Young Kee Kim v. Douval Corp. , 259 Va. 752 ( 2000 )

Present: Carrico, C.J., Lacy, Hassell, Keenan, Koontz,
Kinser, JJ., and Stephenson, Senior Justice
YOUNG KEE KIM
v. Record No. 991092 OPINION BY JUSTICE CYNTHIA D. KINSER
April 21, 2000
DOUVAL CORPORATION, d/b/a WASH FAIR
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jane Marum Roush, Judge
This appeal arises out of a motion for judgment
seeking ejectment and a counterclaim alleging adverse
possession. Plaintiff Young Kee Kim sought to eject the
defendant Douval Corporation, d/b/a Wash Fair (Douval),
from a 414 square-foot tract of real estate owned by Kim
and located in the Springfield area of Fairfax County. In
its counterclaim, Douval asserted that it had acquired
title to the disputed parcel by virtue of its actual,
hostile, exclusive, visible, and continuous use and
possession of the property for more than 15 years. A jury
returned a verdict in favor of Kim and awarded damages.
However, the trial court granted Douval’s post-trial motion
to set aside the verdict and entered judgment for Douval on
its claim of adverse possession. This appeal followed.
Because we conclude that conflicting inferences can be
drawn from the evidence with regard to the question whether
Douval’s possession of the disputed property was under a
claim of right, and because the jury resolved those
inferences in favor of Kim, we will reverse the judgment of
the circuit court.
FACTS
The property at issue in this appeal is part of Parcel
4-A of a subdivision known as the East Garfield Tract. Kim
purchased Parcel 4-A in 1994. His predecessors-in-
interest, Jung Sik Kim (Jung) and Jung’s wife, had owned
the property since 1983. Kim’s parcel is adjacent to
Parcel 4-E of the East Garfield Tract. David N. and
Loretta R. Bond purchased Parcel 4-E in 1984. Since then,
the Bonds have leased this parcel to Douval.
Douval operates a car wash on Parcel 4-E under the
trade name of Wash Fair. 1 Wash Fair has run the car wash
since 1961 pursuant to leases with the various owners of
Parcel 4-E. Mr. Bond was the manager of Wash Fair from
1962 until 1977, when he and Mrs. Bond acquired all the
shares of stock in Douval.
The parties agree that the disputed property is a
triangular-shaped tract bounded on one side by the property
line between Parcels 4-A and 4-E, and on the other side by
a concrete curb situated on Parcel 4-A. The curb has been
1
Kim operates an auto body repair shop on Parcel 4-A.
2
in place since at least 1962, but the record does not
disclose precisely when, or by whom, it was erected.
According to Mr. Bond, Wash Fair has used the disputed
property since 1962. Initially, it utilized the triangular
strip of Parcel 4-A as a “driveway” for cars entering and
departing the car wash. Wash Fair also erected a sign pole
that abutted the concrete curb and placed asphalt on the
disputed area over to the curb. In 1969, Wash Fair
installed outside lighting at the car wash by placing poles
and concrete bases on the disputed property along the curb.
In order to lay the electrical conduit for those lights,
the asphalt had to be dug up. After the installation of
the lights was completed, Wash Fair paved the disputed area
with asphalt again. During the ensuing years, Wash Fair
asphalted the area on several more occasions. It also
erected a fence at the rear of the disputed property in
1969 and replaced the fence in 1982 or 1983. Finally, Wash
Fair painted the concrete curb at least twice each year and
placed planters in the disputed area in 1990.
Jung testified that Wash Fair installed vacuums on the
disputed property approximately six or seven months after
he purchased Parcel 4-A in 1983. Jung did not give Wash
Fair permission to install the vacuums, nor did Wash Fair
request permission from him to do so. Jung also testified
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that he “didn’t mind” Wash Fair’s using part of his
property because Wash Fair needed it. Jung likewise did
not object when Wash Fair paved the disputed property with
new asphalt because the asphalt benefited his property.
Mr. Bond admitted that Wash Fair used the disputed
property even though he knew it was not part of Parcel 4-E.
However, he asserted that no one instructed Wash Fair not
to use or make improvements on the triangular strip of
Parcel 4-A over to the curb. Mr. Bond further testified
that Wash Fair never received permission from any of the
owners of Parcel 4-A to occupy and use the disputed portion
of that parcel.
However, Kim, through his attorney William C. Thomas,
offered Douval a license agreement to use the disputed
strip of Parcel 4-A in 1995. According to Thomas, Mr. Bond
claimed at that time that he did not know about the
encroachment on Parcel 4-A and asserted that he “had built
entirely on the Wash Fair property.”
Kim established his claim for ejectment by introducing
evidence to prove his chain of title for Parcel 4-A and his
damages resulting from Douval’s actions. Kim also
testified that he asked Douval to remove the vacuums from
the disputed strip of Parcel 4-A and that it refused to do
so.
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ANALYSIS
Pursuant to Code § 8.01-430, a trial court can set
aside the verdict of a jury in a civil action when the
verdict is contrary to the evidence or is without evidence
to support it. However, the trial court’s authority to do
so is limited by the following principles:
If there is a conflict in the testimony on a material
point, or if reasonable [persons] may differ in their
conclusions of fact to be drawn from the evidence, or
if the conclusion is dependent on the weight to be
given the testimony, the trial judge cannot substitute
his conclusion for that of the jury merely because he
would have voted for a different verdict if he had
been on the jury. The weight of a jury’s verdict,
when there is credible evidence upon which it can be
based, is not overborne by the trial judge’s
disapproval.
Lane v. Scott, 220 Va. 578, 581-82, 260 S.E.2d 238, 240
(1979), cert. denied, 446 U.S. 986 (1980) (quoting
Commonwealth v. McNeely, 204 Va. 218, 222, 129 S.E.2d 687,
689-90 (1963)). Accord Henderson v. Gay, 245 Va. 478, 480-
81, 429 S.E.2d 14, 16 (1993). In addition, “when
conflicting inferences have been resolved by a jury and
those necessarily underlying the conclusion reflected in
the verdict are reasonably deducible from the evidence, a
trial judge should not set the verdict aside.” Lane, 220
Va. at 582, 260 S.E.2d at 240.
In reviewing the circuit court’s judgment, we are
mindful of the fact that the trial judge disapproved the
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jury verdict in this case. Thus, that verdict is not
entitled to the same weight as one that a trial judge has
approved. Deskins v. T.H. Nichols Line Contractor, Inc.,
234 Va. 185, 186, 361 S.E.2d 125, 125 (1987) (citing
Cloutier, Adm’r v. Virginia Gas Distrib. Corp., 202 Va.
646, 651, 119 S.E.2d 234, 237 (1961)). Nevertheless, this
Court must consider the evidence in the light most
favorable to Kim, who was the recipient of the jury
verdict. Deskins, 234 Va. at 186, 361 S.E.2d at 125
(citing Neighbors v. Moore, 216 Va. 514, 515, 219 S.E.2d
692, 694 (1975)).
“To establish title to real property by adverse
possession, a claimant must prove actual, hostile,
exclusive, visible, and continuous possession, under a
claim of right, for the statutory period of 15 years.”
Grappo v. Blanks, 241 Va. 58, 61-62, 400 S.E.2d 168, 170-71
(1991) (citing McIntosh v. Chincoteague Volunteer Fire Co.,
220 Va. 553, 556-57, 260 S.E.2d 457, 459-60 (1979); Peck v.
Daniel, 212 Va. 265, 268, 184 S.E.2d 7, 9 (1971); Leake v.
Richardson, 199 Va. 967, 976, 103 S.E.2d 227, 234 (1958);
Code § 8.01-236). The claimant bears the burden of proving
the elements of adverse possession by clear and convincing
evidence. Calhoun v. Woods, 246 Va. 41, 43, 431 S.E.2d
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285, 287 (1993); Matthews v. W.T. Freeman Co., Inc., 191
Va. 385, 395, 60 S.E.2d 909, 914 (1950).
Kim acknowledges that Douval’s possession of the
disputed strip of Parcel 4-A has been open and notorious.
However, he argues that there is a conflict in the evidence
and the reasonable inferences that can be drawn from the
evidence with regard to the question whether Douval’s
possession was “hostile” under a claim of right. In fact,
the circuit court noted in its letter opinion that this
issue was the only genuinely disputed one at trial. 2
It is well-established that a claimant’s possession is
“hostile” if it is under “a claim of right and adverse to
the right of the true owner.” Grappo, 241 Va. at 62, 400
S.E.2d at 171 (citing Virginia Midland R.R. Co. v. Barbour,
97 Va. 118, 123, 33 S.E. 554, 556 (1899)). The phrase
“claim of right,” when used in the context of adverse
possession, refers to the intent of a claimant to use land
as the claimant’s own to the exclusion of all others.
Marion Inv. Co. v. Virginia Lincoln Furniture Corp., 171
Va. 170, 182, 198 S.E. 508, 513 (1938). The existence of a
claim of right does not depend on the claimant having any
2
Kim also argued that there is a conflict in the
evidence with regard to the issues whether Douval’s
possession was “exclusive” and whether the possession was
continuous for the requisite 15-year statutory period.
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actual title or right to the property. Id. However,
“[w]here the original entry on another’s land was by
agreement or permission, possession regardless of its
duration presumptively continues as it began, in the
absence of an explicit disclaimer.” Matthews, 191 Va. at
395, 60 S.E.2d at 914. Accord Alford v. Alford, 236 Va.
194, 197, 372 S.E.2d 389, 390 (1988); Thompson v. Camper,
106 Va. 315, 318, 55 S.E. 674, 675 (1906).
As Kim notes, the record does not indicate the
circumstances under which Wash Fair’s possession of the
disputed strip of Parcel 4-A began. Wash Fair commenced
operating the car wash in 1961. Mr. Bond testified that
Wash Fair was using the disputed property in 1962.
However, we do not know whether, at that time, Wash
Fair’s landlord, who owned Parcel 4-E, obtained permission
from the owner of Parcel 4-A for Wash Fair to utilize the
disputed property. Although Mr. Bond began managing Wash
Fair in 1962 and testified that he had no knowledge of any
agreement between Wash Fair’s landlord and the owner of
Parcel 4-A with regard to Wash Fair’s use of the disputed
property, he and Mrs. Bond did not become Wash Fair’s
landlord until 1984 when they purchased Parcel 4-E. Thus,
he would not have been a party to any such agreement prior
to 1984. Mr. Bond admitted that some of the previous
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owners are deceased and that he therefore could not confer
with them about whether any such agreement existed before
he and Mrs. Bond became Wash Fair’s landlord.
In contrast, we know that Jung, a prior owner of
Parcel 4-A, did not give Wash Fair permission to install
the vacuums on the disputed strip of property in 1983,
shortly after he purchased Parcel 4-A. Also, Kim asked
Douval to remove those vacuums in 1995, but Douval refused
to do so.
Relying on this Court’s decision in Marion Inv. Co.,
Douval argues that its actual occupation, use, and
improvement of the disputed property as if it were in fact
an owner establishes that its possession was under a claim
of right. We agree that a claim of right can be inferred
from unequivocal conduct that is inconsistent with any
other reasonable inference. See Sims v. Capper, 133 Va.
278, 287, 112 S.E. 676, 679 (1922). However, whether the
conduct relied upon is sufficient to establish a claim of
right is generally a question for the jury. Marion Inv.
Co., 171 Va. at 182, 198 S.E. at 513-14.
Upon reviewing the evidence in the light most
favorable to Kim, we conclude that conflicting inferences
can be drawn from the evidence with regard to the questions
whether Wash Fair began its possession and use of the
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disputed property under a claim of right, or with the
permission of the owner of Parcel 4-A; whether, if Wash
Fair’s possession started with permission from the owner of
Parcel 4-A, the possession later changed to one under a
claim of right; and whether any possession by Wash Fair
under a claim of right has continued for the requisite 15-
year statutory period. The jury resolved the conflicting
inferences in favor of Kim, and the inferences “necessarily
underlying the conclusion reflected in the verdict are
reasonably deducible from the evidence.” Lane, 220 Va. at
582, 260 S.E.2d at 240. Thus, we conclude that the circuit
court erred in setting aside the jury verdict.
For these reasons, we will reverse the judgment of the
circuit court, reinstate the jury verdict, and enter final
judgment in favor of Kim. 3
Reversed and final judgment.
3
We do not need to address the remaining assignments
of error.
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