FROM LINCOLN CIRCUIT COURT HONORABLE DAVID A. TAPP, JUDGE
ACTION NO. 08-CI-00228
FOR APPELLANTS: David Russell Marshall Nicholasville,
BEFORE: COMBS, DIXON, AND NICKELL, JUDGES.
and Dorothy Coblentz appeal from the Lincoln Circuit
Court's order, entered May 8, 2014, declaring the deed to
their farm void under KRS 372.070. They also appeal the
subsequent denial of their motion to set aside this order,
entered January 9, 2015, and the final judgment, entered July
27, 2015, following a jury trial. For the reasons set forth
below, we reverse and remand.
begin by noting George Day filed no brief in this appeal.
76.12(8)(c) sets forth penalties for such failure.
If the appellee's brief has not been filed within the
time allowed, the court may (i) accept the appellant's
statement of the facts and issues as correct; (ii) reverse
the judgment if appellant's brief reasonably appears to
sustain such action; or (iii) regard the appellee's
failure as a confession of error and reverse the judgment
without considering the merits of the case.
decision as to how to proceed in imposing such penalties is a
matter committed to our discretion." Roberts v.
Bucci, 218 S.W.3d 395, 396 (Ky. App. 2007). In this
instance, we accept the Coblentzes' statement of the
facts and issues as correct.
Coblentzes and Day own adjoining farms located in neighboring
Lincoln and Garrard Counties. Title to the Coblentzes'
farm was conveyed to them by Roy Lakes, who acquired it from
Charles and Madge Fletcher.
Fletchers originally believed the deed to their farm
encompassed 137 acres, but a survey prior to conveyance
revealed it actually encompassed 194 acres. However, when the
Fletchers conveyed the farm to Lakes, the deed described the
conveyed property as consisting of just 178 acres, excluding
a sixteen-acre parcel, which it indicated was "in
held title to the farm for over eight years, but the record
does not reveal Day and Lakes had any dispute regarding the
approximately forty-one-acre disparity between the 137-acre
farm originally thought to be owned by the Fletchers and the
178-acre farm conveyed to Lakes. However, fourteen years
after Lakes conveyed the 178-acre farm to the Coblentzes, Day
began claiming ownership of the forty-one acres through
adverse possession. Day then filed a complaint seeking to
quiet title to his farm and stating claims for adverse
possession, trespass, theft of timber, and destruction of
boundary markers. Day's complaint also alleged the deed
to the Coblentz farm was void under the champerty statute,
KRS 372.070, which voids a conveyance of land by a grantor to
a grantee when the land is being held adversely by a third
party. The Coblentzes filed an answer denying all of
trial court subsequently entered partial summary judgment
quieting title to Day's farm. The order also declared the
deed to the Coblentz farm void for champerty and granted Day
ownership of a portion of the farm through adverse
possession. No evidence was presented to support Day's
claim he adversely possessed part of the land Lakes deeded to
Coblentzes then moved, pursuant to CR 60.02, to set aside the
order granting partial summary judgment, arguing Day
presented no proof of adverse possession. The trial court
granted so much of the motion awarding Day ownership of a
portion of the Coblentz farm. However, it declined to set
aside its finding the deed was champertous. Day then
voluntarily dismissed his claims for adverse possession and
theft of timber. The Coblentzes prevailed on all remaining
issues at a jury trial. The trial court's judgment
following the jury verdict made the partial summary judgment
entered in Day's favor final and appealable.
Coblentzes argue the trial court erred in declaring their
deed void for champerty because there was no evidence Day
adversely possessed any portion of their land. They also
argue the trial court abused its discretion when it denied,
in part, ...