PENA (STEVEN), ET AL. VS. SWICEGOOD (JOHN), ET AL.
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RENDERED: OCTOBER 29, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001459-MR
STEVEN PENA AND JOANN PENA
v.
APPELLANTS
APPEAL FROM SCOTT CIRCUIT COURT
HONORABLE PAUL F. ISAACS, JUDGE
ACTION NO. 05-CI-00231
JOHN SWICEGOOD, SHANNON
SWICEGOOD, SHANNON HAYES,
AND TONYA HAYES
APPELLEES
OPINION
AFFIRMING
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BEFORE: COMBS AND CAPERTON , JUDGES; LAMBERT,1 SENIOR
JUDGE.
COMBS, JUDGE: Steven Pena and Joann Pena appeal from a judgment of the
Scott Circuit Court involving a dispute over an easement that adjoins the property
of the appellees, John and Shannon Swicegood and Shannon and Tonya Hayes.
The easement is fifty-feet wide and encompasses Blue Ash Trail, a narrow gravel
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Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
path providing each of the parties with access to Galloway Pike in Stamping
Ground. After our review of the record and the arguments of counsel, we affirm.
The easement at issue in this appeal was initially established in a written
“Declaration of Easements and Restrictions” recorded in the Scott County Clerk’s
office in October 1996. At that time, James W. Singer, Jr., and Ann M. Singer
owned fourteen numbered lots in a development known as Blue Ash Subdivision.
The primary use of the lots was intended to be residential, but agricultural uses
(including livestock) were also permitted. The Singers created the easement for
the purpose of ingress and egress across Lot 12, Lot 13, and Lot 14 for the benefit
of the owners of the lots. The instrument establishing the easement contained the
following provisions that are pertinent to the dispute:
[A]ll lots in the Subdivision shall henceforth be held,
transferred, sold and conveyed subject to the following;
(sic)
1. The Guidelines. The Developer (James W. Singer,
Jr., and Ann M. Singer) shall establish a Design Review
Board, hereinafter referred to as the “DRB”.(sic) The
purpose of the DRB shall be to review proposed land use
for all lots, and to review plans for all structures. . . .
At its discretion, the DRB may make suggestions in other
areas which will preserve or enhance the aesthetic and
ecologic integrity of the subdivision. In all cases, the
DRB will have final approval rights. No new
construction or modification of existing features may
occur without the written approval of the DRB.
*****
5:06. Easements: utility, drainage and roadway
easements are reserved over Lots in the Subdivision as
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shown on the recorded Plat. Within these easements, no
grading, structure, fence, plantings, or other material
shall be paced or permitted to remain which may damage
or interfere with the installation and maintenance of
utilities, or which may change the flow of drainage
channels in the easement, or interfere with, or impede the
normal flow of traffic within the Subdivision.
The easement area of each Lot and all improvements on
it shall be maintained continuously by the Owner of the
affected Lot.
5:07. Mowing, maintenance, repairs, and improvement
of roadway:
The Owner of each Lot in the Subdivision shall be
responsible for and bear construction, maintenance and
improvement costs of his allocable portion of the
roadway from the entrance on Galloway Pike as shown
by the recorded plat. The “Allocable Portion” shall be
defined as follows:
*****
Lots 12, 13, and 14 will share equally @ 33 1/3 % for
Blue Ash Trail. Total length of shared road:
approximately 1100 feet.
The Singers recorded a plat that depicted the location and dimensions of the
easement.
The parties to this litigation now own the lots previously owned by the
Singers. The Penas live at Lot 12, farthest from Galloway Road. The Penas were
deeded Lot 12 in November 1996. While a copy of the deed was not made part of
the trial court record, no one disputes that the Penas’ deed includes the portion of
land burdened by the easement. The Penas finished building a house on Lot 12 in
November 1998.
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The Swicegoods bought a house situated on Lot 13 in June 2001.2 The
Hayeses own Lot 14 at the corner of Blue Ash Trail and Galloway Road. The
Hayeses were deeded Lot 14 in 2002; construction of their home was completed in
2003.
The parties’ three lots are contiguous with each of them measuring between
5 and 6¼ acres. Across Blue Ash Trail, the length of the easement is bounded by a
farm owned by Lancaster, who is not a party to this action. When entering Blue
Ash Trail from Galloway Road, one first passes the Hayeses’ home, then the
Swicegoods’ home, and finally the Penas’ home. A relatively narrow section of
the easement lies between the roadway and the Lancaster farm property across the
way. A wider section of the easement lies between the parties’ front lawns and the
roadway.
In a complaint filed April 10, 2005, the Penas alleged that the Swicegoods
and Hayeses had refused to “bear their allocable portion of the construction,
maintenance and improvement costs for Blue Ash Trail. . . .” They alleged that
Blue Ash Trail was “in disrepair, and in need of construction, maintenance, and
improvement in order for it to be passable and returned to useable condition.” In a
separate count, the Penas sought to collect a portion of the costs associated with
their construction of a cattle fence erected along the length of the easement in front
of the homes of the Swicegoods and Hayeses.
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The Swicegoods’ home predates the Penas’ home on Blue Ash Trial; it was built by the
Swicegoods’ predecessors in interest.
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The Swicegoods and the Hayeses filed separate answers and counterclaims
alleging that the Penas had interfered with their beneficial use of the easement.
The Swicegoods and the Hayses sought a declaration of their rights with regard to
use of the easement for ingress and egress as well as an injunction seeking to direct
the Penas to remove the obstructions in and along the easement and to restrain the
Penas from any further obstruction of the easement. They also sought
compensatory and punitive damages.
At trial, the parties presented evidence through testimony and exhibits,
including numerous photographs of the easement and roadway. We shall
summarize and review the evidence as needed for purposes of this appeal.
In 2001, the Penas erected a barrier across the width of Blue Ash Trail
at Lot 13. In the summer of 2001, after the Swicegoods had moved into their
home, Steven Pena identified the dimensions of the easement to John Swicegood
and told him that it consumed about half of the area between the Swicegoods’
home and the road. Pena instructed Swicegood to mow the length and width of the
easement extending from his (the Swicegoods’) driveway to the Hayeses’
driveway. The Swicegoods complied with Pena’s instructions, but John
Swicegood indicated that it was often difficult to meet Pena’s expectations for a
well-manicured green space surrounding the gravel road.
Before the Hayeses’ home was completed in 2003, Steven Pena instructed
Shannon Hayes to clean up the portion of the easement nearest his home. Pena
told Hayes that the Declaration of Easements and Restrictions required him to
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weed and remove tress from his portion of the easement. The Hayeses mowed the
designated portion of the easement. In May 2004, Shannon Hayes added gravel to
a problem area in the road. Shannon Hayes collected $80.00 from Pena as his
contribution toward the improvement. The parties agree that Pena declined
Hayes’s offer of assistance in the clean-up effort following a severe ice storm in
the region.
By 2004, the Penas had become annoyed that the Swicegood children were
riding all-terrain vehicles on and near the easement. The Penas addressed their
concerns to the developer, Jeff Singer. They complained to Singer that the
Hayeses and the Swicegoods were not doing their part to maintain the easement
and that they (the Penas) were prepared to erect a fence to protect their property.
In July and August 2004, the Penas constructed a cattle fence along a portion of the
easement directly in front of the Swicegoods’ home. The fence was designed to
permit the Swicegoods access to their driveway from Blue Ash Trail. The Penas
staked the remainder of the anticipated fence to Galloway Road (along the front of
the Hayeses’ home) and laid out wooden posts to support the wire fencing.
In addition, Joann Pena contacted the garbage collection company providing
service to the Hayeses and Swicegoods. She gave the company’s representative
the clear impression that the Hayeses and Swicegoods lacked any authority to grant
the company permission to enter upon the roadway for garbage collection. She
implied that the company’s truck was not to enter upon Blue Ash Trail. The
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company then informed the Hayeses and the Swicegoods that they would collect
the trash only from Galloway Road.
In November 2004, Stephen Pena sent the Hayeses and the Swicegoods
invoices (by certified mail) for the yard work that he had performed on the
easement over the summer and into the fall. He billed them each $260.00 and
warned them that “[f]ailure to pay this obligation relinquishes your right to utilize
this easement and roadway.” The Hayeses and the Swicegoods did not remit
payment but built a second narrow gravel road parallel to the first (but outside the
easement) and began to use it for ingress and egress.
James Singer, the developer, testified that he did not intend for fencing to be
erected along any portion of the easement as fencing would restrict ingress and
egress to and from lots that adjoin the easement. James Singer explicitly denied
that he had given the Penas permission to erect the cattle fence along the length of
the easement.
Both John Swicegood and Shannon Hayes testified about the effect of
the obstructions upon their use of the easement. They expressed concern about
having sufficient access to their property and dissatisfaction with the aesthetically
unpleasing appearance of the woven-wire cattle fence in front of their homes.
Swicegood felt that he was entitled to the use of the entire length of the roadway
and resented Pena’s decision to block Blue Ash Trail beyond Lot 13. Swicegood
and Hayes indicated that they had been severely inconvenienced by the changes in
their garbage collection service. Additionally, Hayes indicated that he had trouble
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navigating around the long wooden posts that the Penas had laid along the edge of
the easement to indicate the anticipated location of the cattle fence near the
Hayeses’ home. Swicegood and Hayes agreed that the Penas had not discussed
with them the level of maintenance that the easement might reasonably require and
that they found the Penas’ expectations hard to accept. The Penas’ photographs
showed a clearly passable farm road.
Based upon this evidence, the trial court found that the parties had duly
mowed a share of the easement area until July 2004 when the Penas erected the
woven-wire fence along a portion of the length of the easement. The court also
found that the Penas had erected a barrier across the width of the easement at Lot
13, preventing any use of the easement beyond that point.
The trial court found that the Penas are owners of a servient estate and that
they had intentionally obstructed and otherwise interfered with the use of the
easement by the Swicegoods and the Hayeses. The court found that the Penas had
not submitted a written request to the developer for permission to build a fence or
to erect any barrier across the easement and that no written permission had been
granted. However, the court found that there had been no proof that the
Swicegoods or the Hayeses had sustained any actual monetary damages as a result
of the Penas’ obstruction and interference with the easement.
The Court rejected Steven Pena’s contention that he alone could exercise
decision-making authority over the easement, concluding that the Penas have no
right to obstruct or otherwise to interfere with the beneficial use of the easement by
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the Swicegoods or the Hayeses. The court also concluded that no one of the
parties could require the other parties to maintain the easement to any level of
maintenance other than normal mowing and keeping the right-of-way passable.
The trial court granted a permanent injunction restraining the Penas from placing a
barrier across the width of the easement and a fence along its length. It ordered the
removal of the existing obstructions, and it denied the Penas’ request for a
contribution toward the erection of the aesthetically objectionable woven-wire
fence. The parties were ordered to comply with the requirements of the Deed of
Easements and Restrictions. Judgment was entered in favor of the Penas in the
amount of $2,040.00 (to be borne equally between the Swicegoods and the
Hayeses), a figure reflecting the value of the Penas’ lawn care services from 2004.
This appeal followed.
Our review of this case is guided by well settled principles.
In all actions tried upon the facts without a jury . . . the
court shall find the facts specifically. . . . Findings of fact
shall not be set aside unless clearly erroneous, and due
regard shall be given to the opportunity of the trial court
to judge the credibility of the witnesses.
Kentucky Rule(s) of Civil Procedure (CR) 52.01. Findings of fact are clearly
erroneous only if there is no evidence of substance to support them. Black Motor
Co. v. Greene, 385 S.W.2d 954 (Ky.1964). Issues of law are reviewed de novo.
On appeal, the Penas contend that the trial court erred by concluding that
they could not erect a woven-wire fence in front of their neighbors’ homes or block
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use of the road by the Swicegoods and the Hayses beyond Lot 13. We find no
error.
The trial court’s decision was supported by sufficient evidence, and it
wholly conforms to the law. The parties presented evidence to show that there is
an express easement across the Penas’ property benefitting the property of the
Swicegoods and the Hayses. There is no dispute about the location or dimensions
of the easement. There was substantial evidence introduced at trial to indicate that
the Penas unreasonably obstructed and interfered with the use of the easement by
the Swicegoods and the Hayses. In addition, the parties showed that the Penas had
failed to obtain any authorization for their decision to alter the appearance of the
easement.
Next, the Penas contend that the trial court erred by failing to consider
uncontroverted evidence of their damages. Again, we disagree.
In the invoices prepared for the Swicegoods and the Hayses in the second
half of 2004, the Penas billed them $260.00 each for their respective share of the
lawn service provided by the Penas. The trial court accepted this amount as
reasonable and ordered the Hayses and the Swicegoods each to pay their share for
2004, 2005, 2006, and 2007. The trial court did not accept that the Penas had
incurred alleged damages of $20,160.00 – the contract price offered to the Penas
by a professional landscaping company. We find no error in that determination by
the court.
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The trial court also declined to order the Swicegoods and the Hayeses to pay
a share of the cost of removing particular trees and various stumps that the Penas
wanted excavated. Again, we find no error. The trial court properly exercised its
sound discretion in rejecting the testimony of landscape professionals, who
suggested that certain trees should be removed from the fence line, that certain
stumps should be excavated, and that the grass should be mowed on a weekly
basis.
Finally, we note that the Penas have complained for the first time on appeal
that the trial judge failed to “notify the parties of [a] potential conflict.” Appellants
brief at 5. Referencing material not contained in the trial court record, the Penas
assert that the “interpretation and application of the [Declaration of Easements and
Restrictions] in this area will have a direct affect (sic) on the value of the property
owned by the in-laws of the Judge, and potentially owned by his wife.” Id. at 6.
The Penas do not argue that the presiding judge was required by the circumstances
to recuse sua sponte. Instead, they contend that the trial judge should have “made
them aware of this situation and allowed them to decide if they felt comfortable. . .
.” Id. The Penas argue that the court’s failure to report the alleged conflict
requires us to remand for a new trial.
This court is limited to a review of the record before the trial court, and it is
firmly established that a trial court must first be given the opportunity to rule on
issues in order for them to be appropriate for appellate review. Kenney v. Hanger
Prosthetics & Orthotics, Inc., 269 S.W.3d 866 (Ky.App. 2007) citing Kaplon v.
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Chase, 690 S.W.2d 761, 763 (Ky.App. 1985)(“the function of the Court of Appeals
is to review possible errors made by the trial court; if the trial court has had no
opportunity to rule on the question, there is no alleged error for the court to
review.”). The Penas did not file a motion requesting post-judgment relief as to
recusal. They never advised the trial court of its alleged error in order to give it an
opportunity to consider the issue. Additionally, this alleged error was not properly
preserved for review. Therefore, we are precluded from addressing this issue on
appeal.
We affirm the judgment of the Scott Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES:
Rocky L. McClintock
Georgetown, Kentucky
Neil E. Duncliffe
Georgetown, Kentucky
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