Classic Country Land, LLC v. Eversole

Filing 59

MEMORANDUM OPINION & ORDER : 1. Plaintiff Classic Country Land, LLCs Motion for Preliminary Injunction [R. 8 ] is DENIED AS MOOT; 2. Defendant Dean Eversole's Motion to Amend/Correct Answer [R. 10 ] is GRANTED; 3. Defendant Dean Eversole's Answer [R. 7 ] is AMENDED to include the Supplement Tendered Answer [R. 10-1]; 4. Plaintiff Classic Country Land, LLC's Motion for Partial Summary Judgment [R. 26 ] is GRANTED; 5. The Court ADOPTS the boundary lines of t he properties as established by thesurvey completed by Neil Grande [R. 26 -1]; 6. The Court FINDS that Mr. Eversole did not establish adverse possession as amatter of law; 7. The Court FINDS that Mr. Eversole trespassed on the property owned by Clas sic Country, LLC, as a matter of law; 8. Plaintiff Classic Country Land, LLC's Motion to Submit for Decision [R. 36 ] is DENIED AS MOOT; 9. Defendant Dean Eversole's Motion to Reschedule Trial [R. 49 ] is GRANTED; 10. Plaint iff Classic Country Land, LLC's Renewed Motion for Summary Judgment [R. 58 ] is DENIED AS MOOT; 11. The FINAL PRETRIAL CONFERENCE in this matter, currently scheduled for December 4, 2018, is RESCHEDULED for 11/28/2018 at 10:00 AM in FRANKFORT before Judge Gregory F. VanTatenhove ; and 12. JURY TRIALin this matter, currently scheduled for December 18, 2018, is RESCHEDULED to 12/11/2018 at 10:00 AM, counsel at 9:30 AM in FRANKFORT before Judge Gregory F. VanTatenhove. Signed by Judge Gregory F. VanTatenhove on 9/5/18.(SYD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON
CLASSIC COUNTRY LAND, LLC,
Plaintiff,
V.
DEAN EVERSOLE,
Defendant.

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Civil No. 6:17-cv-00113-GFVT-HAI

MEMORANDUM OPINION
&
ORDER

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This case presents a simple dispute between two neighbors who cannot agree on the
boundary lines between their properties. 1 The neighbors, Mr. Dean Eversole and Classic
Country Land, LLC, have both laid claim to the same strip of property along a ridge line in
Leslie County, Kentucky. Mr. Eversole has now attempted to prohibit Classic Country from
accessing the disputed land, and in response, Classic Country filed this suit. For the reasons that
follow, the Court GRANTS Mr. Eversole’s Motion to Amend and Classic Country’s Motion for
Partial Summary Judgment. Classic Country’s Motion to Submit, Motion for Preliminary
Injunction, and Renewed Motion for Summary Judgment are DENIED AS MOOT, and Mr.
Eversole’s Motion to Reschedule Trial is GRANTED.

1

While disputes over land are typically better suited for state court, this action is in federal court on the
basis of diversity. Classic Country Land, LLC is a Nevada Corporation with a principal place of business
in Texas, while Mr. Dean Eversole is a citizen, resident, and domiciliary of Kentucky. [R. 1 at 1.]
Classic Country seeks $650,000 in damages. Id. at 8. Accordingly, the requirements for an amount in
controversy exceeding $75,000 and diversity of citizenship pursuant to 28 U.S.C. § 1332 are met. Neither
party has contested jurisdiction in this matter, and the Court determines sua sponte that it has jurisdiction
under § 1332 to hear this matter. Nonetheless, a Court sitting in diversity must apply the substantive state
law. Erie R.R. Co. v. Thompkins, 303 U.S. 64 (1938). Based on the briefing for all pending motions, the
parties agree that Kentucky law applies to this dispute.

I
In April of 2016, Classic Country Land, LLC, acquired approximately 200 acres of
property in Leslie County, Kentucky, which the company planned to develop and sell as
recreational land. [R. 8 at 1.] After a survey of the land was complete, Classic Country divided
the property into several tracts and constructed access roads. Id. However, by early 2017,
Classic Country discovered that their neighbor, Mr. Dean Eversole, had constructed earthen
berms across the road, restricting travel to some of these tracts. Id. at 1–2. Mr. Eversole admits
constructing the berms. [R. 9 at 2.] In defense of his actions, he contests the property
boundaries asserted by Classic Country, both debating the surveyed boundaries and claiming
adverse possession of the disputed land. Id. Classic Country asserts that these berms have
resulted in lost customers and profits. [R. 8 at 2.]
Shortly after this case was filed in late 2017, Classic Country filed a motion seeking a
preliminary injunction against Mr. Eversole, enjoining further interference by Mr. Eversole with
the roadways leading to Classic Country’s properties. [R. 8.] Mr. Eversole then moved to
amend his Answer to Classic Country’s Complaint, asserting a defense of adverse possession.
[R. 10.] Classic Country did not oppose this motion. Two months later, Classic Country filed a
motion seeking partial summary judgment as to the owner of the disputed property and as to
whether Mr. Eversole was trespassing on Classic Country’s land. [R. 26.] Mr. Eversole
maintains that the land is his, and thus he is not trespassing. [R. 42.] Mr. Eversole, however,
was unable to produce a survey of his property, nor did Mr. Eversole provide any evidence as to
his ownership other than his own affidavit. [R. 42; R. 55.]

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II
A
The Court first turns to Mr. Eversole’s request to amend his answer. Amendments to
pleadings are governed by Federal Rule of Civil Procedure 15, which provides that even if the
party does not seek the amendment within the of-right period, the court may give leave to permit
such an amendment and should “freely give leave when justice so requires.” Fed. R. Civ. P.
15(a)(2). The United States Supreme Court has read this provision broadly, and the Sixth Circuit
has recognized that “where the underlying facts would support, a motion for leave to amend
should be granted, except in cases of undue delay, undue prejudice to the opposing party, bad
faith, dilatory motive, repeated failure to cure deficiencies by amendments previously allowed,
or futility.” Duggins v. Steak’n Shake, Inc., 195 F.3d 828 (6th Cir. 1999) (citing Foman v. Davis,
371 U.S. 178 (1962)). Here, Classic Country has not opposed Mr. Eversole’s motion and the
Court can find no instance of “undue delay, undue prejudice to the opposing party, bad faith,
dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, or
futility.” Id. It appears, instead, that Mr. Eversole merely seeks to clarify the defenses he
asserted in his initial answer. [Compare R. 10 with R. 7.] Without objection, the Court grants
Mr. Eversole’s Motion to Amend.
B
1
Under Federal Rule of Civil Procedure 56, summary judgment is appropriate “if the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56. “A genuine dispute exists on a material fact,
and thus summary judgment is improper, if the evidence shows ‘that a reasonable jury could

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return a verdict for the nonmoving party.’” Olinger v. Corp. of the President of the Church, 521
F. Supp. 2d 577, 582 (E.D. Ky. 2007) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986)). Stated otherwise, “[t]he mere existence of a scintilla of evidence in support of the
Plaintiff’s position will be insufficient; there must be evidence on which the jury could
reasonably find for the Plaintiff.” Liberty Lobby, 477 U.S. at 252.
The moving party has the initial burden of demonstrating the basis for its motion and
identifying those parts of the record that establish the absence of a genuine issue of material fact.
Chao v. Hall Holding Co., Inc., 285 F.3d 415, 424 (6th Cir. 2002). The movant may satisfy its
burden by showing “that there is an absence of evidence to support the non-moving party’s
case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has satisfied this
burden, the non-moving party must go beyond the pleadings and come forward with specific
facts demonstrating the existence of a genuine issue for trial. Fed. R. Civ. P. 56; Hall Holding,
285 F.3d at 424 (citing Celotex, 477 U.S. at 324). Moreover, “the nonmoving party must do
more than show there is some metaphysical doubt as to the material fact. It must present
significant probative evidence in support of its opposition to the motion for summary judgment.”
Hall Holding, 285 F.3d at 424 (internal citations omitted).
When applying the summary judgment standard, the Court must review the facts and
draw all reasonable inferences in favor of the non-moving party. Logan v. Denny’s, Inc., 259
F.3d 558, 566 (6th Cir. 2001) (citing Liberty Lobby, 477 U.S. at 255). However, the Court is
under no duty to “search the entire record to establish that it is bereft of a genuine issue of
material fact.” In re Morris, 260 F.3d 654, 655 (6th Cir. 2001). Rather, “the nonmoving party
has an affirmative duty to direct the court’s attention to those specific portions of the record upon
which it seeks to rely to create a genuine issue of material fact.” Id.

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2
Classic Country first seeks summary judgment as to the boundary line between Classic
Country’s land and Mr. Eversole’s property. [R. 26 at 5.] According to Classic Country, the
boundary line runs through the center of a ridge separating two areas in Leslie County known as
Peach Meadow Orchard and Wilder Branch. Id. at 6. Classic Country believes they have rights
to Wilder Branch while Mr. Eversole owns only land in Peach Meadow Orchard. Id. Mr.
Eversole claimed his deed included land across the ridge and into Wilder Branch. [R. 26-3 at
14.] After purchasing the tract of land, Classic Country hired Mr. Neil Grande, a licensed
professional land surveyor, to mark all boundary lines and subdivide the property for resale. [R.
26-1; R. 26-3 at 5–6.] Mr. Grande compared his survey to previous surveys done by Jim
Meredith in 1977 [R. 26-3 at 6] and Thomas Boggs in 2015 [R. 26-3 at 22; R. 26-4], and he
looked at the deeds conveyed to Mr. Eversole [R. 26-3 at 19]. Mr. Grande determined Mr.
Eversole’s property runs up to the center of the ridge dividing Peach Meadow Orchard and
Wilder Branch. [R. 26-3 at 28–31.]
Mr. Eversole disputes this survey because “a set stone had been moved and was not in the
location where originally set,” placing the accuracy of Mr. Grande’s survey in dispute. [R. 42 at
2.] However, Mr. Eversole presents only his own affidavit 2 as evidence to support this theory.
[R. 42-1.] A nonmoving party in opposition to summary judgment “must employ proof other
than his own pleadings and own affidavits to establish the existence of specific triable facts.”
Ashbrook v. Block, 917 F.2d 918, 921 (6th Cir. 1990) (citing Celotex Corp. v. Catrett, 477 U.S.

2

Attached to his affidavit is a statement from the United States Forest Service, purportedly by Richard
Frederick. [R. 42-1 at 2–4.] However, neither Mr. Eversole nor Mr. Frederick has filed anything
confirming the veracity of this statement or authenticity of the document. Hearsay evidence cannot be
considered as sufficient evidence to defeat a motion for summary judgment. See Alpert v. United States,
481 F.3d 404, 409 (6th Cir. 2007) (quoting U.S. Structures, Inc. v. J.P. Structures, Inc., 130 F.3d 1185,
1189 (6th Cir. 1997)).

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317, 324 (1986)). To determine whether a genuine issue of material fact exists, the Court must
consider evidence aside from Mr. Eversole’s statements, but he has provided none. As to the
issue of boundary lines, Classic Country has demonstrated an absence of evidence to support Mr.
Eversole’s claims, and Mr. Eversole has not satisfied his burden of producing specific facts.
Celotex, 477 U.S. at 324–25. Thus, the Court agrees that partial summary judgment is
appropriate as to the determination of boundary lines and hereby adopts the boundary lines
established by Mr. Neil Grande.
In response to the survey, Mr. Eversole next attempts to claim the disputed land is his,
secured through adverse possession. [R. 42 at 2.] According to his own statements, Mr.
Eversole logged the dispute land, as well as laid his water line across the disputed land. Id.
Classic Country seeks summary judgment that this claim fails as a matter of law. [R. 26 at 6.]
To acquire title via adverse possession in Kentucky, possession must be (1) hostile, and
“under a claim of right;” (2) actual; (3) exclusive; (4) continuous; and (5) open and notorious.
Moore v. Stills, 307 S.W.3d 71, 77–78 (2010) (quoting Appalachian Regional Healthcare, Inc. v.
Royal Crown Bottling Co., Inc., 824 S.W.2d 878, 880 (Ky. 1992)). All of these must be
maintained for a period of fifteen years, and Mr. Eversole has the burden of proving each
element by clear and convincing evidence. Id. at 78. Again, Mr. Eversole offers only his own
statements that “he is extremely familiar with the property.” [R. 42 at 2.] He claims he has used
the property for logging in 2014 and laying a water line shortly thereafter. Id.
First, Mr. Eversole claims that his deed is dated December 12, 2008, less than ten years
prior to the filing of this action. [R. 9 at 1.] Further, he claims his adverse possession began in
2014 when he began logging the property. [R. 42 at 2.] At best, Mr. Eversole has demonstrated
possession since 2008, which equates to possession for nine years, not fifteen years, and not

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sufficient to establish adverse possession. 3 Moore, 307 at 77–78. Even so, Mr. Eversole’s only
claims of possession have been for logging once in 2014 and laying a water line. [R. 42 at 2.]
Mere timbering, even if done over a period of fifteen years, does not constitute an adverse
holding, and thus, does not meet the requirements of adverse possession. Marsee v. Colson, 210
S.W.2d 952, 953 (Ky. 1948). Further, the running of a water line does not establish adverse
possession, either. While the water line could evince “actual possession,” the requirement that
possession be “open and notorious” requires Mr. Eversole to “openly evince a purpose to hold
dominion over the property with such hostility that will give the nonpossessory owner notice of
the adverse claim.” Appalachian Regional Healthcare, Inc., 824 S.W.2d at 880. The water
line’s position does not suggest such dominion. Additionally, Mr. Eversole states that he did so
without complaint from the previous owners of Classic Country’s tract of land. [R. 42 at 2.]
This suggests that Mr. Eversole had permission to run the water line, and that such an interest in
the land was not hostile. Thus, even if the Court accepts his statements as true, Mr. Eversole has
not presented clear and convincing evidence that he has established adverse possession to this
disputed land.
Classic Country also seeks summary judgment as it relates to Mr. Eversole’s trespass of
their property. [R. 26 at 10.] Mr. Eversole only defends this motion by stating he is the owner of
the property. [R. 9; R. 26.] Indeed, Mr. Eversole admits that he constructed berms upon the
disputed property “to keep traffic and public from accessing his property.” [R. 9 at 2.] To
succeed on a claim of trespass to real property in Kentucky, a plaintiff must prove the defendant

3

Mr. Eversole cites to Fordson Coal Co. v. Collins, suggesting that he does not need to be in possession
for the entire fifteen years. [R. 42 at 3.] The Court, however, has been unable to locate the quoted
passage offered by Mr. Eversole. Instead, Fordson Coal Co. states, “To acquire title by adverse
possession, the possession must not only be actual, but so continued as to furnish a cause of action every
day during the whole period prescribed by the statute (Ky. St. § 2505), which is fifteen years or more.”
104 S.W.2d 985, 987 (1937).

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entered or remained upon the plaintiff’s land without the plaintiff’s consent. Bradford v. Clifton,
379 S.W.2d 249, 250 (Ky. 1964). Here, the Court has determined that the disputed land belongs
to Classic Country, Mr. Eversole admits to entering the disputed land, and neither party suggests
that Classic Country permitted Mr. Eversole to so enter. Mr. Eversole, therefore, has trespassed
on Classic Country’s land.
C
Classic Country has also asked this Court to enjoin Mr. Eversole’s interference with
Classic Country’s property. [R. 8 at 4.] Following Classic Country’s filing of the preliminary
injunction, the parties attended a settlement conference conducted by Magistrate Judge Hanly A.
Ingram. [R. 24.] At the conference, the parties were able to reach an agreement concerning
Classic Country’s access to the areas in question. Id. Accordingly, the parties agreed to hold the
motion for preliminary injunction in abeyance. [R. 34.] Having resolved the motion for partial
summary judgment, the Court has determined the boundary lines and that Mr. Eversole has no
claim under adverse possession. Thus, because the parties have agreed to a preliminary
resolution and because the Court has now resolved the underlying issue on the merits, the motion
for a preliminary injunction is moot. If Mr. Eversole further interferes with the land, Classic
Country remains free to file additional motions for injunctive relief to protect their property
rights.
D
There remains in this matter, three other pending motions. Following Classic Country’s
motion for partial summary judgment, Mr. Eversole did not respond or give notice of
employment of a surveyor. [R. 36.] Therefore, Classic Country moved to submit the Motion for
Summary Judgment to the Court for decision. Id. The Court, instead, permitted Mr. Eversole

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additional time to respond. [R. 40; R. 51.] This matter now having been resolved, Classic
Country’s motion to submit is now moot.
Next, Mr. Eversole has requested a new trial date because of a scheduling conflict. [R.
49.] Trial is currently set for December 18, 2018, but counsel for Mr. Eversole will be out of the
state from December 16, 2018 through December 23, 2018. Id. Classic Country does not object
to the trial date, but requests an advanced date, rather than a continuance. [R. 53.] Mr. Eversole
does not object to an earlier date. Having no objection, the Court will grant this motion.
Finally, for reasons unclear to the Court, Classic Country has also filed a Renewed
Motion for Summary Judgment. [R. 58.] This motion requests the same relief requested in its
previous Motion for Partial Summary Judgment. [Compare R. 26 with R. 58.] Having already
decided Classic Country’s initial request for summary judgment, and having no new arguments
presented in the renewed motion, Classic Country’s renewed motion is also moot.
III
In order to defeat a motion for summary judgment, the non-movant is required to provide
a mere scintilla of evidence to suggest a genuine issue of material fact. Having provided none,
Mr. Eversole is unable to establish claim to the disputed land. Accordingly, and the Court being
sufficiently advised, it is hereby ORDERED as follows:
1.

Plaintiff Classic Country Land, LLC’s Motion for Preliminary Injunction [R. 8] is

DENIED AS MOOT;
2.

Defendant Dean Eversole’s Motion to Amend/Correct Answer [R. 10] is

GRANTED;
3.

Defendant Dean Eversole’s Answer [R. 7] is AMENDED to include the

Supplement Tendered Answer [R. 10-1];

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4.

Plaintiff Classic Country Land, LLC’s Motion for Partial Summary Judgment [R.

26] is GRANTED;
5.

The Court ADOPTS the boundary lines of the properties as established by the

survey completed by Neil Grande [R. 26-1];
6.

The Court FINDS that Mr. Eversole did not establish adverse possession as a

matter of law;
7.

The Court FINDS that Mr. Eversole trespassed on the property owned by Classic

Country, LLC, as a matter of law;
8.

Plaintiff Classic Country Land, LLC’s Motion to Submit for Decision [R. 36] is

DENIED AS MOOT;
9.

Defendant Dean Eversole’s Motion to Reschedule Trial [R. 49] is GRANTED;

10.

Plaintiff Classic Country Land, LLC’s Renewed Motion for Summary Judgment

[R. 58] is DENIED AS MOOT;
11.

The Final Pretrial Conference in this matter, currently scheduled for December 4,

2018, is RESCHEDULED to Wednesday, November 28, 2018, at the hour of 10:00 a.m. in the
Courtroom of the United States Courthouse in Frankfort, Kentucky; and
12.

Jury Trial in this matter, currently scheduled for December 18, 2018, is

RESCHEDULED to Tuesday, December 11, 2018, at the hour of 10:00 a.m. in the Courtroom
of the United States Courthouse in Frankfort, Kentucky, with counsel to arrive by 9:30 a.m.

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This the 5th day of September, 2018.

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