OAKWOOD MOBILE HOMES, INC. v. DALINE WETHINGTON
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RENDERED:
AUGUST 30, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-001845-MR
OAKWOOD MOBILE HOMES, INC.
APPELLANT
APPEAL FROM MERCER CIRCUIT COURT
HONORABLE DARREN W. PECKLER, JUDGE
ACTION NO. 00-CI-00336
v.
DALINE WETHINGTON
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, JOHNSON AND SCHRODER, JUDGES.
JOHNSON, JUDGE:
Oakwood Mobile Homes, Inc., has appealed from
an order entered by the Mercer Circuit Court on August 21, 2001,
which denied its motion to compel arbitration pursuant to KRS1
417.060.
Having concluded that the trial court’s factual
findings are supported by substantial evidence and that it
correctly applied the law to those facts, we affirm.
On August 20, 1999, Daline S. Wethington purchased a
mobile home from Oakwood at its Stanford, Kentucky, sales center
for approximately $60,000.00.
1
Wethington also paid Oakwood to
Kentucky Revised Statutes.
install the mobile home on her Mercer County property.
In
conjunction with the purchase of the mobile home, the parties
entered into an arbitration agreement whereby Wethington agreed
to submit any dispute with Oakwood concerning the mobile home to
arbitration.
According to the arbitration agreement, either
party can initiate arbitration procedures by sending written
notice of an intent to arbitrate to the other party and to the
American Arbitration Association at its Charlotte, North
Carolina, office.
In December 1999, Wethington forwarded a letter, via
certified mail, to Grant Williams, Oakwood’s agent at the
Stanford sales center.
In her letter, Wethington requested
arbitration concerning several deficiencies with the mobile home
and its installation.
This handwritten letter further stated
that pictures of the mobile home have been forwarded to
“arbitration and Oakwood Homes N.C.”
This letter was ultimately
returned to Wethington by the postal service because it was never
claimed by the Stanford sales center.
On November 3, 2000, approximately 11 months after
Wethington sent the letter requesting arbitration to Oakwood, she
filed a civil action against Oakwood in the Mercer Circuit Court.
Her complaint alleged that Oakwood delivered the mobile home
late, in a damaged and unfinished condition, and that it failed
to properly install the home.
Wethington also alleged that
Oakwood made material, fraudulent, deliberate and substantial
misrepresentations to her during the course of this transaction.
Oakwood denied these allegations.
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On June 29, 2001, Oakwood moved the trial court to
enforce the arbitration agreement that had been signed by both
parties and to compel arbitration pursuant to KRS 417.060.
At a
hearing held on August 15, 2001, the trial court examined
Wethington’s unclaimed letter to Oakwood, and found that
Wethington had attempted to comply with the notice provision of
the arbitration agreement by sending the certified letter to
Oakwood, and that Oakwood had refused to accept the letter.
The
trial court then ruled as a matter of law that Oakwood was
estopped from demanding arbitration in this matter, and denied
its motion to compel arbitration.
This appeal followed.
“[O]ur review of a trial court’s ruling in a KRS
417.060 proceeding is according to usual appellate standards. . .
. [W]e defer to the trial court’s factual findings, upsetting
them only if clearly erroneous, [i.e.] if unsupported by
substantial evidence, but we review without deference the trial
court’s identification and application of legal principles.”2
All of Oakwood’s arguments on appeal relate to its claim that
Wethington failed to meet her burden of proof in establishing
estoppel.3
Since the trial court made factual findings which
2
Conseco Finance Servicing Corp. v. Wilder, Ky.App., 47
S.W.3d 335, 340 (2001).
3
In Electric & Water Plant Board of Frankfort v. Suburban
Acres Development, Inc., Ky., 513 S.W.2d 489 (1974), it is
stated:
The essential elements of equitable
estoppel are “(1) conduct which amounts to a
false representation or concealment of
material facts, or, at least, which is
calculated to convey the impression that the
facts are otherwise than, and inconsistent
(continued...)
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supported Wethington’s claim of estoppel, the only way Oakwood
can prevail on appeal is for this Court to determine that the
trial court’s factual findings were clearly erroneous.4
After reviewing the record on appeal, we conclude that
Oakwood cannot prevail since the record on appeal fails to
include the hearing held on August 15, 2001.
From the record on
appeal, all we know for certain concerning that hearing is that
the trial court opened Wethington’s unclaimed letter and that the
trial court subsequently made factual findings concerning
Wethington’s attempt to give notice to Oakwood.
Since no
videotape, audiotape or transcript of that hearing has been filed
with this Court as part of the record on appeal, we must assume
that the evidence presented at the hearing supported the trial
court’s findings.
“It is a rule of universal application in this
and all other appellate courts that where all the evidence is not
brought up on appeal, every fact necessary to support the finding
3
(...continued)
with, those which the party subsequently
attempts to assert; (2) the intention, or at
least the expectation, that such conduct
shall be acted upon by, or influence, the
other party or other persons; and (3)
knowledge, actual or constructive, of the
real facts. And, broadly speaking, as
related to the party claiming the estoppel,
the essential elements are (1) lack of
knowledge and of the means of knowledge of
the truth as to the facts in question; (2)
reliance, in good faith, upon the conduct or
statements of the party to be estopped; and
(3) action or inaction based thereon of such
a character as to change the position or
status of the party claiming the estoppel, to
his injury, detriment, or prejudice.”
4
Kentucky Rules of Civil Procedure (CR) 52.01.
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or judgment of the lower court must be assumed to have been in
favor of the successful party.”5
It is the appellant’s responsibility to have the record
certified and prepared by the clerk within the time prescribed.6
The appellant is also required to designate untranscribed
portions of the trial record for inclusion in the record on
appeal.7
Oakwood failed to designate the untranscribed portions
of the record, which included the evidence and arguments before
the trial court at the hearing on August 15, 2001.
Without
having the untranscribed material to review, we must presume that
the action of the trial court was correct.8
The only claim by Oakwood in this appeal that could
possibly be resolved without reference to the record is its claim
concerning the alleged inadequacy of the trial court’s factual
findings.
However, Oakwood has failed to state in its brief how
this issue was preserved for review as required by CR
76.12(4)(c)(v); and from our review of the record, we must
conclude that it was not preserved.
In Cherry v. Cherry,9 our
Supreme Court held that any failure by the trial court to make
adequate findings of fact as required by CR 52.02 or CR 52.04
5
Commonwealth, Department of Highways v. Richardson, Ky.,
424 S.W.2d 601, 603 (1968)(quoting Wilkins v. Hubbard, 271 Ky.
780, 113 S.W.2d 441, 442 (1938)). See also Miller v.
Commonwealth, Department of Highways, Ky., 487 S.W.2d 931 (1972).
6
CR 73.08; CR 75.07(5); Ventors v. Watts, Ky.App., 686
S.W.2d 833, 834 (1985).
7
CR 75.01; Oldfield v. Oldfield, Ky., 663 S.W.2d 211 (1983).
8
Richardson, supra.
9
Ky., 634 S.W.2d 423, 425 (1982).
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that was not brought to the trial court’s attention by an
appropriate motion had been waived.
While Oakwood claims on
appeal that “the trial court failed to find [ ] any of the
elements of estoppel as they related to the conduct of Oakwood
complained of by [Wethington],” Oakwood failed to ask the trial
court to make these specific factual findings.
Thus, any
objection to the adequacy of the factual findings has been
waived.10
Accordingly, the Mercer Circuit Court’s order denying
Oakwood’s motion to compel arbitration is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
J. Bradford Derifield
Frankfort, Kentucky
No brief filed.
10
There is an exception to this rule when the record does
not contain sufficient evidence to support a factual finding as
to an essential element of this case. But, once again, Oakwood
is confronted with the problem of an incomplete record on appeal.
Thus, it must be presumed that the evidence before the trial
court was sufficient to support the required findings. See CR
52.03; and Rigazio v. Archdiocese of Louisville, Ky.App., 853
S.W.2d 295, 298 (1993).
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