SONNY JOSEPH BOLT v. TIFFANY MICHELE BOLT
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RENDERED: APRIL 22, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001991-MR
SONNY JOSEPH BOLT
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JOAN L. BYER, JUDGE
ACTION NO. 02-CI-503515
TIFFANY MICHELE BOLT
APPELLEE
OPINION
AFFIRMING IN PART,
REVERSING IN PART,
AND REMANDING
** ** ** ** **
BEFORE:
BUCKINGHAM, JOHNSON, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
The first issue concerns setting aside
admissions made by appellant in his failure to answer or deny
interrogatories.
We opine the trial court did not abuse its
discretion in not setting aside appellant’s admissions.
Therefore, we affirm that part of the judgment.
The second issue on appeal is whether or not there was
a negotiated property settlement agreement in a divorce
proceeding.
We opine the circuit court erred in enforcing the
agreement because the issue of the insurance proceeds was never
agreed upon.
Therefore, there was no agreement, and that part
of the judgment must be reversed and remanded for further
proceedings.
The appellant, Sonny Joseph Bolt, was originally
represented by counsel in the divorce action with appellee,
Tiffany Michele Bolt.
On January 27, 2003, Interrogatories and
Request for Production of Documents had been sent to appellant,
with a response due by March 1, 2003.
However, prior to filing
a response, appellant’s counsel filed a motion to withdraw, on
February 24, 2003.
The court granted the motion to withdraw and
granted the appellant seven days to retain substitute counsel.
Before retaining new counsel, appellant attempted to reach a
settlement with appellee’s counsel.
By fax sent March 20, 2003,
appellant made a settlement proposal awarding the appellee the
Honda Accord vehicle if appellee agreed there would be no need
for appellant to respond to the Interrogatories and Request for
Production of Documents.
On March 21, 2003, appellee’s counsel
counter-offered, agreeing to the proposed settlement if
appellant assumed the debt on the vehicle and awarded appellant
the insurance proceeds for damages to the vehicle.
On March 26,
2003, appellant sent a fax rejecting the counter-offer.
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On April 9, 2003, appellee’s counsel filed a motion to
compel answers to the earlier discovery of January 27, 2003.
On
April 14, 2003, the trial court granted the request but allowed
the appellant five additional days to comply.
On April 28,
2003, appellee’s counsel moved for a show cause order to
determine why appellant should not be held in contempt for not
complying with the discovery requests.
On May 14, 2003,
appellee’s attorney filed a request for admissions of the
previously unanswered interrogatories.
On May 19, 2003, the
trial court entered an order deeming the following as admitted:
1. That the Respondent without the
Petitioner’s knowledge or consent,
requested, obtained, and/or used the
Petitioner, Tiffany Bolt’s Consumer Report
(as said term is defined in the Federal Fair
Credit Reporting Act, 15 U.S.C. § 1681 et.
seq.); and
2. That in doing so, Mr. Bolt used the
resources of his employer, PNC Bank; and
3. That the Respondent in requesting,
obtaining and/or using such information, had
no permissible purpose (as said term is
defined in the Federal Fair Credit Reporting
Act, 15 U.S.C. § 1681 et. seq.).
Subsequently, appellant obtained new counsel who moved the trial
court to reconsider the admissions, on the grounds that
appellant was not represented by counsel, he did not have a full
understanding of the way the discovery process worked and that
appellant had sufficient legal reasons to justify his refusal to
answer.
Said motion to reconsider was denied.
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On June 10, 2003, appellant’s new counsel sent an
offer to appellee’s counsel concerning issue two, the property
settlement.
In the offer, appellant agreed appellee would get
the Honda Accord and appellant would pay off the vehicle debt.
Nothing was mentioned about the insurance proceeds.
However, on
June 16, 2003, at an unrelated motion docket, appellant’s new
counsel’s partner was discussing the proposed settlement with
appellee’s counsel, when the issue of the insurance proceeds
first arose between counsel.
When appellant’s counsel’s partner
heard about the insurance proceeds, he (the partner) agreed that
it sounded reasonable that the insurance proceeds would follow
the Honda Accord.
Nothing was put in writing nor was the
proposed change reviewed by the appellant or agreed to by the
attorney representing the appellant.
On June 19, 2003,
appellant’s attorney faxed a letter to appellee’s attorney
indicating that that June 10 offer would remain open until the
close of business on June 20, 2003.
No reference was made about
including or excluding the insurance check.
The same day,
appellee’s attorney faxed an acceptance “with the understanding
that the check which your client received from the insurance
company . . . is to be awarded to my client.”
until after the deadline of June 20, 2003.
Nothing happened
Appellee takes the
position that there was an agreed settlement.
Appellant
contends the June 19 acceptance contained additional terms which
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converted it to a counter-offer.
The trial court concluded
there was an acceptance, not a counter-offer.
Appellant’s first argument on appeal is that the trial
court erred in not vacating or amending the order as to the
admissions.
CR 36.01(2) requires written answers to a request
within 30 days or the matter is admitted.
discretion to allow more time.
The court has
More importantly, “[a] party who
considers that a matter of which an admission has been requested
presents a genuine issue for trial may not, on that ground
alone, object to the request; he may, subject to the provisions
of Rule 37.03, deny the matter or set forth reasons why he
cannot admit or deny it.”
on the request.
Id.
Appellant did nothing.
He sat
Granted, he tried to settle the case, but after
he rejected the counter-offer on March 26, 2003, he still made
no effort to answer the request for admissions.
Nor did he give
any reason why he could not admit or deny, until well after the
thirty-day period provided in the rule.
In Harris v. Stewart,
981 S.W.2d 122, 124 (Ky.App. 1998), a panel of this Court
stated, “[o]nce a party has been served with a request for
admissions, that request cannot simply be ignored with
impunity.”
And, “the trial court retains wide discretion to
permit a party’s response . . . to be filed outside the 30 or
45-day time limit . . .
.”
Part of appellant’s argument
Id.
for the trial court to reconsider the admissions is due to the
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alleged defense appellant would have in refusing to answer – his
assertion of the Fifth Amendment right against selfincrimination in a separate action.
That argument is also
without merit because under CR 36.02, “[a]n admission made by a
party under Rule 36 is for the purpose of the pending action
only and is not an admission by him for any other purpose nor
may it be used against him in any other proceeding.” Id.
Considering the limited scope of the admissions and the length
of time it took the appellant to respond, after numerous
opportunities, the trial court did not abuse its discretion in
not vacating or amending the order as to the admissions.
The second issue is whether or not there was a
negotiated property settlement agreement.
More specifically,
was the appellee’s attorney’s fax of June 19, 2003, an
acceptance of a prior offer, or was it a counter-offer.
Settlement agreements are governed by contract law.
Frear v.
P.T.A. Industries, Inc., 103 S.W.3d 99, 105 (Ky. 2003); Cantrell
Supply, Inc. v. Liberty Mutual Insurance Co., 94 S.W.3d 381, 384
(Ky.App. 2002).
“With respect to compromise or settlement of a
claim, final decision-making authority rests with the client.”
Clark v. Burden, 917 S.W.2d 574, 575 (Ky. 1996).
The Clark
Court determined “that in ordinary circumstances, express client
authority is required.
Without such authority, no enforceable
settlement agreement may come into existence.”
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Id. at 576.
In
our case, it is clear that the appellant did not approve the
settlement which included the insurance check following the
vehicle.
That same offer was made earlier and rejected.
After
appellant hired a new attorney, the offer was made again,
without mention of the insurance check.
In discussions between appellee’s attorney and
appellant’s attorney’s partner, the partner agreed that it
sounded reasonable that the insurance proceeds follow the
vehicle.
Clark, 917 S.W.2d at 577, makes it clear that a client
may give his attorney authority to settle the case and is
thereafter bound by any settlement.
148 S.W.3d 808 (Ky.App. 2004).
See also, Ford v. Beasley,
However, we do not believe the
parties in our case went beyond negotiations for a settlement.
The June 10, 2003, offer of settlement did not mention the
insurance check.
On June 16, 2003, the appellee’s attorney
discussed the insurance check with the partner of appellant’s
attorney.
If the partner was acting on behalf of appellant’s
attorney, the statement that a proposal sounds reasonable is not
an acceptance, but an offer to seek client approval of the
additional term.
See Venters v. Stewart, 261 S.W.2d 444, 446
(Ky. 1953) wherein the court held “[a]n acceptance of an offer
must be unequivocal in order to create a contract.”
“It is not
enough that there are words or acts which imply a probable
acceptance.”
Id.
The June 10, 2003, offer was never amended to
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reflect the insurance check which both sides were now aware of.
The attempted acceptance of June 19, 2003, contained an
additional item (disposition of the insurance check) which was
not included in the June 10, 2003, offer nor agreed to in the
June 16, 2003, discussion.
Under contract law, an acceptance
which includes additional terms than in the offer, constitutes a
counter-offer.
A & A Mechanical, Inc. v. Thermal Equipment
Sales, Inc., 998 S.W.2d 505, 511 (Ky.App. 1999); General Motors
Corp. v. Herald, 833 S.W.2d 804, 807 (Ky. 1992).
Therefore,
that part of the judgment must be reversed.
For the foregoing reasons, the judgment of the
Jefferson Family Court is affirmed in part, reversed in part,
and remanded.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Wallace N. Rogers
Louisville, Kentucky
Linda Y. Atkins
Louisville, Kentucky
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