Opinion
NO. 2013-CA-000330-MR
03-13-2015
EAGLE CAPITAL MANAGEMENT, LLC; FORTRESS PROPERTIES, LLC; AND THE OAKS OF LONDON, INC. APPELLANTS v. MOHAMMED ANWAR AND REHANA CHOUDHRY, HIS WIFE; CARLITO AXIBAL; CHRIS HACKER; WILLIAM CHANEY AND MILLIE CHANEY, HIS WIFE; DAVID CORNETT; BOB GROSS; DARRELL GROSS AND BETTY GROSS, HIS WIFE; FRANK GUAGENTI AND MICHELLE GUAGENTI, HIS WIFE; RODNEY HENDRICKSON AND ALICE HENDERICKSON, HIS WIFE; GLENN HUFFMAN AND LORETTA HUFFMAN, HIS WIFE; ERIC JOHNSON AND CYNTHIA JOHNSON, HIS WIFE; JAMES LEWIS; FREDDIE MAGGARD AND SINIA MAGGARD, HIS WIFE; OSCAR MCGEE AND LINDA MCGEE, HIS WIFE; PEGGY MORRIS; MICHAEL MURPHY AND DIANE MURPHY, HIS WIFE; FLOYD PRICE; MAZHAR SALIM AND NIDA SALIM, HIS WIFE; WILLARD SERGENT AND LINDA SERGENT, HIS WIFE; SHAHZAD SHAHMALIK AND SABA SHAHMALAK, HIS WIFE; ROY SHARP AND SUE SHARP, HIS WIFE; RICHARD SKRIP AND LUCILLE SKRIP, HIS WIFE; BRYAN WALTER AND SUE WALTER, HIS WIFE APPELLEES
BRIEF FOR APPELLANTS: David Jorjani Corbin, Kentucky BRIEF FOR APPELLEE, CHRIS HACKER: Michael E. Hammond Lexington, Kentucky BRIEF FOR APPELLEES, MICHAEL AND DIANE MURPHY: David O. Smith Larry Brandon West Corbin, Kentucky BRIEF FOR APPELLEES, CARLITO AXIBAL; WILLIAM CHANEY AND MILLIE CHANEY, HIS WIFE; DAVID CORNETT; BOB GROSS; DARRELL GROSS AND BETTY GROSS, HIS WIFE; RODNEY HENDRICKSON AND ALICE HENDERICKSON, HIS WIFE; GLENN HUFFMAN AND LORETTA HUFFMAN, HIS WIFE; ERIC JOHNSON AND CYNTHIA JOHNSON, HIS WIFE; FREDDIE MAGGARD AND SINIA MAGGARD, HIS WIFE; PEGGY MORRIS; FLOYD PRICE; MAZHAR SALIM AND NIDA SALIM, HIS WIFE; WILLARD SERGENT AND LINDA SERGENT, HIS WIFE; SHAHZAD SHAHMALIK AND SABA SHAHMALAK, HIS WIFE; ROYSHARP AND SUE SHARP, HIS WIFE; RICHARD SKRIP AND LUCILLE SKRIP, HIS WIFE: Darrell L. Saunders Corbin, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE GREGORY LAY, JUDGE
ACTION NO. 09-CI-00458
OPINION
AFFIRMING
BEFORE: KRAMER, J. LAMBERT, AND NICKELL, JUDGES. KRAMER, JUDGE: Eagle Capital Management, LLC, Fortress Properties, LLC, and The Oaks of London, Inc., appeal an October 17, 2012 order of the Laurel Circuit Court dismissing a collection action they filed against the above-captioned appellees on the basis of Kentucky Civil Rule of Procedure (CR) 41.02(1), the rule that authorizes a trial court to involuntarily dismiss an action for lack of prosecution. The rule states, in its entirety: "For failure of the plaintiff to prosecute or to comply with these rules or any order of the court, a defendant may move for dismissal of an action or of any claim against him." Id. Upon review, we affirm.
The relevant factual and procedural history of this matter was accurately summarized by the circuit court in a January 16, 2013 order it entered to overrule the appellants' motion for reconsideration of the October 17, 2012 order. The January 16, 2013 order provides in pertinent part as follows:
This action was filed on April 20, 2009, wherein the plaintiffs, Eagle Capital Management, LLC, Fortress Properties, LLC and The Oaks of London, Inc. (hereinafter "Eagle Capital"), filed suit against several residents of a subdivision in Laurel County commonly known as The Oaks of London. The Complaint alleges that the defendant residents of the subdivision are obligated but have refused to pay a "maintenance fee" which is used for the "maintenance and/or installation of streets, street lighting, signage, landscaping and other amenities common to the development." The resident defendants have consistently maintained throughout this litigation that they are not legally obligated to pay any kind of "maintenance fee."
The Hon. Jason Scott Kincer filed the Complaint on behalf of the plaintiffs, and on June 12, 2009, the Hon. Gary W. Napier entered his appearance as co-counsel for plaintiffs. Prior to Mr. Napier's entry of appearance, plaintiff had filed a motion for protective order and motion for extension of time to respond to discovery, and on July 8, 2009, the Court entered an Order sustaining those motions and allowing 60 days to respond to discovery.
On May 13, 2009, defendant Chris Hacker filed an Answer to Complaint by and through his attorney, Hon. Michael E. Hammond. On May 18, 2009, defendants Michael and Diane Murphy filed an Answer and Counterclaim by and through their attorney, Hon. David O. Smith. On May 28, 2009, the Hon. Darrell L. Saunders filed a Separate Answer and Counterclaim on behalf of several other defendants.
On May 13, 2009, defendant Chris Hacker filed an Answer to Complaint by and through his attorney, Hon. Michael E. Hammond. On May 18, 2009, defendants Michael and Diane Murphy filed an Answer and Counterclaim by and through their attorney, Hon. David
O. Smith. On May 28, 2009, the Hon. Darrell L. Saunders filed a Separate Answer and Counterclaim on behalf of several other defendants.
On August 9, 2009, the plaintiff answered some discovery, but on August 19, 2009, the Murphys filed motions for contempt, to compel and for sanctions, and same were noticed for hearing on September 11, 2009. Hacker filed a similar motion on August 21, 2009, and on September 7, 2009, attorney Saunders filed motions on behalf of his several clients to dismiss the Complaint, and for a default judgment on the Counterclaim for failure of the plaintiff to respond to same.[] All of the defendants complained in their motions that plaintiff had failed to adequately and in good faith answer the discovery as had been previously ordered on July 8, 2009.
On September 11, 2009, a Motion for Continuance was filed on behalf of the plaintiffs by Hon. David Jorjani seeking to continue the hearings on the scheduled motions as Mr. Jorjani had just entered his appearance on behalf of the plaintiffs.[] All defendants thereafter re-noticed their pending motions for hearing on October 9, 2009, and on September 14, 2009 an Agreed Order of Substitution was entered acknowledging Mr. Jorjani's entry of appearance, and relieving Mr. Kincer and Mr. Napier.
Significantly, on October 16, 2009, the Court entered an Order finding that the plaintiff had violated the Court's Order of July 8, 2009, and the Court ordered sanctions against the plaintiff in favor of each defendant in the amount of $250.00 for ". . . failure of the plaintiffs to adequately respond to the discovery requests."
On August 17, 2010, the Court entered an Order Setting Pretrial Conference on December 10, 2010. On December 2, 2010, the plaintiffs filed a Motion To Mediate. From the Pretrial Conference this Court issued an Order on December 14, 2010, setting this matter for trial on July 20, 2011.[FN]
[FN] The Court generally orders mediation at the pretrial conference, but that was not done at the pretrial of December 10, 2010. The record does not reveal why that was not done, but the Court believes that defendants mentioned an intention to file dispositive motions, and generally objected to mediation until rulings were made on dispositive motions.
On May 3, 2011, defendant Murphy filed a Motion For Partial Summary Judgment. On May 23, 2011, Hon. T. Bruce Simpson, Jr., filed a Statement In Support of Postponing Trial Date. On June 13, 2011, the Court entered an Order relieving Mr. Jorjani and substituting Mr. Simpson as counsel for plaintiff.[] The Order also established a briefing schedule on the summary judgment motions and the issue of whether the trial should be continued. On July 12, 2011, the Court entered an Order that continued the trial of July 20, 2011, and reassigned the matter for pretrial conference on September 9, 2011.
The parties thereafter filed their respective briefs on the motions for summary [judgment], and on July 20, 2011 the Court entered a 27 page Order Denying In Part And Granting In Part Defendant's Motion for Summary Judgment. In the Order the Court essentially overruled the defendants' motions for summary judgment wherein the defendants challenged the validity of the maintenance fee, and overruled the defendants' assertion that the original developer had no right to assign its rights and duties under the covenant to another developer. The Court did agree with the defendants that no portion of the maintenance fee may be collected and used towards
maintenance of the golf course. Various issues were identified as remaining open for determination. Simultaneous with the Order a separate Order was entered directing the parties to mediation.
On December 19, 2011, the Murphys filed a motion for reimbursement of their costs for mediation, and for attorney fees, for failure of the plaintiffs to attend mediation in good faith. On March 19, 2012, the Murphys also filed motions to dismiss and for attorney fees for plaintiffs' lack of prosecution and for their failure to mediate. The motion was noticed for hearing on April 13, 2012. Prior to that hearing, the plaintiff filed a motion to amend its Complaint to add 222 additional parties, namely, the remaining owners of lots in the subdivision.
At the hearing of April 13, 2012 the Court overruled Murphy's [sic] motion to dismiss for lack of prosecution, and the Court sustained plaintiffs' motion to amend to bring in the additional parties. At the hearing it was agreed that a status conference should be held to check service on the numerous new defendants, and that was set for July 13, 2012 at 1:00 p.m. Counsel for the plaintiff was directed to draft and tender the order reflecting all of the Court's rulings. An Order was tendered, and subsequently entered on April 14, 2012 setting the case for status conference on July 13, 2012 at 1:00 p.m.[FN]
Upon review of the record, the Court is unable to find any indication that plaintiffs' counsel tendered the Order requested at the April 13, 2012 hearing. This Order requested by the Court would have included all rulings on April 13, 012, including the ruling that the Court sustained plaintiffs' motion to amend to add additional parties.[]
On July 6, 2012, Hon. T. Bruce Simpson, Jr., filed a Motion To Withdraw on the grounds that he had changed law firms and there was a conflict with his new firm and one of the defendants.[] The motion requested 30 days for plaintiff to obtain new counsel. The motion was noticed for hearing on July 13, 2012 at 1:00 p.m. Since this motion was on the 1:00 p.m. docket, it was conducted in chambers, off the record. It is believed that the motion was orally sustained at the hearing of July 13, 2012. There is an Order in the record signed by the Court on July 13, 2012, sustaining the motion to withdraw and allowing 30 days for new counsel, but for whatever reason that Order was not entered until August 14, 2012.
On September 10, 2012, the Murphys filed a Motion to Dismiss which was noticed for hearing on September 14, 2012. No one appeared for the plaintiff, or otherwise responded, and the motion was sustained at the hearing. On September 17, 2012, Chris Hacker filed a Motion To Dismiss that was noticed for hearing on October 12, 2012. On September 19, 2012, Hon. David Jorjani filed an Entry of Appearance on behalf of the plaintiff. On September 25, 2012, Mr. Jorjani filed a Motion For Status Conference and noticed same for hearing on October 12, 2012. On October 5, 2012, the Court entered its Order dismissing the Murphys consistent with [the]
Court's previous ruling of September 14, 2012. The dismissal was specified to be without prejudice.[]
The case was called around on October 12, 2012, on the various motions, and present were all counsel for the defendants, but no one appeared on behalf of the plaintiffs. The defendant Hacker's Motion To Dismiss was therefore sustained. Hon. Darrel Saunders, on behalf of his clients, then moved orally to dismiss his clients with prejudice, and the Murphys by and through their counsel moved to amend the Court's Order of October 5, 2012, to reflect a dismissal with prejudice, and both motions were sustained. An Order reflecting these rulings was entered on October 17, 2012. The plaintiff has subsequently filed motions to vacate the orders of dismissal, and it is that motion that will be addressed by this order.[FN]
It should be noted that the procedural history cited by the Court does not include a description or summary of each and every pleading in this case. Rather, the procedural summary attempts to reveal enough of the procedural history to reflect an accurate chronology of significant events in this case. The Court has, however, considered the record in its entirety.
The standards for trial courts to consider in determining whether to dismiss pursuant to CR 41.02 were specifically enumerated in the case of Ward v. Housman, 809 S.W.2d 717, 719 (Ky. App. 1991), as follows: 1) the extent of the party's personal responsibility; 2) the history of dilatoriness; 3) whether the attorney's conduct was willful and in bad faith; 4) meritoriousness of the
claim; 5) prejudice to the other party; and 6) alternate sanctions.
The Kentucky Supreme Court has since clarified the issue in the case of Jaroszewski v. Flege, 297 S.W.3d 24 (Ky. 2009), wherein it is acknowledged that cases like Ward are helpful in providing guidance for trial courts, but that there should not be a mechanically applied formula in the consideration:
There is no absolute right to dismissal for a plaintiff's failure to prosecute and no exact rule can be laid down as to when a court is justified in dismissing a case for the plaintiff's failure to prosecute or for delay in prosecuting his or her action; each case must be looked at with regard to its own peculiar procedural history and the situation at the time of dismissal (emphasis added).
Id. at 32 (quoting from 24 Am. Jur. 2d Dismissal, Discontinuance and Nonsuit § 63 [2009]).
The Court has fully considered and applied both of the above cases in making the decision that follows in this opinion.
In this case the plaintiff violated the Court's Order by not having counsel in place within the time prescribed by the Order. On July 6, 2012, Hon. T. Bruce Simpson, Jr., filed a Motion To Withdraw because he had changed firms. Mr. Simpson spent some time trying to secure appropriate conflict waivers, but was ultimately unable to secure all of the necessary waivers. It must therefore be presumed that Mr. Simpson had been in communications with the plaintiff about his potential withdrawal well prior to when the motion was filed on July 6, 2012.
On July 15, 2012, the Court sustained the motion to withdraw and gave the plaintiff 30 days to obtain new counsel. Presumably, Mr. Simpson communicated this fact to the plaintiff at or near the time the ruling was made. The actual Order was not entered until August 14,
2012, but the Entry of Appearance of new counsel was not filed until September 19, 2012, and this only after a September 14, 2012 court date was missed by the plaintiff.
In this instance, obtaining new counsel in a timely manner in compliance with the Court's Order was a matter that fell squarely on the shoulders of the plaintiff, and failing to do so was the plaintiff's personal responsibility.
Then on October 12, 2012, the case was called around for various motions, including a motion for status filed by the plaintiff. When the case was called all of the defendants were present by and through their respective counsel, yet plaintiffs' counsel was not present. Counsel indicated in subsequent hearings that due to traffic congestion he did arrive later, after the hearing, and after certain other of the counsel had left the courtroom. The Court must state that the courtroom was full of attorneys who had arrived at court in a timely manner. The Court certainly does not conclude that counsel's conduct was willful or in bad faith, such is not the case. However, all attorneys are expected and required to appear in court in a prompt and timely manner.
Another factor that has weighed heavily in favor of dismissal in this case is a history of dilatoriness. On October 16, 2009, the Court entered an Order finding that plaintiff had violated a previous order pertaining to discovery, and sanctions were ordered against the plaintiff in the amount of $250.00. The plaintiff argues that in this instance sanctions should be imposed in lieu of dismissal, but since previous sanctions have been imposed it seems futile to impose additional sanctions at this point. As such, the Court does not deem alternate sanctions available, advisable or appropriate in light of this case's previous history.
To summarize, when the defendants appeared in court on October 12, 2012, the Court was faced with the following: 1) A history of dilatoriness (violation of a previous Court Order with sanctions); 2) violation of a
current Court Order (failing to secure counsel in a timely manner); 3) two consecutive missed court appearances (September 14, 2012 and October 12, 2012); and 4) numerous defendants begging for dismissal in light of 1), 2) and 3) mentioned above. This was the "situation at the time of dismissal" faced by the Court, and the Court felt at that time, and continues to maintain, that dismissal with prejudice was and is the appropriate and just remedy in this matter.[FN]
Plaintiff argues that the case should not be dismissed because it has merit and because the greater good of the community would be better served by continuing the litigation. It is true that certain, but not all, aspects of plaintiffs' claim has merit as can be gleaned from the Court's Order of July 20, 2011. Indeed, the good of the community argument has some appeal, but the community is not before the Court. Only the present litigants are before the Court, and the Court is bound to decide this case based only upon the duties, rights and responsibilities of the litigants before it. To be sure, the decision herein is not an adjudication on its merits, and has no binding application to any litigant who is not currently before the Court. A global and final solution would have been nice, but the plaintiffs have placed this particular case in a posture making that impossible, at least with this particular case.
For all of the foregoing reasons, plaintiffs' motion to set aside the Court's Order of October 17, 2012 is OVERRULED.
To be clear, all of the defendants including the Murphys moved for default judgment at this point in time. As the circuit court's order tends to indicate, the basis of their motions was Kentucky Rule of Civil Procedure (CR) 37.02(2)(c), which permits default judgment as a sanction for disobedient discovery conduct.
The record does not disclose why the plaintiffs retained a new attorney to represent them at this time.
The record does not disclose why the plaintiffs retained a new attorney to represent them at this time.
In the circuit court's October 17, 2012 order of dismissal, another reason cited in support of the plaintiffs' dilatoriness was "that at two (2) status conferences on September 9, 2011 and January 13, 2012 the plaintiffs advised the Court and other parties that they intended to prosecute an amended complaint but that they have failed to do so."
During the November 9, 2012 oral arguments on the plaintiffs' motion for reconsideration, the plaintiffs (by and through Mr. Jorjani, the most recent of the plaintiffs' five successive attorneys over the course of this threeyear litigation) explained that they still had not prosecuted their amended complaint, which they had filed of record on April 12, 2012, because they had been waiting for the circuit court to enter an order granting them leave to file and prosecute it. The court then reminded the plaintiffs—and it is uncontested—that it had already conducted a hearing and had orally granted their motion on April 13, 2012; and, that upon granting their motion, it had instructed the plaintiffs' fourth successive attorney, T. Bruce Simpson, to draft and tender an order to that effect. It is also uncontested that T. Bruce Simpson failed to do so before withdrawing as the plaintiffs' counsel.
Simpson's motion to withdraw specified that his change in law firms had resulted in a conflict of interest "with one or more of the existing Defendants[.]" This is contrary to what the appellants have represented in their brief, which is that Simpson withdrew due to a conflict of interest that might have arisen if one or more of the 222 remaining Oaks of London residents had been added as party defendants.
To be sure, the Murphys' motion did not specify whether they were seeking a dismissal with or without prejudice, but their tendered order designated the dismissal as being "with prejudice." Nevertheless, the circuit court determined that only a dismissal "without prejudice" was warranted at the time because, as it stated in its October 4, 2012 order to that effect, "that issue was not argued or addressed at the hearing" and "since the dismissal standards outlined in Jaroszewski v. Flege, 297 S.W.3d 24 (Ky. 2009) have not been addressed, the dismissal herein must be without prejudice."
Having reviewed the circuit court's order, and with it the relevant procedural history of this case, we will now address the appellants' arguments.
The appellants' opening argument, as set forth in their brief, is as follows:
In this case, the trial court initially dismissed the Appellants' cases against all defendants and Appellees at the October 12, 2012 motion hearing. What is remarkable is that the only matter before the trial court on that day was the Motion to Dismiss filed on behalf of Appellee Chris Hacker for "abandoning the litigation" (Record at 1772-1773). However, Appellees' counsel convinced the trial court that all defendants (222 of which were not before court that day) should be dismissed as they were "begging for dismissal" (Record at 1845). This reading of Flege would permit a trial court to violate a fundamental tenant of American jurisprudence—the right to be heard. The right to be heard incorporates the right to notice and the opportunity to be heard by the trial court. Neither was afforded to the Appellants in the dismissals with prejudice of the twenty-nine (29) cases remaining on the docket, nor the two hundred twenty-two (222) not present. For the above reason, the case should be REVERSED and REMANDED with instructions to reinstate the cases against the Appellees represented by Hon. Saunders and REMANDED as to the 222 defendants not before the court.
The first point of this argument takes umbrage with the circuit court's decision to dismiss all of the appellants' claims against all of the above-captioned appellees at the October 12, 2012 hearing per CR 41.02. The appellants apparently believe this was inappropriate because the only motion that was scheduled to be heard by the circuit court on that date was Chris Hacker's motion for dismissal with prejudice for failure to prosecute.
However, the circuit court did not order dismissal regarding these other appellees sua sponte. Rather, the other appellees asserted the same grounds for dismissal as Hacker and orally joined his CR 41.02 motion at the October 12, 2012 hearing; and, in doing so, they sufficiently invoked CR 41.02 with respect to the appellants' claims against themselves. See CR 7.02 (requiring that motions be made either in writing or orally during a hearing or trial); see also Fuqua v. Fluor-Daniel Illinois, Inc., No. 2012-CA-002179-MR, 2014 WL 7006160 at *3 (Ky. App. Dec. 12, 2014) (during a hearing regarding one defendant's written motion to dismiss with prejudice for failure to prosecute, other defendants effectively invoked CR 41.02 in their own right, and without the necessity of filing written motions, by orally joining and adopting the same grounds specified in the written motion that had been filed and noticed). Indeed, the appellants have identified no authority which prohibited dismissal with prejudice based on the oral motions of these other appellees.
The circuit court is not authorized to order involuntary dismissal with prejudice absent a motion by a defendant. CR 41.02(1); Wildcat Prop. Mgmt., LLC v. Reuss, 302 S.W.3d 89, 92 (Ky. App. 2009).
For this proposition of law, we find Fuqua factually identical to this case, persuasive authority, and proper to cite as it fulfills the criteria of Civil Rule (CR) 76.28(4)(c).
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The second point of this argument appears to be that the circuit court's order improperly dismissed claims against 222 defendants who never moved for dismissal. However, this merely reflects a misunderstanding on the appellants' part. To be clear, the only parties who were ever defendants below were the above-captioned appellees. As the circuit court's order notes, the appellants intended to join 222 other individuals to their lawsuit (i.e., the remaining residents of The Oaks of London) and even filed an amended complaint to that effect. But, summons was never issued regarding those 222 individuals. Those individuals were never served with process. Consequently, the circuit court could not have dismissed any of those 222 individuals from this litigation because those individuals were never parties to it. See generally CR 4; see also R.F. Burton & Burton Tower Co. v. Dowell Div. of Dow Chemical Co., 471 S.W.2d 708, 711 (Ky. 1971) ("One who is not served with process does not have the status of a party to the proceeding." (Quoting 42 Am.Jur. 8, Process, § 4)).
The next argument the appellants make is that the circuit court did not adequately analyze all of the six factors described in Ward v. Housman, 809 S.W.2d 717 (Ky. App. 1991), relating to dismissals pursuant to CR 41.02. Those factors are: (1) the extent of the party's personal responsibility; (2) the history of dilatoriness; (3) whether the attorney's conduct was willful and in bad faith; (4) meritoriousness of the claim; (5) prejudice to the other party; and (6) alternative sanctions. Id. at 719.
As explained by the circuit court, however, the Ward factors are not elements of a mandatory legal test. They are simply guidelines which may or may not be applicable depending upon the specific circumstances of a particular case. Jaroszewski v. Flege, 297 S.W.3d 24, 33 (Ky. 2009). Instead, the appropriate inquiry is whether the circuit court based its "decision to dismiss under CR 41.02 upon the totality of the circumstances," taking into consideration all relevant factors, which may or may not include some or all of the Ward factors. Jaroszewski, 297 S.W.3d at 36. This standard requires the circuit court to "make explicit findings on the record so that the parties and appellate courts will be properly apprised of the basis for" its ruling; "and the appellate courts can assess whether the trial court properly considered the totality of the circumstances in dismissing the case." Id. Here, the circuit court clearly considered the totality of the circumstances and amply set forth its reasoning for dismissing the appellants' claims with prejudice for failure to prosecute.
The last argument the appellants make is that the circuit court's order represented an abuse of discretion. However, the test for abuse of discretion, the deferential standard under which CR 41.02 orders are reviewed, is not whether we would have reached a different conclusion if faced with the same set of facts. See Church & Mullins Corp. v. Bethlehem Minerals Co., 887 S.W.2d 321 (Ky. 1992). It is whether the circuit court's decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000). And, in light of the circumstances detailed above, we cannot say that the circuit court's decision represented such an abuse.
In light of the foregoing, the decision of the Laurel Circuit Court is AFFIRMED.
ALL CONCUR. BRIEF FOR APPELLANTS: David Jorjani
Corbin, Kentucky
BRIEF FOR APPELLEE, CHRIS
HACKER:
Michael E. Hammond
Lexington, Kentucky
BRIEF FOR APPELLEES,
MICHAEL AND DIANE MURPHY:
David O. Smith
Larry Brandon West
Corbin, Kentucky
BRIEF FOR APPELLEES,
CARLITO AXIBAL; WILLIAM
CHANEY AND MILLIE
CHANEY, HIS WIFE; DAVID
CORNETT; BOB GROSS;
DARRELL GROSS AND BETTY
GROSS, HIS WIFE; RODNEY
HENDRICKSON AND
ALICE HENDERICKSON, HIS
WIFE; GLENN HUFFMAN AND
LORETTA HUFFMAN, HIS WIFE;
ERIC JOHNSON AND CYNTHIA
JOHNSON, HIS WIFE; FREDDIE
MAGGARD AND SINIA
MAGGARD, HIS WIFE; PEGGY
MORRIS; FLOYD PRICE;
MAZHAR SALIM AND NIDA
SALIM, HIS WIFE; WILLARD
SERGENT AND LINDA SERGENT,
HIS WIFE; SHAHZAD
SHAHMALIK AND SABA
SHAHMALAK, HIS WIFE;
ROYSHARP AND SUE SHARP, HIS
WIFE; RICHARD SKRIP AND
LUCILLE SKRIP, HIS WIFE:
Darrell L. Saunders
Corbin, Kentucky