DELMAR PLUMMER; SALLIE PLUMMER; RESERVATION OMEGA, INC. v. ZANE STURGILL; HITOMI STURGILL
Annotate this Case
Download PDF
RENDERED: MAY 11, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001961-MR
DELMAR PLUMMER; SALLIE PLUMMER;
RESERVATION OMEGA, INC.
APPELLANTS
APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE LEWIS NICHOLLS, JUDGE
ACTION NO. 98-CI-00453
v.
ZANE STURGILL;
HITOMI STURGILL
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; DYCHE AND MILLER, JUDGES.
DYCHE, JUDGE.
Delmar Plummer, Sallie Plummer, and Reservation
Omega, Inc., appeal from an order of the Greenup Circuit Court
granting summary judgment to Zane and Hitomi Sturgill in a land
contract dispute.
Because the appellants have failed to present
substantive affirmative evidence that Sallie Plummer lacked the
mental capacity to enter into the land contract or that undue
influence was exerted upon her in the creation of the land
contract, we affirm.
On July 7, 1995, Sallie Plummer entered into a facially
valid land contract with the Sturgills in which Sallie agreed to
convey to the Sturgills a parcel of real property located on
Smith Branch in Greenup County, Kentucky.
The agreed upon
purchase price was $25,000.00 down, followed by monthly
installments of $290.00 at 6 percent interest until the balance
of the principal was paid off.
The Sturgills paid the down
payment and thereafter made all monthly installment payments.
The land contract was duly recorded in the Greenup County Court
Clerk’s records.
On May 19, 1997, Delmar Plummer, the son of Sallie
Plummer, acting as his mother’s attorney-in-fact, conveyed the
Smith Branch property to Reservation Omega, Inc., a corporation
solely owned by Delmar.
That conveyance certified that the fair
market value of the property was $24,000.00.
Delmar contends
that at the time of the transfer he was unaware of the July 1995
land contract.
On September 9, 1998, the Sturgills tendered the sum of
$6,585.73, the total unpaid balance on the property, to Delmar.
Having fulfilled the obligations of the land contract, the
Sturgills thereupon requested that a deed for the Smith Branch
property be executed to them.
Delmar refused to execute a deed.
On September 25, 1998, the Sturgills filed a complaint
in Greenup Circuit Court seeking a judgment requiring the
appellants1 to convey to them a deed to the Smith Branch
property.
On October 15, 1998, the appellants filed their answer
and counterclaim.
The answer and counterclaim denied the
1
Only Sallie Plummer and Reservation Omega were named as
defendants in the initial complaint. The complaint was later
amended, however, to name Delmar as a defendant.
-2-
existence of a valid land contract on the basis that the contract
executed on July 7, 1995, was procured by the Sturgills by
exercising undue influence on Sallie Plummer, and on the basis
that Sallie did not have the mental capacity to enter into a
contract on July 7, 1995.
Accordingly, the counterclaim sought
to have the land contract declared null and void.
On November 6, 1998, the Sturgills moved for summary
judgment.
Following the appellants’ response, on December 16,
1998, the trial court entered an order denying summary judgment
and setting a discovery schedule.
Subsequently, the depositions
of Delmar Plummer, Sallie Plummer, and Zane Sturgill were filed
into the record.
On April 1, 1999, the Sturgills again moved for
summary judgment; the motion was renoticed on August 6, 1999.
On
August 11, 1999, the trial court granted summary judgment in
favor of the Sturgills.
This appeal followed.
The appellants contend that the trial court erred in
determining that there were no genuine issues of material fact
regarding Sallie’s capacity to enter into the land contract and
whether undue influence or duress was exerted upon Sallie to
force her to enter into the land contract.
We disagree.
In order to qualify for summary judgment, the movant
must “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."
CR 56.03.
The record must be viewed in the 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., Ky., 807 S.W.2d 476, 480
-3-
(1991).
Summary judgment should only be granted when, as a
matter of law, it appears that it would be impossible for the
respondent to produce evidence at trial warranting a judgment in
his favor and against the movant.
Id. at 483 (citing Paintsville
Hospital Co. v. Rose, Ky., 683 S.W.2d 255 [1985]).
A party
opposing a properly supported motion for summary judgment cannot
defeat it without presenting at least some affirmative evidence
showing that there is a genuine issue of material fact for trial.
Steelvest, 807 S.W.2d at 482.
First we consider the trial court’s granting of summary judgment
regarding Sallie’s capacity to enter into the July 1995 land
contract.
To create a valid, enforceable contract, there must be
a voluntary, complete assent by the parties having capacity to
contract.
(1930).
Stege v. Stege's Trustee, 237 Ky. 197, 35 S.W.2d 324
The test of legal capacity to contract is the ability to
understand and appreciate the consequences of the particular
transaction.
There must be a meeting of the minds to effect
assent, and there can be no meeting of the minds where either
party to the agreement is mentally incapable of understanding the
consequence of his acts.
Johnson v. Sands, 245 Ky. 529, 53
S.W.2d 929 (1932); Everly's Adm'r v. Everly's Adm'r, 295 Ky. 711,
175 S.W.2d 376 (1943); Conners v. Eble, Ky., 269 S.W.2d 716, 718
(1954).
“[U]nsoundness of mind to avoid a contract must relate
to the immediate time when the contract was made.”
Crouch, Ky., 341 S.W.2d 591, 594 (1960), quoting
Hall v.
Jefferson
Standard Life Insurance Company v. Cheek's Adm'r, 258 Ky. 621, 80
-4-
S.W.2d 518 (1935).
“The courts will look only to the adequacy of
the understanding where the validity of an act is questioned, and
neither age, sickness, extreme distress, [n]or
debility of the
body will affect the capacity to make a contract or conveyance,
if sufficient intelligence remains to understand the
transaction.”
Hall, 341 S.W.2d at 594; Chrisman v. Quick, 174
Ky. 845, 193 S.W. 13 (1917).
“[T]here is always the presumption
of sanity and capacity to contract, rather than the converse.”
Holcomb v. Brashears, Ky., 273 S.W.2d 810, 811 (1954) citing Rose
v. Rose, 298 Ky. 404, 182 S.W.2d 977 (1944).
“[O]ld age does not
constitute in itself incapacity to enter into a valid contract or
execute a deed.”
Rose, 182 S.W. 2d at 978.
Mental weakness alone does not justify the annulment of
a contract or deed if it is not such an infirmity as to destroy
the party's power to act voluntarily and to appraise the
consequences of his act.
The true test is the person's capacity
to understand and assent to the particular transaction in
question.
Collins et al. v. Isaacs, 231 Ky. 377, 21 S.W.2d 484
(1929); Hagemeyer v. First Nat. Bank & Trust Co., 306 Ky. 774,
209 S.W.2d 320, 321 (1948).
[A]lthough the grantor may be physically
unable to look after his property and
although his mind may be enfeebled by age or
disease, yet these conditions are not
sufficient to render his deed voidable, if
such grantor comprehended the meaning, design
and effect of his acts at the time of the
deed's execution.
Newman v. Winter, 303 Ky. 841, 198 S.W.2d 502, 504 198 S.W.2d 504
(1946).
-5-
The affidavits of Sallie and Delmar Plummer executed on
December 3, 1998, and subsequently filed into the record state
that at the time the land contract was executed Sallie was 81
years of age, suffered from diabetes, lupus, and Parkinson’s
disease, and had suffered a stroke just prior to July 7, 1995,
and, as a result, was in a severely weakened mental condition on
July 7, 1995.
These factors alone, however, fall short of the
proof necessary to overturn a contract based upon lack of
capacity.
Delmar’s deposition provides scant, if any, support for
the position that Sallie lacked the legal capacity to enter the
contract.
While Delmar does express an opinion that it was his
understanding from his layman’s review of Sallie’s medical
records, and from various other hearsay sources, that Sallie
lacked the competency to contract, it appears that Delmar lived
in Florida during the relevant time, and consistent with his lack
of personal knowledge of Sallie’s July 1995 mental status, Delmar
testified as follows:
Q. So, is it fair to say that you yourself
did not observe anything from your mother
that would indicate in that time frame that
she was mentally incompetent to execute a
legal document?
A.
That is correct.
Sallie’s deposition likewise fails to present
affirmative evidence that she lacked the mental capacity to enter
into a contract in July 1995.
In her deposition testimony,
Sallie fails to even allege that she was mentally incompetent to
enter into the land contract.
In fact, Sallie’s deposition
-6-
discloses that she had the Smith Branch property up for sale,
that her son Ronnie Plummer contacted Zane Sturgill regarding the
property, that Sallie was willing to sell the property to
Sturgill because he was her nephew, and that her actual reason
for now wanting to rescind the contract is because Sturgill
intends to sell the property to persons outside the family:
Q. And then did you . . . . You say Ronnie,
your son, Ronnie Plummer, contacted Zane
Sturgill and told him that you had that
property for sale and you didn’t tell him not
to do that. Then did you see Zane at some
point in time then?
A. He come up.
Q. Come up to your home?
A. Yeah.
Q. What happened then?
A. We just came to deciding on a deal.
. . . .
Q. You agreed to sell him the land for
twenty-five thousand dollars ($25,000.00)?
A. Yeah.
. . . .
Q. Did you know that [Zane Sturgill] had
tendered to you a check for six thousand
(6,000) and some dollars which was all the
unpaid balance and asked you to sign a deed
for the property over to him pursuant to the
land contract?
A. That’s right but
then he had . . . I
that but apparently
he sold it to these
. . . I wanted it.
I wanted the farm and
thought he had okayed
he didn’t do it because
other people and I didn’t
. . . .
-7-
Q. So the reason you wouldn’t sign a deed was
because you wanted to buy it back?
A. That’s right.
. . . .
Q. Okay.
A. That was why I was selling it was because
I needed the money.
. . . .
Q. Had you told other people, other than your
brother, John, that it was for sale? Well,
of course, you told your son, Ronald, didn’t
you?
A. Well, I don’t know if I told him or not.
He just . . . he knew I was . . . I had it
for sale, I guess.
. . . .
Q. You had told other people it was for sale?
A
No, I don’t think I had.
Q. Don’t you?
A. I just don’t recall ever telling anybody
out of the family it was for sale. In fact,
I . . . Anybody’s ask me about, I’d say I’m
a saving it for one of the family and that’s
how come I let him have it.
Q. Because he was part of the family?
A. Right.
Q. And you agreed to sell it to Zane then
because he was a member of the family?
A. Right.
Q. Okay. For twenty-five thousand dollars
($25,000.00)?
A. We didn’t have no price set on it when he
got there. He came to see me and he told me
what he’d give me for it.
-8-
Q. And that was twenty-five thousand
($25,000)?
A. Yeah.
Q. And you agreed to take it?
A. Yeah.
. . . .
Q. Yeah. If he paid you the balance of what
he owed you on the land contract, would you
be willing to sign the deed?
A. I would have been until it all turned out
the way it did and them people that’s a going
to move up there, I don’t care for them and I
. . . and that’s my father’s farm. We were
all raised up there. We lived a quiet life.
Q. Um huh. Well you knew all of that when
you signed the land contract to sell it
though, didn’t you?
A. Yeah, I knew it.
it.
I shouldn’t have done
Q. You changed you [sic] mind, huh?
A. Yeah, I have. There’s been some drinking
up there as it is, already.
The appellants have failed to produce any competent
medical testimony, or other affirmative evidence, to support
their assertion that Sallie was incompetent to enter into a
contract in July 1995.
The evidence and testimony as developed
through discovery, construed in the light most favorable to the
appellants, fails to establish a genuine issue of material fact
as to whether Sallie lacked the capacity to contract in July
1995, and the trial court did not err when it granted the
appellees summary judgment as to this issue.
The appellants’ assertion that the appellees exerted
undue influence and duress upon Sallie and forced her into
-9-
entering into the land contract is similarly unsupported by
affirmative evidence.
In regard to the undue influence issue,
Delmar testified as follows:
Q. Do you [have] any actual knowledge of any
person who unduly influenced [Sallie] to get
her to execute that land contract?
A. No.
Q. So, you never were present or you never
heard anybody, Zane Sturgill or Hitomi
Sturgill or anybody on their behalf, unduly
or try to unduly influence your mother, Sally
Plummer, to execute that land contract?
A.
No.
As to the undue influence issue, Sallie testified as follows:
Q. Did Zane Sturgill do anything to unduly
influence you to sign that land contract?
A.
I’m trying to think.
. . . .
Q. Did he do anything unfair to you to cause
you to sign that land contract?
A.
Unfair to me?
Q. Yeah. Did he take advantage of you in
anyway to get you to sign that land contact?
A.
No, I don’t think so.
The appellants failed to present any affirmative
evidence that the appellees unduly influenced Sallie into signing
the July 1995 land contract, and the trial court did not err in
granting summary judgment on this issue.
The judgment os the Greenup Circuit Court is affirmed.
ALL CONCUR.
-10-
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES:
Pamela H. Potter
Ashland, Kentucky
Roger R. Cantrell
Greenup, Kentucky
-11-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
