JAMES S. BULLOCK v. PACKARD BELL NEC, INC.
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RENDERED:
JANUARY 26, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001416-MR
JAMES S. BULLOCK
v.
APPELLANT
APPEAL FROM BOONE CIRCUIT COURT
HONORABLE JOSEPH F. BAMBERGER, JUDGE
ACTION NO. 98-CI-01014
PACKARD BELL NEC, INC.
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, McANULTY, AND TACKETT, JUDGES.
McANULTY, JUDGE: James Bullock appeals from the Boone Circuit
Court order dismissing his suit for failure to state a claim upon
which relief can be granted, pursuant to CR 12.02, and the order
denying his motion for a default judgment, pursuant to CR 55.01.
Upon a review of the record, we find no error and therefore
affirm.
According to his Complaint, on February 28, 1995,
Bullock purchased a Packard Bell computer system.
Included in
the purchase price was a warranty contract which provided for one
year of on-site service.
Bullock asserts that on December 17,
1995, he contacted Packard Bell to have them repair or replace a
defective modem.
After sixty days had passed and the modem had
not been repaired or replaced, Bullock sent a letter dated
February 15, 1996, to the president of Packard Bell, informing
him that Bullock considered Packard Bell in breach of its “OnSite Limited Warranty.”
This letter also notified Packard Bell
that Bullock assessed what he deemed a “performance penalty”
against them in the amount of $500,000.00.
Bullock granted
Packard Bell thirty days in which to pay the penalty before
interest at the rate of 10% per month would begin to accrue.
After Packard Bell surprisingly failed to pay the performance
penalty, Bullock filed suit pro se in circuit court to recover
the amount.
Packard Bell filed a notice of removal of the action to
the United States District Court for the Eastern District of
Kentucky.
The U.S. District Court eventually entered an order on
February 10, 1999, remanding the case back to Boone Circuit Court
for failure to satisfy the court’s jurisdictional amount.
Once
the Boone Circuit Court again possessed jurisdiction, Packard
Bell moved to dismiss on the grounds that the complaint failed to
state a claim upon which relief may be granted.
Subsequently,
Bullock filed a motion for a default judgment on the grounds that
counsel for Packard Bell had failed to respond to his requests
for proof of their license to practice law in Kentucky.
On May
19, 1999, the trial court dismissed Bullock’s action with
prejudice and on May 21, 1999, it denied Bullock’s motion for a
default judgment.
This appeal followed.
-2-
Bullock essentially argues that the trial court erred
in granting the motion to dismiss.
He also implies that the
trial court is part of a conspiracy.
Finally, he contends that
the trial court erred in denying his motion for a default
judgment.
In considering the motion to dismiss, the trial court
was bound to liberally construe the pleadings in the light most
favorable to the plaintiff and take as true all allegations
contained in the complaint.
S.W.2d 867 (1987).
Gall v. Scroggy, Ky. App., 725
Upon a review of the complaint and the
record, we conclude that the trial court did not err in deciding
that Bullock failed to state a claim.
On appeal, Bullock couches
his claim as one for breach of contract.
However, it is clear
from the complaint that Bullock sought to collect a “performance
penalty” which he unilaterally assessed against Packard Bell.
While we may appreciate his frustration in dealing with
Packard Bell to get his modem replaced or repaired, there is
simply no basis in common law or statutory law which would permit
him to recover this fee.
In fact, the warranty to which he
refers expressly states:
NEITHER PACKARD BELL NOR ITS AUTHORIZED
SERVICE PROVIDER SHALL BE LIABLE FOR ANY
SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES
OR FOR LOSS, DAMAGE OR EXPENSE DIRECTLY OR
INDIRECTLY ARISING FROM CUSTOMER’S USE OF OR
INABILITY TO USE THE EQUIPMENT EITHER
SEPARATELY OR IN COMBINATION WITH OTHER
EQUIPMENT, OR FOR PERSONAL INJURY OR LOSS OR
DESTRUCTION OF OTHER PROPERTY, OR FROM ANY
OTHER CAUSE. (Emphasis in original.)
-3-
The warranty therefore prohibits the imposition of any damages,
including a “performance penalty”.
At the trial court level Bullock indicated that he
modified the warranty, by assessing the performance penalty,
pursuant to KRS 355.2-201(2).
His argument is without merit as
he has misconstrued this statute.
The aforementioned statute is
the statute of frauds which requires a writing for a contract for
the sale of goods over $500.
The particular subsection to which
Bullock refers provides:
Between merchants if within a reasonable time
a writing in confirmation of the contract and
sufficient against the sender is received and
the party receiving it has reason to know its
contents, it satisfies the requirements of
subsection (1) against such party unless
written notice of objection to its contents
is given within ten (10) days after it is
received.
KRS 355.2-201(2).
Subsection (1) requires contracts for the sale
of goods over $500 be in writing.
In other words, subsection (2)
concerns a writing in confirmation of a contract for the sale of
goods and circumvents the requirement that the contract be signed
by the party against whom it is enforced.
This law is not
applicable to the current situation because Bullock is not
attempting to enforce a contract for the sale of goods.
The
letter, or confirmatory memorandum, upon which he relies is not a
contract for the sale of goods but Bullock’s attempt to suggest a
remedy for Packard Bell’s breach of warranty.
Bullock cannot
invoke KRS 355.2-201(2) to automatically bind Packard Bell to pay
a “performance penalty” he assessed, to which Packard Bell has
not assented.
-4-
In short, the letter Bullock sent to the president of
Packard Bell had no legally binding effect whatsoever.
Because
he sued to enforce the contents of this letter, the trial court
correctly determined that Bullock failed to state a claim upon
which relief could be granted.
In light of our decision,
Bullock’s argument concerning the conspiracy theory must fail.
The trial court acted properly at all times, including
the denial of Bullock’s motion for default judgment.
Bullock
contends that because counsel for Packard Bell failed to
demonstrate their admission to practice law in the Commonwealth
of Kentucky, all pleadings filed by said counsel shall be held as
void and he is therefore entitled to a default judgment for
Packard Bell’s failure to answer.
There is no requirement that
counsel respond to Bullock’s request for such information.
The
Kentucky Supreme Court governs the admission to the practice of
law within this Commonwealth.
SCR 2.000, et seq.
In response to
a request, Bullock received certification, dated April 20, 1999,
from the Clerk of the Supreme Court that both counsel had been
admitted to the practice of law in Kentucky.
He also received a
letter from the deputy clerk of the Supreme Court which informed
him that he could inquire from the Kentucky Bar Association as to
the current status of attorneys admitted to the practice of law
in Kentucky.
In light of the evidence that counsel for Packard
Bell have been admitted to practice in Kentucky and in the
absence of evidence that said counsel are not currently in good
standing, the trial court properly denied Bullock’s motion for
default judgment.
-5-
For the foregoing reasons, the orders of the trial
court are affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
James S. Bullock, pro se
Hebron, KY
Samuel D. Hinkle IV
Lea Pauley Goff
Stoll, Keenon & Park, LLP
Louisville, KY
-6-
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