Opinion
NO. 2012-CA-001116-MR
11-26-2014
TROY S. DAVIS APPELLANT v. KENTUCKY HOUSING CORPORATION APPELLEE
BRIEF FOR APPELLANT: Troy S. Davis, pro se Shepherdsville, Kentucky BRIEF FOR APPELLEE: Jeremy M. Rettig Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE RODNEY BURRESS, JUDGE
ACTION NO. 09-CI-00717
OPINION
DISMISSING IN PART AND AFFIRMING IN PART
BEFORE: KRAMER, MAZE, AND VANMETER, JUDGES. KRAMER, JUDGE: Kentucky Housing Corporation (KHC) filed a foreclosure action against Troy S. Davis in Bullitt Circuit Court. Davis filed a counterclaim. Thereafter, the circuit court entered summary judgment in favor of KHC with respect to its foreclosure action; entered a corresponding order of sale with respect to Davis's property that was subject to KHC's mortgage; and summarily dismissed Davis's counterclaim.
Judge Joy A. Kramer, formerly Judge Joy A. Moore.
On appeal, Davis offers several arguments relating to why, in his view, the circuit court erred in entering a judgment of foreclosure in favor of KHC and a corresponding order of sale with respect to his property on June 19, 2012. He asserts: (1) KHC had no right to file its foreclosure action because KHC failed to properly secure an interest in his home as collateral for the loan; (2) KHC engaged in fraudulent conduct with respect to the loan; (3) KHC violated a number of procedural rules in filing and prosecuting its foreclosure action; and (4) the circuit court violated a number of procedural rules, and was biased in favor of KHC and against Davis, prior to granting KHC its judgment.
However, we cannot consider these arguments. To explain, we begin by pointing out (as Davis himself points out in his brief) that the circuit court had previously entered a judgment of foreclosure in favor of KHC and an order of sale with respect to his property on April 2, 2012. The April 2, 2012 judgment determined that KHC's loan to Davis was valid and in default; the KHC loan was secured by an enforceable lien against Davis's property with priority over all other interests except those relating to delinquent taxes; Davis's property was to be sold as an indivisible whole; the proceeds would be applied to the outstanding balance of Davis's loan from KHC; and, that it was "a final and appealable judgment and there [was] no just reason for delay in its entry."
As it recited, the circuit court's April 2, 2012 order and judgment was final and appealable. See Kentucky Rule of Civil Procedure (CR) 54.02(1); see also Security Fed. Sav. & Loan Ass'n v. Nesler, 697 S.W.2d 136, 138 (Ky. 1985). If Davis wished to contest it, he was required to file a CR 52.02 or CR 59.05 motion to alter, amend, or vacate within 10 days of April 2, 2012, or, per CR 73.02(1), a notice of appeal within 30 days of April 2, 2012. He failed to do so. Instead, on April 16, 2012—a date in excess of the ten day deadline—Davis filed a CR 6.02 motion to enlarge the period of time allotted for filing a CR 59.05 motion; filed a CR 59.05 motion on April 18, 2012; and ultimately filed his notice of appeal on June 21, 2012, shortly after the circuit court purported to overrule his CR 59.05 motion and enter its aforementioned June 19, 2012 order and judgment (an order and judgment almost identical to what it had previously entered on April 2, 2012, the sole difference being that it also dismissed Davis's counterclaim against KHC).
Ten days after Monday, April 2, 2012, was Thursday, April 12, 2012. April 12, 2012 was not a holiday.
To be clear, it is not within the discretion of any court to extend the 10-day deadline for filing a CR 59.05 motion; that deadline is mandatory. See Arnett v. Kennard, 580 S.W.2d 495, 496 (Ky. 1979); see also CR 6.02 (which specifically provides courts with no authority or discretion to extend the 10-day deadlines specified in CR 52.02 or CR 59.05). When Davis filed his CR 59.05 motion beyond the requisite 10-day time limit, he deprived the circuit court of jurisdiction to alter, amend, or vacate its April 2, 2012 order. Thus, when the circuit court eventually decided to overrule Davis's CR 59.05 motion and enter its second judgment of foreclosure and order of sale on June 19, 2012, its actions in those respects were legal nullities. Consequently, to the extent that Davis's appeal of the circuit court's June 19, 2012 order contests the propriety of the circuit court's judgment of foreclosure in favor of KCH and its order of sale with respect to his property, his appeal is untimely and must be dismissed. See CR 73.02(2).
As noted, however, the circuit court's June 19, 2012 order did make a ruling that the April 2, 2012 order and judgment omitted; namely, it disposed of Davis's counterclaim against KHC. As such, that ruling and Davis's arguments relating to it are subject to review.
Taken generously, Davis's counterclaim appears to assert common law fraud by either misrepresentation or omission. He described it in his complaint in relevant part as follows:
As a general matter, a claim of fraud by misrepresentation requires evidence supporting the following elements: a) material representation; b) which is false; c) known to be false or made recklessly; d) made with inducement to be acted upon; e) acted in reliance thereon; and f) causing injury. See Wahba v. Don Corlett Motors, Inc., 573 S.W.2d 357, 359 (Ky. App. 1978). A claim of fraud by omission, by contrast, requires evidence supporting: a) that the defendant had a duty to disclose a fact; b) the defendant failed to disclose the fact; c) the defendant's failure to disclose the material fact induced the plaintiff to act; and d) the plaintiff suffered actual damages. See Rivermont Inn, Inc. v. Bass Hotels & Resorts, Inc., 113 S.W.3d 636, 641 (Ky. App. 2003).
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2. At all times relevant to this action, KHC, in its capacity as a Mortgage Lender failed to inspect and protect [Davis's] residence and interest in his first home. Shortly, after the purchase of the "believed to be home", [Davis] began experiencing the lack of water pressure and discovered a leak under the home. [Davis] later found through his own investigating that this was not a house, rather a manufactured home and was part of a
$950 million settlement in Cox v. Shell Oil Company, a national class action that would serve no benefit to [Davis].
3. At all times relevant to this action, KHC, intentionally misled [Davis] with suitable measures of relief and intentionally withheld this defective "polybutylene pipe and entire PB plumbing system" from [Davis]. Upon [Davis's] first claim to State Farm Insurance for water damage, his policy was cancelled. State Farm Adjuster informed me, "he was very surprised I had a policy with State Farm, since my residence was not deemed a house, rather a mobile home or manufactured home and would not cover my home any further.
4. If the Plaintiff, KHC, has suffered any injury or loss, it is solely due to their own fraudulent and misleading activities with [Davis] and other parties not presently joined to this civil action.
5. [Davis] avers that his counterclaim will exceed the opposing claim.
With this in mind, we will now turn to the circuit court's reasons, as stated in the relevant part of its June 19, 2012 order, for dismissing Davis's counterclaim:
The next issue before the Court on June 12, 2012 was [KHC's] Motion for Summary Judgment on [Davis's] Counterclaim. [Davis] asserts in his Counterclaim that [KHC] failed to inspect and protect [his] residence and misled [Davis] intentionally with respect to a polybutylene pipe and PB plumbing system. [Davis] submits no affidavits or evidence on which to base his position. [Davis] submits no documentation to establish any claim of fraud. While [Davis] asserts that he is in possession of evidence which would justify his Counterclaim he admits that it has not been presented to the Court and presents to the Court to [sic] expectation of when the material can be submitted. . . .
Davis's arguments on appeal are directed solely toward the proposition that the circuit court's decision to dismiss his claim must be reversed because the circuit court was biased against him. In support, he asserts in his brief that the circuit court
intentionally ignored, [Davis's], open court averments that the, Appellee's, were filing numerous pleadings that were not in accordance with the 55th Judicial Circuit, Bullitt Circuit Court's Local Rules or Kentucky's Rules of Civil Procedure, and that there was merit to [Davis's] Counterclaim citing fraud and intentional
misrepresentation of mortgage documents[.]
Stated differently, Davis alleges judicial bias because, in spite of his belief that he had an evidentiary basis for asserting his claim of fraud and his allegations underpinning his claim, the circuit court dismissed his claim without a trial.
What Davis has described, however, is not a dismissal that improperly resulted from judicial bias; rather, he has described a dismissal that properly resulted from CR 56, Kentucky's civil rule providing the standards for summary judgment.
Summary judgment serves to terminate litigation where "the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56.03. It is well established that a party responding to a properly supported summary judgment motion cannot merely rest on the allegations in his pleadings. Continental Cas. Co. v. Belknap Hardware & Mfg. Co., 281 S.W.2d 914 (Ky. 1955). "[S]peculation and supposition are insufficient to justify a submission of a case to the jury, and . . . the question should be taken from the jury when the evidence is so unsatisfactory as to resort to surmise and speculation." O'Bryan v. Cave, 202 S.W.3d 585, 588 (Ky. 2006) (citing Chesapeake & Ohio Ry. Co. v. Yates, 239 S.W.2d 953, 955 (Ky. 1951)). "'Belief' is not evidence and does not create an issue of material fact." Humana of Kentucky, Inc. v. Seitz, 796 S.W.2d 1, 3 (Ky.1990); see also Haugh v. City of Louisville, 242 S.W.3d 683, 686 (Ky. App. 2007) ("A party's subjective beliefs about the nature of the evidence is not the sort of affirmative proof required to avoid summary judgment.") Furthermore, the party opposing summary judgment "cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 481 (Ky. 1991) (internal citations and quotations omitted).
On appeal, we consider the evidence of record in the light most favorable to the non-movant, and further consider whether the circuit court correctly determined that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916 S.W.2d 779 (Ky.App.1996). "Because summary judgment involves only legal questions and the existence of any disputed material issues of fact, an appellate court need not defer to the trial court's decision and will review the issue de novo." Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001) (footnote omitted).
Here, even assuming Davis's complaint stated a cognizable claim of fraud by misrepresentation or omission, Davis does not cite any evidence of record supporting that KHC knew of any defects in his home, that it intentionally withheld any such knowledge from him, or that it otherwise acted in any way consistently with the elements of a claim of fraud by misrepresentation or omission. Davis also cites no authority indicating, as he alleged, that KHC had any kind of duty to "inspect and protect [his] residence and interest" in his home. As noted, Davis's belief that he had an evidentiary basis for asserting such a claim, and his allegations underpinning his claim—both of which he faults the circuit court for ignoring—were insufficient for the purpose of CR 56. Thus, we cannot find that the circuit court erred in determining that KHC was entitled to summary judgment, and must therefore affirm its decision.
In conclusion, we DISMISS IN PART and AFFIRM IN PART as described above.
ALL CONCUR. BRIEF FOR APPELLANT: Troy S. Davis, pro se
Shepherdsville, Kentucky
BRIEF FOR APPELLEE: Jeremy M. Rettig
Louisville, Kentucky