Sutton v. Gardner
2011 Ark. App. 737
Ark. Ct. App.2011Background
- Eight Thomas Gardner heirs dispute a 28-acre tract in Van Buren County received intestately after Thomas's 1961 death.
- Nina Gardner quitclaimed 28 acres to Zillah in 1983; Zillah later conveyed her interest to Charlie Gardner in 1988.
- Jessie Gardner and Wanda conveyed their interest to Charlie Gardner in 1988 via quitclaim deed.
- A 1994 partition action by Rolen, Tillery, and Bramlett was dismissed without prejudice in 2001; appellee was a defendant and raised adverse possession as a defense.
- Bessie Tillery filed a partition action in 2005 seeking sale and distribution; appellee counterclaimed to quiet title based on color of title, taxes, and adverse possession.
- Circuit court in 2010-2011 found appellee held color of title under Ketchum v. Cook and granted quiet title to the portion obtained from Zillah; adverse possession, already established before 1995, supported the result.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Saving statute applicability | Tillery argues 16-56-126 bars appellee. | Gardner contends possession and theory fall outside the saving statute; no refiled action loss. | Saving statute did not bar appellee. |
| Res judicata effect of 2001 dismissal | Tillery asserts prior dismissal on merits bars current claims. | Gardner argues dismissal without prejudice is not on the merits; res judicata inapplicable. | Dismissal without prejudice is not an adjudication on the merits; res judicata does not apply. |
| Adverse possession sufficiency pre-1995 | Appellee must show color of title and tax payment post-1995. | Color of title and taxes not required for vesting before 1995 if possession was exclusive and hostile. | Appellee established pre-1995 adverse possession vesting before 1995; color/tax proof not needed. |
| Co-tenant adverse possession notice | Not explicitly stated as a separate issue by Tillery; presumptively contends lack of notice defeats adverse possession. | Co-tenant possession requires notice or hostility; Ipses adequate here. | Not necessary to resolve separately; evidence supports hostility/notice context for co-tenant adverse possession. |
| Unclean hands defense | Implied that appellee's threats bar relief. | Court did not rule on unclean hands; not addressed on appeal. | Court did not decide on unclean hands. |
Key Cases Cited
- Ketchum v. Cook, 220 Ark. 320, 247 S.W.2d 1002 (1952) (color of title standard in adverse possession analysis)
- Shelton v. Jack, 239 Ark. 875, 395 S.W.2d 9 (1965) (possession related to adverse-possession tolling)
- Eades v. Joslin, 219 Ark. 688, 244 S.W.2d 623 (1952) (possession duration & statutory considerations)
- Schrader v. Schrader, 81 Ark.App. 343, 101 S.W.3d 873 (2003) (pre-1995 vesting and statutory change implications)
- Tiner v. Tiner, 2011 Ark. App. 478, 385 S.W.3d 326 (2011) (adverse possession and family co-tenancy considerations)
- Crooked Creek, III, Inc. v. City of Greenwood, 352 Ark. 465, 101 S.W.3d 829 (2003) (dismissal without prejudice not adjudication on merits)
- Magness v. McEntire, 305 Ark. 503, 808 S.W.2d 783 (1991) (res judicata principles in Arkansas appellate context)
- Bell v. Hoofman, 2010 Ark. App. 377, 375 S.W.3d 668 (2010) (claims dismissed; appellate treatment)