FREEMAN CHADWELL; RONNIE CHADWELL; PATSY CHADWELL; MIKE CHADWELL; HELEN CHADWELL; PATTY AUSTIN; BRENDA KEGLEY; AND HOWARD KEGLEY v. JAMES A. HOWARD; JIMMY RAY HOWARD; EDITH CHADWELL; AND CLYDE CHADWELL
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RENDERED: July 13, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000556-MR
FREEMAN CHADWELL;
RONNIE CHADWELL;
PATSY CHADWELL;
MIKE CHADWELL;
HELEN CHADWELL;
PATTY AUSTIN;
BRENDA KEGLEY; AND
HOWARD KEGLEY
APPELLANTS
APPEAL FROM ROWAN CIRCUIT COURT
HONORABLE WILLIAM MAINS, JUDGE
ACTION NO. 97-CI-00258
v.
JAMES
JIMMY
EDITH
CLYDE
A. HOWARD;
RAY HOWARD;
CHADWELL; AND
CHADWELL
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, GUIDUGLI AND HUDDLESTON, JUDGES.
GUIDUGLI, JUDGE.
Freeman Chadwell, et al., appeal from an
amended judgment of the Rowan Circuit Court in an action
initiated by James A. Howard, et al.,1 to establish a boundary
line between two parcels of real property.
1
We affirm.
Lila Chadwell died during the pendency of this action.
The facts are not in controversy.
On November 6, 1997,
James A. Howard and Jimmy Ray Howard ("the Howards") filed the
instant action in Rowan Circuit Court seeking a declaration and
judgment establishing title and boundary lines to a parcel of
real property.
They named as defendants the adjacent landowners
Freeman Chadwell, individually and as guardian of Lila Chadwell
("the Chadwells").
The Howards sought an order enjoining the
Chadwells from trespassing on the disputed parcel as well as an
order requiring the Chadwells to remove personal property.
The
complaint subsequently was amended to name as additional
defendants Edith and Clyde Chadwell, who sold the parcel to the
Howards.
After settlement negotiations failed, the matter
proceeded to a bench trial on April 22, 1999.
The trial resulted
in the issuance of findings of fact, conclusions of law, and
judgment.
The judgment provided in relevant part that a boundary
line was to be marked between the parcels in conformity with the
findings of fact.
On August 13, 1999, the Howards filed a motion to
alter, amend or vacate the judgment, and it appears that the
parties again attempted to settle the matter.
When the
settlement attempt failed, the Howards advised the court that
they would withdraw their motion to alter, amend or vacate if the
court ruled that the establishment of the boundary line
extinguished any easements on the parcels.
On December 15, 1999,
the court rendered an order stating that no such right of way or
easement existed.
-2-
Thereafter, the Chadwells filed a motion to alter,
amend or vacate the December 15, 1999 order, requesting therein
that the court remove the language referring to the easement
(i.e., that the easement remain enforceable).
On February 4,
2000, the court rendered an order to which the Chadwell now take
issue.
That order located the easement and provided for its
maintenance; located a gate and determined who was to have keys
to the gate; determined that the Howards could erect a privacy
fence and allocated the cost of its construction; and, moved the
property line.
This appeal followed.
The Chadwells now argue that the court acted outside
the scope of its authority by amending the original judgement
more than five months after it had been rendered.
They maintain
that the court lost its authority to amend the judgment when the
Howard's withdrew their August 13, 1999 motion to alter, and that
the court cannot alter a judgment on its own initiative.
They
also argue that the trial court improperly granted additional
relief not requested.
They seek to have the original July 23,
1999 judgment reinstated without amendment.
We have closely examined the record, the law, and the
arguments of counsel, and find no error.
First, we must note
that this claim of error has not been properly preserved.
generally, CR 76.12(4)(c)(iv).
See
As the Howards note, the alleged
error must be precisely preserved and identified in the lower
court, giving the court the opportunity to correct the error.
Elwell v. Stone, Ky. App., 799 S.W.2d 46 (1990).
-3-
Nevertheless, we have reviewed the matter which the
Chadwells now raise, and find no error.
The corpus of their
argument is that the court acted outside the scope of its
authority in amending the February 4, 2000 order and by
addressing in that order extraneous matters like the
establishment of a gate and privacy fence.
We are not persuaded
by this argument because the Chadwells tendered a motion on
December 16, 1999, asking the court for the very amendment of
which they now complain.
Their motion to amend was properly
tendered to the court and properly ruled upon.
They sought and
received an order declaring the easement to be enforceable.
As
for the assertion that the court went beyond what the Chadwells
had sought and improperly addressed matters such as the gate and
fence, these matters are reasonably related to the easement issue
and are clearly within the scope of the court's authority to
bring all such matters to a final conclusion.
The trial court is
presumptively correct in its rulings, City of Louisville v.
Allen, Ky. 385 S.W.2d 179 (1964), and the Chadwells have not
overcome this presumption.
Accordingly, we find no error.
For the foregoing reasons, we affirm the judgment of
the Rowan Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES, JAMES
HOWARD AND JIMMY HOWARD:
Paul Stokes
Morehead, KY
B. R. Salyer
Morehead, KY
BRIEF FOR APPELLEES, EDITH
CHADWELL AND CLYDE CHADWELL:
John J. Ellis
-4-
Morehead, KY
-5-
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