MARILYN DISTLER v. PAUL L. MILLER AND PEGGY MILLER
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RENDERED: January 29, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1997-CA-001318-MR
MARILYN DISTLER
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE F. KENNETH CONLIFFE, JUDGE
ACTION NO. 93-CI-002616
v.
PAUL L. MILLER AND
PEGGY MILLER
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE, COMBS AND McANULTY, JUDGES.
McANULTY, JUDGE: This is an appeal from the Jefferson Circuit
Court order which denied exceptions to a Commissioners’ Report
and approved the partition of real property as determined by the
Commissioners.
Appellant argues that in formulating its decision
the trial court improperly considered material which was not in
the record produced in court and also improperly conducted its
own ex parte investigation.
Because we find that Appellant
failed to preserve the errors asserted, the decision of the trial
court is affirmed.
This action originated as a Petition for Partition of
Real Property Pursuant to KRS 381.135.
The trial court appointed
three Commissioners to partition the property.
The Commissioners
filed their Report, entitled the Division and Allotment Report.
Appellant subsequently filed exceptions to the report and a
hearing was held.
The Appellant’s exceptions to the report
included: discrepancies as to the acreage, disagreement with the
value assigned the five tracts, the reference to the Appellees’
“historical use” of the property and that the land should be
surveyed.
At the hearing,
Appellant presented the testimony of
Mr. Murrell Burton, a licensed appraiser, as to the value of
Tract #4, which was the only tract which Burton felt was
overvalued.
Burton took issue with the tracts of land which the
Commissioners used as comparables to appraise Tract #4.
Several
of the comparables, he stated, had improvements upon them whereas
Tract #4 did not.
Commissioner Suell was called to testify
regarding the comparables.
Subsequent to the hearing, Commissioner Suell sent a
letter, dated January 13, 1997,
to the Court in order to clarify
his testimony because he had not been prepared to testify
regarding the comparables at the hearing.
This letter stated
that Mr. Burton had incorrectly identified the comparable
properties and that the comparable tracts were, in fact,
unimproved.
Upon receipt of a courtesy copy of Commissioner Suell’s
letter, counsel for Appellant sent a letter to the Court
indicating that the Commissioner’s letter had been inappropriate
and that the Court should disregard it and make its decision on
the evidence presented at the hearing.
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Moreover, Appellant’s
counsel indicated a desire to cross examine Commissioner Suell on
his credibility and impartiality, should opposing counsel wish to
bring this issue back to court.
Appellant did not file any
formal motion to strike this letter, nor did she file exceptions
to this letter.
In an order entered May 16, 1997, the trial court
denied the exceptions and adopted the Report of the
Commissioners.
Appellant filed her Notice of Appeal on May 28,
1997.
On appeal Appellant asserts two errors.
First, she
submits that the trial court erred in considering the information
provided by Commissioner Suell after the hearing.
Second, she
contends that the trial court erred in conducting it’s own ex
parte investigation.
The law is clear that where the trial court has not
been given an opportunity to rule on appellant’s contentions of
error, there can be no appellate review of the alleged errors.
Payne v. Hall, Ky., 423 S.W.2d 530 (1968).
Moreover, if the
trial court has not ruled on the question there can be no error
for the Court of Appeals to review.
Kaplon v. Chase, Ky.App.,
690 S.W.2d 761, 763 (1985).
In this case, there is no question that Appellant
failed to raise her concerns regarding the ruling with the trial
court.
Appellant did not file a CR 59.05 Motion to Alter, Amend
or Vacate the Judgment.
Therefore, the trial court was denied an
opportunity to address the allegations of error and impropriety.
As such, there can be no review of the alleged errors.
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The Court notes with interest that Appellant failed to
address this issue in her Reply brief.
Appellant informed this
Court that Appellees were precluded from complaining about the
hearing because they made no objection and the error was,
therefore, not preserved for review.
However, Appellant
neglected to respond to similar contentions raised by Appellees
and explain how Appellant’s own assertions of error were
preserved.
Unfortunately, Appellant’s failure to bring these
errors to the attention of the trial court is fatal to her
appeal.
For the foregoing reason, the order of the Jefferson
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Edward F. Harrington, Jr.
Airhart & Associates
Louisville, Ky
Frank W. Burke, Sr.
Jean W. Bird
Wyatt, Tarrant & Combs
Louisville, Ky
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