Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gaddie v. Benaitis

Court of Appeals of Kentucky

April 27, 2018

MARY BLANCHE GADDIE APPELLANT
v.
RAYMOND J. BENAITIS AND VIOLA BENAITIS APPELLEES

          APPEAL FROM TAYLOR CIRCUIT COURT HONORABLE ALLAN RAY BERTRAM, JUDGE ACTION NO. 13-CI-00087

          BRIEF FOR APPELLANT: Bryan E. Bennett Lexington, Kentucky

          BEFORE: ACREE, D. LAMBERT, AND J. LAMBERT, JUDGES.

          OPINION

          LAMBERT, J., JUDGE.

         Mary 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.

         Gaddie's 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 side.

         The 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.

         In 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 lines.

         In 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.

         We 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.

         "The 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).

         Gaddie 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.