CLARENCE COYLE AND ARCHIE KIMBLE v. DOUGLAS RICE AND DAVID RICE
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RENDERED: November 22, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000828-MR
CLARENCE COYLE AND
ARCHIE KIMBLE
APPELLANTS
APPEAL FROM CASEY CIRCUIT COURT
HONORABLE JAMES G. WEDDLE, JUDGE
ACTION NO. 94-CI-00199
v.
DOUGLAS RICE AND
DAVID RICE
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, COMBS, AND DYCHE, JUDGES.
DYCHE, JUDGE:
This appeal is prosecuted from an order of the
Casey Circuit Court assessing “damages in the form of court
costs, expenses of litigation and attorney’s fees to be awarded
to” appellees, Douglas and David Rice.
These money damages were
to compensate the Rices for the injury they suffered as a result
of appellants’ wrongful use of civil proceedings, and pursuant to
Kentucky Rule of Civil Procedure (“CR”) 11.
We affirm.
We will not engage in a detailed recitation of this
lengthy litigation, other than to say that it has been
acrimonious and drawn out.
The center of the dispute is the
possession of real estate.
A 1991 quiet title action filed by
Coyle alone was dismissed for failure to comply with discovery
orders in 1994.
Shortly thereafter, the present action was
begun, again disputing the Rices’ title.
The Rices filed a
counterclaim alleging wrongful use of civil proceedings.
Appellants did not file a reply to the counterclaim.
The trial court, after lengthy attempts at discovery of
appellants’ claims, found that both Coyle and Kimble had utterly
failed to show any validity whatsoever to their claims, and
dismissed each of the claims with prejudice.
In the same order,
the trial court found that Coyle and Kimble had also “totally
failed to demonstrate that they could have made reasonable
inquiry or investigation or had any reasonable basis for
commencing or continuing to maintain this action against Rice.”
This finding of a violation of CR 11, together with the default
on the counterclaim, was the basis for the trial court’s judgment
against appellants.
A non-jury trial to set damages was
scheduled.
This order was made final under CR 54.02, and Coyle and
Kimble filed an appeal, which was dismissed on January 25, 1999,
when they failed to file a brief.
On February 4, 1999, the Rices
filed a motion styled “Motion for Allowance of Court Costs,
Expenses of Litigation and Attorney’s Fees.”
Appellants filed a
response to the motion, and on March 4, 1999, the trial court
entered an order allowing court costs, but denying all other
damages.
On March 11, 1999, the Rices filed a CR 59.05 motion to
alter, amend, or vacate that order and to award damages in
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accordance with the May 13, 1998, final order finding liability
against appellants, but withholding the amount of damages.
For some reason, that motion lay dormant until the
Rices renewed the motion on February 8, 2000.
At that time the
trial judge who had entered all the orders to that point had
retired, and a new judge was on the bench.
On February 28, 2000,
the new judge entered the present order appealed from; that order
recognized the finality of the order finding liability, and
indicated that it had considered the record, including the
affidavits of counsel and exhibits thereto, and the affidavits of
the Rices’ surveyor.
The order indicated that the court found
that the appropriate measure of damages for appellants’ conduct
was the entire amount of the fees and costs claimed.
This appeal
followed.
Appellants first argue that the CR 59.05 motion was not
timely filed.
This is simply not so; we understand that this
misstatement might have occurred due to the record not being
complete when appellants’ brief was filed, and attribute no ill
motive to the error.
Coyle and Kimble next argue that there was no basis for
the trial court to reconsider the March 4, 1999, order.
disagree.
We
The final order of May 13, 1998, reserved the issue of
damages for appellants’ wrongful use of legal process and CR 11
violation.
This motion was merely a way to get a proper hearing
on that issue.
Appellants argue that the trial court’s finding of CR
11 violation is clearly erroneous.
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We find no error, clear or
otherwise, and disagree.
The trial court had lived with this
litigation for several years.
It was familiar with the state of
the record and the proof, or lack thereof, presented by each
party.
It knew how forthcoming each party had been with
discovery and the production of requested and ordered documents.
It was in the best place to make this judgment.
We have examined
the record and can find no error.
The same is true with regard to the amount of damages
awarded by the trial court.
Considering the size of the record,
the time spent in defense of this groundless litigation, and the
conduct of the parties, we find no error or abuse of discretion
in the amount of damages awarded to the Rices.
The order of the Casey Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES:
Matthew B. Troutman
Louisville, Kentucky
Jerry L. Foster
Liberty, Kentucky
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