DOUGLAS R. LEWIS v. HAROLD TRAVIS; SUE TRAVIS; AND JON W. TRAVIS
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RENDERED: JUNE 29, 2007; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-000531-MR
NO. 2006-CA-000574-MR
NO. 2006-CA-000807-MR
DOUGLAS R. LEWIS
v.
APPELLANT/CROSS-APPELLEE
APPEALS AND CROSS-APPEAL FROM LYON CIRCUIT COURT
HONORABLE BILL CUNNINGHAM, JUDGE
ACTION NO. 05-CI-00029
HAROLD TRAVIS;
SUE TRAVIS; AND
JON W. TRAVIS
APPELLEES/CROSS-APPELLANTS
OPINION
AFFIRMING
** ** ** ** **
BEFORE: HOWARD AND STUMBO, JUDGES; BUCKINGHAM,1 SENIOR JUDGE.
STUMBO, JUDGE: Douglas R. Lewis appeals from a partial summary judgment and
order reflecting a jury verdict rendered in the Lyon Circuit Court. He argues that he is
entitled to fee simple title to a parcel of disputed real property, and that the trial court
incorrectly placed the burden on him to prove adverse possession. Harold D. Travis, Sue
Travis, and Jon W. Travis cross-appeal, arguing that Lewis should not have been allowed
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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 KRS 21.580.
to assert the theory of adverse possession at trial, and that they improperly failed to
receive a jury instruction on punitive damages. For the reasons stated below, we affirm.
In May, 1984, Harold and Sue Travis (“the Travises”) purchased a parcel of
real property situated in Lyon County, Kentucky. The parcel was bounded on its western
border by Route 819, and on its northern border by an old public roadway referred to
either as Old Macedonia Road or Varmit Trace Road. The old roadway is used by the
Travises to reach a driveway providing ingress and egress to the parcel. The Travis
parcel is composed of two tracts, the western-most being referred to as the Compton
Tract, and the eastern-most as the Rice Tract.
In 1991, pursuant to statute, the Lyon County Fiscal Court voted to
discontinue its maintenance of Old Macedonia Road. The roadway had been abandoned
as a public thoroughfare, though it continued to be used by the Travises to access their
driveway. The Travises unsuccessfully objected to the action.
In January, 2004, Lewis purchased a parcel of real property directly north of
the Travis parcel. The Lewis parcel is also bounded on its western border by Route 819,
and on its south by Old Macedonia Road. Like the Travises, Lewis accesses his
driveway by traveling east on Old Macedonia Road from Route 819.
In October, 1994, the Travises conveyed a 2-acre tract of the Travis parcel
to their son, Jon Travis.2 The parcel is situated on the northern edge of the Travis parcel
and was made up of portions of both the Compton Tract and the Rice Tract.
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The phrase “the Travises” will refer either to Harold and Sue Travis, or to Harold, Sue
and Jon Travis as warranted.
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Sometime thereafter, a dispute arose between Lewis, the Travises and Jon
Travis as to the location of the boundaries of the respective parcels and the ownership of
Old Macedonia Road. At the center of the dispute was a section of realty between the
centerline of Old Macedonia Road and an adjacent fence row that ran along the southern
edge of the road. When the dispute could not be resolved, in February, 2001, the three
Travises filed the instant action against Lewis in Lyon Circuit Court. They alleged
ownership of the strip of land between the centerline of Old Macedonia Road and the
fence road, and maintained that Lewis had trespassed on same resulting in damages.
They sought injunctive relief and a declaration of fee simple title to the disputed strip of
land.
Lewis answered and counterclaimed. An extensive procedural history
followed, which is sufficiently set forth in the record and need not be recited herein. On
February 14, 2005, the circuit court rendered an order enjoining all parties from using the
disputed parcel and requiring Lewis to remove certain personal property items from
same. Thereafter, the Travises moved for summary judgment and Lewis moved for
partial summary judgment.
On October 17, 2005, the circuit court rendered an order addressing the
motions. For purposes of clarifying the dispute, the court described a western portion of
the disputed strip as “Segment 1” and the eastern portion as “Segment 2”. Segment 1
consisted of the disputed roadway running between Route 819 and the parties’ driveways.
Segment 2 consisted of the portion of the abandoned Old Macedonia Road which ran east
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of the parties’ driveways. Upon personally inspecting the roadway, Circuit Judge Bill
Cunningham noted that the portion of Old Macedonia Road through and past Segment 2
had been abandoned for many years and that “there is barely any evidence that an old
roadway ever existed.” Judge Cunningham also found that two outbuildings or sheds had
been constructed many years earlier on what was once the centerline of Old Macedonia
Road, leading him to conclude that a prior owner or owners of the Lewis parcel must
have believed that the boundary was the southern edge of Old Macedonia Road rather
than its centerline.
The court found that though Old Macedonia Road had been abandoned by
Fiscal Court in 1991, the portion running through Segment 1 remained a public roadway
that was open for the mutual use and enjoyment of all of the parties. As such, it granted
Lewis’s motion for partial summary judgment on this issue. The court went on to deny
the Travises’ motion to quiet title to Segment 2. It determined that title was not
justiciable solely from the record and ordered that the the question of title as to Segment
2 move to a jury trial. In so doing, the court noted that “all current surveys of record
place the legal description [of the boundary] in the middle of the roadway as to both
segments of the disputed property.” It found that Lewis could prevail, if at all, only by
prosecuting a claim of adverse possession to the disputed Segment 2, and a jury trial was
ordered on that issue.
Trial on the matter was conducted in Lyon Circuit Court on November 29
and 30, 2005. After proof was heard, the jury determined that Lewis failed to prove title
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to Segment 2 by adverse possession, and it returned a verdict in favor of the Travises on
this issue. The jury also determined that Lewis has trespassed on Segment 2, but
awarded no nominal or compensatory damages arising therefrom.
Lewis then moved for a judgment notwithstanding the verdict. After the
motion was denied, he unsuccessfully sought to alter, amend or vacate the judgment.
Other matters not relevant to the matter before us were reserved for later adjudication,
such as the care and maintenance of the road and the removal of survey pins. This appeal
followed.
Lewis now argues that he was entitled to summary judgment on his claim of
fee simple title to all of the disputed property (Segments 1 and 2), and that he should not
have been made to prove title to Segment 2 by adverse possession. He maintains that the
circuit court incorrectly found that the deeds established the boundary at the centerline of
Old Macedonia Road rather than at its southern edge, and that the court should have
required the Travises - rather than himself - to prove adverse possession as to Segment 2.
Lewis directs our attention to a quitclaim deed from the Compton heirs on July 25, 2005,
purporting to convey to Lewis the strip of land between the centerline of Old Macedonia
Road and the fence row. Relying in part on this conveyance, Lewis seeks an order
vacating the trial judgment and remanding the matter for retrial with the burden on the
Travises to prove title by adverse possession. On cross-appeal, the Travises argue that
Lewis should not have been allowed to assert a claim of adverse possession, and also that
they were entitled to a jury instruction on punitive damages as to Segment 1.
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Having closely examined the written arguments, the record and the law, we
find no error in the circuit court’s denial of Lewis’s motion for summary judgment on his
claim of fee simple title to the disputed realty. As noted above, the circuit court found
that there was no material issue of fact that all current surveys of record place the legal
description of the boundary in the middle of the roadway. Relying on this finding, the
court concluded that Lewis could prosecute a claim asserting title to the disputed property
- if at all - in the form of a claim of adverse possession. The finding that the boundary
ran down the centerline of the roadway is supported by substantial evidence in the record.
The court noted, and the parties appear to acknowledge, that there exists a “convoluted
and complex maze of deeds, easements and surveys” relating to the resolution of the
boundary issue. In examining this maze, the circuit court relied to great degree on the
chain of title going back to the Compton’s common ownership of what later became the
Travis and Lewis parcels in determining that the boundary ran down the middle of what
was once Old Macedonia Road. Though the parties can reasonably extract more than one
conclusion from this maze of deeds, easements and surveys, the question is whether the
circuit court’s findings of fact and conclusions of law on this issue are supported by the
record. We must answer that question in the affirmative, and accordingly find no error
on this issue.
In their counterclaim, the Travises first argue that the circuit court erred in
allowing Lewis to prosecute a claim of adverse possession in his effort to secure title to
the disputed parcel. Relying on KRS 413.050, they maintain that a claim of adverse
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possession cannot be made against public land without written notice to the county
executive, and argue that even if such a claim could be made that Lewis has failed to
possess the property in an open, notorious and exclusive manner for the statutory period.
This argument is moot in light of the jury verdict - and our affirmation of
the order and judgment reflecting the verdict - that Lewis did not prove adverse
possession as to Segment 2. That is to say, even if we now determined that Lewis should
not have been availed of the opportunity to prosecute a claim of adverse possession, it
would not alter the status quo. Arguendo, even if this argument is not moot, the circuit
court opined that a genuine issue of material fact existed as to whether Lewis adversely
possessed Segment 2, and that the issue could not be summarily disposed of by judicial
action. This finding is sustainable by the record, and as such we find no error on this
issue.
Lastly, the Travises argue that they were entitled to a jury instruction on
punitive damages arising from Lewis’s trespass on the disputed parcel. They maintain
that Lewis knew that the roadway was a public road, but nevertheless engaged in
“intimidating behavior” as to its use on several occasions. The Travises note that they
initiated the action as a claim for trespass and injunctive relief, and argue that punitive
damages are the only means by which they can be made whole for the loss of thousands
of dollars in attorney fees, surveys and court costs.
We find no error. We must first note that it cannot be determined from the
record whether the Travises sought punitive damages as to Segment 1, or Segment 2, or
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both. In fact, it cannot be determined from the record whether they sought punitive
damages at all. Their citation to the record on this issue directs us to the trial order and
judgment rendered on December 15, 2005. That ruling notes that instructions were
tendered and objected to, but does not state that a punitive damages instruction was
sought, nor if so, whether the proposed instruction addressed Segment 1, Segment 2, or
both. If the tendered instructions are contained in the record, the Travises have not cited
to them nor has our examination revealed their existence. Since the court’s division of
the parcel into Segment 1 and Segment 2 was an artificial distinction undertaken for the
purpose of simplifying the adjudication of the claims - as opposed to a distinction made
by Lewis or the Travises - we will assume that if the Travises sought punitive damages, it
related to Lewis’s use of the entire disputed parcel.
The primary consideration in determining whether punitive damages are
applicable is whether “the harm was the result of intentional malice, trickery, or deceit, or
mere accident.” State Farm Mutual Auto Insurance Company v. Campbell, 538 U.S. 408,
123 S.Ct. 1513, 155 L.Ed.2d 585 (2003). This rule, which regards the existence of harm
as a prerequisite to an award of punitive damages, is applicable to boundary disputes.
McConnell v. Stivers, ___ S.W.3d ___, 2007 WL 80897 (Ky. App. 2007) (ordered
published). In McConnell, the tortfeasor repeatedly vandalized a gate to the disputed
parcel by ramming it with his car and using a crowbar and bolt cutter to damage the lock.
The behavior continued even after the trial court ordered the tortfeasor to refrain from
damaging the gate during the pendency of the circuit court proceeding. Relying on
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Campbell, the court went on to find that punitive damages were justified because of the
serious and intentional nature of the harm.
In the matter at bar, the Travises cite to nothing in the record in support of
their claim that Lewis engaged in the intimidating behavior they allege nor the other
alleged resultant harm as arising from his trespass. In order to sustain a claim of
entitlement to punitive damages, there must be an underlying finding that the actor
engaged in wrongful conduct properly characterized as “harm”. Campbell, supra.
Lewis was not found to be a trespasser as to Segment 1. To the contrary,
the circuit court found and so ordered that he was entitled to use Segment 1 to access his
parcel. Since no harm was found resulting from Lewis’s use of Segment 1, there was no
basis for instructing the jury to determine whether that non-existent harm merited an
award of punitive damages.
As to Segment 2, the jury returned a verdict finding that Lewis had
trespassed thereon, but it awarded no nominal damages or compensatory damages. While
an award of compensatory damages is not a prerequisite to an award of punitive damages,
Commonwealth Dept. of Agriculture v. Vinson, 30 S.W.3d 162 (Ky. 2000), the Travises
cite to nothing in the trial transcript or the record evidencing the “intentional malice,
trickery, or deceit” required by Campbell to sustain an award of punitive damages.
While one may reasonably argue that the circuit court would have been justified in
instructing on punitive damages, we cannot go so far as to conclude that it was error not
to make such an instruction. This is especially true in light of the fact that the Travises
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do not cite to even a scintilla of evidence in the record that a punitive damages instruction
was tendered to the circuit court. Accordingly, we find no error.
For the foregoing reasons, we affirm the partial summary judgment and
trial judgment of the Lyon Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT/
CROSS-APPELLEE:
BRIEF FOR APPELLEES/
CROSS-APPELLANTS:
Kenneth W. Humphries
Hopkinsville, Kentucky
Serieta G. Jaggers
Princetown, Kentucky
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