Parkerson v. Brown
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Cite as 2010 Ark. App. 505
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CA09-871
GAIL PARKERSON
Opinion Delivered
APPELLANT
V.
JANET BROWN; THOMAS AND
BLANCHE CHOATE; HARLAN AND
MARY HANKINS
APPELLEES
June 16, 2010
APPEAL FROM THE GARLAND
COUNTY CIRCUIT COURT,
[NO. CV2007-499 III]
HONORABLE THOMAS LYNN
WILLIAMS, JUDGE
REVERSED AND REMANDED
WAYMOND M. BROWN, Judge
Gail Parkerson appeals from an order denying her motion to intervene in a titleconfirmation action filed by appellee Janet Brown. Brown petitioned the circuit court to
confirm title to land she bought at a tax sale, but she did not join Parkerson, who had an
easement over the property, or appellees Thomas and Blanche Choate, who owned part of
the property. The Choates eventually intervened in the action and executed a consent
judgment with Brown that divided the land between them. Parkerson discovered the consent
judgment and moved to intervene, but the circuit court denied her motion, leading to this
appeal. We reverse and remand with directions to allow Parkerson’s intervention.
Parkerson owns a lot in Hot Springs that has been in her family since the 1950s. The
lot is bordered on the east by Bayshore Drive and on the west by Lake Hamilton. Parkerson’s
Cite as 2010 Ark. App. 505
neighbors to the southwest are the Choates. Between the two lots is a triangular tract of land
whose owner has not been identified. In 1990, Parkerson filed suit in Garland County
Chancery Court claiming adverse possession of the tract. In a 1992 order, the chancellor
denied Parkerson’s claim but ruled that she and three other persons had an easement over the
majority of the property. The chancellor directed the Garland County tax assessor to
determine who owned and used the easement and to prorate the taxes accordingly. The
chancellor also quieted title in a portion of the property to the Choates’ predecessors, Samuel
and Phyllis Fullerton. The portion was described as the “real property evidenced by a line in
a southwesterly direction from the metal pin on the road to the end of the rock sea wall.”
The court’s order stated that the exact description of the Fullerton property and the disputed
easement would be established by a future survey. The record does not indicate that the
survey ever took place.
The county assessor attempted to follow the court’s order by listing Parkerson and
others as the owners of an easement, described on some records as Parcel 4688. According to
Parkerson, she duly paid her taxes on the parcel. In 1997, the Choates bought the Fullerton
property and commissioned a survey, which reflected their ownership of a strip of land along
their eastern border that was “obtained in Chancery Court No. 90-453-J.” The survey made
no findings regarding the easement.
At some point thereafter, the county assessor forfeited Parcel 4688 to the State Land
Commissioner for nonpayment of taxes. The assessor’s office would later acknowledge that
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Parkerson’s name was erroneously omitted from its tax records in 2001. In 2004, Janet Brown
bought Parcel 4688 at a tax sale for $5000, plus $101.31 in unpaid taxes. Nothing in the
record indicates that Parkerson was afforded notice of the tax delinquency or the tax sale. On
May 8, 2007, Brown filed a petition to confirm title to the property in herself. Despite having
a deed from the Land Commissioner that contained only a brief identification of the property,
Brown’s petition set forth a complete metes-and-bounds description that matched the
description of the tract at issue in the 1990 chancery case—the property over which Parkerson
obtained an easement and the Choates obtained partial ownership (through their predecessors,
the Fullertons). Brown named Harlan and Mary Hankins, who were listed in the tax records
on Parcel 4688, as defendants, but she did not name Parkerson or the Choates. She did,
however, publish notice of her petition in the newspaper once a week for four weeks as
required by law.1
The Hankinses did not respond to Brown’s petition, and the circuit court entered an
order confirming title in Brown, using the metes-and-bounds description in Brown’s petition.
Rather quickly, the Choates discovered Brown’s claim of ownership and moved to intervene.
The circuit court allowed the intervention and set aside the title-confirmation order. On May
22, 2008, Brown and the Choates entered into a consent judgment that essentially vested the
Choates with title to the land obtained by the Fullertons in the 1992 chancery order and
vested Brown with title to the remainder of the tract. Parkerson learned of the situation two
1
Ark. Code Ann. § 18-60-603(a)(2) (Supp. 2009).
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months later and moved to intervene, claiming an interest in the property by virtue of her
easement and adverse possession both before and after the 1992 decree. Parkerson asserted that
the failure to notify her of the tax-delinquency and title-confirmation proceedings deprived
her of due process; that Brown’s deed from the Land Commissioner lacked a valid
description; and that Brown made misrepresentations to the court in order to obtain title to
the parcel. She also submitted an affidavit stating that she was the only person who had used
and maintained the subject property following the 1992 order and that she had contacted the
assessor yearly since that time to ascertain her tax obligation and pay it in full. The circuit
court denied Parkerson’s motion to intervene, and this appeal followed.2
Upon a timely application, anyone shall be permitted to intervene in an action when
she claims an interest relating to the property or transaction that is the subject of the action,
and she is so situated that the disposition of the action may as a practical matter impair or
impede her ability to protect her interest, unless her interest is adequately represented by
existing parties.3 Intervention as a matter of right cannot be denied.4
A threshold requirement for intervention of right is a timely application.5 Timeliness
is to be determined from all of the circumstances in a case, and the trial court should consider
The denial of a motion to intervene is an appealable order. NW. Ark. Area Agency
on Aging v. Golmon, 70 Ark. App. 136, 15 S.W.3d 363 (2000).
2
3
Ark. R. Civ. P. 24(a)(2) (2010).
4
Midland Dev., Inc. v. Pine Truss, Inc., 24 Ark. App. 132, 750 S.W.2d 62 (1988).
5
Kelly v. Estate of Edwards, 2009 Ark. 78, ___ S.W.3d ___.
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Cite as 2010 Ark. App. 505
how far the proceedings have progressed; whether there has been any prejudice to other
parties caused by the delay; and the reason for the delay.6 Our courts are reluctant to grant
intervention after a final judgment is entered, but post-judgment intervention may be allowed
upon a strong showing of entitlement or a demonstration of unusual and compelling
circumstances.7
In this case, Parkerson makes a strong showing of both entitlement and unusual and
compelling circumstances. She owned an easement in property sold at a tax sale, and an
easement is an interest in land.8 Our case law has consistently recognized the importance of
a person with an interest in land being notified of and made a party to legal controversies
involving that land.9 It is also noteworthy that Parkerson’s late attempt at intervention was not
attributable to a lack of diligence on her part. The assessor’s office erroneously deleted her
from its tax rolls in 2001, which led to her not being officially notified of the 2004 tax sale
or the 2007 title-confirmation action. Moreover, Parkerson attempted to intervene
immediately upon learning of the situation. Under these circumstances, we see no reason why
Parkerson should be denied post-judgment intervention.
6
Id.
7
UHS of Ark. v. City of Sherwood, 296 Ark. 97, 752 S.W.2d 36 (1988).
8
Hatfield v. Ark. W. Gas Co., 5 Ark. App. 26, 632 S.W.2d 238 (1982).
See generally Koonce v. Mitchell, 341 Ark. 716, 19 S.W.3d 603 (2000); RWR Props.,
Inc. v. Mid-State Trust VIII, 102 Ark. App. 115, 282 S.W.3d 297 (2008); Williams v. Hall,
98 Ark. App. 90, 250 S.W.3d 581 (2007). See also Ark. R. Civ. P. 19 (joinder of necessary
parties).
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Parkerson also meets the other elements required for intervention under Rule 24(a)(2):
she claims an interest in the subject property through easement and adverse possession; her
interest was not represented by the existing parties, as shown by their execution of a consent
judgment that divided the property between them; and, as the owner of the easement and an
adverse claimant, she is so situated that the disposition of the title-confirmation case may, as
a practical matter, impair her ability to protect her interest. Appellees argue that Parkerson
lacks an interest in this case because her adverse-possession claim was denied in 1992 and is
thus barred by res judicata. However, res judicata requires a final judgment on the merits.10
Without conclusively deciding the issue—given that there may be facts we are not privy to
on this record—we note that the finality of the 1992 order is highly questionable. The order
directed the county assessor to determine the ownership and usage of the easement, thus
contemplating further action in the case, and the order failed to describe the easement or any
of the property involved with the requisite specificity, such that the property could be
identified solely by reference to the decree.11 The court ordered a survey, but there is no
indication that a survey was conducted pursuant to that order.12 Consequently, a distinct
10
Powell v. Lane, 375 Ark. 178, 289 S.W.3d 440 (2008).
11
See Petrus v. Nature Conservancy, 330 Ark. 722, 957 S.W.2d 688 (1997).
Id.; Greenway Land Co. v. Hinchey, 2010 Ark. App. 330 (holding that an order
was not final where the court intended to resolve the property description through a
future survey). Cf. Boyster v. Shoemake, 101 Ark. App. 148, 272 S.W.3d 139 (2008);
Jennings v. Burford, 60 Ark. App. 27, 958 S.W.2d 12 (1997) (determining that an order was
final where it referenced an already existing survey and simply required modification to
insert a more specific description).
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possibility exists that the order was not final, which diminishes the viability of res judicata as
a ground for denying Parkerson’s intervention. Furthermore, Parkerson’s adverse-possession
claim was based not only on her pre-1992 activities on the property but also on her activities
in the ensuing sixteen years following the entry of the 1992 order.13
Appellees also argue that the disposition of the present action will not, as a practical
matter, impair or impede Parkerson’s ability to protect her interest in the easement. They
point out that Parkerson could assert her easement in a separate lawsuit if a third party
interfered with her rights. We are not persuaded. Parkerson should be afforded the
opportunity to sort out her interests and the interests of other persons in Parcel 4688 now,
before time and other factors alter the status quo and diminish her rights through claims of
waiver or superior entitlement.14
For these reasons, we reverse and remand with orders to allow Parkerson’s
intervention. Parkerson asks that we quiet title in her to the subject property, but a ruling on
the merits of her claims would be premature at this point. Our decision is limited to
Parkerson’s right to intervene so that she may develop and try her issues in circuit court.15
Appellees urge that Parkerson abandoned her adverse-possession claim at a
hearing when her attorney allegedly conceded that the claim was barred by res judicata.
Our reading of the attorney’s remarks does not convince us that Parkerson made a definite
waiver of her adverse-possession claim.
13
14
We note, for example, that Brown has already sold her interest in the property.
Parkerson also asks us to hold that Brown’s failure to notify her of the titleconfirmation action deprived the circuit court of subject-matter jurisdiction. We decline
to do so, given that Brown published notice of her action as required by Ark. Code Ann.
§ 18-60-603(a)(2) (Supp. 2009). Cf. Koonce, supra (dismissing where the plaintiff failed to
15
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Cite as 2010 Ark. App. 505
Reversed and remanded.
KINARD and BAKER, JJ., agree.
meet any of the statutory requirements for notice of a quiet-title action).
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