Wimberly v. Park Cmty. Credit Union

DAVID KEITH WIMBERLY APPELLANT v. PARK COMMUNITY CREDIT UNION, INC. APPELLEE

NO. 2019-CA-0730-MR

Commonwealth of Kentucky Court of Appeals

OCTOBER 23, 2020

NOT TO BE PUBLISHED

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE AUDRA J. ECKERLE, JUDGE

ACTION NO. 17-CI-402375

OPINION

AFFIRMING

** ** ** ** **

BEFORE: CLAYTON, CHIEF JUDGE; KRAMER AND MCNEILL, JUDGES.

KRAMER, JUDGE: David Keith Wimberly appeals an order of the Jefferson Circuit Court granting summary judgment to Park Community Credit Union, Inc. ("Park") in a foreclosure action against real property Wimberly recently inherited from his deceased mother. Upon careful review, we affirm.

Wimberly's mother executed a promissory note dated June 9, 2003, secured by a mortgage on the real property at issue herein. The note was for a term of fifteen (15) years, with the final payment due in June 2018. Ms. Wimberly died in February 2017. The real property at issue was left to Wimberly under the provisions of her last will and testament. The last mortgage payment that was made to Park was in July 2017. Park filed the foreclosure action on the subject property on December 27, 2017.¹ Email correspondence between Park and Wimberly's attorney shows that, in February 2018, Wimberly was advised he could pay $5,601.00 to Park to halt the foreclosure. At the same time, he was advised that he must also complete an application to assume the debt on the loan. In the alternative, Wimberly was instructed that he could pay $8,228.12 through February 15, 2018, to pay off the loan entirely; but after that date, additional legal fees would accrue.

On or about February 12, 2018, Wimberly sent a check for $5,601.00 to Park, but he did not complete the application to assume the remainder of the debt. Park applied $2,500.00 of that amount towards legal fees and $3,101.00 to payment arrearages on the loan (seven months at $443.00 per month). The record before us shows that in April 2018, there was additional correspondence between Park and Wimberly's attorney. Park pointed out that Wimberly did not submit anapplication to reinstate the loan and assume the debt and that no additional payments had been made since February 2018. Park also stated that additional legal fees had accrued. Park emphasized that if Wimberly still wished to assume the debt, he needed to make monthly payments for March and April 2018 in the amount of $886.00 and submit the required application. Wimberly mailed a check for $84.00 to Park on or about April 18, 2018. He again failed to submit the application to assume the debt, and no further payments have been made.

Park motioned the circuit court for summary judgment and an award of attorney's fees. In response, Wimberly filed objections. He also motioned the circuit court to compel Park to release the mortgage and to dismiss himself from the action. The Master Commissioner conducted a hearing in November 2018 and filed a report with the circuit court in February 2019. Wimberly filed exceptions to the report. The circuit court entered an order granting summary judgment to Park, overruling Wimberly's objections, and denying his motions to reinstate the mortgage and to dismiss him from the case. On May 2, 2019, the circuit court entered a judgment and order of sale of the property.² This appeal followed.

Wimberly makes four arguments on appeal: (1) Park failed to properly apply his payments to the principal and interest as required by Kentucky law; (2) KRS 411.195 is inapplicable to him; (3) Park cannot prove a debtobligation for attorney's fees; and (4) Wimberly paid the mortgage debt in full, which cured the default on the loan, and, therefore, no further attorney's fees could be pursued.

At the outset, we note that Wimberly's brief is noncompliant in two substantive ways. In contravention of CR³ 76.12(4)(c)(v), he does not have a preservation statement at the beginning of each argument. While his first argument contains three citations to the record, these citations in no way demonstrate where his arguments are preserved. His remaining arguments contain no citations to the record whatsoever. CR 76.12(4)(c)(iv) and (v) require ample references to the record and citation to authority supporting each argument. It is not the responsibility of this Court to search the record to find support for Wimberly's contentions, assuming it exists. Smith v. Smith, 235 S.W.3d 1, 5 (Ky. App. 2006).

The Court recently addressed these issues in Curty v. Norton Healthcare, Inc., 561 S.W.3d 374 (Ky. App. 2018). Given the length at which the Court in Curty urged compliance with CR 76.12(4)(c), we quote the rationale for the rule and the Court's warnings that leniency should not be presumed.

CR 76.12(4)(c)[(v)] in providing that an appellate brief's contents must contain at the beginning of each argument a reference to the record showing whether the issue was preserved for review and in what manneremphasizes the importance of the firmly established rule that the trial court should first be given the opportunity to rule on questions before they are available for appellate review. It is only to avert a manifest injustice that this court will entertain an argument not presented to the trial court. (citations omitted).

Elwell v. Stone, 799 S.W.2d 46, 48 (Ky. App. 1990) (quoting Massie v. Persson, 729 S.W.2d 448, 452 (Ky. App. 1987)). We require a statement of preservation:

so that we, the reviewing Court, can be confident the issue was properly presented to the trial court and therefore, is appropriate for our consideration. It also has a bearing on whether we employ the recognized standard of review, or in the case of an unpreserved error, whether palpable error review is being requested and may be granted.

Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012).

. . .

Failing to comply with the civil rules is an unnecessary risk the appellate advocate should not chance. Compliance with CR 76.12 is mandatory. See Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010). Although noncompliance with CR 76.12 is not automatically fatal, we would be well within our discretion to strike Curty's brief or dismiss her appeal for her attorney's failure to comply. Elwell. While we have chosen not to impose such a harsh sanction, we strongly suggest counsel familiarize himself with the rules of appellate practice and caution counsel such latitude may not be extended in the future.

Curty, 561 S.W.3d at 377-78 (emphasis added).

Two years have passed since the Curty opinion, and the brief deficiencies have not greatly declined. In June of this year, our Court noted as follows:

This Court is weary of the need to render opinions such as this one, necessitated as they are by the failure of appellate advocates to follow rules of appellate advocacy. In just the last two years, at least one hundred and one (101) Kentucky appellate opinions were rendered in which an attorney's carelessness made appellate rule violations an issue in his or her client's case. The prodigious number of attorneys appearing in Kentucky's appellate courts lacking the skill, will, or interest in following procedural rules is growing. In 2005, only two (2) Kentucky opinions addressed appellate rules violations. In 2010, the number jumped to eleven (11). In 2015, the number rose slightly to fourteen (14). The average for the last two years is more than three times that. If this is not a crisis yet, it soon will be if trends do not reverse.

We will not reiterate all that has been said too many times before on this subject. If a lawyer is curious about the importance of these procedural rules or the practical reasons for following them, we recommend reading these opinions in chronological order: Commonwealth v. Roth, 567 S.W.3d 591 (Ky. 2019); Koester v. Koester, 569 S.W.3d 412 (Ky. App. 2019); Hallis v. Hallis, 328 S.W.3d 694 (Ky. App. 2010); Elwell v. Stone, 799 S.W.2d 46 (Ky. App. 1990).

Clark v. Workman, 604 S.W.3d 616, 616-18 (Ky. App. 2020).

Our options when an appellate advocate fails to abide by the rules are: (1) to ignore the deficiency and proceed with the review; (2) to strike the brief orits offending portions, CR 76.12(8)(a); or (3) to review the issues raised in the brief for manifest injustice only. Hallis, 328 S.W.3d at 696 (citing Elwell, 799 S.W.2d at 47). We note that Wimberly's attorney has received at least one prior warning from this Court regarding non-compliance with CR 76.12. He represented Charles and Lori Nunn, appellants in a foreclosure action, on appeal. At that time, the presiding judge of the current panel ruled that

[p]ursuant to CR 76.12(4)(c)(iii) and (v), the Nunns were required to raise all issues by supporting their contentions of error with arguments, which are to be supported by ample citations to case law and the record. Here, the Nunns have not made any arguments regarding the three remaining "issues." Because the remaining portion of the Nunns' brief does not comply with the requirements of CR 76.12(4)(c)(iii) and (v), we will not consider them.

Nunn v. Federal National Mortgage Association, No. 2019-CA-000054-MR, 2019 WL 6650520, at *4 (Ky. App. Dec. 6, 2019).

As the caselaw has made perfectly clear, we would be well within our discretion in the present case to strike Wimberly's brief as a sanction for failure to comply with CR 76.12. But, the difficulty in this case (and others) is that clients are the ones who are sanctioned by striking the brief and dismissing the appeal. On the other hand, as examined supra, the Court is continually in the position of reminding attorneys about deficiencies in briefs and stating that counsel may not be so lucky the proverbial "next time." Here, counsel has been cautioned previously about appellate rule compliance, and we believe we have reached theproverbial next time. Given only because the record is not substantially voluminous, we will engage in a review of the matter to determine whether any manifest injustice exists, as to not too severely sanction Appellant for the failings...