Searching over 5,500,000 cases.


searching
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.

Large v. Oberson

Court of Appeals of Kentucky

December 15, 2017

ELDON L. LARGE AND G. WILLIAM BAILEY, JR., ATTORNEY AT LAW APPELLANTS
v.
JANE L. OBERSON [1] APPELLEE

         APPEAL FROM HARDIN CIRCUIT COURT HONORABLE KELLY MARK EASTON, JUDGE ACTION NO. 13-CI-01964

          G. WILLIAM BAILEY, JR. ELIZABETHTOWN, KENTUCKY BRIEF FOR APPELLANT

          BARRY BIRDWHISTELL ELIZABETHTOWN, KENTUCKY BRIEF FOR APPELLEE

          BEFORE: COMBS, DIXON, AND NICKELL, JUDGES.

          OPINION

          NICKELL, JUDGE

         Eldon Large and G. William Bailey, Jr. appeal from the Hardin Circuit Court's order entered June 2, 2015, granting sanctions against them under CR[2] 11, as well as the court's subsequent denial of their motion to vacate this order pursuant to CR 59.05, entered August 12, 2015. For the reasons set forth below, we affirm.

         BACKGROUND

         The events of this case stem from Large's complaint alleging fraud against Jane L. Oberson. Large was married to Oberson when she gave birth to Sara Jane Large in 1975. The couple divorced in 1978. Based on physical traits, Large suspected Sara was not his biological child. Nevertheless, following the divorce, Large paid child support until Sara reached the age of majority in 1993.

         Twenty years later, on November 25, 2013, Large filed a civil complaint against Oberson, claiming she fraudulently represented Sara to be his biological child. Large alleged "in 1999 [Oberson] admitted to [Large] that he was not the natural father of Sara Jane Large . . . based on DNA tests she had performed, and that she intended to knowingly deceive and misrepresent to [Large] that he was the natural father of said child." Large requested $19, 375 in monetary damages as reimbursement for past child support payments. In her answer, Oberson explicitly asserted Large's claims "are barred by applicable statutes of limitation and/or statutes of repose." Large later attempted to amend his complaint to include Sara as a defendant, but the trial court found she was not a party to the allegation of fraud. During the course of these proceedings, Large did not move to revisit his prior determination of Sara's paternity in the divorce from Oberson. He also declined to voluntarily dismiss his case once the statute of limitations defense was asserted.

         On April 3, 2015, the trial court granted Oberson's motion for summary judgment. In its written ruling, the court explained fraud claims must be brought within five years of discovery of the fraud, citing KRS[3] 413.120(11), [4] and within ten years of the fraudulent act, citing KRS 413.130(3). The court also noted Large gave inconsistent dates about when he discovered he was not Sara's biological father, the latest of which was 1999 and corresponded to allegations within Large's unverified complaint. Because the complaint was filed in 2013, more than five years after the admitted discovery of the fraud in 1999, and more than ten years after any fraudulent act, the trial court found the matter to be clearly barred by the appropriate limitations period.

         Following summary judgment, Oberson moved the trial court to grant sanctions against Large and his counsel under CR 11, alleging any claims asserted by Large were well outside the statute of limitations. She also maintained Large filed the lawsuit solely out of revenge and without any justifiable purpose. The trial court ultimately found the appellants to be jointly and severally liable for sanctions and awarded attorney's fees to Oberson. The court denied a subsequent motion to vacate the sanctions. This appeal follows.

         ANALYSIS

         For their sole issue on appeal, appellants contend the trial court erred in ordering sanctions. Appellants argue CR 11 sanctions were inappropriate under the circumstances because Large's claim was "well grounded in law and fact and was meritorious in nature." Appellants argued in the trial court that fraud based upon a misstatement of paternity did not exist before Denzik v. Denzik, 197 S.W.3d 108 (Ky. 2006), so the limitations period should relate to rendition of that decision. In addition, appellants argued they were not required to anticipate Oberson would assert the statute of limitations, because it is an affirmative defense. The trial court disagreed, finding the complaint was not based upon "a plausible view of the law." Clark Equipment Co., Inc. v. Bowman, 762 S.W.2d 417, 420 (Ky. App. 1988) (citation omitted). Furthermore, the trial court found appellants unreasonably ...


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.