KENNETH R. SCOTT v. MERCANTILE BANK OF KENTUCKY AND SUSAN A. SCOTT
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RENDERED: February 23, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000189-MR
KENNETH R. SCOTT
APPELLANT
APPEAL FROM LYON CIRCUIT COURT
HONORABLE BILL CUNNINGHAM, JUDGE
ACTION NO. 99-CI-00164
v.
MERCANTILE BANK OF KENTUCKY
AND SUSAN A. SCOTT
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, GUIDUGLI, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This is an appeal from a summary judgment
entered in favor of a lender in an action to collect on a
promissory note and mortgage which were in default.
The
mortgagor argues that summary judgment was premature because he
had filed a notice to take depositions in the matter.
He also
argues that the trial court erroneously amended the judgment and
ordered the sale of the property after he had filed his notice of
appeal.
Upon review of appellant’s arguments, the record herein
and the applicable law, we adjudge all three arguments to be
without merit.
Hence, we affirm.
In February of 1999, appellant, Kenneth Scott, and his
now ex-wife, Susan Scott, borrowed $82,295 from appellee,
Mercantile Bank of Kentucky (“Mercantile”), and executed a
mortgage on a piece of property in Eddyville as security for the
promissory note.
By October of 1999, the Scotts were in default
on the note and mortgage and, thus, on October 1, 1999,
Mercantile brought an action to call the note due and enforce the
mortgage.
Filed with the complaint were copies of the note and
mortgage.
By that time, Kenneth Scott and Susan Scott were
divorced.
On October 28, 1999, Kenneth Scott filed an answer and
cross-claim against Susan Scott alleging that she was obligated
under the divorce decree to pay the note and mortgage.
Susan
Scott never filed an answer to the complaint or cross-claim and
defaulted.
On December 3, 1999, Mercantile filed a motion for
summary judgment.
Attached to the motion was the affidavit of
Bill Hall, a corporate officer at Mercantile, stating that the
Scotts were in default on the note and mortgage, that there was
an acceleration clause, and the current amount due with interest
and attorney fees.
Said motion was noticed for a hearing on
January 3, 2000.
On December 15, 1999, Kenneth Scott filed a response to
the motion for summary judgment claiming that the motion was
premature because Scott had filed a notice to take a discovery
deposition on January 3, 2000 and because no proof had been taken
or submitted by the plaintiff.
Scott’s notice to take the
discovery deposition on January 3, 2000 was filed on the same
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date as his response to the motion for summary judgment,
December 15, 1999.
On December 16, 1999, Scott filed a notice to
change the deposition date from January 3, 2000 to January 27,
2000.
On December 17, 1999, Mercantile filed a notice to take
the deposition of Scott on January 27, 2000.
The trial court
entered summary judgment in favor of Mercantile on January 4,
2000, and ordered the sale of the property to satisfy the
judgment.
Scott filed a notice of appeal of the summary judgment
on January 18, 2000 without posting a supersedeas bond.
Because
the summary judgment did not resolve the cross-claim against
Susan Scott and contained no finality language, the appeal was
from an interlocutory order.
CR 54.02.
On January 31, 2000,
without motion of either party, the court sua sponte entered an
order amending the January 4 summary judgment to add the
requisite finality language.
The Report of Commissioner’s Sale
was filed by the Master Commissioner on February 10, 2000 stating
that the property at issue had been sold at public auction on
February 8, 2000 to Mercantile for $53,400.
On appeal, Scott argues first that the trial court
erred in entering the summary judgment for Mercantile when he had
filed notice to take a discovery deposition in the matter and he
had not been given the opportunity to take said deposition.
Summary judgment is proper where there are no genuine issues of
material fact and the movant is entitled to judgment as a matter
of law.
CR 56.03.
Fischer v. Heckerman, Ky. App., 772 S.W.2d 642 (1989);
Summary judgment should only be used to terminate
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litigation when, as a matter of law, it appears that it would be
impossible for the respondent to produce evidence at trial
warranting a judgment in his favor and against the movant.
Steelvest Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d
476 (1991).
However, the above standard does not negate the
respondent’s burden to present some proof of the existence of a
genuine issue of material fact.
Neel v. Wagner-Shuck Realty Co.,
Ky. App., 576 S.W.2d 246 (1978).
As to what form that proof must
take, CR 56.06 states that it shall be by affidavit which the
courts have construed as including any other pertinent materials
which will assist the court in adjudicating the merits of the
motion.
Conley v. Hall, Ky., 395 S.W.2d 575 (1965).
However,
the party opposing the motion cannot rely on his pleadings alone
to show the existence of a material issue of fact.
Hartford
Insurance Group v. Citizens Fidelity Bank & Trust Company, Ky.
App., 579 S.W.2d 628 (1979).
Scott argues that his notice to take deposition was
such sufficient proof to resist summary judgment.
agree.
We do not
CR 56.03 provides that the respondent may serve opposing
affidavits prior to the day of hearing.
Scott never filed an
affidavit in the case and did not file his notice to take
deposition until some two months after the action had been filed
and after the motion for summary judgment had been filed.
The
proposed deposition was not to be taken until after hearing on
the summary judgment motion.
The notice to take deposition was
nothing more than a chance to possibly obtain sufficient proof to
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withstand summary judgment.
It was not, in and of itself,
sufficient proof of the existence of a material fact.
In Hartford Insurance Group, 579 S.W.2d at 630, it was
held that the party opposing the motion need only be given the
opportunity to complete discovery before summary judgment is
entered against that party.
“It is not necessary to show that
the respondent has actually completed discovery, but only that
respondent has had an opportunity to do so.”
Id.
Scott had
three months to at least file an affidavit or complete discovery
in the present case, and we deem that sufficient opportunity to
complete discovery.
Accordingly, summary judgment was properly
entered against Scott.
The next argument we shall address is Scott’s claim
that the circuit court erred when it sua sponte amended the
judgment of January 4, 2000.
We are somewhat confounded by this
argument because, if the circuit court had not amended the
January 4 order to contain the requisite finality language,
Scott’s appeal to this Court would have been interlocutory and he
would not now be before this Court.
CR 54.02.
In any event,
Scott contends that the circuit court lost jurisdiction to amend
the judgment after he filed his notice of appeal to this Court.
It has been held that a premature notice of appeal is deemed to
relate forward to the effective date that the trial court enters
a final order.
Johnson v. Smith, Ky., 885 S.W.2d 944 (1994).
Since Scott’s notice of appeal was interlocutory, this Court did
not have jurisdiction until the order was made final.
v. Wood-Mosaic Corp., Ky., 454 S.W.2d 705 (1970).
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See Huff
CR 54.02
provides that an interlocutory order “is subject to revision at
any time before the entry of judgment adjudicating all the claims
and the rights and liabilities of all the parties.”
Hence, the
trial court did not err in amending the January 4 order.
Scott next argues that the trial court likewise lost
jurisdiction to order the sale of the property after he filed his
notice of appeal.
However, since Scott did not execute a
supersedeas bond in the case, the enforcement of the judgment
against him could not be stayed.
CR 62.03(1); CR 73.04.
Accordingly, the trial court did not err in proceeding with the
sale of the property.
For the reasons stated above, the judgment of the Lyon
Circuit Court is affirmed.
GUIDUGLI, JUDGE, CONCURS.
DYCHE, JUDGE, CONCURS IN RESULT ONLY.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, MERCANTILE
BANK OF KENTUCKY:
James E. Story
Eddyville, Kentucky
Kerry S. Smith
Paducah, Kentucky
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