KEITH (LUKE) VS. CARR (JACOB C.)
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RENDERED: FEBRUARY 19, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000601-MR
LUKE KEITH, JR.
v.
APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE RODERICK MESSER, JUDGE
ACTION NO. 07-CI-00255
JACOB C. CARR, JR.
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; DIXON, JUDGE; BUCKINGHAM,1
SENIOR JUDGE.
DIXON, JUDGE: Luke Keith, Jr., pro se, appeals the Laurel Circuit Court’s order
of summary judgment rendered in favor of Jacob C. Carr, Jr. Finding no error, we
affirm.
1
Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute (KRS)
21.580.
In March 2006, Keith, his wife, and their two daughters executed
general warranty deeds conveying three condominium units they owned in the Post
Road Inn Condominium Motel, to MIG Management, LLC, of which Carr is a
member. The deeds reflect that MIG paid $11,000.00 per unit.
In February 2007, Keith filed a complaint against Carr alleging breach
of contract.2 Keith claimed that Carr had agreed to pay the outstanding utility bills
for the three condominium units Keith sold to MIG. As the basis for his claim,
Keith relied on a two-page letter he allegedly faxed to Carr. The letter delineates
numerous items of furniture Keith and his family planned to remove from the
motel. The final paragraph of the letter states,
We can sell for $11,000.00 per room for the three (3)
rooms we can sell. We would NOT be responsible for
the back utilities. I have called, and they are about
$9,000.00.
Carr denied Keith’s claim and responded to Keith’s discovery
requests. Thereafter, Keith moved for partial summary judgment, which the court
denied. In January 2009, Carr moved for summary judgment, over Keith’s
objection. On February 19, 2009, the court granted summary judgment in favor of
Carr. This appeal followed.
On appeal of a summary judgment, we consider whether the trial court
correctly found that “there is no genuine issue as to any material fact and the
moving party is entitled to a judgment as a matter of law.” Steelvest, Inc. v.
Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991) (quoting Kentucky
2
Carr was the only defendant named in Keith’s complaint.
-2-
Rules of Civil Procedure (CR) 56.03). Furthermore, we are mindful that “a party
opposing a properly supported summary judgment motion cannot defeat it without
presenting at least some affirmative evidence showing that there is a genuine issue
of material fact for trial.” Id. at 482.
Keith argues that issues of fact exist relating to Carr’s liability for the
utility bills. We disagree.
To establish a breach of contract claim, Keith was required to show
that a contract existed and that Carr breached a duty imposed upon him by the
contract. Strong v. Louisville & N. R. Co., 240 Ky. 781, 43 S.W.2d 11, 13 (1931).
Keith contends that the attorney who prepared the deeds advised him and his
family that Carr would pay the utilities. In support of this assertion, Keith tendered
the affidavit of his daughter.
We note that, “[t]he party opposing summary judgment cannot rely on
their own claims or arguments without significant evidence in order to prevent a
summary judgment.” Wymer v. JH Properties, Inc., 50 S.W.3d 195, 199 (Ky.
2001). Despite Keith’s arguments, we are not persuaded that Keith set forth
sufficient affirmative evidence to defeat summary judgment. Indeed, in his
appellate brief, Keith characterizes the correspondence as a “counteroffer” and
concedes that Carr did not sign the document. Based on the evidence of record, we
conclude that Keith failed to establish that a contract existed and that Carr refused
to perform a contractually obligated duty. Accordingly, we find no error in the
court’s decision to grant summary judgment in favor of Carr.
-3-
For the reasons stated herein, the judgment of the Laurel Circuit Court
is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Luke Keith, Jr., Pro Se
Hazard, Kentucky
Robert P. Hammons
Corbin, Kentucky
-4-
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