HAYES (DAVID WESLEY) VS. CLEMONS (ERNIE), ET AL.
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RENDERED: NOVEMBER 5, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000787-MR
DAVID WESLEY HAYES
v.
APPELLANT
APPEAL FROM KNOTT CIRCUIT COURT
HONORABLE KIM C. CHILDERS, JUDGE
ACTION NO. 07-CI-00158
ERNIE CLEMONS AND
SHIRLEY CLEMONS
APPELLEES
OPINION
AFFIRMING
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BEFORE: CAPERTON, THOMPSON AND VANMETER, JUDGES.
THOMPSON, JUDGE: David Wesley Hayes filed a complaint seeking to have the
Knott Circuit Court determine the boundary line between his property and that
owned by Ernie and Shirley Clemons. On appeal, he alleges that the trial court
relied on deeds placed in the file but not entered as exhibits. We conclude that
even if the trial court improperly considered the deeds as evidence, there was
substantial evidence properly submitted to support the trial court’s findings and
affirm.
Our standard of review is set forth in Phillips v. Akers, 103 S.W.3d
705, 709 (Ky.App. 2002), where the court recited:
With respect to property title issues, the appropriate
standard of review is whether or not the trial court was
clearly erroneous or abused its discretion, and the
appellate court should not substitute its opinion for that
of the trial court absent clear error. Church and Mullins
Corp. v. Bethlehem Minerals Co., Ky., 887 S.W.2d 321,
323 (1992), cert. denied, 514 U.S. 1110, 115 S.Ct. 1962,
131 L.Ed.2d 853 (1995). Furthermore, in an action tried
without a jury, the factual findings of the trial court shall
not be set aside unless they are clearly erroneous, that is
not supported by substantial evidence. Cole v. Gilvin,
Ky.App., 59 S.W.3d 468, 472 (2001); CR 52.01.
The trial court relied on the testimony of a qualified surveyor and
other properly admitted evidence to support its findings. Thus, even if Hayes’s
assertion is correct, any error was harmless.
The Clemonses assert that although the trial court correctly
established the boundary line, it erred when it found that Hayes was entitled to an
easement to use the roadway in dispute. However, because the Clemonses did not
file a cross-appeal, their assertion cannot be reviewed. Fryar v. Stovall, 504
S.W.2d 701 (Ky. 1973).
Based on the foregoing, the judgment of the Knott Circuit Court is
affirmed.
VANMETER, JUDGE, CONCURS.
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CAPERTON, JUDGE, DISSENTS AND FILES SEPARATE
OPINION.
CAPERTON, JUDGE, DISSENTING: I dissent from the majority
because the trial court has interpreted the language of a deed not admitted to the
record as an evidentiary exhibit. The majority opines that expert testimony
concerning the language contained in a deed is sufficient for factual findings
without entry of the deed itself as an evidentiary exhibit.
We must remember the role of experts is set forth in Kentucky Rules
of Evidence (KRE) 702. Experts, duly qualified in their area of expertise, are
relegated to giving testimony on scientific or technical evidence or in areas where
they possess specialized knowledge. I disagree that an expert’s testimony
concerning the plain language in a deed, particularly “to the edge of [an] oil well
road”, provides a proper evidentiary basis for a trial court’s finding when the legal
interpretation of the language of the deed is at issue. Certainly an expert may be
needed to conduct a survey and interpret the technical aspects of a deed, but I
opine that the plain language of a deed does not require expert interpretation.
I direct attention to the portion of Appellee’s brief which cites to
Hensley v. Lewis, 278 Ky. 510, 128 S.W.2d 917 (1939), and Delph v. Daly, 444
S.W.2d 738 (Ky. 1969), for the proposition that if a boundary line runs with a
roadway then the boundary line is located in the center of the roadway absent
language to the contrary. It appears that this law was necessarily applied by the
trial court in interpreting the language of the alleged deed at issue, and this
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certainly is a legal interpretation applied by a court to the language in a deed
which, in the case sub judice, was not an evidentiary exhibit.
While true that KRE 703(a) allows an expert to rely on facts or data
not admitted into evidence in forming an expert opinion, the opinion of the expert
must still be scientific or technical in nature, or the expert must have other
specialized knowledge that assists the trier of fact to understand the evidence or
determine a fact in issue. I doubt there is little need to have experts read the
language of a deed to the court for the purpose of the court interpreting the
language. I submit that our trial courts have the necessary education and legal
background to read the deed themselves.
I would hold that the trial court’s factual findings and conclusions
based upon the testimony of experts as to the effect of the language of the deed
was error because the interpretation of a deed is a matter of law for the court and
where no deed is before the court then no interpretation can be made. Melton v.
Melton, 221 S.W.3d 391, 392 (Ky.App. 2007). Therefore, I would reverse and
remand for further proceedings.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Bobby D. Williams
Hindman, Kentucky
James Bates
Hindman, Kentucky
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