Ogden v. Beverly
| Decision Date | 04 October 2013 |
| Docket Number | NO. 2011-CA-001227-MR,2011-CA-001227-MR |
| Parties | EMMETT LEE OGDEN, JR., and VICTORIA ANN OGDEN APPELLANTS v. RUSSELL BEVERLY, NOW DECEASED (NOW IDA BEVERLY); ALMA BEVERLY CASEY; WILMA BEVERY PARRISH; ANNA CRAVENS; BOULDER LLC; LITER BROTHERS, LLC; LITER'S QUARRY, INC. (NOW LITER'S, INC.); CEDARVILLE LUMBER, LLC; HUBBERT C. SNIDER; and ALL UNKNOWN PERSONS WHO CLAIM ANY INTEREST IN THE SUBJECT MATTER OF THIS ACTION, TOGETHER WITH ANY UNKNOWN SPOUSES OF THE ABOVE NAMED DEFENDANTS AS WELL AS ANY UNKNOWN SPOUSES OF ANY UNKNOWN PERSONS WHO CLAIM ANY INTEREST IN THE SUBJECT MATTER OF THIS ACTION APPELLEES |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM HENRY CIRCUIT COURT
Our decision to dismiss this appeal as interlocutory is based upon two procedural issues regarding quiet title actions: 1) when a quiet title action should be dismissed with prejudice; and 2) when a defense in a quiet title action should be treated as a counterclaim. To address these issues and their relation to this appeal, it first becomes necessary to review what a quiet title action is. The authority for maintaining a quiet title action is codified at Kentucky Revised Statute (KRS) 411.120, entitled "Action to quiet title; court order if title proved." In total, that statute provides:
Any person having both the legal title and possession of land may prosecute suit, by petition in equity, in the circuit court of the county where the land or some part of it lies, against any other person setting up a claim to it. If the plaintiff establishes his title to the land the court shall order the defendant to release his claim to it and to pay the plaintiff his costs, unless the defendant by his answer disclaims all title to the land and offers to give suchrelease to the plaintiff, in which case the plaintiff shall pay the defendant's costs, unless for special reasons the court decrees otherwise respecting the costs.
In other words, a quiet title action is a special statutory proceeding for a declaration of rights with respect to land. One person who has claimed title to land is attempting to have a court silence another person's claim of title to the same land; this statute specifies that the affirmative relief sought by the person initiating a quiet title action, i.e., the plaintiff, is a court order directing "any other person setting up a claim to [the land at issue] . . . to release his claim to it and to pay the plaintiff his costs[.]" Id. And, to receive a court order granting this affirmative relief, the plaintiff must as a threshold matter demonstrate two prerequisites: "both the legal title and possession of the land[.]" Id.
What KRS 411.120 does not state is equally important in this matter. KRS 411.120 does not state that the "other person setting up a claim to [the land]" has any obligation to prove legal title and possession of the land in order to qualify as a "defendant" in a quiet title action. This is because a plaintiff prosecuting a quiet title action "must recover on the strength of his title and not upon the weakness of his adversary's title, or the fact that his opponent has no title." Gabbard v. Lunsford, 308 Ky. 836, 215 S.W.2d 985, 986 (1948). Stated differently, proving legal title and possession are prerequisites to seeking affirmative relief (i.e., the "court order" commanding "the defendant to release his claim to [the land] and to pay the plaintiff his costs," Id.). And, unless the defendant asserts a counterclaim to quiet title, the defendant is not seeking anyaffirmative relief at all—the defendant is simply opposing the plaintiff's efforts to silence the defendant's unproven claim to the land.
Similarly, KRS 411.120 does not state that plaintiffs in quiet title actions forfeit their own claims to the land in question if they fail to establish both title and possession and are thus unsuccessful in prosecuting a quiet title action. Establishing title and possession are precedent conditions to maintaining a quiet title action and receiving affirmative relief. Vogler v. Salem Primitive Baptist Church, 415 S.W.2d 72, 75 (Ky. 1967). Absent a counterclaim from the defendant to quiet title to the land, the only question before the court in a quiet title action is whether the plaintiff has made the requisite showing of legal title and possession to establish a right to silence the defendant's claim. See, e.g., Whitaker v. Shepherd, 280 Ky. 713, 134 S.W.2d 604, 606 (1939) (); Bentley v. Kentland Coal & Coke Co., 242 Ky. 511, 46 S.W.2d 1077, 1078 (1932) ( ); see also Davis v. Daniel, 295 Ky. 717, 175 S.W.2d 501 (1943) ().
Thus, returning to the first of the two procedural issues in this matter: if the only party requesting affirmative relief in a quiet title action is unsuccessfulin demonstrating both possession of and title to the land at issue, the proper disposition of a quiet title action is generally a dismissal without prejudice—in other words, a return to the status quo of two or more parties each maintaining unproven claims to the same land.
The reason for this is relatively straightforward: for a judgment to have any kind of res judicata effect it must be, among other things, on the merits. Beverage Warehouse, Inc. v. Com., Dept. of Alcoholic Beverage Control, 382 S.W.3d 34, 46 (Ky. App. 2011). Failing to sufficiently demonstrate the statutory prerequisites of title and possession effectively precludes the circuit court from reviewing the merits of a quiet title claim. See, e.g., Cumberland Co. v. Kelly, 156 Ky. 397, 160 S.W. 1077, 1078 (1913) ( ); see also Rowe v. Kidd, 259 F. 127, 129 (6th Cir. 1919):
The dismissal of the bill upon the merits must, however, we think, be taken as an implied holding that the plaintiffs' possession had been sufficiently made out, since otherwise the bill should have been dismissed for want of such possession, without prejudice. It is well settled, as we formerly stated, that under the federal equity practice, as well as under the Kentucky Act of July 3, 1893 (Ky. St. Sec. 11), a bill in equity to remove cloud from plaintiffs' title, or, as it appears to be called in the Kentucky practice, a bill to quiet title, will not lie where the plaintiff is not in possession of the premises, andcannot be maintained without proof both of possession and legal title.
Moreover, in doing nothing more than dismissing a plaintiff's quiet title claim, a court has effectively refused to determine that any party's claim to the land at issue is superior to anyone else's claim. The court has, therefore, effectively exercised its authority under KRS 418.0651 by declining to settle or declare any party's rights regarding the land at issue.
Indeed, even if a defendant asserts a quiet title counterclaim against the plaintiff and requests affirmative relief in its own right, doing so does not guarantee that either the defendant or the plaintiff will receive any affirmative relief from the court. That is, in the event that neither party is able to satisfy the prerequisites of KRS 411.120, the proper procedure is for the court to decline to take any action until the litigants file such pleadings and offer such proof as is necessary to a final and correct decision, or to propound questions to the parties and require pleading and proof thereon, or, failing that, to dismiss the plaintiff'sand defendant's respective quiet title claims. See Ellis v. Chestnut, 289 S.W.2d 740, 741 (Ky. 1956); Peabody Coal Co. v. Rutter, 283 S.W.2d 842 (Ky. 1955); Duckwall v. Gregg's Adm'r, 297 Ky. 730, 181 S.W.2d 263, 265 (Ky. 1944) ("ordinarily, when both the plaintiff and defendant fail to establish title in an action to quiet title both the petition and counterclaim should be dismissed" (citing Nicholson v. Shear, 225 Ky. 53, 7 S.W.2d 516 (1928)); Strunks Lane & Jellico Mountain Coal & Coke Co. v. Anderson, 276 Ky. 576, 124 S.W.2d 779 (1939).2
We now address the second procedural issue raised in this matter: when a defense in a quiet title action should instead be treated as a counterclaim. As noted, sometimes a defendant will simply deny the plaintiff's allegations of title and seek no affirmative relief. More often, a defendant will assert a quiet title counterclaim against a plaintiff in an effort to have the matter finally resolved; doing so obligates the court to consider all of the evidence as to both the plaintiff's and defendant's competing claims and to at least pass upon the question of superiority of title. Whitaker, 134 S.W.2d at 607; see also Combs v. Combs, 238 Ky. 362, 38 S.W.2d 243, 244 (1931).
But, it sometimes becomes necessary for the court to treat a defendant's "affirmative defense" in a quiet title action as a "counterclaim."
Consider, for example, the "affirmative...
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