MIKE WYATT AND HIS WIFE CINDY WYATT APPELLANTS v. BOHN FRAZER AND WILLIAM FRAZER APPELLEES

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Court of Appeals of Kentucky.

MIKE WYATT AND HIS WIFE, CINDY WYATT APPELLANTS v. BOHN FRAZER AND WILLIAM R. FRAZER APPELLEES

NO. 2011–CA–001168–MR

Decided: May 04, 2012

BEFORE:  CAPERTON, clayton, and LAMBERT, JUDGES. BRIEF FOR APPELLANTS:  J. William Graves Thomas L. Osborne Paducah, Kentucky BRIEF FOR APPELLEES:  Roy Massey, IV Robert Bart Frazer Marion, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Appellants, Mike and Cindy Wyatt, appeal the declaratory judgment entered by the Livingston Circuit Court interpreting a reservation of hunting and fishing rights in a deed.   On appeal, the Wyatts argue that the trial court was without jurisdiction to enter a declaratory judgment.   After a thorough review of the parties' arguments, the record, and the applicable law, we conclude that the trial court did have jurisdiction to proceed and, accordingly, affirm.

The facts of this appeal were presented to the trial court in a one-day bench trial.   On January 31, 1977, Robert N. Frazer and his wife, Dorothy T. Frazer, conveyed certain parcels of real estate to Lowell Dale Calendar.   In the deed of conveyance, Robert Frazer made certain reservations for himself, his heirs, devisees, and successors and assigns.   At issue, Robert Frazer reserved hunting rights by stating “Robert N. Frazer specifically reserves to himself, his heirs, devisees, successors and assigns, all of the hunting, trapping, and fishing rights, on, in, or over all of the above described property.   However, Lowell Dale Calendar shall have the privilege of hunting and fishing with no more than two guest[s].”

Robert Frazer passed away and his sons, Bohn Frazer and William R. Frazer, the Appellees herein, inherited his interest.   On August 12, 1996, a portion of the real property at issue was conveyed by Calendar to the Wyatts.   The deed conveying the property from Calendar to the Wyatts did not contain the reservation of the hunting rights in the previous deed.

On March 1, 2010, the Frazers filed a complaint for declaration of rights due to the alleged interference with the Frazers' ability to freely access their property interest for purposes of exercising their hunting, fishing, and trapping rights.   Specifically, the parties disagreed over the ability of the Frazers to lease said rights.

Testimony was presented that as early as the fall of 1997, the attorney for the Frazers informed the Wyatts that the Frazers owned the hunting rights on their property.   While the Frazers did not exercise their hunting rights during the time the property was owned by Calendar, the Frazers did exercise their hunting rights for the property with the Wyatts and the Wyatts claimed to have never denied the Frazers access to the land. Double It appears that controversy arose when William Frazer advertised that the hunting rights on the Wyatts' land were for lease.   Mike Wyatt informed William Frazer that he did not appreciate his land being advertised for lease and that he was opposed to the lease.   William Frazer offered to sell the hunting rights to Mike Wyatt for $72,000, which was rejected.   Thereafter, this action was initiated.

After hearing the aforementioned testimony, the trial court entered a declaratory judgment in favor of the Frazers. Double The Wyatts appeal from this order and assert that the trial court was without jurisdiction.   On appeal, the Wyatts present three arguments;  namely, (1) the absence of a “justiciable issue” deprived the trial court of jurisdiction under the Kentucky Constitution § 112(5);  (2) the declaratory judgment statute requires an actual controversy;  and (3) trial courts work best in finding facts and following precedent while leaving law development to appellate courts.   The Frazers disagree and assert:  (1) the circuit court had original jurisdiction under the Kentucky Constitution § 112(5);  (2) an actual case in controversy exists;  and (3) trial courts are adept in law development.   We believe that these arguments may be condensed into one dispositive issue on appeal;  namely, whether the trial court could assume jurisdiction via a declaratory action. Double With this argument in mind we turn to our applicable jurisprudence.

At the outset we note that the decisions of the trial court as to findings of fact in a trial without a jury, “shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”   Kentucky Rules of Civil Procedure (CR) 52.01.   See also Lawson v. Loid, 896 S.W.2d 1, 3 (Ky.1995);  A & A Mechanical, Inc. v. Thermal Equipment Sales, Inc., 998 S.W.2d 505, 509 (Ky.App.1999).   A factual finding is not clearly erroneous if it is supported by substantial evidence.  Moore v. Asente, 110 S.W.3d 336, 354 (Ky.2003);  Owens–Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky.1998);  Uninsured Employers' Fund v. Garland, 805 S.W.2d 116, 117 (Ky.1991).   Substantial evidence is “[e]vidence that a reasonable mind would accept as adequate to support a conclusion and evidence that, when taken alone or in the light of all the evidence ․ has sufficient probative value to induce conviction in the minds of reasonable men.”  Moore at 354. (internal citations omitted).   The trial court's conclusions of law, reached after making its findings, are subject to an independent de novo review.  Gosney v. Glenn, 163 S.W.3d 894, 898 (Ky.App.2005).   With these standards of review in mind we now turn to the sole dispositive issue on appeal, whether the trial court possessed jurisdiction via a declaratory judgment.

The declaratory judgment statute provides:

In any action in a court of record of this Commonwealth having general jurisdiction wherein it is made to appear that an actual controversy exists, the plaintiff may ask for a declaration of rights, either alone or with other relief;

and the court may make a binding declaration of rights, whether or not consequential relief is or could be asked.

Kentucky Revised Statutes (KRS) 418.040. Double

In order to obtain a declaratory judgment, an actual controversy must be present.   As recently reiterated by the Kentucky Supreme Court:

The existence of an actual controversy respecting justiciable questions is a condition precedent to an action under the [Declaratory Judgment Act]. The court will not decide speculative rights or duties which may or may not arise in the future, but only rights and duties about which there is a present actual controversy presented by adversary parties, and in which a binding judgment concluding the controversy may be entered.

Foley v. Commonwealth, 306 S.W.3d 28, 31 (Ky.2010) (internal citations omitted).

This Court in Curry, supra, undertook a learned analysis of the actual controversy requirement:

To justify an action for declaratory relief there must be a real or justiciable controversy involving specific rights of the parties.   HealthAmerica Corp. of Kentucky v. Humana Health Plan, Inc., Ky., 697 S.W.2d 946, 948 (1985).   A justiciable controversy does not include questions “which may never arise or which are merely advisory, or are academic, hypothetical, incidental or remote, or which will not be decisive of any present controversy.”  Dravo v. Liberty Nat'l Bank & Trust Co., Ky., 267 S.W.2d 95, 97 (1954).  “A mere difference of opinion is not an actual controversy ․”  Jefferson County v. Chilton, 236 Ky. 614, 33 S.W.2d 601, 605 (1930) (citations omitted).   Courts are not available for the settlement of arguments or differences of opinions, but adjudicate actual controversies involving legal rights.  Kelly v. Jackson, 206 Ky. 815, 268 S.W. 539 (1925).

Curry v. Coyne, 992 S.W.2d 858, 860 (Ky.App.1998).

Sub judice, the Wyatts contend that there was no actual controversy between the parties because they had never denied the Frazers access to the land to exercise their hunting rights.   We disagree that this renders the issue concerning the alleged property rights moot.   The trial court was presented with sufficient evidence concerning the attempt to lease said rights and the controversy that arose therefrom.   In essence, the Frazers asserted that they possessed legal rights to the Wyatts' property via a deed, which they asserted could be leased to other people;  the Wyatts did not agree.   Such disagreement clearly was an actual controversy which the trial court addressed as such.   Thus, the trial court had jurisdiction to enter the declaratory judgment and was not in error in so proceeding.

Finding no error, we hereby affirm.

ALL CONCUR.

CAPERTON, JUDGE: