Henninger v. Brewster

• Decision Date: 13 January 2012
• Docket Number: No. 2010–CA–001110–MR.,2010–CA–001110–MR.
• Citation: 357 S.W.3d 920
• Parties: Brent HENNINGER and Mary Kay Henninger, Appellants, v. Suzy BREWSTER, Appellee.
• Court: Kentucky Court of Appeals

357 S.W.3d 920

Brent HENNINGER and Mary Kay Henninger, Appellants,

v.Suzy BREWSTER, Appellee.

No. 2010–CA–001110–MR.

Court of Appeals of Kentucky.

Jan. 13, 2012.

Nicholas C.A. Vaughn, Somerset, KY, for appellants.

Paul F. Henderson, Somerset, KY, for appellee.

Before ACREE, CLAYTON and WINE,¹ Judges.

OPINION

ACREE, Judge:

Appellants Mary Kay and Brent Henninger appeal the Pulaski Circuit Court's entry of summary judgment in favor of Appellee Suzy Brewster claiming the circuit court erred in determining no genuine issues of material fact exist with respect to Appellee's champerty defense under Kentucky Revised Statute (KRS) 372.070(1). Finding no error, we affirm.

I. Facts and Procedure

In 1996, James and Jettie Brewster purchased Lot 31, Section A, of the Diamond Acres Subdivision in Burnside, Kentucky (Lot 31) from Raymond Stacy. Shortly after purchasing the property, James and Jettie conveyed the property to their son, Freddie Brewster. In 1997, Freddie purchased a mobile home and placed it on the lot. Unbeknownst to Freddie, the mobile home occupied not only Lot 31 but also a portion of its neighboring lot, Lot 32. Since that time, Freddie and members of his family, including Appellee Suzy Brewster, have continuously utilized the mobile home.

On April 12, 2004, Freddie entered into a contract for deed for Lot 31 with Appellee Brewster.

Subsequently, on December 13, 2005, the Henningers purchased Lot 32 from the Corbitt Living Trust and Phyllis Corbitt ² via a limited warranty deed. After purchasing Lot 32, the Henningers discovered that a portion of Brewster's mobile home encroached on Lot 32.³ Consequently, on April 3, 2008, the Henningers filed a declaratory judgment action in Pulaski Circuit Court, pursuant to KRS 418.040, seeking a declaration that they are the legal owners of Lot 32, including the portion upon which Brewster's mobile home is located. Brewster promptly answered the complaint raising, inter alia, adverse possession and champerty as defenses.

In September 2008, the parties began discovery. Thereafter, in March 2009, the parties filed cross-motions for summary judgment. Specifically, the Henningers claimed there was no genuine issue of material fact that they were the title owners of Lot 32, that Brewster's mobile home encroached on their property, and that she and her predecessors-in-interest had not adversely possessed the property for the requisite fifteen years; as a result, argued the Henningers, they were entitled to judgment as a matter of law. On the other hand, Brewster claimed the Henningers' deed was champertous and void under KRS 372.070(1) because Lot 32, at the time the Corbitt Living Trust conveyed it to the Henningers, was in the adverse possession of Brewster and her brother, Freddie, before her.

Six months passed.⁴ On September 8, 2009, the Henningers renewed their motion for summary judgment. Following a hearing, they filed a second memorandum in support of their summary judgment motion and, in response, Brewster submitted two supplemental memoranda in support of her motion for summary judgment. As of December 29, 2008, the matter stood submitted.

On March 8, 2010, the circuit court granted Brewster's motion for summary judgment and denied the summary judgment motion filed by the Henningers. The circuit court concluded Brewster and her predecessor-in-interest, Freddie, adversely held the portion of Lot 32 upon which the mobile home was located since 1996 and, as a result, the deed conveying Lot 32 to the Henningers was champertous and void under KRS 372.070(1). The Henningers filed a timely motion to alter, amend, or vacate the judgment pursuant to Kentucky Rules of Civil Procedure (CR) 59.05. The circuit court denied the Henningers' motion; the Henningers promptly appealed.

As additional facts become relevant, they will be discussed.

II. Standard of Review

The trial court's decision to grant summary judgment is reviewed de novo. Harstad v. Whiteman, 338 S.W.3d 804, 809 (Ky.App.2011). In reviewing a trial court's grant of a motion for summary judgment, we must ascertain “whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App.1996); CR 56.03. In doing so, “[t]he trial court must view the evidence in the light most favorable to the nonmoving party, and summary judgment should be granted only if it appears impossible that the nonmoving party will be able to produce evidence at trial warranting a judgment in his favor.” Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky.App.2001) (citing Steelvest v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480–82 (Ky.1991)). In discussing the word “impossible” as set forth in the summary judgment standard, the Kentucky Supreme Court has held it is meant to be “used in a practical sense, not in an absolute sense.” Lewis, 56 S.W.3d at 436.

“The moving party bears the initial burden of showing that no genuine issue of material fact exists, and then the burden shifts to the party opposing summary judgment to present” evidence establishing a triable issue of material fact. Lewis, 56 S.W.3d at 436; Steelvest, 807 S.W.2d at 482. That is to say, “[t]he party opposing a properly presented summary judgment motion cannot defeat it without presenting at least some affirmative evidence showing the existence of a genuine issue of material fact for trial.” City of Florence, Kentucky v. Chipman, 38 S.W.3d 387, 390 (Ky.2001). The trial court “must examine the evidence, not to decide any issue of fact, but to discover if a real issue exists.” Steelvest, 807 S.W.2d at 480. “Because summary judgment involves only legal questions and the existence of any disputed material issues of fact, an appellate court need not defer to the trial court's decision and will review the issue de novo.” Id.

With these standards as our guide, we review the circuit court's order granting summary judgment in Brewster's favor.

III. Analysis

The Henningers contend the circuit court erred in granting summary judgment in Brewster's favor upon her defense of champerty under KRS 372.070(1) because Brewster's possession of a portion of Lot 32 was not hostile to the interest of the original grantor, Corbitt Living Trust. The Henningers' argument contains several subparts, namely: (1) the record is void of any evidence that Brewster's occupation of part of Lot 32 was hostile to its original grantor's interest; (2) Brewster failed to establish that it is impossible for the Henningers to produce evidence at trial negating the hostile element because if they were granted adequate time to conduct additional discovery, such evidence might be discovered; and (3) Brewster's mistaken belief that she and her family situated the mobile home solely on property owned by them, i.e. Lot 31, contradicts Brewster's claim that she adversely holds a portion of Lot 32.

In response, Brewster asserts that she, and her predecessor-in-interest, Freddie, have adversely held a portion of Lot 32 since 1996. Specifically, Brewster maintains her family placed the mobile home at issue in its current location in reliance upon boundary stakes purportedly identifying the boundary line between Lot 31 and Lot 32. Nonetheless, since that time, Brewster contends her family has adversely, continuously, openly and notoriously, and exclusively, possessed the mobile home and, in turn, the portion of Lot 32 on which it is located. As a result, Brewster argues, the relevant portion of Lot 32 was under adverse possession at the time Corbitt Living Trust conveyed Lot 32 to the Henningers; consequently, the circuit court correctly determined the deed was champertous and void under KRS 372.070(1), but only to the extent of the adversely-possessed portion of the property conveyed by the deed.

KRS 372.070(1) provides, in pertinent part, that “[a]ny sale or conveyance, including those made under execution, of any land, or the pretended right or title thereto, of which any other person has adverse possession at the time of the sale or conveyance, is void[.]” This statute, also known as the “champerty statute” operates to void a conveyance of land by a grantor to a grantee when such land is being held adversely by a third party. See Cowherd v. Brooks, 456 S.W.2d 827, 830 (Ky.1970). The policy and purpose underlying the champerty statute is to discourage litigation as well as the selling and buying of lawsuits. See Great Western Land Management, Inc. v. Slusher, 939 S.W.2d 865, 869 (Ky.1996); Hensley v. Clay, 306 Ky. 482, 208 S.W.2d 501, 502 (1948) (explaining the champerty statute's purpose “is to prohibit the purchasing of a suit or right of suing”). A claim of champerty may only be used, however, as a shield to or in defense of a claim, and may never be invoked affirmatively to claim title to land. Ballard v. Moss, 268 S.W.2d 35, 38 (Ky.1954).

There are “several criteria which must be met in order to establish adverse possession under the champerty statute. The nature and elements of adverse possession are that it must be: actual possession; open and notorious possession; exclusive possession; hostile ⁵ possession, and it must exist at the time of the conveyance claimed to be champertous.” Cowherd, 456 S.W.2d at 830. However, “[u]nder this statute ( KRS 372.070) possession ... need not be for any specific length of time. To render the conveyance champertous, and therefore void, it is sufficient if the adverse character of the possession is such as would ripen into a fee simple title under the limitation adverse possession rule had it continued uninterruptedly for the period prescribed.” Wells v. Wells, 346 S.W.2d 33, 36 (Ky.1961) (citing Phillips v. American Ass'n, Inc., 259 Ky. 402, 82 S.W.2d 456, 457 (1935)).

On the other hand, this does not mean that title automatically vests in the adverse possessor. Rather, until expiration of the fifteen-year period,...