RENDERED: JUNE 20, 2014; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2013-CA-001339-MR PAUL BROWN APPELLANT APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE ANGELA MCCORMICK BISIG, JUDGE ACTION NO. 12-CI-005475 KIELY, HINES & ASSOCIATES INSURANCE AGENCY, INC. APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: MAZE, MOORE, AND VANMETER, JUDGES. MOORE, JUDGE: Paul Brown appeals the Jefferson Circuit Court s opinion and order granting Kiely, Hines & Associates Insurance Agency, Inc. s ( KHA ) motion for summary judgment dismissing Brown s claims of breach of contract and fraudulent inducement. After careful review of the record, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND Paul Brown began his employment with KHA in November 2004, and was terminated from his employment on July 18, 2011. Brown filed his complaint against KHA in October 2012 alleging breach of contract and fraudulent inducement. Brown contends that he entered into a written employment contract with KHA in order to transition from a full salary position to a commission based sales position in April 2011. He claims the contract was to begin on May 1, 2011 and end in April 2014. In support of his complaint, Brown submitted a Producer Agreement as record of the employment contract. However, Brown s name or signature do not appear anywhere within the Producer Agreement, and the dates on the agreement do not coincide with Brown s alleged term of employment. On the last page of the Producer Agreement, it refers to KHA Philip Brun Producer Agreement July 2005. Additionally, the document does not make reference to any specific term of employment. KHA filed a motion for judgment on the pleadings and for summary judgment in May 2013 stating there were no genuine issues of material fact in this case as Brown has failed to present any evidence in support of his claims. In Brown s response to the motion, he submitted a document titled Addendum to Paul Brown s Contract. The Addendum is dated April 18, 2011, and indicates a transition of Brown s duties to that of a full time agent with a -2-
commission structure outlined through April 2014. The Addendum is signed by Brown and James A. Bohn from KHA. The last sentence of the Addendum appearing just before the signatures reads: If Paul Brown is no longer employed by Kiely Hines for any reason, the unpaid balance on the draw will be repaid to Kiely Hines, at the time of separation. In addition to the Addendum, Brown also submitted an affidavit with his response stating that the Addendum is the employment contract with KHA in this matter, and it was for a term of two years. Brown also asserted with his response that summary judgment was not appropriate because discovery had not been completed. KHA filed a reply to Brown s response to the motion for summary judgment in which it submitted an Employment Agreement between KHA and Brown signed and witnessed by the parties on November 18, 2004. This Employment Agreement clearly states in Section 3: The Employee acknowledges that his or her relationship with the Corporation is that of employer and employee. Employment is at will. The Jefferson Circuit Court found that summary judgment was appropriate in this case because the Employment Agreement signed by the parties on November 18, 2004 plainly stated the employment was at will. Furthermore, the Addendum provided by Brown did not modify this employment contract or Brown s status as an at-will employee. It also failed to specify a new, definite term of employment. The trial court found the Producer Agreement provided by Brown to be immaterial as to establish a term of Brown s employment because it had no -3-
relation to Brown. The trial court also found that Brown had adequate opportunity to complete discovery because his complaint was filed in October 2012 and KHA s motion for summary judgment was not filed until May 2013. Brown had approximately seven months to make discovery requests, but failed to do so. In accordance with these findings, the trial court granted KHA s motion for summary judgment. Brown now appeals. II. STANDARD OF REVIEW The standard of review on appeal of a 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) (citing CR 1 56.03). Because summary judgment involves only legal questions and the existence of any disputed material issues of fact, an appellate court need not defer to the trial court's decision and will review the issue de novo. Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001). This Court must view the record in a light most favorable to the party opposing the motion, and all doubts are to be resolved in his favor. Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary judgment is proper 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. 1 Kentucky Rules of Civil Procedure. -4-
As a part of our review, this Court also must consider whether the trial court gave the party opposing the motion an ample opportunity to respond and complete discovery before the court entered its ruling. Blankenship v. Collier, 302 S.W.3d 665, 668 (Ky. 2010). However, the trial court's determination that a sufficient time was given will not be disturbed absent an abuse of discretion. Id. III. ANALYSIS Brown makes two arguments on appeal. First, he claims the trial court erred in dismissing his breach of contract claim. And secondly, Brown argues the trial court erred by not permitting discovery. For the reasons stated below, we disagree with both of these contentions. Brown first asserts the employment contract that was allegedly breached by KHA is the Addendum to Paul Brown s Contract dated April 18, 2011, because it satisfies all of the requirements of a valid contract, including offer and acceptance, full and complete terms, consideration, and signatures of the parties evidencing an intention to be bound. He contends the trial court erred when it asserted that there was no contract between the parties. We pause to clarify that Brown is incorrect in his assertion that the trial court found that there was no contract between the parties. In fact, the trial court determined the Employment Agreement from November 2004 signed by Brown and a KHA representative to be the contract establishing that Brown s employment was at will, not for a specific length of time. Moreover, the trial court also found that the Addendum, which Brown claimed in his response to KHA s -5-
motion for summary judgment to be the employment contract for a term of two years, did not modify Brown s status as an at-will employee evidenced in the Employment Agreement. The trial court did, however, find that there was no material question regarding the Producer Agreement as establishing a valid contract between the parties. The Producer Agreement was the initial documentation provided by Brown as an exhibit attached to his complaint in support of his breach of contract claim. We turn now to Brown s claim that KHA breached his employment contract. Generally, in the absence of a specific contractual provision to the contrary, employment in Kentucky is terminable at-will, meaning that an employer may ordinarily discharge an employee for good cause, for no cause, or for a cause that some might view as morally indefensible. Miracle v. Bell County Emergency Med. Servs., 237 S.W.3d 555, 558 (Ky. App. 2007). A fundamental rule of contract interpretation is that a contract must be read as a whole, giving effect to all parts. City of Louisa v. Newland, 705 S.W.2d 916, 919 (Ky. 1986). The duration of an employment contract must be determined by the circumstances of each particular case, depending upon the understanding of the parties as ascertained by inference from their written or oral negotiations and agreements, the usage of business, the situation and objectives of the parties, the nature of the employment, and all circumstances surrounding the transaction. Shah v. American Synthetic Rubber Corp., 655 S.W.2d 489, 490 (Ky. 1983). -6-
All of the documentation provided to the court, including the Employment Agreement, the Addendum to Paul Brown s Contract, Brown s affidavit, and the Producer Agreement all fail to establish a genuine issue of material fact as to Brown s breach of contract claim. The Employment Agreement Brown signed explicitly states that his employment was at will. Moreover, the Addendum does not modify Brown s at-will employee status. The contents of the Addendum do not specify a definite term of employment, and the document also clearly provides for compensation arrangements in the case that Brown was no longer employed by KHA prior to the expiration of the timeline of the commission structure outlined within. Additionally, the Producer Agreement fails to provide any term of employment as well as it does not demonstrate any relation to Brown or his employment at KHA. Therefore, the trial court did not err when it granted summary judgment in favor of KHA in regard to the breach of contract claim. Next, Brown argues that the grant of summary judgment was premature and inappropriate because the trial court erred by not allowing discovery. Summary judgment is proper only after the party opposing the motion has been given ample opportunity to complete discovery and then fails to offer controverting evidence. Suter v. Mazyck, 226 S.W.3d 837, 841 (Ky. App. 2007). There is no requirement that discovery be completed, only that the non-moving party have had an opportunity to do so. Hartford Ins. Group v. Citizens Fidelity Bank & Trust Co., 579 S.W.2d 628, 630 (Ky. App. 1979). -7-
Brown responded to KHA s interrogatories and request for production of documents; however, he conducted no discovery of his own. The record demonstrates that at no time did Brown attempt discovery or was he ever denied the opportunity to do so by the trial court. He filed his complaint in October 2012, and KHA filed its motion for summary judgment in May 2013. Brown had approximately seven months in which to pursue discovery requests, yet he did nothing to advance the evidence of his case during this time. Accordingly, we cannot conclude that summary judgment was granted prematurely because Brown had sufficient opportunity to develop his case and conduct discovery. -8-
IV. CONCLUSION is AFFIRMED. For these reasons, the opinion and order of the Jefferson Circuit Court ALL CONCUR. BRIEF FOR APPELLANT: Kurt A. Scharfenberger Louisville, Kentucky BRIEF FOR APPELLEE: Armand I. Judah Louisville, Kentucky -9-