Michael S. Karger v. Martin Carr

• Court: Court of Appeals of Kentucky
• Decided: July 11, 2024
• Docket: 2023 CA 000879
• Status: Unknown

Opinion

RENDERED: JULY 12, 2024; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0879-MR

MICHAEL S. KARGER AND JODY GILL THOMAS APPELLANTS

APPEAL FROM WHITLEY CIRCUIT COURT v. HONORABLE DANIEL BALLOU, JUDGE ACTION NO. 22-CI-00306

MARTIN CARR; MARANDA CARR; AND WHITLEY COUNTY APPELLEES

OPINION AFFIRMING

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BEFORE: COMBS, A. JONES, AND KAREM, JUDGES.

KAREM, JUDGE: Appellants, Michael S. Karger and Jody Gill Thomas, appeal

from the Whitley Circuit Court’s order granting summary judgment to Appellees,

Martin and Maranda Carr. The circuit court awarded $201,888.33, less $50,000 in

insurance proceeds to the Carrs. The $50,000.00 was awarded to Karger and

Thomas as a payoff of the land contract between the parties. Upon receipt of said payoff, the court required Karger and Thomas to convey their interest in real

property to the Carrs. Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On March 1, 2011, the Carrs entered into a land contract with Karger

for the fee-simple purchase of a house and approximately six (6) acres of land

located in Williamsburg, Kentucky. The purchase price was $65,000.00, with

$5,000.00 as a down payment and $60,000.00 payable at eight percent (8%)

interest amortized over thirty (30) years with a twelve (12) year balloon payment

due on March 1, 2023. Additionally, the land contract stated the $440.26 monthly

payment amount included 1/12 of the estimated annual taxes and insurance for the

dwelling. Under the land contract, which was not recorded, Karger agreed to give

possession of the property to the Carrs on March 1, 2011.

On August 2, 2022, Karger and Thomas filed a verified complaint

against the Carrs for declaratory relief to enjoin waste, to replevy realty, and to

receive an award of treble damages for loss of value of realty. Karger and Thomas

alleged that, because of the Carrs’ alleged waste of the realty, the fair market value

of the realty had decreased from more than $65,000.00 to $25,000.00.

Additionally, Karger and Thomas stated in the complaint that they anticipated that

the Carrs would be unable to make the balloon payment due in March 2023.

-2- Thereafter, on September 7, 2022, the subject house burned down in a

fire, resulting in a total loss. At all relevant times, the property was insured by a

rental property insurance policy issued by USAA Casualty Insurance Company

(“USAA”). The policy’s coverage resulted in available monies of $251,888.33.

Ultimately, on December 20, 2022, USAA filed an interpleader complaint stating

that Karger, Thomas, and the Carrs had all asserted a claim for the insurance funds

and that USAA was unsure which party should receive the insurance payout. At

no point did USAA allege arson against any party in the case. Moreover, the fire

report contained no allegations of arson, and no criminal charges were filed

concerning the fire.

On January 6, 2023, the circuit court entered an order granting

USAA’s motion to file an interpleader complaint and requiring USAA to pay the

sum of $251,888.33 to the clerk of court to be held in an interest-bearing account.

On January 20, 2023, the circuit court entered an order dismissing USAA from the

lawsuit.

On February 14, 2023, the Carrs filed a motion for summary

judgment, requesting to be paid the insurance proceeds being held with the court,

less the payoff amount owed to Karger and Thomas, and further requesting a deed

to the property upon payoff. The trial court granted summary judgment in favor of

-3- the Carrs, and Karger and Thomas filed a motion to alter, amend, or vacate. The

circuit court denied the motion, and this appeal followed.

We will discuss further facts as they become relevant.

ANALYSIS

1. Standard of Review

Kentucky Rule of Civil Procedure (“CR”) 56.03 authorizes a motion

for summary judgment “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.” A court must view the record “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) (citations omitted). However, as the

Kentucky Supreme Court stated, “[i]f the 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.” Ross v. Powell, 206 S.W.3d 327, 330 (Ky. 2006), as

corrected (Jan. 31, 2007). Further, “[w]hether summary judgment is appropriate is

a legal question involving no factual findings, so the trial court’s grant of summary

-4- judgment is reviewed de novo.” McKinley v. Circle K, 435 S.W.3d 77, 79 (Ky.

App. 2014) (citation omitted).

2. Discussion

The Appellants’ sole argument on appeal is that a genuine issue of

material fact exists regarding the payoff amount because the trial court based its

summary judgment on inadmissible evidence of a message between Maranda Carr

and Karger. We disagree. It is axiomatic that to defeat a summary judgment

motion, the non-moving party must present affirmative evidence demonstrating a

genuine issue of material fact necessitating a trial. Neal v. Welker, 426 S.W.2d

476, 479 (Ky. 1968). If the non-moving party fails to do so, the court may grant

summary judgment in favor of the moving party. Id.

In this case, Karger and Thomas were given ample opportunity to

provide evidence regarding the payoff amount but never did so. Indeed, Karger

and Thomas did not offer any information or evidence to the trial court regarding

the payoff amount.

Alternatively, in support of the Carr’s summary judgment motion,

they provided Maranda Carr’s affidavit stating a $50,000.00 payoff amount.

Additionally, the Carrs provided a copy of a message between Karger and Maranda

Carr saying, “Maranda. [B]y my calculations[,] the balance after the July payment

was $51,101.71 with interest from July 1. However, as I said, I will accept a

-5- payoff of $50,000.00. Faxing is difficult as that is an old technology. It would be

better if I could email. Mike.”

Thus, in ruling on the Carr’s summary judgment motion, the trial

court had Maranda Carr’s affidavit stating the payoff amount as she believed it to

be. Moreover, such an amount was supported by Karger’s message stating he

would accept a $50,000.00 payoff. Karger and Thomas offered nothing to dispute

this amount. Because Karger and Thomas did not present any proof or even a bare

allegation as to the payoff amount, the trial court properly held there were no

genuine issues of material fact, and summary judgment was appropriate.

CONCLUSION

For the foregoing reasons, we affirm the Whitley Circuit Court’s

order.

ALL CONCUR.

BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEES:

James H. Wren, II Sarah Tipton Reeves Williamsburg, Kentucky Corbin, Kentucky

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