EMBRY V. TURNER
PROPERTY – Real Property (boundary line dispute, nov, new trial)
2004-CA-002040
Published 
AFFIRMING (HENRY, J.)
Date: 2/10/2006

This appeal arose from a boundary line dispute (aka the ‘fence’) in which the Turners prevailed with the Embrys filing a motion for new trial and judgment NOV.  The judge granted the new trial motion (one year later!), and then set aside the new trial order after the Turners so filed their own motion. (Confuses yet?)   In setting aside the order for a new trial and reinstating the trial verdict, the judge admitted in his order that he was only trying to get the litigants to settle the matter.  COA took the trial judge (Ronnie C. Dortch) to task for this misapplication of the rules.

Here is the trial judge’s acknowledgement of same in his order setting aside the new trial order.  Emphasis is from the opinion of the COA.

This matter was tried before a Jury in Butler Circuit Court and the Jury returned a verdict in favor of Defendant on January 28, 2002. Prior to this matter being tried,
this Court had required the Plaintiff and Defendant to attempt to settle this matter on more than one occasion. This Court had always felt that, for various reasons, this is a matter that should have been settled without the necessity of trial; however, the parties were unable settle [sic] the matter with the resultant jury trial. Thereafter, on February 11, 2003, this Court entered its Order sustaining the Plaintiff’s motion for a new trial but overruling the Plaintiff’s motion for a judgment notwithstanding the verdict. Candidly, this Court issued its Order for a new trial simply to allow the parties an additional chance to settle the case without the necessity of an appeal, with the parties incurring additional attorneys’ fees, etc. even at that point in
the litigation. This Court felt that the  parties could and should be able to settle this matter but this Court was wrong. Therefore, this Court finds that it was in error when it sustained the Plaintiff’s motion for a new trial and it is therefore this Court’s prerogative to correct its earlier error. (Emphasis added by COA in their opinion).

The first issue addressed was ‘minor’ in that "the grant of a new trial under CR1 59.01 terminates the running of time for appeal. CR 73.02(1)(e).  In this case there was no new trial and therefore no new final judgment from which to appeal.  Nevertheless, the COA was satisfied that the court continued to have jurisdiction to enter an order setting aside its prior order granting a new trial, as was done here.  Thus, the appeal in this case was timely filed.

The next issue was ‘major’ after addressing the ‘procedural anomalies’ was the denial of the new trial motion.  In undertaking the analysis of the trial judge’s eventual decision not to allow a new trial here, the COA "must be mindful that the decision is presumptively correct, and that we cannot reverse unless it was clearly erroneous. McVey v. Berman, 836 S.W.2d 445, 448 (Ky.App. 1992) . . .; see also Prater v. Arnett, 648 S.W.2d 82, 86 (Ky.App. 1983). . . ."

In affirming the the denial of the new trial motion, the COA rejected these issues raised by the losing party – evidence not substantial and the credibility of an expert was question (rejected since function of jury is to determine questions of credibility and issues of fact where the evidence is conflicting, Woods v. Asher, 324 S.W.2d 809 (Ky., 1959));  verdict was contrary to the law (reject the loser’s arguments on ‘agreed boundary line’ which would have allowed for parol agreements to establish the property line and which was premised on estoppel).

The three cases addressed on the agreed boundary line issue are:  Faulkner v. Lloyd, 253 S.W.2d 972 (Ky. 1952); Redman v. Redman, 240 S.W.2d 553 (Ky. 1951); and Wolf v. Harper, 313 Ky. 688, 233 S.W.2d 409 (1950).

In addressing the impropriety of the trial judges actions, the COA stated the trial judges "interference was inappropriate at best and injudicious at worst."

Finally, we must address the major peculiarity present  in this case – the trial judge’s grant of a new trial upon grounds that he ultimately admitted that he fabricated in an effort to coerce a settlement. It is one thing for a judge to mediate settlement of a case prior to trial, which may be done if ethical requirements are scrupulously observed. See SCR3 4.300 Canon 3 B(7)(d); Home Depot U.S.A., Inc. v. Saul Subsidiary I Ltd. Partnership, 159 S.W.3d 339, 341 (Ky.App. 2004). It is quite another to set aside an otherwise valid jury verdict for reasons of personal belief or bias. The overturning of a jury verdict in favor of a new trial is a matter of the utmost seriousness, and should only occur when the specific criteria set forth in CR 59.01 are carefully considered and met. To flout those criteria due to one’s personal belief about a case is incompatible with our system of justice. Such conduct tends to erode public confidence in the fairness and impartiality of our court system. Nearly four years have passed since a Butler County jury unanimously decided this case in favor of the appellees. At least two years of delay in bringing this case to its ultimate conclusion was caused by the trial judge’s improper – even if well-intentioned – intervention. His interference was inappropriate at best and injudicious at worst.