Whitehead v. Brummett
Decision Date | 09 April 2021 |
Docket Number | NO. 2020-CA-0866-MR,2020-CA-0866-MR |
Parties | JAMES WHITEHEAD AND ANGELICA SALAS HOWARD, doing business as Moonbow Properties APPELLANTS v. CARL T. BRUMMETT APPELLEE |
Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM WHITLEY CIRCUIT COURT
In 1977, Edgar and Maudie Sammons conveyed approximately three acres of land in Whitley County ("the parent tract") to Keith, Norma, and Dennis Patrick ("the Patricks"). A surveyor was hired to measure the parent tract and prepare a plat that divided the tract into several lots for the purpose of development. It is unclear from the record before us whether the plat was ever recorded. The plat does not contain any restrictions and it does not appear, from the record before us, that a deed of restrictions was ever filed. However, in 1981, the Patricks conveyed two parcels to Carl and Relda Brummett. Both deeds contained the following restrictive covenant:
Brummett did not participate further in the proceedings.
Moonbow Properties filed a motion to alter, amend, or vacate the circuit court's order dismissing their complaint, which was denied. This appeal followed.
We first note that Brummett failed to file an appellee brief with this Court. When a responsive brief has not been filed, the Court may: (i) accept the appellant's statement of the facts and issues as correct; (ii) reverse the judgment if appellant's brief reasonably appears to sustain such action; or (iii) regard the appellee's failure as a confession of error and reverse the judgment without considering the merits of the case. CR 76.12(8)(c). "The decision as to how to proceed in imposing such penalties is a matter committed to our discretion." Cabinet for Health and Family Services v. Loving Care, Inc., 590 S.W.3d 824, 826 (Ky. App. 2019) (quoting Roberts v. Bucci, 218 S.W.3d 395, 396 (Ky. App. 2007)). Here, after careful review of the record, we have determined that Moonbow Properties' brief reasonably appears to warrant reversal of the circuit court's ruling regarding the issue of standing.4
"The standard of review on appeal of a summary judgment is whether the circuit judge correctly found that there were no issues as to any material fact and that the moving party was entitled to a judgment as a matter of law." Pearsonex rel. Trent v. Nat'l Feeding Systems, Inc., 90 S.W.3d 46, 49 (Ky. 2002). Summary judgment is only proper when "it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Black v. Birner, 179 S.W.3d 873, 877 (Ky. App. 2005). Our review regarding the issue of standing is limited "to a determination of whether the matters alleged in the complaint establish [Moonbow Properties'] standing to bring the action or whether it is without a 'substantial interest' in the subject matter of the controversy." City of Louisville v. Stock Yards Bank & Trust Co., 843 S.W.2d 327, 328 (Ky. 1992). We agree with Moonbow Properties that it has standing.
The record before us demonstrates that the restrictive covenant contained in the Brummets' deed, which states that it runs with the land, was meant to benefit the land, not the Patricks alone as grantors. "A declaration in the conveying instrument that restrictive covenants are to run with the land is a significant factor in determining that the grantor intended the restriction to benefit the land and not just his personal interests." KL & JL Investments, Inc. v. Lynch, 472 S.W.3d 540, 546 (Ky. App. 2015) ( ). The language contained in Brummetts' deed is unambiguous—the covenant was intended to run with the land.
Moonbow Properties submitted evidence of a plat prepared prior to division of the parent tract. However, numerous questions...
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