FOX TROT PROPERTIES, LLC V. HON. SAMUEL T. WRIGHT, III, JUDGE, LETCHER CIRCUIT COURT ALL SITTING. ALL CONCUR.
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RENDERED : JUNE 17, 2010
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FOX TROT PROPERTIES, LLC
V.
APPELLANT
ON APPEAL FROM COURT OF APPEALS
CASE NO. 2009-CA-000623-OA
LETCHER CIRCUIT COURT NO . 95-CI-00307
HON. SAMUEL T . WRIGHT, III,
JUDGE, LETCHER CIRCUIT COURT
AND
DLX, INC ., REAL PARTY IN INTEREST
APPELLEES
OPINION OF THE COURT BY JUSTICE NOBLE
AFFIRMING
Appellant, Fox Trot Properties, LLC, appeals to this Court from an order
of the Court of Appeals denying its petition for a writ of prohibition . For the
reasons set forth below, the order of the Court of Appeals is affirmed .
I. Background
This case involves an order of the Letcher Circuit Court staying the
enforcement of its own judgment . In 1995, the court entered default judgment
against DLX, Inc., the real party in interest, for $312,234 .40 . This judgment
was then assigned to Appellant, Fox Trot Properties, LLC, in 2004.
The only asset DLX has which could satisfy the judgment is an 82-acre
tract of land in Estill County. This land has been subject to substantial
litigation in Estill Circuit Court, Letcher Circuit Court, and U.S. Bankruptcy
Court, all relating to Fox Trot's failed attempts to claim ownership of the tract,
its placing clouds of title over the tract, and its attempts to force a sale of the
tract to satisfy the judgment . This litigation has been going on from at least
2001 until at least 2008 .
Based on this protracted litigation, DLX moved the Letcher Circuit Court
in 2008 for partial relief from the judgment under CR 60. DLX claims that it
should not have to pay full postjudgment interest because the only reason it
has not yet satisfied the judgment is that Fox Trot has prevented the sale of the
82-acre tract through its many lawsuits. This is based on the equitable
concept that a debtor does not owe interest during the period when the creditor
prevents payment.
The Letcher Circuit Court ordered the parties to brief the motion and
that Fox Trot be "stayed from any further actions to enforce the judgment until
the issues have been fully briefed, presented and ruled upon by the Court." In
response, Fox Trot filed a writ of prohibition in the Court of Appeals, asserting
that the Letcher Circuit Court did not have jurisdiction to stay enforcement of
its judgment while it considered DLX's motion.
The Court of Appeals denied the writ. Fox Trot appealed to this Court as
a matter of right. Ky. Const. § 115.
II. Analysis
A. Availability of the Writ
"[W]rits of prohibition . . . are extraordinary in nature, and the courts of
this Commonwealth `have always been cautious and conservative both in
entertaining petitions for and in granting such relief' Kentucky Employers Mut.
Ins. v. Coleman, 236 S .W.3d 9, 12 (Ky. 2007) (quoting Bender v. Eaton, 343
S.W.2d 799, 800 (Ky. 1961)) . A writ for prohibition may be issued if the lower
court is (1) acting outside its jurisdiction and there is no remedy through an
application to an intermediate court, or (2) acting erroneously within its
jurisdiction, great and irreparable harm would result, and there would be no
adequate remedy by appeal. Hoskins v. Maricle, 150 S .W.3d 1, 10 (Ky. 2004) .
B. Jurisdiction to Issue the Stay
Fox Trot first argues it is entitled to the writ because the Letcher Circuit
Court acted outside its jurisdiction by staying the enforcement of its own
judgment . The basis of this claim is that the stay affects enforcement
proceedings against the 82-acre tract, which is in another county. This Court
disagrees that this deprives the Letcher Circuit Court ofjurisdiction over its
own judgment .
The power of the court to stay enforcement of the judgment in this case
comes from CR 62 .01 . That rule provides:
In its discretion and on such conditions for the security of the
adverse party as are proper, the court may stay the execution of or
any proceedings to enforce a judgment pending the disposition of a
motion for relief from a judgment or order made pursuant to Rule
60.
This is precisely what happened here . DLX requested relief from the
judgment under Rule 60. Its motion specifically cites CR 60 .03, which
gives the court the power "to relieve a person from a judgment . . . on
appropriate equitable grounds." It can also be reasonably construed as a
request for relief under CR 60.02(lj, which gives the court the power to
"relieve a party . . . from its final judgment" for "any other reason of an
extraordinary nature justifying relief ." The motion cites, and clearly
requests, relief under CR 60 . Under CR 62 .01, then, it was within the
court's discretion to stay enforcement until it could rule on the motion.
The court had jurisdiction to do so . In fact, the only court with
jurisdiction to stay enforcement of a judgment is the court which rendered that
judgmentin this case, the Letcher Circuit Court. This has long been the rule
in Kentucky . KRS 454 .080 provides that:
An injunction to stay proceedings on a judgment shall not be
granted . . . in any other court than that in which the judgment
was rendered. Nor shall such injunction be granted, unless the
party applying therefor make affidavit that no injunction has been
previously granted to stay the proceedings on such judgment .
This statute was enacted in 1952, and it is a verbatim recodification of Section
285 of the Civil Code of Practice, which dates back to the nineteenth century.
Kentucky courts have long recognized that this language means "[t]he court in
which the judgment was rendered alone had the jurisdiction to enjoin it."
McConnell v. Raive, 8 Ky. L. Rptr. 343, 1 S.W . 582, 582 (1886) (citing Section
285 of the Civil Code of Practice; Neeters v. Clements, 75 Ky. (12 Bush) 359
(1876) ; Davis v. Davis, 73 Ky. (10 Bush) 274 (1874)) .
This rule ensures
that comity prevails among the various trial courts of the state.
Orderly procedure and proper respect for courts requires that
attacks upon their judgment should be made in the court
rendering the judgment, rather than in other courts
indiscriminately . Indeed, it would be unseemly for courts in one
county to seek to control execution on a judgment validly entered
in another jurisdiction .
30 Am. Jur. 2d Executions and Enforcement ofJudgments § 328 (2005)
(footnotes omitted) . "Thus, a judgment debtor must, if it has an
adequate basis for doing so, request the court in the county in which the
judgment was entered to stay execution." Id. This is what DLX did .
Fox Trot argues that the Letcher Circuit Court lacked jurisdiction to
issue the stay because the court's order affected its attempts to enforce the
judgment against the 82-acre tract, which happens to lie in Estill County. This
argument fails, however, because this Court has consistently applied the same
rule for cases involving enforcement actions against real estate in other
counties. In summarizing previous cases interpreting the language now in KRS
454.080, the Court said:
In Kelly v. Kelly, [63 Ky. (2 Duv.) 363 (1866)], it was held that,
notwithstanding the note on which judgment was rendered was
given for land . . . . nevertheless it could be enjoined by no other
than the quarterly court in which the judgment was rendered. . . .
In Neeter v . Clements, [75 Ky. (12 Bush) 359 (1876)], it was held
that, even when . . . an execution had been issued by the clerk of
the circuit court, on a judgment of the quarterly court, and levied
on real estate, the circuit court had no jurisdiction to enjoin such
execution, the power to do so being alone in the court that
rendered the judgment; and it was so decided at the present term
of this court in McConnell v. Raive, [8 Ky. L. Rptr . 343, 1 S .W. 582,
582(1886)] . . . where the same question was presented .
Chesapeake, Ohio & Sw. R.R. Co. v. Reasor, 8 Ky. L. Rptr. 374, 1 S .W. 599, 600
(1886) .
Thus, the Letcher Circuit Court had the jurisdiction to stay enforcement
of its own judgment . The Letcher Circuit Court entered the original judgment ;
DLX filed a motion, in Letcher Circuit Court, to modify this judgment under
Rule 60 ; the Letcher Circuit Court then ordered briefing and temporarily stayed
enforcement of its judgment, under CR 62 .01, until it could rule on the motion .
This is precisely what KRS 454 .080 and prior Kentucky cases allow. See, e.g.,
McConnell, 8 Ky. L . Rptr. 343, 1 S.W. at 582 . There is no valid reason to depart
from such clear precedent, and this Court declines to do so.
C. DLX's Underlying Motion
Fox Trot also attacks DLX's underlying motion . First, it argues that the
relief DLX requested, which it says may be "charitably characterized" as a
motion under CR 60 .020, would not "constitute the kind of `unusual
circumstances' justifying relief" under that rule. But that is for the Letcher
Circuit Court to decide when it rules on the motion. Only the temporary stay
of enforcement is before this Court . This Court cannot issue a writ of
prohibition to address the merits of a motion that has not been decided by a
lower court.
In addition, Fox Trot argues that DLX's motion was untimely. Although
a CR 60 .02(1) motion must be "made within a reasonable time," and this "is a
matter that addresses itself to the discretion of the trial court," Gross v.
Commonwealth, 648 S .W .2d 853, 858 (Ky. 1983), this Court has held that this
decision "should be subject to limited jurisdictional review." Asset Acceptance
v. Moberly, 241 S .W.3d 329, 331 (Ky . 2007) . However, as the trial court has
not actually granted CR 60 .02(o relief or made any determination as to
timeliness, there is nothing yet to review . It would be inappropriate to address
this issue first-hand through a writ action, especially as Fox Trot makes no
compelling argument that the motion was not made within a reasonable time .
III. Conclusion
In sum, Fox Trot has failed to show why it is entitled to the extraordinary
relief it requests . It stresses that "Letcher County [has] no jurisdiction over a
lawsuit filed in Estill County" or "over an Estill County proceeding ." However,
the Letcher Circuit Court has jurisdiction to entertain motions for relief from
its own judgment and to stay enforcement of its own judgment while it
considers such motions . That is all that occurred in this case. Fox Trot's other
arguments, as to why DLX's motion should be denied, can be raised and fairly
addressed in the Letcher Circuit Court .
For the foregoing reasons, the order of the Court of Appeals denying Fox
Trot's petition for a writ of prohibition is affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT :
Jason Michael Colyer
Michael Ray Eaves
Sword, Floyd 8v Moody, PLLC
218 West Main Street
PO Box 300
Richmond, Kentucky 40476
APPELLEE, HON. SAMUEL T. WRIGHT, III:
Hon. Samuel T. Wright, III
Judge, Letcher Circuit Court
101 West Main Street
Whitesburg, Kentucky 41858
COUNSEL FOR REAL PARTY IN INTEREST, DLX, INC . :
Wayne Frederick Collier
Shelby C . Kinkead, Jr.
Kinkead 8s Stilz, PLLC
National City Plaza
301 East Main Street, Suite 800
Lexington, KY 40507-1520
Daniel Fayne Dotson
178 Main Street, Suite One
Whitesburg, Kentucky 41858
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