RONALD E. HINES AND ARLETA K. HINES V. MARTHA COLLARD
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RENDERED:
NOVEMBER 5, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002348-MR
RONALD E. HINES
AND ARLETA K. HINES
V.
APPELLANTS
APPEAL FROM GRAYSON CIRCUIT COURT
HONORABLE ROBERT A. MILLER, JUDGE
CIVIL ACTION NOS. 99-CI-00113 AND 01-CI-00324
MARTHA COLLARD
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, McANULTY, AND MINTON, JUDGES.
MINTON, JUDGE:
The Kentucky Transportation Cabinet settled an
eminent domain action with Ronald and Arletta Hines, the
property owners, and Martha Collard and her late husband, Carl,
the mortgage holders.
In a dispute that arose after the
settlement, the circuit court found that the Hineses were bound
by a concession made by their lawyer in an earlier court hearing
to the effect that the Hineses did not contest their obligation
under the real estate mortgage to pay the Collards up to
$10,000.00 per condemned acre.
The circuit court granted
summary judgment for Martha and ordered that the funds from the
condemnation action be held by the clerk of the court be
distributed to her with interest.
We agree with the circuit
court’s judgment and we affirm.
The case has had an unusual history.
The circuit
court’s judgment succinctly summarized the background as
follows:
The Hines [sic] were served April 22,
199[9] and April 23, 1999. On May 4, 1999,
Defendants Hines timely filed an Answer to
the Plaintiff DOT’s Petition denying DOT’s
right to take and constitutionality of the
Eminent Domain Act KRS 416.540 to 416.990.
Thereafter, an evidentiary hearing was
set for June 15, 1999 by Order. A
continuance thereof was set by Order for
June 29, 1999. A briefing schedule was set
by Order entered July 9, 1999. An
Interlocutory Order and Judgment was entered
September 9, 1999 with the Commissioner’s
Award ordered paid to the clerk of the
court. The $43,260.00 award was paid to the
clerk of the court pursuant to Order entered
September 9, 1999.
By Statement of Exceptions filed
September 13, 1999, Defendants Hines
excepted to the Commissioner’s Award.
On September 15, 1999, Defendants/Cross
Claimants Collards made motion for judgment
against the Hines on their Crossclaim.[1]
1
The Transportation Cabinet named both the Hineses and the
Collards as party defendants in the condemnation action.
The
Collards filed a crossclaim against the Hineses, asserting
entitlement to the proceeds of the condemnation up to an amount
equaling
$10,000.00
per
acre
of
land
condemned.
The
Transportation Cabinet has settled any claims involving it,
leaving only the crossclaim between the Collards and the Hineses
to be resolved.
-2-
On September 22, 1999, the Court
entered an Order reflecting a hearing on the
Collard[s’] motion for judgment. Counsel
for Hines was present. The Order provides
Due to the indication by counsel
for Defendants, Ronald Hines and Arleta
Hines, his wife, that an appeal would
be filed to the Court’s Interlocutory
Judgment entered September 9, 1999 and
that if the said Defendants were unsuccessful on appeal, that the Defendants,
Carl Collard and Mary Collard, his
wife, would be entitled to the proceeds
up to $10,000.00 per acre on the amount
of real property being taken by eminent
domain, IT IS HEREBY ORDERED that the
Defendant Collards’ motion shall be
held in abeyance pending either the
filing of an appeal by Defendant Hines
or the ruling of the appellate court on
the appeal.
Thereafter, Hines filed a Notice of
Appeal entered September 21, 2000. By Order
Dismissing Appeal, the Court of Appeals []
dismissed Appellant Hines [sic] appeal.
There-after by separate Order Dismissing
Appeal filed May 17, 2001, Hines voluntarily
dismissed the appeal as “premature.”[2]
[Following dismissal of the appeal, the
action was set for trial by jury on
March 15, 2002.]
Finally, on January 9, 2002, over
thirty-two (32) months from filing of the
Collards’ Crossclaim, Ronald E. Hines, as
Attorney for Defendants Ronald E. Hines and
Arleta Hines, mailed to the clerk of the
court for filing without leave of court, a
late Answer to Crossclaim. Therein, for the
first time (contrary to the prior counsel’s
2
Following the first dismissal of the appeal, the Hineses moved
the Court to reconsider its order dismissing the appeal.
That
motion was granted and the appeal was reinstated.
-3-
representation and agreement before the
court), Hines asserted the Collards are not
entitled to any of the condemnation proceeds
because they are not selling the property
secured by the Collards’ Mortgage.[3] Hines
wants to ignore the 9/22/99 Order and argue
the “condemnation” does not constitute a
“sale” requiring payment of the
$10,000.00 per acre per terms of the
mortgage.
On January 11, 2002, Hines moved for a
Declaratory Judgment on the Collards’ Crossclaim. Collards’ counsel filed a Responsive
Memorandum on January 29, 2002 asserting the
Default in Answering by Hines as a defense
to Hines’ motion. Mr. Collard died during
the pendency of this action leaving
Mrs. Collard as the only necessary party on
his behalf.
The circuit court did not consider the Hineses’
proffered answer to the counterclaim finding that it was not
timely filed and without leave of court.
It declined to allow
retrospectively its submission, finding the delay of nearly
three years not to be the sort of excusable neglect contemplated
by Kentucky Rules of Civil Procedure (CR) 6.02.
It further
concluded that the representation in its earlier order that the
Collards would be entitled to condemnation proceeds should the
appeal be unsuccessful is binding on the Hineses.
In a motion to reconsider, the Hineses argued that
their attorney acted beyond his authority in making this
3
The mortgage documents contained language that $10,000.00 per
acre would be due to the Collards in the event of a sale of the
property.
The Hineses’ theory is that condemnation does not
equal a “sale” as contemplated by the mortgage.
-4-
representation, that he had not informed them of it, and that he
was ultimately disbarred for similar behavior in other cases.4
But the circuit court rejected the motion.
It found that the
Hineses did have adequate notice of the proceedings in which
their former attorney participated.5
It further rejected the
Hineses’ claims of excusable neglect premised on the idea that
even if there had been a problem with Zimmerman’s actions in
representing the Hineses, Ronald Hines, an attorney himself,
should have brought it to the court’s attention sooner than
32 months after the fact and after the court’s explanation of
its summary judgment in favor of the Collards in which it
elaborated on the Hineses’ failure to answer the Collards’
crossclaim.
On appeal, the Hineses present several arguments
challenging the circuit court’s summary judgment, some of which
should be dealt with summarily.
As an initial matter, there is no merit to the
Hineses’ argument that the court was unable to enter judgment in
favor of the Collards.
The Hineses moved the court for judgment
4
See Kentucky Bar Ass’n. v. Zimmerman, Ky., 69 S.W.3d 465 (2001).
5
The court pointed to the check written by Ronald Hines’s
Professional Service Corporation for the appellate filing fees as
tangible evidence that the Hineses had actual knowledge of the
proceedings.
-5-
as a matter of law,6 which the court acted upon.
That the
decision was not in the Hineses’ favor is not in itself error.
The Hineses’ contention that the court should not have
granted the Collards’ oral motion for summary judgment is
similarly lacking in merit.
The Hineses are referring to the
hearing on September 22, 1999, in which the court explained that
the Hineses’ attorney conceded that if the appeal taken at that
time7 was unsuccessful, the Collards would be owed $10,000.00 per
acre.
However, contrary to the Hineses’ assertion in their
current appeal, the court did not grant the Collards’ summary
judgment at that time.
Rather, the court held the matter in
abeyance pending the outcome of the appeal and only entered
judgment in favor of the Collards in response to a motion by the
Hineses.
The Hineses’ argument that the Collards’ claim was
abated misunderstands the nature of the proceedings and the law
6
Their motion was styled as a motion for declaratory judgment.
However, in that this was not truly a declaratory action, that
title is something of a misnomer. The circuit court was correct
to treat the motion as one seeking summary judgment under CR 56
in that the Hineses were, in essence, seeking a judgment as a
matter of law.
7
While their brief does not explain the basis for this appeal, we
infer that it was concerned with the Transportation Cabinet’s
right to take the land through condemnation.
-6-
of abatement.
The Hineses cite various authorities8 for the
proposition that multiple lawsuits cannot be prosecuted for the
same cause and that the usual rule is that the later-filed
action will be abated.
Their argument is that because the
Collards filed another crossclaim asserting the same theory of
relief in a different condemnation action, the instant action
was somehow abated.
Where the Hineses’ argument must fail is that it does
not recognize that the two actions involve different parcels of
land.
Although the legal theory is the same, thereby allowing a
court to consolidate the actions in the interest of convenience
or judicial efficiency, the subject matter differs.
Simply put,
when different parcels of land are sought to be condemned,
different causes of action are undertaken with respect to each
parcel.
Therefore, abatement is inapplicable to the present
case.
The Hineses’ strongest argument is that their attorney
lacked the authority to bind them by his representation that the
Collards would be owed in the event the appeal was unsuccessful.
They are correct that as a general rule, an attorney lacks the
8
E.g., 1 C.J.S. Abatement and Revival § 16 (1985); Himler Coal
Co. v. Kirk, 210 Ky. 28, 275 S.W. 371 (1925); White v. Wulschner,
13 Ky. Law Rep. 974 (1982)
-7-
ability to bind a client absent the express consent of the
client.9
However,
... we can conceive of circumstances in
which the rights of third parties might be
substantially and adversely affected by an
attorney possessing apparent authority but
who lacked actual authority. If such a
contention were made, a court of equity
would be empowered to fix responsibility
where it belonged to prevent injustice. In
most circumstances, however, express
authority will be required and in the event
of a dispute as to whether the client has
given settlement authority, the trial court
shall summarily decide the facts.10
Here, the circuit court found that it would be
inequitable and prejudicial to the Collards to set aside a
representation made by the Hineses’ attorney nearly three years
before its final ruling.
Furthermore, it decided, as a factual
matter (as it was empowered to do under Clark), that it did not
accept the Hineses’ representations made as part of their motion
to reconsider.
Even ignoring their attorney’s representation, the
Hineses would still be liable to the Collards under a theory of
default.
The circuit court was not required to accept their
untimely counterclaim but had discretion to accept or reject
9
Clark v. Burden, Ky., 917 S.W.2d 574, 577 (1996).
10
Id.
-8-
it.11
We cannot say the circuit court abused its discretion in
refusing to accept a pleading which was nearly three years late.
Furthermore, as the court noted, Ronald Hines is himself an
attorney, so the court found it implausible that the lengthy
delay in filing the answer was due solely to his attorney’s
malfeasance and remained unknown to him.
Accordingly, the circuit court’s judgment is affirmed.
ALL CONCUR.
BRIEFS AND ORAL ARGUMENT FOR
APPELLANTS:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
Ronald E. Hines
Elizabethtown, Kentucky
Donald W. Cottrell
Leitchfield, Kentucky
11
CR 6.02; 15.01.
-9-
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