TALL (IDY) VS. ALASKA AIRLINES/HORIZON AIR FEDERAL CREDIT UNION
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RENDERED: MARCH 11, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-002256-MR
IDY TALL
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MITCHELL PERRY, JUDGE
ACTION NO. 08-CI-009651
ALASKA AIRLINES/HORIZON AIR
FEDERAL CREDIT UNION
APPELLEE
OPINION
AFFIRMING
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BEFORE: LAMBERT AND MOORE, JUDGES; ISAAC,1 SENIOR JUDGE.
MOORE, JUDGE: Idy Tall appeals from an order of the Jefferson County Circuit
Court in which the trial court adopted the deputy Master Commissioner’s report
and granted the motion for summary judgment filed by Alaska Airline/ Horizon
Air Federal Credit Union. After a careful review of the record, we affirm because
Tall failed to preserve for appeal his claims of error following the Master
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Senior Judge Sheila R. Isaac, sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
Commissioner’s report and, alternatively, because the parties did not form a
binding settlement agreement. Furthermore, we decline to find Appellee in
violation of Jefferson County Local Rule 402 or to issue sanctions against
Appellant in this case.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant Idy Tall and Appellee Alaska Airlines/Horizon Air Federal
Credit Union entered into a credit agreement on May 10, 1999. Tall later defaulted
on his repayment of the loan. Pursuant to the default provisions of the original
agreement, the Credit Union brought suit against Tall, seeking to recover
$5,671.95, plus interest at 12.5% accruing thereon since February 2008, plus
attorneys fees and costs incurred in recovering the amount owed. Tall, pro se,
answered the Credit Union’s complaint by essentially denying that he owed any
debt to the Credit Union and claiming that he and the Credit Union’s attorney had
previously discussed a settlement whereby Tall would bring his account current.
However, Tall has offered no evidence of that agreement, and the only reference to
the Credit Union’s offer to settle for monthly payments is in a letter dated
December 16, 2008, wherein the Credit Union references a previous settlement
offer sent by a letter dated September 29, 2008.
Following Tall’s answer, the Credit Union propounded on Tall’s
requests for admissions. Request No. 5 stated: “There is a balance due and owing
pursuant to the [credit agreement] in the amount of $5,671.95, plus interest thereon
that is accumulating at the rate of 12.5% from February 2008 going forward.” Tall
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did not respond. Instead, there is some evidence of a telephone conversation
between Tall and the Credit Union’s attorney where Tall attempted to offer a lump
sum payment. In response, the Credit Union wrote the December 16, 2008 letter to
Tall, specifically rejecting his “recent lump sum settlement offer [as] it is far too
low.” This letter reiterated the Credit Union’s previous monthly payment
settlement proposal, which included amounts for interest and costs, and concluded
by stating: “This is the only settlement that I can offer. If it is acceptable, please
propose a monthly payment amount.”
The Credit Union therefore moved for summary judgment.
Meanwhile, Tall tendered a check for $5,671.95 to the Credit Union and
subsequently moved for summary judgment. The trial court referred the matter to
the Master Commissioner, who conducted a hearing. The Commissioner’s report
specifically found that Tall’s failure to respond to the Credit Union’s request for
admissions deemed the requests admitted. Thereafter, the Jefferson Circuit Court
adopted the Commissioner’s findings, and entered a final order granting the Credit
Union’s motion for summary judgment, finding that Tall had failed to raise any
issue of material fact, and ordering Tall to pay the Credit Union $590.83 in interest
accrued since February 2008, plus interest on that amount at 12.5% accruing
thereon until the judgment is paid; and $4,480.00 in attorney fees, plus costs.
Tall now appeals the trial court’s grant of summary judgment for the
Credit Union, claiming: 1) that Tall had a binding agreement with the Credit Union
whereby the lawsuit would settle if he brought his account current; and 2)
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essentially that the Credit Union took advantage of Tall’s pro se representation
during discovery, in violation of Jefferson County Local Rule 402.
II. STANDARD OF REVIEW
“The 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.”
Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). “The record must be
viewed in a light most favorable to the party opposing the motion for summary
judgment and all doubts are to be resolved in his favor.” Steelvest, Inc. v.
Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991). “Even though a trial
court may believe the party opposing the motion may not succeed at trial, it should
not render a summary judgment if there is any issue of material fact.” Id. Further,
“the movant must convince the court, by the evidence of record, of the
nonexistence of an issue of material fact.” Id. at 482.
III. ANALYSIS
A. TALL DID NOT PROPERLY PRESERVE THE ISSUES FOR APPEAL
WHEN HE FAILED TO ENTER WRITTEN OBJECTIONS TO THE MASTER
COMMISSIONER’S REPORT.
The Credit Union argues that Tall did not properly raise written
objections to the Master Commissioner’s Report, and therefore that Tall’s
objections were not properly preserved for appeal. We agree.
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The Master Commissioner specifically determined that Tall’s failure
to respond to the Credit Union’s request for admissions deemed his responses
admitted pursuant to Kentucky Rules of Civil Procedure (CR) 36.01(2). “For that
reason,” the Commissioner found that she “[could] not recommend in favor of Mr.
Tall’s motion to dismiss and instead recommend[ed] in favor of [the Credit Union]
. . . . ” The report of the Master Commissioner also requested the Credit Union to
submit a supporting affidavit regarding attorney fees. Following that report, the
Credit Union submitted written exceptions regarding only the attorney fees issue.
The Master Commissioner then entered a supplemental report followed by an
amended Master Commissioner report, and the Credit Union again responded with
exceptions, all of which also solely dealt with the issue of the Credit Union’s
attorney fees request. However, at no point did Tall enter any objections to the
Master Commissioner’s findings. Therefore, under CR 53.05(2), Tall’s arguments
are not properly before this court.
CR 53.05(2) provides:
Within 10 days after being served with notice of the
filing of [the commissioner’s] report any party may serve
written objections thereto upon the other parties.
Application to the court for action upon the report and
upon objections thereto shall be by motion and upon
notice as prescribed in CR 6.04.
Despite the permissive language of CR 53.05(2), that parties may
enter written objections to the commissioner’s report, the Kentucky Supreme Court
has held that such objections are necessary if a party intends to preserve claims of
error if and when the trial court adopts the report. See Eiland v. Ferrell, 937
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S.W.2d 713 (Ky. 1997). If we did not require objections to the Commissioner’s
report to be entered following the procedures outlined in CR 53.05(2), then the
undesirable result would be that “appeals would be taken from trial court
judgments adopting commissioner’s reports without the trial court ever having
been apprised of any disagreement with the report.” Id. at 716. In Eiland, the
Court went on to explain that “[n]ot only would this amount to the blind-siding of
trial courts, it would also result in unnecessary appeals, confusion in appellate
courts, needless reversals, and . . . would invite all the mischief associated with
appellate review of unpreserved error.” Id.
Here, Tall did not submit any objections or exceptions following the
hearing and the Commissioner’s reports. Therefore Tall’s claims on appeal are not
properly preserved, since Tall had ample opportunity to defend, to object, or
simply to respond to the Commissioner’s report, but failed to do so before raising
the issues on appeal.
B. ALTERNATIVELY, THE PARTIES DID NOT FORM A BINDING
CONTRACT TO SETTLE THE CASE.
Although Tall’s failure to object to the Commissioner’s report is
dispositive, we will briefly address the merits of Tall’s claims. Tall essentially
argues that he had a contract with the Credit Union, entered into on the Credit
Union’s behalf by its attorney, whereby Tall’s payment of a lump sum amount
would bring his account current and would settle the Credit Union’s case against
him. Tall claims this would absolve him from liability for the amounts of interest
accrued on his account and any attorney fees and costs.
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Settlement agreements are a type of contract and therefore are
governed by contract law. Frear v. P.T.A. Indus., 103 S.W.3d 99, 105 (Ky. 2003).
As a long-standing rule, formation of a settlement agreement, like any contract,
requires a meeting of the minds between the parties. Barr v. Gilmore, 265 S.W. 6,
204 Ky. 582, 588 (1924). The difference between a settlement agreement and
accord and satisfaction is that an unexecuted accord and satisfaction does not bar
an original cause of action, whereas a settlement agreement does. Id. Moreover, a
settlement agreement, as a contract, requires an offer of compromise and an
acceptance of that offer. Id.
Here, the only evidence of an offer made by the Credit Union is in a
letter from December 16, 2008, which purports to reiterate an offer made in
September 2008. According to the December 16th letter, the Credit Union’s
September settlement offer would provide for monthly payments toward the entire
balance due, and upon default, acceleration of the entire balance. Even assuming
such an offer was made, there is no evidence (a) that Tall accepted the September
offer, or (b) that acceptance of that offer involved Tall’s paying a lump sum in
satisfaction of his debt. The December 16th letter in fact rejected Tall’s offer to
settle for a lump sum payment, since it was too low because it did not take into
account interest and costs. That letter also marked the end of the parties’
correspondence regarding any sort of settlement agreement.
The letter seems to contain some reference to the Credit Union’s prior
settlement offer, inviting Tall to accept that offer by “propos[ing] a monthly
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payment amount.” Rather than accepting the offer, Tall sent a check covering the
principal amount of his debt to the Credit Union. The payment of the lump sum
amount, which did not include interest owed, costs, or fees, without any indication
otherwise, was not an acceptance of the Credit Union’s offer. Consequently, there
was no “meeting of the minds” to that effect. Therefore, we reject Tall’s argument
that a binding settlement agreement existed.
C. APPELLEE DID NOT VIOLATE LOCAL RULE 402.
Tall next argues that the Credit Union’s counsel violated Local Rule
402 by taking advantage of Tall’s ignorance of the law when the Credit Union
propounded requests for admissions on Tall’s acting pro se. Jefferson County’s
Local Rule 402 provides:
Counsel in civil and criminal cases shall make a good
faith effort to resolve disputes among themselves which
arise in the course of discovery. No motions pertaining
to discovery shall be made to the Court without a
certificate of counsel that she has conferred with
opposing counsel, that they are unable to reconcile their
differences and that she has otherwise exhausted all
extrajudicial means in an effort to reconcile her
differences with opposing counsel. To the extent that
extrajudicial means have not disposed of the matter, a
party may file an appropriate order under CR 37. The
motion shall be accompanied by a supporting
memorandum with citation to legal authority, if any. The
motion and memorandum shall also be accompanied by a
copy of the discovery requests in dispute. Response to
the motion shall be filed pursuant to CR 37.
We do not believe that Rule 402 applies in the context of a request for admissions,
and it certainly does not impose a duty upon counsel to compel discovery from an
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opposing party. Because unanswered admission requests are deemed admitted
pursuant to CR 36.01(2), there is no foreseeable reason for a party to seek to
compel such admissions. Accordingly, Local Rule 402’s permissive language does
not impose a duty on a party to pursue, or even to follow up on, its request for
admissions. Tall’s argument faintly suggests that the Credit Union’s counsel
exercised bad faith by failing to remind Tall, as a pro se defendant, of the danger
of CR 36.01(2)’s deemer clause. Kentucky has never placed such a duty on
opposing counsel to a pro se litigant. Instead, pro se parties are required, like any
other party, to know and follow the rules of civil procedure. Louisville & Jefferson
County Metro. Sewer Dist. v. Bischoff, 248 S.W.3d 533, 537 (Ky. 2005).
Therefore, Tall’s argument lacks merit.
D. RULE 11 SANCTIONS ARE IMPROPER.
Finally, we disagree with the Credit Union’s argument that Tall’s
appeal is frivolous and that it is entitled to fees. Having reviewed the arguments of
counsel, Tall’s appeal, although unsuccessful, was not wholly unreasonable.
Specifically, we note that Tall’s argument that he believed that the matter was
resolved upon his lump-sum payment, while incorrect, is not so completely lacking
in merit as to justify the imposition of sanctions or to deem this appeal frivolous.
Accordingly, the judgment of the Jefferson County Circuit Court is
affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Aubrey Williams
Louisville, Kentucky
John Tarter
Louisville, Kentucky
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