source: Caselaw Access Project

author: Justice COOPER.

license: Public Domain

text:
    James FAIRROW, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2004-SC-0293-MR.
    Supreme Court of Kentucky.
    Oct. 20, 2005.

      Emily Holt Rhorer, Department of Public Advocacy, Frankfort, Counsel for Appellant.
    Gregory D. Stumbo, Attorney General, Gregory C. Fuchs, Assistant Attorney General, Frankfort, Counsel for Appellee.
   Opinion of the Court by

Justice COOPER.

A Hopkins Circuit Court jury convicted Appellant, James Fairrow, Jr., of two counts of trafficking in a controlled substance in the first degree, KRS 218A.1412, and found him to be a persistent felony offender in the first degree, KRS 532.080(3). He received enhanced sentences of thirty-five years in prison for each trafficking conviction, which were ordered to run concurrently. Appellant appeals to this Court as a matter of right, Ky. Const. § 110(2)(b), asserting five claims of reversible error: (1) the admission of improper character evidence; (2) the use of a prejudicial nickname during trial; (3) the failure to excuse a juror for cause; (4) the failure to suppress an in-court identification of Appellant as a result of an unduly suggestive show-up; and (5) the failure to grant Appellant directed verdicts of acquittal on both counts of trafficking in a controlled substance. For the reasons stated herein, we affirm.

Appellant’s convictions arose out of two sales of cocaine to Ms. Gay Royal, a confidential informant (C.I.) for the Madison-ville Police Department. Royal told the police that she wanted to “get straight” and needed some money to leave town, and she offered to participate in a controlled drug buy. The police agreed.

On the morning of July 13, 2003, Detectives Lantrip and Bean of the Madisonville Police Department arrived at the home of Royal’s mother, where the drug buy would occur. They performed a cursory search of Royal (asking her to empty her pockets and take off her shoes) to ensure she did not have drugs on her person that could be used to falsely incriminate someone, but did not search the house. Around 10:40 a.m., Royal telephoned a man whom she referred to as “J-Man,” and whom both she and the police believed to be Appellant. Royal arranged a drug deal as the police recorded the conversation on audiotape. The detectives equipped Royal with an audiotape to secretly record the transaction. They also furnished her with thirty dollars in cash and recorded the serial numbers of the bills.

A short time later, a black Ford Crown Victoria drove up to the house with a male sitting in the front passenger seat. As the police videotaped the encounter, Royal approached the ear on the passenger side, momentarily reached inside, then returned to the house. She gave cocaine to the police which she claimed she purchased from Appellant with the money. She was not searched after the completion of the transaction.

Soon thereafter, as recorded by a surveillance camera in the Grapevine Pantry, a convenience store near Royal’s mother’s residence, Appellant arrived at the store in a black Ford Crown Victoria and purchased a money order with cash. Appellant stipulated at trial that the signature on the money order was his. A bill was later found in the Grapevine Pantry’s safe with a serial number that matched one on the bills provided to Royal for use in the earlier drug buy.

Around 1:00 p.m. the same day, Detectives Lantrip and Bean set up a second controlled drug buy using Royal as the C.I. They followed the same general procedures employed earlier, but this time failed to search Royal or the house before or after the transaction. They observed the same black Ford Crown Victoria come to the house. Royal again left the house with money given to her by the detectives and returned with cocaine. The drug transaction was recorded on videotape and audiotape. Around 9:00 p.m., Brittany Brown, a clerk at the Grapevine Pantry, identified Appellant from a photograph shown to her by police as the man to whom she had sold a money order earlier that day. At trial, Detective Lantrip identified the man in the Grapevine Pantry’s surveillance video as Appellant and his car as the vehicle used in both drug transactions.

I. CHARACTER EVIDENCE.

Appellant first asserts that the trial court erred by permitting the Commonwealth to introduce improper character evidence, specifically, by permitting Detective Lantrip to testify that Royal was a “reliable” informant whose previous work resulted in numerous convictions.

Prosecution: Has she, had she been reliable in the past?
Lantrip: Yes she had.
Defense Attorney: Objection, your Hon- or. Calls for a conclusion as to the facts as to whether she is reliable or not.
Prosecution: Well I think he can.
Judge: The question was, was she relied on.
Prosecution: Rehable, as far as her previous work.
Judge: Well, develop that and I mean, I think it can be. Get into it.
Prosecution: In the past, approximately how many cases has she worked for you in the past?
Lantrip: I had thought about that. I can count over five, just immediately. I would have to go back. It’s been over a few years.
Prosecution: Okay.
Lantrip: I could say numerous.
Prosecution: The cases that she worked, did they have positive results?
Lantrip: Every case I am aware of resulted in a conviction.

Testimony about a C.I.’s reliability is appropriate in an affidavit taken to establish probable cause when the police are seeking to obtain a search warrant. Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983); Lovett v. Commonwealth, 103 S.W.3d 72, 77-79 (Ky.2003). However, admission of such evidence at a criminal trial is a different matter. Lantrip’s testimony that Royal was a rehable informant whose work had always resulted in convictions was inadmissible character evidence under KRE 404(a). Caudill v. Commonwealth, 120 S.W.3d 635, 659-60 (Ky.2003) (testimony that victim was a “cautious” person was inadmissible character evidence). The rule states that “[ejvidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion .... ” According to Professor Lawson:

The word “character,” used most narrowly and accurately, describes the personal disposition or personality of an individual.... [A] person’s character is an intermediate fact that is offered to prove some other ultimate fact, primarily to support an inference that a person acted (or did not act) in conformity with his or her character on a given occasion.

Robert G. Lawson, The Kentucky Evidence Law Handbook § 2.15[2], at 97 (4th ed. LexisNexis 2003).

At first blush, it might seem that this evidence was admissible under KRE 608, which permits the admission of character evidence to attack or support a witness’s credibility. The rule provides in pertinent part that:

(a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, ... may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness: (1) concerning the witness’ character for truthfulness or untruthfulness ....

KRE 608 (emphasis added).

Initially, KRE 608 could not apply to Lantrip’s testimony because he was the Commonwealth’s first witness and Royal had not yet testified when he attempted to bolster her credibility. United States v. Hernandez, 873 F.2d 925, 929 (6th Cir.1989) (“Critical to the resolution of this issue, however, is the fact that at the time [the police detective] was questioned about [the informant’s] truthfulness and reliability, the informant has yet to take the stand and testify himself. Because [the informant] was not a ‘witness,’ Rule 608 is inapplicable.”). Even if Royal could be regarded as a witness (because she testified later), Lantrip’s testimony was still inadmissible because KRE 608(a)(2) requires credibility to be attacked before it is supported. Brown v. Commonwealth, 983 S.W.2d 513, 515 (Ky.1999) (citing Pickard Chrysler, Inc. v. Sizemore, 918 S.W.2d 736, 740 (Ky.App.1995)). Since Lantrip was the Commonwealth’s first witness, Royal’s credibility as a witness had not been attacked prior to Lantrip’s testimony. However, Royal’s credibility was attacked ■ on cross-examination during her subsequent testimony, and we have held that when rehabilitation evidence is admitted before credibility is attacked, any error is harmless as long as credibility is, in fact, later impeached. Reed v. Commonwealth, 738 S.W.2d 818, 821 (Ky.1987) (citing Summit v. Commonwealth, 550 S.W.2d 548, 550 (Ky.1977)). Thus, if Lantrip’s testimony had focused on her character for truthfulness (instead of reliability), the evidence in question would have been proper rehabilitation of her credibility under KRE 608 despite having been erroneously admitted out of order.

The rule, however, “leaves no room for proof of anything other than the specific trait of character that is pertinent to credibility, namely truthfulness or untruthfulness, a restriction that has been part of Kentucky’s law for at least half a century.” Lawson, supra, § 4.20[3], at 302-03 (internal quotation marks omitted) (quoting Minutes, Evidence Rules Review Commission, Commentary on Amended KRE 608 (September 28, 2001)). See also McHargue v. Perkins, 295 S.W.2d 301 (Ky.1956) (construing former CR 43.07, which contained almost identical language as KRE 608(a)(1)); People v. Bouchee, 400 Mich. 253, 253 N.W.2d 626, 632-33 (1977) (“[C]haracter evidence offered to impeach or support a witness’s credibility, other than evidence of prior conviction for crime, must be limited to the particular character trait of truthfulness or untruthfulness.”) (footnote omitted). While a character for “truthfulness” might arguably be inferred from a character for “reliability” under some circumstances, Lantrip was not referring to Royal’s truthfulness as a witness but to her “reliability” as an informant, i.e., in the context of the primary meaning of “reliable,” viz: “dependable.” Webster’s Third New International Dictionary of the English Language Unabridged 1917 (1993). In other words, he was referring to the fact that her work as a confidential informant always resulted in successful “buys” that led to convictions. The evidence was offered to prove that she had accomplished two more successful “buys” from Appellant- for which he should be convicted. Obviously, admission of this testimony constituted error.

Lantrip’s testimony that Royal’s work for the police had always resulted in convictions was also inadmissible because character cannot be proven by specific instances of conduct. When admissible, character may only be proven by “testimony as to general reputation in the community or by testimony in the form of opinion.” KRE 405(a). “By providing only for the use of reputation or opinion evidence in this situation, the rule plainly implies a prohibition on evidence of particular acts of conduct.” Lawson, supra, § 2.20[4], at 116. See also Purcell v. Commonwealth, 149 S.W.3d 382, 399 (Ky.2004). In limited circumstances, specific instances of conduct may be admissible as character evidence. See KRE 405(c) & KRE 608(b). However, neither of those rules applies in this case. Therefore, Lantrip’s testimony that Royal’s work with the police always resulted in convictions was inadmissible. See United States v. Murray, 103 F.3d 310, 321-23 (3d Cir.1997) (admission of similar evidence held to be reversible error when admitted after credibility of confidential informant attacked); United States v. Taylor, 900 F.2d 779, 780-81 (4th Cir.1990) (same).

However, admission of Lantrip’s testimony does not require reversal for a new trial because the error was not properly preserved for appellate review. KRE 103(a)(1). Appellant’s objection to Lan-trip’s testimony as to Royal’s reliability was not on the ground that it was improper character evidence but on the ground that it “calls for a conclusion as to the facts as to whether she is reliable or not.” When Lantrip later testified to the facts supporting his “conclusion,” ie., that the cases Royal worked always resulted in convictions, Appellant did not object at all. When a party states grounds for an objection at trial, that party cannot assert a different basis for the objection on appeal. Tamme v. Commonwealth, 973 S.W.2d 13, 33 (Ky.1998); Ruppee v. Commonwealth, 821 S.W.2d 484, 486 (Ky.1991). Nor are we satisfied that the admission of improper evidence of the character of a mere witness affected Appellant’s substantial rights and constituted manifest injustice so as to require reversal as palpable error. KRE 103(e).

II. NICKNAME.

Appellant filed a motion in limine to suppress any reference at trial to his nickname, “J-Man,” asserting that the jury could assume from the fact that he had a nickname that he was, in fact, a criminal. Appellant was repeatedly identified on the audiotapes as “J-Man,” so removing any such reference at trial would have required suppression or substantial redaction of the audiotapes. The Commonwealth objected because Royal and Lantrip knew Appellant primarily as “J-Man,” the name was only a contraction of Appellant’s real name, “James,” and that he had always been known as “J-Man,” even in high school. The trial court noted that it was not as if Appellant’s nickname was “Crack-Man,” and overruled the motion, finding that the nickname did not suggest criminal activity, thus would not unduly prejudice Appellant. However, the trial court believed it would be disrespectful for the witnesses to otherwise refer to Appellant by his nickname and ordered all witnesses to refer to Appellant by his given name when testifying from the witness stand.

The trial court’s decision whether to exclude evidence because of its prejudicial effect is reviewed for an abuse of discretion. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999). “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Id. We agree that Appellant’s nickname does not suggest criminal activity; thus, the trial court’s decision to allow limited use of the nickname was more than reasonable and certainly not an abuse of discretion.

III. FAILURE TO EXCUSE JUROR FOR CAUSE.

Appellant asserts error in the trial court’s failure to excuse Juror No. 87 for cause. Appellant exercised all of his peremptory strikes and Juror No. 87 actually sat as a juror on the case. Juror No. 87’s son had troubles with alcohol and may have been involved with drugs, indicating possible bias against a defendant charged with trafficking in a controlled substance. However, when questioned, Juror No. 87 said she could be fair and impartial.

“When there is reasonable ground to believe that a prospective juror cannot render a fair and impartial verdict on the evidence, that juror shall be excused as not qualified.” RCr 9.36. However, prospective jurors are qualified to sit on a case provided reasonable grounds exist to believe they can render a fair and impartial verdict based solely on the evidence presented at trial. Maxie v. Commonwealth, 82 S.W.3d 860, 863 (Ky.2002); Sanders v. Commonwealth, 801 S.W.2d 665, 670 (Ky.1990). Whether a juror should be excused for cause is a matter within the discretion of the trial court and will be disturbed only upon a showing of an abuse of that discretion. Maxie, 82 S.W.3d at 863; Caldwell v. Commonwealth, 634 S.W.2d 405, 407 (Ky.1982). The question becomes whether it was reasonable for the trial court to find that Juror No. 87 was qualified to sit as a juror. Maxie, 82 S.W.3d at 863.

Juror No. 87 assured the trial court that she could find Appellant not guilty if the evidence was insufficient to convict. That assurance provided the trial court with a reasonable basis for concluding that she could be fair and impartial. Id.; Sanders, 801 S.W.2d at 670. Thus, the trial court did not abuse its discretion in overruling the motion to excuse Juror No. 87 for cause.

IV. SHOW-UP IDENTIFICATION.

Appellant asserts the trial court erred by allowing the Grapevine Pantry clerk, Brittany Brown, to identify him at trial based on her earlier out-of-court identification from a photograph shown to her by the police. During the evening on the day of the controlled drug buys, the police showed Ms. Brown a photograph of Appellant and asked if he was the man who had purchased the money order from her. She responded in the affirmative. Because only one person is presented for identification, such “show-ups” are highly suggestive and must be viewed with caution. Rodriguez v. Commonwealth, 107 S.W.3d 215, 218 (Ky.2003); Myers v. Commonwealth, 499 S.W.2d 277, 279 (Ky.1973).

The United States Supreme Court has identified five factors to weigh in assessing the possibility that the witness would make an irreparable misidentification from a show-up, based upon the totality of the circumstances.

[T]he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972). We have adopted this five-part test. Savage v. Commonwealth, 920 S.W.2d 512, 513-14 (Ky.1995); Wilson v. Commonwealth, 695 S.W.2d 854, 857 (Ky.1985).

In the case sub judice, Brown had an unobstructed view of Appellant in a well-lit store during broad daylight. She testified that although she did look down to operate the money order machine, she was paying attention and observed Appellant. Furthermore, her description of Appellant provided prior to the show-up proved to be fairly accurate. Brown was very certain that the person in the photograph was the man who bought the money order. She testified that he was a regular customer at the store and that she was already familiar with him. Lastly, the time period between when Appellant purchased the money order and Brown’s identification was around ten hours, certainly not an unreasonably lengthy period of time.

Although it would have been preferable for the police to have shown Brown an array of photographs to overcome the inherent suggestiveness of the show-up procedure, the totality of circumstances, as illustrated by the five Neil factors, indicates that the show-up identification did not violate Appellant’s due process rights.

Y. SUFFICIENCY OF THE EVIDENCE.

Finally, Appellant asserts that the evidence was insufficient to support his convictions and the trial court should have sustained his motions for directed verdicts of acquittal. On a motion for directed verdict of acquittal, all fair and reasonable inferences are drawn in the Commonwealth’s favor. Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991). However, judgment as to the credibility of witnesses and the weight of the evidence are left exclusively to the jury. Id.; see also Commonwealth v. Smith, 5 S.W.3d 126, 129 (Ky.1999). On appellate review, we determine whether, under the evidence viewed as a whole, it was clearly unreasonable for the jury to have found the defendant guilty. Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky.1983).

More than enough evidence was introduced at trial to support Appellant’s conviction. Royal testified that Appellant was the man who sold her the cocaine, and the transactions were recorded on audiotape and videotape. Appellant is shown on videotape entering the Grapevine Pantry and purchasing a money order, and he identified the signature on the money order as his own. Brown Identified Appellant as the man who purchased the money order with cash. One of the bills given to Royal by Detective Lantrip was found in the Grapevine Pantry’s safe. The evidence was sufficient to support Appellant’s convictions.

Accordingly, the judgments of conviction and sentences imposed by the Hopkins Circuit Court are affirmed.

All concur.

      . The trial took place on February 9 and 10, 2004, after the July 2003 revision of KRE 608.

      . Under KRE 405(c), specific instances of conduct are admissible if a person’s character is an essential element of a charge, claim, or defense. Those circumstances are not present in this case. Under KRE 608(b), testimony about specific instances of conduct to attack or support a witness' credibility may not be proved by extrinsic evidence, but may be elicited on cross-examination of the witness whose conduct is at issue. Here, the testimony in question was elicited during the direct examination of Detective Lantrip, not during cross-examination. Thus, KRE 608(b) does not apply.


author: Justice ROACH.

text:
    THE INDEPENDENT ORDER OF FORESTERS, Appellant, v. Hon. McKay CHAUVIN, Judge, Jefferson Circuit Court, Appellee. and Forest Richard Pope, Real Party in Interest.
    No. 2005-SC-000193-MR.
    Supreme Court of Kentucky.
    Oct. 20, 2005.

      Joseph L. Hamilton, Marjorie Farris, Allison E. Jones, Stites & Harbison, Louisville, Counsel for Appellant.
    McKay Chauvin, Judge, Louisville, pro se.
    Kenneth H. Baker, Louisville, Counsel for Real Party In Interest.
   Opinion of the Court by

Justice ROACH.

In an original action in the Court of Appeals, Appellant, the Independent Order of Foresters (“Foresters”), sought a writ of prohibition against the circuit court on the grounds that Forest Richard Pope’s claims were barred by res judicata. The Court of Appeals denied the petition, finding that Foresters had failed to carry its burden of proof. On appeal, Foresters repeats its claim that Pope’s cause of action is barred by res judicata. Because Foresters has failed to show that its claim is such that the extraordinary remedy of writ is even available, we affirm the Court of Appeals.

I. FACTUAL BACKGROUND

Foresters is a fraternal benefit society that sells life and health insurance to its members. In 1989, Forest Richard Pope purchased a universal life insurance policy from Foresters. The insurance policy included a child term rider that would pay the policyholder $10,000 upon the death of the covered child. Pope’s daughter was the covered child under his policy. She died in 2000 at the age of 26. Pope filed a claim under the child term rider later that year, and Foresters denied it as not being in effect at the time of the daughter’s death.

In 2001, Forest Richard Pope sued Foresters in the Jefferson Circuit Court over the child term rider of his insurance policy. Specifically, Pope alleged that he had purchased the child term rider and paid its annual premiums with the understanding that it would be effective until he turned 65. This belief was based on the fact that the annual billing statements Pope received from Foresters listed February 2, 2009 (when Pope will be 65) as the termination date of the child term rider.

Foresters, however, claimed that coverage under the child term rider terminated at the earlier of the policyholder turning 65 or the policyholder’s child turning 25. Foresters’s interpretation was based on the following language in the rider: “[A] child will cease to be an Insured Child on the earlier of the child’s 25th birthday or the anniversary of the date of issue of the certificate nearest the member’s 65th birthday.” Foresters claims that coverage lapsed when Pope’s daughter turned 25 on July 3, 1998. However, Foresters continued to bill Pope and he continued to pay for the child term rider after his daughter turned 25.

Pope discovered the difference between his interpretation and Foresters’s only when Foresters refused to pay the claim he filed in 2000. Foresters also refused to repay the premiums that Pope had paid after his daughter turned 25. Based on these facts, Pope alleged in his complaint that Foresters had engaged in the practice of charging premiums when it knew or should have known that no benefit would inure to policyholders because their insured children had reached the age of 25. His complaint specifically claimed breach of contract, rescission, unjust enrichment, and negligent misrepresentation. He also sought to have the case certified as a class action, claiming that thousands of other people were similarly situated.

The insurance policy on which Pope based his lawsuit had previously been the subject of a nationwide class action lawsuit. That suit, which focused on Foresters’s sales practices, was settled, and the Federal District Court for the District of New Jersey entered a Final Order and Judgment. See Roy v. Independent Order of Foresters, No. 97-CV-6225 (JCL), Final Order and Judgment (D.N.J. Aug. 3, 1999) [hereinafter Final Order and Judgment].

Foresters moved the trial court to dismiss Pope’s claim as barred by res judica-ta because issues related to the child term rider, as part of the insurance policy in Roy, had already been decided by the Roy settlement. Foresters cited specifically to language in the Final Order and Judgment that gives it preclusive, res judicata effect over future claims based on the conduct involved in the Roy lawsuit. The trial court denied Foresters’s motion, refusing to give the Roy Final Judgment and Order res judicata effect on Pope’s claims. Specifically, the trial court held that Pope’s current claims were distinct from those covered by the Final Order and Judgment because the Roy litigation “involved a point-of-sale fraud,” whereas Pope’s claims were based on allegations of “fraud ... after the purchase of the policy.”

Rather than proceeding with discovery regarding Pope’s claims, Foresters initiated an original action in the Court of Appeals by filing a petition for a writ of prohibition against the trial court on the alternative grounds that the circuit court was proceeding without jurisdiction or that Foresters would suffer great injustice and irreparable injury. Both grounds were based on Foresters’s assertion that Pope’s underlying cause of action was barred by res judicata. The Court of Appeals denied the petition, noting simply the following:

The argument that Foresters makes in this original action fails to satisfy this Court that the respondent trial court is proceeding without jurisdiction. Further, in order to show entitlement to a review of the merits of its alternate argument, Foresters was required to demonstrate the ... prerequisites of lack of an adequate remedy by appeal or otherwise and great injustice and irreparable injury. It is clear to the Court that Foresters did not carry that burden.

Foresters now appeals to this Court as a matter of right. See Ky. Const. § 115 (“In all cases, civil and criminal, there shall be allowed as a matter of right at least one appeal to another court.”); CR 76.36(7)(a) (“An appeal may be taken to the Supreme Court as a matter of right from a judgment or final order in any proceeding originating in the Court of Appeals.”).

II. ANALYSIS

The writ of prohibition is such an “extraordinary remedy” that Kentucky courts “have always been cautious and conservative both in entertaining petitions for and in granting such relief.” Bender v. Eaton, 343 S.W.2d 799, 800 (Ky.1961). We have divided writ cases into “two classes,” which are distinguished by “whether the inferior court allegedly is (1) acting without jurisdiction (which includes ‘beyond its jurisdiction’), or (2) acting erroneously within its jurisdiction.” We have also delineated a third “class” of writ cases (in essence, a subclass of the “acting erroneously” class): the so-called “certain special cases.” Id. at 801. Foresters claims it is entitled to a writ of prohibition under all three of the writ categories we have identified. Because the requirements for a writ under each class are different, we discuss Foresters’s claim under each separately.

A. Acting Without Jurisdiction

We recently announced the following standard as to the granting of writs when the lower court is allegedly acting without jurisdiction: “A writ of prohibition may be granted upon a showing that ... the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court .... ” Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky.2004). Foresters claims that the trial court is proceeding outside its jurisdiction because Pope’s action is barred by res judicata. Foresters cites three cases—Slone v. R & S Mining, Inc., 74 S.W.3d 259 (Ky.2002); Potter v. Eli Lilly and Co., 926 S.W.2d 449 (Ky.1996); and Stephens v. Goodenough, 560 S.W.2d 556 (Ky.1977)—in support of its contention.

Foresters has miseharaeterized these cases. In Slone, we held that a dismissed workers’ compensation claim cannot be reopened based solely on “evidence of a change of medical condition.” 74 S.W.3d at 262. While Slone was based in part on res judicata, it does not stand for the blanket proposition that res judicata removes jurisdiction over a later, other claim. Even assuming that Slone is applicable outside the limited context of the workers’ compensation statutory scheme, it only prohibits the reopening of the specific denial of an award.

Foresters’s citation to Potter and Stephens is even less compelling. While Foresters correctly notes that Potter involved the appeal of a writ issued because the Court of Appeals felt that the circuit court had “lost jurisdiction to reopen the judgment,” 926 S.W.2d at 452, it fails to note that we reversed the Court of Appeals and dissolved the writ in that case. But even if the Court of Appeals had been correct, its writ was premised on the claim that the circuit court had lost jurisdiction because the judgment had become final, not because of the res judicata effect of the judgment. More importantly, Potter contains no discussion of res judicata. Stephens stands merely for the proposition that a ruling on a petition for a writ of prohibition can have res judicata effect on a subsequent petition, not that it strips the court of jurisdiction to consider the subsequent petition.

As we have repeatedly recognized, “the rule of res judicata is an affirmative defense .... ” Yeoman v. Commonwealth, Health Policy Bd., 983 S.W.2d 459 (Ky.1998); see also CR 8.03 (“In pleading to a preceding pleading, a party shall set forth affirmatively ... res judicata ... and any other matter constituting an avoidance or affirmative defense.”). And as an affirmative defense, res judicata can be waived. See, e.g., Old Line Life Ins. Co. of America v. Garcia, 418 F.3d 546, 550 (6th Cir.2005) (“As a general rule, failure to plead an affirmative defense results in a waiver of that defense.”). This alone indicates that res judicata has no jurisdictional dimension.

As applied to petitions for writs, the Ohio Supreme Court has articulated the controlling principle succintly: “[R]es judicata is an affirmative defense which does not divest the jurisdiction of the second tribunal to decide the validity of that defense.” Whitehall ex rel. Wolfe v. Ohio Civ. Rights Comm., 74 Ohio St.3d 120, 656 N.E.2d 684, 687 (1995); see also 63C Am. Jur.2d, Prohibition § 65 (1997) (“The fact that the defense of res judicata based on a decision in a former action is available in a second action involving the same issues does not deprive the court in which the second action is brought of jurisdiction to try the case again, so as to warrant the issuance of a writ of prohibition; the aggrieved party’s remedy is to set up the res judicata plea as a defense in that suit and to appeal from an adverse decision.”). As such, Foresters’s claim that the Roy Final Judgment and Order has res judicata effect on Pope’s current cause of action is insufficient to warrant the remedy of a writ of prohibition under the jurisdictional category.

B. Acting Erroneously

We recently announced the following standard as to the granting of writs in cases where the trial court is alleged merely to be acting erroneously:

A writ of prohibition may be granted upon a showing ... that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.

Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky.2004); see also Bender, 343 S.W.2d at 801 (“In the second class of cases relief ordinarily has not been granted unless the petitioner established, as conditions precedent, that he (a) had no adequate remedy by appeal or otherwise, and (b) would suffer great and irreparable injury (if error has been committed and relief denied.” (first emphasis added))).

“No adequate remedy by appeal” means that any injury to Appellants “could not thereafter be rectified in subsequent proceedings in the case.” Bender, 343 S.W.2d at 802. Lack of an adequate remedy by appeal is an absolute prerequisite to the issuance of a writ under this second category. Id. at 801. (“Our cases involving controversies in this second class, where it is alleged the lower court is acting or proceeding erroneously within its jurisdiction, have consistently (apparently without exception) required the petitioner to pass the first test; i.e., he must show he has no adequate remedy by appeal or otherwise.” (emphasis added)).

Foresters asserts that it has no adequate remedy by appeal because “[a]ny right to appeal ... after full trial on the merits is necessarily an inadequate remedy.” That Foresters faces the costs of litigation absent our ordering the Court of Appeals to grant the writ simply is not enough to show inadequate remedy by appeal: “The alleged irreparable injury is the expense to be incurred in defending in the circuit court. Petitioners are in no different position from any other defendant who is put to the expense of contesting a claim. We do not find the aspect of injustice here which is necessary for prohibition. The remedy of appeal appears to us to be adequate.” Brown v. Knuckles, 413 S.W.2d 899, 901 (Ky.1967) (citations omitted, emphasis added); see also Fritsch v. Caudill, 146 S.W.3d 926 (Ky.2004) (holding that the possibility of trying case in the wrong venue did not present inadequate remedy by appeal because “[i]f appellants are correct that the Floyd Circuit Court is an improper venue for appellee’s civil action, in due course, the trial court or an appellate court will so recognize and relief in the nature of dismissal for improper venue will be granted”); Garrard County Bd. of Educ. v. Jackson, 12 S.W.3d 686, 689 (Ky.2000) (holding “the appellants have not demonstrated that an erroneous class certification ... would prejudice them in a manner which the courts cannot address on appeal”).

Foresters attempts to avoid the effect of these cases by arguing that because of the large cost involved in defending a nationwide class action a second time, its remedy by appeal in this case, as opposed to the other less complex litigation we have previously addressed, is inadequate. We have previously rejected just such an argument:

In effect, we are invited to apply a different standard to big cases than we would apply to more modest cases. The unfairness and unworkability of such a practice is evident and needs no further comment.
... Our case law is sufficient to permit relief in truly extraordinary situations. We are unwilling to undermine the authority of trial courts by opening the appellate door via extraordinary writs to every party claiming error during pretrial proceedings and trial.

National Gypsum Co. v. Corns, 736 S.W.2d 325, 327 (Ky.1987) (emphasis added); see also Fayette County Farm Bureau Fed’n v. Martin, 758 S.W.2d 713, 714 (Ky.App.1988) (“That a party will be exposed to the inconvenience and cost of litigation does not alone justify immediate review of an otherwise nonfinal order.”).

In making this argument, Foresters fails to acknowledge one of the fundamental aspects of writs as remedies: they are truly extraordinary in nature and are reserved exclusively for those situations where litigants will be subjected to substantial injustice if they are required to proceed. This is why the bar is set so high — in the form of the “conditions precedent” for the mere availability of a writ as a possible remedy — for an appellate court even to reach the question of whether the lower court has committed error. Ultimately, however, we conclude that the remedy of a writ of prohibition is not available to Foresters because its remedy by appeal is adequate.

Finally, we note that though our cases have attempted to treat the adequacy of the remedy by appeal and the existence of great and irreparable harm as separate issues, see Bender, 343 S.W.2d at 801 (“so far as possible tests (a) and (b) should be considered separately”), the focus of the latter on irreparability has led to some inevitable overlap in some of our cases. But on this issue, we have expressly held that being forced to bear the cost of defending a lawsuit simply does not rise to the level of great and irreparable injury:

By this proceeding, petitioners are attempting a premature appeal and seeking a precipitate decision of this Court on an interlocutory order. It takes a minimum of imagination to envision the utter confusion and chaos in the trial of cases if this Court should entertain original proceedings in cases of this character. The basis urged for so doing is the financial distress of litigants. This is not an uncommon status, however unwanted it may be, and is not confined to litigants. Thus, the delay incident to litigation and appeal by litigants who may be financially distressed cannot be considered as unjust, does not constitute irreparable injury, and is not a miscarriage of justice.

Ison v. Bradley, 333 S.W.2d 784, 786 (Ky.1960) (emphasis added); see also Fritsch, 146 S.W.3d at 930 (“As to great and irreparable injury, we see none. Inconvenience, expense, annoyance, and other undesirable aspects of litigation may be present, but great and irreparable injury is not.”); Schaetzley v. Wright, 271 S.W.2d 885, 886-87 (Ky.1954) (“We are inclined to think that a misunderstanding of the law may have arisen as a result of the frequent reference, in opinions of this Court, to ‘great and irreparable injury as being one of the prerequisites to the issuance of an order of prohibition. An impression has arisen that the mere loss of valuable rights or property through an error of the court constitutes great and irreparable injury entitling the loser automatically to relief from the error. However, a careful analysis- of the cases dealing with the supervisory power of the Court of Appeals under Section 110 of the Kentucky Constitution will disclose that in addition to the element of great and irreparable injury there must be some aspect of injustice. There must be something in the nature of usurpation or abuse of power by the lower court, such as to demand that the Court of Appeals step in to maintain a proper control over the lower court. The object of the supervisory power of the Court of Appeals is to prevent miscarriage of justice.” (citations omitted)). Thus, Foresters has also failed to show great and irreparable injury.

C. Certain Special Cases

The usual requirement that a petitioner show great and irreparable injury, however, “is not an absolute prerequisite” to the issuance of a writ. Bender, 343 S.W.2d at 801. As noted above, we have carved out a limited exception to this requirement for “certain special cases.” But the exception is very limited:

[I]n certain special cases this Court will entertain a petition for prohibition in the absence of a showing of specific great and irreparable injury to the petitioner, provided a substantial miscarriage of justice will result if the lower court is proceeding erroneously, and correction of the error is necessary and appropriate in the interest of orderly judicial administration.

Bender, 343 S.W.2d at 801. We have tended to apply this exception only in those limited situations where the action for which the writ is sought would blatantly violate the law, for example, by breaching a tightly guarded privilege or by contradicting the clear requirements of a civil rule. See Wal-Mart Stores, Inc. v. Dickinson, 29 S.W.3d 796, 808 (Ky.2000) (noting that deposing an attorney or paralegal involved in the case would normally fall under the “certain special cases” exception because of the attorney-client privilege); id. at 801-02 (noting that a judge’s failure to include findings of fact as required by CR 34.01 in a premises inspection order met the exception); Bender, 343 S.W.2d at 803 (holding that a judge’s order for production of a doctor’s report was a violation of the then recently enacted Civil Rules and thus fell under the exception).

Fortunately, we need not wade into the quagmire of determining whether Foresters’s claim meets the unique requirements of the “certain special cases” ’ exception. This is because the exception allows a petitioner to avoid only the requirement of great and irreparable injury, not the requirement of lack of an adequate remedy by appeal. Bender, 343 S.W.2d at 801. As discussed above, Foresters has an adequate remedy by appeal, thus it cannot claim the protection of the “certain special cases” exception.

III. CONCLUSION

We need not reach the merits of Foresters’s res judicata claim because it has failed even to establish that the remedy of a writ of prohibition is available, much less that the Court of Appeals abused its discretion in denying the petition. Therefore, we affirm the Court of Appeals.

All concur.

      . The allegations are taken from Pope’s Second Amended Complaint. Because the litigation leading to the filing of the Second Amended Complaint was lengthy and complex, we will discuss it only when necessary to understand the current issues.


author: VANMETER, Judge.

text:
    Dora CAUDILL, Appellant, v. Jean ACTON, Appellee.
    No. 2003-CA-001957-DG.
    Court of Appeals of Kentucky.
    Dec. 17, 2004.
    Rehearing Denied Jan. 27, 2005.
    Discretionary Review Denied by Supreme Court Nov. 16, 2005.

      Jason Todd Hardin, Louisville, KY, for Appellant.
    Dana R. Kolter, Jean Acton, Louisville, KY, for Appellee.
    Before TACKETT, TAYLOR, and VANMETER, Judges.
   OPINION

VANMETER, Judge.

Under the Uniform Residential Landlord and Tenant Act (URLTA), a tenant is liable for damages to the leased premises, including those which occur during any holdover period of possession. Since Dora Caudill signed an apartment lease agreement as a “tenant,” the fact that she never resided in the apartment did not change her obligations to the landlord. We affirm the decision of the Jefferson Circuit Court.

In October 1999 Dora Caudill and her father, Alvin Best, signed a lease agreement in which they both were named as tenants and Jean Acton was named as landlord. The twelve-month lease commenced on October 3, with a requirement that notice of any intent to renew the lease be given at least sixty days prior to the lease’s expiration. Caudill never resided in the apartment, but she paid Best’s rent and other bills and provided occasional housekeeping assistance.

Neither Caudill nor Best gave renewal notification, and Best continued to live in the apartment for eight months after the lease expired. In June 2001 Acton made a written demand for the apartment to be vacated. Best vacated the premises on or about July 8, and Acton discovered substantial damages. Acton sued both Caudill and Best for lost rent and damages.

The Jefferson District Court granted Caudill’s motion for a directed verdict, finding that Caudill was not an “occupant” or “resident” of the apartment, and that she was not a holdover tenant as defined by KRS 383.160(1). The court found that although Best’s continued residency created a holdover tenancy on his part, it did not extend Caudill’s obligations beyond the lease period. In addition, the court found insufficient evidence to prove that the damages to the apartment occurred before the lease expired. The court denied Acton’s claim for treble damages under KRS 381.400, and held that since there was “no evidence” that Caudill damaged the premises in any way, as a matter of law she could not be held liable for having violated tenant maintenance obligations.

On appeal, the Jefferson Circuit Court found that the district court erred in ruling that Caudill “was not a tenant in the apartment, and by granting a directed verdict against” Acton. The circuit court held that because Caudill made monthly rent payments after the lease expired, she continued in a month-to-month tenancy regardless of whether she occupied the residence. After noting that by signing the lease agreement Caudill agreed “to keep the property clean and in good repair,” the circuit court reversed and remanded the district court’s judgment. This appeal followed.

This matter is now before us on discretionary review. Caudill claims that the circuit court erred in reversing the district court’s determination that she was not a tenant, as that determination was supported by substantial evidence. We disagree.

On appeal, “[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” On the other hand, conclusions of law are subject to independent appellate determination. In this regard, “[t]he construction and interpretation of a contract ... are questions of law to be decided by the court.” The trial court’s conclusions that Caudill was not bound to the terms of the lease because she was not an “occupant” of the apartment, and/or that she was not bound past the original term of the lease, are questions of law for which an appellate court’s standard of review is de novo.

According to the express terms of the lease, Caudill signed the document as a designated tenant. She did not sign as an agent, or in any other representative capacity tending to indicate that she possessed anything other than full rights and responsibilities as a tenant. Although not addressed by the provisions of the lease, Caudill’s intention to not occupy the apartment is immaterial. The lease contains no limitation on Caudill’s obligations to make lease payments or to comply with other duties required of a tenant. Caudill’s reliance on Justice v. Justice and Phelps v. Brown, in support of her argument that the trial court was in the best position to weigh the credibility of the witnesses when making findings of fact, is misplaced since the issue does not concern the witnesses’ credibility. Instead, the language of the lease agreement itself unambiguously indicated that a landlord-tenant relationship existed between Caudill and Acton. The parol evidence rule prevents a party from introducing testimony or other extrinsic evidence to vary or alter the terms of a written agreement. In addition, the URLTA defines “tenant” as “[a] person entitled under a rental agreement to occupy a dwelling unit to the exclusion of others.” Under the lease, both Caudill and Best were tenants who possessed identical rights and obligations with respect to the apartment and the landlord. The circuit court did not err by reversing the district court’s determination that Caudill was not liable under the lease.

Next, Caudill asserts that the circuit court erred by finding that she was a holdover tenant. We disagree. JCO § 151.49(D) addresses holdover possession as follows:

If the tenant remains in possession without the landlord’s consent after expiration of the term of the rental agreement or its termination, the landlord may bring an action for possession.... If the landlord consents to the tenant’s continued occupancy, 151.23(C) applies.

Caudill’s tenancy became that of a holdover tenant when she and Best remained in possession of the apartment and continued to make monthly rent payments to Acton after the lease agreement expired. Simply put, the apartment’s possession by Best was possession by Caudill as well. The rule governing the interaction of JCO §§ 151.49 and 151.23(C) is no more complicated than the rule that following the expiration of a definite lease term, i.e., during a holdover term, the tenancy becomes week-to-week if paid weekly, or month-to-month if paid monthly. For this reason, the circuit court properly concluded that Caudill was a holdover tenant whose tenancy was month-to-month, and that her tenancy did not terminate until the apartment was vacated. Under both the lease agreement and the ordinance, therefore, Caudill was liable for any unpaid rent and damages which accrued during the terms of the lease and holdover.

Finally, Caudill claims, based on Region al Jail Authority v. Tackett, that the circuit court erred in relying on JCO § 151.49 since neither the district court nor Acton cited the ordinance below. That case, however, merely stands for the proposition that an issue not raised in the lower court may not be reviewed on appeal. In the instant case, the district court addressed issues regarding the binding nature of a lease and the effect of a tenant’s holdover possession of an apartment following the expiration of a lease term. The Jefferson Circuit Court correctly noted that since Jefferson County had adopted the URLTA, it should apply JCO § 151.49 to the issue rather than KRS 383.160, which had been applied by the district court. The decision in Tackett does not in any way suggest that reviewing courts may not identify and rely on the most relevant authorities regardless of whether those authorities were previously identified or relied upon by the parties or the lower courts.

The order of the Jefferson Circuit Court is affirmed.

ALL CONCUR.

      . Caudill argues that the circuit court ignored the fact that, as found by the district court, she was reimbursed for the expenses from Best’s savings. The source of the funds, however, is immaterial to our decision.

      . CR 52.01; A A Mechanical, Inc. v. Thermal Equipment Sales, Inc., 998 S.W.2d 505, 509 (Ky.App.1999).

      . A A Mechanical, 998 S.W.2d at 509.

      . First Commonwealth Bank of Prestonsburg v. West, 55 S.W.3d 829, 835 (Ky.App.2000).

      . Id. at 835-36.

      . 421 S.W.2d 868 (Ky.1967).

      . 295 S.W.2d 804 (Ky.1956).

      . Stallard v. Adams, 312 Ky. 532, 228 S.W.2d 430, 431 (1950). The court in Stallard held that the parol evidence rule did not apply where a contract was procured by fraud. See also 49 AmJur.2d, Landlord and Tenant, § 50 (1995) (parol evidence admissible to show fraud, accident, or mistake). In the instant case, Caudill makes no claim of fraud, accident, or mistake.

      . Jefferson County Ordinance (JCO) § 151.03, KRS 383.545(15). As noted by the circuit court, Jefferson County adopted the URLTA, KRS 383.505 to 383.715, in 1984 as JCO §§ 151.01 to 151.51. Under KRS 383.500, any city, county or urban county government which enacts the provisions of the Act must do so "in their entirety and without amendment.” For ease of reference, we include parallel citations between the JCO provisions and the corresponding sections of KRS.

      . KRS 383.695(4).

      . KRS 383.565(3).

      . KRS 383.695(4).

      . Id.

      . JCO 151.42, KRS 383.660 (remedy for failure to pay rent); JCO 151.43, KRS 383.665 (remedy for failure to maintain); and JCO 151.47, KRS 383.685 (remedy after termination).

      . 770 S.W.2d 225 (Ky.1989).

      . KRS 383.695.

      .KRS 383.695.


author: BUCKINGHAM, Judge.

text:
    Robert SCHWARTZ, Appellant, v. Billy HASTY and Kentucky Farm Bureau Mutual Insurance Company, Appellees.
    No. 2003-CA-000796-MR.
    Court of Appeals of Kentucky.
    Feb. 11, 2005.
    Discretionary Review Denied by Supreme Court Nov. 16, 2005.

      Don A. Pisacano, Lexington, KY, for appellant.
    Guy R. Colson, Casey C. Stansbury, Lexington, KY, for appellee, Kentucky Farm Bureau.
    Before BUCKINGHAM, DYCHE, and TAYLOR, Judges.
   OPINION

BUCKINGHAM, Judge.

Robert Schwartz appeals from an order of the Garrard Circuit Court holding that the underinsured motorist (UIM) benefits received by him were not subject to the collateral source rule and could be credited against the tort damages awarded to him in determining the damages recoverable from Billy Hasty, the tortfeasor. This is apparently an issue of first impression in Kentucky law. We reverse and remand.

On May 29, 2000, Schwartz was severely injured in a vehicular accident when a ear driven by Hasty made a left turn into a driveway in front of him. Hasty had vehicle liability insurance coverage through a policy with Kentucky Farm Bureau Mutual Insurance Company (Farm Bureau). As the policy related to this accident, the liability limit was $100,000. Schwartz had two vehicle liability insurance policies, one with State Farm Insurance Company (State Farm) on his truck and the other with Progressive Northern Insurance Company (Progressive) on his motorcycle. As the policies were applicable to this accident, the State Farm policy had UIM coverage for $100,000 and the Progressive policy had UIM coverage for $25,000.

Schwartz filed a personal injury tort complaint against Hasty in the Garrard Circuit Court, seeking damages suffered as a result of the accident. Hasty filed an answer and counterclaim alleging contributory negligence. Schwartz later filed an amended complaint that added Farm Bureau, State Farm, and Progressive as parties. The amended complaint included a new claim of bad faith against Farm Bureau.

After conducting discovery, Farm Bureau, State Farm, and Progressive each elected not to participate in the trial. Schwartz and Farm Bureau also entered into an agreed order bifurcating the proceeding by first trying the original personal injury tort claim and reserving the bad faith settlement tort claim until resolution of the injury claim. Schwartz filed a pretrial motion asking the court to exclude any evidence of collateral source payments, and the court granted the motion.

The case was tried before a jury, and the jury found both parties contributorily negligent with Hasty 80% at fault and Schwartz 20% at fault. The jury found total damages of $248,313. Consistent with the jury’s verdict assessing contributory fault, the trial court entered a judgment in favor of Schwartz for $198,650.40 plus costs and interest. Hasty then filed a notice of appeal of the trial court’s judgment.

After Hasty filed a notice of appeal, Schwartz settled his claims against both of the UIM carriers. He recovered the policy limit of $25,000 from Progressive and also recovered $78,614.27 from State Farm. Schwartz subsequently filed a notice to take Hasty’s deposition to inquire as to his financial assets in order to facilitate collection on the judgment.

In January 2003 Schwartz, Hasty, and Farm Bureau entered into a partial settlement whereby Farm Bureau paid Schwartz $160,000, $100,000 of which was related to Hasty’s liability insurance coverage and $60,000 of which was related to Schwartz’s bad faith claim against Farm Bureau. In return, Schwartz released and discharged Hasty and Farm Bureau from all actions or claims that arose from the accident. Schwartz also agreed to indemnify and hold Hasty harmless for any potential claim of Progressive for indemnity against Hasty for its payment of UIM benefits to Schwartz. The settlement agreement, however, stated that the parties disagreed as to the effect of the UIM payments, and it reserved the issue of whether these payments would offset the jury’s verdict as collateral source payments. Farm Bureau agreed to be responsible for any additional payments to satisfy the judgment should resolution of this issue so require.

Consistent with the settlement agreement, Farm Bureau filed a motion for order of satisfaction, seeking resolution of the reserved issue. Farm Bureau argued that KRS 304.39-320 limited Schwartz to recovery of an amount equal to the jury’s verdict reduced by UIM payments. Farm Bureau asserted that the UIM payments did not fall within the collateral source rule. Schwartz filed a response to the motion, maintaining that UIM benefits do constitute collateral source payments and that KRS 304.39-320 did not apply to Farm Bureau.

Meanwhile, Progressive filed a motion for declaratory judgment, seeking indemnification from Hasty for the $25,000 it paid to Schwartz under its UIM policy based on its subrogation rights recognized in KRS 304.39-320(4). Hasty responded that Progressive was required to file a separate action on its subrogation claim rather than utilize a summary proceeding. The trial court summarily denied Progressive’s motion.

On March 26, 2003, the trial court entered an order of satisfaction in favor of Farm Bureau. The order relieved Farm Bureau of any further obligation on the judgment, holding that Hasty was entitled to a credit or setoff against the amount in the jury verdict due to the UIM payments made by State Farm and Progressive. The court stated it could find nothing in KRS 304.39-320 to indicate an intent to allow an injured party to receive a double recovery. Schwartz has brought this appeal from the order of satisfaction.

Schwartz contends that the trial court erred by faffing to apply the collateral source rule to deny Hasty a credit for the UIM payments by State Farm and Progressive. Farm Bureau maintains that the court correctly held that the collateral source rule did not apply and that the rule was inconsistent with KRS 304.39-320. The applicability of the collateral source rule is a matter of law subject to our independent review. See, e.g., Weatherly v. Flournoy, 929 P.2d 296, 298 (Okla.Ct.App.1996); Paulson v. Allstate Ins. Co., 263 Wis.2d 520, 665 N.W.2d 744, 749 (2003). Similarly, the interpretation of a statute is a legal issue subject to de novo or independent review. See Bob Hook Chevrolet Isuzu, Inc. v. Commonwealth, Transp. Cabinet, 983 S.W.2d 488, 490-91 (Ky.1998).

Farm Bureau’s major contention is that denying Hasty a credit or setoff for the UIM payments received by Schwartz would allow Schwartz to receive a double recovery. A general goal of compensatory damages in tort cases is to put the victim in the same position he would have been prior to the injury or make him whole to the extent that it is possible to measure his injury in terms of money. See, e.g., Kentucky Cent. Ins. Co. v. Schneider, 15 S.W.3d 373, 374 (Ky.2000); Paducah Area Pub. Library v. Terry, 655 S.W.2d 19, 23 (Ky.App.1983); 22 Am.JuR.2d Damages § 27 (2003). As a result, an injured party typically cannot receive more than one recovery as compensation for the same harm or element of loss. See Morrison v. Kentucky Cent. Ins. Co., 731 S.W.2d 822, 825 (Ky.App.1987). However, the collateral source rule is an exception to the rule against double recovery. See Hardaway Management Co. v. Southerland, 977 S.W.2d 910, 918 (Ky.1998).

The collateral source rule provides that benefits received by an injured party for his injuries from a source wholly independent of, and collateral to, the tortfeasor will not be deducted from or dimmish the damages otherwise recoverable from the tortfeasor. See, e.g., 22 Am.JuR.2d Damages § 392 (2003); Black’s Law Dictionary 254 (7th ed.1999); Restatement (Second) of Torts § 920A(2) (1979). The collateral source rule has been long recognized in Kentucky. See Louisville & N.R. Co. v. Carothers, 65 S.W. 833, 834 (Ky.1901); McFarland v. Bruening, 299 Ky. 267, 185 S.W.2d 247, 249 (1945); Barr v. Searcy, 280 Ky. 535, 133 S.W.2d 714, 715 (1939). In Taylor v. Jennison, 335 S.W.2d 902 (Ky.1960), the court stated:

The general rule recognized in other jurisdictions is that damages recoverable for a wrong are not diminished by the fact that the injured party has been wholly or partly indemnified for his loss by insurance (to whose procurement the wrongdoer did not contribute). We are convinced this rule is sound, particularly since there is no logical or legal reason why a wrongdoer should receive the benefit of insurance obtained by the injured party for his own protection. It is a collateral contractual arrangement which has no bearing upon the extent of liability of the wrongdoer. [Citations omitted.]

Id. at 903.

Various justifications have been presented in support of the rule. First, the wrongdoer should not receive a benefit by being relieved of payment for damages because the injured party had the foresight to obtain insurance. See Taylor, 335 S.W.2d at 903; O'Bryan v. Hedgespeth, 892 S.W.2d 571, 576 (Ky.1995). Second, as between the injured party and the tortfeasor, any so-called windfall by allowing a double recovery should accrue to the less culpable injured party rather than relieving the tortfeasor of full responsibility for his wrongdoing. See Johnson v. Beane, 541 Pa. 449, 664 A.2d 96, 100 (1995); Bozeman v. State, 879 So.2d 692, 703 (La.2004); 22 Am.JuR.2d Damages § 392 (2003). Third, unless the tortfeasor is required to pay the full extent of the damages caused, the deterrent purposes of tort liability will be undermined. See Restatement (Second) of Torts § 901(c) (1979); Ellsworth v. Schelbrock, 235 Wis.2d 678, 611 N.W.2d 764, 767 (2000).

Another issue often raised with the collateral source rule involves subrogation. Especially with automobile insurance coverage, insurers have an equitable, contractual, or statutory right of subrogation in the benefits paid to the insured. See, e.g., Wine v. Globe Am. Cas. Co., 917 S.W.2d 558 (Ky.1996). Subrogation is designed to prevent unjust enrichment by requiring one who benefits from the payment of the debt of another to ultimately pay it themselves. Id. at 561. In the context of automobile insurance, the doctrine of subrogation serves dual purposes to prevent double recovery by the insured and to prevent a windfall to the tortfeasor. Id. at 562. While the legislature deleted a provision in KRS 304.39-320 explicitly providing for statutory subrogation for UIM benefits, the Kentucky Supreme Court has recognized insurers’ equitable and contractual right to subrogation. See Coots v. Allstate Ins. Co., 853 S.W.2d 895, 901 (Ky.1993).

While the double recovery aspect of the collateral source rule and subrogation may appear at first to clash, the two doctrines are compatible. The collateral source rule and the principles of subrogation work in tandem by ensuring that the tortfeasor bears the ultimate responsibility for payment of damages without diminishment for benefits received by the injured party from collateral sources, while preventing double recovery by the injured party where the party providing the collateral source benefits seeks reimbursement through subrogation. See Koffman v. Leichtfuss, 246 Wis.2d 31, 630 N.W.2d 201, 211 (2001). In effect, the collateral source rule addresses the relationship between the injured party and the tortfeasor, and subrogation focuses more on the relationship between the injured party/insured and the insurer, with the subrogee obtaining the rights of the injured party against the tortfeasor to the extent of its payments.

The existence of collateral source payments to the injured party is irrelevant to the issue of “the amount of damages the plaintiff has incurred and is entitled to recover from the wrongdoer in the civil action, nor does it matter that the source of the collateral source benefits may be entitled to reimbursement from the recovery because of contractual or statutory subrogation rights.” O’Bryan, 892 S.W.2d at 576. Similarly, any agreements concerning subrogation rights between the insured and insurer are of no consequence or concern of the tortfeasor except to avoid his subjection to double recovery exceeding the amount of tort damages. See, e.g., Beaird v. Brown, 58 Ill.App.3d 18, 15 Ill. Dec. 583, 373 N.E.2d 1055, 1058, (1978); Dippel v. Hunt, 517 P.2d 444, 448 (Okla.Ct.App.1973); Southard v. Lira, 212 Kan. 763, 512 P.2d 409, 414 (1973).

Farm Bureau contends that the collateral source rule does not apply to UIM coverage. It asserts that unlike certain other types of collateral sources, such as health and disability insurance, that are payable regardless of fault, UIM benefits are payable only upon a determination of fault by a tortfeasor and evaluation of damages by an adjustor, mediator, or jury. Farm Bureau argues that the failure to impose an immediate obligation for payment of benefits under UIM coverage precludes their characterization as collateral source benefits.

While it is a matter of first impression in Kentucky, the majority of courts in other states have held that UIM payments fall within the collateral source rule. See Voge v. Anderson, 181 Wis.2d 726, 512 N.W.2d 749, 751 (1994); Johnson by Johnson v. General Motors Corp., 190 W.Va. 236, 438 S.E.2d 28, 35 (1993); Hernandez v. Gisonni, 657 So.2d 33, 35 (Fla.Dist.Ct.App.1995); Estate of Rattenni v. Grainger, 298 S.C. 276, 379 S.E.2d 890 (1989); Peele v. Gillespie, 658 N.E.2d 954, 958 (Ind.Ct.App.1995). But see Fertitta v. Allstate Ins. Co., 462 So.2d 159, 164 (La.1985).

The main requirement for qualification as a collateral source under the collateral source rule is that the source be “wholly independent” of the wrongdoer. See In re W.B. Easton Constr. Co., Inc., 320 S.C. 90, 463 S.E.2d 317, 318 (1995). “A source is wholly independent and therefore collateral when the wrongdoer has not contributed to it and when payments to the injured party were not made on behalf of the wrongdoer.” Pustaver v. Gooden, 350 S.C. 409, 566 S.E.2d 199, 201 (App.2002). In Estate of Rattenni, the court stated, “[w]e find no persuasive reason to distinguish underinsurance proceeds from other insurance proceeds that are subject to the collateral source rule.” 379 S.E.2d at 890.

The view that UIM payments are “wholly independent” of the wrongdoer is consistent with the nature of UIM coverage reflected in Kentucky case law. Kentucky courts have recognized that UIM coverage is contractual, which is separate and distinct from the tortfeasor’s liability. See, e.g., Philadelphia Indem. Ins. Co. v. Morns, 990 S.W.2d 621, 625 (Ky.1999); Nationwide Mut. Ins. Co. v. Hatfield, 122 S.W.3d 36, 40 (Ky.2003). In the Coots case the Kentucky Supreme Court stated:

The UIM insurer is a primary obligor for the UIM insured’s loss by contractual obligation just as the tortfeasor is a primary obligor by reason of his tort obligation. Insofar as its UIM obligation is concerned, as we have stated in Part I of this Opinion, the existence of the tortfeasor, and the amount of damages caused by the tortfeasor, and the tortfeasor’s insurance or lack thereof, are only relevant to measure the loss under the policy.

853 S.W.2d at 902.

The fact that UIM coverage is based on fault does not preclude its characterization as a collateral source but is merely an aspect of its contractual terms. UIM coverage is, like uninsured motorist (UM) coverage, “first party coverage, which means that it is a contractual obligation directly to the insured[.]” Id. at 898. (Emphasis in original.) But the fact that the insurer’s liability is tied to the fault of the tortfeasor does not make the tortfeasor a party to the insurance contract. Id.

Recognizing UIM payments as a collateral source within the collateral source rule is consistent with the purposes of the rule. While UIM coverage must be offered to policyholders, it is optional and involves a separate additional payment premium. Allowing tortfeasors a credit or setoff for UIM payments would provide an unintended benefit to the tortfeasor and relieve him of some responsibility for his actions, while depriving the injured party/insured of the benefit of his payments of premiums for the insurance. In Burke Enterprises, Inc. v. Mitchell, 700 S.W.2d 789 (Ky.1985), the court said:

It is well settled that a tortfeasor is not entitled to any credit against what he owes for payments of medical expenses or disability benefits paid by a collateral source to the tort victim pursuant to a contractual obligation owed to the victim from the collateral source, whether it be first party insurance coverage, employment benefits, or otherwise. [Emphasis in original.]

Id. at 796. Thus, we agree with the majority view that UIM payments fall within the collateral source rule.

In addition to the collateral source argument, Farm Bureau contends that KRS 304.39-320 entitles Hasty to a credit or setoff for the UIM payments by State Farm and Progressive against the jury verdict and that this statute controls over the more general common law collateral source rule. The trial court relied upon, and Farm Bureau cites to, the provision in KRS 304.39-320 which describes UIM coverage as coverage for “such uncompensated damages as [the insured] may recover on account of injury due to a motor vehicle accident because the judgment recovered against the owner of the other vehicle exceeds the liability policy limits thereon, to the extent of the underinsurance policy limits on the vehicle of the party recovering.” KRS 304.39-320(2). The trial court viewed the statute and UIM coverage as a means for an injured party to obtain more complete recovery of any damages sustained because of a motor vehicle accident. It relied especially on the word “uncompensated” in concluding that “[n]othing therein indicates an intent to allow an injured party double recovery.”

KRS 304.39-320 was intended to define the relationship and obligations between the injured insured and the underinsured motorist carrier as compared with the tort-feasor’s liability coverage and the injured insured’s total damages. The statute does not explicitly provide credits or setoffs against the tortfeasor’s liability for the injured party’s damages. In this context, the word “uncompensated” necessarily refers to the amount of damages suffered by the injured party that are not compensated by the tortfeasor’s liability coverage. The trial court’s attempt to include UIM benefits as compensation credited against the tortfeasor’s liability represents an unwarranted extension beyond the purpose and language of the statute. Moreover, such an interpretation is flawed in that it deducts the amount of UIM payments as compensated damages in deriving the amount of UIM benefits payable to the insured in the first instance. In other words, the amount of uncompensated damages must be determined before determining the amount of UIM benefits due the insured.

The statute simply does not address how UIM payments affect the tortfeasor’s liability other than the recognition that the UIM insurer may have subrogation rights in a portion of the amount of damages due. If the legislature wanted to provide a credit benefiting the tortfeasor against the total damages, we conclude it would have done so with more direct, precise language.

Even if KRS 304.39-320 explicitly or, as the court suggested, by implication provided for a credit against the underinsured motorist’s liability, such a provision would be subject to constitutional challenges. The collateral source rule has two aspects: evidentiary and substantive. See McCormack Baron & Associates v. Trudeaux, 885 S.W.2d 708, 710-11 (Ky.App.1994). The substantive aspect concerns the above-discussed statement of the rule that damages are not reduced by the amount of collateral benefits received by the plaintiff. Given this substantive aspect, an evidentiary consequence developed that prohibited the admission of evidence of collateral benefits as being irrelevant and immaterial. Id.

In 1988 the legislature in Kentucky enacted KRS 411.188 as part of the omnibus tort reform legislation. See Ohio Cas. Ins. Co. v. Ruschell, 834 S.W.2d 166, 170 (Ky.1992). That statute authorized the admission of evidence concerning collateral source payments, the value of any premiums paid by or on behalf of the plaintiff, and known subrogation rights in any civil trial. In the O’Bryan case the Kentucky Supreme Court held KRS 411.188(3) unconstitutional as violating the separation of powers doctrine. 892 S.W.2d at 578.

While KRS 411.188 directly addressed only the evidentiary aspect of the collateral source rule, the court recognized its inevitable impact on the substantive aspect of the rule as well. The court indicated that the substantive impact of the statute would violate Section 54 of the Kentucky Constitution, which prohibits legislative encroachment on compensatory damages due tort victims. Id. The court noted that plaintiffs’ right to recover against wrongdoers for personal injuries was long-standing and constitutionally protected by the “jural rights” doctrine. Id. The court further stated:

A substantive law change denying damages for medical expenses and wage loss in a civil action to those plaintiffs who have access to collateral source benefits would violate Section 54. Those plaintiffs receiving collateral source payments cannot have their tort remedy denied as punishment for their prudence in obtaining insurance coverage to assist them in the event of a catastrophe, and their misfortune compounded by making them appear to seek damages for which they have no need.

Id.

This analysis recognizes the fundamental difference between the tort damages recoverable from a wrongdoer and the collateral benefits recovered by an insured on an insurance contract. In short, a diminution of tort damages based on receipt of collateral ' source benefits would violate Section 54 of the Kentucky Constitution. Consequently, the trial court’s interpretation of KRS 304.39-320 as authorizing a credit or setoff of UIM payments received by Schwartz against the damages recoverable from Hasty would violate the Kentucky Constitution.

Progressive has asserted its subrogation rights with respect to the $25,000 in UIM benefits it has paid Schwartz. However, there has been no resolution of its claim due to procedural issues. Hasty is not entitled to a credit or setoff against the jury verdict for this amount, but he has an interest in not being required to pay both Schwartz and Progressive in an amount exceeding the jury verdict. Moreover, as subrogee, Progressive stands in the shoes of Schwartz and should receive the amount of its payments in place of Schwartz, the subrogor. As a result, should Progressive be determined to have valid subrogation rights, any judgment should reflect an award to it commensurate with its subro-gation rights, thereby lessening the award to Schwartz. This is a matter of distribution of the jury verdict, rather than decreasing the damages amount.

On the other hand, the record indicates that State Farm has waived its subrogation rights and has been dismissed from the action. As we noted earlier, any agreement between Schwartz and State Farm is irrelevant to the obligation of Hasty to pay the full amount of the damages. Consistent with the collateral source rule, Hasty is not entitled to a credit or reduction in the judgment for the $78,614.27 paid to Schwartz by State Farm, even though it may result in a double recovery by Schwartz.

The order of the Garrard Circuit Court is reversed and remanded for further proceedings consistent with this opinion.

ALL CONCUR.

      . The trial court indefinitely postponed setting a trial date on Schwartz's bad faith settlement claim against Farm Bureau.

      . These amounts represented the amount of the judgment exceeding $100,000, including costs and interest.

      .State Farm had earlier been dismissed from the case following its payment of $78,614.27 to Schwartz. It apparently agreed not to exercise its subrogation rights.

      . Kentucky Revised Statutes.


author: BARBER, Judge.

text:
    ROGERS GROUP, INC., and Holloway & Son Construction Co., Inc., Appellants, v. Gary MASTERSON; Roszelle Moore; Ann Wilson; Gene Snawder; Clara Toles; Dan Gibson; June Fields; Concerned Citizens United, Inc.; City of West Point; West Point City Council; West Point Planning & Zoning Commission; West Point Board of Zoning Adjustments; and Hardin Circuit Court, Hon. T. Steven Bland, Judge, Appellees. City of West Point; West Point City Council; West Point Planning & Zoning Commission; and West Point Board of Adjustments, Appellants, v. Gary Masterson; Roszelle Moore; Ann Wilson; Gene Snawder; Clara Toles; Dan Gibson; June Fields; Concerned Citizens United Inc.; Rogers Group, Inc.; Holloway & Son Construction, Inc.; and Hardin Circuit Court, Hon. T. Steven Bland, Judge, Appellees.
    Nos. 2004-CA-000341-MR, 2004-CA-000483-MR.
    Court of Appeals of Kentucky.
    April 29, 2005.
    Discretionary Review Denied by Supreme Court Nov. 16, 2005.

      David Pike, F. Keith Brown, Shepherds-ville, KY for appellants, Rogers Group, Inc. and Holloway and Son Construction Co., Inc.
    Thomas E. Cooper, Elizabethtown, KY, for appellants, City of West Point, West Point City Council, West Point Planning & Zoning Commission, and West Point Board of Adjustments.
    W. Henry Graddy, IV, Midway, KY, for appellees, Gary Masterson, Roszelle Moore, Ann Wilson, Gene Snawder, Clara Toles, Dan Gibson, June Fields, Concerned Citizens United, Inc., Rogers Group, Inc., Holloway & Son Construction, Inc., and Hardin Circuit Court, Hon. T. Steven Bland, Judge.
    Before BARBER and VANMETER, Judges; and HUDDLESTON, Senior Judge.

      . Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

   OPINION

BARBER, Judge.

The Hardin Circuit Court determined that a previous judgment entered by another judge of that circuit was void; being violative of the prohibition against illegal judicial rezoning, thus, it set aside the judgment. We affirm.

This litigation has a long history. The story began when the Fort Knox Military Reservation deeded some surplus land to the City of West Point. The City of West Point then transferred the land to a private owner and reserved for itself 17 acres of land to be deeded to the City of West Point in the future. The land was then conveyed to Holloway & Son Construction Co., Inc. (Holloway). In 1996 Rogers Group, Inc. (Rogers), a multi-state rock quarry company, became interested in the land because of a supposedly marketable seam of limestone located on the property. In February 1997 Rogers and Holloway filed for a conditional use permit to mine the limestone.

Apparently the application process for the conditional use permit broke down and Rogers and Holloway filed a declaratory judgment action in Hardin Circuit Court challenging the constitutionality of the City of West Point’s zoning system. Circuit Case Number 97-CI-00904 was filed by Rogers and Holloway against the City of West Point, West Point City Council, West Point Planning & Zoning Commission, and West Point Board of Zoning Adjustments — the same parties as the appel-lees in Case No. 2004-CA-000341-MR and the appellants in Case No. 2004-CA-000483-MR (hereafter collectively referred to as West Point). West Point counterclaimed against Rogers and Holloway for the 17 acres it alleges is reserved in the deed.

The case progressed and a trial by deposition was conducted, but before the court issued a decision the parties reached an agreement to settle the case and presented that settlement to the court in the form of an agreed judgment. The court entered the judgment as its own on June 15, 1999.

On June 25,1999 Gary Masterson, Rosz-elle Moore, Ann Wilson, Gene Snawder, Clara Toles, Dan Gibson, June Fields, and Concerned Citizens United, Inc. (collectively referred to as Concerned Citizens) filed a motion to intervene as parties in 97-CI-00904. The court denied the motion generating the first appeal to this Court. This Court upheld the circuit court’s ruling and the Kentucky Supreme Court denied discretionary review.

Concerned Citizens continued to pursue having the judgment in 97-CI-00904 invalidated by filing a separate lawsuit (Circuit Case Number 99-CI-01242) against West Point charging that there were violations of the Open Meetings Act in its vote to approve the settlement reached in 97-CI-00904. The Hardin Circuit Court dismissed the action generating a second appeal to this Court. Again this Court upheld the circuit court’s ruling and the Kentucky Supreme Court denied discretionary review.

Five months after the Supreme Court denied discretionary review in 97-CI-00904 and four months after discretionary review was denied in 99-CI-01242, Concerned Citizens instituted an independent action. That action, filed pursuant to CR 60.03, sought to have the judgment in 97-CI-00904 set aside on the ground that it constituted illegal judicial rezoning. That case, Circuit Case Number 02-CI-01627 is the subject of the current appeals before this Court.

The circuit court determined that the judgment entered in 97-CI-00904 did constitute illegal judicial rezoning and ordered that the judgment be set aside as void. In Case No. 2004-CA-000341-MR, Rogers and Holloway challenge the circuit court’s order setting aside the judgment in 97-CI-00904. In Case No. 2004-CA-000483-MR, West Point asks that this Court reinstate those portions of the judgment in 97-CI-00904 that provided that Rogers and Holloway would deed the 17 acres back to West Point.

We shall deal with the issues raised in Case No. 2004-CA-000341-MR first. In that appeal Rogers and Holloway make several arguments for why the circuit court’s judgment setting aside the agreed judgment in 97-CI-00904 should be reversed. West Point agrees with Rogers and Holloway at least to the extent that it wishes the agreed judgment to be reinstated or the 17 acres to be conveyed to it.

In their first two arguments Rogers and Holloway contend that the agreed judgment in 97-CI-00904 was not illegal judicial rezoning as found by the circuit court. It argues that the agreed judgment, rather than being illegal judicial rezoning, is simply protection from an illegal zoning system. They state that other courts have recognized this difference. Concerned Citizens contends that the agreed judgment did constitute illegal judicial rezoning.

Kentucky case law makes clear that the judicial system is not to be substituted for decisions more appropriately made by a legislative body. American Beauty Homes Corp. v. Louisville and Jefferson County Planning and Zoning Comm’n, 379 S.W.2d 450, 455 (Ky.1964). Rezoning a piece of property is not a judicial function. City of Louisville v. McDonald, 470 S.W.2d 173, 178 (Ky.1971). Even where a court has the authority to find that an action by the legislative body is arbitrary, it does not have the authority to order a particular classification be applied to the property. McKinstry v. Wells, 548 S.W.2d 169, 174 (Ky.App.1977).

An examination of the agreed judgment at issue here clearly shows that the court was engaging in judicial rezoning. The agreed judgment is lengthy and a number of its provisions offend the principles cited in the cases above. For example, the agreed judgment provides that Rogers’ and Holloway’s ability to make use of the land is governed solely by the agreed judgment and not by ordinances that have or may be adopted pursuant to KRS Chapter 100. It also provides that Rogers and Holloway may operate a rock quarry on the property with details of what that constitutes. Further, the judgment is not only binding on Rogers, Holloway, and West Point, but also their successors and assigns. In essence, the court zoned the property at issue.

Rogers, Holloway, and West Point include in their arguments that one of the motivations for the agreed judgment was a concern that West Point’s zoning system would be found invalid pursuant to Hardin County v. Jost, 897 S.W.2d 592 (Ky.App.1995). There Hardin County’s zoning system was struck down in its entirety because its plan allowed for only two land uses — residential and agricultural. Any other use had to be gained through a conditional use permit. Id. at 593. The problems with the system were numerous, but at its core, Hardin County’s zoning system was no system because it allowed only ad hoc zoning. There was no plan within which zoning could be developed, thus, the laws with respect to zoning were not of general application. Id. at 595.

In the agreed judgment West Point acknowledges that its system would likely be found unconstitutional for these same reasons. Whether this will ultimately be found by the court is unknown, but even were the zoning system found to be invalid, it does not follow that Rogers and Holloway may make any use of the property it sees fit. If the system were unconstitutional, then West Point would obviously have to adopt a new comprehensive plan and zoning rules. There is no reason to believe that the property in dispute would not be subject to those ordinances.

The contention by Rogers and Holloway that other case law has recognized the distinction between protection from an illegal zoning system and illegal judicial rezoning is not supported by their references. Further, those authorities are not persuasive. For instance, in Schwartz v. City of Flint, 426 Mich. 295, 395 N.W.2d 678 (1986) the Court engaged in a long discussion about its own standards of review on zoning issues and ultimately determined it had been employing an incorrect standard. The opinion is truly specific to Michigan law and we do not see that it provides insight to the situation presented in this case especially since Kentucky law on the subject is quite clear. We would note that even in Schwartz the Court acknowledged that courts should not perform the legislative function of zoning and that it is generally beyond the judicial power to determine what restrictions are applicable to a particular piece of property. Id. 426 Mich. at 308-309, 395 N.W.2d at 683.

Likewise, City of Louisville v. Kavanaugh, 495 S.W.2d 502 (Ky.1973) is distinguishable. In that case the Court clearly stated that it is not the role of the judiciary to conduct de novo determinations about the zoning applicable to a piece of property. Id. at 505. Although the circuit court in Kavanaugh had directed the property be classified in a particular zoning category, Kentucky’s highest court found that this did not violate the rule against judicial rezoning because the court had not made a de novo determination. It had merely ordered that the classification required by the record be applied. Id. at 506.

In the instant case there is no dispute that West Point had no zoning classification that would have allowed the operation of a rock quarry. Thus, the agreed judgment created the zone in contravention of the rule against judicial rezoning, and it applied it only to Rogers and Holloway. The contention by Rogers and Holloway that this action by the circuit court represents only a fraction of the court’s power is not in line with the case law that requires planning and zoning to be applicable throughout the community. Hardin County v. Jost, supra.

Rogers and Holloway next contend that Concerned Citizens did not file its independent action under CR 60.03 in a timely manner. CR 60.03 provides:

Rule 60.02 shall not limit the power of any court to entertain an independent action to relieve a person from a judgment, order or proceeding on appropriate equitable grounds. Relief shall not be granted in an independent action if the ground of relief sought has been denied in a proceeding by motion under Rule 60.02, or would be barred because not brought in time under the provisions of that rule.

By its terms, CR 60.03 is to be read in conjunction with CR 60.02 and the case law so recognizes. Huffaker v. Twyford, 445 S.W.2d 124, 125 (Ky.1969).

In this case Concerned Citizens sought to set aside the agreed judgment in 97-CI-00904 on the ground that the court’s action was beyond its authority. Concerned Citizens argues that the judgment itself is void. Under CR 60.02 a judgment attacked by motion on the ground that it is void is not required to be filed within a specific time. Engle v. City of Louisville, 262 S.W.2d 371, 373 (Ky.1953). The only requirement is that the action be filed within a reasonable time, Foremost Ins. Co. v. Whitaker, 892 S.W.2d 607, 610 (Ky.App.1995), and even this proposition is debatable since a void judgment does not acquire validity with the passage of time. 11 Wright & Miller, Fed. Prac. & Proc. Civ.2d § 2862.

Here Rogers and Holloway point to KRS 100.347 and its requirement that an appeal from a planning and zoning decision is required to be prosecuted within 30 days. Rogers and Holloway argue either that Concerned Citizens should be held to the 30-day requirement or that it at least provides a good indication of what the legislature considers to be a reasonable time. Rogers and Holloway also complain that Concerned Citizens waited over three years after the agreed judgment was entered and several months after the Supreme Court denied discretionary review in the prior two appeals to file its action under CR 60.03 and this is simply too long.

The circuit court heard these arguments and determined that Concerned Citizens had filed within a reasonable time. The standard of review is whether the circuit court abused its discretion when it made that determination. Fortney v. Mahan, 302 S.W.2d 842, 843 (Ky.1957); Schott v. Citizens Fidelity Bank and Trust Co., 692 S.W.2d 810, 814 (Ky.App.1985). We do not believe any abuse of discretion occurred. It is clear that Concerned Citizens has been challenging the agreed judgment in one way or another since it was entered, and the circuit court found that Rogers, Holloway, and West Point have not been misled by any delay.

Rogers and Holloway next argue that Concerned Citizens should have brought this action at the same time that it brought 99-CI-01242. That action challenged West Point’s process of approving the agreed judgment prior to its entry as being violative of the Open Meetings Act. While it is true that there is generally opposition to piecemeal litigation, the policy reasons behind that are to prevent a defendant from being repeatedly hauled into court over the same or similar issues by the same person or persons. In this case the parties have never really been out of court. Further, even if we said the case suffered from this defect since the agreed judgment is void, other, different citizens or property owners of West Point could file suit and the same result would occur.

Rogers’ and Holloway’s next argument is that Concerned Citizens does not have standing to maintain an independent action. Rogers and Holloway contend that because Concerned Citizens did not file this action based on KRS Chapter 100 it must find standing outside the statute in the common law. Under common law in order to challenge a public entity’s action one must show some particular harm beyond that sustained by the public generally-

While this is an interesting argument it must fail. As this Court has recognized, even before the adoption of KRS Chapter 100 and specifically KRS 100.347(2) which confers standing on a wide basis, Kentucky courts have allowed a broader class of persons or entities to maintain suit on zoning issues. 21st Cent. Dev. Co., LLC v. Watts, 958 S.W.2d 25, 28 (Ky.App.1997). Under the principles stated in Watts, Concerned Citizens clearly has standing.

Finally, Rogers and Holloway argue that since Concerned Citizens was never a party to the original case, 97-CI-00904, it cannot file an independent action under CR 60.03. There is no merit to this argument. The language of the Rule itself makes clear that it provides an avenue for anyone to attack a judgment.

We turn now to Case No. 2004-CA-000483-MR in which West Point argues that even if this Court upholds the circuit court’s decision to set aside the agreed judgment in 97-CI-00904, we should also rule that West Point should still receive its 17 acres as set forth in that agreed judgment. The only argument that West Point makes in support of this result is that none of the parties have objected to it receiving the 17 acres and so it would like to put an end to this part of the litigation.

Despite West Point’s representation, Rogers and Holloway did respond that there is an issue about the 17 acres of property. In defense of the counter-claim by West Point in 97-CI-00904 Rogers and Holloway filed an answer disputing West Point’s right to the acreage. There, and in their brief to this Court, Rogers and Holloway state that the reservation was void because it was an agreement to agree and contained an inadequate description of the property.

The circuit court found that the agreed judgment’s provisions giving West Point the acreage and settling the zoning issues were tied together. Thus, it would be inequitable to set aside only part of the agreed judgment. We agree, especially since it appears that if not for the agreed judgment there would exist a dispute between the parties about whether West Point is entitled to the property at all.

The judgment of the Hardin Circuit Court is affirmed and the case is remanded for further proceedings.

ALL CONCUR.