Howard Burke, Jr. v. Gregory Burke ( 2021 )

RENDERED: NOVEMBER 5, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0073-MR
HOWARD BURKE, JR. APPELLANT
APPEAL FROM GREENUP CIRCUIT COURT
v. HONORABLE JOHN F. VINCENT, SPECIAL JUDGE
ACTION NO. 18-CI-00486
GREGORY BURKE; APRIL BURKE;
AND JUANITA MARIE BURKE1 APPELLEES
OPINION
AFFIRMING
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BEFORE: CALDWELL, DIXON, AND L. THOMPSON, JUDGES.
DIXON, JUDGE: Howard Burke, Jr., appeals the order dismissing his claims
against Gregory Burke and April Burke entered on November 10, 2020, by the
Greenup Circuit Court. After careful review of the briefs, the record, and the law,
we affirm.
1
Juanita Marie Burke was not a party to this cause of action. Accordingly, a show cause order
was issued to Howard Burke, Jr., to demonstrate why Juanita was named as an appellee. No
good cause being shown, she has been dismissed as a party to this action by separate order.
FACTS AND PROCEDURAL BACKGROUND
Howard Burke, Jr., and Juanita Marie Burke were married in 1961.
Their marriage produced two children–a son, Gregory Burke, and a daughter not
party to this action. On August 21, 2001, Howard and Juanita deeded their family
home to Gregory; however, the deed was not recorded with the Greenup County
Clerk until 2017. At the time the deed was made, Howard, Juanita, and Gregory
resided together on the property, and continued to do so until 2017. Howard
believed the deed contained a provision for him to retain a life estate interest in the
property. Gregory eventually married April Burke, but the deed was never altered
to reflect their marriage.
Howard lived at the residence, paid the property taxes, insurance, and
utilities, and also performed maintenance and made improvements to the property
until he became ill, requiring hospitalization, in 2017. When Howard was released
from the hospital, none of his family came for him. He was discharged with no
shoes, glasses, hearing aids, identification, or money. He was physically unable to
return to his home and moved through a series of nursing homes, rehabilitation
centers, and the Veteran’s Administration hospital.
When Howard was physically able to return home, he was met with
hostility. He requested the court issue restraining, domestic, and interpersonal
violence orders against Juanita and Gregory. Howard alleged he had been
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threatened and he and his property had been injured. Most notable of Howard’s
accusations were unexplained chemical burns and lug-nuts being removed from his
vehicle.
During this time, Juanita filed for divorce, and Howard was served
with an eviction notice. It was then that Howard reviewed the actual language of
the deed and discovered the absence of a provision for him to retain a life estate
interest in the property. Howard and Juanita were ultimately divorced on July 5,
2018. In its decree, the Greenup Circuit Court found there was no real estate to be
divided between Howard and Juanita as it had all been previously deeded to their
children.
On October 11, 2018, Howard filed the instant action against Gregory
and April. His complaint advanced many theories and requested various forms of
relief, including reformation of the deed and/or finding of adverse possession.
After significant discovery, on August 26, 2019, Gregory and April moved the trial
court for summary judgment. Howard responded, and the matter was submitted on
September 19, 2019. While the motion was pending, Gregory and April moved the
court for a trial date, which was set for November 23, 2020.
Howard eventually moved the trial court for leave to amend his
complaint on August 26, 2020; however, the original trial judge recused, and a
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special judge was assigned. Thereafter, Howard filed a second motion for leave to
amend his complaint on September 17, 2020.
On November 10, 2020, the court granted summary judgment and
denied Howard’s motion to amend his complaint as moot. Howard moved to alter,
amend, or vacate the court’s order. The motion was denied, and this appeal
followed.
STANDARD OF REVIEW
Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, stipulations, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” CR2 56.03. An
appellate court’s role in reviewing a summary judgment is to determine whether
the trial court erred in finding no genuine issue of material fact exists and the
moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916
S.W.2d 779, 781 (Ky. App. 1996). A grant of summary judgment is reviewed de
novo because factual findings are not at issue. Pinkston v. Audubon Area Cmty.
Servs., Inc., 210 S.W.3d 188, 189 (Ky. App. 2006) (citing Blevins v. Moran, 12
S.W.3d 698, 700 (Ky. App. 2000)).
2
Kentucky Rules of Civil Procedure.
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LEGAL ANALYSIS
On appeal, Howard argues the trial court erred in granting summary
judgment and raises several issues in support thereof. We will address each, in
turn.
Life Estate
Howard first asserts the trial court erred in granting summary
judgment because there was a genuine issue as to whether a life estate should have
been part of the deed. A life estate is a freehold interest in land where the term
continues during the life of the owner or some other person. English v. Carter, 300
Ky. 580, 189 S.W.2d 839 (1945). Here, the plain language of the deed
demonstrates that Howard unequivocally conveyed all his interest in the subject
property to Gregory without retaining a life estate or any other interest for himself.
Howard signed the deed, evincing his intent to be bound by the instrument. See
Gentry’s Guardian v. Gentry, 219 Ky. 569, 293 S.W. 1094, 1094 (1927). Howard
cannot now complain of mistake where no evidence exists, except that of his own
self-serving testimony and a letter from his lawyer reiterating same, more than 17
years after he signed the deed. Accordingly, the court did not err in finding no
genuine issue of material fact exists that would preclude summary judgment on
this point.
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Howard further complains that the trial court granted summary
judgment based on a legal impossibility because he failed to have the deed
corrected. Howard asserts he could not, unilaterally, have corrected any mistake or
omission in the deed related to the life estate. He also points out that his attorney
reached out to Gregory via letter requesting to correct the deed in December 2017.
It is a long-standing principle in Kentucky that:
A unilateral mistake is not ground for reformation. An
instrument which agrees with the intention of one party,
although executed under mistake as to the other, cannot
be reformed. Before a court of equity will reform a
written instrument it must appear that there was a valid
agreement, that the written instrument failed to express
such agreement, that this failure was due to mistake, and
this must all appear by clear and convincing proof.
Kentucky Title Co. v. Hail, 219 Ky. 256, 292 S.W. 817, 822 (1927). Review of the
record reveals that Howard’s belief that he had retained a life estate in the property
was unfortunately a unilateral mistake, which he was unsuccessful in correcting
and the trial court was unable to reform in the absence of proven fraud.
Adverse Possession
Howard additionally claims the trial court erred in granting summary
judgment because there was a genuine issue as to whether he met the required
elements for adverse possession. To establish adverse possession, the “1)
possession must be hostile and under a claim of right, 2) it must be actual, 3) it
must be exclusive, 4) it must be continuous, and 5) it must be open and notorious.”
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Appalachian Reg’l Healthcare, Inc. v. Royal Crown Bottling Co. Inc., 824 S.W.2d
878, 880 (Ky. 1992) (citing Tartar v. Tucker, 280 S.W.2d 150, 152 (Ky. 1955)).
“Further, these common law elements of adverse possession must all be
maintained for the statutory period of fifteen years, and it is the claimant’s burden
to prove them by clear and convincing evidence.” Elsea v. Day, 448 S.W.3d 259,
263 (Ky. App. 2014) (citing Moore v. Stills, 307 S.W.3d 71, 78 (Ky. 2010)).
The Supreme Court of Kentucky has held marking a property for the
purposes of adverse possession “did not commence the running of the limitations
period unless and until it was accompanied by a use of the property clearly
indicative of Petitioners’ intent to exert dominion over it to the exclusion of the
rightful owner.” Moore, 307 S.W.3d at 78 (emphasis added). Here, the parties
lived together on the property until 2017. Thus, the trial court correctly found that
Howard could not and did not adversely possess the property for the required 15
years. In light of Howard’s inability to satisfy the requisite time period, the trial
court was not required to make any further factual findings regarding whether
Howard would have otherwise satisfied the elements necessary to establish adverse
possession.
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Motion to Amend
Next, Howard contends the trial court erred in granting summary
judgment without first ruling on his motion to amend the complaint. In pertinent
part, CR 15.01 provides:
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.
“While liberality in granting leave to amend is desirable, the application is
addressed to the sound discretion of the trial judge.” Bradford v. Billington, 299
S.W.2d 601, 603 (Ky. 1957). Here, Howard did not bother to request leave from
the trial court to amend his complaint until nearly a year after the motion for
summary judgment was submitted and more than six months after the trial date
was set. Where, as in the case herein, abuse of discretion is not clearly shown, “the
action of the trial judge will not be disturbed.” Id.Howard also maintains he had a genuine belief that discovery was
incomplete. It is well-established that “summary judgment is only proper after a
party has been given ample opportunity to complete discovery, and then fails to
offer controverting evidence.” Pendleton Bros. Vending, Inc. v. Commonwealth
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Fin. & Admin. Cabinet, 758 S.W.2d 24, 29 (Ky. 1988) (emphasis added) (citing
Hartford Ins. Grp. v. Citizens Fid. Bank & Trust Co., 579 S.W.2d 628 (Ky. App.
1979)). Yet, it is “not necessary to show that the respondent has actually
completed discovery, but only that respondent has had an opportunity to do so.”
Hartford, 579 S.W.2d at 630.
In Hartford, a period of approximately six months between the filing
of the complaint and the summary judgment was found to be sufficient time to
conduct discovery. However, this is not a bright-line rule, and the appropriate time
for discovery necessarily varies from case to case depending on the complexity,
availability of information sought, and the like. See Suter v. Mazyck, 226 S.W.3d
837, 842 (Ky. App. 2007), as modified (Jul. 13, 2007).
Here, more than two years elapsed between the filing of the complaint
and the grant of summary judgment. This is not a complicated case, nor has it
been alleged that any information sought has been withheld. A trial date was
assigned, and summary judgment was granted a mere ten days prior thereto.
Moreover, Howard fails to identify what discovery had not yet been accomplished.
Thus, we cannot say the trial court’s grant of summary judgment was premature.
Other Claims
Howard next asserts the trial court erred in failing to address his
claims for unjust enrichment, fraud, duress, and malicious conduct. However,
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Howard fails to set forth how he could prevail on any of these claims. Rather, he
claims these issues were ignored by the trial court. He then asserts that Gregory’s
actions in 2017 and thereafter have “everything to do with the execution of the
2001 Deed.” The deed was signed by Howard in 2001; thus, any actions after that
time clearly can have no bearing upon it. While we sympathize with Howard’s
predicament, he has failed to demonstrate how, as a matter of fact or law, he is
entitled to the relief sought.
Collateral Estoppel
Finally, Howard contends the trial court erred in finding his claims
barred via collateral estoppel. The findings of fact, conclusions of law, and decree
of dissolution of marriage was entered by the Greenup Circuit Court after the deed
was made, executed, and filed with the clerk. The decree was entered, appealed,
and an opinion regarding same rendered by another panel of our Court prior to the
entry of summary judgment in the case herein. The part of the decree pertaining to
the real estate of Howard and Juanita was neither challenged nor disturbed on
appeal. If Howard failed to raise the issue on appeal in that case, it was abandoned
and/or waived. Johnson v. Commonwealth, 450 S.W.3d 707, 713 (Ky. 2014). If
that part of the decree was undisturbed on appeal, it is binding under the principle
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of collateral estoppel.3
Here, the trial court specifically recognized in its summary judgment
that the deed at issue involved the same property that would have constituted real
estate subject to division by Howard and Juanita in their divorce proceeding had
they had any interest in it at the time their marriage was dissolved. As such, the
decree is controlling, and the trial court properly followed the prior determination
that Howard had no interest in the property.
CONCLUSION
Therefore, and for the foregoing reasons, the order of the Greenup
Circuit Court is AFFIRMED.
ALL CONCUR.
3
Collateral estoppel
is based upon privity between a party to the original suit and the
person who should be bound by the judgment. This privity is in
turn founded upon such an identity of interest that the party to the
judgment represented the same legal right. The rule is essentially
one of justice and fairness and recognizes that a question once
litigated should not be relitigated. But the doctrine may not be
invoked to deprive a party of an actual opportunity to be heard on a
material issue.
Waddell v. Stevenson, 683 S.W.2d 955, 959 (Ky. App. 1984) (quoting State Farm Mut. Auto. Ins.
Co. v. Shelton, 368 S.W.2d 734, 737 (Ky. 1963)).
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEES:
Whitley Hill Bailey Bruce E. Blackburn
Grayson, Kentucky Raceland, Kentucky
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