HALL & DAVIS COMPANY v. A.D. WHITE COMPANY, INC. A.D. WHITE COMPANY, INC. v. HALL & DAVIS COMPANY
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RENDERED: MAY 18, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000463-MR
HALL & DAVIS COMPANY
APPELLANT
APPEAL FROM SHELBY CIRCUIT COURT
HONORABLE WILLIAM F. STEWART, JUDGE
ACTION NO. 98-CI-00333
v.
A.D. WHITE COMPANY, INC.
AND
APPELLEE
NO. 2000-CA-000693-MR
A.D. WHITE COMPANY, INC.
CROSS-APPELLANT
CROSS-APPEAL FROM SHELBY CIRCUIT COURT
HONORABLE WILLIAM F. STEWART, JUDGE
ACTION NO. 98-CI-00333
v.
HALL & DAVIS COMPANY
CROSS-APPELLEE
OPINION
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE:
BUCKINGHAM, COMBS, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
Hall & Davis Company appeals from a judgment of
the Shelby Circuit Court in the sum of $22,016.82 representing an
unpaid invoice and service charges due A.D. White Company, Inc.
(White).
White cross-appeals on the issue of interest on the
judgment.
Having reviewed the record and applicable law, we
affirm in part, reverse in part, and remand.
A.D. White Company, Inc. is in the business of serving
as a broker for lumber and related products.
On June 1, 1993,
White entered into a written agreement (hereinafter, the
“Agreement”) with Hall & Davis which provided that White
“agree[d] to sell lumber to Hall & Davis on the basis of 30 day
Net terms and service charge of 2% per month for accounts past 30
days."
The Agreement was signed for Hall & Davis by Greg Harrod,
Manager.
On June 30, 1998, White filed an action against Hall &
Davis contending that Hall & Davis had defaulted on its
obligations and owed White the sum of $29,937.09 through May 30,
1998.
This total included several unpaid invoices as well as
service charges which had accrued.
In response, Hall & Davis
denied that it had received the goods represented by one of the
invoices, and further contended that Harrod did not have the
authority to bind it to the terms set out in the Agreement.
A trial was scheduled for January 25, 1999, on which
date the court instead held a hearing in chambers, and Hall &
Davis was directed to pay to White all undisputed invoices,
including pre-judgment interest at the rate of 8% per annum.
Hall & Davis made the payment as instructed.1
White contended
that the balance as of the date of the payment, January 25, 1999,
1
This payment consisted of principle of $11,124.91 and
interest of $1,246.58.
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had grown to $34,388.31, hence, after the payment White claimed
that Hall & Davis still owed a balance of $22,016.82.
This
balance represented the total of the disputed invoice, No. 97204,
in the amount of $5,806.24, and the unpaid service charges which
had accrued per the Agreement.
On September 13, 1999, White filed a motion for summary
judgment, requesting the court grant judgment against Hall &
Davis in the amount of $22,016.82 plus interest at the rate of 2%
per month from January 25, 1999 until paid, plus court costs.
In
support of the motion, White presented the sworn deposition
testimony of Jeff DeCosta, the truck driver who had delivered the
goods represented by invoice No. 97204 to Hall & Davis, and a
receipt acknowledging delivery of the goods signed by Charles
McIntosh, an employee of Hall & Davis.
Additionally, White
provided the sworn affidavit of its president, Harry White, which
stated that the outstanding balance owed by Hall & Davis as of
January 25, 1999 was $22,016.82, and that Hall & Davis had
previously paid service charges on its account between 1993 and
1996 per the Agreement signed by Harrod.
(The affidavit was
attached to the motion for summary judgment and included in the
record on appeal.)
Hall & Davis filed a response on October 5,
1999, addressing only the issue of the disputed invoice.
Hall &
Davis contended that only a partial load was delivered with
regard to the disputed invoice.
The response stated that Mr.
McIntosh and Carl Tindall, employees of Hall & Davis, saw that a
full load was not delivered, and that this information was
supplied to Hall & Davis's counsel by its president, Donald
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Hamilton.
Hall & Davis provided no sworn affidavits nor any
other evidence to support its contentions.
Finding that no
issues of material fact existed, on January 24, 2000, the court
entered an order finding White was entitled to summary judgment
as a matter of law.
The court granted a judgment against Hall &
Davis in the amount of $22,016.82 plus interest thereon at the
rate of 12% per annum from the date of entry of the judgment,
January 24, 2000, until paid, and court costs.
This appeal and
cross-appeal followed.
On appeal, Hall & Davis contends that the trial court
erred in granting the summary judgment as there were genuine
issues of material fact as to whether the entire load of goods
represented by the disputed invoice was delivered to Hall &
Davis.
Hall & Davis further argues that issues of material fact
existed as to whether any interest (service charges) was owing at
all, the method of computation, and the total amount owed.
The record contains the sworn affidavit of Jeff
DeCosta, as well as a receipt signed by Charles McIntosh, an
employee of Hall & Davis.
DeCosta testified that he delivered
the load at issue, which was ten bundles of lumber, to Hall &
Davis on October 9, 1997.
DeCosta produced a delivery receipt,
attached as an exhibit to the deposition testimony, showing that
ten units had been unloaded on October 9, 1997, and testified
that it is the customer who unloads the truck.
The receipt was
filled out and signed by DeCosta, and signed on behalf of Hall &
Davis by Charles McIntosh.
Hall & Davis provided no affidavits
or other evidence to support its contention that the load was
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only partially delivered.
evidence.
The attorney’s response is not
Hence, we agree that no issue of material fact existed
as to whether the entire load of goods represented by the
disputed invoice was delivered to Hall & Davis.
Hall & Davis further contends that no service
charges are owing as Greg Harrod, who signed the Agreement, did
not have the authority to bind the company to its terms.
As
manager, Harrod clearly had implied authority to bind Hall &
Davis to the Agreement, which involved purchases made in the
ordinary course of Hall & Davis’s business.
R.H. Kyle Furniture
Co. v. Russell Dry Goods Co., Ky., 340 S.W.2d 220 (1960).
Further, Harrod clearly had both actual and apparent authority to
bind Hall & Davis, as the Agreement was signed by Harrod in 1993,
and not contested by Hall & Davis until after White’s complaint
was filed in 1998.
Id.
Finally, Hall & Davis contends that issues of material
fact existed with regard to the method of computation of
interest, which White compounded monthly, and the total amount
owed.
The Agreement provided for a service charge of 2% per
month on the unpaid balance.
This is a contractual term which
allows for calculation of interest monthly.
Therefore, the court
was correct in compounding the interest monthly, as did White,
per the terms of the Agreement to calculate the amount owed as
$22,016.82.
The standard of review of a trial court’s granting of
summary judgment is “whether the trial court correctly found that
there were no genuine issues as to any material fact and that the
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moving party was entitled to judgment as a matter of law.”
Scifres v. Kraft, Ky. App., 916 S.W.2d 779, 780 (1996).
We are
to view the record in the light most favorable to the party
opposing the motion and resolve all doubts in its favor.
Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807
S.W.2d 476, 480 (1991).
Having viewed the record in the light
most favorable to Hall & Davis, we adjudge that no issues of
material fact existed and that White was entitled to judgment as
a matter of law.
On cross-appeal, White contends that the trial court
erred, as the amount awarded did not include any interest from
January 25, 1999 until the date of final judgment, January 24,
2000.
White contends that interest upon the judgment amount
should have been calculated from the date the amount due White
was originally calculated, January 25, 1999.
White further
contends that the court erred by not awarding post-judgment
interest based upon the written contract between the parties, per
KRS 360.040.
We agree that the court erred and should have continued
compounding the interest monthly per the terms of the Agreement
until the date of the final judgment, January 24, 2000.
After
the judgment, KRS 360.040 provides for 12% interest compounded
annually, or interest in accordance with a written obligation,
whether higher or lower than 12%.
The Agreement provided for a
2% per month service charge on the unpaid balance, the literal
interpretation of which provides for compounding monthly.
Davis presented no evidence to the contrary.
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Hall &
Hence, pursuant to
KRS 360.040, we believe interest should have been calculated per
the terms of the Agreement.
For the aforementioned reasons, the summary judgment of
the Shelby Circuit Court is affirmed.
That portion of the
judgment awarding interest is reversed and remanded for further
proceedings.
ALL CONCUR.
BRIEF FOR APPELLANT AND CROSSAPPELLEE:
BRIEF FOR APPELLEE AND CROSSAPPELLANT:
Fielding E. Ballard, III
Shelbyville, Kentucky
Michael V. Brodarick
Louisville, Kentucky
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