CANTRELL (TALMADGE) VS. NATION FUNDING GROUPAnnotate this Case
RENDERED: DECEMBER 31, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM JOHNSON CIRCUIT COURT
HONORABLE JOHN DAVID PRESTON, JUDGE
ACTION NO. 03-CI-00486
NATION FUNDING GROUP
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BEFORE: CLAYTON, MOORE, AND STUMBO, JUDGES.
STUMBO, JUDGE: Talmadge Cantrell appeals from Findings of Fact,
Conclusions of Law and Judgment of the Johnson Circuit Court in an action filed
by Nation Funding Group alleging breach of contract. Cantrell, acting pro se,
apparently is contending that the judgment was not supported by substantial
evidence. He also claims that he was improperly denied the opportunity to file a
counterclaim. For the reasons stated below, we affirm the judgment on appeal.
On September 23, 2002, U.S. Buildings, LLC entered into a “Home
Improvement and Retail Installment Contract” with Cantrell. The contract
provided that U.S. Buildings would deliver to Cantrell a 35’ x 18’ x 50’ metal
building with hardware, which would be assembled by Cantrell. It also contained a
promissory note requiring Cantrell to pay to U.S. Buildings the sum of $158.35 per
month for 60 months, representing the purchase price of $7,132.85 plus $2,368.15
interest. The contract provided that U.S. Building’s rights under the contract were
assigned to Nation Funding Group, which occupied the same physical address in
On December 5, 2003, Nation Funding Group filed an action against
Talmadge and Norma Cantrell in Johnson Circuit Court alleging breach of contract
based on the Cantrells’ failure to make payments under the promissory note. It
was alleged that the Cantrells made two payments on the note, and that the second
payment was returned for non-sufficient funds.
Talmadge Cantrell filed an answer to the complaint, after which the
matter languished during a long period of dormancy. On April 12, 2007 - more
than three years after the filing of the complaint - the matter was scheduled for a
bench trial. About three weeks before trial, Cantrell unsuccessfully sought leave to
file a counterclaim.
The matter proceeded to a bench trial on July 25, 2007, and Cantrell
defended the action pro se. Testimonial and documentary evidence was tendered,
after which the court rendered its Findings of Fact, Conclusions of Law and
Judgment. The court found in relevant part that the Cantrells breached the contract
by failing to make payments under the promissory note. It rendered a judgment in
favor of Nation Funding Group in the amount of $11,322.01 plus interest. This
Cantrell now argues pro se that the trial court erred in rendering a
judgment in favor of Nation Funding. Though inartfully drafted, and while not
expressly so stating, Cantrell’s written argument might be construed as contending
that the findings of fact, conclusions of law and judgment were not based on
substantial evidence of record. Cantrell’s argument certainly focuses, however, on
the arguments which he unsuccessfully sought to raise in a counterclaim, to wit,
that the building he received was used rather than new and that it leaked badly
when it rained. In response, Nation Funding contends that the judgment is
supported by substantial evidence, and that the trial court properly denied the
motion to file a counterclaim.
We have closely examined the record and find no basis for reversing
the judgment on appeal. Evidence was adduced at trial which reasonably supports
the circuit court’s finding that Cantrell breached the contract by failing to make
payment as required by the promissory note. Specifically, the Vice-President of
Nation Funding, Leslie Marsh, testified that Cantrell made only two payments on
the note, and that the second payment was returned with the notation “NSF” for
“not sufficient funds.” He further testified that no additional payments were made,
The judgment was rendered against both Talmadge Cantrell and Norma Cantrell. Norma’s
signature does not appear on the contract, however, and she is not a party to this appeal.
and that the outstanding balance on the note was $11,322.01.2 Other defense
witnesses also testified, including Norma Cantrell, Ricky Dorton, and Ray Allen,
who gave an estimate regarding the cost of repair of the building.
Substantial evidence is evidence of substance and relevant
consequence, having the fitness to induce conviction in the minds of reasonable
people. Smyzer v. B.F. Goodrich Chemical Co., 474 S.W.2d 367, 369 (Ky. 1971).
Marsh’s testimony constitutes such evidence. Taken alone, it forms a sufficient
basis for supporting the circuit court’s finding that the parties entered into a
contract, that Cantrell failed to make payment on the note, and that the amount of
damages was $11,322.01. Findings of fact shall not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity of the trial court to
judge the credibility of the witnesses. CR 52.01. Accordingly, we find no error on
Cantrell also argues that the circuit court improperly denied his
motion to file a counterclaim. We also find no error on this issue. The trial court
may act within its discretion to deny a motion to file a belated counterclaim when
the failure to file it in a timely manner has resulted from neglect or the failure to
seek legal representation. Barnes v. Barnes, 415 S.W.2d 602 (Ky. 1966). In the
matter at bar, some 42 months elapsed between the filing of the complaint and the
date of the bench trial. During that period, Cantrell was represented by counsel of
record on two separate occasions, neither of whom sought to prosecute a
It merits noting that the building was actually delivered the year before the contract was signed.
The reason for this is not addressed by either the parties or the court.
counterclaim. Furthermore, and as Nation Funding properly notes, Cantrell was
allowed to elicit testimony at trial in support of the arguments he sought to
prosecute in the counterclaim, which included his assertion that the building he
received was not new and that it leaked. In the court’s Findings of Facts, it noted
that Cantrell also produced photographic evidence at trial, which in the court’s
opinion showed “some bent places in the building, but they appear to be more the
result of use of the building over time than construction flaws.” Given the totality
of the record, we find no error in the circuit court’s denial of Cantrell’s belated
motion to file a counterclaim.
For the foregoing reasons, we affirm the Findings of Fact,
Conclusions of Law and Judgment of the Johnson Circuit Court.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Talmadge Cantrell, pro se
Red Bush, Kentucky
Michael S. Endicott