LINDA SUE TURNER ROBERTS and MITCHELL ROBERTS v. WILLIAMS E. ROBERTS, AILEEN ROBERTS, HARVEY VICTOR ROBERTS, MARSHA ROBERTS, BETTY ROBERTS WILLIAMS, JESSE WILLIAMS, FAY ROBERTS NEELY, BILLY NEELY, GLORIA DEAN ROBERTS GAY and JAMES GAY
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RENDERED:
April 20, 2001; 2:00 p.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1999-CA-002888-MR
LINDA SUE TURNER ROBERTS and
MITCHELL ROBERTS
v.
APPELLANTS
APPEAL FROM WOLFE CIRCUIT COURT
HONORABLE JOHN DAVID CAUDILL, SPECIAL JUDGE
CIVIL ACTION NO. 99-CI-00063
WILLIAMS E. ROBERTS, AILEEN ROBERTS,
HARVEY VICTOR ROBERTS, MARSHA ROBERTS,
BETTY ROBERTS WILLIAMS, JESSE WILLIAMS,
FAY ROBERTS NEELY, BILLY NEELY,
GLORIA DEAN ROBERTS GAY and JAMES GAY
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, HUDDLESTON and KNOPF, Judges.
HUDDLESTON, Judge:
Linda Sue Roberts and her husband, Mitchell
Roberts, appeal a judgment of indivisibility and an order of sale
of approximately sixty-seven acres of land.
On June 8, 1999, Williams E. Roberts and his wife, Aileen
Roberts, Harvey Victor Roberts and his wife, Marsha Roberts, Betty
Roberts Williams and her husband, Jesse Williams, Fay Roberts Neely
and her husband, Billy Neely, and Gloria Dean Roberts Gay and her
husband, James Gay, filed a partition action1 against Linda and
Mitchell Roberts.
On July 7, 1999, Linda and Mitchell filed a
response and counterclaim, acknowledging the joint ownership and
description of the property but requesting that the property be
divided in accordance with Kentucky Revised Statute (KRS) 381.135.
On July 29, 1999, Linda and Mitchell filed a motion requesting the
court to find the property divisible and requested the appointment
of commissioners to examine the property and file a report with the
court.
Linda and Mitchell also sought a hearing to present
evidence regarding the issue of divisibility.
On July 30, 1999, the appellees filed a motion requesting
an order of sale, asserting that division would be “virtually
impossible” due to the diverse nature of the land.
On September 9,
1999, the court entered an order selecting three commissioners for
the purpose of viewing the property and reporting to the court on
the issue of divisibility.
On September 23, 1999, a letter from
the commissioners was filed with the court in which they stated
that they believed “that the value of the whole could be greater
than or less than the value of the parts.”
The commissioners also
reported “that the property could not be divided without materially
affecting the value of the whole.”
On the same day, the parties
were notified that written objections to the commissioners’ report
should be filed within ten days.
On September 29, 1999, the appellees filed another motion
seeking order of sale.
On October 6, 1999, Linda and Mitchell
filed a response objecting to the entry of an order of sale and to
1
See Ky. Rev. Stat. (KRS) 389A.030.
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the commissioner’s finding that the property was indivisible.
On
October 21, 1999, the appellees requested the court adopt the
commissioner’s findings and order the property sold.
On November 1, 1999, the court adopted the commissioner’s
findings and found the property to be indivisible.
The court
ordered the property sold by the court’s master commissioner.
Four issues are raised on appeal: first, whether the
court erred in finding that the property is indivisible; second,
whether
the
commissioners
court
in
erred
by
relying
on
finding
the
property
is
the
report
indivisible;
of
the
third,
whether the court erred in failing to set aside the commissioner’s
report due to allegations that one of the commissioners had a
conflict of interest; and fourth, whether the court erred in
failing to appoint an alternate commissioner.
When the divisibility of property is at issue, the courts
are guided by Kentucky Revised Statute (KRS) 389A.030.
statute, such cases are conducted as bench trials.2
Under this
Further, under
KRS 389A.030(3),
indivisibility of the real
estate shall be presumed
unless an issue in respect thereto is raised by the
pleading of any party, and if the court is satisfied from
the evidence that the property is divisible, without
materially impairing the value of any interest therein,
2
See KRS 389A.030(1).
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division
thereof
pursuant
to
KRS
381.135
shall
be
ordered.
The court’s first consideration is how to apply the
presumption.
This consideration is governed by operation of
Kentucky Rule of Evidence (KRE) 301, which provides as follows:
In all civil actions and proceedings when not otherwise
provided for by statute or by these rules, a presumption
imposes on the party against whom it is directed the
burden of going forward with evidence to rebut or meet
the presumption, but does not shift to such party the
burden
of
proof
in
the
sense
of
the
risk
of
nonpersuasion, which remains throughout the trial upon
the party on whom it was originally cast.3
Therefore, the court is to determine from the text of the statute
whether KRE 301 will be invoked or whether the statute requires a
burden shifting.
We are guided in this analysis by a recent decision of
the Supreme Court, Magic Coal Co. v. Fox.4
In Magic Coal, the
Court held that KRS 342.315(2) was properly governed by KRE 301.
In doing so, the Court stated that KRS 342.315(2) “[did] not
provide a standard for determining the type of evidence which is
necessary in order to do so and does not explicitly shift the risk
3
Emphasis supplied.
4
Ky., 19 S.W.3d 88 (2000).
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of nonpersuasion to the opponent of the evidence.”5
In Magic Coal
the pertinent language in analyzing the presumption is found in KRS
342.315(2) which states that, “[t]he clinical findings and opinions
of the designated evaluator shall be afforded presumptive weight by
arbitrators
and
administrative
law
judges
and
the
burden
to
overcome such findings and opinions shall fall on the opponent of
that evidence.”6
The Supreme Court held that the presumption
language of KRS 342.315(2) was governed by KRE 301.
The language of KRS 389A.030(3) does not explicitly shift
the
risk
of
nonpersuasion
to
the
opponent
of
the
evidence.
Therefore, we conclude the presumption language in KRS 389A.030(3)
is also governed by KRE 301.
KRE
301
“addresses
only
one
aspect
of
the
law
of
presumptions, namely, the issue of whether or not the opponent of
a presumption will be required to bear the risk of nonpersuasion
. . . as to the presumed fact.”7
KRE 301 “supplements rather than
replaces the case law on presumptions . . . .”8
Prior to the
adoption of KRE 301, Kentucky’s highest court adopted Rule 704 of
the Model Code of Evidence, paraphrasing as follows:
1.
When the basic fact giving rise to the presumption
has been established, the presumed fact stands as a
matter
of
law
5
and
until
evidence
has
been
Id. at 95.
6
unless
Emphasis supplied.
7
Robert G. Lawson, The Kentucky Evidence Law Handbook §
10.05, at p. 547 (3d ed. 1993).
8
Id. at 546.
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introduced which would support9 a contrary finding (or
a basic fact giving rise to a contrary presumption has
been established).
2.
When the basic fact giving rise to the presumption
has been established, but evidence has been introduced
which would support10 a contrary finding (or a basic fact
giving
rise
to
a
contrary
presumption
has
been
established), then the existence or non-existence of the
presumed fact is to be determined exactly as if no
presumption had ever been applicable.11
In the case under consideration, the appellees enjoyed
the benefit of the presumption created by KRS 389A.030(3).
The
basic facts giving rise to the presumption were stated in the
original complaint: specifically, that two or more people shared
title in the property in such a manner that a conveyance by them
would pass a fee simple title and that any one or more of them
brought an action for the sale of the land in the circuit court of
the county in which
the land lies.12
Therefore, we are to
determine whether the court could have found that Linda and
Mitchell met the burden of going forward with evidence to rebut
the presumption.
9
10
Since Linda and Mitchell put on no evidence to
Emphasis in original.
Emphasis in original.
11
Commonwealth Life Insurance Co. v. Hall, Ky., 517 S.W.2d
488, 493 (1974).
12
See KRS 389A.030(1).
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rebut the presumption, we conclude that it was not error for the
court to find indivisibility of the real estate.
Linda and Mitchell argue that they are only required,
under the language of the statute, to raise an issue as to the
indivisibility of the real estate in the pleading (their answer)
to rebut the presumption.
read
the
entire
However, Linda and Mitchell fail to
statute.
The
statute
states
that
if
the
presumption is rebutted in this manner, the court is to be
“satisfied from the evidence that the property is divisible . . .
.”13
Here, no evidence was presented supporting the argument that
the land was divisible.
the
presumption
had
However, the basic facts giving rise to
been
established.
Therefore,
since
no
evidence supporting divisibility was presented, “the presumed fact
stands as a matter of law.”14
Having
concluded
that
the
court’s
finding
of
indivisibility was not error, we need not consider whether the
court erred in relying on the report of the commissioners in
finding the property was indivisible.
This was a mere surplusage.
However, we caution that we find no basis in the statute for this
practice.
The
use
of
commissioners
is
mandated
under
KRS
389A.030(3) only if the court is satisfied that the property is
divisible.
We conclude that the remaining issues, concerning an
allegation
that
one
of
the
commissioners
had
a
conflict
13
KRS 389A.030(3).
14
Commonwealth Life Insurance Co., supra, n. 11, at 493.
(Emphasis supplied.)
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of
interest, are harmless error for the same reason and thus must be
disregarded.15
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES:
B. Scott Graham
Stanton, Kentucky
Billy L. Oliver
Campton, Kentucky
15
Ky. R. Civ. Proc. (CR) 61.01.
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