Gillmor v. Cummings

Citations: 904 P.2d 703; 274 Utah Adv. Rep. 29; 1995 Utah App. LEXIS 95; 1995 WL 574651Docket: 940490-CA

Court: Court of Appeals of Utah; September 28, 1995; Utah; State Appellate Court

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Veigh Cummings appeals a trial court judgment that awarded Charles and Nadine Gillmor title to a disputed triangular parcel of land in Summit County and granted the Gillmors special damages, including attorney fees. The case involves a title dispute stemming from property deeds dated October 25, 1926, and October 30, 1930, which describe a common boundary line using specific measurements. Cummings argues that the boundary is located on the east side of an adjacent road, while the trial court determined it lies to the west of the road. The Gillmors contend that even if the boundary is defined as east of the road, evidence shows the road was later relocated. Cummings did not personally survey the property but hired a surveyor to establish boundaries based on the road's center, leading to overlapping descriptions in subsequent deeds he issued. The Gillmors initiated a lawsuit against Cummings to quiet title and for slander of title damages, with other defendants settling before trial. The court found that Cummings had slandered the Gillmors' title and awarded them attorney fees and costs. The appellate court affirmed part of the trial court's decision but reversed and remanded other aspects for further consideration.

Cummings raises four key claims regarding the trial court's findings: (1) inadequate evidence supports the court's conclusion that the Gillmors are the rightful owners of the property, leading to an improper quieting of title; (2) insufficient evidence exists to support the determination that the property boundary was not established by acquiescence; (3) inadequate evidence supports the finding that Cummings maliciously published defamatory documents concerning the Gillmors' property title; and (4) the court improperly awarded special damages to the Gillmors.

The trial court's findings are reviewed under a "clearly erroneous" standard, which is highly deferential to the court’s determinations, particularly concerning witness credibility and the overall context of the proceedings. In the quiet title matter, the court found the Gillmors' survey witness, James West, more credible regarding the legal description of the property boundary, concluding that Cummings had no interest in the disputed area. The core issue revolves around the interpretation of a specific boundary description, where Cummings argues it should relate to the east side of the road. However, the trial court accepted West's interpretation, which posits that the boundary runs to a theoretical point rather than being defined by physical landmarks. The court determined that the deed description is unambiguous, indicating that the boundary is not set by physical features but rather by a defined theoretical location. As such, parol evidence is inadmissible to alter the clear terms of the deed.

The deed in question refers specifically to the section quarter corner rather than being linked to the road, leading to the conclusion that the description is clear and supports the trial court's finding that the Gillmors are the rightful owners of the property. Cummings contends that even with the unambiguous deed, the trial court erroneously determined that a new boundary was not established by acquiescence, arguing that the record lacks evidence to the contrary. The doctrine of boundary by acquiescence requires: (1) occupation up to a visible line marked by monuments, fences, or buildings; (2) mutual acquiescence to that line as a boundary; (3) a lengthy duration, generally over 20 years; and (4) involvement of adjoining landowners. Cummings asserted that a fence had marked the boundary since 1964, but the trial court found insufficient evidence to establish a new boundary by acquiescence. Testimony from Frank Marcellin indicated that the original fence was moved shortly after being erected, undermining Cummings' claim of a permanent boundary. The trial court deemed Marcellin credible and questioned Cummings' credibility, concluding that Cummings did not prove the existence of a definite boundary line for the required time frame.

Additionally, regarding Cummings' claim of slander of title, the court found that Cummings failed to prove he did not slander the Gillmors' title. To establish slander of title, a claimant must demonstrate: (1) publication of a disparaging statement about title; (2) that the statement was false; (3) that it was made with malice; and (4) that it caused actual or special damages. Cummings contested the finding of malice, asserting a lack of evidence for such a determination. However, the record indicated sufficient evidence of malice, particularly due to Cummings' knowledge of the deeds and descriptions, contrasted with testimony from a surveyor hired by Cummings who stated he had not received relevant documentation from him, but only directions to survey the middle of the road as the boundary.

Neeley testified that his "post survey" revealed he lacked access to any property description or deed. Cummings did not compare the legal descriptions from Neeley's survey with his deed and failed to contact the Gillmors regarding the boundary line. Although Cummings claimed Emil Marcellin told him the road marked the boundary, Marcellin's son indicated Cummings merely "assumed" this and did not provide an answer when asked who asserted his ownership of the property. The trial court noted Cummings' demeanor, which suggested malice, and gave little weight to his testimony. Cummings claimed his testimony was decisive, but the court found it insufficient to overturn the malice finding, which was not clearly erroneous.

Regarding special damages, Cummings argued that the Gillmors did not prove they lost a sale due to his actions. However, attorney fees can be considered special damages if incurred to remedy harm from slander of title. The Gillmors claimed $81,140.27 in legal fees and $11,993.50 in survey costs but were awarded only half of the attorney fees, totaling $40,570.14, and the full survey costs. The trial court acknowledged damages for the true owner but deemed the full amount requested excessive due to multiple attorneys being involved and other factors affecting the case. The exact attorney fees incurred specifically for clearing the title were not clearly documented, and while the award of attorney fees is discretionary in slander of title cases, it must be based on factual findings supported by evidence.

The trial court's findings regarding the special damages incurred were insufficient for a meaningful review, prompting a remand for proper determination of damages owed to the Gillmors. The court affirmed that sufficient evidence supported the Gillmors as rightful property owners and determined that the boundary between their property and Cummings' was not established by acquiescence, with Cummings acting with malice. While the award of special damages to the Gillmors was deemed proper, the lack of adequate findings necessitated correction. The trial court correctly excluded evidence related to property value and amounts paid by the title insurer, and also appropriately disallowed Cummings from raising an adverse possession defense. Cummings' counterclaim for slander of title was rejected because he failed to demonstrate the necessary publication of a disparaging statement about his title, as he never owned the property in question. The decision clarified that no ambiguity existed in property descriptions, establishing the fence as the boundary for adjudication purposes. Cummings provided inconsistent testimony regarding property documentation, undermining his credibility.