MUDD (BARBARA J.) VS. DEUTSCHE BANK NATIONAL TRUST COMPANY
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RENDERED: MARCH 18, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001028-MR
BARBARA J. MUDD
v.
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NO. 07-CI-03319
DEUTSCHE BANK NATIONAL
TRUST COMPANY
APPELLEE
OPINION AND ORDER
DISMISSING
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BEFORE: DIXON AND MOORE, JUDGES; ISAAC,1 SENIOR JUDGE.
ISAAC, SENIOR JUDGE: Barbara J. Mudd appeals from a Kenton Circuit Court
order which granted summary judgment to Deutsche Bank National Trust
Company in a foreclosure action. The order does not resolve all of the claims
amongst the parties in this action and it does not contain the recitations mandated
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Senior Judge Sheila R. Isaac sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
by Kentucky Rules of Civil Procedure (CR) 54.02(1). Consequently, we must
dismiss this appeal.
On November 1, 2007, Deutsche Bank National Trust Company
instituted foreclosure proceedings in Kenton Circuit Court against Lawrence K.
Mudd and Barbara J. Mudd. Deutsche Bank claimed that the Mudds had failed to
pay the amounts due under the terms of a note which they executed in 1990. The
note was in the amount of $90,000, secured by a mortgage on property located in
Fort Mitchell, Kentucky. The Mudds are now divorced.
Barbara Mudd filed a pro se answer on December 4, 2007, in which
she generally denied the allegations of the complaint and asserted the following
defenses: that Deutsche Bank had violated the Real Estate Settlement Procedures
Act; the Fair Debt Collection Practices Act; engaged in predatory lending
practices; had committed fraud, misrepresentation, tortious conduct and breach of
contract; and had violated Kentucky’s banking and insurance statutes and federal
banking and insurance regulations. Lawrence K. Mudd, also acting pro se, filed an
almost identical answer on December 20, 2007.
Deutsche Bank moved the court for summary judgment on February
24, 2009. On May 1, 2009, the court entered an order granting the motion as to
Barbara and granting partial summary judgment against Lawrence on one issue
only, relating to a law firm’s alleged conflict of interest. Deutsche Bank was
denied summary judgment as to Lawrence on thirteen other issues, including the
applicability of the Fair Debt Collection Procedures Act; the amount and selection
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of forced-place insurance; and the refusal of payments following default. This
appeal by Barbara followed.
The Kentucky Rules of Civil Procedure (CR) specify which orders are
subject to review on appeal. CR 54.01 defines a judgment as follows:
A judgment is a written order of a court adjudicating a
claim or claims in an action or proceeding. A final or
appealable judgment is a final order adjudicating all
the rights of all the parties in an action or proceeding,
or a judgment made final under Rule 54.02. Where the
context requires, the term “judgment” as used in these
rules shall be construed “final judgment” or “final order.”
(Emphasis supplied.) In the case before us, the circuit court’s order did not
adjudicate all the rights of all the parties in the action because summary judgment
was not granted to Lawrence on numerous claims. We must turn, then, to CR
54.02(1), which addresses situations involving multiple claims or parties:
When more than one claim for relief is presented in an
action, whether as a claim, counterclaim, cross-claim, or
third-party claim, or when multiple parties are involved,
the court may grant a final judgment upon one or more
but less than all of the claims or parties only upon a
determination that there is no just reason for delay. The
judgment shall recite such determination and shall recite
that the judgment is final. In the absence of such recital,
any order or other form of decision, however designated,
which adjudicates less than all the claims or the rights
and liabilities of less than all the parties shall not
terminate the action as to any of the claims or parties, and
the order or other form of decision is interlocutory and
subject to revision at any time before the entry of
judgment adjudicating all the claims and the rights and
liabilities of all the parties.
The Kentucky Supreme Court has explained how CR 54.02 operates:
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In any case presenting multiple claims or multiple
parties, CR 54.02 . . . , vests the trial court - as the
tribunal most familiar with the case - with discretion to
release for appeal final decisions upon one or more, but
less than all, claims in multiple claims actions. In such a
case, the trial court functions as a dispatcher. If the trial
court grants a final judgment upon one or more but less
than all of the claims or parties, that decision remains
interlocutory unless the trial court makes a separate
determination that there is no just reason for delay. And
the trial court’s judgment shall recite such
determination and shall recite that the judgment is final.
Watson v. Best Financial Services, Inc., 245 S.W.3d 722, 726 (Ky. 2008) (internal
citations and quotation marks omitted).
These recitations on the part of the trial court are mandatory:
For the purpose of making an otherwise interlocutory
order final and appealable, the trial court is required to
determine “that there is no just reason for delay,” and the
judgment must recite this determination and also recite
that the judgment is final. CR 54.02(1). The omission of
one of these requirements is fatal.
Hale v. Deaton, 528 S.W.2d 719, 722 (Ky. 1975).
In this case, the circuit court order granting summary judgment to
Barbara and partial summary judgment to Lawrence did not contain these
mandatory recitations. Therefore, the order is interlocutory and unappealable.
Accordingly, this appeal is dismissed.
ALL CONCUR.
ENTERED: March 18, 2011
/s/
Sheila Isaac
SENIOR JUDGE, COURT OF APPEALS
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Barbara J. Mudd, pro se
Batesburg, South Carolina
Kimberlee S. Rohr
Cincinnati, Ohio
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