Robert and Jane Knight v. Ronald J. Jr. and Rebecca Lynn Hubbard

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Robert Knight and Jane Knight, FILED Dorothy Lilly, Roscoe Knight and Edna Knight, September 3, 2013 Roger D. Knight, and/or successor RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS Roger L. Knight, and Hazel Knight Spencer, OF WEST VIRGINIA Plaintiffs Below, Petitioners

vs) No. 12-1159 (Monroe County 09-C-86)

Ronald J. Hubbard Jr. and Rebecca Lynn Hubbard, Defendants Below, Respondents

MEMORANDUM DECISION

Petitioners’ appeal, filed by counsel Christine B. Stump, arises from the Circuit Court of Monroe County, which denied petitioners’ petition to remove cloud on title and their complaint for declaratory judgment, by order entered on August 23, 2012. Respondents, by counsel Phillip B. Ball, filed a response in support of the circuit court’s order. Petitioners argue that the circuit court erred in denying petitioners’ request to eject respondents from the subject property.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate Procedure.

Petitioners Robert Knight, Dorothy Lilly, Roscoe Knight, Roger D. Knight, and Hazel Knight Spencer are siblings and share the subject property as tenants in common. Petitioner Jane Knight is married to Petitioner Robert Knight, Petitioner Edna Knight is married to Petitioner Roscoe Knight, and Petitioner Roger L. Knight is Petitioner Roger D. Knight’s son.1 Petitioners acquired the sixty-five-acre subject property from Petitioner Dorothy Lilly and another sibling, Mary Knight.2 In 1977, petitioners’ parents (or, in Petitioner Roger L. Knight’s case, grandparents), Alfred and Vertie Knight, conveyed one-half undivided interest of the subject property to Dorothy and Dorothy’s husband and the other one-half undivided interest to Mary and Mary’s husband, each couple becoming joint tenants with right of survivorship and not as tenants in common. In 1980, Dorothy, Mary, and their spouses conveyed their interests among

1 Petitioner Roger L. Knight has been named in this case because his father Roger D. Knight conveyed his interest in the subject property to him. 2 We note that not all of the individuals who encompass the shares of the subject property were made a party in this action.

themselves, their six siblings, and their siblings’ spouses as joint tenants with right of survivorship and not as tenants in common, conveying each couple a one-eighth undivided interest.

In 2003, one of Dorothy and Mary’s siblings, William Knight, conveyed his share of the property to respondents, and, as a result, petitioners and respondents became tenants in common. In November of 2009, petitioners initiated the case, contending that respondents’ use of the property was unlawful. Petitioners brought this action in circuit court to seek removal of respondents from the property, and for a declaration that respondents’ use of the property for their home was unlawful and unreasonable. Following a bench trial in September of 2010, the circuit court found that respondents’ use of the property was not unlawful and that petitioners were not entitled to damages. Petitioners’ appeal of this order followed.

Because the decision on appeal arises from a bench trial, we use the following standard of review:

“In reviewing challenges to the findings and conclusions of the circuit court made after a bench trial, a two-pronged deferential standard of review is applied. The final order and the ultimate disposition are reviewed under an abuse of discretion standard, and the circuit court's underlying factual findings are reviewed under a clearly erroneous standard. Questions of law are subject to a de novo review.” Syl. Pt. 1, Public Citizen, Inc. v. First Natl. Bank in Fairmont, 198 W.Va. 329, 480 S.E.2d 538 (1996).

Syl. Pt. 1, McConaha v. Rust, 219 W.Va. 112, 632 S.E.2d 52 (2006). In reviewing the record below, we bear in mind the following: “If the action be by one or more tenants in common, or joint tenants, or coparceners, against their cotenants, the plaintiff shall be bound to prove actual ouster or some other act amounting to a total denial of the plaintiff's right as cotenant.” W.Va. Code § 55-4-15.

In asserting that the circuit court erred when it did not eject respondents from the subject property, petitioners raise three arguments. Petitioners first argue that the circuit court erred when it held that respondents used the property through acceptable actions available to all tenants in common. Conversely, petitioners assert that they proved that respondents were declaring exclusive ownership and occupancy of a specific tract within the property to the exclusion of the co-tenants and without the permission of the co-tenants. Petitioners challenge respondents’ acquisition of the property from William Knight, raising that one co-tenant did not have the right to convey to a third person any specific or distinct portion of the common estate, citing Mauzy v. Nelson, 147 W.Va. 764, 768, 131 S.E.2d 389, 392 (1963). Petitioners assert that although William Knight conveyed his undivided interest to respondents, he was not devising a particular plot from the entire property.

Upon our review of the record, we find no abuse of discretion by the circuit court. The argument under which petitioners sought to eject respondents from the property lacks merit. Although respondents have occupied a specific portion of the property, petitioners have failed to prove that respondents ousted petitioners from the property or that respondents have denied

petitioners total access to the subject property. Of the petitioners who testified, two live in Ohio and very rarely visit the property. A petitioner who lives next to the subject property testified that he has never asked respondents to leave. Another petitioner further testified that his reasons for not visiting the property anymore were based on him not feeling “comfortable going on the property” but did not provide specific deterrents that kept him from visiting or using the land. This same petitioner also testified that, although on one visit there was a backhoe along the roadway, there was still access to the top of the property by other means.

Next, petitioners argue that the circuit court erred in holding that respondents’ actions did not render petitioners’ property interest unmarketable when petitioners proved that the entirety of the property was reduced by respondents’ claim to exclusive ownership of a portion of the property. Petitioners assert that respondents ousted petitioners from the property by placing a barn and home on the property, along with “no trespassing” signs. Accordingly, petitioners argue that respondents have rendered the land unmarketable.

We find no abuse of discretion by the circuit court in this regard. Petitioners argue that they met their burden of proof pursuant to West Virginia Code § 55-4-15, i.e. by proving ouster or total denial of rights as co-tenants. From our review of the record, however, petitioners did not meet this burden. Petitioners provided no evidence of any diminished value of the property, nor did they prove a total denial of their rights as co-tenants or ouster by respondents. As we discussed above, petitioners have failed to prove total denial of their rights as co-tenants. The record also provides no indication that petitioners succeeded in proving that ouster occurred.3 For instance, one of the respondents testified that she posted one of the “no trespassing” signs, but that one of the petitioners posted the others. She further testified that none of the petitioners had ever expressed any desire to share respondents’ barn.

Lastly, petitioners argue that the circuit court erred in upholding the concept of unilateral partition in a tenancy in common. Petitioners reiterate that respondents did not have the authority to carve out a tract from the whole parcel. Petitioners highlight that the common property cannot be partitioned by fragments and that they have an absolute right to enter and occupy every portion of the common estate.

Our review of the record supports our finding that the circuit court committed no abuse of discretion in this matter. The circuit court made findings that respondents never made threats to petitioners, nor did respondents ever prevent petitioners from accessing the subject property. 3 We have described ouster as follows:

An actual ouster of one tenant in common cannot be presumed, except where the possession has become tortious and wrongful by the disloyal acts of the co-tenant, which must be open, continued and notorious, so as to preclude all doubt of the character of his holding or the want of knowledge thereof by his co-tenant. This conduct must amount to a clear, positive and continued disclaimer and disavowal of his co-tenant's title, and an assertion of an adverse right; and a knowledge of this must be brought home to his co-tenant.

Syl. Pt. 1, Boggess v. Meredith, 16 W.Va. 1, 1879 WL 2970 (1879).

Further, none of the parties made prior requests for another party to cease any activity on the property. Evidence admitted at the bench trial supports these findings. Having reviewed the circuit court’s “Final Order,” entered on August 23, 2012, we hereby adopt and incorporate the circuit court’s well-reasoned findings and conclusions as to the assignments of error raised in this appeal. The Clerk is directed to attach a copy of the circuit court’s final order to this memorandum decision.

For the foregoing reasons, we affirm.

Affirmed. ISSUED: September 3, 2013 CONCURRED IN BY:

Chief Justice Brent D. Benjamin Justice Robin Jean Davis Justice Margaret L. Workman Justice Menis E. Ketchum Justice Allen H. Loughry II