VANHOOSE (CHARLES R.), ET AL. VS. CITY OF PIKEVILLE, KENTUCKY
Annotate this Case
Download PDF
RENDERED: MARCH 25, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000429-MR
CHARLES R. VANHOOSE; ALICE FAY VANHOOSE;
WILLIAM C. VANHOOSE; GINGER VANHOOSE;
SUZIE JANE VANHOOSE DELONG;
GERLAD DELONG; and CHARLES R. VANHOOSE,
WILLIAM C. VANHOOSE, and
SUZIE JANE VANHOOSE DELONG,
d/b/a COAL RUN PROCESSING
v.
APPELLANTS
APPEAL FROM PIKE CIRCUIT COURT
HONORABLE EDDY COLEMAN, JUDGE
ACTION NO. 08-CI-01180
CITY OF PIKEVILLE, KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON AND COMBS, JUDGES; LAMBERT,1 SENIOR JUDGE.
1
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
LAMBERT, SENIOR JUDGE: Appellants appeal from the February 10, 2009,
findings of fact, conclusions of law, and judgment of the Pike Circuit Court which
denied their motion to enforce a purported settlement agreement.
The underlying controversy stems from the Appellee’s attempt to
condemn, and thus acquire, certain real property of the Appellants for a project
which involved widening a road and adding a sidewalk. The project, known as the
Thompson Road project, was funded by the State Transportation Cabinet
(Cabinet), which had set a cap on the amount that could be paid for the purchase of
property acquired for the project. That cap could not be exceeded without
approval from the Transportation Cabinet.
Ross Anderson, an employee of the City of Pikeville’s engineering
firm, Summit Engineering, was authorized to negotiate for the acquisition of
properties, including the property of the Appellants, on behalf of the Appellee.
Two offers were extended to the Appellants for the acquisition of their property,
and the offers were rejected. After several meetings between Mr. Anderson and
the Appellants, an oral agreement seemed to have been reached. As a result of that
agreement, Mr. Anderson drafted a letter addressed to himself, to be signed by
Appellants, with instructions to Mr. Anderson to complete the transaction with the
Transportation Cabinet. In effect, Mr. Anderson structured the letter as an offer
from Appellants to the City of Pikeville with recognition that Transportation
Cabinet approval would be necessary. That letter was dated October 24, 2007.
-2-
On June 19, 2008, the City’s attorney addressed a letter to Appellants
advising that the property had been reappraised and inquiring whether the
Appellants would be interested in settling for the new appraised amount.
Appellants failed to respond to the letter but later testified that they were not
interested in accepting the new offer.
On August 22, 2008, Appellee filed a petition seeking to condemn the
property owned by the Appellants. The trial court appointed three commissioners
to view the property and file a report determining the fair market value of the
property. The Commissioners’ report was filed on September 4, 2008. On
October 3, 2008, Appellants filed a motion to dismiss and objection to the right of
petitioner to condemn property and a motion to enforce settlement. A hearing was
held, and on February 9, 2009, the trial court’s findings of fact, conclusions of law,
and judgment was entered. That judgment denied the Appellants’ motion to
enforce settlement and their motion to dismiss. The judgment also granted the
Appellee’s motion for an interlocutory judgment which was entered in conjunction
with an interlocutory order giving the Appellee the right to condemn the property
of the Appellants. This appeal followed.
Appellants’ first argue that an offer was made by the City of Pikeville
through its authorized agent, Ross Anderson, which the Appellant landowners
accepted by executing the October 24 letter prepared by the city’s agent. That
letter, signed by Appellants, states in relevant part:
-3-
We are agreeable with pursuing closure on the above
right-of-way transactions based on the following
conditions: [conditions regarding entrances, size of rightof-way, and acquisition prices]. The value assigned to
each parcel is as follows: [parcel specifics]. Please
proceed with arranging the necessary documentation to
complete this transaction with the Transportation
Cabinet.
The enforcement of agreements between parties for the sale or lease
of real property is governed by the Statute of Frauds, which is, in pertinent part:
No action shall be brought to charge any person . . .
[u]pon any contract for the sale of real estate, or any
lease thereof for longer than one year . . . unless the
promise, contract, agreement, representation, assurance,
or ratification, or some memorandum or note thereof, be
in writing and signed by the party to be charged
therewith, or by his authorized agent. It shall not be
necessary to express the consideration in the writing, but
it may be proved when necessary or disproved by parol
or other evidence.
KRS 371.010 (emphasis added).
Appellants argue that the written memorandum required by the Statute
of Frauds need not be signed by one other than the vendor and that delivery and
acceptance by the purchaser renders it enforceable. In support of this argument,
Appellants cite to Chaney v. Nolan, 387 S.W.2d 308 (Ky. 1964). The facts of
Chaney are as follows: the Nolands were negotiating to sell a portion of their
property to the Chaneys. An amount was agreed upon and the Chaneys paid the
Nolans $250 towards the $3,000 purchase price. The agreement and down
payment were evidenced by a receipt. Thereafter, the Nolans refused to sell the
property when they discovered that they would not continue to receive their full
-4-
tobacco base for the portion of the property they were retaining. Although a deed
had been prepared by the Chaneys for the Nolans execution, it was never signed by
Mrs. Nolan. The Court concluded that the deed was insufficient to satisfy the
Statute of Frauds because it was not signed by Mrs. Nolan. Chaney, 387 S.W.2d at
310.
The facts of Chaney seem scarcely relevant or on-point. Unlike the
parties in Chaney, the documents reflect that in this case the parties were still in the
process of negotiating a sale price for the property. Whatever Mr. Anderson
represented orally to Appellants, as to an agreement, neither the City of Pikeville
nor the Cabinet signified its written assent to the transaction. The October 24 letter
was merely a partially executed agreement to pursue the transaction and a request
by Appellants to obtain the approval of the transaction through the Transportation
Department. Although the letter outlines values of the property, it fails to indicate
that those are the amounts for which the property is to be purchased. Instead, the
language of the letter indicates that the Appellants are agreeable to pursuing an
agreement with the city and acknowledge that the transaction must be completed
by the Transportation Cabinet. Finally, although the letter was delivered to the
City, the offer it presented, if any, was never accepted. And, no money changed
hands. From the foregoing, we conclude that the October 24 letter from the
Appellants to Appellee failed to meet the requirements of the Statute of Frauds.
Appellants’ second argument is that Appellee negotiated in bad faith
with Appellants when it withdrew its negotiated offer reflected in the October 24
-5-
letter. For the reasons stated above, we do not agree that the October 24 letter was
an offer made by Appellee to Appellants. The letter was executed by the
Appellants, not Appellee. Accordingly, this argument is without merit.
Appellants’ final argument is that they were entitled to a jury trial on
their motion to enforce the purported settlement agreement. However, the only
basis they offer in support of this argument is case law indicating that summary
judgments are not favored. Appellants indicate that the trial court’s refusal to grant
their motion to enforce settlement is, in essence, a summary judgment against
them. As outlined above, Appellants failed to show the possibility that an
enforceable agreement existed between the parties. Accordingly, it appears
impossible for Appellants to have presented any evidence at trial that would have
warranted a judgment in their favor. See Steelvest, Inc. v. Scansteel Service
Center, Inc., 807 S.W.2d 476 (Ky. 1991). As such, there was no error in the trial
court’s denial of the Appellants’ motion to dismiss and its refusal to enforce the
alleged settlement agreement.
For the foregoing reasons, the February 10, 2009, findings of fact,
conclusions of law, and judgment of the Pike Circuit Court are affirmed.
CLAYTON, JUDGE, CONCURS.
COMBS, JUDGE, DISSENTS BY SEPARATE OPINION.
COMBS, JUDGE, DISSENTING: I am compelled to file a dissent in
this case, which I find to be rather disturbing. The Appellants negotiated in good
faith with Ross Anderson, authorized specifically by the City of Pikeville to act as
-6-
its agent in acquiring the properties at issue. In his capacity as authorized agent,
Mr. Anderson drafted the letter and gave instructions that it be addressed to him
and be signed by the Appellants.
The City of Pikeville now seeks to disavow its authorization of Mr.
Anderson as its agent, arguing that the Statute of Frauds has not been fully
satisfied. I disagree. The Appellants duly executed the letter to Anderson, a letter
that he himself drafted. The Statute of Frauds has been fully satisfied.
The issue may be one of offer and acceptance. However, since the
facts establish that Mr. Anderson dictated the terms of the offer, his acceptance of
his own terms should clearly be implied; or at the very least, he/the City should be
estopped from denying them.
I would remand this case with directions that judgment be entered in
favor of the Appellants. At the very least and in the alternative, they are entitled to
proceed to trial. I agree with them that the judgment against them amounted to a
summary judgment prematurely rendered since multiple issues of material fact
appear to abound in this case.
BRIEFS FOR APPELLANTS:
BRIEF FOR APPELLEE:
Donald H. Combs
Pikeville, Kentucky
Russell H. Davis, Jr.
Pikeville, Kentucky
-7-
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.
