Service Financial Co. v. Ware

473 S.W.3d 98, 2015 Ky. App. LEXIS 110, 2015 WL 4571712
CourtCourt of Appeals of Kentucky
DecidedJuly 24, 2015
DocketNO. 2013-CA-002121-DG
StatusPublished
Cited by10 cases

This text of 473 S.W.3d 98 (Service Financial Co. v. Ware) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Service Financial Co. v. Ware, 473 S.W.3d 98, 2015 Ky. App. LEXIS 110, 2015 WL 4571712 (Ky. Ct. App. 2015).

Opinion

OPINION

ACREE, CHIEF JUDGE:

We granted discretionary review in this case to address Service Financial Company’s appeal of the Franklin Circuit Court’s November 22, 2013 opinion affirming a Franklin District Court order of default judgment that limited post-judgment interest on a retail installment contract to 12% per annum. The Appellant briefed the issues; the Appellee did not file a brief. On April 10, 2015, for reasons stated hereinafter, the Court rendered an opinion affirming the trial court.

PETITION FOR REHEARING

Before proceeding to address the issues properly before us, we note and will address the fact that, on April 30, 2015, the Appellant filed a petition for rehearing pursuant to Kentucky Rule of Civil Procedure (CR) 76.32. That rule states, in pertinent part:

Except in extraordinary cases when justice demands it, a petition for rehearing shall be limited to a consideration of the issues argued on the appeal and will be granted only when it appears that the court has overlooked a material fact in the record, or a controlling statute or decision, or has misconceived the issues presented on the appeal or the law applicable thereto.

CR 76.32(l)(b).

Claiming this Court overlooked a material fact in the record, Appellant asserts that a provision of the retail installment contract is decisive of this case in its favor. Appellant’s petition states:

In Section 7 of the “Additional Terms and Conditions” of the Retail Installment Contract Ms. Ware signed, it ex[101]*101plicitly states “In the event the Seller obtains a judgment against the Buyer,, or any one or more of them, said judgment shall bear, interest at the same Annual Percentage Rate, as stated on the front side hereof [15%][1].”

Appellant quotes this passage from “Exhibit ‘2’”. appended to the petition, although there is no citation to the certified record in the body of the petition or on the exhibit. After careful consideration, we conclude this paragraph presents a different issue than that presented to this Court in the Appellant’s original brief.

As more fully explained below, the issue presented by this case is whether the Ap-pellee agreed to pay the accrual of interest at the rate of 15% or a finance charge not considered interest under Chapter 190 of the Kentucky Revised Statutes (KRS) addressing retail installment sales of motor vehicles. Appellant is correct that we did not address the impact of Section 7 of the contract on our analysis. Had we been aware of this language, the analysis (even if not the outcome) likely would have been different.

Concerned that this Court had, in fact, overlooked a material fact in the record, we directed our attention to Appellant’s two-page “Exhibit ‘2’ ” attached to the petition. It is a copy of the front and back of the pre-printed Retail Installment Contract.

The copy of the front page is reasonably legible in its essential terms, including the bold and large-print section stating “ANNUAL PERCENTAGE RATE The cost of your credit as a yearly rate 15%.” A highlighted provision on the front page incorporates by reference additional terms printed on the back of the form contract. The Appellee’s signature appears at the bottom of this front page.

The'back page is in a.font size and type that is largely illegible, at least on the copy attached as “Exhibit ‘2’ ” to the petition.2 Despite its degrée of illegibility, we took for granted that Appellant accurately quoted that language from' its own exhibit.

Still, two important questions remained. First, did the certified record include this second page of pre-printed boilerplate terms typical of such adhesion contracts? Second, was this one of the issues argued on the appeal; that is, had Appellant previously made this argument' in its original brief to this Court by citing this language as it did in the ■ petition for rehearing?

The record is smaller than most and that allowed us to scour it for a copy of this second page of the contract.3 We found it four times in the record. The first is at page 16 and it is attached to a memorandum of law. The second is at page 25, attached to the district court complaint. The third is at page 45, attached to the Statement of' Appeal in the circuit court. Immediately thereafter, at page 46, the page appears for a fourth time. The fact that this final copy of the page is enlarged to improve its legibility is revealing.

Having assured ourselves that the Appellant’s petition for rehearing did not reference matters outside the certified record, we moved on to see how the Appellant addressed that provision in the original brief on appeal. We readily saw that the [102]*102legal import of “Section 7 of the ‘Additional Terms .and Conditions' of the Retail Installment Contract” was not one “of the issues argued on the appeal[.]”

Carefully reading the body of the Appellant’s brief again, we see that a total of eleven pages of the record are cited. They are pages 35 through 42 and pages 56 through 58. Neither the contract provision relied upon in the petition for rehearing, nor the page on which it appears, can be found among those pages.

However, Appellant did include, an appendix to the brief. A copy of both front and back of the Retail Installment Contract-is appended as Exhibit 5. And, in compliance with CR 76.12(4)(d)(v), there is a listing of these exhibits. The listing, indicates that Exhibit 5 was taken from pages 44, 45, and 46 of the record. But the exhibit itself is only two pages. Because' it is not marked with the circuit court clerk’s page numbering, we cannot tell whether the Exhibit is actually taken from pages 15-16, or pages 24-25, or pages 44-45 of the certified record.4 Despite its specific reference in the appendix listing, the enlarged and more legible copy of the back page of the contract appearing in the record at page 46 is not included in Exhibit 5. More importantly, .neither the back page of the contract generally, nor Section 7 specifically, is ever referenced in the original brief.

The heart of the problem is that Appellant never argued, in its initial brief before this Court, that this single sentence, quoted above-from the petition and nestled as it was among-the 82 lines of boilerplate on the back of the form contract, controlled this issue. Rather, the briefs only reference to the basis of the Appellee’s liability is the “contractually agreed interest rate of 15.000%[.]”5 That figure appears on the first page in bold type to assure its conspicuousness. That argument — whether by signing a retail installment contract Appellee agreed to pay' 15% interest on her unpaid balance — is what this Court addressed in its opinion.

This case thus determines whether that figure on the first page of the retail installment contract represents an agreed-upon interest rate or simply “The cost of your credit as a yearly rate”6 under KRS Chapter 190. All of ’ that analysis, ‘presented below, is necessarily prefatory to the new issue raised in the petition for rehearing. That new issue Is this: notwithstanding our conclusion that Appellee agreed to pay a finance charge as defined by KRS 190.090

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473 S.W.3d 98, 2015 Ky. App. LEXIS 110, 2015 WL 4571712, Counsel Stack Legal Research, https://law.counselstack.com/opinion/service-financial-co-v-ware-kyctapp-2015.