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Batterbee v. Roderick

Florida Court of Appeals, Second District

August 30, 2019

MICHAEL BATTERBEE, Appellant,
v.
MERRI L. RODERICK, as trustee for the Wilma L. Hinkley Trust, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal from the Circuit Court for Highlands County; Larry Helms, Judge.

          Clifford R. Rhoades of Clifford R. Rhoades, P.A., Sebring, for Appellant.

          James V. Lobozzo, Jr., of James V. Lobozzo, Jr., Sebring, for Appellee.

          NORTHCUTT, Judge.

         Michael Batterbee filed suit against Merri Roderick, trustee of the Wylma L. Hinkley Trust, seeking to quiet title to real property based on a claim of adverse possession. Following a bench trial, the trial court rejected the claim, holding that Batterbee failed to prove that he and his predecessors in interest had held the property in a hostile manner for the requisite statutory period. We disagree and reverse.

         The material facts are largely undisputed. At issue is a mobile home and its associated plot in a mobile home park in Sebring, Florida. In 1993 the owner of the property, Wylma Hinkley, transferred it to the Wylma L. Hinkley Trust, for which she served as trustee. In 2008 she asked her son, Scott Hinkley, to move into the home. Scott and his then-girlfriend, Suzann Batterbee, then took exclusive possession. In 2009, shortly after Scott and Suzann were married, Wylma executed a quitclaim deed conveying the property to Scott. Scott also signed the deed. As written, however, the deed did not state that Wylma executed it in her capacity as trustee of the trust that owned the property. Wylma died in 2011, whereupon Scott's sister, Merri Roderick, succeeded Wylma as trustee of the trust.

         The parties agree that the 2009 deed conveying the property to Scott without reference to Wylma's capacity as trustee was legally ineffective. The evidence suggests that no one was aware of that problem. The trial court found that Scott took delivery of the deed in good faith. Scott recorded the deed, and he and Suzann lived on the property openly and exclusively, improved the property, and paid all applicable taxes; they possessed the property as if they were its true owners.

         When Scott and Suzann began divorce proceedings in 2014, they both listed the home as an asset on their financial affidavits. At some point during the divorce, Merri first learned that Scott and Suzann claimed to own the property. In response to this discovery, in 2015 Merri recorded a corrective quitclaim deed purporting to convey the property back to the trust. Apparently, the court hearing Scott and Suzann's divorce was unaware of Merri's deed; its 2016 final judgment dissolving the marriage awarded the property to Suzann. She continued to occupy the property until later that year, when she died. Upon Suzann's death, her interest in the property passed to her brothers, Michael and Dennis Batterbee. Dennis then conveyed his interest to Michael, the appellant here.

Section 95.16(1), Florida Statutes (2016), provides that
[w]hen the occupant, or those under whom the occupant claims, entered into possession of real property under a claim of title exclusive of any other right, founding the claim on a written instrument as being a conveyance of the property, or on a decree or judgment, and has for 7 years been in continued possession of the property included in the instrument, decree, or judgment, the property is held adversely.

         To support an adverse possession claim, "the possession must have been for the full statutory period [of seven years], under claim of right or color of title, and must have been actual, open, visible, notorious, continuous, and hostile to the true owner and to the world at large." Douglass v. Aldridge, 105 So. 145, 146 (Fla. 1925). The only element at issue in this appeal is hostility.

         The trial court concluded that Michael failed to prove that his predecessors in interest held the property in a hostile manner for the full statutory period of seven years.[1] The court reasoned that because Scott took possession in 2008 with Wylma's permission, his possession was not hostile until Merri, as successor trustee, learned of Scott and Suzann's claim of ownership during the divorce proceedings in 2014. Indeed, "[p]ermission to occupy the land, as given by the true title owner to the claimant, will negate the hostility element." Herrin v. O'Hern, 275 P.3d 1231, 1234 (Wash.Ct.App. 2012); see also Turner v. Wheeler, 498 So.2d 1039, 1042 (Fla. 1st DCA 1986) ("It is essential to a finding of adverse possession that the possessor's use not be permissive. Actual use is presumed permissive and the user has the burden to demonstrate that his use was without permission." (citations omitted)). Michael does not appear to contest the court's finding that Scott and Suzann's initial use of the property, beginning in 2008, was with Wylma's permission, and the evidence supports the trial court's finding on that point. The key issue, then, is when that permissive use ended.

         "Permissive use can become adverse, but only upon clear, positive and distinct notification of the owner by the permissive user that he is claiming the property other than by permission." ...


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