Dennis Carlton v. James M. Poynter

• Court: Court of Appeals of Kentucky
• Decided: January 30, 2026
• Docket: 2024-CA-1082
• Status: Unpublished

Opinion

RENDERED: JANUARY 30, 2026; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2024-CA-1082-MR

DENNIS CARLTON AND NORMA CARLTON APPELLANTS

APPEAL FROM PULASKI CIRCUIT COURT v. HONORABLE TERESA WHITAKER, JUDGE ACTION NO. 19-CI-00493

JAMES M. POYNTER AND KELLY JO POYNTER APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: CALDWELL, LAMBERT, AND MOYNAHAN, JUDGES.

CALDWELL, JUDGE: Dennis and Norma Carlton (“the Carltons”) appeal from a

judgment holding them liable for water damage to the property of their neighbors,

James M. and Kelly Jo Poynter (“the Poynters”). We affirm.

FACTS

The Poynters filed suit against the Carltons, asserting claims for

trespass and nuisance. They sought compensatory damages for diminution of their property’s value and for loss of use and enjoyment of their property. They also

sought other relief including punitive damages and an injunction for the Carltons to

cease diverting drainage water from their own property onto the Poynter property.

The case proceeded to a bench trial on liability and a later hearing on

damages. Although they were previously represented by counsel, the Carltons

were not represented by counsel during the bench trial on liability and the damages

hearing. The trial court determined the Carltons were liable for causing water

damage to the Poynter property and its judgment concluded: “The evidence in this

case establishes deliberate and malicious trespass and creation of a nuisance,

resulting in substantial damages.”

The court found the Carlton property had long been a wetland of

drainage from an adjacent property at a higher elevation down to the Loveless

pond. It further found the natural drainage in this area went through a small

portion of the Poynter property. The court noted evidence that an area behind the

Poynters’ garage would stay wet for days after wet weather. Nonetheless, the court

found the natural drainage in this area did not materially affect the Poynter

property until Dennis Carlton (“Dennis”) made certain changes to his property;

changes made after the Poynters complained to a governmental agency about the

Carltons’ burning trash.

-2- The trial court found Dennis twice dug ditches on his property to

divert water onto the Poynter property. It also found James Poynter tried to soak

up extra water by placing more dirt on the Poynter property, but the effect did not

last long. Additionally, the court found Dennis destroyed the culvert system which

he had previously installed to alleviate drainage on the Carlton property. It found

that a ditch dug by Dennis diverted water to the Poynters’ side yard, which

previously had no water issues and was easily mowed. The court further found

water flowing from the Carlton property and the adjacent property at the higher

elevation continued to pool on the Carlton and Poynter property.

Next, the trial court found Dennis built a pond on his property close to

the property line with the Poynter property. It found this pond caused additional

damage to the Poynter property, including severe damage to the Poynters’ house

and side yard. The court found the pond spilled or seeped water above and below

the ground which overflowed onto the Poynter property. It also found Dennis’

building the pond raised the level of the Carlton property, resulting in significantly

more water flowing onto the Poynter property.

The trial court enjoined the Carltons to take remedial action, as

specified by Dale Combs (a witness for the Poynters) to solve the water problem.

It held the Carltons responsible for constructing and maintaining ditches to end

what it referred to as trespass and nuisance problems.

-3- In addition to this injunctive relief, the trial court ordered the Carltons

to pay the Poynters $70,806.76 in damages. The court judgment stated: “the

Carltons are liable to the Poynters for the actual damages they have caused to their

real estate” and “[t]he demonstrated costs to return the house to its prior state of

repair constitute a reasonable inference as to the diminution in the fair market

value of the subject property.” (Page 5 of judgment) (citing Ellison v. R & B

Contracting, Inc., 32 S.W.3d 66, 75 (Ky. 2000)).

The court also held the Poynters were “entitled to compensation for

all consequences of the wrong” since they “pled and proved the creation of a

nuisance . . . .” (Page 5 of judgment) (citing Radcliff Homes, Inc. v. Jackson, 766

S.W.2d 63 (Ky. App. 1989)). It noted repair costs were recoverable for nuisance.

Lastly, the judgment stated: “In addition, or in the alternative, the cost of repair of

damages is also justified as punitive damages for the malicious and deliberate

conduct of Dennis Carlton as sought in the Verified Complaint and established by

the evidence.”

The Carltons raise two issues on appeal. They contend the trial

court’s finding that they acted deliberately and maliciously in altering their

property to redirect water flow onto the Poynter property is not supported by

substantial evidence. Therefore, they assert the trial court erroneously determined

punitive damages were warranted. They also argue the trial court committed

-4- palpable error in admitting a witness’s opinion testimony. We address the

evidentiary issue first, setting forth further facts as needed.

ANALYSIS

No Palpable Error in Trial Court’s Admission of Dale Combs’ Testimony

The Carltons seemingly admit that the alleged error in the trial court’s

admitting Dale Combs’ opinion testimony was not preserved for review.

Nonetheless, the Carltons contend the trial court committed palpable error in

admitting opinion testimony from Combs.1

The Carltons point to Combs’ testimony that their pond was too close

to the property line and would leach out onto the ground. They also point to his

testimony that the pond raised the water table, allowed animals to dig underneath

leading to seepage, and constantly fed water into the Poynters’ yard. The Carltons

also spotlight Combs’ testimony that the Poynters’ water problems could be solved

by getting rid of the pond or by digging ditches under certain specified conditions.

They suggest this was inadmissible opinion testimony.

1 The body of the appellant brief asserts the trial court erred in admitting opinion testimony from Dale Combs. However, the heading for this argument in the appellant brief states: “THE TRIAL COURT ERRANTLY OMITTED OPINION TESTIMONY IN VIOLATION OF KRE 701.” (Appellant red brief, page 11) (bold font in original). We address the assertion set forth in the body of the brief rather than the inconsistent assertion in the quoted heading.

-5- The Carltons argue Combs’ opinion could not be properly admitted as

lay witness opinion testimony under KRE2 701. In their brief they argue Combs

lacked personal knowledge of “the subsurface water flow caused by the pond” and

of “water leaching from Carlton’s pond underground.” They assert Combs’

perspective was limited because he simply observed conditions above ground

while he delivered dirt to the Poynters. For example, they point to Combs’

testimony about his observing the pond’s surface while he stood on the Poynter

property looking at the Carlton property. The Carltons contend Combs could not

directly observe the water table on their property, the pond’s effects on the Carlton

and Poynter properties, the underground flow of water between the properties,

whether the pond was leaching into the ground, or whether animals living in the

pond were causing water to leach into the Poynter property.

Based on these assertions that Combs lacked personal knowledge of

these matters, they argue the trial court abused its discretion in admitting and

considering Combs’ testimony. See Davidson v. Commonwealth, 548 S.W.3d 255,

258 (Ky. 2018) (construing KRE 701 to require that lay opinion testimony must

“be based upon the witness’s own perception”). In addition to arguing Combs

lacked personal knowledge of these matters, the Carltons contend Combs testified

to matters of scientific, technical, or specialized knowledge beyond the realm of

2 Kentucky Rules of Evidence.

-6- proper lay opinion testimony set forth in KRE 701. Instead, in their view,

testimony about the matters addressed by Combs could only be properly admitted

as expert testimony under KRE 702 after the witness is properly qualified as an

expert. See Adams v. Commonwealth, 564 S.W.3d 584, 589–90 (Ky. App. 2018)

(“mechanically inclined” police officer’s testimony that defendant’s vehicle could

not have spontaneously accelerated as the defendant claimed was “specialized and

technical in nature and, therefore, exceeded the permissible scope of lay opinion

testimony permitted by KRE 701”; thus, trial court abused its discretion in

admitting this testimony over the defendant’s objection). In the Carltons’ view,

Combs was not an expert.

The Carltons assert the trial court abused its discretion in admitting

Combs’ opinion testimony without qualifying him as an expert. In response, the

Poynters assert that they and the trial court reasonably perceived the Carltons were

not challenging Combs’ qualifications or the foundations for his opinions due to

the lack of timely objection. In their brief the Poynters also assert: “Had there

been any timely objection to Combs’ qualifications to render opinions, Appellees

[the Poynters] would have had the opportunity to present additional testimony on

his qualifications and the foundation for his opinions.”

The Poynters also urge this Court to decline to reach this unpreserved

evidentiary issue because it was not raised in the Carltons’ original prehearing

-7- statement. They further state their disagreement with the motion panel’s decision

to allow the Carltons to file an amended prehearing statement and to address this

issue in their brief.

We decline to second-guess the motion panel’s decision to allow

briefing of this issue, especially since the original prehearing statement (filed pro

se) generally indicated the Carltons were raising issues about Combs’ testimony.

We opt to briefly address this unpreserved evidentiary issue.

Given the lack of preservation, we need not address whether the trial

court abused its discretion in admitting Combs’ opinion testimony or whether this

opinion testimony should have been excluded if a timely objection had been

lodged. Instead, we review this issue solely to determine if there was palpable

error affecting the Carltons’ substantial rights and resulting in manifest injustice.

See CR3 61.02; KRE 103(e). See also Progressive Direct Insurance Company v.

Hartson, 661 S.W.3d 291, 298–99 (Ky. App. 2023); Ford v. Commonwealth, 628

S.W.3d 147, 155 (Ky. 2021).

The Carltons point out that the trial court enjoined them to dig ditches

or take other remedial action in the specific manner suggested by Combs in his

testimony. They also assert the trial court’s finding that water was spilling and

seeping from the pond and saturating the Poynter property was based on Combs’

3 Kentucky Rules of Civil Procedure.

-8- opinion about the pond’s causing a change in the subsurface water flow between

the properties. They contend this led the trial court to conclude the Carltons’

actions caused water damage to the Poynter property.

The trial court certainly considered Combs’ testimony. And we

cannot say this testimony had no effect on its decision. However, as the Poynters

emphasize, the Carltons were allowed to cross-examine Combs and to present

evidence of their own. Moreover, the trial court did not base its decision solely on

Combs’ testimony. In fact, the trial court opted to inspect the area at issue itself

with the parties and/or their counsel present before making its ruling on liability.

In sum, while we cannot say the admission of Combs’ testimony had

no impact on the trial court’s decision, we do not perceive that any error in the

admission of this testimony resulted in manifest injustice. Whether or not Combs

qualified as an expert or directly observed subsurface conditions on the Carlton

property, Combs testified to his observations in working to address the Poynters’

water problems and to his many years of professional experience addressing

similar problems for other customers. Despite any criticisms which might be

advanced for admitting Combs’ opinion testimony with the benefit of hindsight,

we discern no palpable error in the trial court’s perceiving that Combs’ testimony

might be of some value in resolving the issues before it. So, we cannot fault the

-9- trial court for not sua sponte4 excluding all opinion testimony from Combs. As the

Poynters’ brief states, the record shows Combs had “years of experience solving

water drainage issues and constructing ponds” and “observed the site, presented

two options for redress, and was subjected to cross-examination.” Thus, the trial

court’s admission of Combs’ opinion testimony did not seriously affect the fairness

of the proceedings and was not so “shocking” or “jurisprudentially intolerable” as

to result in manifest injustice. Summe v. Gronotte, 357 S.W.3d 211, 216 (Ky. App.

2011). There was no palpable error. CR 61.02; KRE 103(e).

We discern no reversible error in the trial court’s handling of this

unpreserved evidentiary issue. Next, we address the Carltons’ allegations of error

about the trial court’s factual findings and its statements about punitive damages in

the judgment.

Trial Court’s Finding About the Carltons’ Acting Intentionally to Divert Water to the Poynter Property is Supported by Substantial Evidence and Trial Court Did Not Specifically Award Punitive Damages

The Carltons argue the trial court clearly erred in finding they acted

deliberately and maliciously in causing water to flow onto the Poynter property.

They also contend that due to clear error in this finding (in their view), the trial

4 Sua sponte means: “Without prompting or suggestion; on its own motion.” BLACK’S LAW DICTIONARY (12th ed. 2024).

-10- court’s determination that punitive damages were warranted cannot stand. But as

the appellee brief points out, the trial court did not specifically award punitive

damages. Instead, the court awarded damages for the cost of repairing the Poynter

property to its prior state and simply stated that the award of damages for repair

costs was additionally or alternatively supportable as punitive damages.

Unlike the Carltons, the Poynters contend sufficient evidence supports

the trial court’s factual findings. They point to their own and other witnesses’

testimony about current and former conditions on their property and observations

about changes in conditions following Dennis’ actions. (Other witnesses for the

Poynters included the former owner of their property and the person who formerly

mowed their yard.) The Poynters also refer to the matters deemed admitted due to

the Carltons’ failure to timely respond to requests for admissions.

Given the totality of the evidence, we discern no reversible error in

the trial court’s factual findings. This is especially true since we must give due

regard to the trial court’s unique opportunity to weigh the conflicting evidence and

assess witness credibility. See CR 52.01; Jones v. Livesay, 551 S.W.3d 47, 50–51

(Ky. App. 2018); Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003).

We recognize that Dennis testified to acting with good intentions to

try to avoid damage to his own property and to not aiming to cause any damage to

the Poynter property. But other witnesses testified to Dennis’ actions (including

-11- his digging ditches and building a pond on his property) causing water to flow into

the Poynter property, especially after the pond filled up. The Poynters testified to

these water-related actions occurring shortly after the Poynters lodged complaints

about the Carltons’ trash burning. Kelly Jo Poynter said she suspected these

actions were retaliatory as the Carltons became less friendly to the Poynters after

the trash burning complaint.

So, though the Carltons claim on appeal that any damage caused by

Dennis’s actions was at most due to negligent construction rather than malicious

intent, the trial court could reasonably infer an intent to divert water onto the

Poynter property based on the actions and the totality of the circumstances. See

Stieritz v. Commonwealth, 671 S.W.3d 353, 361 (Ky. 2023) (factfinder may infer

intent based on one’s actions and the surrounding circumstances; people are

presumed to intend the probable and logical consequences of their conduct; and a

person’s state of mind can be inferred from their actions before and after an alleged

incident of misconduct). See also Saint Joseph Healthcare, Inc. v. Thomas, 487

S.W.3d 864, 871 (Ky. 2016). While another factfinder might weigh the evidence

or assess witnesses’ credibility differently, substantial evidence supports the trial

court’s factual findings concerning the Carltons’ intentional diversion of water

onto the Poynter property.

-12- Moreover, despite the extraneous statement that the specific sum

awarded in damages could additionally or alternatively be supported as punitive

damages,5 the trial court awarded damages which are compensatory in nature for

the cost of repairs to bring the Poynter property back to its prior state. In fact, the

exact sum of damages awarded ($70,806.76) matches the sum of the total cost of

repairs set forth in the Poynters’ Exhibit 30.6

In sum, we discern no reversible error in the trial court’s resolution of

the issues raised by the Carltons in this appeal—including its findings about the

intentional nature of the Carltons’ actions and its admission of Combs’ opinion

testimony.

5 The Carltons assert in their reply brief that the trial court improperly conflated punitive and compensatory damages. They point out punitive damages serve a different purpose (retribution and deterrence) than that of compensatory damages (making the injured party whole to the extent that an award of money can do so). See generally Osborne v. Keeney, 399 S.W.3d 1, 20 (Ky. 2012). Still, despite the trial court’s extraneous statement that the damages awarded could additionally or alternatively be supported as punitive damages, it made clear the Carltons were liable for actual damages to the real property. It further stated the sum awarded was based on the costs of repairing the Poynter property to its original state, which it perceived to reflect the diminution of the value of the property. See generally page 4–5 of judgment. Regardless of the extraneous statement about alternative support for the award as punitive damages, the trial court’s award of damages to repair the Poynter property to its original state reflects the purpose of compensatory damages (making the injured party whole). See Osborne, 399 S.W.3d at 20. 6 On page 4 of the judgment, the trial court states that the value of the Poynters’ residence had been diminished by $70,806.70, explaining: “This amount is directly related to the costs of the repairs to the [sic] restore the home to its prior condition to achieve a fair market value.” While there is a six-cent discrepancy between the amount mentioned on page 4 of the judgment and the amount the trial court ordered the Carltons to pay the Poynters (consistent with the Poynters’ Exhibit 30) on page 6 of the judgment, the amount stated on page 4 appears to be a typographical error and the difference is extremely minimal.

-13- Further arguments in the briefs which are not discussed herein have

been determined to lack merit or relevancy to our resolution of this appeal.

CONCLUSION

For the foregoing reasons, we AFFIRM.

ALL CONCUR.

BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEES:

Eric C. Eaton Winter R. Huff A. Tanner Wright Monticello, Kentucky Lexington, Kentucky

-14-