Opinion
NO. 2016-CA-001059-MR
02-02-2018
WILSON OFFICE SUPPLY, INC. APPELLANT v. ESSENDANT CO., F/K/A UNITED STATIONERS SUPPLY APPELLEE
BRIEF FOR APPELLANT: Joe Harvey Kimmell, III Paducah, Kentucky BRIEF FOR APPELLEE: W. Scott Stinnett Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE CRAIG Z. CLYMER, JUDGE
ACTION NO. 15-CI-00915 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; JOHNSON AND MAZE, JUDGES. MAZE, JUDGE: This appeal arises from a McCracken Circuit Court granting summary judgment in favor of the Appellee, Essendant Co., f/k/a United Stationers Supply. As the record shows there were no questions of material fact, we affirm.
In 2007, Pauline Milam, as the president of Wilson Office Supply ("Wilson"), executed a credit application with Essendant's predecessor in interest. Wilson then purchased items from Essendant over several years. Essendant filed a complaint in 2015 seeking payment on outstanding debts owed to them by Wilson. Wilson filed an answer. Essendant then moved for summary judgment. Summary judgment was granted and the trial court found that Wilson was liable for the debt in the amount of $122,499.23. This appeal follows.
The standard of review governing an appeal of a summary judgment is well-settled. "[T]he proper function of summary judgment is to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). In essence, for summary judgment to be proper, the movant must show that the adverse party cannot prevail under any circumstances. Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255, 256 (Ky. 1985). Therefore, we will find summary judgment appropriate only "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. Because a summary judgment involves no fact finding, this Court's review is de novo, in the sense that we owe no deference to the conclusions of the trial court. Blevins v. Moran, 12 S.W.3d 698, 700 (Ky. App. 2000).
Kentucky Rules of Civil Procedure. --------
On appeal, Wilson contends that the trial court erred in granting summary judgment because there was a dispute as to the amount owed supported by an accountant's affidavit and a question as to whether the contract was valid due to the alleged dementia of Pauline Milam.
Here, there is no evidence in the record to suggest that Pauline was incompetent when she entered the contract in 2007. As the trial court correctly stated,
[t]here is no proof that [Wilson's] president was incompetent when the buyer/seller relationship began in 2007 nor that she was incompetent at any time as the relationship continued. Furthermore, [Wilson] continued to buy, [Essendant] continued to sell, and [Wilson] paid for the purchases for years. If an officer of the corporation became incompetent at some time during this process, it would not excuse a corporation from liability for payment for purchases.Whether part of the debt was incurred prior to the issuance of the line of credit is irrelevant. We also find that the accountant's affidavit is not specific enough to raise a question as to the amount owed. We, therefore, agree with the trial court that the record is clear that "[t]he real issue is that [Essendant] extended credit to [Wilson] and [Wilson] now owes [Essendant] for the goods they purchased." We affirm on both the issue of liability and the amount owed.
ALL CONCUR. BRIEF FOR APPELLANT: Joe Harvey Kimmell, III
Paducah, Kentucky BRIEF FOR APPELLEE: W. Scott Stinnett
Louisville, Kentucky