Date: 01-31-2013

Case Style: Bob McGinnis v. Chris Barrett

Case Number: CJ-2010-1133

Judge: Tracy Schumacher

Court: District Court, Cleveland County, Oklahoma

Plaintiff's Attorney: John Graves

Defendant's Attorney: Jessica Underwood

Description: Bob McGinnis and Christine McGinnis sued Chris Barrett and Melissa Barrett claiming:

1. Plaintiffs are residents of Cleveland County, State of Oklahoma. Plaintiffs own in fee simple certain real property described as follows: 8/2 of the SW/4 of the NW/4 of Sec. 1OT 9North-RlEast.

2. Defendants are residents of Cleveland County, State of Oklahoma.
Trespass

3. Defendants have intentionally and knowingly constructed fences that encroach upon the above-described real property owned by Plaintiffs.

4. Defendants have been requested to remove and remedy this encroachment and have refused.

5. Plaintiffs pray for a judgment of equitable relief and monetary damages in an amount in excess of $10,000.00 be entered as a result of this encroachment.
Nuisance

6. Plaintiffs incorporate paragraphs 1— 5 as if fully set forth herein.

7. Defendants have prevented Plaintiffs from full and peaceable use and enjoyment of their real property.

8. The conduct of the Defendants has resulted in annoyance, inconvenience, and other damages.

9. Plaintiffs pray that, upon hearing Plaintiffs claims, judgment be entered against Defendants in an amount in excess of $10,000.00.

Attorney Fees and Costs

10. As a result of Defendants’ conduct, Plaintiffs have been forced to prosecute the instant action.

11. Pursuant to 12 O.S. §940, Plaintiffs request that the Court enter a judgment against Defendants and in favor of Plaintiff for attorney fees and costs due to the negligent or willful conduct of the defendants that has resulted in damage to Plaintiffs property.

WHEREFORE, Plaintiffs request that this Court, after hearing Plaintiffs cause of action, enter judgment against the Defendants jointly and severally and enjoins them from future encroachment upon the Plaintiffs’ property, orders Defendants to remove present encroachments upon Plaintiffs’ property, enters a judgment in favor
of Plaintiffs and against Defendants in an amount in excess of $10,000.00 as a result of their trespass, that the Plaintiffs be awarded an amount in excess of $10,000.00 as a result of the nuisance created and maintained by Defendants upon Plaintiffs property, and for attorney fees and costs incurred by Plaintiffs as a result of the prosecution of this action, and all other equitable or legal relief to which the Court finds Plaintiffs entitled.


The defendant appeared and answered as follows:

1. Paragraph 1 is admitted.

2. Paragraph 2 is admitted.

Trespass

3. Paragraph 3 is denied in whole. The fence that is the subject of Plaintiff’s petition has been a notable structure
on the property since on or before August 20, 1968. Defendants Barrett made repairs to the existing fence after Plaintiff McGinnis unilatenlly and wrongfully destroyed a portion of it to support the claim of an imagined property line and convert a settled appurtenance of over four decades for his own use.

4. Paragraph 4 is admitted. The Plaintiff has requested that the fence be moved to reflect what he has recently come to believe is the correct boundary line. The Defendants have refused to move the long established and acknowledged boundary line to their property under the doctrine of adverse possession.

5. Paragraph 5 is denied. The Plaintiffs are not entitled to either equitable relief or monetary damages.
Nuisance

6. Paragraph 6 is neither admitted nor denied.

7. Paragraph 7 is denied. Title to the property in question has been acquired by the Defendants’ through adverse possession and succession of right in themselves as well as laches, succession of laches and expiration of the statute in the Plaintiff decades ago.

8. Paragraph 8 is denied.

9. Paragraph 9 is denied.

10. Paragraph 10 is denied.

11. Paragraph 11 is denied.

WhEREFORE, the Defendants above named answer the Plaintiff’s Petition as stated and alleged above. The Defendants further pray for a judgment in their favor and reserve any and all affirmative defenses that may become relevant later during these proceedings.

COUNTER CLAIMS

WHEREFORE the Defendants Chris and Melissa Barrett having Answered the Plaintiff’s Petition as above do in support of their Counter Claim allege and state as follows:
Parties and Jurisdiction

1. That both the above listed Plaintiffs, Bob and Christine McGinnis, and the Defendant Counter Claimants, Chris and Melissa Barrett, reside in Cleveland County Oklahoma.

2. That the property at issue is located in Cleveland County Oklahoma.

3. That jurisdiction and venue are proper in Cleveland County Oklahoma.
Trespass

1. That the above listed Plaintiff’s did wrongfully trespass on the property of Chris and Melissa Barrett by tearing down a long standing fence and destroying three native, producing Pecan trees. Further that the Plaintiff, Bob McGinnis, did direct and cause a third party to drive through Chris and Melissa Barrett’s property on commercial industrial construction equipment, destroying not only their fence, but also portions of their yard.

2. That the systematic entry upon the Defendants parcel to destroy or cause to be destroyed improvements and existing attachments to the property including but not limited to portions of the fence were unilateral, deliberate and malicious and without notice to Defendants Barrett.

3. That the destroyed improvements and existing attachments have a determinable value which can be calculated in the cost of their replacement.

Quiet Title

That Chris and Melissa Barrett have owned the real property situated at, The Northeast Quarter of the
Southwest Quarter of the Southwest Quarter of Section Ten (10), Township Nine (9) North, Range One (1) East of the Indian Meridian, Cleveland County, Oklahoma, since April 28,2000. Further that prior to the Barrett’s ownership of the property, it was held by Lee Wayne Todd who owned the property from August 20, 1968 until April 28, 2000.

2. That during the entire time Mr. Todd owned the property, the defendant Barrett’s succession to his interest by legal recorded purchase to the present, the property line between Plaintiff and Defendants parcels has been consistently and continuously recognized as demarcated by the fence dividing the McGinnis and the Barrett property.

3. That in 2007 Mr. McGinnis became aware through a survey that the long acknowledged and mutually maintained fence/boundary might be an inaccurate reflection of the original plat. Further that upon such suspicion the Plaintiff began to systematically enter upon the Defendants parcel to destroy or cause to be destroyed improvements and existing attachments to the property including but not limited to portions of the fence and did so unilaterally, deliberately and maliciously without notice to Defendants Barrett in an effort to fraudulent eradicate evidence of the adverse open and notorious possession of the appurtenance to their property.

WHEREFORE the Defendants pray that this Court will restore them to their position prior to the trespass of the Plaintiff and in title quiet them in the subject property and other such relief and support that the Court deems just and proper including the expenses and attorney’s fees incurred as a result of this action.

Outcome: Comes now the parties hereto by and through their representative counsel of record and present for entry the mediated settlement agreement attached hereto, reached between the parties at the mediation held on February 2, 2012 . fri consideration of the mediated resolution of this matter, the court enters as its final order disposing of all matters at issue in this litigation its terms recited, at the request of the parties including but not limited to the following:

1. Plaintiff shall pay to defendants the total amount of $250.00.

2. The parties agree that the mutual boundary line between the parties properties shall from the date of the agreed settlement, be a straight line between the existing survey corner of the Northwest of the Defendants’ property and a point five feet North of the surveyed Northeast corner of Defendant’s property.

3. Parties agree not to trespass, harass or interfere with one another. Because the damage that may result from such conduct is speculative, liquidated damages in the amount of one thousand dollars $1000.00 shall be granted any party suffering such an instance of trespass harassment or interference inclusive of the fees and costs in bringing such action to enforce this courts order. Installation of a fence in compliance with the mediated settlement agreement shall not constitute trespass harassment or interference.

4. Each party is to bear their own attorneys fees and costs.

Plaintiff's Experts:

Defendant's Experts:

Comments: