J. Michael Enterprises, Inc. v. Robert Oliver
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DIVISION IV
CA07537
DECEMBER 19, 2007
J. MICHAEL ENTERPRISES, INC.
APPELLANT
AN APPEAL FROM BENTON COUNTY
CIRCUIT COURT
[No. CV 20066003]
v.
HONORABLE JAY FINCH,
CIRCUIT JUDGE
ROBERT OLIVER
APPELLEE
AFFIRMED
J. Michael Enterprises, Inc. (JME), brings this appeal from a judgment of the Benton
County Circuit Court quieting title to thirtynine acres in appellee Robert Oliver. The court
also awarded Oliver $2,500 in punitive damages and $5,000 in attorney’s fees. JME raises
three points on appeal in which it challenges the quieting of title in Oliver on the basis that
Oliver had not paid the taxes on the property for seven years and that the tax deed to Oliver
contained an invalid description, as well as the award of punitive damages. Finding no merit
in any of these points, we affirm.
Stipulated Background Facts
In 1964, Paula Weir took title by warranty deed to forty acres described as the
Southeast Quarter of the Northeast Quarter of Section 9, Township 18 North, Range 29
West, in Benton County. In 1965, Weir had a survey conducted which carved a oneacre
tract out of the fortyacre tract. Weir and her husband executed a deed of trust to the oneacre
tract. The deed of trust was foreclosed by the lender and the lender purchased the oneacre
tract at the foreclosure sale. In 1970, Lulu Woodington purchased the oneacre tract from the
lender. In July 1996, Woodington filed suit against Weir seeking to quiet title to the oneacre
tract. A decree quieting title in Woodington was entered in August 1996, and an amended
order was entered on September 23, 1996. The description in the decree was different from
the 1965 survey description.
In 1987, Weir successfully sued to set aside an earlier tax sale of the thirtynineacre
tract on the basis of an improper tax sale. The complaint alleged that the legal description
was improper and that the proceedings to quiet title after the tax sale were defective in that
Weir was not made a party to those proceedings.
Weir failed to pay the property taxes on the property after 1989, and the property was
forfeited to the State of Arkansas. In November 1996, Oliver received a tax deed to the
thirtynineacre tract. The description of the property contained in the tax deed was “SE 1/4
NE 1/4 EXC 1 A NW1/4 PT,” together with references to the appropriate section, township,
and range as shown by the notation “9 18N 29W.” In January 1997, Oliver and Woodington
exchanged quitclaim deeds in which each quitclaimed his or her interest in the other’s
property. In other words, Woodington quitclaimed whatever interest she had in the thirty
nineacre tract to Oliver, and he did the same in regards to the oneacre tract. Woodington
then conveyed the oneacre tract to Eric Cabledue by warranty deed also recorded on January
2, 1997. On December 1, 2005, Weir and her husband each executed quitclaim deeds to the
entire fortyacre tract to JME. The deeds were recorded on December 5, 2005.
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Oliver filed suit seeking to quiet title to his thirtynine acre tract. He asserted that he
had paid the taxes on the property for more than seven years under color of title. The
complaint also asserted that JME’s action in obtaining and recording the quitclaim deeds
from the Weirs was a violation of Ark. Code Ann. § 537226 (Supp. 2007) and sought treble
actual and punitive damages as provided by that section. JME answered, denying the
material allegations of the complaint. JME also filed a counterclaim in which it sought a
declaratory judgment that the tax deed to Oliver was invalid based on the legal description
being legally insufficient.
The Evidence
At trial, Oliver testified that he had paid all of the property taxes owed on the thirty
nineacre tract since he purchased the property at the tax sale. Oliver also said that he paid
the back taxes owed on the property. Both Oliver and Eric Cabledue testified that the
exchange of deeds between Oliver and Lulu Woodington was necessitated when Woodington
was attempting to sell her oneacre tract to Cabledue and it was discovered that the
description of her tract was incorrect. Cabledue said that he had paid all of the taxes on his
property since he acquired it. Cabledue also considered the quitclaim deeds executed by
Paula Weir and her husband to JME to be a cloud on his title.
Title examiner Phil Bronson testified that, after the exchange of quitclaim deeds
between Oliver and Woodington, he issued a title insurance policy for Woodington’s
conveyance to Cabledue. He also said that he relied on assessment cards and other records
showing the assessment and payment of taxes on property. According to Bronson, the
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records show that Oliver was paying the taxes on thirtynine acres of the fortyacre tract. On
crossexamination, he acknowledged that he could not tell from the legal description of the
tax deed or the information in the Assessor’s Office where Cabledue’s oneacre tract was
located within the forty acres. He asserted that the same legal description on Oliver’s tax
deed and the records in the Assessor’s Office describe two different thirtynineacre tracts
because of the changed description of the excepted oneacre tract.
Thurstle Mullen, the president and sole stockholder in JME, testified that JME does
not have any specific business and that he purchases property in the corporate name. He
described JME as a shell company that owns real estate. Mullen said that he prepared the
deeds that the Weirs executed to convey their interest to JME after he determined that the
tax deed to Oliver did not describe any lands. He acknowledged that he was unaware of
Cabledue’s ownership of the oneacre tract when he obtained the quitclaim deeds from the
Weirs. Mullen also could not say that he had researched the tax assessment records before
obtaining the quitclaim deeds. He said that, when he did his research, the records showed
that Oliver was paying taxes on thirtynine acres of the fortyacre tract but not which thirty
nine acres.
Shirley Sandlin, the recently retired Benton County Assessor, testified that the
assessor’s office keeps records on maps and cards and that any parcel within the county can
be located. She said that the card for the fortyacre tract shows the exchange of deeds
between Oliver and Woodington and that the entire fortyacre tract has been assessed in the
names of either Oliver or Cabledue since 1997. She said that the Oliver and Cabledue tracts
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cannot be confused with each other. Sandlin had used the legal description contained in the
deed from Woodington to Oliver in assessing Oliver’s property. She described the problem
as being with only ten acres in the northeast portion of the fortyacre tract. She added that
Oliver’s legal description never changed on the card in the assessor’s office because all of
Oliver’s land is located within the quarterquarter description.
Greg Hoggatt, the Tax Collector for Benton County, testified that both Oliver and
Cabledue had paid the taxes on their respective parcels since 1997. He said that Oliver’s tax
sale purchase included paying the taxes owed for the years 1990 through 1995.
The Circuit Court’s Ruling
The circuit court ruled from the bench and found that Oliver had met his burden of
proving his title. The court noted that the parcel number could have been used to obtain the
history for the entire fortyacre tract and its correct description. The court also found that
both the tax deed and the quitclaim deed from Woodington to Oliver constituted color of title
for Oliver and that Oliver had paid the property taxes for more than seven years.
On January 17, 2007, Oliver filed a motion pursuant to Ark. Code Ann. § 537226(a)
(Supp. 2007). That statute makes it unlawful to file any instrument of record clouding or
affecting the title or interest of the true owner with the intent of clouding the title or
procuring money from the true owner. Under subsection (c), an owner who brings suit to
remove the cloud from his title is entitled to three times actual damages, punitive damages,
and costs, including attorney’s fees. JME filed a response to the motion.
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In its written judgment entered on January 31, 2007, the circuit court, in addition to
the findings relative to quieting title in Oliver, found that JME procured the quitclaim deeds
from the Weirs for the purpose of obtaining money from Oliver and awarded Oliver $2,500
in punitive damages and $5,000 in attorney’s fees. On March 1, 2007, JME filed a motion
to modify the judgment pursuant to Ark. R. Civ. P. 60, as well as a notice of appeal from the
judgment. On March 30, 2007, the circuit court entered an amended judgment. JME filed an
amended notice of appeal on April 9, 2007.
Standard of Review
Quiet title actions have traditionally been reviewed de novo as equity actions. City of
Cabot v. Brians, 93 Ark. App. 77, 216 S.W.3d 627 (2005). However, we will not reverse the
circuit court’s findings in such actions unless the findings are clearly erroneous. See 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.
Arguments on Appeal
JME’s first and second points, which we address together, are that the circuit court
erred in quieting title in Oliver because the legal description contained in the tax deed to
Oliver was insufficient, and that, because of the indefiniteness of the description, Oliver
could not rely on either the tax deed or the quitclaim deed from Woodington as color of title.
We disagree.
A tax deed is sufficient if the description itself furnishes the key through which the
land might be definitely located by proof aliunde. Liggett v. Church of Nazarene, 291 Ark.
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298, 724 S.W.2d 170 (1987). A tax deed may be declared invalid for want of a sufficient
legal description of the land involved. Payton v. Blake, 362 Ark. 538, 210 S.W.3d 74 (2005);
see also Gardner v. Johnson, 220 Ark. 168, 246 S.W.2d 568 (1952) (invalidating a deed
containing the description: “SW corner NE 1/101 N.Y. 63, 4 NE 1/4 Section 1, Township
7 North, Range 4 West, 5 acres E of R”); Sutton v. Lee, 181 Ark. 914, 28 S.W.2d 697 (1930)
(recognizing as invalid the description: “Parts of lots 3 and 4 in block 36 in the city of Hot
Springs, Arkansas”); Walls v. Mills, 149 Ark. 670, 225 S.W. 225 (1920) (invalidating a deed
containing the description: “Pt. NW NW Section 7 Township 12 S, Range 29 W. 11.16
acres”). Unlike the cases cited above, the description here is sufficient because Oliver owns
thirtynine of the forty acres in the quarter quarter and the question is the location of the one
acre he does not own. That can easily be determined by reference to the records in the
assessor’s office. Therefore, the tax deed could properly be considered color of title.
In its argument directed to the Woodington deed to Oliver as color of title, JME relies
on Bailey v. Jarvis, 212 Ark. 675, 208 S.W.2d 13 (1948), and Weast v. Hereinafter
Described Lands, 33 Ark. App. 157, 803 S.W.2d 565 (1991), for the proposition that one
cannot “manufacture” color of title. Those cases have no application here because the
exchange of deeds between Woodington and Oliver was necessary to align the legal
description of Woodington’s property with its actual placement on the ground, as shown by
exhibit 22. The Woodington quitclaim to Oliver contains proper metesandbounds
descriptions of both the fortyacre tract and the oneacre tract belonging to Cabledue.
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JME also argues that, because the descriptions in Oliver’s and Cabledue’s deeds are
insufficient, Oliver cannot prove the exact thirtynine acres on which he has been paying the
property taxes. However, the testimony was that the description contained in the exchange
of quitclaim deeds has been used to assess the property since 1997 and that the taxes have
been paid on this assessment since that time.
In JME’s third and final point, it argues that the circuit court erred in awarding Oliver
$2,500 in punitive damages and $5,000 in attorney’s fees, pursuant to Ark. Code Ann. § 5
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37226(a). Section 537226(a) requires a twoprong test: first, that the instrument be filed
with knowledge that it is not genuine or authentic and, second, that the filing is with the
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Section 537226(a) provides:
(a) It is unlawful for any person with the knowledge of the instrument’s lack
of authenticity or genuineness to have placed of record in the office of the recorder
of any county any instrument:
(1) Clouding or adversely affecting:
(A) The title or interest of the true owner, lessee, or assignee in real
property; or
(B) Any bona fide interest in real property; and
(2) With the intent of:
(A) Clouding, adversely affecting, impairing, or discrediting the title or
other interest in the real property which may prevent the true owner,
lessee, or assignee from disposing of the real property or transferring
or granting any interest in the real property; or
(B) Procuring money or value from the true owner, lessee, or assignee
to clear the instrument from the records of the office of the recorder.
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intent either to cloud or adversely affect the owner’s interest in the property or with the intent
to procure money from the owner in order to clear the title. JME argues that neither prong
has been met and that Oliver offered no proof of his actual damages and, therefore, an award
of punitive damages is improper. The circuit court made an express finding that JME
obtained the quitclaim deeds from the Weirs for the purpose of obtaining money from the
true owner. The court did not make a finding that the instrument was filed with knowledge
that it was not genuine or authentic. However, such a finding was implicit when the court
awarded punitive damages pursuant to section 537226. Also, both findings are supported
by the evidence that JME prepared the quitclaim deeds to the entire forty acres, despite the
one acre having been carved out in 1965; that JME was simply a shell company; and that
there were no revenue stamps on its quitclaim deeds. Arkansas Code Annotated section 26
60110(b) provides, subject to exceptions not applicable here, that no instrument evidencing
a transfer of title shall be recorded without the attachment of the revenue stamps. Further,
the letter attached to Oliver’s complaint implies that JME was seeking money from Oliver
in order to clear Oliver’s title.
Oliver did not offer any proof as to his loss or damages during the trial; he did offer
an affidavit stating the amount of attorney’s fees he incurred in prosecuting the suit. JME,
citing Hale v. Ladd, 308 Ark. 567, 826 S.W.2d 244 (1992), argues that an award of punitive
damages without an award of compensatory damages cannot stand. However, that rule has
no application in the present case because the award was not based on a commonlaw cause
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of action; rather, it was based on a statutory remedy. As such, the circuit court could have
awarded punitive damages without first having awarded compensatory damages.
Affirmed.
PITTMAN, C.J., and ROBBINS, J., agree.
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