Opinion
NO. 2013-CR-000995-MR
01-23-2015
ROY BAKER; VERNA MESSER; AND RUBY BAKER APPELLANTS v. RONALD TOLBERT; SHIRLEY TOLBERT; ESTATE OF GLADYS TURNER, BY ITS EXECUTOR, HUSKY TURNER, AS EXECUTOR OF THE ESTATE OF ALONZO TURNER, DECEASED APPELLEES
BRIEF FOR APPELLANT: Rodney E. Buttermore, Jr. Harlan, Kentucky BRIEF FOR APPELLEE: Otis Doan, Jr. Harlan, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HARLAN CIRCUIT COURT
HONORABLE ROBERT W. MCGINNIS, JUDGE
ACTION NO. 96-CI-00478
OPINION
AFFIRMING IN PART,VACATING IN PART AND REMANDING
BEFORE: COMBS, STUMBO, AND THOMPSON JUDGES. COMBS, JUDGE: Roy Baker, Verna Messer, and Ruby Baker appeal the judgment of the Harlan Circuit Court entered April 4, 2013. After our review, we affirm in part, vacate in part, and remand.
On August 6, 1996, Roy Baker and Verna Messer, his sister, filed a civil action against Ronald and Shirley Tolbert alleging that the Tolberts were trespassers upon their property near the crest of Pine Mountain in Harlan County. The Toberts had moved a mobile home onto the disputed woodland property. In addition to the trespass, the appellants also alleged that the Tolberts had damaged the property by cutting trees and bulldozing the woodland. The Tolberts answered and indicated that they were residents in rightful possession of the property pursuant to a rental agreement with Alonzo Turner, by now (1996) deceased. Pursuant to an agreed order entered September 9, 1996, the heirs of the Turner estate were to have the disputed property surveyed.
On October 2, 1998, the trial court notified the parties of its intent to dismiss the action for lack of prosecution. However, based upon the statements of counsel suggesting that the dispute was near resolution, the matter was permitted to remain on the court's docket.
More than a year later, Baker and Messer filed a motion requesting that the court conduct a status conference. On November 5, 1999, the matter was set for a bench trial on January 20, 2000. However, based upon representations of counsel, the trial was eventually rescheduled for a bench trial to be conducted on March 14, 2000. Baker and Messer submitted a pretrial memorandum on March 8, 2000. On March 10, 2000, the trial court granted the Tolberts' motion to continue the trial until September 6, 2000.
In August 2000, the parties agreed to continue the trial until January 9, 2001. But by agreed order entered January 9, 2001, trial was again continued until April 17, 2001.
On March 20, 2001, Ruby Baker, the mother of Roy Baker and Verna Messer, filed a motion to intervene in the action. She was permitted to do so, and on April 18, 2001, an agreed order was entered indicating that trial would be continued indefinitely.
In an order entered on December 1, 2003, the court set the matter for trial on May 6, 2004. On January 19, 2005, the court set the matter for trial on July 20, 2005.
On July 11, 2005, Gladys Turner sought to intervene in the action on behalf of the Estate of Alonzo Turner. She also filed a motion to continue. The Bakers and Messer objected vehemently to a further continuance. Nevertheless, by order of the court entered July 19, 2005, trial was continued until November 1, 2005.
On October 18, 2005, the Turner Estate filed another motion to continue. Over strenuous objection, the motion was granted. Trial was continued until January 3, 2006.
On October 17, 2007, more than a decade after the action for trespass had been filed, the Bakers and Messer filed another motion to set the matter for trial. On October 13, 2007, the trial court ordered the Tolberts and the Turner Estate to produce a survey of the disputed property to the court and to opposing counsel no later than February 1, 2008. In January 2009, the parties exchanged witness and exhibit lists.
On February 28, 2008, the opposing parties filed separate motions to continue. As a result, the matter was rescheduled for a bench trial to be conducted on May 23, 2008.
In April 2008, the Turner Estate filed another motion to continue, and the trial was rescheduled for August 2008. On July 16, 2008, Gladys Turner, individually and as executrix of the Estate of Alonzo Turner, filed a motion seeking leave of court to file an amended answer. She sought to include the defense of adverse possession. While Messer and the Bakers objected to the motion, the amended answer was permitted to be filed. The trial was again continued indefinitely. Meanwhile, Gladys Turner passed away.
In August 2009, Messer and the Bakers filed a motion to revive the action against Husky Turner -- executor of the Estate of Gladys Turner. They also filed a motion requesting that another trial date be set. They observed that the case "has been pending for approximately thirteen (13) years and has had eleven (11) previous trial dates." By order entered September 24, 2009, the matter was set for trial to be conducted on December 4, 2009.
On December 2, 2009, Huskey Turner, as executor of the Estate of Gladys Turner, filed a motion to continue. By order of the court entered December 15, 2009, the matter was set for trial on March 19, 2010.
On March 1, 2010, the Turner Estate filed yet another motion to continue, arguing that because of the unexpected death of land surveyor, David Williams, the estate needed additional time to prepare for trial. The Turner Estate noted that David Noe had been hired but that Noe's work could not be completed in time for the scheduled trial date. The trial was rescheduled for April 14, 2010. When a conflict arose and a courtroom proved unavailable on that date, the trial was rescheduled yet again.
A bench trial was finally conducted on June 7- 8, 2010. Testimony confirmed that the disputed parcel lay near the crest of Pine Mountain north of a roadway known as Little Shepherd Trail near the junction of U.S. 421 in Harlan County. The Bakers and Messer claimed property lying on the north and south side of the crest of the mountain. They conceded that the Turner Estate owned property lying on the north side of Pine Mountain farther below its crest.
Ownership of property on Pine Mountain claimed by the Bakers and Messer can be traced to a patent surveyed on February 7, 1845, and issued to William C. Farmer and Noble Smith on September 1, 1845. Ownership of property on Pine Mountain claimed by the Turner Estate can be traced to a patent issued to Jonathan Smith and Hiram Lewis on May 28, 1853.
At trial, Harrison Smith, an expert witness offered by the Bakers and Messer, indicated that the competing patents encompassed a significant overlap. He testified that the Farmer and Smith Patent -- the senior patent -- lies primarily on the south side of Pine Mountain -- but with respect to the disputed area extends across the crest to the north side of Pine Mountain.
The land surveyor offered by the Turner Estate, David Williams, agreed in his deposition that the patents overlapped in an area at the crest of Pine Mountain. The Farmer and Smith Patent as depicted in the plat prepared by Williams plainly has its boundary north of the crest of Pine Mountain. However, the Turner Estate also produced the testimony of David Noe at trial. Noe explained that the deeds in the Bakers and Messer chain of title have consistently established the property line at the crest of Pine Mountain and not further north. When questioned about the boundaries of the Farmer and Smith Patent, Noe disagreed that any boundary lay north of the crest of Pine Mountain as reflected by the plat prepared by David Williams. Instead, Noe interpreted the north line of the Farmer and Smith Patent to run along the crest of Pine Mountain.
In support of its allegation that the disputed property had been adversely possessed, the Turner Estate presented testimony indicating that members of the Turner family had used the property at the crest of the mountain for many years for hunting and searching for ginseng. Finally, the Tolberts testified that they continued to possess the property pursuant to a lease agreement with the Estate of Alonzo Turner. They indicated that they had placed several mobile homes upon the disputed property along with various outbuildings.
At the conclusion of trial, the court requested additional briefing and the submission of proposed findings of fact, conclusions of law, and judgment. These were to be submitted to the court within four (4) months. The requested memoranda and proposed findings, conclusions, and judgment were timely filed. However, the senior judge who heard the matter completed his tenure in 2012 without rendering a decision.
The incoming senior judge ordered a status conference to be conducted on February 17, 2012. On April 4, 2013, the circuit court's findings of fact, conclusions of law, and judgment were entered.
The court found that the "entirety of the property in dispute is located on the north side of Pine Mountain, and since approximately 1920, the common boundary line between the properties is the crest of Pine Mountain, with the Bakers and their predecessors in title owning on the south side of the crest, and the Turners and their predecessors in title owning on the north side of the crest." The court concluded that the Turners had established title to the disputed property by deed and title was quieted in them.
The motion of the Bakers and Messer to alter, amend, or vacate the judgment was summarily denied. A timely appeal to this court was filed, but was held in abeyance for thirty (30) days, per our order, pending further action by the circuit court.
On appeal, the Bakers and Messer argue that the trial court erred as a matter of law by concluding that the Turner Estate had established record title to the disputed property. They contend that the evidence did not support the trial court's finding that the Farmer and Smith Patent identified the crest of Pine Mountain as its northern boundary. They also argue that the evidence failed to substantiate its finding that the Turner family had used the disputed property continuously for more than fifteen (15) years. The Bakers and Messer argue that the court was compelled by the evidence to conclude that the Turner Estate could not establish title to the disputed property by any means and that judgment should have been entered in their favor.
Kentucky Rule[s] of Civil Procedure (CR) 52.01 provides that where actions are tried upon the facts without a jury, the court shall find the facts specifically and state separately its conclusions of law. The trial court's findings cannot be set aside upon our review unless they are deemed to be clearly erroneous. Id. Findings are "clearly erroneous" only where they are not supported by substantial evidence. "'Substantial evidence"' is 'proof sufficient to induce conviction in the mind of a reasonable person.'" Rearden v. Rearden, 296 S.W.3d 438, 441 (Ky. App.2009). That standard of review requires us to give due regard to the opportunity of the trial court to judge the credibility of the witnesses. CR 52.01
As the cornerstone of their argument on appeal, the Bakers and Messer claim that the trial court failed to render a critical finding -- that their senior patent creates in them superior title to the disputed property. They contend that the Turner Estate's junior patent is void insofar as it overlaps the senior patent and that as a result, the estate cannot establish record title -- no matter what the deeds through their chain of title purport to convey.
The record in this case is voluminous and uneven. Nevertheless, we are satisfied upon our review that the action was tried as one for trespass alone. In an action for trespass, it is the plaintiff who must prove (a) title of record from the Commonwealth or from a source shown to be common with that claimed by the defendant, (b) title by adverse possession for the statutory period, or (c) actual possession at the time of the invasion of his rights. Marinaro v. Deskins, 344 S.W.2d 817 (Ky.1961). After reviewing the testimony, the trial exhibits, and the arguments or counsel, the trial court was not satisfied that the Bakers and Messer proved any of these requirements.
The court was persuaded instead by the expert testimony of David Noe. In a post-trial brief submitted to the court, the Bakers and Messer conceded that it was Noe's opinion that the northern boundary of the Farmer and Smith Patent ran along the crest of Pine Mountain. Consequently, it was Noe's opinion that none of the property in dispute - the whole of it lying north of the crest of Pine Mountain - could be claimed by the Bakers and/or Messer.
"It is well-settled that a plaintiff in an action for trespass, where the title of the land is put in issue, must recover on the strength of his own title and not on the weakness of the defendant's title." French v. Childers, 280 Ky. 339, 133 S.W.2d 63 (Ky. 1939). Since the Bakers and Messer could not establish good title to the property they claimed beyond the crest of Pine Mountain, the precise location of the boundary between the adjoining properties became entirely irrelevant to the action. Therefore, to the extent that the judgment serves to quiet title to the disputed property, it must be vacated. Likewise, the trial court's findings as they appear pertinent to the claim of adverse possession are irrelevant to a determination on the trespass action.
It was the role of the trial court in this matter to weigh the conflicting evidence and witness testimony. Based upon our review of the record, we conclude that the trial court made its decision based upon the expert testimony of David Noe and the recorded deeds. The court's critical finding of fact - that the Bakers and Messer could not show good title to the disputed property - was supported by substantial evidence. Consequently, we affirm the decision of the trial court concluding that the Tolberts were in rightful possession of the property pursuant to their rental agreement with the Turner Estate. We are not persuaded that under the circumstances the Turner Estate is entitled to quiet title of the disputed property, however. Consequently, we are compelled to remand for an order dismissing the trespass action.
In summary, we affirm in part, vacate in part, and remand.
ALL CONCUR. BRIEF FOR APPELLANT: Rodney E. Buttermore, Jr.
Harlan, Kentucky
BRIEF FOR APPELLEE: Otis Doan, Jr.
Harlan, Kentucky