James Phillips v. Gerardo Jaime

RENDERED: AUGUST 18, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0447-MR
JAMES PHILLIPS AND DEBORAH
PHILLIPS APPELLANTS
APPEAL FROM BRECKINRIDGE CIRCUIT COURT
v. HONORABLE BRUCE T. BUTLER, JUDGE
ACTION NO. 12-CI-00026
GERARDO JAIME AND LETICIA
JAIME APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, CALDWELL, AND CETRULO, JUDGES.
CALDWELL, JUDGE: This case concerns a controversy over use of a road which
runs adjacent to the real property of both parties. The Breckinridge Circuit Court
entered partial summary judgment on the question of whether the road was a public
road or private prior to a jury trial. The Phillipses now appeal both the jury
determination and the entry of partial summary judgment. We affirm.
FACTS
In the mid-1990s, Ann Schubert conveyed property (hereinafter
“Schubert lots”) situated in Breckinridge County, Kentucky, to Chris McGehee. In
1995, Chris McGehee executed a contract for deed in favor of Gerardo and Letitia
Jaime for a portion of the Schubert property that included lots 12, 13, and 14.
James and Deborah Phillips obtained lots 5, 7, and 15 in 2004, also via a contract
for deed from McGehee.
The subdivision plat filed in the Clerk’s office indicates a road which
runs through the subdivision, servicing all lots. That road is an unimproved gravel
road.
The Jaimes improved their lots and used the property as their primary
residence while the Phillipses used the property for recreation, having erected
various structures upon it. The two couples were friendly and shared a gravel road
which provided access to the Schubert lots from a paved road. Eventually, both
couples erected gates upon the road close to their properties to prevent access to
the road by anyone other than themselves and their guests.
Over time, the parties began to disagree over the use of the road. The
Jaimes then changed the code to their gate, effectively preventing the Phillipses
from access to the road. The Phillipses could still access their property, however,
via a secondary gravel road that the Jaimes had constructed for that purpose.
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Dissatisfied with this access, the Phillipses filed suit in 2012. The
suit sought access to the road the Phillipses had previously used. The court denied
the Phillipses an injunction they were seeking to require the Jaimes to provide
access through the gate. In answering the Phillipses’ complaint, the Jaimes argued
they satisfied the requirements of adverse possession of the roadway and had a
right, therefore, to legally terminate any easement in favor of the Phillipses.
As the matter proceeded towards trial, the trial court remanded the
court date to await the Kentucky Supreme Court’s decision in Kircheimer v.
Carrier.1 After that opinion was rendered, the Phillipses filed a motion for partial
summary judgment, seeking a ruling regarding the Jaimes’ claim they had obtained
the road by adverse possession. Following a deposition of McGehee, the grantor to
both parties, and the serving of all property owners of the Schubert lots, the trial
court ruled. It found the Jaimes had not held an interest in the property for a long
enough period of time to have gained a property interest in the road through
adverse possession, did not have exclusive use of the road, and did not notice the
other lot title holders as to their intent to gain the road by adverse possession.
Further, the court held the deed to the Jaimes clearly indicated that the road was a
1
446 S.W.3d 224 (Ky. 2014) (The Kentucky Supreme Court determined that the deed
restrictions which indicated that the lot owners would be responsible for maintaining the road as
well as the designation on the subdivision plat of a one-foot strip of land between the road on the
plat and adjoining land not part of the plat by preventing a new road being attached to the plat-
designated road indicated an intention that the road remain private.).
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right of way, and they took subject to that provision. Citing the statute of frauds,2
the court also held that the building of the alternate road was ineffective as there
was no writing to modify the deeds.
The trial court held that the roadway on the subdivision plat was a
public roadway and ordered the Jaimes to remove all gates or obstructions within
the sixty-foot right of way. The court also ordered any other lot owners to do the
same. The Jaimes appealed from this determination. The appeal was dismissed as
interlocutory by this Court.
Back in Breckinridge Circuit Court, the Jaimes sought, and were
granted, permission to file an amended complaint and added other claims. The
claim added, which is relevant to this action, was for harassment. The Jaimes
alleged that the Phillipses harassed them by spraying herbicide on their
landscaping, operating an ATV at a high rate of speed on the Jaimes’ property,
stopping the Jaimes’ guests from accessing their property (sometimes armed with a
firearm), operating motor vehicles in a way to make walking on the road dangerous
to pedestrians, creating excessive noise and dust by the operation of vehicles at an
excessive speed, using vehicles to block what the court had determined was a
public roadway, and failing to remove structures blocking the public roadway. The
Jaimes’ sought damages for the harassment.
2
Kentucky Revised Statutes (KRS) 371.010.
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The parties met with the trial court ahead of trial and the parties
agreed to the jury instructions without objection. The jury found for the Jaimes on
the harassment claims and assessed damages in the amount of $20,000. The
Phillipses sought relief from the trial court via a CR3 59.05 motion, which was
denied. The Phillipses initiated this action, noticing appeal of both the
Breckinridge Circuit Court’s order denying the CR 59.05 motion and the order
entering the final jury trial judgment. We affirm the trial court.
STANDARD OF REVIEW
We review an order of a trial court granting or denying summary
judgment for an abuse of discretion. See Schott v. Citizens Fidelity Bank & Trust
Co., 692 S.W.2d 810, 814 (Ky. App. 1985).
“The test for abuse of discretion is whether the trial judge’s decision
was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Accordingly, a trial
court’s decision is affirmed unless there is a showing of some “flagrant miscarriage
of justice.” Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983).
Trial court determinations on motions for summary judgment pursuant
to CR 56 are reviewed for “whether the trial court correctly found that there were
no genuine issues as to any material fact and that the moving party was entitled to
3
Kentucky Rule of Civil Procedure.
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judgment as a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App.
1996), as modified (Feb. 2, 1996).
With these standards of review in mind, we address the issues of the
case at hand.
ANALYSIS
In the Notice of Appeal, the Phillipses indicated they were appealing
two rulings of the trial court: the March 21, 2022, order denying their motion to
alter, amend, or vacate the entry of the final judgment and the order entering the
final judgment itself, entered on December 2, 2021. For the reasons explained
below, we will only be reviewing the Phillipses’ complaints concerning the final
judgment.
Trial court rulings on motions filed pursuant to CR 59.05 to alter,
amend, or vacate a judgment are inherently interlocutory. If granted, the aggrieved
party would then appeal the newly amended judgment. If denied, as here, the
aggrieved party simply appeals the intact final judgment.
However, we note that even if we did believe the trial
court erred in some fashion in connection with its denial
of CR 59.05 relief, we could not provide a remedy for the
simple reason that we do not have jurisdiction over the
trial court's denial of a CR 59.05 motion. “Orders
denying CR 59.05 relief ‘are interlocutory, i.e., non-final
and non-appealable and cannot be made so by including
the finality recitations.’” Hoffman v. Hoffman, 500
S.W.3d 234, 236 (Ky. App. 2016) (quoting Tax Ease
Lien Investments 1, LLC v. Brown, 340 S.W.3d 99, 103
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(Ky. App. 2011)); see also Mingey v. Cline Leasing
Serv., Inc., 707 S.W.2d 794, 796 (Ky. App. 1986)
(“Unlike a ruling denying a motion for relief under CR
60.02, a ruling on a CR 59.05 motion is not a final or an
appealable order. There is no authority in the rules to ask
for reconsideration of a mere order which rules on a
motion to reconsider a judgment.”) (internal citation
omitted). The Court of Appeals lacks jurisdiction to hear
cases from interlocutory orders. KRS 22A.020; Cassetty
v. Commonwealth, 495 S.W.3d 129, 131 (Ky. 2016).
While there are a few exceptions to that general rule,
none of those exceptions address orders on CR 59.05
motions. Id. at 131 n.2.
Ford v. Ford, 578 S.W.3d 356, 365 (Ky. App. 2019).
We now turn to the Phillipses’ complaints concerning the entry of the
final judgment following the jury trial. The Phillipses complain the trial court
incorrectly determined that the road the parties battled over is a “public” road.
This determination was made by the trial court in 2016 with the entry of partial
summary judgment pursuant to the Phillipses’ request for the entry of same. At the
time it was entered, the judgment was held in abeyance once it was determined not
all owners of properties in the subdivision had been served. Once the court was
satisfied all property owners had been served, the order was made fully effective.
It was the Jaimes who then appealed the entry of summary judgment, with this
Court dismissing the appeal as being interlocutory.
Now, after the jury trial wherein the jury determined that the
Phillipses had engaged in harassing behavior and assessed damages in the amount
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of $20,000, the Phillipses complain about the summary judgment determination
that the road was a public roadway. We agree with the Jaimes that the Phillipses
are now estopped from complaining about the entry of summary judgment which
they requested.
“The doctrine of judicial estoppel . . . can be applied to prohibit a
party from taking inconsistent positions in judicial proceedings.” Hisle v.
Lexington-Fayette Urban Cnty. Gov’t, 258 S.W.3d 422, 434 (Ky. App. 2008)
(citing 28 Am. Jur. 2d Estoppel and Waiver § 74; Colston Inv. Co. v. Home Supply
Co., 74 S.W.3d 759 (Ky. App. 2001)). Parties are estopped from changing their
positions and arguments and thereby dragging down the judicial process. The
“purpose is ‘to protect the integrity of the judicial process’ . . . by ‘prohibiting
parties from deliberately changing positions according to the exigencies of the
moment[.]’” New Hampshire v. Maine, 532 U.S. 742, 749-50, 121 S. Ct. 1808,
1814, 149 L. Ed. 2d 968 (2001) (quoting Edwards v. Aetna Life Ins. Co., 690 F.2d
595, 598 (6th Cir. 1982); United States v. McCaskey, 9 F.3d 368, 378 (5th Cir.
1993)).
Judicial estoppel is not reducible to a simple general formula. New
Hampshire, 532 U.S. at 750, 121 S. Ct. at 1815. Generally, however, three factors
are considered: “(1) whether the party’s later position is clearly inconsistent with
its earlier position; (2) whether the party succeeded in persuading a court to accept
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the earlier position; and (3) whether the party seeking to assert an inconsistent
position would derive an unfair advantage or impose an unfair detriment on the
opposing party if not estopped.” Hisle, 258 S.W.3d at 434-35.
Applying those questions to the facts of the current case, we must
conclude that the Phillipses are estopped from seeking redress from the entry of an
order which they requested from the trial court.4 As to the first and second factors,
at a hearing following the filing of the Phillipses’ motion for summary judgment,
counsel for the Phillipses argued that the Jaimes could not adversely possess the
road as argued by the Jaimes’ counsel. It was the Phillipses’ position that the trial
court should find that the owners of the lots were entitled to use the road as it was
on the subdivision plat. The trial court did not find for the Jaimes in the summary
judgment motion, as they were arguing they had gained ownership of the road via
adverse possession. The Phillipses were satisfied with that holding at the time, and
only now find reason to object to a finding that the road is public.
In fact, counsel for the Phillipses stated “we think the court got it right
in ruling that this was a public road” at the first appearance following the entry of
the ruling granting summary judgment in their favor. They cannot now take a
position inconsistent with that position, which they are now attempting, having
4
No grounds are argued in the motion, nor does the motion indicate the ruling sought. The
motion simply seeks the entry of partial summary judgment.
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succeeded in convincing the trial court that their earlier position (that the road was
public) was the correct one. “[A]s a general proposition . . . where a party assumes
a certain position in a legal proceeding, and succeeds in maintaining that position,
he may not thereafter, simply because his interests have changed, assume a
contrary position . . . .” Davis v. Wakelee, 156 U.S. 680, 689, 15 S. Ct. 555, 558,
39 L. Ed. 578 (1895).
As to the third factor, the Phillipses would impose an unfair detriment
upon the Jaimes as the entire jury trial was premised upon the court’s holding that
the road is public. This matter began with the complaint filed by the Phillipses in
2012. After all the years of litigation, including a jury trial, it would be an unfair
detriment upon the Jaimes, as well as an abuse of judicial resources, to allow the
matter to be undone by allowing the Phillipses to now change their position.
Turning to the jury determination that the Phillipses’ conduct
constituted harassment of the Jaimes and the award for that harassment of $20,000,
the Phillipses argue the Jaimes failed to offer sufficient evidence to support a
finding of harassment, much less the award. We note that no motion for directed
verdict was made by the Phillipses at trial, counsel having acknowledged there
were no grounds.
In order to rely on a claim of insufficiency of the
evidence, a party must preserve it through a motion for
judgment notwithstanding the verdict, which in turn must
be predicated upon a directed verdict motion made at the
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close of all the proof. A mid-trial motion for directed
verdict alone is not adequate to preserve an insufficiency
of the evidence claim. See Steel Technologies, Inc. v.
Congleton, 234 S.W.3d 920 (Ky. 2007). Bryan and
Camenzind have made no indication that either of those
motions was made at trial.
Bryan v. CorrectCare-Integrated Health, Inc., 420 S.W.3d 520, 524 (Ky. App.
2013).
The Phillipses’ having made no motion regarding the sufficiency of
the evidence presented by the Jaimes at trial, they cannot complain now on appeal.
The verdict and award for harassment are affirmed.
CONCLUSION
We affirm the trial court, finding it did not err in entering partial
summary judgment in accord with the Phillipses’ request. The Phillipses cannot
now seek redress for having received the result they once desired. We also affirm
the jury verdict on the harassment count, having found that the Phillipses failed to
move for directed verdict at trial.
ALL CONCUR.
BRIEF FOR APPELLANTS: BRIEF FOR APPELLEES:
Andrew S. Zeh Stephen G. Hopkins
Louisville, Kentucky Hardinsburg, Kentucky
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