La Vielle v. Seay

CourtUnited States State Supreme Court (Kentucky)
Citation412 S.W.2d 587
Decision Date14 October 1966
PartiesW. R. R. LA VIELLE et al., Appellants, v. Robert J. SEAY, Trustee et al., Appellees.

Page 587

412 S.W.2d 587
W. R. R. LA VIELLE et al., Appellants,
v.
Robert J. SEAY, Trustee et al., Appellees.
Court of Appeals of Kentucky.
Oct. 14, 1966.
As Modified Sua Sponte March 31, 1967.

Page 589

Thomas C. Carroll, Louisville, for appellants.

Charles E. Keller, Louisville, for appellees.

SCOTT REED, Special Commissioner.

This is an appeal by the defendants in the trial court from a final judgment permanently enjoining them from erecting on their residential property a 64-foot tower to be used for domestic television reception and for 'ham' radio transmitting.

The appellees, who were the plaintiffs in the court below, instituted this action alleging that the defendants were acting in violation of certain restrictive covenants applicable to a subdivision and that the plaintiffs, as representatives of the original subdivider, sought enforcement by injunction of these restrictions.

The plaintiffs sought a restraining order without notice which was granted. The defendants then filed an answer and counterclaim. This pleading alleged that their proposed radio and TV tower was not covered by the restrictions relied upon by the plaintiffs; that the plaintiffs, by not enforcing the claimed restriction against like projects, had estopped themselves from the right to enforce such claimed restriction; that the proposed tower would be used in important civil defense work necessary to the national defense, and that the claimed restrictions should not be enforced as being violative of the public interest. As a matter of defensive pleading in the answer the defendants contended that the restraining order was wrongfully issued. The

Page 590

counterclaim consisted of a plea for damages for the wrongful issuance of the restraining order.

The plaintiffs, after filing a reply to the defendants' counterclaim, simultaneously filed a document styled 'Motions for Findings of Facts and Conclusions of Law.' The defendants filed a motion for summary judgment. Neither the plaintiffs' 'Motions for Findings of Facts and Conclusions of Law' nor the defendants' motion for summary judgment was accompanied by any evidentiary material. Apparently they were related to a pre-trial conference but the record is silent concerning testimony or stipulations made at the conference. It is fair to state that as a part of the plaintiffs' motion herein described, the first paragraph of it did move the court 'to dismiss the answer as failing to constitute a defense.'

Upon this state of the record, the trial court filed 'Findings of Fact and Conclusions of Law and Opinion.'

The trial court, in effect, found that the proposed tower did violate the restrictions; that the plaintiffs were not estopped to enforce the restrictive covenants and that plaintiffs were entitled to a permanent injunction prohibiting the erection of the proposed radio and TV tower 'until they have complied with the existing restrictions as they may appear of record or until further orders of a court of competent jurisdiction.'

After this disposition by the trial court the defendants tendered an amended answer which expanded upon their previous plea that the claimed restriction had been waived and abandoned by inaction on the part of the plaintiffs and by permitting like projects to be completed in the subdivision.

There appears to have been a battle of affidavits; on the one hand, the defendants claiming waiver and abandonment, and on the other hand, the plaintiffs claiming no abandonment of the restrictions, all going to specific conditions existing on various lots in the subdivision.

Then the plaintiffs, who had already received a favorable disposition from the trial court, filed a motion for summary judgment.

The trial court refused the tendered amended answer of the defendants and entered final judgment.

The record illustrates confusion as to the proper scope of summary judgment and we are confronted with the inescapable fact that at the time the trial court made its disposition of this action it had nothing but pleadings before it.

In this state of the record, we are of the opinion that the correct procedure is that if a motion for summary judgment is made by a defendant solely on the basis of the complaint, the motion is functionally equivalent to a motion to dismiss for failure to state a claim under CR 12.02(6), the complaint should be liberally construed in favor of the complainant, the facts alleged in the complaint must be taken as true, and the motion for summary judgment must be denied if a claim has been pleaded.

If the motion is made either by the claimant or by the defending party solely on the basis of the complaint, answer, and other pleading, if any, the motion is functionally equivalent to a motion for judgment on the pleadings under CR 12.03. The motion should be denied if, as against the moving party, the pleadings raise any issue of material fact. See Clay, CR 56.03, p. 165, and Clay, CR 12.03, p. 203; see also, Moore's Federal Practice, Sec. 56.11(2), pp. 2152, 2153.

Thus, at the time the trial court undertook to finally dispose of this case by operation of our procedural rules it actually had before it a defendants' motion to dismiss the complaint for failure to state a claim and plaintiffs' motion for judgment on the pleadings.

Our review of the complaint discloses that taking the facts alleged in it as

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true it properly stated a claim and that the action of the trial court in overruling defendants' wrongly denominated motion for summary judgment was proper.

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33 practice notes
  • Davis v. Huey, No. C-27
    • United States
    • Supreme Court of Texas
    • July 22, 1981
    ...Keeler, 220 Ga. 100, 137 S.E.2d 288, 290 (1964); McNamee v. Bishop Trust Co., Ltd., 616 P.2d 205, 211 (Hawaii 1980); La Vielle v. Seay, 412 S.W.2d 587, 593 (Ky.1966); Jones v. Northwest Real Estate Co., 149 Md. 271, 131 A. 446, 449 (Md.1925); Donoghue v. Prynnwood Corp., 356 Mass. 703, 255 ......
  • Aluminum Co. of America v. Kohutek, No. 524
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • March 26, 1970
    ...of App ., Louisiana 1962); Caullett v. Stanley Stilwell & Sons, Inc., 67 N.J.Super. 111, 170 A.2d 52 (1961); and La Vielle v. Seay, 412 S.W.2d 587 (Ct. of App. Kentucky, Page 803 In order to reverse and render the trial court's judgment based upon the jury verdict, there must be a compl......
  • Bellemeade Co. v. Priddle
    • United States
    • United States State Supreme Court (Kentucky)
    • September 28, 1973
    ...the parties had in view at the time of their creation.' Foos v. Engle, 295 Ky. 114, 174 S.W.2d 5 (1943). Also see LaVielle v. Seay, Ky., 412 S.W.2d 587 (1966). Those who contend that the restrictive covenants apply to Section V had the burden of showing by clear and convincing evidence that......
  • Black Horse Run Property Owners Association-Raleigh, Inc. v. Kaleel, ASSOCIATION--RALEIG
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • December 15, 1987
    ...other than single-family residences, private garages and other outbuildings necessary for single-family use); La Vielle v. Seay, 412 S.W.2d 587 (Ky.1966) (64-foot television reception and ham radio transmission tower is a "structure" for the purposes of restrictive covenant govern......
  • Request a trial to view additional results
33 cases
  • Davis v. Huey, No. C-27
    • United States
    • Supreme Court of Texas
    • July 22, 1981
    ...Keeler, 220 Ga. 100, 137 S.E.2d 288, 290 (1964); McNamee v. Bishop Trust Co., Ltd., 616 P.2d 205, 211 (Hawaii 1980); La Vielle v. Seay, 412 S.W.2d 587, 593 (Ky.1966); Jones v. Northwest Real Estate Co., 149 Md. 271, 131 A. 446, 449 (Md.1925); Donoghue v. Prynnwood Corp., 356 Mass. 703, 255 ......
  • Aluminum Co. of America v. Kohutek, No. 524
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • March 26, 1970
    ...of App ., Louisiana 1962); Caullett v. Stanley Stilwell & Sons, Inc., 67 N.J.Super. 111, 170 A.2d 52 (1961); and La Vielle v. Seay, 412 S.W.2d 587 (Ct. of App. Kentucky, Page 803 In order to reverse and render the trial court's judgment based upon the jury verdict, there must be a compl......
  • Bellemeade Co. v. Priddle
    • United States
    • United States State Supreme Court (Kentucky)
    • September 28, 1973
    ...the parties had in view at the time of their creation.' Foos v. Engle, 295 Ky. 114, 174 S.W.2d 5 (1943). Also see LaVielle v. Seay, Ky., 412 S.W.2d 587 (1966). Those who contend that the restrictive covenants apply to Section V had the burden of showing by clear and convincing evidence that......
  • Black Horse Run Property Owners Association-Raleigh, Inc. v. Kaleel, ASSOCIATION--RALEIG
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • December 15, 1987
    ...other than single-family residences, private garages and other outbuildings necessary for single-family use); La Vielle v. Seay, 412 S.W.2d 587 (Ky.1966) (64-foot television reception and ham radio transmission tower is a "structure" for the purposes of restrictive covenant govern......
  • Request a trial to view additional results

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