OLIE WATKINS AND WILMA WATKINS, HIS WIFE; AND WIDE CREEK COAL COMPANY, INC. v. PAUL WATKINS; AND CLINT CHILDRESS
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RENDERED: December 12, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-000943-MR
OLIE WATKINS AND
WILMA WATKINS, HIS WIFE;
AND WIDE CREEK COAL COMPANY, INC.
v.
APPELLANTS
APPEAL FROM BREATHITT CIRCUIT COURT
HONORABLE LARRY MILLER, JUDGE
ACTION NO. 81-CI-00042
PAUL WATKINS; AND
CLINT CHILDRESS
APPELLEES
OPINION
REVERSING
** ** ** ** **
BEFORE:
JOHNSON, SCHRODER AND TACKETT, JUDGES.
JOHNSON, JUDGE:
Olie Watkins and his wife, Wilma Watkins, and
Wide Creek Coal Company, Inc. have appealed from two orders
entered by the Breathitt Circuit Court on January 15, 2002, and
April 5, 2002, which ruled pursuant to KRS1 413.090(1) that the
15-year statute of limitations for bringing an action to enforce
a judgment had expired with respect to the judgment against Paul
1
Kentucky Revised Statutes.
Watkins which had been entered on January 5, 1984.
We conclude
that the motion for a new trial filed on January 6, 1984, by
Clint Childress, who was found to be jointly and severally
liable with Paul Watkins, caused the judgment entered on January
5, 1984, to become interlocutory and unenforceable as to both
Watkins and Childress, until November 24, 1999, when the trial
court ruled upon Childress’s motion for a new trial.
Hence, we
reverse.
This case has a long and convoluted history.
On
February 24, 1981, the appellants filed a complaint against
Watkins and Childress in the Breathitt Circuit Court, in which
they alleged that Watkins had “willfully and wrongfully”
obtained a restraining order prohibiting them from entering and
removing coal from a certain parcel of land.2
The case proceeded
to trial and on March 3, 1983, the jury returned a verdict
against Paul Watkins and Childress and awarded the appellants
damages in the amount of $120,000.00.
On January 5, 1984, the
trial court entered a judgment against Paul Watkins and
Childress in the amount $120,000.00.3
On January 6, 1984,
Childress filed a motion for a new trial.
Paul Watkins did not
file any post-judgment motions, nor did he file an appeal.
2
Childress acted as a surety for Paul Watkins and signed a bond for the
restraining order.
3
The trial court ruled that Paul Watkins and Childress were jointly and
severally liable to the appellants.
-2-
For
whatever reason, the trial court failed to rule on Childress’s
motion for a new trial until November 24, 1999.
On June 26, 1999, the appellants filed a motion
requesting a ruling on Childress’s motion for a new trial, which
had been pending since January 6, 1984.
On November 24, 1999,
the trial court entered an order ruling that due to inactivity
by Childress, his motion for a new trial had been waived.
The
trial court’s order stated, in relevant part, as follows:
Based on the requirements of the Rules
of Civil Procedure the Defendants were
timely [in] filing the motion for a new
trial, thereby converting the final judgment
into an interlocutory judgment. However,
since the motion has not been ruled on for
the past fifteen years, the Court of Appeals
of Kentucky has held in cases such as this,
the motion is to be considered waived.4
Therefore, the Order granting judgment
to the Plaintiffs on January 5, 1984, is
upheld as final and appealable.
This is a final judgment without just
cause for delay.
No appeal was filed from this order.
Thereafter, the appellants attempted to enforce the
judgment against Watkins.
Consequently, on November 3, 2000,
Watkins filed a motion to quash execution of the judgment.
In
sum, Watkins contended that pursuant to KRS 413.090(1) the 15year statute of limitations for bringing an action to enforce a
4
As previously discussed, Paul Watkins did not file any post-judgment
motions, nor did he join in Childress’s motion for a new trial. Thus, the
trial court’s reference to “the Defendants” is a misstatement.
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judgment had expired.
Watkins claimed that the motion for a new
trial filed by Childress had no effect on the finality of the
judgment entered against him on January 5, 1984.
On January 15, 2002, the trial court entered an order
granting Paul Watkins’s motion to quash execution of the
judgment.
The order stated, in relevant part, as follows:
When there are multiple parties in a
lawsuit, a judgment may be binding against
one and not all of the defendants. Smith v.
Overstreet[’]s Adm[’r,] 258 Ky. 781, 81
S.W.2d 571 (1935). In the instant case, the
Motion for New Trial filed by Defendant,
Childress, had no effect on the finality of
the judgment as against Defendant, Paul
Watkins. Defendant Watkins filed no post
judgment motions nor did he file an appeal.
Therefore, pursuant to KRS 426.030, the
Plaintiffs were free to execute on their
judgment against Defendant Watkins at any
time after the expiration of 10 days from
January 5, 1984.
A judgment expires and becomes
unenforceable 15 years from the date of
entry[.] KRS 413.090. An execution may be
issued upon a judgment at any time until the
collection of it is barred by the Statute of
Limitation[s][.] KRS 426.035.
The Statute of [L]imitation[s] on
judgments begins to run from the date of
entry of the judgment. In the instant case,
the date of the judgment was January 5,
1984. Thus, the judgment against Defendant
Watkins expired on January 5, 1999.
Therefore, the 15 year [S]tatute of
[L]imitations precludes the Plaintiff from
executing on the judgment, because it is
time barred by the [S]tatute of
[L]imitations.
-4-
On January 26, 2002, the appellants filed a motion
pursuant to CR5 59.05 requesting the trial court to reconsider,
alter, amend, or vacate the order entered on January 15, 2002.
On April 5, 2002, the trial court entered an order denying the
appellant’s CR 59.05 motion.6
This appeal followed.
The appellants contend that the motion for a new trial
filed by Childress on January 6, 1984, suspended the finality of
the January 5, 1984, judgment as to both Paul Watkins and
Childress until the motion was disposed of by the order entered
on November 24, 1999.7
We agree.
It is well established that a timely-filed motion for
a new trial renders an otherwise final judgment interlocutory
until it is ruled upon.8
A writ of execution cannot be issued
upon a judgment which is interlocutory in nature.9
The trial
court’s conclusion that the motion for a new trial filed by
5
Kentucky Rules of Civil Procedure.
6
Although the trial court denied the appellant’s CR 59.05 motion, it
nevertheless amended its November 24, 1999, order to reflect that “the
defendant, Clint Childress and not the defendant, Paul Watkins, timely filed
his motion for a new trial, thereby converting the January 5, 1984 Judgment
into an interlocutory judgment as to the defendant, Clint Childress[.]”
7
Paul Watkins did not file an appellate brief.
8
See Personnel Board v. Heck, Ky.App., 725 S.W.2d 13, 18 (1986) (“[a] motion
pursuant to CR 59 . . . converts a final judgment to an interlocutory
judgment” [citation omitted]). See also Kurtsinger v. Board of Trustees of
Kentucky Retirement Systems, Ky., 90 S.W.3d 454, 458 (2002) (“[t]he timely
filing of a CR 59.05 motion postpones finality, and a ruling on the CR 59.05
motion is necessary to achieve finality”); and Cornett v. Wilder, Ky., 307
S.W.2d 752, 753-54 (1957).
9
See City of Louisville v. Verst, 308 Ky. 46, 213 S.W.2d 517, 521 (1948).
See also 30 Am.Jur.2d Executions and Enforcement of Judgments § 53 (1994).
-5-
Childress had no effect on the finality of the January 5, 1984,
judgment as it applied to Paul Watkins was erroneous.
CR 54.02
provides, in pertinent part, as follows:
(1) When more than one claim for relief is
presented in an action, whether as a claim,
counterclaim, cross-claim, or third-party
claim, or 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 [emphasis added].
(2) When the remaining claim or claims in a
multiple claim action are disposed of by
judgment, that judgment shall be deemed to
readjudicate finally as of that date and in
the same terms all prior interlocutory
orders and judgments determining claims
which are not specifically disposed of in
such final judgment.
As the Supreme Court of Kentucky stated in Hale v. Deaton:10
For the purpose of making an otherwise
interlocutory order final and appealable,
the trial court is required to determine
‘that there is no just reason for delay,’
and the judgment must recite this
10
Ky., 528 S.W.2d 719, 722 (1975).
-6-
determination and also recite that the
judgment is final CR 54.02(1). The omission
of one of these requirements is fatal
[emphasis added].11
In the case sub judice, the judgment entered on January 5, 1984,
did not contain either of the recitals required by the rule.12
Thus, when Childress filed a motion for a new trial on
January 6, 1984, it caused the January 5, 1984, judgment to
become interlocutory.
During the time period of over 15 years
that the trial court failed to rule on this pending CR 59.01
motion, the January 5, 1984, judgment continued to be
interlocutory.
Only when the trial court ruled on the motion
for a new trial on November 24, 1999, did the January 5, 1984,
judgment become final.13
Accordingly, the 15-year statute of
limitations for enforcing the judgment did not begin to run
until the judgment became final on November 24, 1999.
Based on the foregoing reasons, the orders entered by
the Breathitt Circuit Court on January 15, 2002, and April 5,
2002, are reversed.
11
The trial court’s reliance on Smith, supra, is misplaced as the case was
decided prior to the enactment of CR 54.02. See, e.g., Hawks v. Wilbert,
Ky., 355 S.W.2d 655, 656 (1961).
12
The January 5, 1984, judgment stated, in relevant part, as follows: “It is
therefore ordered by the Court that the plaintiffs recover of the defendants,
jointly and severally the sum of $120,000.00 and their costs herein for which
plaintiffs may have execution.”
13
See Heck, 725 S.W.2d at 18 (“[a] judgment which is dispositive of the
issues raised in [a] CR 59 motion readjudicates all prior interlocutory
orders and judgments determining claims which are not specifically disposed
of in the latter judgment” (citing CR 54.02(2) and CR 73.02(1)(e))). See
also White v. Hardin County Board of Education, Ky., 307 S.W.2d 754, 755-56
(1957); and 7 Philipps, Kentucky Practice, CR 54.02, cmt. 7 (5th ed. 1995).
-7-
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Donna R. Hale
Stanton, Kentucky
No brief filed.
-8-
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