Follmerv.Leese

SUPERIOR COURT OF PENNSYLVANIAMar 14, 2019
J-A24010-18 (Pa. Super. Ct. Mar. 14, 2019)

J-A24010-18 No. 811 MDA 2018

03-14-2019

DALE R. FOLLMER v. CONNIE L. LEESE, DERRIL R. SMITH JR., TERRY SMITH, ALBERT F. SMITH, ALLEN W. SMITH Appellants


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment Entered May 7, 2018
In the Court of Common Pleas of Union County
Civil Division at No(s): 15-0766 BEFORE: OTT, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY OTT, J.:

Connie L. Leese, Derril R. Smith, Jr., Terry Smith, Albert F. Smith and Allen W. Smith (Leese/Smith) appeal from the judgment entered on May 7, 2018, in the Court of Common Pleas of Union County, removing Leese/Smith from possession of a .2-acre portion of a parcel of land. In this timely appeal, Leese/Smith argues the trial court erred "by ignoring the obvious intent of the parties and relying solely on the Doctrine of Superior Title." See Appellants' Brief at 4. After a thorough review of the submissions by the parties, relevant law, and the certified record, we affirm based on the trial court opinion.

Our standard of review for an action in ejectment is as follows:

[Appellate review is] limited to a determination of whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in the application of law. Findings of the trial judge in a non-jury case must be given

the same weight and effect on appeal as a verdict of a jury and will not be disturbed on appeal absent error of law or abuse of discretion. When this Court reviews the findings of the trial judge, the evidence is viewed in the light most favorable to the victorious party below and all evidence and proper inferences favorable to that party must be taken as true and all unfavorable inferences rejected.

Anderson v
. Litke Family Ltd. Partnership
, 748 A.2d 738, 739 (Pa. Super. 2000).

Additionally, the following principles apply:

The plaintiffs' burden in an action in ejectment at law is clear: they must establish the right to immediate exclusive possession. Recovery can be had only on the strength of their own title, not the weakness of defendant's title. The crux of an ejectment action, therefore, rests with the plaintiffs' ability to identify, by a preponderance of the evidence, the boundaries of a parcel of land to which they are out of possession but for which they maintain paramount title.

Doman v
. Brogan
, 592 A.2d 104, 108 (Pa. Super. 1981).

The genesis of this dispute is two handwritten deeds. Foster J. Smith is the common grantor of both deeds at issue in this matter. In 1964, Foster J. Smith conveyed, by handwritten deed, an approximately three-acre tract of land to the Cotners. In 1972, the Cotners conveyed approximately one acre of that land to the Liebs. In 1993, that one-acre tract was subsequently conveyed to Gene L. and Helen L. Smith, who, in 2005, conveyed the property to Dale R. and Sandra S. Follmer (now deceased). Dale R. Follmer is the plaintiff in the underlying ejectment action.

There are many "Smiths" named in the deeds. It is of no particular relevance if any of the Smiths in the chain of title are related to the Defendant Smiths.

In 1985, some 21 years after the initial conveyance by Foster J. Smith to Cotners, Foster J. Smith transferred another parcel of his land to Derril R. and Arlene J. Smith. This parcel of land is approximately four acres. In 2009, this parcel of land was conveyed to Leese/Smith.

The Follmer deed and the Leese/Smith deed have a small overlap of approximately .2 of one acre. There are two structures impacted by this overlap, namely a trailer pad and a shed. The Follmer deed transects the shed in a generally north/south direction, but leaves the trailer pad intact. The Leese/Smith deed transects the shed in a generally east/west direction and runs slightly through a corner of the trailer pad. However, the trial court noted that testimony regarding the timing of when a trailer was located on the pad was inconsistent. Therefore, it is not clear if there was a trailer on the property at the time of the 1964 conveyance to Cotners. Additionally, the trial court heard and considered the trial testimony from surveyors hired by each party, as well as Foster J. Smith's brother, Elwood Smith.

Leese/Smith now argues, in part, that "It would have been 'illogical and unreasonable' for Foster Smith to have conveyed the portion of property where the cabin is located." in 1964, and asserts the trial judge erred in ignoring this "fact" in granting ejectment in favor of Follmer.

See Appellant's Brief at 10. Leese/Smith provides no citation to the record to support this statement. It appears what Leese/Smith refers to as the "cabin" is the trailer pad on which a trailer may have existed in 1964.

In rendering his decision, contrary to Leese/Smith's assertions, the trial judge clearly considered all the testimony in determining the intent of the conveyances. The trial judge took careful note of the description of the property on the Leese/Smith deed and determined the recitation of adjoining properties demonstrated Foster Smith did not intend to convey the disputed land in the Leese/Smith deed. Ultimately, the trial judge noted the Follmer deed, drafted 20 years prior to the Leese/Smith deed, was the superior deed. See Merlino v. Eannotti , 110 A.2d 307, 316 (Pa. Super. 1955) (where there is a clash of boundaries in two conveyances from the grantor, the title of the grantee in the conveyance first executed is, to the extent of the conflict, superior).

After a thorough review of the record, the briefs of the parties, the applicable law and standard of review, the trial court's decision is both supported by competent evidence and is free from legal error. The trial court's decision of August 28, 2017, provides a thorough analysis and properly disposes of the issue presented. Accordingly, we rely upon that decision and direct the parties to attach a copy in the event of further proceedings.

Despite our reliance on the trial court's opinion, we note that paragraph 19 of the findings of fact is an incomplete sentence. The subject of that paragraph is found on page 26 of the June 28, 2017, Notes of Testimony recounting how expert witness Nathaniel Gearhart believed that, regarding the survey for the Smith/Cotner conveyance, the measurement from the northwest corner began in an "erroneous place." Id. at 26. The trial judge did not rely on either expert surveyor to render her decision. See Conclusion of Law 8. Accordingly, this incomplete sentence in the findings of fact does not alter the ultimate legal conclusion not our ability to rely thereon. --------

Judgment affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/14/2019

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