Fraysur v. McAlpin
| Decision Date | 12 September 2014 |
| Docket Number | NO. 2013-CA-000963-DG,2013-CA-000963-DG |
| Court | Kentucky Court of Appeals |
| Parties | MARGARET FRAYSUR APPELLANT v. GREG MCALPIN APPELLEE |
NOT TO BE PUBLISHED
ON DISCRETIONARY REVIEW FROM MONTGOMERY CIRCUIT COURT
Having carefully reviewed the record and the parties' respective arguments, we reverse the circuit court's opinion affirming the district court's judgment.
Our review of this case is somewhat hampered by an incomplete record as the circuit court clerk did not certify the record in a previous district court action as requested. However, both parties have included their respective versions of the factual and procedural background in their appellate briefs, which they both state is not supported in the record. We shall rely upon these recitations as we set forth the background of this case.
Margaret Fraysur is in her 80s and is the grandmother of Greg McAlpin. In 2004, Fraysur purchased a home at 227 Shelton Way in Mt. Sterling, Kentucky, for $117,000.00, and she obtained a loan to pay for the property. In March 2012, she and McAlpin discussed her estate plans, and Fraysur agreed to transfer the Shelton Way property to him for $80,000. At that time, Fraysur stated that the property had an assessed value of $120,000.00. McAlpin stated that Fraysur signed a gift letter acknowledging that she gave a gift of $55,000.00 to him representing the equity in the property. Fraysur disputes that she did so. McAlpin took over responsibility for the payments remaining on the promissory note. They agreed that Fraysur would have the right to live in the home for the rest of her life, and she was to pay $700.00 to McAlpin in monthly rent to cover the mortgagepayment, taxes, and insurance.1 Fraysur stated that she faithfully paid him this amount.
In early October 2012, McAlpin gave Fraysur thirty days' notice to vacate the premises. McAlpin indicated that he "had a number of concerns about the home and its residents over the course of the month to month lease." However, he continued to accept her rental payments in October, November, and December 2012. McAlpin filed the first of two forcible detainer actions against Fraysur in Montgomery District Court on December 26, 2012 (civil action 12-C-00694).2 After initially granting the forcible detainer after a hearing on January 3, 2013, the district court vacated the order on Fraysur's motion on February 7, 2013, after a hearing that day, noting that McAlpin had not amended his original complaint to show a change in circumstances and citing Daily v. Kelly, 200 S.W.2d 114 (Ky. 1946). Referring to the January 3, 2013, proceedings, the court's February 7, 2013, order stated that The district court then stated that any filing fee would be waived if McAlpin chose to refile the matter and that if McAlpin brought this complaint back for a hearing and Fraysur had received three days' notice, the matter would be set for February 15, 2013, to permit more time tohear arguments from counsel. Counsel for Fraysur disputes that the February 15, 2013, hearing date was discussed at the February 7, 2013, hearing. As we noted above, the record does not contain any record from the first forcible detainer action.
McAlpin filed his second forcible detainer complaint against Fraysur on February 8, 2013 (civil action 13-C-00064). In the complaint, McAlpin stated that he and Fraysur had entered into an oral, month-to-month lease for the subject property on March 28, 2012, that Fraysur had agreed to pay $700.00 per month in rent. He stated that Fraysur had breached the lease by failing to pay rent for the months of January and February 2013. McAlpin stated that the oral lease was terminated on January 3, 2013, and that he gave Fraysur written notice to vacate that day. By order entered the same day, the district court noted its previous order in the first forcible detainer action that it had waived the filing fee for the new case and that Fraysur had received the required thirty days' written notice for the filing of the second action. The court set a hearing date of February 15, 2013. Fraysur was served with notice of the eviction hearing on February 11, 2013, by posting it in a conspicuous place on her premises and by regular mail through the U.S. Postal Service.
In her answer filed February 14, 2013, Fraysur raised the affirmative defenses of accord and satisfaction, waiver, estoppel, and laches. She also denied that the lease was originally an oral lease and stated that her rent obligation had been satisfied through payments into the Montgomery County District CourtClerk's office. She also requested a jury trial in the answer. The same day, Fraysur filed a motion for continuance and again requested a jury trial. She stated that her attorney had a jury trial scheduled for the following day and would not be available for the hearing on McAlpin's complaint. Also on February 14, 2013, McAlpin filed a motion for summary judgment, arguing that it was undisputed that he was the owner of the property; that the parties had an oral agreement for a month-to-month lease; that Fraysur failed to pay rent for the month of January; that he tendered a notice of eviction to her on January 3, 2013; and that Fraysur had refused to give him possession of the premises. Based upon these facts, McAlpin argued that no genuine issues of material fact remained for a jury to consider and that he was entitled to summary judgment as a matter of law. McAlpin noticed the motion to be heard on February 21, 2013.
The district court proceeded with the hearing on February 15, 2013.3 After denying Fraysur's motion to continue and set a jury trial, the district court granted McAlpin's motion for summary judgment, entered a forcible detainer, and ordered Fraysur to vacate the premises in seven days. These rulings were set forth in a docket order entered February 15, 2013, in which the court noted that a written order would be entered. On February 20, 2013, the district court entered a judgment for forcible detainer, again noting that a separate, written order would be entered. On March 1, 2013, the district court entered the last order, which provided as follows:
1. As the Court set this mater [sic] for today's hearing in its previous Order of February 7, 2013, the Defendant's Motion for a Continuance and to set a Jury Trial is DENIED.
2. The Court finds that all parties stipulated that the Plaintiff, Greg McAlpin, is the lawful owner of the property which gives rise to the forcible detainer herein.
3. The Court ruled in its February 7 2013 [sic] Order that the Plaintiff gave a written thirty (30) day notice to Defendant on January 3, 2013, thus satisfying the requirement of notice to vacate the premises.
4. The Plaintiff's Motion for Summary Judgment filed herein is GRANTED. A warrant of possession shall be issued, with the Defendant to have seven (7) days to vacate the premises. However, due to an appeal being filed any warrant of possession shall be held in abeyance.
Fraysur timely appealed the district court's rulings to the Montgomery Circuit Court.
In her Statement of Appeal, Fraysur argued that the district court erred in failing to grant her motion for a continuance and set the matter for a jury trial pursuant to Kentucky Rules of Civil Procedure (CR) 38.02. She also argued that summary judgment was not appropriate because she had not received ten days' notice pursuant to CR 56.03. The motion was served six days before the noticed hearing date of February 21, 2013. Furthermore, the motion was presented in court on February 15, 2013, and she was not provided with an opportunity to respond. Fraysur also argued that she was denied the opportunity to present any evidence and that jurisdiction was inappropriate in the district court because the matter involved an agreement beyond that of mere landlord and tenant. Further filings inthe record establish that Fraysur continued to tender her rental payments into the court each month.
In his Counterstatement of Appeal, McAlpin argued that Fraysur's request for a jury trial was not timely made, citing Kentucky Revised Statutes (KRS) 383.210(2), which requires three days' notice for execution of a warrant, not ten days as in CR 38.02. He also pointed out that neither Fraysur nor her counsel ever objected to the February 15, 2013, trial date during previous court proceedings, but rather waited until the day before the scheduled hearing date to do so. Regarding the motion for summary judgment, McAlpin stated that the motion was not technically necessary because all parties were on notice that the trial would take place on February 15, 2013, that the district court had knowledge of the case due to the previous action, and that based upon the record and prior sworn statements of the parties it determined that McAlpin was entitled to a forcible detainer and warrant of possession. Regarding jurisdiction, McAlpin stated that the district court has jurisdiction to hear an eviction case, noting that this was a simple forcible detainer matter for which he was entitled to a judgment as the rightful owner.
On May 1, 2013, the circuit court entered an order affirming the district court's rulings. The circuit court...
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