Opinion
NO. 2017-CA-000918-MR
06-21-2019
GARY SMITH AND MARIN SMITH APPELLANTS v. BRIAN J. JORDAN AND KATHERINE JORDAN APPELLEES
BRIEFS FOR APPELLANT: Gregory W. McDowell Florence, Kentucky BRIEF FOR APPELLEE: Michael T. McKinney Burlington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOONE CIRCUIT COURT
HONORABLE RICHARD A. BRUEGGEMANN, JUDGE
ACTION NO. 15-CI-00847 OPINION
AFFIRMING
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BEFORE: ACREE, COMBS, AND MAZE, JUDGES. ACREE, JUDGE: Appellants, Gary and Marin Smith, appeal the Boone Circuit Court's March 10, 2017 judgment. We affirm.
FACTS AND PROCEDURE
The Smiths and the Jordans own adjoining lots in the Lassing Green Subdivision, an upscale residential subdivision in Boone County, Kentucky. Lassing Green is governed by certain Restrictive Covenants. Central to this action is Restrictive Covenant No. 8, which provides, in relevant part:
Fences. No fences shall be built on any part of said lot between the rear of the building constructed thereon and the street in front of the building. . . . On a corner lot, the section or sections of fence . . . running with the side street shall not extend closer to said side street at any point than the residence on said lot. . . .Lassing Green is not governed by a Homeowners Association.
The Jordans purchased their home/lot at 2085 Bayberry Lane in October 1996. The locations of the Jordans' driveway, fence, and basketball pad are all at issue. The Jordans' original driveway was in place at the time they acquired the property. About ten years later, in January 2005, they added a garage and extended their driveway. During construction, part of the original driveway was replaced. In 2001, the Jordans placed a portable basketball goal with a large plastic base next to their driveway. Sometime between 2009 and 2011, they installed a concrete anchor/pad in the same location that the plastic base had been located. Additionally, in 2002, they installed a fence in their backyard. The fence extends approximately six feet beyond the rear of their house.
The trial court found that it is not clear whether the driveway encroachment increased any during the construction, but it does not appear that it did.
The Smiths purchased their home at 2089 Bayberry Lane in 2003. Unlike the Jordans, the Smiths' lot is a corner lot situated at the intersection of Aspen Place and Bayberry Lane. The house front is not square with either road. Instead, it faces the corner where Aspen Place and Bayberry Lane intersect; the driveway and mailbox are on Bayberry Lane.
When purchasing their home, Gary Smith walked the boundary with the seller and understood the boundary line to be approximately one foot from the edge of the Jordans' driveway. During the next twelve years, the parties enjoyed a cordial relationship. All that changed in early 2015 when the Smiths had their property surveyed for the installation of a fence.
The survey revealed the Jordans' driveway encroached four inches onto the Smiths' lot, and that the basketball anchor/pad was also situated on the Smiths' property. The Smiths did not contact the Jordans about the encroachment; rather, they expected the Jordans would notice the survey markings and encroachment and, of their own accord, come to the Smiths seeking to make it right. The Jordans took no notice and did not suspect anything was awry.
Gary Smith resented that the Jordans did not approach him about the encroachment. On or about March 6, 2015, Gary confronted Brian Jordan, pointed out the encroachment, and informed him that he was installing a fence. Brian testified Gary indicated he would be placing a fence immediately next to the Jordans' driveway, using a "swinging motion" with his arm and hand to indicate the general area where the fence would be constructed. Brian asked Gary if he would consider placing the fence a little further from the Jordans' driveway. He expressed concern that a fence that close to his driveway would prevent him from opening his car door to enter or exit his vehicle, and he feared hitting the fence when backing out of his garage. Gary was non-committal. Gary testified Brian's statements only intensified his irritation. However, Brian did not realize Gary was angry, and he thought Gary was going to talk to his wife and get back with him on the fence's placement.
Three weeks later, on March 29, 2015, the Jordans returned home from church to find their basketball goal laying in their driveway. Brian approached Gary while he was mowing his grass to discuss the situation. Both testified the meeting was not cordial. Gary told Jordan that the fence was going in that week, and that Brian should get his "stuff" out of his yard.
The next day, John Cummins (the Contractor) arrived to install the fence. Smith had instructed the Contractor to place the fence on the very edge of the property line with no setback, requiring holes to be core-cut into the edge of the Jordans' driveway. The Contractor asked the Jordans if they were aware of the project. The Jordans objected and called the Boone County Sheriff's Deputy to intervene.
Gary was traveling for work; his wife, Marin Smith, was at home. The Contractor informed Gary via telephone that, under the circumstances, he would not install the fence on the Jordans' driveway. He offered to store the fencing materials in the Smiths' garage until the boundary dispute was resolved. Smith declined and directed the Contractor to continue with the fence's installation. The Contractor explained that, typically, a fence is setback inside the property line. Marin authorized the Contractor to install the fence a few inches from the Jordans' driveway so that it could be completed that day. The Contractor complied, installing the fence a few inches from the edge of the Jordans' driveway. Sometime thereafter, the Smiths installed landscaping along the fence where it borders the Jordans' property.
The Jordans hired a surveyor to survey the boundary line between the parties' properties to see if the Smiths' surveyor had erred. Both surveyors found the Jordans' driveway and the anchor for the Jordans' basketball goal encroached upon the Smiths' land. The surveyors agreed the driveway encroachment was relatively small - an area approximately 3-4 inches wide by 26.85 feet long.
The Jordans filed a declaratory judgment action seeking a determination that the Smiths' fence violated Restrictive Covenant 8. The Smiths filed a counterclaim, arguing the Jordans' driveway encroached upon their property, thereby constituting a trespass and a private nuisance, and seeking both damages to move the fence "up to the property line" and an injunction preventing the Jordans from trespassing on the Smiths' property. In their defense to the counterclaim, the Jordans pleaded waiver and estoppel, acquiescence, unclean hands, and the Smiths' failure to mitigate their damages.
The Smiths moved for summary judgment on the Jordans' declaratory petition, including their counterclaim, which the trial court granted in part. It found: (1) the Smiths' fence did not violate Restrictive Covenant 8; and (2) the Jordans' driveway and basketball goal anchor encroached upon the Smiths' property, thereby constituting a trespass. It reserved on the fact issue of damages for the trespass, and whether the Jordans' encroachment constituted a nuisance.
Relative to its first finding, the trial court reasoned that the controversy turned on whether the Smiths' lot fronts Aspen Place or Bayberry Lane. This is so because Restrictive Covenant 8 contains different fence standards for corner lots. For regular lots, the fence cannot protrude beyond the rear of the house on the lot. (R. 15) ("No fences shall be built . . . between the rear of the building constructed thereon and the street in front of the building."). For corner lots, the same rule applied for fences running with the street in front of the house. But for fences running with the "side street," the fence can protrude beyond the rear of the house, provided it does not extend beyond the front of the house on the lot. (Id.) ("On a corner lot, the section or sections of fence . . . running with the side street shall not extend closer to said side street at any point than the residence on said lot."). Again, the Smiths' lot is a corner lot.
The trial court concluded that the Smiths' lot "fronts" Aspen Place. The Smiths' fence, however, "runs" with Bayberry Lane, the side street. Though the fence protrudes beyond the rear of the house, it does not extend beyond the front of the Smiths' residence. Accordingly, the trial court concluded the Smiths' fence does not offend Restrictive Covenant 8. It also mentioned in passing that the Jordans "are pointing to their neighbor's purported infraction while their own fence stands in violation of the very same covenant [the Jordans] have raised." (R. 242).
The Smiths then amended their counterclaim, seeking a declaration that the Jordans' fence violates Restrictive Covenant 8 and requesting an injunction directing the Jordans to remove the offending portion of their fence. The parties agreed to a bench trial, which the trial court conducted on February 10, 2017. The issues before the trial court were: (1) whether the Jordans' fence indeed violated Restrictive Covenant 8; (2) whether the Jordans' driveway encroachment constituted a nuisance; and (3) the damages owed the Smiths for the trespass and, if the trial court the encroachment a nuisance, damages for the nuisance as well.
The Smiths presented testimony from three witnesses regarding damages caused by the Jordans' encroachment. Kyle French testified it would cost $1,500.00 to saw cut and remove the driveway encroachment. Gregory Shelander with Mills Fence Co. testified it would cost $1,550.00 to remove the Smiths' fence and then re-install it directly on the property line. And Jerry Schleper with Baeten's Nursery testified it would cost $1,410.52 to remove the buried concrete footer and replace the landscaping. The Smiths also called the contractor, who confirmed he installed the fence as Marin Smith directed him - setback from the property line.
In response, the Jordans presented testimony from William Bramble, a certified real estate appraisal. Bramble testified that, as of January 2017, the Smiths' property appraised for $356,500.00 and had suffered no diminution in its fair market value or sales price as a result of the driveway or anchor pad encroachments. He clarified that, assuming the driveway encroachment occurred during the driveway expansion in 2005, the Smiths suffered no loss in market value of their property during the encroachment period between 2005 and 2017. Bramble also stated that, in his opinion, the encroachments do not constitute a nuisance because they do not interfere with the Smiths' use or enjoyment of their property and, as a result, the Smiths suffered no damages or loss in fair market value of their property due to any nuisance. He stated that, in his opinion, the encroachments do not affect the Smiths' use of their property at all.
The Jordans also presented photos and testimony demonstrating that at least ten other houses in Lassing Green have fences that extend beyond the rear of those houses toward the street. They also presented testimony that the owners of one-half of the lots with fences are in violation of Restrictive Covenant 8.
The trial court entered its judgment on March 10, 2017. It first found the encroachments to be a trespass, but not a nuisance. It next found Bramble's testimony persuasive that the Smiths' property suffered no diminution in value and the Smiths' "loss of use/value damages from the trespass are, if any, nominal." The trial court explained:
As for the actual trespass, the lion's share of the damages Smith alleges relate to moving the fence and disrupting the yard and landscaping to get to the basketball goal footer. Removal of the footer would cost far less had the fence and landscaping not yet been placed. As to moving the fence, although Mr. Smith insists he did not want the fence placed with any set-back, there is no dispute that Mrs. Smith authorized it. Since the Smiths placed the fence despite the encroachments, they cannot fairly put the cost of moving and replacing it onto the Jordans. Nor should the Jordans bear the cost of disrupting/restoring the Smiths' yard/landscaping to remove the footer that the Smiths enclosed with their own fence and buried under mulch. The Smiths have a right to have the encroachments removed but not at the costs they have proposed. Mr. Jordan testified that he would saw-cut his own driveway at far less expense than what Kyle French would charge. The Court can think of no reason why he should not be allowed sufficient time to do so. As for the basketball goal footer, because it is inside the Smiths' fence, it should be moved only at their direction. But, again the costs allowed for doing so should not include possible damage to the yard or rutting the landscaping. If mitigation of costs and losses had been considered, this would have been done as the landscaping was performed. At that time there would have been a skid-steer already on-site. Or, had Mr. Smith formally requested Mr. Jordan to remove it, he might have done so without a skid steer, by shovel, pick-hammer, or spud-bar.(R. 307-08). It awarded the Smiths $350.00 in nominal damages and gave the Jordans sixty days to remove the four-inch portion of their driveway that encroached upon the Smiths' land.
Finally, the trial court denied the Smiths' counterclaim seeking a declaration that the Jordans' fence also violates Restrictive Covenant 8 and requiring the Jordans to remove the portion of their fence that extends six feet beyond the rear of their house. The Smiths argued that, because the Jordans first filed suit to enforce Restrictive Covenant 8 as against the Smiths, they should be estopped from challenging enforcement of that same covenant against their own fence. The trial court rejected the Smiths' estoppel argument, finding estoppel inappropriate in this case because the Jordans did not originally file suit to merely enforce the subdivision's restrictive covenants, but because they stood to lose a significant use of their driveway due to the location of the Smiths' fence. It also refused to enter an injunction requiring the Jordans to remove the offending portion of their fence. It reasoned:
Under Covenant No. 21, each lot owner in Lassing Green acknowledged "that irreparable harm will result" to others in the community from a violation of the covenants. That Covenant further recites that the persons harmed are entitled to relief at law and in equity. . . . And the Court finds, on the facts present here, that the Smiths will not suffer irreparable harm form the Jordans' fence. First of all, one-half of the fences in Lassing Green have similar violations.
Secondly, the Smiths cannot be heard to complain about the Jordans' fence when their own runs parallel with it. Indeed, the Smiths fence extends closer to the street than does the Jordan fence. The Jordan fence offends by extending toward the street about six feet from the rear of their home. But the Smith fence, which runs adjacent to the Jordans', extends toward the street fifty feet further. The Smiths have not shown how they suffer any harm from the Jordan fence when their own reaches nearly ten times closer to the street. Rather, their position is simply that, as a corner-lot owner, they enjoy such leeway while the Jordan do not. Or, perhaps there is a yearning to administer a dose of comeuppance. But, of course, that is not irreparable harm.(R. 311-12). The Smiths moved pursuant to CR 59.05 to alter, amend, or vacate the trial court's judgment. The trial court denied their motion. The Smiths appealed.
This Court has held that, because the Smiths own a corner-lot, they have a right to their fence. But by placing it as they did, they are estopped from claiming that their neighbor's adjacent fence-which extends merely one-tenth the length of their own-causes them irreparable harm. To hold otherwise would be to enforce an arbitrary and absurd result, and tantamount to vesting oligarchical supremacy in corner lots. Something that the covenants clearly did not intend.
Kentucky Rules of Civil Procedure.
STANDARD OF REVIEW
We review a trial court's findings of fact following a bench trial to determine if those findings are clearly erroneous. CR 52.01. Factual findings are clearly erroneous if unsupported by substantial evidence. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). Our Supreme Court "defined substantial evidence as evidence of substance and relevant consequence, having the fitness to induce conviction in the minds of reasonable men." Curd v. Kentucky State Bd. of Licensure for Professional Engineers and Land Surveyors, 433 S.W.3d 291, 304 (Ky. 2014) (citing Kentucky State Racing Comm'n v. Fuller, 481 S.W.2d 298, 308 (Ky. 1972) (internal quotation marks omitted)). Reviewing courts are prohibited from disturbing the circuit court's factual findings that are supported by substantial evidence, despite whether a contrary conclusion might have been reached. Moore, 110 S.W.3d at 354.
Notwithstanding the deference due the trial court's factual findings, its conclusions of law, reached after making its findings, are reviewed de novo. Hoskins v. Beatty, 343 S.W.3d 639, 641 (Ky. App. 2011).
ANALYSIS
The Smiths present two arguments. First, they claim the trial court erred when it refused to enforce Restrictive Covenant 8 as to the Jordans' fence. Second, they contend the trial court erred in awarding $350.00 in nominal damages for their trespass claim. A. Restrictive Covenant 8
The Smiths first argue the trial court erred when it refused to enforce Restrictive Covenant 8 against the Jordans. They assert the Jordans' fence clearly violates Restrictive Covenant 8, and the trial court acknowledged as much in its original order granting summary judgment. The Smiths also claim the Jordans were judicially estopped from arguing against enforcement of the restrictive covenant. We start with the Smiths' judicial estoppel argument.
The doctrine of judicial estoppel is an equitable principle designed to protect the integrity of the judicial process by preventing a party from taking inconsistent positions in separate judicial proceedings. Mefford v. Norton Hospitals, Inc., 507 S.W.3d 580, 584 (Ky. App. 2016) (citing Colston Investment Co. v. Home Supply Co., 74 S.W.3d 759, 763 (Ky. App. 2001)). It generally prevents a party from asserting a claim in a legal proceeding that is contrary to a claim asserted by that party in a prior proceeding. New Hampshire v. Maine, 532 U.S. 742, 749, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001); Hisle v. Lexington-Fayette Urban County Government, 258 S.W.3d 422, 434 (Ky. App. 2008). Judicial estoppel "preserve[s] the integrity of the courts by preventing a party from abusing the judicial process through cynical gamesmanship." Lewis v. Weyerhaeuser Co., 141 Fed. Appx. 420, 424 (6th Cir. 2005) (citation omitted). However, it is a harsh doctrine because it binds a party to a position without regard to the truth of either position taken. Eubanks v. CBSK Financial Group, Inc., 385 F.3d 894, 897 (6th Cir. 2004). Courts have urged its cautious application. Id.
"[J]udicial estoppel is 'an equitable doctrine invoked by the court at its discretion.'" Lorillard v. Tobacco v. Chester, Willcox & Saxbe, 546 F.3d 752 (6th Cir. 2008) (quoting New Hampshire, 532 U.S. at 750, 121 S. Ct. at 1814). In Kentucky, matters committed to the circuit court's sound discretion are reviewed by an appellate court for an abuse of discretion. See generally Budig v. Budig, 481 S.W.2d 95, 97 (Ky. 1972) (declining to interfere with matters clearly within the sound discretion of the trial court unless there was an abuse of that discretion); Lewis, 141 Fed. App'x at 423-24 ("Indeed, a majority of federal courts that have addressed the issue apply the abuse of discretion standard to a district court's application of judicial estoppel."). We owe deference to the trial court's exercise of its discretion in this case.
The trial court found the application of judicial estoppel inappropriate under these particular facts. It reasoned that, had the Jordans filed their original declaratory petition as concerned citizens of Lassing Green simply to enforce the restrictive covenants against the Smiths despite any actual harm to the themselves, it might be inclined to apply the doctrine. The trial court recognized, however, that the Jordans sought to enforce the restrictive covenants to prevent the legitimate, and reasonable, fear that the Smiths' fence would impact their use of their driveway. The Smiths, on the other hand, sought to enforce the restrictive covenants seemingly out of spite or, as the trial court put it, to "administer a dose of comeuppance." The trial court did not view the Jordans' attempt to defend themselves against the Smiths' counterclaim as engaging in cynical gamesmanship or their contrary arguments as subverting the integrity of the courts.
At its core, judicial estoppel is an equitable doctrine. The trial court, exercising its discretion, chose not to apply it in this case, finding equity did not warrant its application. To say the trial court was compelled to apply the equitable doctrine would strip the trial court of its discretion. For similar reasons, we also decline to do so. Ultimately, we cannot say the trial court's decision amounts to an abuse of its considerable discretion.
This brings us to the other component of the Smiths' argument. They assert the Jordans' fence clearly violates Restrictive Covenant 8 because it extends six feet beyond the rear of their house. The Smiths contend the trial court was obligated to enforce the restrictive covenant by ordering the Jordans to remove the offending portion of their fence. The trial court refused rule in the Smiths favor, finding the Jordans' non-compliant fence caused the Smiths no irreparable harm.
The trial court's ruling does not turn on the issue of liability - it already found the Jordans' fence violates Restrictive Covenant 8. Instead, it turns on the issue of damages and/or relief. In their amended counterclaim, the Smiths requested compensatory damages and injunctive relief because of the harm they experienced as a result of the Jordans' non-compliant fence. Specifically, they asked the trial court to issue an injunction directing the Jordans to remove the offending portion of their fence. CR 65.01 ("An injunction may restrict or mandatorily direct the doing of an act.").
An "injunction is an extraordinary remedy and will not be granted except upon a clear showing of an existing equitable right." Oscar Ewing, Inc. v. Melton, 309 S.W.2d 760, 761 (Ky. 1958). "Injunctive relief is proper only where the party seeking such relief has made a clear showing that his rights will be violated and that, as a result, he will suffer immediate and irreparable injury." Auxier v. Commonwealth, Bd. of Embalmers and Funeral Directors, 553 S.W.2d 286, 288 (Ky. App. 1977).
The trial court found that the Smiths suffered no harm, irreparable or otherwise, as a result of the Jordans' non-compliant fence. The parties' respective fences run parallel with one another. The Jordans' fence stops six feet beyond the rear of their house. The Smiths' fence extends another fifty feet beyond that toward the road. The trial court found that the Smiths' fence reaches nearly ten times closer to the street than the Jordans' fence. How, then, can the Smiths complain of harm from the Jordans' fence? The Smiths argue that their status as owners of a corner lot entitles them leeway as to the placement of their fence that owners of regular lots, like the Jordans, are not afforded. Perhaps that is true. But it still does not result in harm to the Smiths.
Equity is at the heart of this case. The trial court has considerable discretion in applying equitable principles to reach a fair and just resolution. It exercised that discretion in a reasonable manner. We cannot say the trial court's decisions amount to reversible error. B. Damages
The Smiths also contend the trial court erred in awarding them a mere $350.00 in damages for their trespass claim. They argue their proof of damages went unrefuted, and the trial court's damages award is unsupported by the evidence. Again, we disagree.
In Ellison v. R & B Contracting, Inc., 32 S.W.3d 66 (Ky. 2000), our Supreme Court reaffirmed the measure of damages for injury to real estate: "(1) if the injury to the property is permanent, the amount by which the fair market value of the property decreased immediately prior to and after the [injury]" is the measure of damages; "but (2) if the injury to the property is temporary, the cost to return it to its original state" is the measure of damages. Id. at 69. Explaining the distinction between "permanent" and "temporary" injuries, the Supreme Court observed that "injuries to real estate are 'permanent' where the cost to restore the property to substantially its original state exceeds the amount by which the injury decreased the property's value." Id. at 70. The Supreme Court held that "[a]s a practical matter, the amount by which the injury to the property diminishes its total value operates as an upper limit on any damage recovery." Id. "Claimants may receive restoration cost damages in injury-to-property cases only when" restoration costs are less than the property's diminution in fair market value. Id. (emphasis added); Mountain Water Dist. v. Smith, 314 S.W.3d 312, 315 (Ky. App. 2010) ("The effect of Ellison is to prevent a claimant from seeking cost of repair damages that exceed the diminution in fair market value.").
In this case, the Smiths presented evidence that the cost to restore and repair the injury would be $4,460.52. The Jordans countered that figure with their own evidence establishing that the "injury" to the Smiths' property, i.e., the encroachments, did not cause a decrease in the property's fair market value. Bramble testified specifically that the encroachments did not interfere with the Smiths' use or enjoyment of their land, and the Smith's property suffered no diminution in fair market value at all because of the encroachments. The Smiths did not offer direct contradictory appraisal evidence as to the diminution in the fair market value of their land.
The Jordans suggest that, because the cost of repair damages ($4,460.52) exceeds the diminution in fair market value ($0), the Smiths are not entitled to recover at all. At first blush, Ellison seems to support that position. 32 S.W.3d at 70 ("[T]rial courts shall require the jury to find whether the injury may be repaired at a cost less than the diminution in the value of the property, and, if the jury finds otherwise, limit the claimant's recovery to the diminution in the value of the property."). A close reading of Ellison, however, reveals that diminution values can be deduced from cost-of-repair evidence. In Ellison, the defendant offered evidence that the fair market value of the parcel at issue did not change due to the alleged injury. Id. at 76. The plaintiffs in Ellison, like the Smiths in this case, introduced no contradictory "direct" evidence of a decline in fair market value through the testimony of a real estate appraiser. Instead, the Ellison plaintiffs only offered evidence of restoration costs. Our Supreme Court viewed the "evidence presented concerning the cost to [repair and restore the injured property] as inferential evidence of diminution in value." Id. at 77. It said:
Parties can contradict expert testimony in more than one way. We believe the [plaintiffs'] inferential evidence regarding a diminution in the fair market value of their property as a result of the "clean up costs" associated with restoring the property to its original position was a sufficient basis for the trial court's submission of the damages issue to the jury. Evaluation of the weight which should be given to expert testimony is the exclusive province of the jury, and a jury may properly conclude that indirect evidence gives it a better sense of the fair market value of a piece of property than does an "expert's" opinion. . . . We believe a reasonable [fact finder] could have disregarded the testimony of [the real estate appraiser] and believed that the fair market value of the [plaintiffs'] property did decline after the" injury.Id. at 76. Applying Ellison to this case, it is possible for the trial court, as the fact finder in this matter, to infer from the Smiths' $4,460.52 restoration costs that the Smiths' property did, in fact, diminish in fair market value to this degree and in this amount.
"Questions regarding the cost of repairing a particular injury to real estate and the extent of any diminution in fair market value of the real estate as a result of an injury are questions of fact." Ellison, 32 S.W.3d at 70. Here, the trial court, acting as the fact finder, was presented with conflicting evidence as to the "diminution" of the Smiths' property: $4,460.52, as presented by the Smiths by way of their restoration costs, and $0, as presented by the Jordans by way of Bramble's expert testimony. The trial court ultimately found Bramble's testimony more persuasive. As the fact finder, it was entitled to rely on that evidence to the exclusion of the Smiths' evidence.
The trial court nonetheless chose to award the Smiths nominal damages. Ellison, 32 S.W.3d at 71 ("[E]ven if the plaintiff suffered no actual damages as a result of the trespass, the plaintiff is entitled to nominal damages."). "'Nominal damages' are a trivial sum of money awarded to a litigant who has established a cause of action but has not established that he or she is entitled to compensatory damages." Id. at 71 n.7. The trial court deemed it prudent to award the Smiths $350.00 in nominal damages. Its damages award was just and appropriate.
The Smiths lean heavily on Radcliff Homes, Inc. v. Jackson, 766 S.W.2d 63 (Ky. App. 1989) for its statement that under "Kentucky law, all injuries of every nature, whether real or personal, suffered from a nuisance, whether temporary or permanent, are recoverable as damages." Id. at 67. But that case is clearly distinguishable. Radcliff involved a nuisance. This case involves a trespass. In fact, the trial court specifically found the encroachment did not constitute a nuisance. This is essential because, unlike a trespass case, "it is as a minimum clear that there can be no nominal damages in a nuisance action." Id. at 66. In other words, there must be compensatory damages awarded if the fact finder declares there to be a nuisance. See id. This does not hold true in trespass matters. Ellison makes it clear that there can be a trespass without actual injury and, in that situation, only nominal damages are mandated. 32 S.W.3d at 71; Smith v. Carbide and Chemicals Corp., 226 S.W.3d 52, 55 (Ky. 2007) ("It is the universal inference of the law that every unauthorized entry upon the land of another person results in some damages, though it may be nominal." (citation omitted)). Radcliff is inapposite to this case.
CONCLUSION
We affirm the Boone Circuit Court's March 10, 2017 judgment.
ALL CONCUR. BRIEFS FOR APPELLANT: Gregory W. McDowell
Florence, Kentucky BRIEF FOR APPELLEE: Michael T. McKinney
Burlington, Kentucky