Hunt v. Entergy Ark
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Cite as 2010 Ark. App. 651
ARKANSAS COURT OF APPEALS
DIVISION II
CA 09-633
No.
DAYLAN HUNT and JERRI N. &
JAMES L. HUNT, Co-Trustees of THE
HUNT FAMILY TRUST
APPELLANTS
Opinion Delivered September
29, 2010
APPEAL FROM THE GARLAND
COUNTY CIRCUIT COURT
[NO. CV-2007-144-11]
V.
HONORABLE VICKI S. COOK,
JUDGE
ENTERGY ARKANSAS, INC.
APPELLEE
AFFIRMED
WAYMOND M. BROWN, Judge
This is a dispute between the Hunt family and Entergy Arkansas, Inc., over property
in Garland County. After the Hunts saw Entergy employees surveying the disputed tract, the
Hunts filed a petition to quiet title. Entergy filed a motion for summary judgment, which was
later granted by the circuit court. The Hunts assert that there remains a genuine issue of
material fact on whether they had adversely possessed part of Entergy’s property. They also
argue that the circuit court erred in refusing to set aside the grant of summary judgment in
light of an agreement between the parties to extend the time for filing a response to Entergy’s
summary-judgment motion. We ordered the Hunts to rebrief the case, as their original brief
did not comply with our rules.1 Now that they have filed a conforming brief, we hold that
1
See Hunt v. Entergy Arkansas, Inc., 2010 Ark. App. 351.
Cite as 2010 Ark. App. 651
the Hunts failed to raise a genuine issue of material fact regarding whether they possessed the
disputed tract adversely to Entergy’s interest. Therefore, we affirm.
The disputed land is below what the parties have referred to as the 324 contour line,
where the property is at 324 feet above mean sea level. The property originally belonged to
the Storthz family. In 1930, the Storthzes conveyed the property up to the 324 contour line
to the Arkansas Power and Light Company (“AP&L”), Entergy’s predecessor. The rest of the
property was later conveyed to the Toler family. The Tolers’ warranty deed specifically
excluded the property that was conveyed to AP&L. The Tolers conveyed the property to the
International Land Corporation, which in 1976 filed a bill of assurance to create the Lake
Catherine Lake View Estates. Deeds from the Tolers to International Land, the bill of
assurance, and a 2003 amendment to the bill of assurance reference the 324 contour line.
The Hunts claim ownership of and have paid taxes on Lots 39, 43, 44, 45, and 46 in
the subdivision. A plat of the subdivision shows these lots crossing the 324 contour line. The
Hunts filed a petition to quiet title after Entergy claimed ownership of the disputed tract. In
September 2008, Entergy filed a summary-judgment motion, alleging that the Hunts did not
have record title to any property below the 324 contour line and that they had not adversely
possessed any property below that line. Entergy attached the deeds showing that the
subdivision was not supposed to include property below the 324 contour line. It also
presented two plats of the Lake Catherine Lake View Estates, but one of the plats shows Lots
39, 43, 44, 45, and 46 extending across the 324 contour line.
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Cite as 2010 Ark. App. 651
Entergy also relied on deposition testimony from Daylan Hunt and James Hunt.
Daylan testified that when he purchased his property in 2001, he thought that his property
extended past the 324 line. He acknowledged that his home was not located on what was
actually Entergy’s deeded property, but he stated that he and his family used property below
the 324 line for recreation and crossed it to get to the nearby creek. Daylan also stated that
he maintained the property, including mowing, weed-eating, and debugging.
James Hunt also testified that he thought the Trust owned property past the 324 line,
though he was informed that he could not build a permanent structure below the 324 line.
Thus, he has not constructed any structures in that area. He stated that he cleared a path on
the property to allow a vehicle to pass through, but the record does not reveal the specific
location of the path. James has a boat dock on the main channel of Lake Catherine, but he
received a permit from Entergy for the dock.
On December 15, 2008, the court instructed Entergy to draft an order granting the
motion for summary judgment, as the Hunts had not responded to the motion. The Hunts
filed a response three days later. The circuit court entered the order granting summary
judgment on January 5, 2009. The Hunts filed a motion to set it aside. But the court denied
the motion, stating that after reviewing the motion and the Hunts’ response to Entergy’s
original motion, it did not find an issue of material fact that would warrant setting the
summary-judgment order aside. This appeal followed.
Though it is their second point on appeal, we address the Hunts’ argument that the
court should have set aside the summary-judgment order first. In so arguing, the Hunts rely
3
Cite as 2010 Ark. App. 651
on portions of the record that show that the parties agreed to an extension of time for the
Hunts to respond to the order.
But even assuming that the parties could, without the court’s consent, extend the time
for responding to a motion for summary judgment,2 this does not warrant reversal. In the
order denying the motion to set aside, the court stated that it reviewed the Hunts’ response
to the motion for summary judgment. Assuming that summary judgment was in order here,
the record reflects that the circuit court properly reviewed the exhibits and arguments
presented before ultimately ruling in favor of Entergy.
All that is left for us to consider are the merits of the motion. The Hunts urge this
court to reverse because the record shows that they at least believed that they had title to
property below the 324 contour line. Entergy was entitled to summary judgment only if the
pleadings, depositions, answers to interrogatories, responses to requests for admission, and
affidavits show that there was no genuine issue of material fact to be litigated and that it was
entitled to judgment as a matter of law.3 On appellate review, we must determine if summary
judgment was proper based on whether the evidence presented by the moving party left a
material question of fact unanswered, viewing the proof in a light most favorable to the party
2
See Ark. R. Civ. P. 56(c)(1) (allowing twenty-one days to respond to a motion for
summary judgment and allowing the court to reduce or enlarge that period for good cause
shown).
3
See Windsong Enters., Inc. v. Upton, 366 Ark. 23, 233 S.W.3d 145 (2006).
4
Cite as 2010 Ark. App. 651
resisting the motion and resolving any doubts and inferences against the moving party, to
determine whether the evidence presented left a material question of fact unanswered.4
Entergy had record title to the property below the 324 line. The earliest deeds show
that its predecessor in interest was granted the property, and subsequent deeds and bills of
assurance maintain this ownership. Therefore, the only way the Hunts could defeat Entergy’s
motion for summary judgment is to present some proof that they adversely possessed the
disputed property.
To establish adverse possession, the Hunts had to establish both statutory and commonlaw requirements.5 We only address the common-law requirements, as we hold that they have
not been met. To prove the common-law elements of adverse possession, the Hunts had to
show that they have been in possession of the property continuously for more than seven
years and that their possession has been visible, notorious, distinct, exclusive, hostile, and with
the intent to hold against the true owner.6
Both Daylan and James believed that their properties extended beyond the 324 contour
line. But they cannot acquire land by adverse possession merely by thinking that the land
belongs to them; they must do more.7 There is some evidence that they maintained the
4
Id.
5
See Ark. Code Ann. § 18-11-106(c) (Repl. 2003) (stating that the statutory
requirements are supplemental to the common-law elements of adverse possession).
6
See Trice v. Trice, 91 Ark. App. 309, 210 S.W.3d 147 (2005).
7
City of Waldron v. Huston, 235 Ark. 553, 361 S.W.2d 556 (1962).
5
Cite as 2010 Ark. App. 651
property, but Daylan and James also testified that there were no permanent structures on the
disputed tract, that they knew that they had to allow water to travel across the property, and
that they asked for Entergy’s permission before building a boat dock on the lake. This
evidence is insufficient to show that the Hunts possessed the disputed tract, much less did so
against Entergy’s interest.
The Hunts failed to establish a genuine issue of material fact as to whether they
adversely possessed Entergy’s property. The circuit court properly granted Entergy’s motion
for summary judgment. Therefore, we affirm.
Affirmed.
R OBBINS and K INARD, JJ., agree.
6
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