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RENDERED: FEBRUARY 8, 2013; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals
NO. 2011-CA-001894-MR DAVID KELLY-THOMAS DEBRA KELLY-THOMAS

APPELLANTS

v.

APPEAL FROM KNOTT CIRCUIT COURT HONORABLE KIM C. CHILDERS, JUDGE ACTION NO. 06-CI-00267

ESTATE OF ANNA PENCE STAMPER MULLINS; CLETA PENCE; AND CLIFFORD PENCE

APPELLEES

OPINION AFFIRMING IN PART AND VACATING IN PART ** ** ** ** ** BEFORE: ACREE, CHIEF JUDGE; MOORE AND THOMPSON, JUDGES. MOORE, JUDGE: Debra and David Thomas appeal the judgment of the Knott Circuit Court resolving a boundary line dispute in favor of the Estate of Anna

Pence Stamper Mullins,1 Clifford Pence, and Cleta Pence. After a thorough review of the record, we affirm in part and vacate in part. As a preliminary matter, Anna Pence Stamper Mullins died during the pendency of this action, and the circuit court entered an order substituting her estate on August 30, 2011. David and Debra did not comply with procedural requirements set forth in CR 25.01 required to revive the action in the name of Anna's representative or successor.2 Therefore, substitution of the estate was not properly made within one year of Anna Pence's death. KRS 395.278. Consequently, the action was not revived, and the circuit court did not possess jurisdiction over the Estate of Anna Pence Stamper Mullins. Snyder v. Snyder, 769 S.W.2d 70, 72 (Ky. App. 1989). Accordingly, we vacate any and all orders entered by the circuit court concerning the Estate of Anna Pence Stamper Mullins. The Thomases brought this action requesting that the court establish the boundary line between the parties' adjacent properties. A bench trial was held. The evidence presented at trial revealed that Debra had enlisted the services of a surveyor, Von Campbell. Campbell testified that he made no independent findings as to the boundary line but had only prepared "an exhibit of what [Debra] thought was the line." Mr. Campbell also stated that Debra is "going to have to be the one to verify this property line, because I can't tell anyhow."
1

Anna was the Pences' daughter and had a mobile home on their property prior to her death.

2

Although the Pences made no objection to the motion for substitution at trial, we can find no evidence of record regarding the identity of the representative of Anna's estate or that said representative had notice of the substitution as required by CR 25.01.

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Debra also testified regarding her personal knowledge as to the location of the boundary line from what she had been told by her father and grandfather. She also testified that she no longer agreed with the diagram prepared by surveyor Von Campell because it did not accurately reflect the property line. The Pences enlisted the services of surveyor Kenneth Johnson. Johnson conducted a survey by using a deed in the Pences' chain of title to obtain a property description, and Johnson's survey did not coincide with Debra's description of the boundary line. Haskel Richie, who was familiar with the property as a former county magistrate and because he had logged the property in the early 1980's, confirmed Mr. Johnson's depiction of the boundary line. He indicated that at the time he logged the property the Pences showed him the boundary line and that Debra's father, who was Debra's predecessor in title,3 was in "total agreement" as to the location of the boundary lines. The circuit court found the Johnson survey accurately depicted the boundary lines and adopted the description contained in that survey. Debra now appeals. "Because this is an appeal from a bench trial without a jury, the [circuit] court's findings of fact are `not to be set aside unless clearly erroneous with due regard being given to the opportunity of the trial judge to consider the credibility of the witnesses.' Factual findings are not considered clearly erroneous
3

Debra did not provide a source of title or property description for the portion of the subject property in which she claims to have ownership.

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if they are `supported by substantial evidence.'" Goshorn v. Wilson, 372 S.W.3d 436, 439 (Ky. App. 2012) (internal citations omitted); see also CR4 52.01. Both parties presented evidence in support of their contentions. The circuit court simply made a credibility determination when finding that the testimony and evidence presented by Surveyor Johnson and Haskel Richie was more credible. We are required to give deference to the circuit court's credibility determination and cannot find that the circuit court's findings were not clearly erroneous. Moreover, we agree with this determination because the "survey" submitted by Debra was nothing more than a drawing done by a surveyor based upon where Debra indicated that the property line was; whereas, the Pences' survey was based upon an objective review of the deeds. We therefore affirm the circuit court's adoption of the boundary lines as represented in the Johnson survey and, for the aforementioned reasons, vacate all orders pertaining to the Estate of Anna Pence Stamper Mullins.

ALL CONCUR.

BRIEF FOR APPELLANT: Winter Huff Somerset, Kentucky

BRIEF FOR APPELLEE: Jerry W. Wicker Hindman, Kentucky

4

Kentucky Rule of Civil Procedure.

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