KERNEL FRANCIS JAMES FRANCIS APPELLANTS v. ERIC HALL JARED WAYNE HALL AND MARY LEE APPELLEES (2013)

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Kernel Francis and James Francis, proceeding pro se, (hereinafter the Francises) ^Double appeal the order of the Knott Circuit Court granting summary judgment in favor of Eric Hall and Jared Hall. The defendants originally named by the Halls did not oppose the Halls' motion for summary judgment and are not parties to this appeal.

The Halls filed a quiet title action with the Knott Circuit Court.   Approximately two years after the action was filed, the Francises sought leave to intervene, purportedly as defendants, in the action claiming ownership of the subject property.   In their motion, the Francises asserted an ownership interest in the subject property via deed recorded in Deed Book 211, Page 719.^Double At the hearing on the motion to intervene, the Francises asserted ownership to the property via Deed Book 193 Page 627.^Double The circuit court permitted intervention.

Thereafter, the Halls filed a motion for summary judgment.   In conjunction with their motion, the Halls presented two deeds filed of record to demonstrate their title to the subject property, which they referred to as Tracts One and Two, as well as a chain of title for each tract dating back to 1942 and 1925, respectively.

At the summary judgment hearing at the request of the Francises, surveyor Kenneth Johnson testified regarding the survey he conducted on behalf of Mary Lee.^Double Mr. Johnson indicated that the survey was a true and accurate survey to the best of his professional ability and that “these people” ^Double had lived on the property since the 1940's.   The Francises questioned surveyor Johnson regarding the methodology and deeds utilized when conducting the survey in an apparent attempt to attack the validity of the survey.   Also at the request of the Francises, the survey conducted by surveyor Johnson was admitted into evidence.   However, the Francises did not enlist the services of a surveyor, or present any other testimony to contradict surveyor Johnson's work.

At the hearing, the Francises asserted that they had superior title by both prior litigation and by deed.^Double The Francises filed a survey in the record that was conducted for the purposes of another lawsuit in which they were previously involved.   That suit, however, did not involve the Halls or any other party to this action, nor was it even filed within the same county as the current action.   The Francises had also submitted various other documents into the record from the prior litigation, including what appears to be notes pertaining to the Francises' chain of title in that prior action, as well as medical records of Kernel Francis concerning an unrelated action before the Board of Worker's Claims.   The Francises also submitted several deeds.

During the hearing the Francises argued that they had superior title by deed because they possessed the “older deed” that went back to the “correct” land patent.^Double They also indicated that the agreement found in Deed Book 60 Page 383 ^Double in which H.H. Smith and Alex and Surrilda Francis, whom it appears are predecessors in title to the Francises' “grandpa,” and the Halls (although there is nothing of record tracing ownership back to a common source of title with the Halls), stipulated that one party possessed the property below a certain boundary line whereas the other possessed the property above a certain boundary line that voided the H.H. Smith deed.   The Francises therefore asserted that the Halls had “come over on the other property that was surveyed as Kernel's on a plat map that was used in another case.”   The Francises indicated that their explanation of the deeds and property descriptions “shows all of these deeds have been messed with.   Everybody had a deed to the same property except we have the oldest [deed].” ^Double The Francises presented no verifiable chain of title, affidavit of descent, or any other documentation tracing their purported ownership back to that 1936 agreement or the deed to which that agreement pertains.

The circuit court granted the Halls' motion for summary judgment, finding that the Francises had not offered “any material fact or law that would be sufficient to deny the [Halls] their Motion for Summary Judgment.”   The Francises filed a motion to alter, amend, or vacate in which they provided the circuit court with a written explanation of their purported chain of title for the first time, but did not include documentation of any of the deeds, leases, or affidavit of descent referred to therein.   The circuit court denied their motion.   The Francises now appeal.

It is a well-established principle that “a party asserting ownership of real estate must prevail on the strength of its own title rather than the weakness of his adversary's claim․”  Johnson v. Potter, 433 S.W.2d 358, 359 (Ky.1968).   It follows that the Francises simply cannot intervene in an action to quiet title and, without presenting evidence of any colorable claim in or commonality with the subject property, require the original parties to that action to defend their title or lose it.

Furthermore, “[i]t has long been a rule of this and other appellate courts that in order to secure a reversal of a judgment, it is incumbent upon the appellant to show error and to overcome the presumption that the trial court's decision was correct.”  Stuckert v. Keller, 430 S.W.2d 773, 777 (Ky.1968) (citing Sloan v. Jewel Ridge Coal Corp., 347 S.W.2d 504 (Ky.1961) and Potts v. Potts, 299 Ky. 216, 184 S.W.2d 987 (1945) (internal quotation marks omitted)).   The Francises have simply failed to make any such showing of error on appeal.   Therefore, we conclude that the circuit court correctly determined that the Halls were entitled to summary judgment.

Although given ample opportunity to do so, the Francises presented absolutely no competent evidence demonstrating that they had a colorable claim to any of the property for which the Halls sought to quiet title.   While the Francises submitted numerous deeds and other documentation, there is simply nothing explaining—whether via a documented chain of title, survey, or otherwise—the legal effect of the documents presented.   Although the Francises assert on appeal that the agreement found in Deed Book 60 Page 383 and the deed found in Deed Book 63 Page 531 ^Double supports their claim, these documents date back to the early 1900's and, aside from their own assertions, the Francises have not presented any evidence that the property lines as depicted in these deeds are contrary to what is represented in the Halls' deeds.   Therefore, as between the Halls and the Francises, there simply was no dispute or no genuine issue of material fact to be resolved.

The Francises next argue that the court erred when not permitting lay testimony that would have established the Francises' ownership to the property in question.   The Francises give no indication of whose testimony they offered to prove this assertion, and the Francises made no such offer of proof at the summary judgment hearing.   Thus, this argument has no merit.   We affirm.

ALL CONCUR.

MOORE, JUDGE:   Double