Opinion
NO. 2013-CA-000316-MR
03-28-2014
PAUL FLEMING AND NANCY FLEMING APPELLANTS v. GARY JESSEY AND ESTHER JESSEY APPELLEES
BRIEF FOR APPELLANT: James W. Craft, II Whitesburg, Kentucky BRIEF FOR APPELLEE: Gary D. Jessey, pro se Jenkins, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM LETCHER CIRCUIT COURT
HONORABLE SAMUEL T. WRIGHT, III, JUDGE
ACTION NO. 02-CI-00352
OPINION
AFFIRMING
BEFORE: DIXON, NICKELL, AND TAYLOR, JUDGES. NICKELL, JUDGE: This appeal chronicles an ongoing boundary dispute about a two-foot wide section of land in Letcher County—more particularly, a fence erected by Paul and Nancy Fleming across that two-foot strip in 2010 while an appeal of a judgment entered in 2009 was pending in this Court. The 2009 judgment established the common boundary line between these homeowners in favor of Gary and Esther Jessey based on a 1985 survey prepared as part of a mortgage inspection performed by Douglas J. Blakely. In the first appeal, a panel of this Court affirmed the trial court's denial of a motion to alter, amend or vacate the 2009 judgment, holding Blakely was qualified to perform the mortgage inspection and the survey he produced was substantial evidence of the common boundary. In the current appeal, the Flemings allege the trial court erroneously ordered them to remove the fence in an order entered February 6, 2013. They maintain the fence sits on their property, and because the 2009 judgment said nothing about an encroaching fence or the need to remove a fence, the trial court lacked authority to order removal of the fence in 2013. Having reviewed the briefs, the record and the law, we affirm.
Blakely testified by deposition that he is a licensed professional land surveyor. In 1985, when Gary and Esther Jessey applied for a home loan, the bank requested a "mortgage inspection." Because the bank did not specify criteria for the inspection, Blakely treated it as a regular survey and developed a drawing showing a common boundary line between the Jessey and Fleming lots.
To create the drawing, Blakely looked for monuments that predated Consolidation Coal Company's subdivision of the land; located and used two original pins to establish boundaries for the subdivision; measured distances; established the meridian of the survey; and finally, located fences, outbuildings, and the frame house on which the Jesseys were seeking a loan. The drawing depicted a chain link fence and the property line between the Jessey and Fleming lots. The Jesseys' garage was shown well within the Jesseys' property line. Blakely did not speak with adjoining landowners when conducting the survey, but he did review their deeds at the office of the Bethlehem Mines Corporation. Blakely did not monument the corners.
Blakely testified he believed the survey was accurate, especially since he had located and used two original pins, but acknowledged it did not meet minimum standards for a plat. He testified the drawing was "for mortgage inspection purposes only" and was not "intended to establish chain of title." Blakely did not place a stamp on the drawing which would have been required for it to be recorded as a plat map.
Fleming v. Jessey, No. 2009-CA-002187, 2010 WL 5066320 (unpublished, December 10, 2010, DR denied August 17, 2011).
Kentucky Rules of Civil Procedure (CR) 76.12(4)(c)(vii) requires the appellant's brief to include an appendix containing "the opinion or opinions of the court from which the appeal is taken[.]" The order to remove fence from which this appeal emanates—according to the notice of appeal—was not appended to the brief. Additionally, the argument portion of the brief does not include a statement of preservation as required by CR 76.12(4)(c)(v). Pursuant to CR 73.02(2), we are authorized to dismiss an appeal, strike a brief, or impose a fine for noncompliance with the rules.
FACTS AND PROCEDURAL HISTORY
Litigation over this two-foot strip of land began in September 2002 when the Jesseys filed a complaint alleging the Flemings were wrongfully claiming part of their land; had trespassed; had physically encroached; and, had destroyed a partial fence. Alleging both slander and a cloud on their title, the Jesseys sought to quiet title. In their claim for relief, the Jesseys requested compensatory and punitive damages; an injunction preventing the Flemings "from erecting or affixing any structure upon the land of [the Jesseys];" quieting of the Flemings' claim and release of it to the Jesseys; and reasonable attorney's fees and costs.
In answering the complaint, the Flemings denied any wrongdoing and filed a counterclaim alleging the Jesseys had encroached on their land by building structures that caused water and physical damage to the Flemings' property. They further alleged a cloud had been placed on their title by the Jesseys' words and actions, and prayed for judgment proclaiming them to own the disputed land, as well as compensatory damages, and reasonable costs and attorney's fees.
In an answer to interrogatories filed four months later, Paul claimed water draining from a structure had buckled a retaining wall, and the Jesseys had agreed to install gutters to rectify the problem. Paul admitted removing twenty-four feet of board fence, but claimed he did so because the fence was built on his land without permission. He further stated he and his family had gone away for a weekend and upon their return, their fence had been removed and a new fence had been installed.
While not specified, we believe the Flemings are referencing the Jesseys' garage. The Flemings mention a "shed," but no shed appears on the mortgage inspection prepared by Blakely, nor the location survey prepared in 2009 by Gregory A. Tackett of Aarco Surveying, another licensed professional land surveyor.
For seven years, the central question in this dispute was location of the common boundary line. We provide a short history of the activity that resulted in the 2009 judgment for the Jesseys.
In 2004, to avoid the trial both sides had demanded, the parties agreed to authorize Richard Hall, the Letcher County surveyor, to establish the line at their joint expense. Despite entry of an agreed order to that effect, the Flemings thereafter refused to allow Hall to survey their lot. Ultimately, the trial court released Hall from the case without his having prepared a survey; and in April 2008, the Jesseys urged the trial court to set the boundary line as drawn by Blakely in 1985.
The trial court gave the Flemings numerous opportunities to hire an independent surveyor, with the parties splitting the cost of the new survey. As early as May 2, 2008, and as late as December 22, 2008, the trial court stated in various orders that if the Flemings failed to make timely arrangements for a survey, the court would accept the boundary line drawn by Blakely.
On an unspecified date, a location survey prepared by Tackett, with a plat date of January 12, 2009, was provided to the Jesseys. Identifying information on the survey listed the client as "Paul & Nancy Fleming" and stated the boundary shown was "AS CLAIMED BY PAUL & NANCY FLEMING[.]" The Jesseys moved to strike the Tackett survey for several reasons—it did not conform to the trial court's orders; the Jesseys had not been allowed to participate in its development; and, when Gary approached the Aarco surveying team to provide information, he "was rebuffed as the surveyors where (sic) under the impression that they were conducting the survey for the Flemings, their clients— only." The Jesseys again asked the trial court to enter judgment based on Blakely's survey.
The Tackett survey was not filed with the trial court until March 26, 2009.
On February 12, 2009, the Letcher Circuit Court set the line as drawn by Blakely. The Flemings swiftly moved to alter, amend or vacate the judgment, but the motion was denied. The Flemings then appealed to this Court, raising two issues not mentioned in the CR 59.05 motion. A panel of this Court affirmed the trial court on December 10, 2010, leaving the common boundary line as drawn by the Blakely survey.
This brings us to the current round of litigation. On June 17, 2010, while the first appeal was pending in this Court, the Jesseys filed a motion to cease and desist, alleging,
[t]he Defendant Paul Fleming is currently, since on or about June 10, 2010, taking action to set fence posts and a fence upon [Jessey] property.On September 8, 2011, the Jesseys gave the Flemings notice of their intent to enforce the 2009 judgment. On October 21, 2011, the Jesseys moved the trial court to require the Flemings to show cause for their failure to abide by the judgment, alleging the Flemings "have wholly refused and failed to take action to remove the offending obstruction from [the Jesseys'] property, thereby violating the terms of judgment."
After a show cause hearing, the parties reached an "informal agreement" about the fence and posts. On March 12, 2012, the trial court entered an agreed order giving the Flemings thirty days to remove the encroaching fence and posts from the Jessey property. The agreed order went on to state,
Defendants' failure to do so may result in the imposition of sanctions under the contempt powers of this Court, including fine and/or incarceration for up to six months.A month later, the Jesseys moved the trial court to hold the Flemings in contempt for failing to comply with the agreed order entered the previous month. The Jesseys asked for imposition of sanctions, a reasonable attorney's fee and funds to hire someone to remove the fence and posts.
A show cause hearing was set and rescheduled. Then, on May 22, 2012, the Flemings moved for a continuance claiming unavailability due to a prepaid vacation. That motion was granted, but a question arose as to whether the alleged vacation was merely a ruse. The matter was ultimately scheduled for a hearing on October 25, 2012.
After the hearing, the trial court entered an order on December 20, 2012, giving the Flemings thirty additional days to remove the encroaching fence and posts from the Jesseys' land, and allowing the Flemings to relocate the fence on their own property. The order again stated noncompliance could result in sanctions. Furthermore, if the Flemings did not comply within thirty days, the Jesseys could hire someone to remove the fence and posts and charge the cost to the Flemings. The Flemings were never held in contempt.
On December 28, 2012, the Flemings moved to alter, amend or vacate the order arguing the fence was not on the Jesseys' property, so there was nothing to relocate. Alternatively, the Flemings sought more time to comply with the trial court's order due to the holidays and the Flemings being out of town until mid-January. On February 6, 2013, the trial court entered an order to remove fence—the focus of this appeal—giving the Flemings until February 15, 2013, to do so. On February 13, 2013—two days before time was to run—the Flemings instituted the current appeal.
ANALYSIS
In a two-paragraph argument that borders on the frivolous, the Flemings contend the trial court erroneously ordered them to remove a fence they still claim sits on their property—despite the line established by the Blakely survey showing otherwise. They maintain this order is in error because the original judgment made no mention of the current fence.
While the 2009 judgment does not reference an encroaching fence or require its removal, the offending fence was not built until June of 2010. Thus, the lack of a reference is neither surprising nor fatal.
The Flemings had several opportunities to prove their counterclaim to the trial court; they did not. If they lacked confidence in the Blakely survey, they could have cooperated with the Hall survey; they did not. Instead, they stalled the proceedings and when they ultimately arranged for Aarco to perform a survey, they misled the surveying team into believing the work was being done solely for them and prevented the Jesseys from participating in the court-ordered activity.
The Flemings lost this battle on February 12, 2009, when judgment was entered for the Jesseys stating:
IT IS HEREBY ORDERED AND ADJUDGED that the boundary line between the [Jesseys'] lands as described in the Complaint and the [Flemings'] lands is truly and accurately depicted by the survey signed August 16, 1985 by Douglas J. Blakely, PLS No. 2783, a copy of which is attached, annexed and incorporated herein by reference herein with full force and effect as if set out at length.The Flemings appealed the loss to us, and even sought discretionary review in the Supreme Court of Kentucky, all without success.
IT IS FURTHER ORDERED AND ADJUDGED that all claims, counterclaims and defenses presented to the trial court throughout this litigation and not specifically
addressed by this Judgment are hereby extinguished by operation of law with each party to bear their own costs.
Consistent with KRS 411.120, the Jesseys supported their claim to the disputed land with the Blakely survey. Thus, they relied on the strength of their own title rather than some perceived weakness in the Flemings' title. Whitaker v. Shepherd, 280 Ky. 713, 134 S.W.2d 604, 607 (1939) (internal citations omitted). In a previous opinion, a panel of this Court determined the Blakely survey was both sound and sufficient. The Flemings' claim to the disputed land having been extinguished, they had no right to erect a fence on the Jesseys' land and the trial court was wholly within its authority to order removal of the fence.
Kentucky Revised Statutes. The statute directs:
[a]ny person having both the legal title and possession of land may prosecute suit, by petition in equity, in the circuit court of the county where the land or some part of it lies, against any other person setting up a claim to it. If the plaintiff establishes his title to the land the court shall order the defendant to release his claim to it and to pay the plaintiff his costs, unless the defendant by his answer disclaims all title to the land and offers to give such release to the plaintiff, in which case the plaintiff shall pay the defendant's costs, unless for special reasons the court decrees otherwise respecting the costs.
Wherefore, the order to remove fence entered by the Letcher Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: James W. Craft, II
Whitesburg, Kentucky
BRIEF FOR APPELLEE: Gary D. Jessey, pro se
Jenkins, Kentucky