KENNETH BROWN v. WAYNE SHELTON
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RENDERED:
December 30, 2004; 2:00 p.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000282-MR
KENNETH BROWN
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MARTIN F. MCDONALD, JUDGE
ACTION NO. 03-CI-005976
v.
WAYNE SHELTON
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
TACKETT, TAYLOR, AND VANMETER, JUDGES.
TAYLOR, JUDGE:
Kenneth Brown brings this appeal from a January
9, 2004, Judgment of the Jefferson Circuit Court.
We reverse
and remand.
The underlying dispute involves a claim for damages
stemming from an alleged breach of a commercial lease.
Appellee
initially filed a forcible detainer petition in the Nelson
District Court, and an order of eviction issued therefrom.
To
recover unpaid rent, appellee then instituted this action in the
Jefferson Circuit Court.
Thereafter, appellee moved for summary
judgment; however, the court denied same by order entered
October 17, 2003.
Ky. R. Civ. P. (CR) 56.
The action was subsequently tried by the court without
a jury on December 5, 2003.
CR 39.02.
After appellee’s
presentation of evidence but before appellant had presented his
case, appellee moved for directed verdict under CR 50.01.
The
court granted the motion, and judgment in favor of appellee was
entered on January 9, 2004.
This appeal follows.
Appellant’s sole contention is that the circuit court
erred by granting a directed verdict.
We must agree.
We initially emphasize that a directed verdict is
clearly improper in an action tried by the court without a jury.
Morrison v. Trailmobile Trailers, Inc., Ky., 526 S.W.2d 822
(1975)(holding that a directed verdict is improper in a bench
trial); see also, 7 Kurt A. Philipps, Jr., Kentucky Practice, CR
50.01 cmt.5 (5th ed. 1995).
In an action tried by the court
without a jury, the appropriate procedural mechanism for early
dismissal is found in CR 41.02(2), which reads:
In an action tried by the court without a
jury, after the plaintiff has completed the
presentation of his evidence, the defendant,
without waiving his right to offer evidence
in the event the motion is not granted, may
move for a dismissal on the ground that upon
the facts and the law the plaintiff has
shown no right to relief. The court as trier
of the facts may then determine them and
render judgment against the plaintiff or may
decline to render any judgment until the
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close of all the evidence. If the court
renders judgment on the merits against the
plaintiff, the court shall make findings as
provided in Rule 52.01.
Under the plain terms of CR 41.02(2), a defendant may
move for dismissal at the close of plaintiff’s presentation of
evidence during a bench trial.
We view the scope of CR 41.02(2)
as being narrowly limited to dismissal in favor of a defendant.
As such, CR 41.02(2) cannot be read as providing the procedural
mechanism for a judgment in favor of a plaintiff at the close of
plaintiff’s presentation of evidence.
Our interpretation of CR
41.02(2) is consistent with recent dictum of the Kentucky
Supreme Court in Moore v. Asente, Ky., 110 S.W.3d 336 (2003):
By labeling his motion one for “judgment of
the pleadings” the Asentes’ counsel likely
misspoke. More than likely, the Asentes’
lawyer was moving for an involuntary
dismissal under CR 41.02(2), which is
similar to a motion for a directed verdict,
CR 50.01, but utilized in actions “tried by
the court without a jury . . . .” CR
41.02(2). Although a trial court may grant
judgment for the defendant [under CR
41.02(2)] if "upon the facts and the law the
plaintiff has shown no right to relief,” a
judgment for the plaintiff would not be
appropriate at this point in the proceedings
because the defendant has not yet completed
his proof.
Id. at 345 n.17 (citations omitted).
In sum, we hold a directed verdict under CR 50.01 is
improper in a trial by the court without a jury.
CR 41.02(2)
governs an action tried by the court without a jury.
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Under the
provisions of CR 41.02(2), a defendant may move for dismissal
after plaintiff’s presentation of evidence; however, a plaintiff
may not move for judgment after his presentation of evidence.
Accordingly, we are of the opinion the circuit court erred by
granting a directed verdict in favor of appellee.
We additionally observe that CR 52.01 requires the
court to make specific findings of fact and separate conclusions
of law before rendering judgment in a bench trial.
Roberts, Ky. App., 673 S.W.2d 733 (1984).
this rule is mandatory.
Skelton v.
The language found in
Id.; Standard Farm Stores v. Dixon,
Ky., 339 S.W.2d 440 (1960).
Here, the trial court made no
findings of fact or conclusions of law.
On retrial, the court
should make specific findings of fact and conclusions of law as
required by CR 52.01.
For the foregoing reasons, the Judgment of the
Jefferson Circuit Court is reversed and this cause is remanded
for proceedings not inconsistent with this opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Anne W. Miller
O’KOON HINTERMEISTER, PLLC
Louisville, Kentucky
Ilam E. Smith
PEDLEY ZIELKE GORDINIER &
PENCE, PLLC
Louisville, Kentucky
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