IN THE SUPREME COURT OF FLORIDA PETITIONERS' AMENDED JURISDICTIONAL BRIEF

Transcription

1 IN THE SUPREME COURT OF FLORIDA CHRISTOPHER TREVETT and CYNTHIA TREVETT, Husband and Wife, CASE NO: SC vs. Petitioners, Lower Tribunal Case Numbers: 3D , JOYCE WALKER, Respondent. / PETITIONERS' AMENDED JURISDICTIONAL BRIEF On Review from the District Court of Appeal, Third District, State of Florida CASE NO: 3D JAY ROTHLEIN, ESQ. Attorney for Petitioners Florida Bar No: West Ave., Ste. C-1 Miami Beach, FL Phone (305) Fax (305) jay@jrbeachlaw.com

2 TABLEOFCONTENTS TABLE OF CITATIONS... Page ii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 2 JURISDICTIONAL STATEMENT... 4 ARGUMENT... 5 The Florida Supreme Court has discretionary jurisdiction to review a decision of a District Court of Appeal that expressly and directly conflicts with a decision of the Supreme Court or another District Court of Appeal on the same point of law. Art. V, (3)(b)(3) Fla. Const. (1980); Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv) CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE... 12

3 TABLE OF CITATIONS Tower v. Moskowitz 262 So.2d 276 (Fla.3d DCA 1972)... 7 Page No. Van Meter v Kelsey 91So. 2d 327 (Fla. 1956)... passim Constitutional Provisions and Statutes Art. V, (3)(b)(3) Fla. Const. (1980)... 5 Florida Statutes 95.11(6)... 5 Court Rules Florida Rule of Appellate Procedures 9.030(a)(2)(A)(iv)

4 STATEMENT OF THE CASE AND FACTS Plaintiffs and defendant own adjacent parcels of real property within the City of Key West, which front Caroline Street and have a common boundary running perpendicular to Caroline Street. 1 Prior to plaintiffs or defendant owning their respective properties, a chain link fence was erected running perpendicular to Caroline Street. Following plaintiffs' purchase of their property in 1986, they had three surveys done in conjunction with financing of the property in 1986, 1987 and 1998, each of which shows the chain link fence to be situated nearly four feet onto plaintiffs' property (approximately 54' from the corner of Caroline Street and New Street). Defendant has had no survey done, nor is she aware of any surveys which would dispute the location of the fence vis-a-vis the property line. After acquiring the property in 1986, plaintiffs renovated the dilapidated house located on their property into a bar, planted trees, installed brick pavers, and erected fences on the other borders, doing most of the work on their own on weekends as a result of other full time employment. In December 2001 plaintiffs advised defendant that they wished to relocate the subject fence to the property line and defendant objected. Previously, there had never been any agreement, any 'Pursuant to the Warranty deeds of defendant, Joyce Walker (and her predecessors in interest), defendant's frontage on Caroline Street begins at the corner of Caroline Street and New Street and extends 50'4" to the southwest. Pursuant to the Warranty Deed received and recorded by the plaintiffs in December 1986, their frontage on Caroline Street begins at the point where defendant's property ends - 50'4"southwest of the corner of Caroline Street and New Street.

5 dispute or other communication between the parties, or their predecessors in interest, with regard to the location of the fence in relation to the property line. On December 11, 2007 plaintiffs filed suit for ejectment to recover the strip of property between the existing fence and the property line as described on the parties' deeds. The case proceeded to trial, and the trial court entered a detailed Trial Order finding plaintiffs had legal title for the land in question, but ruled defendant proved their affirmative defense of laches, thereby defeating plaintiffs' claim of ejectment. Plaintiffs appealed the trial court's finding that defendant had established the defense of laches, based upon direct conflict with the Supreme Court's opinion in Van Meter v. Kelsey, 91 So.2d 327 (Fla. 1956). The Third District Court of Appeal issued an opinion on May 23, 2012, a copy of which is attached in the Appendix, affirming the final judgment in favor of Joyce Walker on the basis that Walker established her affirmative defense of laches, thereby defeating the Trevetts' claim of ejectment and attempted to distinguish this Court's opinion in Van Meter. The Trevetts filed a timely Motion for Rehearing which the Third District denied on July 2, The Trevetts timely filed a Notice to Invoke Discretionary Jurisdiction of this court on July 31, SUMMARY OF THE ARGUMENT 2

6 In the decision sought to be reviewed, the Third District applied the doctrine of laches to divest the plaintiffs of ownership of real property, to which they held undisputed legal title, for the first and only time in Florida jurisprudence and in direct conflict with this court's decision in Van Meter v. Kelsey, 91 So.2d 327 (Fla.1956). Van Meter is the only prior Florida case where laches was raised as an affirmative defense in a boundary dispute and the defendant was unsuccessful in doing so. Consequently, the decision of the Third District is the only reported Florida case upholding the defense of laches as a means of divesting an individual of their real property. In Van Meter, the Court cautioned against the use of laches as a means to divest one of the ownership of land and set forth four separate elements, each of which must be proven by clear and positive evidence. Id. at 332. The third element required a "lack of knowledge on the part of the defendant that plaintiff will assert the right on which he bases his suit." The Van Meter court further held that the recording of the deed under which Van Meter was claiming ownership, "is notice to defendants that plaintiff, (Van Meter) was claiming an interest in said lands" thereby negating one of the required elements of laches. Despite the uncontroverted evidence that plaintiffs recorded the deed to their property within days of acquiring same, and the clear holding of Van Meter, that 3

7 such conduct constitutes notice that plaintiff was claiming an interest in said lands, the Third District held otherwise. The fourth element of laches, as stated in Van Meter is "injury or prejudice to the defendant in event relief is accorded to the plaintiff, or in event the suit is held not to be barred." The Third District affirmed the trial court's finding that prejudice, sufficient to satisfy this element, was established by showing that the parents of the defendant had passed away and other potential witnesses had disappeared. Despite Van Meter's requirement that each element of laches be established by clear and positive evidence, there was no evidence whatsoever as to what knowledge Mrs. Walker's parents had with regard to the fence. In fact, the evidence was that the fence had been in place for twelve (12) years prior to her parent's acquisition of the property. Furthermore, the "other potential" witnesses were not identified, nor was there any showing that these alleged witnesses possessed any knowledge, which could have assisted in the defense of the case. JURISDICTIONAL STATEMENT The Florida Supreme Court has discretionary jurisdiction to review a decision of a District Court of Appeal that expressly and directly conflicts with a decision of the Supreme Court or another District Court of Appeal on the same 4

8 point of law. Art. V, (3)(b)(3) Fla. Const. (1980); Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv). ARGUMENT THE DECISION OF THE DISTRICT COURT OF APPEAL IN THIS CASE EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THE SUPREME COURT IN VAN METER v XELSEY, 91 So.2d 327 (Fla. 1956). This Court should exert its discretionary jurisdiction to review the opinion of the Third District Court of Appeal which expressly and directly conflicts with the opinion of the Supreme Court in Van Meter. Unless this court chooses to address this conflict by exerting its discretionary jurisdiction in this matter, property owners will lose valuable property rights. In the decision sought to be reviewed, the Third District applied the doctrine of laches to divest the plaintiffs of ownership of real property, to which they held undisputed legal title, for the first and only time in Florida jurisprudence and in direct conflict with this court's decision in Van Meter v. Kelsey, 91 So.2d 327 (Fla. 1956). Common law laches had never been applied to a boundary dispute in any prior reported Florida case, other than Van Meter, where the defendant was unsuccessful in establishing this affirmative defense.2 Consequently, the decision of the Third District is the only reported case in all of Florida jurisprudence 2 Statutory Laches, F.S (6) is clearly inapplicable as it is a subsection of F.S entitled Limitations other than for the recovery of real property. 5

9 upholding the defense of laches as a means of divesting an individual of their real property. In Van Meter, the Court cautioned: Laches is an affirmative defense. As such, the burden of proving it is on those who assert it, and it must be proved by very clear and positive evidence. This is particularly true where the application of the doctrine is to divest one of the ownership of land. We will not extend the doctrine too readily where it has this effect. Id. at 332. The Van Meter Court set forth the following necessary elements to establish the affirmative defense of laches: (1) "there must be conduct on the part of the defendant, or on the part of one under whom he claims, giving rise to the situation of which complaint is made"; (2) "the plaintiff, having had knowledge or notice of the defendants' conduct, and having been afforded the opportunity to institute suit, is guilty of not asserting his rights by suit"; (3) "lack of knowledge on the part of the defendant that plaintiff will assert the right on which he bases his suit"; and (4) "injury or prejudice to the defendant in event relief is accorded to the plaintiff, or in event the suit is held not to be barred." Id. at Throughout the proceedings, the Trevetts did not contest the first two elements of laches, conceding that they were aware of the location of the fence on their property upon receipt of the first survey in 1986, and that twenty-one years passed before filing suit to have the fence removed. However, "the rule is well 6

10 settled that the bar of laches will not be raised solely because of the passage of time." Tower v. Moskowitz, 262 So.2d 276 (Fla.3d DCA 1972). Passage of time before filing suit is only a part of the test for laches, as set forth in Van Meter, and is contained within element number two, which the plaintiffs concede. Moreover, despite the clear directive that all four elements must be proven by very clear and positive evidence, as well as the admonition against extending the doctrine where the divestment of ownership of land is at stake, the Third District improperly allowed the twenty-one year delay to taint its analysis of the third and fourth elements. The third element requires the party claiming laches to prove that they lack the knowledge that "plaintiff will assert the right upon which he bases his suit". It is not a lack of knowledge that plaintiff will file suit; it is a lack of knowledge that he will assert the right upon which the suit is based. On this basis, the Van Meter court held that the recording of the deed under which Van Meter was claiming ownership to the disputed property, "is notice to defendants that plaintiff (Van Meter) was claiming an interest in said lands." Van Meter at 331. This established a simple, bright line rule that in the absence of some other legal theory (such as adverse possession or acquiescence) a landowner, who records the deed to his property, gives the required notice to demonstrate he is asserting his right of

11 ownership to the lands described in his deed, and thereby prevent the loss of the property on a claim of laches. Despite the uncontroverted evidence that Plaintiffs recorded the deed to their property within days of acquiring same, and the clear holding of Van Meter, that such conduct constitutes notice that plaintiff was claiming an interest in said lands, the Third District held otherwise. The language and emphasis contained within the Third District's opinion, clearly shows their failure to appreciate the holding of Van Meter. Their statement that "[t]he Trevetts argue that the recording of their deed put Ms. Walker on notice that they will claim an interest in the property" (emphasis contained in Third District's opinion) misses the point of the Van Meter opinion: that recordation of the deed is not notice that the owner will claim an interest in the property described by the deed, but rather it is notice that they are claiming an interest in the land, thereby defeating the third element of laches. The defendant also failed to establish the fourth element of laches, "injury or prejudice to the defendant in event relief is accorded to the plaintiff, or in event the suit is held not to be barred," by "very clear and positive proof." The Third District's relaxation of this standard ignores Van Meter's directive not to extend the doctrine of laches too readily, when it has the effect of divesting an individual of the ownership of land. 8

12 Although the Third District did not find any injury to the defendant, it affirmed the trial court's finding that prejudice was established by showing that the defendant's...parents passed away and other potential witnesses having knowledge about the circumstances surrounding the construction and positioning of the chain link fence have disappeared during the 21 year period of delay brought about by [the Trevetts'] failure to act satisfies the fourth element. (Appendix at p.11) A similar argument was advanced and rejected in Van Meter. Defendant Kelsey claimed he was prejudiced by the death of his father; however, the court did not blindly accept the death of the father as establishing prejudice. Instead, the Van Meter court conducted an analysis of how the unavailability of Kelsey's father might prejudice the defense of the case. Van Meter at The Third District conducted no such analysis or inquiry in the instant case, which would have revealed not only that there was no evidence presented as to what knowledge Mrs. Walker's parents had with regard to the fence, but also that the fence was in place for twelve (12) years prior to her parent's acquisition of the property in Furthermore, the "other potential witnesses," were not identified, nor was there any showing that these alleged witnesses possessed any knowledge, which could have assisted in the defense of the case. Additionally, in its discussion of the fourth element, the Third DCA's reference to the 21 year delay in filing suit improperly 9

13 collapses the four distinct elements of laches set forth in Van Meter into a single unitary determination based upon the mere passage of time. Defendant has not shown, by clear and positive proof, any damage or prejudice she will suffer if plaintiffs' claim is not barred. To deprive the Trevetts of ownership of land they paid for, recorded the deed to and paid taxes on for over twenty years, without requiring Mrs. Walker to meet the burden set forth in Van Meter improperly extends the doctrine of laches contrary to the directives of Van Meter. The overall tone of the Van Meter decision, the only Florida decision applying laches to a real property boundary dispute is clear: the court did not favor such an application of the doctrine and set forth a rigorous test to protect property owners, which was not followed by the Third District. The spirit of Van Meter is best encapsulated by the Court's statement, "We say there is no inequity in denying to defendants that which is not theirs." Van Meter at 332. CONCLUSION This Court has discretionary jurisdiction to review the decision of the Third District Court of Appeal, and the court should exercise that jurisdiction to consider the merits of the Petitioners' argument. 10

14 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above and foregoing has been furnished by U.S. postal service mail this f day of September, 2012 to: Edwin A. Scales, Esq. 201 Front St., Ste. 333 Key West, FL (305) (305) escales@edscalespa.com Iroberman@edscalespa.com Attorney for Respondent MARK N. MILLER, ESQ. Co-counsel for Respondent Kristie Hatcher-Bolin, Esq. GRAY ROBINSON, P.A. One Lake Morton Drive P.O. Box 3 Lakeland, FL (863) (863) Fax Mark.Miller@gray-robinson.com Karen.pollard@gray-robinson.com ROTHLEIN, ESQ. orney for Petitioners F N: West Ave., Ste. C-1 Miami Beach, FFL (305) (305) Primary: jay@jrbeachlaw.com Secondary: gloria@jrbeachlaw.com 11

15 CERTIFICATE OF COMPLIANCE The undersigned hereby certifies that the foregoing brief was prepared in accordance with Rule and has been computer generated in Times New Roman 14 point. JA ROTHLEIN, ESQ. Att rney for Petitioners : West Ave., Ste. C-1 Miami Beach, FL (305) (305) jay@jrbeachlaw.com 12

16 EIJírb Bistritt Court of Mppeal State of Florida, January Term, A.D Opinion filed May 23, Not final until disposition oftimely filed motion for rehearing. No. 3D Lower Tribunal No CA-1657-K Christopher Trevett and Cynthia Trevett, Husband and Wife, Appellants/Cross-Appellees, vs. Joyce Walker, Appellee/Cross-Appellant. An Appeal from the Circuit Court for Monroe County, Mark H. Jones, Judge. Jay Rothlein, for appellants/cross-appellees. GrayRobinson, P.A., and Edwin A. Scales, III (KeyWest), Mark N. Miller (Lakeland), and Kristie Hatcher-Bolin (Lakeland), for appellee/cross-appellant. Before SHEPHERD, ROTHENBERG and EMAS, JJ. ROTHENBERG, J. The plaintiffs, Christopher Trevett and Cynthia Trevett ("the Trevetts"),

17 appeal from a fmal judgment denying their claim for ejectment based on the trial court's finding that their claim is barred by the affirmative defense of laches. We affirm. The defendant, Joyce Walker ("Ms. Walker"), appeals from the portion of the final judgment denying her claim to quiet title based on the trial court's finding that she failed to establish boundary by acquiescence. As we are affirming the trial court's denial of the Trevetts' ejectment claim, we do not reach the issue raised by Ms. Walker on cross-appeal. The Trevetts and Ms. Walker own adjacent parcels of real property in Key West. Their properties are separated by a fence and brick wall (collectively, "the fence") that has existed in the same location since the late 1930s, but encroaches several feet onto the Trevetts' property. In December 2007, the Trevetts filed a claim for ejectment, seeking to obtain possession of the strip of land between the fence and the legal boundary line of their property. In response, Ms. Walker filed an answer and raised several affirmative defenses, including laches and boundary by acquiescence. Ms. Walker also filed a counterclaim, seeking to quiet title based, in part, on boundary by acquiescence. The trial court conducted an evidentiary hearing on the parties' claims. As demonstrated by the evidence, the relevant collective history of the properties is as follows. Ms. Walker's property has been in her family for over seventy years. Prior to 1938, the fence was erected between the two properties, and since 1938, 2

18 Ms. Walker's property has been used as a commercial parking lot. Prior to the Trevetts purchasing their property on December 17, 1986, Ms. Walker's property was owned by her parents, Arthur and Gladys Mulberger. Two days after the Trevetts purchased their property, they obtained a survey prepared by Joe M. Trice, which showed that the fence encroached onto the Trevetts' property by approximately four feet ("Trice survey"). Thereafter, on December 23, 1986, the Trevetts recorded their deed, with no change in the legal description from the deed filed by their predecessor-in-interest. Although the Trevetts were aware of the encroachment, they installed a planter and planted approximately twenty palm trees running along their side of the fence, and installed brick pavers and underground lighting abutting the palm trees. Sometime later, after a storm knocked down a part of the fence, the Trevetts put the fence back up in the same location. After Mr. Mulberger's death in March 1987, the property was placed into a trust managed by Ms. Walker and Mrs. Mulberger ("Trust"). Thereafter, in November 1987, the Trevetts hired Frederick Hildebrandt to resurvey their property ("Hildebrandt survey"). This survey indicated the fence encroached 3.7 feet onto the Trevetts' property, and depicted the installation of the planter and pavers. In 1995, the commercial parking lot, which was then owned by the Trust, was resurfaced up to the fence line without any objection from the Trevetts. 3

19 Following Mrs. Mulberger's death in April of 2001, the Trust deeded the property to Ms. Walker on November 27, Ms. Walker never had her property surveyed, and she was unaware of any surveys prepared by any predecessor-in-interest. On December 4, 2001, just a few days after the Trust deeded the property to Ms. Walker, the Trevetts, through counsel, sent a letter to Ms. Walker, informing her of the Trice survey, and indicating they wanted to move the fence to the property line. Prior to this letter, Ms. Walker and the Trevetts did not have any dispute, agreement, or other communication regarding the boundary line. After the Trevetts sent the letter to Ms. Walker, the Trevetts took no further action regarding the boundary line or location of the fence until they filed their ejectment claim on December 11, Further, there is no evidence of any dispute or agreement between the parties' predecessors-in-interest regarding the boundary line or fence. Following the bench trial, the trial court entered an amended final judgment, denying the Trevetts' claim for ejectment, finding Ms. Walker established the affirmative defense of laches by clear and positive evidence, but failed to establish boundary by acquiescence. The trial court also denied Ms. Walker's counterclaim to quiet title, finding that she did not establish boundary by acquiescence. The trial court concluded that the current location of the fence, as set forth in the Hildebrandt survey, delineates the boundary line between the parties' properties. 4

20 The Trevetts' appeal and Ms. Walker's cross-appeal followed. On appeal, the Trevetts contend the trial court erred by finding that Ms. Walker established the affirmative defense of laches by clear and positive evidence. We disagree, and therefore, affirm the trial court's denial of the Trevetts' ejectment claim, and the trial court's finding that the location of the fence is the boundary line between the parties' properties. In Van Meter v. Kelsey, 91 So. 2d 327, (Fla. 1956), the Florida Supreme Court set forth the following necessary elements to establish the affirmative defense of laches: (1) "there must be conduct on the part of the defendant, or on the part of one under whom he claims, giving rise to the situation of which complaint is made"; (2) "the plaintiff, having had knowledge or notice of the defendants' conduct, and having been afforded the opportunity to institute suit, is guilty of not asserting his rights by suit"; (3) "lack of knowledge on the part of the defendant that plaintiffwill assert the right on which he bases his suit"; and (4) "injury or prejudice to the defendant in event relief is accorded to the plaintiff, or in event the suit is held not to be barred." As the Trevetts do not dispute that Ms. Walker established the first two elements, we will limit our analysis to the third and fourth elements. As to the third element, the Trevetts contend the trial court erred by finding that Ms. Walker established by clear and positive evidence that she lacked 5

21 knowledge that the Trevetts would assert their right to possession of the disputed strip of land. Relying on Van Meter, the Trevetts argue that, by recording their deed on December 23, 1986, Ms. Walker had record notice of the Trevetts' claim to ownership and ultimate possession of the entire property described in their deed, including the disputed strip of land. Under the circumstances of this case, we disagree. In July 1954, P.W. Van Meter ("Van Meter") instituted an action against Edward L. Kelsey and his wife ("the defendants") to quiet title to a strip of land approximately 413 feet wide. The evidence showed that in 1913, Van Meter entered onto the NE 1/4 of Section 17, and Edward Kelsey's father, Eugene Kelsey ("Kelsey"), entered onto the SE 1/4 of Section 17, for the purpose of homesteading the lands. Van Meter's and Kelsey's entries were made pursuant to the survey of 1870, and at that time, the lands were public domain. Two years later, in 1915, Van Meter constructed a fence running along the southern boundary of his property and the north side of Kelsey's property. Shortly thereafter, Kelsey constructed a fence running along the western boundary of his property, and with Van Meter's consent, attached his fence to the southwest corner of Van Meter's fence. In 1917, the United States resurveyed Section 17, which resulted in moving the boundary of Section 17 east and south, and in the loss of acreage to both the SE 1/4 and NE 1/4 of Section 17. After the boundaries were changed, Van Meter did 6

22 not move the fence, and instead, allowed Kelsey to use the lands. Thereafter, in order to compensate Van Meter and Kelsey for their loss of acreage, they received patents from the United States-Van Meter in 1923 and 1926, and Kelsey in 1923-for additional lands not included in the lands they originally entered in Van Meter established title to the lands by introducing the patents issued by the United States and a quitclaim deed recorded in 1952 from Sippie M. Moore, who had obtained a tax deed in 1941 from the State of Florida as to that land. The defendants claimed title to the property pursuant to a quitclaim deed recorded in 1954 from Kelsey's heirs to the defendants, following Kelsey's death in 1951, which included the disputed land. The defendants argued that prior to his death, Kelsey had obtained title to the disputed strip of land by adverse possession. The defendants further argued Van Meter is barred from obtaining the relief he sought based on laches. The chancellor found that the defendants did not establish title based on adverse possession by Kelsey. However, the chancellor granted relief in favor of the defendants, finding "(1) that the fence constructed by [Van Meter] in 1915 had been accepted as the true boundary between the lands by acquiescence of the parties and (2) that [Van Meter] was barred by laches." Id. at 330. Therefore, the chancellor found the defendants were the owners of the disputed lands. 7

23 The Florida Supreme Court agreed with the chancellor's fmding that the defendants failed to establish title by adverse possession. The Court, however, disagreed with the chancellor's finding as to boundary by acquiescence, stating: Id. [H]ere, there was a question of correctness of the survey. In the case before us Kelsey signed a petition to the United States offering to cooperate in the resurveying of Section 17 and indicating that there was question about the boundary lines under the 1870 survey. [Van Meter] testified that it was agreed between him and Kelsey that if the new survey moved his line south Kelsey would move south also. There is nothing in the record to indicate that the fence in question was agreed upon as the boundary between the two properties. Any recognition that it was such a boundary appears to have been conditioned on the results of the survey of 1917, made not before, but after the fence was erected. The only evidence to show that the fence was regarded as the boundary between the properties was the existence of the fence itself. This is not sufficient. Next, the Florida Supreme Court addressed whether the chancellor erred by fmding the relief sought by Van Meter was barred by the affirmative defense of laches. In rejecting the chancellor's finding, the Court concluded that the defendants failed to establish any of the elements of laches, and, therefore, ordered that judgment be entered in favor of Van Meter. Specifically, as to the third element-lack of knowledge on the part of the defendants that Van Meter will assert the right on which he bases his suit-the Florida Supreme Court concluded: It is true that [Van Meter] did not take possession of the lands in question at any time. He explains this by testifying that he had given permission to Kelsey to use the lands. However, insofar as the defendant, Edward W. Kelsey, and his wife are concerned it is 8

24 pertinent to note that [Van Meter] had recorded deeds from Sippie M. Moore to [Van Meter] and his wife, to the specific lands in question in the year 1952, two years before the defendants received the deed under which they claim. The recording of these deeds is notice to defendants that [Van Meter] was claiming an interest in said lands. IA at 331 (emphasis added). We conclude that the Trevetts' reliance on the above emphasized language in Van Meter is misplaced as the facts in Van Meter differ greatly from the circumstances in the instant case. The Trevetts argue that the recording of their deed put Ms. Walker on notice that they will claim an interest in the property, and, therefore, the trial court erred by finding that the Ms. Walker established the third element of laches. However, we find that the facts in the instant case and in Van Meter are distinguishable. In the instant case, it is undisputed that Ms. Walker obtained title to her property approximately fifteen years after the Trevetts recorded their deed in However, as Ms. Walker's property has been in her family for over seventy years and the property was merely deeded to her following her parents' deaths, there is no indication that Ms. Walker examined either the Trevetts' deed or the deeds of her predecessors-in-interest prior to taking title. Further, she first learned of the encroachment approximately ten days after she obtained title when the Trevetts, through counsel, objected to the location of the fence. Further, after notifying Ms. Walker of the encroachment in 2001, the Trevetts took no further action until

25 when they filed suit against Ms. Walker. Therefore, not only did the Trevetts treat the fence as the boundary line between the properties for the fifteen years prior to Ms. Walker taking title, the Trevetts continued to treat the fence as the boundary line between 2001 and For example, when the fence was partially knocked down during a storm, the Trevetts erected the fence in the same exact location, rather than taking the opportunity to relocate the fence to the true boundary line. Even prior to Ms. Walker taking title to her parents' property, the Trevetts' actions and inaction were not consistent with individuals who would assert rights contained in their recorded deed. Within a few days of closing on their property in 1986, the Trevetts obtained the Trice survey, indicating that the fence encroached onto their property. Instead of addressing the encroachment, as was done in Van Meter, the Trevetts did not notify the Mulbergers of the encroachment. Rather, the Trevetts treated the fence as the boundary between the two properties by installing a planter and planting approximately twenty palm trees running along their side of the fence, and installing brick pavers and underground lighting abutting the palm trees. Further, in 1995, almost ten years after the Trevetts recorded their deed, they did not object when the commercial parking lot, which was then owned by the Trust, was being resurfaced up to the fence line. Therefore, under these circumstances, we conclude that the Trevetts' reliance on Van Meter is misplaced, and the trial court correctly determined that Ms. Walker established the third 10

26 element of laches. In finding that the Ms. Walker established the fourth element of lachesinjury or preiudice to Ms. Walker if relief is accorded to the Trevetts or if the suit is determined not to be barred-the trial court reasoned, in part: The fact that [Ms. Walker's] ability to effectively defend against [the Trevetts'] claim has been greatly impaired by virtue of the fact that [Ms. Walker's] parents passed away and other potential witnesses having knowledge about the circumstances surrounding the construction and positioning of the chain link fence have disappeared during the 21 year period of delay brought about by [the Trevetts'] failure to act satisfies the fourth element. We agree with the trial court's analysis, and, therefore, conclude that the trial court correctly determined that Ms. Walker established the fourth element of laches. Accordingly, we affirm the trial court's order finding that the Trevetts' claim for ejectment is barred by the affirmative defense of laches, and determining that the current location of the fence is the boundary line between the parties' properties. As we have affirmed the trial court's determination that the Trevetts' ejectment claim is barred by laches, it is unnecessary to address Ms. Walker's cross-appeal. Affirmed. 11