Patrick J. O'Connell v. Jonna Z. Bianco ( 2021 )

RENDERED: DECEMBER 10, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0629-MR
PATRICK J. O’CONNELL APPELLANT
APPEAL FROM SHELBY CIRCUIT COURT
v. HONORABLE CHARLES R. HICKMAN, JUDGE
ACTION NO. 13-CI-00109
JONNA Z. BIANCO APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, McNEILL, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Patrick J. O’Connell, pro se, brings this appeal from Findings
of Fact, Conclusions of Law and Judgment entered on March 22, 2019, in the
Shelby Circuit Court, in favor of Jonna Z. Bianco upon completion of a bench trial.
Background
In 2010, Bianco, a resident of Tennessee, entered into an oral
agreement with O’Connell whereby Bianco would provide cattle to O’Connell who
would raise and care for them in Kentucky until calves were born and weaned,
after which they would be sold and Bianco and O’Connell would split the sales
proceeds. The parties did not reduce their agreement to writing. Bianco delivered
the cattle to O’Connell in Kentucky in 2010.
The relationship between Bianco and O’Connell deteriorated and, in
March 2012, O’Connell filed what purported to be an agister’s lien under
Kentucky Revised Statutes (KRS) 376.400.1 O’Connell sent Bianco a letter
1
Kentucky Revised Statutes (KRS) 376.400 provides in relevant part as follows:
(1) Any owner or keeper of a livery stable or other business providing for the care
of animals, and a person feeding, grazing, or caring for any animal for
compensation, shall, except as provided in subsection (2) of this section, have a
lien for one (1) year upon the animal placed in the stable, kennel, or similar
facility, or put out to be fed or grazed by the owner, for his or her reasonable
charges for keeping, caring for, feeding, and grazing the animal. . . .
(2) Any person who has agreed to provide feed or care for an animal for
compensation may, in lieu of the lien provided for in subsection (1) of this
section, cause the animal to be sold if:
(a) The owner of the animal is at least forty-five (45) days in arrears on his or
her payment for the care and feeding of the animal, and the animal is in the
possession of the person or business providing for the care of the animal;
(b) The proposed sale is published in one (1) or more newspapers and qualified
pursuant to KRS Chapter 424, with a publication area in the locale where
the person providing care for the animal is located and the locale where the
owner of the animal was last known to reside; and
(c) Written notice of the sale is sent by certified mail, return receipt requested,
or registered mail, to the owner of the animal, addressed to such person at
his or her last known address, and to all lien holders of record with the
Kentucky Secretary of State and the local county clerk’s office, at least ten
(10) days before the sale is conducted.
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informing her of the lien, but she did not respond. Soon after, at least some of the
calves born while in the possession of O’Connell were stolen. O’Connell did not
inform Bianco of the theft. More cattle were later stolen and, again, O’Connell did
not inform Bianco of the theft. O’Connell ultimately sold some cows but did not
share any of the sales proceeds with Bianco.
In March 2013, Bianco filed this action, pro se, in Shelby Circuit
Court. While inartfully drafted, the complaint appears to assert a claim for breach
of contract and conversion of Bianco’s cattle by O’Connell. O’Connell filed an
answer and counterclaim, but did not seek a more definite statement of the claims
asserted by Bianco. The answer filed by O’Connell did not question the court’s
jurisdiction or assert the statute of frauds as a defense.2 O’Connell’s counterclaim
against Bianco asserted a breach of contract.
The case slowly meandered its way to a two-day bench trial held in
May 2018. On March 22, 2019, the court issued extensive findings of fact,
conclusions of law and judgment. After noting that the parties did not agree on
even “the most basic elements of their agreement” and had failed to provide
“virtually any documentation,” the court found the agister’s lien was invalid and
2
See KRS 371.010(7) (“No action shall be brought to charge any person . . . [u]pon any
agreement that is not to be performed within one year from the making thereof . . . unless the
promise, contract, agreement, representation, assurance, or ratification, or some memorandum or
note thereof, be in writing and signed by the party to be charged therewith[.]”).
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unenforceable because O’Connell had not complied with the requirements of KRS
376.400. Record (R.) at 787. Finding Bianco’s testimony generally more credible
than O’Connell, the court concluded that the parties had never agreed that
O’Connell would be reimbursed for his expenses and that his “only compensation
in the deal would be his 50% share of the proceeds upon the sale of the calves.” R.
at 789. The court concluded O’Connell breached the oral agreement and converted
the cattle by selling them pursuant to an invalid lien. The court also agreed with
Bianco’s assertion that O’Connell was negligent in his duty to care for the cattle by
selling “a large portion of the herd and failing to safeguard them which resulted in
the 63 calves and a dozen cows being stolen in two separate thefts.” R. at 790.
The court ultimately awarded Bianco $103,200 (86 cows x $1,200 per cow) in
damages. The court also awarded Bianco $25,000 in punitive damages.
On April 1, 2019, Bianco filed a timely motion to alter, amend or
vacate under Kentucky Rule of Civil Procedure (CR) 59.05, asking the court to
award her additional damages, including the value of the calves born after the
cattle were delivered to O’Connell. On April 4, 2019 – thirteen days after the
judgment was entered, O’Connell served his own CR 59.05 motion, which was
untimely and not considered by the court.
Before the trial court ruled on Bianco’s CR 59.05 motion, O’Connell
filed this appeal. O’Connell then discharged his counsel and sought to disqualify
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the trial judge. While that disqualification motion was pending before the Chief
Justice, O’Connell continued to file documents raising new arguments, including
that Bianco lacked standing and the court lacked jurisdiction.
In December 2019, the Chief Justice denied O’Connell’s motion to
disqualify the circuit court judge. O’Connell continued to file documents repeating
his insistence that, among other things, the circuit court lacked jurisdiction. On
February 12, 2020, the circuit court denied Bianco’s CR 59.05 motion. O’Connell
then filed an amended notice of appeal.3
Procedural Irregularities and Deficient Appellant’s Brief
Before addressing the arguments raised by O’Connell, this Court must
first address the significant procedural irregularities below and serious deficiencies
with O’Connell’s brief. 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.” A timely CR 59.05 motion tolls
the thirty-day period to file an appeal under CR 73.02(1)(e).
But O’Connell served his CR 59.05 motion thirteen days after the trial
court’s findings of fact, conclusions of law and judgment was entered. Therefore,
his CR 59.05 motion was untimely. See Commonwealth v. Steadman, 411 S.W.3d
3Briefing and the resultant issuance of this Opinion were delayed significantly due to the appeal
having to be stayed until the trial court ruled on Jonna Z. Bianco’s Kentucky Rules of Civil
Procedure (CR) 59.05 motion.
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717, 726-27 (Ky. 2013). In fact, at a hearing on May 9, 2019, O’Connell’s then-
counsel admitted the CR 59.05 motion was untimely. In addition to being fatally
tardy, O’Connell’s CR 59.05 motion and his subsequent idiosyncratic post-
judgment filings (many of which do not facially seek relief and do not fall under
any accepted rules governing post-judgment filings) contain new arguments which
should have been raised prior to the issuance of a final judgment. See Ford v.
Ford, 578 S.W.3d 356, 365 (Ky. App. 2019) (“As the evidence was available to
Paula and could have been presented to the trial court before it rendered the
judgment at issue, it was not properly included as part of Paula’s CR 59.05
motion.”).
Accordingly, O’Connell’s CR 59.05 motion and subsequent post-
judgment filings did not present a proper basis for the trial court to re-examine, or
amend, its judgment. Thus, the issues first raised in the post-judgment filings were
not properly preserved for appellate review. Simply put, even pro se parties cannot
wait until after the entry of a final judgment to raise non-jurisdictional arguments
which could have been raised at or before trial. See Ford, 578 S.W.3d at 366(declining to consider on appeal arguments first made via CR 59.05 motion);
Florman v. MEBCO Ltd. P’ship, 207 S.W.3d 593, 607 (Ky. App. 2006) (“The
scope of review is limited to the theory or theories upon which the case was tried.
The Court of Appeals is one of review and is not to be approached as a second
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opportunity to be heard as a trial court. An issue not timely raised before the
circuit court cannot be considered as a new argument before this Court.”) (internal
quotation marks, citations, and footnote omitted).
In this case, O’Connell’s post-judgment filings were even more
problematic since he had already filed a notice of appeal before submitting most of
them. “[I]t is the law in Kentucky that, with certain narrowly circumscribed
exceptions, the circuit court is divested of jurisdiction over a case when a notice of
appeal is filed[.]” Young v. Richardson, 267 S.W.3d 690, 695 (Ky. App. 2008).
The situation here does not facially fall within those narrow exceptions. So, the
untimely filings did not afford the circuit court a proper mechanism to issue any
orders pertaining to the issues involved in this appeal – indeed, any such orders
would have been nullities. Id. at 696. “It is axiomatic that two courts cannot
exercise jurisdiction over the same issue at the same time.” Id. at 697.
In short, the proper avenues to seek post-judgment relief are narrow
and tightly circumscribed. Parties disappointed by a final judgment are not free to
then submit untimely, haphazard filings raising a laundry list of grievances which
they could have raised earlier. Instead, issues must be properly presented to the
trial court at a proper time via a proper motion. Because O’Connell’s post-
judgment submissions were untimely and irregular, the non-jurisdictional issues
first raised therein and in his brief are not proper grounds for appellate relief.
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In addition, as concerns his brief, O’Connell’s has failed to comply
with the requirements of CR 76.12. First, his brief exceeds the 25-page limit
imposed by CR 76.12(4)(b)(i). There are only 25 numbered pages in the brief, but
the three-page statement of the case is numbered using Roman numerals such that
the argument section which follows the statement of the case begins with Arabic
numeral one. In other words, his brief is 28 substantive pages long.
Second, the three-page-long statement of the case section of
O’Connell’s brief contains no citations to the record, even though CR
76.12(4)(c)(iv) requires “ample references” to the record.4 We have held that
citations to the record must “permeate both the Statement of the Case and the
Argument[.]” Clark v. Workman, 604 S.W.3d 616, 619 (Ky. App. 2020).
Finally, O’Connell’s brief contains numerous incorrect assertions as to how his
arguments were preserved for review, as we will discuss throughout this Opinion.
We are cognizant that O’Connell is proceeding pro se. But “[a]ll of
the rules for preparing a brief before this Court are contained in CR 76.12 or rules
cited therein. Lack of a legal education is not an impediment to following these
rules.” Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010). O’Connell’s pro
se status “does not exempt him from the rules. He is bound by the same rules of
4
Similarly, Jonna Z. Bianco’s two-page-long counterstatement of the case unfortunately contains
no specific citations to the record, in plain contravention of CR 76.12(4)(d)(iii).
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appellate procedure as his opposing counsel and any other party before this court.”
Koester v. Koester, 569 S.W.3d 412, 415 (Ky. App. 2019).
CR 76.12(8)(a) provides that a brief may be stricken for failure to
comply with any substantial requirement of CR 76.12. Similarly, CR 73.02(2)(a)
provides that an appeal may be dismissed for failure to comply with appellate
rules. Ford v. Commonwealth, 628 S.W.3d 147, 153-54 (Ky. 2021). We decline
to strike O’Connell’s brief or dismiss the appeal. Instead, we will take
O’Connell’s preservation citations at face value without independently scouring
the over 1,100-page record or video footage of the two-day bench trial to
determine if an issue was properly preserved elsewhere. Where the citations in
O’Connell’s brief do not show that the issue was actually or properly preserved
below, we have declined to review the argument since O’Connell has not requested
palpable error review. See Shepherd v. Commonwealth, 251 S.W.3d 309, 316 (Ky.
2008).
The Trial Court Had Subject Matter Jurisdiction and O’Connell
Waived Any Lack of Particular Case Jurisdiction
O’Connell’s first main argument is that the trial court lacked subject
matter jurisdiction. The precise contours of O’Connell’s meandering argument are
difficult to discern, but we construe it as an assertion that the circuit court lacked
jurisdiction because Bianco had a pending bankruptcy petition during some of the
time this case was pending in circuit court.
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We begin by noting that the parties have not provided a complete
record of Bianco’s bankruptcy petition in the record below. However, it appears
undisputed that she had a pending Chapter 13 bankruptcy petition at the time she
filed this action but that petition was dismissed in 2015, well before the trial in this
case.
O’Connell states he preserved this jurisdictional allegation multiple
times. But he cites only to one occurrence before trial, his motion for proof of
ownership. However, that motion makes no mention whatsoever of bankruptcy or
any lack of court jurisdiction.5
Were this a nonjurisdictional issue, that would foreclose further
review. But precedent holds that “since subject matter jurisdiction concerns the
very nature and origins of a court’s power to do anything at all[,] it cannot be born
of waiver, consent or estoppel[,] and may be raised at any time.” Hisle v.
Lexington-Fayette Urban County Government, 258 S.W.3d 422, 430-31 (Ky. App.
2008) (internal quotation marks and citations omitted). That rule is proper because
5
In a later section of his brief, Patrick J. O’Connell mentions his December 2015 motion to
return to status quo. That motion argues that Bianco’s then-pending bankruptcy petition
triggered the automatic stay, and “actions taken by the parties, or this court, since the automatic
stay came into effect are voidable.” R. at 320. However, it appears that Bianco’s bankruptcy
petition was soon thereafter dismissed so the trial court deemed moot O’Connell’s motion to
return to status quo. Under the facts of this case, since he did not raise the pending bankruptcy
proceedings until they had nearly ended, O’Connell failed to afford the circuit court adequate
time to address the automatic stay issue.
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“a judgment entered by a court without subject matter jurisdiction is void.” Id. at
430.
However, we construe O’Connell’s brief to actually raise an argument
that the trial court lacked particular case jurisdiction. As we have explained:
Subject matter jurisdiction concerns the very nature of
the court’s creation under constitutional provisions.
Particular case jurisdiction is a subset of subject matter
jurisdiction in that a court that lacks subject-matter
jurisdiction over an action will also always lack
particular-case jurisdiction, [but] a court can have proper
subject-matter jurisdiction over an action, but nonetheless
lack particular case jurisdiction[.]
Id. at 429 (internal quotation marks and citations omitted). In other words,
“‘subject matter’ does not mean ‘this case,’ but ‘this kind of case.’” Gordon v.
NKC Hosps., Inc., 887 S.W.2d 360, 362 (Ky. 1994) (citing Duncan v. O’Nan, 451
S.W.2d 626 (Ky. 1970)).
The Shelby Circuit Court is a trial court of general jurisdiction
possessing the authority to resolve the claims at issue (this kind of case). See
Hisle, 258 S.W.3d at 432 (explaining the wide jurisdiction of Kentucky circuit
courts). Thus, the trial court had subject matter jurisdiction over the claims here.
The gist of O’Connell’s argument is really that the trial court did not
have the ability to decide this particular case because all legal proceedings
involving Bianco should have been automatically stayed during the pendency of
her bankruptcy petition. But, unlike subject matter jurisdiction, particular case
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jurisdiction is waived if not timely asserted. See Goodlett v. Brittain, 544 S.W.3d
656, 660 (Ky. App. 2018). A party waits too long by not raising particular case
jurisdiction arguments. T.C. v. M.E., 603 S.W.3d 663, 682 (Ky. App. 2020)
(“Particular case jurisdiction can be waived by a party who fails to object early
enough in the proceedings.”). Consequently, O’Connell waited too long to assert
his particular case jurisdiction argument(s). The issue was waived.
O’Connell Failed to Timely and Adequately
Preserve His Statute of Frauds Argument
O’Connell argues at length that the parties’ oral contract violates the
statute of frauds. He cites three times where he preserved the argument, but none
of the three suffices. First, he claims the issue was preserved when his wife (who
originally was named as a defendant) filed a motion to be dismissed. It is unclear
how a motion made by O’Connell’s wife alone preserves the issue for O’Connell
but, regardless, the motion to dismiss contains no reference to the statute of frauds.
Second, O’Connell states the issue was preserved by “oral arguments
at Motion Hour on February 22, 2018[.]” Appellant’s Brief at 8. But O’Connell
fails to cite to where, specifically, the statute of frauds was discussed at that
hearing. It is not this Court’s job to review an entire hearing of indeterminate
length to see if an issue was raised. It was O’Connell’s duty to provide a pinpoint
citation to exactly where he raised the statute of frauds argument. Nonetheless, our
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review of the hearing record reflects that the issue was not raised before the trial
court at this hearing.6
Finally, O’Connell argues the matter was preserved by his “Judicial
Notice of Adjudicated Facts.” Appellant’s Brief at 8. That document is null as it
was filed well after the trial and does not fall within the narrow range of cognizable
post-trial motions.
Moreover, CR 8.03 lists the statute of frauds as an affirmative defense
which must be specifically pled. O’Connell did not raise the statute of frauds in
his answer, so he waived it – even if he belatedly tried to raise it later. See
Bowling v. Kentucky Dep’t of Corr., 301 S.W.3d 478, 485 (Ky. 2009) (“failure to
assert timely an affirmative defense waives that defense and precludes its
consideration by the trial court and this Court.”); Rose v. Ackerson, 374 S.W.3d
339, 345 (Ky. App. 2012) (holding that raising an affirmative defense via a “post-
trial submission is both untimely and inadequate” to preserve it).
6
We note that O’Connell’s reply brief does not dispute Bianco’s assertion in her brief that the
statute of frauds was not addressed at the February 22, 2018, hearing. Like the trial court, we
must question O’Connell’s credibility when this type of misrepresentation is made to this Court.
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O’Connell Has Not Shown Where He Adequately Preserved
His Arguments Regarding the Trial Court’s Findings of Fact
O’Connell argues the trial court’s findings of fact are not supported by
the evidence. That section of his brief contains multiple sub-arguments but he has
not shown where he adequately preserved any of them.
He first asserts he preserved the arguments in his CR 59.05 motion
but, as previously discussed, that motion was an untimely nullity. Second, he
asserts he preserved it in his response to Bianco’s timely CR 59.05 motion, which
was narrowly focused on her alleged entitlement to additional damages for calves.
O’Connell’s overly broad response could properly have addressed only the merits
of the discrete issues raised in Bianco’s CR 59.05 motion; it was not a fresh
opportunity to raise new issues (especially since it was filed after expiration of the
ten-day period for seeking CR 59.05 relief and after O’Connell had already filed
his notice of appeal). More importantly, O’Connell has not cited this Court to any
errors made by the trial court during the two-day bench trial, and how they were
preserved. In sum, O’Connell has not shown that he preserved the many issues
contained in this section of his brief.
As noted, this is an appeal from a bench trial. Accordingly, our
standard of review is governed by CR 52.01. Under CR 52.01, the trial court is
required to make specific findings of fact and state separately its conclusions of
law relied upon to render the court’s judgment. Further, those “[f]indings of fact,
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shall not be set aside unless clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge the credibility of the witnesses.” CR 52.01.
A trial court’s decision is not clearly erroneous if it is supported by substantial
evidence. Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky.
1998). “Substantial evidence” is “evidence of substance and relevant consequence
having the fitness to induce conviction in the minds of reasonable [people].” Id.Furthermore, parties have a right to have matters before trial courts “adjudicated
from the evidence of record[.]” Skinner v. Skinner, 249 S.W.3d 196, 201 (Ky.
App. 2008). While deferential to the lower court’s factual findings, appellate
review of legal determinations and conclusions of law from a bench trial is de
novo. Sawyers v. Beller, 384 S.W.3d 107, 110 (Ky. 2012).
The court conducted a two-day trial and considered considerable
evidence. Ultimately, the court had to weigh the credibility of the testimony of
O’Connell versus that of Bianco. The trial court found Bianco to be more
believable. As the finder of fact, the trial court had extremely broad discretion to
determine witness credibility:
Regardless of conflicting evidence, the weight of the
evidence, or the fact that the reviewing court would have
reached a contrary finding, due regard shall be given to
the opportunity of the trial court to judge the credibility
of the witnesses because judging the credibility of
witnesses and weighing evidence are tasks within the
exclusive province of the trial court.
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Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (internal quotation marks,
footnotes, and citations omitted) (emphasis added).
Without getting into the minutiae of O’Connell’s argument, the trial
court had the discretion to give more credence to evidence favoring Bianco than
evidence favoring O’Connell. Indeed, the trial court explicitly noted that its
decision hinged on its credibility determinations. Based on the evidence, the trial
court made extensive findings of fact. We conclude that the trial court’s findings
are supported by substantial evidence and not clearly erroneous. Those findings
will not be disturbed on appeal. See Wells v. Wells, 412 S.W.2d 568, 571 (Ky.
1967) (“The trial court heard the evidence and saw the witnesses. It is in a better
position than the appellate court to evaluate the situation. . . . When the evidence
is conflicting, as here, we cannot and will not substitute our decision for the
judgment of the chancellor.”).
O’Connell also argues on appeal that the trial court erred by awarding
Bianco damages for conversion, alleging her complaint did not raise such a claim.
He similarly argues the award of punitive damages was improper. Again, in
addition to his failure to show where either issue was properly preserved, he has
not shown an entitlement to relief. Generally, “a judgment should grant whatever
relief a party may be entitled to, provided, however, that it must have at least some
discernible relationship to the controversies in issue or be consonant with what is
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specifically pleaded and proved.” Nagle v. Wakefield’s Adm’r, 263 S.W.2d 127,
130 (Ky. 1953).
Bianco’s pro se complaint was not artfully drafted. However, the
complaint does set forth Bianco’s understanding of the parties’ agreement, the
delivery of the cattle to O’Connell, O’Connell’s alleged failure to respond to
Bianco’s requests for information and the general deterioration of the parties’
relationship such that Bianco believed it was “clearly the intent of Defendant
[O’Connell] to steal all of the cattle belonging to Plaintiff [Bianco][.]” R. at p. 6, ⁋
30 of Complaint. CR 8.01(1) only requires “a short and plain statement of the
claim showing that the pleader is entitled to relief” and CR 8.06 provides that “[a]ll
pleadings shall be so construed as to do substantial justice.” So, even a complaint
“couched in general and conclusory terms” may be sufficient. KentuckyOne
Health, Inc. v. Reid, 522 S.W.3d 193, 197 (Ky. 2017). Also, CR 8.06’s ‘“liberal
construction’ rule,” means a pleading will be “judged according to its substance
rather than its label or form.” McCollum v. Garrett, 880 S.W.2d 530, 533 (Ky.
1994).
Thus, we agree with Bianco that her complaint at least minimally
alleges the elements of conversion.7 Similarly, the complaint contains allegations
7
As we have noted:
In Kentucky, a claim of conversion consists of the following elements:
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of malice sufficient to support an award of punitive damages, given its assertions
that O’Connell intentionally and maliciously deprived Bianco of her cattle and the
proceeds from the sale thereof. The judgment thus has “at least some discernible
relationship to the controversies in issue[.]” See Nagle, 263 S.W.2d at 130.
Moreover, O’Connell did not file a motion for a more definite
statement under CR 12.05, nor has he shown where he objected at trial to
presentation of evidence on any issues not encompassed by the complaint. That
lack of objection is crucial because CR 15.02 provides that “[w]hen issues not
raised by the pleadings are tried by express or implied consent of the parties, they
shall be treated in all respects as if they had been raised in the pleadings.” And
(1) the plaintiff had legal title to the converted property;
(2) the plaintiff had possession of the property or the right to possess it at the time
of the conversion;
(3) the defendant exercised dominion over the property in a manner which denied
the plaintiff’s rights to use and enjoy the property and which was to the
defendant’s own use and beneficial enjoyment;
(4) the defendant intended to interfere with the plaintiff’s possession;
(5) the plaintiff made some demand for the property’s return which the defendant
refused;
(6) the defendant’s act was the legal cause of the plaintiff’s loss of the property;
and
(7) the plaintiff suffered damage by the loss of the property.
Jones v. Marquis Terminal, Inc., 454 S.W.3d 849, 853 (Ky. App. 2014).
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O’Connell should have known before trial that Bianco was asserting a claim for
conversion and was seeking punitive damages as she explicitly said so in her
pretrial memorandum (R. at 674, 676) and itemization of damages (R. at 660-61).
We thus find no error in the trial court’s award of damages.
O’Connell Has Not Shown A Due Process Violation
Finally, O’Connell argues the trial court violated his right to due
process when the court issued an ex parte order in July 2015 which permitted the
authorities in Jefferson County to transfer cattle from O’Connell’s custody to
Bianco’s. However, while there may have been some testimony at trial about these
cattle, the due process issue was not otherwise raised at trial and thus has not been
properly preserved for consideration in this appeal. And, the trial court noted that
neither party referred to these cattle in their proposed findings tendered to the court
after the trial. At the hearing on Bianco’s motion to alter, amend or vacate,
O’Connell raised the issue, but the court declined to extend any relief in its order
entered February 12, 2020.8
Kentucky appellate courts “have long endorsed a rule that specific
grounds not raised before the trial court, but raised for the first time on appeal will
not support a favorable ruling on appeal” because “[w]hen a trial court never has
8
As previously noted, O’Connell untimely served a motion to alter, amend or vacate pursuant to
CR 59.05, which was not considered by the trial court. The due process issue was raised in this
motion, but was not considered by the court due to its untimeliness.
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the opportunity to rule on a legal question presented to an appellate court, an
appellant presents a different case to the appellate court than the one decided by
the trial court.” Norton Healthcare, Inc. v. Deng, 487 S.W.3d 846, 852 (Ky. 2016)
(internal quotation marks, citations, and footnotes omitted). Again, the scope of
our review “is limited to the theory or theories upon which the case was tried[,]”
Florman, 207 S.W.3d at 607 (internal quotation marks and citation omitted), even
for constitutional arguments. See Sneed v. University of Louisville Hospital, 600
S.W.3d 221, 228 (Ky. 2020) (declining to review an equal protection argument
which was not preserved for appellate review). Because O’Connell has not shown
where he preserved his due process argument, we decline to address it on the
merits, nor is it a basis for reversal. Jones v. Livesay, 551 S.W.3d 47, 52-53 (Ky.
App. 2018).
For the foregoing reasons, the Shelby Circuit Court’s Findings of
Fact, Conclusions of Law and Judgment entered March 22, 2019, is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Patrick J. O’Connell, Pro Se Preston Scott Cecil
Louisville, Kentucky Natalie Lile
Frankfort, Kentucky
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