GEORGE KONSTANTINIDIS v. RONALD RELIFORD; TTC ILLINOIS, LLC; AND MID-STAR CONSTRUCTION, INC.
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RENDERED:
OCTOBER 20, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000913-MR
GEORGE KONSTANTINIDIS
APPELLANT
APPEAL FROM BOONE CIRCUIT COURT
HONORABLE JOSEPH F. BAMBERGER, JUDGE
ACTION NO. 03-CI-00516
v.
RONALD RELIFORD;
TTC ILLINOIS, LLC;
AND MID-STAR CONSTRUCTION, INC.
APPELLEES
OPINION AND ORDER
1. AFFIRMING;
2. GRANTING MOTION TO STRIKE
** ** ** ** **
BEFORE:
BARBER AND VANMETER, JUDGES; EMBERTON,1 SENIOR JUDGE.
BARBER, JUDGE:
Appellant, George Konstantinidis, appeals the
Boone Circuit Court’s summary judgment order dismissing his
action against Appellee, Ronald Reliford.
1
Konstantinidis’
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
action was a tort claim for alleged injuries sustained in an
automobile accident.
Following a review of the record, we
affirm.
Reliford filed a motion to strike Konstantinidis’
appellate brief for failure to adhere to CR 76.12(4).2
After the
motion to strike was filed, Konstantinidis did file a motion for
additional time to correct his brief.
However, this motion was
denied by our court on March 20, 2006.
As such, we are left
only with his original appellate brief to review.
Konstantinidis’ brief is essentially a two-page letter
written by a friend on his behalf discussing, in large part, the
discovery procedure at the trial level.
His brief is
insufficient in many ways: (1) he failed to follow the basic
format of appellate briefs (CR 76.12(4)(a)); (2) he did not have
any of the specific content requirements (CR 76.12(4)(c)); (3)
he made no references to the record (CR 76.12(4)(c)(iv) and
(v)); and (4) he failed to cite any legal authority for his
position (CR 76.12(4)(c)(iii) and (v)).
While we are sympathetic to Konstantinidis’ plight in
trying to appeal pro se, it would be improper for us to allow a
brief with such severe deficiencies to remain.
For the
foregoing reasons, the motion to strike is granted.
2
Reliford also requests that the appendix to Konstantinidis’ brief be
stricken arguing that our court denied Konstantinidis’ request to supplement
the record with the documents per order entered December 1, 2005.
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Even though we have stricken Konstantinidis’ brief, we
will still review the circuit court’s summary judgment order to
determine if it was proper.
Background
On May 17, 2001, Konstantinidis was operating
construction equipment on a bridge on I-275 in Boone County
Kentucky.
bucket.
Specifically, he was working in a “cherry-picker”
Reliford was driving his automobile on the same stretch
of interstate.
Konstantinidis lowered his bucket into a driving
lane and was struck by Reliford.
Konstantinidis later filed
suit on April 14, 2003, alleging that Reliford was negligent and
that he sustained permanent injuries as well as an inability to
work.
Konstantinidis’ first attorney, Joseph M. Schulte,
withdrew November 4, 2004.
Hatfield.
He was replaced by Curtis H.
During the time Mr. Hatfield represented
Konstantinidis, the trial court entered a pre-trial order
December 3, 2004.
The order required the parties to file trial
briefs, proposed jury instructions, and witness lists by March
15, 2005 as well as to exchange copies of all exhibits to be
used at trial no later than the morning of trial.
The order
also set a trial date of April 13, 2005.
Mr. Hatfield then withdrew on January 4, 2005.
The
following month, Kenneth E. Rylee, Jr., entered his entry of
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appearance on behalf of Konstantinidis.
order was entered on March 18, 2005.3
A second pre-trial
This order allowed the
parties until March 25, 2005, to file their trial brief,
proposed jury instructions, and witness list.
In addition, the
order again restated that the parties were to exchange copies of
all exhibits to be used at trial no later than the morning of
trial.
Mr. Rylee was then permitted to withdraw as counsel on
March 25, 2005.4
Reliford subsequently filed his motion for
summary judgment April 6, 2005.
response.
Konstantinidis filed no
A hearing was held on the motion April 13, 2005.5
Konstantinidis was unrepresented at this hearing and still had
not complied with the court’s pre-trial orders.
The trial court sanctioned Konstantinidis for his noncompliance with its orders by not allowing him to call “any
witnesses other than himself” and restricted him in introducing
“proof of medical expenses or special damages.”
This hindered
Konstantinidis’ ability to prove his case.
3
A pre-trial conference was held March 15, 2005, pursuant to first pre-trial
order. Konstantinidis had filed nothing to comply with the first pre-trial
order at the time of the pre-trial conference while Reliford had complied
with all applicable deadlines.
4
Mr. Rylee had filed a motion to continue the jury trial, but it was not
granted.
5
The trial court moved the jury trial to April 14, 2005 to accommodate the
motion.
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In light of this ruling, the court then concluded it
would be impossible for him to introduce any proof that would
remove him from the abrogation of tort liability pursuant to the
Kentucky Motor Vehicle Reparation Act (Act), KRS 304.39060(2)(b).
his case.
Therefore, it granted summary judgment and dismissed
Konstantinidis now appeals to our court.
Standard of Review
Summary judgment should only be used to terminate
litigation when, as a matter or 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.
Jefferson County Fiscal Court v. Peerce, 132 S.W.3d 824, 832
(Ky. 2004), (citing Steelvest, Inc. v. Scansteel Service Center,
Inc., 807 S.W.2d 476, 483 (Ky. 1991)).
Summary judgment is to
be cautiously applied and should not be used as a substitute for
trial.
Id.
Legal Authority and Analysis
We first note that Konstantinidis did not receive ten
days notice of the hearing on Reliford’s summary judgment motion
as required by CR 56.03.
The ten-day requirement may be waived
absent a showing of prejudice.
Equitable Coal Sales, Inc. v.
Duncan Machinery Movers, 649 S.W.2d 415, 416 (Ky.App. 1983).
In
the instant case, Konstantinidis did not file a response to the
summary judgment motion, did not object to the hearing date, did
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not request a continuance, and argued against the motion on the
day of the hearing.
The hearing date of April 13, 2005 was well
past the date the parties were to comply with the second pretrial order, i.e. March 25, 2005.
Thus, we do not believe
Konstantinidis was prejudiced by the trial court’s waiving of
the ten-day notice requirement.
We turn to the court’s
sanctions.
Parties are bound by a pre-trial order and its terms
may not be contradicted.
492 (Ky. 1962).
Sapp v. Massey, 358 S.W.2d 490, 491-
A court has a right to sanction a party for
failure to comply with its order.
We shall not review whether
the trial court’s sanctions were appropriate because that issue
is not properly before us.6
What we shall focus on is whether
Konstantinidis’ action should have survived summary judgment in
light of the court imposed sanctions.7
The Act8 has threshold requirements pursuant to KRS
304.39-060(2)(b), which state, in part:
6
Even though Konstantinidis’ brief was stricken, we note that this issue was
not addressed in Reliford’s brief. An issue not discussed in the briefs will
not be reviewed by the appellate courts. White v. Rainbo Baking Co., 765
S.W.2d 26, 30 (Ky.App. 1988), (citing Milby v. Mears, 580 S.W.2d 724 (Ky.App.
1979)).
7
Konstantinidis appealed the summary judgment order and his appellate brief
was stricken. As such, we are extremely limited in our review.
8
The statute of limitation for a claim under the Act is two years. KRS
304.39-230. The statute of limitation for a personal injury claim is one
year. KRS 413.140(1)(a). Konstantinidis’ suit was filed nearly twenty-three
months after the accident. Hence, it was filed pursuant to the Act or it
would have been time-barred.
-6-
In any action of tort brought against the
owner . . . of a motor vehicle with respect to
which security has been provided as required in
this subtitle, . . ., a plaintiff may recover
damages in tort for pain, suffering, mental
anguish and inconvenience because of bodily
injury, sickness or disease arising out of
the . . . operation or use of such motor vehicle
only in the event that the benefits which are
payable for such injury as “medical expense” or
which would be payable but for any exclusion or
deductible authorized by this subtitle exceed one
thousand dollars ($1,000), or the
injury . . . consists in whole or in part of
permanent disfigurement, a fracture to a bone, a
compound, comminuted, displaced or compressed
fracture, loss of a body member, permanent injury
within reasonable medical probability, permanent
loss of bodily function or death. (Emphasis
added.)
In other words, given the threshold requirements of KRS 304.39060(2)(b), an individual must introduce evidence of a permanent
disfigurement, permanent injury, bone fracture, loss of a body
member, permanent loss of bodily function, or death or evidence
that his medical expenses exceeded $1,000.00 in order to pursue
a tort action.
See Southard v. Hancock, 689 S.W.2d 616, 617
(Ky.App. 1985).
Konstantinidis did allege a permanent injury to his
right wrist.
However, the trial court’s sanctions prevented him
from having any person testify other than himself.
Konstantinidis was not qualified to testify on issues requiring
a medical opinion.
There also was no proof contained in the
record related to the other conditions listed in KRS 304.39-
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060(2)(b), such as permanent disfigurement or a broken bone.
We now examine the $1,000.00 threshold.
The trial court also sanctioned Konstantinidis by not
allowing him to introduce any of his medical expenses to support
his case.
As such, it would be impossible for him to provide
proof of medical expenses related to the accident in excess of
$1,000.00.
Effectively, the trial court’s sanctions made it
impossible for Konstantinidis to satisfy either of the threshold
requirements of KRS 304.39-060(2)(b).
Failure to meet the
threshold requirements of the Act means that Konstantinidis was
not able to pursue his tort action against Reliford.
It became
impossible for Konstantinidis to produce evidence at trial
warranting a judgment in his favor.
Hence, summary judgment was
appropriate.
Conclusion
The trial court’s sanctions rendered it impossible for
Konstantinidis to satisfy the threshold requirements of KRS
304.39-060(2)(b).
The threshold requirement had to be satisfied
before he could proceed with his claim against Reliford for
alleged injuries sustained in the automobile accident.
Konstantinidis no longer had a viable claim.
As such,
Therefore, we
affirm the Boone Circuit Court’s order granting summary judgment
to Reliford.
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ENTERED:
October 20, 2006__
/s/ David A. Barber____
JUDGE, COURT OF APPEALS
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
George Konstantinidis, Pro Se
Cincinnati, Ohio
Susanne M. Cetrulo
Edgewood, Kentucky
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