Nielsen v. Gibson

• Decision Date: 13 October 2009
• Docket Number: No. C059291.,C059291.
• Citation: 178 Cal.App.4th 318,100 Cal. Rptr. 3d 335
• Court: California Court of Appeals Court of Appeals
• Parties: DAVID NIELSEN et al., Plaintiffs and Respondents, v. GUY GIBSON as Executor, etc., Defendant and Appellant.

178 Cal.App.4th 318

100 Cal. Rptr. 3d 335

DAVID NIELSEN et al., Plaintiffs and Respondents, v. GUY GIBSON as Executor, etc., Defendant and Appellant.

No. C059291.

Court of Appeals of California, Third District.

October 13, 2009.

CERTIFIED FOR PARTIAL PUBLICATION^*

[178 Cal.App.4th 320]

John M. Latini for Defendant and Appellant.

Meegan, Hanschu & Kassenbrock and Peter J. Pullen for Plaintiffs and Respondents.

[178 Cal.App.4th 321]

OPINION

SIMS, Acting P. J.—

David Nielsen and his wife Tricia brought this action against Guy Gibson, in his capacity as executor of the estate of Bettyan Gayl Bender (Gayl), and her heirs, to quiet title to property adjacent to the Nielsen home (the property, or the subject property). Following an unreported court trial, the court found the Nielsens had established they had acquired the subject property through adverse possession and entered judgment quieting title in the Nielsens.

Gibson appeals on the judgment roll. He contends that, under Code of Civil Procedure section 328,¹ the five-year adverse possession period did not begin to run until after Gayl's death because she was incapacitated and incapable of managing her own affairs before the Nielsens began possessing the subject property. In an unpublished portion of the opinion, we conclude the record does not contain evidence supporting this claim.

Gibson also contends the court erred in finding that Gayl could have had reasonable notice of the Nielsens' possession of the property, because Gayl was in Ireland during the whole of the five-year period. In the published portion of the opinion, we reject this argument.

We therefore find no error, and shall affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

We treat this case as an appeal on the judgment roll, because it reaches us based only on the original trial court file in place of a clerk's transcript. (Rule 8.833; cf. Rubin v. Los Angeles Fed. Sav. & Loan Assn. (1984) 159 Cal.App.3d 292, 296 .) Because the case is presented in this posture, we presume that the trial court's findings of fact are supported by substantial evidence, and its conclusions of law are binding upon us unless error appears on the face of the record. (Bond v. Pulsar Video Productions (1996) 50 Cal.App.4th 918, 924 .) Except where otherwise indicated, the following facts are taken chiefly from the trial court's excellent statement of decision.

Ownership of the Subject Property

The subject property was owned at the start of these events by Lyman Bender and his wife Mary (the Benders). In 1993, the Benders executed a gift deed to the subject property to their daughter, Gayl. Gayl built a cabin on the property before she left permanently for Ireland in the early 1990's.

While living in Ireland, in approximately 1997, Gayl became the subject of legal proceedings concerning her competency, after she was found living in her car with all her personal property, including cash, stocks and bonds. An attorney/solicitor in Ireland, Brendan Twomey, was appointed by the Irish court to act for Gayl in a role comparable to that of a conservator of a person's estate. Notwithstanding these developments, the Benders believed Gayl was competent and that someone in Ireland was trying to take legal advantage of her by having her declared incompetent; they said as much to the Nielsens. In mid-1997, Mary Bender went to Ireland to be with Gayl.

In 1997, the Nielsens wanted to buy from the Benders three lots in Granite Bay, which included a residence and the subject property. The Benders also wanted to complete the sale, but the transaction was complicated because the subject property had been gift-deeded to Gayl, who was still in Ireland, and no one had power of attorney to act on her behalf. Lyman Bender urged the Irish attorney Twomey to help them complete the transaction, but Twomey told them that the Irish courts had determined Gayl was incapable of managing her affairs and did not have the capacity to make decisions with legal consequences.

Lyman Bender rejected the notion that Gayl was incompetent, but he wanted to sell the subject property to the Nielsens so he could move to Ireland to join his wife and daughter. Ultimately, in September 1998, Lyman Bender executed two deeds in favor of the Nielsens: a grant deed for the residence and a quitclaim deed for the subject property. When Lyman Bender executed the deeds, neither the Benders nor their family trust had any interest in the subject property, which was owned by Gayl.

The Nielsens' Use of the Subject Property

The Nielsens moved into the residence in December 1997 and immediately began using, occupying, improving, maintaining and otherwise possessing the adjacent subject property.

They physically blocked road access to the subject property from the public road, placed "no trespassing signs" in front of the road and around fences on the property, and denied permission to people who attempted to access it. They irrigated the subject property, planted gardens, maintained and repaired perimeter fencing, trimmed trees, cleared shrubs, removed fallen trees, and cleared brush from the perimeter to reduce fire hazard. The Nielsens built a go-cart track on the subject property, and their children used the cabin for sleepovers and as a play area.

The Nielsens maintained structures on the subject property by cleaning and making repairs to the cabin, repairing the drive, and improving the chicken coop.

They also have paid annual property taxes for the subject property since 1997, and have paid for homeowner's insurance and utility service for the property.

Gayl died in 2003.

The Nielsens brought this action in 2006 to quiet title in the subject property against Gibson, the executor of Gayl's estate, and Gayl's heirs. Gibson cross-complained against the Nielsens for trespass and ejectment.

The Trial

The statement of decision issued after the court trial of this matter contains a lengthy consideration of the issues raised by the pleadings and the basis for its finding that the Nielsens established ownership of the subject property by adverse possession.

In so doing, the court rejected Gibson's assertion that the Nielsens could not, as a matter of law, satisfy the "`open and notorious' element of adverse possession which is a separate and distinct element requiring actual or reasonable constructive knowledge on the part of the property owner." It found that, even when a property owner does not have actual notice of the adverse possessor's possession or claim, the owner is presumed to have notice of the adverse claim if the possession is sufficiently open and notorious, as the Nielsens' was in the instant case.

The trial court also rejected Gibson's claim that Gayl's incompetence tolled the running of the five-year period necessary to establish adverse possession. As relevant here, section 328 prevents a claim for adverse possession from accruing during the period of a landowner's "insanity." But the court found Gibson had not met his burden of proving that Gayl was "insane" within the meaning of the statute. The only witness on this point was the Irish attorney, Twomey, who (the court found) was not adequately acquainted with Gayl, and there was no direct medical or psychiatric testimony on her condition. Moreover, the court held, Gibson failed to establish during "what period, or periods, of time Gayl was considered [by the Irish courts] incapable of taking care of her financial or personal affairs."

DISCUSSION

I. Applicable Standards of Review

On appeal, we must presume the trial court's judgment is correct. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [86 Cal.Rptr. 65, 468 P.2d 193].) In service of that rule, we adopt all intendments and inferences to affirm the judgment or order unless the record expressly contradicts them. (See Brewer v. Simpson (1960) 53 Cal.2d 567, 583 [2 Cal.Rptr. 609, 349 P.2d 289].)

It is the burden of the party challenging a judgment on appeal to provide an adequate record to assess error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141 [104 Cal.Rptr.2d 377, 17 P.3d 735].) Thus, an appellant must not only present an analysis of the facts and legal authority on each point made, but must also support arguments with appropriate citations to the material facts in the record. If he fails to do so, the argument is forfeited. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 .)

The California Rules of Court provide an appellant with a choice of several types of records upon which to take an appeal. The choices include a reporter's transcript, a clerk's transcript, an agreed statement and a settled statement. (Rules 8.831, 8.832, 8.834, 8.836, 8.837.) Gibson has elected to proceed with the original trial court file instead of a clerk's transcript. (Rule 8.833.)

Because Gibson provides us only the original trial court file, and fails to provide any reporter's transcript of the trial preceding the judgment from which he appeals, we must treat this as an appeal "on the judgment roll." (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083 ; accord, Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 207 .) Therefore, as previously noted, we "`must conclusively presume that the evidence is ample to sustain the [trial court's] findings.'" (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154 .) Our review is limited to determining whether any error "appears on the face of the record." (National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521 ; rule 8.830(b).)

II. Principles of Adverse Possession

(1) The elements of adverse possession are well established. "To establish title by adverse possession, the claimant must establish five elements in connection with his occupancy of the property. [Citations.] (1) Possession must be by actual occupation under such circumstances as to constitute reasonable notice to the owner. [Citations.] (2) Possession must be hostile to the owner's title. [C...