SPURLOCK (WILLIAM KENNETH) VS. HORN (ALLEN), ET AL.
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RENDERED: MAY 7, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000630-MR
WILLIAM KENNETH SPURLOCK
v.
APPELLANT
APPEAL FROM LAWRENCE CIRCUIT COURT
HONORABLE JOHN DAVID PRESTON, JUDGE
ACTION NO. 04-CI-00287
ALLEN HORN AND
DOROTHY HORN
APPELLEES
OPINION
REVERSING AND REMANDING
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BEFORE: DIXON AND NICKELL, JUDGES; BUCKINGHAM,1 SENIOR
JUDGE.
BUCKINGHAM, SENIOR JUDGE: William Kenneth Spurlock appeals from a
judgment of the Lawrence Circuit Court following a bench trial wherein the court
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Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
decided that Spurlock had no ownership interest in a tract of real property upon
which his home of 18 years once stood. We reverse and remand.
Spurlock is the son of the late Fred and Dorothy Spurlock. There are
eleven other siblings. Fred and Dorothy owned real property in Lawrence County,
Kentucky, located on Rockcastle Creek. On March 17, 1986, Fred and Dorothy
deeded a portion of the property consisting of one acre to Spurlock. The parcel
deeded to Spurlock had been acquired by Dorothy in 1962.
Spurlock did not review the deed that had been prepared at his father’s
direction, and he subsequently placed it in his safe deposit box. Spurlock later
constructed a home on what he believed was the property described in the deed.
Fred supervised some of the construction work for his son’s home. Spurlock also
mortgaged the property several times and constructed a greenhouse, barn, small
outbuildings, workshop, and a gravel drive near the home. Further, he raised crops
and built furniture on the property.
Fred died in 1990 and left his entire estate to Dorothy. Dorothy died
in 1999, and her estate passed by will equally to her 12 children. In 2001 a civil
action was filed in the circuit court to force the sale of the indivisible real property.
The Horns purchased the property for $30,000 at judicial sale and received a
master commissioner’s deed in February 2003. Spurlock was present at the sale,
bid on the property, but made no mention of a possible mistake in the property
description as read by the commissioner.
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Several weeks later, Horn discovered that Spurlock’s home was
included within the boundaries of the property he had purchased at the judicial
sale. Horn then advised Spurlock that he would either have to move from the
property or pay a monthly rental. Spurlock refused, and Horn filed a forcible
detainer action in the district court, which was dismissed for want of subject matter
jurisdiction. The Spurlock home was totally destroyed by fire in the spring of
2004.
In August 2004, the Horns filed a declaratory judgment action in the
circuit court seeking a judgment declaring them to be the owners of the property
claimed by Spurlock. Surveys of the property revealed that the property was, in
fact, owned by the Horns under the commissioner’s deed. The deed to a one-acre
parcel to Spurlock in 1986 was for a parcel located 300-500 feet from where
Spurlock had built his home and resided with his wife and children for a number of
years. The one-acre tract actually owned by Spurlock was on a hillside that
apparently was not very desirable as a home site.
Spurlock contended that the description in his deed was erroneous due
to a mutual mistake. He asserted that he was therefore entitled to a reformation of
the deed to correct the property description. Alternatively, he alleged that he had
acquired title to over nine acres of the Fred and Dorothy Spurlock property by
adverse possession.
The court conducted a bench trial and thereafter entered a judgment in
favor of the Horns. The court stated that it was unable to find that there was any
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mistake on the part of the grantor in preparing the description in the deed. The
court stated that it was “obvious that there was some sort of survey work done to
prepare the description for the property” and that this was not a situation “where
the Defendant’s parents picked up the wrong deed, and took it to the lawyer for
drafting.” The court thus concluded that Spurlock had built his home and used the
property from the time of his deed in 1986 until his parents died because of their
permissive use rather than due to any mutual mistake in the deed. The court
further concluded that due to Spurlock’s occupancy by permissive use, any adverse
possession could not have begun until 1999 or 2000, which was after Fred and
Dorothy had died. Spurlock’s appeal herein followed.
In Abney v. Nationwide Mut. Ins. Co., 215 S.W.3d 699 (Ky. 2006), the
Kentucky Supreme Court stated as follows:
To vary the terms of a writing on the ground of mistake,
the proof must establish three elements. First, it must
show that the mistake was mutual, not unilateral.
Second, “[t]he mutual mistake must be proven beyond a
reasonable controversy by clear and convincing
evidence.” Third, “it must be shown that the parties had
actually agreed upon terms different from those
expressed in the written instrument.”
Id. at 704. (Citations omitted, emphasis in original).
Spurlock contends that “[i]t flies in the face of logic to believe that
Fred and Dorothy Spurlock conveyed a piece of worthless hillside to their son at
the same time he was preparing to build a house on another piece of their
property.” He asserts that to believe this to be true, one would have to believe that
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he built the home, drilled a well, installed fencing, constructed outbuildings,
obtained fraudulent mortgages, engaged in commercial activities, raised a family,
and entertained guests for 18 years on property that he knew would eventually fall
into heirship of the twelve children of Fred and Dorothy. Further, Spurlock notes
that his building of the home was with the total acquiescence and even
participation of his parents. The Horns respond that it was entirely possible that
Fred and Dorothy had told Spurlock at some point that they would convey the
property to him at a later time but that they failed to do so prior to their deaths.
Further, they contend that the trial court correctly determined that the property
described in Spurlock’s deed was the property intended to be deeded because it had
been surveyed.
Pursuant to Kentucky Rules of Civil Procedure (CR) 52.01, “Findings
of fact shall not be set aside unless clearly erroneous, and due regard shall be given
to the opportunity of the trial court to judge the credibility of the witnesses.”
Further, we understand that mutual mistake must be proven “beyond a reasonable
controversy by clear and convincing evidence.” Abney, 25 S.W.3d at 704
(emphasis in original). “With respect to property title issues, . . . the appellate
court should not substitute its opinion for that of the trial court absent clear error.”
Phillips v. Akers, 103 S.W.3d 705, 709 (Ky. App. 2002). “Furthermore, in an
action tried without a jury, the factual findings of the trial court shall not be set
aside unless they are clearly erroneous, that is not supported by substantial
evidence.” Id.
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Nevertheless, we agree with Spurlock that “it defies logic” to believe
that Spurlock would build a home and use the property as he and his family did for
18 years with the help and acquiescence of his parents when they all knew that
Spurlock did not own this parcel but owned a parcel some 300-500 feet away. We
conclude that the trial court findings in this regard were clearly erroneous and not
supported by substantial evidence. There was clear and convincing evidence of
mutual mistake in the deed.
We also accept Spurlock’s argument that he adversely possessed the
property and that the court erred in finding otherwise. The five elements necessary
to prove adverse possession are: (1) possession must be hostile and under claim of
right; (2) it must be actual; (3) it must be open and notorious; (4) it must be
exclusive; and (5) it must be continuous. Tartar v. Tartar, 280 S.W.2d 150, 152
(Ky. 1955). “Adverse possession, even when held by mistake, may ripen into a
prescriptive right after 15 years of such possession.” Id.
“The party claiming title through adverse possession bears the burden
of proving each element by clear and convincing evidence.” Phillips, 103 S.W.3d
at 709. “Stronger evidence of hostile possession with a clear, positive assertion of
an adverse right is required where there is a family relationship between the parties
than where there is no such relationship.” Id. at 710.
This is not a case where a party is asserting adverse possession of a
small portion of property that he may have raised a garden on or may have mowed
or even fenced in for a numbers of years. This is adverse possession by moving
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onto property, building a house and small outbuildings, and occupying it as a
homeplace for the requisite period of time. The trial court based its rejection of
Spurlock’s adverse possession claim on a finding that Spurlock occupied the
property with the permission and consent of his parents, the owners of the
property.
We conclude that the findings of the trial court in this regard were
clearly erroneous and not supported by substantial evidence. Again, it defies logic
to believe that Spurlock’s parents would deed him an acre of property, immediately
assist him in the building of a home, allow him to develop the property and even
mortgage it eight times, yet know that the property he was occupying was not the
one acre that they had deeded to him but was property that they continued to own.
We conclude that the evidence was clear and convincing that Spurlock’s parents
and his siblings were obviously aware that Spurlock was occupying the property
under a claim of an ownership right. All other elements of adverse possession
were proven by clear and convincing evidence as well.
Finally, there is a remaining issue concerning the amount of property
that Spurlock adversely possessed. He claimed adverse possession of over nine
acres based on boundaries that he said were pointed out to him by his father when
he was deeded the property. However, there was substantial evidence that the
amount possessed was actually only one and one-half to two acres. The issue of
the exact boundaries of the one to two acre tract actually possessed by Spurlock
must be remanded to the trial court to be determined.
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The judgment of the Lawrence Circuit Court is reversed and
remanded for the entry of a judgment reforming the deed in accordance with
boundaries to be determined by the trial court.
DIXON, JUDGE, CONCURS.
NICKELL, JUDGE, DISSENTS AND FILES SEPARATE
OPINION.
NICKELL, JUDGE, DISSENTING. Respectfully, I must dissent. I
believe the majority is erroneously substituting its judgment for that of the trial
court in holding the evidence supported Spurlock’s claim of ownership to the
disputed tract.
The majority correctly indicates that under CR 52.01 the trial court’s
findings of fact should be given deference so long as they are supported by
substantial evidence and absent clear error. However, it then goes on to hold that
“it defies logic” to believe reasonable people could or would act in an unreasonable
way. The majority’s opinion is based as much on speculation as was Spurlock’s
argument before the trial court. Although the majority declares “[t]here was clear
and convincing evidence of mutual mistake in the deed[,]” it fails to elucidate this
point with factual references from the record. Further, the majority has failed to
indicate why it believes the trial court’s decision was unsupported by substantial
evidence. For the following reasons, I believe it was.
The description included in Spurlock’s deed was obviously prepared
following a survey or by one possessing the skills of a trained surveyor. The call
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for the beginning point of the property is specific and could be located nowhere
else but the southwest corner of the parent tract. In fact, the location of the oneacre tract described in Spurlock’s deed was undisputed by either party. The
remaining calls contain accurate bearings and distances. The subject property was
carved out of a larger tract conveyed to Dorothy in 1962, thus eliminating the
possibility of an incorrect deed being taken to an attorney for use in drafting the
current deed. The technical nature of the description indicates this was not a
“homemade” description given to an attorney for drafting. Testimony adduced at
trial indicated several surveying pins were located on the boundary of the subject
tract which appeared to have been placed there by at least two different surveyors
at some time prior to the ripening of the instant controversy. Spurlock himself
testified his father was well-familiar with his property and knew the locations of
the Goble line and Rockcastle Creek. Thus, I respectfully believe it is illogical to
conclude Fred and Dorothy intended to convey any property other than that
referenced in the March 17, 1986, deed to Spurlock, and am convinced there is
sparce evidence supporting Spurlock’s contention exists in the record before us.
The only evidence before the trial court regarding a possible mistake
was the testimony of Spurlock that his parents intended to convey to him the
property where he ultimately constructed his house. He contended he and his
father walked and discussed the proposed boundary lines of the property and that
within those boundaries lay the foundation of an old house which would later serve
as the foundation for Spurlock’s home. Further, Spurlock stated the intention of
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the parties was to convey him a location upon which to build his home, his father
assisted and supervised much of the landscaping and construction of the home, and
that the described land was a hillside unsuitable for construction. Based on these
allegations, he contended reformation was mandated.
However, Spurlock was in the difficult position of proving that
conversations and agreements occurred between himself and his deceased parents
regarding the location of the property to be conveyed. If the conversations
occurred, no one else besides Spurlock testified as to the content of the agreements
reached therein, and no other witnesses testified they were present for any such
conversations. I am unable to conclude Spurlock’s uncorroborated and selfserving testimony is sufficient to overcome the high burden of proof required to
reform a deed. Although building and maintaining a home may be an indication
Spurlock believed he owned the subject property, no plausible evidence in the
record indicates this was other than a unilateral mistake which is insufficient to
support reformation of his deed. As the trial court’s ruling was based on
substantial evidence and was not clearly erroneous nor manifestly against the
weight of the evidence, I believe it should not be disturbed on appeal. CR 52.01;
Reichle v. Reichle, 719 S.W.2d 442 (Ky. 1986); Harry Harris, Inc. v. Quality
Const. Co. of Benton, Ky., Inc., 593 S.W.2d 872 (Ky. App. 1979).
Next, I believe the majority is erroneous in its determination that the
trial court incorrectly found Spurlock’s use of the disputed property was
permissive rather than adverse. Again, I believe the trial court’s decision was
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supported by substantial evidence and the majority’s position is unsupported by the
record.
My review of the record reveals Fred and Dorothy were generous
people, especially toward their children, and would have allowed any of the
children to use a portion of their lands. In fact, one of Spurlock’s brothers testified
he had raised cattle on a portion of the farm, including part of the property claimed
by Spurlock as his own, with his parents’ permission and consent. Spurlock
himself actually testified he used the property with his parents’ permission. There
was no evidence presented that Spurlock excluded or attempted to exclude any of
his siblings or other family members from the subject property. Contrary to the
majority’s conclusion, I find it illogical to conclude Spurlock’s possession of the
land was “adverse” to his parents when they assisted and allowed his development
of the property. Such a conclusion is a non sequitur. Although there was some
conflicting testimony, the trial court is in a better position to determine the
credibility to be given to the testimony of live witnesses. CR 52.01. Thus, I am
again unable to conclude the trial court’s factual finding was clearly erroneous as it
was supported by substantial evidence. Id.; Reichle.
Finally, because I believe Spurlock failed to prove his occupation of
the disputed land was hostile and under a claim of right, I believe the trial court
was correct in its determination that Spurlock did not prove the elements of
adverse possession by clear and convincing evidence. The majority’s conclusion to
the contrary is again unsupported by factual references from the record or legal
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authority. All of the elements of adverse possession must be proven for a party to
gain title to disputed lands. Phillips, 103 S.W.3d at 710. As I believe Spurlock’s
possession of the subject property was permissive, I must conclude he has failed to
affirmatively show he is entitled to the property by adverse possession especially
since “possession by permission cannot ripen into title no matter how long it
continues.” Id. at 708 (citations omitted). I believe the trial court correctly denied
Spurlock’s claim.
Although the majority disagrees with the trial court’s decision, I
believe there was sufficient testimony adduced at trial to support the findings that
there was no mutual mistake in the deed and that Spurlock occupied the property
by permission. Even when, as here, there is conflicting testimony and differences
of opinion between the parties, an appellate court should not substitute its view of
the evidence for that of a trial court. Wells v. Wells, 412 S.W.2d 568, 571 (Ky.
1967). Due regard should be given to the trial court’s opportunity to judge the
credibility of the witnesses and the weight of the evidence presented. CR 52.01.
Therefore, as I believe the evidence adduced was sufficient to support the trial
court’s findings, I believe there was no clear error and I would not disturb the
judgment on appeal. Id.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Nelson T. Sparks
Louisa, Kentucky
Don A. Bailey
Louisa, Kentucky
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