PARTIN (RILEY) VS. PARTIN (BYRD), ET AL.Annotate this Case
RENDERED: OCTOBER 24, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE PAUL E. BRADEN, JUDGE
ACTION NO. 02-CI-00161
WHITLEY COUNTY, KENTUCKY;
AND LUCILLE PARTIN
** ** ** ** **
BEFORE: KELLER AND TAYLOR, JUDGES; GUIDUGLI,1 SENIOR JUDGE.
TAYLOR, JUDGE: Riley Partin brings this appeal from a February 23, 2007,
Judgment of the Whitley Circuit Court upon a jury verdict finding that a new
Senior Judge Daniel T. Guidugli sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
roadway constructed by Riley was not comparable to an old roadway as required
under the parties’ settlement. We affirm.
The underlying facts of this case have been succinctly set forth in a
previous opinion of this Court, and we cite to same herein:2
The genesis of this appeal has its origins in a
dispute concerning a right-of-way to a cemetery. [Riley
Partin] is the owner of property upon which a road and
cemetery are located. [Riley] maintained the road
leading to the cemetery was a private road upon which a
right-of-way easement provided ingress and egress to the
cemetery. Conversely, [Byrd and Lucille Partin] claim
the road was a public and/or county road and not a
A civil action ensued concerning the nature of the
roadway. Eventually, the parties entered into a
settlement agreement. The settlement agreement was
recited for the court, and this recitation appears in the
transcript of record. On July 26, 2004, the circuit court
entered a judgment purporting to reflect the parties’
settlement agreement. . . .
The July 26, 2004, settlement judgment recited the parties’ settlement agreement
and provided in relevant part:
IT IS AGREED, ORDERED AND ADJUDGED the
Plaintiff, Riley Partin, shall cause to be conveyed by
Quitclaim Deed to the Fuston Cemetery Association,
Inc., the Fuston Cemetery and the adjoining parking area
as set forth on his plat map made a part hereof and
attached hereto as Exhibit “A”.
IT IS AGREED, ORDERED AND ADJUDGED
the Plaintiff, Riley Partin, shall agree that the Fuston
Cemetery-Laurel Fork Road, County Road Number 1711
(a/k/a 711) in its current location is a county road in the
Riley Partin v. Byrd Partin, Appeal No. 2004-CA-001879-MR rendered May 12, 2006.
Whitley County, Kentucky, road system to be maintained
by Whitley County, Kentucky and said county so agrees.
IT IS AGREED, ORDERED AND ADJUDGED
that in the event the Plaintiff, Riley Partin, desires to
relocate said roadway to said cemetery from the Laurel
Fork Road he may do so by constructing a shorter road
that is suitable, comparable, and acceptable to the
Whitley County Fiscal Court and said Whitley County
Fiscal Court shall adopt said new road as a county road
and shall abandon the current road to said cemetery
which shall revert to the Plaintiff Riley Partin in fee.
Riley did not believe that the settlement judgment accurately reflected the parties’
settlement agreement. As such, Riley filed a Kentucky Rules of Civil Procedure
(CR) 59 motion to alter, amend or vacate the judgment; the circuit court ultimately
denied the CR 59 motion.
Thereafter, Riley filed an appeal to the Court of Appeals. In Appeal
No. 2004-CA-001879-MR, this Court agreed with Riley’s contention that the
settlement judgment did not reflect the parties’ agreement. Specifically, this Court
Having reviewed the transcript of the proceedings,
we agree that the parties never mentioned the parking
area and that [Riley] did not agree to deed a parking area
to the Fuston Cemetery Association. As such, we must
conclude the circuit court committed error by requiring
[Riley] to deed the parking area to the Fuston Cemetery
Association. The parties simply never agreed to such a
condition, and it was error for the circuit court to impose
such a condition upon [Riley].
Considering the entire transcript of the proceedings
and the more relevant portions delineated above, we
believe it was the parties intent that the new roadway be
similar to and comparable with the condition of the old
roadway which it was replacing. We do not believe the
new roadway must be “suitable, comparable, and
acceptable” to the Whitley County Fiscal Court; such
terms are simply outside the parties’ expressed or
reasonably implied intent. Rather, we simply interpret
the parties’ agreement to mean that the new roadway
must be similar to and comparable with the old roadway.
This interpretation is consistent with the parties’ express
intent that the new roadway would serve as a replacement
for the old roadway. See Cantrell Supply, Inc. v. Liberty
Mut. Ins. Co., 94 S.W.3d 381 (Ky.App. 2002).
Thus, this Court reversed the judgment of the Whitley Circuit Court and remanded
the cause for further proceedings for the reasons set out above.
Shortly after this Court’s May 12, 2006, opinion was rendered, Byrd
and Lucille filed a motion in circuit court to assign the case for trial. By order
entered June 15, 2006, the case was set for a jury trial; the trial was conducted on
February 20, 2007. The only question submitted to the jury was:
Do you believe from the evidence that the new
roadway constructed by Riley Partin is similar to, and
comparable with, the old roadway to the Fuston
The jury responded “No.”
Pursuant to the jury’s verdict, the court adjudged that the new
roadway constructed by Riley was “not similar to nor comparable with the existing
original roadway . . . [and, thus] . . . the existing original roadway shall not be
closed or abandoned by the County . . . .” This appeal follows.
During the parties first visit to this Court, we were presented with the
issue of whether the trial court correctly interpreted the intent of the parties in
entering a judgment that accurately reflected the settlement agreement reached by
the parties that had been dictated into the record. The second appeal now before
this Court looks to whether the trial court properly submitted to the jury a dispute
arising in the enforcement of the judgment in light of this Court’s earlier opinion.
The Kentucky Supreme Court recently discussed the review of a
judgment entered pursuant to settlement agreement in Island Creek Coal Co. v.
Wells, 113 S.W.3d 100 (Ky. 2003). Therein, the Court stated:
Given that “‘[s]ettlement agreements are a type of
contract and therefore are governed by contract law,’”
and that “the construction and interpretation of a contract,
including questions regarding ambiguity, are questions of
law to be decided by the court,” we review de novo the
lower courts' interpretations of the contract contained in
the agreed judgment.
Id. at 103 (citations omitted). However, the Supreme Court in Island Creek Coal
was silent as concerns factual disputes arising in the enforcement of a settlement
judgment, including allegations of breach of the settlement terms.
Riley contends that the trial court improperly submitted the case to the
jury because he had not breached the settlement judgment. Riley asserts that the
new roadway was never completed and was never presented to the fiscal court;
thus, no breach of the settlement judgment occurred upon which Byrd and Lucille
could maintain a breach of contract action. As such, Riley maintains that Byrd and
Lucille prematurely sought and the trial court prematurely held a jury trial upon the
claim of breach of the settlement judgment. In his brief, Riley particularly argues:
[B]efore Riley Partin completed the new road and prior
to the new road being offered to Whitley County as being
similar and comparable to the old road, the Appellees,
Lucille Partin and Byrd Partin, requested that the case be
assigned for trial.
Logically, the only claim available to the
Appellees would have been that Riley Partin had
breached his agreement by not constructing a road
similar and comparable to the old road. This issue would
have been ripe for decision if Appellee, Whitley County,
had been offered the new road and rejected it. Since no
offer was made to substitute the new road for the old road
and Whitley County had made no decision (one way or
the other), there was no breach of the agreement.
Therefore, since no breach had occurred, there was no
issue ripe for decision that required a trial.
Riley’s Brief at 4.
To resolve this issue, it is necessary for this Court to undertake a
review of the settlement judgment. It is well-established that construction and
interpretation of a contract are matters of law for the court, and our review
proceeds de novo. Frear v. P.T.A. Industries, Inc., 103 S.W.3d 99 (Ky. 2003);
City of Worthington Hills v. Worthington Fire Protection District, 140 S.W.3d 584
(Ky.App. 2004). Under the settlement judgment, we think it was agreed that the
old roadway was a county road and was maintained by Whitley County. It was
further agreed that Riley could “relocate” the old roadway to the cemetery by
constructing a new roadway that was similar to and comparable with the old
roadway. After construction of the new similar and comparable roadway, the
fiscal court agreed to adopt and maintain said new roadway as a county road.
However, under the settlement judgment, the fiscal court is only required to adopt
the new roadway if said roadway is similar to and comparable with the old
In this case, the record reveals a November 22, 2004, letter from
Riley’s attorney to Byrd and Lucille’s attorney. Therein, it was stated that Riley
“has constructed a new road with gravel, drainage, and a shorter access to the
cemetery. If you would please evaluate this road and let us know whether the road
is ‘suitable, comparable and acceptable’ to your clients.’” From this letter, it is
clear that Riley informed Byrd and Lucille that a new roadway had been
constructed and even quoted from the settlement judgment to determine whether
the new roadway was comparable and acceptable to Byrd and Lucille.
Additionally, in a December 27, 2006, affidavit, Riley stated that he had
“constructed a new road which is similar to and comparable with the old road.”
From the record, it is also evident that Byrd and Lucille did not believe that the
new roadway was comparable to the old roadway and, thus, alleged that Riley had
breached the settlement judgment.
Under the terms of the settlement judgment, we believe that Byrd and
Lucille properly set forth a claim for breach of contract and that it was unnecessary
for the fiscal court to have first rejected the new roadway. Under the settlement
judgment, we think it sufficient that Riley constructed the new roadway, informed
Byrd and Lucille of the completed new roadway, and sought their approval by
citing to the terms of the settlement. Accordingly, we conclude that Byrd and
Lucille properly set forth a claim against Riley for breach of the settlement
Riley next argues that the trial court committed error by submitting
the case to the jury because the issue of whether the new roadway was similar to
and comparable with the old roadway was a question of law for the court to decide.
In support thereof, Riley specifically argues:
The Court of Appeals had ruled that the interpretation
and construction of the parties’ agreement was a question
of law and not a question of fact. The Court of Appeals
also ruled that, under the parties’ agreement, the new
road constructed by Riley Partin need only be similar to
and comparable with the old road. Thus, the issue tried
by the Whitley Circuit Court was an action sounding in
equity rather than an action in law.
Riley’s Brief at 6.
As earlier noted, we agree with Riley that the interpretation and
construction of a contract are matters of law for the court. See Frear, 103 S.W.3d
99. However, in this case, the issue presented to the jury was whether Riley
breached the terms of the settlement judgment; i.e., whether the new roadway was
similar to and comparable with the old roadway. Although we acknowledge that
this case presents a rather unique situation regarding the interpretation of a
judgment that arises from a settlement between the parties, we can find no
authority that would preclude a trial court from submitting a factual dispute arising
from enforcement of the settlement judgment to a jury.3 This is clearly
distinguishable in our opinion from a situation where the trial court merely
interprets the contract terms.
It is well-established that whether a party breached the terms of a
contract generally constitutes an issue of fact for the jury. Scott Farms, Inc. v.
Southard, 424 S.W.2d 574 (Ky. 1968); Schmidt v. Schmidt, 343 S.W.2d 817 (Ky.
1961); Harlan Fuel Co. v. Wiggington, 262 S.W. 957 (Ky. 1924).
In this case, both parties submitted conflicting evidence upon whether
the new roadway constructed by Riley was similar to and comparable with the old
roadway. See Harlan Fuel Co., 262 S.W. 957. Thus, we conclude that whether
Riley breached the settlement judgment presented an issue of fact that was
properly submitted to the jury.
Riley further maintains that the trial court erred by excluding the
testimony of his expert witness, Mark Comparoni.4 For reasons hereinafter stated,
A trial court’s ruling on admission of expert testimony is reviewed
under the abuse of discretion standard. Goodyear Tire and Rubber Co. v.
Thompson, 11 S.W.3d 575 (Ky. 2000). An abuse of discretion occurs when a trial
This opinion in no way limits the rights of the parties to enforce the judgment under Kentucky
Rules of Civil Procedure (CR) 69, CR 70, or CR 71, nor do we exclude the enforcement of
settlement judgments from these rules.
In this case, the record indicates that Riley Partin sought to introduce the testimony of Mark
Comparoni. Comparoni was a licensed surveyor and conducted a survey of the two roadways.
By avowal, Comparoni testified that the old roadway and the new roadway were similar and
comparable and repeatedly referred to a plat he had prepared.
court’s decision is “arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Id. at 581.
By a pretrial order entered June 15, 2006, this case was set for jury
trial on February 20, 2007. Therein, the trial court also ordered the parties to
exchange a list of witnesses who would testify at trial and to produce the exhibits
to be introduced at trial no later than sixty days before trial. It is undisputed that
Riley timely provided a list of witnesses, which included Comparoni, but failed to
produce an exhibit (plat) prepared by Comparoni. Byrd and Lucille moved to
exclude the testimony of Comparoni due to Riley’s failure to comply with the
pretrial order. The trial court agreed and excluded Comparoni’s testimony.
Upon the whole, we cannot say that the trial court abused its
discretion by excluding Comparoni’s testimony. The trial court was obviously
concerned that Riley’s noncompliance with the pretrial order resulted in prejudice
to Byrd and Lucille. By failing to timely produce Comparoni’s plat for inspection,
Byrd and Lucille were deprived of the opportunity to evaluate Comparoni’s
opinion in preparation for trial. And, Riley’s failure to timely produce the plat was
a patent violation of the trial court’s pretrial order. Thus, we hold that the trial
court did not abuse its discretion by excluding Comparoni’s testimony.
Riley also claims that the “verdict is not supported by sufficient
evidence.” Riley, however, failed to state how this issue was preserved for our
review. An appellant is required to state in his brief precisely how each error was
preserved in the trial court for appellate review. CR 76.12(4); Skagggs v. Assad ex
rel. Assad, 712 S.W.2d 947 (Ky. 1986). As an appellate court, we are generally
“without authority to review issues not raised in or decided by the trial court.”
Reg’l Jail Auth. v. Tackett, 770 S.W.2d 225 (Ky. 1989).
As Riley failed to show that this error was preserved for appellate
review, we will not consider the merits of such claim of error in this appeal. Even
if we were to reach the merits thereof, it is clear the jury’s verdict was sustained by
sufficient evidence, especially in view of the fact that the jury visited the premises
to inspect the new and old roadways. See Rust v. City of Newport, 284 Ky. 567,
145 S.W.2d 511 (Ky. 1940); Com., Dept. of Hwys. v. Stocker, 423 S.W.2d 510
Riley finally contends that the trial court erred by failing to follow the
law of the case as established in the prior opinion of this Court in Appeal No.
2004-CA-001879-MR. Riley interprets that opinion as holding “that the old road
to the cemetery (by the terms of the parties’ agreement) did not include a parking
lot or parking area.” Riley believes the trial court further erred by allowing Byrd
and Lucille “to present evidence of a parking area on the old road” and by
preventing Riley from introducing “evidence that no parking existed.” Riley
insists that such error prevented the jury from “accurately compare[ing] the new
and old road[way].”
We recognize that the law of the case doctrine generally provides that
“a final decision of an appellate court is determinative of an issue . . . and a lower
court is bound by the higher court’s decision.” Ranier v. Kiger Ins., Inc., 998
S.W.2d 515, 518 (Ky.App. 1999). However, this court’s previous opinion in
Appeal No. 2004-CA-001879-MR should not be misconstrued as holding that the
old roadway did not include the parking area. Rather, it was merely held that there
was no “agreement” to convey the parking area located at the end of the old
roadway to the Fuston Cemetery Association. We find no error in any
interpretation of the settlement judgment that a new roadway would only be similar
to and comparable with the old roadway if it contained a similar and comparable
parking area. Thus, we reject Riley’s claim that the trial court erred by failing to
follow the law of the case as established in Appeal No. 2004-CA-001879-MR.
For the foregoing reasons, the Judgment of the Whitley Circuit Court
BRIEFS AND ORAL ARGUMENT
BRIEF FOR APPELLEES:
Marcia A. Smith
David O. Smith
W. Henry Lawson
ORAL ARGUMENT FOR
Marcia A. Smith