Animal Care, Inc. v. Shumaker

• Decision Date: 08 November 2013
• Docket Number: No. 109,576.,109,576.
• Citation: 312 P.3d 398
• Parties: ANIMAL CARE, INC., by and through Debra K. ANDERSON, D.V.M., d/b/a Westport Animal Clinic, Appellants, v. Roger SHUMAKER and Shumaker Development Company, LLC, Appellees.
• Court: Kansas Court of Appeals

312 P.3d 398

ANIMAL CARE, INC., by and through Debra K. ANDERSON, D.V.M., d/b/a Westport Animal Clinic, Appellants,

v.Roger SHUMAKER and Shumaker Development Company, LLC, Appellees.

No. 109,576.

Court of Appeals of Kansas.

Nov. 8, 2013.

Appeal from Shawnee District Court; Franklin R. Theis, Judge.

William L. Anderson, of Topeka, for appellants.

Robert S. Redler, of Law Office of Robert S. Redler, of St. Marys, for appellees.

Before MALONE, CJ., PIERRON and Hill, JJ.

MEMORANDUM OPINION

PER CURIAM.

In this appeal, Animal Care, Inc., doing business as Westport Animal Clinic, seeks our reversal of the district court's denial of its adverse possession claim to an 8–foot strip of land adjacent to its business in Topeka. The law states that a party can acquire ownership of real estate if that party has been in open, exclusive, and continuous possession of that real estate for 15 years under either a claim that is knowingly adverse or under a belief of ownership. Because the Clinic has no proof that the strip of ground was exclusively in its possession for 15 years, as the law requires, we hold the district court correctly denied the Clinic's claim to the contrary. We affirm the district court.

The Clinic bought its real estate in 1988.

In December 1988, Dr. Debra Anderson, along with her husband, William L. Anderson, purchased two commercial condominium units at 2800 SW Wanamaker Rd., Topeka, from Westport Plaza Partnership. Dr. Anderson is also the sole owner of the corporation Animal Care, Inc. Both the corporation and Dr. Anderson do business as Westport Animal Clinic and have operated the clinic at the Wanamaker Road location since it opened in February 1989.

Then, in December 2006, Roger Shumaker and Shumaker Development Company, LLC bought a building next to the Westport Animal Clinic. This adjacent building had previously housed a child day care center called KinderCare. In this opinion we will call Westport Animal Clinic “the Clinic” and refer to Shumaker and Shumaker Development as “Shumaker Development.”

It is important to note that under the “Declaration of Condominium” agreement, the boundaries of the condominium units purchased by the Clinic were limited to the interior spaces. Except for those areas designated as “limited common areas and facilities” (a unit's entrance, air conditioning unit and pad, and sign structure), the grounds outside the Clinic were designated in the declaration as common areas. Title to the common areas remained with the Westport Plaza Partnership. That partnership is responsible for the management and care of the common areas. The Clinic acquired with its purchase an interest described as an “undivided interest in common areas” in proportion to its share of the maintenance expenses as a member of the owners' association. This proportion is based on the square footage of its particular unit or units compared to the total square footage of the remaining units. For the Clinic this equaled 21.2 percent.

Even before the Clinic opened, there has been a 16–foot utility easement—8 feet on either side of the property line—that separates the veterinary clinic and the property now owned by Shumaker Development. When the Clinic began operating in 1989, a chain-link fence running from north to south had been installed on the property now owned by Shumaker Development. The fence was not on the property line itself but approximately 8 feet east of the property line. The dispute here concerns this grassy strip of land between the actual property line and the location where the chain-link fence used to stand.

According to Dr. Anderson, she deliberately chose the particular condominium units for the Clinic in order to take advantage of the “green space” or grassy strip for the animals' needs. In fact, since the Clinic opened in 1989, employees of the Clinic exercised the animals in the Clinic's care on that 8–foot strip several times a day, every day of the year, including after business hours. Also, animal owners bringing their pets to the Clinic used the strip during business hours and walked their animals there before taking them into the Clinic.

At all times, Dr. Anderson and everyone involved with the Clinic believed that all of the land west of the chain-link fence was either part of the Clinic's property or part of the common area of the condominium development. At no point did either Westport Plaza Partnership or the prior occupant, KinderCare, ever complain about the Clinic's use of the strip. Westport Plaza Partnership, the managers of the common areas, planted grass, mowed, trimmed, and otherwise kept up the disputed property as part of its maintenance responsibilities for the common areas of the condominium development.

The disagreement over who actually owned the disputed property never arose until Shumaker Development purchased the property. In the summer of 2008, in order to improve the drainage, Shumaker Development removed the chain-link fence to do some grading on its property and the utility easement.

The business neighbors began to quarrel about the strip. In 2010, Shumaker Development sent a letter to Westport Plaza Partnership complaining about the Clinic, “asserting false claims about odor and threatening legal action.” Dr. Anderson contended that immediately after this,

“Roger Shumaker began intimidating my clients, making rude remarks when they walked [a] dog outside, and began taking pictures of clients and my female employees who were of high school age. He and his wife installed a video camera or other type of camera and kept it trained on my business, employees and clients whenever they were outside.”

In May 2010, an attorney representing Shumaker Development sent a letter to the Clinic demanding that it no longer use the disputed property.

The Clinic takes legal action.

On June 11, 2010, the Clinic filed a petition claiming ownership of the disputed property under the theory of adverse possession by “open, exclusive and continuous possession ... either under a claim knowingly adverse or under a belief of ownership” since the Clinic opened over 15 years earlier (Count I). The Clinic named Westport Plaza Partnership as a necessary party. The Clinic subsequently amended its petition, arguing in the alternative that its use of the disputed property amounted to a prescriptive easement (Count II). The Clinic also included an allegation that Shumaker Development's conduct amounted to tortious interference with a business relationship (Count III).

In August 2010, the district court granted Westport Plaza Partnership's motion to drop it as a third-party plaintiff under K.S .A. 60–221. Eventually Shumaker Development answered and raised a counterclaim, claiming ownership of the strip. Shumaker Development sought dismissal of all counts against it and also sought damages for trespass.

The relationship between the Clinic and Shumaker Development continued to deteriorate. In August 2010, Shumaker Development complained to the City of Topeka that the Clinic had violated municipal zoning codes. The City of Topeka zoning administrator sent the Clinic a letter informing it would be in violation of Topeka Municipal Code 18.225 as a business zoned C–4 if any of its animals were defecating outside of the Clinic. In her affidavit, Dr. Anderson maintains that “[t]he situation was only resolved when Braxton Copley, attorney for the city of Topeka, intervened and made the zoning office back off, because my business and actions were all legal under our current zoning.”

Then, in October 2010, Shumaker Development called the police on three separate occasions and complained about the noise of the dogs barking coming from inside the Clinic. No citations were issued.

In March 2011, Shumaker Development tried to place fence posts along what it believed to be the property line, but a temporary restraining order prevented the completion of a new fence. Both parties dispute whether the court's order permitted all of the fence posts to remain pending the outcome of the litigation or whether all of the line posts, except the end posts, were to be removed. The Clinic removed the line posts anyway, and Shumaker Development complained to the police against the Clinic for criminal vandalism. No citations were issued.

By April 2011, the dispute reached the point where the Clinic sought to amend its petition to add a claim of harassment, alleging that during the course of litigation Shumaker Development had intentionally terrorized its clients and filed various fraudulent complaints that harmed its business relationships.

That same month, Shumaker Development commissioned a survey. Neither party disputes the survey's findings. The survey fixed the legal boundary between the two properties at the center of the 16–foot utility easement, about where Shumaker Development had placed the new fence posts.

The Clinic asked for summary judgment on its claims of adverse possession and harassment. In its opinion, the district court first ruled that the Clinic had standing on its adverse possession claim and it would construe Shumaker Development's motion to dismiss as a motion for summary judgment.

The district court then granted summary judgment to Shumaker Development on the Clinic's claims of adverse possession and prescriptive easement. The district court found that the Clinic did not a have a satisfactory belief of ownership because it could not establish an exclusive belief of ownership in a common area it shared with other owners in the development or with the Westport Plaza Partnership. The district court also found that the Clinic failed to meet its burden to produce evidence that its use of the disputed property was knowingly adverse.

Lastly, the district court granted the Clinic's proposed amendment to add a claim for harassment, Count IV, and gave the Clinic the opportunity to supplement its pleadings.

At a hearing on May 11, 2012, the district court denied the Clinic's motion to alter...