SHTEIWI/DAVID, INC.; KENNETH M. DAVID; and MICHAEL DAVID v. MATTHEW W. HENRY
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RENDERED: August 8, 1997; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 96-CA-1734-MR
SHTEIWI/DAVID, INC.;
KENNETH M. DAVID; and
MICHAEL DAVID
APPELLANTS
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE WILLIAM J. WEHR, JUDGE
ACTION NO. 95-CI-532
v.
MATTHEW W. HENRY
APPELLEE
OPINION
AFFIRMING
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BEFORE:
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KNOPF, MILLER, and SCHRODER, Judges.
MILLER, JUDGE:
Shteiwi/David, Inc., Kenneth M. David, and
Michael David bring this appeal from a May 21, 1996, order of the
Campbell Circuit Court.
We affirm.
This action stems from appellants' attempt to register
an Ohio judgment in the Campbell Circuit Court pursuant to the
Uniform Enforcement of Foreign Judgments Act, codified in this
Commonwealth as Ky. Rev. Stat. (KRS) 426.950-.975.
On May 22,
1995, appellants filed a Form AOC-160, Notice and Affidavit of
Foreign Judgment Registration with the Clerk of the Campbell
Circuit Court.
The matter was assigned to Division I of the
Campbell Circuit Court.
On August 29, 1995, appellee, Matthew W. Henry, filed a
motion for relief from the Ohio judgment pursuant to Ky. R. Civ.
P. (CR) 60.02, for suspension of proceedings, and to strike the
notice for violations of CR 11 and Local Rule 4 as the notice of
registration was not signed by an attorney admitted to practice
in this Commonwealth.
A hearing ensued, and, on November 16,
1995, the circuit court, Division I, granted appellee's motion.
The order specifically stated as follows:
IT IS ORDERED AND ADJUDGED that Defendant's
Motion for Relief from Judgment, for suspension of proceedings, and to squash the subpoena is sustained.
No appeal was taken from this order.
On November 29, 1995, appellants filed a Notice of
Voluntary Dismissal in the circuit court, Division I, pursuant to
CR 41.01(1).
On the same day, appellants filed in the Campbell
Circuit Court a second Form AOC-160 Notice and Affidavit of
Foreign Judgment Registration.
The matter was assigned to
Division II of the Campbell Circuit Court.
On March 13, 1996,
the circuit court, Division II, entered an order, which, in
relevant part, stated as follows:
Two issues are presented to this Court
on Defendant's motion to dismiss: (1) what
is the proper interpretation of Judge Wehr's
Order, and (2) did Plaintiffs have the right
to file a notice of voluntary dismissal pursuant to CR 41.01(1). . . . Judge Wehr's
Order directs Plaintiffs to cease attempting
to collect the Ohio Judgment through proceedings in Kentucky.
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The effect of granting Mr. Henry's motion for relief under CR 60.02 was to vacate
the Ohio Judgment for purposes of its enforcement in Kentucky. Judge Wehr's Order
granted Mr. Henry a suspension of all proceedings to collect that Judgment (emphases
added).
No appeal was taken from the March order.
Instead, on April 16,
1996, appellants filed, in Division I of the Campbell Circuit
Court, a motion for leave to amend the first notice of registration and to withdraw the motion to voluntarily dismiss.
On May
21, 1996, the circuit court, Division I, overruled appellants'
motion to amend.
The court concluded that appellants could
withdraw their notice of voluntary dismissal since "it has no
legal effect without their [the parties] concurrence and the
Court's approval, neither of which was obtained."
This appeal
followed.
Appellants contend that the circuit court committed
reversible error in overruling the motion for leave to file an
amended notice of registration.
Appellants raise three assign-
ments of error:
I.
The trial court failed to apply the
proper standard of review to appellants'
motion for leave to amend[;]
II.
The trial court erroneously relied on
the decision reflected in the November order[; and]
III. The trial court unconstitutionally
denied appellants' right to full faith and
credit.
As to the first assignment of error, we believe it
without merit.
Appellant sought to amend its notice of registra-
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tion pursuant to CR 15.01.
There exists myriad impediments to
utilization of that rule upon the facts of this case.
Suffice it
to say, appellants' motion to amend was filed some five months
after final judgment was rendered in the action.
As such, we
cannot say the circuit court abused its discretion in denying the
motion to amend.
As to the second assignment of error, we believe it
barred by the doctrine of res judicata.
The doctrine of res
judicata provides that a final judgment rendered on the merits by
a court of competent jurisdiction is conclusive as to the rights
of the parties concerning the same points and issues.
In the case sub judice, there is no allegation that the
Campbell Circuit Court lacked jurisdiction over the subject
matter and the parties.
Moreover, it is beyond dispute that the
same parties are involved.
A review of the record reveals that
the specific issues raised in appellants' second assignment of
error were adjudicated by the Campbell Circuit Court, Divisions I
and II, in their respective November 1995 and March 1996 orders.
No appeals were taken from these orders.
Hence, we are of the
opinion that appellate review of appellants' second assignment of
error is precluded by the doctrine of res judicata.
As to appellants' third assignment of error--that the
circuit court denied appellants' constitutional right of full
faith and credit--we likewise view it as being without merit.
The March order, of the Campbell Circuit Court, Division II,
specifically held that the Ohio judgment had been "vacate[d]"
pursuant to CR 60.02.
No appeal was taken therefrom.
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KRS
426.955, by its clear and unambiguous language, subjects foreign
judgments "to the same procedures, defenses and proceedings for
reopening, vacating . . . a judgment of a court of this state
. . . ."
As the Ohio judgment is considered void in this Common-
wealth, there exists no judgment to which full faith and credit
may be extended.
As such, we are of the opinion that appellants
were not denied their constitutional right of full faith and
credit.
For the foregoing reasons, the order of the circuit
court is affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANTS:
BRIEF FOR APPELLEE:
J. Paul Allen
Frost & Jacobs
Cincinnati, OH
William C. Willock, Jr.
Evans, Gathright, Hardy &
Willock
Louisville, KY
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