Opinion
NO. 2018-CA-001409-MR NO. 2019-CA-000151-MR
05-01-2020
DAVID HENRY WISE APPELLANT v. RICKY NEWTON AND RHONDA NEWTON APPELLEES
BRIEF FOR APPELLANT: James T. Kelley Elizabethtown, Kentucky BRIEF FOR APPELLEES: Dwight Preston Elizabethtown, Kentucky
NOT TO BE PUBLISHED APPEALS FROM HARDIN CIRCUIT COURT
HONORABLE KELLY MARK EASTON, JUDGE
ACTION NO. 17-CI-01042 OPINION
AFFIRMING
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BEFORE: LAMBERT, MAZE, AND L. THOMPSON, JUDGES. MAZE, JUDGE: David Henry Wise ("Wise") brings these consolidated appeals from a judgment and post-judgment orders of the Hardin Circuit Court in favor of Ricky and Rhonda Newton (collectively, "the Newtons"). Wise argues that the trial court erred by finding that the Newtons had adversely possessed several areas along their common boundary. He further argues that the trial court erred by awarding the Newtons compensatory and punitive damages for his conversion of stone left on the boundary of the Newtons' property. In light of the limited preservation of these issues, we must conclude that the trial court's findings were not clearly erroneous. Hence, we affirm.
I. Factual and Procedural History
Wise does not significantly dispute the relevant facts of this case as set out in the trial court's judgment. In 1936, Henry Berry, Wise's grandfather, purchased a farm of over 100 acres. For many years, access from Rineyville-Big Springs Road (KY 220) led to a farmhouse on the property. Eventually, Henry's widow, Ruby Berry, built a newer home on the farm closer to the road. That house is located on what is now Lot 13 of the Wise-Berry Estates. The Newtons have owned this home since 2000.
Shortly before the Newtons purchased Lot 13, the Wise-Berry family prepared a subdivision plat dividing a portion of the farm property. The plat further provided that "There shall be an ingress and egress easement along the existing drive for Lot 13 and the balance of the property and Deed Book 95, Page 589." This easement encompassed an existing driveway leading to the house on Lot 13. The driveway was paved, including a small circle adjacent to the house. From that paved driveway, a dirt and sometimes gravel driveway veered off the west from the newer house toward the old farmhouse. Another similar unpaved lane went further to the north and horizonal to a barn on the Wise-Berry farm. The old farmhouse was occupied until 2007 when it burned to the ground. Occasionally, people other than the Newtons would use the paved driveway to get to the old farmhouse or for other purposes on the farm.
The Wise-Berry family owned the remainder of the farm and some additional platted lots until 2006, when it was sold to the Kentucky Land Company. Wise regained ownership of the remainder of the farm in 2017. Immediately, Wise began to reassert claims to the lines of the property as previously marked in 2000. Wise began construction of a fence consisting of rough locust tree posts with a planted gate across the driveway. The planned gate would have required the Newtons to have a key to open the gate to access their property. Wise also blocked the dirt and gravel area of the driveway with a tractor and bush hog attachment. That action led to a confrontation between Wise and Ricky Newton on February 14, 2017. A separate dispute also arose after the Newtons removed some Bedford Stone from their house. They placed the stone in an area near the boundary of the properties to the northwest. Wise removed a portion of this stone to construct an entrance sign to a subdivision he was developing on his property.
The Newtons filed a complaint in this action on June 14, 2017. In addition to their claims that Wise had improperly blocked the easement, the Newtons alleged that they were entitled to ownership of portions of the property adjacent to the easement by adverse possession. They also asserted claims for Wise's conversion of the stone.
After the Newtons filed their complaint, the trial court issued a temporary injunction which prohibited Wise from interfering with the easement. Wise, appearing pro se, did not file a formal answer. Nevertheless, the trial court denied the Newtons' motion for summary judgment and allowed the matter to proceed. The case proceeded to a bench trial on June 13, 2018. In addition to considering the testimony and evidence presented by the parties, the court also personally viewed the properties.
Wise attempted to assert several counterclaims against the Newtons. However, the trial court found that his hand-written claims did not satisfy the procedural requirements of Kentucky Rules of Civil Procedure (CR) 13.06. The court found that Wise's claims failed to state valid causes for relief. Wise does not appeal from the trial court's dismissal of these claims. --------
Thereafter, on July 20, 2018, the trial court entered findings of fact, conclusions of law, and a judgment for the Newtons on all of their claims. The trial court first found that Wise had improperly interfered with the Newtons' use of their express easement of the driveway. Similarly, the court found that Wise had improperly interfered with the Newtons' use of the unpaved lane leading to the barn, which they had acquired by prescriptive right. The trial court next found that the Newtons had shown that they had adversely possessed the area along the paved driveway, the unpaved lane leading to the barn, and another tract on the east side of their property. Finally, the trial court found that Wise had improperly converted the stone from the Newtons' home.
The trial court awarded only nominal compensatory damages for Wise's interference with the easements but imposed $3,000 in punitive damages. The trial court also awarded the Newtons $2,500 in compensatory damages and $4,000 in punitive damages for Wise's conversion of the stone. In addition, the trial court permanently enjoined Wise from interfering with the Newtons' use of the driveway easement. Finally, the court directed the Newtons to have a survey performed and a new plat prepared to reflect the boundaries of their property as found in the judgment.
Following entry of this judgment, Wise, now represented by counsel, filed a motion to alter, amend, or vacate the judgment pursuant to CR 59.05. He argued that the Newtons had failed to establish their ownership of the disputed areas by adverse possession and there was no showing that he acted with malice or in bad faith to warrant the imposition of punitive damages. The trial court denied the motion by order entered on August 31, 2018.
Wise filed a notice of appeal from this order. Thereafter, the Newtons filed their survey plat reflecting the boundaries found in the trial court's judgment. On December 21, 2018, the trial court entered an order adopting the survey plat and directed the Newtons' surveyor to submit deed descriptions to the Master Commissioner. Wise filed a second notice of appeal from this order. Upon approval by the Master Commissioner, the trial court directed that the amended deed be filed with the Hardin County Clerk. With the completion of the matter before the circuit court, this Court directed that Wise's appeals be consolidated. Additional facts will be set forth below as necessary.
II. Preservation
As an initial matter, we note that Wise's brief does not comply with the requirement under CR 76.12(4)(c)(v) that each argument raised in an appellant's brief include "a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner." We require a statement of preservation:
so that we, the reviewing Court, can be confident the issue was properly presented to the trial court and therefore, is appropriate for our consideration. It also has a bearing on whether we employ the recognized standard of review, or in the case of an unpreserved error, whether palpable error review is being requested and may be granted.Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012).
Wise's brief does not include a preservation statement at the beginning of each argument. Furthermore, Wise's brief does not contain any citations to the record supporting his factual assertions, as required by CR 76.12(4)(c)(iv). However, dismissal based upon non-compliance with CR 76.12 is not automatic. Baker v. Campbell Cty. Bd. of Educ., 180 S.W.3d 479, 482 (Ky. App. 2005). "Our options when an appellate advocate fails to abide by the rules are: (1) to ignore the deficiency and proceed with the review; (2) to strike the brief or its offending portions, CR 76.12(8)(a); or (3) to review the issues raised in the brief for manifest injustice only[.]" Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010). We conclude that the appropriate remedy is to undertake a review for manifest injustice. Mullins v. Ashland Oil, Inc., 389 S.W.3d 149, 154 (Ky. App. 2012).
III. Standard of Review
As this matter was tried before the circuit court without a jury, our review of factual determinations is under the clearly erroneous rule. CR 52.01. A finding of fact is not clearly erroneous if it is supported by substantial evidence, which is "evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men." Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998). It is within the trial court's province as the fact-finder to determine the credibility of the witnesses and the weight given to the evidence. Frances v. Frances, 266 S.W.3d 754, 756 (Ky. 2008). This rule applies with equal force on an appeal from a judgment in an action involving a boundary dispute. Croley v. Alsip, 602 S.W.2d 418, 419 (Ky. 1980). We review the trial court's conclusions of law de novo. Gosney v. Glenn, 163 S.W.3d 894, 898 (Ky. App. 2005).
IV. Adverse possession
The Newtons claimed three separate areas as part of their adverse possession claim. On the west side of their property, they claimed ownership of a roughly triangular tract bounded by KY 220 on the south, by their record property line on the east, and extending beyond the driveway easement. They also claimed a smaller triangular tract extending past the northwest corner of their property along the unpaved lane near the barn on Wise's farm. And lastly, the Newtons claimed to adversely possess another triangular tract of property on the east side of their property, bounded by KY 220 on the south and by the platted line of Wise's remaining farm property on the east. The trial court found that the Newtons had established adverse possession of each of these areas and directed the recording of an amended plat reflecting these boundaries of the Newtons' property. However, that plat retains the access easement along the paved driveway for both Wise and the Newtons.
Wise argues that the Newtons failed to present sufficient evidence to show that they had adversely possessed these areas. To prove the elements of adverse possession, the Newtons were required to show that their possession of the entire ten-foot strip was hostile, under a claim of right, actual, exclusive, continuous, open, and notorious for a period of at least fifteen years. See Appalachian Regional Healthcare, Inc. v. Royal Crown Bottling Co., Inc., 824 S.W.2d 878, 879-80 (Ky. 1992). These elements must be demonstrated by clear and convincing evidence. Moore v. Stills, 307 S.W.3d 71, 78 (Ky. 2010).
In relevant part to this appeal, a party claiming title by adverse possession must show that the possession was so actual and so continuous as to furnish a cause of action every day during the entire period prescribed by the statute. Noland v. Wise, 259 S.W.2d 46, 48 (Ky. 1953). "Adverse possession of land may be said to be founded in trespass; it must be a trespass constantly continued by acts on the premises. It must challenge the right of all the world; the claimant must keep his flag flying, and present a hostile front to all adverse pretentions." Combs v. Ezell, 232 Ky. 602, 24 S.W.2d 301, 305 (1930). In the absence of a well-defined boundary or significant improvements to the land, the claimant's proof must show continuous activity, as sporadic activities are not sufficiently open, continuous, or notorious to ripen into adverse possession. Phillips v. Akers, 103 S.W.3d 705, 708 (Ky. App. 2002). See also Kentucky Women's Christian Temperance Union v. Thomas, 412 S.W.2d 869, 870 (Ky. 1967).
Wise contends that the Newtons' activities on the disputed areas were merely intermittent and therefore insufficient to establish actual possession for adverse-possession purposes. But unlike the sporadic activities discussed in Moore v. Stills, 307 S.W.3d at 79-80, the trial court found that the Newtons have exclusively possessed and maintained the disputed areas since they acquired their property in 2002. Wise fails to show that this factual finding was clearly erroneous. Thus, we find no basis to disturb the trial court's conclusion that the Newtons adversely possessed the disputed areas.
V. Conversion
Wise next argues that the trial court erred by finding that he wrongfully converted the stone which the Newtons removed from their home. He notes that the Newtons deposited the stone on the northwest corner of their tract, on land that he reasonably believed to be within the boundaries of his deed. Consequently, he maintains that the Newtons abandoned the stone and he cannot be liable for its conversion. In the alternative, Wise contends there was no evidence showing that he acted maliciously to warrant the imposition of punitive damages.
Wise primarily focuses on his intent in taking the stone. But for purposes of the conversion claim, the controlling question is whether the Newtons' actions demonstrated an intent to abandon the stone. "Abandonment consists of the actual act of relinquishment, accompanied with the intent and purpose to give up permanently the claim and right of property[.]" Rice v. Rice, 243 Ky. 837, 50 S.W.2d 26, 30 (1932). "Like any other fact, abandonment may be shown by circumstances or by the actions, conduct, or declarations of the parties." Com., Dep't of Highways v. Fultz, 360 S.W.2d 216, 221 (Ky. 1962) (citation and internal quotation marks omitted).
We agree with Wise that the Newtons' placement of the stone on or near the boundary of their property could evidence an intent to abandon it. However, the trial court considered other evidence, including the circumstances surrounding the Newtons' actions and Wise's taking of the stone. The court concluded that Wise had no reasonable basis to think the Newtons had abandoned the stone. In the absence of any citations to evidence of record which compels a different result, we will not disturb this conclusion.
Similarly, the trial court found that Wise acted maliciously in taking the stone. The court noted that he conspicuously removed the stone from the northwest corner of the Newtons' property and proceeded to use it to build a sign for his planned subdivision. Wise took these actions in the course of his ongoing efforts to harass the Newtons and block or limit the use of the driveway easement. As the trial court found, "[t]he whole 'in-your-face' sign plan shows Wise maliciously intended to be as difficult as possible." Wise fails to show that this finding was clearly erroneous. Therefore, we have no basis to disturb the award of punitive damages.
VI. Conclusion
Accordingly, we affirm the judgment and orders of the Hardin Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: James T. Kelley
Elizabethtown, Kentucky BRIEF FOR APPELLEES: Dwight Preston
Elizabethtown, Kentucky