RENDERED: APRIL 28, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2022-CA-0931-MR
SHELIA D. THOMPSON APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE CHARLES L. CUNNINGHAM, JR., JUDGE ACTION NO. 21-CI-004996
AMAZON HOME WARRANTY OF KENTUCKY, LLC APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, KAREM, AND TAYLOR, JUDGES.
KAREM, JUDGE: Shelia D. Thompson (“Thompson”) appeals from the Jefferson
Circuit Court’s order granting Amazon Home Warranty of Kentucky, LLC’s
(“Amazon”) motion for summary judgment and awarding Thompson a $1,500
judgment. Thompson also appeals from the circuit court’s order denying her
motion to reconsider. Finding no error, we affirm. FACTUAL AND PROCEDURAL BACKGROUND
This case concerns a disagreement over a home warranty agreement
(the “Agreement”) entered into between Thompson and Amazon in 2019. The
Agreement stated that Amazon would cover the costs to repair or replace covered
systems outlined in the Agreement, such as the water heater, heating system, or
refrigerator, if any such items became inoperable due to mechanical failure caused
by normal wear and tear. Additionally, Section X of the Agreement stated that
Thompson would limit any recovery to $1,500 and waive “consequential,
incidental, indirect, secondary, or punitive damages.” Finally, the Agreement
stated that the parties would resolve all disputes under the Agreement through
mandatory arbitration and waive any rights to a jury trial.
In December 2019, Thompson’s heating system stopped working
correctly, so she alerted Amazon of the issues. Amazon assigned a contractor to
address Thompson’s request, who told Thompson that she would need a new
furnace. In January 2020, Thompson again requested service from Amazon for the
same issue. This time, Thompson selected the service technician, as allowed by
the Agreement. This technician also advised Thompson that she needed a new
furnace, as the technician discovered a heat exchanger crack.
Thompson ultimately replaced the furnace for $3,305 and filed a
claim with Amazon for coverage under the Agreement for the furnace replacement
-2- cost. However, Amazon denied coverage under the Agreement, which expressly
excluded coverage for cracked heat exchangers. Specifically, under Section V,
Paragraph B of the Agreement, Amazon listed “cracked heat exchangers” as one of
the items not covered. Section VI, Paragraph N also listed “cracked heat
exchangers” as one of the items not covered.
On March 29, 2021, Amazon made an offer of judgment of $1,500
under Kentucky Rule of Civil Procedure (“CR”) 68. Thompson rejected the offer
and demanded payment for the total price of the new furnace she had purchased.
Thereafter, on August 30, 2021, Thompson sued Amazon in Jefferson
Circuit Court, alleging breach of contract, fraud, misrepresentation, and violation
of the Kentucky Consumer Protection Act (the “Act”) concerning Amazon’s denial
of Thompson’s claims for her furnace. On April 4, 2022, Amazon moved for
summary judgment based on the Agreement’s plain language. In the alternative,
Amazon argued Section X of the Agreement limited its liability to a maximum of
$1,500. Thompson filed a countermotion for summary judgment.
The circuit court entered an order on June 3, 2022, granting Amazon’s
motion and awarding Thompson $1,500 in damages. Additionally, the circuit
court awarded Thompson $5.00 for attorney fees under Kentucky Revised Statute
(“KRS”) 453.060(1)(b). Thompson filed a motion to reconsider with the circuit
court, which it denied. This appeal followed.
-3- We will discuss further facts as they become relevant.
ANALYSIS
a. Standard of Review
“The . . . purpose of . . . summary judgment is to terminate litigation
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.” Roberson v. Lampton, 516 S.W.2d 838, 840 (Ky. 1974). A court should
only grant summary judgment “where the movant shows that the adverse party
could not prevail under any circumstances.” Paintsville Hosp. Co. v. Rose, 683
S.W.2d 255, 256 (Ky. 1985) (citation omitted).
An appellate court reviews the granting of a summary judgment to
determine “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) (citation
omitted). In making this determination, “[t]he record must be viewed in a light
most favorable to the party opposing the motion for summary judgment and all
doubts are to be resolved in his favor.” Steelvest, Inc. v. Scansteel Service Center,
Inc., 807 S.W.2d 476, 480 (Ky. 1991) (citations omitted). Because factual findings
are not at issue, an appellate court reviews the decision de novo. Scifres, 916
S.W.2d at 781 (citation omitted).
-4- b. Discussion
As a preliminary matter, Amazon has moved this Court to strike
portions of Thompson’s brief, and the motion was passed to this panel on the
merits. Thompson criticizes two “cut and paste” sections contained in the
“Conclusion” portion of Thompson’s brief purporting to show Amazon’s online
business ratings from Forbes and the Better Business Bureau.
Amazon’s online business ratings are information that is outside of the
record on appeal in violation of CR 76.12(4)(c)(vii) (now RAP 32(E)(1)(c)). “CR
76.12(4)(c)(vii) clearly provides that ‘materials and documents not included in the
record shall not be introduced or used as exhibits in support of briefs.’” Godman v.
City of Fort Wright, 234 S.W.3d 362, 367 (Ky. App. 2007). As such, we grant
Amazon’s motion to strike the offending portions of Thompson’s brief by separate
order. We have disregarded these materials in our consideration of this appeal.
Thompson first argues on appeal that a party moving for summary
judgment “cannot move for summary judgment against itself and still receive a
grant of summary judgment in its favor.” However, Amazon was not necessarily
requesting a judgment “against itself,” but was requesting that the circuit court find
that the parties had a binding agreement and that the maximum payment limit
under such agreement was $1,500. As previously discussed, we review a circuit
court’s grant of summary judgment to determine whether there were any genuine
-5- issues of material fact and whether Amazon was entitled to judgment as a matter of
law. We can do so in this case and do not see the way in which Amazon requested
the summary judgment to have impeded or otherwise affected our review.
Thompson also argues that issues of material fact remained as to
whether the only mechanism for the failure of a heat exchanger is through cracking
or corrosion. However, we agree with the circuit court that Thompson failed to
present any evidence of a genuine issue of material fact regarding this issue. While
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RENDERED: APRIL 28, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2022-CA-0931-MR
SHELIA D. THOMPSON APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE CHARLES L. CUNNINGHAM, JR., JUDGE ACTION NO. 21-CI-004996
AMAZON HOME WARRANTY OF KENTUCKY, LLC APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, KAREM, AND TAYLOR, JUDGES.
KAREM, JUDGE: Shelia D. Thompson (“Thompson”) appeals from the Jefferson
Circuit Court’s order granting Amazon Home Warranty of Kentucky, LLC’s
(“Amazon”) motion for summary judgment and awarding Thompson a $1,500
judgment. Thompson also appeals from the circuit court’s order denying her
motion to reconsider. Finding no error, we affirm. FACTUAL AND PROCEDURAL BACKGROUND
This case concerns a disagreement over a home warranty agreement
(the “Agreement”) entered into between Thompson and Amazon in 2019. The
Agreement stated that Amazon would cover the costs to repair or replace covered
systems outlined in the Agreement, such as the water heater, heating system, or
refrigerator, if any such items became inoperable due to mechanical failure caused
by normal wear and tear. Additionally, Section X of the Agreement stated that
Thompson would limit any recovery to $1,500 and waive “consequential,
incidental, indirect, secondary, or punitive damages.” Finally, the Agreement
stated that the parties would resolve all disputes under the Agreement through
mandatory arbitration and waive any rights to a jury trial.
In December 2019, Thompson’s heating system stopped working
correctly, so she alerted Amazon of the issues. Amazon assigned a contractor to
address Thompson’s request, who told Thompson that she would need a new
furnace. In January 2020, Thompson again requested service from Amazon for the
same issue. This time, Thompson selected the service technician, as allowed by
the Agreement. This technician also advised Thompson that she needed a new
furnace, as the technician discovered a heat exchanger crack.
Thompson ultimately replaced the furnace for $3,305 and filed a
claim with Amazon for coverage under the Agreement for the furnace replacement
-2- cost. However, Amazon denied coverage under the Agreement, which expressly
excluded coverage for cracked heat exchangers. Specifically, under Section V,
Paragraph B of the Agreement, Amazon listed “cracked heat exchangers” as one of
the items not covered. Section VI, Paragraph N also listed “cracked heat
exchangers” as one of the items not covered.
On March 29, 2021, Amazon made an offer of judgment of $1,500
under Kentucky Rule of Civil Procedure (“CR”) 68. Thompson rejected the offer
and demanded payment for the total price of the new furnace she had purchased.
Thereafter, on August 30, 2021, Thompson sued Amazon in Jefferson
Circuit Court, alleging breach of contract, fraud, misrepresentation, and violation
of the Kentucky Consumer Protection Act (the “Act”) concerning Amazon’s denial
of Thompson’s claims for her furnace. On April 4, 2022, Amazon moved for
summary judgment based on the Agreement’s plain language. In the alternative,
Amazon argued Section X of the Agreement limited its liability to a maximum of
$1,500. Thompson filed a countermotion for summary judgment.
The circuit court entered an order on June 3, 2022, granting Amazon’s
motion and awarding Thompson $1,500 in damages. Additionally, the circuit
court awarded Thompson $5.00 for attorney fees under Kentucky Revised Statute
(“KRS”) 453.060(1)(b). Thompson filed a motion to reconsider with the circuit
court, which it denied. This appeal followed.
-3- We will discuss further facts as they become relevant.
ANALYSIS
a. Standard of Review
“The . . . purpose of . . . summary judgment is to terminate litigation
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.” Roberson v. Lampton, 516 S.W.2d 838, 840 (Ky. 1974). A court should
only grant summary judgment “where the movant shows that the adverse party
could not prevail under any circumstances.” Paintsville Hosp. Co. v. Rose, 683
S.W.2d 255, 256 (Ky. 1985) (citation omitted).
An appellate court reviews the granting of a summary judgment to
determine “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) (citation
omitted). In making this determination, “[t]he record must be viewed in a light
most favorable to the party opposing the motion for summary judgment and all
doubts are to be resolved in his favor.” Steelvest, Inc. v. Scansteel Service Center,
Inc., 807 S.W.2d 476, 480 (Ky. 1991) (citations omitted). Because factual findings
are not at issue, an appellate court reviews the decision de novo. Scifres, 916
S.W.2d at 781 (citation omitted).
-4- b. Discussion
As a preliminary matter, Amazon has moved this Court to strike
portions of Thompson’s brief, and the motion was passed to this panel on the
merits. Thompson criticizes two “cut and paste” sections contained in the
“Conclusion” portion of Thompson’s brief purporting to show Amazon’s online
business ratings from Forbes and the Better Business Bureau.
Amazon’s online business ratings are information that is outside of the
record on appeal in violation of CR 76.12(4)(c)(vii) (now RAP 32(E)(1)(c)). “CR
76.12(4)(c)(vii) clearly provides that ‘materials and documents not included in the
record shall not be introduced or used as exhibits in support of briefs.’” Godman v.
City of Fort Wright, 234 S.W.3d 362, 367 (Ky. App. 2007). As such, we grant
Amazon’s motion to strike the offending portions of Thompson’s brief by separate
order. We have disregarded these materials in our consideration of this appeal.
Thompson first argues on appeal that a party moving for summary
judgment “cannot move for summary judgment against itself and still receive a
grant of summary judgment in its favor.” However, Amazon was not necessarily
requesting a judgment “against itself,” but was requesting that the circuit court find
that the parties had a binding agreement and that the maximum payment limit
under such agreement was $1,500. As previously discussed, we review a circuit
court’s grant of summary judgment to determine whether there were any genuine
-5- issues of material fact and whether Amazon was entitled to judgment as a matter of
law. We can do so in this case and do not see the way in which Amazon requested
the summary judgment to have impeded or otherwise affected our review.
Thompson also argues that issues of material fact remained as to
whether the only mechanism for the failure of a heat exchanger is through cracking
or corrosion. However, we agree with the circuit court that Thompson failed to
present any evidence of a genuine issue of material fact regarding this issue. While
Thompson states that there is no other failure mechanism for a heat exchanger, she
provides no citation or other evidence upon which this Court can rely to find
evidence of a genuine issue of material fact.
Additionally, the fact remains that the Agreement’s plain language
capped Amazon’s liability at $1,500. Indeed, “[w]hen no ambiguity exists in the
contract, we look only as far as the four corners of the document to determine the
parties’ intentions.” 3D Enterprises Contracting Corp. v. Louisville and Jefferson
County Metropolitan Sewer Dist., 174 S.W.3d 440, 448 (Ky. 2005) (citation
omitted). “The fact that one party may have intended different results, however, is
insufficient to construe a contract at variance with its plain and unambiguous
terms.” Cantrell Supply, Inc. v. Liberty Mut. Ins. Co., 94 S.W.3d 381, 385 (Ky.
App. 2002). Thus, we conclude that the circuit court correctly determined that the
extent of Amazon’s liability was $1,500 under the Agreement’s plain terms.
-6- Thompson additionally argues that Amazon has, essentially, conceded
liability on the other two counts alleged in her complaint – fraud,
misrepresentation, and violation of the Act – by requesting a summary judgment
against itself. Thus, she asserts that a trial is necessary to determine the extent of
Amazon’s liability to her under the Act. Thompson further argues that the Act
gives broad protection and entitles her to an award of both punitive damages and
attorney’s fees.
In this case, however, Thompson has failed to prove anything other
than her confusion regarding the warranty she purchased. The Act states, “[u]nfair,
false, misleading, or deceptive acts or practices in the conduct of any trade or
commerce are hereby declared unlawful.” KRS 367.170(1). However, the
exclusion of cracked, corroded, or rusted heat exchangers is not fraudulent,
misleading, or deceptive because the Agreement clearly stated what was and was
not covered. Kentucky’s highest Court has stated, “one who signs a contract is
presumed to know its contents[.]” Clark v. Brewer, 329 S.W.2d 384, 387 (Ky.
1959). Moreover, if that party “has an opportunity to read the contract which he
signs he is bound by its provisions, unless he is misled as to the nature of the
writing which he signs or his signature has been obtained by fraud.” Id. Because
Thompson has presented no evidence that Amazon attempted to conceal the
-7- applicable clauses in the Agreement, deceive or mislead her, or fraudulently induce
her to sign the agreement, we affirm the circuit court.
CONCLUSION
For the foregoing reasons, we affirm the Jefferson Circuit Court’s
order.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Juliana N. Madaki Franklin Yudkin Louisville, Kentucky Louisville, Kentucky
-8-