Gross v. Logan

197 S.W.3d 571, 2006 Ky. App. LEXIS 187, 2006 WL 1791405
Court of Appeals of Kentucky·Decided June 30, 2006·No. No. 2005-CA-001934-MR·Published·Cited by 1 cases

Opinion

OPINION

MINTON, Judge.

Garrett Gross and Ronnie Bingham appeal. the summary judgment granted in favor of David Logan, Constance Logan, William F. Norman, and Hazel Norman in a quiet title action. Because we believe that a genuine issue of material fact exists as to whether the Logans and the. Normans properly exercised the right to redeem the property in question, we vacate and remand.

At a master commissioner’s sale on February 11, 2002, Gross and Bingham became the successful bidders on a tract of land located in the Wallins Creek community of Harlan County, Kentucky. The land was sold under a judgment of foreclosure issued by the circuit court' in a tax lien foreclosure instituted by the county attorney on behalf of the state and county against William F. and Hazel Norman, who owned the land.- The land sold for $100.00. And since the sale price represented less than two-thirds of the appraised value of the Norman’s land, the master commissioner’s deed, dated March 1, 2002, passed less than full ownership to Gross and Bingham. Specifically, the master commissioner’s deed contained language retaining a lien in favor of the Normans preserving their right to redeem the property within a year from the date of the sale. The former owner’s statutory right of redemption appears in KRS 426.530. That statute provides:

(1) If real property sold in pursuance of a judgment or order of a court, other than an execution, does not bring two-thirds (2/3) of its appraised value, the defendant and his representatives may redeem it within a year [573] from the day of sale, by paying the original purchase money and ten percent (10%) per annum interest thereon.
(2) The defendant shall pay the redemption money to the clerk of the court in which the judgment was rendered or the order of sale was made. Upon payment by the defendant, the master commissioner shall convey the real property to the defendant.
(3) When the right of redemption exists, the purchaser shall receive an immediate writ of possession and a deed containing a lien in favor of the defendant, reflecting the defendant’s right to redeem during the statutory period.

The master commissioner’s deed accurately tracked the statutory language by stating that the Normans could redeem the property “by paying to the Clerk of the Harlan Circuit Court the amount of the original purchase money as set forth [in the deed], plus ten percent (10%) per an-num interest thereupon from date of the sale until paid.” The master commissioner’s deed was not recorded with the county clerk until December 30, 2002.

Before the one-year redemption period expired, the Normans deeded the same land to the Logans for a stated consideration of $4,000.00. This deed, which was dated September 28, 2002, does not mention the earlier master commissioner’s deed, nor does it mention the Normans’ redemption right. According to the Lo-gans, when they took the deed to record with the county clerk on December 27, 2002, they asked about back taxes owed on the property. Someone in the county clerk’s office alerted the Logans to delinquent tax bills affecting the property and sent the Logans to talk to the county tax commissioner. The tax commissioner sent the Logans back to the county clerk, who then sent them to the Harlan County Attorney.

Assistant Harlan County Attorney Anthony Saragas, who was counsel of record for the state and county in the tax lien foreclosure action against the Normans, met with the Logans on December 27, 2002. Following that meeting, Saragas prepared a written agreement, which provided that the Logans would pay “back taxes due and owing” on this property as follows: $300.00 to the Harlan County Attorney by January 3, 2003, and $200.00 per month thereafter until the outstanding taxes were paid. The Logans paid $300.00 to the Harlan County Attorney on January 6, 2003, and an additional $100.00 on March 28, 2003.

In May 2003, Gross and Bingham filed a quiet title action against the Normans and the Logans. The Logans and the Normans counterclaimed, alleging that Gross and Bingham are not the true owners of the property because the Logans and the Normans paid a portion of the outstanding back taxes to the Harlan County Attorney’s office under the agreement prepared by Attorney Saragas.2 Both sides filed motions for summary judgment, and the trial court granted summary judgment to the Normans and the Logans finding that the Logans had properly exercised their right of redemption when the Logans made two payments toward the delinquent taxes to the Harlan County Attorney’s office. Gross and Bingham appealed the summary judgment.

In assessing the propriety of the grant of summary judgment, we are mindful that [574] summary judgment was appropriate only if the Normans and the Logans showed that Gross and Bingham “could not prevail under any circumstances.”3 In ruling on a motion for summary judgment, we must view the evidence in the light most favorable to the party opposing the motion — in this instance, Gross and Bingham.4 When we review a trial court’s decision to grant summary judgment, we must determine whether the trial court correctly found that there were no genuine issues of material fact.5 And although the circuit court’s summary judgment order inappropriately makes “[findings of [fjact” in its order, there are no material facts at issue on appeal so the trial court’s decision is entitled to no deference.6

In order to exercise the right of redemption under KRS 426.530, one must: (1) pay the original purchase price, plus interest; (2) to the clerk of the court that ordered the sale; (3) within one year from the date of the sale. So in the case at hand, the Normans or the Logans were required to pay $100.00, plus approximately $10.00 in interest, to the Harlan Circuit Clerk by March 1, 2003, to redeem the property. We will examine each element separately to see if the record supports the trial court’s conclusion that the Logans properly exercised the statutory right of redemption. We recognize that the law favors the former owners’ redemption right and resolves any ambiguities in the law so as to uphold redemption.7

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Gross v. Logan, 197 S.W.3d 571, 2006 Ky. App. LEXIS 187, 2006 WL 1791405 (Ky. Ct. App. 2006).

197 S.W.3d 571 (Gross v. Logan) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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