HOLLAND (JOHN T.) VS. FRASURE (GERALD)
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RENDERED: DECEMBER 29, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2009-CA-002162-MR
JOHN T. HOLLAND
v.
APPELLANT
APPEAL FROM FLOYD CIRCUIT COURT
HONORABLE DANNY P. CAUDILL, JUDGE
ACTION NO. 05-CI-00946
GERALD FRASURE
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: LAMBERT, MOORE, AND NICKELL, JUDGES.
LAMBERT, JUDGE: John T. Holland appeals from the Floyd Circuit Court’s
order and judgment entered October 22, 2009, correcting an earlier judgment
granting summary judgment on liability in favor of the plaintiff below, Gerald
Frasure. The corrected judgment awarded Frasure $3,258.00, along with pre- and
post-judgment interest, related to his suit to enforce an agreement. We affirm.
We shall briefly set forth the facts in the case, keeping in mind that we are
reviewing the entry of a summary judgment. In 2003, Frasure and Holland entered
into an agreement regarding the lease/purchase of a 1999 coal trailer. The record
contains a short document entitled “Lease purchase agreement” signed by the
parties on May 3, 2003. The terms of the agreement are as follows: “I GERALD
FRASURE agree to pay the sum of $600.00 per month for the lease of one coal
trailer 1999 USTS. The sum of which is to be deducted on the purchase price of
the trailer.” Shortly after the parties entered into the agreement and Frasure had
taken possession of the trailer, Frasure wrecked the trailer and the truck to which it
was attached. Frasure filed a claim with his insurance company, Adriatic
Insurance Company, which covered damages to both the truck and the trailer. The
insurance company approved the claim, and on June 24, 2003, it issued a check for
the damages, less the deductible, in the amount of $6,458.00. The check was made
payable to both Frasure and Holland.
The parties then entered into the agreement that became the subject of the
underlying lawsuit. The agreement states: “I John Holland Agree to refund Three
Thousand Two Hundred Fifty Eight to Gerald Frasure on the Adriatic Insurance
Co. check #089354. Upon Check Clearing and 1999 USTS Trailer repair Owned
by Holland.” Holland signed the agreement on July 8, 2003. At that point in time,
Holland retook possession of the trailer and used at least a portion of the funds
from the insurance proceeds to pay for repairs to the trailer. However, Holland did
not refund any portion of the funds to Frasure.
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In September 2003, Frasure filed suit against Holland in Floyd District Court
seeking $3,258.00, the amount named in the agreement. In his answer, Holland
denied that the agreement constituted a contract, as it lacked consideration and was
demanded under duress. Along with his answer, Holland filed a counterclaim
against Frasure seeking damages for the funds he expended to repair the trailer as
well as the loss of value to the trailer as a result of the accident. Over the course of
the next two years, the parties engaged in limited discovery, and both parties
completed depositions.
On September 16, 2005, the district court transferred the case to the Floyd
Circuit Court because the amount of money in controversy exceeded its
jurisdictional limitation. The matter lingered in circuit court until the court issued
a sua sponte notice to dismiss for lack of prosecution in early 2008. The parties
responded, and the court granted Frasure’s motion to retain the case on the active
docket, but it ordered the parties to take substantial steps to prosecute the action
within ninety days.
Months later, Frasure filed a motion for summary judgment arguing that the
agreement was fully enforceable, and was not the result of extortion, coercion, or
duress. In response, Holland asserted that Frasure never made a payment on the
trailer pursuant to the earlier agreement, nor did he pay the repair bills for the
trailer. Therefore, Holland argued that Frasure was not entitled to any portion of
the insurance proceeds. In reply, Frasure contends that there never was an
agreement to purchase the trailer, only one to lease the trailer. He states that he
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paid the lease amount of $600.00 to Holland as evidenced by a receipt. He further
states that Holland’s argument concerning the lease/purchase agreement is moot, as
it is not the contract sought to be enforced. Rather, it is the July 8, 2003,
agreement concerning the insurance proceeds that is at issue.
On December 4, 2008, the circuit court entered an order ruling on Frasure’s
motion for summary judgment. The order reads as follows:
This cause having come on for hearing upon the
motion of the Plaintiff, Gerald Frasure, for Summary
Judgment and with the Court being otherwise fully and
sufficiently advised;
IT IS HEREBY ORDERED that the Plaintiff’s
Motion for Summary Judgment is GRANTED. This case
is hereby dismissed with prejudice with each side
responsible for its own costs. This is a final order with
no just cause for delay in its entry.
Because of the inconsistency in the order that his attorney prepared and
tendered to the court, Frasure filed a motion for corrected judgment pursuant to
Kentucky Rules of Civil Procedure (CR) 61.01 on December 16, 2008. In the
motion, Frasure requested an appropriate order from the court awarding him a
judgment for a specific sum ($3,258.00), his recoverable costs, and interest.
Holland objected to Frasure’s motion, pointing out that the motion was actually a
request to alter, amend, or vacate the original order. He asserts that the motion was
filed one day too late so that the court had lost jurisdiction to amend the order.
Holland further argued that the order was correct as entered and went on to argue
the merits of the case. Specifically, Holland argued that Frasure had no legal right
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to the insurance proceeds because he never purchased the trailer. In reply, Frasure
argued that he timely filed his motion on December 15, not December 16.
On October 22, 2009, the circuit court entered an order and judgment
granting Frasure’s motion for a corrected judgment and awarding him $3,258.00,
interest, and costs. This appeal follows.1
On appeal, Holland continues to argue that Frasure’s motion for a corrected
judgment was untimely and that, accordingly, the circuit court lacked jurisdiction
to enter the October 22, 2009, order. Holland also addresses the merits of the
summary judgment motion, including the existence of material issues of fact, the
statute of frauds, Frasure’s failure to fulfill the requirements of the purchase
contract, and lack of consideration. In his brief, Frasure argues that Holland is
limited to arguing the jurisdictional issue as that was the only issue preserved in his
prehearing statement. Therefore, Frasure only addressed that issue. In his reply
brief, Holland urges this Court to treat Frasure’s failure to address his remaining
arguments as a waiver of any objection and to accept his statements of the facts
and applicable law.
We shall first address the timeliness of Frasure’s motion for a corrected
judgment. Frasure concedes in his brief that the motion was a CR 59.05 motion to
alter, amend, or vacate. CR 59.05 provides as follows: “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.” (Emphasis added.) The
1
We note that Holland’s counterclaim is still pending; therefore, the circuit court included the
necessary language to make the judgment final and appealable pursuant to CR 54.02.
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operative date in the statute is clearly the date the motion was served, not the date
the motion was filed. See also Huddleston v. Murley, 757 S.W.2d 216 (Ky. App.
1988).
In the present case, the circuit court clerk entered the order at issue on
December 4, 2008. At that point, the ten-day period began to run. CR 6.01
addresses the computation of time and provides, in pertinent part:
In computing any period of time prescribed or allowed by
these rules, by order of court, or by an applicable statute,
the day of the act, event or default after which the
designated period of time begins to run is not to be
included. The last day of the period so computed is to be
included, unless it is a Saturday, a Sunday or a legal
holiday, in which event the period runs until the end of
the next day which is not a Saturday, a Sunday or a legal
holiday.
The tenth day was December 14th, which was a Sunday that year. By operation of
CR 6.01, Monday, December 15th was the tenth day for purposes of any
computation of time. The certificate of service on Frasure’s motion for a corrected
judgment shows that it was served on December 15, 2008. Therefore, pursuant to
CR 59.05 and CR 6.01, the motion was timely served, and it was properly filed on
December 16, 2008. Accordingly, the circuit court retained jurisdiction to amend
its initial judgment. 2
2
Despite our ruling on this issue, we must express our concern with the apparent actions of the
clerk in stamping the motion with inconsistent filing dates. However, that issue is rendered moot
in light of our holding that the date of service controls in this instance, and we note that there is
no discrepancy in the record as to the date the motion was served. Because the motion was
timely served pursuant to CR 59.05, the circuit court retained jurisdiction to rule on the motion.
Had the date of filing been an actual issue and not mooted by operation of the applicable civil
rule, we likely would have been compelled to vacate this matter to the circuit court for a
determination of the correct filing date and the circumstances surrounding the discrepancy in the
date the motion was filed.
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This issue is also the subject of a motion to correct the record on appeal,
which was passed to the merits panel on July 16, 2010. Based upon our holding
that the motion was timely served on December 15, 2008, Frasure’s motion to
correct the record is unnecessary. Therefore, we have denied as unnecessary the
passed motion to correct the record by separate order entered this date.
Next, we shall address Frasure’s argument that Holland is limited to arguing
the jurisdictional issue (whether the motion for a corrected judgment was timely
filed), as he claims it is the only issue Holland properly preserved for review in his
prehearing statement. CR 76.03(8) states that “[a] party shall be limited on appeal
to issues in the prehearing statement except that when good cause is shown the
appellate court may permit additional issues to be submitted upon timely motion.”
The Supreme Court of Kentucky in Capital Holding Corp. v. Bailey, 873 S.W.2d
187 (Ky. 1994), stressed that “failure to observe strict compliance with CR 76.03 is
not jurisdictional. This being so, the question is one of substantial compliance with
appropriate sanctions primarily dependent upon whether and what prejudice
resulted to the opposing party.” Id. at 197. The Court went on to state that the
sanctions provided for in the rule do not “justify a hypertechnical reading of the
statement of issues requirement in CR 76.03(3)(i) [now (h)].” Id. However, an
appellant is still required to actually list the issues that are to be raised in the brief
in order to substantially comply with the rule.
In Sallee v. Sallee, 142 S.W.3d 697 (Ky. App. 2004), this Court reviewed a
judgment in a domestic case. The appellant listed four issues for appeal in his
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prehearing statement, which addressed whether the trial judge should have recused
himself, the split in custody, the method of child support payment, and the Friend
of the Court function. The sole issue the appellant addressed in his brief was
whether the trial court abused its discretion in awarding maintenance. The Court
held that, “[s]ince that issue was not raised either in the prehearing statement or by
timely motion seeking permission to submit the issue for ‘good cause shown,’ CR
76.03(8), this matter is not properly before this court for review.” Id. at 698. See
also Florman v. MEBCO Ltd. P’ship, 207 S.W.3d 593 (Ky. App. 2006).
In the present case, Holland presented the following language as his “[b]rief
statement of facts, claims, defenses and issues litigated”: “Holland sold trailer to
Frasure. Frasure didn’t pay for trailer. Trailer was wrecked. Frasure demanded ½
the insurance proceeds to endorse check. Frasure sued for ½ of check, Holland
sued for price of trailer.” In the section directing him to list “issues proposed to be
raised on appeal,” Holland stated: “Judgment on Frasure’s claim was entered in
Holland favor. Eleven days later Frasure moved to alter amend or vacate. Court
was correct the first time, lost jurisdiction.” Frasure contends that Holland’s listing
of the issues on appeal was not sufficient to preserve anything but the jurisdictional
issue. While admitting that the prehearing statement was “perhaps not artfully
stated,” Holland contends that the prehearing statement as a whole adequately
encompassed issues relating to the merits of the summary judgment ruling as well
as the jurisdictional issue.
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This is a close call, but we hold that Holland has not substantially complied
with CR 76.03(8) and, therefore, has failed to preserve his argument relating to the
merits of the summary judgment ruling by merely including the phrase “Court was
correct the first time[.]” In fact, Holland even admitted in his reply brief that he
had “not artfully stated” the issues in his prehearing statement. In order to
adequately preserve those issues, Holland should have specifically stated that he
was appealing the merits of the circuit court’s ruling, in addition to the timeliness
issue, which had been properly preserved in his prehearing statement.
Accordingly, we decline to review the remaining issues in Holland’s brief.
For the foregoing reasons, the order and judgment of the Floyd Circuit Court
is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Earl M. McGuire
Prestonsburg, Kentucky
Lee A. Smith
Prestonsburg, Kentucky
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