Phillips v. Rosquist
| Decision Date | 17 June 2021 |
| Docket Number | 2018-SC-0671-DG |
| Citation | 628 S.W.3d 41 |
| Court | United States State Supreme Court — District of Kentucky |
| Parties | Eugene PHILLIPS and Cynthia Clark, Appellants v. John ROSQUIST and Judy Rosquist, Appellees |
COUNSEL FOR APPELLANTS: Neil Duncliffe, Georgetown, Duncliffe Law Office.
COUNSEL FOR APPELLEES: D. Duane, Cook Cook & Watkins, PLC, Georgetown.
Years after buying Lot 89, a residential subdivision lot, Eugene Phillips and Cynthia Clark sued John and Judy Rosquist, the owners of an adjoining subdivision lot, claiming trespass and recovery of land adversely held and demanding both injunctive relief and monetary damages.1 More than a decade earlier and years before Phillips owned Lot 89, Rosquist excavated a portion of his lot and Lot 89 to allow the water from a lake touching both properties to cover a portion of both lots. Rosquist's action, Phillips claimed in his suit, constituted a trespassory occupation of the portion of Lot 89 submerged by lake water.
The trial court's judgment granted Phillips a mandatory injunction, directing Rosquist to backfill Lot 89 and restore its former contours. The Court of Appeals vacated the trial court's judgment on statute-of-limitations grounds.
We accepted discretionary review to decide whether the Court of Appeals properly reversed the trial court's mandatory injunction and whether a member of the three-judge Court of Appeals’ panel that decided this case below should have been disqualified from hearing the appeal.
We affirm the Court of Appeals’ holding vacating the injunction because we find that Phillips never received title to the submerged portion of Lot 89. Without title to—or prior possession of—the submerged portion of the lot, we hold that Phillips cannot maintain a claim for trespass, for removal from land or recovery of land adversely held, or to quiet title in himself, differing with the Court of Appeals as to the applicable statute of limitations. And, while Phillips validly claims Rosquist's excavation violated the subdivision's restrictions, equitable relief is not available because Phillips acquired title to Lot 89 in its altered condition and failed, inexplicably, to bring a claim for four years after discovering Rosquist's violation of subdivision restrictions and over a decade after Rosquist completed the excavation of Lot 89. Accordingly, we affirm—on different grounds—the Court of Appeals’ decision to vacate the trial court's injunction. We further conclude the judge on the Court of Appeals’ panel below should have recused himself under the circumstances presented by the record, although our decision on this issue does not affect the outcome of this case.
Phillips and Rosquist live next door to each other in a gated community called Victoria Estates, a residential development with many of its component subdivision lots clustered around a manmade lake. All lots in Victoria Estates are platted and subject to mutual restrictive covenants. The community is governed by the Victoria Estates Homeowners’ Association ("VEHOA"). The relevant subdivision restrictions forbid "excavation, grading and other site work," "building," or changing boundary lines except in strict conformity to the terms of the covenants’ Article XI and prior approval from the VEHOA board of directors ("Board").
Phillips owns Lot 89 fronting on a street and extending to the margin of the lake to the rear. Rosquist owns Lot 92, situated similarly between the street and lake. The parties’ shared boundary line runs from a street to the lake.
The trial court found that in 1999, Robert Young owned Lot 89, which he used merely to access the lake to fish. In late 1999, Rosquist excavated the shoreline of both Lot 89 and 92, lowering the elevation to allow water from the lake to flow over the excavated area to form a shallow cove and lengthen the lake frontage of both lots. The cove's surface area measures about 1,500 square feet and lies mostly over the original surface of Lot 89. Rosquist completed the excavation during the executory period of his contract to purchase Lot 92. In the new cove, Rosquist floated a dock where he tied his small rowboat. Rosquist did not seek or obtain approval from the VEHOA for the excavation, and the dock violated restrictions forbidding unpermitted improvements, excavation, and construction.
Clark purchased Lot 89 seven years after the excavation—in November 2006. At least a year elapsed before Phillips discovered that Lot 89's original contours were changed. Four more years elapsed before Phillips filed the underlying suit against Rosquist.
Following a bench trial, the trial court ruled that Phillips was not entitled to damages for trespass under KRS 413.120 because Phillips accepted title to the lot in its altered state and the original trespassory act by Rosquist affected the interests of Phillips's predecessor in title, Mr. Young. The trespass was complete and permanent at the time Phillips took delivery of the deed to Lot 89, so Phillips could not maintain an action for trespass as the five-year statute of limitations for trespass had passed. But the trial court concluded Rosquist's actions constituted a violation of the subdivision's restrictive covenants and a continuing trespass governed by a fifteen-year statute of limitations under KRS 413.010. So the trial court ruled that Phillips's claims were timely asserted and that Phillips was entitled to a remedy "to remove the cloud on their title and to restore their land to conform to the deed to this property." The trial court issued an injunction requiring Rosquist to remove the dock and backfill the area to restore its original contours at an estimated cost of $80,000. The Rosquists appealed that judgment.
While the case was pending before the Court of Appeals, Phillips moved then-Court of Appeals Judge Robert Johnson, a member of the three-judge panel assigned to review his appeal, to recuse from the panel. The facts supporting the motion will be discussed later, but it suffices now to say that Phillips averred that Judge Johnson and the Rosquists were friends, Judge Johnson lived in same subdivision, and that Judge Johnson had extra-judicial knowledge of facts of the case or had prior contact with Rosquist concerning the case. While the original recusal motion was pending, Phillips filed an additional affidavit asserting that Rosquist's canoe, removed from the dock under the injunction, had appeared in Judge Johnson's yard. A unanimous Court of Appeals denied the motion to recuse.
Ultimately, the Court of Appeals reversed the trial court and vacated the injunction. The appellate court found Rosquist's excavation was a permanent trespass, not a continuing trespass, and subject to the five-year statute of limitations in either case. Because the permanent trespass was complete in 1999, the time for bringing the trespass action expired in late 2004. The court also found that Rosquist was not bound by the restrictive covenants because, although he had signed a contract to purchase Lot 92, he excavated both lots before legal title had finally transferred at closing. The Court of Appeals thus found the injunction against Rosquist improper.
Phillips then sought discretionary review in this Court, arguing the Court of Appeals erred by characterizing his remaining claim as an action for trespass instead of one to recover land adversely possessed, resulting in the erroneous application of the five-year statute of limitations. Phillips now argues the character of his action is to recover land, the flooded part of Lot 89, adversely occupied by Rosquist, and that he has a fifteen-year statute of limitations entitling him to the injunction granted by the trial court. Phillips also maintains the Court of Appeals judge should have recused and that the unfavorable decision proved the judge's bias in Rosquist's favor.
This appeal presents for resolution primarily issues of law. We review these questions of law de novo, respectfully owing no deference to the legal determinations of the courts below.2 The issues of law raised in this case include the construction and application of statutes,3 the interpretation and legal consequence of a purported deed,4 the denial of a motion to recuse,5 and a critical issue, more or less previously raised by Rosquist, Phillips's standing to bring suit.6 A trial court's decision to issue an injunction is subject to review for abuse of discretion.7 And finally, while Rosquist disputes some of the trial court's factual determinations, in this appeal we adopt as conclusive the trial court's factual determinations, having found them supported by substantial evidence.8
The thrust of Phillips's substantive appeal at this point is that he is entitled to recover land adversely held by Rosquist. He maintains that he has abandoned his trespass claim in the trial court for failure to meet the five-year statute of limitations, so he no longer seeks to recover damages for trespass as he avers the Court of Appeals mistook. Still, Phillips claims his recovery action was timely filed within fifteen years as KRS 413.010 prescribes, since Rosquist completed the trespassory act in 1999 and Phillips brought suit by 2011. Phillips also maintains that Judge Johnson should have recused, that conflicts of interest and his apparent relationship with Rosquist reasonably cast doubt on the Court of Appeals’ decision vacating the injunction. Thus, Phillips asserts two primary errors of law on appeal.
First, we find Phillips never had standing to bring a recovery action with respect to the submerged land because title to that portion never passed to him under the deed to Lot 89, regardless of which statute of limitations would apply. And although the Court of Appeals incorrectly found Phillips lacked standing to bring an action to enforce restrictive covenants, it did observe correctly that Phillips failed to make a...
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