KIMBALL (GEORGE) VS. LEITCHFIELD DEVELOPMENT CORPORATIONAnnotate this Case
RENDERED: DECEMBER 19, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM GRAYSON CIRCUIT COURT
HONORABLE SAM H. MONARCH, JUDGE
ACTION NO. 97-CI-00224
LEITCHFIELD DEVELOPMENT CORPORATION
VACATING AND REMANDING
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BEFORE: DIXON AND THOMPSON, JUDGES; LAMBERT,1 SENIOR
DIXON, JUDGE: George Kimball, pro se, appeals from a final judgment of the
Grayson Circuit Court following a jury trial. Because the final judgment was
Senior Judge Joseph E. Lambert, sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
based on an ambiguous jury verdict, we vacate the judgment and remand for a new
In August 1991, Kimball agreed to purchase a mobile home from
Leitchfield Development Corporation (LDC) for $18,194.70. LDC financed the
purchase price of the mobile home, and Kimball signed an installment loan
contract for 120 payments of $304.89. At that time, LDC was owned and operated
by L.T. Fraim. In October 1995, Fraim passed away, and Dan Cann took over the
daily business of LDC.
In August 1997, LDC filed a foreclosure complaint against Kimball in
Grayson Circuit Court, alleging he owed $22,287.81 on the mobile home contract.
Kimball filed an answer and counterclaim, pro se, denying the allegations in the
complaint and alleging that LDC owed him a refund because he had actually paid
more than his contract obligation.
A jury trial was held on November 16, 1998. Cann testified that the
records of LDC were in disarray when he took over the business. He
acknowledged that it took several months to organize the records and to determine
customers’ account balances. Cann stated that, based on the records he found in
the LDC office, Kimball made only sporadic payments and was significantly
behind on his monthly payment obligation.
Kimball, represented by counsel, testified that he had made three large
cash payments to Fraim, which nearly eliminated his indebtedness on the note.
Kimball claimed he paid Fraim $2,500.00 in October 1993, $10,000.00 in February
1994, and $5,000.00 in January 1995. On each occasion, Fraim visited Kimball’s
farm, and Kimball paid Fraim with money he had earned selling and breeding
horses. Kimball acknowledged that he did not receive a receipt from Fraim to
memorialize the cash transactions. Kimball also testified that he and Fraim had a
friendly relationship and that Fraim understood Kimball’s income from his horse
farm fluctuated. Kimball produced one receipt, dated April 1995, where he had
made a $1,000.00 payment at the LDC office, and the receipt stated a balance of
$1,908.07 remained. Kimball also called three additional witnesses, including his
son, to corroborate the details of Fraim’s visits to the farm.
LDC produced its accounting report, complied by Cann, showing
Kimball owed $22,287.81. Kimball claimed there were errors on Cann’s report,
and he specifically noted he did not make a $2,000.00 payment in December 1995,
shown on the report.
At the close of all evidence, the court instructed the jury, in relevant
INSTRUCTION NO. 2
Do you find from a preponderance of the evidence
that the Defendant, George Kimball, paid to Tommy
Fraim the sum of $10,000 in cash, the sum of $5,000 in
cash, and the sum of $2,500 in cash for which he did not
receive credit? Indicate your verdict below.
If your answer to the above is “No,” return to the
Courtroom now. If you answered “Yes,” then go to the
INSTRUCTION NO. 3
If you answered yes to the above referenced
Instruction No. 2, then you shall determine from a
preponderance of the evidence the sum of the net
payments to be credited to the Defendant, George
Kimball. Net payments being the total of all payments
actually made for which he did not receive credit less
(minus) payments for which he received credit but, in
fact, he did not make.
We, the jury, find that the net payment accounting
errors for which the Defendant is entitled to credit is
$___________ (not to exceed $17,500.00).
After deliberating, the jury returned their verdict, marking “yes” to
instruction number two, and “$5,000.00” for instruction number three.
Prior to discharging the jury, the court met with the parties in
chambers. LDC argued the verdict was inconsistent. Kimball argued that the
verdict entitled him to a credit of $17,500.00 and an additional $5,000.00 credit for
overpayment of the note. The judge agreed with LDC, stating that the verdict was
defective. The judge explained that the evidence showed Kimball did not
remember making a $2,000.00 payment; consequently, the acceptable amount of
credit for instruction number three was $17,500.00 or $15,500.00. The judge
concluded that the jury could not clarify the defect and discharged the jury.
Following the trial, Kimball moved the court to render final judgment
pursuant to the jury’s verdict. LDC renewed its objection that the verdict was
inconsistent. On December 1, 1998, the court took the matter under submission.
In April 2000, the trial court rendered a judgment finding that Kimball
had paid $17,500.00. The judgment also provided Kimball an additional $5,000.00
credit. The judgment, however, stated, “This Order is not a final Order.”
A review of the record shows that the case languished on the court’s
docket. In March 2003, the court ordered both parties to tender proposed
judgments, and the parties complied. In January 2007, the case was assigned to
Judge Monarch as a senior status judge. In June 2007, Judge Monarch signed the
judgment LDC had tendered in 2003. The judgment stated that, after crediting
Kimball’s account $5,000.00, LDC was entitled to recover $17,126.33, plus
interest, from Kimball. After judgment was rendered in favor of LDC, nearly nine
years after the trial, this appeal followed.
Kimball contends the jury found he had paid $17,500.00 and was
entitled to an additional $5,000.00 credit for payments made to LDC exceeding his
indebtedness. Kimball asks this Court to reverse the judgment and instruct the trial
court to render judgment in his favor. On the other hand, LDC contends the
judgment correctly reflects the jury’s verdict that Kimball was only entitled to a
$5,000.00 credit against his total indebtedness.
In Smith v. Crenshaw, 344 S.W.2d 393 (Ky. 1961), the former Court
of Appeals addressed a defective jury verdict. The court stated:
First, we shall say that we think that in any case where
the verdict is incomplete, ambiguous, inconsistent,
irregular or otherwise defective the proper procedure
should be that the jury be sent back to complete or
correct the verdict. A motion to that end should be made
by the party or parties affected by the defect.
Id. at 395.
In the case at bar, the flawed verdict was brought to the court’s
attention, albeit by LDC. The court agreed that the verdict was defective, but
refused to resubmit the verdict to the jury for clarification. Because the verdict
remained ambiguous, “there [was] no basis in the verdict upon which the court
[could] enter judgment.” Id. As a result, the judgment resolving this case was
speculative, since the actual meaning of the jury’s verdict was unknown. See
Anderson's Ex'x v. Hockensmith, 322 S.W.2d 489, 491 (Ky. 1959).
After thoroughly reviewing the written record and trial proceedings, it
is clear the infirmity herein cannot be resolved by merely affirming or reversing
the judgment. The verdict is ambiguous, and the court’s decision to render
judgment in favor of LDC does not resolve the ambiguity. In light of the
conflicting evidence, we also conclude it would be improper for this Court to offer
its own interpretation of the verdict. Consequently, the proper course of action is
to vacate the judgment and remand the case for a new trial.
For the reasons stated herein, the order of the Grayson Circuit Court is
vacated, and this case is remanded for further proceedings consistent with this
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
George Kimball, Pro Se
Donald W. Cottrell