Opinion
NO. 2012-CA-001510-MR
02-27-2015
SHELLEY NETHERWOOD APPELLANT v. ELAINE KENNEDY AND EKM REAL ESTATE APPELLEES
BRIEFS FOR APPELLANT: T. Bruce Simpson, Jr. Lexington, Kentucky BRIEF FOR APPELLEES: Laura E. Landenwich Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES M. SHAKE, JUDGE
ACTION NO. 05-CI-010493
OPINION
AFFIRMING
BEFORE: CLAYTON, J. LAMBERT, AND THOMPSON, JUDGES. CLAYTON, JUDGE: The present appeal involves a contract dispute between a real estate agent and a property owner over a claimed $120,000.00 commission. Shelley Netherwood, the property owner, has appealed from the August 16, 2012, order of the Jefferson Circuit Court denying her motion for Kentucky Rules of Civil Procedure (CR) 60.02 relief, in which she sought to have set aside the judgment awarding damages to the plaintiffs. Having carefully reviewed the record and the parties' arguments, we hold that the circuit court did not abuse its discretion in denying Netherwood's CR 60.02 motion for relief. Hence, we affirm the order on appeal.
BACKGROUND INFORMATION
This is the third appeal Netherwood has filed with this Court. We shall, therefore, rely upon the statement of facts as set forth in this Court's opinion rendered in the first appeal:
Netherwood is a resident of Miramar Beach, Florida, who formerly owned real property located on Ballardsville Road in Jefferson County, Kentucky. On May 20, 2004, Netherwood entered into two multiple listing contracts (hereinafter collectively referred to as "the contracts") with Elaine Kennedy, a licensed real estate broker in Kentucky who was doing business as EKM Real Estate in Jefferson County, Kentucky[] The contracts allowed Kennedy to list and seek buyers for two tracts of real estate owned by Netherwood, located at 10826 and 11000 Ballardsville Road, Jefferson County, Kentucky.[] The contracts were entered into for a six-month period and were subsequently extended by agreement of the parties through May 1, 2005. The contracts provided that any disputes arising thereunder would first be submitted to mediation, and if not resolved, then the disputes would be decided by binding arbitration. The arbitration provisions in the contracts were identical and read as follows:
MEDIATION/BINDING ARBITRATION: Any dispute or claim (including, without limitation, claims of fraud, misrepresentation, warranty and negligence) of Sellers, Buyers, Brokers, Agents or any of them for a sum greater that the limits of small claims court jurisdiction arising out of this contract or the breach thereof or arising out of or relating to the physical condition of the property covered by this contract shall first be submitted to mediation in accordance with the guidelines and procedures of a qualified, reputable Greater Louisville Association of REALTORS, Inc. mediator (names and addresses of which may be obtained from the Greater Louisville Association of REALTORS, Inc.). Disputes shall include (among other things) issues relating to representation made by the Buyer, Seller or any Broker or Agent, or other person or entity in connection with this contract. Any agreement signed by the parties pursuant to the mediation conferred shall be binding .
If mediation does not result in an agreement signed by the parties, all such claims or disputes shall be decided by binding arbitration in accordance with the rules of the real estate industry, then in effect, adopted by the American Arbitration Association unless the parties mutually agree otherwise. Notice of the demand for arbitration shall be filed in writing by registered or certified mail with the other parties to the contract and with a registered arbitrator (a list of which is available at the Greater Louisville Association of REALTORS, Inc. main office) or other arbitrators which the parties may agree upon and shall be made within 180 days after the dispute has arisen. An actual oral hearing shall be held unless the parties mutually agree otherwise. The Kentucky Real Estate Commission still retains jurisdiction to determine violations of KRS 324.160. Any
Netherwood v. Kennedy, 2008-CA-001508-MR, 2010 WL 5018154 *1-2 (Ky. App. Dec. 10, 2010) (emphasis in original). Netherwood, proceeding pro se, filed a counterclaim to recover $5,000.00, which she had paid Kennedy as an advance on her commission, as well as damages for harassment.proceeding to determine damages shall be conducted by an arbitrator pursuant to this clause and not in court. The terms of these paragraphs shall survive the closing.
Kennedy identified at least two prospective purchasers during the term of the contracts. One of the prospects, Five Star Development, Inc., engaged in substantial negotiations with Netherwood and her attorney over an approximate eight-month period that resulted in a written offer and several letters of intent. The negotiations with Five Star broke off in early April 2005. Kennedy subsequently demanded her commission under the contracts alleging she had procured a ready, willing, and able purchaser of the property in Five Star. Netherwood then demanded a refund from Kennedy of $5,000 that had been advanced to promote the sale of the property.
In December 2005, Netherwood sold the property to another purchaser. Kennedy then commenced this action in the Jefferson Circuit Court on December 8, 2005, to collect a sales commission under the contracts.
The contracts appear to be standard form listing agreements by members of the Greater Louisville Association of Realtors.
There were ultimately four tracts of property owned by Shelley Netherwood shown by Elaine Kennedy to the prospective buyers.
Netherwood's first appeal addressed the propriety of the circuit court's ruling that the arbitration provision was valid, but that the parties had waived their rights under the agreement. She had moved to dismiss the claim, arguing that the circuit court lacked jurisdiction because of Kennedy's failure to seek arbitration within 180 days from the date the dispute arose. A panel of our Court affirmed the order denying her motion to dismiss, holding that "the arbitration provisions within the contracts do not comply with Kentucky Revised Statutes (KRS) 417.200 and thus are not enforceable by the parties to this action." Id. at *2. The Court relied upon the holding in Ally Cat, LLC v. Chauvin, 274 S.W.3d 451, 455 (Ky. 2009), that an agreement to arbitrate must provide for arbitration in Kentucky before it may be enforced by Kentucky courts. Id.
Addressing the amount of time the case had been pending, this Court concluded:
[W]e would be remiss if we did not point out that this case has floundered in our Court system now for almost five years. The circuit judge should be commended for the restraint and tolerance he has shown in this case. Netherwood has filed at least three motions to dismiss and Kennedy has filed at least two motions for summary judgment, all of which have been denied by the circuit court. Additionally, the circuit court has scheduled a trial in this action on at least three occasions. Based upon our review of the record, there does not appear to be any legal basis to delay the prompt trial of this action upon return to the court's active docket. We encourage both parties to end their personal hostility that has been exhibited throughout this case and to immediately proceed to trial on the merits of the disputed issues arising under the contracts and as set forth in the complaint and counterclaim, and as further detailed in the circuit court's order of March 25, 2008, denying cross-motions for summary judgment. We also would encourage Netherwood to obtain counsel to represent her interests at trial. The damage claims asserted in this case are substantial. While Netherwood has sufficiently presented her case on appeal in a pro se capacity, in substantial compliance with applicable rules, the perils of representing oneself in a jury trial are many and the consequences dire. One consequence of self-representation could result in an adverse judgment regardless of the merits of one's claim or defense. We emphasize the wisdom of the oft-quoted maxim in our
legal system that "a man [or woman] who represents himself has a fool for a client." See Hummel v. Com., 306 S.W.3d 48 (Ky. 2010). If Netherwood continues to represent herself at trial, she shall be held to the same standards and court rules as any licensed attorney, including civility and respect for opposing counsel and the court. See Lattanzio v. Joyce, 308 S.W.3d 728 (Ky. App. 2010).Id. at *3. The above opinion became final on October 26, 2011, after the Kentucky Supreme Court denied a motion for discretionary review.
On that same day, Kennedy moved the circuit court to schedule a jury trial. In early November 2011, the circuit court granted the motion and entered a trial order, assigning the matter for a jury trial on January 17, 2012, and setting forth pretrial deadlines.
On November 4, 2011, the circuit court's office received a motion to dismiss from Netherwood, proceeding pro se, but the motion was not filed in the system. In the motion to dismiss, Netherwood argued that this Court's ruling holding the arbitration provision unenforceable, rendered the entire contract unenforceable because it did not include a severability or savings clause. Therefore, Netherwood again moved to dismiss Kennedy's case. In addition to the motion to dismiss, Netherwood informed the circuit court that she would not be appearing at motion hour because she lived in Florida. She also requested the circuit court to relax the mandatory response times because she was traveling between her home and her mother's home in Florida to assist her. She requested that a copy of anything sent to her be sent to her mother's address as well. Kennedy responded to the motion on November 23, 2011, arguing that her motion was frivolous. In reply, Netherwood disputed this assertion.
On November 18, 2011, Netherwood objected to the jury trial order, stating that the trial date had been set without her input. She stated that she would be unavailable on January 17, 2012, because it was her step-daughter's birthday. She indicated that she would be available April 17, April 24, June 12, or June 19, 2012. Netherwood also noted that the January trial date would cause the filing deadlines in the circuit court's order to be unattainable. Finally, Netherwood stated that her motion to dismiss was pending before the circuit court.
In early December, Kennedy moved the circuit court to modify its trial order to allow the parties time to complete discovery prior to the date of trial. The circuit court granted Kennedy's motion on December 5, 2011, and modified the dates of the trial order. However, Netherwood filed a response on December 9, 2011, continuing to argue that the trial should be rescheduled and again noting that her motion to dismiss was still pending. Netherwood filed a Notice of Submission related to her pending motion to dismiss on January 3, 2012. On January 5, 2012, Kennedy filed a notice of withdrawal of her jury trial demand and moved for a bench trial, which the circuit court granted on January 9, 2012.
On January 10, 2012, Netherwood filed a petition for a writ of mandamus or prohibition and a motion for intermediate relief in this Court. In her petition, Netherwood sought to compel the circuit court to rule on her motion to dismiss Kennedy's complaint and, alternatively, to postpone the trial date. In her motion for intermediate relief, she sought a stay of the proceedings pending a ruling on her petition, including the scheduled bench trial.
No. 2012-CA-000062-OA.
A panel of our Court denied the motion for intermediate relief on January 13, 2012, holding that the circuit court had jurisdiction and that Netherwood had failed to demonstrate that she had an inadequate remedy by appeal or that a failure to stay the circuit court proceedings would result in immediate and irreparable injury. The Supreme Court of Kentucky affirmed this Court's ruling on October 25, 2012, noting that the circuit court had ruled on her motion to dismiss. By order entered April 15, 2013, this Court denied Netherwood's petition for a writ of mandamus or prohibition. The Supreme Court again affirmed this Court's ruling in April 2014, agreeing that Netherwood had an adequate remedy by appeal related to the circuit court's construction of the contract and its refusal to reschedule the trial.
No. 2012-SC-000040-MR.
No. 2013-SC-000271-MR.
While Netherwood's petition and motion were pending in this Court and in the Supreme Court, the circuit court proceedings continued. On January 17, 2012, Netherwood's husband sent a fax directly to the circuit court judge stating as follows:
The handwritten fax was certified as a supplemental record because it had not been included in the originally certified record. However, the fax, along with the notice of appeal to the Supreme Court referenced in the fax, was included in the envelope of exhibits introduced in the bench trial. The envelope of exhibits also includes copies of Netherwood's petition for writ of mandamus or prohibition, her motion for intermediate relief, Kennedy's response to the petition and motion, and a fax from this Court including the order denying the motion for intermediate relief.
My wife is enroute [sic] from Miramar Beach to Marco Island. She asked me to notify Judge Shake and Kennedy's counsel that she will not be able to travel to Louisville today or in the immediate future.The same day, the circuit court entered an opinion and order ruling on Netherwood's motions. Related to her motion to dismiss, the circuit court stated:
Attached is the Notice of Appeal to the Ky Supreme Court which should be received by them today.
Next, Netherwood filed her Fourth Motion to Dismiss, urging this Court to invalidate the entire multiple listing agreement on the grounds that it contained no severability provision. Thus, she reasons, since the arbitration provision is unenforceable, the entire contract should be invalidated. She also asked that the dates set forth in the Trial Order be altered to accommodate her schedule. This pleading, however, was received by mail and not processed through the Jefferson Circuit Clerk's Office. It is therefore not properly of record. Nevertheless, Kennedy did respond, simply indicating that there was no support for Netherwood's motion.
Kennedy moved to modify the Trial Order, given the forthcoming nature of the trial and that motion was granted on December 14, 2011. Therefore, those are the dates currently authorized by the Court.
Netherwood has moved to postpone the trial date and has moved to quash subpoenas issued to Marilyn Cleland and Woody Hamilton. Kennedy contends that since these issues were not properly noticed, they are not before the Court.
In Ally Cat, LLC v. Chauvin, 274 S.W.3d 451 (2009), the issue was jurisdiction, not validity. If the agreement does not state . . . that the arbitration is to be held here, the Court has no authority to adjudicate the
arbitration clause. However, the Court did not hold that there was no jurisdiction to adjudicate the issues raised by the contract as a whole. Indeed, the last sentence of the Court's Opinion states that the stay upon adjudication was lifted, see also Hathaway v. Eckerle, 336 S.W.3d 83 (Ky. 2011).The circuit court went on to address the subpoena issue, determining that Netherwood did not have authority to object. The circuit court ultimately denied all of Netherwood's pending motions.
The matter proceeded to a bench trial the following day, on January 18, 2012. At the beginning of the trial, the circuit court addressed the "flurry" of filings received from Netherwood. However, the circuit court noted that it had not received an order from this Court or the Supreme Court related to holding the trial in this matter and that it had received a fax from Netherwood stating that she was traveling and would not be able to appear before the circuit court in the immediate future. The circuit court heard testimony and entered a judgment on January 20, 2012, awarding Kennedy a judgment in the amount of $115,000.00, plus 8% pre-judgment interest from August 31, 2005, and 12% post-judgment interest. The circuit court entered its findings of fact supporting its judgment on January 24, 2012.
The next document in the record is a letter to the Jefferson Circuit Court Clerk from Netherwood with a filing date of February 17, 2012. In the letter, Netherwood addressed the filing of her motion to dismiss in November 2011. When she discovered that the motion had been sent to the circuit court's address rather than the clerk's, Netherwood had her husband follow up with the Jefferson Circuit and Civil Suit Desk. He was told that he would not need to send another copy. She was also never informed that the motion was deficient or not properly of record. She did not learn of this until February 4, 2012, when she received the court's January 17, 2012, order. Netherwood requested that the motion to dismiss be properly entered into the record. She also stated that she did not believe that the circuit court had jurisdiction due to appellate review. Netherwood included a copy of her motion to dismiss - the same one that she sent to the circuit court the previous November - with her letter. The motion to dismiss was filed on February 17, 2012.
On February 20, 2012, the circuit court entered a memorandum opinion and order ruling on Netherwood's "post-trial motion to dismiss." In the order, the circuit court stated:
The within action was set for a bench trial on January 18, 2012. The Defendant was advised of the trial date. She sent a fax the morning of trial stating that she would not appear. The Plaintiff appeared and proof was taken. A Judgment in favor of the Plaintiffs was entered on January 20, 2012. The Court's Findings of Fact in support of that Judgment were entered on January 24, 2012. The Defendant's current motion was filed more than ten days after the Judgment was entered and therefore, her motion is not timely pursuant to CR 59.05.Accordingly, the circuit court denied Netherwood's motion to dismiss as "untimely and moot."
On April 2, 2012, the clerk's office received a letter from Netherwood dated March 27, 2012, inquiring about internal policies regarding motions erroneously sent to a judge rather than the clerk's office. Netherwood followed up with another letter dated April 11, 2012, and received April 16, 2012, after she had received the circuit court's February 20, 2012, memorandum opinion and order. In the April letter, Netherwood stated:
In Judge Shake's "Memorandum Opinion and Order" he references that the trial went on without me, which I did not know. Then he references a "Judgment" from January 20, 2012, and also "Court's Findings of Fact" entered on January 24, 2012. I assume that these are documents like opinions or orders. Up until March 29, 2012, at my Miramar Beach address, and to date at my mother's Marco Island address, NEITHER of those documents have [sic] been received.
As there is absolutely no point in trying to contact Judge Shake, I request to be provided copies of those two documents. Also, I would like to know what proof, if any, is required of judges in Jefferson Circuit Court regarding the mailing out of papers to parties? If I do not receive the Court's rulings, I cannot respond. It is difficult enough with the mail each way taking three to five days, let alone if someone conveniently never does a mailing. The record shows that when I receive a ruling from Judge Shake that there is a response from me.
On May 7, 2012, Netherwood filed a motion for relief from judgment and for a new trial pursuant to CR 60.01 and 60.02. In her motion, Netherwood stated that from November 8, 2011, through February 4, 2012, she believed that her motion to dismiss was properly before the circuit court. She also discussed the petition for a writ of mandamus or prohibition and motion for intermediate relief she had filed with this Court on January 9, 2012, and that she had appealed this Court's decision to deny intermediate relief to the Supreme Court of Kentucky on January 17, 2012.
Netherwood confirmed that her husband had sent a fax to the circuit court on January 17, 2012, stating that she was unable to appear that day. She stated that without informing her, the circuit court conducted the trial on January 18, 2012, but entered an order the previous day denying her pretrial motions. She stated that she did not receive the circuit court's orders until early February and that she had not learned that the trial date had been changed or that the trial had been held until she received the February 20, 2012, order the following month.
Netherwood requested relief from the circuit court's judgment because she asserted that she had not received these rulings and, as a pro se party, did not have access to the court docket via the internet. She also asserted fraud on the court due to Kennedy's action pursuant to CR 60.02 and argued she was entitled to a new trial pursuant to CR 59.01 because she was prevented from having a fair trial.
Kennedy responded to Netherwood's motion for relief, stating that her CR 59 motion was untimely and that she was not entitled to CR 60 relief. On August 16, 2012, the circuit court entered a memorandum opinion and order ruling on Netherwood's motion for relief. After stating that Netherwood's CR 59.05 motion was untimely, the circuit court stated:
The Defendant's fax to the Court indicating that she simply could not attend trial was an insufficient basis for any delay and therefore, the Court proceeded with trial
upon the Plaintiff's proof. A previous motion pursuant to CR 59.05 was denied. There is no basis for this Court to use its discretion to grant extraordinary relief in an action in which the Defendant's motion to dismiss was denied four times prior to trial. Two of those Opinion and Orders were affirmed by the Kentucky Court of Appeals.The circuit court next addressed Netherwood's CR 60.02 motion, stating that Netherwood had not stated a claim for relief under any of its subsections. The circuit court then denied Netherwood's motion for relief. This appeal now follows.
DISCUSSION
On appeal, Netherwood (now represented by counsel) argues that the circuit court abused its discretion in denying her CR 60.02 motion to set aside the judgment. Kennedy, on the other hand, contends that the circuit court did not abuse its discretion and that Netherwood was not entitled to any relief.
By order entered April 11, 2013, this Court limited the issues on appeal to whether the circuit court abused its discretion in denying Netherwood's motions for relief pursuant to CR 60.01 and CR 60.02.
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CR 60.02 provides that a court may grant a party relief from a final judgment upon one of 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; orThe rule provides that the motion "shall be made within a reasonable time," and specifically states that the motion must be made "not more than one year after the judgment" for grounds (a), (b), and (c).
(f) any other reason of an extraordinary nature justifying relief.
"Our standard of review for a trial court's denial of a CR 60.02 motion is abuse of discretion. Fortney v. Mahan, 302 S.W.2d 842, 843 (Ky. 1957). The test for abuse of discretion is whether the trial court's decision is arbitrary, unreasonable, unfair, or unsupported by legal principles. Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000)." Lawson v. Lawson, 290 S.W.3d 691, 693-94 (Ky. App. 2009). "Under Ground No. 6 of CR 60.02, a judgment may be set aside for a reason of an extraordinary nature justifying relief from the operation of the judgment. However, because of the desirability of according finality to judgments, this clause must be invoked only with extreme caution, and only under most unusual circumstances." Cawood v. Cawood, 329 S.W.2d 569, 571 (Ky. 1959).
Netherwood first contends that she is entitled to relief based upon the circuit court's rescheduling of the trial from January 17th to January 18th without either informing her or entering an order, which deprived her of the opportunity to present a defense. She relies upon Louisville & N.R. Co. v. Greenbrier Distillery Co., 170 Ky. 775, 187 S.W. 296, 302 (1916) ("'due process' is always had when the party has had sufficient notice and an opportunity to make his defense.") and Fortney v. Mahan, 302 S.W.2d 842, 843 (Ky. 1957), to support her position. In Fortney, the former Kentucky Court of Appeals explained:
Direct attacks upon a judgment, as by appeal or by motion for new trial, are commonly accepted practice. CR 60.02 in addition provides the trial court with extensive power to correct a judgment even after recourse has been had to the usual methods of attack. On motion, the court is empowered to relieve a party from a final judgment under certain extraordinary circumstances and upon such terms as it deems just. CR 60.02 addresses itself to the sound discretion of the trial court. Tozer v. Charles A. Krause Milling Co., 3 Cir., 1951, 189 F.2d 242; see Civ.Code Prac. § 522; Martin v. Conley, 99 S.W. 613, 30 Ky.Law Rep. 728. Two of the factors to be considered by the trial court in exercising its discretion are whether the movant had a fair opportunity to present his claim at the trial on the merits and whether the granting of the relief sought would be inequitable to other parties. Moore's Federal Practice, 2d Ed., Sec. 60.19; see Civ.Code Prac. § 518; Mason v. Lacy, 274 Ky. 21, 117 S.W.2d 1026.Id. at 843. The Court held that Fortney's allegation that his counsel erred in deciding that production of the deeds and probate record was unnecessary was insufficient to justify relief under CR 60.02 and that there was no compelling reason shown to excuse his counsel's failure to introduce the evidence in his defense. Id. Netherwood contends that she did not have a fair opportunity to present her defense at trial.
Kennedy counters that these cases do not support Netherwood's position, arguing that lack of notice concerning the change of the trial date is not enough to amount to an abuse of discretion. Kennedy cites a recent unpublished case of this Court, National Service Industries, Inc. v. Skaggs, 2011-CA-001749-MR, 2013 WL 462158 *3 (Ky. App. Feb. 8, 2013), holding that NSI's "failure to participate at that trial was caused by its own lack of attention and was not due to any failure to receive notice." In Skaggs, this Court addressed a situation where counsel for the defendant, NSI, withdrew, but the company representatives knew that a trial had been scheduled. However, the March trial was not held due to a power outage and was rescheduled for May. No one appeared for NSI at the May trial date, and this Court noted that NSI had not participated since its local counsel withdrew. Rather, NSI considered the case to be dormant, despite the upcoming trial date. Netherwood argues that Skaggs is distinguishable from the present case.
Kennedy also cites Burns v. Brewster, 338 S.W.2d 908, 910 (Ky. 1960), for the proposition that:
parties litigant, once in court, either for themselves or through their attorneys, must keep track of their cases and take notice of the time of trial when the date has been fixed according to rules. Of course, if they have actual and seasonable notice thereof, they may be estopped from raising omission of a strict compliance with the rules.Netherwood argues in her reply brief, that the holding in Burns also supports her argument: "On the other hand, there may be circumstances justifying a party to reasonably conclude that his action will not be tried on the day fixed. In such a case it is an abuse of judicial discretion not to continue the case." Id. at 910, citing Plumbers Supply Company v. Lanter, 280 Ky. 523, 133 S.W.2d 739.
Kennedy disputes Netherwood's claim that the trial date was rescheduled without notice to her. Rather, Kennedy states:
The Court had set aside three days for the trial of this case. Netherwood does not dispute that she was aware that trial was scheduled to begin on January 17, 2012 and she was also aware that it was scheduled to continue for three days. As often happens on a busy trial court's docket, the case did not commence on time, but was delayed by the court's other obligations. If anything, this delay was a benefit to Netherwood, as it gave her an additional day to prepare for her appearance at trial.Kennedy goes on to argue that Netherwood had "no colorable excuse" to explain her absence from the trial on January 17, 2012, and that it was not appropriate or sufficient to send a fax to inform the court that she would not be attending the trial. Kennedy asserts that "[a]ny harm that resulted to Netherwood is directly and solely attributable to her own fault and deliberate disregard for the court's orders. It was not the circuit court that prevented her case from being heard, it was Shelley Netherwood. This deliberate action does not constitute excusable neglect or any other grounds for relief under CR 60.02."
Having carefully reviewed the record, we hold that the circuit court did not abuse its discretion in denying Netherwood's CR 60.02 motion. As set forth in Sanders v. Commonwealth, 339 S.W.3d 427,437 (Ky. 2011), CR 60.02 is not intended as merely an additional opportunity to raise claims which could and should have been raised in prior proceedings. Rather, it "is meant to provide relief which is not available by direct appeal...." Barnett v. Commonwealth, 979 S.W.2d 98, 101 (Ky.1998) "In order to be eligible for CR 60.02 relief, the movant must demonstrate why he is entitled to this special, extraordinary relief." Id. (emphasis added).
Netherwood has not demonstrated why she is entitled to special or extraordinary relief. In her argument before the circuit court, Netherwood argued that she lacked notice of the court's order and her disagreement with the court's decision. Similarly, in her argument before this Court she maintains that she was never notified of the changed trial date, that she was denied an opportunity to present her defense, and that she was not timely informed that the judgment had been entered against her. We disagree.
First, Netherwood's disapproval of the circuit court's decision is not a basis for relief under any provision of CR 60.02. Second, the trial date was not changed. The case was called on the date scheduled. The circuit court addressed the pending motions first. The trial was set for three days. Netherwood's absence from court at the time of the trial was of her own choosing.
The record reflects that Netherwood initially stated that she would be absent on the trial date because it was her step-daughter's birthday and that this would make her unavailable. In her Motion to Dismiss filed in November 2011, Netherwood mentions her ailing mother, but she offered no specific reason why her mother's health would prevent her from being in Louisville on January 17th. The circuit court was not required to grant a continuance for either of these reasons.
Although Netherwood was not certain as to the status of her motion to dismiss, it appears that she must have assumed that the trial was still scheduled because she had her husband send a fax to the trial court explaining that she "will not be able to travel to Louisville today or in the immediate future." Netherwood was required to be present for trial. Since she was unavailable for trial on any date in the near future, her complaint that she suffered prejudice when testimony began on the following day is disingenuous. The trial took place during the time period that the parties' had been noticed.
Even accepting Netherwood's statement that she never received a copy of the circuit courts Findings of Fact does not change the fact that the entry of judgment and the notation of service triggered the running of time for post judgment action. Netherwood argues that she was unaware that the circuit court had issued Findings of Fact because she never received a copy of them. However, the Jefferson Circuit Clerk's record reflects that the order was mailed to her. In Stewart v. Kentucky Lottery Corp., 986 S.W.2d 918, 920-21 (Ky. App. 1998), a panel of our Court discussed the strictness of CR 73.02 and CR 77.04. In that case, neither party received notice of the entry of their order. The Court in Stewart held:
True enough, apparently neither party received notice of entry of the order denying the motion to reconsider. Nevertheless, CR 77.04(4) plainly states that the clerk's failure to serve notice or a party's failure to receive notice does not affect the time for taking an appeal. The rule further provides that a trial court is not authorized to grant an extension of time for filing a notice of appeal for any period beyond ten days past the expiration for the time for taking an appeal. Brown v. Harris, 321 S.W.2d
781 (Ky. 1959). Courts have consistently enforced the harsh dictates of CR 77.04(4). We hold, therefore, that the clerk's electronic computerized "Case History" or docket sheet satisfies the requirements of CR 79.01 and the docket notations were sufficient under CR 77.04 to trigger the running of time for filing a notice of appeal.
There are no grounds to support Netherwood's request for extraordinary relief. The circuit court did not deny her an opportunity to be heard, rather she failed to avail herself of the opportunity to be heard. The circuit court did not abuse its discretion when it denied her CR 60.02 motion. For the foregoing reasons, the order of the Jefferson Circuit Court denying Netherwood's motion for CR 60.02 relief is affirmed.
THOMPSON, JUDGE, CONCURS.
LAMBERT, J., JUDGE, DISSENTS. BRIEFS FOR APPELLANT: T. Bruce Simpson, Jr.
Lexington, Kentucky
BRIEF FOR APPELLEES: Laura E. Landenwich
Louisville, Kentucky