J. D. Phillips v. Heirs of Cleola Metcalfe et al.

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

CA04-737

May 4, 2005

J.D. PHILLIPS AN APPEAL FROM LONOKE COUNTY

APPELLANT CIRCUIT COURT

[NO. E2001-387]

v.

HONORABLE PHILLIP WHITEAKER,

Heirs of CLEOLA METCALFE, et al. CIRCUIT JUDGE

APPELLEES

AFFIRMED AND REMANDED WITH

INSTRUCTIONS

Josephine Linker Hart, Judge

Appellant J.D. Phillips appeals from an order denying his claim for adverse possession of a particular tract of land. We affirm and remand to the trial court to enter an order with a specific metes-and-bounds description.

The land at issue is located in the eastern half of a thirty-nine-acre parcel purchased by Ed Nichols in 1930. The parcel is rectangular in shape, measuring approximately one-quarter mile wide and one-half mile long. At some point not revealed in the record, Nichols died intestate, and there is no evidence that his estate was probated. All indications are that he and his wife, Lucy, had twelve children. Lucy died in 1966, and her estate was probated. Around that time, the thirty-nine-acre parcel and another forty acres that Ed had owned were divided among the twelve children, with each receiving a long strip approximately 165 feet wide and one-half mile long. The four easternmost strips, which are relevant to this case, were deeded to (from east to west) Cleola Metcalfe, Rubye Lambert, Carrie Brooks, and Robert Nichols. These lands are bounded on the east by State Highway 13, and at some point, Highway 70 cuts across them from east to west. The intersection of the two highways is located in Cleola's strip.

The conveyances to Cleola and Rubye excepted a tract of land that had been deeded to the Pennington family in 1939. That tract's northeast corner was situated at the intersection of Highways 70 and 13 in Cleola's strip. It extended 300 feet south along Highway 13, west for 300 feet, then north to Highway 70. Over the years, the Pennington tract would be split into four plots, which were eventually purchased by appellant in 1974, 1992, and 1996.

During the course of his purchases, appellant came to believe that, in addition to the Pennington plots, he owned an additional, L-shaped parcel measuring approximately 3.8 acres, which extended south and west of those plots and included land deeded to Cleola, Rubye, Carrie, and Robert. Beginning in 1974, appellant made use of the parcel by living in a mobile home on part of it, renting out mobile homes on other parts, storing property, and clearing and maintaining the land. However, on October 10, 2000, his possession of the parcel was called into question when he received a letter from attorney Ronald Carey Nichols (a member of the Nichols family) informing him that he was trespassing.

On May 22, 2001, appellant filed a petition to quiet title to the four Pennington plots, for which he had deeds, and to the L-shaped parcel, which he claimed by adverse possession. He set out in the style of the case the legal description of the entire land area, which measured 6.13 acres, and named as defendants Cleola Metcalfe and heirs; Rubye Lambert and heirs; Carrie Brooks and heirs; Robert Nichols and heirs; and attorney Ronald Carey Nichols (who claimed an interest in the property). For the sake of convenience, we will refer to the defendants en toto as the appellees in this case.

On July 25, 2002, and July 15, 2003, the case was tried before the circuit judge. During trial, appellant amended his adverse possession pleading to claim a slightly smaller area marked by two iron pins to the south of his deeded property; one iron pin to the southwest of his deeded property; and Buttermilk Creek on the west, which was not quite as far west as he had originally claimed. Following the trial, the court quieted title in appellant to the lands directly south of his deeded tracts, ruling that he had proved adverse possession of those areas (referred to in the court's letter opinion as Areas L, M, and N), but the court declined to quiet title in appellant to the area west and southwest of his deeded property, which was primarily bounded by Buttermilk Creek, and which the court designated as Area O. As a result, appellant was ordered to remove two mobile homes, portions of which encroached westward from his deeded property onto Area O. It is from that ruling that appellant now appeals.

Appellant argues first that the trial court erred in finding that he did not prove adverse possession of Area O. He contends that he presented the same proof with regard to Area O as he presented with regard to Areas L, M, and N, of which he was awarded adverse possession. Equity cases such as quiet-title and adverse-possession cases are reviewed de novo on appeal. See White River Levee Dist. v. Reidhar, 76 Ark. App. 225, 61 S.W.3d 235 (2001). We do not reverse the trial court's findings in such cases unless the findings are clearly erroneous. Id. A finding of fact is clearly erroneous when, although there is evidence to support it, we are left with the definite and firm conviction that a mistake has been committed. Id.

To prove the common-law elements of adverse possession, the claimant must show that he has been in possession of the property continuously for more than seven years and that his possession has been visible, notorious, distinct, exclusive, hostile, and with the intent to hold against the true owner. Id. Additionally, in 1995, the legislature enacted Ark. Code Ann. § 18-11-106(a) (Repl. 2003), which provides that, to establish adverse possession of real property, the claimant must have actual or constructive possession of the property being claimed, plus hold color of title and pay ad valorem taxes on either the land being claimed or contiguous land for at least seven years. See Anderson v. Holliday, 65 Ark. App. 165, 986 S.W.2d 116 (1999).

The evidence at trial with regard to Area O was as follows. Appellant offered proof that he had paid taxes on property contiguous to Area O for the required period. He testified that he had maintained the property from his deeded land on the east to Buttermilk Creek on the west. He said that, when he bought one of his tracts of property in 1992, he understood that the creek was its western border. He also said that there was a fence along the creek, which he later tore down, and that he cleared to that fence in 1992. Appellant further testified that one of his mobile homes that encroached westward onto Area O had been there since at least 1994.1 The other encroaching mobile home, he said, was located "near about" where his grandmother's house had been located in 1974. He offered into evidence a 1985 appraisal of the house to confirm its location. However, while the appraisal places the house on what was formerly appellant's grandmother's property just east of Area O, it does not clearly confirm that the house itself was located on Area O. Appellant additionally presented the testimony of area resident Steve Martin, who said that the mobile home was located thirty-five to forty yards from where appellant's grandmother's house had been.

Appellant also elicited testimony from two of appellees' witnesses - surveyor Ken Kuras and logger Joe Norwood - that the east side of the creek was well kept while the west side was grown up, thus indicating that appellant had maintained the east side of the creek.2 Finally, there was an absence of testimony that any person other than appellant had occupied the area in question since at least 1992.

Appellees, for their case, presented the testimony of Cleola's niece, Marilyn Perry, who had been living on Cleola's property for twenty-eight years. Perry said that, before an ice storm a "couple of years ago," appellant had not cleared any trees along the creek. Lois Nichols, who was Lucy Nichols's daughter-in-law and administratrix of her estate, said that she lived on the property with Lucy and was familiar with it and with appellant's occupation of it. She said that appellant had not started clearing the property around the creek until 1999. Finally, there was testimony from logger Joe Norwood that the trees along the creek had been cut within the last three to four years.

Based on the above testimony, the trial court ruled that appellant had not met his burden of proving adverse possession of Area O. We do not believe that the court's finding was clearly erroneous. Contrary to appellant's argument, the evidence regarding his occupation of Area O is in marked contrast to the evidence regarding his occupation of Areas L, M, and N. The proof was strong that appellant had openly and notoriously used parts of Areas L, M, and N since the 1970s by placing trailers and sheds thereon, maintaining the areas, living on at least one of the areas, placing a garden in one of the areas, driving across a road on one of the areas to get to his home, and using the areas for storage. As for Area O, however, appellant's best evidence was his own testimony that he had maintained westward to the creek since 1992 and that he had placed the two encroaching mobile homes on the property in 1994. However, both of the mobile homes, according to surveys and diagrams in the record, barely encroached westward onto Area O. Further, appellant's testimony that he had been maintaining to the creek since 1992 was expressly disputed by Marilyn Perry and Lois Nichols, who said that appellant did not maintain the area until 1999or later, and by logger Joe Norwood, who opined that the trees along the creek had been cut only within the last three or four years. Further, surveyor Kuras said he saw no remnants of a fence along the creek, even though he searched with a metal detector.

It was within the purview of the trial court to consider the evidence and determine the credibility question regarding appellant's occupation of Area O. The court resolved that issue against appellant. A fact-finder may accept or reject any part of a witness's testimony, see generally Hardrick v. State, 47 Ark. App. 105, 885 S.W.2d 910 (1994), and we give due deference to the trial court's superior position to judge the credibility of the witnesses and the weight to be accorded their testimony. Walker v. Hubbard, 31 Ark. App. 43, 787 S.W.2d 251 (1990). Further, there was evidence that appellant's mobile homes encroached onto Area O just slightly, in contrast to appellant's full and obvious occupation of Areas L, M, and N. The court was not required to believe that appellant openly and notoriously occupied Area O westward to Buttermilk Creek for the required statutory period.

Appellant further argues that a diagram used by the trial court in its letter opinion incorrectly placed one of the iron pins that marked the edge of the property he claimed. He contends that the erroneous placement of this pin resulted in the court denying him adverse possession of Area O. We disagree.

Surveyor Bill Marcotte testified that, in determining the area of property adversely claimed by appellant, he ran a line from a pin on Highway 13, which marked the southeast corner of the disputed property, to a pin over 500 feet west, which marked the southwest corner. Even so, on Exhibit 17 appellant, while testifying, placed the number 5 at the southwest corner of Area M, which is approximately 300 feet west of the right-of-way line of Highway 13. The trial court issued its letter opinion and attached a diagram that numbered the southeast and southwest corner in a manner identical to the numbers that appear on Exhibit 17. The diagram of the property that was attached to the court's letter opinion clearlyidentified the areas that were the subject matter of this action and the area that the court found had been adversely possessed by appellant.

Appellant, in a letter to the court shortly after the court issued its letter opinion, questioned the court as to whether the number 5 as shown on the court's attached diagram marked the southwest corner of the disputed Area M. Appellant's letter did not apprise the court that appellant thought that number 5 designated the southwest corner of Area O. The court, in its reply, clearly stated that he intended for number 5 to designate the southwest corner of the disputed Area M.

In addressing appellant's issue on appeal, first, we do not read the court's letter opinion to say that the placement of number 5 had any bearing on whether or not appellant had adversely possessed Area O. Second, in locating the pin, the court's markings merely mirrored the marks made by appellant on a survey. Third, it appears from the court's reply to appellant's letter inquiry that the court was interested in number 5 only insofar as it marked the southwest corner of Area M. In light of the foregoing, we hold that the trial court's finding clearly intended to hold that appellant did not prove adverse possession of Area O and that such finding was not clearly erroneous.

Appellant's next arguments concern the court's order to remove the two encroaching mobile homes from Area O. He contends first that, even if he did not prove adverse possession of Area O, the trial court erred in ordering him to remove the structures because appellees did not file an ejectment action. He cites Ark. Code Ann. § 18-60-205(a)(1) and (2) (Repl. 2003), which require that actions for the recovery of land set forth in the complaint all deeds or other evidence of title relied upon for maintenance of the suit and that the plaintiff file copies of written evidence of title as exhibits therewith and state such facts as shall show a prima facie title to the land in himself.

It is true that, in response to appellant's petition to quiet title, appellees filed only an answer denying his allegations; they filed no counterclaim in ejectment or any other pleading seeking to remove appellant from the land. Prior to trial and at another point during the trial, the court acknowledged that no counterclaim had been filed to "quiet title" to any particular lands in any particular defendant. However, the subject of ejectment was not expressly addressed until the close of appellees' case, when their counsel made an "oral motion of ejectment." No ruling was made because appellant wanted to present rebuttal evidence. Once that occurred, the following took place:

Appellees' Counsel: Your Honor, we would like - if we're not already on record that it was testimony as to how much of an encroachment that [appellant] was on the property and we would like the record to reflect that, and therefore, like a motion I made before that we would make an oral motion of ejectment.

Court: I understand that. Obviously if the - if the court denied [appellant's] request for quieting title, it's obvious that there are pieces of personal property, as well as a residence, which is on the disputed tract of land and if the court does not grant his request to quiet title to that the ultimate end result of that is that [appellant] is going to have to remove those items, so I understand that and the court will deal with that in its letter opinion.

The record reflects no objection by appellant - either during the above colloquy or in a post-trial brief - to appellees' oral motion for ejectment or to the trial court's statement that, if it ruled against appellant, it would require him to remove any encroaching property. In particular, the record does not show that appellant objected on the basis that appellees failed to comply with the statutory pleading requirements for an ejectment action. We do not address arguments that were not fully developed or articulated at the trial level. See Bradford v. Bradford, 52 Ark. App. 81, 915 S.W.2d 723 (1996). In any event, we note that, while there must ordinarily be a pleading in support of relief awarded by a court, Bradford, supra, when issues not raised by the pleadings are tried by the express or implied consent of theparties, they shall be treated in all respects as if they had been raised in the pleadings. Ark. R. Civ. P. 15(b) (2004). An amendment of a party's pleading may be made by motion "at any time, even after judgment." Id. Rule 15(b) has been interpreted as permitting a defendant to raise a counterclaim, even after judgment, where it is clear that all of the relevant evidence is in the record or where the issue is clearly one that the parties contemplated as being before the court. See Hempel v. Bragg, 313 Ark. 486, 856 S.W.2d 293 (1993). In light of these authorities, and in the absence of an objection from appellant, it appears that appellees amended their pleadings to assert a counterclaim for ejectment and that the issue of ejectment was contemplated by the parties as being before the court, despite appellees' having filed no ejectment pleading.

Appellant argues next that appellees could not maintain an ejectment action because they failed to prove that they had title to the disputed property. Our review of the record confirms that the evidence at trial regarding title to the subject property was far from clear. The proof included a 1930 deed reflecting that all of the lands involved in the case were once owned Ed Nichols; however, there were no deeds of conveyance upon Ed Nichols's death, nor was there a probate of his estate. Following Lucy Nichols's death, her children and their spouses quitclaimed to each other various parcels of the land, including the four parcels relevant to this case. Three of those four grantees - Cleola, Rubye, and Robert - had died by the time of trial. There was no evidence regarding the probate of any of their estates except for Rubye's, which showed that her granddaughter and two other persons received an interest in her strip. The remaining grantee - Carrie Brooks - was still alive at the time of trial, although she did not attend.

Appellant cites the well known maxim that a plaintiff in ejectment must prevail on the strength of his own title and not on the weakness of his adversary's claim. See Dorey v. McCoy, 246 Ark. 1244, 442 S.W.2d 202 (1969); see also Knight v. Rogers, 202 Ark. 590, 151 S.W.2d 669 (1941) (holding that a plaintiff in ejectment cannot prove title if his grantors had no title to convey). However, we again observe that appellant did not develop this issue below. Although he expressed concern at certain points in the trial and in his post-trial brief over the lack of clarity as to who owned the Nichols property, he did not argue or obtain a ruling on the question of whether appellees could maintain an ejectment action in the absence of such proof. As previously stated, we do not address arguments that were not fully developed or articulated at the trial level. See Bradford v. Bradford, supra. We also note that in Brooks v. Johnson, 250 Ark. 309, 465 S.W.2d 103 (1971), our supreme court held that, even though a plaintiff in ejectment must recover upon the strength of his own title, where the parties trace their title to a common source, the one must prevail who has the superior equity. In the case at bar, Ed Nichols once owned all of the property at issue. Moreover, Cleola, Rubye, Carrie, and Robert were among those listed as grantors of the Pennington tract in 1939, and, because appellant eventually owned the Pennington tract, these four were actually appellant's predecessors in title.

As for appellant's argument that his ejectment from Area O is inequitable, he maintains that 1) the mobile homes have encroached only a short distance into the area, and 2) appellees never filed a proper ejectment pleading, thus depriving him of the opportunity to assert defenses to the action. This second sub-argument has already been addressed and resolved. As for the first sub-argument, appellant cites Stuttgart Electric Co. v. Riceland Seed Co., 33 Ark. App. 108, 802 S.W.2d 484 (1991), for its holding that the question of whether to order removal of an encroaching building is governed by equitable principles. In Stuttgart Electric, the trial court found that it would be inequitable to require the defendant to remove a 101-foot-wide, 124.6-foot-long building that encroached only 2.3 feet onto the plaintiff's land where removal of the building would cost $10,000 and where the encroachment was unintentional. We affirmed the trial court's balancing of the equities. Here, by contrast, we have two structures that are by their nature mobile, and there has been no showing as to the cost of removing them. Further, a case in which we granted due deference to the trial court and affirmed its ruling does not require us to reverse a court that may have balanced the equities differently.

Based on the foregoing, we affirm the trial court's findings regarding appellant's failure to prove adverse possession of Area O and its order to remove the encroaching structures. However, we modify our affirmance because the court granted part of appellant's adverse-possession claim, yet the court's decree does not establish the boundary lines between the parties' lands by specific description, as it is required to do. See Jennings v. Burford, 60 Ark. App. 27, 958 S.W.2d 12 (1997). We therefore instruct the trial court to amend its decree to add a more specific metes-and-bounds description of the parties' lands that mirrors the plat attached to the court's rulings or orders. See id.

Affirmed and remanded with instructions.

Robbins and Griffen, JJ., agree.

1 There is some confusion in the testimony regarding this mobile home. Appellant first testified that it replaced one that was there prior to 1994, which burned. However, other evidence indicated that the first mobile home was placed at the site in 1994 and that it burned. The latter testimony is consistent with Plaintiff's Exhibit 25, which is a fire department incident report dated 1995.

2 Appellant erroneously states in his brief that Kuras testified that there was a garden "just east of the creek in the northern part of the tract." In fact, Kuras said that a garden was located "in the southeast corner of Tract 3," which, according to Kuras's survey, would place the garden well east of Area O.