DISCOVER BANK, ISSUER OF THE DISCOVER CARD, BY ITS SERVICING AGENT, DISCOVER FINANCIAL SERVICES, INC. v. ANDREW WILSON
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RENDERED:
SEPTEMBER 8, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001352-MR
DISCOVER BANK, ISSUER OF THE
DISCOVER CARD, BY ITS SERVICING
AGENT, DISCOVER FINANCIAL SERVICES, INC.
APPELLANT
APPEAL FROM GRAVES CIRCUIT COURT
HONORABLE JOHN T. DAUGHADAY, JUDGE
ACTION NO. 03-CI-00553
v.
ANDREW WILSON
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
JOHNSON AND VANMETER, JUDGES; HUDDLESTON,1 SENIOR JUDGE.
JOHNSON, JUDGE:
Discover Bank has appealed from the June 17,
2004, order of the Graves Circuit Court which dismissed, with
prejudice, its claim under a credit card agreement against
Andrew Wilson.
Having concluded that the circuit court
improperly dismissed the action, we vacate and remand for
further proceedings.
1
Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
On November 3, 2003, Discover Bank, by its counsel,
Ernest V. Thomas, III, whose address was listed in Cincinnati,
Ohio, filed its complaint against Wilson alleging that he had
defaulted on a credit card agreement with Discover Bank.
Wilson
responded on December 16, 2003, by filing a motion, with an
affidavit in support, to dismiss the complaint for lack of
subject-matter jurisdiction.
On December 29, 2003, Vincent Thomas, an attorney
located in Newport, Kentucky, filed a notice of appearance on
behalf of Discover Bank stating that he was “now appear[ing] as
Trial Attorney for Plaintiff.”
The notice of appearance was
served on Wilson and provided Vincent Thomas’s Kentucky address.
Vincent Thomas also filed a response to Wilson’s motion to
dismiss.
On March 1, 2004, Vincent Thomas, on behalf of
Discover Bank, filed a motion to compel Wilson to answer the
interrogatories and requests for production as propounded on him
by Discover Bank.
Vincent Thomas also filed a motion for
summary judgment.
Wilson responded on April 8, 2004, by filing
an objection to the motion to compel and an objection to
Discover Bank’s interrogatories and requests for production.
On May 12, 2004, Vincent Thomas filed a second motion
to compel answers to interrogatories and requests for production
and a second motion for summary judgment.
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Wilson responded by
requesting a hearing on his motion to dismiss.2
On June 17,
2004, the circuit court entered an order granting Wilson’s
motion to dismiss, stating as follows:
[Wilson] having filed a Motion to
Dismiss on grounds of lack of subject matter
jurisdiction, and this motion having been
noticed for May 24, 2004, at 8:30 a.m., and
passed by the Court and again noticed by
[Wilson] for hearing on June 14, 2004, at
8:30 a.m., with notice to [Discover Bank’s]
attorney of record, Thomas & Thomas, 2323
Park Avenue, Cincinnati, OH 45206, and the
Court having called said case, and [Wilson]
being present and [Discover Bank] having
failed to appear . . . NOW GRANTS [Wilson’s]
Motion to Dismiss [Discover Bank’s] claim
with prejudice and with costs assessed
against [Discover Bank].
This appeal followed.3
A motion to dismiss should only be granted if “it
appears the pleading party would not be entitled to relief under
any set of facts which could be proved in support of his claim”
[citation omitted].4
When ruling on the motion, the allegations
in the pleadings “should be liberally construed in a light most
favorable to the plaintiff and all allegations taken in the
2
According to the notice on Vincent Thomas’s motion to compel and the notice
on Wilson’s request for hearing, both were noticed to be heard by the circuit
court on May 24, 2004. However, no hearing on either motion was held on May
24, 2004.
3
We note that Ernest Thomas’s name is listed on the appellant’s brief with
Vincent Thomas, and both are listed with the same address in Newport,
Kentucky.
4
Pari-Mutuel Clerks’ Union of Kentucky, Local 541, SEIU, AFL-CIO v. Kentucky
Jockey Club, 551 S.W.2d 801, 803 (Ky. 1977).
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complaint to be true” [citation omitted].5
In making this
decision, the trial court is not required to make any factual
findings.6
Therefore, “the question is purely a matter of
law[,]”7 and the circuit court’s decision will be reviewed de
novo on appeal.8
While Discover Bank argues two issues on appeal, we
are vacating and remanding on the procedural issue only because
of the circuit court’s premature dismissal of the case.
We do
not reach the merits of Discover Bank’s argument regarding
Wilson’s alleged defense of lack of subject-matter jurisdiction.
Discover Bank claims that because Vincent Thomas had
filed a notice of appearance listing him as attorney-of-record
and listing his Kentucky address, Wilson was required to give
him notice of filing of all pleadings.
We agree.
CR 5.02 provides the method of giving legal notice and
provides that service, when required, shall be made to the
attorney if a party is represented by counsel.
“Service upon
the attorney or upon a party shall be made by delivering a copy
to him or by mailing it to him at his last known address[.]”9
5
Gall v. Scroggy, 725 S.W.2d 867, 868 (Ky.App. 1987).
6
James v. Wilson, 95 S.W.3d 875, 884 (Ky.App. 2002).
7
Id.
8
Revenue Cabinet v. Hubbard, 37 S.W.3d 717, 719 (Ky. 2000).
9
CR 5.02.
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In this case, Wilson did not err in sending notice of
the hearing on the motion to dismiss to Ernest Thomas at the
Cincinnati address because he had not ever withdrawn from the
case.
However, because Vincent Thomas had filed his appearance
as trial counsel, and had been the attorney primarily handling
the filing of documents on behalf of Discover Bank, Wilson was
also required to send notice of the hearing to him.
Because
Wilson failed to provide adequate notice of the hearing, the
trial court erred in dismissing the case simply because counsel
did not appear.
Therefore, we vacate the order of the Graves Circuit
Court dismissing the case with prejudice, and remand this matter
for further proceedings consistent with this Opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Ernest V. Thomas, III
Vincent E. Thomas
Newport, Kentucky
No brief filed.
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