James Young and Barry N. Young v. Keith Dickson

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

JAMES YOUNG AND BARRY N. YOUNG,

APPELLANTS

V.

KEITH DICKSON,

APPELLEE

CA04-859

APRIL 6, 2005

APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT,

(E97-1464-3),

HON. DAVID B. SWITZER, JUDGE

AFFIRMED

Sam Bird, Judge

This is the second time that this case has been before this court. In the first appeal,1 we reversed the trial court's August 17, 2001, decree quieting title in favor of James and Barry Young: we held that Keith Dickson had presented sufficient evidence of his intention to adversely possess the land in dispute to survive the Youngs' motion to dismiss, and we remanded the case for a new trial. Following remand, the trial court entered a decree dated April 19, 2004, quieting title to the land in favor of Dickson, from which the Youngs now appeal. We find no error and affirm.

The factual background of this case is set forth in detail in our earlier opinion relating to the first appeal. Consequently, our discussion here is limited to the following developments since the first appeal. On remand, following a brief hearing consisting of argument of counsel, the parties stipulated that, in lieu of a second trial, the trial court could review and decide the case on the basis of the transcript of the original trial, with the addition of copies of a series of deeds conveying a parcel of land that the parties have come to

describe as the "Marney parcel." On October 31, 2003, the trial court issued a letter opinion stating its finding that, in light of this court's holding in the first appeal, Dickson had succeeded in proving that he had adversely possessed the disputed real property, and the decree quieting title in Dickson was entered on April 19, 2004. Attached to the decree was a copy of a survey showing the location and bearing a description of the parcel of land, title to which was quieted in Dickson.

The Youngs filed their notice of appeal on May 17, 2004. On July 8, 2004, Barry Young filed a motion for relief from the trial court's April 19, 2004, decree, contending that the court's August 17, 2001, decree was res judicata as to him because Dickson's notice of appeal in the first appeal did not name him as a party to the appeal. The trial court denied the motion. The Youngs filed an amended notice of appeal to include the denial of the motion for relief from judgment.

Standard of Review

The standards governing appellate review of an equity matter are well established. Although this court reviews equity cases de novo on the record, we do not reverse unless we determine that the trial court's findings of fact were clearly erroneous. Holaday v. Fraker, 323 Ark. 522, 920 S.W.2d 4 (1996). In reviewing a trial court's findings of fact, we give due deference to the trial judge's superior position to determine the credibility of witnesses and the weight to be accorded to their testimony. Id.

Arguments

Point One

The Youngs first argue that, because there was no proof of publication as required by Ark. Code Ann. § 18-60-503 (1987), the trial court lacked subject-matter jurisdiction. We disagree with this argument. The Youngs cite Crain v. Burns, 82 Ark. App. 88, 112 S.W.3d 371 (2002), in support of their argument. Crain relied on the supreme court's decision in Koonce v. Mitchell, 341 Ark. 716, 19 S.W.3d 603 (2000), which held that, in the absence of compliance with the notice requirements of section 18-60-503(a), the plaintiff could not make a prima facie case to quiet title, and the trial court lacked subject-matter jurisdiction to adjudicate the rights of the parties to the land. We believe the Youngs misread the holdings of both Koonce and Crain. In both Koonce and Crain it was clear from the evidence, and acknowledged by the parties and the court, that an interest in the disputed land was owned by unknown persons who were not parties to the litigation. In Koonce, the record title owner was not given notice or made a party; in Crain, the complaint named a large number of persons as parties, together with all of their surviving and unknown heirs at law, many of whom had received no notice of the suit. Clearly, in cases involving the rights or claims of unknown persons and the rights of known persons who have not been served with process in the action, as in Koonce and Crain, the failure to comply with section 18-60-503(a) renders the trial court without subject-matter jurisdiction to adjudicate the parties' rights. The requirement of Koonce and Crain that a section 18-60-503(a) notice be published as a prerequisite to the court's jurisdiction has no application where, as in the case at bar, the dispute involves the location of a single boundary between two parcels of land, one of which is undisputedly owned by the Youngs and one of which is undisputedly owned by Dickson. The Youngs and Dickson are the only individuals who could possibly claim an interest in the location of the disputed boundary, and all are parties to this action.

Subject-matter jurisdiction is tested on the pleadings and not the proof. Maroney v. City of Malvern, 320 Ark. 671, 899 S.W.2d 476 (1995). It is the power of a court to adjudge certain matters and to act on facts alleged. Robinson v. Winston, 64 Ark. App. 170, 984 S.W.2d 38 (1998). The lack of subject-matter jurisdiction means that the court cannot hear a matter "under any circumstances" and is "wholly incompetent to grant the relief sought." J.W. Reynolds Lumber Co. v. Smackover State Bank, 310 Ark. 342, 352-53, 836 S.W.2d 853, 858 (1992). The land in controversy is located in Garland County, and all of the parties claiming an interest in the disputed land are parties to this suit. Therefore, the Garland County Circuit Court unquestionably had subject-matter jurisdiction over this action. Point Two2

The Youngs next argue that, because Dickson's notice of appeal in the first appeal did not specifically name Barry Young as a party to the appeal, Dickson never appealed the part of the decree in favor of Barry Young and, on remand, the decree was res judicata as to the lands quieted in Barry by the first decree. Dickson's notice of appeal in the first appeal stated that he was appealing "from the Decree Quieting Title entered in favor of the Defendant, James Young, in this case on August 17, 2001."

Rule 3(e) of the Rules of Appellate Procedure - Civil provides in pertinent part:

(e) Content of Notice of Appeal or Cross-Appeal. A notice of appeal or cross-appeal shall specify the party or parties taking the appeal; shall designate the judgment, decree, order or part thereof appealed from and shall designate the contents of the record on appeal. The notice shall also contain a statement that the appellant has ordered the transcript, or specific portions thereof, if oral testimony or proceedings are designated, and has made any financial arrangements required by the court reporter pursuant to Ark. Code Ann. § 16-13-510(c). The notice shall also state whether the appeal is to the Court of Appeals or to the Supreme Court ....

(Emphasis added.) There is no requirement in Rule 3(e) that the notice designate the appellees. In Aka v. Jefferson Hospital Association, Inc., 69 Ark. App. 395, 13 S.W.3d 224 (2000), later appeal, 344 Ark. 627, 42 S.W.3d 508 (2001), this court held that the failure to name certain individual appellees in the notice of appeal did not violate Rule 3(e) where the notice of appeal clearly stated the party taking the appeal and the order being appealed from. This is also consistent with the interpretation of the corresponding federal rule. See Streetman v. Jordan, 918 F.2d 555 (5th Cir. 1990); Chathas v. Smith, 848 F.2d 93 (7th Cir. 1988); Davis v. Fulton County, 90 F.3d 1346 (8th Cir. 1996); Battle v. District of Columbia, 854 F.2d 1448 (D.C. Cir. 1988). Dickson's notice of appeal from the first trial clearly identified the party taking the appeal and the order from which the appeal was taken. Furthermore, Barry Young participated as an appellee in the first appeal by filing a brief and arguing why the decree from the first trial should be affirmed, but never contending that he was not an appellee. Therefore, we hold that Dickson's failure to identify Barry Young by name as an appellee in the notice of appeal did not deprive this court of jurisdiction over him on the first appeal; and we do not agree with Barry Young's argument that the trial court's August 17, 2001, decree was res judicata as to him.

Points Three and Four

We discuss the Youngs' third and fourth points together because they are interconnected. The third point is that the trial court erred in awarding Dickson land contained in a deed from Dickson's sister back to Marney and later conveyed to Barry Young because such a finding was contrary to the trial court's finding in its letter opinion and contrary to the evidence. The Youngs' fourth point is that the trial court erred in "reversing" its finding that the survey conducted by James Spurlin established the southwest corner call for the point of beginning of the land described by Dickson's deed. We find no error as to either of these points.

In its August 17, 2001, decree, the trial court relied on a survey that had been prepared by Ken J. Spurlin to establish the point of beginning for determining the location of the boundary between the Youngs' and Dickson's respective lands. However, in its decree on remand (the April 19, 2004, decree), the trial court adopted the description contained in the survey of James Montgomery and attached a copy of that survey to the decree. Although the court did not expressly state in its decree why it chose to rely on Montgomery's survey instead of Spurlin's, it is apparent from the transcript of the hearing on remand that, after listening to argument of counsel, the court concluded that the Montgomery survey depicted and described the land that Dickson proved to have been in his actual, adverse possession, whereas the Spurlin survey apparently3 depicted the parcels of land described in the parties' respective deeds, without regard for who was in possession of the parcels. The Youngs argue that Montgomery's description of their land (designated in the Montgomery survey as Parcel 2) does not correspond to the description in Barry Young's deed and, therefore, the trial court awarded Dickson some of the lands described in Barry Young's deed. Montgomery testified that the description in his survey was based on the assumption that another surveyor, John Williams, had correctly set the section corner. Spurlin's survey apparently locates the section corner somewhere else.4 It comes as no surprise that where two surveyors undertake to describe the location of the boundary line between two adjacent parcels of land, but they disagree as to the location of a reference point from which to begin their surveys, then the two surveyors will come to different conclusions as to the location of the boundary between the parcels. The issue in this adverse possession case is not where the record boundary between the two parcels is drawn but, rather, where the boundary of the parcel of land that the court finds to have been adversely possessed by Dickson is located. The court obviously chose to describe Dickson's land by referencing the Montgomery survey because it depicted the location of the land that Dickson actually possessed, not the description of the land described in any deed. We cannot say that the trial court was clearly erroneous in his use of the Montgomery survey and description. Furthermore, we have carefully examined the Montgomery survey and compared it to the description of the land to which the trial court quieted title in Dickson. Contrary to the Youngs' argument, there is no conflict between the survey and the decree's description.

The Youngs do not develop their further argument that the trial court's finding that Dickson adversely possessed the disputed tract is contrary to the evidence and cite no authority for that proposition. This court does not consider an assignment of error presented in the brief not supported by convincing argument or authority. Lowell v. Lowell, 55 Ark. App. 211, 934 S.W.2d 540 (1996).

Affirmed.

Glover and Roaf, JJ., agree.

1 Dickson v. Young, 79 Ark. App. 241, 85 S.W.3d 924 (2002).

2 We have chosen to address the Youngs' arguments in the sequence that they are discussed in the argument section of their brief, rather than in the sequence they are listed in the statement of points on appeal.

3 The Spurlin survey is not included in the Youngs' addendum.

4 Barry Young's deed actually calls for the commencement to be based on the southwest corner of the quarter section, whereas both Williams and Montgomery begin their descriptions of Barry Young's land at the southeast corner.