Opinion
NO. 2015-CA-001859-MR
03-17-2017
GLORIA M. LEWIS APPELLANT v. TIMOTHY BIGGS APPELLEE
BRIEFS FOR APPELLANT: John T. Aubrey Manchester, Kentucky BRIEF FOR APPELLEE: Charles E. Keith Manchester, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CLAY CIRCUIT COURT
HONORABLE OSCAR G. HOUSE, JUDGE
ACTION NO. 12-CI-00094 OPINION
AFFIRMING
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BEFORE: ACREE, CLAYTON AND J. LAMBERT, JUDGES. ACREE, JUDGE: Gloria Lewis appeals from the Clay Circuit Court's June 9, 2015 judgment and order (1) finding that the disputed boundary line between her property and that of Timothy Biggs is as described in the survey performed by Reece Land Surveying, Professional Land Surveyors, and (2) ordering Lewis to pay $4,000 in attorney fees and litigation expenses as well as $1,800 in damages resulting from a failed Wildlife Habitat Incentive Program (WHIP) contract. We affirm.
I. Factual and Procedural Background
Gloria Lewis sought a determination of the boundary line adjoining her property and that of Timothy Biggs property in Clay Circuit Court in March 2012. The dispute arose between the two neighbors after Biggs cut timber on an area Lewis claimed to be hers. The disputed area is approximately eight acres. The properties are located on Wagon Fork Road in Clay County, Kentucky. Trial was conducted on the matter on August 18, 2014.
Lewis testified that she had owned her property since 1986. Prior to that, her parents owned the property and prior to their ownership, the owner was her uncle. Lewis testified that a drain that runs between her property and Biggs's has always been recognized as the boundary line. Several of Lewis's family members having lifelong familiarity with the property also testified that they always knew the drain as the property line.
Lewis submitted to the court a plat of the property from surveyor, Richard Reece, which depicted the parties' properties at issue. The survey was performed on December 29, 2011, and the plat completed on January 5, 2012. However, no surveyor testified at trial.
Biggs testified that he had purchased his property in 2000, and he was shown the property lines by the person who sold him the property. Biggs understood the boundary line between his and Lewis's property to be the ridge line, also depicted on Reece's survey plat. There is an old cemetery that sits within the disputed eight acres. Biggs testified that his father is buried there, along with several other members of his family. Lewis believed the cemetery to be an old frontier cemetery and alleged that Biggs had buried his father there without permission from her parents. Other than Biggs' father, Lewis testified she did not know anyone buried in the cemetery.
Biggs also introduced at trial a statement from the surveyor, Richard Reece. The statement read:
I am writing this letter at the request of Timothy Biggs an adjoining property owner to the Gloria Lewis Property that I recently surveyed. As I understand it, Gloria Lewis had filed an action in the Clay County Courts over an area that she claims that she owns. Gloria was claiming the property at the time I completed the survey and as I explained to her, I did not agree that her deed called for the property. It was my opinion that the deed ran up the ridge between her property and the Biggs property along an old fence as shown on my plat of survey of same. I could find no evidence of occupation to the drain which she claims, no fences, etc. There were also two other reasons I did not believe that her deed called for the property, one was a survey made in the 1980's by Jim Meredith that showed the property line where I placed it, and the fact that the chain of title for the small cemetery (which Gloria Lewis also claims is on her property) (Biggs cemetery) traced back to the parent tract for Timothy Biggs source of title.(R. at 23).
I also made a statement to the same on the Plat 1 prepared at the completion of the survey for Gloria Lewis.
Additionally, Biggs testified that he was denied $1,800 from the state's Wildlife Habitat Improvement Program because of the litigation involving the property. Biggs submitted documentation of the WHIP conservation plan and contract. Biggs is now unable to participate in the program because it is no longer in existence.
The court took the matter under advisement and issued a judgment and order on June 9, 2015, finding the boundary line to be as described by the Reece survey, as alleged by Biggs. The court further ordered Lewis to pay Biggs' attorney fees as well as the damages from the WHIP contract. Lewis filed a motion to alter, amend or vacate the court's decision, but the motion was denied. This appeal followed.
II. Standard of Review
When a trial court decides a matter without a jury, the findings of the trial court shall not be set aside unless clearly erroneous with due regard given to the opportunity of the trial judge to consider the credibility of the witnesses. Kentucky Rules of Civil Procedure (CR) 52.01. This rule has been held to apply to boundary disputes. Webb v. Compton, 98 S.W.3d 513, 517 (Ky. App. 2002); Croley v. Alsip, 602 S.W.2d 418, 419 (Ky. 1980).
III. Analysis
Lewis makes three arguments on appeal. First, she contends the circuit court erred in not considering the historical acceptance and reputation of the boundary line. Next, she argues the award of attorney fees was erroneous. And finally, Lewis asserts the award of damages from the WHIP contract was arbitrary and speculative. We address these arguments in turn.
Lewis argues the circuit court's determination of the boundary line is clearly erroneous because she presented evidence of the boundary line's location based upon historical, reputation evidence; Biggs was not as familiar with the property as was she and her family.
Evidence of the reputation of the location of an old boundary line is admissible for its establishment. Hail v. Haynes, 312 Ky. 357 (1950); Bringardner Lumber Co. v. Bingham, 251 S.W.2d 273, 274 (1952). However, such evidence is most persuasive in the absence of more direct proof of an ancient boundary line's location. See Smith v. Nowells, 12 Ky. 159, 160 (1822). In this case, Lewis and her family simply insisted the boundary line was located at the drain, and disagreed with the surveyor, Reece. The plat of the survey performed by Reece corresponds with the legal description for the common boundary line with Biggs in Lewis's deed; the deed identified the boundary line. Additionally, the location was consistent with a survey undertaken prior to Lewis's ownership of her property. The court found Reece's survey and his statement on the survey to be more persuasive than the testimony of Lewis and her family. We cannot conclude the findings of the circuit court were clearly erroneous. The Reece survey was of sufficient substantiality to support the judgment. Accordingly, we find no error.
Next, Lewis argues the circuit court's award of attorney fees to Biggs was clearly erroneous because Biggs did not demand attorney fees and this is not a circumstance in which such a recovery is permitted.
"Kentucky has long followed the 'American Rule,' that in the absence of a statute or contract expressly providing therefor, attorney fees are not allowable as costs, nor recoverable as an item of damages." Cummings v. Covey, 229 S.W.3d 59, 61 (Ky. App. 2007) (citations omitted). Nevertheless, "there are a few cases indicating that a trial court may have the discretion to award attorney fees in certain situations beyond the general rule, acting in equity." Id. at 62 (citing Kentucky State Bank v. AG Services, Inc., 663 S.W.2d 754 (Ky. App. 1984) and Flag Drilling Co., Inc. v. Erco, Inc., 156 S.W.3d 762 (Ky. App. 2005)). "In equity the award of costs and fees is largely within the discretion of the court, depending on the facts and circumstances of each particular case." Dorman v. Baumlisberger, 271 Ky. 806, 113 S.W.2d 432, 433 (1938).
In this case, Biggs made a demand for his costs expended in the lawsuit in his answer and counterclaim to Lewis's complaint. He further testified as to his expenses, including attorney fees, at trial as a result of the litigation commenced in 2012. Additionally, as the evidence presented at trial revealed, Lewis continued to pursue the lawsuit several months after she had been informed by her own surveyor that, based on the legal description in her own deed, the property she claimed she owned did not belong to her. Based on the foregoing, we discern no abuse of discretion by the trial court for its equitable award of attorney fees.
Lastly, Lewis argues that Biggs' award of damages from the WHIP contract were arbitrary and speculative because the contract was never completed. We disagree. Biggs testified that the contract could not be completed because of the boundary line dispute litigation initiated by Lewis. Biggs also provided the court with copies of his application, plans, and contract for the program. Biggs testified that the contract was to be for $1,800 for his participation in the program, but he was never able to take part because of the lawsuit. The program no longer is in existence, so Biggs does not have the option to renew his involvement in WHIP. Hence, Lewis has failed to show how Biggs' damages are arbitrary or speculative. This argument fails.
IV. Conclusion
For these reasons, the judgment and order of the Clay Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: John T. Aubrey
Manchester, Kentucky BRIEF FOR APPELLEE: Charles E. Keith
Manchester, Kentucky