James Bruce Cardwell v. Timothy D. Woodcock

• Court: Court of Appeals of Kentucky
• Decided: July 3, 2025
• Docket: 2024-CA-0329
• Status: Unpublished

Opinion

RENDERED: JULY 3, 2025; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0329-MR

JAMES BRUCE CARDWELL AND LORA MARIE CARDWELL APPELLANTS

APPEAL FROM WHITLEY CIRCUIT COURT v. HONORABLE DANIEL BALLOU, JUDGE ACTION NO. 23-CI-00110

TIMOTHY D. WOODCOCK AND ABBIE JONES CONSULTING, PSC. APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: COMBS, LAMBERT, AND MCNEILL, JUDGES.

LAMBERT, JUDGE: James Bruce Cardwell and Lora Marie Cardwell (the

Cardwells) have appealed from the March 4, 2024, order of the Whitley Circuit

Court granting summary judgment to Timothy D. Woodcock and Abbie Jones

Consulting, PSC (AJC or, collectively, the AJC defendants) related to a property

survey. We affirm. Because there has been no discovery in the case, we shall summarize

the relevant facts as they are set forth in the various filings. In October 2016, the

Cardwells purchased real property at 3747 River Road in Williamsburg, Kentucky.

This property is bordered by a tract of more than 500 acres that was transferred by

Joe Patrick and his wife to James and Victoria Marsee in January 1977. We shall

refer to this as the Joe Patrick Farm or the Marsee property. In December 2022,

the Marsees retained AJC and Woodcock, a licensed professional Kentucky land

surveyor employed by AJC, to perform a partial boundary survey of the property

line between their property and property owned by Edgar Meadors (not the

Cardwells’ property). In February 2023, Woodcock delivered the completed

survey to James Marsee and recorded what the Cardwells described as a

retracement survey of the Joe Patrick Farm and indicated that the acreage totaled

551.38 acres. The plat is entitled as a “Partial Boundary Exhibit of the James A.

and Victoria A. Marsee Property.” This plat indicated that there was a public road

that ran through the Cardwells’ property, which was identified as a boundary for

the Marsee property, and that it encumbered a portion of the Cardwells’ property.

The Cardwells stated that both of these contentions were false.

The Cardwells filed the present lawsuit on February 27, 2023, two

weeks after the plat was recorded, naming the Marsees and their heirs (the Marsee

-2- defendants), Woodcock, AJC, and Whitley County1 as defendants. The Cardwells

sought to quiet title to their real property, a direction that the county clerk strike the

plat in question, a declaration that there was no public road on their real property,

and a claim for slander of title. Specifically as to the AJC defendants, the

Cardwells sought damages for slander of title and professional land surveyor

malpractice.

In July 2023, the Cardwells moved the court for a default judgment,

stating that all of the defendants had been served with process, but none had filed a

responsive pleading to their complaint. They acknowledged that they had agreed

to not file a motion for default judgment pending a settlement of the case, but it

had become clear that the defendants were not going to put together an acceptable

settlement package. The Marsee defendants moved for leave to file a belated

answer, noting that they had been attempting to settle the matter. In an order

entered August 7, 2023, the court denied the motion for default judgment, granted

the Marsee defendants’ motion to file a belated answer, and granted all defendants

30 days to answer the Cardwells’ complaint.

1 The Cardwells named Whitley County as a defendant as it might be claiming an interest in unpaid ad valorem taxes due on the subject matter of the lawsuit. Along with its answer, Whitley County filed a counterclaim and a cross-claim seeking a lien against the subject property for taxes for the year 2023 and all subsequent years. The Cardwells filed an answer, admitting the allegations in the counterclaim and cross-claim, including the priority of the lien.

-3- The AJC defendants filed their answer on August 24, 2023, generally

denying the Cardwells’ allegations and specifically asserting that their claims were

barred due to a lack of privity of contract and that they had not acted negligently.

The Cardwells filed a renewed motion for default judgment against the Marsee

defendants in September, following the expiration of the 30-day period the court

permitted in its order.

Rather than ruling on the renewed motion for a default judgment, the

circuit court entered an order on October 23, 2023, directing the parties to mediate

the matter. On December 9, 2023, the Cardwells filed a motion to abrogate the

mediation requirement between them and the AJC defendants, stating that counsel

for those defendants had indicated that they would only settle for a trivial amount

and that they did not want to engage in mediation. The motion was noticed to be

heard on February 5, 2024. On February 8, 2024, the court entered an order

denying the motion, noting that the AJC defendants had advised the court that they

intended to file a motion for summary judgment and that the mediator had died.

On February 8, 2024, three days after the hearing and the same day

the order was entered, the AJC defendants filed a motion for summary judgment

on the Cardwells’ claims against them for slander of title and professional

negligence, supported by Woodcock’s attached affidavit. They argued that there

were no disputed issues of material fact to be decided and that they were entitled to

-4- a judgment as a matter of law. In the memorandum in support of the motion, the

AJC defendants stated that they had not been hired to survey the property line

between the Marsees’ property and the Cardwells’ property and that the survey

delivered to James Marsee in February 2023 stated that the only portion of it that

met the requirements of 201 Kentucky Administrative Regulations (KAR) 18:150

§ 12 was the portion in the “revision cloud.” Therefore, the Cardwells’ property

was not legally impacted by the partial boundary survey.

In response, and supported by James Cardwell’s affidavit, the

Cardwells argued that summary judgment was premature. No discovery had been

taken, no facts had been developed, and no experts had been hired (in order to keep

costs down). They went on to dispute the AJC defendants’ legal arguments. In the

affidavit, Cardwell stated that James Marsee used the survey to assert that the

Cardwells were claiming land that the Marsees owned, leading the Cardwells to

have their land surveyed and the boundary line remarked.

In their reply, the AJC defendants addressed, among other issues, the

Cardwells’ failure to retain an expert for their professional negligence claim.

By order2 entered March 4, 2024, the court granted the motion for

summary judgment, without including any legal reasoning, and made the order

final and appealable. This appeal now follows.

2 The circuit court used the proposed order submitted by the AJC defendants.

-5- On appeal, the Cardwells assert that they did not have sufficient time

to conduct discovery, that there were multiple genuine issues of material fact that

precluded the entry of summary judgment, and that the AJC defendants were not

entitled to a judgment on either of their claims against them. The AJC defendants

contend that the Cardwells’ claims arise from James Marsee’s misuse of the partial

boundary survey and that they are not responsible for that misuse.

Our review of an order granting summary judgment is as follows:

Summary judgment is to be cautiously applied and should not be used as a substitute for trial. Granting a motion for summary judgment is an extraordinary remedy and should only be used to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor and against the movant. The trial court must review the evidence, not to resolve any issue of fact, but to discover whether a real fact issue exists. This review requires the facts be viewed in the light most favorable to the party opposing summary judgment. . . . Appellate review of a summary judgment involves only legal questions and a determination of whether a disputed material issue of fact exists. So we operate under a de novo standard of review with no need to defer to the trial court’s decision.

Shelton v. Kentucky Easter Seals Soc., Inc., 413 S.W.3d 901, 905 (Ky. 2013)

(internal quotation marks and footnotes omitted).

We shall first consider whether the Cardwells had sufficient time to

conduct discovery.

-6- The standards governing summary judgment practice are set forth in

Kentucky Rules of Civil Procedure (CR) 56. “A party against whom a claim . . . is

sought may, at any time, move with or without supporting affidavits for a summary

judgment in his favor as to all or any part thereof.” CR 56.02. And a summary

judgment “shall be rendered forthwith 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.” CR 56.03.

While CR 56.02 makes it clear that a summary judgment motion may

be filed at any time, such motions may not be filed prematurely:

Although a defendant is permitted to move for a summary judgment at any time, this Court has cautioned trial courts not to take up these motions prematurely and to consider summary judgment motions “only after the opposing party has been given ample opportunity to complete discovery.” Thus, even 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) (citation omitted). “The

trial court’s determination that a sufficient amount of time has passed and that it

can properly take up the summary judgment motion for a ruling is reviewed for an

-7- abuse of discretion.” Id. “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 & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky.

2000) (citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)).

In the present case, the Cardwells argue that the filing of the summary

judgment motion three days after the hearing on the motion to abrogate mediation,

and the entry of the order granting summary judgment the following month, was

fundamentally unfair as they did not have time to conduct discovery. The AJC

defendants argue that the three-day discovery argument is a red herring and that the

Cardwells had more than a year to conduct discovery.

Our review of the record confirms that the Cardwells filed their

complaint in February 2023 and that the AJC defendants did not file the motion for

summary judgment until February 2024, which was granted a month later.

However, what transpired in the intervening year was several months of delay

before any answer was filed (only the AJC defendants have filed an answer; it does

not appear that the Marsee defendants have filed one), the filing of motions for a

default judgment, and an order for mandatory mediation that was apparently

withdrawn at the same time the motion for summary judgment was filed. There

was essentially no time to conduct discovery due to the delays in the defendants’

filing their respective answers (if filed at all) and the mandatory mediation order.

-8- Therefore, the Cardwells have not been afforded sufficient time to conduct

discovery, and the trial court appears to have abused its discretion in ruling on the

motion for summary judgment.

However, we must also consider whether the Cardwells pled facts

that, if borne out by proper discovery, would entitle them to relief, and whether

their claims fail as a matter of law.

As the AJC defendants point out, the Cardwells must establish that

they were negligent. “The basic elements of a negligence claim are: ‘duty, breach,

causation, damages.’” Phelps v. Bluegrass Hospitality Mgmt., LLC, 630 S.W.3d

623, 628 (Ky. 2021) (quoting Carter v. Bullitt Host, LLC, 471 S.W.3d 288, 298

(Ky. 2015)). “The determination of whether a duty exists is a legal question for the

court.” Shelton, 413 S.W.3d at 908. “If no duty is owed by the defendant to the

plaintiff, there can be no breach thereof, and therefore no actionable negligence.”

Ashcraft v. Peoples Liberty Bank & Tr. Co., Inc., 724 S.W.2d 228, 229 (Ky. App.

1986). “[I]n order to determine whether a duty existed in a particular situation, the

examination must be focused so as to determine whether a duty is owed with

consideration being given to public policy and statutory and common law

theories.” James v. Wilson, 95 S.W.3d 875, 893 (Ky. App. 2002) (citing Fryman v.

Harrison, 896 S.W.2d 908, 909 (Ky. 1995)). In addition, the AJC defendants

assert that in Kentucky, the courts refuse recovery in tort for the loss of purely

-9- economic damages to parties that lack privity of contract with a negligent

professional. See Giddings & Lewis, Inc. v. Industrial Risk Insurers, 348 S.W.3d

729, 739 (Ky. 2011).

There is no question that the Cardwells did not have a contract with

the AJC defendants, as the Marsees were the ones who contracted with them to

conduct the survey. And we reject the Cardwells’ arguments that such duty exists

under § 552 of the Restatement (Second) of Torts (discussing information

negligently supplied for the guidance of others) or 201 KAR 18:142 (the code of

professional practice and conduct for land surveyors).

The first claim we shall address is the claim for professional land

surveyor malpractice and whether any disputed issues of material fact remain to be

decided. Pursuant to 201 KAR 18:150 § 3(2),

A professional land surveyor shall not represent that:

(a) A boundary survey determines land ownership; or

(b) A boundary survey provides more than evidence of rights in land; or

(c) Land ownership can be established by any survey.

“Failure to comply with this administrative regulation shall constitute misconduct,

gross negligence, incompetence, or a combination of these violations in the

practice of professional land surveying.” 201 KAR 18:150 § 3(1).

-10- We agree with the AJC defendants that the Cardwells have presented

no evidence of such a violation. Rather, it appears that the Cardwells’ claims arise

from James Marsee’s misinterpretation of the partial boundary survey, not from

actions of the AJC defendants, who did not know that James Marsee would use the

survey in the manner that he did. Furthermore, the Cardwells have not pled any

facts that the AJC defendants fell below the standards set forth in 201 KAR 18:150

§§ 6 (addressing field work) or 12 (addressing partial boundary surveys). The

Cardwells’ property interests were not adversely affected by the partial survey, as

the only area of significance was between the Marsees’ and the Meadors’

properties. We agree with the AJC defendants that they are entitled to a judgment

on this claim as a matter of law.

We shall next consider the Cardwells’ claim for slander of title.

Restatement (Second) of Torts § 624 (1977) addresses slander of title and provides:

The rules on liability for the publication of an injurious falsehood stated in § 623A apply to the publication of a false statement disparaging another’s property rights in land, chattels or intangible things, that the publisher should recognize as likely to result in pecuniary harm to the other through the conduct of third persons in respect to the other’s interests in the property.

See Ballard v. 1400 Willow Council of Co-Owners, Inc., 430 S.W.3d 229, 235-36

(Ky. 2013), for more discussion of § 624.

In order to maintain a slander of title action in this jurisdiction, the plaintiff must plead and prove that the

-11- defendant has knowingly and maliciously communicated, orally or in writing, a false statement which has the effect of disparaging the plaintiff’s title to property; he must also plead and prove that he has incurred special damage as a result. . . . The special damage required may consist of either a loss by the plaintiff of a sale of his property or a diminution in its fair market value.

Bonnie Braes Farms, Inc. v. Robinson, 598 S.W.2d 765, 766-67 (Ky. App. 1980)

(citations omitted).

We agree with the AJC defendants that the Cardwells have failed to

plead any facts that they (the AJC defendants) should have known that portions of

the survey they were not contracted to perform would be used against the

Cardwells. Again, the partial boundary survey had no legal effect on the

Cardwells’ property and the AJC defendants could not have foreseen that James

Marsee would use the survey the way he did. Accordingly, we hold that the AJC

defendants are entitled to a judgment as a matter of law. The circuit court did not

commit any error in granting summary judgment in their favor.

Because we have concluded that the Cardwells’ claims fail as a matter

of law and that the circuit court properly granted summary judgment, the circuit

court did not abuse its discretion in not allowing them to conduct discovery.

For the foregoing reasons, the judgment of the Whitley Circuit Court

is affirmed.

ALL CONCUR.

-12- BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEES:

James H. Wren, II B. Scott Jones Williamsburg, Kentucky Louisville, Kentucky

-13-