ROBERT APPLEGATE v. WILLIAM CROPPER; NITA CROPPER; WALTER TAYLOR; KIMBERLY TAYLOR; REBECCA POWELL AND THELMA FLIPPIN, CO-EXECUTORS OF THE ESTATE OF GALE CLATON AND WILLIAM CROPPER AND NITA CROPPER v. ROBERT APPLEGATE; WALTER TAYLOR; KIMBERLY TAYLOR; REBECCA POWELL AND THELMA FLIPPIN, CO-EXECUTORS OF THE
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November 12, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2001-CA-002549-MR
ROBERT APPLEGATE
v.
APPELLANT
APPEAL FROM LEWIS CIRCUIT COURT
HONORABLE LEWIS D. NICHOLLS, JUDGE
ACTION NO. 99-CI-00099
WILLIAM CROPPER; NITA CROPPER;
WALTER TAYLOR; KIMBERLY TAYLOR;
REBECCA POWELL AND THELMA FLIPPIN,
CO-EXECUTORS OF THE ESTATE OF GALE CLATON
APPELLEES
AND
NO. 2001-CA-002647-MR
WILLIAM CROPPER AND
NITA CROPPER
v.
CROSS-APPELLANTS
CROSS-APPEAL FROM LEWIS CIRCUIT COURT
HONORABLE LEWIS D. NICHOLLS, JUDGE
ACTION NO. 99-CI-00099
ROBERT APPLEGATE; WALTER TAYLOR;
KIMBERLY TAYLOR; REBECCA POWELL AND
THELMA FLIPPIN, CO-EXECUTORS OF THE
ESTATE OF GALE CLATON
CROSS-APPELLEES
AND
NO. 2002-CA-002168-MR
ROBERT APPLEGATE
APPELLANT
APPEAL FROM LEWIS CIRCUIT COURT
HONORABLE LEWIS D. NICHOLLS, JUDGE
ACTION NO. 99-CI-00099
v.
REBECCA POWELL AND THELMA FLIPPIN,
CO-EXECUTORS OF THE ESTATE OF GALE
CLATON; WILLIAM CROPPER; NITA CROPPER;
WALTER TAYLOR; KIMBERLY TAYLOR
APPELLEES
OPINION
AFFIRMING APPEAL NO. 2001-CA-002549-MR;
REVERSING AND REMANDING CROSS-APPEAL NO. 2001-CA-002647-MR;
AND AFFIRMING APPEAL NO. 2002-CA-002168-MR
** ** ** ** **
BEFORE:
JOHNSON AND TAYLOR, JUDGES; EMBERTON, SENIOR JUDGE.1
TAYLOR, JUDGE:
Robert Applegate (“Applegate”) brings Appeal No.
2001-CA-002549-MR from a judgment entered August 21, 2001, after
a bench trial by the Lewis Circuit Court, awarding treble
damages against him for the wrongful cutting and removal of
1
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and Kentucky Revised Statutes 21.580.
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timber under Kentucky Revised Statutes (KRS) 364.130(1).
William Cropper and Nita Cropper (“the Croppers”) bring CrossAppeal No. 2001-CA-002647-MR from the same judgment denying
their claim for an award of attorney fees under KRS 364.130(1).
Applegate also brings Appeal No. 2002-CA-002168-MR from a
separate post-judgment order entered by the Lewis Circuit Court
on September 21, 2002, ordering Applegate to pay $200.00 in
attorney’s fees to Croppers’ attorney for failure to comply with
post-judgment discovery requests and denying Applegate’s Rule
60.02 challenge to the judgment in favor of Gale Claton2 entered
on August 21, 2001 (Appeal No. 2001-CA-002549).
We affirm
Appeal No. 2001-CA-002549-MR, reverse and remand Cross-Appeal
No. 2001-CA-002647-MR, and affirm Appeal No. 2002-CA-002168-MR.
In May 1999, Applegate purchased land in Lewis County
for the purpose of cutting and removing timber located thereon.
Sometime thereafter, Applegate also acquired the right to cut
timber from property owned by Walter Taylor and Kimberly Taylor.3
Applegate’s purchase from the Taylors included the right to cut
timber located at their residence, as well as the timber rights
to a separate six-acre tract of land the Taylors owned.
At the
2
Applegate filed a third-party complaint against Gale Claton who then filed a
cross-claim against Applegate for wrongfully cutting and removing timber from
his property. Claton died after the appeal was filed in this action and his
Executors have been substituted as parties to the appeal.
3
Walter and Kimberly Taylor were also named third-party defendants in
Applegate’s third-party complaint in the original action. However, the
claims against the Taylors were dismissed in the August 21, 2001, judgment of
the Lewis Circuit Court.
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time of the sale of the timber rights, Walter Taylor advised
Applegate that he did not know exactly where the six-acre tract
was located; however, Taylor pointed Applegate in what he
thought was the general direction of the tract, and told
Applegate that he was free to remove the timber if he was able
to locate the six-acre tract.
Thereafter, Applegate met with Gale Claton, a neighbor
of both the Taylors and the Croppers.
Claton gave Applegate
permission to traverse his property to reach the timber on an
adjacent parcel of land.
Applegate and his employees inspected
the adjacent parcel and, having determined that it was the
Taylor’s six-acre tract, Applegate then began to cut and remove
the timber.
Shortly afterward, Applegate was informed by the
Croppers that the land upon which he was cutting the timber
actually was owned by them.
The Croppers filed an action against Applegate for the
wrongful cutting and removal of timber from their property in
the Lewis Circuit Court on June 15, 1999.
A temporary
restraining order was entered against Applegate by the court
pending the outcome of the litigation.
The Taylors and Claton
were subsequently joined by Applegate as third-party defendants.
Thereafter, Claton filed a cross-claim against Applegate,
alleging that Applegate also removed several trees from Claton’s
property and caused damage to the surface of his land.
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The matter was tried by the court without a jury.
On
August 21, 2001, the Lewis Circuit Court entered Findings of
Fact, Conclusions of Law, and Judgment.
The court concluded
Applegate had cut and removed timber from the Croppers’ property
without their permission and without title or color of title to
the property.
The court also found Applegate had cut and
removed several trees from Claton’s property without Claton’s
permission.
However, the court found that Applegate had been
granted permission by Claton to traverse his property in order
to reach the timber on the adjacent tract.
The circuit court held that the Croppers and Claton
had both proved their cases by a preponderance of the evidence
and therefore, satisfied the requirements of KRS 364.130(1).
Applegate was ordered to pay treble damages to the Croppers
totaling $34,539.30 and treble damages to Claton totaling
$4,800.00.
Applegate was also ordered to pay the Croppers’ and
Claton’s “legal costs,” exclusive of their attorney’s fees.
Following the circuit court’s decision, Applegate
filed a motion to alter, amend, or vacate judgment.
The motion
was based largely on Applegate’s contention that he had “color
of title” to the land in question.
The Lewis Circuit Court
entered an order on October 19, 2001, denying Applegate’s
motion.
The court noted that “[t]he Taylor deed in no way
established color of title to the Cropper land which was
-5-
actually cut.”
The court further noted that the evidence
clearly established Applegate had failed to take reasonably
prudent steps to locate the Taylor six-acre tract before cutting
Croppers’ timber.
Applegate’s appeal of this order and judgment
and the Croppers’ cross-appeal followed.
The second order that has been appealed by Applegate
in this case was entered by the Lewis Circuit Court on September
21, 2002.
This order arose from two separate post-judgment
motions filed by Applegate.
On July 29, 2002, the court ordered
Applegate to pay $200.00 to Croppers’ attorney for failure to
timely respond to post-judgment discovery requests.
filed a Rule 59.05 motion in response.
Applegate
Before this motion was
heard, Applegate filed a Rule 60.02 motion seeking to set aside
Claton’s judgment for money damages on the ground of newly
discovered evidence.4
In August of 2002, Applegate had
discovered a deed in the Lewis County Clerk’s Office whereby
Claton had transferred his property to a living trust in 1992.
Applegate thus argued that the trust and not Claton was the real
party in interest and the judgment for Claton should be set
aside.5
The court considered both motions at a hearing on
4
This was the judgment entered in August of 2001 (made final by Order entered
October 19, 2001), which was on direct appeal to this Court in Appeal No.
2001-CA-002549-MR.
5
It should be noted that Applegate initiated the third-party complaint
against Claton, apparently without reviewing the real estate records in the
Lewis County Clerk’s Office.
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September 20, 2002, and denied them.
As concerns the Claton
motion, the court held that the evidence supported the judgment
on the merits and substituting the trust for Claton would not
have changed the result.
Applegate appealed this order on
October 21, 2002, which was consolidated with the pending
appeals, all of which are now before this Court for review.
APPLEGATE APPEAL – NO. 2001-CA-002549-MR
Applegate raises three arguments in his direct appeal
of the judgment entered August 21, 2001.
We will address each
separately.
In his first argument, Applegate contends the Croppers
failed to establish the boundary of their property and that the
trial court’s finding that such boundary was established is
clearly erroneous.
We disagree.
Our review of this judgment is governed by Ky. R. Civ.
P. (CR) 52.01.
This rule states that, on appeal, “[f]indings 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.”
The Croppers introduced evidence at trial of a search
tracing their property’s title to 1894.
Subsequent deeds were
also introduced, as was testimony regarding the boundary line of
the property.
In fact, Applegate did not produce any evidence
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to contradict the Croppers’ claim of ownership, nor did he
introduce any evidence that the property he cut and removed
timber from was in fact the Taylor’s six-acre tract.
Upon the
whole of the evidence, we cannot conclude that the trial court’s
findings of fact with regards to the Croppers’ property
boundaries were clearly erroneous.
Applegate’s second argument is that the trial court
erred in holding that Applegate was without color of title to
the six-acre tract of land he cut timber from, and, as such,
erroneously awarded the Croppers and Claton treble damages.
We
again disagree.
KRS 364.130(1) states:
[A]ny person who cuts or saws down, or
causes to be cut or sawed down with intent
to convert to his own use timber growing up
on the land of another without legal right
or without color of title in himself to the
timber or to the land upon which the timber
was growing shall pay to the rightful owner
of the timber three (3) times the stumpage
value of the timber and shall pay to the
rightful owner of the property three (3)
times the cost of any damages to the
property . . . .
It is well-established that the term “‘[c]olor of
title’ does not mean title in fact, but appearance of title
. . . .”
Hurst v. Commonwealth, Ky. App., 125 S.W.2d 772, 774
(1939).
In Hurst, a dispute arose between the parties regarding
the boundary line between their adjoining parcels of land.
-8-
Appellant was convicted of a misdemeanor for cutting down and
removing timber.
On appeal, appellant claimed that since there
was confusion as to the actual boundary between the two
properties, he had reason to believe the timber was his, and,
thus, had color of title to the timber.
The Court agreed,
holding that appellant had color of title since “there was a
bona fide dispute between the parties and appellant had
reasonable grounds to believe that the line claimed by him was
the correct one.”
Id. at 774.
In McDaniel v. Ramsey’s Adm’rs, Ky., 204 S.W.2d 953
(1947), the center of the controversy was a deed purportedly
obtained through a tax sale.
Appellant claimed that the sale,
and therefore the deed, was invalid.
The Court disagreed,
holding that, “[a]ny instrument purporting to convey land and
showing the extent of the grantee's claim may afford color of
title.” Id. at 954.
The Court further held:
Evidences of title such as deeds, etc.,
purporting to convey title, whether valid or
not, under which an entry is made,
constitute color of title and accompanied by
actual possession evidence possession to the
extent of the boundary described therein.
Id. at 954, quoting New York-Kentucky Oil & Gas Co. v. Miller,
187 Ky. 742, 220 S.W. 535, 537 (1920).
These authorities are clearly distinguishable from
this case.
Here, Applegate had no writing or instrument to
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document his title.
Applegate purchased the timber rights to a
six-acre tract of land from the Taylors without any knowledge of
the actual location of the tract.
In fact, Applegate did not
independently attempt to locate the tract.
He did not survey
the property, consult topography maps, or complete a title
search.
There could not have been a dispute regarding the
proper boundary between the Croppers’ and the Taylors’ property
because no one knew where the Taylors’ property was.
As the
trial court noted, Applegate failed to take those steps that a
reasonable and prudent logger should take to locate property
that he intended to remove timber from.
We do not believe
Applegate can pass this responsibility to a third party.
The
trial court concluded from the evidence as a whole that
Applegate removed timber from the Croppers’ property.
Applegate
has failed to demonstrate that these findings are clearly
erroneous.
Finally, Applegate argues Claton mistakenly
represented to him that the land from which Applegate cut timber
belonged to the Taylors.
Applegate contends that since he
relied on Claton’s statements to his detriment, Claton should be
held partially responsible for the damage to the Croppers’
property.
We disagree.
As noted, CR 52.01 prevents this Court from setting
aside the factual findings of the trial court unless those
-10-
findings are clearly erroneous.
The trial court did not believe
Applegate’s contention that Claton had mistakenly represented to
him the location of the Taylor’s property.
Similarly, there is
nothing in the record, other than the allegations made by
Applegate, to indicate that Claton did in fact make such
statements.
Therefore, the findings of the trial court were not
clearly erroneous and will not be set aside.
CROPPER CROSS-APPEAL – NO. 2001-CA-002647-MR
The Croppers argue on cross-appeal that the trial
court erred by failing to award attorney fees as “legal costs”
under KRS 364.130.
We agree with the Croppers’ interpretation
of the statute and reverse the trial court’s ruling on this
issue.
KRS 364.130(1) states that an individual who cuts
timber on the land of another without legal right or color of
title “shall pay to the rightful owner . . . any legal costs
incurred by the owner of the timber.” (emphasis added).
In this
case, the Croppers prevailed in their action against Applegate
and were awarded treble damages as provided by the statute.
However, the trial court apparently misconstrued the term “legal
costs” and refused to award attorney fees as part of its
judgment.
The trial court indicated in the judgment that legal
-11-
costs do not include attorney fees and those costs must be
established by the filing of a Bill of Costs.
Apparently, the trial court confused court costs with
legal costs and, thus, misinterpreted the statute.
are defined in CR 54.04 and KRS 453.050.
court costs.
Court costs
Attorney fees are not
However, our Court has recently examined this
issue of whether “legal costs” includes attorney fees under KRS
364.130(1).
In King v. Grecco, Ky. App., 111 S.W.3d 877 (2002),
we held that an award of attorney fees under KRS 364.130(1) is
mandatory.
In other words, a trial court is required to award
attorney’s fees to a party who prevails under this statute.
In
this case, the trial court had no discretion in not awarding
attorney fees to the Croppers once it had determined that
Applegate had violated the statute by cutting the Croppers’
timber.
However, King requires that any award of attorney fees
must be reasonable.
Id.
On remand, the trial court is directed
to determine the reasonableness of the attorney fees sought by
the Croppers in this action.
The reasonableness of the fees
incurred will look to the amount of time involved, the task
assigned, and the degree of difficulty for the services provided
under the circumstances of this case.
See Dingus v. FADA
Service Co., Inc., Ky. App., 856 S.W.2d 45 (1993).
It should be
noted that on remand, consideration of an award of attorney fees
-12-
shall be limited to the Croppers’ claim only.
Since Claton did
not appeal the denial of attorney fees in his judgment, the
denial of those fees will not be reconsidered by the trial court
on remand.
APPLEGATE APPEAL – NO. 2002-CA-002168-MR
Applegate argues that since Claton filed his crossclaim against Applegate in his individual capacity rather than
in his capacity as trustee of the “Gale J. Claton Trust,” he was
not a real party in interest.
We disagree.
CR 17.01 states
that “[e]very action shall be prosecuted in the name of the real
party in interest . . . .” (emphasis added).
The definition of
the term “real party in interest” has been previously addressed
by this Court.
In Brandon v. Combs, Ky. App., 666 S.W.2d 755,
759 (1984), the Court held that “[t]he real party in interest is
the one who is entitled to the benefits of the action upon the
successful termination thereof.”
Likewise, in Gay v. Jackson
County Board of Education, Ky., 205 Ky. 277, 265 S.W. 772, 773
(1924), the Court held that “[t]he ‘real party in interest’ is
one who has actual and substantial interest in the subjectmatter as distinguished from one who has only nominal interest
therein.”
In Taylor v. Hurst, Ky. App., 186 Ky. 71, 216 S.W. 95
(1919), the Court further held that “’[t]he test of whether one
is the real party in interest, within the meaning of the
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statute, is:
Does he satisfy the call for the person who has
the right to control and receive the fruits of the litigation?’”
Id. at 96, quoting Gross v. Heckert, 120 Wis. 314, 97 N.W. 952,
(Wis. 1904).
With regard to a person acting as trustee of an
express trust, CR 17.01 states that a “trustee of an express
trust . . . may bring an action without joining the party or
parties for whose benefit it is prosecuted.”
Both parties agree that when Applegate cut timber from
Claton’s property, the property was held in the name of the
trust.
Claton was (and remained up to the date of the trial)
the sole settlor, trustee, and beneficiary of the trust.
As
such, Claton was the only person “who is entitled to the
benefits of the action upon the successful termination thereof.”
Brandon, 666 S.W.2d at 759.
Likewise, Claton’s status as sole
trustee and sole beneficiary make him the only individual with
an “actual and substantial interest in the subject-matter” of
the trust.
Gay, 265 S.W. at 773.
Thus, the question of whether
Claton is the individual who has control over and would receive
the benefits of this litigation must be answered in the
affirmative.
See Taylor, 216 S.W. 95.
The Court would again note that Applegate initiated
this action against Claton without determining the status of the
legal title to the property that he wrongfully removed timber
-14-
from.
Applegate also went to trial without raising this issue.
Only in hindsight after losing at trial did he check the county
clerk’s records and discover the actual status of Claton’s
title.
Under these circumstances, we believe Applegate is also
estopped from now raising this technical defect.
For the foregoing reasons, the August 21, 2001,
judgment of the Lewis Circuit Court is affirmed in part and
reversed in part and this matter is remanded for proceedings not
inconsistent with this opinion; and the September 21, 2002,
order is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT/CROSSAPPELLEE, ROBERT APPLEGATE:
Charles L. Douglas, Jr.
Greenup, Kentucky
BRIEF FOR APPELLEES/CROSSAPPELLANTS, WILLIAM CROPPER
AND NITA CROPPER:
Brian C. McCloud
Raceland, Kentucky
BRIEF FOR APPELLEE/CROSS
APPELLEE, REBECCCA POWELL AND
THELMA FLIPPIN, CO-EXECUTORS
OF THE ESTATE OF GALE CLATON:
Lloyd E. Spear
Spear & Blackburn, P.S.C.
Vanceburg, Kentucky
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