MINIX (MARCUS S.) VS. MINIX (MARY L.)

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RENDERED: NOVEMBER 13, 2009; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2008-CA-002394-MR MARCUS S. MINIX, SR. v. APPELLANT APPEAL FROM JOHNSON CIRCUIT COURT HONORABLE JOHN DAVID PRESTON, JUDGE ACTION NO. 08-CI-00239 MARY L. MINIX APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: KELLER, MOORE, AND TAYLOR, JUDGES. KELLER, JUDGE: Marcus S. Minix, Sr. (Marcus), appeals from the Johnson Circuit Court’s order dismissing his “Verified Petition.” On appeal Marcus argues that the circuit court improperly dismissed his petition because he alleged therein sufficient facts to support his “simple case of fraud.” We disagree and therefore affirm. FACTS It appears from the record that Marcus and Mary Minix (Mary), were married in 1990 and their marriage was dissolved in 2003. However, the family court did not allocate the couple’s property and debt at that time. It is that delayed allocation that, in part, is the genesis of this action. Working within the preceding framework, we note that the following facts are undisputed. In 1991, Twila Minix (Twila), bought real property located at 713 Walnut Avenue, Paintsville, Kentucky, from James and Nicky Pelphrey (the Pelphreys), for $135,000.00. The deed reflecting that purchase was recorded with the county clerk. We note that the deed refers to a mortgage; however, that mortgage is not in the record. In March 1993, Twila and her husband, Michael Minix (Michael), executed a mortgage on the property at 713 Walnut Avenue in favor of the Plephreys in the amount of $123,752.56. That mortgage was recorded on March 6, 1993, and appears to replace the 1991 mortgage. On May 5, 1993, Mary entered into a “Contract for Deed” (the Contract) with Twila and Michael. Pursuant to the Contract, Mary agreed to assume the above-mentioned mortgage and to make payments pursuant to that mortgage. For reasons that are unclear, the Contract was not recorded until November 17, 1997. On June 24, 1998, Nicky Pelphrey and Paul Pelphrey, on behalf of Nicky and as executors of the estate of James Pelphrey, executed an assignment of -2- the 1993 mortgage to Pelphrey Investments. That assignment was recorded on July 6, 1998. On June 14, 2005, Twila and Michael filed a complaint against Mary alleging that Mary had not made payments as required by the Contract. That complaint, which names Marcus as a co-defendant, notes that the Contract was filed November 17, 1997. On August 15, 2005, Mary filed for bankruptcy protection. At that time, the family court had yet to make a determination regarding the allocation of Marcus’s and Mary’s property and debt. Shortly thereafter, the bankruptcy trustee moved the bankruptcy court for permission to auction the real estate and, over Marcus’s objection, that permission was granted. The bankruptcy trustee held the auction on September 29, 2005, and James Lauffer purchased the property. The bankruptcy trustee deeded the property to Lauffer on October 28, 2005, and that deed was duly recorded. Following the auction, Marcus filed several appeals in federal court unsuccessfully seeking to set aside that sale. It appears that the last such appeal was ruled on by the Bankruptcy Appellate Panel of the United States Sixth Circuit Court of Appeals on June 11, 2007. Sometime after the sale of the property, the family court entered an order allocating Marcus’s and Mary’s property and debt. In pertinent part, the family court awarded $7,650.00 to Marcus as his share of the equity in the marital home. The family court then noted that Mary’s debt in the amount of $33,394.45 -3- had been paid from bankruptcy proceeds. However, had that debt not been paid, the family court stated that it would have allocated half to Marcus. On January 3, 2008, Marcus filed a verified petition alleging that Mary took an incomplete copy of the Contract, completed it, and filed it on November 17, 1997. Marcus alleged that the Contract was not recordable because Mary completed it after it was initially signed by the parties; the Pelphreys did not recognize the Contract “as a valid instrument or mortgage” on the property; Twila and Michael did not authorize Mary to record the Contract; Mary did so “for personal gain;” the clerk failed to note the “reassignment” or “release” of the March 1993 mortgage; the Contract did not provide “constructive notice” that Twila had title to the property; and various other technical deficiencies. Based on the preceding alleged deficiencies, Marcus joined the County Clerk and her Deputy, Pelphrey Investment, and Lauffer as defendants. For relief, Marcus asked the court to set aside the Contract and to order the county clerk to remove it from the court’s records. The parties filed responses and/or motions to dismiss, and the court summarily dismissed Marcus’s petition on November 7, 2008. Marcus appeals to this Court only the dismissal of his complaint against Mary. STANDARD OF REVIEW Although it is not clear from the circuit court’s order, it appears that the court dismissed Marcus’s petition based on the pleadings. In such cases, our -4- review is de novo. Security Ins. Co. of Hartford v. Kevin Tucker & Assocs., Inc., 64 F.3d 1001, 1005 (6th Cir. 1995). ANALYSIS Kentucky Rules of Civil Procedure (CR) 9.02 states that “[i]n all averments of fraud . . . the circumstances constituting fraud . . . shall be stated with particularity.” A party claiming fraud must establish six elements by clear and convincing evidence: (1) material representation; (2) which is false; (3) known to be false or made recklessly; (4) made with inducement to be acted upon; (5) acted in reliance thereon and, (6) which causes injury. United Parcel Service Co. v. Rickert, 996 S.W.2d 464, 468 (Ky. 1999), and Wahba v. Don Corlett Motors, Inc., 573 S.W.2d 357, 359 (Ky. App. 1978). It follows that a complaint of fraud must state those elements with particularity. Marcus’s statement to the contrary notwithstanding, he has not alleged three of those elements with any particularity. A review of Marcus’s petition reveals that he alleges that Mary completed information on the Contract without anyone’s knowledge or permission and then filed the Contract. Assuming that to be true, Marcus has not alleged that Mary did so with any intent to induce him to act or refrain from acting; that he in fact acted or refrained from acting based on Mary’s actions; or that he was damaged by any actions he took or refrained from taking based on Mary’s actions. In fact, the relief Marcus seeks, a declaration that the Contract is void, would damage him. Marcus has no independent claim to an interest in the property. His only claim to the property is that it was obtained by Mary during -5- their marriage and therefore was marital property. Thus, if the Contract were void and Mary had no interest, Marcus would have had no interest. Finally, we note Marcus’s argument that he received “no monies what so ever [sic]” from the property. The portion of the family court’s order regarding the allocation of property and debt attached to Mary’s supplement to her motion to dismiss clearly shows that Marcus was awarded $7,650.00 for his equity in the marital home. Furthermore, the family court stated that the $16,697.23 in debt it would have allocated to Marcus was disposed of through Mary’s bankruptcy. Therefore, this argument by Marcus is wholly without merit and borders on being subject to sanctions. CONCLUSION For the foregoing reasons, we affirm the Johnson Circuit Court. ALL CONCUR. BRIEF FOR APPELLANT: BRIEF FOR APPELLEE: Paul D. Deaton Paintsville, Kentucky Mary Lynne (Slone) Minix, pro se Paintsville, Kentucky -6-

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