Livingston v. Frohlich

Full title: HENRY B. LIVINGSTON APPELLANT v. CYNTHIA FROHLICH APPELLEE

Court: Commonwealth of Kentucky Court of Appeals

Date published: Jun 6, 2014

NO. 2013-CA-000048-MR (Ky. Ct. App. Jun. 6, 2014)

Opinion

NO. 2013-CA-000048-MR

06-06-2014

HENRY B. LIVINGSTON APPELLANT v. CYNTHIA FROHLICH APPELLEE

BRIEF FOR APPELLANT: Henry B. Livingston, pro se LaGrange, Kentucky BRIEF FOR APPELLEE: None

COMBS

NOT TO BE PUBLISHED

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE BARRY WILLETT, JUDGE

ACTION NO. 11-CI-005077

OPINION

AFFIRMING

BEFORE: CLAYTON, COMBS, AND STUMBO, JUDGES. COMBS, JUDGE: Henry Livingston, pro se, appeals an order of the Jefferson Circuit Court which dismissed his case against Cynthia Frohlich. After our review, we affirm.

On August 2, 2011, Livingston filed a suit against Frohlich alleging breach of trust and seeking to re-gain property and money. Specifically, the complaint prayed for $170,000 in compensatory damages. The trial court dismissed the suit on December 11, 2012, finding that the suit was frivolous and impermissible according to law.

It is important to note that throughout the underlying proceedings, Livingston has been in the custody of the Kentucky Department of Corrections. Therefore, the governing statute is Kentucky Revised Statute[s] (KRS) 454.405. In pertinent part, it declares:

(1) At any time, and upon its own motion or on motion of a party, a court may dismiss a civil action brought by an inmate or on behalf of an inmate if satisfied that the action is malicious or harassing or if satisfied that the action is legally without merit or factually frivolous.

In this case, the trial court found that Livingston's case was frivolous because it is duplicative of another civil case, 09-CI-004040, which was also filed in Jefferson Circuit Court. (The appeal of that case was dismissed by the Court of Appeals on its own motion.) Livingston has provided the case history of 09-CI-4040. It indicates that the same parties and issues are involved in that case.

The litigation of repetitious suits is precluded by the doctrine of res judicata. Yeoman v. Commonwealth, Health Policy Bd., 983 S.W.2d 459, 464-65 (Ky. 1998). Livingston claims that the trial court erred because he was the defendant in 09-CI-4040. However, the case history shows that Livingston filed cross-claims. The issues involved are disputes regarding the same property between the same parties. Because Livingston has not presented evidence contrary to the trial court's findings, we affirm.

ALL CONCUR. BRIEF FOR APPELLANT: Henry B. Livingston, pro se
LaGrange, Kentucky
BRIEF FOR APPELLEE: None