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1. Subject only to exceptions set out by statute or court rule, a mediator may not testify about communications made during mediation when one of the parties to that mediation objects to the testimony. Accordingly, a mediator may not testify about whether parties reached an oral settlement in mediation over the objection of a party.
2. Where parties agree to fix a boundary line between their properties and then acquiesce to follow the agreed-upon line, it is considered the true boundary line between the properties.
3. A deed may be reformed to reflect a boundary-line agreement even after the property has been sold to a third party so long as the party against which the agreement is enforced is not a bona fide purchaser without actual or constructive notice of the agreed boundary line.
4. In connection with the sale of real estate, if a person has knowledge of facts that a prudent person would investigate further, the person is deemed to have constructive notice of the facts that would have been revealed by that investigation.
Constance L. Shidler, of Smithyman & Zakoura, Chartered, of Overland Park, for appellants.
Carrie E. Josserand, of Lathrop & Gage LLP, of Overland Park, for appellees Benjamin and Linda Piccirillo.
Before McANANY, P.J., HILL and LEBEN, JJ.
This case arises out of the sale of real estate in Johnson County— parcels of land originally owned by Glenn and Vanilda Hammonds through some family trusts. The Hammondses had a house that sat mostly on one lot but overlapped a few feet over the lot line of another parcel, Lot 52. The Hammondses sold Lot 52 to Benjamin and Linda Piccirillo, who built a house on Lot 52. The Piccirillos then sold Lot 52 to Manual and Lois Baraban.
Disputes arose once the Barabans discovered that the Hammondses' house at the border of Lot 52 actually sat partially on that lot; the Barabans demanded removal of the house, and eventually the Barabans sued the Hammondses and the Piccirillos. Our appeal generally resolves two overriding issues.
First, the district court enforced an alleged settlement agreement between the Barabans and the Piccirillos, ending the Piccirillos' involvement in the suit— an order that came only after the court heard testimony from a mediator about what the parties had agreed to in mediation. But K.S.A. 2012 Supp. 60-452a gives all parties involved in mediation a privilege to prevent anyone from disclosing " any communication" made during mediation, and the Barabans objected to the mediator's testimony at the hearing. The district court should not have allowed that testimony, and without it there's no evidence upon which the alleged settlement can be enforced. We therefore reverse the district court's order enforcing the settlement.
Second, the district court ruled after a contested trial that the Barabans' deed to Lot 52 should be reformed, or modified, to show that the portion on which the Hammondses' house sits belongs to the neighboring lot. This was based on an agreement between the Hammondses and the Piccirillos about the lot's border and upon the Barabans' ability to have detected that the house overlapped the boundary line. There is sufficient evidence to support the district court's ruling on both points, and we therefore affirm its judgment as between the Barabans and the Hammondses.
Before going into further detail about the issues in this appeal, we will first set out the factual and procedural background of the case. We will then discuss the issues raised by the parties on appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2003, Glenn and Vanilda Hammonds, as trustees of the Hammonds Family
Living Trust, bought several lots in Spring Hill. One of the lots was Lot 52, and there was an existing house located on the lot immediately to the north.
Our lawsuit generally concerns questions that have arisen because that house actually extends a few feet onto Lot 52, and the lot was later sold. The primary factual question is whether the sale of Lot 52 was intended to include the portion already occupied by the house.
In June 2003, Glenn Hammonds entered into a contract to sell Lot 52 to Benjamin Piccirillo, a builder. They intended to exclude the portion of land containing the house from the sale and to create a larger easement across the north end of Lot 52 to provide a buffer between the existing house and any new structures that might be placed on Lot 52. To that end, Benjamin Piccirillo and Glenn Hammonds signed an agreement on July 30, 2003, for an " Easement for Dwelling Placement for 20715 Lone Elm Road," which is Lot 52. But neither Hammonds nor Piccirillo filed the agreement for an easement with the local register of deeds.
The next day, the Hammondses completed the sale of Lot 52 to Benjamin and Linda Piccirillo. The warranty deed, which was recorded with the register of deeds, didn't reflect that the portion of land containing the existing house was excluded from the sale of Lot 52, and the deed didn't mention an easement. The Hammondses retained the neighboring land and rented the existing house for $900 a month.
Benjamin Piccirillo then proceeded to build a house on Lot 52. He obtained a zoning variance to install a septic system, obtained a building permit, and built the house.
In May 2005, the Piccirillos sold the property to Manual and Lois Baraban. The warranty deed indicated that all of Lot 52 (with a legal description including the area on which the Hammondses' house partially sits) was sold. The deed didn't mention either the Hammondses' house or an easement. Manual Baraban testified that, before he bought the property, he searched the public record and didn't find a recorded easement for the house or a reference to any encroachment onto Lot 52.
But the Barabans eventually discovered that the Hammondses' house stretched over the Lot 52 property line. In March 2006, the Barabans sent a letter to Glenn Hammonds alleging that the Hammondses' house was on the Barabans' property and threatening legal action if the house wasn't removed. In June 2007, the Barabans filed suit for quiet title, or establishment of ownership, against the Piccirillos and the Hammondses, asking for a court determination that the Barabans own the entirety of Lot 52— including the portion on which the Hammondses' house sits. Later, the Barabans filed an amended petition that included claims for ejectment, trespass, fraud, and nuisance related to the sale of the lot and to property alterations the Hammondses had made around their house.
In February 2008, Manual Baraban and the Piccirillos attended mediation, although Manual's wife, Lois, didn't attend. The mediation session was facilitated by a retired district judge. No written or signed settlement agreement was adopted at the mediation, but the next day, the mediator emailed terms of an agreement— thought by the mediator to have been orally agreed upon at the mediation— to attorneys for both parties.
The Piccirillos filed a motion to enforce the settlement agreement as described in the mediator's email. At a hearing on the motion, the mediator testified that the parties had reached an agreement at the mediation, with the terms as set out in his email. Lois Baraban ...