Hope McSwigan v. G1 Properties, LLC ( 2022 )

RENDERED: NOVEMBER 18, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1287-MR
HOPE MCSWIGAN APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
v. HONORABLE KATHLEEN S. LAPE, JUDGE
ACTION NO. 18-CI-02069
G1 PROPERTIES, LLC APPELLEE
OPINION
AFFIRMING
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BEFORE: TAYLOR, K. THOMPSON, AND L. THOMPSON, JUDGES.
TAYLOR, JUDGE: Hope McSwigan brings this appeal from a September 21,
2021, Findings of Fact, Conclusions of Law, and Judgment entered by the Kenton
Circuit Court determining that G1 Properties, LLC, acquired title by adverse
possession to certain real property located in Kenton County, Kentucky. We
affirm.
At issue in this appeal are two abutting residential properties – Lot
No. 666 and Lot No. 667 of Park Hills Subdivision. Prior to 1987, legal title to
both lots (Lot No. 666 and Lot No. 667) was held by a common grantor. By deed
dated October 28, 1987, the common grantor conveyed Lot No. 666, which had a
residence located thereon, to Douglas A. Gross. Thereafter, by deed dated April 8,
2005, Gross transferred title to Lot No. 666 to Douglas A. Gross and Andrea L.
Gross, Trustee Under The Douglas A. Gross Revocable Trust Agreement (Gross
Trust). And, on the same date, the Gross Trust then conveyed Lot No. 666 to G1
Properties, LLC (G1). Gross is a managing member of G1. It is undisputed that
Lot No. 666 has been used as a rental property since 1987.
As to Lot No. 667, the common grantor constructed a residence
thereupon and subsequently conveyed title to McSwigan’s predecessor in title.
McSwigan’s predecessor in title subsequently transferred title of Lot No. 667 to
Michael McSwigan by deed recorded on December 28, 1993. Michael conveyed
Lot No. 667 to himself and his wife, Hope McSwigan, as tenants by the entirety,
by a deed dated May 26, 1994. Michael subsequently died on January 29, 2000.
McSwigan’s property and G1’s property have a common boundary
line of some 118 feet. Along this common boundary, there is a small disputed
triangular piece of property that at its widest point is five to six feet. Sometime in
2001 or 2002, McSwigan had a survey of her property conducted by James Palma
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(Palma Survey). Multiple surveys by the parties followed. Other than McSwigan
complaining about the location of a G1 tenant’s grill in 2016, there was no real
disagreement concerning the common boundary line between McSwigan and
Gross until 2017.
In 2017, McSwigan engaged the services of a landscaper. The
landscaper was putting mulch out near the disputed area when Gross’s wife
complained that the mulch was being placed on her property. The landscaper
noticed a visible survey pin and reported same to McSwigan.1 McSwigan reported
that she disagreed with Mrs. Gross’s assessment. The landscaper advised
McSwigan to call police. Police arrived and advised the landscaper to stop work
until the dispute could be resolved.
McSwigan subsequently filed the underlying action against G1 in the
Kenton Circuit Court on November 20, 2018. In her complaint, McSwigan sought
to quiet title to the disputed property and asserted claims for intentional trespass,
negligent trespass, and ejectment. G1 filed an answer and counterclaim. Therein,
G1 alleged it had adversely possessed the disputed property.
The matter was heard by the court without a jury pursuant to
Kentucky Rules of Civil Procedure (CR) 52.01. Following the bench trial,
Findings of Fact, Conclusions of Law, and Judgment were entered on September
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The visible survey pin had been set by James Palma when conducting his survey.
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21, 2021 (September 21, 2021, Judgment). Therein, the circuit court ultimately
concluded that G1 had obtained “absolute title in fee simple to [the disputed
property] by adverse possession.” September 21, 2021, Judgment at 7. This
appeal follows.
We begin our analysis by noting that findings of fact made by a circuit
court in a bench trial shall not be set aside unless clearly erroneous. CR 52.01.2
Findings of fact are clearly erroneous if not supported by substantial evidence.
Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). Substantial evidence is
evidence that “has sufficient probative value to induce conviction in the mind of a
reasonable person.” Bishop v. Brock, 610 S.W.3d 347, 350 (Ky. App. 2020). It is
within the sole province of the circuit court to observe and assess the credibility of
witnesses’ testimony. Id.McSwigan contends the circuit court erred by concluding that G1 had
adversely possessed the disputed triangular piece of property along the parties’
common boundary line through adverse possession. More particularly, McSwigan
asserts that G1 did not prove any of the five elements of adverse possession by
clear and convincing evidence.
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It is well established that Kentucky Rules of Civil Procedure 52.01 is applicable to litigation
involving boundary line disputes. Bishop v. Brock, 610 S.W.3d 347, 350 (Ky. App. 2020) (citing
Croley v. Alsip, 602 S.W.2d 418, 419 (Ky. 1980)).
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To sustain a claim under adverse possession, the claimant must prove
by clear and convincing evidence that possession of the property has been: (1)
hostile and under claim of right, (2) actual, (3) exclusive, (4) continuous, and (5)
open and notorious. Appalachian Reg’l Healthcare, Inc. v. Royal Crown Bottling
Co., Inc., 824 S.W.2d 878, 880 (Ky. 1992).
As to the element of hostile possession under claim of right, claimant
is required to demonstrate his intention to control the disputed property so as to
provide notice of the adverse claim to the nonpossessory titleholder. Sweeten v.
Sartin, 256 S.W.2d 524, 526 (Ky. 1953). And, as to the element of actual
possession, claimant must demonstrate that “such use and occupation of the
claimed property as to establish a clear dominion over it.” Moore v. Stills, 307
S.W.3d 71, 78 (Ky. 2010). Regarding the exclusive possession element of adverse
possession, claimant must demonstrate that he had “exclusive occupancy” of the
real property. Bingham v. Brooks, 359 S.W.2d 618, 620 (Ky. 1962). As to the
continuous element of adverse possession, claimant must demonstrate that he
continuously asserted “dominion over the property.” Thompson v. Ratcliff, 245
S.W.2d 592, 593 (Ky. 1952). A claimant’s continuous possession can only be
broken by “(1) an act of the real owner; (2) intrusion of a stranger; or (3)
abandonment by the occupant.” Id. at 593. As for the open and notorious element
of adverse possession, the claimant must “openly evince a purpose to hold
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dominion over the property with such hostility that will give the non-possessory
owner notice of the adverse claim.” Phillips v. Akers, 103 S.W.3d 705, 708 (Ky.
App. 2002) (citation omitted). Furthermore, “[m]ere intentions or verbal
expressions of a claim to property is not sufficient absent physical acts appearing
on the land evidencing a purpose to hold the property hostile to the rights of and
giving notice to the title holder.” Id. at 708 (citations omitted). All five elements
of adverse possession must be maintained for the requisite statutory period of
fifteen years. Bishop, 610 S.W.3d at 350. And, it is claimant’s burden to prove the
elements of adverse possession by clear and convincing evidence. Id. at 350
(citing Stills, 307 S.W.3d at 77-78).
In this case, the disputed area of property was located in a residential
subdivision. There was evidence presented that G1 and/or Gross had mowed the
disputed area since 1987, had performed other routine yard maintenance in the
disputed area, and had removed a damaged tree thereupon. Moreover, there was
testimony that G1’s tenants had engaged in normal leisurely activities upon the
disputed area, such as snow sledding and water sliding. Gross also testified that an
underground drainage pipe from a sump pump in his basement surfaced in the
disputed area and was clearly visible thereupon. Gross stated that the outlet for the
drainage pipe had been located on the disputed area of the property since at least
1987. Gross also testified that the eaves of his front porch extended over the
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disputed area of the property since at least 1987. Considering the above facts and
evidence as a whole, we believe G1 demonstrated by clear and convincing
evidence that its possession of the disputed area was hostile and under claim of
right, actual, exclusive, continuous, and open and notorious for the requisite
fifteen-year period of time. Therefore, we conclude the circuit court did not
commit error by so holding.
McSwigan next contends the circuit court made erroneously findings
of fact. McSwigan claims that the court erroneously found that McSwigan hired
Brent Webster to conduct a survey of the Lot No. 666. McSwigan points out that
G1 actually hired Webster but that Webster’s survey “was entirely in agreement
with [McSwigan’s] position regarding the location of the boundary line.”
McSwigan’s Brief at 13. As a result, McSwigan maintains that the circuit court
failed to properly weigh the import of Webster’s survey.
The circuit court determined that G1 adversely possessed the disputed
property, thereby establishing a new boundary line along and consistent with the
adversely possessed property. And, the location of the boundary line as
established by Webster was not material to G1’s adverse possession claim. Thus,
we believe any error to be merely harmless.
McSwigan also asserts the circuit court erroneously found that
McSwigan had attached a copy of the Palma Survey of Lot No. 667 to her 2001
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variance application with the Park Hills Board of Adjustment. McSwigan
maintains that the Palma Survey was conducted in 2002; therefore, it could not
have been attached to her 2001 variance application. The alleged import being that
Gross could not have relied upon the boundary line as set forth in the Palma
Survey prior to 2002.
During trial, Gross testified that when the Palma Survey was
conducted, he did not object to the pins Palma placed to mark the lots’ common
boundary line because Gross agreed therewith. Gross stated that he had
maintained the disputed property as marked by the Palma Survey since 1987.
Gross asserted that he believed the common boundary line of the lots was where
Palma had identified it and had acted accordingly over the years. While the circuit
court may have made an erroneous finding of fact regarding whether the Palma
Survey was attached to McSwigan’s 2001 variance application, we again must
conclude that such error was harmless.
McSwigan lastly maintains the circuit court erroneously found that the
Palma Survey established the “natural boundary line” between the lots. McSwigan
believes that the boundary line as established by the subdivision plat and deeds is
the proper boundary line between the lots. McSwigan points out that numerous
surveys established that the boundary line as set forth in the Palma Survey is
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inconsistent with the actual boundary line as established by the subdivision plat
and deeds.
The circuit court found that “[t]he natural boundary line, later marked
by the Palma Survey, was observed by the adjoining property owners since 1987.”
September 21, 2021, Judgment at 6. We acknowledge that the circuit court’s use
of the term “natural boundary line” may be somewhat puzzling; nonetheless, it is
clear that the court regarded the boundary line in the Palma Survey as merely
corresponding with the boundary line as established by the conduct of one or both
parties since 1987. So, we do not believe the circuit court’s above finding of fact
was clearly erroneous.
We view any remaining contentions of error as moot or without merit.
In sum, we conclude that the circuit court did not commit reversible
error by concluding that G1 adversely possessed the disputed property.
For the foregoing reasons, the Findings of Fact, Conclusions of Law,
and Judgment of the Kenton Circuit Court is affirmed.
THOMPSON, L., JUDGE, CONCURS.
THOMPSON, K., JUDGE, CONCURS IN RESULT ONLY.
BRIEFS AND ORAL ARGUMENT BRIEF AND ORAL ARGUMENT
FOR APPELLANT: FOR APPELLEE:
Daniel A. Hunt Richard H. Deters
Covington, Kentucky Independence, Kentucky
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