Opinion
NO. 2014-CA-002038-MR
04-22-2016
ESTATE OF ROY CAMPBELL, BY AND THROUGH ITS CO-EXECUTRIX and CO-EXECUTOR, JUNE C. ISON and PAUL MICHAEL ISON APPELLANT v. M & T LOGGING, INC. APPELLEE
BRIEF FOR APPELLANT: Charles Allen Hazard, Kentucky BRIEF FOR APPELLEE: Phillip Lewis Hyden, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CLAY CIRCUIT COURT
HONORABLE OSCAR G. HOUSE, JUDGE
ACTION NO. 09-CI-00356 OPINION
VACATING AND REMANDING
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BEFORE: COMBS, D. LAMBERT, AND VANMETER, JUDGES. COMBS, JUDGE: The Estate of Roy Campbell, acting through its co-executrix and co-executor, seeks review of a judgment of the Clay Circuit Court entered on June 16, 2014. After our review, we vacate and remand.
On October 27, 2009, M & T Logging, Inc., filed a civil action against Roy Campbell in Clay Circuit Court. In its complaint, M & T Logging alleged that Campbell had agreed that he alone would be responsible for the restoration of a certain stream bed that he, individually, undertook to mine under a permit granted to M & T and Campbell as joint applicants. According to M & T, the cost of the restoration of the stream bed as required by federal law totaled $265,950.00. M & T sought either a judgment against Campbell for this amount or a court order requiring him to perform the necessary work in the stream bed. Campbell answered the complaint, and a period of discovery ensued.
Campbell was killed in November 2010. The lawsuit was duly and properly revived, and Campbell's estate was substituted as party defendant.
On January 30, 2012, the co-executrix and co-executor of Campbell's estate (as the sole heirs and devisees of the estate) entered into a written agreement with M & T and others. The agreement was meant to resolve "all their differences as to the development of their properties adjacent to Highway 80 from the Lowe's parking lot West to Highway 15." It also acted as a release of "all claims as a result of alleged conduct [of Roy Campbell]." As part of the agreement, M & T agreed to complete restoration of the stream bed and to dismiss, with prejudice, its action against Campbell's estate. The estate's co-executrix and co-executor acknowledged indebtedness to M & T and others in the amount of $260,000.00. The agreement recited that "the manner and time of payment of this amount has been resolved by agreement of the parties."
On February 2, 2012, an agreed order and judgment dismissing the action with prejudice were entered by the Clerk of the Clay Circuit Court. A copy of the parties' agreement was also filed in the record.
On January 27, 2014, M & T filed a motion in the cause to "redocket and enforce settlement agreement." Rather than filing a new action, M & T sought enforcement of the settlement agreement. M & T hoped to reduce to a judgment the amount of the debt described in the agreement by reference to the action that had been finalized and dismissed with prejudice in 2012.
Without addressing whether it had subject-matter jurisdiction, the circuit court rendered a judgment that was entered by the clerk on June 16, 2014. It purported to carry interest at 12% until paid. The circuit court denied a motion to reconsider, and this appeal followed.
Cambell's estate contends that the trial court erred by rendering a judgment because it lost subject-matter jurisdiction when it dismissed the case with prejudice without expressly retaining the authority to enforce the agreement or incorporating the terms of the agreement in its 2012 judgment. We agree.
The Clay Circuit Court lost jurisdiction of the subject matter of the action underlying this appeal ten days after it rendered the order dismissing M & T's claim with prejudice. Consequently, the circuit court had no jurisdiction to render the judgment of June 16, 2014. And that judgment is void. See Mathews v. Mathews, 731 S.W.2d 832 (Ky.App.1987).
Once the trial court lost jurisdiction, it was incumbent upon M & T to invoke it anew and independently of the previous action by commencing a new action, i.e., filing a complaint and issuing summons. See Pavkovich v. Shenouda, 280 S.W.3d 584 (Ky.Ct.App.2009), citing Mize v. Hughes, 994 S.W.2d 16, 18 (Ky.App.1998)("[T]he jurisdiction of a circuit court is invoked by the filing of a complaint and the issuance of a summons in accordance with CR 3."), and Paul v. Smith, 82 Ky. 451, 456, 6 Ky.L.Rptr. 531 (1885)("[A]n action is commenced by filing a petition, and causing a summons to be issued or a warning order to be made; and when once properly commenced, the jurisdiction of the court to proceed is acquired[.]").
By failing to commence an action, M & T failed to invoke the jurisdiction of the Clay Circuit Court. Consequently, the judgment entered on June 16, 2014, is void. As this Court observed in Mathews, 731 S.W.2d at 833:
The fact which renders the judgment void, "namely, the lack of jurisdiction in the court to render [it], appears on the face of the record." Commonwealth v. Jefferson County, 300 Ky. 514, 189 S.W.2d 604, 606 (1945). Such a judgment, unlike one which is merely erroneous or voidable, is not entitled to any respect or deference by the courts of the Commonwealth but instead is "open to attack anytime and any place." Grubb v. Wurtland Water District, Ky., 384 S.W.2d 321 (1964).
We vacate the order of June 16, 2014, and we remand this matter to the trial court for entry of an order dismissing this case.
ALL CONCUR. BRIEF FOR APPELLANT: Charles Allen
Hazard, Kentucky BRIEF FOR APPELLEE: Phillip Lewis
Hyden, Kentucky