Opinion
NO. 2012-CA-001274-MR
02-21-2014
GHASAN FAHMI AWAD AND GHASAN FAHMI AWAD MOTORS APPELLANTS v. FAIRWAY AUTO SALES, A PARTNERSHIP OF BARTY BULLOCK; DENTON BULLOCK; BOB WHITIS; AND DENTON BULLOCK APPELLEES
BRIEF FOR APPELLANT: John T. Pruitt, Jr. Somerset, Kentucky BRIEF FOR APPELLEE: John G. Prather, Jr. Somerset, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE DAVID A. TAPP, JUDGE
ACTION NO. 11-CI-00491
OPINION
AFFIRMING
BEFORE: STUMBO, TAYLOR AND THOMPSON, JUDGES. THOMPSON, JUDGE: Ghasan Fahmi Awad, individually, and Ghasan Fahmi Awad Motors (Awad) appeal from a judgment entered in favor of Fairway Auto Sales, a partnership of Barty Bullock, Denton Bullock, Bob Whitis, and Denton Bullock (Fairway) by the Pulaski Circuit Court following a bench trial. Awad asserts the following errors: (1) the trial court erred when it denied its request to conduct additional discovery after the trial had commenced; (2) the trial court erred in making an award for fraud against Awad; (3) the trial court erred in awarding bank fees and charges to Fairway; and (4) the trial court erred in awarding prejudgment interest to Fairway. We affirm.
Fairway filed this action against Awad, a vehicle broker, alleging Awad failed to pay for seventeen automobiles purchased from Fairway. Fairway alleged Awad engaged in a pattern and practice of delivering a check to Fairway that was later dishonored, receiving title to various vehicles and not tendering proper payment. It sought recovery for the amount of the dishonored checks, bank fees and charges arising from the dishonored checks, damages for fraud, punitive damages and prejudgment interest.
A bench trial was held. At the close of the evidence, the trial court denied Awad's verbal motion to permit additional discovery. It pointed out Fairway's answers to interrogatories were sufficient and made in good faith and, even if not sufficiently responsive, no additional request was made seeking clarification or to compel further responses. The circuit court rendered its findings of fact based on the evidence submitted.
Awad admitted owing $55,000 to Fairway but claimed the parties participated in an ongoing course of business with credits and debits flowing back and forth between the parties. The court found Fairway established that on seventeen occasions, Awad accepted a vehicle from Fairway and, in exchange, gave Fairway seventeen checks that were dishonored. On two occasions, Fairway notified Awad of the dishonored checks by certified mail but Awad did not accept the certified letters. After hearing the evidence, the trial court found the majority of the testimony presented by Awad was not credible and Awad did not intend to establish a regular credit relationship with Fairway. It further found Awad received credit for all amounts paid. The trial court concluded Awad made false representations with the intent that Fairway rely upon those misrepresentations and Fairway relied on those false and material misrepresentations to its detriment.
The trial court awarded Fairway $122,850 for the dishonored checks and bank fees incurred in the amount of $6,396. The court found these amounts to be liquidated and awarded prejudgment interest. Additionally, the court awarded damages for fraud in the amount of $2,500 and costs in the amount of $621.73.
"At a bench trial, the factual findings of the trial court shall not be set aside unless they are clearly erroneous; that is, not supported by substantial evidence." Patmon v. Hobbs, 280 S.W.3d 589, 593 (Ky.App. 2009) (citing Cole v. Gilvin, 59 S.W.3d 468, 472 (Ky.App. 2001)). However, any questions of law that are resolved at trial are reviewed de novo. Id.
Although Awad claimed at trial Fairway's responses to discovery requests were inadequate, it did not make a motion to compel discovery pursuant to Kentucky Rules of Civil Procedure (CR) 37.01 and, therefore, waived any alleged inadequacies. Its remaining allegations of error pertain to questions of fact and our review is limited by the clearly erroneous standard.
Our review is hampered by Awad's complete failure to cite the record below or demonstrate the alleged errors were properly preserved for review. An appellate court will not sift through a trial court record to ascertain facts to support a party's allegations of error on appeal when a party has failed to comply with CR 76.12(4)(d)(iv) by providing specific references to the record. Parker v. Commonwealth, 291 S.W.3d 647, 676 (Ky. 2009).
There is more than sufficient evidence to support the trial court's judgment. Bob Whitis testified concerning the financial dealings between Fairway and Awad and the amount Awad owed. Awad acknowledged closing four different bank accounts in the course of the parties' transactions and admitted at least $55,000 was owed to Fairway. Although Awad alleged various payments were not credited to the amount allegedly owed Fairway, Whitis explained the various credits and offsets did not pertain to the transactions at issue. Further, the trial court was presented with charts and exhibits and found Awad received all credits due.
Additionally, Awad's testimony supports the trial court's finding Awad knowingly made material misrepresentations that were relied upon by Fairway. Awad acknowledged stopping payment on checks and closing bank accounts with the knowledge Fairway would present the checks for payment. Likewise, there was sufficient evidence Fairway incurred bank charges of $6,396 levied by First & Farmers National Bank relating to the dishonor of the seventeen checks issued by Awad.
Finally, because the amount owed was a liquidated claim, prejudgment interest was properly awarded. Nucor Corp. v. General Electric Co., 812 S.W.2d 136 (Ky. 1991).
Based on the forgoing, the judgment of the Pulaski Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: John T. Pruitt, Jr.
Somerset, Kentucky
BRIEF FOR APPELLEE: John G. Prather, Jr.
Somerset, Kentucky