HOWARD BILLITER AND MABEL BILLITER v. THE ESTATE OF DOROTHY HOLBROOK
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RENDERED:
FEBRUARY 11, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2003-CA-002075-MR
HOWARD BILLITER
AND MABEL BILLITER
v.
APPELLANTS
APPEAL FROM MAGOFFIN CIRCUIT COURT
HONORABLE JOHN ROBERT MORGAN, JUDGE
ACTION NO. 98-CI-00244
THE ESTATE OF
DOROTHY HOLBROOK
APPELLEE
OPINION
AFFIRMING IN PART,
REVERSING IN PART,
AND REMANDING
** ** ** ** **
BEFORE:
DYCHE, KNOPF, AND TACKETT, JUDGES.
KNOPF, JUDGE: Howard and Mabel Billiter appeal from a judgment by
the Magoffin Circuit Court awarding damages for permanent and
temporary trespass to the estate of Dorothy Holbrook.
Although
we find no error on most of the points raised by the Billiters,
we agree that the trial court erred in its calculation of damages
for permanent and temporary trespass.
Hence, we affirm in part,
reverse in part, and remand for entry of a new judgment.
Holbrook and the Billiters own adjacent tracts of real
property in Salyersville, Magoffin County, Kentucky.
On October
14, 1998, Holbrook filed a complaint seeking to quiet the
Billiters’ title.
Based on a survey conducted by Randall Ousley,
Holbrook alleged that a commercial building constructed by the
Billiters partially encroached onto her property.
She further
alleged that the Billiters had placed two mobile homes either
wholly or partially on other portions of her property.
In her
complaint and subsequent amended complaint, Holbrook sought
injunctive relief directing the Billiters to remove the
encroachments.
Dorothy Holbrook died on May 25, 2000, and her estate
was substituted as a party.
In early 2001, Holbrook submitted
the matter to the trial court for a determination of the location
of the boundary.
The Billiters presented no evidence.
In a
judgment entered on June 27, 2001, the trial court found that the
Ousley survey accurately reflects the boundary between the
Billiters’ and Holbrook’s tracts.
The court directed that the
Billiters remove the encroaching mobile homes immediately.
However, the court also found that the commercial building
permanently encroaches on Holbrook’s property and cannot be
2
removed.
The court reserved a determination of damages for later
adjudication.
Discovery on the issue of damages continued
sporadically for some time thereafter.
On September 16, 2002,
the trial court entered a judgment to Holbrook for damages in the
amount of $53,100.00.
However, the trial court subsequently set
aside that judgment following a motion by the Billiters.
Eventually, both parties submitted expert proof of damages to the
trial court.
On September 4, 2003, the trial court entered a
judgment in favor of Holbrook for damages totaling $43,300.00.
This amount reflected damages for permanent trespass of
$20,500.00 and for temporary trespass totaling $22,800.00.
The
Billiters now appeal from this judgment.
The Billiters first argue that Holbrook’s action was
barred by the fifteen-year statute of limitations set out in KRS
413.010 and by adverse possession.
In its order entered
September 4, 2003, the trial court found that the Billiters had
maintained two mobile homes on Holbrook’s property for at least
eighteen years.
But as noted above, Holbrook filed her complaint
on October 14, 1998.
The statute of limitations was tolled as of
that time and any period of adverse possession was broken well
before the fifteen-year period had elapsed.
The Billiters concede this point in their reply brief,
but assert that there was no evidence offered to the trial court
3
concerning when the limitations period began to run.
However, as
the party seeking title through adverse possession, the Billiters
had the burden of proving every element of the claim.1
Likewise,
the statute of limitations is an affirmative defense which the
Billiters also bore the burden of proving.2
Because the
Billiters presented no evidence supporting their adversepossession claim or their statute-of-limitations defense,
Holbrook’s claim was not barred.
The Billiters next argue that the trial court erred by
failing to submit the issue of damages to a jury.
They further
assert that the trial court erred by awarding damages to Holbrook
for trespass even though she never sought monetary damages in her
complaint.
Both of these arguments are patently without merit.
The record reflects that on August 21, 2003, the trial court
entered an agreed order submitting the issue of damages.
request for a jury trial appears in the record.
No
Likewise, the
agreed order establishes that the issue of damages was tried by
the express or implied consent of the parties.
In light of the
agreed order and in the absence of any timely objection by the
1
Phillips v. Akers, 103 S.W.3d 705, 709 (Ky.App. 2002).
2
CR 8.03. See also Lynn Mining Co. v. Kelley, 394 S.W.2d 755,
759 (Ky. 1965).
4
Billiters, the trial court properly amended the complaint to
conform to the evidence.3
Finally, the Billiters contend that the trial court
applied the wrong standard for determining damages for temporary
and permanent trespass and the damages awarded to Holbrook were
excessive.
After reviewing the record, however, we find that the
Billiters never objected to the measure of damages used by the
trial court.
Consequently, we must conclude that the Billiters
have waived any objection to the trial court’s method of
calculating damages.
Furthermore, we cannot find that the trial court’s
method of calculating damages was clearly erroneous.
4
However,
we agree with the Billiters that the trial court’s calculation of
the amount of damages for permanent trespass was clearly
erroneous.
The trial court based damages on the fair market
value of the portion of Holbrook’s land occupied by the
3
CR 15.02. See also Nucor v. General Electric Co., 812 S.W.2d
136, 145 (Ky. 1991).
4
The Billiters assert that the correct measure of damages for
permanent trespass is the difference in fair market value of the
real estate just before and after the injury. Island Creek Coal
Co. v. Rodgers, 644 S.W.2d 339, 345 (Ky.App. 1982). While the
trial court’s method of calculating damages might not have
mirrored this standard precisely, the Billiters do not argue that
the measure of damages applied by the trial court was
unreasonable under the circumstances. Moreover, as noted below,
the Billiters’s expert applied the same standard as the trial
court in reaching his estimate of the amount of damages.
5
Billiters’ commercial building.
Holbrook’s appraiser, Dixon
Nunnery, found the fair market value of the property to be $3.00
per square foot, or $20,500.00 for the entire area.
The
Billiters’ appraiser, Paul Brown, found the fair market value to
be $1.90 per square foot or $4,700.00 for the entire area.
But Nunnery and Brown did not place a value on the same
amount of land.
Nunnery determined the fair market value of a
strip of land 16.5 feet wide by 415 feet long – essentially
extending the Billiters’ tract into Holbrook’s tract by 16.5 feet
along its entire length.5
In contrast, Brown based his valuation
on a strip of land measuring 16.5 feet wide by 150 feet long –
the length of only the front tract on which the Billiters’
commercial building encroaches.6
Thus, Nunnery’s valuation
includes some 4,372 square feet more than Brown’s.
We conclude that the trial court’s inclusion of this
additional area was clearly erroneous.
The court separately
compensated Holbrook for the temporary trespass on the back lot.
By also awarding damages for permanent trespass along the entire
length of both lots, the court compensated Holbrook twice for the
same injury.
5
16.5 feet x 415 feet = 6,847 square feet x $3.00 per sq. ft =
$20,542.50.
6
16.5 feet x 150 feet = 2,475 square feet x $1.90 per sq. ft. =
$4,702.50.
6
The trial court accepted Nunnery’s valuation of $3.00
per square foot, which we cannot find to be clearly erroneous.
Based on this value, the correct amount of damages for permanent
trespass to the front lot was $7,425.00.7
On remand, the trial
court must enter a new judgment in this amount.
As for damages for temporary trespass, both Nunnery and
Brown calculated damages based on the monthly fair rental value
of the 1½ mobile home lots which encroached onto Holbrook’s
property.
Nunnery, however, stated that the fair rental value on
the lots was $100.00 per month, while Brown set the fair rental
value at $50.00 month at the beginning of the encroachment and
$70.00 per month at current.
Although Brown’s calculation of the
fair rental value is more detailed and seems better supported, we
cannot say that the trial court clearly erred by accepting
Nunnery’s valuation.8
Nevertheless, we agree with the Billiters that the
trial court’s calculation of damages for temporary trespass was
flawed in one respect.
Both Brown and Nunnery calculated damages
based on a period of temporary trespass lasting eighteen years.
After accepting Nunnery’s conclusions about the reasonable rental
value of the mobile home lots, the trial court added an
7
16.5 feet x 150 feet = 2,475 square feet x $3.00 per sq. ft. =
$7,425.00.
8
CR 52.01.
7
additional year, representing the time between Nunnery’s
deposition and the court’s final judgment.
However, in its June,
2001 order, the trial court had directed the Billiters to remove
the mobile homes.
Furthermore, Holbrook testified in her
deposition that the Billiters removed one of the mobile homes
shortly after that order was entered.
Therefore, while the
evidence of record might support an award of damages for
temporary trespass of slightly less than eighteen years, it did
not support an award of damages for more than eighteen years. On
remand, the trial court shall enter a new judgment for these
damages in the amount of $21,600.00.9
Accordingly, the September 4, 2003 judgment of the
Magoffin Circuit Court is affirmed in part, reversed in part, and
remanded for entry of a new judgment as set forth in this
opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Earl Martin McGuire
Clyde Combs, Jr.
Prestonsburg, Kentucky
John C. Collins
Collins & Allen
Salyersville, Kentucky
9
$100.00 x (18 x 12 =) 216 = $21,600.00.
8
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