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RENDERED: MARCH 27, 2009; 2:00 P.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals
NO. 2007-CA-000888-MR ESTATE OF RALPH G. REYNOLDS, BILLY REYNOLDS AND UNKNOWN SPOUSE, CAROL DINGUS AND UNKNOWN SPOUSE, NANCY MAYO AND UNKNOWN SPOUSE, JIM REYNOLDS AND UNKNOWN SPOUSE, BECKY GREEN AND UNKNOWN SPOUSE, PEGGY THOMPSON AND UNKNOWN SPOUSE, AND ALICE CLARK AND UNKNOWN SPOUSE

APPELLANTS

v.

APPEAL FROM FLOYD CIRCUIT COURT HONORABLE DANNY P. CAUDILL, JUDGE ACTION NO. 00-CI-01097

KELLY G. ALLEN OPINION AFFIRMING ** ** ** ** ** BEFORE: CAPERTON, TAYLOR AND WINE, JUDGES.

APPELLEE

CAPERTON, JUDGE: The Estate of Ralph Reynolds ("Estate"), appeals the Floyd Circuit Court's grant of summary judgment in favor of Kelly G. Allen. The trial court determined that Ralph Reynolds, now deceased and Allen had a binding

contract and not an option for the sale of real property owned by Reynolds, and thus, Allen was entitled to specific performance of the contract. The Estate disagrees and asserts first that the document signed by Reynolds was an option, and secondly that the Estate is not properly before the court because Allen did not properly revive the action pursuant to Kentucky Revised Statutes (KRS) 395.278. We disagree and affirm the judgment of the Floyd Circuit Court. Reynolds owned a house and lot in Floyd County, Kentucky. Allen met with Reynolds on multiple occasions to discuss the sale of the property. On September 5, 2000, Reynolds signed a document whereby he agreed to sell the house and real property to Allen for $50,000 plus a mobile home, which Allen was to provide. Reynolds son, Billy, witnessed the signature of his father and likewise signed the document as a witness. Allen was to have 30 days to obtain an appraisal and a title search.1 Prior to the expiration of the 30 days, Allen obtained the financing and notified Reynolds of his desire to purchase the property pursuant to the signed document. During this time, Reynolds allegedly changed his mind about the sale.2
1

Allen asserts this was necessary to obtain financing.

2

Appellant asserts that this agreement be characterized as an option which terminated upon Reynolds' death. We note that the parties presented no argument that acceptance of an option to sell before revocation of the offer is communicated forms a binding contract. Combs v. Turner, 200 S.W.2d 288, 289 (Ky. 1947) ("It is well settled that an option is not binding as a contract where there is no consideration, unless it is accepted within the time limit and before the offer is withdrawn.") Moreover, the parties have not cited to the record as to whether Allen accepted prior to Reynolds' alleged rescission of his offer. The only provided citation to the record concerning this matter is that Allen accepted in writing prior to Reynolds' death. Thus, if the option was accepted prior to Reynolds' death, then the death of Reynolds did not terminate the option as argued by the Appellant.

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Shortly thereafter, Reynolds passed away. Allen brought suit against the Estate when the heirs refused to perform pursuant to the signed document. Allen moved for summary judgment on September 1, 2004. The trial court entered summary judgment in favor of Allen on August 10, 2006. The record contains no written response by the Estate,3 although the Estate's previous motions for dismissal are contained in the record. In granting Allen's motion for summary judgment, the trial court ruled that the signed document was a binding contract, based on adequate consideration of mutual promises, and not an option. Accordingly, the court found that Allen was entitled to specific performance from the heirs of Reynolds, who were before the trial court through personal service or warning order. The Estate filed a motion to alter, amend, or vacate, wherein it alleged that the trial court had misconstrued the signed document and that the Estate was not properly before the court as no motion to revive the action against the decedent's personal representative was filed pursuant to KRS 395.278. The Estate filed a contemporaneous motion to dismiss based on the action being time-barred by KRS 395.278. The trial court overruled the Estate's motion to alter, amend, or vacate. On appeal, the Estate argues the trial court erred in granting summary judgment in favor of Allen, as the signed document is an option and not a binding
3

The trial court's judgment indicates that arguments of counsel had been heard, but we are unsure as to what was argued before the trial court as there is no indication in the brief submitted by the Estate and there is no video record.

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contract, because the agreement was without adequate consideration. The Estate also argues that Allen failed to name the personal representative of the Estate of Ralph Reynolds as a party pursuant to KRS 395.278. Essentially, the Estate asserts that by failing to name the personal representative of the estate, Allen failed to revive the action and that the time limitation in KRS 395.278 now prohibits the action from being revived. The Estate further argues that since no probate has been filed, there remains a problem of identifying the heirs of Reynolds. Therefore, the Estate claims to be entitled to a reversal of the summary judgment. Allen argues that the signed document is a binding contract, as there was an offer, acceptance, and sufficient consideration of mutual promises. Further, Allen argues that whether Reynolds changed his mind about whether to sell or not is irrelevant to the enforcement of the agreement, as there was no mutual consent to rescission. As to the Estate's argument that KRS 395.278 required Allen to revive the action against the personal representative of the estate and now timebars such action, Allen argues that the Estate improperly raised this issue, as it was first raised after the trial court had entered summary judgment. In addition, Allen argues that Kentucky Rules of Civil Procedure (CR) 8.03 requires all affirmative defenses, such as a statute of limitation, to be affirmatively pled. Thus, Allen argues the issue is not properly preserved for our review. Allen next argues that the suit was never commenced against Reynolds but was in actuality commenced against his Estate, as Reynolds -5-

predeceased the filing of the action. Therefore, Allen asserts that revivor was not necessary. Lastly, Allen argues that all heirs were determined at the death of Reynolds and all known heirs are before the court by either personal service or warning order attorney. Further, Allen asserts that, as the real property passed directly to the heirs through intestate succession, the summary judgment should be upheld. In the matter sub judice, the trial court granted summary judgment in favor of Allen, concluding that the signed document was a binding contract. The interpretation of a contract is reviewed de novo by this Court. Cantrell Supply, Inc. v. Liberty Mut. Ins. Co., 94 S.W.3d 381 (Ky. App. 2002). The appropriate standard of review when a trial court grants 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, 781 (Ky. App. 1996). Since summary judgment involves only legal questions and the existence of any disputed material issues of fact, an appellate court need not defer to the trial court's decision and will review the issue de novo. Lewis v. B & R Corporation, 56 S.W.3d 432, 436 (Ky. App. 2001). 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 judgment as a matter of law." CR 56.03. The trial court must view the record "in a light most favorable to the -6-

party opposing the motion for summary judgment and all doubts are to be resolved in his favor." Steelvest at 480. Thus, summary judgment is proper only "where the movant shows that the adverse party could not prevail under any circumstances." Id. However, "a party opposing a properly supported summary judgment motion cannot defeat that motion without presenting at least some affirmative evidence demonstrating that there is a genuine issue of material fact requiring trial." Hubble v. Johnson, 841 S.W.2d 169, 171 (Ky. 1992), citing Steelvest, supra. See also O'Bryan v. Cave, 202 S.W.3d 585, 587 (Ky. 2006); Hallahan v. The Courier Journal, 138 S.W.3d 699, 705 (Ky. App. 2004). We review this matter with these standards in mind. First, our review of the briefs presented by the parties reveals that the arguments presented by the Estate lack proper citation to the record both as to facts and legal decisions of the court as well as to how the alleged error was preserved as mandated by CR 76.12. While we would be justified in not considering the portion of the brief where the requirements of CR 76.12 are deficient, or in striking the briefs, we shall confine ourselves to a review for manifest injustice. See Pierson v. Coffey 706 S.W.2d 409 (Ky. App. 1985); Elwell v. Stone, 799 S.W.2d 46, 47-48 (Ky. App. 1990); and CR 76.12. In the matter sub judice, the record is unclear as to whether the Estate presented any evidence either to put a material fact into issue or to show that Allen

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was not entitled to summary judgment as a matter of law. Thus, we cannot say that manifest injustice has occurred and therefore affirm the judgment of the trial court. Second, even if the requirements of CR 76.12 were met, our affirmation of the trial court's judgment would not change. Before the trial court was a signed document4 for the sale of real property, which contained mutual promises. The trial court concluded that the mutual promises were both detrimental to each party and were in exchange for the beneficial promise of the other party. "The consideration of a contract, though not expressed in the written memorial thereof, may be shown by parol evidence." Stacy v. Feltner, 135 S.W. 276, 277 (Ky. App. 1911). Allen mailed correspondence to Reynolds advising financing had been obtained. Accordingly, the court concluded that there was adequate consideration for the contract. The trial court correctly determined that the fundamental requirements of a contract are that of offer, acceptance, and consideration. Cantrell Supply, Inc. v. Liberty Mutual Insurance Co., 94 S.W.3d 381, 384 (Ky. App. 2002). As stated in Campbell v. Campbell, 377 S.W.2d 93, 95 (Ky. 1964): "Mutual promises form a valuable consideration for an agreement where there is benefit to the promisor or detriment to the promisee." Thus the trial court correctly determined that as a matter of law, the signed document between Allen and Reynolds was a binding contract supported by sufficient consideration. Accordingly, the court held that Allen was then entitled to summary judgment.
4

While not argued to this Court, we note that the seller signed the document, thus comporting with our statute of frauds. Murray v Crawford, 127 SW 494 (Ky. 1910); KRS 371.010.

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Lastly, we address the arguments made by the Estate as to whether revival against the personal representative of the Estate of Ralph Reynolds as a party pursuant to KRS 395.278 was necessary, and the time limitation pertaining thereto. To resolve these issues, we need only address whether the Estate is a real party in interest to this litigation. We find that the Estate was not a real party in interest, and we therefore affirm. Upon the death of an intestate owner of real property, the title to said property passes directly to the heirs at law; it does not pass through an estate. Wood v. Wingfield, 816 S.W.2d 899 (Ky. 1991). As real property passes as a matter of law to the heirs, the heirs and not the administrator are considered the real parties in interest to a proceeding involving the real property. Levin v. Ferrer, 535 S.W.2d 79 (Ky. 1975); Slone v. Casey, 194 S.W.3d 336 (Ky. App. 2006). Therefore, in the matter sub judice, revivor against the administrator of an intestate estate was not necessary and failure to do so was not error. Based on the aforementioned reasons, we affirm the judgment of the Floyd Circuit Court. ALL CONCUR.

BRIEF FOR APPELLANTS: Timothy A. Parker Prestonsburg, Kentucky

BRIEF FOR APPELLEE: B.D. Nunnery Prestonsburg, Kentucky

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