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Court of Appeals of Kentucky.


NO. 2011–CA–000928–MR

Decided: May 11, 2012

BEFORE:  CLAYTON, MOORE, AND NICKELL, JUDGES. BRIEF FOR APPELLANT:  Tommy R. May Pikeville, Kentucky BRIEF FOR APPELLEE:  Lawrence R. Webster Pikeville, Kentucky



Bill Higginbotham appeals from the Pike Circuit Court's entry of summary judgment in favor of the Estate of Velma Childers in an action seeking collection of a debt.   Following a careful review of the record, we affirm in part, vacate in part, and remand the cause to the trial court with directions to enter a revised judgment.

Higginbotham and Childers maintained a friendship for approximately forty years and had some business dealings over the term of the relationship.   Sometime in 2006 Higginbotham became unemployed and Childers gave him financial assistance.   The pair disagreed on the characterization of the transactions.   Higginbotham believed he did not “borrow” the money, it was not a “loan,” and no repayment terms were ever discussed.   He claimed Childers “extended” him some money and that he “reciprocated” money back to Childers, possibly more than he had received from her.   Childers classified the arrangement as a loan and kept detailed notes regarding the amounts of money she lent as well as amounts Higginbotham repaid.

The relationship between Higginbotham and Childers apparently soured.   On July 21, 2009, Childers filed the instant suit alleging Higginbotham was in default on the loan and was indebted to her in an amount in excess of $16,000.00.   Higginbotham filed an answer disputing the existence of any loan.   Following a period of discovery, the matter was set for trial in December 2009.   Before the trial date, Childers was involved in an automobile accident and was killed.   The action was revived in the name of her estate on June 22, 2010. Double

Higginbotham was deposed on October 1, 2010.   He indicated his belief that the total amount given to him by Childers was approximately $10,000.00 and that he had paid her back at least that much, if not more.   He testified the money he received from Childers was not in the form of a loan and no repayment of the sums “extended” was discussed.   He classified the transactions as one friend helping another who was in need.   He denied promising to repay any money to Childers and denied authoring any letters or other writings acknowledging the debt.

Higginbotham testified that he had no records of how much money Childers “extended” to him and only limited records showing the amounts he paid back to her.   He was shown a ledger kept by Childers evidencing the details of the financial dealings between them.   He stated he had reviewed a copy of the ledger and that the figures shown seemed to be correct.   Higginbotham indicated he had no evidence to dispute the amounts listed as to how much he had received or repaid.   The ledger, copies of bank receipts showing deposits Higginbotham made to Childers' checking account, handwritten notes indicating cash payments to Childers or others on her behalf,Double and receipts from a grocery store for items purportedly purchased for Childers were all attached as exhibits to the deposition filed in the record.   Childers' records indicated Higginbotham was indebted to her in the amount of $10,429.00 on the loan Double and an additional $3,340.00 for unpaid commissions related to a business arrangement. Double

On December 3, 2010, Childers moved for summary judgment alleging no genuine issues of material fact existed.   Attached to the motion were letters from Higginbotham to Childers discussing a “loan”;  a copy of Childers' ledger;  copies of cancelled checks referencing “repayments on loan from VJ”;  and two unexecuted agreements bearing dates in September 2006 referencing the loan obligation, commissions owed, security and collateral pledges, and repayment terms.   Childers alleged she was entitled to judgment in the total amount of $13,769.00.

Higginbotham responded to the summary judgment motion.   Contrary to Childers, he asserted there were genuine issues of material fact present which would defeat the motion for summary judgment.   Relying on his deposition testimony, he opined that there was no “debt” owed by him to Childers and no agreement to repay any sums she had given him.   He alleged he had paid Childers in excess of $7,850.00 and provided receipts substantiating these payments. Double Finally, he contended the issue of unpaid commissions was not properly before the court for adjudication.

Following a brief hearing at which no testimony or evidence was presented, the trial court took the matter under advisement.   The trial court entered an order granting summary judgment to Childers in the amount of $13,769.00 Double plus costs on March 17, 2011.   An amended order was entered on April 26, 2011, correcting a typographical error in the original order. Double This appeal followed.

The well-settled standard of review of a trial court's grant of summary judgment is whether the trial court correctly found there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law.  Steelevest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky.1991).   Summary judgment is appropriate 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.’ ”  Id. at 483 (quoting Paintsville Hospital Co. v. Rose, 683 S.W.2d 255, 256 (Ky.1985)).  “The party opposing summary judgment cannot rely on their own claims or arguments without significant evidence in order to prevent a summary judgment.”  Wymer v. JH Properties, Inc., 50 S.W.3d 195, 199 (Ky.2001) (citing Harker v. Federal Land Bank of Louisville, 679 S.W.2d 226 (Ky.1984)).   In making its determination, a trial court must discern “whether, from the evidence of record, facts exist which would make it possible for the nonmoving party to prevail.   In the analysis, the focus should be on what is of record rather than what might be presented at trial.”  Welch v. American Publishing Co. of Kentucky, 3 S.W.3d 724, 730 (Ky.1999).

Before this Court, Higginbotham remains constant in his assertion that no debt was owed on a loan of any kind between the parties.   He reiterates his deposition testimony that no writing exists memorializing any financial transactions or the terms thereof and questions the validity of the unexecuted security agreements attached to Childers' motion for summary judgment.   Thus, he argues the trial court erroneously found no material issue of fact existed as to whether a loan or an obligation thereunder actually existed.   In the alternative, Higginbotham contends the trial court erred in granting summary judgment as an issue of fact remained regarding the amount actually owed on the alleged debt.   We disagree with Higginbotham's assertions and affirm.

The initial burden is on the proponent of the motion for summary judgment to convince the trial court of the nonexistence of an issue of material fact.   Once that burden has been met, the burden shifts to the party opposing summary judgment to present affirmative evidence showing that such a material issue exists.   The party opposing summary judgment “cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must present affirmative evidence in order to defeat a properly supported motion for summary judgment.”  Steelvest, 807 S.W.2d at 481 (internal quotations omitted) (citation omitted).

In the case sub judice, Higginbotham did not produce any affirmative evidence in responding to the summary judgment motion, but rather relied solely upon his assertions and arguments made during his discovery deposition.   Our jurisprudence makes it abundantly clear that such actions cannot suffice to overcome the burden placed on opponents of properly supported summary judgment motions.   Moreover, Higginbotham's deposition testimony was directly contradicted by his own writings wherein he referred to the money “extended” by Childers as a “loan” and noted on his checks tendered for payment that the funds were for “repayment on a loan.”   Higginbotham's self-serving testimony cannot overcome the substantial evidence of record indicating the parties' intention that the financial transactions be treated as a loan requiring repayment, especially when much of such evidence originated with his own hand.   Likewise, Higginbotham testified that Childers' ledger accurately showed the details of the transactions and that he had no evidence to contradict the figures contained therein.   Thus, his contention that an issue existed as to the amount due and owing is without merit.   Based on the record before us, we cannot say the trial court erred in concluding no genuine issue of material fact existed or that Childers was entitled to a judgment as a matter of law.

Finally, Higginbotham contends the trial court erred in including amounts for allegedly unpaid commissions in its judgment.   He argues the pleadings were insufficient to properly bring the issue before the court.   We agree.

Although Kentucky law no longer requires “technical forms of pleadings [,]” CR 8.05(1), it does require that all “pleadings shall be so construed as to do substantial justice.”  CR 8.06;  McCollum v. Garrett, 880 S.W.2d 530, 533 (Ky.1994).  “The purpose of the complaint is to give notice.  CR 8.01(1) requires a complaint to concisely state the claim showing entitlement to relief and a demand for the relief to which the plaintiff believes he/she is entitled.”  Bolin v. Davis, 283 S.W.2d 752, 756 (Ky.App.2008).

Childers' four paragraph complaint referenced an outstanding debt owed in an amount exceeding $16,300.00 and alleged “[t]he foregoing indebtedness was a loan from the Plaintiff to the Defendant which the Defendant has failed to repay.”   Nowhere in the pleading does any mention of alleged unpaid sales commissions appear.   While Higginbotham may have learned during the pendency of the action that Childers was seeking payment for these commissions, we cannot conclude that the claim was properly brought before the trial court for adjudication.

Higginbotham noted the defect in his response to the motion for summary judgment.   In spite of being placed on notice of this procedural deficiency, Childers failed to move to amend her complaint to state a claim based on the unpaid commissions.   Further, the trial court specifically included “the balance due for commissions on candle sales in the sum of $3,340.00” in its order granting summary judgment, but did not indicate any consideration of Higginbotham's argument related to the defect in the pleadings nor how it determined the claim was properly before it.   Our review of the record indicates Childers' complaint failed to give notice of the claim for unpaid commissions and the issue was thus not properly before the trial court for adjudication.   The trial court therefore erred in granting judgment Double on such claim and we must vacate that portion of the summary judgment relating to the candle commissions.

For the foregoing reasons, the judgment of the Pike Circuit Court is affirmed in part, vacated in part, and remanded for entry of a judgment consistent with this Opinion.

all concur.