Abbott, Inc. v. Guirguis

• Decision Date: 18 February 2021
• Docket Number: 2018-SC-0577-DG
• Parties: ABBOTT, INC., Appellant v. Samuel GUIRGUIS ; Diana P. Herrin; Patsy E. Holland; Homestead Auction & Realty, Inc. ; Michael Russell ; Sharon Russell; James C. Speaks; Darrin G. Tabor; the Estate of Johnny Brown Russell, by and Through Its Executor, Warren K. Hopkins and Dwight E. West, Appellees
• Court: United States State Supreme Court — District of Kentucky

626 S.W.3d 475

ABBOTT, INC., Appellant

v.Samuel GUIRGUIS ; Diana P. Herrin; Patsy E. Holland; Homestead Auction & Realty, Inc. ; Michael Russell ; Sharon Russell; James C. Speaks; Darrin G. Tabor; the Estate of Johnny Brown Russell, by and Through Its Executor, Warren K. Hopkins and Dwight E. West, Appellees

2018-SC-0577-DG

Supreme Court of Kentucky.

FEBRUARY 18, 2021

Rehearing Denied June 17, 2021

COUNSEL FOR APPELLANT: Sheryl Glenn Snyder, Frost Brown Todd LLC, Louisville, Thomas E. Springer, Springer Law Firm, PLLC, Madisonville.

COUNSEL FOR APPELLEE, SAMUEL GUIRGUIS: William Deatherage, Mark Alexander Gilbert, Deatherage Myers & Lackey, PLLC, Hopkinsville.

COUNSEL FOR APPELLEES, DIANA P. HERRIN; HOMESTEAD AUCTION & REALTY, INC. AND DARRIN G. TABOR: Todd Andrew Farmer, Paducah, Farmer & Wright, PLLC.

COUNSEL FOR APPELLEES, PATSY E. HOLLAND; MICHAEL RUSSELL AND SHARON RUSSELL: Pro se.

COUNSEL FOR APPELLEES, JAMES C. SPEAKS AND DWIGHT E. WEST: Richard E. Peyton, Frymire, Evans, Peyton, Teague & Cartwright, Madisonville.

COUNSEL FOR APPELLEE, THE ESTATE OF JOHNNY BROWN RUSSELL, BY AND THROUGH ITS EXECUTOR, WARREN K. HOPKINS: Pro se.

VACATING AND REMANDING

OPINION OF THE COURT BY JUSTICE VANMETER

This case involves two primary issues, mandatory recusal of the trial court judge and the interpretation of deeds. While we hold that the Hopkins Circuit judge in this instance was required to recuse, thereby necessitating our setting aside the judgment, we note that interpretation of deeds and the devolution and ownership of a right of way following a railroad's abandonment are matters of law, which an appellate court is to review de novo. Based on that standard of review, we give direction for that interpretation on remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

The uncontested facts in this case are that prior to 2007, members of the Russell family owned over 1,000 acres of land in Hopkins and Christian Counties. This property had been assembled over time and was comprised of twelve tracts. The property was bisected by a railroad which had been originally constructed in the 19th century. In 2007, the Russells conveyed the property to West and Speaks.¹ Approximately six months later, West and Speaks conveyed the property to Samuel Guirguis. Following Guirguis’ purchase,² he became aware that Abbott, Inc., whose president was William Donan, claimed ownership of the railroad bed. Guirguis filed this action in early 2008 claiming fraud by West and Speaks and the real estate agents involved in the sale. Guirguis’ claim was that they had mispresented, and he had believed, the property was a contiguous tract of 1,066 acres. The action did not originally include Abbott as a party.

Abbott's claim to the railroad bed was initially based on a 2005 quitclaim deed from the Paducah and Louisville Railroad ("P&L") for a four-mile strip of the railroad bed, sixty-six feet wide.³ P&L's predecessors had acquired the right-of-way for the line by multiple deeds, but as to the portion of the right-of-way bisecting Guirguis’ property, no deed has ever been located. P&L, the last railroad company to operate the line, formally abandoned the line in 2003 by filing a Notice of Abandonment with the Surface Transportation Board, formerly the Interstate Commerce Commission.

Following the filing of Guirguis’ action, the trial court granted West and Speaks’ motion to amend their pleadings to add a cross-claim against Abbott. After filing its initial pleading, an answer to the cross-claim, Abbott filed a motion for the circuit judge, James Brantley, to recuse.⁴ The basis for recusal was that in November 2004, William Donan, Abbott's President, discovered future judge Brantley, his son, and another man duck hunting on Abbott's land.⁵ An exchange of letters followed between Donan, Brantley and the other man, in which Donan accused Brantley of trespassing and installing duck blinds on his land. The 2004 events were not, however, the end of the incident. On November 2, 2005, attorney William G. Deatherage, Jr.,⁶ on behalf of Brantley and his son, sent Donan a letter regarding subsequent statements allegedly made by Donan. The letter stated:

Re: Alleged Remarks

Dear Bill:

This letter is sent to you on behalf of James C. (Jim) Brantley and his son, William P. (Will) Brantley, who are represented by this law firm.

According to Mr. Brantley, you allegedly have commented to a prosecutor, and possibly to judges of the Hopkins District Court in Madisonville, Kentucky, that Jim Brantley has encouraged others to trespass on your land, and that Will Brantley was with others when they trespassed on your land. Both Jim Brantley and Will Brantley insist that, if such accusations were in fact made, they are false and not true.

Apparently, this issue has arisen in connection with a criminal case pending in the Hopkins District Court whereby Lester Crook and Randy Orten are accused of criminally trespassing on lands owned or controlled by you and/or by Ray Robinson. According to Jim Brantley, he received information that you reportedly stated that Jim either encouraged Mr. Crook and Mr. Orten to enter the subject lands, or that he had prior knowledge of their intent to do so. Jim also reports that he was informed that you may have accused his son, Will, of being with Mr. Crook and Mr. Orten when they allegedly were on the land, but that Will somehow avoided detection.

Both Jim and Will Brantley are concerned about any false accusations that may have been made concerning them. Each is particularly concerned with preserving his reputation, and each does not want any false accusations or rumors to be circulated about him. Jim and Will Brantley regard all such statements to be defamatory and actionable.

The purpose of this letter is to politely and respectfully request that, if you have made statements similar to those mentioned herein, you cease doing so immediately. Further, if you have made statements similar to those mentioned herein, it is requested that you go to those to whom or before whom the statements were made; that you withdraw the statements; and, that you inform those persons that you had no factual basis for making the statements. On the other hand, if you believe that you do have facts to support any such statements made by you, you are requested to communicate those facts to me without delay.

Neither Jim nor Will Brantley wants this matter to go any further. They merely want the statements to stop, and they want those to whom the statements were made and those who may have heard the statements to be informed that the statements were incorrect.

Your prompt attention to this matter will be greatly appreciated. Should you have any questions or concerns, please contact me.

Donan tersely responded that "truth was an absolute defense."

At a pre-trial conference in January 2009, Judge Brantley described the events as "a disagreement over duck-hunting territory[,]" and denied Abbott's recusal motion. The denial was memorialized in an Order entered January 21, 2009.

While the matter was pending, Abbott obtained a quitclaim deed from the Russells. By this conveyance, the Russells conveyed their interest in the railroad bed, if any.

Eventually, the matter proceeded to a bench trial. By Opinion and Judgment entered in February 2016, the trial court, relying on Illinois Cent. R.R Co. v. Roberts , 928 S.W.2d 822 (Ky. App. 1996), adjudged Guirguis the owner of the property. The trial court's basic rationale was that the railroad merely held an easement for the right-of-way, and upon abandonment of the easement, the adjoining property owners, on either side of the railroad, became fee simple owners to the center of the railroad. Abbott appealed, and the Court of Appeals affirmed. We granted Abbott's motion for discretionary review.

II. STANDARD OF REVIEW

As recently as August 2020, this court reaffirmed the rule that an appellate court reviews a denial of a motion for recusal for an abuse of discretion. Thomas v. Commonwealth , 605 S.W.3d 545, 559 (Ky. 2020) ; Dunlap v. Commonwealth , 435 S.W.3d 537, 587 (Ky. 2013). The oft-quoted 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). In Thomas , we further reaffirmed "[t]he 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.’ " 605 S.W.3d at 559 (quoting Dunlap , 435 S.W.3d at 590 ). A party is required to show "more than ‘a ... mere belief that the judge will not afford a fair and impartial trial[.]’ " Minks v. Commonwealth , 427 S.W.3d 802, 808 (Ky. 2014) (quoting Webb v. Commonwealth , 904 S.W.2d 226, 230 (Ky. 1995)) (citing Howerton v. Price , 449 S.W.2d 746, 748 (Ky. 1970) ).

Our analysis of the history of judicial recusal in this Commonwealth, as well as parties’ arguments in this case, disclose that our appellate decisions have inconsistently set forth the standard of review and failed to appropriately recognize evolving standards set forth by the legislature and this Court within the Code of Judicial Conduct. SCR ⁷ 4.300.

Prior to its 1976 repeal, KRS ⁸ 23.230 provided the only guidance for judicial recusal. The statute addressed the appointment of a special judge and included among its causes "if either party files with the clerk of the court his affidavit that the judge will not afford him a fair and impartial trial." KRS 23.230(1).⁹ Case law interpreting this section "require a statement of facts which not only show bias, prejudice or personal hostility toward the accused, but that such is of a character calculated seriously to impair the judge's impartiality and sway his judgment." Foster v. Commonwealth , 348 S.W.2d 759, 760 (Ky. 1961) ; see also Howerton , 449 S.W.2d at 748 (stating "[a] party's mere belief that the judge will not...