author: Justice NOBLE.

text:
    FOX TROT PROPERTIES, LLC, Appellant, v. Hon. Samuel T. WRIGHT, III, Judge, Letcher Circuit Court and DLX, Inc., Real Party in Interest, Appellees.
    No. 2009-SC-000329-MR.
    Supreme Court of Kentucky.
    June 17, 2010.
    Jason Michael Colyer, Michael Ray Eaves, Sword, Floyd & Moody, PLLC, Richmond, KY, Counsel for Appellant.
    Hon. Samuel T. Wright, III, Judge, Letcher Circuit Court, Whitesburg, KY, for appellee, Hon. Samuel T. Wright, III.
    Wayne Frederick Collier, Shelby C. Kinkead, Jr., Kinkead & Stilz, PLLC, Lexington, KY, Daniel Fayne Dotson, Whitesburg, KY, Counsel for Real Party in Interest, DLX, Inc.
   Opinion of the Court by

Justice NOBLE.

Appellant, Fox Trot Properties, LLC, appeals to this Court from an order of the Court of Appeals denying its petition for a writ of prohibition. For the reasons set forth below, the order of the Court of Appeals is affirmed.

I. Background

This case involves an order of the Letch-er Circuit Court staying the enforcement of its own judgment. In 1995, the court entered default judgment against DLX, Inc., the real party in interest, for $312,284.40. This judgment was then assigned to Appellant, Fox Trot Properties, LLC, in 2004.

The only asset DLX has which could satisfy the judgment is an 82-acre tract of land in Estill County. This land has been subject to substantial litigation in Estill Circuit Court, Letcher Circuit Court, and U.S. Bankruptcy Court, all relating to Fox Trot’s failed attempts to claim ownership of the tract, its placing clouds of title over the tract, and its attempts to force a sale of the tract to satisfy the judgment. This litigation has been going on from at least 2001 until at least 2008.

Based on this protracted litigation, DLX moved the Letcher Circuit Court in 2008 for partial relief from the judgment under CR 60. DLX claims that it should not have to pay full post-judgment interest because the only reason it has not yet satisfied the judgment is that Fox Trot has prevented the sale of the 82-acre tract through its many lawsuits. This is based on the equitable concept that a debtor does not owe interest during the period when the creditor prevents payment.

The Letcher Circuit Court ordered the parties to brief the motion and that Fox Trot be “stayed from any further actions to enforce the judgment until the issues have been fully briefed, presented and ruled upon by the Court.” In response, Fox Trot filed a writ of prohibition in the Court of Appeals, asserting that the Letch-er Circuit Court did not have jurisdiction to stay enforcement of its judgment while it considered DLX’s motion.

The Court of Appeals denied the writ. Fox Trot appealed to this Court as a matter of right. Ky. Const. § 115.

II. Analysis

A. Availability of the Writ

“[Wjrits of prohibition ... are extraordinary in nature, and the courts of this Commonwealth ‘have always been cautious and conservative both in entertaining petitions for and in granting such relief.’ ” Kentucky Employers Mut. Ins. v. Coleman, 236 S.W.3d 9, 12 (Ky.2007) (quoting Bender v. Eaton, 343 S.W.2d 799, 800 (Ky.1961)). A writ for prohibition may be issued if the lower court is (1) acting outside its jurisdiction and there is no remedy through an application to an intermediate court, or (2) acting erroneously within its jurisdiction, great and irreparable harm would result, and there would be no adequate remedy by appeal. Hoskins v. Maride, 150 S.W.3d 1, 10 (Ky.2004).

B. Jurisdiction to Issue the Stay

Fox Trot first argues it is entitled to the writ because the Letcher Circuit Court acted outside its jurisdiction by staying the enforcement of its own judgment. The basis of this claim is that the stay affects enforcement proceedings against the 82-acre tract, which is in another county. This Court disagrees that this deprives the Letcher Circuit Court of jurisdiction over its own judgment.

The power of the court to stay enforcement of the judgment in this case comes from CR 62.01. That rule provides:

In its discretion and on such conditions for the security of the adverse party as are proper, the court may stay the execution of or any proceedings to enforce a judgment pending the disposition of a motion for relief from a judgment or order made pursuant to Rule 60.

This is precisely what happened here. DLX requested relief from the judgment under Rule 60. Its motion specifically cites CR 60.03, which gives the court the power “to relieve a person from a judgment ... on appropriate equitable grounds.” It can also be reasonably construed as a request for relief under CR 60.02(f), which gives the court the power to “relieve a party ... from its final judgment” for “any other reason of an extraordinary nature justifying relief.” The motion cites, and clearly requests, relief under CR 60. Under CR 62.01, then, it was within the court’s discretion to stay enforcement until it could rule on the motion.

The court had jurisdiction to do so. In fact, the only court with jurisdiction to stay enforcement of a judgment is the court which rendered that judgment — in this case, the Letcher Circuit Court. This has long been the rule in Kentucky. KRS 454.080 provides that:

An injunction to stay proceedings on a judgment shall not be granted ... in any other court than that in which the judgment was rendered. Nor shall such injunction be granted, unless the party applying therefor make affidavit that no injunction has been previously granted to stay the proceedings on such judgment.

This statute was enacted in 1952, and it is a verbatim recodification of Section 285 of the Civil Code of Practice, which dates back to the nineteenth century. Kentucky courts have long recognized that this language means “[t]he court in which the judgment was rendered alone had the jurisdiction to enjoin it.” McConnell v. Raive, 8 Ky. L. Rptr. 343, 1 S.W. 582, 582 (1886) (citing Section 285 of the Civil Code of Practice; Neeters v. Clements, 75 Ky. (12 Bush) 359 (1876); Davis v. Davis, 73 Ky. (10 Bush) 274 (1874)).

This rule ensures

that comity prevails among the various trial courts of the state. Orderly procedure and proper respect for courts requires that attacks upon their judgment should be made in the court rendering the judgment, rather than in other courts indiscriminately. Indeed, it would be unseemly for courts in one county to seek to control execution on a judgment validly entered in another jurisdiction.

30 Am.Jur.2d Executions and Enforcement of Judgments § 328 (2005) (footnotes omitted). “Thus, a judgment debtor must, if it has an adequate basis for doing so, request the court in the county in which the judgment was entered to stay execution.” Id. This is what DLX did.

Fox Trot argues that the Letcher Circuit Court lacked jurisdiction to issue the stay because the court’s order affected its attempts to enforce the judgment against the 82-acre tract, which happens to lie in Estill County. This argument fails, however, because this Court has consistently applied the same rule for cases involving enforcement actions against real estate in other counties. In summarizing previous cases interpreting the language now in KRS 454.080, the Court said:

In Kelly v. Kelly, [63 Ky. (2 Duv.) 363 (1866) ], it was held that, notwithstanding the note on which judgment was rendered was given for land ..., nevertheless it could be enjoined by no other than the quarterly court in which the judgment was rendered.... In Neeter [Neeters] v. Clements, [75 Ky. (12 Bush) 359 (1876) ], it was held that, even when ... an execution had been issued by the clerk of the circuit court, on a judgment of the quarterly court, and levied on real estate, the circuit court had no jurisdiction to enjoin such execution, the power to do so being alone in the court that rendered the judgment; and it was so decided at the present term of this court in McConnell v. Raive, [8 Ky. L. Rptr. 343, 1 S.W. 582, 582 (1886) ] ... where the same question was presented.

Chesapeake, Ohio & Sw. R.R. Co. v. Reasor, 84 Ky. 369, 1 S.W. 599, 600, 8 Ky. L. Rptr. 374 (1886).

Thus, the Letcher Circuit Court had the jurisdiction to stay enforcement of its own judgment. The Letcher Circuit Court entered the original judgment; DLX filed a motion, in Letcher Circuit Court, to modify this judgment under Rule 60; the Letcher Circuit Court then ordered briefing and temporarily stayed enforcement of its judgment, under CR 62.01, until it could rule on the motion. This is precisely what KRS 454.080 and prior Kentucky cases allow. See, e.g., McConnell, 8 Ky. L. Rptr. 343, 1 S.W. at 582. There is no valid reason to depart from such clear precedent, and this Court declines to do so.

C. DLX’s Underlying Motion

Fox Trot also attacks DLX’s underlying motion. First, it argues that the relief DLX requested, which it says may be “charitably characterized” as a motion under CR 60.02(f), would not “constitute the kind of ‘unusual circumstances’ justifying relief’ under that rule. But that is for the Letcher Circuit Court to decide when it rules on the motion. Only the temporary stay of enforcement is before this Court. This Court cannot issue a writ of prohibition to address the merits of a motion that has not been decided by a lower court.

In addition, Fox Trot argues that DLX’s motion was untimely. Although a CR 60.02(f) motion must be “made within a reasonable time,” and this “is a matter that addresses itself to the discretion of the trial court,” Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky.1983), this Court has held that this decision “should be subject to limited jurisdictional review.” Asset Acceptance v. Moberly, 241 S.W.3d 329, 331 (Ky.2007). However, as the trial court has not actually granted CR 60.02(f) relief or made any determination as to timeliness, there is nothing yet to review. It would be inappropriate to address this issue first-hand through a writ action, especially as Fox Trot makes no compelling argument that the motion was not made within a reasonable time.

III. Conclusion

In sum, Fox Trot has failed to show why it is entitled to the extraordinary relief it requests. It stresses that “Letcher County [has] no jurisdiction over a lawsuit filed in Estill County” or “over an Estill County proceeding.” However, the Letcher Circuit Court has jurisdiction to entertain motions for relief from its own judgment and to stay enforcement of its own judgment while it considers such motions. That is all that occurred in this case. Fox Trot’s other arguments, as to why DLX’s motion should be denied, can be raised and fairly addressed in the Letcher Circuit Court.

For the foregoing reasons, the order of the Court of Appeals denying Fox Trot’s petition for a writ of prohibition is affirmed.

All sitting. All concur.


source: Caselaw Access Project

license: Public Domain

text:
    Cara SAJKO, Appellant, v. JEFFERSON COUNTY BOARD OF EDUCATION; Jefferson County Schools; and Stephen Daeschner, Superintendent, Appellees.
    No. 2009-SC-000021-DG.
    Supreme Court of Kentucky.
    June 17, 2010.
    Jeffrey Scott Walther, William Scott Hunt, Walther, Roark & Gay, PLC, Lexington, KY, Counsel for Appellant.
    Byron Edward Leet, Lisa Catherine De-jaco, Sara Christine Veeneman, Wyatt, Tarrant & Combs, LLP, Louisville, KY, Counsel for Appellees.
   Opinion of the Court by

Justice NOBLE.

This case presents a question of interpretation of a notice provision in KRS 161.790(3), which governs dismissal proceedings against public school teachers. The provision requires a teacher wishing to challenge her dismissal to “notify” and “give notice” to two school officials of her intention to do so within ten days of receiving the required letter notifying her of the dismissal. If notice is timely, then the teacher gets an administrative hearing. Otherwise, the dismissal is effective by operation of KRS 161.790(8) on the tenth day. The specific question before us is whether the timing statute is satisfied by the mailing, rather than receipt, of the teacher’s notice within the ten days.

This Court holds that the statute requires receipt. Therefore, the Court of Appeals is affirmed in part and reversed in part and this matter is remanded to the administrative tribunal for further findings of fact as to the date of Appellant’s receipt of her dismissal letter.

I. Background

A. Statutory Framework

Before getting into the facts of this case, a short description of the dismissal process will prove useful as a framing device. The termination process is laid out in KRS 161.790. Subsection (1) of the statute states that a teacher’s contract shall remain in effect except for good cause, which includes insubordination and conduct unbecoming a teacher, among other things. When a superintendent decides to dismiss a teacher for cause, he must detail in writing the charge against the teacher supporting the termination. KRS 161.790(3). The same subsection then includes the following language, which is the crux of this case: “The teacher may within ten (10) days after receiving the charge notify the commissioner of education and the superintendent of his intention to answer the charge, and upon failure of the teacher to give notice within ten (10) days, the dismissal shall be final.” KRS 161.790(3).

“Upon receiving the teacher’s notice of his intention to answer the charge, the commissioner of education shall appoint a three (3) member tribunal” out of a pool of pre-qualified and trained members to hear the matter. KRS 161.790(4). The hearing on the matter “shall begin no later than forty-five (45) days after the teacher files the notice of intent to answer the charge.” Id. (emphasis added). The tribunal is the trier of fact in the case. KRS 161.790(6). It operates by majority vote and must render its decision no later than five days after the hearing. KRS 161.790(7). In addition to the three-person tribunal, the commissioner also appoints a hearing officer, who handles dispositive prehearing motions, KRS 161.790(5), and who shall preside at the hearing to rule on procedural matters, KRS 161.790(6). Basically, the hearing officer is an attorney who acts as the judge in the matter and the tribunal serves as the jury.

B. Factual and Procedural Background

This case arises from a hearing under this statutory scheme in which the Appellant, Cara Sajko, challenged the termination of her employment as a science teacher at Male Traditional High School in Jefferson County. The superintendent of the Jefferson County Schools had sought to terminate Appellant’s employment because of numerous alleged incidents of insubordination and conduct unbecoming a teacher that had led to multiple written reprimands and warnings and two suspensions. The superintendent informed Appellant of his intention to terminate her employment by a letter dated March 28, 2005, which detailed the history of alleged incidents.

The letter was hand-delivered to Appellant’s home. According to the person who delivered the letter, Appellant received it the same day, March 28. According to Appellant’s collective bargaining representative, Appellant admitted that she received the letter on March 28. Appellant, however, has denied that she received the letter that day.

Appellant employed an attorney on April 6. Her counsel claimed that he tried to contact the general counsel for the Jefferson County Schools that day and the next, but the general counsel was out of the office. After business hours on April 7, Appellant’s counsel faxed to the general counsel’s office a copy of a letter giving notice under KRS 161.790(8) of Appellant’s intention to answer the charges against her. Copies of this letter were also mailed to the Schools’ counsel and the Commissioner of Education that same day, but they were not received until April 8. It is the letter to the commissioner that is at issue in this case.

Prior to the hearing on the matter, the Schools moved to dismiss on the ground that Appellant’s notice of her intention to answer the charges was untimely because she did not “within ten (10) days after receiving the charge notify the commissioner of education and the superintendent of [her] intention to answer the charge,” KRS 161.790(3), and that as a result the dismissal became final by operation of law, since “upon failure of the teacher to give notice within ten (10) days, the dismissal shall be final,” id.

The hearing officer declined to decide whether the notice was received by the commissioner within ten days, in part by not making a factual finding as to when the Appellant received the letter. He did, however, note that affidavits from the person who delivered the letter and Appellant’s own collective bargaining representative indicated that Appellant received the letter on March 28. He also noted that Appellant denied these claims. He then stated, “If recognition of this day [March 28] results in a ruling that petitioner gave her notice one day late, then a preliminary evidentiary hearing would need to be held regarding Petitioner’s denial of the affidavit assertions.”

The hearing officer went on to deny the motion. He held that KRS 161.790(3) was ambiguous as to whether the notice it required had to be received by the superintendent and commissioner within ten days or simply put in the mail. After examining various policies apparent from the statute, he decided that under the statute, “teachers should be permitted to mail.. .their protest of a superintendent’s disciplinary action on the tenth day after receiving the charges.” Because there was no question that the notice was at least mailed within ten days, the officer held it was timely filed and allowed the matter to proceed to a hearing before the tribunal.

The hearing lasted eight days, during which thirty witnesses, including the Appellant, testified. The tribunal concluded that the Appellant was not guilty of conduct unbecoming a teacher but was guilty of insubordination. The tribunal also found that the Appellant used inappropriate teaching methods, including berating and demeaning her students, ignoring parents’ concerns, and failing a large number of students. Based on these findings, the tribunal concluded that the superintendent’s decision to terminate the Appellant’s employment was appropriate and affirmed the decision, in effect, reaching the same result as if she had not timely filed her notice but with the added right of judicial review of the decision on the merits.

Both sides sought review by the Jefferson Circuit Court, which upheld the tribunal’s decision in all respects. As to the issue currently before this Court, the circuit court found that the superintendent’s letter was delivered on March 28 and that the notice in response was due April 7, but that there was “no basis to reverse the tribunal’s determination” and that the “tribunal was within its statutory authority to accept and hear Sajko’s appeal in the manner it stated.”

The Court of Appeals affirmed and upheld the dismissal also, albeit for different reasons than the circuit court. Rather than addressing the merits of Appellant’s claims, the Court of Appeals addressed only whether the notice of Appellant’s intention to answer the charges against her was timely filed. The court concluded that the superintendent’s letter had been hand-delivered to the Appellant on March 28. The court also held that KRS 161.790(3) required that the notice be received within the ten-day period. Because the notice was not received by the commissioner until the eleventh day, the court concluded that the notice was untimely and the tribunal therefore had no jurisdiction to hear the matter and the dismissal would therefore stand by operation of law.

This Court granted discretionary review to decide whether the tribunal erred in holding that KRS 161.790(3) does not require receipt of the notice within ten days of the teacher’s receipt of the superintendent’s letter of dismissal.

II. Analysis

Appellant’s argument is premised on the claim that the statute is ambiguous as to whether mailing or receipt is necessary to invoke the administrative tribunal’s jurisdiction. This claim was in fact the predicate for the hearing officer’s decision. However, though the case law in Kentucky addressing this issue is sparse and not directly on point, there is a clear majority rule for interpreting notice language like that in this statute. In light of this rule, this Court cannot conclude that the statute is ambiguous. A review of Kentucky’s case law and the law in other jurisdictions establishes that the terms “give notice” and “notify” have a commonly understood meaning and therefore are not ambiguous.

The parties have cited only one case from Kentucky’s courts, Energy Regulatory Commission v. Kentucky Power Co., 605 S.W.2d 46 (Ky.App.1980), interpreting similar language. This Court’s independent research has revealed one other case, Chambers v. City of Newport, 101 S.W.3d 904, 906 (Ky.App.2002), which mentions the issue in dicta.

In Kentucky Power Co., the court was tasked with interpreting KRS 278.410(1), which governs actions for review of administrative decisions by the Energy Regulatory Commission. The statute requires that “[njotice of the institution of such action shall be given to all parties of record.” Rather than serving a copy of the complaint on the Attorney General, who was a party at the administrative hearing, the Kentucky Power Co. simply notified his office by letter. The court noted that the “better practice” would be to name the Attorney General in the complaint itself, but that “[t]he minimum requirement is service of a copy of the complaint on all parties of record before the Commission.” Kentucky Power Co., 605 S.W.2d at 51. The court then went on to state:

KRS 278.410(1) requires the giving of notice, that is actual notice, at least the receipt of a letter. There are striking similarities between the Kentucky statute and the case of Baldwin v. Fidelity Phenix Fire Ins. Co. of New York, 260 F.2d 951 (6th Cir.1958). In that case written notice was required with the necessary implication of receipt or delivery. We believe that it is not the sending but the receipt of a letter that constitutes true notice. 66 C.J.S. Notice § 18.
The Consumer Protection Division of the Attorney General’s Office became a party to the proceedings at the administrative level and as such is a necessary party in the reviewing process. It behooves those who seek review of administrative agencies to include all necessary parties when an appeal is undertaken. It is their responsibility to give notice by means of the issuance of summons of process, or to demonstrate by other concrete evidence the receipt of notice, so that all proper parties are fully apprised before the reviewing court and in position to participate in the entire appellate proceedings. A certificate or affidavit of sending notice falls short.

Id. at 51-52 (emphasis added).

The case is certainly not directly on point regarding the issue currently before this Court, since it did not involve a question of timing of the notice. Moreover, the quoted language is arguably dicta, since the court was reversing for other reasons (namely, because the commission had failed to make findings of fact in support of its decision). Nevertheless, the opinion seems quite clear that language like “notice shall be given” requires receipt of the notice, not just mailing.

This is especially clear when reviewing Baldwin, on which the Court of Appeals relied. Baldwin interpreted language in an insurance contract stating that “written notice shall be given.” The Sixth Circuit read that language as follows:

We cannot agree with appellants’ contention that the notice is effective if mailed but not received. Notice by mail may have been, and doubtless was, contemplated under the policy, although personal notice of the happening of an accident was not excluded. However, the term “written notice shall be given” carries with it the implication of receipt or delivery. As pointed out in Rapid Motor Lines, Inc., v. Cox, 134 Conn. 235, 56 A.2d 519, 521, 175 A.L.R. 296 [ (1947) ], “One meaning of the verb ‘give’ is [... ] ‘to deliver or transfer; to [... ] handover.’ ” See Webster’s New International Dictionary, Second Edition, definitions of the word ‘give.’ As declared in the McSparran [Fairfield Packing Co. v. Southern Mut. Fire Ins. Co.] case, supra, 193 Pa. [184] 191, 44 A. [317] 318 [ (1899) ], “Notice is knowledge or information legally equivalent to knowledge, brought home to the party notified in immediate connection with the subject to which the notice relates. It is not, therefore the sending, but the receipt, of a letter that will constitute notice [...].” Cf. 66 C.J.S. Notice § 18, p. 663.

Baldwin, 260 F.2d at 953-54 (emphasis added).

The only other Kentucky case that this Court’s research has revealed on this topic is Chambers v. City of Newport, 101 S.W.3d 904 (Ky.App.2002). The court was tasked with deciding whether the prospective running of time was keyed to mailing or receipt of notice, where the statute in question, KRS 91A.270(1), stated that a landowner had to file a complaint within 30 days of “the mailing” of a notice to him. The court held that mailing was the key under that statute. It distinguished Kentucky Power Co., basically recognizing a distinction between the mailing and the giving of notice and stating,

Contrary to appellants’ contention, a different conclusion is not compelled by Energy Regulatory Commission v. Kentucky Power Co. In that case, the court merely indicated that if the running of time is calculated from the service of notice, “it is not the sending but the receipt of a letter that constitutes true notice.” Similarly, a different result is not compelled by CR 6.05, which also pertains to the calculation of time “after the service of a notice” rather than after the mailing of the notice as here.

101 S.W.3d at 906 (citations omitted).

None of these cases is directly on point or directly binding on this Court’s decision. However, they are persuasive authority. They appear to be the only authority in this jurisdiction on the topic, and all point toward distinguishing between mailing and receipt and reading the language in the teacher dismissal statute as requiring the latter.

This interpretation is consistent with the majority rule in interpreting similar language, which is that “[generally, the law requires that notice be actually received in order to be effective.” 66 C.J.S. Notice § 20 (2009). The specific discussion about receipt of notice in C.J.S. expands on this notion:

A method of service of notice which is prescribed by statute must be followed. In such a case, the statute generally must be strictly complied with, especially where the notice affects property rights or where it is to form the basis of a suit. On the other hand, requirements as to notice are liberally construed where the method of giving notice is not prescribed.
Nonetheless, where the giving of notice is required without provision as to the method, actual notice is essential. Moreover, in the absence of a statute providing otherwise, notice, particularly notice to one at a specified place, is not given until it is received by the person to be notified. Thus, when a statute is silent as to how service is to be effectuated, written notice is deemed given only upon receipt.
Any of the various methods of service may be effective, provided that the notice is actually received on or before the prescribed deadline. Hand delivery is not the only constitutionally acceptable mode of serving notice; according to some authority, service of notice may be made by affixing a copy to the front door of the usual place of abode of the person who is to be served if no person to whom a copy may be delivered is found there.

Id. § 22 (footnotes omitted, paragraph break added, emphasis added); see also 58 Am.Jur.2d Notice § 26 (2002) (“Where a statute requires notice to be given, but does not specify the type of notice, actual personal notice is required, and the notice must be personally served on the person to be notified.” (footnotes omitted)); id. § 80 (Where a statute requires that a notice must be served, the service must be personal, and, absent contrary language in a contract, proper service implies its receipt. When a statute requires that written notice be given, but does not specify how it must be given, the written notice is not effective until it is received. Any of the various methods of service may be effective provided the notice is actually received on or before the prescribed deadline ” (footnotes omitted, emphasis added)); id. § 33 (“[W]here a statute, rule, or contract merely states that written notice must be given, without stating how it is to be given, it is not enough that the notice is mailed. It must also be received. The effective date of the notice is the day it is received, rather than the day it is mailed.” (footnotes omitted, emphasis added))

The cases in other jurisdictions are even more explicit — especially in cases related to teacher dismissals. For example, in School Dist. RE-11J, Alamosa County v. Norwood, 644 P.2d 13 (Colo.1982), the Colorado Supreme Court addressed a statute that required a school seeking not to renew a teacher’s contract to “cause[ ] written notice ... to be given to said teacher on or before April 15.” The school in that case “argue[d] that the only reasonable meaning of the statutory words is that the mechanics of the giving of notice must be set in motion by April 15, and that the notice need not be received by the teacher by April 15.” Id. at 15. The court held that receipt was necessary for the notice to be effective, reasoning as follows:

It is the general rule that when a statute requires that written notice is to be given, but does not specify how it shall be given, the written notice is not effective until it is received. Thus, any of the various methods of service may be effective provided that the notice is actually received on or before the prescribed deadline. Although a statute may authorize service by mail which is generally held to be effective on the date of mailing, the mere mailing of a notice either by ordinary mail, or by certified or registered mail, unless specifically authorized by statute, is not effective until the notice is received. Here, when the school district’s effort to personally deliver the notice of non-renewal to Nor-wood at the high school failed, it elected to effect delivery to her by certified mail. In doing so it misdirected the notice and as a consequence the notice was not actually delivered until after the statutory deadline.

Id. at 15-16 (footnotes and citation omitted). The court distinguished another case involving late delivery of a notice where the person to whom notice was due was unavailable to receive it when service on him was attempted within the time period, holding an exception exists only “when a teacher frustrates the delivery by purposeful avoidance thereof.” Id. at 16.

The Supreme Court of Ohio has also held that receipt of the notice is necessary in a similar case. See State ex rel. Peake v. Board of Ed. of South Point Local School Dist., 44 Ohio St.2d 119, 339 N.E.2d 249 (1975). The court in that case addressed a statute that deemed a teacher to be automatically reemployed “unless the employing board ... gives such teacher written notice of its intention not to reemploy him on or before the thirtieth day of April.” Id. at 251. The teacher in that case received the notice on May 2, and the court held it was untimely and ineffective because “(w)here a statute requires notice of a proceeding, but is silent concerning its form or manner of service, actual notice will alone satisfy such requirement. .. .Thus it would appear that where, as in this case, certified mail was employed to attempt the required notice, it became effective only at the time it was received.” Id. (citations and quotation marks omitted, alteration in original).

The exception to this approach appears to be where the statute in question specifies the method of service. Where notice by mail is specifically authorized, deposit of the notice in the mail with a proper address and postage is sufficient. See 58 Am.Jur.2d § 32 (2002).

For example, when faced with interpreting the language in a contract saying “giving written notice thereof by mail to the other party,” the Kansas Court of Appeals has held that putting the notice in the mail is sufficient. See Macke Laundry Service Ltd. Partnership v. Mission Associates, Ltd., 19 Kan.App.2d 553, 873 P.2d 219, 222-24 (1994). In so holding, the court distinguished the case from another in which the notice provision was silent as to the method of service to be used and required receipt. The court ultimately settled on the following rule:

“Where a statute or rule merely states that written notice shall be given, ordinarily mailing a notice is not alone sufficient; the notice must be received. When, however, a statute or rule does not merely state that written notice shall be given but also states that it may be given by mail, service is ordinarily accomplished by depositing the notice in the mail properly addressed and stamped.”

Id. at 224 (quoting Liberty Mut. Ins.Co. v. Caterpillar Tractor Co., 353 N.W.2d 854, 857 (Iowa 1984)).

At least one other state appears to have a broader rule, so that where mail is merely an allowable means of service (rather than the sole prescribed method), receipt is not necessary for a notice to toll a time limitation period. See Lindsey v. South Carolina Tax Com’n, 323 S.C. 57, 448 S.E.2d 577, 578 (S.C.App.1994) (“Where service by mail is permitted, it is complete when the document is deposited with the United States Postal Service, properly addressed with sufficient postage.”). However, the statute in question specifically stated that mailing was one of two allowable methods of service of notice (the other being personal service), rather than leaving the method open, as in the case before this Court. Thus, it is arguable that the statute in Lindsey could fall under the rule expressed in Macke Laundry Service Ltd. Partnership and Liberty Mutual Insurance Co. described above. Given that same court’s decision in another case where the notice provision was silent as to the method, this seems likely, especially since the other case relied in part on Norwood and Liberty Mutual Insurance Co. See Cincinnati Ins. Co. v. South Carolina Second Injury Fund, 297 S.C. 372, 377 S.E.2d 130, 131 (S.C.App.1989) (“In the absence of binding authority, we adopt the well-recognized rule most recently stated by the Colorado Supreme Court: It is the general rule that when a statute requires that written notice is to be given, but does not specify how it shall be given, the written notice is not effective until it is received.’ School District Re-11J, Alamosa County v. Norwood, 644 P.2d 13, 15 (Colo.1982); accord, Liberty Mut. Ins. Co. v. Caterpillar Tractor Co., 353 N.W.2d 854 (Iowa 1984). Counsel for Cincinnati Insurance has cited no case from any state holding to the contrary.” (some citation omitted)).

These cases outline a consistent rule, or at least a clear majority rule. Where a statute uses language requiring the giving of notice and does not specify a means, receipt of the notice is necessary.

This Court agrees that the majority rule is appropriate in light of the statutory language. The notice provision before this Court does not specify the method of delivery. Thus, while mail would be an allowable method, it is not required; nor is it one of a limited number of methods prescribed under the statute. The notice can be given by other legally recognized means, including hand delivery (as was accomplished by the Schools in this case) or facsimile (as was accomplished as to the superintendent in this case). In fact, the statute does not even require written notice, so arguably a telephone call or email would suffice, though we need not so hold to decide this case.

Basically, the generic notice statutes and requirements — that is, those that do not spell out receipt or the method of notice to be employed — are interpreted in a light most favorable to the person to whom notice is due. The policy behind this approach is that a person should be able to rely on the statutory time period and is thus entitled to repose if no timely notice is received.

The notice in this case was due to the superintendent and the commissioner, not to Appellant. (In fact, she had already received the notice due to her and there is no question she received it.) If the notice is not timely, the superintendent does not have to prepare a defense of the dismissal decision and the commissioner does not have to set the hearing machinery into motion. Both officers, then, have a legitimate interest in repose. Thus, when interpreted in a light most favorable to the superintendent and commissioner, delivery to both is necessary to comply with the statute.

Additionally, requiring receipt — and making that a bright line rule — serves important policy interests unique to the field of education. When a superintendent decides to dismiss a teacher, time is of the essence.

Frequently, such dismissals will come at or near the end of the school year, so that any challenge by the teacher can be addressed over the summer break and before the next school year starts. The approximate two-month gap between school years offers little time to hold the hearing to determine whether a teaching position will be vacant and need filling by the beginning of the next year. This concern explains why the teacher has such a short period of time to give notice to begin with.

Where, as in this case, the dismissal comes in the middle of a semester, time is even more important. A teacher can be suspended immediately, pending final action on the dismissal. See KRS 161.790(8). A superintendent could go ahead and hire a new teacher to fill the position, but this would court disaster as the tribunal could reverse the superintendent’s decision. Most likely, rather than hiring a new, permanent teacher, the superintendent would rely on substitute teachers until the dismissal was finalized; otherwise he runs the risk of having hired a teacher who no longer has a position in the case of a reversal. Yet, reliance on substitute teachers for an extended period of time is not ideal. Thus, the shorter the period until a finalized decision, the better. A strict notice requirement would foster the valid interest in arriving at a decision quickly, either by shortening the period of uncertainty (as to whether the teacher will challenge or whether the superintendent’s decision will be upheld) or by lessening the number of challenges, since late ones cannot be pursued at all.

Appellant argues that such a strict compliance rule is unfair, at least to a person like a teacher as an unsophisticated participant in the combined administrative and judicial systems. She notes that the parties in other Kentucky cases discussed above are sophisticated business entities like energy or insurance companies, and thus treating “unsophisticated” teachers differently would be just. Yet, sophistication and knowledge of the law does not somehow give corporations the ability to better understand ambiguous statutory language, which is exactly what Appellant claims exists in KRS 161.790. And as the cases from other jurisdictions show, the strict rule is frequently applied even to cases involving teachers.

She also argues that the Court should construe the statute liberally, thereby allowing her claim, out of sheer fairness. But because the right to challenge the dismissal is a statutorily created administrative right, strict compliance and construction of the enabling statute is required. See Board of Adjustments of City of Richmond v. Flood, 581 S.W.2d 1, 2 (Ky.1978) (“There is no appeal to the courts from an action of an administrative agency as a matter of right. When grace to appeal is granted by statute, a strict compliance with its terms is required. Where the conditions for the exercise of power by a court are not met, the judicial power is not lawfully invoked. That is to say, that the court lacks jurisdiction or has no right to decide the controversy.”); Metro Medical Imaging, LLC v. Commonwealth, 173 S.W.3d 916, 917 (Ky.App.2005); Kentucky Unemployment Ins. Com’n v. Providian Agency Group, Inc., 981 S.W.2d 138, 139 (Ky.App.1998).

This, however, does not entirely resolve this case. Though the circuit court and Court of Appeals both assumed that Appellant received her dismissal letter on March 28, no finding of fact was ever made in that regard by the hearing officer. In fact, the hearing officer expressly declined to make such a finding of fact and noted that if the case turned on the date of receipt of that letter, a further evidentiary hearing would be necessary. He proceeded on the legal theory that notice was effective upon mailing, which this Court has now found to be error. Neither the circuit court nor the Court of Appeals, as reviewing courts in this instance, were equipped or allowed to make a factual finding about Appellant’s receipt of her dismissal letter. Consequently, the date Sajko received her dismissal letter is a crucial fact in determining if her notice of intention to challenge her dismissal was timely. The appropriate remedy in such a case is to remand the case to the tribunal and hearing officer to make the necessary factual finding.

If, on remand, the hearing officer finds that Sajko received her dismissal letter one day later than March 28, 2005, then as a matter of law, receipt would be timely, leaving only the merits appeal which the Court of Appeals did not address. In that event, the action would return to the Court of Appeals for a ruling on the merits of her appeal.

III. Conclusion

This Court therefore holds that KRS 161.790(3) requires receipt of the teacher’s notice within the ten-day period. This Court, however, cannot determine whether Appellant complied with the statute because there is a question of fact about when the ten-day period began running. Thus, the judgment of the Court of Appeals is affirmed in part and reversed in part, and this matter is remanded to the administrative tribunal and hearing officer to make the necessary findings of fact and for any further proceedings consistent with this Opinion that may be necessary.

All sitting. All concur.

      . For an extended discussion of how the process works, and how it has changed since the enactment of KERA, see generally Fankhauser v. Cobb, 163 S.W.3d 389 (Ky.2005).

      . Ordinarily, the hearing officer's determination of the meaning of the statute would be accorded so-called "Chevron deference” and would be binding on the courts so long as it is reasonable. See Louisville/Jefferson County Metro Government v. TDC Group, LLC, 283 S.W.3d 657, 661 (Ky.2009). Because the statute is not ambiguous, such deference is not appropriate in this case.

      . This case does not present the related questions of whether constructive receipt or where the recipient of the notice is unavailable are sufficient to satisfy the notice statute. However, the cases from other jurisdictions indicate that such notice is normally effective, even when actual receipt does not occur within the prescribed timeframe.

      . That this case has come all the way to this Court and yet still cannot receive a final determination demonstrates the importance of making factual findings at the administrative level. While perhaps understandable, the hearing officer’s attempt to avoid the question by resorting to interpreting the statute in a broad manner, has had the effect of undermining judicial economy.


author: TAYLOR, Judge.

text:
    William DESKINS d/b/a Deskins and Son Construction, Appellant, v. Irene ESTEP; Johnny Ramsey; and Timothy Ling, Appellees.
    No. 2007-CA-000514-MR.
    Court of Appeals of Kentucky.
    May 7, 2010.

      Ned Pillersdorf, Joseph Lane (argued), Prestonsburg, KY, for appellant.
    Marrs Allen May (argued), Pikeville, KY, for appellees.
    Before MOORE, TAYLOR, and THOMPSON, Judges.

      . The complaint and judgment on appeal identify the appellee as Irene Estep. The notice of appeal appears to have misspelled Ms. Estep’s last name as Stepp. For purposes of this opinion, she shall be referred to as Estep.

   OPINION

TAYLOR, Judge.

William Deskins d/b/a Deskins and Son Construction brings this appeal from a February 19, 2007, Judgment of the Pike Circuit Court awarding Irene Estep, Johnny Ramsey, and Timothy Ling, appellees herein, damages in the amount of $436,787.66 arising from breach of a construction contract and in conjunction with a default judgment for liability previously rendered by order entered January 12, 2007. For the reasons hereafter stated, we reverse and remand with directions.

I. BACKGROUND

Deskins is resident of West Virginia, where he owns and operates a construction business. In February 2006, Deskins was contacted by appellees in regard to the construction of two residential dwellings on real property alleged to be owned by appellees located in Pike County, Kentucky. An agreement was subsequently entered into by the parties whereupon Deskins would construct one residence in a “turn-key condition” for the price of $50,000 and construct a second house “in the dry” for the sum of $70,000. Apparently, a dispute arose between the parties at some point during the construction and neither house was completed.

On September 20, 2006, appellees initiated this action in the Pike Circuit Court seeking damages against Deskins for alleged breach of the construction contract. Jurisdiction was exercised over Deskins pursuant to Kentucky’s long-arm statute, Kentucky Revised Statutes (KRS) 454.210. As required by the statute, the Secretary of State mailed a copy of the summons and complaint to Deskins at his address listed in the complaint by certified mail, return receipt requested. The postal service made three attempts to deliver the complaint to Deskins without success, whereupon the summons and complaint were returned to the Secretary of State. On October 25, 2006, the Secretary of State made its statutorily required return and notice to the Pike Circuit Court showing that the acts contemplated by the statute had been performed as required of the Secretary of State, who, by law, is deemed the statutory agent for Deskins in this litigation. In accordance with KRS 454.210, the summons was deemed to be served on Deskins upon return of the Secretary of State and the action proceeded accordingly. Deskins did not respond to the complaint. On January 3, 2007, appel-lees filed a motion for default judgment pursuant to Kentucky Rules of Civil Procedure (CR) 55.01. Subsequently, on January 12, 2007, an order was entered granting the default judgment for liability only and further scheduling a hearing on damages for January 26, 2007. On January 25, 2007, the court, sua sponte, rescheduled the hearing on damages to February 16, 2007, at 10:00 a.m.

On the morning of February 16, 2007, the case was called by the Pike Circuit Court for a hearing on damages as scheduled. Deskins appeared at this hearing and indicated to the court that he was without knowledge that a default judgment had been entered against him and that further he was without knowledge of the claims in this action. Although it can not be determined from examination of the record, it appears Deskins was mailed by the circuit clerk, at his address listed in the complaint, a copy of the order dated January 25, 2007, rescheduling the hearing for February 16, 2007. The court subsequently ordered from the bench that the evidentiary hearing would begin at approximately 2:00 p.m. later that afternoon. In the interim, Deskins filed with the circuit clerk a hand-written, pro se motion for another hearing date on the damages issue, effectively seeking a continuance at that time. He further stated in his request that he did not have knowledge of any prior hearings in this action.

The circuit court did not address Des-kins’ motion and conducted an evidentiary hearing on damages on the afternoon of February 16. At the conclusion of the hearing, the circuit court signed a judgment prepared by appellees’ counsel in favor of appellees in the amount of $436,787.66, that was subsequently entered in the record on February 19, 2007. This timely appeal follows.

II. ISSUE

The primary issue raised by Deskins is whether the circuit court properly entered a judgment for damages in this action after granting a default judgment against him for liability. Specifically, Deskins believes that his hand-written motion for continuance of the hearing — filed on the day of the hearing — was not properly considered by circuit court and the hearing otherwise should not have been conducted at that time.

Deskins also argues that the default judgment for liability against him should be set aside. Deskins contends that since the motion for default judgment was not served upon him, the judgment should not have been entered against him. This issue was properly brought before the circuit court by Deskins pursuant to a CR 60.02 motion that was filed after the notice of appeal was filed in this action. The Court of Appeals abated consideration of this appeal while the circuit court considered Deskins’ CR 60.02 motion. The circuit court entered an order dated July 9, 2009, denying Deskins’ CR 60.02 motion. In that order, the circuit court correctly noted that for purposes of this action, the Secretary of State was deemed the agent for service of process of the complaint for Deskins. See KRS 454.210. The record reflects that the Secretary of State performed the duties as required by KRS 454.210 and made the statutorily required return to the circuit court showing that the acts contemplated under the long-arm statute were complied with by the Secretary of State. Apparently, Deskins refused to accept the certified mail containing the summons and complaint on three occasions. When the Secretary of State made its statutorily required return to the circuit court, the time for answering the complaint by Deskins began to run. KRS 454.210(3)(b).

Under CR 55.01, there is no requirement that the motion for default judgment be served upon Deskins if he has not appeared in the action at the time the motion is filed. CR 55.01 does require that the attorney submit a certificate that no papers have been served upon him by the party in default. On review of the record, it appears appellees’ counsel complied with this certificate requirement upon filing the motion for default judgment. The circuit court properly entered default judgment for liability on January 12, 2007. The circuit court’s order entered July 9, 2009, denying relief from the default judgment has not been appealed and is otherwise not properly before this Court at this time. Regardless, Deskins has not presented a valid excuse nor shown good cause why the default judgment for liability should be set aside. Accordingly, we do not believe that the circuit court abused its discretion in granting a default judgment for liability against Deskins in this action or in denying the CR 60.02 relief from that judgment. Accordingly, our review in this appeal will be limited to a review of the judgment for damages entered by the circuit court against Deskins in this action.

Ill LEGAL ANALYSIS

At the hearing on damages on February 16, 2007, Deskins was hand served by a deputy sheriff a copy of the summons that had originally been issued when this action was commenced in the Pike Circuit Court. Deskins argues that this was the first notice that he had ever received of this proceeding and the circuit court should have conducted an evidentiary hearing to determine why he had not previously received notice of the litigation, arguing that the U.S. Postal Service may have made a mistake in attempting to deliver the original complaint and summons in this action. The record on appeal is meager at best. In reviewing the record, this Court cannot determine why a summons was hand served on Deskins at the hearing on February 16, 2007, but we must conclude that service thereon was of no consequence nor had any legal effect in this proceeding. Since Deskins apparently did receive a copy of the circuit court’s order scheduling the damages hearing on February 16, 2007, as evidenced by his appearance in the courtroom at the designated time, we find no error in the circuit court not continuing the hearing which was totally within the sound discretion of the court.

The damages hearing presents a more troublesome issue for this Court. The entire hearing lasted less than thirty-eight minutes. Only two witnesses testified for appellees, their purported expert, Terry Wallace, and appellee, Irene Estep. Wallace’s testimony on direct examination lasted less than four minutes. Deskins was permitted to make a pro se statement, under oath, to the court as his “testimony” in the action. At the conclusion of the hearing, appellees’ counsel presented a judgment to the judge which was signed at that time and subsequently entered on February 19, 2007.

CR 55.01 clearly contemplates that damages hearings in cases where a default judgment for liability has been entered should be evidentiary in nature to determine the amount of damages and establish the truth of any other allegations or evidence supporting the damage claim. Kentucky Courts have concluded that proceedings of this nature are governed by CR 52.01. Greathouse v. Am. Nat’l Bank & Trust Co., 796 S.W.2d 868 (Ky.App.1990). The provisions in CR 52.01 are mandatory and require the court to make specific findings of fact and separate conclusions of law before rendering a judgment. Brown v. Shelton, 156 S.W.3d 319 (Ky.App.2004). In this case, the circuit court made absolutely no findings of fact or conclusions of law which clearly precludes this Court from making any type of meaningful appellate review of the judgment entered in this action. This error alone constitutes sufficient grounds for this Court to reverse and remand the judgment entered February 16, 2007, for additional proceedings.

However, we do not believe that the errors in this proceeding end with just the failure to make findings of fact and conclusions of law. The complaint filed in this action clearly states that it is based upon a construction contract between Des-kins and appellees in this action. Any damages that follow are derivative of the terms and conditions of the construction contract. There is no construction contract attached to the complaint nor a part of the record in this case. Likewise, ap-pellees did not introduce a copy of the contract into evidence during the damages hearing. Deskins did present to the circuit court a copy of a contract he alleges he entered into with appellee, Timothy Ling, which Deskins described as a “cost-plus” agreement. Again, this agreement was not entered into the record by the circuit court at the hearing. When Des-kins cross-examined appellees’ expert, Terry Wallace, regarding the contract, Wallace stated he was not aware of any construction agreements between the parties. We find it incredulous that this expert could testify about damages regarding the construction contract when he was not aware of any terms or conditions pertaining to the contract.

Deskins also testified to the circuit court at the hearing that he had not entered into any construction contracts with Irene Es-tep, who was the only witness who testified on behalf of appellees at the damages hearing. Estep failed to acknowledge the existence of the contracts and on direct examination by Deskins, admitted that she had not entered into any construction agreements with Deskins. This Court is hard pressed to understand how Estep can assert a claim in a complaint alleging breach of contract damages when she is not a party to the contract. Even more perplexing is her admission at the hearing that she has no ownership interest in the property that is the subject matter of the litigation. Notwithstanding that a default judgment has been entered, the law still requires a legal basis to support a damages claim, and the record in this case fails to support the damage award. See How ard v. Fountain, 749 S.W.2d 690 (Ky.App.1988).

As concerns the alleged damages, Estep presented no evidence to support any of the damages claimed other than a summary schedule that had been prepared by her attorney and introduced as the only exhibit at the damages hearing. There was no supporting documentation or evidence introduced to support any of the alleged damages as set forth in the exhibit. Additionally, the testimony given by Estep contradicts the allegations in the complaint. For example, the house that was to be constructed in a “turn-key condition” was stated in the complaint to have a contract cost of $50,000 — yet Estep testified that it was to cost $105,000. As concerns the residence that was to be built “in the dry,” the complaint alleged that the cost of this residence was to be $70,000, while the damage claim exhibit listed a total cost of $112,000. There was no testimony given at the damages hearing nor is there any evidence in the record to address these discrepancies.

The next obvious error committed at the damages hearing involves the measure of damages that is applicable to this case. As noted, there is no supporting documentation for any of the damage claims asserted at the hearing, nor did the expert’s testimony support these claims. In Kentucky, the measure of damages for the defective performance of a construction contract is set out in Gray v. Mattingly, 399 S.W.2d 801 (Ky.1966). Therein, the Court stated:

In simple terms, the measure of damages is the amount that is reasonably necessary in order to make the building conform to the requirements of the contract, but in no event to exceed the difference, if any, between its market value as it should have been constructed and its market value as it was actually constructed.

Id. at 302 (quoting State Prop. & Bldg. Comm’n v. H.W. Miller Constr. Co., 385 S.W.2d 211 (Ky.1964)). A review of the record reveals absolutely no evidence that addresses the accurate measure of damages as required in this case. On remand, the circuit court is instructed to identify the existence of any construction agreements and their terms, and then apply the proper measure of damages to determine what damages, if any, have arisen from the alleged breach of the construction contract at issue in this litigation.

Finally, upon remand, the circuit court must also determine what mitigation of damages, if any, has occurred in this action. It is well-established that a party claiming damages for a breach of contract is obligated to use reasonable efforts to mitigate its damages occasioned by the other party’s breach. Davis v. Fischer Single Family Homes, Ltd., 231 S.W.3d 767 (Ky.App.2007). Estep did not testify as to what actions were taken to mitigate damages nor did the circuit court address this in rendering its judgment.

For the foregoing reasons, the Judgment of the Pike Circuit Court awarding damages to appellees is reversed and remanded with directions that the circuit court conduct an evidentiary hearing on damages consistent with this opinion.

ALL CONCUR.

      . The testimony at the hearing indicated that ''turn-key” meant that the house would be ready to live in upon completion of construction while "in the dry” meant that construction would only entail getting the house under roof.

      . Irene Estep testified that Timothy Ling was in jail and could not be present at the hearing.


author: NICKELL, Judge.

text:
    Mark YOUNG, Appellant, v. Cheryl YOUNG, Appellee.
    No. 2008-CA-000845-MR.
    Court of Appeals of Kentucky.
    May 21, 2010.

      Steven R. Dowell, Covington, KY, for appellant.
    Margo L. Grubbs, Covington, KY, for appellee.
    Before KELLER and NICKELL, Judges; LAMBERT, Senior Judge.

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

   OPINION

NICKELL, Judge.

Mark Young has appealed from the Kenton Circuit Court’s classification and division of his firefighter’s pension plan as a marital asset. He claims his un-vested defined benefits plan was exempt from division in a dissolution action by operation of KRS 61.690. He also claims the trial court improperly included premarital contributions in its award and utilized an incorrect method of dividing the pension.

Mark and Cheryl Young were married on October 29, 1989. Prior to and during the marriage, Mark was employed as a firefighter for the City of Covington, Kentucky, and contributed to a defined benefits plan administered by the Kentucky Employees Retirement System (KERS). Mark and Cheryl separated in November of 2003, and a dissolution of marriage action was commenced on December 1, 2003. A final decree dissolving the marriage was entered on December 12, 2005, and a partial separation agreement was entered the same day resolving all issues within the marriage except the division of Mark’s pension.

Following a series of motions and responses regarding the pension division, the trial court entered a supplemental judgment on April 8, 2008, concluding the pension was a marital asset subject to division. Finding Mark’s pension had not yet vested, the trial court found the delayed division method set forth in Poe v. Poe, 711 S.W.2d 849 (Ky.App.1986), was the most equitable method of dividing the pension and granted Cheryl “one-half of 194/240 months of service credit of [Mark’s] pension as of November 2, 2007, [Mark’s] 20th anniversary of plan participation.” This appeal followed.

Mark contends the trial court erred in finding his pension was a divisible marital asset because, at the time the divorce action was filed, KRS 61.690 prohibited courts from dividing firefighter pensions in dissolution actions. Further, he contends the trial court erroneously included premarital contributions and contributions during the two year period KRS 61.690 prohibited division of his pension. Finally, he contends the trial court erred in utilizing the delayed division method for calculating entitlement to benefits. We disagree with Mark’s allegations. However, we conclude the trial court used the wrong date when valuing Mark’s pension for division purposes.

A trial court’s ruling regarding the classification of marital property is reviewed de novo as the resolution of such issues is a matter of law. Heskett v. Heskett, 245 S.W.3d 222, 226 (Ky.App.2008). We review a trial court’s determinations of value and division of marital assets for abuse of discretion. Armstrong v. Armstrong, 34 S.W.3d 83, 87 (Ky.App.2000) (quoting Duncan v. Duncan, 724 S.W.2d 231, 234-35 (Ky.App.1987)).

KRS 61.690 protects retirement accounts of Kentucky employees from “execution, attachment, garnishment, or any other process, and an assignment thereof shall not be enforceable in any court.” However, numerous opinions of this Court and the Supreme Court of Kentucky have held nothing within KRS 61.690 bars the equitable distribution of the pension as marital property in divorce proceedings. See Shown v. Shown, 233 S.W.3d 718 (Ky.2007); Glidewell v. Glidewell, 859 S.W.2d 675 (Ky.App.1993). In 2000, the General Assembly amended KRS 61.690 to exempt KERS benefits from consideration as marital property. However, this amended language was deleted in 2002 and has not been reinstated. Thus, the exemption provision no longer has any legal effect.

Additionally, and contrary to Mark’s assertion, the provision for the exemption of KERS benefits from consideration as marital property was not in effect on either the date the divorce action was filed or the date of dissolution. Thus, it is unnecessary to determine in this appeal which date controls as the law remained unchanged throughout the course of the instant litigation. Further, it is inescapable that the Legislature did not intend for the statute to exempt firefighter pension plans from distribution as marital property as it promptly deleted the provision. Therefore, Mark’s argument that his pension should not have been considered a marital asset to be divided in the divorce proceeding based on the prohibition contained in KRS 61.690 is without merit.

Next, Mark contends the trial court improperly awarded Cheryl a portion of his separate nonmarital property when it included premarital contributions in its division of his pension as well as sums contributed during the two-year period that KRS 61.690 prohibited the division of firefighter pensions. However, as we have previously noted, the prohibition provision Mark relies upon was not in effect during the pendency of the instant action. Thus, because that provision was of no legal consequence in this action, it would have been wholly improper for the trial court to exempt contributions made during the period in which the prohibition portion of the statute was in effect. Mark cites us to no authority supporting his argument nor any precedent authorizing the exclusion he seeks.

Further, it is clear from the record that the trial court exempted Mark’s premarital contributions to the pension from division by awarding Cheryl a one-half interest in only a fraction of Mark’s pension. The trial court deducted forty-six months from the 240 months of service Mark would have accumulated on the twentieth anniversary of his participation in the pension plan. This reduction clearly represents the twenty-four months of contributions Mark made prior to the marriage and the twenty-two months of contributions he made after entry of the divorce decree. Thus, based on the record before us, we are unable to conclude the trial court improperly included premarital contributions in its award.

Nevertheless, the law is clear “that pension and profit sharing plans should be valued on the date of the divorce decree.” Armstrong, 34 S.W.3d at 86 (citing Clark v. Clark, 782 S.W.2d 56, 62 (Ky.App.1990)). The trial court’s award incorrectly set the valuation date at November 2, 2007, the date of Mark’s twentieth anniversary of participation in the pension plan. Thus, we are required to reverse and remand this matter for entry of an award valuing the pension on December 12, 2005, the date of entry of the instant divorce decree. On remand, the trial court must recalculate the cover-ture fraction to be used in dividing the pension based on this earlier date.

Finally, Mark contends the trial court erred in utilizing the delayed division method in allocating his pension benefits. He contends the trial court should have used the net present value method and it was erroneous not to do so. Again, we disagree. The three methods of dividing pension benefits utilized by courts across the country are the delayed division method, the net present value method, and the reserve jurisdiction method. Armstrong v. Armstrong, 34 S.W.3d 83, 85 (Ky.App.2000) (citing In re the Marriage of Hunt, 909 P.2d 525, 530-31 (Colo.1995)).

In the delayed division method, a formula is used to determine the division at the time of the decree but the actual distribution of monies is delayed until payments under the pension are received. Each party then receives the appropriate percentage of the pension payments as they are paid out in accordance with the formula. The use of this method has long been approved in this Commonwealth. See Poe; Duncan v. Duncan, 724 S.W.2d 231 (Ky.App.1987); Foster v. Foster, 589 S.W.2d 223 (Ky.App.1979).

In the net present value method, the trial court calculates the present value of the pension and awards a percentage of that amount in a lump sum to the non-employee spouse. This lump sum award is generally granted in the form of an equivalent value of property rather than as a cash award. Thus, this method requires the availability of significant additional marital assets to equalize the property distribution. Under this method, the employee spouse retains all rights to the pension free of any claims from the non-employee. This method has likewise been favorably utilized in Kentucky. See generally, Duncan, 724 S.W.2d at 233.

In the reserve jurisdiction method, the percentage of the pension to be received by the non-employee spouse is not determined until the pension is fully vested and has matured. This method utilizes the employee’s salary at the time of retirement rather than at the time of divorce to calculate the amounts due to the non-employee spouse. Although utilized by some of our sister jurisdictions, this method has received unfavorable treatment in our courts. See Armstrong, 34 S.W.3d at 85-87 (holding precedents in Kentucky militate against use of the reserve jurisdiction method).

[I]t is axiomatic that a trial court retains broad discretion in valuing pension rights and dividing them between parties in a divorce proceeding, so long as it does not abuse its discretion in so doing in the sense that the evidence supports its findings and they thus are not clearly erroneous. CR 52.01; Ghali v. Ghali, Ky.App., 596 S.W.2d 31 (1980). See also Light v. Light, [599 S.W.2d 476 (Ky.App.1980) ].

Duncan, 724 S.W.2d at 284-35. Here, the trial court clearly weighed the evidence before it in determining the proper method of dividing Mark’s pension. In the exercise of its broad discretion, the trial court determined the use of the delayed division method would yield the most equitable result. Based upon the record before us, we hold the trial court’s decision was supported by substantial evidence and thus there was no abuse of discretion.

Therefore, for the foregoing reasons, the judgment of the Kenton Circuit Court is affirmed in part, reversed in part, and remanded for entry of a judgment consistent with this opinion.

ALL CONCUR.

      . Mark argues the exemption provision in KRS 61.690 was in effect from July 14, 2002, to July 15, 2004. However, our review of the legislative history of the statute reveals the actual effective dates of the provision in question were July 14, 2000, through July 15, 2002. The statute has not been amended in any way since the 2002 Legislative session.

      . Kentucky Rules of Civil Procedure (footnote added).


author: THOMPSON, Judge.

text:
    SWINFORD TRUCKING CO., INC., Appellant, v. PADUCAH BANK AND TRUST CO., Appellee.
    No. 2008-CA-001748-MR.
    Court of Appeals of Kentucky.
    May 21, 2010.

      Richard D. Null, Mayfield, KY, for appellant.
    Thomas J. Keuler, Paducah, KY, for ap-pellee.
    Before CAPERTON, CLAYTON and THOMPSON, Judges.
   OPINION

THOMPSON, Judge.

Swinford Trucking Co., Inc., appeals from an order dismissing its complaint against Paducah Bank and Trust Co., on the basis that Swinford had been fully compensated by the satisfaction of a criminal restitution order. Because we conclude that the circuit court erred as a matter of law, we reverse and remand.

Swinford’s office manager, Debbie Crowley, embezzled funds from Swinford’s bank accounts at Paducah Bank and Trust and pled guilty to one count of theft by failure to make a required disposition over $300 and seven counts of fraudulent use of a credit card over $100. A restitution hearing was conducted at which Swinford provided evidence regarding the specific amount that was unlawfully withdrawn from its accounts. Following the hearing, a restitution order was entered requiring Crowley to pay restitution in the amount of $343,726.50, plus a five percent restitution fee. Ultimately, Crowley made full restitution.

The present action was filed by Swinford against Paducah Bank and Trust alleging that because of Paducah Bank and Trust’s negligence, Crowley was able to unlawfully withdraw the funds from its accounts and, as a result, Swinford incurred economic losses. In addition to compensatory damages, Swinford sought punitive damages and reasonable attorney fees.

After discovery had commenced, Padu-cah Bank and Trust moved for summary judgment alleging that the full payment of restitution by Crowley precluded Swin-ford’s action. The circuit court agreed and granted the motion.

Paducah Bank and Trust argues that pursuant to the doctrine of collateral estoppel, the payment of full restitution by a criminal defendant precludes any further recovery by the victim, even against third parties. Collateral estoppel is a doctrine that evolved to promote judicial economy and finality. The essential elements of collateral estoppel are: (1) identity of issues; (2) a final decision or judgment on the merits; (3) a necessary issue with the estopped party given a full and fair opportunity to litigate; and (4) a prior losing litigant. Moore v. Commonwealth, Cabinet for Human Resources, 954 S.W.2d 317, 319 (Ky.1997).

The elements necessary to apply collateral estoppel cannot be established where, as here, the issues are entirely distinct from those in the prior litigation. The criminal litigation was prosecuted by the Commonwealth on behalf of its citizens, not by Swinford. Although Swinford participated in the restitution hearing, it was not represented by counsel to protect its interests and was not entitled to a jury trial. Finally, Swinford’s cause of action is civil in nature and its success is dependent upon Paducah Bank and Trust’s negligence in permitting Crowley to unlawfully withdraw the funds from its accounts.

Our decision is consistent with KRS 533.030(3)(d) that provides: “An order of restitution shall not preclude the owner of property or the victim who suffered ... out-of-pocket loss of earnings or ... other damages from proceeding in a civil action to recover damages from the defendant. A civil verdict shall be reduced by the amount paid under the criminal restitution order.” Likewise, a civil action is not precluded against a third party who permitted the unlawful act to occur.

Paducah Bank and Trust asserts alternative reasons why this Court should affirm the circuit court’s summary judgment, specifically, that Swinford cannot establish a loss of business opportunity or recover interest or attorney fees. Although the circuit court’s order did not state the specific basis of its decision, the sole issue presented by Paducah Bank and Trust in its motion for summary judgment was collateral estoppel. As a result, we will not address the issues not presented to the circuit court. Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky.1989).

We conclude by emphasizing that we are not dictating a result in this litigation nor does our decision foreclose a subsequent summary judgment motion based on grounds other than collateral estoppel. However, Swinford is not precluded from pursuing a civil action against Paducah Bank and Trust merely because it received restitution from Crowley.

The summary judgment is reversed and the case remanded for further proceedings consistent with this opinion.

ALL CONCUR.


author: VANMETER, Acting Chief Judge.

text:
    MOUNTAIN WATER DISTRICT, Appellant, v. Irvin SMITH; and Hazel Smith, Appellees.
    No. 2008-CA-002369-MR.
    Court of Appeals of Kentucky.
    May 21, 2010.

      Daniel P. Stratton, Pikeville, KY, for appellant.
    Lawrence R. Webster, Pikeville, KY, for appellee.
    Before VANMETER, Acting Chief Judge; KELLER, Judge; WHITE, Senior Judge.

      . Senior Judge Edwin White sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.

   OPINION

VANMETER, Acting Chief Judge.

Mountain Water District appeals from a judgment entered by the Pike Circuit Court after a jury rendered a verdict in favor of Irvin and Hazel Smith regarding a dispute over the cause and extent of property damage suffered by the Smiths. For the reasons stated hereafter, we affirm.

The Smiths own a residence located at 20 Radio Hill in Buskirk, Kentucky. In 2002 and 2003, Mountain Water installed a new sewer system, which was constructed above an existing sewer system and was located uphill from the Smiths’ residence. During the construction, a pipe from the previous system that ran down the hill towards the Smiths’ residence was broken. Subsequently, sewage arose from the ground and saturated the Smiths’ property.

The Smiths discovered a tank buried underneath their property that was connected to the old sewer system. The Smiths believed debris from the broken pipe had caused the sewage to back up within this tank, eventually causing the sewage to permeate their property. County officials advised the Smiths to have the tank filled with concrete to prevent the sewage backup. After the Smiths did so, sewage reappeared on the Smiths’ property. The Smiths suspected, and presented evidence to suggest, repair would need to be done on neighboring property not owned by the Smiths.

The Smiths hired an appraiser who rendered two estimates evaluating the diminution in value of the Smiths’ property. The first, in 2006, estimated a diminution in value of $15,000. The second, in 2008, estimated a diminution in value of $50,000. Mountain Water provided expert testimony that the diminution in value was $5,500.

Prior to trial, Mountain Water filed a motion in limine to suppress any evidence concerning the cost of repair from being introduced at trial, since the Smiths provided no such evidence during discovery. The motion was sustained and the Smiths proffered no such evidence at trial.

At the close of the Smiths’ evidence, and again at the close of all the evidence, Mountain Water moved for a directed verdict claiming the Smiths failed to prove damages to the property by not offering evidence of the cost of repair. Both motions were overruled by the trial court.

Mountain Water proposed a set of jury instructions requiring, for the purpose of calculating damages, the jury to find the lesser amount between the cost of repair and the diminution in value. This instruction was rejected by the trial court, and the damages instruction which was ultimately submitted to the jury read as follows:

If you have answered Yes to Instruction No. 2 [finding liability], you will determine from the evidence the difference in the Fair Market Value immediately before and after the property was damaged not to exceed $50,000.00 dollars. “Fair Market Value” is the price that a person who is willing but not compelled to buy would pay and a seller who is willing but not forced to sell would accept for the property in question.

The jury found in favor of the Smiths and awarded $30,000.00 in damages. This appeal followed.

First, Mountain Water contends the trial court erred by denying its motion for a directed verdict since the Smiths did not provide evidence of the cost of repair, and thus failed to prove their measure of damages. We disagree.

Upon consideration of a motion for a directed verdict, “the trial court must ‘draw all fair and rational inferences from the evidence in favor of the party opposing the motion, and a verdict should not be directed unless the evidence is insufficient to sustain the verdict.’” Kroger Co. v. Willgruber, 920 S.W.2d 61, 64 (Ky.1996) (quoting Spivey v. Sheeler, 514 S.W.2d 667, 673 (Ky.1974)). Upon review by an appellate court, “the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt [or liability], only then the defendant is entitled to a directed verdictf.]” Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991) (citations omitted).

Mountain Water relies on Ellison v. R & B Contracting, Inc., 32 S.W.3d 66 (Ky.2000), to argue the Smiths are required to present evidence of both the cost of repair and the diminution in value. However, in Ellison, the claimant sought cost of repair damages, whereas here, the Smiths sought damages for the diminution in value in their property. The court stated:

As a practical matter, therefore, the amount by which the injury to the property diminishes its total value operates as an upper limit on any damage recovery. Claimants may receive restoration cost damages in injury-to-property cases only when compensation in the form of restoration costs is the least expensive way to make those claimants whole.

Id. at 69-70. The effect of Ellison is to prevent a claimant from seeking cost of repair damages that exceed the diminution in fail* market value. This rule, therefore, assumes the claimant has repaired, or has the ability to repair, the property damage because the claimant is seeking those repair costs as damages. In this case, the Smiths are seeking diminution in value damages, in part, because they claim they were unable to repair the damage, and presented evidence to that effect in the form of an appraisal.

This court does not read Ellison to require a claimant to present evidence of diminution in value and cost of repair when a claimant puts on evidence demonstrating they were unable to repair the damage and do not seek cost of repair damages. Furthermore, Mountain Water cites no Kentucky authority which states the burden of proving damages in an injury-to-property case requires the claimant to demonstrate both cost of repair damages and diminution in value damages when the claimant only seeks diminution in value damages. Drawing “all fair and rational inferences from the evidence in favor of the party opposing the motion,” i.e., in favor of the Smiths, the evidence presented to the jury was not “insufficient to sustain the verdict.” See Kroger Co., 920 S.W.2d at 64. Accordingly, the trial court did not err by denying Mountain Water’s motion for a directed verdict.

Next, Mountain Water contends the trial court erred by not instructing the jury regarding cost of repair damages. We disagree.

An alleged error in a jury instruction is considered a question of law and is reviewed on appeal under a de novo standard of review. Peters v. Wooten, 297 S.W.3d 55, 64 (Ky.App.2009) (quoting Hamilton v. CSX Transp., Inc., 208 S.W.3d 272, 275 (Ky.App.2006)).

Mountain Water argues the jury should have been instructed to calculate damages as the lesser of the cost of repair or the diminution in value, in accordance with Ellison. In Ellison the court stated:

[WJhere a claimant seeks compensation in the form of repair costs for an injury to land, trial courts shall require the jury to find whether the injury may be repaired at a cost less than the diminution in the value of the property, and, if the jury finds otherwise, limit the claimant’s recovery to the diminution in the value of the property.

Id. at 70 (emphasis added). Thus, Ellison requires a jury to be instructed to find the lesser amount between cost of repair and diminution in value only when a claimant seeks cost of repair damages. This court, as noted above, does not read Ellison to require the “lesser amount” instruction when the claimant only seeks diminution in value damages.

Mountain Water directs us to Lichtefeld v. Mactec Eng’g and Consulting, Inc., 239 Fed.Appx. 97 (6th Cir.2007) (applying Kentucky law), as an example of a federal court applying the “lesser amount” instruction in Ellison when the claimant seeks damages for diminution in value without regard to repair costs. Id. at 102. However, in Lichtefeld, the claimant was able to make repairs to the property and assign a dollar amount to those repairs. The lower court instructed the jury to calculate damages as either the cost of repair or the diminution in value, rather than instructing the jury to find the lesser of the two amounts. An appellate review held that the jury instructions should have reflected the “lesser amount” rule set forth in Ellison, rather than instructing the jury that the proper measure of damages was either the cost of repairs or the diminution in value. Id. at 106.

In the present case, the record suggests the Smiths were unable to repair the property damage themselves. Furthermore, no evidence was presented by either party to establish the cost of repair, and none was required. A “lesser amount” instruction was neither required, nor supported by the evidence, and thus the trial court did not err by deciding against giving the instruction offered by Mountain Water.

Finally, Mountain Water asserts the trial court erred by denying its motion for a judgment notwithstanding the verdict. We disagree.

Under CR 50.02,

[n]ot later than 10 days after entry of judgment, a party who has moved for a directed verdict at the close of the all the evidence may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdiet[.]

In reviewing a trial court’s decision to deny a motion for a judgment notwithstanding the verdict, “we apply the same standard of review that we use when reviewing a lower court’s decision to deny a motion for a directed verdict.” Radioshack Corp. v. ComSmart, Inc., 222 S.W.3d 256, 261 (Ky.App.2007) (quoting Prichard v. Bank Josephine, 723 S.W.2d 883, 885 (Ky.App.1987)).

Here, Mountain Water moved for a judgment notwithstanding the verdict on the basis that the Smiths failed to prove their measure of damages as required by Ellison. However, given our conclusion that the Smiths were not required to present evidence of cost of repair damages, it follows that Mountain Water was not entitled to a judgment notwithstanding the verdict on this ground.

The judgment of the Pike Circuit Court is affirmed.

ALL CONCUR.

      . Kentucky Rules of Civil Procedure.


author: ACREE, Judge.

text:
    Sam COLLINS, III and Marietta P. Collins, His Wife; William Lewis Collins and Teresa Collins, His Wife; D. Bruce Orwin, Cotrustee; and William Lewis Collins, Co-Trustee of the Ann Leslie Collins Property Trust, Appellants, v. Leroy LEWIS, Appellee.
    No. 2008-CA-001832-MR.
    Court of Appeals of Kentucky.
    June 4, 2010.

      D. Bruce Orwin, Somerset, KY, for appellants.
    Clint J. Harris, Manchester, KY, for ap-pellee.
    Before ACREE, CAPERTON and THOMPSON, Judges.
   OPINION

ACREE, Judge.

The appellants, the Collins heirs, seek reversal of the Leslie Circuit Court’s order for sale of real property owned by appellants and appellee, Leroy Lewis, in Leslie County. The appellants failed to present evidence that the value of the property would not be materially impaired upon division. The court was satisfied with the evidence presented by appellee that the value would be materially impaired if divided and ordered the property sold. We affirm.

Appellee, Leroy Lewis, commenced this action pursuant to Kentucky Revised Statutes (KRS) 389A.030 seeking to have real property owned jointly by himself and appellants sold and the profits divided according to their respective ownership interests. The percentage of the ownership interests are not in dispute. The only issue before this court is whether the circuit court erred in declining to divide the property.

In support of their petition for sale the appellee offered the expert testimony of Vance Mosely. Mr. Mosely testified that, based on the many factors affecting the value of the property, including mineral interests, timber, road access, and the topography of the land, it would be impossible to divide the land in a manner that would equally apportion the value according to the ownership interests. Further, he believed that dividing the property would result in a decrease in value and the total value of the divided parcels would be less than the value of the undivided whole. While Mr. Mosely relied on acreage amounts that were allegedly incorrect, he made his determination based on the same boundary lines and topography map relied upon by the appellants’ expert.

The appellants’ expert, land surveyor Tom Boggs, relied on different acreage numbers, but the same boundary and topography map considered by Mr. Mosely. Mr. Boggs testified that the land could be divided and that from a surveying point of view, division would not decrease the property’s value. Mr. Boggs did indicate that he was not an appraiser and could not testify as to value.

The circuit court ultimately determined that the property should be sold as a whole because division would materially impair its value. The factual findings of the circuit court will not be overturned unless they are clearly erroneous. Civil Rules of Procedure (CR) 52.01.

KRS 389A.030 provides a mechanism for the sale or division of property that is jointly owned. When an action is brought under KRS 389A.030

indivisibility of the real estate shall be presumed unless an issue in respect thereto is raised by the pleading of any party, and if the court is satisfied from the evidence that the property is divisible, without materially impairing the value of any interest therein, division thereof pursuant to KRS 381.135 shall be ordered.

KRS 389A.030(3).

Subsection three of KRS 389A.030 “creates a presumption of indivisibility, unless a party to the action raises the issue in a pleading.” Acton v. Acton, 283 S.W.3d 744, 750 (Ky.App.2008). The person claiming divisibility bears the burden of going forward. Id. Once some evidence that the property can be partitioned without materially impairing its value is presented, then the party seeking sale bears the burden of proving that division would materially impair the property’s value. Id.

The burden of going forward required the appellants to put forth some proof of divisibility. See Acton, 283 S.W.3d at 750. Appellants met that burden when Mr. Boggs testified that the property “could be surveyed into a divi-sión!,]” (Amended Judgment and Order of Sale, p. 1), and the statutory presumption of indivisibility was extinguished. Cf, Roberts v. Roberts, 67 S.W.3d 605, 608 (Ky.App.2001)(“since no evidence supporting divisibility was presented, ‘the presumed fact stands as a matter of law.’ ”) (citation omitted).

With the presumption extinguished, the appellees bore the burden of proving that partition would materially impair the property’s value. See Acton, 283 S.W.3d at 750. As noted above and in the trial court’s judgment, Mr. Mosely testified “that the property could not be divided between the parties without materially impairing its value [and n]o proof was given by the [appellants] as to whether or not there would be a material impairment of the value.” (Amended Judgment and Order of Sale, p. 1).

The trial court was satisfied that the appellee met his burden of proving that division would result in a material impairment of value and ordered the property sold.

It is clear that there was some confusion at the hearing as to which side bore the initial burden of presenting evidence. The appellee presented evidence first, despite the fact that appellants bore the burden of going forward. However, this confusion was harmless as both parties were given the opportunity to present their case.

The Amended Judgment and Order of Sale of the Leslie Circuit Court is affirmed.

ALL CONCUR.