McCarvel v. Perhus , 2020 ND 267 ( 2020 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
DECEMBER 17, 2020
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2020 ND 267Kevin McCarvel and Angela McCarvel, Plaintiffs and Appellees
v.
Kelly Perhus and Debra Perhus, Defendants and Appellants
No. 20200051
Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable John Charles Irby, Judge.
AFFIRMED.
Opinion of the Court by VandeWalle, Justice.
Asa K. Burck, Fargo, N.D., for plaintiffs and appellees.
Jonathan T. Garaas, Fargo, N.D., for defendants and appellants.
McCarvel v. Perhus
No. 20200051
VandeWalle, Justice.
[¶1] Following a bench trial, Kelly and Debra Perhus appealed from a district
court judgment quieting title to disputed property in Kevin and Angela
McCarvel. We affirm.
I
[¶2] Kevin and Angela McCarvel brought claims for adverse possession,
boundary by acquiescence, and easement by prescription against Kelly and
Debra Perhus related to a piece of property. The McCarvels also sought
injunctive relief and monetary damages. After a bench trial, the district court
found the McCarvels met their claim for adverse possession by clear and
convincing evidence. The court also found the elements for boundary by
acquiescence were met. Additionally, Debra Perhus made a claim for attorney’s
fees and costs, which the court denied.
[¶3] The property at issue (“the disputed parcel”) is located “in the southeast
quarter of section 33, Township 137 North, Range 50 West, Cass County, North
Dakota.” Kelly Perhus was the record title owner of the property. The court
found the disputed parcel is .41 acres in size.
[¶4] The McCarvels own the property adjacent to the disputed parcel and the
Perhuses’ property. The McCarvels purchased their property in 2003. The
court traced ownership of the McCarvel property back to 1992. The court found
the McCarvels have an unbroken chain of title to their property of more than
twenty years. According to the court, the recorded legal descriptions for both
the McCarvel property and the Perhus property do not overlap and the
properties are adjacent. The Sheyenne River makes up the west and northwest
boundaries of the McCarvel property. Highway 46 borders the McCarvel
property to the north and northeast. East River Road provides the southern
boundary. An earthen dike crosses the north and west boundaries of the
McCarvel property. The dike crosses the disputed parcel. The disputed parcel
is the only piece of other property abutting the McCarvel property.
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[¶5] The disputed parcel is set off from the rest of the Perhus property due to
road construction predating 1992. Highway 46 borders the disputed parcel to
the northeast. East River Road borders the disputed parcel to the southeast.
Near the disputed parcel, Highway 46 crosses the Sheyenne River. Work on
the Highway 46 bridge required pushing the entrance of East River Road to
the east prior to 1992. As a result, East River Road crossed a small section of
the Perhus property, leaving the .41-acre tract between the McCarvel property
and East River Road.
[¶6] The Perhus property has been in the Perhus family since 1875. At trial,
Kelly Perhus testified that he was aware East River Road had moved, but he
also testified that he believed the present location of the road was not the
boundary line. Kelly Perhus claimed that the McCarvels and their
predecessors were allowed to use the disputed parcel through an “unwritten
license.” The court found no evidence that any permission was communicated
to use the disputed parcel. Further, no evidence was presented that the
McCarvels or their predecessors communicated their claim of ownership to the
Perhuses.
[¶7] The McCarvels did not make their claim to the disputed parcel based on
a written instrument. The court found the McCarvels “maintained a dike,
planted trees, mowed the grass and maintained a driveway across the disputed
property.” The court also stated, “From the aerial photographs submitted as
evidence, it is clear that the township road and the earthen dike along the
Highway 46 right-of-way are obvious lines of demarcation of the disputed
property.” Additionally, the court noted an employee of Kelly Perhus drove a
farm implement over the disputed parcel causing ruts and the McCarvels
reported it as a trespass. The court ultimately held the McCarvels met their
claim for adverse possession by clear and convincing evidence. It also found the
McCarvels met all the elements for boundary by acquiescence.
[¶8] The district court also addressed Debra Perhus’s claim for fees, costs,
and attorney’s fees. The McCarvels included Debra Perhus as a defendant in
this claim. The McCarvels claim Debra Perhus was included out of an
abundance of caution because they did not know what interest, if any, she had
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in the property. Debra Perhus was not a record titleholder of the disputed
parcel. The court also found no evidence that Debra claimed any homestead
right in the disputed property or any property making up the parcel owned by
her husband.
II
[¶9] This Court has held,
In an appeal from a bench trial, the district court’s findings
of fact are reviewed under the clearly erroneous standard of
review, and its conclusions of law are fully reviewable. A finding of
fact is clearly erroneous if it is induced by an erroneous view of the
law, if there is no evidence to support it, or if, after reviewing all
of the evidence, this Court is convinced a mistake has been made.
In a bench trial, the district court is the determiner of credibility
issues and we will not second-guess the district court on its
credibility determinations. Findings of the trial court are
presumptively correct.
Larson v. Tonneson, 2019 ND 230, ¶ 10, 933 N.W.2d 84 (internal quotations
and citations omitted). “Whether there has been mutual recognition of a
boundary is question of fact, and will be reviewed on appeal under a clearly
erroneous standard.” Sauter v. Miller, 2018 ND 57, ¶ 10, 907 N.W.2d 370.
III
[¶10] The Perhuses argue the district court’s finding that the McCarvels met
their claim for boundary by acquiescence was clearly erroneous. Boundary by
acquiescence “allows a property owner to acquire neighboring property due to
an honest mistake over the location of the boundary line.” Sauter, 2018 ND 57,
¶ 10 (quoting Brown v. Brodell, 2008 ND 183, ¶ 9, 756 N.W.2d 779).
[¶11] “To establish a new boundary line by the doctrine of acquiescence, it
must be shown by clear and convincing evidence that both parties recognized
the line as a boundary, and not a mere barrier, for at least 20 years prior to the
litigation.” Sauter, 2018 ND 57, ¶ 10 (quoting Brown, 2008 ND 183, ¶ 9). “A
boundary line acquiesced in must be definite, certain and not speculative, and
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open to observation.” Id. “Moreover, acquiescence requires possession up to a
visible line marked clearly by monuments, fences, or the like.” Id. “In the
absence of a conventional agreement, mutual recognition may be inferred from
a party’s conduct or silence.” Id. at ¶ 11 (quoting Brown, at ¶ 9).
[¶12] The required 20-year period can be met by tacking. Sauter, 2018 ND 57,
¶ 11.
[W]here successive adverse occupants hold in privity with each
other under the same claim of title, the time limit for maintaining
an action may be computed by the last occupants from the date the
cause of action accrued against the first adverse user.
Id. (quoting James v. Griffin, 2001 ND 90, ¶ 11, 626 N.W.2d 704). “When
tacking is relied upon to meet the 20-year period, it must result in a single
continuous acquiescent possession.” Id. (quoting James, at ¶ 11). Tacking
requires a boundary by acquiescence by the current occupants “and/or their
predecessors in interest.” Id. at ¶ 12.
[¶13] Here, the district court analyzed the evidence presented at trial for the
McCarvels’ boundary by acquiescence claim. The court recognized East River
Road as the boundary line in question. East River Road meets the requirement
of a clearly marked, definite, certain and not speculative, open to observation
boundary line between the properties.
[¶14] No evidence was presented showing Kelly Perhus communicated
permission to the McCarvels or their predecessors to use the disputed property.
As a result, the court found no conventional agreement existed between the
parties mutually recognizing East River Road as the boundary line. However,
a court may infer mutual recognition of a boundary line from the silence of the
parties, as it appears the parties remained silent here. See Sauter, 2018 ND
57, ¶ 11. The silence of the parties supports finding a mutual recognition of the
East River Road boundary line.
[¶15] The district court examined the possession of the property by the
McCarvels and their predecessors up to East River Road. The court explicitly
found, “The McCarvels and their predecessors in interest made regular use of
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the disputed property.” The court noted the planting of trees on the property
as well as the construction of a dike and driveway. This finding supports the
possession requirement of the doctrine of acquiescence.
[¶16] Evidence introduced at trial also supports a finding that the McCarvels
and their predecessors met the 20-year time period by tacking. The McCarvels
had an unbroken chain of title to their property going back to 1992. The
relocation of East River Road predates 1992. Since that time, the evidence
indicates the McCarvels and their predecessors possessed the property by
planting trees and constructing a dike and a driveway.
[¶17] The evidence presented at trial supports the district court’s finding of
boundary by acquiescence. The evidence indicates the East River Road
boundary line exists, the parties mutually recognized it as the boundary line
through their silence, the McCarvels and their predecessors possessed the
disputed property, and the McCarvels tacked their boundary by acquiescence
through their predecessors in interest. Therefore, the district court’s finding of
boundary by acquiescence was not clearly erroneous, as evidence exists to
support it and the law was correctly applied.
IV
[¶18] Debra Perhus argues she is entitled to costs and attorney’s fees for being
a named party in this action. Kelly Perhus argues he is entitled to costs and
attorney’s fees because the McCarvels filed a lis pendens for an area of property
much larger than the disputed parcel. “Under North Dakota law, parties to a
lawsuit generally pay their own attorney fees, absent statutory or contractual
authority.” Sagebrush Resources, LLC v. Peterson, 2014 ND 3, ¶ 14, 841
N.W.2d 705.
[¶19] Section 28-26-01(2), N.D.C.C., allows for an award of costs, including
attorney’s fees, to a prevailing party on a frivolous claim. “Frivolous claims are
those which have such a complete absence of actual facts or law that a
reasonable person could not have expected that a court would render judgment
in that person’s favor.” Sagebrush Resources, 2014 ND 3, ¶ 15 (citing Deacon’s
Dev., LLP v. Lamb, 2006 ND 172, ¶ 12, 719 N.W.2d 379). The court has
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discretion to determine whether the claim is frivolous and how much to award.
Id. However, if the court finds the claim is frivolous, it must award costs and
attorney’s fees. Id.; N.D.C.C. § 28-26-01(2).
[¶20] Section 28-26-31, N.D.C.C., also places an award of expenses, including
attorney’s fees, within the district court’s discretion for pleadings not made in
good faith. Strand v. Cass Cty., 2008 ND 149, ¶ 14, 753 N.W.2d 872. An award
of expenses under this statute “must be based on evidence that the pleadings
were made without reasonable cause and not in good faith, and are found to be
untrue.” Id.[¶21] Under these two statutes, a district court’s order is reviewed for an abuse
of discretion. Strand, 2008 ND 149, ¶ 18. “A court abuses its discretion if it acts
in an arbitrary, unreasonable, or unconscionable manner, its decision is not
the product of a rational mental process leading to a reasoned decision, or it
misinterprets or misapplies the law.” Id. (quoting Dixon v. McKenzie Cty.
Grazing Association, 2004 ND 40, ¶ 29, 675 N.W.2d 414).
[¶22] In this case, the district court did not award costs or attorney’s fees to
the Perhuses. A court must award attorney’s fees under section 28-26-01(2),
N.D.C.C., only after it finds the claim is frivolous. No finding of frivolity exists
here. Additionally, N.D.C.C. § 28-26-31 requires a court to find the pleadings
were untrue and made without reasonable cause and not in good faith in order
to award expenses. The court did not make this finding for any of the claims or
the lis pendens.
[¶23] The district court did not act in an arbitrary, unreasonable, or
unconscionable manner when it refused to award costs and attorney’s fees to
the Perhuses. The court used its discretion when it declined to find frivolous
claims or pleadings not made in good faith existed. The court analyzed the facts
of the case and correctly applied and followed the law when it made these
determinations. Therefore, the court did not abuse its discretion when it
refused to award costs or attorney’s fees to the Perhuses.
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V
[¶24] We do not address the other arguments raised because they are
unnecessary to this decision. We affirm the district court’s judgment.
[¶25] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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