JOYCE BROWN v. WISEMAN AND ANDERSON DEVELOPERS, LLC
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RENDERED:
November 16, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002487-MR
JOYCE BROWN
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE SHEILA R. ISAAC, JUDGE
ACTION NO. 99-CI-03574
v.
WISEMAN AND ANDERSON
DEVELOPERS, LLC
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, McANULTY, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
Joyce Brown (Brown), pro se, appeals from an
October 4, 2000 summary judgment of the Fayette Circuit Court
granted in favor of Wiseman and Anderson Developers, LLC
(Developers).
The Fayette Circuit Court granted summary judgment
in Developers’s favor, established the boundary of a 150-squarefoot-gravesite easement on Developers’s property, and gave
Developers permission to remove and relocate graves that were on
its property but outside of the 150-square-foot gravesite.
affirm.
We
The property, known as 3059 Todds Road, Lexington,
Kentucky, that is the subject of this appeal was originally part
of the estate of James Harris.
On January 28, 1993, the
administrator of Harris’s estate filed suit, styled Case No. 93CI-0353, in the Fayette Circuit Court to settle Harris’s estate.
The circuit court appointed a master commissioner to handle the
estate.
The master commissioner determined that it was necessary
to sell the property at auction.
Prior to the auction, the
master commissioner determined that a gravesite was on the
property.
He set aside approximately 150 square feet for the
gravesite, determined its boundary and, to preserve it, placed an
easement upon the property in favor of Harris’s relatives.
In October 1995, the master commissioner auctioned off
the property.
Joyce Brown, Della Brown, and Jewell D. Mitchell,
officers of the Shield of Faith Ministries, Inc. (Shield of
Faith) and relatives of the deceased, successfully bid $80,100.00
for the property.
However, they failed to file a required surety
bond with the master commissioner, and the master commissioner
rescinded the sale.
On January 8, 1996, the master commissioner
auctioned off the property again.
Again, Joyce Brown, Della
Brown, and Jewell D. Mitchell attended the auction.
Dennis R.
Anderson (Anderson), a real estate developer, also attended the
auction.
Once again, Brown, on behalf of Shield of Faith,
successfully bid $54,500.00 for the property.
On that same day,
Joyce Brown paid the master commissioner ten percent of the
purchase price with a check drawn upon Shield of Faith’s account
but signed by her.
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On January 9, 1996, the master commissioner filed a
report of sale with the circuit court and in his report, the
master commissioner listed Brown as both the highest bidder and
the purchaser of the property.
Brown paid the balance of the
purchase price by check drawn upon Shield of Faith’s account and,
once more, signed by her.
On March 13, 1996, the Fayette Circuit
Court entered an order that confirmed Brown as the buyer of the
property and referred to her, not Shield of Faith, as the
purchaser of the property.
On March 14, 1996, Brown, through
counsel, filed a motion for issuance of deed upon full payment of
purchase price and requested the circuit court order the master
commissioner to prepare and deliver a deed for the property to
Brown, personally, not Shield of Faith.
On April 8, 1996, Brown
recorded a deed from the circuit court that conveyed the property
to her, which failed to mention Shield of Faith.
On June 18, 1996 in Fayette County, the Internal
Revenue Service (IRS) recorded a federal tax lien against Brown
for a tax deficiency.
Brown deeded, by quitclaim, all her
property rights in said property to Shield of Faith and Della
Brown and recorded the deed in Fayette County on July 8, 1996.
Due to the prior recorded federal tax lien, Shield of Faith and
Della Brown took the property subject to the IRS’s tax lien.
The
IRS seized the property and sold it at public auction to Anderson
for $80,000.00.
On March 3, 1997, the IRS deeded, by quitclaim,
the property to Anderson after Brown failed to redeem the
property within 180 days of the sale.
On February 19, 1997, Brown and Shield of Faith filed
suit in United States District Court for the Eastern District of
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Kentucky, against Anderson, the IRS and IRS agent Lynn Tucker.
Brown contested the IRS’ seizure and sale of the property and
requested a temporary injunction to prevent Anderson from
conveying the property, building on it or disturbing any graves
on it.
On November 6, 1997, the United States District Court
dismissed Anderson from Brown’s action.
Brown appealed
Anderson’s dismissal to the United States Court of Appeals which
affirmed the trial court.
On January 3, 2000, the United States
District Court dismissed IRS agent Tucker from Brown’s action
and, on January 12, 2000, dismissed the IRS as well.
a motion to reconsider which was denied.
Brown filed
On March 11, 1998,
Anderson deeded the property to Developers.
Developers filed suit in the Fayette Circuit Court and
requested the circuit court to quiet title in its favor, set the
boundary of the gravesite and authorize Developers to move any
graves outside of the gravesite’s boundary.
On April 24, 2000,
Developers filed a motion for summary judgment and, on June 12,
2000, the Fayette Circuit Court entered a partial summary
judgment that quieted the title of the property in Developers’s
favor, subject only to an unrelated prior judgment lien.
Later
on October 4, 2000, the circuit court entered another summary
judgment in Developers’s favor, set the boundary of the 150square-foot gravesite in accordance with the master
commissioner’s original determination and authorized Developers
to move any graves that were outside of the gravesite’s boundary.
Brown’s appeal followed.
When considering a motion for summary judgment on
appeal, we must review the record in a light most favorable to
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the party that opposes the motion and resolve all doubts in his
favor, and the movant must have shown that the party opposing the
motion could not have prevailed under any circumstances.1
It appears to this Court that Brown presents one
assignment of error -- that the Fayette Circuit Court erred by
failing to preserve the property at 3059 Todds Road as a
gravesite.
Brown contends that the circuit court failed to
comply with the Fourteenth Amendment to the United States
Constitution and the following Kentucky statutes:
KRS2 164.705,
KRS 171.313, KRS 381.710, KRS 381.715, and KRS 381.720.
We will
address each in turn.
First, Brown contends that her rights to due process
and equal protection were violated by the Fayette Circuit Court.
However in her brief, Brown fails to state how the circuit court
violated her constitutional rights; she merely states a
conclusion that her rights were violated.
We have reviewed the
record in its entirety, and it contains no evidence that supports
Brown’s allegation that her Fourteenth Amendment rights were
violated.
Therefore, we adjudge that Brown’s constitutional
rights were not violated by the Fayette Circuit Court.
Second, Brown cites KRS 164.705 and implies that the
circuit court failed to comply with it.
In KRS 164.705, the
General Assembly promulgated a public policy, “to preserve
archaeological sites and objects of antiquity for the public
benefit. . . .”
Brown did not preserve this issue for appeal and
1
Scifres v. Kraft, Ky. App. 916 S.W.2d 779, 781 (1996).
2
Kentucky Revised Statutes.
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even if it were preserved, KRS 164.705 is inapplicable to the
case sub judice.
The record fails to support the contention that
the gravesite in question is an archaeological site nor does
Brown argue that it is.
Therefore, the circuit court did not
violate KRS 164.705.
Third, Brown cites KRS 171.313 and implies the circuit
court violated it.
KRS 171.313 places upon the Kentucky
Historical Society the following responsibilities:
(1) Collect, maintain, preserve, categorize,
and cause to be published necessary
information concerning Kentucky family
cemeteries; (2) undertake a systematic
program which will restore and maintain the
gravesites of any of the following
historically significant people who are
buried within this Commonwealth: (a) Past
Governors of the Commonwealth and their
spouses; (b) The three (3) former Vice
Presidents of the United States from the
Commonwealth: Richard M. Johnson; John C.
Breckinridge; and Alben W. Barkley; and (c)
The “First Pioneers,” who were the original
members at either Boonesboro, Harrodsburg, or
Stanford in 1774-1775 . . .
KRS 171.313 places affirmative duties upon the Kentucky
Historical Society not the Fayette Circuit Court.
The Kentucky
Historical Society is not a party to this appeal nor was it a
party to the underlying action.
Brown does not argue that the
Kentucky Historical Society has failed to comply with subsection
(1) of this statute nor does Brown argue that any of the graves
belong to historically significant people as defined by
subsection (2).
Since KRS 171.313 does not apply, the circuit
court could not have violated it.
Fourth, Brown cites KRS 381.710 which states in its
entirety:
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The fact that any tract of land has been set
apart for burial purposes and that a part or
all of the grounds has been used for burial
purposes shall be evidence that such grounds
were set aside and used for burial purposes.
The fact that graves are not visible on any
part of the grounds shall not be construed as
evidence that such grounds were not set aside
and used for burial purposes.
In Case No. 93-CI-0353, the master commissioner found that a
certain portion of the property at 3059 Todds Road was used for
burial purposes.
The master commissioner expressly set aside
150-square feet as a gravesite and created an easement for the
benefit of James Harris’s family.
The circuit court reaffirmed
the master commissioner’s actions and reaffirmed the boundary set
forth by him.
easement.
Developers took the property subject to said
Brown impliedly argues on appeal that the entire
property should have been preserved as a cemetery; however, such
an issue was not preserved for appeal nor is it factually
substantiated by the record.
In fact, in 1993, Brown’s mother,
Della Brown, approached the Lexington-Fayette Urban County
Planning Commission (Commission) and petitioned the Commission to
change 3059 Todds Road from single family residential zone to a
townhouse zone.3
Della Brown failed to mention in her petition
to the Commission that a gravesite was located upon the property.
Della Brown’s actions in front of the Commission are inconsistent
with Brown’s implied claim that the entire property should have
been preserved as a gravesite.
Lastly, Brown cites KRS 381.715 and KRS 381.720.
KRS
381.715 addresses the abandonment of burial rights and the resale
3
T.R. 189.
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of cemeteries after abandonment.
This statute is inapplicable.
Developers have not argued that Brown or any other member of the
Harris family have abandoned their rights to use the gravesite.
In fact, the circuit court expressly reaffirmed the Harris
family’s right to access and to use the 150 square foot gravesite
located on the property.
KRS 381.720 addresses the vesting of
titles of certain abandoned cemeteries in cities of the first,
second, third, fourth or fifth class.
As above, this statute is
inapplicable since the gravesite has not been abandoned.
Therefore, the circuit court could not have possibly violated
either KRS 381.715 or KRS 381.720.
Brown presented no facts, circumstances or arguments
that would justify reversal of the circuit court, and after
reviewing the record in a light most favorable to the her and
resolving all doubts in her favor, we could see no circumstances
where she could have prevailed at trial.
Therefore, the judgment
of the Fayette Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Joyce Brown, pro se
Lexington, Kentucky
Richard V. Murphy
Cheryl H. Anderson
Lexington, Kentucky
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