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Corrigan TLP, LLC v. Boerger

United States District Court, E.D. Kentucky, Northern Division, Ashland

March 24, 2014

CHRIS H. BOERGER, Defendant.


HENRY R. WHILHOIT, Jr., District Judge.

This matter is before the Court upon Plaintiff Corrigan TLP, LLC's Motion for Partial Summary Judgment [Docket No. 36] and Defendant Chris H. Boerger's Motion for Summary Judgment [Docket No. 48]. The motions have been fully briefed by the parties [Docket Nos. 50 and 51]. For the reasons set forth herein, the Court finds that Corrigan TLP, LLC is entitled to partial summary judgment and Defendant Chris H. Boerger is not entitled to summary judgment.


This action involves a dispute over ownership of about 340 acres of remote, wild timber land at the head of Hamilton Branch in Lewis County, Kentucky.

Corrigan TLP, LLC ("Corrigan") purchased thousands of acres of land located in several Kentucky counties, including Lewis County, on December 21, 2007, by a deed of record in Deed Book 220, Page 491, in the Lewis County Clerk's Office ("Corrigan Deed"). [Docket No. 37-13 and 15, pages 578-796, Special Warranty Deed between Boone Parklands, LLC and Corrigan TLP, LLC, stamped Corrigan Chain]. The Corrigan Deed describes many distinct tracts of real property, including the one at issue in this civil action. The relevant property is in Lewis County and is referred to as Tract 4 of the "Huber Parcels." [ Id. at pages 694-698]. This tract, commonly referred to as "Huber Tract 4, " describes approximately 5, 673 acres of land and is the tract at issue in this action and fully encompasses the 340 acres claimed by Boerger.

Boerger acquired title to the subject land by deed dated April 3, 2009 and of record in Deed Book 225, page 32, in the Lewis County Clerk's Office ("Boerger Deed"). The property was conveyed from Fite Logging, LLC, which is a corporate alter ego of Boerger's ex-wife Holly Fite, and the deed recited a purchase price of $125, 000.00 [Docket No. 36-3]. The Boerger Deed describes 340.255 acres of land using a description prepared by Michael D. Ruggles, a surveyor, in April of 2008.

There is no dispute that Corrigan's Deed fully encompasses all of the property described in Boerger's Deed. Indeed, included in the description of the property in the Boerger Deed is the note, "[d]uring the course of this survey, it was discovered that the Corrigan TLP, LLC, deed, D.B. 220, Pg. 491, takes in the same area as the Fite Logging, LLC deed, D.B. 221 Pg. 574." [Docket No. 36-3]. Mike Ruggles, testified that in the course of his survey for Boerger, he reviewed and plotted out the boundaries of Huber Tract 4 from the Corrigan Deed and concluded that the Corrigan Deed called for the same property he surveyed and described in Boerger's Deed. [Deposition of Mike Ruggles, Docket No. 36-5, pp. 45-47, 53-56.]

There can also be no dispute that Boerger knew that title to the property was subject to dispute before he acquired it. Indeed, prior to his purchase, his surveyor, Mr. Ruggles, required him to sign a letter acknowledging the clouded title:

[P]lease understand and be advised that the property Fite Logging, LLC is claiming under D.B. 221 Pg. 574, is also in part or whole claimed by Corrigan, TLP, LLC, D.B. 22 Pg. 491 and under this deed, it is clear that their deed takes in the same property to which Fite Logging LLC is claiming. Signing this document states that you are aware, understand and do acknowledge that their(sic) is a problem between the 2 deeds and that this Surveyor makes no guarantees to the 340.255 acre survey that I have performed.

[Letter from Mike Ruggles, Surveyor, to Chris Boerger, Defendant, dated February 17, 2009, Docket No. 36-7 and Ruggles Depo., Docket No. 36-5, pp. 77-78.] Boerger acknowledged his signature on the letter and testified that he was aware that Corrigan's predecessors in title disputed his predecessors' claim to ownership of the property described in his deed. [Deposition of Chris Boerger, Docket No. 36-4, pp. 103 and 75-76].

Due to the disputed ownership of the area claimed by both the Boerger's Deed and described in Huber Tract 4 of Corrigan's Deed, Corrigan filed this action asserting the following claims: (1) a declaration of rights with respect to ownership of the disputed area; (2) a claim to quiet title to the disputed area in Corrigan; (3) slander of title; and (4) trespass. [Complaint, Docket No.1, pp. 12-14.] Boerger filed a counterclaim asserting ownership of the property and requesting that the Court quiet title in him. He asserts that the predecessors to his deed adversely possessed the property at some point before 1957.

Corrigan seeks judgment in its favor as to its claim for declaration of rights with respect to ownership of the disputed area and to quiet title to the disputed area in Corrigan. Boerger seeks summary judgment in his favor as to his claim of adverse possession.


Summary judgment is appropriate where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56©. The moving party "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The Court views all evidence in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient [to defeat a motion for ...

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