PAINTSVILLE MEDICAL BUILDING CORPORATION, A Kentucky Corporation; MADELINE BANGUDI; DR. N'SUNDA BANGUDI V. JULIANNE PERRY; RAMON CHILDERS; and DR. IRA POTTER
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RENDERED:
February 20, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 96-CA-2692-MR
PAINTSVILLE MEDICAL
BUILDING CORPORATION,
A Kentucky Corporation;
MADELINE BANGUDI;
DR. N'SUNDA BANGUDI;
v.
APPELLANTS
APPEAL FROM JOHNSON CIRCUIT COURT
HONORABLE JAMES A. KNIGHT, JUDGE
CIVIL ACTION NO. 89-CI-000430
JULIANNE PERRY;
RAMON CHILDERS; and
DR. IRA POTTER
APPELLEES
OPINION
AFFIRMING
* * * * *
BEFORE:
COMBS, GUIDUGLI and JOHNSON, Judges.
GUIDUGLI, JUDGE.
Paintsville Medical Building Corporation,
Madeline Bangudi, and Dr. N'Sunda Bangudi (collectively referred
to as Paintsville Medical) appeal an order of the Johnson Circuit
Court entered September 18, 1996, which concluded that the
judgment of the court previously entered had been completely and
fully satisfied and that it was not entitled to any additional
interest on the judgment or interest on the interest.
We affirm.
On November 3, 1993, the Johnson Circuit Court entered
findings of fact, conclusions of law and judgment on the original
complaint after a trial on the merits.
An appeal was taken from
said judgment and in an unpublished opinion (93-CA-2849-MR)
rendered December 2, 1994, the Court of Appeals reversed and
remanded the matter to the trial court with specific directions
as to how the issues in controversy should be decided.
The
original complaint sought a declaration of rights as to how
certain assets held by Paintsville Medical should be divided and
to whom the assets should be distributed.
Upon remand to the
circuit court, appellant filed a motion on August 25, 1995,
requesting the court to enter judgment in conformity with the
opinion of the Court of Appeals rendered December 2,1994.
Without further pleadings, the Johnson Circuit Court entered
judgment on November 9, 1995.
In the judgment, the court, in
compliance with the appellate decision, awarded Paintsville
Medical the sums of $17,466.76 and $90,000 plus accumulated
interest in the amount of $27, 978.81 as well as, $10,746.68
pursuant to KRS 26A.300(3) for a total judgment of $146,192.25.
The judgment also included interest at the rate of 12% per annum
from December 4, 1994, until paid.
On November 17, 1995, appellees, Julianne Perry
(Perry), Ramon Childers (Childers), and Dr. Ira Potter (Potter)
filed a pleading entitled "Motion to vacate judgment and enter
new judgment."
The motion was timely field and sought to vacate
the November 9, 1995, judgment as to the $10,746.48 award granted
pursuant to KRS 26A.300(3) and to exclude interest at 12% per
annum from December 4, 1994, since no final judgment had been
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entered at that time.
Thereafter, on January 10, 1996, the court
entered an order which overruled (sic) appellee's motion.
However, in the same order the court granted the plaintiffs
(appellants) ten days in which to submit calculations as to the
interest "contained" in the judgment.
During this period
appellees submitted a document to the court stating the interest
should only be permitted from January 10, 1996.
Appellees also
filed a motion to set aside the order entered January 10, 1996,
arguing that entry of said order should be withheld until the
court makes a determination as to the calculation of interest due
on the judgment.
This motion was overruled (sic) by order of the
court entered January 22, 1996.
In a motion for a rule filed on
February 9, 1996, appellant sought a rule requiring appellees to
pay over to it the sum of $118,155.69 which represented the
amount of judgment plus interest from December 4, 1994, pursuant
to the circuit court's order of November 9, 1995.
Three days later on February 12, 1996, the circuit
court entered an order by which appellees were ordered to pay to
appellant the following sums:
Perry to pay $59,077.85; Childers
to pay $8,480.28; and, Potter to pay $50,597.56.
It was further
order that "interest shall run from January 10, 1996, until
paid... ."
In compliance with the order each appellee tendered
payment (principle and interest from January 10, 1996) to
Paintsville Medical within five (5) days.
The record next indicates that attorney for appellant
filed a motion seeking an order from the court relieving him from
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any further representation of Paintsville Medical.
Although no
order to that effect was entered, the appellant was represented
by new counsel when it filed execution orders with the Floyd
County Sheriff and orders of garnishment with several local
banks.
These orders sought monies totaling $51,097.43
collectively against appellees for sums it claims were still
outstanding [interest on the original judgment [$44,290.03] from
December 4, 1994 and interest on that interest [$6,887.40].
On
July 3, 1996, the trial judge deferred the enforcement of any
garnishment until further order of the court.
Then on September
18, 1996, the court entered its final order which stated that the
court had reviewed all pertinent documents and concluded that
"the Judgment of the Court herein has been completely and fully
satisfied by the Defendants (appellees)", and "that no further
executions or garnishees can be raised."
This appeal followed.
Appellant raises three arguments as to why the judgment
of the Johnson Circuit Court is erroneous and must be reversed.
First, appellant contends that the judgment entered was over
$38,000 shy of what it contends was actually due and owing.
As
such, Paintsville Medical argues that to allow the satisfaction
to stand would permit a fraud to be perpetrated upon the court.
Relying upon the case of Commonwealth, Ex. Rel., Bates, et al v.
Hall, 64 S.W.2d 585 (Ky., 1933), appellant maintains that the
court has the power to correct an erroneously entered
satisfaction, especially, one in which the appellees committed
fraud upon the court.
We can all agree with that proposition.
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However, Bates and the case sub judice are clearly
distinguishable.
In Bates the court found that the trial court
had jurisdiction to correct an "improper and wrongful entry of
satisfaction" which had been "wrongfully secured from her
[appellant] through appellee's threats of violence, fraud and
duress."
This is not the case before the Court.
The
satisfaction entered herein by the trial court was based upon the
court's determination of when the judgment became final and not a
product of any fraudulent or malevolent actions by appellees.
This argument by appellant is meritless.
The next issue raised by appellant is a claim that it
was actually entitled to interest from the date of the original
judgment of the circuit court on November 3, 1993.
That judgment
and order provided that funds of Paintsville Medical were to be
distributed to Perry, Potter and Childers in varying amounts.
As
previously stated, that decision was reversed and remanded with
specific directions which led to the judgment entered in this
matter that appellees owed the sum of $118,155.69 to appellant.
The judgment entered in favor of appellant was not entered until
November 9, 1995, and to argue that Paintsville Medical was
entitled to interest prior to that date is contrary to statutory
and case law, and therefore, need not be addressed further.
Finally, appellant claims that under the doctrine of
"res judicata" the judgment entered November 9, 1995, became
final when the trial court overruled (sic) appellees' motion to
vacate the judgment and since the order was not appealed, it
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became final.
A judgment which is not appealed within the
statutory time becomes a final judgment and is binding upon the
parties.
Turner v. Ewald, Ky., 162 S.W.2d 181 (1942).
disagree with the law as set forth by appellant.
We do not
The real issue
of this case is when did the judgment of the trial court became
final.
Appellant argues that it became final on January 10,
1996.
Appellees contend that the final order was entered on
February 12, 1996.
The difference is that the January 10, 1996,
order would relate back to the November 9, 1995, order which
provided for interest on the judgment from December 4, 1994,
while the February 12, 1996, order determined interest to run
only from January 10, 1996.
A decision as to on which order is
controlling is the determinative factor of the case and results
in the amount of interest claimed by appellant.
CR 54.01 defines a judgment to be "a written order of a
court adjudicating a claim or claims in an action or proceeding.
A final or appealable judgment is a final order adjudicating all
the rights of all the parties in an action or proceeding, or a
judgment made final under Rule 54.02."
CR 54.02 applies to
judgments in cases involving multiple claims or multiple parties,
as we have in this case.
Under CR 54.02 "any order or other form
of decision, however designated, which adjudicates less than all
the claims or the rights and liabilities of less then all the
parties shall not terminate the action as to any of the claims or
parties."
The order does not become final and appealable until
all the claims are adjudicated unless certain specific conditions
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have occurred and the court specifically states that the order is
final and appealable and that there is no just reason for delay.
In this case the November 9, 1995, order adjudicated
all the claims and rights and liabilities of all the parties.
was final.
It
However, appellees timely filed a CR 59.05 motion to
vacate the previous order and enter a new judgment.
timely filed, stayed the action.
The motion,
Thereafter on January 10, 1996,
the trial court overruled (sic) appellant's motion but retained
jurisdiction over the matter as it related to the calculations of
interest on the judgment.
Since all the claims were not
resolved, this order, pursuant to CR 54.01 and CR 54.02, was not
final.
The trial court then, after receiving additional
information from the parties, entered its February 12, 1996,
order.
In that order the court resolved all the issues presented
in the original complaint.
Specifically, the court directed how
much was owed by each of the appellees and that interest would
run from January 10, 1996.
Since this order resolved all the
issues presented to the trial court it, was final.
Neither party
filed any additional motions which would stay or delay its
finality.
Security Federal Sav. & Loan Ass'n. v. Nesler, Ky.,
697 S.W.2d 136 (1985).
Appellees promptly complied with the
order and made full payment of all monies due under the order to
appellant.
The fact that the court entertained additional motions
as to the garnishments filed by appellant and subsequently
entered its September 18, 1996, order stating that the judgment
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had been completely and fully satisfied does not diminish the
finality of the February 12, 1996, order.
Nesler, Id.; Turner,
supra.
For the foregoing reasons, the judgment of the Johnson
Circuit Court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES:
Lawrence R. Webster
Pikeville, KY
Jerry A. Patton
Prestonsburg, KY
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