Reed v. FRANKLIN CREDIT MANAGEMENT CORPORATION
v.
FRANKLIN CREDIT MANAGEMENT CORPORATION; Sean Reed; Sue Colwell; Charles Colwell; Epperson Electric; and Epperson Electric-Plumbing Division, Inc., Appellees.
Court of Appeals of Kentucky.
Deborah Spring, Somerset, Kentucky, Brief for Appellant.
Jenna Watts, London, Kentucky, Brief for Appellee, Franklin Credit, Management Corporation.
SEAN REED; SUE COLWELL; CHARLES COLWELL; EPPERSON ELECTRIC; AND EPPERSON ELECTRIC-PLUMBING DIVISON, INC., No Briefs for Appellees.
Before: ACREE and VANMETER, Judges; HENRY,[1] Senior Judge.
NOT TO BE PUBLISHED
OPINION
ACREE, JUDGE:
Angela Reed appeals from an opinion and order of the Rockcastle Circuit Court granting summary judgment to Franklin Credit Management Corporation (FCM) in its foreclosure action against her. We affirm.
In May 1996, Sue and Charles Colwell gave their daughter, Reed, and her husband, Sean, a one-half interest in a parcel of land, adjoining their personal residence. Reed and her husband immediately began constructing a house on the property. By 2000, with the house still incomplete, Reed needed financing to finish construction. Reed's parents executed a deed granting her and her husband the remaining one-half interest in the property. On the same day, they executed a note and mortgage with Homegold, Inc. Homegold subsequently sold the mortgage to FCM.
In 2003, Reed and her husband divorced. In the couple's separation agreement, each agreed the subject property was to be transferred to Sue Colwell in consideration of her assuming the debt totaling $69,000.00 on the property. On June 17, 2004, Reed transferred her interest in the property back to her mother by deed. Reed subsequently defaulted on her mortgage.
In August 2005, FCM initiated a foreclosure action relative to the subject property. On March 8, 2006, FCM served Reed with requests for admission. On May 26, 2006,[2] FCM moved for summary judgment on the grounds that no response had been submitted to the requests for admission and those requests were deemed admitted. Consequently, no issues of material fact remained. The motion was heard on June 8, 2006, at which point Reed still had not filed responses. By June 19, 2006, Reed still had not responded, so the circuit court entered two orders: 1) compelling Reed to answer the March discovery request within 10 days; and 2) granting FCM summary judgment.
On June 29, 2006, Reed complied with the circuit court's order and responded to FCM's requests for admission. She also filed a motion to set aside the summary judgment order citing attorney error in not timely responding to discovery requests.[3] FCM filed a response arguing that even if Reed was given the opportunity to answer the request for admissions out of time, summary judgment was still proper. On July 24, 2007, the circuit court denied Reed's motion and reaffirmed its order granting summary judgment
Reed subsequently filed a notice of appeal with this Court. That appeal was dismissed because it was not taken from a final and appealable order. On October 25, 2007, the Rockcastle Circuit Court entered its final order. This appeal followed.[4]
The circuit court's refusal to allow Reed to file responses to requests for admission out of time is an evidentiary ruling. Our standard of review in matters involving a trial court's rulings on evidentiary issues and discovery disputes is abuse of discretion. Manus, Inc. v. Terry Maxedon Hauling, Inc., 191 S.W.3d 4, 8 (Ky.App. 2006). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000). CR 36 details the procedure for obtaining requests for admission. Pursuant to CR 36.01, "[t]he matter is admitted unless, within 30 days after service of the request, . . . the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter[.]" CR 36.02 provides, in pertinent part:
Any matter admitted under Rule 36 is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to the provisions of Rule 16 governing amendment of a pretrial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.
We cannot identify any abuse of discretion in the circuit court's decision not to set aside its order deeming the requests for admission as admitted. There is no dispute that Reed's counsel received the requests, five in number, seeking Reed's admission that she owned the property and executed the mortgage on it. Reed's counsel admits that the failure to respond resulted from an oversight in her office. We appreciate counsel's candor. However, even after FCM served its motion for summary judgment, more than a month passed before Reed filed responses to the requests, and then only after the circuit court ordered it done. In all, it took nearly four months to respond to the five requests. Based upon the circumstances of this case, we hold that the circuit court did not abuse its discretion in either deeming the requests for admissions as admitted due to Reed's failure to respond, or in denying Reed's motion to amend her admissions.
Next, we shall address the circuit court's entry of a summary judgment in favor of FCM. The standard of review we must apply to the appeal of a summary judgment is well settled in this Commonwealth. The standard of review on appeal when a circuit court grants a motion for summary judgment is "whether the trial court correctly found that there were no genuine issues as to any 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). The trial court must view the evidence in the light most favorable to the non-moving party, and summary judgment should be granted only if it appears impossible that the non-moving party will be able to produce evidence at trial warranting a judgment in his favor. Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480-82 (Ky. 1991). The party seeking summary disposition bears the initial burden of establishing that no genuine issue of material fact exists and the burden then shifts to the party opposing the motion to present "at least some affirmative evidence showing that there is a genuine issue of fact for trial." Id. at 482.
Given the admissions, there is no question FCM was entitled to summary judgment. But we also agree with the circuit court that, even if Reed's responses to requests for admission are taken into account, summary judgment was appropriate.
Reed alleges the June 30, 2000, deed conveying full ownership of the subject property to her and her husband was forged. However, subsequent events and Reed's own actions contradict that assertion. Reed's separation agreement directly addressed the property, stating the couple's marital home and property "shall be conveyed to Sue Colwell [sic] in consideration of her assuming the debt on said property in the amount of $69,000.00." The original amount of the mortgage Reed denies executing was $69,250.00. Additionally, on June 17, 2004, Reed executed a deed conveying back to Colwell the same property she now denies ever owning. The June 17, 2004 deed identifies the June 30, 2000 deed by which she received the property as its source of title.
FCM argues Reed is estopped by deed to deny title. We agree. The doctrine of estoppel by deed is that parties to a deed are prohibited from denying the truth of the deed, from asserting any rights or title in derogation of the deed against any other parties to the deed, or from denying the truth of any material facts asserted in the deed. Kentucky River Coal Corp. v. Jones, 441 S.W.2d 409, 411 (Ky. 1969); Meyer v. Jefferson County, 305 S.W.2d 536, 537 (Ky. 1957). This doctrine therefore bars Reed's claim that the June 2000 deed was forged. Summary judgment in favor of the FCM was proper.
For the foregoing reasons, the judgment of the Rockcastle Circuit Court is affirmed.
ALL CONCUR.
[1] Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute 21.580.
[2] The motion was served on this date and filed with the clerk of the court on May 30, 2006.
[3] Reed also failed to answer Interrogatories served simultaneously with the requests for admission.
[4] FCM's motion to strike Reed's brief for failure to comply with Kentucky Rules of Civil Procedure (CR) 76.12(2)(a) was denied by this Court. FCM's alternate motion to extend the time for filing its brief was not opposed by Reed. FCM timely filed its brief on May 27, 2008, and its motion for an extension was denied as moot by this Court on June 10, 2008.
