Opinion
2023-CA-1403-MR
09-20-2024
C. EDWARD FORD APPELLANT v. ELPHABA, LLC APPELLEE
BRIEFS FOR APPELLANT: L. Brooke Bowman Mitchell Richmond, Kentucky BRIEF FOR APPELLEE: James T. Gilbert Richmond, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MADISON CIRCUIT COURT HONORABLE DAVID M. WARD, JUDGE ACTION NO. 21-CI-00476
BRIEFS FOR APPELLANT: L. Brooke Bowman Mitchell Richmond, Kentucky
BRIEF FOR APPELLEE: James T. Gilbert Richmond, Kentucky
BEFORE: THOMPSON, CHIEF JUDGE; EASTON AND KAREM, JUDGES.
OPINION
THOMPSON, CHIEF JUDGE
C. Edward Ford ("Appellant") appeals from an order of the Madison Circuit Court granting summary judgment in favor of Elphaba, LLC ("Appellee"). Appellant argues that genuine issues of material fact remain for adjudication in his claim asserting adverse possession. After careful review, we find no error and affirm the order on appeal.
FACTS AND PROCEDURAL HISTORY
In 1946, Carl Ford acquired title to a parcel of real property ("the Ford property") situated at 112 and 114 Lorraine Court in Berea, Kentucky. Upon Carl Ford's death, his son, Appellant herein, took title to the property. For at least the last 15 years, the parcel has served as a residential rental property.
The Ford property is located next to a parcel formerly owned by Churchill Company, LLC ("the Churchill property"). A dispute arose regarding the location of the property line between the two parcels, and whether Appellant's usage of a disputed area entitled him to assert a claim of adverse possession. On October 22, 2021, Appellant filed the instant action in Madison Circuit Court to quiet title. Churchill Company, LLC, filed an answer and counterclaim to quiet title. During the course of this litigation, Churchill Company, LLC, sold its parcel to Appellee which was substituted as Defendant.
The matter proceeded in Madison Circuit Court, where evidence was adduced that Appellant's son, Mark Ford, managed the Ford rental property and has visited the parcel weekly if not daily. During Appellant's ownership of the property, Appellant was actively involved in its upkeep which included operating a Bobcat machine, trimming hedges and trees, mowing, and leaf removal.
Appellant claimed ownership of the Ford property continuing up to a line of hedges bordering the rear of the Ford property and running along a paved roadway along the edge of the Churchill property. Appellant recounted a story by way of deposition that when his father, Carl, purchased the property in 1946, there was a "huge gully" some 40 feet wide and 40 or 50 feet deep that was situated in the area between the now-disputed parcels. According to Appellant, Carl entered into a "gentleman's agreement" with the then-owner of the Churchill property, D.C. Churchill, providing that Carl had permission to fill in the gully, cover it with topsoil, and otherwise improve it so it became usable. Appellant testified that D.C. Churchill told Carl, "do whatever you need to do, to use my road to come across and work on this, do it, that's fine." When Appellant was asked whether his father did the work on the property with the permission of Mr. Churchill, he answered in the affirmative.
Thereafter, Appellee filed a motion for summary judgment. In support of the motion, Appellee asserted that Carl's permissive use of the disputed area - said permissive use continuing to the present day - forecloses a claim of adverse possession. Upon considering Appellee's motion, the Madison Circuit Court determined that permissive usage of land is inconsistent with a claim of adverse possession. In the circuit court's view, Appellant's use of the disputed area is clearly permissive in that it was established through an agreement with D.C. Churchill. The court went on to reject Appellant's responsive argument that title should be quieted in favor of Appellant via the doctrine of acquisition by acquiescence. According to the circuit court, the doctrine of acquisition by acquiescence requires a pre-existing controversy which the permissive use resolves. In the instant matter, the court determined that there was no pre-existing controversy which Carl Ford and D.C. Churchill resolved by way of the gentleman's agreement. Summary judgment was entered in favor of Appellee on August 14, 2023.
After the order of summary judgment was rendered, Appellant filed a motion to alter, amend, or vacate the summary judgment. Appellant's motion was denied and this appeal followed.
STANDARD OF REVIEW
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Kentucky Rules of Civil Procedure ("CR") 56.03. "The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary judgment should be granted only if it appears impossible that the nonmoving party will be able to produce evidence at trial warranting a judgment in his favor. Id. "Even though a trial court may believe the party opposing the motion may not succeed at trial, it should not render a summary judgment if there is any issue of material fact." Id. Finally, "[t]he standard of review on appeal of a summary judgment is whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996).
ARGUMENTS AND ANALYSIS
Appellant argues that the Madison Circuit Court committed reversible error in granting summary judgment in favor of Appellee. He contends that summary judgment was premature because genuine issues of material fact remain for adjudication. Specifically, Appellant argues that he was improperly denied the opportunity to present evidence regarding the nature of the interaction between his father and D.C. Churchill at the time of the gentleman's agreement. He asserts that this analysis is fact intensive, entitling him to an adequate opportunity to present evidence on this issue before the entry of summary judgment.
Appellant also argues that acquiescence does not preclude adverse possession. He contends that even though his father, Carl, entered into a gentleman's agreement with D.C. Churchill permitting Carl's usage of the now-disputed area, Appellant attempted to appropriate the property for his own use to the exclusion of all others evinced by his long-term maintenance of the disputed area, including mowing, hedge trimming, and leaf removal. He argues that the Madison Circuit Court erred in failing to so rule. He requests an opinion reversing the order of summary judgment and remanding the matter to the circuit court for further proceedings.
To quiet title by way of adverse possession, the claimant must demonstrate by clear and convincing evidence possession of disputed property under a claim of right that is hostile to the title owner'Vick v. Elliot, 422 S.W.3d 277, 279-80 (Ky. App. 2013) (internal quotation marks, footnote, and citations omitted).
s interest. The possession must be shown to be actual, open and notorious, exclusive, and continuous for a period of fifteen years. To constitute "open and notorious" possession, the possessor must openly evince a purpose to hold dominion over the property with such hostility that will give the non-possessory owner notice of the adverse claim.
The focus of Appellant's first argument is that he was improperly denied the opportunity to present evidence regarding the nature of the interaction between his father and D.C. Churchill. He asserts that he was entitled to present testimony from himself and at least one other witness regarding the filling of the gully between the parties' respective properties, the planting of the boundary hedge subsequent to the gully being filled, and the circumstances surrounding those events.
As noted by Appellee, "[i]t is not necessary to show that the respondent has actually completed discovery, but only that respondent has had an opportunity to do so." Hartford Ins. Group v. Citizens Fidelity Bank & Tr. Co., 579 S.W.2d 628, 630 (Ky. App. 1979). In Hartford Ins. Group, six months elapsed between the filing of the complaint and the motion for summary judgment. A panel of this Court determined that this represented ample time for the plaintiff to adduce facts through discovery sufficient to overcome the defendant's motion for summary judgment.
In the matter before us, over 20 months elapsed between the filing of the complaint and the motion for summary judgment. During that time, both parties submitted interrogatories and requests for the production of documents, to which each party responded. Appellant deposed Bill West, Appellee's owner and officer, and Appellant was deposed on two occasions. Appellant did not undertake further depositions to establish facts, nor serve additional discovery on witnesses. We find no basis in the record or the law for concluding that Appellant was deprived of a reasonable opportunity to engage in discovery sufficient to overcome Appellee's motion for summary judgment.
The Madison Circuit Court determined that Appellant's father, Carl Ford, entered into a gentleman's agreement with D.C. Churchill, in which D.C. Churchill gave Carl Ford permission to work on the property in question. That is to say, Carl Ford's usage of the land was permissive. There was no genuine issue as to the material fact of the permissive nature of the use. This conclusion is supported by Appellant's own testimony. The circuit court properly concluded that permissive use of the land defeats the "hostile" element of adverse possession. Further, "possession by permission cannot ripen into title no matter how long it continues." Phillips v. Akers, 103 S.W.3d 705, 708 (Ky. App. 2002) (citations omitted).
A permissive occupant cannot change his possession into adverse title no matter how long possession may be continued, in the absence of a clear, positive, and continuous disclaimer and disavowal of the title of the owner brought home to the latter's knowledge; there must be either actual notice of the hostile claim, or acts or declarations of hostility so manifest and notorious that actual notice will be presumed in order to change a permissive or otherwise non-hostile possession into one that is hostile.Cowherd v. Brooks, 456 S.W.2d 827, 829 (Ky. 1970) (internal quotation marks and citation omitted). By Appellant's own testimony, the possession of the disputed area by his father and himself was permissive. We agree with the circuit court that permissive use prevents Appellant from proving the "hostile" element of adverse possession.
Appellant goes on to argue that acquiescence does not preclude adverse possession. Appellant directs our attention to Elsea v. Day, 448 S.W.3d 259 (Ky. App. 2014), for the proposition that the recognition of, or the acquiescence in, a mutually agreed upon boundary line, "if continued for a sufficient length of time, will afford a conclusive presumption that the line thus acquiesced in is the true boundary line." Elsea, 448 S.W.3d at 265.
We believe Elsea is not applicable herein for at least two reasons. First, the panel of this Court in Elsea determined that there was no permissive use as is found in the matter before us. "[W]e cannot conclude that he [Appellant], or subsequently James, merely intended to grant permissive use of the disputed parcel." Elsea, 448 S.W.3d at 263. Second, whereas there was a mutually agreed upon boundary line affording a conclusive presumption that the line thus acquiesced in is the true boundary line in Elsea, no such agreed to boundary line is found in the matter before us. Rather, by Appellant's own testimony and discovery responses, his usage of the adjoining property was permissive based on the gentleman's agreement between his father and D.C. Churchill.
CONCLUSION
Appellant's use of the adjoining parcel stemmed from the gentleman's agreement between his father and D.C. Churchill. This permissive use is fatal to a claim of adverse possession, as it would not be possible to prove the elements of adverse possession were the matter to proceed to trial. The record evinces no "acts or declarations of hostility so manifest and notorious that actual notice will be presumed in order to change a permissive or otherwise non-hostile possession into one that is hostile." Cowherd, 456 S.W.2d at 829. Again, "possession by permission cannot ripen into title no matter how long it continues." Phillips, 103 S.W.3d at 708. The circuit court correctly found that there were no genuine issues as to any material fact and that Appellee was entitled to judgment as a matter of law. Scifres, supra. For these reasons, we affirm the order of the Madison Circuit Court granting summary judgment in favor of Appellee.
ALL CONCUR.