Ford v. Daugherty

• Decision Date: 12 April 2019
• Docket Number: NO. 2017-CA-001764-MR,2017-CA-001764-MR
• Parties: JOHN B. FORD APPELLANT v. MARSHALL E. DAUGHERTY AND JESSIE LEE DAUGHERTY APPELLEES
• Court: Kentucky Court of Appeals

JOHN B. FORD APPELLANT v. MARSHALL E. DAUGHERTY AND JESSIE LEE DAUGHERTY APPELLEES

NO. 2017-CA-001764-MR

Commonwealth of Kentucky Court of Appeals

APRIL 12, 2019

NOT TO BE PUBLISHED

APPEAL FROM OHIO CIRCUIT COURT

HONORABLE MICHAEL L. MCKOWN, JUDGE

ACTION NO. 10-CI-00530

OPINION

AFFIRMING

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BEFORE: KRAMER, LAMBERT, AND NICKELL, JUDGES.

LAMBERT, JUDGE: John B. Ford has appealed from the September 29, 2017, order of the Ohio Circuit Court denying his motion to set aside an agreed order entered January 26, 2015, related to a real property dispute between him and his neighbors, brothers Marshall E. Daugherty and Jessie Lee Daugherty, Jr. (the Daughertys). We affirm.

The underlying action began with the filing of a petition for declaration of rights, injunctive relief, and monetary damages by the Daughertys against Ford on October 8, 2010. The Daughertys claimed they were owners in fee simple of real estate in Ohio County that they had acquired by deed dated July 19, 2007, and recorded a few days later. The description of the property in the deed was based on the September 2, 2004, survey of Michael Ward. This property had been owned by the Daugherty family for decades; the Daughertys' parents, Jessie and Dorothy, acquired the property by deed in 1969. After their parents' deaths, the Daughertys acquired the property by paying their siblings (the other beneficiaries) their portion of the appraised value of the property. Ford owned an adjoining tract that he had acquired from his parents by general warranty deed dated June 23, 1973, and recorded in early July of that year.

The Daughertys alleged that Ford had wrongfully entered upon their land, had markers placed in the ground where he claimed the boundary line was, and trespassed upon their land, without any right or authority. They claimed Ford had unduly harassed them regarding their use of the land, including making a report of trespass to the police. Finally, they claimed Ford had defaced and damaged timber belonging to them, removed and destroyed their personal property and improvements, and interfered with their use and enjoyment of their property. The Daughertys sought a declaration that they were the sole owners in fee simpleof the real estate described in the exhibits attached to the petition (the deed, the legal descriptions, and the survey plat); an order restraining Ford or his agents from entering their property; and monetary damages, costs, and attorney fees.

Ford filed an answer and counterclaim against the Daughertys on October 25, 2010, in which he also sought a declaration of rights, injunctive relief, and monetary damages. He alleged the Daughertys had wrongfully entered his land, removed trespass warning signs, placed markers in the ground where they claimed the boundary line was located, installed gates to prevent access to his land, and trespassed on his land without any right or authority. Ford also alleged that he and his predecessors in title had adversely possessed the disputed property under a claim of right; had exercised dominion and control of the property for farming, hunting, and timbering; and had paid the ad valorem property taxes. Therefore, Ford claimed to be the owner in fee of the land in Exhibit E to the Daughertys' petition and the boundaries that had been established for more than sixty years. Ford sought a permanent injunction restraining the Daughertys from entering his lands; a judgment determining that the Daughertys had no interest in the boundaries of his land and quieting the title in his name; and monetary damages, costs, and attorney fees. Ford was represented by attorney T. Steven Poteat.

In January 2013, the circuit court filed a notice to dismiss for lack of prosecution. The Daughertys filed a response and objection to the notice,indicating that the parties had been in negotiations regarding a possible resolution of their claim and that Ford had been dealing with health issues. In addition, they had scheduled depositions to be held in June 2011 that had been canceled at the request of Ford's attorney. The Daughertys' attempts to reschedule the depositions went unanswered. They stated they wanted to move forward with discovery and set the case for trial if it could not be resolved. By order entered March 15, 2013, the court ordered the case would remain open and on the active docket.

A second notice to dismiss for lack of prosecution was filed on April 3, 2014. The Daughertys filed a response and objection to the court's notice and by separate filing moved the court to schedule a bench trial. The court again opted to keep the matter on its active docket by order dated May 22, 2014, and later scheduled a trial for December 12, 2014.

In August 2014, the Daughertys filed a motion for summary judgment. They described a previous lawsuit between the parties related to the boundary lines that had been filed in 2005 by Ford. A survey had been completed at the Daughertys' request, and the survey confirmed that the property Ford was claiming was in fact the Daughertys' property. A copy of Mr. Ward's deposition from the 2005 action was attached to the motion, in which he discussed two surveys he performed in September 2004 showing different boundary lines. Ford had signed the September 10, 2004, survey, but not the September 2, 2004, survey.Ford's lawsuit was ultimately dismissed for lack of prosecution in 2008. When Ford again attempted to claim the disputed area in 2010, the Daughertys filed the current suit. The Daughertys went on to contest Ford's adverse possession claim.

The court held a hearing on the motion for summary judgment, but Ford did not attend the hearing or otherwise object to the motion. Neither Ford nor his counsel had appeared at the previous two hearings, and Ford had not shown any interest in defending the action. The court denied the motion by order entered November 14, 2014, finding that a genuine issue of material fact existed with respect to the deed's description and the associated surveys. The court expressed its frustration with Ford and his counsel "for their failure to attend hearings, comply with discovery and disclosure deadlines, and to generally participate in this matter." It nevertheless held that summary judgment was not the proper vehicle to dismiss an action due to a party's inappropriate behavior. The Daughertys moved the court to preclude Ford from presenting any witnesses at trial due to his failure to disclose any witnesses or expert witnesses.

On December 11, 2014, the day before the bench trial was scheduled, the Daughertys filed a notice to cancel the trial due to a pending agreement that would grant a judgment to the Daughertys and dismiss Ford's counterclaim. The notice stated that the agreed order would be "promptly tendered" to the court for entry. Then on January 8, 2015, the Daughertys moved the court to enforce theagreement and sought attorney fees and costs. The Daughertys stated that counsel for Ford had initiated the settlement discussions that resulted in the agreed order, but he had since failed to honor the agreement. The motion continued:

2. On December 11, 2014, the afternoon before the bench trial, counsel for [Ford] telephoned the undersigned counsel. Said counsel advised that his client "did not want to fight this anymore", and asked if the trial for the next day, December 12, 2014 could be canceled. Said counsel advised that his client would "sign off" on whatever [the Daughertys] wanted, including an agreed order that resolved this litigation in [the Daughertys'] favor.

3. The undersigned counsel stated that he would be willing to call the Court and cancel the bench trial for the next morning, but would first need to have confirmation of the agreement in writing. Without written confirmation by counsel for [Ford] that an agreement had been reached as to all material terms, the hearing would need to proceed.

4. The undersigned counsel then immediately proceeded on December 11, 2014 to send an email to counsel for [Ford], which stated as follows (attached hereto as Exhibit A):

Steve:

This is to confirm our telephone conversation that your client is in agreement with judgment being granted in favor of my clients, Marshall and Jesse [sic] Daugherty, decreeing that they are the owners of the land up to the boundary lines depicted on the survey that has been presented to the court, done by Michael Ward. Your client is also in agreement with his counterclaim beingdismissed with prejudice, and that he is giving up any claim of adverse possession with respect to any of the property located within the boundaries of the Daugherty property, as shown on that survey. Please confirm, and I will alert the court, and also prepare an agreed order.

Mr. Poteat then replied as follows at 2:07 PM on December 11, 2014:

Cliff, the below accurately represents my understanding.

Thanks,

Steve

5. After receiving that written confirmation from Mr. Poteat that an agreement had been reached, the undersigned notified the Court that this matter had been resolved and that the bench trial for the next day was canceled. The undersigned also immediately submitted to Mr. Poteat a draft of an agreed order, which Mr. Poteat stated would be signed and returned to the undersigned within a short period of time.

6. As of the date of this motion, the agreed order has not been signed. Counsel for [Ford] has repeatedly failed or refused to return phone calls, voice messages, texts and emails regarding the status of this agreed order. The undersigned counsel honestly has no idea what is going on.

Accordingly, the Daughertys requested that the court enter a judgment in their favor pursuant to the agreement they had reached in December as well as award them attorney fees. The Daughertys moved to cancel the hearing associated withthis motion as an agreed order signed by counsel for both parties had been tendered.

On January 26, 2015,¹ the circuit court entered the agreed order declaring the Daughertys to be the...