John E. Kiesling, Jr., Carroll Cone, Sr., and Caroline M. Cone v. Jeffery Smith and Sandra Smith

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

CA03-177

February 23, 2005

JOHN E. KIESLING, JR., CARROLL

CONE, and CAROLINE M. CONE AN APPEAL FROM JEFFERSON COUNTY

APPELLANTS CIRCUIT COURT

v. [CIV2002-505-1]

JEFFERY SMITH and HONORABLE BERLIN C. JONES,

SANDRA SMITH CIRCUIT JUDGE

APPELLEES

AFFIRMED

Karen R. Baker, Judge

This appeal is from the Jefferson County Circuit Court's decree quieting title to property that appellees Jeffery Smith and Sandra Smith obtained at a tax sale. In 1988, appellants Carroll Cone, Sr., and Caroline Cone entered into an installment agreement to purchase land from Stanley Clark. The Cones paid the real estate taxes to Mr. Clark, who was supposed to forward them to the county. In 1993, Mr. Clark and his wife conveyed the property to C&C Enterprises, Inc. Apparently, C&C did not pay taxes on the property. The Cones borrowed $5,000 from appellant John Kiesling and used the money to pay the remainder of their debt to C&C, which conveyed the property to the Cones in 1998. Because property taxes were not paid from 1993 through 1997, the Commissioner of State Lands sold the land to appellees on July 9, 1999.

On May 23, 2002, appellees filed this action to quiet title to the property against the Cones. Having been unable to repay appellant Kiesling, the Cones conveyed the property to him on July 8, 2002. That deed was recorded on July 9, 2002. Also on July 9, 2002, Kiesling moved to intervene in this action and to dismiss the complaint; he also filed a counterclaim to have title to the property quieted in him. The Cones filed an answer and a counterclaim for quiet title the same day and also moved to dismiss. Appellees amended their petition to add Kiesling as a party on July 15, 2002. In response to the amended petition to quiet title, Kiesling answered and again moved to dismiss, as did the Cones. A hearing was held on the motions to intervene and dismiss on September 24, 2002, at which Kiesling argued that appellees' petition was deficient and that the period of redemption had been tolled by Mr. Cone's mental incapacity.

Appellees filed their second amended petition to quiet title, for confirmation of public sale and title, and for ejectment on October 4, 2002. Kiesling filed a timely response to the second amended petition on October 16, 2002, asserting lack of notice of the sale and of the right to redeem, appellees' lack of possession of the property, insufficiency of appellees' affidavit, and Mr. Cone's incapacity. Kiesling also moved for summary judgment on that date.

In an order entered November 22, 2002, the court stated that appellees had sufficiently amended their pleadings and denied appellants' motions to dismiss and counterclaims. It also denied Kiesling's petition to quiet title and motions for foreclosure and for summary judgment. The order did not address the merits of appellants' defenses and instead provided:

The Court further finds [from] all matters presented to the Court, the petitioners second Amended Petition to [Quiet] Title, Petition for confirmation of Public Sale and Title and ejectment filed after the hearing date on October 4, 2002 and not responded to by either the Respondents nor 3rd party intervener should be and is hereby granted.

Appellants filed notices of appeal from that order on December 3, 2002. The final order quieting title, describing the property, confirming the public sale, and ordering ejectment was entered on January 17, 2003. In this order, the judge again stated that appellants had failed to respond to appellees' second amended complaint.

Appellants argue on appeal that the tax sale was void because of a defective property description and their lack of notice of the sale; that the trial court erred in denying their motions to dismiss because appellees' affidavit did not satisfy the requirements of Ark. Code Ann. § 18-60-602(b) (Repl. 2003) and because appellees did not provide all of the tax receipts required by Ark. Code Ann. §§ 18-60-602(b) and 18-60-607(a) (Repl. 2003); and that Mr. Cone's mental incapacity tolled the statutory period for attacking the validity of the tax sale, according to Ark. Code Ann. § 26-37-203(b) (Supp. 2003).

The circuit court, however, did not base its decision on any of the grounds challenged by appellants. Instead, it granted judgment to appellees after finding that appellants had not responded to the second amended petition. Appellants' argument on appeal does not challenge the court's finding. Instead, they focus their argument on the merits of the defenses set forth in their answers, on which the circuit court did not base its decision. The issues raised by appellants on appeal, therefore, are moot because any decision at this level would afford them no relief. See Moore v. Mueller Indus., ___ Ark. App. ___, ___ S.W.3d ___ (Nov. 10, 2004). As a general rule, the appellate courts of this state will not review issues that are moot because to do so would be to render advisory opinions, which we will not do. Id. A case becomes moot when any judgment rendered would have no practical legal effect upon a then-existing legal controversy. Id. Because appellants have failed to attack the only basis for the trial court's decision, we have no alternative but to affirm. Id.; see also Pugh v. State, 351 Ark. 5, 89 S.W.3d 909 (2002); Pearrow v. Feagin, 300 Ark. 274, 778 S.W.2d 941 (1989); Camp v. State, 66 Ark. App. 134, 991 S.W.2d 611 (1999).

Affirmed.

Bird and Crabtree, JJ., agree.