KNIGHT (LARRY J.), ET AL. VS. HAZARD COAL CORPORATION , ET AL.
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RENDERED: SEPTEMBER 5, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
DISCRETIONARY REVIEW GRANTED BY SUPREME COURT:
OCTOBER 21, 2009
(FILE NO. 2008-SC-0735-D)
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-001712-MR
LARRY J. KNIGHT and EILEEN KNIGHT,
his wife, and LARRY E. KNIGHT and
MARY KNIGHT, his wife
v.
APPELLANTS
APPEAL FROM PERRY CIRCUIT COURT
HONORABLE WILLIAM ENGLE III, JUDGE
ACTION NO. 02-CI-00499
HAZARD COAL CORPORATION;
WHITAKER COAL CORPORATION;
PERRY COUNTY COAL CORPORATION;
LOCUST GROVE, INC.;
and TECO COAL CORPORATION
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: DIXON, LAMBERT AND STUMBO, JUDGES.
APPELLEES
DIXON, JUDGE: Appellants, Larry J. Knight, and his wife, Eileen Knight, and
Larry E. Knight and his wife, Mary Knight, appeal from the Perry Circuit Court’s
Findings of Fact, Conclusions of Law and Judgment in this dispute over the use of
a coal haul road. Because we find that the Appellants were denied their right to a
trial by jury, we reverse.
Appellants are the owners of surface land located in Perry County,
Kentucky. Appellees are the owners or assignees of the mineral rights on the same
property, acquired by a severance deed from 1910. At issue is a “coal haul road”
that crosses Appellants’ property and has been used by Appellees to haul coal,
mine supplies, equipment, coal refuse, and personnel.
On September 30, 2002, Appellants filed an action in the Perry Circuit
Court alleging that Appellees:
wrongfully entered upon and mined coal and hauled
other coal across plaintiff[s]’ land, hauled rock, sludge,
and waste from other land across plaintiffs’ land, and
erected power lines upon and across plaintiffs’ land,
otherwise used and utilized plaintiffs’ land, or caused
others to do so, from plaintiffs’ land . . . excavated the
land and destroyed and removed timber there from, all
owned by the plaintiffs, without right, title, claim,
interest or authority, and without consent or permission
from the plaintiffs, and thereby damaged, destroyed and
wasted said land.
Appellants specifically demanded a jury trial on all issues.
Appellees all responded that their right to access the coal haul road
was established by the mineral severance deeds and was further permitted by
prescriptive easement established by years of open, continuous and uninterrupted
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use. As did Appellants, all Appellees, except for Hazard Coal Corporation,
demanded a jury trial in their initial pleading.
In the fall of 2005, all parties filed motions for summary judgment.
The trial court denied each motion on the grounds that there were genuine issues of
material fact. A jury trial was thereafter scheduled for February 24, 2006.
However, during a pretrial conference on February 20, 2006, the trial court
announced, on its own initiative, that it would conduct a bench trial on all issues
except damages. The court explained:
[T]here is no way that a jury can understand that part of it
to even understand the questions, you all have not even
been able to formulate the questions for them to answer.
Therefore what I am going to do is this; I am going to
have Friday a bench trial on the issue of whether or not
that . . . construction of the deed. I’m gonna hear all
evidence on the use . . . Then I’m gonna decide whether
or not . . . the actions of the company have been violated
. . . the conditions of the deed . . . I have to hear all the
facts and then I have to apply the facts to my construction
of the deed. I do not think a jury can do that. You all
have convinced me of that . . . . Then we will have a jury
trial on damages . . . .
I may be wrong, and I’m sorry if I’m not following the
precedent of the Commonwealth of Kentucky, but you
know, you got to realize I’m human, I’m trying to follow
it . . . . You know cite me something in the law that says
I have to be right all the time.
At the conclusion of the bench trial, the trial court ruled in favor of
Appellees, finding that “the preponderance of the evidence shows the continuous,
uninterrupted, notorious, open use by prescriptive easement grew clearly out of the
original scope granted in the original grant.” The trial court did not rule on the
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deed issue, but noted that such was unnecessary due to its finding of a prescriptive
easement. The trial court entered its findings of fact, conclusions of law, and
judgment on March 6, 2006.
Appellants thereafter filed a motion to reconsider, arguing, in part,
that the trial court had violated their right to have all issues decided by a jury. The
trial court denied the motion on July 24, 2007. This appeal ensued.
Appellants argue to this Court that the trial court erred in holding a
bench trial when they clearly demanded a jury trial and did not waive the right to
such during the proceedings. Further, Appellants contend that the trial court erred
in finding the existence of a prescriptive easement. Because we conclude that the
trial court improperly denied Appellants a trial by jury, we necessarily do not reach
the merits of the easement issue.
CR 38.01 clearly states, “The right of trial by jury as declared by the
Constitution of Kentucky or as given by a statute of Kentucky shall be preserved to
the parties inviolate.” Our civil rules further provide that any party may demand a
trial by jury and that such demand “may not be withdrawn without the consent of
the parties.” CR 38.04. The limitations upon a trial by jury are pronounced in
Civil Rule 39.01:
When trial by jury has been demanded . . . the action
shall be designated upon the docket as a jury action.
The trial of all issues so demanded shall be by jury,
unless (a) . . . by written stipulation filed with the court or
by an oral stipulation . . . , consent to trial by the court
sitting without a jury, or (b) the court upon motion or of
its own initiative finds that a right of trial by jury of some
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or all of the issues does not exist under the Constitution
or Statutes of Kentucky.
The trial court herein concluded that a bench trial was necessary
because a jury would be incapable of understanding and answering the questions
the parties had formulated. And, in fact, the former CR 39.01 authorized a bench
trial if, “the court upon motion or of its own initiative finds that because of the
peculiar questions involved, or because the action involves complicated accounts,
or a great detail of facts, it is impracticable for a jury intelligently to try the case.”
CR 39.01(c). However, in Steelvest, Inc. v. Scansteel Service Center, 908 S.W.2d
104 (Ky. 1995), the Kentucky Supreme Court addressed the constitutionality of
subsection (c):
At issue is whether the right to trial by jury, under
the Kentucky Constitution, is contravened by Civil Rule
39.01(c), which permits a trial court to deny this right in
an action at law for damages upon a determination that
the case, because of the peculiar questions involved or
because the action involves complicated accounts, or a
great detail of facts, is impractical for a jury to
intelligently try.
...
The Kentucky Constitution, in actions at law, gives
the litigant an unqualified right to trial by jury. Section 7
of the Kentucky Bill of Rights provides: “The ancient
mode of trial by jury shall be held sacred, and the right
thereof remain inviolate, subject to such modifications as
may be authorized by this Constitution.” To emphasize
the Bill of Rights, Section 26 of the Kentucky
Constitution provides that “[t]o guard against
transgression of the high powers which we have
delegated, We Declare that everything in this Bill of
Rights is excepted out of the general powers of
government, and shall forever remain inviolate; and all
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laws contrary thereto, or contrary to this Constitution,
shall be void.” The broad right of preservation is again
referenced in CR 38.01; i.e., “the right of trial jury as
declared by the constitution of Kentucky or as given by
the statute of Kentucky shall be preserved to the parties
inviolate.”
...
The constitutional term “inviolate” means that the right
to trial by jury is unassailable. Henceforth, legislation
and civil rules of practice shall be construed strictly and
observed vigilantly in favor of the right and is not to be
abrogated arbitrarily by the courts. The constitutional
right to a jury trial cannot be annulled, obstructed,
impaired, or restricted by legislative or judicial action.
...
An argument which authorizes complexity as a basis for
constitutionally removing a case from a jury enjoys no
support. Complexity was not an equitable basis for a trial
without a jury at the time of the adoption of Kentucky's
Constitution and to deny a jury trial is to speculate on a
jury's capabilities. . . .
CR 39.01(c) violates the right to a trial by jury as
guaranteed in Section 7 of the Kentucky Constitution in
at least two respects. It has been used to deny a jury trial
where there are raised issues of law and fact and it has
broadened the range of application beyond cases of
account. Civil Rule 39 shall, therefore, be redrafted as to
be in conformity with Section 7 of the Kentucky
Constitution.
Steelevest, Inc., supra, at 106-109. (Citations omitted).
Although the trial court herein did not specifically cite to former CR
39.01(c), his rationale behind conducting the bench trial mirrors the language of
that rule held to be unconstitutional. As such, we must conclude that the trial court
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erred in denying Appellants the right to a trial by jury. Moreover, as there is no
dispute that Appellants neither withdrew their demand, nor consented to the bench
trial by written or oral stipulation, we find that they did not waive their
constitutional right to a jury trial on all issues. CR 38.04; CR 39.01.
The Perry Circuit Court’s findings of fact, conclusions of law and
judgment are reversed, and this matter is remanded for further proceedings
consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES:
Ronald G. Polly
Whitesburg, Kentucky
Ronald G. Combs
Hazard, Kentucky
Paul R. Collins
Hazard, Kentucky
J. Scott Kreutzer
Charles J. Baird
Pikeville, Kentucky
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