CECIL WILLIAMS v. WILLIAM C. OATES; WILLIAM C. OATES ESTATE, BILLY OATES, A/K/A WILLIAM C. OATES, JR., ADMINISTRATOR; BILLY OATES, A/K/A WILLIAM C. OATES, JR., AS AN INDIVIDUAL; AND JOE WALTON
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RENDERED:
NOVEMBER 17, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2006-CA-000413-MR
CECIL WILLIAMS
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE STEVE A. WILSON, JUDGE
ACTION NO. 91-CI-00127
v.
WILLIAM C. OATES;
WILLIAM C. OATES ESTATE,
BILLY OATES, A/K/A WILLIAM
C. OATES, JR., ADMINISTRATOR;
BILLY OATES, A/K/A WILLIAM C.
OATES, JR., AS AN INDIVIDUAL;
AND JOE WALTON
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HENRY AND WINE, JUDGES; BUCKINGHAM,1 SENIOR JUDGE.
WINE, JUDGE:
This appeal stems from a case that initiated in
February of 1991 in an action by Cecil Williams to recover for
an unpaid debt.
On April 15, 1991, the Warren Circuit Court
entered a default judgment on behalf of the Appellant, Cecil
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Senior Judge David C. Buckingham sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
Williams, against the Appellee, William C. Oates, in the amount
of $62,500.00 plus interest for the unpaid debt.
Appellant
diligently pursued post-judgment discovery efforts to collect
the debt, but all efforts were unsuccessful.
William C. Oates
died intestate on November 26, 1996, leaving his wife, Esther,
and son, Billy, who was later named the Administrator of the
estate in July of 1998.
Appellant filed a judgment lien against
Appellee and continued in his efforts to enforce the judgment to
no avail.
On October 22, 2003, more than ten years after the
original default judgment, Appellant filed a motion with the
court to amend and supplement the original complaint.
The court
granted leave to amend and supplement pursuant to Kentucky Rules
of Civil Procedure (CR) 15.01.
A second motion to amend was
also granted and entered on March 26, 2004.
Appellant remained
unable to collect on the original default judgment and filed a
motion to reinstate and reenter the original judgment on January
12, 2006, due to the approaching end of the fifteen-year statute
of limitations on this action pursuant to KRS 413.090.
The
Warren Circuit Court reinstated and reentered the judgment on
February 9, 2006, and additionally reversed the previous two
orders allowing Appellant to amend the original complaint.
We
now affirm.
Appellant’s main contention on appeal is that the
circuit court improperly reversed the orders allowing him to
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amend and supplement his original complaint.
We find no error
or abuse of discretion by the Warren Circuit Court.
The Kentucky Rules of Civil Procedure and Kentucky
case law support amending and or supplementing a pleading within
a specified period of time to prevent situations exactly like
the appeal now before us.
As the Kentucky Court of Appeals has
already stated in James v. Hillerich & Bradsby Co., 299 S.W.2d
92, 93 (Ky. 1956), “Under CR 59.05, a motion to alter or amend a
judgment must be served not later than 10 days after entry of
the judgement.”
The amendment of a complaint afforded by CR
15.01 applies only to an amendment offered during the pendency
of the action.
Id. at 94.
“Certainly it was not intended to
apply in situations where, by the lapse of a period of 10 days
after judgment, the court has lost control of the judgment.”
Id.
The Court of Appeals maintained that the circuit court had
lost jurisdiction to reopen or amend the judgment or to permit
the amended complaint to be filed after the lapse of ten days.
Id. at 93.
Later, in Yocum v. Oney, 532 S.W.2d 15 (Ky. 1975), the
Court reiterated that the circuit court lost jurisdiction ten
days from the date the order was signed and entered.
The Yocum
case involved an order signed on November 1, 1974, and a later
order of January 23, 1975, that were found to be void because
the court was without jurisdiction at the time they were signed
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and entered.
Id. at 16.
In Yocum the Court addressed the two
alternatives for the court to either declare the order void and
reverse the case or to sua sponte dismiss the appeal.
Id.
The appropriate procedure for this issue was again
addressed in Security Federal Savings & Loan Association of
Mayfield v. Nesler, 697 S.W.2d 136 (Ky. 1985).
In Nesler, an
order was entered directing property to be sold in satisfaction
of an earlier judgment.
Id. at 138.
The Court reiterated that
had the earlier order been incorrect, the appropriate remedy
would have been to file a motion under CR 59.05, which provides
that a court cannot change, on motion or sua sponte, a judgment
it has entered after ten days.
Id. at 139.
CR 59.05 states
that “a motion to alter or amend a judgment, or to vacate a
judgment and enter a new one, shall be served not later than 10
days after entry of the final judgment.”
The Court in Nesler
held that the original order was a final and appealable order
and the subsequent order to pay on the first judgment had no
effect on the first judgment.
The Appellant’s default judgment was entered on April
15, 1991, and was a final and appealable order.
The amendments
that were made and then reversed by the trial court have no
bearing on the effect of the original default judgment.
Later in Jude v. Morwood Sawmill, Inc., 726 S.W.2d 324
(Ky.App. 1987), the Court discussed a similar issue involving
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the entry of a corrected judgment.
At the time the corrected
judgment was entered, the time for appeal from the original
judgment had run, and the ten-day timeframe for motions to amend
or for a new trial had also expired under CR 52.02 and CR 59.
Id. at 326.
Neither party had filed a motion for relief under
CR 60.02, thus leaving the “only avenue open to the court to
change the original judgment” under CR 60.01 which allows for
the correction of a clerical mistake.
Id.
There is no clerical
mistake involved here to necessitate an amendment by the
Appellant.
The Appellant simply seeks to enforce the judgment
that became effective April 15, 1991, and remains effective to
the present.
We find all of these cases controlling in this
circumstance.
The Warren Circuit Court lost jurisdiction of the
judgment ten days from the date the original default judgment
was signed and entered on April 15, 1991.
The orders of October
2003 and March 2004 amending and/or supplementing the original
complaint were void ab initio.
The trial court simply did not
have jurisdiction to allow them, and the recognition of this
error and reversal was proper.
This appeal stems from two orders that were void.
The
original default judgment of April 15, 1991, remains in effect.
The judgment was reinstated and reentered to provide notice to
all parties of the time period of the statute of limitations.
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It is clear that the Appellant wants to enforce the default
judgment.
Appellant has not lost any rights or remedies for the
enforcement of this judgment, but the appropriate procedure is
not found in an attempt to amend a pleading more than ten years
after the entry of a default judgment.
The orders allowing the
amended and supplemental pleadings were properly reversed.
For the foregoing reasons, we affirm the decision of
the Warren Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT:
Chester I. Bays
Bowling Green, KY
BRIEF FOR APPELLEES, WILLIAM
C. OATES, WILLIAM C. OATES
ESTATE, AND BILLY OATES:
Samuel Frank Smith, Jr.
Bowling Green, KY
NO BRIEF FOR APPELLEE,
JOE WALTON
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