MARY CAROL GREENE v. CHIPPENDALE SQUARE
Annotate this Case
Download PDF
RENDERED:
JANUARY 13, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000202-MR
MARY CAROL GREENE
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. CLARK, JUDGE
ACTION NO. 02-CI-00469
CHIPPENDALE SQUARE
ASSOCIATION, INC.
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM AND McANULTY, JUDGES; PAISLEY, SENIOR JUDGE. 1
BUCKINGHAM, JUDGE:
Mary Carol Greene appeals pro se from an
order of the Fayette Circuit Court denying her CR 2 60.02 motion
to set aside a previous order denying her motion to alter,
amend, or vacate a judgment entered by the court in favor of
Chippendale Square Association, Inc.
1
We affirm.
Senior Judge Lewis G. Paisley, sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
2
Kentucky Rules of Civil Procedure.
On November 26, 2001, Chippendale filed a complaint
against Greene in the small claims division of the Fayette
District Court for $672.91 in unpaid homeowner’s assessments.
On January 4, 2002, Greene filed a motion to have the case moved
to the Fayette Circuit Court, alleging she had a counterclaim in
excess of the jurisdictional limits of the district court. 3
However, she did not attach a counterclaim to her motion.
Greene filed her counterclaim on January 28, 2002,
alleging that Chippendale was responsible for damage to her
property that she estimated would cost $4,449 to repair.
The
district court held a hearing on January 29, 2002, and
transferred the case to the circuit court.
See KRS 4 24A.310(1).
On May 9, 2003, Chippendale filed a motion for summary
judgment and attached an affidavit stating that Greene currently
owed the association $2,015.75 in unpaid assessments, late fees,
attorney fees, and court costs.
The affidavit was signed by
Edwin M. Gibson, the principal of Chippendale’s management
company.
Chippendale served the motion on Greene at her
Chippendale property address and at the new address she had
entered into the court record on January 14, 2003.
Chippendale
noticed a hearing on the motion for May 22, 2003.
Because that
3
Greene represented herself at all times before the district court and the
circuit court. She continues to represent herself in this appeal.
4
Kentucky Revised Statutes.
-2-
date was not the date the court heard motions, Chippendale renoticed the hearing for May 23, 2003.
Chippendale served notice
of the new hearing date to both addresses on May 12, 2003.
On May 16, 2003, Greene filed a motion requesting the
court to deny Chippendale’s motion and to refer the case to
mediation.
She did not file any other response to the motion.
On May 23, 2003, the circuit court held a hearing on
Chippendale’s motion.
Based on its review of the record and the
fact that Greene provided no defense in her response to the
motion, the court awarded summary judgment in favor of
Chippendale.
On June 3, 2003, Greene filed a motion to have the
summary judgment set aside.
The court did not actually enter
its order awarding summary judgment to Chippendale until the
following day.
Also, Greene did not schedule a hearing on her
motion.
On October 20, 2003, Chippendale filed a motion to
have Greene’s motion denied.
On October 24, 2003, Greene filed
a response, alleging that counsel for Chippendale had, on
several occasions, intentionally sent notices to the wrong
address in an attempt to prevent her from appearing in court.
Greene failed to appear at the October 24 hearing, and the court
entered an order on October 29, 2003, reflecting her nonappearance and denying her motion to set aside the judgment.
-3-
Chippendale filed an additional notice for hearing on
Greene’s motion in order to address her allegations that
Chippendale’s counsel intentionally mailed notices to her old
address to give her less time to respond.
That hearing was held
on November 7, 2003, and Greene failed to appear.
On November
12, 2003, the court entered an order denying her motion.
On December 1, 2003, Greene filed another motion to
set aside the summary judgment.
She explained therein that she
missed the November 7 hearing because she was delayed in
traffic.
That motion was set for a hearing on December 5, 2003.
Greene did not appear at the hearing due to illness.
On December 12, 2003, Greene filed another motion to
set aside the summary judgment.
December 19, 2003.
That motion was heard on
At the hearing Chippendale acknowledged it
had set notices to an incorrect address, but had remedied the
problem in time for Greene to receive the notices and respond to
the motions.
The court denied Greene’s motion, characterizing it as
a CR 60.02 motion to vacate the court’s November 12, 2003 order
denying her CR 59.05 motion to alter, amend, or vacate the
summary judgment.
The court stated that insufficient grounds
existed to alter, amend, or vacate the summary judgment and that
Greene’s non-appearance was inconsequential given her arguments
-4-
in the pleadings and her arguments before the court on December
19, 2003.
This appeal by Greene followed.
After Greene filed her notice of appeal with this
court, Chippendale filed a motion to dismiss.
respond.
Greene did not
Nevertheless, this court denied the motion.
However,
this court noted that the only issue Greene may raise in this
appeal is whether the circuit court abused its discretion in
denying her CR 60.02 motion.
This court noted that the time in
which to appeal from the summary judgment had expired when this
appeal was filed.
Greene acknowledges that this court’s order limits her
to arguing that the circuit court’s decision not to set aside
its summary judgment was wrong.
She asserts, however, that “it
is impossible to argue that the Court was wrong when it refused
to overturn its summary judgment without arguing that the
summary judgment was wrong.”
the summary judgment.
Therefore, she continues to attack
Greene raises the following arguments in
this appeal:
1.
The circuit court was wrong in granting summary
judgment because there were genuine issues of
material fact.
2.
There was no authority for the court to award
attorney’s fees.
-5-
3.
The court erred by not writing an opinion setting
out how it decided every question and showing the
authority for its decision.
4.
Chippendale never filed a complaint asking for any
more than $672.91 or for attorney fees or interest
at a rate to which it was not entitled.
CR 60.02 allows a court to relieve a party from a
judgment on the following grounds:
a.
mistake, inadvertence, surprise or excusable
neglect;
b.
newly discovered evidence which by due diligence
could not have been discovered in time to move for
a new trial under Rule 59.02;
c.
perjury or falsified evidence;
d.
fraud affecting the proceedings, other than
perjury or falsified evidence;
e.
the judgment is void, or has been satisfied,
released, or discharged, or a prior judgment upon
which it is based has been reversed or otherwise
vacated, or it is no longer equitable that the
judgment should have prospective application;
f.
any other reason of an extraordinary nature
justifying relief.
-6-
CR 73.02 sets out the procedure concerning when and
how an appeal is taken.
CR 73.02(1)(a) states that the notice
of appeal must be filed within 30 days after the date of
notation of service of the judgment.
“A party may not resort to
CR 60.02 to gain an additional extension of time to prevent the
application of CR 73.02.”
United Bonding Ins. Co., Don Rigazio,
Agt. v. Commonwealth, 461 S.W.2d 535, 536 (Ky. 1970).
Because
Greene did not file a timely appeal from the summary judgment,
and because she continues to attack that judgment, it appears
she is improperly resorting to CR 60.02 in order to prevent the
application of CR 73.02.
The United Bonding case specifically
states that such action is not allowed.
Id.
“CR 60.02 is not a separate avenue of appeal to be
pursued in addition to other remedies, but is available only to
raise issues which cannot be raised in other proceedings.”
McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997).
Each
of the issues raised by Greene in her appeal are issues that
could have been raised before the circuit court in response to
the summary judgment motion or in an appeal therefrom.
In
short, we will not address the arguments raised by Greene in her
brief because they concern matters that could have been raised
by her in an appeal from the summary judgment.
On appeal, this court will not disturb the exercise by
the circuit court of its discretion in denying a CR 60.02 motion
-7-
unless that discretion was abused.
S.W.2d 842, 843 (Ky. 1957).
See Fortney v. Mahan, 302
Under the circumstances in this
case, we conclude the court did not abuse its discretion in
denying the motion.
Finally, Greene did not properly preserve the issue of
the denial of the CR 60.02 motion.
CR 76.03(8) states that “[a]
party shall be limited on appeal to issues in the prehearing
statement except when good cause is shown the appellate court
may permit additional issues to be submitted upon timely
motion.”
Five months before Greene filed her prehearing
statement, this court entered an order specifically limiting
Greene’s issue on appeal to whether the circuit court abused its
discretion in denying her CR 60.02 motion.
Despite having
notice of the issue to which she was limited, Greene did not
raise the issue in her prehearing statement.
Therefore, the
issue of whether or not the circuit court abused its discretion
by denying her CR 60.02 motion to vacate the order denying her
motion, to alter, amend, or vacate the summary judgment is not
preserved for our review.
See Osborne v. Payne, 31 S.W.3d 911,
916 (Ky. 2000).
The order of the Fayette Circuit Court is affirmed.
ALL CONCUR.
-8-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Mary Carol Greene, Pro Se
Lexington, Kentucky
John P. Brice
Lexington, Kentucky
-9-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
