BOB BARNES and CFW, INC. v. JIMMY MORGAN and RON STUDLE
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RENDERED: May 29, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
96-CA-3263-MR
BOB BARNES and
CFW, INC.
APPELLANTS
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE THOMAS R. LEWIS, JUDGE
ACTION NO. 95-CI-0499
v.
JIMMY MORGAN and
RON STUDLE
APPELLEES
OPINION
REVERSING AND REMANDING
* * * * * * * * * * * * * * * * * * *
BEFORE:
BUCKINGHAM, KNOX, and MILLER, Judges.
BUCKINGHAM, JUDGE.
Appellants Bob Barnes and CFW, Inc., d/b/a
The Insurance Mart, appeal from a summary judgment entered
against them by the Warren Circuit Court.
For the reasons set
forth hereinafter, we reverse and remand for trial.
Appellees Jimmy Morgan (Morgan) and Ron Studle (Studle)
were formerly employed by The Insurance Mart as insurance agents.
Their employment was terminated in early 1995, after which they
filed a complaint in the Warren Circuit Court against Barnes and
CFW. The complaint alleged that Barnes and CFW owed Morgan and
Studle a sum in excess of $20,000 for past-due commissions.
Barnes and CFW denied that commissions were owed and
counterclaimed for breach of contract for alleged solicitation of
CFW clients and for violation of the exclusive agent clause of
their contract with CFW.
A bench trial was held on September 11, 1995; however,
the trial judge halted the trial before its conclusion and
directed the parties to attempt to settle the case.
Approximately one year later, Morgan and Studle moved the court
to redocket the case and also filed a motion for summary judgment
claiming that they were entitled to summary judgment because "due
to the lack of participation of the Defendant and/or his counsel
the Plaintiffs are entitled to the relief sought in their
complaint."
The certificate of service on the summary judgment
motion stated that it was served by placing it in the mail on
October 7, 1996, and the notice on the motion stated that it
would be heard by the court on October 16, 1996, at 9:00 a.m.
The motion did not contain any supporting affidavits or other
supporting material or information and cited no grounds for
granting the motion other than the alleged lack of participation
by Barnes and CFW or their counsel.
On the day before the
hearing on the summary judgment motion, counsel for Barnes and
CFW faxed their written response to the motion to the circuit
clerk for filing and to counsel for Morgan and Studle.
A hearing was held on the motions of Morgan and Studle
on October 16, 1996, as scheduled.
Morgan and Studle and their
attorney were present at the hearing, as was Barnes.
However,
counsel for Barnes and CFW did not appear at the hearing.
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The
trial judge considered statements made by the attorney for Morgan
and Studle and by Barnes before stating that he would award
summary judgment in favor of Morgan and Studle.
No affidavit or
supporting material was offered to prove the amount owed, no
mention was made by the trial court or anyone else concerning the
exact amount to be awarded, and the trial judge directed counsel
for Morgan and Studle to prepare a summary judgment for his
signature.
The trial judge did state that the amount of the
judgment would be that claimed by Morgan and Studle and that he
expected that the summary judgment would prompt Barnes and CFW to
present their figures to him in a later motion to set the
judgment aside.
On October 28, 1996, the trial court entered judgment
in favor of Morgan and Studle and against Barnes and CFW in the
amount of $12,729.26 plus interest and court costs.
Although the
order and judgment made no mention of the counterclaim of Barnes
and CFW against Morgan and Studle, it did state that "this is a
final and appealable order . . . and there is no just cause for
delay."
Thereafter, Barnes and CFW filed a motion to alter or
amend the judgment which the trial court refused to hear on the
ground that it was not timely filed.
This appeal by Barnes and
CFW followed.
Barnes and CFW first argue that the summary judgment
should be set aside because insufficient notice of its hearing
was given.
Civil Rule (CR) 56.03 provides in relevant part that
"[t]he motion [for summary judgment] shall be served at least 10
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days before the time fixed for the hearing."
The motion was
clearly not served at least ten days prior to the hearing in this
case.
However, "the ten-day requirement of CR 56.03 may be
waived absent a showing of prejudice."
Equitable Coal Sales,
Inc. v. Duncan Machinery Movers, Inc., Ky. App., 649 S.W.2d 415,
416 (1983).
Counsel for Barnes and CFW was aware of the hearing
on the motion and even filed a response to it on the day before.
Barnes was present at the hearing, and he made no objection to
the hearing going forward.
Furthermore, the response filed by
counsel for Barnes and CFW made no objection to the hearing being
held.
Counsel for Barnes and CFW states in their brief that
she could not be present due to the illness of her mother who was
hospitalized in Louisville.
Counsel also states that the court
was advised of this prior to the hearing and that a telephone
number where counsel could be reached was left with the trial
judge's secretary.
Counsel further argues that "[i]t was agreed
that a telephonic hearing would be conducted, as had been
previous hearings."
Other than counsel's bare allegations in the
brief, we find nothing in the record to substantiate her claim
that she was with her ill mother in Louisville, that a message
was left with the judge's secretary, or that there was an
agreement that a telephonic conference would be conducted on the
motion.
Furthermore, relief due to insufficient notice was not
raised as a ground in support of the motion to alter or amend
judgment.
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In short, the record indicates that counsel for Barnes
and CFW voluntarily failed to appear for the argument of the
summary judgment motion made by Morgan and Studle.
No
continuance was requested, and no objection was made by anyone
concerning the ten-day requirement of CR 56.03.
Barnes and CFW
waived the ten-day requirement of CR 56.03, and there is no
showing that they were prejudiced by the motion being heard when
it was.
See Equitable Coal, supra.
Barnes and CFW also complain that the trial court
failed to address their counterclaim.
This statement is made in
the brief without further elaboration and without the citation of
any legal authority.
We assume that Barnes and CFW intend to
argue that the judgment was not final and appealable since it did
not dispose of the counterclaim.
CR 54.02(1) provides in
relevant part:
When more than one claim for relief is
presented in an action, whether as a claim,
counterclaim, cross-claim, or third-party
claim, or when multiple parties are involved,
the court may grant a final judgment upon one
or more but less than all of the claims or
parties only upon a determination that there
is no just reason for delay. The judgment
shall recite such determination and shall
recite that the judgment is final.
The summary judgment in this case finally adjudicated the claim
of Morgan and Studle against Barnes and CFW and contained the
necessary recitals pursuant to the rule.
therefore, final and appealable.
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The judgment was,
The argument by Barnes and CFW that summary judgment
should not have been granted since there were genuine issues of
material fact has merit.
CR 56.03 provides in relevant part:
The judgment sought shall be rendered
forthwith if the pleadings, depositions,
answers to interrogatories, stipulations, and
admissions on file, together with the
affidavits, if any, show that there is no
genuine issue as to any material fact and
that the moving party is entitled to a
judgment as a matter of law.
Also, "[t]he standard of review on appeal of a summary judgment
is whether the trial court correctly found that there were no
genuine issues as to any material fact and that the moving party
was entitled to judgment as a matter of law."
Scifres v. Kraft,
Ky. App., 916 S.W.2d 779, 781 (1996).
The only ground for summary judgment stated by Morgan
and Studle in their motion was "the lack of participation of the
Defendant and/or his counsel . . . ."
The motion does not even
allege that there were no genuine issues of material fact nor
does it contain any information as to the amount owed, if any.
Furthermore, at all phases of the proceedings, Barnes and CFW
denied owing the commissions.
In response to the arguments raised by Barnes and CFW
in their brief, Morgan and Studle contend that Barnes and CFW
"ignored the court's requests to produce evidence of the amount
of commissions owed" and that "[w]here the Defendants' action
show [sic] a calculated and unnecessary lack of cooperation with
the Trial Court process, the Trial Court has the discretion to
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grant Summary Judgment against the non-conforming party . . . ."
Morgan and Studle cite no authority, nor are we aware of any,
for their argument that a summary judgment may be granted due to
the "lack of participation" or "lack of cooperation" of the
opposing party.
More importantly, Morgan and Studle do not cite to
anything in the record which would support their argument that
there is no genuine issue of material fact concerning the amount
owed being $12,729.26.
Their brief makes no reference to any
admission, any deposition testimony, any exhibit, any
interrogatory response, any affidavit, or anything else that
would indicate that the aforementioned amount is clearly owed and
that there is no issue in that regard.
They merely state that
they examined the records of the business and that "by their
calculations, found that they were owed $12,729.26."
[T]he movant must convince the court, by the evidence
of record, of the nonexistence of an issue of material fact."
Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807
S.W.2d 476, 482 (1991).
Since there were genuine issues of
material fact concerning whether commissions were owed and, if
so, in what amount, the trial court erroneously awarded summary
judgment to Morgan and Studle.
Scifres, supra.
The judgment of the Warren Circuit Court is reversed,
and the case is remanded for trial.
ALL CONCUR.
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BRIEFS FOR APPELLANTS:
BRIEF OR APPELLEE:
Judy Webb Sipes
Leitchfield, KY
Arthur Woodson Pulliam
Munfordville, KY
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