Opinion
NO. 2014-CA-000994-MR
05-13-2016
JERRY HUGHES APPELLANT v. C.J. WILLIAMSON a/k/a CLEO J. WILLIAMSON APPELLEE
BRIEF FOR APPELLANT: David A. Black Louisville, Kentucky BRIEF FOR APPELLEE: Dennis J. Stilger, P.S.C. Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE KAREN A. CONRAD, JUDGE
ACTION NO. 12-CI-00641 OPINION
AFFIRMING
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BEFORE: DIXON, D. LAMBERT, AND THOMPSON; JUDGES. D. LAMBERT, JUDGE: This matter is before the Court on appeal from Findings of Fact and Conclusions of Law entered by the Oldham Circuit Court. Said findings and conclusions were used to support the Oldham Circuit Court's judgment in favor of the claimant, Appellee C.J. "Cleo" Williamson, in this adverse possession action below. After reviewing the record, we affirm the ruling of the trial court for the reasons described herein.
I. FACTUAL AND PROCEDURAL HISTORY
This appeal originated in the circuit court as an action to quiet title to a strip of land between the respective properties of the parties. The Appellant, Jerry Hughes, owns a tract of land adjoining the tract owned by Williamson in Crestwood. These tracts were once part of the same tract, and the common owner operated a junkyard on the tract now owned by Hughes. This unity of title was severed in 1965 when the owner subdivided his land.
To separate the junkyard from the other property, a chain link fence was erected in 1973, approximately 7-9 feet from the boundary on the Hughes side. This fence ran in a straight line from the front of the Hughes property to the rear boundary, and did not enclose either tract. The area between the fence and the property line called for in Hughes's deed was referred to below as the "disputed strip."
Williamson acquired her interest in the land jointly with her brother in 1985. A residence on the property was occupied by Williamson's brother, who maintained the property, including the disputed strip, until he moved and conveyed his interest to Williamson in 1996. The residence was occupied by friends of Williamson's brother for a time thereafter. That residence was demolished in 1998.
Williamson constructed several improvements on the land during her time of ownership. In 1994, water utilities were connected. In 1995, electrical utility services were connected, the poles for which were erected in the disputed strip. In July of 1997, Williamson constructed a garage on the property, which was two stories and boasted a full kitchen and bathroom. Williamson used the garage as a workshop. In August of 1999, gas utility lines were laid in the disputed strip and connected to the garage. In July of 2000, Williamson constructed a gazebo, which is alleged to have been at least partially constructed on the disputed strip. In August of 2007, a new septic system was installed on Williamson's tract to service the garage. Having a separate residence in Louisville, Williamson has never lived on her tract; she does use the property two to four days per week.
Hughes acquired his interest in his tract in 2005, though he is no stranger to the neighborhood. Hughes is the brother of Williamson's fiancé, and for a time period ranging from 2000 through 2005, lived on the Williamson tract in a recreational vehicle camper. During this time, Hughes used the utility connections of Williamson.
On his own tract, Hughes built a second story onto an existing garage, the construction of which apparently sparked the dispute between the parties. Part of the upper floor of Hughes's garage was an overhang which was approximately even with the fence line. When Hughes tried to have some trees in the disputed strip removed, Williamson refused to permit the workmen access, and that work was never completed. Williamson later had three letters from three different attorneys dispatched to Hughes claiming ownership of the disputed strip in 2010 through 2012. Even after the civil action was filed below, Hughes removed approximately one hundred feet of the chain link fence to allow brick to be laid for his garage.
Following a bench trial, on May 9, 2014, the trial court issued its Findings of Fact and Conclusions of Law. The trial court specifically found that Williamson had maintained the disputed strip over the course of her ownership of her tract, and further that Williamson satisfied all of the elements necessary for a claim of adverse possession.
This appeal followed, wherein Hughes challenges three of the trial court's findings as well as its ultimate conclusion that the elements of adverse possession were satisfied.
II. ANALYSIS
A. STANDARD OF REVIEW
When a party challenges the factual findings of a trial court sitting without a jury, appellate courts review such findings using a clear error standard. "Findings of fact, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." McVicker v. McVicker, 461 S.W.3d 404, 416 (Ky.App. 2015) (quoting Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003)). A factual finding is clearly erroneous when it is not supported by substantial evidence. Hutchinson v. Kentucky Unemployment Ins. Comm'n, 329 S.W.3d 353 (Ky.App. 2010). This Court, in Moore v. Asente, described "substantial evidence" as "[e]vidence that a reasonable mind would accept as adequate to support a conclusion." Id. at 354.
When an appellate court is tasked with reviewing a trial court's resolution of a property title dispute, the standard of review is whether the trial court clearly erred or abused its discretion. Vick v. Elliot, 422 S.W.3d 277, 279 (Ky.App. 2013).
B. HUGHES IS NOT ENTITLED TO AN AMENDMENT OF THE TRIAL
COURT'S FINDINGS OF FACT
Hughes argues on appeal that three of the trial court's factual findings are erroneous. Specifically, Hughes challenges the trial court's findings that: 1) the gazebo was constructed at least partially on the disputed strip, 2) Williamson had maintained the disputed strip for the entirety of her ownership, and 3) that Hughes knew of Williamson's claim of ownership prior to the receipt of the first letter in 2010.
The trial court's order explicitly states that it found Williamson's evidence more credible than Hughes's. Moreover, the evidence introduced during trial supports the trial court's findings. Simply because an appellate court might reach a different conclusion than the trial court on the credibility of the same evidence does not render a trial court's findings erroneous. Moore v. Asente at 354. The trial court remains entitled to due regard as the fact-finder, and the ruling must not be disturbed.
C. THE TRIAL COURT CORRECTLY RULED THAT ALL ELEMENTS
OF ADVERSE POSSESSION WERE SATISFIED
Kentucky courts have long held that adverse possession consists of five requisite elements. "1) Possession must be hostile and under a claim of right, 2) it must be actual, 3) it must be exclusive, 4) it must be continuous, 5) it must be open and notorious." Appalachian Regional Healthcare, Inc. v. Royal Crown Bottling Co., Inc., 824 S.W.2d 878, 880 (Ky. 1992) (citing Tartar v. Tucker, 280 S.W.2d 150 (Ky. 1955)). These common law elements, combined with a fifteen-year period of such possession as described in Kentucky Revised Statutes (KRS) 413.010, define when a claimant is entitled to quiet title to the disputed realty. "In the case of a claim of title by adverse possession, the hostile possession must be exclusive and continuous for every day of the statutory period...." Lyle v. Holman, 238 S.W.2d 157, 160 (Ky. 1951). The claimant must prove all of these elements by clear and convincing evidence. Commonwealth Dept. of Parks v. Stephens, 407 S.W.2d 711 (Ky. 1966).
The trial court found the evidence established the elements. Hughes challenges the trial court's ruling on the basis that the elements of hostility, exclusivity, and continuity, were not met, and the requisite time period had not lapsed.
1. WILLIAMSON'S POSSESSION IS HOSTILE
Hughes asks this Court not only to overturn the trial court's conclusion of law that the possession was hostile, but also to ignore the trial court's finding of fact that Hughes had notice of Williamson's claim of possession prior to 2010. As discussed above, this Court will not disrupt the trial court's findings of fact, as they are supported by substantial evidence. Specifically, the trial court heard evidence that Hughes had actual notice of Williamson's claim of possession as early as 2000, when she permitted him to park his RV camper in the disputed strip and reside there until 2005. For Hughes to argue that he lacked notice of her claims to the disputed strip until he received a letter from her attorney in 2010 is not only disingenuous, but it is clearly refuted by the record and, more importantly, is contrary to the trial court's conclusive findings.
"[T]he character of the property, its physical nature and the use to which it has been put, determines the character of acts necessary to put the true owner on notice that a hostile claim is being asserted." Ely v. Fuson, 180 S.W.2d 90, 92 (Ky. 1944) (citations omitted). This property is residential in character, and Williamson's acts of constructing improvements, running utility lines, and permitting a guest to set up a camper on the disputed property, on her side of well-marked boundary lines, reflect an unmistakable intention to put the true owner on notice that a hostile claim is being asserted.
2. WILLIAMSON'S POSSESSION IS EXCLUSIVE
Hughes also argues the exclusivity element is not satisfied here. He cites Vaughan v. Holderer, where the Court held that a claimant against the titled owner could not acquire title by adverse possession because, among other considerations, the claimant's possession was not exclusive. The Court noted that because the disputed realty was not completely enclosed by a fence, "the record owner was never cut off from access to or use of his property by [an] act of the [claimant]." 531 S.W.2d 520, 522 (Ky. 1975). Critical distinctions exist between Vaughan and the instant situation: in Vaughan, there was "no visible boundary marking" and the only evidence of the claimant's use of the disputed property in Vaughan was testimony that the claimant sporadically used the property to mow it and paid the taxes assessed on it. Id. Here there is a fence delineating the properties, and evidence established that Williamson did far more than mow the property—she installed permanent improvements to the land. "Physical improvements to the land, such as fences and buildings, demonstrate a possessor's intent to adversely hold the property." Henninger v. Brewster, 357 S.W.3d 920, 930 (Ky.App. 2012).
3. WILLIAMSON'S POSSESSION IS CONTINUOUS
Hughes contends that evidence established that Williamson does not live on her property and that her use of the property is "recreational." Both of these arguments appear to be indirect attacks on the trial court's conclusion that Williamson's possession is continuous. He cites Flinn v. Blakemore, 71 S.W.2d 972 (Ky. 1934), in arguing that a claimant who does not live on a tract does not possess it, rather the claimant "simply mentally extends [her] claim over it." Id. at 972. He also points to language in KRS 411.190 to stand for the proposition that recreational use as defined within that provision shall not be construed to "[r]ipen into a claim for adverse possession." KRS 411.190(7)(c).
The evidence in the record plainly establishes that Williamson does not reside on the property, and it also establishes that she makes regular use of the property on an average of two to four days per week. She has also constructed permanent improvements on the land, and caused utility service lines to be installed on the land to service those improvements.
However, contrary to Hughes's representation of the rule of Flinn, residing on the subject premises is not required to establish continuity of possession. "[A]dverse possession may be evidenced by substantial activity on the land; sporadic uses... do not suffice." Moore v. Stills, 307 S.W.3d 71, 79 (Ky. 2010). The trial court noted that Williamson's regular visits to the property went well beyond what could be classified as "sporadic." We agree, and would characterize multiple regular visits to the property per week as "substantial activity" sufficient to satisfy Moore v. Stills. Further, the purposes for which Williamson visits the property do not fall within the scope or quality of activities defined as recreational in KRS 411.190(1)(c).
Although Hughes is correct that the statute precludes recreational use from ripening into a valid adverse possession claim, the facts here simply to do not support his contention that Williamson's use is either sporadic or recreational in nature. KRS 411.190 does not apply here. The trial court correctly concluded that Williamson's use of the property was continuous and uninterrupted.
4. WILLIAMSON HAS POSSESSED THE PROPERTY ADVERSELY FOR
A PERIOD IN EXCESS OF FIFTEEN YEARS
Having first determined the trial court correctly ruled that the evidence showed Williamson satisfied each of the common law elements of adverse possession, the Court now turns to the statutory element found in KRS 413.010. The action to quiet title of realty based on adverse possession cannot be initiated prior to fifteen years from the accrual of the right to institute such action.
Hughes argues that the right did not accrue until at least 2010, when he first received a letter from Williamson's counsel asserting ownership. As discussed above, this argument is refuted by the evidence of record and the trial court's findings. The trial court found that Williamson's use of the disputed strip for utility connections dates back to 1995. This action was initiated in 2012, more than fifteen years later.
The trial court's findings, drawing support from substantial evidence, control here. This Court can find no abuse of discretion.
III. CONCLUSION
This Court, having reviewed the record, and finding no error in the trial court's application of the law to the evidence presented, concludes that the trial court properly exercised its discretion in granting judgment in favor of Williamson. Accordingly, the judgment of the Oldham Circuit Court is hereby AFFIRMED.
ALL CONCUR. BRIEF FOR APPELLANT: David A. Black
Louisville, Kentucky BRIEF FOR APPELLEE: Dennis J. Stilger, P.S.C.
Louisville, Kentucky