Commonwealth of Kentucky Court of Appeals

Transcription

1 RENDERED: MAY 16, 2008; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO CA MR TODD ERIC DAVIS APPELLANT APPEAL FROM CLINTON CIRCUIT COURT v. HONORABLE EDDIE C. LOVELACE, JUDGE ACTION NO. 06-CI MABLE MELTON APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: COMBS, CHIEF JUDGE; NICKELL, JUDGE; GRAVES, 1 SENIOR JUDGE. GRAVES, SENIOR JUDGE: Todd Eric Davis appeals from the Findings of Fact, Conclusions of Law, and Order of the Clinton Circuit Court adjudging that Mable Melton has superior title to a vacant lot located in Albany, Kentucky. For the reasons stated below, we affirm. Todd Eric Davis is the ex-spouse of Janet Ruth Mendez. Mendez s mother is Mable Melton. In the course of the divorce proceedings, Davis and Mendez entered into a separation agreement under which Mendez would be awarded the marital 1 Senior Judge John W. Graves sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS)

2 residence located at 110 Allen Street in Albany. The agreement was later incorporated into the decree. On January 31, 2000, Davis executed a quitclaim deed conveying his interest in the property to Janet; the deed was recorded on October 25, Subsequent to the divorce, the residence burned, and the insurance proceeds paid off the mortgage on the house. Mendez did not rebuild. Davis cleaned up the remains of the burned house and then went to the Property Valuation Administrator s Office in Clinton County and had the tax rolls changed to indicate that he was the owner of the property. Davis later filed a motion in the divorce case seeking to have the property transferred to himself. Mendez denies receiving notice of the motion. On February 26, 2002, the Clinton Circuit Court entered an order directing the Master Commissioner to prepare and execute a deed conveying the property to Davis; however, this was never done. We are cited to no other claim to the property recorded of record by Davis. On February 11, 2005, Mendez executed a deed conveying the property to her mother, Melton. The deed was recorded in the Clinton County Clerk s office on February 11, Melton paid Mendez $1, as consideration for the property. When Melton learned that Davis was claiming an interest in the property, she filed a Complaint in Clinton Circuit Court to quiet title to the property. Melton later amended her Complaint to allege that she was a good faith purchaser of the property. The case was tried without a jury on May 7, On June 29, 2007, the trial court entered its Findings of Fact, Conclusions of Law, and Order quieting title in favor of Melton. This appeal followed. Before us, Davis argues that the trial court erred in determining that Melton had superior title to the property. Davis contends that the transfer from Mendez -2-

3 to Melton was fraudulent, and thus she should not be entitled to status as a good faith purchaser. We begin by noting that this case was tried by the circuit court sitting without a jury. It is before this Court upon the trial court's findings of fact and conclusions of law and upon the record made in the trial court. Accordingly, appellate review of the trial court's findings of fact is governed by the rule that such findings shall not be set aside unless clearly erroneous. A factual finding is not clearly erroneous if it is supported by substantial evidence. Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998); Uninsured Employers' Fund v. Garland, 805 S.W.2d 116, 117 (Ky. 1991). Substantial evidence is evidence, when taken alone or in light of all the evidence, has sufficient probative value to induce conviction in the mind of a reasonable person. Golightly, 976 S.W.2d at 414; Sherfey v. Sherfey, 74 S.W.3d 777, 782 (Ky.App. 2002). Ky. R. Civ. P. (CR) 52.01; Largent v. Largent, 643 S.W.2d 261 (Ky. 1982). The trial court's conclusions of law, however, are subject to independent de novo appellate determination. A & A Mechanical, Inc. v. Thermal Equipment Sales, Inc., 998 S.W.2d 505, 509 (Ky.App. 1999); Morganfield National Bank v. Damien Elder & Sons, 836 S.W.2d 893 (Ky. 1992). In its June 29, 2007, order the trial court made the following findings of fact and conclusions of law. FINDINGS OF FACT 1. This Court finds that Melton is the mother of Janet Ruth Mendez who was formerly married to Davis. Melton received a deed of conveyance from Mendez to the property in controversy on February 11, The consideration for the purchase of the real estate was one thousand dollars ($1,000.00). Melton testified that her daughter desired Melton to have the property without the payment of any money; however, Melton insisted that she would compensate Mendez for the property. Melton testified that -3-

4 she had saved one thousand dollars ($1, and paid Mendez in cash. 2. This Court finds that Luther C. Conner, Jr., an attorney at law, prepared a title opinion on the property on behalf of Melton. The title opinion prepared by Conner reflected no lis pendens notices affecting the property, nor any indication that Davis had any interest or claim to the property. 3. Davis testified that under the terms of the divorce between he [sic] and Mendez, Mendez was awarded the real estate and was to pay the debt owing on the real estate. At the time of the divorce decree, there was a marital dwelling located on the real estate. Davis proceeded to execute a deed of conveyance to Mendez for the real estate. Davis further testified that after the divorce was entered he and Mendez co-habited for a period of time and that Davis made the payments owing on the indebtedness. Davis additionally testified that the dwelling located on the real estate was destroyed by fire, that he cleaned up the debris from the fire and treated the property as his own due to the fact that Mendez had departed from Clinton County, Kentucky. Davis still additionally testified that in the fall of 2001, he visited the Office of the Property Evaluation Administrator for Clinton County, Kentucky, and effectuated a change as to who would be responsible for the payment of the taxes on the property. The actions of Davis resulted in the tax statement being billed to Davis rather than Mendez. 4. This Court finds that Davis instituted an action in the Clinton Circuit Court seeking to have the real estate transferred to him. This Court directed by virtue of an Order dated February 26, 2002, that the Master Commissioner of the Clinton Circuit Court prepare and execute a deed of conveyance to Davis for the real estate in controversy. This Court finds that the attorney for Davis at the juncture did not proceed to have the deed of conveyance prepared and presented to Davis. CONCLUSIONS OF LAW (1). Davis alleged in paragraph 10 of his amended counterclaim that the conveyance was for the consideration of one thousand dollars ($1,000), when other property in the area was selling for a much greater amount. Davis offered no proof to substantiate this contention. Billy Joe Coop, the Property Evaluation Administrator for Clinton County, Kentucky, testified that he did not utilize any particular comparable sales to value the property. Coop further testified that the stated consideration in the deed of -4-

5 conveyance of one thousand dollars ($1,000) was not insufficient, nor did it trigger any alarms. A recitation in a deed of a stipulated consideration is prima facie evidence of its correctness. Head v. Head, 293 Ky. 371, 374, 169 S. W.2d, 25, 26 (1943). (2). This Court concludes as a matter of law that in order to maintain an action to quiet title, a plaintiff must allege and prove he is in actual possession. Smith v. Williamson, 306 Ky. 467, 208 S.W.2d 503 (1948). If the plaintiff by his allegations and the proof establishes a prima facie valid title from whatever source he is entitled to a decree unless defendant shows a better one. Lemaster v. Pelfrey, 217 Ky. 534, 539, 290 S.W. 310, 312 (1927). (3). This Court concludes as a matter of law that Melton has established a superior title to the real estate. This Court does have reservations about what transpired in this action, put must predicate its decision on the testimony heard and the appropriate exhibits submitted. The foregoing findings by the trial court are supported by the evidence of record and are, accordingly, binding upon our review. CR The title of an innocent purchaser of land for value without notice of a prior deed is superior to that of a holder of a prior deed where the prior deed was not recorded until after the innocent purchaser had purchased his interest in property. McKinney v. Fox, 305 Ky. 659, 205 S.W.2d 315, 316 (Ky. 1947). It follows that, if she was an innocent purchaser, Melton s recorded deed would prevail over the order obtained by Davis in the divorce proceeding directing the Master Commissioner to execute a deed conveying the property to the appellant, but which was never acted upon. However, to be an innocent purchaser, the purchaser must have purchased her interest in good faith without actual notice of the prior conveyance (or, in the present case, the order in the divorce proceedings). Id. As noted above, Davis s principal argument on appeal is that that the transfer from Mendez to Melton was fraudulent, and thus she should not be entitled to status as an innocent. He contends -5-

6 that Melton had notice of his prior claim to the property and did not pay full value for her purchase of the property. The rule is that a party asserting ownership of real estate must prevail on the strength of his own title rather than the weakness of his adversary's claim[.] Johnson v. Potter, 433 S.W.2d 358, 359 (Ky. 1968). Davis fails to explain to us by what rationale the court in the divorce proceedings (the same judge who presided over the present case) entered an order directing the Master Commissioner to prepare a deed transferring the property to him. The final decree incorporating the settlement agreement whereby Mendez was awarded the marital residence was entered on January 31, Thus the decree had long since become final. Hence Mendez was, at the time of the entry of the order favorable to Davis in the divorce action, the fee simple owner of the property, and Davis does not allege he paid consideration to Mendez to obtain title to the property, nor does he allege adverse possession, or that Mendez gifted the property to him. Accordingly, once Davis quitclaimed away his interest in the property, his rights therein were extinguished and were never restored. Perhaps because of the foregoing, Davis does not focus upon establishing the strength of his own title but, rather, focuses on the alleged weakness of his adversary s title. In any event, as reflected in the trial court s order as set forth above, no specific findings were made relating to the alleged fraudulent conveyance or Melton s entitlement to the status of an innocent purchaser. 2 In particular, no finding was made concerning Melton s notice of the order obtained in the divorce proceedings prior to her purchase of the property. Nor does the record disclose that Davis sought a finding upon these issues. 2 The trial court did make a finding, however, that the County PVA testified that $1, was not insufficient consideration for the property. -6-

7 Pursuant to CR [a] final judgment shall not be reversed or remanded because of the failure of the trial court to make a finding of fact on an issue essential to the judgment unless such failure is brought to the attention of the trial court by written request for a finding on that issue or by a motion pursuant to Rule [motion for amendment]. See Underwood v. Underwood, 836 S.W.2d 439, 445 (Ky.App. 1992); Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982); Whicker v. Whicker, 711 S.W.2d 857, 860 (Ky.App. 1986). In the absence of more detailed findings upon the issue of a fraudulent transfer and Melton s status as a good faith purchaser, we are unable to undertake a meaningful review of the allegations. Moreover, because Davis failed to request findings upon these issues, we will not disturb the determination of the trial court that Melton s title is superior to Davis s. CR For the foregoing reasons the judgment of the Clinton Circuit Court is affirmed. ALL CONCUR. BRIEF FOR APPELLANT: Gordon T. Germain Monticello, Kentucky BRIEF FOR APPELLEE: Wallace Bowman Appalachian Research & Defense Fund of Kentucky, Inc. Columbia, Kentucky -7-