DONALD HAMILTON, INC. v. WEISSINGER ESTATES HOMEOWNER'S
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RENDERED:
DECEMBER 1, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-000174-MR
DONALD HAMILTON, INC.
v.
APPELLANT
APPEAL FROM SHELBY CIRCUIT COURT
HONORABLE REBECCA OVERSTREET, SPECIAL JUDGE
ACTION NO. 02-CI-00294
WEISSINGER ESTATES HOMEOWNER’S
ASSOCIATION, INC.
APPELLEE
OPINION
AFFIRMING
** ** ** ** ** ** ** **
BEFORE: JOHNSON AND WINE, JUDGES; MILLER,1 SPECIAL JUDGE.
MILLER, SPECIAL JUDGE:
Donald Hamilton, Inc., appeals from an
order of the Shelby Circuit Court holding it in contempt for
violating an Agreed Order entered into on June 18, 2003.
The
Agreed Order settled litigation between Donald Hamilton, Inc.,
and the Weissinger Estates Homeowner’s Association by requiring
Donald Hamilton, Inc., and its successors in interest, to
refrain from developing Phases I through V of Weissinger Estates
1
Retired Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
Subdivision in any manner contrary to the Subdivision’s Deed of
Restriction.
For the reasons stated below, we affirm.
The appellant, Donald Hamilton, Inc., was the initial
developer of Weissinger Estates.
In 2002, the appellant sought
to develop a portion of the Subdivision that had originally been
designated as a “green space” area.
In connection with this,
the appellant filed a preliminary subdivision plat in which it
designated the green space area “Weissinger Estates Section V,”
and proposed to divide the area for residential development.
The plat included a road thorough Lot 62, which was a part of
Phase II of the development, to allow access to the Section V
development.
The Phase II plat had provided that Lot 62 would
be used for residential development.
On June 12, 2002, the Homeowner’s Association filed an
action seeking to enjoin the appellant from developing the green
space in any manner which violated the Subdivision’s Deed of
Restrictions.
To settle the litigation, on June 18, 2003, the
Homeowner’s Association and the appellant entered into an Agreed
Order which stated, in relevant part, as follows:
The Court, having considered an agreement
between the parties, Weissinger Estates
Homeowner’s Association and Donald Hamilton,
Inc., as witnessed by the signatures of
their respective counsel below, and being
otherwise sufficiently advised,
HEREBY ORDERS that the Defendant, Donald
Hamilton, Inc., shall remove and/or withdraw
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any applications or requests to divide or
otherwise develop any lots in phases I, II,
III, IV, or V of the Weissinger Estates in
any manner contrary to the Deed of
Restrictions of the Weissinger Estate
Subdivision. The Defendant specifically
agrees, on behalf of itself and any other
parties who may acquire any interest in the
Weissinger Estate Subdivision through it,
not to develop or otherwise use lot 62 in
Phase II of the Weissinger Estate
Subdivision for use as a roadway or in any
other fashion which would be contrary to the
Deed of Restrictions for Phases I through V,
of the Weissinger Estate Subdivision. The
Defendant further agrees to present and file
a new or amended plat to the Planning and
Zoning Board, or otherwise take any and all
other appropriate steps which may be needed,
to consummate the intent and requirements of
this Agreed Order.
On September 13, 2005, the Homeowner’s Association
filed a motion to require the appellant to show cause why it
should not be held in contempt for failure to comply with the
June 18, 2003, Agreed Order.
The motion stated, in relevant
part, as follows:
On or about July 25, 2005, Hamilton filed an
application with the Triple S Planning
Commission seeking to subdivide and develop
an area of green space located within the
Weissinger Estates Subdivision (the
“Subdivision”). This plan proposes a road
to be built between lots 73 and 74. . . .
Construction of the proposed road would
cause lots 73 and 74 of Phase IV of the
Subdivision to be in violation of the Deed
Restrictions for Phases I through V of the
Subdivision. The plan that Hamilton has
filed would cause these lots to violate the
minimum setback requirements of Shelby
County Zoning Regulation (“ZR”) 810(3).
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Additionally, the construction of a road
between these lots would cause lot 73 to be
in violation of Shelby County Subdivision
Regulation (“SR”) 4.303 because the driveway
of lot 73 is less than the required fifty
feet from the intersection of Weissinger
Court and the proposed street. Finally, the
proposed dead end road would be longer than
one-thousand (1,000) feet, in violation of
SR 4.205. Hamilton’s failure to remove or
withdraw this application violates the
Agreed Order.
A hearing on the motion was held on October 3, 2005,
at which time counsel for the parties presented arguments to the
trial court.
On December 13, 2005, the trial court entered an
order holding the appellant in contempt of court for violating
the Agreed Order of June 18, 2003.
On December 21, 2005, the
appellant filed a “Motion for Hearing, Motion to Make Additional
and Amend [sic] Findings, [and] Motion to Reconsider, Alter,
Amend and Vacate.”
On January 10, 2006, the trial court issued
an order denying the motion.
This appeal followed.
First, the appellant contends that a finding of
contempt was improper because the current owner of the property,
Weissinger Estates, Inc., was not joined as a party to the
litigation.
We disagree.
“An indispensable party is one whose absence prevents
the Court from granting complete relief among those already
parties.”
Liquor Outlet, LLC v. Alcoholic Beverage Control
Board, 141 S.W.3d 378, 386-387 (Ky.App. 2004); CR 19.01.
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A
necessary party is one whose interest would be divested by an
adverse judgment.
West v. Goldstein, 830 S.W.2d 379 (Ky. 1992).
The issue presented in the Homeowner’s Association’s
show cause motion was whether the appellant had violated the
parties’ June 18, 2003, Agreed Order.
The absence of Weissinger
Estates, Inc, from the litigation neither prevented the court
from granting complete relief to the parties, nor did the trial
court’s ruling upon the contempt motion divest Weissinger
Estates, Inc., of any interest.
Accordingly, it was not
necessary, in connection with the contempt motion, to join
Weissinger Estates as a party to the litigation.
Next, the appellant contends that “this case has a
prior adjudication and the trial court has no personal
jurisdiction over the owner of the property.”
The Agreed Order required Donald Hamilton, Inc. “and
any other parties who may acquire any interest in the property”
not to develop the Subdivision in a manner contrary to the Deed
of Restrictions for Phases I through V.
Accordingly, it was
incumbent upon the appellant to bind any successor in interest
to the terms of the Agreed Order, and if it did not, and that
successor violated the terms of the Agreed Order, it follows
that the appellant is in contempt.
Moreover, the power of the
courts to punish for contempt is one of the powers inherently
belonging to the judiciary.
Arnett v. Meade, 462 S.W.2d 940,
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947 (Ky. 1971).
“As necessary to the due exercise of their
functions, it was recognized at common law, and has been from
time immemorial, that courts have the inherent power to enforce
their processes and orders and so to attain the ends of their
creation and existence.”
S.W.2d 836, 840 (1943).
Crook v. Schumann, 292 Ky. 750, 167
Because the issue presented in the case
involved enforcement of a prior order to which appellant is a
party, it follows that the circuit court properly exercised
jurisdiction over the appellant.
Next, the appellant contends that there was no
justiciable claim before the circuit court because “[a]t the
time of the motion for rule by the Appellee, there was no
application for anything before the Triple S Planning and Zoning
Commission, on behalf of the Appellant.”
However, the Agreed
Order required the appellant to “take any and all other
appropriate steps which may be needed, to consummate the intent
and requirements of this Agreed Order.”
The filing of a plat in
violation of the Subdivision’s Deed of Restrictions for Phases I
though V, as alleged in the contempt motion, would be a
violation of this provision of the Agreed Order.
The Agreed
Order was not limited to applications before the Planning
Commission.
Hence, this argument is without merit.
The appellant contends that the trial court erred by
failing to conduct an evidentiary hearing.
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The only citation
provided by the appellant to its preservation of its request for
an evidentiary hearing is its post-judgment motion to alter,
amend, or vacate.
However, "[a] party cannot invoke [CR 59.05]
to raise arguments and introduce evidence that could and should
have been presented during the proceedings before entry of the
judgment." 7 Kurt A. Philipps, Jr., Kentucky Practice, CR 59.05,
cmt. 6 (5th ed.1995); Hopkins v. Ratliff, 957 S.W.2d 300, 301
(Ky.App. 1997).
Accordingly, the appellant’s argument that the
trial court erred by failing to conduct an evidentiary hearing
is not properly preserved.
Finally the appellant argues that the trial court
failed to make appropriate findings.
We disagree.
The trial
court made findings sufficient to support its conclusion that
the filing of the proposed plat reflects an intention to develop
the Subdivision in a manner inconsistent with the Deed
Restrictions for Phases I through V, and that such intention is
inconsistent with the June 18, 2003, Agreed Order.
For the foregoing reasons the judgment of the Shelby
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gregg Y. Neal
Shelbyville, Kentucky
Stephen A. Houston
Kathryn V. Eberle
Louisville, Kentucky
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