Preview
KENNETH D. SIMONCINI,
KERRI A. JOHNSON, ESQ.
ESQ. (#145586)
(#138344)
FILED
SAN MATEO COUNTY
PAUL J. MCDONALD, ESQ. (#142681)
SIMONCINI & ASSOCIATES
Attorneys At Law F 0 7 2017
1694 The Alameda
San Jose,
Telephone:
Facsimile:
California 95126-2219
(408) 280-7711
(408) 280~1330
1%" /
DEEW'CLERK
Attorneys for Defendants and Cross-Complainants:
CUNDIF F ELIZABETH F. CUNDIFF and KAREN
IN THE SUPERIOR COURT OF THE STATE OF
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CALIFORNIA
IN AND FOR THE COUNTY OF SAN MATEO
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I3 ANN F ORRISTER and CASEY Case No.:
S CHAUFLER,
CIV 512480
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Plaintiffs, DEFENDANTS/CROSS-
COMPLAINANTS ELIZABETH
v. CUNDIFF’S AND KAREN CUNDIFF’S
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OPPOSITION TO PLAINTIFF S AND
ELIZABETH F. CUNDIFF; KAREN N. CROSS~DEFENDANTS
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CUNDIFF ; ALL PERSONS
ANN
UNKNOWN, FORRISTER AND CASEY
CLAIMING ANY LEGAL OR SCHAUFLER
18 AND CROSS-
EQUITABLE RIGHT, TITLE, ESTATE, DEFENDANT MARK SHEPHERD,
19 LIEN OR INTEREST IN THE
IN DVIDUALLY AND AS
PROPERTY DESCRIBED IN THE
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ADMIN STRATOR, TRUSTEE AND
COMPLAINT ADVERSE TO
SUCCESSOR IN INTEREST OF THE
PLAINTIFF S’ S TITLE; and DOES —
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10,
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ESTATE AND TRUST OF MARIELLEN
SHEPHERD MOTION FOR DIRECTED
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Defendants.
VERDICT
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Trial Date: February 7, 2017
24 Time: 9:00 a.m.
Dept: 25
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Hon. Joseph C. Scott
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AND RELATED CROSS-ACTIONS ("cmmmo
28 , OPP
l opposition
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CUNDIFFS’ BRIEF OPPOSING MOTION FOR
DIRECTED VERDICT
I. INTRODUCTION
Cross-complainants Elizabeth and Karen Cundiff (Cundiffs) oppose plaintiff and cross-
defendants Ann Forrister and Casey Schaufler (plaintiffs) and cross-defendant Mark Shepherd,
individually and as Administrator, Trustee and Successor in interest to the Estate and Trust of
Mafiellen Shepherd (Shepherd) on the grounds that it is premature in that all the evidence has not
been presented; the Cundiffs have not completed their presentation of their evidence to the jury.
Furthermore, the evidence presented does not support a directed verdict.
II. LEGAL ARGUMENT
A. Restrictions on Granting
A court considering a motion for directed verdict applies the same test as when ruling on
a motion for non-suit. The motion is granted only when, disregarding conflicting evidence and
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giving the Cundiffs’ evidence all the value to which it is legally entitled, indulging in every
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17 legitimate inference which may be drawn from that evidence the result is a determination that
18 there is no evidence of substantiality to support a verdict in favor of the Cundiffs if such verdict
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were given (Estate of Lances (1932) 216 Cal. 397, 400).
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Here, the Cundiffs have presented substantial, competent, admissible and relevant
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evidence of their right to an easement and their causes of action against the Shepherds.
23 B. There Is No Claim for Easement By Necessity
24 Moving party misstates or misinterprets the Cundiffs’ allegations. Paragraph 32 of the
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SACC alleges the Subject Property (Area in Dispute) is necessary for the beneficial use and
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enjoyment of Cundiffs’ property in that it provides access to the garage. There are no allegations
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that the Cundiffs’ home is landlocked.
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CUNDlFFS’ BRIEFOPPOSING MOTION FOR DIRECTED VERDICT
C. Evidence of Implied Easement
Giving the Cundiffs’ evidence all the value to which it is legally entitled, indulging in
every legitimate inference which may be drawn from that evidence, there is an implied easement.
The elements of an implied easement are (1) common ownership of a parcel and a
transfer or conveyance of one parcel, or a portion of a parcel, to another; (2) an existing, obvious,
and apparently permanent use of the quasi-easement by the common owners; and (3) the easement
lS reasonably necessary to the use and benefit of the quasi-dominant tenement (Piazza v. Schaefer
1967) 255 Ca1.App.2d 328).
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Moving party argues there is no intent by Mr. Koepf and no intent by Shepherd. But this
12 argument fails. The court in Larsson v. Grabach (2004) 121 Ca1.App4th 1147, 1154 stated
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‘Implied easements are not based on the actual subjective intent, but rather on the parties’
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presumed objective intent as determined from the surrounding circumstances.”
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Necessity as used in this context does not mean that there must be a strict necessity, but
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17 merely that it is convenient to the use of the dominant tenement. An easement may be implied
18 even though it is not essential and even though there is another suitable access or substitute
19
‘Owsley v. Hammer (1951) 36 Cal.2d 710)
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Here, as in Mel, the surrounding circumstances support an implied easement in favor
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of the Cundiffs. The evidence is undisputed that there was common ownership of both 230
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23 Nevada Ave. and 234 Nevada Ave. by Mr. Harvey Koepf; that he divided the parcels; installed a
24 Mr.
gravel driveway connecting the garage at 230 Nevada Ave. to the street, paved the driveway.
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Koepf testified that the gravel driveway was essentially the same as the asphalt driveway that
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exists today. Mr. Koepf, used the disputed 41 square foot triangle as part of the driveway before
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he transferred 230 and 234 Nevada Ave. . The driveway is reasonably necessary to the use and
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CUNDIFFS’ BRIEF OPPOSING MOTION FOR DIRECTED VERDICT
benefit of 230 Nevada. The use of the area in dispute was obvious and apparently permanent in
that it was paved. There is no evidence of “overspray.”
D. Evidence of Use
Moving party argues the Shepherds did not drive or use the area in dispute from 2002 or
2003 until 2008. .Giving the Cundiffs’ evidence all the value to which it is legally entitled,
indulging in every legitimate inference which may be drawn from that evidence there is
substantial evidence that the Shepherds did use the area in dispute since 1999 when they bought
230 Nevada and through the testimony of neighbors who saw cars, boats, trailers and other items
on the area in dispute after 2002. None of these folks including Mr. Windell, Shepherds real
12 estate agent, saw any wooden bench or any evidence that the area in dispute was blocked off.
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Mr. Shepherd testified he never told anyone about the area in dispute and denied having any
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conversation with Mr. Klausner about the area in dispute.
The actual use requirement depends on the nature of the easement. It need not be used
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17 every day. The use is sufficient if itoccurs on those occasions when itis necessary for the
l8 convenience of the user (Scott v. Henry (1925) 196 Cal. 666). It is not necessary to use it every
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day, or once in every week, or twice a month; it depends on the need from time to time (Hesperia
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Land & Water Co. v. Rogers (1890) 83 Ca. 10).
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E. Evidence of Hostile, Adverse and Under Claim of Right
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23 The use is adverse if it is not in subordination to the rights of the owner of the servient
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tenement (234 Nevada) and is wrongful and open. To be hostile, an actual dispute between the
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parties is not necessary. It is sufficient if the use is adverse to the owner of the servient tenement
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(234 Nevada) and is made Without express or implied recognition of his rights. A user acts under
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CUNDIFFS’ BRIEF OPPOSING MOTION FOR DIRECTED VERDICT
a claim of right if he denies he is using the easement with the permission of the servient tenement
(Lord v. Sanchez (1955) 136 Cal.App.2d 704).
The evidence shows that the Shepherd used the area in dispute starting in 1999, without
the permission of Mr. Klausner the owner of 234 Nevada. Mark Shepherd testified he never
talked to Mr. Klausner. The Cundiffs also used the area without permission of anyone. The
claimant need not expressly inform the owner of 234 Nevada of his hostile and adverse use or
declare that his use is under a claim of right. Use of the property in a way which clearly displays
the user’s claim of right creates an inference and establishes a prima facie case that the use is
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under a claim of right, that is adverse and hostile to the owner of 234 Nevada, and the owner has
12 constructive notice of the adverse claim. For example the mere visible use and maintenance of
the property creates use an inference (CCP Sections 332, 324; Conaway v. Toogood (1916) 172
Cal. 706).
Moving party argues that Cundiffs did even know they were using the property at 234
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17 Nevada. Mark Shepherd, testified that prior to 2002 did not know he was using 234 Nevada.
18 But, although the initial use may have commenced under a mistake or trespass it may ripen into
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an easement if is subsequently used adversely, under a claim of right (without permission) and
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with the owner’s actual or constructive knowledge (Doolev’s Hardware Mart v. Trigg (1969) 270
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Cal.App.2d 337)
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23 Here, Mr. Klausner, the owner of 234 Nevada, had actual notice. He testified he knew
:
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the area in dispute encroached onto 234 and was being as a driveway when he bought the
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property in 1997. Commonly easements are used on a boundary line with the belief that the
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entire area is on the users property when in fact is overlaps onto the neighbor (Dooley’s
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Hardware Mart v. Trigg (1969) 270 Cal.App.2d 337). The court in Sorenson v. Costa (1948) 32
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CUNDIFFS’ BRIEF OPPOSING MOTION FOR DIRECTED VERDICT
Cal.2d 453 very clearly stated “[I]n Woodward V. Faris [citation omitted], this court expressly
held that if the claimant intends to claim the area occupied as his land, the mere fact that the
claim was based on mistake does not preclude him from acquiring title by adverse possession.
Since the Woodward case, it has been established that ‘Title by adverse possession may be
acquired through the possession or use commenced under mistake.’” 1d. at 460; quoting Park);
Powers 2 Cal.2d 590, 595; Lucas v. Provines, 130 Cal .270, 272.
F. Tax Payment
To establish adverse possession the claimant (Cundiffs) must prove that they had (1)
possession under claim of right or color of title; (2) actual, open and notorious occupation of the
premises constituting reasonable notice to the true owner; (3) possession which is adverse and
hostile to the true owner; (4) continuous possession for at least five years; and (5) payment of all
taxes assessed against the property during the five-year period. (Main St. Plaza V. Cartwright &
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16
M (2011) 194 Cal.App.4‘h 1044, 1054). The Cundiffs are entitled to take advantage of the
17 use made of the property in dispute by their predecessors in interest Shepherd (i.e. tacking, see
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18 Shonafelt v. Busath (1944) 66 Cal.App.2nd 5, 13-14).
The Cundiffs and their predecessor the Shepherds have paid all taxes on assessed on 230
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Nevada Ave. which includes the area in dispute. Under Proposition 13, adopted by voters in
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June of 1968, all real estate taxes are assessed based on the fair market value of the property at
23 the time of sale (Cal. Const.. art. XIII, Section 1 et seq.). Here, under Proposition 13, the real
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property taxes assessed and paid by the Cundiffs and their predecessors in interest (the
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Shepherds) for 230 Nevada, were based on the fair market value of the property, i.e. the purchase
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price paid by the Shepherds in 1999 and the purchase price paid by the on Cundiffs’ in 2008.
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The Cundiffs and Mark Shepherd testified that the purchase price included and the bought the
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CUNDIFFS’ BRIEF OPPOSING MOTION FOR DIRECTED VERDICT
paved driveway and area in dispute which services the two car garage on 230 Nevada (an
improvement).
Therefore based on Proposition 13 taxation scheme (Cal. Const. art. XIII, Section 1 et
seq.) Cundiffs and their predecessors the Shepherds paid real property taxes based on the
purchase price for 230 Nevada including the land and improvements (the paved driveway and
area in dispute) not on the record parcel.
G. Claims Against Shepherds
Moving party argue there is no evidence that the Shepherds failed to disclose that there
was a claim by any person to title or interest in the area in dispute. There is substantial evidence
to the contrary. Mark Shepherd testified that he knew in 2002 that there was a monument in the
driveway that showed the property line between 230 and 234 Nevada, that the area in dispute lies
on 234 Nevada; that he did not disclose this fact to the Cundiffs. The plaintiffs have made a
claim to this property.
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17 Moving party argues that they completed the Disclosure Statements completely and
18 accurately and that the disclosure statements are not part of the contract. The contract between
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the parties, Paragraph 8, states the Seller (Shepherds) shall duly complete and provide to Buyer
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(Cundiffs) the Disclosure Statements. There is substantial undisputed evidence that the
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Disclosure Statements completed by the Shepherds were not complete or accurate. There is no
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23 evidence that the Cundiffs purchased the property AS-IS. Regardless, even if there is an AS-IS
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provision the Shepherds still had an obligation to give the Cundiffs information bearing on value
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and desirability of the property including completed Disclosure statements.
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CONCLUSION
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CUNDIFFS’ BRIEF OPPOSING MOTION FOR DIRECTED VERDICT
Based on the forgoing, the fact that all the evidence has not been presented; the Cundiffs
have not completed their presentation of their evidence to the jury and giving the Cundiffs’
evidence all the value to which it is legally entitled, indulging in every legitimate inference
which may be drawn from that evidence the motion for directed verdict should be denied in its
entirety.
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DATED: February 6, 2017
/ ../"-7
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SIMONCINI & ASSOCIATES
,
r
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KENNETH D. SIMONCINI
ll KERRI A. JOHNSON
PAUL J. MCDONALD
12 Attorneys for Defendants and Cross—
Complainants
l3 ELIZABETH F. CUNDIFF and KAREN
CUNDIFF
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CUNDIFFS’ BRIEF OPPOSING MOTION FOR DIRECTED VERDICT
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KENNETH D. SIMONCINI, KERRI A. JOHNSON, ESQ. ESQ. (#145586) (#138344) FILED SAN MATEO COUNTY PAUL J. MCDONALD, ESQ. (#142681) SIMONCINI & ASSOCIATES Attorneys At Law F 0 7 2017 1694 The Alameda San Jose, Telephone: Facsimile: California 95126-2219 (408) 280-7711 (408) 280~1330 1%" / DEEW'CLERK Attorneys for Defendants and Cross-Complainants: CUNDIF F ELIZABETH F. CUNDIFF and KAREN IN THE SUPERIOR COURT OF THE STATE OF 11 CALIFORNIA IN AND FOR THE COUNTY OF SAN MATEO 12 I3 ANN F ORRISTER and CASEY Case No.: S CHAUFLER, CIV 512480 l4 Plaintiffs, DEFENDANTS/CROSS- COMPLAINANTS ELIZABETH v. CUNDIFF’S AND KAREN CUNDIFF’S 16 OPPOSITION TO PLAINTIFF S AND ELIZABETH F. CUNDIFF; KAREN N. CROSS~DEFENDANTS 17 CUNDIFF ; ALL PERSONS ANN UNKNOWN, FORRISTER AND CASEY CLAIMING ANY LEGAL OR SCHAUFLER 18 AND CROSS- EQUITABLE RIGHT, TITLE, ESTATE, DEFENDANT MARK SHEPHERD, 19 LIEN OR INTEREST IN THE IN DVIDUALLY AND AS PROPERTY DESCRIBED IN THE 20 ADMIN STRATOR, TRUSTEE AND COMPLAINT ADVERSE TO SUCCESSOR IN INTEREST OF THE PLAINTIFF S’ S TITLE; and DOES — 21 10, 1 ESTATE AND TRUST OF MARIELLEN SHEPHERD MOTION FOR DIRECTED 22 Defendants. VERDICT 23 Trial Date: February 7, 2017 24 Time: 9:00 a.m. Dept: 25 25 26 Hon. Joseph C. Scott 27 AND RELATED CROSS-ACTIONS ("cmmmo 28 , OPP l opposition . 1111111lllllllllllllllll CUNDIFFS’ BRIEF OPPOSING MOTION FOR DIRECTED VERDICT I. INTRODUCTION Cross-complainants Elizabeth and Karen Cundiff (Cundiffs) oppose plaintiff and cross- defendants Ann Forrister and Casey Schaufler (plaintiffs) and cross-defendant Mark Shepherd, individually and as Administrator, Trustee and Successor in interest to the Estate and Trust of Mafiellen Shepherd (Shepherd) on the grounds that it is premature in that all the evidence has not been presented; the Cundiffs have not completed their presentation of their evidence to the jury. Furthermore, the evidence presented does not support a directed verdict. II. LEGAL ARGUMENT A. Restrictions on Granting A court considering a motion for directed verdict applies the same test as when ruling on a motion for non-suit. The motion is granted only when, disregarding conflicting evidence and 15 giving the Cundiffs’ evidence all the value to which it is legally entitled, indulging in every 16 17 legitimate inference which may be drawn from that evidence the result is a determination that 18 there is no evidence of substantiality to support a verdict in favor of the Cundiffs if such verdict 19 were given (Estate of Lances (1932) 216 Cal. 397, 400). 20 Here, the Cundiffs have presented substantial, competent, admissible and relevant 21 22 evidence of their right to an easement and their causes of action against the Shepherds. 23 B. There Is No Claim for Easement By Necessity 24 Moving party misstates or misinterprets the Cundiffs’ allegations. Paragraph 32 of the 25 SACC alleges the Subject Property (Area in Dispute) is necessary for the beneficial use and 26 enjoyment of Cundiffs’ property in that it provides access to the garage. There are no allegations 27 28 that the Cundiffs’ home is landlocked. 2 CUNDlFFS’ BRIEFOPPOSING MOTION FOR DIRECTED VERDICT C. Evidence of Implied Easement Giving the Cundiffs’ evidence all the value to which it is legally entitled, indulging in every legitimate inference which may be drawn from that evidence, there is an implied easement. The elements of an implied easement are (1) common ownership of a parcel and a transfer or conveyance of one parcel, or a portion of a parcel, to another; (2) an existing, obvious, and apparently permanent use of the quasi-easement by the common owners; and (3) the easement lS reasonably necessary to the use and benefit of the quasi-dominant tenement (Piazza v. Schaefer 1967) 255 Ca1.App.2d 328). 10 11 Moving party argues there is no intent by Mr. Koepf and no intent by Shepherd. But this 12 argument fails. The court in Larsson v. Grabach (2004) 121 Ca1.App4th 1147, 1154 stated 13 ‘Implied easements are not based on the actual subjective intent, but rather on the parties’ 14 presumed objective intent as determined from the surrounding circumstances.” 15 Necessity as used in this context does not mean that there must be a strict necessity, but 16 17 merely that it is convenient to the use of the dominant tenement. An easement may be implied 18 even though it is not essential and even though there is another suitable access or substitute 19 ‘Owsley v. Hammer (1951) 36 Cal.2d 710) 20 Here, as in Mel, the surrounding circumstances support an implied easement in favor 21 of the Cundiffs. The evidence is undisputed that there was common ownership of both 230 22 23 Nevada Ave. and 234 Nevada Ave. by Mr. Harvey Koepf; that he divided the parcels; installed a 24 Mr. gravel driveway connecting the garage at 230 Nevada Ave. to the street, paved the driveway. 25 Koepf testified that the gravel driveway was essentially the same as the asphalt driveway that 26 exists today. Mr. Koepf, used the disputed 41 square foot triangle as part of the driveway before 27 28 he transferred 230 and 234 Nevada Ave. . The driveway is reasonably necessary to the use and 3 CUNDIFFS’ BRIEF OPPOSING MOTION FOR DIRECTED VERDICT benefit of 230 Nevada. The use of the area in dispute was obvious and apparently permanent in that it was paved. There is no evidence of “overspray.” D. Evidence of Use Moving party argues the Shepherds did not drive or use the area in dispute from 2002 or 2003 until 2008. .Giving the Cundiffs’ evidence all the value to which it is legally entitled, indulging in every legitimate inference which may be drawn from that evidence there is substantial evidence that the Shepherds did use the area in dispute since 1999 when they bought 230 Nevada and through the testimony of neighbors who saw cars, boats, trailers and other items on the area in dispute after 2002. None of these folks including Mr. Windell, Shepherds real 12 estate agent, saw any wooden bench or any evidence that the area in dispute was blocked off. 13 Mr. Shepherd testified he never told anyone about the area in dispute and denied having any 14 conversation with Mr. Klausner about the area in dispute. The actual use requirement depends on the nature of the easement. It need not be used 16 17 every day. The use is sufficient if itoccurs on those occasions when itis necessary for the l8 convenience of the user (Scott v. Henry (1925) 196 Cal. 666). It is not necessary to use it every 19 day, or once in every week, or twice a month; it depends on the need from time to time (Hesperia 20 Land & Water Co. v. Rogers (1890) 83 Ca. 10). 21 E. Evidence of Hostile, Adverse and Under Claim of Right 22 23 The use is adverse if it is not in subordination to the rights of the owner of the servient 24 tenement (234 Nevada) and is wrongful and open. To be hostile, an actual dispute between the 25 parties is not necessary. It is sufficient if the use is adverse to the owner of the servient tenement 26 (234 Nevada) and is made Without express or implied recognition of his rights. A user acts under 27 28 4 CUNDIFFS’ BRIEF OPPOSING MOTION FOR DIRECTED VERDICT a claim of right if he denies he is using the easement with the permission of the servient tenement (Lord v. Sanchez (1955) 136 Cal.App.2d 704). The evidence shows that the Shepherd used the area in dispute starting in 1999, without the permission of Mr. Klausner the owner of 234 Nevada. Mark Shepherd testified he never talked to Mr. Klausner. The Cundiffs also used the area without permission of anyone. The claimant need not expressly inform the owner of 234 Nevada of his hostile and adverse use or declare that his use is under a claim of right. Use of the property in a way which clearly displays the user’s claim of right creates an inference and establishes a prima facie case that the use is 10 11 under a claim of right, that is adverse and hostile to the owner of 234 Nevada, and the owner has 12 constructive notice of the adverse claim. For example the mere visible use and maintenance of the property creates use an inference (CCP Sections 332, 324; Conaway v. Toogood (1916) 172 Cal. 706). Moving party argues that Cundiffs did even know they were using the property at 234 16 17 Nevada. Mark Shepherd, testified that prior to 2002 did not know he was using 234 Nevada. 18 But, although the initial use may have commenced under a mistake or trespass it may ripen into 19 an easement if is subsequently used adversely, under a claim of right (without permission) and 20 with the owner’s actual or constructive knowledge (Doolev’s Hardware Mart v. Trigg (1969) 270 21 Cal.App.2d 337) 22 23 Here, Mr. Klausner, the owner of 234 Nevada, had actual notice. He testified he knew : 24 the area in dispute encroached onto 234 and was being as a driveway when he bought the 25 property in 1997. Commonly easements are used on a boundary line with the belief that the 26 entire area is on the users property when in fact is overlaps onto the neighbor (Dooley’s 27 28 Hardware Mart v. Trigg (1969) 270 Cal.App.2d 337). The court in Sorenson v. Costa (1948) 32 5 CUNDIFFS’ BRIEF OPPOSING MOTION FOR DIRECTED VERDICT Cal.2d 453 very clearly stated “[I]n Woodward V. Faris [citation omitted], this court expressly held that if the claimant intends to claim the area occupied as his land, the mere fact that the claim was based on mistake does not preclude him from acquiring title by adverse possession. Since the Woodward case, it has been established that ‘Title by adverse possession may be acquired through the possession or use commenced under mistake.’” 1d. at 460; quoting Park); Powers 2 Cal.2d 590, 595; Lucas v. Provines, 130 Cal .270, 272. F. Tax Payment To establish adverse possession the claimant (Cundiffs) must prove that they had (1) possession under claim of right or color of title; (2) actual, open and notorious occupation of the premises constituting reasonable notice to the true owner; (3) possession which is adverse and hostile to the true owner; (4) continuous possession for at least five years; and (5) payment of all taxes assessed against the property during the five-year period. (Main St. Plaza V. Cartwright & 15 16 M (2011) 194 Cal.App.4‘h 1044, 1054). The Cundiffs are entitled to take advantage of the 17 use made of the property in dispute by their predecessors in interest Shepherd (i.e. tacking, see I 18 Shonafelt v. Busath (1944) 66 Cal.App.2nd 5, 13-14). The Cundiffs and their predecessor the Shepherds have paid all taxes on assessed on 230 20 Nevada Ave. which includes the area in dispute. Under Proposition 13, adopted by voters in 21 22 June of 1968, all real estate taxes are assessed based on the fair market value of the property at 23 the time of sale (Cal. Const.. art. XIII, Section 1 et seq.). Here, under Proposition 13, the real 24 property taxes assessed and paid by the Cundiffs and their predecessors in interest (the 25 Shepherds) for 230 Nevada, were based on the fair market value of the property, i.e. the purchase 26 price paid by the Shepherds in 1999 and the purchase price paid by the on Cundiffs’ in 2008. 27 28 The Cundiffs and Mark Shepherd testified that the purchase price included and the bought the 6 CUNDIFFS’ BRIEF OPPOSING MOTION FOR DIRECTED VERDICT paved driveway and area in dispute which services the two car garage on 230 Nevada (an improvement). Therefore based on Proposition 13 taxation scheme (Cal. Const. art. XIII, Section 1 et seq.) Cundiffs and their predecessors the Shepherds paid real property taxes based on the purchase price for 230 Nevada including the land and improvements (the paved driveway and area in dispute) not on the record parcel. G. Claims Against Shepherds Moving party argue there is no evidence that the Shepherds failed to disclose that there was a claim by any person to title or interest in the area in dispute. There is substantial evidence to the contrary. Mark Shepherd testified that he knew in 2002 that there was a monument in the driveway that showed the property line between 230 and 234 Nevada, that the area in dispute lies on 234 Nevada; that he did not disclose this fact to the Cundiffs. The plaintiffs have made a claim to this property. 16 17 Moving party argues that they completed the Disclosure Statements completely and 18 accurately and that the disclosure statements are not part of the contract. The contract between 19 the parties, Paragraph 8, states the Seller (Shepherds) shall duly complete and provide to Buyer 20 (Cundiffs) the Disclosure Statements. There is substantial undisputed evidence that the 21 Disclosure Statements completed by the Shepherds were not complete or accurate. There is no 22 23 evidence that the Cundiffs purchased the property AS-IS. Regardless, even if there is an AS-IS 24 provision the Shepherds still had an obligation to give the Cundiffs information bearing on value 25 and desirability of the property including completed Disclosure statements. 26 CONCLUSION 27 28 7 CUNDIFFS’ BRIEF OPPOSING MOTION FOR DIRECTED VERDICT Based on the forgoing, the fact that all the evidence has not been presented; the Cundiffs have not completed their presentation of their evidence to the jury and giving the Cundiffs’ evidence all the value to which it is legally entitled, indulging in every legitimate inference which may be drawn from that evidence the motion for directed verdict should be denied in its entirety. 10 DATED: February 6, 2017 / ../"-7 / SIMONCINI & ASSOCIATES , r ' KENNETH D. SIMONCINI ll KERRI A. JOHNSON PAUL J. MCDONALD 12 Attorneys for Defendants and Cross— Complainants l3 ELIZABETH F. CUNDIFF and KAREN CUNDIFF I4 15 16 17 18 20 21 22 23 24 25 26 27 28 8 CUNDIFFS’ BRIEF OPPOSING MOTION FOR DIRECTED VERDICT