BEGLEY (MARK), ET AL. VS. CLAY BUILDING SUPPLY, INC.

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RENDERED: AUGUST 28, 2009; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2008-CA-000571-MR MARK BEGLEY AND KIM BEGLEY v. APPELLANTS APPEAL FROM LAUREL CIRCUIT COURT HONORABLE RODERICK MESSER, JUDGE ACTION NO. 07-CI-00363 CLAY BUILDING SUPPLY, INC. APPELLEE OPINION REVERSING AND REMANDING ** ** ** ** ** BEFORE: THOMPSON AND WINE, JUDGES; GRAVES,1 SENIOR JUDGE. THOMPSON, JUDGE: Mark Begley appeals from an order of the Laurel Circuit Court granting summary judgment in favor of Clay Building Supply, Inc., for breach of contract. Concluding that Begley was not afforded proper notice to defend against the summary judgment motion, we reverse and remand. 1 Senior Judge J. William Graves sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580. In January 2005, Begley established a line of credit with Clay Building for the purpose of obtaining building supplies and materials. These supplies and materials were periodically delivered to Begley’s worksite but were often left without Begley or his employees signing a delivery confirmation ticket. However, Begley received monthly invoices from Clay Building listing the delivered supplies that were billed to his credit account. Subsequently, Begley defaulted on his credit account payments, and Clay Building filed this action against him seeking $22,871.53 in damages, alleging breach of contract. After some discovery was exchanged, on December 19, 2007, Clay Building filed a motion for summary judgment against Begley. In its motion, it argued that Begley had no credible defense to its action, because he failed to identify any particular invoice where he was charged for supplies and materials that were not delivered. Thus, it argued that summary judgment was proper because Begley failed to pay for delivered goods as required by contract. In response, Begley contended that there was a genuine issue of material fact remaining, because Clay Building failed to establish that the invoices accurately reflected what supplies were delivered to him. Citing the deposition of Jerry Bingham, a Clay Building employee, Begley argued that the supplier’s common practice of failing to obtain delivery conformation tickets signed by contractors, particularly in his case, demonstrated a material issue of fact for a jury to decide as to what was actually delivered and accurately billed. -2- During the trial court’s civil motion docket, in addition to its written motion, Clay Building made an argument based on Kentucky’s Uniform Commercial Code (UCC). Begley was not provided with any advance notice of this substantive legal argument. After the trial court granted summary judgment based upon the UCC, this appeal followed. The standard of review of a trial court’s grant of summary judgment is whether it correctly found that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. Amos v. Clubb, 268 S.W.3d 378, 380-81 (Ky. App. 2008). Summary judgments are reserved for cases where the movant demonstrates that the non-moving party cannot, under any circumstances, prevail at trial. Price v. Godby, 263 S.W.3d 598, 601 (Ky. App. 2008). An appellate court reviews grants of summary judgment de novo. Baker v. Weinberg, 266 S.W.3d 827, 831 (Ky. App. 2008). CR 56.03 requires that all summary judgment motions be served on the non-moving party “at least 10 days before the time fixed for the hearing.” The ten-day notice requirement is designed to prevent parties from ambushing each other with last minute legal maneuvering. Rexing v. Doug Evans Auto Sales, Inc., 703 S.W.2d 491, 494 (Ky. App. 1986). The fundamental purpose of notice is to provide a party with a meaningful opportunity to present a defense to any legal or factual claim of the moving party. Conrad v. Lexington-Fayette Urban County Government, 659 S.W.2d 190, 197 (Ky. 1983). -3- We conclude that the trial court erred by granting summary judgment against Begley. Although Clay Building provided Begley with the required tenday notice found in CR 56.03, it advanced an entirely new legal theory at the hearing. Begley was not given adequate time to prepare a response or an affidavit in defense before the trial court ruled Clay Building’s new legal theory warranted summary judgment. Under these facts, courts must enforce the right of a party to a ten-day notice if litigants are to be afforded a meaningful opportunity to prepare and present a defense to a summary judgment motion. This will ensure that a stringent civil rule will not be circumvented in our courts by tactical moves of counsel. For the foregoing reasons, the order of the Laurel Circuit Court granting summary judgment is reversed and remanded for further proceedings consistent with this opinion. ALL CONCUR. BRIEF FOR APPELLANT: BRIEF FOR APPELLEE: Russell W. Burgin London, Kentucky R. Aaron Hostettler London, Kentucky -4-

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