SIMPSON (PHILLIP) VS. FANNIN (JERRY)

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RENDERED: AUGUST 28, 2009; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2008-CA-001497-MR PHILLIP SIMPSON v. APPELLANT APPEAL FROM FLOYD CIRCUIT COURT HONORABLE JOHN DAVID CAUDILL, JUDGE ACTION NO. 07-CI-00234 JERRY FANNIN APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: CLAYTON AND THOMPSON, JUDGES; LAMBERT,1 SENIOR JUDGE. CLAYTON, JUDGE: This is an appeal from an order granting summary judgment in the Floyd Circuit Court. Appellants, Phillip and Christina Simpson (Simpsons) argue that the trial court granted the motion for summary judgment before the ten 1 Senior Judge Joseph Lambert sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580. days notice requirement pursuant to Kentucky Rules of Civil Procedure (CR) 56.03 had expired. DISCUSSION The Simpsons argue that they were denied due process of law when the trial court granted Fannin’s motion for summary judgment. Specifically, they argue that the trial court did not follow the procedural requirement set forth in CR 56.03 which provides that a “motion shall be served at least 10 days before the time fixed for the hearing.” It is possible to waive this requirement, however, as the court held in Equitable Coal Sales, Inc. v. Duncan Machinery Movers, Inc., 649 S.W.2d 415 (Ky. App. 1983). In Equitable Coal, the Court held that the ten day rule may be waived in a case where the opposing party “did not ask for a continuance, did not argue against the motion on the day of the hearing, and has not shown any prejudice by having fewer than ten days notice of the hearing.” Id. at 416. In this action, the motion for summary judgment was filed on June 9, 2008. On June 13, 2008, the motion was heard at the trial court’s regular motion hour. Counsel of record for both parties were present at the June 13th motion hour. They agreed that the motion was ready for submission to the court and opposing counsel never objected to the motion being submitted to the court. It was not until -2- June 18, 2008, that the appellant’s counsel objected and filed a motion to alter, amend or vacate, which the trial court denied. We find that the trial court did not err in making a finding on the issue of summary judgment prior to the expiration of ten days as set forth in CR 56.03. Clearly, the actions of opposing counsel indicate the waiver of this procedural requirement and he has not shown any prejudice by having fewer than ten days notice of the hearing. Thus, we will affirm the decision of the trial court. ALL CONCUR. BRIEF FOR APPELLANT: BRIEF FOR APPELLEE: J. Drew Anderson Prestonsburg, Kentucky Jimmy C. Webb Prestonsburg, Kentucky -3-

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