Opinion
NO. 2010-CA-002253-MR NO. 2011-CA-000033-MR NO. 2011-CA-002115-MR
03-14-2014
EVERETT PATTON AND STELLA PATTON APPELLANTS v. LONNIE STAMPER; EARL LEE STAMPER; COY ALLEN STAMPER; LARRY GALE STAMPER; HOMER GENE STAMPER; QUENTIS N. STAMPER; AND HELEN MAE OWENS APPELLEES
BRIEFS FOR APPELLANT W. Jeffrey Scott Will J. Matthews Grayson, Kentucky BRIEFS FOR APPELLEE: MaLenda S. Haynes Grayson, Kentucky
NOT TO BE PUBLISHED
APPEALS FROM CARTER CIRCUIT COURT
HONORABLE REBECCA K. PHILLIPS, JUDGE
ACTION NO. 74-CI-4528
The record reflects this to be the correct number given to the case when it was opened in 1974, although the trial court and parties incorrectly reference Action No. 74-CI-22528. The discrepancy appears to stem from inclusion of the incorrect case number in the entry of appearance filed by counsel for Patton on October 12, 2006. For unknown reasons, the error was adopted by the trial court and continues to persist. For purposes of correctness, we shall use the number assigned originally by the Carter Circuit Court.
O PINION
AFFIRMING
BEFORE: DIXON, MAZE AND NICKELL, JUDGES. NICKELL, JUDGE: In this consolidated appeal, Everett Patton and his wife, Stella Patton, (collectively "Patton") have appealed from the Carter Circuit Court's findings of fact, conclusions of law, and order entered on October 19, 2007, finding Everett had violated the terms and conditions of a judgment entered in 1984 establishing a passway for the benefit of Lonnie Stamper and his children Earl Lee Stamper, Coy Allen Stamper, Larry Gale Stamper, Homer Gene Stamper, Quentis N. Stamper, and Helen Mae Owens (collectively "Stamper"), and from the November 20, 2010, order denying Patton's motion to alter, amend, or vacate the 2007 order. In a related appeal, Patton challenges orders entered on May 17, 2011, September 20, 2011, and November 14, 2011, which orders respectively denied Patton's motion seeking recusal of the trial judge, granted Stamper the right to repair the easement, and denied Patton's motion to alter, amend, or vacate. Following a careful and thorough review of the voluminous record, the briefs, and the applicable law, we affirm.
These three appeals are the culmination of the latest chapter in a nearly forty-year saga regarding the creation and usage of an easement across Patton's property for the use and benefit of Stamper. A detailed recitation of the lengthy procedural history is unnecessary for purposes of the current appeals, but a truncated version is needed to fully understand and appreciate the depth of the controversy and the issues presented. Lonnie Stamper owned a parcel of land adjacent to John and Tempie Patton which became landlocked with the construction of Interstate 64 in the mid-1950s. Lonnie continued to access his property by way of a road or passway across the Patton's property. Although unclear from the record, sometime in the spring or early summer of 1973, a dispute arose between the neighbors culminating in the Patton's refusal to allow Lonnie to continue using the passway to access his land. Lonnie instituted the original action in the Carter Circuit Court in 1974 seeking damages and an injunction against the Pattons restraining them from interfering with his use of the passway. Lonnie also sought a prescriptive right-of-way easement over and across Patton's property. The trial court issued a temporary injunction in 1976 against Patton.
The case was dismissed and reinstated in 1977 and again in 1978. In October of 1978, Lonnie informed the trial court he had transferred his interest in the property to his children on December 27, 1976, but requested the action be continued in its present state. Lonnie's children were made parties to the action with the filing of an amended complaint on March 17, 1983. John and Tempie Patton, the original defendants—and the parents of Everett Patton—vehemently contested the matter. Sometime in late 1982 or early 1983, Everett and Stella obtained title from John and Tempie to a portion of the land over which the passway traversed. Following in his parent's footsteps, and in violation of the injunction entered in 1976, upon obtaining ownership of the property, Everett immediately blocked Stamper's access across the passway. Based on the change in ownership and Everett's actions, Stamper's motion to join Everett and Stella as parties was granted on February 5, 1983.
Nearly a decade after the filing of the action, the dispute went to trial on May 30, 1984. The sole issue was existence of a right-of-way easement across the lands owned by Patton family members. Following the bench trial and the filing of post-trial memoranda from the parties setting forth their respective positions, the trial court entered its findings of fact, conclusions of law and judgment on July 6, 1984. Therein, the trial court concluded Stamper established title to an easement by prescription across Patton, stating in its conclusions of law
[t]he passway lies over the route where it existed at the commencement of this action and is limited to the extent for which it has been used by [Stamper], that is to say, for passageway of [Stamper] and their invitees by way of foot, horse, wagon, tractor or pick-up truck. Johnson v. Roy, KY. 279 SW 2d 20 (1955). The width of the passway is such as will permit these types of vehicles to cross over.In the judgment portion of the order, the trial court again reiterated the purpose of the passway was for general ingress and egress to the Stamper property and "its nature and width is such as may be passed over by horse, wagon, tractor or pickup." The trial court noted the testimony presented was undisputed regarding the approximate location of the passway and it "being generally approximately eight feet (8') in width" so as to accommodate travel by wagon, tractor or pick-up truck. Patton was permanently enjoined from interfering with Stamper's right to use the passway. Patton timely appealed the decision to this Court which affirmed the trial court in all respects in an unpublished opinion rendered on November 29, 1985.
For the next twenty years, the parties seemed to get along, at least keeping any disputes regarding the easement out of the court system. Sometime in 2005, however, disturbed by what he believed to be an unauthorized use of all-terrain vehicles (ATV's) or "4-wheelers" by Larry Stamper and Homer Stamper to traverse the easement, Everett confronted Larry and informed him such use was not permitted under the 1984 judgment. Undeterred, Larry and Homer continued to use their ATV's on the easement. In response, Everett placed string and cables across the passway, placed posts on either side of the passway set approximately eight feet apart (to the inside) making entry by some vehicles difficult or impossible, and posted numerous "No ATV" signs on the strings and cables stretched across the passway. Because each of the men believed themselves to be acting fully within their rights under the judgment, the dispute grew heated and law enforcement was contacted by both sides on several occasions. Criminal charges were pursued against each, none of which resulted in a conviction.
On September 6, 2006, Larry and Homer moved the trial court for entry of an order holding Everett in contempt for his actions in interfering with their use of the easement and his constant harassment of them while they were utilizing the passway to access their property. After a brief period of discovery, a hearing was held on the motion. Following the hearing, the trial court entered its comprehensive findings of fact, conclusions of law and order on October 19, 2007, wherein it determined Everett had intentionally sought to interfere with use of the easement and to annoy and antagonize Larry and Homer. The trial court held Everett in contempt, sentencing him to serve forty-five days in jail, but permitting him to purge himself of the contempt by immediately removing the poles and cable from the passway and refraining from replacing them. The trial court further limited Everett's travels to the family cemetery located near the easement as it concluded he had coordinated his trips to the cemetery for the sole purpose of harassing and annoying Larry and Homer. The trial court also ordered Everett to "refrain from any attempts to otherwise initiate contact with Larry Stamper, Homer Stamper, or any one of the Plaintiffs, or their successors in title, while the easement is in use." As no motion was before the trial court to determine propriety of the use of ATVs on the easement, it declined to address the matter.
Everett timely moved to alter, amend or vacate the trial court's finding of contempt alleging it had erred in its conclusions and exceeded its authority and Larry responded in opposition. Before any action on the motion was taken, on February 14, 2008, Larry filed a motion for contempt alleging Everett had failed to comply with the directives contained in the October 19, 2007, order, and continued to interfere with the peaceful use and enjoyment of the easement. Everett responded with a cross-motion for contempt and a request to prohibit the Stampers from expanding use of the easement by their use of ATVs. Additional motions were filed by each party through May of 2008, however, no further action was taken by the trial court for over two years. On November 10, 2010, the trial court overruled Everett's motion to alter, amend or vacate, reaffirming its prior rulings in full, but noting the parties had agreed to place the issue regarding ATV usage before the court and indicating a separate order would issue regarding that matter. Patton timely appealed the denial of his motion to alter, amend or vacate to this Court.
The record is silent as to the reasoning for the delay in processing the pending motions.
Case No. 2010-CA-002253-MR.
On December 14, 2010, the trial court entered an order permitting the use of ATVs on the easement. It concluded the 1984 judgment did not prohibit the use of evolved means of personal transportation, and disagreed with Patton's technical, inflexible interpretation of the language of the judgment which would prohibit use of any form of transportation not specifically mentioned therein. The trial court found the use of ATVs did not alter or expand the original use and purpose of the easement, nor did such use create an additional burden on the easement. Patton timely appealed from that order. On motion to this Court, the two appeals were ordered to be consolidated and heard as a single appeal.
Case No. 2011-CA-000033-MR.
Shortly after filing the second notice of appeal, Patton moved the trial court to recuse itself from further consideration of matters presented in the action, alleging an inherent conflict of interest due to previous professional relationships and current familial ties between one of the parties and a paramour of the trial court's secretary. The trial court denied the motion following a hearing, finding grounds for the motion were insufficient to require recusal. Patton continued to vehemently request recusal asserting the same factual grounds, ultimately resulting in the trial court's issuance of a fourteen-page order confirming its decision not to recuse and setting forth its extensive reasoning supporting the determination.
While the battle seeking recusal raged on, Stamper moved the court for an order requiring Patton to remove posts he had set along the easement which prevented the completion of necessary repairs to a washed-out drainage tile underlying a portion of the passway, thereby making it impossible to traverse the entire length of the easement. Stamper subsequently amended his motion to request recognition of a secondary easement for the right to repair and maintain the easement. Following a hearing and the filing of post-hearing legal memoranda by the parties, the trial court granted the motion to repair the easement by order entered on September 20, 2011.
In its order, the trial court noted the drainage tile was not in place when the original action was filed in 1974, but was placed by Patton or someone on his behalf prior to entry of the 1984 judgment. The testimony showed the tile had been washed out during a 2010 flood and the easement was thereby rendered impassable by vehicular traffic. The trial court noted Patton's objection to the repairs and the reasons supporting his opposition. Ultimately, the trial court concluded the proposed repairs to the easement were not unreasonable and completion of the repairs would not unnecessarily injure Patton's property. The trial court concluded the ability to cross this portion of the easement was required for full enjoyment and use of the easement, and the facts and law supported a finding that Stamper had the legal right to repair the easement to the condition it had "been in for decades."
Patton's subsequent motion to alter, amend or vacate the order was denied, and Patton timely appealed the decision to this Court. As the parties and underlying facts are identical in these appeals, for the sake of judicial economy we have chosen to consider all of the arguments presented by the parties and render a single Opinion deciding the issues raised.
Case No. 2011-CA-002115-MR.
CASE NOS. 2010-CA-002253-MR
and 2011-CA-000033-MR
In these consolidated appeals, Patton raises three allegations of error. He first contends the trial court abused its discretion in holding him in contempt and forcing the permanent removal of the poles and cable blocking the passway. Next, he alleges the trial court erred in prohibiting him from visiting his family cemetery when the easement was "in use" except in limited circumstances. Finally, Patton argues the trial court erred in permitting Stamper to operate ATVs on the easement.
First, Patton argues the trial court's decision to hold him in contempt for placing poles on either side of the easement with a cable stretched between them constituted an abuse of discretion. He claims his actions were not in contravention of the 1984 judgment as he did not close or prevent the use of the easement and any interference caused by the poles and cable did not deter Stamper from utilizing the easement. Patton believes his placing the cable is akin to constructing a gate which is permissible under the guidance of Smith v. Price, 312 Ky. 474, 227 S.W.2d 981 (1950), so long as the gate does not unreasonably interfere with the passage across the easement. Further, Patton contends the trial court failed to take into account the impetus for his actions—Stamper's refusal to comply with his demand to cease the unauthorized operation of ATVs on the easement—and erroneously concluded his actions were taken in willful violation of the judgment. See Commonwealth v. Burge, 947 S.W.2d 805, 808 (Ky. 1996). We disagree with Patton's assertions and discern no abuse of discretion on the part of the trial court.
The 1984 judgment specifically and permanently enjoined all parties and their successors "from erecting any fence, wall, or other barrier as to close or prevent the use by either party or their successors in title of the roadway." The judgment further prohibited Patton "from interfering with the Plaintiffs and their successors in title in the exercise of their right of use over the roadway and under this order." While Patton is correct that he did not close the easement, his actions clearly are in contravention of the express language of the judgment as placing an obstacle across the roadway certainly interfered with Stamper's free and unobstructed use of his only means of ingress and egress. The posts and cable Patton erected served no legitimate purpose other than to harass and annoy Stamper in an effort to cajole compliance with Patton's demands. Patton admitted his purpose in constructing the barrier was to obstruct Stamper's use. Under these circumstances, the barrier was therefore impermissible as the trial court correctly concluded.
Patton's assertion that the trial court erred gains no support from a reading of Smith, which dealt with relocation of an existing gate, not construction of a new one. In Smith, the Court set out the standard applicable to the issue at bar when it concluded a "servient owner must permit the free and unrestricted use of the passway by the owner of the dominant estate while the latter must use his rights so as to be as little burdensome as possible to the servient estate." Smith, 227 S.W.2d at 983. The Smith Court permitted the servient owner to relocate a dilapidated gate which had been used to contain his cattle and livestock for many years, the new location of which did not create any additional or unreasonable burden on the dominant owner and was highly beneficial to the servient owner's interests. The instant matter is plainly factually distinguishable. Although Patton contested the use of ATVs on the easement, their use cannot be said to be burdensome on the servient estate. Further, Patton's retaliation in the form of creating barriers to passage where none had previously existed and which added no benefit for anyone—serving only to add a burden to Stamper—was plainly improper and in violation of the clear mandates of the 1984 judgment.
While we agree with Patton that servient owners may have the right to erect fences and gates on their property, such rights are not unfettered. In Mann v. Phelps, 269 Ky. 493, 107 S.W.2d 288 (1937), the Court explained
[u]nless it is expressly stipulated that the way shall be an open one, or it appears from the terms of the grant or the circumstances of the case that such was the intention of the parties, the owner of the servient estate may erect gates across the way, provided they are so located and constructed as to not unreasonably interfere with the right of passage. We may add that such right is recognized, if it appear that the erection of a gate be necessary to protect the servient owner in the full use and enjoyment of his property, or some portion thereof.Id. at 290-91 (internal citations and quotation marks omitted). Further, "[t]here is no reason to believe that the servient owner forfeits his right to protect the land he owns simply because it is crossed by a passway. However, the owner cannot unreasonably interfere with the rights of the holder of the easement." Commonwealth, Dept. of Fish & Wildlife Resources v. Garner, 896 S.W.2d 10, 14 (Ky. 1995) (citing Ball v. Moore, 301 Ky. 779, 193 S.W.2d 425 (1946); Smith, 227 S.W.2d 981). As stated earlier, Patton intentionally placed the posts and cable for no legitimate function apart from harassment and his actions are unmistakably circumscribed by the judgment and unreasonably interfered with Stamper's use of the easement. Under such circumstances, we discern no abuse of discretion in the trial court's finding of contempt based on Patton's willful actions.
Patton next argues the trial court erred in prohibiting him from visiting his family cemetery when the easement was "in use" unless a burial service was scheduled or other exigent circumstances existed. He contends the trial court's order "is too vague for implementation" and constitutes an unfair and arbitrary action by the trial court. We disagree.
Patton cites Garner for the proposition that Kentucky law has historically granted a person the unquestioned right to visit the grave of his ancestors. Id. at 12. He claims this right, coupled with the cemetery's location being approximately 200 feet away from the easement, militates against the trial court's finding that his mere presence at the cemetery when Stamper is using the easement constitutes an interference with Stamper's use. Patton's reliance on Garner fails to appreciate the entirety of the holding that
[t]he right of ingress and egress to a cemetery is to be used for a proper occasion and proper purposes. Hutchinson v. Akin, 5 Ky.Op. 373 (1871). The right of ingress and egress and its dimension is not unqualified. Rose [v. Rose, 314 Ky. 761, 237 S.W.2d 80 (1951)], held that the relatives had a right to use the graveyard for a proper purpose.Garner, 896 S.W.2d at 13.
Patton testified that his visits to the cemetery corresponding with Stamper's use of the easement, were generally done "to keep an eye on" Stamper and not out of reverence for his ancestors. Patton indicated he would drive his truck to the cemetery when he heard Stamper "go down" the easement and would sit and wait for Stamper to "come back out" of the easement before returning home. This testimony does not evidence the visits were for proper purposes or on proper occasions. As the trial court noted, whether Patton's intent was "to annoy, to harass, or to intimidate . . . [his] coordinated and concerted effort to travel to the cemetery at the same time [Stamper] travels to the barn constitutes an effort to interfere with [Stamper's] right to use the easement." Further testimony indicated Stamper used the easement, at most, two to three times weekly. Thus, based on Patton's admitted behaviors and the limited usage of the easement, we cannot conclude the restrictions placed on Patton regarding his visits to the cemetery by the trial court constitute an abuse of discretion. Contrary to Patton's assertion, the language of the trial court's order is clear and unambiguous and in compliance with sound legal principles.
Patton's final allegation of error centers on the trial court's decision to permit the use of ATVs on the easement. As in the trial court, Patton persists in his argument that a strict reading of the 1984 judgment indicates the only modes of permissible transportation across the easement are horse, wagon, tractor or pick-up truck. Thus, he asserts the allowance of ATVs is implicitly prohibited by their exclusion from the specified modes of transportation, and that the trial court erred in not so finding. Again, we disagree.
The 1984 judgment granted Stamper an easement for "general passageway" to and from the landlocked parcel and indicated the nature and width of the passage was such that it could be traversed by the listed modes of transport. The issue, then, is whether the prescriptive right acquired by Stamper is sufficiently broad to include passage by more modern means of transportation. We believe it is.
A prescriptive easement "is limited by the purpose for which it is acquired and the use to which it is put for the statutory period." Williams v. Slate, 415 S.W.2d 616, 617-18 (Ky. 1966) (citations omitted). See also Thomas v. Holmes, 306 Ky. 632, 208 S.W.2d 969 (1948) (nature and extent of easement must be determined in light of its purposes).
The owners of the easement and the servient estate have correlative rights and duties which neither may unreasonably exercise to the injury of the other. Higdon v. Kentucky Gas Transmission Corp., Ky., 448 S.W.2d 655 (1969). The use of an easement must be reasonable and as little burdensome to the landowner as the nature and purpose of the easement will permit. Horky v. Kentucky Utilities Co., Ky., 336 S.W.2d 588 (1960). Cf. Farmer v. Kentucky Utilities Co., Ky., 642 S.W.2d 579 (1982).Garner, 896 S.W. 2d at 13-14. In light of these authorities, Patton's contentions ring hollow.
Based on the record before us, we discern the passway here has historically been used for normal rural transportation and farming purposes. This interpretation is entirely consistent with the language included in the 1984 judgment. The record is devoid of any indication that the use of ATVs on the easement constitutes a new or expanded function, nor that their use places additional burdens on the servient estate. In fact, Patton's contention is supported only by his rigid and inflexible reading of the judgment. "As the passage of time creates new needs and the uses of property change, a normal change in the manner of using a passway does not constitute a deviation from the original grant, and modern transportation uses are not restricted to the ancient modes of travel." Cameron v. Barton, 272 S.W.2d 40, 41 (Ky. 1954) (citation omitted). Although Cameron involved an express grant, the quoted language was cited with approval a dozen years later in Williams which concerned a prescriptive easement. We are convinced this is the correct standard to be applied as the trial court noted. Thus, based on the facts presented, we cannot conclude the trial court abused its discretion or misinterpreted the law in permitting the use of a modern mode of transportation to be utilized on the easement consistent with the uses and purposes under which the prescriptive right was first acquired. There was no error.
CASE NO. 2011-CA-002115-MR
In this separate appeal, Patton presents three purported errors in seeking reversal. First, he alleges the trial court erred in granting Stamper's request to repair the easement, ordered him to remove poles set along the edge of the easement, and prohibited him from interfering with the repair work. Next, he contends the trial court failed to recognize the potential damage to his property attendant with the repair work and failed to place restrictions on how such repairs were to be accomplished so as to alleviate any such risks. Finally, Patton argues the trial court abused its discretion when it denied his motion to recuse from further consideration of the case. As the first two allegations of error are closely related, we shall consider them jointly, while separately addressing the recusal issue.
Patton generally disagrees with the trial court's decision to permit repair of the easement and advances a multi-faceted attack in support of his argument that the decision was improper. While he grudgingly agrees Stamper has the right to repair the easement under some circumstances which are not unreasonable, he contends replacement of the washed-out drainage tile is circumscribed by the express and implied language of the judgment. Patton testified he would rather have the easement "stay the way it is" and not be repaired because "I don't use it" and that the washing of the tile was "an act of God, not an act of me." He believes the evidence showed the easement was passable on foot or horseback, indicating Stamper failed to prove the repair was necessary to permit him to continue using the easement, and the mere inability to traverse the passway with a tractor or other vehicle constituted an insufficient reason to permit replacement of the drain tile. These statements are indicative of Patton's continued general displeasure with Stamper's use of the easement, even twenty years after its judicial creation. After carefully considering Patton's arguments, we disagree with his arguments and assessments of the evidence.
In keeping with his preference for a strict reading of the judgment, Patton alleges replacement of the tile would require an expansion of the easement as heavy equipment necessary to effectuate the repair was not permitted under the terms of the 1984 judgment, and even if such equipment were allowed, it would certainly be wider than the eight-foot width of the easement. Although he presented no evidence supporting his position, Patton contends the repair would constitute an unreasonable burden on his property because of how the repair would have to be done and would severely damage the property. He further believes the failure to place restrictions on how the repairs were to be effectuated would invite Stamper to ruin a substantial portion of his land, while again failing to cite any evidentiary or legal support for his position.
Shifting away from his preference for a strict reading, Patton advances an expansive interpretation of the judgment by alleging it does not guarantee Stamper's ability to use all of the modes of transportation listed. Rather, Patton contends the judgment recognizes multiple modes of transport but does not dictate that the easement remain in a condition to support the use of all of the forms; the capacity to use any of them is sufficient. Hence, Patton argues that although Stamper cannot traverse the easement with a tractor, because he can use the easement on foot or horseback, the terms of the judgment are complied with and the replacement of the drain tile is unwarranted. Thus, it appears Patton prefers a strict reading of the judgment and resultant easement as well as the caselaw and statutory authority he cites when such reading is beneficial to him or detrimental to Stamper, but conversely argues for expansive reading of these documents and authorities when doing so appears to inure to his benefit. Advancing such contrary positions is disingenuous and offensive to logic and generally accepted principles of fairness and justice.
Nevertheless, the majority of Patton's contentions are wholly unsupported by the evidence and the law and appear to be based on his general displeasure with Stamper's use of the easement. Although given the opportunity to do so, Patton failed to present any testimony or evidence regarding the damages he now contends are inevitable. His arguments center on assumptions and supposition but do not address the core issue regarding the right of repair. Although some of these arguments were advanced by counsel below, precious little actual evidence was adduced in their support, and their repeated recitation here—again unsupported by evidence—fails to increase their merit. Bald assertions, lacking any evidentiary support and deficient in legal and logical reasoning, carry no weight and form an insufficient basis for relief.
Our review of the record reveals the trial court was—correctly—primarily concerned with the fundamental right to repair and maintain the easement, rather than the specific manner in which such repairs would be effectuated. It refused to be distracted by the red herring arguments Patton advanced so vehemently—as are we. The trial court appropriately noted that a clear right to maintain an easement exists in the law so long as such repairs do not inflict unnecessary injury on the servient estate. Elam v. Elam, 322 S.W.2d 703 (Ky. 1959); Spalding v. Louisville & N.R. Co., 281 Ky. 357, 136 S.W.2d 1 (1940). Stamper testified he believed the repairs could be completed in one day. He indicated he thought a small bulldozer, trackhoe, or even tractor with a small blade would be sufficient to complete the work if the posts at the entrance to the easement and near the washed-out tile were removed. He stated he wished simply to return the easement to the condition it had been in for many years to enable him to traverse the entire length of the easement. Patton presented no contradictory evidence.
Upon evaluating the testimony presented and the arguments made, the trial court determined Stamper had carried its burden of showing the necessity of the repair; ordered Stamper to bear all costs of the repair; required Stamper to engage the services of a person or entity regularly engaged in the installation of drainage tiles to effectuate the repair; and prohibited Patton from interfering with the repair work. Clearly, permitting necessary repairs for the full and safe use of an easement by the dominant tenement owner is favored under the law, so long as the completion of such repairs does not inflict unnecessary injury upon the servient estate. Spalding, 136 S.W.2d at 3. See also Farmer v. Kentucky Utilities Company, 642 S.W.2d 579 (Ky. 1982). Patton's attempts to distinguish the holdings of Spalding and Farmer are unpersuasive. Although Patton disagrees with the trial court's decision and believes further orders should have been issued, we cannot say the trial court's actions constituted an abuse of its substantial discretion under the facts as presented.
We believe it important to note that the issue before the trial court was the right to repair the easement, not the manner in which any repairs would be undertaken. Clearly, even absent an order from the trial court, Stamper is under an obligation to follow all applicable laws and regulations in completing the repairs and he shall be responsible for any repercussions stemming from his failure to do so. Should Stamper's repair of the easement cause unnecessary damage to Patton's land, we are certain Patton will beat a hasty path to the courthouse seeking redress for his injuries. We are likewise certain Stamper is keenly aware of this probability and will undertake his actions in conformity with such knowledge.
Finally, Patton asserts the trial court erred in refusing to recuse itself from this matter. Patton averred the trial court was under the influence of her former employer, Hon. Robert Miller, who had allegedly displayed hatred and animosity toward Patton when Miller was the Carter County Attorney. He further alleged the trial court delayed ruling on multiple issues and then began entering adverse orders shortly after Miller's failed re-election bid. Patton further bolstered his request for recusal with allegations that the trial court's legal assistant was in a romantic relationship with the son of Miller's wife, Janice. Additionally, Patton charged that Janice was a close cousin to Homer Stamper's wife. Based on these allegations, Patton contended the appearance of impropriety was unmistakable and required recusal.
Although forcefully argued at the outset as the primary reason supportive of recusal, Patton later admitted the alleged familial relationship did not exist, but insisted the two women had been close childhood friends and had ridden the bus together several decades earlier. No evidence of a continuing relationship was offered and a lesser emphasis was placed on this point of contention.
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Following a hearing on March 21, 2011, the trial court orally denied Patton's motion, followed by a written order reflecting same approximately one week later. Upon urging by Patton for further findings related to the matter, on May 17, 2011, the trial court entered a fourteen-page order confirming the denial of the recusal motion which addressed each of Patton's allegations of bias or appearances of impropriety. Undaunted, Patton raised the issue again at the beginning of the May 20, 2011, hearing, now asserting the tenor of the trial court's May 17 order evinced further animosity and bias toward Patton and his counsel. After several minutes of discussion, the matter was laid to rest, only to be revived in this appeal where Patton reiterates the same bases for recusal as advanced below.
KRS 26A.015(2) requires recusal when a judge has "personal bias or prejudice concerning a party" or "has knowledge of any other circumstances in which his impartiality might reasonably be questioned." KRS 26A.015(2)(a) and (e); see SCR 4.300, Canon 3C(1). "The burden of proof required for recusal of a trial judge is an onerous one. There must be a showing of facts of a character calculated seriously to impair the judge's impartiality and sway his judgment." Stopher v. Commonwealth, 57 S.W.3d 787, 794 (Ky. 2001) (citations and internal quotation marks omitted). Patton has failed to meet the requisite burden in this matter.
In detailing her reasons for refusing to recuse, the trial court fully and carefully analyzed all facets of Patton's allegations and determined none rose to the level requiring her to remove herself from hearing the case at bar. We have carefully reviewed the entirety of the record and observed the trial court's patient demeanor and attention to detail in all of its rulings. Although the trial court issued rulings adverse to Patton, we discern no animosity or favoritism in those rulings. In sum, no facts were presented to create an appearance of bias. A party's mere belief the judge will not afford a fair and impartial trial is not sufficient grounds to require recusal. Howerton v. Price, 449 S.W.2d 746, 748 (Ky. 1970). The trial judge's refusal to recuse herself was not error.
For the foregoing reasons, the appealed judgments of the Carter Circuit Court are affirmed in toto.
ALL CONCUR. BRIEFS FOR APPELLANT W. Jeffrey Scott
Will J. Matthews
Grayson, Kentucky
BRIEFS FOR APPELLEE: MaLenda S. Haynes
Grayson, Kentucky