APPELLANTS v. MAGDALEAN JOSEPH APPELLEE

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Court of Appeals of Kentucky.

Everett joseph and louise joseph APPELLANTS v. MAGDALEAN JOSEPH APPELLEE

NO. 2010–CA–002136–MR

Decided: January 13, 2012

BEFORE:  ACREE, CLAYTON AND WINE, Double JUDGES. BRIEF FOR APPELLANTS:  Jenna Renee S. Watts Whitesburg, Kentucky BRIEF FOR APPELLEE:  Frank R. Riley, III Whitesburg, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Everett and Louise Joseph appeal a jury verdict and judgment in a boundary dispute with Everett's sister, Magdalean Joseph.   The jury found and the judgment reflects a boundary consistent with that identified by Magdalean's surveyor;  the judgment included damages against Everett and Louise in favor of Magdalean in the amount of $28,333.53 to compensate her for timber they had harvested from her land. Double Finding their argument on appeal unpersuasive, we affirm.

After entry of the judgment, Everett and Louise filed a timely motion for a new trial.   One ground they raised was that Magdalean failed to prove title to the property on which the timber they harvested grew.   The motion was denied on all grounds.

On appeal, Everett and Louise refer to documentation of the chain of title indicating that Magdalean did not own the property. Double Their argument is essentially that the 1946 deed which conveyed the property at issue to Everett and Magdalean's parents, Levi Joseph and Viola Joseph, was recorded in the county clerk's office as actually transferring the property to “Larry Joseph, and his wife.”  Double Everett and Louise argue that this means the property was never technically conveyed to Levi and Viola (despite the fact that upon recordation of this deed, the two began living on the property and did so until their deaths).   Consequently they conclude that Magdalean could never have acquired the eleven-twelfths interest in the subject property because all subsequent transfers of the property from Levi and Viola were invalid. Double

The failure-of-title argument Everett and Louise bring for the first time before this Court, the basis of which was known to them while the case was before the circuit court, is contrary to the position they took in the pleadings and at trial, sullying the argument as disingenuous.

Still, they argue in effect that CR 61.02 permits this Court to reverse the judgment when a party shows a palpable error affecting the party's substantial rights by presenting an argument they could have made before the circuit court, but chose not to do so.   Everett and Louise misread the rule.

In Cobb v. Hoskins, 554 S.W.2d 886 (Ky.App.1977), this Court explained that “[i]n applying this rule, the palpable error must result from action taken by the court rather than an act or omission by the attorneys or the litigants.”  Id. at 888.   We see no error on the part of the circuit court in this case that would justify applying the rule because Everett and Louise removed any issue of Magdalean's ownership throughout the case while it was before the circuit court.

Magdalean's complaint alleged that she “is the owner, with an 11/12 th undivided interest, and Defendants Everett Joseph and Louise Joseph are owners, sharing a 1/12 th interest in” the subject property.   In their amended answer filed on September 6, 2002, Everett and Louise admitted this allegation.   Everett repeated his belief that he shared ownership of the subject property with Magdalean in his deposition and presented further testimony to that effect at trial.   He even explained to the jury that “[t]hey made a mistake putting the name on there, they didn't put Levi's name on there, they put Larry Joseph․”

Everett and Louise were aware of the mistake on the deed all along.   They chose not to base their defense at trial on an obvious clerical error.   Nevertheless, that decision cannot be the basis of an argument for palpable error for it was not an error of the court.

In accordance with Appellants' request, we reviewed the record for palpable error and found none.   For the reasons stated herein, we affirm.

all concur.

ACREE, JUDGE:   Double