Buffum v. Sepulveda
| Docket Number | PC-2020-00554,PC-2020-02432 |
| Decision Date | 21 November 2023 |
| Parties | JOHN BUFFUM, ET AL. v. EDGAR SEPULVEDA EDGAR SEPULVEDA v. JOHN BUFFUM, ET AL. |
| Court | Rhode Island Superior Court |
For John Buffum, et al.: Harris Weiner, Esq.
For Edgar Sepulveda: Armando Batastini, Esq.
This matter is before the Court for decision after the completion of a bench trial.
In December 2003, Mr. and Mrs. Sepulveda purchased property at 7 Half Mile Road in Barrington, Rhode Island. Mr. Sepulveda holds a real estate license and is an appraiser. In October 2012, he transferred that real estate to the 7 Half Mile Living Trust, for which he is the trustee. The property next door at 5 Half Mile Road was owned by Mr. and Mrs. John Ryan. The two properties share a common border. In 2007, David Gardner, a registered land surveyor, performed work in the area to create a new administrative subdivision for Mr Sepulveda and Mr. Zawatsky, a neighbor who lives several doors down. Apparently, they were reconfiguring the property lines for the areas behind their properties. Mr. Gardner set two separate capped rebars as boundary markers between the two properties at issue and located a concrete monument which was an existing boundary marker near the established boundary between the two properties at the street. That concrete marker is pictured in Joint Exhibit 19.[1] In 2015 or 2016, Mr. Ryan became infirm and moved into a nursing home. Mr. Buffum and Ms. Salem, husband and wife, purchased Mr. Ryan's property in June 2018.
After Mr. Ryan became ill, moved to a nursing home, and the house was vacant, Mr. Sepulveda reconfigured the driveway in the front of his home. Under his supervision, a straight driveway became a circular driveway, and the vegetated area adjacent to the driveway and on the Ryan/Buffum/Salem side of the boundary was trimmed, replanted, and mulched. The Court finds the new driveway was installed in 2016 or 2017. There were no signs or other markers placed along the driveway or border area.
In June 2018, Mr. Buffum and Ms. Salem moved into their new home (the former Ryan home). They promptly set about cleaning up the overgrown vegetation on the property, starting with the growth along the two borders on the sides of 5 Half Mile Road. Having just moved in, seeing no notices and seeing nothing along the Sepulveda border, Mr. Buffum trimmed the shrubs, removed large vines, cleaned and mulched the garden areas, and cleaned along the borders from the street to the fence line behind their home. Buffum/Salem then moved to repair fences to seal some of their backyard, installing a chain link fence across the backyard. They installed a six-foot stockade fence near the Sepulveda border stretching to the Buffum/Salem garage. A portion of the Sepulveda border had a separate older and leaning stockade fence. Buffum/Salem approached Mr. and Mrs. Sepulveda, introduced themselves, complimented them on the appearance of their home and yard, and described their plans. They asked the Sepulvedas to share the cost of the new fence. Mr. Sepulveda refused to contribute but did not object to the installation.
In September 2018, Buffum/Salem surveyed their property with Mr. Gardner. Mr. Gardner looked at the town hall records as well as an earlier survey he had done of the plat before conducting his field study. See Joint Ex. 35. Mr. Gardner looked at a 2007 survey which is Joint Exhibit 35. Mr. Gardner had set a rebar boundary with a cap and his identity tag on it along the border of the two properties in July 2008. That stake, circled on Joint Exhibit 21, was no longer there when Mr. Gardner conducted his 2018 survey. There was also a concrete monument which marks the intersection of the Sepulveda/Buffum/Salem border with the street which was located on the site when Mr. Gardner surveyed the area in 2007. The concrete monument is shown on Joint Exhibit 19 and is described in footnote one herein. Mr. Gardner also discovered that the concrete monument was gone when he conducted his 2018 survey, and he placed a new rebar at that corner.
In 2017, when Ms. Salem noticed stakes along the border (presumably guiding snowplows to the edges of the driveway) she thanked Mr. Sepulveda for protecting their property. Mr. Sepulveda declared it was his land. When Ms. Salem continued to question him, Mr. Sepulveda told her to have her husband discuss it with him. When Mr. Buffum addressed the border issues, Mr. Sepulveda asked Mr. Buffum why he was cutting hedges on his property. Mr. Buffum replied that the survey said it was his own property, and Mr. Buffum quoted Mr. Sepulveda as replying, "I've been maintaining this property exclusively and continuously for over ten years." (Trial Tr. 112:8-9, Oct. 3, 2023.) Later, Mr. Buffum pointed out the survey rebar on the ground (circled on Joint Exhibit 21). Mr. Buffum testified that the survey stake was missing from the area about ten days later.
In October 2019, Buffum/Salem placed Halloween decorations across the front of their yard. Their decorations near the Sepulveda border were removed.
Throughout their ownership, Mr. Buffum maintained and continued to maintain the disputed area. Mr. Sepulveda's landscaper would also go on the disputed area to blow leaves and rake. Mr. Buffum mulched the area. Within days after Mr. Buffum's mulching, Mr. Rufino (the landscaper for the Sepulvedas) added additional mulch and planted rhododendrons in the same area. When the two men met again, Mr. Sepulveda refused to look at the printed survey and repeated his "exclusive and continuous use" response.
Large white rocks were moved along the disputed area by Ms. Salem and the Sepulvedas. Mr. Buffum and Mr. Rufino continued to landscape the area. Mr. Rufino, the contractor for the Sepulvedas, was on the Buffum/Salem property and is pictured in the disputed area on Joint Exhibit 24. There were never any signs or indicia of ownership placed on the disputed area by the Sepulvedas-just the driveway itself crossing over the property line about eighteen inches and various plantings. Some of the Sepulvedas' circular driveway is on the Buffum/Salem land. Mr. Sepulveda never paid taxes on the disputed area or any of the Buffum/Salem property. All taxes and assessments were billed to Buffum/Salem and paid by them. The rebar boundary markers which Mr. Gardner installed are no longer inserted in the ground.
The two lawsuits consolidated here for trial were instituted in 2020. In January 2020, Mr. Buffum and Ms. Salem filed case number PC-2020-554 against Mr. Sepulveda claiming a trespass and praying for a declaratory judgment. In March 2020, Mr. Sepulveda instituted a separate action against Mr. Buffum and Ms. Salem in case number PC-2020-2432. Mr. Sepulveda's Complaint claimed adverse possession and harm from Buffam/Salem's use and enjoyment of his property and prayed for a declaration and an injunction. Mr. Buffum and Ms. Salem counterclaimed in trespass and a declaratory judgment. The parties stipulated to an agreement limiting the prejudgment use of the property and disputed area in March 2020. The cases were consolidated for trial. A nonjury trial was held on October 3 and 4, 2023.
Mr Rufino was Mr. Sepulveda's first witness. He served as the landscaper for several of the Sepulveda properties since about 2003. Mr. Rufino testified concerning his care of the disputed area but was extremely unsure of the dates stating, "I'm not good with dates." (Trial Tr. 15:16, Oct. 3, 2023.) He testified that he never saw or touched the boundary markers. He discussed with Mr. Sepulveda where the circular driveway would go. He produced no paperwork at trial. While he seemed like a pleasant man, he was not specific or reliable about when the driveway was built or when the mulching was done in the disputed area. His lack of memory about the concrete monument coming up four inches in the supplicated driveway (see Joint Exhibits 19 through 21) was very odd. The Court concludes that while he appeared straightforward, he was concerned about attempting to keep Mr. Sepulveda, his customer, satisfied with his testimony.
Mr. Sepulveda testified next but was not specific about the events which occurred. He produced no paperwork (but for his deeds) particularly concerning when the driveway was constructed. On cross-examination, he admitted seeing the missing boundary markers, but denied knowing where they were. This lessened his credibility. He claimed he did not remove the rebar, but saw it lying horizontal on the ground. Asked several times where the removed survey sticks were, he replied, "in my property" and refused to be more specific. (Trial Tr. 77-78, Oct. 3, 2023.) This answer was unresponsive and confrontational and just as vague as his deposition answers.
Mr. Sepulveda's lack of specifics, lack of paperwork to substantiate his testimony, and his vague response to what Mr. Gardner told him of the encroachments lessened his credibility considerably. He claimed he did not recall whether he filed anything on the land evidence records for this dispute or whether he prepared the outline of the disputed area shown on Joint Exhibit 6. He was just as vague about how he exercised control over the area or whether his use was notorious as well as about whether he had been shown the gardener survey before suit commenced. He later denied seeing the yellow surveyor's cap. This left the Court to question the reliability of his testimony.
Mr Buffum was pleasant, thorough, and well-spoken during his testimony. He was methodical and detailed in his description of the work on his property, conversations with Mr. Sepulveda, and the other events. He was cooperative and consistent, even on...
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