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Hammond v. Hammond

Court of Appeals of Oregon

February 27, 2019

Sherman HAMMOND, Plaintiff-Appellant, Cross-Respondent,
v.
Michael Coleman HAMMOND, Defendant-Respondent, Cross-Appellant.

          Argued and submitted September 8, 2017

          Jackson County Circuit Court 14CV14879 Ronald D. Grensky, Judge.

          Eugene V. Anderson argued the cause for appellant-cross-respondent. Also on the briefs was Davis, Hearn, Anderson & T u r ner.

          Robert M. Stone argued the cause and fled the briefs for respondent-cross-appellant.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary:

         Plaintiff appeals from a general judgment denying his claim for ejectment as barred by the statute of limitations, ORS 12.050. Plaintiff argues that the trial court erred in determining when the statute began to run on plaintiff's claim, which was fled in 2014. Plaintiff argues that the 10-year statute of limitations did not begin to run until all of the elements of defendant's adverse possession claim existed, and that defendant did not meet the element of hostility until 2009. Defendant cross-appeals from the same judgment, which denied his counterclaim for adverse possession. Defendant argues that the trial court erred in ruling that defendant failed to prove the boundaries of the land he claimed by clear and convincing evidence. Held: The trial court did not err in denying plaintiff's claim of ejectment. The discovery rule applies to the 10-year statute of limitations for ejectment claims, ORS 12.050. Applying the discovery rule, plaintiff's ejectment claim accrued when defendant asserted, by words and conduct, that he intended to possess the land in his own right. The trial court did not err in finding that defendant so asserted by 2003 and, therefore, that the statute of limitations had run before plaintiff fled his complaint in 2014. Additionally, the trial court did not err in denying defendant's claim for adverse possession [296 Or.App. 322] because defendant failed to prove by clear and convincing evidence the boundaries of the land he claimed.

         [296 Or.App. 323] SHORR, J.

         Plaintiff Sherman Hammond and defendant Michael Hammond are brothers who have been litigating over a 49-acre piece of real property in Jackson County since 2009. Defendant lives on the subject property, known as Jackson County Tax Lot 800, and plaintiff lives on an adjacent lot. In a previous case that was twice before this court, it was determined that plaintiff holds title in fee simple to Tax Lot 800. After the decision in that case became final, plaintiff initiated this litigation by filing a claim for ejectment. Defendant responded with a counterclaim for adverse possession and raised a statute of limitations defense. After a bench trial, the trial court entered a general judgment denying both plaintiff's and defendant's claims. The trial court ruled that defendant had not established the boundaries of the property he claimed to have adversely possessed, but found that the 10-year statute of limitations barred plaintiff's claim for ejectment. Plaintiff appeals from the judgment, assigning error to the trial court's ruling that the statute of limitations barred his claim of ejectment. Defendant cross-appeals from the same judgment, assigning error to the trial court's denial of his claim of adverse possession. For the following reasons, we affirm the trial court's denial of plaintiff's claim for ejectment as barred by the statute of limitations, and we also affirm the trial court's denial of defendant's claim for adverse possession.

         Because plaintiff's ejectment claim is an action at law, Spears v. Dizick, 235 Or.App. 594, 598, 234 P.3d 1037 (2010), with respect to plaintiff's appeal, we review the trial court's factual findings for any competent evidence to support those findings and its legal conclusions for legal error. Mclntyre v. Photinos, 175 Or.App. 478, 482, 28 P.3d 1259 (2001).

         Because defendant's adverse possession claim is in equity, id. at 482-83, we have discretion to review the trial court's findings of fact de novo. ORS l9.415(3)(b). However, de novo review is generally disfavored and is reserved only for "exceptional cases." ORAP 5.40(8)(c). Defendant requests that we exercise our discretion to review de novo because "the trial court's decision does not comport with [296 Or.App. 324] uncontroverted evidence in the record." We disagree and decline to take ale novo review. Instead, we accept the trial court's findings of fact that are supported by the evidence and review for legal error whether those facts establish the elements of the parties' claims. Sea River Properties, LLC v. Parks, 355 Or. 831, 855, 333 P.3d 295 (2014). We state the following facts consistently with that standard.

         The parties' parents originally purchased Tax Lot 800 in 1946 and lived in a home near the southwest corner of the lot. Defendant moved onto Tax Lot 800 around 1973 and has lived in various houses and trailers in the northeast and southwest quadrants of the lot since that time. The parties' other brother, Jerry Hammond, has also lived on Tax Lot 800 in a house on the western side of the lot since 1976. Plaintiff resides on Tax Lot 600-a 43-acre lot immediately south of Tax Lot 800-which he purchased in 1972 and has lived on since 1975.[1]

         In 1985, after the death of the parties' father, the parties' mother deeded Tax Lot 800 to plaintiff. Since 1985, plaintiff has paid the property taxes for Tax Lot 800. Plaintiff also performed maintenance on the property, such as brush clearing and mowing, though it is not clear when and where on the property this maintenance occurred. Sometime in 1996 Or. 1997, defendant moved into his mother's house at his mother's invitation, to provide care for her.

         The parties' mother died on October 8, 2001. A few days later, defendant encountered plaintiff outside of a memorial service for their mother and "threw at him" a copy of their mother's will, stating in effect that he was doing so "pursuant to instructions from their mother." The will purported to divide Tax Lot 800 into "four equal parts," and it gave defendant two of the quarters. The will stated, in relevant part:

"I am dividing my realestate [sic] into four equal parts. Myself controlling one part and each of my three sons controlling one part. [M] aking up a total of four parts. To my son Michael Coleman I leave the fourth of realestate where he now lives (North east quarter) and my quarter where my house sits. (Southwest quarter) I leave my entire house and [296 Or.App. 325] out buildings and entire contents and all my automobile [i]nterests for being my care-giver for all these years......to my son Michael Coleman........"

         The will also purported to give plaintiff the southeast quarter of Tax Lot 800 and "legal control" over the northwest quarter, while Jerry and his wife would receive only "the right to pass to and from where he now lives and the blessing of living there for life." While some other personal property is mentioned in the will-namely, the house and its contents, outbuildings, and automobile interests that were to go to defendant-the vast majority of the nine-page document is intended to divide and devise Tax Lot 800.

         The parties had no further direct communication about the will until 2009. Plaintiff discussed the will with his wife, and plaintiff testified that he became aware that defendant claimed an ownership interest in Tax Lot 800 in 2001, when he read the will. Plaintiff and his attorney engaged in the following colloquy at trial:

"Q. Until the septic incident in 2003/2004, did you have any idea that [defendant] was claiming some kind of ownership interest in the property?
"A. The only kind that I saw was on the will.
"Q. Okay
"A. If that was a claim, I guess.
"Q. And when was the first time that you saw this will that got entered into the probate case?
"A. I think the day after she-my mom died, or the second day."

         Plaintiff's attorney posed the same question to plaintiff's wife, and she gave a similar answer:

"Q. *** [D]id you ever discuss with [plaintiff] the fact that [defendant] was making a claim of ownership ...

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