RENDERED: DECEMBER 22, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0826-MR
ROBERT HILL AND
KAREN HILL APPELLANTS
APPEAL FROM CHRISTIAN CIRCUIT COURT
v. HONORABLE ANDREW C. SELF, JUDGE
ACTION NO. 16-CI-00297
CHRISTIAN COUNTY
QUAIL CLUB, INC. APPELLEE
OPINION
AFFIRMING
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BEFORE: CALDWELL, MAZE, AND McNEILL, JUDGES.
MAZE, JUDGE: Robert and Karen Hill appeal from the entry of summary
judgment on their claims against appellee Christian County Quail Club, Inc. The
circuit court concluded that the precise claims alleged in this action had been
previously decided against the Hills by jury verdict in a 2014 action and are thus
barred by the doctrines of res judicata and collateral estoppel. Finding no error in
the circuit court’s analysis, we affirm its summary dismissal of the complaint in
this case.
The facts are neither complex nor in dispute. The Christian County
Quail Club purchased property on Quail Club Road in October 1964. The Quail
Club Road property has been continuously used by members of the Club as a
shotgun shooting range since before the purchase of the Club property. In
September 2000, the Hills purchased property adjoining the Club property and
were aware of the Club’s use of the property as a skeet shooting range at that time.
However, in April 2010, the Hills filed an action in Christian Circuit
Court alleging that lead shot and/or lead dust was entering their property due to the
Club’s operation of the shooting range. The Hills sought damages for personal
injury, nuisance, and diminution in property value due to trespass, as well as
claiming entitlement to punitive damages and an injunction prohibiting Club
activities. A jury trial conducted in January 2014 resulted in a verdict in favor of
the Club on the Hills’ claims for personal injury and nuisance and in the Hills’
favor on their claim of trespass, but the jury rejected their claim for actual damages
amounting to $40,000 stemming from an alleged diminution of the value of their
property. Instead, the jury awarded only nominal damages in the amount of $1,200
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for the trespass from shot pellets landing on their property. The Club thereafter
satisfied the judgment.
Subsequent to the 2014 verdict and consistent with recommendations
of its expert in that litigation, the Club altered the orientation and operation of the
skeet trap nearest the Hills’ property changing the shooting position so that shot
from shooters on Trap 1 would land farther away from the line between the two
properties. It also erected a ten-foot-tall fence between the properties.
Nevertheless, in March 2016, the Hills filed the instant action against the Club
alleging a continuing trespass of shot pellets on their property, seeking damages for
physical damage to the property, loss of use and enjoyment, and diminution in
value of the property, as well as punitive damages. They also sought a permanent
injunction compelling the Club to cease and desist from operation of the shooting
club.
After filing its response to the complaint and a period of discovery,
the Club moved for summary judgment on the basis that the Hills’ claims in this
action were barred by the doctrines of res judicata and collateral estoppel. In
response, the Hills argued that summary judgment was inappropriate because shot
pellets continue to fall on their property. They thus argued that what was once an
innocent trespass had become an intentional trespass for which they are entitled to
a jury award of both nominal and actual damages. The circuit court heard
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argument of counsel prior to granting the Club’s motion. In entering summary
judgment on the Hills’ claims, the circuit court stated that it had reviewed the
“prior claims, evidence and arguments presented to a jury on January 30, 2014 in
Karen Hill and Robert John Hill v. Christian County Quail Club,”1 and had
considered caselaw on the principles of res judicata and collateral estoppel prior to
concluding:
The issues of this case were previously presented
to a jury on January 30, 2014. The jury found in favor of
the defendant on the issues of nuisance and personal
injury. While the jury found for the plaintiff on the issue
of trespass, the jury concluded that trespass did not cause
actual damages.
Consequently, the [c]ourt is of the opinion that the
legal princip[le]s of both res judicata and collateral
estoppel require the [c]ourt to enter Summary Judgment
in favor of the defendant.
This appeal followed.
As an initial matter, we cite our Supreme Court’s reiteration of the
well-settled rules regarding entry of summary judgment:
We must first begin by reviewing the standards to be
used when handling summary judgment. Summary
judgment is to be “cautiously applied and should not be
used as a substitute for trial.” Granting a motion for
summary judgment is an extraordinary remedy and
should only be used “to terminate litigation when, as a
matter of law, it appears that it would be impossible for
the respondent to produce evidence at the trial warranting
1
Christian Circuit Court Action No. 10-CI-00592.
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a judgment in his favor and against the movant.” The
trial court must review the evidence, not to resolve any
issue of fact, but to discover whether a real fact issue
exists. This review requires the facts be viewed in the
light most favorable to the party opposing summary
judgment.
Shelton v. Kentucky Easter Seals Soc., Inc., 413 S.W.3d 901, 905 (Ky. 2013)
(footnotes omitted). The Supreme Court also emphasized that the term
“impossible” is to be used in a practical, not an absolute, sense. Id. In this case,
the facts must be viewed in a light most favorable to the Hills. Finally, appellate
review of a motion for summary judgment involves only questions of law and “a
determination of whether a disputed material issue of fact exists.” Id. Therefore,
our review is de novo with no need to defer to the circuit court’s decision. Id.
We next turn to an examination of the legal principles upon which the
Club’s entitlement to summary disposition is predicated – the doctrines of res
judicata and collateral estoppel. The decision of the Kentucky Supreme Court in
Yeoman v. Commonwealth, Health Policy Board, offers a clear and thorough
explanation of the purpose and proper application of res judicata, an affirmative
defense which operates to bar repetitious suits involving the same cause of action:
The doctrine of res judicata is formed by two
subparts: 1) claim preclusion and 2) issue preclusion.
Claim preclusion bars a party from re-litigating a
previously adjudicated cause of action and entirely bars a
new lawsuit on the same cause of action. Issue
preclusion bars the parties from relitigating any issue
actually litigated and finally decided in an earlier action.
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The issues in the former and latter actions must be
identical. The key inquiry in deciding whether the
lawsuits concern the same controversy is whether they
both arise from the same transactional nucleus of
facts. If the two suits concern the same controversy, then
the previous suit is deemed to have adjudicated every
matter which was or could have been brought in support
of the cause of action.
983 S.W.2d 459, 464-65 (Ky. 1998) (emphasis added) (citations and footnote
omitted).
The Yeoman Court emphasized that certain elements must be present
for claim preclusion to operate as a bar to further litigation. Citing Newman v.
Newman, 451 S.W.2d 417, 419 (Ky. 1970), the Supreme Court reiterated the
requirements of: 1) identity of the parties; 2) identity of the causes of action; and
3) that the action must have been resolved on the merits. Concerning the first
element, there is no question but that the parties are identical. In order to apply
elements two and three, we must compare the claims presented to and decided by
the jury in the 2014 judgment and the claims advanced in the instant proceeding.
Although the record is rather sparse concerning the proceedings which
culminated in the 2014 jury verdict, the instructions and the judgment based upon
the jury verdict inform our review. In pertinent part, the 2014 jury was instructed
as follows:
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INSTRUCTION NO. 3 TRESSPASS [sic]
1. You will find for the Hills and against the Quail Club,
if, and only if, you are satisfied from the evidence that
Quail Club allowed pieces or pellets from shotgun shells
to land on the property of the Hills increasing the level of
lead on the Hills’ property without the Hills’ consent.
Otherwise, you will find for Quail Club.
2. Consent as used in this Instruction, may be expressed
or implied from the circumstances or conduct of either
Karen Hill or Robert John Hill.
INSTRUCTION NO. 4
Having found for the Hills under Instruction No. 3,
you will determine from the evidence and award them the
difference between the fair market value of the Hills’
entire property immediately before and immediately after
the property was damaged, excluding the noise and dust
generated from the lead removal in July, 2010, unless
you find the amount to be zero ($0.00), in which case you
will award the Plaintiffs Karen Hill and Robert John Hill
under Instruction No. 5;
“Fair market value” is the price that a person who
is willing, but not compelled to buy, would pay a seller
who is willing, but not forced to sell, would accept for
the property in question.
INSTRUCTION NO. 5
Having found for the Hills, but if, and only if, you
do not award them a sum of damages under Instruction
No.4, you will award nominal damages to the Hills.
“Nominal damages” are a trivial sum of money
awarded to a litigant who has established a cause of
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action but has not established that he or she is entitled to
compensatory damages.
The jury was also instructed on a claim of nuisance and a personal injury claim
predicated upon Karen Hill’s allegation that she had been struck by a shot pellet in
her yard. Although the jury found in favor of the Club on both claims, no similar
claims were alleged in the 2016 proceeding.
As set out in the February 27, 2014 trial order and judgment, the jury
found in favor of the Hills on their trespass claim but found no compensable
damages. Instead, the jury awarded the Hills the sum of $1,200 in nominal
damages, “a trivial sum of money awarded to a litigant who has established a cause
of action but has not established that he or she is entitled to compensatory
damages.” The Hills’ arguments in this appeal focus solely upon the summary
disposition of their trespass claim.
First, the Hills insist that the trespass in this case is continuing and
state that “[w]hile a jury may have believed the [Club] was merely negligent
during the first trial and only awarded nominal damages based on this belief, the
[Hills] can now show that the Quail Club continues to trespass with no regard for
the [Hills’] use or enjoyment of their property.” We view this to be a distinction
without a difference.
The distinction between intentional and negligent trespass was
explored by the Supreme Court in Smith v. Carbide & Chemicals Corporation:
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Ellison v. R & B Contracting, Inc., 32 S.W.3d 66
(Ky. 2000), provided this Court with an opportunity to
revisit the law of trespass to real property. The jury
found the trespass was intentional. Although the case
focused on the proper damages for trespass, the Court
reaffirmed the traditional law of trespass, “even if the
plaintiff suffered no actual damages as a result of the
trespass, the plaintiff is entitled to nominal damages.” Id.
at 71. However, in intentional trespass, in order to
recover more than nominal damages, a property
owner must prove “actual injury,” which we shall
discuss further below.
226 S.W.3d 52, 55 (Ky. 2007) (emphasis added). Thus, the mere fact that a
trespasser’s conduct can be labeled intentional does not relieve a claimant from the
duty to prove actual injury. The record in this case discloses that the Hills’ current
claims against the Club are based upon conduct and alleged injury which do not
differ in any significant respect from that alleged in their previous litigation against
the Club. In fact, the only significant difference in the Club’s activities with
respect to the Hills’ property is the fact that it attempted to ameliorate the situation
by erecting a fence between the parties’ properties and re-orienting the skeet trap
nearest the Hills’ property in an attempt to prevent pellets from falling on their
land.
Because the Hills allege no conduct or injury distinct from that
alleged in the previous litigation, the doctrine of res judicata operates to bar the
instant litigation. In this regard, we find persuasive the rationale of this Court in
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Rockwell International Corp. v. Wilhite regarding the necessity of demonstrating
actual damages:
Although the landowners have established that Rockwell
negligently trespassed on their properties when it allowed
PCBs originating at its Russellville plant to flow into a
stream and thus be deposited as a result of flooding on
their properties, and although PCBs are a known
carcinogen, the landowners have nevertheless failed to
establish that their properties have suffered any injury as
a consequence of the trespass. No persons who have
come upon the land have been harmed, no farm animals
or pets have been sickened, nor have any crops been lost.
The land and the buildings thereon continue to be used as
they were before the presence of PCBs was discovered.
Thus, the landowners cannot recover damages under a
negligent trespass theory.
143 S.W.3d 604, 625 (Ky. App. 2003). Neither in the instant claims nor in the
previous litigation did the Hills offer any evidence as to injury to their property.
As the Club notes in its brief, a shooting experiment was conducted in the current
litigation in which five very small pellets landed on the Hills’ property after more
than 300,000 had been shot. During this experiment, five people, including
representatives of the Hills, stood in the area where the five small pellets fell and
none seemed concerned about potential injury. Thus, returning to the Rockwell
analysis, it appears that “[a]ny annoyance or interference sustained by the [Hills]
here is the result of an irrational fear of [the small pellets]. The law does not allow
relief on the basis of an unsubstantiated phobia.” Id. at 627.
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Because neither the Club’s use of its property, nor the Hills’ evidence
as to the use of their property, differs from the claims submitted to a jury in 2014,
the Christian Circuit Court did not err in concluding the instant claims are barred
by the doctrine of res judicata. We therefore affirm its entry of summary judgment
in this case.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Stephanie Ritchie Mize Edwin A. Jones
Clarksville, Tennessee W. Lucas McCall
Paducah, Kentucky
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