LEADINGHAM (JAMES), ET AL. VS. MARCUM (JAMES)Annotate this Case
RENDERED: DECEMBER 19, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
DR. JAMES LEADINGHAM
AND LENORA LEADINGHAM
APPEAL FROM LAWRENCE CIRCUIT COURT
HONORABLE JOHN DAVID PRESTON, JUDGE
ACTION NO. 05-CI-00380
VACATING AND REMANDING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; KELLER, JUDGE; HENRY,2 SENIOR
COMBS, CHIEF JUDGE: James Leadingham, and his wife, Lenora, appeal from
a summary judgment granted by the Lawrence Circuit Court to Jimmy Marcum.
After our review, we vacate and remand.
Although the name of the appellee on the Notice of Appeal is James Marcum, we refer to him –
as does his counsel – by the name of Jimmy.
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 KRS 21.580.
The Leadinghams reside at 2135 Highway 1185 in Louisa, Kentucky.
They acquired an easement for access to this property from Carla Marcum Quillen
in August 1997. In September 2001, they purchased from Quillen twenty-nine
acres that adjoined their property. This tract included the access road that the
Leadinghams had used since 1997. According to the Leadinghams, the 2001
purchase agreement between the parties incorporated a road maintenance
agreement. The recorded road maintenance agreement provides that certain
financial responsibilities are to be shared among the adjacent property owners who
utilize the road.
In December 2005, the Leadinghams filed a civil action against
Quillen and Jimmy Marcum. In their unverified complaint, the Leadinghams
alleged that Quillen had sold the remainder of her adjacent property to Jimmy
Marcum. They also alleged that Marcum had been using the road daily for
convenient access to his property, and they complained that he had failed to
contribute to its necessary maintenance. The Leadinghams sought to revoke
Quillen’s and Marcum’s right to any use of the road based upon a breach of the
written agreement; they also asked for damages against them for trespass. Their
complaint included an allegation that Quillen’s and Marcum’s wrongful use of
their road amounted to an intentional infliction of emotional distress. The
Leadinghams sought damages based on the severe emotional distress that they
claim to have suffered since Marcum acquired the adjacent property.
In his answer, Marcum admitted that Quillen had conveyed to him the
remainder of her property. However, he denied that he had wrongfully used the
Leadinghams’ road to access this property by virtue of a failure to contribute to its
maintenance, and he denied that he had breached any contract with the
Leadinghams. Furthermore, he denied that he trespassed upon their property or
that he committed an intentional infliction of emotional distress. Quillen did not
answer the complaint.
By June 2006, Marcum and the Leadinghams exchanged written
discovery; the Leadinghams scheduled Marcum’s deposition for July 10, 2006.
For reasons not appearing in the record, Marcum’s deposition was eventually
rescheduled for September 25, 2006, and then again for December 11, 2006.
Marcum also scheduled the Leadinghams’ depositions for December 11, 2006.
However, on October 25, 2006, Marcum filed a motion with the court to dismiss
the action for failure to meet the amount of the jurisdictional threshold or, in the
alternative, for summary judgment with respect to the issues of intentional
infliction of emotional distress and breach of contract. In their response, the
Leadinghams agreed to stipulate to a dismissal of the claim of intentional infliction
of emotional distress and the claim based upon trespass as long as Marcum agreed
to relinquish any right he had to the use of the road.
On December 21, 2006, the trial court concluded that Marcum was
entitled to judgment as a matter of law and granted his motion for summary
judgment. The finality language included in the court’s judgment was
subsequently withdrawn at the Leadinghams’ request, and the proceedings
On September 20, 2007, the Leadinghams were granted a default
judgment against Quillen in the amount of $24,193.00 based on her breach of
contract, trespass to property, infliction of emotional distress, and damage to
property. They also recovered attorney fees and costs. This appeal followed.
As a preliminary matter, we note that Marcum’s motion to strike the
Leadinghams’ brief or those portions of the brief that were unsupported by the
record was passed to this merits panel of the court. We have reviewed Marcum’s
motion carefully, and we agree that portions of the material contained in the
Leadinghams’ brief were not supported by anything appearing of record.
Consequently, those portions of the brief were duly stricken and were not
considered by the panel in reaching its legal conclusions.
In reviewing a trial court’s grant of summary judgment, our standard
of review on appeal is whether the trial court correctly determined 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. Kentucky Rules of Civil Procedure (CR) 56.03. The
moving party bears the initial burden of showing that no genuine issue of material
fact exists. Then the burden shifts to the party opposing summary judgment to
present some affirmative evidence that a genuine issue of material fact does exist
for trial. Lewis v. B & R Corporation, 56 S.W.3d 432 (Ky.App.2001).
We conclude that summary judgment was prematurely granted in this
case. In their complaint, the Leadinghams alleged that Marcum trespassed daily
upon their road. This allegation was not specifically addressed in Marcum’s
motion for summary judgment. Marcum’s written arguments in support of
summary judgment focused entirely on the intentional infliction of emotional
distress claim and the claim that he had breached a contract with the Leadinghams.
However, the court’s judgment appears to dismiss the trespass claim along with the
In his brief to this court, Marcum argues that the summary judgment
should nonetheless be affirmed since the Leadinghams offered no proof that they
were in actual or constructive possession of the land on which the alleged trespass
occurred. Although this argument was never addressed to the court, the fact of the
Leadinghams’ ownership of the property can be ascertained from a review of the
recorded maintenance agreement. In Roberson v. Lampton, 516 S.W.2d 838 (Ky.
1974), the court cautioned against the use of summary judgment as a means of
luring a party into a “premature showdown.” Citing Conley v. Hall, 395 S.W.2d
575, the court stated as follows:
We think that it should be borne in mind that the motion
for summary judgment is not a trick device for the
premature termination of litigation. Its function is to
secure a final judgment as a matter of law when there is
no genuine issue of a material fact. The burden is on the
movant to establish the nonexistence of a material fact
issue. He either establishes this beyond question or he
does not. If any doubt exists, the motion should be
Id. at 840.
By mere allegation, Marcum has not established the nonexistence of
the Leadinghams’ ownership of the property, a fact or premise necessary to
maintain an action in trespass. Additionally, a review of the deposition schedule
indicates that the parties had not yet completed discovery in this matter. The
Leadinghams anticipated an opportunity to develop the facts more fully, and we
conclude that they were entitled to do so under these circumstances.
Based upon the foregoing, the judgment of the Lawrence Circuit
Court is vacated, and this matter is remanded for additional proceedings.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE:
Michael T. Hogan