RENDERED: JULY 2, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1309-MR
JOHN W. MAHAFFEY
AND KIM MAHAFFEY APPELLANTS
APPEAL FROM CUMBERLAND CIRCUIT COURT
v. HONORABLE DAVID L. WILLIAMS, JUDGE
ACTION NO. 16-CI-00065
NELDA K. WYATT; NANCY W.
WATSON; AND TOM WATSON APPELLEES
AND
NO. 2019-CA-1355-MR
NELDA K. WYATT; NANCY W.
WATSON; AND TOM WATSON CROSS-APPELLANTS
CROSS-APPEAL FROM CUMBERLAND CIRCUIT COURT
v. HONORABLE DAVID L. WILLIAMS, JUDGE
ACTION NO. 16-CI-00065
JOHN W. MAHAFFEY
AND KIM MAHAFFEY CROSS-APPELLEES
OPINION
VACATING AND REMANDING APPEAL NO. 2019-CA-1309-MR
AND AFFIRMING CROSS-APPEAL NO. 2019-CA-1355-MR
** ** ** ** **
BEFORE: COMBS, DIXON, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: John W. Mahaffey and Kim Mahaffey bring Appeal No.
2019-CA-1309-MR and Nelda K. Wyatt, Nancy W. Watson, and Tom Watson
bring Cross-Appeal No. 2019-CA-1355-MR from an August 9, 2019, Order of
Dismissal of the Cumberland Circuit Court of the Mahaffeys’ claims for breaching
covenants in a general warranty deed. We vacate and remand Appeal No. 2019-
CA-1309-MR and affirm Cross-Appeal No. 2019-CA-1355-MR.
By a general warranty deed dated April 13, 2015, Wyatt and the
Watsons conveyed to the Mahaffeys a 2.03-acre tract of undeveloped real property
located in Cumberland County. Before the conveyance, Tom Watson disclosed to
the Mahaffeys that three or four graves were located upon the 2.03-acre tract.
At the time of the conveyance, the property was in a natural state and
was overgrown with trees and brush. The Mahaffeys initially removed many of
the trees and cleared the tract for installation of a septic system, water line, and
electrical line. The Mahaffeys intended to eventually build a residence but were
temporarily staying in a camper located upon the property.
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The Mahaffeys eventually sought approval from the Cumberland
County Health Department for installation of the septic system. Upon inspection,
officials from the health department discovered additional graves upon the 2.03-
acre tract. In particular, the health department identified 10 or more additional
graves that were marked by archaic fieldstones. Because of the location of these
additional graves, the health department required the septic system, including
lateral lines, to be located seventy feet from all graves. The Mahaffeys were
compelled to find a location for the sewer system that complied with the health
department mandate, which they did.1
The Sheriff of Cumberland County also contacted the Mahaffeys
concerning the graves upon the 2.03-acre tract. According to the Mahaffeys, the
sheriff informed them that he had complaints that the Mahaffeys were disturbing
graves located on the property and that people wanted him to “lock them up.” The
Mahaffeys eventually met with three individuals, David Arms, Brookie Stalcup,
and Grady Holman, who informed the Mahaffeys that there were additional graves
of unknown number located on the property.
The Mahaffeys then had a survey conducted to delineate the
boundaries of the burial grounds upon the 2.03-acre tract. The Mahaffeys hired
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While clearing the property, John Mahaffey maintained that he stayed at least seventy feet
away from the three visible graves thereupon.
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Joe Leftwich to perform the survey. In his deposition, Leftwich stated that he
observed numerous fieldstones and sunken ground consistent with old burials upon
the property. Leftwich had received assistance from Arms, who personally showed
Leftwich where graves were believed to be located on the property but were no
longer visible due to the Mahaffeys’ inadvertent excavation. When completed,
Leftwich’s plat of the burial grounds delineated the boundaries thereof and
determined the burial grounds comprised .26 acres of the entire tract.
On August 22, 2016, the Mahaffeys filed a complaint in the
Cumberland Circuit Court against Wyatt and the Watsons. Therein, the Mahaffeys
claimed:
2. There is located on the conveyed real estate
numerous graves over an area consisting of at least 0.26
acres which use constitutes a dedication of the area as a
graveyard or cemetery and constitutes an easement for
burial purposes.
3. Before the [Mahaffeys] were aware of the
extent of the dedication or easement, they commenced to
prepare the site for its intended purpose as a home site,
and as a result, expended substantial sums in preparation,
but then were required to cease preparation and use as a
home site, because of the existence of the cemetery or
graveyard.
4. [Wyatt and the Watsons], by conveying the real
estate encumbered by a graveyard, have breached the
covenants encompassed by the general warranty clause in
the deed delivered to the [Mahaffeys], specifically
breaching the covenants of seizin and title.
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5. Pursuant to KRS [Kentucky Revised Statutes]
381.710, any area used for burial is deemed or dedicated
as a burial ground, and therefore, the area conveyed by
the subject deed is less than ninety percent (90%) of the
area warranted in the deed, breaching the warranty of
acreage.
August 22, 2016, Verified Complaint at 3. Wyatt and the Watsons eventually filed
an answer.
After the parties completed discovery, Wyatt and the Watsons filed a
motion for summary judgment. They argued that no material issue of fact existed
and that they were entitled to judgment as a matter of law. In particular, Wyatt and
the Watsons contended that Mahaffeys “cannot prove with sufficient evidence . . .
the boundaries or the number of graves of the purported burial ground.” Motion
for Summary Judgment at 5. Wyatt and the Watsons further argued that the
Mahaffeys’ land surveyor, Leftwich, rendered an unreliable and unsupported
survey of the burial grounds. And, Wyatt and the Watsons maintained that the
existence of graves upon the 2.03-acre tract did not constitute a breach of the
general warranty deed. The Mahaffeys responded that the survey and plat
completed by Leftwich clearly demonstrated the boundary of the burial grounds
and constituted competent evidence. Additionally, the Mahaffeys argued that
Wyatt and the Watsons breached various covenants contained in the general
warranty deed.
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By Order of Dismissal entered August 9, 2019, the circuit court
dismissed the Mahaffeys’ complaint without prejudice. The court reasoned that
the Mahaffeys “have been unable to prove with sufficient evidence the size of the
purported burial ground and the existence of any specific number of graves on the
property in question.” Order of Dismissal at 1. Curiously, the order did not
address Wyatt and the Watsons’ motion for summary judgment nor did the court
conduct a hearing thereon.
The Mahaffeys filed this appeal, and Wyatt and the Watsons filed a
cross-appeal from the Order of Dismissal. We shall address each seriatim.
STANDARD OF REVIEW
The standard of review on appeal of an order granting 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) (citing
Kentucky Rules of Civil Procedure (CR) 56.03). Upon a motion for summary
judgment, all facts and inferences in the record are viewed in a light most favorable
to the nonmoving party and “all doubts are to be resolved in his favor.” Steelvest,
Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991) (citation
omitted). Thus, if there are no factual issues, a summary judgment looks only to
questions of law, and we review a trial court’s decision to grant summary judgment
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de novo. Brown v. Griffin, 505 S.W.3d 777, 781 (Ky. App. 2016); see also
Blackstone Mining Co. v. Travelers Ins. Co., 351 S.W.3d 193, 198 (Ky. 2010), as
modified on denial of reh’g (Nov. 23, 2011).
APPEAL NO. 2019-CA-1309-MR
The Mahaffeys argue that the circuit court erroneously rendered
summary judgment dismissing their complaint. In particular, the Mahaffeys
contend that they presented sufficient evidence concerning the size of the burial
ground to withstand summary judgment. In support thereof, the Mahaffeys point
to Leftwich’s survey of the burial ground that established the boundary lines of the
burial ground. The Mahaffeys also reference Leftwich’s deposition testimony and
the deposition testimony of Arms. The Mahaffeys maintain that Arms stated that
he and his grandfather frequently visited the burial grounds upon the 2.03-acre
tract and that he had continued to visit the burial grounds after his grandfather’s
death. The Mahaffeys also point to Arms’ statements that he was familiar with the
extent of the burial grounds located upon the property.
Conversely, Wyatt and the Watsons argue that the Mahaffeys failed to
“present substantial, credible evidence that purported graves cover any specific
area.” Wyatt and the Watsons’ Brief at 12. Wyatt and the Watsons argue that the
survey performed by Leftwich is not a lawful survey because Leftwich failed to
“start from at least two (2) monuments.” Wyatt and the Watsons’ Brief at 15.
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Also, Wyatt and the Watsons contend that Leftwich’s survey is improper because
Leftwich included an area thereupon that was based upon Arms’ statements. And,
as to Arms’ depositional testimony, Wyatt and the Watsons believe that such
testimony cannot constitute competent evidence because Arms is not an expert in
forensics.
In this case, the record included the deposition testimony of Leftwich,
a licensed professional surveyor, and a plat, completed by him, depicting the
boundaries of the burial grounds upon the 2.03-acre tract. According to Leftwich’s
deposition, the survey of the burial grounds was based, in part, upon Leftwich’s
observations of fieldstones and sunken ground consistent with the dimensions of a
grave and, in part, upon Arms’ statements made to Leftwich. When Leftwich was
actually performing the survey, Arms was physically present and pointed out to
Leftwich a particular area where he believed burial grounds were located but were
no longer visible due to excavation activities carried out by the Mahaffeys. On the
actual plat, Leftwich indicated this area by specially highlighting same and
indicting that this area was based upon “parol evidence” of Arms. As to the lack of
two monuments, Leftwich explained that the survey was not based upon a grant of
land by deed where monuments would be relevant. Rather, Leftwich explained
that no such monuments would exist when initially locating boundaries of old
burial grounds.
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And, we again note that the circuit court did not conduct a hearing or
make any findings and conclusions as to the expert testimony of Leftwich.
Notably, the circuit court never concluded that Leftwich did not qualify as an
expert witness or that his expert opinions were inadmissible. Kentucky Rules of
Evidence (KRE) 104, KRE 702, KRE 703; Goodyear Tire & Rubber Co. v.
Thompson, 11 S.W.3d 575, 577-79 (Ky. 2000). In the absence thereof and in view
of the fact that Leftwich is a licensed surveyor, we believe his deposition testimony
and survey were competent and probative evidence. His deposition testimony
stands unrefuted in the record of this case. And, while Arms cannot offer any
expert opinions, he may, of course, testify concerning his personal knowledge of
the property and burial grounds. KRE 602; KRE 701. In his deposition, it is clear
that Arms frequently visited the burial grounds over his lifetime. Thus, he
undoubtedly observed the burial grounds over many years and can testify as to the
extent of the burial grounds based upon his personal observations.
Considering Leftwich’s testimony and survey alone, we believe the
Mahaffeys presented sufficient evidence as to the boundary or size of the burial
grounds upon the 2.03-acre tract to create a genuine issue of material fact and
survive summary judgment. In short, we are compelled to conclude that the circuit
court erred by finding that the Mahaffeys failed to prove the size of the burial
grounds.
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Given that the order on appeal dismisses the case without any findings
or legal analysis, we do not reach the merits of the underlying claims, including
any alleged breach of covenants in the general warranty deed. This Opinion
narrowly addresses whether the Mahaffeys presented sufficient evidence as to the
size of the burial grounds to survive summary judgment, as the inadequacy of such
evidence appears to be the basis for the circuit court’s order of dismissal. Thus, we
remand for a trial on the merits and any other necessary proceedings to resolve the
Mahaffeys’ claims for relief.
CROSS-APPEAL NO. 2019-CA-1355-MR
We have reviewed Wyatt and the Watsons’ cross-appellants’ brief;
however, we were unable to discern any issue of error raised in the cross-appeal.
In Wyatt and the Watsons’ prehearing statement, they raised several issues of
error; however, none of these was included or addressed in their brief. See Sallee
v. Sallee, 142 S.W.3d 697, 698 (Ky. App. 2004). Hence, we summarily affirm the
cross-appeal.
In sum, we are of the opinion that material issues of fact exist that
precluded summary judgment and that the circuit court erred by dismissing the
Mahaffeys’ complaint.
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For the foregoing reasons, we vacate and remand Appeal No. 2019-
CA-1309-MR for proceedings consistent with this Opinion and affirm Cross-
Appeal No. 2019-CA-1355-MR.
ALL CONCUR.
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEES:
Bobby H. Richardson Harlan E. Judd, III
Glasgow, Kentucky Bowling Green, Kentucky
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