DAVID LARKINS AND REBECCA LARKINS v. J.J. MILLER; JOHN AKIN; AND AKIN & MILLER LAND DEVELOPERS
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RENDERED: OCTOBER 26, 2007; 2:00 P.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-002043-MR
DAVID LARKINS AND
REBECCA LARKINS
v.
APPELLANTS
APPEAL FROM BOONE CIRCUIT COURT
HONORABLE PAUL W. ROSENBLUM, SPECIAL JUDGE
ACTION NO. 05-CI-01679
J.J. MILLER; JOHN AKIN; AND AKIN &
MILLER LAND DEVELOPERS
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: THOMPSON AND WINE, JUDGES; HENRY,1 SENIOR JUDGE.
THOMPSON, JUDGE: David and Rebecca Larkins (the Larkins), husband and wife,
appeal the Boone Circuit Court's grant of summary judgment in favor of J.J. Miller, John
Akin, and Akin and Miller Land Developers (the “Developers”), against their claims for
breach of contract and fraud. For the reasons set forth below, we affirm.
1
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
21.580.
According to Rebecca's deposition testimony, in March 2000, she contacted
John Akin about the possibility of purchasing a parcel of land in the Parlor Grove
Subdivision located in Hebron, Kentucky. Following this communication, the Larkins
and Akin met at Lot 270, in Parlor Grove, to discuss the possibility of the couple
purchasing the lot.
After this meeting, according to David's deposition testimony, the Larkins
met Akin at the lot again, and Akin made a comment that the slope of the property would
result in additional construction costs. However, Akin said that the additional costs
would not exceed a few thousand dollars. A few days later, the Larkins decided to
purchase the property.
In his deposition, David testified that Akin came over to the Larkins'
residence on May 19, 2000, and the parties completed the entire property transaction.
During the course of the meeting, the Larkins and Akin read and discussed the Thelen
Report. This report contained the written findings from a geotechnical study of the lots
of Parlor Grove and listed construction considerations on a lot-by-lot basis for the
properties of Parlor Grove. According to David, Akin reaffirmed his estimate that the
additional building costs associated with building on the sloped property would only be
a few thousand dollars.
The Larkins testified that after receiving a copy of the portion of the
Thelen Report pertaining to Lot 270, the purchase of the lot was completed by the
signing and exchange of all the necessary documents. Specifically, David testified that a
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check for $160,000, representing the full purchase price of Lot 270, was tendered to
Akin; that they signed the purchase agreement; and that the Larkins signed the
Acknowledge and Release (Release) Agreement.
The Release provided, in pertinent part, the following:
NOW, THEREFORE, the parties hereto agree as follows:
I.
ACKNOWLEDGMENT BY PURCHASERS
The Purchasers acknowledge that, prior to agreeing to
purchase a hilltop residential lot from Akin and Miller Land
Developers, they:
(1) Have had the opportunity to freely and fully inspect the
hilltop residential lot and its surroundings, including
conducting any testing of the lot and its surroundings they
desired;
(2) Received a complete copy of the geotechnical report,
dated January 29, 1999, prepared by G.J. Thelen &
Associates, Inc. (the “Thelen Report”) regarding the hilltop
residential lots for sale by Akin and Miller Land Developers;
(3) Had an opportunity to freely and fully review and
consider the contents of the Thelen Report;
(4) Had an opportunity to freely and fully discuss the
contents of the Thelen Report with Thelen or any other
individual of their choice knowledgeable regarding slope
stability and other related issues;
(5) Were aware that Thelen is a separate and independent
entity from Akin and Miller Land Developers and is not an
employee, agent, or representative of Akin and Miller Land
Developers; and
(6) Have elected to proceed to purchase a hilltop residential
lot from Akin and Miller Land Developers with full
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knowledge of the slope stability and related issues addressed
in the Thelen Report.
II. NO RELIANCE
The Purchasers acknowledge that neither Akin and Miller
Land Developers nor Miller, individually, or Akin,
individually, are experts in slope stability or related issues
and therefore the Purchasers have not acted in reliance on any
representations made regarding slope stability or related
issues by or on behalf of Akin and Miller Land Developers,
Miller, individually, or Akin, individually.
III. RELEASE
In consideration of Akin and Miller Land Developers
agreeing to sell a hilltop residential lot to Purchasers,
Purchasers do hereby for themselves, their heirs, executors,
administrators, successors, and assigns, release and forever
discharge Akin and Miller Land Developers, Miller,
individually, and Akin, individually, their heirs, executors,
administrators, successors, and assigns, from all claims and
demands, actions, or causes of action, which have arisen or
which may arise, related to, either directly or indirectly, slope
stability or any other directly or indirectly related issue.
Following the purchase of the lot, due to their financial circumstances, the
Larkins were unable to begin the construction process on their lot for a period of five
years. When they began the construction process in 2005, the Larkins hired a company
to estimate the cost of construction for building on their lot with an emphasis on the
additional costs associated with the slope of the property. According to the Larkins, this
company estimated that the additional costs associated with building on the sloped
property would be $83,000.
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In response to this estimate, on September 9, 2005, the Larkins filed suit
against the Developers for breach of contract and fraud. The Larkins claimed that the
Developers breached the purchase contract when the Developers failed to deliver Lot 270
to them in a condition fit for the purpose for which they purchased the property. They
claimed that the Developers committed fraud when Akin told them that the additional
costs of construction would only be a few thousand dollars when the costs were $83,000.
Following further proceedings, the Developers filed a motion for summary
judgment. Their primary argument was that the Release, signed by the Larkins, entitled
them to a judgment of dismissal as a matter of law. The Larkins argued that the Release
was an invalid contract because it was not supported by valuable consideration. After
numerous briefs were filed on the issue, the trial court granted the Developers' motion for
summary judgment. This appeal follows.
The Larkins contend that the trial court erred by granting the Developers'
motion for summary judgment. The Larkins argue that the purchase of the property was
completed prior to their signing of the Release on July 14, 2000. Thus, they contend that
the Release is an invalid and unenforceable contract because it was not supported by
valuable consideration as they did not receive any benefit in return for signing the
Release.
As our standard of review, we observe that summary judgment is proper
when, as a matter of law, it appears that it would be impossible for the non-moving party
to produce evidence at trial warranting a judgment in his favor. Steelvest, Inc. v.
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Scansteel Service Center, Inc., 807 S.W.2d 476, 483 (Ky. 1991). The reviewing court
must view the record in a light most favorable to the party opposing the motion for
summary judgment and resolve all doubts in his favor. Id. at 480. Finally, we review de
novo the trial court's judgment and afford its conclusion no deference. Blevins v. Moran,
12 S.W.3d 698, 700 (Ky.App. 2000).
We first note that the Larkins' factual allegations stated in their appellate
brief are at odds with their deposition testimony offered to the trial court. In their
depositions, as set out earlier in this opinion, the Larkins testified that the property
transaction, including the signing of the Release, was completed during a single meeting
in their home in May 2000. Despite this testimony, in their appellate brief, they assert
that they signed the Release on July 14, 2000, after the property transaction had already
been completed.
Although the Larkins have reformulated their factual assertions since
leaving the trial court, such reformulations are proscribed as an impermissible appellate
practice. Smith v. Commonwealth, 41 S.W.3d 458, 461 (Ky.App. 2001). A party's
assertions before the appellate court must be its assertions before the trial court. Kennedy
v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976). However, we need not decide
which set of facts to accept because the Developers are entitled to a judgment as a matter
of law under both.
Accepting the Larkins’ trial facts as true, since the entire transaction was
completed during the May meeting, the Release signed by the Larkins was a valid
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contract as it was supported by valuable consideration as recited in Part III of the Release.
In Frear v. P.T.A. Industries, Inc., 103 S.W.3d 99, 107 (Ky. 2003), the court held that a
release is an agreement between parties where one party surrenders the right to sue the
other party for a claim that might arise.
After determining that a contract is valid, a court should interpret the terms
of the contract according to their plain and ordinary meaning. Nationwide Mutual
Insurance Co. v. Nolan, 10 S.W.3d 129, 131 (Ky. 1999). Applying this rule of law, the
Larkins signed a Release that surrendered any claim or action that they would have had
against the developers due to the issue of the lot's slope stability. Consequently, the
Larkins’ breach of contract and fraud claims are disposed of by the terms of the Release;
thus, the trial court's grant of summary judgment was proper.
Moreover, even if we accept the version of the facts asserted by the Larkins
in their appellate brief, the Developers were still entitled to a judgment as a matter of law.
The Larkins claim that they signed the Release on July 14, 2000, as reflected on the
signature lines of the Release itself, but that the purchase had already been completed
leaving the Release invalid for a lack of consideration.
However, the record reflects that the Larkins tendered a check to the
Developers, dated July 14, 2000, the same date that they signed the Release.2 This check
constitutes valuable consideration and thus establishes the Release as a valid contract.
2
Although several documents indicate that the purchase of the land was not completed during
the May meeting, the Larkins disputed this contention during their depositions.
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And as has been previously set out in this opinion, the Release constitutes a surrender of
the Larkins' right to bring an action related to Lot 270's slope stability.
For the foregoing reasons, the order of the Boone Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Eric C. Deters
Independence, Kentucky
Jason C. Kuhlman
Michael M. Sketch
Covington, Kentucky
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