Opinion
NO. 2014-CA-000701-MR
06-15-2018
EVAN BLAKENY AND LUCINDA CHRISTIAN APPELLANTS v. CITIZENS COMMERCE NATIONAL BANK APPELLEE
BRIEF FOR APPELLANTS: Lucinda Christian, pro se Lexington, Kentucky Evan Blakeny, pro se Louisville, Kentucky BRIEF FOR APPELLEE: Jonathan L. Gay Stephen Barnes Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM SCOTT CIRCUIT COURT
HONORABLE PAUL F. ISAACS, JUDGE
ACTION NO. 12-CI-00379 OPINION
AFFIRMING
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BEFORE: J. LAMBERT, NICKELL, TAYLOR, JUDGES. NICKELL, JUDGE: This is a foreclosure action wherein the Scott Circuit Court entered a summary judgment and order of sale after Citizens Commerce National Bank ("CCNB") foreclosed on the mortgage of Evan Blakeny and Lucinda Christian. Blakeny and Christian, pro se, appealed from the March 17, 2014, Summary Judgment Order and Order of Sale. At issue is the trial court's earlier denial of Blakeny and Christian's motion to amend their counterclaim and the dismissal of all claims they raised against CCNB. Following a careful review, we affirm.
The historical facts underlying this matter are relatively straightforward and undisputed. However, because the facts are not essential or pertinent to resolution of the issues raised on appeal, only a truncated version is warranted for context. Blakeny and Christian obtained two loans from CCNB in 2009 to finance the purchase of a parcel of real estate in Scott County, Kentucky. The loans were evidenced by promissory notes and secured by mortgages on the subject property. By 2012, the loans were in default, leading CCNB to institute the instant foreclosure action on May 16, 2012. Blakeny and Christian answered the complaint and filed a counterclaim raising three claims of violations of the Federal Fair Credit Reporting Act ("FCRA") and four Kentucky common law claims.
These claims were based on alleged violations of 15 U.S.C. §1681s-2(a)(2)(B) and 15 U.S.C. §1681s-2(a)(7)(A)(i) ("FCRA Section 2(a) claims").
These claims were also founded on alleged FCRA Section 2(a) claims.
Following a substantial period of discovery, CCNB moved for summary judgment on the mortgage indebtedness claims and sought dismissal of the common law claims brought against it. Days before the motion for summary judgment was to come on for a hearing, Blakeny and Christian moved to file an amended counterclaim. The proffered amendment attempted to assert a new cause of action against CCNB for violations of a different section of the FCRA, 15 U.S.C. §1681s-2(b) ("FCRA Section 2(b) claims").
CCNB challenged the amendment and moved to dismiss the FCRA Section 2(a) claims, asserting no private right of action for those claims exists. On May 2, 2013, the trial court granted the motion. No appeal was taken from the dismissal of these claims.
On December 13, 2013, the trial court denied Blakeny and Christian's motion to amend upon concluding amendment would be futile and the appropriate statute of limitations on the FCRA Section 2(b) claims had expired. By final order entered on March 17, 2014, the trial court granted summary judgment in favor of CCNB, ordered the subject property to be sold by the Master Commissioner, and dismissed all of Blakeny and Christian's remaining counterclaims. This appeal followed.
The appeal was abated for nearly three years while multiple petitions in bankruptcy for both Blakeny and Christian worked their way through the federal courts. After the petitions were all finally dismissed, the matter was returned to this Court's active docket for disposition.
The sole issue presented for review is the propriety of the trial court's denial of Blakeny and Christian's motion to amend their counterclaim. They claim the trial court erred because leave to amend should be freely granted pursuant to CR 15.01, allowing amendment would not be futile nor result in prejudice to CCNB, and the new claims would not be time-barred. We disagree.
Kentucky Rules of Civil Procedure. --------
In contravention of CR 76.12(4)(c)(v), Blakeny and Christian do not state how they preserved any of their arguments in the trial court.
CR 76.12(4)(c)[(v)] in providing that an appellate brief's contents must contain at the beginning of each argument a reference to the record showing whether the issue was preserved for review and in what manner emphasizes the importance of the firmly established rule that the trial court should first be given the opportunity to rule on questions before they are available for appellate review. It is only to avert a manifest injustice that this court will entertain an argument not presented to the trial court. (citations omitted).Elwell v. Stone, 799 S.W.2d 46, 48 (Ky. App. 1990) (quoting Massie v. Persson, 729 S.W.2d 448, 452 (Ky. App. 1987)). Also in contravention of the requirements of CR 76.12, Blakeny and Christian's brief does not include a single citation to the record. Failing to comply with the civil rules is an unnecessary risk appellants should not chance. Compliance with CR 76.12 is mandatory. See Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010). We require a statement of preservation:
so that we, the reviewing Court, can be confident the issue was properly presented to the trial court and therefore, is appropriate for our consideration. It also has a bearing on whether we employ the recognized standard of review, or in the case of an unpreserved error, whether palpable error review is being requested and may be granted.Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012). Palpable error review has not been requested.
In spite of the deficiencies noted above, because of the leniency afforded pro se litigants and because the record on appeal is not large, we have reviewed the applicable portions of the record. However, we find no mention by Blakeny and Christian of many of the grounds presented to us. This failure is fatal to most of their arguments on appeal.
It has long been this Court's view 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. Most simply put, "[a] new theory of error cannot be raised for the first time on appeal." Springer v. Commonwealth, 998 S.W.2d 439, 446 (Ky. 1999) (discussing specifically a directed verdict issue); see, e.g., Harrison v. Leach, 323 S.W.3d 702, 708-09 (Ky. 2010); Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 734 (Ky. 2009) ("More importantly, this precise argument was never made in the trial court. An appellate court 'is without authority to review issues not raised in or decided by the trial court.'") (quoting Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989)); Combs v. Knott County Fiscal Court, 283 Ky. 456, 141 S.W.2d 859, 860 (1940) ("[A]ppellant is precluded from raising that question on appeal because it was not raised or relied upon in the court below. It is an unvarying rule that a question not raised or adjudicated in the court below cannot be considered when raised for the first time in this court.").Fischer v. Fischer, 348 S.W.3d 582, 588 (Ky. 2011). "The appellate court reviews for errors, and a nonruling is not reviewable when the issue has not been presented to the trial court for decision." Turner v. Commonwealth, 460 S.W.2d 345, 346 (Ky. 1970); see also Hatton v. Commonwealth, 409 S.W.2d 818, 819-20 (Ky. 1966). "[I]t is the accepted rule that a question of law which is not presented to or passed upon by the trial court cannot be raised here for the first time." Hutchings v. Louisville Trust Co., 276 S.W.2d 461, 466 (Ky. 1954); Benefit Ass'n of Ry. Employees v. Secrest, 239 Ky. 400, 39 S.W.2d 682, 687 (1931). "The underlying principle of the rule is to afford an opportunity to the trial court, before or during the trial or hearing, to rule upon the question raised." Hartsock v. Commonwealth, 382 S.W.2d 861, 864 (Ky. 1964).
The majority of the arguments presented on appeal were neither reviewed nor ruled upon by the trial court. It is axiomatic that a trial court must be given a chance to deliberate and decide upon an issue before it is ripe for appellate review. Florman v. MEBCO Ltd. Partnership, 207 S.W.3d 593, 607 (Ky. App. 2006). To the extent Blakeny and Christian have failed to preserve their claims of error in the trial court, they cannot now be heard to complain for the first time in this appeal. See Lawrence v. Risen, 598 S.W.2d 474, 476 (Ky. App. 1980).
Turning to the sole issue we perceive to be properly before us, when a trial court denies a motion to amend under CR 15.01, appellate courts review that decision for an abuse of discretion. Graves v. Winer, 351 S.W.2d 193, 197 (Ky. 1961). Abuse of discretion occurs when the trial court's ruling is arbitrary, unreasonable, unfair or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Mere doubt as to the correctness of a trial court's finding is insufficient to justify reversal. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003).
We discern no abuse of discretion in the trial court's denial of the motion to amend. As the trial court correctly concluded, by Blakeny's own admission, the new claims were time-barred. Amendment would therefore have been futile. In addition, the claims raised in the amended counterclaim were entirely different from those raised initially and permitting them to proceed—assuming they were not untimely raised—would have resulted in undue prejudice to CCNB under the circumstances considering the procedural posture of the case. CR 15.01 requires leave to amend be freely granted "when justice so requires." That simply was not the case in this action. We conclude the trial court acted within its broad discretion in denying leave to file the amended counterclaim.
For the foregoing reasons, the judgment of the Scott Circuit Court is AFFIRMED.
ALL CONCUR. BRIEF FOR APPELLANTS: Lucinda Christian, pro se
Lexington, Kentucky Evan Blakeny, pro se
Louisville, Kentucky BRIEF FOR APPELLEE: Jonathan L. Gay
Stephen Barnes
Lexington, Kentucky