Kay Shelton v. Amy Holtkamp ( 2020 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
KAY SHELTON, INDIVIDUALLY AND AS APPELLANT
ADMINISTRATRIX OF THE ESTATE OF
JERRY SMITH
ON REVIEW FROM COURT OF APPEALS
V. CASE NO. 2017-CA-002007
ROCKCASTLE CIRCUIT COURT NO. 2016-CR-00112
AMY HOLTKAMP APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Kentucky Rule of Civil Procedure (CR) 56.03 requires at least ten days’
notice to the adverse party before the time fixed for the hearing on a motion for
summary judgment. At a hearing upon less than the required ten-day notice,
the trial court granted Amy Holtkamp’s partial summary judgment motion and
awarded her compensatory damages against Kay Shelton. Shelton appealed
and the Court of Appeals affirmed, holding that Shelton’s failure to respond to
the motion, attend the hearing, or otherwise make her objections known
constituted a waiver of the ten-day notice requirement. The Court of Appeals
further held that the trial court had sufficient evidence to support the damages
awarded. On discretionary review, we affirm the Court of Appeals’ decision.
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I. FACTUAL AND PROCEDURAL BACKGROUND
Jerry Smith died with a will that made dispositions to his only child,
Holtkamp, and his girlfriend, Shelton, who were also appointed co-
administrators of his estate. At the time of his death, Smith owned or had an
interest in several pieces of real estate. Some of the properties, including an
84-acre farm devised to Holtkamp, were owned solely by Smith. Others he
owned with Shelton in joint tenancy with right of survivorship. All the
properties were encumbered by a $200,000 mortgage to Citizens Bank.
While serving as co-administrator of Smith’s estate, Shelton negotiated
on her own behalf with Citizens Bank to pay $90,000 to the bank in exchange
for a release on all the property she owned with Smith or inherited from him.
Upon doing so, the 84-acre farm, the only real property Holtkamp received
under the will, was left to secure the debt to the bank. The bank subsequently
foreclosed its mortgage on the farm to collect its debt.
The present case arises out of Holtkamp’s suit against Shelton for a
breach of a fiduciary duty for alleged self-dealing as co-administrator of Smith’s
estate. During the pendency of the case, Shelton’s lawyers withdrew as her
counsel of record. Several months later, Holtkamp served Shelton with
requests for admission in which Shelton was asked to admit that she owed a
fiduciary duty to Holtkamp that she breached by negotiating her own separate
release from the mortgage secured by the property she owned with Smith or
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inherited under the will.1 Shelton apparently never responded to the requests
for admission.
Holtkamp ultimately moved for partial summary judgment, contending in
her motion that Shelton’s failure to respond to the requests for admission
eliminated all factual issues of liability.2 Holtkamp submitted with her motion
an affidavit in which she stated that she suffered compensatory damages of
$80,000 based upon the local PVA’s valuation of the lost farm. Holtkamp
indisputably failed to give at least ten days’ notice of this hearing as required
by CR 56.03. Shelton did not appear for the hearing, and the trial court
granted partial summary judgment and damages of $80,000. Holtkamp’s claim
for punitive damages remained unresolved by the trial court, but the trial court
designated the partial summary judgment as “final and appealable,” noting no
just reason to delay.3
A month after entry of the partial summary judgment, Shelton retained
new counsel who did not move the trial court to set aside the judgment.
Instead, Shelton filed a notice of appeal arguing that the trial court erred by
failing to comply with the ten-day notice requirement and awarding damages
on insufficient evidence. The Court of Appeals affirmed the judgment.
1 CR 36.01(1).
2 CR 36.01(2).
3 In an apparent allusion to CR 56.04, Shelton mentions in the Introduction to
her brief to this Court that the partial summary judgment was “improperly designated
as final and appealable.” But we consider that argument abandoned on appeal
because it is not addressed in the brief.
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II. ANALYSIS
A. Standard of Review
Because the grant or denial of summary judgment is a legal question,
involving no factual findings by the trial court, this Court reviews the trial
court’s decision de novo.4 Therefore, “the standard of review on appeal of
summary judgment is whether the trial court correctly found that there was no
issue as to any material fact and that the moving party is entitled to summary
judgment as a matter of law.”5
1. Shelton waived her right to claim insufficient notice of the
summary judgment hearing.
We agree with the Court of Appeals’ holding that Shelton waived her right
to claim insufficient notice. A hearing for summary judgment requires the
moving party to provide at least ten-days’ notice of the hearing to the
nonmoving party.6 If notice is insufficient, the opposing party must make the
trial court aware either before or at the hearing.7 But if summary judgment is
nonetheless granted, a party may within a reasonable time seek relief from the
final judgment for insufficient notice.8
Whether waiver results from a party’s failure to object to insufficient
notice is circumstantial. Waiver is an intentional relinquishment of a right, but
4 Cmty. Fin. Serv. Bank. v. Stamper, 586 S.W.3d 737, 741 (Ky. 2019).
s Scrifes v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996).
6 CR 56.03 (“[T]he motion shall be served at least ten days before the time fixed
for the motion.”).
7 Equitable Coal Sales, Inc. v. Duncan Mach. Movers, Inc., 649 S.W.2d 415, 416
(Ky. App. 1983).
8 CR 60.02.
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waiver may be inferred from the party’s conduct.9 For example, in Equitable
Coal Sales, Inc. v. Duncan Machinery Movers, Inc., the non-moving party’s
failure to object to the hearing date or make other objections constituted a
waiver of the right to contest insufficient notice.10 But a showing that the party
was prejudiced because he had less than ten-days’ notice may direct the court
to find the issue has not been waived.11 Similarly, this Court has long held
that the complete failure to appear or respond will not result in a default
judgment being vacated on appeal absent a showing of good cause.12
Here, the parties do not dispute that less than ten-days’ notice was given
to Shelton. Holtkamp’s counsel’s certificate of record shows that he mailed the
motion and notice of hearing to Shelton only a few days before the hearing was
scheduled. But Shelton has never contended she failed to receive the motion
before the scheduled hearing. She failed to raise deficiency of notice before the
hearing, she failed to appear at the hearing, and she failed to request relief
from the trial court after the hearing. This conduct is like that in Equitable
Coal Sales in which the right to contest insufficient notice was waived.13 So
absent a showing of prejudice, Shelton’s right to contest the adequacy of notice
was waived.
9 Bates v. Grain Dealers Nat’l Mut. Fire Ins. Co., 283 S.W.2d 3, 5 (Ky. 1955).
10 Equitable Coal Sales, at 416.
11 Id. at 416.
12 Ryan v. Collins, 481 S.W.2d 85, 89 (Ky. 1972) (upholding default judgment
despite procedural irregularities, such as lack of certification that process had not
been served, because they did not result in prejudice).
13 Equitable Coal Sales, at 416.
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Importantly, Shelton, has not provided evidence that she was prejudiced
by the insufficient notice. She does not contend that she would have been able
to offer any dispute of material fact at the hearing. Rather, Shelton contends
that a failure to appear cannot be an “intentional relinquishment of a right.”14
We disagree. A failure to appear without a showing that it was because of
insufficient notice, accompanied by no proper objection at any time results in
waiver.15
Further, as Shelton acknowledges, waiver can be inferred from
conduct.16 While Shelton’s original attorneys withdrew from representation
after Shelton’s Answer was filed, she did not retain new counsel until roughly
six months later. Further, she did not respond to discovery requests,
specifically the requests for admission. It was only after summary judgment
was entered that Shelton retained her current attorney. These actions create a
strong inference of an intentional relinquishment of the right to contest the
sufficiency of notice. Therefore, because Shelton failed to make objections
before the hearing, attend the hearing, or request relief from the final judgment
after its entry, the sufficiency of notice required by CR 56.03 was waived on
appeal.
2. There was sufficient evidence to conclude that no issue of material
fact existed in the case.
We also affirm the Court of Appeals’ holding that the motion for
summary judgement was properly granted. Summary judgment will be granted
14 Id. at 416.
15 Id.; Collins, 481 S.W.2d at 89.
16 Equitable Coal Sales, at 416.
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when the moving party puts forth evidence through pleadings, interrogatories,
stipulations, admissions, and affidavits that no material issue of fact exists in
the case.17 To survive summary judgment, the opposing party must put forth
similarly admissible evidence that there is a disputed material fact.18 The
evidence will be viewed in a light most favorable to the opposing party and the
movant must show that the opposing party is extremely unlikely to prevail.19
A plaintiff moving for summary judgment for breach of fiduciary duty
would need to show that there is no dispute that the defendant owed her a
fiduciary duty, that the duty was breached, and caused her injury resulting in
damages.20 When damages are awarded at the summary judgment stage, they
are fixed by the evidence provided in support of the motion.21 Damages cannot
be speculative, but significantly, “where it is reasonably certain that damage
17 CR 56.03; Steelvest, Inc. v. Scansteel Serv. Ctr, Inc., 807 S.W.2d 476, 482 (Ky.
2001) (“Finally, under both the Kentucky and the federal approach, a party opposing a
properly supported summary judgment motion cannot defeat it without presenting at
least some affirmative evidence showing that there is a genuine issue of material fact
for trial.”).
18 Id. at 482 (“The trial judge must examine the evidence, not to decide any
issue of fact, but to discover if a real issue exists. It clearly is not the purpose of the
summary judgment rule, as we have often declared, to cut litigants off from their right
of trial if they have issues to try.”).
19 Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255, 256 (Ky. 1985).
20 Baptist Physicians Lexinqton, Inc. v. New Lexinqton Clinic, P.S.C., 436 S.W.3d
189, 192 (Ky. 2013).
21 CR 56. 03; Spencer v. Woods, 282 S.W.2d 851, 852 (Ky. 1955) (“ . . . While
damages in this type of case may be difficult to prove, nevertheless they are not
conjectural and speculative as a matter of law. If, on a trial, Spencer should be able to
prove, beyond the realm of speculation, that had the crop been properly tended, as
agreed, it would have had a greater value than was realized from it, he would be
entitled to a recovery.”).
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has resulted, mere uncertainty as to the amount does not preclude one's right
of recovery . . . . ."22
In the current case, Holtkamp filed a motion for summary judgment
against Shelton for breach of fiduciary duty. Her motion was based primarily
on Shelton’s failure to respond to the request for admissions. Because
unanswered admissions are deemed admitted, Holtkamp’s motion provided
evidence that Shelton owed her a fiduciary duty as co-administrator and co-
beneficiary of Smith’s estate, and that Shelton breached that duty by serving a
release of Citizens Bank’s interest in the jointly owned property in partial
satisfaction of Smith’s debt. The admissions established that Shelton’s breach
of her fiduciary duty caused Holtkamp’s inheritance to be the only security for
the remaining debt owed to the bank.
Additionally, in an attached affidavit Holtkamp alleged her damages to be
$80,000 based on the county’s Property Valuation Administrator’s valuation of
the 84-acre farm. Shelton, on the other hand, did not dispute any of these
allegations. The Court of Appeals did not err in its holding that Holtkamp’s
affidavit containing the PVA’s valuation was sufficient proof of damages for the
trial court to award damages. As previously stated, a court in considering a
motion for summary judgment may consider the pleadings, interrogatories,
stipulations, admissions, and affidavits provided by the moving party.23 The
22 Curry v. Bennett, 301 S.W.3d 502, 506 (Ky. App. 2009) (citing Roadway
Express. Inc. v. Don Stohlman & Assocs., Inc., 436 S.W.2d 63, 65 (Ky. 1968)).
23 CR 56.03.
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evidence of damages must be admissible, but it cannot be speculative.24 So
while Shelton correctly argues that the PVA’s valuations are not conclusive
proof and are to be considered in light of contrary evidence, the opposing party
must dispute the evidence with her own, or at the least, contest it as incorrect.
Shelton did not provide evidence that the estimate was an incorrect evaluation
of Holtkamp’s damages, and still does not contest the PVA’s estimation.
Finally, summary judgment was appropriate because it was reasonably
certain that Holtkamp had been injured. Damages cannot be speculative, but
“where it is reasonably certain that damage has resulted, mere uncertainty as
to the amount does not preclude one's right of recovery or prevent a jury
decision awarding damages.”25 Here, Holtkamp provided evidence of her claim
through Shelton’s admissions. These admissions provided the basis for
damages, as they established a fiduciary duty owed to Holtkamp by Shelton, a
breach of that duty, and resulting damages. Therefore, it was reasonably
certain that damage to Holtkamp had resulted. The damages cannot be said to
be arbitrary.
III. CONCLUSION
For the reasons discussed above, we affirm the decision of the Court of
Appeals.
Minton, CJ, Hughes, Keller, Nickell, VanMeter and Wright, JJ., sitting.
24 Steelvest, 807 S.W.2d 482-83 (“Under the present practice of Kentucky
courts, the movant must convince the court, by the evidence of record, of the
nonexistence of an issue of material fact .... As declared in Paintsville Hospital, it
should only be used ‘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 and against the movant.”’) (citations omitted).
25 Curry, 301 S.W.3d at 506.
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A
Lambert, J., not sitting. All concur.
COUNSEL FOR APPELLANTS:
Jerry William Gilbert
Coy, Gilbert Shepherd & Wilson
COUNSEL FOR APPELLEE:
Michael Scott Fore
Simons & Fore, PSC
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