DARRELL HARTWICH v. ALICE K. TODD AND RUSS WILKEY, TRUSTEE IN BANKRUPTCY
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RENDERED:
JANUARY 27, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
2004-CA-002371-MR
DARRELL HARTWICH
APPELLANT
APPEAL FROM OHIO CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
ACTION NO.
03-CI-00331
v.
ALICE K. TODD AND
RUSS WILKEY, TRUSTEE
IN BANKRUPTCY
APPELLEES
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
HENRY AND VANMETER, JUDGES; MILLER, SENIOR JUDGE.1
HENRY, JUDGE:
Darrell Hartwich appeals from an order of the
Ohio Circuit Court overruling his motion for summary judgment
requesting reformation of a deed, and instead granting a money
judgment in his favor in the amount of $3,100.00.
1
Because we
Senior Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110.(5)(b) of the Kentucky Constitution and
KRS 21.580.
believe that summary judgment was improperly granted, we vacate
and remand for further proceedings.
Plaintiff Darrell Hartwich and Defendant Alice Todd
met while both were employed as over-the-road truckers, and
became engaged.
In 1999 Darrell received a deed to a house and
lot in Centertown, Kentucky, which stated a consideration of
$18,000.002.
Approximately a year later he conveyed the property
to Alice for $9,000.00.
The consideration statement recited
that the property was conveyed to Alice “for and in
consideration of the forgiveness of the indebtedness owed by the
GRANTOR to the GRANTEE....”
Soon thereafter Darrell filed a
bankruptcy proceeding in the United States Bankruptcy Court for
the Western District of Kentucky.
Two months after the date of
the deed to Alice, the parties executed and recorded a Deed of
Correction stating that they had intended to convey only an
undivided one-half interest in the property to Alice, with
Darrell retaining the other undivided one-half interest3.
Darrell listed his one-half interest in the Centertown property
among his assets on his bankruptcy schedules.
At that point an
2
Both in her Response to Motion for Summary Judgment at the trial court and in
her brief in this Court, Alice contended that she was the sole purchaser of
the subject property on a land contract before she met Darrell. She claims
that she allowed the deed to be made in Darrell’s single name because she
thought they were to be married. The contract is not included in the record.
3
Alice claims that the Deed of Correction was made on the advice of Darrell’s
bankruptcy attorney.
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undivided one-half interest in the Centertown property became
part of the bankruptcy estate.
11 U.S.C.A. §541.
In September, 2000, the Bankruptcy Court approved the
sale of Darrell’s one-half interest in the Centertown property
back to him for the sum of $3,100.00.
However, when Darrell had
not paid the agreed amount a year later, the Trustee, Russ
Wilkey, filed an Adversary Proceeding in the Bankruptcy Court.
The Cause of Action in that proceeding was summarized as a
“Complaint under Sec. 363 Title 11 USC to sell real estate,
including co-owner’s share.”
Both Darrell and Alice were served
by first-class mail on November 2, 2001.
Alice filed an answer
to the Adversary Proceeding, but Darrell did not.
On December 10, 2001, Darrell finally tendered a check
in payment for the property, and received a receipt signed by
the Trustee.
Nine days later, on December 19, 2001, the
Bankruptcy Court entered an order vacating the September 8,
2000, Order of Sale which had permitted Darrell to re-purchase
the property4.
The December 19, 2001 order authorized Alice Todd
to purchase Darrell’s one-half interest in the Centertown
property “free and clear of liens, encumbrances and other
interests including the interest of the co-owner Darrell
Hartwich”, for the sum of $3,100.00.
4
Alice did not tender her
In its Order the Ohio Circuit Court incorrectly stated that Darrell tendered
his check after the Bankruptcy Court had entered the December 19, 2001 order
revoking his permission to purchase the property.
-3-
check to the Trustee for payment for the property until December
2002.
Alice claims that when she finally tendered the check,
she was advised that payment had already been received on her
behalf.
Her check was later voided.
The Trustee executed and
delivered a deed to Alice in May, 2003.
On October 20, 2003, Darrell filed suit in the Ohio
Circuit Court, alleging that the May 16, 2003 deed from the
Trustee to Alice “was made on mutual mistake of fact” and asking
the court to “enter an Order reforming the deed dated May 16,
2003, to reflect the conveyance was made by the Trustee in
bankruptcy to the plaintiff....”
Trustee, were named Defendants.
Alice and Russ Wilkey, the
Wilkey filed an answer on
October 23, 2003, admitting the allegations in the complaint and
asking the Court to grant the relief Darrell requested.
Alice
filed a timely answer in which she affirmatively pleaded that
Darrell defaulted on his obligation to repurchase the subject
property in the bankruptcy proceeding, and that the Bankruptcy
Court subsequently entered an order revoking his permission to
purchase the property.
Her answer controverted some of the
allegations in the complaint, and affirmatively pleaded waiver,
estoppel, laches and fraud.
The next entry in the record is
Darrell’s motion for summary judgment and supporting affidavit,
filed March 31, 2004.
In her response, Alice did not file a
cross-motion for summary judgment, but she stated that she had
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“offered to reimburse the Plaintiff or the Trustee’s office the
sum of $3,100.00 to bring ultimate finality to this matter.”
She went on to state that “[t]he Plaintiff’s Motion for Summary
Judgment should be overruled and an order entered either
awarding the Defendant the property in fee or allowing her to
reimburse the Plaintiff or the Trustee the sum of $3,100.00.”
That is what the court ultimately did, refusing to reform the
deed and entering judgment for Darrell against Alice for
$3,100.00.
On appeal, Darrell argues that he is entitled to
reformation of the deed from the Trustee or that in the
alternative, if Darrell is compensated by a money judgment, the
correct amount needed to make him whole is $9,000.00, not
$3,100.00.
The reasoning supporting this alternative position
is that in his bankruptcy case Darrell took advantage of the
exemptions permitted by KRS5 427.060 and .160, by which he
exempted a total of $5,900.00 of the value attributable to his
share of the property.
Darrell insists that awarding him a
money judgment of $3,100.00 fails to fully compensate him for
the value of the property and results in a windfall of $5,900.00
to Alice.
This case is in an unusual posture on appeal.
The
trial court unequivocally overruled Darrell’s motion for summary
5
Kentucky Revised Statutes.
-5-
judgment.
If the matter had been left there, no appeal would
have been possible, because orders overruling motions for
summary judgment are interlocutory and are not appealable.
v. Harmon, 284 S.W.2d 812, 814 (Ky. 1955).
Bell
The court went on,
however, to grant the Plaintiff something he did not ask for - a
judgment for $3,100.00.
Although technically judgment was
rendered “in favor of” Darrell, and the general rule is that a
party may not appeal from a judgment in his favor6, it has been
held that “parties to litigation who have rights that may have
been erroneously injured or rights which may be enforced by law
in whole or in part by obtaining a reversal of a judgment are
entitled to maintain an appeal.”
Civil Service Commission v.
Tankersley, 330 S.W.2d 392, 393 (Ky. 1959)(citations
omitted)(emphasis added).
Although Darrell obtained relief, it
was very different from the relief he asked for, and he disputes
the correctness of the amount awarded.
Neither appellee
challenged Darrell’s standing to appeal, and we take it as
adequately established.
Although Alice did not file a motion or cross-motion
for summary judgment, she clearly received the relief she
wanted, and no cross-appeal was filed.
While it has been held
that in a proper case a trial judge may consider granting
summary judgment in favor of a party who has not requested it,
6
See Miller v. Miller, 335 S.W.2d 884, 886 (Ky. 1960).
-6-
we are not persuaded that this is such a case.
See Green v.
Bourbon County Joint Planning Commission, 637 S.W.2d 626, 629630 (Ky. 1982).
We will review the case as an appeal from a summary
judgment7.
Thus, our standard of review 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.”
781 (Ky.App. 1996).
Scifres v. Kraft, 916 S.W.2d 779,
Summary judgment “is only proper where the
movant shows that the adverse party could not prevail under any
circumstances.”
Steelvest, Inc. v. Scansteel Service Center,
Inc., 807 S.W.2d 476, 480 (Ky. 1991).
And, “[b]ecause summary
judgments involve no fact finding, this Court reviews them de
novo, in the sense that we owe no deference to the conclusions
of the trial court.”
Blevins v. Moran, 12 S.W.3d 698, 700
(Ky.App. 2000).
Darrell argues that “[t]he fact that the Trial Court
did enter a monetary judgment in favor of the Appellant means
that it must have concluded that there was no dispute of fact
and that the Appellant was entitled to a judgment of some form.”
Appellant’s brief, p. 3.
He then posits that “[t]he question,
then, becomes one of remedies.”
Id.
7
It is an interesting
We mention in passing that the judgment has some of the characteristics of a
judgment pro confesso. The parties did not advance this theory and we did
not consider it.
-7-
argument, but we cannot accept with any confidence the premise
that the judgment in this case means that the trial court
“concluded that there was no dispute of fact and that the
Appellant was entitled to judgment in some form”.
Even if we
accept that the trial court indeed concluded that Darrell was
entitled to an unsolicited money judgment, Darrell himself
raises a factual dispute regarding the proper amount of damages.
Our review leaves us unconvinced either that there are no
questions of material fact8 or that the movant is entitled to
judgment as a matter of law9.
CR10 56.03.
Determinations remain
to be made that must be made in the trial court rather than in
this Court, either through further discovery and motion practice
or at trial.
8
For example, besides the potential issue of damages mentioned above, our
review of the record discloses that Darrell’s affidavit in support of his
Motion for Summary Judgment contains a statement that the deed conveying the
property to Alice was delivered to her “[f]or unknown reasons”, when the
record strongly suggests that the delivery resulted from the Bankruptcy
Court’s order pursuant to the Adversary Proceeding. Darrell makes no mention
of that proceeding or of the Order revoking his permission to purchase the
property in his pleadings. And, while the Trustee admitted the allegations
of Darrell’s complaint, the facts surrounding the Trustee’s acceptance and
negotiation of Darrell’s check, the later refusal of Alice’s check, and the
delivery of the deed to Alice could be material both to the plaintiff’s case
and to the affirmative defenses raised in Alice’s answer.
9
As the trial court noted, there is at least a serious question whether
Darrell may legally purchase the property, in view of the Bankruptcy Court’s
order of December 19, 2001. Although Alice failed to plead it as an
affirmative defense, the issue may have been res judicata.
10
Kentucky Rules of Civil Procedure.
-8-
Accordingly, the order and judgment of the Ohio
Circuit Court is vacated, and the case is remanded for further
proceedings consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Harry L. Mathison
Henderson, Kentucky
Amanda Perkins
Hartford, Kentucky
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