Opinion
NO. 2013-CA-000814-MR NO. 2013-CA-001000-MR
02-05-2016
WILLIAM A. AMBROSE APPELLANT v. VERNON WARD AND JANICE WARD APPELLEES AND CAROL GABBARD; RONALD GABBARD; BERNARD THOMAS; WANDA THOMAS; EMILY THOMAS; JAMES HANSEN; MARCELLA JO HANSEN; SHARON WARD; LISA THOMAS; LOWELL MADDEN; MILLIE MADDEN; SHARON MAYS; KENNETH HANSEN; JENNIFER LYNCH; RONNIE LYNCH AND CHAD LYNCH APPELLANTS v. JANICE WARD AND VERNICE WARD APPELLEES
BRIEF FOR APPELLANT WILLIAM A. AMBROSE: John T. Aubrey Manchester, Kentucky BRIEFS FOR APPELLANTS CAROL GABBARD, RONALD GABBARD, BERNARD THOMAS, WANDA THOMAS, EMILY THOMAS, JAMES HANSEN, MARCELLA JO HANSEN, SHARON WARD, LISA THOMAS, LOWELL MADDEN, MILLIE MADDEN, SHARON MAYS, KENNETH HANSEN, JENNIFER LYNCH, RONNIE LYNCH, AND CHAD LYNCH Brian T. Reed Berea, Kentucky BRIEFS FOR APPELLEES VERNON WARD AND JANICE WARD: James A. Ridings London, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JACKSON CIRCUIT COURT
HONORABLE OSCAR G. HOUSE, JUDGE
ACTION NOS. 06-CI-00175 & 06-CI-00146 OPINION
AFFIRMING BEFORE: JONES, STUMBO, AND VANMETER, JUDGES. VANMETER, JUDGE: Carrol Gabbard and numerous others with relatives buried in the Ambrose Cemetery (hereinafter collectively "Gabbard appellants") and William Ambrose appeal the order of the Jackson Circuit Court creating numerous restrictions on their use of a passway across Vernon and Janice Ward's property in order to reach Ambrose Cemetery. For the following reasons, we affirm.
Appellants named in this appeal are: Carol Gabbard, Ronald Gabbard, Bernard Thomas, Wanda Thomas, Emily Thomas, James Hansen, Marcella Jo Hansen, Sharon Ward, Lisa Thomas, Lowell Madden, Millie Madden, Sharon Mays, Kenneth Hanson, Jennifer Lynch, Ronnie Lynch, and Chad Lynch. This also includes "anyone who properly identifies him or herself as having a close relative or very close friend buried in Ambrose Cemetery."
I. Procedural and Factual Background
This case arose when the Gabbard appellants filed an action seeking to enjoin the Wards from blocking access to the Ambrose Cemetery, which is a private cemetery located near the Wards' property. The cemetery is located next to the Wards' property, previously owned by Charlie Cook, Janice Ward's father. The cemetery is not on the Wards' property, but rather, the easiest way to access the cemetery is by Elias Herd Road (also called Big Barn Road), which crosses onto the Wards' property. Evidence was presented that Charlie Cook had allowed access to the cemetery across his land, and that local custom was to use this passway after visiting with Charlie Cook. Another passway, Spence Road, also affords access to the cemetery. However, it crosses Sturgeon Creek, which often floods, and requires negotiating a muddy and steep embankment.
The Gabbard appellants were granted a temporary injunction against the Wards, prohibiting blocking of access to the cemetery, which was modified to allow the erection of a gate across the roadway to the Wards' property so long as the Gabbard appellants were provided a key. Ambrose, who owns property adjacent to the Wards, then filed a separate action seeking access across the Wards' property for purposes beyond accessing the cemetery. These separate actions were consolidated before the trial court and tried together before a jury.
During the trial, the trial court granted the Gabbard appellants' motion for a directed verdict regarding their easement across the Wards' property for cemetery access, but the court reserved ruling on any restrictions to that access. At the trial's end, the jury found that no prescriptive easement existed for any party. The trial judge granted the Gabbard appellants, and all others with loved ones in the cemetery, conditional access to the cemetery. The trial judge memorialized the directed verdict and jury verdict in a final order. The court ordered that all parties agree among themselves on the exact placement of the easement and restrictions on its use, based on the recognized right of the parties to visit the graves of loved ones. Absent an agreement, the court was to hold a subsequent hearing.
After the parties were unable to agree on a set of rules and regulations, a hearing was set to determine the restrictions on access to the cemetery. The Wards tendered a set of proposed rules and regulations to the court, but neither the Gabbard appellants nor Ambrose tendered a set of proposed rules or regulations of their own, and the Gabbard appellants' attorney was not present at the hearing. The record does not reflect that the appellants objected to the Wards' set of rules and regulations, nor did they file a motion with the court opposing the adoption of the Wards' proposed rules. The court entered the "Order Reconsidering and Altering and Amending This Court's Order" on May 7, 2013 (hereinafter "May 7 Order"), and included the Wards' proposed restrictions on the Gabbard appellants' and Ambrose's use of the easement. This appeal followed.
The Gabbard appellants argue the restrictions in the May 7 Order unreasonably restrict and infringe upon their use and enjoyment of the easement in two ways. First, they argue they are entitled to free access to the cemetery with no restrictions on the easement. Second, they argue the current restrictions on the use of the easement are so onerous and unduly burdensome as to unreasonably interfere with their use and enjoyment of the easement.
Ambrose makes three arguments on appeal. First, he argues that the evidence established that a prescriptive easement existed. Second, he argues that the court erred in not instructing the jury as to the passway being a public road. Third, he claims he should not have been precluded from access to the cemetery.
II. Motion to Dismiss for Failure to Include Indispensable Parties
The Wards filed a Motion to Dismiss the appeal of the Gabbard appellants, arguing that numerous plaintiffs who participated at the trial level, and were never dismissed, were not named in the appeal. The Wards assert that the appeal must be dismissed since "all parties named as parties at the trial court level are necessary parties to an appeal," and those unnamed parties have a right to be named on the appeal.
Those parties who were plaintiffs at the trial level but not named as appellants include: Wanda Thomas, David Ward, Jean Ward, James A. Ward, Russell Bingham, Sam Creech, Georgia Creech, Jamie Ward, Ricky Ward, Shawna Ward, Lowell Madden, Jr., Paul Trent, Lori Trent, Rachel Trent, Sharon Isaacs, Glen Isaacs, Thomas Mays, Ali Anasarcien, Angelia Anasarcien, Wayland Thomas, Kimberly Thomas, Henry Bart Ambrose, Michael Chad Lynch, Irene Redfoot, Darvin P. Ambrose, Jennifer Lynch Bingham, Jesse Hansen, Teresa Hansen, Margaret Thompson, Peter Lingaard, Margaret Lingaard, Renee Tillery, Steve Robinson, and Susie Robinson.
CR 19.01 requires that:
Kentucky Rules of Civil Procedure.
A person who is subject to service of process, either personal or constructive, shall be joined as a party in the action if (a) in his absence complete relief cannot be accorded among those already parties, or (b) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.(emphasis added). In order to determine which parties must be joined under CR 19.01, it must be considered whether that party is indispensable. An "indispensable party" is defined as "[p]arties who not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience[.]" Levin v. Ferrer, 535 S.W.2d 79, 81 (Ky. 1975) (quoting Shields v. Barrow, 17 How. 116, 58 U.S. 116, 129, 15 L. Ed. 65 (1854)). "Failure to specify any party whose absence prevents the appellate court from granting complete relief among those already parties would be fatal to the appeal." Braden v. Republic-Vanguard Life Ins. Co., 657 S.W.2d 241, 243 (Ky. 1983) (citing Levin, 535 S.W.2d 79). However, in distinguishing between indispensable parties required at the trial level and those on appeal, "[t]he critical difference is who is necessary to pursue the claim and who has a right to the [relief]." Braden, 657 S.W.2d at 243.
We note that, although CR 19.01 was amended to omit the exact language "indispensable party," this analysis is still applicable to determine necessary parties for joinder. See Liquor Outlet, LLC v. Alcoholic Beverage Control Bd., 141 S.W.3d 378 (Ky. App. 2004) (applying CR 19.01 and using the term "indispensable party").
If the only relief sought by the appellants is a reversal on the merits with remand, assuming the appellant prevails on the merits, the judgment may still order the unnamed parties, who are still parties at the trial level, to be bound by its decision on remand; those unnamed parties still have standing to pursue the claim. Braden, 657 S.W.2d at 243. Furthermore, the rules of joinder have not been interpreted "as requiring joinder as an indispensable party to an appeal of a party who is unnecessary to the decision of the appeal and who would incur an unnecessary expense if its presence was required." Id. at 244.
In the instant appeal, the issue is not whether an easement exists, but rather whether the May 7 Order's restrictions on the use of the cemetery access easement were unreasonably burdensome to those seeking to access the Ambrose Cemetery. The Gabbard appellants seek to have this May 7 Order vacated and remanded back to the trial court for reconsideration of the limitations placed on that easement. Those parties who were plaintiffs at the trial level, but who are not named in the appeal, will remain parties on remand and thus will be able to raise any concern about cemetery access. The trial court's new order would apply equally to all parties, both those named on appeal and those who were present only at the trial level. So, no risk of an inconsistent or duplicative ruling exists, and the unnamed parties will not have their present rights of access infringed upon on remand; in fact, they may very well gain additional rights of access. Additionally, if the appellants do not prevail in the instant appeal, the rights of the unnamed parties will remain unchanged. Therefore, we disagree that this appeal should be dismissed for failure to join parties and will address the merits of the appeal.
III. The Gabbard Appellants' Cemetery Access Easement
First, the Gabbard appellants argue that they are entitled to free access to the cemetery by way of the easement, and should not have any restrictions on their use. The Wards argue that because the appellants did not object to these proposed rules and regulations at the hearing, nor did they tender an alternative set, this issue has not been preserved on appeal. An issue not presented to the trial court cannot be raised on appeal for the first time, and may only be reviewed for palpable error, which requires a finding of manifest injustice to prevail. Fischer v. Fischer, 348 S.W.3d 582, 589 (Ky. 2011) (citing CR 61.02).
CR 61.02 states:
A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.In other words, palpable error relief is not available unless three conditions are present: the error must have (1) been clear or plain under existing law, (2) have been more likely than ordinary error to have affected the judgment, and (3) so seriously affected the fairness, integrity, or public reputation of the proceeding to have been jurisdictionally intolerable. Commonwealth v. Jones, 283 S.W.3d 665 (Ky. 2009). We review the issues raised by the Gabbard appellants under palpable review since they did not object to the court's restrictions on cemetery access.
We recognize that Jones discusses RCr (Kentucky Rules of Criminal Procedure) 10.26, the criminal rule regarding palpable error. However, since the criminal and civil rules regarding palpable error employ identical language, we find no reason or precedent for the analysis under the civil rule to be any different from that of the criminal rule.
The Supreme Court of Kentucky recognizes "the unquestioned right of [individuals] to visit the grave of a relative." Commonwealth, Dep't of Fish & Wildlife Res. v. Garner, 896 S.W.2d 10, 12 (Ky. 1995). "Under Kentucky law, the right of a relative to visit the graves of deceased relatives has been classified as an easement." Id. at 13. However, the rights of those visiting the cemetery must be balanced against those of the subservient landowner; "[t]he right of ingress and egress to a cemetery is to be used for a proper occasion and proper purposes. The right of ingress and egress and its dimension is not unqualified." Id. (internal citations omitted). Hence, the Gabbard appellants are not entitled to unqualified, unrestricted access to the cemetery. The trial court did not err merely by placing restrictions on the use of the easement to access Ambrose Cemetery; restrictions relating to its reasonable use are appropriate.
Second, the Gabbard appellants argue that the court's restrictions on the use of the easement are unduly burdensome to the point of unreasonably interfering with the appellants' use and enjoyment of the easement, which results in a manifest injustice. The Wards counter that they must be able to place locked gates and fences throughout their property in order to separate their horses and cows from the hay fields and from each other.
The May 7 Order set forth nineteen "Cemetery Access Rules and Regulations" pertaining to access across the Wards' property. The Wards, as the servient landowners, certainly have the right to erect gates and fences on their own land, and to establish the exact location of the easement to access the cemetery. They also may determine and change the location of the free passway without the consent of the Gabbard appellants so long as they do "not change the beginning and ending thereof, and it does not result in a material inconvenience to the rights of those entitled to use the free pass way." Stewart v. Compton, 549 S.W.2d 832, 833 (Ky. App. 1977).
The Gabbard appellants did not participate in the establishment of the terms and conditions proposed by the trial court, despite being on notice of the trial court's prior directive. Case law has recognized the servient estate holder's right to protect its interest by erecting gates, fences, and locking those gates on occasion, so long as the dominant estate holder's rights of ingress and egress are protected. We are unable to say that the trial court, which heard all the evidence in this case, erred in establishing the rules and conditions on cemetery access. We certainly do not believe those conditions constitute clear or plain error under existing case law. When balancing the interests of the Wards against the Gabbard appellants, the Wards' interest in keeping their livestock safe and away from the fields with the use of locked gates on their own property does not violate the right of the Gabbard appellants to access the graves of loved ones. We agree with the Wards that no manifest injustice has occurred regarding the rules and restrictions placed on the cemetery access.
See Stewart v. Compton, 549 S.W.2d 832 (Ky. App. 1977); Garner, 896 S.W.2d 10. --------
IV. Ambrose and Easement Access
First, Ambrose contends that evidence established the presence of a prescriptive easement, contrary to the jury verdict.
When reviewing a jury verdict, the appellate court is restricted to determining whether the trial judge erred in failing to grant a motion for directed verdict. The reviewing court must consider all evidence favoring the prevailing party as true and is not at liberty to determine the credibility or weight which should be given to the evidence. The reviewing court must draw all reasonable inferences in favor of the claimant, refrain from questioning the credibility of the claimant, and from assessing the weight which should be given to any particular item of evidence. The reviewing court may reverse the verdict of the jury only when it is so flagrantly against the weight of the evidence as to indicate passion or prejudice.Denzik v. Denzik, 197 S.W.3d 108, 110 (Ky. 2006) (internal citations omitted). In this case, the jury heard evidence from all parties regarding whether the use of this passway met the required elements for a prescriptive easement. "As with adverse possession of a fee simple estate, a prescriptive easement can be acquired by actual, hostile, open and notorious, exclusive, and continuous possession of the property for the statutory period of fifteen years." Columbia Gas Transmission Corp. v. Consol of Ky., Inc., 15 S.W.3d 727, 730 (Ky. 2000). The jury decided by a majority of eleven that a prescriptive easement had not been established. From our review of the evidence, Ambrose did not meet all of these elements, notably the requirement of hostility as Charlie Cook permitted cemetery-goers to use the passway. Since the jury's verdict was not against the weight of the evidence, especially not to the standard required to overturn such a jury verdict, this verdict is not in error.
Second, Ambrose argues that the trial court erred in not instructing the jury as to the existence of a public road when considering his easement. In his complaint, Ambrose claims that the passway is a county road, and also that he and his predecessors have used this roadway "for more than fifteen (15) years and have been in actual, peaceable, exclusive, open, notorious, visible, hostile, continuous, and uninterrupted adverse possession of the roadway." However, Ambrose did not demand that the jury make a finding as to a county road or a public road. As reflected by the record, at the conclusion of the trial, Ambrose conceded that he had offered no proof that a county road existed.
Ambrose then tendered the following jury instructions, in relevant part, which instructed whether the passway in question was a public road: "Any road, street, highway, or parcel of ground dedicated and laid off as public way and used without restrictions on a continuous basis by the general public for fifteen (15) consecutive years, shall exclusively be presumed to be a 'public road.'" The trial judge ruled against giving this instruction, and Ambrose objected to the failure to give the instruction.
For review of jury instructions,
Because alleged errors regarding jury instructions are considered questions of law, we examine them under a [de novo] standard of review. Additionally, "[i]nstructions must be based upon the evidence and they must properly and intelligibly state the law." The instructions are reviewed "as a whole to determine whether they adequately inform the jury of relevant considerations and provide a basis in law for the jury to reach its decision."Mendez v. Univ. of Ky. Bd. of Trustees, 357 S.W.3d 534, 538-39 (Ky. App. 2011) (internal citations omitted).
"As opposed to 'county roads,' 'public roads' do not require any kind of formal establishment. And, . . . a roadway or passway may become a 'public road' giving the public a right to an easement by prescription through adverse use in excess of the statutory 15-year period." Cary v. Pulaski Cnty. Fiscal Court, 420 S.W.3d 500, 508 (Ky. App. 2013). "Long continued uninterrupted adverse use of a passway by the public will create an implied acceptance of a dedication of the passway as a public road. The adverse use must be of the same character, continuity, and duration as is necessary for creation of a private easement, which in turn requires open, hostile, actual, notorious, and continuous use." Id. at 509 (internal citations omitted).
The trial judge declined to give the jury instructions for a public road; however, he did instruct the jury as to a prescriptive easement, which the jury found not to exist. Since the standard to determine the existence of a "public road" is a higher one than for a prescriptive easement, a "public road" instruction was unnecessary, and the court did not err in not giving this instruction.
Lastly, Ambrose argues he should not have been precluded from access to the cemetery. The May 7 Order allows access to the cemetery via the easement across the Wards' land to "anyone who properly identifies himself or herself as having a close relative or very close friend buried in Ambrose Cemetery," in addition to the named parties of the Gabbard appellants. Therefore, since Ambrose has "40 - 50 relatives buried in that cemetery," he is clearly part of this group, and has been granted access to the cemetery. The trial court did not err.
The judgment of the Jackson Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT
WILLIAM A. AMBROSE: John T. Aubrey
Manchester, Kentucky BRIEFS FOR APPELLANTS
CAROL GABBARD, RONALD
GABBARD, BERNARD THOMAS,
WANDA THOMAS, EMILY THOMAS,
JAMES HANSEN,
MARCELLA JO HANSEN, SHARON
WARD, LISA THOMAS,
LOWELL MADDEN, MILLIE MADDEN,
SHARON MAYS, KENNETH HANSEN,
JENNIFER LYNCH, RONNIE LYNCH,
AND CHAD LYNCH Brian T. Reed
Berea, Kentucky BRIEFS FOR APPELLEES
VERNON WARD AND JANICE
WARD: James A. Ridings
London, Kentucky