CHRIST CHURCH, UNITED METHODIST, INC. v. GENE BROWN TANDY AND NORMA BAILEY TANDY
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RENDERED:
NOVEMBER 22, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-002350-MR
CHRIST CHURCH, UNITED METHODIST, INC.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE F. KENNETH CONLIFFE, JUDGE
ACTION NO. 02-CI-003195
v.
GENE BROWN TANDY AND
NORMA BAILEY TANDY
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON AND TAYLOR, JUDGES; BUCKINGHAM,1 SENIOR JUDGE.
TAYLOR, JUDGE:
Christ Church, United Methodist, Inc. (Christ
Church) brings this appeal from an October 18, 2005, order of
the Jefferson Circuit Court ordering Christ Church to remove a
parking lot constructed over a 60-foot right-of-way easement.
We affirm.
In May 2002, Gene Brown Tandy and Norma Bailey Tandy
(the Tandys) filed a complaint in the Jefferson Circuit Court
1
Senior Judge David C. Buckingham 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.
seeking a declaration of rights as to the existence of a 60-foot
easement and seeking a permanent injunction enjoining Christ
Church from constructing a parking lot over part of said
easement.
The 60-foot easement at issue was created by a 1957
deed when Christ Church acquired title to its property from
Luther M. Goose and Virginia T. Goose.
In the deed to Christ
Church, the Gooses specifically reserved a right-of-way
easement, which benefited the Tandys’ property2 and was described
as follows:
As part of the consideration for this
conveyance, the Grantors hereby retain
and reserve an easement 60 feet wide,
as hereinafter described, for use as a
means of ingress and egress to and from
Brownsboro Road, or U.S. Highway 42,
and for the use and benefit of any
portion of their remaining property,
and the tract hereinabove conveyed to
the Grantee.
Christ Church sought to expand its parking lot onto
part of the land encumbered by the right-of-way easement.
In
October 2002, the circuit court entered an order denying the
Tandys’ petition for permanent injunction.
The court determined
that the parking lot expansion would, indeed, encroach upon a
portion of the 60-foot easement, but this encroachment was on
2
Gene Brown Tandy and Norma Bailey Tandy acquired title to their property by
a 1959 deed from Virginia T. Goose. This was part of the remaining property
retained by Luther M. Goose and Virginia T. Goose referenced in their deed to
Christ Church, United Methodist, Inc., and subject to the easement created
therein.
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part of the easement not utilized by the Tandys.
The court
ultimately concluded that Christ Church:
[P]roceed with the parking development,
under the caveat that Defendant’s usage of a
portion of the easement will not destroy
Plaintiffs’ usage of any portion of the 60
foot easement that becomes necessary in the
future. In the event that the Plaintiffs
decide to develop their property into
parcels, which requires the usage of the
full 60 foot easement for ingress and egress
to and from the parcels, for instance, the
Plaintiffs will be entitled to fully utilize
the 60 foot easement, and a portion of
Defendant’s improvement may be in jeopardy.
Being dissatisfied with the circuit court’s order, the
Tandys appealed to the Court of Appeals.
In Appeal No. 2002-CA-
002328-MR, a panel of this Court, by opinion rendered November
7, 2003, reversed and remanded the circuit court’s decision.3
Specifically, our Court held:
It is undisputed that the church’s
expansion of its parking lot would interfere
with the Tandy’s ability to use the full
sixty-foot width of the easement for ingress
and egress. Thus, the circuit court erred
by requiring the Tandys to show that the
parking lot interfered with their actual use
of the easement before it would grant them
relief. As stated above, the law in
Kentucky is that when the language of an
easement expressly delineates its
dimensions, the owner of the dominant parcel
need not show actual use of the full width
of the easement in order to enjoin
encroachment by the servient landowner onto
3
Christ Church filed a Motion for Discretionary Review of the Court of
Appeals’ opinion, which was denied by the Kentucky Supreme Court on August
18, 2004.
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a yet unused portion of the encumbered land.
(Footnote omitted.)
The judgment is reversed and this case
is remanded to Jefferson Circuit Court with
directions to issue the permanent injunction
sought by the Tandys.
Upon remand, the circuit court, on January 14, 2005,
entered a permanent injunction and specifically ordered:
Christ Church, United Methodist Inc. a/k/a
Christ Methodist Church, Louisville,
Jefferson County, Kentucky, any agents,
servants, employees, or contractors acting
on behalf of said entity, are hereby
restrained and enjoined from commencing any
paving or surfacing, or resurfacing, of any
portion of that easement or dedicated public
roadway adjacent to the existing parking lot
of the church property, said easement and
dedicated public roadway being 60 feet in
width and more particularly described in the
Complaint and exhibits attached thereto in
this pleading action; the purpose of this
Injunction being to prevent immediate and
irreparable harm to the property interest of
the Plaintiffs, which would occur if
commencement of any paving or resurfacing
were to be permitted.
Although the permanent injunction enjoined Christ Church from
commencing any paving or resurfacing of any portion of the
easement, Christ Church initiated and completed the construction
for the parking lot expansion during the pendency of the appeal.
Thus, a portion of Christ Church’s parking lot was encroaching
upon the 60-foot easement at the time the permanent injunction
was entered.
By order entered October 18, 2005, the circuit
court specifically required Christ Church to “remove all
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modifications to the physical surface of the 60 foot easement
. . . .”
This appeal follows.
Christ Church’s argument on appeal is that the
specific language of the permanent injunction enjoined Christ
Church from “commencing any paving or surfacing, or resurfacing,
of any portion” of the 60-foot easement.
Christ Church argues
that the permanent injunction did not require it to remove the
existing parking lot expansion.
The only order compelling it to
remove its parking lot expansion was the October 18, 2005,
order.
Christ Church maintains that this order is properly
characterized as an enforcement order of the permanent
injunction.
Christ Church also maintains that there has never
been a properly entered permanent injunction requiring it to
remove its parking lot expansion from the physical surface of
the 60-foot easement.
We disagree with Christ Church’s assessment of the
circuit court’s order of October 18, 2005.
This order clearly
supplements and enforces the injunction entered pursuant to the
directive of this Court in Appeal No. 2002-CA-002328-MR.
The
circuit court was acting within its jurisdiction and authority
in ordering Christ Church to remove all modifications to the
physical surface of the 60-foot easement.
349 S.W.2d 199 (Ky. 1961).
-5-
See Wormald v. Macy,
Christ Church’s attempt to relitigate the
enforceability of the Tandys’ easement through semantical
gerrymandering is disingenuous at best.
In Wormald, the Court
fully addressed the propriety of a circuit court enforcing a
permanent injunction in making the following analysis:
We may concede the appellant's propositions
that an injunction is to be strictly
construed, that it will not be extended to
cover acts not fairly and reasonably within
its meaning, and that a party should not be
punished for contempt for failing to do a
certain act if the injunction is reasonably
capable of a construction that it does not
require the doing of such act. However, in
the cases announcing these propositions the
question has been whether the injunction
extended to certain kinds of acts other than
those specifically and unequivocally covered
by its terms. In the instant case, by reason
of the factual circumstances, the question
simply is whether the injunction requires a
particular act to be done or is completely
meaningless.
The rule of strict construction does not
mean that an injunction must be construed
literally to the point of absurdity.
Compliance with the strict letter of an
injunction is not enough if there is a
violation of its obvious spirit; injunctions
must be honestly and fairly obeyed.
An injunction order is to be construed with
reference to the nature of the proceeding
and the purpose sought to be achieved as
shown by the pleadings and the relief prayed
for. It is important to consider the objects
for which relief was granted as well as the
circumstances attending it.
Id. at 201 (citations omitted).
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We adopt the Wormald Court’s reasoning in its entirety
and note that under the facts of this case, the purpose, spirit,
and intent of the circuit court’s injunction was violated by the
modifications performed by Christ Church.
As the circuit court
noted, Christ Church constructed the improvements at its own
risk, knowing that an appeal of the original ruling was pending.
The fact that the improvements were made during the appeal did
not change the legal issues or alter the rights of the parties.
To the extent Christ Church believes it may be injured or harmed
by having to remove the modifications made on the easement, such
consequences are self-inflicted.
Thus, we conclude that the
circuit court’s order to remove all modifications to the
property subject to the easement was properly entered.
For the foregoing reasons, the order of the Jefferson
Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEES:
Grover C. Potts, Jr.
Jennifer Starr
WYATT, TARRANT & COMBS, LLP
Louisville, Kentucky
Paul V. Hibberd
PREGLIASCO·STRAW-BOONE
Louisville, Kentucky
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