Opinion
2023-CA-0796-MR
09-20-2024
KIRA HASSENGER APPELLANT v. DONALD MEYER; DANIEL URLAGE; AND MARY KAY URLAGE APPELLEES
BRIEFS FOR APPELLANT: Randy J. Blankenship Erlanger, Kentucky BRIEF FOR APPELLEES: Richard G. Johnson Ft. Thomas, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM PENDLETON CIRCUIT COURT HONORABLE JAY B. DELANEY, JUDGE ACTION NO. 21-CI-00085
BRIEFS FOR APPELLANT: Randy J. Blankenship Erlanger, Kentucky
BRIEF FOR APPELLEES: Richard G. Johnson Ft. Thomas, Kentucky
BEFORE: CALDWELL, McNEILL, AND TAYLOR, JUDGES.
OPINION
McNEILL, JUDGE
This case involves a dispute over an easement located in Pendleton County, Kentucky. Appellant-grantor is Kira Hassenger (Grantor). Appellees-grantees are Donald Meyer, Daniel Urlage, and Mary Kay Urlage (Grantees). The parties own adjoining properties.
Meyer and Hassenger were not original grantors/grantees. They took title to their respective real estate subject to the easement at issue here. We use the titles Grantor and Grantees for the sake of simplicity.
Grantees have an express easement by deed entitling them to access a portion of Grantor's property for ingress and egress purposes. Grantor filed suit in Pendleton Circuit Court seeking damages and injunctive relief on the basis that Grantees had exceeded the permissible bounds of the easement, causing damage to, and interfering with, Grantor's use of her property. Grantor also sought damages arising from trespass and intentional infliction of emotional distress (IIED). The circuit court granted Grantees' motion for summary judgment on all issues. Grantor appealed to this Court as a matter of right. For the following reasons, we affirm.
Grantor does not raise IIED as an issue on appeal.
STANDARD OF REVIEW
A motion for summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56.03. "Because no factual issues are involved and only a legal issue is before the court on the motion for summary judgment, we do not defer to the trial court and our review is de novo." Univ. of Louisville v. Sharp, 416 S.W.3d 313, 315 (Ky. App. 2013) (citation omitted). With this standard in mind, we turn to the applicable law and the facts of the present case.
Kentucky Rules of Civil Procedure.
ANALYSIS
Grantor generally argues that the circuit court erred in granting summary judgment, and specifically argues that she was not required to offer proof of the amount of her monetary losses. She further contends that Grantees have overburdened their easement by destroying or greatly damaging her real property with trucks, etc. Grantor claims that this traffic is burdensome and detrimental to her and her children. Grantee Meyer testified that the vehicle traffic was necessary at the time because he was building a house on his property. The court noted on the record that the vehicle traffic was legitimate for construction purposes and has since decreased. The record also indicates that Grantor began constructing an alternative path for Grantees' use. The parties dispute the efficacy of this alternative passway. In the court's order granting summary judgment, the circuit court summarized the evidence and arguments as follows:
[Grantor] contends in her Complaint that the original easement should be extinguished due to [Grantees'] conduct and her provision of an alternative road for [Grantees] and their guests. However, Plaintiff provides no legal basis to support extinguishing an easement expressly granted in a dominant estate's deed. The Court also finds no argument to support this claim; to the contrary, forfeiture of easements is not favored under the law. [Grantor's] construction of an alternate passway has no bearing on the case because the original easement is
not one of mere necessity, but an easement acquired by deed. Accordingly, there are no grounds to extinguish [Grantees'] easement outright.
. . . .
The easement granted to the [Grantees] (and their successors) clearly states that they and their guests and agents have the "right to freely pass and repass on foot, or with animals and vehicles of every description" to and from the road. [Grantees] also have the responsibility of maintenance of the easement area "to the degree necessary to serve their needs" and "shall restore any disturbed area resulting from the use of this easement." While Plaintiff asserts that Defendants and their agents have caused damage by leaving ruts in the road and adjacent grass, it is the responsibility of Defendants to restore those areas. The evidence shows that [Grantees] had fresh rock placed on the driveway, flattened the middle of the driveway with a tractor, and mowed the grass within the easement area. Performing such maintenance actions goes toward restoring the disturbed areas and is thus permitted under the terms of the easement.(Citations omitted.)
The circuit court also determined that the standards for relocation or modification of an easement were not satisfied here. See Wells v. Sanor, 151 S.W.3d 819, 823-24 (Ky. App. 2004). In support, the court acknowledged Grantor's testimony that "the alternate entrance is about 100 feet from the original entrance." The court further concluded that the evidence "does not show any unpermitted use of the easement or financial detriment suffered; therefore, there is no basis for the physical damages claim." In the alternative, Grantor "has not submitted any evidence of monetary damages that could remedy her claim." Therefore, punitive damages were also improper. Lastly, the court dismissed the IIED claim based on lack of affirmative evidence of injury.
Having reviewed the underlying record - including the three-hour temporary injunction hearing - and in consideration of the arguments and law presented, reversal is not required. More precisely, we have not been presented with any legal principle dictating relocation, modification, or extinguishment of the express easement at issue. Therefore, there is no cognizable trespass claim. And without a genuine dispute of material fact regarding violation of the express easement/trespass, damages would not be permitted. To be clear, the law provides remedies for such violations. See, e.g., Phelps v. Fitch, 255 S.W.2d 660, 662 (Ky. 1953) ("There is some contention by the [Appellants] that the coal trucks are using more than nine feet in width of the passway. We think the chancellor was justified in concluding from the evidence that any such use was only casual, and not unreasonable. If the [Appellants] can establish an abuse of the easement in the future, they will have a remedy by way of damages."). But cf. Sawyers v. Beller, 384 S.W.3d 107, 111 (Ky. 2012) ("While it is true that the owners of the dominant estate must use their right so as to be as little burdensome as possible to the servient estate, id., it is nevertheless also true that the owners of the easement are not strictly limited to purposes for which it had been historically used.") (citation omitted). In sum, the record in the present case provides no foundation for violation - much less monetary or injunctive relief - such as to mandate reversal in this instance.
While it is true that the Complaint in the present case did not specifically plead "Trespass to Land," Grantor pleaded in pertinent part as follows: "COUNT ONE-PHYSICAL DAMAGE TO PROPERTY." The Complaint also notes that "Defendant has utilized a side roadway to the right of Plaintiff's home of which they have no easement or applicable right to ingress and egress to their respective land." A review of the video record further illustrates that trespass was potentially at issue here, and certainly no surprise. In any event, this issue is immaterial to our holding, and need not be addressed further.
CONCLUSION
For the foregoing reasons, we AFFIRM the Pendleton Circuit Court's summary judgment order entered on June 2, 2023.
ALL CONCUR.