Opinion
NO. 2012-CA-002205-MR
05-01-2015
JERRY SHELLEY AND DARLENE SHELLEY APPELLANTS v. HAROLD R. KILBY AND PAULETTE KILBY APPELLEES
BRIEFS FOR APPELLANTS: Richard Clay Danville, Kentucky BRIEF FOR APPELLEES: J. Hadden Dean Danville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LINCOLN CIRCUIT COURT
HONORABLE DAVID A. TAPP, JUDGE
ACTION NO. 07-CI-00572
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; JONES AND MAZE, JUDGES. ACREE, CHIEF JUDGE: This is a boundary dispute case. At issue is whether the Lincoln Circuit Court erred in its placement of two disputed boundary lines and whether it erroneously rejected claims of adverse possession and champertous deeds. We find no error and affirm.
I. Facts and Procedure
The appellants, Jerry and Darlene Shelley, own land in Lincoln County, Kentucky (Shelley Property). Their property is roughly square-shaped. It is bordered on the west and south by Old South Fork Lake Road, on the north by real property owned by the appellees, Harold and Paulette Kilby (Kilby Property), and on the east by the "Fields Property," which is also now owned by the Kilbys. The Fields Property is bordered on the north by land owned by Estil Grubbs (Grubbs Property), who is not a party to this action. The Grubbs Property also forms the eastern boundary of the Kilby Property.
The Fields Property was once owned by Alice Kilby, single, and Charles and Patricia Fields, husband and wife. The Kilbys acquired the property from them in 2005. For clarification purposes, however, we will continue to refer to it as the Fields Property.
The principle dispute in this case centers on the proper location of the boundary line between the Shelley Property (north boundary line) and the Kilby Property (south boundary line). The disputed area is a triangle or pie-slice shaped parcel of land comprising approximately ten acres located at the southern part of the Kilby Property and the northern part of the Shelley Property. The "tip" of the pie lies to the west and the "crust" lies to the east. The land consists primarily of wooded hillside and ridge land, with a smaller, approximately one-half acre of tillable crop land. The tillable portion of the disputed area is a "peninsula-like" tract that merges into similar tillable land undisputedly owned by the Shelleys.
As explained more fully below, a second dispute exists with respect to a portion of the boundary between the Shelley Property (east boundary) and the Fields Property (west boundary).
The parties co-existed peacefully for several years. However, in early 2007, a dispute arose between Harold Kilby and Jerry Shelley as to the ownership of the pie-slice shaped area and the proper placement of the boundary line. Unable to resolve their differences, the Shelleys filed this declaration of rights action on November 15, 2007, under KRS 418.040, KRS 418.045, and CR 57. In their complaint, the Shelleys asked the circuit court to establish the Shelley Property's true and accurate boundaries.
Kentucky Revised Statutes.
Kentucky Rules of Civil Procedure.
The Kilbys filed a timely answer, which was superseded by an amended answer and a three-count counterclaim. The first count alleged superior title to the disputed area, the second adverse possession under KRS 411.120, and the third requested that the circuit court quiet title to a disputed fence line (the east/west boundary) between the Shelley Property and the Fields Property.
A bench trial was held on August 9, 2010. Both parties supplied the circuit court with a complete chain of title and copies of the deed under which they claimed the disputed pie-sliced shaped parcel. Both parties traced title to their land back to patents issued in the late 1800s.
The evidence revealed that the Shelleys acquired their property in 1986 by deed from Jesse Jacobs. The deed purported to convey 69.78 acres pursuant to a 1982 land survey completed by S.B. Riddle. Prior to 1982, the Shelleys' record chain of title described the property as totaling only 46 acres situated "north of the county road." Thus, prior to 1982, the Shelleys' predecessors in title never pursued a claim to 69.78 acres.
The Kilbys derived title to their land by two deeds. In 1996, immediately before the Kilbys obtained any interest in it, the property was owned jointly by Louise Kilby (Harold's mother) and Otis Kilby (Harold's uncle). Louise and Otis each held an undivided one-half interest in the land. By deed dated March 12, 1996, Louise conveyed her undivided one-half interest to the Kilbys. The second deed, dated July 2, 2002, came from Otis and conveyed Otis's remaining one-half interest in the land to the Kilbys.
The 1996 deed listed the acreage of the Kilby Property as "191 acres, 12 1/4 rods, according to the January 4, 1957 survey of Virgil Jones" while the latter, 2002 deed listed the acreage as "202.072 acres pursuant to the April 25, 1997 survey of Douglas Gooch." On page two of the 2002 deed, it explained the increased acreage, stating that certain property had been omitted from the earlier (1957) survey and this deed was intended to correct the description as well as vest fee-simple title to the entire property in the Kilbys.
The Shelley and Kilby deeds include different calls for the placement of the north/south boundary line. The Shelleys' deed calls for the disputed line to run with the Kilby Property "N 49°59'32" 1630 ft. to stake on ridge point just east of power pole and N 52°50'E 707 ft. to 20" beech in hollow, corner to Estil Grubbs" for a total distance of 2,337 feet. The corresponding call in the Kilbys' deed states the boundary line is to run "N 44-1/8 E 133 poles and 8-1/2 links to a stake in the mouth of a hollow" for a total distance of 2,261.82 feet.
Besides the documentary evidence, Bobby Hudson, a land surveyor, testified on the Shelleys' behalf and Douglas Gooch, a civil engineer and land surveyor, testified on the Kilbys' behalf. Hudson and Gooch agreed on many points. They agreed a disparity exists between the Shelley deed and the Kilby deed as to the placement of the northern/southern boundary line. They agreed that the deeds "are not correct" and contain significant errors. They further agreed that surveys performed in the 1960s through the 1980s were notoriously poor and plagued with problems and errors. Gooch testified that many surveyors in that era failed to reconcile deeds; rather, they merely mapped fences and landmarks and created a deed shape. According to Gooch, it was not uncommon for deeds to change significantly between links in the chain of title. Hudson agreed with Gooch's synopsis, adding there was a decrease in the standard of care utilized by land surveyors in the Lincoln County area in the 1970s and 1980s.
Hudson and Gooch (and the parties) agreed that the north/south boundary line started at a post beside the county road where the properties joined. They heartily disagreed, however, as to the terminus of that boundary line. Hudson testified the line terminated at a 28-inch beech tree with three hack marks and a ribbon on it. Gooch testified the line terminated at a 40-inch beech tree in a hollow. The 28-inch beech tree is situated approximately 400 feet due north of the 40-inch beech tree.
Hudson testified he relied heavily - if not exclusively - on the deed shape as determined by the 1982 Ridley survey and the metes and bounds description of the Shelleys' deed - also derived from the 1982 survey - in locating the boundary line; he did not rely on any other factors. According to Hudson, the line starts at the agreed upon corner post at the county road, runs N 49°59'32" E 1,529.06 feet to a 20-inch Sassafras tree, continues along that same bearing an additional 42.03 feet to an iron pin, then alters course to N 53°53'46" E 51.75 feet, then alters course again N 53°53'46" E 655.25 feet to a 28-inch beech tree with 3 hacks and a ribbon found in a hollow, for a total length of 2,278.09 feet. Hudson testified his placement of the line is similar, but not identical, to the bearings and calls contained in the Shelleys' deed. Hudson also admitted the boundary line, as located by him, encroaches into and overlaps the Grubbs Property.
In preparing his survey, Hudson conceded he did not do all he should have done: he did not survey adjoining properties; he did not talk to adjoining property owners (though he admitted he should have done so); and he did not explain or reconcile the overlap. Significantly, Hudson testified he did not survey the Shelley Property, but simply made a retracement of, i.e., plotted, the boundary lines as described in the Shelleys' deed and identified the overlap.
Gooch, the Kilbys' surveyor, disagreed with Hudson's placement of the north/south boundary line. Notably, Gooch explained that, when he encounters an overlap between two properties he: (1) runs the deeds backwards to see when the property shape came into being and (2) talks to adjoining property owners. Gooch testified the current Shelley deed shape came into being in 1982 pursuant to the 1982 Riddle survey. Gooch found that survey to contain numerous errors, including closure issues, gaps, and overlaps on the Grubbs, Fields, and Kilby Properties.
Gooch also discovered that the deed immediately preceding the 1982 survey stated that the Shelley Property comprised three tracts north of the county road. The first tract was 20 acres, the second tract 10 acres, and the third tract 16 acres for a total of 46 acres. Gooch concluded the 1982 survey, which inexplicably increased the Shelley Property from 46 acres to 69.78 acres, was not accurate and, in turn, the deeds going forward that relied on that survey - including the deed currently held by the Shelleys - were likewise inaccurate.
Gooch testified that defining the north/south line between the Shelley and Kilby Properties was incredibly difficult and could not be resolved by reference to deeds or prior surveys alone. Gooch undertook numerous efforts to accurately locate the line. He traced all the historic deeds for the Shelley, Kilby, Fields, and Grubbs Properties, and found those deeds to be mathematically incorrect and riddled with closure issues, overlaps, gaps, and ill-fitting deed shapes. Gooch pointed out that, even in the 1800s, the deeds did not fit together properly. Gooch also surveyed various properties, in their entirety, to ensure accuracy; talked to adjoining property owners; and considered the Kilbys' historic "area of possession" and remnants of an old fence line found near the boundary claimed by Kilby. Gooch explained he tried to: logically recreate the lines looking at all the deeds and patents for all the adjoining properties, reconcile the deeds with adjoining property owners, and to correct erroneous calls.
Ultimately, Gooch concluded the boundary line starts at the agreed upon post near the county road and strikes a course N 61°27'13" E a distance of 2,228.04 feet to a pin at a 40-inch beech tree in a hollow. Gooch explained that by anchoring the north/south line at the 40-inch beech, it creates a four-way corner between the Kilby, Shelley, Fields, and Grubbs Properties. In contrast, Gooch noted, Hudson's placement of the north/south boundary line encroached rather significantly on the Grubbs Property. Gooch testified his placement of the north/south boundary line was consistent with patents and deeds from the 1800s related to the Kilby Property.
Little attention was given at trial to the second boundary dispute in this case - the placement of a portion of the boundary line between the Shelley Property (east boundary) and the Fields Property (west boundary). Hudson testified the boundary starts at the 28-inch beech, runs south to the 40-inch beech discovered by Gooch, and then continues south a bit east (on the Fields side) of an old fence line. In plotting the line, Hudson relied solely on the deed currently held by the Shelleys, though he admitted that deed contained a closure error relative to the east/west boundary line and correcting that error could possibly shift the line west, closer to the old fence line. In contrast, Gooch testified that the Fields deed indicates the line is supposed to run with an old fence line, remnants of which are easily discernable. Accordingly, Gooch testified the east/west boundary starts at the 40-inch beech and runs south along the old fence line and the current tree line. Gooch explained that a closure error in the 1982 Riddle survey resulted in the east/west boundary encroaching upon the Fields Property; if that closure error is fixed, the Shelley deed closely matches the Fields deed as to the placement of the east/west boundary.
Finally, the parties - Jerry Shelley and Harold Kilby - testified on their own behalves. Jerry explained he grew up in the Lincoln County area, but not on the land in question. Jerry described the Shelley Property as a ridge top farm amenable to crops. After acquiring the Shelley Property, Jerry raised tobacco and hay, and ran cattle on it for 12 to 15 years. At one point, Jerry removed the original fence along the east/west boundary with permission from the prior property owner. Jerry admitted that at least one deed describes the east/west boundary line as an "old fence line in trees." In 1997, Jerry moved to Louisville, Kentucky. After that, he leased the Shelley Property to multiple individuals, including Harold Kilby. Jerry testified Harold leased all of his tillable land for the three years preceding this lawsuit. As evidence of the lease, Jerry introduced the form of a USDA "Report of Commodities."
Jerry admitted the acreage in his deed - 69.78 acres - came from the 1982 survey, not from a prior deed. He further acknowledged that, prior to 1982, the area of his property was listed as 46 acres. Jerry attempted to explain the increased acreage, stating:
Now there is another tract . . . and there is also . . . something that's not in this either . . . either one of these that's mentioned. And it is, the 55-acre land grant and also there is a tract off of the . . . a sawmill tract that when Chester Bastin sold it to Mark Ponder, there were two tracts, he sold one and kept one. And that other tract is mentioned by the . . . deed . . . . It's tract two, Book
138, page 181 to 184. And it describes the process that they went through to come up with that. Basically, he is claiming it had been in the useful possession of their family for over 60 years, and if I'm not mistaken it's 15 or 16 acres. So that . . . brings you up closer to the 69.78.The circuit court found Jerry's testimony to be confusing and ambiguous, and ultimately assigned it no weight.
Harold testified he grew up on the Fields Property (the property of his maternal grandparents) and the Kilby Property (the property of his paternal grandparents). He described how he and other family members crossed the pie-slice shaped area daily as they travelled between the two properties. To improve access, Harold testified that, when he acquired the property, he built a road between the Kilby and Fields lands.
Harold acknowledged he leased Jerry's tillable land to grow alfalfa, but asserted the cleared peninsula-like tract in the disputed pie-slice shaped area was not part of that lease. Harold believed he owned that peninsula-like tract and testified he did not need to lease his own land. Harold testified that for many years an old fence ran along the southern part of that tract near a utility pole, and his family believed that fence marked the southern boundary of the Kilby Property. Harold presented oral and photographic evidence of that fence. Likewise, Gooch and Hudson both found remnants of the fence. Harold also testified that a fence marked the east/west boundary between the Shelley and Fields Properties until it was removed by Jerry Shelley.
Thereafter, additional evidence was taken by deposition and the matter submitted for decision. At the circuit court's request, the parties each furnished proposed findings, conclusions, and judgments. In the Shelleys' proposed findings and conclusions, they asserted, for the first time, that they held title to the pie-slice shaped area under a theory of adverse possession and also argued, for the first time, that the 1996 and 2002 deeds conveying the Kilby Property to the appellees were champertous and void under KRS 372.070(1).
The circuit court entered its findings of fact, conclusions of law and judgment on August 31, 2012. The circuit court determined that the two boundaries would be defined and established using Gooch's property lines. The circuit court explained:
In so finding, the circuit court effectively rejected the Kilbys' and the Shelleys' respective claims of adverse possession.
When viewed alongside each other, the Court finds the testimony of Gooch more credible than that of Hudson. While the Court believes Hudson to be a competent surveyor, his involvement in (and therefore knowledge of) this particular case is lacking. Furthermore, Gooch's survey is more thorough and its accounting for adjoining properties makes it the better determination of the line.(R. at 447). The circuit court further noted that Hudson relied solely on the language of the Shelleys' deed in placing the north/south boundary line, despite admitting that deed is "not correct." The circuit court found Hudson's methods and placement of the line suspect and chose, instead, to rely on Gooch's testimony and line placement because Gooch "made an effort to reasonably resolve the flawed deeds consistently with adjoining landowners."
In light of the burden of proof being upon Shelley, the Court finds the weight of the evidence to be in favor of Kilby. Kilby's actions tend to show his belief as to where the property line was located, and both surveyors found fence line in and around the area where surveyor Gooch has placed the boundary. Although Kilby's actions are perhaps not sufficient to establish title by adverse possession, they do tend to show Kilby's belief that the property line was approximately where Gooch has placed it. In addition, the Court finds Gooch's survey and plat to be more thorough than Hudson's. This is supported by Hudson's testimony was that he was sure Gooch's calculations were correct. Hudson also testified that his only involvement in the trial was "just being there" and that he did not survey abutting properties and attempt to resolve overlaps or errors, which runs afoul of the minimum standards of KRS § 322.180. As such, Shelley has not met his burden of proving the boundary line. Any confusion must be resolved against him.(R. at 454).
The Shelleys timely appealed.
II. Standard of Review
Our review of a circuit court's findings of fact following a bench trial is to determine whether those findings are clearly erroneous. CR 52.01. This rule applies with equal force to matters involving boundary disputes. Croley v. Alsip, 602 S.W.2d 418, 419 (Ky. 1980). Factual findings are clearly erroneous if unsupported by substantial evidence. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). Substantial evidence is "some evidence of substance and relevant consequence, having fitness to induce conviction in the minds of reasonable people." Abel Verdon Const. v. Riveria, 348 S.W.3d 749, 753 (Ky. 2011). Our role as a reviewing court prohibits us from disturbing the circuit court's factual findings that are supported by substantial evidence, despite whether we would have reached a contrary conclusion. Moore, 110 S.W.3d at 354. We defer to a significant degree to the circuit court, for it had the opportunity to observe, scrutinize and assess the credibility of witnesses. CR 52.01; Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998).
Notwithstanding the deference due the circuit court's factual findings, its conclusions of law, reached after making its findings, are reviewed de novo. Hoskins v. Beatty, 343 S.W.3d 639, 641 (Ky. App. 2011).
III. Analysis
The Shelleys present four arguments for our consideration. They argue the circuit court: (a) incorrectly located the disputed boundary lines; (b) erred when it rejected their claim that Harold Kilby, a tenant of Jerry Shelley, was estopped from contesting the Shelleys' title to the property at issue; (c) improperly disregarded their adverse-possession claim; and (d) erred in upholding champertous, void deeds.
A. Northern and Eastern Boundaries
The Shelleys first argue that the circuit court erroneously relied on the testimony presented by Gooch as to the placement of the disputed boundary lines. They argue Gooch's plat was unreliable because he failed to heed the language of the deed held by Kilby which stated that the north/south boundary line ended in the "mouth" of a hollow (foot of a hill). The Shelleys claim Gooch ignored this call and, instead, anchored the line in a beech tree at the "head" of a hollow (top of a hill or ridge). Along these same lines, the Shelleys contend the circuit court erred when it accepted Gooch's testimony that the east/west boundary line commences at the 40-inch beech tree. We are not persuaded by these arguments.
The Shelleys concede that their deed merely directs the line to terminate in a "hollow" and contains no description, i.e., "mouth" or "head," of that hollow.
In determining the location of property boundary lines, natural and permanent monuments (such as roads, rivers, or trees) take precedence, for they "are the most satisfactory evidence and control all other means of description." Metropolitan Life Ins. Co. v. Hoskins, 117 S.W.2d 180, 182 (Ky. 1937). Absent natural and permanent monuments, artificial marks or monuments (such as iron pins or fences), courses and directions (in degrees and seconds), "distances, and area follow in the order named, area being the weakest of all the means of description." Id.; Wagers v. Wagers, 238 S.W.2d 125, 126 (Ky. 1951). Furthermore, "[a] fact-finder may choose between the conflicting opinions of surveyors as long as the opinion relied upon is not based upon erroneous assumptions or fails to take into account established factors." Webb v. Compton, 98 S.W.3d 513, 517 (Ky. App. 2002)(quoting Howard v. Kingmont Oil Co., 729 S.W.2d 183, 184-85 (Ky. App. 1987)).
Both surveyors in this case agreed that the Kilby and Shelley deeds contain errors and are simply inaccurate. In light of these errors, reliance on the language and calls of those deeds alone cannot be the basis for fixing the boundary lines. As found by the circuit court, Gooch engaged in a rational, logical attempt to place the boundary lines, taking into account all established factors, including not only the calls of the current Shelley and Kilby deeds, but also ancient deeds in the parties' chains of title, the deed shapes, evidence of possession, and adjoining property owners. Based on these factors, the circuit court found Gooch's testimony and survey credible and compelling.
Like most boundary-dispute matters, much of the evidence in this case was wholly conflicting, and the circuit court was forced to choose a side. The circuit court was free, as it did, to believe Gooch's testimony and accept his placement of the boundary lines. And Gooch's testimony certainly amounts to substantial evidence to support the circuit court's decision. The Shelleys have presented no persuasive grounds upon which to disturb the circuit court's findings as to the proper placement of the boundary lines.
B. Estoppel
The Shelleys next argue that the circuit court erred when it refused to recognize that Harold's status as a tenant of Jerry prevented him from contesting the Shelleys' title to the pie-slice shaped area. The Shelleys point to the undisputed evidence that in 2007, and for more than two years before that, Harold cultivated alfalfa on their farm pursuant to a lease agreement. They claim that the commodities report is evidence of that lease and the amount of land under the lease, which was approximately 25 acres. The Shelleys assert that the existence of that lease, and Harold's benefitting from it, estops him from disputing their title to the property. To support their argument, the Shelleys rely exclusively on language appearing in South v. Deaton, 68 S.W. 137 (Ky. 1902):
As to the statements admitted of various lessees, that they and others in like position claimed to hold in their own right the lands occupied by them, it may be said that this is not a case between such lessees and their landlord, in which an estoppel would arise, subject to be avoided by an averment and proof of fraud or mistake, but a case which is, in effect, an action in ejectment, in which the plaintiff seeks to recover on the strength of a possessory title, and the defendant denies the possession upon which the plaintiff relies. The landlord, in order to show that he has held possession of all the land in the valley, shows that he has leased various parts of the land which are not in controversy. This is admissible, because those facts show an exercise of ownership over parts of the boundary claimed, and, so far, tend to support his claim of possession of all the land. If those tenants should undertake to show an adverse title as against the landlord, they would be estopped, unless they could show facts to avoid the estoppel. But there is no question here between them and the landlord.Id. at 139. The Shelleys argue that, under the rule in Deaton, a tenant who receives the benefits of the occupancy of the property is estopped from questioning the landlord's title. Accepting as true the Shelleys' interpretation of Deaton, we are not convinced the rule applies in this case.
Here, the circuit court found no formal lease between the parties. Instead, the circuit court concluded that Jerry and Harold had entered into a verbal lease whereby Harold would grow alfalfa on approximately 25 acres of the Shelley Property. The parameters of that lease remain largely unknown. The evidence suggested to the circuit court that Jerry leased only part of the Shelley Property to Harold, and that the peninsula-like tract contained in the disputed pie-slice shaped area was not part of that lease. The circuit court specifically pointed to Harold's testimony that he "had no reason not to seed his own property." Thus, while the Kilbys may have been estopped from disputing the Shelleys' title to the portions of their land that fell under the lease, the circuit court was clearly not convinced that the peninsula-like tract in the pie-slice shaped area was included in that lease. As such, the rule in Deaton did not operate to estop the Kilbys from asserting title to the peninsula-like tract and the remainder of the pie-slice shaped area. We reject the Shelleys' assertion of error.
We pause to reiterate that the vast majority of the land in the pie-shaped area consisted of wooded hillside; the parties agree only the cleared peninsula-like tract was appropriate for growing hay.
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C. Adverse Possession
The Shelleys next assert that the circuit court erred when it denied their claim for adverse possession. In response, the Kilbys point out that the Shelleys did not assert a claim of adverse possession in either their pleadings or their proof. The Kilbys' position is well-taken.
A review of the Shelleys' complaint reflects they asserted no claim for adverse possession. They merely claimed superior paper title to the disputed land by virtue of the deeds and patents contained in their chain of title and, based on their superior paper title, sought a declaratory judgment establishing the true and accurate boundaries between the parties. In other words, the Shelleys never asserted in their complaint that they held superior title based upon a theory of adverse possession. They advanced that position for the very first time in their proposed findings of fact, conclusions of law and judgment submitted nineteen months after the August 2010 bench trial and over four years after filing their complaint.
The Shelleys were certainly permitted to, but did not, attach a claim of adverse possession to their declaration of rights request. KRS 418.040 ("[T]he plaintiff may ask for a declaration of rights, either alone or with other relief[.]"). Likewise, the Shelleys could have, but did not, move to amend their complaint to conform to the evidence. CR 15.02. The Shelleys' belated adverse-possession claim was never properly before the circuit court. Therefore, the circuit court committed no error when it disregarded the Shelleys' argument that they were entitled to a ruling regarding their adverse possession of the land.
D. Champertous Deeds
Finally, the Shelleys argue that, because they held, at the very least, title to the disputed pie-slice shaped land under adverse possession when the Kilbys' predecessors allegedly conveyed the land to them in 1996 and 2002, those deeds were champertous and void under KRS 372.070(1). A protracted discussion of KRS 372.070(1), also known as the "champerty statute," is unwarranted. Suffice it to say that the statute "operates to void a conveyance of land by a grantor to a grantee when such land is being held adversely by a third party." Henninger v. Brewster, 357 S.W.3d 920, 925 (Ky. App. 2012) (citing Cowherd v. Brooks, 456 S.W.2d 827, 830 (Ky. 1970)). In this case, for the reasons discussed in the preceding section, the circuit court made no finding that the Shelleys adversely possessed the disputed property. Accordingly, the Shelleys' champertous-deeds argument necessarily fails.
IV. Conclusion
We affirm the August 31, 2012 order of the Lincoln Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANTS: Richard Clay
Danville, Kentucky
BRIEF FOR APPELLEES: J. Hadden Dean
Danville, Kentucky