MELBA COWAN v. ONTRACT, INC., D/B/A BLITZ BUILDERS, INC.
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RENDERED:
NOVEMBER 14, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2001-CA-002572-MR
MELBA COWAN
v.
APPELLANT
APPEAL FROM CRITTENDEN CIRCUIT COURT
HONORABLE TOMMY W. CHANDLER, JUDGE
ACTION NO. 98-CI-00054
ONTRACT, INC., D/B/A
BLITZ BUILDERS, INC.
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, JOHNSON AND SCHRODER, JUDGES.
JOHNSON, JUDGE:
Melba Cowan has appealed from an order of the
Crittenden Circuit Court entered on August 17, 2001, granting
the appellee’s motion for summary judgment.
Having concluded
that the trial court did not err in granting the motion for
summary judgment, we affirm.
On or around March 5, 1998,1 Cowan and Ontract, Inc.,
1
In Cowan’s complaint filed with the trial court, he lists March 5, 1998, as
the approximate date of the contract. Similarly, in Blitz’s brief to this
Court, it states the date of the contract as being March 5, 1998. However,
d/b/a Blitz Builders, Inc. (Blitz), entered into a contract
which called for Blitz to construct a metal-sided building on
land owned by Cowan.2
The building was completed on March 12,
1998, and Cowan signed a “Building Completion Certificate” on
that same day.
Around three weeks after the building was
completed, Cowan claims that he first noticed defects in the
building’s construction.
According to Cowan, “the metal had
started to crimp all along one side of the building, about 19”
from the bottom,” and the roof panels were “about 6” too short,”
which allowed rain and sunlight to pour through.
Cowan further
claims that representatives from Blitz agreed to repair the
alleged defects in the building, but the repairs were never
made.
On July 20, 1998, Cowan filed his complaint in the
Crittenden Circuit Court, alleging: (1) that Blitz failed to
construct the building in a workmanlike manner; (2) that Blitz
failed to use materials reasonably suited for the intended
purposes; (3) that Blitz failed to repair the defects under the
warranty as promised; and (4) that Blitz’s actions constituted a
in Cowan’s brief to this Court, he lists the date of the contract as
occurring a year earlier on March 5, 1997. Similarly, a “Building Completion
Certificate” and what appears to be a customer satisfaction survey indicate
that the contract was entered into on or around March 5, 1997. As neither
party has taken issue with these discrepancies, we proceed on the assumption
that the date of the contract as listed in Cowan’s complaint is correct.
2
According to Cowan’s brief, the purpose of the building was to aid Cowan in
his hobby of housing and raising “unusual” animals, such as emus, miniature
horses, pea fowl, geese, turkeys, sporting fowl, and donkeys.
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violation of Kentucky’s Consumer Protection Act.3
On August 14,
1998, Blitz filed its answer and denied all of the material
allegations in Cowan’s complaint.
Following the filing of Blitz’s answer, the case was
dormant until October 11, 1999, when the trial court entered a
notice to dismiss for lack of prosecution pursuant to CR4
77.02(2).
Thereafter, per Cowan’s request, the trial court
permitted the case to remain on the active docket.
However, no
further action was taken by Cowan to move the case forward.
On
August 2, 2000, the trial court entered an order stating that
the case would be dismissed on October 17, 2000, unless “good
cause” could be shown to keep the case on the docket.
On
October 5, 2000, Cowan filed a motion to set a date for trial.
The trial court granted Cowan’s motion and scheduled a bench
trial for November 16, 2000.
On November 3, 2000, Blitz filed a
motion objecting to the scheduled trial date.
No response was
filed by Cowan, and on November 21, 2000, the trial court
vacated its order scheduling a bench trial for November 16,
2000, “until either party moves to reset this action for trial
or until further order of [the court].”
Approximately seven months later, on June 18, 2001,
Blitz filed a motion for summary judgment.
3
See Kentucky Revised Statutes (KRS) 367.170.
4
Kentucky Rules of Civil Procedure.
-3-
In Blitz’s
memorandum in support of its motion for summary judgment, it
argued, inter alia, that Cowan “has not produced even a
scintilla of evidence” to support the allegations in his
complaint.
In addition, Blitz filed two documents signed by
Cowan, which indicated that he was satisfied with the building
after its completion.
Blitz also filed an affidavit from Doug
Bolin, Blitz’s construction superintendent for the Cowan
project, who stated (1) that the building materials were not
damaged; (2) that the building was constructed in a workmanlike
manner; (3) that Cowan seemed satisfied with the work upon
completion; and (4) that Cowan admitted to damaging a portion of
the building with his tractor and hay wagon.
On August 17, 2001, after Cowan did not file a
response to Blitz’s motion for summary judgment, the trial court
granted Blitz’s motion.
On August 28, 2001, Cowan filed a
motion to alter, amend or vacate the trial court’s order
granting Blitz’s motion for summary judgment.
Attached to this
motion was an affidavit from Cowan, which supported the claims
made in his complaint.
Blitz responded to Cowan’s motion, and argued that
summary judgment was proper because, among other things, Cowan
had failed to file a response to its motion for summary judgment
within the time period provided in the local rules.
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On October
25, 2001, the trial court entered an order denying Cowan’s
motion to alter, amend or vacate.5
This appeal followed.
Cowan argues that the trial court erred in denying his
motion to alter, amend or vacate the order granting summary
judgment.
Specifically, Cowan argues:
After the [s]ummary [j]udgment was
entered, [Cowan] filed a [m]otion to
[v]acate with an affidavit from [Cowan],
stating his position on the issues.
Apparently, this affidavit was ignored by
the [t]rial [c]ourt.
Thus, Cowan argues that his affidavit was filed in a timely
manner and should have been considered by the trial court in
ruling on Blitz’s motion for summary judgment.
We disagree.
Rule 13 of the Local Rules of the Fifth Judicial
Circuit6 reads in full as follows:
Local Rule 13 SUMMARY JUDGMENT
Motions for summary judgment shall not
be noticed for hearing, but shall be
accompanied by a memorandum of law
supporting the motion. Opposing memoranda
may be submitted within thirty (30) days
with fifteen (15) days allowed for reply,
after which the motion will stand submitted.
The Court will consider any party’s request
for oral argument or may request same on its
own [emphasis added].7
5
The trial court’s order denying Cowan’s motion to alter, amend or vacate
does not state the grounds upon which the motion was denied.
6
The Fifth Judicial Circuit is comprised of Crittenden, Union, and Webster
Counties. The Local Rules for the Fifth Judicial Circuit were approved by an
order of the Supreme Court of Kentucky on June 10, 1998.
7
See Rules of the Supreme Court (SCR) 1.040(3).
the chief judge of each judicial circuit shall:
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SCR 1.040(3) provides that
In the case sub judice, it is not disputed that Cowan failed to
file a response to Blitz’s motion for summary judgment within
the 30-day deadline set by the local rules.
Further, Cowan has
not argued that Local Rule 13 is invalid or that the rule was
not binding upon him.
Accordingly, the trial court was under no
obligation to consider Cowan’s supporting affidavits which were
submitted after the time period for responding to a motion for
summary judgment had expired.
We now turn to the issue of whether the trial court
erred in granting Blitz’s motion for summary judgment.
Summary
judgment is only proper “where the movant shows that the adverse
party could not prevail under any circumstances.”8
The trial
court must view the record “in a light most favorable to the
(a) Prepare with the assistance of appropriate
committees such proposed local rules as are
consistent with the Rules of Civil Procedure, Rules
of Criminal Procedure, and Rules of the Supreme
Court, and as are required to expedite and facilitate
the business of the court, including the
establishment of times for conducting regular
sessions of the court within the circuit or district;
submit such proposed rules for consideration by the
judges of the circuit or district and, upon tentative
approval by a majority of such judges, have the
proposed rules published and submitted to the local
bar and circuit court clerk(s) for consideration and
recommendations; and after a majority of the judges
have finally recommended the rules, submit copies to
the Chief Justice for review and final approval. No
local rules shall be of binding effect unless in
writing, approved by the Chief Justice, and filed
with the Supreme Court Clerk who shall compile such
rules and make them available for general
distribution.
8
Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476, 480
(1991) (citing Paintsville Hospital Co. v. Rose, Ky., 683 S.W.2d 255 (1985)).
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party opposing the motion for summary judgment and all doubts
are to be resolved in his favor.”9
However, “a party opposing a
properly supported summary judgment motion cannot defeat that
motion without presenting at least some affirmative evidence
demonstrating that there is a genuine issue of material fact
requiring trial.”10
This Court has previously stated that “[t]he
standard of review on appeal of a summary judgment is whether
the trial court correctly found 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.
There is no
requirement that the appellate court defer to the trial court
since factual findings are not at issue” [citations omitted].11
In the case at bar, we conclude that Blitz was entitled to
summary judgment on all of the allegations made in Cowan’s
complaint.
As we previously mentioned, Cowan made the following
claims in his complaint: (1) that the building was not
constructed in a workmanlike manner; (2) that the materials used
were not reasonably suited for the intended purposes; (3) that
Blitz failed to repair the defects under the warranty as
9
Steelvest, 807 S.W.2d at 480 (citing Dossett v. New York Mining &
Manufacturing Co., Ky., 451 S.W.2d 843 (1970)).
10
Hubble v. Johnson, Ky., 841 S.W.2d 169, 171 (1992)(citing Steelvest, supra
at 480).
11
Scifres v. Kraft, Ky.App., 916 S.W.2d 779, 781 (1996).
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promised; and (4) that Blitz’s conduct constituted a violation
of Kentucky’s Consumer Protection Act.
In support of its motion for summary judgment, Blitz
submitted a “Building Completion Certificate” and a customer
satisfaction survey, both of which were signed by Cowan.
In
these documents, Cowan stated that the construction was
completed in accordance with the purchase agreement, that the
roofing and siding had been inspected, and that the roof,
siding, doors, and roof trusses were completed in “good”
condition.
Doug Bolin, Blitz’s construction superintendent for
the Cowan project, also stated in his affidavit that the
building materials were not damaged and that the construction
was done in a workmanlike manner.
Further, in what appears to
be his own handwriting, Cowan stated on the customer
satisfaction survey that “I had about 10 people to come look at
[the building.]
They sure like it[.]”
This evidence proffered
on behalf of Blitz was not timely rebutted by Cowan.
Hence,
Cowan has failed to timely present any affirmative evidence
opposing Blitz’s properly supported motion for summary judgment
which would demonstrate a genuine issue of material fact.
Accordingly, we affirm the granting of summary judgment in favor
of Blitz on these issues of whether the building was constructed
in a workmanlike manner and whether the materials used were
suited for the intended purposes.
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Next, Bolin stated in his affidavit that after Cowan
complained of damage to the building, Bolin inspected the
building and opined that the damage was probably done by Cowan’s
livestock.
Further, Bolin stated that Cowan admitted to
damaging a portion of the building with his tractor and hay
wagon.
Once again, this evidence was not timely rebutted by
Cowan.
Hence, even if Blitz had at one time promised to repair
the alleged defects in the building, Bolin believed, based on
his inspection, that there were no defects for which Blitz would
be liable.
Accordingly, Blitz was entitled to summary judgment
on the issue of whether Blitz failed to make any repairs as
promised.
Finally, in Craig v. Keene,12 this Court held that
homeowners could not maintain a cause of action against a
homebuilder under the Consumer Protection Act for alleged
fraudulent conduct.
Similarly, the Consumer Protection Act does
not provide a cause of action for Cowan against Blitz as the
builder of his metal building.
Thus, since there are no genuine
issues of material fact, Blitz was entitled to judgment as a
matter of law on Cowan’s Consumer Protection Act claim.
Based on the foregoing, the order of the Crittenden
Circuit Court is affirmed.
12
Ky.App., 32 S.W.3d 90, 91 (2000)(stating that “we do not believe that the
Kentucky Consumer Protection Act applies to real estate transactions by an
individual homeowner”).
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Steve P. Robey
Providence, Kentucky
Alan C. Stout
Marion, Kentucky
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