RENDERED: SEPTEMBER 12, 2014; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2013-CA-000963-DG MARGARET FRAYSUR APPELLANT ON DISCRETIONARY REVIEW FROM MONTGOMERY CIRCUIT COURT v. HONORABLE WILLIAM EVANS LANE, JUDGE ACTION NO. 13-XX-00001 GREG MCALPIN APPELLEE OPINION REVERSING AND REMANDING ** ** ** ** ** BEFORE: LAMBERT, MOORE, AND NICKELL, JUDGES. LAMBERT, JUDGE: This forcible detainer action is before this Court on discretionary review of the order of the Montgomery Circuit Court affirming the decision of the Montgomery District Court to deny the defendant s motion to continue and for a jury trial, grant the plaintiff s motion for summary judgment, enter a forcible detainer, and order the tenant to vacate the property in seven days.
Having carefully reviewed the record and the parties respective arguments, we reverse the circuit court s opinion affirming the district court s judgment. Our review of this case is somewhat hampered by an incomplete record as the circuit court clerk did not certify the record in a previous district court action as requested. However, both parties have included their respective versions of the factual and procedural background in their appellate briefs, which they both state is not supported in the record. We shall rely upon these recitations as we set forth the background of this case. Margaret Fraysur is in her 80s and is the grandmother of Greg McAlpin. In 2004, Fraysur purchased a home at 227 Shelton Way in Mt. Sterling, Kentucky, for $117,000.00, and she obtained a loan to pay for the property. In March 2012, she and McAlpin discussed her estate plans, and Fraysur agreed to transfer the Shelton Way property to him for $80,000. At that time, Fraysur stated that the property had an assessed value of $120,000.00. McAlpin stated that Fraysur signed a gift letter acknowledging that she gave a gift of $55,000.00 to him representing the equity in the property. Fraysur disputes that she did so. McAlpin took over responsibility for the payments remaining on the promissory note. They agreed that Fraysur would have the right to live in the home for the rest of her life, and she was to pay $700.00 to McAlpin in monthly rent to cover the mortgage -2-
payment, taxes, and insurance. 1 Fraysur stated that she faithfully paid him this amount. In early October 2012, McAlpin gave Fraysur thirty days notice to vacate the premises. McAlpin indicated that he had a number of concerns about the home and its residents over the course of the month to month lease. However, he continued to accept her rental payments in October, November, and December 2012. McAlpin filed the first of two forcible detainer actions against Fraysur in Montgomery District Court on December 26, 2012 (civil action 12-C-00694). 2 After initially granting the forcible detainer after a hearing on January 3, 2013, the district court vacated the order on Fraysur s motion on February 7, 2013, after a hearing that day, noting that McAlpin had not amended his original complaint to show a change in circumstances and citing Daily v. Kelly, 200 S.W.2d 114 (Ky. 1946). Referring to the January 3, 2013, proceedings, the court s February 7, 2013, order stated that with respect to notice, that it is clear on the tape that the Plaintiff wrote out a notice and slid it across the bench to counsel for the Defendant who then showed it to her. So the Court believes that Defendant has received the written thirty (30) day notice for any future action. The district court then stated that any filing fee would be waived if McAlpin chose to refile the matter and that if McAlpin brought this complaint back for a hearing and Fraysur had received three days notice, the matter would be set for February 15, 2013, to permit more time to 1 Fraysur contends that their original agreement was that she was to pay McAlpin $650.00 per month, but McAlpin increased the amount shortly after the conveyance. 2 This record is not included in the certified record on appeal. -3-
hear arguments from counsel. Counsel for Fraysur disputes that the February 15, 2013, hearing date was discussed at the February 7, 2013, hearing. As we noted above, the record does not contain any record from the first forcible detainer action. McAlpin filed his second forcible detainer complaint against Fraysur on February 8, 2013 (civil action 13-C-00064). In the complaint, McAlpin stated that he and Fraysur had entered into an oral, month-to-month lease for the subject property on March 28, 2012, that Fraysur had agreed to pay $700.00 per month in rent. He stated that Fraysur had breached the lease by failing to pay rent for the months of January and February 2013. McAlpin stated that the oral lease was terminated on January 3, 2013, and that he gave Fraysur written notice to vacate that day. By order entered the same day, the district court noted its previous order in the first forcible detainer action that it had waived the filing fee for the new case and that Fraysur had received the required thirty days written notice for the filing of the second action. The court set a hearing date of February 15, 2013. Fraysur was served with notice of the eviction hearing on February 11, 2013, by posting it in a conspicuous place on her premises and by regular mail through the U.S. Postal Service. In her answer filed February 14, 2013, Fraysur raised the affirmative defenses of accord and satisfaction, waiver, estoppel, and laches. She also denied that the lease was originally an oral lease and stated that her rent obligation had been satisfied through payments into the Montgomery County District Court -4-
Clerk s office. She also requested a jury trial in the answer. The same day, Fraysur filed a motion for continuance and again requested a jury trial. She stated that her attorney had a jury trial scheduled for the following day and would not be available for the hearing on McAlpin s complaint. Also on February 14, 2013, McAlpin filed a motion for summary judgment, arguing that it was undisputed that he was the owner of the property; that the parties had an oral agreement for a month-to-month lease; that Fraysur failed to pay rent for the month of January; that he tendered a notice of eviction to her on January 3, 2013; and that Fraysur had refused to give him possession of the premises. Based upon these facts, McAlpin argued that no genuine issues of material fact remained for a jury to consider and that he was entitled to summary judgment as a matter of law. McAlpin noticed the motion to be heard on February 21, 2013. The district court proceeded with the hearing on February 15, 2013. 3 After denying Fraysur s motion to continue and set a jury trial, the district court granted McAlpin s motion for summary judgment, entered a forcible detainer, and ordered Fraysur to vacate the premises in seven days. These rulings were set forth in a docket order entered February 15, 2013, in which the court noted that a written order would be entered. On February 20, 2013, the district court entered a judgment for forcible detainer, again noting that a separate, written order would be entered. On March 1, 2013, the district court entered the last order, which provided as follows: 3 Substitute counsel appeared for Fraysur at the hearing. -5-
1. As the Court set this mater [sic] for today s hearing in its previous Order of February 7, 2013, the Defendant s Motion for a Continuance and to set a Jury Trial is DENIED. 2. The Court finds that all parties stipulated that the Plaintiff, Greg McAlpin, is the lawful owner of the property which gives rise to the forcible detainer herein. 3. The Court ruled in its February 7 2013 [sic] Order that the Plaintiff gave a written thirty (30) day notice to Defendant on January 3, 2013, thus satisfying the requirement of notice to vacate the premises. 4. The Plaintiff s Motion for Summary Judgment filed herein is GRANTED. A warrant of possession shall be issued, with the Defendant to have seven (7) days to vacate the premises. However, due to an appeal being filed any warrant of possession shall be held in abeyance. Fraysur timely appealed the district court s rulings to the Montgomery Circuit Court. In her Statement of Appeal, Fraysur argued that the district court erred in failing to grant her motion for a continuance and set the matter for a jury trial pursuant to Kentucky Rules of Civil Procedure (CR) 38.02. She also argued that summary judgment was not appropriate because she had not received ten days notice pursuant to CR 56.03. The motion was served six days before the noticed hearing date of February 21, 2013. Furthermore, the motion was presented in court on February 15, 2013, and she was not provided with an opportunity to respond. Fraysur also argued that she was denied the opportunity to present any evidence and that jurisdiction was inappropriate in the district court because the matter involved an agreement beyond that of mere landlord and tenant. Further filings in -6-
the record establish that Fraysur continued to tender her rental payments into the court each month. In his Counterstatement of Appeal, McAlpin argued that Fraysur s request for a jury trial was not timely made, citing Kentucky Revised Statutes (KRS) 383.210(2), which requires three days notice for execution of a warrant, not ten days as in CR 38.02. He also pointed out that neither Fraysur nor her counsel ever objected to the February 15, 2013, trial date during previous court proceedings, but rather waited until the day before the scheduled hearing date to do so. Regarding the motion for summary judgment, McAlpin stated that the motion was not technically necessary because all parties were on notice that the trial would take place on February 15, 2013, that the district court had knowledge of the case due to the previous action, and that based upon the record and prior sworn statements of the parties it determined that McAlpin was entitled to a forcible detainer and warrant of possession. Regarding jurisdiction, McAlpin stated that the district court has jurisdiction to hear an eviction case, noting that this was a simple forcible detainer matter for which he was entitled to a judgment as the rightful owner. On May 1, 2013, the circuit court entered an order affirming the district court s rulings. The circuit court held as follows: Appellant contends that she was entitled to a Jury Trial and was improperly denied one. The request came one day before the February 15, 2013 hearing and in the context of the history of this case and its predecessor case the Court feels that it was not a timely request and given the stipulation that the Appellee was the rightful owner of the property there was no probative reason for a jury trial -7-
and that as the rightful owner may terminate the lease for any cause even if the payments were all timely. The Court finds no other reasons to disturb the District Court s findings or exercise of discretion as these types of cases are meant to be quick and to the point and summary in nature to begin with. This Court granted Fraysur s motion for discretionary review on November 6, 2013, and this appeal now follows. 4 On appeal, Fraysur continues to argue that she was entitled to a jury trial, that the circuit court erred in ruling that her request was not timely made, that she did not receive the required notice for the summary judgment motion, that the district court did not have jurisdiction to grant the summary judgment, and that McAlpin s acceptance of rental payments after the filing of the second forcible detainer action required dismissal of the action. McAlpin argued that he was entitled to a forcible detainer judgment and that any other issues and matters should be raised in the circuit court action Fraysur filed against him. For purposes of this proceeding, KRS 383.200(3)(a) defines a forcible detainer as [t]he refusal of a tenant to give possession to his landlord after the expiration of his term; or of a tenant at will or by sufferance to give possession to the landlord after the determination of his will[.] It is well settled in this Commonwealth that a forcible detainer action is viable only where the relationship of 4 Fraysur obtained a temporary restraining order from the Montgomery Circuit Court in a separate civil action she filed against McAlpin in March 2013 alleging fraud (action No. 13-CI- 90082), and the restraining order prohibited McAlpin from forcibly removing Fraysur from the premises or from executing upon any writ of possession issued in this matter. The order is to remain in effect until the appeal process is concluded. -8-
the competing parties is that of landlord and tenant. It has been repeatedly decided by this court that to maintain the writ of forcible detainer the relationship of landlord and tenant must exist in some form. Cuyler v. Estis 23 K.L.R. 1063, 64 S.W. 673, 674 (1901). The summary procedure provided for in district court is designed to restore to a landlord premises unlawfully detained by a mere tenant. Hall's Ex'rs v. Robinson, 291 Ky. 631, 165 S.W.2d 163 (1942). Emmons v. Madden, 781 S.W.2d 529, 530 (Ky. App. 1989) (emphasis in original). The first issue we shall consider is whether the district court erred in denying Fraysur s request for a jury trial. While the district court s written orders did not directly address the reason it denied Fraysur s request for a jury trial, 5 the circuit court s order affirming addressed this issue, holding that the request was untimely. Because this represents an issue of law, we shall review the rulings de novo. See Louisville and Jefferson County Metropolitan Sewer Dist. v. Bischoff, 248 S.W.3d 533, 535 (Ky. 2007) ( The issue in this case is one of constitutional and statutory interpretation and application. So it is purely a question of law and subject to de novo review by this Court. ); Bob Hook Chevrolet Isuzu, Inc. v. Commonwealth Transp. Cabinet, 983 S.W.2d 488, 490 (Ky. 1998). The right of trial by jury as declared by the Constitution of Kentucky or as given by a statute of Kentucky shall be preserved to the parties inviolate. CR 38.01. In McHugh v. Knippert, 243 S.W.2d 654, 655 (Ky. 1951), the former Court of Appeals confirmed that forcible detainer actions are triable by a jury: 5 The certified record does not contain any video or audio recordings of the proceedings in this matter for this Court to review, but we note that Fraysur requested such recordings be included in the record. -9-
The appellants argue that the judgment was rendered as if it were a suit in equity to reform the lease; and the court had, in effect, done so. It is submitted that it was error not to have impaneled a jury to try the issue of the right to possession. The first appearance in the record of a claim to a jury trial is found in the motion and grounds for a new trial. The evidence had been heard by the judge alone without objection. The remedy of forcible entry and detainer was evolved from an English criminal proceeding and is not strictly a common law action. It is regarded as a statutory action at law to recover possession of real property and is triable as such by a jury. Sections 456, 465, Civil Code of Practice; Jolly v. Gilbert, 190 Ky. 1, 226 S.W. 354; Sayers & Muir Service Station v. Indian Refining Co., 266 Ky. 779, 100 S.W.2d 687. The failure to request a jury waived the right thereto, Sec. 312, Civil Code of Practice, and was equivalent to agreeing to submit the law and facts to the court. In support of her arguments that she was entitled to a jury trial and that her request was timely made, Fraysur relies upon CR 38.02, which states: 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 than 10 days after the service of the last pleading directed to such issue. Such demand may be indorsed upon a pleading of the party, and if indorsed on the complaint, the filing of the complaint shall constitute service of the demand. She also relies upon KRS 383.210(2), which specifically provides for a trial by jury in forcible detainer actions: In the trial of writs of forcible entry, forcible detainer or forcible entry and detainer, if neither party, in person or by agent or attorney, demand a jury, the trial thereof shall be by the court. No such writ shall hereafter direct the summoning of a jury, and the sheriff or other officer to whose hands such writ may come to do execution thereof -10-
shall not summon a jury in such proceedings, unless he be by either party notified in writing that a jury is demanded. At the calling of the cause for trial either party may demand a jury. McAlpin contends that KRS 383.210(1) requires three days notice, not ten as provided for in CR 38.02. We disagree with McAlpin s reading of KRS 383.210(1). That subsection provides direction for the sheriff who must serve the warrant: Upon complaint by a person aggrieved by a forcible entry or detainer to the District Court of the county in which the land or tenement, or a principal part thereof, lies, a warrant shall issue to the sheriff or any constable, in substance as follows: The Commonwealth of Kentucky to the sheriff (or any constable) of county: Whereas, A B hath made complaint that C D and E F did, on the day of, forcibly enter into (or forcibly detain from the said A B) one (1) house and field on the waters of, in the county aforesaid (or other general description of the lands or tenements), which were in the peaceable possession of A B (or which the said C D and E F, tenants of the said A B, now hold against him): You are, therefore, commanded to summon a good and lawful jury of your county to meet on the premises, or at a place convenient thereto, on the day of, to inquire into the forcible entry (or forcible detainer) aforesaid; and give to the said C D and E F at least three (3) days' notice of the time and place of the meeting of the jury; and have then there this writ. Witness, etc. The three days notice requirement in this subsection has nothing to do with requesting a jury trial. Rather, this addresses the sheriff s need to serve the warrant on the named tenant/defendant at least three days prior to the noticed hearing date. -11-
In the present case, the forcible detainer action was filed on February 8, 2013, with a hearing date of February 15, 2013, and was served on Fraysur on February 11, 2013. Fraysur filed an answer as well as her motion to continue and for a jury trial three days later, on February 14, 2013. Fraysur certainly met the requirement of CR 38.02 by requesting a jury trial within ten days of receiving notice of the forcible detainer hearing. Furthermore, KRS 383.210(2) provides that [a]t the calling of the cause for trial either party may demand a jury. Fraysur met this requirement as well when she presented her motion via substitute counsel on February 15, 2013. There is no requirement that Fraysur had to make her request any earlier than she did in this case. Therefore, we must hold that the district court erred as a matter of law in failing to grant Fraysur s motion for a jury trial. Next, we shall consider Fraysur s argument that the district court abused its discretion in denying her motion to continue. We review a trial court's denial of a motion for a continuance under an abuse of discretion standard. Morgan v. Commonwealth, 421 S.W.3d 388, 392 (Ky. 2014), citing Snodgrass v. Commonwealth, 814 S.W.2d 579, 581 (Ky. 1991), overruled on other grounds by Lawson v. Commonwealth, 53 S.W.3d 534 (Ky. 2001). In light of our ruling above that the district court erred in denying Fraysur s motion for a jury trial, we must hold that the district court abused its discretion in denying the motion to continue the trial. In so holding, we reject McAlpin s argument that Fraysur would be able to have a jury trial in her circuit court fraud action. -12-
Next, we shall consider Fraysur s argument that the district court erred in granting McAlpin s motion for summary judgment due to lack of notice. CR 56.03 provides that [t]he motion shall be served at least 10 days before the time fixed for the hearing. See also Rexing v. Doug Evans Auto Sales, Inc., 703 S.W.2d 491, 493 (Ky. App. 1986), holding modified by Holt v. Peoples Bank of Mt. Washington, 814 S.W.2d 568 (Ky. 1991) ( We also note that the trial court erred by insisting on hearing the summary judgment motion as scheduled. CR 56.03 requires a party to serve a motion for summary judgment on his opponent at least ten days prior to the hearing on the motion. ) In the present case, McAlpin filed the motion for summary judgment on February 14, 2013, and noticed it for a hearing on February 21, 2013, less than ten days later. In addition, the district court considered and ruled on the motion on February 15, 2013, the day after it was filed. McAlpin asserts that the motion was not technically necessary because all parties were on notice that the trial was scheduled for February 15, 2013. We disagree with this argument. McAlpin chose to file a motion for summary judgment; therefore, he must comply with the notice requirements as set forth in CR 56.03. Accordingly, the district court improperly considered and granted the motion for summary judgment because McAlpin did not comply with the ten-day notice requirement. Next, we shall consider Fraysur s argument that jurisdiction in the district court was not proper. KRS 383.210(1) vests district courts with jurisdiction in forcible detainer actions: Upon complaint by a person aggrieved by a forcible -13-
entry or detainer to the District Court of the county in which the land or tenement, or a principal part thereof, lies, a warrant shall issue to the sheriff. Therefore, we disagree with Fraysur and hold that the district court had jurisdiction to hear this case. Finally, Fraysur argues that McAlpin s acceptance of rental payments after the filing of the forcible detainer action requires a dismissal of this action, citing Daily v. Kelly, supra. We note that the district court dismissed McAlpin s first forcible detainer action against Fraysur for this very reason. However, Fraysur did not raise the issue in this particular action before the district court or in her appeal to the circuit court. As a general rule, a party is not permitted to raise an issue for the first time on appeal. The Court of Appeals is one of review and is not to be approached as a second 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. Lawrence v. Risen, 598 S.W.2d 474, 476 (Ky. App. 1980). See also Fischer v. Fischer, 348 S.W.3d 582, 588 (Ky. 2011) ( 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. ) Because Fraysur failed to raise this argument before the district court, or even the circuit court, this issue is not preserved for our review. -14-
For the foregoing reasons, the opinion of the Montgomery Circuit Court is reversed, and this matter is remanded to the Montgomery District Court for further proceedings in accordance with this opinion. ALL CONCUR. BRIEFS FOR APPELLANT: Dodd Dixon Winchester, Kentucky BRIEF FOR APPELLEE: Elizabeth H. Davis James E. Davis Mt. Sterling, Kentucky -15-