GOODIN (VIRGIL LEE) VS. SMITH (ROY), ET AL.

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RENDERED: DECEMBER 4, 2009; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2007-CA-000643-MR VIRGIL LEE GOODIN v. APPELLANT APPEAL FROM KNOX CIRCUIT COURT HONORABLE GREGORY A. LAY, JUDGE ACTION NO. 99-CI-00161 ROY SMITH, SHANNON SMITH, ARTHUR BRIGHT, WILMA J. BRIGHT, AND PACIFIC WEST GROUP, INC. APPELLEES OPINION AFFIRMING ** ** ** ** ** BEFORE: CAPERTON, KELLER AND NICKELL, JUDGES. NICKELL, JUDGE: Virgil Lee Goodin (Goodin) appeals from the January 16, 2007, judgment of the Knox County Circuit Court awarding an easement by necessity1 over an existing farm road along the east boundary of his property to 1 Generally, easements may be created by express written grant, implication, prescription or estoppel. Loid v. Kell, 844 S.W.2d 428 (Ky. App. 1992). Easements by implication fall into two categories: (1) quasi-easement and (2) easement by necessity. See generally Restatement (Third) of the Law of Property §§ 2.11-2.15 (1998). Easements by necessity are borne out of the service a parcel previously owned by Roy Smith and his wife, Shannon Smith (Smith) which would otherwise be landlocked. During the course of the litigation, Smith lost title to the subject property in a separate foreclosure action. The easement was ultimately granted in favor of Pacific West Group, Inc. (Pacific), Smith’s immediate successor in title. After a careful review of the record, we affirm. Facts In the early 1900’s, the Goodin and Pacific tracts were part of a 200acre estate originally amassed by J.R. Goodin which was located along the Goodin Branch of Fighting Creek in Knox County. Following his death, the lands of J.R. Goodin were divided among his six children. In January 1935, a fifty-four acre tract which included the lands now owned by Pacific was carved from the original 200-acre tract. Because the severed tract did not abut a public road, the description in the deed also included a sixteen foot wide strip of land following the line of an existing farm road for the benefit of the grantee, Allie Heston. Although the remaining land had public road access, the grantors also reserved for themselves the right to use the road. The property was subsequently further divided so that the reserved road crossed two separate parcels owned by different individuals prior to terminating on Pacific’s land. Now, the use of the road is in dispute. public policy in favor of the beneficial use of land as opposed to rendering a parcel useless and necessity of access is the primary factor to be considered in finding the existence of a way by necessity. Carroll v. Meredith, 59 S.W.3d 484, 489-90 (Ky. App. 2001). -2- On October 17, 1997, Smith acquired a parcel of property from Arthur and Wilma Bright (Bright) which had previously been carved out of the Allie Heston tract. Intending to build a retirement home on the land, Smith graded and graveled the existing farm road partially located on Goodin’s property2 to facilitate their construction contractor’s access to their property. Although Bright had used the road for occasional access to the property, the contractor’s use of the road was the first regular use since Isaacson’s brief stay on her adjoining tract in 19883 and the first consistent use since the 1950’s. Although the original conveyance from Bright to Smith made no mention of the roadway, a subsequently executed and filed deed of correction included a complete property description and specifically referenced the right to use the roadway. On April 7, 1999, Smith filed the instant complaint, alleging Goodin blocked the farm road leading to their future home with a disabled vehicle. Smith claimed Goodin’s actions violated their express right to use the roadway. Smith also sued Bright, alleging that if Goodin prevailed and was found to have lawfully excluded Smith from the roadway, Bright should be found liable for Smith’s damages based on a breach of the warranty of title. Goodin filed a counterclaim 2 The farm road originates at Goodin Branch Road and runs approximately 500 feet along Goodin’s eastern boundary line until it meets the property line of an adjoining tract owned by Linda Isaacson, originally a part of the Allie Heston tract. The roadway then continues across the Isaacson tract, ultimately terminating on the Pacific tract. The use of the road across the Isaacson tract is not in dispute. The Pacific tract has no other means of ingress or egress apart from this road. 3 Isaacson placed a mobile home on her property sometime in 1988 and used the roadway across Goodin’s property to access her home. For reasons unclear from the record, the mobile home was destroyed a short time later and Isaacson did not return to live on the property. -3- for trespass and damage to his property resulting from the construction of the gravel road as well as a crossclaim to quiet title to the roadway. A lengthy period of discovery followed. Nearly four years after the original complaint was filed, on March 26, 2003, the trial court ordered the parties to submit proof of whether an easement burdened Goodin’s property. The order limited the issue to whether an express or prescriptive easement existed, but allowed other issues to be resolved by further order of the court. The parties fully briefed the matter and the issues were submitted to the trial court for a ruling. On March 6, 2004, the court entered a judgment in favor of Smith after finding an easement by necessity burdened Goodin’s estate. Goodin filed a motion to alter, amend or vacate the judgment because the court’s pretrial order did not contemplate the submission of proof on a theory of easement by necessity. On July 8, 2004, the court set aside its original judgment and ordered the parties to submit proof of “all issues” in the case within forty-five days. Goodin submitted two additional depositions, and addressed the issue of the existence of an easement by necessity in his trial brief. Subsequently, on September 6, 2005, the court adopted verbatim its prior findings of fact and conclusions of law, and again entered judgment awarding Smith an easement by necessity. Goodin filed a timely notice of appeal contesting the judgment of September 6, 2005. Before the appeal was decided, Goodin filed a motion -4- pursuant to CR4 60.02 to set aside the trial court’s judgment entered September 6, 2005, because prior to its entry, a judgment of foreclosure and order to sell the property had been entered against Smith, and the property had subsequently been transferred to Pacific by the Knox County Master Commissioner. Uncontested by Smith, the trial court granted the requested relief on August 18, 2006, and set aside its judgment of September 6, 2005. Goodin’s appeal was subsequently dismissed as moot. On September 22, 2006, Pacific moved to be substituted as a party pursuant to CR 25.03 and to reinstate the September 6, 2005, judgment pursuant to CR 60.02(f). On January 16, 2007, the trial court granted Pacific’s motion to substitute and reinstated its September 6, 2005, judgment. Thereafter, Goodin filed the instant appeal contesting the judgment of January 16, 2007. Goodin contends the trial court erred in awarding Smith an easement by necessity. First, he argues the court’s pretrial order, which limited the issue to be decided to whether a prescriptive or express easement was present, was never altered, modified or vacated, and thus, finding existence of an easement by necessity was improper and outside the scope of the proof. Second, Goodin argues the proof was insufficient to sustain a finding of an easement by necessity. Finally, Goodin maintains equity does not favor a judgment burdening his land. Pretrial Order 4 Kentucky Rules of Civil Procedure -5- Goodin first contends the trial court was bound by its pretrial scheduling order. He claims the March 26, 2003, pretrial conference order limited the issue to be decided to “[w]hether an easement exists, either prescriptive or express” and that the order was never modified or amended so as to permit proof on the existence of an easement obtained by any other means. Thus, he argues the trial court erred in finding the existence of an easement by necessity as that resolution should not have been considered. We disagree. It is well-settled that parties are bound by pretrial orders of the trial court. Commonwealth ex rel. Marcum v. Smith, 375 S.W.2d 386, 387 (Ky. 1964) (citing Sapp v. Massey, 358 S.W.2d 490 (Ky. 1962)). Trial courts have discretion to limit the issues for trial by holding a pretrial conference and entering an order memorializing the actions taken at the conference, “and such order when entered controls the subsequent course of the action, unless modified at or before the trial to prevent manifest injustice.” CR 16. Issues eliminated by a pretrial order can be reinstated only by a subsequent modification of the order. Smith, 375 S.W.2d at 387. Our review is limited to whether the trial court abused its discretion by making a finding on an issue eliminated by its earlier pretrial order. Hollon’s Ex’r v. Graham, 280 S.W.2d 544, 549 (Ky. 1955). A trial court abuses its discretion only if its decision is arbitrary, unfair, unreasonable or unsupported by legal principles. Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d. 575, 581 (Ky. 2000). After a careful review of the record, we find no abuse of discretion as the order had been modified prior to entry of the trial court’s final judgment. -6- In the case sub judice, the trial court entered an order on March 26, 2003, limiting the issues to whether an express or prescriptive easement existed. However, the trial court left open the availability to resolve all other issues by further order. Without entering any additional orders regarding the issues to be decided, the trial court entered its initial judgment finding an easement by necessity on March 6, 2004. However, at the behest of Goodin, the trial court vacated that order on the grounds that its holding may have been surprising in light of the earlier pretrial order. In the order entered on July 8, 2004, the trial court re-opened the period of proof to allow the parties to take “any additional proof they wish to submit” and informed the parties that following the additional time for proof taking and argument all issues would be addressed. Clearly, the tenor of the trial court’s July 8 order indicated an intention to amend the pretrial conference order of March 26, 2003, to bring all issues before the court and to allow Goodin to attempt to rebut Smith’s argument regarding an easement by necessity. Thus, contrary to Goodin’s assertion, the pretrial order had, in fact, been altered. A review of the record reveals that nearly one-third of the supplemental brief Goodin tendered to the trial court was devoted to a discussion of whether an easement by necessity existed. Therefore, Goodin’s argument that he was unaware of the possibility that the trial court could find such an easement is without merit, and the trial court did not abuse its discretion in its ruling on the issue as it was properly before the court for consideration. -7- Sufficiency of Proof Next, Goodin contends the proof submitted to the trial court was insufficient to support a finding of the existence of an easement by necessity. He claims several deeds which were attached to Arthur Bright’s deposition constituted inadmissible hearsay and should not have been considered by the trial court as evidence. Further, he claims that without these deeds, Smith and Bright failed to prove title to their own lands, and thus failed to prove the elements of an easement by necessity. Fourteen deeds were attached to Arthur Bright’s deposition. These documents established sources of title of Smith’s and Bright’s parcels of property, common ownership of the dominant and servient estates, and severance of the unity of title to the neighboring tracts, all of which are required elements in proving the existence of an easement by necessity. See Carroll, 59 S.W.3d at 491.5 Goodin claims these deeds were inadmissible as hearsay and questions their authenticity in rebutting the public records exception to the hearsay rule. The crux of Goodin’s argument is that since only copies of attested copies of the deeds were attached to Bright’s deposition, rather than the original attested copies bearing original signatures, the deeds were neither self-authenticating nor otherwise properly authenticated, and thus the documents should have been excluded from 5 “The three prerequisites to creation of an easement or way of necessity are (1) unity of ownership of the dominant and servient estates; (2) severance of the unity of title by a conveyance of one of the tracts; and (3) necessity of the use of the servient estate at the time of the division and ownership to provide access to the dominant estate.” Carroll, 59 S.W.3d at 491. -8- consideration as evidence. Having reviewed the record, we reject Goodin’s argument. As a general rule, hearsay is not admissible. KRE6 802. However, under KRE 803(8) public records are not excluded by the hearsay rule unless the circumstances indicate a lack of trustworthiness. Furthermore, KRE 803(14) contains an exception for documents affecting an interest in real estate. Under KRE 902(4), public records do not require authenticating testimony if they are “attested by an official having the legal custody of the record.” Copies of documents are as admissible as the originals unless a genuine question as to the authenticity of the original is raised or if it would be unfair under the circumstances to admit the duplicate rather than the original. KRE 1003. See also Hawkins v. Commonwealth, 481 S.W.2d 259 (Ky. 1972) (decision under analogous former law, KRS 422.105, superseded by adoption of KRE 1003). Trial courts are invested with considerable discretion to determine whether evidence is admissible and how such evidence is to be presented. Davis v. Fischer Single Family Homes, Ltd., 231 S.W.3d 767, 778 (Ky. App. 2007). We review a trial court’s evidentiary rulings for an abuse of discretion. Thompson, 11 S.W.3d. at 577. Absent such an abuse, a trial court’s decision shall not be overturned on appeal. Id. Here, the trial court considered and rejected Goodin’s arguments, finding the deeds fell under the public records exception to the rule against hearsay. The trial court acknowledged the general rule against hearsay and the 6 Kentucky Rules of Evidence. -9- exception to the rule for public records and instruments affecting an interest in property, but correctly noted the inquiry did not end there stating “[a]ny such document must still be properly authenticated.” There is no question that the documents in question are deeds and thus affect an interest in property. There is also no question that these deeds were photocopies of the attested copies obtained from the Knox County Court Clerk’s Office, the office having legal custody of the original documents. The deeds in issue bear the attestation of the Knox County Clerk certifying them to be true and exact copies of the documents appearing of record in his office. This language clearly satisfies the requirements of KRE 902(4) for self-authenticating documents. Therefore, because these deeds constitute public records and also affect an interest in property, if the original attested copies had been attached to Bright’s deposition, they would clearly fall under an exception to the hearsay rule, whether pursuant to KRE 803(8) or (14), and would be admissible. Thus, the real question before this Court is whether the trial court erred in finding a duplicate of a properly attested copy is satisfactory to meet the self-authentication requirements of KRE 902(4). We hold there was no error. As previously stated, KRE 1003 allows for duplicates of documents to be “admissible to the same extent as an original unless” the authenticity of the original is genuinely questioned or fairness would require admission of the original rather than the duplicate. We agree with the trial court that although Goodin -10- makes a good faith argument in opposition to the admission of these deeds, it is quite clear that there is no genuine question as to the authenticity of these deeds, nor can the Court say that it would be unfair to admit the duplicate in lieu of the original. This is especially true in light of the fact that the original attested copies—which exactly matched the copies attached to Bright’s deposition—were attached to Smith’s response to Goodin’s motion to strike. Thus, there can be no serious argument that the duplicates were not authentic reproductions of the originals. Further, Goodin has failed to show any unfairness in the admission of the copies. Therefore, KRE 1003 clearly controls the admissibility of the deeds and the trial court was well within its considerable discretion to allow their admission. Our holding on the admissibility of the deeds obviates the need for further discussion of Goodin’s argument that Smith and Bright failed to prove title to their own property, as that argument is now moot. We also need only briefly comment on Goodin’s contention that Smith and Bright failed to prove the three elements of an easement by necessity. The deeds attached to Bright’s deposition clearly indicate the properties involved in the instant dispute were originally part of the lands of J.R. Goodin, thus proving unity of ownership. Equally as obvious is the severance of that unity by the 1935 conveyance of the fifty-four acre tract which includes the lands now owned by Pacific. Finally, the evidence revealed that Pacific’s tract has no direct access to a public road. Without an easement across Goodin’s and Isaccson’s properties and the accompanying use of the existing farm road, Pacific’s -11- tract would be landlocked. This need for access was created at the time of the division of the J.R. Goodin tract and has remained so since that time. Thus, as the trial court correctly found, all of the elements for the creation of an easement by necessity as set forth in Carroll were proven. There was no error. Equitible Considerations Finally, Goodin argues that equity does not favor a judgment in favor of the Smiths. He claims the Smiths unilaterally caused the problem and “proceeded rough shod (sic) over Goodin and his land.” He contends these actions negate the “necessity” of an easement, as does the failure of any person— excepting himself—to utilize the “farm road” for an extended period of time. “An easement by necessity is based primarily on the policy favoring beneficial use of property. Carroll, 59 S.W.3d at 491 (citing Warfield v. Basich, 161 Cal.App.2d 493, 498, 326 P.2d 942 (1958)). Unlike a quasi-easement involving prior use, an easement by necessity exists in favor of the dominant estate whether it is used or not, so long as it is necessary for access. Id.” Gosney v. Glenn, 163 S.W.3d 894, 900 (Ky. App. 2005). As the Pacific tract would be landlocked but for the ability to use the road at issue herein, the easement across Goodin’s property is a necessity, and thus equity favored a finding of the existence of an easement. The court correctly so found and Goodin’s argument to the contrary is without merit. Therefore, for the foregoing reasons, the judgment of the Knox Circuit Court is affirmed. -12- ALL CONCUR. BRIEF FOR APPELLANT: Darrell L. Saunders Corbin, Kentucky BRIEF FOR APPELLEES, ARTHUR BRIGHT AND WILMA J. BRIGHT: Clayton O. Oswald J. Warren Keller London, Kentucky BRIEF FOR APPELLEE, PACIFIC WEST GROUP, INC.: Mary-Ann Smyth Corbin, Kentucky BRIEF FOR APPELLEES, ROY SMITH AND SHANNON SMITH: No brief filed. -13-

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