CAMPTON QUICK STOP, INC. VS. JACKSON WHOLESALE COMPANY, INC.
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RENDERED: AUGUST 15, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-002328-MR
CAMPTON QUICK STOP, INC.
v.
APPELLANT
APPEAL FROM WOLFE CIRCUIT COURT
HONORABLE FRANK ALLEN FLETCHER, JUDGE
ACTION NO. 07-CI-00016
JACKSON WHOLESALE COMPANY, INC.
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE: CAPERTON, KELLER, AND NICKELL, JUDGES.
CAPERTON, JUDGE: Campton Quick Stop, Inc. appeals the grant of summary
judgment in favor of Jackson Wholesale Co., Inc. in the Wolfe Circuit Court. On
appeal Campton argues that the court erred by sua sponte ordering summary
judgment without the required ten (10) day notice provided by CR 56.03. We
agree with Campton and therefore must vacate and remand back to the trial court.
On November 8, 2007, both parties attended a motion to set the matter
for trial. There was no written motion for summary judgment filed by either side
before the court. When Jackson requested a trial date the court stated that it would
grant summary judgment. Both parties objected but the trial court insisted upon
granting summary judgment and entered an order the next day. It is from this
order that Campton appeals.
CR 56.03 states that the summary judgment “motion shall be served at
least 10 days before the time fixed for the hearing.” Before a trial court may rule
on a summary judgment motion, the procedural requirements must be strictly
complied with.1 See McAtee v. Wigland of Louisville, Inc., 457 S.W.2d 265
(Ky.1970) and Rexing v. Doug Evans Auto Sales, Inc., 703 S.W.2d 491
(Ky.App.1986). Before a trial court can sua sponte enter summary judgment it
must comply with the ten day notice requirement. Hay v. Hayes, 564 S.W.2d 224
(Ky.App. 1978). As the court failed to comply with the notice requirement and
such failure is dispositive of this appeal, we will not address whether any genuine
issues of material fact exist which would preclude entry of summary judgment on
remand.
Accordingly, we vacate and remand back to the trial court for further
proceedings.
1
We do note that it is possible to waive this requirement where the nonmoving party fails to
object, did not ask for a continuance, and cannot show prejudice from the procedural defect. See
Equitable Coal Sales, Inc. v. Duncan Machinery Movers, Inc., 649 S.W. 2d 415 (Ky.App.1983).
This is not the case here, during the trial courts sua sponte order of summary judgment both
parties objected.
-2-
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Melissa C. Howard
Tammy E. Howard
Jackson, Kentucky
Brendon D. Miller
Jackson, Kentucky
-3-
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