Motors Ins. Corp. v. Singleton, s. 82-CA-1287-M

• Citation: 677 S.W.2d 309
• Decision Date: 24 February 1984
• Docket Number: Nos. 82-CA-1287-M,82-CA-1402-MR,s. 82-CA-1287-M
• Court: Court of Appeals of Kentucky
• Parties: 39 UCC Rep.Serv. 1294 MOTORS INSURANCE CORPORATION, Appellant, v. Michael SINGLETON, Carol Singleton, Mattingly-Rapier Chevrolet Company, Donnie Scheffer, Owens Chevrolet, Inc., Michael H. Keys, Allen Neal, Appellees. Michael SINGLETON & Carol Singleton, Cross-Appellants, v. MOTORS INSURANCE CORPORATION and Mattingly-Rapier Chevrolet Company, Cross- Appellees.

Page 309

677 S.W.2d 309

39 UCC Rep.Serv. 1294

MOTORS INSURANCE CORPORATION, Appellant, v. Michael SINGLETON, Carol Singleton, Mattingly-Rapier

Chevrolet Company, Donnie Scheffer, Owens

Chevrolet, Inc., Michael H. Keys, Allen

Neal, Appellees.

Michael SINGLETON & Carol Singleton, Cross-Appellants, v. MOTORS INSURANCE CORPORATION and Mattingly-Rapier Chevrolet

Company, Cross- Appellees.

Nos. 82-CA-1287-MR, 82-CA-1402-MR

Court of Appeals of Kentucky.

Feb. 24, 1984.

Julius Rather, Lexington, for appellant/cross-appellee Motors Ins. corp.

W. Earl Dean, Dean, Dean & Dean, Harrodsburg, for appellee Owens Chevrolet Co.

James F. Clay, Clay & Clay, Danville, for appellee/cross-appellee Mattingly-Rapier Chevrolet Co.

Paul V. Hibberd, Danville, for appellees/cross-appellants Michael Singleton and Carol Singleton.

Before HAYES, C.J., and REYNOLDS and DUNN, JJ.

DUNN, Judge.

This case, a classical exercise demonstrating the tedium involved in the process of our judicial system's wheels grinding slowly but exceedingly fine, requires an identifying lineup of the parties in the general chronological order in which they appear in the factual scenario with which we are concerned. It is as follows:

Allen Neal, appellee, owned a 1975 Corvette automobile insured against theft by

Motors Insurance Corporation, appellant, also known as M.I.C.;

James Scott, appellee, alias Michael Keys, conspiring with his friend, Neal, using his alias name Keys on fictitious, forged title papers, sold the car to

Owens Chevrolet Company, appellee, and it sold the car to

Donnie Scheffer, appellee, who in turn traded it in the purchase of another car, conveying it to

Mattingly-Rapier Chevrolet Company, appellee and cross-appellee, and it then sold it to

Michael Singleton and his wife, Carol Singleton, appellees and cross-appellants.

After selling the Corvette to Owens Chevrolet, in furtherance of a conspiracy between him and Scott, alias Keys, Neal reported to the police that it had been stolen, and fraudulently presented a claim and collected the proceeds of the theft insurance policy from M.I.C. and later transferred title to the car to M.I.C.

After all of these events, Carol Singleton, while driving the car on November 23, 1976, was arrested by Eastern Kentucky University campus police and charged with driving a stolen motor vehicle. The Corvette was seized by the police and turned over to M.I.C.

Armed with their title from Mattingly-Rapier, the Singleton's demanded of M.I.C. the return of the automobile. Their demand having been refused by M.I.C., they sued Mattingly-Rapier and M.I.C. in the Boyle Circuit Court on January 21, 1977. Despite the earlier demand on it and despite the fact it knew of the suit and its contents and demands, summons having been served on it on January 23, 1977, M.I.C., nonetheless, on March 29, 1977, sold the Corvette to L.R. Cooke Chevrolet Company for $6,500.00. M.I.C. also received $2,000.00 criminal court ordered restitution from Neal. He and Scott, alias Keys, had pleaded guilty to theft charges in relation to their scheme. In all M.I.C. collected $8,500.00 on the $8,127.50 theft claim it had paid. It realized a profit of $372.50.

In their two count action in Boyle Circuit Court, Singletons in Count One alleged breach of title warranty on Mattingly-Rapier's failure to provide to them a clear title to the Corvette demanding damages for its loss plus consequential damages. In Count Two they alternatively alleged M.I.C. wrongfully converted the Corvette also demanding damages for its value plus additional sums for consequential damages.

Mattingly-Rapier joined as third party defendants its predecessors on the forged title to the Corvette, Donnie Scheffer, Owens Chevrolet, and, using Scott's alias name, Michael Keys, Neal's co-conspirator on the forged title. Mattingly-Rapier also answered defending on the basis of its title from Allen Neal thru Owens Chevrolet and Scheffer, and it also cross-claimed against alias Keys and Neal and M.I.C.

The trial court in the first trial sustained Singletons' motion for summary judgment on the issues of liability against Mattingly-Rapier and of their damages as a result of that liability. It also sustained M.I.C.'s motion for summary judgment in its favor dismissing Singletons' complaint, and all other cross-claims and counterclaims against it.

In its order sustaining the motions, the trial court in effect found Mattingly-Rapier liable on a breach of title warranty to the Singletons awarding them damages for the car's purchase price plus consequential damages. It dismissed M.I.C. on both the complaint and cross-claims against it, holding it had proper title to the car, and also dismissed the third party actions against Owens Chevrolet and Donnie Scheffer on the basis they had no intent to defraud or misrepresent the title. It further ordered Neal and alias Keys to reimburse Mattingly-Rapier, Owens Chevrolet and Scheffer all their pecuniary losses.

Mattingly-Rapier appealed the summary judgments to this court but failed to designate M.I.C. as an appellee. Singletons cross-appealed designating M.I.C. as an appellee. This court dismissed M.I.C. as a party to the cross-appeal since Mattingly-Rapier had not designated it on its direct appeal. However, this court did conclude and hold that the trial court erred in determining that Mattingly-Rapier did not have legal title to the Corvette, reasoning that alias Keys was the agent of Allen Neal, the car's legal owner, and in that capacity, even though using forged papers, passed legal title to Mattingly-Rapier thru Owens Chevrolet Company and Donnie Scheffer and thru it to the Singletons. In doing so, this court held the trial court erred in concluding the vehicle to have been stolen and that M.I.C. acquired a good title from Neal. It reversed and remanded the case to the trial court to determine Singletons' claim for conversion against M.I.C., Mattingly-Rapier's cross-claims against Owens Chevrolet and Scheffer and its cross-claim against M.I.C.

However, discretionary review was granted by our Supreme Court. It dismissed the appeal on the basis that the trial court's opinion and order was interlocutory disposing of less than all the claims and its attempt to make it final was without an articulated determination that there was no just reason for delay. It remanded it to the trial court so that theories argued on the aborted appeal or any other contentions not presented to or ruled on by the trial court might be submitted and decided by the trial court.

On remand, a special judge was appointed to preside in place of the Boyle Circuit Judge who was recused from further participation in the trial. A hearing was had without jury at which all parties were given the opportunity to present proof in addition to the facts about which they had stipulated there was no dispute. All parties were present with counsel other than Neal and Scott, alias Keys, who were not present or represented though properly notified.

As a result of the hearing before the special judge, at which some additional proof was presented, the trial court found and concluded that title to the Corvette passed to Mattingly-Rapier thru Owens Chevrolet and Scheffer from Neal through his agent Scott, alias Keys, and, with the exception of Neal and Scott, dismissed all claims against them. It held Neal and Scott liable to the Singletons for breach of warranty of title. It also determined M.I.C. wrongfully converted the vehicle, but limited damages against it to the value of the car plus 8% interest from the date of the conversion. It entered judgment jointly and severally against M.I.C., Neal and Scott, alias Keys, for $8,500.00, interest at 8% from November 22, 1976, and upon payment by M.I.C., it had judgment against Neal and Scott for the amount it paid. It also provided for a separate joint and several judgment only against Neal and Scott for $50.84 interest on a loan, $42.00 usage tax and clerk's fee, $100.00 lost wages to Michael Singleton, $609.00 insurance premium, $7,118.75 attorney fees, and $779.21 as costs on appeal.

On its direct appeal M.I.C. contends that the summary judgment granted in its favor in the first instance is final and binding, since it was not a party to the first appeal and the trial court's reinstatement of it as a defendant in the second trial was error. We disagree.

This opinion need not be burdened with the reasons for it, but a misunderstanding has developed with regard to appellate practice where a party who is not aggrieved by part of a lower court judgment fails to provisionally appeal on other portions or cross-appeal on the harmless portion. In Brown v. Barkley, Ky., 628 S.W.2d 616 (1982), then Chief Justice Palmore in clearing up the misunderstanding stated in pertinent part;

.... We are moved...