Stanley v. Doolette
Filed 8/24/07 Stanley v. Doolette CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
EDMON K. STANLEY, Plaintiff, Cross-defendant and Respondent, v. PATRICIA A. DOOLETTE, Defendant, Cross-complainant and Appellant. | E040745 (Super.Ct.No. INC 47506) OPINION |
APPEAL from the Superior Court of Riverside County. H. Morgan Dougherty, Judge. Affirmed.
Law Offices of Matt H. Morris, Matt H. Morris and Richard D. Bremer for Defendant, Cross-Complainant and Appellant.
Law Offices of Robert J. McDonnell and Robert J. McDonnell for Plaintiff, Cross-Defendant and Respondent.
1. Introduction
Allwin B. Hall and Edmon Keller Stanley were lifelong friends. In 1998, Allwin[1]and his wife, Marguerite, purchased residential real property in Palm Desert. Stanley made all the payments on the property and either resided there intermittently or rented it out from the date of purchase forward. After a court trial on the issue of quiet title by adverse possession, the court gave judgment in favor of Stanley.
Patricia Anne Doolette, the trustee of the Hall trust and the executor of Marguerites estate, appeals. We affirm the judgment because substantial evidence establishes the elements of adverse possession.
2. Facts
Doolette is the daughter of Marguerite, deceased, and the stepdaughter of Marguerites husband, Allwin, also deceased.
Allwin and Stanley were friends for almost 70 years, beginning in high school. Allwin was married to Stanleys sister before he was married to Marguerite. Allwins two daughters are Stanleys nieces. Marguerite had four children, including Doolette.
Stanley became a licensed real estate broker in 1949. In the late 1950s or the 1960s, Stanley represented the Halls in an investment in San Clemente rental property. Although he claims he did not act as the Hallss property manager, in the 1990s he collected rent on the San Clemente property for them. The Halls sold the San Clemente property in 1997. The Halls purchased the subject Palm Desert property on a date between December 1997 and March 1998.
Stanley explained the Halls bought the Palm Desert property using Veteran Administration financing (apparently with no money down) but intending to give it to Stanley who immediately undertook the mortgage payments. There is no evidence or claim in the record that the proceeds from the San Clemente property were used to purchase the Palm Desert property.
A notary testified that on June 12, 1998, she notarized a grant deed signed by the Halls at their residence. The notary then mailed the deed to Stanley. Stanley testified he received the signed deed but lost it before he could record it.
From the outset, Stanley paid the Palm Desert mortgage, including the impound account for taxes and insurance. He paid all the utilities. He also paid to advertise the property for rental. He and his wife or their family used the property when it was not being rented. After Stanleys wife died in 2000, he visited the property less often. Harry Ellis was a weekly tenant intermittently between 1999 and September 2005. Stanley received all the rental income.
Stanley acknowledged that the property loan was always in the name of the Halls. In 1998, he had occasional contact with the Halls but did not know them to be suffering from Alzheimers disease. After that date, he had little contact with the Halls but he understood Allwin was quite ill.
Doolette testified that, in 1998, the Halls were living in Downey but they were experiencing difficulties with living independently and the family decided they should move in with Doolette in San Luis Obispo. Both Halls were soon diagnosed with Alzheimers disease. Before he died, Allwin had to be institutionalized.
Allwin died in 2001. Marguerite died in 2004.
Doolette acknowledged the Halls had not made any payments for the benefit of the Palm Desert property.
The original complaint was filed in December 2004. The court gave judgment quieting title on a theory of adverse possession in favor of Stanley.
3. Dismissal of Appeal
Stanley urges the appeal should be dismissed because the judgment was entered on March 2, 2006, and the notice of appeal was filed on June 8, 2006, 98 days later. (Cal. Rules of Court, rule 8.104(a)(2) and (b).)
We have reviewed this issue twice already in appellate motions and determined the appeal is timely. We reach the same conclusion now. The record demonstrates the court entered the judgment on March 2, 2006. On March 6, Stanleys attorney mailed an unsigned, undated copy of the judgment without a file stamp to Doolettes attorney. On May 19, Stanleys attorney mailed a signed, dated copy of the filed judgment to Doolettes attorney. Doolette filed the notice of appeal 19 days later.
The California Supreme Court has recently reiterated the principle of strict compliance with the requirements of California Rules of Court, rule 8.104. (Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 902-903.) Subdivision (a)(2) of the rule provides that the 60-day time period for filing a notice of appeal begins to run after the party filing the notice of appeal serves or is served by a party with a document entitled Notice of Entry of judgment or a file-stamped copy of the judgment, accompanied by proof of service. In the present case, the earliest date that proper notice arguably was given by Stanley to Doolette was May 19 when his attorney mailed a copy of the file-stamped judgment, meaning the notice of appeal filed on June 8 was timely.
We also conclude the opening brief was filed timely in accordance with California Rules of Court, rule 8.220. No dismissal of the appeal is warranted on that ground.
4. Discussion
We employ a deferential standard of review of the judgment. (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1203-1205.)
Code of Civil Procedure section 325 describes the elements of adverse possession, . . . it shall be shown that the land has been occupied and claimed for the period of five years continuously, and the party . . . ha[s] paid all the taxes, state, county, or municipal, which have been levied and assessed upon such land.
Doolette first contests the element of continuous possession because Stanley did not live continuously at the property and because he rented it part of the time. Doolette confuses possession with occupancy. Possession does not mean Stanley had to live full-time on the property: The adverse claimant need not reside upon the land. (Park v. Powers (1935) 2 Cal.2d 590, 598.) Furthermore, possession by a tenant constitutes adverse possession. (Palin v. Sweitzer (1937) 8 Cal.2d 329, 331.) Finally, temporary vacancy does not interrupt possession: It is enough that the property be devoted to the ordinary use of the occupant, and temporary abandonments or periods of vacancy which evince no intention of abandonment of possession do not interrupt the possession. (McLeod v. Reyes (1935) 4 Cal.App.2d 143, 157.)
Doolette relies on the case of Wareham v. Randolph (1960) 184 Cal.App.2d 218, 224-225, for the proposition that occasional visits to or possession of the property does not satisfy the requirements of adverse possession. Wareham involved unimproved desert property that was not being cultivated or improved. The claimant had visited the property only three or four times between 1936 and 1955. Wareham is not comparable to the present situation in which the evidence showed that Stanley assumed the role of owner and landlord of the property by making all the payments associated with it, renting it whenever he could secure a tenant, and also using it for himself and his family.
Similarly, Doolette misunderstands the meaning of the legal term, hostile: To constitute a hostile claim there need not be open aggression or combat, neither need a notice to the owner be given other than the claimant's occupancy. (Ortiz v. Pacific States Properties (1950) 96 Cal.App.2d 34, 37.) Hostility requires, not that parties must have a dispute as to title during the period of possession, but that the adverse possession must be adverse to the record owner, unaccompanied by any recognition, express or inferable from the circumstances, of right of possession in the record owner. (Kraemer v. Kraemer (1959) 167 Cal.App.2d 291, 306.) Stanleys use of the property as the owner was hostile for purposes of adverse possession.
Additionally, there is no doubt that Stanley paid all the taxes on the property since it was purchased. Doolette relies on a case in which no taxes were paid. (Colorado Pacific Land Co. v. Clinton E. Worden Co. (1933) 132 Cal.App.720.) But payment can be made either by the adverse claimant or by someone else on his behalf. (Gray v. Walker (1910) 157 Cal. 381, 386.) It is undisputed the payments were made through the intermediary of the impound account from funds deposited by Stanley.
We agree the issue of the lost deed is not strictly relevant because the case can easily be decided on adverse possession principles. The trial court acknowledged as much in its ruling, saying the testimony regarding the deed has little relevance to an adverse possession claim.
5. Disposition
We affirm the judgment. Stanley shall recover his costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
s/Gaut
J.
We concur:
s/Ramirez
P. J.
s/King
J.
Publication Courtesy of San Diego County Legal Resource Directory.
Analysis and review provided by El Cajon Property line attorney.
