Vickie Lynn Hall Bridges v. Curtis Bridges and Laverne Bridges, Husband and Wife

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ca05-301

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CA05-301

September 28, 2005

VICKIE LYNN HALL BRIDGES AN APPEAL FROM JEFFERSON

APPELLANT COUNTY CIRCUIT COURT

[CIV03-750-1]

V. HON. BERLIN JONES, JUDGE

CURTIS BRIDGES and LAVERNE REVERSED AND REMANDED

BRIDGES, Husband and Wife

APPELLEES

Wendell L. Griffen, Judge

Vickie Bridges appeals from a summary-judgment order granted in favor of appellees, Curtis and Laverne Bridges, who are the parents of appellant's deceased husband, Gary Bridges. Appellant filed a petition to quiet title certain property, which she claimed appellees had given to her and Gary, or which, alternatively, she claimed by adverse possession. Appellees countered with a motion for summary judgment asserting, inter alia, that appellant failed to demonstrate a genuine issue of disputed fact with regard to her adverse possession of the property. The court granted appellees' motion and dismissed the case with prejudice. Appellant argues that the trial court erred because genuine issues of material fact remain with regard to whether her possession of the property was permissive. We agree. Accordingly, we reverse and remand for trial.

Appellant lives on property that is adjacent to appellees' property. In 1980, appellees conveyed this property to appellant and Gary via a warranty deed. The same year, appellant and Gary built a home and a driveway on the property. They added a carport in 1991, which extended 7.2 feet onto appellees' property. Curtis helped Gary to build the carport and was aware that it extended beyond the western boundary of appellees' property. Gary died in 1999.

The property at issue in this case includes a strip of land not included in the 1980 conveyance on which the driveway and carport sit. The driveway measures approximately thirty-five feet wide by 252 feet in length. In addition, the disputed property extends around to the back of appellant's property.1

Appellant filed a petition to quiet title the property on October 3, 2003, asserting that in 1991, appellees "verbally gave" to appellant and Gary the property between the western boundary in her deed to the back fence which encloses the barn built by appellant, Gary, and their son. She further asserted that at all times she and her family used the property as their own, improved the property by installing utilities, maintained the property by fertilizing and mowing the grass, and used the property for recreational purposes. With regard to the driveway, appellant asserted that she and Gary installed the driveway by putting in a culvert and spreading gravel approximately 252 feet to the back fence. She further claimed that she continually used the driveway and made improvements by planting shrubs and flowers and adding a decorative fence at the corner.2

Appellees filed a response to appellant's petition to quiet title and also filed a motion for summary judgment. They alleged, inter alia, that appellant's possession had been permissive and that she failed to establish the stronger proof necessary to show adverse possession against family members.3

Appellant responded that appellees gave her and Gary the property in 1992 (not 1991, as she alleged in her petition to quiet title). She stated that Curtis's knowledge that the carport was being built on the property belies appellees' claim that the land was not adversely held against them. Appellant also reiterated that she had possessed and improved the land. She maintained that her claim was adverse to appellees' claim "because of time and the fact that no deed was delivered."

The court treated as true appellant's assertions regarding the manner in which she had possessed and used the land. However, the court ultimately granted appellees' motion for summary judgment because: 1) appellant's counsel asserted that she would present witnesses from the community to testify regarding the use of the land, but offered no affidavits from persons in the community to support that testimony; 2) even accepting as true appellant's assertions regarding her usage of the land, she did not prove that usage was exclusive and hostile against appellees, in that she failed to demonstrate the stronger showing of hostile possession required to be shown against family members. We agree with appellant that summary judgment was improper because genuine issues remain as to whether appellant's use of the property was permissive.

Summary judgment is to be granted only when it is clear that there are no genuine issues of material fact, and that the moving party is entitled to judgment as a matter of law. Ark. R. Civ. P. 56(c); Crawford v. Lee County Sch. Dist., 64 Ark. App. 90, 983 S.W.2d 141 (1998). In considering a motion for summary judgment, this court views the facts in the light most favorable to the party against whom the judgment is sought and draws all inferences against the moving party. Crawford, supra. Once a moving party establishes prima facie entitlement to summary judgment by affidavits, depositions, or other supporting documents, the opposing party must meet proof with proof and demonstrate the existence of a genuine issue of material fact. Id.

We hold that genuine issues of material fact remain with regard to whether appellant established adverse possession under the common law requirements. Appellees, as movants, were required to show that no genuine issue of material fact existed as to whether appellant had been in possession of the property in question continuously for more than seven years and whether any such possession was visible, notorious, distinct, exclusive, hostile, and with the intent to hold against the true owner. Robertson v. Lees, ___ Ark. App. ___, ___S.W.3d. ___ (June 30, 2004).

It is ordinarily sufficient that the acts of ownership are of such a nature as one would exercise over her own property and would not exercise over that of another, and that the acts amount to such dominion over the land as to which it is reasonably adapted. Id. However, stronger evidence of adverse possession is required in cases where a family relationship exists than is necessary where no such relationship is present. Id. The reason for this rule is that, as between parties with family relations, the possession of the land of one by the other is presumptively permissive or amicable, and, to make such a possession adverse, there must be some open assertion of hostile title, other than mere possession, and knowledge thereof brought home to the owner of the land. Id.

Moreover, if the original use and possession is permissive, it cannot become adverse until notice of the hostility of the possessor's holding has been brought home to the owner by actual notice or by a holding so open and notorious as to raise a presumption of notice equivalent to actual notice; the evidence of adverse holding when the original entry is by permission must be very clear. Rickett v. O'Dell, 86 Ark. App. 86, 160 S.W.3d 717 (2004). When possession, in its incipiency, is shown to be permissive, there is a presumption of law that the subsequent possession of the same party is also permissive. Id.

Here, there seems to be no dispute as to the manner in which the property was used, only whether that possession was permissive or hostile. Summary judgment was inappropriate here, in short, because in the absence of affidavits, the parties were merely engaged in a swearing contest based on their contrary pleadings. Whether Curtis made an oral declaration of a gift is disputed in the parties' pleadings, as are appellant's acts of ownership concerning the property. Instead of construing the reasonable inferences from these disputed facts against appellees, as movants, the trial court "accepted" as true appellant's assertions regarding how she used the property, but improperly construed her conduct as permissive, despite pleadings indicating the contrary. Additionally, the trial court improperly faulted appellant for not supporting her claims by affidavit; she was not required to produce any affidavits because appellees failed to produce any in their motion for summary judgment. Ark. R. Civ. P. 56. Finally, the parties' pleadings demonstrate that genuine issues of material fact remain with regard to whether appellant's possession was permissive or hostile during the requisite statutory period.

Whether Curtis made an oral declaration that the land was to be a gift goes to whether the initial use of the land was permissive. Thus, genuine issues of fact remain with regard to whether the initial usage was permissive or hostile; when or if appellant's acts of ownership ever rose to the level of putting family members on notice of the same; and when or if the common law seven-year statutory period began to run. Therefore, summary judgment was not proper.

Reversed and remanded for trial.

Robbins and Crabtree, JJ., agree.

1 It is not clear from the record how much property was at issue. Appellant states in her brief to this court that if appellees gave her the land back to the fence, it would extend her land "a little over 90 feet east." The trial court orally indicated that "[T]he court does not know how far it is from the carport to the back fence."

2 Appellant also requested and was granted a restraining order to prevent appellees from damaging the driveway during the pendency of these proceedings. The order further granted appellees use of the driveway to access certain of their property that lies at the rear of the driveway. Neither party challenges this order on appeal.

3 Appellees also alleged that any attempted oral gift of land violated the Statute of Frauds, pursuant to Ark. Code Ann. § 4-59-101(a)(4) (Repl. 2001), which requires that an agreement concerning an interest in land must be in writing. They further alleged that because appellant never received a deed for the disputed land, she did not have color of title to that land, as required to establish adverse possession under Ark. Code Ann. § 18-11-106 (a)(2) (Repl. 2003). Appellant countered that the adverse possession statute cited by appellees did not require her to pay taxes on the disputed land, but on her land. The trial court agreed with appellees that any oral gift violated the Statute of Frauds because it was not evidenced by a writing, but agreed with appellant that § 18-11-106(a)(2) requires a claimant to show that he paid taxes on his own land, not the disputed land.

The only argument advanced on appeal with regard to these findings is appellant's assertion that appellees were not entitled to summary judgment because they relied on the wrong law. However, this argument is misplaced because the trial court agreed that appellees misinterpreted § 18-11-106. Regardless, the trial court did not rely on that statute in granting summary judgment; instead, it relied on appellant's failure to demonstrate entitlement to proceed under the common law requirements for establishing adverse possession. Accordingly, our review is limited to whether there remained a genuine issue of material fact regarding the common law requirements of adverse possession, namely, permissive use.