Opinion
NO. 2019-CA-001509-ME
05-08-2020
R.J. APPELLANT v. COMMONWEALTH OF KENTUCKY AND F.C., JR. APPELLEES
BRIEFS FOR APPELLANT: Robert W. Miller Grayson, Kentucky BRIEF FOR APPELLEE F.C., JR.: Tracy D. Frye Russell, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CARTER CIRCUIT COURT
HONORABLE DAVID D. FLATT, JUDGE
ACTION NO. 18-J-00101 OPINION
VACATING AND REMANDING
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BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND LAMBERT, JUDGES. CLAYTON, CHIEF JUDGE: R.J., the guardian of a minor child, appeals from the Carter Circuit Court's determination of F.C., Jr.'s ("F.C.") paternity regarding such child. The primary issue presented in this case is whether the trial court incorrectly ruled on the merits of the controversy sua sponte and without notice to either party. Upon review of the record and applicable legal authority, we vacate the trial court's judgment and remand for proceedings consistent with this opinion.
BACKGROUND
On August 10, 2018, F.C., through the Commonwealth of Kentucky, filed a verified paternity complaint (the "Complaint") asking the court to name F.C. as the father of a minor child, A.J. ("Child"). The Complaint stated that it was being filed under Kentucky Revised Statutes (KRS) 406.021(1) to establish the paternity of Child. The sole respondent listed on the Complaint was R.J. and, while the Complaint named R.J. as Child's "guardian," neither the Complaint nor any other part of the record provides an explanation as to how R.J. came to be Child's guardian or the specific legal status that R.J. held vis-à-vis Child. Further, the Complaint did not name, provide any information concerning, or even mention Child's biological mother.
R.J. was served with a civil summons of the Complaint and failed to respond. As a result, in September of 2018, the Commonwealth filed a motion and affidavit for default judgment. Shortly thereafter, R.J. filed a motion to submit a late answer and a response to the Complaint that claimed as an affirmative defense that the Complaint failed to state a cause of action upon which relief could be granted. R.J.'s other defenses were that F.C. had abandoned Child and that "it would be an extreme injustice to [Child] to grant the petition herein." On September 25, 2018, the trial court entered an order granting R.J.'s motion to file a late response and denying the Commonwealth's motion for default judgment.
After such denial, nothing substantive happened of record in this case from late September of 2018 until August 19, 2019, at which time the trial court entered, seemingly unprompted, an "Order of Summary Judgment for Paternity and Support" finding that F.C. was the Child's father. Such order was entered without a motion from, or notice to, any of the parties.
R.J. filed a timely motion to alter, amend, or vacate, arguing that the trial court's order had been entered without notice to her and that certain necessary parties had not been joined to the action. R.J. failed to attend the motion hour to argue her motion to alter, amend, or vacate and, on September 5, 2019, the trial court entered an order denying R.J.'s motion to alter, amend, or vacate the judgment. On September 9, 2019, the trial court entered an additional order denying R.J.'s motion to alter, amend, or vacate finding that, because R.J. was not Child's mother, she did not have standing to question the validity of the trial court's judgment concerning paternity. Although not included in the record, the trial court noted that R.J. had filed an action in the Carter Circuit Court seeking to terminate F.C.'s parental rights, and that in her petition in that action, she swore that F.C. was the father of the Child, which the trial court found constituted a judicial admission. R.J. filed a timely appeal from the circuit court's original order, as well as from the circuit court's two orders denying her motion to alter, amend, or vacate.
ISSUES
On appeal, R.J. argues that: (1) the trial court erred by entering summary judgment on its own motion and without notice to R.J. and (2) the trial court erred when it failed to require that Child's biological mother be joined as a necessary party to the action.
ANALYSIS
As a preliminary matter, we note that F.C. argues that this appeal should be dismissed for R.J.'s failure to comply with Kentucky Rule of Civil Procedure (CR) 76.12(4)(c)(v). CR 76.12(4)(c)(v) requires that a brief contain:
An "ARGUMENT" conforming to the statement of Points and Authorities, with ample supportive references to the record and citations of authority pertinent to each issue of law and which shall contain at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner.(Emphasis added.)
We agree that R.J.'s failure to fully comply with CR 76.12(4)(c)(v) is problematic, as R.J.'s brief has no statement of preservation of the issues she raises on appeal. The Kentucky Supreme Court has stated that "[i]t goes without saying that errors to be considered for appellate review must be precisely preserved and identified in the lower court." Skaggs v. Assad, By and Through Assad, 712 S.W.2d 947, 950 (Ky. 1986) (citations omitted). Further, "[i]t is not the function or responsibility of this court to scour the record on appeal to ensure that an issue has been preserved." Koester v. Koester, 569 S.W.3d 412, 415 (Ky. App. 2019) (citation omitted).
Our options when an appellate advocate fails to abide by the rules are: "(1) to ignore the deficiency and proceed with the review; (2) to strike the brief or its offending portions; or (3) to review the issues raised in the brief for manifest injustice only[.] Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010) (citations omitted). In this case, we decline to strike R.J.'s brief and will proceed with a review of the merits of the case.
On appeal, R.J. argues that the trial court's summary judgment order was impermissibly issued upon the court's own motion, or sua sponte, and not upon the request or motion of any party involved in the action. Both CR 56.01 and CR 56.02 state that a party may make a motion seeking a summary judgment from the trial court. Further, CR 56.03 states that such motion "shall be served at least 10 days before the time fixed for the hearing" and "[t]he adverse party prior to the day of hearing may serve opposing affidavits." Therefore, the civil rules governing summary judgments contemplate a motion or motions by one or both of the parties involved in the litigation, fair notice to the other party that a summary judgment motion has been made, and a reasonable opportunity to respond to such motion.
In this case, although F.C. filed a motion for default judgment which the trial court ultimately clearly denied, nothing in CR 55.01 allows a motion for default judgment to be converted into a motion for summary judgment. Indeed, a motion for default judgment is not only an improper channel by which to test the legal sufficiency of pleadings, it follows that it is an improper channel by which to test the strength of the evidence supporting such pleadings. Kearns v. Ayer, 746 S.W.2d 94, 95 (Ky. App. 1988). Therefore, we are left with no other motion of record by either party as a basis for the trial court's entry of summary judgment in favor of F.C.
While this Court has acknowledged that a trial court may grant summary judgment sua sponte, such authority is reserved for those situations where:
a motion for summary judgment has been made by some party to the action, the judge has all of the pertinent issues before him at the time the case is submitted, and where overruling the movant's motion for summary judgment necessarily would require a determination that the non-moving party was entitled to the relief asked.Storer Communications of Jefferson County, Inc. v. Oldham County Bd. of Educ., 850 S.W.2d 340, 342 (Ky. App. 1993) (internal quotation marks, citations, brackets, and emphasis omitted). The foregoing factors described in Storer are not evidenced here. As to the first factor, neither party submitted a request for summary judgment. Id. Regarding the second factor, it is unknown from the record provided to this Court whether the trial court had before it "all of the pertinent issues[.]" Id. Finally, we cannot analyze the third Storer factor, as there is no "movant" and no "non-moving party" and we therefore have no information to determine entitlement to "the relief asked." Id.
Further, F.C. has provided us with no authority permitting the trial court "to circumvent the civil rules and enter summary judgment sua sponte" where, as here, neither party filed any motion and "the legal issues ha[d] not been submitted for determination." Id. Rather, "it is fundamental that a trial court has no authority to otherwise dismiss claims without a motion, proper notice and a meaningful opportunity to be heard." Id. Further, where, as here, the lack of notice deprived the party against whom summary judgment was entered of the opportunity to submit summary judgment evidence, the error is not harmless.
Finally, R.J. argues that the trial court failed to join a necessary party - Child's biological mother - to the action. We agree that an overall examination of the various parties' roles in this matter is needed and should be more fully explained on remand. However, as a panel of this Court has noted, "the party who believes an indispensable party should be joined has the obligation of filing an appropriate motion or other pleading with the trial court in an attempt to join that party." Tri-County Nat'l Bank v. GreenPoint Credit, LLC, 190 S.W.3d 360, 362 (Ky. App. 2006) (citation omitted). Because R.J. failed to file such a motion, this issue is not subject to appellate review. Id. at 363.
CONCLUSION
For the foregoing reasons, the Carter Circuit Court's summary judgment is hereby vacated. Further, the record upon which the trial court granted summary judgment - as it was submitted to this Court - coupled with the lack of procedural safeguards to ensure the development of a full and complete record, leave us in serious doubt as to the specific reason or reasons why the trial court granted summary judgment. We believe that, in the interest of a proper adjudication of the merits of this case, it is necessary for us to remand the proceedings to the trial court for the development of a more complete record. In so doing, we do not preclude the possibility of an ultimate disposition by summary judgment proceedings. However, the trial court should permit both R.J. and F.C. to file such additional pleadings, affidavits, and exhibits as will assure a complete record, including to provide a clearer understanding of R.J.'s role as "guardian" to Child.
ALL CONCUR. BRIEFS FOR APPELLANT: Robert W. Miller
Grayson, Kentucky BRIEF FOR APPELLEE F.C., JR.: Tracy D. Frye
Russell, Kentucky