John W. Mahaffey v. Nelda K. Wyatt

• Court: Court of Appeals of Kentucky
• Decided: July 1, 2021
• Docket: 2019 CA 001309
• Status: Unknown

Opinion

RENDERED: JULY 2, 2021; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2019-CA-1309-MR

JOHN W. MAHAFFEY AND KIM MAHAFFEY APPELLANTS

APPEAL FROM CUMBERLAND CIRCUIT COURT v. HONORABLE DAVID L. WILLIAMS, JUDGE ACTION NO. 16-CI-00065

NELDA K. WYATT; NANCY W. WATSON; AND TOM WATSON APPELLEES

AND

NO. 2019-CA-1355-MR

NELDA K. WYATT; NANCY W. WATSON; AND TOM WATSON CROSS-APPELLANTS

CROSS-APPEAL FROM CUMBERLAND CIRCUIT COURT v. HONORABLE DAVID L. WILLIAMS, JUDGE ACTION NO. 16-CI-00065

JOHN W. MAHAFFEY AND KIM MAHAFFEY CROSS-APPELLEES OPINION VACATING AND REMANDING APPEAL NO. 2019-CA-1309-MR AND AFFIRMING CROSS-APPEAL NO. 2019-CA-1355-MR

** ** ** ** **

BEFORE: COMBS, DIXON, AND TAYLOR, JUDGES.

TAYLOR, JUDGE: John W. Mahaffey and Kim Mahaffey bring Appeal No.

2019-CA-1309-MR and Nelda K. Wyatt, Nancy W. Watson, and Tom Watson

bring Cross-Appeal No. 2019-CA-1355-MR from an August 9, 2019, Order of

Dismissal of the Cumberland Circuit Court of the Mahaffeys’ claims for breaching

covenants in a general warranty deed. We vacate and remand Appeal No. 2019-

CA-1309-MR and affirm Cross-Appeal No. 2019-CA-1355-MR.

By a general warranty deed dated April 13, 2015, Wyatt and the

Watsons conveyed to the Mahaffeys a 2.03-acre tract of undeveloped real property

located in Cumberland County. Before the conveyance, Tom Watson disclosed to

the Mahaffeys that three or four graves were located upon the 2.03-acre tract.

At the time of the conveyance, the property was in a natural state and

was overgrown with trees and brush. The Mahaffeys initially removed many of

the trees and cleared the tract for installation of a septic system, water line, and

electrical line. The Mahaffeys intended to eventually build a residence but were

temporarily staying in a camper located upon the property.

-2- The Mahaffeys eventually sought approval from the Cumberland

County Health Department for installation of the septic system. Upon inspection,

officials from the health department discovered additional graves upon the 2.03-

acre tract. In particular, the health department identified 10 or more additional

graves that were marked by archaic fieldstones. Because of the location of these

additional graves, the health department required the septic system, including

lateral lines, to be located seventy feet from all graves. The Mahaffeys were

compelled to find a location for the sewer system that complied with the health

department mandate, which they did.1

The Sheriff of Cumberland County also contacted the Mahaffeys

concerning the graves upon the 2.03-acre tract. According to the Mahaffeys, the

sheriff informed them that he had complaints that the Mahaffeys were disturbing

graves located on the property and that people wanted him to “lock them up.” The

Mahaffeys eventually met with three individuals, David Arms, Brookie Stalcup,

and Grady Holman, who informed the Mahaffeys that there were additional graves

of unknown number located on the property.

The Mahaffeys then had a survey conducted to delineate the

boundaries of the burial grounds upon the 2.03-acre tract. The Mahaffeys hired

1 While clearing the property, John Mahaffey maintained that he stayed at least seventy feet away from the three visible graves thereupon.

-3- Joe Leftwich to perform the survey. In his deposition, Leftwich stated that he

observed numerous fieldstones and sunken ground consistent with old burials upon

the property. Leftwich had received assistance from Arms, who personally showed

Leftwich where graves were believed to be located on the property but were no

longer visible due to the Mahaffeys’ inadvertent excavation. When completed,

Leftwich’s plat of the burial grounds delineated the boundaries thereof and

determined the burial grounds comprised .26 acres of the entire tract.

On August 22, 2016, the Mahaffeys filed a complaint in the

Cumberland Circuit Court against Wyatt and the Watsons. Therein, the Mahaffeys

claimed:

2. There is located on the conveyed real estate numerous graves over an area consisting of at least 0.26 acres which use constitutes a dedication of the area as a graveyard or cemetery and constitutes an easement for burial purposes.

3. Before the [Mahaffeys] were aware of the extent of the dedication or easement, they commenced to prepare the site for its intended purpose as a home site, and as a result, expended substantial sums in preparation, but then were required to cease preparation and use as a home site, because of the existence of the cemetery or graveyard.

4. [Wyatt and the Watsons], by conveying the real estate encumbered by a graveyard, have breached the covenants encompassed by the general warranty clause in the deed delivered to the [Mahaffeys], specifically breaching the covenants of seizin and title.

-4- 5. Pursuant to KRS [Kentucky Revised Statutes] 381.710, any area used for burial is deemed or dedicated as a burial ground, and therefore, the area conveyed by the subject deed is less than ninety percent (90%) of the area warranted in the deed, breaching the warranty of acreage.

August 22, 2016, Verified Complaint at 3. Wyatt and the Watsons eventually filed

an answer.

After the parties completed discovery, Wyatt and the Watsons filed a

motion for summary judgment. They argued that no material issue of fact existed

and that they were entitled to judgment as a matter of law. In particular, Wyatt and

the Watsons contended that Mahaffeys “cannot prove with sufficient evidence . . .

the boundaries or the number of graves of the purported burial ground.” Motion

for Summary Judgment at 5. Wyatt and the Watsons further argued that the

Mahaffeys’ land surveyor, Leftwich, rendered an unreliable and unsupported

survey of the burial grounds. And, Wyatt and the Watsons maintained that the

existence of graves upon the 2.03-acre tract did not constitute a breach of the

general warranty deed. The Mahaffeys responded that the survey and plat

completed by Leftwich clearly demonstrated the boundary of the burial grounds

and constituted competent evidence. Additionally, the Mahaffeys argued that

Wyatt and the Watsons breached various covenants contained in the general

warranty deed.

-5- By Order of Dismissal entered August 9, 2019, the circuit court

dismissed the Mahaffeys’ complaint without prejudice. The court reasoned that

the Mahaffeys “have been unable to prove with sufficient evidence the size of the

purported burial ground and the existence of any specific number of graves on the

property in question.” Order of Dismissal at 1. Curiously, the order did not

address Wyatt and the Watsons’ motion for summary judgment nor did the court

conduct a hearing thereon.

The Mahaffeys filed this appeal, and Wyatt and the Watsons filed a

cross-appeal from the Order of Dismissal. We shall address each seriatim.

STANDARD OF REVIEW

The standard of review on appeal of an order granting summary

judgment is “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.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996) (citing

Kentucky Rules of Civil Procedure (CR) 56.03). Upon a motion for summary

judgment, all facts and inferences in the record are viewed in a light most favorable

to the nonmoving party and “all doubts are to be resolved in his favor.” Steelvest,

Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991) (citation

omitted). Thus, if there are no factual issues, a summary judgment looks only to

questions of law, and we review a trial court’s decision to grant summary judgment

-6- de novo. Brown v. Griffin, 505 S.W.3d 777, 781 (Ky. App. 2016); see also

Blackstone Mining Co. v. Travelers Ins. Co., 351 S.W.3d 193, 198 (Ky. 2010), as

modified on denial of reh’g (Nov. 23, 2011).

APPEAL NO. 2019-CA-1309-MR

The Mahaffeys argue that the circuit court erroneously rendered

summary judgment dismissing their complaint. In particular, the Mahaffeys

contend that they presented sufficient evidence concerning the size of the burial

ground to withstand summary judgment. In support thereof, the Mahaffeys point

to Leftwich’s survey of the burial ground that established the boundary lines of the

burial ground. The Mahaffeys also reference Leftwich’s deposition testimony and

the deposition testimony of Arms. The Mahaffeys maintain that Arms stated that

he and his grandfather frequently visited the burial grounds upon the 2.03-acre

tract and that he had continued to visit the burial grounds after his grandfather’s

death. The Mahaffeys also point to Arms’ statements that he was familiar with the

extent of the burial grounds located upon the property.

Conversely, Wyatt and the Watsons argue that the Mahaffeys failed to

“present substantial, credible evidence that purported graves cover any specific

area.” Wyatt and the Watsons’ Brief at 12. Wyatt and the Watsons argue that the

survey performed by Leftwich is not a lawful survey because Leftwich failed to

“start from at least two (2) monuments.” Wyatt and the Watsons’ Brief at 15.

-7- Also, Wyatt and the Watsons contend that Leftwich’s survey is improper because

Leftwich included an area thereupon that was based upon Arms’ statements. And,

as to Arms’ depositional testimony, Wyatt and the Watsons believe that such

testimony cannot constitute competent evidence because Arms is not an expert in

forensics.

In this case, the record included the deposition testimony of Leftwich,

a licensed professional surveyor, and a plat, completed by him, depicting the

boundaries of the burial grounds upon the 2.03-acre tract. According to Leftwich’s

deposition, the survey of the burial grounds was based, in part, upon Leftwich’s

observations of fieldstones and sunken ground consistent with the dimensions of a

grave and, in part, upon Arms’ statements made to Leftwich. When Leftwich was

actually performing the survey, Arms was physically present and pointed out to

Leftwich a particular area where he believed burial grounds were located but were

no longer visible due to excavation activities carried out by the Mahaffeys. On the

actual plat, Leftwich indicated this area by specially highlighting same and

indicting that this area was based upon “parol evidence” of Arms. As to the lack of

two monuments, Leftwich explained that the survey was not based upon a grant of

land by deed where monuments would be relevant. Rather, Leftwich explained

that no such monuments would exist when initially locating boundaries of old

burial grounds.

-8- And, we again note that the circuit court did not conduct a hearing or

make any findings and conclusions as to the expert testimony of Leftwich.

Notably, the circuit court never concluded that Leftwich did not qualify as an

expert witness or that his expert opinions were inadmissible. Kentucky Rules of

Evidence (KRE) 104, KRE 702, KRE 703; Goodyear Tire & Rubber Co. v.

Thompson, 11 S.W.3d 575, 577-79 (Ky. 2000). In the absence thereof and in view

of the fact that Leftwich is a licensed surveyor, we believe his deposition testimony

and survey were competent and probative evidence. His deposition testimony

stands unrefuted in the record of this case. And, while Arms cannot offer any

expert opinions, he may, of course, testify concerning his personal knowledge of

the property and burial grounds. KRE 602; KRE 701. In his deposition, it is clear

that Arms frequently visited the burial grounds over his lifetime. Thus, he

undoubtedly observed the burial grounds over many years and can testify as to the

extent of the burial grounds based upon his personal observations.

Considering Leftwich’s testimony and survey alone, we believe the

Mahaffeys presented sufficient evidence as to the boundary or size of the burial

grounds upon the 2.03-acre tract to create a genuine issue of material fact and

survive summary judgment. In short, we are compelled to conclude that the circuit

court erred by finding that the Mahaffeys failed to prove the size of the burial

grounds.

-9- Given that the order on appeal dismisses the case without any findings

or legal analysis, we do not reach the merits of the underlying claims, including

any alleged breach of covenants in the general warranty deed. This Opinion

narrowly addresses whether the Mahaffeys presented sufficient evidence as to the

size of the burial grounds to survive summary judgment, as the inadequacy of such

evidence appears to be the basis for the circuit court’s order of dismissal. Thus, we

remand for a trial on the merits and any other necessary proceedings to resolve the

Mahaffeys’ claims for relief.

CROSS-APPEAL NO. 2019-CA-1355-MR

We have reviewed Wyatt and the Watsons’ cross-appellants’ brief;

however, we were unable to discern any issue of error raised in the cross-appeal.

In Wyatt and the Watsons’ prehearing statement, they raised several issues of

error; however, none of these was included or addressed in their brief. See Sallee

v. Sallee, 142 S.W.3d 697, 698 (Ky. App. 2004). Hence, we summarily affirm the

cross-appeal.

In sum, we are of the opinion that material issues of fact exist that

precluded summary judgment and that the circuit court erred by dismissing the

Mahaffeys’ complaint.

-10- For the foregoing reasons, we vacate and remand Appeal No. 2019-

CA-1309-MR for proceedings consistent with this Opinion and affirm Cross-

Appeal No. 2019-CA-1355-MR.

ALL CONCUR.

BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEES:

Bobby H. Richardson Harlan E. Judd, III Glasgow, Kentucky Bowling Green, Kentucky

-11-