FRANK DEWEESE and CAROLYN DEWEESE v. JOHN D. ANNIS FRANK DEWEESE and CAROLYN DEWEESE v. JOHN D. ANNIS; CARRIE ANNIS; JOHN ANNIS, JR.; CHARLES CECIL MARTIN; JAMES P. ROGERS TRUST; and ALL UNKNOWN PERSONS WHO CLAIM ANY INTEREST IN THE SUBJECT MATTER OF THIS ACTION
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RENDERED: JULY 30, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001104-MR
FRANK DEWEESE and
CAROLYN DEWEESE
v.
APPELLANTS
APPEAL FROM BUTLER CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
ACTION NO. 01-CI-00183
JOHN D. ANNIS
APPELLEE
AND
NO. 2003-CA-001128-MR
FRANK DEWEESE and
CAROLYN DEWEESE
v.
APPELLANTS
APPEAL FROM BUTLER CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
ACTION NO. 01-CI-00182
JOHN D. ANNIS; CARRIE ANNIS;
JOHN ANNIS, JR.; CHARLES
CECIL MARTIN; JAMES P. ROGERS
TRUST; and ALL UNKNOWN PERSONS
WHO CLAIM ANY INTEREST IN THE
SUBJECT MATTER OF THIS ACTION
APPELLEES
1. OPINION VACATING AND REMANDING
2. OPINION AFFIRMING IN PART
AND
VACATING IN PART AND REMANDING
** ** ** ** **
BEFORE:
DYCHE, McANULTY, AND SCHRODER, JUDGES.
McANULTY, JUDGE:
In 2003-CA-001104-MR, Frank and Carolyn
Deweese (hereinafter referred to as the “Deweeses”), appeal from
an order of the Butler Circuit Court entered on March 11, 2003,
that dismissed the Deweeses’ complaint.
In their complaint, the
Deweeses sought one-third of any rental income generated from
1991 to 1999, by four acres of land in which they owned an
undivided one-third interest and sought triple the value of onethird of the proceeds from any timber sales.
In 2003-CA-001128-MR, the Deweeses, appeal from an
order of the Butler Circuit Court entered on March 11, 2003,
which dismissed the Deweeses’ petition to quiet title.
In both appeals, the Deweeses argue that the Butler
Circuit Court erred when it dismissed their various causes of
action based on the doctrines of res judicata and collateral
estoppel.
The Deweeses further argue that the trial court erred
when it failed to make findings of fact and conclusions of law.
In 2003-CA-001104-MR, finding that neither res judicata nor
collateral estoppel apply, this Court vacates the trial court’s
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dismissal and remands.
In 2003-CA-001128-MR, regarding the
Deweeses’ claim to quiet title, this Court affirms the trial
court’s dismissal.
Regarding the Deweeses’ claim for the right
to access, this Court vacates and remands for further findings
of fact.
FACTS
In 1991, Garland S. Taylor, Jr. (hereinafter referred
to as “Garland”), filed a forcible detainer action in Butler
District Court to eject the Taylor’s Lake Fish Club (hereinafter
referred to as “Fish Club”) from approximately four acres of
land.
The Fish Club had rented the land, which lay to the east
of and adjacent to Taylor’s Lake, from Garland for several
years.
In defense against the detainer action, the Fish Club
claimed that it, not Garland, owned the property.
The detainer
action was transferred to the Butler Circuit Court to determine
who rightfully owned the property.
number 91-CI-0078.
It was assigned the case
George Ivan Deweese (hereinafter referred to
as “George”) intervened in the action; counterclaimed to quiet
title to the four acres; and argued that he owned an undivided
one-third interest in the property.
After a bench trial, the
trial court found in favor of Garland’s estate.
previously passed away.)
decision to this Court.
(Garland had
George appealed the trial court’s
In 1993-CA-001524-MR, this Court
remanded to the trial court for further findings of fact.
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Upon remand, the trial court again found in favor of
Garland’s estate and George’s estate appealed once more to this
Court.
(George had also passed away before the resolution of
the case.)
After this Court set forth, in detail, the chain of
title to the four acres, this Court concluded that the trial
court had erred when it determined that George did not own an
undivided one-third interest in the subject property.
This
Court reversed the trial court’s judgment and remanded with
instructions for the trial court to enter judgment in favor of
George’s estate giving his heirs an undivided one-third interest
in the four acres.
Upon remand for the second time, the trial court
entered, on August 5, 1998, a judgment and order of sale in
which the court ordered the master commissioner to sell the
subject property and to divide the proceeds.
According to the
trial court’s order, John Annis as the executor of Garland’s
estate would receive two-thirds of the proceeds while Frank
Deweese as administrator of George’s estate would receive onethird of the proceeds.
At the master commissioner’s sale, John
Annis; his wife, Carrie; John Annis, Jr.; Charles Cecil Martin;
and the James P. Rogers Trust purchased the four acres.
Frank
Deweese appealed the judgment entered in August of 1998, but
this Court subsequently affirmed it.
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2003-CA-001128-MR
On December 6, 2001, Frank Deweese and his wife,
Carolyn, filed with the Butler Circuit Court a petition to quiet
title against John Annis; Carrie Annis; John Annis, Jr.; Charles
Cecil Martin; and the James P. Rogers Trust (hereinafter
collectively referred to as “John and Carrie”), the owners of
the four acres which were the subject matter in 91-CI-0078.
In
their petition, the Deweeses stated that they owned one hundred
and ninety-three (193) acres of land which was situated to the
southwest of both Taylor’s Lake and the four acres.
The
Deweeses’ 193 acres shared a common property line with the four
acres along the shoreline of the lake.
According to the
petition, the four acres stretched underneath Taylor’s Lake.
The Deweeses claimed that the property line of their 193 acres
where it touched the four acres stretched down the bank of the
lake to its low water point.
The Deweeses sought to quiet title
to set the low water mark as their property line.
The Deweeses
subsequently amended their petition to also claim that they had
a right to access and use the lake since it was a blue line
stream.
John and Carrie answered and counterclaimed that the
property line extended to the top of the bank.
They also
asserted the doctrines of res judicata and collateral estoppel
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barred the Deweeses quiet title action since this issue had been
previously litigated in 91-CI-0078.
John and Carrie filed a motion to dismiss and again
argued res judicata and collateral estoppel barred the Deweeses’
claims.
Without making either findings of fact or conclusions
of law, the trial court granted John’s and Carrie’s motion and
dismissed the Deweeses’ petition.
The Deweeses’ filed a motion
to reconsider and for findings of fact, which the trial court
summarily denied.
The Deweeses then appealed to this Court.
On appeal, the Deweeses argue that the trial court
erred when it dismissed their petition as barred by the
doctrines of res judicata and collateral estoppel.
The Deweeses
insist that neither res judicata nor collateral estoppel apply
since the issues and questions of law they present in the
instant case are different from those presented in the prior
action, 91-CI-0078.
The prior action addressed who owned the
four acres, while the instant case addresses where the Deweeses’
property line in relation to the four acres and the right to
access the lake.
Furthermore, the Deweeses insist that the trial court
committed reversible error when it failed to make findings of
fact.
This Court agrees with the Deweeses that whether
treated as a motion to dismiss due to failure to state a claim
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on which relief can be granted or whether treated as a motion
for summary judgment, the standard of review on appeal is de
novo.
See James v. Wilson, Ky. App., 95 S.W.3d 875 (2003) and
Blevins v. Moran, Ky. App., 12 S.W.3d 698 (2000).
Thus, this
Court need not defer to the trial court’s decision.
Blevins v.
Moran, supra at 700.
Regarding res judicata, the former Kentucky Court of
Appeals, now the Supreme Court, stated in Prewitt v. Wilborn,
184 Ky. 638, 212 S.W. 442, 449-450 (1919):
The doctrine of res judicata is that a final
judgment rendered upon the merits of the
case, by a court having jurisdiction of the
subject-matter and the parties, is
conclusive of the rights of the parties and
their privies in another suit on the points
and matters in issue in the first suit. A
distinction must be drawn, however, between
the effect of a judgment in a second suit
between the same parties upon the same cause
of action and a second suit between the same
parties upon a different cause of action.
In the first instance, the judgment is a
complete bar to the second action, not only
as to everything which was used in the first
action to sustain or defeat the demand, but
everything which the parties could have used
properly for that purpose; but in the second
instance, where the second suit is between
the same parties upon a different cause of
action from that involved in the first
action, the judgment in the first action is
an estoppel to a relitigation of questions
which were actually litigated and determined
in the first action, and of such questions
as were necessarily determined by the
judgment in the first action in arriving at
the decision, and is not conclusive as to
matters not decided, and the decision of
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which were not essential to the decision in
the first suit, although issues may have
been made in reference to them.
. . . The accepted rule in determining
whether two suits are upon the same cause of
action is whether the same evidence will
sustain or defeat the action in both cases.
(Emphasis supplied.)
See also Gibson v.Crawford, 259 Ky. 708,
83 S.W.2d 1 (1935) and Hays v. Sturgill, Ky., 193 S.W.2d 648
(1946).
The prior litigation was an action to quiet title.
To
quiet title to the property, the parties had to show title back
to the Commonwealth or show title back to a common grantor.
Brown v. Martin, 239 Ky. 146, 39 S.W.2d 243, 245 (1931).
According to this Court’s opinion, Deweese v. Annis, 1996-CA002295, George Deweese showed title for the four acres back to a
common grantor, J.J. Borah.
Despite the Deweeses’ claims to the contrary, their
current claim to quiet title does concern the same four acres
that was the subject matter of the prior litigation.
So, the
parties to the instant case would have to once again trace the
chain of title for the four acres back to a common grantor.
The
same evidence presented in the prior action would be presented
again in the instant case.
As a result, res judicata does bar
the Deweeses’ action to quiet title in the instant case.
Given
the fact that the same evidence sustains both actions to quiet
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title, the Deweeses should have raised their current claim
during the prior litigation.
Therefore, this Court affirms the
trial court’s dismissal of the Deweeses’ action to quiet title.
The Deweeses’ also claim that Taylor’s Lake is a blue
line stream; thus, they have access to it.
this claim to be ambiguous.
This Court finds
The Court cannot discern the nature
of the evidence the Deweeses would have produced to support this
claim.
Therefore, this Court is unable to apply the same
evidence test to determine whether res judicata would bar this
cause of action.
Therefore, this Court remands this claim to
the trial court for further findings of fact to determine its
exact nature and whether it is barred by res judicata.
The doctrine of collateral estoppel does not apply to
either of the Deweeses’ claims since collateral estoppel applies
to questions of fact or law that have actually been litigated in
prior suits.
Revenue Cabinet, Commonwealth of Kentucky v.
Samani, Ky. App., 757 S.W.2d 199, 2002 (1988).
Neither of the
Deweeses’ claims was litigated in the previous case.
2003-CA-001104-MR
On December 7, 2001, the Deweeses filed a complaint in
which they alleged that from 1991 to 1999, John and Carrie
received rent in the amount of $2,100.00 per year, presumably
from the Fish Club.
Since the trial court eventually determined
that the Deweeses, as heirs of George Deweese, owned an
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undivided one-third interest in the four acres, the Deweeses
argued that they were entitled to one-third of any rental income
received by John and Carrie from 1991 to 1999.
Moreover, the
Deweeses alleged that John and Carrie, without the Deweeses’
consent, entered the four acres, cut, and sold timber for an
unknown price.
The Deweeses argued that they were entitled to
triple the value of one-third of proceeds from any timber sales.
On May 4, 2002, John and Carrie filed a motion to
dismiss and argued that, in the prior litigation, 91-CI-0078,
the Deweeses had filed a motion in which they sought the same
relief.
In support of their motion, John and Carrie attached a
motion filed by the Deweeses in the prior litigation in which
the Deweeses sought one-third of any rental income and one-third
of the proceeds from any timber sales.
The trial court summarily granted John’s and Carrie’s
motion and dismissed the Deweeses’ complaint.
As in the
companion case, the Deweeses appealed to this Court.
On appeal, the Deweeses argue that the trial court
erred since the instant case presented different issues than
those adjudicated in the prior litigation, 91-CI-0078.
In the
prior litigation, George Deweese sought to quiet title in the
four acres, while in the instant case, his heirs, the Deweeses,
seek alleged rental income and alleged proceeds from timber
sales.
The Deweeses argue that neither res judicata nor
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collateral estoppel applies since the trial court never
determined these issues on their merits.
This Court agrees.
In Newman v. Newman, Ky., 451
S.W.2d 417, 419 (1970) the high court held:
The general rule for determining the
question of res adjudicata as between
parties in actions embraces several
conditions. First, there must be identity
of parties. Second, there must be identity
of the two causes of action. Third, the
action must be decided on its merits. In
short, the rule of res adjudicata does not
act as a bar if there are different issues
or the questions of law presented are
different.
There can be no question that identity of parties exists since
the same parties were involved in both 91-CI-0078 and the
instant case.
Likewise, there can be no question that identity
of the causes of action exists.
In 91-CI-0078, the prior
litigation, the Deweeses filed with the Butler Circuit Court a
motion in which they sought one-third of rental income generated
by the four acres and one-third of the proceeds from any timber
sales.
The Deweeses seek the same relief in the instant case.
However, the trial court never ruled upon the Deweeses’ motion,
therefore, never decided the Deweeses’ claims on their merits.
Thus, res judicata does not apply to the claims for rental
income and for the proceeds from timber sales.
Furthermore, collateral estoppel does not apply, since
collateral estoppel applies when an issue of fact or law has
-11-
been actually litigated and determined by a valid and final
judgment.
Revenues Cabinet, Commonwealth of Kentucky v. Samani,
Ky. App., 757 S.W.2d 199, 202 (1988).
Thus, in 2003-CA-001104-MR, for the foregoing reasons,
this Court vacates the Butler Circuit Court’s dismissal and
remands for further proceedings not inconsistent with this
opinion.
Further, in 2003-CA-001128-MR, the dismissal is
vacated and remanded for further findings.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
John David Cole, Jr.
Cole & Moore
Bowling Green, Kentucky
Brent Travelsted
Hughes & Coleman
Bowling Green, Kentucky
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