M E Wood v. Bruce Clewell

• Court: Court of Appeals of Kentucky
• Decided: July 11, 2024
• Docket: 2023 CA 001019
• Status: Unknown

Opinion

RENDERED: JULY 12, 2024; 10:00 A.M. TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2023-CA-1019-MR

M.E. WOOD APPELLANT

APPEAL FROM LOGAN CIRCUIT COURT v. HONORABLE JOE W. HENDRICKS, JR., JUDGE ACTION NO. 21-CI-00075

BRUCE CLEWELL; COUNTY OF LOGAN; VICTOR PERRY; AND W.D. COMPASS APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: CETRULO, GOODWINE, AND KAREM, JUDGES.

CETRULO, JUDGE: Appellant M.E. Wood (“Redeemer Wood”) appeals a Logan

County judgment that found he did not properly exercise his statutory right of

redemption and confirmed the sale of a property to Appellee Bruce Clewell

(“Purchaser Clewell”). After review, we affirm the Logan Circuit Court. FACTS & PROCEDURAL BACKGROUND

This case arises from the purchase of delinquent property tax liens on

two vacant lots in Logan County (“the property”), previously owned by Appellee

Victor Perry (“Perry”).1 After Purchaser Clewell petitioned for foreclosure on the

liens, he obtained an in rem judgment against Perry in September 2022. The

property appraised at $50,000, but on October 22, the Master Commissioner sold

the property to the highest bidder, Purchaser Clewell, for $1,000. The sale was

confirmed on November 7. That same day, Perry executed an assignment of his

right of redemption to Redeemer Wood.

In February 2023, Redeemer Wood tendered $1,100 (purchase price

plus 10% interest) to the county clerk to exercise his right of redemption and later

paid an additional $54.09 for reimbursement of the 2022 taxes. Meanwhile,

Purchaser Clewell paid property taxes and other expenses incurred to maintain the

property, including labor and fuel expended to remove hazards from the property.

The Master Commissioner filed a motion reporting the redemption and requesting

an order seeking a redemption determination pursuant to Kentucky Revised Statute

(“KRS”) 426.530. Both Purchaser Clewell and Redeemer Wood filed responses

and claimed ownership of the property.

1 Purchaser Clewell is the only named appellee participating in this appeal.

-2- In June 2023, more than six months after the sale, both Purchaser

Clewell and Redeemer Wood agreed to an evidentiary hearing on July 18, 2023.

At that hearing, only Purchaser Clewell, pro se, and the attorney for Redeemer

Wood2 testified. Purchaser Clewell testified that he recently paid $176 in

maintenance and repair costs on the property, but that Redeemer Wood had not

reimbursed him for those expenses nor requested an accounting of those fees.

Redeemer Wood argued he attempted to discover any additional fees owed, but

that Purchaser Clewell did not volunteer those fees. Redeemer Wood deposited

$176 with the county clerk after the evidentiary hearing, more than six months

after the sale of the property.

In August 2023, the circuit court held:

In this case, there is no dispute that [Redeemer] Wood, who owned the right of redemption, made no effort to ascertain the amounts due to [Purchaser] Clewell for the taxes or maintenance owed on the property until after the redemption period expired. Further, there is no evidence to indicate [Purchaser] Clewell did anything to obstruct or hinder [Redeemer] Wood from obtaining that information within the six month redemption period. Accordingly, the Court finds that the redemption was not exercised and the sale of the property to [Purchaser] Clewell is confirmed.

Five days later, the circuit court entered an Amended Findings of

Facts and Conclusions of Law that repeated its previous finding. The court entered

2 Although M.E. Wood is the named party, her husband, Jack Wood, legally represented her throughout these proceedings and testified on her behalf.

-3- this amended order because the previous order was entered before Redeemer Wood

filed her reply. After review of this new pleading, the circuit court remained

unpersuaded and “still conclude[d] that there [was] no evidence in the record

showing where [Redeemer] Wood requested [Purchaser] Clewell’s costs prior to

the expiration of the redemption period.” This appeal followed.

STANDARD OF REVIEW

On appeal, Redeemer Wood challenges the circuit court’s factual

finding that she made no effort to ascertain the amounts due to Purchaser Clewell

until after the redemption period had expired. Findings of fact by the trial court

shall not be set aside unless clearly erroneous. Kentucky Rule of Civil Procedure

(“CR”) 52.01. Erroneous facts are those not supported by substantial evidence.

Johnson v. Akers Dev., LLC, 672 S.W.3d 205, 209 (Ky. App. 2023) (citing Eagle

Cliff Resort, LLC v. KHBBJB, LLC, 295 S.W.3d 850, 853 (Ky. App. 2009)).

Additionally, Redeemer Wood argues that the circuit court erred in

confirming the sale of the property to Purchaser Clewell because she substantially

complied with the requirements of KRS 426.530 within the statutory period. She

argues that Purchaser Clewell bore the burden of informing her of his expenses and

fees before the statutory right of redemption closed. The applicable standard of

appellate review for issues of law, including statutory interpretation, is de novo.

-4- Akers Dev., 672 S.W.3d at 209 (citing Wheeler & Clevenger Oil Co., Inc. v.

Washburn, 127 S.W.3d 609, 612 (Ky. 2004)).

ANALYSIS

We start, as we did in Akers Development, supra, with the

acknowledgment that Kentucky law has long favored the right of redemption. See

id. (citing Moore v. Bishop, 49 S.W. 957 (Ky. 1899)). However, as we stated in

Akers Development, that right is not without limits, and must be exercised in the

prescribed time and manner to “redeem” the property from foreclosure. See id.

(citing Eagle Cliff Resort, 295 S.W.3d at 852). In Kentucky, that statutory time

period is set by KRS 426.530(1) which provides:

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 or her representatives may redeem it within six (6) months from the day of sale, by paying the original purchase money and ten percent (10%) per annum interest thereon, and any reasonable costs incurred by the purchaser after the sale for maintenance or repair of the property, including but not limited to utility expenses, insurance, association fees, taxes, and the costs to conform the property to the minimum standards of local nuisance code provisions and other local ordinances as authorized in KRS 65.8801 to 65.8839.

Here, Redeemer Wood argues she met these statutory requirements

before the six-month window closed. However, the circuit court disagreed. The

circuit court found that “there [was] no evidence in the record showing where

-5- [Redeemer] Wood requested [Purchaser] Clewell’s costs prior to the expiration of

the redemption period.” At the evidentiary hearing, the circuit court heard

testimony from both Redeemer Wood’s legal counsel and Purchaser Clewell.

While Redeemer Wood’s legal counsel argued he verbally requested the amount of

additional fees, Purchaser Clewell steadfastly disagreed and did not admit any such

request occurred. Our review must give due regard to the opportunity of the trial

court to judge the credibility of the witnesses. CR 52.01. This feels particularly

pertinent when parties testify to conflicting facts.

On appeal, Redeemer Wood points to numerous “inquiries” where he

requested additional fees owed. However, these inquiries appear to be either (a)

instances of oral conversations that the parties remember differently, and/or (b)

instances where Redeemer Wood informed the parties and the court that she

intended to redeem, but neglected any written request for additional fees.

Redeemer Wood does not point to any written demand by motion, email, text, or

other correspondence, requesting – before the statutory window closed – the total

of costs and fees due. As such, the circuit court was not clearly erroneous in

concluding Redeemer Wood did not sufficiently request from Purchaser Clewell

his costs prior to the expiration of the redemption period.

Next, Redeemer Wood argues that Akers Development only requires

substantial compliance with KRS 426.530, a standard she met because she paid the

-6- purchase price plus interest within six months, and Purchaser Clewell bore the

burden of informing her of remaining costs and fees he incurred. While we agree

that substantial compliance is sufficient for KRS 426.530, we disagree with the

burden shift.

Simply, KRS 426.530 requires the redeemer to pay within six months.

Implicit in that statement is the burden on the redeemer to attempt to discover what

costs and fees he or she must pay. We recognize that the redeemer is often at odds

with the purchaser whose interest is generally in retaining the property and

defeating the attempt at redemption. However, we cannot place a duty on the

purchaser that does not exist in the statute. Consistently, this Court has previously

not placed such a burden on the purchaser and instead has focused on a redeemer’s

obligation to make a good faith attempt to discern the amount owed.

In Akers Development, the redeemer made numerous requests to

ascertain the amount of additional funds owed, but the purchaser did not answer or

disclose those fees and costs before the expiration of the right of redemption. It

was this good faith attempt to discover the amount owed that proved sufficient to

meet substantial compliance within the pertinent statute. Because the redeemer

made a good faith effort to ascertain the amount owed, the circuit court determined

the redeemer met the statutory requirements even though he did not pay the fees

within the statutory window. We affirmed. 672 S.W.3d 205.

-7- Similarly, Akers Development discussed Moore v. Bishop:

In Moore, a homeowner attempted to pursue his right to redeem but “by some mistake” was nine dollars short. The Court determined that the debtor will be allowed to complete the redemption after the expiration of the time allowed, where he made a good faith attempt to redeem in time, but by mistake deposited a few dollars less than the amount due.

Akers Dev., 672 S.W.3d at 209 (citing Moore, 49 S.W. at 957-58).

Again, it is this good faith attempt to ascertain the amount of costs and

fees owed before the expiration of the statutory right of redemption that

distinguishes Akers Development and Moore from the matter before us. Redeemer

Wood did not establish that she made a good faith request prior to the evidentiary

hearing, i.e., prior to the right of redemption window closing. Although there were

earlier dates offered by the circuit court for an evidentiary hearing, Redeemer

Wood declined those and sought a continuance in April. Thereafter, in July, while

it was the first time there was any evidence of other costs presented by Purchaser

Clewell, it was also the first time that there was any record of a request for other

costs by Redeemer Wood. Of course, at this point, it was beyond the six-month

statutory period. Redeemer Wood paid an additional $176 after that hearing, but

the circuit court found it was too late. Redeemer Wood now argues that the circuit

court’s schedule prevented an earlier hearing date, but an evidentiary hearing is not

the only opportunity to make a good faith attempt to request money owed.

-8- In Akers Development, the request was made, in part, by text. There,

the parties argued about whether a text was sufficient, or if a formal court hearing

or pleading is required to establish a good faith request. To answer this question,

this Court discussed an unpublished case, Hamilton Holdings LTD. v. Appalachian

Royalty Trust, LLC, No. 2019-CA-001556-MR, 2020 WL 2790417 (Ky. App. May

29, 2020).3

[The purchaser in Akers Development] argues that – like the trust in Hamilton Holdings – to ascertain the “reasonable costs incurred,” a redeemer should either a) request through legal counsel, b) file a motion with the court, and/or c) request a hearing. While those are certainly reasonable (and recommended) steps, Hamilton Holdings did not create such a rule. The parties in Hamilton Holdings handled all negotiations through legal counsel and the facts did not establish that the parties had personal contact at any stage of the process. That is distinguishable from the situation before us. Here, it was reasonable for [the redeemer] to request the information directly from [the purchaser] considering the months of negotiations that had already occurred between the two parties. Had those negotiations not happened, maybe more formal legal steps would have been necessary, but we address only the facts before us.

Akers Dev., 672 S.W.3d at 210.

Again, we address the facts before us. In this case, the Master

Commissioner filed a report informing the circuit court of Purchaser Clewell’s

3 Then, as now, we cite this unpublished opinion as persuasive, not binding, authority. See Kentucky Rule of Appellate Procedure 41(A).

-9- $1,100 payment. The Master Commissioner further noted that Purchaser Clewell

might have a claim for other reasonable costs incurred and filed this with the

circuit court in February. There is no indication in Redeemer Wood’s response

that she sought to determine those other costs. Here, we have no written attempts,

formal or otherwise, of Redeemer Wood requesting the amount owed within the

6-month statutory window. The two parties testified that they had numerous

interactions and direct communication. Thus, a text, email, or letter of any kind

would have been a reasonable method of requesting those fees directly. We note,

although, it would be best practice for a redeemer to make a good faith effort to

ascertain the “reasonable costs incurred” through a formal written request, by

motion, or by requesting a hearing before the expiration of the statutory window.

To be clear, we are not creating a new requirement of strict

compliance with KRS 426.530. We are only reiterating that a redeemer must make

good faith efforts to ascertain and pay all costs and fees within the statutory

window in order to establish the required substantial compliance. See Moore, 49

S.W. at 957-58; see also Akers Dev., 672 S.W.3d at 209-10.

Therefore, the circuit court’s factual finding that Redeemer Wood did

not make a good faith request for fees and costs owed, within the statutory

window, was not clearly erroneous. As Redeemer Wood did not make a good faith

attempt to timely ascertain the amount owed, she did not substantially comply with

-10- KRS 426.530. Thus, the circuit court did not err in confirming the sale of the

property to Purchaser Clewell.

CONCLUSION

In light of the foregoing, we AFFIRM the Logan Circuit Court.

ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE BRUCE CLEWELL: Jack D. Wood Louisville, Kentucky Bruce Clewell, pro se Russellville, Kentucky

-11-