FREIDA JOAN LOVING v. CLYDE WILIAMS COX; JOYCE COX; AND JAMES JARBOE
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RENDERED:
SEPTEMBER 3, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000658-MR
FREIDA JOAN LOVING
v.
APPELLANT
APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE JERRY D. WINCHESTER, JUDGE
ACTION NO. 00-CI-00294
CLYDE WILIAMS COX; JOYCE COX;
AND JAMES JARBOE
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
BARBER, DYCHE, AND McANULTY, JUDGES.
McANULTY, JUDGE:
Freida Joan Loving appeals a judgment of the
Whitley Circuit Court entered on March 24, 2003, setting aside a
previous judgment of the court that was based on a jury verdict.
Loving had sued her neighbors Clyde and Joyce Cox and logger
James Jarboe for cutting and removing timber from a disputed
piece of land between the Loving and Cox properties.
A jury
found that the disputed portion of land was within the
boundaries of Loving’s property and awarded her $5,600 in
damages.
The Coxes thereafter filed motions pursuant to CR 52
and CR 59, arguing that the court should set aside the judgment
and enter its own findings of fact and conclusions of law, on
the grounds that the main issue presented in the case was one of
equity and that the role of the jury was therefore purely
advisory.
The trial court entered a new judgment, dismissing
all of Loving’s claims against the Coxes and Jarboe and awarding
the appellees their costs.
The main issue on appeal is whether
the trial court erred in setting aside the earlier judgment that
reflected the verdict of the jury.
Loving and the Coxes own adjoining properties in
Whitley County.
The conflict between the neighbors began in May
2000, when the Coxes hired Jarboe to cut and remove some timber
from a disputed tract of land situated on the boundary of the
two properties.
On May 30, 2000, Loving filed a complaint
against the Coxes for removing the timber, alleging slander of
title, trespass, and conversion.
She requested that her title
to the real estate in question be quieted, that she be granted
compensatory and punitive damages and costs including her
attorneys’ fees and surveyor’s fees, and that a restraining
order be entered to prevent any further incursions on the
property.
In their answer and counterclaim, the Coxes
maintained that they owned the disputed property either by deed
or by adverse possession.
They sought declaratory relief that
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they be adjudged the owners of the property.
On July 10, 2000,
Loving filed a response to the counterclaim in which she denied
the Coxes’ claims and requested a jury trial.
She also made a
motion to add Jarboe as a party defendant. Jarboe objected to
being made a party, claiming that both the Coxes and Loving had
agreed to accept 25 percent of the gross proceeds from the sale
of the timber.
He further stated that he had received a total
of $2,790.55 from the sale of the timber.
He asked the court to
be allowed to place 25 percent of this amount ($697.64) in
escrow pending the outcome of the trial.
Loving responded that she had never hired Jarboe to
harvest the timber, nor had she agreed to a 25 percent royalty.
She was granted leave to add Jarboe as a party defendant by an
order entered on October 2, 2000. She filed an amended complaint
which added a claim against Jarboe for trespass, conversion and
damages.
She again requested that her title to the disputed
tract be quieted and for judgment against the defendants jointly
and severally for compensatory and punitive damages and for
costs including attorneys’ and surveyor’s fees.
On October 10,
2000, Jarboe filed an answer, counterclaim and cross-claim
renewing his request that he be allowed to pay the sum of
$697.64 to the clerk of the court and be dismissed from the
case.
He also requested a trial by jury of all issues so
triable.
The court entered an order permitting Jarboe to place
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the money in escrow, but refusing to dismiss him as a party.
Loving thereafter filed an answer to the counterclaim again
asking for a trial by jury and dismissal of the counterclaim.
The Coxes on October 25, 2000, filed an answer to the first
amended counterclaim and an answer to Jarboe’s cross-claim.
On
November 9, 2000 the court entered an order giving the parties
six months to prepare for trial.
On October 1, 2001, the Court entered an order setting
a trial date of December 13, 2001.
The parties were ordered to
submit jury instructions five days prior to trial.
On October
5, 2001, the court entered an amended order stating that there
was not to be a jury trial and setting a date for a bench trial
instead.
Loving filed motions stating that she did not want a
bench trial and demanding a jury trial.
On April 25, 2002, the
Coxes and Jarboe moved to bifurcate the action so that the
property line dispute could be resolved before any damages were
determined.
On May 17, 2002, the court denied the motion to
bifurcate.
It also denied a motion to consolidate this action
with another lawsuit involving the Coxes and their other
neighbors.
On June 3, 2002, an order was entered setting the case
for trial on October 15, 2002.
Although there is no order in
the record relating to Loving’s motion for a jury trial, it
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appears to have been granted because the parties were ordered to
exchange jury instructions prior to trial.
A jury trial was held on October 15, 2002.
The
parties agreed that the disputed boundary line was described in
the following passage in the Coxes’ deed, but disagreed as to
the location of the drain mentioned in that description:
Beginning on a white oak by the County Road
by a branch thence a southern direction to
the river: thence east with the river to the
mouth of a drain thence a northern course to
an ash: thence a northeast course with the
bluff to a sweet gum: thence northward with
a line fence to a stone at the road: thence
with the road to the beginning. (Emphasis
added)
The location of the boundary depended on where the drain was
located because it marked the beginning of the easternmost edge
of the Coxes’ property.
The Coxes’ surveyor, Edvard Grande, identified the
location of the drain in such a way as to include the disputed
land within the Coxes’ property; Loving’s surveyor testified
that the drain was located in a more westerly location and that
therefore the disputed property formed part of Loving’s tract.
The court thereafter instructed the jury to find the disputed
fact issue as to the location of the boundary line between the
Loving and Cox properties.
In the event that the jury found in
favor of Loving’s survey, the jury was then instructed to
determine damages including the value of the timber taken and
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the damage to the property.
The record indicates that no
objection was made to the jury instructions by any party.
The
court directed a verdict in favor of James Jarboe.
The jury found unanimously in favor of Loving on the
issue of the property line dispute and awarded her damages in
the sum of $5,600 against Clyde Cox.
A judgment was entered on
October 22, 2002, consistent with the jury verdict.
Loving
thereafter moved for triple damages and for an award of
surveyor’s and attorney’s fees pursuant to KRS 364.130.
The Coxes responded with a CR 52 motion to set aside
the verdict of the jury on the grounds that the fundamental
issue at trial was one of equity and that therefore the role of
the jury was advisory unless the parties expressly agreed
otherwise.
The Coxes argued that the determination as to
whether the drain described in the deed was the one identified
by the Coxes’ surveyor or by Loving’s surveyor involved
construing an ambiguous deed and that this was exclusively the
role of the court, not the jury.
The motion stated in relevant
part as follows:
Construing the language used in a deed so as
to quiet title in a disputed area are [sic]
issues arising out of equity for which the
right to trial by jury does not attache
[sic]. Tarter v. Medley, [Ky.,] 356 S.W.2d
255 (1962). A jury verdict rendered on an
issue arising in equity is advisory only and
the Court is not bound by it. Transylvania
University v. McDonald’s Ex’r, [Ky. App.,]
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126 S.W.2d 1117 (1939). In the absence of
expressed consent a jury sitting to hear an
equitable issue is advisory regardless of
how the court may characterize it. Emerson
v. Emerson, [Ky. App.,] 709 S.W.2d 853
(1986). Thus, in the present case, the
Court may either accept the jury’s verdict
or substitute its own.
The Coxes argued that the Court should make its own
findings of fact and conclusions of law pursuant to CR 52.
In
the alternative, they argued for a reduction in the amount of
damages to the sum of $2,700 plus $500.
On November 1, 2002, the Coxes filed a CR 59 motion to
vacate the judgment for the reasons set out in their CR 52
motion.
The Coxes argued that since Loving had not specifically
pleaded a cause of action under KRS 354.130, she was not
entitled to treble damages.
In addition or alternatively, they
argued that since they were innocent trespassers, her damages
should be limited to $675, the royalty value of the timber.
The
motions were heard on November 4, 2002 and apparently were
orally granted because Loving filed a motion to alter, amend or
vacate the order of November 4.
The record does not contain an
account of the November 4 hearing.
On March 24, 2003, the court entered Findings of Fact,
Conclusions of Law and Judgment.
The judgment does not specify
the grounds on which the initial judgment was being set aside
but states in part as follows:
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This matter came on for trial before a jury
on October 15, 2002 and the issues were not
fairly and adequately presented to the jury
for decision and, therefore, the Court
having heard the testimony of the parties
and their witnesses and having examined the
record and being otherwise sufficiently
advised, sets aside the previous Judgment
entered herein and makes the following
Findings of Fact, Conclusions of Law, and
Judgment. (Emphasis added.)
The court found the testimony of the Coxes’ surveyor as to the
location of the drain to be more convincing and consistent with
the other terms of the description in the deed, and therefore
based its opinion primarily on his testimony.
It explained as
follows:
The drain identified by Loving’s surveyor as
the correct drain appears to be a place
where water comes down the hill and goes
into a sinkhole and is not a drain into the
river. The drain identified by the Cox’s
[sic] as the correct drain is large and
empties directly into the river.
The contour lines on the exhibits verify the
bluff and drain. If you follow the drain as
the deed states to the bluff, thence in a
northern course to the sweet gum and fence,
the survey provided by Cox would identify
the correct boundary line. If you use what
Loving describes as a drain and follow the
lines described in the deed along the top of
the bluff, the line would run in a
southeasterly direction rather than a
northern course described in the deed.
Loving raises four arguments on appeal.
The first, and primary argument, is that the circuit
court erred in setting aside the earlier judgment based on the
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jury verdict and making its own findings of fact and conclusions
of law.
Our review of this issue is hindered by the fact that
the second judgment does not specify the grounds for setting
aside the first judgment, apart from the comment that the issues
were not “fairly or adequately presented to the jury” for
decision.
We assume, in light of the motions made by the Coxes
that the court agreed with the Coxes that this was primarily an
equitable action and that therefore the role of the jury was
purely advisory.
CR 39.03 states as follows:
In all actions not triable of right by a
jury the court upon motion or of its own
initiative may try an issue with an advisory
jury; or the court, with the consent of all
parties noted of record, may order a trial
with a jury whose verdict has the same
effect as if trial by jury had been a matter
of right.
In Emerson v. Emerson, Ky. App., 709 S.W.2d 835, 855
(1986), the Court held that when the issue to be tried is
equitable, express consent must be obtained before the parties
are bound by the jury verdict.
No such consent was obtained in
this case.
Loving argues that the circuit court erred if it based
its decision to disregard the jury verdict on the
characterization of this action as one to quiet title.
Loving
maintains that this was essentially a boundary line dispute;
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there was no dispute in this case as to title, chain of title or
any “legal” issue.
The Coxes have correctly pointed out that this was
characterized as a quiet title action in the pleadings, even
though most of the trial was devoted to a factual determination
of where the drain described in the deed is located.
They cite
the rule that in order to determine whether an issue is one
which was traditionally regarded as legal or equitable it is
necessary to look at the pleadings and not the proof.
Brandenburg v. Burns, Ky., 451 S.W.2d 413 (1969).
The Coxes
further argue that this action primarily involved quieting title
to the disputed portion of land.
We note that in some jurisdictions, disagreements over
boundary lines may not, strictly speaking, be determined in
quiet title actions.
See e.g. Rush Creek Land and Live Stock
Co. v. Chain, 586 N.W.2d 284, 289 (1998) (“Boundary disputes
cannot be determined in a quiet title action. . . . [although]
when the parties pursue a boundary dispute as a quiet title
action without objection, the mode of procedure is no longer in
question.”)
“[A] dispute in which each owner admits the title
of the other but disagrees as to the physical location of the
boundary is a boundary dispute, not a title controversy, and it
cannot be determined in a quiet title action.”
Quieting Title § 3.
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74 C.J.S.
In this case, there was no dispute as to the language
of the deed or the construction of the deed or to ownership of
the two adjoining tracts by the Lovings and Coxes.
The only
issue, and it was a purely factual one, was the location of the
drain. Furthermore, every other claim in Loving’s complaint was
clearly a legal claim to which a right to a jury trial attached.
Although at one point the court did set the case for a bench
trial, on the parties’ motion he thereafter set it for a jury
trial.
We think it is incumbent in such a case, and not
contrary to the reasoning in Emerson, (where it was noted that
the issue was equitable by virtue of the court’s order and
judgment, see Emerson, 709 S.W.2d at 855) for the court to make
it clear, preferably at the outset of the trial, whether it
views an action as being purely equitable and whether the jury
is thus to be accorded an advisory role.
Moreover, if we review the court’s action under the
standard for a judgment notwithstanding the verdict, we find
that there was sufficient evidence to support the jury’s
verdict.
In ruling on either a motion for a directed
verdict or a motion for judgment
notwithstanding the verdict, a trial court
is under a duty to consider the evidence in
the strongest possible light in favor of the
party opposing the motion. Furthermore, it
is required to give the opposing party the
advantage of every fair and reasonable
inference which can be drawn from the
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evidence. And, it is precluded from entering
either a directed verdict or judgment n.o.v.
unless there is a complete absence of proof
on a material issue in the action, or if no
disputed issue of fact exists upon which
reasonable men could differ.
Taylor v. Kennedy, Ky. App., 700 S.W.2d 415, 416 (1985).
We have reviewed the trial testimony of the surveyors
and find that there was some evidence to support the verdict of
the jury and that reasonable minds could differ as to the
location of the drain hole described in the deed.
The Coxes
argue that there was insufficient evidence to support the jury
verdict, stating that in placing the drain where he did the
Loving’s surveyor was usurping the role of the court in
interpreting the deed.
Under this reasoning, however, the
Coxes’ own surveyor committed the same error when he similarly
“interpreted” the deed and identified the drain as being farther
east along the river.
Therefore, the circuit court erred if its
action is reviewed under the standard for the grant of a
judgment notwithstanding the verdict.
Loving’s next argument is that the trial court erred
in granting a directed verdict for the logger, James Jarboe.
Jarboe testified that at the time he was hired by Clyde Cox to
cut the timber he was advised that there was a property dispute
with the Lovings.
Jarboe thereafter consulted with Loving and
she told him that he could cut timber on the other side of a
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roadway in the disputed area.
Jarboe testified that he had
discussed with her a possible agreement to pay her a 25 percent
royalty to cut timber on her property as well.
He testified
that three or four weeks later she asked him for more royalty
money, so the deal fell through.
He further testified that he
stopped logging when Loving protested that he was trespassing on
her land.
He received $2,755.15 for the timber and had placed
25 percent ($697.64) of that amount in escrow when he learned of
the litigation.
He admitted that he had cut timber in the
disputed area.
He also testified that it would cost four or
five hundred dollars to clean up the area where the logging had
taken place.
The record indicates that the trial court granted a
directed verdict for Jarboe on the grounds that the plaintiff
had provided insufficient proof of damages.
The judge stated as
follows:
He testified that he cut two truck loads of
trees, that he took them and sold them, and
then when he got back he found out that he
didn’t know which side of the line they were
on. But he had the money, and he was
agreeing to pay it into court to give it to
whoever it belonged to, and that’s it. And
when somebody – The testimony I heard, when
they said for him, don’t be cutting over
here, he didn’t cut any more.
[T]he case is for them to show what the
value of the trees were that he cut[.]
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Loving argues that the directed verdict was erroneous because
Jarboe admitted that he cut timber in the disputed area and he
was therefore liable for the stumpage value of the timber under
either KRS 364.130 or the common law.
The common law differentiates between innocent and
willful trespassers in setting the amount of damages for the
removal of timber:
The rule heretofore adopted by this court is
that where timber is cut and removed by an
innocent trespasser, the measure of damages
is the reasonable market value of the timber
on the stump. Allen v. Ferguson, Ky., 253
S.W.2d 8 [1952]. If the trespass is willful,
a different measure is applied. In that
event, the measure of damages is the gross
sale price at the point of delivery. Morris
v. Thomas Forman Co., 206 Ky. 191, 266 S.W.
873 [1824].
Gum v. Coyle, Ky. App., 665 S.W.2d 929, 931 (1984).
In this case, it appears that Jarboe was an innocent trespasser
acting under Cox’s color of title.
In King v. Grecco, Ky. App., 111 S.W.3d 877, 885
(2002), the defendant King, like Jarboe, “did not deny that he
trespassed on the Grecco’s land and removed timber therefrom.”
This Court held that therefore “[n]ot only was he not entitled
to a directed verdict, but the Greccos were properly so entitled
as it related to King’s liability.
All that remained for the
jury to find was the amount of damages resulting from King’s
wrongful action.”
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A trial judge cannot enter a directed verdict unless
there is a complete absence of proof on a material issue or
there are no disputed issues of fact upon which reasonable minds
could differ.
(1998).
Bierman v. Klapheke, Ky., 967 S.W.2d 16, 18
In this case, there was sufficient testimony at trial
for the jury to assess damages against Jarboe for the stumpage
value of the timber and for cleaning up the disputed area.
The
trial court thus erred in granting him a directed verdict.
Loving’s final argument is that this case should be
remanded for entry of a judgment consistent with the verdict of
the jury and for consideration of triple damages and attorneys’
fees pursuant to KRS 364.130 against Cox and Jarboe.
KRS 364.130 provides for treble damages when a person is found
liable for entering upon and cutting timber growing upon the
land of another.
It states in pertinent part:
[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
upon 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 as well as any legal costs incurred
by the owner of the timber.
The provisions of KRS 364.130 were not invoked by Loving in any
of her pre-trial pleadings or during the course of the trial.
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The issue of statutory damages was first mentioned in a motion
made after the first judgment was entered.
The statutory claim
was not raised in a timely fashion and may not therefore be
considered on appeal.
We agree with Loving that this case should be remanded
to the Whitley Circuit Court for entry of a judgment consistent
with the verdict of the jury.
The Coxes have argued that the
award of $5,600 in damages by the jury in the original verdict
was excessive and not consistent with any testimony given at
trial.
They contend that it must have been the product of
passion or prejudice and cannot be sustained.
W]hen confronted with the issue of reviewing
an award of damages for excessiveness or
inadequacy, the trial court and appellate
court perform different functions. . . .
[T]he trial court is charged with the
responsibility of deciding whether the
jury’s award appears “to have been given
under the influence of passion or prejudice
or in disregard of the evidence or the
instructions of the court.” CR 59.01(d). .
. . Once the issue [excessive or inadequate
damages] is squarely presented to the trial
judge, who heard and considered the
evidence, neither we, nor will the Court of
Appeals, substitute our judgment on
excessiveness [or inadequacy] for his unless
clearly erroneous.
Burgess v. Taylor, Ky. App., 44 S.W.3d 806, 813 (2001)(citations
omitted).
In this case, the trial judge never reviewed the award
of the jury on these grounds because he overturned the jury
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verdict entirely.
We therefore remand the case for a
reinstatement of the jury verdict and a review by the trial
court of the damage award for excessiveness.
The March 24, 2003 judgment of the Whitley Circuit
Court is hereby reversed and remanded for a reinstatement of the
original judgment based on the verdict of the jury; a review of
the amount of the award of damages for excessiveness; and a
determination of the portion of damages owed by appellee Jarboe.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
Marcia A. Smith
Corbin, Kentucky
BRIEF AND ORAL ARGUMENT FOR
APPELLEES CLYDE COX AND JOYCE
COX:
Larry E. Conley
Corbin, Kentucky
BRIEF AND ORAL ARGUMENT FOR
APPELLEE JAMES JARBOE:
Frank A. Atkins
Williamsburg, Kentucky
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