Opinion
NO. 2014-CA-000938-MR
01-15-2016
DARIL W. DIXON AND TERESA DIXON APPELLANTS v. ROGER MURRAY AND SCARLETT MURRAY; AND ROCKHOUSE DEVELOPMENT COMPANY APPELLEES
BRIEF FOR APPELLANT: George K. Wells Paintsville, Kentucky BRIEF FOR APPELLEES: Dale Phillips Oil Springs, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JOHNSON CIRCUIT COURT
HONORABLE JOHN DAVID PRESTON, JUDGE
ACTION NO. 13-CI-00440 OPINION
AFFIRMING BEFORE: JONES, J. LAMBERT, AND MAZE, JUDGES. LAMBERT, J., JUDGE: Daril and Teresa Dixon appeal from the judgment of the Johnson Circuit Court determining that the Appellees, Roger Murray, Scarlett Murray, and Rockhouse Development Company, are entitled to the unrestricted use of a roadway at issue between the parties. After careful review, we affirm the judgment of the trial court.
The Appellees, the Murrays, were the Plaintiffs below. The Appellants, the Dixons, were the Defendants below. The Murrays' predecessors in title, Robert Horne and others, owned a tract of land through which a road ran. Mr. Horne acquired the interests of his cotenants by deed dated September 24, 1975, recorded in Deed Book 178, page 419, and by deed dated November 25, 1977, recorded in Deed Book 189, page 282.
Prior to this, in 1975, by deed recorded in Deed Book 178, page 540, Mr. Horne and his cotenants conveyed a piece of this tract located on the east side of the road to the Dixons' predecessor in title, James Castle, reciting in said deed that the road was excepted. In 1976, by deed recorded in Deed Book 182, page 876, Robert Horne and his cotenants sold a piece of this tract located on the west side of the road to William Castle, James Castle's brother.
Prior to 1978, the Dixons' predecessor in title, James Castle, relocated the road to the location where it now exists. In 1978, by deed recorded in Deed Book 190, page 3, Robert Horne conveyed the excepted road, as relocated, to the Johnson County Fiscal Court, and in 1979, the then unsold part of the parent tract located on the west side of the road was subdivided. This surveyed subdivision and road were depicted on a plat recorded on April 24, 1979, in File A, Map 74, Slide 79 in the Johnson County Clerk's office.
The Murrays succeeded to the ownership of the then unsold portion of the Robert Horne tract by Deed dated February 14, 1980, recorded in Deed Book 198, page 669. The Dixons succeeded to the ownership of the James Castle tract by deed dated September 15, 1986, recorded in Deed Book 254, page 334.
The subdivision plat depicts the road in the same location established by the Dixons' predecessor in 1977, many years prior to the parties' acquisition of their respective tracts. The road is in the same location that it was when the Dixons acquired their property in 1986, and it is in the same location today.
The Dixons contend that the road location in 1975 (prior to its relocation by their own predecessor) differed from the subdivision plat location and should control the parties' rights.
This matter came to a head when Roger Murray placed the property in question on the market in June 2013. Murray testified that he had access to the property in question since 1978, and that after the mining that had occurred on the property stopped, equipment was placed on the property for the purpose of reclamation. Murray stated that in 1980, his timber was sold, and it was hauled out by the same road. He stated that there was only one road in and out of the hollow. Murray further stated that he hauled in a backhoe on a lowboy to do some work on the property, and that in 1982, a dozer went onto the property to do some prospecting. He stated that the Kentucky West Virginia Gas Company had a well site on the property which that company maintained, using the road in question until the 1990s. He stated that he had gone onto the property over the road in question since purchasing the property. He had gone onto the property a couple of times a year since his partners died, and he had hunted squirrels on the property.
According to Murray, the first issue arose on May 30, 2013, when the Dixons told him there was no road in existence. He was puzzled by this, as there was no other access to the property in question. He testified that in 1978, he noticed a fresh layer of gravel on the road, past the end of the blacktop road. He introduced into evidence as Exhibit 10 a deed to the Johnson County Fiscal Court from Robert Horne and Norma Horne, dated March 6, 1978, and recorded in Deed Book 190, page 3. He testified that he hired Dewey Bocook to lay out and locate the road in question. Murray stated that in August 2013, he tried to place some concrete columns around the markers placed by Mr. Bocook. He testified that the Dixons told him the road was in the wrong place. On one occasion, he had scheduled a dozer to be delivered to the property to do some cleanup work. Murray stated that he was told by Teresa Dixon that he would be trespassing if he came onto the property. The Sheriff's Office was called. He testified that the Dixons blocked the road with a Hummer. Murray stated that he took the dozer back and paid the driver $132.00 for his delivery work. At that point, Murray filed the instant law suit, and ultimately a bench trial was held.
To summarize, some 28 years after acquiring their property, the Dixons wish to move the now existing county road to a location where no road has existed since 1977, which currently encompasses a significant portion of their neighbor's yard, to a location which would adversely impact three structures located on lots within the Robert Horne Subdivision.
The Murrays contend that the road location existing when they acquired their tract in 1980 and when the Dixons acquired their tract in 1986 (i.e., as it was physically established by the Dixons' predecessor in 1977, as it was conveyed to the county in 1978, as it was depicted on the subdivision plat in 1979, and where it remains physically located today) controls.
Following the bench trial, the trial court entered Findings of Fact, Conclusions of Law, and Judgment on May 12, 2014, in favor of the Murrays and adjudged them to be entitled to the full and unrestricted use of the roadway. The court awarded them the $132.00 Murray paid for the bull dozer delivery and ordered the parties to pay their own costs in the litigation. This appeal by the Dixons now follows.
On appeal, the Dixons make two arguments: first, they argue that the trial judge should have recused in the instant action, and second, they argue that the decision is contrary to the preponderance of the evidence. The Murrays counter that the trial court's judgment is adequately supported by the evidence, and that the trial judge was not required to recuse.
Initially, we will address the Dixons' argument that the trial judge should have recused. Kentucky Revised Statutes (KRS) 26A.015(2) requires recusal when a judge has "personal bias or prejudice concerning a party . . ." or "has knowledge of any other circumstances in which his impartiality might reasonably be questioned." KRS 26A.015(2)(a) and (e); see Supreme Court Rules (SCR) 4.300, Canon 3C(1). "The burden of proof required for recusal of a trial judge is an onerous one." Stopher v. Commonwealth, 57 S.W.3d 787, 794 (Ky. 2001). "There must be a showing of facts 'of a character calculated seriously to impair the judge's impartiality and sway his judgment.'" Id., citing Foster v. Commonwealth, 348 S.W.2d 759, 760 (Ky. 1961), cert. denied, 368 U.S. 993, 82 S.Ct. 613, 7 L.Ed.2d 530 (1962); Johnson v. Ducobu, 258 S.W.2d 509 (Ky. 1953).
The Dixons argue that they did not get a fair trial because the circuit court judge, the Hon. John David Preston, while practicing law in private practice, prepared deeds involved with this property, which they claim were adverse to their interests. They argue that Judge Preston had contact concerning the property outside the litigation and that he should have been a witness in the litigation. The Dixons argue that on one of the deeds prepared there was a notation referencing Judge Preston, which they claim stated "ATTN John David here is the map. Notice the exceptional purchase price. $20,000.00." The Dixons contend that Roger Murray is the person who handwrote this note to Judge Preston during the time period in which he prepared the deed. Finally, they contend that Judge Preston should have been a witness in the instant matter, because only he could answer the questions which would account for how the deeds were prepared and what contact he had with other individuals.
The Murrays counter that no bias occurred in the instant case and that Judge Preston was not required to recuse. In support of this, they argue that the Dixons' arguments amount to a red herring; specifically, the arguments that the preparation of two deeds in 2003 pertaining to two lots in the Horne Subdivision, rendered Judge Preston incapable of being fair and impartial. They point out that Judge Preston did not represent any party in the instant action, and emphasize that the deeds did not alter the location of the roadway now in question.
The record reflects that in the order denying the motion to recuse, Judge Preston notes that the Dixons had misquoted the language in the note on the deed. The actual language located on the plat map stated, "ATTN: John David Here is the map notice the exceptions. Purchase Price $20,000." The note states "exceptions," not "exceptional." Judge Preston went on to note that the Murrays had filed a response to the motion to recuse, which stated that at the time he was in private practice, Judge Preston represented Zondra Baker in the preparation of the deed, and that Mary Phillips represented Roger Murray in the transaction. The Murrays attached an affidavit of Mary Phillips, who stated that she performed a title examination at the request of Roger Murray concerning the property in question, that she reviewed deeds prepared by the undersigned, requested revisions, which were made, and that the deeds were subsequently executed. Furthermore, Roger Murray attached an affidavit stating that he did not in fact put the writing on the map that was attached to the deed.
A review of the record and the parties' arguments below indicates that Judge Preston prepared deeds that had little or no bearing on the location of the roadway in the instant case. Furthermore, he did not represent the Murrays when he prepared the deeds in 2003. Thus, we perceive of no bias regarding the Murrays or the instant action that would render him incapable of being fair and impartial. Furthermore, the Dixons have not articulated with specificity how Judge Preston's preparation of the deeds affects the instant litigation.
Regarding the Dixons' second argument on appeal, we also affirm the judgment of the trial court. A trial judgment entered pursuant to a bench trial will not be disturbed unless it is clearly erroneous. Kentucky Rules of Civil Procedure (CR) 52.01. See also Croley v. Alsip, 602 S.W.2d 418, 419 (Ky. 1980).
The trial court's order states with specificity that the weight of the evidence supports the Murrays' contention with respect to the location of the road. Specifically, the trial court stated:
18. Having reviewed the evidence, the Court finds that the better weight of the evidence supports the contention of the Plaintiffs to the location of the road. Considering first the arguments for the Defendants, there are a number of weaknesses in the arguments. Defendants' lay witnesses testified that the old road ran over the hill by the Baker property. There may have been an old wagon trail there, but it was such an insignificant road that it did not appear on the USGS topo[graphic] maps of 1962, 1971, or 1978. In fact, the old jeep trail that showed on the topo[graphic] maps of 1971 and 1978 ran around the back of the hollow, behind the residence of the Defendants, rather than running over the hill as claimed by the witnesses. The Court further notes that if credence were given to the Defendants' witnesses' testimony as to the location of the road, that the road would go around the hollow on a relatively level plane, as shown on the topographic maps, rather than going down and back up the hollow. The Court further finds that the road and boundary line claimed by the Defendants would take a significant portion of the yard that Zondra Baker no doubt believes that she owns. Further, accepting the Defendants' location of the road causes the county road to be moved from its current location, to a place where it clearly does not exist, and causes three structures located
on lots within the Robert Horne Subdivision to be partially placed off the boundaries of their respective lots. Further, the call in the Defendants' deed for the poplar tree is not the same poplar tree that as called for in the deed to William Castle, now the Zondra Baker property. The descriptions in those two deeds clearly call for poplar trees on opposite sides of the road from each other. Finally, the position taken by the Defendants is contrary to other deeds of conveyance in the chain of title, specifically, the deed of August 16, 1996, from Robert Horne and Norma Horne to George and Zondra Baker, which conveyed to them the remaining portion of Lot 11, as well as the deed of October 31, 2003, from Zondra Baker to Harry Colvin and Roger Murray, in which she transferred an easement over a portion of the property which lies beside the road that is the subject to this litigation, and shown on Plaintiffs' Exhibit 15. Those two deeds are clearly inconsistent with the Defendants' claim of ownership of that property. Further, Defendants' predecessor in title, James Castle, Jr., stated that he became aware of the Henry Mortimer plat of the Robert Horne Subdivision within a month or so after it was filed in 1979. At that point, Defendants' predecessor in title was clearly placed on notice, and had actual knowledge, of the location of the lots in the subdivision and the subdivision road. From that point until November 8, 1985, when he sold the property to Lloyd Howard, Mr. Castle apparently raised no objection to the location of the lines or of the road.
19. Contrasting that evidence is the evidence for the Plaintiffs, which follow precisely the lines as shown in the Robert Horne Subdivision. Under the Plaintiffs' theory of the case, the evidence is consistent with the Robert Horne Subdivision lines, is consistent with the location of the two poplar trees in the deeds to William Castle and James Castle, is consistent with Zondra Baker owning her yard, is consistent with the location of the houses within the Horne Subdivision, is consistent with the location of the county road, and is consistent with the conveyance of the easement to the Plaintiffs by Zondra Baker. The Court therefore finds that the road in question is as stated on Plaintiffs' Exhibit 15, the map of
Bocook Engineering, Inc. The eastern edges of the roadway are as shown on Points 1, 2, 3, 4, and 5 of that map and continue to the eight inch steel pipe as shown on the map, which is apparently the end of the Defendants' property.As reflected in its detailed order, the trial court found the logical evidence supported the Murrays' claimed location of the roadway. We find the trial court's reasoning regarding the existence of the roadway was amply supported by the evidence of record and was therefore not clearly erroneous.
20. The Court finds in this case that the location of the road in question was changed, either from the location over the hill, as testified to by Defendants' witnesses, or the location winding around the hollow behind the Defendants' house, as shown by the topo maps, to the present location, as shown on Plaintiffs' Exhibit 15. The Court finds that the change of roadway occurred by consent of the parties involved, James Castle, William Castle, and Robert Horne, and was confirmed by the location of the road shown on the 1979 map of the Horne Subdivision.
Accordingly, we affirm the December 16, 2013, order of the Johnson Circuit Court denying the Dixons' motion for the trial judge to recuse. Further, we affirm the May 12, 2014, findings of fact, conclusions of law, and judgment of the court.
ALL CONCUR. BRIEF FOR APPELLANT: George K. Wells
Paintsville, Kentucky BRIEF FOR APPELLEES: Dale Phillips
Oil Springs, Kentucky