Opinion
NO. 2013-CA-000376-MR NO. 2013-CA-000402-MR
03-28-2014
GILBERT ROARK APPELLANT v. WILLIAM RAY ROARK AND TRIAD FINANCIAL SERVICES, INC. APPELLEES AND TRIAD FINANCIAL SERVICES, INC. CROSS-APPELLANT v. GILBERT ROARK AND WILLIAM RAY ROARK CROSS-APPELLES
BRIEFS FOR APPELLANT/ CROSS-APPELLEE GILBERT ROARK: Donna R. Hale Stanton, Kentucky BRIEF FOR APPELLEE/ CROSS-APPELLEE WILLIAM RAY ROARK: Jennifer L. Conner John C. Collins Salyersville, Kentucky BRIEF FOR APPELLEE/ CROSS-APPELLANT TRIAD FINANCIAL SERVICES, INC.: Christopher M. Hill Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM WOLFE CIRCUIT COURT
HONORABLE FRANK ALLEN FLETCHER, JUDGE
ACTION NO. 11-CI-00099
OPINION
AFFIRMING
BEFORE: DIXON, LAMBERT AND NICKELL, JUDGES. DIXON, JUDGE: Gilbert Roark ("Gilbert") appeals a Wolfe Circuit Court order enforcing the terms of the court's February 27, 2012, judgment ordering the sale of a parcel of land. Triad Financial Services, Inc. ("Triad"), also cross-appeals from that order. We affirm.
Gilbert owned a farm in Wolfe County, and in February 2010, he purchased an adjoining 47-acre tract of land. Gilbert's brother, William Ray Roark ("Ray"), expressed an interest in purchasing a portion of the acreage from Gilbert, and Ray began making improvements to part of the property. Ray purchased a manufactured home for the property, installed water and septic systems, and built a two-car garage. After Ray made the improvements, the brothers failed to reach an agreement for Ray to purchase the property. In May 2011, Ray filed a complaint against Gilbert seeking compensation for the improvements to the property. The parties disputed the value of the improvements, and the court ultimately rendered a judgment directing the master commissioner to sell the two-acre lot where the manufactured home and other improvements were located. Following the court's judgment, Gilbert sought a writ of prohibition to prohibit the enforcement of the order of sale; however, this Court ruled that Gilbert was not entitled to extraordinary relief because the trial court's judgment was a final and appealable order. Roark v. Fletcher, 2012-CA-000546 (Jim. 6, 2012). Thereafter, a panel of this Court denied Gilbert's motion for leave to file a belated appeal. Roark v. Roark, 2012-CA-001090 (Aug. 9, 2012).
In November 2012, over Gilbert's objection, Ray filed a survey and map of the two-acre lot with the trial court. Gilbert filed several motions with the court, including a motion to vacate the order of sale pursuant to CR 60.02, and a motion to dismiss Ray's complaint. The court denied Gilbert's motions and granted a motion to intervene filed by Triad, which had a security interest in the manufactured home. On January 29, 2013, the court rendered an order that incorporated the legal description of the real estate to be sold pursuant to the court's order of February 27, 2012. This appeal and cross-appeal followed.
Gilbert contends he was denied due process, that the court's order violated the statute of frauds, and that the court abused its discretion. Gilbert's arguments on appeal rely on his characterization of the court's order of January 29, 2013, as the final judgment and order of sale. However, after careful review of the record, we conclude Gilbert's arguments were not preserved for appellate review.
This characterization is incorrect. The order of sale rendered on February 27, 2012, was a final order; accordingly, the circuit court's jurisdiction was limited to enforcing its own order, removing impediments to enforcement, or setting aside the order pursuant to a motion made under CR 60.02. Young v. U.S. Bank, Inc., 343 S.W.3d 618, 621 (Ky. App. 2011). The court's order of January 29, 2013, provided the legal description of the property to enforce the terms of its prior final judgment.
First, Gilbert failed to include a statement of preservation for any of his appellate arguments. CR 76.12(4)(c)(v) requires ". . . 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." Further, our review of the record indicates that the trial court was not given an opportunity to consider the alleged errors raised by Gilbert. "The function of the Court of Appeals is to review possible errors made by the trial court, but if the trial court had no opportunity to rule on the question, there is no alleged error for this court to review." Kaplon v. Chase, 690 S.W.2d 761, 763 (Ky. App. 1985). It is apparent that Gilbert made similar arguments regarding due process and the statute of frauds in his CR 60.02 motion, which related to the February 27, 2012, order of sale. However, in his appellate brief, Gilbert relates these issues to the order of January 29, 2013, essentially characterizing it as the final order of sale. Quite simply, we are not persuaded by Gilbert's attempt to use this appeal to revive issues that he failed to bring in a timely direct appeal of the final judgment rendered in February 2012. We decline to address Gilbert's unpreserved claims, as he "cannot feed one can of worms to the trial judge and another to the appellate court." Triplett v. Triplett, 414 S.W.3d 11, 15-16 (Ky. App. 2013).
In its cross-appeal, Triad contends that the trial court erred by failing to protect Triad's interest in the collateral by allowing Triad a credit bid and waiver of the purchase price deposit and bond.
Triad failed to identify whether this issue was preserved for appellate review; furthermore, Triad did not cite any legal authority to support its argument. CR 76.12(4)(c)(v).
The court permitted Triad to intervene in the action, stating that Triad's security interest in the manufactured home would be included in the distribution of the proceeds from the sale. For an intervening party to establish an interest in property that is the subject of a judicial sale, the party must assert its claim prior to the confirmation of sale and distribution of proceeds. Hindert v. Smith, 110 S.W.2d 454, 456 (Ky. 1937). Here, both Gilbert and Ray acknowledged Triad's interest in the manufactured home, and Triad properly asserted its interest in the collateral before the sale occurred. We conclude that Triad's interest was adequately protected by the court's order.
For the reasons stated herein, we affirm the order of the Wolfe Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT/
CROSS-APPELLEE
GILBERT ROARK:
Donna R. Hale
Stanton, Kentucky
BRIEF FOR APPELLEE/
CROSS-APPELLEE
WILLIAM RAY ROARK:
Jennifer L. Conner
John C. Collins
Salyersville, Kentucky
BRIEF FOR APPELLEE/
CROSS-APPELLANT
TRIAD FINANCIAL SERVICES,
INC.:
Christopher M. Hill
Frankfort, Kentucky