Opinion
NO. 2016-CA-000342-MR
03-23-2018
KLENNIE HOWARD JAMES, INDIVIDUALLY; KLENNIE HOWARD JAMES, GUARDIAN FOR VIOLA SUZIE (JAMES) WILLIAMS; AND OPAL JAMES, WIFE OF KLENNIE HOWARD JAMES APPELLANTS v. LOLA HESS AND LUCILLE COMBS JAMES ANDERSON APPELLEES
BRIEFS FOR APPELLANTS: James P. Pruitt, Jr. Pikeville, Kentucky BRIEF FOR APPELLEES: Lawrence R. Webster Pikeville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM PIKE CIRCUIT COURT
HONORABLE EDDY COLEMAN, JUDGE
ACTION NO. 11-CI-01169 OPINION
AFFIRMING
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BEFORE: J. LAMBERT, NICKELL AND TAYLOR, JUDGES. NICKELL, JUDGE: Appellants appeal from a judgment of the Pike Circuit Court awarding ownership of a parcel of land to Lucille Combs James Anderson. Appellants argue the property was not properly conveyed to Lucille. Appellees argue Lucille obtained the land via an oral partition. The trial court agreed with appellees. Finding no error, we affirm.
Rufus and Myrtie James had seven children: Plennie, Queenie, Klennie, Arvil, Lola, Viola, and Lucille. Myrtie died in 1980. Rufus died in 1988. Both died intestate owning multiple parcels of property in Pike County. This suit concerns a piece of property on which Lucille has been living since at least 1989. While the parents were alive, it was contemplated each of the seven children would receive his or her own parcel of land on which to live. In fact, each child was already living on a separate piece of land before Rufus and Myrtie died. Four of the children had a deed to his or her own piece of land; however, Lucille did not have a deed to the land on which she was living. Lucille brought the underlying suit to quiet title to her land.
Plennie died in 2008, before initiation of the underlying lawsuit.
Arvil died in 2013, during pendency of this action.
Lucille argued the children agreed to give up their testamentary rights and joint ownership to the parcels of land owned by Rufus and Myrtie upon their death in exchange for being allowed to own the land upon which each lived. Lucille produced a deed, dated September 18, 1989, giving her the land in question and relinquishing her rights to the rest of the James' property. The deed was signed only by Plennie, Klennie, Arvil, and Lola. The deed was not recorded and was unrecordable as it had not been properly notarized.
After discovery and a bench trial, the court found the children had agreed to an oral partition of the land in question and gave ownership of the land to Lucille. This appeal followed.
"An appellate court will not disturb the trial court's findings unless those findings are clearly erroneous and unsupported by substantial evidence. Substantial evidence is evidence that contains 'sufficient probative value to induce conviction in the minds of reasonable men.'" Buda v. Schuler, 352 S.W.3d 350, 355 (Ky. App. 2011) (citations omitted). "As the finder of fact, the trial court is vested with the responsibility of weighing and evaluating the credibility of witnesses and the reliability of evidence. Kentucky Rules of Civil Procedure (CR) 52.01." Id.
"Where each of several joint owners of land takes possession of his separate part and continues to hold it for a period of years, it will be presumed that there has been a partition between the parties." Howard v. Carmichael, 237 Ky. 462, 35 S.W.2d 852, 855 (1931) (citation omitted). "It is likewise well settled that an oral partition of land by joint owners, followed by the separate adverse possession of each, and acquiesced in by all the parties for more than 15 years will vest in each the title to that portion of the land allotted to him." Helton v. Campbell, 155 Ky. 257, 159 S.W. 785, 786 (1913).
Appellants argue Lucille did not remain in possession for the full 15-year period because she remarried in the 1990s and moved to Letcher County to live with her husband. In addition, it is claimed her possession was interrupted when she tore down an old house on the property at issue and began constructing a new house. The argument is construction began in 2008, ended in 2012, and Lucille was living in Letcher County during this time. Finally, it is claimed two of the siblings, Arvil and Viola, are mentally incompetent and could not agree to the partition.
To prove a partition existed, there must be evidence of an agreement between the siblings and a 15-year possession period by Lucille. In the case at bar, the trial court found an oral partition had taken place. We agree with the trial court. The evidence presented indicates an oral partition of the land was accomplished.
The trial court believed the siblings all agreed to allow each of them to possess their own parcel of land. We agree. Each child began living on his or her own parcel in the early 1980s. Each child was the sole possessor of his or her land and it appears no dispute arose as to this arrangement until the underlying lawsuit was brought in 2011. In addition, four of the siblings had deeds to his or her own land prior to the death of their parents and testimony indicated it was intended all siblings receive such a deed. Finally, Lucille's unrecorded 1989 deed suggests the siblings attempted to memorialize this agreement.
As to Lucille's possession, there is substantial evidence she solely possessed the property since the 1980s. Multiple witnesses testified Lucille has lived on her property since at least the late 1980s. At first, she lived in an old house on the property, but later tore it down and built a new one. She also maintained the land itself, cutting the grass and cutting back trees and shrubs. Her son also lived with her on the property from his birth in 1980 until he moved out in 2008.
While it is true she had another residence in Letcher County with her husband, she maintained clothing, furniture, and other possessions at the Pike County residence. The testimony of Lucille and her son indicated they spent substantial amounts of time in Pike County. Lucille had a business in Pike County and testified she was at the Pike County residence almost every day. Lucille and her son also regularly spent the night at the Pike County residence. We do not believe Lucille having two residences interrupted her possession of the Pike County property.
As to the alleged incompetence of Arvil and Viola, evidence was presented that at the time this lawsuit was brought, they were both mentally incompetent and unable to agree to the partition. On the other hand, there was no evidence they were mentally incompetent at the time the 1989 deed was drawn or when each child began living on his or her own piece of property. We do not believe the present incompetence of these siblings negates the court's finding a partition was agreed upon in the 1980s.
Klennie is the guardian of both siblings. --------
Substantial evidence was presented to affirm the judgment of the trial court. This was essentially a case of conflicting evidence, and the trial court found Lucille's evidence more persuasive. The unrecorded 1989 deed and the witnesses' testimony all support the court's judgment. We discern no abuse of discretion. It is not for us to determine whether we would have reached a different conclusion if faced with the same evidence. See Church & Mullins Corp. v. Bethlehem Minerals Co., 887 S.W.2d 321 (Ky. 1992). It is axiomatic that even where the evidence presented is conflicting, as it was in this case, we may not substitute our judgment for that of the trial court. Truman v. Lillard, 404 S.W.3d 863, 868-69 (Ky. App. 2012). Mere doubt as to the correctness of a trial court's finding is insufficient to justify reversal. Moore v. Asente, 110 S.W.3d 336, 355 (Ky. 2003).
For the foregoing reasons, the judgment of the Pike Circuit Court is affirmed.
LAMBERT, J., JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY. BRIEFS FOR APPELLANTS: James P. Pruitt, Jr.
Pikeville, Kentucky BRIEF FOR APPELLEES: Lawrence R. Webster
Pikeville, Kentucky