Opinion
NO. 2014-CA-000243-MR
05-01-2015
CHARLES WRIGHT APPELLANT v. BONNIE BLANTON APPELLEE
BRIEF FOR APPELLANT: Timothy A. Parker Prestonsburg, Kentucky BRIEF FOR APPELLEE: Larry Dean Brown Prestonsburg, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FLOYD CIRCUIT COURT
HONORABLE JOHN DAVID CAUDILL, JUDGE
ACTION NOS. 05-CI-00979 AND 05-CI-00980
OPINION
AFFIRMING
BEFORE: COMBS, J. LAMBERT, AND MAZE, JUDGES. MAZE, JUDGE: Charles Wright appeals from a judgment of the Floyd Circuit Court resolving a boundary dispute in favor of Bonnie Blanton. Wright argues that the trial court erred by dismissing his adverse possession claim, and by allowing Blanton to testify to circumstances surrounding the creation of her deed. However, we agree with the trial court that Wright failed to allege facts sufficient to support his adverse possession claim. We also conclude that the trial court did not abuse its discretion by allowing Blanton's testimony and the admission of a hand-drawn map supporting her claimed boundary. Hence, we affirm.
The property at issue in this case was part of a larger tract which was originally conveyed to Clyde B. Stephens and Isabelle Stephens by Carson and Nell Warrix by deed dated January 24, 1958 (the Warrix tract). Clyde Stephens died intestate in 1971, and the title passed to Isabelle and their six children. The children eventually deeded their interests back to Isabelle.
On December 15, 1994, Isabelle executed a deed conveying property to Max and Virginia Music. The deed set out a specific description of the property conveyed, which constituted a portion of the Warrix tract. The deed also stated that the property conveyed was "part of the same property conveyed" in the 1958 deed.
Following the deaths of Max and Virginia Music, the property passed to their heirs. On October 5, 2000, the heirs, Maxine Music, and Lorery and Devin Walker, as guardians and co-trustees for John Music, a minor, executed a deed conveying the property to Wright. The deed set out the same description as was set out in the 1994 deed.
On July 12, 2002, Isabelle executed another deed conveying the remaining portion of the Warrix tract to Richard Lee and Bonnie Sue Blanton. Bonnie Blanton is the daughter of Clyde and Isabelle. This deed also set out a specific description of the property conveyed, but reserved a family cemetery and access road from the conveyance. As with the 1994 deed, the 2002 deed also referenced the 1958 conveyance.
Subsequently a dispute arose between Wright and the Blantons over the boundary and ownership of the cemetery. On September 22, 2005, Wright filed a petition against the Blantons alleging that they had encroached upon his property. On the same day, he filed a separate petition against the Music heirs, alleging that the boundary description in the 2000 deed failed to close and seeking reformation of the deed. The trial court consolidated the claims into a single action.
Due to various continuances, this matter languished on the trial court's docket for an extended period of time. In 2011, Wright filed an amended petition claiming ownership of the entire Warrix tract either by deed or by adverse possession. After several further delays, the matter proceeded to a bench trial in December 2013.
Richard Blanton died on March 3, 2012. By virtue of a survivorship clause in the 2002 deed, Bonnie became the sole owner of the tract.
At the outset of the trial, Wright testified that he was claiming ownership of the entire Warrix tract based upon the representations of Maxine and George Music concerning the boundaries. The trial court held that Wright could not rely upon those representations because the deed set out a specific description. The trial court also held that Wright could not maintain an adverse possession claim based upon boundary representations which were contrary to those set out in his deed. The court also noted that Wright had not owned the property for the requisite fifteen years, and that there was no evidence that the Musics had possessed the entirety of the Warrix tract.
The case then proceeded on the issues relating to the boundary dispute. Wright's surveyor, Eddie Childers, testified regarding the survey that he conducted. Based on the calls in the deeds, Childers stated that the description of the common boundary was ambiguous and could be located in one of three locations. However, Childers testified that the right line was more consistent with the calls and topographical descriptions in the senior deed. That line placed most of the disputed area within Wright's tract.
Bonnie Blanton testified concerning the circumstances leading up to her mother's 1994 sale of the property. She testified that her mother intended to keep the portion of the Warrix tract that included the family cemetery. Blanton also testified that she and her mother met with Don Hughes of Abbott Engineering, Inc. before the Warrix tract was divided. The three of them created a hand-drawn map, which was then used to develop the description of the property sold to the Musics. Blanton testified that the middle line on the Childers survey was most consistent with the line set out by her mother in the hand-drawn map. That line placed the cemetery on her property.
Following the bench trial, the trial court entered findings of fact, conclusions of law and a judgment for Blanton. The trial court again rejected Wright's claim of adverse possession based upon the specific descriptions in the deeds and the lack of any evidence showing that he had possessed the disputed area for the fifteen years necessary to establish adverse possession. The court also found that the boundary line between the tracts was best represented by the middle line on the Childers survey. Wright appeals from this judgment.
As this matter was tried before the circuit court without a jury, our review of factual determinations is under the clearly erroneous rule. CR 52.01. A finding of fact is not clearly erroneous if it is supported by substantial evidence, which is "evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men." Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998). It is within the province of the trial court as the fact-finder to determine the credibility of the witnesses and the weight given to the evidence. Frances v. Frances, 266 S.W.3d 754, 756 (Ky. 2008). This rule applies with equal force on an appeal from a judgment in an action involving a boundary dispute. Croley v. Alsip, 602 S.W.2d 418, 419 (Ky. 1980). We review the trial court's conclusions of law de novo. Gosney v. Glenn, 163 S.W.3d 894, 898 (Ky. App. 2005).
Kentucky Rules of Civil Procedure.
Wright first argues that the trial court erred in finding that his adverse possession claim was barred because his deed included a specific description of the property. To prove the elements of adverse possession, Wright was required to show that his possession of the entire Warrix tract was hostile, under a claim of right, actual, exclusive, continuous, open, and notorious for a period of at least fifteen years. See Appalachian Regional Healthcare v. Royal Crown Bottling Co., Inc., 824 S.W.2d 878, 879-80 (Ky. 1992). See also Moore v. Stills, 307 S.W.3d 71, 77 (Ky. 2010). These elements must be demonstrated by clear and convincing evidence. Phillips v. Akers, 103 S.W.3d 705, 709 (Ky. App. 2002).
The trial court found no support for Wright's assertion that Isabelle Stephens intended to convey the entire Warrix tract in the 1994 deed to the Musics. Any such implication was refuted by the specific description of the tract conveyed in that deed. Consequently, the trial court held that Wright could not establish actual possession of the entire Warrix tract merely through his reliance on the Music family's representations concerning the boundaries.
Wright notes that a landowner may claim adverse possession of property even though the claim originated under a mistaken belief that such land lies within the calls of his deed. Tartar v. Tucker, 280 S.W.2d 150, 152 (Ky. 1955). But in such cases, the claim of adverse possession arises from the landowner's actual possession of property beyond the calls of his deed. Id. Sporadic activity is not sufficient to give notice to the record title owner of a continuing hostile claim, and absent the erection of physical improvements to the land, the activity must be substantial. Kentucky Women's Christian Temperance Union v. Thomas, 412 S.W.2d 869, 870 (Ky. 1967). The trial court found no credible evidence that Wright exercised actual possession of the entire Warrix tract. Wright testified that he only occasionally went on to the cemetery to clear debris. We agree that this activity was insufficient to establish a continuing hostile claim.
The trial court also noted that Wright had only owned the property since 2000, and there was no evidence that the Musics had exercised possession of the entire Warrix tract during their ownership. We also note that the Blantons clearly asserted their claim to the cemetery property shortly before this action was filed. That claim and the filing of this action in 2005 tolled the running of any period of adverse possession. Thompson v. Ratcliff, 245 S.W.2d 592, 593-94 (Ky. 1952). Therefore, we agree with the trial court that Wright failed to assert facts which would have entitled him to proceed forward with his claim for adverse possession.
Wright next argues the trial court erred by allowing Blanton to testify about her mother's intentions in dividing the property, and by allowing her to introduce the hand-drawn map based on those discussions. Wright argues that the hand-drawn map was not admissible unless Hughes testified that he relied upon it to write the boundary description. As a result, Wright contends that the trial court erred by admitting the hand-drawn map as evidence and by allowing Blanton to testify concerning the intended boundaries.
KRE 602 provides that, "[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." Blanton testified that she was present at the meeting when her mother discussed the boundaries with Hughes, and she participated in the creation of the hand-drawn map. Thus, she had personal knowledge regarding the authenticity of the map and her mother's intentions regarding the boundary. We will not disturb a trial court's decision to admit evidence absent an abuse of discretion. Matthews v. Commonwealth, 163 S.W.3d 11, 19 (Ky. 2005). Under the circumstances, Wright has failed to show that the trial court abused its discretion by admitting the hand-drawn map or by allowing Bonnie Blanton to testify about her mother's intentions regarding the boundary.
Kentucky Rules of Evidence.
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Accordingly, the judgment of the Floyd Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Timothy A. Parker
Prestonsburg, Kentucky
BRIEF FOR APPELLEE: Larry Dean Brown
Prestonsburg, Kentucky