Tamara L. Cooper Hart v. Kendall Back

• Court: Court of Appeals of Kentucky
• Decided: August 1, 2025
• Docket: 2024-CA-1245
• Status: Unpublished

Opinion

RENDERED: AUGUST 1, 2025; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2024-CA-1245-MR

TAMARA L. COOPER HART; JENNIFER CABA; MICHAEL CABA; AND NANCY CASSIDY APPELLANTS

APPEAL FROM MONTGOMERY CIRCUIT COURT v. HONORABLE ELIZABETH H. DAVIS, JUDGE ACTION NO. 23-CI-90032

KENDALL BACK AND MARI LYNN BACK APPELLEES

OPINION REVERSING

** ** ** ** **

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

COMBS, JUDGE: This matter involves a dispute over the correct interpretation

and application of a restrictive covenant running with the parcels of land belonging

to adjacent landowners in rural Montgomery County. That covenant restricts the use of property to residential purposes and specifically forbids commercial uses --

with an exception for farming or agricultural purposes.

The Appellants are Tamara L. Cooper Hart, Nancy Cassidy, Michael

Caba, and Jennifer Caba (wife of Michael Caba). They filed a declaratory action

in Montgomery Circuit Court seeking to enforce the restrictive covenant to prohibit

the operation of a commercial enterprise -- a venue for large-scale social events --

upon the Backs’ (the Appellees’) property. The Backs, also subject to the terms of

the restrictive covenant, are the operators of the “events” operation.

After ultimately holding an evidentiary hearing, the circuit court

entered an injunction in favor of the Backs, concluding that their conduct of the

events venue did not violate the restrictive covenant. The Appellants now

challenge that injunction in this appeal.

After our review of the rather complicated procedural record, we

reverse the judgment of the Montgomery Circuit Court.

In February 2023, the Appellants filed a declaratory judgment action

against the Backs, their neighbors. They alleged that the Backs’ operation of the

social event venue violated a restrictive covenant included in the conveyance of the

parties’ property. They sought an injunction precluding this use of the property.

In their response, the Backs denied that their operation of the venue

violated the deed restriction. They also filed a counterclaim alleging that Hart,

-2- Cassidy, and the Cabas had interfered with their “expectancy related to the

[business] venture in an attempt to destroy their business.” They sought damages

and an order enjoining Hart, Cassidy, and the Cabas “from interfering in any way

with the business being conducted” on their property. The Backs did not deny that

their property is subject to the deed restriction limiting each four-acre tract to no

more than one dwelling and specifically providing that the “property shall be used

for residential purposes only and no commercial use permitted except for farming

or agricultural purposes.” Hart, Cassidy, and the Cabas answered and denied the

allegations against them.

In May 2023, the Backs filed a motion for summary judgment. In a

memorandum filed in support of the motion, they argued that they were entitled to

judgment as a matter of law because operation of the venue, coupled with the

horticultural activities (growing flowers) being conducted on the farm, constituted

“agritourism” as defined by the provisions of KRS1 247.801. They referred the

court to correspondence from the Kentucky Department of Agriculture indicating

that “[a]gritourism, including any component listed [in the statutory provision,

specifically, weddings and ancillary events], is Agriculture.” Hart, Cassidy, and

the Cabas responded and filed their own motion for summary judgment.

1 Kentucky Revised Statutes.

-3- In their motion, Hart, Cassidy, and the Cabas argued that using

farmland to host large-scale social events for profit is plainly inconsistent with

“farming or agricultural purposes” as that phrase is used in the deed restrictions.

They explained that the statutory definition of “agritourism” is immaterial

especially where the term came into fashion long after the deed restrictions were

created to preserve farmland and to benefit the several adjoining property owners

by maintaining the area’s rural character.

In June 2023, the trial court granted judgment in favor of Hart,

Cassidy, and the Cabas. The court held that the parties are bound by the clear

meaning of the language used in the deed restrictions and that the Backs’

commercial activities on the property were inconsistent with farming or

agriculture. It also observed that weddings and other social events held at the farm

were not synonymous with the limited horticultural activities performed on the

farm. Pursuant to the provisions of our civil rule (CR)2 54.02, the trial court

designated its otherwise interlocutory judgment as final and appealable -- there

being no just cause for delay. The Backs filed a timely motion to alter, amend, or

vacate. The trial court then decided that the matter should be set for an evidentiary

hearing.

2 Kentucky Rules of Civil Procedure.

-4- In an order entered on November 22, 2023, the trial court reversed its

original conclusion after hearing extensive testimony. The court summarized

testimony provided by various witnesses. It observed that “[t]he Restrictive

Covenant provisions do not define farming/agriculture.” It concluded that the

“policy envisioned by the legislature here envisions protecting agriculture as it

evolves and is confronted by non-agricultural encroachment and it does so without

defining agriculture as a historically static definition.” The court concluded that

the Backs’ “use of the property is agricultural within the legislative policies of the

state and with [the Backs’] present use of the property it is not violative of the

Restrictive Covenant.”

On December 21, 2023, Hart, Cassidy, and the Cabas filed a motion

requesting that the court’s order be made final and appealable. By its order entered

December 27, 2023, the Montgomery Circuit Court amended its November order

to add, “[t]his Order shall be FINAL and APPEALABLE.”

Hart, Cassidy, and the Cabas filed a notice of appeal on January 10,

2024. Some days later, we ordered them to show cause why the appeal should not

be dismissed either as having been taken from an interlocutory order not properly

made final and appealable by operation of our rule of CR 54.02 or because the

appeal was not timely pursuant to the provisions of our Kentucky Rules of

Appellate Procedure (RAP) 3(A)(1). Hart, Cassidy, and the Cabas filed their

-5- response. Following our review of that response and by our order entered on

February 28, 2024, the appeal was dismissed.

On April 19, 2024, Hart, Cassidy, and the Cabas filed a motion in

Montgomery Circuit Court requesting the trial court to make its judgment final and

appealable in accordance with the specific provisions of CR 54.02. The court’s

judgment entered on September 17, 2024, provided that “there is no just reason

for delay and this is, therefore, a final and appealable judgment.” (Emphasis

added.) Hart, Cassidy, and the Cabas filed their second notice of appeal on

October 15, 2024.

On appeal, Hart, Cassidy, and the Cabas now argue that the circuit

court erred by concluding that the Backs’ use of the property as a commercial

social event venue constitutes “farming or agricultural purposes” -- in violation of

the provision restricting their property to residential use and specifically forbidding

commercial use. They contend that the concept of “agritourism,” whatever its

definition, is irrelevant to the analysis. The Backs disagree, but they also contend

that the appeal must be dismissed as untimely pursuant to our Rules of Appellate

Procedure.

We first consider whether the appeal is timely. As we explained in

our order dismissing the initial appeal, our jurisdiction may be invoked by either of

two means. Pursuant to the provisions of CR 54.01, a final judgment may be

-6- appealed if it adjudicates “all the rights of all the parties in an action or

proceeding[.]” Alternatively, where there are multiple claims or multiple parties, a

judgment may be made final under the provisions of CR 54.02. In the case of

multiple claims, the court may grant a final judgment upon one or more but less

than all of the claims by concluding that there is no just cause for a delay in

appealing its order. The judgment must recite that conclusion and indicate that

the court’s judgment is final. Strict compliance with the rule is required. Peters

v. Board of Education of Hardin County, 378 S.W.2d 638, 639 (Ky. 1964). A trial

court’s failure to include both recitations in a judgment renders it interlocutory and

nonappealable. Vorherr v. Coldiron, 525 S.W.3d 532, 540 (Ky. App. 2017).

After the initial notice of appeal was filed on January 10, 2024, we

considered both methods by which our jurisdiction is invoked. We concluded that

the trial court’s judgment of November 22, 2023, had not been made final pursuant

to the specific requirements of CR 54.02 because there was no indication that the

trial court determined that there was no just cause for delay in appealing its order

disposing of the claim filed by Hart, Cassidy, and the Cabas.

With respect to the alternative means by which our jurisdiction could

be invoked (i.e., that the trial court’s order of November 22, 2023, adjudicated all

of the rights of all the parties), we noted that Hart, Cassidy, and the Cabas had not

sufficiently addressed the issue in their response to our show cause order.

-7- Moreover, the limited record available at that time did not permit us to determine

the issue definitively. Giving Hart, Cassidy, and the Cabas the benefit of the

uncertainty, we determined that the complete circuit court record might well reveal

that a claim remained to be decided and that the circuit court simply failed to make

its judgment final pursuant to the specific requirements of the provisions of CR

54.02 by failing to recite its conclusion that there was no just cause for delay.

However, if the complete record of the circuit court demonstrated that the trial

court’s judgment of November 22, 2023, did, in fact, adjudicate all of the rights of

all of the parties, then that judgment became final and appealable at that time --

and the subsequent appeal would have been untimely.

The Backs argue that the trial court’s order of November 22, 2023,

adjudicated all claims and, consequently, that no finality language was necessary to

make the order immediately appealable. Because Hart, Cassidy, and the Cabas

failed to file a notice of appeal within 30 days, the Backs contend that the appeal is

untimely.

In reply, Hart, Cassidy, and the Cabas assert that following their

response to our show cause order, this court “explicitly found that the November

2023 Order, amended by the December 2023 Order, was interlocutory and not final

for appeal.” That is incorrect. Instead, we observed that absent the required

language indicating that the trial court intended to make an otherwise interlocutory

-8- order final and appealable pursuant to the requirements of CR 54.02, we could not

assume jurisdiction. However, we were unable to decide conclusively whether the

order of November 2023 was interlocutory because we did not have before us the

complete record of the circuit court. Moreover, we directed Hart, Cassidy, and the

Cabas to address the question of whether the trial court’s November 22, 2023,

order “adjudicat[ed] all the rights of all the parties” and was, therefore,

immediately final and appealable pursuant to CR 54.01. However, their response

omitted discussion of that issue. We observed that “[t]his circumstance invites

error and determination of this issue is not required to reach our disposition today.”

We concluded that, in either event, that our appellate jurisdiction had not been

properly invoked and dismissed the appeal.

Because they have misread our order dismissing, Hart, Cassidy, and

the Cabas have not presented an argument in support of their position that the

circuit court’s order of November 22, 2023, remained interlocutory (until it was

converted by operation of CR 54.02) because it did not adjudicate all the rights of

all the parties in the case. However, because we now have the complete circuit

court record before us, we can confirm that the Backs’ claim for damages

remained to be adjudicated. Thus, the circuit court’s order of November 22,

2023, was not immediately final and appealable. It remained interlocutory until it

was made final and appealable in accordance with the provisions of CR 54.02.

-9- Consequently, the appeal is now timely, and exercise of our appellate jurisdiction

is proper.

Like any other contract or agreement, restrictive covenants governing

the use of real property are enforceable according to their terms. Where an

agreement’s language is clear and unambiguous, it must be given effect. Frear v.

P.T.A. Industries, Inc., 103 S.W.3d 99, 106 (Ky. 2003). Kentucky views restrictive

covenants as a protection for property owners and the public rather than as a

restriction on the use of property. Highbaugh Enterprises Inc. v. Deatrick and

James Construction Co., 554 S.W.2d 878, 879 (Ky. App. 1977); Ashland-Boyd

Cnty. City-Cnty. Health Dep’t v. Riggs, 252 S.W.2d 922, 925 (Ky. 1952)

(“[R]estrictions constitute mutual, reciprocal, equitable easements of the nature of

servitudes in favor of owners of other lots of a plot of which all were once a part;

that they constitute property rights which run with the land so as to entitle

beneficiaries or the owners to enforce the restrictions[.]”). As a result, the doctrine

of strict construction does not apply. Id. “Interpretation or construction of

restrictive covenants is a question of law.” Colliver v. Stonewall Equestrian

Estates Ass’n, Inc., 139 S.W.3d 521, 523 (Ky. App. 2003); Triple Crown

Subdivision Homeowners Ass’n, Inc. v. Oberst, 279 S.W.3d 138, 141 (Ky. 2008).

Therefore, we review this matter de novo. Id.

-10- There is no question that the Backs’ property is subject to the

restrictive covenant limiting its use to “residential purposes only and no

commercial use permitted except for farming or agricultural purposes.” In 1996,

the Backs’ predecessor in title divided the property into several tracts and, by

imposing specific use restrictions, unambiguously intended to cause the area to

retain its rural character by prohibiting high-density housing and any commercial

activity that was not agricultural in nature. However, the trial court observed that

provisions of the restrictive covenant limiting use of the property to residential use

and prohibiting commercial activities -- except for farming and agriculture -- failed

to define “farming” or “agriculture.” It opined that “definitions of these practices

have probably evolved over the history of mankind as we left hunting, fishing and

gathering . . . to today’s international large scale commercial production.”

The trial court appears to have relied on public policy announced in

the provisions of KRS 413.072(3)(b)2.b. and c. These provisions establish that an

agricultural operation may include sustainable agriculture practices defined as

“science-based practices” that demonstratively lead to performance improvements

aimed at meeting present needs and improving:

the ability of future generations to meet their needs while advancing progress toward environmental, social, and economic goals and the well-being of agricultural producers and rural communities.

KRS 413.072(3)(b)2.c.

-11- We are persuaded that the circuit court’s reliance on these provisions is

erroneous -- most decidedly because it circumvents the plain language of the

restrictive covenant. Furthermore, it is both a logical and practical leap to assume

that operating a commercial enterprise focused on large-scale social events on

property restricted in use to residential, farming, and agricultural purposes could be

viewed as a science-based practice tending to advance the well-being of

agricultural producers and rural communities. The covenant prohibiting use of the

Backs’ property for any commercial purpose beyond farming and agriculture

production clearly does not violate public policy seeking to protect farmland,

agriculture, and rural life.

Courts are not at liberty to create ambiguity in an instrument where

none exists. O.P. Link Handle Co. v. Wright, 429 S.W.2d 842, 847 (Ky. 1968).

The terms of the restrictive covenant applicable to the Backs’ property are clear,

direct, and unambiguous. The restrictive covenant was violated when the Backs

began using their property as a commercial social event venue. The circuit court

erred by failing to interpret the restrictive covenant in accordance with its plain

meaning, and its judgment must be reversed.

Perhaps anticipating this conclusion, the Backs argue that the

judgment can be affirmed upon other grounds. They suggest that the right of their

neighbors to enforce the terms of the restrictive covenant contained in their deeds

-12- has been lost through waiver, abandonment, or a change in the character of the

rural area in which they reside. We disagree.

The Backs explain that two years after the restrictive covenants were

created by deed, Two Sisters Pumpkin Patch began an agritourism operation on a

neighboring farm. They indicate that “[o]n the weekends, there is often music, and

the kids and the cattle are frequently loud.” They observe that no one has ever

complained about this use of nearby farmland.

The Backs’ argument is unpersuasive for a variety of reasons. It is

undisputed that the pumpkin farm is not subject to the restrictive covenants

applicable to the Backs’ property. Consequently, the right of the Backs’ neighbors

to enforce their reciprocal rights cannot have been waived or abandoned by their

failure to object to children picking pumpkins on property not subject to the

disputed restriction. Additionally, there is no reason to assume that operation of a

pumpkin patch on a nearby farm has so fundamentally changed the rural character

of the area so that it is no longer possible to accomplish the purpose intended by

the restrictive covenant. See Bagby v. Stewart’s Ex’r, 265 S.W.2d 75, 77 (Ky.

1954) (quoting 14 AM. JUR. Covenants § 302, page 646) (“A change in the

character of the neighborhood which was intended to be created by restrictions has

generally been held to prevent their enforcement in equity, where it is no longer

possible to accomplish the purpose intended by such covenant . . . .”).

-13- It is noteworthy to observe that zoning law (allowing for and sensitive

to the vicissitudes of changing economic patterns and life styles) is not

synonymous with contract law (which generally binds parties to a meeting of

minds regardless of extraneous changes). It appears that these two areas of the law

were erroneously intermingled or conflated in this case.

The judgment of the Montgomery Circuit Court is reversed.

ALL CONCUR.

BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEES:

Rebecca G. McCoy Ira S. Kilburn Mt. Sterling, Kentucky Salt Lick, Kentucky

-14-