July 29, 2011 COA Minutes — Nos. 700-720 (21 decisions; 4 published)

July 29, 2011 COA Minutes —  Nos. 700-720 (21 decisions; 4 published)

702. CIVIL PROCEDURE.  DEFAULT JUDGMENT.
STATEWIDE ENVIRONMENTAL SERVICES, INC., ET AL.
VS.
FIFTH THIRD BANK
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
DIXON (CONCURS) AND KELLER (CONCURS)
2009-CA-001143-MR
TO BE PUBLISHED
MARION

ACREE, JUDGE: Two corporate appellants and four individual appellants appeal judgments entered against them as makers and guarantors, respectively, on a single note in favor of appellee, Fifth Third Bank. This case presents issues of civil procedure, namely whether the Marion Circuit Court erred: (1) in granting a motion for default judgment against the corporate appellants, and (2) in granting summary judgment against the individual appellants. We affirm.

STD OF REVIEW:

When a defendant against whom a default judgment is entered fails to move the circuit court to set it aside, but instead appeals the default judgment directly, review is limited to determining whether the pleadings were sufficient to uphold the judgment and whether the appellant was actually in default.6    Jeffrey v. Jeffrey, 153 S.W.3d 849, 851 (Ky. App. 2004), disc. rev. denied (No. 2004-SC-000373) (February 9, 2005).

The corporate appellants argue that, on review, this Court should apply the standard established for a circuit court’s consideration of a motion to set aside a default judgment articulated in PNC Bank, N.A. v. Citizens Bank of Northern Kentucky, Inc., 139 S.W.3d 527 (Ky. App. 2003), namely:
A party seeking to have a default judgment set aside must show good cause; i.e., the moving party must show “(1) a valid excuse for the default; (2) a meritorious defense to the claim; and (3) absence of prejudice to the non- defaulting party.”
PNC Bank, 139 S.W.3d at 530-31 (quoting Sunrise Turquoise, Inc. v. Chemical Design Co., Inc., 899 S.W.2d 856, 859 (Ky. App. 1995)). As established earlier in this opinion, this is not the proper standard.

However, even if we were to apply this standard, we would be unpersuaded. As we have said under similar circumstances, “[c]arelessness by a party or his attorney [in responding to a complaint and summons] is not reason enough to set an entry [of default judgment] aside.” Perry v. Central Bank & Trust Co., 812 S.W.2d 166, 170 (Ky. App. 1991). In the case sub judice, as in Perry, “the excuses for failing to answer are weak, as are the defenses, and we cannot say it was an error or abuse of discretion for the trial court . . . to grant the default judgment[.]” Id.

When the corporate appellants, through their respective presidents, served and filed answers on their behalves, they “appeared in the action[.]” CR 55.01. As we said in Leedy v. Thacker, 245 S.W.3d 792 (Ky. App. 2008), "The word “appeared” as it is employed in CR 55.01 has been construed to mean that the defendant has voluntarily taken a step in the main action that shows or from which it may be inferred that he has the intention of making some defense. [citation and internal quotation marks omitted]."
Leedy, 245 S.W.3d at 796. However, the appellants overstate both the legal significance of their “appearance,” and the applicability of Leedy to the facts of this case.
Contrary to the appellants’ suggestion, an appearance alone, particularly a technically deficient appearance, will not insure a defendant against the entry of a default judgment; the appearance merely entitles the defendant to notice if a motion for default judgment is filed. We emphasized that point in Leedy, stating,
When an appearance has been made, the party seeking a default judgment must comply with the three-day notice rule. Failure to do so is a “fatal defect” in the proceedings and requires the judgment be set aside. [citation omitted]. A default judgment obtained without giving the notice required by the rule raises questions of due process, rendering the judgment void within the meaning of CR 60.02(e). [citation and internal quotation marks omitted].

704. CRIMINAL PROCEDURE. COMPETENCY TO STAND TRIAL.
SANDS (ROBERT HARLIN)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
WINE (PRESIDING JUDGE)
CLAYTON (CONCURS) AND COMBS (CONCURS IN PART, DISSENTS IN PART, AND FILES SEPARATE OPINION)
2009-CA-001824-MR
2009-CA-001825-MR
TO BE PUBLISHED
JEFFERSON

WINE, JUDGE: Robert Harlin Sands appeals his conviction of multiple counts under two separate indictments in the Jefferson Circuit Court. Finding no error in the trial court’s decision not to set aside his pleas of guilty, we affirm the conviction of August 28, 2009.

After our review, we agree that the court had substantial evidence to find that Sands was competent. Although Sands was diagnosed with personality disorders, these disorders per se do not render him incompetent. In Bray v. Commonwealth, 177 S.W.3d 741 (Ky. 2005), the defendant had been diagnosed with paranoid personality disorder but was determined nonetheless to be legally competent to understand the nature of the charges against him and to assist in his own defense.
We have previously recognized that, even in the face of unanimous medical opinion of incompetency, a trial court may find a defendant competent and able to stand trial. “A judge is also entitled to consider the testimony of laypersons and his own observations and impressions based upon the conduct and testimony of the accused at the hearing.” Scott v. Commonwealth, 2005 WL 2045961 (Ky. App. 2005). See also, Taylor v. Commonwealth, 2010 WL 2696340 (Ky. App. 2010).

708.CRIMINAL PROCEDURE.  SEARCH AND SEIZURE.
WARD (TIMOTHY S.)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
DIXON (CONCURS) AND VANMETER (CONCURS)
2010-CA-000732–MR
TO BE PUBLISHED
MUHLENBERG

LAMBERT, JUDGE: Timothy Ward entered a conditional guilty plea to possession of a controlled substance in the first degree and being a persistent felony offender in the second degree after his motion to suppress was denied by the Muhlenberg Circuit Court. After careful review, we affirm the denial of the motion to suppress and Ward’s subsequent judgment and sentence.

To be sure, in Epps, the Kentucky Supreme Court found an unreasonable delay when ninety minutes elapsed between the stop and the arrest, of which fifteen elapsed before the dog sniff began, and another thirty to forty minutes elapsed before the dog alerted. Id. at 811. In the case at bar, only thirty- three minutes elapsed between the stop and the arrest. Eight to ten of those Minutes elapsed before the dog sniff began, and another ten to fifteen minutes elapsed before the dog alerted three times. This delay was not unreasonable and did not warrant suppression of the drugs subsequently discovered and seized.
Accordingly, we affirm the judgment and sentence of the Muhlenberg Circuit Court.

710.  BUSINESS LAW.  SHAREHOLDER LABILITY.  CIVIL PROCEDURE (APPEAL AND SUMMARY JUDGMENT TIMELINE)
MARTIN (ED)
VS.
PACK'S INC., ET AL.
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
VANMETER (CONCURS) AND ISAAC (CONCURS)
2010-CA-001048-MR
TO BE PUBLISHED
ROWAN

THOMPSON, JUDGE: Ed Martin appeals the Rowan Circuit Court’s granting of summary judgment in favor of Pack’s Inc. We affirm.

Our case law provides that a material alteration in the terms of an existing agreement cannot be enforced unless a consideration for the change enures to the party whom the new agreement is being enforced against. Pool et al. v. First Nat. Bank of Princeton, 287 Ky. 684, 155 S.W.2d 4, 6 (1941). Consideration is defined as a benefit conferred to a promisor or a detriment incurred by a promisee. Huff Contracting v. Sark, 12 S.W.3d 704, 707 (Ky.App. 2000). A benefit occurs when the promisor, in exchange for a promise, obtains a legal right to which he was not otherwise entitled. A detriment occurs when the promisee, in exchange for the promise, waives a right to which he was otherwise entitled to exercise. Id.
Martin could rely on the first agreement to deny personal liability if that agreement was the only exchange the parties made during their relationship. However, Pack’s, in exchange for waiving its right to file a lien, and Martin, in exchange for agreeing to pay Pack’s, executed an agreement that permitted Martin to receive money from Kroger for the completion of the gas station. Thus, Pack’s waived its right to file a lien so that Martin could obtain payment from Kroger. This lien-waiver agreement was for new consideration by both parties and, thus, was enforceable against Martin as a post-dissolution incurred debt.
Martin contends that the trial court’s reliance on Forleo was improper because the unpublished opinion was in direct conflict with published case law. Martin argues that Fairbanks Arctic Blind Co. v. Prather & Associates, Inc., 198 S.W.3d 143 (Ky.App. 2005), is controlling published law on the issue and, thus, should have been applied without consideration of Forleo under CR 76.28(4)(c).

MUnder the facts of this case, Martin has produced no affirmative evidence how this conduct constituted winding up his business. A party “opposing a properly supported summary judgment motion cannot defeat it without presenting at least some affirmative evidence showing that there is a genuine issue of material fact for trial.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 482 (Ky. 1991). After Pack’s presented evidence showing the circumstances of Martin’s action required a finding of personal liability, Martin failed to present any affirmative evidence to show a genuine issue of material fact. Accordingly, the trial court’s judgment was not in violation of KRS 271B.14-050.
Furthermore, we have previously addressed the essence of Martin’s KRS 271B.6-220(2) claim. To reiterate, Martin cannot be shielded from personal liability by virtue of the statute, because his corporation was dissolved at the time of his actions. Therefore, KRS 271B.6-220(2) provides Martin no relief.
Martin argues that he cannot be individually liable in an amount in excess of his equity in the corporation at the time his ownership of the corporation terminated. He contends that he transferred all of his interest in Southeastern to Collinsworth at a substantial loss, subsequent to his dealings with Pack’s and, thus, could not be individually liable to Pack’s because he had no equity in the corporation.

Notwithstanding Martin’s argument, he has failed to cite where he preserved this argument by presenting the facts to the trial court. “It is well-settled that a trial court must be given the opportunity to rule in order for an issue to be considered on appeal, and the failure of a litigant to bring [a matter] to the trial court's attention is fatal to that argument on appeal.” Baker v. Weinberg, 266 S.W.3d 827, 835 (Ky.App. 2008). Accordingly, we will not address Martin’s argument because he did not present this argument to the trial court.
Martin contends that the Rowan Circuit Clerk’s Office’s failure to timely mail his counsel a copy of the summary judgment prevented him from filing a motion to reconsider pursuant to CR 59.05. He contends that the clerk’s office mailed the judgment to him eleven days after the judgment was entered. Thus, he argues that the clerk’s error prevented him from filing a CR 59.05 motion.5
Assuming Martin is correct regarding the late mailing, he has failed to state what new facts he would have produced to the trial court to create a genuine issue of material fact to preclude summary judgment. As stated in Hopkins v. Ratliff, 957 S.W.2d 300, 301 (Ky.App. 1997), a litigant cannot utilize a motion pursuant to CR 59.05 to raise arguments and introduce evidence that could and should have been presented to the trial court before the judgment was issued.6
5 CR 59.05 provides that “[a] motion to alter or amend a judgment, or to vacate a judgment and enter a new one, shall be served not later than 10 days after entry of the final judgment.”
6 See James v. James, 313 S.W.3d 17 (Ky. 2010), for a discussion of reinvesting the trial court with authority to modify a judgment after the expiration of the ten-day period in CR 59.05.
Therefore, we conclude that any mailing error was harmless because Martin has not stated what new evidence or arguments that he would have presented to the trial court which could not have been previously presented. Id.
Martin contends that the Rowan Circuit Clerk’s Office’s failure to timely mail his counsel a copy of the summary judgment prevented him from filing a motion to reconsider the trial court’s award of interest to Pack’s. However, Martin has failed to make specific arguments regarding what he would have presented to the trial court. Accordingly, we conclude any error was harmless.
For the foregoing reasons, the Rowan Circuit Court’s granting of summary judgment is affirmed.

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711
STEVENS (THOMAS A.), ET AL.
VS.
FLYNN (GINA), ET AL.
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
LAMBERT (CONCURS) AND WINE (CONCURS)
2010-CA-001096-MR
NOT TO BE PUBLISHED
ESTILL

NICKELL, JUDGE: Thomas Stevens (“Stevens”), both individually and as administrator of the estate of his unborn grandchild, appeals from orders of the Estill Circuit Court awarding summary judgment to Gina Flynn and Progressive Direct Insurance Company, dismissing a wrongful death action following a fatal traffic collision that killed his pregnant daughter and her unborn fetus, and denying a subsequent motion to alter, amend or vacate. The single question posed is whether Kentucky law allows a civil suit to be maintained for the wrongful death of a nonviable fetus whose life is ended by another’s negligence. Having reviewed the briefs, the record and the law, we hold it does not and affirm.

713
AHMETOVIC (ALISA), ET AL.
VS.
TAHIROVIC (MUHAREM)
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
THOMPSON (CONCURS) AND WINE (CONCURS)
2010-CA-001558-MR
NOT TO BE PUBLISHED
WARREN

KELLER, JUDGE: Alisa Ahmetovic (Alisa) and Sunita Bahonjic (Sunita) (collectively the Appellants) appeal from a judgment of the Warren Circuit Court based upon a jury verdict in favor of Muharem Tahirovic (Tahirovic). For the following reasons, we affirm.

Finally, we note that the Appellants cite to cases from other jurisdictions in support of their argument that attorneys cannot impeach their own clients. Because we do not believe that defense counsel impeached Tahirovic, we do not need to address whether or not an attorney can impeach his own client.

On appeal, the Appellants first contend that the trial court erred by allowing defense counsel to call Kickarillo as a witness. Specifically, the Appellants argue that, by calling Kickarillo as a witness, defense counsel improperly impeached the testimony of his own client. We review the admission of evidence for an abuse of discretion. See Commonwealth v. King, 950 S.W.2d 807, 809 (Ky. 1997) (“It is a well-settled principle of Kentucky law that a trial court ruling with respect to the admission of evidence will not be reversed absent an abuse of discretion.”). An abuse of discretion arises when the court’s decision is arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Kuprion v. Fitzgerald, 888 S.W.2d 679, 684 (Ky. 1994).
At the outset, we note that the Appellants have failed to designate where in the record Kickarillo’s testimony has impeached Tahirovic. See Kentucky Rule of Civil Procedure (CR) 76.12(4)(c)(v). It is not the burden of the Court to search the record to find proof of the Appellants’ claims. See Phelps v. Louisville Water Co., 103 S.W.3d 46, 53 (Ky. 2003). Under such circumstances, we are authorized to strike the brief entirely, refuse to consider those claims that do not comply with the rule, or review the non-compliant allegations of error for manifest injustice rather than considering them on the merits. Cherry v. Augustus, 245 S.W.3d 766, 781 (Ky. App. 2006); Elwell v. Stone, 799 S.W.2d 46, 47-48 (Ky. 1990). In this case, we choose not to do so.