Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Fox Trot Properties, LLC v. DLX, Inc.

Court of Appeals of Kentucky

July 21, 2017



          BRIEFS FOR APPELLANT: D. Duane Cook Georgetown, Kentucky

          BRIEF FOR APPELLEE: Wayne F. Collier Shelby C. Kinkead, Jr. Lexington, Kentucky James D. Asher Whitesburg, Kentucky



          LAMBERT, J., JUDGE.

         Fox Trot Properties, LLC, has appealed from the order of the Letcher Circuit Court granting the motion of DLX, Inc., to reduce and abate interest on a 1995 judgment pursuant to Kentucky Rules of Civil Procedure (CR) 60. We affirm.

         This case has been before the appellate courts in this Commonwealth before, and we shall rely upon the succinct recitation of the factual and procedural background of this matter as set forth by the Supreme Court of Kentucky in Fox Trot Properties, LLC v. Wright, 314 S.W.3d 286, 287 (Ky. 2010):

This case involves an order of the Letcher 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, 234.40 [the Wausau judgment].[1] This judgment was then assigned to Appellant, Fox Trot Properties, LLC, in 2004.[2]
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.[3] 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."[4] In response, Fox Trot filed a writ of prohibition in the Court of Appeals, asserting that the Letcher 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.[5] Fox Trot appealed to this Court as a matter of right. Ky. Const. § 115.

         The Supreme Court affirmed this Court's denial of the writ, [6] holding that:

[T]he 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.

Id. at 289.

         After the Supreme Court's opinion became final in July 2010, Fox Trot moved the circuit court to dissolve the September 5, 2008, order holding its collection efforts in abeyance or in the alternative for a security bond to stay enforcement of the judgment. By separate motion, Fox Trot moved the court for an order denying DLX's pending motions, noting that none of the coal from the refuse pile tract had been sold, nor had any funds been paid toward the judgment. In its response, DLX stated that the parties had been able to resolve some of their differences, in particular clearing up the cloud Fox Trot had placed on DLX's title in June 2010, which had negatively affected DLX's ability to market the coal on the property. DLX also pointed out language in the Supreme Court's opinion stating that its claim was valid and that CR 60 was the proper mechanism to bring it before the court. In a later notice, DLX filed an affidavit from Don LaViers. The court scheduled the matter for an evidentiary hearing in April 2011.

         In March, one month before the scheduled hearing, DLX filed a second amended motion to void or reduce the judgment, seeking modification of interest that was accruing on the default judgment. DLX specifically sought 1) suspension of interest between July 20, 2001, and June 3, 2010, based upon Fox Trot's actions that interfered with DLX's ability to raise the funds to pay the judgment; 2) a reduction of the interest rate from 12% because that rate was inequitable; and 3) a stay of enforcement of the judgment for six months after the entry of the order establishing the applicable interest rate to allow DLX to market and sell enough coal refuse to satisfy the judgment. In June 2011, the court continued the April hearing until discovery was sufficiently complete.

         More than three years later, in October 2014, DLX moved the court for a hearing date in 2015 on its motions, to order Fox Trot to show cause why it should not be held in contempt related to a filing in an Estill Circuit Court action in violation of the 2008 stay, [7] and to enforce the stay. Fox Trot filed a response requesting that the court deny DLX's substantive motions and noted that the amount due as of November 1, 2014, was in excess of $3M, inclusive of 12% interest. The circuit court scheduled an evidentiary hearing for April 2015 and a show cause hearing for January 2015. DLX filed a reply memorandum prior to the show cause hearing date, and the court entered an order in March 2015 in which it ruled that the January 2008 stay would remain in effect; that DLX's motion to hold Fox Trot in contempt was denied based upon Fox Trot's agreement to abate the action in Estill County; and that no bond was necessary due to DLX's agreement to have the BRC entities deposit payments from the sale of processed refuse into the court's registry.

         Fox Trot filed a status report and pre-trial motions on April 1, 2015, in which it stated that DLX had not alleged any facts that would entitle it to relief under CR 60.02(f) and that there were not any factual issues to try. Shortly thereafter, Fox Trot filed a response in opposition to DLX's motion to void or reduce the original judgment under equity jurisdiction, noting that DLX had abandoned its claims for relief under CR 60.02(f) and CR 60.03 and that the circuit court did not have the power to grant relief through its general equity power because DLX had delayed the matter since 2008, for more than eight years. DLX then filed a memorandum in support of its motions for relief under CR 60.02(f) and CR 62.01. It argued that Fox Trot had put forward two inconsistent claims - first, as to title to the property and second, seeking foreclosure - that impacted DLX's ability to sell the refuse pile tract and pay what was due under the Wausau Judgment until it was able to lease the property to the BRC entities in July 2014. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.