Opinion
NO. 2015-CA-000974-MR
02-03-2017
DARIUS CALLOWAY; LALICE CALLOWAY; ROBERT CALLOWAY; ISAIAH CALLOWAY; AND WANDA WILCOX APPELLANTS v. INSTANT AUTO CREDIT, INC.; AND CHRIS MEINHART, PUBLIC ADMINISTRATOR OF THE ESTATE OF REBECCA L. CALLOWAY APPELLEES
BRIEF FOR APPELLANT: Aubrey Williams Louisville, Kentucky BRIEF FOR APPELLEE: Chris Meinhart Louisville, Kentucky Keith Stonecipher Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE SUSAN SCHULTZ GIBSON, JUDGE
ACTION NO.12-CI-002165 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; ACREE AND D. LAMBERT, JUDGES. LAMBERT, D., JUDGE: This is an appeal from the Jefferson Circuit Court's May 26, 2015 summary judgment in favor of Instant Auto Credit, Inc. ("Instant Auto"). When Instant Auto attempted to recover on a judgment lien against the Estate of Rebecca Calloway, it met opposition from her heirs. The circuit court eventually granted judgment for Instant Auto after the discovery process revealed the heirs could not support their defenses. After review, we affirm.
I. BACKGROUND
In 1975, Isaiah Calloway, allegedly acting as trustee for his mother Thelma Langley, acquired real property in her name located at 838 Hazel Street, Louisville, Kentucky (the "real property"). Isaiah was one of Thelma's four children. Robert Calloway, Wanda Wilcox, and Rebecca Calloway were the other three. A general warranty deed was recorded in the Jefferson County Clerk's office on February 12, 1975.
On September 11, 2003, Rebecca obtained title to the real property. That day, Rebecca allegedly received a quitclaim deed from Thelma and Isaiah and recorded it in the Jefferson County Clerk's office. The conveyance by quitclaim deed was notarized by Dorothy LaRue. Thelma and Isaiah purportedly signed the document as designated grantors, while Wanda purportedly signed as a witnessing party. From the record, Rebecca and her son, Darius Calloway, lived at the real property following the 2003 conveyance. Thelma did not live at the real property at the time of her death in October 2009.
Rebecca died on November 20, 2010. Soon after, Instant Auto filed a petition in the Jefferson District Court to probate Rebecca's estate. Instant Auto had recorded a judgment lien against Rebecca's real property and sought to recover on that lien. Though unclear from the record, Rebecca evidently died testate. Nevertheless, the district court appointed appellee Chris Meinhart to serve as public administrator.
On April 16, 2012, the appellants filed a complaint against Instant Auto and Meinhart. They claimed Rebecca had obtained title to 838 Hazel Street through fraud by forging the signatures of Thelma, Isaiah, and Wanda on the quitclaim deed. For relief, the appellants asked the circuit court to declare the quitclaim deed void ab initio and enter a declaratory judgment as to the appellants' interest in 838 Hazel Street.
As the matter progressed, Instant Auto sent discovery requests to Isaiah. On March 12, 2014, Instant Auto sent interrogatories, requests for admissions, and requests for production of documents. Instant Auto did not receive any response with respect to these requests until September 5, 2014. On that day, Instant Auto received responses to the discovery requests signed by Isaiah's counsel, but not Isaiah. In fact, only Darius' signature appeared on the responses.
On November 25, 2014, Instant Auto sent requests for admissions to Darius, Robert, and Wanda. The three siblings filed responses to these requests on January 28, 2015. Because they did not explain to the circuit court why it took them so long to file the requests, Instant Auto argued these responses were untimely under CR 36. Instant Auto also argued that because they ran afoul of the civil rules, the three siblings admitted the allegations contained in the requests for admissions— namely, that they did not have any evidence to either prove Rebecca's forgery or invalidate the notary's certificate of acknowledgment. The circuit court agreed with Instant Auto and concluded that Rebecca did not obtain title to 838 Hazel Street by fraud. The appellants brought this appeal after the circuit court granted Instant Auto summary judgment.
Kentucky Rules of Civil Procedure. --------
II. STANDARD OF REVIEW
The responsibility of the appellate court when reviewing a trial court's summary judgment is to determine whether the trial court correctly determined that there were no genuine issues of 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); CR 56.03. Summary judgment is not a substitute for trial and is to be cautiously applied. Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). It is only appropriate to award summary judgment when, as a practical matter, it appears impossible for the nonmoving party to prevail at trial. Id. (citing Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255, 256 (Ky. 1985)). "The moving party bears the initial burden of showing that no genuine issue of material fact exists, and then the burden shifts to the party opposing summary judgment to present at least some affirmative evidence showing that there is a genuine issue of material fact for trial." Lewis v. B & R Corporation, 56 S.W.3d 432, 436 (Ky. App. 2001) (internal quotations and citation omitted). The party opposing summary judgment cannot satisfy this burden by merely relying on his own allegations. Hallahan v. The Courier-Journal, 138 S.W.3d 699, 705 (Ky. App. 2004). Finally, since the trial court does not resolve factual disputes at the summary judgment stage, but instead only decides legal issues and whether any factual disputes exist, we apply a de novo standard of review. Lewis, 56 S.W.3d at 436.
III. DISCUSSION
On appeal, the appellants contend the circuit court committed reversible error in finding that the responses to Instant Auto's discovery requests were untimely filed. The appellants argue that Isaiah cured his failure to respond by filing an amended response and that Thelma's other three children cured their failure to respond by responding late. The appellants also contend that the circuit court misconstrued the legal effect of a notary's certification on a deed. For the following reasons, the circuit court did not commit reversible error.
The following paragraph from Harris v. Stewart, 981 S.W.2d 122, 124 (Ky. App. 1998), correctly summarizes the applicable law regarding requests for admissions under CR 36:
A proper request for admissions is often an effective tool in pretrial practice and procedure. Once a party has been served with a request for admissions, that request cannot simply be ignored with impunity. Pursuant to CR 36.01, the failure of a party to respond to such a request means that the party admits the truth of the allegations asserted. [See Commonwealth of Ky. Dep't. of Highways v. Compton, 387 S.W.2d 314 (Ky. 1964)]. Furthermore, any matter admitted under the rule is held to be conclusively established unless the trial court permits the withdrawal or amendment of the admissions. CR 36.02. Thus, an inattentive party served with a request for admissions may run the risk of having judgment entered
against him based upon the failure to respond. [See Lewis v. Kenady, 894 S.W.2d 619 (Ky. 1995)]. Pursuant to the rule, however, the trial court retains wide discretion to permit a party's response to a request for admissions to be filed outside the 30 or 45-day time limit delineated by the rule.(internal footnote omitted).
Here, Instant Auto sent proper requests for admissions to Thelma's children. The requests sent to Isaiah went unanswered for five months, and the requests sent to Darius, Robert, and Wanda went unanswered for two months. Thelma's children did not ask the circuit court for extra time to respond nor did they move the circuit court to excuse their delay. Indeed, they did not provide any explanation whatsoever as to why they responded when they did. The circuit court thus reasonably determined the matters alleged in Instant Auto's requests for admissions were conclusively established. The circuit court did not abuse its discretion.
Though the appellants could not prove Rebecca forged any signature on the quitclaim deed, the circuit court specifically granted summary judgment because the appellants could not prove Dorothy LaRue either made a mistake or facilitated Rebecca's alleged fraud. The circuit court correctly noted that Kentucky presumes the validity of a notary's certificate on a deed unless contradicted by clear and convincing evidence. See Gose v. Perry, 302 S.W.2d 618, 619 (Ky. 1957) (deed purportedly signed and acknowledged by the grantors before a notary invalidated based on the notary's own testimony). Based on this presumption, the circuit court ultimately found that the appellants had not offered any contradictory evidence regarding LaRue's certificate. This was a proper application of the law. Accordingly, the Jefferson Circuit Court's summary judgment is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Aubrey Williams
Louisville, Kentucky BRIEF FOR APPELLEE: Chris Meinhart
Louisville, Kentucky Keith Stonecipher
Louisville, Kentucky