Ruhland v. Elliott

• Decision Date: 10 July 2015
• Docket Number: 108,825.
• Citation: 353 P.3d 1124,302 Kan. 405
• Parties: Polly M. RUHLAND, f/k/a/ Polly Marie (Moore) Grant, Appellant, v. Sue ELLIOTT, Appellant, and Lorena Elliott, a/k/a Lorena Annis; Richard Elliott; Suzann Elliott; Roger Elliott; and Eric F. Grant, Appellees.
• Court: Kansas Supreme Court

302 Kan. 405

353 P.3d 1124

Polly M. RUHLAND, f/k/a/ Polly Marie (Moore) Grant, Appellant

v. Sue ELLIOTT, AppellantandLorena Elliott, a/k/a Lorena Annis; Richard Elliott; Suzann Elliott; Roger Elliott; and Eric F. Grant, Appellees.

108,825.

Supreme Court of Kansas.

July 10, 2015.

Don W. Noah, of Noah Law Office, P.A., of Beloit, argued the cause and Frank G. Spurney, Jr., of Spurney & Spurney, of Belleville, was with him on the briefs for appellants Polly M. Ruhland and Sue Elliott.

William R. Thompson, of Condray & Thompson, L.L.C., of Concordia, argued the cause and Scott R. Condray, of the same firm, was with him on the briefs for appellees.

Opinion

The opinion of the court was delivered by LUCKERT, J.:

This case arises from a dispute over the ownership of a 5.5–acre tract of real estate in Cloud County. The district court determined that Keith Elliott, who had at one time deeded away the land to his then-wife's daughter, had regained possession of the disputed tract through adverse possession. A panel of the Court of Appeals reversed on the issue subject to our grant of review, concluding that the district court's conclusion was not supported by substantial evidence. We now affirm the Court of Appeals' decision on that issue and reverse the judgment of the district court.

Facts and Procedural History

Keith purchased the disputed tract in 1963 as part of a larger purchase of approximately 80 acres. Keith built a metal building on the disputed tract sometime during 1980, but it is unclear when Keith actually began living on the land. Keith married Sue Elliott in 1988, and together they built an apartment inside the metal building and began living there.

After a few years, Keith and Sue became concerned the Internal Revenue Service or Keith's ex-wife might attach the disputed tract to satisfy Keith's unpaid debts. To avoid losing the property to a creditor, Keith and Sue decided to transfer ownership of the disputed tract to Sue's daughter from a former marriage, Polly Marie (Moore) Grant (now Polly M. Ruhland), and her husband, Eric Grant. Keith and Sue executed a warranty deed transferring the property on June 14, 1993, and the deed was recorded in Cloud County on the same date.

Despite the transfer of ownership, Keith and Sue continued living on the disputed tract in the same way as before: They maintained the disputed tract, made improvements such as planting trees and digging a well, and paid the property taxes. Keith and Sue did not execute a lease agreement or pay any rent, and Polly and Eric took no actions as owners or landlords and received no benefits from the property.

In 1999, Polly and Eric divorced. On March 9, 1999, in anticipation of the divorce, they executed a document labeled “QUIT CLAIM DEED” that purported to transfer their interest in the disputed tract to Sue alone. However, despite its title, this document did not follow the statutory language for quitclaim deeds and, although Polly mailed the document to Keith and Sue, it was never recorded. Sue testified at trial that she was not even aware of the document's existence until the present litigation, although it was found among Keith's private papers after his death. This “quit claim deed” did not significantly factor in the district court's decision and the district court did not determine its precise legal effect.

Keith and Sue lived together in the apartment on the disputed tract from 1988 until 2000. In September 2000, Sue moved to Pittsburg. She initially intended to return to the disputed tract after about a year, but she never did—ultimately, she remained in Pittsburg until she and Keith divorced in 2006.

But Keith continued living in the apartment. In August 2006 he leased a tract of real estate—which included a portion of the disputed tract—out for agricultural purposes. The tenant paid rent to Keith and testified at trial that he was not aware that someone other than Keith might own the property. Later, in 2008, Keith sold approximately 75 acres of real estate. He and the buyer discussed a simultaneous purchase of the disputed tract, but the final sale did not include it. The buyer testified at trial that Keith had said the buyer could always buy the disputed tract from Keith's daughter after he died, and the buyer further testified that he was unaware Keith might not be the actual owner of the land.

All told, Keith lived in the apartment on the disputed tract from 1988 until he died on May 8, 2009. His daughter, Suzann Elliott, then took possession of the disputed tract, maintained it, and paid all expenses—including taxes. Neither Polly nor Sue initially took any action to eject Suzann from the disputed tract, and indeed they did nothing to care for the property.

But sometime after Keith's death, his children and Sue's children began to dispute the ownership of certain personal property and the ownership of the disputed tract. In April 2010, Suzann filed a caveat affidavit claiming ownership of the disputed tract through Keith's adverse possession. Polly filed an interpleader action and sought a court order declaring that either she or Sue was the rightful owner of the disputed tract. Polly's ex-husband, Eric, quitclaimed to Sue any interest he might have had in the tract, thereby effectively removing himself from the litigation. Sue died during proceedings before the district court, but her death does not affect the issues in the case.

Suzann raised numerous defenses to Polly's claim to the disputed tract, but the district court granted summary judgment on all of Suzann's defenses in favor of Polly, save one—Suzann's allegation that Keith had reacquired ownership of the property via adverse possession. The case eventually proceeded to a bench trial on this sole issue. The district court held Suzann proved all of the elements of adverse possession by clear and convincing evidence, and it accordingly concluded Keith obtained title to the disputed tract by adverse possession, which he then passed to Suzann by intestate succession.

Polly appealed, and a panel of the Court of Appeals reversed on the grounds that Keith had only permissively occupied the disputed tract after he deeded it to Polly, a fact that defeated any adverse possession claim by Keith or his heirs. Ruhland v. Elliott, No. 108,825, 2013 WL 4046605, at *5–6 (Kan.App.2013) (unpublished opinion). Accordingly, the panel concluded that substantial competent evidence did not support the district court's conclusion that Keith had possessed the disputed tract under a knowingly adverse claim. 2013 WL 4046605, at *6.

Polly filed a petition for review regarding the district court's and panel's denial of her requests for costs, attorney fees, and sanctions. We denied her petition for review, but we granted Suzann's cross-petition for review on the adverse possession issue pursuant to K.S.A. 20–3018(b). Jurisdiction is proper under K.S.A. 60–2101(b).

Analysis

Suzann argues that Keith's occupancy was adverse, not permissive, because despite the deed to Polly he always acted as the owner and always intended his continued possession to be permanent. She also advances an argument, for the first time on appeal, that Keith did not occupy the land with Polly's permission but, instead, that Polly acquiesced to Keith's assertion of ownership. Polly responds that Suzann's adverse possession claim fails for two reasons: First, there was no evidence that Keith claimed ownership of the land or notified the true owner of his alleged adverse claim, and, second, Suzann failed to prove that Keith's possession was exclusive.

1. The standard of review and analytical framework.

Whether a party has acquired title by adverse possession is a question of fact to be determined by the trier of fact—in this case, the district court. Schaake v. McGrew, 211 Kan. 842, 845, 508 P.2d 930 (1973). We review the district court's factual findings to “ determine if the record shows substantial competent evidence” to support the findings. 211 Kan. at 845, 508 P.2d 930. Substantial competent evidence is such evidence that “provides a substantial basis of fact from which the issues can be reasonably determined.” Frick Farm Properties v. Kansas Dept. of Agriculture, 289 Kan. 690, 709, 216 P.3d 170 (2009) ; see also Boese v. Crane, 182 Kan. 777, 779, 324 P.2d 188 (1958) (explaining that we will not weigh the evidence and are concerned “only with whether it supports the findings made by the trial court”). However, we exercise de novo review over a district court's interpretation of the adverse possession statute, K.S.A. 60–503. See Dillon Real Estate Co. v. City of Topeka, 284 Kan. 662, 665, 163 P.3d 298 (2007).

K.S.A. 60–503 provides: “No action shall be maintained against any person for the recovery of real property who has been in open, exclusive and continuous possession of such real property, either under a claim knowingly adverse or under a belief of ownership, for a period of fifteen (15) years.”

A party claiming title by adverse possession must prove each of the statutory requirements by “clear and positive proof.” Boese, 182 Kan. at 782, 324 P.2d 188. We take this opportunity to approve the Court of Appeals' conclusion in Ruhland, 2013 WL 4046605, at *3, that “clear and positive proof” in the context of adverse possession corresponds to “clear and convincing evidence,” which means evidence that “shows the truth of the facts asserted is highly probable.” See, e.g., Crone v. Nuss, 46 Kan.App.2d 436, 442–43, 263 P.3d 809 (2011), rev. denied 294 Kan. 943 (2012); Wright v. Sourk, 45 Kan.App.2d 860, 866, 258 P.3d 981 (2011), rev. denied 293 Kan. 1114 (2012); accord In re B.D.–Y., 286 Kan. 686, 694–96, 187 P.3d 594 (2008).

A party may not establish adverse possession through inference. Boese, 182 Kan. at 782, 324 P.2d 188 ; see also Stith v. Williams, 227 Kan. 32, 36, 605 P.2d 86 (1980) (“ ‘The law will not allow the property of one person to be taken by another upon slight presumptions or probabilities' ” [quoting 2A C.J.S., Adverse...