Wednesday, October 26, 2011

Dad Always Liked You Best

In re Estates of Allen, 2011 VT 95.

Sometimes the practice of law brings you into situations where the family dynamic at play makes you glad that you are not the psychiatrist who has to untangle all of the personal issues driving the parties.  As attorney, you just have to drive the car and make your clients’ action go forward.  Forget about the father issues, and damn the torpedoes!

So it is in today’s case that we have enough issues to keep Sophocles occupied for another millennium, playing out as backdrop and window dressing to the legal issues in the forefront. 

Father and his son (we, like the SCOV, will call him defendant) had run a slate quarry on their property for eight years from 1964 until 1972.  When the slate ran out, father and defendant took a few years off then ran a gravel pit from 1979 to 1999.  A few years ago when father and defendant were done working the pit, they sought to sell the land.  Just prior to closing the sale, everyone learned that the property had been conveyed to father and defendant’s predecessor in title back in 1920 without its mineral rights.  This was a big problem for father and defendant because the entire value of the land lay in its mineral rights. 

But the law, in its infinite wisdom gave everyone an easy way out.  Father and defendant filed a probate action seeking a declaratory judgment for ownership of the mineral rights.  They argued that because the 1920 owners were dead more than seven years and had not sold or probated the mineral rights, there was an opening for Father and defendant to assert their rights through adverse possession.  The probate court agreed and accepted the adverse possession claims and ruled in their favor.  With this fix in hand, father and defendant were able to quickly close the sale and collect their money.

Enter the brother of defendant (or as we will refer to him from here on out, the plaintiff).  Plaintiff, it appears, had worked with father and defendant from 1964 until 1972 and had done some work with them again from 1985 until 1992.  Moreover, plaintiff had at one point been deeded a portion of the property through a 1995 “corrective deed” that made him a co-tenant with his father and defendant. 

This “corrective deed” was later challenged by father and defendant who claimed that it was fraudulently obtained.  That litigation ended in 2004 with plaintiff giving his family a quit claim deed in exchange for $25,000.

Plaintiff returns after he learns of the mineral right case and the eventual sale of the property.  Plaintiff files a motion with the probate court asking that he be awarded 1/3 of the mineral rights to the property, which the probate court grants without a hearing.  Father and defendant quickly appeal to superior court. 

Here is where things get a little tricky.  When you take an appeal from probate court to superior court, you have to file a statement of questions.  These questions are intended to define the scope of the appeal and give notice to the court and the parties exactly what you are taking issue with from the probate court and what you expect the superior court to focus on during appeal.  Father and defendant filed four questions with the superior court, which were all variations on the theme of “C’mon!  Didn’t we resolve this in 2004 when he quit claimed his interest to us?” 

Plaintiff filed for summary judgment on these issues and won.  The superior court ruled that because the parties had no idea that the mineral rights were not included plaintiff was not barred from seeking his slice of these rights now.  Plaintiff at this point seems to have put his arms up in the universal “it’s good” signal and moved on to seek his portion of the sale.  Defendant (Dad was dead by this time) disagreed and argued that the ruling only gave plaintiff the chance to prove an adverse possession claim—just like father and defendant had.  At a pre-trial status conference, it became clear that the parties saw the impact of the court’s ruling in very different ways.  How different or where the court stood on this difference does not appear to have occurred to plaintiff who went forward with the trial with the intent to put on his evidence of damages.  By the second day, however, the superior court made clear that its ruling only cleared the way for plaintiff to put on evidence of his own adverse possession to show that he had a right to property and by extension the proceeds from its sale.

Deflated at this news, plaintiff scrambled, but a case prepared on the second day of a three day trial is usually never enough to carry the game.  Plaintiff’s claim was denied, and judgment was entered for defendant to keep all of the proceeds.

On appeal, plaintiff raises several arguments, none of them successful.  First, plaintiff argues that the trial court unfairly prevented him from preparing his case and that he should have had an opportunity once he learned about the court’s posture to prepare the case that the court wanted to try.  But the SCOV notes that plaintiff was aware of the dispute over what the summary judgment meant and that he could have sought what is called an “entry of judgment” from the court prior to the hearing that would have clarified the summary judgment order and prevented this trial surprise. 

Plaintiff notes, however, that the ruling took care of all of the defendants’ appeal questions and what the trial court ultimately ruled upon (plaintiff’s need to prove adverse possession) was not even raised by defendants in any of their questions.  The SCOV’s response reflects the all-inclusive nature of superior court.  Basically, the statement of questions in a probate appeal are intended to be guiding not binding, and they do not prevent the trial court from considering other issues because the superior court is a court of general jurisdiction that is intended to resolve any and all issues that come before it.  In other words, there are few if any limits to what the superior court can review once a case comes before it.  While this is frustrating to plaintiff and any attorney that has spent his or her client’s money carefully crafting a statement of questions, it makes sense.  If you need to review an issue, superior court is your one shot.

Plaintiff next appeals his substantive claim, in which he added the time spent on the property between 1964 and 1972 to the time using the gravel pit, 1985–92 to get to the statutory period of 15 years. 

A quick note for anyone who has not slogged it out through first year law school, adverse possession is a legal doctrine that says if you occupy land in an open, notorious, hostile, and continuous manner for 15 years, it is yours.  The idea comes, like most legal concepts, from our British forefathers.  Back, 400 year ago or so, a land’s value was in its use, and society depended upon farmers and landowners to keep their land productive.  Therefore, the law was created to reward those that used and worked the land and to prevent owners who passively watched this labor from swooping in to claim it.  Today, adverse possession is still an important part of property law.  It remains a critical tool, in cases like this, where deeds alone would not resolve ownership or where the history of ownership and use diverge from the paper record.  At the same time, adverse possession is not something the court lightly grants.  Each element requires substantial factual proof before a court can rule in an adverse claimant’s favor.

The problem with plaintiff’s claim is that by cobbling two different eras to reach the required 15 years of use, he cannot meet the element of continuous use.  This element requires the 15 years to be sequential.  The SCOV rules that adversely possessing a property for eight years then walking off for more than a decade is too long between occupations, and it cannot suffice for adverse possession. 

Plaintiff’s last argument is one that the SCOV reject, but carefully.  Plaintiff argues that he owned the property as a co-tenant with his father and brother.  Therefore, he should be entitled to claim adverse possession through their actions.  The SCOV rejects this because plaintiff was on notice early on that his claims on title were disputed and not shared by his brother and father.  The SCOV rules that such a dispute nullifies any claims plaintiff might have to ride this family’s actions to judgment.  At the same time, the SCOV leaves the question of whether future co-tenants can claim their co-owner’s actions as their own for the purposes of adverse possession.  The SCOV seems inclined to agree but stops just short of adopting this ruling. 

For plaintiff, it is too little, too late.  He goes home empty handed, but one presumes that if he is good with a yo-yo, he can always audition for Tommy Smothers’ spot the next time the brothers tour.   

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