author: Justice COOPER. Justice SCOTT Justice ROACH. Justice WINTERSHEIMER.

text:
    Louis ROBERTSON, Appellant v. COMMONWEALTH of Kentucky, Appellee.
    No. 2003-SC-0948-DG.
    Supreme Court of Kentucky.
    Nov. 23, 2005.
    Christopher N. Lasch, Goodwin & Lasch, PSC, Louisville, Counsel for Appellant.
    Gregory D. Stumbo, Attorney General, Todd D. Ferguson, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.
   Opinion of the Court by

Justice COOPER.

In 1997, Appellant, Louis Robertson, was convicted by a Nelson Circuit Court jury of five counts of sodomy in the first degree and five counts of sexual abuse in the first degree and sentenced to 100 years in prison. We affirmed his convictions and sentences by an opinion rendered on February 11,1999.

Appellant claims that on February 5, 2002, while incarcerated in the Eastern Kentucky Correctional Complex (EKCC), he delivered a properly prepared and addressed pro se RCr 11.42 motion to vacate, set aside or correct his sentence, along with other related motions, to the EKCC legal mail clerk for mailing. In support of this claim, he has filed a copy of what purports to be the EKCC “Legal Mail Log Record” for that date, which reflects two items of mail received from Appellant, one addressed to the Commonwealth’s Attorney for the Tenth Judicial Circuit (which includes the Nelson Circuit Court) and the other addressed to the Nelson Circuit Court clerk. However, the RCr 11.42 motion was not “filed” in the office of the Nelson Circuit Court clerk until February 25, 2002, twenty days after Appellant claims to have delivered it to the prison legal mail clerk and fourteen days after the expiration of the three-year period of limitation for filing such a motion. RCr 11.42(10). The Nelson Circuit Court dismissed the motion as untimely filed, and the Court of Appeals affirmed. We now reverse and remand to the Nelson Circuit Court for an evidentiary hearing to determine whether-the three-year period of limitation was equitably tolled in this case. Criminal Rule (RCr) 11.42(10) provides:

Any motion under this rule shall be filed within three years after the judgment becomes final, unless the motion alleges and the movant proves either:
(a) that the facts upon which the claim is predicated were unknown to the movant and could not have been ascertained by the exercise of due diligence; or
(b) that the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively.

(Emphasis added.)

Both the Nelson Circuit Court and the Court of Appeals correctly concluded that the “shall be filed” requirement was mandatory and that neither had authority to sua sponte adopt a so-called “prison mailbox rule.” In Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), the United States Supreme Court adopted such a rulé for the filing of a notice of appeal by a pro se prisoner. In that case, the prisoner had deposited a notice of appeal with prison authorities for mailing to the court on the twenty-seventh day after entry of judgment denying his petition for a writ of habeas corpus; but the clerk did not receive and file the notice until the thirty-first day, one day after the period of limitation had expired. Fed. R.App. P. 4(a)(1). The Court held that the notice of appeal was “filed” when the prisoner deposited it with prison authorities for mailing. Houston, 487 U.S. at 270-71, 108 S.Ct. at 2382 (noting that “[s]uch prisoners cannot take the steps other litigants can take to monitor the processing of their notices of appeal and to ensure that the court clerk receives and stamps their notices of appeal before the 30-day deadline”). Appellant urges us to adopt the Houston “prison mailbox rule” for the filing of pleadings by pro se prisoners in Kentucky courts.

Appellant’s request is not meritless in this case, especially since RCr 11.42(10) does not specify how or where the motion “shall be filed” (though RCr 11.42(1) provides that a prisoner may “proceed directly by motion in the court that imposed the sentence”). Other rules, however, do specify where pleadings must be filed, e.g., CR 73.01(2) (“appeals shall be taken to the next higher court by filing a notice of appeal in the court from which the appeal is taken”). We are reluctant to carte blanche amend our rules without following the formal procedures established for such amendments. CR 87. Furthermore, a blanket adoption of a “prison mailbox rule” could be construed as an attempt to also amend, sua sponte, statutes of limitation adopted by the General Assembly. See, e.g., KRS 13B.140(1) (“A party shall institute an appeal by filing a petition in the Circuit Court of venue, as provided in the agency’s enabling statutes, within thirty (30) days ....”); KRS 24A.120(2) (“Such adversary proceeding shall be filed in Circuit Court ....”); KRS 61.120(2) (“Provided, however, that the notice of appeal and order appealed from shall be filed with the clerk of the Court of Appeals within thirty (30) days ....”); KRS 351.194(8) (“An appeal of an order of the commission shall be filed in the Franklin Circuit Court within thirty (30) days ....”); KRS 419.130(1) (“Any party to a hearing on a writ [of habeas corpus] may appeal to the Court of Appeals by filing with the clerk of the court, within thirty (30) days .... ”).

Perceiving the possibility of unforeseen mischief fostered by otherwise good intentions, we decline to adopt the fiction that “filing” means delivery to prison authorities. As suggested by the dissenters in Houston, we might next be called upon to determine whether a person living abroad can “file” a necessary pleading by delivering it to a United States consul, or whether a soldier in a war zone can do so by delivering it to his or her commanding officer. Houston, 487 U.S. at 277, 108 S.Ct. at 2385 (Scalia, J., dissenting).

For similar reasons, the Supreme Court of Wisconsin declined to adopt a “prison mailbox rule.” State ex rel. Nichols v. Litscher, 247 Wis.2d 1013, 635 N.W.2d 292, 295 (2001) (‘We decline to interpret the term ‘file’ in § 808.10 and § 809.62(1) to mean ‘deposit in a prison mailbox.’ ”). However, like the majority in Houston, that court recognized that pro se prisoners are without options when it comes to “filing” petitions.

When pro se prisoners seek to file petitions, their control over the filing process is circumscribed by prison rules and procedures. Pro se prisoners’ choice in method of filing is no choice at all. They must rely on the “vagaries of the mail.” Other petitioners may personally deliver their petitions to the clerk of court’s office, even at the last possible moment. We discern no convincing reason why pro se prisoners who act more promptly and otherwise comply with filing requirements should be placed at a disadvantage.

Id. at 299. Nichols held that if the pro se petitioner has otherwise complied with all of the requisites for filing a petition, the deadline for such filing is tolled on the date the prisoner delivers the correctly addressed petition to the proper prison authorities for mailing. Id. at 298-99.

The Nichols remedy is similar to the equitable tolling remedy fashioned by most federal circuit courts of appeal to grant relief to deserving pro se prisoners from the one-year period of limitation imposed by 28 U.S.C. § 2255 for fifing a petition for a writ of habeas corpus. Similar to RCr 11.42(10), that section provides in pertinent part:

A 1-year period of limitation shall apply to a motion under this section.
The limitation period shall run from the latest of -
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by government action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, ... and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255.

In Dunlap v. United States, 250 F.3d 1001 (6th Cir.2001), the United States Court of Appeals for the Sixth Circuit adopted for equitable tolling purposes in habeas cases the same five-factor test it had approved for employment discrimination cases in Andrews v. Orr, 851 F.2d 146, 151 (6th Cir.1988):(1) the petitioner’s lack of notice of the filing requirement; (2) the petitioner’s lack of constructive knowledge of the filing requirement; (3) diligence in pursuing one’s rights; (4) absence of prejudice to the respondent; and (5) the petitioner’s reasonableness in remaining ignorant of the legal requirement for filing his claim. Dunlap, 250 F.3d at 1008-09.

Considering the similarities between 28 U.S.C. § 2255 and RCr 11.42(10), and the fact that the denial of a motion under RCr 11.42 often results in the filing of a habeas petition within the jurisdiction of the Sixth Circuit, we now adopt the Dunlap test for determining whether equitable tolling is applicable to an otherwise limitation-barred RCr 11.42 motion. Dunlap factors one, two, and five are essentially incorporated within RCr 11.42(10)(a). Thus, the primary considerations adopted from Dunlap are factors three (diligence) and four (prejudice).

Appellant does not claim ignorance of the legal requirements for filing his RCr 11.42 motion. Thus, Dunlap factors one, two, and five and RCr 11.42(10)(a) do not apply to his late motion. If, indeed, Appellant delivered a properly prepared and properly addressed motion to the appropriate prison authorities prior to the expiration of the three-year limitation period, then he did “all that could reasonably be expected to get the [motion] to its destination within the required [time limit],” Fallen v. United States, 378 U.S. 139, 144, 84 S.Ct. 1689, 1692-93, 12 L.Ed.2d 760 (1964), superseded by rule amendment as stated in Carlisle v. United States, 517 U.S. 416, 424, 116 S.Ct. 1460, 1465, 134 L.Ed.2d 613 (1996), and, thus, satisfied Dunlap factor three (diligence). Dunlap factor four (prejudice) ordinarily would not militate against equitable tolling under these circumstances, because there would seem to be no more prejudice to the Commonwealth to permit Appellant to proceed with his motion than if the motion had actually been received and filed by the Nelson Circuit Clerk on or before February 11, 2002. However, the appropriate forum for finding facts militating for or against equitable tolling is the circuit court; and the Nelson Circuit Court has never held an evidentia-ry hearing on the issue of whether Appellant actually delivered a properly prepared and addressed RCr 11.42 motion to the appropriate EKCC prison authorities for mailing prior to the expiration of the limitation period.

Accordingly, we reverse the Court of Appeals and remand this case to the Nelson Circuit Court for an evidentiary hearing on the issue of equitable tolling and any other necessary proceedings not inconsistent with the content of this opinion.

LAMBERT, C.J.; GRAVES, and JOHNSTONE, JJ., concur.

SCOTT, J., concurs in part and dissents in part by separate opinion.

ROACH, J., dissents by separate opinion.

WINTERSHEIMER, J., dissents by separate opinion.

Opinion by

Justice SCOTT

Concurring in Part and Dissenting in Part.

I concur in that this court has at least adopted “an equitable tolling” rule, which may provide relief to prisoners when they have done “all that could reasonably be expected to get the [motion] to its destination within the required [time limit].”

I dissent because the majority has timidly strolled off into the night in the joyful company of a dissenting position in Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) — the majority in which, adopted what is now called the “prison mailbox rule,” a more practical rule that simply relies on the “prison mail logs” to determine if a court document was given to the prison authorities prior to the limitations deadline.

The Supreme Court [has] held that [a] notice of appeal was timely filed “at the time petitioner delivered it to the prison authorities for forwarding to the court clerk,” Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), in part because “the moment at which pro se prisoners necessarily lose control over and contact with their notices of appeal is at delivery to prison authorities, not receipt by the clerk.” Id. at 275, 108 S.Ct. at 2384. The Ninth Circuit has held that this “mailbox rule” also applies in determining when an application for state postconviction review is “properly filed” for purposes of tolling the AEDPA’s limitations period. Anthony v. Cambra, 236 F.3d 568 (9th Cir.2000); Saffold v. Newland, 224 F.3d 1087 (9th Cir.2000); 28 U.S.C. § 2244(d)(2). The Sixth Circuit has recently determined that the Houston v. Lack “mailbox rule” applies also to civil complaints filed in federal district court by pro se prisoners. Richard v. Ray, 290 F.3d 810 (6th Cir.2002).

It appears that the majority of state courts that have considered the issue have permitted pleadings of pro se prisoners to be deemed filed at the time they are deposited in the prison mail system. See Massaline v. Williams, 274 Ga. 552, 554 S.E.2d 720, 722 (2001) (citing State v. Hurt, 107 Wash.App. 816, 27 P.3d 1276, 1278 (2001); Sykes v. Mississippi, 757 So.2d 997, 1000-01 (Miss.2000); State ex rel. Egana v. Louisiana, 771 So.2d 638 (La., 2000); Taylor v. McKune, 25 Kan. App.2d 283, 962 P.2d 566, 569-70 (1998); Commonwealth v. Jones, 549 Pa. 58, 700 A.2d 423, 426 (1997); Munson v. State, 128 Idaho 639, 917 P.2d 796, 799-800 (1996); Mayer v. Arizona, 184 Ariz. 242, 908 P.2d 56,57 (App.1995); Ex parte Williams, 651 So.2d 569, 571 (Ala.1992); In re Jordan, 4 Cal.4th 116, 13 Cal.Rptr.2d 878, 840 P.2d 983, 985 (1992); Woody v. Oklahoma ex rel. Dept. of Corrections, 1992 OK 45, 833 P.2d 257, 259-60 (Okla.1992); Haag v. Florida, 591 So.2d 614, 617 (Fla.1992);Kellogg v. Journal Communications, 108 Nev. 474, 835 P.2d 12, 13-14 (1992);Commonwealth v. Hartsgrove, 407 Mass. 441, 553 N.E.2d 1299, 1301-02 (1990); See also Setala v. J.C. Penney Company, 97 Hawaii 484, 40 P.3d 886 (Haw.2002); Hickey v. Oregon State Penitentiary, 127 Or.App. 727, 874 P.2d 102 (1994) (applying Oregon law); McGill v. Indiana Dept. of Correction, 636 N.E.2d 199 (Ind.App.1994); See also State v. Parker, 986 P.2d 1118, 1120-21 (Utah App.1997) (noting, “We understand why many of our sister states have decided to adopt Houston’s interpretation of the federal rules to their own state rules of procedure,” but leaving the question for the state supreme court to decide).

At least one state has amended its procedural rules to create a “prison mailbox rule.” The Tennessee Supreme Court amended Tenn. R. Civ. P. 5.06 on July 1, 1997 to liberalize the filing rules for incarcerated pro se prisoners. From and after that date, papers prepared by or filed on behalf of an incarcerated pro se prisoner are deemed to have been filed with the trial court when they are “delivered to the appropriate individual at the correctional facility.”

In defense of adopting the “prison mailbox rule” at this time, I would note that we have a finite number of trial judges and time to handle an ever increasing docket of cases — and by depending on “equitable tolling” to solve the problem, we have created another hearing with multiple briefs and evidentiary questions prior to the trial court’s thoughtful review and ruling.

Adopting the “prison mailbox rule” would have been so much simpler for everyone.

Dissenting Opinion by

Justice ROACH.

I concur with the majority’s conclusion that RCr 11.42(10) is subject to equitable tolling. However, the majority, without any explanation, has adopted the five-factor test for equitable tolling announced in Dunlap v. United States, 250 F.3d 1001 (6th Cir.2001). In doing so, the majority has rejected the “extraordinary circumstances” test adopted by every federal court of appeals except for the Sixth Circuit. ' I believe the majority’s approach is mistaken, and I dissent from that portion of the majority opinion.

Every case I have read in this area indicates that, at the very least, equitable tolling should be available only in rare cases. This principle is curiously absent from the majority opinion, although even the Sixth Circuit, whose test the majority has indiscriminately adopted, recognizes it. See, e.g., Dunlap, 250 F.3d at 1008 (“[W]e share in Respondent’s concern that equitable tolling be applied sparingly .... ”).

In particular, I think equitable tolling should only be available when a movant can demonstrate that the untimeliness of his filing was “because of extraordinary circumstances that are both beyond his control and unavoidable even with diligence.” Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir.1999). This is the view of every federal circuit other than the Sixth Circuit. See Trenkler v. United States, 268 F.3d 16, 25 (1st Cir.2001) (“[T]he doctrine of equitable tolling is available only in rare cases where, for example, extraordinary circumstances beyond the claimant’s control prevented timely filing, or the claimant was materially misled into missing the deadline. Equitable tolling is not warranted where the claimant simply failed to exercise due diligence in preserving his legal rights. In a nutshell, equitable tolling is reserved for exceptional cases.” (citations, internal quotation marks, and internal punctuation omitted)), cert. denied, 542 U.S. 921, 124 S.Ct. 2886, 159 L.Ed.2d 779 (2004); Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.) (“Equitable tolling applies only in the rare and exceptional circumstance. In order to equitably toll the one-year period of limitations, Smith must show that extraordinary circumstances prevented him from filing his petition on time.” (citation, internal quotation marks, and internal punctuation omitted)), cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 63 (2000); Johnson v. Hendricks, 314 F.3d 159, 162 (3d Cir.2002) (“However, equitable tolling is proper only when the principles of equity would make the rigid application of a limitation period unfair. Equitable tolling is permitted if (1) the defendant has actively misled the plaintiff, (2) the plaintiff has in some extraordinary way been prevented from asserting his rights, or (3) the plaintiff has timely asserted his rights mistakenly in the wrong forum.” (citations, internal quotation marks, and internal punctuation omitted)), cert. denied, 538 U.S. 1022, 123 S.Ct. 1950, 155 L.Ed.2d 865 (2003); Rouse v. Lee, 339 F.3d 238, 246 (4th Cir.2003) (“Equitable tolling is appropriate when, but only when, extraordinary circumstances beyond the petitioner’s control prevented him from complying with the statutory time limit. Accordingly, under our existing extraordinary circumstances test, Rouse is only entitled to equitable tolling if he presents (1) extraordinary circumstances, (2) beyond his control or external to his own conduct, (3) that prevented him from filing on time.” (citations, internal quotation marks, and internal punctuation omitted)), cert. denied, 541 U.S. 905, 124 S.Ct. 1605, 158 L.Ed.2d 248 (2004); United States v. Patterson, 211 F.3d 927, 930-31 (5th Cir.2000) (“Equitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights.” (citation and internal quotation marks omitted)); United States, v. Marcello, 212 F.3d 1005, 1010 (7th Cir.) (“Extraordinary circumstances far beyond the litigant’s control must have prevented timely filing.”), cert. denied, 531 U.S. 878, 121 S.Ct. 188, 148 L.Ed.2d 130 (2000); Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir.2000) (“Equitable tolling is proper only when extraordinary circumstances beyond a prisoner’s control make it impossible to file a petition on time.”), cert. denied, 534 U.S. 863, 122 S.Ct. 145, 151 L.Ed.2d 97 (2001); Shannon v. Newland, 410 F.3d 1083, 1089-90 (9th Cir.2005) (“Equitable tolling is available only when extraordinary circumstances beyond a prisoner’s control make it impossible to file the petition on time. Extraordinary circumstances exist when wrongful conduct prevents a prisoner from filing.” (citation, internal quotation marks, and internal punctuation omitted)); Burger v. Scott, 317 F.3d 1133, 1141 (10th Cir.2003) (limiting equitable tolling to “rare and exceptional” circumstances “when an inmate diligently pursues his claims and demonstrates that the failure to timely file was caused by extraordinary circumstances beyond his control” (citation and internal quotation marks omitted)); Jones v. United States, 304 F.3d 1035, 1040 (11th Cir.2002) (“[E]q-uitable tolling is appropriate when a mov-ant untimely files because of extraordinary circumstances that are both beyond his control and unavoidable even with diligence.” (citation and internal quotation marks omitted)).

One would think that this overwhelming weight of authority would be worthy of at least some analysis by the majority. Instead, they are content to adopt the minority position of Dunlap. The majority is committed to guiding the trial court to the “right” answer. To that end, they imply the defendant is entitled to equitable tolling so long as the trial court answers in the affirmative just one factual question: whether Appellant “actually delivered a properly prepared and addressed RCr 11.42 motion to the appropriate EKKC prison authorities for mailing prior to the expiration of the limitation period.” Ante at 792. But such a simple approach belies the complexity of the analysis the trial court should undertake in applying an equitable remedy. Not' only that, it is little more than an adoption of the prison mailbox rule by another name. If the majority is correct that under Dunlap the remedy of equitable tolling can be determined by asking that single question, then it is merely further proof that the Dunlap approach is inferior to the extraordinary circumstances test.

I believe the trial court’s analysis should consist of more than the rote application of a five-factor balancing test. Equitable tolling, like most equitable remedies, requires an extraordinary intrusion into the normal judicial and administrative order and, as such, requires that the trial court engage in a more robust examination of the circumstances allegedly justifying such an intrusion before allowing it. For example, the trial court should determine why Appellant waited so late to file his petition. Was it truly beyond his control to wait to file his petition until so late in the three year period? If not, then it is likely that he is not entitled to an equitable remedy. See Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir.1999) (noting that “equity is not intended for those who sleep on their rights” and denying the remedy of equitable tolling to a defendant who inadvertently filed a petition late). Regardless of. the specific factors to be applied, however, the equitable tolling remedy should not be available whenever a defendant can show that his petition was late because of excusable neglect. See Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 458, 112 L.Ed.2d 435 (1990) (“[Tjthe principles of equitable tolling ... do not extend to what is at best a garden variety claim of excusable neglect.”).

As an extraordinary remedy, equitable tolling should be reserved for extraordinary circumstances. Therefore, I believe we should adopt the extraordinary circumstances test that has been adopted by every federal court of appeals except one and remand this matter to the trial court to determine whether Appellant’s untimely filing was because of extraordinary circumstances that were both beyond his control and unavoidable eveh with diligence. Because this Court has adopted the wrong test without a word of analysis and because it has reduced this test to a single factual question, I respectfully dissent.

Dissenting Opinion by

Justice WINTERSHEIMER.

I must respectfully dissent from the majority opinion because this Court does not have authority to amend statutes of limitations adopted by the legislature regarding all pro se filings.

Initially, Robertson was convicted of five counts of sexual abuse. He was sentenced to one hundred years in prison and his conviction was affirmed by this Court in 1999. In 2002, Robertson, pro se, mailed a motion to vacate the judgment pursuant to RCr 11.42.. Although the pleadings were mailed according to the procedures of the institution and recorded in the mail log for February 5, 2002, ,the pleadings were not marked filed by the Nelson Circuit Clerk until February 25, 2002, more than 20 days after the mail was deposited and more than three years after the conviction was final. The trial judge ruled against Robertson, holding that the three-year time limit was jurisdictional and required strict compliance. The last day to file for RCr 11.42 relief was February 11, 2002.

Robertson relies upon the so-called mailbox rule endorsed by the United States Supreme Court in Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988). The applicable federal statute in this type of situation only provides for a one-year limitation which is different from the three-year period of time allowed under RCr 11.42(10). The Kentucky rule provides three times as much time to a prisoner as the federal rule. There is really no reason to allow a pro se prisoner to circumvent clearly established rules and statutes.

Clearly, relaxation of the rules regarding statutes of limitations and the appropriate time for the submission of filings directly lead to additional delays in the judicial system. They afford no benefit to the orderly process of justice in our system. To favor a pro se prisoner over a prisoner who is represented by counsel would be obviously unfair. The dilution of reasonable rules by judicial decision is unacceptable.

Justice Antonin Scalia, joined by Chief Justice Renquist and Justices Kennedy and O’Connor, in dissent of Houston, sums up the arguments as follows:

Today’s decision obliterates the line between textual construction and textual enactment. It would be within the realm of normal judicial creativity (though in my view wrong) to interpret the phrase “filed with the clerk” to mean “mailed to the clerk,” or even “mailed to the clerk or given to a person bearing an obligation to mail to the clerk.” But interpreting it to mean “delivered to the clerk or, if you are a prisoner, delivered to your warden” is no more acceptable than any of an infinite number of variants .... Like these other examples, the Court’s rule makes a good deal of sense. I dissent only because it is not the rule we have promulgated ....

Recognizing the differences that exist between the state and federal statutes and rules, I must agree.

It is of interest to note that a rule change which would mirror the arguments of Robertson in this case was unanimously rejected by this Court in 2004. Here, Robertson was not diligent and thus should not be allowed to use the appellate process to circumvent clearly established rules. The decision could easily result in a flood of overdue and tardy motions.

      . This section was enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, Title I, § 105, 110 Stat. 1220 (1996).


source: Caselaw Access Project

author: Justice JOHNSTONE. Justice SCOTT.

license: Public Domain

text:
    KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY, Appellant v. Belinda K. RYAN, Kevin J. Kruer, and Mary Jo Lesak, Co-Executors of the Estates of Lawrence J. Kruer and Mildred L. Kruer, Appellees.
    No. 2003-SC-0944-DG.
    Supreme Court of Kentucky.
    Nov. 23, 2005.

      Michael E. Krauser, Eric S. Moser, Krauser & Brown, Louisville, Counsel for Appellant.
    Jeffrey L. Freeman, Tyler S. Thompson, Martin H. Kinney, Jr., Dolt, Thompson, Shepherd & Kinney, PSC, Louisville, Counsel for Appellees.
    Robert L. Steinmetz, W. Douglas Kem-per, Frost Brown Todd, LLC, Louisville, Counsel for Amicus Curiae, Kentucky Defense Counsel.
    A. Campbell Ewen, William P. Carrell II, Ewen, Kinney & Rosing, Louisville, Counsel for Amicus Curiae, Property Casualty Insurers Association of America.
   Opinion of the Court by

Justice JOHNSTONE.

This case stems from an automobile accident that occurred on May 21, 1998, on Interstate 64 near Shelbyville, Kentucky. Charles Ashby, traveling in the westbound lane, was attempting to pass a truck when a motorcyclist veered in front of him. Ashby lost control of his vehicle and crossed the median, colliding with an eastbound vehicle driven by Lawrence Kruer. Kruer and his wife, Mildred, were killed instantly. The motorcyclist continued westbound on 1-64 and was never identified.

Appellees, the estates of Lawrence and Mildred Kruer, settled with Ashby’s insurer for liability policy limits and thereafter instituted the instant action against Appellant, Kentucky Farm Bureau Mutual Insurance Company (hereinafter “KFB”) for underinsured motorist (UIM) coverage provided under the Kruers’ policy. In its answer, KFB maintained that the accident was caused in whole, or in part, by the actions of the motorcyclist, and that KFB was entitled to apportion fault to the unknown individual. Subsequently, the trial court permitted KFB to file a third party complaint against this “unknown motorcyclist,” who was constructively served via warning order attorney. In response to KFB’s third party complaint, Appellees amended their complaint to claim uninsured motorist (UM) coverage from KFB based on the alleged actions of the motorcyclist. KFB, in turn, argued that the motorcyclist was not an uninsured motor vehicle because the “hit and run” policy provision required physical contact between the motorcycle and the Kruers’ vehicle, which was never alleged.

The matter proceeded to a jury trial on November 26, 2001. At the close of the evidence, the trial court dismissed the UM claim against KFB, finding that there was no evidence of any physical contact between the Kruers’ vehicle and the motorcyclist. Further, over Appellees’ objection, the jury was instructed to apportion fault between Ashby and the motorcyclist. The jury returned a unanimous verdict apportioning fifty percent of the fault to Ashby and fifty percent to the motorcyclist, and awarding gross damages of $850,668 to Lawrence Kruer and $107,322 to Mildred Kruer. After reducing for apportionment and the amounts paid by Ash-by’s liability carrier, the trial court entered a judgment of $78,334 to Lawrence Kruers’ estate. Because the award to Mildred’s estate was less than the payment by Ashby’s carrier, the trial court entered a judgment dismissing Mildred’s UIM claim against KFB.

Appellees appealed the issue of apportionment, as well as the validity of KFB’s “physical contact” requirement for UM coverage. The Court of Appeals reversed the trial court’s ruling on apportionment, holding that KRS 411.182 does not permit apportionment of fault against a nominal party who is not subject to personal liability. As a result, the court did not reach the issue concerning the dismissal of the UM claim under the “physical contact” language of KFB’s policy. This Court thereafter granted KFB’s motion for discretionary review. For the reasons discussed herein, we now reverse the decision of the Court of Appeals and reinstate the judgment of the Shelby Circuit Court.

The Court of Appeals essentially decided two issues in this case. First,, it concluded that although KFB’s liability for UIM coverage is contractual in nature, the measure of that contractual liability sounds in tort law, thus implicating Kentucky’s apportionment statute, KRS 411.182. Second, it determined that KRS 411.182 does not permit apportionment against an unknown tortfeasor who, while nominally a party to the action, is neither before the court nor subject to personal liability. The court opined that the statute, while not expressly defining the term “party,” limits allocation of fault to those who actively assert claims, offensively or defensively, as parties in the litigation or who have settled by release or agreement, thus excluding constructively served parties such as the unknown motorcyclist in this case.

We do not agree with the Court of Appeals’ restrictive interpretation of the procedural nature of KRS 411.182, and, in particular, what constitutes a party subject to allocation of fault. However, we need not reach the substance of the issue because we conclude that the statute expressly does not apply to contractual claims, including those for UIM and UM coverage.

KRS 411.182, entitled Allocation of fault in tort actions, provides, in pertinent part:

(“1) In all tort actions, including products liability actions, involving fault of more than one party to the action, including third-party defendants and persons who have been released under subsection (4) of this section .... ”

(Emphasis added). By its plain language, KRS 411.182 limits itself to tort actions. An unambiguous statute is to be applied without resort to any outside aids. Delta Air Lines, Inc. v. Commonwealth, Revenue Cabinet, 689 S.W.2d 14 (Ky.1985). See also Gateway Construction Co. v. Wallbaum, 356 S.W.2d 247 (Ky.1962). This Court has repeatedly held that statutes must be given a literal interpretation unless they are ambiguous and if the words are not ambiguous, no statutory construction is required. See McCracken County Fiscal Court v. Graves, 885 S.W.2d 307 (Ky.1994); Commonwealth v. Shivley, 814 S.W.2d 572 (Ky.1991).

Despite the unambiguous language of KRS 411.182, the Court of Appeals nonetheless determined that it applies to contractual cases that “sound in tort,” such as UM and UIM claims. Further, Appellees point out that KRS 411.182 is a selective adoption of the provisions of the Uniform Comparative Fault Act (UCFA) of 1977, formulated by the Commission on Uniform State Laws. UCFA § 2(a) specifically states that the Act governs “all actions involving the fault of more than one party to the action .... ” (Emphasis added). Contrary to Appellees’ assertion, however, our legislature did not adopt § 2(a) verbatim, but rather embraced the more restrictive language “in all tort actions ... involving fault of more than one party to the action .... ” Thus, we are of the opinion that the legislature was quite clear in its intent to exclude contract actions, including those for UM and UIM coverage, from the scope of KRS 411.182. And while we certainly agree that UM and UIM actions involve aspects of tort law, in that the allocation of fault is a necessary prerequisite to coverage, our case law firmly establishes that the contractual nature of the claims is procedurally controlling.

“[A] ‘suit to recover UIM coverage is a direct action’ against the UIM carrier and ‘the [UIM] earner alone is the real party in interest Philadelphia Indemnity Insurance Co. v. Morris, 990 S.W.2d 621, 625 (Ky.1999) (quoting Coots v. Allstate Insurance Co., 853 S.W.2d 895, 903 (Ky.1993)). While a UIM insurer’s liability to its insured is fault-based to the extent the claimant has any comparative fault, there is no requirement that any other tortfeasor be named and/or served as a party in the action. In fact, Kentucky courts have refused to enforce insurance policy provisions requiring an insured to obtain a judgment or even sue the uninsured/un-derinsured motorist in order to determine liability under the contract. Puckett v. Liberty Mutual Insurance Co., 477 S.W.2d 811 (Ky.1971). As this Court has stated with regard to UM coverage, it is first party contractual insurance that “must be honored even if the tort-feasor cannot be identified.” Gordon v. Kentucky Farm Bureau Insurance Co., 914 S.W.2d 331, 332 (Ky.1995). This distinction is further illustrated by the fact that the fifteen-year statute of limitations governs the bringing of these contractual actions rather than the tort statute of limitations set out in the Motor Vehicle Reparations Act, KRS 304.39-230(6). Id.

Appellees’ action against KFB was based in contract, seeking UIM coverage for damages that exceeded the payments by Ashby’s liability carrier. This is not a tort case against Ashby because Appellees have previously released him in exchange for his insurer’s payment of policy limits. To the extent that Appellees could prove damages caused by Ashby which exceeded the policy limits paid by his insurer, they would be entitled to recover such additional damages under the UIM contract with KFB. But any payment by KFB would necessarily be made in performance of its contractual obligation to the Kruers, and neither would nor could be characterized as payment of legal damages pursuant to tort liability. Morris, supra. See also State Farm Mutual Insurance Co. v. Fireman’s Fund American Insurance Co., 550 S.W.2d 554, 557 (Ky.1977). (“[Payment made in performance of a contractual obligation is not a payment of ‘damages.’ ”)

In United States Fidelity and Guaranty Co. v. Preston, 26 S.W.3d 145 (Ky.2000), a Kentucky resident was killed in an automobile accident in Georgia involving an uninsured motorist. The estate brought suit against the uninsured motorist and a Georgia jury found the Kentucky decedent to be sixty percent at fault. Under Georgia’s modified comparative fault scheme, the estate was barred from recovery and the trial court entered a defense verdict. Nonetheless, the estate was subsequently permitted to bring an action in Kentucky against the decedent’s insurer for UM coverage and to prove damages, ultimately recovering the forty percent of those damages attributable to the Georgia tortfeasor under the UM portion of the decedent’s insurance contract. A majority of this Court distinguished the Georgia tort action from the Kentucky contract action, holding that the Georgia judgment in favor of the uninsured motorist would not be offended by the estate’s recovery of benefits under the unrelated UM insurance contract. USF & G’s liability was based upon its independent contract with the decedent which could be enforced regardless of the presence of the tortfeasor in the lawsuit. Id. at 149. See also Nationwide Mutual Insurance Co. v. Hatfield, 122 S.W.3d 36 (Ky.2003).

As a condition precedent to establishing any contractual liability on behalf of KFB, Appellees had the burden of proving damages caused by Ashby that exceeded payments they had already received from Ashby’s liability carrier. Within that context, we agree with the Court of Appeals that the UIM claim sounded in tort. Notwithstanding, KFB’s liability was purely contractual. And because the action was based in contract, it simply did not fall within the purview of KRS 411.182.

In focusing on KRS 411.182, the Court of Appeals ignored the basic concepts of Kentucky’s comparative fault approach. In Hilen v. Hays, 673 S.W.2d 713 (Ky.1984), this Court first judicially adopted pure comparative fault in place of contributory negligence, stating that “allocating liability proportionate to fault remains ‘irresistible to reason and all intelligent notions of fairness.’ ” Id. at 718. We explained:

Comparative negligence is not “no-fault,” but the direct opposite. It calls for liability for any particular injury in direct proportion to fault. It eliminates a windfall for either claimant or defendant as presently exists in our all-or-nothing situation where sometimes claims are barred by contributory negligence and sometimes claims are paid in full regardless of contributory negligence ....

Id. (Citations omitted).

Shortly after Hilen, we addressed the issue of comparative fault among multiple tortfeasors in Prudential Life Insurance Co. v. Moody, 696 S.W.2d 503 (Ky.1985), wherein Justice Vance noted in his concurring opinion:

[W]e held [in Hilen ] that a plaintiff who is only partially at fault cannot fairly be required to bear the entire loss. It would seem to follow, therefore, that a defendant who is only partially at fault in causing an injury should not be required to bear the entire loss but should, likewise, be chargeable only to the extent of his fault.

Id. at 505. See also Dix & Associates Pipeline Contractors, Inc. v. Key, 799 S.W.2d 24, 27 (Ky.1990). (“Whereas it is fundamentally unfair for a plaintiff who is only 5 percent at fault to be absolutely barred from recovery from a defendant who is 95 percent at fault, it is equally and fundamentally unfair to require one joint tort-feasor who is only 5 percent at fault to bear the entire loss when another tort-feasor has caused 95 percent of the loss.”)

In 1988, Kentucky codified certain procedural aspects of our comparative fault system with the passage of KRS 411.182, thus representing the legislature’s intent to eliminate, once and for all, joint and several liability and to protect plaintiffs and defendants alike from being penalized for the fault of another. KFB aptly points out that the adoption of comparative fault and its codification in KRS 411.182 were designed to prevent the result reached by the Court of Appeals herein, i.e., a plaintiff being able to allocate fault against a tort-feasor far in excess of that tortfeasor’s actual liability.

KRS 411.182 did not supplant our body of Kentucky law of comparative fault. Rather, it “is simply a codification of this common law evolution of the procedure for determining the respective liabilities of joint tortfeasors,” whether joined in the original complaint or by third-party complaint. Degener v. Hall Contracting Corp., 27 S.W.3d 775, 779 (Ky.2000). See also Dix, swpra. Emphasizing the underlying foundation of the equitable policies of comparative fault, we recently reiterated that “[t]he core principle of comparative negligence is that ‘[o]ne is hable for an amount equal to his degree of fault, no more and no less.’” Regenstreif v. Phelps, 142 S.W.3d 1, 6 (Ky.2004) (quoting Stratton v. Parker, 793 S.W.2d 817, 820 (Ky.1990).

At oral argument, Appellees’ counsel argued that had the jury placed one hundred percent of the fault with the unknown motorcyclist, then KFB would not have been obligated to pay any UIM coverage. However, since the jury found that Ashby was fifty percent at fault, then one hundred percent of the fault should be allocated to him, and KFB should be required to pay ah damages in excess of that paid by Ashby’s liability carrier. In response to a question from the bench, counsel stated that such a result should occur even if the jury had found Ashby only five percent at fault and the motorcyclist ninety-five percent at fault. Essentially, Ap-pellees’ position is that if the known tort-feasor is found at all at fault, then the entire burden must be allocated to him. We find such a result illogical, unfair, and contrary to the purpose of comparative fault principles.

KFB’s contractual liability to Ap-pellees is defined and determined by the extent to which Ashby was found to be an underinsured motorist. Part of the equation in fixing that liability involves establishing Appellees’ damages, which necessarily requires a determination of Ashby’s percentage of liability or fault. In other words, Appellees are only entitled to recover such damages from KFB that they would have been entitled to recover from Ashby but for the fact he had insufficient liability coverage. Thus, fundamental fairness requires that KFB be permitted to introduce evidence pertaining to the alleged fault of a third-party tortfeasor. By reversing the trial court’s decision to permit apportionment against the unknown motorcyclist, the Court of Appeals essentially resurrected the concept of joint and several liability.

Kentucky CR 4.15 permits an action against an unknown defendant. Furthermore, upon compliance with the service of process procedures set forth in CR 4.05, 4.06, 4.07, the action may proceed accordingly. See Schwindel v. Meade County, 113 S.W.3d 159 (Ky.2003). KFB complied with the procedural requirements to bring the unknown motorcyclist into the lawsuit as a third-party defendant. While not currently known, the motorcyclist can nonetheless be apportioned fault for the purposes of determining Ashby’s percentage of fault and KFB’s resulting contractual liability.

Finally, we find the Court of Appeals’ “empty chair” concerns to be without merit. In this case, there was more than sufficient evidence presented from several witnesses as to the motorcyclist’s culpability in causing the accident. Despite Appel-lees’ protestations to the contrary, this is not a situation where an insurance company has created a “phantom” party for the purpose of shifting liability. Nor does apportionment of fault to a tortfeasor who is not an “active” party to the action impose any liability upon him or warrant a judgment against him; it merely determines the percentage of total damages for which he was responsible. Floyd v. Carlisle Construction Co., Inc., 758 S.W.2d 430 (Ky.1988).

The thrust of the comparative negligence doctrine is to accomplish (1) the apportionment of fault between or among negligent parties whose negligence proximately causes any part of a loss or injury, and (2) the apportionment of the total damages resulting from such loss or injury in proportion to the fault of each party. To reach those purposes of the doctrine, we have great faith in the ability of our juries to determine whether an unknown tortfeasor was a legitimate cause of an injury or merely a fraudulent apparition to shift fault. Furthermore, apportionment of fault may not even be considered by the jury unless and until the trial court makes a threshold assessment that reasonable jurors could, in fact, determine that an individual was a fault. Owens Corning Fiberglas Corp. v. Parrish, 58 S.W.3d 467, 471 (Ky.2001).

Here, KFB properly joined the motorcyclist as a party to the action and presented sufficient evidence to justify an apportionment instruction. We conclude that the trial court properly instructed the jury to consider the liability of the motorcyclist in apportioning fault, and the jury concluded that he was fifty percent responsible for the accident. As such, KFB’s liability to Appellees under the UIM contract was limited to fifty percent of the excess damages over and above Ashby’s policy limits.

For the foregoing reasons, the decision of the Court of Appeals is reversed and the judgment of the Shelby Circuit Court is reinstated.

COOPER, GRAVES, ROACH, and WINTERSHEIMER, JJ., concur.

SCOTT, J., dissents by separate opinion, with LAMBERT, C.J., joining that dissent.

Dissenting Opinion by

Justice SCOTT.

Respectfully, I dissent.

The majority opinion concedes that apportionment would not be appropriate against a third-party immune from liability as a matter of law, citing Lexington-Fayette Urban County Government v. Smolcic, 142 S.W.3d 128 (Ky.2004). Yet, they would allow apportionment to an unknown tortfeasor who is neither before the court, nor subject to personal liability, such as the unknown motorcyclist in this case.

In Smolcic and Jefferson County Commonwealth Attorney’s Office v. Kaplan, 65 S.W.3d 916 (Ky.2001), this Court held that fault could not be apportioned to persons or entities that enjoyed absolute or sovereign immunity because they failed to qualify as substantive “parties to the action” and therefore were not within the scope of KRS 411.182, Kentucky’s apportionment statute. Following this same line of reasoning, a non-party, non-settling entity, not before the court, and not subject to personal liability, should not be considered for apportionment purposes because such a person is not a “party to the action” as required by KRS 411.182. There is simply no consistent logic between Smolcic and the majority’s opinion in this case.

Of course, the majority doesn’t even think KRS 411.182 applies in this case. They conclude the statute only applies in tort actions and feel this case is purely contractual. They cite Philadelphia Indemnity Insurance Co. v. Morris, 990 S.W.2d 621, 625 (Ky.1999) for the well-settled principle that “a ‘suit to recover UIM coverage is a direct action’ against the UIM carrier and ‘the [UIM] carrier alone is the real party in interest..H owever, it does not follow from that premise that KRS 411.182 is irrelevant to adjudication of KFB’s contractual obligations. Under the terms of the contract, KFB’s liability is measured by the uninsured driver’s fault as determined under tort law. See Hoffman v. Yellow Cab Co. of Louisville, 57 S.W.3d 257, 259 (Ky.2001). However, if the procedural requirements of KRS 411.182 are not applicable to contract claims, then neither can the comparative negligence principles of Hilen v. Hays, 673 S.W.2d 713 (Ky.1984) be used to obtain the same result (Hilen only applies to ordinary negligence cases — not contract issues). How then can the majority claim any right to apportionment in a contract case?

I believe KRS 411.182 does apply in this case, and this Court has repeatedly recognized that apportionment is strictly limited to those who fall within the scope of the statute. Kaplan, supra; Owens Corning Fiberglas Corp. v. Parrish, 58 S.W.3d 467 (Ky.2001). As such, it is important to look to the terms of the statute in order to determine to whom it applies. KRS 411.182 does not expressly define the term “party.” But upon review of the statute, it becomes clear that “party” means anyone who actively assert claims, offensively or defensively, as parties before the court or who have settled by release or agreement.

In this case, the Kruers’ estate sued KFB for UIM coverage provided under their policy. KFB then filed a third party complaint against the unknown motorcyclist, who was constructively served via warning order attorney. The Kruers countered with a claim against KFB on its UM coverage, but were denied their claim on grounds there was no contact by the motorcyclist with the Kruers’ vehicle. See Burton v. Farm Bureau Ins. Co., 116 S.W.3d 475, 478 (Ky.2003)(“the purpose of the physical contact rule is to protect [] the insurer from fraudulent claims”). Yet, here, the majority refuses to apply its own Burton “no contact” logic in the apportionment of fault to an “unknown defendant”, who was only constructively served by a warning order attorney, and thus, was unavailable as a real party in the case.

Civil Rule 4.05 allows “individuals whose name or place of residence is unknown” to be constructively served via warning order. However, CR 4.05 should be read in conjunction with KRS 454.165, which provides that a court cannot achieve in per-sonam jurisdiction over persons who are the subject of constructive service of process.

Proceedings are divided into three classes, viz.: (1) in personam, (2) in rem, and (3) quasi in rem.

A judgment in a proceeding in rem is an adjudication upon the status of some particular thing by a tribunal having jurisdiction of the subject matter; it differs from a judgment in a proceeding in personam, in that the latter is an adjudication of the rights of the parties to the action, and does not directly affect the status of a thing or res. A personal judgment is a pronouncement binding only on the parties to the action and their privies; a judgment in rem, by a court of competent jurisdiction, is a pronouncement upon the status of the subject matter, and is binding upon the world. Judgments in rem and quasi in rem may be pronounced in an action in which the defendant has been notified by constructive process; whereas, a personal judgment may be pronounced only by personal service upon the defendant within the territorial jurisdiction of the court, or by his voluntary appearance to the action.

Gayle v. Gayle, 301 Ky. 613, 192 S.W.2d 821, 822 (1946)(internal citations omitted).

As the Kruers’ action against KFB for UIM benefits is an in personam action, the unknown motorist cannot be constructively served and become a “party to the action.”

In effect, the majority opinion lowers the standard of service necessary for apportionment. Instead of requiring personal jurisdiction, the majority would now allow apportionment to any unknown, nominal party, constructively served. They argue “fundamental fairness” requires that KFB be permitted to introduce evidence pertaining to the alleged fault of a third-party tortfeasor (who never touched anybody), even though the deceased plaintiffs are not to be accorded the same “fundamental fairness” on their UM coverage from KFB per Burton.

Even so, we are not dealing with a true “third-party” in this case. A constructively served “unknown” defendant is not considered to be before the court in an in personam action such as this. c.f., Nolph v. Scott, 725 S.W.2d 860, 861-862 (Ky.1987) (“Appointment of a warning order attorney is a procedural device permitting an action to proceed in certain circumstances, unknown to the defendant”). Even Justice Liebson in his dissent in Nolph acknowledged: “This lawsuit is an action in per-sonam and not in rem, and constructive service does not, per se, make Mr. Nolph a party defendant.” Nolph at 862 (emphasis added). Therefore, the unknown motorcyclist is not a “third-party” or any “party to the action.” Fundamental fairness requires that apportionment not be allowed to such a non-party on the basis of constructive service of process alone.

He does not defend himself — and in many cases in the future, he will only be a “ghost” — created by the intellect of the otherwise liable party — defending himself against subrogation from the UIM carrier, both having the same interest — reducing the damages awarded. In this case the parties were killed, and thus, they cannot dispute the tortfeasor’s proof as to who did what. Yet, for some unfathomable reason — we now have a “no personal jurisdiction” apportionment and a “no contact” rule for KFB — but not for their policyholders who paid their premiums on the earnest expectation they were buying coverage.

For the above stated reasons, I believe the unknown motorcyclist cannot be deemed a “party to the action” for purposes of apportionment. And because fault should not be apportioned against the “unknown motorcyclist”, the issue of dismissal of the UM claim need not be addressed, other than to add, this Court has repeatedly upheld policy provisions requiring direct, physical contact with an uninsured vehicle as a prerequisite to UM coverage. That being said, the policyholders ought to have the benefit of the same rule. That would meet the need for consistency and avoid this absurd result.

LAMBERT, C.J., joins this dissent.

      . Appellees acknowledge that this Court’s recent decision in Burton v. Farm Bureau Ins. Co., 116 S.W.3d 475 (Ky.2003) resolves this issue in favor of KFB, and have thus declined to address it herein.

      . Of course, as this Court has established, apportionment would not be appropriate against a third-party immune from liability as a matter of law, Lexington-Fayette Urban County Government v. Smolcic, 142 S.W.3d 128 (2004), or a party who has been dismissed on the merits of the claim.

      . Although the trial court erred in relying on KRS 411.182 for apportionment, it reached the correct result and can still be affirmed. Haddad v. Louisville Gas & Electric Co., 449 S.W.2d 916 (Ky.1970).

      . (quoting Coots v. Allstate Insurance Company, 853 S.W.2d 895, 903 (Ky.1993)).


author: Justice GRAVES. Justice JOHNSTONE.

text:
    Michael YEAGER, et al Appellants v. Christine McLELLAN Appellee
    No. 2003-SC-0180-DG.
    Supreme Court of Kentucky.
    Nov. 23, 2005.
    David A. McCullough, Louisville, Counsel for Appellants.

      Bruce A. Brightwell, Louisville, Counsel for Appellee.
   Opinion of the Court by

Justice GRAVES.

This dispute involves an action for breach of contract/breach of warranty based upon alleged misrepresentations máde by the sellers of a home, Appellants Michael and Irene Yeager. Buyer, Appel-lee Christine McLellan, maintains that a “Seller’s Disclosure of Property Condition” form (hereinafter “disclosure form”) signed by Appellants misrepresents instances of basement water leaks, and that this form is specifically incorporated by reference as a warranty in the purchase contract. The Jefferson Circuit Court entered summary judgment in favor of the sellers, Appellants. The Court of Appeals reversed and remanded the case to the Jefferson Circuit Court.

After listing their residential property for sale, Appellants completed and signed the disclosure form pursuant to KRS 324.360. 201 EAR 11:350 sets forth administrative regulations relative to the disclosure requirement. 201 EAR 11:350 provides:

This disclosure is based solely on the seller’s observation and knowledge of the property’s condition and the improvements thereon. This statement shall not be a warranty by the seller or seller’s agent and shall not be intended as a substitute for an inspection or warranty the purchaser may wish to obtain.

The disclosure form also includes the above language.

ERS 324.360 mandates that the disclosure form must contain information pertaining to the basement condition and “whether it leaks.” ERS 324.360(3). The disclosure form in question contains a checklist of queries regarding the property. In response to the question asking, “Does the basement leak,” Appellants checked “Yes.” The follow up question asks, “If yes, when?” Appellants wrote, “March 1989 & 1997.” The next question asks whether the leak has been repaired or treated. Appellants answered “No” to this question.

Paragraph 11.A of the purchase contract executed between Appellants and Ap-pellee includes the following language:

Buyer acknowledges receipt of a Seller’s Disclosure of Property Condition (as required by 201 EAR 11:350) from Seller. Seller represents and warrants to Buyer... that the information provided in the Seller’s Disclosure of Property Condition is true, accurate and complete to the best of their knowledge. Seller and/or Buyer shall indemnify and hold harmless all the foregoing parties from any liabilities, damages, costs, fees and expenses resulting from any incorrect information provided herein, in the Listing Contract, or in the Seller’s Disclosure of Property Condition.

The contract also contains a provision allowing the buyer to inspect the property and report to the seller substantial defects found by the inspection for repair by the seller. Appellee hired Inspection Group, Inc. to inspect the property. The inspection report mentions the existence of cracks in the basement wall and suggests further inquiry. Appellee made no further inquiry or request for repair, and proceeded to close on the property. Appellee alleges that she experienced problems with basement leaks soon after she moved into the house.

Less than three years after moving into the property Appellee brought an action against the sellers alleging breach of contract/breach of warranty and fraud. Ap-pellee charged that Appellants falsely completed the'disclosure form because the two incidents listed (March 1989 and 1999) were not the only times that the basement had leaked. The Jefferson Circuit Court entered partial summary judgment in favor of Appellants, reasoning that the disclosure form clearly stated that it was not a warranty. Appellee voluntarily dismissed her fraud claim, and the partial summary judgment on the claim for breach of contract/breach of warranty was certified as final and appealable. The Court of Appeals reversed and remanded, holding that while the disclosure form in and of itself did not constitute a warranty, the parties specifically agreed to incorporate the disclosure form as a warranty in the purchase contract. The Court of Appeals remanded to the trial court to resolve the issue of fact as to whether Appellants lied on the disclosure form and thereby breached the warranty. We granted review.

I.

The first issue that we must decide is whether a warranty exists in either the disclosure form itself, or the purchase contract. As we have noted above, both 201 KAR 11:350 and the disclosure form expressly state that a disclosure form does not constitute a warranty. Clearly, by itself, the disclosure form is not a warranty.

However, the purchase contract does contain a clause stating that Appellants warrant to Appellee that the information in the disclosure form is “true, accurate and complete to the best of their knowledge.” In the absence of ambiguity, a written instrument will be strictly enforced according to its terms. O’Bryan v. Massey-Ferguson, Inc., 413 S.W.2d 891, 893 (Ky.1966). However, a court may refuse to enforce a contract on grounds of illegality where the contract has a direct objective or purpose that violates the federal or a state Constitution, a statute, an ordinance, or the common law. Zeitz v. Foley, 264 S.W.2d 267, 268 (Ky.1954). This clause in the contract creates a warranty. The contract incorporates the disclosure form by reference and explicitly warrants the truthfulness and accuracy of the form and must be enforced as such. As the Court of Appeals correctly notes, the contract does not violate KRS 324.360 or 201 KAR 11:350 because the parties are in compliance with these provisions and merely sought to give greater weight to the disclosure form than was statutorily required. See e.g. Munday v. Mayfair Diagnostic Laboratory, 831 S.W.2d 912 (Ky.1992).

II.

Although a warranty exists in the purchase contract, we must consider whether the contract was merged into the deed of conveyance. “The merger doctrine holds that all prior statements and agreements, both written and oral, are merged into the deed and the parties are bound by that instrument.” Borden v. Litchford, 619 S.W.2d 715, 717 (Ky.App.1981). If the merger doctrine applies, then Appellee has no grounds for recovery under the warranty of the purchase contract. Id.

One exception to the doctrine of merger states that false and fraudulent misrepresentations do not merge. Dunn v. Tate, 268 S.W.2d 925 (Ky.1954). Appel-lee must establish the six elements of fraud by clear and convincing evidence in order to demonstrate that the warranty was a fraudulent misrepresentation to be excepted from merger. These elements are: a) a material representation b) which is false c) known to be false or made recklessly d) made with inducement to be acted upon e) acted in reliance thereon and f) causing injury. United Parcel Service Co. v. Rickert, 996 S.W.2d 464, 468 (Ky.1999). Appellee alleges that Appellants omitted instances of water leakage from the disclosure form, and that Michael Yeager failed to mention his belief that there was an underground spring under the property. Appellee cites to a deposition of Michael Yeager. Appellee makes sufficient allegations to allow the trial court to consider this factual issue. It is to be noted that Appellee dismissed an earlier fraud claim. However, Appellee may prove fraud only insofar as it relates to the fraud exception to the merger doctrine, which is relevant to Appellee’s breach of contract/breach of warranty claim.

Appellee argues that the merger doctrine does not bar her claim because a hidden defect exception also applies. Ap-pellee relies on Ferguson v. Cussins, 713 S.W.2d 5 (Ky.App.1986), and Borden v. Litchford, supra. However, Appellee’s reliance on these cases is misplaced, as there is no hidden defect exception to the merger doctrine as it applies to express warranties and contracts. Borden involved the purchase of a new home. In discussing caveat emptor, the Borden court states that the merger doctrine does not apply to hidden defective conditions under an implied warranty. Id. at 717. Ferguson also does not involve an express warranty but instead cites to the above Borden proposition in a discussion of caveat emptor. Thus, in both cases, the notion of hidden defect directly relates to caveat emptor and implied warranty. There is no case law stating that hidden defect is a distinct exception to the application of merger to express warranties.

If Appellee can demonstrate that the fraud exception to the merger doctrine applies, then she may proceed on her breach of eontracl/breach of warranty claim. Accordingly, we affirm the Court of Appeals and remand to the circuit court for further proceedings consistent with this opinion.

LAMBERT, C.J., COOPER, SCOTT, and WINTERSHEIMER, J.J., concur.

JOHNSTONE, J., dissents by separate opinion in which ROACH, J., joins.

Dissenting Opinion by

Justice JOHNSTONE.

Respectfully, I must dissent.

The majority concludes that the doctrine of merger applies in this situation, thus barring Ms. McLellan’s claim unless she can prove fraud upon remand. Ms. McLellan had moved for summary judgment on the issue of fraud as well, but the motion was denied. I believe that the motion should have been granted in favor of the Yeagers, as Ms. McLellan had failed to present evidence of the requisite elements of fraud.

As noted in the majority opinion, there are six required elements to establish a claim of fraud: (a) a material representation, (b) which is false, (c) and which is known to be false or made recklessly, (d) made with inducement to be acted thereon, (e) which is acted thereon, and (f) causes injury. United Parcel Service Co. v. Rickert, 996 S.W.2d 464, 468 (Ky.1999). “[A] claimant may establish a detrimental reb-anee in a fraud action when he acts or fails to act due to fraudulent misrepresentations.” Id. at 469. Therefore, as Ms. McLellan ultimately entered into the contract, she had the burden of establishing that she was induced to act due to the Yeagers’ misrepresentation, and that she would not have entered into the contract had she held comprehensive knowledge of the condition of the basement. In my opinion, Ms. McLellan has failed to provide any evidence that she acted in reliance upon the alleged misrepresentation. Furthermore, if she did act in reliance upon the Yeagers’ representation about the basement, she did so without justification.

At the outset, it must be pointed out that Ms. McLellan was never deposed in this matter. Without any evidence or testimony from Ms. McLellan, there is no basis upon which to conclude that she acted in reliance upon the Yeagers’ representation. Having failed to demonstrate this required element of fraud, the Yeagers were entitled to summary judgment.

Furthermore, even construing the circumstantial evidence in a light most favorable to Ms. McLellan, there is no basis upon which a reasonable juror could conclude that she acted in reliance upon the representations about the basement. See Rickert at 468 (detrimental reliance may be established by circumstantial evidence). There is no dispute that Ms. McLellan was on notice that a problem with water existed in the basement. The issue is simply one of extent. She knew that water had backed into the basement on at least two occasions, and that the problem required the operation of three sump pumps. She was advised by her own professional home inspector to investigate the basement further, but chose not to. She requested no additional information or repairs from the Yeagers and proceeded with the purchase. Now, Ms. McLellan claims that if she were offered a single additional piece of information — that the basement had in fact backed up on more than two occasions— she would not have purchased the home. In light of the amount of information already in her possession concerning the defect, this self-serving contention is beyond belief. The plain and simple truth is that she was aware of a problem, chose to disregard it, and purchased the home anyway.

Nonetheless, even if Ms. McLellan was induced to enter the contract by the alleged misrepresentation, such reliance was neither justified nor reasonable. “The very essence of actionable fraud or deceit is the belief in and reliance upon the statements of the party who seeks to perpetrate the fraud. Where the plaintiff does not believe the statements — or where he has knowledge to the contrary — recovery is denied.” Wilson v. Henry, 340 S.W.2d 449, 451 (Ky.1960) (internal citations omitted). Indeed, it has long been the law of Kentucky that, where ordinary inspection or investigation would prevent a deception, an action for fraud will not stand: ‘With respect to points plainly within the reach of every man’s observation and judgment, and where an ordinary attention would be sufficient to guard against imposition, the want of such attention is, to say the least, an inexcusable negligence.” Moore v. Turbeville, 5 Ky. (2 Bibb) 602 (Ky.1812). This principle applies no less to contracts for the sale of real property. Borden v. Litchford, 619 S.W.2d 715 (Ky.App.1981).

Admittedly, the doctrine of caveat emptor has been relaxed with respect to real estate sales because “[t]he ordinary home purchaser is not in a position to ascertain latent and nonobservable defects.” Borden at 717. This shift away from a strict rule of “buyer beware” is evidenced, for example, in the more modem rule that a purchaser may maintain an action for fraud, despite the fact that the seller’s misrepresentations would have been revealed by inspection of the public records. See e.g., Cowles’ Ex’r v. Johnson, 297 Ky. 454, 179 S.W.2d 674 (1944). There is no indication, however, that the doctrine of caveat emptor has been so relaxed as to exclude willful disregard by a purchaser on notice of a defect. A person signing a contract cannot rely blindly on the other parties’ statements, but must exercise ordinary care. McClure v. Young, 396 S.W.2d 48 (Ky.1965); see also Kreate v. Miller, 226 Ky. 444, 11 S.W.2d 99 (1928). “It is generally held that one has no right to rely on representations as to the condition, quality, or character of property ... where the parties stand on an equal footing and have equal means of knowing the truth, or where a right of inspection was given but not utilized.” 37 Am.Jur.2d Fraud and Deceit § 267 (2006). The public’s interest in such a policy is self-evident: without it, nearly every sale would be subject to endless litigation by a disappointed purchaser.

Thus, I believe as a matter of law that Ms. McLellan was not justified in relying upon the representations set forth in the Yeagers’ disclosure form, in light of the other information before her. The parties agree that she was on notice of the defect. The ordinary person in her position, having been informed of this issue and, in fact, specifically advised by her own expert to investigate it further, would refrain from executing a deed of conveyance without further inquiry. Had she engaged in further inspection, she might have learned the actual extent of the defect. Nothing prohibited her from engaging in such an investigation. But she chose not to, and the law dictates that she did so at her own risk.

A review of cases from other states reveals that Ms. McLellan’s claim of fraud would be rejected in nearly every one. See e.g., Smith v. Stanley, 223 Ga.App. 334, 477 S.E.2d 618 (1996) (concluding that purchasers could not justifiably rely upon any representations or absence of representations concerning the effect of interior flooding as element of passive concealment fraud, where roof line, drainage from roof, and grading of the area suggested proclivity for flooding, and where purchasers received notice that the home was in a flood zone and chose not to perform an inspection of the house, instead relying on bare assertions of sellers); Clouse v. Gordon, 115 N.C.App. 500, 445 S.E.2d 428 (1994) (sellers of real estate did not commit fraud concerning the possibility of flooding, where purchasers independently chose not to inspect property and where reasonable diligence by purchasers would have revealed that the property stood on a floodplain); Pagano v. Krohn, 60 Cal.App.4th 1, 70 Cal.Rptr.2d 1 (1997) (where water intrusion problem was a matter of public record within purchaser’s diligent attention and general water intrusion problem existed in area of home and was disclosed to purchaser, purchaser could not maintain action for fraud against vendor as subsequent water intrusion in her unit was simply an elaboration of a disclosed fact); Connor v. Merrill Lynch Realty, Inc., 220 Ill.App.3d 522, 163 Ill.Dec. 245, 581 N.E.2d 196 (1991) (summary judgment in favor of home seller was appropriate in spite of buyers’ allegation that seller had actively concealed evidence of basement flooding, where seller made no attempt to hide water marks in basement, and such marks were fully observable to purchaser, and seller in fact admitted prior to sale that there had been significant amount of water in the basement); Berger-Vespa v. Rondack Building Inspectors Inc., 293 A.D.2d 838, 740 N.Y.S.2d 504 (N.Y.App.Div.2002) (buyers’ fraudulent concealment claim concerning water in the basement properly failed where buyers personally observed dampness in basement and home inspection report contained reference to such dampness, but buyers declined to inspect further and proceeded with purchase nonetheless).

I find most persuasive a factually analogous case from our neighboring state of Ohio. In Cardi v. Gump, the purchaser claimed that the seller fraudulently misrepresented the extent of water damage in a basement. 121 Ohio App.3d 16, 698 N.E.2d 1018 (1997). The seller’s disclosure form indicated that the basement had no current water leakage or other defects. But the purchaser noticed high water marks in the basement, and two inspectors likewise noted the problem. In fact, both inspectors advised the purchaser to pursue the drainage issue with the seller, but the purchaser did not. After the purchaser took possession, the basement flooded. The Court of Appeals of Ohio concluded that the purchaser was not entitled to summary judgment on the issue of fraud because, in light of the facts readily ascertainable to the purchaser and the suggestions of his inspectors, he had failed to “show justifiable reliance upon the representations of [the seller].” Id. at 1022-23.

I find no reason to depart from the well-established and widely recognized rule that a buyer may not claim fraud with respect to the sale of a home when that buyer was informed of the defect at issue, had ample opportunity to inspect the defect, was in fact specifically advised to inspect the defect, but chose to purchase the home anyway. Ms. McLellan has failed to establish even a prima facie case of fraud, and the Yeagers were entitled to summary judgment on that issue.

ROACH, J., joins this dissenting opinion.


text:
    COMMONWEALTH of Kentucky, Appellant v. Roy STACEY, Appellee.
    No. 2004-SC-0358-DG.
    Supreme Court of Kentucky.
    Nov. 23, 2005.

      Gregory D. Stumbo, Attorney General of Kentucky, Michael L. Hamed, Assistant Attorney General, Criminal Appellate Division, Office of the Attorney General, Frankfort, Counsel for Appellant.
    David J. Harris, Assistant Public Advocate, Department of Public Advocacy, Frankfort, Counsel for Appellee.
   Opinion of the Court by

Justice JOHNSTONE.

In August 1999, Roy Stacey pled guilty in the Nelson Circuit Court to five counts of third-degree rape, five counts of third-degree sodomy, and to being a first-degree persistent felony offender. Pursuant to a plea agreement, Stacey was sentenced to ten concurrent five-year terms, enhanced to fifteen years’ imprisonment by virtue of the PFO charge. Stacey’s sentence was also ordered to run concurrently with three prior Bullitt County convictions, as well as a sentence on another contemporaneous Jefferson County charge.

During the plea colloquy, Stacey stated under oath that he understood the charges against him. When asked if he was under the influence of alcohol or medication, Stacey responded that he had only taken medication for chemotherapy, but it would not affect his ability to think or reason. Further, Stacey divulged that he had, in the distant past, suffered from some “alcohol-related” psychological and emotional problems. Based on the colloquy, the trial court found Stacey competent to enter a guilty plea. The trial court thereafter informed Stacey of his constitutional rights and asked him if he was waiving those rights by pleading guilty. Stacey responded in the affirmative. The trial court ruled that Stacey’s plea was intelligent, knowing, and voluntary.

Stacey did not file a direct appeal of his convictions. However, on May 8, 2003, he filed a motion for post-conviction relief pursuant to RCr 11.42. Stacey alleged that his August 1999 guilty plea was invalid because of a diminished mental capacity resulting from head injuries he sustained in a 1997 automobile accident. In support of his claim, Stacey relied upon a report produced by a licensed clinical psychologist in conjunction with a personal injury claim arising out of the automobile accident. The report, dated approximately two months prior to Stacey’s guilty plea, noted that he suffered from a “vast array of neuropsychological deficits.” Thus, while conceding that the motion was filed outside of the three-year statute of limitations contained in RCr 11.42(10), Stacey argued that his non-compliance should be excused due to “ongoing incompetency.”

The trial court denied Stacey’s motion as “time barred,” on the grounds that it was filed over six months beyond the statute of limitations, and that the pre-plea “unverified neurological report ... was known to [Stacey] both at the time of his pleas as well as at final sentencing.” The trial court also denied Stacey’s requests for counsel and an evidentiary hearing.

The Court of Appeals subsequently vacated the trial court’s order, holding that Stacey produced sufficient evidence to “raise an evidentiary issue concerning whether [he] suffered from an on-going mental incapacity following his guilty plea such that the statute of limitations contained in RCr 11.42(10) should be tolled.” The Court of Appeals further ordered:

Upon remand, the trial court should conduct an evidentiary hearing to determine whether Stacey suffered from a mental incapacity, or an “unsound mind,” such that during the three year limitations period, he was unable to understand or appreciate the factual basis for his present RCr 11.42 motion; and, considering his mental state, whether he could have ascertained the factual basis with the exercise of due diligence.

This Court thereafter granted the Commonwealth’s motion for discretionary review. For the reasons discussed herein, we reverse the decision of the Court of Appeals and reinstate the trial court’s order denying Stacey’s motion for post-conviction relief pursuant to RCr 11.42

The issue to be considered is not whether Stacey was, in fact, competent at the time he entered his plea, but rather whether he alleged sufficient grounds in his untimely RCr 11.42 motion to warrant an evidentiary hearing. RCr 11.42(10) provides, in pertinent part:

Any motion under this rule shall be filed within three years after the judgment becomes final, unless the motion alleges and the movant proves either:
(a) that the facts upon which the claim is predicated were unknown to the movant and could not have been ascertained by the exercise of due diligence[.]

Because there was no appeal taken, the trial court’s judgment became final on November 21, 1999. Thus, Stacey’s RCr 11.42 motion, filed on May 8, 2003, was clearly outside the three-year statute of limitations.

Notwithstanding, the Court of Appeals, focusing primarily on the psychologist’s findings that Stacey was “permanently mentally disabled” and that the disability interfered “with every aspect of his life,” was persuaded that Stacey was entitled to an evidentiary hearing on whether his alleged mental circumstances fit within the RCr 11.42(10)(a) tolling provision:

The letter lends some credibility to Stacey’s allegation that the facts upon which his claim is predicated (i.e., that he was incompetent to enter a guilty plea because of a mental incapacity) were unknown to him (because of his mental incapacity) and could not have been ascertained by the exercise of due diligence (because he was unable to exercise due diligence because of this mental incapacity).

The Court of Appeals further concluded that, because the determination of whether the statute of limitations should be tolled is a question of fact, the trial court erred in refusing to hold an evidentiary hearing. We disagree.

While this issue has not previously been addressed by Kentucky courts, we find the facts herein similar to those presented in the Ohio Court of Appeals’ decision, State v. Burke. Burke pled guilty in 1995 to one count of burglary, and was sentenced to four to fifteen years imprisonment. In April 2002, he filed a petition for post-conviction relief, which was dismissed as time barred under Ohio’s post-conviction statute.

On appeal, Burke relied on a provision similar to RCr 11.42(10)(a), which tolls the statute of limitations if “[t]he petitioner shows that [he] was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief.” Ohio Rev.Code § 2953.23(a)(1). Burke alleged that he fell within the ambit of the exception because he was “developmentally disabled” and suffered from “emotional mental illness” which prevented him from understanding the time requirements of the statute. In support of his claim, Burke relied upon a “psycho-educational report” dated three years prior to his guilty plea.

In rejecting Burke’s argument, the Ohio Court of Appeals held:

[T]he report cited by defendant is dated more than three years prior to the time defendant entered his guilty plea, and thus does not address his mental status or competency at the time of his sentence or during the statutory time period under which he was required to file a petition for post-conviction relief. Further, defendant has not demonstrated how he was “unavoidably- prevented” from discovering that he suffered from a developmental disability. Even assuming that defendant suffers from a developmental disability, the record contains no evidence as to how such disability hindered his ability to comply with the statutory requirements for bringing a petition for post-conviction relief. Nor does a claim of mental incompetence constitute a per se reason to toll a statute of limitations.

Id. at 3 (citation omitted).

We are convinced that the Ohio court’s logic applies equally to the facts presented herein. The neurological report, which notably was prepared in anticipation of civil litigation, did not address Stacey’s mental status at the time of his plea or during the statutory time period in which he was required to file the RCr 11.42 motion. Contrary to the Court of Appeals’ decision, Stacey has not presented any evidence that his alleged mental incapacity was either unknown to him or could not have been ascertained by him by the exercise of due diligence during the three-year limitations period of RCr 11.42(10). Rather, the report was known to Stacey at both the time of his plea and at the time of sentencing. Even assuming that Stacey does suffer from some level of mental impairment, the record is devoid of any evidence as to how such impairment prevented him from complying with the three-year limitations requirement. We agree with the Ohio court that a claim of mental incompetence does not constitute a per se reason to toll a statute of limitations.

Nor do we find any merit in Stacey’s argument that the three-year limitations period should be excused under the principle of equitable tolling. Stacey relies on the Court of Appeals’ analogy of the instant situation to the provisions of KRS 413.170(1), which toll the statute of limitations in civil cases if the plaintiff was, at the time the cause of action accrued, “of unsound mind.” The Court noted that within the context of KRS 413.170(1), the term “unsound mind” has been interpreted to mean that the person claiming the disability “must show that he has been rendered incapable of managing his own affairs.” Southeastern Kentucky Baptist Hospital v. Gaylor, 756 S.W.2d 467 (Ky.1988). From this rationale, Stacey contends that the Court of Appeals acknowledged that due process and fundamental fairness supports the application of equitable tolling to a situation such as his.

Although this Court has not considered the concept of equitable tolling with respect to state post-conviction proceedings, the Sixth Circuit Court of Appeals has held that the Anti-Terrorism and Effective Death Penalty Act’s (“AEDPA”) one-year statute of limitations for filing a habeas corpus petition is subject to the doctrine of equitable tolling. Dunlap v. United States, 250 F.3d 1001 (6th Cir.2001). However, the critical inquiry remains whether the circumstances preventing a petitioner from making a timely filing were both beyond the petitioner’s control and unavoidable despite due diligence. Id. at 1010.

Without expressly determining whether and under what circumstances equitable tolling may apply to an RCr 11.42 motion, we conclude that Stacey simply has not offered any evidence to support equitable relief. Again, Stacey was required to offer some proof that the facts predicating his claim for relief were either unknown to him or undiscoverable by the exercise of due diligence. As the psychologist’s report pre-dates Stacey’s guilty plea, the record clearly refutes any contention that Stacey was unaware of his condition or claim for relief during the three-year statute of limitations for filing the RCr 11.42 motion. As such, the trial court did not err in either denying the motion as time barred or in refusing to hold an evidentia-ry hearing. Fraser v. Commonwealth, 59 S.W.3d 448 (Ky.2001); Stanford v. Commonwealth, 854 S.W.2d 742 (Ky.1993), cert. denied, 510 U.S. 1049, 114 S.Ct. 703, 126 L.Ed.2d 669 (1994).

For the foregoing reasons, we reverse the decision of the Court of Appeals and reinstate the order of the Nelson Circuit Court denying Stacey’s motion for post-conviction relief pursuant to RCr 11.42

COOPER, GRAVES, ROACH, and WINTERSHEIMER, JJ„ concur.

SCOTT, J., dissents by separate opinion, with LAMBERT, C.J., joining that dissent.

Dissenting Opinion by

Justice SCOTT.

I must respectfully dissent from the majority.

What we are doing here today is disposing of an RCr 11.42 motion as untimely according to the language of the rule. Ordinarily, I would agree with this disposition without reservation. But here, I cannot ignore the circumstances surrounding Stacey prior to, during, and after his entry of his plea of guilt.

In this case, we are not simply denying an untimely collateral attack on a conviction. We are summarily disposing of a claim directly involving Stacey’s constitutional right to due process.

“Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial.” Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). These are the Fifth and Sixth Amendment rights (1) against self-incrimination, (2) to trial by jury, and (3) to confront one’s accusers. Id., e.g., Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed2.d 923 (1965). The United States Supreme Court has further held that for this waiver to be valid under the Due Process Clause, it must be “an intentional relinquishment or abandonment of a known privilege.” Id. (quoting McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969)); See also Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

Stacey suffered brain injuries in an automobile accident prior to his.plea. There was medical evidence available to establish that Stacey had suffered permanent brain damage from which he would never recover. The injury to his brain was sufficient enough to prompt a report from the Department of Corrections suggesting that Stacey’s “status” would not change “in regards to treatment” in the sex offender program, as a direct result of his injury, and that he should not be penalized as a result. The question becomes whether Stacey had the capability of understanding that he was brain damaged and whether he could, despite the brain damage, knowingly, intelligently, and voluntarily waive his right to a trial by jury.

The majority points out that the first report of his brain damage was available to him prior to the entry of the plea but he entered the plea nonetheless. They also point out that he knew of his injury for the entire three years thereafter but did not file his RCr 11.42 motion until six months or so after the running of the statute of limitations. Maybe this is so, but the gravity of the denial of due process is such that I cannot deny Stacey the opportunity, in the form of an evidentiary hearing before the trial court, to make the case that because of his brain injury (which is documented) he did not, and could not, through the exercise of due diligence, discover that he was unable to knowingly, intelligently, and voluntarily enter a guilty plea. The real question to be ascertained through the hearing is simply did this injury — and the resulting and uncontroverted deficit — keep him from knowing these things.

We have valid cause to question whether Stacey possessed this understanding and when an individual’s due process rights are in the balance, we must err on the side of caution. Maybe he did know what he was doing — but maybe he did not. An eviden-tiary hearing would answer that question. We are sworn to uphold the Constitution of the United States and that of this Commonwealth wherein all persons are guaranteed the right to due process under the law. As a consequence thereof, we are bound to ensure that Roy Stacey did, in fact, knowingly, intelligently, and voluntarily enter his guilty plea.

The Court of Appeals did not make that determination one way or another — they simply did what was constitutionally required of them and remanded the question to the trial court for a determination based upon the evidence. The guarantee of due process requires we do as much.

LAMBERT, C.J., joins this dissent.

      . 2002 WL 31771254 (Ohio App. 10 Dist.2002). (While not reported in N.E.2d, Rule 4(b) of the Ohio Supreme Court Rules for the reporting of opinions provides, "All Court of Appeals’ opinions issued after the effective date (May 1, 2002) of these rules may be cited as legal authority and weighed as deemed appropriate by the Courts.”)

      . Effective September 21, 1995, Ohio Rev. Code § 2953.21 was amended to require that a petition for post-conviction relief under subsection (a)(1) be filed no later than 180 days after the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction, or if no appeal is taken, no later than 180 days after the expiration of the time for filing the appeal. However, since Burke was sentenced prior to the date of the amendment, he had one year from the date of said amendment.

      .It is of interest to note that not only does Stacey fail to offer any evidence of how his alleged impairment was unknown or undis-coverable to him during the three-year time period, but counsel during oral argument was unable to offer any evidence of a change in Stacey’s mental health since that time such that he has now become aware of his "ongoing mental incapacity.”