Opinion
NO. 2011-CA-002165-MR
02-01-2013
DEBBIE JO COMBS OUSLEY APPELLANT v. AGATHA SLONE APPELLEE
BRIEFS FOR APPELLANT: John T. Chafin Prestonsburg, Kentucky BRIEF FOR APPELLEE: Jerry A. Patton Prestonsburg, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FLOYD CIRCUIT COURT
HONORABLE DANNY P. CAUDILL, JUDGE
ACTION NO. 07-CI-00098
OPINION
AFFIRMING
BEFORE: DIXON, MAZE, AND NICKELL, JUDGES. DIXON, JUDGE: Debbie Jo Combs Ousley appeals an order of the Floyd Circuit Court, which granted Agatha Slone's motion for post-judgment relief pursuant to CR 60.02. Finding no error, we affirm.
In October 1996, Debbie and her then-husband, Paul Combs, entered into an agreement to purchase a new triple-wide mobile home from American Homes, Inc. First Federal Savings and Loan Association financed the purchase and retained a security interest in the mobile home. The promissory note was also secured by a mortgage on the tract of land where the mobile home was located. In February 2004, First Federal's successor-in-interest assigned the mortgage to Vanderbilt Mortgage and Finance, Inc. In January 2005, Paul placed an advertisement in the newspaper offering the mobile home and land for sale, with terms that required the interested buyer to assume the existing mortgage. By that time, Paul and Debbie had been separated for several months, and they divorced in March 2005. Paul's debts were subsequently discharged in a Chapter 7 bankruptcy proceeding.
In response to the advertisement, Agatha Slone entered into a verbal agreement with Paul and Debbie to assume the mortgage (which was in default) and insurance payments, in exchange for fee simple title to the property subject to the mortgage. Agatha moved into the mobile home, made monthly mortgage payments to Vanderbilt, and made improvements to the property.
In January 2007, Agatha filed a complaint against Debbie, Paul, and Vanderbilt, demanding specific performance of the parties' agreement to convey her fee simple title subject to the mortgage. Each party filed an answer, and Vanderbilt subsequently filed a cross-claim against Debbie and Paul to foreclose on the mortgage. The discovery process included depositions, interrogatories, and the production of documents. In June 2009, Vanderbilt agreed to release the mortgage and lien on the property, and Vanderbilt was dismissed as a party to the case. In April 2010, the court granted Agatha's motion for summary judgment, concluding she was entitled to specific performance of the agreement. The court ordered the master commissioner to execute a deed of conveyance, conveying the real property from Paul and Debbie to Agatha.
Debbie filed a motion to alter, amend, or vacate the court's judgment. In November 2010, the court denied Debbie's motion, and she did not file an appeal with this Court.
In April 2011, Agatha filed a CR 60.02 motion to amend the summary judgment. Agatha asked the court to specifically identify the mobile home in its order, which would allow the master commissioner to transfer title to Agatha. Debbie opposed Agatha's motion, contending the mobile home was Debbie's personal property pursuant to KRS 186A.297. On November 21, 2011, the court amended its summary judgment to reflect that Agatha was awarded title to the mobile home with the real property. Debbie filed this appeal.
The trial court is vested with broad discretion to determine whether to grant CR 60.02 relief; accordingly, appellate review of the court's decision is pursuant to the abuse of discretion standard. Kurtsinger v. Board of Trustees of Kentucky Retirement Systems, 90 S.W.3d 454, 456 (Ky. 2002). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).
In Barnette v. Grizzly Processing, LLC, 809 F. Supp. 2d 636, 649 (E.D. Ky. 2011), the district court explained:
Under [KRS] 186A.297(1), a manufactured home remains personal property until the owner files an affidavit of conversion to real estate with the county clerk's office attesting that the home has been or will be permanently affixed to the real estate. The owner must also surrender the Kentucky certificate of title. Only after taking these steps will the manufactured home lose its status as personal property and become an improvement to the real estate on which it sits.
Debbie contends that the mobile home was her personal property because there was no proof that the mobile home was permanently affixed to the land; consequently, she asserts the court abused its discretion by amending its judgment to award the mobile home to Agatha. We disagree.
During the course of this litigation, the parties' arguments and discovery focused on the agreement to transfer the mobile home and land to Agatha when she assumed the mortgage payments on behalf of Debbie and Paul. Debbie never asserted that the mobile home was her personal property because it was not attached to the land. The summary judgment included specific findings that Debbie allowed Agatha to take possession of the home and assume the payments. Furthermore, the summary judgment established that Agatha was entitled to specific performance of the parties' agreement, which was to convey title to the real property subject to the mortgage. The record indicates that the mortgage documents included the lien on the mobile home and the land on which it was located.
The Kentucky Supreme Court has explained that CR 60.02,
. . . is a safety valve, error correcting device for trial courts. It applies in six enumerated situations: (a) mistake, inadvertence, surprise or excusable neglect; (b) newly discovered evidence . . .; (c) perjury or falsified evidence; (d) fraud affecting the proceedings . . .; (e) the judgment is void . . .; or (f) any other reason of an extraordinary nature justifying relief. The rule is designed to allow trial courts a measure of flexibility to achieve just results and thereby provides the trial court with extensive power to correct a judgment.Kurtsinger, 90 S.W.3d at 456 (internal quotation marks and footnotes omitted).
The mortgage documents and the parties' course of conduct supported an assumption that the mobile home was a permanent improvement to the real estate, and no evidence to the contrary was introduced. The summary judgment ordered specific performance of the parties' agreement to transfer the real property to Agatha; however, it failed to specifically identify the mobile home. Once the omission was brought to the court's attention, it rendered an amended judgment specifically identifying the mobile home in the award to Agatha. Under the circumstances presented, we conclude the trial court did not abuse its discretion.
For the reasons stated herein, the judgment of the Floyd Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: John T. Chafin
Prestonsburg, Kentucky
BRIEF FOR APPELLEE: Jerry A. Patton
Prestonsburg, Kentucky