Thomas Byrd Lawhon Jr. v. Kentucky Tax Bill Servicing, Inc. ( 2021 )

RENDERED: SEPTEMBER 3, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1653-MR
THOMAS BYRD LAWHON, JR. APPELLANT
APPEAL FROM OWEN CIRCUIT COURT
v. HONORABLE REBECCA LESLIE KNIGHT, JUDGE
ACTION NO. 17-CI-00048
KENTUCKY TAX BILL SERVICING, INC.;
COMMONWEALTH CD FUND, LLC;
AND PEOPLES BANK & TRUST COMPANY APPELLEES
OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; MAZE AND K. THOMPSON, JUDGES.
MAZE, JUDGE: Thomas Byrd Lawhon, Jr. (Lawhon) appeals from a foreclosure
judgment and order of sale by the Owen Circuit Court. He raises three allegations
of error, none of which are properly preserved on appeal. Finding no manifest
injustice meriting relief, we affirm.
On May 12, 2017, Kentucky Tax Bill Servicing, Inc. (KTBS) filed
this foreclosure action, alleging that it was the owner of a certificate of
delinquency for 2015 property taxes owed on Lawhon’s real property located in
Owen County, Kentucky. Due to their potential interests in the real property, the
complaint named Owen County and the recorded lienholders on the property,
including Commonwealth CD Fund, LLC (CCDF) and Peoples Bank and Trust Co.
(PBT).1 All named parties were served by certified mail except Lawhon, who was
served by Warning Order Attorney. KTBS, CCDF, and PBT each sought judicial
sale of the property to satisfy their respective liens.
While Lawhon did not respond to the initial complaint or cross-
claims, he became aware of the action in July 2017. In August 2017, Lawhon filed
a motion objecting to the foreclosure and stating that the service address used was
not valid. He also argued that KTBS’s complaint failed to comply with Local Rule
709(A)(3). In response, KTBS moved to file an amended complaint, which the
trial court granted. Lawhon filed an answer to the amended complaint. In addition
to objecting to the foreclosure, Lawhon alleged misconduct by KTBS’s counsel,
“larceny,” and “slander of title” against a mobile home located on the property
owned by Robert Iles. Lawhon also asserted claims against CCDF and PBT and
requested relief from several judgments against the property.
1
KTBS also named any “unknown spouse” of Lawhon. It was subsequently determined that
Lawhon is unmarried.
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On November 18, 2018, KTBS and CCDF moved for summary
judgment against Lawhon and the real property. PBT filed its own motion on
November 20, 2018. They also filed motions for summary judgment on Lawhon’s
counterclaims. Due to improper service of the motions, the trial court denied the
summary judgment on the claims brought by KTBS, CCDF, and PBT. The trial
court also vacated its prior order referring the matter to the Master Commissioner.
But in a separate order, the trial court granted the summary judgment motions on
Lawhon’s counterclaims, concluding that he failed to state any grounds for relief.
Following entry of those orders, KTBS, CCDF, and PBT renewed
their motions for summary judgment. The trial court granted the motions on
September 10, 2019. On October 3, 2019, the trial court entered a judgment and
order of sale of the property. In the description of the property to be sold, the
judgment specified that “[t]here is not a mobile home, doublewide and/or
manufactured home on the property or included in the sale.” The property was
sold at a sale by the Master Commissioner on November 15, 2019. Prior to the
sale, Lawhon filed a notice of appeal, but he did not file a bond to suspend the
sale.2 Additional facts will be set forth below as necessary.
2
On February 13, 2020, the motion panel of this Court denied Lawhon’s motion for intermediate
relief to stay the judicial sale of the property based upon Lawhon’s failure to file a bond. The
Court also found the matter was moot because the property had already been sold at
Commissioner’s Sale.
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As an initial matter, we must note that Lawhon’s pro se brief fails to
substantially comply with the appellate rules. His statement of the case includes a
rough chronological summary of the facts and procedural events in the trial court
with citations to the trial court record. CR3 76.12(4)(c)(iv). However, his brief
fails to include any citations to legal authority pertinent to the issues presented on
appeal or any references to the record showing that these issues were preserved for
review. CR 76.12(4)(c)(v). It is not the task of an appellate court to construct
arguments for parties, Smith v. Smith, 235 S.W.3d 1, 5 (Ky. App. 2006), or to
determine how an issue is preserved for review. Phelps v. Louisville Water Co.,
103 S.W.3d 46, 53 (Ky. 2003). This Court has held that “[a]ssertions of error
devoid of any controlling authority do not merit relief[,]” and so we may
summarily affirm a trial court if an appellant’s brief fails to comply with CR 76.12.
Koester v. Koester, 569 S.W.3d 412, 414 (Ky. App. 2019). See also Clark v.
Workman, 604 S.W.3d 616 (Ky. App. 2020).
While non-compliance with CR 76.12 is not automatically fatal, we
would be well within our discretion to strike Lawhon’s brief or dismiss his appeal
for failure to comply. Curty v. Norton Healthcare, Inc., 561 S.W.3d 374, 378 (Ky.
App. 2018). On the other hand, we must also point out that KTBS, CCDF, and
PBT each failed to file a responsive brief in this appeal, which is also subject to
3
Kentucky Rules of Civil Procedure.
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sanction under CR 76.12(8)(c). Under the circumstances, we elect to review the
issues raised in Lawhon’s brief for manifest injustice alone. Clark, 604 S.W.3d at
619.
Lawhon first argues that KTBS’s original complaint was defective
under Local Rule4 709(A)(3). In pertinent part, that rule requires that any
complaint for foreclosure shall state if there is a mobile home, doublewide, or
manufactured home on the property. Lawhon states that there is a mobile home on
the property belonging to Robert Iles and that KTBS’s original complaint failed to
note its presence or whether the mobile home was subject to the foreclosure action.
But as discussed above, KTBS corrected this omission by filing an
amended complaint on September 21, 2017. Lawhon presents no authority
supporting his bare contention that the defect in the original complaint would
affect the validity of the judgment. Furthermore, he does not argue that the
amended complaint failed to comply with the local rule. Finally, we again note
that the foreclosure sale specifically excluded the mobile home owned by Robert
Iles. Therefore, we find no manifest injustice on this ground.
Lawhon next complains about the improper service of the original
complaint and the motions for summary judgment. The trial court addressed these
matters in the orders below and specifically criticized KTBS, CCDF, and PBT for
4
Local Rules of Practice for the 15th Judicial Circuit, Carroll, Grant, and Owen Counties.
(Approved Jul. 8, 2013).
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their failures to properly serve Lawhon in this action. But as noted above, the
court remedied these defects by allowing Lawhon to file his answer and setting
aside any summary judgments entered based on the improper service. Lawhon
does not identify any prejudice he suffered following entry of these orders.
Therefore, we decline to address the matter further.
Finally, Lawhon contends that the property description in the
judgment and order of sale was not consistent with the descriptions in his chain of
title. He also asserts that KTBS failed to conduct a proper title search prior to
filing this action and a portion of the property sold belongs to another party. In
support of this argument, Lawhon moves to supplement the record with the
relevant deeds supporting these claims.
However, the inclusion of matters and pleadings outside of the record
on appeal is prohibited by CR 76.12(4)(c)(vii). In the absence of any motion to
take judicial notice of these materials, we are constrained to disregard any exhibits
that were not part of the record before the circuit court. See U.S. Bank, NA v.
Hasty, 232 S.W.3d 536, 542 (Ky. App. 2007). Lawhon failed to object to the
property description in the trial court’s order of sale. We must also note that
matters relating to the judicial sale are not properly raised in this appeal. See
Young v. U.S. Bank, Inc., 343 S.W.3d 618, 620 (Ky. App. 2011). Finally, we
question whether Lawhon has standing to assert the potential ownership interests
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of third parties who are not part of this action. Under the circumstances, Lawhon
has failed to identify any manifest injustice meriting relief. We shall deny his
motion to supplement the record by separate order.
Accordingly, we affirm the foreclosure judgment and order of sale
entered by the Owen Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEES.
Thomas Byrd Lawhon, Jr., pro se
Frankfort, Kentucky
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