In re the Estates of Herbert O. Allen

• Decision Date: 19 August 2011
• Docket Number: No. 10–408.,10–408.
• Citation: 30 A.3d 662,2011 VT 95
• Parties: In re the ESTATES OF Herbert O. ALLEN, Edward E. Allen and Edna L. Allen.Gary E. Rupev.Rupe Slate Company, Inc. a/k/a Rupe Slate Co. Inc. and Richard R. Rupe.
• Court: Vermont Supreme Court

30 A.3d 662

2011 VT 95

In re the ESTATES OF Herbert O. ALLEN, Edward E. Allen and Edna L. Allen.Gary E. Rupe

v.Rupe Slate Company, Inc. a/k/a Rupe Slate Co. Inc. and Richard R. Rupe.

No. 10–408.

Supreme Court of Vermont.

Aug. 19, 2011.

Tracee Oakman Rupe of Law Office of Tracee Oakman, P.C., Wells, for Plaintiff–Appellant Gary Rupe.Lisa Chalidze, Benson, and Theodore A. Parisi, Jr., Castleton, for Defendants–Appellees.Present: DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ., and CRAWFORD, Supr. J., Specially Assigned.DOOLEY, J.

¶ 1. This case originates from a quiet-title action by defendant Richard Rupe and his father, Michael C. Rupe, laying claim to certain mineral rights by way of adverse possession. Plaintiff ¹ Gary Rupe, Richard's brother, subsequently asserted his own claim to the mineral rights in question, and the probate court granted him a one-third interest in the rights. Defendant and his father appealed the probate decision to the superior court, which, after first granting summary judgment in favor of plaintiff on certain issues, ultimately dismissed plaintiff's claim to the mineral rights and awarded all rights, title, and interest to defendant.² Plaintiff now appeals this superior court judgment, arguing: (1) the court exceeded its authority by considering more than the issues raised in the statement of questions submitted on appeal from the probate court; (2) the court misstated the elements of proof for adverse possession and misapplied the law; (3) the court erred in failing to find adverse possession through cotenancy; and (4) the court erred in its requirements relating to a claim of unjust enrichment. For the reasons discussed below, we affirm.

¶ 2. The material facts of this controversy are largely undisputed. We include them in footnotes and in our discussion of adverse possession, infra, ¶ 12. Here, we set out the proceedings to date because they have taken a number of confusing twists and turns. The value of the property at the heart of the controversy lies in the mineral rights, first the slate that was extracted from it and then the gravel that was sold from it. Everyone apparently believed that the deeded title included the mineral rights, and the parties were in litigation over that title.³ That litigation ended when plaintiff gave up all interest in the title in return for a monetary settlement from defendant and the parties' father. Defendant then went forward to sell the property for use as a commercial quarry, and the purchaser discovered that an earlier owner of the property had in 1920 sold the land but reserved the mineral rights.⁴ The purchaser was unwilling to go through with the purchase until defendant and his father cleared title to the mineral rights.

¶ 3. Defendant and his father then brought a proceeding in probate court pursuant to 14 V.S.A. § 1801, alleging that the 1920 owner of the mineral rights had been deceased for over seven years, no estate had been opened to convey the mineral rights, and defendant and father had acquired title to them by adverse possession.⁵ Their claim of adverse possession, which was undisputed in the probate and superior courts, was based on the operation of a slate quarry on the property by defendant and father from at least 1964 until approximately 1972, followed from 1979 to 1999 by operation of a commercial gravel pit.⁶ The probate court action enabled the sale of the property after the probate court issued a judgment that defendant and father owned the mineral rights by adverse possession. Thereafter, plaintiff, who had not been served at the commencement of the probate court action, or otherwise given notice of the action, learned of the judgment and moved for relief from it, claiming co-extensive rights with his father and brother. The probate court granted plaintiff's motion without an evidentiary hearing on his adverse possession claim, and it awarded plaintiff a one-third interest in the mineral rights.

¶ 4. Defendant and father appealed to the superior court the decision to give plaintiff an interest in the mineral rights. Defendant's primary theory on appeal was that, by virtue of the earlier litigation between the brothers and father, plaintiff had lost any interest in the mineral rights. This theory was reflected in the four questions ⁷ that defendant and father sought to have determined pursuant to Vermont Rule of Civil Procedure 72(c):

1) Did the proceeding captioned “Michael C. Rupe, Richard Rupe vs. Gary Rupe, Rutland Superior Court Docket No. SO416–97 RcC[”] resulting in a Judgment Order dated May 20, 2004 resolve the parties' interest in and to the real property which is the subject matter of this litigation, including any mineral rights described in the real property described in the petition by the appellants filed in the Fair Haven Probate Court pursuant to 14 V.S.A. [§] 1801, being the same land involved in the prior declaratory judgment action in the Superior Court?

2) Is the appellee barred either through the application of [principles] of collateral estoppel or res judicata from asserting any claim to a fractional interest of ownership of the said mineral rights subsequently acquired by the appellants through probate petition?

3) Did the quit claim deed dated June 4, 2004, signed by the appellee, with respect to his claimed interest in a quarry parcel of approximately 70 acres, and given for valuable consideration in settlement of the Superior Court title action release and extinguish any and all claims or interests to any mineral rights located within its boundaries?

4) If the appellee claims that there were no mineral rights appurtenant to the land at the time of his quit claim deed, does the appellee have standing to assert any claims to such mineral rights acquired by the appellants through probate petition after the appellee's quitclaim release of all rights, title and interest in the subject property?

Plaintiff responded to the four questions by moving for summary judgment on all questions raised upon appeal, arguing that the outcome of the earlier litigation over the title to the property had no effect on the action with respect to the mineral rights. The superior court granted the motion for summary judgment on August 9, 2007.

¶ 5. Plaintiff followed up the summary judgment with a complaint for damages, seeking a one-third share in the proceeds from the sale of the property, based on a theory of quantum meruit. The docket entries indicate that this complaint was considered a counterclaim in the appeal litigation. A number of status conferences ensued to determine what to do next. During this period, father died and the litigation continued between the brothers.

¶ 6. In the status conferences, the parties presented very different views of the effect of the summary judgment. Plaintiff's view was that the summary judgment meant that he owned a one-third interest in the mineral rights and the only remaining action for the court was to determine his percentage of the sale proceeds. Defendant argued that he and father had sold only their interests in the mineral rights and plaintiff's remedy, if any, lies between him and the purchaser of the mineral rights. Important to this appeal, defendant also took the position that summary judgment resolved only the preclusive effect of the earlier litigation, and plaintiff had to prove in the superior court that he obtained a one-third interest in the mineral rights by adverse possession. These differences were not resolved until the second day of the three-day trial when the trial judge ruled that plaintiff had to prove his own adverse possession. At the end of the trial, the court ruled that plaintiff failed to prove his adverse possession and therefore had no interest in the mineral rights.

¶ 7. Plaintiff's main argument on appeal is that, under Rule 72, the superior court had no authority to address plaintiff's ability to prove an interest in the mineral rights by adverse possession because this was not an issue explicitly included in the statement of questions submitted by defendant when the case was first appealed from the probate court. Plaintiff argues that the dispute over his interest in the mineral rights was concluded when the court granted summary judgment for plaintiff on defendant's four questions.

¶ 8. In a case such as this, the proceeding in the superior court is a hybrid of an appeal from the probate court (now probate division) and a de novo proceeding that is conducted as if the probate court proceeding never occurred. See Whitton v. Scott, 120 Vt. 452, 458, 144 A.2d 706, 709–10 (1958). In these circumstances, the statement of questions required by Rule 72(c) has a limited function. Recently, we have held that while a list of certified questions is mandatory, it only “serves to focus, but cannot limit, the issues for the court.” In re Estate of Doran, 2010 VT 13, ¶ 14, 187 Vt. 349, 993 A.2d 436. In Doran, the statement of questions was properly submitted, the central issue being whether the wishes of the Doran property heirs had any bearing on decisions involving the property's sale. Id. ¶ 8. We held that, having answered this certified question in the affirmative, the superior court acted within its authority when it considered the separate issue of whether the intent of the heirs and administrators was accomplished in the sale as this was a “logical corollary” to the central issue on appeal and therefore within the “broad authority given to superior courts to try probate cases anew.” Id. ¶ 14.

¶ 9. Plaintiff claims that Doran is distinguishable from the case at hand because the superior court's decision in Doran was based on evidence presented for the first time during the superior court trial and much of the evidence related to actions occurring after the filing of the appeal. While those were the facts in Doran, our ruling—that the statement of questions does not exclude the superior court's de novo review of related...