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RENDERED: JANUARY 11, 2013; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
BRADLEY WEISS AND CETTY WEISS
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE PAMELA R. GOODWINE, JUDGE
ACTION NO. 09-CI-06294
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BEFORE: CAPERTON, STUMBO AND THOMPSON, JUDGES.
STUMBO, JUDGE: Bradley and Cetty Weiss appeal from a Summary Judgment in
favor of Robert Walker in Walker’s action seeking damages for breach of a real
estate sales contract. The Weisses contend that the entry of Summary Judgment
was improperly rendered because material issues of fact remain for adjudication.
We find no error, and accordingly affirm the Summary Judgment.
Robert Walker owned a parcel of real property situated in Woodford
County, Kentucky. On April 15, 2004, Walker executed a real estate sales contract
in which he agreed to transfer title to the Weisses. An addendum to the contract
provided that Walker would construct a 12 foot gravel access road with ditches and
drainage, as well as connections for city water, electricity and phone services. The
addendum provided that the work would be completed by November 1, 2004, and
required the Weisses to pay a $15,000 “tap-on fee” for the utility installation.
According to allegations in the record, the Weisses relied on Walker’s
promised completion date and began the process of contracting for the construction
of a new home on the parcel. They would later allege that construction of the
home could not commence until the gravel road was completed. They would also
maintain that Walker failed to complete the improvements in a workmanlike
manner and in conformity with local regulations, resulting in the Weisses being
unable to construct the home and being forced to sell the property.
On November 24, 2009, Walker filed the instant action against the Weisses
in Fayette Circuit Court seeking damages for breach of the real estate sales
contract. Walker alleged that he completed the improvements on or before July 27,
2005, and that the Weisses failed to make payment of the $15,000 in accordance
with the contract. In response, Cetty Weiss filed with the Fayette Circuit Court a
pro se document styled “REBUTTAL”, wherein she denied that Walker had
completed the gravel road on time and in a workmanlike manner. She further
alleged that Walker destroyed a portion of a pre-civil war stone wall and removed
50 hardwood trees, that the gravel road was not initially constructed in conformity
with building codes, and that Walker’s failure to complete the terms of the contract
resulted in the Weisses being unable to construct a home.
After discovery was conducted, Walker moved for Summary Judgment
arguing that the Weisses failed to file an Answer in conformity with the Civil
Rules. He also maintained that the Weisses’ first answers to Interrogatories failed
to admit or deny essential elements of Walker’s action, and that the Weisses failed
to respond at all to the second Interrogatories and Requests for Admissions
propounded on April 28, 2010. The Weisses moved for a Default Judgment,
alleging that the Rebuttal constituted a counterclaim upon which they were entitled
to a judgment.
Upon considering the motions, the circuit court rendered two Orders on
March 23, 2011. The first granted Walker’s motion for Summary Judgment, and
ordered an award of $15,000 plus interest in the amount of $7,921.01. The second
Order denied the Weisses’ motion for a Default Judgment. As a basis for the
denial, the court determined that Cetty Weiss’s Rebuttal did not constitute a
Counterclaim. This appeal followed.
The Weisses now argue that the circuit court erred in sustaining Walker’s
motion for Summary Judgment. They contend that genuine issues of material fact
remain for adjudication, including whether Walker completed the gravel roadway
and other improvements in accordance with the sales contract and whether those
improvements were made in conformity with local codes. The Weisses note that
the contract contains language demonstrating that time was of the essence, and that
Walker’s failure to complete the improvements in a timely manner constituted a
breach of the contract. They argue that when the record is viewed in a light most
favorable to them as the non-movants pursuant to Steelvest, Inc. v. Scansteel
Service Center, Inc., 807 S.W.2d 476 (Ky. 1991), Summary Judgment was not
warranted and the circuit court erred in failing to so find.
In sustaining Walker’s motion for Summary Judgment, the circuit court
implicitly found that Cetty Weiss’s Rebuttal, in conjunction with the Weisses’
limited response to the first Interrogatories and failure to respond to the second
Interrogatories and Requests for Admissions, constituted a basis for finding that no
genuine issues of material fact remained for adjudication.1 We find no error in this
While Walker’s motion for Summary Judgment addressed the alleged
insufficiency of Cetty Weiss’s Rebuttal, the corpus of his argument centered on his
claim that the Weisses failed to respond to the second set of discovery (request for
admissions) filed on April 28, 2010, thereby admitting the allegations set out
therein. Request No. 3 sought an admission from the Weisses that the
improvements set out in the contract addendum, including water, underground
utilities and roadway, were completed in their entirety on or about July 27, 2005.
Request No. 4 sought an admission that the value of the admissions exceeded
The Fayette Circuit Court did not expressly set out the basis of it Order of Summary Judgment.
The Order did state, however, that the court reached its conclusion “having considered the
parties’ Memoranda and oral arguments” in which Walker argued that the “Rebuttal” and failure
to adequately respond to discovery justified Summary Judgment.
$15,000. It appears from the record that the Weisses failed to respond to this
CR 36.01(2) provides that “[e]ach matter of which an admission . . . is
admitted unless within 30 days after service of the request . . . the party to whom
the request is directed serves upon the party requesting the admission a written
answer or objection[.]” Thus, by failing to answer the request, the allegations
contained in the second set of Walker’s discovery were admitted by the Weisses by
operation of the civil rules. That is to say, the Weisses’ failure to deny the request
for admissions was itself a tacit admission that the water connection, underground
utilities and roadway were completed on time and were valued at or above the
contract price of $15,000.
This admission goes to the heart of Walker’s cause of action, in which he
alleged that the Weisses breached the addendum by failing to tender $15,000 upon
completion of the improvements. It is noteworthy as well that even after retaining
counsel, the Weisses did not respond to the second set of discovery, nor was
additional time sought under CR 36.01. On appeal, the Weisses contend that
genuine issues of material fact remain for adjudication, and that as such the entry
of Summary Judgment was unwarranted. Based on the totality of the record,
including the operation of CR 36.01, we cannot conclude that genuine issues of
material fact remain for adjudication.
Summary judgment “shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, stipulations, and admissions on file,
together with the affidavits, if any, 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 a 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., 807 S.W.2d 476, 480 (Ky.
1991). Summary judgment should be granted only if it appears impossible that the
nonmoving party will be able to produce evidence at trial warranting a judgment in
his favor. Id. “Even though a trial court may believe the party opposing the
motion may not succeed at trial, it should not render a summary judgment if there
is any issue of material fact.” Id. Finally, “[t]he standard of review on appeal of a
summary judgment is whether the trial court correctly found that there were no
genuine issues as to any material fact and that the moving party was entitled to
judgment as a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App.
When viewing the record in a light most favorable to the Weisses and
resolving all doubts in their favor, we cannot conclude that the trial court erred in
determining that there were no genuine issue as to any material fact and that
Walker was entitled to a judgment as a matter of law.
The Weisses also argue that their Rebuttal constituted a Counterclaim, upon
which they were entitled to a Default Judgment. In rejecting this argument, the
trial court determined that the Rebuttal did not constitute a Counterclaim. We find
no error with this conclusion. The Weisses’ Rebuttal is not a pleading in
conformity with CR 7.01, does not set forth a claim for damages and is not
properly characterized as a Counterclaim. Additionally, the very language of the
Rebuttal demonstrates that it is not a Counterclaim, as the Weisses state therein
that “if Mr. Walker continues to insist on this frivolous suit, we will have to
counter on our behalf for damages to the property and a loss of use of said
property, and the inability of completing the function that the property was
purchased for.” (Emphasis added). In both form and function, the Weisses’
Rebuttal does not assert a claim for damages against Walker and is not properly
characterized as a Counterclaim, and the trial court did not err in so ruling. We
find no error.
For the foregoing reasons, we affirm the Summary Judgment of the Fayette
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE:
Adam C. Riley
Thomas M. Todd