Fitzpatrick v. Hudgins, 2017-CA-001699-MR
| Decision Date | 26 October 2018 |
| Docket Number | NO. 2017-CA-001699-MR,2017-CA-001699-MR |
| Parties | ROBERT FITZPATRICK AND TAMMY MARIE FITZPATRICK APPELLANTS v. ROY A. HUDGINS APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM GREEN CIRCUIT COURT
In 1965, Roy's father, Chester, purchased what was represented to be a 32.5-acre tract of land in Green County, Kentucky (the "Parent Tract"). In 1973, Chester divided the Parent Tract into two tracts, selling what was represented to be a 30-acre tract to Alvie Swartz ("Tract 1"). The remaining 2.5-acre tract ("Tract 2") was retained by Chester until his death in 1997, at which time Roy acquired it by virtue of Chester's will and a deed from Roy's siblings. Tract 1 was conveyed multiple times over the passing years. Ultimately, in 2006, Tract 1 was purchased by the Fitzpatricks from Jerry Durrett, J.T. Stearman, and their wives. The legal description of Tract 1 in the deed to the Fitzpatricks states as follows:
BEGINNING at a point in Charlie Martins line; thence westward with Martins line of N.E. Whitlows line; thence turning left and running and following a private roadway in a southern direction to the Greensburg and Munfordville Road; thence with said road S 45 E 6 poles; thence S 67 E 16 poles; thence E 14 poles; thence S 67 E 22 poles; thence S 40 thence starting a new line at a white oak tree on the bank of the Greensburg and Munfordville Road going north to a corner roack [sic]; thence with another new line east to a stone at a corner in the Claud McCubbin's lands containing 30 acres, more or less.
Following the legal description, the parties inserted a page into the deed, page 624. Page 624 bears the same date as the deed and was signed by all parties to the transaction. Excluding the signatures and the date, the entirety of Page 624 statesas follows: "It is agreed that the tract of acreage being sold for $36,000 contains 24 Acres."
In 2012, the Fitzpatricks hired a licensed surveyor, James Banks, to determine the boundaries of Tract 1 as called for in the deed.1 Banks first surveyed the Parent Tract as called for in the source deed and discovered that it actually contained 36.5 acres. He then used the calls found in the Fitzpatricks' deed to determine the boundary lines of Tract 1, including the boundary line shared with Tract 2. Once the survey was complete, Robert, Banks, and Roy met to discuss the results. Banks explained to Roy that the Parent Tract actually contained 36.5 acres and that, after he surveyed off the 30 acres belonging to the Fitzpatricks, that left Roy with a 6.5-acre parcel rather than a 2.5-acre parcel. Banks then showed Roy the plat he had drafted and pointed to where he had determined the boundary line between Tract 1 and Tract 2 was located. Roy disputed that the boundary line identified by Banks was, in fact, the actual boundary line. Instead, Roy pointed to a different area on the plat, where an old fence line is located, as the true boundary line. The boundary line as claimed by Roy divided the Parent Tract so that Tract 1 contained approximately 24 acres, and Tract 2 contained approximately 13.5 acres.
In July of 2013, the Fitzpatricks filed the underlying suit against Roy in the Green Circuit Court, seeking to quiet title to the 6.915 acres that Royclaimed belonged to him (the "Disputed Property"), compensatory damages for Roy's trespass on the Disputed Property, and treble damages for any timber that Roy may have removed or sold from the Disputed Property. Roy filed an answer on July 18, 2013, generally denying all allegations contained in the complaint. On April 3, 2014, Roy was granted leave to file an amended answer and counterclaim, in which he asserted that he was the owner of the Disputed Property by virtue of adverse possession and sought judgment quieting title to the Disputed Property in his favor. In his amended answer and counterclaim, Roy additionally noted that, while the legal description in the Fitzpatricks' deed stated that Tract 1 contained "30 acres, more or less," Page 624 explicitly stated that, "It is agreed that the tract of acreage being sold for $36,000 contains 24 Acres."
On October 24, 2016, Roy moved for summary judgment. In his supporting memorandum, Roy informed the trial court that, on September 9, 2016, the Durretts and the Stearmans had conveyed the Disputed Property to him by way of a quitclaim deed. The consideration for the quitclaim deed was stated as follows:
NOT A MONETARY TRANSACTION: The purpose of this quitclaim deed is to establish that: (a) the deed from Grantors herein to Robert Fitzpatrick and Tammy Fitzpatrick, dated March 3, 2005 [sic], and found in Deed Book 214, page 523, Office of the Green County Clerk, Kentucky, only conveyed approximately 24 acres with the balance of said property having been retained by the Grantors herein; (b) the boundary between the Fitzpatrickproperty referenced above and the adjacent Roy Anthony Hudgins property has always been understood to follow the old boundary fence mentioned in the legal description below; (c) at all times known to Grantors herein continually since 1973, Roy Anthony Hudgins or his predecessors in title (his father and mother) Chester Hodgins and Lois Hudgins, have exclusively claimed the land described herein to the old boundary fence; and (d) by virtue of Roy Anthony Hudgins and his predecessors having adversely possessed this subject property, Grantors maintain that Mr. Hudgins is the rightful owner of the balance of the property reserved by Grantors and therefore, Grantors hereby gift their interest to Grantee.
Roy additionally noted that by inserting Page 624 into the deed conveying Tract 1 to the Fitzpatricks, the Stearmans and Durretts had gone to great lengths to establish that the property being conveyed was only 24 acres. Based on the existence of the quitclaim deed and the limiting language in Page 624, Roy contended that the Fitzpatricks simply had no claim to the Disputed Property. Alternatively, Roy argued that he and his predecessors in title had continuously exerted total dominion and control over the Disputed Property, and had, therefore, met all requirements to claim the Disputed Property through adverse possession.
On January 23, 2017, the Fitzpatricks responded to Roy's motion for summary judgment and filed a competing motion for summary judgment. The Fitzpatricks contended that Page 624 had only been inserted into their deed because the Durretts and the Stearmans had never surveyed Tract 1, and did notwant to subject themselves to a lawsuit in the event that Tract 1 contained less acreage than stated in the legal description. However, the Fitzpatricks contended that the Stearmans and Durretts had intended to convey the entirety of Tract 1 to them, which, according to the legal description contained in the deed, included the Disputed Property. They argued that if the Stearmans and Durretts had intended to except the Disputed Property from the sale, that language should have been included in the legal description of Tract 1. The Fitzpatricks contended that Roy could not claim the Disputed Property under a theory of adverse possession, as they contended Roy's deposition testimony had established that his use of the Disputed Property had been neither continuous nor adverse. Additionally, they argued that the quitclaim deed was ineffective, as the Durretts and the Stearmans no longer had any interest in the Disputed Property to transfer. Both motions for summary judgment were denied by order dated February 7, 2017.
Both parties renewed their motions for summary judgment in July of 2017, and both motions were denied from the bench on August 2, 2017. A bench trial was held on August 7, 2017. Robert testified first for the Fitzpatricks. Robert testified that he had first inquired into purchasing Tract 1 in 1999, when it was owned by David Curry. At that time, Curry was asking $65,000 for Tract 1, and he informed Robert that it contained 35 acres. Robert pulled the deed for Tract 1, saw that the legal description stated that it only contained 30 acres, and declined topurchase it. In 2006, Robert saw Durrett and Stearman on Tract 1 cutting timber and approached them about purchasing it. After some negotiation, Durrett and Stearman agreed to sell Tract 1 to Robert for $36,000. Robert testified that, during negotiations, there was some discussion about Tract 1 containing less acreage than stated in the legal description. Stearman and Durrett told Robert that they were unsure about the front boundary lines of Tract 1, but that it contained anywhere between 24 and 30 acres. However, Robert stated that he was confident that Tract 1 did contain 30 acres, based on the legal description contained in the deed.
Robert testified that he did not prepare the deed to him from the Durretts and Stearmans and that he was not responsible for asking an attorney to prepare it. When questioned about why Page 624 had been incorporated into the deed, Robert first stated that it had been "sprung on him" at the closing without explanation. While Robert acknowledged that he and his wife had both signed Page 624, he testified that he at no point agreed to purchase anything less than what was included in the legal description of Tract 1. He stated that he had discussed the possibility that Tract 1 might not contain 30 acres with Stearman and Durrett; however, his understanding had been that if Tract 1 contained more than 24 acres, the entire parcel would be his. Robert stated that he believed that Page 624 had been included in the deed to protect the Stearmans and...
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