MOSELEY (FORREST ALAN) VS. NORRIS (HAILEY M.)
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RENDERED: MARCH 11, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000505-MR
FORREST ALAN MOSELEY
v.
APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE HENRY M. GRIFFIN III, JUDGE
ACTION NO. 04-CI-01201
HAILEY M. NORRIS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: TAYLOR AND STUMBO, JUDGES; SHAKE,1 SENIOR JUDGE.
SHAKE, SENIOR JUDGE: Forrest Alan Moseley appeals pro se from the Daviess
Circuit Court’s order denying his motion to “Vacate Void Judgment.” For the
reasons stated herein, we affirm.
1
Senior Judge Ann O’Malley Shake sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
Hailey Norris filed suit against Forrest Alan Moseley for loss of
parental consortium stemming from events that occurred on January 31, 1995
which resulted in the shooting death of Norris’s mother, Mary Yvette Fuqua
Norris. Norris was a minor at the time of the shooting. Moseley was subsequently
convicted of the wanton murder of Norris’s mother.
Upon obtaining the age of majority, Norris filed suit against Moseley.
Moseley was serving a forty year sentence at the time that Norris filed the suit.
The trial court granted partial summary judgment in favor of Norris on the issue of
liability based on Moseley’s conviction. A jury trial was held, attended by
Moseley via telephone, on the issue of damages. The jury awarded Norris
$150,000 for the loss of parental consortium. Thereafter, an order and judgment to
that effect was entered on January 27, 2005.
Moseley filed a motion to vacate with the trial court claiming
improper communications with jurors, and this motion was denied. Thereafter,
Moseley filed a direct appeal with this Court. However, the parties subsequently
filed a joint motion to dismiss the appeal. To memorialize a settlement of the
action, Norris agreed to pay $500 in a check payable to counsel for Moseley as
soon as certain property was sold, the proceeds distributed, and the time had run on
the appeal of the action. Norris also agreed to enter a notice of satisfaction of the
judgment, which was filed on February 16, 2006.
On October 16, 2009, approximately four years after the trial court’s
original order and judgment in the civil action, Moseley filed a “motion to vacate
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void judgment” the trial court’s judgment of January 27, 2005. The trial court
denied the motion, finding, among many things, that Moseley’s motion was
untimely under Kentucky Civil Rule (CR) 60.02. Moseley has appealed from the
trial court’s order denying his motion to vacate.
We do not reach the merits of Moseley’s appeal, however, because his
motion was untimely. As already stated, Moseley filed a motion to vacate a
judgment entered on January 27, 2005. CR 60.02 provides:
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.
A motion under this rule does not affect the finality of a
judgment or suspend its operation.
(Emphasis added). Because Moseley’s motion was filed more than four years after
the January 27, 2005 judgment, the motion is not timely filed to permit relief for
the grounds stated in CR 60.02(a), (b), or (c).
Moseley also seeks relief under CR 60.02(d)-(f), and the rule requires
that any motion brought under these provision must be brought within a
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“reasonable time.” “What constitutes a reasonable time in which to move to vacate
a judgment under CR 60.02 is a matter that addresses itself to the discretion of the
trial court.” Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983); see Reyna
v. Commonwealth, 217 S.W.3d 274, 276 (Ky. App. 2007) (finding that a delay of
four years between the judgment and the filing of the CR 60.02 motion was
unreasonable). The trial court in this case found, among other things, that
Moseley’s motion was not brought within a reasonable time, and we have been
provided with no reason to doubt this finding. Therefore, because Moseley’s CR
60.02 motion was not timely filed, we need not address the merits of the motion.
Additionally, motions under CR 60.02 are “not intended merely as an
additional opportunity to relitigate the same issues which could ‘reasonably have
been presented’ by direct appeal . . .[.]” McQueen v. Commonwealth, 948 S.W.2d
415, 416 (Ky. 1997) (citations omitted). A motion pursuant to CR 60.02 “is not a
separate avenue of appeal to be pursued in addition to other remedies, but is
available only to raise issues which cannot be raised in other proceedings.” Id.
Moseley makes the conclusory claim that fraud was committed by his
attorney and the plaintiff’s attorney, that there was misconduct by the trial judge,
and that there was a conspiracy among the three of them in Moseley’s civil trial.
Moseley bases these allegations on the fact that the trial judge ruled that the cause
of action for loss of parental consortium declared in the case of Giuliani v. Guiler,
951 S.W.2d 318 (Ky. 1997), was retroactive and applied to Moseley having killed
Norris’s mother, either by negligent or willful act.
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When the facts are considered, however, Moseley’s claim of error
amounts to no more than an error of law, and the remedy was an appeal to the
Court of Appeals. Moseley had the opportunity to appeal the judgment which he
now seeks to vacate, and it was in fact appealed by him. However, that appeal was
dismissed on the joint motion of both parties entered on October 17, 2005. As the
trial judge stated:
. . . Even if . . . the Court was in error, the circuit court as
a court of general jurisdiction had the legal authority to
adjudicate the claims.
Moreover, Moseley was aware of this issue when he voluntarily dismissed his
direct appeal. In a letter placed by Moseley into the record, he stated:
There is an issue that I need your opinion about. This
case is about an incident that took place on January 31,
1995, in [Giuliani], the Kentucky Supreme Court said on
page 319, paragraph three, (see case attached), that “such
a cause of action does not currently exist in Kentucky,
but it should.”
Since the state of Kentucky didn’t even recognize a
child’s loss of parental consortium until the 2nd of
October, in 1997, and the incident that caused the death
took place on January 31, 1995, the civil suit should have
been dismissed with prejudice as soon as it was filed. No
circuit court in Kentucky, nor the Kentucky Court of
Appeals, nor the Kentucky Supreme Court even
recognized parental consortium until two, (2), years after
the incident that caused the death . . . [.]
Therefore, because Moseley could have raised the issue on direct appeal, the trial
court did not err in denying the motion.
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Moseley also argues that the trial court violated the Ex Post Facto
clause of the United States Constitution and the Kentucky Constitution. This is a
civil matter, however, and those clauses concern only criminal matters. See
Nicholson v. Judicial Retirement and Removal Commission, 562 S.W.2d 306, 308
(Ky. 1978) (citing Beazell v. Ohio, 269 U.S. 167, 169, 46 S.Ct. 68, 70 L.Ed. 216
(1925); Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1898);
Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed.506 (1883); Calder v. Bull, 3
U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798) (“It is clear that the ‘ex post facto’
prohibition applies only to criminal matters”).
Additionally, Moseley argues that he was entitled to an evidentiary
hearing on his motion. However, in Land v. Commonwealth, 986 S.W.2d 440, 442
(Ky. 1999), the Kentucky Supreme Court held that “[t]he decision to hold an
evidentiary hearing is within the trial court’s discretion and we will not disturb
such absent any abuse of that discretion.”
For the foregoing reasons, the judgment of the Daviess Circuit Court
is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Forrest Alan Moseley, pro se
West Liberty, Kentucky
Ronald M. Sullivan
Owensboro, Kentucky
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