Opinion
NO. 2016-CA-001038-MR
02-09-2018
TIM SHAFFER AND LILLY SHAFFER, HIS WIFE; STEVE SHAFFER AND MARY FRANCIS SHAFFER, HIS WIFE; AND TIM SHAFFER, ADMINISTRATOR OF THE ESTATE OF GILBERT SHAFFER; AND ALINE SHAFFER APPELLANTS v. LITTLE SANDY COAL, INC.; EDGAR EVERMAN; DANEASE LAWSON AND THURSTON LAWSON, HER HUSBAND APPELLEES
BRIEFS FOR APPELLANTS: Robert W. Miller Grayson, Kentucky BRIEF FOR APPELLEES: William H. Wilhoit Grayson, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CARTER CIRCUIT COURT
HONORABLE ROBERT B. CONLEY, JUDGE
ACTION NO. 11-CI-00298 OPINION
AFFIRMING
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BEFORE: COMBS, JOHNSON, AND J. LAMBERT, JUDGES. LAMBERT, J., JUDGE: This is an appeal from a summary judgment granted in favor of a former landowner in a case alleging creation of false calls in a deed in the chain of title. The issue is whether the case was properly dismissed on statute of limitations grounds. We affirm.
The events leading up to this controversy can be traced back to 1978, when Little Sandy Coal, Inc. (solely owned by appellee Edgar Everman and administratively dissolved in 2009) purchased a tract of property in Carter County from Earl and Alice Black. In 1982, Walter and Virginia Phillips purchased a portion of the property from Little Sandy. At that time, Everman (a licensed surveyor) prepared the deed description. Danease and Thurston Lawson purchased the Phillipses' property in 1998. The Shaffers bought an adjoining piece of property (320 acres) in 2002 from Richard Pennington, and a dispute arose as to the boundary lines with the Lawsons' property. The Shaffers brought suit in 2011 against the Lawsons, Little Sandy, and Everman.
Everman represented himself in the defense of the lawsuit until April 2016, when he hired counsel. Counsel immediately amended Everman's answer to include the affirmative defense of statute of limitations, and a motion for summary judgment was filed to that effect. A hearing was held that same month, and in June 2016, the Carter Circuit Court granted summary judgment, dismissing Everman and Little Sandy as defendants in the Shaffers' suit.
The Shaffers make three arguments on appeal. They first contend that the circuit court erred in allowing Everman to amend his answer (over the Shaffers' strenuous objection) five years after the litigation commenced.
Kentucky Rule of Civil Procedure (CR) 15.01 provides the framework for addressing the issue:
A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 20 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be longer, unless the court otherwise orders.(Emphasis ours.) "Ultimately, whether a party may amend his complaint is discretionary with the circuit court, and we will not disturb its ruling unless it has abused its discretion." Kenney v. Hanger Prosthetics & Orthotics, Inc., 269 S.W.3d 866, 869-70 (Ky. App. 2007) (citing Lambert v. Franklin Real Estate Co., 37 S.W.3d 770, 779 (Ky. App. 2000)). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
We have examined the record in its entirety and can discern no abuse of discretion. The motion to amend Everman's answer was granted only after the Shaffers had an opportunity to respond and a hearing was held during which the circuit court heard arguments from the parties. The cases cited by the Carter Circuit Court in support of its ruling indicate that its judgment was guided by sound legal principles. We decline to disturb it. Kenney, supra.
The Shaffers next maintain that the circuit court abused its discretion in denying their request for additional time "to conduct discovery" after Everman's amended answer. Because the statute of limitations is an affirmative defense, the Shaffers argue, they should have been given the opportunity to explore whether Everman acted to conceal or prevent the discovery of fraudulent activity.
In discussing this issue, both parties cite the case of Suter v. Mazyck, 226 S.W.3d 837 (Ky. App. 2007). We borrow language from that case in setting forth the standard of review on appeal of summary judgments, namely:
The proper standard of review in appeals from summary judgments has frequently been recited and is concisely set forth in Lewis v. B & R Corporation, 56 S.W.3d 432, 436 (Ky. App. 2001) as follows:
The standard of review on appeal when a trial court grants a motion for summary judgment is "whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." The trial court must view the evidence in the light most favorable to the nonmoving party, and summary judgment should be granted only if it appears impossible that the nonmoving party will be able to produce evidence at trial warranting a judgment in his favor. The moving party bears the initial burden of
Suter, supra at 841.showing that no genuine issue of material fact exists, and then the burden shifts to the party opposing summary judgment to present "at least some affirmative evidence showing that there is a genuine issue of material fact for trial." (citations omitted).
[E]ven though an appellate court always reviews the substance of a trial court's summary judgment ruling de novo, i.e., to determine whether the record reflects a genuine issue of material fact, a reviewing court must also consider whether the trial court gave the party opposing the motion an ample opportunity to respond and complete discovery before the court entered its ruling.Blankenship v. Collier, 302 S.W.3d 665, 668 (Ky. 2010).
We must agree with Everman that five years was ample time for the Shaffers to complete discovery. It was always the Shaffers' claim that Everman had committed fraud in his drafting of the deed description. That act occurred in 1982, when Everman sold the property to Mr. and Mrs. Phillips. The Shaffers fail to assert affirmative evidence that could defeat the motion for summary judgment.
In this proceeding, the summary judgment was based on a fully developed record, including extensive deposition testimony of all the witnesses who were involved in the events described in the Kentucky action. . . . As noted by the circuit judge, there are numerous disputes with respect to ancillary facts but there exists no genuine issue with respect to the facts material to the legal principles supporting the summary judgment which was granted. The facts relied upon by this Court are those found in the deposition testimony in this record and used by the circuit judge in his determination of summary judgment.City of Florence, Kentucky v. Chipman, 38 S.W.3d 387, 391 (Ky. 2001).
The Shaffers lastly assert that the circuit court committed error in failing to rule that Everman's allegedly fraudulent behavior tolled the statute of limitations. See Kentucky Revised Statute (KRS) 413.190(2); and Roman Catholic Diocese of Covington v. Secter, 966 S.W.2d 286, 290 (Ky. App. 1998).
However, Everman's deed description was a matter of public record, filed in 1982; therefore no concealment occurred. Even granting the Shaffers the longer statute of limitations detailed in KRS 413.130(3) (i.e., ten years), their institution of proceedings in this matter exceeded the time constraints. Everman's motion for summary judgment was properly granted.
The judgment of the Carter Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANTS: Robert W. Miller
Grayson, Kentucky BRIEF FOR APPELLEES: William H. Wilhoit
Grayson, Kentucky