ALMEDIA ADKINS v. JUDI PATTON
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RENDERED:
JANUARY 20, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
2004-CA-002471-MR
ALMEDIA ADKINS
APPELLANT
APPEAL FROM PIKE CIRCUIT COURT
HONORABLE EDDY COLEMAN, JUDGE
ACTION NO. 96-CI-01592
v.
JUDI PATTON
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, HENRY, AND TAYLOR, JUDGES.
HENRY, JUDGE:
Almedia Adkins appeals from a November 3, 2004
Order of the Pike Circuit Court denying her motion to re-enter a
final order that was issued on May 13, 2002 following a jury
trial.
Upon review, we affirm.
This case stems from a property dispute in which both
parties claimed ownership of the same parcel of land.
The land
had apparently been owned by Adkins’ family for several years
until legal title of it was passed to Patton’s former husband by
deed in 1968.
Adkins claimed that the consideration paid for
that deed – a car and a motorcycle – were stolen from her and
her husband within a few days of the execution and delivery of
the deed to Patton’s ex-husband, and that she remained in
possession of the land at all times.
On October 18, 2001, a
Pike County jury determined that Adkins had failed to prove that
she was in adverse possession of the land so as to divest Patton
of legal title.
On November 1, 2001, the trial court entered an
“Order of Proceedings and Judgment” consistent with the jury’s
decision.
On November 8, 2001, Adkins filed a “Motion for New
Trial or Judgment Notwithstanding the Verdict and to Alter,
Amend, or Vacate.”
Following a hearing, this Motion was denied
by the trial court in an order entered on May 13, 2002.
It is at this point that the events leading to the
present appeal began to take shape.
On September 2, 2004,
Adkins filed a “Motion to Re-enter Final Order” pursuant to CR 1
60.02.
The basis for this Motion was that the May 13, 2002
denial order “was not sent by the Clerk’s Office to counsel for
[Adkins], delivered nor otherwise transmitted.”
The Motion
further provided:
Counsel received a note from the Trial Judge
in this case that a final Order had been
entered and then began to search for the
court record. On various occasions, Robert
Page, a former Deputy Clerk, was sent to the
Clerk’s Office to hunt for the court record
and could not find it. The court record,
now located, indicates a final Order in
response to post-judgment motions.
1
Kentucky Rules of Civil Procedure.
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Adkins’ counsel also filed an affidavit with the Motion setting
forth that he failed to receive a copy of the trial court’s
order, and that he “received a note from the Trial Judge in this
case that a Judgment had been entered and the court record was
said by the Clerk’s Office to be misplaced for months.”
The
Motion and affidavit provide no indication as to on what dates
the aforementioned events occurred.
Patton responded to Adkins’ Motion by noting that the
May 13, 2002 order in question included a certification by the
Pike Circuit Court Clerk that a copy of the order had been sent
to Adkins’ counsel.
She further argued that the docket sheet
report for the case also indicated that a copy of the order was
mailed to all counsel of record on the day that it was entered,
and that her counsel had received a copy of it on May 17, 2002.
Patton further argued that Adkins’ Motion was not timely filed,
and that the case law relied upon in the Motion did not support
Adkins’ position.
On October 29, 2004, a brief hearing was held on
Adkins’ Motion.
Counsel for Adkins stated at the hearing that
his runner had begun searching for the order once counsel
learned that it had been entered.
He also advised the trial
court that he had found a copy of the order among his runner’s
papers and other belongings after the runner became ill and no
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longer worked for counsel’s firm, a fact that was not set forth
in Adkins’ original Motion and accompanying affidavit.
the date that this event occurred was not provided.
Again,
The trial
court subsequently denied the Motion without any comment as to
the substantive basis for its decision.
On November 3, 2004,
the trial court entered an order setting forth its denial of the
Motion - again without further elaboration.
This appeal
followed.
On appeal, Adkins argues that the trial court abused
its broad discretion in failing to re-enter its May 13, 2002
order when she failed to receive notice of the entry of that
order, when court records of the case were missing, and when the
governor’s wife is a party.
Patton counters that Adkins’ Motion
was untimely filed, that the case law relied upon by Adkins does
not support her position, and that the record does not clearly
or convincingly demonstrate a failure on the part of the circuit
court clerk’s office to send a copy of the order to Adkins.
It is well-established that any motion or action under
CR 60.02 addresses itself to the sound discretion of the trial
court, and – for that reason - the trial court’s denial of a CR
60.02 motion will not be disturbed unless there has been an
abuse of that discretion.
See Kurtsinger v. Board of Trustees
of Kentucky Retirement Systems, 90 S.W.3d 454, 456 (Ky. 2002)
(Citation omitted); Berry v. Cabinet for Families & Children,
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998 S.W.2d 464, 467 (Ky. 1999) (Citations omitted).
“The test
for abuse of discretion is whether the trial judge’s decision
was arbitrary, unreasonable, unfair, or unsupported by sound
legal principles.”
Goodyear Tire & Rubber Co. v. Thompson, 11
S.W.3d 575, 581 (Ky. 2000) (Citation omitted).
The purpose of
CR 60.02 is “to provide relief where the reasons for the relief
are of an extraordinary nature.”
S.W.2d 71, 73 (Ky.App. 1982).
Ray v. Commonwealth, 633
The rule “requires a very
substantial showing to merit relief under its provisions.”
Ringo v. Commonwealth, 455 S.W.2d 49, 50 (Ky. 1970).
We first address Patton’s contention that Adkins’
“Motion to Re-enter Final Order” was not timely filed.
CR 60.02
sets forth that any motion for relief brought pursuant to CR
60.02(a) – which covers the grounds of “mistake, inadvertence,
surprise or excusable neglect” – must be brought not more than
one (1) year after the judgment, order, or proceeding in issue.
We make note of this because Adkins relies almost exclusively on
the case of Kurtsinger v. Board of Trustees of Kentucky
Retirement Systems, supra, in support of her appeal.
In Kurtsinger, the Kentucky Supreme Court dealt with
the issue of whether a trial court may vacate a CR 59.05 order
under CR 60.02 upon a finding that a party did not receive
notice of entry of the order.
The particular facts of that case
are as follows: Thirteen (13) weeks following oral argument on a
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summary judgment motion, the trial court entered summary
judgment in favor of the Board of Trustees.
The appellants
subsequently filed a timely motion to alter, amend or vacate the
summary judgment pursuant to CR 59.05, but the motion was denied
on June 29, 2000.
Notice of entry of the order was sent to the
Board of Trustees but not to the appellants.
The appellants
became aware of the June 29th order on August 15, 2000, when a
telephone call was made by their counsel to check the status of
the CR 59.05 motion.
On learning of the June 29th order, the appellants
immediately filed a motion pursuant to CR 60.02 requesting the
trial court to vacate the June 29th order and to enter a new
order ruling on the CR 59.05 motion.
A hearing was conducted on
the matter, and the trial court concluded that his office had
made a mistake in not including the appellants on the
distribution list of the order.
The court therefore granted the
CR 60.02 motion on the basis of “mistake, inadvertence,
excusable neglect and reasons of an extraordinary nature
justifying relief,” apparently relying on CR 60.02(a), which –
as noted - permits a court to grant relief on the grounds of
“mistake, inadvertence, surprise or excusable neglect,” and CR
60.02(f), which permits a court to grant relief for “any other
reason of an extraordinary nature justifying relief.”
The court
also based its decision on the fact that the appellants “acted
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with due diligence and acted promptly.”
It then consequently
vacated its earlier order and entered a new one denying the CR
59.05 motion.
Kurtsinger, 90 S.W.3d at 455.
After the Court of Appeals subsequently dismissed the
appeal, finding that the appellants were not entitled to CR
60.02 relief, the case proceeded to the Supreme Court.
There,
the Court reaffirmed the trial court’s decision, concluding that
CR 60.02 was adopted to address circumstances such as the one
presented in that case, and that the trial court did not abuse
its discretion in employing the rule to grant relief to the
appellants.
See id. at 456 (Citations omitted).
While the trial court in Kurtsinger granted relief on
the grounds of “mistake, inadvertence, excusable neglect and
reasons of an extraordinary nature justifying relief,” a
combination of CR 60.02(a) and (f), it is clear from the opinion
that the Supreme Court treated the case as one involving only
the application of CR 60.02(a).
See id. (“Instead, this is
nothing more than a trial court vacating an order on the basis
of mistake, inadvertence, or excusable neglect and there is no
doubt that a trial court has authority pursuant to CR 60.02 to
grant such relief.”).
Indeed, there appears to have been no
reason for the trial court to invoke CR 60.02(f) in its
decision, as the situation there was amply covered by the
provisions of CR 60.02(a) since the trial court admitted that it
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had made a mistake.
Moreover, the motion for CR 60.02 relief
filed by the appellants was done so within the one-year
limitation period for relief under CR 60.02(a).
Consequently, we consider Adkins’ claim for relief as
one falling within the confines of CR 60.02(a).
As her Motion
was filed more than two (2) years after entry of the applicable
order here, it is apparent that she is not eligible for CR
60.02(a) relief.
See O’Neal v. O’Neal, 122 S.W.3d 588, 590
(Ky.App. 2002) (Citation omitted).
Furthermore, it appears as
if Adkins is not entitled to rely upon the “catch-all” language
in CR 60.02(f) for assistance, as we have previously held that
“relief is not available under CR 60.02(f) unless the asserted
grounds for relief are not recognized under subsections (a),
(b), (c), (d), or (e) of the rule.”
McMurry v. McMurry, 957
S.W.2d 731, 733 (Ky.App. 1997) (Citation omitted).
As we have
determined that the grounds set forth by Adkins here fall within
the purview of CR 60.02(a), we must decline to consider them
under CR 60.02(f).
However, even assuming that CR 60.02(f) was applicable
here, we fail to see how it would entitle Adkins to relief.
“It
is axiomatic that CR 60.02(f) requires extraordinary
circumstances to be shown before relief will be granted.”
Commonwealth v. Bustamonte, 140 S.W.3d 581, 583 (Ky.App. 2001)
(Citations omitted).
“Relief under CR 60.02(f) is available
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where a clear showing of extraordinary and compelling equities
is made.”
Bishir v. Bishir, 698 S.W.2d 823, 826 (Ky. 1985).
In Kurtsinger, only six (6) weeks and two (2) days
passed before the appellants became aware of the fact that they
did not receive a notice or copy of the final order; moreover,
when this fact was discovered, they immediately filed their
motion for relief.
Here, Adkins filed her motion for relief
more than two (2) years after judgment was entered.
Counsel for
Adkins admitted that he had received a note from the trial court
indicating that a final order had been entered, but there is
nothing within the record to indicate when this occurred.
Instead, the record simply indicates that, upon finding out that
an order had been entered, counsel undertook to search for the
court records of the case on “various occasions”; however,
again, no specifics are provided as to when these efforts
occurred.
Furthermore, in Kurtsinger, the trial judge concluded
that either he or his staff was fully culpable in failing to
effectuate service of the order to the appellants.
Here, the
May 13, 2002 order itself and the docket sheet report from the
court record both indicate that a copy of the order was sent to
Adkins; moreover, counsel for Adkins admitted at the hearing
that he had found a copy of the order within the papers of one
of his employees.
Again, however, the date that this occurred
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was not given.
Consequently, we fail to see how these facts
would demonstrate that Adkins is entitled to relief here under
the heightened standards of CR 60.02(f), as we do not believe
that “a clear showing of extraordinary and compelling equities”
has been made.
Accordingly, the November 3, 2004 Order of the Pike
Circuit Court denying Adkins’ “Motion to Re-enter Final Order”
is affirmed.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
Lawrence R. Webster
Pikeville, Kentucky
BRIEF FOR APPELLEE:
Regena Triplett
Pikeville, Kentucky
ORAL ARGUMENT FOR APPELLEE:
Pam May
Pikeville, Kentucky
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