FROM TAYLOR CIRCUIT COURT HONORABLE ALLAN RAY BERTRAM, JUDGE
ACTION NO. 13-CI-00087
FOR APPELLANT: Bryan E. Bennett Lexington, Kentucky
BEFORE: ACREE, D. LAMBERT, AND J. LAMBERT, JUDGES.
LAMBERT, J., JUDGE.
Blanche Gaddie appeals from the Taylor Circuit Court's
order granting summary judgment to Raymond J. and Viola
Benaitis in a boundary line dispute. We affirm.
late husband purchased the property at 321 Moss Road in 1954.
Gaddie was added to the deed after the marriage in 1955.
Gaddie became owner in fee simple when her husband passed
away in 1991. The Benaitises purchased their property at 144
Moss Road in 2004. They had the property surveyed prior to
the closing. The parties share a common boundary line on one
dispute arose in 2012, after the Benaitises cleared a thicket
and made improvements near the shared boundary line. In March
2013, Gaddie filed a complaint to quiet title and for
injunctive relief regarding 0.002 acres of contested
property; her theories of recovery were adverse possession,
trespass, parol boundary line agreement, timber cutting, and
acquiescence. The Benaitises filed a counterclaim early the
following year, and the parties agreed to a temporary
injunction pending the outcome of the litigation.
November 2014, the Benaitises filed a motion to dismiss or
for summary judgment, which was partially granted on the
issue of adverse possession (after Gaddie had admitted in
discovery that she could not support that claim). Gaddie
filed her survey and surveyor's report in July 2015. The
circuit court, in November of that year, took judicial notice
of previous court actions concerning the properties,
including the surveys filed and adopted setting the boundary
January 2016, the Benaitises filed an amended motion to
dismiss or for summary judgment. The record contains no
written response by Gaddie, although she maintained
throughout that her survey created a genuine issue of
material fact. A hearing was held on April 19, 2016. On
October 5, 2016, the Taylor Circuit Court entered its Order
for Summary Judgment granted in favor of the Benaitises.
Gaddie filed her timely notice of appeal.
initially note that the Benaitises have failed to file a
brief before this Court. Kentucky Rule of Civil Procedure
(CR) 76.12(8)(c) states:
If the appellee's brief has not been filed within the
time allowed, the court may: (i) accept the appellant's
statement of the facts and issues as correct; (ii) reverse
the judgment if appellant's brief reasonably appears to
sustain such action; or (iii) regard the appellee's
failure as a confession of error and reverse the judgment
without considering the merits of the case.
decision as to how to proceed in imposing such penalties is a
matter committed to our discretion. Kupper v. Kentucky
Bd. of Pharmacy, 666 S.W.2d 729, 730 (Ky. 1983);
Flag Drilling Co., Inc. v. Erco, Inc., 156 S.W.3d
762, 766 (Ky. App. 2005)." Roberts v. Bucci,
218 S.W.3d 395, 396 (Ky. App. 2007). See also Hallis v.
Hallis, 328 S.W.3d 694 (Ky. App. 2010). We elect to
"accept the appellant's statement of the facts and
issues as correct." CR 76.12(8)(c)(i).
argues before this Court that summary judgment was improper,
that there were material issues of fact regarding "the
true boundary line as shown by [her] surveyor" and
"regarding any parol boundary line agreement." She
also contends that there were issues of fact concerning
equitable estoppel and acquiescence.
The proper standard of review in appeals from summary
judgments has frequently been recited and is concisely set
forth in Lewis v. B & R Corporation, 56 S.W.3d