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Adverse Possession Appeal Question

Discussion in 'Adverse Possession' started by Adverse, Sep 10, 2015.

  1. Adverse

    Adverse Law Topic Starter Member

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    My question is "After an adverse Court decision, can an appellant change their argument (what they were asking for) on appeal?

    Here's the facts:

    Our neighbor's house encroaches on our lot by 8 feet. He sued us, asking to have the property line moved over 13.5 feet. We offered to give him the part of our property that his house actually encroaches on, plus 5 feet around it for maintenance purposes, several times. Each time he refused, claiming he had the right to 13.5 feet.

    We countered that he was trespassing and had not met the requirements of adverse possession, which he has not, even including previous owners of his house. The Court granted us a Summary Judgment ordering him to remove himself and his building from our property within 60 days.

    He has appealed, claiming that that decision was incorrect for the area of our property that his house actually sits on because the house has been there for 50 years, when it was built over the property line on a "double-lot", and the owners of that house have had exclusive use of that part our lot all that time.

    Our attorney explained, and cited cases, that when our neighbor asked for 13.5 feet of our property, he had to prove all of the requirements of adverse possession for all of that 13.5 feet, or face losing all of it.

    So, after five years of arguing that he has the right to 13.5 feet of our property, and losing, can he change his argument on appeal, to try to save his house?

    What I want to know is if a person can change their argument, not whether or not he is entitled to any of our property.

    And yes, there are already attorneys working on this. I'm just curious, and impatient.
     
  2. army judge

    army judge Super Moderator

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    The subject of an appeal has nothing to do with the appellate process.
    That said, one can't appeal any issue not in the original pleadings!
    (Actually, you can appeal anything, if however, your appeal is based upon something not in your original pleadings or answers; your appeal will be unsuccessful!)
     
  3. Adverse

    Adverse Law Topic Starter Member

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    Well, the only issue in the pleadings was whether he, and previous owners of his house, had met the requirements for adverse possession of our property, to which the Court decided they had not.

    At that point, in our Countersuit, it was a matter of trespass, and the Court decided we had acted in a timely manner, and ordered our neighbor to correct his trespass.

    I will know more when, and if, I see the appellant brief.
     
    Last edited: Oct 17, 2015
  4. army judge

    army judge Super Moderator

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    If he appeals an issue not previously litigated, the appeal will still be heard.
    However, it'll be summarily denied.
    That process will still burn daylight.
    Most people who use this useless tactic do it to be spiteful.
    You see, until the appeal has been dealt with, it puts your remedy in the penalty box.
    In other words, it delays you from enjoying your win.
     
  5. Adverse

    Adverse Law Topic Starter Member

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    precisely

    So, you know my neighbor?

    :D
     
  6. army judge

    army judge Super Moderator

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    LOL, I know human behavior and how they play in the legal sandbox.
     
  7. Adverse

    Adverse Law Topic Starter Member

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    This has been going on for five years, but since the judgment ordering him to remove his house from our property he has been very civil. No more profanity and threats. No more pulling up survey pins. No more rallying his buddies to harass us.

    If it wasn't for the fact that we would like to sell our house, so need to quiet our title, I wouldn't mind it never getting settled if it means peace and quiet. Once it's settled, either way, I'm sure that will end.
     
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  8. army judge

    army judge Super Moderator

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    You stood your ground, litigated the matter in the courts, and now he knows the jig is up.
     
  9. Adverse

    Adverse Law Topic Starter Member

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    The appellate court denied the appeal for lack of jurisdiction, because two Counts of our Counterclaim are not disposed.

    The appellate attorney is a real attorney, and realistic, and believes it is in our neighbor's best interest to negotiate a settlement.

    Here's the question du jour:

    Can you have a marketable title if you do not own the area immediately around the outside of your house, but have access to it for maintenance purposes by easement?

    We offered that five years ago, at the beginning. During the course of the last five years our attorney had our property re-surveyed and had the legal description of two areas drawn up: 1. The portion of our property that the neighbor's house sits on, and 2. five feet around that, and we have offered to transfer ownership of the first and offer an easement on the second.
     
  10. army judge

    army judge Super Moderator

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    I suggest you allow your attorney to make the offer again.

    You and the other party have bad blood, at least he has towards you.

    If your attorney proposed the offer, more than likely your lawsuit happy adverse possessor would be more inclined to settle.

    If you want this to end, and I believe you do, stay as far away from this as you can.
     
  11. Adverse

    Adverse Law Topic Starter Member

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    failure to communicate . . .

    We are not in any way involved with our neighbor. When I say "we" offered, I mean our attorney . . . several times.

    The question I am now asking is how much of our property does our neighbor need to own in order to gain marketable title?

    Does he need the area his house actually sits on, plus five feet around it, or can we do the five feet around it with an easement for maintenance purposes, with us retaining title to it?

    Follow?
     
    Last edited: Oct 17, 2015
  12. army judge

    army judge Super Moderator

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    It could be simply the land on which the house sits.
    However, other than the owner, I doubt many buyers would want to buy such a home.
    Even with 20 feet around the hme, and an easement, the home wouldn't be very desirable or sought after.

    That said, that's HIS problem now.
     
  13. Adverse

    Adverse Law Topic Starter Member

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    His problem and ours.

    Although the Circuit Court quieted our title and ordered him to remove his house from our property, that has not been done, and will not be done until all Counts of our Counterclaim have been disposed. If we dismiss the two remaining Counts, he will then appeal, so it still will not be done.

    Regarding marketable title, both houses had no problem being sold to new owners, ours twice and his twice, since our house was built. It is his lawsuit that has made both of them unmarketable.

    Don't kick a sleeping dog.

    Be careful what you wish for.
     
  14. army judge

    army judge Super Moderator

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    That is what I originally TRIED to tell you.

    Court remedies sought and achieved can be far worse then the problem you seek to cure.

    The cure can sometimes be more harmful than the disease.
     
  15. Adverse

    Adverse Law Topic Starter Member

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    What happens to a judgment if other Counts are not disposed, so that it never becomes a final judgment?
     
  16. army judge

    army judge Super Moderator

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    If any judgment isn't altered, changed, or overturned; the original judgment stands as issued!!!


    I suggest you make sure you ask this and other questions of yoru lawyer.

    If your current lawyer is no longer servicing you properly, hire a new lawyer.

    What you have created (or someone has created) is a right, royal mess.
     
  17. Adverse

    Adverse Law Topic Starter Member

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    No attorney problem. He has been on top of it.

    Sounds like you are saying the judgment will stand, but will not be enforceable because it is not a final judgment.

    I have read up on the requirements for a judgment to be a final judgment and it appears that the Court did everything properly, and the appearance online is that the case is disposed.

    The other party filed the appeal within the required time limit, assuming it was a final judgment.

    The appellate court where the appeal was filed has a history for being picky on this issue.
     
    Last edited: Oct 17, 2015
  18. army judge

    army judge Super Moderator

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    For the moment, you'll just have to tread water.

    My track record on predicting anything is probably as bad as yours.
     
  19. Adverse

    Adverse Law Topic Starter Member

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    I'm not sure that's not a bad thing.
     
    Last edited: Oct 20, 2015
  20. Adverse

    Adverse Law Topic Starter Member

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    I wish we could speak privately, prying eyes being what they are.
     

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