JAMES FRANCIS AND KERNEL FRANCIS APPELLANTS v. CHESAPEAKE APPALACHIA AND SMITH HEIRS APPELLEES (2012)

NOT TO BE PUBLISHED

OPINIONAFFIRMING

James Francis and Kernel Francis appeal from the denial of their Kentucky Rules of Civil Procedure (“CR”) 60.02 motion to vacate or set aside a summary judgment on the grounds of newly discovered evidence.   After our review, we affirm.

On May 16, 2005, Chesapeake Appalachia, L.L.C. filed a declaratory judgment action in Knott Circuit Court against James Francis and a number of other individuals whom we will refer to collectively as the H.H. Smith heirs.^Double The action sought to quiet title to and establish ownership of the mineral, oil, and gas rights with respect to certain real property located in Knott County, Kentucky.

The subject property and all related mineral, oil, and gas rights were conveyed by deed to Dicie Smith, widow of H.H. Smith, by Alex and Surilda Francis in 1935.   In 1952, Smith leased the oil and gas rights in the property to Ben Williamson, Jr., the trustee for the Inland Gas Corporation and a predecessor-in-interest to Chesapeake.   Pursuant to this lease, Chesapeake was paying oil and gas royalties to the H.H. Smith heirs as the record owners of the subject property.   Chesapeake filed the declaratory judgment action after James Francis began asserting a claim to the royalties in April 2004.^Double In turn, the H.H. Smith heirs filed a cross-claim against Francis asserting their ownership interest in the property and seeking damages for Francis's alleged interference with the collection of gas from a well on the property.

On April 21, 2006, the circuit court entered a summary judgment determining that the H.H. Smith heirs were the rightful owners of the property and were, therefore, entitled to all royalties from the oil and gas lease.   The court further determined that Chesapeake was the rightful lessee of the oil and gas on the property.   The court also granted a permanent injunction prohibiting James Francis from interfering with the production of oil and gas on the property.   Francis subsequently filed appeals to this Court,^Double the Supreme Court of Kentucky, and the United States Supreme Court, but none of them disturbed the circuit court's decision.

On January 14, 2009, James Francis filed a CR 60.02 motion for relief from the summary judgment on the basis of mistake, newly discovered evidence, and fraud.   No specific factual grounds were provided for the motion.   Francis also asked the circuit court judge to recuse herself from the proceedings.   On February 12, 2009, the circuit court denied the CR 60.02 motion as being untimely filed and also denied the motion for recusal.   Appellants subsequently filed a motion to alter, amend, or vacate both determinations.   They argued that Appellant Kernel Francis was a necessary party to the case because he had a direct claim against the subject property and that the CR 60.02 motion was, in fact, timely filed within a year of the United States Supreme Court's denial of their petition for rehearing following the Court's denial of their petition for a writ of certiorari.   This time, the circuit court judge agreed to recuse from the case and the motion was assigned to a special judge for consideration.

Following a status conference, the circuit court entered an order on March 19, 2010, dismissing the action with prejudice after determining that “there are no matters pending before the Court.”   Appellants subsequently filed another motion to alter, amend, or vacate in which they asked the circuit court to consider newly discovered evidence.   This evidence consisted of:  (1) a well location map filed with the Department of Mines and Minerals in June 1968;  (2) a well record filed with the Kentucky Geological Survey in December 1968;  (3) a map acknowledged in July 1956;  (4) an undated portion of a topographical map;  (5) articles of incorporation from 1917;  and (6) deed records from 1917 and 1941.   On April 13, 2010, the circuit court entered an order denying the motion to alter, amend, or vacate.   This appeal followed.

On appeal, Appellants contend only that the circuit court should have granted their motion for CR 60.02 relief from the summary judgment of April 21, 2006, because of the existence of newly discovered evidence.  CR 60.02(b) provides that a court may relieve a party from a final judgment due to “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59.02[.]” However, CR 60.02 requires a motion brought pursuant to CR 60.02(b) to be made “not more than one year after the judgment, order, or proceeding was entered or taken.”   Consequently, the circuit court correctly rejected the subject motion as untimely since it was filed well after the one-year limit set forth in the rule.

Appellants contend that their motion actually complied with the timeliness requirements of CR 60.02 since it was filed within a year of the United States Supreme Court's final rejection of their appeal for relief.   However, the time for filing a CR 60.02 motion is not tolled by the filing of an appeal and the relief provided therein “must be sought within the year even though an appeal is being prosecuted.”  Meredith v. Commonwealth, 312 S.W.2d 460, 462 (Ky.1958).  “In other words the remedy is in no way affected by the appeal and the appeal is in no way affected by the remedy.”  Id;  see also Kentucky Ret. Sys. v. Foster, 338 S.W.3d 788, 796–97 (Ky.App.2010).   Therefore, the circuit court did not err in denying Appellants' CR 60.02 motion on grounds of untimeliness since the motion was filed nearly three years after judgment was entered.

We further note that the circuit court otherwise did not abuse its discretion in denying Appellants' motion.^Double CR 60.02 authorizes relief from a final judgment on the grounds of newly discovered evidence only if:  “(1) the evidence was discovered after entry of judgment;  (2) the moving party was diligent in discovering the new evidence;  (3) the newly discovered evidence is not merely cumulative or impeaching;  (4) the newly discovered evidence is material;  and (5) the evidence, if introduced, would probably result in a different outcome.”  Hopkins v. Ratliff, 957 S.W.2d 300, 301–02 (Ky.App.1997).   In this case, the “newly discovered evidence” in question consisted of documents that have been part of the public record for decades.   Thus, they could have been discovered before judgment was entered had due diligence been exercised.  CR 60.02 relief was properly denied.   See Holliday v. Tennis Coal Co., 264 Ky. 371, 94 S.W.2d 657, 660 (1936).^Double

For the foregoing reasons, the decision of the Knott Circuit Court is affirmed.

ALL CONCUR.

LAMBERT, SENIOR JUDGE: