NANCYE BLACKBURN; PHILLIP BLACKBURN; GROUSE POINT DEVELOPMENT CORPORATION; and R.H. RATLIFF CEMETERY CORPORATION v. FAMILY BANK, FSB
Annotate this Case
Download PDF
RENDERED:
OCTOBER 6, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2005-CA-001663-MR
NANCYE BLACKBURN; PHILLIP BLACKBURN;
GROUSE POINT DEVELOPMENT CORPORATION; and
R.H. RATLIFF CEMETERY CORPORATION
APPELLANTS
APPEAL FROM PIKE CIRCUIT COURT
HONORABLE EDDY COLEMAN, JUDGE
CIVIL ACTION NO. 04-CI-00088
v.
FAMILY BANK, FSB
APPELLEE
OPINION AND ORDER
(1) AFFIRMING AS TO THE BLACKBURNS
(2) DISMISSING AS TO GROUSE POINT AND RATLIFF
** ** ** ** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; HUDDLESTON AND KNOPF, SENIOR JUDGES.1
HUDDLESTON, SENIOR JUDGE:
Nancye Blackburn, Phillip Blackburn,
Grouse Point Development and R.H. Ratliff Cemetery Corporation
appeal from a summary judgment granted by Pike Circuit Court to
Family Bank, FSB.
For the reasons stated below, we affirm the
judgment against the Blackburns and dismiss the appeal
1
Senior Judges Joseph R. Huddleston and William L. Knopf, sitting as Special
Judges by assignment of the Chief Justice pursuant to Section 110(5)(b) of
the Kentucky Constitution and KRS 21.580.
purportedly filed on behalf of Grouse Point Development
Corporation and R.H. Ratliff Cemetery Corporation.
On October 11, 1996, the Blackburns signed and
delivered to Family Bank a promissory note, with a variable
interest rate, in the principal sum of $335,783.98.
To secure
the note, the Blackburns executed and delivered to Family Bank a
mortgage on a tract of land in Pike County, Kentucky.
On
October 21, 1999, the promissory note was modified by written
agreement between Family Bank and the Blackburns to change the
variable interest rate to a fixed rate.
On October 30, 1998, the Blackburns signed and
delivered to Family Bank a second promissory note in the
principal sum of $43,778.21.
To secure that note, the
Blackburns executed and delivered to Family Bank a mortgage on
the same property covered by the October 11, 1996, mortgage and
a mortgage covering additional properties which are not the
subject of this appeal.
In 2003, the Blackburns failed to make several
payments on the October 11, 1996, promissory note.
Family Bank
sent a letter to the Blackburns on November 6, 2003, demanding
that they bring the payments current or face a foreclosure
action.
When the payments were not made, Family Bank initiated,
on January 20, 2004, a foreclosure action by filing a complaint
against the Blackburns as well as other possible lien holders,
- 2 -
including Grouse Point Development and R.H. Ratliff Cemetery
Corporation, seeking judgment for the principal indebtedness,
together with interest, late charges and attorney’s fees.
On
April 20, 2004, the Blackburns filed an answer alleging that
their loan payments were not made because Family Bank officials
had orally promised to purchase the property subject to the
mortgage.
Family Bank moved for summary judgment supported by
the affidavit of its president and chief executive officer, John
Blackburn.
affidavits.
The Blackburns responded by submitting two
Nancye Blackburn averred that on some unspecified
date in 1996, Family Bank orally agreed to purchase the
Blackburns’ property and at the same time agreed that the
Blackburns could refrain from making payments on the October 11,
1996, promissory note pending the drafting of a land sale
contract, with any past-due payments to be deducted from the
purchase price.
These alleged promises were not reduced to
writing nor were the promissory note or the mortgage securing
the note modified in writing.
John O. Burchett, a former Family
Bank branch manager, did not claim any personal knowledge of the
discussions between the Blackburns and Family Bank, but he did
aver that it was his “impression the intention [of Family Bank
to purchase the Blackburns’ property] had been manifested
strongly enough that definite plans had been made.”
- 3 -
On July 15, 2005, the circuit court granted Family
Bank’s motion for summary judgment and ordered the property
subject to the October 11, 1996, mortgage sold.2
This appeal
followed.
We are mindful of the rule that 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.”3
In
deciding whether to grant summary judgment, the circuit court
was obliged to view the record in a light most favorable to the
parties opposing the motion for summary judgment, the
Blackburns, and resolve all doubts in their favor.4
On appeal,
we must determine whether the circuit court correctly found that
there were no genuine issues as to any material fact and that
2
The circuit court determined that Inez Deposit bank held a first mortgage
lien in the principal sum of $2,437.96 and interest; that Family Bank held a
second mortgage lien in the principal sum of $313,314.25, together with late
charges, interest and attorney’s fees; that Family Bank held a third mortgage
lien that was not in default; that Capital Crossing Bank held fourth, fifth,
sixth and seventh mortgage liens in varying amounts; that Grouse Point
Development Corporation’s mechanic liens were invalid because an action to
enforce them had not been filed within one year of their filing; and that an
option granted to R.H. Ratliff Cemetery Corporation had expired. Various tax
liens were also adjudged.
3
Ky. R. Civ. Proc. (CR) 56.03.
4
Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky.
1991).
- 4 -
the moving party, Family Bank, was entitled to judgment as a
matter of law.5
The Blackburns’ only argument on appeal, which is just
over a half page in length and which cites three irrelevant
cases, is that summary judgment was not proper because their
answer and the two affidavits that they filed in response to
Family Bank’s motion for summary judgment raised a material
issue of fact as to whether Family Bank agreed to purchase their
property sometime in 1996 and to allow them to defer payments on
the October 11, 1996, promissory note pending the closing of the
transaction.
The short answer is that a contract for the sale of
realty, if in fact one existed,6 is unenforceable under the
Statute of Frauds7 unless it is in writing, signed by the parties
to be charged [the Blackburns as vendors] and delivered to and
accepted by the vendee [Family Bank].
Furthermore, where a
contract, such as a mortgage or a promissory note due in over
5
Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996).
6
The Blackburns claim that they entered into an oral agreement with Family
Bank in 1996 that provided for the purchase by the bank of their property and
the deferral of payments on their promissory note. The default in payment on
the note which led to this foreclosure action occurred some seven years
later, in 2003.
7
Insofar as it is pertinent to this case, the Statute of Frauds, Ky. Rev.
Stat. (KRS) 371.010, provides that “No action shall be brought to charge any
person: * * * (6) Upon any contract for the sale of real estate . . . ; (7)
Upon any agreement that is not to be performed within one year from the
making thereof; * * * unless the promise, contract, agreement . . . , or some
memorandum or note thereof, be in writing and signed by the party to be
charged therewith, or by his authorized agent. * * * ”
- 5 -
one year, is required by the Statute of Frauds to be in writing
to be enforceable, any modification of that contract must
likewise be in writing to be enforceable.8
Finally, the mortgage
signed by the Blackburns, and the promissory note by
incorporation, require that “no alteration or amendment to this
Mortgage shall be effective unless given in writing and signed
by the party or parties sought to be charged or bound by the
alteration or amendment.”
The Blackburns do not claim that they entered into a
written agreement with Family Bank providing for the sale of
their property or the modification of the mortgage and
promissory note they executed on October 11, 1996.
Therefore,
there were no material facts at issue and Family Bank was
entitled to judgment in its favor as a matter of law.
The notice of appeal filed by the Blackburns’ attorney
also names Grouse Point Development Corporation and R.H. Ratliff
Cemetery Corporation as appellants.
We find nothing in the
record to indicate that that the Blackburns’ attorney has
entered his appearance as counsel of record for these two
corporations which appear to have interests adverse to the
Blackburns.
In any event, neither corporation has filed a brief
on appeal, so it is appropriate, pursuant to Kentucky Rules of
Civil Procedure (CR) 76.12(8)(b), to dismiss their appeals.
8
Cox v. Venters, 887 S.W.2d 563, 566 (Ky. App. 1994).
- 6 -
Thus, the appeals filed on behalf of Grouse Point
Development Corporation and R.H. Ratliff Cemetery Corporation
are dismissed and the judgment is affirmed.
ALL CONCUR.
ENTERED:
October 6, 2006
/s/ Joseph R. Huddleston
SENIOR JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Lawrence R. Webster
Pikeville, Kentucky
Martin L. Osborne
FITZPATRICK, OSBORNE,
HEABERLIN & STURGILL, P.S.C.
Prestonsburg, 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.
