Eugene Phillips v. John Rosquist

RENDERED: JUNE 17, 2021
TO BE PUBLISHED
Supreme Court of Kentucky
2018-SC-0671-DG
EUGENE PHILLIPS APPELLANTS
AND CYNTHIA CLARK
ON REVIEW FROM COURT OF APPEALS
V. NO. 2017-CA-1030-
SCOTT CIRCUIT COURT ACTION NO. 11-CI-888
JOHN ROSQUIST APPELLEES
AND JUDY ROSQUIST
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
AFFIRMING IN PART AND REVERSING IN PART
Years after buying Lot 89, a residential subdivision lot, Eugene Phillips
and Cynthia Clark sued John and Judy Rosquist, the owners of an adjoining
subdivision lot, claiming trespass and recovery of land adversely held and
demanding both injunctive relief and monetary damages.1 More than a decade
earlier and years before Phillips owned Lot 89, Rosquist excavated a portion of
his lot and Lot 89 to allow the water from a lake touching both properties to
cover a portion of both lots. Rosquist’s action, Phillips claimed in his suit,
1 Unless the context indicates otherwise, we will refer to Phillips and Clark
together as “Phillips” for simplicity because Phillips is the first-named appellant,
although Clark alone is grantee in the deed to the residential subdivision lot at issue
in this litigation, Victoria Estates, Lot 89. Also for simplicity, we refer to John and
Judy Rosquist as “Rosquist.”
constituted a trespassory occupation of the portion of Lot 89 submerged by
lake water.
The trial court’s judgment granted Phillips a mandatory injunction,
directing Rosquist to backfill Lot 89 and restore its former contours. The Court
of Appeals vacated the trial court’s judgment on statute-of-limitations grounds.
We accepted discretionary review to decide whether the Court of Appeals
properly reversed the trial court’s mandatory injunction and whether a member
of the three-judge Court of Appeals’ panel that decided this case below should
have been disqualified from hearing the appeal.
We affirm the Court of Appeals’ holding vacating the injunction because
we find that Phillips never received title to the submerged portion of Lot 89.
Without title to—or prior possession of—the submerged portion of the lot, we
hold that Phillips cannot maintain a claim for trespass, for removal from land
or recovery of land adversely held, or to quiet title in himself, differing with the
Court of Appeals as to the applicable statute of limitations. And, while Phillips
validly claims Rosquist’s excavation violated the subdivision’s restrictions,
equitable relief is not available because Phillips acquired title to Lot 89 in its
altered condition and failed, inexplicably, to bring a claim for four years after
discovering Rosquist’s violation of subdivision restrictions and over a decade
after Rosquist completed the excavation of Lot 89. Accordingly, we affirm—on
different grounds—the Court of Appeals’ decision to vacate the trial court’s
injunction. We further conclude the judge on the Court of Appeals’ panel below
2
should have recused himself under the circumstances presented by the record,
although our decision on this issue does not affect the outcome of this case.
I. FACTUAL BACKGROUND
Phillips and Rosquist live next door to each other in a gated community
called Victoria Estates, a residential development with many of its component
subdivision lots clustered around a manmade lake. All lots in Victoria Estates
are platted and subject to mutual restrictive covenants. The community is
governed by the Victoria Estates Homeowners’ Association ("VEHOA"). The
relevant subdivision restrictions forbid "excavation, grading and other site
work," "building," or changing boundary lines except in strict conformity to the
terms of the covenants’ Article XI and prior approval from the VEHOA board of
directors ("Board").
Phillips owns Lot 89 fronting on a street and extending to the margin of
the lake to the rear. Rosquist owns Lot 92, situated similarly between the
street and lake. The parties’ shared boundary line runs from a street to the
lake.
The trial court found that in 1999, Robert Young owned Lot 89, which he
used merely to access the lake to fish. In late 1999, Rosquist excavated the
shoreline of both Lot 89 and 92, lowering the elevation to allow water from the
lake to flow over the excavated area to form a shallow cove and lengthen the
lake frontage of both lots. The cove’s surface area measures about 1,500
square feet and lies mostly over the original surface of Lot 89. Rosquist
completed the excavation during the executory period of his contract to
3
purchase Lot 92. In the new cove, Rosquist floated a dock where he tied his
small rowboat. Rosquist did not seek or obtain approval from the VEHOA for
the excavation, and the dock violated restrictions forbidding unpermitted
improvements, excavation, and construction.
Clark purchased Lot 89 seven years after the excavation—in November
2006. At least a year elapsed before Phillips discovered that Lot 89’s original
contours were changed. Four more years elapsed before Phillips filed the
underlying suit against Rosquist.
Following a bench trial, the trial court ruled that Phillips was not entitled
to damages for trespass under KRS 413.120 because Phillips accepted title to
the lot in its altered state and the original trespassory act by Rosquist affected
the interests of Phillips’s predecessor in title, Mr. Young. The trespass was
complete and permanent at the time Phillips took delivery of the deed to Lot 89,
so Phillips could not maintain an action for trespass as the five-year statute of
limitations for trespass had passed. But the trial court concluded Rosquist's
actions constituted a violation of the subdivision’s restrictive covenants and a
continuing trespass governed by a fifteen-year statute of limitations under
KRS 413.010. So the trial court ruled that Phillips’s claims were timely
asserted and that Phillips was entitled to a remedy “to remove the cloud on
their title and to restore their land to conform to the deed to this property.”
The trial court issued an injunction requiring Rosquist to remove the dock and
backfill the area to restore its original contours at an estimated cost of
$80,000. The Rosquists appealed that judgment.
4
While the case was pending before the Court of Appeals, Phillips moved
then-Court of Appeals Judge Robert Johnson, a member of the three-judge
panel assigned to review his appeal, to recuse from the panel. The facts
supporting the motion will be discussed later, but it suffices now to say that
Phillips averred that Judge Johnson and the Rosquists were friends, Judge
Johnson lived in same subdivision, and that Judge Johnson had extra-judicial
knowledge of facts of the case or had prior contact with Rosquist concerning
the case. While the original recusal motion was pending, Phillips filed an
additional affidavit asserting that Rosquist’s canoe, removed from the dock
under the injunction, had appeared in Judge Johnson’s yard. A unanimous
Court of Appeals denied the motion to recuse.
Ultimately, the Court of Appeals reversed the trial court and vacated the
injunction. The appellate court found Rosquist’s excavation was a permanent
trespass, not a continuing trespass, and subject to the five-year statute of
limitations in either case. Because the permanent trespass was complete in
1999, the time for bringing the trespass action expired in late 2004. The court
also found that Rosquist was not bound by the restrictive covenants because,
although he had signed a contract to purchase Lot 92, he excavated both lots
before legal title had finally transferred at closing. The Court of Appeals thus
found the injunction against Rosquist improper.
Phillips then sought discretionary review in this Court, arguing the Court
of Appeals erred by characterizing his remaining claim as an action for trespass
instead of one to recover land adversely possessed, resulting in the erroneous
5
application of the five-year statute of limitations. Phillips now argues the
character of his action is to recover land, the flooded part of Lot 89, adversely
occupied by Rosquist, and that he has a fifteen-year statute of limitations
entitling him to the injunction granted by the trial court. Phillips also
maintains the Court of Appeals judge should have recused and that the
unfavorable decision proved the judge’s bias in Rosquist’s favor.
II. STANDARD OF REVIEW
This appeal presents for resolution primarily issues of law. We review
these questions of law de novo, respectfully owing no deference to the legal
determinations of the courts below.2 The issues of law raised in this case
include the construction and application of statutes,3 the interpretation and
legal consequence of a purported deed,4 the denial of a motion to recuse,5 and
a critical issue, more or less previously raised by Rosquist, Phillips’s standing
to bring suit.6 A trial court’s decision to issue an injunction is subject to
review for abuse of discretion.7 And finally, while Rosquist disputes some of
2 S. Fin. Life Ins. Co. v. Combs, 413 S.W.3d 921, 926 (Ky. 2013).
3 Overstreet v. Mayberry, 603 S.W.3d 244, 252 (Ky. 2020) (citing Nash v.
Campbell Cnty. Fiscal Ct., 345 S.W.3d 811, 816 (Ky. 2011)) (“[I]n our assessment of the
proper statute of limitations applicable to the causes of action at issue . . . our review
is de novo.”); Wheeler & Clevenger Oil Co. v. Washburn, 127 S.W.3d 609, 612
(Ky. 2004).
4 See Phelps v. Sledd, 479 S.W.2d 894, 896 (Ky. 1972).
5 Abbott, Inc. v. Guirguis, No. 2018-SC-0577-DG, 2021 WL 728860, at *6
(Ky. Feb. 18, 2021).
6 Hidalgo v. Commonwealth, 290 S.W.3d 56, 58 (Ky. 2009).
7 Price v. Paintsville Tourism Comm'n, 261 S.W.3d 482, 484 (Ky. 2008).
6
the trial court’s factual determinations, in this appeal we adopt as conclusive
the trial court’s factual determinations, having found them supported by
substantial evidence.8
III. ANALYSIS
The thrust of Phillips’s substantive appeal at this point is that he is
entitled to recover land adversely held by Rosquist. He maintains that he has
abandoned his trespass claim in the trial court for failure to meet the five-year
statute of limitations, so he no longer seeks to recover damages for trespass as
he avers the Court of Appeals mistook. Still, Phillips claims his recovery action
was timely filed within fifteen years as KRS 413.010 prescribes, since Rosquist
completed the trespassory act in 1999 and Phillips brought suit by 2011.
Phillips also maintains that Judge Johnson should have recused, that conflicts
of interest and his apparent relationship with Rosquist reasonably cast doubt
on the Court of Appeals’ decision vacating the injunction. Thus, Phillips
asserts two primary errors of law on appeal.
First, we find Phillips never had standing to bring a recovery action with
respect to the submerged land because title to that portion never passed to him
under the deed to Lot 89, regardless of which statute of limitations would
apply. And although the Court of Appeals incorrectly found Phillips lacked
standing to bring an action to enforce restrictive covenants, it did observe
correctly that Phillips failed to make a prima facie claim for trespass, barring a
8 Williams v. Commonwealth, 364 S.W.3d 65, 68 (Ky. 2011). See CR 52.01.
7
remedy. Phillips bought the land under the infringing condition and knowingly
delayed bringing suit, making an equitable remedy like this injunction
unavailable under the circumstances. We also agree with Phillips that Judge
Johnson should have recused himself, but find the issue moot, as Judge
Johnson is now a former judge and the substantive issues are clearly
dispositive of this case.
Before proceeding, we acknowledge that, although the issue was raised
at least to the trial court,9 the parties did not specifically argue Phillips’s
standing before this Court. The focus of the parties and Court of Appeals was
on the underlying character of Phillips’s remaining action and its associated
statute of limitations. While on other issues we may ordinarily refrain as a
matter of prudence from disposing of cases based on theories not presented in
the parties’ briefs,10 it is well-settled that we may affirm on any grounds
supported by the record,11 especially on pure matters of law central to the
9 Phillips himself acknowledged this in a “Surreply to Defendants’ Submission
of September 5, 2013” (“The Defendants continue to assert that the Plaintiffs have no
standing to challenge the obvious injury done to their land.”).
10 5 Am. Jur. 2d Appellate Review § 618 (2007) (“It is axiomatic that an
appellate court will generally not review any issue not raised in the court below.”); §
619 (“[But] the court is not prohibited from doing so, and may decide cases on issues
or theories not raised. The rule that a reviewing court will address only issues raised
in the trial court is a limitation on the parties to an appeal and not on the reviewing
court.”) (citations omitted).
11 Combs, 413 S.W.3d 921, 926 (Ky. 2013). Haddad v. Louisville Gas & Elec.
Co., 449 S.W.2d 916, 919 (Ky. 1969) (“It is familiar law, however, that a correct
decision will not be disturbed on appeal merely because it was based on an incorrect
ground or reason, and this is especially so where the correct grounds were presented
to the trial court but not acted upon by it.”).
8
controversy, standing specifically.12 At least where, as here, the facts
controlling the issue are part of the record, clear and undisputed, and
especially where a legal issue is so inextricable from a just outcome under
those facts, the Court is at liberty to settle the matter on its own motion.13 In
order to effect the right outcome, we must take that liberty now with respect to
Phillips’s recovery claim.
A. Phillips lacks standing to recover or quiet title to the submerged
land from the purported adverse possession.
Phillips sees his remaining action before this Court as one to recover the
submerged land, although the precise taxonomy of his claim is debatable given
the unusual manner of Rosquist’s intentional possession.14 Still, the fact
remains that Phillips’s purported entitlement to “recover” the submerged land
rests entirely on a purported ownership interest, that Rosquist is infringing on
Phillips’s exclusive right to possess Lot 89 as it existed years before he took
12See 5 Am.Jur. 2d Appellate Review § 619 (describing the ability of a reviewing
court to address and resolve certain issues on its own motion, specifically standing,
other pure issues of law, and issues affecting the right to maintain the action, even
where the issue was not raised at all).
13 See id.
14 Phillips’s citations address several different forms of redress. For instance, in
his effort to correct the Court of Appeals’ perceived misconception of the claim as an
action for trespass, Phillips cites Wood v. Wingfield, 816 S.W.2d 899 (Ky. 1991),
holding the fifteen-year statute of limitations period under KRS 413.010 applies to
actions to recover real property, that said limitations period runs from when the
owners are ousted from the property, and that Rosquist ousted the owner of Lot 89 in
1999, and Phillips brought suit within fifteen years in 2011. He then cites Justice v.
Graham, 246 S.W.2d 135 (Ky. 1952), holding a challenge to adverse possession must
be brought in fifteen years, and Commonwealth Dep’t of Parks v. Stephens, 407 S.W.2d
711 (Ky. 1966), holding quiet-title claims have a fifteen-year statute of limitations.
Whether Phillips’s claim is ultimately to challenge adverse possession, for ouster, or to
quiet title, and perhaps those claims overlap, all would require Phillips to demonstrate
superior title or possession to the specific land in question, the submerged land.
9
title to the lot. Independent of determining the specific character of Phillips’s
action, the Court cannot avoid an antecedent conclusion that Phillips never
owned the now-submerged area to begin with. Because title to the submerged
land failed to pass to Phillips under the deed conveying Lot 89 to him, he has
no right now to recover land to which he never took title. So, although it was
not raised to either the Court of Appeals or this Court, only to the trial court,
the issue goes to the very justiciability of Phillips’s claim.
It remains not merely an option but a constitutional duty of all courts of
the Commonwealth, including this one, to refrain from resolving controversies
that are not justiciable.15 Standing is a fundamental question going to the
justiciability of a plaintiff’s claim. Where the plaintiff lacks standing to bring a
claim, especially for such a basic reason as lack of title, the claim is not
justiciable,16 and a Kentucky court must, even on its own motion, dismiss
claims to which the claimant or plaintiff lacks standing.17 To the extent the
trial court and the Court of Appeals entertained Phillips’s claims premised on
purported ownership, that was error as a matter of law. Regardless of whether
Phillips’s action is to recover against adverse possession, trespass, or quiet
15Commonwealth of Kentucky, Cabinet for Health & Fam. Servs., Dep't for
Medicaid Servs. v. Sexton, 566 S.W.3d 185, 192 (Ky. 2018).
16 See id. at 196–97 ("Stated more simply, establishing the requisite ability to
sue in circuit court is a necessary predicate for continuing that suit in appellate court.
In this way, the justiciable cause requirement applies to cases at all levels of judicial
relief.").
17 Id. ("We hold that all Kentucky courts have the constitutional duty to
ascertain the issue of constitutional standing, acting on their own motion, to ensure
that only justiciable causes proceed in court, because the issue of constitutional
standing is not waivable.").
10
title, the claim fails as long as it is premised on purported title to the
submerged land.
We conclude Phillips cannot sustain his action to recover for an adverse
possession for lack of legal title or prior possession to said land. Kentucky
sources are hardly available expressly stating that challenges to another’s
adverse possession like Phillips’s require the claimant have a superior right of
possession, whether derived from title or prior possession. The assumption is
so basic and obvious it typically goes without saying: a claimant challenging an
adverse possession premised on prior and superior title cannot bring the claim
without such title or prior possessory interest.18 For the same reason, where
his claim is based on purported title he does not actually have, Phillips may
not enjoin a trespass,19 although Rosquist's excavation can be properly
18 See 3A Ky. Prac. Real Estate Trans. § 19:16 (a plaintiff’s pleading in a
recovery action involves assertion of ownership); 2 Am. Jur. 2d Adverse Possession
§ 13 (2002) (“One claiming title by adverse possession always claims in derogation of
the right of the true owner, admitting that the legal title is in another.”) (emphasis
added).
19 Combs v. Turner, 237 S.W. 37, 38 (Ky. 1922) (stating as a rule that injunction
for a trespass requires right of possession at the time of trespass and the filing of the
suit); 75 Am. Jur. 2d Trespass § 18 (2007) (“The essence of a trespass to real property
is the injury to the right to possession.”). While ownership is not a strict prerequisite
for a trespass claim, the right to possess is. Id. at § 31. See id. at § 29 (“To maintain an
action of trespass, the plaintiff must have had actual or constructive possession of the
real property in question at the time when the alleged injury occurred.”) (citing
Bowman v. Hibbard, 236 S.W.2d 938 (Ky. 1951)). Where the right to sole possession
is premised on a claim to fee title, a trespass plaintiff must actually hold title.
Given the nature of Rosquist's former trespass, we note that a "continuing
trespass" is an exceptional form of trespass not subject to the general possession-
timing rule. This exception is not applicable here, but we anticipate questions about
it. Indeed, an action to enjoin or recover for continuing trespass may accrue to
subsequent owners, though they lacked possession or title when the trespass began
Id. at § 29 (citing Bowman, at 941). But as Phillips concedes in brief and both courts
below already settled, trespass of the character in this case resulted in a permanent
11
characterized as a form of trespass, as the Court of Appeals observed.20 Nor
can Phillips quiet title in his favor without title,21 or alternately eject Rosquist
from an alleged ouster.22
We accept multiple findings of the trial court bearing on the issue of
Phillips’s ownership. First, Robert Young purchased Lot 89 in 1998. Of
course, at that time Lot 89 included as part of its dry ground part of that area
now submerged by the lake. Rosquist initiated and completed his excavation
in late 1999, after he had signed a contract to purchase Lot 92 but before he
had closed on the deal. When Young returned to discover the cove in Spring
structure or alteration to the land itself, the cove, which does not constitute a
continuing trespass. Fererson v. Utils. Elkhorn Coal Co., 313 S.W.2d 395, 400
(Ky. 1958) (a structure is permanent “if the structure is one which may not be readily
remedied, removed, or abated, at reasonable expense, or is of durable character
intended to last indefinitely. . . .”). The permanency of the trespass here takes the
cove out of the category of “continuing trespasses.”
20 This Court has consistently held that flooding caused by permanent
structures or alterations accrue in actions for trespass, running five years from the
completion of the structure. See, e.g., Fitzhugh v. Louisville & N.R. Co., 189 S.W.2d
592, 594 (Ky. 1945) (railroad culvert causing flooding damaging to crops); Louisville
Hydro-Elec. Co. v. Coburn, 110 S.W.2d 445, 447 (Ky. 1937) (river embankment causing
regular flooding and stagnant backwater to accumulate and access-blocking
accumulation); Moore v. Lawrence Cty., 136 S.W. 1031, 1031 (Ky. 1911) (culvert
causing greater waterflow over plaintiff’s land). See also Bickett v. Countrymark Energy
Res., LLC, 250 F. Supp. 3d 309, 318 (W.D. Ky. 2017). As the courts below in this case
correctly observed, the trespass action against Rosquist to recover for this permanent
trespass had to be, though it was not, brought within five years of the time of
completion of the cove in 1999. See KRS 413.120(4).
21 Combs, 237 S.W. 37 at 38 (stating as a rule that a claimant bringing an
action to quiet title must show title to the land in controversy).
22 Engle v. Walters, 282 Ky. 732, 140 S.W.2d 402, 403 (Ky. 1940) (claimant
seeking to eject another must prove superior title); 3A Ky. Prac. Real Estate
Transactions, Essential allegation in ejectment § 20:3 (2020) (“The essential allegations
in ejectment are [t]he title of the plaintiff to certain land.”).
These are the various possession-based causes of action Phillips discusses or
alludes to in his briefs. We need not conclusively determine what the precise nature of
the claim is, or which he chooses. The result is the same in every case.
12
2000, he verbally protested but apparently took no further action against
Rosquist. Clark purchased Lot 89 by general warranty deed in 2006 from
Craig Campbell and Manda Johnson, who apparently owned Lot 89 after Young
did, and nothing suggests they complained or otherwise took action against
Rosquist. Phillips did not discover Rosquist’s excavation until a year after he
bought Lot 89. Phillips brought action four years later in 2011. So no
previous owner of Lot 89, nor VEHOA, nor any other residents in Victoria
Estates brought a legal claim against Rosquist or sought to enforce restrictive
covenants against him until Phillips brought suit just under 12 years later in
2011.
Phillips’s claim is premised on title ownership, but Phillips was not
conveyed title to the submerged land via the deed to Lot 89. The property
description in a deed defines the land that is to be conveyed,23 and a deed
“speaks” at the moment it is delivered to the grantee.24 A specific description
cannot be extended to include property that is outside its terms,25 and the
description of the land based in part, as here, on certain physical features and
monuments is generally understood in relation to physical conditions of the
premises openly and visibly appearing to the parties to a deed at the time of
delivery.26 Under these basic principles of deed construction, the deed
23 26A C.J.S. Deeds § 96 (2021).
24 Williams v. Thomas, 149 S.W.2d 525, 527 (Ky. 1941).
25 26A C.J.S. Deeds § 244 (2021).
26Id. at § 249 ("If the description is doubtful or uncertain, the court will as
nearly as possible assume the position of the parties, and interpret their words in the
light of the circumstances surrounding the transaction. The inquiry should, however,
13
language, interpreted in light of circumstances apparent to Phillips in 2005,
compels the conclusion that the deed never transferred the submerged land to
Phillips.
The 2005 deed describes the land by reference to a recorded plat, as:
“Being all of Lot No. 89 of Victoria Estates . . . as shown on that final
Subdivision Plat which is recorded in Plat Cabinet No. 1861, in the Scott
County Clerk’s Office.” This Subdivision Plat dated October 3, 1997, bears a
visual representation of subdivision lots 68–100 of Victoria Estates in a map,
with boundary lines measured around each lot. The lake is featured
prominently in the map as the centerpiece of Victoria Estates. But as the map
was drawn in 1997 before Rosquist’s excavation, it does not reflect the cove
now extending into Lot 89 and 92 as it would later appear by visual inspection
of the lot. The Plat has a dozen written "Items" applicable to all the lots in the
subdivision. Item 1 incorporates by reference the “covenants, conditions, and
restrictions for Victoria Estates,” and indicates the county clerk’s office where
they are recorded. Item 11 states: “Lot lines along the boundary of the lake are
intended to follow the meanders of the highest pool elevation of the lake
regardless of any metes and bounds.”27
be confined to the time of the execution of the deed without reference to later
circumstances. The parties will be presumed to have been influenced only by facts
they knew of. In particular, there is a presumption that the grantor intended to
convey—and the grantee intended to take—the premises as they openly and visibly
appeared at the time of the conveyance.").
27 (emphasis added).
14
This Item 11 is crucial because it defines the boundaries of lakefront lots
by direct reference to the present dimensions of the lake itself, as a body of
water and visible geographic condition, notwithstanding the lines and
measurements in the mapped-out Subdivision Plat referenced in the deed.
Under the plain language of Item 11, the meanders of the lake shore supersede
any distance representations of Lot 89 in the Subdivision Plat. As the Court of
Appeals observed correctly, the land conveyed to Phillips extends down to and
then terminates at the margin of the lake as it appeared at the time of delivery.
The cove had been physically and visually integrated into the larger body of
water at the time of the conveyance to Phillips, so the deed expressly excluded
the cove and any land beneath it. In fact, while irrelevant to this objective
process of deed interpretation, the record reflects that this is precisely the
subjective impression Phillips was under when he bought the property, that
even he thought Lot 89 extended only to the edge of the cove, then only learned
the cove's origin a year later.
Phillips argues that taking Item 11 like this to its literal end, that the
earth under the cove is no longer part of Lot 89, allows a non-owner to divest
an owner of similar lakefront property by committing an unpermitted
excavation and trespass. Indeed, this is an unusual case. But Phillips's view
wrongly presumes title to the submerged land vested in Phillips at all, and we
have just explained why it never did. Divestment implies a prior vesting.
Perhaps Mr. Young himself would have had a claim of trespass or recovery of
land against Rosquist, having been the title owner in possession of Lot 89 when
15
the land was excavated. But we need not resolve that question because
Phillips is without title to the submerged portion of Lot 89 under the plain
language of the deed. He therefore lacks standing to bring a recovery action or
trespass action.
B. Phillips has standing to enforce restrictive covenants, but the trial
court’s injunction must be vacated as an abuse of discretion.
The courts below devoted greater discussion to whether Phillips was
entitled to recover damages for trespass or to recover land adversely held than
they did to the covenant restrictions. The lower courts more or less treated the
violation as a circumstance evincing a former trespass by Rosquist, and little
more. The Court of Appeals in particular concluded Phillips could not enforce
the covenant restrictions because Rosquist had only an executory interest in
Lot 92 when he dug out the cove but before he had closed on the property and
acquired legal title. Without legal title under deed to Lot 92, it concluded,
Rosquist was not bound by the restrictive covenants.
We find the Court of Appeals’ conclusion lacking. Rosquist had already
contracted to purchase Lot 92, a parcel subject to mutual restrictive covenants
under a common plan. He would then close on the lot later that year after
construction of his residence was finally complete on Lot 92. Generally, when
a party signs a contract to purchase real estate, the purchaser is viewed as
owner of the land in equity, i.e., he has equitable title.28 "It is an ancient but
enduring principle that equity regards as done that which ought to have been
28 See Benjamin v. Dinwiddie, 10 S.W.2d 620, 621 (Ky. 1928).
16
done."29 Where a claimant like Phillips seeks a remedy in equity for violation of
a restrictive covenant, as this injunction to refill the cove would be, such
principles of equity apply. So, at least in equity, Rosquist owned Lot 92 subject
to the restrictions mutually burdening Lots 89 and 92, having obtained
equitable title via contract with constructive notice of the recorded covenants.30
Any demonstrable violations of such covenants are to be treated as if Rosquist
had at that time held full legal title to Lot 92. We therefore reject the Court of
Appeals’ conclusion that Rosquist was not subject to the restrictive covenants
and that Phillips had no claim to make to enforce them.
Among the relevant covenant restrictions, Item 6 of the Subdivision Plat
states: “There shall be no building other than approved private docks permitted
with the designated building setback around the lake, and there shall be no
building erected within the boundary of any drainage, utility, or other
easement.” Item 8 states: “There shall be no earth moving, grading, or other
excavation by any lot owner within the boundaries of any drainage easement
designated as such on this plat, unless the same shall be first approved by the
developer, its successors, or designated assignees.”
Rosquist was found by the trial court as a matter of fact to have engaged
in unapproved excavation and placing an unapproved dock to float on the cove.
29 Johnson v. Potter, 433 S.W.2d 358, 362 (Ky. 1968).
30 20 Am. Jur. 2d Covenants § 256 (2005) (“The enforcement against a
purchaser with notice rests upon the principle that it would be inequitable to permit
such an owner, while enjoying the fruits of and claiming under the grant, part of the
consideration for which the benefit is promised by the covenant, to destroy such
benefit by violating the covenant.”).
17
Both of these acts were done to or over areas of the development that were not
only part of another lot, Lot 89, but land that also happened to be subject to a
drainage and utility easement as shown on the Subdivision Plat. Clearly,
Rosquist violated the covenants of his title. Having established Rosquist's
violation, only Phillips’s ability to enforce the covenant remains in question.
Generally, a landowner benefited by mutual restrictive covenants may
bring an action to enforce the restrictions against any violator in the
community so bound.31 For purposes of establishing standing to enforce the
covenant terms, Phillips’s claim does not require title to that submerged land.
He must only prove that his Lot 89 is benefited by the covenants and Rosquist
is bound.32 That Lot 89 is benefited is evident from a review of the Subdivision
Plat. So Phillips’s last possible claim against Rosquist may be brought as an
action for breach of covenant.
The trial court issued the injunction, at least in part, to enforce the
covenant restrictions. Still, there are limits on the availability of equitable
remedies for breach of restrictive covenants. It has been observed: “It is
contrary to equity and good conscience to enforce rights under restrictive
building covenants where the defendant has been led to suppose by word,
conduct, or silence of the plaintiff that there are no objections to his or her
31 See 21 C.J.S. Covenants § 70 (2021); 20 Am. Jur. 2d Covenants § 252 (“[T]he
right to enforce [a covenant restriction] may be exercised by subsequent grantees
against any purchaser who takes land in the tract with notice of the restrictions, and a
purchaser has such notice whenever the restrictions appear in a deed or in any other
instrument in his or her record chain of title.”).
32 21 C.J.S. Covenants § 70.
18
operations.”33 The issuance of an injunction depends on the equities between
the parties, and where, as here, a great injury will be done to the defendant by
enforcement, with very little benefit, if any, to the plaintiff, we must deny
equitable relief.34 While we need not pass on the applicability of the doctrine of
laches, it still holds true in equity that an application of an injunction to
remove an offending building or structure generally must be made more
promptly after discovery.35
For twelve years before the underlying action, Rosquist enjoyed the cove
without official objection and would only now be forced by injunction to pay
approximately $80,000 to “restore” a relatively small portion of land roughly to
its contours as they were in 1999. This cove was an obvious physical condition
when Clark, the grantee on the deed, purchased Lot 89 from Young. Clark and
Phillips presumably accounted for this in purchasing Lot 89, demonstrated by
their own testimony, having originally understood the property line to run
along the cove’s waterfront boundary. The only negative effect of the cove on
their use and enjoyment of Lot 89 is the shallow cove’s tendency in the
summer’s heat to emit fetid odors and harbor insects, a condition not
unexpected by those who choose to live lakeside. But even after learning the
condition violated the covenant a year after purchase, Phillips delayed some
33 20 Am. Jur. 2d Covenants § 229.
34 Id. at § 269.
35 Id. at § 273.
19
four more years before asserting a claim, a total of five years of non-adversarial
ownership. This four-year delay is without explanation in the record.
Equity cannot be invoked here to restore to Clark and Phillips something
not even they thought they were entitled to when they purchased Lot 89.
Under these circumstances, we cannot readily conceive of an equitable remedy
available to Phillips, whether by injunction or otherwise, fundamentally
because we see no way that Phillips has been meaningfully deprived of the
value of the lot or burdened with any significant liability. A more expeditious
and conscientious enforcement effort would, perhaps, present different
considerations for a court in equity, but such a delay in action and lapse
between interested parties hardly supports such an injunction as the one here
ordered.36 Maintaining the status quo between the parties is the most just
outcome. The trial court’s injunction order was an abuse of discretion, so the
Court of Appeals did not err by vacating it albeit for reasons different from
those we have discussed. Accordingly, Phillips’s enforcement of the restrictive
covenant as to the cove must likewise be dismissed.
C. The Judge of the Court of Appeals should have recused himself
because his impartiality could have reasonably been questioned
under the circumstances.
We only briefly alluded above to the recusal-relevant facts. Before the
Court of Appeals issued its opinion on Phillips’s property claims, Phillips
36 Bewley v. Stieff, 273 S.W.2d 833, 835 (Ky. 1954) (considering a substantial
lapse in time and the remoteness of interested parties significant reasons to deny
equitable relief).
20
sought by separate order for then-Judge Robert Johnson of the Court of
Appeals to recuse.
Judge Johnson was a Scott County Circuit judge when this action was
first brought. He had previously recused himself as a trial judge from another
case involving the VEHOA as a party because his wife, Rebecca Johnson, held
an active position as the president of VEHOA and because of the Johnsons’
apparent association with Rosquist, who sat on the VEHOA Board at the time.
Judge Johnson also lived in Victoria Estates throughout the pendency of the
present action and was Rosquist’s neighbor. Judge Johnson was later
appointed by the Governor to the Court of Appeals. Of course, by then, this
case had made its way to the Court of Appeals via Rosquist’s appeal from the
trial court’s injunction.
Phillips maintains that the conflicts of interest for which Judge Johnson
recused himself as a trial judge were similarly present in this case. But beyond
those alleged conflicts, Phillips points now to several other circumstances he
raised to support recusal. Seemingly uncontradicted circumstantial evidence
indicates that before and during the pendency of the appeal below, several
things happened: as VEHOA president, Rebecca Johnson, was willing to
advocate non-enforcement against Rosquist's covenant violations pending the
appeals; that about two years before Phillips’s motion for Judge Johnson’s
recusal, Johnson had attended a VEHOA meeting in which Phillips raised and
discussed this case; that after the trial court issued the injunction order,
Rebecca Johnson, still the president of the VEHOA, recommended that
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Rosquist appeal the trial court’s order; that according to the undisputed
assertions of another VEHOA Board member, submitted by affidavit, Rebecca
Johnson gave Judge Johnson's personal cell number to Rosquist, apparently
for the purpose of discussing this specific case; and that, in general, the
Johnsons were “obviously” friendly or were, at the very least, closely
acquainted with Rosquist. Perhaps most concerning to Phillips, when Rosquist
was ordered to remove his dock and canoe from the cove, a very similar green
canoe was found at the Johnsons’ residence a week later. This canoe would
appear to be the same one, or at least a very similar one, indicating some sort
of undisclosed knowledge or “ex parte transaction,” as Phillips puts it, between
Rosquist and the Johnsons. Phillips’s motion to recuse was served in late
March 2018. When this canoe was found in Judge Johnson’s yard, Phillips
moved to supplement the motion to recuse with this new evidence. Both the
motion to recuse and the motion to supplement the motion were denied by the
full Court of Appeals panel in July 2018.
In response to Phillips’s motion to recuse, the Court of Appeals
essentially acknowledged the Johnsons were friends with Rosquist and that the
circumstances Phillips raised were “interesting.” But it was satisfied that
Judge Johnson did not recall hearing about the case during the VEHOA
meeting he attended, nor had he specifically talked to Rebecca Johnson or
Rosquist about the case. The friendship was primarily between Rebecca
Johnson and Rosquist through the VEHOA, not with Judge Johnson himself.
And in any case, the Johnsons’ friendship with Rosquist did not create a bias
22
Judge Johnson would actually act upon, and he denied having any prior
knowledge of the case that would prejudice one party or the other. Of course,
because the Court of Appeals then found in favor of Rosquist, Phillips asserts
Judge Johnson’s bias became more or less apparent. Phillips appealed the
denial of the recusal motion to this Court.
We recently revised our standard of review for the denial of a motion to
recuse in Abbott, Inc. v. Guirguis.37 This Court settled on a de novo standard of
review, a change from prior authority applying an abuse-of-discretion
standard.38 Because any judge, however candid, will naturally be loathe to
acknowledge the judge’s own partiality or bias,39 compounded by the judge’s
general duty to hear and decide matters assigned to the judge,40 a reviewing
court gives a motion to recuse fresh eyes, owing no deference to a refusal to
recuse.41
This Court has granted comity to KRS 26A.015(2), which provides:
Any justice or judge of the Court of Justice or master commissioner shall
disqualify himself in any proceeding:
(a) Where he has a personal bias or prejudice concerning a party,
or personal knowledge of disputed evidentiary facts concerning the
proceedings, or has expressed an opinion concerning the merits of
the proceeding; [or]
37 Abbott, Inc. v. Guirguis, No. 2018-SC-0577-DG, 2021 WL 728860(Ky. Feb. 18, 2021).
38 Guirguis, at *5.
39 Id.40 Kentucky Supreme Court (“SCR”) 4.300, Rule 2.7: “A judge shall hear and
decide matters assigned to the judge except when disqualification is required by Rule
2.11 or other law.”
41 See Guirguis, at *5.
23
[…]
(e) Where he has knowledge of any other circumstances in which
his impartiality might reasonably be questioned.
Under review of KRS 26A.015(2)(e) in particular, consistent with SCR 4.300,
Rule 2.11,42 a judge’s alleged bias or partiality is determined under an objective
standard from the perspective of a reasonable observer who is informed of all
the surrounding facts and circumstances.43 The circumstances under review
are generally gathered from the motion, and Guirguis reaffirmed they be stated
in an affidavit of factual allegations.44
In the order denying the motion, the Court of Appeals panel
acknowledged the facts as “interesting,” notwithstanding the motion to
supplement the facts of the green canoe on Judge Johnson’s property. The
Court of Appeals, Judge Johnson sitting, was satisfied with Judge Johnson’s
assurance he had no subjective knowledge or recollection of any interaction
closely related to this matter nor harbored any actual bias. Having denied the
motion to supplement, the court made no reference to the canoe.
We are less troubled by the circumstances, perhaps even in the
aggregate, that Judge Johnson happened to live in the same gated community,
that his wife and Rosquist were officers in a non-party HOA, and that the judge
may have overheard but then forgot when this case was mentioned at an HOA
42SCR 4.300, Rule 2.11(A) states: “A judge shall disqualify himself or herself in
any proceeding in which the judge’s impartiality might reasonably be questioned[.]”
43 Id.44 Id. at *6.
24
meeting two years before. We ultimately require disqualification of Judge
Johnson in this case because an uncontroverted affidavit stated Rebecca
Johnson gave Rosquist the judge’s personal number to discuss this case, that
the order describes the judge and his wife as “friends” with Rosquist, the
affidavit states they are “obviously friends,” not merely acquaintances, and
where the judge or his wife seemingly allowed Rosquist to keep case-related
belongings, a green canoe removed pursuant to an order, for storage at the
judge’s home. Given his denial, we need not question whether Judge Johnson
actually spoke with Rosquist about the case or even knew about the canoe on
his property, or whether this was in fact Rosquist’s canoe, although such
inferences could reasonably arise. We need not wonder whether Judge
Johnson actually possessed material knowledge or recollection of the facts of
this case, because the circumstances reasonably support that inference. We
need not find Judge Johnson harbored an actual bias, strong or subtle, simply
because this case arose from a neighborhood dispute, he was friends with the
party-neighbor, and his wife presumably had some discretion in enforcing the
covenants allegedly violated. We need not necessarily conclude Judge Johnson
himself was party to an “ex parte transaction” to store Rosquist’s green canoe
on his property, because, again, that reasonably appears to be a possibility.
Judge Johnson’s assurance of impartiality might have sufficed under the
more subjective standard of KRS 26A.015(2)(a). But the totality of
circumstances permitted a reasonable conclusion of bias in Rosquist’s favor, so
Judge Johnson was required to recuse under KRS 26A.015(2)(e). The totality
25
of circumstances was enough for a reasonable person to perceive bias or
personal knowledge, at least with respect to Judge Johnson. The nature and
extent of Johnson’s apparent connection to a defendant was just too much.
Although Phillips’s claims fail on independent grounds of law, Judge Johnson
should have recused.
IV. CONCLUSION
Phillips lacks standing to bring his remaining claim to recover land
because he lacks title to the property in question. We dismiss those title-based
claims accordingly. Phillips had standing to enforce the restrictive covenant,
but we affirm the Court of Appeals decision vacating the trial court’s injunction
issued in Phillips’s favor, finding Phillips is not entitled to injunctive relief
under the circumstances. Finally, the Court of Appeals judge should have
recused himself, but his failure to recuse had no effect on the outcome of the
case.
All sitting. All concur.
COUNSEL FOR APPELLANTS:
Neil Duncliffe
Duncliffe Law Office
COUNSEL FOR APPELLEES:
D. Duane Cook
Cook & Watkins, PLC
26