SINGLE PERSON CORINE BAKER SINGLE PERSON ANY UNKNOWN HEIRS APPELLANTS v. DON HANCOCK AND HIS WIFE PAT HANCOCK APPELLEES (2011)

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Cherry West and Corine Baker, pro se, appeal from a summary judgment of the Caldwell Circuit Court ordering them to convey two parcels of real property pursuant to a real estate contract with Don and Patricia Hancock (“the Hancocks”).   On appeal, West and Baker argue that summary judgment was inappropriate because they did not receive notice of the motion, the court improperly struck allegations in their answer, and because the contract's conditions for conveyance of the property had not been met.   Finding that summary judgment was appropriate under the circumstances and that West and Baker were not unfairly prejudiced by the conduct of the proceedings, we affirm.

On October 9, 2006, the Hancocks entered into a contract with West and Baker to purchase real property located in Caldwell County, Kentucky.   Under the agreement, the Hancocks agreed to pay $1000 per acre for the property.   However, because the exact acreage of the property was unknown, the Hancocks agreed to obtain a survey and a title examination of the property.   The survey showed acreage in two separate tracts totaling 91.83 acres.

Thereafter, on October 21, 2006, the Hancocks tendered a down payment of $2000 and requested that West and Baker complete the purchase agreement for a total sale price of $91,830.00.   West and Baker decline to complete the sale, challenging the sufficiency of the survey.   They also noted that the title examination failed to discover the deed for one of the tracts.   The Hancocks sent a formal written notice on February 23, 2007 demanding closure of the transaction pursuant to the agreement.   After West and Baker again refused to close the transaction, the Hancocks filed a complaint seeking specific performance of the agreement.

West and Baker filed an answer which included a number of irrelevant assertions.   In addition, they asserted that the purchase agreement is unenforceable due to errors in the survey and because they cannot convey title by general warranty deed as provided in the agreement.   The Hancocks filed a motion to strike the irrelevant portions of the answer pursuant to Kentucky Rule of Civil Procedure (“CR”) 12.06, which the trial court granted on November 13, 2007.   The Hancocks also filed a motion for summary judgment, which the trial court granted on November 6, 2007.

Thereafter, West and Baker filed a timely motion to set aside the summary judgment.   They primarily asserted that they had not received notice of the motion.   In addition, they made an oral motion to recuse the trial judge.   With regard to the latter motion, the court found that the allegations were not sufficient to require recusal.   Nevertheless, the court granted to motion to avoid any appearance of impropriety.

A special judge was appointed and the motion to set aside the summary judgment was passed for a hearing on February 1, 2008.   Subsequently, on February 27, 2008, the court denied the motion to set aside the summary judgment.   West and Baker now appeal.

West and Baker are proceeding pro se and their brief is somewhat difficult to follow.   Generally, we hold pro se litigants to a lesser standard than that imposed upon attorneys.  Beecham v. Commonwealth, 657 S.W.2d 234, 236 (Ky.1983).   The appellants' briefs fail to cite to the record or provide a statement regarding proper preservation of alleged error as mandated by CR 76.12.   Nor do they cite a single authority for any argument which would allow us to ignore those claims.  Cherry v. Augustus, 245 S.W.3d 766, 781 (Ky.App.2006).   However, like the trial court below, we will address the issues mentioned in the appellants' briefs in order to avoid any undue delay in resolving the conflict between the parties.

It appears that the issues in this case break down as follows:  (1) the trial court's granting of the motion to strike;  (2) inadequacy of notice of the first summary judgment hearing;  and (3) the Hancock's entitlement to specific performance of the contract.   We will address each issue in turn.

With respect to the first issue, West and Baker raise two matters with regard to the trial court's order striking their allegations.   First, they contend that the order striking the allegations should have been set aside after the first judge recused.   However, they never asked for that order to be set aside, so this issue is not preserved for review.

Furthermore, West and Baker have not shown that Judge Woodall had any actual conflict of interest.   They alleged the Hancocks have done business with Judge Woodall's brother-in-law.   But there was no allegation that Judge Woodall had any financial interest in that business.   They also alleged that Judge Woodall's former law partner and firm performed real estate work for the Hancocks.   Again, there is no allegation that he had been involved in that work or even that the Hancocks were clients at the time Judge Woodall worked at the firm.   While Judge Woodall recused to avoid any appearance of impropriety, we find no reason to question his impartiality with respect to the granting of the motion to strike.

Moreover, we conclude that the trial court properly granted the motion to strike.  CR 12.06 permits a court, upon proper motion, to strike “from any pleading any insufficient defense or any sham, redundant, immaterial, impertinent or scandalous matter”.   A trial court has the authority under this rule to strike insufficient defenses stated in the answer.   See Bennett v. Bennett, 477 S.W.2d 799, 801 (Ky.1972).   West and Baker's answer raised a number of factual assertions which did not constitute legal defenses to the contract.   While we do not doubt the sincerity of their pleadings, most of the allegations in their answer were irrelevant to the matters at issue.   Consequently, we conclude that the trial court properly ordered these portions of the answer stricken.

West and Baker next argue that summary judgment was improper because they did not receive notice of the Hancocks' motion when it was before the court in November 2007.   However, the court accepted West's testimony that they had not received notice of the motion.   The special judge specifically re-considered the merits of the motion for summary judgment.   Under the circumstances, we cannot find that West and Baker were unfairly prejudiced by the lack of notice.

West and Baker primarily argue that the purchase agreement is unenforceable because its conditions have not been met.   In reviewing a motion for summary judgment, a trial court must consider all stipulations and admissions on file.  CR 56.03.   Summary judgment is only proper when a 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), citing Paintsville Hospital Co. v. Rose, 683 S.W.2d 255 (Ky.1985).   The standard of review on appeal of a summary judgment 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.  Scifres v. Kraft, 916 S.W.2d 779 (Ky.App.1996).   There is no requirement that the appellate court defer to the trial court since factual findings are not at issue.  Goldsmith v. Allied Bldg. Components, Inc., 833 S.W.2d 378, 381 (Ky.1992).

West and Baker first contend that the survey is inaccurate because it includes property they do not own.   However, they present no evidence supporting their belief that the survey is inaccurate.   A party opposing a motion for summary judgment cannot rely merely on the unsupported allegations of his pleadings, but is required to present “some affirmative evidence showing that there is a genuine issue of material fact for trial.”  Hallahan v. The Courier-Journal, 138 S.W.3d 699, 705 (Ky.App.2004), quoting Steelvest, 807 S.W.2d at 482.   In the absence of any evidence challenging the accuracy of the survey, West and Baker failed to show any genuine issue of material fact on this matter.

West and Baker also note that the agreement required the Hancocks to obtain a title examination and that they must be able to provide good and marketable title to the property.   The agreement further provides:

In the event that a title examination reveals any defect in Sellers' title, Sellers shall be given a period of thirty (30) days from and after notification of such defect in which to cure same, in which case the closing date shall be extended accordingly.   In the event that Sellers are unable to cure the title defect within said time period, this Agreement shall be considered null and void.

West and Baker state that they are unable to transfer title by general warranty deed because one of the deeds could not be located.   Since this defect cannot be cured, they argue that the purchase agreement became void by its own terms.   We find some merit to this argument.   If West and Baker were required to convey a general warranty deed despite the defects in their title, then the Hancocks could have required them to defend against any adverse claims that may develop.   Under these circumstances, either party would be entitled to seek rescission of the purchase agreement.

But as the trial court noted, the Hancocks have waived the requirement for a general warranty deed and are willing to accept a quit claim deed.   In addition, they filed an action to quiet the title of any other persons having a claim to this property.   Essentially, the Hancocks have taken the sole risk of any future claims arising from the transfer.   This waiver operates to cure any defect in West and Baker's title.   Consequently, the trial court concluded that West and Baker have no grounds to object to the performance of the contract.   Therefore, the Hancocks were entitled to specific performance of the contract.

Accordingly, the summary judgment by the Caldwell Circuit Court is affirmed.

VANMETER, JUDGE, CONCURS.

THOMPSON, JUDGE, CONCURS IN RESULT AND FILES SEPARATE OPINION.

THOMPSON, JUDGE, CONCURRING IN RESULT:  I concur with the majority opinion because I believe the ultimate result after recusal by the trial judge and the second hearing by Judge Foust allowed sufficient due process to the appellants.

However, it is distressing that the appellants' address is 2079 Highway 62 West, Princeton, Kentucky, and, on numerous occasions, including the motion for summary judgment, the appellants were served at the incorrect address of 2709 U.S. Highway 60 West, Princeton, Kentucky, and that mail was returned as undeliverable.   Even after notice that the incorrect address was being utilized by the clerk and by counsel for appellees, the incorrect address continued to be utilized for service upon the appellants.

Because I believe the ultimate ruling which compelled specific performance for the sale of the property is correct and that adequate due process was provided at the second hearing to which the appellants were sufficiently notified, I concur.

WINE, JUDGE: