B.J. Weltman A.K.A. B.J. Sewell-Weltman v. Javan Montgomery ( 2021 )

RENDERED: SEPTEMBER 17, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1252-MR
B.J. WELTMAN A.K.A. B.J. SEWELL- APPELLANT
WELTMAN
APPEAL FROM SPENCER CIRCUIT COURT
v. HONORABLE CHARLES R. HICKMAN, JUDGE
ACTION NO. 18-CI-00049
JAVAN MONTGOMERY;
LIGHTHOUSE PROPERTY
MANAGEMENT, LLC A.K.A. LPM,
LLC; AND SAFE HARBOR
INVESTMENTS INC. APPELLEES
OPINION
AFFIRMING
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BEFORE: ACREE, COMBS, AND MAZE, JUDGES.
COMBS, JUDGE: This case involves two issues: that of a deed purporting to
convey a life estate as well as that of an allegedly wrongful eviction. Appellant,
B.J. Weltman, a.k.a. B.J. Sewell-Weltman, appeals a summary judgment of the
Spencer Circuit Court entered in favor of Appellees: Javan Montgomery;
Lighthouse Property Management, LLC, a.k.a. LPM, LLC; and Safe Harbor
Investments Inc. (referred to collectively as “Montgomery”). Weltman argues that
the circuit court erred in its construction of a document prepared by Montgomery
entitled “Life Estate Deed.” Separately, she argues that the court erred by
dismissing her wrongful eviction claim. After our review, we affirm.
For many years, Weltman and her husband, Jerry Sewell, lived in an
apartment in a converted barn at 1537 Brashear’s Creek Road in Taylorsville,
Kentucky. They resided on the property by virtue of a written lease agreement
between Montgomery and Taylorsville Lake Marina. Sewell performed
maintenance work at the marina and repaired boats brought to the property.
Montgomery and Sewell shared a close and extended working relationship.
Montgomery referred to Sewell as his “right-hand man.” He allowed Sewell to
live in the apartment without paying rent. When they married, Weltman also
resided with Sewell at the apartment.
On June 23, 2017, Montgomery executed a document that he drafted
entitled “Life Estate Deed.” The document provided, in relevant part, as follows:
This deed is made on this day of June 23, 2017, (sic)
between the Grantor Javan Montgomery / Lighthouse
Property Management / Safe Harbour Investments of
Address (sic) P.O. Box 98 Simpsonville, Ky. 40067 and
the Grantee Jerry Sewell and BJ Sewell Weltman of
address (sic) 1537 Brashears Creek Rd. Taylorsville, Ky,
40071. WITNESSETH, That the Grantor for good and
valuable consideration paid by the Grantee for his
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faithfulness of service, work commitment, and lifelong
friendship the receipt of which is hereby acknowledged,
does grant a lifetime residency in any property owned by
Javan Montgomery or Lighthouse Property Management
or Safe Harbour Investments: Property Address: Any
residential property located in either Kentucky or Florida
for the remainder of Jerry Sewell or BJ Sewell
Weltman’s life. Javan Montgomery’s estate will be
responsible for property insurance, property taxes, and
property will remain unencumbered by a mortgage. If
property has a mortgage Javan Montgomery’s estate will
be responsible for paying the mortgage as agreed.
Grantee will be responsible for any upkeep of the
property and any general maintenance. Capital
improvements (HVAC, roof, windows, specifically any
items over $5,000) will be considered responsibility of
Grantor / Javan Montgomery’s estate.
Legal Description: Property can be chosen by Grantee
and changed by Grantee with the understanding that
Javan Montgomery’s wife (1), children (2), and parents
(3) have first priority choice in that order.
[No description of any property followed despite this
recitation above and the reference below.]
EXPRESSLY RESERVING Life Estate in the above
described property unto the Grantor and its assigns. The
Grantor shall have full ownership, possession, and use of
the property while living. Upon the expiration of the
Grantor’s natural life, the ownership, rents, revenues and
profits of the above described property shall remain in
Javan Montgomery’s estate.
Weltman is in possession of the instrument.
Jerry Sewell passed away on December 14, 2017. By correspondence
dated February 23, 2018, Weltman advised through counsel that she would
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exercise her right under the provisions of the deed to make “an election as to which
property owned by Lighthouse Property Management and/or Safe Harbour
Investments or you personally [I] will elect to reside in in the near future.”
Weltman indicated that she did not want to continue residing at the Spencer
County property and asked for a list of properties chosen by Montgomery’s wife,
children, and parents so that those could be eliminated from her array of choices.
Thereafter, Montgomery provided Weltman with notice of eviction.
On March 29, 2018, Weltman filed a complaint and petition for a
declaration of rights. She sought compensatory damages for wrongful eviction and
a declaration of her rights under the terms of the deed. In an amended complaint,
filed on June 8, 2018, Weltman asserted a cause of action for slander of title.
Montgomery answered and denied that the deed conveyed any interest in any real
property.
Following an evidentiary hearing, the parties filed competing motions
for summary judgment. In an order entered on August 12, 2020, the circuit court
concluded that the instrument relied upon by Weltman was ineffective to transfer
any interest in real property. Having determined that Montgomery had been
divested of no interest in the property by the provisions of the disputed deed, the
court concluded that Weltman had no enforceable interest in the residence at
Brashear’s Creek Road. Consequently, it ordered Weltman to vacate the premises
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within thirty (30) days. Weltman filed a subsequent motion to alter, amend, or
vacate, which was denied. This appeal followed.
On appeal, Weltman argues that the circuit court erred by granting
Montgomery’s motion for summary judgment. She contends that the deed was
duly executed and delivered and that the description of the property is sufficient to
convey to her a life estate in a parcel of real property that she selects. Separately,
Weltman argues that the circuit court erred by dismissing her claim for wrongful
eviction.
A motion for summary judgment can be granted only where “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 a judgment as a matter of
law.” CR1 56.03. Summary judgment is appropriate where the movant shows that
the adverse party could not prevail under any circumstance. Pearson ex rel. Trent
v. Nat’l Feeding Sys., Inc., 90 S.W.3d 46 (Ky. 2002). We review the trial court’s
decision to grant summary judgment de novo. Caniff v. CSX Transp., Inc., 438
S.W.3d 368 (Ky. 2014). We consider first whether the circuit court erred by
concluding that there were no genuine issues as to any material fact and that
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Kentucky Rules of Civil Procedure.
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Montgomery was entitled to judgment as a matter of law with respect to the
disputed deed.
An interest in real property is conveyed by deed only where there is
delivery of the deed with an intention to pass title. McCaslin v. Hamilton, 726
S.W.2d 713 (Ky. App. 1987). Where the intention of the grantor is that title will
pass if and when something else happens, the manual transfer of possession of the
deed to a grantee does not constitute such delivery as will divest a grantor of title.
Hood v. Nichol, 236 Ky. 779, 34 S.W.2d 429 (1931). Title to property does not
pass to a grantee where there is an understanding that title will pass from the
grantor only upon the contingency of the death of the grantor before that of the
grantee. Id.Pursuant to the provisions of the disputed deed, Montgomery was to
retain “full ownership, possession and use of the property while living.” A life
estate in property to be identified at a later time was to be conveyed to the grantees
only if Montgomery predeceased them. Because the conveyance was contingent
upon Montgomery’s death, the circuit court did not err by concluding that the deed
conveyed no interest in property to Weltman.
Nor did the court err by dismissing Weltman’s claim for wrongful
eviction. Before these proceedings were initiated, Montgomery provided to
Weltman notice of eviction. In her complaint, Weltman alleged that
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Montgomery’s “threats of forcible detainer” were made in violation of her right to
possess the property by virtue of the disputed deed. She sought to enjoin any
interference with her right to the life estate and damages arising therefrom.
The circuit court correctly determined that the disputed deed conveyed
no interest in any property to Weltman; therefore, it did not err by dismissing the
claim that she asserted based upon her right to possess the property pursuant to the
disputed deed.
The judgment of the Spencer Circuit Court is AFFIRMED.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
C. Gilmore Dutton, III Paul A. Zimlich
Shelbyville, Kentucky Taylorsville, Kentucky
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