RENDERED: NOVEMBER 12, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1149-MR
CHARLES ROGER WRIGHT APPELLANT
APPEAL FROM FLOYD CIRCUIT COURT
v. HONORABLE THOMAS SMITH, JUDGE
ACTION NO. 16-CI-00223
MAXINE MUSIC; DEVIN WALKER;
GEORGE MUSIC; AND LORERY
WALKER APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND JONES, JUDGES.
DIXON, JUDGE: Charles Roger Wright appeals from the order of the Floyd
Circuit Court granting summary judgment, entered on August 11, 2020. After
careful review of the briefs, the record, and the law, we affirm.
FACTS AND PROCEDURAL BACKGROUND
This case involved a complicated land dispute; however, the issues on
appeal are quite simple and straightforward. Accordingly, our truncated recitation
reflects only the most relevant facts and procedural background.
On April 7, 2016, Wright petitioned the trial court to reform his deed
obtained following the purchase of real property from Maxine Music, Devin
Walker, and Lorery Walker.1 Wright alleged that George Music, acting as an agent
on behalf of Maxine, misrepresented the boundaries of the property contained in
the deed. After Wright discovered other parties claimed an interest in the land he
intended to purchase, the matter was brought before the Floyd Circuit Court in
Civil Action No. 05-CI-00979. In that case, the court ruled in favor of the other
parties. Even so, Wright filed the instant action requesting relief.
The case herein was set for trial to begin on June 17, 2019. In the trial
order, discovery was to close by May 17, 2019, and all pretrial motions were to be
filed no later than June 11, 2019. On April 16, 2019, George and Maxine moved
the court for summary judgment. After the matter was briefed and a hearing held,
the court granted summary judgment because Wright failed to meet his burden of
producing any evidence that there exists a genuine issue of material fact in this
1
The Walkers were served via a warning order attorney in the action below but have neither
answered nor entered an appearance.
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case. The court further noted that Wright’s claims were also time-barred2 and
barred under the principle of res judicata.
STANDARD OF REVIEW
Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, stipulations, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” CR3 56.03. An
appellate court’s role in reviewing a summary judgment is to determine whether
the trial court erred in finding no genuine issue of material fact exists and the
moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916
S.W.2d 779, 781 (Ky. App. 1996). A grant of summary judgment is reviewed de
novo because factual findings are not at issue. Pinkston v. Audubon Area Cmty.
Servs., Inc., 210 S.W.3d 188, 189 (Ky. App. 2006) (citing Blevins v. Moran, 12
S.W.3d 698 (Ky. App. 2000)).
2
Wright does not challenge or contest this issue on appeal. Failure to present an argument on
appeal constitutes abandonment and/or waiver of said issue. “An appellant’s failure to discuss
particular errors in his brief is the same as if no brief at all had been filed on those issues.” Milby
v. Mears, 580 S.W.2d 724, 727 (Ky. App. 1979) (citation omitted).
3
Kentucky Rules of Civil Procedure.
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ANALYSIS
On appeal, Wright asserts the trial court improperly granted summary
judgment because of the existence of genuine issues of material fact, despite his
failure to identify any such issues. Instead, he asserts that he “was prepared to
introduce location evidence and evidence from individuals who had knowledge of
the property lines but was denied that opportunity.” Wright has failed to specify
what evidence or how he was denied an opportunity to present it. He filed a
responsive brief to the motion for summary judgment, and a hearing was held on
the matter. Either or both of those instances were opportunities for Wright to
introduce evidence relevant to his claims.
We will not search the record to construct Wright’s arguments for
him, nor will we go on a fishing expedition to find support for his underdeveloped
arguments. “Even when briefs have been filed, a reviewing court will generally
confine itself to errors pointed out in the briefs and will not search the record for
errors.” Milby, 580 S.W.2d at 727.
Further, it is well-established that “summary judgment is only proper
after a party has been given ample opportunity to complete discovery, and then
fails to offer controverting evidence.” Pendleton Bros. Vending, Inc. v.
Commonwealth Fin. & Admin. Cabinet, 758 S.W.2d 24, 29 (Ky. 1988) (emphasis
added) (citing Hartford Ins. Grp. v. Citizens Fidelity Bank & Trust Co., 579
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S.W.2d 628 (Ky. App. 1979)). Yet, it is “not necessary to show that the
respondent has actually completed discovery, but only that respondent has had an
opportunity to do so.” Hartford, 579 S.W.2d at 630.
In Hartford, a period of approximately six months between the filing
of the complaint and the grant of summary judgment was found to be sufficient
time to conduct discovery. However, this is not a bright-line rule, and the
appropriate time for discovery necessarily varies from case to case depending on
the complexity, availability of information sought, and the like. See Suter v.
Mazyck, 226 S.W.3d 837, 842 (Ky. App. 2007), as modified (Jul. 13, 2007).
Here, more than four years elapsed between the filing of the complaint
and the grant of summary judgment. This is not an overly-complicated case, nor
has it been alleged that any information sought has been withheld. A trial date was
assigned, and summary judgment was granted well over a year after the trial was
scheduled to begin. Furthermore, Wright fails to identify what discovery had not
yet been accomplished. Thus, we cannot say the trial court’s grant of summary
judgment was premature.
Wright also asserts the trial court’s application of the principle of res
judicata to this case was erroneous. Although we are inclined to disagree with
Wright, we need not further address this issue as Wright failed to clear the initial
hurdle of presenting any affirmative evidence of existence of a genuine issue of
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material fact that would preclude a grant of summary judgment. Accordingly, the
trial court acted within its authority in dismissing this action.
CONCLUSION
Therefore, and for the foregoing reasons, the orders of the Floyd
Circuit Court are AFFIRMED.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
James P. Pruitt, Jr. Larry D. Brown
Pikeville, Kentucky Prestonsburg, Kentucky
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