Flagg v. Faudree

2012 OK CIV APP 4, 269 P.3d 45, 2011 Okla. Civ. App. LEXIS 118, 2011 WL 7095491
CourtCourt of Civil Appeals of Oklahoma
DecidedNovember 22, 2011
DocketNo. 109474
StatusPublished
Cited by3 cases

This text of 2012 OK CIV APP 4 (Flagg v. Faudree) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Flagg v. Faudree, 2012 OK CIV APP 4, 269 P.3d 45, 2011 Okla. Civ. App. LEXIS 118, 2011 WL 7095491 (Okla. Ct. App. 2011).

Opinion

DEBORAH B. BARNES, Presiding Judge.

T1 Plaintiffs/Appellants Brett B. Flagg and Lisa A. Flagg (the Flaggs) appeal the trial court's journal entry of judgment filed on April 20, 2011, granting summary judgment in favor of Defendants/Appellees Howard Thomas Faudree and Dianna Moore, Trustees, or their successors in trust, under the Howard Thomas Faudree Living Trust, dated December 28, 1993 {collectively, Fau-dree). The issues on appeal in this property dispute concern the Flaggs' assertion that they and/or the previous owners of their property, Edward and Peggy Windebank (the Windebanks), "adversely possessed" a portion of Faudree's property for the 15-year statutory prescriptive period and that they have, therefore, become the owners of the adversely possessed property. Based on our review of the facts and applicable law, we reverse the trial court's grant of summary judgment in favor of Faudree and remand this case to the trial court with directions to enter summary judgment in favor of the Flaggs.

FACTS AND PROCEDURAL BACKGROUND

T 2 The Windebanks acquired ownership of a 700 to 800-acre 1 tract of land in Johnston County in 1976.2 In 1999 they sold it to the Flaggs. Prior to the sale, a land survey was completed revealing that title to a portion of the land within the Windebanks' fence line equal to about 29 acres (the 29 acres) was held by Faudree, the owner of an adjoining tract of land. However, prior to the survey, from 1976 until 1999, the Windebanks were unaware that they did not hold title to the 29 acres and that title was held by someone else.3

{3 Believing it to be theirs, the Winde-banks, since 1976, included the 29 acres within their fence and put up "no-trespassing" and "no-hunting" signs along the fence.4 Additionally, they allowed their "[clattle, horses, and guests" the use and enjoyment of the 29 acres.5 Peggy Windebank states in her affidavit that "[slince the origin of my ownership (1976), I have always considered and treated the entire [29 acres] as part of my proper[48]*48ty.6 She states in her affidavit that, since 1976, she has erected, maintained and repaired fencing around, and has exercised exclusive control and possession of, the 29 acres.

[ 4 Peggy Windebank testified in her deposition that no one came forward to assert ownership of the 29 acres,7 and she states in her affidavit that she never saw anyone other than her "invited guests" on the 29 acres.8 Nevertheless, she testified in her deposition that if she had known someone else owned the 29 acres, she would not have tried to take ownership of it.9

15 Brett Flagg testified in his deposition that, prior to the sale, Peggy Windebank assured him that "(she'd always treated [the 29 acres] as hers and so that's why we assumed, when we bought her property, that we were acquiring [the 29 acres}, also." 10 A "Joint Tenancy Warranty Deed," transferring title of the Windebanks' property to the Flaggs was signed by the Windebanks on October 6, 1999, and filed in the Johnston County records on October 15, 1999.11 According to the Flaggs, they "purchased [the] property" on October 6, 1999.12

T 6 In a letter to Faudree dated September 9, 1999, the Flaggs, on behalf of the Winde-banks (who had yet to sell their property to the Flaggs), asserted ownership of the 29 acres by adverse possession and requested that Faudree execute a quit claim deed.13In a letter dated September 27, 1999, Mr. Fau-dree, as Trustee under the Trust, through counsel, responded by denying the Winde-banks' assertion of ownership, stating that he "intends to preserve his interest in the property and will vigorously defend any legal action brought against him, or will initiate appropriate legal actions to clear his title if necessary.14 A few more letters were exchanged in which the parties maintained their positions regarding the 29 acres.

T7 On May 28, 2010, the Flaggs filed a petition asserting they, "and their predecessors in title," had acquired the 29 acres by adverse possession and were seeking an order finding that, by adverse possession, they have become the owners of the 29 acres to the exclusion of Faudree.15Faudree filed an "Objection to the Petition," and each side filed motions for summary judgment.

T8 In its April 20, 2011 journal entry of judgment, the trial court granted summary judgment in favor of Faudree. The trial court found in part "that in order for [the Flaggs] to prevail, they must 'tack' to adverse possession time of [their] predecessor in title [ie., the Windebanks]," but "[that [the Windebanks] clearly state[ ] possession was never adverse. Thus, [the Flaggs] cannot prevail." The trial court found, therefore, that Faudree is the owner of the 29 acres "clear of all liens, claims and encumbrances of [the Flaggs]." From this judgment, the Flaggs appeal.16

STANDARD OF REVIEW

19 The appellate standard of review of a trial court's grant of summary Judgment is de novo. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1058. On review, this Court will examine the pleadings and evidentiary materials submitted by the parties to determine if there is a genuine issue of material fact. Id. Summary judgment is appropriate only when there are no material disputed factual questions and one party is entitled to judgment as a matter of law. Id. at 12, 914 P.2d at 1058. "If it appears to the court that there is no substan[49]*49tial controversy as to the material facts and that one of the parties is entitled to judgment as a matter of law, the court shall render judgment for said party." Rule 18(e), Rules for District Courts of Oklahoma, 12 O.S. Supp.2002, ch. 2, app.

ANALYSIS

%10 Adverse possession claims are disfavored and are not to be made by inference. Francis v. Rogers, 2001 OK 111, ¶ 13, 40 P.3d 481, 486. In questionable cases, presumptions favor the record title holder. Id. The statutory prescriptive period for an adverse possession claim is 15 years. Hernandez v. Reed, 2010 OK CIV APP 65, ¶ 7, O.S.2001 § 93(4).17 It is clear that the Windebanks held the 29 acres for more than 15 years and that the Flaggs are the subsequent owners.

I. The Windebanks' Lack of Awareness of the True Boundary Line

111 The trial court found the Flaggs "cannot prevail" because their predecessor in title, the Windebanks, "clearly state[d] possession was never adverse." "In order to establish adverse possession the claimant must show that possession was hostile, under claim of right or color of title, actual, open, notorious, exelusive, and continuous, for the statutory time." Krosmico v. Pettit, 1998 OK 90, ¶ 15, 968 P.2d 345, 349 (citation omitted). Although the uncontro-verted evidence shows the Windebanks were unaware that another held title to the 29 acres, and that they asserted ownership to the 29 acres simply because they lacked knowledge of the true location of the boundary line, this does not defeat the adverse possession claim.

112 In Krosmico, the Oklahoma Supreme Court stated that a party's "lack of awareness of [another's] record title until [a certain date] does not detract from [its] claim that [it was] asserting ownership prior to that date.

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Bluebook (online)
2012 OK CIV APP 4, 269 P.3d 45, 2011 Okla. Civ. App. LEXIS 118, 2011 WL 7095491, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flagg-v-faudree-oklacivapp-2011.