Martin v. Bobo
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ARKANSAS COURT OF APPEALS
DIVISION I
No. CA-08-651
Opinion Delivered February
A.G. “BUD” MARTIN, JR.
11, 2009
APPELLANT
V.
APPEAL FROM THE HEMPSTEAD
COUNTY CIRCUIT COURT,
[NO. CV2005-47-2]
GUY BOBO & NELLIE BOBO
APPELLEES
HONORABLE DUNCAN
CULPEPPER, JUDGE
AFFIRMED
RITA W. GRUBER, Judge
Appellant A.G. “Bud” Martin, Jr., appeals from an order of the Hempstead County
Circuit Court granting summary judgment to appellees Guy and Nellie Bobo and quieting
title to certain lands in dispute in the Bobos. Appellant’s sole argument on appeal is that the
circuit court erred by quieting title in appellees because their claim to the disputed land was
barred by the doctrine of res judicata. We hold that the circuit court was correct in finding
that res judicata was not a bar to appellees’ quiet-title action, and therefore we affirm the
circuit court’s order.
The disputed land lies near the Red River, which separates Miller County from
Hempstead County. The land is referred to by the parties and in the circuit court’s order as
Tract No. 2 and is described as follows: All of that part of the East One-Half of the Northeast
Quarter (E½NE¼) of Section 30, Township 14 South, Range 25 West lying East of the
center of the Bois D’Arc Creek in Hempstead County.
In their motion for summary judgment to quiet title to Tract No. 2 in them, appellees
attached an affidavit showing continuous and exclusive adverse possession of Tract No. 2 for
over thirty years. They also provided evidence that neither appellant nor his predecessors in
title had ever made a claim to Tract No. 2. In response to the motion, appellant provided no
affidavit or other evidence to dispute or contradict the facts supporting appellees’ claim of
adverse possession. Rather, appellant contended that appellees’ claim was barred by the
doctrine of res judicata. Specifically, appellant argued that he and his predecessors in title,
Clinton D. Jones and his family, were involved in a quiet-title action with appellees in
Hempstead County Circuit Court in which the court quieted title in the Jones family to the
land in dispute in this case.
In a letter opinion dated June 9, 2004, the circuit court described the following land
as the “areas in dispute” in the previous case:
Part of the Southwest Quarter and part of the Northwest Quarter of Section
29, the East One-Half Southeast Quarter of Section 30, and part of the East
One-Half Northeast Quarter, Section 31 are the areas in dispute. Specifically
the area west of the dotted line running through these areas which is ear
marked as encroachment area on the Bud Martin property survey by James
Cole is the area of dispute.
The court then entered an order quieting title to the following described property in the Jones
family, which we note is the precise description used in the deeds through which the Jones
family acquired the property:
TRACT 1: The South Half of Section 29, containing 318 acres, more or less;
the fractional East Half of the Southeast Quarter of Section 30, containing
53.41 acres, more or less, the fractional East Half of the Northeast Quarter of
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Section 31, containing 64.66 acres, more or less, and the North Half of Section
32, containing 320 acres, more or less, all the lands above described being
situated in Township 14 South, Range 25 West, and containing in the
aggregate 756.07 acres, more or less...
TRACT 2: The Northeast Quarter and fractional Northwest Quarter, all in
Section 29, Township 14 South, Range 25 West, and containing 266 acres,
more or less, together with all accretions thereto . . ..1
Appellant argued that TRACT 2, described in the prior litigation, was the same land
that was in dispute in this case. Because the East One-Half of the Northeast Quarter of
Section 30—in dispute in this case—is immediately west of and formed by accretion to the
Northeast Quarter and fractional Northwest Quarter, all in Section 29—in dispute in the
prior litigation—appellant argued that the language “together with all accretions thereto” used
in the prior litigation referred to and included the property in the East One-Half of the
Northeast Quarter of Section 30.
The circuit court in this case rejected appellant’s argument, finding that Tract No. 2,
in dispute in this case, was not included in the prior litigation but was contiguous to Section
29, which was involved in the prior litigation. The court also found that no claims of
ownership by record title or accretion were made by appellant or the Jones family in the prior
litigation to the land in dispute in this case. Noting that appellant presented no evidence to
dispute or contradict the facts supporting appellees’ claim of adverse possession, the court held
that no genuine issue of material fact existed and granted appellees’ motion for summary
judgment, quieting title to Tract No. 2 in appellees.
1
The supreme court affirmed the circuit court’s order in Bobo v. Jones, 364 Ark.
564, 222 S.W.3d 197 (2006).
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The sole issue on appeal is whether the circuit court erred in failing to apply the
doctrine of res judicata in this case. Ordinarily, upon reviewing a court’s decision on a
summary-judgment motion, we would examine the record to determine if genuine issues of
material fact exist. However, in a case like this one that does not involve the question of
whether factual issues exist but rather the application of the legal doctrine of res judicata, we
simply determine whether appellees were entitled to judgment as a matter of law. Ruth R.
Remmel Revocable Trust v. Regions Fin.Corp., 369 Ark. 392, 402, 255 S.W.3d 453, 461 (2007).
The doctrine of res judicata consists of two facets: issue preclusion, which is often
referred to as collateral estoppel, and claim preclusion, which appellant is claiming applies in
this case. See Beebe v. Fountain Lake School Dist., 365 Ark. 536, 231 S.W.3d 628 (2006).
Claim preclusion bars the relitigation of a subsequent suit when five elements are met: (1) the
first suit resulted in a final judgment on the merits; (2) the first suit was based on proper
jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involve the same
claim or cause of action; and (5) both suits involve the same parties or their privies. Council
of Co-Owners for Lakeshore Resort & Yacht Club Horizontal Prop. Regime v. Glyneu, LLC, 367
Ark. 397, 401, 240 S.W.3d 600, 604 (2006). The critical element in dispute in this case is
whether both suits involve the same claim or cause of action.
Appellant argues on appeal that TRACT 2 from the prior litigation is the same
property that is in dispute in this case. Specifically, he contends that the language from the
prior order, “all accretions thereto,” refers to any property west of the Northeast Quarter and
fractional Northwest Quarter of Section 29. Because the property in dispute in this case is
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west of this property, he claims it is an accretion to Section 29 and was quieted in the Jones
family in the prior litigation. He asserts that a review of the original government survey for
Section 29 demonstrates that there was no such thing as a Section 30 in Hempstead County,
and that the Red River originally cut through Section 29, resulting in a fractional quarter
section described as the fractional Northwest Quarter of Section 29. He argues that Section
30 existed only in Miller County. He contends that the gradual move by the Red River to
the west led to the accretions to Section 29, which the circuit court quieted in the Jones
family in the prior litigation. Thus, he argues, any lands formed to the west of the original
fractional Northwest Quarter of Section 29 are “accretions thereto” and included in the prior
decree.
The parties do not dispute that accretion is the gradual deposit and addition of soil
along the bank of a water body caused by the gradual shift of the water body away from the
accreting bank. Swaim v. Stephens Prod. Co., 359 Ark. 190, 196 S.W.3d 5 (2004). Nor do
the parties challenge whether the property in dispute is accreted land. There is also no dispute
that the accretion was not recent and that appellees have been in adverse possession of this
“accreted” land for over thirty years. The dispute is whether “[a]ll of that part of the East
One-Half of the Northeast Quarter (E½NE¼) of Section 30, Township 14 South, Range 25
West lying East of the center of the Bois D’Arc Creek in Hempstead County” is the same
property described by—and thus the same claim or cause of action as—“[t]he Northeast
Quarter and fractional Northwest Quarter, all in Section 29, Township 14 South, Range 25
West, and containing 266 acres, more or less, together with all accretions thereto” for
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purposes of res judicata.
The United States System of Surveying the Public Lands, enacted in 1785 and
modified since by various acts of Congress, divides land across the United States into
townships that are six miles square running along north-south and east-west lines. Charles
B. Breed & George L. Hosmer, The Principles and Practice of Surveying, Volume I. Elementary
Surveying 120-21 (3d ed. 1908); see also Journals of the Continental Congress, Volume XXVIII
(J.C. Fitzpatrick ed., 1933-34). Each Township is then divided into thirty-six sections. A
section is a mile square and contains 640 acres, more or less. American Law of Property, Vol.
III § 12.100 (Little, Brown & Company 1974). Sections do not always fall completely within
one county, or even one state, but may exist on both sides of a county or state border. See
Alphin v. Banks, 193 Ark. 563, 102 S.W.2d 558 (1937). In Alphin, the court indicated that
many sections along the southern boundary of Arkansas are fractional because the north
portion of the sections are in Arkansas and the south portion of the sections are in the State
of Louisiana. See also Black v. Clary, 235 Ark. 1001, 363 S.W.2d 528 (1963) (parts of several
sections in dispute lay in Lafayette County and parts in Miller County, divided by the Red
River).
We reject appellant’s argument that Section 30 does not exist in Hempstead County.
The Red River moved west. Indeed, this is the reason appellant’s predecessors acquired land
by accretion in the prior litigation. While most of Section 30 may have existed in Miller
County in 1819 at the time of the original government survey referred to by appellant in his
brief, this is no longer the case, as is evidenced by the surveys used as exhibits in the prior
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litigation, including the survey designated “Bud Martin Property Survey.” All of the surveys
include part of Section 30 in Hempstead County. The “Jones Property Survey” actually
depicts the East One-Half of the Northeast Quarter of Section 30 as the “Guy Bobo” land.
Finally, the circuit court’s order in the prior case quieted title in the Jones family, appellant’s
predecessor in title, to “the fractional East Half of the Southeast Quarter of Section 30,
containing 53.41 acres, more or less.” This order, including the circuit court’s underlying
determination that the property was located in Hempstead County, was affirmed by our
supreme court. Bobo, 364 Ark. at 568, 222 S.W.3d at 201.
The property in dispute in this case is in Section 30, not in Section 29. Whether the
property is an accretion and whether appellant might have had some claim to the land under
that theory is not at issue in this case. He has not disputed appellees’ claim of adverse
possession of the disputed property. The East One-Half of the Northeast Quarter of Section
30 was not in dispute in the prior litigation. The doctrine of res judicata applies against a
party only when both suits involve the same claim or cause of action and the party had a fair
and full opportunity to litigate the issue in question. Carwell Elevator Co., Inc. v. Leathers, 352
Ark. 381, 389, 101 S.W.3d 211, 217 (2003). We hold that, for purposes of res judicata,
property located in Section 30 is not sufficiently described by the language “and accretions
thereto” to property located in Section 29 and that appellees did not have a fair and full
opportunity to litigate their claim in the prior case to the property in dispute in this case.
Therefore, the doctrine of res judicata is not applicable in this case; accordingly, we affirm the
order of the circuit court.
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Affirmed.
V AUGHT, C.J., and R OBBINS, J., agree.
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