Opinion
NO. 2017-CA-000869-MR
06-01-2018
CHARLSIE M. BANKS APPELLANT v. CHRISTIAN APPALACHIAN PROJECT, INC.; ANITA SEALS; AND MICHAEL LOIACONO APPELLEES
BRIEF FOR APPELLANT: Anthony J. Bucher Covington, Kentucky BRIEF FOR APPELLEES: Haley Trogdlen McCauley Travers B. Manley Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM ROCKCASTLE CIRCUIT COURT
HONORABLE DAVID A. TAPP, JUDGE
ACTION NO. 15-CI-00092 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; SMALLWOOD AND TAYLOR, JUDGES. SMALLWOOD, JUDGE: Charlsie M. Banks appeals from an Order of the Rockcastle Circuit Court granting Summary Judgment in favor of Christian Appalachian Project, Inc., Anita Seals and Michael Loiacono (collectively "Appellees"). Banks argues that the trial court abused its discretion in denying her request for an extension of time to respond to Appellees' Motion for Summary Judgment. For the reasons stated below, we AFFIRM the Order on appeal.
On March 7, 2014, Banks was dismissed from her employment with Christian Appalachian Project, Inc. The dismissal followed more than a year of alleged performance issues, poor evaluations and a failure to complete a development plan.
On May 8, 2015, Banks filed a Complaint in Rockcastle Circuit Court asserting claims of unlawful harassment, retaliation, race and religious discrimination, workers' compensation retaliation and intentional infliction of emotional distress. Banks's counsel withdrew from representation on September 25, 2015. She retained new counsel the following month, and that counsel withdrew the next month. Banks proceeded without counsel for the next 16 months.
Banks states that she is Caucasian, that her husband is African-American, her children bi-racial and one adopted son is African-American.
On February 14, 2017, and while Banks was still proceeding pro se, Appellees filed a Motion for Summary Judgment. The Certificate of Service states that the motion was mailed to Banks on February 14, 2017. Banks would later state by way of affidavit that she received the notice between 7:00 p.m. and 8:00 p.m. on February 17, 2017.
The motion was noticed to be heard at 9:00 a.m. on February 24, 2017. Banks, still proceeding without counsel, did not file a Memorandum in Opposition to the Motion for Summary Judgment. She then appeared pro se at the hearing and asked for an extension of time. The court denied the request and heard the Appellees' argument in favor of Summary Judgment.
On March 3, 2017, Banks's present counsel filed an entry of appearance. On March 6, 2017, the court rendered an order granting Appellees' Motion for Summary Judgment. In support of the Order, the court noted that Banks did not file any response to the Motion for Summary Judgment, and did not tender any evidence or affidavits at the hearing in opposition to the motion. The court also noted that Banks failed to comply with various pretrial deadlines, including her failure to file witness and exhibit lists as the matter proceeded toward a trial date. The court denied Banks's subsequent Motion to Alter, Amend or Vacate the Summary Judgment, and this appeal followed.
Banks, through counsel, first argues that the Rockcastle Circuit Court erred in proceeding with the hearing on Appellees' Motion for Summary Judgment when the hearing was conducted less than 10 full days after it was served. She directs our attention to Kentucky Rules of Civil Procedure (CR) 56.03, which provides that a Motion for Summary Judgment "shall be served at least 10 days before the time fixed for hearing." Citing Rexing v. Doug Evans Auto Sales, Inc., 703 S.W.2d 491, 493 (Ky. App. 1986), Banks argues that a "day" for purposes of CR 56.03 means a full 24-hour period. The hearing at issue was noticed for February 24, 2017, at 9:00 a.m. As such, Banks argues that because the notice was mailed by Appellees at an unknown time on February 14, 2017, and as she did not receive the notice until approximately 7:00 p.m. - 8:00 p.m. on February 17, 2017, the notice failed to comply with the 10-day requirement set out in CR 56.03.
CR 5.02(1) states in relevant part that,
[S]ervice upon . . . a party shall be made by . . . mailing it to the . . . party at the last known address of such person; or, if no address is known, by leaving it with the clerk of the court. Service is complete upon mailing unless the serving party learns or has reason to know that it did not reach the person to be served.(Emphasis added). Under the express language of CR 5.02(1), then, service is complete upon mailing. The Certificate of Service reveals that this occurred on February 14, 2014, and the parties so stipulate. A panel of this Court has held that, "[i]n our opinion, a 'day' for purposes of CR 56.03 means a full twenty-four hour period." Rexing, 703 S.W.2d at 493.
A trial court's rulings are presumed to be correct, and the burden rests with the appellant to overcome this presumption. Stuckert v. Keller, 430 S.W.2d 773, 777 (Ky. 1968). The dispositive question for our consideration, then, is whether Banks has now met the burden of demonstrating that the circuit court erred in finding the service to be proper. We must answer this question in the negative. Banks acknowledges that "the Motion was mailed to Ms. Banks at an unknown time on February 14, 2017." This acknowledgement falls short of demonstrating that service was made less than 10 full days prior to the hearing. We know from the record that the notice was mailed, and thus that service was made, on February 14, 2017. As the burden rests with Banks to demonstrate that the service was not timely, and as she has failed to meet this burden, we find no error on this issue.
Written argument at page 8. --------
In a closely related argument, Banks argues that the trial court abused its discretion when it denied her request for an extension of time to respond to Appellees' Motion for Summary Judgment. In support of this argument, she cites Perkins v. Hausladen, 828 S.W.2d 652, 656 (Ky. 1992) (citation omitted), wherein the Court recognized that requests for extensions of time to comply with the 10-day rule "are usually freely granted, and it may be an abuse of discretion for the trial court to refuse to grant reasonable extensions." Noting that she was without counsel when she received the motion, Banks asserts that the failure to grant an extension constitutes an abuse of discretion requiring a reversal of the Summary Judgment on appeal.
As the parties are well aware, a trial court has broad discretion in controlling its docket and considering requests for extensions of time. Smith v. Commonwealth, 481 S.W.3d 510, 514 (Ky. App. 2016). Such a request will be set aside only if the court abused its discretion by issuing a decision that was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Having closely examined the record and the law, we cannot conclude that the Rockcastle Circuit Court's denial of Banks's motion to extend her response time was arbitrary, unreasonable, unfair or unsupported by sound legal principles. As the Appellees note, Banks had been proceeding pro se for well more than one year prior to the filing of the Motion for Summary Judgment. Her decision not to retain her third counsel appears to have been volitional, as evinced by the appearance of new counsel immediately after the hearing in question. Appellees maintain that the trial court had given Banks great leeway over the course of this multi-year litigation, including granting earlier requests for extensions of time. But the court eventually made it clear that the action needed to move toward fruition, and that deadlines imposed by the court would be enforced absent good reason.
More to the point, because the granting of extensions of time falls within the court's discretionary authority, and as we do not find any of the English factors to be present, we have no basis for concluding that the circuit court's denial of her request for more time constituted an abuse of discretion. Banks does not assert nor does the record demonstrate that circumstances beyond her control prevented her from retaining counsel between November 2015, and March 3, 2017. Banks would have a compelling argument if counsel abandoned her at a crucial time in the proceedings, or could not adequately represent her due to illness or other circumstances beyond Banks's control. Such is not the case, however, and Banks's decision to proceed without counsel for 16 months was volitional. Given the foregoing, we find no abuse of discretion in the trial court's denial of Banks's last-minute request for additional time to file a responsive pleading to Appellees' Motion for Summary Judgment.
Finally, Banks argues that the circuit court improperly rendered Summary Judgment in favor of the Appellees. She maintains that the court erred in automatically granting Appellees' Motion for Summary Judgment merely because she filed no responsive pleading and presented no oral argument at the hearing. Banks contends that genuine issues of material fact exist which are sufficient to overcome Appellees' Motion for Summary Judgment, and she directs our attention to evidence which she contends demonstrates a hostile work environment and retaliatory discharge. She seeks reversal and remand of the Summary Judgment on appeal.
In support of her claim that genuine issues of material fact remain for adjudication, Banks now raises arguments which were never presented to the circuit court. It is axiomatic, however, that a party on appeal may only raise issues that were fully presented to the trial court, and may not forward new legal grounds on appeal to challenge those errors. Henderson v. Commonwealth, 438 S.W.3d 335, 343 (Ky. 2014). Banks acknowledges having presented no written or oral argument in opposition to Appellees' Motion for Summary Judgment. Her subsequent Memorandum in Support of Plaintiff's Motion to Alter, Amend or Vacate Judgment asserted that she was entitled to additional time to file a responsive pleading, but did not allege or otherwise argue that Summary Judgment was improperly rendered nor that genuine issues of material fact remain for adjudication.
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56.03. "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 Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary judgment should be granted only if it appears impossible that the nonmoving party will be able to produce evidence at trial warranting a judgment in his favor. Id. "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. Finally, "[t]he 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).
When viewing the record in a light most favorable to Banks and resolving all doubts in her favor, we cannot conclude that the Rockcastle Circuit Court erred in rendering Summary Judgment in favor of the Appellees. Banks did not present any written or oral argument in response to the Motion for Summary Judgment, and her subsequent Motion to Alter, Amend or Vacate did not allege nor seek to demonstrate that the entry of Summary Judgment was improper. Further, the Order granting Appellees' Motion for Summary Judgment is tantamount to a dismissal for failure to prosecute, as the court also expressly noted that Banks not only failed to respond to the Motion for Summary Judgment, but also failed to file witness and exhibit lists as required by the court's scheduling orders. Given the foregoing, we cannot conclude that the Rockcastle Circuit Court abused its discretion in denying Banks's request for additional time, nor erred in granting Appellees' Motion for Summary Judgment. For the foregoing reasons, we AFFIRM the Order of the Rockcastle Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Anthony J. Bucher
Covington, Kentucky BRIEF FOR APPELLEES: Haley Trogdlen McCauley
Travers B. Manley
Lexington, Kentucky