Summary
finding hostile intent by a joint tenant where he "denied [the other joint tenant] access to the property, and physically removed her from the house when she entered without his permission"
Summary of this case from Schueller v. GilliesOpinion
No. 4-587 / 04-0227.
September 29, 2004.
Appeal from the Iowa District Court for Polk County, Douglas F. Staskal, Judge.
Defendant appeals from the district court's order granting plaintiff's motion for summary judgment on his claim of adverse possession. AFFIRMED.
William Talbot of Parker Law Firm, Nevada, and Cecelia Ibsen Wagner of Smith, Schneider, Stiles Serangeli, Des Moines, for appellant.
Jeffrey G. Flagg of Flagg Law Firm, Des Moines, for appellee.
Considered by Huitink, P.J., and Hecht and Eisenhauer, JJ.
Cynthia McIntosh appeals from the district court's order granting Michael Adams's motion for summary judgment on his claim of adverse possession. She contends her failure to file an affidavit in her defense against the motion for summary judgment was not fatal. She further contends Adams failed to prove the elements of adverse possession. Review of a case in equity resulting in summary judgment is for correction of errors at law. Iowa R. App. P. 6.4; Baratta v. Polk County Health Serv., 588 N.W.2d 107, 109 (Iowa 1999). Adams and McIntosh were dating in December 1990 when they purchased a home in Des Moines together. The parties executed a mortgage in favor of Northwest Mortgage, Inc. The parties took title of the real estate as joint tenants with full rights of survivorship.
Approximately one month after taking possession of the property, McIntosh vacated the premises. Adams changed the locks and remained on the premises. Since that time, Adams has paid the mortgage, real estate taxes, and insurance on the property. Adams has also been solely responsible for upkeep, and has rented out part of the property.
In June 1991, Adams agreed to meet McIntosh at the home to allow her to remove some property. When McIntosh did not appear at the scheduled time, Adams placed the property outside the house by the garage. McIntosh confronted Adams at his place of business later that day, wanting access inside the home. Adams refused. McIntosh went to the property and broke into the house through a window. Adams arrived at the home and ordered McIntosh off the property. When McIntosh refused, Adams physically removed her from the house. In the fall of 1991, McIntosh was permitted to enter the premises with Adams's permission and remove the last of her personal property.
On January 24, 2003, Adams filed suit seeking adverse possession of the property. In her answer, McIntosh denied the claim, stated affirmative defenses, and made counterclaims for partition and conversion. In December 2003, Adams filed a motion for summary judgment, which McIntosh resisted. Following a hearing, Adams's motion was granted.
Summary judgment is properly granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Iowa R. Civ. P. 1.981(3). The party moving for summary judgment has the burden of proving the facts are undisputed. Lewis v. State ex rel. Miler, 646 N.W.2d 121, 124 (Iowa Ct.App. 2002). In ruling on a motion for summary judgment, the court must view the facts in the light most favorable to the resisting party. Id.
McIntosh first contends the district court erred in finding the facts were undisputed. Iowa Rule of Civil Procedure 1.981(5) requires an adverse party to set forth specific facts showing the existence of a genuine issue for trial. It is not sufficient for a party to rest upon mere allegations or denials in the pleadings. Iowa R. Civ. P. 1.981(5). Here, McIntosh did not submit an affidavit or attach any other evidence to her resistance. Instead, she simply averred to the existence of a genuine issue of material fact in her resistance. Any such statement in a resistance, without other proof, is an insufficient basis on which to show a genuine issue of fact in dispute. See Griglione v. Martin, 525 N.W.2d 810, 813 (Iowa 1994) (holding statement of uncontroverted facts by moving party does not constitute part of the record from which genuine issues of material fact may be determined). Accordingly, the court correctly concluded no genuine issues of material fact are in dispute.
Next, McIntosh claims the court erred in finding Adams proved the elements of adverse possession. The elements of title by adverse possession are open, notorious, continuous, actual and hostile possession under a claim of right or color of title for at least ten years. C.H. Moore Trust Estate by Warner v. City of Storm Lake, 423 N.W.2d 13, 16 (Iowa 1988). We conclude Adams has proven these elements.
The possession of one tenant in common is presumed to be for the benefit of all, and will, in the absence of statute to the contrary, be regarded as the possession of all cotenants until rendered adverse by some act or declaration by him repudiating their interest in the property. As between cotenants, the statute does not commence to run until there has been an ouster, actual or constructive, by the occupying claimant. Constructive ouster may be shown by evidence of possessor's hostile intent coupled with knowledge or notice thereof brought home to his cotenants. Such knowledge or notice may be shown by circumstantial evidence.
Shives v. Niewoehner, 191 N.W.2d 633, 635-36 (Iowa 1971) (citations omitted). The same principles apply to joint tenants. Although not necessarily determinative of the issue of Adams's hostile intent, payment of mortgage and taxes, effecting major improvements and repairs, leasing out and keeping the rents, issues and profits constitute admissible evidence on this issue. See id. at 636. The evidence regarding Adams's actions after McIntosh vacated the property is further evidence of constructive ouster. Adams changed the locks, denied McIntosh access to the property, and physically removed her from the house when she entered without his permission. McIntosh certainly had knowledge or notice of these actions. Accordingly, we affirm the district court's conclusion Adams proved adverse possession.
McIntosh did not appeal the district court's dismissal of her counterclaims. Therefore, Adams is entitled to a decree quieting title in the property in his name.