Opinion
NO. 2013-CA-000357-MR
07-03-2014
SHERLEY MCDONALD AND GEANERIE H. MCDONALD APPELLANTS v. LEON PARROTT, TRUSTEE OF RICHLAND CHRISTIAN CHURCH; WILLIAM H. STEELE, TRUSTEE OF RICHLAND CHRISTIAN CHURCH; ROBERT WINE, TRUSTEE OF RICHLAND CHRISTIAN CHURCH; WAYNE BAKER, TRUSTEE OF RICHLAND CHRISTIAN CHURCH; AND GLENN W. CAMPBELL, TRUSTEE OF RICHLAND CHRISTIAN CHURCH APPELLEES
BRIEF FOR APPELLANTS: Joe T. Roberts London, Kentucky BRIEF FOR APPELLEES: David S. Hoskins Corbin, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KNOX CIRCUIT COURT
HONORABLE THOMAS L. JENSEN, JUDGE
ACTION NO. 96-CI-00383
OPINION
AFFIRMING
BEFORE: CLAYTON, COMBS AND STUMBO, JUDGES. STUMBO, JUDGE: Sherley and Geanerie McDonald appeal from an Order of the Knox Circuit Court denying their motion for CR 60.02 relief. The McDonalds contend that a new boundary survey, conducted some six years after a prior boundary dispute was resolved by the Knox Circuit Court and this Court, constitutes an adequate basis for granting the extraordinary relief provided for under CR 60.02. We conclude that the Knox Circuit Court properly determined that the new survey did not justify CR 60.02 relief from the prior Judgment, and accordingly we Affirm the Order on appeal.
The facts are not in controversy. The Richland Christian Church and the McDonalds own adjoining parcels of real property in Knox County, Kentucky, that share a common boundary. In 1996, the Church, through its trustees and Appellees herein, filed an action in Knox Circuit Court to resolve a boundary dispute with the McDonalds. By Agreed Order entered on October 25, 2002, the Court appointed a surveyor to conduct a survey and determine the boundary. On June 1, 2006, the Court accepted the survey and rendered an Order and Judgment establishing the boundary. The McDonalds appealed the Judgment to this Court, which rendered an Opinion Affirming on August 10, 2007.
On September 11, 2012, the McDonalds filed a Motion Pursuant to CR 60.02 with the Knox Circuit Court seeking to set aside the 2006 Judgment. They alleged therein that the survey upon which the Knox Circuit Court relied in 2006 "was completely and utterly erroneous, as the survey was not a proper survey", that this fact was unknown to the McDonalds in 2006 and that it came to their attention only after a new survey was conducted on or around August 13, 2012. The Motion alleged in relevant part that the prior Judgment should be declared void and a new Judgment rendered based on the new survey. The Motion specifically referred to the "fraud" and "other reasons of an extraordinary nature justifying relief" provisions of CR 60.02. The Motion further cited the dissenting opinion of Senior Judge Rosenblum, Court of Appeals, who opined that the Agreed Order entered October 25, 2002, did not establish that the parties would be bound by the original survey, that the McDonalds' right to a trial was not waived and the trial court committed reversible error in denying them this right.
On January 31, 2013, the Knox Circuit Court entered an Order Denying Defendant's Motion Pursuant to CR 60.02. In denying the Motion, the Court noted that "[t]he Defendant, apparently ignoring of the binding effect of the court opinions that concluded this matter with finality in 2007, continued to gather evidence on his own." It determined that McDonald was in effect attempting to reopen a case after an extended passage of time "simply because he was dissatisfied with the outcome[.]" The Court ultimately concluded that Mr. McDonald's reliance on a new survey some five years after the matter reached finality "fails to state an adequate basis for granting the extraordinary relief he requests and disrupting the settled judgment. His newly created evidence does not illustrate a substantial miscarriage of justice of the nature CR 60.02 was created to rectify." This appeal followed.
The Order refers to a singular Defendant, Sherley McDonald, with no reference to Geanerie H. McDonald. The CR 60.02 Motion was styled with Sherley McDonald as the sole "Defendant", but the body of the Motion employs the language "Sherley McDonald, et ux. [and wife], the original Defendants herein[.]"
The McDonalds now argue that the Knox Circuit Court erred in denying their motion for CR 60.02 relief. They maintain that once the trial court became aware through the 2012 survey that the boundary line determined in 2006 "might possibly be based on inaccurate information", the court had a duty to conduct an adversarial hearing to determine the accuracy of the previous Judgment. They cite Potter v. Eli Lilly and Co., 926 S.W.2d 449 (Ky. 1996), for the proposition that a trial court possesses the inherent power to conduct an independent investigation when there is a reasonable basis to believe that there is a possible lack of accuracy or truth in the original judgment. In sum, the McDonalds seek an Order remanding the matter for an evidentiary hearing on the CR 60.02 motion.
As the parties are well aware, CR 60.02 provides for relief from judgment based on mistake, inadvertence, excusable neglect, fraud, etc. CR 60.02 states:
On motion a court may, upon such terms as are just, relieve a party or his legal representative from its final judgment, order, or proceeding upon the following grounds: (a) mistake, inadvertence, surprise or excusable neglect; (b) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59.02; (c) perjury or falsified evidence; (d) fraud affecting the proceedings, other than perjury or falsified evidence; (e) the judgment is void, or has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (f) any other reason of an extraordinary nature justifying relief. The motion shall be made within a reasonable time, and
on grounds (a), (b), and (c) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this rule does not affect the finality of a judgment or suspend its operation.
The relief set out in subsections (a) - (c) must be brought, if at all, within one year of the judgment. Relief sought on the remaining subsections must be brought within a reasonable time. The McDonalds filed their CR 60.02 motion some six years after the final Judgment.
The McDonalds did not allege fraud (subsection d) or that the judgment was satisfied (subsection e). As such, the motion could only be prosecuted under subsection (f) based on "any other reason of an extraordinary nature justifying relief". The Knox Circuit Court determined that the McDonalds' motion failed to state an adequate basis for granting the extraordinary relief they sought, and we find no error in that determination. CR 60.02(f) must be invoked only with extreme caution, and only under the most unusual circumstances. Cawood v. Cawood, 329 S.W.2d 569 (Ky. 1959). It is implicated only when a substantial miscarriage of justice would result from the effect of the final judgment. Wilson v. Commonwealth, 403 S.W.2d 710 (Ky. 1966). A CR 60.02 Order is, by its very nature, an unusual remedy, and requires a very substantial showing to merit relief. U.S. Bank v. Hasty, 232 S.W.3d 536, 541 (Ky. App. 2007). The question before the Knox Circuit Court was whether the McDonalds' production of a new survey is the type and quality of evidence necessary to justify the unusual remedy and avoid a substantial miscarriage of justice. In determining that it was not, the court noted the "centuries of case law expounding the necessity of finality of judgments", and recognized that new evidence, taken alone, and produced some six years after the judgment, did not justify the extraordinary relief sought. This conclusion is supported by the record and the law. Additionally, the Appellees note that were the McDonalds to prevail, the final judgment could be revisited again and again each time an aggrieved party produced yet another survey.
CR 60.02 and the associated case law support the Knox Circuit Court's conclusion that the McDonalds failed to demonstrate entitlement to the extraordinary relief sought. We find no error. For the foregoing reasons, we Affirm the Knox Circuit Court's Order Denying Defendant's Motion Pursuant to CR 60.02
ALL CONCUR. BRIEF FOR APPELLANTS: Joe T. Roberts
London, Kentucky
BRIEF FOR APPELLEES: David S. Hoskins
Corbin, Kentucky