HENRY SIZEMORE, JR.; COY SIZEMORE; AND RUTH PHILLIPS v. HENRY SIZEMORE, SR.
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RENDERED:
AUGUST 24, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002142-MR
HENRY SIZEMORE, JR.;
COY SIZEMORE; AND
RUTH PHILLIPS
APPELLANTS
APPEAL FROM KNOX CIRCUIT COURT
HONORABLE RODERICK MESSER, JUDGE
ACTION NO. 99-CI-00036
v.
HENRY SIZEMORE, SR.
APPELLEE
OPINION
AFFIRMING IN PART AND
REVERSING AND REMANDING IN PART
** ** ** ** **
BEFORE:
EMBERTON, MILLER, AND SCHRODER, JUDGES.
MILLER, JUDGE:
Henry Sizemore, Jr., Coy Sizemore, and Ruth
Phillips (collectively appellants) bring this appeal from a June
5, 2000, judgment of the Knox Circuit Court.
We affirm in part
and reverse and remand in part.
In January 1999, appellee, Henry Sizemore, Sr. (Henry,
Sr.), brought a quiet title action in the Knox Circuit Court.
He
and his late wife, Sophia, owned real estate as joint tenants
with right of survivorship.
Before her death, and unbeknownst to
Henry Sr. Sophia individually and as power of attorney for Henry,
Sr. conveyed the real estate to Henry, Jr.
In his complaint,
Henry, Sr., alleged that he did not sign the power of attorney to
Sophia, thus, the conveyance was invalid.
His daughter,
appellant, Ruth Phillips (Ruth), sought to intervene in the
action.
She claimed ownership to part of the property by oral
agreement.
On May 16, 2000, the circuit court granted Henry,
Sr.'s motion to dismiss Ruth's intervening complaint.
On May 18,
2000, the circuit court entered partial summary judgment in favor
of Henry, Sr.
The circuit court concluded that appellant, Coy
Sizemore's subsequent attempt to deed to Henry, Jr. the
properties of Henry, Sr. was null and void.
A jury trial ensued
upon the single issue of whether Henry, Sr. had signed the power
of attorney which Sophia cited as her authority to execute the
deeds to Henry, Jr.
Henry, Sr.
The jury returned a verdict in favor of
This appeal follows.
Appellants contend that the jury's verdict is not
supported by the evidence and is contrary to law.
The power of
attorney to Sophia was allegedly signed by Henry, Sr. with his
mark, an “X.”
This “X” was notarized by a notary public who is
the wife of Henry, Jr.
The power of attorney was dated October
31, 1989. On July 22, 1993, Sophia, individually and as power of
attorney for Henry, Sr., executed and delivered to Henry, Jr. two
deeds conveying the properties at issue.
These deeds were not
recorded until January 7, 1999, two days after Sophia's death.
Upon learning of the recordation of the deeds, Henry, Sr.
asserted that he did not sign the power of attorney to Sophia,
maintaining that the “X” was not his mark.
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Appellants argue the circuit court committed error by
allowing the jury to determine whether Henry, Sr. actually signed
his name with the “X” upon the power of attorney to Sophia.
More
specifically appellants allege that the notary's certification on
the document is conclusive of the issue as appellee's complaint
does not allege fraud in obtaining the certificate.
Appellants
believe such omission to be fatal and cite us to Kentucky Revised
Statutes (KRS) 61.060 for the proposition that fraud must be
alleged in order to attack the validity of the power of attorney.
We have reviewed the complaint of Henry, Sr. and think it can be
reasonably construed as alleging fraud in the obtainment of the
power of attorney.
See Universal C.I.T. Credit Corporation v.
Bell High Coal Corporation, Ky., 454 S.W.2d 706 (1970).
In sum,
we are of the opinion that the complaint was sufficient to raise
the allegation of fraud.
Id.
Appellants also allege the circuit court committed
error by entering partial summary judgment.
Specifically,
appellants contend that the circuit court erred as a matter of
law in setting aside the deeds executed by Coy while acting as
power of attorney for Henry, Sr.
It appears that Henry, Sr.
executed a general power of attorney to his son, Coy, on February
4, 1999.
The power of attorney expressly provided that it would
become effective only upon the disability of Henry, Sr.
On April
5, 1999, Henry, Sr. executed another power of attorney to Coy.
On September 3, 1999, Henry, Sr. revoked the April 5, 1999, power
of attorney to Coy and recorded the revocation.
On October 22,
1999, Coy executed a deed attempting to re-convey to Henry, Jr.
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the property previously conveyed by Sophia.
Coy relied upon the
April 5, 1999, power of attorney as his authority to convey the
property on behalf of his father, Henry, Sr.
Upon learning that
the April 5, 1999, power of attorney had been revoked, Coy
executed a deed of correction to Henry, Jr. for the same
property.
In this deed, he cited the February 4, 1999, power of
attorney as his authority to convey the property on behalf of his
father.
On October 27, 1999, Henry, Sr. also revoked the
February 4, 1999, power of attorney.
Upon the above uncontroverted facts, it is clear that
Coy did not possess authority to convey the property in question
to Henry, Sr.
The April 5, 1999, power of attorney was revoked
on September 3, 1999, well before Coy executed the October 1999
deed to Henry, Jr.
Thus it cannot be relied upon to sanction the
conveyance.
Furthermore, the February 4, 1999, power of attorney
specifically provided that it would only become effective upon
the disability of Henry, Sr.
As such, the February 4, 1999,
power of attorney likewise cannot be relied to sanction the
conveyance. Hence, we are of the opinion that summary judgment
was appropriate as a matter of law.
Simply stated, Coy lacked
legal authority to convey his father's real estate to his brother
on October 22, 1999; neither the February 1999 power of attorney
nor the April 1999 power of attorney provided such authority for
the conveyance.
Appellants lastly assert that the circuit court
committed error by dismissing the intervening complaint of Ruth.
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In the order dismissing the complaint, the circuit court went
directly to the merits and specifically concluded that:
Ruth Phillips contends that there was
an oral agreement between her and her
parents, for Ruth Phillips to purchase the
disputed property. Further, Ruth Phillips
states that she has made numerous payments to
Henry Sizemore, Sr. and that she has received
a receipt for payment in full from Henry
Sizemore, Sr.
KRS 371.010 requires contracts for the
sale of real estate must be in writing and
signed by the party to be charged therewith.
No action can be brought to charge any person
upon the contract for the sale of real estate
that is not in writing.
In this case Ruth Phillips has not
produced a written agreement to support the
agreement between Ruth Phillips and Henry
Sizemore, Sr. and Sophia Sizemore for the
sale of real estate. Therefore, the
Petitioner's motion to dismiss the
Intervening Defendant is sustained.
Initially, we are of the opinion that Ruth had a right
to intervene in the action under Ky. R. Civ. P. (CR) 24.01(1),
which states, in relevant part, as follows:
(1) Upon timely application anyone
shall be permitted to intervene in an action
...(b) when the applicant claims an interest
relating to the property . . .which is the
subject of the action and is so situated that
the disposition of the action may as a
practical matter impair or impede the
applicant's ability to protect that interest,
unless that interest is adequately
represented by existing parties.
In the case at hand, Ruth claimed an interest in the property at
issue and no other litigant adequately represented her interest;
thus, CR 24.01 grants Ruth the right to intervene in the action.
We also believe that the circuit court prematurely dismissed
Ruth's complaint upon the merits.
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Generally, an oral contract to convey real estate is
unenforceable under the statute of frauds.
KRS 371.010.
A
recognized exception to this rule is where one of the parties to
the oral agreement has fully performed thereunder.
In such
instance, the oral contract may be enforced or the party may be
entitled to appropriate equitable relief. See Waters v. Cline,
121 Ky. 611, 85 S.W. 209 (1905), Doty's Adm'rs v. Doty's
Guardian, 118 Ky. 204, 80 S.W. 803 (1904), Jones v. Comer, 25 Ky.
Law Rep. 773, 76 S.W. 392 (1903).
In sum, we believe that the circuit court must
determine whether there existed an oral contract for conveyance
of real estate to Ruth, and whether Ruth completely performed
under said contract.
If the circuit court answers both questions
in the affirmative, Ruth would be entitled to specific
performance of the oral contract and conveyance of the disputed
property.
If the circuit court finds that an oral contract
existed, but Ruth did not fully perform thereunder, the circuit
court then may determine Ruth's possible entitlement to equitable
remedies, such as repayment of consideration, if any.
However,
if the circuit court finds that no oral contract existed, Ruth
would be entitled to nothing.
Upon the whole, we hold that the
circuit court prematurely dismissed Ruth's complaint.
For the foregoing reasons, the judgment of the Knox
Circuit Court is affirmed in part and reversed and remanded in
part for proceedings consistent with this opinion.
ALL CONCUR.
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BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE:
V. Katie Gilliam
London, Kentucky
Kenneth M. Boggs
Barbourville, Kentucky
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