Benny Ray Bailey v. Dennis Jones

                    RENDERED: APRIL 8, 2022; 10:00 A.M.
                         NOT TO BE PUBLISHED

                Commonwealth of Kentucky
                          Court of Appeals

                             NO. 2019-CA-1086-MR

BENNY RAY BAILEY AND
LAVONNA BAILEY                                                     APPELLANTS


                APPEAL FROM KNOTT CIRCUIT COURT
v.           HONORABLE ALISON C. WELLS, SPECIAL JUDGE
                      ACTION NO. 18-CI-00051


DENNIS JONES; ANNA JONES;
ARTHUR JONES, JR.; BILLY GLENN
JONES; ELSIE JONES; HAGEN
JONES; JAMES S. LONG; JEWELL
JONES; RAY PRATT; SARAH
PRATT; AND VIRGINIA LONG                                             APPELLEES


                                    OPINION
                                   AFFIRMING

                                  ** ** ** ** **

BEFORE: JONES, LAMBERT, AND MCNEILL, JUDGES.

MCNEILL, JUDGE: Benny Ray Bailey and Lavonna Bailey (“Baileys”) appeal

from the Knott Circuit Court’s June 20, 2019 findings of fact, conclusions of law,
and judgment finding they have no ownership interest in certain real property

located in Hindman, Kentucky. Finding no error, we affirm.

             This is an action to quiet title to a triangular piece of property

(“disputed property”) located along the shared boundary line of the Baileys and

appellee, Dennis Jones (“Dennis”). Currently located on the property is a metal

pole barn, which is the subject of the dispute. The Baileys purchased their

property (“Lot 4”) in 2015 from Dennis’ mother, Polly Jones. Dennis purchased

his property (“Lot 5”) in 1995 from his uncle, Arthur Jones, Jr. Both properties

derive from a common source.

             In 1938, the property of John A. Jones was divided among his heirs

with Carrie Pigman receiving Lot 4 and Ethel Millard receiving Lot 5. Pigman

deeded Lot 4 to Harold Jones, Dennis’ father, in 1970. Lot 5 was deeded to Arthur

Jones, Sr. in 1969 and then to Arthur Jones, Jr. in 1976. When Arthur Jones, Sr.

transferred Lot 5 to Arthur Jones, Jr., the disputed property, located on Lot 5, was

excepted from the transfer. When Arthur Jones, Sr. passed away, the disputed

property passed to his six children.

             Sometime after the Baileys purchased Lot 4, a conflict arose over who

owned the metal pole barn located on the disputed property. On March 6, 2018,

the Baileys filed a petition in Knott Circuit Court, seeking to be declared the legal




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owners of the disputed property. Dennis filed an answer and counterclaim,1

asserting his interest in the disputed property. On the advice of his attorney,

Dennis obtained a quitclaim deed to the property from five of the six heirs of

Arthur Jones, Sr. Dennis did not obtain the interest of his deceased father, Harold

Jones. As a result, Dennis claimed a five-sixths’ undivided interest in the disputed

property.

               A bench trial was held on March 15, 2019. Benny Ray Bailey

testified that prior to purchasing Lot 4, he performed research to determine the

property’s boundary lines, including visiting the property valuation administrator’s

(“PVA”) office and county clerk’s office. He also spoke with Polly Jones and

some of her neighbors. Based upon his research, Bailey believed the disputed

property was located on Lot 4. Bailey conceded the disputed property is not

contained within Lot 4’s deed description. Bailey further testified that he has had

insurance on the building and paid the power bill since he purchased Lot 4.

               Anna Jones, a family member and neighbor for over 35 years, testified

that the metal pole barn belonged to Harold Jones and that he used and occupied

the building the entire time she has lived there. She further testified that Harold




1
  The Baileys filed an “Amended Complaint” on April 27, 2018 adding additional parties to the
litigation. Jones’ answer and counterclaim were filed in response to this amended complaint.
Jones filed a motion to dismiss for failure to join indispensable parties in response to the original
complaint.

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built the metal pole barn shortly after his pool house burned down sometime

around 1984. However, on cross examination, Anna admitted her belief that

Harold owned the metal pole barn was based upon the fact that she did not think

Harold would build a barn on someone else’s land. She further conceded that she

does not know for sure where the property line is between Lot 4 and Lot 5 or

whether Harold’s use of the disputed area could have been permissive. Anna also

said that she observed Dennis coming and going from the building as he pleased.

             Bobby Jacobs, whose sister married Arthur Jones, Jr. and lived on Lot

5 until around 1994 testified that he believed the metal pole barn was built on the

disputed property before 1994 but was unsure. Polly Jones did not testify.

             Dennis testified that he built the metal pole barn in 1995, shortly after

purchasing Lot 5, to build a boat. His father suggested the location and offered to

help. Dennis stated that he purchased the supplies and did most of the work. He

allowed his father to put his pool water pump in the building when Harold’s pool

house burned down. Dennis further testified that his grandfather, Arthur Jones, Sr.,

agreed to help him build the metal pole barn on the disputed property. Dennis was

aware the disputed property was excepted from the original deed from Arthur

Jones, Sr. to Arthur Jones, Jr. He testified that his deed did not contain similar

language because it was intended that the entire property pass to him, including the

disputed portion.


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             Dennis stated that he worked on the boat for two years before moving

to Florida and Georgia to work for Delta in 1997. He returned on the weekends

and stayed in the metal pole barn, working on the boat. Dennis testified that at

some point his father asked if he could store his vehicles in the metal pole barn and

he agreed, moving his boat outside. Dennis admitted he had never purchased

insurance for the metal pole barn.

             Finally, Kenneth Johnson, a licensed surveyor, who was hired by the

Baileys to perform survey of the various properties, testified that the metal pole

barn is located on Lot 5, on the disputed area that was excepted out of Arthur

Jones, Sr.’s deed to Arthur Jones, Jr. Johnson relied upon the deeds of record and

testified that his survey was performed in accordance with professional standards.

             Following the evidence, the trial court entered findings of fact,

conclusions of law, and a judgment finding that the Baileys had no ownership

interest in the disputed property. The court further found that Dennis had a five-

sixths’ undivided interest in the disputed property, and that the heirs of Harold

Jones held the remaining one-sixth interest. This appeal followed.

             “With respect to property title issues, the appropriate standard of

review is whether or not the trial court was clearly erroneous or abused its

discretion, and 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.


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2002) (citation omitted). “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. (citations omitted).

“The trial court’s conclusions of law are reviewed de novo.” Hoskins v. Beatty,

343 S.W.3d 639, 641 (Ky. App. 2011) (citation omitted).

             The Baileys present three arguments on appeal: (1) the trial court

erred in failing to recognize their status as bona fide purchasers; (2) the court’s

findings of fact are not supported by substantial evidence; and (3) they are entitled

to judgment on their claim of adverse possession.

             Turning to the Baileys’ first argument, the Baileys cannot be bona fide

purchasers because they never purchased the disputed property. See Davidson v.

Jenkins, 113 S.W. 901, 901 (Ky. 1908). “Only a purchaser of legal title to a

property may claim bona fide purchaser status.” 92A C.J.S. Vendor and Purchaser

§ 530 (2021). Here, it is admitted that the disputed property was not contained in

the Baileys’ deed description.

             Further, based upon the survey, the disputed property lies on Lot 5

and thus Harold and Polly Jones, as owners of Lot 4, never owned the disputed

property and thus had no title in the property to convey, despite what the Baileys

believed or may have been told. See 92A C.J.S. Vendor and Purchaser § 530

(footnote omitted) (“The doctrine of bona fide purchaser without notice generally


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does not apply where there is a total absence of title in the vendor, and the good

faith of the purchaser cannot create a title where none exists.”).

             Next, the Baileys argue the trial court’s findings of fact are not

supported by substantial evidence. Specifically, they argue the trial court

discounted PVA records in favor of Dennis’ testimony as to ownership of the metal

pole barn. “[H]ad the trial court accredited the records of the Knott County PVA

as evidencing exclusivity of ownership of the metal pole barn on the disputed

area,” they assert, “the Baileys and their predecessors in interest would have

sufficiently satisfied the period required for either adverse possession, infra, or for

equitable title under the doctrine of laches.” We disagree, both as to the alleged

error and its import.

             At trial, the Baileys introduced evidence of several PVA records

which, they argue, show the metal pole barn was built prior to 1995, when Dennis

testified he built the barn to construct a boat inside. Therefore, the barn could not

have been built by Dennis and must have been constructed by Harold. Based upon

Harold’s construction and ownership of the metal pole barn, the Baileys allege title

via adverse possession.

             First, “insofar as [the Baileys] rel[y] on the property valuation

administrator’s records, those records do not establish title.” Stevens v. Peyton,




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No. 2015-CA-000761-MR, 2017 WL 128600, at *4 (Ky. App. Jan. 13, 2017).2

Second, “[i]t is within the province of the fact-finder to determine the credibility of

witnesses and the weight to be given the evidence.” Uninsured Employers’ Fund

v. Garland, 805 S.W.2d 116, 118 (Ky. 1991) (citation omitted). The question on

appeal is not whether we as an appellate court would have decided the matter

differently, but whether the trial court’s rulings were clearly erroneous or

constituted an abuse of discretion. Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky.

1982).

              Dennis testified that he built the barn in 1995 shortly after purchasing

Lot 5. Anna Jones testified the barn was built in 1984. Bobby Jacobs, another

witness for the Baileys, believed the barn was built before 1994, but he was unsure.

The trial court credited Dennis’ testimony over the conflicting evidence, as was its

right to do. Having reviewed the evidence, we find there was substantial evidence

to support the trial court’s finding.

              Finally, the Baileys argue the trial court erred in rejecting their claim

of adverse possession. We disagree. “[T]o establish title through adverse

possession, a claimant must show possession of disputed property under a claim of

right that is hostile to the title owners interest. Further, the possession must be



2
 Although unpublished, we cite Stevens v. Peyton as persuasive authority pursuant to Kentucky
Rules of Civil Procedure 76.28(4)(c).

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shown to be actual, open and notorious, exclusive, and continuous for a period of

fifteen years.” Phillips, 103 S.W.3d at 708 (citations omitted). “The party

claiming title through adverse possession bears the burden of proving each element

by clear and convincing evidence.” Id. at 709 (citations omitted).

             Based upon the evidence, the trial court found the disputed property

had belonged to Arthur Jones, Sr., and at his death, passed to his heirs. The court

further found that Arthur Jones, Sr. had permitted Harold Jones to use the disputed

property as a garden, and that Dennis had permitted Harold Jones to use the metal

pole barn. Therefore, the court concluded the Baileys could not prove the hostile

requirement of adverse possession. The court further held the Baileys could not

prove the continuous requirement of adverse possession because there was

evidence that Dennis frequently used the metal pole barn, including to work on and

store his boat and other equipment.

             We agree with the trial court that the Baileys failed to prove their

claim of adverse possession by clear and convincing evidence. Based upon the

evidence, the Baileys could not prove their possession of the disputed property was

hostile or exclusive. The Baileys concede that Harold Jones’ use of the disputed

property as a garden was done with the permission of Arthur Jones, Sr.

Permissive use is not hostile and can never ripen into adverse possession. See

Henninger v. Brewster, 357 S.W.3d 920, 927 (Ky. App. 2012) (citations omitted).


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             Further, Anna Jones, the Baileys’ own witness, testified that Dennis

came and went from the metal pole barn on the disputed property at will. Dennis

also testified that he built the metal pole barn to build a boat, and that he worked

on and stored his boat inside the metal pole barn. There was also evidence that

Dennis stored other items inside the barn. “For purposes of a claim of adverse

possession, there is no exclusive possession if the claimant merely shares dominion

over the property with other users.” 3 AM. JUR. 2D Adverse Possession § 65

(2021).

             Based on the foregoing, the judgment of the Knott Circuit Court is

affirmed.



             ALL CONCUR.



 BRIEFS FOR APPELLANT:                     BRIEF FOR APPELLEE:

 Jason V. Reed                             Jeremy R. Morgan
 Covington, Kentucky                       Hazard, Kentucky




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