Howard v. Ball ( 2015 )

PRESENT: Lemons, C.J., Goodwyn, Millette, Mims, Powell, and
Kelsey, JJ., and Lacy, S.J.
FLOYD HOWARD, INDIVIDUALLY AND AS
EXECUTOR OF THE ESTATE OF BERTHA
HOWARD, DECEASED
OPINION BY
v. Record No. 140670 JUSTICE CLEO E. POWELL
April 16, 2015
LESLIE BALL
FROM THE CIRCUIT COURT OF BUCHANAN COUNTY
Patrick R. Johnson, Judge
Floyd Howard (“Floyd”), individually and as the executor of
the estate of Bertha Howard (“Mrs. Howard”), appeals the
judgment of the trial court awarding ownership of certain real
property to Leslie Ball (“Ball”). Specifically, Floyd takes
issue with the trial court’s decision to allow Ball to raise the
affirmative defense of adverse possession at trial without
having previously pled this defense. Floyd also claims that
Ball failed to introduce sufficient evidence to support an
adverse possession claim.
I. BACKGROUND
Floyd and Ball own adjacent parcels of land in Buchanan
County, Virginia. The property at issue in the present case was
held by a common owner until it was partitioned in 1905. Ball’s
predecessors in interest acquired a fee simple interest in a
portion of the property by deed dated December 23, 1905. Mrs.
Howard acquired a fee simple interest in an adjacent portion of
the property by two deeds dated June 1, 1956 and April 16, 1971.
The location of the boundary line between the respective parcels
is the subject of the present case.
In 1957, a survey was completed for Ball’s predecessor in
interest. A fence was built along the property line established
in the 1957 survey. In 1996, a second survey was completed for
Mrs. Howard. The 1996 survey showed the property line
consistent with the location of the fence. Another survey was
completed in 2009, also for Mrs. Howard. The 2009 survey showed
the property line south of the old fence, inside the parcel of
land claimed by Ball.
On October 15, 2009, Mrs. Howard filed an action pursuant
to Code § 8.01-179 seeking to establish the boundary lines of
the property. Specifically, Mrs. Howard sought “judgment
against [Ball] establishing the boundary line between the land
of [Mrs. Howard] and [Ball] as shown in accordance with the
[1996 survey].” On December 9, 2009, Ball filed his pro se
response to Mrs. Howard’s complaint. In his answer, Ball
disputed Mrs. Howard’s claim, relying on the description
contained in the 1905 deed to his predecessor in interest and
the 1957 survey.
At trial, testimony was heard from the land surveyors who
conducted the 1996 and 2009 surveys. Additionally, over Mrs.
Howard’s objection, Ball put on evidence demonstrating that he
and his predecessors in interest had adversely possessed the
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disputed property since the fence was built in 1957 along the
boundary established by the 1957 survey. Ball presented
evidence indicating that the disputed property had been used by
both him and his predecessors in interest for timber, tobacco
and cattle. Additionally, Mrs. Howard testified that, although
she never accepted the fence as the true boundary line between
the properties, she also never had possession of the land on
Ball’s side of the fence.
On February 13, 2013, the trial court issued a letter
opinion holding that the boundary line submitted by Mrs. Howard
is the true boundary line between the two properties. The trial
court went on to explain that the outcome would have been
different if Ball could have relied on his defense of adverse
possession. However, the trial court determined that Ball “did
not have this defense available to him because it had not been
raised or asserted in his original pleadings.” 1 Ball filed a
motion to reconsider arguing that, under this Court’s precedent
in Bradshaw v. Booth, 129 Va. 19, 105 S.E. 555 (1921), he was
not required to raise the defense of adverse possession in an
action to establish boundary lines. After hearing argument on
the matter, the trial court issued a second letter opinion and
1
Indeed, there is nothing in the record indicating that
Ball ever filed a motion seeking to amend his responsive
pleadings to include adverse possession as an affirmative
defense.
3
reversed its original ruling. In its final order, the trial
court ruled that the boundary line submitted by Ball is the true
boundary line between the properties and ordered the recordation
of a plat based on the 1957 survey “to establish the division
line” between the properties.
Floyd 2 appeals.
II. ANALYSIS
On appeal to this Court, Floyd argues that the trial court
erred by allowing Ball to raise the affirmative defense of
adverse possession at trial without having previously pled this
defense. In response, Ball argues that our jurisprudence does
not require him to plead adverse possession as an affirmative
defense to a boundary dispute. Ball relies on our holding in
Bradshaw where we stated that a defendant who raises a general
defense to an ejectment action does not need to raise adverse
possession as an affirmative defense. 129 Va. at 34, 105 S.E.
at 560. In making this argument, Ball points out that this
Court has previously recognized that actions to establish
boundary lines and ejectment actions “are governed by the same
legal principles.” Bulifant v. Slosjarik, 221 Va. 983, 986, 277
S.E.2d 151, 152 (1981).
2
During the pendency of the appeal, Mrs. Howard passed
away. By order dated February 9, 2015, Floyd, individually and
in his capacity as executor of Mrs. Howard’s estate, was
substituted as the appellant in this case.
4
Ball’s argument must necessarily fail, however, because we
have since abolished the use of such general defenses. See Rule
3:8(a) (“A general denial of the entire complaint or plea of the
general issue shall not be permitted”). Indeed, this Court has
repeatedly admonished that, just as a plaintiff must give a
defendant notice of its specific claims, a defendant must give a
plaintiff notice of its specific defenses.
It has long been required that a party raise
specific defenses (just as a plaintiff must
give notice of claims) so that surprise and
prejudice at trial from late revelation of
unanticipated legal theories is avoided.
This has generally led to a requirement that
affirmative defenses must be pled in order
to be relied upon at trial.
Monahan v. Obici Med. Mgmt. Servs., 271 Va. 621, 632, 628 S.E.2d
330, 336 (2006) (citations omitted). Therefore, to the extent
Bradshaw can be interpreted to allow a party to rely on adverse
possession as an affirmative defense without expressly pleading
it in an ejectment action or an action to establish boundary
lines, it is overruled.
That said, however, this Court has recognized certain
exceptions to the general requirement that a party must plead
affirmative defenses. These exceptions include situations
“where the issue addressed by an affirmative defense was not
disclosed in a plaintiff’s pleading, and only became apparent as
the evidence was being received at trial;” where the affirmative
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defense is “addressed by statute,” either expressly requiring
that a particular defense be pled or obviating the need to do
so; or where the affirmative defense does not constitute “an
absolute bar to the plaintiff’s claim.” Monahan, 271 Va. at
632-33, 628 S.E.2d at 336-37.
Here, Ball failed to plead the affirmative defense of
adverse possession. In his singular responsive pleading, Ball
did not mention or indicate that he intended to rely on adverse
possession to dispute Floyd’s claim; rather, he disagreed with
the location of the property boundary based on his
interpretation of a conflicting deed. Further, none of the
recognized exceptions apply to the present case. There was no
evidence received at trial that raised an issue not addressed by
Floyd’s complaint, nor is there a statute that addresses adverse
possession as a defense to a suit to establish boundary lines.
Further, proving that he adversely possessed the property would
establish that Ball owned the disputed property and render the
present action moot, thereby constituting an absolute bar to
Floyd’s claim. 3 Accordingly, the trial court erred in allowing
3
The trial court’s final order awarding de facto ownership
of the disputed property to Ball was particularly problematic in
the present case, because the trial court was never asked to
decide ownership of the disputed property. This Court has
repeatedly admonished that “a court is not permitted to enter a
decree or judgment order based on facts not alleged or on a
right not pleaded and claimed.” Jenkins v. Bay House Assocs.,
L.P., 266 Va. 39, 43, 581 S.E.2d 510, 512 (2003). Indeed, in an
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Ball to rely on the affirmative defense of adverse possession
without having first raised the defense in a responsive
pleading. 4
III. CONCLUSION
For the foregoing reasons, we will reverse the judgment of
the trial court and we will remand the matter for further
proceedings.
Reversed and remanded.
action to establish boundary lines, this Court has previously
stated that a trial court can decide the issue of title and
ownership of a property only when the matter is expressly
“brought into dispute by the pleadings.” Brunswick Land Corp.
v. Perkinson, 146 Va. 695, 704, 132 S.E. 853, 855 (1926). Here,
neither party expressly brought title or ownership of the
property into dispute by the pleadings. Accordingly, the trial
court was not permitted to award such relief to either party.
4
Having determined that the trial court erred in allowing
Ball to rely on the affirmative defense of adverse possession
without raising the issue in a pleading, we need not consider
the issue of whether the evidence was sufficient to support
Ball’s claim of adverse possession.
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