of Educ., 171 S.W.3d 740 (Ky. 2005), the
plaintiff argued that the Department of Workers’ Claims had not, as mandated by
law, appropriately notified him of his statute of limitations. The Supreme Court
cited the elements of equitable estoppel and held that nothing in the record
compelled a finding that the Pike County Board of Education had acted to the
detriment of the plaintiff. Akers can be distinguished because, unlike herein, the
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Pike County Board of Education had a statutorily imposed duty to notify the
Department when it stopped making temporary total disability benefits. Likewise,
the Department had a statutorily imposed duty to advise the plaintiff of his statute
of limitations. Farm Bureau has cited to no case law or statute that requires parties
to litigation to advise a non-party that they have reached a settlement. Therefore,
Akers is not persuasive.
In Harralson v. Monger, 206 S.W.3d 336 (Ky. 2006), the parties were
involved in a multi-vehicle accident. Jacobs, one of the drivers, gave misleading
and incomplete information to the police who investigated the accident, pointing
the blame toward Monger. However, when deposed, after the statute of limitations
had expired, Jacobs provided additional information indicating that he, not
Monger, was at fault. Harralson then filed a motion to amend his complaint to add
Jacobs as a defendant. The court granted that motion but subsequently dismissed
the amended complaint as untimely. The Supreme Court reversed the trial court.
In doing so, the Court noted that Jacobs had a duty to provide the police officers
with accurate information at the time of the accident. The Court held that Jacobs
could not then benefit from his violation of that duty by obtaining a dismissal of
Harralson’s claims against him. In Harralson, the estopped party, Jacobs, had a
duty that he violated. As noted above, Farm Bureau has cited no case law or
statute that imposed a duty on Joyce & Sons to notify it of the settlement.
Therefore, Harralson has no application to this matter.
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Second, it appears that Farm Bureau is arguing that, by filing its
motions for summary judgment in the Division Ten action, Joyce & Sons acted
inconsistently with its objection to intervention in the Division Six action. We are
somewhat confused by this argument. Joyce & Sons wanted to prevent Farm
Bureau from intervening in the Division Six action and wanted the court to dismiss
Farm Bureau’s claims in the Division Ten action. Because Joyce & Sons wanted
to be rid of Farm Bureau in both actions, we believe these positions are consistent.
Furthermore, we do not believe that the case cited by Farm Bureau to
support its argument, Colston Investment Co. v. Home Supply Co., 74 S.W.3d 759
(Ky. App. 2001) is instructive. In Colston, Home Supply Co. (Home Supply)
owned two hotels, both called Executive Inn. Colston Investment Co. (Colston)
opened two hotels, which it named Executive Studios & More. Home Supply sued
Colston for trademark infringement and the trial court found in Home Supply’s
favor. On appeal, Colston argued that Home Supply should have been judicially
estopped from bringing the action because, in a lawsuit thirty years earlier, Home
Supply had asserted that “executive” was not unique enough to warrant protection.
This Court affirmed the trial court. In doing so, we noted that a party may not take
a position that is inconsistent with one successfully and unequivocally asserted in a
prior proceeding. However, a party asserting judicial estoppel must show that the
earlier court adopted the earlier position. Unfortunately for Colston, Home Supply
had settled the earlier lawsuit; therefore, that court had not adopted Home Supply’s
position.
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Unlike the first proceeding in Colston, Judge McDonald did adopt
Joyce & Sons’s argument that Farm Bureau had not timely filed its motion to
intervene. However, as we previously noted, we do not believe that Joyce &
Sons’s argument in the Division Six case, that Farm Bureau was too late in seeking
to intervene, is inconsistent with its position that Farm Bureau filed its Division
Ten action too late. Therefore, Colston is not applicable.
Third, Farm Bureau argues that Joyce & Sons “may not benefit from
its own conduct that resulted in the denial of [Farm Bureau’s] motion to
intervene.” According to Farm Bureau, it was entitled to intervene in the Division
Six action and “Joyce & Sons persuaded the trial court to deny the intervention.”
Farm Bureau may be correct that the trial court should have granted its motion to
intervene; however, it did not appeal Judge McDonald’s order. Therefore, it is too
late to complain about his denial of that motion.
CONCLUSION
Farm Bureau filed its complaint against Joyce & Sons more than two
years after the personal property loss, which is untimely. Nothing that preceded
Farm Bureau’s filing of that complaint acted to trigger the provisions of KRS
413.270(1) or to extend the statute of limitations. Furthermore, Farm Bureau has
not put forth sufficient evidence to support its claim that Joyce & Sons should have
been equitably estopped from asserting the statute of limitations. Therefore, we
affirm Judge Montano’s summary judgment dismissing Farm Bureau’s property
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damage claims. Furthermore, we affirm Judge Maze’s denial of Farm Bureau’s
motion to set aside Judge Montano’s summary judgment.
Because of the confusion revolving around Joyce & Sons second
motion for summary judgment and the orders dealing with that motion, we can
neither affirm nor reverse. We must vacate and remand for clarification from the
trial court. In doing so, we note the errors in Judge Maze’s November 7, 2008,
order discussed above. Because of those errors, it is unclear if Judge Maze made
an independent review of the matter or simply relied on Judge Shake’s June 20,
2008, order. As noted, by the time Judge Maze rendered his order, Judge Shake’s
June 20, 2008, order had been set aside. Therefore, any reliance on that order was
error and must be corrected.
Furthermore, it is unclear to what extent Judge Maze reviewed Farm
Bureau’s response to Joyce & Sons’s motion. Judge Shake indicated in her July
11, 2008, order that she would review any timely filed response. Although Judge
Shake’s correspondence is arguably not binding as an order, Farm Bureau was
entitled to rely on Judge Shake’s assurance. Therefore, on remand, the trial court
should indicate that it has reviewed Farm Bureau’s response.
Next, we note that there are two potential issues of fact that the court
must address. The first is whether the settlement agreement binds the Weihes to
indemnify Joyce & Sons for any and all claims Farm Bureau may assert or only to
the extent of the settlement. We note that there is some indication in the record
that the Weihes only claimed damages from Joyce & Sons in excess of what Farm
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Bureau paid. The trial court must determine if the settlement agreement
encompassed that limitation.
Second, it appears from the record that there is an issue regarding
Joyce & Sons’s liability. The trial court must determine whether that is the case
and, depending on that determination, whether an action against the Weihes can
proceed in the absence of Joyce & Sons. On remand, the trial court must address
the errors and factual issues set forth above.
Finally, we recognize that Judge Montano’s unfortunate and
premature death caused this matter to traverse a somewhat convoluted path through
the circuit court. Following Judge Montano’s death, a number of judges stepped in
to keep this matter moving and, although we have pointed out a number of errors
made by the judges, we do not mean to slight or denigrate their efforts. To the
contrary, we acknowledge and applaud the trial court’s efforts to move this
litigation forward.
Based on the foregoing, we affirm in part, vacate in part, and remand.
ALL CONCUR.
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BRIEF AND ORAL ARGUMENT
FOR APPELLANT:
Philip J. Edwards
Louisville, Kentucky
BRIEF AND ORAL ARGUMENT
FOR APPELLEE JOYCE & SONS,
INC.:
Marie E. Dever
Louisville, Kentucky
NO BRIEF FOR APPELLEES
RODGER AND SHARON WEIHE.
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