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Dodd v. Long3/28/2003
limitations had run, and because the Dodds lacked standing to bring such a claim. Without passing on the merits of either of the first two grounds, we adjudge that the Dodds did not have standing to maintain a fraud claim derived from Anne's interest.
CR 17.01 provides in pertinent part that " very action shall be prosecuted in the name of the real party in interest." It is undisputed that Anne Dodd only assigned her interest in marital property to Bo Dodd's estate. Contrary to the Dodds' position that the fraud claim was part of this marital property, we agree with the trial court that the fraud claim, like a personal injury claim, would be non-marital property, except for any lost wages during the marriage. See Weakley v. Weakley, Ky., 731 S.W.2d 243 (1987). Since lost wages would not be part of Anne's fraud claim, no part of the claim would be marital and thus the Dodds were not entitled to pursue Anne's fraud claim.
The Dodds next argue that there exist material questions of fact in the case that preclude summary judgment. Since this Court in its earlier opinion affirmed the summary judgment on all claims except the fraud claim derived from Anne's interest and since we have adjudged above that said claim could not proceed, there are no remaining issues, factual or otherwise, to be decided in the case.
Finally, the Dodds argue that the prior Court of Appeals' opinion should not be interpreted to limit their action on remand to a fraud claim derived from Anne's interest. Rather, they maintain that the opinion should be interpreted to mean simply that the Statute of Frauds and the parol evidence rule would not apply if fraud existed in the transaction. We cannot agree. It is clear from our reading of the opinion that the Court meant to limit the Dodds' remaining cause of action to a fraud claim based on Anne's interest. The Court specifically referred to a separate fraud claim in the first sentence of the opinion.
The Court of Appeals has no power on a second appeal to correct an error in the original judgment which either was, or might have been relied upon in the first appeal. Hogan v. Long, Ky., 922 S.W.2d 368, 370 (1995), (quoting Commonwealth v. Schaefer, Ky., 639 S.W.2d 776, 777 (1982)).
For the reasons stated above, the judgment of the Fulton Circuit Court is affirmed.
ALL CONCUR.
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