CORINE MILLER v. NATHAN BAISE d/b/a JORDAN LUMBER COMPANY
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RENDERED: JUNE 16, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-000042-MR
CORINE MILLER
APPELLANT
APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE DAVID H. JERNIGAN, JUDGE
ACTION NO. 98-CI-00178
v.
NATHAN BAISE d/b/a
JORDAN LUMBER COMPANY
APPELLEE
OPINION
AFFIRMING IN PART AND VACATING IN PART
AND REMANDING
** ** ** ** **
BEFORE:
COMBS, KNOPF, and TACKETT, Judges.
COMBS, JUDGE:
Corine Miller (Miller) appeals from the Muhlenberg
Circuit Court order entered on December 4, 1998, which summarily
dismissed her suit against Nathan Baise (Baise), d/b/a Jordan
Logging, Inc. (Jordan), for damages arising from a timber
contract between the parties.
The trial court sustained Baise's
motion for summary judgment because it found no genuine issue as
to any material fact and determined that Baise was entitled to
judgment as a matter of law.
The primary issue on appeal is
whether the dismissal of Miller's suit was justified.
After
review of the trial record, we conclude that the summary judgment
was appropriate as to Miller’s claim of inducement by
misrepresentation--but not as to the claim of commercially
unreasonable removal of the timber from Miller’s property.
Accordingly, we affirm in part and vacate in part and remand.
In October and November of 1997, Ms. Miller engaged in
discussions with Jack Cranmer (Cranmer), an agent of Jordan,
regarding the possible sale of timber located on her property.
Jordan had been engaged in negotiations for the cutting of timber
on adjacent property and became interested in purchasing and
cutting a number of trees on Miller's land.
Cranmer marked
eighty (80) trees for purchase by Baise/Jordan.
On December 1,
1997, Miller met with Cranmer and Baise and executed a timber
contract for the eighty (80) marked trees at a price of $2000.00,
which was paid to Miller.
Jordan received permission from the
adjacent property owner to transport any timber taken from
Miller's land across his property.
On December 3, 1997, Jordan’s timber crew went to
Miller’s property to cut and remove the timber, but Miller
stopped them from doing so.
Jordan authorized Cranmer to offer
Miller an additional $600.00 to allow the crew to proceed.
Miller accepted this offer and also asked Jordan not to cut down
a few of the trees that had been marked and designated in the
contract of December 1, 1997.
Cranmer paid Miller $400.00
following this agreement and the other $200.00 on December 29,
1997, following the cutting and removal of the timber (including
a number of white oaks) from Miller’s land.
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Both payments were
evidenced by invoices provided by Jordan, and each invoice was
signed by Miller.
The December 29, 1997, invoice acknowledges
payment “in full”.
On April 13, 1998, Miller filed a complaint with the
Muhlenberg Circuit Court against Baise (as a representative of
Jordan), alleging that she was induced to enter into the December
1, 1997, contract by the misrepresentations of Jordan that white
oaks would not be cut and that the trees being cut were of
minimal value.
Miller also contended that the eighty (80) trees
were marked after the execution of the contract and that more
than eighty (80) trees were actually cut and removed.
Additionally, Miller claimed that Jordan failed to follow normal
and customary logging practices in removing the timber from her
land and failed to follow through on an alleged promise to repair
the damage resulting from the cutting and removal.
She asked for
damages in the form of compensation for the fair market value of
the timber cut and removed from her land as well as for the costs
of repairing the damages allegedly done to her property.
On November 13, 1998, attorneys for Baise/Jordan filed
a motion for summary judgment seeking a dismissal of the
complaint.
On December 4, 1998, the Muhlenberg Circuit Court
sustained this motion and dismissed Miller’s complaint.
In its
order dismissing, the court stated that summary judgment was
appropriate pursuant to CR 56 because there was no genuine issue
as to any material fact, holding that Baise/Jordan was entitled
to summary judgment as a matter of law.
The court’s conclusion
was primarily based on the argument of Baise/Jordan that Miller’s
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acceptance of the additional $600.00 -- particularly the second
payment of $200.00 -- after she allegedly had become aware of the
removal of white oaks constituted an accord and satisfaction of
her claim as a matter of law.
This appeal followed.
The standard of review on an appeal of a summary
judgment is whether the trial court correctly determined 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, 780 (1996).
In
determining whether summary judgment is appropriate, we are to
view the record "in a light most favorable to the party opposing
the motion for summary judgment and all doubts are to be resolved
in his favor."
Steelvest, Inc. v. Scansteel Service Ctr., Ky.,
807 S.W.2d 476, 480 (1991).
On appeal, Miller argues that summary judgment was
inappropriate in this case.
consideration.
Three of her contentions merit
Miller first maintains that accord and
satisfaction was inappropriately applied as there was no actual
disputed or unliquidated claim between the two parties.
Yutz v.
Commonwealth Life Ins. Co., 264 Ky. 142, 94 S.W.2d 326 (1936).
Second, Miller claims that the question of whether or not she was
induced to enter into the timber contract by the
misrepresentations of Jordan was a disputed material fact that
should have gone to a jury--precluding entry of summary judgment.
Third, Miller contends that the trial court could not as a matter
of law make a finding that she was not entitled to seek damages
for the allegedly negligent manner in which the timber was cut
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and removed from her property.
We will address each of these
arguments in turn.
Miller contends that the second agreement between the
two parties did not constitute an accord and satisfaction as
there was no disputed or unliquidated claim.
Instead, she claims
that the agreement constituted a "novation".
1 Am. Jur. 2d
Accord and Satisfaction § 1 (1994), states that "accord and
satisfaction" is:
a method of discharging a claim whereby the parties
agree to give and accept something other than that
which is due in settlement of the claim and to perform
the agreement. An 'accord' is the agreement and
'satisfaction' is its execution and performance.
In contrast, a "novation" is defined as "a mutual agreement
between the parties concerned for the discharge of a valid
existing obligation by the substitution of a new valid
obligation."
58 Am. Jur. 2d Novation § 1 (1994).
The distinction between the doctrine of accord and
satisfaction and the concept of novation is that a new obligation
is created by a novation generally extending beyond the original
parties and maybe encompassing more or less subject matter than
the original agreement.
3 (1994).
1 Am. Jur. 2d Accord and Satisfaction §
In contrast, an accord and satisfaction "refers to the
debt or controversy between the original parties arising upon the
original subject matter, and the satisfaction relates directly to
that controversy." (Emphasis supplied.)
Id.
Miller argues that
an accord and satisfaction was inappropriate because there was no
“controversy” as to the terms of the contract.
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We do not agree.
Miller initially stopped Jordan’s timber crew from
cutting her trees because she disputed their value as it had been
represented to her by Jordan.
To settle the dispute, Jordan
offered additional consideration ($600.00) and also agreed not to
cut down a number of trees that were part of the original
contract.
An “accord” was reached when Miller agreed to allow
the timber to be cut, fulfilling her obligation under the
original contract, in exchange for this new consideration.
This
accord was “satisfied” upon Miller’s receipt of the final $200.00
and signing of the invoice indicating payment “in full”.
Hodges
v. Daviess County, 285 Ky. 508, 148 S.W.2d 697, 701 (1941).
We
conclude that the second agreement between the two parties
constituted a valid accord and satisfaction.
Miller next contends that the trial court had no right
to find an accord and satisfaction as a matter of law because the
question of misrepresentation by Jordan was a disputed material
issue that belonged in the hands of a jury. An accord and
satisfaction exists as a matter of law when the controlling facts
of the case are “undisputed and clear”.
Bruestle v. S & M
Motors, Inc., Ky. App., 914 S.W.2d 353, 354 (1996).
In Bruestle,
a buyer brought suit against a car dealership, claiming fraud and
statutory violations.
The claim was based on the purchase of a
used car that had more miles than the odometer showed at the time
of purchase.
After discovering the discrepancy, the buyer
asserted that the dealership had committed fraud but agreed to
exchange the used car for a new one at no additional cost.
Following receipt of the vehicle, the buyer filed suit against
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the dealership.
The trial court sustained the dealership’s
motion for summary judgment, finding that the acceptance of the
new car constituted an accord and satisfaction as a matter of law
because the controlling facts of the case were “undisputed and
clear”.
Id.
The controlling facts of this case are equally
“undisputed and clear”.
Miller stated in her deposition that she
initially stopped Jordan from cutting her timber on December 3,
1997, because she felt she had been misled as to the value of
that timber and wanted more money than the $2000.00 she had
already received.
Indeed, the appraisal of the cut timber months
after its removal indicated that her suspicion may have very well
been true.
As was the case in Bruestle, however, the appellant
did not then take action on the basis of this alleged fraud or
misrepresentation.
accord with Jordan.
Instead, she elected to enter into a new
It is not disputed by either party that--
despite her concerns -- Miller nonetheless accepted Jordan’s
offer of an additional $600.00, the final $200.00 of which was
accepted after Miller had seen that white oaks had been cut and
removed.
By signing the second invoice and thereby acknowledging
payment “in full,” Miller may not have subjectively believed that
she was waiving her rights to seek damages for the alleged
misrepresentations made by Jordan.
However, she does not dispute
“the controlling facts that we find to be a clear indication of
an accord and satisfaction.”
Bruestle, supra, at 354.
As a
result, the issue of accord and satisfaction became fixed as a
matter of law and formed a proper basis for entry of summary
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judgment by the trial court because it would indeed have been
impossible for Miller “to produce evidence at the trial
warranting a judgment in [her] favor.”
Bruestle, supra, at 355,
citing Steelvest, supra at 483.
Miller further contends that the second agreement for
the additional $600.00 was also fraudulently induced since Jordan
allegedly continued to insist that the timber was of poor
quality. She maintains that she relied on this misrepresentation
in accepting the money.
However, we have not found any evidence
in the record to support this bare contention.
Consequently, we
cannot say that the court was clearly erroneous in its finding.
Jordan urges that it was entitled to summary judgment
on the basis of the doctrine of equitable estoppel.
Equitable
estoppel is applied in situations where “it would be
unconscionable to permit a person to maintain a position which is
inconsistent with one in which he has acquiesced.”
Combs, 311 Ky. 149, 223 S.W.2d 379, 381 (1949).
Hicks v.
Generally,
equitable estoppel is a question of fact turning on the
circumstances of a particular case.
Bruestle, supra at 355,
citing McKenzie v. Oliver, Ky. App., 571 S.W.2d 102, 106 (1978).
Bruestle emphasizes that the circumstances of a case may render
summary judgment appropriate.
Id. at 355.
We agree that summary
judgment on the basis of equitable estoppel was appropriate in
this case.
Miller admits in her affidavit that she accepted the
additional $600.00 even though she “suspected” that Jordan had
misrepresented the value of her timber and even after she saw
that white oaks had been cut.
“The facts that support the
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court’s conclusion that an accord and satisfaction existed also
establish estoppel.”
Bruestle, supra at 355.
The same facts
that support a summary judgment on the basis of accord and
satisfaction apply equally as to the doctrine of equitable
estoppel, rendering either theory a viable basis for sustaining
the summary judgment.
Miller’s third contention is that the trial court could
not find as a matter of law that she was not entitled to seek
damages for the allegedly negligent and commercially unreasonable
manner in which the timber was cut and removed from her property.
The record indicates that Jordan removed the timber during a
period of rainy weather that left a large amount of mud.
This
removal left a large number of gullies and branches on Miller’s
property that she alleges would not have happened had Jordan
followed “normal and customary logging practices.”
Miller argues
that her claim for damages as to the manner in which Jordan
removed the timber from her land should not have been dismissed
as a matter of law.
She describes this second claim as one
“totally distinct and separate” from the issue of fraudulent
inducement to enter into the underlying contract.
We agree.
The trial court stated in its summary judgment order
that all of Miller’s claims essentially were precluded by her
acceptance of the additional money and signing of the invoices-including the property damage.
We do not agree.
In its
memorandum of authorities, Baise/Jordan makes no effort to
address or rebut Miller’s contention as to the commercially
unreasonable removal of the timber.
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Negligence claims traditionally turn on the question of
whether or not a party acted reasonably -- “a classic jury
question”.
Estep v.
B.F. Saul Real Estate Inv. Trust, Ky. App.,
843 S.W.2d 911, 914-15 (1992).
As a result, summary judgment
seldom applies in negligence cases.
It is even more difficult --
if not impossible -- to justify summary judgment when the moving
party provides absolutely no evidence to satisfy its burden of
showing there are no issues of material fact as to a particular
claim.
Under Kentucky law, the moving party has the burden of
convincing the court of the nonexistence of an issue of material
fact.
Steelvest, supra, at 480.
Summary judgment is only proper
where the moving party shows that the adverse party could not
prevail under any circumstances.
Id. at 480.
Thus, as Baise/
Jordan failed to rebut her allegations on this point, Miller’s
claim of negligent removal was sufficient to survive a motion for
summary judgment as it would not be patently impossible for her
to prevail at trial.
Estep, supra at 915.
“It is clearly not the purpose of the summary judgment
rule...to cut litigants off from their right of trial if they
have issues to try.”
Steelvest, supra at 480.
Therefore, we
vacate the summary judgment as to Miller’s claim of commercially
unreasonable timber removal by Jordan and remand that issue to
the trial court for additional consideration.
We affirm in part and vacate in part and remand the
judgment of the Muhlenberg Circuit Court for proceedings
consistent with this opinion.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
James T. Kelley
Elizabethtown, KY
Ralph D. Vick
Greenville, KY
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