Darrell Bishop v. Hensley

• Decision Date: 08 June 2018
• Docket Number: NO. 2016-CA-001441-MR,2016-CA-001441-MR
• Parties: DARRELL BISHOP APPELLANT v. BENNIE HENSLEY AND PAMELA HENSLEY APPELLEES
• Court: Kentucky Court of Appeals

DARRELL BISHOP APPELLANT
v.
BENNIE HENSLEY AND
PAMELA HENSLEY APPELLEES

NO. 2016-CA-001441-MR

Commonwealth of Kentucky Court of Appeals

JUNE 8, 2018

NOT TO BE PUBLISHED

APPEAL FROM CLAY CIRCUIT COURT
HONORABLE OSCAR GAYLE HOUSE, JUDGE
ACTION NO. 14-CI-00111

OPINION
AFFIRMING

** ** ** ** **

BEFORE: COMBS, J. LAMBERT AND NICKELL, JUDGES.

NICKELL, JUDGE: Darrell Bishop has appealed from the August 31, 2016, judgment of the Clay Circuit Court ordering removal of a gate he had placed across a roadway leading to his house, granting a non-exclusive easement across his property for access to a small family cemetery, and finding he had not proven

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adverse possession of lands adjacent to the roadway. Following a careful review, we affirm.

A family cemetery containing approximately ten graves is located on lands owned by Bennie Hensley and his wife, Pamela Hensley (collectively "Hensley"), off High Knob Road in Clay County, Kentucky. Access to the cemetery is made by way of a gravel road extending from High Knob Road. Most of the gravel road lies on Hensley's land but a small portion crosses a corner of Bishop's lot. Bishop's home lies off the gravel road and his deed grants a right-of-way across Hensley's property for ingress and egress using the gravel road. Bishop's parcel is landlocked, having been carved out of the larger tract now owned by Hensley.¹ Sometime in 2009 or 2010, Bishop began locking a gate across the road, blocking access to the cemetery; the gate is unquestionably located on Hensley's land.

Unable to reach an amicable resolution, Hensley filed this action in 2014 seeking removal of the gate, restoration of ability to use the road to access the cemetery and the remainder of his lands, and the removal of junk cars and other debris placed by Bishop on Hensley's land. Bishop answered the complaint, asserting the road was not a public passway and Hensley had no right of entry on his property for any reason. Nearly two years later, Bishop filed an amended

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answer raising a nebulous claim of adverse possession and asserting Hensley's deed was void for champerty pursuant to KRS² 372.070. The matter proceeded to a bench trial on August 11, 2016.

Following the trial, judgment was entered finding Bishop had a non-exclusive easement for ingress and egress across Hensley's land which he had no right to restrict or impair; family members and relatives of those individuals buried in the graveyard had a non-exclusive easement to use the road to access the cemetery; and Bishop had not proven he held lands adjacent to the roadway adversely. Bishop was ordered to immediately remove the gate blocking the roadway, remove all junk cars and other items located adjacent to the road, and permanently enjoined from closing or blocking the road. This appeal followed.

Bishop advances three arguments in seeking relief. First, he contends adverse possession was adequately proven. Second, he alleges champerty bars any recovery by Hensley. Finally, Bishop argues the grant of a non-exclusive easement for access to the cemetery across his land was improper.

As an initial matter, we note in contravention of CR³ 76.12(4)(c)(v), Bishop does not state how he preserved his arguments in the trial court.

CR 76.12(4)(c)[(v)] in providing that an appellate brief's contents must contain at the beginning of each argument a reference to the record showing whether the issue was preserved for review and in what manner emphasizes the importance of the firmly established rule that the trial

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court should first be given the opportunity to rule on questions before they are available for appellate review. It is only to avert a manifest injustice that this court will entertain an argument not presented to the trial court. (citations omitted).

Elwell v. Stone, 799 S.W.2d 46, 48 (Ky. App. 1990) (quoting Massie v. Persson, 729 S.W.2d 448, 452 (Ky. App. 1987)). We require a statement of preservation:

so that we, the reviewing Court, can be confident the issue was properly presented to the trial court and therefore, is appropriate for our consideration. It also has a bearing on whether we employ the recognized standard of review, or in the case of an unpreserved error, whether palpable error review is being requested and may be granted.

Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012).

Failing to comply with the civil rules is an unnecessary risk the appellate advocate should not chance. Compliance with CR 76.12 is mandatory. See Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010). Although noncompliance with CR 76.12 is not automatically fatal, we would be well within our discretion to strike his brief or dismiss the appeal for Bishop's failure to comply. Elwell. While we have...