West Virginia Record

Wednesday, January 29, 2020

Supreme Court says property ownership case shouldn't have been granted summary judgment

State Court

By Kyla Asbury | Nov 25, 2019

Wvschero

CHARLESTON – The West Virginia Supreme Court of Appeals found that a lower court granting summary judgment in a case involving property ownership was not appropriate.

Teubert Family Farms appealed an April 19, 2018, order issued by Greenbrier Circuit Court granting summary judgment to Kenneth J. Bragg and Aimee S. Bragg on their adverse possession claim as to 9.21 acres in Greenbrier County, according to the Nov. 19 Supreme Court opinion.

"On appeal, Teubert Family Farms argues that the Circuit Court erred by finding that the Braggs had met every element of adverse possession as a matter of law, despite the questions of fact pertaining to permissive use of the disputed property," Justice Tim Armstead wrote in the majority opinion.

The court found merit to Teubert Family Farm’s arguments and the Supreme Court ruled that the Circuit Court’s final order is reversed and remanded it for further proceedings.

Kenneth Bragg purchased 73 acres of real estate in 1995. At some point, Kenneth Bragg asked John Brown Harris for permission to use his road and to hunt on what is now the Teubert property, which Harris granted, the ruling states.

In 2012, Teubert Family Farms purchased 652.69 acres and a dispute arose regarding the ownership of 9.21 acres of property, which the Braggs believe they own.

"Both parties believed that they owned the disputed property," Armstead wrote in the opinion. "In 2013, the Braggs had their property surveyed, and this survey revealed that the disputed property was not included in their 1995 deed description. In 2014, the Braggs commissioned another survey of the disputed property."

Teubert Family Farms filed a complaint against the Braggs in 2015 and the Circuit Court eventually granted summary judgment to the Braggs in 2018. Teubert Family Farms then appealed.

When Harris gave Kenneth Bragg permission to use his road, he also gave Kenneth Bragg permission to install a combination lock for his use on the access gate to the property and gave him permission to use that portion of the property that "he now asserts to own via adverse possession," the ruling states.

"In granting summary judgment to the Braggs, the Circuit Court found that the Braggs posted, cleared, cultivated, seeded and mowed the disputed property, and also constructed ponds on the disputed property," Armstead wrote. "The Circuit Court found that these additional uses were not permissive and as such, those additional uses satisfied the 'hostility' element of the adverse possession claim. The Circuit Court’s order referred to 'permission,' but it did not differentiate between express and implied permission."

The Circuit Court also found that the Braggs satisfied "every element required of an adverse possession claim," but the Supreme Court disagreed

"We find that the Circuit Court erred by finding no material question of fact was in dispute as to whether the Braggs satisfied every element required of an adverse possession claim," Armstead wrote.

Armstead wrote that there were numerous material factual disputes in the case, including the type and extent of permission granted to the Braggs; the years that the Braggs used the disputed property and the activities they used the property for.

Armstead said the disputes needed to be resolved by a trier of fact.

"Such factual determinations are material to the determination as to whether the Braggs’ use of the disputed property was adverse or hostile, an essential element of a claim of adverse possession," Armstead wrote. "Accordingly, summary judgment was not appropriate in this case."

The Supreme Court reversed the circuit court's granting of summary judgment and remanded the case back to the lower court for further proceedings.

West Virginia Supreme Court of Appeals case number 18-0411

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