LANE (VIOLA) VS. LANE (LARRY)Annotate this Case
RENDERED: SEPTEMBER 12, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM POWELL CIRCUIT COURT
HONORABLE HON. FRANK ALLEN FLETCHER, JUDGE
ACTION NO. 04-CI-00230
VACATING AND REMANDING
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BEFORE: KELLER AND TAYLOR, JUDGES; GUIDUGLI,1 SENIOR JUDGE.
KELLER, JUDGE: This appeal involves the sale of certain real property by the
Powell County Master Commissioner (the Master Commissioner). On appeal,
Viola Lynn Lane (Viola) argues that she filed objections to the Master
Commissioner’s Report of Sale and that the Powell Circuit Court violated her right
Senior Judge Daniel T. Guidugli sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky constitution and KRS 21.580.
to due process by overruling her objections without providing her notice of a
hearing. For the reasons set forth below, we vacate and remand.
The marriage of Viola and Larry Lane (Larry) was dissolved in 1987.
After the dissolution, the parties reconciled but did not re-marry. They made joint
purchases of real and personal property, the only one that is pertinent to this appeal
is a residence located at 1775 Campton Road, Powell County, Kentucky (the
residence). The parties separated in either 2003 or 2004 and, on September 21,
2004, Viola filed a complaint asking the Powell Circuit Court to order the sale of
the parties’ property. Following what appears to have been a contentious and
lengthy litigation, the Powell Circuit Court ultimately ordered the residence to be
sold by the Master Commissioner.
The Master Commissioner entered a Notice of Sale on July 2, 2007,
setting the sale date for July 21, 2007. On July 20, 2007, Larry, pro se, filed an
objection to the sale, noting that: (1) the address on the notice of sale in the
newspaper listed the property as being in Clay City rather than Stanton; (2) he had
been unable to obtain legal counsel; and (3) the sale would adversely affect him
physically and mentally. The Master Commissioner went forward with the sale,
and Larry purchased the property for $40,000. On July 23, 2007, the Master
Commissioner entered her Report of Sale. In her Report of Sale, the Master
Commissioner moved the court “for approval and confirmation hereof”; however,
the Master Commissioner’s motion did not set forth a date or time for a hearing.
On July 30, 2007, the circuit court entered an Order for Commissioner’s Sale to
Lie Over for Exceptions. The order stated, in pertinent part, that “[s]hould no
exceptions be filed within ten (10) days of the date of this Order, said Sale shall be
confirmed upon Motion of the Master Commissioner.” The order did not state
what would occur if exceptions were filed or set a date or time for a hearing on any
On August 2, 2007, Viola filed an objection to the Master
Commissioner’s report arguing that Larry threatened potential buyers, which
tainted the sale, and that the notice of sale had the incorrect address. In support of
her argument that Larry had tainted the sale, Viola offered the Affidavits of Mike
Arnett (Arnett), Anna Wise (Wise), and her attorney. Arnett stated that Larry
approached him at the sale and, in a loud and angry voice, said, “You son-of-abitch, I didn’t bid against you when you were going through your divorce and had
your sale and I don’t appreciate you bidding against me. You son-of-a-bitch, I will
take care of you.” Wise stated that Larry approached her at the sale and said, “You
have no business here, you just go on and leave.” According to Wise, Larry was
angry and he frightened her, so she left the auction. Viola’s attorney stated that he
witnessed Larry “jump in the face of a gentleman who had made an opposing bid
on his property” and that he heard Larry threaten that man if he continued to bid on
the property. Viola did not move for a hearing on her objection, nor did she set
forth when a hearing should be scheduled on the court’s motion docket.
Larry filed a response to Viola’s objection on August 7, 2007. In his
response, Larry admitted that he “conveyed to Mr. Arnett that he was displeased
with Mr. Arnett bidding on property.” However, he denied using the exact words
contained in Arnett’s affidavit. Larry also admitted that he had words with Wise,
who is Viola’s mother. However, Larry stated that Wise was not present for the
sale and that their confrontation occurred after the sale had been completed. We
note, as did Larry, that the Master Commissioner did not note any irregularities
with the sale, and that Arnett did not state that Larry’s actions had any impact on
what he bid.
In her brief, Viola states that Larry requested an evidentiary hearing in
his response. However, Viola is over-reading Larry’s request, which states that,
“[i]n the event the Court is interested in hearing testimony,” Larry would request
an evidentiary hearing.
The circuit court’s docket sheet for August 8, 2007, indicates that
Viola’s objection was an “add on” and that “no motion” had been filed. As noted
by Viola in her brief, it is unclear who was present; however, there is a check mark
next to Larry’s name, indicating that he or his counsel may have been present. We
note that, in his brief, Larry states that he, his counsel, and the Master
Commissioner were all present. There is no record of what, if any, proceedings
took place on August 8, 2007; however, the docket sheet contains a notation that
the “motion to set aside sale is denied. Sale is final[.]” The docket sheet was
signed by the circuit court judge and entered on August 8, 2007. In her brief, Viola
states that neither she nor her attorney received a copy of the court’s order as
reflected on the docket sheet.
On August 28, 2007, Viola filed her Notice of Appeal to this Court. It
is from the order contained on the docket sheet that Viola appeals. In her appeal,
Viola argues that she did not receive notice of the hearing on her objection and that
her due process rights were thereby violated. Larry argues to the contrary. For the
reasons set forth below, we agree with Viola and vacate and remand.
STANDARD OF REVIEW
The issue raised by Viola is one of law; therefore, our review is de
novo. Carroll v. Meredith, 59 S.W.3d 484, 489 (Ky. App. 2001); see also A & A
Mechanical, Inc. v. Thermal Equipment Sales, Inc., 998 S.W.2d 505, 509 (Ky.
App. 1999); Aubrey v. Office of Attorney General, 994 S.W.2d 516, 518-19 (Ky.
App. 1998); and Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky. App. 1998).
Viola’s primary argument is that CR 6.04 requires that notice of a
hearing on a motion be provided to the parties. However, we begin our analysis
with the court’s July 30, 2007, order. As noted above, that order states that the
Master Commissioner’s report will not be acted upon for ten days. Ten days from
July 30, 2007, would have been August 9, 2007, not August 8, 2007. Therefore,
the addition of this matter to the court’s August 8, 2007, motion docket, absent
notice to all of the parties, was inappropriate.
Next we look to CR 53.06(2), which provides that:
[w]ithin 10 days after being served with notice of the
filing of the [commissioner’s] report any party may serve
written objections thereto upon the other parties.
Application to the court for action upon the report and
upon objections thereto shall be by motion and upon
notice as prescribed in CR 6.04. The court after hearing
may adopt the report, or may modify it, or may reject it
in whole or in part, or may receive further evidence, or
may recommit it with instructions.
Based on CR 53.06(2), a motion is required to prompt the court to take action on a
commissioner’s report or objections thereto. Neither Viola nor Larry filed a
motion asking the court to take action on her objections or to adopt the Master
Commissioner’s report. And neither Viola, Larry, nor the Master Commissioner
filed anything requesting that a hearing be scheduled at a date and time certain.
Although the Master Commissioner did move for approval of her report, any action
on that motion was stayed for ten days by the court’s July 30, 2007, order.
Therefore, addition of this matter on the court’s August 8, 2007, motion docket,
absent notice to all parties, was inappropriate.
Finally, we look to CR 6.04(1), which provides that
[a] written motion, other than one which may be heard ex
parte, and notice of the hearing thereof shall be served a
reasonable time before the time specified for the hearing,
unless a specific period is fixed by these rules or by order
of the court. Such an order may for cause shown be
made on ex parte application.
Based on CR 6.04, notice of a hearing is required to be given a reasonable time
before the time specified for the hearing. According to the Rules of Practice and
Procedure for the 39th Judicial Circuit (the local rules), “Powell County Civil and
Criminal Motion days shall be held on the first and third Wednesday, after the first
Monday, of each month . . . The Clerk shall keep a motion docket in which there
shall be docketed, in order, all motions filed with the Clerk no later than one week
prior to the Court’s Motion day.” (Emphasis in original). The local rules do not
state that a party filing a motion must designate the date and time for the motion to
be heard. Assuming for the sake of argument that Viola’s objections to the Master
Commissioner’s report constituted a motion, they were filed on August 2, 2007,
which is less than one week from August 8, 2007. Under the local rules, the
objections should not have been scheduled for a hearing until August 15, 2007, the
next available motion docket. Therefore, addition of this matter on the court’s
August 8, 2007, motion docket, absent notice to all parties, was inappropriate.
We note Larry’s argument that, under Carnahan v. Yocom, 526
S.W.2d 301 (Ky. 1975), a party making a motion is required to include notice of
the hearing date and time in the motion or within a reasonable time thereafter. If
no such date and time are designated, the motion may be deemed to be “no motion
at all.” Id. at 304. If Viola’s objections do not constitute a motion, and we agree
that they do not, then the court, by its own order, was foreclosed from considering
either the Master Commissioner’s report or the objections to that report until
August 9, 2007. If, as noted above, Viola’s objections are deemed to be a motion,
the earliest such a motion could have been automatically added to a motion docket
would have been August 15, 2007. In either case, addition of this matter on the
court’s August 8, 2007, motion docket, absent notice to all parties, was
Finally, Larry is correct that the Supreme Court of Kentucky held in
Kelley v. Fedde, 64 S.W.3d 812 (Ky. 2002), that a party objecting to a master
commissioner’s report is not necessarily entitled to an evidentiary hearing.
However, “the parties must be afforded an opportunity for oral argument.” Kelley
v. Fedde, 64 S.W.3d 812, 814 (Ky. 2002). By scheduling the hearing for August 8,
2007, without giving notice to Viola, the circuit court deprived her of the
opportunity for an oral argument.
For the above reasons, the circuit court’s order of August 8, 2007, is
vacated and this case is remanded. On remand, the circuit court is instructed to
provide the parties with, at a minimum, the opportunity to make oral arguments.
The circuit court may, as it deems appropriate, conduct an evidentiary hearing. We
are not holding that the court is required to ultimately find for Viola, only that she
is entitled to be heard. After providing her with that opportunity, the court may
reach whatever conclusions it finds are supported by the arguments or the
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Brian P. Gilfedder
B. Scott Graham