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Summary Judgment Upheld for Retailer Where Pro Se Claimant Provided No Notice of Claim Prior to Filing Suit


In Hub v. Kroger, Civil Action No. 2007-CA-000240 (Ky. App., Mar. 21, 2008) (“Not To Be Published”) the Kentucky Court of Appeals (“Court”) affirmed the circuit court’s decision granting summary judgment for Kroger. The circuit court, held that Hub, a pro se litigant, did not provide the required notice pursuant to KRS 139.771 to Kroger before filing suit to collect allegedly overcharged sales tax on certain food items containing flour, such as donuts, Kit-Kat bars, bridge mix, caramel cremes, yogurt pretzels and malted milk balls. Hub also sought punitive damages against Kroger.

The Court first observed that it had adequately addressed the exact issue involved less than two years ago in the review of an action Hub had filed against Kroger. The Court then reviewed KRS 139.771, which provides that a cause of action does not accrue against a retailer who has overcharged sales tax until a purchaser first provides notice of the claim to the retailer. The retailer then has 60 days to respond to the notice of the claim. The Court stated that the purpose behind the statutory notice requirement was to afford the parties an opportunity to settle their dispute and therefore, prevent many cases regarding claims of overcharging of sales tax from entering the court system. “By providing a retailer with notice of an apparent sales tax overcharge, a consumer allows the retailer an opportunity to remedy the situation. If the retailer ignores or refutes the overcharge once notice is given, then a cause of action accrues . . . .”

Here, the Court noted that Hub had erroneously assumed that the prior suit where Kroger was granted summary judgment constituted adequate notice of future suits he might bring. However, the Court disagreed, and held that Hub was required to give Kroger notice of any of the overcharges complained of prior to filing an action in court.

The Court concluded: “[a]s Hub has again not complied with the obvious and unambiguous statutory requirements necessary to bring a civil action in this situation, summary judgment was properly granted.” Hub has filed a Motion For Discretionary Review with the Supreme Court of Kentucky requesting that the Court’s decision be reversed.

If you have questions about this topic or any other legal issue, please contact any member of the firm's State and Local Tax Team.

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