Opinion
NO. 2011-CA-000769-MR
03-15-2013
JOHN PAUL CATES APPELLANT v. ROBERTA HAVENS AND VERNON DALE HAVENS APPELLEES
BRIEF FOR APPELLANT: Fred G. Greene Russellville, Kentucky BRIEF FOR APPELLEE: Matthew J. Baker Bowling Green, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM LOGAN CIRCUIT COURT
HONORABLE TYLER L. GILL, JUDGE
ACTION NO. 09-CI-00504
OPINION
AFFIRMING
BEFORE: CLAYTON, MOORE, AND NICKELL, JUDGES. MOORE, JUDGE: John Paul Cates appeals the Logan Circuit Court's order denying his motion pursuant to Kentucky Rule of Civil Procedure (CR) 60.02 requesting that circuit court allow additional time for filing of post-judgment motions. After a thorough review of the record, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A bench trial was held after which the circuit court recited its decision on the merits. On February 21, 2011, the circuit court entered a written order memorializing its decision. On March 21, 2011, Cates filed a CR 60.02 motion requesting that the circuit court permit him to file post-judgment motions outside of the ten-day limitation period. Cates stated in his motion that he first learned of the entry of the judgment on March 9, 2011 - after the ten-day limitation period had passed. Cates also executed a supporting affidavit stating that he never received a copy of the judgment and submitted proposed motions for additional findings of fact and conclusions of law, as well as a motion for a new trial.
A hearing was held at which Cates stated that he finally received a copy of the judgment on April 1, 2011. The record, however, reflected that the order was mailed via first-class mail on February 21, 2011.
Cates' statement regarding the late receipt of the judgment was not given under oath. Therefore, we will not consider this statement as evidence because it does not comport with Kentucky Rule of Evidence (KRE) 603 requiring that all witnesses be sworn in prior to testifying.
Likewise, we will not consider the testimony of clerk, Renee Stratton, as her testimony regarding the mailing of the judgment was not given under oath. KRE 603. We nevertheless note that "[i]n the absence of a showing to the contrary, it is presumed that a clerk or other public officer performs their duties as required by law." Trabue v. Tichenor, 695 S.W.2d 432, 436 (Ky. App. 1985).
The circuit court denied Cates' motion, finding that, all of the civil rules had been complied with when mailing the order to Cates. The court also noted at the hearing that although the order may have not reflected all of the findings of fact and conclusions of law made upon the record at bench trial, the "necessary findings are in the judgment" and that the issues which Cates wished to revisit were all addressed during trial. Cates now appeals.
II. STANDARD OF REVIEW
"[T]he determination to grant relief from a judgment or order pursuant to CR 60.02 is one that is generally left to the sound discretion of the [circuit] court with one of the chief factors guiding it being the moving party's ability to present his claim prior to the entry of the order sought to be set aside." Schott v. Citizens Fidelity Bank, 692 S.W.2d 810, 814 (Ky. App. 1985) (citing Fortney v. Mahan, 302 S.W.2d 842 (Ky. 1957). The circuit court must also consider "'whether the granting of the relief sought would be inequitable to the other parties.'" Educator & Exec. Insurers, Inc. v. Moore, 505 S.W.2d 176, 177 (Ky. 1974) (quoting Fortney, 302 S.W.2d at 843). "The desire that justice be accorded the parties clashes on some occasions with the principle that litigation must end within a reasonable time." Fortney, 302 S.W.2d at 843.
III. ANALYSIS
The sole issue on appeal is whether the circuit court abused its discretion when denying Cates' CR 60.02 motion to permit the late-filing of post-judgment motions. Cates does not contest that the judgment was mailed via first-class mail on the date of its entry and alleges no other mistake on behalf of the court. Rather, he contends that he should be afforded relief pursuant to CR 60.02(a) because of the failure of the United States Postal Service to deliver the judgment to him in a timely fashion.
Although Cates alleges in his brief that late receipt of the judgment precluded him from appealing the judgment on the merits, he admits in his CR 60.02 that he was aware of the entry of the judgment on March 9, 2011, which was well within the thirty-day period in which to file an appeal.
This provision provides in relevant part:
"On motion a court may, upon such terms that 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 . . . . "
Cates cites to Kurtsinger v. Bd. of Trustees, 90 S.W.3d 454 (Ky. 2002) and Younger v. Evergreen Group, Inc., 363 S.W.3d 337 (Ky. 2012). However, both of those cases involved instances where the trial court had admittedly made an error which prevented timely service to the party seeking relief.
The court in Kurtsinger also distinguished its grant of CR 60.02 relief from instances similar to the one in this case, stating that "'[t]his is not a situation where there's at least an argument that it went out to them and they are saying they did not receive it or something like that.'" Kurtsinger, 90 S.W.3d at 455. Here, however, Cates asserts just that. Moreover, the only evidence presented by Cates to support his contention that he did not receive the judgment within the ten-day time limitation was his own self-serving affidavit. And, unlike Kurtsinger and Younger, Cates has presented no corroborating evidence from the party alleged to have made the mistake.
Thus, the circuit court acted within its discretion by weighing the evidence regarding Cates' claim that he did not receive the judgment within ten days from the date of its entry and determining that, under these particular facts, he did not demonstrate that he was entitled to relief pursuant to CR 60.02. Additionally, the circuit court noted that granting Cates' motion was not necessary to achieve justice because Cates had the opportunity to present his claims during the bench trial. Accordingly, we find no abuse of discretion and affirm.
ALL CONCUR. BRIEF FOR APPELLANT: Fred G. Greene
Russellville, Kentucky
BRIEF FOR APPELLEE: Matthew J. Baker
Bowling Green, Kentucky