DAVID J. CHANEY AND ELAINE K. CHANEY v. PHILIP D. WILSON; MICHAELYNN A. WILSON; RICHARD HARTMAN; AND DONNA HARTMAN
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RENDERED: JULY 13, 2007; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2005-CA-002599-MR
DAVID J. CHANEY AND
ELAINE K. CHANEY
v.
APPELLANTS
APPEAL FROM MASON CIRCUIT COURT
HONORABLE WILLIAM J. WEHR, SPECIAL JUDGE
ACTION NO. 02-CI-00357
PHILIP D. WILSON; MICHAELYNN
A. WILSON; RICHARD HARTMAN;
AND DONNA HARTMAN
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE AND HOWARD, JUDGES; BUCKINGHAM,1 SENIOR JUDGE.
HOWARD, JUDGE: This appeal is from a summary judgment dismissing the complaint
of David J. Chaney and Elaine K. Chaney which sought the establishment of the
boundary line of their property and damages for alleged trespass, wrongful cutting of
timber and the removal of lateral and subjacent support. We affirm.
1
Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
Philip D. Wilson and Michaelynn A. Wilson are the former owners of
property adjacent to the Chaneys' property in Maysville, Kentucky. The Chaneys live at
the bottom of a steep hill, near the banks of the Ohio River. The Wilsons lived at the top
of the hill, overlooking the river. Subsequent to the alleged actions that form the basis of
this litigation, the Wilsons conveyed their property to Richard Hartman and Donna
Hartman.
The Chaneys alleged in their complaint, as amended, that in December of
1997 the Wilsons caused timber to be cut and removed from the Chaneys' property and
that such actions caused the removal of lateral and subjacent support, either causing or
aggravating a landslide that damaged their property.
On April 14, 2005, the trial judge, the Honorable William J. Wehr, Special
Judge, met with the parties' attorneys and surveyors at the site of property in dispute. He
viewed the property in question and discussed with counsel for both parties an
appropriate procedure to resolve the case. The two surveyors agreed that they could
work together and jointly provide the court with an agreed legal description resolving the
boundary line dispute. The parties, through their attorneys, agreed to this procedure. The
surveyors' joint report was filed on August 1, 2005. The boundary line determined by the
two surveyors was consistent with the Wilsons' claimed boundary line, and resulted in the
conclusion that any trees that had been cut were in fact on the Wilsons' property.
By order entered on August 31, 2005, at a scheduled hearing at which the
Chaneys were present, the trial court accepted the surveyors' joint report and directed that
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the Wilsons' previously filed motion to dismiss be treated as a motion for summary
judgment because matters outside the pleadings were to be considered. See
Commonwealth, Fayette County ex rel. Geary v. Kentucky Cent. Life Ins. Co., 746
S.W.2d 565, 566 (Ky.App. 1987). At that hearing the trial court also granted a motion to
withdraw by the Chaneys' attorney, to which the Chaneys agreed. The trial court
established a briefing schedule on the motion for summary judgment. Although the
Chaneys were provided extensions of time in which to obtain substitute counsel, they did
not do so and have proceeded pro se for the balance of the trial court proceedings and on
this appeal. The trial court also granted the Chaneys additional time, through November
5, 2005, to file evidence supporting their contentions.
On November 14, 2005, the trial court entered its final order, incorporating
by reference the surveyors' agreed description as the disputed boundary line and granting
the Wilsons' motion for summary judgment. Regarding the Chaneys' claim that some
400 trees had been cut, the trial court found,
That the physical evidence on the site did not
equate with the claims of the Plaintiffs, and, based upon the
boundary line as agreed and established by the parties two
independent surveyors, any minimal cutting of trees occurred
on the defendant's side of the established boundary line,
effectively negating any claims of improper 'cutting of timber'
as alleged in the Complaint.
The trial court also took judicial notice of a separate legal proceeding filed
by the Chaneys against their insurance company in which they also alleged that their
home was damaged by a landslide, but claimed that it was caused by heavy rains and
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occurred in March of 1997, some nine months before the alleged actions of the Wilsons.
The court noted that the Chaneys had received a settlement of $200,000 from their
insurer for damages to their property from this landslide. The trial court dismissed the
Chaneys' complaint, and this appeal followed.
On appeal, the Chaneys raise only one argument, that they did not authorize
their attorney to agree to the surveyors' collaborating on the legal description of the
disputed boundary line. There are two reasons why this argument cannot prevail. First
of all, while an attorney cannot substantively settle a case without his client's express
authority, a party is bound by the procedural agreements and stipulations of his or her
attorney, in the conduct of the litigation for which that attorney was hired. DeLong v.
Owsley's Ex'x, 308 Ky. 128, 213 S.W.2d 806 (1948). We believe the agreement entered
into by the court and counsel in this case, to have the surveyors conduct a joint survey,
was such a procedural agreement, within the attorney's authority.
More important, this issue was not preserved for appellate review. The
Chaneys never asserted in the trial court that their attorney lacked the authority to make
such an agreement.2 This claim is raised for the first time in this Court. An issue not
timely presented to the trial court may not be considered for the first time on appeal.
Lawrence v. Risen, 598 S.W.2d 474, 476 (Ky.App. 1980).
2
We note that the Chaneys filed in the record a letter to their former surveyor in which Mrs.
Chaney wrote that the surveyor agreed with the appellee's surveyor without consulting them.
However, the trial court record contains no allegation that the Chaneys' attorney entered into any
agreement without his clients' authority.
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We also note that the Chaneys did not include this issue in their prehearing
statement as one proposed to be raised on this appeal. Civil Rule 76.03(8) states that "[a]
party shall be limited on appeal to issues in the prehearing statement except that when
good cause is shown the appellate court may permit additional issues to be submitted
upon timely motion." See Osborne v. Payne, 31 S.W.3d 911, 916 (Ky. 2000). As the
Chaneys failed to preserve this issue for appeal, we cannot here consider the merits of the
issue.
The circuit court judgment is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
David J. Chaney, pro se
Elaine K. Chaney, pro se
Maysville, Kentucky
Jeffrey L. Schumacher
Maysville, Kentucky
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