Opinion
NO. 2012-CA-001483-MR
02-27-2015
JOHN C. PEABODY; LUE D. PEABODY; LEONA S. NICHOLS; JAMES A. WADDELL, JR.; AND LINDA M. WADDELL APPELLANTS v. LETA GIPSON AND CHERYLYN BAKER APPELLEES
BRIEFS FOR APPELLANTS: Dennis J. Stigler Louisville, Kentucky BRIEF FOR APPELLEES: Ben J. Talbott, Jr. Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE A. C. MCKAY CHAUVIN, JUDGE
ACTION NO. 11-CI-004715
OPINION
AFFIRMING
BEFORE: JONES, J. LAMBERT, AND STUMBO, JUDGES. STUMBO, JUDGE: Appellants appeal from an order granting summary judgment in favor of Leta Gipson. We believe summary judgment was properly granted in Ms. Gipson's favor and affirm.
The Washington Elms Condominium houses six residential apartments. Appellants are the owners of apartment numbers three and six. Ms. Gipson is the undisputed owner of apartment numbers one and two. On August 26, 2010, Elizabeth Bird, Ms. Gipson's daughter, gifted apartment number four to Ms. Gipson. On or about June 15, 2011, Cherylyn Baker sold apartment five to Ms. Gipson.
Elizabeth Bird is now deceased.
Appellants brought the underlying case because they believed Ms. Gipson violated certain provisions set forth in a Master Deed. Specifically, Ms. Gipson is accused of not giving prior notice of her intent to buy apartment numbers four and five, that she did not have authorization to build a wall and door in the hallway that separated apartments one and two, and that she did not have authorization to repaint a door casing on the outside of the building. The Master Deed provisions pertaining to these violations are:
I. Administrator or Managing Agent
Operation of the Project shall be conducted for the Council by the Board of Administration or by an Administrator (who may be the Developer or another responsible managing agent) who shall be appointed by the Council in accordance with the By-Laws. . . .
L. Compliance with Declaration, By-Laws and Decisions
All apartment owners, their tenants, families, servants and guests, and any other person who may in any manner use any part of the Project, shall be bound by and comply strictly with the provisions of this Declaration, the By-Laws of the Council, and all house rules, agreements, decisions and determinations of the Council, as lawfully made or amended from time to time. Failure to comply
with any of the same shall be grounds for an action to recover sums due, for damages or injunctive relief, or both, maintainable by the Administrator or Board on behalf of the Council, and in a proper case, by an aggrieved apartment owner. . . .
Q. Alteration of the Project
Restoration or replacement of the Project, or construction of any additional building or substantial structural alteration, or addition to any building, different in any material respect from the condominium plan of the Project, shall be undertaken by the Council or any Co-owners only after unanimous approval by the Board of Administration, who shall have the authority to amend this Declaration, with the written consent of the holders of all liens affecting any of the apartment, and in accordance with the complete plans and specifications approved in writing by the Board. . . .
U. Sale or Lease of Apartment
If any apartment owner other than the developer desires to sell or lease (rent) his apartment, he shall first give the Board of Administration, or the Administrator, at least ten days prior written notice of his intention to sell or lease, the notice containing the terms of the proposal.
The Washington Elms Condominium is to be administered by a Council of Co-owners made up of the owners of each unit. The owners of each apartment have voting rights which are derived from the percentage of the total square footage held in each apartment. The Council is charged with maintaining the common elements of the property in accordance with the Master Deed. The Council operates through a Board of Administration or by an Administrator. The Board or Administrator is to be appointed by the Council; however, there has never been a duly constituted Board or duly appointed Administrator.
In granting summary judgment, the trial court found, in part, that while Ms. Gipson may have violated some terms of the Master Deed, those terms could not be enforced against her. The terms all required some action on part of the Board or an Administrator, but because no Board or Administrator existed, the requirements set forth in those provisions were impossible to follow and were void. This appeal followed.
While we believe that the trial court was correct in its holding, we believe it is more prudent to affirm the summary judgment on other grounds. An "appellate court may affirm the judgment if the record on appeal discloses any ground on which the decision could properly have been made." Old Republic Ins. Co. v. Ashley, 722 S.W.2d 55, 58 (Ky. App. 1986) (citation omitted). Here, we believe Appellants did not have standing to bring the underlying suit. The proper party to bring this cause of action would be the Board or Administrator.
Kentucky Rules of Civil Procedure 17.01 provides, "Every action shall be prosecuted in the name of the real party in interest[.]" "The real party in interest is the one who is entitled to the benefits of the action upon the successful termination thereof." Brandon v. Combs, 666 S.W.2d 755, 759 (Ky. App. 1984). The real party in interest is the one "who has the right to control and receive the fruits of the litigation[.]" Taylor v. Hurst, 186 Ky. 71, 216 S.W. 95 (1919) (citation omitted). In the case at hand, the Board or Administrator would have been the real party in interest. As the trial court stated in its order, the Board or Administrator was to receive notice of the impending sale of apartment numbers four and five. Also, the Board or Administrator was to give Ms. Gipson permission before she made alterations to her apartments. Finally, section L of the Master Deed specifically states that failure to comply with the provisions of the Master Deed would be grounds for legal action "maintainable by the Administrator or Board."
Based on the foregoing reasons we affirm the order granting summary judgment in favor of Ms. Gipson.
ALL CONCUR. BRIEFS FOR APPELLANTS: Dennis J. Stigler
Louisville, Kentucky
BRIEF FOR APPELLEES: Ben J. Talbott, Jr.
Louisville, Kentucky