Hammond v. Hammond

• Jurisdiction: Oregon
• Parties: Sherman HAMMOND, Plaintiff-Appellant, Cross-Respondent, v. Michael Coleman HAMMOND, Defendant-Respondent, Cross-Appellant.
• Citation: 296 Or.App. 321,438 P.3d 408
• Docket Number: A162225
• Court: Oregon Court of Appeals
• Decision Date: 27 February 2019

296 Or.App. 321

438 P.3d 408

Sherman HAMMOND, Plaintiff-Appellant, Cross-Respondent,

v.Michael Coleman HAMMOND, Defendant-Respondent, Cross-Appellant.

A162225

Court of Appeals of Oregon.

Argued and submitted September 8, 2017.

February 27, 2019

Eugene V. Anderson, Medford, argued the cause for appellant-cross-respondent. Also on the briefs was Davis, Hearn, Anderson & Turner.

Robert M. Stone, Medford, argued the cause and filed the briefs for respondent-cross-appellant.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

SHORR, J.

Plaintiff Sherman Hammond and defendant Michael Hammond are brothers who have been litigating over a 49-acre piece of real property in Jackson County since 2009. Defendant lives on the subject property, known as Jackson County Tax Lot 800, and plaintiff lives on an adjacent lot. In a previous case that was twice before this court, it was determined that plaintiff holds title in fee simple to Tax Lot 800. After the decision in that case became final, plaintiff initiated this litigation by filing a claim for ejectment. Defendant responded with a counterclaim for adverse possession and raised a statute of limitations defense. After a bench trial, the trial court entered a general judgment denying both plaintiff’s and defendant’s claims. The trial court ruled that defendant had not established the boundaries of the property he claimed to have adversely possessed, but found that the 10-year statute of limitations barred plaintiff’s claim for ejectment. Plaintiff appeals from the judgment, assigning error to the trial court’s ruling that the statute of limitations barred his claim of ejectment. Defendant cross-appeals from the same judgment, assigning error to the trial court’s denial of his claim of adverse possession. For the following reasons, we affirm the trial court’s denial of plaintiff’s claim for ejectment as barred by the statute of limitations, and we also affirm the trial court’s denial of defendant’s claim for adverse possession.

Because plaintiff’s ejectment claim is an action at law, Spears v. Dizick , 235 Or. App. 594, 598, 234 P.3d 1037 (2010), with respect to plaintiff’s appeal, we review the trial court’s factual findings for any competent evidence to support those findings and its legal conclusions for legal error. McIntyre v. Photinos , 175 Or. App. 478, 482, 28 P.3d 1259 (2001).

Because defendant’s adverse possession claim is in equity, id. at 482-83, 28 P.3d 1259, we have discretion to review the trial court’s findings of fact de novo . ORS 19.415(3)(b). However, de novo review is generally disfavored and is reserved only for "exceptional cases." ORAP 5.40(8)(c). Defendant requests that we exercise our discretion to review de novo because "the trial court’s decision does not comport with uncontroverted evidence in the record." We disagree and decline to take de novo review. Instead, we accept the trial court’s findings of fact that are supported by the evidence and review for legal error whether those facts establish the elements of the parties’ claims.

Sea River Properties, LLC v. Parks , 355 Or. 831, 855, 333 P.3d 295 (2014). We state the following facts consistently with that standard.

The parties’ parents originally purchased Tax Lot 800 in 1946 and lived in a home near the southwest corner of the lot. Defendant moved onto Tax Lot 800 around 1973 and has lived in various houses and trailers in the northeast and southwest quadrants of the lot since that time. The parties’ other brother, Jerry Hammond, has also lived on Tax Lot 800 in a house on the western side of the lot since 1976. Plaintiff resides on Tax Lot 600—a 43-acre lot immediately south of Tax Lot 800—which he purchased in 1972 and has lived on since 1975.¹

In 1985, after the death of the parties’ father, the parties’ mother deeded Tax Lot 800 to plaintiff. Since 1985, plaintiff has paid the property taxes for Tax Lot 800. Plaintiff also performed maintenance on the property, such as brush clearing and mowing, though it is not clear when and where on the property this maintenance occurred. Sometime in 1996 or 1997, defendant moved into his mother’s house at his mother’s invitation, to provide care for her.

The parties’ mother died on October 8, 2001. A few days later, defendant encountered plaintiff outside of a memorial service for their mother and "threw at him" a copy of their mother’s will, stating in effect that he was doing so "pursuant to instructions from their mother." The will purported to divide Tax Lot 800 into "four equal parts," and it gave defendant two of the quarters. The will stated, in relevant part:

"I am dividing my realestate [sic ] into four equal parts. Myself controlling one part and each of my three sons controlling one part. [M]aking up a total of four parts. To my son Michael Coleman I leave the fourth of realestate where he now lives (North east quarter) and my quarter where my house sits. (Southwest quarter) I leave my entire house and out buildings and entire contents and all my automobile [i]nterests for being my care-giver for all these years......to my son Michael Coleman........"

The will also purported to give plaintiff the southeast quarter of Tax Lot 800 and "legal control" over the northwest quarter, while Jerry and his wife would receive only "the right to pass to and from where he now lives and the blessing of living there for life." While some other personal property is mentioned in the will—namely, the house and its contents, outbuildings, and automobile interests that were to go to defendant—the vast majority of the nine-page document is intended to divide and devise Tax Lot 800.

The parties had no further direct communication about the will until 2009. Plaintiff discussed the will with his wife, and plaintiff testified that he became aware that defendant claimed an ownership interest in Tax Lot 800 in 2001, when he read the will. Plaintiff and his attorney engaged in the following colloquy at trial:

"Q. Until the septic incident in 2003/2004, did you have any idea that [defendant] was claiming some kind of ownership interest in the property?

"A. The only kind that I saw was on the will.

"Q. Okay.

"A. If that was a claim, I guess.

"* * * * *

"Q. And when was the first time that you saw this will that got entered into the probate case?

"A. I think the day after she—my mom died, or the second day."

Plaintiff’s attorney posed the same question to plaintiff’s wife, and she gave a similar answer:

"Q. * * * [D]id you ever discuss with [plaintiff] the fact that [defendant] was making a claim of ownership of tax lot 800?

"A. Yes. Probably, yeah.

"Q. And when did that issue first arise, the issue being [defendant] claiming an ownership interest in the real property?

"A. I suppose when we saw the will."

Meanwhile, defendant continued to live in his mother’s home on Tax Lot 800 after her death. He began to accumulate large quantities of "junk" around the house. Eventually the accumulation became so great that it blocked the access road to plaintiff’s and Jerry’s houses. Plaintiff and his wife asked defendant on a number of occasions to remove or organize the "junk," but the condition of the property where defendant lived only worsened. Jerry testified that, because of the block in the road, he had not been to the part of the property where defendant lived since 2002. Plaintiff’s wife testified that she stopped going to that part of Tax Lot 800 because she felt intimidated by defendant.

Beginning around 2002, defendant paid plaintiff’s wife $ 50 per month for 14 months. The parties never referred to these payments as "rent," and defendant could not say what the money was used for. Plaintiff’s wife testified that the money was used for past-due bills that had accumulated since the death of the parties’ mother.

In 2003 or 2004, plaintiff discovered a man digging up a septic tank on Tax Lot 800. Plaintiff discovered that defendant had told the man that defendant owned the land and authorized the man to dig up the tank. Defendant continued to live in his mother’s house until 2011, when the water was shut off. At that point, defendant moved into a trailer approximately 70 to 100 yards from the house, "[v]ery near the property line."

In March 2009, defendant sought to probate his mother’s will. In the course of that litigation, it was ultimately decided that the 1985 deed gave Tax Lot 800 to plaintiff as an inter vivos gift with a delayed right of enjoyment, and thus the devise to defendant in the will had no effect.² After that decision became final in 2014, plaintiff filed this action for ejectment. As noted, defendant asserted a statute of limitations affirmative defense and a counterclaim for adverse possession.³

After a bench trial, the trial court issued a letter opinion, ruling that defendant had proved adverse possession of "the property" and that plaintiff’s claim for ejectment was barred by the statute of limitations in ORS 12.050. Then, upon plaintiff’s motion for reconsideration, the trial court issued a second letter opinion in which it reversed its decision on defendant’s counterclaim for adverse possession. The trial court determined that defendant had failed to establish the boundaries of the land he claimed to possess, and that the court would be required to "guess at setting the boundary lines." The court observed that defendant’s claim at trial appeared to be coextensive with the gift in his mother’s will:

"[H]e appeared to maintain that the property he was claiming by adverse possession was coextensive with the portion of the property that was bequeathed to him in his mother’s will. Although the contents of the will were relevant on the narrow issue of notice, and this is the case only because a copy of it was provided to Plaintiff, the will has no relevance on the issue of exclusive possession. It might have been relevant if, for example, Defendant had testified that he tried to keep everybody out of the area within Tax Lot 800 his mother attempted to give him in

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