ABDALLAH BADOUAN ON REMAND OF KENTUCKY v. LEXINGTON-FAYETTE URBAN COUNTY HOUSING AUTHORITY
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RENDERED:
OCTOBER 17, 2003; 10:00 A.M.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
NO.
2000-CA-001227-MR
AND
2001-CA-000416-MR
ABDALLAH BADOUAN
APPELLANT
ON REMAND FROM SUPREME COURT OF KENTUCKY
2002-SC-000613-DG
v.
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE SHEILA R. ISAAC, JUDGE
ACTION NO. 98-CI-04058
LEXINGTON-FAYETTE URBAN
COUNTY HOUSING AUTHORITY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, KNOPF AND SCHRODER, JUDGES.
BUCKINGHAM, JUDGE: Abdallah Badouan appealed from orders of the
Fayette Circuit Court denying his two CR1 60.02 motions.
In an
opinion rendered on July 12, 2002, this court affirmed the
circuit court’s orders.
On March 12, 2003, the Kentucky Supreme
Court granted discretionary review, vacated our decision, and
remanded the case for our further consideration in light of
Kurtsinger v. Board of Trustees of Kentucky Retirement Systems,
1
Kentucky Rules of Civil Procedure.
Ky., 90 S.W.3d 454 (2002).
Having given further consideration in
light of that case, we again affirm.
In 1997 the Lexington-Fayette Urban County Housing
Authority determined that the acquisition of property on the
north side of Lexington, Kentucky, near Charlotte Court and
Georgetown Street was necessary for housing projects in the area.
The property being considered for condemnation proceedings
included Westside Plaza, business premises owned by Badouan.
The
area had fallen into general disrepair and had become a haven for
criminal activity.
The Housing Authority sought to acquire the property
for additional low-income housing.
After unsuccessful efforts to
negotiate a purchase of Badouan=s property, the Housing Authority
requested authority to condemn it.
Lexington-Fayette Urban
County Government (LFUCG) granted such authority.
On November
13, 1998, the Housing Authority filed a petition for condemnation
in the Fayette Circuit Court.
See KRS2 416.570.
On March 31, 1999, the circuit court conducted a
hearing concerning the Housing Authority’s right to condemn
Badouan=s property.
The hearing led to the entry of an
Interlocutory Order and Judgment on April 8, 1999.
416.610.
See KRS
The Interlocutory Order and Judgment determined that
the Housing Authority had the right to condemn the property, set
the value of the property for compensation purposes at $277,100
2
Kentucky Revised Statutes.
2
in accordance with the report of the commissioners, and stated
that the Housing Authority=s purpose in taking the property was
to provide low-cost housing.
The order also stated that
exceptions to the value to be paid as compensation must be filed
within 30 days of the order.
See KRS 416.620.
On April 16, 1999, Badouan moved the court for
additional findings and to alter, amend, or vacate the
Interlocutory Order and Judgment.
to CR 52.02 and CR 59.05.
The motion was filed pursuant
A hearing on the motion was held
before the court on April 23, 1999.
The court orally denied the
motion following the hearing and directed the Housing Authority=s
attorney to draft an order to that effect.
Badouan was
represented at the hearing by his attorney, Jerry Anderson, who
was present when the court denied the motion and directed the
Housing Authority=s attorney to draft the order.
When the order was submitted to the judge for
signature, the clerk=s certificate attached to the order did not
list Anderson=s name as a person to receive a copy of the order.
Rather, the clerk=s certificate stated that a copy of the order
was sent to Nader Shunnarah, Badouan=s original attorney, who was
still Badouan’s attorney of record.3
Furthermore, the order had
not been sent by the Housing Authority=s attorney to Anderson for
his review as required by the local rules of the Fayette Circuit
Court.
The order was signed by the judge on April 29, 1999, and
3
The record did not reflect that Shunnarah had withdrawn as Badouan=s
attorney, although Shunnarah was not present at the April 23, 1999,
3
was entered by the clerk on April 30, 1999.
The clerk=s
certificate of service was also dated April 30, 1999.
On September 29, 1999, the court entered an order
allowing the Housing Authority to take possession of the
property.
On the following day, September 30, 1999, Badouan
filed exceptions to the April 8, 1999, Interlocutory Order and
Judgment.
The exceptions were obviously not filed within 30 days
of the entry of the Interlocutory Order as required by KRS4
416.620(1).
No further action was taken in the case until the
Housing Authority filed a motion for a final judgment on February
8, 2000.
The court granted the motion and entered a final
judgment on February 18, 2000.
On February 28, 2000, Badouan filed a motion to alter,
amend, or vacate the February 18, 2000, judgment.
Further, on
March 6, 2000, Badouan filed a motion pursuant to CR 60.02(d)
alleging fraud affecting the proceedings and asking the court to
vacate its April 30, 1999, order and its February 18, 2000, final
judgment.
In his CR 60.02 motion, Badouan argued that he was
entitled to relief because Anderson=s name was intentionally
omitted on the clerk=s certificate on the April 30, 1999, order
and that the Housing Authority did not follow the local rules by
tendering a copy of the order to Anderson for his review prior to
its entry by the court.
hearing and apparently no longer represented Badouan at that time.
4
Kentucky Revised Statutes.
4
On March 27, 2000, the court entered an order denying
Badouan=s CR 59 and CR 60.02 motions.
On April 5, 2000, Badouan
filed a motion pursuant to CR 52.04 and CR 59, seeking to have
the court make additional findings of fact and to amend its order
denying his CR 60.02 motion.
In an order entered on May 1, 2000,
the circuit court denied Badouan’s motions.
Badouan then filed a
notice of appeal on May 16, 2000.
Before Badouan=s second CR 60.02 motion was filed, the
Housing Authority filed a motion to dismiss Badouan=s appeal from
the order denying his first CR 60.02 motion for failure to timely
file a notice of appeal.
This court granted the motion by an
order entered on October 11, 2000.
However, after Badouan moved
this court to reconsider, the appeal was reinstated for this
panel to consider.
We conclude that the notice of appeal from
the denial of Badouan=s first CR 60.02 motion was timely filed.
The order denying the motion was entered on March 27, 2000.
Badouan=s CR 59 motion was filed on April 5, 2000, and was denied
by the trial court on May 1, 2000. The notice of appeal was filed
on May 16, 2000.
Since the filing of the CR 59 motion tolled the
time for filing a notice of appeal until May 1, 2000, the notice
of appeal was timely filed.
See CR 73.02(1)(e); University of
Louisville v. Isert, Ky. App., 742 S.W.2d 571, 573-74 (1987).
Badouan=s second CR 60.02 motion was filed on February
12, 2001.
Therein, he argued that he was entitled to relief from
the court=s orders and judgment because the court lacked subjectmatter jurisdiction of the case, false testimony regarding the
5
purpose of condemnation had been given, and additional evidence
that he was entitled to a jury trial on the amount to be paid for
the property had been discovered.
On February 26, 2001, the
court entered an order denying the second CR 60.02 motion.
Badouan filed a notice of appeal to this court on February 27,
2001.
The two appeals have now been consolidated.
Addressing Badouan=s appeal of the circuit court=s
denial of his initial CR 60.02 motion first, we conclude that the
circuit court did not err.
Badouan=s first CR 60.02 motion was
filed under section (d) of the rule.
That section allows relief
for Afraud affecting the proceedings, other than perjury or
falsified evidence.@
CR 60.02(d).
Badouan argues that he is
entitled to relief due to fraud committed on him by the Housing
Authority not including Anderson=s name on the clerk=s certificate
of service and in not complying with the local rules by sending a
copy of the order to Anderson for his review prior to entry by
the court.
Badouan did not claim in either his CR 60.02 motion
or in his brief that he would have filed an appeal from the
Interlocutory Order and Judgment; rather, he claims he would have
timely filed exceptions relating to the compensation amount but
for the Housing Authority=s fraud.
By way of this CR 60.02 motion, Badouan sought the
right to file exceptions to the Interlocutory Order and Judgment
so that he could have a jury trial to determine compensation for
the taking of his property.
See KRS 416.620(1).
What Badouan
ignores, however, is the fact that his lack of knowledge of the
6
entry of the order overruling his CR 52 and CR 59 motion in no
way affected the mandatory requirement of KRS 416.620(1) that
exceptions from the interlocutory order be filed within 30 days
of the date of the entry of that order.
While the filing of the
CR 52 and CR 59 motion by Badouan may have tolled the time for
his filing a notice of appeal of the interlocutory order, it did
not toll the time for filing exceptions to that order.5
Furthermore, the language of KRS 416.620 mandates that if no
exceptions are filed within 30 days from the entry of the
interlocutory order, Athe circuit court shall make such orders as
may be proper for the conveyance of the title to the extent
condemned, to the property, and shall enter such final judgment
as may be appropriate.@ [Emphasis added.]
In short, upon entry
of the Interlocutory Order and Judgment on April 8, 1999, Badouan
had 30 days in which to file exceptions, regardless of whether he
also chose to file a CR 52 and CR 59 motion.
See Kentucky
Utilities Co. v. Brashear, Ky. App., 726 S.W.2d 321, 323 (1987).
Having held that Badouan was required to file
exceptions to the Interlocutory Order and Judgment within 30 days
of April 8, 1999, regardless of whether he filed a CR 59 motion
and regardless of whether he was given notice of the court’s
denial of that motion, we now turn to the recent Kurtsinger case
upon which the Kentucky Supreme Court remanded this case for our
5
Badouan asserts that in Hagg v. Ky. Utilities Co., Ky. App., 660
S.W.2d 680 (1983), the court held that a timely CR 59 motion tolls the
time to appeal an interlocutory judgment and for filing exceptions.
The case clearly does not hold that the time for filing exceptions is
tolled by a CR 59 motion.
7
consideration.
In that case the Kentucky Supreme Court reversed
an opinion of this court and affirmed the trial court’s order
granting a CR 60.02 motion which vacated an order denying CR 59
relief because the party seeking CR 59 relief was not served a
copy of the order denying the motion due to an error in the
judge’s office.
The court noted that “CR 60.02 addresses itself
to the broad discretion of the trial court” and that the granting
of the CR 60.02 motion did not constitute an abuse of discretion.
Id. at 456-57.
Further, the court distinguished Stewart v.
Kentucky Lottery Corp., Ky. App., 986 S.W.2d 918 (1998).
We conclude that the circuit court did not abuse its
discretion in denying CR 60.02 relief in the case sub judice.
As
we have noted, Badouan’s first CR 60.02 motion sought relief in
the form of having the April 30, 1999, order vacated and being
allowed to file exceptions to the commissioners’ award and to
have a trial on the issue of compensation.
As we explained
earlier in this opinion, Badouan was required to file exceptions
within 30 days of the entry of the Interlocutory Order and
Judgment on April 8, 1999, and his failure to do so preclude his
right to challenge the amount of the commissioners’ award.
Again, we are unpersuaded by his argument that the filing of a CR
59 motion tolled the time for filing exceptions.
Furthermore, we conclude that the trial court did not
abuse its discretion in denying CR 60.02 relief because the facts
of this case are different from the facts in Kurtsinger.
In
Kurtsinger the failure to receive a copy of the order denying CR
8
59 relief was caused by a mistake in the judge’s office.
In this
case, however, the attorney who represented Badouan at the
hearing on the CR 59 motion had not entered an appearance of
record and Badouan’s first attorney had not moved to withdraw as
counsel of record.
The circuit court found no evidence of fraud,
and it is understandable that the clerk’s certificate of service
would direct that copies be sent to Badouan’s attorney of record
rather than his second attorney.
In other words, just as the
Kentucky Supreme Court found no abuse of discretion in the trial
court’s granting of CR 60.02 relief in Kurtsinger, we find no
abuse of discretion in the trial court’s denial of Cr 60.02
relief in this case.
By way of his second CR 60.02 motion, Badouan also
sought a trial on the issue of compensation.
The first argument
raised in his motion, which he also raises in this appeal, was
that the trial court=s judgment should be set aside because the
court lacked subject-matter jurisdiction to grant a judgment of
condemnation to the Housing Authority.
Badouan argues that the
Housing Authority was not a party authorized by KRS 416.560 to
initiate a condemnation action.
In Privett v. Clendenin, Ky., 52 S.W.3d 530 (2001), the
Kentucky Supreme Court described the principles surrounding
subject-matter jurisdiction and a party=s claim that a court
lacked it.
The Privett court stated, ASubject-matter
jurisdiction refers to a court=s authority to determine >this kind
of case= as opposed to >this case.=@ Id. at 532.
9
Furthermore, the
court held that A[d]efects in subject-matter jurisdiction may be
raised by the parties or the court at any time and cannot be
waived.@
Id.
In fact, the court noted that Asubject-matter
jurisdiction may be raised for the first time on appeal.@
Id.
Also, we note that the circuit court is a court of general
jurisdiction having original jurisdiction of all justiciable
causes not exclusively vested in some other court.
23A.010(1).
KRS
Thus, the question is whether a court, other than
the circuit court, was vested with subject-matter jurisdiction to
determine Athis kind of case@ - a condemnation case.
The Eminent Domain Act of Kentucky requires that the
condemnor file a petition in the circuit court of the county in
which the property is located.
KRS 416.570.
Furthermore,
condemning property for the purpose of constructing low-cost
housing requires that proceedings for condemnation be instituted
in the circuit court of the county in which the property lies.
KRS 80.150.
Badouan=s property lies in Fayette County, Kentucky,
and the Housing Authority filed the condemnation petition in the
Fayette Circuit Court.
Based upon the clear language of the
statutes, the Fayette Circuit Court had subject-matter
jurisdiction to hear Athis kind of case.@
Thus, the orders and
judgment of the Fayette Circuit Court were not void for lack of
subject-matter jurisdiction.
Although the Fayette Circuit Court had jurisdiction to
hear Athis kind of case,@ Badouan=s subject-matter jurisdiction
argument hinges on the assertion that the Housing Authority
10
violated the Eminent Domain Act of Kentucky when it initiated the
condemnation proceeding in its own name.
Badouan asserts that
KRS 416.560 requires the Housing Authority to have the proceeding
initiated by the LFUCG in its behalf.
The statute reads as
follows:
Notwithstanding any other provision of the
law, a department, instrumentality or agency
of city, county, or urban-county government,
other than a waterworks corporation the
capital stock of which is wholly owned by a
city of the first class, having a right of
eminent domain under other statutes shall
exercise such right only by requesting the
governing body of the city, county, or urbancounty to institute condemnation proceedings
on its behalf. If the governing body of the
city, county, or urban-county agrees, it
shall institute such proceedings under KRS
416.570, and all costs involved in the
condemnation shall be borne by the
department, instrumentality, or agency
requesting the condemnation.
KRS 416.560(1).
On the other hand, the Housing Authority argues that it
properly initiated the condemnation proceeding without urbancounty government assistance.
It relies upon the following
statute:
If it becomes necessary to condemn property
for the purpose of constructing any lowcost housing, or securing rights of way
leading thereto, the authority may, by
resolution reciting the need, order the
condemnation of any land or improvement or
interest in land, that it deems necessary.
Proceedings for the condemnation shall be
in the circuit court of the county in which
the property lies, and shall be conducted
in the name of the authority. The city
attorney shall conduct the proceedings, for
the authority. The judgment of the court
11
shall vest title in fee simple to the
property condemned in the authority. In
all other respects the form and manner of
the proceedings shall be the same as that
provided in the Eminent Domain Act of
Kentucky.
KRS 80.150.
We agree with the Housing Authority that it properly
initiated the condemnation proceeding under that statute rather
than having the action initiated by the LFUCG under KRS
416.560(1).
It is presumed that the legislature is aware of all
laws existing at the time it enacts a new law and that it would
not enact a new law in conflict with existing laws.
v. Commonwealth, Ky., 922 S.W.2d 380, 381 (1996).
Brewer
Furthermore,
the Kentucky Supreme Court stated in Commonwealth v. Phon, Ky.,
17 S.W.3d 106 (2000), as follows:
When there appears to be a conflict
between two statutes, as here, a general
rule of statutory construction mandates
that the specific provision take
precedence over the general. Moreover, it
is the Court=s duty to harmonize the law so
as to give effect to both statutes.
Finally, statutes should be construed in
such a way that they do not become
meaningless or ineffectual. [Footnotes
omitted.]
Id. at 107-08.
Were we to determine that the Housing Authority had to
proceed through the LFUCG under KRS 416.560(1), the portion of
KRS 80.150 which allows the Housing Authority to proceed in its
own name would be rendered ineffectual.
In short, KRS 416.560(1)
governs the initiation of a condemnation procedure as it relates
12
to entities in general, while KRS 80.150 sets out the procedure
as it relates to housing authorities specifically.
According to
the clear language of KRS 80.150, the Eminent Domain Act of
Kentucky is applicable except to the extent stated in KRS 80.150.
The statutes are reconciled in this manner.
Also, Badouan cites Petrey v. Cain, Ky., 987 S.W.2d 786
(1999), to support his argument that the circuit court did not
have subject-matter jurisdiction because the action was not
instituted by the LFUCG in accordance with KRS 416.560.
In
Petrey, the Kentucky Supreme Court held that the circuit court
did not have subject-matter jurisdiction over a motion to modify
child custody because the movant did not file at least two
supporting affidavits as required by statute.
Id. at 788.
However, the facts of the case sub judice as more closely related
to those in Underwood v. Underwood, Ky. App., 999 S.W.2d 716
(1999).
As in Underwood, the failure of the plaintiff to satisfy
statutory requirements for bringing the suit did not affect the
subject-matter jurisdiction of the court.
Id. at 720.
Furthermore, Kentucky Unemployment Ins. Com=n v. Providian Agency
Group, Inc., Ky. App., 981 S.W.2d 138 (1998), cited by Badouan in
his reply brief, lends no support to his argument.
In the case
sub judice, the alleged failure to meet the statutory requirement
did not affect the power of the court to exercise jurisdiction
over the case.
In the second argument of his second CR 60.02 motion,
Badouan claimed to have discovered Anew evidence@ showing that
13
the Housing Authority agreed to a jury trial on the value of the
property.
He claimed that the Housing Authority conducted
settlement negotiations with him after the court entered its
April 8 and April 30, 1999, orders and that the Housing Authority
agreed to allow a jury trial even though exceptions were not
timely filed.
In addition, Badouan claimed that he paid $2,000
for an appraisal which indicated that the value of his property
was approximately $500,000 to $550,000 rather than the $277,100
recommended by the commissioners.
In support of his argument that the Housing Authority
agreed to a trial, Badouan pointed to a letter and a chart sent
to the Department for Housing and Urban Development (HUD) by
Austin Simms, the Housing Authority director.6
The first letter
was written in July 1999, and it states in pertinent part as
follows:
The LHA has received an Interlocutory Order
and Judgment that approves condemnation of
this site and permits the Authority to take
possession of this property upon payment of
the Commissioner=s award of $277,100. It is
understood that future legal proceedings and
negotiations may occur that will increase the
purchase price.
Badouan claimed that the reference to Afuture legal proceedings
and negotiations@ that Awill increase the purchase price@
illustrated the existence of an agreement to conduct a jury trial
on the issue of compensation.
6
The letter and chart arose from discovery conducted by different
attorneys in a separate condemnation proceeding against other
property. Badouan acquired copies of the letters and a deposition of
Simms and attached them to his second CR 60.02 motion.
14
As additional support for his argument, Badouan pointed
to a chart contained in a letter Simms sent to Cindi Demitros, a
grant=s manager for HUD.
The chart listed Aapproximate costs@ of
an AOff-Site Acquisition Plan.@
For Westside Plaza, the chart
indicated Aapproximate costs@ of $500,000 - $550,000.
Badouan
claimed this illustrated the existence of an agreement to conduct
a valuation hearing and the existence of the Housing Authority=s
expectation that the purchase price would be $500,000 $550,000.7
AGiven the high standard for granting a CR 60.02
motion, the trial court=s ruling on the motion receives great
deference on appeal and will not be overturned except for an
abuse of discretion.@
98, 102 (1998).
Barnett v. Commonwealth, Ky., 979 S.W.2d
While it is true that the Housing Authority may
have conducted negotiations with Badouan after the expiration of
the time for him to file exceptions, we see little evidence that
there was an agreement by the Housing Authority that it would
agree to a jury trial to determine the value of the property.
In
fact, Simms= letter of July 1999 to HUD stated that future legal
proceedings and negotiations Amay occur.@
At any rate, it does
not appear that such an agreement was proved with reasonable
certainty.
See Brown v. Brown, Ky., 796 S.W.2d 5, 8 (1990).
In
short, we conclude that the trial court did not abuse its
7
However, the Aapproximate costs@ may be the estimated total cost of
acquiring the property including items of cost other than the value of
the property. For example, costs incurred to relocate businesses
operating in Westside Plaza as well as to eliminate environmental
contamination might be included in the estimate.
15
discretion in refusing to grant Badouan=s second CR 60.02 motion
on the asserted ground of new evidence.
In the final argument of his second CR 60.02 motion,
Badouan argued that the reason the Housing Authority stated for
condemning the property was not its real reason for doing so.
At
the initial condemnation hearing on March 31, 1999, Simms
testified that the condemnation of Westside Plaza was for the
purpose of low-income housing.
Badouan argued in his CR 60.02
motion that the real reason for condemnation was urban renewal, a
purpose for which a housing authority does not have power to
condemn property.
According to Badouan, Simms= deposition taken
on August 3, 2000, indicates that Simms admitted that the real
reason for condemnation of Westside Plaza was urban renewal.
Badouan argued that Simms= testimony at the initial condemnation
hearing therefore constituted perjury or falsified evidence.
See
CR 60.02(c).
Badouan failed in his brief to this court to direct us
to the portion of the Simms= deposition where Simms supposedly
stated that the Areal reason@ for condemnation was urban renewal.
We have reviewed that deposition and note that Simms directed
attention to the July 1999 letter he wrote to HUD.
Simms stated
in the deposition that Aacquisition of this site and the
redevelopment as low-income elderly public housing duplexes is an
integral part of the Charlotte Court Hope VI redevelopment
project.@
Further, the specific question and answer segment of
the deposition cited by Badouan as contradictory to Simms=
16
testimony before the circuit court did not relate to Westside
Plaza but to other property (Lincoln Terrace).
In short, we
conclude that the trial court did not abuse its discretion in
refusing to grant CR 60.02 relief on this ground.
The orders of the Fayette Circuit Court denying
Badouan=s two CR 60.02 motions are affirmed.
KNOPF, JUDGE, CONCURS.
SCHRODER, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
SCHRODER, JUDGE, DISSENTING.
this case.
I have two problems with
First, the ruling on the motion to reconsider the
interlocutory order that determined the Housing Authority had the
right to condemn was sent to the wrong attorney.
Both sides
agreed that Jerry Anderson represented the appellant, but the
order was sent to Nader Shunnarah, the appellant=s original
attorney.
Until Anderson has notice, I would toll the 30-day
period for filing exceptions under KRS 416.620(1).
The second problem is with the Housing Authority=s
attorney filing the case.
KRS 80.150 does authorize the Housing
Authority to file suit in its name, but by the city attorney, not
the Housing Authority=s attorney.
Unless the Housing Authority=s
attorney was appointed a special city attorney, he had no
authority to file the case.
I would reverse and remand the case
and require the Housing Authority to start over.
17
BRIEFS AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF FOR APPELLEE:
David A. Owen
Brian M. Johnson
Greenebaum Doll & McDonald
Lexington, Kentucky
Barbara Anderson
Lexington, Kentucky
ORAL ARGUMENT FOR APPELLEE:
David A. Owen
Greenebaum Doll & McDonald
Lexington, Kentucky
18
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