Howard Burke, Jr. v. Gregory Burke

• Court: Court of Appeals of Kentucky
• Decided: November 4, 2021
• Docket: 2021 CA 000073
• Status: Unknown

Opinion

RENDERED: NOVEMBER 5, 2021; 10:00 A.M. NOT TO BE PUBLISHED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

** ** ** ** **

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

-2- 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

-3- 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.

-4- 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.

-5- 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.”

-6- 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.

-7- 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

-8- 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,

-9- 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

-10- 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)).

-11- BRIEF FOR APPELLANT: BRIEF FOR APPELLEES:

Whitley Hill Bailey Bruce E. Blackburn Grayson, Kentucky Raceland, Kentucky

-12-