SHERMAN MOBILE HOME PARK, LLC; AND GAILEN W. BRIDGES, JR. v. GREENPOINT CREDIT, LLC; AMANDA J. WHALEN; AND SEAN N. DEARING
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AUGUST 26, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-002146-MR
SHERMAN MOBILE HOME PARK, LLC; AND
GAILEN W. BRIDGES, JR.
APPELLANTS
APPEAL FROM GRANT CIRCUIT COURT
HONORABLE STEPHEN L. BATES, JUDGE
ACTION NO. 01-CI-00276
v.
GREENPOINT CREDIT, LLC;
AMANDA J. WHALEN; AND
SEAN N. DEARING
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, MINTON, AND TAYLOR, JUDGES.
TAYLOR, JUDGE:
Sherman Mobile Home Park, LLC (Sherman Park) and
Gailen W. Bridges, Jr. (Bridges) appeal from a Judgment and
Order of Sale entered August 16, 2002, as amended on September
20, 2002, by order of the Grant Circuit Court. 1
We affirm.
GreenPoint Credit, LLC (GreenPoint) financed the
purchase of a mobile home sold to Amanda J. Whalen (Whalen) and
Sean N. Dearing (Dearing).
1
GreenPoint retained a purchase money
Gailen W. Bridges, Jr. is an attorney and is proceeding pro se.
also representing Sherman Mobile Home Park, LLC.
Bridges is
security interest against the mobile home and perfected the lien
by notation on the title certificate as required by Kentucky
Revised Statutes 186A.190(1).
Whalen and Dearing subsequently
defaulted on the loan to GreenPoint.
The mobile home was
located on a lot in Sherman Park and Bridges is the sole
shareholder of Sherman Park.
Whalen and Dearing had also fallen
behind on the lot rental payments to Sherman Park.
Bridges
informed GreenPoint that he would not allow the mobile home to
be moved from Sherman Park until the unpaid rent was satisfied.
On August 28, 2001, GreenPoint filed a complaint
against Whalen, Dearing, and Bridges in the Grant Circuit Court.
The complaint sought a personal judgment against Whalen and
Dearing, and to enforce GreenPoint’s lien including the
repossession of the mobile home.
As against Bridges, the
complaint requested “access to his property for the limited
purpose of removing the collateral.”
After Bridges was served
with the complaint, he informed GreenPoint that he did not
personally own Sherman Park; rather, it was a limited liability
company.
GreenPoint then attempted to dismiss its complaint as
to Bridges; Bridges, however, objected and thus remained a
party.
On August 31, 2001, GreenPoint filed an amended
complaint, naming Sherman Park as an additional defendant.
amended complaint was served upon Bridges as Sherman Park’s
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The
agent for service of process.
However, as Bridges had
previously filed an answer, GreenPoint was required to seek
leave to amend its complaint. Ky. R. Civ. P. (CR) 15.01.
On
October 24, 2001, the circuit court granted GreenPoint’s motion
for leave and the amended complaint was deemed filed on that
date.
Bridges, as Sherman Park’s agent, was not formally
served with the amended complaint until May 2, 2002.
The
amended complaint sought the same relief against Whalen and
Dearing.
As to Sherman Park, it requested access to the
premises “for the limited purpose of removing the collateral.”
Bridges was not named as a party in the amended complaint, nor
was any relief requested against him.
On May 17, 2002, GreenPoint moved for summary
judgment.
CR 56.
On August 16, 2002, a judgment and order of
sale was entered in favor of GreenPoint.
Bridges and Sherman
Park subsequently filed a motion to alter, amend or vacate. CR
59.05.
An amended judgment and order of sale was entered
September 20, 2002.
The amended judgment directed that after
satisfaction of GreenPoint’s judgment, any remaining proceeds
would go to satisfy Sherman Park’s claim for back rents owed.
This appeal follows.
Bridges and Sherman Park (hereinafter referred to
collectively as “appellants”) contend GreenPoint’s motion for
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summary judgment was prematurely filed.
Specifically,
appellants contend the motion for summary judgment was barred
pursuant to CR 56.01, which provides that such motion may not be
filed until “after the expiration of 20 days from the
commencement of the action.”
Appellants argue the action did
not commence until Sherman Park was served with the amended
complaint on May 2, 2002.
As such, appellants assert the motion
for summary judgment filed on May 17, 2002, was premature as the
twenty day period had not yet passed.
We reject this argument for two reasons. First, if a
motion for summary judgment is made before the expiration of the
twenty day period and the adverse party fails to object, any
objection to its prematurity is waived.
7 Kurt A. Philipps,
Jr., Kentucky Practice, CR 56.01, cmt. 3, p. 315 (5th ed. 1995).
Appellants did not object to the alleged prematurity of the
motion before the circuit court; thus, we are of the opinion
appellants waived any such objection.
Second, Bridges was both
the agent for service of process and counsel for Sherman Park
who was served with the original complaint filed August 28,
2001.
Bridges does not dispute that he received a copy of the
amended complaint at the time of filing on August 31, 2001.
CR
56.01 does not require that a defendant be served with summons
before a plaintiff can file a motion for summary judgment.
The purpose of the rule is to allow a party ample time to
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Id.
conduct discovery, which clearly occurred in this case.
Under
these circumstances, for the appellants to argue the prematurity
of the motion for summary judgment filed nine months after the
amended complaint was filed is disingenuous at best.
Appellants next contend summary judgment was
improperly granted as issues of material fact existed.
Specifically, appellants contend that issues of fact existed
“regarding what effect the lease ha[d] on the rights of the
parties.”
Appellants argue summary judgment was improper
because Sherman Park raised issues of material fact regarding
whether the mobile home could be removed before the lot rent was
paid.
We are of the opinion that no genuine issues of
material fact remained.
The action was initiated by GreenPoint
to enforce a lien after Whalen and Dearing defaulted on the
loan.
The issue before the circuit court was whether
GreenPoint’s lien could be enforced and what priority the lien
had.
The circuit court determined the priority and fully
adjudicated the rights of appellants.
Appellants also contend the “judgment is fatally
defective because it does not dispose of the interest” of
Dearing.
Specifically, appellants contend that although
GreenPoint named Dearing as a defendant and his name appeared on
the title, the judgment did not dispose of Dearing’s interest.
-5-
Appellants argue any purported sale of the mobile home would be
defective and a purchaser would not receive clear title.
Appellants also argue the “[j]udgment does not protect Sherman’s
lien rights against Dearing.”
Appellants cited no authority to this Court in support
of its contention that the judgment is defective.
Furthermore,
appellants failed to specify how the alleged defect would affect
Sherman’s lien claim.
As such, we must summarily reject these
allegations of error.
Appellants next contend the “order improperly gave 20
days free rent to any stranger with no justification or basis.”
Appellants specifically contend the circuit court directed
GreenPoint to prepare the judgment and order of sale, but did
not direct GreenPoint to include language “giving any
prospective purchaser 20 days free lot rent.”
The amended
judgment and order of sale entered on September 20, 2002, states
that “[w]hen the purchase price is paid in full, the purchaser
will have twenty (20) days to remove the mobile home from
Sherman Mobile Home Park.”
We are of the opinion the circuit
court did not abuse its discretion when it gave the purchaser
twenty days to remove the mobile home.
The order clearly and
properly adjudicates the lien rights of the parties to the
collateral at issue before the court.
The fact that a purchaser
of the collateral was given twenty days to remove the mobile
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home from Sherman Park after the sale does not appear in any way
to be unreasonable to this Court.
Appellants’ final argument is that “GreenPoint drafted
the order to cast Bridges in a bad light in anticipation of a
malicious prosecution action.”
Specifically, appellants assert
that when GreenPoint drafted the order, it was “clearly
intending to build defenses against the malicious prosecution
claim” by including language to imply Bridges had previously
asserted an interest in the mobile home.
We are of the opinion
this argument is also totally without merit.
Whether Bridges
pursues a malicious prosecution claim against GreenPoint is not
properly before this Court.
Furthermore, we have closely
reviewed the amended judgment and order of sale and do not
believe it casts Bridges in a “bad light.”
If there was any
confusion regarding Bridges’ status in the case, it appears that
he created it.
Similarly, we are puzzled why Bridges objected
to his dismissal early on in the case and now argues he was
somehow placed in a “bad light” via a court order signed by the
circuit judge.
Lastly, GreenPoint asserts that this appeal is
frivolous and that appellants should be assessed costs and
attorney’s fees incurred by GreenPoint in this appeal under CR
73.02(4).
CR 73.02(4) allows this Court to award single or
double costs for a frivolous appeal.
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Additionally, attorney’s
fees may be awarded as damages upon a finding that an appeal is
frivolous.
Lake Village Water Assoc. Inc. v. Sorrell, 815
S.W.2d 418 (Ky.App. 1991).
An appeal is frivolous if it is so
totally lacking in merit that no reasonable attorney would
assert such an argument and thus, bad faith can be inferred.
Leasor v. Redmon, 734 S.W.2d 462 (Ky. 1987).
While we concede
that some of appellants’ arguments approach the “dark side,” we
cannot find upon a thorough review of the record as a whole
sufficient facts to deem the appeal as frivolous.
The
subjective belief of an attorney is not the determining factor
in whether an appeal is frivolous.
A court must examine the
entire record objectively to determine whether an appeal is
totally lacking in merit.
On the record as a whole, we cannot
infer bad faith in this appeal and thus, decline to award
GreenPoint sanctions under CR 73.02(4).
For the foregoing reasons, we affirm the decision of
the Grant Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANTS:
BRIEF FOR APPELLEE:
Gailen W. Bridges, Pro Se
Covington, Kentucky
Robert C. Chaudoin
Gilbert L. Busby
HARLIN PARKER
Bowling Green, Kentucky
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