La Vielle v. Seay

Decision Date14 October 1966
PartiesW. R. R. LA VIELLE et al., Appellants, v. Robert J. SEAY, Trustee et al., Appellees.
CourtUnited States State Supreme Court — District of Kentucky

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 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 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.

As to the plaintiffs' so-called 'Motion for Findings of Facts and Conclusions of Law and to dismiss defendants' answer as failing to constitute a defense,' quite another matter is presented. The action of the trial court in purporting to sustain this plea by the plaintiffs was erroneous if the pleadings raised any issue of material fact.

Our review of the defendants' answer discloses that material issues of fact were raised by it particularly when we keep in mind, as we must, that our current method of procedure is one of notice pleading as contrasted with fact pleading.

The defendants' answer clearly gave notice to the adverse party and to the trial court that they were not only contending that the restrictive covenants themselves were unenforceable against this particular use, but that by reason of factual occurrences the plaintiffs were prevented by the doctrine of waiver and abandonment from enforcing these restrictions against the defendants' proposed project.

While it has been recognized that the basic principles applicable to summary judgment procedure generally apply to actions for injunctive relief, it is also true that summary judgment, which the trial court undertook to grant in this case, has been described as a drastic remedy. It is also generally recognized that injunction is an extraordinary remedy which will not be granted except upon a clear showing of an existing equitable right. Thus, we are confronted in the instant case with an instance of the exercise of extraordinary relief in the form of a permanent injunction by a drastic remedy in the form of summary judgment. See Moore's Federal Practice, Sec. 56.17(30) p. 2558; Barron & Holtzoff's Federal Practice and Procedure, Vol. 3, Sec. 1232.3, p. 116; Oscar Ewing, Inc. v. Melton, Ky., 309 S.W.2d 760; and Conley v. Hall, Ky., 395 S.W.2d 575.

We are persuaded that a permanent injunction should be granted by means of summary judgment only in those cases where the showing is very clear and convincing and that in such case as we are confronted with here, to afford relief by means of a permanent injunction where the actual question to be determined is whether or not a judgment on the pleadings should be granted and where as here the pleadings under the notice theory of pleading particularly raised factual issues, the determination to grant a permanent injunction must be...

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  • Davis v. Huey
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    • Texas Supreme Court
    • July 22, 1981
    ...v. 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, 2......
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    ...which 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 evidenc......
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    ...141 (Court 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, In order to reverse and render the trial court's judgment based upon the jury verdict, there must be a complet......
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    ...structures 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 gover......
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