Opinion
NO. 2011-CA-001600-MR
10-05-2012
MARK BRADFORD APPELLANT v. FIA CARD SERVICES, N.A. APPELLEE
BRIEF FOR APPELLANT: Mark Bradford, pro se Bowling Green, Kentucky NO BRIEF FILED FOR APPELLEE
NOT TO BE PUBLISHED
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE STEVE ALAN WILSON, JUDGE
ACTION NO. 09-CI-02135
OPINION
AFFIRMING
BEFORE: DIXON, MAZE AND MOORE, JUDGES. MOORE, JUDGE: Mark Bradford appeals from a Warren Circuit Court order denying his motion made pursuant to CR 60.02, and a subsequent order denying his motions to reconsider and to amend findings of fact. After a review of the record, we affirm.
Kentucky Rule of Civil Procedure.
I. FACTUAL AND PROCEDURAL BACKGROUND
On December 16, 2009, FIA Card Services, N.A. filed a complaint in Warren Circuit Court, alleging that Bradford was in default for failing to make payments on a Bank of America Card issued by FIA. FIA demanded judgment in the amount of $7,086.12, plus court costs. Bradford filed an answer in which he admitted that he owed the credit card debt. He raised the affirmative equitable defense that the federal government had wrongfully frozen his financial assets, while providing federal bailout funds to FIA.
FIA filed a motion for summary judgment on May 14, 2010. Bradford did not file a response. The trial court granted FIA's motion on June 7, 2010. On June 30, 2010, Bradford filed a motion for relief pursuant to CR 60.02, which the trial court denied on September 8, 2010. Bradford filed a motion to reconsider as well as a CR 52.02 motion for specific findings. The motions were denied, and this appeal followed.
II. STANDARD OF REVIEW
"[T]he determination to grant relief from a judgment or order pursuant to CR 60.02 is one that is generally left to the sound discretion of the trial court[.]" Schott v. Citizens Fidelity Bank and Trust Co., 692 S.W.2d 810, 814 (Ky.App. 1985). "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).U.S. Bank, NA v. Hasty, 232 S.W.3d 536, 540 (Ky.App. 2007).
III. ANALYSIS
Bradford argues that he has a valid claim under CR 60.02(a) on grounds of "mistake, inadvertence, surprise or excusable neglect," because he has a meritorious defense. Specifically, he contends that FIA offered no proof to rebut his contention that he is entitled to equitable relief because his financial assets have been frozen by the federal government, or that he is a major shareholder of Berkshire Hathaway, which holds a large stake in Bank of America, FIA's parent company. He stresses that summary judgment should not be rendered unless "it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor." Papa John's Int'l., Inc. v. McCoy, 244 S.W.3d 44, 50 (Ky. 2008).
But "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." Steelvest, Inc. v. Scansteel Serv. Ctr., Inc. 807 S.W.2d 476, 482 (Ky. 1991). "[O]ne of the chief factors guiding the granting of CR 60.02 relief is the moving party's ability to present his claim prior to the entry of the order sought to be set aside." U.S. Bank, NA, 232 S.W.3d at 541-542 (internal citation omitted). Over five months elapsed between the filing of FIA's complaint and the entry of the summary judgment. This period constituted more than adequate time for Bradford to present at least some affirmative evidence to support his claims that his funds have been frozen by the federal government and that he is a Berkshire Hathaway shareholder.
Moreover, these claims are extraneous to the basic legal determination that he failed to pay his credit card bill. Bradford cannot point to any affirmative evidence that he is not obligated to make the payment under the terms of the cardholder agreement he entered into with FIA.
The curtain must fall at some time upon the right of a litigant to make a showing that a genuine issue as to a material fact does exist. If this were not so, there could never be a summary judgment since "hope springs eternal in the human breast." The hope or bare belief, like [the non-movant's], that something will "turn up," cannot be made basis for showing that a genuine issue as to a material fact exists.Neal v. Welker, 426 S.W.2d 476, 479-80 (Ky. 1968) (citation omitted).
Bradford also argues that the court should afford him relief from the credit card contract on the grounds of fraud, real hardship, oppression, unconscionable results, and other grounds of righteousness, justice and morality. Bradford's unsupported allegations do not justify rescinding the contract.
Next, Bradford argues that he was entitled to relief on the grounds of surprise and excusable neglect because he was unaware that FIA had filed a summary judgment motion; he does not believe that he was served with a copy. The certificate of service attached to FIA's motion for summary judgment certifies that a copy of the motion was served by United States Mail on Bradford, at the same address that appears on his appellate brief. Bradford further claims that when he received the circuit court order granting summary judgment, he erroneously thought that it had been entered in another credit card action to which he is a party. Bradford explains that his law license was suspended over twenty-five years ago for mental incompetence and that he no longer has a good working knowledge of legal rules and procedures. Nonetheless, "[w]hile pro se litigants are sometimes held to less stringent standards than lawyers in drafting formal pleadings, . . . Kentucky courts still require pro se litigants to follow the Kentucky Rules of Civil Procedure." Watkins v. Fannin, 278 S.W.3d 637, 643 (Ky.App. 2009). In any event, even if Bradford had responded to the motion for summary judgment in a timely fashion, the outcome would have been the same as he has failed to meet his burden of providing some affirmative evidence that a genuine issue of material fact exists.
Finally, Bradford argues that because of an absence of findings, it cannot be determined whether the trial court abused its discretion in granting the summary judgment. He relies on Rasnick v. Rasnick, 982 S.W.2d 218 (Ky.App. 1998), in which this Court vacated an order denying CR 60.02 relief and remanded the case for findings regarding the amount of child support awarded by the trial court. Rasnick, 982 S.W.2d at 222. Rasnick is distinguishable, however, because the trial court is statutorily required to make findings when it deviates from the child support guidelines. There is no such requirement in this case. "An appellate court need not defer to the trial court's decision on summary judgment and will review the issue de novo because only legal questions and no factual findings are involved." Hallahan v. The Courier-Journal, 138 S.W.3d 699, 705 (Ky.App. 2004). We find no abuse of discretion in the trial court's denial of Bradford's motion for additional findings.
Accordingly, the orders denying Bradford's CR 60.02 motion, his motion to reconsider and his motion to amend findings of fact are affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Mark Bradford, pro se
Bowling Green, Kentucky
NO BRIEF FILED FOR APPELLEE