Date: 01-20-2007

Case Style: Terry Malin and Nancy Malin v. Dewayne Jones and Rhonda Jones, et al.

Case Number: 2004-CA-001818-MR

Judge: Barber

Court: Commonwealth of Kentucky Court of Appeals on appeal from the Circuit Court of Laurel County

Plaintiff's Attorney:

Marcia A. Smith, Corbin, Kentucky

Defendant's Attorney:

W. PATRICK HAUSER, Barbourville, Kentucky for Dewayne Jones and Rhonda Jones

Stephen W. Cessna, London, Kentucky for David Travillian and Donna Travillian

Franklin A. Stivers, London, Kentucky for Hughes Bennett and Essie Bennett

Jeffrey T. Weaver, London, Kentucky for Cumberland Valley National Bank and Trust Company

Description:

These appeals originate from rulings of the Laurel Circuit Court regarding a parcel of real property. Appellants, Terry and Nancy Malin, appeal the trial court's dismissal of their claims against Appellees/Cross-Appellants, Dewayne and Rhonda Jones; Appellees, David and Donna Travillian; and Appellee, Cumberland Valley National Bank. The Joneses appeal the dismissal of their claims against the Bennetts.

This is the second time this matter has been before our court.3 However, we dismissed the prior appeals as interlocutory and remanded accordingly. Following remand, the trial court entered a final order in this matter. It is from this order and all interlocutory orders to which the parties appeal. We first examine the complex history behind these appeals.

BACKGROUND

On December 19, 1995, the Joneses purchased a parcel of property from the Bennetts to build a service station and convenience store.4 The parties also signed an Option to Purchase Real Property (Option) that same day.5 It is from this document which the controversy first arose.

The Bennetts later sold a parcel of property to the Travillians in April 1996. The Travillians sold their property to the Malins in March 1997. In 2001, the Malins entered into a written contract to sell their home to a third party. A title examination by the third party's lender concluded there was a title defect due to the Option.

In an effort to resolve the matter without litigation, the Malins' attorney contacted the Joneses' attorney to request a release of the Option for $500.00.6 The Joneses' replied they would release their Option for $2,500.00.7 The Malins' then asked the Travillians to pay them $2,500.00 in lieu of a suit for breach of warranty.8 The Travillians declined. The Malins' sale fell through and they were forced to continue paying the mortgage on a home they no longer lived in. Litigation followed shortly thereafter.

* * *

Outcome: We affirm the summary judgments awarded to the Malins and Bennetts declaring the Option void and to the Travillians declaring the Option inapplicable to the property. We affirm the trial court’s dismissal of all claims against the Bennetts22 and the dismissal of the Malins’ claims against the Bank. We vacate that portion of summary judgment based on a breach of fiduciary duties by the Bank to the Malins because it was not properly before the trial court. We vacate the trial court’s sua sponte award of summary judgment to the Joneses against the Malins and remand for further proceedings.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None