AWS COMPANY, INC. v. ARMCO STEEL COMPANY, L.P.
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RENDERED: April 16, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000669-MR
AWS COMPANY, INC.
v.
APPELLANT
APPEAL FROM BOYD CIRCUIT COURT
HONORABLE LEWIS D. NICHOLLS, SPECIAL JUDGE
ACTION NO. 92-CI-000131
ARMCO STEEL COMPANY, L.P.
(NOW A.K. STEEL CORPORATION)
APPELLEE
OPINION
DISMISSING
** ** ** ** **
BEFORE:
JOHNSON, KNOX, SCHRODER, JUDGES.
KNOX, JUDGE:
AWS Company, Inc. (AWS) appeals an order of the
Boyd Circuit Court denying its CR 60.02(b) motion to vacate and
set aside a previous order of that court denying CR 60.02(d)
relief from a summary judgment in favor of appellee, AK Steel
Company, Inc. (f/k/a ARMCO Steel Company, L.P.).
The trial court, on October 1, 1992, granted summary
judgment in favor of AK Steel with respect to AWS’s claims of
breach of contract (the Golf Course Project).
The trial court
found there was no meeting of the minds as to the termination
provision in the contract, concluding any alleged contract would
be unenforceable under Kentucky’s Statute of Frauds in that it
could not be performed within one (1) year.
AWS appealed, and
this Court affirmed the trial court’s summary judgment on the
ground that there was no meeting of the minds on an essential
term of the contract, namely the termination provision.1
In July 1995, AWS retained its current counsel for the
purpose of pursuing the remaining claims not dismissed by summary
judgment.
While reviewing the record, AWS’s new counsel formed
the opinion that by way of a revised memorandum supporting its
motion for summary judgment, AK Steel had made serious
misrepresentations of fact upon which the trial court had relied
in granting summary judgment on the Golf Course Project.
Consequently, on January 5, 1996, AWS filed a CR 60.02(d) motion
to vacate and set aside the trial court’s order, alleging AK
Steel had engaged in fraud affecting the proceedings.
On October 16, 1996, the trial court2 entered its order
denying AWS CR 60.02(d) relief.
The court explained that AWS had
failed to establish clear and convincing evidence of fraud.
Again, AWS appealed and this Court affirmed.3
In September 1997, while conducting discovery in the
remaining contract claim, AWS received a typewritten document, on
the letterhead of ARMCO Steel Company, styled “Minutes of
ARMCO/AWS Meeting 1/3/93.”
On November 17, 1997, while the prior
1
AWS Co., Inc. v. ARMCO Steel Co., L.P., 92-CA-002673-MR,
rendered December 17, 1993.
2
Judge Asbury in the Boyd Circuit Court recused himself and
Judge Lewis D. Nicholls of the 20th Judicial Circuit was
appointed Special Judge on March 22, 1996.
3
AWS Company, Inc. v. ARMCO Steel Company, L.P. Now AK
Steel Corporation, 96-CA-3037-MR, rendered June 26, 1998.
-2-
CR 60.02(d) appeal remained pending, AWS filed another motion,
this time pursuant to CR 60.02(b),4 to vacate the order of
October 16, 1996.
AWS claimed this typewritten document
constituted newly discovered evidence warranting CR 60.02(b)
relief, as it would prove AK Steel perpetrated fraud, hence, its
CR 60.02(d) motion should have been granted.
The trial court’s
order denying CR 60.02(b) relief was entered on March 6, 1998.
While AWS’s argument is without merit and procedurally
flawed as to proper application of CR 60.02, we need not address
it.
CR 60.02 empowers the trial court to relieve a party from a
final judgment on seven (7) separate and independent bases,
including “newly discovered evidence,” under subsection (b).
However, the rule further provides:
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.
The record reflects the order from which AWS sought CR
60.02(b) relief is that of October 16, 1996, denying its prior CR
60.02(d) request.
The 60.02(b) motion to set aside the order was
filed on November 17, 1997, some thirteen (13) months following
entry of that judgment.
The one-year limitation contained in CR
60.02 having expired, the court was without jurisdiction to
modify the original order.
Cline v. Cline, Ky., 324 S.W.2d 390
(1959); Copley v. Whitaker, Ky. App., 609 S.W.2d 940 (1980).
4
On January 16, 1998, this Court entered an order of
abatement for a period of sixty (60) days to allow the trial
court to rule on the CR 60.02(b) motion.
-3-
While we are mindful the untimely nature of AWS’s CR
60.02(b) motion was never brought before the circuit court, it
has been held that a court, on its own initiative, should dismiss
an action for lack of jurisdiction despite the failure of
opposing counsel to discover the defect and raise it by motion.
White v. Commonwealth, Ky., 481 S.W.2d 656 (1972).
Moreover, our
Supreme Court has opined:
When the facts reveal a fundamental basis for
decision not presented by the parties, it is
our duty to address the issue to avoid a
misleading application of the law. This is
such a case.
Mitchell v. Hadl, Ky., 816 S.W.2d 183, 185 (1991).
It is our opinion the circuit court lost jurisdiction
of the case when the CR 60.02(b) motion was not brought within
the one-year statute of limitation set forth in our Rules of
Civil Procedure.
In that the circuit court lacked jurisdiction
to entertain the motion, its judgment on the matter is void.
Accordingly, “[w]e dismiss the appeal[] sua sponte upon the
ground that there is no valid judgment from which an appeal can
be taken.”
White, 481 S.W.2d at 656; See also Cann v. Howard,
Ky. App., 850 S.W.2d 57, 58 (1993) (holding sua sponte that the
trial court lacked subject matter jurisdiction).
For the foregoing reasons the appeal from the Boyd
Circuit Court’s order denying AWS CR 60.02(b) relief
is
dismissed.
SCHRODER, JUDGE, CONCURS.
JOHNSON, JUDGE, DISSENTS AND FILES A SEPARATE OPINION.
-4-
JOHNSON, JUDGE, DISSENTING.
I respectfully dissent.
Based on the information that is before the Court, I am inclined
to agree with the position taken by the Majority Opinion.
However, I cannot agree to this ruling without the benefit of
additional input from the parties.
Since this Court has sua
sponte raised the purportedly dispositive issue of the lack of
timeliness of the CR 60.02(b) motion, I would allow the parties
the opportunity to file supplemental briefs.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Anthony P. Tokarz
Lexington, Kentucky
Carl D. Edwards, Jr.
Kimberly S. McCann
W. Mitchell Hall, Jr.
Ashland, Kentucky
-5-
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