BRASHEAR (JAMES) VS. GRAVES (DONALD C.), ET AL.Annotate this Case
RENDERED: NOVEMBER 26, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
JAMES BRASHEAR, JR.
APPEAL FROM PERRY CIRCUIT COURT
HONORABLE WILLIAM ENGLE III, JUDGE
ACTION NO. 87-CI-00374
DONALD C. GRAVES; AND
GAYLORD STACY T/A
COMMERCIAL FUEL SALES
** ** ** ** **
BEFORE: ACREE AND VANMETER, JUDGES; HENRY,1 SENIOR JUDGE.
VANMETER, JUDGE: James Brashear, Jr. appeals from the Perry Circuit Court’s
orders granting partial summary judgment in favor of appellees Donald C. Graves
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
and Gaylord Stacy T/A Commercial Fuel Sales, and voluntarily dismissing
appellees’ remaining claims. For the following reasons, we affirm.
Appellees filed suit in September 1987 regarding a dispute over a
parcel of land, seeking to quiet title and to obtain damages for trespass and
interference with a contractual relationship, a declaration of their rights, and
punitive damages. The dispute arose after Brashear purchased a tract known as the
Algoma Spur tract at a January 1987 master commissioner’s sale.2 After recording
his deed in February 1987, Brashear notified a Sears store in Hazard that a portion
of its parking lot was located on the Algoma Spur tract, and that if Sears desired to
continue using that portion of the lot, it should sign a lease with Brashear for $650
per month. After Brashear’s demand and subsequent demands went unanswered,
he directed Sears to cease using his property. Thereafter, appellees filed suit
asserting that they or their predecessors in title had entered into a lease with Sears
in August 1976 authorizing Sears to use the easement over the disputed property.
Appellees claimed title to the easement pursuant to a deed recorded in
June 1967 from the Grant Combs heirs to Perry Bowl, Inc. This deed conveyed a
tract of land, not in dispute here, as well as a permanent and exclusive easement in
the form of a covenant running with the land. More particularly, the easement was
for the purposes “of ingress and egress to its adjoining property, and for the
purpose of parking motor vehicles, provided, however, that [Perry Bowl’s] use of
The master commissioner’s sale was held as a result of a partition action the Grant Combs heirs
instituted in Perry Circuit Court in 1965.
said property shall not interfere with the use of the main railroad and spur tracks,
running through said property.” The deed of conveyance further provided that
in the event such of the above described property is no
longer used as a railroad right-of-way, and when the
[Comb heirs] are willing to sell the said above described
property, [Perry Bowl], its heirs and assigns shall
purchase the same for an amount equal to the market
value of said property at that time.
Perry Bowl’s rights were eventually conveyed to appellee Commercial Fuel Sales
through a series of other deeds.
During the proceedings below, the parties submitted cross motions for
partial summary judgment. For his part, Brashear argued that Perry Bowl did not
acquire any easement rights by virtue of the June 1967 deed, as the Combs heirs
had no conveyable interest in that property due to a 1912 agreement made by Grant
and Susan Combs. In that agreement, Grant and Susan Combs combined certain
assets with Slemp Coal Company to form a combination company “for the purpose
of making a lease for mining coal under the combined holdings[.]” Specifically,
Grant and Susan Combs provided “mineral and mineral rights” from some 100
acres of their land which are not at issue here. Additionally, as is relevant here, the
Whereas it may be necessary for the operation of the coal
upon said property that the lessee of the combined
properties have additional place to build houses for
miners and a right of way to the railroad for a coal
railroad, it is agreed that said Combs will rent to said
Coal Company ten acres of land, or as much of said ten
acres as shall be desired by the lessee, on upper end of
his farm below the County road, and next to the railroad
. . . including with this the said railroad right of way for
the coal railroad from the L.&.E. Railroad to a point
where the tipple shall be built in the field below the Pine
tree hollow, and for this ten acres or as much of said ten
acres as shall hereafter be desired by the lessee and
including the right of way, the said Slemp Coal Company
or the lessee of the Combination company shall pay to
the said Combs a rental of Twenty five ($25.00) dollars
per acre, payable annually in advance and continue
during all the time such land is used.
(Emphasis added.) A portion of this land has since become known as the Algoma
Based upon these and other documents in the record, the circuit court
granted partial summary judgment in appellees’ favor in a 1990 order. Although
Brashear moved the court to vacate its partial summary judgment, the court
eventually denied Brashear’s request and further dismissed appellees’ remaining
claims. This appeal followed.
In July 1974, Slemp Coal Company’s successor in title, Grant Coal Company, surrendered this
ten-acre tract to the Combs heirs, excepting 1.93 acres which was granted for Grant Coal
Company, its successors and assigns’ “exclusive benefit . . . as a railroad right of way and also as
a tipple or coal loading site and when the same is no longer used for said purposes, the said
property shall revert to the [Combs heirs], their heirs and assigns.” Pursuant to the terms of the
agreement, the remainder of the 1912 agreement continued “in full force and effect.”
Brashear argued that the circuit court should vacate its 1990 order
since one judge initially presided over the matter and heard the parties’ arguments
while a special judge signed the order granting partial summary judgment. The
record reflects that the latter judge was designated as a special judge by order by
the Chief Regional Circuit Judge to preside “in all matters pending in the Perry
Circuit Court from September 17, 1990, up to and including September 21, 1990.”
Here, Brashear argues that the special judge lacked the authority to
enter the September 19, 1990, order resolving the parties’ summary judgment
motions. We disagree.
KRS 26A.020(1) provides the Chief Justice of the Kentucky Supreme
Court with the authority to designate a regular or retired justice or judge of the
Court of Justice as a special judge when “a judge of any Circuit or District Court
fails to attend, or being in attendance cannot properly preside in an action pending
in the court[.]”4 “The purpose of the use of special judges, acting pro tempore, is
to expedite the handling of litigation, whenever and wherever needed.” Regency
Pheasant Run Ltd. v. Karem, 860 S.W.2d 755, 757 (Ky. 1993) (superseded in part
At one point, the power to appoint retired judges to serve as special judges was vested in the
Chief Regional Circuit Judges. Huntzinger v. McCrae, 818 S.W.2d 613, 615 (Ky.App. 1990).
The Chief Regional Circuit Judge appointed the special judge in the matter sub judice, and
Brashear does not take issue with that aspect of the appointment. However, see Jacobs v.
Commonwealth, 947 S.W.2d 416, 418 (Ky.App. 1997) (by order dated October 8, 1992, Chief
Justice revoked Chief Regional Circuit Judges’ authority to appoint retired judges to serve as
by rule as stated in McDonald v. Ethics Committee of the Kentucky Judiciary, 3
S.W.3d 740, 742 n.1 (Ky. 1999)).
The Regency Pheasant Run Ltd. court held that the use of retired
judges as special judges
is clearly authorized by the Kentucky Constitution, the
Kentucky Revised Statutes and is in the best interest of
the operation of the Kentucky Court of Justice.
“The authority to exercise administrative control of
the judicial branch of government is vested in the
Supreme Court of Kentucky.” Kentucky Utilities v.
South East Coal Company, Ky., 836 S.W.2d 407, 408
(1992). See also Ex Parte Auditor of Public Accounts,
Ky., 609 S.W.2d 682 (1980). From a reading of the
Kentucky Constitution, statutory law and case law it is
beyond cavil that such appointments are proper.
860 S.W.2d at 757-58. The special judge’s appointment in the matter sub judice
was therefore proper, and the order giving him the authority to preside “in all
matters pending in the Perry Circuit Court from September 17, 1990, up to and
including September 21, 1990” certainly encompassed the authority to enter the
September 19, 1990, order.
Still, Brashear argues that the 1990 order was improperly entered
because he was not given notice that the special judge had been appointed to his
case. We disagree.
Brashear relies upon two Kentucky Supreme Court cases in support of
his argument. In Regency Pheasant Run Ltd., 860 S.W.2d at 757, the court held
that the Chief Justice of the Kentucky Supreme Court had the authority to appoint
as a special judge a retired judge who was practicing law. In Kentucky Utilities
Co. v. South East Coal Co., 836 S.W.2d 407, 409 (Ky. 1992), the supreme court
held that South East Coal’s motion for the recusal of a special justice was untimely
when the motion was not filed until after oral argument and the issuance of an
opinion some ten months later. The court also held constitutional its procedure
authorizing the Chief Justice to appoint a special justice to serve on the Kentucky
Supreme Court when one justice was disqualified from participating in the
consideration of a case.5 Simply put, neither of these cases requires that a party be
notified of the assignment of a special judge, and we have found no other authority
requiring such notification. Accordingly, Brashear is not entitled to relief in this
Next, Brashear argues that the 1990 partial summary judgment order
was improperly entered when the special judge signed it without presiding over the
arguments held on the issues. However, pursuant to KRS 26A.030:
Upon the death of a judge, or when from any cause the
office is vacant, or when the judge is absent, his
replacement or successor, no matter how chosen, may
sign any orders of court left unsigned by his predecessor,
the same as his predecessor might have done.
As such, the special judge had the authority to sign the order resolving the parties’
cross motions for partial summary judgment, just as the original judge might have
In Hodge v. Commonwealth, 17 S.W.3d 824, 824 (Ky. 1999), the supreme court explained that
it had since rescinded the policy it found constitutional in Kentucky Utilities Co. v. South East
Brashear also argues that the 1990 order was improperly entered
because the special judge simply signed the opinion and order tendered by the
appellees. We disagree.
Brashear cites several cases in which Kentucky’s appellate courts
have condemned the practice of trial courts adopting findings of fact prepared by
counsel. For example, in Callahan v. Callahan, 579 S.W.2d 385, 387 (Ky.App.
1979), this court reversed the trial court’s judgment, explaining that the adoption of
prepared findings and conclusions both calls into question whether the decisionmaking process is totally under the trial judge’s control, and presents problems for
appellate review. However, the Kentucky Supreme Court subsequently held that
tendered findings and conclusions adopted by a trial court should not be easily
rejected “in the absence of a showing that the trial judge clearly abused his
discretion and delegated his decision-making responsibility[.]” Bingham v.
Bingham, 628 S.W.2d 628, 630 (Ky. 1982). In that case, no reversible error
occurred since the record showed that the trial judge “prudently examined the
proposed findings and conclusions and made several additions and corrections to
reflect his decision in the case.” Id. at 629. More recently, in a case where both
parties submitted proposed findings of fact, as occurred below, the Kentucky
Supreme Court cited Bingham and held simply that it was “not error for the trial
court to adopt findings of fact which were merely drafted by someone else.”
Prater v. Cabinet for Human Resources, Commonwealth of Kentucky, 954 S.W.2d
954, 956 (Ky. 1997).
In any event, the cases Brashear cites are inapplicable in the matter
sub judice as each turns on adequate compliance with CR6 52.01,7 which requires a
trial court to find facts, state conclusions of law, and render a judgment in “all
actions tried upon the facts without a jury or with an advisory jury[.]” Here, since
no trial took place, CR 52.01 does not apply. Rather, the court was required to rule
upon motions for summary judgment. Trial courts are not required to attach
findings or conclusions when they render summary judgment. Wilson v.
Southward Inv. Co., 675 S.W.2d 10, 13 (Ky.App. 1984) (citing CR 52.01, CR
56.01). Indeed, summary judgment should be granted only when no genuine issues
as to any material facts exist. CR 56.03. Further, because summary judgment
involves only legal questions, “an appellate court need not defer to the trial court’s
decision and will review the issue de novo.” Lewis v. B & R Corp., 56 S.W.3d
432, 436 (Ky.App. 2001).
Brashear argues that no easement was granted to Perry Bowl because
not all of the Combs heirs signed the deed which was recorded in 1967. We
The copy of the deed between the Combs heirs and Perry Bowl that
was recorded in 1967 contained only 9 of the 23 grantors’ signatures. However,
Kentucky Rules of Civil Procedure.
Brashear does cite one case which involved a summary judgment motion; however, in that case,
the court did not reach the issue regarding whether the trial court’s findings of fact and
conclusions of law were proper. Stafford v. Board of Education of Casey County, 642 S.W.2d
596, 598 (Ky.App. 1982).
the record reflects that additional grantors signed the deed in 1967. Further, before
the deed was recorded in 1967, still other grantors conveyed their interests in the
property to grantors who did ultimately sign the deed. Brashear does not argue that
fewer than all of the grantors eventually signed the deed. Rather, he argues that the
subsequent recording of the deed with the additional signatures, after appellees
initiated their lawsuit, was too late.
The court in Turner v. McIntosh, 379 S.W.2d 470, 472 (Ky. 1964),
explained that an
unrecorded deed is valid and must prevail over a
subsequent deed if the subsequent grantee knew or had
notice of its existence prior to his purchase, or had
information sufficient to put him on inquiry that would
have led to its discovery upon a search; such information
is deemed equivalent to notice.
Here, the recorded deed with 9 of 23 grantors’ signatures clearly was sufficient to
put Brashear on inquiry that would have led to the discovery of a deed with the
remaining grantors’ signatures. As such, Brashear is not entitled to relief in this
Next, Brashear argues that the Combs heirs had no interest to convey
in the 1967 deed because the 1912 agreement, between Grant and Susan Combs
and Slemp Coal Company, granted “exclusive” surface rights in the property to
their combination company. We disagree.
Under the 1912 agreement, Grant and Susan Combs conveyed to the
combination company the “mineral and mineral rights” from some 100 acres of
their land which are not at issue here. Additionally, they agreed to lease some ten
acres or less, including the acreage now in issue, for the construction of houses for
miners and for a railroad right-of-way. The provision Brashear cites, giving the
holding company “exclusive surface rights for building and mining use[,]” applies
to the larger rather than the smaller tract. There is no exclusivity provision with
regard to the smaller tract.
As no exclusivity provision related to the lease of the ten-acre tract,
nor did the combination company ever assert that one existed, Grant and Susan
Combs and their heirs had the right to use the land in any manner that did not
interfere with the lease. 52 C.J.S. Landlord & Tenant § 543 (West, Westlaw 2008)
(“When a landowner grants a right for the specific, nonexclusive use of property to
another through a lease, the landowner retains the right to continue any other use of
the property that does not interfere with the right granted, and the owner can
transfer the retained right of use to a third party”). Accordingly, in 1967 the
Combs heirs acted within their rights when they conveyed to Perry Bowl a
permanent and exclusive easement, in the form of a covenant running with the land
for the purposes “of ingress and egress to its adjoining property, and for the
purpose of parking motor vehicles[,]” the use of which expressly could not
“interfere with the use of the main railroad and spur tracks, running through said
property[,]” as provided by the 1912 agreement. Thus, Brashear purchased the
property at the Master Commissioner’s sale subject to a valid grant of an easement
running with the land.
Because we hold that the circuit court did not err in its determination
that appellees had an express easement, we need not address whether they acquired
an easement by prescription.
The Perry Circuit Court’s orders are affirmed.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Paul R. Collins