SAM LOVELY APPELLANT v. RANDALL BURCHARD APPELLEE

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Court of Appeals of Kentucky.

SAM LOVELY APPELLANT v. RANDALL BURCHARD APPELLEE

NO. 2010–CA–002182–DG

Decided: April 13, 2012

BEFORE:  dixon, keller and vanmeter, JUDGES. BRIEFS FOR APPELLANT:  Rick A. Johnson Paducah, Kentucky BRIEF FOR APPELLEE:  Richard L. Walter Paducah, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Sam Lovely (Lovely) appeals from a McCracken Circuit Court order affirming a McCracken District Court order requiring Lovely to vacate property located in McCracken County.   For the reasons set forth below, we affirm.

FACTS

On July 30, 2010, Randall Burchard (Burchard) brought a forcible detainer action in the McCracken District Court seeking to evict Lovely from two acres of land where Lovely was residing.   The complaint alleged that Burchard was the owner of the property;  that he had given Lovely permission to occupy the property;  that no lease agreement was entered into between the parties;  that he personally gave Lovely a letter on June 29, 2010, advising him that he had thirty days to vacate the property;  and that Lovely failed to do so.

Lovely filed an Answer asserting that he was the owner of the property;  that in exchange for work he performed for Burchard, Burchard promised to give Lovely a deed for the property;  and that Lovely filed an action in the Graves Circuit Court on July 30, 2010, against Burchard seeking an order requiring Burchard to issue Lovely a deed to the property.

On August 9, 2010, the McCracken District Court held a hearing on Burchard's complaint.   The case was called, and neither Lovely nor his attorney were present.   At the hearing, Burchard testified consistent with his complaint that he was the owner of the property;  that Lovely was living on his property;  that he provided Lovely with a thirty-day-notice of eviction;  and that Lovely refused to vacate the property.   After the hearing, the district court ordered Lovely to vacate the premises within eight days.

According to Lovely, after the case was heard and the decision was rendered, he and his counsel appeared in court.   We note that Lovely did not file a motion for rehearing or reconsideration.   Lovely subsequently appealed to the McCracken Circuit Court, and that court heard the arguments of the parties.   In affirming the district court, the circuit court noted that there was no evidence presented by Lovely at the district court hearing, and that the only evidence presented justified eviction.   This Court granted discretionary review.

STANDARD OF REVIEW

On appeal, Lovely argues that the district court did not have subject matter jurisdiction because the action involved a dispute over legal title to real estate.   Whether a court is acting outside its jurisdiction is generally a question of law.  Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 810 (Ky.2004).   Therefore, we will review the issue in this case de novo.   With this standard in mind, we address Lovely's argument.

ANALYSIS

Pursuant to Kentucky Revised Statute (KRS) 383.210, actions for forcible entry and detainers belong in district court.   However, actions involving interest in realty belong in circuit court.  KRS 23A.010;  KRS 24A.120(1).   As set forth in KRS 383.200(3)(a), a forcible detainer is defined as “[t]he refusal of a tenant to give possession to his landlord after the expiration of his term;  or of a tenant at will or by sufferance to give possession to the landlord after the determination of his will.”

Lovely argues that the action in this case was not a forcible detainer action because he and Burchard did not have a landlord and tenant relationship.   In support of his assertion, Lovely points to Coffey v. Kehoe Rock & Stone, LLC, 270 S.W.3d 902, 903 (Ky.App.2008), wherein this Court noted the following:

It is well settled in this Commonwealth that a forcible detainer action is viable only where the relationship of the competing parties is that of landlord and tenant.  “It has been repeatedly decided by this court that to maintain the writ of forcible detainer the relationship of landlord and tenant must exist in some form.”  Cuyler v. Estis 23 K.L.R. 1063, 64 S.W. 673, 674 (1901).   The summary procedure provided for in district court is designed to “restore to a landlord premises unlawfully detained by a mere tenant.”  Hall's Ex'rs v. Robinson, 291 Ky. 631, 165 S.W.2d 163 (1942).

(Quoting Emmons v. Madden, 781 S.W.2d 529, 530 (Ky.App.1989)).

As set forth above, the only evidence presented at the hearing included Burchard's sworn testimony that he was the owner of the property;  that he gave Lovely permission to be on the property;  that he gave Lovely notice advising him that he had thirty days to vacate the property;  and that Lovely failed to do so.   Based on this evidence, it appears that Lovely was a tenant at will and that there was a landlord and tenant relationship.   See Morgan v. Morgan, 309 Ky. 581, 584, 218 S.W.2d 410, 411 (1949) (noting that “[p]ossession of property and occupancy under an agreement for an indefinite term ordinarily creates a tenancy at will”).   Thus, Burchard's forcible detainer action was a viable action.   Accordingly, the district court had subject matter jurisdiction.  Emmons, 781 S.W.2d at 530.

We note that Lovely raises some arguments with respect to the action he filed in the Graves Circuit Court.   In that action, Lovely asserted that he and Burchard entered into a verbal agreement that, in exchange for $10,000 worth of work, Burchard would give Lovely a deed to the property.   Lovely claimed that he had completed the work, and Burchard refused to give him the deed.   Lovely also asserted that Burchard had been unjustly enriched.

On August 16, 2010, the Graves Circuit Court entered an order dismissing Lovely's complaint with prejudice.   In its order, the court determined that Lovely's complaint was void because his alleged oral contract violated the statute of frauds pursuant to KRS 371.010.   Additionally, the court noted that Lovely's claim for unjust enrichment was barred by the applicable statute of limitations as set forth in KRS 413.120.   Lovely did not appeal from this order.

Because Lovely did not appeal from the order of the Graves Circuit Court, any issues he raises regarding that order are not properly before this Court.   Thus, we do not address them.   However, we note that the order of the Graves Circuit Court refutes Lovely's argument that he owned the property.

CONCLUSION

For the foregoing reasons, we affirm the order of the McCracken Circuit Court affirming the McCracken District Court's order.

all concur.

KELLER, JUDGE:

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