RENDERED: AUGUST 6, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0520-MR
JAMES E. COPLEY APPELLANT
APPEAL FROM RUSSELL CIRCUIT COURT v. HONORABLE VERNON MINIARD, JR., JUDGE ACTION NO. 19-CI-00285
BARRY PASSMORE AND JACQUELINE PASSMORE APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: JONES, MAZE, AND TAYLOR, JUDGES.
MAZE, JUDGE: Appellant James E. Copley appeals from the summary dismissal
of his complaint alleging that appellees Barry and Jacqueline Passmore are in
violation of restrictive covenants encumbering property they own in the Edwin
Robertson Farm Division. Because the circuit court considered matters outside the pleadings, it appropriately treated the CR1 12.03 motion to dismiss as one for
summary judgment. We affirm the entry of summary judgment dismissing
Copley’s complaint.
Copley, who owns property in the same subdivision, filed a complaint
in Russell Circuit Court alleging that the Passmores’ use of their property for the
storage of wrecked and junked vehicles was in direct violation of a document
styled “Restriction on Torch Ridge Farm.” That document, a copy of which was
appended to the complaint, enumerated restrictions which included the following
which are pertinent to this appeal:
1. No junk or inoperative automobiles shall be allowed upon the premises except in enclosed structures where the same shall not be visible to adjoining property owners or from the public right of way.
2. No noxious or offensive trade or activity shall be carried on upon the real estate nor shall anything be done thereon which may become and [sic] annoyance to neighborhood.
3. The real estate shall not be used or maintained as a dumping ground for rubbish, etc. . . .
Copley alleged that the storage of wrecked and junk vehicles on the Passmores’
property for the purpose of disassembly of the vehicles and sale of their parts
directly violated those restrictions. Notably, the copy of the Torch Ridge Farm
1 Kentucky Rule of Civil Procedure.
-2- Restriction appended to the complaint does not contain a stamp or other indication
that it had been filed of record in the office of the Russell County Clerk. In
addition, Copley alleged that the Edwin Robertson Farm subdivision had at times
been referred to in the Russell County Clerk’s Office, and elsewhere, as “Torch
Ridge Farm,” “Torch Ridge Farm Division,” “Robertson Farm,” “Robertson Farm
Division,” and “Edwin Robertson Tract.”
After filing an answer and counterclaim, the Passmores filed a motion
to dismiss stating that no restrictions or covenants appear or are referenced in their
deed or chain of title to the property. Further, they alleged that the Torch Ridge
Farm restrictions appended to the complaint had never been filed in the Russell
County Clerk’s office. Finally, the Passmores asserted that under the merger
doctrine, all prior statements and agreements concerning their property merged into
the deed and all parties are thereafter bound by that instrument.
The trial court subsequently conducted a hearing on the motion at
which only the Russell County Clerk, Sue Brockman, testified. After verifying the
authenticity of two affidavits she had previously filed in the case, Ms. Brockman
reaffirmed that the Russell County Clerk’s office stamps each and every document,
including lists of restrictions, with a stamp identifying the date the document was
recorded and its location in the clerk’s office. She also testified that she had
searched and examined the records of the Russell County Clerk’s office and found
-3- no restrictions or covenants on file for either the “Edwin Robertson Farm
Division” or “Torch Ridge Farm.” Ms. Brockman also stated that she had
examined the document titled “Restriction of Torch Ridge Farm” which had been
appended to Copley’s complaint and stated that she could verify that the document
had never been filed in the Russell County Clerk’s office. No evidence to the
contrary was offered at the hearing.
Accordingly, the Russell Circuit Court entered an order dismissing
Copley’s complaint, citing Ms. Brockman’s undisputed testimony and Copley’s
failure to demonstrate that any recorded restrictions applied to the Passmores’
property. Specifically, the circuit court held that the restrictions upon which
Copley predicated his complaint are not of record with the Russell County Clerk
and have never been attached to the Passmores’ real property. Thus, the document
titled “Restriction of Torch Ridge Farm” could not be used to restrict the
Passmores’ use of the subject real property. This appeal followed.
We commence with the language of CR 12.03:
After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on such motion, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided for in Rule 56, and all parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56.
-4- Because the circuit court specifically stated that it was treating the motion as one
for summary judgment, we review its judgment under standards appropriate to CR
56. As outlined in Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996),
appellate courts review grants of summary judgment to determine whether the trial
court correctly found that there were no genuine issues as to any material fact and
that the moving party was entitled to judgment as a matter of law. The appellate
court need not defer to the trial court since factual findings are not in issue.
Goldsmith v. Allied Building Components, Inc., 833 S.W.2d 378, 381 (Ky. 1992).
“The record must be viewed in a light most favorable to the party opposing the
motion for summary judgment and all doubts are to be resolved in his favor.”
Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991).
Summary “judgment is only proper where the movant shows that the adverse party
could not prevail under any circumstances.” Id. (citing Paintsville Hospital Co. v.
Rose, 683 S.W.2d 255 (Ky. 1985)). Under these criteria, summary judgment is
appropriate “[o]nly when it appears impossible for the nonmoving party to produce
evidence at trial warranting a judgment in his favor . . . .” Huddleston v. Hughes,
843 S.W.2d 901, 903 (Ky. App. 1992) (citing Steelvest, supra). With these
principles in mind, we turn to a review of Copley’s argument that summary
judgment was entered prematurely.
-5- Although Copley now argues that judgment was inappropriate where
no discovery was submitted concerning the principal issues in dispute, the record is
devoid of any suggestion that Copley was denied the opportunity to present
evidence in support of his claim. As the Supreme Court of Kentucky explained in
Hoke v.
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RENDERED: AUGUST 6, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0520-MR
JAMES E. COPLEY APPELLANT
APPEAL FROM RUSSELL CIRCUIT COURT v. HONORABLE VERNON MINIARD, JR., JUDGE ACTION NO. 19-CI-00285
BARRY PASSMORE AND JACQUELINE PASSMORE APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: JONES, MAZE, AND TAYLOR, JUDGES.
MAZE, JUDGE: Appellant James E. Copley appeals from the summary dismissal
of his complaint alleging that appellees Barry and Jacqueline Passmore are in
violation of restrictive covenants encumbering property they own in the Edwin
Robertson Farm Division. Because the circuit court considered matters outside the pleadings, it appropriately treated the CR1 12.03 motion to dismiss as one for
summary judgment. We affirm the entry of summary judgment dismissing
Copley’s complaint.
Copley, who owns property in the same subdivision, filed a complaint
in Russell Circuit Court alleging that the Passmores’ use of their property for the
storage of wrecked and junked vehicles was in direct violation of a document
styled “Restriction on Torch Ridge Farm.” That document, a copy of which was
appended to the complaint, enumerated restrictions which included the following
which are pertinent to this appeal:
1. No junk or inoperative automobiles shall be allowed upon the premises except in enclosed structures where the same shall not be visible to adjoining property owners or from the public right of way.
2. No noxious or offensive trade or activity shall be carried on upon the real estate nor shall anything be done thereon which may become and [sic] annoyance to neighborhood.
3. The real estate shall not be used or maintained as a dumping ground for rubbish, etc. . . .
Copley alleged that the storage of wrecked and junk vehicles on the Passmores’
property for the purpose of disassembly of the vehicles and sale of their parts
directly violated those restrictions. Notably, the copy of the Torch Ridge Farm
1 Kentucky Rule of Civil Procedure.
-2- Restriction appended to the complaint does not contain a stamp or other indication
that it had been filed of record in the office of the Russell County Clerk. In
addition, Copley alleged that the Edwin Robertson Farm subdivision had at times
been referred to in the Russell County Clerk’s Office, and elsewhere, as “Torch
Ridge Farm,” “Torch Ridge Farm Division,” “Robertson Farm,” “Robertson Farm
Division,” and “Edwin Robertson Tract.”
After filing an answer and counterclaim, the Passmores filed a motion
to dismiss stating that no restrictions or covenants appear or are referenced in their
deed or chain of title to the property. Further, they alleged that the Torch Ridge
Farm restrictions appended to the complaint had never been filed in the Russell
County Clerk’s office. Finally, the Passmores asserted that under the merger
doctrine, all prior statements and agreements concerning their property merged into
the deed and all parties are thereafter bound by that instrument.
The trial court subsequently conducted a hearing on the motion at
which only the Russell County Clerk, Sue Brockman, testified. After verifying the
authenticity of two affidavits she had previously filed in the case, Ms. Brockman
reaffirmed that the Russell County Clerk’s office stamps each and every document,
including lists of restrictions, with a stamp identifying the date the document was
recorded and its location in the clerk’s office. She also testified that she had
searched and examined the records of the Russell County Clerk’s office and found
-3- no restrictions or covenants on file for either the “Edwin Robertson Farm
Division” or “Torch Ridge Farm.” Ms. Brockman also stated that she had
examined the document titled “Restriction of Torch Ridge Farm” which had been
appended to Copley’s complaint and stated that she could verify that the document
had never been filed in the Russell County Clerk’s office. No evidence to the
contrary was offered at the hearing.
Accordingly, the Russell Circuit Court entered an order dismissing
Copley’s complaint, citing Ms. Brockman’s undisputed testimony and Copley’s
failure to demonstrate that any recorded restrictions applied to the Passmores’
property. Specifically, the circuit court held that the restrictions upon which
Copley predicated his complaint are not of record with the Russell County Clerk
and have never been attached to the Passmores’ real property. Thus, the document
titled “Restriction of Torch Ridge Farm” could not be used to restrict the
Passmores’ use of the subject real property. This appeal followed.
We commence with the language of CR 12.03:
After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on such motion, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided for in Rule 56, and all parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56.
-4- Because the circuit court specifically stated that it was treating the motion as one
for summary judgment, we review its judgment under standards appropriate to CR
56. As outlined in Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996),
appellate courts review grants of summary judgment to determine whether the trial
court correctly found that there were no genuine issues as to any material fact and
that the moving party was entitled to judgment as a matter of law. The appellate
court need not defer to the trial court since factual findings are not in issue.
Goldsmith v. Allied Building Components, Inc., 833 S.W.2d 378, 381 (Ky. 1992).
“The record must be viewed in a light most favorable to the party opposing the
motion for summary judgment and all doubts are to be resolved in his favor.”
Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991).
Summary “judgment is only proper where the movant shows that the adverse party
could not prevail under any circumstances.” Id. (citing Paintsville Hospital Co. v.
Rose, 683 S.W.2d 255 (Ky. 1985)). Under these criteria, summary judgment is
appropriate “[o]nly when it appears impossible for the nonmoving party to produce
evidence at trial warranting a judgment in his favor . . . .” Huddleston v. Hughes,
843 S.W.2d 901, 903 (Ky. App. 1992) (citing Steelvest, supra). With these
principles in mind, we turn to a review of Copley’s argument that summary
judgment was entered prematurely.
-5- Although Copley now argues that judgment was inappropriate where
no discovery was submitted concerning the principal issues in dispute, the record is
devoid of any suggestion that Copley was denied the opportunity to present
evidence in support of his claim. As the Supreme Court of Kentucky explained in
Hoke v. Cullinan, 914 S.W.2d 335, 337 (Ky. 1995), “[p]rovided litigants are given
an opportunity to present evidence which reveals the existence of disputed material
facts, and upon the trial court’s determination that there are no such disputed facts,
summary judgment is appropriate.” In order to succeed on his claim, Copley bore
the burden of establishing the existence of recorded restrictions on the use of the
Passmores’ property. “[R]estrictive covenants will be enforced under Kentucky
law only when the restriction is placed in a recorded instrument, actual notice of a
purported restriction notwithstanding.” Oliver v. Schultz, 885 S.W.2d 699, 701
(Ky. 1994). Thus, because no restrictions appear or are referenced in the
Passmores’ deed or chain of title, Copley could succeed in enforcing the
restrictions set out in the Torch Ridge Farm instrument only if it had been
recorded.
Once the affidavits and testimony of Ms. Brockman established that
the Torch Ridge Farm instrument does not appear of record in the office of the
Russell County Clerk, it was incumbent upon Copley to produce some evidence to
the contrary. Not only did Copley fail to do so, he did not object to the timing of
-6- the hearing or request additional time to marshal his evidence. Even if the Torch
Ridge Farm restrictions were to be held applicable to the Edwin Robertson Farm
subdivision, Copley’s failure to offer some evidence creating a genuine issue as to
whether those restrictions had in fact been recorded is fatal to his claim. On this
state of the record, we have no difficulty in concluding that entry of summary
judgment was entirely appropriate.
Accordingly, we affirm the judgment of the Russell Circuit Court
dismissing the complaint.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
Joel R. Smith Derrick G. Helm Jamestown, Kentucky Jamestown, Kentucky
-7-