WILLIAM P. BROWN v. KENTUCKY BOARD OF AUCTIONEERS
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RENDERED: August 21, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
No.
96-CA-002514-MR
WILLIAM P. BROWN
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
ACTION NO. 95-CI-6677
v.
KENTUCKY BOARD OF AUCTIONEERS
APPELLEE
OPINION
AFFIRMING
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BEFORE:
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*
*
*
COMBS, GUIDUGLI and JOHNSON, Judges.
JOHNSON, JUDGE:
William F. Brown (Brown) appeals from a
Jefferson Circuit Court memorandum and order entered August 7,
1996, which dismissed Brown's case against the Kentucky Board of
Auctioneers (the Board) and Lavon O'Dell (O'Dell) for lack of
jurisdiction.
We affirm the trial court.
On an unstated date, Brown attended an automobile
auction where O'Dell was the auctioneer and he bid $550 on a 1978
Chrysler Newport which was the highest bid.
Brown was unable to
obtain a title from the seller of the car and he filed a
complaint with the Board against O'Dell regarding the automobile
title.1
The Board conducted a hearing on November 15, 1995, and
found as follows:
[T]his Board has no difficulty in concluding,
the obligation existed for the previous owner
to transfer the vehicle to the complainant.
The Board notes that a possible course of
action for an auctioneer in this sort of
situation is obtaining pre-signed copies of
titles on automobiles to be sold at public
auction so that the auctioneer may see to the
transfer even should the seller change his
mind after the sale. Whether or not this is
prudent is one thing. Whether it is the law
is another. This Board cannot say that
existing law requires any such guaranteed
performance on the part of an auctioneer
licensee. Nor can the auctioneer be held
responsible for the fact that either no
contract or an inadequate contract existed
between the consignor and the consignee in
this sale. In other words while this Board
may feel that this licensee could have done
more to insure that title had passed, as a
matter of law he was not required to
absolutely guarantee that it would. Indeed
if the consignor had lived up to his
obligation the car would have been
transferred.
It does appear that licensee O'Dell erred in
his judgment in aiding and assisting an
1
The Board's record of the proceedings in this case was
never certified to the trial court and we do not have any record
from the administrative proceedings other than the Board's
findings.
-2-
unlicensed person, Mr. Sam Parker, who had
conducted on a regular basis personal
property sales at this auction site and who
did not possess an auction house operator's
license. It should have been apparent to
licensee O'Dell that Mr. Parker should have
been a licensed person and Mr. O'Dell should
have refused to aid and abet this unlicensed
operation in the sale of such private
property. Accordingly the Board does find as
follows:
(1) The licensee violated one or more
provisions of Chapter 330 of the Kentucky
Revised Statutes.
(2) Because we cannot say that the violation
caused the failure of transfer, the Board
cannot attribute this failure to the
auctioneer and therefore no recovery under
the recovery fund can or should be authorized
by this Board.
O'Dell was subsequently fined $200 for the violation of aiding
and abetting a person acting in an unlicensed capacity.
On November 29, 1995, Brown filed suit in Jefferson
Circuit Court against the Board and O'Dell which made several
allegations, one of which was that the Board "failed in its
statutory duty to find in its Findings of Fact and Order, relief
mandated by [Kentucky Revised Statutes] KRS 330.192"2 and that
the trial court had jurisdiction to make a money award pursuant
to KRS 330.192(3).3
Brown demanded a trial de novo, a finding
2
Brown did not state a claim against O'Dell in his
complaint.
3
KRS 330.192(3)(a) and (b) state as follows:
(a) In the event that a licensee is found guilty of
one (1) or more provisions of KRS 330.110 or of
violating one (1) or more of the administrative
(continued...)
-3-
that the Board failed to perform its statutory duties and an
award of $20,000.
The Board claimed that the matter should be
dismissed for lack of jurisdiction.
The Board based this
dismissal motion upon Brown's failure to meet the statutory
requirements which give the circuit court jurisdiction to grant
monetary damages.
O'Dell sought dismissal based upon Brown's
failure to state a claim upon which relief could be granted.
The Jefferson Circuit Court conducted a hearing on
March 18, 1996.
The Board's dismissal motion was included in its
answer and the trial court ordered the Board to file a separate
motion to dismiss and to attach a memorandum of law.
The Board
filed its motion and argued that Brown's demand for monetary
damages under KRS 330.192(3) must fail because Brown did not
comply with the statute in that Brown not prove that O'Dell's
violation caused a monetary loss, Brown failed to file a proof of
3
(...continued)
regulations of the board, and if the amount of the
money lost by the aggrieved party or parties is in
dispute or cannot be determined accurately, then the
amount of damages shall be determined by a Circuit
Court in the county where the alleged violation took
place, provided that the board has previously
determined that a violation of the license laws or of
the administrative regulations has occurred and a final
order has been entered.
(b) If such an order has been entered and the license
rights of the licensee have been finally adjudicated,
then the local Circuit Court shall make a finding as to
the monetary damages growing out of the aforesaid
violation or violations.
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loss form, and Brown failed to exhaust all other remedies.
Brown's one-page response to the motion merely reiterated his
claim that jurisdiction was based upon KRS 330.192.4
7, 1996, the trial court dismissed Brown's case.
On August
The trial court
cited KRS 330.192(3)(a) and (b), supra, then stated as follows:
In the present action, there are no
monetary damages growing out of the violation
found by the Board. In the Findings, the
Board specifically provides that the failure
of the owner of the automobile to transfer it
to Mr. Brown had absolutely no bearing on the
fact that Mr. O'Dell was found to have
violated KRS 330.110(6) in dealing with Mr.
Parker. Thus, this Court has no jurisdiction
as there is no amount of damages which is in
dipute [sic] as a result of the Findings of
the Board.
This appeal followed.
On September 6, Brown filed his notice of appeal which
stated that the appellees were the Board and O'Dell.
Both
appellees filed a motion to dismiss with this Court.
O'Dell
argued that he should be dismissed as a party to the appeal
because "the Judgment and Order appealed from . . . does not
dismiss against the Defendant/Appellee Lavon O'Dell . . . ."
The
Board argued in its motion to dismiss that the trial court's
order was not final and appealable since the trial court did not
dismiss against all parties (referring to O'Dell) as required in
Kentucky Rules of Civil Procedure (CR) 54.02.
4
By order entered
KRS 330.160 clearly outlines the procedure to appeal to
the circuit court when the Board refuses to grant a license or
when it revokes or suspends a license. However, Brown seeks
monetary damages from the Board pursuant to the Auctioneer's
Education, Research and Recovery Fund, KRS 330.192.
-5-
on November 13, 1996, this Court granted O'Dell's motion to
dismiss him as a party to the appeal and denied the Board's
motion to dismiss for lack of finality.
As a preliminary matter,
the Board has requested that this Court reconsider the Board's
motion to dismiss for lack of finality.
The Board argues the dismissal order was nonfinal as
outlined in CR 54.02 which states, in pertinent part, as follows:
(1) . . . when multiple parties are
involved, the court may grant a final
judgment upon one or more but less than all
of the claims or parties only upon a
determination that there is no just reason
for delay. The judgment shall recite such
determination and shall recite that the
judgment is final. In the absence of such
recital, any order or other form of decision,
however designated, which adjudicates less
than all the claims or the rights and
liabilities of less than all the parties
shall not terminate the action as to any of
the claims or parties, and the order or other
form of decision is interlocutory and subject
to revision at any time before the entry of
judgment adjudicating all the claims and the
rights and liabilities of all the parties.
By its very language, CR 54.02 deals with a trial court's
adjudication of rights and liabilities of parties, which
necessarily implies that the trial court has power to adjudicate
those rights.
"Lack of jurisdiction over the subject matter of course
goes to the right of the court to proceed at all in an action
. . . ."
Kentucky Practice, Rules of Civil Procedure Annotated,
Kurt A. Phillips, Rule 12.02, ยง 7(a).
Without subject-matter
jurisdiction, the court does not have the power to adjudicate any
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right or liability of any party.
See Wolfenbarger v.
Commonwealth, Ky.App., 936 S.W.2d 770, 772 (1996), and Gordon v.
NKC Hospital, Inc., Ky., 887 S.W.2d 360, 362 (1994).
In this
case, when the trial court declared that it lacked subject-matter
jurisdiction, it recognized that it did not have the power to
adjudicate any right of any party, i.e., the dismissal of
parties.
We conclude that the trial court's order was final and
appealable and this Court has jurisdiction of this matter.
We must next determine if indeed the trial court lacked
subject-matter jurisdiction.
The issue of jurisdiction is a
question of law and as such the trial court's decision is
reviewed de novo.
The Supreme Court stated as follows regarding
circuit court jurisdiction of administrative appeals:
There is no appeal to the courts from an
action of an administrative agency as a
matter of right.[5] When grace to appeal is
5
Jurisdiction can also obtain pursuant to American
Beauty Homes Corporation v. Louisville and Jefferson County
Planning and Zoning Commission, Ky., 379 S.W.2d 450 (1964).
American Beauty Homes at 456 (emphasis original), the Court
stated:
In
Basically, judicial review of administrative action
is concerned with the question of arbitrariness. On
this ground the courts will assume jurisdiction even in
the absence of statutory authorization of an appeal.
. . .
[These] three grounds of judicial review, (1) action in
excess of granted powers, (2) lack of procedural due
process, and (3) lack of substantial evidentiary
support, effectually delineate [the Court's] necessary
and permissible scope.
(continued...)
-7-
granted by statute, a strict compliance with
its terms is required. Where the conditions
for the exercise of power by a court are not
met, the judicial power is not lawfully
invoked. That is to say, that the court
lacks jurisdiction or has no right to decide
the controversy.
Board of Adjustments of City of Richmond v. Flood, Ky., 581
S.W.2d 1, 2 (1978).
"Where a statute prescribes the method for
taking an appeal from an administrative action and the time in
which the appeal must be taken, these requirements are mandatory
and must be met in order for the circuit court to obtain
jurisdiction to hear the case."
Frisby v. Board of Education of
Boyle County, Ky.App., 707 S.W.2d 359, 361 (1986).
Brown argues that KRS 330.192(3) provides jurisdiction
for the circuit court to determine monetary damages.
KRS
330.192(3) states that the circuit court may determine the amount
of money damages if the damages amount cannot be determined or
are in dispute.
However, the statute also requires that "the
monetary damages grow[] out of the aforesaid violation or
violations." Id. at (b).
Section (c) refers to money "paid to
the aggrieved party due to the violation of the licensee."
The
trial court noted that the Board did not find that O'Dell was
responsible for Brown's monetary loss.
There must be an amount
in dispute due to the violation before a circuit court has
5
(...continued)
However, Brown failed to allege any of the above grounds for
jurisdiction and therefore the circuit court could only obtain
jurisdiction of this case upon Brown's strict statutory
compliance.
-8-
statutory authority to act.
We agree with the trial court that
it had no jurisdiction unless the Board determined that Brown's
damages were caused by O'Dell's violation.
We conclude that the
trial court's dismissal of Brown's claim was proper.6
For the foregoing reasons, we affirm the order of
dismissal of the Jefferson Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Hon. James Henry Brown
Louisville, KY
Hon. Herbert Van Arsdale, II
Louisville, KY
6
Brown also failed to comply with KRS 330.192(3)(f) which
required filing a proof of loss claim within six months of the
damages accruing in order to receive money from the recovery
fund.
-9-
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