Sutton v. Gardner

• Decision Date: 30 November 2011
• Docket Number: No. CA 11–388.,CA 11–388.
• Citation: 2011 Ark. App. 737,387 S.W.3d 185
• Parties: Hazel SUTTON, as Administratrix of the Estate of Jennie Faye Rolen, Deceased, and Bessie Tillery, Appellants v. Charlie GARDNER, Appellee.
• Court: Arkansas Court of Appeals

2011 Ark. App. 737

387 S.W.3d 185

Hazel SUTTON, as Administratrix of the Estate of Jennie Faye Rolen, Deceased, and Bessie Tillery, Appellants

v.Charlie GARDNER, Appellee.

No. CA 11–388.

Court of Appeals of Arkansas.

Nov. 30, 2011.

Clifford Joseph Henry, Conway, for appellant.

Melvin E. Morgan, Clinton, for appellee.

CLIFF HOOFMAN, Judge.

[Ark. App. 1]This case involves a long-running and sometimes violent family dispute over a tract of land in Van Buren and Stone Counties. Appellant Bessie Tillery and appellee Charlie Gardner are two of the eight children of Thomas Gardner, who died in 1961, leaving a large tract of land, which included the disputed twenty-eight acres in Van Buren County, to pass by intestacy. Thomas was survived by his eight children and his wife, Nina Gardner. His other children were Steve Gardner, Zillah Rooney, Jessie Gardner, Earnest Gardner, Jennie Faye Rolen, and Mary Bramlett. Appellant Hazel Sutton is the administratrix of the estate of Jennie Faye Rolen. Appellants appeal from the circuit court's order quieting title to a portion of the disputed property in appellee. Although we affirm the circuit court's decision, we do so for a different reason than that given by the circuit court.

On December 8, 1983, Nina gave a quitclaim deed to Zillah, which contained the [Ark. App. 2]following description:

THAT I, Nina Gardner GRANTOR, for and in consideration of the sum of One Dollar ($1.00) and other consideration DOLLARS, ($1.00) in hand paid by Zillah Rooney GRANTEE, the receipt of which is hereby acknowledged, do hereby grant, convey, sell and quitclaim unto the said GRANTEE, and unto her heirs, and assigns forever, all my right, title, interest and claim in and to the following lands lying in Van Buren County, Arkansas: All real property which I own and which is located in Section 24, Township 13 North; Range 14 West of the Fifth Principal Meridian, Arkansas. Said real estate totalling [sic] 28 acres, more or less.

Zillah conveyed her one-eighth interest, and the interest she received from her mother by quitclaim deed, to appellee on November 1, 1988. This deed contained the following language:

THAT I, Zillah Ronney [sic], single person, hereinafter called Grantor, for and in consideration of the sum of One Dollar ($1.00) and other good and valuable consideration to me in hand paid by Charlie Gardner and Ruth Gardner, his wife, hereinafter called Grantee, do hereby grant, sell and quitclaim unto said Grantee and Grantee's heirs and assigns forever, the following described land, situate [sic] in Van Buren County, State of Arkansas to-wit: Part of the Southeast quarter of Northeast quarter of Section 24, Township 13 North, Range 14 West of the Fifth Principal Meridian, totalling [sic] 28 acres more or less.

On October 31, 1988, Jessie Gardner and his wife, Wanda, conveyed their interest in the property to appellee in a quitclaim deed that contained the following language:

THAT WE, Jessie Gardner and Wanda Lee Gardner, husband and wife, hereinafter called Grantors, for and in consideration of the sum of One Dollar ($1.00) and other good and valuable consideration to us in hand paid by Charlie Gardner and Ruth Gardner, his wife, hereinafter called Grantee, do hereby grant, sell and quitclaim unto the said Grantee and Grantee's heirs and assigns, the following described land, situate [sic] in Van Buren County, State of Arkansas, to-wit: Part of the Southeast quarter of the Northeast quarter of Section 24, Township 13 North, Range 14 West of the Fifth Principal Meridian, totalling [sic] 28 acres more or less.

The family has engaged in litigation over this property more than once. Most recently, a partition action filed by Jennie Faye Rolen, Bessie Tillery, and Mary Bramlett in 1994 was [Ark. App. 3]dismissed without prejudice on November 20, 2001. In the 1994 action, appellee was a defendant. In his answer, he raised the affirmative defense of adverse possession. Bessie filed this action against Hazel, appellee, and other heirs on November 1, 2005. In her petition for partition, Bessie asked the circuit court to order the property sold and the proceeds distributed to the parties, according to their ownership interests. Appellee raised the affirmative defenses of laches, statute of limitations, res judicata, and adverse possession. Appellee filed a counterclaim asking the court to quiet title to the entire twenty-eight acres in him. He asserted that he had color of title for more than forty-five years; had paid taxes on the property continuously since 1961; and had adversely possessed the property. In her answer to appellee's counterclaim, Hazel argued that appellee was not entitled to have the title confirmed in him because of his unclean hands. She asserted that he had made “numerous threats ... against various people....”

In her response to the amended petition for partition, Hazel alleged that the deeds from Nina to Zillah; Zillah to appellee; and Jessie and Wanda to appellee were void because their legal descriptions were so vague that the property to be conveyed could not be located from the faces of the deeds. Appellee moved for summary judgment, arguing that this action was barred by the seven-year statute of limitations found in Arkansas Code Annotated section 18–61–101 and the doctrine of laches. He also asserted that, because the partition action dismissed in 2001 had not been refiled within one year, pursuant to Arkansas Code Annotated section 16–56–126, it was barred.

On January 4, 2010, the circuit court dismissed Bessie's partition petition on the [Ark. App. 4]ground that the statute of limitations and the one-year period for refiling after the 2001 dismissal without prejudice had expired. It continued the case on appellee's counterclaim for quiet title. The court held a bench trial on the counterclaim on March 9, 2010. Appellee and his daughters, Kelly Gardner and Merlene Gardner, testified on appellee's behalf. Appellants also testified. Appellee presented evidence that he has occupied the property since his mother died and treated it as his own, making improvements, cutting fire wood, hauling and selling rock, farming, and raising livestock. He also presented evidence that, with the exception of a few years, he paid taxes on the property from the 1970s through 2009. He does not dispute that Jennie Faye paid the taxes in 1998 and 1999, and that Bessie paid them in 2003 and 2004.

On December 15, 2010, the circuit court entered its findings of fact and conclusions of law, analyzing the validity of the legal descriptions in the quitclaim deeds in light of Ketchum v. Cook, 220 Ark. 320, 247 S.W.2d 1002 (1952). Based on its understanding of Ketchum, the court ruled that the quitclaim deed from Nina to Zillah was sufficient color of title because it contained the phrase “all real property which I own.” Although the deed from Zillah to appellee did not contain that phrase, the court found that it was sufficient because the previous deed from Nina to Zillah was sufficient under Ketchum. The court found that the deed from Jessie Gardner to appellee was insufficient. It granted appellee's claim for quiet title to the property he obtained from Zillah. Appellants filed a timely notice of appeal. They have not challenged the court's dismissal of their claim for partition, and appellee has not filed a cross-appeal from the circuit court's ruling that his deed from Jessie was void.

Quiet-title actions have traditionally been reviewed de novo as equity actions. [Ark. App. 5]RioVista, Inc. v. Miles, 2010 Ark. App. 190, 374 S.W.3d 698. However, findings of fact will not be reversed unless they are clearly erroneous. Id. Disputed facts and determinations of the credibility of witnesses are within the province of the fact-finder. Machen v. Machen, 2011 Ark. App. 47, 380 S.W.3d 497.

Appellants argue in their first point that the trial court erred in refusing to dismiss appellee's counterclaim because it was barred by the saving statute, Arkansas Code Annotated section 16–56–126(a)(1) (Repl.2005), which provides that if the plaintiff suffers a nonsuit in an action filed within the statute of limitations, he may commence a new action within one year after the nonsuit. It is undisputed that none of the plaintiffs in the earlier action refiled it within one year after it was dismissed in 2001. Citing Arkansas Rule of Civil Procedure 8(c) and (f) (2011), appellants argue that the saving statute applied to appellee, who was a defendant in that action, because his affirmative defense of ownership of the property by virtue of his deeds or, in the alternative, by adverse possession, was in essence a counterclaim; therefore, appellee was a plaintiff subject to the terms of the saving statute.

We disagree. Adverse possession is a type of affirmative defense that must be specifically pled. Bobo v. Jones, 364 Ark. 564, 222 S.W.3d 197 (2006). As explained in the Reporter's note 6 to Rule 8(c), when a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court has discretion to allow a counterclaim or affirmative defense. Rule 8(f) provides that all pleadings “shall be liberally construed so as to do substantial justice.” There is nothing in the record to suggest that the court in the 1994 action treated appellee's affirmative defense as a counterclaim. In any event, the nonsuit in [Ark. App. 6]2001 did not affect the statute of limitations, which has not begun to run on appellee's quiet-title claim, because he is still in possession of the property. See Shelton v. Jack, 239 Ark. 875, 395 S.W.2d 9 (1965); Eades v. Joslin, 219 Ark. 688, 244 S.W.2d 623 (1952); Ark.Code Ann. § 18–61–101(a) (Repl.2003).

Appellants further contend that the effect of section 16–56–126 was to render the previous dismissal an adjudication on the merits; therefore, the trial court erred in denying their motion to dismiss appellee's counterclaim because it was barred by the...