LUKE KEITH, JR. v. DEPOSIT BANK AND TRUST COMPANY, INC., F/K/A GREENSBURG DEPOSIT BANK AND TRUST COMPANY
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RENDERED: NOVEMBER 21, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-000908-MR
LUKE KEITH, JR.
v.
APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE GREGORY A. LAY, JUDGE
ACTION NO. 05-CI-00168
DEPOSIT BANK AND TRUST COMPANY, INC., F/K/A
GREENSBURG DEPOSIT BANK AND TRUST COMPANY
APPELLEE
OPINION
AFFIMING
** ** ** ** **
BEFORE: DIXON, VANMETER AND WINE, JUDGES.
DIXON, JUDGE: Luke Keith appeals from a judgment against him in the Laurel Circuit
Court claiming he was entitled to a jury trial and change of venue in this collection
action. Finding no error, we affirm.
On February 4, 2005, Deposit Bank and Trust Company, Inc. (Deposit)
filed suit against Keith and his wife in Laurel Circuit Court seeking to collect on a
promissory note they executed with Deposit on August 17, 1996. Keith failed to make
timely payments on the note ultimately resulting in the underlying action. The Keith's
chose to represent themselves. On November 2, 2005, the Court entered an Order of
Partial Summary Judgment against the Keith's adjudging them in default under the terms
of their note with Deposit. However, the Court ruled that a trial was necessary to
determine the appropriate amount owed to Deposit and a bench trial was scheduled for
March 21, 2006.
On February 28, 2006, Keith filed a “MOTION FOR TRIAL BY JURY AS
WELL AS THE TRIAL TO BE REMOVED TO GREEN COUNTY CIRCUIT
COURT.” This motion was not verified as required by KRS1 452.030. The Court denied
this motion without hearing, and at the conclusion of the bench trial on damages, ordered
the Keith's to pay $7,514.84 as of March 1, 2005, plus interest, court costs and attorney's
fees. Luke Keith now appeals claiming he was entitled to a jury trial and a change of
venue. Keith's wife has not appealed the judgment against her.
Keith first claims he was entitled to a trial by jury. The facts clearly reflect
however, that pursuant to CR2 38.02 the time had long since passed when Keith was
entitled to a jury trial. CR 38.02 states in part,
“Any party may demand a trial by jury of any issue triable of
right by a jury by serving upon the other parties a demand
therefor in writing at any time after the commencement of the
action and not later that 10 days after the service of the last
pleading directed to such issue.”
1
Kentucky Revised Statutes.
Kentucky Rules of Civil Procedure.
2
-2-
Here, Deposit filed its action against Keith on February 4, 2005. Keith filed his response
on March 15, 2005. Consequently, Keith's jury demand was required to be filed no later
than March 25, 2005. See Empire Metal Corp. v. Wohlwender, 445 S.W.2d 685, 689
(Ky. 1969) and Scudamore v. Horton, 426 S.W.2d 142, 144 (Ky. 1968). Keith did not
file his jury request until February 28, 2006, nearly a year too late. As such, the Circuit
Court correctly denied Keith's motion.
Lastly, Keith contends that he was entitled to a change of venue to Green
County. However, Keith again failed to comply with proper procedure entitling him to
such relief. KRS 452.030 requires any application for change of venue to be made by
verified motion. While Keith signed his motion for change of venue, he did not verify it
as required by statute. A petition for a change of venue which is not verified is fatally
defective. Rand, McNally & Co., v. Turner, 29 Ky. L. Rptr. 696, 94 S.W. 643, 644
(1906). As such, the Court correctly denied Keith's motion for change of venue.
The judgment of the Laurel Circuit Court is hereby affirmed.
WINE, JUDGE, CONCURS.
VANMETER, JUDGE, CONCURS IN RESULT.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Luke Keith, Jr.
London, Kentucky
Jeffery R. Tipton
Corbin, Kentucky
-3-
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