Opinion
NO. 2016-CA-001401-MR
03-09-2018
MICHAEL PREWITT APPELLANT v. DANNY PREWITT AND SHARON PREWITT, A MARRIED COUPLE APPELLEES
BRIEFS FOR APPELLANT: Michael Prewitt, pro se Corbin, Kentucky BRIEF FOR APPELLEE: Amanda Hill Corbin, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KNOX CIRCUIT COURT
HONORABLE GREGORY A. LAY, JUDGE
ACTION NO. 12-CI-00533 OPINION
AFFIRMING
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BEFORE: ACREE, MAZE, AND NICKELL, JUDGES. NICKELL, JUDGE: Michael Prewitt ("Michael"), pro se, appeals from the Knox Circuit Court's Order denying his CR 60.02 motion requesting the trial court to vacate summary judgment in favor of Danny and Sharon Prewitt (collectively "Prewitts"). Finding no error, we affirm.
Kentucky Rules of Civil Procedure.
Michael filed a complaint in the Knox Circuit Court alleging the Prewitts, his brother and sister-in-law, improperly transferred title of his vehicle and refused to return certain items of personal property, thereby committing tortious acts of conversion and trespass to chattels. Michael moved to amend his complaint, but according to the record, the motion was never heard by the trial court nor decided.
The tendered amended verified complaint added claims of physical and mental abuse, unreasonable confinement, and unauthorized use of funds, among other claims. Michael addresses these claims throughout his brief.
The Prewitts moved for summary judgment on the claim involving the vehicle. During a hearing on the summary judgment motion, the Prewitts argued transfer of title occurred with Michael's knowledge and permission. As evidence, they pointed to transfer documents and the deposition of James Humfleet ("Humfleet"), the loan officer involved in the transfer. Humfleet stated Michael attended the transfer of title and signed the transfer documents. Michael, who did not file a written response to the motion, argued the Prewitts unduly influenced him to obtain the transfer of title, but offered no affirmative evidence of undue influence. The trial court awarded the Prewitts summary judgment on this claim.
Several months later, Michael, pro se, moved to set aside the order, but the trial court denied the motion. Nearly a year later, Michael, pro se, filed a CR 60.02 motion requesting the trial court to vacate the grant of summary judgment. In response, the Prewitts argued none of Michael's arguments were meritorious. The court summarily denied the motion. This appeal follows.
At the outset, we address Michael's failure to comply with CR 76.12(4)(c). CR 76.12(4)(c)(iv) requires a "STATEMENT OF THE CASE . . . with ample references to the specific pages of the record, or tape and digital counter number in the case of untranscribed videotape or audiotape recordings . . . supporting each of the statements narrated in the summary." Michael's statement of the case contained no references to the written record or videotape recordings. References to the record in the argument portion of his briefs are few and far between-certainly not "ample"-and nonexistent in his reply brief, in contravention of CR 76.12(4)(c)(v). The record on appeal is more than 200 pages, and we will not search the record to find support for Michael's arguments. See Smith v. Smith, 235 S.W.3d 1, 5 (Ky. App. 2005).
CR 76.12(4)(c)(v) also requires "citations of authority pertinent to each issue of law." Michael's briefs contain minimal citation to authority and are neither pertinent nor binding on this Court. We decline to consider arguments with no supporting authority. Reinle v. Commonwealth, 170 S.W.3d 417, 419 (Ky. App. 2005); Cherry v. Augustus, 245 S.W.3d 766, 781 (Ky. App. 2006); Hadley v. Citizen Deposit Bank, 186 S.W.3d 754, 759 (Ky. App. 2005). Because "[i]t is not our function as an appellate court to research and construct a party's legal arguments," we will not do so for Michael. Hadley, 186 S.W.3d at 759.
CR 76.12(4)(c)(v) further mandates a statement of preservation of alleged errors. Each argument must begin with "a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner." Michael's general statement of preservation for each argument is inadequate. The purpose of this rule "is not so much to ensure that opposing counsel can find the point at which the argument is preserved, it is so that we, the reviewing Court, can be confident the issue was properly presented to the trial court." Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012). It is unclear whether the issues were properly presented, making it difficult to review Michael's claims.
Lastly, Michael's reply brief includes a lengthy appendix with extraneous material not contained in the record and with little relevancy to the issues involved in this appeal. This is improper under CR 76.12(4)(c)(vii). Such materials will not be considered.
Compliance with CR 76.12 is mandatory. The Prewitts asked us to strike Michael's brief due to non-compliance.
It is a dangerous precedent to permit appellate advocates to ignore procedural rules. Procedural rules "do not exist for the mere sake of form and style. They are lights and buoys to make the channels of safe passage and assure an expeditious voyage to the right destination. Their importance simply cannot be disdained or denigrated."Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010) (quoting Louisville and Jefferson County Metropolitan Sewer Dist. v. Bischoff, 248 S.W.3d 533, 536 (Ky. 2007)).
In these situations, the Court of Appeals has three options: "(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, 328 S.W.3d at 696 (citing Elwell v. Stone, 799 S.W.2d 46, 47 (Ky. App. 1990)). In considering these options, we cannot disregard the procedural deficiencies contained in Michael's briefs. However, because Michael is acting pro se, we do not hold him to as stringent a standard as parties represented by counsel. Bischoff, 248 S.W.3d at 537. Rather than strike the brief as requested, we choose to review the issues for manifest injustice, which occurs when "the error seriously affected the fairness, integrity, or public reputation of the proceeding." Wise v. Commonwealth, 422 S.W.3d 262, 276 (Ky. 2013) (citations omitted).
Having reviewed the record, we ascertain no error constituting manifest injustice. The standard of review for a CR 60.02 motion is abuse of discretion. Soileau v. Bowman, 382 S.W.3d 888, 890 (Ky. App. 2012). Michael's arguments fail to demonstrate the trial court abused its discretion, or committed any error, in denying the CR 60.02 motion.
Though many of Michael's arguments suggest we conduct de novo review of the circuit court's summary judgment decision, such review is not procedurally warranted. This is an appeal of the trial court's denial of the CR 60.02 motion to set aside the summary judgment order. --------
Michael's five arguments contain a variety of unsubstantiated and non-meritorious claims with little case law to support them. These claims are unavailing. Additionally, many of the arguments could have been raised in the trial court prior to entry of summary judgment. To invoke CR 60.02 under these circumstances is antithetical to its purpose. "Civil Rule 60.02 is not intended merely as an additional opportunity to relitigate the same issues which could 'reasonably have been presented by direct appeal.'" McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997). Michael had the opportunity to respond to the Prewitts' motion for summary judgment and to appeal the trial court's decision. He cannot use CR 60.02 as a vehicle for asserting previously unavailing arguments again nor for asserting new arguments which could have been made in the normal progression of litigation.
Manifest justice would not occur were we to affirm the trial court's denial of the motion to set aside its prior grant of summary judgment. The trial court had sufficient evidence to find Michael knew of and permitted transfer of title to his vehicle. None of his subsequent motions provided proper, substantiated grounds for relief. Based on the record, the Knox Circuit Court did not err in denying Michael's CR 60.02 motion to vacate summary judgment.
For the foregoing reasons, we affirm the order of the Knox Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Michael Prewitt, pro se
Corbin, Kentucky BRIEF FOR APPELLEE: Amanda Hill
Corbin, Kentucky