Daniel P. Fennerty v. Teresa L. Moore ( 2022 )

RENDERED: DECEMBER 2, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0107-MR
DANIEL P. FENNERTY APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
v. HONORABLE KEN M. HOWARD, JUDGE
ACTION NO. 16-CI-00600
TERESA L. MOORE APPELLEE
OPINION
AFFIRMING
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BEFORE: DIXON, GOODWINE, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Daniel P. Fennerty (“Appellant”) appeals from an
order of the Hardin Circuit Court granting summary judgment in favor of Teresa L.
Moore (“Appellee”) on her counterclaim for damages resulting from the sale of a
parcel of residential real property. Appellant argues that the circuit court erred in
awarding damages without conducting an evidentiary hearing. We find no error
and affirm the order on appeal.
FACTS AND PROCEDURAL HISTORY
On April 8, 2016, Appellant filed a complaint in Hardin Circuit Court
seeking a declaration that he was the sole owner of a parcel of residential real
property located at 521 Sierra Drive, Rineyville, Kentucky. Appellant asserted that
though the parcel was titled in both his and Appellee’s names, the parties were not
married, she had no pecuniary interest in the parcel, and her name was only
gratuitously added as grantee on the deed when the parties took title to the parcel.
He sought an order declaring him to be the sole owner of the parcel, and directing
Appellee to convey her interest in the parcel to Appellant by quitclaim deed.
According to an affidavit filed by Appellee, Appellant’s counsel, Hon.
G. William Bailey, Jr., contacted her after the filing of Appellant’s complaint and
asked her if she were willing to voluntarily convey to Appellant her one-half
interest in the parcel. She told him that she had to have surgery and had medical
expenses resulting from injuries received from Appellant assaulting her, giving rise
to damages in the amount of $150,000.00. She said she would “let bygones be
bygones,” however, if he would drop the suit and walk away from the matter. She
stated that she assumed there was nothing further to be done by her until she heard
back from Mr. Bailey.
While waiting for Mr. Bailey’s response, Appellee was served with
notice that a default judgment had been entered against her on May 16, 2016,
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based on her failure to file a timely answer. Appellee, through counsel, then
moved to set aside the judgment. In support of the motion, Appellee stated that she
believed Appellant’s action was stayed based on her communication with Mr.
Bailey. The motion was granted by way of an order entered on June 16, 2016.
After the default judgment was entered, and prior to the judgment
being set aside, Appellant sold the parcel for $252,000. Appellant received cash
from the transaction in the amount of $47,284.67.
On June 23, 2016, Appellee moved for leave to file a late answer to
the complaint, and for an order compelling Appellant to place into an escrow
account the net proceeds from the sale of the parcel. The motion was sustained on
July 11, 2016. At the same time, Appellee filed an answer and counterclaim. The
counterclaim asserted Appellee’s right to one-half of the sale proceeds based on
her status of grantee on the deed.
On August 17, 2016, Appellee moved to hold Appellant in contempt
based on his failure to place the net proceeds in escrow as ordered by the court. In
support of the motion, Appellee’s counsel, Hon. Jerry M. Coleman, filed an
affidavit alleging that Appellant executed a check to a third party in the amount of
$40,000.00 using the proceeds from the sale of the parcel, which was not posted
until 14 days after the court’s order directing the net proceeds to be placed in
escrow.
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The circuit court entered an order on August 24, 2016, directing
Appellant to show cause as to why he should not be held in contempt for failing to
abide by the court’s order directing him to deposit the net proceeds into an escrow
account. Appellant did not appear at the August 26, 2016 show cause hearing.1
Appellant then filed a motion for writ of prohibition with this Court
on or about August 31, 2016. Specifically, Appellant sought a writ preventing the
Hardin Circuit Court from enforcing the order requiring Appellant to place the net
proceeds in escrow. The motion was denied by way of an order of this Court
entered on December 20, 2017.
On January 3, 2018, Appellee filed a motion in Hardin Circuit Court
requesting an order dismissing Appellant’s action. Appellee argued that Appellant
remained in contempt of the circuit court’s order directing him to place the net sale
proceeds in escrow. She also reminded the court that Appellant also ignored the
court’s August 24, 2016 order directing him to appear at the show cause hearing.
The court entered an order dismissing Appellant’s action on May 14, 2018.2
1
On the day of the hearing, Appellant, through counsel, claimed that he did not receive notice of
the hearing. The circuit court entered an order on August 26, 2016, remanding the hearing.
2
The May 14, 2018 order also dismissed Appellant’s action in 16-CI-00628, which was
consolidated with the instant action (16-CI-00600). The 16-CI-00628 proceeding, which is not
before us, addressed Appellant’s claim for damages arising from the disposition of personal
property.
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Appellant prosecuted an appeal of the May 14, 2018 order to a panel
of this Court. He voluntarily dismissed the appeal in April 2020.
Though her pleading is not contained in the appellate record, it
appears that Appellee filed a motion in late October 2020, seeking summary
judgment on her counterclaim. Appellant argued that Appellee’s motion was an
impermissible attempt to reopen the action which had been dismissed some 2 ½
years earlier. Appellee responded that the May 14, 2018 order dismissing the
consolidated actions dismissed only Appellant’s claims and not Appellee’s
counterclaim. She argued that by virtue of Appellant’s then-pending appeal in this
Court, she was unable to proceed on her counterclaim until Appellant’s voluntary
dismissal of that appeal in April 2020.
Finally, on December 8, 2020, the Hardin Circuit Court entered an
order granting summary judgment in favor of Appellee on her counterclaim in the
amount of $23,500.00. The judgment was based on Appellant’s willful
noncompliance with the circuit court’s order to place the net proceeds in escrow,
and noncompliance with the order to show cause why he should not be held in
contempt. The court also found that Appellant’s noncompliance, coupled with his
voluntary dismissal of his appeal, constituted a forfeiture of his right to present
claims and defenses related to Appellee’s counterclaim. This appeal followed.
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ARGUMENTS AND ANALYSIS
Appellant argues that the Hardin Circuit Court erred when it entered a
judgment in favor of Appellee on her counterclaim without conducting an
evidentiary hearing. Though he does not dispute the circuit court’s authority to
dismiss his claims based on his failure to comply with the court’s orders to deposit
the net proceeds into escrow, he asserts that he was entitled to a hearing to
determine the amount of damages, if any, payable to Appellee. Appellant directs
our attention to Tally v Paisley, 525 S.W.3d 523 (Ky. 2017), for the proposition
that a hearing is required when one cotenant has contributed more than the other
cotenant to the discharge of encumbrance, liens, or taxes. Appellant also points to
Howard v. Fountain, 749 S.W.2d 690 (Ky. App. 1988), which he argues
interpreted Kentucky Rules of Civil Procedure (“CR”) 8.04(c) to hold that a
defaulting party admits liability, but not the amount of unliquidated damages. In
sum, Appellant seeks an opinion reversing the summary judgment on appeal and
remanding the matter for an evidentiary hearing.
We first note that Appellee’s counterclaim survived the dismissal of
Appellant’s underlying claims. “[J]udgment on a counterclaim . . . may be
rendered in accordance with the terms of Rule 54.02 even if the claims of the
opposing party have been dismissed or otherwise disposed of.” CR 13.09. “A
counterclaim is a separate claim, independent of a plaintiff’s underlying claim.”
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Kurt A. Phillips, 6 Ky. Prac. R. Civ. Proc. Ann. Rule CR 13.01, p. 255. See also
CR 54.02(1), which states:
When more than one claim for relief is presented in an
action, whether as a claim, counterclaim, cross-claim, or
third-party claim, or when multiple parties are involved,
the court may grant a final judgment upon one or more
but less than all of the claims or parties only upon a
determination that there is no just reason for delay. The
judgment shall recite such determination and shall recite
that the judgment is final. In the absence of such recital,
any order or other form of decision, however designated,
which adjudicates less than all the claims or the rights
and liabilities of less than all the parties shall not
terminate the action as to any of the claims or parties, and
the order or other form of decision is interlocutory and
subject to revision at any time before the entry of
judgment adjudicating all the claims and the rights and
liabilities of all the parties.
In disposing of Appellee’s counterclaim via summary judgment, the
Hardin Circuit Court stated,
This Court ordered that all of Fennerty’s claims in
these consolidated cases were to be dismissed as the
result of his willful noncompliance with the Court’s
orders. Fennerty appealed the order but voluntarily
dismissed his appeal. Because Fennerty forfeited his
right to present claims or defenses, Teresa Moore is
entitled to summary judgment in both consolidated cases
as previously specified in this order, and all of Fennerty’s
claims in both cases are dismissed with prejudice.
Thus, the circuit court’s decision was grounded on its finding that Appellant’s
noncompliance with the court’s orders and voluntary dismissal of his appeal
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constituted a forfeiture of his right to present defenses as to Appellee’s
counterclaim.
Appellant asserts that he was entitled to a hearing on damages prior to
the entry of summary judgment. Summary judgment “shall be rendered forthwith
if the pleadings, depositions, answers to interrogatories, stipulations, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” CR 56.03. “The record must be viewed in a light
most favorable to the party opposing the motion for summary judgment and all
doubts are to be resolved in his favor.” Steelvest, Inc. v. Scansteel Service Center,
Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary judgment should be granted only
if it appears impossible that the nonmoving party will be able to produce evidence
at trial warranting a judgment in his favor. Id. “Even though a trial court may
believe the party opposing the motion may not succeed at trial, it should not render
a summary judgment if there is any issue of material fact.” Id. Finally, “[t]he
standard of review on appeal of a summary judgment is whether the trial court
correctly found that there were no genuine issues as to any material fact and that
the moving party was entitled to judgment as a matter of law.” Scifres v. Kraft,
916 S.W.2d 779, 781 (Ky. App. 1996).
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The questions for our consideration, then, are 1) whether the Hardin
Circuit Court correctly found that there were no genuine issues as to any material
fact, and that Appellee was entitled to a judgment as a matter of law, and 2)
whether the circuit court properly determined the amount of damages without a
hearing. After careful review, we must answer these questions in the affirmative.
It is uncontroverted that Appellee was co-grantee of the parcel, which Appellant
sold after the default judgment was entered and before the judgment was set aside.
It is also uncontested that the sale produced cash proceeds of $47,284.67. The
circuit court found that Appellant “absconded” with these funds by refusing to
place them in escrow as ordered by the court, and failing to show cause why he
should not be held in contempt. Tally and Howard, supra, are factually
distinguishable from the matter before us, and CR 8.04(c) does not apply herein as
the damages are a sum certain. As such, no hearing on the motion was required.
CONCLUSION
Even when viewing the record in a light most favorable to Appellant
and resolving all doubts in his favor, we conclude that summary judgment was
properly entered in favor of Appellee. No hearing was required on the issue of
damages, as the amount of damages was a sum certain ascertainable from the
record. For these reasons, we affirm the Hardin Circuit Court’s order granting
summary judgment.
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ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
G. William Bailey, Jr. Ryan F. Quick
Elizabethtown, Kentucky Elizabethtown, Kentucky
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