RENDERED: MARCH 1, 2024; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0242-MR

SCOTT HILL AND LORRIE HILL APPELLANTS 

v. 

APPEAL FROM KENTON CIRCUIT COURT

HONORABLE KATHLEEN LAPE, JUDGE

ACTION NO. 18-CI-01603

MARC TISCHBEIN; DAVID A. 

KLINGSHIRN, AS TRUSTEE OF THE 

DAVID A. KLINGSHIRN TRUST; 

DAVID A. KLINGSHIRN, 

INDIVIDUALLY; GENERAL 

ELECTRIC CREDIT UNION; AND 

PEGGY RANKIN APPELLEES 

OPINION

REVERSING AND REMANDING

**   **  **

BEFORE: CETRULO, JONES, AND TAYLOR, JUDGES.

TAYLOR, JUDGE: Scott Hill and Lorrie Hill bring this appeal from a February 1, 

2022, Order Granting Summary Judgment on Marc Tischbein and Peggy Rankin’s 

claims for adverse possession and prescriptive easement as to a garage and 

driveway/gate located on the Hills’ property. We reverse and remand.
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The relevant history of the real property at issue in this appeal, 420-

422 Riverside Drive and 109 Shelby Street, in Covington, Kentucky, spans more 

than three decades. Thus, we will recite only the facts germane to disposition of 

this appeal. 

In 1986, David A. Klingshirn acquired title to 420-422 Riverside 

Drive (hereinafter referred to as the Main House). Klingshirn partnered with Marc 

Tischbein to assist in financing the purchase and renovation of the Main House 

property. Klingshirn and Tischbein planned to renovate the property and 

eventually sell it for profit. It is undisputed that Tischbein contributed to the costs

associated with the purchase, renovation, and upkeep of the Main House property

despite his name not appearing on the deed and there being no written agreement. 

Both Klingshirn and Tischbein moved into the Main House shortly after the 

purchase and proceeded with the renovation. 

In early 1993, Klingshirn and Tischbein had the opportunity to 

purchase real property located at 109 Shelby Street (hereinafter referred to as the 

Coach House). The Coach House property directly abutted the Main House 

property to the rear.

1

 Klingshirn, Tischbein, and Tischbein’s then-fiancée, Peggy 

1 Apparently, the two parcels, 420-422 Riverside Drive (the Main House) and 109 Shelby Street 

(the Coach House), were originally one parcel. The two parcels were divided well before David 

A. Klingshirn, Marc Tischbein, or Peggy Rankin became involved with either property.
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Rankin, apparently agreed that the Main House property would be more valuable if 

they also owned the Coach House. So, by deed dated April 30, 1993, Klingshirn, 

Tischbein, and Rankin acquired title to the Coach House. Thereafter, the three 

parties jointly financed a renovation of the Coach House, an update of the Main 

House, construction of two garages, and installation of a driveway/gate. In 1994, 

Tischbein and Rankin married and lived in the Main House; Klingshirn moved into 

the Coach House.

Shortly after the purchase of the Coach House, the first garage was 

constructed upon the Coach House property. The first garage directly adjoined the 

Coach House and had an exit into the Coach House basement. Klingshirn utilized 

this garage. A second garage was also constructed upon the Coach House property

and adjoined the first garage, with a shared common wall. The second garage was 

the closest of the two garages to the Main House. Tischbein used the second 

garage. A driveway/gate was also constructed to provide access to both garages

and to provide additional parking. The only access to the driveway was through a 

gate that opened onto Shelby Street. Prior to this construction, the only parking 

available to the Main House and the Coach House had been street parking. 

Then, in 1998, title to the Main House was transferred from 

Klingshirn to Klingshirn and Tischbein. Thereafter, in 2001, Klingshirn, 

Tischbein, and Rankin decided to separate their ownership interest in the Main 
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House and the Coach House. By deeds dated June 28, 2001, Klingshirn conveyed

his interest in the Main House to Tischbein and Rankin; Tischbein and Rankin 

conveyed their interest in the Coach House to Klingshirn. Klingshirn continued to 

live in the Coach House and utilize the first garage. Tischbein and Rankin 

continued to live in the Main House, and Tischbein continued to use the second 

garage. All three parties utilized the driveway/gate on the Coach House property 

to access the garages. 

In the fall of 2017, Klingshirn, who was then 79 years old, wanted to 

sell the Coach House property. Klingshirn approached Tischbein and told him that 

he wanted to sell. Klingshirn hoped the two properties could be sold together for a 

larger profit or that Tischbein and Rankin would buy the Coach House from him.

When it became obvious to Klingshirn that Tischbein and Rankin were not going

to agree to sell the two properties together or purchase the Coach House,

Klingshirn listed the Coach House with a realtor. 

In the spring of 2018, Scott and Lorrie Hill became interested in 

purchasing the Coach House. At that time, Klingshirn informed the Hills of what 

Klingshirn called a “gentleman’s agreement.” Klingshirn explained that the 

gentleman’s agreement allowed Tischbein to use the second garage located upon 

the Coach House property. The Hills then decided to have a survey conducted of 

the Coach House property. The survey revealed that the second garage was, in 
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fact, located almost entirely on the Coach House property.2 Shortly after closing

upon the purchase of the Coach House in June of 2018, the Hills met with 

Tischbein and Rankin and offered a license that would allow Tischbein and Rankin 

to continue using the second garage and the driveway/gate; the Hills just wanted a 

writing to commemorate the agreement. Much to the Hill’s surprise, Tischbein

and Rankin refused the offer. 

On August 31, 2018, Tischbein and Rankin filed a Verified Complaint 

for Declaratory Judgment, Quiet Title, and Equitable Relief in the Kenton Circuit 

Court naming Scott Hill and Lorrie Hill as defendants. Therein, Tischbein and 

Rankin claimed ownership of the second garage by adverse possession and use of 

the common driveway/gate by prescriptive easement. Tischbein and Rankin

subsequently filed an Amended Verified Complaint on September 21, 2018, 

naming General Electric Credit Union, the Hills’ mortgage holder, as a defendant. 

On February 22, 2019, the Hills filed a motion for summary judgment. 

Therein, the Hills asserted that Tischbein and Rankin’s claim for title to the second 

garage was defeated by failure to satisfy the “hostile” element of adverse 

possession. Tischbein and Rankin also filed a motion for partial summary 

judgment on February 22, 2019. Therein, Tischbein and Rankin asserted that they 

2 Apparently, one of the exterior walls of the second garage slightly encroached upon the Main 

House property. This encroachment has not been argued or relied upon by the parties to this 

appeal. 
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held an irrevocable license for use of the second garage and the driveway/gate. On 

September 5, 2019, the Hills amended their answer and filed a counterclaim 

against Tischbein and Rankin and filed a third-party complaint against Klingshirn.

By order entered April 6, 2020, the circuit court denied the Hills’ 

motion for summary judgment. The circuit court further stated that although it 

believed the record was supportive of Tischbein and Rankin’s claim for adverse 

possession, Tischbein and Rankin had not moved for summary judgment on that

claim; thus, the circuit court could not adjudicate same. Rather, the circuit court

determined that Tischbein and Rankin had an irrevocable license:

This court finds that, at a minimum, Tischbein and 

Rankin had a license from Klingshirn to use them [the 

second garage and driveway/gate]. If their use is 

determined to be permissive, as argued by The Hills and 

Klingshirn, it would amount to a license based upon 

Klingshirn’s own testimony.

. . . .

It is this court’s opinion that, as a matter of law, 

Tischbein and Rankin have, at a minimum, an 

irrevocable license of which the Hills are barred from 

revoking by equitable principles. In finding this, 

however, the court is not precluding Tischbein and 

Rankin from continuing to pursue their adverse 

possession and easement claims.

April 6, 2020, Order at 21-22. The April 6, 2020, order did not adjudicate all the 

rights of all the parties and it did not contain the finality recitations of Kentucky 

Rules of Civil Procedure (CR) 54.02. The Hills then filed a motion to alter, 
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amend, or vacate the April 6, 2020, order, which was denied by order entered May 

18, 2020. 

Tischbein and Rankin thereafter filed a motion for summary judgment 

as to their claims for adverse possession of the second garage and a prescriptive 

easement as to the driveway/gate. By order entered February 1, 2022, the circuit 

court granted summary judgment in favor of Tischbein and Rankin on their claims 

for adverse possession and prescriptive easement. The February 1, 2022, order 

specifically provided:

Plaintiffs [Tischbein and Rankin] have established 

title through adverse possession by establishing the 

existence of all five elements of their claim for a fifteenyear period. Defendants [the Hills], in turn, have failed 

to show any act by Klingshirn asserting his ownership or 

conveying his consent to Tischbein’s and Rankin’s use of 

the property which would bar their claim.

. . . .

For all the reasons stated above finding Plaintiff’s 

[Tischbein and Rankin] adverse possession of the Main 

House garage, this court finds a prescriptive easement for 

the use of the driveway and gate to access the Main 

House garage.

. . . .

Motion of Plaintiffs, Marc Tischbein and Peggy 

Rankin, for Summary Judgment on their adverse 

possession claim regarding the Main House garage and 

prescriptive easement claim regarding the entry gate and 

driveway is SUSTAINED.
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February 1, 2022, order at 20, 22. The February 1, 2022, order contained complete 

CR 54.02 language. This appeal follows.

The Hills initially contend the circuit court erred by granting summary 

judgment in favor of Tischbein and Rankin on their claim for adverse possession as 

to the second garage. More particularly, the Hills assert that summary judgment 

was improper as there was abundant evidence that Tischbein and Rankin’s 

possession of the second garage was permissive, thus precluding satisfaction of the 

hostile element required for adverse possession.

Summary judgment is proper where there exists no material issue of 

fact and movant is entitled to judgment as a matter of law. CR 56; Steelvest, Inc. v. 

Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). When 

considering a summary judgment, all facts and inferences therefrom are to be 

viewed in a light most favorable to the nonmoving party. And, the court is to 

consider all evidentiary facts contained in the record. Collins v. Duff, 283 S.W.2d 

179, 183 (Ky. 1955). Upon review of the record before this Court, we conclude

that material issues of fact exist precluding entry of summary judgment.

To sustain a claim under adverse possession, the claimant must prove 

by clear and convincing evidence that possession of the property has been: (1) 

hostile and under a claim of right, (2) actual, (3) exclusive, (4) continuous, and (5) 

open and notorious. Moore v. Stills, 307 S.W.3d 71, 77 (Ky. 2010) (citations 
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omitted). These elements must be maintained for the statutorily requisite period of 

fifteen years. Id. at 78; Kentucky Revised Statutes (KRS) 413.010. And, “[f]ailure 

to prove even one of the elements is fatal to an adverse possession claim.” Hogg v. 

Hogg, 619 S.W.3d 921, 929 (Ky. App. 2020). Particularly relevant to this appeal, 

is whether there exists a material issue of fact upon the hostility element of their 

adverse possession claim as to the second garage. 

It is well settled that permissive use is generally not hostile and,

therefore, “possession by permission cannot ripen into title no matter how long that 

period of possession is continued.” 3A Robert W. Keats, Kentucky Practice – Real 

Estate Transactions § 19:3 (2023); see also United Hebrew Congregation of 

Newport v. Bolser, 50 S.W.2d 45 (Ky. 1932).

In the case sub judice, there was conflicting evidence upon whether 

Tischbein and Rankin’s use of the second garage was permissive rather than 

hostile. Klingshirn provided the following depositional testimony:

Q. Now, your testimony was, and correct me if 

I’m wrong, that there was a gentleman’s agreement that 

[Tischbein] got to use the garage?

A. Yea, right.

Q. When did that agreement begin?

A. When we built the second garage. Because 

it made the property look better because it was going - -

we were going to sell it as one piece of property, you 
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know. So we never thought about breaking up the 

property.

Q. So was - - I’m trying to get to the bottom of 

what this gentleman’s agreement was and how you knew 

that you had a gentleman’s agreement, because both of 

you are referring to a gentleman’s agreement - -

A. Yes.

Q. -- but both of you think it means - -

according to your testimony - - sworn testimony that Mr. 

Tischbein gave and that you’re giving now, that they 

mean different things. Okay?

A. Yea. I mean - -

Q. So - - so he said - -

A. I can’t image why anybody would say, here, 

I’m just going to give you this - - my land, you know. 

Because - - because even to get to that second garage, 

they got to drive through all the property of 109 Shelby. 

You can’t even get to that second garage, which you call 

Marc’s garage, unless you drive through 109 Shelby.

. . . .

Q. So - - so I guess the answer to my question 

is, did you - - did you or did you not understand that the 

second garage was part of 109 Shelby when you 

exchanged those deeds?

A. 109 - - both garages were on 109 Shelby.

. . . .

Q. So is [Rankin] telling the truth when she 

says there was an agreement between you and her and 
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Marc that they got to maintain ownership of that second 

garage when you split the property’s ownership?

A. Not - - not ownership. They go to use the 

garage. I didn’t say, you own the property. In fact, it 

was just never even - - I never even had a conversation 

with Peggy about it. It was just that we were selling this 

total piece of property. Marc was parking there, I was 

parking there, and Peggy was able to drive through the 

coach house property to get onto their property.

June 17, 2019, Deposition of Klingshirn at 73, 74, 76, 77.

Rankin’s depositional testimony, on the other hand, provided:

Q. Okay. So, I’m happy to use the 

terminology, even though there was no written 

agreement, that the three of you had an agreement, okay?

And the reason why I’m calling it an 

understanding, but I will - - I’ll use the term agreement 

- - is because we can’t flesh out the terms of the 

agreement without a written document. And that’s what

I’m trying to understand is what were the terms.

A. It was the terms - - the same as they stood

from 1994 when the garage was complete - - that the 

garage with with 109, attached to that, the other garage 

belonged to us. And we used that garage starting in 

1994.

Q. Okay. And your testimony is - - and I 

believe - - I don’t want to characterize it this way, but 

Marc said pretty much the same thing that - - he called it 

a gentleman’s agreement. Would that be something that 

you would characterize it as well?

A. No.
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Q. Okay. Then what would you characterize it 

as?

A. I’m going to classify it as a - - and it may 

not be on paper, but it was a total legal understanding 

between the three of us that David owned the garage at 

109 and we owned the garage on the other property, the 

420 garage.

Q. Okay. So how were you planning on 

conveying that agreement amongst the three of you to the 

rest of the world?

A. I never though there was any need to, 

because our agreement was that the garages belonged to 

each property. And my understanding was - - and the 

properly line went right down the middle of the garages.

May 30, 2019, deposition of Peggy Rankin at 82-84.

The depositional testimony of Klingshirn and Rankin is conflicting

upon the facts surrounding the use and/or ownership of the second garage. 

Klingshirn’s depositional testimony indicated that a gentleman’s agreement existed 

whereby he gave Tischbein/Rankin permission to use the second garage and 

driveway/gate. Rankin’s testimony, on the other hand, was that she believed the 

second garage was on the Main House property and that she and Tischbein owned

the second garage. Where, as here, the proffered testimony is crucial to the 

ultimate factual determination, the weight and credibility of that testimony make 

summary judgment inappropriate. We, therefore, conclude that a genuine issue of 
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material fact existed as to the hostile element of the adverse possession claim, thus 

precluding summary judgment.3

The Hills likewise contend the circuit court erred by granting 

summary judgment in favor of Tischbein and Rankin on their claim for a 

prescriptive easement as to the driveway/gate. More specifically, the Hills contend 

that summary judgment was improper as the evidence demonstrated that Tischbein

and Rankin’s use of the driveway/gate was permissive, thus precluding satisfaction 

of the adverse element of a prescriptive easement. 

The law of prescriptive easements was succinctly summarized in the 

case of Cole v. Gilvin, 59 S.W.3d 468 (Ky. App. 2001), where it was stated:

A prescriptive easement is a property right in one 

landowner (dominant tenement) representing a privilege 

to use the land of another (servient tenement) and is 

based on a presumed grant that arises from the adverse, 

uninterrupted, and continued use for a 15–year statutory 

period. . . .

. . . .

The right to use a passway as a prescriptive easement 

cannot be acquired no matter how long the use 

continues if it originated from permission by the 

owner of the servient tenement.

Id. at 475-76 (emphasis added). 

3 We acknowledge that Klingshirn’s deposition testimony was at times seemingly in conflict. 

However, upon the issue of permissive use of the second garage and driveway, a jury is best 

suited to judge the credibility of the testimony provided by Klingshirn, Tischbein, and Rankin.
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As the depositional testimony of Klingshirn and Rankin demonstrates, 

the driveway/gate located upon the Coach House property was treated in the exact 

same manner as the second garage. Therefore, the same material issue of fact upon 

permissive use that precluded summary judgment on the adverse possession claim 

as to the second garage also precludes summary judgment on the prescriptive 

easement claim as to the driveway/gate. Hence, we are of the opinion that the 

circuit court erred by rendering summary judgment upon the prescriptive easement 

claim.

The Hills next contend the circuit court erred by granting summary 

judgment in favor of Tischbein and Rankin as to the grant of an irrevocable license 

in the second garage and the driveway/gate in its April 6, 2020, order. More 

specifically, the Hills assert the circuit court erred as Tischbein and Rankin had not

pleaded a claim for an irrevocable license. Additionally, the Hills assert that 

material issues of fact remained regarding the irrevocable license and that even if 

there were a license, it would not have survived the sale of the property to the 

Hills.

It is well-established that “Kentucky is a notice pleading jurisdiction, 

where the central purpose of pleadings remains notice of claims and defenses.” 

Watson v. Landmark Urology, P.S.C., 642 S.W.3d 660, 671 (Ky. 2022) (citing 

Russell v. Johnson & Johnson, Inc., 610 S.W.3d 233, 240 (Ky. 2020); CR 8.01). 
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CR 8.01, entitled Claims for Relief, provides, in relevant part:

(1) A pleading which sets forth a claim for relief, . . . 

shall contain (a) a short and plain statement of the claim 

showing that the pleader is entitled to relief and (b) a 

demand for judgment for the relief to which he deems 

himself entitled. Relief in the alternative or of several 

different types may be demanded.

In the case sub judice, a review of the Verified Complaint for 

Declaratory Judgment, Quiet Title and Equitable Relief and the Amended Verified 

Complaint reveal that Tischbein and Rankin did not plead a claim for an 

irrevocable license. It is clear that where a party fails to plead a claim, the party 

cannot be entitled to summary judgment on such claim. See Watson, 642 S.W.3d 

at 671. As Tischbein and Rankin never pleaded a claim for an irrevocable license, 

they cannot be entitled to summary judgment on same. Therefore, we believe the 

circuit court erred in its April 6, 2020, order by granting summary judgment in 

favor of Tischbein and Rankin on the theory of an irrevocable license. 

Furthermore, if Tischbein and Rankin had sufficiently pleaded an irrevocable 

license claim, we harbor grave doubt that Tischbein and Rankin could succeed on 

such claim when Rankin’s testimony was that she and Tischbein owned the garage.

The Hills also contend that the circuit court erred by granting 

Tischbein and Rankin’s motion to dismiss the Hills’ Second Amended 

Counterclaim. More specifically, the Hills assert that summary judgment on the 

adverse possession claim “made other determinations that must also logically be
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reversed given the consensual and permissive nature of Tischbein/Rankin’s use.” 

Appellant’s Brief at 22. 

In light of our decision to reverse the circuit court’s grant of summary 

judgment on the claims for adverse possession and prescriptive easement, we 

believe the circuit court should reconsider its judgment dismissing the Hills’ 

second amended counterclaim.

In sum, we hold that the circuit court erred by rendering summary 

judgment in favor of Tischbein and Rankin on their claims for adverse possession, 

prescriptive easement, and irrevocable license. Thus, we reverse the circuit court’s 

summary judgments on those claims. We, likewise, reverse the circuit court’s 

decision to dismiss the Hills’ second amended counterclaim.

We view any remaining contentions of error to be moot or without 

merit.

For the foregoing reasons, the order of the Kenton Circuit Court is 

reversed and remanded for proceedings consistent with this Opinion.

JONES, JUDGE, CONCURS.

CETRULO, JUDGE, CONCURS IN RESULT ONLY.
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BRIEFS FOR APPELLANTS:

Kevin L. Murphy

J. Jeffrey Landen

Fort Mitchell, Kentucky

BRIEF FOR APPELLEES, MARC 

TISCHBEIN AND PEGGY RANKIN:

Kent W. Seifried

Fort Mitchell, Kentucky

BRIEF FOR APPELLEE, GENERAL 

ELECTRIC CREDIT UNION:

Tyler C. Arnzen

Thomas A. Wietholter

Cincinnati, Ohio