DENNIS J. FRANCIS AND GEORGIA FRANCIS v. CITY OF HENDERSON; THORP CREDIT INC. OF INDIANA; AND, FIRST NATIONAL BANK OF HENDERSON
Annotate this Case
Download PDF
RENDERED: July 2, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1996-CA-002440-MR
DENNIS J. FRANCIS AND
GEORGIA FRANCIS
v.
APPELLANTS
APPEAL FROM HENDERSON CIRCUIT COURT
HONORABLE STEPHEN HAYDEN, JUDGE
ACTION NO. 78-CI-000294
CITY OF HENDERSON; THORP
CREDIT INC. OF INDIANA; AND,
FIRST NATIONAL BANK OF HENDERSON
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: DYCHE, EMBERTON, and JOHNSON, JUDGES.
JOHNSON, JUDGE: Dennis Francis, and his wife, Georgia Francis
(the Francises), have appealed from the judgment of the Henderson
Circuit Court entered on May 20, 1981, which quieted title to
property located at 701 Merritt Drive, in the appellee, City of
Henderson, Kentucky (the City).
We reverse and remand.
Many of the facts necessary for a resolution of the
issues presented in this appeal were previously recited by this
Court in an opinion rendered on November 19, 1993, in the appeal
brought by the Francises from the order of the Henderson Circuit
Court resolving identical issues in a companion case concerning
title to several tracts of realty surrounding the property at
issue in this case.1
While the facts and procedural history of
the two cases are well known to the parties, we will,
nevertheless, set forth those facts essential for an
understanding of this appeal.
In 1963, the Francises obtained a deed to the property
on Merritt Avenue, which they caused to be recorded.
This
property is designated as Tract 3 on the City’s plat.
The
Francises subsequently acquired deeds to other lots adjacent to
Tract 3, title to which was at issue in a separate case filed
several years after this action.
In 1974, the Francises obtained
a loan from Safeway Finance Corporation of Evansville, Indiana,
the predecessor of the appellee, Thorp Credit Inc. of Indiana
(Thorp Credit), and pledged the real estate as security for the
loan.
A supplemental mortgage was executed in 1977.
The instant
action was commenced by Thorp Credit, in 1978, to foreclose on
the property secured by its mortgages.
In addition to the
Francises, Thorp Credit named as defendants the First National
Bank of Henderson (First National), which also had a mortgage on
the property, and the City.
In its answer, the City alleged that
it was the owner of the real estate described in the complaint
and specifically asked that “it be adjudicated as the holder of
the fee simple title to the real property described in the
complaint.”
The City also filed a cross-claim against the
1
See Francis v. City of Henderson, case no. 91-CA-1256-MR,
opinion designated “not to be published.” The opinion became
final on December 13, 1993.
-2-
Francises in which it claimed to own the property in fee simple.
It asked that the Francises “be adjudged to have no right to use
or occupy the said real property and that they be ordered to
vacate all of the said real property and deliver possession
thereof to the City of Henderson.”
First National asserted that the “real property
comprise[d] no part of any street, alley or public easement,” and
that the Francises “and their predecessors in title, have openly,
notoriously and adversely used, possessed and claimed ownership
of, [the property at issue] for a period of more than fifteen
(15) years.”
It further asserted several affirmative defenses to
the City’s cross-claim, including “waiver, estoppel, unclean
hands, latches [sic], abandonment, and judicial admission.”
In
their answer to the City’s cross-claim, the Francises alleged
that they were the “fee simple owner[s]” of the property by
adverse possession” and further pled that the City’s cross-claim
was barred by the “Statute of Limitations, estoppel, unclean
hands and waiver.”
On May 8, 1981, the City moved for summary judgment on
all claims.
In opposition to the motion, the Francises argued
that the City was estopped from asserting title as it had given
them permits to build on the property.
They also argued that
“the city had known that various people have claimed and used the
real estate now in ligitation [sic] sence [sic] the year 1790 . .
. up to present date 1981.”
On May 20, 1981, the trial court entered its judgment which
contained its findings of fact and conclusions of law.
-3-
It found
that “[t]he City of Henderson, Kentucky, is situated entirely
within a tract of land granted to Richard Henderson & Company by
an act of The General Assembly of the Commonwealth of Virginia in
the year 1778.”
It concluded that the land on which the
Francises’ house was situated was “the property of the City of
Henderson for the use and benefit of the general public.”
The
trial court held that the Francises could not claim title by
adverse possession as they had not given the notice required by
Kentucky Revised Statutes (KRS) 413.050(1) in order for the
limitations period to have run.
This statute reads as follows:
The limitations mentioned in KRS 413.010
to 413.040 shall not begin to run in respect
to actions by a city for the recovery of any
part of any street, alley or other public
easement or the use thereof in the city,
until the legislative body of the city has
been notified in writing by the party in
possession or about to take possession that
his possession will be adverse to the right
or title of the city. Until such notice is
given, all possession of any part of any
street, alley or public easement in any city
shall be deemed amicable, and the person in
possession the tenant at will of the city.
On June 1, 1981, a timely joint motion to amend the
judgment was filed by First National and Thorp Credit pursuant to
Kentucky Rules of Civil Procedure (CR) 59.
Before an order was
entered disposing of the CR 59 motion, the Francises, who had
proceeded pro se since early in the litigation, filed a notice of
appeal.
On September 29, 1981, this Court ordered that the
appeal be dismissed since there had not been a ruling on the CR
59 motion.
The order provided that the full time to appeal from
the final judgment would “begin to run immediately following the
entry of an order ruling on the CR 59 motion.”
-4-
After the matter
was remanded to the Henderson Circuit Court in 1981, there was no
attempt by First National, or Thorp Credit, to obtain a ruling on
their motion.
In 1989, the Francises moved for a default judgment, or
for an involuntary dismissal of the claims of the City and the
lending institutions on the basis that those parties had taken no
action in furtherance of their claims since 1981.
Neither the
City, First National, or Thorp Credit filed a response to the
motion.
On August 7, 1989, the trial court denied the motion,
however, it still did not address the pending CR 59 motion.
Also, in that year, the Francises filed a cross-claim against the
City seeking $2,000,000 in damages for the City’s alleged bad
faith in its dealings with the Francises.
The record does not
contain any response by the City to these allegations.
In 1992, nearly nine years after this Court dismissed
the appeal as having been taken from a non-final judgment, the
City moved for an order of ejectment.
The trial court ordered
that the motion be held in abeyance until this Court resolved the
appeal in the companion case.
The companion case was commenced
in 1989 by the Commonwealth of Kentucky to collect unpaid ad
valorem taxes.
As in the 1978 action, the City was joined as a
party and it filed a cross-claim against the Francises in which
it sought to quiet title to several lots surrounding the tract at
issue in this litigation.2
On April 1, 1991, the trial court
2
The 1978 action concerned only Tract 3 on the City’s plat.
The 1989 action concerned title to Tracts 4, 5, 11, 12, and 13 of
the City’s plat. The Francises’ residence is located on Tracts 3
and 4.
-5-
entered its judgment in the companion case and held that the
Francises’ deeds to the various tracts could not convey legal
title to the Francises as the City had had legal title to the
property from the time it was developed.
It further rejected the
Francises’ claim to the tracts by adverse possession, for the
same reason it had in this case, that is, that they had not given
notice to commence the running of the limitations period as
provided in KRS 413.050(1).
Finally, the trial court held that
the issue of ownership in the various tracts was governed by the
doctrine of res judicata and that the parties were bound by its
1981 decision in this action.
In this Court’s opinion in the appeal from the 1991
judgment, it was held that because the tracts to which the
Francises claimed were not used as a “street, alley or other
public easement,” the trial court erred as a matter of law in its
application of KRS 413.050(1).
It was also held that the trial
court erred in applying the doctrine of res judicata because the
1981 judgment quieting title to Tract 3 in the City was not
final.
The summary judgment in favor of the City was remanded
for further proceedings, including a trial on the merits of the
Francises’ claim of adverse possession.
The City did not seek
discretionary review of that opinion.
In April 1996, nearly fifteen years after this Court
dismissed the Francises’ appeal in the instant action as having
been filed prematurely, the City moved the trial court to rule on
the CR 59 motion to amend its summary judgment.
In their
response to the motion, the Francises argued that this Court’s
-6-
1993 opinion held that the basis for the trial court’s 1981
judgment was erroneous as a matter of law.
Inexplicably, First
National and Thorp Credit moved to withdraw their pending CR 59
motion to amend the 1981 judgment.
Although three years had
passed since this Court rendered its opinion vacating the trial
court’s judgment containing identical issues in the companion
case, the trial court did not alter its judgment to conform to
the law established therein.
On August 21, 1996, the trial court
granted the motion to withdraw, thereby finally commencing the
running of the time for filing a notice of appeal from the 1981
judgment in favor of the City.
The Francises filed a timely
notice of appeal on August 29, 1996.
Before we address the merits of the appeal, it is
necessary to dispose of the motion of the City to dismiss the
appeal, or alternatively, to strike the Francises’ brief.
The
City argues that the brief filed by the Francises does not
conform to the Civil Rules pertaining to appeals.
Specifically,
the City contends that the Francises “attempted to improperly add
material to the record on appeal,” that they have “attached
exhibits [newspaper articles and pictures of the property] to
their brief which were not a part of the record of the
proceedings in the trial court,” that the brief contains
allegations against the City for which no basis exists in the
record, and that the brief “does not contain a correct Statement
of Points and Authorities . . . nor does it contain a Statement
of the Case. . . [but] consists of 23 pages of mainly
unintelligible and accusatory writing.”
-7-
While the City has accurately listed several
deficiencies in the Francises’ brief, we do not believe that the
grounds given in its motion are sufficient to warrant the
dismissal of the appeal.
See Crossley v. Anheuser-Busch, Inc.,
Ky., 747 S.W.2d 601 (1988).
Further, while the Francises, who
continue to proceed without benefit of legal counsel, have failed
to comply with various provisions of CR 76.12(4), it is our
opinion that no purpose would be served in striking their brief.
Further, the facts, legal issues, and the trial court’s findings
and conclusions contained in the 1981 judgment are identical to
those in the prior appeal between these parties from the 1991
judgment.
We are familiar with the dispute between these parties
and the issues implicated by the appeal, and for this reason, the
brief filed by the Francises has not hindered our review.
Also,
it is apparent that the City is well aware of the legal issues
presented by the appeal and was able to file a brief addressing
those issue despite the “unintelligible” arguments of the
Francises.
This panel has certainly not considered the
extraneous material in the appendix of the brief which is not
contained in the record on appeal. Further, the allegations
against the City and the Francises’ request for monetary damages
and/or sanctions against the City will not be addressed as those
issues are not ripe for our review.
Otherwise, the motion of
the City is denied.
As stated earlier, in the 1981 judgment from which this
appeal has been taken the trial court granted summary judgment on
the City’s cross-claim and quieted title in the City after
-8-
concluding that the Francises could not possibly establish their
claim of adverse possession because of their failure to provide
the notice required by KRS 413.050(1).
Although their arguments
are not articulated with great clarity, the Francises contend
that this Court’s opinion rendered on November 19, 1993, in the
companion case, conclusively determined that KRS 413.050(1) has
no application to the title dispute between themselves and the
City.
We agree and have set forth, in detail, the procedural
facts regarding both actions to demonstrate that this is a
situation calling for the application of the doctrine of res
judicata, the doctrine founded on the principle “that parties
ought not to be permitted to litigate the same issue more than
once.”
Moore v. Gas & Electric Shop, 216 Ky. 530, 287 S.W. 979
(1926).
Although both the 1978 case (the instant case) and the
1989 case, were commenced by other parties, the City filed crossclaims in both cases asserting fee simple ownership to the real
property which the Francises also claimed to own.
In both cases,
the trial court determined that the City had been the legal owner
of the property since its inception.
The only difference in the
two cases is that title to different, but adjoining pieces of
property, was at issue.
Clearly, an opinion of this Court,
involving the same parties, precludes the relitigation of the
issues determined in the prior appeal even though the appeal is
from a different cause of action.
See Penco, Inc. v. Detrex
Chemical Industries, Inc., Ky.App., 672 S.W.2d 948 (1984).
-9-
The City attempts to avoid the application of
collateral estoppel by arguing that “the pleadings in the two
cases were different which has caused inconsistencies in the
application of the law.”
Specifically, the City contends that it
“mischaracteriz[ed]” the nature of its interest in the property
in the companion case as being in fee simple.
The City states
that “no such mischaracterization . . . has occurred in this
case.”
However, as set forth on page 3 infra, the City did
assert a fee simple interest in the tract at issue in the instant
litigation.
And, as pointed out in the 1993 opinion, regardless
of how the City attempts to characterize its interest, the
evidence presented by the City in establishing its claim was the
same in both cases and shows that ownership was vested in the
City when it was originally laid out.
Accordingly, we hold that the trial court erred as a matter
of law in applying KRS 413.050(1) to defeat the Francises’ claim
of title to the property by adverse possession and this matter is
reversed and remanded to allow the Francises to proceed to trial
on that claim.
For the sake of judicial economy, and the
efficient use of the parties’ time and resources, we urge the
parties on remand to seek consolidation of the two pending cases
in the Henderson Circuit Court for a final resolution of the
issue of title to the property.
EMBERTON, JUDGE, CONCURS.
DYCHE, JUDGE, DISSENTS WITHOUT SEPARATE OPINION.
-10-
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE, CITY OF
HENDERSON:
Dennis Francis
Georgia Francis
Pro Se
Henderson, KY
Hon. Joseph E. Ternes, Jr.
Henderson, Ky
BRIEF FOR APPELLEES, THORP
CREDIT AND FIRST NATIONAL:
Hon. Charles Edward Clem
Henderson, KY
-11-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
